Your ICBC claim's worth is based on what you've lost and the amount of harm done to you as a result of your car accident. Your harms and losses are called damages.
Harms and losses form your claim from the time of your accident until as long as you are expected to suffer each particular harm and loss. The following are the most common harms and losses:
- pain and suffering and loss of enjoyment of life;
- loss of past income;
- loss of future earning capacity;
- loss of opportunity;
- out-of-pocket expenses (special damages);
- cost of your future care; and
- cost for help with your family responsibilities and your home.
What are these harms and losses and how are they calculated?
1. Pain and suffering and loss of enjoyment of life.
Pain and suffering includes all your symptoms, pain, psychological problems, cognitive impairments, and emotional difficulties that were caused or materially contributed to from your car accident). Loss of enjoyment of life is your limitations stemming from your symptoms, pain, psychological problems, and emotional difficulties. For example, if you suffered a whiplash injury, your pain and suffering is your neck pain and headaches and perhaps back pain. Your resulting loss of enjoyment of life is all the things you can't do or can't do as well or as frequently as you could do before your car accident.
The Supreme Court of Canada said in 1978 that money is awarded for pain and suffering and loss of enjoyment of life because "it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way (from the court decision in Andrews v. Grand & Toy Alta. Ltd. [1978] 2 S.C.R. 229.
In the Andrews case the Supreme Court of Canada put a maximum on the amount of money that could be awarded for pain and suffering and loss of enjoyment of life. In 1978 the cap was $100,000. As of December 2007, taking inflation into account, the maximum was $320,000.
Therefore, if you sustained X, Y, and Z injuries, the court will use previous cases of similar injuries as a guideline in determining how much to award you. Since every injured person has unique circumstances as well as similarities to previous cases, the court will also consider your circumstances in coming up with a damages award.
2. Loss of past income
For income loss stemming from car crashes, the income amount awarded by courts is what an injured person's after-tax income would have been. The injured person must prove the income loss.
Presently, the tax deduction is calculated by adding up the entire income loss and then assessing as if it was earned at the time of trial. Then the previous tax year's marginal tax rates are applied. Consequently, if you were off work for more than one year, the tax rate applied may be higher than if your income was split up over the years you were off work. However, if your income loss is not for a full year and you had other earnings, those other earnings are not added to the income loss amount. This means that in this scenario your income loss deduction may be a lower marginal rate than all your earnings for that year warrant.
The only tax deduction available is the basic personal exemption.
3. Loss of future earning capacity
Damages are awarded for loss of future earning capacity when there is a substantial possibility that injured persons will have less income-earning capacity in the future. Because this award is based on the future, there is no way to determine it with mathematical certainty. Therefore courts determine it using a best or informed estimate based on the medical, educational, and employment evidence.
Another way courts term this loss is a loss of capital asset. The capital asset is the injured person's ability to earn income. Factors (from Brown v. Golaiy [1985 B.C.J. No. 31] the Court can consider when determining this loss are as follows:
- whether the injured person is less capable overall from earning income from all types of employment;
- whether the injured person is less marketable or attractive as an employee to potential employers;
- whether the injured person has lost the ability to take advantage of all job opportunities which might otherwise have been open had he [or she] not been injured; and
- whether the plaintiff is less valuable to himself [or herself] as a person capable of earning income in a competitive labour market.
4. Loss of opportunity
Generally this loss falls under the loss of earning capacity which is described above. However, sometimes the circumstances in a case are such where an injured person's loss is most accurately termed and considered a loss of opportunity. Usually this loss is the loss of opportunity to work or develop a particular vocation. An example from a British Columbia case is a triathlete whose injuries prevented her from entering the "very top rank" of professional triathletes (Bonham v. Smith [1998] B.C.J. No. 98) para. 42).
In order to prove a loss of opportunity, you must show a "reasonable chance of being successful" (Bonham para. 42).
5. Out-of-pocket expenses (special damages)
From the time of your auto accident to the date it's resolved you will almost certainly spend some money in some form or another as a result of your crash. These out-of-pocket expenses form part of your claim as a special damage.
In order to receive money for your out-of-pocket expenses, you must show that the money was spent and it was reasonable to spend the money. The following are expenses that can form part of your claim:
- transportation/mileage to medical visits;
- vehicle damage (if not already paid);
- vehicle rental costs;
- medical and rehabilitation expenses (i.e. physiotherapy, chiropractor, massage therapy, gym/pool memberships, etc.);
- extra hospital costs;
- dental expenses; and
- cost for past help in your home and yard.
6. Cost of your future care
At some point your claim will resolve by way of settlement or trial, yet you may still require treatment and care such as rehabilitation, fitness facility access, medication, equipment, and assistance, into the future. In order to successfully claim for future care, you must prove that it's a substantial possibility you will require it.
7. Cost for future help with your family responsibility and home (a.k.a. loss of housekeeping capacity).
If your injuries prevent you from doing some or all you used to be able to do and did in and around your home and for your family, then you can claim for future assistance in and around your home. Again the test for proof is that your loss of housekeeping capacity is a substantial possibility.
At the start of this article I said you are entitled to the applicable above damages if you aren't 100 per cent at fault for your car crash. If you are zero per cent at fault, then you receive all the damages assessed. However, if you are found 40 per cent at fault, then once all the damages are assessed under the above applicable harms and losses, the Court will reduce the amount by 40 per cent (or whatever per cent you were found at fault).
Source by Jon Dykstra
