If a plaintiff has previously been injured, and the previous injuries require some ongoing treatment, can she/he claim for compensation for future treatments? The claim for future treatment expenses is called “cost of future care”. What is the purpose of this compensation for future possible expenses and how are those possible expenses proven?
Reasons for judgment were released last week in the case of Tourand v. Charette 2015 BCSC 2165. The plaintiff had been in seven previous motor vehicle collisions, several of which caused her injury. On October 15, 2009, she sustained injuries in an eighth collision, and those injuries were the subject of the lawsuit and judgment. After reviewing all of the evidence, Mr. Justice Joyce concluded that while the plaintiff received occasional chiropractic treatments leading up to the subject collision, he was “satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question”.
The purpose of providing compensation for the cost of future care is to restore the plaintiff to the position she/he would have been in absent the collision. While the plaintiff had been receiving some chiropractic care leading up to the collision, there was much evidence before the court about the new post-collision treatments that plaintiff employed on an ongoing basis to manage her symptoms. In awarding $51,420.00 to account for the cost of the plaintiff’s future care, Mr. Justice Joyce summarized the law on the purpose and evidentiary standard for this head of damages:
[152] The purpose of and the test for the award of the cost of future care was stated by Bennett J.A. in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29 – 30:
[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” (Milna v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C. and adopted in Aberdeen v. Zanatta, 2008 BCCA 420 at para. 41).
[153] Based on my review of the authorities put forward by the parties, I agree with the plaintiff that she need not go so far as to prove that a future care cost is medically necessary, but there must be an evidentiary link between the evidence regarding the plaintiff’s pain and disability and recommended treatment and the care recommended by a qualified health care professional (see Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 39).
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