FAIR MARKET VALUE
The amount for which property would sell on the open market if put up for sale. In the event you have an ICBC injury claim, and your vehicle is a write off, then ICBC will make you an offer of what they believe is fair market value for your car. It is important that you do own your own homework, and request an AutoSoucrce Valuation Report from them, to determine if what they are offering you is indeed fair market value.
FAST TRACK LITIGATION
Some ICBC injury claims proceed through fast track litigation, a faster way to have a matter proceed through the litigation process. The process applies to ICBC injury claims that can be completed in 3 days or less, or for those ICBC injury claims where the amount of damages sought is less than $100,000.00. Subject to a Court’s discretion, there is usually a set sum of costs awarded to the successful party in a fast track matter.
FAULT
A negligent or intentional failure to act reasonably. In the context of ICBC injury claims, fault is also known as liability or blame for an accident. Fault can sometimes be apportioned between the parties.
FIBROMYALGIA
Fibromyalgia is a well known condition, where someone suffers from long term, body-wide pain and tenderness in the joints, muscles, and tendons. It is primarily a subjective condition, which can be very difficult to objectively verify.
The condition has also been connected to chronic pain, and chronic fatigue syndrome.
FINDER of FACT
In the context of an ICBC injury claim, the jury or judge who decides if facts have been proven.
FORESEEABILITY
A concept used to limit the liability of a person to those acts which carry a risk of foreseeable harm. Under negligence law, there is a duty to act reasonably to avoid any foreseeable risks that may cause injury to others.
FREE CONSULTATION
A telephone conversation or in-person meeting whereby a lawyer discusses an ICBC claimant’s matter with them, advising them of their prospect of success, and informing them of their legal rights and obligations. There is no charge to the client for such a consultation. If you have been injured in a motor vehicle accident in British Columbia, you are wise to take advantage of this opportunity.
FUNCTIONAL CAPACITY EVALUATION
Also known as a work capacity evaluation, a functional capacity evaluation is carried out by an occupational therapist, who attempts to provide testing that measures an ICBC claimant’s physical and functional capabilities and limitations with respect to certain occupations. Such evaluations can help shed light on whether or not the Plaintiff is capable of returning to their normal occupation. Functional capacity evaluations are often used at trial as expert reports on behalf of the Plaintiff.
FUTURE CARE
Substantial future care awards are awarded in the more serious ICBC injury claims to compensate a Plaintiff that is still suffering chronic pain at the time of trial, and who will continue to suffer indefinitely into the future. Depending on the circumstances of the case, cost of future care can include medications, different forms of treatment, costs for health care professionals, costs for future surgeries, costs for specific equipment needed, etc …
GENERAL DAMAGES
Also known as non-pecuniary (non-financial) damages, general damages are awarded to a successful Plaintiff in an ICBC injury claim for pain and suffering, and loss of enjoyment and amenities of life.
GROSS NEGLIGENCE
A very serious form of negligence, more so than ordinary negligence. It reflects a callous disregard for the safety or lives of others. A finding of gross negligence can lead to an award of exemplary or punitive damages against a Defendant.
GUARDIAN AD LITEM
Also known as a Litigation Guardian, a Guardian Ad Litem (“for the purposes of the lawsuit”) will assist an infant or legally disabled person in a lawsuit, and will direct the litigation in the best interests of the infant or legally disabled person. A lawyer also usually represents the infant or legally disabled person as well. The guardian is usually a parent. The Public Guardian and Trustee must approve any settlement.
HEARSAY
Evidence given by a person who does not have direct knowledge of the evidence, but who is basing the evidence of what others have told him or her. When this occurs, the opposing lawyer will almost invariably object on the basis that the statement is hearsay. For the most part, the evidence is inadmissible, as the person is not in court to be cross-examined, and the Court cannot judge the credibility of that person.
HEARSAY EXCEPTION
There are several exceptions to the hearsay rule, which would render the original hearsay evidence admissible. Some of these include an admission against interest, business records made in the regular course of business, excited or startled utterances, contemporaneous statements, a dying declaration, and prior testimony if a witness is not available.
HIT and RUN
A hit and run accident occurs where the offending motorist flees or leaves the scene without providing his contact information and licence plate number to the victim of a hit and run accident. In the context of an ICBC injury claim, it is very important for the hit and run victim to report the matter right away to the police and ICBC, and thereafter to make “reasonable efforts” to ascertain the identity of the other driver. The onus is on the victim in this regard. What can hurt the Plaintiff’s prospect of success is if they have a conversation with the offending motorist after the accident, for perhaps a few minutes, and fail to get that person’s contact information or licence plate number. Simply reporting the matter to ICBC and the police, and doing nothing else, can also result in your claim being dismissed.
HOUSEKEEPING ASSISTANCE
One of the benefits available to you if you have been injured in a motor vehicle accident, and commence an ICBC injury claim. ICBC is normally quite loathe to pay this, even though you are fully entitled to this benefit under your insurance policy. You are required to produce a doctor note recommending the housekeeping assistance, and sometimes ICBC will insist that an occupational therapist visit your home to conduct an assessment, which can be quite invasive.
HOUSEKEEPING CAPACITY
An award that can be made by a Court, irrespective of any housekeeping assistance previously provided to an injured claimant. The Court will usually engage in a mathematical calculation, setting an hourly rate, multiplied by a reasonable amount of hours that will be missed. ICBC is very loathe to pay this award at the adjuster stage, despite it being a perfectly valid claim. Sometimes ICBC will roll this number into the award for non-pecuniary damages.
IMPLIED UNDERTAKING of CONFIDENTIALITY
The rule of implied undertaking of confidentiality is derived from the common law. The rule forbids a party who receives disclosure in a particular case from using that information against the same party in another proceeding. Consent of the parties, or a court order, can waive the rule of implied undertaking of confidentiality. In the context of ICBC injury claims, ICBC’S lawyers sometimes try to get around the rule of implied undertaking of confidentiality in the context of chronic pain cases that may last for several years, and which may overlap from a prior case to the current one.
IN-TRUST CLAIMS
In the context of an ICBC injury claim, an in-trust claim is a claim made by the Plaintiff on behalf of a friend or family member who has assisted the Plaintiff throughout the recovery process, and whose efforts have gone beyond what would reasonably be expected of them. An award will be made if it can be shown that the friend or family member suffered a direct economic loss due to the amount of time spent assisting the Plaintiff.
INCOME LOSS
A common head of damage in ICBC injury claims, a claim for income loss can be either be based on a strict mathematical calculation or, where this is not possible, can be based on a capital asset approach, where the capacity of the Plaintiff to earn income has been impaired. A Plaintiff in an ICBC injury claim is only entitled to their net wage loss.
INDEPENDENT MEDICAL EXAMINATIONS (IMES)
In the context of an ICBC injury claim, independent medical examinations involve attending a doctor or specialist retained by ICBC for the purpose of either addressing the issue of ongoing medical benefits, or for the purpose of preparing an expert report to be used at trial.
INDEPENDENT WITNESS
A witness who is not a party to a legal proceeding, and who cannot be unfairly influenced by the parties involved in the litigation. In cases where there are conflicting versions of events between the parties, the Court will usually place a great deal of emphasis on the evidence of an independent witness.
INDIVISIBLE INJURIES
Indivisible injuries are injuries that cannot be separated, such as aggravation or exacerbation of an earlier injury, are an injury to the same area of the body, or are global symptoms that are impossible to separate. In the event of two or more separate motor vehicle accidents, the law in British Columbia allows for joint and several liability in this scenario, with either one of the Defendants, as long as they contribute to the injuries, being wholly liable for the loss to the Plaintiff. It is then up to the Defendants to attempt to apportion the loss between them.
IMMATERIAL
A common objection to evidence being adduced at trial, on the basis that the information has nothing substantial to do with the case.
IMPLIED CONSENT
The opposite of express consent, implied consent occurs when surrounding circumstances exist which would lead a reasonable person to believe that consent had actually been given, even in the absence of direct or explicit word. In the context of ICBC injury claims, implied consent is sometimes an issue with respect to whether or not a driver had consent of the owner to drive the owner’s vehicle.
INSURED
A person who pays insurance premiums to ICBC, and who is entitled to be compensated for any loss by ICBC under the terms of a contract called an insurance policy. For example, the insured can be entitled to accident benefits, vehicle repair, market value of the car in the event of a write off. The insured’s policy will also pay out any claims made against the insured in the event that an insured is responsible for an accident. If an insured breaches any provisions of the insurance policy, ICBC may deny coverage to the insured.
INSURER
An insurance company which agrees to pay an insured for losses suffered, pursuant to the terms of an insurance policy.
INTERROGATORIES
Interrogatories, or written interrogatories, are a list of questions asked by one party of the other party as part of the pre-trial discovery process. The questions must be answered in writing, and under oath
ISSUE ESTOPPEL
The legal doctrine of issue estoppel applies to issues that have already been determined in other proceedings. Such issues cannot be relitigated in the hopes of obtaining a different ruling by the Court.