In Tompkins v. Meisters the appellants appealed a trial decision respecting the deductibility of certain “Part 7” benefits under s. 83 of the Insurance (Vehicle) Act

Court of Appeal varies deductions of Part 7 benefits from award for loss of earning capacity

Insurance law – Automobile insurance – Statutory provisions – Loss of earning capacity benefits – Deductibility – Future benefits – Practice – Leave to appeal

Tompkins v. Meisters, [2023] B.C.J. No. 1631, 2023 BCCA 335, British Columbia Court of Appeal, August 17, 2023, H. Groberman, J.J.L. Hunter and P. Abrioux JJ.A.

The appellants appealed a trial decision respecting the deductibility of certain “Part 7” benefits under s. 83 of the Insurance (Vehicle) Act.

The respondent insured was injured in a motor vehicle accident. Liability was admitted by the appellants. At trial, the respondent was awarded damages for loss of earning capacity and costs of future care, among other heads of damages. The appellants applied under s. 83 to reduce the awards by the amount of no-fault benefits provided (or that would be provided) by the Insurance Corporation of British Columbia.

The trial judge applied certain contingencies to the deductions sought. Specifically, she reduced the amount deducted in respect of future earning capacity by 50% on the basis that it was not certain that the respondent would continue to receive income replacement into the future. The Court of Appeal held this contingency was not grounded in the evidence and reduced the contingency to 20%.

The trial judge reduced the deduction applicable to the future care award by 20% based on certain contingencies relating to the risk that the respondent would not receive benefits in the future. The Court of Appeal declined to interfere with this deduction.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at celder@harpergrey.com.

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