In recent months ICBC is getting more aggressive in separating part 7 benefits claims and tort claims. In addition to seeking to settle tort claims while leaving part 7 benefits claims open ICBC also appears to be bringing more applications for post trial deductions of part 7 benefits.
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering and rejecting an ICBC request to deduct significant damages from an award for future care.
In today’s case (Canning v. Mann) the Plaintiff was injured in a 2015 collision. She was rendered totally disabled as a result. At trial a jury found the Defendant 80% at fault for the crash. Damages were assessed including substantial damages for future care. The Defendant brought an application seeking to reduce the award by over $130,000 arguing that an ICBC homemaking benefit is available. Mr. Justice Basran rejected this argument noting this is a discretionary benefit and the test for securing it was not met. In dismissing this portion of the application the Court provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing future care damages in the case of paraplegia.
In today’s case (Warick v. Diwell) the Plaintiff was involved in an “extremely serious” collision in 2009 where an oncoming semi truck/trailer crossed into their lane. The Plaintiff’s husband and two friends were killed as a result of the impact. The Plaintiff suffered profound injuries and was left paraplegic.
The parties settled all aspects of their claim except the future care costs. The Court provided the following summary of applicable legal principles in future care assessments prior to assessing the Plaintiff’s significant damages.
 The essential principles that determine an award for the cost of future care are not really in issue in this case, with each party simply emphasizing different aspects of the same overall body of authority in their submissions.
 With respect to the standard of proof to be met, “[a] plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities … that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation…”: Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).
 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.).
 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.
 The question has often been framed as being whether a reasonably-minded person of ample means would be ready to incur a particular expense: Andrews v. Grand & Toy Alberta Ltd.,  2 S.C.R. 229 at p. 245.
 The evidence with respect to the specific care required does not need to be provided by a medical doctor: Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, (S.C.) at para. 182. However, 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: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39.
 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.
 While no award should be made in relation to an expense that the plaintiff will not actually incur (Izony v. Weidlich, 2006 BCSC 1315 at para. 74), the focus of inquiry when a justified item or service was previously unused, is whether it is “likely to be incurred on a going forward basis”: Gilbert v. Bottle, 2011 BCSC 1389 at para. 251.
 A plaintiff is not entitled to an award for that portion of their costs of future care that will be publicly funded. However, the risk that access to public funds may be lost in future is a proper basis to provide a contingency in the award: Boren v. Vancouver Resource Society for the Physically Disabled, 2003 BCCA 388 at para. 25.)
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:
 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.
 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.
 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.
It pays to take reasonable efforts to get better. Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.
In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future. The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow. The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments. In reaching this conclusion Mr. Justice Kelleher provided the following reasons:
 The facts of this case represent a textbook example of a failure to mitigate. There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer. Their recommendations are remarkably similar. Mr. Maltese has chosen to ignore them…
 I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.
 Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages.
 On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…
 In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program. The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.
 But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages. I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future. After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning. He has not done so. I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.
It is a well recognized principle that if a spouse needs to provide extraordinary services in caring for an injured loved one harmed by the negligence of others that this time can be compensated as an ‘in trust claim’ in the Plaintiff’s personal injury action.
What if the tables are turned, however, and the Plaintiff cares for a loved one but due to injuries to the Plaintiff he/she becomes unable to provide the care they otherwise would for their spouse? The BC Court of Appeal released reasons for judgement, in a two one split, finding that such damages for such a loss are not ‘foreseeable’ unless they are taking place or contemplated at the time of the tort.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision. These had long term limiting consequences. Subsequent to the collision the Plaintiff’s husband became ill. The evidence proved that but for the injuries the Plaintiff would have cared for her husband. The Court compensated the Plaintiff $30,000 for this loss. In overturning this award, the BC Court of Appeal held it was not a foreseeable loss as this care was not “taking place or contemplated” at the time of the crash. The majority provided the following reasons:
 With respect, I disagree that the loss in this case reasonably could be foreseeable even under that standard. At its core, the award here is based merely on the fact that, at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind. This did not make such care reasonably foreseeable at law. It might never occur: the respondent could die before care was required; the need for care might never arise; her surgery could eliminate the problem or diminish it significantly; or, her full-time employment may have eliminated or diminished her ability to provide care regardless of the accident. While plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a “real risk” in “the mind of a reasonable man in the position of the defendan[t]”.
 In my view, the costs associated with caring for the respondent’s husband are too remote to be recoverable. As aptly stated by the Chief Justice in Mustapha, recoverability is based on reasonable foresight, not insurance.
 The appellant also argued that even if damages were recoverable for the respondent’s diminished ability to care for her husband, as not too remote, as they were in Lynn, they would be recoverable under the heading of non-pecuniary damages and not as damages for loss of future care. I need not address this issue and leave it for a case in which it is engaged.
 In my view, costs arising from the diminished ability to care for a disabled spouse of a plaintiff where no such care is required or contemplated at the time of the tort are not foreseeable at law; they are too remote.
 I would allow this appeal and reduce the award of damages for the costs of future care by $30,000.
The decision also includes a well reasoned dissenting decision by Mr. Justice Donald which can be found starting at paragraph 36.
Reasons for judgement were released last week by the BC Court of Appeal discussing future care awards and the appropriate analysis that trial judges should undertake when considering such awards.
In last week’s case (Gignac v. ICBC) the Plaintiff was injured in a 2004 collision. The Plaintiff’s injuries were expected to cause on-going difficulties. At trial the Plaintiff sought $115,975 for future care needs. This claim was awarded in full. ICBC appealed arguing that the evidence did not support some of the claims made and that the trial judge did not apply the proper analysis. The BC Court of Appeal agreed and reduced the award by almost $45,000. In doing so the BC Court of Appeal provided the following reasons:
 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.
 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 inAberdeen v. Zanatta, 2008 BCCA 420 at para. 41.
 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.
 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.
Reasons for judgement were released this week by the BC Court of Appeal largely upholding a trial award for damgages following a motor vehicle collision including damages for the cost of future pilates.
In this week’s case (Tsalamandris v. McLeod) the Plaintiff was injured in two collisions, the first in 2004, the second in 2006. At trial the Court found the collisions resulted in permanent injury and awarded damages accordingly. Included in these were damages of $93,000 for pilates for the Plaintiff’s life expectancy. The Defendants appealed this award arguing it was excessive. The BC Court of Appeal, while making a modest reduction in this award to account for negative contingencies, largely upheld the award. In doing so the Court provided the following reasons:
 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.
 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.
 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…
 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.
 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 therespondent’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.
 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.
(Update June 18, 2013 – the below judicial scrutiny survived review by the BC Court of Appeal)
Following recent judicial criticism of overly robust requests for future care costs, reasons for judgement were released last week by the BC Supreme Court, criticizing a “gold-plated” expert report.
In last week’s case (Jarmson v. Jacobsen) the Plaintiff was involved in a motorcycle accident. Although he sustained serious injuries and was awarded significant damages at trial, his claimed damages for cost of future care was met with skepticism. In criticizing the expert evidence on this point Mr. Justice Meiklem gave the following reasons:
The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.
Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.
Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.
Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.
Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.
Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, addressing whether future care damages can be awarded for health care items that are publicly available but more quickly available through private options. In short the Court held that damages can be awarded for these damages provided there is evidence that electing the private route is reasonable and subject to the possibility the expenses will actually be incurred.
In this week’s case (Engqvist v. Doyle) the Plaintiff suffered chronic injuries as a result of two collisions. These needed diagnostic nerve blocks and depending on the results rhizotomies. Both procedures were available through BC’s public healthcare system but private options were available on a much more expedient basis. The Plaintiff sought damages for the private procedures. ICBC argued this was not necessary.
Ultimately Mr. Justice Rogers awarded some damages considering the cost of these private interventions but was conservative in the award noting some “reservations” about whether the Plaintiff would actually undertake private treatments. In allowing damages for these items the Court provided the following reasons:
 The parties brought to trial conflicting views concerning the plaintiff’s claim for money to pay for private health care. That claim is for money to pay for private provision of four to six medial nerve block injections and, if the injections are diagnostic of further therapy, one or more rhizotomies upon the indicated nerves. The parties differed on whether the plaintiff should receive an award sufficient to pay for the injections and rhizotomies at a private health care clinic, or whether the plaintiff should confine herself to the free-to-her public health care system. The plaintiff plumps for the former, the defendants argue for the latter.
 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.
 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), 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.
 In Moussa v. Awwad, 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:
 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.
 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.
 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.
 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.
 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.
 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.
When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care. These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care. Can this evidence be admitted? This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision. The matter was arbitrated under UMP. In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members. ICBC objected to this report on several grounds. One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs. Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections). In addressing the hearsay component Arbitrator Yule provided the following useful reasons:
18. As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares. The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers. Cost of care expers routinely include informaiton regarding the costs of services in their reports. In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy. Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it. At paragraph 185 the Judge said:
I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health. I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them.
In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion.
19. As a practical matter, the admissibility of costing information on this basis makes eminent sense. If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay. Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time. Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.