Awards of cost of future care

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A recent 2023 decision Donaldson v Grayson, 2023 BCSC 1675 (CanLII) outlines the legal principles relating to the assessment of cost of future care. 

The award for costs of future care was significant – $208,000.  There were also multiple objections raised by the defence in relation to cost items, some of which were accepted by the Court. 

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Legal Principles

[461]   Awards of cost of future care must be objectively supported by medical evidence, the claims must be reasonable, and if the plaintiff will not use the services, the awards ought not be made: Milina v. Bartsch (1985), 1985 CanLII 179 (BC SC), 49 B.C.L.R. (2d) 33 (S.C.); Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21; and Golkar – Karimabadi v. Bush, 2021 BCSC 990 at para. 107. The medical evidence can come from a health care provider who is not a physician. Like other awards for expenses that may occur in the future, they are subject to adjustments for contingences.

 [462]   The supporting medical evidence must demonstrate that the expense is reasonably necessary to promote the mental and physical health of the plaintiff: Gignac v. Insurance Corporation, 2012 BCCA 351 at para. 30. Because health and happiness are intertwined, reasonably necessary is a lesser requirement than medically necessary: Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993 at para. 82, aff’d Aberdeen v. Zanatta, 2008 BCCA 420.

Objections raised by the defence:

  • the costs are one that the Plaintiff would have incurred in any event;
  • the costs are unlikely to be incurred by the Plaintiff; and/or
  • the costs are not supported by medical evidence;
  • some of the recommendations will not be utilized as the Plaintiff has not utilized them recently.
  • the evidence overall is that the Plaintiff is financially fairly well off.
 
The cost of future care items are noted below with the Court’s decision on whether they were allowed or not. 
 
Dental / TMJ – Not allowed as not caused by the MVA
Occuptional Therapy – Not allowed.  OT would be focused on coping strategies for cognitive impairments, support for finding avocational / volunteer pursuits and support for pain and symptom management. However, as the Plaintiff did not use the services of an OT, the Court did not allow it.
Physiotherapy and Vestibular Therapy – Allowed.
The Plaintiff testified that she has used various modalities from time to time based on what kind of therapy is available in the West Kootenay area and what she feels is working at the time. Defence objects as last treatment undertaken was in 2018 and therefore, she will not likely use this treatment. The Court conclude that the Plaintiff will use vestibular physiotherapy if it is available to her, and that Ms. C.’s inclusion of it in the physiotherapy allowance is reasonable and medically supported.  The Court concluded that the allowance for physiotherapy is reasonable. The three year assessments and the quantity of the annual treatments will approximate what Mrs. Donaldson will use. I allow the claim for physiotherapy.
Kinesiology – Allowed. 
The Plaintiff has used a personal trainer since the accident to assist her with developing an exercise program that is suitable for her injuries.  She has a home gym and goes to the local pool. Defence objects and states the Plaintiff has not used this service since 2017 and will likely not use this program. The Court disagreed and allowed this cost item.
Chriopractic or Massage Therapy – Allowed.
The Defence submits that the Plaintiff has not had massage therapy since 2019 and only returned to chiropractic treatment in 2022 after a five year absence. Defence states that it is unlikely these treatments will be used.  The Court disagreed as the Plaintiff had some form of pain-related therapy including chiropractic, acupuncture, and massage therapy.
Recumbent Bike – Not Allowed.
Recommended for home gym for cardiovascular exercise.  The Plaintiff did not testify that she would use a recumbent bike. The evidence also was that the Plaintiff should undertake activities that  provide cardiovascular conditioning such as walking for up to one hour and a half at a time, swimming and cross-country skiing.  Therefore, this cost item was not supported and not allowed.
Hot Tub – Allowed.
The Plaintiff states that the hot tub eases her pain and provides her with a sense of calmness. She testified that she pushes herself hard with exercise because she knows that if she overdoes it, she can relieve the pain in the hot tub. Dr. G. recommended the plaintiff have a hot tub.  The Defence opposes the hot tub cost although characterizes it as a special expense because it was not included in the report. The Court stated: “I consider this to be the exceptional case where an expense such as this meets the test for an award.”  The Plaintiff obtained a quote for a hot tub based on the smallest model that a local hot tub provider supplies. The quote is just under $19,000. The costs of installing the electrical to support is $2300. I allow these costs.”
Adjustable Bed – Allowed.
The evidence confirms that the Plaintiff does suffer with sleeping difficulties.  An adjustable bed was recommended as means to address the Plaintiff’s pain in her neck, upper back and shoulders.  The defence states that the adjustable bed should not be allowed as the Plaintiff has not proved she has ongoing physical injuries. I have made findings contrary to that position. The Court stated “I conclude that the one-way adjustable bed was a reasonable special expense and a two-way adjustable one is also reasonable based on Mr. Donaldson’s evidence that he has trouble sleeping if the position works for Mrs. Donaldson. However, I do not consider that Ms. Grayson should have to pay for both beds. I will allow the expense of the fully adjustable bed, $4,485. I will deduct the expense of the previous adjustable bed from special damages.”

Assessment of Cost of Future Care

[500]   Mr. Szekely valued the cost of future care based on the low end and high end of the cost estimates. Mrs. Donaldson seeks the median of those totals. I did not hear any submissions on why anything higher than the low end is appropriate. Given that, I will base my assessment on the low end.
 
[501]   The total of the low end of the items that Ms. Chow recommended, less the items I have not permitted, is $251,688. With the hot tub and two-way adjustable bed, the total is $277,741.
[502]   With regard to contingencies, despite my findings that the individual items claimed are ones that Mrs. Donaldson will use, the number of therapies and items of care recommended, when viewed in total, gives rise to a concern that reasonable time and effort will not permit Mrs. Donaldson to pursue all of them. I conclude that it is reasonable to reduce the cost by 25% for that contingency.
 
[503]   I assess cost of future care at $208,000.

See Case Here.

Read our related article:  Cost of Future Care – Arguments to Reduce Items Claimed.

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