Future Cost of Care
So far on this blog we have provided a brief overview of the heads of damage in a personal injury action and provided a more in-depth overview of loss of income and loss of earning capacity and past cost of care. Another important head of damages is future cost of care.
When a person is injured by negligence, they may have care needs which continue into the future. This may include things such as attendant care; adaptive equipment; expenses for treatment such as physiotherapy, occupational therapy, speech language pathology, massage therapy, or TMJ splint treatment; expenses related to adapted accommodations; medication expenses; educational expenses; and transportation expense, among other things. You may require none, some, or all of these things depending on the extent of your injuries.
An award for future cost of care is intended to provide for what is reasonably necessary to promote the physical and mental health of the injured party. The Supreme Court of Canada has confirmed in Arnold v Teno, 1978 CanLII 2 (SCC), that when dealing with a catastrophically injured plaintiff, the court’s primary objective is to ensure that the injured plaintiff is adequately cared for over the remainder of his or her life.
In determining what to award for future cost of care, the court considers the plaintiff’s actual needs. This is often done with the assistance of experts in areas such as physiotherapy, occupational therapy, neuropsychology, speech language pathology, and life care planning, who have assessed the plaintiff and determined his or her needs.
A plaintiff who requires attendant care is entitled to an award of future cost of care for same even where that plaintiff’s family members plan to care for the plaintiff in the future. In Andrews et al v Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC), a leading case on future cost of care, the Supreme Court of Canada confirmed that the plaintiff is entitled to an award for all care reasonably required and those who choose to look after injured family members are not expected to do so gratuitously. The law recognizes that parents are expected to look after their children, but provides compensation for the care required because of the child’s injuries which is over and above the care a family would typically provide a child.
The objective of the court in assessing future cost of care is to provide for the plaintiff’s reasonable needs for the remainder of the plaintiff’s life. In Thornton v Prince George School District No 57, 1978 CanLII 12 (SCC), the Supreme Court of Canada confirmed that a wide latitude should be given to the definition of reasonable expense, holding that for an expense to be deemed unreasonable:
There should be evidence which would lead any right-thinking person to say: “That would be a squandering of money—no person in his right mind would make any such expenditure.” Alternatively, there should be evidence that proper care can be provided in the appropriate environment at a firm figure, less than that sought to be recovered by the plaintiff.
Ultimately, the valuation of future cost of care is a fact-based determination which will vary depending on the extent of the plaintiff’s injuries. If you believe that you or a love one may have sustained injuries due to negligence and want to learn more, you can contact one of our lawyers here.
By Iman Jomha