ICBC Law

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to provide particulars of claimed special damages.

In this week’s case (Amezcua v. Norlander) the Plaintiff was injured in two collisions.  The Defendants applied, at a Case Planning Conference, that the Plaintiff produce particulars of special damages.  In agreeing that this was an appropriate order Master Baker provided the following reasons:

[5] …In particular leading authorities on pleading confirm that it is appropriate to expect a party to plead details of special damages and, if they are not given, to demand particulars.  The author of Odgers On High Court Pleading and Practice cites, as an illustration, Hayward v. Pullinger & Partners Ltd.:

But when any special damage is claimed, without sufficient detail, particulars will be ordered of the alleged damage…

More recently and locally the authors of Conduct of Civil Litigation in British Columbia comment:

Special damages must explicitly be claimed and proved.

And further, in relation to past wage loss:

…but the weight of the authority treats these as special damages which therefore must be specifically pleaded; the defendant is also entitled to particulars.

I cite this latter quote not in respect of wage losses per se, but for the implicit assumption that a defendant is entitled to particulars of special damages.

[6] I cannot see, then, why a party should not be required to particularize his or her special damages to date.  The same, of course, cannot be said for general damages, but the defence is not asking for that.  The plaintiff will therefore give particulars of her special damages to date.

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.

In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression.  The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.

In the course of the lawsuit the Plaintiff obtained a private MRI.  At trial the Plaintiff sought to recover the cost associated with this.  The Defendant opposed this arguing it was not a reasonable expense.  Mr. Justice Pearlman disagreed and allowed recovery of this item.  In doing so the Court provided the following reasons:

[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree.  Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.

ICBC typically covers only a portion of physiotherapy expenses under an individuals own plan of insurance.  Treatment expenses over and above ICBC’s insured amounts typically are referred to as ‘user fees‘.  Provided that such therapies are reasonably incurred following a collision the fees associated with them are usually recoverable as ‘special damages‘ in a tort claim against the at-fault motorist.

As with most special damages, however, it is important to document these expenses.  Failure to do so can result in the claimed expenses being denied.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Daitol v. Chan) the Plaintiff was injured in a motor vehicle collision.  At trial the Plaintiff sought recovery of $1,500 of estimated user fees as special damages.  The Plaintiff unfortunately did not have receipts to prove she incurred these expenses.  Madam Justice Griffin denied this portion of the Plaintiff’s claim and in doing so provided the following reasons reminding Plaintiff’s the importance of documenting their damages:

[63] Ms. Daitol advances a claim for the user fees she was required to pay for her physiotherapy sessions.  She estimates that she paid in the range of $1,500-$1,900 in fees out of her own pocket.  She therefore advances a claim for special damages of $1,500.

[64] Unfortunately, Ms. Daitol, who was not represented by her current counsel at the time, did not keep track of her physiotherapy expenses and has no corroborating evidence regarding the number of treatments or the exact cost of them.  At best, her evidence as to her total out-of-pocket cost was a guess.  While I do not believe that Ms. Daitol would in any way attempt to mislead the court, nevertheless, her evidence as to her physiotherapy expenses is inherently unreliable due to the fact that she did not in any way keep track of her sessions or the cost of them.  As such, I do not award her any amount in respect of this claim.

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, disallowing the cost of a private MRI as a special damage in a personal injury claim.

In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  In the course of the Plaintiff’s lawsuit the Plaintiff obtained three private MRI’s.  The Plaintiff advanced the costs of these MRI’s as special damages at trial.  In declining to compensate the Plaintiff for these expenses Mr. Justice Truscott provided the following brief reasons:

[192] I decline to award anything for the three MRIs because the plaintiff decided to do these on his own, when Dr. Hobson told him that they were not medically indicated. In the circumstances there is no evidentiary basis for such an award.

It is worth pointing out that the costs associated with Private MRI’s can be recovered in a personal injury claims if a medical practitioner gives evidence that the expense is reasonably incurred for a valid medical purpose related to the claim.

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.

In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice.  The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana.  Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.

When suing an at fault party in a personal injury claim the Plaintiff is entitled to compensation for their reasonable medical expenses.  These expenses may include the cost of driving to and from various medical and therapy appointments.  How much is a reasonable amount to claim for transportation costs?  Reasons for judgement were released today addressing this topic.

In today’s case (Greewal-Cheema v. Tassone) the Plaintiff was injured in a 2007 BC motor vehicle accident.  Her vehicle was rear-ended.  Fault was admitted by the rear motorist.  The trial focused on the value of her ICBC claim.

The crash caused soft tissue injuries which largely recovered by the time of trial and the Plaintiff was awarded $25,000 for her pain and suffering.  In the course of recovering from her injuries the Plaintiff attended various therapies and claimed reimbursement at $0.50 per kilometer for the travel incurred in driving to and from these appointments.  ICBC argued that this was excessive and that no more than $.30 per kilometer should be allowed.  Mr. Justice Stewart disagreed with ICBC and found that the Plaintiff claimed a reasonable amount for her mileage related expenses.  In reaching this conclusion the Court provided the following useful comments:

[60] The plaintiff claims special damages of $2,683.50.  The defendants take issue with only a few things.  The defendants say that the amount allowed for mileage should be $.30 per kilometre not $.50 per kilometre.  Both counsel refer to the Schedules that form part of the Rules of Court.  I am not bound by the Rules on this point.  I say that what matters is that judges live in the real world.  In this day and age $.50 per kilometre is, if anything, too little.  I am against the defendants.  $.50 per kilometre it will be.  The defendants also made a submission about the period June 5, 2008 to August 25, 2008 and what the plaintiff was about during her “voluntary work strengthening program”.  Simply put, I found the defendants’ submission unconvincing.  I accept the plaintiff’s testimony to the effect that she worked hard and diligently and treated what she was about as if it were her job.  In the result I award the plaintiff $2,683.50 by way of special damages.

Special Damages are out of pocket expenses a Plaintiff incurs as a result of the fault of another.  In an ICBC claim some of the typical special damages are costs for therapies and medication.

When a tort claim goes to trial a Plaintiff is entitled to recover their special damages from the at fault party.  There is a very important exception to this in ICBC Claims, and that is if the Plaintiff’s special damages are covered by his own ‘no-fault’ insurance from ICBC an at fault defendant is entitled to reduce the amount of special damages by the amount the Plaintiff claimed or could have claimed under their own policy of insurance.  (You can click here to read a previous post of mine for more background on this topic)

At trial, then, should a Plaintiff advance a claim only for expenses that have not already been covered by ICBC or should they advance a claim for all of their out of pocket expenses?  Reasons for judgement were released today by the BC Court of Appeal addressing this.

In today’s case (Gasior v. Bayes) the Plaintiff was injured when his bicycle was struck by a vehicle.  At trial a Jury awarded the Plaintiff $488,500.  The trial judge then reduced portions of this award to account for ‘no-fault’ benefits the Plaintiff would be entitled to.

ICBC, on behalf of the defendant, appealed arguing that the trial judge was incorrect in some of her deductions.   The Defendant claimed that a Plaintiff has to advance all of their special damages at trial (including money already reimbursed by ICBC) so that a proper deduction can be made after the special damages are assessed.  The Court of Appeal disagreed and provided the following useful practice tip:

[17] The defendants argued that under the provisions of s. 25 of the Act, it was only appropriate for a plaintiff to advance a claim for all special damages (gross basis), allow the trier of fact to pass on this figure and make an award, and thereafter permit the defendant to deduct from such award all no-fault benefits previously advanced.  This methodology has some attraction on the basis of simplicity (and avoidance of the sort of confusion that seems to have bedevilled this case).  However, as pointed out by counsel for the plaintiff, when trying to conform to such methodology in a case before a jury, it becomes very difficult to avoid references to insurance and the insurer.  As well, it may be difficult for a plaintiff to become aware of all expenditures paid on a no-fault basis by the insurer.  If these hurdles could be satisfactorily overcome, the methodology argued for by the defendants may be preferable, but I consider that advancement of a special damages claim on a net basis can be an acceptable approach, especially in a jury trial.  That methodology which will most effectively avoid the possibility of any infringement of the rule against double recovery is to be favoured and I would leave it to the good sense of counsel and trial judges to seek to achieve such result in any given case.  Clear communications between respective counsel and the trial judge are essential for the achievement of such result.  I would note there was some deficiency in clarity of communication in this case.

Here is a video I recently uploaded to YouTube discussing some of the factors that go into valuing a BC Personal Injury Tort Claim:

One of the most frequent questions I’m asked as a BC Personal Injury Lawyer is ‘how much is my claim worth?’.

This is an important question for anyone injured through the fault of another in British Columbia.  When negotiating with ICBC (or another Insurance company) the playing field is typically imbalanced in that the Claims Adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing these claims and may need help valuing your losses.

It is important to empower yourself for the negotiation because in tort claims the insurer is negotiating on behalf of the person that injured you.  With this in mind, here is a brief video introduction discussing some of the common ‘heads of damages‘ that are frequently addressed in BC personal injury lawsuits.  I hope this information is of some assistance and helps to balance the playing field.