The person injured as a result of the negligence of someone else is entitled to claim compensation for the damages suffered, which can be pecuniary or non-pecuniary in nature (see “Pecuniary Damages vs Non-Pecuniary Damages”). The pecuniary damages are those that are monetary in nature, either by way of additional expenses incurred or revenue lost due to the tortious act. It is easy to understand how a victim may incur medical expenses after an accident. Several therapies, treatments, medications and products are not covered by Medicare. Thus, in order to get well, that person may be compelled to buy goods or hire services to treat a condition that did not exist previously. This head of damages is known as costs of care.

In some respects, medical treatments can be seen as overlapping valuable services (see “Claiming A Loss of Valuable Services”). For example, a quadriplegic victim who can no longer perform activities of daily living, like cooking, eating, bathing, grooming, etc., may require assistance with those in order to survive, in addition to other types of household chores like cleaning, shoveling or driving. It may be difficult to differentiate between the types of services although there is no doubt that they all impose additional costs and expenses to the victim of the tortfeasor.

Medical care will generally be provided by health professionals such as doctors, nurses, physiotherapists, etc., but some ‘treatments’ may also be performed by family members like a spouse, parent or child. Although the court did not distinguish between costs of care and valuable services, it stated in Andrews v. Grand Toy (Alberta) Ltd, [1978] 2 SCR 229 p. 243, that “there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis”. See also Wilson (Litigation Guardian) v. Lackie Bros. Ltd (1985), 62 NBR (2d) 236 paras 13-20 (QB). The fine line between treatments and household chores adds a level of complexity to the assessment of an indemnity for costs of care as some tasks may be provided by non-medical personnel (i.e. feeding, cooking, personal care, etc.).

In order to be compensated, the treatment must relate to an injury caused by the actions of the wrongdoer (see “Causation”). He or she will not usually be responsible for a pre-existing condition, except where it is aggravated (see “The Vulnerable Victim: Thin Skull vs Crumbling Skull Cases”; Matthews v. McIntyre, 2020 NBCA 52). Furthermore, not all types of injuries will necessarily be indemnified. For example, some parents were denied compensation for nervous shock following trauma to their child: see Lelarge v. Blakney (1978), 21 NBR (2d) 100 (QB), not discussed at (1978), 23 NBR (2d) 669 (CA); Savoie v. Mallais (1983), 50 NBR (2d) 189 (QB), not discussed at (1984), 59 NBR (2d) 18 (CA). However, 2 other cases awarded damages in relation to the depression caused by the injuries to someone else, although in Gajowiak v. Blakney (1978), 21 NBR (2d) 100 (QB), the plaintiff was himself injured in the accident that killed his wife. In O’Neill v. Campbell (1995), 161 NBR (2e) 1 (QB), the mother was compensated for her depression, anxiety and care provided to the child. The rule of causation is the same whether the court addresses non-pecuniary or pecuniary damages.

Once it is shown that an injury is caused by a negligent act, its treatment will be part of the indemnity. In Andrews, supra, the unanimous bench of the Supreme Court stated that this assessment is performed from the perspective of the victim, not the tortfeasor. Fairness towards the latter is achieved by not compensating injuries/treatments unrelated to the tort; fairness towards the former is achieved by considering what is appropriate to his or her situation. Namely, in that case, the defendant objected to treatments provided in a home-setting, arguing instead that the victim be institutionalized. The point was rejected. The evidence showed that a home environment was more appropriate to this claimant.

A plaintiff does not have complete control over the treatment plan however. Where he or she is not following the advices of his treating professionals and it is shown to have an effect on the intensity of the injury, to delay the recovery or rehabilitation, or to increase the amount of treatments, a court may reduce the award of damages accordingly: see Williamson v. Guitard (1993), 134 NBR (2d) 305 (QB); Mallais v. Comeau (1996), 172 NBR (2d) 1 (QB); Kendall v. Pelger, 2002 NBQB 310; Tapper v. McGaghey Estate, 2005 NBQB 471; O’Neill Jones v. Chabot, 2015 NBQB 143; Despres v. MacDonald Crane Services Ltd, 2016 NBQB 32.

Past Costs of Care

When an award is granted for costs of care covering the period before the trial, it is then known as special damages. To be successful, the plaintiff needs to prove, on a balance of probabilities, 3 criteria similar to those defined in Furlotte v. Elward, 2011 NBCA 95 para 16, in relation to valuable services. Namely, proof is required that (1) the treatment is related to an injury caused by the accident, (2) but for the accident, the treatment would not have been received, and (3) the costs of the treatment claimed (see also “Proof of Past Events vs Future Contingencies”).

As long as they are related to a medical condition caused by the tortfeasor, treatments will include medical consultations, medication, physiotherapy, massage therapy, psychotherapy, etc. Compensation may extend to problems caused by treatments rendered necessary by the accident: Melanson v. LeBlanc (1988), 93 NBR (2d) 403 (QB); Nagle v. Thomas, 2009 NBQB 66. In Matthews, supra, the trial judge even considered the high-interest loans contracted by the plaintiff in order to pay for her medication once her other health coverages were exhausted or terminated because of the accident. Although the full costs of the loans were not reimbursed, they were factored into the amount of interest ordered on the special damages pursuant to s. 45 of the Judicature Act, RNSB 1973, J-2.

Costs of Future Care

On the other hand, a claim for future costs of care will be successful when there is a real and substantial possibility that such cost will be incurred in the years following the trial: Wallace, supra paras 32-43; Cormier, supra. Where the 3-part test for costs of care is met, on a balance of probabilities, to justify an award for the past, and the evidence shows the likelihood of the condition to continue in the foreseeable future, it will usually be easy to establish the that loss. The main issue thereafter will be to determine at what age the care should end to account for the natural aging process when the plaintiff would have normally contracted for them: see Wallace, supra para 42. The various items compensated for costs of future care are the same as for the past.

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.