BC Court of Appeal Discusses Evidence For Cost of Care Awards

Reasons for judgement were released today by the BC Court of Appeal addressing the evidence needed to justify an award for cost of future care.
In today’s case (Lo v. Matsumoto) the Plaintiff was injured in a 2009 collision and was awarded damages at trial.  The Plaintiff appealed the trial judgement arguing the damages for cost of future care was unreasonably low and that the trial judge was wrong in requiring the Plaintiff to testify as to the intention to pursue all recommended care items.  The BC Court of Appeal modestly increased the award for care and in doing so provided the following comments on the evidence required to justify such a claim:

[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.

[19]        As well, counsel for the plaintiff referred us to evidence given by Mr. Lo that he had obtained physiotherapy, although he had not done so within the 12 months prior to trial. At the end of the day, counsel suggested an award of $100,000 would have been appropriate, but did not explain how she had reached that figure.

[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.

bc injury law, Cost of Future Care, Lo v. Matsumoto

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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