Plaintiff Awarded $2,258,592 For Future Cost of Care

Future cost of care awarded in court

In O’CONNELL (LITIGATION GUARDIAN OF) V. YUNG, 2010 BCSC 1764, the 58 year old plaintiff was severely injured when she was struck by a tractor trailer inside the George Massey Tunnel. Prior to trial, counsel agreed on a past and future wage loss award of $125,000 under each head of damage. The unresolved issues at trial were the amount of damages for pain and suffering, the cost of future care, and whether or not an in trust award was warranted.  The lead counsel in this case was James D. Baker Q.C. of Baker Newby.

The plaintiff’s tragic injuries included closed head injuries to the tissue of the brain, cervical spine fracture, fracture to the right femur and ankle, fracture to the left tibia and fibula, various toe fractures, rib fractures, nasal fracture, sternal fracture, and internal injuries including laceration of the spleen and liver. She required a series of surgeries for the fractures and spent five months in various hospitals recovering and rehabilitating the immediate effects of the injuries.

While in hospital, the plaintiff displayed post-traumatic amnesia and subsequent cognitive changes which caused her to struggle with orientation and problem solving. When Ms. O’Connell returned home she was not the same person. Neuropsychological testing revealed significant changes such as decreased activity and enthusiasm, decreased self-awareness, and poorer organization, reasoning, and memory. An expert concluded Ms. O’Connell’s traumatic brain injury “has had devastating effects on many areas of her cognitive functioning” which were predicted to continue into the foreseeable future. She was left with permanent cognitive impairment and personality change with little insight as to the reality of her situation.

With respect to non-pecuniary damages, the plaintiff sought the rough upper limit of $333,000 whereas the defendant suggested $200,000. The court began with the observation that once it was determined the plaintiff has suffered a “catastrophic injury”, the plaintiff was to be awarded the rough upper limit and the injuries were not to be compared to similar cases. It was determined that although the injuries had a profound effect on the plaintiff’s life, they were not as devastating as the cases in which the rough upper limit had been awarded. These cases involved younger plaintiffs who suffered significant emotional and behavioural problems in addition to permanent cognitive deficits. The court awarded $275,000 under this head of damage.

The next issue was the in trust claim. Fisher J. observed Mr. O’Connell “has since been his wife’s primary caregiver in all aspects. He has been very devoted to her and has taken steps to keep her as active and involved in daily living as he can”. This included assisting and re-teaching the plaintiff all of her basic skills such as walking, cooking, cleaning, bathing, gardening, and dressing. He never left his wife’s side for more than 2 hours at a time.

The plaintiff sought $150,000 based on what it would have cost to purchase these services from a personal support worker. The defendant suggested $50,000. The court observed that an in trust award may be made to a plaintiff in trust for a family member for the additional work they do as a result of the plaintiff’s impaired capacity to care for themselves. The defendant suggested that the household responsibilities were always shared between husband and wife and had simply continued on this way. The court was quick to note that the care provided by Mr. O’Connell went well beyond supervision and guidance and went over and above what would be expected from a marital partner. He had gone from an equal partner to a full-time caregiver. The suggested award of $150,000 was made.

Future care was the final issue. There was some dispute as to the nature of care that would be necessary. The plaintiff presented a “life care plan” which involved medical, rehabilitation, and occupational therapies, rehabilitation support services, personal care services, mobility equipment, housekeeping and home maintenance services, transpiration, and modified living arrangements. The present value of this plan was in the range of $3 million dollars. The defence challenged this amount, but failed to present any expert evidence to the contrary or suggest another figure.

The contested matter was whether Ms. O’Connell would submit to all of the future care recommendations. In the past, she was not able to tolerate the home care and occupational services inside her house, which was one of the reasons why her husband had provided the primary care. The defendant relied on case law where future care awards were disallowed on the basis that the plaintiff had displayed express resistance to the particular treatments contemplated. In this case however, Fisher J. found that “the evidence does not indicate clear and informed resistance to recommended services”. Rather, Ms. O’Connell was distressed by the presence of various unknown people in her house immediately following her discharge. It did not follow that she was unlikely to accept such services in the future and the court did not consider it appropriate to draw an adverse inference as was suggested by the defendant. The award for future cost of care was $2,258,592.