Cost of future care – review

Posted on by caselawcorner

We are going to review the test in determining an award for cost of future care by highlighting several quotes from cases that are often referenced at trial.  In addition, we will review the cost of future care considerations in a recent trial decision referenced as Dornan v. Stephens, 2019 BCSC 701 (CanLII).

The test for determining the appropriate award under the heading of cost of future care is an objective one, based on medical evidence.

There must be a medical justification for the claims
They must be reasonable
Relate to the medical needs of the Plaintiff
Must not simply improve a Plaintiff’s enjoyment of life

Milina v. Bartsch, 1985 CanLII 179 (BC SC), [1985] B.C.J. No. 2762 (S.C.).

In O’Connell v. Yung, 2012 BCCA 57 (CanLII) quoting from:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 (CanLII)

Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person’s best interest. Then they calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.

In Penner v. Insurance Corp of British Columbia, 2011 BCCA 135 (CanLII) at para. 13, the court noted that common sense should inform awards of costs of future care, quoting from Travis v. Kwon, 2009 BCSC 63 (CanLII)

  • Claims for cost of future care have grown exponentially following the decisions of the Supreme Court of Canada in the trilogy of decisions usually cited under Andrews v. Grand & Toy, Alberta Ltd., 1978 CanLII 1 (SCC),[1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.
  • note that damages for future care grew out of catastrophic injuries
  • They were meant to ensure that a catastrophically injured plaintiff could live as complete and independent a life as was reasonably attainable through an award of damages.

In Drodge v. Kozak, 2011 BCSC 1316 (CanLII), the court considered what was reasonably necessary to preserve a plaintiff’s health, and noted at para. 194:

194  … the court should examine whether on the evidence the plaintiff has used the items or services in the past and whether the plaintiff will likely use the items or services in the future: [citations omitted.]

In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 (CanLII) at para. 39; Gao v. Dietrich, 2018 BCCA 372 (CanLII)

  • To prove that a claim for cost of future care is medically justified, it is acceptable that:
  • The evidence be sought by a health care professional other than a doctor such as an occupational therapist;
  • But there must be a link between a physician’s assessment of pain, disability, and recommended treatment and the recommended future care item.

In using an OT regarding a cost of future care report, ensure they are providing evidence that falls within their scope.  Example:  giving opinions as to the need for future medications or counselling is beyond their scope of expertise. Delahay v. Holder, 2005 ABQB 283 (CanLii)

Izony v. Weidlich, 2006 BCSC 1315 (CanLII) at para. 74; O’Connell v. Yung, 2012 BCCA 57 (CanLII) at paras. 55, 60, & 68-70.

[111]     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.”

A few points of consideration regarding cost of future care from Dornan v. Stephens, 2019 BCSC 701 (CanLII):

The Plaintiff’s claim for cost of future care:  $165,513
Actual award at trial: $59,661.00

A comprehensive costs of future care assessment report was not presented at trial in this case.  An economist prepared calculations based on the medical evidence.  The defence challenged the amount claimed as “inflated” and “not justified”.  Some calculations were calculated over “life” but the evidence did not support this duration.

  • Eg. Medications were not recommended over lifetime by a medical expert
  • The report stated that meds should be taken “as long as it is helpful”
  • The Plaintiff did not provide evidence of the benefits of the medication during the litigation
  • The Defendant submitted that 10 years for the medication was appropriate.

As the Plaintiff did not provide sufficient evidence to substantiate the claim, the Court awarded costs of the medication over 10 years only.

  • Note: stating “ongoing use” of a medication is not clear. The medical evidence should be more precise and should identify “how long” or “for how many years” the medication will be required.
  • Physiotherapy was awarded – again over 10 years time only, not for “life” due to improvements noted in the Plaintiff’s physical symptoms

Description  Amount

Non-Pecuniary Damages  $140,000
Past Loss of Income  $44,548
Future Loss of Income Earning Capacity  $210,000
Costs of Future Care  $41,762
In-Trust Claim  $10,000
Special Damages  $31,696

Total  $478,006.00

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