In a recent published decision, a Plaintiff is successful in recovering over $217,000. for future costs. This was a case that resulted in serious injuries. The Plaintiff was diagnosed with 3 vertebral fractures (T12 burst fracture, T11 spinous process fracture, L4 endplate fracture), soft tissue injuries to her sternum, chronic pain syndrome with myofascial pain in her left shoulder, neck, back, Left abdominal wall injury, right leg and knee injury, insomnia, anxiety and depression, concussion, post concussion syndrome with persistent cognitive limitations, exacerbation of vertigo and dizziness, and headaches.
The Court accepted the evidence of the Neurologist that confirmed the Plaintiff sustained a brain injury as a result of the motor vehicle accident. The Expert stated: The Plaintiff does fulfill the criteria to make a diagnosis of a mild traumatic brain injury (concussion) at the time of accident on May 9, 2017. He opines that Ms. H. has developed symptoms of post‑traumatic brain injury syndrome with headaches, dizziness, decreased balance, decreased mental energy, anxiety, disturbed sleep, decreased memory, decreased attention, decreased multi-tasking, and post-traumatic headaches. He also notes that Ms. H. has suffered intermittent vertigo symptoms, which increased following the accident and have more recently improved.
The Plaintiff was also deemed to be a credible witness.
As it relates to in-home care and/or assisted living, we will quote directly from this decision:
Future Care Costs of In-Home Care and/or Assisted Living
[114] Counsel for the plaintiff has provided five possible scenarios as real and substantial possibilities in this case. Before I set those out and discuss them further, I note that the future care costs of in-home care and/or assisted living is the biggest of these sub-claims and arguably the most contentious part of Ms. H’s overall claim. The defendant, in highlighting the evidence around pre-existing conditions such as the TIA and intermittent dizziness, were in my opinion attempting to alert the Court to contingencies that should be considered and that could limit Ms. H’s claim.
[115] The claim under this head is based on the submission that Ms. H. was a highly independent woman who would have remained living independently in her own home, for as long as possible and until she passed away, likely in her 90’s given her maternal longevity. Ms. H’s mother lived into her 90’s and remained independent. Ms. H. testified that prior to the accident, she planned to continue to live independently.
[116] The scenarios set out in the plaintiff’s submissions are as follows:
· Scenario 1 is based on the difference between an absent accident trajectory in which the plaintiff remains in her home into her 90’s, and instead as a result of accident-caused injuries and loss of function, has to move into assisted living at the age of 80. Estimated cost is $637,000.
· Scenario 2 is similar and based on the difference between an absent accident trajectory in which the plaintiff remains in her home into her 90’s, and instead as a result of accident-caused injuries and loss of function, has to move into assisted living at the age of 80, but also reflects that between the ages of 75 and 80 the plaintiff will have ever increasing care‑needs in her home before she transitions to assisted living. Estimated cost is $851,651.
· Scenario 3 is based on the difference between an absent-accident trajectory in which the plaintiff would have moved into assisted living at the age of 90, and instead as a result of accident-caused injuries and loss of function, has to move into assisted living at the age of 80. Her need to move into assisted living in this scenario has been accelerated by 10 years. Estimated cost is $484,500.
· Scenario 4 is based on the difference between an absent-accident trajectory in which the plaintiff would have moved into assisted living at the age of 90, and instead as a result of accident-caused injuries and loss of function, has to move into assisted living at the age of 80, but like Scenario 2 also reflects that, between the ages of 75 and 80, the plaintiff will have ever increasing care-needs in her home before she transitions to assisted living. Estimated cost is $701,451.
· Scenario 5 is based on the difference between an absent-accident trajectory in which the plaintiff would have moved into assisted living at the age of 90, and instead as a result of accident-caused injuries and loss of function, has to move into assisted living at the age of 85 (a 5-year acceleration instead of a 10-year acceleration), but like Scenario 2 also reflects that between the ages of 80 and 85, the plaintiff will have ever increasing care-needs in her home before she transitions to assisted living. Estimated cost is $414,751.
[117] Counsel for Ms. H. submits that Scenario 2 is the least conservative, whereas Scenario 5 is the most conservative. Scenario 5 has several built-in assumptions that reflect both Ms. H’s aspirations for her recovery as well as several probable outcomes as a result of her condition and need for care.
[118] Ms. H. is seeking Scenario 5 as a reasonable assessment because, notwithstanding her current limitations, she remains a highly independent woman who wants to remain living in her own home. The reality is that Scenario 5 may not be the most probable. However, it is the scenario that the plaintiff is claiming. The caselaw makes it clear that injured parties should be encouraged to stay in their own home if they wish to do so. Keeping in mind that my task is to assess damages, and that there is no precise mathematical formulation, I am inclined to accede to Ms. H.’s claim. If I were to consider some of the other scenarios, I may then attach deductions for additional contingencies that could result in a similar assessment in any event. I have concluded that Ms. H.’s request of Scenario 5, although optimistic, is also fair and reasonable and I am acceding to it. Accordingly, this scenario results in damages as follows: Future assisted living $198,500 and Future in-home care $217,000.
Case: Harper v Mezo, 2024 BCSC 874 (CanLII)
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