Boota v. Dhaliwal,


2008 BCSC 373

Date: 20080328

Docket: M86978

Registry: New Westminster


Gurinder Singh Boota



Manvir Singh Dhaliwal and

Dhaliwal Brothers Trucking Ltd.


Before: The Honourable Madam Justice Loo

Reasons for Judgment

Counsel for the Plaintiff

C. H. Murchison and

J. A. Thomson

Counsel for the Defendants

R. W. Collings and

N. M. G. Chantler

Date and Place of Trial/Hearing:

31 January 2008


New Westminster, B.C.

[1]                There are two issues on this application:

1.         whether judgment should be entered in accordance with the verdict of the jury; and

2.         whether the jury’s award for cost of future care should be deducted from the judgment under s. 25 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (as amended) (the "Act").


[2]                On October 22, 2003, the plaintiff Gary Boota was driving a Ford Explorer through an intersection when a semi-tractor trailer driven by the defendant Manvir Singh Dhaliwal ran a red light and smashed into him.  The tractor trailer was owned by the defendant Dhaliwal Brothers Trucking Ltd.  Liability was admitted after the trial commenced.

[3]                Mr. Boota suffered a concussion, injuries to his neck and lower back, and psychological problems, including a major depressive episode. He continues to suffer from chronic pain disorder and depression.

[4]                At the time of the accident, Mr. Boota was a 28 year old Corrections Officer at the Surrey Pre-Trial Centre.  He was in excellent physical condition.

[5]                He attended what has been referred to as a work hardening program in March and April 2004, but because of cognitive problems resulting from the accident he could not return to work until September 2004.  In May 2005, he was dealing with an inmate when he was injured and unable to work.

[6]                Mr. Boota attended a second work hardening session in July and August 2005 and returned to work.  However, his psychological problems gradually worsened.  His last day of work was December 25, 2005.  His job is still open to him, but his employer has not allowed him to return to work because of his physical and psychological condition.  He has been unsuccessful in pursuing other work through his union.

[7]                At the time of the accident, Mr. Boota was working on a part-time basis, although the number of hours he worked generally amounted to almost full-time work.  Because of the time he had to take off work due to the accident, he was ineligible for long term disability.

[8]                On November 30, 2007, following a 10 day trial, the following questions were posed to and answered by the jury:

Disregarding any monies received to date from any source:

1.         It has been agreed that the past income loss suffered by the Plaintiff for the period of October 22, 2003 to September 15, 2004 is the sum of $36,572.58.

2.         It has been agreed that the income earned by a Corrections Officer working full-time hours from January 1, 2006 to the date of trial is the sum of $93,000.00.

What amount do you assess for past income loss of the Plaintiff as a result of the motor vehicle accident of October 22, 2003 for the period from January 1, 2006 to the date of trial.

$          32,550

3.         It has been agreed that the out of pocket expenses (special damages) incurred by the Plaintiff from October 22, 2003 to the date of trial are $17,673.86.

4.         At what amount do you assess damages sustained by the Plaintiff under the following heads of damages as a result of the motor vehicle accident of October 22, 2003:

(a)        Non Pecuniary Loss (past and future) for pain and suffering and loss of enjoyment of life                                                                                   $30,600

(b)        Future Loss of Income Earning Capacity                      $75,000

(c)        Future Care Costs                                                         $28,205

[9]                It was apparent that the verdict did not accord with counsels’ expectations or the evidence.

Should judgment be entered in accordance with the jury verdict?

[10]            On December 3, 2007, I sent a memorandum to counsel noting that while trial judges infrequently comment on a jury’s verdict, I believed that it was necessary to do so in this case and invited their comments on the verdict and the possibility of a new trial.

[11]            I will expand on my reasons for sending the memorandum, and the position of the parties.

[12]            The trial was scheduled for 10 days commencing on Monday, November 19, 2007.  There were three jury trials commencing on the same day.  This trial was the last trial for jury selection.  There were insufficient jurors to make up a panel and a Talesman order was made on November 19.  There were still an insufficient number of jurors and a second Talesman order had to be made on November 20.

[13]            On or about November 21 while Mr. Boota was testifying, a sheriff informed me that the jury was discussing the case (despite my caution to them in my opening remarks not to do so) and “they were not going to give him very much”.

[14]            Later, on November 21 a psychologist Mr. Paul Peel was testifying about Mr. Boota’s results from what is known as the “Beck anxiety inventory” when a jury member suffered an anxiety attack and was discharged.

[15]            On November 28, 2007, a sheriff informed me that a jury member was observed during the lunch break acting strangely on Columbia Street in New Westminster.  He was picked up by the police and taken to hospital.  He was apparently not taking his required medication. He was discharged from the panel.

[16]            Two of the remaining jurors made it clear they did not want to sit past 4:00 p.m. because of child care obligations.  However, they indicated that they would make other arrangements if jury deliberations continued past 4:00 p.m.

[17]            The plaintiff filed a large binder containing reports of 15 experts (excluding several radiological reports) totalling 213 pages.  Of those 15 experts, only five testified.  The defence filed a binder which included the reports of seven experts.  Only three of the defence experts testified.  The combined expert reports comprised approximately 400 pages.  It took me several hours to read and review the expert reports which were lengthy, detailed, and extensive.

[18]            The thrust of the defence argument was that Mr. Boota failed to continue exercising after he completed the work hardening program.  Implicit in this argument was that if Mr. Boota had continued exercising, he would have recovered and returned to work.  There was, however, no expert evidence to support that proposition.  It was as the defence argued, a matter of common sense.

[19]            In his closing argument, defence counsel told the jury:

If your common sense tells you, for example, that a motor vehicle accident on October 22nd, 2003 caused a thing to happen, or caused certain physical symptoms, then listen to your common sense and make your decision.  On the other hand, if your common sense tells you that a motor vehicle accident on October 22nd, 2003, would not cause a thing to happen, or isn’t causing things to happen as of today’s date, there are no strict rules or guidelines you follow.  Again, let your common sense be your guide.  It will serve you well here.  That’s what you bring to the courtroom, and that’s what the jury system is all about.

[20]            He later told the jury:

…  He sustained what the doctors have referred to as a soft-tissue injury to his neck, and a soft-tissue injury to his back.  No matter how many documents we pile up, how many binders we put together, how many days of trial we have, that’s the accident, and nothing changes that.  Those are the injuries.

I can’t hold up an expert report for you on this and I don’t go to anything in these voluminous reports for this as a medical proposition, but I say it’s a proposition of logic.  It’s a proposition that is this:  He has to get a career plan going.  I haven’t heard any evidence that he’s incapable of this.  Get the job training he needs, get educated if he needs further education, get focused and get out there into the world.

Ladies and gentlemen, my final comment to you is he’s not an invalid.  He simply has to get out there and there’s no other way to put it.  We all do that; we get out there.  Mr. Boota must do it.  Thank you.

[21]            Mr. Boota suffered more than soft tissue injuries.  The experts were agreed that he sustained psychological injuries as a result of the accident.

[22]            The jury began deliberations on November 30, 2007 at about 11:40 a.m.  I was informed by the sheriff at about 3:40 p.m. that the jury had reached a verdict.  Excluding their lunch break, the jury’s deliberations took less than two and a half hours.  It would take a reasonable person far more time to read the voluminous expert reports.  Except in those instances where an expert testified, none of the written expert reports were referred to during the trial, except in closing argument.  The jury was simply told to review them.

[23]            In answering question two, the jury found that the Mr. Boota ought to have returned to work as a Corrections Officer, or at least some other work in the period from January 1, 2006 to the date of trial.

[24]            No jury reviewing all of the evidence as a whole could have reached such a verdict.

[25]            The report of Dr. Chris Stewart-Patterson, Occupational Health Programs, BC Public Service Agency, (found in the plaintiff's binder of expert reports) discloses that he examined Mr. Boota on September 11, 2006 and found him “unfit to return to work” from a psychiatric and physical perspective.

[26]            In his 24 page expert report dated January 30, 2007, Mr. Derek Nordin, a vocational rehabilitation consultant, concluded that:

Mr. Boota is a considerable ways away from being a likely candidate for retraining options and without improvement in his overall functioning will remain so … [He] has both physical and emotional difficulties that interfere with his capacity to return to the workforce in any capacity.

[27]            The defendant filed a 41 page report of Joseph Hohmann, vocational rehabilitation consultant who assessed Mr. Boota on September 14, 2007.  At that point Mr. Boota could not return to his former occupation as a corrections officer and was unsuccessful with his union in finding other work in the Provincial Government.

[28]            Mr. Hohmann concurred with Mr. Nordin and concluded that Mr. Boota “is in need of help vocationally in order to become re-established in the labour force in a suitable capacity”.  That is, in order to find another job, Mr. Boota required the support and assistance of a vocational rehabilitation consultant or job development representative experienced in dealing with chronic pain, to help him find an employer who could accommodate both his physical and psychological disabilities.

[29]            Dr. Joseph Schweigel, an orthopaedic surgeon who testified for the defence, agreed that Mr. Boota suffered both physical and psychological problems from the accident and was no longer competitively employable.  Dr. J. Sidhu, Mr. Boota’s general practitioner, was of the similar view.

[30]            On this application, the defence seeks judgment in accordance with the verdict of the jury.

[31]            The jury’s finding on the issue of past income loss is, in my view, an error of law.  Generally, a court can order a mistrial when there has been an error of law made by the jury, but that is not what the plaintiff wants.  He does not want a new trial or the expense of a new trial.

[32]            Initially, the plaintiff requested that I consider substituting my judgment for the jury’s verdict.  However, he concedes that cannot be done:  see Johnson v. Laing, 2004 BCCA 364 at p.70.

[33]            Further, the plaintiff also does not want the Court of Appeal to order a new trial.  He hopes that the Court of Appeal will either assess damages or refer back to the trial judge for an assessment of damages.

[34]            The plaintiff seeks my opinion on the reasonableness of the jury's verdict and relies on the following statements of Southin J.A. in Johnson v. Laing, at pp. 75-83:

Question 2:  On an appeal, where the court is faced with a jury verdict that contains an error of law, and the trial judge has declined to remedy the error or has erred in applying a remedy, what steps may the court of appeal take to remedy the situation?  May the court:

a.         remedy the apparent error by substitution of an assessment of damages for the jury's verdict;

b.         remit the matter to the trial judge for reconsideration and assessment of damages in accordance with directions; or

c.         order a new trial on a limited issue (for example, assessment of damages).

[141]    This question only arises if this Court concludes that the jury's verdict was "unreasonable" or, in the words of Duff C.J. in McLean v. McCannell, supra, "that no jury reviewing the evidence as a whole and acting judicially could have reached it." 

[142]    The learned trial judge did not put it so but that is what I infer he meant when he said at para. 4, supra para. 13:

... it would have been difficult to conclude on the evidence that the back injury did not amount to a loss of employability that would sustain an assessment of future wage loss.  The evidence would also indicate that the assessment of general damages was inordinately low.

[143]    I have found it most helpful to have the learned trial judge's opinion on the reasonableness of the verdict which the Court would not have had but for the appellant's opposition to the motion for judgment.  I do not know why it is that when a question of the reasonableness of the verdict arises, this Court does not make a practice of consulting the trial judge.  Lindley L.J. followed that course in Allcock v. Hall, supra para. 104, obviously without any qualm as to its propriety.  That the trial judge's opinion could not bind the court does not deprive it of utility.

[157]    I have concluded, although not without some hesitation, that s. 9(1)(c) [Court of Appeal Act, R.S.B.C. 1996, c.77] does empower this Court to remit a cause to the trial judge to assess the damages on the evidence at the trial before him in circumstances such as these, and that, in this case, the Court should do so.  The learned trial judge has the great advantage of having seen the witnesses, especially the appellant.

[159]    I would therefore allow the appeal accordingly.  The appellant shall have the costs of the appeal.  The costs of the first trial and of the assessment of the damages are remitted to the learned trial judge.

[Bold in original]

[35]            I have already commented at length on the jury's verdict and the evidence.  There was no suggestion that Mr. Boota was not a credible witness.  I am of the view that the jury’s award was inordinately low.

Should the  award for future care be deducted from the judgment ?

[36]            The defendants contend that the jury’s award of $28,205 for future care costs should be deducted from the total award pursuant to s. 25 of the Act.

[37]            Section 25 provides:

Liability reduced

25 (1)   In this section and in section 26, "benefits" means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.

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

(3)        Nothing in this section precludes the corporation from demanding from the claimant, 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 motor vehicle or trailer or its use or operation, the amount of benefits paid, or to which the claimant 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 is entitled to enter judgment for the balance only.

(6)        If, for the purpose of this section or section 26, it is necessary to estimate the value of future payments that the corporation or other insurer is authorized or required to make under a plan or 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.

[38]            The plaintiff’s expert reports included a 33 page cost of future care analysis report by Mary Richardson, an occupational therapist. The report includes detailed recommendations for services and equipment to accommodate Mr. Boota’s reduced functional capacity.  Ms. Richardson did not testify.  In closing arguments, the jury was told to review her report in order to determine the award for cost of future care.

[39]            The summary of Ms. Richardson’s recommendations is as follows:








1. Case Manager

First Year (including travel expenses)

Second Year (including travel expenses)

Subsequent Years (including travel expenses)

No replacement

No replacement

5 to 10years




2. Counselling

First 18 months


Subsequent Years

Scenario A

Scenario B

No replacement

No replacement


3 to 5 years





3. Pain Management Program

No replacement


4. Supervised Exercise Program


First Year

Next Year

Subsequent Years

Gymnasium Membership

No replacement

Yearly for 2 to 3 years







5. Vocational Rehabilitation

Initial Treatment

Subsequent Intervention

No replacement

No replacement



6. Chiropractic Treatment

First year

Subsequent Years

No replacement


930.00-1,365.00 360.00-420.00

7. Massage Therapy

First Year

Subsequent Years

No replacement




8. Homemaking Assistance

Current Situation

Future Need

Scenario A

Scenario B

Scenario C

Scenario D











9. House/Yard Work Assistance

Current Need

Future Need

Scenario A (lives with family/apartment)

Scenario B (stays in condominium)

Scenario C (owns a house)










1. Extended Mirrors

No replacement


2. Cervical Pillows

4 to 5 years



1. Hydromorphone



2. Oxazepam



3. Zopiclone



4. Citalopram



*           denotes G.S.T. applicable

**         denotes G.S.T. and P.S.T. applicable

+          denotes G.S.T. included

++        denotes G.S.T. and P.S.T. included

[40]            Ms. Richardson's report had to be read along with the report of Sergiy Pivnenko, an economist, in order to determine the present values of the recommended cost of future care items.  The values range from a low cost estimate of approximately $220,000 to a high cost estimate of approximately $370,000.

[41]            The defendants argue that all of the services, equipment and supplies recommended by Ms. Richardson are covered by Part 7 of the Insurance (Vehicle) Act Regulations, B.C. Reg. 447/83:  a case manager, counselling, pain management program, supervised exercise program, chiropractic treatment and massage therapy, fall within s. 88(1) if they are “necessary medical service” or “necessary physical therapy"; vocational rehabilitation falls within s. 88(2)(e) if it is consistent with Mr. Boota's pre-injury occupation and his post-injury skills and abilities, and if it may return him as nearly as practicable to his pre-injury status or improve his post-injury earning capacity and level of independence; and homemaking assistance and house or yard work assistance fall within s. 84(1) or s. 88(2)(c).

[42]            Those sections read:

Disability benefits for homemakers

84 (1)   Subject to section 85 and subsection (2) of this section, where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident substantially and continuously disables an insured who is a homemaker from regularly performing most of the insured's household tasks, the corporation shall compensate the insured for the period of the disability or 104 consecutive weeks, whichever is shorter, for reasonable expenses incurred by the insured to hire a person to perform the household tasks on the insured's behalf, subject to a maximum amount per week as set out in section 2 of Schedule 3.

Medical or rehabilitation benefits

88 (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.

(1.1)     Repealed. [B.C. Reg. 383/89, s. 14.]

(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:

(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, Ministry of Health, Province of British Columbia;

(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;

[43]            The defendants rely on Neilsen J.'s decision in Sovani v. Jin, 2005 BCSC 1285, where she states:

[17]      In Fisher v. Wabischewich (1978), 5 B.C.L.R. 335 (C.A.) Farris C.J.B.C. described the purpose of s. 25 at 336:

... The clear purpose of the legislation is to discontinue lump sum awards for future care and to supply future benefits as and when required provided application is made within the time prescribed by the Regulations.  . . .  Accordingly (broadly speaking) it provides that where a plaintiff, who is entitled to the benefits provided under the Act, has brought an action for damages suffered as the result of a motor-car accident, his damages shall be assessed and that following the assessment the Judge shall deduct from his award the amount that the plaintiff will receive by way of benefits for future care.

The purpose of the deduction is two-fold:

(1)        It is to determine the sum that the plaintiff shall receive at the time of the judgment. It is not to fix the amount of the future benefits. The amount of benefits that the plaintiff will receive in the future is determined by the provisions of the Act. These may well be in excess of the amount estimated by the trial Judge in his award. However, by deducting the amount that the trial Judge has estimated, the amount that is immediately payable to the plaintiff is determined; and

(2)        It is to prevent the plaintiff from being compensated twice. He cannot receive a lump sum in respect of future benefits and also receive the benefits.

[18]      In Baart v. Kumar (1985), 66 B.C.L.R. 1 (C.A.) at 12 Seaton J.A. described the general purpose of s. 25 as shifting responsibility for future care needs from the tortfeasor to a body that provides insurance regardless of fault.  He said that this necessarily takes away the right to claim such benefits from a person other than the insurer. 

[19]      Thus, since an award for future care costs has been assessed under s. 25(4), I am required to estimate the value of future payments, being Part 7 benefits, that the plaintiff “is or would have been entitled to”, and deduct the present value of those from the award pursuant to ss. 25(2), (5), and (6).

[44]            Mr. Boota claimed special damages totalling $17,673.86, including over $11,000 for the ambulance fee, medication, massage therapy, chiropractor treatments, acupuncture, sessions with the psychologist, and $243.48 for exercise equipment.  However, the defendants refused to pay for any of the amounts claimed.  It was not until after the close of the evidence that the defendants agreed on the amount of special damages at $17,673.86, but did not agree that the amounts incurred were related to the accident.

[45]            The defendants contend that the fact that Mr. Boota will likely be refused the recommended services, equipment and supplies is no reason not to deduct the $28,205 award for future care costs because s. 25 is mandatory.  The defendants rely on Sovani at paragraph 50:

[50]      I am sympathetic to the view that the plaintiff should receive the future care that the jury found necessary, and I agree that it is cumbersome to require the plaintiff to proceed with his Part 7 action in the face of the jury’s verdict.  In my view, however, none of these arguments overcomes the mandatory legislative framework of s. 25, which I have concluded requires the court to estimate entitlement to future Part 7 benefits, and deduct them from the tort award, even if the plaintiff may not receive those benefits.  The Act and the Regulation leave the issues between the Corporation and the plaintiff as to provision of benefits to be litigated between them in a different forum.

[46]            However, Neilsen J. also stated:

[59]      One of the factors taken into account in those and other decisions is the uncertainty of future payment by the Corporation.  …

[60]      There are nevertheless many other uncertainties with which the Court must grapple in estimating the proper deduction.  Over what period will the services be needed?  What will be the pattern of use?  Will changes to the legislation affect entitlement to Part 7 benefits?  Which of the services awarded are mandatory under s. 88(1) of the Regulation, and which are discretionary under s. 88(2)?  If they are discretionary, this may be reflected in reducing the estimate: Ayles v. Talastasin (2000), 73 B.C.L.R. (3d) 60 (C.A.) at 70; Peterson v. Bannon (1991), C.C.L.I. (2d) 232 (B.C.S.C.) at para. 8.

[61]      As well, in calculating the deduction, the courts of this province have traditionally required that there be a match between an item awarded as part of damages for future care, and a benefit available under Part 7, to comply with the legislative purpose of avoiding double compensation.  In Jang v. Jang (1991), 54 B.C.L.R. (2d) 121 (C.A.) the Court expressed this as follows at para. 13:

The theory underlying s. 24 of the Insurance (Motor Vehicle) Act is that there should not be double compensation for the same loss. But that does not mean that all of the benefits paid under Part 7 must be deducted one way or another from some item of damages, or from the total award of damages. It is only where the benefit corresponds with the particular heading of claim for damages that the benefit is to be deducted, and then only from the award for that particular head of damages. The requirement that the benefit match the claim is implicit in the legislative scheme as it was described in Baart v. Kumar and is explicit in s-s. 24(2) which matches "a claim for damages" with "benefits respecting the claim". I do not think that the claim there referred to is the whole claim; rather it is a claim to a particular heading of loss matched by a particular heading of benefits.

[62]      However, where a global award of future care is made by a jury, as is the case here, it is virtually impossible to engage in this matching process, since the services and items covered by the award are uncertain.  Speculation as to the content of the jury’s award is inappropriate, and has been held to have no role in assessing the deduction.  This makes the estimation required by s. 25 even more difficult: Buksh v. Franco (1996), 38 C.C.L.I. (2d) 6 (B.C.S.C.) at 9; aff’d (1997), 54 B.C.L.R. (3d) 288 (C.A.); Browne v. Insurance Corp. of British Columbia, 2003 BCSC 1333 at para. 24; Vollman v. Ozlos, 2001 BCSC 1218 at paras. 25-27

[63]      The onus to establish that a deduction is appropriate in the face of such uncertainties, remains with the defendants: Lynn at 406; Drews v. Savard 2002 BCSC 666 at para. 6.

[47]            Mr. Boota agrees that s. 25 is mandatory, but argues that the jury's award of future care costs is so minimal compared to the amount claimed ($28,205 v. $220,000 - $370,000) it is impossible to say to what extent the award includes Part 7 benefits.

[48]             “Rehabilitation” is defined by s. 78 of the Regulations as follows:

[M]eans the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him;

[49]            Mr. Boota argues that homemaking and yard work assistance are not services that are “likely to promote” his rehabilitation and restore him to gainful employment or self sufficiency.  He is competitively unemployable.  There is no evidence to the contrary.  Pain management, homemaking assistance, house or yard work assistance, and vocational assistance or rehabilitation are discretionary items that may or may not be paid; and it is difficult to argue that massage is necessary physical therapy.  Many of the cost of future care items claimed will improve Mr. Boota’s quality of life and help him cope with and manage pain.  They will not rehabilitate him within the meaning under s. 78.

[50]            In Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.), Hollinrake J.A. stated:

19        Insofar as proof is concerned I think it is necessarily implicit in s. 24(5) that the evidence upon which the estimate of future benefits is made is that very evidence which was before the trial judge in the tort action and upon which he or she made their assessment of those damages. The uncertainties as to the payment of future benefits which are created by the regulations cannot, in my opinion, act as a bar to the court estimating these future benefits as best it can as required by s. 24(5). It may well be in any given case that the s. 24(5) estimate, when measured against the findings of fact in the tort action, will be nominal by reason of the uncertainty of payment, or more correctly speaking entitlement to payment, of future benefits created by the regulations. Trial judges may be cautious in their approach to the s. 24(5) estimate inasmuch as the deduction results in a lessening of the award in the tort action considered proper on the evidence by the trial judge. However, if that is the result of uncertainty created by the regulations I do not think the Corporation in all fairness can be heard to complain. In the case before us there is no such problem because the amount of the estimate is agreed upon.

[51]            I find it is almost impossible to determine from the jury's award and the evidence, whether Mr. Boota will be entitled to the payment of any of the cost of future care that he claims.  It is also fairly evident from the evidence that Mr. Boota will have difficulty in receiving any future benefits.


[52]            There will be judgment in accordance with the verdict of the jury.

[53]            Given the uncertainty of Mr. Boota's entitlement to future payment of benefits under the Regulations and the uncertainty of knowing what the jury intended to include in its award for cost of future care, I have concluded that the amount to deduct under s. 25 should be nominal.  I set the amount at $1,000.

"Loo J."