Costs for seriously injured should be more than the bare minimum

When an individual is seriously injured, an insurer may seek to reduce their exposure by relying on social welfare programs to handle costs – a practice counsel must resist to ensure an adequate standard of care is met, Toronto critical injury lawyer Patrick Brown writes in Lawyers Weekly.

“When a child or adult suffers a severe traumatic brain injury or spinal cord injury, the costs for care into the future are significant,” the article says.

“Traditionally, the insurer and defence counsel have contested the care costs items on the basis that the specific item being sought is either not needed to the extent asserted, is unreasonable, or the market rates are much lower,” it continues.

Social welfare programs

“On occasion, however, the insurer will go beyond these legitimate arguments and seek to reduce their exposure by relying on social welfare programs. In other words, the life care planner simply asserts in their report that the item should not be allowed because publicly funded social service nets are in place to care for the plaintiff,” writes Brown, partner with McLeish Orlando LLP.

Referring to Andrews v. Grand & Toy Alberta Ltd. [1978] 2 S.C.R. 229, Brown says the Supreme Court held that the purpose of the care costs is meant to improve the mental and physical health of the injured person, not simply sustain it.

“The court in Andrews went on to hold that the assessment of future care costs should not consign the injured person to a minimum standard of living,” he writes. “The obligation is to do more than simply ‘provide.’ Unfortunately, this is exactly what social welfare programs do.”

Funding could cease to exist

There’s also the very real possibility, writes Brown, that the funding for the particular government program will cease to exist or be reduced well after the trial or settlement.

“This is in addition to the constantly changing eligibility requirements that can leave the disabled person on the outside, without any help or recourse,” he says.

“An insurer’s attempt to reduce a disabled person’s standard of living to one that is supported by only marginal levels of uncertain assistance must be resisted by counsel,” Brown writes in Lawyers Weekly. “It is an approach that runs counter to the most basic principles of the law.”