Recovery of healthcare costs for maritime personal injuries in British Columbia - International Law Office

In British Columbia, tort feasors liable for personal injuries suffered in a marine context are now also subject to claims by the provincial government for the recovery of healthcare costs expended (past and future) by the Ministry of Health relating to the injury pursuant to the Health Care Costs Recovery Act ((RSBC) 2008 c27).

As a coastal province which also has many freshwater lakes and rivers, British Columbia relies heavily on the marine transportation of people for commercial and recreational purposes. Maritime personal injuries arise:

• from the use of pleasure boats (eg, from collisions/allisions, while water skiing or tubing, or as a result of hard navigation manoeuvres);
• from slips and falls at marinas and docks; and
• on small and large commercial passenger vessels, including chartered fishing boats, dinner cruise boats, ferries and whale watching boats.

The British Columbia Supreme Court recently determined an important point on when the Health Care Costs Recovery Act applies retrospectively.

In Gosselin v Shepherd (2010 BCSC 755), the plaintiff applied for an order to amend her statement of claim to add a claim pursuant to Section 2 of the Health Care Costs Recovery Act to recover the cost of healthcare services provided to her by the British Columbia government. She was injured on June 7 2005 and commenced the action on March 1 2007. The act came into force on April 1 2009. The defendants opposed this amendment, on the basis that the plaintiff was not allowed to make a claim retrospectively under the act for injuries suffered before it came into force.

In deciding this issue in favour of the defendants, Justice Sewell made several observations on how the act operates:

• The act creates a statutory right for the government to recover its expenditure of healthcare costs.
• Section 3(1) obligates a beneficiary who begins a legal proceeding against a wrongdoer for damages for personal injury or death to include a healthcare services claim.
• Section 6(1) allows the government to assume control of the healthcare services claim portion of any proceeding under Section 3 and is subrogated to any right which a beneficiary has to recover past and future costs of healthcare services under Section 7.
• Section 8 grants the government a direct cause of action against the wrongdoer for the recovery of past and future costs of health services.

The important sections for retrospective claims under the act are Section 8 and Section 24(1). Section 24(1) relieves a litigant from the mandatory provisions in Section 3 for actions commenced before the act came into force. However, it still allows the government to make a claim under Section 8 for the costs of these injuries. Under Section 8, this claim must be made within six months of the expiry of the appropriate limitation period for the action. Therefore, for most personal injury actions which are subject to a two-year limitation period, the government would be able to make a direct claim for the cost of health services for any injury occurring after October 1 2006 (two and a half years before April 1 2009). Any injury before this date would not be covered under the act.

In Gosselin, the plaintiff was denied her amended claim for retrospective health services costs. The injury was suffered before October 1 2006, so the government was unable to make a direct Section 8 claim. The court reasoned that since the obligation provisions in Section 3 did not apply to claims made prior to the act and plaintiffs have little personal interest in these claims, it would be unfair to allow the presumably disinterested whim of a plaintiff to decide whether a defendant should be exposed to potentially very expensive healthcare costs retrospectively.

This decision recognises that the act is a cost collection scheme for the benefit of the provincial government and not for the advancement of losses actually suffered by the plaintiff, and affirms that the only way to collect costs for injuries suffered before this act came into force is through the limited provisions of Section 8.

The act is restricted in its scope. It does not apply to matters where the injuries are compensable under the provincial motor vehicle liability insurance plan or the workers' compensation plan. Therefore, its application is generally restricted to matters involving injuries caused in the context of an occupier's liability or from a maritime tort.

While the field of an occupier's liability is a matter of provincial law, maritime torts are generally governed by federal law; whenever there is a conflict between the two jurisdictions, federal laws will prevail.

Future areas of conflict between the federal laws governing maritime matters and this provincial healthcare cost recovery scheme will most likely relate to whether this head of damage (provincial healthcare costs) can be claimed when alleging a maritime tort and the interplay with federal legislation providing for limitation of liability and comparative fault.

For further information on this topic please contact John Bromley or Shelley Chapelski at Bull, Housser & Tupper by telephone (+1 604 687 6575), fax (+1 604 641 4949) or email (jwb@bht.com or sac@bht.com).