Special damages

Generally speaking, special damages are the out of pocket expenses incurred by the claimant prior to trial.
 
This page provides an overview of the theory of special damages, and then lists types of special damages that often arise in ICBC injury claims.
 
Theory of special damages
 
Special damages are a form of pecuniary (i.e. monetary) damages that are incurred before trial and are capable of precise calculation. Special damages can be contrasted with “general damages”, also called “non-pecuniary damages”. Although the labels are not necessarily intuitive:
  • “special damages” are those which are capable of precise monetary calculation (e.g. out of pocket cost for physiotherapy); and
  • “general damages” are those that are not capable of precise calculation (e.g. compensation for loss of enjoyment of life). 
 
Special damages have been judicially described as follows:
 
[S]pecial damages are those losses which…have in fact been caused by the wrong alleged, i.e., those damages which have crystallized and are consequently ascertainable and capable of exact computation…
(Maglio Industries Ltd. v. School District No. 7, 1990 CanLII 1497 (BCSC) citing McLachlin and Taylor, British Columbia Court Forms (Toronto: Butterworths, 1985).
 
Similarly:
 
[D]amages which can be claimed and proved as “special damages” are those which permit of exact computation at a definite sum of money. Where the element of continuance of health, employment, or disposition to work enter into the computation, damages are “general” and not “special”.
(Wersch v. Wersch, [1945] 2 DLR 572 (Man. C.A.)).
 
However, courts have acknowledged that drawing the line between special and general damages can be difficult, and that it generally does not matter where the line is drawn so long as the claimant receives the right amount of overall compensation:
 
I see no need to enter into the esoteric debate as to whether a claim for past loss of earnings is a claim for general or special damages… The term “special damages” may have different meanings in different contexts and, in most cases, the distinction between general and special damages will not matter…
(Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 32).
 
In most cases special damages can simply be considered to be all out of pocket expenses incurred by the claimant before trial. Because they are actual out of pocket expenses incurred they are capable of exact calculation and indeed claimants should keep all receipts and other paperwork to prove the amount of the special damages incurred.
 
Almost all cases involving special damages will also involve general damages: 
 
It would be hard to conceive of any situation where special damages such as the cost of prescriptions, taxis, eyeglasses, wheelchairs, etc. would be the only claim, since to incur these items the plaintiff must have suffered damages which were general in their nature, such as pain, injury and loss of enjoyment of life.
(Hope Hardware and Building Supply Co. Ltd. v. Fields Stores Limited, 1978 CanLII 254 (BCSC)).
 
Ordinary principles regarding recovery of damages apply to special damages i.e. the amounts claimed must reasonable and must have been caused by the accident:
 
I am satisfied that the amounts claimed for special damages are reasonable and appropriate in the circumstances of this case and are caused by the injuries suffered by Ms. Sylte in the accident.
(Sylte v. Rodriguez, 2010 BCSC 207).
 
Also, as for all types of tort damages, special damages can only be recovered to the extent the claimant succeeds in proving that the defendant is liable for causing the accident. If the plaintiff is found partially responsible for causing the accident the special damages recoverable will be reduced proportionately.
 
Types of special damages
The following describes some of the different types of special damages that commonly arise in ICBC personal injury claims. The examples given are not exhaustive and the special damages claimed in each case will be different.
 
Medical expenses
Out of pocket medical costs are a common form of special damages in ICBC personal injury claims:
  • Medication costs.
  • Portion of physiotherapy, chiropractic, massage therapy etc. charges not covered under Part 7.
  • Cost of mobility assistive devices e.g. crutches, wheelchair.
  • Medical supplies such as bandages, splints, protective guards, etc.
  • Rehabilitation costs e.g. exercise ball, gym membership, etc.
  • Transportation costs related to the accident e.g. mileage, taxi, public transport cost of attending medical appointments to treat accident related injuries. 
 
Property damage costs  
Amounts on account of property damage can be claimed as special damages. Typically vehicle repair or replacement costs will be the most significant special damage items. Where the claimant had first party collision insurance such costs will likely be paid under that policy and not be claimable as special damages, except perhaps for the insurance deductible (typically $300).
 
In Doyon v. I.C.B.C., 2004 BCSC 565 the court confirmed that the insurance deductible paid by the claimant can only be recovered if the claimant is able to prove some other person at fault for causing the accident:
 
As there was no other driver at fault in the accident, the Plaintiff could not look to the Defendant (as the insurer of another driver) or any other person for reimbursement of the deductible.
(Doyon v. I.C.B.C., 2004 BCSC 565 at para. 4).
 
It is not only vehicle damage costs that can be claimed as special damages on account of property damage; amounts can also be claimed for damage to bicycles, clothing, or other property damaged as a result of the accident.
 
Accelerated depreciation
Accelerated depreciation is the reduction in vehicle value that occurs when a vehicle has been in an accident and been repaired:
 
Accelerated depreciation, in the context of this case, is the loss of market value suffered by a motor vehicle, by reason of the fact that it has been damaged, and notwithstanding the fact that such damage has been repaired.
(Squire v. Insurance Corp. of British Columbia, 1990 CanLII 711 (BCCA)).
 
Accelerated depreciation may be claimed as special damages as part of a tort claim. In Cummings v. 565204 B.C. Ltd., 2009 BCSC 1009 the plaintiff was awarded accelerated depreciation of $7,600 after $13,000 worth of repairs were done to her vehicle: 
 
The cost to repair the Nissan following the June 2006 motor vehicle accident was in excess of $13,000. Ms. Cummings tried to trade the Nissan in following the accident but was told by Dean Dodd, the lease manager at the Richmond Honda dealership, that the dealership is not interested in a vehicle that had sustained more than $5,000 in damage in an accident. Mr. Dodd confirmed that the dealership does not accept cars for trade that have in excess of $4,000 damage.
 
Mr. Haffenden testified that the owner of a vehicle that has been involved in an accident where the damages exceed $2,000 must declare the damages, whether selling privately or to a dealer. In his opinion, the Nissan would have suffered a depreciation of approximately 20% or $7,600 on the date of the accident as a result of the damage it sustained.
 
(Cummings v. 565204 B.C. LTD., 2009 BCSC 1009 at para. 71-72).
 
The court confirmed that it is not necessary to have sold the vehicle in order to claim accelerated depreciation:
 
It is not necessary for a plaintiff to sell a vehicle in order to make out a claim for accelerated depreciation. The assessment of a claim for accelerated depreciation should be made on the day of the accident:  Reinders v. Wilkinson (1994), 51 B.C.A.C. 230.  
(Cummings v. 565204 B.C. LTD., 2009 BCSC 1009 at para. 73).
 
Special damages and Part 7
Certain out of pocket costs (e.g. the cost of physiotherapy treatments) may be at least partially covered under Part 7 (see Part 7 section of the website) and claimants must be sure to claim such amounts under Part 7 because amounts recoverable under Part 7 are generally not recoverable in a tort action.
 

 

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