09 Oct Cost of Future Care – Garden Maintenance
At this time of year, people want to be out doing cleanup in their gardens. What would you do if you were injured in a car accident and were no longer able to care for your yard?
In the case of Flore v. Jongkind, 2018 BCSC 721, the Plaintiff injured his neck and back in a motor vehicle accident. Prior to the accident, the Plaintiff and his wife maintained their six acre property themselves. He used a ride-on-lawnmower to cut the grass. He kept the fruit trees and bushes pruned, and he raked leaves. In winter, the two of them would handle any snow removal required from the driveway. Before the accident, the Plaintiff spent his days off work doing maintenance and work on the property.
Before the accident, the Plaintiff and his wife had discussed downsizing from their current home. After the accident, the Plaintiff became even more interested in selling, as his back and neck symptoms make it difficult for him to maintain and look after the house and property.
The consensus of the medical opinion evidence was that although the Plaintiff had back and neck symptoms from time to time before the accident, these symptoms were manageable and resolved fairly quickly. He was able to continue to engage fully in all of his normal activities, including work as a firefighter. The Court found that the Plaintiff’s neck and back injuries resulting from the accident were chronic and permanent.
The Court reviewed the law on the cost of future care and noted that an item of future care had to be medically necessary. The Court felt that even if a cost was being recommended by an expert in the field, a little common sense had to inform the claim. No award was appropriate for costs that the Plaintiff would have incurred if he had not been injured. Moreover, the onus was on the Plaintiff to show that there was a reasonable likelihood that he would use the suggested services.
The Plaintiff asked for and was awarded the cost for one year of property and yard maintenance, and the related “catch up” costs, both of which were justified and reasonable.
However, the Court came to a different conclusion concerning the Plaintiff’s request for over $100,000 in ongoing yard maintenance costs, to age 80. The Plaintiff’s expert estimated the need for an average of 4 hours of yard assistance per week to maintain the Plaintiff’s property, until the Plaintiff was 80. The annual cost of those services was $5,449.00 with taxes. The expert also proposed that an additional hour per week be added every five years, at a cost of $1,362.
The Court agreed there should be some allowance for property and yard maintenance as part of the cost of future care, but the amounts proposed by the Plaintiff went considerably beyond what was reasonable. The Court also felt that by the age 70 or so, the Plaintiff and his wife would have been hiring outside help even if he had not been injured in the accident. In addition, the Court wanted the award to reflect the substantial possibility that the Plaintiff would move from his property into something smaller, with fewer maintenance needs, before he turned 80. Accordingly, the Court ordered what it considered a reasonable award for these items collectively: $50,000.