By Daniel F. Corrin and Edward P. Good

This paper offers a survey of commonly occurring issues in the presentation of damages in spinal cord injury cases. The specific issues will vary by virtue of individual circumstances, but there are many commonalities. Given the indisputable nature of a spinal cord injury, and the relative infrequency of occurrence, there are a limited number of quantum trial judgments. In preparing an SCI damages claim, cases involving other catastrophic injuries should also be considered.

Damages – The Challenge

The most serious challenge facing the Court when adjudicating an SCI claim, given the principle of fair and reasonable compensation, is the determination of the appropriate care regime and its costs, including the number of hours for caregivers and other supports, the rates paid, necessary physical supports and their replacement and whether there is to be any reduction in life expectancy caused by the injury itself.

General Legal Principles in Catastrophic Cases

The applicable principles set out in the “Trilogy” of Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R.(3d) 452 (S.C.C.), Arnold et. al. v. Teno et. al. (1978), 83 D.L.R. (3d) 609 (S.C.C.), and Thornton et. al. v. Board of School Trustees of School District No. 57 (Prince George) et. al. (1978), 83 D.L.R. (3d) 480 (S.C.C.), provide a summary of law regarding the assessment of damages in cases of catastrophic injury. The emphasis is on compensation for provable pecuniary losses in the realms of care and income loss.
Author Ken Cooper-Stephenson, (Personal Injury Damages in Canada: Carswell, 1996), provides a succinct summary of the principle:

The award of full and appropriate compensatory damages to cover the cost of future care is of paramount importance in the most serious cases. As Spence J. stated in Arnold v. Teno. ‘It should be stressed that in such a case as the present’ 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.’ The standard of care to which a plaintiff is entitled is therefore extremely high.

The decision by Mr. Justice Chamberlist in Dennis v. Gairdner [2002] B.C.J. No. 2017 (S.C.), summarizes (para 61) the decision of Madam Justice McLachlin (as she then was) in Milina v. Bartsch (1985) 49 B.C.L.R. (2d) 33, B.C.J. No. 2762 (S.C.) [ s33 page 78] affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.) and described and affirmed nine specific principles applicable to awarding damages in cases of catastrophic injury. Briefly, these are:: (1) principle of restitution in integrum, (2) damages are for functional loss to provide substitute pleasures (3) the primary emphasis – care (4) award for loss of earning capacity, using statistics if necessary (5) inflation to be considered (6) allowance for contingencies – usually a deduction (7) (subsequently over-ruled) (8) deductions for duplication (9) non-pecuniary cap.

The decision in Townsend v. Kroppmanns (2003), S.C.J. No. 73, (per Deschamps, J.) adds an important gloss respecting the purpose of the award. At para. 18, the Court provides three further principles: (1) damages are assessed and not calculated (2) finality: awards are a one time lump sum of damages (3) the plaintiff has property over the award.

In other words, the award is owned by the plaintiff, so after assessment it should be the plaintiff who decides how to allocate the award. The ownership factor may have implications in any argument for court awarded periodic payments.

Non-Pecuniary Damages

The Supreme Court of Canada in the Trilogy capped non-pecuniary damages at $100,000 as of January 1978, plus a Cost of Living Allowance. Plaintiffs in catastrophic injury cases are generally entitled to the capped maximum of non-pecuniary damages. Accounting for inflation, the cap is approximately $300,000 in today’s dollars.

Other than recognizing that there is no amount of money that would make good on the loss, there is no rational way to explain the Trilogy’s pain and suffering limitation to an client who has sustained paraplegia or quadriplegia. Counsel are left to rely on “It’s the Law” to explain such inadequate compensation.

In Unruh v. Webber (1992) 98 D.L.R. (4th) 294 the defence conceded that the plaintiff was entitled to the Trilogy maximum. But do not take for granted that every spinal cord injury will result in an award of the upper limit. For instance, in Arce (Guardian ad litem of) v. Simon Fraser Health Region [2003] B.C.J. No. 1516, the plaintiff was 79 years old at injury and general damages were assessed at $200,000.

Care Costs

In SCI cases, care is usually the paramount issue for both the client and the court. The test for entitlement was summarized recently in Mitchell v. We Care et al [2004] B.C.J. No. 1400; B.C.S.C. No. 902 (S.C.). In that decision, Mr. Justice Kelleher was presented with a comprehensive list of British Columbia authorities regarding the approach to the provision of care in SCI cases. His concise summary of the current law regarding cost of care and special damages makes clear that the test is not “medical necessity”. The court states:

33 … The plaintiff & quot;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& quot;: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78, aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

34 A court should award special damages if the expense incurred was reasonably necessary. In Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.), the defendants argued that the test for determining whether the cost of care was appropriate was & quot;medical necessity& quot;. Mr. Justice Harvey pointed out that this standard was rejected in Zapf v. Muckalt (1996), 26 B.C.L.R. (3d) 201 (C.A.) as being too stringent. The Court of Appeal preferred a reasonableness test. The court in Zapf made its comments in the context of housing costs but Mr. Justice Harvey concluded that this approach should be applicable to other components of care as well. After having reviewed Milina and Mann v. MacCaig-Ross, [1998] B.C.J. No. 592 (S.C.), Mr. Justice Harvey formulated the test for special damages in this way at para. 91:

[I]t is what a reasonably minded person of ample means would be prepared to incur as an expense; and cannot in the remotest sense be considered a squandering of money; and for which there is a medical basis.
I respectfully agree.

The current law respecting the assessment of damages in catastrophic cases derives from the Trilogy. In addition, Milina has received approval in numerous following decisions. See for example Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.) wherein Madam Justice Saunders states:

… 101 I am guided, as was Madam Justice Levine in Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 at 99 (S.C.), by the test described by Madam Justice McLachlin in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at p.84:

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.

The pre-eminent principle is provision of funds for anticipated expenses which will facilitate the Plaintiff’s health, both physical and mental. In Dennis v. Gairdner, Mr. Justice Chamberlist stated the following in respect of future care:

96 Just as medical necessity is not the criteria for what future medical care is required, neither should the court look at minimal or lowest standard care that is available. The concept is rather one of adequate or reasonable compensation. In my view, what should be looked at in the case at bar is an award of compensation that will provide Mr. Dennis with a high standard of future care which will give him maximum life expectancy.

The test of “whether a reasonably-minded person of ample means would be ready to incur the expense” has been accepted on numerous occasions in British Columbia. See for example: Bystedt (Guardian ad litem of) v. Hay, [2001] B.C.J. No. 2769; Dennis v. Gairdner; Arce (Guardian ad litem of) v. Simon Fraser Health Region; Claiter v. Rose [2004] B.C.J. No. 56; and Mitchell v. We Care.

Incurred Expenses vs. Future Care Costs

Plaintiffs sustaining a spinal cord injury invariably require significant lifetime levels of personal, medical and rehabilitative care. Given the lag between injury and resolution of claims, there will also be a significant component for past care or special damages.

To mitigate loss, a plaintiff must expend funds and efforts where possible to provide for care. In spinal cord injury cases a care regime will likely be implemented upon discharge from hospital. This regime will probably be modified as capabilities, needs and efficiencies are discerned in the community. At the time of trial, the plaintiff may have utilized a number of regimes with varying levels of rehabilitative supports. The level of care received up to the date of resolution of the claim may not necessarily equal the level sought as future care costs. The same will be true of other expenses. The test for past care is not the same as for future care. Evaluation of past care decisions does not require optimum utilization or perfection. The test for mitigation is a broad one of reasonableness.

At page 166 of Personal Injury Damages in Canada, Cooper-Stephenson states:

The allowability of an expense is not measured by its ultimate effectiveness, but by the reasonableness of the decision in incurring it, given the surrounding circumstances. As was stated by the House of Lords in Clippens Oil Co. v. Edinburgh & District Water Trustees”, the wrongdoer is not entitled to criticize the course honestly taken by the injured person on the advice of his experts even though it should appear by the light of after events that another course might have saved loss.

Given the numerous pre-trial expenses undertaken as part of rehabilitative process, the reasonableness principle is important to apply in SCI cases. Unfortunately, where the plaintiff borrows funds to pay for care, it is very likely that the rates for borrowing will far exceed the limited recovery allowed pursuant to the Court Ordered Interest Act, R.S.B.C. 1996 c.79.

The proof of special damages incurred is strong evidence in support of future needs. However, given the cost of borrowing and the risks of litigation, an SCI claimant may need to rely on gratuitous care. That lack of direct expenditure will increase the practical risk that a court may assume that such “free” care will continue.
Theoretically it should not matter whether the SCI victim has incurred the expenses in order to allow recovery of future care costs. For example, where a high level quadriplegic needs supervision at night, that care may be provided by family or through other volunteer services. Expert reports can set out the necessity for the care and the cost of provision by professionals. The legal basis for the claim is that the defendant ought not to benefit from the provision of gratuitous but necessary care, regardless of who provides it. A claim for provision of services which have not been paid for directly by the SCI plaintiff pre-trial, can be subject to subrogation, ‘means testing’ or other circumstances in which the award can be clawed back or lost to the plaintiff.

If an SCI survivor is stuck in an extended care ward for lack of funds awaiting resolution of their claim, experience and practicality suggest a poor damages outcome. Theoretical care is always provided smoothly, but reports which envision a hypothetical care regime will invariably miss some components of the necessary care. Plaintiff and defence reports will predict significantly different needs. In the absence of experience with the levels of care being sought, the plaintiff will not be able to convincingly present his or her present needs and projections for future care.

In Trust Claims

” In Trust” claims are a recognized head of damages to compensate for services required, but supplied from an unpaid source, usually family. In accepting the ‘in trust’ claim as valid, the SCC relied upon earlier English authorities (see Arnold v. Teno). A defendant may not avoid its financial obligations because a family member has provided care beyond the norm expected of them.
In Brennan v. Singh, the plaintiff had substantial care needs. Harvey J., summarized the factors to consider in assessing in trust claims:

95 In my view, it is useful to review briefly the factors which are considered in the assessment of such claims. They are:

(a) where the services replace services necessary for the care of the plaintiff;
(b) if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship?
(c) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship;
(d) it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services.

Brennan v. Singh, supports the proposition that personal care provided by family members is beyond the norm and is compensable. If there is a trend toward the provision of these awards, though, it is not a generous one. Varied approaches to in trust claims can be found in Brito (Guardian as litem of) v. Woolley, [2001] B.C.J. No. 1692 (S.C.), and Jacobsen v. Nike Canada Ltd (1996), 133 DLR (4th) 377 (S.C.) and Terracciano v. Etheridge.

Home vs. Institution

One important issue in SCI cases is where the care is to be provided: at home or in an institution. In Andrews v. Grand & Toy Alberta Ltd., supra, the court stated:

The basic argument, indeed the only argument, against home care is that the social cost is too high . . . I do not think the area of future care is one in which the argument of the social burden of the expense should be controlling, particularly in a case like the present, where the consequences of it would be to fail in large measure to compensate the victim for his loss. Greater weight might be given to this consideration where the choice with respect to future care is not so stark as between home care and an auxiliary hospital. Minimizing the social burden of expense may be a factor influencing a choice between acceptable alternatives. It should never compel the choice of the unacceptable.

Despite this statement there have been cases where the courts have found that care within an institution is the appropriate choice ( see Arce v. Simon Fraser Health Region).

The cost of adapting a home is a valid portion of the claim for damages. In the Trilogy, Thornton was awarded the cost of a house. In most following decisions (see Milina v. Bartsch, para 209), the plaintiff has been awarded the cost of modifying a house. Where a plaintiff is young, or for other reasons does not have a permanent residence to modify, care must be taken to ensure adequate funds for future modifications.
There are a number of other recent SCI and brain injury cases which look at this key issue.

Specific SCI Needs

Most of the decided SCI cases canvas a significant list of care needs for the specific individual. While no two individuals have precisely the same needs, a review of the specific awards may assist in the development of items for consideration. In particular see the following decisions: Dennis v. Gairdner (see schedule “A”); Brennan v. Singh; Brito v. Woolley.

The “Total Lifestyle Approach”

In cases of catastrophic injury with significant care costs, there are two accepted methods of assessing damages which arise from the Trilogy: the “Total Lifestyle Approach” and the “Incremental” approach. By default the incremental approach is the standard approach utilized in damages assessments. The plaintiff receives funds for additional expenses that would not have been incurred but for the injury. In general, a plaintiff will seek to use the ‘total lifestyle’ approach where the total loss of earning capacity award would not enable the plaintiff to provide for basic living costs. The courts will use the & quot;total lifestyle& quot; approach when the plaintiff’s future life has been ‘radically changed’ and it is artificial to speak of & quot;additional& quot; costs given the complexity of care.
In theory, the total lifestyle approach is easily understood. In practice, it is often difficult to quantify. The total lifestyle approach was explained in Mitchell v. We Care, but was not adopted:

87 The total lifestyle approach is sometimes necessary to avoid double compensation, which would be contrary to the principle of restitutio in integrum. Madam Justice McLachlin addressed this problem in the trial decision in Milina as follows at 80:

It is established that overlap, or double compensation, must be avoided. The question is whether the court should proceed by first assessing the total cost of future care, including basic living expenses which the plaintiff would have incurred had he not been injured, and make a deduction from the award for loss of future earnings to reflect the fact that a portion of those earnings would have been spent on items included in the award for cost of care had the plaintiff not been injured; or whether, on the other hand, the court should proceed by awarding under the head of cost of future care only those expenses which the plaintiff establishes he will incur over and above what he would have spent for living had he not been injured.

The “total lifestyle” approach was also considered in Morrison v. Cormier Vegetation Control [1988] B.C.J. No. 3279, (S.C.) where it was adopted by Madam Justice Boyd.:

(vi) Total Lifestyle Approach:

111 Further, Mr. Webster has submitted that in a case in which catastrophic injuries have been suffered and in which the plaintiff’s entire future life has been radically changed because of her injury, it is appropriate for the Court to adopt the & quot;total lifestyle& quot; approach in assessing her damages for cost of future care. According to this method, the injured party is given:

…an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings, i.e., the award is on the basis of net earnings and not gross earnings. (See Andrews v. Grand & Toy Alberta Ltd., at p. 468 (see p. 28 Plaintiff’s Argument).)

112 This is in contrast with the alternative & quot;additional expenses& quot; approach, adopted by the defence, in which the Court deducts the costs of basic necessities when computing the award for future care and then computes the earnings award on the basis of gross earnings.

Life Expectancy

Life expectancy is often a controversial and difficult issue in the assessment of damages following an SCI. The financial consequences are significant. Consider an annual care cost of $250,000. With a life expectancy of 9 years the present value is 1.9 million. With a life expectancy of 33 years the present value of the care is 5.0 million dollars. Such disparity in life expectancy predictions is not uncommon.
The starting point for life expectancy following spinal cord injury is academic study and literature from the United States. Life expectancy estimates for individuals with SCI are based on longer term studies and are generally divided by location of injury (i.e. C1-4; C5-8, etc.) and whether the severance is “complete” or “incomplete”.
In determining life expectancy, experts consider SCI and other risk factors which reduce life expectancy. Some risks are ‘upfront’, some risks are ‘delayed’. For example, consider smokers. The advertisements say “smoking kills” – but actually it won’t for many years. The likelihood of a 22 year old male, smoker since 17, dying of a smoking related illness is very remote. However, if he continues, smoking will have a statistically significant impact on his life expectancy toward the end of his life. The graphing of these considerations influences the multipliers.

Positive influences on life expectancy are less common. However, SCI individuals who survive one year post incident do have an increased life expectancy – the greatest risks for survival occur during the first year. It is difficult to predict societal and medical changes which will influence life expectancy in the future. However, we know that life expectancy in the developed world has increased dramatically in the last century. There are minor variations according to factors such as geography – British Columbian’s enjoy a life expectancy of 0.5 years greater than the average Canadian. Life expectancy considerations are by nature personal and factually driven.

In Terracciano (Guardian ad litem of) v. Etheridge, [1997] B.C.J. 1051 (S.C.), Dr. Anton’s opinion respecting life expectancy was accepted, and the quadriplegic plaintiff’s life expectancy was found to be normal assuming the provision of appropriate supports. In Dennis v. Gairdner, the court states that the approach to life expectancy should be “reasonable and not pessimistic” (para 82) and life expectancy must be considered based upon the provision of optimal medical and social support.

Clearly life expectancy is difficult to predict. In Suveges (Guardian ad litem of) v. Martens, [2003] B.C.S.C. 415, 18 B.C.L.R. (4th) 179 the then 88 year old plaintiff, a ventilator dependant quadriplegic, outlived her short life expectancy, leading to post-trial applications to deal with outstanding issues.

Available Insurance Coverage

One reason SCI judgments are uncommon is the inadequate limits of insurance carried by most individuals. Obviously, counsel must closely consider the prospects of adding all appropriate defendants to extend the limits of coverage.

Average vs. Individual

The constellation of care needs in each SCI case is unique. Each claimant is entitled to what is reasonably necessary for that individual. It is subjective, based on the legal principles and the plaintiff’s unique situation. It is never “average” or “usual”. In Mitchell v. We Care, an argument against the care plan presented by the plaintiff was launched on the basis that it cost significantly more than was necessary for the “average” quadriplegic. This approach was rejected (at para 97) on the basis that the central question is: “What does this plaintiff require?”.

Contingencies

The confluence of catastrophic injury, aging and the social / societal impacts of SCI result in circumstances which leave SCI survivors with unforeseen needs which can be greater than predicted. There has been evidence presented in cases that the costs of medical and quasi-medical services rise at a rate higher than inflation. Cost of care reports are discounted using the 3.5% discount rate, despite the fact that personal care attendant costs are much more equivalent to wage loss (2.5% discount rate).
New procedures and services to assist SCI victims to improve their living conditions will probably become available, but likely at a significant cost. Devices not predicted to break down, will break down or become lost. The process of aging predictably requires individuals to need more assistance in unpredictable ways. In spinal cord cases that could include:

– increase in spasticity.
– pressure sores.
– degenerative changes.
– illness.
– loss of family support.
– training and management needs for the care or rehabilitive team.
– difficulties finding and replacing caregivers.
– provision of food, furniture and other expenses related to the live-in caregiver.
– needs for medically related travel.

A positive contingency of 15% was awarded in Morrison v. Cormier Vegetation, at para 109.
109 In the face of all these & quot;positive& quot; contingencies (i.e., requiring additional care in future), I am unable to confidently point to any contingencies which suggest any lessening of her need for care. I agree with Mr. Webster that the contingencies are likely all in one direction.
A positive contingency of 5% was awarded in Mitchell v. We Care (at para 111) on the same basis.

Tax Gross Up, Management Fees and Financial Management

Most SCI plaintiffs will be entitled to an award for management fees and tax gross up. The tax gross up compensates for the additional tax burden which the plaintiff will face. The management fees will allow the plaintiff to invest the bulk of the funds appropriately to generate the funds needed to pay for ongoing care. Given the complex nature of SCI claims, the plaintiff may also seek an award to provide for the retainer of an accountant to assist with administration of the award.

Where a ‘structured settlement’ is utilized, the plaintiff’s entitlement to tax gross up and management fees is eliminated. A discussion of s.55 of the Insurance (Motor Vehicle) Act is beyond the scope of this paper. One fundamental factor bears consideration. With current interest rates the premium needed to fund the provision of care as awarded or needed may be greater than a court’s calculation of present value. You will need to engage the appropriate expertise to review the possibilities.

Conclusion

Quantum considerations in SCI cases match the injury in magnitude. In approaching these cases the plaintiff’s individual care needs are the core element which influences many of the issues in dispute. A thorough approach to damages from a ‘life long’ perspective is essential.