Tag: Deduction of Part 7 Benefits

The Inability to Afford Therapy and the Duty to Mitigate Damages


As I’ve recently written, a Plaintiff has a duty to ‘mitigate‘ their losses after being injured otherwise the damages they are entitled to can be reduced.
The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with all of the suggestions of their medical practitioners.  If evidence supporting such an argument is accepted then the Plaintiff’s award can be reduced.
What if a Plaintiff can’t afford to purchase all the therapies/medications recommended by their physicians?  Can their damage award be reduced in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In this week’s case (Trites v. Penner) the Plaintiff, an apprentice plumber, was injured in a forceful rear end collision in 2005.  Fault for the crash was admitted by the rear motorist.  The trial focused on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries.  He followed a course of therapy in the months that followed and enjoyed some improvement in his symptoms.  During his recovery ICBC (the Plaintiff’s insurer for ‘no fault’ benefits) discontinued “funding for (the Plaintiff’s) efforts at rehabilitation.”
At trial the Defence lawyer argued that the Plaintiff should have followed through with these therapies in any event and that his damages should be reduced for failure to mitigate.   Madam Justice Ker disagreed and took the Plaintiff’s inability to pay for his therapies into consideration.  The Court provided the following reasons:

[209] Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses.  What is reasonable will depend on all the surrounding circumstances.  One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation.  As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own.  Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication.  All of these items had significant benefits to Mr. Trites but they also carried with them significant costs.  In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.

[210] I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable.  This is not a case where the plaintiff has refused to take recommended treatment.  Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them.  Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered.  I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time.  As Smith J. noted in O’Rourke v. Claire, [1997] B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”

[211] Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case.

You may be wondering if ICBC is allowed to, on the one hand deny a Plaintiff rehabilitation benefits, and on the other have the Defendant’s lawyer argue at trial that the Plaintiff should have pursued these benefits and therefor reduce the Plaintiff’s award.  The answer is yes and you can click here to read a previous article discussing this area of law, and here for the latest from the BC Court of Appeal on this topic.
Today’s case is also worth reviewing for the Court’s discussion of non-pecuniary damages and diminished earning capacity.
The Court accepted that the Plaintiff suffered moderate soft tissue injuries to his neck and back and these had a ‘guarded’ prognosis for full recovery.   $75,000 was awarded for his non-pecuniary damages and the Court’s reasons addressing this can be found at paragraphs 188-198.
The Plaintiff was also awarded $250,000 for diminished earning capacity.  He was an apprentice plumber and, despite his injuries, was able to continue to work in this trade in the years that followed the collision.  However he struggled in his profession and there was evidence he may have to retrain.  The court’s lengthy discussion addressing his diminished earning capacity can be found at paragraphs 213-239.

BC Court of Appeal On The Deductibility of Part 7 Benefits in Tort Actions

Further to my post yesterday on the Deductibility of Part 7 Benefits in BC Tort Actions the BC Court of Appeal made some interesting comments with respect to these in reasons for judgement released today.
In today’s case (Boota v. Dhaliwal) the Plaintiff was awarded just over $170,000 in total damages by a jury as a result of a 2003 Car Crash.  The trial judge reduced part of the Jury Award by $1,000 as an assessment of the benefits that the Plaintiff was entitled to receive from ICBC under his policy of insurance.  The Defendants, who were insured with ICBC, appealed this portion of the judgement arguing that a far greater amount should have been deducted from the jury award.
The Court of Appeal Dismissed this appeal and in doing so made the following useful comments:

[72] I turn to consider the question of whether the trial judge in this case erred in estimating the s. 25 deduction either by incorporating a matching approach or by considering the likelihood of ICBC paying benefits.

[73] As noted already, the jury awarded the appellant $28,205 for the cost of future care.  The jury was not asked to specify the items of future care which it awarded, though there seems to be no reason where the claim is advanced as a pecuniary one that the jury could not be required to particularize this part of the award.  The trial judge deducted $1,000.  Because it is possible the appellant may in the future apply for, and receive, payment under Part 7, there exists the risk that he will be doubly compensated.  However, the trial judge held that he was unlikely to be paid and therefore assessed a nominal deduction.  ..

The respondents argued at trial that the appellant was not entitled to the $218,893 – $377,273 he claimed as future cost of care.  The defence largely succeeded in that argument.  I infer the jury found either that the bulk of the future expenses claimed were unnecessary, or if they were necessary, the condition for which they were necessary was not caused by the motor vehicle accident.  The respondents cannot now succeed in arguing that the appellant’s entire claim  for future cost of care as advanced at trial (one which the appellant pressed at trial, has now been judicially determined to be largely without merit) ought to reduce the entirety of his tort award.  I would not accede to this argument.  This is not a question of matching Part 7 claims to specific heads of damage in tort, which Gurniak says is wrong, but rather a question of not estimating claims under Part 7 in a manner opposite to what has already been found in this case to be unnecessary or unrelated to the motor vehicle accident.

[82] That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.

[83] The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial:  Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.

[84] Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled.  That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7.  After all, how else is the court to perform the estimate?  Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25.  I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.

[85] The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations:  Schmitt at para. 19.  The trial judge may have regard to the position taken at trial.  (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42).  Should the trial judge take into account the verdict in her assessment of the likelihood of payment?  In my view that is one of the considerations that may be taken into account in adopting a cautious approach.  In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.

[86] In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses.  This is so because those same factors are pre-conditions for payment under Part 7.  It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7.  I cannot say that she erred in her conclusion.  I would not accede to this argument.

The reason this case is important is because, as I wrote yesterday, often times ICBC refuses to provide Part 7 Benefits and then has their lawyer in the tort trial argue that these benefits should have been paid thereby giving the Defendant a statutory deduction.  In today’s case BC Court of Appeal specifically stated that it is proper for a trial judge to look at the Defendant’s trial position during the damage assessment portion (where the lawyer usually argues that the Plaintiff’s expenses are unreasonable) and infer that this mirrors ICBC’s position when considering the payment of Part 7 benefits.

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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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