As previously discussed, if you are insured with ICBC and fail to pursue your own Part 7 benefits a Defendant can reduce their liability by the amount of the benefits you should have pursued. This can result in a very harsh damages deduction. This was again illustrated in reasons for judgement released last week by the BC Supreme Court, Kelowna Registry.
In last week’s case (Thomas v. Thompson) the Plaintiff was injured in a 2005 collision. The case went to trial in 2010 and the Plaintiff was awarded damages for various losses including the cost of future medical care. One of the future care items was the cost of Lyrica. The parties were invited to make further submissions regarding the future costs of this medication.
The Court accepted that the present day value of the Plaintiff’s future need for Lyrica totalled $147,939. This entire award was then deducted because the Plaintiff could have pursued payment for this directly under his no-fault benefits. In allowing this six figure damage reduction Mr. Justice Brooke provided the following reasons:
 The defendants say that rather than ordering the payment to the plaintiff of the present value of Lyrica as a cost of future care, the court must apply the provisions of s. 83(5) of the Insurance (Motor Vehicle) Act. This section in its entirety says this:
(a) within the definition of section 1.1, or
(b) that are similar to those within the definition of section 1.1, provided under vehicle insurance wherever issued and in effect,
but does not include a payment made pursuant to third party liability insurance coverage.
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
(3) Nothing in this section precludes the insurer from demanding from the person referred to in subsection (2), as a condition precedent to payment, a release to the extent of the payment.
(4) In an action in respect of bodily injury or death caused by a vehicle or the use or operation of a vehicle, the amount of benefits paid, or to which the person referred to in subsection (2) is or would have been entitled, must not be referred to or disclosed to the court or jury until the court has assessed the award of damages.
(5) After assessing the award of damages under subsection (4), the amount of benefits referred to in that subsection must be disclosed to the court, and taken into account, or, if the amount of benefits has not been ascertained, the court must estimate it and take the estimate into account, and the person referred to in subsection (2) is entitled to enter judgment for the balance only.
 I am satisfied that the Part 7 benefits available to the plaintiff exceeded the present value of those benefits and judgment may not be entered for them.
For more information on the complexities of part 7 benefits and tort damage assessments you can click here to read my article “the two hats of ICBC“.