I feel that I need a great deal of future care to maintain my function. Will the court make the defendant pay for this for the rest of my life? What factors will be considered?
The case of Jamal v. Kemery-Higgins (2017 BCSC 213) was previously summarized for its analysis of mitigation and expert opinions. Today I will set out how Madam Justice Morellato dealt with the issue of future care. Ms. Jamal (the victim/plaintiff) advanced a claim for $17,905.00 in “one-time care”, and a claim of $217-242,000.00 for ongoing services for things like counselling, mood medication, massage, yoga, and household services including grocery delivery. The defence took issue with a number of her claims.
Before assessing their positions, Justic Morellato first set out the purpose of future care awards:
[102] In Gignac v. Rozylo, 2012 BCCA 351, the court affirms the purpose of awards of costs for future care as follows:
[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.
She went on to discuss the legal test as stated by McLachlin J. (as she then was) in Milina v. Bartsch [1985] BCS No 2762 (SC) as an objective one, based on the medical evidence; that the claims (1) must have medical justification and (2) must be reasonable. Justice Morellato noted that the evidence of a medical doctor is not necessarily required to establish medical justification – as a rehabilitation expert may suffice (paragraph 105, citing Gregory v. Insurance Corporation of British Columbia 2011 BCCA 114.
She awarded for most of the one-time expenses sought, and much of the ongoing care. However, she rejected the claims for ongoing kinesiology, massage therapy, yoga, and grocery delivery services, providing the following practical determinations on these points:
[130] I am not persuaded that the services of a kinesiologist is warranted. Ms. Jamal previously sought such services without success. Moreover, Mr. Smith notes that Ms. Jamal reported to him that a component of her physiotherapy services includes instructions on a home exercise regime relating to strengthening and stretching, which she noted Ms. Jamal continues to perform and adhere to daily. Mr. Smith opines that since Ms. Jamal will continue to be supported by physiotherapy to manage her symptoms and she has already been instructed on an exercise regime through physiotherapy, he is unclear on the justification for kinesiology services, in particular with regard to the recommended frequency of 24 sessions. Given the evidence before me, I am not persuaded that kinesiology services are justified or reasonable, nor am I persuaded that massage services are justified and reasonable. Ms. Jamal will have access to physiotherapy treatments to manage symptoms and periodic flare-ups.
[131] In regard to the request for an award to pay for the cost of yoga, the evidence before me does not demonstrate this added service is justified or reasonable particularly in view of, and in addition to, the other future care services that will be provided to Ms. Jamal.
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[134] As regards the cost of grocery delivery services, I am not persuaded this cost is justified or reasonable. I prefer the evidence of Mr. Smith to Ms. Walker in this regard. Mr. Smith concludes Ms. Jamal is able to carry groceries without injury. He found that “Ms. Jamal, despite providing low effort, was able to safely manage loads in the 10 lb. range in testing, sufficient to allow for carrying of groceries”. The cost for grocery delivery services is declined.
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