In Lines v. Gordon et al. v. ICBC, the Plaintiff was injured in a motor vehicle accident, and subsequently brought an ICBC claim for non-pecuniary damages, loss of income, diminished earning capacity, and future care. The Plaintiff was awarded over $3,000,000.00 in damages, the vast majority of which constituted pecuniary damages. One of the issues for the Court to consider was whether or not to order that the damages be paid in a lump sum amount, or by way of a structured judgment. ICBC’S lawyer argued that there should be a structured judgment in place with respect to the awards for diminished earning capacity, as well as future care. Counsel for the Plaintiff argued that a structured judgment would not be in the Plaintiff‘s best interests. The Court would ultimately rule in favor of the Plaintiff.

 

[17]           One of the main considerations that I must take into account in ordering periodic payments is whether the award would likely be dissipated too quickly absent such an order.  Here, there is no such concern.  Although the plaintiff concedes that he can no longer manage his own financial affairs, his father, with whom he is very close, has been appointed the plaintiff’s committee.  The committee order provides that the plaintiff’s father shall remain as committee until age 70, with the Public Guardian and Trustee assuming committeeship at that point.

[18]           The plaintiff’s father is well-educated, responsible and competent in financial matters.  He intends to hire a professional investment counsellor and to invest the plaintiff’s award in compliance with the Trustee Act as directed by the committeeship order.  I find that, with these arrangements in place, it is extremely unlikely that the award would be dissipated too early.  In this respect, the facts at bar are very similar to those in Yeung v. Au, 2007 BCSC 175, a recent decision of this court.  There, Mr. Justice Tysoe declined to order periodic payments, largely on the basis that the plaintiff’s mother, an accountant, had been appointed her committee and would look after her finances; see paras. 7, 21.

[19]           I conclude that, on balance, it is in the plaintiff’s best interests to be awarded a lump sum for future losses rather than periodic payments for either lost earning capacity or future costs of care.  I therefore dismiss the defendants’ application under s.54 of the Act for an order for periodic payments.

If an injured party is awarded in excess of $100,000 by the Court for pecuniary (financial) damages, then Section 99(1)(a) of the Insurance (Vehicle) Act requires the Plaintiff to be paid periodically, so long as it would be in the best interests of the Plaintiff.

 

In Bransford v Yilmazcan, the Plaintiff was awarded well in excess of $100,000 for pecuniary damages, in this case diminished earning capacity. ICBC’S lawyer applied to have the money paid in monthly installments, claiming that this would be in the best interests of the Plaintiff. The Court refused to grant such an Order, commenting that:

 

[9]               There are additional general principles to consider.  In Lomax v. Weins, 2004 BCSC 1051 (CanLII), 2004 BCSC 1051, the court noted that one of the “most important principles” in respect of an award of damages, is that the plaintiff has property over the award and is free to do with that money as she likes.  This “most important principle”, as described by the Supreme Court of Canada in Townsend v. Kroppmanns, 2004 SCC 10 (CanLII), 2004 SCC 10, [2004] 1 S.C.R. 315 at para. 18, should be kept in mind in applying s. 99.  That section only permits a court to interfere with this “most important principle” if it is in the best interests of the plaintiff to do so: Lomax at para. 64.

 

[10]           Another principle to keep in mind is that it is up to the defendant to produce a specific structured judgment proposal for the court to consider.  It is not the court’s function to draft the terms of a structured judgment: Lee v. Dawson, 2006 BCCA 159 (CanLII), 2006 BCCA 159 at para. 35, leave to appeal to SCC refused,[2006] S.C.C.A. No. 192. 

 

[51]         The defendants argued that since they were only seeking a partial structured judgment, rather than a structured judgment that applied to the whole of the future damages award, the plaintiff will be left with sufficient flexibility to meet any fluctuating needs.  I am not convinced this is an entirely fair approach.  The future care award is allocated for the plaintiff’s future care needs.  Normally a person uses income to pay for extraordinary living expenses or to make choices such as repayment of debt.  If the loss of future earning capacity award is structured, the plaintiff will lose this flexibility. Such a loss of flexibility is not cured merely because only a partial structured judgment is sought.

 

[52]         In this case, a factor that weighs heavily is the fact that the proposed structured judgment will run for 38 years.  That means, if a structured judgment is ordered, that for 38 years of this plaintiff’s life, she will not have the ability to make her own choices about her investments or her needs, beyond what she can do with receipt of the monthly periodic sum.  None of the evidence proffered by the defendants suggested that a fixed rate of return of 2.5% would be a safe investment over 38 years.  If the financial landscape changes drastically in 25 years, the plaintiff will not have the flexibility to adapt if she is subject to the structured judgment.  However, if the financial landscape changes drastically in the next 25 years, and she has been fiscally conservative in managing a lump sum award of damages, she will have the flexibility to deal with the change in circumstances.

 

[53]         I come back to the principle enunciated in Lomax, namely that a damage award is the plaintiff’s own property.  Underlying this point, in my view, is the common sense observation that a central aspect of one’s dignity and humanity is the ability to control one’s own destiny by the freedom to make one’s own choices.  Where a plaintiff has been injured through the negligence of defendants, such that she has suffered a significant loss of earning capacity, as here, she has already lost some personal dignity in that her future choices have been limited due to her injuries.  In this case the plaintiff would lose additional dignity and autonomy if her ability to make her own decisions about her damages award was taken away.

 

[54]         Having observed the plaintiff’s evidence at trial and on this hearing before me, I was impressed with her capabilities.  I observed that she was a person who was a “go-getter” before her injuries, and she remains someone with an independent and strong personality.  I have considered all of the factors referred to above, and weighed the risks and benefits of a structured judgment against the risks and benefits of a lump sum award.  I conclude that an order that the loss of future earning capacity award be structured would not be in the best interests of this plaintiff.