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Hergott: Capping injury claims

Lawyer Paul Hergott discusses ICBC claims and ‘minor’ injuries

Reported discussions about “capping” injury claims reveal a misunderstanding about how ICBC claims work.

Attorney-General David Eby is quoted to have said: “We’re looking at caps on minor pain and suffering awards because there’s been an explosion in the size of awards people receive for minor whiplash and minor injuries.”

Who has been feeding him that “fake news”? Clearly, someone without a clue about how ICBC claims work. Or perhaps an ICBC representative with an agenda?

I will explain with a scenario that faces far too many British Columbians, and which you could face on your daily commute.

A distracted driver crashes into the back of your vehicle. It is ridiculous, and maddening, how often that type of crash occurs.

You walk away from the collision without a hint of injury. That’s the way whiplash usually works. It’s not until a couple of hours or so later that the damaged tissues become inflamed and symptoms come on.

Waking up the next morning is your “crash course” in what whiplash is all about. You have a pounding headache and can barely move your neck.

The current law in British Columbia is that if someone hurts you, you have a legal claim against them for fair, financial compensation for that injury.

But when the injury occurs in a car crash, liability insurance removes the bad driver’s accountability and passes it on to ICBC.

That’s why it’s called an “ICBC claim”.

What is the value of your ICBC claim in this scenario?

If you’re lucky you will miss no time from work and be back to normal, as if the collision had never occurred, within a couple weeks without the need for any care.

Now that’s a minor whiplash! If ICBC is choosing to pay more than $1,000.00 of compensation for that kind of claim, they are horribly mismanaged.

Why? Because a very minor claim requires very minor compensation. And the amount of that compensation can be determined by looking at the very consistent results of personal injury claims that have proceeded to trial.

Our civil justice system is based on strict adherence to legal precedents. There could no more be an “explosion in the size of awards people receive for minor whiplash and minor injuries” than there could be a dramatic shift in any other court decisions. It’s simply not possible.

On the other hand, you could be unlucky.

Nobody, not even a medical specialist, can predict how long your headache and neck pain will last, how much care will be required, or what impact your symptoms will have on your income and day to day activities.

The exact same collision dynamics that leave one victim with two weeks of pain can cause another to never, ever return to a pain-free life.

Everyone is different. No two necks or backs will respond in exactly the same way.

What compensation is fair for someone saddled with a lifetime of chronic neck symptoms and headaches? Again, one simply needs to look at the very well established legal precedents. The starting point for “pain and suffering” compensation for a permanent injury is in the range of $35-40,000.00.

Plus income loss and other actual proven losses.

Now ICBC is talking about “capping” pain and suffering compensation for “minor injuries” at a level of $4-6,000.00.

That whiplash scenario I gave you is what other jurisdictions imposing caps refer to as a “minor injury”. There’s no hospital visit. No broken bones. Just pain.

A lifetime of pain.

Yes, capping compensation rights for injured victims would save ICBC money. They would get away with compensating you 10-15 percent of the starting point of what our court system has firmly established is fair for your lifetime of pain.

But should you be the one paying for that bad driver’s behaviour? By being under-compensated for your pain and suffering?

Oddly, “caps” pass accountability for bad driving from the bad driver right back to the victim.

How about we fix the real problem and bring about accountability for bad drivers?

As it stands, the RCMP don’t show up to most of these rear-end collisions, and the distracted driver doesn’t get as much as a traffic ticket. With enough crash-free years under his or her belt, their insurance premiums won’t even go up at all.

Rather than the bad drivers being held accountable, we good drivers are hit in the pocketbook with increased insurance premiums. How’s that for a horrendous failure of teaching good behaviour?

We raise our children to understand that bad behaviour comes with consequences. This is a foundational principle of how our society works. Where along the line did we lose sight of this basic principle with auto insurance?

Other types of insurance, where we don’t have any control over adverse consequences, are different. We are paying a premium to protect us against unforeseeable losses, not our own bad behaviour.

It is only negligence that gives rise to an ICBC claim. We have complete control over whether or not we are negligent behind the wheel.

If you choose to pay so little attention behind the wheel that you would drive into the back of another vehicle, you should face consequences. In my view, those consequences should be at least as significant as those imposed when you choose to drive after consuming alcohol.

A 90-day driving prohibition, 30-day vehicle impound, and a remedial safe driving course would immediately adjust driving attitudes just like it did for impaired driving.

Another idea is to require the bad driver to retain at least some financial accountability. Imagine the increase in driver attentiveness if we make distracted drivers pay the first $5,000.00 of fair compensation for the injuries they cause.

Oh, and ban cell phone use while driving. How can we be talking road safety and “fixing ICBC” with a straight face while hands-free texting and talking on a cell phone remains legal?

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