British Columbia Auto Accidents
January 22, 2008
Ms. Jane Smith
Maple Ridge, BC
Dear Ms. Smith,
Re: Accident Claim – 2008
Thank you for consulting us about your claim. We confirm we are not acting for you, but we hope our advice helps you better understand your rights.
We understand ICBC may be taking the position that your claim is subject to their “low velocity impact” claim policy. The theory behind this policy is that the forces of impact between the vehicles in your accident were so slight as to be impossible to injure you. This policy is designed to save ICBC money, but very often works unfairly against people with valid injury claims.
As you know, ICBC fights these claims vigorously, refusing to pay any claim against the at fault driver (wage loss, out-of-pocket expenses and pain and suffering) even if your own doctors confirm you have been injured. This policy means you will not be compensated for your injuries unless you start a court action and the court awards you compensation.
If you wish to start a court action, you have a choice of two different courts: the Supreme Court of BC; or the Provincial Court of BC – Small Claims Division (commonly called Small Claims Court). If you choose the Supreme Court, ICBC may request and get a jury trial. They will present evidence suggesting that you have not been hurt and the jury may decide to deny your claim. ICBC is often successful against claimants using this defence with a jury. If they are successful, you could be responsible to ICBC for their legal costs, which could amount to many thousands of dollars.
Choosing to proceed in Small Claims Court involves much less risk. First, jury trials are not available in Small Claims Court, so your case would be heard by a Judge. Judges do not think much of evidence that attempts to relate the degree of vehicle damage to the existence of injuries. A Judge is likely to accept your claim if you have a doctor who will agree that you have been injured. Even if you are unsuccessful, you can only he held responsible to ICBC for a fraction of the amount for which you could be held responsible following a loss in Supreme Court.
Small Claims Court is designed so individuals can access the court systems without requiring a lawyer’s help. The Court Registry should be pleased to answer any procedural questions you may have and there are also written materials available to assist you, some of which are available at the Registry. You must ensure you have a written medical-legal report (s) from your doctor (s) as well as written documentation concerning any wage loss or out of pocket expenses. The downside of Small Claims Court is that your total recovery is limited to $25,000 per accident. (Provided that each accident, if there was more than one, is the subject of a separate court action.)
Your best approach, however, is to first attempt to get ICBC to change its mind about the classification of your claim. If you are successful, we would then be able to assist you and process your claim in the normal fashion.
To this end, you should be aware that ICBC recognizes some exceptions to its policy. First, if you have previously suffered an injury to the same area of the body as your present injury, your claim should be exempt from the policy. Second, your doctors can sometimes find objective signs of an injury with the use of X-rays or other diagnostic tools; this too could remove the claim from the minimal damage classification. Also, ICBC is supposed to look at the total damage to all vehicles involved in the accident, not just your vehicle damage. You can request that ICBC re-examine its decision to treat your claim as a low velocity impact claim on any of these bases.
If you intend to continue with your claim, please be aware that you must start a court case within two years of the date of the accident. Failure to start a court case within two years causes the claim to expire.
STEPHENS & HOLMAN
Simon J. Holman