Tag: Donald Yule

Loss of Companionship "Services" in BC Wrongful Death Claims


There is a general prohibition preventing damages being awarded for “loss of companionship” in BC Wrongful Death lawsuits.  However, if the companionship can be characterized as a “service” which can be quantified and needs replacement damages can be awarded.  This was demonstrated in the arbitration decision of NN, DN and MEN v. ICBC which I summarize in my continued efforts to create a searchable ICBC UMP claims database.
In NN, DN and MEN v. ICBC, the Claimant’s spouse was killed in a motor vehicle collision.  The at fault driver was uninsured.  The Claimant sought damages under BC’s Family Compensation Act.  It was agreed that the Claimants were insured for UMP coverage with ICBC.  The parties agreed to have damages assessed though private UMP arbitration.
At the time of his death the deceased was separated from his spouse for many years.  Despite this he had a good relationship with her.  She suffered from vascular dementia and lived in a group home.  He visited her on a daily basis and took her out and spent time with her.  She sought damages for “loss of companionship services“.  ICBC opposed arguing nothing was recoverable as “loss of spousal companionship is not a compensable head of damage in a family compensation claim“.
Arbitrator Donald Yule agreed that while the “loss of spousal companionship” prohibition exists, it does not extend to services.   Arbitrator Yule accepted expert evidence that these companionship services were “important to (the spouse’s) quality of life” and assessed damages for this lost service at $35,000.  In doing so Arbitrator Yule provided the following helpful reasons:
52.   This case helps to clarify that it is the “services” aspect of the deceased’s conduct that is compensable.  It does not mater that the service is motivated by love and affection for a spouse.  Household services are also motivated by care and affections.  The replacement of them is clearly compensable.  Mrs. N’s claim is for compensation services, not merely the loss of companionship.  In Bianco Estate the claim was for loss of companionship only.  The plaintiffs were seeking an “at large” lump sum award.  Hence, the issue as to whether the award was pecuniary or non-pecuniary.  There was no attempt in  that case to attach an economic value or cost to the lost services aspect of companionship.  The judgement at paragraph 12 seems to leave open the possibility of a compensable claim where substitute or replacement services result in an actual pecuniary loss.
53.  It seems to me that one aspect of Mr. N’s companionship is the loss to Mrs. N., in terms of the pleasure and comfort that derives from the continuing association with a long time friend and spouse.  That loss is irreplaceable; no economic value can be attached to it and it is not compensable.  That is the solatium aspect.  But another aspect of MR. N’s companionship is the loss to Mrs. N. of having someone to take her out of the Lodge on a daily basis; to encourage and facilitate her maintaining mobility as long as possible; to provide a ‘break’ from the institution; to provide an opportunity to supplement her food intake; and to provide social stimulation to the extent she is able to participate in it.  This is a loss that can be provided by substitute services….There is certainly a health and medical benefit aspect to these services.

Cost of Future Care Reports and Hearsay Evidence


When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care.  These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care.  Can this evidence be admitted?  This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision.  The matter was arbitrated under UMP.  In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members.  ICBC objected to this report on several grounds.  One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs.  Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections).  In addressing the hearsay component Arbitrator Yule provided the following useful reasons:
18.  As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares.  The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers.  Cost of care expers routinely include informaiton regarding the costs of services in their reports.   In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy.  Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it.  At paragraph 185 the Judge said:
I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health.  I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them.
In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion.
19.  As a practical matter, the admissibility of costing information on this basis makes eminent sense.  If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay.  Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time.  Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.

The Deductibility of Part 7 Benefits in ICBC UMP Claims

I’ve previously discussed the deductibility of Part 7 Benefits in Tort Claims.  These benefits are also deductible in ICBC UMP (Underinsured Motorist Protection) Claims.  This was demonstrated in CD v. ICBC which I summarize below in my effort to create a searchable UMP judgement database.
In CD v. ICBC the Claimant was injured in a 2003 Collision in California.  The at fault motorist only had $25,000 in Third Party Liability coverage.  The Claimant was insured with ICBC applied to ICBC pursuant to UMP.  The value of the Claimant’s claim was decided via arbitration.  Arbitrator Yule quantified the claim at $27,500 less the $25,000 USD payment that was made by the at fault party’s insurer.  When converted to Canadian funds the payment exceeded the value of the claim leaving ICBC with no responsibility to pay under UMP.
Prior to reaching this conclusion the Arbitrator addressed the deductibility of Part 7 Benefits.  The Claimant claimed special damages of $1,445.  ICBC argued that all of this could have been claimed as a Part 7 Benefit and ICBC was under no obligation to cover these expenses under the provisions of UMP.  Arbitrator Yule agreed and in doing so provided the following reasons:
[ICBC] takes the position that nothing is recoverable for physiotherapy or massage therapy because these expenses are payable as no-fault benefits under Part 7 and, as such, are a “deductible amount” from UMP compensation.  There is no evidence that ICBC refused to pay these expenses under Part 7…I agree that the physiotherapy and massage therapy expenses are not recoverable in these circumstances as part of UMP compensation.  The vehicle repair deductible is not compensible because it is a claim relating to property damage, and UMP compensation is restricted to damages for injury or death.

Gross Past Tort Payments Deductible in ICBC UMP Claims


This is the second in my series of UMP Case Summaries.  In today’s case (LD v. ICBC) the arbitrator had to address whether legal fees can be taken into account when considering the deductibility of past tort payments.
In LD the Claimant was involved in as 2003 collision in California.  The Claimant was insured with ICBC and had UMP coverage.  The at fault motorist only had $25,000 in Third Party Liability coverage and ICBC agreed that the Claimant’s claim exceeded this amount.
The parties agreed to have the value of the claim determined via UMP Arbitration.  Total damages of $86,608.31 were assessed.  Prior to this the Claimant already settled with the Defendant’s insurer for the policy limits of $25,000.  She had to hire counsel to achieve this result and after legal fees she received $16,054.
The Claimant argued that only the $16,054 should be deducted from the UMP damage assessment.   The arbitrator (Donald Yule) disagreed and deducted the full $25,000.  In doing so he provided the following reasons:
ICBC, however, submits that the correct deductible amount is what the M’s liability insurer was obliged to pay, namely $25,000.   (This position) is supported by the decision of Arbitrator Paul Fraser, Q.C. in Cederberg v. ICBC (May 18, 1995)….As Mr. Fraser concluded, the obligation to pay attorney’s fees arose out of a separate and independent contract with the attorney which, in no way, reduce the amount paid by the tortfeasor or payable by the tortfeasor’s insurer.  I agree with his analysis.  The full amount of the settlemetn of the M’s liability insurer is therefore a deductible amount.
This decision is also worth reviewing for the non-pecuniary damage assessment.  The Plaintiff suffered various soft tissue injuries.  Non-pecuniary damages were assessed at $55,000.  In doing so Arbitrator Yule made the following findings:
I find that in the accident Mrs. D suffered a Grade III whiplash associated disorder injury, bilateral thoracic outlet syndrome and right ulnar neuropathy, a Grade II lumbosacral spinal strain injury and myofascial pain in her shoulder ridge areas, and bruising to the knee.  These injuries caused headaches, interference with sleep, fatigue, irritability and anxiety.  The bruising resolved in short order.  The low back symptoms resolved within 2 years.  Headaches, and neck pain extending into the shoulders, while significantly inmproved by September, 2005, have nevertheless persisted to the date of hearing…
…I assess Mrs. D’s non-pecuniary damages at $55,000.
I should note that, adjusting for inflation, this assessment is closer to $58,000 in today’s dollars.

UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.
Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.
The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:
The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…
…I assess the non-pecuniary damages at $95,000.
I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.

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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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