ICBC Injury Claims and Structured Judgements: The "Best Interests" of the Plaintiff
When a BC motor vehicle accident tort claim goes to trial and a judge or jury awards pecuniary damages over $100,000 s. 99 of the Insurance (Vehicle) Act requires the award be paid periodically where it is “in the best interests of the plaintiff” to do so. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this area of law.
In last week’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a 2003 collision. She developed Thoracic Outlet Syndrome and experienced disability related to this. Her claim went to trial where she was awarded just over $1.2 million by a Jury. This award was reduced somewhat by the BC Court of Appeal.
Ultimately the Plaintiff was awarded $436,000 for loss of future earning capacity. ICBC applied under section 99 of the Insurance (Vehicle) Act to pay this portion of the judgement in monthly installments at $1,357 per month arguing that this would be in the ‘best interests‘ of the Plaintiff. Madam Justice Griffin disagreed and dismissed the applicaiton. In doing so the Court provided the following useful reasons:
 The defendants argued that since they were only seeking a partial structured judgment, rather than a structured judgment that applied to the whole of the future damages award, the plaintiff will be left with sufficient flexibility to meet any fluctuating needs. I am not convinced this is an entirely fair approach. The future care award is allocated for the plaintiff’s future care needs. Normally a person uses income to pay for extraordinary living expenses or to make choices such as repayment of debt. If the loss of future earning capacity award is structured, the plaintiff will lose this flexibility. Such a loss of flexibility is not cured merely because only a partial structured judgment is sought.
 In this case, a factor that weighs heavily is the fact that the proposed structured judgment will run for 38 years. That means, if a structured judgment is ordered, that for 38 years of this plaintiff’s life, she will not have the ability to make her own choices about her investments or her needs, beyond what she can do with receipt of the monthly periodic sum. None of the evidence proffered by the defendants suggested that a fixed rate of return of 2.5% would be a safe investment over 38 years. If the financial landscape changes drastically in 25 years, the plaintiff will not have the flexibility to adapt if she is subject to the structured judgment. However, if the financial landscape changes drastically in the next 25 years, and she has been fiscally conservative in managing a lump sum award of damages, she will have the flexibility to deal with the change in circumstances.
 I come back to the principle enunciated in Lomax, namely that a damage award is the plaintiff’s own property. Underlying this point, in my view, is the common sense observation that a central aspect of one’s dignity and humanity is the ability to control one’s own destiny by the freedom to make one’s own choices. Where a plaintiff has been injured through the negligence of defendants, such that she has suffered a significant loss of earning capacity, as here, she has already lost some personal dignity in that her future choices have been limited due to her injuries. In this case the plaintiff would lose additional dignity and autonomy if her ability to make her own decisions about her damages award was taken away.
 Having observed the plaintiff’s evidence at trial and on this hearing before me, I was impressed with her capabilities. I observed that she was a person who was a “go-getter” before her injuries, and she remains someone with an independent and strong personality. I have considered all of the factors referred to above, and weighed the risks and benefits of a structured judgment against the risks and benefits of a lump sum award. I conclude that an order that the loss of future earning capacity award be structured would not be in the best interests of this plaintiff.
 I therefore dismiss the defendants’ application.