Tag: Special Damages

Medical Marijuana Costs Deemed Recoverable in BC Personal Injury Claim

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.
In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice.  The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana.  Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.

Medical and Transportation Costs Need To Be Assessed "In The Real World"


When suing an at fault party in a personal injury claim the Plaintiff is entitled to compensation for their reasonable medical expenses.  These expenses may include the cost of driving to and from various medical and therapy appointments.  How much is a reasonable amount to claim for transportation costs?  Reasons for judgement were released today addressing this topic.
In today’s case (Greewal-Cheema v. Tassone) the Plaintiff was injured in a 2007 BC motor vehicle accident.  Her vehicle was rear-ended.  Fault was admitted by the rear motorist.  The trial focused on the value of her ICBC claim.
The crash caused soft tissue injuries which largely recovered by the time of trial and the Plaintiff was awarded $25,000 for her pain and suffering.  In the course of recovering from her injuries the Plaintiff attended various therapies and claimed reimbursement at $0.50 per kilometer for the travel incurred in driving to and from these appointments.  ICBC argued that this was excessive and that no more than $.30 per kilometer should be allowed.  Mr. Justice Stewart disagreed with ICBC and found that the Plaintiff claimed a reasonable amount for her mileage related expenses.  In reaching this conclusion the Court provided the following useful comments:
[60] The plaintiff claims special damages of $2,683.50.  The defendants take issue with only a few things.  The defendants say that the amount allowed for mileage should be $.30 per kilometre not $.50 per kilometre.  Both counsel refer to the Schedules that form part of the Rules of Court.  I am not bound by the Rules on this point.  I say that what matters is that judges live in the real world.  In this day and age $.50 per kilometre is, if anything, too little.  I am against the defendants.  $.50 per kilometre it will be.  The defendants also made a submission about the period June 5, 2008 to August 25, 2008 and what the plaintiff was about during her “voluntary work strengthening program”.  Simply put, I found the defendants’ submission unconvincing.  I accept the plaintiff’s testimony to the effect that she worked hard and diligently and treated what she was about as if it were her job.  In the result I award the plaintiff $2,683.50 by way of special damages.

Gross vs. Net Special Damages At Trial in ICBC Claims

Special Damages are out of pocket expenses a Plaintiff incurs as a result of the fault of another.  In an ICBC claim some of the typical special damages are costs for therapies and medication.
When a tort claim goes to trial a Plaintiff is entitled to recover their special damages from the at fault party.  There is a very important exception to this in ICBC Claims, and that is if the Plaintiff’s special damages are covered by his own ‘no-fault’ insurance from ICBC an at fault defendant is entitled to reduce the amount of special damages by the amount the Plaintiff claimed or could have claimed under their own policy of insurance.  (You can click here to read a previous post of mine for more background on this topic)
At trial, then, should a Plaintiff advance a claim only for expenses that have not already been covered by ICBC or should they advance a claim for all of their out of pocket expenses?  Reasons for judgement were released today by the BC Court of Appeal addressing this.
In today’s case (Gasior v. Bayes) the Plaintiff was injured when his bicycle was struck by a vehicle.  At trial a Jury awarded the Plaintiff $488,500.  The trial judge then reduced portions of this award to account for ‘no-fault’ benefits the Plaintiff would be entitled to.
ICBC, on behalf of the defendant, appealed arguing that the trial judge was incorrect in some of her deductions.   The Defendant claimed that a Plaintiff has to advance all of their special damages at trial (including money already reimbursed by ICBC) so that a proper deduction can be made after the special damages are assessed.  The Court of Appeal disagreed and provided the following useful practice tip:
[17] The defendants argued that under the provisions of s. 25 of the Act, it was only appropriate for a plaintiff to advance a claim for all special damages (gross basis), allow the trier of fact to pass on this figure and make an award, and thereafter permit the defendant to deduct from such award all no-fault benefits previously advanced.  This methodology has some attraction on the basis of simplicity (and avoidance of the sort of confusion that seems to have bedevilled this case).  However, as pointed out by counsel for the plaintiff, when trying to conform to such methodology in a case before a jury, it becomes very difficult to avoid references to insurance and the insurer.  As well, it may be difficult for a plaintiff to become aware of all expenditures paid on a no-fault basis by the insurer.  If these hurdles could be satisfactorily overcome, the methodology argued for by the defendants may be preferable, but I consider that advancement of a special damages claim on a net basis can be an acceptable approach, especially in a jury trial.  That methodology which will most effectively avoid the possibility of any infringement of the rule against double recovery is to be favoured and I would leave it to the good sense of counsel and trial judges to seek to achieve such result in any given case.  Clear communications between respective counsel and the trial judge are essential for the achievement of such result.  I would note there was some deficiency in clarity of communication in this case.

How Much Is My BC Injury Claim Worth? – A Video Discussion

Here is a video I recently uploaded to YouTube discussing some of the factors that go into valuing a BC Personal Injury Tort Claim:

One of the most frequent questions I’m asked as a BC Personal Injury Lawyer is ‘how much is my claim worth?’.
This is an important question for anyone injured through the fault of another in British Columbia.  When negotiating with ICBC (or another Insurance company) the playing field is typically imbalanced in that the Claims Adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing these claims and may need help valuing your losses.
It is important to empower yourself for the negotiation because in tort claims the insurer is negotiating on behalf of the person that injured you.  With this in mind, here is a brief video introduction discussing some of the common ‘heads of damages‘ that are frequently addressed in BC personal injury lawsuits.  I hope this information is of some assistance and helps to balance the playing field.

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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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