The cause and effect relationship between a negligent act, and damages suffered by a Plaintiff in a personal injury action. The general legal test for causation in the context of ICBC injury claims is the “but for” test.
The general, but not always definitive, test for legal causation in the context of ICBC injury claims is the “but for” test. A claimant must demonstrate, on a balance of probabilities, that “but for” (without) the tortfeasor’s negligence, then the accident would not have occurred. In other words, if the Plaintiff can demonstrate that the damages suffered by the Plaintiff would not have occurred without the negligence of the Defendant, then the Plaintiff has proven causation.
CAUSE of ACTION
A factual situation, the existence of which entitles a Plaintiff to commence legal proceedings against a Defendant. For example, in the context of an ICBC injury claim, there must have been negligence on the part of the Defendant, in that the Defendant has breached a duty of care owed to the Plaintiff.
CAUSE in FACT
The factual link or connection between a person’s actions and another person’s damage.
Pain lasting in duration from anywhere from three to six months or more. Chronic pain is to be distinguished from acute pain, which is much shorter in duration. Chronic pain can also be more resistant to treatment than acute pain, which is for the most part more treatable.
Chronic pain can also be classified as pain that lasts beyond the normal expected time period of healing.
An ICBC Certificate of Earnings Form that they send to an ICBC claimant’s employer, in order to ascertain wage loss information.
An ICBC form wherein they request information from your family doctor, such as your subjective complaints and your doctor’s objective findings, both at the time of the initial visit, and at the date of the report. ICBC is entitled to this information, even if the claimant is represented by counsel.
An ICBC form that must be filled out in order to apply for accident benefits, including wage loss replacement. The CL-24 form is ICBC”S internal version of the CL-22 form.
An internal ICBC form that must be filled out if you are proceeding with an ICBC claim for damages resulting from an accident in British Columbia where the negligent motorist was uninsured.
An ICBC form that you are required to fill out if you have been injured in a hit and run motor vehicle accident in British Columbia, where the owner and driver of the offending vehicle is unascertainable.
An action brought by one person as a representative of many other people with similar claims, such as in the example of harmful and defective medications.
Notes and observations made by a doctor upon examining a patient. Clinical records can play an important role in ICBC injury claims, as they can be used as evidence to support a Plaintiff’s claim of injuries, and can also be used by ICBC’S lawyers in an attempt to discredit the Plaintiff. The Courts have recognized that clinical records are not infallible.
As an ICBC injury claimant, you should make every effort possible to report all of your symptoms to your doctor, no matter how trivial they may seem at the time, and you should ensure that everything you tell your doctor is properly recorded and documented. Doctors are very busy, and may not record everything you tell them. If your injuries are not properly documented, it could negatively impact the value of your ICBC injury claim at the time of settlement.
CLOSED HEAD INJURY
A closed head injury involves a trauma to the head which does not penetrate or fracture the skull, but which does cause damage to the brain.
Judge made law, as opposed to law made by statutes and regulations. Judges strive to use previously decided cases as persuasive precedents, however, given the unique aspects of each individual case, it can be difficult to do so.
A monetary remedy designed to restore the plaintiff to the position he would have been in “but for” (without) the tortfeasor’s conduct.
An obligation to keep information secret. In the context of an ICBC injury claim, there is confidentiality between a client and lawyer, however certain exceptions exist, such as when the lawyer needs to communicate information about a client to ICBC’S lawyers or adjusters in an effort to bring the matter to resolution.
The type of contract between a client and lawyer in an ICBC injury claim. The fee is a percentage of money recovered on behalf of the client, and is payable only upon the successful conclusion of the claim. The agreement must be in writing, and must be signed by both the client and lawyer, or it is of no legal force or effect.
The failure of a Plaintiff to take care for his or her own safety, which contributes to the loss and injuries. For example, not wearing a seat belt, or getting into a vehicle with a driver you know to be impaired, can be seen by the Courts as contributory negligence, which can result in a partial deduction of your overall award.
Evidence that confirms or strengthens evidence already presented to the court. For example, in the context of an ICBC injury claim, testimony given by the Plaintiff with respect to injuries can be corroborated or substantiated by medical reports and/or expert testimony.
A pecuniary (financial) allowance made to a successful litigant, to help offset the cost of legal fees. Such allowance, or legal costs, must be paid by the Defendant or Defendants. The amount of costs payable are based on a Schedule in the Rules of Court, and can vary based on how complex the case is, and what specific legal steps were taken on the way. Costs can be awarded for filing a Notice of Civil Claim, for correspondence and negotiations with opposing counsel, for preparation at an Examination for Discovery, for attendance at an Examination for Discovery, for interim or interlocutory court applications, for trial preparation, and for actual time at trial.
COSTS in ANY EVENT, or in ANY EVENT of the CAUSE
Legal costs awarded at an interim or interlocutory application will go the successful party at that application, not necessarily the successful party at the conclusion of trial.
COSTS in the CAUSE
Legal costs awarded at an interim or interlocutory application will go to the successful party at trial.
COSTS PAYABLE FORTHWITH
Legal costs that must be paid immediately by the losing party at interim or interlocutory application, before it is known who will ultimately be the successful party at trial.
An offer made in response to a previous offer during negotiations. The act of making a counter offer automatically rejects the previous offer.
COURT OF APPEAL
The highest level of court in any given province. In British Columbia, appeals from the Supreme Court are heard by the Court of Appeal. The Court of Appeal can allow the appeal, dismiss the appeal, substitute an award for damages, or order a new trial in the Supreme Court.
CRUMBLING SKULL DOCTRINE
In the context of ICBC injury claims, the legal doctrine of “crumbling skull” arises where the claimant has an already deteriorating condition which is made worse and accelerated by the negligence of the Defendant. If there is a measurable risk that the Plaintiff would have eventually suffered from the condition in question anyways, then there can be a reduction in the amount awarded to reflect this.
The shortened form for computed or computerized axial tomography, a CT scan produces a detailed image of a body structure using computerized axial tomography.
An amount of money that a Plaintiff can be awarded by a Court in an ICBC injury claim. There are many types of damages, including damages for pain and suffering, out of pocket expenses or special damages, loss of housekeeping capacity, loss of future housekeeping capacity, loss of income and past diminished earning capacity, future diminished earning capacity, cost of future care, accelerated depreciation, in-trust claims, and tax gross up and management fees.
Latin for “of minimum importance” or “trifling.”
Latin for “anew,” which means starting over, as in a trial de novo. For example, the British Columbia Court of Appeal, upon hearing an appeal from the Supreme Court of British Columbia, may remit the matter to the Supreme Court for a whole new trial.
A payment in an insurance policy that must be made by the insured before the insurance company will pay anything. For example, if you have a $500 deductible under your insurance policy, and there are $2200 in damages to your car, then ICBC would only pay $1700 towards the repairs, and you would pay $500.
The party that is sued by the Plaintiff in an ICBC injury claim. In most cases, the personal Defendant or Defendants are named, however the case is defended by ICBC itself. ICBC may be named as a Defendant in hit and run claims, or where ICBC is sued for bad faith or denying coverage for benefits.
DIMINISHED EARNING CAPACITY
Also known as future income loss, this is a common type of damage sought by claimants in the context of an ICBC injury claim. It will usually not be decided based on a mathematical calculation, but rather will be viewed as damage to a capital asset, namely damage to the capacity of an individual to earn income in the future.
DIRECTION to PAY
A binding document that some treatment providers sign, along with the patient, whereby the treatment provider does not charge the patient for services, but where the treatment provider has a first charge on the amounts owed to them out of the patient’s settlement funds in an ICBC injury claim.
The funds paid out by the lawyer for expenses incurred in an ICBC injury claim, such as for clinical records, medical reports, transcripts, court filing fees, etc … The lawyer will claim these amounts back from ICBC at the conclusion of the claim, and take them back, but such amounts will be separate from the injury component portion of the claim.
If one party is relying on a specific case to support their position at trial, the other lawyer will attempt to distinguish the case, namely, argue that the fact pattern is different from the present case, and that the law in the previous case is not applicable to the set of facts in the present case.
In the context of an ICBC injury claim, document disclosure between parties is generally limited to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“. The Court will also consider the notion of proportionality in deciding what specific documentation needs to be exchanged between parties.
DOMINANT / SERVIENT DRIVER TEST
A test often used by the Courts in the context of ICBC injury claims to help determine who is liable for a motor vehicle accident. The dominant driver, the one originally with the right of way, may not always be absolved of liability if struck by a servient driver, the one who must yield the right of way in the first place, if it can be shown that the dominant driver, upon becoming the servient driver, did not exercise reasonable care under the circumstances. For example, if a servient driver at a stop sign lawfully complies with their legal duties, and then proceeds in a lawful manner before being struck by another motorist who was originally the dominant driver, then the servient driver can be absolved of liability.
DUTY of CARE
The common law doctrine that a person must act toward others and the public with the caution and prudence that a reasonable person in the circumstances would also use. If someone fails to meet this standard of care, then they are considered to have been negligent, which gives rise to a claim for damages by a Plaintiff.
A court order which orders a party to a lawsuit to refrain from acting in a certain way, or to refrain from starting a particular course or conduct.
The doctrine of estoppel precludes a person from asserting a right against another party, or from denying a fact to that party, due to the original person’s actions, conduct, statements, or admissions. So, if person A, by his actions or words, gives person B reason to believe that something will happen, and person B takes action based on these, then person A cannot later to his or her benefit deny his original actions or words to the detriment of person B. Person A is estopped (prevented) from relying on his earlier actions or words.
ESTOPPEL by LACHES
A legal doctrine wherein if someone takes too long to assert a legal right, then they lose their entitlement to compensation arising from that legal right.
Abbreviation for the Latin phrase et alii, meaning “and others.” You will quite often see “et al” to shorten case citations when there a large number of parties involved.
Every type of proof, permitted by a judge, that is presented at the trial of an ICBC injury claim, which is intended to convince the judge and/or jury of alleged facts that are material to the case in question. Evidence can include testimony of lay and expert witnesses, medical reports, portions of a transcript from an Examination for Discovery, photographs, exhibits, etc … Common objections to the admissibility of evidence include that the evidence is irrelevant, immaterial, or that it violates the rules against hearsay evidence.
EXAMINATION FOR DISCOVERY
An Examination for Discovery in the context of an ICBC injury claim normally occurs when ICBC’S lawyer wants to find out more information about the Plaintiff’s claim, to see how credible the Plaintiff is, and to see how well the Plaintiff will present in court, should the ICBC injury claim reach trial.
Questions will focus on the accident itself, the Plaintiff’s injuries, their work, and their rehabilitation efforts. The questioning is permitted to be quite broad in nature, with the Plaintiff’s counsel objecting if necessary to, for example, questions that are asked that are “legal” in nature, or irrelevant and immaterial.
Expert evidence in written form are the reports of medical specialists, functional capacity evaluators, economists, etc …