Hergott: Personal injury claims don’t include ‘bonus’ jackpot

Do whatever you can, within reason, to make your claim as small as possible.

Many of my columns contain advice that is not expected from the popular culture’s generated sleazy image of a personal injury lawyer.

Being honest and forthright, for example, is the direct opposite of what many would expect a personal injury lawyer to recommend.

I’m going to hit you with another one: Do whatever you can, within reason, to make your claim as small as possible.

I can hear the sarcastic commentary now: “Oh, OK. I’m going to go to that lawyer. I’m going to hire the lawyer who is going to help me figure out not how to maximize my claim, but rather to minimize it!”

A personal injury claim is, essentially, a legal right to compensation. What are you being compensated for? Your losses.

The bigger your losses, the bigger your claim.

Conversely, the smaller your losses, the smaller your claim. There is no “bonus.”

There is only recovery of loss. When you factor in the one-third fees you are going to pay your lawyer, you in fact end up significantly “in the red.”

Your best hope is to recover compensation for two-thirds of your losses.

The bigger your losses, the further you end up in the red, because more and more is taken by your lawyer in fees.

For a very small claim, with losses of only $9,000, you end up “in the red” about $3,000 ($9,000 minus lawyer fees).

For a larger claim, with losses of $90,000, you end up “in the red” about $30,000.

Who benefits from maximizing your losses?  Your lawyer. Who loses?  You.

That’s the dollars and cents argument for keeping your losses as small as possible.

It just so happens that there is also a legal duty to do so. It’s called a “duty to mitigate”

A very recent decision of the Supreme Court of British Columbia quotes the following authoritative statement of the law:

“Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue…”

Turning that into English, you have an actual legal obligation to take reasonable steps to end up as little “in the red” as possible.

If you fail to do so, ICBC won’t have to reimburse you for the losses that you could have made smaller had you acted reasonably.

For example, if your injury disables you from returning to your very heavy work as a drywall installer, but you would be able to handle less physically heavy work such as working at a desk or working as a salesperson, you have a legal duty to try to get those other jobs.

If you sit back and do nothing, and ICBC is able to prove that you would have been successful finding alternate work and earning at least a portion of the income you would have earned as a drywaller, the court will not reimburse you for that portion.

You will end up with zero compensation for that portion of your losses.

People who are laid off and qualify for Employment Insurance are required to look for work.

The same thing goes for people claiming compensation for injury losses.

The difference is that the Employment Insurance system is not going to hire a lawyer to cross-examine you on how hard you tried to find another job.

This “duty to mitigate” is nothing to worry about. It’s not some “dark magic” that ICBC will be able to use to kill your claim.

It’s all about acting reasonably. If you are the least bit unsure, get advice early on about what steps you could be taking to mitigate your losses and eliminate the possibility that ICBC can successfully “blame the victim” on this point.

Kelowna Capital News

Just Posted

Lightning in Kelowna, B.C. (Contributed)
Severe thunderstorm watch in effect for Okanagan

Conditions are favourable for the development of severe thunderstorms overnight

(Dave Ogilvie/Contributed)
UPDATE: West Kelowna fire crews rescue injured mountain biker

The injury took place at the top of Smith Creek Road

Kelowna flags were flown at half-mast after the discovery of a residential school burial site in Kamloops. (File photo)
Central Okanagan school board chair reflects on recent tragedies

Moyra Baxter offers condolenses to residential school victims, slain Muslim family

The RCMP presence in Central Okanagan public schools is being reviewed by the board of education. (File photo)
RCMP presence welcomed in Central Okanagan public schools

Staff survey feedback overwhelmingly positive from students, staff and parents

Bentley resting on a bench at Kal Park in Vernon not knowing there is a baby rattlesnake curled up below. Bentley jumped down and was bit by the snake. (Facebook)
Dog bit by baby rattler at popular Vernon park

The rattlesnake was hidden underneath a park bench when it struck out

Canadian Prime Minister Justin Trudeau participates in a plenary session at the G7 Summit in Carbis Bay, England on Friday June 11, 2021. THE CANADIAN PRESS/Adrian Wyld
Canada donating 13M surplus COVID-19 vaccine doses to poor countries

Trudeau says the government will pay for 87 million shots to be distributed to poor countries

Jane Linden
KCR: Volunteering keeps you active

Kelowna Community Resources shares stories of its volunteers in a weekly column

Premier John Horgan speaks as provincial health officer Dr. Bonnie Henry, right, and health minister Adrian Dix look on during a press conference to update on the province’s fall pandemic preparedness plan during a press conference from the press theatre at Legislature in Victoria, Wednesday, Sept. 9, 2020. THE CANADIAN PRESS/Chad Hipolito
B.C. officials to provide details on Step 2 of COVID reopening plan Monday

Step 2 could allow for larger gatherings and a resumption of recreational travel

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Longtime SOWINS volunteer Diane Fru (far left) walks with members of her family as they Walk To End Abuse Sunday, June 13, 2021. South Okanagan Women In Needs Society (SOWINS) raised a record amount this year. (Monique Tamminga Western News)
Walk to End Abuse in South Okanagan breaks fundraising record

More than $53,000 raised so far while the pandemic has increased need for SOWINS’ services

Indigenous Services Minister Marc Miller is seen during a news conference, Wednesday May 19, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Indigenous child-welfare battle heads to court despite calls for Ottawa to drop cases

Feds are poised to argue against two Canadian Human Rights Tribunal rulings

Two-year-old Ivy McLeod laughs while playing with Lucky the puppy outside their Chilliwack home on Thursday, June 10, 2021. (Jenna Hauck/ Chilliwack Progress)
VIDEO: B.C. family finds ‘perfect’ puppy with limb difference for 2-year-old Ivy

Ivy has special bond with Lucky the puppy who was also born with limb difference

A million-dollar ticket was sold to an individual in Vernon from the Lotto Max draw Friday, June 11, 2021. (Photo courtesy of BCLC)
Lottery ticket worth $1 million sold in Vernon

One lucky individual holds one of 20 tickets worth $1 million from Friday’s Lotto Max draw

Most Read