Personal Injury Studies 201 Desk Reference Manual

Transcription

1 Desk Reference Manual

2 "All rights reserved. No part of this publication may be reproduced, stored in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use or this publication) without the written permission of Law Courts Center (phone: or except in accordance with the provisions of the Copyright Act." The Desk Reference Manuals have been prepared by the Law Court Center staff for use by lawyers and for legal assistants and secretaries under the supervision of lawyers.. Every reasonable effort has been made to ensure the accuracy of the information contained in the Manuals. That said, you should look to all applicable Statutes, Regulations, Rules, Notices to the Profession and Practice Directions for guidance. The authors, editors and lecturers of the Law Court Center accept no responsibility for any errors, omissions and inaccuracies in this Manual. Canadian Cataloguing in Publicaton Data Bautista, Dom 1959 Case, Linda, 1949 Gibbard, Brian 1954 ISBN x Includes index 1. Personal Injuries British Columbia, 1. Title The Law Courts Center Legal Education Programs are designed to provide the legal profession with courses that increase their general professional competence, keep abreast of developments in the law, and become more proficient in selected areas of practice. Copyright June 2013 Published and Distributed by Law Courts Center Howe Street Vancouver B.C. Canada V6Z 2L2 To Order: Call: Write: Law Courts Center Legal Education Program

3 Introduction Introduction In this manual, we will study the various requirements for handling an infant plaintiff action, including the special requirements for commencing and defending an action, the role of the Public Guardian and Trustee, and the various procedural and documentary requirements regarding settlement. We will also discuss who various defendants might be, including the more common circumstances when ICBC is named as a nominal defendant, along with an explanation of what the various defences mean, including the common defence of contributory negligence. In the final section, we will look at motor vehicle accident dynamics which will focus on the movement of a vehicle through the various accident types along with the movement of a body and the injuries we commonly see. i

4 Section A Table of Contents Section A Infant Claims Introduction A.1 General Information A.2 Appointment of Litigation Guardian A.3 Obtaining Public Trustee Approval A.4 Representation by a Litigation Guardian A.5 Adverse in Interest A.6 Style of Cause for an Infant Plaintiff A.7 Limitation Period A.10 A1 Settlement of Infant Claims A.11 A1.1 No action commenced settlement under $50,000 A.12 A1.2 Action commenced - settlement under $50,000 A.13 A1.3 No Action commenced - settlement over $50,000 A.14 A1.4 Action commenced - settlement over $50,000 A.15 A1.5 PGT Fees A.16 A1.6 Receipt and Payment of Funds A.17 A2 Family Compensation Claims Potential Claims A.18 Definition of a Parent A.19 Definition of a Spouse A.20 Personal Representative Commences Action A.21 Limitation Period to Commence an FCA Claim A.22 Court Ordered Interest A.23 Public Guardian and Trustee s Statutory Comment A.24 Deductability A.25 i.1

5 Section A Table of Contents (continued) A2.1 Part 7 Benefits - Claim of Estate of Deceased A.27 Death Benefits A.27 Funeral Expenses A.28 Lump Sum Payments A.29 Definitions A.30 Appendix for Section A Infant Claims Appendix A1 Request for Approval of Settlement with the PGT A.32 Appendix A2 Consent of Litigation Guardian to Act A.34 Appendix A3 Consent of Litigation Guardian To Use A.35 Name in Proceeding Appendix A4 Certificate of Fitness A.36 Appendix A5 Affidavit of Attainment of Majority (Form 78) A.37 Appendix A6 Notice to Proceed A.38 Appendix A7 Letter to Plaintiff Counsel and the A.39 Public Guardian Service Notice to Proceed Appendix A8 Consent Order (Infant settlement under $50,000) A.40 Appendix A9 Settlement Agreement (under $50,000) A.42 Appendix A10 Requisition to accompany draft Consent Order A.45 (Notice of Civil Claim filed, settlement under $50,000) Appendix A11 Order - Infant Settlement Over $50,000 A.47 No Action Commenced Appendix A12 Submission Letter of Infant Settlement by A.49 Plaintiff s Counsel to Public Guardian and Trustee Appendix A13 Checklist for Submission by Plaintiff s Counsel A.55 Appendix A14 Order - Infant Settlement Over $50,000 A.58 Action Commenced Appendix A15 PGT Child / Parent / Guardian Questionnaire - A.60 Review of Infant Settlement Appendix A16 PGT Head Injury Symptoms Form A.63 Appendix A17 Answers to Definition of Spouse A.64 i.2

6 Section A Table of Contents (continued) Section B Potential Defendants Introduction B.1 B1 General Considerations B.2 B1.1 Identifying Defendants After the Start of a Lawsuit B.3 B1.2 ICBC as a Third Party B.4 B1.3 Passenger as a Potential Defendant B.5 B1.4 Litigation Guardian Required B.6 B1.5 Other Insurance Policies B.7 B1.6 Unnamed Defendants B.8 B1.7 Negligence Act B.9 B2 Unidentified Motorists Insurance (Motor Vehicle) Act, s.24 B.10 B2.1 Preliminary Considerations B.11 B2.2 Practice Tips B.12 B2.3 Requirements of Notice B.14 B2.4 Investigation of Identities B.15 B2.5 Reasonable Efforts B.16 B2.6 Reasonable Steps Not Taken B.17 B2.7 Proof B.18 B3 Municipalities and Construction Companies B.20 B4 Deceased Defendants B.21 B5 Ministry of Transportation & Highways and Maintenance Contractors B.22 B6 Construction Companies B.23 B7 Manufacturers B.24 B8 Vehicle Repairers B.25 B9 Night Clubs / Bars and Private Parties B.26 Appendix B1 Unidentified Motorists Notice of Civil Claims B.27 Appendix B2 Unidentified Motorists Response to Civil Claims B.28 i.3

7 Section A Table of Contents (continued) Section C Defences Introduction C.1 C1 Contributory Negligence C.2 C1.1 Impaired Drivers and Willing Passengers C.3 C1.2 Seat Belts C.4 C1.3 Failing to Properly Adjust a Headrest C.5 C1.4 Helmets & Protective Gear C.6 C1.5 Failure to Folow Medical Advice C.7 C2 Absolute Defences C.8 C2.1 Volenti Non Fit Injuria C.9 C2.2 Ex Turpi Caussa Non Oritur Actio C.10 C2.3 Insanity C.11 C2.4 Inevitable Accident C.12 C2.5 Last Chance Doctrine C.14 C2.6 Workers Compensation Claim C.16 C3 Limitation Act C.16 Appendix C1 Response from WCB - Determination of Worker C.17 i.4

8 Section B Table of Contents (continued) Section D Motor Vehicle Accident Dynamics Introduction D.1 D1 Types of Accidents D.2 Side (the T-bone impact) D.3 Rear-end Collision D.4 Side Swipe D.5 Corner Strike Impact D.6 Rollover Accident D.7 D2 Expected Injuries D.8 D2.1 Body Movement in a Rear Impact D.9 D2.2 Whiplash Injuries The Medicine of Whiplash Injuries D.10 Injury Review D.11 D2.3 Concussions or Mild Traumatic Brain Injuries D.12 D2.4 Shoulder and Its Injuries D.13 Fractures to Bones and Joins of the Shoulder D.14 Soft Tissue, Muscle and Ligament Damage to the Shoulder D.15 Separation of Acromioclavicular (A/C) Joint D.16 Grades of Shoulder Joint Injuries D.17 D2.5 Rotator Cuff and Thoracic Outlet Injuries D.18 D2.6 Thoracic Outlet Syndrome D.19 Section E Health Care Costs Recovery Act Health Care Costs Recovery Act E.1 i.5

9 Section A This page is for your notes. i.6

10 Law Courts Center Desk Reference Manual Price List.xls Current to: 6/17/13 Title Code Last Updated Price BC Civil Litigation Guide v9.0 BCCLG Bills of Costs 101 BOC Business Corporations Act 101 BCA Case Planning Procedures CAP Chambers Application Procedures CHA Civil Litigation 102 CIV Clinical Records 101 CRS 101 Conveyancing 101 CON Discovery Procedures 101 DIS Document Disclosure 101 Drafting Applications Workbook DOD 101 DAW Family Chambers Applications Procedures 101 FCAP Family Law 102 Fast Track Litigation FAM 102 FTL Heads of Damages 101 HOD Law Office Management 101 LOM List of Documents 201 Managing MVA Files 103 LOD 201 MVA Part 7 Benefits 101 P7B Personal Injury Book of Letters PIBL Pleadings 101 PIS 201 PLE PST & GST FAQs for BC Law Firms Return to GST for BC Law Firms Recorded Lecture GST 102v Recording Trial Preparation for Defence Firms TPD Trial Preparation for Family Law 101 Trial Preparation for Plaintiff Firms TPF 101 TPP Trust Accounting 101 TRA Trust Assurance Management Recorded Lecture TAM Handling 10v Unclaimed Trust 125 Funds Trust Assurance Management Recorded Lecture Tam Trust 102vAccounting Internal 125 Controls Trust Assurance Seminar Recording TAS 102v