Basic Principles

The basic principles in assessing future care costs in personal injury insurance claims were enunciated by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] Carswell Alta 214 SCC, at paragraph 25 where Justice Dickson states:

“In theory a claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting the injured party in the position he would have been in had he not sustained the injury. Obviously, a plaintiff who has been gravely and permanently impaired can never be put in the position he would have been in if the tort had not been committed. To this extent, restitutio in integrum is not possible. 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.”

Not an Exercise in How to Save Money

Justice does not require the severely injured car accident victim to just “get by” or “make do” with the cheapest possible care paid by the drunk driver’s or negligent driver’s insurance company. As succinctly put by Justice Morrison in Williams (Guardian Ad Litem of) v. Lowe, [2000] Carswell B.C. 409 (SC) at paragraph 25. In the assessment of the future care of needs of a severely brain injured plaintiff:

“This is not an exercise in how to save money. This is an analysis of how best to compensate the plaintiff for her grievous injuries and her loss of quality of life that occurred through no fault of her own but, rather, because of the negligence of the defendant motor vehicle operator. This is not a discussion of retribution but, rather, one of compensation”. [emphasis added]

Severely Injured Car Accident Victims’ Costs

Following a traumatic brain injury from a motor vehicle accident, the greatest area of loss for the plaintiff victim arises from changes in cognitive, emotional, and behavioural functioning. The assessment of future cost of care should focus on the nature of these deficits and what can be done to replace what has been lost. The defendant auto insurance company will try to minimize the future care costs by arguing that the innocent motorcycle accident or car accident victim should “get by” with less than “full compensation”.

The defendant auto insurance company will try to pass off the responsibility of the drunk driver or speeding driver to provide appropriate future care by suggesting that the personal injury victim can rely on the free support of family members. In the absence of family support, the defendant auto insurance company for the drunk driver or reckless driver will argue that the plaintiff/victim can “make do” with government subsidized programs. While this cheaper approach to future care may benefit the defendant auto insurance company, it is not what the law provides for. In the words of Mr. Justice Dickson of the Supreme Court of Canada in Andrews: “Justice requires something better”.

In Andrews v. Grand & Toy Alberta Ltd. (cited above) the plaintiff severe brain injury victim wanted to live in his home rather than be institutionalized. The Alberta Court of Appeal wrongly looked at the claim from the perspective of the cost to the defendant auto insurance company, rather than what the law should entitle the plaintiff victim to receive as adequate compensation for his injuries. The Alberta Court of Appeal was wrongly concerned that the home care option was too expensive. They suggested that his mother could continue to look after him and that just because the plaintiff victim wanted to remain in his own home, did not mean that the cost was justified. When appealed to the Supreme Court of Canada, Justice Dickson confirmed that the assessment of future care costs is to be undertaken without regard to the involvement of family members. He had this to say about the observations of the Alberta Court of Appeal in Andrews v. Grand & Toy Alberta Ltd. at paragraph 30:

“30 … even if his mother had been able to look after Andrews in her own home, there is now ample authority for saying that dedicated wives or mothers who chose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis …

32 I agree that a plaintiff cannot “conjure up” “every conceivable expense”. I do not think that a request for home care falls under that rubric.

33 Each of the three observations seems to look at the matter solely from the point of view of the respondent’s auto insurance company and the expense to them. An award must be fair to both parties, but the ability of the defendant auto insurance company to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims raised against him are legitimate and justifiable.

With respect to Andrews disinclination to live in an institution, the court commented at par. 36.… the Alberta Court of Appeal then expressed the view that the standard accepted by the trial judge was the equivalent of supplying a private hospital. The term “private hospital” is both pejorative and misleading. This suggests an extravagant standard of care. The standard sought by the appellant innocent victim is simply practical nursing in the home. The amount Andrews the victim is seeking is, without question, very substantial but essentially it means providing two orderlies and a housekeeper. The amount is large because the victim is young and because life is long. He has 45 years ahead. That is a long time”. [emphasis added]

The above comments apply just as forcefully to a personal injury victim who has sustained severe injuries other than traumatic brain injuries. When the trial is over and the experts and the lawyer move on to their next case, will the award for future cost of care be sufficient to purchase the future care necessary to sustain or improve the mental or physical health of the plaintiff/victim in accordance with the principles enunciated by the Supreme Court of Canada? The brain injured plaintiff or severe physically injured plaintiff should not have to “get by” or “make do”. The goal of future care is to restore the innocent victim to the position he would have been in had the accident not occurred, insofar as this can be done with money.