Kibsey v. Wielki,


2008 BCSC 880

Date: 20080707
Docket: M053271
Registry: Vancouver


Terry Kibsey



Edmond Wielki, Violet Marie Wielki and
Marie Louise La Framboise



Marie Louise La Framboise, Edmond Wielki
and Violet Marie Wielki

Third Parties

Before: The Honourable Madam Justice Humphries

Reasons for Judgment

Counsel for the plaintiff

D.J. Renaud

Counsel for the defendant Wielki

J. Marquardt

Counsel for the defendant La Framboise

A. Kask

Date and Place of Trial/Hearing:

June 13, 2008


New Westminster, B.C.

[1]                Following a jury trial, the plaintiff received awards for special damages and future care in the amounts of $4,400 and $32,000 respectively.  The verdict was rendered on May 16, 2008.  The plaintiff’s motion for judgment  was adjourned to allow counsel to consider the effect of deductions for Part 7 benefits.

[2]                Counsel for the defendant seeks a deduction pursuant to s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (formerly s. 25 of the Insurance (Motor Vehicle) Act as amended by the Insurance (Motor Vehicle) Act S.B.C. 2003 c. 94, 2. 1, effective June 1, 2007), of estimated benefits that the plaintiff is or may be entitled to receive pursuant to Part 7. 

[3]                Section 83(1) provides: 

In this section and in section 84, “benefits” means benefits

(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.

[Section 1.1 provides that “benefits” means “the prescribed benefits.”]

(2)        A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released his claim to the extent of the benefits.

(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 is entitled to enter judgment for the balance only.

[4]                Section 88(1) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83 (the “Regulations”) requires the corporation to pay as benefits:

all reasonable expenses incurred by the insured as a result of the injury for necessary medical, surgical, dental, hospital, ambulance or professional nursing services, or for necessary physical therapy, chiropractic treatment, occupational therapy or speech therapy or for prosthesis or orthosis. 

[5]                Section 88(2) of the Regulations allows the corporation to pay for other benefits that, in the opinion of their medical adviser, is likely to promote the rehabilitation of the insured.

[6]                In the present case, Mr. Kibsey claimed as part of his special damages, $241.19 for a “clam shell” brace.  Counsel for the defendant says this is an expense the corporation must pay for, and it should therefore be deducted from the jury award under that heading.

[7]                As for cost of future care, Mr. Kibsey sought damages of approximately $78,500.  As the jury awarded an unparticularized amount of $32,000, the defendant says a fair estimate of the amount Mr. Kibsey may receive under s. 88(2) is half that, bearing in mind that the purpose of the section is to ensure the corporation and not the defendant pays for benefits, and that the plaintiff should not recover double.  The defendant fairly points out that the court should be cautious in its estimation as the deduction results in a lessening of the jury’s award on the tort action (see Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (B.C.C.A.)).

[8]                Counsel for the plaintiff has commenced an action for Part 7 benefits.  He has been unable to conduct a discovery of the adjuster yet.  However, he submits that within this claim under the insurance contract, he is bound to be met with s. 96 of the Regulations, and will be unsuccessful in obtaining any benefits. 

[9]                Section 96 provides:

Restrictions on benefits

The corporation is not liable to pay benefits under this Part in respect of the injury of a person

(f)         whose injury…is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this part.

[10]            According to the evidence at trial, Mr. Kibsey suffered from a pre-existing condition of ankylosing spondylitis, which causes fusion of the spine.  The accident prevented him from being able to carry on with the level of activity necessary to keep the disease under control.  The result was that his general healthy lifestyle, enjoyment of life, and ability to carry on in his employment were significantly affected. 

[11]            Unlike the tort consideration of whether the accident was a “materially contributing factor” to Mr. Kibsey’s post-accident state, the plaintiff must, in his Part 7 claim, deal with the contractual test of whether the underlying disease indirectly caused the injury.

[12]            Counsel for the plaintiff takes the position that no benefits will be payable under Part 7; therefore, nothing should be deducted from the jury award.  In the alternative, the estimate under s. 83 should be adjourned pending the decision of ICBC on the Part 7 claim.

[13]            Counsel for the defendant acknowledges the difficulty arising from a consideration of s. 96, but submits that it is simply a factor for the court to take into account when estimating the deduction.

[14]            The plaintiff referred to Mawji et al v. Insurance Corporation of British Columbia, 2001 BCSC 1610, a case in which the plaintiff, who had settled her tort claims, sued for Part 7 benefits.  The defendant Corporation sought to take advantage of the exclusion offered by s. 96 on the basis that the accidents in which the plaintiff had been involved had caused her osteoarthritis to become exacerbated to the point where the disease seriously handicapped her.   Because the plaintiff’s continuing condition had been caused “in part and indirectly” by her underlying disease, the court allowed the defendant to invoke the exception under s. 96 and dismissed her claim.

[15]            The reasoning in that case is applicable here.  Mr. Kibsey’s current and ongoing disability is caused in part and indirectly, even to some extent directly, by his ankylosing spondylitis.  Therefore, the chance of his obtaining Part 7 benefits to cover any of the future care costs is very unlikely.  I would make no deduction from the jury’s award for the cost of future care. 

[16]            The clam shell brace was claimed for as a special damage.  It was necessary solely as a result of the accident and used only in the first few weeks after it.   There was no evidence that it was required because of injuries caused directly, indirectly, or in part by Mr. Kibsey’s underlying condition, unless it could be inferred that the brace was required because Mr. Kibsey was more fragile because of his fused spine, an inference that is not unreasonable.   In Mawji, the court decided against a narrow interpretation of the word “injury” in s. 96; that is, “injury” does not refer to consequences resulting from the initial blow received during the accident but rather to the “continuing injurious condition of the claimant.”  Although in Mawji, the benefits claimed went beyond the consequences of the initial blow, the court did not distinguish between those benefits that might have been claimed immediately after the accident and those that followed.  On the basis of the reasoning in Mawji, the plaintiff would not be successful in a claim for the clam shell brace in its Part 7 action either.  Therefore there will be no deduction for that amount.

[17]            Although the plaintiff suggested as an alternative waiting for the decision of ICBC on this issue, presumably through the discovery of the adjuster, I see no point in further delay and expense, given the evidence at trial regarding the direct and indirect effect of the ankylosing spondylitis on Mr. Kibsey’s “continuing injurious condition.” 

[18]            In the result, there will be no deduction for benefits pursuant to s. 83 of the Insurance (Vehicle) Act.  As I understood the discussions between counsel during submissions, they have agreed that the advance on the tort award will be deducted from the amount eventually recovered, and that applicable interest begins to run from the jury verdict.  The plaintiff’s motion for judgment is therefore granted, taking into account these reasons.

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries