In the personal injury case of Sharma v. Sagoo (2024 BCCA 319), the claimant appealed the trial judge’s award for various heads of damages, including the cost of future care. The trial judge had awarded $6,600 for future care, a figure that included reduced amounts for treatments such as physiotherapy, massage therapy, custom orthotics, and psychological care. The claimant contested this amount, arguing that the items recommended by his medical experts were medically necessary and should be covered over a longer period.
The Court of Appeal found that while the trial judge recognized the medical justification for the treatments, she erred in significantly reducing the amounts based on the claimant’s history of sporadic treatment. The judge had limited the future care award to a much lower amount, speculating that he would not consistently use the recommended services. The future care award was based on an estimate of five treatments per year for four years, rather than the 30 treatments annually for 15 years that the claimant sought.
In Dornan v. Silva, 2021 BCCA 228, this Court distinguished general contingencies, which apply as a matter of human experience and are likely to be experienced by everyone, and specific contingencies that are unique to a particular plaintiff (at para. 92, citing Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. CA), [1990] O.J. No. 2314 (QL) at paras. 46–47). A pre-existing medical condition may constitute a specific, negative contingency if, on the evidence, there is a real and substantial possibility that the pre-existing condition would detrimentally affect the plaintiff in the future regardless of the defendant’s tortious conduct. If a real and substantial possibility is established, the court must then assess the relative likelihood of that possibility materializing: Dornan at paras. 63–64; Murphy at para. 76.
The judge here justified her application of a 10% negative contingency on this basis:
[79] Based on Mr. Sharma’s pre-existing degenerative disc condition and the factors outlined above, I find there is a real and substantial possibility he would have suffered the losses he claims to some degree, regardless of the Accident. Significant life changes have impacted the plaintiff’s personal and professional life, apart from the Accident. These include the initiation of several new business ventures, growing professional responsibilities, and the births of his children. For these reasons I find it appropriate to apply a negative contingency of 10% to the awards of damages for non-pecuniary losses, and past and future loss of income.
The Court of Appeal noted that the award for cost of future care must reflect what is “reasonably necessary to preserve the plaintiff’s health,” citing well-established legal principles. Although the trial judge was not bound to accept the entire claim as advanced, the court found her decision to significantly reduce the future care costs unsupported by evidence. There was no clear explanation as to why the judge believed the more limited future care schedule would suffice for long-term health needs, especially given the chronic nature of his injuries.
Ultimately, the Court of Appeal substituted the trial court’s award for future care with an increased amount of $55,000, as originally sought by the claimant. The court emphasized that this figure was largely unchallenged by the defendants at trial and that it was necessary to cover the costs of Dr. Sharma’s ongoing medical needs.