Understanding Tort Compensation: Brain Injury Compensation in BC motor vehicle accidents
This paper by Rose Keith, JD, experienced brain injury lawyer, considers compensation that may be available for an individual who has suffered an acquired brain injury following a motor vehicle accident. Motor vehicle accidents are the leading cause of brain injury. The principles described below are equally applicable to any traumatic event that results in injury and for which compensation from the party at fault may be sought.
Part 7 v. Tort
There are 2 separate and distinct sources of compensation that may be available to an individual injured in a motor vehicle accident in British Columbia. Those at Part 7 benefits and tort compensation.
The Part 7 or no fault compensation is available to the individual regardless of who is at fault for the motor vehicle accident. These benefits are paid by the Insurance Corporation of British Columbia ("ICBC"). The Part 7 benefits are an insurance type of compensation, with strictly defined entitlements and limitations on what is available.
Tort compensation refers to when the individual seeks compensation from the party who is at fault for the injury. Tort compensation compensates the individual for what has been lost due to the injury. The goal of tort compensation is to put the injured person as close as possible to the position that he or she was in prior to the injury through monetary compensation. This article will focus on understanding tort compensation.
Tort -- What's Available
The purposes of a tort award is to put the injured party in the position that he or she would have been in had they not been the victim of another party's negligence. The first prerequisite to a tort award is that another party must be at least partially at fault for the injury. Recoverable compensation is dependent upon the level of fault of the other party. For example, if the other party is found to be only 30% at fault for an injury, compensation will be limited to 30% of the amount found to be necessary to return him to the position that he was prior to the accident.
There are 5 different areas under which compensation may be awarded. They are as follows:
1. Non-pecuniary Damages
The purpose of non pecuniary damages is to compensate the individual for the pain suffering and loss of enjoyment of life that they have suffered as a result of the negligence of another. The Supreme Court of Canada has described non pecuniary damages as a means of providing solace to the individual for the loss of enjoyment of life that they have experienced as a result of injury. The purpose of the non-pecuniary award is to allow the substitution of other sources of satisfaction for those that have been lost. The money awarded is intended to be used by the individual to make his or her life more bearable and to provide reasonable solace for his intangible losses.
In British Columbia we have standardized jury instructions which are given by a judge to a jury to assist them in assessing damages in a personal injury case. The standardized jury instructions regarding non-pecuniary damages provides an excellent description of this type of damages and the way that the jury is directed to assess the value to be placed in the loss of enjoyment of life. Those jury instructions are as follows:
2. Past Wage loss
The amount awarded for non pecuniary damages contemplates that the individual may continue to suffer a loss of enjoyment of life due to his injury following the trial. Non pecuniary damages are awarded to compensate the individual for the loss of all the intangibles that result from an injury. Assessment of this loss requires an assessment of what the individual was like prior to the injury and what his life more likely than not would have been like had he not suffered the injury. This is then contrasted with what the individual's life has been like since the injury and what his life is likely to be like in the future.
This award is to compensate the individual for loss of income that he otherwise would have earned if he had not been injured. This is based upon a comparison of what would have been earned had the individual not been injured, and what has been earned, up to the date of assessment, whether that be at trial or through settlement. Assessment of past loss of income involves an assessment of what the past would have held, but for the injury, on a balance of probabilities. The question considered by a trier of fact is "but for the accident and injury, what income would the plaintiff have earned?" There must be proof both of causation and of the loss itself. In other words, the plaintiff has to prove that it is because of the injury that he has earned less than he would have earned if he had not been injured.
3. Future loss of income
This award is to compensate the individual for loss of earnings after the date of assessment of loss. This is often characterized as a loss of opportunity to earn income, or a loss of capacity to earn income. The purpose of this award again is to put the individual in the position he would have been in if he had not been injured. Damages may be awarded if the court finds that there is a real or substantial possibility that the individual will earn less money in the future than he would have, if he had not been injured in the accident. Damages may also be awarded if a court determines that the individual's ability to earn an income in the future may be compromised, regardless of whether this translates into actually earning less money in the future. If it is demonstrated that the injury has the potential to impact on the individual's ability to earn money in the future, putting the person in the position that he would have been in had he not been injured requires compensation for this loss of income earning capacity.
The consequences of an acquired brain injury can be devastating to an individual's ability to be competitively employed. The Brain Injury Association of American lists the following as consequences of brain injury:
i. short term memory loss;
Each of these consequences on their own would impair an individual's ability to earn an income. Any of these in combination could result in a significant negative impact on income earning ability.
The terms mild, moderate and severe do not necessarily reflect the level of impairment of an individual's ability to earn an income. [emphasis added] An individual with a "mild" brain injury may be totally disabled from working. Having a "mild" brain injury does not mean that a person will have "mild" problems.
the above article is by Rose Keith, JD brain injury lawyer and former President of Trial Lawyers Association of B.C.
Articles by brain injury / personal injury lawyers:
Rose Keith has over 20 years experience in ICBC injury disputes settlements - working with clients with soft tissue, whiplash, fractures, and traumatic brain injuries. She is also experienced with Medical Malpractice and Employment Law.
Home & hospital meetings available.
Call for consultation
1486 West Hastings St., Vancouver, BC V6G 3J6
Toll Free: 888.893.6134
Web site: www.rosekeith.bc.ca
See her articles:
Bruce Lemer, LLB
Over 30 years as an ICBC injury claims lawyer - Bruce Lemer has represented people throughout B.C. with a wide variety of serious motor vehicle injuries. His clients have received settlements or judgements for:
An experienced personal injury lawyer is necessary to ensure you obtain appropriate damages for your injury, care and lost earnings.
Bruce is also experienced with: Motorbike accidents, Medical malpractice-negligence
& Consumer class actions e.g. Red Cross tainted blood class action
Sandra Banister, Q.C.
Sandra has 30+ years experience as personal injury plaintiff's lawyer for ICBC settlements. She is also well known as a labour & employment lawyer.
Experienced with MVA injuries involving cars, motorbikes & cyclists, resulting in brain injuries, spine injuries, paraplegia, quadriplegia, bone fractures, and soft tissue injuries including whiplash etc.
CALL FOR FREE CONSULTATION
GREG CALDER, LLB
Experienced with plaintiffs' only ICBC Personal Injury Cases since 1986.
"He has handled claims involving:
See his profile at jefferycalder.com/pg2our.html
Jeffery and Calder
Other Metro Vancouver Personal Injury Lawyers
Vancouver, West Broadway Office Near VGH Hospital
Z. Phillip Wiseman, JD, ICBC injury claims - law office 2 blocks from Vancouver General Hospital (VGH)
Injured in a car accident? Feeling alone? Unsure what to do?
ICBC is interested in giving you as little as possible. ICBC does not represent your interests once you are hurt in an accident and will pressure you into taking an unjust settlement. You need someone on your side to ensure your rights are respected and you get a fair settlement.
For more than 25 years, Vancouver personal injury lawyer Z. Philip Wiseman has been helping clients get the compensation they deserve - his team have the experience to help you.
由Philip Wiseman大律師辦理超過36年豐富經驗、 擅長於辦理個人損傷索償、 同時亦精於辦理汽車意外、 因有人疏忽而導致之滑倒受傷、 以及有關行人、 巴士及的士個案操華語經驗顧陪同律師與閣下豬個案、 查詢請聯絡： Z。 Philip Wiseman Law Corporation曹金芳Kim Tao（ 廣東語） 《 Personal Injury Lawyers》 604-873-8446 Cel： 778-288-5191（ 晚上及周末） ＃ 401-777 West Broadway, Vancouver, BC.
Other lawyers: SURREY, BC & Metro VancouverDil Gosal, BA, JD, LLM
ICBC injury claims lawyer & Criminal Defense Lawyer
N.B. Lawyers see also reference article 6 trial decisions in 2006 that considered quantum of damages for individuals that had suffered a brain injury. The quantum of non-pencuniary damages awarded ranged from $110,000 to $275,000
Comments on ICBC insurance rates increases announced late 2017 - and rationale for increased costs passed on to car insurance - - read article comment by Rose Keith, JD brain/personal injury lawyer and former President of BC Trial Lawyers Association; article is ICBC-blames-lawyers-for-increasing-rates-R-Keith2017a.html
© 2017.08.28 - photos of lawyers and their content used with permission of the lawyers listed above