Further to my post yesterday on the Deductibility of Part 7 Benefits in BC Tort Actions the BC Court of Appeal made some interesting comments with respect to these in reasons for judgement released today.
In today’s case (Boota v. Dhaliwal) the Plaintiff was awarded just over $170,000 in total damages by a jury as a result of a 2003 Car Crash. The trial judge reduced part of the Jury Award by $1,000 as an assessment of the benefits that the Plaintiff was entitled to receive from ICBC under his policy of insurance. The Defendants, who were insured with ICBC, appealed this portion of the judgement arguing that a far greater amount should have been deducted from the jury award.
The Court of Appeal Dismissed this appeal and in doing so made the following useful comments:
 I turn to consider the question of whether the trial judge in this case erred in estimating the s. 25 deduction either by incorporating a matching approach or by considering the likelihood of ICBC paying benefits.
 As noted already, the jury awarded the appellant $28,205 for the cost of future care. The jury was not asked to specify the items of future care which it awarded, though there seems to be no reason where the claim is advanced as a pecuniary one that the jury could not be required to particularize this part of the award. The trial judge deducted $1,000. Because it is possible the appellant may in the future apply for, and receive, payment under Part 7, there exists the risk that he will be doubly compensated. However, the trial judge held that he was unlikely to be paid and therefore assessed a nominal deduction. ..
The respondents argued at trial that the appellant was not entitled to the $218,893 – $377,273 he claimed as future cost of care. The defence largely succeeded in that argument. I infer the jury found either that the bulk of the future expenses claimed were unnecessary, or if they were necessary, the condition for which they were necessary was not caused by the motor vehicle accident. The respondents cannot now succeed in arguing that the appellant’s entire claim for future cost of care as advanced at trial (one which the appellant pressed at trial, has now been judicially determined to be largely without merit) ought to reduce the entirety of his tort award. I would not accede to this argument. This is not a question of matching Part 7 claims to specific heads of damage in tort, which Gurniak says is wrong, but rather a question of not estimating claims under Part 7 in a manner opposite to what has already been found in this case to be unnecessary or unrelated to the motor vehicle accident.
 That leaves for consideration the question of the award of $28,205 for future cost of care and whether the trial judge erred in making only a nominal estimate under s. 25.
 The s. 25 estimate should be, as it was here, based upon the evidence and arguments advanced at the trial: Coates v. Marioni, 2009 BCSC 686 at para 35; Schmitt v. Thomson (1996), 132 D.L.R. (4th) 310, 70 B.C.A.C. 290 at para. 19.
 Section 25(5) says that the “court must estimate” the amount of benefits to which the claimant is entitled. That necessarily involves some kind of itemized examination of benefits that the appellant may claim in the future under Part 7. After all, how else is the court to perform the estimate? Gurniak has been interpreted to mean that this s. 25 assessment or estimate is not to be matched with heads of damage claimed in the tort action for deductibility purposes, but that interpretation does not preclude the court from taking into account the itemized amounts claimed in the tort claim when making its estimate under s. 25. I recognize that in advancing its s. 25 claim the respondent is not limited to specific items claimed by the appellant in the tort action, although usually one would expect some overlap between the future cost of care and the estimate of items to be deducted under s. 25.
 The trial judge may exercise caution in her findings about the likelihood that ICBC would in the future pay any benefits under s. 88 of the Regulations: Schmitt at para. 19. The trial judge may have regard to the position taken at trial. (Uhrovic v. Masjhuri, 2008 BCCA 462, 86 B.C.L.R. (4th) 15 at paras. 37–42). Should the trial judge take into account the verdict in her assessment of the likelihood of payment? In my view that is one of the considerations that may be taken into account in adopting a cautious approach. In my view, the trial judge may properly infer that the same considerations propounded by ICBC at trial, and which appear to have been reflected in the damage award, may determine ICBC’s position on an application for payment of future benefits.
 In summary, the Court may take into account the evidence and submission on necessity and causation in assessing the likelihood of ICBC paying the Part 7 expenses. This is so because those same factors are pre-conditions for payment under Part 7. It was implicit in the comments of the trial judge at paras. 51 and 53 of her reasons for judgment that she considered the appellant was unlikely to be entitled to receive payment under Part 7. I cannot say that she erred in her conclusion. I would not accede to this argument.
The reason this case is important is because, as I wrote yesterday, often times ICBC refuses to provide Part 7 Benefits and then has their lawyer in the tort trial argue that these benefits should have been paid thereby giving the Defendant a statutory deduction. In today’s case BC Court of Appeal specifically stated that it is proper for a trial judge to look at the Defendant’s trial position during the damage assessment portion (where the lawyer usually argues that the Plaintiff’s expenses are unreasonable) and infer that this mirrors ICBC’s position when considering the payment of Part 7 benefits.