Cost of Future Care 2019

It is always useful to review the test to determine whether an award under the heading of costs of future care is appropriate.

A recent decision awards the Plaintiff $64,371 for cost of future care and I quote from this decision the Court’s comments:

[412]     Claims for cost of future care need to be medically justified and reasonable: Milina v. Bartsch, (1985) 49 B.C.L.R. (2d) 33 (S.C.) at para. 211. Recently, in Gao v. Dietrich, 2018 BCCA 372, Justice Savage summarized the applicable principles governing the determination of future care costs at paras. 68‑70:

[68] An award for damages for cost of future care is based on the principle of restitution. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 241‑242, Dickson J., as he then was, explained the purpose of an award for cost of future care:

In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in a position where he would have been in had he not sustained the injury. Obviously a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed. To this extent, “restitutio in integrum” is not possible. Money is a barren substitute for health and personal happiness but to the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of the claim.

[69] An award for cost of future care is based on what is reasonably necessary, on medical evidence, to promote the mental and physical health of the claimant: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78, aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.); Aberdeen v. Zanatta, at para. 41; Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at para. 30. An award for future care must (1) have medical justification, and (2) be reasonable: Milina at 84; Aberdeen at para. 42.

[70] In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, this Court clarified that the medical necessity of future care costs may be established by a health care professional other than a physician, such as an occupational therapist, if there is a link between a physician’s assessment of pain, disability, and recommended treatment, and the health care professional’s recommended care item (at para. 39).

[413]     Damages representing the costs of future care are assessed, not mathematically calculated: Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31.

[414]     There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[415]     The plaintiff suggests costs of future care totalling $76,370 based upon a combination of the recommendations contained in the report of Mr. McNeil together with the present day value of cost of future care provided for in the Carson report. The Carson report, by oversight, makes allowance for only one year homemaking assistance; the remaining recommended costs are calculated based on their present day value.

[416]     Homemaking assistance is, by far, the largest expense. The plaintiff submits that it is reasonable for the provision of housekeeping services an annual cost of $2,808 for provision of four hours weekly over the remainder of the plaintiff’s lifetime. Such according to the plaintiff’s counsel has a present day value of $66,774.

[417]     Such presumes the plaintiff would have carried on doing the chores now beyond her physical capacity owing to her injuries throughout the whole of her lifetime. That seems unlikely. Aging brings on its own complications and changes in circumstances, for instance assisted living, that make such an award excessive.

[418]     The plaintiff suggests a contingency of 25% resulting in an award of $50,000 together with $26,000 representing the present day value of the other items referenced in the recommendations of Mr. McNeil at Appendix N of his 2017 report.

[419]     Those recommendations include a variety of homemaking assistive devices, ergonomic devices such as a high backed chair, sit/stand desk and footrest together with the rehabilitation costs of a kinesiologist, occupational therapist, and psychological counseling. There is also an allowance, $350-$450, for Viscosupplement.

[420]     The defendants take no issue with the homemaking devices, ergonomic aids or the costs of a kinesiologist but suggest that any psychological counselling be apportioned between the multiple causes towards which counselling needs be directed. They dispute the need for the viscosupplement or the occupational therapist.

[421]     Based on the recommendation of Dr. Wang, I allow the sum of $1,760 for a kinesiologist. Further, I allow the costs associated with ergonomic aids recommended by Mr. McNeil and unchallenged by the defendants; $7823. That sum is taken from Table 1 of Mr. Carson’s report on the cost of future care.

[422]     Similarly, I allow the sum of $788 for what are referenced as homemaking assistive devices as per the McNeil report and the Carson report on future care costs.

[423]     I see no medical justification for the viscosupplement, active release therapy, IMS, or the cost of occupational therapy. Those expenses, as I understand the evidence, relate primarily to the plaintiff’s hip complaints which have, for the most part, abated.

[424]     Given my view that the psychological component attributable to the accident is modest, I allow the sum of $4,000 for cognitive therapy; not the suggested allowance of $11,700, in an effort to assist the plaintiff with pain management.

[425]     The defendants argue the homemaking expense is unnecessary or, if allowed, should be a far more modest allowance than suggested by the plaintiff. Given the expert opinion indicates that passive therapy is unnecessary, the defendants dispute other treatments.

[426]     I am satisfied based on the physical injuries as documented by Drs. Craig, Wang and the functional capacity testing of Mr. McNeil, that housekeeping assistance is necessary to include heavier chores both inside and outside the plaintiff’s home.

[427]     The amount sought represents an allowance for a homemaker for only 2 hours per week. Given the commentary by Mr. McNeil as to the inability of the plaintiff to do tasks requiring medium or heavy lifting, I am satisfied that the amount, subject to the proposed discount by the plaintiff, is reasonable and warranted by the plaintiff’s accident-related symptoms. Accordingly, I allow $50,000 for homemaking expense.

[428]     In total, I allow the sum of   for the plaintiff’s cost of future care.

Summary of Damages

[429]     In summary, I award the plaintiff damages as follows:

Non-pecuniary Loss:


Past Loss of Earning Capacity


Future Loss of Earning Capacity


Special Damages:


Cost of Future Care:




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