Can Interest on Unpaid Special Damages be Recovered in a Personal Injury Claim?
Special damages are out of pocket expenses incurred as a result of the intentional or negligent actions of others. In personal injury lawsuits the most common special damages relate to medical treatments such as physiotherapy, massage therapy, medications and similar expenses.
When a Plaintiff pays their own special damages and succeeds at trial they are entitled to be reimbursed for these expenses along with a modest amount of interest under the Court Order Interest Act. What about expenses that were not paid before trial where the medical providers charge interest on the unpaid accounts? Can a plaintiff recover damages for these additional expenses? Reasons for judgement were released today by the BC Supreme Court considering this issue.
In today’s case (Bortnik v. Gutierrez) the Plaintiff sued for injuries sustained as a result of a 2007 BC motor vehicle collision. Mr. Justice Myers found that the Plaintiff had “exaggerated his injuries“. Despite this finding the Court concluded that the Plaintiff suffered “some minor whiplash injuries as a result of the accident” and awarded the Plaintiff $20,000 for his non-pecuniary damages.
The Plaintiff also was awarded damages to account for the expenses related to some of his post accident chiropractic treatments. The plaintiff did not pay these accounts before trial and the chiropractor charged interest on the unpaid accounts. The Plaintiff asked the court to award damages to account for this interest.
Mr. Justice Myers refused to make this award finding as follows:
[54] It appears to me that the plaintiff acted reasonably in seeking chiropractic treatment. I would allow the expenses until December 31, 2009, when he was largely recovered.
[55] With respect to interest, while counsel have found some authority dealing with interest on disbursements, counsel advise they have not found any case dealing with interest on special damages. I therefore approach the matter on first principles.
[56] If the plaintiff had paid the chiropractor, he would have been limited to interest as provided by the Court Order Interest Act, R.S.B.C. 1996, c. 79. Assuming that interest on special costs may in some instances be recoverable as damages – something which I need not decide – it follows from my finding that the plaintiff has not proved a past wage loss that he cannot hold the defendants responsible for his inability or failure to pay the bills as they became due and owing. He therefore is not entitled to claim interest as damages.
The BC Supreme Court has recently allowed interest on disbursements levied by service providers to be recovered in a personal injury case. In that decision the Plaintiff’s ability to pay for the disbursement was also a relevant factor. Today’s case leaves the door open for a similar result in appropriate circumstances for unpaid special damages.