ICBC has a statutory monopoly on third party automobile liability insurance coverage in BC and appears to be manipulating this monopoly in ominous new ways, testing our courts sense of justice. The Insurance Corporation of British Columbia has been systematically refusing to pay for necessary medical and other expert opinion upon settlement of cases to the point that it has drawn comment from the Court.
In this latest refusal to pay reasonable case expenses the Claimant was a front seat passenger when a U-Haul trailer jackknifed and sideswiped her vehicle resulting in a rollover of the vehicle (Collis v. Passero, 2014 BCSC 1844). The Claimant went on to suffer from serious PTSD symptoms and a medical expert identified the possibility of a mild traumatic brain injury. The defendant’s refused however to pay for the report of the Neuropsychologist and his assessment.
The Claimant also had significant aggravation of a rotator cuff tendonitis and subacrimonial bursitis, as well as an aggravation of a pre-existing arthritis of the right acromial clavicular joint, resulting in ongoing pain of the right shoulder. The defendant’s however refused to pay for the report of an orthopedic surgeon.
In claiming the cost of a medical report, the Claimant’s lawyer said that the disability insurance company taking the place of ICBC in Part 7 benefits, as the Claimant was in an Alberta insured Hertz rental car, asked for the independent medical examination. The defendant refused to pay the cost.
Also worth mentioning the Claimant’s personal injury lawyer hired an adjuster to conduct interviews of two occurrence witnesses as liability had been initially denied. Again, the defendant’s refused to pay this cost.
All these case expenses were ultimately awarded to the Claimant by the Court as reasonable and proper in the context of the personal injury litigation. The court outlined the legal principles which are applicable on an assessment of disbursements (case expenses) :
1. Assessing officer must determine which disbursements were necessarily or properly incurred and allow a reasonable amount for those disbursements.
2. Proportionality under Rule 1-3 must be taken into account when deciding whether a disbursement was necessarily or properly incurred.
3. The time for assessing whether a disbursement was necessarily or properly incurred is when the disbursement was incurred not with the benefit of hindsight.
4. A necessary case expense is one which is essential to conduct litigation; a proper one is one which is not necessary but is reasonably incurred for the purposes of the proceeding.
5. The role of an assessing officer is not to second guess a competent lawyer doing a competent job solely because another lawyer might have handled the matter differently.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.
ISSUE: Should ICBC have to pay all the case expenses if an out of court settlement is reached?