Tag: Section 83(5) Insurance (vehicle) Act

"Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that if there was uncertainty as to whether Part 7 payments will be made there should be no deduction of damages.
In the recent case (Tsang v. Borg) the Plaintiff had damages for future care of $5,000 assessed at trial.  The Defendant asked the Court to largely discount this award pursuant to s. 83 of the Insurance (Vehicle) Act on the basis that many of the Plaintiff’s future treatments will covered by ICBC under the no fault benefits plan.  Mr. Justice McKinnon noted this argument was “inconsistent” with the Defendant’s trial position and in any event the evidence required for the deduction fell short of the mark.  In dismissing the application the Court provided the following reasons:
[9]             At trial the defendants claimed that the plaintiff’s injuries for the most part were not caused by the accident. In Paskall v. Schelthauer, 2012 BCSC 1859, the court held that the regulations limit the benefits to injuries that the corporation views flow from the accident. It strikes me as inconsistent for the defendants to now argue that the plaintiff is entitled to benefits payable under part 7 and more to the point, raises the distinct possibility that in future, the corporation will deny claimed benefits as “not flowing from the accident”.
[10]         In her affidavit, Shelley Ruggles, the insurance adjuster assigned to administer the plaintiff’s entitlement, indicates some uncertainty about whether future treatments are recoverable. She writes, “Further requests for treatment could be covered under s. 88 of the Regulations”. This suggests some uncertainty.
[11]         It is only where there is no uncertainty as to whether the insurer will accept the treatment and pay the cost that deductions can be made, see Ayles (Guardian ad litem of) v. Talastasin, 2000 BCCA 87. At bar there is no such certainty and I therefore resolve the issue in favor of the plaintiff.
[12]         The award of $5,000 stands.

Plaintiff Awarded Partial Costs Despite Having Claim Dismissed at Trial

Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, highlighting the Court’s discretion with respect to costs consequences following a trial in which a pre-trial formal settlement offer was made.
In this week’s case (Russell v. Parks) the Plaintiff was injured when struck by the Defendant’s vehicle while walking in a parking lot.   Liability was at issue and ultimately the Plaintiff was found 2/3 responsible for the incident.  After factoring this split in the Plaintiff’s assessed damages came to  $28,305.  Prior to trial ICBC paid more than this amount in Part 7 benefits which are deductible from the damage assessment pursuant to section 83 of the Insurance (Vehicle) Act.
Despite proving partial liability against the Defendant and further proving damages, the Plaintiff’s claim was ultimately dismissed due to the above statutory deduction with Mr. Justice Abrioux providing the following reasons:
[20] In my view, this reasoning applies to this case, where the application of section 83(5) of the Act results in there being an award of $0 to the plaintiff. Accordingly, the action is dismissed and this should be reflected in the order.
Prior to trial ICBC made a formal settlement offer for $25,000 of ‘new money’.  The Court needed to consider what costs consequences ought to flow in these circumstances.  In awarding the Plaintiff 75% of pre-offer costs and having each party bear their own post offer costs the Court provided the following reasons:
[21] The dismissal of the action does not necessarily mean the plaintiff is disentitled to any costs: see McElroy v. Embleton, at para. 10.
[22] The first question is, putting aside for the moment the issue of Part 7 benefits paid, how should costs be apportioned from the time of the commencement of the action until April 13, 2012? At trial, I found the defendant to be one-third liable for the plaintiff’s loss. ..
[28] Having considered these authorities, and subject to my findings below regarding the Part 7 benefits, I find the plaintiff is entitled to 75% of his costs up to the date of the settlement offer of April 13, 2012. This reflects the fact that although the amount of time spent on determining liability at the trial was not “minimal”, more time was spent regarding the assessment of damages. This was shown in the medical evidence led, the reports which were obtained and the like. It would be unjust not to exercise my discretion to depart from the default rule referred to in paragraph 26 above in these circumstances.
[29] The next issue is whether the payment of the Part 7 benefits should affect the award of costs…
[43] This is not an appropriate case, in my view, to conclude as is submitted by the defendant that the plaintiff should not have proceeded to trial. It was not readily foreseeable to either party what the result was going to be with respect to liability or the quantum of damages. In so far as liability is concerned, I noted at para. 31 of my reasons for judgment that cases dealing with competing duties of pedestrians and operators of motor vehicles are highly fact specific.
[44] Taking all of these factors into account, I conclude that for the time period up to the defendant’s settlement offer of April 13, 2012, the plaintiff shall be awarded 75% of his costs and disbursements…
[45] What is the effect of the settlement offer made by the defendant for $25,000 of “New Money” as defined in counsel’s correspondence dated April 13, 2012? The New Money was in addition to the Part 7 benefits already received by the plaintiff. No objection was taken by the plaintiff to the form of the defendant’s offer to settle…
[62] Upon considering the factors in R. 9-1(6), I do not accept the defendant’s submission that double costs are appropriate. There is no reason for the plaintiff to be subject to a punitive measure. He was not unreasonable in rejecting the settlement offer. The issues at trial made the apportionment of liability quite uncertain. There was also a considerable range in the amount of damages which could have been awarded. The plaintiff’s finances would be greatly impacted if an order for double costs was made against him. In addition, the end result was effectively a nil judgment.
[63] Taking into account the legal principles to which I have referred and the particular circumstances which exist in this case, I conclude each party should bear their respective costs after the date of the defendant’s offer to settle. The plaintiff has already suffered some financial consequences for proceeding to trial in that I have decided he shall not receive 100% of his costs until the defendant’s offer to settle, but rather 75% of those costs.
 

Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries.  ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount.  In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:
3]         The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.
[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.
[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…
[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.
[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.
In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial.  ICBC sought to deduct some $16,000 in Part  7 items.  In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
[24]         In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.
[25]         Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
 

More on ICBC Part 7 Benefits Deductions in Personal Injury Lawsuits


As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act.   This deduction can be made even if you don’t apply/receive your Part 7 benefits.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial.  In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision.  This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:

  • massage therapy
  • chiropractic treatments
  • medications
  • occupational therapy
  • psychological counselling
  • speech therapy
  • vocational counselling
  • transportation costs

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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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