This is an interesting case which involves a claim for personal injury following a motor vehicle collision which occurred in Vancouver on March 4, 2009. The case is referenced as Kirby v. Loubert, 2018 BCSC 498.
The Plaintiff in this case, who was 50 years of age at the time of the collision, was travelling southbound on Main Street when a northbound vehicle (the Defendant) turned left in front of him.
A few issues were raised in this case that are worth reviewing. The main focus that will be highlighted in this post, however, is the claim for cost of future care as it relates to the Plaintiff’s increased consumption of medical marijuana post collision for pain management.
Liability was an issue, specifically the split as it pertained to the Plaintiff’s contributory negligence. The analysis led to a conclusion that the Plaintiff in this case was found contributory negligent by 25%. Therefore, the Plaintiff’s claim was reduced by that amount. There was discussion on whether the client’s use of medicinal marijuana on the day in question may have contributed to the client’s time to react appropriately. However, as there was no evidence presented on this specific theory, and none of the experts had indicated that the Plaintiff was not able to drive, this was not a factor in the decision of contributory negligence. Speed was the primary factor that resulted in the Plaintiff’s 25% fault of this collision.
The Plaintiff had a significant pre-existing medical injury in which he was rendered a paraplegic and an incomplete quadriplegic when he was 23 years old from a serious accident. The issue of causation was raised in this case including a discussion dealing with crumbling skull v. thin skull. The Court concluded that “Mr. Kirby was a classic “thin-skulled plaintiff”, but also demonstrated features of the “crumbling skull”.
The court concluded:
Mr. Kirby suffered a very serious pressure wound that caused him significant problems for more than six years. It required surgery to resolve and has left him with an increased risk of recurrence. The problems arising from that wound also contributed, through deconditioning, to the difficulties presented by his soft tissue injuries and the exacerbation of his degenerative conditions. The result, as I noted above, has been increased chronic pain, reduced mobility, delayed recovery, and the experiencing of the effects of degeneration earlier than would otherwise have been the case.
The Plaintiff was awarded $140,000 for non-pecuniary damages, reduced by 25%, representing the Plaintiff’s contributory negligence.
Cost of Future Care – Medical Marijuana
This claim included a significant cost of future care award as it relates to medical marijuana. The Plaintiff claims that post collision, his daily use of medical marijuana doubled from 20 g per day to 40 g per day for purposes of pain management resulting from the injuries sustained in the subject motor vehicle accident. The claims, depending on the cost and the amount of increased use per year and over the life expectancy of the Plaintiff:
1st Report 5 g per day $54,750 per year Life expectancy total: $1,281.00
2nd Report 5 g per day $18,250 per year Life expectancy total: $427.038
Total: 20 g per day (Reduced rate) Life expectancy $2,135,191
A fact raised in this case is that the Plaintiff was not actually paying for the medical marijuana as he had a special “sponsorship” arrangement with a local supplier.
Although the Court accepted that the Plaintiff’s use of marijuana did increase post collision, the key issue to be analyzed is whether the use of medical marijuana was medically justified as it pertains to the cost of future care.
The Court reviewed the medical evidence, Here are some of the opinions that led to the ultimate decision:
- Chronic use of free marijuana in substantial amounts should be cautioned;
- Impact to mood-altering ability and may impact on Plaintiff’s cognition;
- Plaintiff should consider reducing dose to 15 to 20 g and consider stopping its use;
- Failing that, there will be long-term ramifications to his cognition;
- Long-term use may lead to psychiatric complications;
- May lead to social withdrawal, apathy, lack of motivation and features similar to depression and anxiety;
- May cause paranoia with addictive properties which may lead to higher tolerance;
Although there was evidence to support that opioids would be much more harmful, the presented evidence ultimately led to the conclusion that the increased use of medical marijuana was not deemed medically justified. The Court’s conclusion:
 On all of the medical evidence, I am prepared to accept that Mr. Kirby’s use of medical marijuana to treat chronic pain is medically justified in a general sense, given his spinal cord injuries and the resulting reduction in opioid use. But, I find, the evidence does not support the proposition that Mr. Kirby’s use of amounts in excess of 20 g per day is either reasonable or medically justified in relation to the injuries he sustained in this accident, particularly since the resolution of his serious pressure wound sore. The medical evidence does not go that far. Indeed, the experts were unanimous in concluding that his present level of consumption is excessive.
 In these circumstances, I find that Mr. Kirby has not established a claim for the future cost of additional medical marijuana.
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