A sheet saying health care costs with a stethoscope and calculator

Claiming Costs of Care

The person injured as a result of the negligence of someone else is entitled to claim compensation for the damages suffered, which can be pecuniary or non-pecuniary in nature (see “Pecuniary Damages vs Non-Pecuniary Damages”). The pecuniary damages are those that are monetary in nature, either by way of additional expenses incurred or revenue lost due to the tortious act. It is easy to understand how a victim may incur medical expenses after an accident. Several therapies, treatments, medications and products are not covered by Medicare. Thus, in order to get well, that person may be compelled to buy goods or hire services to treat a condition that did not exist previously. This head of damages is known as costs of care.

In some respects, medical treatments can be seen as overlapping valuable services (see “Claiming A Loss of Valuable Services”). For example, a quadriplegic victim who can no longer perform activities of daily living, like cooking, eating, bathing, grooming, etc., may require assistance with those in order to survive, in addition to other types of household chores like cleaning, shoveling or driving. It may be difficult to differentiate between the types of services although there is no doubt that they all impose additional costs and expenses to the victim of the tortfeasor.

Medical care will generally be provided by health professionals such as doctors, nurses, physiotherapists, etc., but some ‘treatments’ may also be performed by family members like a spouse, parent or child. Although the court did not distinguish between costs of care and valuable services, it stated in Andrews v. Grand Toy (Alberta) Ltd, [1978] 2 SCR 229 p. 243, that “there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis”. See also Wilson (Litigation Guardian) v. Lackie Bros. Ltd (1985), 62 NBR (2d) 236 paras 13-20 (QB). The fine line between treatments and household chores adds a level of complexity to the assessment of an indemnity for costs of care as some tasks may be provided by non-medical personnel (i.e. feeding, cooking, personal care, etc.).

In order to be compensated, the treatment must relate to an injury caused by the actions of the wrongdoer (see “Causation”). He or she will not usually be responsible for a pre-existing condition, except where it is aggravated (see “The Vulnerable Victim: Thin Skull vs Crumbling Skull Cases”; Matthews v. McIntyre, 2020 NBCA 52). Furthermore, not all types of injuries will necessarily be indemnified. For example, some parents were denied compensation for nervous shock following trauma to their child: see Lelarge v. Blakney (1978), 21 NBR (2d) 100 (QB), not discussed at (1978), 23 NBR (2d) 669 (CA); Savoie v. Mallais (1983), 50 NBR (2d) 189 (QB), not discussed at (1984), 59 NBR (2d) 18 (CA). However, 2 other cases awarded damages in relation to the depression caused by the injuries to someone else, although in Gajowiak v. Blakney (1978), 21 NBR (2d) 100 (QB), the plaintiff was himself injured in the accident that killed his wife. In O’Neill v. Campbell (1995), 161 NBR (2e) 1 (QB), the mother was compensated for her depression, anxiety and care provided to the child. The rule of causation is the same whether the court addresses non-pecuniary or pecuniary damages.

Once it is shown that an injury is caused by a negligent act, its treatment will be part of the indemnity. In Andrews, supra, the unanimous bench of the Supreme Court stated that this assessment is performed from the perspective of the victim, not the tortfeasor. Fairness towards the latter is achieved by not compensating injuries/treatments unrelated to the tort; fairness towards the former is achieved by considering what is appropriate to his or her situation. Namely, in that case, the defendant objected to treatments provided in a home-setting, arguing instead that the victim be institutionalized. The point was rejected. The evidence showed that a home environment was more appropriate to this claimant.

A plaintiff does not have complete control over the treatment plan however. Where he or she is not following the advices of his treating professionals and it is shown to have an effect on the intensity of the injury, to delay the recovery or rehabilitation, or to increase the amount of treatments, a court may reduce the award of damages accordingly: see Williamson v. Guitard (1993), 134 NBR (2d) 305 (QB); Mallais v. Comeau (1996), 172 NBR (2d) 1 (QB); Kendall v. Pelger, 2002 NBQB 310; Tapper v. McGaghey Estate, 2005 NBQB 471; O’Neill Jones v. Chabot, 2015 NBQB 143; Despres v. MacDonald Crane Services Ltd, 2016 NBQB 32.

Past Costs of Care

An individual who has been injured as a result of someone else’s alleged negligence may file a claim for past cost of care. This claim covers any expenses caused by the injury, including services provided up to and including the date of the settlement. If there is no settlement, the claim will cover up until the first day of trial. These expenses include health care costs, and possibly third-party benefits providers such as Blue Cross.

When a person is catastrophically injured and requires care, family members or third-party frequently step in to provide that care, even if it means quitting their jobs. If this is the case, you may also file for past cost of care in order to receive compensation for your service hours. This claim is typically calculated by multiplying the amount of time spent caring for an injured loved one by the hourly rate of a community service worker.

Costs of Future Care

In serious injury cases, the plaintiff will frequently require ongoing medical or personal attention. If so, they will sue for the Cost of Future Care, which generally covers the expenses required to treat and restore an injured victim to his or her pre-accident position. The court will ask if the expense is “reasonably necessary” to allow their plaintiff to function at or near his or her pre-accident level.

Future Care expenses from an accident due to negligence may also include:

  • Medication;
  • Rehabilitation therapy;
  • Assisted living cost;
  • Modifications to a home or vehicle;
  • Care giver or home maintenance services;
  • Special transportation needs;
  • Health care services.

While a report from a doctor or specialist is not required for every expense, it is usually prudent to have a life care plan or cost of future care report from an expert that summarizes all expected expenses and, where possible, links those expenses to a specific doctor’s recommendation.

Since Future Care expenses must be paid all at once, it is necessary to calculate the amount of money that needs to be invested today to cover these expenses in the future. An actuary or economist is often retained to provide these calculations.