Is this a fair offer from ICBC?

“Is this a fair offer from ICBC?”…. “How much should I settle for?”… “What is my claim worth?” These are just some of the questions I regularly get asked. If I could create an app that would answer these questions, many personal injury lawyers would be out of business. If you are a tech person, don’t get too excited about the business opportunity. The reason there is no app for these questions is because each claim is unique and there is a significant amount of information and analysis that goes into properly answering these questions. Even an experienced personal injury lawyer will not be able to tell you the precise value of your claim over the phone or by email, but with just some basic information, he or she can often advise you if the offer appears to be too low. As for what your claim is precisely worth, that is more involved. Below are some of the questions that help personal injury lawyers assess the value of your claim.

Have you recovered from your accident? – If you have not recovered, or you have not reached maximum medical improvement, chances are it is too early to properly assess whether the offer is fair, but it is not too early to retain a lawyer. For more information on the right time to assess the value of your claim, see my previous article: When Should I settle with ICBC?

Who is at fault for your accident? – The value of your claim may be reduced if you are partly at fault for your accident. For more information on proving liability, see my previous article: Proving Liability in an Injury Claim.

Did you contribute to your injuries? – If you are partly to blame for your injuries, such as not wearing a helmet while riding a bicycle, not wearing your seatbelt while riding in a car or traveling with an intoxicated driver, than you may be found partially or completely at fault for your injuries and the value of your claim will be reduced.

Were your injuries caused by the accident or something else? – The defendant is only responsible for compensating you for injuries caused by the accident. A defendant does not have to pay for injuries that are unrelated to the accident or symptoms that would have appeared absent the accident. The defendant is responsible for aggravation of pre-existing conditions. Causation can be a very tricky issue. For more information on proving causation, see my previous article: Proving Causation in an Injury Claim.

What are the damages you have suffered as a result of the accident? – Once you have addressed the above issues, the next question is what are the damages you have suffered? There are several different categories of damages that need to be assessed and added up to determine the value of your claim. The main categories are set out below:

Pain and Suffering – you are entitled to be compensated for the pain and suffering you have endured as a result of the accident. The information generally taken into consideration includes: your age, nature of the injury, severity and duration of pain, disability, emotional suffering, loss of impairment of life, impairment of family, marital and social relationships, impairment of physical and mental abilities, loss of lifestyle, and stoicism (Stapley v. Hejslet 2006 BCCA 34). To arrive at a figure, the facts of your case are compared to the facts of other similar cases that have gone before the court. There are no specific values for specific injuries. Experienced personal injury lawyers can often ballpark the pain and suffering value of claims, without looking at the case law at least in terms of small (under $25,000), medium ($25,000 to $100,000) and large claims ($100,000-$350,000). The present upper limit is approximately $350,000 which is reserved for catastrophic cases.

Special Damages – you are entitled to be compensated for all reasonable expenses that you have incurred as a result of the accident. These include things like massage therapy, physiotherapy, chiropractors, psychologists, counsellors, acupuncture, medication, medical devices, mileage to and from appointments, parking or taxi fares for appointments, nursing costs, etc. Basically, if you had to buy it because of your accident and it was a reasonable and necessary expense, you can recover it.

Past Wage Loss/Past Loss of Earning Capacity – you are entitled to be compensated for income you would have earned, but did not earn as a result of the accident. If you did not suffer a wage loss, but lost time from a sick bank or holiday bank you are also generally entitled to be compensated for this loss. If you are self-employed or a business owner and you suffered financial loss as a result of your accident this is also compensable.

Future Wage Loss/Future Loss of Earning Capacity – if you have suffered a disability as a result of the accident and there is a real and substantial possibility that your disability will have an impact on your ability to earn a living in the future than you are entitled to compensation for this loss.

Future Cost of Care – if you will have ongoing expenses related to the accident that are medically justified, such as assistance, equipment, facilities and treatment costs, than you are entitled to be compensated for those expenses provided that they are reasonable in the circumstance.

Past and Future Loss of Housekeeping Capacity – if you are unable to perform household tasks as a result of the accident than you are entitled to compensation for this loss.

In Trust Claim – if as a result of your accident a friend or family member provides services outside the range of his or her normal duties, and if that individual had not stepped in you would have otherwise had to hire someone else to do those duties, than you are entitled to claim compensation in-trust for the services of that person.

For more information on proving damages, see my previous article: Proving Damages in an Injury Claim.

Have you followed your health care providers’ advice? – You are obligated to do everything you reasonably can do to get better. This means that you need to seek medical assistance and generally speaking, follow the advice of your caregivers. If you choose not to follow their advice, this is called a failure to mitigate your damages and the value of your claim may be reduced.

Once all of the above information is considered and the supporting evidence is provided, a personal injury lawyer can provide you with a proper legal opinion on the value of your claim. If you have received an offer from ICBC and want to know if it is fair, I recommend contacting a personal injury lawyer. Most personal injury lawyers do not charge for phone calls, emails or initial consultations.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.