A valid claim at law, an award of accelerated depreciation compensates the owner of a vehicle whose vehicle has been damaged in an accident, through no fault of the owner, for a lower resale value of the car. Even if the car has been fixed, it will have not attract as high an offer from a prospective purchaser due to the fact it has been in an accident. An expert report will be required to prove the loss. ICBC is loathe to pay such a claim prior to trial, due to their fear of the proverbial “floodgates” of claims that will result should it be known that they are paying out on accelerated depreciation claims.
ACQUIRED BRAIN INJURY
An acquired brain injury (ABI) is damage to the brain that occurs as a result of something after birth, and which has nothing to do with a congenital or degenerative disorder. The damage can be caused, for example, by a traumatic injury resulting from a motor vehicle accident.
An employee of an insurance company, such as ICBC, whose primary duty is to negotiate an early settlement of a claim for damages brought by an injured motorist, passenger, pedestrian, or cyclist.
The type of evidence that the Court will accept as being useful in determining the outcome of an ICBC claim. The type of evidence that cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsaya judge or jury
ADMISSION AGAINST INTEREST
A noted exception to the hearsay rule, this stands for an admission of truth of a fact by a party, that is detrimental to that party’s interests. The opposing party can use this admission against them in court, even if it is hearsay evidence.
When a party, such as the Plaintiff, does not produce any expert evidence, or call a certain witness at trial, ICBC’S lawyer will argue that an adverse inference should be drawn, meaning that the lawyer is asking the Court to presume that the witness in question was not called because he or she would not be able to testify to anything beneficial to the Plaintiff’s case.
A person who signs an Affidavit.
A written, sworn statement of facts voluntarily made by a person (affiant ) under an oath administered by a person authorized to do so, such as a lawyer or another Commissioner for Oaths. Affidavits are normally made in support of an interim or interlocutory court application.
AGONY of COLLISION, or AGONY of the MOMENT
A defence sometimes plead successfully in ICBC injury claims. A person, placed in a sudden emergency situation through no fault of his or her own, will be not be held to be negligent if they exhibit a certain standard of care which another reasonably prudent person would have also shown under similar circumstances. The person can be absolved of liability even if, given the sudden emergency facing them that necessitated a quick decision to be made to avoid an accident, they did not make the best choice available to them. In the context of ICBC injury claims, the defence is often invoked with respect to accidents on icy roads.
An ICBC settlement that refers to an amount that incorporates all heads of damages, all taxable costs, and all disbursements. To be distinguished from an ICBC settlement stating an X amount of dollars for damages, plus taxable costs and disbursements. In an all-inclusive ICBC settlement, disbursements go to the lawyer, and costs go the client.
A statement of claimed fact contained in a Notice of Civil Claim, which is a written pleading that formally commences an ICBC claim for damages. Until such statements are proven, they remain allegations.
A changed written pleading in an ICBC claim, whether made by the Plaintiff or the Defendant. Reasons for the amendments include, but are not limited to, correcting facts, adding new causes of action, adding or substituting parties, adding new defenses, and adding allegations of contributory negligence.
An appeal is when you file a Notice of Appeal and ask a higher court to reverse the decision of the trial court. In British Columbia, this can mean asking the Supreme Court to reverse a decision made by the Provincial Court, or asking the Court of Appeal to reverse the decision of the Supreme Court.
The party that files a Notice of Appeal, asking the higher Court to reverse the decision of the trial court.
APPORTIONMENT of COSTS
In the event that a judge in an ICBC injury claim rules that both the Plaintiff and Defendant are to be blamed for the accident, then the judge has the discretion to rule that each party will be entitled to their portion of costs in the same percentage as their liability for the accident.
APPORTIONMENT of LIABILITY
A ruling from a judge in an ICBC injury claim that the Plaintiff and Defendant are both liable or responsible for the accident that occurred. For example, a Plaintiff may be 25% at fault for the accident, and the Defendant would be 75% responsible for the accident.
ASSUMPTION of RISK
Also known as Volenti Non Fit Injuria, this is an affirmative defense occasionally successfully argued by ICBC’S lawyers in motor vehicle accident cases, where the Defendant claims that the situation that the Plaintiff placed himself or herself in was so inherently and obviously hazardous that the Plaintiff should have known he or she could be injured.
Any form of care that assists an injured person in accomplishing certain day-to-day activities, such as bathing, feeding, cooking, and cleaning. In more serious ICBC injury claims, the cost for attendant care can sometimes form a large portion of a cost of future care award.
This can refer to intentional dishonesty on behalf of an insurance company by not fulfilling legal or contractual obligations, by misleading an insured, by entering into an agreement without the intention or mean of fulfilling it, by denying your claim by claiming false or fake policy exemptions, by failing to promptly process a claim, or by exercising total inaction on a claim.
There is a general “implied covenant of good faith and fair dealing” expected of an insurance company, which gets breached by acts of bad faith, for which a lawsuit may be brought.
BALANCE of PROBABILITIES
The standard of proof in ICBC injury claims, otherwise known as a preponderance of the evidence, or a 51 percent likelihood of occurrence.
Often referred to as no fault benefits, Part 7 benefits, or accident benefits, these are available to ICBC claimants involved in a motor vehicle accident, cyclist accident, or pedestrian accident, who meets the definition of an insured. Such benefits include physiotherapy treatment, chiropractic treatment, massage therapy, housekeeping assistance, income loss replacement, etc …Such benefits are also available even if you are at fault for the accident.
Click here for a detailed description of Part 7 Benefits.
BEST EVIDENCE RULE
A legal doctrine that states that an original piece of evidence is superior to that of a copy. If the original is available, a copy will not be used in court.
Pleadings sometimes used by ICBC’S lawyers in the form of a Reply to a Notice of Civil Claim, where standard, pre-printed terminology is used, including blanket denials of liability when liability is clear against the Defendant, and blanket allegations of contributory negligence against the Plaintiff, such as failure to wear a seat belt, when such allegations are clearly erroneous.
BREACH of INSURANCE POLICY
If ICBC believes you may have breached (broken) a provision of your policy, they can refuse to pay you any accident benefits. ICBC can also refuse to pay you what your car is worth if it is a write off, and can refuse to cover you if you caused an accident, and an ICBC claim for injuries is brought against you. Common examples of breaching a policy provision include driving while impaired, eluding the police, driving without a supervisor if one is required, and falsely declaring who the principal operator of a vehicle will be.
If a Plaintiff sues two parties in an ICBC claim, however is only successful against one of the Defendants, then the Court has the authority to grant what is called a Bullock Order, which orders the unsuccessful Defendant to pay the costs of the successful Defendant.
BUT FOR TEST
The main, but not conclusive, legal test for causation in the context of ICBC injury claims. The Court will ask the question, “but for (without) the actions of the Defendant, would the accident have occurred” ? If, after a consideration of all the evidence, the answer is no, then causation has been proven.