Big car crash: not big injuries!

Here is a classic misconception: big car crash = big injuries. This is one of the biggest misconceptions that exist around my job. And, it drives me insane…

Believe it or not, the severity of a car crash is NOT proportionate to the severity of harm or injuries that someone experiences in a car crash.

Sadly, though, most people don’t think that. Most people think that a “small” crash or a crash involving slow moving vehicles won’t result in anyone suffering (serious) injuries. BUT, that is NOT true!

And, ICBC preys on that misconception….and they even have a policy that reflects it. It is called the ‘Low Velocity Impact Policy’, also known as the LVI Policy.

Really, the LVI Policy hurts car crash victims. It really does…

And, here’s ICBC’s LVI Policy: basically, when someone is involved in a car crash that involves “slow moving vehicles”’ (having low velocity), then the people in the vehicles are not entitled to any (or hardly any) compensation for their injuries. ICBC representatives will actually tell this to car crash victims.

ICBC’s argument is this: if the vehicles weren’t badly damaged (and were moving slowly at impact), then the occupants couldn’t be injured.

But, that isn’t the case! The speed of the cars in a crash has very little to do with the injuries that someone suffers.

The truth is that someone who is involved in a high-speed crash can suffer ZERO injuries, not even a scratch. AND, at the same time, someone who is involved in a slow moving, less serious crash can suffer VERY serious injuries that require lengthy hospitalization and surgery. This is a fact.

Now, I regularly speak to people who have been injured in a car crash. And, one of the typical concerns that I hear is that they don’t think they are entitled to anything because their crash was ‘low velocity’ (as told to them by ICBC).

And, this is what I tell them: “ICBC is DEAD wrong! Of course you are entitled to money to recover you losses.”

The LAW is that if you suffer injuries, then you are compensated for those injuries. And, the amount of money that you receive is proportionate to the severity of the injuries and the impact that those injuries have on your life.

So, in other words, it doesn’t matter how fast the vehicles were travelling; if you suffer injuries/losses, you are entitled to compensation for your injuries/losses, period. The bigger the losses, the more money you will receive (regardless of how fast the cars were going).

And, those losses can include an award for pain and suffering, for income loss (from money that you would have otherwise earned), and for medical treatment (for treatment that you have to get as a result of the crash).

If you are ever in a “low velocity crash”, remember this: ICBC isn’t the final decision-maker on whether or not you will receive money. Our courts have the FINAL WORD. And, the LVI Policy is NOT the law in British Columbia.

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Column originally posted on Castanet.net on July 9, 2013: Big car crash: not big injuries?!

Seeing dead people (and lawsuits)

In your time on Earth, you have probably witnessed some horrific sites and scenes. Hopefully, those scenes didn’t leave you with any psychological scars. But, maybe they did. If they did, you might be able to start a lawsuit.

I’ll back up…

 

Have you ever driven by a car crash? You probably have. You’ve probably even driven by a car crash in which someone was killed. If you did, though, you probably didn’t see any blood or anything like that. Ambulance and other emergency crews had probably already arrived (and quarantined the shocking bits).

But, let’s imagine that that didn’t happen. Let’s imagine that you saw something horrific.

Here’s an example: you are driving on Okanagan Lake’s floating bridge and, when doing so, you see a school bus, full of children, get in an awful crash. Many of the children are significantly injured and some of them are killed…and you see this. You actually see their final, struggling moments of life.

Or, here’s another example: you are a spectator at a car race and, while there, you witness a horrific car crash…and the horrific and gruesome death of one of the drivers.

Quite obviously, these are horrific scenes. It isn’t hard to imagine that you would suffer some significant mental scars from witnessing these scenes. Maybe you would suffer depression? Anxiety? Who knows…

If you end up suffering a psychological injury as a result of witnessing something horrific, you MIGHT be able to sue (to recover your losses). The key word: MIGHT.

Here’s the law: if you suffer psychological injury as a result of witnessing a shocking and horrific event, then you MAY be entitled to recover your losses, which includes your medical expenses and an award for pain and suffering.

This type of legal claim is referred to as a NERVOUS SHOCK claim.

The shocking event must have been caused by the negligence of another person, like a speeding driver. And, in order to recover, you must have been present for the event, or its immediate aftermath. So, in other words, it is VERY unlikely that you could successfully sue someone if you happen to see something horrific on television.

Keep in mind, though, that the psychological injuries must be serious and prolonged. Quite obviously, they must be worse than ordinary annoyances, anxieties, or fears (that we all experience in our everyday lives).

These claims have a lot of nuances and are complicated. They are not easy to win.

Here is a recent example of an unsuccessful claim: Mustapha v. Culligan of Canada Ltd., 2008 SCC 17.

Mr. Mustapha saw a dead fly in an unopened jug of water supplied by Culligan. Mr. Mustapha and his family had consumed Culligan’s water for the past 15 years (but did not drink the “fly water”). Mr. Mustapha became obsessed about what he had seen and was concerned about the health implications on his family (for drinking the water in the past). Mr. Mustapha was later diagnosed with major depressive disorder with associated phobia and anxiety. In the end, Mr. Mustapha’s claim failed because his reaction to the dead fly was very unusual (and a typical person would not have reacted the same way).

Here’s some advice: next time you pass by a serious car crash or other horrific scene or site, avert your eyes down – it’s a lot easier than starting a lawsuit.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 26, 2013: Seeing-dead-people-and-lawsuits.

Hit and runs: know your rights

A short time ago, I wrote a column giving you some tips about what to do after being in a car crash. Those tips included:

  1. taking photographs of the crash;
  2. getting witness names and contact information; and
  3. getting the contact information of the other drivers involved in the crash.

BUT, what happens if you can’t get the contact information of the driver who caused the crash? What happens if you suffered injuries and the at-fault driver “just drove away”? In other words, what if you are involved in a “HIT AND RUN”?

Well, this is the subject of this week’s column.

 

Here is the law: if you suffer some injuries at the hands of an unidentified motorist, then you may be entitled to some money. “Money” can include an award for “pain and suffering”, for medical treatment, and/or for loss of income. See section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231.

So, how does this work? Well, you obviously can’t directly sue the driver who caused the crash (because they fled the scene, right?). But, you can sue ICBC (so you are not totally out of luck).

But, in order to actually get some money from ICBC, you have to jump over several hurdles.

Among those hurdles, you have to show that you don’t know (and can’t get) the identity of the driver/owner of the other vehicle. This is typically the hardest hurdle to jump over…

So, what does this mean? Well, at a crash scene, you need to do your best to learn the identity of the other driver.

But, let’s assume that the other driver flees the scene right away or you were too injured to get the information. Well, if that occurs, you STILL need to take some serious efforts to learn the identity of the negligent driver. These “efforts” include things like promptly reporting the crash to police and ICBC, canvassing the neighbourhood where the crash occurred, and posting notices/signs at the crash site (pleading for witnesses to come forward). It is common for people to make “insufficient” efforts and have their claims denied.

Another big hurdle is that you need to report the crash to ICBC as soon as you can (and no later than 6 months, at the latest). This allows ICBC to protect itself and “investigate” into the crash, trying to find the identity of the driver.

Another big hurdle is that your credibility needs to be very, VERY good. This sounds easier than it is…

Credibility is a big factor in “hit and run” cases. Often, the only evidence of a “hit and run” is your own words. So, as you can imagine, it is problematic if there are discrepancies in your evidence (i.e. in your statements). For example, if your statement to police is different from your statement to ICBC, then you can have credibility problems. So, be very careful with your words and be very honest.

Now, how much are you entitled to? Well, assuming you can jump over all the hurdles (and there are several), you could receive as much as $200,000.00 for your losses. This may sound like a HUGE amount; but, it may not be (depending on your injuries)…

Lastly, if you are injured in a “hit and run”, I recommend getting some legal advice. There are many hurdles to jump over. And, if you miss one, you could be very sorry later.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 12, 2013: Hit and runs: know your rights.

You’re worth more alive than dead

I had someone ask me last week, “What is the family of a car crash victim (who dies in the crash) entitled to?” That was a great question and is the topic of this week’s column.

 

To start, you probably know that if you are INJURED in a car crash, you have a right to sue the driver who caused the crash. In the lawsuit, you are entitled to money (i.e. compensation for your losses).

Generally, injured car crash victims are entitled to an award for ‘pain and suffering’ and an award for a loss of income (if the victim loses shifts or his/her job). The injured victim is also entitled to an award for medical treatment, which can include medical treatment for the rest of the person’s life. Sounds fair, right?

Well, the situation is MUCH different if you are killed in a crash (rather than just injured).

If you are killed in a car crash, you obviously cannot sue for your losses (because you’re dead). But, some of your family members can: only your parents, children, or spouse can sue the driver.

Now, you are probably thinking, “What can you sue the driver for?” Well, you’ll probably guess that your family could receive money for their ‘pain and suffering’ (for losing you). If you thought that, though, you’d be wrong.

After you die in a car crash, the resulting lawsuit is controlled by the Family Compensation Act , R.S.B.C. 1996, c. 126. And, in these types of lawsuits, your family can ONLY get compensation for their FINANCIAL loss resulting from your death. That means that there CANNOT be an award for ‘pain and suffering’.

I’ll explain…

Here is an example: You are 40 years old. You have a husband and two children. Your family depends on your income (as your husband is a ‘stay-at-home dad’). One day, on your way to work, you die in a car crash. As a result, your husband and children sue the offending driver (who caused your death). From the lawsuit, they are basically only able to get the money (from the offending driver) that keeps them living the same lifestyle that they were living before your death. In deciding how much money to award, the court looks at how much financial support you provided to your family. It is just a math question. There is no award for loss of love/companionship or for ‘pain and suffering’.

Seem unfair? Well, it is. Here is an example to show how unfair it is…

You are 70 years old. You have a husband and two children. Your children are grown up and have left home. You retired five years ago with enough savings to retire comfortably with your partner. One Tuesday, you are killed in a car crash. As a result of your death, your family suffers zero financial loss from your death. As a result, your family would likely receive NOTHING in a lawsuit against the driver who caused your death.

This same situation is applicable to children: if a child (who is killed in a car crash) contributed nothing (financially) to the family, then the family is likely to receive NOTHING in a lawsuit against the driver who killed the child. On the flip side, when a child or an elderly person is injured (and not killed), they are entitled to ‘pain and suffering’ and potentially a bunch of other money.

Clearly, A LOT of people are worth more alive than dead…

Fortunately, the law may change in the future. Currently, there is a group, the Wrongful Death Law Reform Group, that is working to change this current situation in the law. Among their efforts, they are trying to introduce a new law: the Wrongful Death Accountability Act. This law would allow for fair compensation for deceased car crash victims. You can read more about the group’s efforts to change the law here: Wrongful Death Reform Group.

Drive safe…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on January 29, 2013: You’re worth more alive than dead.

Doctors disclosing own health issues

Everyone has gone to a doctor for something. And almost everyone has gone to a doctor for some sort of procedure, whether only minor stitches or a major surgery.

 
When performing a procedure on a patient, a doctor must get that patient’s consent. So, what does that mean? Well, consent in this context is very tricky…
 

Without going into too much detail, the patient has to consent to the procedure voluntarily (i.e. by free will and without any pressure). The patient must also have the capacity to actually give consent (i.e. not be suffering from some sort of mental disability). And, the consent must be informed, meaning the doctor must tell the patient several things, such as the risks involved.

If there was no consent, the doctor could be sued.

This issue of INFORMED consent is the topic of this column, as it is likely the most important issue for most people.

So, in order for the patient to be INFORMED, what does the doctor have to tell the patient?

Put simply, the doctor is required to disclose the answers to specific questions, the nature and gravity of the procedure, and any risks that are probable (likely) to occur. The doctor must also tell the patient about any serious risks (such as death or paralysis) that are merely a possibility (and have a remote chance of occurring).

Doctors are also required to disclose information that he/she knows would influence the patient’s choice to consent to the procedure.

Clearly, doctors have a broad duty for disclosure.

But, are doctors required to disclose their personal information (like their own health conditions) to patients? Short answer: no (with shades of grey).

Generally, doctors don’t have to disclose their own health issues; but, doctors may have to disclose their medical conditions if their conditions pose a risk (to the patient’s health) that is likely to occur or if their conditions pose a risk that could occur (but is unlikely) and would result in serious consequences to the patient, like death.

Consider Halkyard v. Mathew, 2001 ABCA 67. In that case, a woman died following a hysterectomy performed by the defendant physician, who had epilepsy. After the woman’s death, the husband sued the doctor and claimed that his wife had not given informed consent. In other words, the husband was arguing that his wife would not have consented to the surgery had she known about the doctor’s epileptic condition. Keep in mind that the doctor did not suffer an epileptic seizure during the operation; his condition did not impact the surgery (at all).

In this case, the court decided that the doctor did not have to disclose the epileptic condition as the condition was controlled by medication.

In a similar situation (but involving doctor inexperience rather than health), the court in Hopp v. Lepp, [1980] 2 SCR 192 found that the physician was under no obligation to disclose that it was his first such surgery after becoming certified. As you can imagine, this was great for young doctors…

Like with fist fights and sexual relationships, which were both discussed in previous columns, consent is an important and tricky topic (when dealing with your doctor).

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on October 2, 2012: Doctors disclosing own health issues.

Fires and home insurance

Last I heard, over 1500 people have been evacuated in Peachland, B.C. because of the forest fire. I am one of those people…

After packing up, leaving, and watching the fire steadily creep down the mountain, I resolved that I wouldn’t write a column this week.

Today, as I have some time waiting to hear whether or not I can move back in and (more importantly) whether or not my home ‘survived’ the fire, I decided that I would write about an issue that will likely affect numerous people who have been evacuated.

The topic this week: when purchasing/transferring a home, who is responsible for the home insurance? The buyer or the seller?

Real estate sales are slow but of the 1500 people, I am willing to bet that some of the people had homes that were in the middle of being sold.

In the standard purchase contract (that is used by realtors and lawyers alike), there is a clause that states that the property and all items on the property will remain the risk of the seller until 12:01 am on the completion date. So, the seller should definitely insure the property until that time (at least).

After that time, the property and the included items will be at risk of the buyer (so the buyer needs to have insurance from then on).

Seems clear; but, in order to prevent any insurance “gaps”, the purchase contract should require the seller to insure the property up to the completion date (or until the sale has completed) and the buyer should arrange for insurance to run from the day BEFORE the completion date. This way, there is no doubt that the property is insured (should the unthinkable happen).

As well, it is important that the buyer purchase new home insurance and not just assume the seller’s home insurance. This is because the seller could have done something or misrepresented themselves in such a way that would cause the insurer to refuse to pay (if something horrible happens).

Also keep in mind that some wrinkles may exist with the transfer. For instance, a situation may arise in which the buyer is given possession by the seller before the sale is completed. Or, alternatively, the seller may be allowed to stay in possession of the property after the sale completed. In such cases, the buyer and seller should consult with their insurance company to arrange tenancy insurance or whatever the case may be.

With all that said, let’s hope no one loses their home…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on September 11, 2012: Fires and home insurance.

Be afraid: No-fault insurance & ICBC

There’s been some big news with ICBC lately: CEO Jon Schubert will be resigning and nearly 200 positions will be cut in the next two years.

That big news got me thinking about auto insurance and I want to share some information with you.

In B.C., there is a real danger that our auto insurance could change – for the worse – sometime in the future. The change is ‘no-fault auto insurance’.

So, what is ‘no-fault auto insurance’? I’ll explain…

Throughout North America, there are several different models of auto insurance. Those models can be divided into two systems:

  1. a liability/tort system; and
  2. a no-fault system.

The liability/tort system (which is what we have in BC) allows an innocent person to go to court and sue a reckless driver for losses (such as past and future income loss, past and future medical expenses, and pain and suffering) that the innocent party suffered in a motor vehicle crash.

In the no-fault system, innocent victims of car crashes cannot go to court and cannot sue for their losses. The reckless party is not brought to court. Instead, the innocent party is only entitled to pre-determined benefits that are decided BY THE INSURANCE COMPANY. It is a system similar to what occurs in Workers Compensation Board claims.

Quite frankly, no-fault auto insurance strips innocent victims of their right to sue and leaves them with whatever the insurance company is offering to pay, period. So, with that said, why have some provinces/states even experimented with no-fault auto insurance?

Well, insurance companies argue that no-fault insurance reduces premiums, making auto insurance cheaper. The premiums are supposed to be cheaper because the benefits that are paid out to innocent victims are significantly lower. Consider that in Ontario, when no-fault was introduced, benefits that were paid out to injured victims of car crashes were reduced by almost 50%.

So, with less (than fair) benefits being paid out, do premiums actually decrease? Are the savings actually passed on to the public? Answer: ABSOLUTELY NOT. In almost every province or state where no-fault insurance has been introduced, the premiums have (hugely) escalated.

Other than increased prices, no-fault insurance leads to an increase in crashes. Why does this happen? Well, under no-fault, reckless drivers are not sued and, as a result, are not held accountable for their actions. In Quebec, when no-fault insurance was introduced, fatal car crashes increased by nearly 10%.

Despite these negative effects, there was a battle in the mid-1990s in which the provincial government (to ICBC’s desire) was moving to change our auto insurance system. Fortunately, though, the change did not occur – there was a lot of opposition (as you can imagine).

Other provinces weren’t so lucky… Ontario introduced a no-fault system in the 1990s and, after seeing its failures, has reverted back to the tort system.

According to the Coalition Against No-Fault in British Columbia, there are over 200 organizations that are against no-fault insurance in B.C. Such groups include Mothers Against Drunk Driving, various seniors’ groups and student unions, the British Columbia Brain Injury Society, and the B.C. Trial Lawyers Association (who are keenly aware of your rights).

I wish I could go on, but this topic is HUGE – it is impossible to fully describe this issue in a short column.

But, in closing, I will say this: ICBC and other insurance companies are keenly aware that the term ‘no-fault’ conjures up negative feelings with consumers and with the public. So, if it comes up in the future (and hopefully it never will), look for insurance companies to use terms (for proposed policies) that conjure up ‘warmer, fuzzier’ feelings about such no-fault insurance.

BUT, don’t be fooled – you’ll still be paying more for less.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on August 21, 2012: Be afraid: No-fault insurance and ICBC.

McDonald’s and its hot coffee

Few cases are as infamous (and as misreported) as Liebeck v. McDonald’s Restaurants, P.T.S. Inc., 1995 WL 360309 (N.M. Dist.)). It has gained international recognition and is regularly cited as a symbol for frivolous litigation.

This column is intended to ‘clear up’ the misconceptions that surround this case.

Here are the facts:

  • In 1992, Ms. Stella Liebeck, a 79-year-old woman, ordered a cup of coffee from the drive-through window of a McDonald’s restaurant located in Albuquerque, New Mexico.
  • Ms. Liebeck was a passenger in a vehicle driven by her grandson.
  • After receiving the coffee, her grandson drove forward and parked, allowing Ms. Liebeck to add sugar and cream.
  • She placed the coffee between her knees and, in the process, she spilled the entire coffee on her lap.
  • She was wearing sweatpants, which absorbed the coffee and held it against her skin.
  • Ms. Liebeck scalded her thighs, buttocks, and genital and groin area.
  • She was taken to the hospital and suffered third degree burns to six percent of her skin.
  • She reportedly stayed in the hospital for over one week, underwent skin grafting, lost nearly 20% of her body weight, and suffered from two further years of medical treatment.

Despite her injuries, I can already hear skepticism: “Coffee is supposed to be served hot!” Yes, that’s true. But, we can agree that there are limits on how hot coffee should be served, right? Stores need to ensure that their product is safe; to do otherwise would place customers at risk. So, how hot was the coffee? Was it actually dangerous?

At home, coffee is often served at approximately 140°F (60°C). At trial, it was found that McDonald’s restaurants were serving coffee at 185°F (85°C), plus or minus 5°F, capable of causing serious, third-degree burns in under ten seconds.

McDonald’s cited the following two reasons for serving its hot coffee:

  • Coffee purchased through the drive-through window was typically sold to commuters who drove a distance with the coffee. As a result, the higher temperature would keep the coffee hot during the trip.
  • Keeping the coffee at the high temperature promoted optimal taste.

Some speculate that the higher temperature was intended for a profit motive, such as slowing consumption, thereby reducing the demand for free refills.

So, did Ms. Liebeck just want to get rich? Ms. Liebeck initially tried to settle the matter for $20,000.00; she had not retained a lawyer and requested very minimal compensation for her medical expenses and other losses. However, McDonald’s was only willing to offer $800.00, causing Ms. Liebeck to retain a lawyer. Before trial, there were repeated attempts to settle, requesting compensation for losses, amounts that were less than what was awarded at trial. However, all attempts were unsuccessful.

So, how much money was Ms. Liebeck awarded? A jury, who was composed of community members and who heard from medical experts, awarded $200,000.00 in compensatory damages, compensating Ms. Liebeck for her medical expenses and the significant impact/limitations that she had to endure. However, this amount was reduced to $160,000.00 in recognition that she was also responsible for her injuries.

In addition, the jury awarded $2.7 million in punitive damages. Punitive damages are NOT intended to compensate an injured person; instead, they are intended to punish the defendant and deter it (and other potential defendants) from committing similar wrongful acts in the future. McDonald’s put consumer safety at risk; the judge called its conduct willful, callous, and reckless.

Now, $2.7 million is a lot of money, right? But, the award needs to be high if you want a multi-billion dollar company to take notice. The jury’s intention behind the particular amount was reportedly to penalize McDonald’s for one or two days’ worth of coffee revenues, which, at the time, was approximately $1.35 million per day. However, in the end, the punitive damages award didn’t stick; the trial judge reduced the amount to $480,000.00, three times the compensatory award.

In total, at the end of the trial, Ms. Liebeck was awarded $640,000.00. However, McDonald’s appealed the decision and, before the appeal was decided, the parties settled for an undisclosed amount, reportedly much less than the trial award.

With coffee so hot, this couldn’t have been the first claim against McDonald’s, right? It was found that, between 1982 and 1992, McDonald’s received more than 700 claims of coffee burns, many similar to Ms. Liebeck’s, and McDonald’s reportedly paid out large dollars to settle these claims. At trial, the quality control manager for McDonald’s testified that the number of incidents was insufficient to evaluate its practice; he also stated that they had more pressing issues to be concerned about.

So, Ms. Liebeck won, right? Wrong. While Ms. Liebeck got some money and coffee is now served at lower temperatures, Ms. Liebeck’s injuries and efforts have been mocked and the defendant’s conduct has been trivialized.

My suggestion to those who read about cases in the media: do your own research; if it sounds too good, bizarre, or depressing to be true, it probably is.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on January 17, 2012: McDonald’s and its hot coffee.

Genetic discrimination on the horizon

Most everyone can say that they have been discriminated against at some point in their lives, whether it was based on skin colour, a physical attribute, religion, culture, or sexual orientation. But how many people can say that they have been discriminated against based on their genetics? Probably not many – at least, not yet. In the context of insurance, genetic discrimination is on the horizon.

In today’s world, individuals are less able to rely on families or other social support networks to help shoulder loss—the loss of a home to a fire, or any loss resulting from sudden sickness, injury, or death. As a result, the insurance industry developed to provide some ‘cushioning’, compensating people if they suffered some loss. To provide that cushioning, insurance companies require that each applicant susceptive to risk (of some kind of loss) contribute to a common ‘pool’ by paying premiums, which, of course, spreads out that risk. When deciding who to insure, insurance companies make calculations about how likely the risk will materialize for each applicant because, of course, some people are thought to carry a lot more risk than others. Those people who represent a higher risk, based on personal characteristics, will pay a larger premium into the pool or, if they represent too high of a risk, they may be denied coverage entirely. As you can see, discrimination is fundamental to the insurance industry.

In the past, insurance companies have generally discriminated against applicants, particularly for life and health insurance, based on lifestyle choices and medical records. In the future, insurance companies may (and will likely try to) discriminate against applicants based on genetic information.

At some point, in the not-to-distant future, imagine attending your doctor, after completing a ‘genetic test’, and being told that you are genetically predisposed to get cancer, diabetes, or multiple sclerosis; illnesses that, if they don’t lead to your death, will greatly impact your life. This type of technology isn’t that far off. This information would be immensely useful – you could make certain lifestyle choices, doing whatever you could to avoid that illness and, in some cases, cheat death. This information would not just be useful for you – it would be useful for insurance companies, too.

At present, some genetic information can be revealed by amniocentesis, or a urine test, or even by reviewing physical attributes or checking family history. Also, a lot of medical information can be considered genetic. A large number of illnesses or disabilities have genetic components. So, it is not surprising that it is often argued (by you know who) that genetic information does not deserve special treatment. But, I think it deserves special treatment – and I do not think I am alone.

Granted, I am not a doctor; but, the practice of genetic discrimination seems, at least to me, to be unfair as genetic information is merely a precursor to disability/illness and is not reliable. Some gene mutations have ‘incomplete penetrance’, meaning the mutation will be asymptomatic, resulting in no physical disabilities or illnesses. Of course, as time passes, reliability will likely improve. But, aside from that, the mere idea that insurance companies can discriminate against an applicant because they are genetically predisposed to some disability/illness is dehumanizing. The idea of it reminds me of Gattaca, a 1997 science-fiction movie, in which humans are sorted into classes according to the ‘desirability’ of their genetic make-up. Is this the sort of world in which we wish to live?

For a glimpse of what may come, consider Audet v. Industrielle-Alliance, Cie d’Assurance Sur la Vie, [1990] R.R.A. 500-502 (C.S.). In this Quebec case, the insured individual failed to disclose that he carried a genetic mutation associated with myotonic dystrophy, a degenerative disease, which is not always disabling. The insurance company argued, and was successful in arguing, that the genetic information should have been disclosed. In the end, the life-insurance contract was annulled, even though the cause of the insured’s death, an automobile accident, was unrelated to the genetic mutation. In effect, the insurance company was permitted to make distinctions based on genetic information.

So, what is being done about this? Well, the concern for insurance companies using genetic data has been addressed in France, Belgium, Israel, South Korea, Germany, Ireland, and the United Kingdom. In these countries, laws have been made, restricting or preventing the use of genetic information by insurance companies. At present, Canada is lagging behind. But, despite that, strong efforts are being made: various Canadian advisory groups, researchers in law and medicine, and even some insurers are recommending clearer laws on the use of genetic information. Whatever happens, it will be interesting to watch. After all, there have been movies made about this – but let us try to keep this on the big screen, not in our ‘real’ lives.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 

Originally posted on Castanet.net on November 21, 2011: Genetic discrimination on the horizon.

Hit and runs: know your rights

A short time ago, I wrote a column giving you some tips about what to do after being in a car crash. Those tips included 1) taking photographs of the crash; 2) getting witness names and contact information; and 3) getting the contact information of the other drivers involved in the crash.

BUT, what happens if you can’t get the contact information of the driver who caused the crash? What happens if you suffered injuries and the at-fault driver “just drove away”? In other words, what if you are involved in a “HIT AND RUN”?

Well, this is the subject of this week’s column.

 

Here is the law: if you suffer some injuries at the hands of an unidentified motorist, then you may be entitled to some money. “Money” can include an award for “pain and suffering”, for medical treatment, and/or for loss of income. See section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231.

So, how does this work? Well, you obviously can’t directly sue the driver who caused the crash (because they fled the scene, right?). But, you can sue ICBC (so you are not totally out of luck).

But, in order to actually get some money from ICBC, you have to jump over several hurdles.

Among those hurdles, you have to show that you don’t know (and can’t get) the identity of the driver/owner of the other vehicle. This is typically the hardest hurdle to jump over…

So, what does this mean? Well, at a crash scene, you need to do your best to learn the identity of the other driver.

But, let’s assume that the other driver flees the scene right away or you were too injured to get the information. Well, if that occurs, you STILL need to take some serious efforts to learn the identity of the negligent driver. These “efforts” include things like promptly reporting the crash to police and ICBC, canvassing the neighbourhood where the crash occurred, and posting notices/signs at the crash site (pleading for witnesses to come forward). It is common for people to make “insufficient” efforts and have their claims denied.

Another big hurdle is that you need to report the crash to ICBC as soon as you can (and no later than 6 months, at the latest). This allows ICBC to protect itself and “investigate” into the crash, trying to find the identity of the driver.

Another big hurdle is that your credibility needs to be very, VERY good. This sounds easier than it is…

Credibility is a big factor in “hit and run” cases. Often, the only evidence of a “hit and run” is your own words. So, as you can imagine, it is problematic if there are discrepancies in your evidence (i.e. in your statements). For example, if your statement to police is different from your statement to ICBC, then you can have credibility problems. So, be very careful with your words and be very honest.

Now, how much are you entitled to? Well, assuming you can jump over all the hurdles (and there are several), you could receive as much as $200,000.00 for your losses. This may sound like a HUGE amount; but, it may not be (depending on your injuries)…

Lastly, if you are injured in a “hit and run”, I recommend getting some legal advice. There are many hurdles to jump over. And, if you miss one, you could be very sorry later.

And now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on February 12, 2013: Hit and runs: know your rights.