IN THE SUPREME COURT
OF BRITISH COLUMBIA
Citation: | Harrington v. Sangha, |
| 2011 BCSC 1035 |
Date: 20110802
Docket: M090291
Registry:
Vancouver
Between:
Shelley Lynn
Harrington
Plaintiff
And
Hardip Singh
Sangha, G & R Contracting Ltd., Canadian Western Trust Company, Raoul
Morris Thiels, HMC Services Inc. and Her Majesty the Queen in Right of the
Province of British Columbia
Defendants
And
HMC
Services Inc., ABC Co. Ltd. and Her Majesty the Queen in Right of the Province
of British Columbia as represented by the Ministry of Transportation and
Infrastructure
Third
Parties
Before:
The Honourable Mr. Justice Willcock
Reasons for Judgment
Counsel for the Plaintiff: | G.J. Collette and A.C.R. Parsons |
Counsel for the Defendants Hardip Singh Sangha, G & R | S. Padmanabhan and D.R. Eyford |
Counsel for the Defendant Raoul Morris Thiels: | J.B. Arnesen |
Counsel for the Third Parties HMC Services Inc. and Her | D.C. Hendricks |
Place and Date of Trial: | Vancouver, B.C. February 14-18, |
Place and Date of Judgment: | Vancouver, B.C. August 2, 2011 |
EVIDENCE WITH RESPECT TO LIABILITY
A. Evidence
of Drivers and Witnesses to the Accident
B. Evidence
of the Condition of the Scene
EVIDENCE WITH RESPECT TO DAMAGES
B. Experts
in Physical Medicine and Rehabilitation
C. Experts
in Psychiatry and Psychology
D. Vocational
and Occupational Evidence
G. Evidence
with Respect to the PharmaCare Program..
Deductibility of PharmaCare Benefits
HMC Services Inc. and the Crown
Loss of Future Income Earning
Capacity
b. One-on-one Rehabilitation Assistance
c. Psychological and Psychiatric Counselling
d. Occupational Rehabilitation
j. Leisure and Recreational Therapy
Tax Gross-Up and Management Fee
INTRODUCTION
[1]
At approximately 11:30 a.m. on January 18, 2007, Mr. Hardip Sangha
(Sangha) lost control of a tractor trailer he was driving north on Highway 97
at an S turn in the highway, near Sales Road, about 20 km south of Quesnel.
He felt his vehicle slide across the road as the trailer swung around the
tractor. As this occurred, Mr. Raoul Thiels (Thiels) was approaching the
same location driving a tractor trailer south, toward Williams Lake. When he
saw the Sangha truck sliding sideways across the road into his path of travel,
he felt that there was no option but to intentionally drive his truck off the
west side of the road into a ditch and snowbank. The vehicles missed each other
narrowly. Sanghas truck swung around 180 degrees and ended in the ditch on the
east side of Highway 97 with the tractor facing south. Thiels truck hit the
bank of the ditch on the west side of the road and its trailer then pivoted
across the travelled portion of the highway, blocking the southbound lane
entirely and impinging significantly on the northbound lane.
[2]
Unfortunately, at this moment, the plaintiff Shelley Lynn Harrington (Ms. Harrington)
was approaching the scene from the south, driving toward Quesnel, accompanied
by her daughter, Jessica Driscoll. Thiels trailer swung across the road into
her line of travel and collided with the front of her car, crushing the front
and roof of the vehicle.
[3]
Sangha admits that the accident was caused or contributed to by his negligence.
It is alleged that Sangha was negligent in the manner in which he prepared his
vehicle (by towing an empty pup trailer, rather than placing the pup trailer on
the deck of the vehicle so as to increase its traction) or by driving in such a
manner, or at such speed, as to cause him to lose control of his vehicle. Counsel
for Sangha has conceded that Sangha was negligent in driving too fast for the prevailing
road conditions.
[4]
G & R Contracting Ltd. and Canadian Western Trust Company are named
as owners of the Sangha vehicle. They acknowledge their vicarious liability for
Sanghas negligence.
[5]
The plaintiff herself leads no evidence of the negligence of the other
defendants but relies upon the allegations made by Sangha. He says the accident
was contributed to by the negligence of Thiels in failing to drive with due
care and attention, or the negligence of the defendants HMC Services Inc.
(HMC), the limited company responsible for maintenance of the road at the
location of the accident or Her Majesty the Queen in Right of the Province of
British Columbia, the party with the statutory obligation to maintain the
highway.
[6]
Further, Sangha alleges that the plaintiff was contributory negligent in
driving too fast and failing to ensure that she could control her vehicle.
[7]
For reasons set out below, I find Sangha to be solely at fault. The
allegation that the plaintiff was contributorily negligent is dismissed. The
plaintiffs claim against Thiels, HMC and Her Majesty the Queen are dismissed.
The third party claims for contribution or indemnity are also dismissed.
EVIDENCE WITH RESPECT TO LIABILITY
A. Evidence of Drivers and Witnesses to the
Accident
[8]
On January 17, 2007, Ms. Harrington travelled from Quesnel to
Williams Lake with her daughter Jessica Driscoll to visit Ms. Harringtons
partner, Gerald MacBurney. On the following morning as they drove north on Highway
97, returning to Quesnel, fine snow was falling steadily. The travelled portion
of the road was clear but there was some accumulation of snow on the centre and
the shoulders of the highway. The road had the appearance of having been
cleared but Ms. Harrington has no recollection of seeing any road
maintenance vehicles. At some point after leaving Williams Lake, Ms. Harrington
recalls being passed by two semi-trailer trucks pulling pup trailers; she
thought they were travelling fast. She believes that she was driving at about
80 to 90 km/hour through most of the trip from Williams Lake to the scene of
the accident. She has no recollection of the accident. Her last memory is of
passing the Alamo restaurant about 30 kilometres south of Quesnel and 90 kilometres
north of Williams Lake.
[9]
Jessica Driscoll recalls that as they drove north the roads were bare
with just a little bit of snow in the middle and on either side of the road.
She recalls following a tractor trailer for a period of time but does not
recall the passing incident referred to by her mother. She was not paying close
attention to her mothers driving. She does have some recollection of the
accident. After seeing a puff of snow ahead of her on the road she saw a
vehicle in the ditch beside the northbound lane, facing her. At the same time,
another vehicle coming toward them went into the ditch beside the southbound
lane and its trailer swung onto the road toward them. She remembers thinking
that there was nothing that could be done to avoid the collision that followed.
[10]
John Koster was driving north on Highway 97 at about the time the
accident occurred. He has a recollection of a Peterbilt tractor owned by G
& R Contracting Ltd following him as he approached the S curve on the
highway to the south of Quesnel. He felt that the vehicle was tailgating him
although he was driving at what he believed to be the posted speed limit of 100
km/hour. Koster had no problem with traction but he was driving a tractor
pulling an A trailer upon which a B trailer was mounted. It is his evidence
that stacking the B trailer adds substantially to traction on the road
surface. He believes the road surface was bare. As he went through the S turn
he claims to have seen the tractor-trailer behind him begin to lose control on
the turn. He did not witness an accident. There is some controversy with
respect to whether and, if so, how Kosters evidence was provided to the RCMP. MacBurney
says that when he learned Koster claimed to have evidence relevant to the
accident he went with Ms. Harrington to the RCMP detachment to advise the
police but was dismissed by an officer who told him not to tell the RCMP how to
do their job. The investigating officer denies that he said or would have said
such a thing.
[11]
Sangha was driving one of three B trains owned by G & R
Contracting Ltd heading north toward Quesnel on the day of the accident. The
lead vehicle was driven by Mr. Karmjit Kondolay (Kondolay). The trailing
vehicle was driven by Mr. Manprit Rai (Rai). All three drivers
testified. Kondolay is an experienced driver. He says that as he drove north
toward Quesnel the roads looked good. He saw no reason to be concerned, although
snow was falling. Highway 97 looked to be ploughed but Kondolay did not think
it had been well sanded. As he approached the S curve, his Jake brake caused
him to begin to skid. He accelerated so as to remove the brake. He warned the
others following him, with whom he had been in radio communication. He told
them to slow down because the curve was slippery. He is uncertain whether he
used his CB radio or walkie-talkie to warn the other driver. They had been
communicating by CB but in the heat of the moment he says he might have used
the other radio.
[12]
He claims to have seen Sangha begin to lose control of his vehicle, in
his rear view mirror, but he did not see the accident. Kondolay does not recall
seeing any other vehicles in the location of the curve where the accident
occurred. In particular, there was no vehicle between his truck and Sanghas
(which suggests that Koster may have seen Kondolays truck begin to slide,
rather than Sanghas). When he learned of the accident, he unhitched the
trailer from his vehicle in the parking lot of a restaurant some kilometres
north of the accident scene, and drove back to the scene. He parked about 300
meters from the accident and thought the travelled road at that point was
slippery. As he walked toward the accident he saw a police officer slip and
fall.
[13]
Sangha had been driving the route in question about twice a week for
over a year. He says that he was driving at about 80 km/hour as he drove north
along the highway and the roads were covered lightly with snow. He did not see
any sand on the travelled portion of the roadway. At trial he denied receiving
a radio warning from Kondolay but on his examination for discovery he
acknowledged that as he approached the scene of the accident he had been warned
that the curve was slippery. As he went into the curve, Sangha lost control of
his vehicle and it spun around completely and went off the highway into the
ditch on the east side of the road. He does not recall seeing Thiels vehicle
before the collision.
[14]
Rai, like Sangha, was driving an 82 foot long super B flatbed truck. His
vehicle was also empty. He recalls light snow falling as some vehicles drove
north toward Quesnel. The speed limit through most of the trip was 100 km/h. He
believes he was driving approximately 70 km/hour as he approached the scene of
the accident. He did not see the collision occur, but was alerted to some
problem by blowing snow across the highway ahead of him. He slowed but claims
that his vehicle slipped or lost traction as he approached the scene.
[15]
Rai does not remember seeing sanding or plough trucks along the highway
as he drove north from Williams Lake but he acknowledged that the road seemed
to be ploughed. Most of the paved surface of the highway was visible. There was
some sand visible in the snow at the scene of the accident and he does not
recall anyone having trouble walking.
[16]
Rai acknowledges that drivers must be particularly careful when driving
B trains that are unloaded and must allow extra distance for stopping and
must lower their speed so as to avoid a danger of swerving and whipping of the
trailers.
[17]
Thiels began driving early in the morning of February 18, 2007, on a
trip that had originated in Alberta and called for him to drop off a load at
Quesnel and pick up another load in the north Okanagan. He dropped off the load
in Quesnel and at about 11:30 a.m. started to head south on Highway 97 from a
point very close to the accident scene. It had been snowing through the early
morning and was still snowing lightly. Thiels says that he had no problems at
all driving through the day. As he approached the scene he thought that the
road was clear and the visibility was good but there was little sand or salt on
the road at the scene. He was approaching the accident scene at approximately
75 to 80 km/hour on a slight uphill. He suddenly saw Sanghas super B rig
coming at him backwards. To avoid a collision he had no option but to put his
vehicle into the ditch on the west side of the road. He believes that he had
only a second to react. As he went into the ditch, he passed very close to the
moving Sangha trailer.
[18]
Thiels testified from his significant experience that an empty B train
is unstable if the pup trailer is not stacked. Passenger vehicles are more
stable and have shorter stopping distances. Although the highway was slippery
at the scene, he had no problem walking and had no problem with his traction
while driving.
B. Evidence of the Condition of the Scene
[19]
Cst. Forsythe of the RCMP was dispatched to the scene of the accident
from the Quesnel detachment at approximately 11:40 a.m. and arrived about 15
minutes later. He says that it was snowing large wet flakes as he drove towards
the accident scene and that road conditions were bad between Quesnel and the
accident scene. He could drive no faster than 80 km/hour and had to drive
slower than that in order to cover the six to seven kilometres to the scene. He
did not see any road maintenance vehicles before getting to the scene of the
accident. When he stepped from his vehicle at the scene, he slipped and fell.
He agreed that road conditions could change rapidly, however, and he did see
sand in the snow at the accident scene.
[20]
Mr. Robert Pethick (Pethick), a road foreman employed by HMC, was
engaged in a road patrol on Highway 97 south of the scene at the time he was
advised that the accident had occurred. He returned to the scene and arrived
after police and other emergency personnel and therefore at least 20 minutes
after the accident. He took a series of photographs which were entered into
evidence, to which most witnesses were referred. These photos demonstrate that by
20 minutes after the accident there was a light skiff of snow on top of the
travelled portion of the roadway. Given that it was snowing before and sometime
after the accident, the photographs support the evidence of the number of
witnesses that the travelled road surface was for the most part bare at the
time of the accident. The photographs also demonstrate the presence of abrasive
material on and around the roadway. This is not disputed by anyone. The
question is whether what is seen in the photograph are remnants of old or
recent sanding of the road.
C. Road Maintenance
[21]
HMC called as witnesses Mr. John Andrushko (Andrushko), the
division manager for area 18, the area within which the accident occurred,
Pethick, the road foreman for this portion of area 18, Mr. John Maglio
(Maglio), the equipment operator responsible for patrolling the relevant
stretch of highway on January 18 and Daniel Haldorson (Haldorson), the
equipment operator responsible for patrolling the section of the highway in
question on the night before the accident.
[22]
Andrushko testified to the contractual relationship between HMC and the
Crown, and the obligations assumed by HMC. He identified Highway 97 as a class
A highway, requiring the highest standard of maintenance. That standard
requires HMC to patrol Highway 97 at least every four hours and to respond
within two hours to known hazards. HMC is contractually obliged to respond to
an accumulation of four centimetres of snow in travelled lanes on class A
highways.
[23]
Andrushko described the system in place to learn of bad weather and
hazards. He reviewed the weather records and the forecasts received by HMC. These
indicate that for most of the day of January 17, it was contemplated that the
following day, the 18th, would see low temperatures of minus nine
climbing to minus two in the afternoon. It was anticipated that there would be light
snow in the morning followed by freezing rain in the afternoon. At 9:30 a.m. on
January 18, HMC received an update from its weather forecasters indicating that
they then anticipated five to ten centimetres of snow in all areas between 9:30
a.m. and 4:00 p.m. It was anticipated that road temperatures would vary between
a low of minus seven to a high of minus four in the afternoon. Andrushko
described the policy of HMC with respect to the application of abrasives and
salt, and the rationale for that policy. Salt is not used on the roads if snow
is expected or if it is anticipated that temperatures will not rise above minus
six degrees. In the circumstances of this case, HMC did not intend to apply
salt to the roads because of anticipated snowfall. Additional employees were
called in to work during the day shift of January 18 to plough and sand the
roads.
[24]
Haldorson described regular patrolling and sanding on the night before
the accident. His evidence is not essential to the case of any party. The
evidence of Maglio, however, is critical. Maglio was described by his employers
as a very conscientious individual. He left the HMC works yard north of Quesnel
at 5:15 am on January 18, 2007. He drove through Quesnel to a point three
kilometres north of the accident scene, where he began his regular patrol. That
patrol called for him to drive south on Highway 97, a distance of approximately
45 km to a point known as the Cairn Site and to then turn north and return to
the starting point. Occasionally along this circular route, which he repeated
during the day, he stopped to load sand into his truck. It is Maglios evidence
that he spent about two thirds of his time on that date ploughing and one third
of his time sanding roads. It was his practice to sand hills and corners but
not to sand flat straight sections of the highway. He says he certainly would
have sanded the S curve on each occasion when he passed it. He passed the
scene of the accident heading south at about 5:30 a.m.; heading north at
about 8:00 a.m.; heading south again at about 8:10 a.m.; heading north
again at 10:30 a.m.; and heading south again at 10:40 a.m. The records
indicate that he used three truckloads of sand during the course of the day.
There was no significant cross-examination of Maglio other than the suggestion
that he had no specific recollection of which section of the road he sanded.
His testimony of an invariable practice of sanding curves and hills was not challenged
on cross-examination.
EVIDENCE WITH RESPECT TO DAMAGES
[25]
Ms. Harrington suffered an injury to the upper trunk of the left
brachial plexus. She is left with very little movement of the left shoulder and
is unable to lift her left arm at the shoulder. It will be difficult for her
to use her left hand in day-to-day activities. She has suffered a traumatic
brain injury. That injury has affected her cognition. She is irritable and
disinhibited. Her memory and concentration are poor. She suffers chronic pain,
for which she requires significant medication. She is now unemployable.
A. Evidence of Lay Witnesses
[26]
There was a wealth of evidence at trial with respect to the plaintiffs
background and pre-accident situation, including her pre-accident health and
employment. The plaintiff called numerous lay witnesses with respect to the
apparent effects of her injury upon her appearance, behaviour and abilities,
with a view towards describing the impact of the injuries upon her ability to
enjoy the amenities of life and engage in gainful employment.
[27]
Ms. Harrington is 45 years old. She left high school after grade
10, when she became pregnant with her first child, and was married shortly
thereafter. She had a second child in 1988 when she was 23 and soon separated
from her first husband. She did not work outside the home when her children
were infants. Her daughter remained with her after the separation until she was
seven or eight years old, when she moved to Fort St. John to be with her
brother and father. During some of that period Ms. Harrington was on
social assistance. Upon the departure of her daughter in about 1990, Ms. Harrington
moved to Edmonton and obtained employment. She completed her GED in 1992. She
left Edmonton to move to Quesnel to care for her mother in March 1996 and then
had a job at a restaurant and a nursery.
[28]
In February 1998 she obtained employment at the Billy Barker Casino, as
a dealer. She moved from that job to customer service at the Casino because of
pain in her right wrist, a consequence of a 1996 fracture of her forearm. When
she did so her wrist problems settled and she resumed most of her usual
activities. By 2004 she had been promoted to customer service supervisor. Her
reported income from employment that year was $23,061. That was the only year
in her life she had ever earned more than $18,000. She took a 3 month leave of
absence in 2005 and then returned to customer service (although not as a
supervisor) until February 1, 2006. She earned about $18,000 in 2005. When she
last worked at the Casino she was earning $12.83 per hour for 32.5 hours per
week.
[29]
While she was working at the Casino, she met Gerald MacBurney and began
living together with him in June 2005. Her daughter returned to live with her
in Quesnel. In the years prior to the motor vehicle accident, she spent
considerable time with fellow employees Mr. Darryl Mulholland
(Mulholland) and Ms. Bonnie Lynn Stacey (Stacey) and with her cousin,
Lorraine Harrington, a resident of Quesnel. Ms. Harrington testified that
she enjoyed her work at the Casino and planned to continue working for the
Casino indefinitely until a dispute with her employer arose as a result of the
fact that urethral stenosis caused her to take frequent bathroom breaks. She
left her job at the Casino on February 1, 2006, and then made a claim against
her employer resulting in a settlement or award.
[30]
Ms. Harrington applied for employment insurance in February 2006
and received employment insurance until late 2006 or early 2007. Shortly after
she left her job at the Casino, her mother became very sick with cancer, and died
in May 2006. In early 2006, Ms. Harrington was having difficulty dealing
with a personal problem then being experienced by her daughter. Ms. Harrington
says that she applied for many jobs while she was receiving employment
insurance but had no luck because her head wasnt in it.
[31]
She says that she began to seriously consider employment in December
2006 as her employment insurance was about to run out. She says she then spoke
with a number of potential clients and made arrangements to begin to operate an
unlicensed daycare in her home at the end of January 2007. She claimed to have had
arrangements in place to care of four children after school and two children
overnight. She anticipated that she would earn $162 per day. She had not sought
a business license or obtained insurance. She thought that it would permissible
for her to care for five children during the day and two at night, as long as
three of the five children were over nine years of age and provided that there
was some staggering of the hours during which she cared for the children.
[32]
If child care did not generate income Ms. Harrington would have
considered moving to the Lower Mainland to look for work in a casino.
[33]
Ms. Harrington had a complicated medical history that included a
wrist injury requiring surgery in 1999, gallbladder surgery in 2003-2004, a
hysterectomy for polyps in 2006, and some complaints leading her general
practitioner to believe that she suffered from irritable bowel syndrome in
years prior to her accident. She had suffered from depression as a result of
abuse, resulting in a psychiatric admission to hospital at age 18. There is
evidence that she had some ongoing struggles with depression. She suffered from
episodes of depression in 2004 and 2005 for which she sought treatment. The October
2004 depression was thought to have been having some cognitive effects. In
February 2005 she was diagnosed with an adjustment disorder with anxiety.
[34]
Despite that medical history, Ms. Harrington says that she was in
generally good health before the motor vehicle accident, that her ability to
work was not affected by any ongoing medical problem and that she was not
suffering from ongoing depression. She had never been diagnosed with a major
depression or significant psychiatric illness. Her own evidence of effective
pre-accident functioning is borne out in the evidence of a number of
independent witnesses.
[35]
Jessica Driscoll says that while she lived with her mother in 2002 to
2005, Ms. Harrington was spirited and fun; she engaged in outdoor
activities and was a very social person. She took care of herself and dressed
well. She did not appear to be limited by any of her medical problems.
[36]
MacBurney says that while Ms. Harrington had to go to the bathroom
often, she otherwise had no physical limitation. She was a good homemaker and
emotionally stable. He says that when Ms. Harringtons son went into
rehabilitation, sometime prior to the motor vehicle accident, Ms. Harrington
stopped regularly using marijuana and drinking and that he planned to marry Ms. Harrington.
[37]
Mulholland who had known Ms. Harrington from work at the Casino
from 1998 onward, described Ms. Harrington as a warm, social person who
was sharp and organised. She engaged in recreational activities, including
camping, fishing and snowmobiling, without apparent limitations. Stacey, who
also knew Ms. Harrington from work, similarly expressed the view that Ms. Harrington
had no apparent physical or emotional restrictions prior to the motor vehicle
accident. Ms. Harringtons son, Joe Driscoll, also testified to his
mothers pre-accident activities including fishing, snowmobiling and horseback
riding.
[38]
Lorraine Harrington saw Shelley Harrington almost every day before the
accident. Ms. Harrington lived with Lorraine Harrington for six or seven
months in 2004. During that time, she is said to have pulled her own weight
without limitations. Lorraine Harrington described her as someone who was happy-go-lucky.
She had a good memory, particularly for numbers, names and dates.
[39]
Ms. Harrington testified with respect to the effects of the injury
upon her health and life. The injury to her brachial plexus initially resulted
in complete loss of use of her left arm. She underwent a long and unsuccessful
operation to repair the brachial plexus, performed by Dr. Thomas Zwimpfer
on October 22, 2007, and a later, successful but very painful tendon transfer
procedure, to restore elbow flexion, performed by Dr. Thomas Goetz (Dr. Goetz)
on September 8, 2009. She was very sensitive to movement that caused pain for
many months following that operation. That tendon transfer procedure was
successful in enabling her to lift her left arm to a ninety-degree angle
without assistance. However her left arm is still of very limited use to her.
Because of overuse, she now gets throbbing in her right forearm and elbow. She
has headaches daily which she associates with pain in her neck and back, and
with stress. She has lower back spasms. She is left with scarring where
tendon grafting has occurred and has lost sensation over large areas of her
neck and chest. She suffers from chronic pain in her lower back, neck and upper
back and left arm. She believes that it has been approximately a year and a
half since she last experienced any improvement in her condition.
[40]
She feels that her memory is worse than it once was. Her memory before
the accident was exceptional. She could remember the names of thousands of the
Casinos clients. Now she says that she has good long term memory but a very
poor short term memory. She forgets appointments and forgets to take
medications. She cannot remember her daughters phone number. She is very
emotional and gets angry easily. She has been to counselling with Dr. Derrick
Klassen (Dr. Klassen), a psychologist, regularly since her move to the
Lower Mainland in 2009. Counselling has been of assistance in reducing her
outbursts. She takes significant medication, including oxycotin and oxyconten,
Tylenol 3, non-steroidal anti-inflammatories and Lyrica, a medication
prescribed for neurogenic pain which can be associated with tiredness and
reduced concentration.
[41]
Before the accident she weighed 110 to 120 pounds and she now weighs 160
pounds. She is five feet tall and is concerned about the weight gain which she
associates with inactivity. She said that it now takes her hours to do her hair
and makeup and even simple tasks are difficult. She use to love riding horses
but has not enjoyed riding since the motor vehicle accident. She is not
interested in hiking because she feels that her balance is poor. She cannot go
snowmobiling because there is too much painful banging of her arm associated
with that activity.
[42]
When caring for children she becomes short-tempered. Before the accident
she was patient and had no difficulty dealing with children. She does not feel
she is capable of caring for children now.
[43]
She says it would be a real struggle for her to live alone and she is
afraid of doing so. She cannot take on any big task. She cannot take care of
cleaning and says her home is not well kept even when she has assistance.
Cooking is difficult. She now receives nine hours of homemaking assistance per
week but says that is insufficient to keep her home as clean as she used to
keep it. She has been assisted by an occupational therapist and a
kinesiologist.
[44]
From March 2009 to date, Ms. Harrington has been able to drive a
vehicle with adaptation. Initially she was nervous doing so but that appears to
have resolved with time.
[45]
Her relationship with her friends has been affected by her disability.
She spends limited time with others. She has problems bathing, showering and
dressing. Hygiene and dressing are difficult because of the limited use of her
arm. She has fallen in the bath. She is self-conscious and appreciates that she
is not as bright as she use to be. She says she rarely leaves her apartment
except to attend scheduled appointments or activities. She feels that hiking is
unsafe because she cannot protect herself from injury if she falls. She has
found some volunteer work and done some babysitting. She would like to work as
she has always supported herself. She has worked as a dispatcher in the past
and might try that as a part time job.
[46]
Ms. Harrington says that she has no experience in financial
management and believes she would need someone to help her with money
management in the event she receives a substantial award.
[47]
When this trial commenced, Ms. Harrington was living with Gregory Trafton
(Trafton) who she met on the internet in November 2009. Trafton was present
in court when Ms. Harrington was asked about marihuana use. After hearing
her testify to occasional use of marijuana, he asked her to agree that she
would never do so again. Trafton said that he would not tolerate her smoking
marijuana. She advised him that she would not tolerate an ultimatum from anyone
and in result, during the course of the trial, they agreed to separate. They
had previously separated on one occasion and reconciled but given the views expressed
at trial, the relatively short duration of their relationship and Ms. Harringtons
history, I conclude, for the purposes of the assessment of damages in this
case, that Ms. Harrington will now live alone, or, as in the past, with
friends and family until and unless she able to establish another relationship.
[48]
A number of witnesses testified to a dramatic change in Ms. Harringtons
abilities, her emotional state and her personality following the accident.
[49]
Her daughter Jessica, who saw her at home after her discharge from the
hospital in Quesnel in January 2007, testified that she was then confused and
remembered little.
[50]
MacBurney says that when she returned home Ms. Harrington
confabulated and was confused. Initially he went on employment insurance for a
while and looked after Ms. Harrington at home. He quit his logging job to
be home on longer shifts and to be closer to her. Eventually he moved with her
to Likely, where he found work in a mine, in early April 2007. They lived there
until February 2008. In that period, she became frustrated because of the loss
of use of her left arm. She had homemaking help one day a week but was unable
to keep up the home. Travelling to medical appointments was difficult. Many
chores waited until MacBurney had time off from his work (he was on a 7 days
on/7 days off rotation). Ms. Harrington says that she was not the same
person because she became depressed, and ended the relationship in February
2008.
[51]
Joe Driscoll, her son, had been estranged from his mother when he was
young but developed increasing contact with her after the death of his
grandmother. He saw her when she lived in Quesnel and described her active
outdoors lifestyle. He again saw her in Likely, after her injury, in September
2007. He said that she appeared to be a changed person. She seemed confused and
incoherent.
[52]
Lorraine Harrington saw Ms. Harrington after the accident,
initially every day while she lived in Quesnel, and then less frequently but
regularly in Likely, and then, again, when she moved back to Quesnel for a few
months in 2008. Lorraine Harrington says she seemed incapable of doing
anything at that time. She needed constant care. She was not happy, always on
pills, did not remember things well and had to write things down. On one
occasion she tried fishing but had difficulty and did not enjoy it and she never
went hiking.
[53]
Stacey met Ms. Harrington when she started working at the Casino in
2002. Ms. Harrington lived in her home for a year in 2004. Stacey describes
her as a tidy, well-put-together and energetic person. She was a good
housekeeper and cook, and good with children. Stacey thought she had no
physical limitations. She saw Ms. Harrington immediately after the
accident and then regularly on her return to Quesnel in 2008. She was a
totally different person. Her hygiene was poor. She could not do anything
physically and she seemed to be depressed. Stacey now has concerns about
letting Ms. Harrington care for her children.
[54]
Mulholland says that prior to the accident Ms. Harringtons memory
was remarkable; she was very sharp and very organized. He thought she was good
with children and would make a good caregiver. He was aware that a wrist injury
had limited her ability to work with cards and necessitated her move to guest
services. He also acknowledged that in the past Ms. Harrington had been a
regular marijuana user. After the accident he found Ms. Harrington to be very
forgetful. Her hygiene deteriorated. Her grooming was poor; she appeared to
have no interest in her appearance.
[55]
In late spring 2008, Ms. Harrington moved to Kelowna where she
lived with Kathy Schwientek and Gary Turlock for eight months. She then moved
into the home of Robert and Kristina Peake. She lived with the Peakes for
approximately seven months to early summer 2009. At that time she still had
significant physical limitations. Kristina Peake testified to those limitations
and to changes in her demeanour. Whereas she had previously been lively and
energetic and a good storyteller, she became abrupt, disinhibited, forgetful
and distractible. She attempted to do some work around the house but her
efforts were painful to watch. She could not do any sweeping or vacuuming. She
took few showers. She had difficulty dressing and caring for herself. Ms. Peake
noticed that she could not remember what she was talking about. She became
abrupt, insensitive and disinhibited. From time to time the Peakes left Ms. Harrington
alone with their children but they became increasingly comfortable doing so.
[56]
Jessica Driscoll saw her mother in Kelowna. She found her irrational and
emotional labile. She had to repeat things to her mother to get her to
understand them.
[57]
Ms. Harrington moved to the Lower Mainland in the early summer of
2009 because she was having trouble finding a place to live in the Okanagan. She
moved in with her son and his wife and their one-and-a-half-year-old daughter
for about three months. Mr. Driscolls wife and daughter left the home
around Christmas 2009, leaving him and Ms. Harrington alone for the
following months.
[58]
While living with his mother Driscoll found that he was more of a parent
than a son to her. He had to remind her to turn off lights and close doors. She
did menial tasks but little else. He thought she was not the same person she
had been before the accident. She had difficulty completing thoughts or plans,
required constant reminding and had little initiative. She did some babysitting
but only for brief periods because of her forgetfulness.
[59]
Ms. Harrington moved out of her sons house to take up residence
with Trafton in Abbotsford in May 2010. They lived together until mid-way
through the trial of this action and had plans to marry on July 4, 2011.
Trafton, of course, did not know Ms. Harrington before her motor vehicle
accident but testified to her current difficulties. He noted dramatic mood
swings and that she becomes fixated on things. She tended to simple tasks
around their apartment home but was slow in doing so. He considered her short
term memory to be very bad. She left keys in the car and forgot to turn off
lights. He found her very emotional and very stressed while caring for small
children, which she did occasionally when she lived with him.
[60]
Ms. Harrington has occasionally been seen by Mulholland and Stacey
since moving to the Lower Mainland. Both testified that she is involved in very
limited activities. She has no initiative and has gained weight. She is
described by both as forgetful and less careful.
B. Experts
in Physical Medicine and Rehabilitation
[61]
The parties called two experts in the field of physical medicine and
rehabilitation. Dr. Jubert Anton (Dr. Anton) examined Ms. Harrington
on June 22, 2010, and provided a report to plaintiffs counsel on the same
date. Dr. Nittin K. Reebye (Dr. Reebye) examined Ms. Harrington
on December 2010 and provided a report for counsel for Sangha on January 4,
2011.
[62]
Dr. Anton concluded that Ms. Harrington has suffered an injury
to the upper trunk of the left brachial plexus resulting in the development of
a neuroma-in-continuity. He says that following the successful tendon transfer
to restore elbow flexion performed by Dr. Goetz on September 8, 2009, Ms. Harrington
continued to have very little movement of the left shoulder and was unable to
lift her left arm at the shoulder or to bring it forward or bring it behind
her. Although she has good strength in the left hand, the weakness in the left
shoulder will make it difficult for her to use her left hand functionally in
any day-to-day activities. She was also left with sensory impairment in the
left arm. The brachial plexus injury is causing chronic pain of the left arm,
shoulder and hand, which in Dr. Antons opinion is partly neuropathic
(arising from nerve injury) and in part nociceptive (arising from noxious stimuli).
Dr. Anton does not foresee any neurological recovery of the brachial
plexus.
[63]
Ms. Harrington had suffered a traumatic brain injury which Dr. Anton
describes as a complicated mild traumatic injury or a moderately severe
traumatic brain injury. The criteria used by Dr. Anton to describe the
severity of the brain injury include the patients Glasgow Coma Scale score
after her injury, the duration of post-traumatic amnesia and the presence of
evidence of physical injury to the brain. Evidence of the latter was found in
the reports of Dr. David Fenton (Dr. Fenton) on an MRI taken June
17, 2009. That study demonstrated low density changes in the interior left
frontal lobe, suggestive of previous hemorrhagic shear injury. That evidence of
diffuse axonal injury was thought by Dr. Anton to be consistent with the
deficits demonstrated on neuropsychological testing. He testified that recovery
after traumatic brain injury is maximal in the first two years following injury
and that persistent deficits arising from traumatic brain injury are now
unlikely to improve. Whether the brain injury is characterized as mild,
complicated or moderate is immaterial for our purposes, according to Dr. Anton,
as both types of injuries have the same prognosis for permanent deficits.
[64]
Dr. Anton says that as a result of her brain injury there is a 4% chance
that Ms. Harrington will develop post-traumatic seizures. She is at
increased risk for the development of Alzheimers disease. She is left with
reduced cerebral reserves. She is likely to suffer depression as a result of
her injury. Frontal lobe injuries are likely to affect executive functioning,
such as planning, and the understanding of the consequences of behaviour and,
hence, lead to disinhibition and emotional problems.
[65]
Dr. Anton found that Ms. Harrington was suffering from
mechanical back pain, leading to deconditioning and loss of strength. Ms. Harrington
reported headaches that were likely post-traumatic. She was suffering from right-shoulder
arm and hand pain that was probably, at least in part, myofascial. It is
possible that Ms. Harrington is developing arthritic changes in her right
hand. Such arthritic changes, in Dr. Antons opinion, may be accelerated
by increased use of and reliance upon the right hand.
[66]
Dr. Anton says that Ms. Harrington will require assistance
with household tasks, including home maintenance. He says that while she has
not yet reached the point of maximum medical improvement, further significant
improvement is now unlikely and she will not improve to the point where she is
competitively employable.
[67]
He recommends a regular review of an exercise program by a
physiotherapist, the assistance of a kinesiologist or personal trainer, regular
occupational therapy until a plateau is reached, and intermittent assistance
thereafter, the appointment of a case manager to assist with gaining access to
medical and community services, consultation with a recreational therapist, and
psychological counselling. He disagrees with and rejects Dr. Reebyes view
that it is enough to train Ms. Harington to do exercises. He says her
exercise needs are complex and will need ongoing reassessment as those needs
change through her life. Dr. Anton says that as she encounters
difficulties in the future, depression will affect her ability to make good
decisions on her own behalf and she will need assistance of an occupational
therapist and perhaps a case manager (although he says that an occupational
therapist may be able to fill the case manager role).
[68]
Dr. Anton says that it is likely that Ms. Harrington will
require additional home support and assistance with personal care as she ages
and that her injuries will accelerate the need for such assistance.
[69]
With respect to the prognosis, Dr. Anton says there is some
possibility of an improvement in the functional outcome if Ms. Harringtons
problems other than the traumatic brain injury, which he now regards as
irreversible, can be resolved or ameliorated. He concludes, however, that she
is probably now at the point of maximal medical improvement and that her current
needs are likely to continue.
[70]
Dr. Reebye describes the brachial plexus injury in a similar
fashion and also concludes that Ms. Harringtons left arm function will be
permanently limited. He is also of the view that Ms. Harrington is
suffering from chronic neuropathic pain as a result of the brachial plexus
injury and that pain will be hard to treat. Dr. Reebye says Ms. Harrington
suffers from tenderness in her low back and sacroiliac regions. He does not
believe that Ms. Harrington is at risk of developing a seizure disorder. Ms. Harrington
has reached maximum level of improvement for her physical deficits and further
improvements will be minor.
[71]
Dr. Reebye says cognitive deficits are mainly with short-term
memory and that while these alone do not make her totally unemployable, the
combination of cognitive deficits and problems with her left arm and chronic
pain and the use of medication make it more difficult for her to hold a full
time competitive job. Dr. Reebye says that Ms. Harrington has the
ability to start working in sheltered situations part-time and gradually
increase that sheltered work. He says that there is a potential for more work
activities over time.
[72]
He concludes that the cognitive deficits caused by the traumatic brain
injury are permanent but that some deficits are likely be caused by chronic
pain and use of medication and emotional problems, and that those will improve
if the chronic pain is resolved, if medication can be reduced and if the
emotional problems are resolved. He says the emotional problems stem from
chronic pain and difficult adjustment to the alteration of her lifestyle.
[73]
Dr. Reebye agrees that Ms. Harrington will have to engage in
regular exercise program and that occasional review of her program by a
physiotherapist or kinesiologist would be helpful, but he would prefer to see
less intrusive involvement in Ms. Harringtons ongoing exercise in
physiotherapy than recommended by some of the experts. He suggests that she is
capable of learning to manage her own rehabilitation. He does not believe that
a professional case manager is required because he believes that her cognitive
deficits are not significant enough to warrant a case manager. He does not
believe that Ms. Harrington requires a one-on-one rehabilitation assistant
but he says that occasional review of her needs by a therapist or other
caregiver will be appropriate.
[74]
Dr. Reebye agrees that psychological care will be required, as
recommended by the psychologist or psychiatrist and that chronic pain
management will be useful. He recommends that an attempt be made to wean Ms. Harrington
from narcotic medication.
[75]
He says that Ms. Janice Landys (Landy) recommendations (canvassed
in detail below) for activities of daily living are appropriate and adequate.
He says that occupational therapy consultation should be tailored to focus on
specific attainable goals. He agrees with the recommendation that
transportation assistance be afforded to Ms. Harrington and that an avocational
consultant be retained.
[76]
He believes that three hours of home support twice a week should be
sufficient and that exterior home maintenance help will be required if she
lives in a single family home on her own. Despite expressing that opinion with respect
to the home care required, he acknowledged in cross-examination that this
opinion is not informed by careful review of her needs and is founded upon his
view that she was in fact receiving six hours per week of assistance and that
was proving to be adequate. In fact she was receiving more assistance and it
was still inadequate.
Summary
[77]
The experts in physical medicine and rehabilitation disagree with
respect to whether, and if so, the extent to which Ms. Harringtons functional
problems are caused by an organic brain injury (which is untreatable and
irreversible) or to the coexistent and overlapping depression, chronic pain and
medication for that pain. The experts acknowledge that consistent results have
been obtained on neuropsychological testing, despite variations in the level of
the plaintiffs pain and her emotional state and that the deficits demonstrated
on neuropsychological tests are consistent with an organic brain injury. That
is some evidence that the organic brain injury is a large component in the
plaintiffs functional difficulties.
[78]
Dr. Reebye places significant weight on the patients presentation
as an alert, well oriented and fluent person, who was a good historian
demonstrating minimal cognitive deficits on examination. He also appears to
have placed some weight upon her successful performance of a mini-mental status
examination. He expresses the conclusion that Ms. Harrington has attended
therapies and seen caregivers regularly and is independent in activities of
daily living. There is some inconsistency between Dr. Reebyes description
of her high level of independence and the evidence of the lay witnesses
summarised above.
[79]
Dr. Anton and Dr. Reebye are both of the view that Ms. Harringtons
cognitive deficits are multifactorial. A significant contributor to those
deficits is traumatic brain injury. She is also affected by pain, medication,
depression, lack of sleep and anxiety. The experts agree that she should be
weaned from opioids, if possible, because they are not effective in treating
neuropathic pain and short-acting medication is generally risky. The experts
also agree, however, that it is hard to tease out what can be addressed from
what cannot be addressed in the causes of Ms. Harringtons cognitive
deficits. Chronic pain management programs, according to Dr. Anton, are
for adaptation but not elimination of pain. Dr. Reebye agrees that people
with brain injuries, such as Ms. Harrington have a much higher risk of
psychiatric disorders, anxiety and depression as and when they become aware of
their deficits.
[80]
There appears to be general agreement amongst the experts that Ms. Harrington
is currently disabled from competitive employment as a result of her cognitive
deficits, the loss of use of her left arm and her chronic pain. They also agree
that the cognitive deficits from which she suffers are somewhat blurred by her
chronic pain, her medication use and depression. Dr. Reebye, like Dr. Paul
Janke (Dr. Janke), believes that the plaintiff has the capacity to
manage a simple physical therapy, recreation and employment program with the
regular assistance of an occupational therapist but no other consultants. The
only prospect for future employment held out by Dr. Reebye hinges upon
some improvement in the plaintiffs depression, some reduction in her reliance
on narcotic medication and some reduction in her chronic pain.
C. Experts
in Psychiatry and Psychology
Dr. Anderson
[81]
Ms. Harrington was seen by a psychiatrist, Dr. Stephen
Anderson (Dr. Anderson), on March 9, 2009. Dr. Anderson wrote a
report for Ms. Harringtons counsel on March 16, 2009. She was reassessed
by Dr. Anderson on August 30, 2010, and that reassessment resulted in a
report dated September 8, 2010.
[82]
Following his initial interview and examination of the records, on March
9, 2009, Dr. Anderson was of the view that Ms. Harrington had
developed physical, cognitive and emotional difficulties as a result of the
motor vehicle accident. He described her brain injury as being of mild to
moderate severity. Despite suggestions by others, he felt that she had not
suffered post-traumatic stress disorder because post-traumatic amnesia
prevented her from having terrible memories of the trauma causing her injury
and her psychiatric symptoms were not sufficient to lead to that diagnosis. He
felt that Ms. Harringtons depressive symptoms overlapped with symptoms
due to chronic pain and anxiety but he did not believe that she had suffered a
major depressive disorder. He described her condition as a chronic adjustment
disorder with mixed anxiety and depressed mood. Her adjustment was due to the
disability caused by her physical injury and the cognitive difficulty she
experienced as a result of her brain injury.
[83]
When he later saw Ms. Harrington, on August 30, 2010, Dr. Anderson
was of the view that the evidence of cognitive deficit on neuropsychological
testing and the evidence of brain density changes on the CT scan justified the
conclusion that Ms. Harrington had suffered a brain injury of moderate
severity. He remained of the view that Ms. Harrington was suffering from a
chronic adjustment disorder with mixed anxiety and depressed mood and not a
major depressive episode.
[84]
Dr. Anderson noted that Ms. Harrington demonstrated some signs
of cognitive impairment in her dealings with him. She was disinhibited and on
her second assessment forgot that she had previously seen him and spoken with
him extensively about her case. Dr. Anderson was of the view that her
disinhibition and lability were classic symptoms of a frontal lobe injury.
[85]
He recommended continuing long-term supportive psychotherapy at a rate
of six to twelve sessions per year. He agreed with the recommendation that Ms. Harrington
would benefit from having a case manager to monitor her over time and to ensure
appropriate support services. He agreed with the recommendation that Ms. Harrington
have assistance from an occupational therapist and that her exercise should be
directed by a kinesiologist or experienced personal trainer. He did not agree
with the suggestion that Ms. Harrington must develop independence and will
benefit from a minimal level of therapy. He agreed that independence is an
objective of therapy but expressed the view that regular therapy will
facilitate involvement in social and recreational activities and will not be so
frequent as to impinge upon Ms. Harringtons independence.
[86]
On the issue of causation, Dr. Anderson agreed that it is
impossible to parse out the effects of depression, pain, medication and brain
injury on the plaintiffs cognitive abilities. In his opinion, however, the
predominant cause of these difficulties, as described by neuropsychologic testing,
is the brain injury. First, the deficits found on testing and the emotional
difficulties reported were classic consequences of a head injury. Second, the
deficits found on testing were consistent over time, despite fluctuations in
medications and levels of pain and the emotional consequences of that pain. Last,
the psychological illness diagnosed by Dr. Anderson and others, an
adjustment disorder, is not usually associated with any significant cognitive
problems. He agreed that the pre-accident history provided to him by the
patient suggested that she was emotionally vulnerable but thought it was
significant that, despite a traumatic childhood and difficulties in adult life,
she had not developed any major psychiatric problems before the accident.
[87]
With respect to the prognosis, it was Dr. Andersons view that
there is no significant prospect for improvement of the brain injury, more than
two years post-accident. There is some prospect of improvement of the symptoms
arising from the adjustment disorder but that prospect is slight, given that it
is associated with chronic pain. There is also some prospect that learned
techniques for dealing with emotional problems and memory deficits will improve
her day-to-day functioning. For that reason he recommends significant
continuing psychological counselling, occupational therapy and exercise. Over
time there may be some improvement in her cognition but it is likely, in Dr. Andersons
view, to be minimal.
[88]
Dr. Anderson feels that Ms. Harrington is competitively
unemployable as a result of her pain, poor memory, concentration problems,
emotional fragility and disinhibition. He says there is a possibility that Ms. Harrington
has suffered a mild global impairment of her intellect. He could not see her
working except in a sheltered environment.
Dr. Bishop
[89]
Ms. Harrington underwent a full day of psychometric testing and
interviewing on June 15, 2009, at Dr. Carole Bishops office (Dr. Bishop).
Dr. Bishop examined the test results and prepared a report dated July 20,
2009, which is in evidence. Although there is some uncertainty with respect to
this question, given the absence of pre-accident testing or other useful data,
she was of the view that Ms. Harrington may have suffered mild suppression
of global intellect as a result of her brain injury. The tests performed
demonstrated difficulties with psychomotor processing speed, verbally-mediated
learning and recall for non-contextual information. Dr. Bishop thought she
demonstrated persistent visual learning and memory impairment of at least
moderate severity and selectively impaired attention capacity for higher-order
complex attentional challenges. Her visual memory was felt to be frankly
impaired. She demonstrated some irritability and mild verbal disinhibition. These
findings by Dr. Bishop were thought to be consistent with those described
in a neuropsychological report written by Dr. Harry B. Miller (Dr. Miller)
[90]
Her deficits were considered by Dr. Bishop to be multifactorial
(given the past history of substance abuse, the ongoing use of medication,
disruption of sleep and persistent depression) but most likely related to her
head injury because they were both consistent with and characteristic of the
brain injury described in the records. Chronic pain was unlikely to produce the
results on the neuropsychological testing done by Dr. Bishop.
[91]
Dr. Bishop did not feel that the patient met the full criteria for
clinical depression.
[92]
Because of the interval between injury and testing. Dr. Bishop was
of the view that the deficits observed were likely to be permanent to the
extent that they were a result of injury. Cognitive limitations were expected
to affect employability. At p. 6 of her written opinion she notes:
Her cognitive limitations
appeared to be chronic and are of sufficient severity at least for
visually-mediated learning and recall as well as learning of new verbal
information, such as instructions as well as her demonstrable limitations in
complex and higher-order attentional processing would make it very difficult
for her to manage mentally mediated tasks, and her left arm and other physical
limitations superimposed barriers that severely limit her current vocational
capacity.
[93]
Dr. Bishop felt the patient was not competitively employable
because the evidence of her physicians was that she was not fit for manual
employment and she was likely to have problems with her attention and to be
unable to acquire new job skills due to her limited concentration and memory
aptitudes.
[94]
She recommended a pain consultation for headaches and chronic pain
management. She recommended psychological intervention and focussing on a
cognitive behavioural approach to develop a coping mechanism. She recommended
vocation evaluation and support.
Dr. Janke
[95]
Ms. Harrington was further examined by Dr. Janke, a forensic
psychiatrist, on January 12, 2010. Dr. Janke prepared a report on his
examination of Ms. Harrington for counsel for Sangha on March 3, 2010, and
a report in response to Ms. Harringtons expert reports on December 20,
2010.
[96]
When Dr. Janke saw Ms. Harrington she was suffering
from severe neuropathic pain. She complained of headaches and back pain. She
described impairment in mood with frustration, irritability and emotional
lability. She had complaints of reduced memory. Dr. Janke felt she met the
criteria for a diagnosis of mild post-traumatic stress disorder and that she
was presenting sufficient symptoms of depression to justify a diagnosis of mild
to moderate depression. He felt her memory impairment was relatively mild and
was not apparent in the context of the clinical interview. However, he did not
have the results of neuropsychological testing. He felt that appropriate
self-management of pain by Ms. Harrington would markedly reduce the impact
of the pain on her daily functioning and would almost certainly improve her
mood.
[97]
In his first report, Dr. Janke made no attempt to describe the
nature and extent of the impairment arising from the traumatic brain injury. In
describing her difficulties with short term memory, he wrote: it does not
appear that this has shown significant improvement over time which is not
consistent with the typical course following a mild traumatic brain injury.
That observation is inconsistent with the evidence of the lay witnesses and Dr. Jankes
own record of Ms. Harringtons evidence. At p. 3 of appendix A of his
report he noted: Ms. Harrington states in the first six months following
the accident she was repeating herself a great deal and that her memory was
quite a bit worse. She states that there has been improvement over time. He
later notes that she reported that she had felt suicidal in the past but after
counselling states that she now tries to keep her head from going there. It
was only after lengthy and pressing cross-examination on this issue at trial
that Dr. Janke agreed that the pattern of recovery demonstrated by Ms. Harrington
following her traumatic brain injury is, in fact, consistent with an organic
injury. It is now acknowledged that Ms. Harrington had a moderate or
complicated mild traumatic brain injury with evidence of damage due to
micro-hemorrhages in the frontal lobe of her brain and that there is evidence
of gradual recovery from significant memory problems consistent with recovery
from that traumatic brain injury.
[98]
Dr. Janke acknowledges that the plaintiffs pain is primarily
physical and neurogenic in origin. Psychological factors do not play a
significant role in her pain and her pain is unlikely to be diminished by psychiatric
treatment. He agrees that the patient should have access to psychiatric
counselling through the course of her life to deal with emotional issues
arising out of her chronic pain. He agrees that she will need such counselling
for the rest of her life but disagrees with Dr. Andersons estimate of the
required frequency.
[99]
Dr. Janke further says if, as suggested by the sequence of
examinations in this case, Ms. Harrington has mild post-traumatic stress
disorder and depression that varies in severity over time, she will periodically
require psychological or psychiatric counselling when her symptoms are
significant and the situational depression is occasionally rekindled. He
acknowledges Ms. Harrington may require anti-depressants indefinitely.
[100] Dr. Janke
was of the view that Ms. Harrington was competitively unemployable when he
saw her, but expressed the opinion that if her condition dramatically or
substantially improves, then there is a prospect that she may be employed. There
is a prospect that if her ability to cope with pain improves substantially,
then her cognitive functioning will improve as well.
[101] On the
question of her prior psychiatric history, Dr. Janke agreed that there was
nothing in the case prior to the motor vehicle accident to indicate that Ms. Harrington
was likely to suffer from persistent psychiatric problems that would disable
her.
[102] Dr. Janke
was adamant that there is a methodological error in performing
neuropsychological testing on two occasions separated by months. He does not
regard the consistent results of the neuropsychological testing in this case as
significant. He does, however, acknowledge that given the changes on the CT
scan he would expect the plaintiff to suffer from some neuropsychological
deficit. He also agrees that the deficit discerned on testing is consistent
with a traumatic brain injury. The results of the neuropsychological testing
tell us what Ms. Harringtons capacity is but, in Dr. Jankes view,
they are not of assistance in parsing out the effect on her cognitive skills of
the brain injury, as distinct from the effects of chronic pain, emotional
dysfunction and medications. Having said that, the most Dr. Janke could
say with respect to the prognosis is that while the physical and neurological
deficits are permanent, the plaintiffs ability to cope with pain and her
reliance upon medication may be addressed in a manner that leads to some
improvement in her cognitive functioning.
Dr. Miller
[103] The
plaintiff further underwent neuropsychological testing under the supervision of
Dr. Miller in March, 2009. Dr. Miller was retained by the solicitors
for Sangha. His results and opinions were not dissimilar from Dr. Bishops.
His test results suggested that Ms. Harrington had deficits on testing
consistent with a traumatic brain injury at the upper end of the mild range for
severity. There was thought to be some possibility that her intellectual
capacity had been mildly reduced. She demonstrated some memory deficits and had
some trouble providing appropriate responses to social and common sense judgment
questions. Dr. Miller thought that a pain management program was justified
and that the plaintiff would benefit from psychotherapy.
D. Vocational and Occupational Evidence
[104] Ms. Harrington
was assessed on March 8, 2010, by Louise Craig (Ms. Craig) who is an
expert in physiotherapy and a certified work-capacity evaluator and life
planner. Ms. Craig prepared a functional capacity evaluation on March 16,
2010 for counsel for the plaintiff. On March 5, 2010, Ms. Harrington
attended at an independent medical evaluation conducted by Dr. Daniel
Gouws (Dr. Gouws), a physician whose practice is restricted to
occupational health. Dr. Gouws prepared a report for Ms. Harringtons
counsel on September 7, 2010.
[105] On March
2, 2010, Ms. Harrington attended at an interview and an avocational
testing conducted at the office Joseph Hohmann (Mr. Hohmann), an
avocational rehabilitation consultant. On May 13, 2010, Mr. Hohmann
prepared a report on that interview and testing for counsel for the defendant
Sangha.
[106] On July 8,
2010, Ms. Harrington attended at the office of Niall Trainor (Mr. Trainor),
a registered rehabilitation professional. On October 18, 2010 Mr. Trainor
prepared an avocational rehabilitation assessment report based on that comprehensive
assessment for Ms. Harringtons counsel.
[107] Ms. Craig
concluded that Ms. Harrington clearly did not meet the physical demands of
her intended employment as a child care worker. Despite the fact that Ms. Harrington
appeared to consistently use good effort during her evaluation, Ms. Craig
found that she had very little functional use of her left arm and would not physically
be able to work with young children. Accepting Ms. Harringtons description
of her judgment and memory deficits and based in part upon Ms. Harringtons
inability to attend at appointments as directed by Ms. Craig, she
concluded that it would be inappropriate to recommend that she work with young
children. Ms. Craig noticed an element of emotional lability. She
concluded that Ms. Harringtons prospects for gainful employment were dismal.
She does not have the capacity to perform physical work and is limited from
engaging in many sedentary jobs by her inability to lift, her weak left hand
grip and limited fine motor dexterity of her left hand. She suffers from
chronic pain that affects her ability to concentrate and learn new skills. She
has severe headaches that affect her ability to concentrate. Ms. Craig
concludes: I find that Ms. Harrington is not competitively employable on
a full time basis at any job that she has held in the past.
[108]
Dr. Gouws examination revealed ongoing left upper limb
dysfunction, complicated by the development of chronic pain. Ms. Harrington
reported ongoing headaches and ongoing myofascial pain of the back and neck. In
addition to these physical symptoms, Ms. Harrington complained of
difficulty with her memory. Dr. Gouws observed:
79 Ms. Harrington is
now more than three years post-injury. She has had extensive medical treatment
and surgery as well as rehabilitation. It is my opinion that she has been left
with a permanent functional impairment and that it is unlikely that her
condition will improve. Ms. Harrington is also at increased risk of
developing further mental and physical problems in the future such as
depression and further medical complications as outlined by Dr. Anton in
his medical report of June 22, 2010.
[109]
With respect to work, he concluded:
84 It is my opinion that
as a result of Ms. Harringtons combined physical and cognitive barriers,
she is not competitively employable in the open-job market. Whereas Ms. Harrington
may be able to overcome some of these barriers, the combined effects of her
barriers to employment have significant negative implications for her ability
work.
[110] Those
barriers include the traumatic brain injury, the left upper limb dysfunction,
her chronic pain, the lack of other avocational qualification (making
retraining necessary if she is to enter the work force) and her prolonged
absence from work.
[111]
Mr. Trainor similarly described the effect of barriers to Ms. Harringtons
return to remunerative employment: including chronic pain, functional
limitations, cognitive impairment (specifically memory, concentration and
multi-tasking difficulties) emotional problems and the significant time she has
now been out of the workforce. These lead Mr. Trainor to the conclusion
that Ms. Harrington is not employable in a competitive labour market,
despite the fact that she answered questions well and was presentable at his
interview.
[112]
Mr. Trainor noted that some limiting factors affected Ms. Harringtons
employability before the motor vehicle accident, particularly the limited use
she could make of her dominant right wrist, her urethral stenosis and what
appeared to be a history of irritable bowel problems. He noted, however, that
she was probably capable of qualifying to operate a daycare and that there were
other occupations open to her before the accident. He concluded:
In my opinion, previous to the
subject accident Ms. Harrington was likely employment-disadvantaged on
account of pre-morbid health problems. Operation of a daycare business would
have been a suitable occupation for her even assuming that she did have any or
all of the pre-morbid medical problems that we identified. She also likely had other
pre-morbid employment options in the sales and service sector 2, although she
may have required a sympathetic employer willing to accommodate her need for
frequent washroom breaks and or time off. She presents to this vocational
assessment with very little vocational rehabilitation potential. Indeed I
cannot foresee her working in any occupation, even on a non-competitive basis
with a sympathetic employer.
[113] In
response to the opinion of Mr. Hohmann, referred to below, Mr. Trainor
expressed the view that Ms. Harrington would have to make major
improvements in her physical capacity, her cognitive capacity and her ability
to cope with job stress in order to contemplate any of Mr. Hohmanns suggested
employment options. Mr. Trainor was also of the view that Mr. Hohmann
may have overlooked the significant effect of the plaintiffs now lengthy
period of unemployment and absence from the work force which will pose a
significant obstacle should she seek to return employment.
[114]
Mr. Hohmann, after describing the complex problems that affect the
plaintiff wrote:
From a vocational rehabilitation
perspective, it is difficult to determine employability with such a combination
of symptoms and limitations, particularly when lacking medical and psychiatric
prognoses.
[115] He
therefore looks at a spectrum of outcomes. He concludes that if Ms. Harrington
remains as she presents, she will be employed, if at all, marginally beyond a
supported employment setting.
[116] If her
level of functioning improves, Mr. Hohmann says that she may eventually be
able to work at selective entry-level clerical positions. For that reason he
says it would be prudent to make provision for Ms. Harrington to undergo a
period of avocational counselling and career exploration assistance.
[117] Dr. Hohmann
acknowledged that Ms. Harringtons pre-accident employment barriers did
not make her unemployable in full-time employment. He agreed that given Ms. Harringtons
current medical condition it is hard to think to circumstances in which an
employer would consider hiring her. He feels, however, that Ms. Harrington
has some strengths and there is a potential for future employment that should
not be discounted entirely.
E. Cost
of Care Evidence
[118] The
plaintiff retained Landy, a rehabilitation nurse and life care planner, in June
2009 to prepare a life care plan and a cost of future care analysis. Landy
prepared a report and assessment of Ms. Harringtons needs on the basis of
the expert reports and an interview on assessment of Ms. Harrington
conducted in her home in Abbottsford, British Columbia, on July 26, 2010. In
part the life care plan is based upon Landys own assessment of the plaintiffs
needs, in part it is based upon the opinions expressed in other experts
reports. She indentifies the following future care needs:
a) One-on-one rehabilitation
assistant to support a structured daily program of physical conditioning and
participation in recreational activity, eight hours weekly for 48 weeks per
year for life;
b) Psychological
consultation, in the form of practical, cognitive, behavioural orientation, 48
weeks per year for two years and then 24 in year three and 10 to 12 sessions
annually thereafter. Landy accepts that the intensive therapy should run from
November 2010, when she spoke with Dr. Klassen;
c) Attendance
at an interdisciplinary pain management program;
d) Pharmaceutical
expenses (the actual cost of continuation of the present medication regime);
e) Activities of
daily living expenses including various home aids to facilitate cooking, dressing
and bathing with one arm (many already provided but requiring replacement);
f) Occupational
therapy consultant and rehabilitation case manager to develop a rehabilitation
program, monitor compliance and make appropriate appointments (48 to 60 hours
in year one and 24 hours annually thereafter).
g) Transportation
expenses (replacement of adaptive motor vehicle equipment);
h) An avocational
consultation to assist Ms. Harrington in finding an appropriate volunteer
placement;
i) Interior
home maintenance (10 hours weekly for life at the rate of $30 per hour);
j) Exterior
home maintenance (allowances for lawn maintenance and snow removal; at the rate
of $30-40 per hour);
k) Leisure
and recreation: the cost of a recreation therapist to ensure appropriate
participation in recreational activities, 15 hours per year to find appropriate
equipment and programs (at $70 per hour).
l) The
ongoing cost of an annual pass to the recreational centre; and
m) Financial management advice
(to be addressed by economists).
[119] The
defendants response to Landys recommendations is founded upon the reports of Dr. Reebye,
Joseph Hohmann, Dr. Janke and Andrea Warren (Warren).
[120] Warren is
a registered nurse employed by Classic Caregivers, a company that provides
attendant care services. She said that the standard rate charged by classic
caregivers for such services is $21.75 per hour plus HST, an amount in the
range of $25.00 per hour in total. In cross-examination she acknowledged that
while homemaking assistance can be had for $15 per hour, it is in the interest
of a patient requiring long-term care to pay the significantly higher fee
charged by an agency so as to have continuity of care and not to have to worry
about finding replacements on a permanent or temporary basis. The agency
employer can also ensure that the work is being performed to appropriate
standards. The difference between rates charged by classic caregivers and the
rate used by Landy as the basis for her assessment arises principally from the
fact that Classic Caregivers uses non-union employees, is not accredited and
does not do government work.
F. Evidence
of Economists
[121] The
plaintiff and the defendants have filed reports from economists setting out the
net present value of the future costs of care estimated by Landy and providing
costs of care multipliers to permit departure from Landys estimates. They have
provided the court with multipliers for use in calculating the net present
value of income lost before trial and the net present value of a loss of income
or income earning capacity in the future. The experts, Mr. Robert Carson
(Carson) of Associated Economic Consultants Ltd. and Mr. Douglas
Hildebrand (Hildebrand) of Columbia Pacific Consulting have been most helpful
to the court in describing the significant variables that will affect the
calculation of these potential losses. Most significantly in this case
they are:
·
what category of income earner should be used as an appropriate
measure of the plaintiffs potential income earning capacity as a child care
provider or a daycare centre operator;
·
whether in calculating loss of future income or income earning
capacity the court should discount any prospect of continued employment after
age 65;
·
whether estimates of past and future income earning capacity
should include a contingency to reflect the possibility that the plaintiff will
voluntarily withdraw from the work force or seek only part-time work; and
·
the rate at which the cost of care calculation should reflect the
age-related decline that would have occurred in any event in the plaintiffs
ability to care for her home or engage in other programmes or activities.
[122] The
economic evidence is consistent; while the experts disagree with respect to the
assumptions that should serve as the basis for the assessment of the award,
there is little dispute with respect to methodology. They agree that the net
present value of a stream of funds necessary to pay $1,000 of expenses for the
balance of the plaintiffs normal life expectancy is $20,648. Hildebrand points
out that this figure should not be used to calculate the present value of the
cost of care that is not required, or is not compensable for the balance of the
plaintiffs lifetime. So, for example, a lower multiplier (14.572) should be
used to calculate the present value of a stream of funds to age 65.
[123] Both
experts agree that the net present value of a stream of income of $1,000 per
annum to age 65 with no allowance for the contingency of voluntary withdrawal
from the labour force, unemployment or part time work (the actuarial
multiplier) is 14.973.
[124] Carson
calculates the actuarial multiplier to age 70 to be 17.627.
[125] Hildebrand
says that a more accurate measure of the potential future stream of earnings
takes into account part time work and unemployment (the effect of which reduces
the multiplier to age 65 to 11.798) or part-time work, unemployment and
non-participation in the labour force (the cumulative effect of which reduce
the multiplier to age 65 to 9.829).
G. Evidence with Respect to the PharmaCare
Program
[126] Mr. Mitchel
Moneo (Moneo), the communications head of the pharmaceuticals division of the
Ministry of Health Services testified as witness for the plaintiff in the case.
He did so in response to the suggestion that a deduction should be made from
the award that may be made in this case for pharmaceutical expenses to take
into account the fact that the plaintiff is likely to qualify for assistance
under the PharmaCare program.
[127] Moneo
identified the relevant provincial government policy. He described the manner
in which eligibility for PharmaCare benefits is determined by looking at net
family income. He described the requirement that Canada Revenue Agency
documentation be provided by an applicant to confirm family income. He
described the deductibles applicable and the manner in which they are
calculated in relation to income. He confirmed that it is the government policy
that individuals who require prescription medication as a result of an injury
for which they have a claim arising out of a motor vehicle accident are not
eligible to claim PharmaCare benefits in relation to such expenses. Residents
of the province are not covered for medications directly associated with
negligence in respect of which there is a potential claim for compensation. If
an individual receives compensation for medical expenses, then no payment will
be made by the PharmaCare program.
[128] In cross-examination
it was suggested to Moneo that the program may be poorly enforced and that it
requires individuals to voluntarily report their eligibility for benefits and
that there is a risk that the plaintiff may receive double compensation if she
receives an award for the cost of prescription expenses but does not report the
award to the PharmaCare program. Mr. Moneo agreed with the suggestion that
there may be individuals who do not report their claims or recovery and that
therefore are compensated twice, once by a tortfeasor and once by PharmaCare
for prescription expenses. However, he also identified the clear written policy
guidelines that disentitle the plaintiff to PharmaCare benefits in this case.
APPLICABLE LAW
A. Liability
The Liability of Drivers
[129]
The liability of Sangha is admitted. The liability of Thiels and the
contributory negligence of Ms. Harrington must be addressed in light of
the fact that they both came upon a situation of imminent peril brought about
by the negligence of Sangha.
[130]
The law does not require a prudent man to foresee everything possible
that might happen and is not quick to find fault on the part of a driver who is
confronted with a vehicle that is not obeying a statutory requirement.
Momentary decision or indecision can only be regarded as a failure if the
standard applied is one of instantaneous perfection.
Haase v. Pedro (1979) 21 B.C.L.R.
(2d) 273 (C.A.); Corothers v. Slobodian, [1975] 2 S.C.R. 633; Tucker
v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.); and Buksh v. Franco,
[1995] B.C.J. No. 1331 (S.C.).
The Liability of the Crown
[131]
The claim against the defendants and third parties HMC and the
Provincial Crown is founded upon the duty of care owed by the government to
users of the public highways described in Just v. British Columbia,
[1989] 2 S.C.R. 1228. In that case Cory J., for the majority, after describing
the provinces invitation to motorists to use the highways, held at para. 12:
… it would appear that apart
from some specific exemption, arising from a statutory provision or established
common law principle, a duty of care was owed by the province to those that use
its highways. That duty of care would extend ordinarily to reasonable
maintenance of those roads. The appellant as a user of the highway was certainly
in sufficient proximity to the respondent to come within the purview of that
duty of care. In this case it can be said that it would be eminently reasonable
for the appellant as a user of the highway to expect that it would be
reasonably maintained. For the Department of Highways it would be a readily
foreseeable risk that harm might befall users of a highway if it were not
reasonably maintained.
[132] The Crown
is obliged to establish and implement a system of reasonable maintenance and
is not an insurer of the safety of the roads. Reasonableness must be assessed
in the light of the Crowns obligation to apportion scarce resources to meet
competing demands and with deference to the legislatures policy making
function.
[133]
Addressing the standard of care in Just, the court held, at paras. 33
and 34:
33 … [T]he respondent is responsible not for the
maintenance of a single private road or driveway but for the maintenance of
many hundreds of miles of highway running through difficult mountainous
terrain, all of it to be undertaken within budgetary restraints…. decisions
reached as to budgetary allotment for departments or government agencies will
in the usual course of events be policy decisions that cannot be the basis for
imposing liability in tort even though these political policy decisions will
have an effect upon the frequency of inspections and the manner in which they
may be carried out. All of these factors should be taken into account in
determining whether the system was adopted in bona fide exercise of discretion
and whether within that system the frequency, quality and manner of inspection
were reasonable.
34 To proceed in this way
is fair to both the government agency and the litigant. Once a duty of care
that is not exempted has been established the trial will determine whether the
government agency has met the requisite standard of care. At that stage the system
and manner of inspection may be reviewed. However, the review will be
undertaken bearing in mind the budgetary restraints imposed and the
availability of personnel and equipment to carry out such an inspection.
[134]
The Crowns liability for hazardous road conditions has been periodically
revisited by the Supreme Court of Canada: Brown v. British Columbia
(Minister of Transportation and Highways), [1994] 1 S.C.R. 420, and Swinamer
v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445; Lewis (Guardian
ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145; Mochinski v Trendline
Industries Ltd., [1997] 3 S.C.R. 1176; and Housen v. Nikolaisen,
2002 SCC 33.
[135]
Considering the Crowns obligation to avoid the danger posed by
accumulation of ice on the roads in Brown, Cory J., again writing for
the majority noted:
33 That duty to maintain
would extend to the prevention of injury to users of the road by icy
conditions. However the Department is only responsible for taking reasonable
steps to prevent injury. Ice is a natural hazard of Canadian winters. It can
form quickly and unexpectedly. Although it is an expected hazard it is one that
can never be completely prevented. Any attempt to do so would be prohibitively
expensive. It can be expected that a Department of Highways will develop
policies to cope with the hazards of ice.
[136]
The action was dismissed, the court being of the view that the
maintenance schedule was set by a policy decision that could not be impugned.
41 Such a policy decision
cannot be reviewed on a private law standard of reasonableness. Since no
allegation was made that the decision was not bona fide or was so irrational
that it could not constitute a proper exercise of discretion, it cannot be
attacked.
[137]
In addressing the alleged operational negligence the Court held:
43 …the onus is on the
plaintiff to establish, on a balance of probabilities, that the Department’s
negligence was responsible for the unexplained delay in responding to the
request for sanding. That is to say, it is for the plaintiff to establish that
the Crown was negligent in the manner in which it carried out the operational
aspect of the call out system and of the road maintenance.
[138] In Lewis
the Supreme Court of Canada adopted the following passage of the decision of
Finch J., as he then was, in Tucker v. Asleson, [1991] B.C.J. No. 954,
affd (1993), 78 B.C.L.R. (2d) 173 (C.A.), to the effect that the Crown remains
liable for operational negligence in the maintenance of the roads, despite the
delegation of operations to contractors:
In cases where the legislature has entrusted a certain body
with the power to do something, and that body delegates performance of the work
to a third party, the law requires the body entrusted by the legislature with
the power to discharge the duty of seeing that the work is performed with
reasonable care. The arm of government owes the duty of care in exercising its
powers, whether it does so by means of servants or contractors.
On that view of the law, it is
clear that in this case the Crown cannot escape liability for the negligence of
its contractor’s employee. It is the Minister who is authorized and empowered
by statute to maintain highways. The Minister may delegate the work involved in
doing so, but he may not delegate the duty. That duty accompanies the power,
and not the doing of the work.
[139]
The law in relation to the liability of the Crown for maintenance of the
highways in British Columbia is well summarised in Dagneault v. Hatton (1995),
8 B.C.L.R. (3d) 108 (C.A.). In that case, the court notes that it is the law in
this Province that reasonable maintenance of highways is a statutory duty of
care owed by the Crown to users of the highways. While the Crowns policy
decisions are not subject to judicial scrutiny, errors or omissions in relation
to operational implementation of policies may give rise to civil liability.
[140]
A large share of responsibility for such operational implementation in
British Columbia has been delegated to private contractors under maintenance
contracts. The Ministrys classification of highways and description of
response time to specified road conditions is properly considered to be within
the realm of the Crowns policy-making function. Similarly, a description of
required emergency response time is also within the realm of the Crowns policy
decisions.
The Liability of Contractors
[141]
As Russell J. noted in Nason v. Nunes et al, 2007 BCSC 266 at para. 33:
The standard of care applicable to a contractor responsible
for maintaining the highways was recently set out by the Court of Appeal in Benoit
v. Farrell Estate (2004), 27 B.C.L.R. (4th) 226, 2004 BCCA 348 at para. 39
as follows:
The parties agree that Mainroad’s
duty is coterminous with the Crown’s duty of care to users of public highways
in respect of operational matters. They agree that the decision whether to
apply salt to Highway #4 was an operational decision and that the duty of
Mainroad was to take reasonable care to prevent injury to users of the highway
by icy conditions: Brown v. British Columbia […]. The standard of care
in respect of highway maintenance was more recently described in Houssen v.
Nikolaisen [2002] 2 S.C.R. 235] at ¶ 38, quoting from Partridge v. Rural
Municipality of Langenburg, [1929] 3 W.W.R. 555 at 558-59 (Sask. C.A.):
the road must be kept in such a reasonable state of repair
that those requiring to use it may, exercising ordinary care, travel upon it
with safety. What is a reasonable state of repair is a question of fact,
depending upon all the surrounding circumstances…
[142]
While the contract may inform the standard of care, it is not
determinative. Breach of the contract is not, in itself, proof of negligence
because the Crown may require a contractor to perform services to a higher
standard than the Crown would itself be obliged to discharge. The law does not
impose a higher standard of care upon contractors than the courts would impose
upon the Crown, simply because of the provisions of the contract. The contract may, however, set the upper limit of the standard of
care owed by the public to the contractor. Where the contract sets the
contractors duty of care at an inappropriately low level, residual liability
will rest with the Crown where the contractor has discharged its obligations
but the Crown has not.
Holbrook (Guardian ad litem
of) v. Argo Road Maintenance (1996), 31 C.C.L.T. (2d) 70 (S.C.); Benoit
v. Farrell Estate, 2004 BCCA 348.
[143]
As the Court noted in Nason, at para. 46:
[…] where a court considers
that the maintenance contract provides for what is reasonable in the
circumstances, compliance with the terms of the contract will prima facie
establish that the contractor was not negligent.
B. Damages
General Damages
[144]
The parties have referred me to a broad range of cases in which the
courts have assessed injuries bearing some resemblance to Ms. Harringtons.
Hodgins v. Street, 2009
BCSC 673; Paterson v. Iwasaki, [1991] B.C.J. No. 3021 (S.C.);Turcotte
v. Wells et al. (1997), 69 A.C.W.S. (3d) 466 (S.C.);Coleman v. Ojurovic
(1995), 52 A.C.W.S. (3d) 1018 (S.C.), affd, [1996] B.C.J. No. 1992 (C.A.);
Morrison v. Cormier Vegetation Control Ltd. (1998), 101 A.C.W.S. (3d)
512.
[145] I have
also been referred by the defendants, and have considered, what are said to be
comparable mild traumatic brain injury cases.
Williamson v. Suna, 2009
BCSC 576; Zhang v. Law, 2009 BCSC 991; and Madill v. Sithivong,
2010 BCSC 1848.
[146] In setting
the award for general damages I have looked for comparison to those in which
the injuries may be said to have had a similar functional impact upon the
plaintiff. In my view, the case bearing the greatest similarity to the case at
bar is Paterson v. Iwasaki, [1991] B.C.J. No. 3021 (S.C.). The
plaintiff in that case suffered an injury to the brachial plexus, which
resulted in complete loss of use of the right arm, and a closed head injury
that resulted in some degree of disinhibition and a minor reduction in
intellectual capacity. Non-pecuniary damages were assessed at $140,000 in 1991
(the equivalent of approximately $205,000 in 2011).
Future Income Loss
[147] The
factors that ought to be used to measure the loss or impairment of a capital
asset have been regularly described as:
a) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment;
b) whether the
plaintiff is less marketable or attractive as an employee to potential
employers;
c) whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to her had she not been injured; and
d)
whether the plaintiff is less valuable to herself as person capable of
earning income in a competitive labour market.
Kwei v. Boisclair (1991),
60 B.C.L.R. (2d) 393 (C.A.); Williamson, supra; Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).
[148]
Damages under this head must be assessed and not calculated. The
standard of proof to be applied when evaluating hypothetical events that may
affect an award is simple probability, not the balance of probabilities. In
addressing claims under this head of damages, either on an earnings approach or
a capital asset approach, the court should consider whether there is evidence
of a real and substantial possibility of a future event leading to an income
loss:
Perren v. Lalari, 2010
BCCA 140; and see also Parypa v. Wickware, 1999 BCCA 88, 169 D.L.R.
(4th) 661; Rosvold v. Dunlop, 2001 BCCA 1; Steward v. Berezan, 2007 BCCA
150, 64 B.C.L.R. (4th) 152; Collyer v. Boon, 2008 BCSC 1745; and Madill
v. Sithivong, 2010 BCSC 1848.
[149]
A plaintiffs past earnings are a significant factor that must at law be
considered in assessing a loss of income earning capacity. Past income earning
is but a starting point in the assessment of the loss, but it is a key element.
Vaillancourt v. Molnar,
2002 BCCA 685.
Cost of care
[150]
The criterion to be used in addressing a claim for the cost of care is
whether a reasonably minded person of ample means would be ready to incur the
expense for which an award is sought. When measuring reasonableness, the
expense should not be a squandering of money. Psychological and emotional
factors must be considered. An award for future care costs should compensate
the plaintiff for costs that are reasonable likely to be incurred, on the
medical evidence, to promote the mental and physical health of the plaintiff.
While the courts should consider the medical justification for claims, the test
is not medical necessity.
Travis v. Kwon, 2009 BCSC
63; Rizzolo v. Brett, 2009 BCSC 732; Polovnikoff v. Banks, 2009
BCSC 750.
[151] The
distinction between medical justification and medical necessity is that the
former requires only some evidence that the expense claimed is directly related
to the disability arising out of the accident, and is incurred with a view
toward ameliorating its impact. The latter test, necessity, would require the
court to impose some standard other than reasonableness by asking not whether
the expense is a reasonable one, but rather, whether there is any way in which
it might be avoided. The latter test is inappropriate. It would impose upon the
victim of an accident to be content with a state of affairs other than that
which he or she would have occupied had they not been injured.
Brennan v. Singh (1999), 86
A.C.W.S. (3d) 537 (B.C.S.C.).
[152]
In addressing claims for the cost of future care, as in addressing
claims for loss of income or income earning capacity, the courts should look to
evidence of a real and substantial possibility that the expense will be
incurred. Similarly, this is not a mathematical exercise.
Co v. Watson, 2010 BCSC
950; Mayenburg v. Lu, 2009 BCSC 1308; Courdin v. Meyers, 2005
BCCA 91.
[153]
Measures that provide some solace but are not likely to result in
medical improvement ought to be compensated for under the head of general
damages rather than an expense that is compensable as a cost of future care.
Ho v. Dosanjh, 2010 BCSC
845.
[154]
Care should be exercised in placing weight upon opinions with respect to
costs of care that incorporate the hearsay evidence of other experts.
Mazur v. Lucas, 2010 BCCA
473.
[155]
Loss of homemaking capacity is compensable. In McTavish v.
MacGillivray, 2000 BCCA 164 at para. 63, Huddart J.A. held:
As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is
diminished in part or in whole ought to be compensated for that loss. It
is equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that
of the family members or that they are to be compensated. Their provision of
services evidences the plaintiff’s loss of capacity and provides a basis for
valuing that loss. The loss remains the plaintiff’s loss of economic
capacity.
[156]
In Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.), the Court
held, at p. 183: … housekeeping and other spousal services have
economic value for which a claim by an injured party will lie even where those
services are replaced gratuitously from within the family.
Deductibility of PharmaCare Benefits
[157]
The defendants say the plaintiff should not recover any portion of the
cost of medication she may require, as she is eligible to receive PharmaCare
benefits. They say that to allow a capital sum as part of the award to fund
expenses that will eventually be repaid by a government funded programme will
result in double recovery. In support of that proposition they rely upon cases
that establish that while the principal goal of the tort compensation system is
to ensure that injured individuals are made whole, insofar as possible, by
compensation, a secondary objective of the system is to avoid double recovery.
M.B. v. British Columbia,
2003 SCC 53; Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9; Boren
v. Vancouver Resource Society et al., 2003 BCCA 388.
[158] The short
answer to that argument is that where the benefit in question is not available
to individuals, because they have a remedy against a tortfeasor, where there is
a provision in the plan for subrogation, or where there is an obligation on the
recipient of the benefit to repay the benefit from the proceeds of litigation,
an award will not result in double recovery. The availability of benefits paid
on such terms should not reduce the award.
[159]
As this court noted in MacEachern v. Rennie, 2010 BCSC 625 at para. 422:
Medication costs required as a
result of a motor vehicle accident must be paid for by a motor vehicle insurer,
and in such a case, PharmaCare is the insurer of last resort.
[160] It was the
evidence of Mr. Moneo that the PharmaCare programme is not intended to be
available to persons who have a tort claim for the cost of their medications. Counsel
seeking to have the deduction made from the award was reduced to arguing that
there will be double recovery if the plaintiff recovers an award for the cost
of her medications and conceals the award from PharmaCare or if she squanders
her award and again becomes dependent on the state to pay for her drug expenses.
[161] The award
in this case is made in the expectation that Ms. Harrington will report
the outcome and use the award as intended. The judgment cannot be founded upon
the presumption that the plaintiff will make a fraudulent PharmaCare claim. In
any event, PharmaCare will be aware of this judgment, having made submissions
and having been given standing to address the issue.
[162] There is no
real risk of double recovery in this case and no basis for an award other than
that which is necessary to ensure the plaintiff will be in a position, without
relying upon the state, to pay the cost of the drugs she requires.
ANALYSIS
A. Liability
Thiels
[163] Sangha
claims that Thiels was negligent in not slowing as he approached the accident
scene. He says that Thiels ought to have recognised the road was icy when he
saw Kondolays tractor trailer slide and says that if he had slowed he could
have pulled over onto the shoulder of the road rather than driving into the
ditch when Sanghas vehicle swung across the road in front of him.
[164] In
response to Sanghas allegation of negligence on his part, the defendant Thiels
says that he was driving in a safe and appropriate fashion and that he
experienced no problems keeping his vehicle under control and had no notice of
the hazardous condition until the second he saw the Sangha vehicle crossing the
road in front of him. Thiels says that he is entitled to assume that other
drivers will adhere to the rules of road. He says that he should not be
required to drive perfectly in a crisis and that the party advancing an
allegation that he was negligent bears the onus of establishing that the
accident could have been avoided by leading reliable evidence of time, distance
and speed, without guesswork or conjecture.
[165] As he
approached the accident scene Thiels had no warning that there was a danger
ahead of him. He had driven a considerable distance without any difficulty and
even at the accident scene he did not lose control of his vehicle. He is
criticised for not using chains but he testified that chains are not used on a
highway and particularly where there is bare pavement. I am satisfied on the
evidence of Thiels that he exercised his professional judgment with respect to
an appropriate speed in which he could travel. There is no evidence before me
that Thiels erred in believing that he could keep his vehicle under control at
the speed at which he was travelling. In fact, when he had to, he could put his
truck where he wanted it, going in the ditch.
[166] I am of
the view that putting the vehicle into the ditch was a reasonable response on
Thiels part given the imminent threat that he faced. It cannot be said that he
was wrong in doing so. Even if it could be said that there were other options
available to Thiels (and I do not find that there were any preferable options)
it would be wrong to impose upon him the standard of perfection, faced with
this imminent peril.
[167] Further,
neither the plaintiff nor the defendant Sangha has established any causal link
between any error or omission on the part of Thiels in the accident. There was
no evidence before me that his speed contributed to the problem that he faced
or that if he had been travelling slower that he would not, similarly, have had
to take evasive measures to avoid the Sangha vehicle.
[168]
While Sangha acknowledges that his vehicle crossed the centre line of
the roadway as a result of negligence on his part, Thiels does not. I find on
the evidence that he has discharged the burden upon him to establish that no
negligence on his part caused his vehicle to cross the centre line. He did not
lose control of his vehicle until placed in the position of imminent peril
where he chose a course of action with a view toward avoiding a collision that
led to his trailer swinging across the road.
HMC and the Crown
[169] As against
the highway maintenance company, Sangha acknowledges that the duty of care is
that set out in the contract and says that the company was required to:
a) complete patrols
every four hours;
b) take immediate
and appropriate action during patrols to protect highway users from unsafe
conditions;
c) proactively
apply winter abrasive to minimise the development of slippery surface
conditions; and
d) immediately
deploy resources to restore surface traction within 60 minutes of the detection
or report of hazardous slippery conditions.
[170] It is
alleged that HMC had notice of slippery surface conditions on Highway 97 on
January 16, and it is suggested that condition was not dealt because the Drive
BC website consistently reported the presence of compact snow with slippery sections
on Highway 97 south of Quesnel. There was ample evidence, however, that HMC was
attending to the maintenance of the roads in the interval between January 16
and the accident and Ms. Harringtons accident cannot be said to have
arisen out of a specific condition known to HMC but not addressed.
[171] With
respect to Sanghas allegation that appropriate actions were not taken to
protect highway users from unsafe condition or that winter abrasives were not
appropriately applied, Sangha relies upon the evidence of ice and slippery
conditions at the scene of the accident. Sangha acknowledges that there was
sand at the scene and that it was Maglios evidence that he sanded the area of
the S curve before the accident, but Sangha says it is clear for the
circumstances of this accident that his efforts were inadequate to do what was
required to make the highway safe for users.
[172] In
response, HMC relies upon the evidence of many witnesses that the travelled
surface of the roadway approaching the scene of the accident was bare with snow
along the centre line and shoulders, and the evidence of some abrasive on the
road surface. HMC says that the only evidence of difficulty on the part of
drivers in the S curve on the day of the accident was the evidence of the
drivers of the empty B train trucks which are described as the most unstable
of the vehicles described in the case. Other drivers did not have difficulty driving
through the S curve that morning. Even Corporal Forsyth, who felt road
conditions were poor approaching the scene from the north could control his
vehicle at an appropriate speed.
[173] HMC relies
upon the evidence of Maglio, supported by his records and the records of sand
used. HMC says that there were probably 50 minutes between Maglios last pass
through the S curve and the time of the accident. Photographs taken at the
scene approximately 30-60 minutes after the accident depict a road that has
been ploughed and sanded and they corroborate Maglios evidence of ploughing
and sanding. HMC says that if there was some ice on the road in the vicinity of
the accident that is a natural hazard that could not be prevented and that
given the evidence of adherence to the contractual standards, HMC discharged
its obligation to maintain the roads.
[174] Sangha
appears to be indirectly taking issue with the evidence of Maglio by suggesting
that the physical evidence at the scene is inconsistent with the road having
been sanded on five occasions that morning. There is, in my view sufficient
evidence that the roads were ploughed and sufficient evidence of the presence
of sand on the highway to verify Maglios evidence of the work he did on the
morning of the accident. There was no evidence that the amount or location of
the sand on the road was inconsistent with sand having been applied to an
appropriate standard in the fashion described by Maglio.
[175] No issue
is taken with the reasonableness of the standards established in the contract.
It is not said that the Crown ought to impose greater obligations upon HMC. Nor
is it suggested that HMC owed a duty to the travelling public to perform to a
standard higher than that set out in the contract.
[176] The issue
in the case is not whether the condition of the roadway caused or contributed
to the accident but, rather, whether the road conditions that caused the
accident were a result of the breach of the standard of care. The drivers all
knew that they were travelling in winter conditions and that road conditions
were subject to change without warning and quickly. The standard to be imposed
upon the contractor is not a standard of perfection but, at most, that set out
in its contract. I cannot find in the evidence before me that there was a
breach of the contract or a failure to comply with any of its significant
terms. To the contrary, it appears that HMC maintained the road to a standard
higher than that required by the contract with the Crown. I cannot find that
there was a breach of the duty of care owed to the public by HMC nor is there
evidence that but for the breach of the contract the road would have been in
such a condition that the accident would not have occurred.
[177]
In the case at bar, as in Dagneault and in Brown, the
policy decisions reflected in the maintenance contract adequately recognise the
hazards of winter driving conditions and it cannot be said that the contractor
was negligent in the manner in which it carried out the operational functions
delegated to it.
[178]
I cannot find the Crown liable either directly for breach of a duty owed
to users of the public highways or vicariously, as there is no evidence of an
error or omission on the part of its contractor.
Contributory Negligence
[179] Sangha
says that the plaintiff was at fault for driving too fast and following the
Sangha vehicle so closely that she was unable to take appropriate action to
avoid the collision. He says that Ms. Harrington should have driven around
the Thiels trailer when it swung into her path of travel.
[180] In
response, Ms. Harrington says that she was not obligated to proceed with
more than a reasonable level of caution. She says that if an oncoming driver
crosses over the centre line, the driver with the right of way need only
respond with the level of skill and diligence that should be expected of a
reasonable driver. Like Thiels, Ms. Harrington says that Sangha must
discharge the burden of proof of negligence on her part with compelling
evidence of time, distance and speed and that no such evidence was lead in
support of the claim of contributory negligence.
[181] The
allegation of contributory negligence made against her appears to be founded
solely on the fact that the collision occurred and the evidence that the
plaintiff may have been driving at the same speed as the defendant Sangha. The
inference of speed may be drawn from the close contact over many miles between
the vehicles involved in this collision. It is not necessary in my view for me
to make a finding with respect to the speed at which the plaintiffs vehicle
was travelling immediately before the accident. Ms. Harrington did not
lose control of her vehicle before the collision. Nor was she warned, as was
Sangha, of the approaching danger. Nor was she driving an inherently unstable
vehicle that was known to be difficult to control. Ms. Harringtons
evidence was that she was driving a vehicle with relatively new studded snow
tires. A speed that was safe for her vehicle may have been inherently unsafe
for the Sangha vehicle. The admission of liability on the part of Sangha must
be said to arise from all of the circumstances in this case and may include his
failure to heed the warning that was not available to Ms. Harrington,
leading to a loss of control of his vehicle.
[182] Further,
while Sanghas negligence was causative of the chain of events leading to Ms. Harringtons
injuries, the same cannot be said of Ms. Harringtons actions. As noted,
she did not lose control. There is no evidence that if she was travelling
slower she would have been able to avoid the collision with Thiels trailer while
it sped toward her in her lane of travel. There is no evidence that the speed
at which he was travelling contributed to the accident. The plaintiff argued, that
Ms. Harrington could have swung to the right, seeing the approaching
trailer and that there was some available space on the travelled roadway
through which she might have driven to avoid a collision. That criticism calls
upon Ms. Harrington to exercise fine judgment in the moment of peril. To attempt
that manoeuvre might have risked a loss of control, leading to a more
significant collision. Pulling quickly to the right might have exposed both Ms. Harrington
and her daughter to greater injury. I cannot say that she was negligent in
failing to avoid the collision in this case.
B. DAMAGES
General Damages
[183] There is
no doubt that the plaintiff has been severely and dramatically affected by the
injuries sustained in the January 18, 2007, motor vehicle accident. There is no
doubt with respect to the extent of her physical injuries. There is convincing
evidence that she has suffered a traumatic brain injury. That injury has
affected her cognition and may have reduced her global intelligence. There is
ample evidence from her family and friends that her behaviour has been
significantly affected. She is irritable and disinhibited. Her memory and
concentration are poor. These changes are typical of those experienced by
people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington.
She is affected by chronic pain and headaches. She requires significant
medication to deal with her pain and that has further impacted her emotional
state and her intellectual functioning. By all accounts she is now
unemployable.
[184] Fortunately,
she is still largely independent and capable. As the defendants point out, she
appears, to the casual observer and even to trained professionals on first
encounter, to be someone who is functioning well and behaving appropriately.
She is still capable of enjoying many of the amenities of life and may do so to
a greater extent if she benefits from certain of the chronic pain management
programs recommended to her.
[185] It is
true, as the plaintiff submits, that there is no range of devastating
injuries. All devastating injuries should attract an award of general damages
at the upper limit permissible. I am of the view, however, that while Ms. Harrington
will be seriously affected for the balance of her life by the significant
injury she sustained, her injury cannot properly be described as devastating.
Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is
not limited to minimal participation in the activities of daily living. She is
unlikely to be shunned and the range of relationships open to her should not be
forever limited. She appears, still, to have reasonable insight into her
situation and condition and has in fact formed relationships since her
accident. By suggesting an award that is marginally less than the upper limit,
the plaintiffs counsel implicitly acknowledges that this is not a case where
the rough upper limit of general damages is an appropriate award.
[186] On the
other hand, the defendants, by referring only to the examining experts first
impressions of Ms. Harrington and her appearance in the witness box at
trial, underestimate the dramatic effect of the injury upon her. There is no
reference in the defendants submissions to the common findings of the
neuropsychologists with respect to the nature and extent of the consequences of
the head injury. Nor is there any reference to the testimony of the many
family and friends who testified with respect to the dramatic change in the
plaintiffs behaviour. Taking into account both the very significant limitations
in her physical activities associated with her brachial plexus injury and the
functional impact of her head injury, I am of the view that general damages in this
case should be assessed at $210,000.
Past Income Loss
[187] The
plaintiff advances a claim for past loss of income earning capacity based on
the claim that the plaintiff had the capacity to earn between $25,000 and
$30,000 per year had the motor vehicle accident not occurred. The plaintiff
says that the net claim for past loss of income earning capacity, after
adjustment for the effect of income tax and advances to the plaintiff, is a sum
in the range of $100,000.
[188] The
defendants say that Ms. Harrington had long been unemployed at the time of
the motor vehicle accident and had been unsuccessfully looking for work. They
say that it may have taken until February 2009, more than two years after the
accident, before the plaintiff could find employment and that when she did find
employment she would have been employed at $10 per hour and earned cumulative
income to trial of $30,720. That amount is discounted for income tax to a net
loss of $29,325 from which the defendants would deduct advances, leaving a net
claim of $17,000 for past income loss.
[189] The
parties have agreed that a deduction of the sum of $12,029.76 should be made from
the plaintiffs claim for past income lost as a measure of the advances paid to
the plaintiff.
[190] At the
time of her injury the plaintiff had planned to begin to provide child care
services to friends and neighbours. While there is some doubt with respect to
whether that plan would have succeeded, she was motivated by the termination of
her employment insurance benefits to find some employment. It is true that she
had been unemployed for a long period of time, as suggested by the defendants,
but while she was on employment insurance the motivation to find other work was
not high and she was further affected by the death of her mother and other
emotional circumstances which had significantly resolved before the motor
vehicle accident. Given her long prior history of employment and continuous
earnings in the range of $18,000, with exceptional earnings above that amount
in 2004, I am of the view that the past loss of income should be assessed on
the basis that there is a reasonable prospect that the plaintiff could have
obtained employment that would eventually have paid her an amount in the range
of $18,000 per annum, had her child care not panned out.
[191] Ms. Harringtons
income would likely have been below that level for a period of time while she
attempted to get her daycare facility up and running. I therefore, assess the
plaintiffs past loss of income earning capacity on the basis that as a daycare
operator she might have earned an amount equivalent to that normally earned by
babysitters, nannies and parents helpers: $16,418 in the year from February
2007 to February 2008 and, thereafter to trial, income in the range of $18,000
per annum. The plaintiff would certainly have been affected by both positive
and negative contingencies during this period of time. She might have earned
little as a daycare operator. She might have been unemployed for a period of
time following an attempt to operate a daycare if she was unsuccessful. She
might, as she suggested, have moved to the lower mainland and found work here
in a casino at an income higher than $18,000 per annum. I am of the view that
the negative contingencies, particularly the risk of some lengthy period of
unemployment or difficulty finding work, would marginally have outweighed the
positive contingencies. The amount that I will award for past income loss is,
therefore, marginally less than the sum of $16,500 in 2007 and $18,000 per
annum in subsequent years to trial. I am of the view that a reasonable award
for loss of past income earning capacity is the sum of $62,000 less the agreed
upon advances to the plaintiff.
Loss of Future Income Earning Capacity
[192] The
plaintiff claims that a conservative estimate of Ms. Harringtons future
income earning loss is $25,000 per year to age 65. Using Carsons actuarial
tables the plaintiff calculates the current value of that loss at $374,325. To
this sum the plaintiff would add 10 percent to account for non-wage benefits
and then reduce the claim by 10 percent to account for the contingency of involuntary
non-participation in the work force. The plaintiff claims a future loss of
capacity of $375,000.
[193] The
defendants calculate the plaintiffs loss of income earning capacity using an annual
income of $16,418, the average income for those working full time and full year
as babysitters, nannies and parents helper. Using Carsons multiplier, the
present value of that income stream would amount to $289,400. Discounting that
figure by approximately 39 percent to account for all labour market
contingencies, the defendants reduce the claim for future income earning
capacity further to $176,820. The defendants would have the court then make an
allowance for the prospect of some residual earning capacity, further reducing
the award by 33 percent to $113,900.
[194] With the
exception of the period immediately preceding her injury, when she was on
employment insurance, the plaintiff was continuously employed for many years
prior to 2007. Her average annual income, while employed, was in excess of
$18,000 per annum. It is, in my view, entirely unrealistic to assess the
plaintiffs loss of income earning capacity, as the defendants do, on the basis
that if she had not been injured she would have earned no more than the amount
earned, on average, by babysitters, nannies and parents helpers. Individuals
employed in daycares as daycare owners and operators earn, on average,
substantially more. On the other hand, it is also unrealistic to suggest, as
the plaintiff does, that the starting point for the assessment of her loss of
income earning capacity is the calculation of the net present value of a
lifetime stream of earnings at $25,000 per annum. Bearing in mind inflation to
trial and the one year in which her earnings at the Casino were in the range of
$24,000 per annum, I am of the view that the starting point for the assessment
of future earning capacity is the net present value of a stream of earnings in
the range of $22,000 per annum, including benefits.
[195] I reject
Carsons suggestion that in estimating the net present value of that stream of
earnings, we should exclude from the calculation the discount that arises from
the application of standard non-participation rates. While there is at present
no reason to believe that at the time of her injury the plaintiff was intending
to voluntarily leave the labour force, the future is, of course, unpredictable
and the statistical probability of some absences from the work force should be
included in the calculation use as a rough measurement of the loss.
[196] On the
other hand, I reject Hildebrands suggestion that the calculation of the net
present value of the lifetime stream of earnings should exclude any allowance
for earnings after age 65. The standard calculation of the net present value of
a stream of earnings discounts earnings in each year to reflect the possibility
of early retirement and non-participation in the workforce. Just as the
calculation reflects the significant possibility that the plaintiff might have
retired before age 65, so it should include an allowance for the statistical
probability that the plaintiff would have continued to work after age 65. The
assessment of damages in this case is not based on the assumption that, had she
not been injured, the plaintiff would have been working in an industry or at an
occupation where there is a traditional, standard or compulsory retirement age.
[197] In my view
on the evidence the most accurate picture of Ms. Harringtons loss will be
obtained by using her historic earnings as a basis for the appraisal of the
loss and estimating of her pre-accident potential future earnings net of
part-time work and unemployment. If one begins with an estimate derived from
net annual income then, as Hildebrand acknowledges, it is inappropriate to use
a multiplier that again factors into the present value calculation a negative
contingency that has already been taken into account. On the other hand, the
estimate must, in my view, take into account the possibility that due to
marriage or another relationship, assistance from her children or some
unforeseen event reflected in the statistics, the plaintiff might at some point
have withdrawn from the labour force. Some weight should be given, in this
estimate, to the plaintiffs pre-existing medical problems. It certainly cannot
be said that there was no real and substantial prospect that she would be out
of the labour force at some point during her remaining working life. Given her
circumstances, her need to support herself, her absence of means and the fact
that she is past her child-bearing years, I am not convinced, however, that the
contingency for non-participation should be as high as the statistical average
for all women similarly situated. For that reason, I would use a multiplier
less than the actuarial multiplier of 14.973 but higher than Hildebrands
suggested multipliers that include very significant allowances for part time
work and unemployment. For the purposes of an initial estimate of the loss to
age 65, I would use a multiplier of 12.5.
[198] That
multiplier may understate the loss because it makes no allowance for the
statistical possibility of continued employment after age 65. Given that the
tables used by the experts to calculate the multipliers do make allowances for
the statistical possibility of retirement before age 65 there is, in my view,
no basis for not also taking into account the prospect that a person might work
after age 65. In fact, there is no reason other than the shortage of
statistical evidence referred to by Carson, why the net present value of the
lost stream of earnings should not be calculated over a plaintiffs remaining
lifetime.
[199] The
effect of extending the calculations from age 65 to age 75 is to increase the
actuarial multiplier by approximately 18% from 14.973 to 17.627. Increasing the
multiplier to age 65 of 12.5 by the same ratio results in a multiplier to age
70 of 14.70. I find that the use of that multiplier will result in a fair
estimate of the net present value of the future income loss in this case, as a
starting point to the assessment of a just award.
[200] The net
present value of a stream of earning of $22,000 per year, appropriately
discounted, to age 70 is (14.70 x $22,000): $323,400.
[201] The figure
that I have used as the basis for this calculation takes into account some positive
and negative contingencies. I am of the view, therefore, that it is not
necessary to substantially further adjust this award to account for
contingencies that have not been considered.
[202] The figure
does not include any allowance for the residual prospect that the plaintiff
will be employed in any capacity in the future. The defendants say that there is
a possibility that the plaintiff may be able to earn some income if there is
some improvement in her condition. I must make some allowance for that
contingency if there is a real and substantial possibility that the plaintiff
can earn income from employment. There is on the evidence no doubt that the
plaintiff is currently not competitively employable. There is also no doubt
that there is not going to be any improvement in her ability to use her left
arm or any further recovery from her brain injury. She is likely to continue to
suffer from chronic pain. She is likely to continue to require medication. Even
if her cognitive function can be modestly improved by changes in her
medication, or by pain management, she will continue to face the major
obstacles to employment that affect her now. The evidence of a prospect of
improvement in her condition is speculative and uncertain. Given her physical
limitations alone, which will not improve, I am of the view that there is no
real and substantial prospect of her return to gainful employment. I am
therefore of the view that damages for the plaintiffs loss of income earning
capacity should be assessed at $325,000.
Cost of Future Care
[203] The
plaintiff seeks an award to compensate her for the expenses she is likely to
incur to deal with her disability and her pain and suffering and to address
loss of the amenities of life. She relies upon the opinions of Drs. Bishop,
Anton, Anderson and Ms. Craig in support of the claim to the cost of a
case manager to monitor her over time and to ensure appropriate support
services are in place, the cost of an occupational therapist to oversee
recreational therapists and the cost of a rehabilitation aide to assist with her
rehabilitation and exercise regime. She needs homemaking assistance. Medication
is necessary to address her chronic pain. She seeks cost of psychological
treatment focussing on cognitive behavioural orientation, as recommended by Dr. Bishop.
She seeks to recover the cost of care recommended, in particular, by Dr. Anton
and Landy.
[204] Dr. Anton
says that Ms. Harrington requires assistance with household tasks,
including home maintenance and will require additional home support as she ages.
Landy recommends that she be provided 10 hours of homemaking assistance weekly
for life (at the rate of $30 per hour). It is acknowledged that housekeeping
help may be obtained at lower rates if one is willing to bear the cost, and
incur the effort, of advertising for and hiring replacements as required but
argued that Ms. Harrington should not be required to bear that burden. A
claim for $354,744, the capital sum necessary to generate an income stream
necessary to pay for 10 hours of housekeeping per week for the balance of the
plaintiffs anticipated life, is advanced.
[205] There is
no doubt the plaintiff requires assistance with housework as a result of her
brachial plexus injury. The defendants suggestion that she could make do with
less than 10 hours assistance per week was not borne out on the evidence. The
defendants say $17.50 per hour is a reasonable allowance for the cost of
homemaking services but their own witness acknowledged the advantages of the
use of a service to supply housekeeping at a rate of $25.00 per hour.
[206] The
plaintiff has established a need for assistance arising out of her injury and
that she reasonably requires 10 hours assistance per week. I accept the
submission that she might, in any event, have required some assistance with
housework as she aged but also weigh in the balance the evidence that her
injury will accelerate the need for some assistance she might not otherwise
have required. I conclude that she is entitled to the sum of $195,000 under
this head, approximately the net present value of 10 hours per week at $25.00
per hour ($12,000 per annum) to age 70 (using a multiplier of 16.199).
b. One-on-one
Rehabilitation Assistance
[207] The plaintiff
claims the cost of a one-on-one rehabilitation assistant to support a structured
program of physical conditioning and participation in recreational activity, at
$50.00 per hour for eight hours weekly for 48 weeks per year (an annual expense
of $19,200) for life. This expense is said to be necessary to ensure a
consistent and safe regime of exercise and physical activity.
[208] The
medical witnesses agree that in order to maintain her abilities and to avoid
deterioration of her physical skills, Ms. Harrington should engage in a regular
exercise program. Occasional review of that program by a physiotherapist or
kinesiologist would be helpful. There is disagreement with respect to the
extent to which frequent involvement in ongoing exercise and physiotherapy will
be constructive or intrusive. Dr. Anton disagrees with Dr. Reebyes
view that it is enough to train Ms. Harington to do exercises. He says her
exercise needs are complex and will need ongoing reassessment as those needs
change through her life.
[209] The
evidence supports the claim to an award under this head; the sole question for
determination is what expenditure a reasonably prudent person of means would
make in an attempt to obtain and maintain an optimum result following an injury
of the sort the plaintiff has suffered. I am of the view that the plan set out
in the Landy report (and the Carson calculation of costs) is an overestimate of
the expenses that might reasonably be incurred. First, it calls for supervision
that is intense and unrelenting. It makes no allowance for Ms. Harringtons
obvious intellectual capacity and her ability to manage most of her care. It
makes no allowance for the fact that there may be long periods when Ms. Harrington
can rely upon a routine regime. It takes no account of the fact that as she
ages Ms. Harrington may require more simple and less extensive exercise.
For these reasons I am of the view that a reasonable award for the cost of
rehabilitation assistance is a lump sum of $75,000. This sum would be
sufficient to pay for 8 hours of the assistance of a therapist in planning
exercise every month to age 75, but the award is not founded upon the settled
view that consultation will take place with that frequency. It may be that Ms. Harrington
will see the therapist weekly for a period of time until her regime is then
settled, and then see her less frequently. It may be that no consultation or
advice is required in some months. As noted above, the assessment of such
claims is not intended to be mathematical but is expected to be an
approximation of anticipated expenses.
[210] In making
an award at variance with the recommendations of some of the expert witnesses I
am bearing in mind the caution expressed in Penner v. Insurance Corporation
of British Columbia, 2011 BCCA 135 at para. 13 that a little common
sense should inform claims under this head [costs of future care], however much
they may be recommended by experts in the field.
c. Psychological
and Psychiatric Counselling
[211] I accept
the evidence of Dr. Anderson that the plaintiff will continue to benefit
from psychological consultations and that they should continue at the present
rate until the plaintiff has completed two years of intensive counselling. I
also accept that it is appropriate for her to attend at 24 sessions in the
third year and 6 to 12 sessions of continuing long-term supportive
psychotherapy thereafter. In my view the evidence supports his view that regular
therapy will facilitate involvement in social and recreational activities. Ms. Harrington
will continue to suffer from chronic pain and as a consequence of that and her
disability will likely be affected by depression that will vary in severity
over time. I am satisfied that she will periodically require psychological or
psychiatric counselling when her symptoms are significant. Dr. Janke acknowledges
that Ms. Harrington may require anti-depressants indefinitely. Her
medication and compliance with therapy will have to be assessed on an ongoing
basis.
[212] Ms. Harrington
has established a claim for the costs of therapy of $15,750 in the first two
tears of treatment; $3,437 in year three; and $33,471 over the balance of her
lifetime. From the total of these amounts ($52,658) the parties will make an
adjustment to account for payment of any portion of the treatment that had been
completed between November 2010, when such therapy was initiated, and the date
of trial. They will have leave to speak to the appropriate adjustment if that
cannot be agreed to and incorporated by consent in the judgment.
d. Occupational
Rehabilitation
[213] The
Plaintiff seeks an award for the cost of an occupational therapy consultant and
rehabilitation case manager to develop a rehabilitation program, monitor
compliance and make appropriate appointments ($5,280 to $6,600 for 48 to 60
hours at $110 per hour in year one; and $2,640 annually for 24 hours per year
thereafter). The current Occupational Therapist, Maryanne Noble, also serves as
a rehabilitation case manager. This person should oversee the rehabilitation
program and also consult with the physicians, the psychologist and the psychiatrist
to ensure that treatment plans are co-ordinated and to ensure compliance with
prescribed therapies. She would also supervise the provision of services such
as housekeeping and exercise planning.
[214] Dr. Anton
says that depression is likely to affect Ms. Harringtons ability to make
good decisions on her own behalf and she will need assistance of an
occupational therapist and case manager (he says that an occupational therapist
may be able to fill the case manager role). The defendants say that the
plaintiffs claim for ongoing occupational therapy intervention on a regular
and continuous basis for the remainder for life is not supported by the medical
evidence. Dr. Reebye, agrees that occupational therapy consultation is
appropriate but says that such therapy should be tailored to focus on specific
attainable goals and is not an ongoing, lifetime requirement. The defendants
would allow for 35 sessions with an occupational therapist and an annual
check-up to age 80.
[215] Given the
nature and extent of the plaintiffs ongoing needs, including housekeeping,
physical therapy, exercise and psychological counselling I find that the claim
for 24 hours of occupational therapy and case management annually is not unreasonable.
$57,770 is, in my view, a reasonable allowance for the expense of that
assistance.
[216] The
parties agree that Ms. Harrington should attend at an interdisciplinary
pain management program on one occasion. There is no issue that this expense is
medically justified and reasonable. It amounts to $12,795
[217] The
Plaintiff seeks an award for the cost of various home aids to facilitate
cooking, dressing and bathing with one arm, many of which have already been provided
to her but require periodic replacement. Dr. Reebye says that Landys recommendations
for activities of daily living are appropriate and adequate. These costs are
allowed at the amounts set out in Table 1 of Carsons Report of November 19,
2010. Account will have to be taken of payment of any portion of the cost of
items already purchased for the plaintiff by or on behalf of the defendants.
The parties will have leave to speak to the appropriate adjustment if that
cannot be agreed to and incorporated by consent in the judgment.
[218] The
plaintiff also seeks an award for the cost of replacement of adaptive motor
vehicle equipment already provided to her. There is no issue that this expense
is medically justified and reasonable. Transportation costs are also allowed at
the amounts set out in Table 1 of Carsons Report of November 19, 2010, with
appropriate adjustment for payment of any portion of transportation costs by or
on behalf of the defendants. The parties will also have leave to speak to the
appropriate adjustment if that cannot be agreed to and incorporated by consent
in the judgment.
[219] The
plaintiff seeks an award for the cost of retaining an avocational consultant to
assist her in finding an appropriate volunteer placement. Dr. Reebye also
agrees that the plaintiff should seek some avocational advice, but I see no
reason why the occupational consultant cannot fill this role. In any event this
expense should properly be regarded, in my view, as a cost incurred to improve
the plaintiffs enjoyment of the amenities of life, for which she is
compensated by the award of general damages.
[220] The
plaintiff seeks an award for the potential cost of exterior home maintenance that
she may be unable to perform. This is an expense that she is not now incurring
and is an expense that she can, for the most part, avoid by judicious selection
of accommodation. There was no evidence she performed exterior home maintenance
of any sort before her injury.
j. Leisure and
Recreational Therapy
[221] The plaintiff
seeks an award for the cost of a recreation therapist to ensure appropriate
participation in recreational activities. There is a fine distinction between
the claim for this advice and the claims made for the services of an
occupational therapist and case manager and the services of a rehabilitation
assistant. Exercising the care described in Cathro v. Davis, 2008 BCSC
1645, and bearing in mind the award made for occupational consulting and a
recreation aide, I find the plaintiffs exercise needs are not so complicated
or extensive that the further services of a recreation therapist would be
reasonably incurred.
[222] A claim
for $130,000 is advanced for the cost of medications the plaintiff is likely to
require on an ongoing basis. The defendants would reduce the claim for
pharmaceuticals by eliminating the claim for certain medication (Paxil) which
accounts for $11,571 of the claim, and which they say is not required or used.
The defendants seek, further, to deduct from the claim for pharmaceuticals the
support that the plaintiff may be entitled to receive from the Pharmacare
program.
[223] For
reasons set out above, in addressing this claim I must ignore the fact that the
plaintiff might be entitled to recover medication costs from the PharmaCare
program if she is not compensated for such costs in this award.
[224] She is
entitled to an award of $118,000 as the measure of the expenses she will
probably incur for medications to treat her chronic pain.
In Trust Claim
[225] The
plaintiff claims the sum of $10,000 as compensation for the provision of
homemaking services to her by family and friends. The Plaintiff says there need
be no precise calculation of the value of the award and that the court should
make a global award but says that some justification for the award may be found
in the evidence that unskilled housework is worth $15 per hour and that, at
this rate an in trust award of $10,000 would only account for 83 days of work. The
defendants say that only a modest award has been proven by the plaintiff and
says that $3,000 would be a reasonable award. In my view there has been much
assistance offered to the plaintiff but much of it is not compensible as it is
simply the assistance that one might expect to receive from friends and family.
The plaintiff did require intensive assistance in late January and through
February and March 2007 prior to the provision of services to her by or on
behalf of the defendants. In my view a reasonable award for that portion of the
assistance she was offered following the accident that is properly compensible
is $6,000.
Tax Gross-Up and Management Fee
[226] It has
been agree that the issues of tax gross-up and management fees and the issue of
a structured judgment should be deferred until after judgment.
Special Damages
[227] Parties
have agreed that the plaintiffs claim for special damages for out of pocket
expenses incurred in association with her injury and treatment amount to
$3,000.
SUMMARY OF AWARD
[228] In
summary, the Plaintiff shall have judgment against the defendants Hardip Singh
Sangha, G & R Contracting Ltd., and Canadian Western Trust Company, jointly
and severally for the following amounts:
Damages |
|
| Amount |
General Damages |
|
| 210,000 |
Past Income Loss | 62,000 | less 12,029.76 | 47,970 |
Future Income Loss |
|
| 325,000 |
Cost of Future Care |
|
|
|
| Housekeeping | 194,000 |
|
| Rehabilitation Assistance | 75,000 |
|
| Psychological Counselling | 52,658 (less adjustment) |
|
| Occupational Consulting | 57,770 |
|
| Pain Management | 12,795 |
|
| Aids for Daily Living | 23,641 (less adjustment) |
|
| Transportation | 12,401 (less adjustment) |
|
| Medications | 118,000 |
|
| Total |
| 488,495* |
Special Damages |
|
| 3,000 |
In Trust Claim |
|
| 6,000 |
TOTAL |
|
| 1,080,465* |
*(less adjustments)
[229] The claim
against the remainder of the Defendants and all third party claims are
dismissed.
[230]
The parties will have leave to address the appropriate adjustments for
expenses paid and advances to the plaintiff, a tax gross up on the award, the adjustment
that should be made to the award for past income loss to arrive at the net
award called for by ss. 95 and 98 of the Insurance (Vehicle) Act,
R.S.B.C. 1996, c. 231, the claim to a management fee, interest on the components
of the award, whether there should be an order that the award for pecuniary
damages be paid periodically and, if so, the terms of such payments, and costs,
if these matters cannot be resolved by consent.
Willcock
J.