Tag: interest on special damages

Court Ordered Interest Allowed on Unpaid Special Damages

It is well established that a litigant in a BC injury claim is entitled to court ordered interest on successful special damages claims.  What about special damages that are owing but have have not yet been paid?  Is interest recoverable on these?  Reasons for judgement were released last week addressing this topic and the answer is yes.
In last week’s case (Thibeault v. MacGregor) Mr. Justice Weatherill provided the following analysis:
[134]     I agree with Mr. Walton that the plaintiff is entitled to interest pursuant to the Court Order Interest Act (COIA) on the special damages I have awarded, even though the charges for physiotherapy have not yet been paid.  The relevant section of the COIA provides:
(1) Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.
(2) Despite subsection (1), if the order consists in whole or part of special damages, the interest on those damages must be calculated from the end of each 6 month period in which the special damages were incurred to the date of the order on the total of the special damages incurred
(a) in the 6 month period immediately following the date on which the cause of action arose, and
(b) in any subsequent 6 month period.
[emphasis added]
[135]     Black’s Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself (a liability or expense)”.  The plaintiff became liable for the cost of her physiotherapy payments when she either attended or missed her appointments.

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.

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If you would like further information or require assistance, please get in touch.

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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