Gross vs. Net Special Damages At Trial in ICBC Claims
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:
 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.