In a surprising personal injury claim decision the British Columbia Court of Appeal has remitting the matter of cost of future care to the judge for a fresh determination. ICBC successfully challenged the awards for massage therapy and physiotherapy; Botox injections to the right shoulder; prescription for Nortriptyline; chiropractic treatment; and seasonal cleaning and gardening assistance (Johal v. Meyede, 2014 BCCA 509).
The claimant was injured in a motor vehicle accident and suffered soft tissue injuries to her neck, right shoulder and right arm, resulting in significant pain and headaches. The the judge’s award for loss of future income capacity of $611,000 was unsuccessfully disputed but the award for cost of future care of $90,000 was set aside.
In remitting the matter to the trial judge for a fresh determination of the future care costs the difficulties posed by these reasons were said by the Court of Appeal to be three-fold:
(1) The judge did not analyze each item of care to determine whether there was an evidentiary link between the caregiver’s assessment of pain or disability and the recommended care;
(2) it is not apparent that the judge had regard for the real and substantial possibility that the expense will be incurred or that he made an allowance for the contingency that the cost may not be incurred. It may be that he accepted Ms. Johal’s submission as to the appropriate negative contingency, but it is not apparent from the reasons; and
(3) the judge did not identify the specific amount awarded for each item claimed. Thus, as the appellants note, there cannot be a proper mandatory deduction pursuant to s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 because one needs to first determine whether the item is a mandatory or discretionary benefit under s. 88 of Part 7 of the Insurance (Vehicle Act) Regulation, B.C. Reg. 447/83.
The insurmountable difficulty in determining the issues of cost of future care was that the road map for the award was not developed in the reasons for judgment. This is often solved by the trial judge asking the lawyers to agree on the appropriate reduction and if not to make further submissions on the matter.
That being said, the much larger award of $611,000 for future income loss was up held on appeal and the cost of future care was send back to the trial judge for a re-determination.
Posted by Vancouver Personal injury Lawyer Mr. Renn A. Holness, B.A. LL.B.