Injured people often need equipment and therapies to assist in maximizing their post-injury function.  Losing the ability to walk might cause one to need a wheelchair, for example.  In personal injury lawsuits, the Plaintiff’s lawyer has a duty to try to provide everything the victim is likely to need in the future.  Defense lawyers just want to cut that back.

In one of my cases, a little girl was injured at birth .  This resulted in spastic quadriplegia, and a risk of choking.  Our expert suggested a bed bolster to keep her on her side while she slept, along with a video camera monitor and an audio monitor programmed to recognize the sound of choking.  If the infant began to choke, the computer would set off an alarm and the parents could come.  The whole system would cost about $2,500, off the shelf at any computer store.

The defense expert suggested a piece of steel pipe, to which the child would be strapped, so she could not move at all.  It would cost only about $500.

When the defense expert explained this at trial, I thought the judge would vomit.  We got an order for the bolster and computer.

A recent case had a similar duel of experts.

In Howell v. Machi, 2017 BCSC 1806, the 22-year old Veronica Howell was hit by a pickup truck which went the wrong way on the road, and drove over a painted yellow traffic island.  Ms. Howell was very seriously injured.  She suffered a brain injury, fractured skull, fractured rib, chronic pain, and multiple cognitive deficits.  ICBC admitted Ms. Howell “suffered serious life-altering injuries”.    In order to assess her needs for future care, her lawyer and ICBC each had reports prepared by occupational therapists.

The plaintiff’s OT reported the cost of future care would be about $1,780,000.

Obviously, ICBC did not want to pay that.

ICBC hired Philip Adam Towsley, of Re:Function (formerly, Back In Motion).  In 2015 (the latest ICBC numbers available) ICBC paid Back In Motion $1,180,000.

Mr. Towsley prepared a report which recommended ending most of Ms. Howell’s assistance in three years.  There was no basis to say she would improve.  The judge found that Mr. Towsley  “ignored, almost entirely, [the treating occupational therapist’s] records”; that he “paid little attention to the records and opinions of Ms. Howell’s treating doctors”; and “advocated for ICBC’s position contrary to his responsibility to the court”.  Not content to criticize treating doctors which he was not qualified to, Mr. Towsley went to the extent of suggesting Ms. Howell should not be allowed to have a stove.  He recommended she be limited to a toaster oven, calling a stove “excessive”.

Justice MacNaughton’s disgust with Mr. Towsley is apparent in this passage: “[423]     His recommendation ignored the possibility that Ms. Howell might want to heat things like soup or pasta. His proposal would not have put Ms. Howell in the position she would have been in if she had not been injured in the Accident. Putting her in that position entitles her to have access to a stove.”

Yup.  ICBC hired a guy to testify that a victim of horrible injuries is not entitled to have soup.