By Ian Aikenhead, Q.C.
The test for establishing a claim for cost of future care has been stated as follows:
The test for determining the appropriate award under the head of cost of future care, it may be inferred, is an objective one based on medical evidence.
These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable.
The evidence for an award for cost of future care must establish what is reasonably necessary to preserve the plaintiff’s health. However, it must be recognized that happiness and health are often intertwined. The analysis of what is “medically justified” is not as narrow as “medically necessary”, and it is what is “medically justified” which is the relevant test.
Evidence as to the plaintiff’s life expectancy is important in calculating the amounts to be assessed. Such evidence may come from economists, actuaries, or doctors.
If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities. The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the injuries. Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries.
An award must be fair to both parties but the ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims raised against him are legitimate and justifiable.
The courts are to look into the future and fix damages as best they can, using the evidence as to what is likely to be in the injured person’s best interest and make an award that reflects the reasonable or usual expectations of what the injured person will require.
The cost of future care awards should not include expenses for recreation, entertainment, and vacations, which are properly compensated through the non-pecuniary award.
The standard of proof for establishing the cost of future care is the test of “substantial possibilities” .
The courts have struggled somewhat with how to deal with cost of care items which are reasonably necessary but where the evidence has suggested that it is unlikely that the plaintiff will avail themselves of the expense.