25 Nov Future Care Cost Awards for Aboriginal Plaintiff

In the case of Watkins v. Harder, 2016 BCSC 2078, the Plaintiff was injured when her vehicle was rear-ended by the Defendant’s truck. The Defendant admitted liability for the accident and the Plaintiff was awarded $233,950 in damages. This award included $27,500 to cover the Plaintiff’s future care costs for medications and physiotherapy treatments.

A prominent issue at trial was whether the Defendant was required to compensate the Plaintiff for these future medical costs, or whether she could receive these benefits from the federal government because she was a member of the Haida Nation.

The Defendant argued that due to the Plaintiff’s Aboriginal status, she was entitled to a health benefits program provided by the federal government. The Defendant argued that if he compensated the Plaintiff for her future care costs and then she sought those benefits from the federal government, she would receive an unjustified ‘double recovery’.

A double recovery is where the Plaintiff receives a windfall as a result of getting funds from two different sources to cover the same loss. The Defendant argued that availability of this alternate source of funding to cover medical costs should preclude him having to pay this part of the judgement.

The Plaintiff argued that the deduction of her future care costs from the overall judgement would “force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendant’s admittedly negligent conduct”.

The Court agreed with the Plaintiff and declined to deduct her future care costs from the judgement. The Court noted that it was uncertain whether she would be approved for benefits under the federal scheme, and that there was no guarantee those benefits would continue into the future.

The Court went on to state that the only way the Plaintiff could achieve a double recovery would be if she was awarded damages to cover her future care costs and then made a fraudulent claim to Pharmacare for those same costs. The Court stated that an assumption that she would make a fraudulent claim was not a proper basis for relieving the Defendant of his obligation to compensate her.25

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