Tag: Cost of Future Care

Baseball Bat Beating Leads to $7 million Damage Assessment

Written by ERIK MAGRAKEN on February 12, 2021. Posted in Cost of Future Care Cases, ICBC Brain Injury Cases.

In a tragic case reasons for judgement were published by the BC Supreme Court, Kamloops Registry, assessing damages in a personal injury lawsuit at nearly $7 million following a baseball bat attack.

In the recent case (Simpson v. Teichrieb) the Defendant “savagely battered” the teenage plaintiff with a baseball bat leaving him with “a catastrophic brain injury, have left Jessie requiring constant care and eliminated any prospect of employability.“.

At the time of the assault the plaintiff was 18 years old, 5’5” in height and weighed about 135 pounds. The defendant was 39 years old, 6’0” tall and weighed about 220 pounds. The Plaintiff was in the Defendant’s yard and the Defendant was concerned about possible theft. He beat the plaintiff nearly to death resulting in “a severe skull fracture and significant brain swelling. He had facial fractures and a notable bruise to his lower back in the shape of a baseball bat.”.

The Defendant was criminally convicted and sentenced to prison.

The bulk of the assessed damages reflect estimates of a lifetime of lost earnings and future care. In assessing non-pecuniary damages at Canada’s current rough upper limit of $393,000 Mr. Justice Dley provided the following reasons:

$9,076,854 Judgement For Plaintiff With Catastrophic Brain Injury Following Tractor Trailer Collision

Written by ERIK MAGRAKEN on September 4, 2020. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages at over $9 million for a Plaintiff who sustained life altering injuries following a tractor trailer collision.

In today’s case (Uy v. Dhillon) the Plaintiff’s vehicle was struck by a tractor trailer while driving on the Coquihalla highway in British Columbia’ interior. The Defendant denied fault but was found liable at trial with that finding being confirmed by the BC Court of Appeal.

This resulted in “a serious brain injury in the Accident that has resulted in a significant degree of cognitive impairment” for the Plaintiff. The brain injury rendered him totally unemployable with deficits so profound that he required “24-hour care and supervision for the rest of his life. “.

Upper limit non-pecuniary damages of $388,177 were awarded. The bulk of the judgement centered around the cost of 24 hour lifetime care which the Court assessed at over $7 million. In finding the injuries warranted non pecuniary damages at the rough upper limit Mr. Justice Skolrood provided the following reasons:

New Insurance Law Looks to Give ICBC and Government Control Over Your Health Care Choices

Written by admin on May 1, 2018. Posted in ICBC Minor Injury Caps.

I’ve written extensively about some of the troubling changes the government is proposing for collision victims through their ICBC legal reforms. One topic that has yet to receive any press, and is perhaps as concerning as any, is the Government’s proposal to give ICBC and themselves total power over what therapies collision victims receive.
If you are injured in a crash by a careless driver you have the right to choose your own health care treatments. If these expenses are deemed ‘reasonable’ you are entitled to be paid back the full cost of your expenses from the at fault driver’s insurance company (usually ICBC for BC based crashes).
This will all change if the NDP pass Bill 20. Instead an injured collision victim will be stripped in their ability to recover actual ‘health care losses’ from ICBC and recovery is reduced only to an amount that the government establishes by regulation. If your actual medical costs exceed this you are out of luck. The government is stripping your right to sue for the difference. Specifically proposed s. 82.2 reads as follows:

Liability limited for health care costs

82.2 (1) In this section, “health care loss” means a cost or expense incurred or to be incurred for health care provided by a health care practitioner.

(2) In an action for damages caused by a vehicle or the use or operation of a vehicle, a person may not recover, for a health care loss, an amount that exceeds one of the following:

(a) the amount, if any, that is established or determined for the particular health care loss under a regulation under section 45.1 (1) (a);

(b) in any other case, the value of the particular health care loss.

(3) If, for the purposes of this section, it is necessary to estimate the value of a health care loss, the value must be estimated according to the value the deferred health care loss has on the date of the estimate determined in accordance with subsection (2).

(4) This section applies only in relation to a health care loss resulting from an accident occurring on or after April 1, 2019.

If you are concerned about these changes contact your MLA and speak up now. Bill 22 is set to pass into law imminently and time to persuade government to divert course is quickly running out.

Court Declines To Reduce Care Award Where "Health Benefits Program for Aboriginal Persons" May Cover Expenses

Written by admin on November 14, 2016. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a cost of future care award for a First Nation’s plaintiff can be reduced where the federal government’s health benefits program for Aboriginal persons may cover the needed treatments.
In today’s case (Watkins v. Harder) the Plaintiff was involved in a 2012 rear-end collision that the Defendants accepted blame for. The Plaintiff was injured and was awarded damages for chronic soft tissue injuries at trial. These included damages for future care costs. The Defendants argued that these should be reduced by the amount of any payments that could be claimed under the health benefits program for Aboriginal persons. Mr. Justice Gaul refused to make the deduction and in doing so provided the following reasons:

[75] Mr. Benning estimates that the present day value of the costs of Ms. Watkins’ Tylenol 3 and Extra Strength Advil amount to approximately $12,500. The defendants do not challenge these costs but argue that, like the physiotherapy costs, the costs for these medications will likely be paid by the federal government under its health benefits program for Aboriginal persons. Consequently, to avoid Ms. Watkins’ unjustified double recovery, the defendants contend these costs should be deducted from any cost of future care award.

[76] Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035, which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77] In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902, the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78] Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990, Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79] In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.)).

[80] In H.L. v. Canada (Attorney General), 2001 SKQB 233, at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 at paras. 259-63).

[81] Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82] In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.

BC Court of Appeal Discusses Evidence For Cost of Care Awards

Written by admin on March 5, 2015. Posted in Cost of Future Care Cases. 47 Comments on 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.

"Textbook Example of Failure to Mitigate" Leads to Over $100,000 of Stripped Damages

Written by admin on January 10, 2014. Posted in Cost of Future Care Cases, Uncategorized.

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:
[55]         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…
[59]         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.
[60]         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.
[61]         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…
[77]         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.
[78]         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.

Judicial Analysis Required for Each Item Sought In Future Care Claims

Written by admin on August 21, 2012. Posted in Cost of Future Care Cases.

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:

[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 inAberdeen 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.

BC Court of Appeal Upholds Cost of Care Award for Pilates

Written by admin on June 13, 2012. Posted in Cost of Future Care Cases. 111 Comments on BC Court of Appeal Upholds Cost of Care Award for Pilates

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:

[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 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.

[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.

Cost of Future Care and Publicly Funded Benefits

Written by admin on November 28, 2011. Posted in Cost of Future Care Cases.

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:

[44] 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.

[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), 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, 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.

Cost of Future Care Reports and Hearsay Evidence

Written by admin on August 25, 2011. Posted in Civil Procedure, Cost of Future Care Cases, ICBC UMP Cases. 44 Comments on Cost of Future Care Reports and Hearsay Evidence

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.