Legal Resource: Reduction of Cost of Future Care Award
Today’s article will reference a number of decisions that outline the test as it pertains to cost of future care awards. We will also quote from a recent 2024 published case that reviews items being claimed totaling $44,443, and go over the Court’s basis for reducing the award to $10,850.
The Referenced Case Law
Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29-30:
Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at para. 274, 1985 CanLII 179 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.) at para. 184.
Audet v. Chan, 2018 BCSC 1123 at paras. 113-115, citing Milina at para. 211;
Hardychuk v. Johnstone, 2012 BCSC 1359 at paras. 210–212.
Patterson v Gauthier, 2019 BCSC 633 (CanLII), citing:
Manky v. Scheepers, 2017 BCSC 1870 at para. 154.
Moges v. Sanderson, 2020 BCSC 1511 at para. 168.
L.A.F. v. G.M.F.C. Ltd., 2019 BCSC 2252 at para. 210; Athey at para. 35
The test
When determining a cost of future care award, the court should try to restore the plaintiff, as best as possible with a monetary award, to the position he [she] would have been in had the accident not occurred. The award is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. A claim for future care is established if there is medical justification for the claim, the claim is reasonable, and the expense is likely to be incurred by the plaintiff. Once a claim is established, to assess costs of future care the court requires evidence of the amounts claimed. A future cost of care award can be justified without the need for expert reports. It is appropriate to apply a discount to a future care costs award to take into consideration the plaintiff’s pre-existing condition and intervening events. The amount applied may be different than what is used to discount other awards such as loss of earning capacity.
Items being claimed by the Plaintiff, totaling $44,443 in cost of care items:
a) Psychologist – 20 visits at $225/session ($4500)
b) Occupational therapist – 6 visits at 144.67/session ($868)
c) Massage therapist – 45 visits per year for 5 years at $108/session (net present value $22,907)
d) Cannabis – $150/month for 10 years (net present value $16,168)
[262] This position is largely based on Ms. N’s report, with the exception that Ms. N. recommends 24 visits of massage therapy in the first year at $108/session ($2,592) plus 15 visits per year for every year thereafter, at $75/session ($1,125 annually).
The Defendants dispute the amount being claimed and take the position that only $5,000 for future cost for massage therapy is warranted.
Psychological treatments
Psychological treatments for chronic pain and stress was deemed warranted for the Plaintiff to develop strategies to cope with chronic pain and improve stress management. After considering positive and negative contingencies, this was discounted by 40% on the basis that treatment would have been required regardless of the MVA.
A lump sum award of $2,700 was awarded for future psychological services. This award represents 12 visits at $225/session.
Occupational Therapist
Intended to provide the Plaintiff with support for employment stability. This expenditure is not justified as vocational support has been provided by WCB.
Massage therapy
Based on the Plaintiff attending 46 sessions for massage therapy in 2023. The medical advice does not support such excessive use. The Plaintiff must stay active rather than receiving passive treatments. It was recommended that massage is to be used only when there are intense flare ups. 12 sessions per year, for 10 years at $108/session (totalling $12,960) is medically justified and reasonable. This award amounts to $1,296 per year. The multiplier for a discount rate of 2% over 10 years, is 8.9826. The net present value of this figure is $11,641. A 30% reduction from this award is warranted to take into account that this treatment would have been required regardless of the MVA. $8,150 was awarded.
Cannabis
None of the medical experts recommended use of cannabis. No award is allowed under this head of damages.
Conclusion
$10,850 award was deemed medically justified, reasonable, and likely to be incurred. This figure is comprised of $2,700 for a psychologist, and $8,150 for a massage therapist.
Case Link: Wagner v. Cooper, 2024 BCSC 986
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