Despite exaggerated evidence, assessment of damages for future care must be based on evidence: court

The Court of Appeal for British Columbia has ruled that an assessment of damages for future care must be based on evidence presented despite the plaintiff’s exaggerated or unreliable evidence.

In Pang v. Nowakowski, 2021 BCCA 478, Pang was injured in two separate motor vehicle accidents and was awarded non-pecuniary damages, loss of past and future earning capacity, cost of future care and special damages. Pang appealed the cost of future care award on the ground that the award was inordinately low, that it had no proper evidence at trial, or alternatively, that the judge failed to provide sufficient reasons.

The appellate court agreed.

While assessment of damages for future care has an element of prediction or prophecy, the appellate court ruled that such assessment should “reflect a reasonable expectation of what the injured person would require to put them in a position they would have been but for the incident.” It is still an objective assessment on the evidence and must be fair to both parties, said the court.

In this case, the appellate court noted the trial judge’s plight in assessing Pang’s “exaggerated and unreliable” evidence. But the judge was still required to explain the basis of the award, having decided that some items were medically justified and that the amount claimed by Pang “far exceeded” what was reasonable.

While a reassessment of damages is occasionally done, the appellate court ruled that it is not possible in this case since the evidence central to the cost of future care award was seen and heard by the trial judge. As such, the appellate court remitted the cost of future care award to the trial court for reassessment.