Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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- Step 2: Determination of Standard by Which Needs should be Met
- Test of Reasonable Expenditure
- General Notes on Determination of Standard
- Step 3: Project Need and Standard into Future
- Step 4: Deductions and Adjustments
- Objective Test: Assessing What a Reasonable Person Would Do
Cost of CareStep 1: Assessment of NeedNot a legal question Ensure sufficient expertise surrounding π to assess injuries, consequences, prognosis, and build around that an understanding of medical/rehabilitation needs The most important categories of need are: Medical treatment Rehabilitation physiotherapy, pain mgmt, etc. Ongoing daily care attendants Transportation Prosthetics, drug costs Physical arrangements and special equipment wheelchairs, vehicles General living support Step 2: Determination of Standard by Which Needs should be MetMitigationObligation to mitigate when injured – either by seeking alternate employment, or by seeking treatments. Issue: if π doesn’t seek treatments, or stops at some point, is ∆ responsible? But see Andrews: there is no duty to mitigate associated with the standard of compensation – only a duty to be reasonable. There is no duty to accept less than the appropriate amount of compensation that’s not mitigation. Note: Dickson J said it wrong in Andrews: he said there is no duty to mitigate in a personal injury case, but really there is – just not in relation to the standard of care you’re entitled to. There is a general duty to mitigate, which applies to the level of need [Janiak] If there is good evidence that a treatment will resolve the injury, you can’t ignore that option then seek damages instead.
That’s about as detailed as the question gets – not a lot of refining. A π is not entitled to unlimited expenditures just because it’s someone else’s money, but ≠ limited by personal circumstances/impecuniosity. The test is the level of expenditure that a reasonable person with some budget constraint (but a big budget) would spend on themselves. General Notes on Determination of StandardConsideration of Social Cost? Relevant only in choosing between acceptable alternatives Level of care Expectation of ordinary level of family care only Home care fully funded where preferred and appropriate [Andrews, Bystedt], but sometimes institutional care is preferable This will depend on the level/duration of family support, the need for multidisciplinary care, the expected benefits of socialization, etc. [See Krangle]29 Step 3: Project Need and Standard into FutureConsider life expectancy (post-accident) Contingencies re Needs and LevelsRecall, these can be positive and negative on the award amount Frequent mistake: deducting for early death. Avoid double deduction re duration/lifespan [Andrews para 50] Early death is already factored into the actuarial tables used to calculate average lifespan for that condition. Contingencies basically guarantee either over- or under-compensation [Andrews para 51] 20% is the conventional deduction [see e.g. Andrews]. This often results in under-compensation if you’ve really done a detailed analysis of the factors, why would you need an additional deduction for presumed contingencies? Contingencies can be individualized based on evidence Can use contingencies where there is a need to evaluate chances of a future event occurring that would merit additional compensation probabilities and possibilities can be factored into contingency format [see e.g. Schrump v. Koot30; Janiak]31 Courts will factor in a possible future event at the rate of probability it affects damages, but discounted by probability that it won’t happen. So, for something with 25% likelihood, give 25% compensation. Step 4: Deductions and AdjustmentsAvoiding duplication with future earnings [Andrews para 53-55] Collateral benefits [see below] Family care: Presumption against conscription we don’t want to calculate the award so as to force a family to care for the injured party But: voluntary family care (over and above the norm) will be compensated [Bystedt para 164 & 181] in a constructive trist. Tax issues: Ignored in Andrews [para 84-85] The original idea: don’t worry about it can be expensive to figure out tax consequences, and they aren’t likely to be high because of medical costs etc. But now, we think the deduction for health care costs won’t be enough, so the award will be too low. So, a gross-up, per Watkins v. Olafson [1989, SCC] See relation to periodic payments Structured settlements Note: the income from a lump sum damages award is subject to taxation, but the lump sum itself is not (ITA exemption for damages awards) Guardianship and management fees MitigationJaniak is the leading case on this. Most mitigation cases involve a π faced with some possible medical procedures that have some chance but are not guaranteed to solve the problem, and π chooses not to proceed with the treatment. Janiak set out an objective standard of reasonableness:
How unanimous? How good is the medical science backing up the recommended course of treatment? Are doctors/specialists divided on the question? In Janiak, everyone seems to have agreed on a 70% chance of significant (even 100%) improvement Note, this is the chance of success, as opposed to the risks of surgery (2) Risk-benefit analysis The medical treatment itself might be dangerous So, is the promised benefit worth the risk? In Janiak, it was just ordinary surgery, so there were those risks but no additional, and the benefit to be gained and the chance of success were high. But see Bougoin.32
Thin Skull SituationsWhat if π reluctance to undergo treatment stems from a genuine psychological condition/fear of the treatment? Courts have imported the traditional tort thin skull rule into this area, to carve out an exception to the mitigation principle. But it’s still very narrow. General rule: ∆ must take π as found, and if as a result of a pre-existing psychological disability, π is unable or unwilling to pursue a course of treatment, that is an excuse and there will be no obligation to mitigate. Two requirements to bring a π within the exception: (1) Condition must be pre-existing Has to be medically established (2) Condition must be pathological (i.e. an illness) Can’t just call your family in to say you’ve always been afraid of hospitals, e.g. It was noted in class that there may not have been any cases that have come within this exception yet. It’s not clear how religious beliefs would play into this test ≠ illness, so not within the test, but maybe a sub-category test or something like that will be created. Note: if ∆ caused the reluctance, it’s not a thin skull issue, it’s a foreseeability issue. If it’s foreseeable that the tort would cause the lack of mitigation…∆ will be responsible.
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