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Self-Massage and Stationary Bikes

What will the court award me for my future care expenses?  What if my physiatrist recommends I get some expensive home exercise equipment, or a new desk chair?

In this week’s case, Justice Riley reviewed the legal test for future care awards in personal injury cases (Kagrimanyan v Weir 2018 BCSC 1458).  The plaintiff in this case, Ms. Kagrimanyan, was left with significant chronic pain after a motor vehicle collision.  While there was no care that could bring her back to her pre-crash status, the medical experts in her claim had recommended a number of treatments and physical aids to ameliorate the effects of the collision.  After the following review of the law, Justice Riley awarded Ms. Kagrimanyan $40,942.78 in future care expenses – including amounts for a stationary bike for her home, sessions to learn self-massage techniques, and a lifetime supply of an expensive anti-inflammatory cream (all of which had been recommended by the experts testifying before the court):

[86]         Damages for costs of future care are awarded to restore the plaintiff to his or her pre-accident condition, to the extent that it is possible to do so, based on what is shown to be medically necessary and reasonable to preserve or promote the plaintiff’s mental and physical health: Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at para. 29-30. The amounts claimed must be (i) justified based on medical evidence as to what is reasonably required to preserve or maintain the plaintiff’s health, and (ii) reasonable: Redmondat para. 174, citing Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at p. 84.

[87]         With regard to the medical justification arm of the test, medical need is not to be equated with necessity. The plaintiff is required to present “evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”: Harrington v. Sangha, 2011 BCSC 1035 at para. 151. Ms. Kagrimanyan relies on the testimony of the medical experts with regard to her prognosis and future treatment needs. The defendants accept that it is appropriate to order damages to cover the costs of future care that will “facilitate [Ms. Kagrimanyan]’s return to full functionality”. The evidence indicates that a full recovery is unlikely, but that various measures – including training or exercise to address deconditioning – could allow Ms. Kagrimanyan to better cope with her pain and to improve her functionality. These findings will guide my consideration of the particular special expenses claimed by Ms. Kagrimanyan, as discussed below.

[88]         With regard to the reasonableness arm of the analysis, the question is whether a reasonably-minded person of ample means would be prepared to incur the expense in order to treat, ameliorate, or cope with the injuries flowing from the defendant’s tortious conduct: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at p. 245; Warick v. Diwell, 2017 BCSC 68 at para. 205. Insofar as the cost of treatment is concerned, Ms. Kagrimanyan relies on the expert report of Mr. Hosking setting out the base costs, and the report of Mr. Carson setting out the present value for recurrent costs of future care. The defendants do not appear to take issue with the figures set out in these reports, although they do argue that certain amounts are either unjustified or unreasonable.

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