In Warick v. Diwell, the Plaintiff was seriously injured in a head on collision in which other occupants of the vehicle were killed. The Plaintiff commenced legal proceedings, seeking compensation for numerous types of damages, all of which were settled with the exception of the cost of future care.

 

The Plaintiff suffered a variety of injuries, however the specific ones that the Court noted would have the greatest impact with respect to her care were the spinal cord injury which paralyzed her from the waist done; the numerous surgeries on her intestines and bladder ; and a hand and wrist fracture.

 

A variety of future cost of care items were in dispute, with the most significant one being the cost of home care of the Plaintiff, with the Court awarding over $3 Million as a present value of the ongoing cost. Other notable items included awards for medications, travel, housekeeping, and mobility aids.

 

In total, the Court would award slightly over $4.5 Million in future care costs to the Plaintiff, commenting :

 

[203]     Claims made for future care must be both medically justified and reasonable. An award “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health”:  Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at paras. 199 and 201; aff’d (1987), 49 B.C.L.R (2d) 99 (C.A.).

 

[204]     This requirement of medical justification, as opposed to medical necessity “requires only some evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”:  Harrington v. Sangha, 2011 BCSC 1035, at para. 151.

 

[207]     Damages for the cost of future care are assessed, not mathematically calculated:  Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31. There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

In Sunner v Rana, the Plaintiff was injured in a motor vehicle accident, and consequently advanced an ICBC claim. At trial, the Plaintiff was awarded numerous heads of damages, including the costs of future care in the amount of $20,000.00. ICBC’S lawyer appealed, arguing that the trial judge failed to provide adequate reasons for how the amount of costs of future care was arrived at.

 

ICBC’S lawyer also made the argument that section 83 of the Insurance (Vehicle) Act highlights the importance of particularization of the future care component, as certain items may be deductible. The Court of Appeal noted that the trial judge was not asked to particularize the future care component in any way, nor were the relevant portions of the legislation brought to his attention, which they should have been.

 

The Court of Appeal ruled that it was not possible to ascertain just how the trial judge arrived at the amount of $20,000.00. In citing previous Court of Appeal decisions in Johal and Gignac, the Court would rule that the trial judge committed a legal error by not engaging in an item by item analysis of the future care component.

 

Rather than substitute an award of its’ own, or dismiss the future care component of the Plaintiff’s claim, the Court remitted the issue back to the trial court.

 

[43]        The appellants contend that the trial judge’s reasons provide no indication of why he awarded the respondent $20,000 for the cost of future care.  He claimed $36,000 which the judge described as “25% of the higher amount estimated by Mr. Teasley”.

 

[46]        In Gregory, this Court reiterated at para. 39 that “there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional”.  A physician need not testify to the medical need for each item of care that is claimed.

 

[50]        The difficulty is that it is not possible to ascertain on what basis the judge arrived at $20,000 as an appropriate award for the costs of future care.  This Court has made it clear that an item by item analysis is required.  In my view, the judge erred by failing to do so.

In Lo v. Matsumoto, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, as well as various other types of damages, such as the cost of future care. At trial, the Plaintiff was awarded $5,000.00 for future care, however the Plaintiff appealed this amount to the British Columbia Court of Appeal. An award of $12,000.00 was made, with the Court making the following comments about what must be shown with respect to a claim for future care :

 

[18] The plaintiff submits that the trial judge was wrong to require that the plaintiff should have had to give positive evidence of his intention to pursue the various medical recommendations as a condition of awarding amounts for any of the items sought. Counsel suggests that since the costed items were recommended by one or more doctors, the onus should have been on the defence to show Mr. Lo would not have used them. In counsel’s submission, an “evidentiary link” was drawn in this case because Ms. Henry was relying on the recommendations of the physicians referred to in her report.

 

[20] I agree with counsel for the plaintiff that there is no hard and fast rule that requires a plaintiff to testify that he intends to use every item in the “wish list” of an occupational therapist in order to justify some award. On the other hand, a plaintiff must prove his case, both in terms of need and the likely utility of the item sought: see O’Connell v. Yung, 2012 BCCA 57 at para. 68. Where the costs claimed are not matters of absolute necessity, a plaintiff cannot assume that the court will simply accept the recommendations of occupational therapists or even of medical practitioners. Unfortunately in this case, Mr. Lo was not closely examined in chief or cross-examined on every item in the therapist’s report or on any discrepancies between his own testimony and what he had told the therapist.

A substantial component of an ICBC injury claim, particularly a more serious one, is that of the cost of future care. This can involve costs for various modalities of  treatment, costs for specialized equipment, costs for medication, and costs for healthcare professionals.

 

 

 

The costs must be reasonable, and must be medically necessary. Quite often, Plaintiff’s counsel will rely on expert medical reports stating that future care will be required, and will rely on cost of care analysis reports of occupational therapists.

 

 

 

In Gignac v. Rozylo et al., the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering, as well as other heads of damages, such as future care. The Plaintiff was awarded over $100,000 for future care, however this amount was reduced by about 40% by the British Columbia Court of Appeal, which stated that an analysis of each item claimed for future care must be conducted

 

 

 

[29]         The purpose of the award for costs of future care is to restore, as best as possible with a monetary award, the injured person to the position he would have been in had the accident not occurred. 

 

 

 

[30]         The award is “based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: (Milina  v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008 BCCA 420 at para. 41.

 

 

 

[31]         ICBC says that the trial judge did not examine each request and determine if there was an evidentiary link between the medical assessment and the care recommended by the occupational therapist and rehabilitation consultant. As Garson J.A. said in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39:

 

 

 

I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63.

 

 

 

[32]         The failure of the trial judge to perform an analysis of each item sought by the plaintiff with respect to whether there was “some evidentiary link between the physician’s assessment of pain, disability and recommended treatment and the care recommended by a qualified health professional” was a legal error. The trial judge has since retired, and therefore it is not appropriate to refer the matter back to the trial court as the costs to the parties would be significant. Instead, this Court can make the assessment.

In Tsalamandris v. McLeod, the Plaintiff was injured in two motor vehicle collisions, and brought ICBC claims for damages. At trial, the Plaintiff was successful. One of the awards was for $93,000 for the cost of future care for pilates. ICBC’S lawyer appealed, however for the most part was unsuccessful. The British Columbia Court of Appeal discussed the general test applied by the Court when awarding damages for the cost of future care.

 

[61]         The appellants allege that the trial judge erred in over-compensating for certain future care costs; namely, the cost of a Pilates programme, child care and a membership to a community centre.

 

[62]         The test for assessing future care costs is well-settled: the test is whether the costs are reasonable and whether the items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

 

3.         The primary emphasis in assessing damages for a serious injury is provision of adequate future care. The award for future care is based on what is reasonably necessary to promote the mental and physical health of the plaintiff.

 

[63]         McLachlin J., as she then was, then went on to state what has become the frequently cited formulation of the “test” for future care awards at page 84:

 

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

 

These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable.

[65]         The trial judge based her award on her finding that this particular Pilates programme was medically necessary in assisting the respondent manage her chronic pain and, consequentially, her chronic depression.  She relied on medical evidence that the respondent should continue with this programme indefinitely.

 

[66]         She also found that the use of the community centre, particularly the opportunity it gave to exercise in a therapeutic pool, was medically beneficial and that it was reasonable to include the respondent’s portion of a family membership as a cost of future treatment.  The appellants do not contest the benefit of exercising in the community centre, but argue that the failure to consider any contingencies results in over-compensation.

 

[67]         I am satisfied that there was evidence before the trial judge capable of supporting the inference that this particular Pilates programme offered the respondent benefits not available in other programmes and not easily replicated by exercising at home.  Similarly, the evidence is capable of supporting the conclusion that the respondent would benefit from using the programme consistently and continuously regardless of the “waxing and waning” of her depression.  I do not think the trial judge made any error in failing to recognize a negative contingency based on temporary improvements in the respondent’s depression.

In Engqvist v Doyle, the Plaintiff suffered from chronic pain, and sought damages for future care. The treatment that was sought was available through the health care system, but was also available privately. The private treatment, which was more expensive, could be obtained more quickly. The lawyer for ICBC argued that the private treatment costs were unnecessary. The Court granted some damages for the private treatment, however did express some concern with whether or not the Plaintiff would actually engage in such treatment.

 

[45]           The first point to address on this issue is that it does not concern the Canada Health Act. It does not require a philosophical discussion of the pros and cons of a general public health insurance scheme. Neither does the issue raise concerns about “queue jumping” by a well-resourced patient.

 

[46]           Instead, the fundamental issue is whether a particular future treatment modality is reasonably necessary to promote the plaintiff’s mental and physical health: Milina v. Bartsch 1985 CanLII 179 (BC SC), (1985), 49 B.C.L.R. (2d) 33 (S.C.). In the case of medial nerve blocks, the evidence at trial was clear that the plaintiff should undergo at least one set of medial nerve block injections. The evidence at trial was also clear that the plaintiff could access medial nerve block injections on a fee-for-service basis at a private health clinic pretty much at her convenience, while publicly funded medial nerve blocks require that the plaintiff go on a four- to six-month waiting list. Similar time frames apply to rhizotomy procedures if such are indicated by the nerve blocks.

 

[47]           In Moussa v. Awwad, 2010 BCSC 512 (CanLII), 2010 BCSC 512, Russell J. considered a similar claim. The plaintiff suffered a shoulder injury and, after a lengthy period of investigation and diagnosis, elected to pay for repair surgery at a private clinic. He claimed the cost of that surgery as a special damage. Russell J. allowed the claim, saying:

 

[266] While the cost of private care will not be an appropriate special cost in every case, given the plaintiff’s emotional uncertainty about surgery and his continuing pain, this is a rare case and I find it reasonable in this case that the plaintiff chose to pursue private surgery with the doctor that he trusted and so that he could have his pain relieved immediately. I therefore award the plaintiff the costs of the surgery.

 

[48]           In the present case, the evidence established that it is possible for the plaintiff to obtain nerve blocks and rhizotomies more quickly if she paid for them than if she waited for the public health system to provide them.

 

[49]           Private fee-for-service care, therefore, offers the plaintiff the possibility of alleviating her symptoms more quickly than the public system. That is the only point of commonality on this narrow issue between this case and Moussa. More particularly, the plaintiff testified that she wants to try the medial nerve block injections and would consider a rhizotomy. She is not, therefore, unsure or uncertain about the therapy. Unlike the plaintiff in Moussa, the plaintiff here did not testify that she has any feelings of trust in or loyalty to any particular medical practitioner.

 

[50]           The question in this case comes down to whether the plaintiff ought to mitigate her cost of future care by confining herself to the public health care system. That question can only be resolved by determining whether it is reasonable for the plaintiff to submit to the wait times and vagaries of the public health care system, thus increasing the length of time before she will know if a rhizotomy will reduce her pain. Private provision of medial blocks will considerably accelerate her coming to know whether a rhizotomy will likely help her.

 

[51]           Reasonable in this context must be measured by an objective standard. What is reasonable in a given case must take into account not only the wait times involved, but also the degree of the plaintiff’s pain while sitting out those wait times and the effect that that pain will have on the plaintiff’s enjoyment of life. A minor ache in one’s little finger would be unlikely to be sufficient to underwrite expensive privately funded health care while a case of surgically curable paraplegia probably would.

 

[52]           Accepting as I do the plaintiff’s evidence concerning the pain she has and its interference with her everyday life, I find that the plaintiff’s pain and its interference with her enjoyment of life is sufficient to merit acceleration of treatment via funding of private health care.

 

[53]           That said, this is future care that we are talking about here. Nothing about the future is certain; including whether the plaintiff will or will not actually undertake privately funded medial nerve blocks or rhizotomies. I have reservations about the plaintiff’s resolve in that regard. I have those reservations because, on the one hand, the plaintiff testified that she would like to undergo a rhizotomy and would do so at a private care facility if she had the resources to pay for it. On the other hand, the plaintiff knows that she should be called for Dr. McCann’s publicly funded medical referral for the medial nerve blocks, which are necessary diagnostic precursors to a rhizotomy, sometime in November or December 2011, yet the plaintiff has absented herself from the province for five months in order to go to her holiday home in Arizona. The plaintiff did not testify that she would travel back to B.C. to take advantage of publically funded medial nerve blocks if she is called in November or December. Neither did the plaintiff testify that she would travel back to B.C. to undergo that therapy at her own expense at a private clinic. The plaintiff did not adduce any evidence that such treatment is available or at what cost in Arizona. Public versus private medical care was a centerpiece of the parties’ lis in this case. The gap in the evidence concerning the plaintiff’s intentions is, therefore, a puzzle.

 

In Harrington v Sangha, the Court held that Pharmacare benefits are non-deductible from a cost of future care award.

 

[157]      The defendants say the plaintiff should not recover any portion of the cost of medication she may require, as she is eligible to receive PharmaCare benefits. They say that to allow a capital sum as part of the award to fund expenses that will eventually be repaid by a government funded programme will result in double recovery. In support of that proposition they rely upon cases that establish that while the principal goal of the tort compensation system is to ensure that injured individuals are made whole, insofar as possible, by compensation, a secondary objective of the system is to avoid double recovery.

 

M.B. v. British Columbia, 2003 SCC 53 (CanLII), 2003 SCC 53; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 (CanLII), 2002 SCC 9; Boren v. Vancouver Resource Society et al., 2003 BCCA 388 (CanLII), 2003 BCCA 388.

 

[158] The short answer to that argument is that where the benefit in question is not available to individuals, because they have a remedy against a tortfeasor, where there is a provision in the plan for subrogation, or where there is an obligation on the recipient of the benefit to repay the benefit from the proceeds of litigation, an award will not result in double recovery. The availability of benefits paid on such terms should not reduce the award.

 

[159] As this court noted in MacEachern v. Rennie, 2010 BCSC 625 at para. 422:

 

Medication costs required as a result of a motor vehicle accident must be paid for by a motor vehicle insurer, and in such a case, PharmaCare is the insurer of last resort.

 

[160] It was the evidence of Mr. Moneo that the PharmaCare programme is not intended to be available to persons who have a tort claim for the cost of their medications. Counsel seeking to have the deduction made from the award was reduced to arguing that there will be double recovery if the plaintiff recovers an award for the cost of her medications and conceals the award from PharmaCare or if she squanders her award and again becomes dependent on the state to pay for her drug expenses.

 

[161] The award in this case is made in the expectation that Ms. Harrington will report the outcome and use the award as intended. The judgment cannot be founded upon the presumption that the plaintiff will make a fraudulent PharmaCare claim. In any event, PharmaCare will be aware of this judgment, having made submissions and having been given standing to address the issue.

 

[162] There is no real risk of double recovery in this case and no basis for an award other than that which is necessary to ensure the plaintiff will be in a position, without relying upon the state, to pay the cost of the drugs she requires.

In Gregory v ICBC, the British Columbia Court of Appeal weighed in on the issue of the type of expert evidence required to prove damages for future care. The trial judge had accorded very little weight to the evidence of an occupational therapist. The Plaintiff was successful, in part, on appeal.

 

[39]                  I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional

 

[46]                And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.

 

[47]               The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance.  In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.

 

[48]           Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.

 

[49]           That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above.  I would substitute an award of $30,000 over and above the amount already awarded under this head of damages.  This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.

In O’Connell v Yung, the Plaintiff suffered serious injuries, and required daily care and supervision. Eventually, her husband assumed the role of primary caregiver. At trial, the Plaintiff argued for future care costs in the form of hiring health care professionals to care for her. ICBC argued that any award should take into account the fact that  her husband was there to help her. The Court rejected this argument, and went on to award the Plaintiff over $2,200,000 in future care costs. The British Columbia Court of Appeal would later reduce this amount by approximately $300,000

 

[124]     I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her.  A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

 

[125]     The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services.  The majority of the court stated at p. 75:

 

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

 

[128]      Having said this, it is also my view that these principles do not require that Mr. O’Connell’s presence in the home should be entirely disregarded, as the plaintiff submitted.  While I agree that it must be assumed that all of Ms. O’Connell’s medically required care is to be provided by paid caregivers, I do not agree that the court must assume that the plaintiff lives alone. I will come back to this when I review the recommendation for personal care services.