When a child or adult suffers a severe traumatic brain injury or
spinal cord injury, the costs for care into the future are
significant. Failure to adequately address the needs of a severely
disabled client through medical evidence and a solid life care plan
can have a disastrous impact on the case. Since the needs are for a
lifetime, many items equate to high figures.
Traditionally, the insurer and defence counsel have contested
the care costs items on the basis that the specific item being
sought is either not needed to the extent asserted, is
unreasonable, or the market rates are much lower. These legitimate
arguments have controlled unreasonable and exaggerated wish lists
when presented by overzealous life care planners. On occasion,
however, the insurer will go beyond these legitimate arguments and
seek to reduce their exposure by relying on social welfare
programs. In other words, the life care planner simply asserts in
their report that the item should not be allowed because publically
funded social service nets are in place to care for the
This argument is more prevalent when the severely disabled
person does not have access to collateral benefits and must rely on
social safety nets to survive while their case is pending. The
programs include March of Dimes, Ontario Trillium Fund, Community
Care Access Centres, the Residential Rehabilitation Assistance
Program, along with a list of others. This line of attack has been
rejected repeatedly by our courts. Despite the rejection, certain
life care planners still try to reduce claims on this basis.
In the seminal decision of Andrews v. Grand & Toy
Alberta Ltd., the Supreme Court held that the purpose of the
care costs is meant to improve the mental
and physical health of the injured person, not simply sustain it.
The Court in Andrews went onto hold that the assessment of
future care costs should not consign the injured person to a
minimum standard of living. The obligation is to do more than
simply "provide." Unfortunately, this is exactly what
social welfare programs do. The other inherent flaw is the very
real possibility that the funding for the particular government
program will cease to exist or be reduced well after the trial or
settlement. This is in addition to the constantly changing
eligibility requirements that can leave the disabled person on the
outside, without any help or recourse.
There are also troubling implications for a disabled
person's family members. In essence, the reduction of services
provided to them will simply place the shortcomings on the
shoulders of their loved ones. In Marcoccia v. Gill,where
a 20 year old catastrophic Plaintiff was awarded future care costs
based on an assessment that excluded family
support, Justice Moore specifically held that "for the
purposes of assessing future claims, the family must be taken out
of the picture."
Courts have fortunately recognized the problems with reducing
awards due to social programs and have not allowed the costing to
be reduced when the argument is advanced. In Stein v. Sandwich
West, Justice Zuber held that a reduction in the future cost
of care for government funded services should not be permitted due
to "the uncertain expectation of government help". The
Ontario Court of Appeal upheld this finding and adopted the
argument that victims of tortfeasors should not be forced to accept
all publicly funded services, nor should service levels provided by
social programs form the standard for tort compensation. Indeed, as
it was held in MacLean v. Wallace, if one party must bear
the risk of uncertain government funding, it ought to be the
Therefore, an insurer's attempt to reduce a disabled
person's standard of living to one that is supported by only
marginal levels of uncertain assistance must be resisted by
counsel. It is an approach that runs counter to the most basic
principles of the law. A plaintiff ought to be entitled to
compensation for their necessary and reasonable expenses. While
they are certainly not entitled to a life of decadence following an
injury, they need not accept a life that provides, at best, a
minimum standard of living. In addition, life care planners must
ensure that the principles of compensation as determined by
jurisprudence should guide their life care plans. To ignore such
fundamental principles of law may jeopardize their ability to be
qualified as an expert.
Biography: Patrick is a partner at McLeish Orlando LLP
practicing critical injury law. He is the past president of the
Ontario Trial Lawyers Association and the present Chair of the OBA
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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