Highway accidents are on the rise. There have been several serious collisions in the news this past week.
What should a person involved in an accident make sure they do at the scene of the accident?
The first thing is to assess any injuries, get out of a vehicle in a dangerous situation and call for emergency assistance. So many secondary accidents happen when vehicle accidents are on busy roadways. If a person remains in the vehicle or near the collision site, they can suffer injuries in the secondary accident. We all carry our smartphones these days, or someone in our vehicle does.
Once the situation is safe, the best thing a person involved in an accident can do for themselves is to take many photos. After you leave the scene, what happened becomes a he-said-she-said situation. Those photos can save so much grief arguing with ICBC about who was at fault and you never know what the other people will say happened.
Take photos of the accident scene in every direction and photos of the vehicles before the owners or tow trucks move them. Photos of the roadway to prove there were or were not tire skids or where the vehicles came from and any debris from the collision. Photos of the tire tread of all the vehicles involved, especially in winter. Close-up photos of the collision points and damage – far away photos too, but the close-up photos are important.
If the accident involved a wild animal, close-up photos of the damage with evidence of the animal collision – blood and hair or photos of the dead animal. Photos of every driver’s ID and names or photos of the ID of all passengers and witnesses. Photos of the license plate numbers of all vehicles involved and insurance paperwork. Photos of any injuries – at the scene and in the days following.
You have to think like an investigator – although it can be tough to do if you are injured, if it is at all possible, get some photos or get a witness or bystander to take some and send them to you. All of this is keeping in mind not to put yourself in danger or make any of your injuries worse.
What is available to the injured people under the No Fault legislation?
Injury rehabilitation, mostly. Massage, physiotherapy, kinesiology, acupuncture. If the injuries are more serious, you can ask for approval for an Occupational Therapist to assess you and help direct your rehabilitation, and advocate for you with the ICBC adjuster as to what therapies and assistance you need.
If your injuries require home modifications, such as a ramp for a wheelchair, these expenses are covered, as are home care nurses and personal care while you are disabled. If you are employed and are disabled from working, you will receive income replacement while you are off. However, once you return to work, even part-time, the income replacement benefits will stop. And if you were retired, unemployed, or a student you do not receive any monetary support.
If you are a contract worker, or self-employed, it can be very difficult to access any income support either if you cannot prove the wage loss you are sustaining. For example, if you are a performer, how do you prove wage loss for future jobs you have to turn down?
Finally, there is homemaking coverage for the primary homemaker of the family and some child care coverage while they are disabled. This is also difficult to prove and a person has to advocate for themselves with the adjuster to get these benefits covered. There are some good coverage options during the initial phase of your injuries though.
Is that different if there is a fatality?
Yes, in that very sad situation there are several pieces of support available – thankfully. ICBC will pay for the expenses associated with the funeral and burial or cremation (up to about $9000) and grief counseling for each family member (up to about $4000). Also, immediate family members are entitled to lump sum payments.
The surviving spouse will receive a minimum $68,000 payment plus income replacement benefits depending on the age of the deceased. If there is no spouse, the dependent children receive this sum. The surviving dependents also receive a payment between $32,000 and $62,000 depending on their age. If there is no spouse or dependent children, the parents or adult children receive a smaller lump sum.
If someone other than the deceased caused the fatality, then their family can also claim financial support under the Family Compensation Act. This requires a Court application and includes amounts for the financial support the deceased would have provided in their lifetime, as well as wages lost for family members during their mourning period.
This claim has many challenges for the spouse, there is a lot of evidence they need to provide. It is not always very fair, for example, if the spouse remarries and the new spouse has a similar income to the deceased, the spouse loses any claim for that loss.
In the end – it is not a great system to go through for a grieving widow.
The Children, however, have an easier claim under this legislation as it is a very straightforward process where they are provided a one-time payment for the loss of guidance, child rearing, and love from the deceased parent. Also kind of an unfair thing is that any payments already made to the family by ICBC will be deducted from any amount the family is entitled to under this legislation. And then, finally, if the Deceased was a contributor to CPP, their family is also entitled to support from CPP in the form of a monthly survivor’s pension for their spouse and children.
The survivor’s pension is not dependent on whether they have received anything from ICBC or the Family Compensation Act.
How does a person involved in accident access the assistance available?
Their first call after seeking medical attention is to call ICBC, report their injuries, and get a claim number. With that claim number, they can access treatments immediately and the service provider (massage or physiotherapist, or chiropractor) can directly bill ICBC.
It is important to your recovery to get in for treatment and care quickly. Also, some benefits like massage are only covered early on after an accident.
Can a lawyer assist under the new No Fault system?
No, other than making a claim under the Family Compensation Act. The new system is designed to be a direct communication between adjusters, treatment providers, and the injured person or a deceased’s family. All disputes about benefits coverage are now dealt with through the online Civil Resolutions Tribunal.
There is no claim for damages any longer – those were legislated out by the provincial government in May of 2021. As was the right to take disputes to Court. As such, lawyers have no role in the new no-fault system for motor vehicle accidents because, in motor vehicle accidents in BC, it doesn’t matter who was negligent or caused the injuries.
Lawyers still deal with injuries respecting poorly designed or maintained spaces like sidewalks or stairways when people suffer injuries or injuries that arise from assaults. But the legislation prohibits any claims for injuries in car accidents in BC, even for pedestrians or cyclists.
The government wants those people to deal with those injuries themselves and they made sure of it with the new ICBC changes. This is not to say the system is without benefits, it will help lots of people, but lots of people will fall through the cracks or whose injuries took longer to heal or had unexpected consequences and those are the ones who the lawyers usually assisted. Now that is not an option.