It will explain:
- Alberta’s system of car insurance, including what the mandatory coverage is
- How to go about suing an at-fault driver for compensation to cover your personal injuries.
Mandatory / Minimum Insurance Coverage
In Alberta the mandatory coverage that all insurance companies are required to provide consists of two categories: Third Party Liability and Accident Benefits. The information below refers to the minimum coverage that all drivers must carry. In many cases, drivers chose to purchase enhanced policies, which provide more coverage and benefits. If you are injured in a car accident, you should enquire whether your policy or the policy of the other party involved includes additional coverage.
Third Party Liability
Third Party Liability may cover you (or anyone driving your car with your permission), if you were the at-fault driver in a car accident causing injuries to another person (or people) or property damage. Under Third Party Liability coverage, your insurance company will defend you in any lawsuit brought against you and pay any award made against you by a court. Your insurance company can also pay an amount to settle your case out of court. The amount your insurance company will pay out on your behalf is subject to the limit provided in your specific policy.
In Alberta, the minimum coverage for Third Party Liability is $200,000 per accident but many drivers purchase increased coverage, which provides #1 million in Third Party Liability. Under the minimum coverage, if a claim involves bodily injury and property damage, the portion allotted to property damage will be capped at $10,000.
Accident Benefits may cover you and your passengers for a portion of the expenses incurred or financial losses sustained because of a car accident, regardless of who is at fault. In Alberta, these benefits include:
- Medical and Rehabilitation Expenses – This benefit may cover you for diagnostic testing, medical services, surgical services, chiropractic services, dental services, acupuncture services, professional nursing services, psychological therapy, physical therapy, occupational therapy, and hospital/ambulatory services. Under the minimum coverage, most expenses are limited to $50,000 per person and a maximum of two years. The maximum for chiropractic services is $750 per person. The maximum for massage therapy is $250 per person. The maximum for acupuncture is $250 per person.
- Income Replacement – If you were employed at the time of your accident or worked for six of the twelve months prior to the accident, you may be entitled to this benefit. This benefit may pay 80% your gross weekly wages up to a maximum of $400 per week. The benefit can be paid for up to 104 weeks if you are totally disabled and there is a one week waiting period before funds are released. If you were not employed at the time of the accident, you may qualify for the “non-earner benefit,” which applies to people 18 years of age or older and pays up to $135 per week, for a maximum of 26 weeks.
- Funeral and Grief Counselling Expenses – The maximum amount payable to cover the expenses of a funeral is $5,000. The maximum amount payable to cover the costs of grief counselling is $400.00.
- Death Benefits – The amount payable depends on the deceased’s age and position in the household. The following is a synopsis of the various benefits that may be available.
|Age of Deceased at Age of Accident||Deceased as Head of Household*||Deceased as Spouse / Adult Interdependent Partner||Deceased as Dependant Relative†|
|Up to age of 4 years||-||-||$1,000|
|5 to 9 years of age||-||-||$2,000|
|10 to 17 years of age||$10,000||$10,000||$3,000|
|18 to 64 years of age||$10,000||$10,000||$2,000|
|65 to 69 years of age||$10,000||$10,000||$2,000|
|70 years of age and older||$10,000||$10,000||$2,000|
Where there is a spouse/adult interdependent partner or a surviving dependant relative living in the household, the Death Benefit is increased by $15,000 for the first spouse/adult interdependent partner or surviving dependant relative and by a subsequent $4,000 for each of the remaining survivors.
r * “Head of household” refers to the member of the household with the largest income in the year preceding the date of the accident. † “Dependant relative” refers to:
(a) a person under the age of 18 years for whose support the head of the household or the spouse/adult interdependent partner of the head of the household (or both) is legally liable and who is dependent upon either or both of them for financial support; or
(b) a person 18 years of age or older and residing in the same premises as the head of the household, who because of mental or physical infirmity, is principally dependent on the head of the household or his or her spouse/adult interdependent partner or both of them for financial support.
- Uninsured Motorist Coverage – This benefit may enable you to collect compensation from your insurance company when the other party in your accident does not have insurance or cannot be identified. Generally, the benefit covers losses that would have been compensated by the other party’s insurance company had s/he been insured. If you were involved in a car accident with an uninsured or unknown driver, visit the website of the Motor Vehicle Accident Claims Program for more information.
Suing an At-Fault Driver for Compensation to Cover your Personal Injuries
If your injury was caused by the negligence of another driver, you may consider suing that driver for damages (awards of money granted by a court). Because all drivers are required by law to have liability insurance, when you sue an at-fault driver, that driver will be defended by his or her insurance company. If you are successful, the at-fault driver’s insurance company will pay the amount of damages awarded by a court, or negotiated in settlement discussions, to the maximum amount provided in his or her insurance policy. The overwhelming majority of lawsuits in personal injury cases stemming from car accidents are settled out of court.
The Meaning of Negligence
The law of negligence can be complicated. Each case will proceed on its own facts and circumstances but generally, in order to be successful in claiming someone was negligent, you must demonstrate:
- That the defendant owed you a “duty of care.” Generally speaking, drivers have a duty of care to drive safely and according to applicable traffic laws, etc.
- That the defendant breached the “standard of care” applicable in the specific circumstance of your case. Generally, courts will want to know if the defendant’s conduct fell below the standard of a reasonable person in a similar situation. For example, it might be found that a reasonable person would not have tailgated you relentlessly for a long period of time, as the defendant did.
- That the breach of the standard of care explained above is what caused your injuries. This requires that you have injuries in the first place. Generally, courts will employ the “but-for test.” According to the “but-for test,” if your injuries would not have been sustained but for the defendant’s breach, causation is made out.
- The defendant was not too remote from you when the damage was caused. In other words, if there was a chain of events that lead to your injuries, the defendant cannot be too remote from you on that chain.
- Finally, your conduct when the accident occurred may affect the right to recover damages.
o If you negligently contributed to the loss (this is known as “contributory negligence”), the defendant will only be responsible for the damages attributable to his or her portion of responsibility. For example, if you fell asleep while driving, you may have contributed to your injuries and the driver that hit you may only be responsible for a portion of the damages;
o If you indicated a waiver of responsibility for the risk of participating in the activity that brought about the accident (this is known as “voluntary assumption of risk”), you may not be entitled to damages. For example, if you knew the car you were driving had faulty brakes but you chose to drive it anyway, you may have voluntarily assumed the risk of driving that car; and
o If you were carrying out an illegal activity when the accident occurred (this is known as “ex turpi causa”), you may not be entitled to damages. For example, if you were hit by another car during your getaway from robbing a bank, it’s not likely that the law will reward you.
Time Limit for Starting the Lawsuit
If you were in a car accident in Alberta, you generally have two years to sue. There are circumstances, however, when this limitation period can be extended. In order to be certain regarding your right to sue, it is recommended that you speak to a lawyer.
Types of Damages
Damages are categorized into “pecuniary damages” and “non-pecuniary damages.”
“Pecuniary damages” or “special damages” refer to awards of money that a court makes to compensate the plaintiffs for economic losses sustained because of the wrong committed by another. These damages can also be awarded to enable you to pay for things that you would have had done if you weren’t in the accident, like housekeeping for example.
“Non-pecuniary” or “general damages” are awarded for non-economic losses like pain and suffering. In 1978, the Supreme Court of Canada capped awards of for pain and suffering at $100,000. The upper limit is usually only available for the most catastrophic injuries. This amount was indexed to inflation so that today, the amount is approximately $330,000. In Alberta, the maximum amount of general damages recoverable for all minor personal injuries is $4,641. “Minor” means sprains, strains and Whiplash Associated Disorder. This amount is also indexed to inflation, which means it will vary slightly from year to year.
If you believe that the at-fault driver who caused your injuries acted negligently and you decide to sue, you can be compensated for:
- General or non-pecuniary damages for pain and suffering;
- Past and future income loss;
- Future medical and rehabilitation expenses;
- Housekeeping and home maintenance expenses; and
- Special damages for out-of-pockets expenses incurred as a result of the accident and impairment.
Courts will take a number of factors into consideration when awarding damages. These factors include, among others, your age and the specific injury sustained. Inquiries will be made regarding the severity of your injury, chances for recovery, how long it will take to recover and the required medical treatment. Whether you had any injuries before the accident or medical problems that might add to your injuries is also important. Equally important is your employment if you are unable to work as a result of the accident. The courts will attempt to quantify how much money you are reasonably expected to lose (or spend) as a result of being unable to work because of the accident.
Fatal Accidents Act
In Alberta, the courts can grant monetary relief to surviving family members of people killed in car accidents for the grief and loss of companionship suffered by the family. This is referred to as “bereavement damages” and because all drivers are required to carry valid insurance policies, these damages are usually paid by insurance companies. Section 8 of the Fatal Accidents Act allows spouses, parents and children of the deceased to sue the wrongdoer for such bereavement damages.
If a claim for bereavement damages is made out, courts can award:
(a) $75,000 to the spouse or adult interdependent partner of the deceased person. This will not be awarded if the spouse or adult interdependent partner was living separate and apart from the deceased person at the time of death.
(b) $75,000 to the parent of the deceased person, which is divided equally if the action is brought for the benefit of both parents, and
(c) $45,000 to each child of the deceased person.
Recent Damages Awarded in BC Courts
In the 2011 case of Chokka v. Hanson, the plaintiff was struck by a police officer who was responding to an armed robbery and driving against a red light. The Court decided that the officer “was not driving with due regard to the circumstances and was not driving in a reasonable and prudent manner at the time.” The plaintiff sustained injuries to her shoulder, neck and back and sued for general damages and compensation for loss of income. In a strange set of circumstances, the doctors that testified did not evaluate her until ten years after the accident. Nevertheless, the court attributed 1.5 years of lost income to the accident (finding that she had pre-existing injuries) and awarded $30,000 in damages accordingly. The plaintiff was also awarded $30,000 in general damages.
In the 2012 case of Chisholm v. Lindsay, the plaintiff was injured while sitting in a parked car when the defendant rear-ended her. The plaintiff was then in another accident some five years later. The plaintiff sued the driver of the first accident for her injuries and that driver claimed that her injuries were the either the result of the second accident or other life stresses. The judge found that the plaintiff sustained Temporomandibular joint disorder, injuries to her knee, chronic pain and developed cognitive difficulties a result of the first car accident.
The plaintiff was awarded the following:
- $90,000 in general damages;
- $4,250 in damages for past loss of housekeeping and $30,000 in damages for future loss of housekeeping services;
- $45,000 in damages for costs of future care; and
- $125,000 for loss of earning capacity (loss of future income).
The information provided on this website is for educational purposes only and should not be construed or relied on as legal advice. The providers of this website do not guarantee that the information provided in it is accurate or up to date. If you require legal advice, you should seek the services of a qualified personal injury or insurance lawyer.
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