IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121026

Docket: S099424

Registry:
Vancouver

Between:

Karen Wepryk

Plaintiff

And

Gerhard Juraschka
and
Patricia Isable Juraschka

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Reasons for Judgment

[1]            
On July 5, 2012, I rendered judgment for the plaintiff in this personal
injury case that arose out of a motor vehicle accident that occurred on
December 5, 2008. The reasons are indexed at 2012 BCSC 974. The plaintiff was
awarded damages totaling $83,937, broken down as follows:

Special damages:  $2,937;

Non-pecuniary damages: 
$50,000;

Past wage loss:  $7,000;

Future loss of earning capacity: 
$23,000; and

Cost of future care:  $1,000.

[2]            
The defendants now apply for an order reducing the damages on account of
deductions to be made to the award under s. 83 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, which provides:

83 (1)  In this section and in section 84,
"benefits" means benefits

(a)  within the definition of
section 1.1, or

(b)  that are similar to those
within the definition of section 1.1, provided under vehicle insurance wherever
issued and in effect,

but does not include a payment made pursuant to third party
liability insurance coverage.

(2)  A person who has a claim for damages and who receives or
is entitled to receive benefits respecting the loss on which the claim is
based, is deemed to have released the claim to the extent of the benefits.

(3)  Nothing in this section precludes the insurer from
demanding from the person referred to in subsection (2), as a condition
precedent to payment a release to the extent of the payment.

(4)  In an action in respect of bodily injury or death caused
by a vehicle or the use or operation of a vehicle, the amount of benefits paid,
or to which the person referred to in subsection (2) is or would have been
entitled, must not be referred to or disclosed to the court or jury until the
court has assessed the award of damages.

(5)  After assessing the award of damages under subsection
(4), the amount of benefits referred to in that subsection must be disclosed to
the court, and taken into account, or, if the amount of benefits has not been
ascertained, the court must estimate it and take the estimate into account, and
the person referred to in subsection (2) is entitled to enter judgment for the
balance only.

(6)  If, for the purpose of this
section or section 84, it is necessary to estimate the value of future payments
that the corporation or the insurer is authorized or required to make under the
plan or an optional insurance contract, the value must be estimated according
to the value on the date of the estimate of a deferred benefit, calculated for
the period for which the future payments are authorized or required to be made.

[3]            
Part 7 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83
(the "Regulation") governs payment of "no-fault" accident
benefits. The plaintiff in this case is an insured as defined by s. 78 of
the Regulation, and the defendants therefore submit that she is entitled to
certain benefits payable under ss. 88(1) and (2) of the Regulation, which
provide:

(1)  Where an insured is injured in an accident for which
benefits are provided under this Part, the corporation shall, subject to
subsections (5) and (6), pay as benefits all reasonable expenses incurred by
the insured as a result of the injury for necessary medical, surgical, dental,
hospital, ambulance or professional nursing services, or for necessary physical
therapy, chiropractic treatment, occupational therapy or speech therapy or for
prosthesis or orthosis.

(2)  Where, in the opinion of the corporation’s medical
adviser, provision of any one or more of the following is likely to promote the
rehabilitation of an insured who is injured in an accident for which benefits
are provided under this Part, the corporation may provide any one or more of
the following:

(a)  funds to the insured once
during the lifetime of the insured for the acquisition by the insured of one
motor vehicle equipped as necessary and appropriate to its use or operation by
the insured, the choice of make or model of vehicle to be in the sole
discretion of the corporation;

(b)  funds to the insured once
during the lifetime of the insured for alterations to the insured’s residence
that are necessary to make the residence accessible to and usable by the
insured, the style and cost of the alterations to be in the sole discretion of
the corporation and the alterations to be limited to necessary ramps, a
necessary lift, necessary bathroom alterations and, where the insured is a
homemaker or a person who lives alone, necessary kitchen alterations

(c)  reimbursement to the insured
for the costs of attendant care, other than care provided by a member of the
insured’s family, where the insured has returned to and is residing in the
community but is not capable of performing some or all of the tasks necessary
to sustain an independent lifestyle, the amount of the reimbursement to be
limited to the lesser of

(i)  the monthly cost of a group
residence, including a long term care facility, that would be appropriate to
the care needs of the insured as determined by the rehabilitation team, and

(ii)  the monthly cost of attendant
care required by the insured as a result of injuries from the motor vehicle
accident, the level and type of which will be determined by the rehabilitation
team using the same standards and criteria applied under the Long Term Care
Program of the Continuing Care Division of the ministry of the minister
responsible for the administration of the Continuing Care Act;

(d)  reimbursement to the insured
for costs incurred from time to time by the insured for the purchase and
reasonable repair, adjustment or replacement of one or more of the following
items:

(i)  a wheelchair;

(ii)  a medically prescribed bed
for other than hospital use;

(iii)  bowel and bladder equipment;

(iv)  aids for communication,
dressing, eating, grooming and hygiene;

(v)  transfer equipment;

(vi)  a ventilator;

(e)  funds to the insured for
vocational or other training that

(i)  is consistent with the
insured’s pre-injury occupation and his post-injury skills and abilities, and

(ii)  may return the insured as
nearly as practicable to his pre-injury status or improve the post-injury
earning capacity and level of independence of the insured;

(f)  funds for any other costs the corporation in its sole
discretion agrees to pay.

[4]            
By the terms of s. 83 of the Insurance (Vehicle) Act, the
trial judge is required to estimate the amount of the benefits to which the
plaintiff is or would be entitled under Part 7 of the Insurance (Vehicle)
Regulation and to take that estimate into account before judgment is
entered.

[5]            
In Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.) the
Court of Appeal advised trial judges to be "cautious in their
approach" since the deduction results in a lessening of the award in the
tort action.

[6]            
Benefits that are covered by s. 88(1) of the Regulation are
mandatory, whereas benefits under s. 88(2) are discretionary, depending on
"the opinion of the corporation’s medical advisor". Thus, in Ayles
v. Talastasi, 2000 BCCA 87, the Court of Appeal observed at para. 32:

The risk in deducting too much
from the tort award for discretionary benefits is that I.C.B.C. may ultimately
refuse to pay on items which although found to be compensable in the tort claim
were deducted on the assumption that they would be paid as a no fault benefit.
In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys
a windfall. But here the class of future expense is obligatory, not
discretionary, and so the plaintiff does not stand to lose anything by the
deduction. It is only in circumstances where the classification of the future
cost is unclear or an issue arises whether the item is covered by Part 7 at
all, that some caution is required.

[7]            
In their notice of application, the defendants originally sought an
order reducing the award for damages by the sum of $2,640.40, but during
submissions, the amount of the deduction requested was changed to $1,835.55. The
defendants now submit that $835.55 should be deducted from the award for
special damages, and that the entire amount of the award for the cost of future
care, namely $1,000, should be deducted.

[8]            
The defendants take the position that the following amounts should be
deducted from the $2,937 awarded at trial for special damages:  $124.60 for
four physiotherapy treatments, $688.45 for mileage, and $22.50 for parking.

[9]            
I agree that $124.60 should be deducted for the four physiotherapy
treatments. Although ICBC declined to pay for these four treatments prior to
trial, the plaintiff’s award for special damages included an amount for those
treatments, and that amount is payable under s. 88(1) of the Regulation as
a reasonable expense for medically necessary physical therapy.

[10]        
I also agree that $22.50 for parking should be deducted as a component
of travelling expenses for treatment. Travelling expenses are an integral part
of necessary treatment and as such are a benefit subject to deduction: Petersen
v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).

[11]        
The plaintiff also claimed car expenses for driving to and from medical
appointments at a rate of .50¢ per kilometre, and I awarded the entire amount
of $1,368.90 claimed by the plaintiff on the basis of her calculations. The
defendants originally submitted that the entire amount of $1,368.90 should be
deducted, but now say the deduction should be $684.45. According to ICBC’s
Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use
of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of
the $1,368.90 awarded at trial, or $684.45, should be deducted for driving
expenses.

[12]        
We come then to the cost of future care. The plaintiff was awarded
$1,000 for cost of future care on the basis that this would allow her to work
with a qualified personal trainer. The defendants now submit that the entire
amount should be deducted on the basis that this is either a medically
necessary and reasonable service covered by s. 88(1) or a discretionary
benefit payable under s. 88(2)(e) of the Regulation.

[13]        
I do not agree that the amount for a personal trainer is covered under
s. 88(1) as a medically necessary and reasonable service. It is an option
that may provide some benefit to the plaintiff in terms of pain management, but
she may well decide not to avail herself of this option. That is her choice. Whether
she chooses to use a personal trainer or not, the damage award is nevertheless
payable to her: Tompkins v. Bruce, 2012 BCSC 833 at para. 8.

[14]        
The payment of benefits under s. 88(2) is discretionary. In her
affidavit, Suzanne Deering, the ICBC adjuster responsible for the Part 7 claim,
said that she would, in her discretion, provide funds for an "active rehabilitation
program" in order to "return the plaintiff as nearly as practicable
to her pre-injury status". The award, however, was not earmarked for an
active rehabilitation program to return to plaintiff to her pre-injury status. Rather,
it was to permit her to obtain the services of a personal trainer if she found
it useful and if she chose to do so. I am not satisfied that this $1,000 is
likely to be paid by ICBC to the plaintiff, and I therefore decline to make any
deduction from the award for the cost of future care.

[15]        
Accordingly, the deduction from the total award of damages on account of
s. 83 of the Insurance (Vehicle) Act is limited to $831.55.

The
Honourable Mr. Justice W.F. Ehrcke