Hergott: Filing a personal injury claim

Lawyer Paul Hergott talks injury claims and ICBC in his new column

What does it mean to have a personal injury claim? Or in the context of a car crash, an ICBC claim? And why do lawyers get involved?

If someone causes you harm, our laws hold them accountable to you.

Same as if someone borrows or steals from you: our laws hold the borrower or thief accountable to return what was borrowed or stolen.

These long entrenched principles go way, way back, brought over from England.

What is the level of accountability? To make you whole, returning whatever was taken.

This basic legal principle is referred to by the Latin term “restitution in integrum,” which means that the law attempts, so far as money can do this, to place a person in the same position as if the injury (or theft, failure to pay a debt, etc.) had not occurred.

Injuries are different from unpaid loans, where making you whole simply means returning the money with interest.

Injuries cannot be undone. All we’ve got to work with, to make injured victims whole, is dollars and cents.

Judges have wrestled with using dollars for injury compensation since the beginning of our court system. Hundreds, thousands and tens of thousands of legal decisions have established a solid base of legal precedent. Those with legal expertise can predict, within a reasonable range of accuracy, the amount of compensation likely to be awarded by a court for any particular injury situation.

The law doesn’t act automatically. The strong arm of the law does not swoop down and make you whole.

If a borrower fails to return a loan, you have a legal right to that money. But the only way to enforce that right is by pursuing a court judgment. Seeing the writing on the wall, the borrower at any time can “settle” your claim by paying what you are entitled to.

Similarly, if an absent-minded motorist harms you by crashing into the back of your stopped vehicle as you sit at a complete stop in traffic (fully 50% of the cases I handle), you have a legal right.

That legal right is called a personal injury claim. Since all vehicles registered in British Columbia require a minimum of $200,000.00 of liability insurance through ICBC, most British Columbia crash claims are called ICBC claims.

Just like with a loan, an ICBC claim can be enforced only through pursuing a court judgment. Seeing the writing on the wall, ICBC can at any time “settle” your claim by paying the compensation you are entitled to.

Why do lawyers get involved?

A lawyer does nothing to increase the value of your claim. Remember, your claim is a legal right to be made whole. That legal right is the same with or without a lawyer.

If anything, a lawyer’s involvement will reduce the value of your claim. A lawyer will give you important advice about doing whatever you can to heal as fully and quickly as possible. And about keeping your income losses and expenses to a minimum.

But unless you consult with a lawyer, you will have no idea what your claim is worth. You don’t have the legal expertise to evaluate what’s fair, and you certainly cannot rely on ICBC (your legal opponent) to tell you.

Most injury lawyers provide a free consultation to help you understand the value of your claim.

That doesn’t obligate you to hire the lawyer. Lawyers are expensive! Any dollars paid to the lawyer will be a deduction from the fair compensation you are entitled to.

As a result, actually taking the step of hiring a lawyer makes sense only if ICBC’s willingness to pay fair compensation, without being forced to, is grossly inadequate.

That’s why I have a personal injury practice. ICBC and other insurance companies, when dealing with unrepresented victims, so regularly offer such grossly inadequate compensation that lawyers like me are required to enforce accountability.

How to eliminate personal injury lawyers from the mix? ICBC and other insurance companies could simply be fair, or at least stop being grossly unfair.

Missed last week’s column?

Hergott: Memories of crashes fade

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