What Compensation Is Available for a Head or Brain Injury Accident?

Paine Edmonds - Thursday, June 15, 2017

An acquired head or brain injury can impact your life significantly. From getting ready in the morning to earning an income, to preserving an interpersonal relationship, and raising a family, a brain injury can make seemingly simple tasks far more difficult to achieve.

Defining what is a Brain Injury?

A brain injury entails an external force, such a blow to the head or whiplash-type injury or an object penetrating the skulls that damages the brain.

The severity of a brain injury can be mild, medium or severe. It can entail symptoms such as headaches, fatigue or trouble concentrating, short-term memory problems and difficulty with executive functions to permanent loss of consciousness or paralysis.

While many brain injuries resolve themselves over a period of months, some people never completely recover from them.  Even a mild brain injury can be permanent. Given the significant impact a brain injury accident could have on your life, it is important to be aware of the compensation available to you.

Part 7 Benefits in an ICBC Insured Car Accident

Under Part 7 of the Insurance (Vehicle) Act, ICBC must provide you with accident benefits for motor vehicle accident injuries if you are a BC resident and you meet the insurance eligibility condition. These “no fault” benefits are available regardless of who was at fault for the automobile accident, even if ICBC challenges you about whether you qualify.

For medical and rehabilitation expenses, a limit of $150,000 may be covered under the basic autoplan. Wage loss benefits are also available under the basic plan if you are unable to work because of a total disability caused by a motor vehicle crash. The basic amount payable for wage loss benefits is 75% of your average gross weekly earnings minus the weekly total of wage loss payments from other disability benefits, or $300 per week, whichever is less, with eligibility requirements, time limits and other restrictions.

Homemaker benefits are also available under the basic plan for a limited period with restrictions if you are substantially disabled in a motor vehicle crash and unable to perform most of your household tasks. Up to $145 per week may be payable for you to hire a person outside of your family to perform these household tasks.

If other benefits (e.g., medical, disability) are available to you elsewhere for your losses resulting from the accident, you are required to apply for coverage there first, such as a work or private disability plan or Canada’s employment insurance disability sickness benefits. ICBC will subtract amounts covered under other benefit plans from the accident benefits they pay to you. However, these recovery benefits are usually the smallest part of your total compensation if the other driver was at-fault.

No Accident Benefits for Slip & Fall Type Claims

Unfortunately, there are usually no accident benefits available in situations where no motor vehicle was involved and no work situation, such as if you slip and fall on the property of someone else’s home or business you are visiting or if you are a pedestrian struck by a bicyclist. Accident benefits are also unlikely to be available if you are hurt in a boating accident, especially if the boat owner has no other insurance but a home insurance policy to cover his or her third party liability.

Again, as part of pursuing a tort claim, you will need to apply for benefits if you qualify somewhere before being able to submit unpaid amounts for your personal injury case. If you have losses above the amounts you are covered for and fault lies, at least in part, with another party, you will likely find it beneficial to file a personal injury (tort) claim. A tort claim can potentially provide you with substantial compensation for your accident injuries.

Tort Claim

If you file a personal injury (tort) claim for compensation, then you will need to show that the person or entity owed a duty of care to you, prove your injuries, that your injuries resulted from the accident in question, and they were caused by the negligent party. A driver, for example, owes a duty not to cause harm to others and a duty to protect himself or herself in the course of sharing the roadway.

A successful personal injury case will provide you with compensation for general damages (e.g., pain and suffering, loss of enjoyment of life, emotional distress), and may include particular special damages (e.g., lost income, loss of future income/earning capacity, uncovered medical expenses, property damages, funeral and burial expenses), and other damages, depending on the unique facts of the case.

Most personal injury cases (about 95%) are settled instead of going to a trial and the court is not restricted to the insurer’s limits. Your personal injury lawyer in Vancouver will handle your case delicately and advise you if and when to settle.

Underinsured Motorist Protection for Motor Vehicle Claims

If the third party coverage carried by an at-fault motorist is insufficient to cover your tort claim, you may have access to additional coverage under your own ICBC auto policy.

Contact Paine Edmonds LLP for a Vancouver Brain Injury Lawyer

If you or a loved one has suffered a brain injury due to someone’s negligence, you will require the expertise of personal injury lawyer to provide you with ongoing support and advice.  The burden of proof will be on you to provide the required medical evidence to support your claim, which an ICBC injury lawyer in Vancouver is likely to contest.

An experienced personal injury lawyer at our law firm has the resources, support staff and knowledgeable experts to ensure that your evidence is presented accurately and will ensure that your case is argued successfully. We are brain injury lawyers in Vancouver and elsewhere in BC, representing all kinds of personal injury claims. Call us for your free consultation at 604-683-1211.