Special Damages

What Are Special Damages?

For people who have suffered a significant injury due to the negligence of another and have a personal injury claim, there are always associated costs, whether it is for medical care or something else. These out-of-pocket expenses are called special damages.  If they relate to the accident/incident which caused your injuries, special damages are recoverable at the end of your lawsuit.

Special damages are out of pocket expenses that, but for the accident, you would not have incurred.  These can be anything that is reasonably incurred and, but for the accident would not have been required.  This include the costs for medicine, medical or therapeutic equipment, medical treatments (as discussed below), and parking for medical appointments amongst others. For any special costs incurred make sure you keep a receipt or invoice as you will need this documentation to prove your losses at the end of your claim.

Therapeutic & Medical Treatment Costs in BC

In British Columbia most medical care is provided at no charge through the Medical Services Plan (MSP).  Therapeutic services however, such as physiotherapy, registered massage therapy, chiropractic therapy, acupuncture, counseling, and other therapeutic services, are not paid for under MSP, so you will have to pay for these services directly and seek compensation at the end of your claim from the insurance company for these costs or, alternatively, utilize private benefits as discussed below.

If your medical costs are covered under MSP then the Health Care Cost Recovery Act [SBC 2008] CHAPTER 27 applies to your claim. This Act allows a person injured due to another’s negligence to make a claim on behalf of the British Columbia Ministry of Health to seek back any amounts paid out by the Ministry under MSP, as well as any future costs the Ministry may have to pay out with respect to the claim. This ensures the BC public’s tax dollars aren’t being spent to cover the cost of someone’s negligent actions.

There are some exceptions to the application of the Health Care Cost Recovery Act, notably when another Crown Corporation is involved in the accident, like ICBC  The Health Care Cost Recovery Act does not apply to motor vehicle accidents with ICBC coverage.  However an accident like a slip and fall, or a animal attack, would trigger the application of the Health Care Cost Recovery Act.

Make Use Of Your Benefits

If you have private extended health care benefits that will cover the cost of therapeutic services make sure you make use of them! This will allow you to save money at a time when you may be limited or completely disabled from working.

Some of companies providing extended health benefits in British Columbia are:

  • Pacific Blue Cross
  • Sunlife
  • Manulife
  • Green Shield Canada

If your extended health care benefits and use them for treatment related to an accident, they will likely have what is called a right to subrogation on your claim. What this means is that your private health carrier will have the right to have any amounts they paid out on your claim paid back to them or subrogated.  The logic behind this is that the person that caused your accident (called the tortfeasor) should not benefit off of the years of monies you paid into your extended benefits and nor should your insurer have to be out of pocket due to the negligence of someone who has not paid for their coverage.

If you are going to settle your personal injury claim make sure you have a final accounting from your extended health provider and their agreement on the final amount they are seeking. If you settle your claim without accounting for your extended health provider’s subrogated claim, you may still have to pay your extended health provider back anyways, without any further monies from an insurance company. An experienced personal injury lawyer can make sure any obligation owing to an extended health provider is dealt with prior to resolving your claim.

What Is Not Recoverable As A Special Damage?

Certain out of pocket expenses are not recoverable as special damages.  For some denied expenses they can be too extravagant and for others they can be viewed as “too remote” in law for recovery.

One example of an expense which is “too remote” at law for recovery is interest on loans, including credit card debt. While it might seem obvious that if a person is restricted in their ability to work, or completely disabled from working, due to an injury, that using credit cards or other forms of advances/loans to deal with day-to-day expenses would be a logical step, the interest that accrue on credit cards and other loans are not currently recoverable at law for being too remote.  There are numerous legal cases which go in depth into the rationale behind this, but unfortunately credit card and other loan interest is not recoverable as a special damage.

You also need to be reasonable in what you spend your money on if you want to claim those amount back at the end of your claim. The case law is clear that you are only entitled to what is reasonably necessary for special damages and that you are not entitled to take the “Cadillac” approach of buying the most expensive treatment/etc. available.

An Experienced Personal Injury Lawyer Can Help

There is a large area of law which determines if your special damages are recoverable at law and you may be surprised as to what is and what is not recoverable. Contact an experienced personal injury lawyer at Taylor & Blair LLP today for free advice on your personal injury claim and special damages.