IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131015

Docket: M114741

Registry:
Vancouver

Between:

Matthew W. Latek

Plaintiff

And

Meiczyslaw J. Krol

Defendant

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
In this case the plaintiff, Mathew Latek, seeks damages for injuries he
suffered in a motor vehicle accident that occurred on May 20, 2011. The
defendant, Meiczyslaw Krol, admits he is liable for the full extent of Mr.
Latek’s injuries. The dispute between the parties is over the amount of
damages that Mr. Latek is entitled to recover.

Credibility

[2]            
Before reviewing the facts of this this case I will briefly address
credibility. I found Mr. Latek and the witnesses called on his behalf to be
credible and reliable. Their evidence was uncontradicted by any defence
evidence. Counsel for the defendant did not suggest, either in cross
examination or in argument, that Mr. Latek was not being truthful, that he was
malingering, or that he was exaggerating his symptoms. The medical evidence before
me was undisputed. Accordingly, I will proceed on the basis that I accept the
evidence of the plaintiff’s witnesses unless I specifically indicate otherwise.

Background

[3]            
Mr. Latek was born on September 28, 1982. At the time of the accident he
was 28 years old. He was a passenger in an SUV driven by Mr. Krol when Mr. Krol
lost control of the SUV, which left the roadway and fell a considerable
distance down a steep slope. The vehicle’s fall was stopped where it hit and
came to rest against a large tree. It struck the tree on the passenger side
near the rear row of seats. There is some indication that Mr. Latek briefly
lost consciousness immediately after the accident.

[4]            
Mr. Latek suffered numerous soft tissue injuries in the accident. He was
bleeding from the mouth and had difficulty opening it. A number of his teeth
were loosened. He had bruises and lacerations to his lower face and mouth area.
In addition, he suffered a large number of bruises, scratches and abrasions
over much of his body. Emergency responders removed him from the SUV and
transported him to Lillooet. The next morning, in the emergency ward of the
Lillooet Hospital, an emergency room examined Mr. Latek. X-rays and a CT scan did
not reveal any fractures or ligament damage.

[5]            
Mr. Latek’s mother and Joyce Lee, his domestic partner, drove him from
Lillooet to Vancouver the day after the accident. He was re-examined at the
emergency ward at Vancouver General Hospital with the same result as his
initial examination at Lillooet.

[6]            
Mr. Latek was seen by his family doctor, Dr. Ostapkowicz, on May 25,
2011. At that time he was moving with difficulty and could hardly talk. His jaw
was swollen and he was unable to chew. He complained of head and teeth ache,
maxilla and jaw pain, difficulty in opening his mouth, neck pain, right and
left shoulder pain, right lower back, hip and knee pain, as well as left foot
pain.

[7]            
Mr. Latek was examined by his family dentist, Dr. Gill, on May 25, 2011.
At that time he was able to open his mouth only ten millimetres wide, as
compared to a normal opening of 40-45 millimetres. Dr. Gill noted that 16 of
Mr. Latek’s front teeth were loosened and significantly mobile. On a later
examination on July 25, 2011, Dr. Gill observed that two of Mr. Latek’s
teeth were misaligned inwardly.

[8]            
Mr. Latek remains under the care of Dr. Gill for treatment of the
injuries to his teeth. He currently wears braces to correct the misalignment of
his teeth suffered in the accident. Once the orthodontic treatment is completed
there is a possibility that Mr. Latek may require further treatment to his jaw
but Mr. Latek’s prognosis is generally favourable.

[9]            
Over time many of Mr. Latek’s symptoms resolved. His last recorded visit
to Dr. Ostapkowicz was on December 11, 2012. On January 31, 2013, Mr. Latek
attended an independent medical examination by Dr. Hirsch, a specialist in
physical medicine and rehabilitation. By that time, Mr. Latek’s injuries were
largely resolved except for pain in the low back, left hip and buttock and left
knee. Dr. Hirsch’s opinion was that Mr. Latek’s injuries were soft tissue in
nature. He found no evidence of any structural or ligamentous damage or any
indication of structural injury to the spine. Dr. Hirsch characterized Mr.
Latek’s lower back pain as mechanical, or pain that is exacerbated by
activities and postures that stress or load the back.

[10]        
Dr. Hirsch’s opinion is that Mr. Latek will continue to have some
further improvement but he says it is more probable than not that he will
continue indefinitely to experience pain and discomfort from the injuries he
sustained and currently suffers from.

[11]        
Prior to the accident, Mr. Latek lived a high energy athletic life
style. He excelled in many sports and activities. He was in excellent physical
condition and regularly engaged in strenuous workouts involving cardiovascular
exercise and weight lifting.

[12]        
He was an avid cyclist and snowboarder. He played soccer at a high
level, went on hunting trips in remote areas and pursued both salt and fresh
water fishing. He frequently went on strenuous hikes, including the Grouse
Grind and the Squamish Chief. Mr. Latek also owned a motorcycle and made
extensive use of it in the summer months. He went on frequent rides with
friends.

[13]        
Vocationally, Mr. Latek appears to have followed the “late bloomer”
pattern of advancing his career often seen in people of his generation. After
graduating from high school he worked for a family company, Terra International
Foods Inc., and attended night classes at BCIT, where he earned a certificate
in marketing management. From 2004 to 2008 he attended the University of
Northern British Columbia and obtained a bachelor of commerce in finance and
marketing.

[14]        
After graduation Mr. Latek traveled to Europe for two months. He then
worked on a contract basis with Statistics Canada from September to December
2008. He then worked part-time in the family business. I think it is fair to
say that from January 2009 to the date of the accident, Mr. Latek gave priority
to his personal life and recreational activities over pursuing a long-term
career or maximizing his income.

[15]        
Mr. Latek met Joyce Lee while both were employed at Statistics Canada.
They began living together in September 2009 and were still together at the
time of the trial. Before the accident, Mr. Latek did most of the meal
preparation and household chores for the couple. Ms. Lee testified that Mr.
Latek did 95% of the cooking and usually did the washing up. He also did the
laundry except for folding the clothes after they came out the dryer, cleaned
the bathroom and did most of the gardening. The couple lives in a basement
suite in a house owned by Ms. Lee’s father. However the father is often out of
the country on business and before the accident Mr. Latek helped with the yard
work. Ms. Lee’s primary domestic responsibility was to clean the suite apart
from the bathroom.

[16]        
Prior to the accident, the couple engaged in generally the same
activities that Mr. Latek did before they met. They went on long and
challenging hikes and enjoyed going to the gym together to weight train. They
also went on ski trips on which Ms. Lee skied and Mr. Latek snowboarded.
Ms. Lee often accompanied Mr. Latek on his motorcycle trips, riding as a
passenger.

[17]        
The injuries Mr. Latek suffered in the accident have had a significant
impact on his lifestyle. For the first week after the accident, he needed
assistance to stand in the shower. For about three months after the accident,
he needed crutches to move about. He could not eat solid foods until the
swelling of his face and jaw subsided, shortly after the accident.

[18]        
Mr. Latek’s physical injuries gradually resolved themselves in the
months following the accident. He received physiotherapy treatment at 8 Rinks Physiotherapy
Clinic (8 Rinks) from June to August 2011. In September 2011 he was well enough
to undertake a conditioning program in the active exercise rehabilitation
program at the Performance Institute at 8 Rinks. In November 2012, while
employed on a temporary contract with Coca-Cola, he underwent a further course
of physiotherapy at 8 Rinks.

[19]        
Mr. Latek has exhibited motivational difficulties since the accident. Between
the accident and the trial he has gained 30 to 40 pounds. He testified that he has
lost his self-confidence as a result of his lack of fitness and conditioning. He
no longer participates in most of the activities that he did before he was
injured. For the first year after the accident, he limited his social contact
with his former circle of friends. He spent a significant amount of that time
at home sitting on a couch watching television.

[20]        
Since the accident Mr. Latek no longer snowboards or goes on challenging
hikes. Before the accident he could climb the Grouse Grind without difficulty
but he now finds a walk of two to three kilometres on flat ground very
challenging and tiring. Even these walks cause him discomfort in his lower back
and left hip. Mr. Latek no longer plays soccer or goes on hunting trips.
He no longer snowboards. His exercise activities are now limited to restricted
workouts at the gym and non-challenging walking.

[21]        
Mr. Latek had also lost motivation to participate in social activities
since the accident. His circle of friends was built around vigorous physical
and outdoor activities. He no longer has the bond of such activities to foster
his friendships. He has seen progressively less of these friends as time
passes.

[22]        
Mr. Latek has resumed most of the household tasks he performed before
the accident but still limits the amount of time he spends cooking.

[23]        
Mr. Latek did not work for approximately one year after the accident. In
June 2012, he obtained temporary employment as a sales representative with Coca-Cola,
where Joyce Lee is employed. That employment ended in January 2013 when the
employee he was replacing returned from maternity leave. On an annual basis his
salary at Coca-Cola worked out to approximately $45,000 per year with the
possibility of earning an additional $15,000 per year in bonuses.

[24]        
In this case, Mr. Latek seeks compensation for the following:

A.        
Non Pecuniary damages

B.        
Loss of Past Earnings

C.        
Loss of Future Income Earning Capacity

D.        
Special Damages

E.        
Cost of Future Care

F.        
An In Trust Claim for Services provided by Joyce Lee

Non-Pecuniary Damages

[25]        
Counsel agree that Stapley v. Hejslet, 2006 BCCA 34 [Stapley],
provides a useful summary of the factors to be considered in determining an
award for non‑pecuniary damages. At paras. 45 – 46 Kirkpatrick J.A. said:

[45]
Before embarking on that task, I think it is instructive to reiterate
the underlying purpose of non-pecuniary damages. Much, of course, has been said
about this topic. However, given the not-infrequent inclination by lawyers and
judges to compare only injuries, the following passage from Lindal v. Lindal,
supra, at 637 is a helpful reminder:

 Thus the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation. It therefore will not follow that in considering what
part of the maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury
Damages in Canada (1981), at p. 373). In dealing with an award of this
nature it will be impossible to develop a "tariff". An award will
vary in each case "to meet the specific circumstances of the individual
case" (Thornton at p. 284 of S.C.R.).

 [Emphasis added.]

[46]
The inexhaustive list of common factors cited in Boyd that
influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[26]        
The underlying principle from Lindal v. Lindal, [1981] 2 S.C.R.
629, (quoted in para. 45 of Stapley set out above) is that an award of
non-pecuniary damages must be adequate to provide solace for the loss suffered
by a plaintiff in light of the specific circumstances of that plaintiff. That
loss, and the corresponding need for solace, will not necessarily correlate
with the seriousness of the injuries.

[27]        
Mr. Latek’s injuries, though extensive, were not severe or life
threatening. He did not suffer an inordinate amount of pain from them. Most of
his injuries resolved within about a year after the accident.

[28]        
However, the impact of the injuries on Mr. Latek has been much more
serious than they might have been on a more sedentary plaintiff. I am satisfied
that much of Mr. Latek’s self-esteem and enjoyment of life were based on his
physical prowess and his ability to engage in activities requiring a high level
of physical fitness, endurance and strength.  Mr. Latek gave priority to those
activities over the pursuit of a career in the two years before the accident.

[29]        
I am satisfied that Mr. Latek’s inability to pursue his pre-accident
activities is attributable to the injuries he suffered in the accident. In my
view that loss has had a profound effect on Mr. Latek’s enjoyment of the
amenities of life. While there is no expert medical evidence about the
physiological and mental health impact of the loss of the ability to do what he
did before the accident, I conclude that that loss together with his pain
symptoms caused the personality changes exhibited by Mr. Latek since the
accident.

[30]        
Turning to the Stapley factors, Mr. Latek was a young man at the
time of the accident and the impact of those injuries will be endured by him
over a long period of time. His injuries were not catastrophic. He has not
suffered from severe pain. However, the pain has been disabling in the sense
that it precludes him from engaging in the very activities that defined his pre-accident
self-identity. This has contributed to emotional suffering on his part and has
significantly impaired his enjoyment of life and profoundly changed his
lifestyle.

[31]        
Though Mr. Latek’s family and marital relationships are unimpaired his injuries
have tended to make him socially isolated. He can no longer participate in the
activities that once fostered his friendships.

[32]        
In assessing non-pecuniary damages I have considered the authorities
cited to me by counsel for both parties. While these cases are all somewhat
distinguishable on their facts, they do suggest that the range of damages in
similar cases is between $50,000 and $125,000.

[33]        
I have reviewed the cases relied upon by the defendant, including Li
v.Lian, 2012 BCSC 1892 and Grudzien v. Hu, 2013 BCSC 720. It seems
to me that in those cases the plaintiffs’ injuries had a significantly lesser
impact on their quality of life than those which Mr. Latek suffered have had on
him. On the other hand, the injuries suffered by the plaintiffs in Vaillancourt
v. Molnar Estate, 2002 BCCA 685 and Mohan v. Khan, 2012 BCSC 436, which
Mr. Latek relied on, were somewhat more severe than Mr. Latek’s injuries in
this case.

[34]        
Taking Mr. Latek’s injuries into account in the context of the
authorities, and giving particular weight to the impact the injuries have had
on Mr. Latek’s quality of life, I assess non-pecuniary damages at $85,000.

Loss of Past Income

[35]        
Mr. Latek claims damages for loss of his capacity to earn income from
the date of the accident to the time of the trial.

[36]        
I find that that at the time of the accident Mr. Latek was capable of
working full‑time, with no physical or cognitive impairments to
employment. I am satisfied that Mr. Latek was underemployed at the time of the
accident. In the first half of 2011, Mr. Latek was pursuing a career in the
RCMP. In February 2011 he was notified that he had passed the RCMP Police
Aptitude Battery that entitled him to proceed with an application to become a
member of the RCMP. The next step in his application was a fitness test that
was yet to be scheduled. As a result of the accident, Mr. Latek did not pursue
his application any further.

[37]        
Mr. Latek’s only employment since the accident was with the Coca-Cola
Company as an account representative. His principal duties with Coca‑Cola
were to attempt to renew accounts with former customers who had ceased to purchase
Coca-Cola products from the company. Mr. Latek’s performance in that job was
very satisfactory to his employer. Unfortunately this was only a temporary
position that ended in January 2013. From that time to the date of trial
Mr. Latek has pursued employment in the marketing field but has been
unsuccessful in finding employment. He does some limited work for Terra
International Foods but there was no evidence as to what income, if any, he
received from that position.

[38]        
In the 12 months preceding the accident Mr. Latek earned a gross income
of $17,800. As I have indicated, he was also pursuing a career with the RCMP
but there is little evidence as to the prospects or timing of his securing a
place in the force.

[39]        
I conclude that if Mr. Latek had not been injured he would have
continued to work at Terra International Foods while pursuing his goal of
joining the RCMP. Based on his athleticism and his successful completion of the
RCMP Police Aptitude Battery, I conclude that there was a real and substantial
possibility that he would have been accepted into the RCMP and earning within amounts
to a year of the date of the accident. The entry level salary for an RCMP
officer for the first six months after completion of the Cadet Training Program
is $49,680 per year plus benefits, increasing to $64,549 after six months and
$70,035 after one year.

[40]        
There is very little evidence as to when Mr. Latek was able to return to
work. He had the onus of establishing any loss attributable to the injuries he
suffered in the accident. He clearly had a period of disability after the
accident. It is equally clear that by June 2012 he was able to return to work
on a full time basis. Taking Mr. Latek’s physical injuries and his
emotional reaction to those injuries into account, I consider it reasonable to
conclude that Mr. Latek was unable to work for a period of one year after the
accident. For reasons that I will give in connection with Mr. Latek’s claim for
loss of future income earning capacity, I am also satisfied that his injuries
have diminished his income earning capacity since the accident.

[41]        
I have already concluded that Mr. Latek would have continued with his
part‑time employment at Terra International had he not been injured. I
also find it reasonable to conclude that if he had pursued a career with the
RCMP, it would have taken nine months to one year before he would have been
earning any income from that occupation. On the other hand there is a
substantial possibility that he would by now be earning a substantial annual salary
from the RCMP had he not been injured.

[42]        
Based on Mr. Latek’s pre-accident earnings, the substantial possibility
that he would have been successful in joining the RCMP in the period between
the accident and trial, and the amounts he actually did earn from his
employment at Coca-Cola I assess Mr. Latek’s damages for net loss of past
earning capacity at $30,000.

[43]        
This award takes into account the discount to gross earnings required by
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In assessing his net
loss of past earnings, I have proceeded on the basis that Mr. Latek’s
taxes would not have exceeded 15% in the first year after the accident, and
that as a member of the RCMP, Mr. Latek would have been entitled to benefits
over and above his base salary.

Loss of Future Income
Earning Capacity

[44]        
Mr. Latek claims damages for loss of future income earning capacity. The
Court of Appeal considered the principles applicable to such a claim in Perren
v. Lalari, 2010 BCCA 140 and Morgan v. Galbraith, 2013
BCCA 305 [Morgan]. In Morgan, Garson J.A., speaking for the court
said at para. 24:

[24]
As this Court noted in Perren, at para. 32, in situations where
the plaintiff’s earnings after an accident are the same or similar to that
which he or she earned before the accident, but where a plaintiff nevertheless
claims a loss of earning capacity, the onus is on the plaintiff to prove that
there is a substantial possibility of an event occurring, which will result in
a loss of earnings:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward [Steward v. Berezan,
2007 BCCA 150], by Bauman J. in Chang [Chang v. Feng, 2008 BCSC
49], and by Tysoe J.A. in Romanchych [Romanchych v. Vallianatos,
2010 BCCA 20], that there is a real and substantial possibility of a future
event leading to an income loss. If the plaintiff discharges that burden of
proof, then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok [Steenblok v. Fung (1990), 46 B.C.L.R.
(2d) 133 (C.A.)], or a capital asset approach, as in Brown [Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)]. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos [Pallos v. Insurance Corporation of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.)] and Romanchych. A
plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her usual
employment. That was the case in both Pallos and Parypa [Parypa
v. Wickware, 1999 BCCA 88]. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[Emphasis in original.]

[45]        
The threshold question I must therefore address is whether Mr. Latek has
proven that there is a real and substantial possibility of a future event
leading to an income loss.

[46]        
In this case I am satisfied that Mr. Latek has established that there is
a real and substantial possibility of a future loss of income as a result of
the injuries he suffered in the accident. In his report Dr. Hirsch, stated that
when he examined Mr. Latek he considered him to be physically capable of
performing sedentary tasks involving light to moderate physical demand. His
opinion was that Mr. Latek will be able to work full time in a sedentary or
semi-sedentary capacity.

[47]        
Dr. Hirsch was of the opinion that Mr. Latek had not achieved maximum
physical recovery as of January 31, 2013, the date of his examination. In cross
examination he stated that, while anything is possible, he thought that Mr.
Latek’s physical condition would end up somewhere close to his condition on the
date of examination. He reaffirmed that Mr. Latek would be limited to
semi-sedentary types of work in the future.

[48]        
I accept Dr. Hirsch’s opinion on this issue. The defendant presented no
evidence to contradict it, and it is consistent with my conclusions as to Mr.
Latek’s ongoing condition. I am therefore satisfied Mr. Latek’s injuries
preclude him from pursuing some occupations that were open to him before the
accident and that he has therefore suffered a loss of future income earning
capacity. In particular I accept Dr. Hirsch’s opinion that it is unlikely Mr.
Latek will ever be able to meet the physical demands of being a police officer.

[49]        
Given Mr. Latek’s young age and the fact that he had not yet established
a career, I conclude that the damages for his loss should be assessed on a
capital asset basis, as was done in Brown v. Golaiy, (1985) 26
B.C.L.R. (3d) 353 (S.C.) [Brown].

[50]        
In Brown, Finch J., as he then was, set out some of the
considerations in assessing damages for loss of earning capacity at paras 7-8
as follows:

7
  In Andrews et al. v. Grand & Toy Alberta Ltd. et al.
(1978), 83 D.L.R. (3d) 452, [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577, 8 A.R.
182, 3 C.C.L.T. 225, 19 N.R. 50 Dickson J., as he then was, characterized the
problem of assessing a claim for lost ability to earn income in this way (p.
469 D.L.R.):

"We must now
gaze more deeply into the crystal ball. What sort of a career would the
accident victim have had? What were his prospects and potential prior to the
accident? It is not loss of earnings but, rather, loss of earning capacity of
which compensation must be made: The Queen v. Jennings, supra. A capital
asset has been lost: what was its value?"

8
  The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

 1.
The plaintiff has been rendered less capable overall from earning income from
all types of employment;

 2.
the plaintiff is less marketable or attractive as an employee to potential
employers;

 3. the
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

 4. The plaintiff is less
valuable to himself as a person capable of earning income in a competitive labour
market.

[51]        
Before the accident Mr. Latek was pursuing a career with the RCMP. He
also worked in construction, although he had no trade qualifications and did
not express any plan to pursue a career in that area.

[52]        
Mr. Latek’s formal education has been in marketing and business. He
holds a Marketing Management Certificate from BCIT and a Bachelor of Commerce
in Finance and Marketing from the University of Northern British Columbia. His
only employment since the accident was a marketing position with Coca-Cola.
Since that temporary job ended in January of this year he has been actively
seeking another position in the marketing field.

[53]        
I am satisfied that Mr. Latek has been rendered less capable of earning
income from all types of employment, is less marketable and has lost the
ability to take advantage of all job opportunities that would otherwise have
been open to him. I am also satisfied that he is now less valuable to himself,
principally because of his loss of self-esteem arising out of his inability to be
physically active after the accident.

[54]        
However, I must also take into account that the evidence shows a substantial
possibility Mr. Latek can earn future income equivalent to that of an RCMP
constable by pursuing a career based on his University degree. There was no
evidence before me as to what Mr. Latek could reasonably have expected to earn
if he was promoted from the rank of constable. However, given his education and
obvious intelligence, I am satisfied that there was a real and substantial
possibility that Mr. Latek would have received such promotions. In addition, as
a police officer he would in the normal course have the opportunity to work
overtime and thereby supplement his income and would be entitled to pension
benefits as a federal employee that might not have been available to him in
other occupations.

[55]        
In Brown, Finch J. assessed damages based on one year’s income.
In Pallos v. Insurance Corporation of British Columbia, 100 B.C.L.R.
(2d) 260, [1995] B.C.J. No. 2 (CA), Finch J.A. also assessed damages in
an amount approximately equal to one year’s income, although he did not
expressly state that that was the basis for the award.

[56]        
Counsel for the defendant submitted that an award in the range of
$18,000 was appropriate in this case. However, in my view, Mr. Latek’s actual
past income does not form a reliable basis for assessing damages for his loss
of future income earning capacity. It is clear that up to the time of his
accident Mr. Latek was more focused on his personal and recreational life than
on starting a long‑term career.

[57]        
Taking the evidence with respect to his potential earnings from a career
in marketing, his young age and the limitations of his injury into account, I
assess Mr. Latek’s damages for loss of income earning capacity at $50,000.

Special Damages

[58]        
Mr. Latek claims the following special damages:

[59]        
The defendant takes issue only with the claim for non-prescription
drugs. He submits that there is insufficient evidence for an award of $300 for
this claim. Mr. Latek did not produce any receipts for non-prescription
drugs. However, the evidence is that Mr. Latek was in significant pain for a
period of up to a year and that thereafter, consistent with the recommendations
of Dr. Ostapkowicz, he has taken Tylenol and Advil to alleviate that pain.
Dr. Ostapkowicz reported that Mr. Latek was still not pain free in January
2013.

[60]        
Taking the defendant’s submissions as to the inadequacy of the evidence
of the amount spent on non-prescription medication into account, I assess
special damages at $1,500.

Cost of Future Care

[61]        
The parties agree that the only cost of a future item is an x-ray after
Mr. Latek’s last course of orthodontic treatment for his loose and
misaligned teeth. Dr. Gill estimated the cost of this x-ray at $450. I
therefore assess damages for cost of future care in that amount.

In Trust Claim

[62]        
Mr. Latek seeks an “in trust” award of damages for services provided to
him by his domestic partner Joyce Lee in the period from the accident to trial.
Prior to the accident Mr. Latek performed the majority of domestic duties in
the residence he shared with Mr. Lee. He did the majority of the cooking and
washed the dishes. He also cleaned the bathroom and shared laundry duties with
Ms. Lee.

[63]        
For a short time after the accident, Ms. Lee assisted Mr. Latek with
personal care tasks. She assisted him to shower and in climbing the stairs to
the bathroom. Mr. Latek did not resume driving until about six months after the
accident. In that period Ms. Lee drove him to his appointments.

[64]        
Mr. Latek and Ms. Lee testified that after the accident Ms. Lee took
over most of the domestic tasks in their home. Ms. Lee estimates that she spent
an additional four hours per day on domestic chores formerly done by Mr. Latek
for the first six to eight months after the accident. Thereafter the amount of
extra time she spent gradually reduced to two and a half to three hours for the
next six months and two hours from the end of that period to the date of trial.

[65]        
Justice Cohen reviewed the principles applicable to awarding an in trust
claim in Dufault v. Kathed Holdings Ltd., 2007 BCSC 186 at para.
171:

[171]
In Bystedt (Guardian ad litem of) v. Hay, 2001 BCSC 1735; aff’d
2004 BCCA 124, D.M. Smith J. at paras. 178-180, summarizes the factors to be
considered in the assessment of “in trust” claims as follows:

The considerations to be
applied in assessing compensation to third parties in personal injury claims
were clarified in Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16 (S.C.).
Huddart J. (now J.A.) was faced with two contradictory Court of Appeal
decisions that would have produced two different answers on the facts of the
case: DeSousa v. Kuntz (1989), 42 B.C.L.R. (2d) 186, and Hall v. Miller
(1989), 64 D.L.R. (4th) 369. She followed the latter, holding that an award may
be made for services a spouse provides outside the normal range of duties and
which would have to be done by a hired third party if the spouse did not
perform them. The services need not be of a professional nature. The court will
award the costs of reasonable care, which it held was the lower of the actual
costs of care or the costs of a reasonable care giver.

That change has been the
subject of supportive comment in subsequent cases: see for example McCloskey
v. Lymn (1996), 26 B.C.L.R. (3d) 118 (S.C.). The Court of Appeal has
recognized a similar principle in Kroeker v. Jansen (1995), 4 B.C.L.R.
(3d) 178. Kroeker was a decision of a five-member panel of the Court of
Appeal and the leading authority on the subject of diminished housekeeping
capacity. At page 183, Gibbs J.A. explained:

…housekeeping and other
spousal services have economic value for which a claim by an injured party will
lie even where those services are replaced gratuitously from within the family.

From a review of these
authorities one can construct a summary of the factors to be considered in the
assessment of “in trust” claims:

(a) the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b) if
the services are rendered by a family member, they must be over and above what
would be expected from the family relationship (here, the normal care of an
uninjured child);

(c) the
maximum value of such services is the cost of obtaining the services outside
the family;

(d) where
the opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)
quantification should reflect the true and reasonable value of the services
performed taking into account the time, quality and nature of those services.
In this regard, the damages should reflect the wage of a substitute caregiver.
There should not be a discounting or undervaluation of such services because of
the nature of the relationship; and,

(f) the
family members providing the services need not forego other income and there
need not be payment for the services rendered.

[66]        
Except for a relatively short period immediately after the accident, the
services performed by Ms. Lee consisted largely of performing domestic tasks on
behalf of the couple that were formerly undertaken by Mr. Latek. The services
in most cases were not specifically performed for Mr. Latek but consisted of
Ms. Lee taking over domestic tasks performed by Mr. Latek prior to the
accident.

[67]        
In my view most of the services performed by Ms. Lee are not compensable
as part of an in trust claim. They consist primarily of Ms. Lee assuming
responsibility for the normal tasks associated with maintaining a household. I
do not consider that they were over and above what would be expected from the
domestic relationship of Ms. Lee and Mr. Latek. In addition Ms. Lee benefitted
personally from the services by sharing the meals that were prepared and living
in the home that she maintained.

[68]        
I also have considerable scepticism about the amount of time that Ms.
Lee spent on those activities. I do not think she was trying to mislead me when
she gave her time estimates. Rather I think she was honestly mistaken in
estimating the amount of time required to address the tasks she described.

[69]        
In the period immediately following the accident, Ms. Lee did provide
services to Mr. Latek that were necessary for his care. These included some
assistance with his personal care needs such a showering. In addition she drove
Mr. Latek to medical appointments and to physiotherapy. She drove to Lillooet
to pick him up after the accident. I consider a modest award for these services
to be appropriate.

[70]        
After reviewing the evidence in light of the authorities I have
concluded that an award of $3000 is warranted in this case.

[71]        
In summary I assess Mr. Latek’s damages as follows:

[72]        
Subject to any application the parties may make, Mr. Latek is entitled
to his costs on scale B.

“The
Honourable Mr. Justice Sewell”