The B.C. Supreme Court awarded the girl, now 17, a substantial lump sum payment to maintain the care she will need for the rest of her life
A 17-year-old who suffered a deliberately inflicted brain injury when she was just six weeks old has won the right to a permanent, private caregiving arrangement paid for by the B.C. government.
The ruling did not provide any more details of the injury nor did it say who inflicted it.
Justice David Crerar said the Ministry of Children and Family Development admitted it should have stepped in earlier to protect the infant and admitted liability.
Lawyers for the teen and the province agreed to most aspects of compensation in the case, including non-monetary damages, loss of future earning capacity and continuing care costs such as speech therapy.
The girl has been in foster care since her infancy, but will age out when she turns 19.
The trial was to determine whether she should get a lump-sum payment for her private care, or have the amount of the award deducted based on any governmental assistance she would receives as an adult.
The judge noted the stark difference between the two models in real financial terms. He noted the girl would receive about $2 million from the province in one scenario — though she would retain the right to apply for disability and support payments on top of that — and anywhere from $10 to $13 million in the other case.
The judge also ruled on the appropriate care model for the girl, who will need 24-hour help for the rest of her life.
“The plaintiff has been blessed with dedicated, attentive, and competent foster parents,” said Crerar, noting the foster parents had looked after several children over 32 years and were willing to take on such challenging placements.
Both the ministry and the girl’s lawyer agree the foster mom is a “remarkable caregiver” and that H.D. should continue to live in that arrangement as long as possible. However, the foster mother is 76 and likely won’t be able to manage her care for much longer.
The girl has been provided with some level of independence living on a rural family farm near the Alberta border, including riding her own horses and helping with chores. But the injury has left her with serious intellectual and learning challenges and she operates at a grade school level.
Both sides concede H.D. needs help with simple tasks like getting up, personal hygiene, eating, cooking and cleaning, tends to isolate from social interactions and is anxious around strangers. She is prone to outbursts and “only responds to routine and structure,” said the judge.
“Without care or monitoring, she could easily place herself in dangerous situations and/or be manipulated to engage in activities that are not in her best interest.” She is also “very vulnerable emotionally, financially, and sexually.”
Because of all those challenges, a pediatric care expert said H.D. needs 24-hour supervision for the rest of her life, because even at night she remains vulnerable and needs someone to be available to make sure she’s safe, such as when she has to use the bathroom or in an emergency.
The judge ruled that reliable, compassionate and highly skilled support workers will be needed throughout the day and evening, and that a caregiver will also need to stay overnight with her.
Crerar relied on case law from the U.K. and Australia that said damage awards should not be reduced just because a plaintiff has access to public health care and support services.
Lawyers for the B.C. government had argued against using that precedent because it has never been tested in Canada, but the judge ruled it was an appropriate comparison.
H.D.’s future care could have been co-ordinated and publicly funded through Community Living B.C., a Crown agency that is part of the Ministry of Social Development and Poverty Reduction. But the plaintiff has agreed not to double dip and “expressly renounces” receiving future Community Living B.C. or other such benefits.
The judge noted the future of government care can’t be guaranteed nor can the level of service government provides in the future. Community Living B.C. also has staffing and cost constraints that may worsen as H.D. ages.
H.D. will instead rely on the damages award to pay for private care at her and her caretakers’ discretion.