In Aberdeen v. Zanatta, 2008 BCCA 420 (released earlier this week) the
After trial an appeal was taken from liability and quantum portions of trial judgment.
The trial judge found not to have properly addressed issue of contributory negligence and an appeal regarding contributory negligence was allowed.
The trial judge not shown to have erred in assessment of damages for future care. In considering the damage issue the Court reviewed the principles of damage calculation in a catastrophic case.
The relevant passages of the decision are below:
[40] By far the majority of the trial judge’s reasons dealt with the quantum of damages in this catastrophic case. He began by noting the parties’ disagreement as to the meaning of “full” compensation, as that term was used by the Supreme Court of Canada in Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229. Beginning at para. 87, he described the debate in various older English authorities between the concept of restitutio in integrum as a goal of damage awards for personal injuries, as opposed to the concept of “fair and reasonable” compensation, which considers both the plaintiff’s and the defendants’ perspectives. Although in Andrews the Supreme Court of Canada clarified that “full compensation” is the governing principle, the trial judge here stated that Dickson J.’s judgment still retained “the qualification that compensation must be moderate and fair to both parties.” In the trial judge’s words (at para. 114):
… While stating that there is no duty to mitigate, in the sense of accepting less than a real loss, he [Dickson J.] emphasized that “there is a duty to be reasonable,” and that there cannot be “complete” or “perfect” compensation (at ¶ 26). Later, he clarified that fairness to the defendant was to be achieved by ensuring that the claims against him are “legitimate and justifiable” (at ¶ 33).
[41] Andrews was interpreted by McLachlin J. (then of the Supreme Court of British Columbia) in Milina v. Bartsch (1985) 49 B.C.L.R. (2d) 33, a judgment that has withstood the test of time. It concerned a plaintiff who had suffered paralysis from his neck down with the exception of his diaphragm. McLachlin J. summarized the principles relating to the assessment of damages for future care costs as follows:
1. The fundamental governing precept is restitutio in integrum. The injured person is to be restored to the position he would have been in had the accident not occurred, insofar as this can be done with money. This is the philosophical justification for damages for loss of earning capacity, cost of future care and special damages.
2. For those losses which cannot be made good by money, damages are to be awarded on a functional basis to the end of providing substitute pleasures for those which have been lost. This is the philosophical justification for awarding damages for non-pecuniary loss.
3. The primary emphasis in assessing damages for a serious injury is provision of adequate future care. The award for future care is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. [At 78; emphasis added.]
[42] McLachlin J. then considered two specific questions that affect the assessment of future care costs, namely the proper manner of making the calculation so as to avoid duplication; and second, whether there must be “medical justification” of care costs. On the latter issue, she noted the plaintiff’s argument in the case before her that the award for future care should encompass the costs of items that could be used by the plaintiff “in substitution for the pleasures of life taken from him by his injury.” The defendants on the other hand contended that medical justification must be shown for all components of the award, and that insofar as it serves only as solace by providing “substitute pleasures” it falls under the heading of non-pecuniary loss rather than future care costs. McLachlin J. concluded that the authorities supported the defendant’s position. She quoted in this regard from Andrews and its companion case,
If there was any doubt as to whether the award for cost of future care must be justified on a medical basis, it was dispelled by MacDonald v. Alderson, [1982] 3 W.W.R. 385, leave to appeal to the Supreme Court of Canada refused. In that case it was suggested that the plaintiff, a quadriplegic, should be awarded sufficient funds to purchase and maintain his own house on the non-medical grounds that this would give him a greater sense of " 'autonomy, privacy, financial stability and pride of ownership … and greater opportunities for gardening, owning a pet, and more space for hobbies' ". The Manitoba Court of Appeal rejected this evidence as "subjective theorizing" and reduced the award made at trial. The test for determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence.
These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable. On the latter point, Dickson J. stated in Andrews at p. 586:
| An award must be moderate, and fair to both parties … But, in a case like the present, where both courts have favoured a home environment, "reasonable" means reasonableness in what is to be provided in that home environment. | |
This then must be the basis upon which damages for costs of future care are assessed.
It follows that I must reject the plaintiff's submission that damages for cost of future care should take into account the cost of amenities which serve the sole function of making the plaintiff's life more bearable or enjoyable. The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's health. At the same time, it must be recognized that happiness and health are often intertwined. [At 83-4; emphasis added.]
[43] The trial judge in the case at bar noted that as in Milina, the plaintiff was urging a “functional approach to replacing what has been lost to make full compensation”, while the defendants were urging a “medical justification approach to urge that awards not be made for certain items that the plaintiff is unlikely to use … or that are experimental.” In the trial judge’s view, the principle of full compensation set out in Andrews did not provide a “complete answer” to this problem. In his analysis:
Andrews clarified the law by making clear that “fair and reasonable” compensation should not be used to reduce pecuniary compensation, nor to make the plaintiff make do with care at a level lower than that indicated by the medical evidence simply because that would be cheaper for the defendants. However, Dickson J. made clear in Andrews that the Court had been forced by counsel to choose between 24-hour home care and institutionalization – an unacceptable alternative. He did not address how choices are to be made between acceptable alternatives to make full compensation.
Thus, I think the solution is to consider “full” compensation espoused in Andrews in the context of the more pragmatic and widely-followed test set out in Milina, namely that there should be medical justification for a cost of future care expense, and the expense must be reasonable. In this sense, the inquiry is more directed to the fact-based determination of whether each individual item is medically justified, rather than approaching the question from a purely functional analysis of whether a particular item will make the plaintiff whole again. The difference is in many respects semantic, but the former question maintains the focus on the pecuniary loss aspect of the cost of future care, and helps to prevent the Court from extending the award to fulfill the non-pecuniary goal of providing solace for what has been lost. Even in Andrews, Dickson J. recognized that restitutio in integrum was not possible (at ¶ 25). If the plaintiff fails to demonstrate that a particular future care item is medically justified, the plaintiff in essence has failed to prove his damages, and therefore cannot receive compensation on that ground. That said, the analysis of what is “medically justified” is not as narrow as what is “medically necessary,” and all of the parties agree with this proposition. [At paras. 119-20; emphasis added.]
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