Case Citation: Roy-Noel v Buckle, 2024 BCSC 752

From Cannabis to Psilocybin, once again demonstrating the Court’s evolving perspectives on treatments using restricted substances, the BCSC’s recent decision in Roy-Noel v Buckle, 2024 BCSC 752 sets precedent for future cost of care awards including Psilocybin treatment (mushrooms). This decision also emphasizes the crucial role of expert opinions at trial, the effective use of cross examination, and the need for objective evidence.

Background 

The Plaintiff, aged 39 at the time, was rear-ended while exiting her parked vehicle in May 2018, leading to a mild traumatic brain injury and chronic conditions, including severe pain, migraines, PTSD, and somatic symptom disorder. The Plaintiff saw the truck her in rearview mirror just moments before the collision. Instinctively, she dove towards the passenger seat to shield her grandmother, bearing the brunt of the impact with severe consequences to her head. 

Six experts were called by the Plaintiff and five by ICBC, to opine on the Plaintiff’s condition from the perspective of pain and anesthesiology, neuro-ophthalmology, otolaryngology, vocational occupational therapy, psychiatry, and psychedelic-assisted therapy. 

The Plaintiff provided evidence in support of the use of psilocybin as a way to alleviate her psychological symptoms, specifically suicidal ideations. She testified that she had been taking daily doses of a psilocybin product, through a private, presumably unauthorised, supplier.  Relying on the expert opinion by Dr. Kryskow, a family physician with experience in successfully treating patients with psilocybin and related products, the Plaintiff sought $41,363 as the present value of psilocybin-based treatments and therapy for her lifespan. The Plaintiff also provided an undertaking to the Court through her counsel that if she is awarded this head of damage, she would only obtain psilocybin using those funds through the legal and prescribed means described by Dr. Kryskow, through a physician. 

Decision

The Plaintiff was awarded $1,428,637 including $367,916 for cost of future care and additional amounts to be paid by ICBC on an ongoing basis when presented with written confirmation from a physician of their prescriptions for the psilocybin treatment obtained pursuant to Health Canada authorization and official documentation of all other federal requirements. The Court was compelled by the evidence of the Plaintiff and Dr. Kryskow when ruling such treatment was a reasonably necessary expense and appropriately the subject of a cost of future care award. 

The Court found the Plaintiff's experts more credible due to their thorough evaluations and direct examinations. Most of ICBC’s expert witnesses provided only responsive reports, without having directly examined or interviewed the Plaintiff resulting in the Court’s decision that such opinions were of limited assistance and were accorded limited weight. 

Key Takeaway 

The evidence of medical professionals, testimony of the benefits of restricted substances, and assurances that a Plaintiff will comply with Health Canada regulations or obtain such products through a physician are all key factors a Court may consider in making awards under cost of future care, even for prohibited substances. 

In cases involving significant reliance on the Plaintiff’s self-reports of pain and related symptoms, the need for independent objective evidence is greater. To effectively challenge the opinions by Plaintiff’s experts in such personal injury actions, the defence should seriously consider independent defence medical assessments rather than responsive reports based only on a review of records. In a claim such as this one, seeking a significant sum of $1.9 million, testimony or video evidence undermining the evidence of the Plaintiff and her expert witnesses as to her limitations would have benefited the court and would have been proportionate.