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The Health of the Marriage

Can I be compensated for things like vibrators if they’re necessary for me to get my mojo back after a serious injury?  How will the court figure out what will help me?

In reasons released this week, the British Columbia Supreme Court discussed damages owing to a fellow left with significant injuries after an incident between an ATV and a police car (Parlby v Starr et al 2017 BCSC 2353).  The plaintiff was ejected from the ATV and suffered devastating injuries, including an incomplete spinal cord injury.  Friends and family described him as a shell of his former self, and his wife testified that the plaintiff would sometimes start crying in the middle of dinner for no reason.  He had significant ongoing pain, difficulties with mobility, and problems with his bladder and bowels.  His relationship with his wife had been impacted significantly – including their intimate life.

Two physicians provided reports that outlined the impact of the plantiff’s spinal cord injury on his sexual functioning, together with a number of items aimed at ameliorating the impact of his injuries on that part of his life.  A nurse, Ms. Landy, provided a cost of future care report outlining the expense of those items.  Altogether, the court awarded the plaintiff a total of $21,923.00 for items like a vibrator, ongoing Cialis use, and sexual positioning cushions:

5.               Sexual Health

[531]     Mr. Parlby estimates the cost of care under this heading at $26,764 to approximately $29,000. Dr. Elliot recommended the use of Cialis to address the erectile dysfunction caused by the injuries Mr. Parlby suffered in the Collision and Rollover. Based on her recommendation, Ms. Landy recommends a lifetime supply of Cialis at a cost of $60 per month or $720 annually (present value $22,972). Based on Dr. Elliot’s other recommendations, which include a vibrator and sexual positioning cushions, Ms. Landy also recommends the vibrator be replaced every five to seven years at a cost that ranges from $80 to $300 (present value $399 -$2,606) and the cushions, every five years at cost $500 plus tax (present value $3,303).

[532]     Again, the Police Defendants argue the cost of medication is medically unjustified based on the plaintiff’s statement to Dr. Elliot that his sex drive has not really changed and his testimony that his relationship with Ms. McLauchlan has actually improved, ignoring the medical opinion evidence regarding Mr. Parlby’s sexual dysfunction, as well as other aspects of Mr. Parlby’s testimony and that of Ms. McLauchlan. The Police Defendants also argued Mr. Parlby is unlikely to take the Cialis, and there is no evidence to suggest he sees a need for a vibrator or the pillows.

[533]     Dr. Elliot emphasized the importance of normalizing and maintaining Mr. Parlby’s sexual life for as long as possible to his self-esteem and the health of the marriage. She explained normalizing sexual function also helps with the psychological adjustment to the new reality faced by those with spinal cord injuries. Her recommendations attempt to fulfill those objectives and therefore accord with the purpose of an award for the cost of future care.

[534]     Given my findings with respect to the benefits of psychological treatment, I accept that Mr. Parlby is likely to comply with Dr. Elliot’s recommendation regarding Cialis. Given the rate of erectile dysfunction for men after age 40 and Mr. Parlby’s history of smoking, I consider a 20% deduction from that portion of the award to be appropriate, bearing in mind there was no suggestion older men with erectile dysfunction typically take a daily dose. Accepting Mr. Parlby will likely attempt to use the other items I am not certain he will continue to do so over the long time and therefore regard a 40% reduction to that portion of the claim to also be appropriate.

[535]     The plaintiff is awarded $21,923 under this heading.

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