What are they?
A person who is seriously injured in an accident will often experience long-term difficulties that won’t be addressed without a lawsuit.
After an accident, government programs and/ or Part 7 accident benefits usually cover only basic medical and rehabilitation costs (e.g. after a motor vehicle accident, whether the plaintiff was at fault or not, ICBC usually covers these up to a lifetime limit for that person of $150,000). These programs rely heavily on family members to carry the burden of support, rarely cover alternative treatments, and terminate as soon as the injured person is deemed rehabilitated.
But not only may a person’s difficulties continue after rehabilitation, the ongoing problems may interact with one another. E.g. a brain injury superimposed on orthopaedic injuries can make it very difficult for a person to cope with life’s challenges.
Hence the person brings a future care claim so the court, along with continuing treatments and/or medical supplies, can consider quality of life issues and ask: What will it take to help this person function physically, emotionally, and socially as well as possible for the rest of their life?
It might mean home care vs. institutional care – a key issue with spinal cord injuries – or special training or equipment which will enable a plaintiff to enjoy the same lifestyle they had before the accident. In one case, a plaintiff was awarded special equipment to operate a boat he’d loved using before the accident. In another case, a non-treaty First Nations mother who lived in a rural town without running water or indoor plumbing got running water and a septic tank so she could resume caring for her children. Sometimes ongoing counselling or financial management are needed. And what if the plaintiff gets divorced (an unfortunately frequent consequence of brain injury)? What if they have more children? What if their disability interacts badly with the otherwise normal effects of aging? Major future contingencies must be addressed.
Proof and money
Because a plaintiff’s care needs could continue for another sixty-plus years, future care claims are usually substantial in a serious personal injury claim. An authoritative estimation of monies needed is therefore critical. It’s done in three stages:
Diagnosis, causation, and prognosis – Hospital records, and reports from experts such as orthopaedic surgeons (bone fractures), psychiatrists or psychologists (emotional components), neuropsychologists and speech language pathologists (brain injury), physical medicine and rehabilitation specialists, and employment or vocational consultants, establish 1) what the accident injuries were, 2) what the plaintiff’s current problems are, 3) whether these problems were caused by the accident, and 4) what their future accident-caused problems are likely to be.
Future care report – An experienced occupational therapist (O.T.) reviews the medical records and expert reports, then meets with the plaintiff in their home and work environments and considers all aspects of the plaintiff’s life. The O.T. then details what persons and things (e.g. rehabilitation case managers, home support workers, home equipment, psychological counselling, financial management assistants, transportation) the plaintiff will need to live as normal and fulfilled a life as possible. This report assigns first and future-year dollar figures to each expense.
Economist’s report – This report takes all the above and factors in life expectancies, the ‘discount rate’ of 3.5% the court assumes interest will exceed inflation by, and the way in which contingencies such as divorce or having another child would impact all costs, to arrive at tables and totals representing the lifetime cost of future care under different scenarios. If a lump sum is awarded at trial, the economist also calculates the “gross-up” of the award to cover taxes (the lump isn’t taxed, but any interest or investment income earned on it is).
These reports will be attacked at trial, but they need not be 100% bulletproof. The courts will award future care costs for items where there is a reasonable possibility such items will be required.
Note: Once the plaintiff’s future care needs have been decided by the judge or jury, the plaintiff will apply to have the judge award the income tax gross-up, which can be substantial. Also, where the plaintiff doesn’t have the ability to manage the award, the judge may award investment management fees to help out, and/or decide the award be paid as a periodic payment. If there’s a settlement, a portion of the monies may be structured (put into a tax-free annuity).
What if the plaintiff can prove they require extensive care, but government, volunteer organizations, family, or the plaintiff’s own privately purchased insurance are also ready to help? Does the defendant then benefit by having to pay less?
The general principle is that a plaintiff cannot recover twice for the same loss…unless they bought their own insurance coverage.
It used to be that without clear evidence presented at trial that government assistance will continue after trial, there was no deduction for those funds in the future. There appears to be an unsettling trend in the courts now to assume the government will provide care for the plaintiff, even in the face of evidence to the contrary. This premise needs to be challenged, and the tortfeasor, who caused the plaintiff’s injuries, should be expected to cover the full extent of the plaintiff’s losses.
And the extra care offered by family members? Future care awards look at what it would cost to purchase the home care services in the market place regardless of whether a family member is or will be providing them.
For all these reasons, it’s critical that future care claims be carefully prepared to provide for the well-being of the plaintiff for the rest of their life.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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