Canadian Underwriter

Why future care damages exceed $1.2 million in this auto tort case

August 18, 2021   by Greg Meckbach

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A British Columbia judge has awarded $1.26 million, in future care costs, to a plaintiff who was hit by a car in 2015.

In Pevach v. McGuigan Estate, released Aug. 3, Justice Gordon Funt of the Supreme Court of British Columbia found the estate of a motorist is liable to pay $1.7 million to a pedestrian injured in 2015. About $388,000 of that award is for non-pecuniary damages, or pain and suffering.

The plaintiff is now living in a seniors’ residence.

The accident took place in Vernon at about 5:25 p.m. on Dec. 12, 2015. The pedestrian, 52 at the time, was hit by a Chevrolet Lumina. It was dark and raining. The pedestrian was crossing “at or near an unmarked crosswalk” from the north to the south side of 30th Street. She suffered serious injuries, including a severe traumatic brain injury.

After she was injured, the pedestrian was declared “mentally incompetent.”

Now, the estate of the Lumina driver is being sued, on the pedestrian’s behalf, by The Public Guardian and Trustee. The public guardian is a corporation mandated under B.C. law to protect the legal and financial interests of people needing assistance in decision making.

The driver of the Lumina was examined for discovery in 2018 but died in 2019 from causes not related to the accident.

The executor of the driver’s estate has denied liability. The executor argues that even if the defendant was 100% liable, then the defendant should only have had to pay between $284,000 and $359,000. For its part, the public guardian asked for a total award of $2.568 million, including $2 million for future care.

How much the plaintiff should get towards future care cost was one major disagreement between the B.C. public guardian and the estate’s executor, who argued that the future care award should be $68,000, if the defendant is 100% liable.

Before the accident, the plaintiff had a history of alcohol use, chronic liver disease and Hepatitis C.

After the accident the plaintiff was initially living at a transitional housing facility in Kelowna. In 2020, she was moved to a home that provides residential care for individuals, primarily seniors, who cannot live safely on their own. Many of the home’s residents have dementia or other degenerative cognitive difficulties. She was still living in the care home at the time of the trial, which took place November through December of 2020.

Justice Funt rejected the defence argument that the plaintiff should have been in a long-term care facility prior to the accident (meaning the accident did not really result in needing long-term care).

Before the accident, the plaintiff lived in a one-bedroom apartment in Vernon. At one point, the plaintiff had worked for her sister’s renovation business. Prior to the accident, the plaintiff would visit her mother and her mother’s partner, helping with various chores.

Justice Funt found that prior to the accident, the plaintiff “was living and handling circumstances sufficiently well that a long term care facility would not have been warranted at that time.”

A large part of the future care award – based on evidence from an occupational therapist – was for community support workers for 15 hours a week. These support workers would enable the plaintiff to leave her care home twice a week. The estimated cost is $45 an hour, for 15 hours a week, for the next 21 years, for a grand total of $753,000. Also include in the future care cost is the $14,000 annual cost for the plaintiff to stay in the care home, which works out to $306,000 for 21 years.

On the issue of liability, Justice Funt found that the motorist was “unduly focused” on the view ahead of him while driving. The defendant did not see the plaintiff until seconds before the accident. Justice Funt ruled the defendant would have had a lit view to his right and left.

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