The legal causation test for statutory accident benefits is the “but for” test

Despite language indicative of the “material contribution” causation test, the legal causation test for statutory accident benefits is the “but for” test.

Insurance law – Automobile insurance – Benefits – No-fault accident benefits – Medical and rehabilitation expenses – Causation – test – Evidence – Standard of proof – Statutory provisions – Statutory interpretation

Kozhikhov v. Insurance Corp. of British Columbia, [2015] B.C.J. No. 2785, 2015 BCCA 515, British Columbia Court of Appeal, December 17, 2015, M.E. Saunders, D.M. Smith, and A.W. MacKenzie JJ.A.

The insured was injured in a motor vehicle accident. The insurer refused to reimburse the insured for certain medical treatment expenses claimed under Part 7 of the Insurance (Motor Vehicle) Regulation. It said there was evidence showing the insured’s injuries were caused directly or indirectly by a pre-existing condition and so he was disentitled to the benefits. At trial, the judge ordered the insurer to pay the Part 7 benefits claimed. The insurer appealed.

The court of appeal upheld the trial judge’s decision. It found that, while the trial judge referred to a “relaxed standard of proof”, he correctly applied the balance of probabilities standard and correctly applied the “but for” test for causation. The court of appeal agreed with the insurer that the trial judge erred in interpreting section 101 of the Regulation as limiting the evidence and timeline of obtaining evidence on which the insurer could rely. However, the court found the error had no effect on the outcome of the appeal.

In dismissing the appeal, the court held the “but for” test for causation is the correct test for causation for Part 7 benefits, and the material contribution test proposed by the insurer was only to be applied in special circumstances. The court held the “but for” test applied even though the Regulation excluded entitlement to benefits in respect of injuries “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 were provided under the Regulation. The court upheld the trial judge’s reasoning that the insurer was required to establish the treatment was unnecessary “but for” the pre-existing sickness or disease. The legal causation test for Part 7 benefits was the same as in tort.

This case was digested by Djuna M. Field and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at dfield@harpergrey.com or dpilley@harpergrey.com or review their biographies at http://www.harpergrey.com.

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