Hergott: Victims of car crashes could be penalized

Lawyer Paul Hergott talks updates on ICBC and crashes

The rights of those injured in collisions are about to change.

Negligent drivers causing the collisions will be rewarded.

Rewards include increased employment disability benefits and complete (instead of the current partial) coverage for most care expenses.

Innocent victims will also receive increased benefits. But since 100 per cent of income losses and expenses must be paid at the time of settlement, those benefits are just a higher down payment on what ICBC will have to pay anyway.

Innocent victims will actually be penalized, because their right to compensation for “non-pecuniary losses” will be capped.

Non-pecuniary losses are the non-financial ways you are impacted by an injury.

Your injuries might cause you to miss work for a time and cost money to treat. Those are financial losses.

Non-financial losses include the unpleasant experience of discomfort and pain. And the impact those symptoms have on your day to day activities.

They include psychological symptoms as well, such as a lowered mood and irritability that can go hand in hand with physical symptoms.

Thankfully, most injured victims enjoy a complete recovery. They might endure a wretched few weeks or months, but the discomfort and pain resolves and they return to the life they enjoyed before the collision. I call that a temporary injury, because it ends. It is not permanent.

In the great scheme of car crash injuries, the temporary ones might be referred to as “minor”. Though I caution you against suggesting to anyone enduring months of pain, stiffness and headaches that they sustained a minor injury!

For collision injuries occurring on or after April 1, 2019, non-financial loss compensation for those temporary injuries will be capped at $5,500.00 (the “Cap”). The Cap is established by a government regulation called the “Minor Injury Regulation”.

But when you look at how the government has defined a “minor injury” in the legislation, you will see that they are applying the Cap to injuries going far beyond what any reasonable person would label as “minor”.

If you sustain an injury referred to as a “sprain”, i.e. an injury to ligaments, the injury is a “minor injury” unless all the fibres of an injured ligament are torn. If a “strain”, i.e. an injury to muscles, the injury is a “minor injury” unless all the fibres of an injured muscle are torn.

All whiplash associated disorders are “minor injuries” unless they include a spinal fracture or “decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms”.

Pain syndromes, psychological and psychiatric conditions and jaw joint injuries are “minor injuries” as well.

All of those injuries are “minor injuries” unless they result in a “serious impairment” or a “permanent serious disfigurement”.

To qualify as a “serious impairment”, it must indeed be serious, resulting in the “substantial inability” to perform the essential tasks of your employment / occupation / profession, or a training/education program you are enrolled in or accepted for enrollment. And must last longer than 12 months without an expectation of ever substantially improving.

I will give you an example.

You suffer whiplash injuries, a shoulder injury that tears some but not all fibres of ligaments and muscles as well as whiplash related headaches. You are initially unable to work, but with months of therapies and a graduated return to work program your symptoms settle down and you build up your strength to the extent you are able to return.

But you continue to suffer from headaches, neck pain and shoulder restrictions that will never completely resolve. Those ongoing symptoms restrict you from ever returning to your previously active lifestyle. And leads to depression.

That’s a “minor injury” for crashes occurring on or after April 1, 2019.

Interested in looking at the legislation yourself? Look at the “Part 7 – Minor Injuries” , section of the Insurance (Vehicle) Act. And the Minor Injury Regulation .

Missed last week’s column?

Uncertainty of personal injury claims

Like us on Facebook and follow us on Twitter.

Just Posted

Councillor Gambell raises motion to fit busses with seat belts

The motion was passed on Tuesday’s council meeting

FormaShape snuffs small electrical fire

Fire department responds to fire in Lake Country for precautionary measures

Melcor Developments supports YMCA Strong Kids with generous $9,000 donation

Local business raises funds to enrich community through YMCA services

Boil water notice extended into Kelowna’s northern boundary

City of Kelowna extends boil water notice to over 100 residences in northern boundary of Kelowna

Kelowna Memorial Cup committee visits 2019 tournament in Halifax

The committee wants to get a first-hand look at how the tournament is organzied

600 new campsites coming to provincial parks and recreation sites across B.C.

Tourism Minister announced half of the new spots to 13 most popular provincial parks

Raptors beat Bucks 105-99 to move within 1 game of NBA Finals

Leonard scores 35 as Toronto takes 3-2 series lead over Milwaukee

Okanagan housing builds hope for 52 homeless individuals

The 52 unit supported housing apartment officially opens in Vernon

Gardens plant hope for Okanagan residents who were once homeless

Turning Points, in collaberation with Briteland, bring square foot gardening to Blair Apartments

Bear spray culprit released from Penticton RCMP custody

The individual who sprayed the bear spray at Compass House on May 22 has been released

Municipalities protest after B.C. declares marijuana crops ‘farm use’

UBCM president seeks answers in letter to John Horgan government

RCMP set to patrol Okanagan lakes

Vernon-North Okanagan members will be on area waters helping keep boaters safe

Summerland students to raise voices in public speech competition

Public speaking component is included in high school English program

CMHC defends mortgage stress test changes amid calls for loosening rules

Uninsured borrowers must now show they could service their mortgage if rates rose two per cent

Most Read