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What is a Tort Claim?

A “tort” claim is what most people will refer to as an “ICBC claim”. It is a claim for compensation for injuries. However, an “ICBC claim” involves two separate but overlapping claims. One is the claim for Part 7 benefits, discussed last week. Those benefits are paid without reference to the issue of “who is to blame”.

What is tort?

The word “tort” comes from the Latin tortus meaning twisted or crooked. In English, it became a synonym for “wrong”. A tort is a civil wrong, and the tort generally related to motor vehicle issues is negligence. It typically involves carelessness. Sometimes the carelessness may be on a very gross scale, and sometimes it may be minor. Regardless, accidents are rarely seen as inevitable, and one or more of the drivers will usually be to blame.

The driver who negligently causes an accident, and is 100% to blame, cannot pursue a tort claim. The driver who is innocent of blame, can. Drivers who are jointly responsible for a crash may be in a position to claim against each other and recover compensation.

Pain and suffering in a tort claim

The concept of the tort claim is the key to significant compensation, particularly with regard to pain and suffering. The Part 7 benefits program does not compensate for pain and suffering.

The Supreme Court of Canada in 1977 set the upper limit for an award for pain and suffering, at $100,000 for the most catastrophic injuries. That amount is adjusted for inflation and stands around $300,000. Additionally, compensation may be awarded for income loss, cost of future care and out of pocket expenses.

Passengers are generally not held to be blameworthy with respect to injuries suffered. However, a failure to wear an available seat belt, or traveling with a driver who is obviously unfit to drive, will often result in a finding of contributory negligence, perhaps by 25% or more, which will be the measure of the reduction of the monetary compensation.

ICBC claim

ICBC is the sole liability insurer for automobiles in BC, so it will usually be ICBC that one is dealing with, in relation to the “tort” liability of the responsible driver. Not infrequently, however, out of province drivers cause accidents. It then becomes apparent that what is known as an “ICBC claim” is actually being dealt with by an out of province insurance company, and ICBC is only peripherally involved for the Part 7 benefits.

Although the tort system functions entirely on the basis that the responsible party has the means to pay compensation, sometimes drivers have no insurance, as in the case of stolen vehicles. What then? Well, mercifully there is legislation that provides a fund for compensating innocent injured parties.

Is the tort system good? In conjunction with mandatory liability insurance, it has worked well for many years to provide compensation, ultimately supervised by the court system. Nevertheless, for permanently injured people no amount of compensation will ever be satisfactory. So, the most important concern is accident prevention. Please drive carefully.

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