|
 |
 |
 |
Recently the Vancouver lawyers from Simpson Thomas met with an interviewer to discuss personal injury law. What resulted was some very relevant information that will really help you understand the ICBC claim process, your rights, and the actions you must take immediately to protect yourself.
INTERVIEWER
Good morning everyone. I’d like to go around the room. My first question is: Of all the areas of law that you could have gone into, you chose personal injury law and I’m just wondering what went into your decision?
JEAN-MARC
After graduating from law school, I was exposed to personal injury litigation in that first year and found that I had a lot of client contact and lots of interaction with a variety of experts. I found it very challenging, interactive, and rewarding.
INTERVIEWER
I would think it’s probably the most or one of the most personally rewarding areas of law.
JEAN-MARC
It can be, but it can also be one of the most difficult, demanding, and challenging. It is definitely one of the most rewarding, in so much as you do have a lot of client contact and you do have many people walking into your office who are broken either physically or spiritually. They need a lot of help and it is wonderful to see those people heal over the course of our representation.
INTERVIEWER
Cathy, can you tell me about yourself.
CATHY
I articled with a small law firm in Vancouver that practiced exclusively in the area of BC personal injury law. I found it very challenging and rewarding. I enjoyed working with clients and helping people who really were in need. People who, because of the accident, had reached a point in their life where they weren't able to function day-to-day, particularly the catastrophic cases. When you're dealing with families and infants who are injured, it's so rewarding. You feel like you're making a difference in someone's life.
INTERVIEWER
And you, Anthony?
ANTHONY
I was always interested in civil litigation. When I was an articling student, I found personal injury law most exciting for me. For a number of years, I did a lot of personal injury work and found myself gravitating to the plaintiff’s side because I did enjoy the personal contact with clients and liked dealing with and working for people.
I like representing people who were the victims in the accidents. I find it much more rewarding when I represent people who’ve had their lives turned upside down. If you’re on the defence side of the lawsuit, you’re dealing with a client who simply treats each case as business. When you’re dealing with the plaintiffs, the victims, it’s their whole life that's been affected. They really do need people to assist them throughout that whole process and I always find it very rewarding.
INTERVIEWER
I would guess this type of law is unique. I mean, I can imagine someone is simply driving to work and all of a sudden ... bang ... now they’ve been in this serious accident. It must be such a surprise and shock to them in so many different ways...
ANTHONY
Yes, everybody who’s in an accident, especially the more serious ones can have their lives turned upside down in the blink of an eye! I don’t think anybody can take steps in advance for anything like the devestation that occurs from a serious injury. It’s a very traumatic experience for them, not just the physical pain but the emotional and financial fallout from an accident... so it’s a very challenging and upsetting time for them and these people really do need help and it’s really nice to be able to provide that assistance.
INTERVIEWER
Robert, could you tell me how you happened to get into personal injury law?
ROBERT
I had a family member who had a permanent disability and her insurance company denied her claim. She had a long struggle with a disability insurer. I saw her frustration and watched her financial resources dwindle. I felt that she needed someone to fight for her and wished I could be that person. That’s why I went to law school. I’ve always liked the idea of fighting for the little guy.
INTERVIEWER
When someone has been involved in an accident, what is the first thing they should do?
JEAN-MARC
Well, the first thing they should do is get medical help, see a doctor, go to the hospital. Often because of the adrenalin and the shock of being in an accident, they’re not experiencing immediate symptoms. But it’s important to get fully checked out.
INTERVIEWER
What could someone expect if they suffered a mild brain injury?
JEAN-MARC
Well, if the person has suffered a severe brain injury, he or she might be in a coma or unconscious and the person will need medical attention immediately to save his/her life. If the person's brain injury is milder or mild, the person may not become aware of the deficits until after the intense physical pain subsides. Surprisingly, many people can suffer a brain injury yet not have any objective evidence. By that I mean nothing shows up on the CT Scan (Editor’s Note: Computed Tomography (CT) imaging, also known as "CAT scanning" (Computed Axial Tomography)).
Just because there’s nothing to objectively verify the injury, that doesn’t mean they haven’t suffered a brain injury. I think the most important thing is to immediately get medical assistance. After that, they should contact a lawyer right away. There’s enough stress and anxiety right after an accident. Leave it to the experts to take care of the business side of dealing with ICBC.
INTERVIEWER
After they’ve talked to a doctor, why should they then talk to a personal injury lawyer before going to ICBC?
DAIRN
When I’m speaking to a client early on following an accident, I try to make sure that whatever evidence will be required later to prove a case is secured, particularly on the issue of whose at fault for the accident. For example, an individual involved in an accident may think that the issue of liability is clear-cut and that the responsibility lies with the other driver or some other party.
However, later on who's at fault is raised by ICBC and if the job isn’t done properly then the client might lose their entire case.
Eyewitnesses to the accident, physical evidence at the scene, that sort of thing... so one of the things I usually do if I suspect there will be a liability issue is to get someone out there, take photographs of the scene, find out who the witnesses were, secure statements from those witnesses and even get an engineer out to the scene, to look at the photographs, look at the scene and assemble an opinion for me early on.
INTERVIEWER
So you’ll arrange that for them?
JEAN-MARC
I've done it frequently. Often it's not clear to the injured party that fault for the accident may be an issue. For this reason alone, it's important to speak to a BC personal injury lawyer. We have a fault based legal system in BC and if you can't prove the other driver's at fault you may get nothing for your personal injury claim.
ROBERT
Another key point is that often eyewitnesses can confirm that an injured party had certain symptoms which are consistent with a serious injury. What many people do not know is that they have to prove that their symptoms they feel are a result of the accident. It might seem obvious to the person but this issue ("causation" for the injuries) is frequently rasied by ICBC.
Witnesses at the scene can really help with the presentation of a head personal injury claim because frequently someone who suffers a brain injury also doesn't remember the accident or a period after the accident.
INTERVIEWER
I guess what you’re saying is no matter how many lawyer shows they’ve seen on TV, please don’t act as your own personal injury or ICBC lawyer. Go to someone who knows what they’re doing.
JEAN-MARC
Well, there’s no risk involved in contacting us.
INTERVIEWER
No risk?
ANTHONY
All it takes is a call and it’s cost-free. There's no cost to the client to call us to get at least a quick opinion on the value that an ICBC lawyer can bring to the claim.
INTERVIEWER
So what you're really saying is that if someone were injured in an accident, they certainly would seek medical advice and it just makes sense to talk to a personal injury lawyer before you get into the legal process?
CATHY
Exactly.
JEAN-MARC
On a very practical level if the injured victim comes to us, it’s free of charge to meet with us and if we are retained, we can take care of all the necessary paperwork so that generally the client doesn’t have to go down to ICBC or deal with them on a one-to-one basis, we can take care of all of that.
INTERVIEWER
That’s so important.
ANTHONY
That’s right. If ICBC needs information from our clients, we’ll take care of it and deal with ICBC for them.
INTERVIEWER
That's just a huge advantage of dealing with Simpson Thomas. If someone is injured in an accident, how do you know if your injury is serious enough to actually contact a personal injury Vancouver lawyer?
ROBERT
I think if it’s serious enough to contact a doctor, you should be considering talking to a lawyer. Even if you just want to wait and see, you’re still way better off talking to the lawyer. At least you’ll know your rights and obligations.
ANTHONY
In the first days or weeks, in the immediate aftermath of an accident, often people don’t know how severe their injuries are going to be. At times people will feel pressured to go back to work. Complications often arise or their personal injuries are more severe than they first thought.
We feel that in virtually every case, people will get a better settlement through us than they ever would on their own. So whether it’s a big settlement or not, they’d do much better with us than on their own and so as Robert says, if it’s enough that you go to a doctor for treatment then it’s certainly enough to come to see a lawyer to get help.
INTERVIEWER
How soon after an accident must it be reported to ICBC?
ROBERT
If it’s a hit and run, the person should see a lawyer absolutely immediately because you have certain obligations that you have to fulfill. If it’s a hit and run, in all cases you should see a lawyer right away.
CATHY
Or if you have been hit by a defendant vehicle which is owned by a municipality, it is really important that you contact us right away as there are certain notice requirements and shorter limitation periods associated with that circumstance.
INTERVIEWER
I guess the real answer is that they should be contacting Simpson Thomas and you’ll take care of that. People shouldn’t try and figure it out on their own.
I just see this person driving to work. They get in an accident. Then they have the medical issues to deal with, the financial issues to deal with, so obviously, they need a law firm like Simpson Thomas to just help and guide them through it all.
JEAN-MARC
Absolutely. Particularly if a person has private insurance through his/her work that may pay him/her disability benefits. The person may have to pay those benefits back to the disability insurer when you settle with ICBC and there is often some negotiations required. This can be very complicated.
INTERVIEWER
And I guess all of sudden if you need money, then you may be tempted to sign, to get that money in your hands right away.
ROBERT
Certainly, that’s another issue entirely. Often clients come in with settlement proposals from ICBC before they have ever recovered from their injuries. And inevitably, an early settlement usually works to the disadvantage of the injured party. I don’t think I’ve ever known of an incident where that wasn’t the case.
INTERVIEWER
What if they can’t work because of the injuries?
CATHY
The person may be entitled to disability benefits from ICBC. We help all our clients apply for and obtain all of the benefits they are entitled to. It’s worth noting that we do not charge our clients for this service and there is no fee for our assistance in helping our clients apply for “No Fault” benefits.
ANTHONY
I dealt with a family compensation claim a few years back where the deceased individual was the main income provider for a household and had a life insurance policy no one knew about for almost a quarter million dollars. Through the litigation process, we were able to unearth a policy of insurance for quite a bit of money.
INTERVIEWER
Yes and as this conversation goes on, I just see more and more that people really need someone objective on their side.
DAIRN
When you’re injured, you really need to focus on getting medical attention and treatment. That in itself is huge for the client and many people have trouble coping when they have to deal with all these other issues that arise.
INTERVIEWER
What if they don’t have a doctor?
ANTHONY
It is important to have a family doctor. You need to have the continuity of one treating doctor who can see the changes over time and what treatments are beneficial or not. The clinical records and the charts that the doctor keeps form a very important component of the evidence that is needed to support the case.
INTERVIEWER
As people reading this now realize you absolutely have to have a lawyer, Cathy, do people sometimes feel intimidated about contacting a lawyer?
CATHY
I think people may be concerned before they meet us, but it’s been my experience that most people feel at ease after we give them some advice and once they know everything that we can do for them.
Often clients are relieved that they don’t have to go down to ICBC or deal with an adjuster. Simpson Thomas will take care of all the legal issues and help obtain the medical and disability benefits available. That way they can just focus on getting better.
JEAN-MARC
I think it’s important to understand, as well, that our job is to represent the client… the client still makes the decisions.
INTERVIEWER
So your clients are still in control of their claim?
ANTHONY
Definitely. We can’t force them to go to court against their will and we can’t prevent them from going to court if that’s what they choose. Our role is to assist them through the process and fight for their interests.
INTERVIEWER
When a client comes in to see you the first time, can you tell them how much their claim is worth?
ROBERT
Initially it’s impossible to tell how much a claim is worth. The value of a claim is determined by the extent of the injuries and the impact those injuries have on a person’s life. Only over time will we really know the extent of a client’s injuries. Some people recover quite quickly and, unfortunately, some other people take much longer to recover.
INTERVIEWER
Can you give some kind of “ballpark” estimate right at the beginning?
ROBERT
Let me answer the question by telling you about a recent case I was involved in. Initially, it looked like the settlement would be in the low 5-figure range, but once the medical picture became clear, and that took a number of years, the judge was able to understand that our client would have a loss of earnings well into the future and she awarded much, much more.
INTERVIEWER
If a person didn’t have a lawyer who has expertise in personal injury claims in BC, how would he or she know if the offer’s fair or not?
DAIRN
They don’t know. When cases are being handled by people on their own, the biggest problem, I think, is that they don’t understand the process. They don’t understand the value of the claim and they aren’t able to develop or get the evidence that’s needed to make a stronger case. Good cases don’t just happen. Individuals acting on their own really have a difficult time.
INTERVIEWER
If good cases don’t just happen, how can Simpson Thomas help?
JEAN-MARC
It’s very important to retain experts who are credible and who are not only experienced at what they do but who have given evidence in court and whose opinions are respected by the court. When you walk in to trial, you must know the judge who’s going to be sitting at the head of the room will look up and pay attention when your expert is called to give evidence.
INTERVIEWER
Again, this is an area where Simpson Thomas will help the people?
ANTHONY
Absolutely. I don’t think we leave any stone unturned in that department.
INTERVIEWER
And Jean-Marc, I think that you mentioned earlier that dealing with Simpson Thomas doesn’t cost the person any money until the claim is settled. Is that correct?
JEAN-MARC
Absolutely. It can cost a lot of money to hire the very best experts. As part of our representation agreement with our clients, we take on the claim and the costs associated with bringing the claim forward until the settlement.
ANTHONY
It’s already difficult enough for the clients to deal with their injuries. Most people don’t have an extra five or ten thousand dollars to throw at all kinds of disbursements (legal costs). So we’ll advance funds to cover the legal disbursements until the settlement.
INTERVIEWER
That would sure put my mind at ease. Now let’s move on to some of the other steps in a claim. Cathy, could you talk about the Examination for Discovery?
CATHY
Examination for Discovery is a step in the legal process where the ICBC lawyer will be able to ask you questions about your claim. So it can be a very scary and daunting experience, but our job is to prepare our clients for questions that the clients can expect from the ICBC lawyer and we do a very good job.
INTERVIEWER
So you’ll go over the likely questions and you’ll assist them in that area?
CATHY
Exactly. We’ll never tell a client what to say as he/she just has to be honest and tell the truth, however, how you answer the questions is important. Our clients are well prepared before they go into discovery because everything a client says at the Examination for Discovery can be used against him/her at the trial. The preparation stage is extremely important and that’s where we can make a big difference.
INTERVIEWER
And Anthony, maybe you can explain the Mediation process?
ANTHONY
Usually the Mediation is held in a boardroom setting around a table. The mediator is neutral and is not there to give advice but simply to help facilitate the negotiations. We put our client’s best case forward and the ICBC lawyers and adjustors will present the case from their perspective.
The objective for us is to get the best possible settlement. Through the course of the Mediation, we advise our client of the risks and whether it makes more sense to try to resolve the claim at the Mediation or carry on to a trial. The advantage of Mediation is that the client has a direct say in the outcome and makes his or her own decisions. If you go to court, the judge or jury decides who was at fault and the value of your claim.
INTERVIEWER
How important is Mediation in the whole claim process?
ANTHONY
Mediation has become an increasingly important way to resolve these disputes without having to go to court. We always prepare a settlement proposal for Mediation, which is a summary of the claim, and attend the mediation with our client to negotiate with the ICBC lawyer.
INTERVIEWER
I think that people are concerned that if their case goes to trial, then any award will be eaten up in lawyer fees and trial costs.
ROBERT
Actually, the way our fees are structured, our clients never have to pay us anything if we do not collect for them in a settlement or at trial. In fact, our fees do not increase as the claim progresses. Each client pays us the same percentage fee whether they settle or go to trial. We want our clients to base their decisions on the merits of their case and not the fact that they may have to pay us a higher percentage to continue to act for them.
INTERVIEWER
Dairn, could you talk about when it might be advisable to go to trial?
DAIRN
Whether or not it’s advisable to go to trial will depend on our assessment of what a judge or jury will likely award our client.
If the ICBC lawyer is not offering a fair settlement, then the best decision may be to go to trial. Each client has his/her own risk tolerance and the ultimate decision is in the hands of our client. Through our years of experience we’ll advise our clients whether the settlement ICBC is offering is fair.
INTERVIEWER
There are a lot of good law firms out there. Why should someone choose Simpson Thomas?
ANTHONY
The benefit of choosing Simpson Thomas is that we focus exclusively
on personal injury claims from motor vehicle accidents in BC. We have literally years and years of experience in this area. We also don’t bear any allegiance to ICBC in any way. We never “play both sides of the fence” so to speak as we NEVER represent ICBC against people who are injured. As I mentioned earlier, we leave no stone unturned to help our clients.
|
|
|
|
