Summary

Keywords

Torts - Negligence, Damages.

Summary

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Torts – Negligence – Damages – Health care costs – Subrogated claim – Province bringing action against tortfeasor to recover health care costs incurred by injured party – Whether Court of Appeal erred in concluding that the Health Care Costs Recovery Act, S.B.C. 2008, c. 27 “does not require the Province to choose one course” of recovering health care costs, in holding applicant to deemed admissions from a previous action and in holding applicant to a higher standard than provincial government with regard to res judicata.

On June 2, 2007, while visiting friends who were tenants in a building owned by the applicant, Mr. Tekavec, Mr. Jack leaned on a defective railing and fell three stories from the balcony, sustaining injuries. He commenced an action against Mr. Tekavec, claiming damages pursuant to the Occupiers Liability Act, R.S.B.C. 1996, c. 37. He also notified the Province of his claim as required by s. 4 of the Health Care Costs Recovery Act, S.B.C. 2008, c. 27 (the “Act”). He was awarded damages of approximately $322,000 based on the trial judge’s finding that Mr. Tekavec was aware of the defective balcony railing and failed to inspect and repair it. The respondent, British Columbia, did not intervene in the action but later brought a separate action against Mr. Tekavec under s. 8 of the Act, seeking recovery of $68,061.46 for Mr. Jack’s health care costs. In response to the civil claim, Mr. Tekavec served a response and a third party notice against Mr. Jack and the two tenants of the apartment, alleging that their negligence was the sole cause of the injuries. The Province moved to strike the response to the civil claim and the third party notice on the basis that they were barred by estoppel. Mr. Tekavec cross-applied to strike the notice of civil claim on the ground that recovery for health care costs had been raised and decided in the original trial and that the Province was estopped from pursuing it.