Future Care Claims: What Expert Evidence Is Needed?
Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.
In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care. In support of this claim the Plaintiff relied on the opinion of an occupational therapist. This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.
The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim. The BC Court of Appeal agreed in part and increased the assessment by $30,000. In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:
[38] Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:
[182] The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.
See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.
[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…
[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.