IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130606

Docket: M106208

Registry:
Vancouver

Between:

Chor Shan Tsang
aka Iris Tsang

Plaintiff

And

Lynda Louise Ter
Borg and
John Andrew Ter Borg

Defendants

Before:
The Honourable Mr. Justice McKinnon

Reasons for Judgment

[1]            
On August 21, 2012, I filed written reasons for judgement in respect to
the plaintiff’s claims for damages following a motor vehicle collision. Liability
was not in issue; the trial was limited to an assessment of damages.

[2]            
At para. 54 of those reasons I made an award for future care costs
stating:

54. Dr Kwan opined that the
plaintiff “may need some passive manual treatments such as physiotherapy in the
future with exacerbation of her back pain”. As noted earlier in this judgment,
the plaintiff received 104 treatments from various medical professionals
between January of 2009 and October 2010 directed to physiotherapy, active
rehabilitation, acupuncture, and massage therapy. Given Dr. Kwan’s opinion in
respect to future treatments balanced against my findings in respect to the
“crumbling skull” issue, I award the sum of $5,000 under this heading.

[3]            
The defendants submit that most of these future care costs will be
covered under Part 7 benefits under the Insurance (Vehicle) Regulations,
B.C. Reg. 447/83. However, the defendants also conceded that some of the
modalities referred to in para. 54 of my reasons are discretionary (e.g.
acupuncture) and thus should not be deducted.

[4]            
The defendants rely upon section 83(5) of the Insurance (Vehicle) Act,
R.S.B.C. 1996 c. 231 which requires the court to take into account
the amount of benefits paid or to which the injured person is entitled to under
the regulations and enter judgment for the balance only.

[5]            
It is the plaintiff’s position that there is no guarantee that part 7
benefits will fully cover her future care costs and thus the $5,000 award
should be upheld to guard against that contingency.

[6]            
Part 7 of the Insurance (Vehicle) Regulation sets out the
framework for providing benefits to insured persons injured in an accident. Section
88(1) states:

Where an insured is injured in an accident for which benefits
are provided under this Part, the corporation shall, subject to subsection (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. [Emphasis Added]

[7]            
Payment will only be mandatory if the claim is one “flowing from the
accident”.

[8]            
Section 88(2) provides other benefits whose payments are discretionary. The
insurer will only pay if in the opinion of their medical advisor(s) such treatment
would be of benefit to the plaintiff.

[9]            
At trial the defendants claimed that the plaintiff’s injuries for the
most part were not caused by the accident. In Paskall v. Schelthauer, 2012
BCSC 1859, the court held that the regulations limit the benefits to injuries
that the corporation views flow from the accident. It strikes me as
inconsistent for the defendants to now argue that the plaintiff is entitled to
benefits payable under part 7 and more to the point, raises the distinct
possibility that in future, the corporation will deny claimed benefits as “not
flowing from the accident”.

[10]        
In her affidavit, Shelley Ruggles, the insurance adjuster assigned to
administer the plaintiff’s entitlement, indicates some uncertainty about
whether future treatments are recoverable. She writes, “Further requests for
treatment could be covered under s. 88 of the Regulations”. This
suggests some uncertainty.

[11]        
It is only where there is no uncertainty as to whether the insurer will
accept the treatment and pay the cost that deductions can be made, see Ayles
(Guardian ad litem of) v. Talastasin, 2000 BCCA 87. At bar there is no such
certainty and I therefore resolve the issue in favor of the plaintiff.

[12]        
The award of $5,000 stands.

[13]        
The plaintiff is entitled to her costs of this application.

“The Honourable Mr. Justice
McKinnon”