What Are the Two Types of Claims That I May Have?

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by Peter Buxton, trial lawyer

If you qualify for insurance coverage with the Insurance Corporation of British Columbia and you have been injured in an accident that is not your fault you may have two types of claims:

  • A Tort Claim against the person who caused the accident, and
  • A Part VII Claim arising from the Regulations of the Insurance (Vehicle) Act.

Your Tort Claim

In civil law jurisdictions like B.C. a tort is a civil wrong.  Negligence is a type of tort. If you can prove that you have suffered injury as a result of the negligence of the person who caused the car accident, you can advance a tort claim.  The claim is made against the other person personally and if they have valid insurance with ICBC they will be provided with a defence through a lawyer appointed and paid for by ICBC.

In addition to proving liability you will be required to prove your damages arising from your injuries.  There are several heads of damages discussed in an earlier blog post.

Your Part VII Claim

Your right to pursue a Part VII Claim is a statutory right set out in Part VII of the Regulations to the Insurance (Vehicle) Act of B.C.  Hence the name.  That part of the Regulations defines the so-called “no fault benefits” to which you may be entitled.  You are entitled to them regardless of fault for the accident.  Even if you caused the accident, and if you have not breached your insurance coverage (for instance by driving while impaired), you may be entitled to receive benefits for coverage of reasonable medical and rehabilitation expense, partial wage loss indemnity, homemaker benefits to pay for someone to come in to your home to help if you are disabled and death benefits payable to your surviving spouse or children.

Reporting Your Claim to Dial a Claim

As soon as possible after your accident you should call the ICBC Dial a Claim service or go online and report your claim. When you do so, do not discuss liability for the accident or things that others may have told you about how the accident happened.  If you were injured in the accident make sure to report your injuries and state that you are making a claim for them and any property damage to your vehicle.

Should I Give a Statement to ICBC About the Accident?

As part of the reporting process you may be asked to take your vehicle to an ICBC Claim Centre and speak with an adjuster about the accident.  Once there, you may be asked to sign certain forms and give a statement about how the accident happened and what your injuries are.  Be aware that most often this statement will be written down and you will be told that you need to sign it.  There is no obligation at law for you to provide a signed written statement to ICBC at the commencement of your claim.  However, if you are making a claim for Part VII no fault benefits you may have to provide a statement and abide by certain time limits.  But, you do not have to sign the statement.

Section 97 of the Regulations to the Insurance (Vehicle) Act says that

(1) Where an accident occurs for which benefits are provided under this Part, the insured shall

(a) promptly give the corporation notice of the accident,

(b) not later than 30 days from the date of the accident, mail to the corporation by registered mail, or deliver to the nearest claims centre of the corporation, a written report on the accident with particulars of the circumstances in which the accident occurred and the consequences of the accident, and

(c) within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

Ideally you should seek out and retain a lawyer to assist you in providing a statement.  If your lawyer writes the statement and sends it to ICBC on your behalf, then ICBC and the opposing party cannot use the statement against your interest in any subsequent court action on your claim.

Take advantage of free initial consultation services offered by many personal injury lawyers to discuss these issues.

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

The Contingency Fee Agreement

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by Peter Buxton, trial lawyer

WHAT IS THE CONTINGENCY FEE AGREEMENT?

Most personal injury lawyers in British Columbia offer their clients a Contingency Fee Agreement whereby they agree to do the legal work for a percentage of the proceeds of settlement or judgment at trial.  This is favourable for the client because they do not have to pay the legal fee until the conclusion of the claim.

As well, most personal injury lawyers will agree to carry the expenses, known as disbursements, related to the claim until the conclusion of the claim, when they are generally paid by the other party in addition to the amount to be paid to the client.  The lawyer will likely expect to be paid interest on those disbursements in return for funding them over the time it takes to settle the claim or get judgment at trial.

HOW MUCH ARE THE PERCENTAGE FEES?

Most experienced personal injury lawyers charge between 25% and 33 1/3% for work they do on the file.  It can be sliding scale starting at 25%, going up to 30% upon the passage of time and a significant step being taken in the lawsuit such as Examination for Discovery (more later) and then going up again to 33 1/3% as your lawyer makes final preparation for and attands at trial.  Note that the Rules of the Law Society  provide that subject to the Supreme Court approving higher fees, the maximum compensation to which a lawyer is entitled in a claim for personal injury or wrongful death arising out of the use or operation of a motor vehicle is 33 1/3% of the total amount recovered.

WHAT ARE DISBURSEMENTS?

Disbursements are the expenses that must be paid from time to time to fund personal euro-870765__340injury litigation.  They include court fees, transcript fees, medical records and opinion fees, office expenses and other miscellaneous outside fees relating to the lawsuit.  The Contingency Fee Agreement often provides that these expenses are paid from time to time by the lawyer and that the client can reimbuse the lawyer as the fees are incurred or choose to have the lawyer carry the expenses until the conclusion of the claim when they are to be paid together with interest.  This is a matter that may be discussed between client and lawyer at the time of the first meeting.

WHAT ABOUT TERMINATING THE CONTINGENCY FEE AGREEMENT BEFORE THE CONCLUSION OF THE CLAIM?

The Contingency Agreement will set out the terms under which the lawyer or the client may choose to end the retainer agreement and how the lawyer’s fees and any disbursements owing might be paid out or protected.  Generally a client has the right to terminate the agreement for any reason while a lawyer may only do so at certain times and for certain reasons.  This is something that should be fully discussed and understood by both parties during the first meeting.

Most Contingency Fee Agreements only govern the conduct of the litigation up to and including the conclusion of the trial and any related hearings to determine final points of law or the costs that one party may owe to the other.  If there is an appeal by either party from the judgment at trial in the case, the lawyer and client will need to enter into another agreement.  However, while each party may have the right to appeal a judgment at trial, that course of action is rare.

CAN THE CONTINGENCY FEE AGREEMENT BE REVIEWED BY ANOTHER PARTY?

Most lawyers will allow you to consult with friends, family or another lawyer regarding the terms of the Contingency Fee Agreement before you sign it.  As well, after signing the Agreement, the client entering into a Contingency Fee Agreement has the right until 90 days after the Agreement was made, or the retainer between the lawyer and the client was terminated (at the conclusion of the claim), to apply to a District Registrar of the Supreme Court of British Columbia to have the Agreement reviewed.  If necessary the Registrar can order changes to the Agreement. This right exists even if the client has paid the lawyer under the agreement.

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

How Do I Find a Personal Injury Lawyer

by Peter Buxton, trial lawyer

There are many lawyers who will take on your personal injury claim, but do not be too quick to sign up.

Everyone has an Uncle Billy who had a lawyer do his Will or help him buy a house back in the day and apparently that same lawyer has also done an ICBC case.  Be careful!

HOW DO I FIND THE RIGHT LAWYER?

Finding the right lawyer might be one of the most important things you do in bringing yourlawyer-28838__340 claim.  Ideally you want a lawyer with experience in personal injury claims and dealing with the Insurance Corporation of British Columbia.  Make sure the lawyer you consider has trial experience and is able to properly deal with the complexities of your case.  There are some personal injury lawyers who will start your claim with ICBC and help you try to settle, but they are not prepared to take your claim to trial if need be.  ICBC keeps track of which lawyers go to trial and what their success rate is and you should too.  Hiring a trial lawyer does not mean that your case will go to court.  That is your decision to make in consultation with your lawyer. However, having a successful trial lawyer on your side will tell ICBC that you are serious about your claim and that you are prepare to go to court if necessary to get a fair settlement.

WHAT HAPPENS WHEN I MEET THE LAWYER?

Most personal injury lawyers will not charge you for your initial consultation.  You can speak with most lawyers for up to an hour to discuss your claim and make a decision about whether that lawyer is right for you.  During this initial interview you should be speaking with a lawyer, not a paralegal or legal assistant.  If a lawyer does not have the time to meet with you personally do you really want to trust them with your claim?

Make sure to ask the lawyer the following questions:

  • Do they  do litigation (civil trial work) and how long they have been practicing in the area of personal injury law;
  • Do they go to court; and
  • Will they be your lawyer throughout the whole claim or will your file be handed off to another lawyer once you sign up.

WHAT DO I BRING TO THE FIRST MEETING?

Make sure you bring all of your papers and documents relating to the accident and your injuries to the first meeting with your lawyer.  This includes:

  • Scraps of paper with information about the accident scene and witnesses;
  • Pictures of the accident scene, damage to the vehicle and the injuries;
  • Information, letters and and documents that you received from ICBC, including a copy of any written statements you may have given to ICBC (more later);
  • Information, letters, prescriptions and medical records from your doctors;
  • Information, letters and documents relating to your employment and time off work; and
  • Receipts for any out of pocket expenses that you may have had as a result of the accident and your injuries.

This information will help your lawyer understand your case and begin to advise you regarding the next steps to be taken in making your claim and dealing wiht ICBC.

The lawyer will discuss the fee and review a Contingency Fee Agreement that you may sign to retain the lawyer.

 

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550 ext. 207.

Visit my website at https://panlegal.ca/peter-buxton-qc

Do I Have a Personal Injury Claim?

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by Peter Buxton, trial lawyer

If you have been injured in a car accident that was not your fault you may be entitled to make a claim for your injuries and loss.  In British Columbia you should report the claim to ICBC by calling Dial-a-Claim at 1-800-912-4222 or in the Lower Mainland at 604-520-8222.  When you speak to the operator make sure to tell them that you have been injured and want to make a claim.  You will be given a claim number and information about starting the claim.

At the scene of the accident take pictures of EVERYTHING with yout phone.  This includes the damage to the vehicles, the position of the vehicles on the roadway and the weather and road conditions.  These pictures will help you remember the facts of the accident and your lawyer will need them to help you settle your claim.

Starting a claim does not mean that you need to start a law suit.  Often your claim can be settled by you or your lawyer with ICBC directly.

If you hire a lawyer to act for you their fee may be a “Contingency Fee” calculated as a percentage of the settlement with ICBC.  Percentages vary but the usual fee in B.C. is 25% to 33%.

When you see your doctor and other care givers make sure to tell them all of the injuries that you believe were caused b y the accident.  But, understand that ICBC or other insurance companies will eventually see all records relating to the accident.  They can use these records to defend the claim so do not exaggerate your injuries or mislead your doctors and care givers.  Tell the truth.

If you do have a lawyer handling your claim and you are not satisfied with how your claim is being handled you can change lawyers, usually without any increase in cost to you. Many lawyers in B.C. will give you a second opinion about your claim with no charge to you for this service.

 

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550 ext. 207.

Visit my website at https://panlegal.ca/peter-buxton-qc

Why Blog.

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by Peter Buxton, trial lawyer

panorama

[pan-uhramuh

noun

– an unobstructed and wide view of an extensive area in all directions

– a comprehensive survey, as of a subject


 

This is the third post on a new legal blog.  It’s time for an introduction.

I am a lawyer practising personal injury law in British Columbia. Together with 5 other lawyers I practice at  Panorama Legal located in South Surrey. We practice in a variety of legal areas so our name is appropriate. While our firm is new, all of us have extensive legal experience and background. You can find our Facebook Page here and our website here.

Don’t worry, I am not going to tell you what great lawyers we are, the purpose of this blog is to give you legal information and content to help you understand personal injury law and perhaps help you deal with your personal claim arising from an accident.

Check back for regular updates.  In the first few weeks I am going to help you to decide if you have a claim, find and retain a lawyer to represent you and work with that lawyer to get a successful settlement of your claim. I will explain the primary steps in personal injury litigation including commencing an action in the Supreme Court of British Columbia, preparing for and attending at Examination for Discovery, mediation and if necessary trial.

After the basics, I will write about developments and strategies in the area of personal injury litigation and how you can use them to your benefit in making your claim.

I hope you take some time to follow the blog and let me know if you have any questions.

 

If you have any questions about this post or your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550 ext. 207.

Visit my website at https://panlegal.ca/peter-buxton-qc

Have an accident? No thanks, I just had one!

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by Peter Buxton, trial lawyer

DO I HAVE A CLAIM?

  • Claims for injuries, loss and expense re unique. No two of them are the same.  If you are injured as a result of the carelessness or negligence of another person, you may have a claim for money damages for your injuries, loss and expense resulting from that negligence.  One of the most common types of claim is for damages arising from a motor vehicle collision.
  • Note that in British Columbia the time limit for bringing most claims for damages is two years from the date that you realized that you suffered a loss. This is usually the date of the motor vehicle collision.

WHAT ARE MY DAMAGES?

  • You may have a claim for pain and suffering and loss of enjoyment of the amenities of life. These are known as non-pecuniary damages and they depend on each individual, the circumstances of their injury and their lifestyle and how it has been affected.  Non-pecuniary damages are not fixed in value but depend upon established case law.  Your lawyer can research the law and give you an opinion of the value of your claim for pain, suffering and the loss of enjoyment of life.
  • You may also have a claim for general damages that might include past wage loss, future loss of opportunity or capacity to earn income, past expenses caused by the injuries sustained in the accident and the future cost of care to put you in the same position as if you had not suffered the effects of the negligent act of the other person. Medical opinions from your doctors and other care givers will help your lawyer calculate the duration and amount of these benefits.
  • Any benefits that you are entitled to through disability insurance from your work, Employment Insurance sickness benefits, or Social Assistance may be deducted from your claim for loss of income.
  • The value of your claim cannot be fully calculated until your lawyer is able to obtain the medical and economic information and evidence to prove the claim. Your doctors and other care givers are important to your claim and your lawyer will consult fully with them to develop your claim and bring the proper evidence to bear at settlement or trial.

HOW LONG WILL MY CLAIM TAKE TO SETTLE?

It is impossible to give an estimate of how long your claim will take to settle.  It depends on many factors such as:

  • Liability – can it be easily determine who was responsible for the injury? Will the other party (often represented by the Insurance Corporation of British Columbia) admit or contest liability?
  • The injury – How serious is the injury? Is it a minor injury or something that will affect you for your entire life?
  • Although it cannot be easily estimated how long your claim will take to resolve, it is always your decision whether you wish to settle your claim or not.
  • Your lawyer will work with you to obtain the best evidence to help maximize the value of your claim and achieve a fair settlement, perhaps using mediation or trial to get a result.
  • You should be careful not to rush to a settlement before you know the full extent of your injuries and your doctors can determine whether or not they will continue to affect you in the future.  Only then can you, with the help of your lawyer, put a value on your claim and begin the settlement process.

 

If you have any questions about this post or relating to your motor vehicle accident or injuries contact me today for a free consultation by emailing me at pbuxton@panlegal.ca or calling 604.372.4550 ext. 207.

Visit my website at https://panlegal.ca/peter-buxton-qc