Today’s post will review the award under the heading: cost of future care.
We will highlight the arguments raised by the defence in this case as it is a useful exercise to be aware of them.
The test is as quoted in this decision Harry v. Powar, 2017 BCSC 2618 (Judgment date: May 16, 2018):
 The Plaintiff is entitled to “compensation for the cost of future care based on what is reasonably necessary to restore her to her pre-accident condition in so far as that is possible. When full restoration cannot be achieved, the court must strive to assure full compensation through the provision of adequate future care. The award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33,  B.C.J. No. 2762 at para. 172 (S.C.); Williams v. Low, 2000 BCSC 345 at para. 48; Spehar v. Beazley, 2002 BCSC 1104 at para. 55; Gignac v. Rozylo, 2012 BCCA 351 at paras. 29-30.
 The test for determining the appropriate award under the heading of cost of future care is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of future care and (2) the claims must be reasonable: Milina at para. 199; Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63.
 The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases, negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, however, the award is reduced based on the prospect of improvement in the plaintiff’s condition or increased based on the prospect that additional care will be required. Each case falls to be determined on its particular facts: Gilbert at para. 253.
 Assessing damages for cost of future care is not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.
The table below outlines the items claimed by the Plaintiff for cost of future care and the ultimate amount awarded that was deemed reasonable based on the medical evidence.
|Item Claimed||Amount Claimed||Amount Awarded|
|Home Services / Home Maintenance||$38,264||$19,132|
|Home Equipment / Foam Pillow / Mattress||$13,169||$6,585|
Pilates, active rehabilitation/kinesiology, gym pass (50%), physiotherapy, massage therapy, acupuncture and prolotherapy
Total Cost of Future Care
The defence in this case agreed that the Plaintiff was entitled to cost of future care for home services, home equipment, treatment modalities including medication, but did not agree that the amounts claimed were reasonable, nor justified based on the medical evidence. Furthermore, it was argued that the negative contingencies were not considered in the cost of future care report.
- Items are not reasonably necessary on the medical evidence;
- The Plaintiff has no intention of pursuing all of the items claimed;
- The Plaintiff would have pursued some of the items claimed in any event;
- Items noted in the functional capacity evaluator’s report did not account for various negative contingencies which ought to be applied;
- The report of the expert is flawed because a home assessment was not conducted by the author of the cost of future care report;
- The report of the expert is flawed because the report is based on a lifetime cost assessment, which is not reasonable;
- The report of the expert outlines lifetime costs for the treatment modalities on the basis that the Plaintiff would be seeking such treatment on a regular basis for her lifetime, which is erroneous.
The Conclusion of the Court:
- Home Services: the claim for home maintenance is proven but the amount claimed for this item is in dispute. The Court considered the medical evidence and reduced the award by 50% to account for negative contingencies. The Court also stated that this cost may have been incurred in the Plaintiff’s future in any event of the accident. There was no amount awarded for heavier seasonal yard maintenance as the Plaintiff did not currently have a yard (although was expected to in the future). Based on the division of labour in the home and it was a two-person household the Court did not agree with this claim.
- Home Equipment: the Defendant states the memory foam pillow and mattress should be a one-time entitlement and therefore, the amount claimed should be reduced. The Court states that there is medical justification for these items, but they likely will not need to be replaced as often as stated. A reduction of 50% was therefore applied to this cost of future care item.
- Treatment modalities: the medical evidence supports the fact that treatment modalities are deemed reasonable and necessary. The Defendant argued that the treatment modalities should only be projected for a 4 year period for certain items, and a 1 year period for the balance. The Court agreed that the items claimed were high in relation to the nature and severity of the injuries. Certain items may have been required in any event. The Court therefore, based on the contingencies and based on what was deemed to be reasonable, reduced the amount claimed to $30,000.
- Medication: the Defendant agreed with the Plaintiff’s claim for medication at $2,000 and agreed that this claim was reasonable and medically justified on the evidence.
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