July 11, 2014

Kevin Gourlay

Kevin Gourlay

When clients have serious long-term injuries, they are entitled to a lump sum amount to pay for future care.  Justice Dickson said the following in Andrews 35 years ago:

Money is a barren substitute for health and personal happiness, but to the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim.

It is our job as the plaintiff’s lawyer to get the evidence to properly advance the claims for care that will sustain or improve our client’s health.  Medical doctors typically make general recommendations and occupational therapists are then tasked with trying to translate these recommendations into real world care items.  This can be a difficult task that mixes their medical training, the medical evidence, and common sense.  Sometimes we do see overzealous reports that itemize trivial items or items that are required as part of normal life rather than as a result of the accident.  In MacDonald v. Kemp, 2014 BCSC 1079, a recent decision of Mr. Justice Baird (available here), the Court was clearly unimpressed by care recommendations that undoubtedly fall into the former category:

[26]         In my view, a number of Ms. McDuff’s recommendations are neither medically justifiable nor reasonable. For example, in addition to recommending continued recourse to analgesic medication, massage, acupuncture, physiotherapy, and a personal trainer — all of which I consider to be justifiable and reasonable — Ms. McDuff’s report calls for the defendant to pay for such items as a “Symphony Side Sleeper Pillow”, a “Shark Steam Pocket Mop” and a “Vileda Bath Magic Mop”. There was little or no evidence to establish why these items were justified. The plaintiff would have been obliged to purchase mops, pillows, dusters and similar sundries absent the accident, and such evidence as was adduced concerning the difference in the value or efficacy of, say, a “Vileda Bath Magic Mop” over some other bath cleaning implement struck me as neither persuasive nor significant.

[27]         Ms. McDuff also provided details of a claim for the cost of future housekeeping assistance. This included the expense, until the plaintiff reaches the age of 75, of the annual cost of canine pedicure services (the plaintiff, I was told a number of times during this trial, now finds it difficult to clip her dog’s toenails), and yard work and home maintenance services. In my respectful assessment, however, the plaintiff is perfectly capable of dealing with all of her household chores. Such pain as she continues to experience may force her to spend more time on daily tasks of this sort, but the award for non-pecuniary damages has taken this loss of amenities into account. It would seem that the plaintiff’s husband is helping out more with the household chores since the accident, but not to an extent that might not legitimately have been expected of him before it. The plaintiff’s household is running satisfactorily, in other words, and there is no justifiable or reasonable basis upon which to order a subsidy or contribution from the defendant.

While a plaintiff is entitled to the care required to maintain or improve their health and the exercise is not one in saving the defendant money, canine pedicures are likely not what Justice Dickson had in mind!

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