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ASSESSMENT OF DAMAGES - Deductions - Bars - Duplicative claims - Set-off

Friday, March 09, 2018 @ 8:36 AM  

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Appeal by Diwell and AMS, and cross-appeal by Warick, from the award for future care costs in her personal injury action. Warick was involved in a 2009 motor vehicle accident, in which her husband and two friends died. Warick, 52 at the time of the accident, sustained spinal cord injuries that rendered her a paraplegic. She required six surgeries and suffered ongoing problems with pain. Her children came to live with her after she was released from hospital. One daughter restructured her post-secondary education to assist Warick. She also received no-costs assistance from Alberta Health for 17 hours per week. The trial judge believed this did not approach what a person of ample means would find reasonable, and found that Warick required 13 hours of care per day. He assessed the daughter’s overall contribution to be 12 hours per week, discounted the care provided by Alberta Health by 25 per cent based on its inferior quality to private care, and set these figures off against each other. He also accepted that the daughter’s care would at some point cease, while Warick’s needs would increase to 24 hours per day by the time Warick was 74. The resulting total award was $3,135,902.

HELD: Appeal and cross-appeal dismissed. While there may have been more economical ways to provide for Warick’s needs, the judge gave due consideration to the overall fairness and reasonableness of the total award. The judge did not confound medical needs with amenities. The award did not represent a duplication of home care services. There was no need for a contingency adjustment to the future care costs award where it was clear that Warick would need services and where the judge had already applied a substantial deduction to reflect the fact that more services were likely to be provided by Alberta Health as Warick aged. In determining that Warick needed six hours of care during the night, the judge gave due consideration to her ability to reposition and catheterize herself and the likelihood that her ability would decline over time and that catheterization by a care giver during the night was preferable to avoid problems with her bladder. There was no error in the judge’s determination that Warick’s entitlement to public assistance would increase in future, as her needs increased. It was appropriate to prevent double recovery where costs would be publicly funded.

Warick v. Diwell, [2018] B.C.J. No. 214, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., L. Fenlon and B. Fisher JJ.A., February 13, 2018. Digest No. TLD-Mar52018010