IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110803

Docket: 75673

Registry:
Kelowna

Between:

Kevin Thomas

Plaintiff

And

Robert D. Thompson
and Joshua Thompson

Defendants

Before:
The Honourable Mr. Justice Brooke

Supplementary Reasons for Judgment

[1]            
The plaintiff in this personal injury action represented himself at
trial, and reasons were given on September 16, 2010. No order has yet been
entered, in part because of my invitation to the plaintiff and counsel for the
defendants to address the issue of costs of future medication. No present-value
calculation had been tendered by the plaintiff (who, of course, has the burden
of proof).

[2]            
At the request of the defendants, further submissions were made on
October 28, 2010, and judgment was reserved.

[3]            
The plaintiff called Dr. Latimer, a psychiatrist, who had treated
him and prescribed a specific medication for neuropathic pain called Lyrica in
October 2006, and considered that the plaintiff might need to continue this
medication for his lifetime. In cross-examination he was asked whether
alternative (and cheaper) medication might be equally efficacious, and
responded that it was not; that Lyrica had a significant qualitative advantage.
The cost of Lyrica at the time of trial was $7,355.76 per annum. Counsel for
the defendants obtained a calculation from Mr. Robert Carson dated October
6, 2010. He concluded that the present value of $7,355.76 over the plaintiff’s
life expectancy was $147,939. This was evidence that the plaintiff should have
provided in asserting his claim at the earlier trial. (Mr. Thomas had
claimed as a cost of future care for Lyrica $235,361.28.)

[4]            
The defendants say that rather than ordering the payment to the
plaintiff of the present value of Lyrica as a cost of future care, the court
must apply the provisions of s. 83(5) of the Insurance (Motor Vehicle)
Act. This section in its entirety says this:

83 (1) In this section and in
section 84, "benefits" means benefits

(a) within the definition of
section 1.1, or

(b) that are similar to those
within the definition of section 1.1, provided under vehicle insurance wherever
issued and in effect,

but does not include a payment made
pursuant to third party liability insurance coverage.

(2) A person who has a claim for
damages and who receives or is entitled to receive benefits respecting the loss
on which the claim is based, is deemed to have released the claim to the extent
of the benefits.

(3) Nothing in this section
precludes the insurer from demanding from the person referred to in subsection
(2), as a condition precedent to payment, a release to the extent of the
payment.

(4) In an action in respect of
bodily injury or death caused by a vehicle or the use or operation of a
vehicle, the amount of benefits paid, or to which the person referred to in
subsection (2) is or would have been entitled, must not be referred to or
disclosed to the court or jury until the court has assessed the award of
damages.

(5) After assessing the award of damages under subsection
(4), the amount of benefits referred to in that subsection must be disclosed to
the court, and taken into account, or, if the amount of benefits has not been
ascertained, the court must estimate it and take the estimate into account, and
the person referred to in subsection (2) is entitled to enter judgment for the
balance only.

[5]            
I am satisfied that the Part 7 benefits available to the plaintiff
exceeded the present value of those benefits and judgment may not be entered
for them.

[6]            
The defendants also seek a deduction of the non-pecuniary damages of
$10,000 paid to the plaintiff in respect of a motor vehicle accident in 2002,
the effects of which I found to continue on the date of the second motor
vehicle accident which was before me. In paragraph 23 of the Reasons for
Judgment I said this:

While the plaintiff argued that
he had fully recovered from the consequences of the injuries sustained in the
motor vehicle accident of December 28, 2002, the facts do not support that
conclusion. I find that Mr. Thomas was continuing to be treated for a mood
disorder, insomnia, and pain related to the accident of 2002 at the time that
he was involved in the second accident in 2005. The complaints with regard to
the first accident and with regard to the second accident are remarkably
similar and, in my view, not divisible.

[7]            
I did not accept the evidence of the plaintiff that he had made a full
recovery from the 2002 accident. In assessing non-pecuniary damages for the
effects of the accident of June 27, 2005, I took the plaintiff in the position
he then occupied; that is, as continuing to make recovery from the earlier
injuries. I did not treat him as if he were whole at the time of the second
accident. Thus, I reject the submission that the settlement funds paid to the
plaintiff following the first accident be deducted from the award for the
damages sustained in the second accident. There is no double recovery.

[8]            
I refer to the decision of the British Columbia Court of Appeal in Bradley
v. Groves, 2010 BCCA 361 where the plaintiff had been injured in a second
accident which aggravated injuries sustained in the first accident. At
paragraph 38 the Court said this:

Without a finding of divisibility,
the appellant’s arguments cannot succeed. The trial judge found as a fact that
the plaintiff’s injuries from the first accident and the second accident were
indivisible. The defendant and the other motorist both caused and contributed
to the plaintiff’s soft tissue injuries. He also found those injuries were not
separable. There is no basis on which to interfere with these findings of fact.
Flowing from them is the conclusion of joint and several liability.

[9]            
On all of the evidence before me, I found that the plaintiff’s injuries
in the first and second accident were indivisible.

[10]        
While I accept that I have discretion to reopen the trial, I am not
satisfied that it is right and just to do so.

[11]        
In the result there must be deducted from the award to the plaintiff for
the cost of Lyrica as a cost of future care (s. 83 Insurance (Motor
Vehicle) Act), but that is not a deduction against non-pecuniary damages
which will stand at $75,000.

[12]        
The defendants shall have the costs of this application in accordance
with Scale B.

“T.R. Brooke J.”
The Honourable Mr. Justice Brooke