IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110815

Docket: 04-2102

Registry:
Victoria

Between:

Selina
Meghji

Plaintiff

And:

Jamin
Lee and Her Majesty the Queen in Right of
The Province of British Columbia
(Provincial Ministry of Transportation and Highways)

Defendants

Before:
The Honourable Mr. Justice Johnston

Reasons for Judgment

TABLE
OF CONTENTS

.

INTRODUCTION.. 3

ISSUES.. 4

Liability of the
Defendant Lee. 4

Liability of Her
Majesty the Queen in Right of the Province of British Columbia (Ministry of
Transportation and Highways). 9

Intersection
Design and Design Standards. 9

Analysis. 19

Contributory
Negligence of the Plaintiff. 26

Injuries and
Treatment. 32

Lay Witness
Evidence of Ms. Meghji Before and After the Accident. 34

Medical and
Psychological Opinions. 47

SPECIAL DAMAGES.. 60

COST OF FUTURE CARE.. 64

Assistive Devices. 67

Safety Aids and
Appliances. 68

Position/Splinting
Aids. 68

Mattress and
Pillow.. 68

Support Footwear
and Orthotics. 69

Bathroom Safety
Aids. 69

Rehabilitation
Aids. 69

Medications. 70

Miscellaneous
Aids and Items. 71

Physiotherapy and
Exercise Programme. 71

Counselling. 71

Home Support. 72

INCOME LOSS: ACCIDENT TO DATE OF
JUDGMENT.. 73

LOSS OF FUTURE EARNINGS.. 78

Ms. Meghji’s
Earning Capacity Prior to Accident. 79

Anticipated
Future Earnings. 82

Assessment of
Loss of Earning Capacity. 82

SUMMARY.. 83

Appendix A: Calculation of Cost of
Future Care Award (from June 1, 2009): 85

INTRODUCTION

[1]          
On January 22, 2003, a vehicle operated by the defendant, Jamin Lee,
struck the plaintiff, Selina Meghji, while she was walking across the
intersection of Blanshard Street and Cloverdale Avenue in Victoria, B.C.

[2]          
Blanshard Street runs generally north-south and has three lanes of
travel plus a dedicated left-turn lane in each direction. Cloverdale Avenue
runs generally east-west and has two lanes of travel plus a dedicated left-turn
lane in each direction and is lit by overhead lighting.

[3]          
The intersection is in an area where residential use changes to
commercial use. To the east of Blanshard Street, along Cloverdale Avenue, there
is a short block of commercial use which then changes to residential use. To
the west of Blanshard Street, along Cloverdale, the use is entirely commercial for
several blocks.

[4]          
This pattern continues to the south of the intersection, along Blanshard
Street toward downtown Victoria. To the north of the Cloverdale intersection,
usage is generally commercial along Blanshard Street for several long blocks,
until Blanshard Street becomes Highway 17, leading to the Swartz Bay ferry
terminal.

[5]          
At about 7:15 a.m. on January 22, 2003, Ms. Meghji was walking across
Blanshard Street in an easterly direction, while at the same time Mr. Lee
was turning left from Cloverdale Avenue to go south on Blanshard Street. Mr.
Lee did not see Ms. Meghji until the instant before he struck her. Why Mr.
Lee did not see Ms. Meghji until he did is at the core of the liability
issues among the parties. Ms. Meghji alleges that Mr. Lee did not see her
in time to avoid striking her because he failed to take reasonable care for her
safety and because the overhead lighting for which the Ministry of
Transportation and Highways is responsible was negligently designed or
installed.

[6]          
Each of the defendants, while denying their own culpability, points to
the co-defendant as the responsible party and both defendants join together to
allege that Ms. Meghji’s negligence in crossing Blanshard Street against a
“Don’t Walk” signal while wearing dark clothing caused or contributed to her
injuries.

[7]          
Finally, although it is conceded that Ms. Meghji was injured in the
collision, the nature and extent and residual effects of her injuries are in
issue.

ISSUES

[8]          
The issues therefore are:

 1.         Liability,
if any, of the defendants Lee and the Ministry of Transportation and Highways;

 2.         Contributory
negligence, if any, of the plaintiff Ms. Meghji;

 3.         Nature,
extent and residual effects of Ms. Meghji’s injuries; and

 4.         Damages
flowing from injuries for which the defendant(s) are liable.

Liability
of the Defendant Lee

[9]          
In January 2003, Ms. Meghji worked for Shaw Cable. Shaw’s offices were near
the southeast corner of Blanshard and Cloverdale. Ms. Meghji lived in James
Bay, in the southern part of Victoria, so she took a bus along Douglas Street
and got off just north of the intersection of Douglas Street and Cloverdale
Avenue. She walked eastward for a block along Cloverdale Avenue, across
Cloverdale at its intersection with Oak Street, then proceeded another block
eastward along Cloverdale Avenue to Blanshard Street.

[10]       
At the corner of Blanshard and Cloverdale, there is a right-turn lane
that a pedestrian has to cross to reach a small triangular island before
beginning to cross Blanshard Street. On that island, which counsel referred to
as a “pork chop” because of its shape, there is a pole which has, among other
things, a button to activate the pedestrian “Walk / Don’t Walk” signal to cross
Blanshard Street.

[11]       
The traffic signals at Blanshard and Cloverdale default to green for
Blanshard Street north and south if there is no vehicle or pedestrian traffic
east or westbound on Cloverdale Avenue. Vehicle traffic on Cloverdale activates
a demand for a change in signals at the intersection through detector loops
buried in the roadway.

[12]       
Pedestrian movement is controlled by “Walk / Don’t Walk” signals that
are activated by the button at each corner of the intersection. If the button
is not pushed, “Don’t Walk” is exhibited in all directions at all times. If a
button is pushed by a pedestrian, the “Walk” signal will activate but only when
the traffic light sequence for the intersection changes.

[13]       
Once a “Walk” signal is exhibited, it remains visible as a white human silhouette
for seven seconds before beginning to flash a “Don’t Walk” signal for twenty-one
seconds. The “Walk” signal then becomes a solid red “Don’t Walk” signal for the
rest of its cycle.

[14]       
It was raining on the morning of January 22, 2003, and at 7:15 am, the time
when Ms. Meghji arrived at the intersection, it was full dark. Lighting at
the intersection was provided by overhead lights at the southeast and northwest
corners. Additionally, there were light standards along both Blanshard Street and
Cloverdale Avenue on both sides of the intersection. There were also overhead
light standards in nearby commercial developments, including the parking lot of
a Future Shop outlet on the southwest corner of Blanshard and Cloverdale.

[15]       
When Ms. Meghji arrived at the intersection, she was wearing generally
dark clothing and was carrying a bright yellow lunch bag. She testified that
she pushed the button to demand a “Walk” signal and waited for some time for
the traffic lights to run through their sequence. She said that when the signal
opposite her showed “Walk” for pedestrians proceeding in her direction, she
stepped into the marked crosswalk and began to cross the intersection. She got
fully across two southbound lanes and into the third southbound lane when Mr.
Lee struck her near the completion of his left turn onto Blanshard Street from
Cloverdale Avenue.

[16]       
Mr. Lee has had some physical difficulties that bear on the question of his
liability. When he was 18 years old, Mr. Lee had cataract surgery to his left
eye. The surgery left him with vision somewhat blurred in his left eye, which
could not be completely corrected by eyeglasses. Mr. Lee also had a partial
cataract in his right eye. Overall, the combined effects of the cataract
condition and the results of his cataract surgery make Mr. Lee more sensitive
to glare to the point that direct glare causes him to see double.

[17]       
At the time of the accident, Mr. Lee was being treated for psychological
or psychiatric conditions for which he was prescribed Risperdal and Prozac. He
testified that Risperdal helped him sleep and that Prozac caused drowsiness or
nausea. Mr. Lee was somewhat contradictory as to whether he had taken his daily
dosage of Risperdal and Prozac on the day of the accident. At first he said he
had not taken either of the drugs for 24 hours before the accident, then said
he was not sure, then agreed that he had taken his medication that morning.

[18]       
On the morning of January 22, 2003, Mr. Lee had a “few tokes” of
marijuana which he said caused him to feel elated, improved his mood, and
helped with the nausea that his prescription medications caused. Mr. Lee said
that he had been feeling some life stresses in the days before the accident.

[19]       
Mr. Lee was in something of a rush to get to work on the morning of the
accident because he wanted to complete a carpentry project that had engaged his
interest before the grocery store in which he worked opened for business.

[20]       
At the time of the accident, Mr. Lee was withdrawing from the effects of
using crystal methamphetamine.

[21]       
Mr. Lee described the weather on the morning of the accident as rainy
and drizzling. Ms. Meghji agreed that it was drizzling at the time of the
accident. Mr. Lee said it was dark at the time of the accident, he had his
headlights on, and his windshield wipers were set at medium.

[22]       
Mr. Lee’s vehicle had a leak in the seal at the top of the windshield
that caused water to accumulate on the inside of his windshield and
condensation to form on the inside of the windshield and on other windows of
the vehicle.

[23]       
As Mr. Lee approached the intersection of Cloverdale and Blanshard, the
glare of other lights caused him to feel a tinge of pain in his eyes.

[24]       
As Mr. Lee approached the intersection, the light facing him was green.
It is not clear whether he stopped in the intersection, or simply slowed down,
to allow some traffic eastbound on Cloverdale to go through.

[25]       
Mr. Lee said that as he entered the intersection, he was blinded
momentarily by brightness. He looked to his left in the direction in which he
was turning, saw that the “Walk / Don’t Walk” signal was red, he says, and
commenced his turn. He did not believe that his turn signal was on.

[26]       
Mr. Lee was partially blinded when he looked in the direction of the
crosswalk towards which he was turning. He heard someone say, “Oh my God,”
looked, saw Ms. Meghji, and slammed on his brakes and turned his vehicle to the
right. Mr. Lee did not see Ms. Meghji until just before impact, although
he testified that when he looked he realized a person was running across the
intersection.

[27]       
Mr. Lee’s ability to see outside his vehicle was affected by the
condensation problem on his windshield and windows. This was compounded by the
effect on his vision of the glare caused by the lighting outside his vehicle,
perhaps exacerbated by the wet pavement.

[28]       
Ms. Meghji was in the marked crosswalk when Mr. Lee struck her.

[29]       
Sergeant Wright was one of the police officers who responded to the
accident report. Sergeant Wright, who had a great deal of experience dealing
with traffic accidents and with people whose ability to operate a motor vehicle
might be impaired, did not see anything in Mr. Lee that caused him any concern
that Mr. Lee was impaired by alcohol or a drug or that Mr. Lee ought not to be
allowed to drive his vehicle away from the scene of the accident.

[30]       
I find that Mr. Lee owed a duty to Ms. Meghji to keep a proper lookout
while driving his vehicle, and to take reasonable care for other persons who
were, or might reasonably be expected to be on the road (Hmaied v. Wilkinson,
2010 BCSC 1074; Nelson (Guardian ad litem of) v. Shinske (1991), 62
B.C.L.R. (2d) 302 (S.C.); Karran v. Anderson, 2009 BCSC 1105). I
conclude that this duty existed whether or not the signal showed “Don’t Walk”
when Ms. Meghji started into the crosswalk. Also in support of this conclusion
is the language of s. 181 of the Motor Vehicle Act, R.S.B.C. 1996, c.
318:

181.     Despite sections 178 [Repealed], 179 [Right of way
between vehicle and pedestrian] and 180 [Crossing at other than a crosswalk], a
driver of a vehicle must

 (a)        exercise due care
to avoid colliding with a pedestrian who is on the highway[.]

[31]       
Mr. Lee’s ability to drive might not have been impaired to the extent to
attract Sgt. Wright’s attention under either the Criminal Code, R.S.C.
1985, c. C-46, or the Motor Vehicle Act, but the effects of the
drugs in his system were nevertheless a contributing factor in the accident. I
find that Mr. Lee breached the duty he owed to Ms. Meghji when he turned his
vehicle to the left, with his vision affected by his cataract and the residual
effects of his cataract surgery, including the effects of glare from overhead
and reflected lights, and with his ability to see outside his car reduced by
the condensation and moisture on the inside of the windows. These circumstances
acted together with the effects of the drugs, both prescription and otherwise,
to constitute Mr. Lee’s breach of the duty he owed Ms. Meghji.

Liability of Her
Majesty the Queen in Right of the Province of British Columbia (Ministry of Transportation
and Highways)

  Intersection Design and Design Standards

[32]       
The plaintiff’s allegations of negligence against the Ministry of
Transportation and Highways, in which Mr. Lee joins, arise out of the number
and location of overhead lighting sources at the intersection of Blanshard
Street and Cloverdale Avenue. This intersection was created in 1978 when
Blanshard Street was substantially widened and connected to Highway 17, which
runs to the Swartz Bay ferry terminal, north of Victoria.

[33]       
As designed in 1978, the intersection was comprised of Blanshard Street
running more or less north-south with three lanes in each direction, plus
left-turn and right-turn lanes. Cloverdale Avenue was one lane in each
direction, east and westbound, with a left-turn lane in each direction. The new
intersection was controlled by electric traffic signals.

[34]       
Design and construction of the new intersection fell under the
jurisdiction of the Ministry of Transportation and Highways. While the Ministry
has changed names from time to time the parties have agreed to refer to the
Ministry, in whatever name it held, as the Ministry of Transportation and
Highways, or MoTH.

[35]       
As built in 1978, the intersection had overhead luminaires at the
northwest corner and at the southeast corner. These luminaires were each 250 watt
sodium fixtures and hung about 35 feet above the pavement surface over
Cloverdale Avenue, not Blanshard Street. Nothing turns on the wattage.

[36]       
The plaintiff alleges that there ought to have been four luminaires, not
two, at the intersection, one on each corner, and that, if only two were to be
installed, they should have been on the opposite corners, that is, northeast
and southwest, rather than as placed by MoTH.

[37]       
The plaintiff’s next argument is that MoTH had an opportunity to rectify
its mistakes in 1983. That is when Cloverdale Avenue was widened from one lane
to two lanes in each direction, with dedicated left-turn and right-turn lanes.
The plaintiff says MoTH was negligent in failing to switch the location of the luminaires
to the northeast/southwest corners, or to add two more luminaires so as to
place a luminaire on each of the four corners in the intersection.

[38]       
Finally, the plaintiff alleges that MoTH negligently failed to take other
opportunities afforded to it in during work on the intersection in 1996 and
2001 to rectify the problems created in the original design and perpetuated in
the 1983 reconfiguration.

[39]       
The plaintiff argues that the number of luminaires and the results of
their placement run contrary to standards that the plaintiff alleges applied to
MoTH at relevant times. These standards are set out in a document entitled American
National Standard Practice for Roadway Lighting, approved July 11, 1972, by
the American National Standards Institute, sponsored by the Illuminating
Engineering Society of North America. They have been referred to both at trial
and in roadway lighting design circles as RP-8 (1972). The extent to which MoTH
was or should be bound by these standards was very much in issue at the trial.

[40]       
The plaintiff called Mr. Lisman, who was educated as a civil engineer
and in 1974 joined MoTH as its first highway safety engineer. Mr. Lisman became
the director of highway engineering in 1989 and retired from MoTH to go into
private practice in 1993.

[41]       
Mr. Lisman testified that RP-8 (1972) was accepted by MoTH in 1977-1978
when the Blanshard Street-Cloverdale Avenue intersection was designed and built.
It appears, however, that Mr. Lisman had no need to directly consult RP‑8
(1972) while he was employed by MoTH as matters concerning electrical
engineering were not his area of competence. When Mr. Lisman became the
director of highway engineering in 1989, at which time electrical engineering
functions that involved traffic engineering would fall under his supervision,
he relied on the electrical engineering staff and, it would appear, simply
assumed they in turn were guided by RP‑8 (1972), or its subsequent
revisions.

[42]       
Mr. Lohr is the person who actually designed the electrical lighting at
the intersection of Blanshard Street and Cloverdale Avenue in 1977. Mr. Lohr graduated
from a two year program as an electrical technologist at the British Columbia
Institute of Technology. Mr. Lohr was employed with MoTH from 1972 to 1979,
beginning as an engineering aide and later becoming an engineering assistant.
When he began, he was the junior of two people in the department reporting to
Mr. Ferguson, a senior electrical technician. At that time, the office of
the electrical engineer was vacant but was soon filled by a Mr. Baggett.

[43]       
Mr. Lohr’s function was to draft a preliminary layout of lighting in
pencil, which he would present to Mr. Ferguson. The two would discuss Mr.
Lohr’s draft, and when they had finished, Mr. Lohr’s design, with any changes resulting
from the consultation with Mr. Ferguson, would go to the drafting department
for final plans to be prepared and submitted to Mr. Baggett for engineering
approval.

[44]       
Mr. Lohr testified that, while he worked at MoTH, he does not recall
there being any manual other than the Canadian Electrical Code. He was not
aware of RP‑8 (1972); it was not discussed in his presence.

[45]       
When Mr. Lohr left MoTH, Mr. Casey was hired to replace him. Mr. Casey,
who has similar qualifications to Mr. Lohr, was aware that there was a copy of
RP‑8 (1972) at MoTH. He said that it was not a document that he routinely
consulted, but it was something that he would refer to if he had a difficult
problem.

[46]       
The standards set out in RP‑8 (1972) include:

 1.         Lux,
which is defined as the amount of light available from all sources;

 2.         Uniformity
ratio, which is the ratio between the average lighting values within an area
such as an intersection, to the minimum lighting values within that same area.

 3.         An
appendix recommends the number of overhead lighting luminaires at different
types of intersection.

[47]       
Mr. Lisman, who was the strongest proponent of RP‑8 (1972) as a
standard to which MoTH should be held, put it no higher in his evidence than
that he understood RP‑8 (1972) was being used within MoTH as guidance by
those who carried out routine and frequent work of designing and installing of
lighting.

[48]       
Mr. Lohr and Mr. Casey, as the technicians actually designing lighting,
do not support Mr. Lisman’s understanding of the place RP‑8 (1972) had in
MoTH electrical designing. I note, however, that Mr. Lohr and Mr. Casey held
relatively junior positions in the electrical lighting design area of MoTH, and
were not in a position to say what, if any, recourse the electrical engineer,
Mr. Baggett, had to RP‑8 (1972) when he was called upon to place his
engineering approval on their designs.

[49]       
I also note, insofar as the number of luminaires is an issue, that
Mr. Lisman acknowledged in his evidence that two luminaires, not four, was
the standard practice adopted by MoTH while he was employed there. Mr. Lisman
testified, however, that RP-8 (1972) had suggested four luminaires were needed
at an intersection with the complexity of that at Blanshard and Cloverdale. From
that, I conclude that to the extent that RP‑8 (1972) was used within MoTH
as a guide to the design of highway lighting, it was not followed slavishly.

[50]       
It is obvious that two light sources are cheaper to install and to
maintain than are four. I accept that the practice of MoTH from 1977-1978
through to 1991 was that two luminaires were required at intersections such as
Blanshard and Cloverdale.

[51]       
In 1991, MoTH developed and adopted its own standards. Those standards,
as found in the Electrical Standards Manual, require four luminaires at an
intersection such as Blanshard and Cloverdale. Notwithstanding the adoption of
that standard in 1991, two luminaires were not added to the Blanshard-Cloverdale
intersection until 2008. That is because it was MoTH’s policy to apply new
standards to new construction only, and to existing infrastructure only when
that existing infrastructure was being substantially reconfigured. Otherwise,
it was not MoTH’s policy to retrofit all existing infrastructure to comply with
new standards as and when they were adopted.

[52]       
Mr. Lohr and Mr. Casey both said that they were instructed that in
designing roadway lighting they were to achieve an average of 20 to 22 lux,
being the illumination cast on the road surface.

[53]       
Before the advent of computers and computer-assisted design, they
achieved this objective through a design process that started with a plan of
the roadway or intersection to be lighted. They would select a template that corresponded
to the luminaire or light source that had been selected to be installed along
the roadway or at the intersection.

[54]       
These templates were already there when Mr. Lohr was hired, and he
understood that they were based upon data provided by the manufacturer of the
lighting fixture or luminaire that had been selected for installation. Templates
that corresponded to each luminaire had been cut out of plastic, it is not
clear by whom, and were available to Mr. Lohr and Mr. Casey, who accepted that
by applying these templates to the plans in the way they had been taught, they
would achieve the minimum required illumination, or lux, on the road surface.

[55]       
Mr. Lohr testified that he would lay the templates on the plan of the
roadway, alternating side to side, and so long as the curved edges of the
templates touched, he was assured of achieving his minimum illumination. By
that process, he would fix on the plan the location of the posts that would
hold the luminaires represented by the templates. While Mr. Lohr had been
taught how to calculate uniformity ratio, it was a time consuming task, and he
was not expected to do it while working for MoTH, as the templates achieved
what he was expected to achieve.

[56]       
With respect to the location of the luminaires at the Blanshard and
Cloverdale intersection, Mr. Lohr testified that they were not on the corners
that he would have ordinarily expected them to be. That is, instead of locating
the luminaires on the northeast and southwest corners, he had located them on
the opposite corners, southeast and northwest.

[57]       
Mr. Lohr could not recall why he had done that, but at some point
shortly before he testified, he went back to the intersection and saw that a hydro
power line ran in an east-west direction along the north side of Cloverdale
Avenue and through the intersection of Cloverdale Avenue and Blanshard Street.
Mr. Lohr testified that a conflict with the overhead hydro distribution
line was probably the reason he located the luminaires where he did and not
where he thought he would ordinarily have put them, that is, at the northeast
and southwest corners.

[58]       
It also appears that, in ordinary circumstances, Mr. Lohr would have
placed the luminaires over the main roadway, which in this case is Blanshard
Street, but at this intersection they were hung over the secondary road,
Cloverdale Avenue.

[59]       
As to the hydro conflict, Mr. Lohr testified that he was instructed to
maintain at least a three meter clearance between light poles, and the arms and
luminaires attached to them, and hydro lines. He said this applied to the upper
lines which carry the power, and a lower single line, which he understood was a
neutral wire.

[60]       
Mr. Kreye, a regional distribution engineer employed by B.C. Hydro, testified
that it is not uncommon for there to be clearance issues when a municipality
wished to install luminaires near power lines. Mr. Kreye said that it was
necessary to maintain a three meter minimum separation between primary wires
carrying high voltages, which are located at or near the top of the hydro
poles, or secondary wires which also carry voltage but are located below the
primary wires. It is not necessary to maintain a three meter distance away from
the neutral wire, the lowest of the wires on the hydro pole, because the
neutral wire does not carry voltage.

[61]       
When Mr. Lohr attended the intersection before trial, he noticed that
the luminaires that were then in place were in fact close to the lower or
neutral hydro wire, at least at the southwest corner. He concluded that he had
placed the luminaires where he did in his 1977 design in order to avoid having
a luminaire too close to the lower neutral hydro wire at the northeast corner.

[62]       
Mr. Lohr’s evidence about luminaire placement was of necessity largely
reconstruction. It does not accord with Mr. Kreye’s evidence that it is not
necessary to maintain a three meter separation from a neutral wire. In
cross-examination Mr. Lohr said that he assumed that the luminaires and
the poles on which they hang were in the same position relative to hydro poles
in 1977 as they were when he looked at them about a week before he testified –
which would be inconsistent with pole movement when Cloverdale Avenue was
widened in 1983, and in re-examination he said the poles appear to have been
moved in. On the other hand, Mr. Lohr testified about what he understood to be
the clearance requirements in 1977, while Mr. Kreye did not say whether there
had been a change in B.C. Hydro clearance expectations.

[63]       
While various witnesses connected with MoTH, including Mr. Lohr,
testified about the difficulties and expense in attempting to persuade B.C. Hydro
to relocate power lines or raise them to avoid conflicts with overhead
lighting, Mr. Lohr testified that he did not consider asking B.C. Hydro to
either move its poles or raise its lines in 1977. By June of 1981, if not
before, there was a protocol in place between MoTH and B.C. Hydro which called
for communication between them “at a high level” and which provided for a flat rate
payment of $400 per pole for hydro poles that were moved at the request of MoTH
and/or on the schedule requested by MoTH.

[64]       
While MoTH does not concede that it accepted the standards set out in
RP-8 (1972), it appears that Mr. Lohr’s design did achieve minimum lux values
that equalled or exceeded those set out in RP-8 (1972) and that also met the 3:1
uniformity ratio stated in RP-8 (1972).

[65]       
At the time of Mr. Lohr’s original design, computers were not in use
and, although there were meters by which lighting levels could be checked after
construction was finished, it was not the practice to do so, nor was it the
practice to do manual calculations to confirm that the manner in which the
design had been created, using the templates, achieved the required lux or the
target uniformity ratio.

[66]       
The plaintiff argues that, when Cloverdale Avenue was widened in 1983,
MoTH missed — negligently, according to the plaintiff — an opportunity to
move the luminaires from their northwest/southeast orientation to
northeast/southwest, in addition, of course, to the opportunity to add two luminaires
to the intersection.

[67]       
Instead, when Cloverdale Avenue was made wider without re-orienting the
luminaries, the plaintiff says the already questionable luminaire placement was
made worse by moving the two intersection luminaires further apart.

[68]       
While this still left the average illumination within the 20 lux range,
it altered the uniformity ratio from just under 3:1 to just over 4:1.

[69]       
The significance of the uniformity ratio is that, arguably, when the
difference between average illumination and minimum illumination becomes too
great, the ability of the human eye to adjust to the relative differences in
illumination becomes strained. The plaintiff argues that the 3:1 standard was
set out in RP-8 (1972) and adopted by MoTH, or was independently accepted by
MoTH as appropriate because it was recognized by MoTH to be a minimum safe
ratio between average and minimum illumination.

[70]       
When Cloverdale Avenue was widened in 1983, the hydro poles at the
northeast and northwest corners of Blanshard and Cloverdale were either
replaced or moved, although they had been replaced just a year earlier. Another
pole just to the east, along Cloverdale Avenue, was replaced at the same time.
It would therefore appear that repositioning the luminaires might have been
achieved at minimal to no cost in 1983, either through moving the hydro poles
to reduce or avoid any conflict (assuming that such conflict did in fact exist)
or by raising hydro lines to avoid conflict. It does not appear on the evidence
that reversing the corners on which luminaires were positioned was considered
as part of the 1983 design work.

[71]       
The design of the 1983 lighting was done by a technician who has since
died. That design was not apparently approved by an electrical engineer but
instead by Mr. Ferguson, the senior technician, on behalf of the
electrical engineer.

[72]       
Senior engineers initialled those plans as approved, but that I find was
not as a result of an independent engineering review of the electrical aspects
of the design. Mr. Lisman testified that senior engineers from other
disciplines would accept the certification of an electrical engineer with
respect to the electrical aspects of any particular design.

[73]       
Mr. McLean, who was qualified to give opinion evidence on design of
roadway lighting as well as methods of measuring and calculating lighting
levels, said that the difference between a 3:1 and 4:1 uniformity ratio was not
of particular significance, and that the average amount of light falling on a
surface was a more important number to know. He agreed that a measurement
showing the average amount of light falling on a surface was a different matter
than what a person, such as a driver, was able to see. Such a difference arose
out of measurements taken by the witness Mr. Inch, who had an instrument that
measured the light entering a human eye, and a different instrument that measured
the amount of light shining on any particular place on the road surface.

[74]       
Dr. Lewin, an expert in the ability of the human eye to see in different
lighting conditions, said that the difference between 3:1 and 4:1 becomes
academic when the road surface is wet, primarily because of glare from vehicle
headlights and other sources of light, and that a more significant factor is
the contrast between, in this case, a pedestrian in the foreground and the
background behind the pedestrian. Dr. Lewin said that the difference in
brightness between the pedestrian in the foreground and the background is what
permits one to see the pedestrian.

[75]       
All of this becomes significant because the plaintiff had Mr. Inch
attend at the intersection of Blanshard and Cloverdale to take measurements of
the available light (lux) and how much light was reflected off the background
and available to the human eye (luminance) in March 2007. This was before two
additional luminaires were installed at Blanshard and Cloverdale. Mr. Inch took
measurements at various places in the intersection, including the southwest
corner from which Ms. Meghji started across the intersection, and at about
the point of impact in the third southbound lane, closest to the centre median.
Mr. Inch’s measurements indicated 3.1 lux at the pedestrian island from which
Ms. Meghji started, and 1.3 lux at what he understood to be the point of impact,
far below the averages of 20 to 22 Mr. Lohr said he was trying to achieve in
his design.

[76]       
The plaintiff called Mr. Chadwick, who was qualified to give opinion
evidence on roadway lighting and signal design. Mr. Chadwick utilized computer
software to calculate the amount of light cast by the luminaires at or near the
intersection of Blanshard and Cloverdale in March 2009, after the additional luminaires
were installed at the intersection. Mr. Chadwick prepared 10 scenarios,
representing different assumptions about the type and placement of luminaires,
starting with the original roadway plan from 1977. With the aid of his
computer software, Mr. Chadwick could add or subtract luminaires and
manipulate their orientation, and the software would then calculate the amount
of light available at various points in the intersection, and plot them on a
grid. This method permitted him to display in his 10 scenarios the amount of
light cast on the roadway from various luminaire sources.

[77]       
Mr. Chadwick’s first scenario represents his calculation of the light
available after the 1978 original intersection construction. His fourth scenario
represents his calculations based upon the 1983 widening of Cloverdale Avenue
with the luminaires positioned as they were after the reconstruction.

[78]       
By way of contrast, Mr. Chadwick’s second scenario assumed that in
1977-1978 the two luminaires were repositioned, that is, from the northwest and
southeast corners to the northeast and southwest corners. Mr. Chadwick’s third
scenario presumed four luminaires at the intersection while Cloverdale remained
a two-lane road with the left- and right-turn lanes, as built in 1978.

[79]       
Mr. Chadwick’s calculation of light available in the southwest corner
from which Ms. Meghji started and at the point of impact differ from the amount
of light measured by Mr. Inch. While the measurements might
understandably be different because one is based on computer projection
(Chadwick) while the other is based on meter measurement (Inch) two years
apart, more troubling is that while Mr. Inch measured the available light at
the point of impact lower than the island from which Ms. Meghji started,
Mr. Chadwick’s calculations show the available light at the point of
impact as brighter than at the island from which Ms. Meghji began. Dr. Lewin
fastened on this discrepancy to question the accuracy of Mr. Inch’s
measurements generally.

[80]       
In this context it is worth remembering that, in the intersection as
configured at the time of the accident, Ms. Meghji left an area of lesser
light, where there was no overhead luminaire installed, and was walking toward
the luminaire at the southeast corner when she was hit.

  Analysis

[81]       
In Just v. British Columbia, [1989] 2 S.C.R. 1228 at 1244-1245,
Cory J. says for the majority:

It may be convenient at this stage to summarize what I
consider to be the principles applicable and the manner of proceeding in cases
of this kind. As a general rule, the traditional tort law duty of care will
apply to a government agency in the same way that it will apply to an
individual. In determining whether a duty of care exists the first question to
be resolved is whether the parties are in a relationship of sufficient
proximity to warrant the imposition of such a duty. In the case of a government
agency, exemption from this imposition of duty may occur as a result of an
explicit statutory exemption. Alternatively, the exemption may arise as a
result of the nature of the decision made by the government agency. That is, a
government agency will be exempt from the imposition of a duty of care in
situations which arise from its pure policy decisions.

In determining what constitutes
such a policy decision, it should be borne in mind that such decisions are
generally made by persons of a high level of authority in the agency, but may
also properly be made by persons of a lower level of authority. The
characterization of such a decision rests on the nature of the decision and not
on the identity of the actors. As a general rule, decisions concerning
budgetary allotments for departments or government agencies will be classified
as policy decisions. Further, it must be recalled that a policy decision is
open to challenge on the basis that it is not made in the bona fide
exercise of discretion. If after due consideration it is found that a duty of
care is owed by the government agency and no exemption by way of statute or
policy decision-making is found to exist, a traditional torts analysis ensues
and the issue of standard of care required of the government agency must next
be considered.

[82]       
The first question to be answered then is whether there was a
relationship of proximity or neighbourhood between Ms. Meghji and the
defendant, British Columbia, in its capacity as MoTH at the time of the
accident that it would in the reasonable contemplation of MoTH that
carelessness on its part might likely cause damage to Ms. Meghji.

[83]       
The answer to that is obviously that there was. The intersection of
Blanshard and Cloverdale was designed to funnel pedestrians to the crosswalks
that were clearly marked and electronically controlled and to discourage any
attempts to cross Blanshard Street — a busy six-lane divided thoroughfare —
at any place other than an intersection such as at Cloverdale Avenue. A prima
facie duty of care therefore arose.

[84]       
The inquiry then shifts to whether MoTH was exempted from this prima
facie duty of care by either statutory exemption or on the basis that the
decisions made, which would otherwise give rise to a duty of care, were policy
decisions immune from judicial review.

[85]       
This has been characterized as a “governmental policy defence.”

[86]       
In Brown v. British Columbia (Minister of Transportation and
Highways), [1994] 1 S.C.R. 420, Cory J. again stated, this time more
succinctly, the reasoning process to be pursued in cases where the liability of
a government in tort is raised when he said this at 437:

It may now be appropriate to
apply the principles set out in Just to the facts presented in this
case. We must first determine if a prima facie duty of care exists, and
then determine whether the imposition of this duty is excluded by statute or
because the decision at issue is one of policy.

[87]       
The analytical process established in these decisions as well as in Swinamer
v. Nova Scotia (Attorney General), [1994] 1 S.C.R. 445, requires that the
party owing the prima facie duty of care assume the evidentiary burden to
establish an exemption it asserts, whether statutory or policy-based. This does
not shift the overall burden of proof from plaintiff to defendant, it simply
recognizes that once the plaintiff has established the prima facie
existence of a duty owed by MoTH, MoTH then has the burden of leading evidence
to establish any exemption it seeks to rely on.

[88]       
In this case, there is no statutory exemption from the prima facie
duty of care.

[89]       
With regard to what constitutes a policy decision immune from judicial
review, the Court in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,
decided after submissions in this case, affirmed at para. 85 what it termed the
“central insight” in Just, that “true” or “core” policy decisions should
be protected from negligence liability, while operational decisions should not.
Although the Court acknowledged that real life decisions do not fall neatly
into either a protected “policy” category, or reviewable “operational” category,
it concluded at para. 90 that immune “core policy” government decisions are
“decisions as to a course or principle of action that are based on public
policy considerations, such as economic, social and political factors, provided
they are neither irrational nor taken in bad faith.”

[90]       
Bearing these principles in mind, I conclude that the original decision
to install two luminaires at the intersection of Blanshard and Cloverdale,
rather than four, was a policy decision. It was a decision that was applied by
MoTH across the province and, although there was no direct evidence on point,
obviously a decision based upon the difference in costs of designing,
installing and maintaining two as opposed to four luminaires at intersections.
While this policy decision is not open to question by this court, it was in any
event defensible on the basis that, at least at Blanshard and Cloverdale, two luminaires
achieved the uniformity ratio sought by MoTH and more than achieved the minimum
illumination sought, whether under MoTH internal standards or RP-8 (1972).

[91]       
Mr. Lohr’s decision to place the luminaires at the northwest and
southeast corners as opposed to the opposite corners was apparently approved by
his supervisor, Mr. Ferguson, and then by the electrical engineer, Mr. Baggett.
That decision, I find, was an implementation or operational decision that had
nothing to do with policy. The decision of where to place the luminaires, as
part of the operational aspect of MoTH activity, falls to be assessed in the
consideration of the standard of care issue. As stated in Just at 1245.

The manner and quality of an
inspection system is clearly part of the operational aspect of a governmental
activity and falls to be assessed in the consideration of the standard of care
issue. At this stage, the requisite standard of care to be applied to the
particular operation must be assessed in light of all the surrounding circumstances
including, for example, budgetary restraints and the availability of qualified
personnel and equipment.

[92]       
Although the decision to locate the poles on northwest and southeast
corners, did not cause or contribute to Ms. Meghji’s injuries because of the intervening
intersection re-configuration in 1983, I can say that I am not persuaded on the
evidence that Mr. Lohr’s justification for placing the poles where he did was
reasonable.

[93]       
I say that in part because Mr. Lohr could not recall a hydro conflict
being the reason for luminaire placement at the time he designed the lighting
at Blanshard and Cloverdale in 1977. Rather his evidence on that point was a
reconstruction he arrived at as a result of attending at the intersection prior
to giving evidence at trial.

[94]       
Additionally, I note that Mr. Kreye had no concern about possible
conflict between the lowest single neutral line and a light standard, as Mr.
Lohr thought there was. The evidence of possible encroachment of a light pole
and luminaire assembly within three meters of either a primary or a secondary
distribution line was insufficient to establish a real possibility of such
conflict. Finally, four luminaires were eventually installed at this
intersection in 2008, and it does not appear on the evidence that that
installation, which added luminaires to the northwest and southwest corners,
required any significant movement of hydro wires or poles.

[95]       
The work done when Cloverdale Avenue was widened in 1983 raises the same
criticism from the plaintiff’s point of view, that is, that MoTH should have installed
two more luminaires and, if not, ought to have moved the luminaires to the
northeast/southwest orientation Mr. Lohr preferred in 1977-1978 and which the
plaintiff says would have avoided lighting problems created by the 1983 work
that contributed to Ms. Meghji’s accident.

[96]       
For the same reason already given, I view the decision not to add two luminaires
in 1983 as a policy decision. At that time, MoTH was still adhering to its
practice of installing two luminaires at each intersection, primarily for
budgetary reasons, and partially because it had not been persuaded that more
than two were necessary.

[97]       
While it was not clear that MoTH directed its mind to whether additional
luminaires should be installed in 1983, either the failure to consider it or a
deliberate decision not to add luminaires would be exempt from review by this
court as being a core policy decision.

[98]       
Maintaining the location of the luminaires at the northwest and
southeast corners, however, is a different matter. I have concluded that it was
not necessary that the luminaires be placed at those corners because of a
possible hydro conflict, partly on the basis of Mr. Kreye’s evidence and partly
because evidence of a real conflict is inadequate in my view.

[99]       
While that did not mean that the decision of where to place the luminaires
was a breach of the duty owed to Ms. Meghji and others in 1977-1978, the answer
is not so clear in 1983 when those two luminaires were moved further apart with
the road widening.

[100]     As I
understand the evidence of Mr. Lohr and Mr. Casey, ordinarily luminaires would
be placed over the main thoroughfare at an intersection, not the secondary road,
Blanshard Street being the main thoroughfare here. In this case, however,
perhaps because of Mr. Lohr’s concern about proximity to the hydro lines, the luminaires
at the northwest and southeast corners were placed over Cloverdale Avenue and
not over Blanshard Street. This means that, while the amount of the
illumination available to the south crosswalk on Blanshard Street from the luminaire
at the southeast corner would not be materially reduced as a result of widening
Cloverdale, the amount of illumination available to the southwest corner from
the luminaire at the northwest corner of Cloverdale and Blanshard would be
reduced by moving it the equivalent of two lanes further away.

[101]     I find
that this had the effect of reducing the amount of overhead illumination
available to the southwest corner from which Ms. Meghji stepped into the
crosswalk. That reduction continued for some distance across Blanshard Street
as Ms. Meghji approached the luminaire at the southeast corner.

[102]     No one
involved in the design of the lighting at the intersection in 1983 gave
evidence at the trial. The technician who did the design, Ms. Neimi, has since
died, as has Mr. Baggett. Mr. Baggett, however, did not sign off on Ms. Neimi’s
design as the electrical engineer. Rather, his approval was indicated by Mr.
Ferguson, a senior technician. Mr. Ferguson did not give evidence. That means
there is no direct evidence of Mr. Ferguson’s qualifications. Mr. Lohr and,
perhaps, Mr. Casey understood that Mr. Ferguson had joined MoTH after a career in
the Navy during which he had been trained in some aspects of lighting. This is
a weak evidentiary base upon which to consider whether anyone gave any real
consideration to the effect of the widening of Cloverdale Avenue on
intersection lighting.

[103]     When the luminaire
on the north-west corner was moved further from the south-west corner as part
of the Cloverdale Avenue widening, it not only reduced the amount of light
available for part of the south crosswalk, it affected the uniformity ratio in
that area of the intersection.

[104]     The
evidence of people at the scene of the accident shortly after the accident was
generally consistent that the area of the crosswalk in the southwest quadrant
of the intersection was dark. Sergeant Wright was sufficiently concerned about
the lighting that he brought it to the attention of his administrative traffic
committee. Constable Bland described the lighting in the southwest quadrant as
dimmer. None of the drivers, Mr. Lee, Mr. Roberts or Mr. Konkle, saw Ms. Meghji
before she was hit, nor did Mr. Roberts’ passenger, his daughter.

[105]     Dr. Lewin’s
opinion was that uniformity ratio and the speed at which the human eye can
adapt to changes in lighting is not as significant in poor lighting conditions as
is the potential to show contrast between a pedestrian and the background, but
his opinion on that matter as it applied to the circumstances of this accident
is dependant, to some extent, on assumptions he made about the position of Mr.
Lee at various points in the intersection, assumptions that related to a fluid
situation in which Mr. Lee was moving into the intersection, perhaps slowing or
stopping briefly before commencing his left turn, at the same time as Ms.
Meghji was leaving the southwest island into the crosswalk, while Mr. Lee’s
attention was directed to oncoming traffic on Cloverdale Avenue and the
crosswalk into which he was intending to turn. I also note his evidence that
the wet road surface and the glare reflected from it substantially detracted
from the significance of the uniformity ratio.

[106]     Dr. Lewin
agreed that the lighting in the southwest quadrant, from which Ms. Meghji
started into the crosswalk and at the edge of which she was struck, was dimmer
than elsewhere in the intersection, and that the visibility situation generally
was problematic given the conditions he understood existed at the time of the
accident.

[107]     Dr. Lewin
testified that one can never provide enough light within practical limits to
make a darkly clothed pedestrian visible on a dark morning with water on the
road and glare from other light sources. It seems to me that, short of seeking
perfection in intersection lighting, there is a reasonable level of lighting
that could and should be achieved, and that includes lighting within the
accepted uniformity ratio of 3:1. Put another way, in a maritime climate where
pedestrians can be expected to be walking in full dark and in the rain, it is
reasonable to avoid the design or construction of overhead lighting that falls
below accepted standards including uniformity ratio.

[108]     I conclude
that MoTH breached the duty of care it owed to Ms. Meghji when, in 1983,
it left the luminaires at the northwest and southeast corners of the widened intersection
of Cloverdale Avenue and Blanshard Street. MoTH’s failure to consider the
effect of moving the luminaire in the north-west corner farther from the south-west
corner and crosswalk area on the light available to the south crosswalk and on
the uniformity ratio in that portion of the intersection, or its failure to
consider whether there were reasonably achievable ways to compensate for the
reduction in available light, breached the duty of care MoTH owed to Ms. Meghji
and contributed to her injury.

[109]     I conclude
that the breaches of duty on the part of both Mr. Lee and MoTH caused or
contributed to Ms. Meghji’s injuries and losses.

Contributory Negligence of the
Plaintiff

[110]     Both
defendants, while denying their own liability, plead in the alternative that
any injury, loss or damage suffered by the plaintiff was caused or contributed to
by her own negligence. MoTH largely left the argument on contributory
negligence to the defendant Lee.

[111]     The
allegations against the plaintiff are that she entered the crosswalk against a
“Don’t Walk” signal, thus depriving herself of the right-of-way; that she wore
dark clothing into an intersection she knew was dimly lit, in poor visibility conditions;
and that she failed to keep a proper lookout while crossing Blanshard Street.

[112]    
The defendant Lee says that the starting point in assessing Ms. Meghji’s
liability is the determination of which party had the right-of-way, citing Hmaied,
 where the court says at para. 22:

22        When an accident occurs
on a highway, the starting point for analysis is a determination of who had the
right of way. Generally speaking, the party with the right of way is entitled
to assume that other highway users will obey the rules of the road: Enright
v. Marwick, 2004 BCCA 259 at para. 22. In particular, drivers are
ordinarily entitled to expect that adult pedestrians will not jump out directly
in front of them as they are proceeding lawfully along their way: Enright,
supra at para. 35; Ibaraki v. Bamford, [1996] B.C.J. No. 724 at
para. 12-13.

[113]    
If, by this, the defendant Lee intends to suggest that the determination
of right-of-way is the full answer to a liability question, the argument
overlooks the paragraph that follows in Hmaied:

23        Regardless of who has
the right of way, however, there is a duty upon drivers and pedestrians alike
to keep a proper lookout and take reasonable precautions in response to
apparent potential hazards: Nelson (Guardian ad litem of) v. Shinske
(1991), 62 B.C.L.R. (2d) 302 (B.C.S.C.); Karran v. Anderson, 2009 BCSC
1105. Depending on the circumstances, from a driver’s perspective one such
hazard may be a jaywalking pedestrian: Ashe v. Werstiuk, 2003 BCSC 184,
upheld 2004 BCCA 75; Claydon v. Insurance Corp. of British Columbia,
2009 BCSC 1077. If it is reasonably foreseeable or apparent that a pedestrian
will disregard the law and thus create a hazardous situation, a driver is
obliged to take all reasonable steps to avoid a collision. In such
circumstances, if the driver has a sufficient opportunity to avoid the
collision, but does not take appropriate evasive action, the driver will be
found negligent: Karran, supra; Beauchamp v. Shand, 2004
BCSC 272.

[114]     From this,
I conclude that, while a statutory right-of-way is an important consideration,
and, depending upon the circumstances, may be the most important consideration,
it remains but a factor to be considered when assessing liability.

[115]    
Sections 127 and 132 of the Motor Vehicle Act deal with the
respective obligations of driver and pedestrian in an intersection such as
Blanshard and Cloverdale. Section 127 reads:

127      (1)        When
a green light alone is exhibited at an intersection by a traffic control
signal,

 (a)        the
driver of a vehicle facing the green light

 (i)         may
cause the vehicle to proceed straight through the intersection, or to turn left
or right, subject to a sign or signal prohibiting a left or right turn, or
both, or designating the turning movement permitted,

 (ii)        must
yield the right of way to pedestrians lawfully in the intersection or in an
adjacent crosswalk at the time the green light is exhibited, and

 (iii)       …

 (b)        a
pedestrian facing the green light may proceed across the roadway in a marked or
unmarked crosswalk, subject to special pedestrian traffic control signals
directing him or her otherwise, and has the right of way for that purpose over
all vehicles.

Section 132 reads:

132  (1)        When
the word "walk" or an outline of a walking person is exhibited at an
intersection by a pedestrian traffic control signal, a pedestrian may proceed
across the roadway in the direction of the signal in a marked or unmarked
crosswalk and has the right of way over all vehicles in the intersection or any
adjacent crosswalk.

 (2)        …

 (3)        When
the word "wait", the words "don’t walk" or an outline of a
raised hand are exhibited at an intersection or at a place other than an
intersection by a pedestrian traffic control signal,

 (a)        a
pedestrian must not enter the roadway, and

 (b)        a
pedestrian proceeding across the roadway and facing the word "wait",
the words "don’t walk", or an outline of a raised hand exhibited
after he or she entered the roadway

 (i)         must
proceed to the sidewalk as quickly as possible, and

 (ii)        has
the right of way for that purpose over all vehicles.

[116]     The
defendant Lee also points to s. 179(2) of the Motor Vehicle Act which
reads:

179      (2)        A pedestrian must not
leave a curb or other place of safety and walk or run into the path of a
vehicle that is so close it is impracticable for the driver to yield the right
of way.

[117]     Ms. Meghji
testified that when she entered the crosswalk, it was as a result of having
pushed the pedestrian signal button and waited for a “walk” signal. The
defendants argue that Ms. Meghji’s recollection at trial, some six years after
the accident, should be viewed with some scepticism as it is an island of clear
memory in a sea of otherwise poor recollection on her part, and that it
conflicts, to some extent, with statements Ms. Meghji made at the time of
the accident, including to the attending police officers and, within weeks, to
her lawyer.

[118]     Constable
Bland testified that, when he attended the scene of the accident,
Ms. Meghji appeared to be in quite a bit of pain but was able to speak in
a matter-of-fact manner to ambulance attendants and to him and that, in
conversation with him, Ms. Meghji was clear and showed no apparent confusion or
hesitation. Constable Bland said that Ms. Meghji told him she had complained
about that particular intersection in the past. More to the point, Cst. Bland
asked Ms. Meghji if the pedestrian light was flashing and Ms. Meghji told him
she thought it was and that she had the right of way. He says he asked her if
she had the walk signal and said, “I think so” and that he noted that response
in his notebook at the time. The precise contents of this conversation were not
put to the plaintiff in cross-examination. That may be because her evidence was
fairly consistently that, after the impact, she had only a vague and patchy
recollection of events and that she did not recall speaking to a police officer
at the scene or in the hospital.

[119]     The
pedestrian signal sequence starts with a permissive or “Walk” signal evidenced
by a white silhouette of a walking person for seven seconds, followed by 21
seconds of flashing “Don’t Walk” symbol, followed by a solid “Don’t Walk”
signal. It is not clear whether Ms. Meghji’s uncertainty was related to the
flashing “Don’t Walk”, or a solid permissive white walking symbol. Her response
to Cst. Bland’s question, therefore, can be consistent with the impact having
occurred at about or shortly after the change in the pedestrian light sequence
from the solid permissive “Walk” to the flashing “Don’t Walk” which is meant to
remind pedestrians to move quickly out of the intersection.

[120]     Ms. Meghji
signed a written statement on February 20, 2003. That statement apparently was
produced as a result of an interview conducted by an associate from her
lawyer’s office. That resulted in a typed statement which was later signed by
Ms. Meghji and witnessed by her husband. The statement describes Ms.
Meghji’s habit of pressing the pedestrian “Walk” button and waiting to see if
there is a “Walk” or “Don’t Walk” signal before crossing Blanshard Street, but
it does not specifically state that that is what she did on the day of the
accident.

[121]     Ms. Meghji
said, in cross-examination, that she was still heavily medicated at the time of
this statement and, in any event, her interpretation of the statement is that,
by describing her habit, she was in effect saying that is what she did on the
day of the accident.

[122]     This level
of detail in the analysis is necessary in a case where, as in this one, a party
whose interest clearly is affected by the outcome, has the only direct evidence
on a material point. See Faryna v. Chorny (1951), 4 W.W.R. (N.S.) 171 at
174 (B.C.C.A.); Johnson v. Bugera, 1999 BCCA 170 at paras. 33 and 34.

[123]     The
defendants rely substantially on the evidence of Mr. Konkle, who was stopped at
the stop line southbound on Blanshard Street in the lane closest to the centre
median. That put him directly across the intersection from Ms. Meghji at
the point of impact. Mr. Konkle, having stopped for a red light at the
intersection, and knowing that he had some time to wait before a green signal,
stopped paying attention to the intersection before him. His attention was
drawn back to the intersection, he said, by a flash of green in his peripheral
vision, which he took to be the change of the light facing him from red to
green. Mr. Konkle said he looked up and saw Mr. Lee’s vehicle just coming to a
stop across the intersection. Mr. Konkle’s evidence, if accepted, would
put the impact at the change of the light for Blanshard Street traffic from red
to green, and, by inference, put Ms. Meghji less than half way across the
intersection at that time. All of this would mean that Ms. Meghji must
necessarily have stepped into the crosswalk at the southwest corner against a “Don’t Walk”
signal, either flashing or solid.

[124]     As part of
this argument, the defendant Lee challenges the evidence of two other people
stopped at the stop line southbound on Blanshard Street, Peter Roberts and his
daughter, Selena. They each testified about stopping at the intersection
because of a red light, and Selena Roberts estimated the time that elapsed
before she saw the impact between Mr. Lee and Ms. Meghji across the
intersection. Mr. Roberts also estimated the time he was stopped before his
daughter drew his attention to the accident.

[125]     Counsel
for the defendant Lee criticises Mr. Roberts’ estimates of time lapse on the
basis that the estimates changed from time to time, perhaps in response to
information about the evidence of other witnesses. Counsel dismisses Selena Roberts’
evidence as well-intentioned but mistaken.

[126]     Because
neither of the Roberts’ were able to say when the light for southbound
Blanshard Street traffic changed to red in relation to when they came to a
stop, counsel argues that their evidence is at best unreliable and that
Mr. Konkle’s evidence should be preferred.

[127]     Mr.
Konkle’s evidence is somewhat inconsistent with the evidence of Mr. Lee, who
testified that, when he commenced his left turn, he believed that the light for
east-west traffic on Cloverdale Avenue had been green long enough that it was
about to turn amber. That suggests that Mr. Lee believed the light facing him
to be green when he started his left turn, and on that evidence, unless it took
Mr. Lee six seconds, or thereabouts, to go from roughly the middle of the
intersection to the crosswalk where he struck Ms. Meghji, his timing and
Mr. Konkle’s timing do not correspond.

[128]     The
admitted evidence from the Ministry of Transportation electrical branch with
respect to the signal timing at the intersection indicates that, at the end of
the green signal for Cloverdale Avenue traffic, there is a yellow signal for
4.5 seconds, followed by a red signal for 1.5 seconds before the Blanshard
Street signal changes to green.

[129]     Given that
Mr. Konkle described his level of attention to the intersection before seeing
green as “zoned out”, I place little weight on his recollection.

[130]     Ms. Meghji
testified that she started into the crosswalk on a permissive walk signal. After
considering all of the evidence surrounding that point, and viewing Ms. Meghji’s
evidence on the point with some scepticism, I accept Ms. Meghji’s evidence as
to the state of the walk signal when she entered the crosswalk. In any event, I
would have concluded that the defendants had failed to satisfy the burden upon
them of establishing that Ms. Meghji failed to take reasonable care for
her own safety. Each defendant’s plea of contributory negligence is dismissed.

[131]     Mr. Lee’s
negligence is greater than that of MoTH for a number of reasons, not the least
of which is that he was in a position to note the poor lighting in the area
into which he was turning, which he described as a “dark hole”. He said he was
partially blinded when he glanced in the direction of the crosswalk, where he
says the brightness met darkness. I also take into account Mr. Lee’s knowledge
of his own condition and the condition of his vehicle at the time of the
accident.

[132]     I
apportion liability for the accident 90% to Mr. Lee, 10% to MoTH.

Injuries and Treatment

[133]     Ms. Meghji
was born in Tanzania November 8, 1969. She was 34 when the accident occurred,
39 when the trial started, and is now 41 years old.

[134]     Mr. Lee
struck Ms. Meghji on her left side. That caused a significant fracture to Ms.
Meghji’s left upper arm, a less significant fracture just below and into
her left knee and an injury to her left ankle, all of which required immediate
medical intervention. There were also the soft tissue injuries that would
reasonably be expected to accompany such trauma.

[135]     Within a
day of the accident, Ms. Meghji had surgery to her left upper arm that involved
the insertion of a rod that was fixed by screws just below her shoulder and
just above her left elbow. She also had a screw placed into her left ankle.

[136]     The
attending surgeon, Dr. Zarzour, has not provided any written opinion. Counsel
informed the court that Dr. Zarzour refused to provide a written opinion and
was not willing to testify, even if counsel were able to overcome an inability
to provide advance notice of what he might say.

[137]     The
plaintiff has testified that in May 2003, she had the screws removed from her
left ankle and from her left shoulder. The plan was to also remove the screw
from her left elbow but infection was found and that was left until July 2003,
when it was removed. Dr. Zarzour did these follow-up surgeries as well.

[138]     These
physical injuries have resulted in a reduction in the range of motion of
Ms. Meghji’s left shoulder and pain in the shoulder; Ms. Meghji has some
altered sensation in her left hand; Ms. Meghji limps on her left side, which is
largely attributable to left knee pain.

[139]     In October
2003, Ms. Meghji saw Dr. Landells, an orthopaedic surgeon, and Dr. MacKean,
a physiatrist, both on referral from her lawyer. Dr. Landells’ opinion was that
Ms. Meghji’s residual stiffness and chronic pain in her left shoulder would
continue and that there was a possibility of progressive degenerative changes
in her left knee. Dr. MacKean felt there was an increased risk of
post-traumatic osteoarthritis in Ms. Meghji’s left knee, possibly to occur in
the next five to ten years, and that her left shoulder stiffness and weakness
were unlikely to recover fully.

[140]     Ms. Meghji
had started physiotherapy at home, then in March 2003, started therapy with
Ms. Cuttiford at the Victoria Exercise Rehabilitation Centre.

[141]     In May
2003, Ms. Meghji began to see Penny Hobson-Underwood, a psychologist. Ms.
Meghji says that she saw Ms. Hobson-Underwood because of problems with
concentration and low mood.

[142]     While the
parties did not agree on the long-term effects of Ms. Meghji’s physical
injuries, the principal issue with respect to the plaintiff’s injuries, and the
one that occupied the most time at trial, concerned whether the plaintiff proved
that she suffered a mild traumatic brain injury in the accident.

[143]     The bases
on which the neuropsychologists disagreed have been explored in detail which,
at times seemed to approach the arcane. The neuropsychological debate is doubtless
important to the issue of brain injury, as is dissection of the evidence of
those attending the scene of the accident and responsible for investigating the
accident or transporting Ms. Meghji to hospital.

[144]     There are,
however, cases where the necessary findings of fact on something as subtle as a
mild brain injury can be assisted by credible evidence of witnesses who can
present a clear picture of a plaintiff before and after an event that is
alleged to have caused the injury. This is one of those cases where any
uncertainty left by the competing and contrasting medical and
neuropsychological opinions is more than adequately resolved by the evidence of
those who have known Ms. Meghji in the past and are in a position to compare
and contrast their impressions of her before and after the accident.

Lay
Witness Evidence of Ms. Meghji Before and After the Accident

[145]     Dr. Ali is
now a chiropractor practising in southern Ontario. He first met Ms. Meghji
when he was 16 and she was 15, and both were on a summer student exchange in
the Province of Quebec. They became friends on that trip and when
Ms. Meghji transferred to the high school attended by Dr. Ali, their
friendship solidified.

[146]     For a year
or so, Ms. Meghji regularly visited Dr. Ali’s house and became friendly with his
family. After that year, Dr. Ali went off to university, and his contact with
Ms. Meghji dropped in frequency to, perhaps, monthly. When Dr. Ali
finished his undergraduate degree and took up work in Toronto, he saw Ms. Meghji
more frequently.  Then, when both were accepted into an international exchange
program, he saw her weekly while they met with others to plan the fundraising
they had to do in order to pay for their international travel.

[147]     Ms. Meghji
and Dr. Ali travelled on the international exchange program apparently in 1994,
although to separate places and at different times. When Dr. Ali returned from
the exchange program, he entered chiropractic college and had little time to
socialize, thus did not see Ms. Meghji much between 1999 and shortly after the
accident, in 2003.

[148]     Dr. Ali
described Ms. Meghji before the accident as a hard-working, dedicated person
with a great heart, a great soul and great ambition. He said that, while they were
both involved in the international exchange planning process, Ms. Meghji
was a leader, one who made sure things got done and organized others to get
their parts done.

[149]     Dr. Ali
heard about Ms. Meghji’s accident in 2003 from her sister, Nimet. He saw Ms.
Meghji when she moved back to Toronto in 2003 and Ms. Meghji and her husband Mr. Kuoni
visited him at Dr. Ali’s home.

[150]     Dr. Ali
testified that he was shocked when he first saw Ms. Meghji in 2003. He
described her as frail, weak, moving very slowly, with limitations to her arm
and shoulder, and as well, he said she was soft spoken, lacking fire, and did
not appear motivated. He said the vitality was not there anymore; there was no
spark in her eyes. Dr. Ali said Ms. Meghji did not talk about her problems.

[151]     Ms. Meghji
asked Dr. Ali if there was any employment available at the clinic where he
worked. He spoke to the owner of the clinic and an arrangement was made to hire
Ms. Meghji to work part time as a receptionist/secretary on the same shifts
Dr. Ali was working, two days a week in the afternoons and evenings, five
to six hours per shift.

[152]     Dr. Ali
testified that Ms. Meghji’s job was to book appointments, take phone calls,
show patients to treatment rooms, pull the patients’ files and deliver them
with the patient, process payments after each treatment and clean the treatment
rooms. This involved personal contact with the patients, making entries into
the computer for appointments and billing and the like, and as well, balancing
a $100 petty cash float at the end of the day. Dr. Ali said that the billing
process involved pulling up the patient name on the computer, entering a
billing code, identifying the treating chiropractor, and entering payment,
which might involve either a cash transaction or a credit or debit card charge.

[153]     Dr. Ali
described this as a Grade 10 type of job, meaning it was well within the
capacity of a grade 10 graduate, not requiring any technical ability or any
particular computer skills. Ms. Meghji was trained in this job by the other
receptionist, by Dr. Ali, and by the clinic owner, Dr. Ismael. The
training lasted three days, which is the usual length of training for this
level of job in that clinic.

[154]     Dr. Ali
described Ms. Meghji’s performance in this job as “horrible”. He said it was a
disaster in many ways: Ms. Meghji could not remember things, made a lot of
mistakes and was unable to multitask from the outset. She would forget to pull
the patients’ files after having been asked to do so. She would greet patients
and forget to take them to the treatment rooms and Dr. Ali would find patients
in the waiting room instead of where he expected them to be.

[155]     Dr. Ali
said that Ms. Meghji made mistakes every day in billings: she would enter the
wrong code for the service provided or would forget to put the entry in
completely. Dr. Ali found that he was having to stay behind just about every
time Ms. Meghji worked, to spend an hour to an hour and a half correcting
her mistakes, something he had never had to do with other receptionists.

[156]     Dr. Ali
testified that after two or three shifts like this, he spoke to Ms. Meghji
about her performance and she got angry with him, denied that he had asked her
to pull files as he complained, and threw her keys at him. Dr. Ali was shocked
by this because she had ever acted this way before.

[157]     Dr. Ali
described Ms. Meghji’s problems with multitasking by example: if a patient came
in and the phone rang, she would put the telephone caller on hold in order to
take a patient to the treatment room but then forget that she had someone on
hold. Other times, she would forget to finalize a patient visit by billing the
patient and a patient might wait in the waiting room for 15 to 20 minutes.

[158]     Ms. Meghji
started work in November 2003 and by January 16, 2004, things had become worse,
not better. Dr. Ali felt badly and, because of his friendship with Ms. Meghji,
was reluctant to be the one to fire her. He spoke with the clinic owner, Dr.
Ismael, and asked Dr. Ismael to work with Ms. Meghji for a time in order to see
if Dr. Ismael’s impressions corresponded with his own. Dr. Ismael worked with
Ms. Meghji for a couple of shifts, concluded that Ms. Meghji could not continue
in her employment and informed Ms. Meghji that her employment was terminated.

[159]     While it
is not clear whether Ms. Meghji was fired or simply not hired during or at the
end of a probation period, the result is the same.

[160]     Dr. Ali
said that he could tell by watching Ms. Meghji that she was in pain, although
she never complained about it. He said that other than the emotional outburst
when Ms. Meghji threw her keys at him, the only other sign of emotional
problems was that she appeared flustered to him.

[161]     Mr. Brozak
testified that he met Ms. Meghji in 1990 or 1991 when both were students at
York University. They started as friends, then became romantically involved
about three months later. Once they became romantically involved, he saw Ms.
Meghji an average of four times per week. For about a year and a half
Mr. Brozak and Ms. Meghji worked in the same department at St. Joseph’s
Hospital in Toronto.

[162]     Mr. Brozak
and Ms. Meghji remained romantically involved for four or five years and in
that time, lived together for about three months. Their relationship ended
December 31, 1995, when Ms. Meghji, who had spent about 11 months in India over
1994 and 1995, made it clear that she wanted their relationship to become
permanent and Mr. Brozak had different ideas.

[163]     Mr. Brozak
testified that the dissolution of their relationship was amicable and that they
remained good friends after December 31, 1995, although they saw less of each
other as time passed. Mr. Brozak said that part of the reason their
relationship continued after they stopped being a couple was that Ms. Meghji
had formed a fairly strong relationship with Mr. Brozak’s mother, and that
relationship continued.

[164]     Mr. Brozak
and Ms. Meghji continued to stay in touch, sometimes by telephone and sometimes
by email, communicating an average of once or twice per month, between 1995 and
the accident.

[165]     Mr. Brozak
learned of the accident from his mother while he was in the United States. Mr.
Brozak was fairly sure that he spoke to Ms. Meghji after the accident and he
had the impression she did not like to talk about it.

[166]     Mr. Brozak
first saw Ms. Meghji after the accident in February 2004 and saw her about
eight to ten times from then until Ms. Meghji moved back to Victoria, which he
thought was in 2005. The first couple of times he saw Ms. Meghji it was at her
sister Nimet’s chiropractic clinic where he thought Ms. Meghji was “sort of
helping out” and, on those occasions, he spent five to ten minutes talking with
Ms. Meghji. Later that year, Mr. Brozak moved in with his mother and said that
he would often come home and find Ms. Meghji visiting with his mother. On some
of those occasions he and Ms. Meghji would go for a walk.

[167]     After Ms.
Meghji and Mr. Kuoni returned to Victoria, Mr. Brozak’s contact with Ms.
Meghji gradually lessened. In the last six months prior to his evidence at
trial, Mr. Brozak said there were maybe two email or telephone contacts.

[168]     Mr. Brozak
described Ms. Meghji when they were students together as a lot of fun, very
sharp, sexy, and physically active. They would go camping five or six the
weekends during the summer, and he said she had a good sense of humour, was
lively, and loved to dance. Mr. Brozak said that once Ms. Meghji got into the
environmental studies program at York University, she began to thrive.

[169]     Mr. Brozak
was interested in esoteric Buddhism, a topic he said was not for dilettantes.
He described Ms. Meghji, after having read one key book on the subject, as
appearing to have grasped the concepts. In all the time that he knew Ms. Meghji
before the accident, he never had occasion to question her level of
intellectual functioning and said that he never would have stayed with her if
she had not been intelligent.

[170]     By
contrast, Mr. Brozak said that when he saw Ms. Meghji after the accident, she
was like an old lady in the sense that she was a different person, she did not
seem as excited about things, instead she seemed kind of resigned, and did not
have the same level of energy or enthusiasm.

[171]     While Ms.
Meghji showed him the scars on her arm, he said she seemed to guard herself
from discussing her injuries. He described her as vacuous, by which he meant
spacey, or not really getting what was being discussed. He said she had always
seemed really sharp to him before the accident and now she is an airhead, or,
at least, seems that way to him.

[172]     Mr. Brozak
said Ms. Meghji no longer remembers when his birthday is. She used to call him
on his birthday every year, now she calls him the first week of April, although
his birthday is April 14. He says that in conversation, he will explain
something to her and she will carry on in conversation as if she has not heard
what he has said. Ms. Meghji seems to meander a bit conversationally, and he no
longer enjoys talking to her the way he used to. He describes talking to Ms.
Meghji on the telephone as frustrating.

[173]     Evelyn
Chauncey is a retired schoolteacher who has been involved in Vipassana
Meditation since 1983. She met Ms. Meghji and Mr. Kuoni in 1999 when they moved
to Victoria and they became friends. From late 1999 onward, Ms. Meghji and
Mr. Kuoni volunteered their condominium unit for small group meditations
on a monthly basis.

[174]     Ms. Chauncey
says others who have hosted meditation sessions have made tea for attendees, and
perhaps one of those attending might bring some cookies. Ms. Meghji was
different, however, in that she would make Indian treats and try to engage the
attendees, to encourage socializing after the meditation event.

[175]     Ms. Chauncey
also described Ms. Meghji’s involvement in organizing a larger group meditation
for 80 people in 1999 where, over 10 days, Ms. Meghji was involved with
planning, ordering food, setting up facilities, organizing the kitchen, and
being the manager, which involved daily contact with 40 female students.

[176]     Ms.
Chauncey described the work done by Ms. Meghji and Mr. Kuoni in taking over and
organizing the financial affairs of the Vipassana organization.

[177]     Ms.
Chauncey says that before the accident, Ms. Meghji was a high energy, organized
and efficient person with well above-average organizational and management
abilities. She said that Ms. Meghji could be relied upon to follow through and,
when given a job, she could be confident that Ms. Meghji would get it done. She
noted no problems with Ms. Meghji’s mental processing or cognition and said
that Ms. Meghji was bright, quick to understand, and gave the impression of
being a very intelligent woman.

[178]     Ms.
Chauncey saw Ms. Meghji after the accident and had the impression that Ms.
Meghji’s face was bruised. In the first months after the accident, she saw
Ms. Meghji three or four times and did not think Ms. Meghji had very much
stamina.

[179]     When Ms.
Meghji returned to Victoria in September 2003 for arthroscopic examination of
her knee, she stayed with Ms. Chauncey in a guest cottage on Ms. Chauncey’s
property. Ms. Meghji’s mother accompanied her and Ms. Chauncey noted that
Ms. Meghji’s mother seemed to be doing everything for Ms. Meghji, quite unlike
Ms. Meghji’s pre-accident independence. Ms. Chauncey also noticed that
Ms. Meghji had to ask how to operate the washing machine, and after
Ms. Chauncey explained it to her, Ms. Meghji did not appear to understand,
and called Ms. Chauncey again for instructions on how to operate the
machine.

[180]     Ms.
Chauncey also described how Ms. Meghji tried to do a simple task of installing
a liner in some cupboards. She said that instead of cutting a single piece to
size, Ms. Meghji ended up doing a number of small patchwork pieces. Ms. Chauncey
observed Ms. Meghji trying to assist in registering people who wished to sign up
for meditation courses and concluded that Ms. Meghji was willing, but lacked
the capacity, to perform that relatively simple task properly.

[181]     Since Ms.
Meghji and Mr. Kuoni returned to Victoria in 2006, Ms. Chauncey has seen
Ms. Meghji three or four times a year. Ms. Chauncey described meetings that
they both attended in April and June 2009 in the meeting room at
Ms. Meghji’s condominium building. Ms. Meghji brought a trolley of food
but Mr. Kuoni had to lift things out and Ms. Chauncey noted that Ms. Meghji
used only her right arm to push the trolley. Ms. Chauncey said Ms. Meghji was
passive during the meetings, asked no questions and seemed to be looking off
into space. This is unlike what Ms. Chauncey would have expected before
the accident when she would have thought Ms. Meghji would participate, ask
questions, give suggestions and be otherwise very engaged. Ms. Chauncey also
described an earlier meeting in October 2006 that involved rezoning land, again
having to do with the Vipassana Foundation. On that occasion, Ms. Meghji was
very passive, looked very tired, and at some points seemed puzzled at the
conversation.

[182]     Finally,
Ms. Chauncey described having volunteered, along with Ms. Meghji, to help a
mutual friend who was a dealer in gems, to sort his inventory for a gem show.
It was a simple job. Each person got a bundle of gems and transferred them to
smaller containers, labelling them and writing down the cost per carat.
Ms. Chauncey said Ms. Meghji would start to write information, then look
at what Ms. Chauncey was doing, and Ms. Chauncey would tell her to write
the price as the next step. Ms. Meghji would then go elsewhere to rest for a
bit and when she came back, would require another explanation of how to
accomplish the simple task.

[183]     Ms.
Chauncey said that she has not had long conversations with Ms. Meghji
since the accident because Ms. Meghji fades. When Ms. Meghji told
Ms. Chauncey that she was going to apply for a job in a jewellery store,
Ms. Chauncey did not think that that was one of Ms. Meghji’s better ideas.

[184]     Mr. Kuoni,
who as mentioned is Ms. Meghji’s husband, was born and raised in Switzerland.
He came to Canada on behalf of his Swiss employer and took up the position of
president of North American operations. In 1994, Mr. Kuoni’s employer
reorganized, and wanted him to spend more time in Europe. Mr. Kuoni decided to
leave his employment in order to stay in Canada and, after considering the
matter, concluded that if he were to live frugally, he could afford to retire.
At about the same time, Mr. Kuoni had developed an interest in the Vipassana
meditation, and his increasing involvement in that discipline helped him to
make up his mind about retirement.

[185]     In about
1994, Mr. Kuoni took a course in Chinese medicine in Toronto, and at the same
time, Ms. Meghji was studying Ayurvedic medicine at the same school. The two
had some classes together and developed a friendship which then developed into
a relationship. Mr. Kuoni, who was in his early 40s, was attracted by Ms.
Meghji’s energy. He says that he made it clear to Ms. Meghji that, while he had
enough to take care of his simple needs, he could not be relied upon to support
her.

[186]     After Ms.
Meghji graduated university in 1996, the two travelled to India where Mr. Kuoni
pursued meditation and Ms. Meghji, Ayurvedic medicine.

[187]     Mr. Kuoni
described Ms. Meghji before the accident as very cheery and positive, as well
as ambitious. After the two moved to Victoria, he said they lived simply, with
Ms. Meghji pursuing courses at the University of Victoria with great success.
At home, Ms. Meghji did the cooking and they shared housework.

[188]     Mr. Kuoni
thought Ms. Meghji was a very bright young woman before the accident. He
pointed to her successes at university.

[189]     Immediately
after the accident, Ms. Meghji’s physical injuries were most noticeable, and it
was only as time went on that Mr. Kuoni started to notice things that troubled
him. He said, for example, that Ms. Meghji would leave in the morning and then
return because she had forgotten her house key. Or if she were heating water to
make tea, she would forget to switch off the stove. Mr. Kuoni said Ms. Meghji
was not so alert and attentive and that everything took longer for her.
Although he was concerned, Mr. Kuoni did not make a big fuss about his
observations. Mr. Kuoni felt that Ms. Meghji was not as focussed, alert or
attentive, that she was not as sharp as she had been before the accident.

[190]     As time
went on, Mr. Kuoni realized that he was doing most of the cooking because, even
after Ms. Meghji physically recovered enough to cook, she sometimes forgot to
switch off the stove. After Ms. Meghji ruined two pots, he thought it was dangerous
to let her cook.

[191]     Mr. Kuoni
described Ms. Meghji as “devastated” after she lost her employment at Dr. Ali’s
clinic in Toronto. He said that she was shocked and it was after that he
learned she had been having some suicidal thoughts. Mr. Kuoni said Ms. Meghji
slept a lot and, to him, appeared to have fallen apart.

[192]     Mr. Kuoni
was involved in the operation of Ms. Meghji’s sister’s clinic, and provided
some counselling there. He said that occasionally Ms. Meghji would come to the
clinic and try to help out. Mr. Kuoni said this was more in 2005 than 2004, and
he was pleased because he thought it would be good for Ms. Meghji to get out of
their home, to socialize, and to have something to do.

[193]     According
to Mr. Kuoni, Ms. Meghji made mistakes when she tried to help at the clinic,
such as booking the wrong room for a particular treatment, introducing him to
clients he had met before, or booking appointments with too much time in
between. Mr. Kuoni said that Ms. Meghji did not appear able to take a telephone
call and at the same time ensure that a treatment room would be prepared for
the next client. Mr. Kuoni testified that Ms. Meghji’s attempts to do some
computer bookkeeping were done so poorly that he had to set up a connection to
the office accounting system from their condominium so that he could correct
her mistakes from home. Even this was made more difficult because, although Ms.
Meghji had been told not to turn off the office computers at the end of the day
so that Mr. Kuoni could access them from home, she would forget and turn
them off.

[194]     Mr. Kuoni
said that at first, he would talk to Ms. Meghji about these problems, but he
lost hope after a while. Ms. Meghji appeared frustrated that she could not cope
with these simple tasks and occasionally became angry or upset with him. He
says, as well, that Ms. Meghji’s sister, Nimet, was trying to establish her new
business and the kind of mistakes Ms. Meghji made were resented because of
their impact on Nimet’s profits.

[195]     Generally,
Mr. Kuoni says that Ms. Meghji is now more or less stable unless there is something
he described as “a big storm in life”, by which he means some sort of
challenge. In such an event, he is not sure what effect it will have on
Ms. Meghji and he continues to be concerned about the possibility of
suicide. She now has good days and bad days, he says, so that on a good day, Ms.
Meghji spends time on a small garden plot near their condominium, or on the
computer or she will walk with him to the park. On a bad day, Mr. Kuoni will
have trouble getting Ms. Meghji up in the morning, she will take naps during
the day, and mostly is unwilling to go out for a walk.

[196]     Mr. Kuoni
says that, when Ms. Meghji goes to her part-time job at the jewellery store,
she comes home tired to the point of exhaustion, without the energy to make a
warm meal. Over the Christmas sales period, she worked a full day from time to
time and afterwards was so tired for the rest of that day and the day after
that she was not much interested in anything but rest.

[197]     Ms. Wyeth,
a senior instructor in mathematics at the University of Victoria, remembered
Ms. Meghji, who had been her student in a mathematics course in 2000-2001. Ms.
Wyeth has 60 to 100 students in that course each year and testified that she
does not remember all of them. She recalled Ms. Meghji as an extremely good
student who got an A+ in what Ms. Wyeth described as a fairly heavy course. Of
the 60 to 100 students who take that course each year, Ms. Wyeth estimates that
two or three, and no more than nine students may get an A+. Part of the Math
120 course involved group assignments and Ms. Wyeth recalled that
Ms. Meghji was a leader in groups in which she participated.

[198]     Ms. Wyeth
was sufficiently impressed by Ms. Meghji that two years after Ms. Meghji
took the mathematics course, Ms. Wyeth agreed to take her on as a teaching
assistant for that same course, in spite of Ms. Meghji being somewhat under-qualified
academically. Ms. Wyeth thought Ms. Meghji would do a good job as a teaching
assistant, which involved marking student assignments, and said that she did.

[199]     Mr.
Frewer, the sales and marketing manager for Shaw Cable in Victoria, recalled
that Ms. Meghji worked for minimum wage at a telemarketing job until the job
ended when the department was moved to the interior of British Columbia. He
said that Ms. Meghji was then hired as a technical service representative, to
assist customers having problems with their internet service. That required
that Ms. Meghji have a knowledge of computer software and hardware, as to the
latter, Mr. Frewer said Ms. Meghji had to know how to take a computer apart and
put it back together again. Ms. Meghji was expected to be able to deal
with technical problems experienced by a range of users, from the technically
ignorant to the sophisticated.

[200]     While
working in this capacity, Ms. Meghji was seconded to a project in which Mr.
Frewer was involved. The project involved trying to establish a way to track
reasons customers discontinued their service with Shaw. Mr. Frewer said that
Ms. Meghji was a joy to work with in that secondment, she was creative and
she listened carefully at meetings.

[201]     When Ms.
Meghji quit her job at Shaw around Christmas of 2001 in order to travel with
Mr. Kuoni, Mr. Frewer said that ordinarily would have been a bar to any further
employment with Shaw. He said somewhat exceptionally, Ms. Meghji was rehired
into the technical service department when she returned to Victoria.

[202]     Mr. Frewer
described Ms. Meghji overall as a very good employee, and said that it was
somewhat unusual for an employee at her level to have been employed in so many
positions. He described her as hard working, a quick learner with a positive
work attitude and very bright. Mr. Frewer said emotionally Ms. Meghji impressed
him as measured and calm.

[203]     Mr. Frewer
noted that just before the accident, on January 13, 2003, Ms. Meghji
applied to him for a job as a commercial sales representative. While he thought
she was a reasonable candidate for that job, he also thought she lacked the
hard edge that a sales representative ought to have and that the position would
require half time on the road, travelling to commercial accounts on southern
Vancouver Island. He thought that Ms. Meghji would be less likely to succeed at
such a job than other jobs of a supervisory nature where he considered her
skills were a better fit.

[204]     The commercial
sales representative job pays between $45,000 and $70,000, depending upon
commissions, whereas the supervisory positions now range between $60,000 and
$80,000, and were perhaps seven per cent less in 2003. Mr. Frewer
concluded by saying that, while he thought Ms. Meghji was a good candidate for
a supervisory position, he did not think she was management material for Shaw.

[205]     Also
relevant to the before and after picture of Ms. Meghji is the evidence of her
current employer, Ms. Wysynski. Ms. Wysynski manages a retail jewellery outlet
in a shopping centre in downtown Victoria. Ms. Meghji responded to a help
wanted advertisement Ms. Wysynski posted on the internet and, during an
interview, told Ms. Wysynski that she had some physical and mental problems
arising out of a motor vehicle accident. Notwithstanding this, Ms. Wysynski
hired Ms. Meghji on a three-month probationary basis.

[206]     Ms. Wysynski
trained Ms. Meghji herself and said that Ms. Meghji took longer than others she
has trained to learn about the product she was expected to sell. She said Ms.
Meghji needed lots of repetition and instruction on matters such as the
computer system in use at the store.

[207]     Ms. Wysynski
said Ms. Meghji has obvious memory problems and requires frequent reminders on
a variety of things, such as asking a customer whether they had been working
with another sales representative. That is important because salespeople are
paid partially on commission and hard feelings can result when one salesperson
is perceived as poaching the customer of another.

[208]     Ms. Wysynski
started Ms. Meghji between 15 and 20 hours per week, and then asked her to work
more over the Christmas sales period, at which time she could see that Ms.
Meghji became very fatigued, was not processing information as well, and was
holding her arm and limping.

[209]     Ms. Wysynski
described Ms. Meghji as keen to perform, a very loyal employee who tries very
hard to remember to do the paperwork properly. There is a message book where
what Ms. Meghji needs to do is written down, and Ms. Meghji has to go to that
message book more frequently than other employees to review the list of things
she needs to remember to do.

[210]     Ms. Wysynski
is not sufficiently confident in Ms. Meghji that she would leave her alone in
the store because she feels Ms. Meghji needs constant supervision. As an
example, Ms. Wysynski says that Ms. Meghji will forget to lock the display
cases and needs help to finish her work on time. Ms. Wysynski says Ms. Meghji
is intelligent and mature and very hard working and eager to please, but a lot
slower than other staff and that Ms. Meghji cannot multitask well, which
creates a difficulty when Ms. Meghji will focus on one customer too long,
leaving others untended.

[211]     Notwithstanding
Ms. Meghji’s difficulties and the additional supervision she requires, Ms. Wysynski
would hire her again because she is personable, calm, intelligent and
thoughtful and the customers she serves like her and return to the store.

Medical and Psychological
Opinions

[212]     There are troubling
gaps in the medical evidence, with very little in the way of medical opinion
between the accident and the fall of 2003, when Ms. Meghji’s counsel organized
examinations by Dr. Landells and Dr. MacKean, and only the June 2004 report (and
cross-examination at trial) of an occupational therapist, but nothing in the
way of medical opinion beyond clinical records from Ms. Meghji’s time in
Toronto, between the middle of 2003 and early 2006.

[213]     Next,
there is little evidence from what might be properly called treating
physicians, with the bulk of medical and psychological opinion from experts
selected and instructed by counsel for the plaintiff. To some extent, this has
been necessitated by Dr. Zarzour’s intransigence in refusing to provide a medical-legal
opinion. I have not overlooked the evidence of Dr. Grimwood, about which I will
have more to say later.

[214]     Where
causation of injuries is in issue, and the bulk of the medical proof of a
plaintiff’s injuries is derived from experts retained and instructed by
counsel, a trier of fact must spend more time evaluating the evidence in order
to determine how much weight should be given to it. A physician who thoroughly
examines a patient soon after an accident, and who regularly follows that
patient with further examinations is in a better position to opine on causation
than is a physician who examines months or even years after an accident. Evaluation
of the expert opinion evidence is made more difficult in this case because each
expert has been provided with masses of documentary material generated by the
other experts, most of whom have been retained and instructed by counsel. A
trier of fact must at least consider whether providing this much material is
intended to influence each new expert’s opinion, and evaluate each expert’s opinion
in order to determine whether the opinion is the product of the expert’s
independent examination and thought, or has been swayed by the opinions of
others or their sheer volume, and, if so, to what extent.

[215]     At the
time of her accident, Ms. Meghji did not have a family doctor in Victoria. She
went to Dr. Grimwood on the recommendation of a woman unconnected with her
lawyers. Dr. Grimwood was criticized in cross-examination for not having
referred Ms. Meghji to the various specialists that he thought she might need
to see. Dr. Grimwood’s response was that, if he were to refer Ms. Meghji to a
specialist, it might take up to 12 months for her to get in to see the
specialist. He contrasted that to counsel’s ability to get almost immediate
access to a specialist on a medical-legal basis. I accept this implied
criticism of the medical delivery system from Dr. Grimwood and merely note
that it has led to greater difficulty in assigning the weight to be attached to
the opinions of specialists selected by counsel.

[216]    
Dr. Grimwood’s report is dated March 11, 2006. There is remarkably
little in it to indicate that any physical examination, as opposed to
discussion with Ms. Meghji, took place prior to the report. There is some
suggestion of an examination in Dr. Grimwood’s observation of post-injury
edema in the left arm, and reasonable range of motion in the shoulder. In his
tenth numbered item on the second page of his report, Dr. Grimwood says:

Probable closed head injury with
the problems of cognition, short term memory, depression, suicidal ideation,
job loss, loss of self-esteem, and decreased concentration. Fatigue and loss of
appetite also noted. These symptoms were elicited by psychiatric review in
February 2004. Selina also demonstrated limitation in working memory,
visual memory, verbal memory, visual processing speed, and heightened anxiety
regarding work. She had been placed on Celexa 20 mg a day.  [Emphasis added.]

[217]     No direct
opinion was tendered that flowed from the above-mentioned psychiatric review in
February 2004. The clinical records of Sunnybrook Hospital, which cover the
period before and after February 2004, have been produced and are subject to a
document agreement as part of Exhibit 20. Those records include two
consultation reports from a psychiatrist, Dr. Kirsh.

[218]      The
document agreement indicates that the hospital records are admissible for the
following purposes:

1.         Any
observation of fact reported is admissible of proof of that fact;

2.         That
any treatment prescribed was, in fact, prescribed as recorded or noted;

3.         Any
statements made by a patient, or any record, notation, or chart entry of any
statement made by a patient is admissible for the fact that was made, but not
for the truth of that statement;

4.         Any diagnosis or opinion,
whether recorded in any note, chart, consultation report, referral,
correspondence or other document is evidence of the fact that such diagnosis or
opinion was made, but not for the truth of that diagnosis or opinion.

[219]     The
document agreement therefore does not make admissible what Ms. Meghji told
Dr. Kirsh in 2004 or 2006 to prove that her complaints or symptoms were
real. It is not clear from Dr. Grimwood’s March 2006 report whether he has
elicited the same symptoms from Ms. Meghji, and is noting their consistency
with complaints made to another doctor on an earlier occasion, or he is merely
repeating what he has read in the material provided by Ms. Meghji’s lawyer. If
it is the former, the consistency would only be of some relevance if it were
significant to Dr. Grimwood’s opinion. If it is the latter, it is of no assistance
to the court. Reading Dr. Grimwood’s report, it seems more likely that he was simply
passing on what Dr. Kirsh had said in a consultation letter.

[220]     Dr.
Grimwood goes on to say that he has reviewed all the reports on this case, as
well as physical and emotional findings of Ms. Meghji. He does not state what
those physical and emotional findings are, nor does he list all of the reports
that he has reviewed. The opinions set out in Dr. Grimwood’s March 11, 2006,
report are therefore of little value. In evidence at trial, Dr. Grimwood said
that he could not imagine how there could not be some degree of brain injury
arising from an accident such as Ms. Meghji’s, where she was violently knocked
down by a car. He acknowledged that complaints of cognitive problems did not
arise until after Ms. Meghji moved to Toronto in 2003, but said that he is
not surprised that there was nothing in the emergency or hospital records in
the days immediately following the accident about the head injury because he
thought the focus would have been on the more obvious traumatic injuries.

[221]     Dr.
O’Breasail is a psychiatrist who saw Ms. Meghji for the first time in March
2006. He took an extensive history from her, which included her description of a
period of altered consciousness at the scene of the accident, her assertion
that she had a bump on the back of her head, and his understanding that she had
no immediate complaints of cognitive difficulties. Notwithstanding that and a
perfect Glasgow coma scale of 15, as recorded by the ambulance attendant at the
scene, he accepts that Ms. Meghji suffered a mild traumatic brain injury.
He says, however, it is difficult to state whether the cognitive difficulties
Ms. Meghji has experienced were related to the mild traumatic brain injury or
to his other diagnoses of chronic pain disorder and major depression.

[222]     Dr.
O’Breasail saw Ms. Meghji again in October 2006 and noted that her depression
and post-traumatic stress symptoms were improving. He saw her again in February
2007 and, in a rather more extensive report, reaffirms his opinion that
Ms. Meghji suffers from a chronic pain disorder flowing from the injuries
she suffered in the accident, that she continued to suffer depressive symptoms
of a significant level, notwithstanding improvement in her depression since he
first saw her, and that she likely suffered a blow to her head and had gone on to
present with many of the features characteristic of a traumatic brain injury.
Dr. O’Breasail points out there is considerable overlap in the symptoms of depression,
pain and traumatic brain injury, all of which have a negative effect on
cognition. In his last opinion dated April 2, 2009, Dr. O’Breasail confirms his
opinion of chronic pain disorder, a major depressive disorder (improved), mild
traumatic brain injury, and says that it is unlikely that there will be a major
change in Ms. Meghji’s condition in the future. He reaffirms that Ms. Meghji’s
cognitive difficulties are secondary to the mild traumatic brain injury and
also the major depression and chronic pain.

[223]     The
evidence of a blow to Ms. Meghji’s head is based upon her assertion that a day
or two after the accident, while still in hospital, she felt a bump on her
forehead. Mr. Kuoni corroborated this in his evidence as having observed a bump
on Ms. Meghji’s forehead.

[224]     Both were
cross-examined aggressively on these assertions, where it was established that
Ms. Meghji was unsure whether she had felt the bump with the front of her
hand or the back of her hand. There is no notation in the hospital records of any
such indication of injury.

[225]     Dr.
Youngash, the emergency physician who attended to Ms. Meghji immediately after
the accident, testified. Understandably, he recalled nothing of Ms. Meghji’s
emergency admission, and his evidence was based upon his entries in the
hospital records. He said that if there had been any swelling to Ms. Meghji’s
head, it would show to some degree 40 minutes after the impact. He interviewed
Ms. Meghji on her admission and on the basis of her responses, noted no
loss of consciousness. He examined Ms. Meghji’s scalp and noted that it was not
tender. He also noted that Ms. Meghji was alert. Based upon his questions
to Ms. Meghji, he noted that she had no complaint of head or neck pain.

[226]     Dr.
Youngash testified that if a patient reports symptoms of significant head
injury or had signs of significant trauma, he would ordinarily order a CT scan.
There is no reason not to order such a scan as cost is not a concern and CT
scans are available 24 hours a day. Indications that would favour ordering
a CT scan would include severe headache, significant amnesia before or after
trauma, vomiting, confusion or altered level of consciousness. Dr. Youngash did
not order a CT scan for Ms. Meghji.

[227]     Two
neurologists provided reports and testified. Dr. Krieger examined Ms. Meghji
at the request of her counsel in August 2006. He deferred reporting on his
examination until February 2007 because he wanted to see what Dr. Malcolm, the
neuropsychologist, and Dr. O’Breasail, the psychiatrist, would say following
their examinations.

[228]     Dr. Kemble
examined Ms. Meghji in March 2007 at the request of counsel for the defendant
Lee.

[229]     Dr. Krieger’s
opinion is that Ms. Meghji had a closed head injury with associated brief loss
of consciousness causing persistent and permanent mild traumatic brain injury
with related permanent changes in cognition, behaviour, emotions, energy level
and sexuality.

[230]     Dr. Kemble,
on the other hand, said it was probable that Ms. Meghji did not suffer a
significant closed head injury in the automobile accident, and that any ongoing
cognitive difficulties are more likely due to psychological problems rather
than organic brain damage and therefore Ms. Meghji’s cognition could improve as
her stress level reduces. Dr. Kemble said that there was no persuasive evidence
that Ms. Meghji lost consciousness as a result of the accident, and that her
reported memory problems immediately after the accident are as likely due to
shock as anything else.

[231]     Both
neurologists reviewed extensive reports and clinical records of other doctors
or professionals before arriving at their opinions.

[232]     In
determining what weight to give to the respective neurological opinions, I am
less inclined to favour Dr. Krieger’s opinion for the following reasons.

[233]    
Dr. Krieger’s overall presentation slipped over the line that divides
objectivity from advocacy in my view. As an example, on page 7 of his report,
he refers to the report of Ms. Edwards, the occupational therapist, in this
way:

The listing of residual symptoms
on page nine are accurate, as are the objective findings of pages 18-27. I have
reviewed the recommendations on pages 32-50 and agree with them.

[234]    
Whether or not the list of complaints reported in Ms. Edwards’
report are the same as reported to Dr. Krieger, the objective findings set out
in the 10 pages he endorses are far more detailed than anything described in
his report or in his testimony insofar as the type of examination he conducted.
Dr. Krieger’s prognosis continues the endorsement, without giving any
appearance of critical thought:

The Neurological Diagnosis listed
above are all permanent and are not expected to improve. I agree with the
patient’s primary physician who has indicated that Selina Meghji will not ever
be able to resume gainful employment. The quality of life this woman, and her
husband, will experience in the future has been negatively influenced by this
injury. All long term recommendations found in the recent Occupational Therapy
are necessary to help this woman cope with the long term effects of this
injury.

[235]     I
therefore approach Dr. Krieger’s opinion with caution.

[236]     Dr. Kemble’s
opinion is more balanced, it seems to me, and while he ultimately concludes
that he does not believe there was a closed head injury, he admits of the
difficulty in teasing out whether the symptoms presented by Ms. Meghji are
attributable to head injury or to anxiety, stress and other psychological
problems.

[237]     Whereas
Dr. Krieger conducted a mental status examination and found some problems with
Ms. Meghji’s ability to perform simple mathematical tasks and to remember three
objects over five minutes, Dr. Kemble decided not to conduct a similar
examination because Ms. Meghji had just been extensively evaluated by Dr. Malcolm,
the neuropsychologist, not long before Dr. Kemble’s examination and, as Dr. Kemble
phrased it:

Neuropsychometric testing is far
more detailed than any testing, which a Neurologist could perform.

[238]     Ms. Meghji
saw a third neurologist, Dr. Cameron, in October 2003. Counsel asserted litigation
privilege over any results of that attendance, and no report or any other
evidence flowing from Dr. Cameron’s examination was produced at trial.

[239]     Ms. Meghji
testified that she saw Dr. Cameron because of her headaches, although she said
this was in 2006. It is not at all clear on the evidence that there were any
sufficient complaints of symptoms that might have been attributable to a head
injury by October 2003 to warrant Dr. Cameron’s examination of Ms. Meghji for
such an injury. In my view it would be unfair to speculate that Ms. Meghji was
examined by Dr. Cameron for traumatic brain injury complaints or cognitive
difficulties flowing from a brain injury, as opposed to complaints of headache.

[240]     In
ordinary circumstances, I would agree that a claim of litigation privilege
should be sufficient explanation for the failure to produce evidence from an
expert who examined a party, and no inference adverse to that party should be
drawn from the failure to produce the evidence.

[241]     However,
where, as here, counsel has assumed control of medical management of a
plaintiff’s injuries, the circumstances are not ordinary.

[242]     Dr.
Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s
treatment, including referrals to specialists as he thought advisable. In this
case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s
counsel, largely because counsel were able to arrange examinations by medical
specialists much sooner than could Dr. Grimwood.

[243]     Where
counsel becomes actively involved in arranging treatment, or in treatment
decisions, or in selection of treatment providers to the extent that it becomes
difficult or impossible to determine whether any particular doctor is involved
for treatment purposes, or to advise counsel, the protective cloak of
litigation privilege becomes tattered.

[244]     In such
circumstances, counsel and the party who permit the line between treating
physicians and physicians retained to advise counsel to become blurred must
accept some risk that the protection ordinarily afforded by litigation
privilege might be lost.

[245]     Ms. Meghji
testified that she saw Dr. Cameron for headaches. In the face of that evidence,
I infer, from the refusal to produce evidence from Dr. Cameron, that any
opinion generated as a result of his examination of Ms. Meghji was not helpful
to the claims she makes in this trial. I also infer that, while examining for
headache, had Dr. Cameron observed any signs that suggested to him that
Ms. Meghji had suffered a traumatic brain injury in the accident, his
observations or opinion would have been produced at trial.

[246]     Ms. Meghji
has had extensive neuropsychological evaluations. Her counsel organized an
examination by Dr. Malcolm in April 2006, which involved two hours of interview
and nine hours of testing. Dr. Malcolm was concerned that Ms. Meghji’s
emotional state made the test results questionable and therefore recommended
that she have treatment for her emotional condition before being re-evaluated.

[247]     Dr.
Malcolm did re-examine Ms. Meghji over eleven and one-half hours in January
2007, and produced a written report and opinion. In May 2007 Dr. Krywaniuk,
a neuropsychologist, examined Ms. Meghji over three days, May 3, 4 and 5,
2007, for a total of 14.5 hours. He produced a report, all at the request of
the defendant, MoTH.

[248]     In March
2009, Dr. Malcolm again examined and tested Ms. Meghji over two days and
reported by way of updating his 2007 report which, combined, totals some 64
pages of test results, discussion and opinion.

[249]     At about
the same time, Dr. Krywaniuk re-examined Ms. Meghji over two days, March 19 and
April 1, 2009, for a further eight and three-quarter hours and produced a
subsequent report. Dr. Krywaniuk’s two reports total some 48 pages.

[250]     In addition
to those reports generated as a result of testing and examination, Dr. Strauss,
a neuropsychologist, reviewed reports and records, including Dr. Malcolm’s
first report, and provided her own eight page comment at the request of counsel
for the defendant Lee.

[251]     To
complete the neuropsychological reporting, Dr. Malcolm has produced a twelve
page reply to Dr. Krywaniuk, and a separate eleven page reply to Dr. Strauss.

[252]     Dr.
Malcolm’s testing of Ms. Meghji’s intelligence resulted in an IQ score of 98.
Dr. Malcolm predicted, based on his understanding that Ms. Meghji had
successfully completed a university undergraduate degree and had successfully
completed one or more courses at a post-graduate level, that Ms. Meghji’s IQ
should have been in the 120 range. Dr. Malcolm noted other discrepancies
between Ms. Meghji’s performance on other tests he administered and what
he would have predicted for her based upon his understanding of her occupational
and academic achievements. Dr. Malcolm concluded that the discrepancies were
consistent with the effects of either a complicated mild traumatic brain injury
or a mild traumatic brain injury (Dr. Malcolm acknowledged that the
“complicated” descriptor was falling out of favour in the profession),
operating together with what he felt were well-documented and already diagnosed
depression, and other emotional conditions.

[253]     Dr. Krywaniuk
conducted somewhat different tests of Ms. Meghji’s intellectual abilities and
arrived at a score of 96, which Dr. Krywaniuk said was the mid-average range of
IQ or equivalent. Dr. Krywaniuk was of the view that Ms Meghji’s academic
career would have implied to him an above-average or higher score but, on
reviewing other results of his tests that were not ordinarily susceptible to
the effects of brain injury, concluded that those results, which were similarly
mid-average or lower, were consistent with the IQ as measured by his testing
and inconsistent with the implied above-average or superior intelligence
suggested by Ms. Meghji’s pre-accident educational attainments. On balance, Dr.
Krywaniuk concluded that, if there were a significant loss of IQ or cognitive
ability, as suggested or implied by his test results where contrasted to what
would otherwise have been expected from Ms. Meghji’s pre-accident
achievements, there should have been a very substantial brain injury that would
have been evidenced by significant loss of consciousness, visible signs of head
trauma and/or likely radiological evidence of neurological impairment, none of
which he understood to be have been detected after the accident.

[254]     Generally,
Dr. Krywaniuk was of the view that the results of Ms. Meghji’s testing
generally were sufficiently variable that the better explanation for her test
results was either her emotional condition or reduced effort on her part, or
perhaps a combination of the two.

[255]    
Dr. Strauss did not test or examine Ms. Meghji but confined herself to a
review of Dr. Malcolm’s initial report and the methodology he employed as well
as his interpretation of his results. Dr. Strauss commented:

My impression is that (1) Dr.
Malcolm has misinterpreted the criteria for complicated mild Brain Injury, (2) Dr.
Malcolm has failed to appreciate the diagnostic limitations of
neuropsychological tests and (3) has not adequately excluded other explanations
in this case (e.g. compensation issues, her belief that she has suffered a head
injury and her expectations of deficits following such injury).

[256]     Illness prevented
Dr. Strauss’s from converting her draft report into a full medical-legal
opinion, and her death during the trial prevented her from attending to be
cross-examined. In spite of these difficulties, counsel have, commendably in my
view, recognized Dr. Strauss’s standing in her profession and agreed that her
draft report could be accepted in evidence.

[257]     Dr. Krywaniuk
and Dr. Strauss each comment in detail on the results of Dr. Malcolm’s
testing and, more to the point, his interpretation of those results.
Additionally, there are criticisms that some of the tests Dr. Malcolm administered
were inferior to other tests that were available to him.

[258]     In his
separate replies, Dr. Malcolm takes up the challenges and responds to them, in
as much detail as the criticisms have been levelled against him.

[259]     In
addition, skilled counsel have spent days in cross-examination of
Dr. Malcolm and Dr. Krywaniuk, probing the merits of the various
neuropsychological tests administered, the range of interpretations open on the
results of the tests administered, and the potential for deliberate or
unintentional skewing of test results based upon Ms. Meghji’s effort or lack of
effort, fatigue or her emotional condition from time to time. Much was made in
cross-examination over the ability to predict full-scale IQ from academic or
occupational attainments, and the value of attempting to contrast such
predictions to measurements derived from intelligence testing.

[260]     Debate
over whether there has been significant loss of intelligence or cognitive
ability, while of considerable importance to the neuropsychologists and the
counsel who cross-examined them, is of partial assistance in resolving the
question of the nature and extent of Ms. Meghji’s injuries. The other part of
the question can be resolved by reference to the evidence of witnesses such as Dr.
Ali and Mr. Brozak. If Ms. Meghji is not the same person she was before
the accident, if the differences are found to be attributable to the accident,
and if one possible explanation for those differences can be explained by
neuropsychological test results consistent with brain injury, it becomes useful
to inquire what other explanations there might be for the differences noted by
people such as Dr. Ali and Mr. Brozak.

[261]     Each of
the defendants has attempted to explain the apparent changes in Ms. Meghji
by reference to external events for which neither defendant can be faulted,
such as the loss of her job at Dr. Ali’s clinic in early 2004, which the
defendants say was a result of Ms. Meghji’s emotional state and not any effect
of a brain injury, or the falling out between Ms. Meghji and her sister, Nimet,
which may or may not have involved a financial dispute between Mr. Kuoni and
Nimet.

[262]     The
chronology or sequence, as I understand it, is that Ms. Meghji spent the first
10 months or more after the accident focussed on her physical injuries, the
surgeries, her recovery from those surgeries and her physical rehabilitation.
Although there was some attention paid to her emotional state through
counselling, the primary focus was on her physical injuries.

[263]     Ms. Meghji
was not challenged in an intellectual way until she went to work at Dr. Ali’s
clinic in Toronto in November 2003. Dr. Ali’s description is quite graphic as
to the complete failure of that attempt to perform at a job that should not
have tasked Ms. Meghji much, if at all, before the accident.

[264]    
The referral to Dr. Kirsh, a psychiatrist, in February 2004, is of some
significance. There is no opinion from Dr. Kirsh. What there is are several
consultation letters that appear in the clinical records of Sunnybrook &
Women’s College Hospital. Those records are the subject of the document
agreement referred to earlier, on which basis I accept that in February 2004,
Dr. Kirsh recommended that Ms. Meghji be referred to the Traumatic Brain Injury
Program at SWCHSC-Sunnybrook Site so that she could have a comprehensive
assessment of her reported cognitive deficits to determine the extent to which they
may be secondary to a brain injury.

[265]     I conclude
that Ms. Meghji lost her job at Dr. Ali’s clinic because she was incapable of
performing a job that a Grade 10 graduate ought to have been able to perform,
and that that lack of capacity was not solely because of her emotional state at
the time.

[266]     Carrying
on with the chronology, it was not until about the middle of 2004 that Mr. Kuoni
put up $10,000 toward the acquisition, initially on a lease, of premises that
Ms. Meghji’s sister, Nimet, wished to use to operate her chiropractic clinic. I
accept that in the early fall of 2004, Mr. Kuoni went on a 30 day meditation in
the United States, having satisfied himself through discussion with Dr. Kirsh
that it was safe to do so, and that Ms. Meghji made a suicide attempt of sorts
while he was gone.

[267]     Through
the fall of 2004 and into 2005, Mr. Kuoni worked at Nimet’s chiropractic clinic
and, from time to time, Ms. Meghji tried to assist, with observable errors and
lack of ability.

[268]     It was not
until late summer or early fall 2005 when the lease on the clinic premises
expired and it was time to make a purchase investment that Nimet refused any further
financial input from Mr. Kuoni and, perhaps at the same time, had a falling out
of some sort with Ms. Meghji.

[269]     While the
estrangement between Ms. Meghji Nimet was no doubt painful and did last for
some years, I find, based largely on the timing of its onset, that it was not a
significant explanation for Ms. Meghji’s observed deficits or changes.

[270]     Based upon
the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms.
Meghji during this time, as supported by similar observations from Ms. Chauncey’s
and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as
a teaching assistant before the accident, I conclude that Ms. Meghji has
more likely than not suffered a brain injury in the accident, and that the
combination of the effects of the brain injury and the depression and chronic
pain disorder, which I also find was caused by the accident or flows from
injuries suffered in the accident, are so inextricably intertwined that they
cannot possibly be disentangled.

[271]     In all of
the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for
non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment
of life.

SPECIAL DAMAGES

[272]     The
plaintiff presented claims totalling $38,800 from accident to trial. The claims
are made up of a mixture of treatment costs, for psychological counselling and
exercise therapy, for example, and for furniture and other items.  The
furniture category can in turn can be broken down between modifications to the
plaintiff’s home to improve her mobility or safety in the immediate
post-accident period, and office furniture for the plaintiff’s home purchased
some years later. Other claimed items include regular payments for prescription
medications as well as orthotics, eyeglasses, and school textbooks.

[273]     Counsel
have done a commendable job of presenting these claims — or disputing them —
without bogging down the trial in minutiae.

[274]     Where a
person has been put to expense as a result of the negligence of another, that
person ought to be made whole, so long as the expenses claimed are reasonable,
reasonably incurred, and causally connected to the negligence.

[275]     I have
reviewed the expenses set out in Exhibit 6 and the evidence in support of or
against the awarding of each of the expenses, such as it is. Rather than deal
with each of the expenses for which an award will be made, it is more efficient
to deal with those expenses that I disallow, with brief reasons for each. I
will refer to each by date and page number reference in Exhibit 6.

[276]     The July 28,
2003, claim for case management by the occupational therapist Ms. Edwards is
reduced by $127.00, that being the cost of a work place assessment that took
place in July 2003. By that time, Ms. Meghji had declared her intention to move
to Toronto, her husband had moved to Toronto, and Ms. Meghji had only remained
behind because the infection in her elbow required her to remain for further
treatment. It was not reasonable to assess a work place to which Ms. Meghji had
no present intention of returning.

[277]     The
September 11, 2003 massage therapist account at p. 47 is disallowed. I
understand the evidence to be that massage was recommended by the plaintiff’s
sister, herself a chiropractor, and it is not reasonable that the defendants be
obliged to pay for that treatment, particularly when, at the same time, the
claims for physiotherapy at St. George Physiotherapy Clinic are allowed.

[278]     The
November 17, 2003 claim for orthotics and shoes at p. 53 is reduced by $560.00
to reflect the estimate of the cost of orthotics and shoes arrived at by
Ms. Edwards in her “Cost of Future Care” report. The evidence of
Ms. Edwards persuades me that the amount charged by the plaintiff’s
sister, who built the orthotics and shoes, is excessive.

[279]     The
November 19, 2003 claim for case management by Ms. Edwards at p. 54 is cut
in half, and allowed at $63.75, on the basis that Ms. Meghji had returned to
Toronto by the end of October 2003. The Edwards’ claims for case management on
November 30, 2003 and December 16, 2003, at pp. 55 and 56 are disallowed for
similar reasons, as I conclude that whatever Ms. Edwards was doing while
Ms. Meghji was living in Ontario had more to do with work done for counsel
than for Ms. Meghji.

[280]     The claim
of December 17, 2003 for fitting of soft lenses at Prince Arthur Eye Associates
at p. 57 is disallowed. There is no sufficient causal connection between the
accident and the fitting of soft lenses that I can determine from the evidence.

[281]     The
January 5, 2004, claim for massage therapy at p. 59 is denied as having an
insufficient basis in the evidence showing that it was appropriate treatment
recommended by a treating physician and not duplicated by other treatment.

[282]     The
February 17, 2004 claim for nerve fibre analysis at Prince Arthur Eye
Associates at p. 63 is disallowed as having no apparent connection to the
accident disclosed in the evidence.

[283]     The April
30, 2004, massage therapy account at p. 65 is disallowed for the reasons given
earlier with respect to earlier massage therapy accounts.

[284]     The Derma
Spa massage therapy account of June 15, 2006, at pp. 77-78 is disallowed for
the same reasons.

[285]     The July
9, 2006, claim of Ms. Edwards at p. 85 is disallowed as appearing to be more in
the nature of advice to counsel, in which case it can be argued as a
disbursement, rather than an expense incurred by the plaintiff, or on her
behalf. The balance of Ms. Edwards’ charges at pp. 88, 89, 98, 103, 107, 113,
117, 121, 130 are disallowed for the same reasons. While case management may
have been reasonable and reasonably necessary in the beginning, I conclude that
from 2006 onward, the case management charges were in the nature of advice and
assistance to counsel or to prepare to give an opinion or testimony, but not a
legitimate expense flowing from the accident.

[286]     The August
31, 2006, textbook charge at p. 90 is disallowed as having no discernible
causal connection to the accident.

[287]     The
September 6, 2006, Samsonite bag purchased at p. 93, the September 18,
2006, cell phone purchase at p. 94 and the September 19, 2006, University of
Victoria Bookstore (“UVic”) school supplies purchase at p. 95 are disallowed
for the same reasons.

[288]     The same
applies to the November 10, 2006, UVic Bookstore expense at p. 106.

[289]     On
November 21, 2006, there are Monk Office supply charges at pp. 110 and 111
totalling $1,151.45. I understand that the items represented in these charges
were purchased to make the plaintiff more comfortable in a home office
environment. It is not clear to me that a home office environment was a
reasonable expense reasonably connected to the accident or to Ms. Meghji’s
injuries, or that a defendant or defendants who were negligent in 2003 ought to
be faced with such an expense three and one-half years later.

[290]     For the
same reasons, the chair claimed on December 13, 2006, at p. 115, is
disallowed.

[291]     The
December 20, 2006, charge for a light, which I understand to have been
recommended to help the plaintiff with Seasonal Affective Disorder is
disallowed as I do not have sufficient evidence that the plaintiff suffered
from Seasonal Affective Disorder as a result of the accident, or that such an
item was reasonably necessary to treat the plaintiff’s psychological
conditions.

[292]     The
January 8, 2007, UVic Bookstore claims at p. 129 are disallowed as
insufficiently connected to the accident.

[293]     The
October 2, 2007, massage therapy account at p. 153 is disallowed as
insufficiently connected to the accident.

[294]     The
prepaid cellular phone minutes on December 31, 2008, at p. 174 and March 27,
2009, at p. 179 are disallowed as having no reasonable connection to the
accident.

[295]     Of the
$38,800 presented, I understand that $6.29 has been withdrawn in argument and
the plaintiff acknowledges that the defendant Lee has already paid $3,215.13.
Those deductions, together with the deductions I have just outlined, leave a
net award for special damages at $25,212.00, and the defendants are ordered to
pay that amount to the plaintiff.

COST
OF FUTURE CARE

[296]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.),
McLachlin J., as she then was, said of future care claims, at 78:

The award for future care is
based on what is reasonably necessary on the medical evidence to promote the
mental and physical health of the plaintiff.

[297]    
At 84, in discussing the Manitoba Court of Appeal in MacDonald v.
Alderson, [1982] 3 W.W.R. 385 (Man.C.A.), McLachlin J. said:

The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable. On the latter point, Dickson J. stated in Andrews [Andrews
v. Grand & Toy, [1978] 1 W.W.R. 577] at p. 586:

 An
award must be moderate, and fair to both parties … But in a case like the
present where both courts have favoured a home environment, “reasonable” means
reasonableness in what is to be provided in that home environment.

This then must be basis upon
which damages for costs of future care are assessed.

[298]     Milina
was a case involving catastrophic injury.

[299]     As has
already been pointed out, to some considerable extent, the “medical
justification” aspects of this case have been reversed. That is, instead of
physicians prescribing or recommending, the author of the cost of care report,
in her capacity as case manager, has either recommended an item or a treatment,
or has accepted and adopted an item or treatment recommended by others who have
not been treating physicians or examining physicians.

[300]     The
plaintiff argues that medical justification does not require a medical doctor
to prescribe or to recommend, but if there is a medical diagnosis of a
condition, then others, being health practitioners in various fields, may have
useful opinion evidence to assist a court in determining a plaintiff’s future
care needs. The plaintiff relies there on the decision of Madam Justice L. Smith
J. in Frers v. De Moulin, 2002 BCSC 408.

[301]    
In that decision the trial judge said at para. 191:

191      … Insofar as she
[occupational therapist who authored the cost of care report] is making
recommendations for rehabilitation support and case management, I can consider
those recommendations without further support. However, with respect to other
matters such as psychological counselling, speech and language therapy and
physiotherapy, her recommendations do not carry the same weight and I will
refer instead to those of Dr. Van Rijn and Ruth Casanova. I do accept that Ms.
Landy [report author] is qualified to provide an opinion as to the reasonable
cost of the enumerated services, and I will accept her valuations except where
otherwise stated.

[302]     Reviewing
the reports of the various physicians, I can see that Dr. Landells
supports the use of orthotics, the benefit of ongoing exercise, and as a
reasonable consequence of future knee replacement and possible shoulder
replacement surgery, some allowance for rehabilitation costs and other expenses
that might flow from those surgeries if they were to occur.

[303]     Dr.
MacKean supports regular exercise and Dr. Ehrenburgh supports cycle therapy in
a predicted schedule she sets out, up to the year 2015.

[304]     I have
already indicated that I view Dr. Krieger and Dr. Grimwood’s endorsement of Ms.
Edwards’ recommendations without any apparent independent analysis to reduce
the value of their endorsements substantially.

[305]     Mr. Kyi,
an occupational therapist who saw Ms. Meghji in 2006 and again in 2009, made
some recommendations very similar to those made by Ms. Edwards, and then
in his second report, elected to defer to Ms. Edwards’ recommendations.

[306]     Milina
makes it clear that every effort must be made to avoid duplication between
awards for cost of future care and awards for loss of future income. To the
extent that items recommended as part of a future care claim are items that
might ordinarily have been purchased in any event out of the plaintiff’s
earnings, a court must be careful to avoid duplication. Duplication can be
avoided by awarding only the increase in costs beyond those that would
ordinarily have been incurred by a plaintiff if an accident had not occurred,
and by awarding as close to full indemnity for future earnings loss as is
reasonable. Duplication can also be avoided by awarding reasonably full
indemnity for the future care expenses and then reducing the future earnings
loss claim to reflect that portion of future income that would ordinarily have
been spent on items that have been awarded as part of the future care claim.

[307]     As
McLachlin J. pointed out in Milina, which method is best to avoid
duplication should be selected on the basis of the evidence presented.

[308]     I do not
consider that I have evidence on which to make a choice of method with
sufficient confidence. The recommendations put forward by Ms. Edwards do not all
attempt to account for what the plaintiff might otherwise have spent on some
items that might ordinarily be found in one’s home, or to outline what
increased costs, if any, she might incur as a result of her injuries. An
example would be cost of footwear, furniture for a home office, and other
things that the plaintiff might ordinarily be expected to buy out of earnings
over her lifetime. I prefer the increased cost approach in this case, and I
will attempt to identify those goods or services that I find should be
compensated, and where I have confidence that Ms. Edwards has provided an
increased cost of the item or service.

[309]     Another
problem faced by the manner in which this claim was put forward was that it
deliberately ignored, insofar as claims for ongoing prescription medication
expenses are concerned, the PharmaCare program in British Columbia. The
argument put forward is that it is not clear that PharmaCare will last for the
rest of Ms. Meghji’s life, as government could easily end or substantially alter
the program.

[310]     While that
might be true, to make an award as if PharmaCare did not now exist would result
in a windfall to Ms. Meghji.

Assistive
Devices

[311]     Turning to
the report of Ms. Edwards and dealing with the specific items, I have concluded
that of the assistive devices claimed, the cost of $25.89 for the whiteboard
and associated markers as reasonable as is its annual replacement.
Ms. Meghji has already acquired the whiteboard and says that she finds it
useful and her demonstrated organizational and memory problems justify this
item medically.

[312]     The claim
for the cost of an iPhone, with the associated annual contract, is a different
matter. Ms. Meghji already had a Palm Pilot at the time of the accident.
She was using Mr. Kuoni’s Palm Pilot, he having turned it over to her when
her watch broke. Ms. Meghji said she used the Palm Pilot and utilized its
calendar function, along with its watch, alarm and timer functions before the
accident.

[313]     Cellular
telephones and their enhanced cousins, so-called smart phones, are sufficiently
ubiquitous in 2011 that, together with the fact that Ms. Meghji was already
employing a Palm Pilot at the time of the accident, this claim is not justified
as a cost beyond that which the plaintiff would have ordinarily incurred and is
not allowed.

[314]     The $32.82
claimed for an accordion file to organize paperwork is not something that goes
beyond or is in any way significantly different from the needs of any person to
organize documents at home and is not allowed.

Safety Aids and Appliances

[315]     The next
classification is safety aids and appliances. Here, I am hampered by the lack
of evidence as to whether what is claimed is the additional cost added on to
the basic cost of the items mentioned:  kettle, slow cooker, toaster oven and
coffee maker. I agree the auto switch-off feature is medically justified as Ms.
Meghji does have problems remembering to switch off appliances and that does
present risks.

[316]     On this
category, I accept the kitchen timer at $14.68 with a five year replacement, as
medically justified and, with respect to the kettle, slow cooker, toaster oven
and coffee maker, allow an admittedly arbitrary $10.00 per item, for a total of
$40.00 every five years to reflect an assumed increase in costs for the fully
automatic switch off feature. No award is made with respect to the microwave
oven because it appears to me to be a standard feature in most, if not all,
kitchens.

Position/Splinting
Aids

[317]     The next
item is position/splinting aids. I accept the high back Obus Forme and fast
wrap brace as claimed at $163.84 for the former and $90.39 for the latter, both
to be replaced every two years.

Mattress and Pillow

[318]     The claim
for the bed or sleep set is presented as the differential between a regular
queen size sleep set and what Ms. Edwards’ says Ms. Meghji requires for back
pain and spasm. This is medically justified in my view and is awarded at
$3,107.54, with a ten year replacement. The same holds for the pillow at
$112.99, with a two year replacement cycle.

Support
Footwear and Orthotics

[319]     I agree that
orthotics are medically justified based upon Dr. Landells’ opinion. They are
allowed at $580.00 per year. I do not have evidence as to the extent to which
the amount claimed for supportive footwear exceeds what Ms. Meghji would
reasonably have paid for footwear if no accident had occurred. In my view it
would be unfair to Ms. Meghji to award nothing and unfair to the defendants to
award the claim as presented. Again, arbitrarily, I award $200.00 per year
ongoing for the additional cost of supportive footwear.

Bathroom
Safety Aids

[320]     The amount
claimed for bathroom safety aids is awarded with the exception of the bath mat
as Ms. Meghji has testified that she refuses to use one. These items have
already been dealt with as special damages, so here, the award is for the
replacements needed every five years, according to Ms. Edwards, at $118.50 for
wall bars, $154.66 for a tub rail, and $93.73 for a handheld shower.

Rehabilitation
Aids

[321]     As to
rehabilitation aids, the hot and cold reusable packs for $33.58 and annual
replacement are allowed; the TENS machine and accessories are not allowed, as I
have little or no medical evidence upon which the TENS machine has been
justified, and, on balance, I conclude that this is something that Ms. Meghji
might spend either a portion of her income loss award or her non-pecuniary
damages to purchase if she wishes it. The balance of the rehabilitation aids
are not awarded, as I assume such things will be supplied with the gym
membership already allowed.

[322]     Dr.
Landells has mentioned the possibility that Ms. Meghji will require a knee
brace and knee injections. Neither has yet been needed, but there is a real
possibility that either or both will be needed. It is not possible to predict
when the knee brace will be needed or when or how often the injections will be
required. A fair award for both would be $3,500.00 on a one time basis.

[323]     There is a
real possibility that Ms. Meghji will require knee replacement surgery, and
perhaps more than one surgery. Such surgery will require an increase in
physiotherapy, and the acquisition of some mobility and other aids for
relatively short periods. The amounts claimed in Ms. Edwards’ report are, in my
view, excessive and unnecessary, in that it is not demonstrated to be
reasonably necessary that someone facing knee surgery purchase a walker, a
wheelchair, a wheelchair lift for a vehicle or a lift and recline chair.
Walkers and wheelchairs are available for rent, and the need for a wheelchair
lift or a lift and recline chair are, in my view, speculative at best. There
will be, in all likelihood, a need for a raised toilet seat, a bath lift and
other aids such as the reacher, shoe horn, etc. On a one-time cost basis and
having recognized that the award will be payable now, while the need may be
sometime in the future, $2,000.00 is reasonable.

Medications

[324]     This claim
is presented as if the PharmaCare program did not exist. The PharmaCare program
does exist and it would be wrong for this court to ignore it. It is difficult
to estimate in the absence of evidence just what Ms. Meghji might have to pay
before PharmaCare takes over and indemnifies her fully, as that depends in part
on Mr. Kuoni’s annual income. The evidence of Mr. Kuoni’s income ranges from
$5,800 in 2002 to $16,300 in 2007. There is an anomalous year in 2006 where his
income was $56,500 and no evidence of his income in 2008.

[325]     I am
assuming that, for the purposes of this portion of the award, the family income
of Ms. Meghji and Mr. Kuoni does not exceed $30,000 and will not in future. I
do so on the basis that Ms. Meghji’s employability is restricted and Mr. Kuoni
retired long ago on modest savings. That would expose Ms. Meghji to $900 per
year in drug costs before PharmaCare totally indemnified her, as I understand
it. Medications are, therefore, allowed at $900 per year, for life.

Miscellaneous
Aids and Items

[326]     The
miscellaneous aids I view as dubiously supportable under the medically
justified rubric, and I consider that both ought better to be purchased out of
future wages or non-pecuniary damages. No award is made for either the closet
organizers or foldable shopping cart.

[327]     The
amounts claimed for home office aids are not allowed as the evidence is that
Ms. Meghji has used the chair already purchased to do a little computer
internet surfing and some reading, but there is a distinct lack of evidence
that Ms. Meghji spends any considerable time working in a home office
environment either to attempt to earn an income or in an attempt to preserve or
enhance her cognitive abilities. Nothing is allowed for home office aids.

Physiotherapy
and Exercise Programme

[328]     The gym
membership is allowed at $444.00 per year, on the basis that the medical
evidence of Dr. Landells and Dr. MacKean persuades me that ongoing regular
exercise is necessary for Ms. Meghji to preserve her mobility.

[329]     The amount
claimed for ongoing physiotherapy at $540.00 per year is allowed as I am
persuaded by the medical evidence that this is medically justified. The amount
claimed for massage therapy is not allowed, partly on the basis of Dr. Vincent’s
evidence that not much benefit comes from it. The $540.00 per year for a pool
program is allowed as it is, like the exercise program, necessary in my view
for Ms. Meghji to maintain her strength and conditioning.

Counselling

[330]     As to the
psychological report, I accept Dr. Ehrenberg’s opinion that six to eight
sessions would have been required and I assume were required in 2010.
Thereafter, five sessions per year for the years 2011 through the end of 2015
at $150.00 per hour, the amount stated by Dr. Ehrenberg, are awarded.

[331]     I make no
allowance for family counselling or sexual health counselling as the medical
justification is lacking in the evidence.

Home Support

[332]     As a
reflection of Ms. Meghji’s physical problems, as well as the additional
problems her cognitive and emotional difficulties present, it seems to me that
the home support claim is medically justified.

[333]     The claim
for home support, primarily for cleaning, includes two hours per week with
additional amounts while Mr. Kuoni is travelling up to Meghji’s age 58 and Mr.
Kuoni’s age 75. The amount presented is to replace Ms. Meghji’s contribution to
these activities, and recognizes that Mr. Kuoni shares in these duties, at
least when he is not out of the city on a meditation program. The present value
of this claim, which I accept, is $36,778.25.

[334]     Ms. Meghji
claims for home support of 5 hours per week from her age 58 onward, arguing
that Mr. Kuoni will be 75 when she is 58, and his ability to continue to do the
cleaning chores he has done will be significantly reduced. I agree with this
submission, and award the present value of household services after Ms.
Meghji’s age 58 at $45,103.16

[335]     There are
also claims for increased house cleaning for three one-year periods following
surgery that it is anticipated Ms. Meghji will require. These claims are
accepted, the present value of which totals $4,658.50.

[336]     The total
present value of the future cost of care for Ms. Meghji is $181,219.99. The
calculations and discount factors supporting this figure are provided in Appendix
A to these reasons.

[337]     This total
must be evaluated with a view to the contingencies of life. In my view, there
is little likelihood that the amounts claimed will increase because Ms. Meghji
consumes more goods or services than Ms. Edwards has predicted. I think the
reverse is far more likely to occur, and that Ms. Meghji will consume
considerably less than predicted, in part because she does not strike me as
someone who would use an item or a service unnecessarily, and partly because
some of the replacement schedule predicted by Ms. Edwards for things like bath
bars, mattress, safety aids and the like appears more frequent than might
reasonably be expected if Ms. Meghji were spending her own money.

[338]     The same
cannot be said for all of the items for which an award is made under this head.
On balance, I conclude that an award for future care costs that does fairness
between plaintiff and defendants should be $150,000, and I award that amount.

INCOME
LOSS: ACCIDENT TO DATE OF JUDGMENT

[339]     Ms. Meghji
had about seven years from her graduation in 1996 from York University to the
accident in which to establish an employment pattern. In 1996 and 1997 she
worked at a naturopathic clinic in Toronto, earning $19,500 in 1996 and just
under $18,000 in 1997.

[340]     In 1998,
Ms. Meghji travelled to India with Mr. Kuoni. Her earnings that year were
around $4,000, divided between employment insurance and social assistance.

[341]     In 1999,
Ms. Meghji spent part of the year in Switzerland with Mr. Kuoni after his
mother died there, and then Mr. Kuoni and Ms. Meghji moved to Victoria.
Ms. Meghji’s reported income that year was under $200.

[342]     In 2000,
Ms. Meghji started to work for Shaw on a part-time basis in Victoria. She
earned $11,000 that year.

[343]     In 2001,
Ms. Meghji had her best earnings year, $25,600, working at Shaw. Ms. Meghji
quit the job at Shaw on December 24, 2001 to accompany Mr. Kuoni to
Thailand.

[344]     In 2002,
Ms. Meghji earned about $9,500 from Shaw and another $1,500 from the University
of Victoria working as an academic assistant. The Shaw job did not start until
September 2002 and the academic assistant position similarly related to the
fall of 2002.

[345]     In July
2002, Ms. Meghji applied to Camosun College to enter the computer programming
program there. In the same month, she applied to Camosun College to enter their
support care worker program, and at the end of July, she applied, again to
Camosun College, for admission into their nursing program.

[346]     Ms. Meghji
was accepted into the home support care program at Camosun College to start
September 2002 but elected instead to take up the employment with Shaw on a one
year contract.

[347]     At trial,
Ms. Meghji said that her goal was to work for Shaw until she was admitted into
the nursing program at least, and continue to work part-time for Shaw in the
first couple of years of her nursing program. She said she would gradually wean
herself off the Shaw work as the nursing program became more demanding, but
felt that in the first year or two she would be able to work part-time at Shaw
because her previous academic credentials would make the nursing program less
demanding.

[348]     The
defendants take the position that Ms. Meghji was much less goal-oriented than
she presented at trial. They point particularly, in cross-examination, to
several requests made by Ms. Meghji for academic concessions in 2001 and 2002.
These concessions were sought for a variety of reasons. Ms. Meghji said that
she applied to withdraw without academic penalty from one math course because
of illness, and from another because she had decided that she no longer wished
to pursue computer programming as an academic discipline. This latter
withdrawal occurred just months before Ms. Meghji applied to Camosun College
for admission into its computer programming program.

[349]     The
defendants point as well to the fact that Ms. Meghji had spent a fair amount of
time travelling with Mr. Kuoni.

[350]     Mr.
Kuoni’s retirement was taken up largely with his pursuit of meditation. As Mr.
Kuoni progressed in that discipline, he rose to the teaching or instruction
level. That not only permitted him, but to some extent required him, to travel
internationally to spend 30 days or more at a time conducting meditation
courses or sessions.

[351]     Ms. Meghji
was not as advanced in meditation as was Mr. Kuoni but was herself adept. She
often accompanied Mr. Kuoni and either attended programs as a student or served
in some capacity in the program.

[352]     Ms. Meghji
and Mr. Kuoni had been together since 1996 and married in Victoria in November
2001.

[353]     Both Ms. Meghji
and Mr. Kuoni agree that, as their relationship developed, Mr. Kuoni made it
clear that his financial circumstances were not such that he could afford to
support Ms. Meghji and their agreement was that she would have to be
economically independent and self-sufficient. Both Ms. Meghji and Mr. Kuoni
agreed that they could, and preferred to, live simply and I infer that they had
no need for large annual incomes between them in order to be comfortable.

[354]     Ms. Meghji
presented her claim for income loss, accident to trial, on two alternate bases:
the first is that she would have entered nursing school in September 2005,
graduating four years later in 2009. She argued that she would have earned a
Shaw income of $23,000 per year until September 2005. While in nursing school,
she would have continued to earn some part-time income working for Shaw, which
she put at $10,000 per year, and on graduation from nursing, she would have
begun to earn $4,000 per month, rising within a year to $5,000 per month.

[355]     The
plaintiff’s alternate approach is to assume that she did not pursue a nursing
career, but remained at Shaw Cable, where she assumes a promotion to a
supervisory position in January 2004, and an income of $40,000, rising to
$55,000 per year by 2010. The income loss there, after deducting 18% income
tax, amounts to $347,000.

[356]     Both
approaches assume full-time pursuit by Ms. Meghji, either of a nursing
education or employment. The defendants respond by pointing to Ms. Meghji’s
earnings history and the frequent and lengthy gaps in her earnings from
university graduation to the accident. They also point to Ms. Meghji’s
applications in July 2006 to three different Camosun College programs as
evidence that she remained undecided about her future and was not yet committed
to any particular career path or even interest.

[357]     Also
relevant to this question are the occasions in 2001 and 2002 when
Ms. Meghji sought academic concessions from the University of Victoria in
order to be permitted to drop courses without academic penalty. She dropped one
course because of illness and another because she decided that she no longer
wished to pursue her studies in computer programming. That decision was made
just months before she applied to Camosun College for admission into its
computer programming program.

[358]     The
defendant MoTH argues that Ms. Meghji has not proven anything beyond a 10 month
income loss after the accident that is causally connected to the accident as
opposed to the decision to move to Ontario, and intervening unconnected sources
of depression, anxiety or other income impairing conditions. MoTH suggests
$27,000 in past income loss.

[359]     The
defendant Lee is somewhat more charitable, although discounting entirely the
prospects of a nursing career. Instead, the defendant Lee says that a more
realistic approach would be continuing at Shaw Cable, but without the
promotions assumed by the plaintiff. After factoring in interruptions for
travel and attendances at meditations, the defendant Lee suggests $75,000 as an
appropriate past income award.

[360]     All
figures are after deduction for income tax.

[361]     Ms. Meghji
needed to work: she did not wish to be supported by Mr. Kuoni and, in any
event, he was unable to provide for both of them in the long term. I accept
that Ms. Meghji had a keen interest in nursing as a career at the time of the
accident, but do not accept that that would have necessarily translated into
the successful completion of a four year nursing program for a long-term career
in nursing.

[362]     I accept
that, before the accident, Ms. Meghji had an ability to successfully complete a
nursing program, but there are lingering doubts about her long-term motivation.
Ms. Meghji had many interests in the past and not all of them had held her
attention in the long-term.

[363]     Mr.
Frewer’s evidence is reasonably clear that Ms. Meghji was not, at least in his
eyes, management material, nor was she likely to be selected for the sales job
for which she had interviewed just prior to the accident. Ms. Meghji’s highest
and best potential, from a Shaw Cable perspective, was in a supervisory
capacity earning between $45,000 and $55,000 per year.

[364]     That
capacity, however, had its own risks. Mr. Frewer said that it was unusual that
Ms. Meghji had been rehired by Shaw after quitting in December 2001 to
accompany Mr. Kuoni on a meditation retreat in Thailand.

[365]     Mr. Kuoni
would have, in all likelihood, continued to travel internationally for a month
or more at a time in order to pursue meditation either as a teacher or a
student. Ms. Meghji, no doubt, would have wished to accompany him, if not to
all of these sessions, then at least enough that her long-term employment at
Shaw in a supervisory capacity would likely have been threatened.

[366]     That,
coupled with Ms. Meghji’s history of unsettled employment and changing
vocational interests, takes the assessment of accident to judgment income loss
out of the realm of simple calculation.

[367]     In the
seven years before the accident, Ms. Meghji had averaged just under $13,000 in
pre-tax income on an annual basis.

[368]     It has
been eight years since the accident during which time Ms. Meghji earned just
$2,900 in 2004 working at Mr. Ali’s clinic, and another $8,300 in 2008 working
at the jewellery store. That was part of a year, and Ms. Meghji’s actual income
for 2009 and 2010 is not evidence as she testified in mid-2009. It is
reasonable to approach the past loss of earnings for earning capacity on the
basis of Ms. Meghji’s best year at Shaw Cable, $26,000, and to factor in the
possibilities, which I conclude are high, that Ms. Meghji’s earnings over the
last eight years would have been interrupted for significant periods of travel
or while she pursued other educational goals. I conclude that an award of
$130,000 would do justice between the plaintiff and the defendants with respect
to lost income to date. From that should be deducted $30,000, being actual
earnings, accident to date. I arrive at that figure, which is net of income
tax, by notionally attributing $14,000 per year to Ms. Meghji’s 2009 and 2010
earning capacity at the jewellery store which, in turn, is an extrapolation
from the actual $8,300 she earned in 2008 working part of the year. After tax,
that amounts to about $11,500 per year which, added to actual earnings in 2008
and in 2004, adds up to just under $33,000, which I have rounded down to $30,000.

[369]     The net
result then is $100,000 past loss of earnings or earning capacity, after
deductions for income tax.

LOSS
OF FUTURE EARNINGS

[370]     Ms.
Meghji’s ability to earn an income has been significantly impaired by the
injuries she sustained in the accident. Her residual physical limitations are
supported by the medical evidence and by the report of Mr. Kyi. Her cognitive
problems are similarly well supported in the evidence.

[371]     The
combined effect of the physical and cognitive difficulties caused by the accident
have substantially reduced the employment and vocation options open to
Ms. Meghji to the point where Mr. Nordin, a vocational rehabilitation
consultant who assessed Ms. Meghji, expressed some surprise that she was
working at all.

[372]     The
defendant Lee suggests that, once the trial is concluded, there is a reasonable
possibility that Ms. Meghji will improve significantly and that the adverse
effects of her injuries on her employability will substantially lessen. I do
not accept that argument. On the contrary, I conclude that Ms. Meghji is not
likely to substantially improve insofar as her employment prospects are
concerned.

Ms.
Meghji’s Earning Capacity Prior to Accident

[373]     Ms. Meghji
presents her loss of earning capacity claim in the alternative. The first
approach assumes that she would have successfully completed the nursing program
she had been accepted into, and approximately five or six years after the
accident, would have embarked upon a career at pay levels presented by Ms.
Craig, a human resources consultant for Vancouver Island Health Authority.
Those pay levels start at about $55,000 per year at the first step of level 1,
and increase steadily thereafter, as a new nurse gains experience.

[374]     While a
nursing career was possible if the accident had not happened, I do not find
that it was probable in Ms. Meghji’s case. While she has shown that she had the
intellectual capacity to successfully complete the nursing program, had the
accident not intervened, she had shown a tendency to begin a new program or
path but to have lost interest before completing the program or path, at least
since her graduation in the environmental studies program at York University in
1996. The advantage to Ms. Meghji of a nursing degree would have been
flexibility that nursing might have presented to her of taking time off for
travel or to accompany Mr. Kuoni, with no substantial risk that her
employability might be penalized by the time off. Nursing also carried the
advantages of a decent employer-funded benefits package and the possibility of
well-paid overtime work.

[375]     Had Ms.
Meghji embarked upon the nursing program at Camosun College, Ms. Craig’s
evidence persuades me that she was unlikely to have successfully completed it
if she had attempted to work part-time while studying nursing, and that she
would most likely have taken four years to complete the program as the two year
failure/drop out rate approaches 50%.

[376]     Had Ms.
Meghji taken up nursing, the discounted value of the starting level nursing
wage would exceed $1,000,000 according to calculations presented by her counsel.

[377]     The other
alternative presented by Ms. Meghji is a continuation of her employment with
Shaw Cable, but with promotions to at least supervisory level, if not
management level. Supervisory salary at Shaw, according to Mr. Frewer, was
$45,000 to $55,000 when he testified in 2009, which is somewhat higher than the
range Mr. Norden presented for non-supervisory customer service accounting or
payroll clerks, whose salaries ranged from $38,000 to $44,000 per year.

[378]     Mr. Frewer
was quite supportive of Ms. Meghji and left the impression that he thought she
had a very good chance of reaching supervisory positions at Shaw.

[379]     This
career path was not, however, a sure thing for Ms. Meghji. Mr. Frewer
pointed out that it was unusual that Shaw hired her back in 2002 after she had
quit to accompany Mr. Kuoni to Thailand. Mr. Kuoni’s position at the teacher
level at Vipassana Meditation requires him to teach at least one 30-day course
each year and, although not all of them necessarily would involve foreign
travel, most of them likely would. As well, Mr. Kuoni has indicated through his
past practice that he is prepared to teach and/or attend more than one
meditation course in each year. There is a very good chance that Ms. Meghji
would have elected to go with him, to the detriment of her job prospects at
Shaw, had the accident not occurred.

[380]     I do not,
however, accept the argument advanced by MoTH that Ms. Meghji’s desire to
travel with Mr. Kuoni can be pitched so high as to assume a six month “exotic
vacation” every three years, or thereabouts.

[381]     I also
bear in mind that Ms. Meghji told Mr. Norden that she did not like the job she
was in at the time of the accident as a clerk in the accounts payable
department of Shaw. I have found that statement to be made notwithstanding that
it was not put to Ms. Meghji in cross-examination and she did not have an
opportunity to either deny that she made the statement or to explain it if she
had.

[382]     The
present value of the low end of the Shaw Cable supervisory range would be about
$830,000, and the high end would reach the starting nurses’ salary range of
$1,000,000.

[383]     Whatever
employment Ms. Meghji would have pursued if the accident had not occurred would
have been susceptible to interruptions for travel with Mr. Kuoni and to
Ms. Meghji’s changes in interest from time to time. Although Ms. Meghji’s
pre-accident employment history ought not to determine her future earning
capacity, it is an important consideration or, as Thackray J.A. said in Vaillancourt
v. Molnar Estate, 2002 BCCA 685 at para. 74, a “key element”.

[384]     On Ms.
Meghji’s argument, assuming maximum experience of nine years at level 2
nursing, her future earning capacity approaches $1,500,000. Although that
scenario assumes nursing to age 65, Ms. Craig pointed out that that is not
often achieved because of the physical demands of the nursing profession,
leading to earlier retirement.

[385]     In any
event, the assessment of damages for loss of earning capacity is just that —
assessment — and not a matter of pure calculation or arithmetic. It involves
weighing the possibilities that an income stream upon which the claim is based
would have flowed as claimed if the accident had not occurred, which brings to
bear the normal contingencies of life as well as the positive and negative
contingencies that appear to relate to the specific plaintiff based upon the
evidence.

[386]     In
striving to achieve fairness between plaintiff and defendants, the court must
avoid either over- or under-compensating a plaintiff by predicting, as best it
can, what the future may have held for a particular plaintiff had injury not
occurred. In my view, that is best achieved in this case by approaching Ms.
Meghji’s earning capacity on the basis of a salary range at the current
interface between the top of the range for clerks and range and bottom of the
range for supervisors, or $45,000. But that figure reflects a balance between
the possibilities of higher income through supervisory or nursing career paths
and the negative possibilities including job loss or earnings interruption for
travel, change of career goals, etc. The present value of such a figure is
roughly $830,000. From that should be deducted a realistic assessment of what
Ms. Meghji might earn, as discussed immediately below.

Anticipated
Future Earnings

[387]     To be
deducted from any assessment of future earnings loss are the amounts that Ms.
Meghji likely will earn over the period in which her future capacity loss is
assessed. She currently earns some $14,000 working part-time as a sales clerk
in a jewellery store. I conclude that she is managing that level of income
partly through her own perseverance and partly through the accommodations
granted to her by a sympathetic manager. Ms. Meghji’s physical limitations will
likely preclude her working any more hours than she currently manages and her
cognitive problems will likely inhibit any more challenging employment.

[388]     Ms.
Meghji’s current employment is unlikely to her age 65 partly because she will
not be able to tolerate the job for that long, but more because her current
manager, who has supported her continuation, is not likely to be there for that
long.

[389]     As well,
Ms. Meghji’s current employment will likely be interrupted at some point for
knee surgery, depending on how long the surgery will be deferred relative to
how long Ms. Meghji will continue to work.

[390]     If she
were able to continue to age 65 at her current employment level,
Ms. Meghji would earn about $250,000-$260,000 on a discounted basis.

[391]     My
conclusion, however, is that Ms. Meghji is unlikely to work beyond age 50,
whether because her knee will not tolerate it or her manager will be replaced
by someone less sympathetic. A rough present value of her income between now
and age 50 is $123,000.

Assessment of Loss of Earning
Capacity

[392]     Subtracting
the present value of Ms. Meghji’s expected earning capacity from her
anticipated future earnings and rounding yields $700,000 loss of earning
capacity.

[393]     This
method of assessment may produce unfairness in that it conceals to some extent
the contingencies that have influenced both with and without accident income
assumptions. Approaching it in another way, assuming a $55,000 yearly income
potential if the accident had not occurred, the present value to Ms. Meghji, if
working to age 65 would be just over $1,000,000. Her current income potential
of $14,000 per year, if extrapolated to her age 65, would yield $250,000-$260,000.

[394]     It is far
more likely in my view that Ms. Meghji would have worked to age 65 if the
accident had not occurred than it is that she will work beyond age 50, given
the extent of her current disability and the doctor’s anticipation of future
problems with her knee.

[395]     On
balance, therefore, I conclude that a fair and just award for loss of earning
capacity in this case is $750,000.

SUMMARY

[396]     In
summary, the defendants shall pay Ms. Meghji, jointly and severally:

·        
General / non-pecuniary damages in the sum of $125,000.00

·        
Special damages in the sum of $25,212.00

·        
Future care costs in the sum of $150,000.00

·        
Past loss of earning capacity in the sum of $100,000.00

·        
Loss of future earning capacity in the sum of $750,000.00

[397]     The total
award to Ms. Meghji is $1,150,212.00.

[398]     The
parties may speak to matters incidental to this award, including gross-up for
tax or management fees.

[399]     If there
is a reason to deviate from the ordinary order for costs, I will hear counsel.

                 “R.T.C.
Johnston, J.”          

The Honourable Mr.
Justice Johnston

Appendix A: Calculation of Cost of Future Care
Award (from June 1, 2009):

* Present value key factors were provide by Mr. Young, and
included in exhibit 50. The key factors are based on the statutory discount
rate of 3.50% and calculated on either a continuing or end-year basis depending
on the nature of the expense.