3 Very Important Things To Know Before You Lend Your Car Out

It is common knowledge that if you give someone permission to drive your vehicle, you will likely be held vicariously liable for any property damage or injury they cause while they have it. But did you know that you also cannot loan your vehicle out with conditions, and that you will still be held responsible for any damages caused by that driver?

1.  Vicarious Liability

So, what is vicarious liability? Vicarious liability is a legal idea. It means that you can be held responsible for the actions of a third party. A common example of this in the world of employment. A supervisor may be responsible for the actions of the wrongdoing of their employee. For example, if a construction worker causes property damage while working, the company employing them will very likely be held responsible for the actions of that construction worker, and the ensuing property damage.

2.  Can I be held responsible for the actions of someone I lend my car to?

Vicarious liability can also extend to the world of insurance law as well.

In Alberta, when you give someone permission to drive your vehicle, this permission is unconditional. In other words, you cannot give permission to someone to use your vehicle, as long as they follow certain rules, like returning the car by a certain time or so long as they don’t speed. You also cannot take back that permission when the other person still has the vehicle in their possession. You will still be held responsible for the actions that the person you leant the car to if they cause an accident.

An interesting example of this is Mansour v. Rampersad, a case decided in Alberta in 2022. In that case, Roger Rampersad was given permission to drive a vehicle, so long as the vehicle was returned by a specific time to the owner. However, Roger did not return the car by the deadline, and the car was reported by the owner to the police as stolen. After the car was reported stolen, Roger caused an accident and was sued for the damages. But the owner of the vehicle was sued as well, and the Court found the owner responsible, even though the vehicle was reported stolen.

Both the driver and the owner of the vehicle were held responsible for the damages, and owner’s insurance on the vehicle covered the loss.

3.  Are there any exceptions?

There are very limited exceptions to the rules on vicarious liability. One exception to the rule is if you loan out your vehicle, you can place a condition that this vehicle is only being loaned to that one specific person. In other words, the person borrowing the car cannot later give permission to someone else, simply because they are in possession of that vehicle. For example, if you rent a car, one person might be specified on the rental agreement as the only person allowed to drive that car. That named driver is generally not able to give permission for someone else to drive the rental car.

Another exception is if you give your vehicle to businesses that deal with transporting vehicles or repairing vehicles, such as tow truck operators, valet drivers, detailers, or mechanics. If for example, a mechanic is in an accident while on a test drive for example, typically it will be the mechanic’s specialised garage policy that will cover the loss.

STAGES OF LITIGATION FOR A PERSONAL INJURY CLAIM

There are many paths that can be taken to resolve a personal injury claim. This blog will look at the different stages involved in litigating a personal injury claim, and the different ways in which a settlement can be reached.

Settlement

Sometimes, a personal injury claim can be resolved directly with the insurance company, without the need to involve defence lawyers. Your lawyer may work directly with a representative from the insurance company to negotiate a settlement for your claim on your behalf. If an appropriate settlement is reached, the claim can be settled without any further litigation.

However, not all claims can be resolved in this way, and instead, may require litigation.

Questioning (or Examination for Discovery

Often the first stage of litigation is a proceeding called a Questioning (or an Examination for Discovery). During the questioning, the defence lawyer will ask you questions, under oath, about your case, and a court reporter is present to take a transcript of everything that is said at the Questioning.

The purpose of the Questioning is to learn as much information as possible about your claim. It also allows the lawyers to assess their case and the credibility of the witnesses.

After the questioning, your lawyer will often be required to fulfill “undertakings”. Undertakings often include documents which the defence lawyers would like to see in order to help them in assessing your case. This can include updated medical documentation, income documentation etc.… Your lawyer will need to collect these documents and provide them to the defence lawyers following the Questioning.

At some point after the Questioning has occurred, negotiations may resume, and it is possible that a settlement is reached at this stage.

Alternative Dispute Resolution

If a settlement cannot be reached following the Questioning, a Mediation may be scheduled. A Mediation is overseen by a mediator, who is a neutral third-party, and is there to help the parties come to a resolution.

Another alternative would be a JDR (judicial dispute resolution) which is similar to a mediation, except this proceeding is overseen by a judge, rather than a mediator, and is similar to a “mini trial” in that both parties have the opportunity to present their case to a judge.

If a settlement cannot be reached either at mediation, or afterwards, your file may need to be set for trial. However, personal injury files rarely make it to this stage of litigation in Alberta, as the parties must show good faith attempts to settle prior to being able to schedule a trial date.

Overall, there are many ways to resolve a personal injury claim, and a personal injury lawyer can help guide you through every step of the litigation process needed in order to settle your claim.

Complain Complain Complain

Complaining: It’s Not All Bad

When you are injured in a motor vehicle accident, visiting your doctor regularly to report your symptoms is essential to your recovery. This builds the medical evidence of your injuries, which is vital to a personal injury claim. Seeing the doctor to report your injuries as soon as possible after the accident is crucial, but it is also essential to return to provide status updates. This is especially true if the treatment protocol isn’t addressing your injuries, and you aren’t seeing improvements with time.

Following through with your doctor’s medical recommendations is also key. If your injuries aren’t improving over time, you may be hesitant to return, thinking that they cannot do anything for you or that there is nothing to report. However, this is incorrect. Seeing the doctor when things aren’t improving allows them to suggest alternative treatments, request imaging, or provide referrals to specialists.

Prompt intervention prevents your symptoms from escalating and shows that you are actively mitigating your injuries. Your doctor’s chart notes reflect their objective findings once they examine you, as well as what you subjectively report. Therefore, describing your symptoms and how your injuries affect you provides medical evidence of your ongoing suffering. Recovery takes time. Trusting the process and following up with your doctor ensures you reach maximum medical improvement and maximize compensation for your injuries.

Documenting your injuries begins with noting all your complaints to your doctor and treatment providers. This can be difficult for us as Canadians to accept, as ‘complaining’ has negative connotations and we are socialized to be polite and downplay what bothers us. However, this doesn’t serve your best interests after an accident. Your treatment providers document your complaints, so if they ask how you are doing, resist the urge to reply with an unqualified ‘great.’ Keep the focus on your injuries and why you are there. Instead, respond by telling them whatever injuries have been bothering you lately, and how your symptoms are progressing. Otherwise, your visit won’t truly reflect your pain and suffering.

Comprehensive complaints about your injuries are helpful. Communicating openly and describing your concerns to your medical professionals provides evidence for your personal injury claim, giving them the opportunity to tailor their treatment in response to your changing needs. Complaining is not the same as embellishing or exaggerating. Anything that is different after the accident, whether physically, psychologically, professionally, or personally, is worthy of note so long as it is legitimately impacting you. Do not minimize your injuries for fear of embarrassment, or at the expense of putting on a brave face to maintain a tough persona.

Even after you have recovered, see your doctor to report that your injuries have resolved or when they have subsided. The next time you see your doctor for another matter, feel free to give them an update on your accident injuries. This provides a clean slate for anything that might occur in the future. If you are in a second accident, a note in your doctor’s records that your injuries had resolved or were minimally bothersome at a certain date will go a long way towards any future claim. This helps avoid the argument that your injuries are due to the first accident. In the absence of clear medical evidence, even after a significant amount of time it can still be an uphill battle to prove that your prior injuries had resolved or were not a factor in any subsequent accidents.

Your recovery demands more than just immediate medical attention – it requires ongoing care and commitment. Reporting when your complaints have resolved is important to establish a baseline for the sake of any future injuries. Distinguishing between those which are brand new, aggravated, or reactivated also demonstrates the impact of each individual accident. This ensures you receive maximum compensation for your claim, as well as any future claim.

Mitigating Your Losses After an Accident

The concept of mitigation is closely related to managing risk and personal responsibility. It is frequently described by the phrases ‘mitigating your losses’ or someone having a ‘duty to mitigate.’ While mitigation is a legal concept, it is rooted in everyday personal responsibility for lessening your losses. Mitigating your losses simply refers to taking reasonable steps after suffering a loss to decrease the impact of that loss. This guards against it getting worse in the future. For example, if you got a cut, you would clean and bandage it instead of bleeding out.

Mitigation through Treatment

In the context of a personal injury claim from a motor vehicle accident, your losses are your pain and suffering from your injuries which form your general damages. If you were in an accident which was caused by another driver’s negligence, in law they are responsible for your injuries. However, you are responsible for reasonably treating your injuries by attending treatments and going to the doctor to provide updates on your recovery. This helps identify ongoing issues for further follow-ups.

Treatments like physiotherapy, chiropractic, and massage therapy help you heal from your injuries and manage your symptoms. By regularly attending treatments you are aiding your recovery and mitigating your losses by minimizing their ongoing effect. This helps prevent further complications from your injuries in the future.

Taking Time to Treat

Some of your injuries may not respond well to treatment or resolve fully despite your best efforts at mitigating. It is important to see your doctor regularly so they can make further recommendations and any referrals for specialists or imaging to see which treatments do work. For the sake of both your recovery and personal injury claim, it is important that you follow through.

While the saying goes that time may heal all wounds, relying on time alone instead of consistent treatment means that you are responsible for any continued suffering, at least in the eyes of the other side’s insurance company. If they can prove a lack of mitigation on your part, they could use this as a partial defense to avoid paying for the full extent of your general damages from the accident.

Effect on Damages

Failing to mitigate your losses and not attending treatments is considered during negotiations when reaching a settlement. If you are still suffering from your injuries and have chronic pain that is resistant to treatment despite consistently attending physiotherapy, consulting specialists, and seeing your doctor, the implication is that your injuries deserve a greater award than someone who also has ongoing pain but stopped treating after a few months. If you have been discharged by your treatment provider but are still experiencing pain or experience a flare up, returning to treatment shows you are fulfilling your duty to mitigate.

If there is a mitigation issue and you did not act reasonably while treating your injuries, your damages will be reduced because you could have avoided the full extent of your loss. The other driver who caused the accident would not be held responsible for your own failure to mitigate, and you would not receive the full damages award you would have otherwise received.

If you have been in an accident, an experienced personal injury lawyer can help guide your recovery to ensure you mitigate your losses and receive maximum compensation for your injuries.

 

 

Alberta Health’s right to recover cost of care in certain situations

Alberta Health can recover cost of care from the wrongdoer if they injury a person

What is the Crown’s Right of Recovery?

 It may come as a surprise to many, but in certain situations, the Alberta government can sue you for healthcare costs. An example of this would be when someone suffers injuries as a result of somebody else’s wrongdoing (e.g., slips and falls, social host liability, dog bites, assaults). In this case, the government may sue the at-fault party to recover the healthcare costs of treating the injured person. In Alberta, it is the Crown’s Right of Recovery Act that gives the government or “Crown,” the right to recover healthcare costs. Recoverable healthcare costs include, but not limited to:

 

  • Hospital Services (in-patient and out-patient)
  • Ambulance Services (air and ground)
  • Drug costs
  • Mental health costs
  • Home care
  • Future cost of healthcare
  • Services provided under the Alberta Healthcare Insurance Act

Does the Crown’s Right of Recovery apply to Motor Vehicle Accidents?

In many cases of motor vehicle accidents, the Alberta government will not be able to recover health service-associated costs. The legislation states that the government will not have a claim to recover health service costs for motor vehicle accidents if:

 

  • The personal injuries are caused by the wrongdoer’s operation of a vehicle,
  • The wrongdoer is insured under a “motor vehicle liability” policy,
  • The policy covers the injured parties’ injuries, and
  • The insurer is licenced in Alberta and contributed to the aggregate assessment in the year of the accident, in accordance with division 2 of the legislation.

If any of the above are not satisfied, the government will have a claim to recover the costs of health services provided. The Crown’s right to recover cost may also exist in vehicle accidents involving out-of-province insurance companies and against other defendants not insured under the vehicles’ liability policy.

Duty to notify the Crown

The legislation imposes certain obligations on insurance companies and injured parties. One of these obligations requires insurance companies, and injured parties who receive treatment, to notify the government of a potential claim against an at-fault party.  Insurance companies must notify the government as soon as they learn about a situation, in which the government may have a claim to recover health care costs. An injured party must give notice if they or someone on their behalf talks to a lawyer about injuries they suffered. The injured party must also fully cooperate with the government in their claim against the at-fault party for healthcare costs. If the injured party fails to cooperate, the government may pursue a claim against them for the costs.

How does the Crown pursue a claim?

 The legislation gives the government two main methods to recover healthcare costs from the at-fault party. The government may file its own lawsuit against the wrongdoer to recover the costs they spent treating the injured party. Alternatively, the government can join a lawsuit that the injured party may have launched against the at-fault party. In this case, the government would simply request the injured party or their lawyer to add the healthcare costs claim to their lawsuit. Since the injured party must cooperate, they can either allow the government to join the lawsuit or potentially be personally liable for the healthcare costs.

 

 

 

Will my personal injury settlement have any impact on my AISH benefits?

Navigating the recovery process after being injured in an accident can be daunting on its own, and you may have additional considerations if you are also receiving AISH benefits. It is important to know and consider how a personal injury pay out can affect your financial situation if you are receiving AISH.

What are the eligibility requirements for AISH?

Assured income for the Severely Handicapped (AISH), is a government program which provides financial as well as health benefits to those with permanent medical conditions, if the medical conditions prevent someone from being able to support themselves.

There are certain eligibility criteria in order to qualify and continue to receive AISH. Typically, your eligibility is determined based on you and your spouse’s income, as well as any assets that you may have. The total value of your assets cannot exceed $100,000.

Certain forms of income and assets are considered exempt when considering eligibility. These exemptions include but are not limited to income tax refunds, or disability savings plan (RDSP) payments.  Other forms of income and assets, however are considered non exempt. A settlement can be an asset which is considered non-exempt, and is counted when it comes to eligibility.

Temporary Asset Exemption

You have 365 days to invest money that is not considered income into an exempted asset, otherwise, the money will be considered non exempt. An option for a client who is receiving AISH and receives a personal injury settlement would be looking into a structured settlement. A structured settlement is when the settlement is paid out regularly, over a period of time. Typically, the payments are once a month.  A structured settlement may be a good option because it is exempt by AISH. Another option could be investing the money into a trust or a Registered Disability Savings Plan, or another exempt asset.

What should I do if I receive a settlement for my personal injuries?

You remain responsible for reporting any changes to your financial or medical situation. If you receive a settlement, it is important to report your settlement to your AISH caseworker. Your settlement pay out may impact your eligibility for AISH, and your caseworker is also typically in the best position to be able to determine this for you.