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 judgment were published today by the BC Supreme Court, Vancouver Registry, ordering production of a statement from a Defendant to ICBC to be disclosed to the Plaintiff in a personal injury lawsuit.
In today’s case (Canning v. Mann) the Plaintiff was injured in a crash and sued for damages. The Defendant provided ICBC a statement detailing the circumstances of the crash. The Defendant refused to provide the statement to the Plaintiff in the lawsuit arguing it was privileged. The court ordered production noting there was insufficient evidence to establish litigation privilege. In ordering the statement to be disclosed Mr. Justice Basran provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a fall causing a permanent head injury.
In today’s case (Harrison v. Loblaws, Inc.) the Plaintiff was shopping in the Defendant’s store when she slipped on a large pool of liquid laundry detergent which was on the floor. She struck her head on the floor and suffered a concussive injury from which she did not recover.
The Defendant denied fault but the Court found the Defendant failed to establish that they followed their protocols to ensure the store was in reasonably safe condition for customers.
The Court accepted that the Plaintiff developed symptoms “consistent with post-traumatic brain injury syndromes or post-concussion syndromes” and that these were permanently disabling. In assessing non-pecuniary damages at $175,000 Mr. Justice Basran provided the following reasons:
 The evidence of Ms. Harrison, and those who knew and worked with her both before and after her accident, is that she sustained injuries that have dramatically impacted every aspect of her life. Whereas before the accident she was independent, active and optimistic, she is now a mere shadow of her former self. She is unable to work or enjoy any of the activities she used to do before the accident, including walking, swimming, and travelling. She is dependent on her son and is far less socially engaged than she once was.
 Her prognosis is poor and any further improvement in her condition is unlikely. Taking into account the variety and longevity of these symptoms, her enjoyment of life has been dramatically reduced. ..
 Ms. Harrison was 48 at the time of the accident. She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed. She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident. Her physical and mental abilities have clearly been impaired. As described earlier, she is no longer able to walk long distances nor is she able to swim. Her sensitivities to light, sound, and motion have dramatically affected her. She has clearly experienced a serious diminishment in the quality and enjoyment of her life. I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.
 Having found Ms. Harrison to be competitively unemployable and suffering from symptoms that appear to be permanent, I must make an award that addresses her particular condition and recognizes the nature and extent of her loss. On that basis, I conclude that an award of $175,000 satisfies those principles.