ICBC claims - What is Loss of a Capital Asset?

If you have been involved in a motor vehicle accident where you were not at fault, you likely know that you are entitled to be compensated for your pain and suffering and for any out-of-pocket expenses, such as medication costs, costs for treatments from physiotherapists, etc.

What you are also likely clear about is that you can claim the money you will lose if you are unable to go back to your job. What you may not be aware of is that even if you are able to go back to your job, you can still make a claim for compensation if you have been left less capable of some types of work.

The Courts have developed a four-part test to determine whether or not you are entitled to financial compensation in those cases where you have returned to your previous job. This type of claim is sometimes referred to as 'Loss of a Capital Asset'. The four parts of the test are:
1. Are you less capable? 2. Are you less marketable, or less attractive as an employee? 3. Have you lost the ability to take advantage of all job opportunities which might otherwise have been open to you? 4. Are you less valuable to yourself as a person capable of earning income in a competitive labour market?

Let me give you an example:
I was recently retained by a fellow who was walking across the street with the walk sign and was hit by a car making a left-hand turn. The car was clearly in the wrong. My client's knee was badly broken but one of Vancouver's best surgeons was on call that night and did such a good job of repairing the knee that six months of rehab later, he was able to return to his previous job. It was a unionized position, which meant he had good job security and the company he worked for was very large, so unlikely to go out of business any time soon. On the face of it, my client had only a claim for pain and suffering and for out-of-pocket expenses. In looking at the four part test, we determined that: 1. he was less capable - he had been unable to regain full range of motion in his knee; 2. he was less marketable - some employers would be less likely to hire him with this permanent restriction; 3. he would be unable to take advantage of some job opportunities in the future - e.g. he would be unable to apply for jobs that were physically demanding; 4. with all of the proceeding, it was clear that he would feel less valuable and less confident in the competitive labor market. We argued that in addition to compensation for pain and suffering and out-of-pocket expenses, he was entitled to compensation for Loss of a Capital of Asset. At mediation, we were successful in obtaining $200,000 for just this part of his claim.

So, remember - even if you are able to return to your pre-accident job, you may be entitled to compensation for Loss of a Capital Asset.

Longterm Disability Lawsuits and the need for Lay Witnesses

In my last blog on disability insurance companies, I took them to task for their delaying tactics. Now, I want to talk about what to do once your lawsuit is underway and the insurance company has hired an expert who says you are not disabled.

Insurance companies have deep pockets. They have a list of doctors they regularly go to for expert reports - where they know in advance the expert's report will support the insurance company's position that you are not disabled and are employable. Hopefully, you also have a number of expert reports from doctors that support your disability.

With the insurance company's experts in one corner of the ring and your experts in another corner of the ring, we have what might be described as a "Battle of the Experts". In such a case, it may be very difficult for the court to decide whether or not you are in fact disabled and unable to work.

In my practice, I have found it very effective to break this logjam by preparing and relying upon a number of lay witnesses. For example, many years ago, I had a client who was suffering from Chronic Fatigue Syndrome. As is so often the case with this condition, my client had good days and bad days. A good day was like a "gift from heaven" - he would be as active as possible. This helped break the monotony of his many bad days - where he would typically be in bed all day. On one of his good days, he was out for a drive in his vehicle. His vehicle was an older rundown vehicle because the insurance company had terminated his disability benefits quite some time ago and, as such, my client was of very limited financial means. On his way up a hill his vehicle stalled. My client got out of the car and pushed it up the hill! Little did my client know that he was under video surveillance by the insurance company!! Now, many people might have thought that this would be the end of his lawsuit. How could my client claim to be so disabled by his chronic fatigue syndrome that he was unable to work, if in fact, he was physically capable of pushing his car up a hill? I have to admit that even I had some concerns about the strength of his case. As is so often the case, a lay witness - not an expert, proved to be key.

I set about developing a list of potential lay witnesses. I asked my client to give me the names and contact particulars for any friends, neighbors, relatives and others that he thought might be of benefit to his case. I carefully interviewed all of these witnesses, witness by witness, until I came upon the landlord. He was a very credible individual - a retired RCMP officer. I was so impressed with what he had to say about my client - he confirmed from eyewitness evidence that my client did spend days on end bedridden and that on many occasions he, the landlord, had to provide assistance such as meal preparation and running of errands. Clearly, my client was not capable of employment. I thoroughly prepared this witness and then contacted the insurance company's lawyer to arrange for mediation. I suspect that the insurance company only agreed so quickly thinking that we were ready to 'throw in the towel', given the video surveillance.

I brought the lay witness, the landlord, to the mediation and kept him in the waiting room. After each side had done their best to convince the other of the strength of their case, I let everyone know that if we did not settle that day, I had a retired RCMP officer, my client's landlord, as a lay witness who I would be bringing to trial. I then did something rather unusual -- I invited the insurance company's lawyer to interview the landlord 'then and there' in my presence. They took me up on my offer. They were so impressed by the evidence of this witness that the file did settle that day for a third of a million dollars!

The point is: while you should never ignore or underestimate the need for experts, it's also very important to invest the time necessary to develop your lay witnesses. This will almost certainly give you an unbeatable advantage over the insurance company! You have much better access to lay witnesses.

Your right to go to court is about to disappear

One of my most memorable conversations, from when I was an articling student working for the late Harry Rankin, involved a client concerned about the cost of litigation. She wasn't concerned about Harry's fee -- he was always more than fair and would work on a contingency fee basis whenever the client requested -- it was the potential Court costs - such as Court filing fees, trial hearing day fees, and jury fees, that worried her. Her comment was "This is not the way a justice system should be run". Harry's response was quick and to the point "We have a legal system not a justice system."

As expensive as the court system was then, it has become even worse over the last number of years. Just recently, in a well-publicized case, victims of the B.C. Queen of the North Ferry sinking had to abandon their lawsuit on the eve of the trial because they could not afford the exorbitant jury fees. Their lawyer, to his credit, held a press conference to publicize this fact.

All of the above is not just to complain about the current state of affairs, that is, that it is costly to go to court. I am writing this article because --believe it or not -- Gordon Campbell and the provincial Liberal government are about to make it far far worse.

A full new set of Court Rules are currently under consideration and appear to be on the verge of being approved by the provincial government without even bringing the matter before the Legislature for a vote. These new rules will significantly increase the costs of going to court.

Even more disturbing is a proposal to prevent any case from going to court where you do not have the proof in advance. Let me explain:

While in many cases you have the evidence you need -proof such as a broken arm as a result of an assault or a damaged fender as a result of a motor vehicle accident, there are many cases where you do not have the evidence to prove your case when you start your lawsuit. A perfect example would be the case referred to above -- the sinking of the B.C. ferry Queen of the North. The fact that the ferry had sunk was without dispute but why it sank was open to question. For example, was there negligence on the part of BC Ferries either in the navigation of the ferry or in proper mechanical maintenance? The question of why certainly could not be established prior to the lawsuit being commenced. What you had was deceased and injured passengers and a 'sunk boat'. What you didn't have was proof that explained the sinking. In our present system, you can start your lawsuit -even though you don't have the proof. After you start the lawsuit, you have the right to examine the defendant under oath to get to the truth/proof. In this case, the defendant would be BC Ferries employees. The new rules no longer will allow you to do this. You will be stopped from even starting a lawsuit unless you have the proof first.

For more information about the proposed new rules, I highly recommend you visit protectingjusticeforbc.org