Limits on expert reports, recovery of disbursements a troubling trend

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By Kirsten McMahon

Changes introduced by British Columbia and Alberta to reduce the cost, complexity, and delay associated with personal injury claims can impede access to justice for motor vehicle accident victims, says Settlement Lenders President, Larry Herscu.

“It’s concerning to see this wider trend of limiting experts and expert reports in personal injury claims,” he adds. “Experts frequently deal with the complex and technical questions involved in motor vehicle accident disputes.”

In Alberta, Bill 41: the Insurance (Enhancing Driver Affordability and Care) Amendment Act, 2020 received royal assent late last year. By early 2022, the following changes will come into effect in stages:

  • A limit to the number of experts involved in motor vehicle damages proceedings;

  • The pre-judgement interest rate on pain and suffering damages will be a floating rate that starts to accumulate when written notice of an injury claim is given to an insurer or when a Statement of Claim is served;

  • Allow not-at-fault drivers to call their own insurer to cover car repairs, eliminate red tape between insurers, and reduce costs incurred to pursue damages from third parties.

Limiting the experts involved in a claim based on the claim’s value is disconcerting, says Herscu.

“The legislation limits claims under $100,000 to one expert, and claims over $100,000 are limited to three experts unless there is the consent of all parties to add one or more additional experts at trial,” he says.

“Depending on the injuries sustained, a plaintiff is at a severe disadvantage in defending their rights if they are limited to one or two expert reports,” Herscu says. “A claim for future care costs for a plaintiff with a traumatic brain injury, for example, might require expert opinions from a physiatrist, neurologist and psychiatrist.”

British Columbia made a similar move by amending the Evidence Act to cap disbursements at 6 per cent of the overall value of a motor vehicle accident claim.

“The new law, enacted in February, limits how much Insurance Corporation of British Columbia (ICBC) must cover for a plaintiff’s disbursements. The legislation states ICBC only needs to cover six per cent of disbursements of the total settlement or trial award,” Canadian Lawyer reports.

“For example, if a case settles for $40,000 total, and the costs to prosecute your claim equal $5,000, ICBC will only pay $2,600 of that $5,000,” the magazine states.

Herscu says these limits create a challenging position for plaintiff personal injury lawyers and their clients.

“It puts them in an impossible situation. A plaintiff may be cautious in spending on experts — and thereby not calling the necessary evidence to prove their case,” he says. “It’s worth noting that ICBC is not subject to the same limits on disbursements.”

As well, ICBC can force the plaintiff to present expensive evidence or send them to a slew of medical experts. Canadian Lawyer notes a recent case — Parent v. Krystal, 2021 BCSC 988

— “in which ICBC sought to have the victim attend audiology testing and a vocational assessment. The plaintiff’s lawyer opposed ICBC’s motion, but the Master ordered the injured victim to attend the medical examinations.”

This creates an unequal playing field for a claimant trying to resolve a dispute about their entitlement to, or amount of, statutory motor vehicle accident benefits and is unable to work due to their injury.

“If a plaintiff knows that trying to prove their claim could significantly deplete their award, they may feel pressured into settling prematurely,” Herscu says. “

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