How do courts determine a reasonable length of future care?
In the June 23, 2015 decision in Johal v. Meyede, 2015 BCSC 1070, Mr. Justice Fent makes a fresh determination in regard to a cost of future care award; after the Court of Appeal determined that it be remitted, the original reasons lacking detail. During the second hearing, defence counsel argued that most plaintiffs discontinue treatment within a period of time. Mr. Justice Fent considers the difficulties that come with predicting the future, but quickly dispenses with the defence argument, relying on the plaintiff’s personal attributes to gage her propensity to pursue treatment as time goes on:
[7] It is often a difficult task for a trial court to weigh the evidence of the past to make findings of fact to which the law is then applied. The task is more difficult where the court must consider the future with all the possibilities, risks and vagaries, and the other elements of futurity.
[8] As noted in the reasons at trial, Ms. Johal is an engaging and energetic individual who has tried hard to get better and address her symptoms. The Court has found that Ms. Johal has ambition and wishes to succeed in her chosen career.
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[10] At hearing, the defendants’ counsel taking a stand-back view argued that plaintiffs in positions similar to that of Ms. Johal usually discontinue most treatments within a period of time and he would “bet a really a really large amount of money” that Ms. Johal would discontinue massage treatments within 15 years.
[11] Generally speaking, when one has pain and discomfort, one seeks relief. It may be that in some instances some individuals finding no relief from pain and discomfort become morose and resigned to his or her fate. In the matter at bar, the Court finds, with respect, that the defendants’ argument is not consistent with Ms. Johal’s personality, drive, or her discomfort and pain, which is for the most part, chronic.
[12] If the defendants had at trial argued that Ms. Johal would resign herself to the pain and discomfort of her injuries within a period of time, plaintiff’s counsel may have argued that the future loss of income award should have been greater.
[13] Ms. Johal is a driven person who wishes to succeed in her career and be a mother. The future care costs will facilitate both goals. As noted, Ms. Johal has claimed for future care costs to age 65.
[14] As a check on the validity of the total, standing back and pragmatically viewed, the $90,000 award for future care costs for an otherwise healthy 30 year old with Ms. Johal’s injuries is reasonable.
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