In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims. In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.
In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision. She was rendered totally disabled as a result. At trial a jury found the Defendant 80% at fault for the crash. Damages were assessed including substantial damages for future care. The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available. Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met. In dismissing this portion of the application the Court provided the following reasons:
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision. The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted. ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks. In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:  It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).  I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…  The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.  I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.  I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.  I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.  I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.  Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.
If a Plaintiff is vocationally disabled due to a pre-existing condition this does not preclude a court from assessing damages for diminished housekeeping capacity. This was demonstrated in reasons for judgement released last week.
In last week’s case (Chow v. Nolan) the Plaintiff was largely disabled from a pre-existing traumatic injury. The Plaintiff was involved in a 2008 collision which worsened his pre-existing condition. Although the Plaintiff’s claims for diminished earning capacity were dismissed the Court accepted the aggravations further diminished his abilities to take care of his household and assessed damages for this loss. In doing so Madam Justice Kloegman provided the following reasons:  There were two reports from occupational therapists recommending the provision of homemaking services to the plaintiff. The biggest difference between them is that the plaintiff’s expert witness, Ms. Gibson, assumed that the plaintiff would be in need of these services until age 70, 75 or 80. This is not a reasonable assumption in light of the evidence of prognosis. Dr. Chu reported that the plaintiff will return to pre-2008 accident status at some point. Dr. Gill testified that two years is probably too soon to expect recovery to his pre-2008 accident status, but perhaps five years is reasonable.  In my view, on the totality of the evidence, it would not be reasonable to award the plaintiff for future losses that extend past five years from trial. I accept Ms. Gibson’s list of items which were submitted by the plaintiff as being reasonably expected to incur as a result of the plaintiff’s decrease in function, but they must be restricted to a period of five years. When each of these items is paid for separately, it is much more expensive (almost double), than hiring one person to perform these jobs. Ms. Gibson’s suggestion of using an agency person at a rate of $24 per hour at an annual cost of $22,276.80 ($21,216 plus 5% GST) is the most reasonable course of action.  This figure should be reduced by 20% to $17,821.40 to reflect reasonable positive contingencies such as not requiring as much assistance with meal preparation, transporting daughter, etc., on those days when the plaintiff feels capable of handling such things himself.  The present value of $17,821.00 over five years is $14,756.00 per year, for a total of $89,108. I award the plaintiff $89,108.00 for loss of homemaking capacity in the future.
Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.
In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care. In support of this claim the Plaintiff relied on the opinion of an occupational therapist. This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.
The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim. The BC Court of Appeal agreed in part and increased the assessment by $30,000. In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:
Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:
 The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.
See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.
I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed. But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional: Aberdeen at paras. 43, 63…
And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.
The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance. In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.
Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.
That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above. I would substitute an award of $30,000 over and above the amount already awarded under this head of damages. This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.
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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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