Despite the potential for significantly increased awards, the total lifestyle approach to the assessment of damages remains an underutilized method for quantifying damages for the catastrophically injured impecunious plaintiff.
In the Trilogy, the SCC established the principle that care is paramount in cases of catastrophic injury (Thornton v. Prince George School Board, [1978] 2 S.C.R. 267, Andrews v. Grand & Toy, [1978] 2 S.C.R. 229, and Arnold v. Teno, [1978] 2 S.C.R. 287, stating; the prime purpose of the Court is to assure that the terribly injured plaintiff should be adequately cared for during the rest of her life. (Arnold v. Teno)
The Trilogy endorses two methods for the quantification of damages, the incremental approach and the total lifestyle approach (TL). The TL approach was used in both Andrews and Thornton but is rarely used in personal injury litigation today. The incremental approach quantifies damages by providing the plaintiff with an award for economic losses (past and future earning capacity) plus all the additional care needs. The incremental approach presumes that the plaintiff can pay for basic necessities such as food and housing from the earning capacity award and that any care can be accommodated within the framework of the plaintiffs previous life. A plaintiff with a home and some supports can structure the necessary care within his or her home and have caregivers attend to perform any necessary personal care tasks or provide assistance with the activities of daily living. In certain cases, the home can be modified for accessibility or safety or even add a room for a live-in caregiver.
A severely injured plaintiff who had no home in the first instance cannot really use the incremental approach. Madame Justice Beverely McLachlin described the TL approach as being appropriate where: the plaintiffs entire future life has been radically changed because of his or her injury. In such a case it is artificial to speak of additional costs resulting from the injury. The plaintiff needs a totally different environment and totally different care than he would have required had he or she not been injured.
The application of the TL approach requires the court to award the cost of all the plaintiffs needs, including basic living expenses. This includes the cost of food, clothing, transportation and a home for life. The court then reduces the award for earning capacity, essentially by the percentage that would have been spent on basic necessities. If the plaintiff had no provable lost earning capacity, the future care award cannot be discounted below zero.
In Milina v. Bartsch, [1985] B.C.J. No. 2762, Justice McLachlin, in obiter, stated that in theory this method should achieve the same result as the incremental method. In reality, for impecunious plaintiffs who have difficulty proving future economic loss claims, the TL award can be very significantly higher than the incremental award.
For example, in Morrison v. Cormier Vegetation Control, [1998] B.C.J. No. 3279, the plaintiff was a young, impecunious, single mother with an alleged history of working in the sex trade. Plaintiffs counsel (R.B. Webster, Q.C., of this firm) demonstrated that the TL approach to damages was appropriate to ensure proper care. The plaintiff did not have a stable environment, nor provable wage loss. The award included such things as funds for a townhouse rental, hydro, utilities, long distance phone, food, household expenses, personal funds for incidental expenses, and all the other necessities of life. In reality, this amounted to far more than she would likely ever have been awarded for her economic losses, because they could not be proved.
Despite the utility of the TL approach for catastrophically injured individuals who are impecunious or have no work history or are otherwise unable to prove income loss, the method seems to be scantly used. There are only a handful of B.C. decisions which discuss it. A non-exhaustive review of somewhat recent decisions shows it being used in Coulter v. Ball, 2002 BCSC 1740 and considered in Mitchell v. We Care, 2004 BCSC 902, (writer was counsel). In Mitchell, the TL approach was simply brought to the attention of the court in order to ensure that a minimum standard be provided for the plaintiff. The tendency of the courts to utilize averages and deduct contingencies when considering future economic losses may make it appropriate to utilize the TL approach for some working plaintiffs with a relatively low earnings history. In Mitchell, the argument was that if the future economic loss award fell below a threshold, the methodology should switch to the TL approach and pay for all basic costs, including an accessible home.
In this writers opinion, the TL approach is even more underutilized when one considers the prevalence of catastrophic injury amongst the impecunious. While it is hard to factor out all contingencies, experience and anecdotal evidence supports the common sense proposition that severe injury occurs amongst groups that face greater general risks, and given the prospects for increasing awards, the TL approach should be used much more often.
Daniel Corrin practices personal injury law with R. Brian Webster, Q.C. at Webster & Associates, which focuses its practice on representing brain and spinal cord injury survivors.
This article originally appeared in the December 7, 2007, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
