Archive for April, 2013

Can you say your sorry at an Accident?

When someone is in an accident where another person is injured or killed, they often want to give words of reassurance and caring. By saying your sorry, can you be admitting you caused the accident? The answer is unclear.

Section 73 of the Insurance (Vehicle) Act regulations reads as follows:

73 (1) An insured shall …(d) except at his own cost, assume no liability and settle no claim.
From this section, it appears that if the apology can be seen as an admission of liability, you could void your policy with ICBC.

Our BC government did not want to stop someone from apologizing because they might then be liable, and have to pay any losses themselves, so they brought in the Apology Act. An apology is defined as: ” an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate

If you apologize, this Act specifically states that the apology is not an admission of liability, and overrides an insurance exclusion such as the section set out above.

But what if a court believes someone said: “Oh my God, I’m so sorry, I didn’t see the red light!” as happened in the case of Koshman v. Brodis?

In that case the judge found that there was conflicting evidence and that the statement was one of the deciding factors in finding the person who made the statement responsible for the collision. In that particular case the Apology Act was not brought up so probably was not considered by the judge.

If you want to apologize, be careful. It’s likely best to speak to a lawyer first.

Sources of Money While Unable to Work

First Steps

It’s frustrating when you can’t work. There’s the stress of no income coming in, things not getting done at work and your job being at risk. What to do?

First you need to speak to your practitioner – doctor, chiropractor, physiotherapist, massage therapist or other treaters – as to whether or not you should be working.

It may be obvious to you that you can’t work, but most people who have suffered an injury may feel the pain, but they often don’t show it- You may look fine. For this reason it’s best to have some validation to provide to your employer and your insurer.

You should get a note from your practitioner. The note should include a few things.  The note should expressly state that you cannot work.  The practitioner should be specific as to what you cannot do. i.e., “I understand Mr. Doe is a lawyer and he is injured such that he cannot work at this time”.

The note should have a date your practitioner will review your condition to see if you can work again and the likely return date. Most employers and ICBC want a date you can return to work. The problem is no one knows for certain when you will be better. As such it is best not to get a commitment from a practitioner of the date you can return to work. If you are still not able to fully function, then you may feel pressed to return even though you are not ready to do so. This can harm you in many ways.

There could be an estimation of how long you will be off work.  · I.e. “with injuries like the type Mr. Doe sustained, it is usual for someone to recover in eight weeks. As such, I will be reviewing Mr. Doe’s function on [date seven weeks away] to assess his recovery and ensure he is capable of returning to work.

The note should state the likely cause of you not being able to work.  · This is more for the insurer than your employer. The cause of your injury and inability to function properly has to be confirmed for the insurer for both the assessment of your claim, and the payment of some benefits.  If the reason you cannot work is not related to the collision, then you are may not be entitled to benefits.

If the collision is the only cause of the injury, it is useful for the practitioner to say “it appears the only cause of the injury preventing Mr. Doe from working is the MVA that occurred on [date].

Employment Insurance Benefits

I always recommend people apply for sick benefits under Employment Insurance (EI). If you do not qualify, it is best to get written confirmation, even if it means applying and getting turned down. The reason for this is it gives proof to your insurer that you do not qualify for benefits.

You are not applying for regular EI benefits, but sick benefits.  DO NOT APPLY FOR REGULAR EI BENEFITS UNLESS YOU ARE CAPABLE OF WORKING. If you apply for regular benefits, you need to claim that you are capable of working. If you’re not you would be lying. Not only is this a fraud on ICBC, but also it could impact your credibility when making your claim.

From ICBC

Under the insurance policy of the vehicle you were in when driving, or the vehicle that caused the injury, you are likely entitled to payment of benefit.

These benefits are set out in under Part 7 of the Insurance (Vehicle) Regulation

The two main requirements for receiving these benefits are:

  • You must have been employed for 26 weeks of 52 weeks prior to the collision, and
  • You are totally disable because of the collision

Before you can collect such benefits, you must use up all other benefits available such as sick benefits from EI, WorkSafe or WCB benefits, benefits from any disability insurance policies, and it may include banked sick time from your employer.

Disability Plans – Through Work or Private

If you have a disability plan through work you should review it to see if you can make a claim. There are usually two different types of benefits: Short Term Benefits (sometimes called Weekly Indemnity Benefits) and Long Term Benefits (LTDs)

Short term benefits often start right away. Sometimes you are required to use up sick time and EI benefits.

Just because you can’t work, doesn’t mean you get money from these benefits. It is a contract of insurance that sets out when you get paid. Sometimes the wording is really clear, other times it can be very confusing.

Long Term Benefits usually start in three to six months and last for Two Years in the occupation you were working in just prior to the injury, then after that, for any occupation you are reasonably suited due to education, training and experience.

Insurance claims are a complex area and further consultation may be necessary if your coverage is denied.

If you are denied coverage and think you might be entitled to coverage, you should demand a copy of the policy or benefit booklet.

Disability Plans – Government

Benefits are often available through the Canada Pension Plan and provincial social assistance programs.

WorkSafe

If your injury is work related, you may need to make a WCB claim. This can be a complex area and you may have a choice of going through WCB or claiming through a motor vehicle insurer such as ICBC. Prior to making a decision as to which way to go you should seek the advice of a lawyer.

Injury Loans

This should be a last resort. If you are looking for an injury loan, you should check the terms very carefully. Very often the interest is over 55% per year.

If you borrow one thousand dollars and your case settles two years later for $4,000, you will have to pay the lender the $1,000 lent, plus at least an additional $2,400 as there is interest on the interest. As such if you get $4,000 in settlement, after paying the loan, you could end up with less than $1,600.

Without Prejudice – What is the effect of this term?

In negotiations letters and other documents are often exchanged marked “without prejudice.  What does the term “without prejudice” mean, and what is the term’s effect in legal matters in British Columbia. This blog considers this.

The law is evolving and changing, and the exact application of this term or any other legal concept should be reviewed by a lawyer before it is applied to a particular circumstance.

A review of the definition of the term can be found this legal dictionary. In British Columbia, the term was reviewed in the case of Coombs v. LeBlond Estate.

In BC, as in most jurisdictions, the purpose of without prejudice communications, whether they be by discussions, in writing or in some other form, is to allow open discussion of settlement negotiations. If the matter proceeds to a hearing or adjudication, one or both parties don’t want the someone to say “I told the other side this is what they should agree to and they turned it down”.

Very often, discussions or letters marked “without prejudice” do not contain a settlement proposal.   Even if such a communication is marked “without prejudice”, it still may be admissible in court or another forum against the party who wrote it, or had their lawyer or representative write it.

Sometimes discussions or letters not marked “without prejudice” may be seen as seen as privileged and not usable if it contains terms of settlement.

After reviewing the relevant cases, the judge In the Coombs case, at paragraph 23, finds that in order for a communication to be without prejudice, such that it cannot be used in court or against the parties, the communication must have the following two conditions:

1 – a dispute or negotiation between two or more parties; and,
2 – terms of settlement offered.

With respect to the first term, some dispute must exist. There does not need to be court proceedings, but there should be grounds to commence a court proceeding.

With respect to the second term, there must be some terms of settlement offered. The other content of the communication can be the basis of the terms, or an explanation as to who the facts are seen or perceived.

If terms of settlement are missing from the communication, then it might be possible to use the communication against or for one of the parties.