The failure to exercise the requisite standard of care toward others which a reasonable or prudent person would exercise in the circumstances, or taking action that a reasonable person would not.
When a Plaintiff claims for damages as a result of another person’s negligence, the Plaintiff must prove that the Defendant had a duty of care to the Plaintiff, that the Defendant’s actions were negligent in that they were not what a reasonably prudent person would have done, and that the Plaintiff’s damages were caused by the Defendant’s negligence.
Negligence can sometimes be apportioned between a Plaintiff and a Defendant, or between a Plaintiff and more than one Defendant.
Nervous shock in the context of ICBC injury claims occurs when a person is witness to a sudden and unexpected traumatic even, and develops psychiatric damage as a result of witnessing the said event. The law does not recognize upset, anxiety, agitation, or other mental states that do not meet the test of a recognizable psychiatric illness.
The most common of all heads of damages claimed in ICBC injury claims, non-pecuniary (non-financial) damages are designed to compensate the Plaintiff for physical and emotional pain and suffering, and loss of enjoyment and amenities of life. Sometimes also known as general damages. As each case is fact specific, amounts for non-pecuniary damages can vary from case to case. Factors considered by the Court include age, nature of the injury, severity of the injury, duration of the injury, whether or not there was a pre-existing injury, and the physical and emotional effects of the injury or injuries on the Plaintiff’s life.
NOTICE of CIVIL CLAIM
A legal document that is filed in the Supreme Court of British Columbia to commence an ICBC injury claim. There are three main parts to a Notice of Civil Claim : Statement of Facts, Relief Sought, and Legal Basis. A Notice of Civil Claim must generally be filed within two years from the date of an accident, and must be served on the Defendant within one year from the date that it is filed in the Supreme Court. An application to Court can be made, before or after the expiration of the one year limitation period to serve, to extend the time to file the Notice of Civil Claim. The vast majority of time, ICBC will accept service of the Notice of Civil Claim on behalf of the Defendant, in order to save the costs of serving the Defendant personally with the document.
When a lawyer objects to the asking of a question by another lawyer at an Examination for Discovery, or at trial. Common objections included that the question is irrelevant, is immaterial, calls for a legal interpretation, is hearsay, has already been asked and answered, or is leading.
An occupier of premises owes a duty to visitors that they will be reasonably safe in using the premises of the occupier. The standard of care is one of reasonableness, and not perfection. The Occupiers Liability Act is the relevant legislation in British Columbia with respect to the liability of an occupier. Often, occupiers will attempt to rely on maintenance logs and records to show how regularly the premises was checked and/or maintained in the proper condition.
Witnesses usually must confine their testimony at trial to statements of fact, and are not permitted to give their opinion. However, a witness may give opinion evidence in a particular field if permitted by the Court.
PAIN and SUFFERING
Also known as non-pecuniary damages or general damages, this head of damage represents physical and mental suffering endured by someone that has been injured. If fault lay with the other party, then a person can make a claim for damages for pain and suffering, also known as non-pecuniary damages, or general damages. Several factors are considered by the Court when making an award for pain and suffering, such as the age of the Plaintiff, the effect of the injuries on the Plaintiff’s life, the severity of the injuries, the duration of the injuries, the nature of the injury, the amount of emotional suffering, the impairment of family, marital, and social relationships, and the loss of impairment of life. Awards made by the Court vary on a case by case basis, given the unique factual aspects of each case.
PAROL EVIDENCE RULE
A rule of evidence that states that a written agreement or contract cannot be later altered by oral agreements that contradict the original agreement.
Particulars are specific details and information about a certain type of damages that a Plaintiff seeks in an ICBC injury claim. For example, if the Plaintiff is claiming a loss of income, ICBC’S lawyer will ask for further and better particulars in order to be given a better idea of what the loss of income portion of the claim entails.
The right of the Plaintiff or Defendant to have a juror dismissed prior to trial, without having to give a reason. It can be distinguished from a “challenge for cause”, where a reason is given.
Intentionally lying to the Court after being sworn to tell the truth. It is a crime that is punishable by law, although this does not happen all too often.
In the context of an ICBC injury claim, a permanent injury constitutes physical or mental damage that will forever restrict the Plaintiff’s life, including the ability to work and enjoy life as the Plaintiff once did prior to the accident.
In an ICBC injury claim, the party that commences litigation, and which sues the Defendant or Defendants for negligence, alleging a breach of a duty of care owed to the Plaintiff.
Documents filed at the courthouse in an ICBC injury claim, such as a Notice of Civil by the Plaintiff, and a Response to a Notice of Civil Claim by the Defendant.
PREPONDERANCE of EVIDENCE
Also known as the balance of probabilities, this is the standard of proof in an ICBC injury claim, as opposed to the standard of proof of beyond a reasonable doubt in criminal cases, which is a much more severe standard of proof. In simple terms, the Plaintiff needs to establish a 51% weighing of the evidence in its’ favour.
Statements and conversations made between people under the circumstances of assured confidentiality. A common form of privilege is communications between a lawyer and client, better known as solicitor client privilege.
Latin for “the public good”, pro bono work is legal work performed by lawyers at no cost in order to assist people will little or no funds.
When a person makes a false statement or misrepresentation to another person, who then relies on the statement or misrepresentation to his or detriment, the original person cannot then rely on the original statement or misrepresentation. The legal inability of the person who made the false statement to deny it makes it an enforceable promise called “promissory estoppel”.
In order for a Plaintiff to succeed in an ICBC injury claim, he or she must prove at trial that the negligence of the Defendant was the proximate cause (and not some other reason) for the damages sustained by the Plaintiff.
Also sometimes referred to as exemplary damages, punitive damages are monetary damages awarded that are designed to punish the Defendant for its’ malicious and egregious acts, and in order to deter others from following the same course of conduct. It can sometimes be a difficult claim to prove, but in the context of ICBC injury claims, sometimes a claim for bad faith can be made against ICBC, which will normally result in the court awarding punitive damages in favour of the Plaintiff.