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Workers’ compensation is a no fault system. This means that workers injured in the course of their employment get compensation benefits whether or not they are at fault, or whether or not their employer is at fault. Lawsuits for injuries are different from compensation and require that the person being sued is at fault.
Workers’ compensation benefits have been provided in B.C. since 1917 when the Workers Compensation Act (“the Act”) was created. The benefits are available to workers who are disabled by injury or occupational disease caused by their work. The benefits are also available to surviving dependants of workers who are killed by injury or occupational disease caused by their work. Most of these workers or dependants cannot successfully sue their employer or anyone else but can receive compensation benefits. Some of these workers are able to sue someone else and have a choice between suing or claiming workers’ compensation. These options are discussed in the next section. For convenience, we will usually refer to injury as that is the most common situation. However, the discussion applies to injury, death and occupational disease claims equally, except where specifically noted.
Accidents which might result in a lawsuit include motor vehicle accidents, assaults, defective products such as tainted food, tainted blood, or faulty equipment, plane crashes, helicopter crashes, slips and falls, dog bites, or other situations where someone is at fault who is not a B.C. worker or employer in the course of employment.
A worker injured in the course of employment cannot sue his or her employer, any other employer, or any worker who is a part of the B.C. workers’ compensation system and whose activities relating to the accident or disease also arose out of and in the course of employment. For example, if your co-worker accidentally bumps into you with a forklift with broken headlights that your employer had not repaired you can claim workers’ compensation, but you cannot sue (see Section 10 (1) of the Workers Compensation Act).
The Workers Compensation Act replaces lawsuits against employers and workers in a British Columbia workplace for injury, disease, or death caused to a worker acting in the course of employment. Compensation is provided without needing to establish that someone else was at fault for the accident.
Sometimes the person causing the accident or disease is not a B.C. worker or employer. For example that person may be a tourist, a non-working shopper, or a worker who is not working or not part of the B.C. compensation system. Since these people are not workers or not working, they can be sued. Other examples are cases where a product, such as asbestos, an airplane, or a helicopter, are manufactured outside of B.C. and there is a design or manufacturing defect. Since the manufacturer is not a B.C. employer, the manufacturer can be sued by a B.C. worker injured by their product.
Sometimes the person causing the injury is a B.C. worker or employer but they were not acting in the course of employment. Examples are employers or workers who are travelling for personal reasons, not work reasons, or individuals who have taken themselves out of the course of employment by being the aggressor in an assault. Since these individuals are not in the course of their employment at the time of the accident, they can be sued if they injure a worker who is in the course of employment.
Some of these issues are specifically discussed in relation to asbestos-related disease. For victims of asbestos-related disease and death, it is recommended that you review both this web page and the relevant letter re asbestos:
Where there is no lawsuit
If the injury was caused by an accident where nobody is at fault or the only person who is at fault is another B.C. worker or employer in the course of employment you do not have the choice of suing. In that case you can choose whether you want to claim and receive workers’ compensation benefits or want to rely instead on your personal sources of income or disability coverage. Or, you may have your own personal reasons why you do not want to claim compensation benefits.
Where there is the possibility of independently pursuing a lawsuit
Some workers have a choice between pursuing a lawsuit themselves or claiming workers’ compensation and transferring the lawsuit to WorkSafeBC.
If you are a worker who is injured in one of the circumstances described above (in the section titled “Can I sue the person who caused the injury or death?”) and there is a person who can be sued, then you are given a choice:
If you choose to claim workers’ compensation benefits and the claim is allowed, you receive those benefits and WorkSafeBC takes over your right to sue.
If you choose not to claim compensation and, instead, pursue the lawsuit with a lawyer of your choice, no workers’ compensation benefits are paid and you are responsible for pursuing the lawsuit.
The choice made is known as an “election” (see section 10(2) of the Workers Compensation Act). In cases where WorkSafeBC thinks there might be a possible lawsuit, a letter will be sent to you informing you about this election, and about the option of claiming at the end of the lawsuit. (See “What happens if I don’t claim compensation”.)
If the claim is denied because WorkSafeBC decides you were not a worker or the injuries did not arise out of the employment, then no benefits are paid, WorkSafeBC does not take over your legal rights, and you are free to consult a lawyer about your legal rights.
Time limit for making a decision
The Act says you have three months from the date of injury to decide whether you are claiming workers’ compensation or pursuing your own lawsuit. If you wish to claim workers’ compensation benefits you may want to decide sooner because no benefits will be adjudicated or paid until you make your decision and tell WorkSafeBC.
If more than three months have passed, WorkSafeBC may be able to give you more time to decide. If you need more time, WorkSafeBC will require additional information in order to give it to you. WorkSafeBC needs to make sure that the lawsuit has not been prejudiced in the meantime. The additional information includes
Can I change my mind?
The Act does not allow you (the worker) to change your mind once you make the decision. If you chose to pursue your own lawsuit, then you are not entitled to receive workers’ compensation benefits until the lawsuit is settled or decided in court. See “What Happens if I don’t claim compensation?”
If you chose to claim workers’ compensation, then you cannot settle with the insurance company on your own nor hire your own lawyer. A lawyer chosen by WorkSafeBC will conduct the settlement negotiations or pursue the lawsuit.
In some cases, WorkSafeBC will agree to a different result but that is WorkSafeBC’s decision to make and you will need to discuss it with a lawyer in WorkSafeBC’s Legal Department.
If you choose to claim compensation, the first step is to indicate this on the Election to Claim Compensation in British Columbia form. The first priority for WorkSafeBC is to get your claim started, determine whether or not you were injured in the course of employment, and — if you are eligible — pay your benefits and ensure that treatment is in place.
Your workers’ compensation claim will be adjudicated and, if allowed, paid by WorkSafeBC.
The legal case will be referred to WorkSafeBC’s Legal Services and reviewed by a lawyer employed by or hired by WorkSafeBC. Legal Services will contact you to discuss whether or not a lawsuit should be pursued.
If Legal Services pursues the lawsuit
If Legal Services pursues the lawsuit, you will need to provide detailed information about:
It will be necessary for you and the WorkSafeBC lawyer to work closely together and for the lawyer to understand your personal circumstances.
In the case of a lawsuit for the death of a worker, the person claiming must be a surviving dependent family member and the information required will be:
That information will be used to prepare the claim against the person causing your injuries, to prepare the legal documents for the lawsuit, and to prepare for any negotiations or court hearings in the lawsuit.
You will be consulted about settlement negotiations and will participate in the formal parts of the lawsuit, such as a trial. From any settlement or court judgment, WorkSafeBC will recover the costs of the benefits paid on your claim and an administration fee (see the hypothetical comparisons). Any additional amounts recovered in the lawsuit over and above the compensation entitlements on your claim are known as the “excess” and will be paid to you or your surviving dependants.
If Legal Services does not pursue a lawsuit
If Legal Services does not think a lawsuit should be pursued, then that will be discussed with you including the possibility of you pursuing the lawsuit yourself. The steps taken in the lawsuit and whether or not to settle it will be discussed with you but the final decision about whether to pursue a lawsuit or settle it is given to WorkSafeBC,(see Section 10(6) of the Workers Compensation Act). If you and WorkSafeBC cannot agree about those matters, WorkSafeBC will work with you to achieve the best result, but has the final say in the case.
To compare the components of a compensation claim with the components of a lawsuit, please refer to the Claim Components document.
If you don’t claim compensation you don’t receive it. If you choose to pursue a lawsuit, you are responsible for arranging this, deciding which lawyer to hire, and what the terms of the hiring are. With the advice of your lawyer, you decide what steps to take in the lawsuit and whether or not to settle.
The lawsuit might be less successful than you hope because the court decides that fault for the accident should be shared, or the available insurance limits are smaller than your claim, or the amount of money awarded by a court is less than you expected. It is possible that the lawsuit will result in a smaller monetary award than the workers’ compensation benefits you would have received if you chose to claim workers’ compensation.
If the lawsuit is not as successful as you hoped and you get less than you would have been paid in workers’ compensation benefits, there is the possibility of receiving the additional compensation benefits. To obtain the additional compensation, you must have filed a signed Application for Compensation and Report of Injury or Occupational Disease (Form 6) with WorkSafeBC within one year of the accident. You can file the form to meet the time limits, but advise WorkSafeBC that you are pursuing the lawsuit privately (see “what is a provisional claim” below). An out-of-court settlement must be approved in writing by WorkSafeBC before the settlement is concluded if you want to apply for additional benefits. It is important to ask for WorkSafeBC approval before concluding your settlement. Otherwise, if WorkSafeBC does not approve the settlement you will not be able to adjust or change the settlement to maximize your recovery. If the lawsuit is concluded by a judgment of the court, as opposed to a settlement, then there is no need for prior approval from WorkSafeBC. See also Section 10(5) of the Workers Compensation Act.
In a lawsuit for personal injury, the claim will be in specific categories depending on how the injury affected you (the worker). Categories include:
Expenses include treatment expenses and rehabilitation expenses. Income loss and expenses are usually arithmetical calculations of the wages lost and invoices for expenses. Some cases require actuarial calculations and other expert evidence where the calculations are more complex.
In addition, there are non-arithmetic categories such as pain and suffering, restriction of activities, loss of enjoyment of life and others which are categorized as general damages. The claim is based on you and your injuries and will be the same whether made by Legal Services or your own lawyer.
If you choose to pursue the lawsuit on your own then you will be responsible for the costs of the lawsuit. You will need to pay (a) whatever legal fees you agree to with your lawyer, and (b) the specific expenses of running a lawsuit as agreed to with your lawyer.
If the lawsuit is unsuccessful you may also have to pay part or all of the legal expenses, fees, and costs of the person you are suing.
If you claim compensation, then WorkSafeBC pays the costs of proceeding with a lawsuit. If the lawsuit is unsuccessful there will be no cost to you. If the lawsuit is successful there will be recovery of (a) specific expenses, and (b) a scheduled amount for legal costs. These items become a part of the total recovery, which is discussed in “Re: Excess” below.
What is a class action lawsuit?
A class action lawsuit can occur when many people are injured by the same cause or situation. Most lawsuits for asbestos-related disease or death are conducted as class actions. Class actions might result from a single accident such as a plane crash or chemical spill where numerous people are injured.
One purpose of class actions is to conduct a single trial on the common issues, such as whose fault the accident is, rather than have multiple trials. Another purpose is to have a group of people share the cost of pursuing a lawsuit rather than one person having all of that cost when others will benefit.
Class actions are usually publicized so that any person who was injured in the accident or by the product has an opportunity to join the class and share in the results. Since a class action is a group claim the settlement is often a group result where the class members are grouped according to the consequences they suffered and each member of the group receives the same share of the resulting settlement or court award.
If there is disagreement about whether or not you or the at-fault person are workers acting in the course of employment, how is that resolved?
A worker injured in the course of employment cannot sue another worker or employer who was also acting in the course of employment (as per Section 10 of the Act). Sometimes the facts are controversial and it’s unclear whether you or the person you want to sue are workers or employers or — even if you are — whether you were in the course of your employment. These questions will need to be answered as a part of the lawsuit.
The only person or agency that can formally and finally decide whether the lawsuit is one between two workers in the course of employment or a worker and an employer in the course of employment is the Workers’ Compensation Appeal Tribunal (WCAT). The Legislature granted that authority to the WCAT (see Section 257 of the Workers Compensation Act).
The procedure for obtaining a WCAT determination is established by the WCAT.
Any decision reached by the individual, the insurance company, or staff at WorkSafeBC is not binding on the WCAT. Those decisions may be adequate for those people to conduct their business or their decisions, but amount to no more than a preliminary opinion as far as the court or the WCAT is concerned. The binding decision must come from the WCAT. The insurance adjuster may decide that you are a worker and refuse to pay insurance benefits. WorkSafeBC may decide that you are not a worker. The WCAT is the only person who can decide that question for purposes of the lawsuit.
What happens to any money obtained by WorkSafeBC resulting from settlement or trial of the lawsuit?
Section 10 (6) of The Workers Compensation Act says that, from any settlement or amount awarded in court, WorkSafeBC will deduct the amounts paid to you (the worker) or on your behalf as compensation plus an administration fee. (The administration fee is a percentage of the compensation benefits paid, not the amount of the settlement.) Any amounts over and above the compensation and administration fee, also known as “the excess”, will be paid to you. If the amount recovered is less than the compensation paid, then no additional payment is made to you.
If I pursue a lawsuit privately and then need to apply for the additional compensation as described, how does WorkSafeBC decide whether additional benefits will be paid?
WorkSafeBC compares the total amounts agreed to in the settlement or awarded by the court to the total amount of compensation that would be paid on the claim. If the total amount of compensation that would be paid is more than the total amount agreed to in the settlement or awarded by the court, then the additional amounts will be paid as compensation*. This is called the “excess”. This procedure is in accordance with Section 10 (5) of the Workers Compensation Act.
*Note: If you intend to rely on this option, WorkSafeBC must receive a signed Application for Compensation and Report of Injury or Occupational Disease (Form 6) within one year of the injury. See “What happens if I don’t claim compensation?” above and “What is a provisional claim?” below.
Class actions and claims against organized trust funds resulting from multiple lawsuits are a form of lawsuit. A B.C. worker disabled by an asbestos-related disease has a choice under Section 10(2) (see section titled "Can I sue the person who caused the injury or death?"). If you (the worker) choose to sue, you can hire your own lawyer and apply to join any class actions or trust claims that exist for asbestos-related claims. If you choose to claim workers’ compensation, then WorkSafeBC will include your claim in available class actions or trust claims. If you chose not to claim compensation and there is no existing class action to join, then you and your lawyer can consider starting a class action. If you chose to claim compensation, then WorkSafeBC and its lawyer can consider starting a class action.
At present most of the lawsuits WorkSafeBC is involved in for occupational disease are asbestos-related lawsuits. Asbestos products have been linked to lung disease and cancers. Many workers or their surviving families have made claims for asbestos-related disease. WorkSafeBC has pursued claims against manufacturers and distributors of asbestos products.
Some diseases are contagious and result from exposure to the virus or bacterium that spreads the contagion. Workers exposed to contagion are usually health-care workers and the contagion occurs in circumstances where there is no non-worker or non-employer who could be successfully sued. In those situations a lawsuit is not possible. Exceptions might occur where an individual is deliberately or recklessly spreading the contagion, but those circumstances are unusual.
Some diseases are related to products such as asbestos or toxic chemicals. The product may be negligently manufactured or distributed and the manufacturer or distributor may not be an employer or worker under the Workers Compensation Act. In these cases a lawsuit may be possible. Examples of such lawsuits include lawsuits for asbestos-related disease, hepatitis caused by tainted blood, or cases of exposure to tainted food products.
When you apply for compensation, WorkSafeBC considers whether your injury is one where there is the possibility to sue someone at fault. If you think that there is someone who is at fault who might be sued, you should say so in your application so that WorkSafeBC can take your opinion into account. When WorkSafeBC thinks there is such a possibility you will be sent an election form. You can also discuss this possibility with the Entitlement Officer or Case Manager on your claim or with a WorkSafeBC lawyer.
If you have already consulted a lawyer and are planning to sue, WorkSafeBC will conclude that you have chosen to pursue a lawsuit. A claim number will be assigned to your case and the case will be suspended while you pursue your lawsuit. No decisions will be made or benefits paid while you pursue your lawsuit.
If you are given an election and choose to claim compensation and your claim is allowed, your file will be referred to Legal Services to consider whether or not a lawsuit will be pursued.
Legal Services considers whether or not the at-fault person can be sued or is also a worker or employer who was acting in the course of employment and, therefore, cannot be sued. If you have received an election form, that is an indication of a preliminary opinion that you can sue. Additional information provided to WorkSafeBC or additional investigation will either confirm that preliminary opinion or change it.
Legal Services will consider apparent fault. Lawsuits depend on fault and the court will decide the case on the basis of fault. If another person is completely at fault, the lawsuit will be successful. If Legal Services cannot prove the other person was at fault, the lawsuit will fail. If you and the other party are both at fault, then the court will divide the result. If the court concludes that the other party is only 50% at fault, then the amount of the recovery in the lawsuit is limited to 50% of the value of the items claimed in the lawsuit.
Legal Services also considers the following factors:
The result of a successful lawsuit is a court order for payment of money. The at-fault person is ordered to pay money as compensation for the injuries or death. Necessarily, this requires a business decision about whether the time, costs, and difficulty of pursuing a lawsuit are justified depending on the outcome of the lawsuit. Will it be worth pursuing?
One factor is the cost of the lawsuit compared to the possible recovery. Some kinds of lawsuits are very expensive to pursue. If the expense of the lawsuit is higher than the amounts you can receive in damages then it does not make good business sense to pursue the lawsuit.
Another factor in deciding whether a lawsuit is worth pursuing is the chance of actually collecting the money the court orders to be paid. For injuries caused by a motor vehicle accident, there is usually an insurance company that will pay the claim. For cases of assault, sexual assault, or theft, the money must be collected personally from the at-fault person. Even where there is insurance, there may not be enough insurance and the amount of the settlement or court award that is over and above the value of the insurance needs to be collected from the at-fault person.
Where the at-fault person does not own assets, does not have a job or other source of income, is bankrupt, lives in another province or country, or has insurance but the size of the policy is small, collecting money from them personally may be so unlikely or so difficult and expensive that the lawsuit is not worth pursuing.
Section 55 of the Workers Compensation Act requires an injured worker to claim benefits within one year of the injury. Unless there are exceptional circumstances, failure to make that claim within one year can result in the worker losing the right to receive compensation benefits.
Since lawsuits usually take more than one year to be completed, that creates a problem. You (the worker) may not be able to receive the top-up benefits under Section 10(5). To avoid that problem, you can file a claim on a provisional basis. You or your lawyer must submit a signed application form to WorkSafeBC within one year of the injury. The application form should come with a letter explaining that you are pursuing a lawsuit and are not claiming compensation benefits at this time but are filing the form only to meet the one-year deadline. WorkSafeBC can then assign a claim number to the case and suspend it. This claim is known as a provisional claim and preserves your right to request additional compensation if your lawsuit pays less than WorkSafeBC would have paid.
An injury lawsuit between two B.C. workers or between a B.C. worker and a B.C. employer is barred by Section 10 of the Workers Compensation Act if they were all acting in the course of employment.
A binding formal decision about whether they were all acting in the course of employment can only be obtained from the WCAT, under Section 257 of the Act. (See “Re: WCAT” above.) A Section 257 decision will take time.
Some persons or organizations request a WorkSafeBC decision rather than go through the Section 257 process. When a person (injured worker or their representative) wants a WorkSafeBC decision not in order to receive workers’ compensation but for the purpose of pursuing a lawsuit, this is known as a notional claim. However, any WorkSafeBC decision is not binding and amounts to an opinion only. If you (a worker) make an actual application for benefits, WorkSafeBC will conduct the necessary investigations, will make the necessary decisions, and will pay benefits according to those decisions. However, where it appears to WorkSafeBC that you want a decision not in order to receive compensation benefits but for purposes of pursuing a lawsuit, WorkSafeBC will not proceed. WorkSafeBC does not consider an application form aimed at a denial of benefits to be a proper application for benefits. WorkSafeBC will not use its limited resources to make what amounts to a non-binding opinion for purposes of a possible lawsuit when that task belongs to the WCAT for purposes of lawsuits. The proper procedure for getting a decision that you are not a worker or not in the course of employment for the purposes of your lawsuit or ICBC claim is an application to the WCAT.