ICBC "User Fees" and Receipted Special Damages


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.

Daitol v. Chan, Madam Justice Griffin, Special Damages, User Fees

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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