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.