Can a tortfeasor benefit from the sacrifices made by a plaintiff in obtaining insurance to provide for lost wages?

In Cunningham v. Wheeler, 1994 CanLII 120 (SCC), [1994] 1 S.C.R. 359 at 401, Cory J. writing for the majority explained the principle underlying the private insurance exception to damage entitlement: Recovery in tort is dependent on the plaintiff establishing injury and loss resulting from an act of misfeasance or nonfeasance on the part of the defendant, the tortfeasor. I can see no reason why a tortfeasor should benefit from the sacrifices made by a plaintiff in obtaining an insurance policy to provide for lost wages. Tort recovery is based on some wrongdoing. It makes little sense for a wrongdoer to benefit from the private act of forethought and sacrifice of the plaintiff.

The private insurance exception is often challenged in the context of special damages. For example, in Napoleone v. Sharma, 2008 BCSC 1746, Bruce J. was unable to apply the private insurance exception to an award of special expenses because there was no evidence of any consideration passing between the plaintiff and employer in respect of the plaintiff’s extended health benefit. At paras. 9-12, Her Ladyship wrote: