BCCA Brings FCC claims back to Earth

April 15, 2011

The Court of Appeal for British Columbia recently released an interesting decision significantly reducing a trial judge’s award for future care costs. This decision could have an impact on similar claims in Ontario.

The Plaintiff was injured in a 2005 collision. Most of his injuries resolved but he was left with long-term difficulties as a result of a knee injury. He was successful at trial on a number of claims.

With respect to costs of future care, the trial judge reviewed a report prepared by an occupational therapist, which identified the cost and “replacement frequency” of a number of items said to be required by the plaintiff to cope with his injuries. The trial judge reviewed these items to determine whether they were warranted given the plaintiff’s present condition, and then applied the 20% contingency “in view of the real and substantial possibility that Mr. Penner’s condition will improve as a result of the recommended treatments”

The trial judge allowed the following items:

Future home maintenance$14,600.00
Yard maintenance$39,200.00
Housekeeping assistance$38,000.00
Cold packs, heating pads and bath mats$1,825.00
Safety bars in the bathroom$200.00
Psychotherapy treatments$3,000.00
Attendance at a fitness centre or community centre$13,500.00
Medication$10,000
 
TOTAL:
____________
$120,325.00

On appeal, the Court reduced the FCC award by roughly $80K. Of note (and this is what Ontario insurers will appreciate), the Court reminded litigants not to go overboard with FCC claims:

[13] …..in Travis v. Kwon, 2009 BCSC 63, … Johnston J. said this about claims for damages for future care costs:

[109] Claims for damages for cost of future care have grown exponentially following the decisions of the Supreme Court of Canada in the trilogy of decisions usually cited under Andrews v. Grand & Toy, Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

[110] While such claims are no longer confined to catastrophic injury cases, it is useful from time to time to remind oneself that damages for future care grew out of catastrophic injuries and were intended to ensure, so far as possible, that a catastrophically injured plaintiff could live as complete and independent a life as was reasonably attainable through an award of damages.

[111] This is worth mentioning because the passage of time has led to claims for items such as, in this case, the present value of the future cost of a long-handed duster, long-handed scrubber, and replacement heads for the scrubber, in cases where injuries are nowhere near catastrophic in nature or result. This is a reminder that a little common sense should inform claims under this head, however much they may be recommended by experts in the field.

[14] In the case at bar, I agree with the appellant that the awards made by the trial judge were unjustified or unreasonable to some extent. I would not make any award for yard maintenance, housekeeping assistance or for a gym membership since it is unlikely on the evidence the plaintiff would employ outside assistance for these tasks. Nor would I make any award for cold packs, heating pads, bath mats or safety bars, as I expect these are part of most households in any event.

[15] For household maintenance, in my view some award in respect of power washing and doing gutters and windows would be justified. I would not interfere with the $1,120 per year figure, reduced by 20%, but I would calculate the present value only to age 70. I doubt very much that a 70-year-old man would not be getting outside help, even if he were perfectly fit. Counsel will have to do that calculation.

The case is called: Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135 (CanLII)

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