After settlement of a personal injury case with ICBC the last thing an injury claimant expects is another fight over the costs of the case. Well, currently the Insurance Corporation of British Columbia, ICBC, seems to be welcoming settlement with an iron fist by fighting costs after settlement. In the personal injury case of Gray v. Kohnert,2014 BCSC 888 the court was compelled to make the following comments:
This is an assessment of a bill of costs following the settlement of a personal injury action. The tariff items are not in dispute, but there are disbursements of $21,854.06 in dispute. The disbursements are primarily for medical legal opinions.
ICBC has made a recent practice of challenging medical disbursements. I have heard more disbursement challenges in the last few months than I have in the past two years. This is not intended to be a criticism. The defendant, more often than not, is the party who bears the cost of these disbursements…
On the other hand, or other side of the coin, is the equally compelling issue of access to justice to the plaintiff. Mr. E’s general submissions at the beginning of this assessment were compelling and warrant repeating. I am paraphrasing them here:
Plaintiff’s counsel does not have the bargaining power that the Insurance Corporation has in retaining experts to provide opinion evidence. The Insurance Corporation can set the rate it is prepared to pay for reports because it commissions so many reports in a year. Not so for the plaintiff. They have to obtain opinions to build their case. Their experts must be available for trial and have reports prepared in time. They often have to wait over a year for medical appointments. Physicians who qualify, and who are prepared to testify at trial, are few in number and high in demand, so they charge what the market will bear. If the court routinely discounts the charges for medical professionals, then either it will be more difficult for plaintiffs to prove their case or the cost of reports will be taken out of the plaintiff’s award. Plaintiffs already have their awards reduced by the legal fees they are required to pay in order to prepare their case and they are partially, but not completely, compensated for this through the award of costs.
After reviewing all the expenses ICBC had refused to pay after settlement, the injury claimant was substantially successful in proving the case expenses and was awarded costs of the assessment, which the court allowed at six units at $110. The court also allowed disbursements of an $80 filing fee for the appointment, a $40 fee for a certificate, and $250 of other disbursements. There were a significant number of photocopies for three books of authority and a brief, and so the total costs are $1,109.20. Again ICBC refused to pay this and had to be ordered to pay same.
It would be hard to imagine that ICBC has saved any money forcing successful injury claimants the go to court to prove the costs of photocopies and the like. Why would ICBC spend money to refuse to pay claimant’s legitimate case costs? In my view ICBC is sending a crude message to personal injury claimants that ICBC will not pay the medical expenses for innocent victims of personal injury to prove their cases. ICBC’s monopoly on car insurance emboldens the ICBC management to make decisions that negatively impact every personal injury litigant in the Province.
Unfortunately ICBC has been given a legislative monopoly on providing mandatory third party car insurance to every British Columbian. A monopoly exists when a corporation like ICBC has sufficient control over a product or service to determine significantly the terms on which other individuals shall have access to it.
This current shift in “corporate mentality” within the ICBC monopoly in my view undermines the purpose for having an ICBC in the first place. When the concerted efforts of ICBC, in so many different cases, provokes comment of the court, it behooves government and the public to reflect on the use or misuse of power and make changes to prevent such potential abuse.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.