Severe Brain Injured Car Accident Claimant has $2.9 Million Award Reduced by $350,000 on Appeal

The injury claimant was seriously injured in a motor vehicle accident when a tractor-trailer struck and crushed her Volvo inside the Massey Tunnel near Delta, B.C.  She suffered extensive injuries including a severe brain injury(O’Connell v. Yung,2012 BCCA 57). The trial judge awarded more than $2.9 million in this personal injury case and ICBC, as the insurer for the defendant, appealled  the decision.
In reducing the award by $350,000 the Court of Appeal applied an arbitrary 20% discount of the future losses resulting from the car accident injury stating,

[68]         In my opinion, the trial judge erred in principle in applying Kroeker and concluding that future care costs are payable whether or not they may be incurred in the future. As the authorities I have referred to above make plain, the assessment of future care costs entails a consideration of the losses that may reasonably be expected to be required. The legal principle enunciated in Kroeker and considered in McTavish clearly does not translate to future care costs…

[67]         As noted by Madam Justice Huddart in McTavish, at para. 16, the case was concerned with the development of principled restraints on claims for loss of housekeeping capacity. One of the principles approved in Kroeker came from Fobel v. Dean(1991), 83 D.L.R. (4th) 385 at 407, [1991] 6 W.W.R. 408 (Sask.C.A.), in which it was said that it is not necessary for a plaintiff to prove that someone will be employed to do the work in the future to be entitled to an award for loss of housekeeping capacity. As I understand the principle, it is the loss of a capacity – an asset – that is compensated. Accordingly, because the award reflects the loss of a personal capacity, it is not dependent upon whether replacement housekeeping costs are actually incurred. Damages for the cost of future care serve a different purpose from awards for loss of housekeeping capacity. Unlike loss of housekeeping capacity awards, damages for the cost of future care are directly related to the expenses that may reasonably be expected to be required (Krangle at para. 22). Determining the amount of a reasonable cost of future care award entails a unique set of considerations, as Professor Cooper-Stephenson explains at 416: 

It is clear that both the need and the opportunity for the expenditure of moneys is relevant to the assessment. Therefore, if the plaintiff’s medical condition may require care of a less expensive nature—such as institutional care—then the award for future cost of care should reflect that possibility. Equally, it would seem, if the evidence is not conclusive that more expensive care will be available, or that the plaintiff will find such care to be physically and emotionally satisfactory, then the award should reflect those possibilities; the reduced award will then reflect the best estimate of what will be reasonably necessary to provide optimum care. In this sense, the court is bound to look to the actual spending potential of the plaintiff.

 

Posted by personal injury lawyer Mr. Renn A. Holness,  B.A. LL.B.