IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20140520

Docket: 49403

Registry:
Vernon

Between:

Quentin Carter
Hermanson

Plaintiff

And

Ryan Clarence
Durkee and Troy Lea Durkee

Defendants

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff was 18 years of age at the time he was injured in a motor
vehicle incident. His principal injury is a severe traumatic brain injury.

[2]            
The defendant admits liability for the incident, and the parties have
resolved some categories of damages including non-pecuniary damages, special
damages and past loss of income. In dispute in this trial are three other
categories of damages, including future loss of earnings or earnings capacity,
costs of future care, and in-trust claims on behalf of the plaintiff’s mother,
Nancy Hermanson, and his girlfriend, Joleen Chorney.

[3]            
The parties also agree that some issues will be addressed after this
decision is rendered. Those include tax gross-up, possible structuring of the
award, and management fees.

Background

The Plaintiff

[4]            
The plaintiff was born on July 23, 1992, in Vernon, B.C., into a family
with an older brother, his mother and his father.

[5]            
His infancy was developmentally normal and his health was good.

[6]            
Although his parents separated when he was seven years of age, the
plaintiff’s home continued to be a healthy and positive one. The plaintiff
remained with his mother, who had primary if not sole parenting
responsibilities before she formed a relationship with Doug Vandenburg. Even
after Mr. Vandenburg entered the plaintiff’s life, Nancy Hermanson was
primarily responsible for the plaintiff’s parenting.

[7]            
Nancy Hermanson obtained a university degree before beginning a
successful career in banking. She was employed full-time thereafter with the
Bank of Nova Scotia, with breaks only for maternity leave, until her recent
retirement in or about May 2013. She was 50 at the time of her retirement and
held the position of manager.

[8]            
She raised the plaintiff, teaching him fiscal responsibility and
specifically that money was to be earned not given. She also focussed on the
importance of education. Her early hopes were that the plaintiff would attend
post-secondary education.

[9]            
Mr. Vandenburg is self-employed. He owns a gravel truck and
excavator. He sometimes supplements that self-employment with seasonal logging
truck operation. He has adopted the aforementioned parenting approach of Ms. Hermanson
in his role as a step-father and has had a positive relationship with the
plaintiff.

[10]        
The plaintiff attended school in Salmon Arm and graduated in June 2010,
approximately 4.5 months before the motor vehicle incident. The plaintiff’s
school records are in evidence and numerous lay witnesses and experts have
commented on them. I will deal with some of the nuances and interpretations of
that scholastic history in the analysis portion of this decision. Generally,
however, it is apparent that the plaintiff did not excel academically. His
specific areas of weakness appear to have been in reading and writing. As he
progressed through the higher grades of the public education system, it became
apparent that post-secondary education was not likely or realistic. His
apparent intentions, encouraged by his mother, were to graduate from Grade 12
and pursue a trade.

[11]        
The plaintiff’s high school was associated with B.C. trades programs,
which allowed students to complete part of the educational requirements of
provincial trades apprenticeships during their high school. The plaintiff
successfully completed the first year automotive technician through that
program.

[12]        
He had an interest in motor vehicles, both driving them and doing minor
mechanical work on them. In high school, he acquired a vehicle of his own, on which
he did some work. He also helped friends with their vehicles. Mr. Vandenburg
taught the plaintiff to assist in some of the basic maintenance of his
equipment, such as greasing and oil changes.

[13]        
As a child and adolescent, the plaintiff did chores at home where he
often negotiated compensation with his mother or Mr. Vandenburg for his
efforts. He enjoyed physical, hands-on-types of activities and tasks.

[14]        
The plaintiff was a physically fit and active child. He played sports
and, once in high school, focussed on rugby. He enjoyed weight training.

[15]        
He acquired his driver’s licence at age 16.

[16]        
He successfully completed the C.O.R.E. course at age 14 and acquired his
hunting licence.

[17]        
At or about age 16 and while still in school, he worked for a period of
time at a local gas station.

[18]        
Nancy Hermanson always imposed an expectation on the plaintiff that
after graduation, he would be required to contribute financially if he were
staying at home, unless he remained in school.

[19]        
As he approached graduation, the plaintiff and his mother agreed that he
could “take the summer off” before his obligation to pay for staying at home
would take effect.

[20]        
The plaintiff did look for work following his graduation but was
unsuccessful until the fall. He then obtained some work with a local (Salmon
Arm) landscaping business in September 2010, which concluded at the end of the
season in October 2010.

[21]        
At the time of the motor vehicle incident, the plaintiff was not
employed.

[22]        
The plaintiff had a core group of high school friends that he socialized
with. He was characterized by some of them as being a “smart ass” but generally
he seems to have been well liked, active socially and had no behavioural issues
of consequence. The plaintiff maintains a friendship with at least some of that
group. I will deal with the extent of those friendships in the scope of
his current social life in my analysis. The parties characterize it quite
differently.

[23]        
Numerous of the plaintiff’s friends have retained at least a connection
with, if not their principal residence in, the Salmon Arm area but travel to
Alberta for employment. They work in various capacities connected with the oil
industry. Some of them at least, have obtained their positions through these
friendships; that is, some of the group have been the connections or references
relied on by the others to secure their jobs.

Motor Vehicle Incident and Injuries

[24]        
I will not deal with the accident circumstances in any detail as
liability has been admitted. The defendant, Ryan Clarence Durkee, is and continues
to be a friend of the plaintiff. The plaintiff was a passenger in a vehicle
operated by Mr. Durkee on a forest road. The vehicle left the road and the
injuries resulted.

[25]        
The plaintiff’s injuries included a severe traumatic brain injury and
ruptured spleen.

[26]        
Because of the location of the incident, there was some delay before
emergency services arrived at the scene. When the plaintiff was initially
assessed by them, he had a Glasgow Coma Scale of 3 (the lowest level of
consciousness on the scale of 3 to 15).

[27]        
The traumatic brain injury was described by numerous experts. Dr. Clement
is a radiologist with a specialization in neuroradiology. He reported (June 11,
2011) as follows:

…There is severe axonal shear
injury with grade I, grade II and grade III lesions noted. In total they number
over 100. There is also more diffuse abnormal signal noted in the corpus
callosum and periventricular brain indicating diffuse axonal shear injury. As
well the ventricles and sulci are larger than on the previous examination and
appear milder larger than expected for an 18-year-old male. These latter
findings are likely on the combined basis of resolved brain edema at the time
of the patient’s trauma as well as generalized early post traumatic cerebral
atrophy.

Medical Assessment Post-incident

[28]        
The plaintiff has been assessed and reported on by 11 specialists in the
areas of neuropsychiatry, physical and rehabilitation medicine,
neuropsychology, neurology and psychology. Collectively, they produced 24
reports that are in evidence in this trial. There are additional reports in
other areas from each party.

[29]        
Those reports are as follows:

The Plaintiff

Dr. R. Nairn Stewart – A medical doctor licensed to
practice in British Columbia with specialty training and expertise in physical
medicine and rehabilitation, including the diagnosis, assessment,
rehabilitation and treatment of traumatic brain injury.

–      
October 9, 2013

–      
November 20, 2013

Dr. Gordon Wallace – A registered psychologist
licensed to practise in British Columbia and Alberta, as well as a registrant
of the Canadian Register of Health Service Providers in Psychology, with a PhD
in clinical psychology, and specialty training and expertise in conducting
psychological and vocational assessments.

–      
April 23, 2012

–      
October 7, 2013

–      
October 16, 2013

Dr. Jason Clement – An expert medical doctor
licensed to practice in British Columbia with specialty training and expertise
in neuroradiology.

–      
June 11, 2011

Dr. Christopher Honey – An expert medical doctor
licensed to practice in British Columbia with specialty training and expertise
in respect to neurology and neurosurgery, including the diagnosis, assessment
and treatment of traumatic brain injury.

–      
October 2, 2012

Dr. Donald A. Cameron – An expert medical doctor
licensed to practice in British Columbia with specialty training and expertise
in neurology, including the diagnosis, assessment and treatment of traumatic
brain injury.

–      
March 22, 2012

–      
October 15, 2013

–      
November 15, 2013

–      
November 16, 2013

Dr. Derryck Smith – An expert medical doctor
licensed to practise in British Columbia since 1980 with specialty training and
expertise in psychiatry, including neuropsychiatry, and specifically in
relation to the assessment and treatment of traumatic brain injury.

–      
September 10, 2013

–      
October 30, 2013

–      
November 15, 2013

Dr. Harry Miller – A registered psychologist with
expertise in neuropsychology and qualified to perform neuropsychological and
psychological testing to individuals with traumatic brain injuries and to
provide opinions regarding the neuropsychological consequences of their injury,
as well as recommendations regarding rehabilitation, therapy and vocational
issues.

–      
June 18, 2011

Dr. James Schmidt – A certified clinical
psychologist and clinical neuropsychologist qualified to give opinions on the
neuropsychological effects of brain injury and disorder on cognitive, emotional
and behavioural function.

–      
November 28, 2011

–      
January 16, 2013

–      
July 22, 2013

–      
November 14, 2013

The Defendants

Dr. R.J. O’Shaughnessy – An expert medical doctor licensed
to practice in British Columbia with specialty training and expertise in
psychiatry, including the assessment and treatment of traumatic brain injury.

–      
March 18, 2013

Dr. Rehan Dost – An expert medical doctor
licensed to practice in Ontario and British Columbia with specialty training
and expertise in neurology, including the diagnosis, assessment and treatment
of traumatic brain injury.

–      
June 10, 2013

–      
October 23, 2013

Dr. Andrew Travlos – A medical doctor licensed to
practice in British Columbia with specialty training and expertise in physical
medicine and rehabilitation, including the diagnosis, assessment,
rehabilitation and treatment of traumatic brain injury.

–      
August 15, 2013

–      
October 21, 2013

[30]        
Following the incident, the plaintiff was initially hospitalized in
Salmon Arm but was quickly transferred to the Royal Inland Hospital in
Kamloops, where he remained until his discharge on January 7, 2011. A convenient
summary of his progress in hospital, in very brief and general terms, is
contained in a report of Dr. Smith, psychiatrist, as follows:

Facts and Assumptions

12.       It
appears that he recovered slowly without any surgical or medical intervention.

13.       A CT
scan of the head showed widespread shear hemorrhages in the corpus callosum and
particularly in the right frontal lobe. There was blood in the right lateral
ventricle.

14.       It is
evident that he sustained a laceration to his spleen and was treated
conservatively.

15.       On
November 26, 2010, a note from Dr. Raghavan noted that he was still
unconscious. He was switched from haloperidol to Seroquel, likely to manage
agitation.

16.       On
December 13, 2010, he was transferred to the rehabilitation unit.

17.       I noted from the neurological records that the Glasgow Coma
Scale score remained at 11 until December 9, 2010. On December 10, 2010, it was
14.

I could not
find any further scores.

18.       On January 6, 2011, he was
wearing an eye patch because of double vision. There was loss of dexterity in
the right hand. He had significant memory problems. He was impulsive. His right
leg was weaker than the left.

[31]        
After his discharge from hospital, the plaintiff received rehabilitation
services from Meridian Rehabilitation. He remained living at his home and his mother
also provided assistance.

[32]        
At his discharge, the plaintiff had significant physical and cognitive
symptoms associated with his brain injury. Physically, the deficits included
right-sided weakness, speech impairment and double vision. Cognitively, the
plaintiff demonstrated difficulty in sequencing, planning, memory and concrete
thinking, as well as limited frustration tolerances, impaired judgment, and
fatigue.

[33]        
The rehabilitation efforts focussed on physiotherapy for his right-sided
weakness, speech and language therapy to deal with his speech challenges, and
occupational therapy to assist him with his impaired dexterity with his right
hand and his cognitive issues. He was not able to drive. Kinesiology was
involved to assist him in developing and implementing an exercise program. Reports
of those service providers indicated that by March 2011, the plaintiff was
demonstrating resistance to the level of services being provided and a lack of
insight into the extent of his deficits and the need for some of those
services.

[34]        
To aid in structuring the rehabilitation plan, ICBC’s rehabilitation
co-ordinator obtained the above noted neuropsychological opinion from Dr. Miller
that was relied on by the plaintiff. His evaluation occurred on May 27 and
28, 2011, approximately 6.5 months post-injury. Part of his summary of the test
results is as follows:

The results of the neuropsychological evaluation revealed a
number of areas of higher cognitive function to be impaired. These include
complex attention, processing speed, certain aspects of academic skills, verbal
intellectual ability, verbal problem solving and reasoning, and
learning/memory

It will be important for the
patient to utilize compensatory strategies to manage cognitive problems.
Addressing issues with attention and processing speed is fundamental to
successful completion of other higher order cognitive abilities including
learning, memory, and problem solving/reasoning. Difficulties with attention
and processing speed typically impact adversely on the time it takes to
register and acquire information, storage of new information, and being able to
consider and work through problems and decisions to produce an appropriate
response

[35]        
At the time of that assessment, the plaintiff was pressing to be able to
return to driving. Dr. Miller did not feel it was appropriate at that
time.

[36]        
As noted, generally, the rehabilitation efforts were directed at
assisting the plaintiff in dealing with his physical limitations including
balance in his right-sided hemiparesis and his impaired speech. As he made gains
in recovery and adapted to those challenges, the focus of the rehabilitation shifted
to aiding the plaintiff in managing and adapting to the cognitive deficits
identified by Dr. Miller. In practical terms, this meant trying to develop
compensatory strategies for the limitations that the plaintiff was dealing with
in respect of “basic” and “instrumental” activities of daily living (“ADL”).
These two categories of ADLs were explained in the evidence. Basic ADLs include
such things as personal hygiene and toileting. Instrumental ADLs involve more
complex tasks such as doing laundry, making and utilizing shopping lists,
taking medications and budgeting.

[37]        
The parties interpret the evidence relating to the plaintiff’s progress
through his rehabilitation significantly differently and argue that I should
reach quite different the conclusions based on it. Those differences are the
foundation of their respective positions regarding the appropriate range of
damages in each of the disputed categories.

[38]        
Additional follow-up neuropsychological assessments of the plaintiff were
carried out by Dr. Schmidt. In November 2011, after ruling out non-injury
related contributors, Dr. Schmidt reported the test results as follows:

4.         …In that context I found that Mr. Hermanson
continued to show several significant deficits in cognitive functioning. These
included significant weaknesses in processing speed, sustained and selective
attention, some components of executive functioning, and verbal memory

[39]        
Dr. Schmidt observed that “both the plaintiff and, to a degree, his
mother significantly underreport, or are simply be [sic] unaware of the
deficits and weaknesses he has”.

[40]        
In October 2012, Dr. Schmidt did further testing and reported on
that on January 16, 2013:

3.         …In
short, I would conclude that, between the first and current evaluations Mr. Hermanson
has experienced no improvement in the cognitive weaknesses that have been
identified. In particular, Mr. Hermanson continues to show significant
deficits in processing speed, selective and sustained attention, verbal
learning and memory, and executive functioning.

5.         …Although he has moved out of
the parental home and now lives with his girlfriend, there are indications that
she now provides him with a good deal of structure and support. Hence, although
I view this as a positive step, it still does not allow us to fully determine
his ultimate ability to function independently in the community. Indeed, there
are subtle but very ominous indications that significant limitations exist in that
respect, including his inability to sustain employment to date, his failure to
form friendships in his new community and his apparent difficulties initiating
even simple activities as preparing himself food when hungry.

[41]        
Dr. Schmidt did further testing in June 2013 and reported in July
2013 as follows:

2.         Formal
cognitive testing in this occasion revealed no improvement in his performance
in areas of weakness since he was seen in October of 2012. In particular, Mr. Hermanson
continues to show significant weaknesses in processing speed, selective and sustained
attention, ability to learn and retain verbal information, and some aspects of
executive functioning, particularly those associated with initiative and
selective attention.

3.         Formal testing of emotional and
behavioural functioning reveals that Mr. Hermanson, for the most part,
remains unaware of his deficits, although he is acknowledging some increased
difficulties in problem solving areas. His mother, on the other hand, appears
to be becoming more aware of his overall problems, although her insight, too,
appears to be somewhat limited

[42]        
Dr. Schmidt had recommended throughout that ongoing rehabilitation
services be involved. In fact, however, services were terminated on November
22, 2012.

[43]        
Dr. Cameron’s opinion and conclusions included the following:

41.       …it is my opinion that Mr. Hermanson
did sustain a severe traumatic brain injury involving diffused and multifocal
brain structures particularly the frontal lobes of his brain sustained at the
time of the accident of November 13, 2010.

[44]        
Each party solicited the opinion of a psychiatrist with special interest
in neuropsychiatry. Dr. O’Shaughnessy for the defendants saw the plaintiff
in February 2013, and Dr. Smith for the plaintiff saw the plaintiff on July
23, 2013. Each agrees that the plaintiff suffered a severe traumatic brain
injury. Dr. O’Shaughnessy included these statements in his report of March
18, 2013:

…Individuals with this degree of damage evident on an MRI
would be predicted to have substantial impairment in a wide variety of areas
and in particular in frontal lobe functionings, resulting in significant
psychiatric disorder and/or personality changes. Somewhat surprisingly, he does
not in fact demonstrate these clinically and in fact he has had a remarkable
recovery from his injury, bearing in mind the severity of the MRI findings and
the initial clinical findings. Having said that, it is clear he is left with
significant residual impairment that has been well documented in the various
records I have reviewed.

…It is clear, however, he is left with ongoing deficits in
learning, especially in the verbal capacity, processing speed, and attention
tasks. These are entirely consistent with the descriptions of his behaviour and
functioning in the rehabilitation reports and in fact his self-report. In my
opinion, the ongoing cognitive impairments are quite pronounced and directly
related to the brain injury and would not have been evident otherwise.

…From my review of the material,
this man will have significant difficulties in ever returning to school or
learning anything, especially through verbal means

[45]        
Dr. Smith reported as follows:

Psychiatric Diagnosis

34.       Mr. Hermanson
has been canvassed for psychiatric illness with three sets of neuropsychological
testing using the instrument the Minnesota Multiphasic Personality Inventory.
This test has consistently shown nothing much in the way of psychiatric
illness. Individuals who sustain severe traumatic brain injury are at very
increased risk for developing novel psychiatric illness, most notably
depression. Unlike cognitive impairments, which are maximal immediately after
trauma, psychiatric illness tends to develop gradually after the actual brain
injury. The risk factors for psychiatric illness are probably due to two
factors:

1)         direct
trauma to the brain; and

2)         the
social and emotional sequelae of living with a brain injury, including problems
with friendships, romantic relationships and employment.

35.       Based on my assessment Mr. Hermanson
does not appear to have a formal psychiatric diagnosis. His affect, however, is
flat. In my opinion, he remains at very significant risk for developing Major Depression
given his current reduced ability to function as a romantic partner and as a
friend and to maintain competitive employment. There is no evidence that this
man has either depression or anxiety.

Plaintiff Following Discharge from Hospital

[46]        
The plaintiff and Joleen Chorney had met and were friends prior to the
motor vehicle incident. Following the incident, they became boyfriend and
girlfriend. They were both living in Salmon Arm.

[47]        
Since the motor vehicle collision, the plaintiff has lived at home with
his mother and Mr. Vandenburg with the exception of a period from September
2012 to spring 2013 while he lived in Kamloops with Ms. Chorney while she
attended school.

[48]        
The move to Kamloops occurred when Ms. Chorney decided that she
wanted to pursue her education there, and the two decided that the plaintiff
would follow and they would live together. That experiment failed when the two
broke up.

[49]        
The plaintiff left and moved back home in early 2013. Ms. Chorney
moved back to Salmon Arm in April 2013. Since then, they have reconciled and,
at the time of trial, remain boyfriend and girlfriend but live separately at
their respective parents’ homes in Salmon Arm.

[50]        
Both Ms. Chorney and Nancy Hermanson have provided assistance to
the plaintiff in various forms such as transportation; meal preparation;
general homemaking, including laundry and cleaning; and reminders for various
tasks. Essentially, their assistance has been with tasks that fall into the
category of instrumental activities of daily living, including financial
management.

[51]        
 In this trial, the parties take significantly different positions
regarding the quantification of this assistance and whether it is necessitated
by the incident-related injuries. These divergent views frame their submissions
both in respect of the “in trust claims” advanced on behalf of Ms. Hermanson
and Ms. Chorney, and the claim for costs of future care.

[52]        
The plaintiff has not lived in a truly independent situation either
before or after the motor vehicle incident.

[53]        
The plaintiff was not able to drive following the motor vehicle
collision because of his deficits. At the time of the incident, he possessed
his driver’s licence in the new driver’s categorization or “N”. Soon after his
discharge from hospital, he pressed those involved with his rehabilitation to
regain his driving privileges. That ultimately led to the involvement of Insight
Rehabilitation Services and the GF Strong Driver Rehabilitation Services. On
April 26, 2012, the plaintiff successfully obtained an unrestricted Class 5
driver’s licence. He has been driving since that time.

[54]        
There has been no professional review of his driving since. Those who
have been his passenger describe him generally as a cautious driver. He relies
heavily on a GPS device and/or his passengers to assist him in finding
destinations.

Post-incident Employment

[55]        
Since the motor vehicle incident, the plaintiff has had several periods
of employment either with or without remuneration.

[56]        
The first was with Shuswap Collision in Salmon Arm. It is auto body
repair shop. Mr. Vandenburg had some connection with the ownership of the
business. With the assistance of the rehabilitation team, arrangements were
made for a graduated return to work trial. Over a period of approximately six
weeks, the plaintiff attended that employment with weekly increases in the
hours. It was not paid employment. The supervisors and managers of the business
worked with the rehabilitation supervisors. They noted that as the hours
increased, issues of fatigue emerged.

[57]        
Mr. Oickle, one of the owners of the business, felt that the
plaintiff tried hard but was unable to carry out more than basic tasks and did
not function well without supervision. It was his opinion that the plaintiff
was not efficient and not capable of doing the job. To give the endeavour
context, Mr. Oickle testified that he would not recommend the plaintiff as
an employee. That work trial concluded on January 13, 2012.

[58]        
In May 2012, the plaintiff applied for and secured part-time employment
with Save‑On‑Foods in Salmon Arm. This was paid remuneration at
minimum wage. It continued until August 25, 2012, when the plaintiff quit
so that he could follow Ms. Chorney to Kamloops as set out above. His
position was as a “store clerk” with duties involving stocking shelves, price
checks, collecting buggies and similar tasks.

[59]        
Mr. Bamford, the general manager of the store, observed the plaintiff
while at work and also received feedback from the plaintiff’s immediate
supervisors. After the plaintiff resigned, Mr. Bamford placed a note on
the file that indicated if the plaintiff applied to be rehired that he should
be declined. In Mr. Bamford’s view, the plaintiff was too slow and not a
desirable employee.

[60]        
The plaintiff was actually hired for the job at Save-On-Foods by the
assistant manager, Mr. Paul Hartman. He observed the plaintiff to be an
“okay worker” who was not “overly fast”. He described the plaintiff as being
“slow and steady” but did the minimum amount of work to get by.

[61]        
After moving to Kamloops with Ms. Chorney in early September 2012,
the plaintiff applied for and obtained full-time employment with Canadian Tire
in their automotive shop. The plaintiff’s duties included mounting and
balancing tires, oil changes, shop cleanup, and assisting technicians or
mechanics. He entered the employment on a three-month probation system, and he
was terminated from that employment prior to the expiration of that probation
on December 12, 2012. The service manager, Mr. Kurucz, indicated that the
plaintiff was very slow in carrying out his tasks and did not seem to be able
to retain information he was given. He was able to work independently on very narrow
tasks, but he was not trusted to work alone on vehicles.

[62]        
Mr. Kurucz, was contacted later by the manager of Salmon Arm after
the plaintiff applied for a job there. Mr. Kurucz recommended to that
individual that the plaintiff not be hired. Despite that, the plaintiff was
hired for employment at the Canadian Tire store in Salmon Arm on April 29,
2013. He was terminated on May 5, 2013, after getting into a disagreement with
the shop manager.

[63]        
The plaintiff next acquired a job at Salmon Arm Truss. Initially, his
job was to put trusses together. He was removed from that position because he
was too slow and placed in the yard. Ultimately, he was terminated from the job
after less than one month as a result of conflict with his manager.

[64]        
He has not had any employment from then to the date of trial.

Issues and Positions of the Parties

[65]        
There is little disagreement between the parties on the essential
features of the injury and its effect on the plaintiff. The plaintiff received
a severe traumatic brain injury. No other injury has a material impact on the
damages to be assessed.

[66]        
The issues are, on their face at least, not complicated. The parties
agree the plaintiff is not competitively employable. They agree that he will
require future care, including a case manager, rehabilitation assistance and a
job coach.

[67]        
Despite that, there remain areas of dispute which result in
significantly different positions as to quantum of damages in the three
categories to be assessed.

Future Income Loss/Loss of Earnings Capacity

[68]        
The plaintiff says that he is not competitively employable. While he
acknowledges that obtaining some form of supportive employment is important in
terms of managing his long-term mental health, the plaintiff says that
prospects for such employment cannot be a basis for or considered to be a
source of residual income earning capacity. He says he has no residual earning
capacity.

[69]        
In considering his pre-accident earnings potential, the plaintiff says
that he probably would have gone into a mechanics trade.

[70]        
The plaintiff relies in part on the expert reports of Dr. Gordon
Wallace. Dr. Wallace provided a range of occupational options which were
open to Mr. Hermanson based on his pre-injury vocational attributes and
interests. These ranged from direct entry occupational options to
apprenticeable trades, including automotive and heavy duty mechanic to college
certificate programs, such as draftsman, telecommunications technician, and
automotive/heavy equipment parts person. He then concluded as follows:

The earnings
which Mr. Hermanson could have enjoyed from the occupational options that
he could have accessed prior to the 2010 accident would have ranged
significantly depending upon the individual’s demonstrated competence,
employment opportunities, union affiliation, etc. I would therefore
recommend that a Labour Economist be consulted in order to provide information
regarding his pre-injury earning capacity.

[71]        
The plaintiff did indeed obtain such an opinion from Robert Carson,
although with a narrowed focus. Specifically, Mr. Carson articulated the
issue presented to him by counsel for the plaintiff as follows:

You have advised that Mr. Hermanson
was interested in trades occupations, particularly those involving mechanical
repair work. You have asked for information with regard to earnings in trades
jobs in B.C. and in Alberta.

[72]        
In response, Mr. Carson reviewed selected statistical and census
data. He also considered adjustments for contingencies, including labour force
participation rates, unemployment rates and part-time factors, and for non-wage
benefits. His report then sets out estimates for present value of future loss
of income in three employment scenarios as follows:

Table 1 ‑ B.C. Registered Apprenticeship
Certificates…$1,616,600

Table 2 ‑ B.C. Heavy-Duty Equipment Mechanic…$1,957,200

Table 3 ‑ Alberta
Males with Trades Certificates…$2,322,000

[73]        
All of these are net present values and assume the plaintiff would work
to age 70. Tables incorporating the same contingency assumptions are
included in the report to allow any level of annualized earnings to be used to
calculate net present values.

[74]        
The plaintiff argues, however, that the statistically-based analysis of
the plaintiff’s earnings potential underestimates his actual earnings
potential. Instead, the plaintiff says that he, like many of his high school
friends, would have travelled to Alberta for work in or connected with the oil
industry. He argues that he had the potential to obtain a heavy duty mechanic
trade certificate. The plaintiff says that this, together with the specific
examples of earnings introduced into the evidence, support an annualized loss
of earnings of $110,000 to $130,000 per year. Using the tables in Mr. Carson’s
report, he says that the net present value of future income loss is in the
range of $2,800,000 to $3,375,000 to age 65.

[75]        
The defendants acknowledge that the plaintiff is competitively
unemployable but say that there must be some allowance for income generated in
the supported employment settings the plaintiff is likely to obtain over his
lifetime. The defence agrees that the plaintiff should have a job coach to
assist him in finding such positions, but with that an allowance of $12,000 per
year on average should be made.

[76]        
Given the plaintiff’s age at the time of his injury, as well as his academic
performance, the defence stresses the uncertainty of what his future career
path would have been. As a result, it says a broader range of options that were
realistic for this plaintiff must be considered in assessing the loss of
earning capacity.

[77]        
In addition, the defendants say on the whole that the plaintiff had not
shown himself to be highly motivated and, therefore, although there was a
possibility that he would have completed a trade certificate as an automotive
service technician, it is less likely that he would have gone on to become a
heavy duty mechanic.

[78]        
Still further, the defence says that there is not sufficient evidence on
which to base the assessment of exceptional earnings in the Alberta oil fields
attained by the plaintiff’s witnesses.

[79]        
The defendants also say that the plaintiff may have retired early, as
his mother did.

[80]        
Taking all of those types of considerations into account, the defendants
say the pre-injury earnings potential should be assessed at $1,150,000.

Costs of Future Care

[81]        
The plaintiff points to the evidence of Ms. Chorney and Ms. Hermanson.
Each of them describes the very high level of assistance the plaintiff
continues to require. They say that the expert medical and rehabilitation
evidence also makes it clear that extensive support must be in place for the
plaintiff for the rest of his life.

[82]        
The plaintiff relies on the report of Janice Landy for most of the
specific quantification and costing for those needs. Her report considers and
incorporates the recommendations made by medical practitioners including Dr. Stewart,
as well as her own assessment of the plaintiff in making her recommendations
for various categories of future care.

[83]        
The report of Christine Clark, a labour economist, is provided by the
plaintiff to calculate the net present value of those recommendations. That
calculation ranges between $608,528 and $798,940. The plaintiff says in
addition that a substantial allowance must be made for the plaintiff to be able
to use a taxi in the future, as he is at risk of prematurely losing his driving
privileges. He also says that there must be a contingency fund set aside. This
results in a submission for an award of $888,897 to $1,224,895.

[84]        
The defendant says that the items of future care that they agree need to
be provided, delivered at an appropriate level, should result in a much more
modest award. In addition, they argue that the extent of and manner of delivery
of some of the most costly items claimed by the plaintiff are not justifiable.
They rely on reports of Dr. Travlos and Laura Smith.

[85]        
One of the most expensive recommendations by Ms. Landy is for a
rehabilitation assistant. The defendants agree that allowances should be made
for the services of a rehabilitation assistant but say that much less money is
required for that. They say that given the plaintiff’s abilities, the number of
hours of assistance required is significantly overstated. They also point out
that a large portion of the costs set out by Ms. Landy is for travel time
for a rehabilitation assistant. Those costs can be reduced by having a
rehabilitation assistant provide the services remotely much of the time.
Further, they say that allowances must be made for the fact that the plaintiff
may live in a community where a rehabilitation assistant would not have to
travel to see the plaintiff.

[86]        
The defendants also argue that the allowances for psychological
consultation should be far less than what is budgeted for by Ms. Landy
given that the plaintiff does not presently have a psychiatric condition.

[87]        
There are other areas of dispute, but the variance in quantum arising
from those disputes is much more modest. They include: speech, language
therapy, and gym passes.

[88]        
They argue that an appropriate award for costs of future care would be $213,000.

In-trust Claim

[89]        
The plaintiff advances in-trust claims on behalf of both Nancy Hermanson
and Joleen Chorney. The plaintiff says an assessment is required of the
collective value of those services during different periods following the
injury, including the period of time that the plaintiff was in the hospital,
then the “acute phase” upon discharge from the hospital, and then providing
transportation prior to the plaintiff acquiring his driver’s licence and the
ongoing assistance. He argues an appropriate award is $25,000.00 for each of
Nancy Hermanson and Joleen Chorney for a total of $50,000.

[90]        
The defendants say that any services that attract an award for an
in-trust claim must be above and beyond what would reasonably be expected from
the family relationship. They say that Nancy Hermanson should receive some
compensation for the period of time immediately after the plaintiff’s discharge
from hospital for her time assisting the plaintiff. In respect of the balance
of the claims advanced, the defendants say that the services do not meet the
legal standard established by the authorities. They say that an appropriate
award for Nancy Hermanson is $7,000.

[91]        
In respect of Ms. Chorney, the defendants say that none of the
claimed services meet the test required to justify an award and no allowance
should be made for her.

Analysis

Loss of Earning Capacity

[92]        
The assessment of an appropriate award requires that I determine the
plaintiff’s pre‑injury earning capacity and what, if any, residual
earning capacity he has. The difference will represent the appropriate award.
There are obvious challenges to such an assessment with such a young plaintiff,
who had yet to establish a career path or pattern of earnings.

[93]        
There is no question here that the plaintiff has established a real and
substantial possibility of a loss of income in the future. The parties agree
the plaintiff is competitively unemployable.

[94]        
In Westbroek v. Brizuela, 2014 BCCA 48, the court commented on
the alternative approaches to assessment and damages for loss of earnings, but
reinforced that whichever approach is to be applied, it is still an assessment:

[63]      What is readily apparent from a comparison between Rosvold
and Westbroek, is that in the case at bar the future projection of loss
is based on an existing, proven, and modestly successful business: historical
earnings was therefore a more useful basis on which to assess future loss of
earning capacity in this case than was the case in Rosvold. The
assessment of $30,000 already takes into account many of those contingency
factors mentioned by Huddart J.A. at para. 16 of Rosvold.

[64]      In Perren v. Lalari, 2010 BCCA 140 at para. 32,
this Court said that a court could adopt either an earnings approach to the
assessment of damages for future loss of earning capacity or the capital asset
approach:

A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, 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, or a capital asset approach,
as in Brown. 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
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.
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.

However, Perren should not be taken to suggest that,
in adopting an “earnings approach”, the assessment of damages for loss of
earning capacity does not remain just that − an assessment.

(Emphasis
in original)

[95]        
In the circumstances of this case, the capital asset approach is
appropriate. In Jurczak v. Mauro, 2013 BCCA 507, the court said that in
such circumstances, though the approach is not a purely mathematical one,
mathematical aids may be of some assistance. Specifically at paras. 35 to
37, it said:

[35]      Quantifying a loss may be aided by some
mathematical calculation, but there is no particular formula. As stated in Rosvold
v. Dunlop, 2001 BCCA 1:

[8]        The most basic of those
principles is that a plaintiff is entitled to be put into the position he would
have been in but for the accident so far as money can do that. An award for
loss of earning capacity is based on the recognition that a plaintiff’s
capacity to earn income is an asset which has been taken away. Where a
plaintiff’s permanent injury limits him in his capacity to perform certain
activities and consequently impairs his income earning capacity, he is entitled
to compensation. What is being compensated is not lost projected future
earnings but the loss or impairment of earning capacity as a capital asset. In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss but past earnings are not the only factor to consider.

…

[11]      The task of the court is
to assess damages, not to calculate them according to some mathematical
formula. Once impairment of a plaintiff’s earning capacity as a capital asset
has been established, that impairment must be valued. The valuation may involve
a comparison of the likely future of the plaintiff if the accident had not
happened with the plaintiff’s likely future after the accident has happened. As
a starting point, a trial judge may determine the present value of the
difference between the amounts earned under those two scenarios. But if this is
done, it is not to be the end of the inquiry. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence.

…

[18] The assessment of
damages is a matter of judgment, not calculation. …

[Emphasis added; citations
omitted.]

[36]      This process is “an assessment rather than a
calculation” and “many different contingencies must be reflected in such an
award”: Barnes v. Richardson, 2010 BCCA 116 at para. 18.
“Ultimately, the court must base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable”: Parypa v.
Wickware, supra, at para. 70.

[37]      With that said, if
there are mathematical aids that may be of some assistance, the court should
start its analysis by considering them. For example, in Henry v. Zenith
(1993), 31 B.C.A.C. 223 at paras. 44-48, 82 B.C.L.R. (2d) 186 (C.A.), this
Court held that a trial judge’s failure to consider an economist’s projections
of a plaintiff’s lost future earning capacity contributed to the judge
committing an error in principle, which “resulted in a wholly erroneous
estimate of the damages”.

[96]        
Here both the plaintiff and defence have tendered economists’ reports.
There are differences in how they have approached various positive and negative
contingencies. Mr. Carson and Mr. Hildebrand simply have different
views on some of those considerations. In the context of my assessment of
damages, I do not find it necessary to resolve those differences of opinion.

[97]        
They have also selected or have been asked to consider different subsets
of statistical data in presenting their calculations. Mr. Carson focussed
on certain trades subsets that have generally higher earnings levels. Mr. Hildebrand
considered a broader subset which incorporates several groupings with
relatively lower earnings.

[98]        
The plaintiff also introduced specific examples of earnings from friends
of Mr. Hermanson who have decided to pursue employment in Alberta in the
oil industry or related trades (Tyler Moore and Ryan Durkee) and also some
persons not known to Mr. Hermanson working in the mechanics trade also in
Alberta (Curt Zimmerman and Daniel Greff). It is the plaintiff’s assertion
that given Mr. Hermanson’s close association to some of those individuals,
it is entirely likely, not just a possibility, that he would have followed a
similar path and generated considerably higher earnings than the statistical
data relied upon by the economists.

[99]        
Evidence capable of signalling what the plaintiff might have done comes
from descriptions of his family background, scholastic achievements, and his
personality as described by the expert and lay witnesses.

[100]     He was
raised in an environment where fiscal responsibility and positive work ethic
were the norm. He was, in addition, raised to appreciate the importance of some
form of education. Certainly that element is supportive of a conclusion that Mr. Hermanson
would have strived to earn a good income.

[101]     In respect
of his scholastic achievement, all agree that acquiring a trade was likely the
furthest education he would complete. There are, of course, a variety of
trades. In addition, circumstances might have intervened that would have
derailed that endeavour.

[102]     The
defendants noted a variety of comments in the academic records regarding modest
effort. In addition, Mr. Hermanson had not done much toward pursuing a
trade as his high school education concluded and to the time of the accident.
In my view, while that is relevant, it would erroneous to give it too much
weight. Mr. Hermanson, by all accounts, was associated with a group of
peers who, at least in the early stages of their lives, have been successful.
He certainly possessed the intellectual capacity to acquire a trades
certificate and had interests consistent with that. That is not offset to any
great extent by what happened or did not happen between June and November 2010.

[103]     In terms
of his personality, the evidence satisfies me that he was inclined to work hard
on those things that were of interest to him and/or when he was motivated. He
was motivated by monetary return and possessed characteristics that are
generally desirable in an employee.

[104]     In my
view, the position of the defence is not supported by the evidence.
Effectively, its position is based on eliminating from the possibilities any
occupations requiring higher education (and therefore the higher earnings
streams) but leaving everything else in. While they do suggest a somewhat
arbitrary weighting, their position is really based too much on statistics and
not enough on the evidence specific to this plaintiff.

[105]     The
plaintiff, on the other hand, argues that statistics should largely be ignored
and the specific earnings examples of four individuals should be the evidence
primarily relied on.

[106]     In my
view, both positions go too far in their respective directions.

[107]     It is my
conclusion that Mr. Hermanson would have likely pursued a trade in the
higher earnings spectrum of those that the economists have concluded he could
have done pre-accident.

[108]     In
considering the evidence of the individual earnings levels as presented by
witnesses for the plaintiff, significant caution must be exercised. Neither
economist was asked specifically why they did not consider specific earnings
levels of specific individuals, but in circumstances such as these, there is a
strong argument to be made that statistics which, by necessity, blend high
income earners, such as those presented by the plaintiff, with those who have
not achieved such earnings is a more reasonable approach. Not all of the
witnesses who were called had indicated that it was their intention to stay in
their high earnings positions in Northern Alberta, and it seems logical that
many, including possibly Mr. Hermanson had he gone to the oil industry at
all, would feel the same. On the other hand, one must recognize that Mr. Hermanson
is part of a social group, many of whom had elected, at least in their early
years of employment, to pursue such jobs.

[109]     In my
view, such evidence is merely a consideration in assessing the value of the
lost capital asset. There is certainly a substantial possibility that Mr. Hermanson
would have, at least in the short term, pursued such work. It is difficult to
measure the likelihood of that and even more difficult to determine how long he
might have stayed in such a position.

[110]     The
defence argued that the plaintiff might have retired early like his mother.
While that is a possibility, such a decision would logically flow from a
relatively high earnings stream and/or prudent savings habits to enable such a
decision. It is not reasonable for the defence to say that the plaintiff would
have both been a low earner with limited motivation and retired early.

[111]     In my
view, the appropriate assessment of the plaintiff’s pre-injury earnings
capacity is $1,800,000.

[112]     I must
next assess the residual earning capacity of the plaintiff. Competitive
employment is defined by Dr. Wallace (Exhibit 7 ‑ Tab 1(c) at
p. 15) as “…the ability to engage in work activities that generate
remuneration based on performance capabilities”. As indicated, the defence
acknowledges that the plaintiff is not competitively employable but says that
some allowance must be made for remuneration from supported employment
scenarios.

[113]     The only evidence
before me on this subject is an acknowledgement by some of the experts that
some supportive employment positions are paid. There is no evidence as to how
the payment is made; that is, whether it is in the form of an honorarium or
wages and benefits, or what statistical data exists if any as to what might be
expected. Despite this, the defence argues that an arbitrary assessment of
$12,000 annually should be made. In my view, this is not a supportable
proposition. The challenges that the plaintiff has faced in retaining
employment do not bode well for him securing a paid position even in a
supportive environment. In addition, it has been noted that the longer time
goes on, the greater the likelihood that periods of unemployment will be
extended between periods of employment even in supportive positions.
Accordingly, it my view that it would be highly speculative to attach any
monetary value to this.

[114]     I make no
reduction for any residual earning capacity.

Costs of Future Care

[115]     Both
parties have referenced relevant authorities, and they agree on the applicable
principles. The plaintiff is entitled to compensation for care that is
medically justified and that is reasonable, based on the medical evidence.

[116]     Each party
fairly point to authorities that apply that general principle but articulate
its boundaries differently.

[117]    
The plaintiff refers to Krangle (Guardian ad litem of) v. Brisco,
2002 SCC 9 at paras. 21 and 22:

[21]      Damages for cost of future care are a matter of
prediction. No one knows the future. Yet the rule that damages must be assessed
once and for all at the time of trial (subject to modification on appeal)
requires courts to peer into the future and fix the damages for future care as
best they can. In doing so, courts rely on the evidence as to what care is
likely to be in the injured person’s best interest. Then they calculate the
present cost of providing that care and may make an adjustment for the
contingency that the future may differ from what the evidence at trial
indicates.

[22]      The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require. Jane Stapleton, "The Normal Expectancies Measure in
Tort Damages" (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58,
that the tort measure of compensatory damages may be described as the
"’normal expectancies’ measure", a term which "more clearly
describes the aim of awards of compensatory damages in tort: namely, to
re-position the plaintiff to the destination he would normally have reached …
had it not been for the tort". The measure is objective, based on the
evidence. This method produces a result fair to both the claimant and the
defendant. The claimant receives damages for future losses, as best they can be
ascertained. The defendant is required to compensate for those losses. To award
less than what may reasonably be expected to be required is to give the
plaintiff too little and unfairly advantage the defendant. To award more is to
give the plaintiff a windfall and require the defendant to pay more than is
fair.

And Williams v. Low, 2000 BCSC 345 at para. 25:

[25]      This is not an exercise
in how to save money. This is an analysis of how best to compensate the
plaintiff for her grievous injuries and her loss of quality of life that
occurred through no fault of her own but, rather, because of the negligence of
the defendant. This is not a discussion of retribution but, rather, one of
compensation.

[118]    
The defence references Brennan v. Singh, [1999] B.C.J. No. 520
(S.C.) at para. 78:

[78]      In an historical
perspective, here revisiting the trilogy, the test for the standard of care
generally is whether a reasonably-minded person of ample means would be ready
to incur the expense. When measuring reasonableness, the expense should not be
a squandering of money.

[119]    
In addition, they point to Bystedt v. Hay, 2001 BCSC 1735 at paras. 162-163,
affirmed 2004 BCCA 124:

[162]    The test for an award of future care is
"whether a reasonably-minded person of ample means would be ready to incur
the expense. When measuring reasonableness, the expense should not be a
squandering of money": Brennan v. Singh, [1999] B.C.J. No. 520
(S.C.). In formulating this test Harvey J. referred to the decision of Zapf
v. Muckalt (1995), 26 B.C.L.R. (3d) 201 (C.A.), where Donald J.A. stated at
para. 36:

I think the proper test is
reasonableness and that the psychological and emotional factors influencing the
choice of where to live must be considered: Andrews v. Grand &
Toy Alberta Ltd… Medical necessity is too stringent a test.

[163]    Thus, the claim must be supported by evidence that
establishes the proposed care is what a reasonable person of ample means would
provide in order to meet what the plaintiff "reasonably needs to expend
for the purpose of making good the loss": Janiak v. Ippolito (1985),
16 D.L.R. (4th) 1 (S.C.C.), at 17, quoting from the decision of Darbishire
v. Warran, [1963] 1 W.L.R. 1067 at 1075. It must also be based on an
objective test of what is moderate and fair to both parties: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); and, Andrews, supra. As
stated in Andrews, at page 235, "What is being sought is
compensation not retribution." Similarly, in Sigouin (Guardian ad litem
of) v. Wong (1991), 10 C.C.L.T. (2d) 236 Melvin J. stated at p. 281:

…An award [for future care] must not take the form of
retribution or punishment of the tortfeasor, but should reflect the needs of
the plaintiff as demonstrated by the evidence.

[120]    
It is appropriate to begin this analysis with some observations
regarding the plaintiff’s needs and the purposes for which services and care
are being put into place. There is little dispute between the parties here.
They are concisely and accurately summarized by Dr. Stewart in her October
9, 2013 report at p. 13, where she says:

…In my opinion, he will require
long term case management, monitoring and intervention to ensure that he
maintains his health, his home, his mental health, his finances and his social
and community life.

[121]     The
medical evidence generally, and particularly that of the neuropsychologists,
physiatrists and occupational therapists, identifies the types of services that
may be appropriate to address those needs. With that, the parties agree that
there is a need for a one-on-one rehabilitation assistant, counselling,
vocational consultation, occupational therapy, home maintenance, health
maintenance and conditioning. The dispute in respect of these items of future
care is as to the level of service. The parties disagree as to whether speech
and language therapy, transportation and gym passes are properly provided for
at all.

[122]      There is
no doubt that the plaintiff at the time of trial, relies heavily on his mother
and girlfriend. They assist with most instrumental activities of daily living.
The defence argues that Nancy Hermanson and Joleen Chorney do more than is
necessary for the plaintiff. I comment on this below in dealing with the
in-trust claims, but generally I conclude that the plaintiff does require
considerable assistance. Nancy Hermanson was accurately described by Dr. Schmidt
as under-reporting at points in time, but the reality of her son’s situation
was recognized by her during her evidence at trial. I find that evidence of
Nancy Hermanson to be compelling. In part, this is because I find her to be a
credible and reliable witness. In addition, her evidence is corroborated by the
reports of the neuropsychologists, neuropsychiatrists and the physiatrists.
Those reports identify and/or predict the very deficits that she describes from
this serious injury.

[123]     It must be
recognized, however, that the manner in which Ms. Hermanson or Ms. Chorney
address the plaintiff’s needs is quite different than how the services would be
delivered by a professional under the guidance of a case manager. The former is
woven into the daily routine with no separation, specific focus or identified
objective. The latter professionally delivered service would come from
individuals with specialized skills attending with agendas, time lines,
accountability and performance measures. In addition, the plaintiff’s
relationship with professionals would obviously be qualitatively different.
These differences make it unrealistic to use estimates of the time spent
assisting the plaintiff given by Ms. Hermanson and Ms. Chorney as a
measure for what professional time would be required. In addition, their
estimates are just that. No method of recording time spent was employed.

[124]     Each party
relies, in part, on reports of physiatrists to support their positions as to
the extent of the services.

[125]     Dr. Stewart
for the plaintiff says in her report at p.13:

It is unlikely given his history
to date that Mr. Hermanson would be able to live independently without a
lot of support. It is evident that he has already abandoned some strategies he
learned earlier to compensate for his memory problems, such as putting his
belongings in a consistent place. He depends on his mother for reminders and
for the management of his money. He is socially isolated and spends most of his
time in solitary passive pursuits (playing X-box and watching movies)

[126]    
Dr. Travlos for the defence includes in his opinions on the issue
the following:

…Mr. Hermanson has plateaued in his neurologic and
functional recovery and, although he can be guided to maintain and manage his
life, further therapies and interventions are not expected to improve on his
level of function and, therefore, there is no further need for ongoing
rehabilitative treatments.

Dr. Stewart has indicated that Mr. Hermanson
sustained a severe head injury, which I certainly agree with. She indicated
that he is not likely to live independently without a lot of support. In my
previous report, I indicated that he had not demonstrated the capacity to live
independently, but he had yet to demonstrate this lack of ability or indeed the
capacity to do so. However, I thought he would need some structured assistance
and support to return to independent living if this was desired and, therefore,
it is a matter of just how much assistance that he is going to need that is in
dispute.

Ms. Landy has provided a
Life Care Plan that entails a lot of additional assistance, a lot of which I do
not agree with. For example, Mr. Hermanson is functioning reasonably well
now without one-to-one rehabilitation eight hours per week and would not be
expected to, in fact, tolerate that amount of additional assistance on a weekly
basis. If he was to move out of his parents’ home and if he was to live independently,
then he would require some one‑on-one treatment for a period of time,
which I would not expect to be more than four hours per week at most.
Alternatively, he could be living in a group home environment where he would
not require much other than the group home environment to support him.

[127]    
In another report, he challenges the number of hours for the various services
that have been compiled by Ms. Landy. He says that her recommendations for
rehabilitation assistance, psychological counselling, kinesiology, and case
management are excessive. The defence characterized it this way in their written
argument:

94.       …Her recommendations
call for unrelenting, non-decreasing amounts of excessive help. The involvement
of caregivers should be judiciously tailored with a focus on specific
attainable goals. The less interference in his life and with his independence,
the better it will be for the plaintiff in the long run

[128]    
Dr. Stewart has this to say of Dr. Travlos’ opinion:

In response to this opinion, I
would dispute Dr. Travlos’ opinion that Mr. Hermanson is functioning
reasonably well. In fact, he requires a lot of guidance on a daily basis and
this is provided by his mother. Mr. Hermanson has demonstrated an
inability to sustain compensatory strategies for his memory problems and
requires assistance for the management of his money. He is socially isolated
and has proven unable to sustain an exercise program on his own. There is a
general consensus among examiners that he is not competitively employable. He
is at risk of significant depression if his insight into his deficits
increases. For all of these reasons it is my opinion that the level of
intervention recommended by Ms. Landy is justified. If Mr. Hermanson
moves out of his parents’ home he will require considerable support, in an
increased rather than a decreased amount.

[129]     In
general, she supports her opinion by saying that brain injured persons, such as
the plaintiff, can deteriorate rapidly without sufficient support. Dr. Schmidt
made similar observations.

[130]    
Dr. Dost concludes that the plaintiff can live independently
because he can drive. Specifically he says:

The sum total of these
neuropsychiatric deficits would not preclude him from his basic or instrumental
activities of daily living. Indeed, he is now operating a motor vehicle
unrestricted, which is the most demanding of the basic and instrumental
activities of daily living, thereby defining his minimal level of memory,
processing speed, multitasking, attention, forethought, judgment, eye/hand
coordination and visuospatial abilities. Since he is able to complete this
unsupervised, there is no reasons he cannot complete his basic or instrumental
activities of daily living unsupervised.

And further:

…I disagree with Dr. Cameron
that the Plaintiff cannot live independently. This position is illogical since
this gentleman operates a motor vehicle independently. This requires a high
level of cognitive function, awareness, judgment and insight at a level which
would permit independent living. It is not reasonable to state that he is safe
to drive in an environment in which not only is he at risk but the general
population is at risk should his cognition fail yet state he cannot live
independently because he is a safety risk to himself.

[131]     Dr. Stewart
says that it is simply not possible to draw that direct correlation. I agree.
There is no doubt driving is a complex task, but it is materially different
than organizing one’s life to live independently.

[132]     Several of
the experts, including Dr. Smith, Dr. Cameron and Dr. O’Shaughnessy,
indicate that Mr. Hermanson is at a significantly heightened risk of
developing psychological or psychiatric disorders. To some degree, services
that have been recommended for the plaintiff are to prevent such disorders from
taking root. In part, rehabilitation assistance is considered necessary to
ensure that Mr. Hermanson is looking after himself and that any precursors
of problems can be identified at an early stage. In addition, it is a principal
reason why having a job coach available to assistant him in finding placements
for supportive employment is considered necessary. Those positions of
employment are not focussed on remuneration but rather on benefitting the
plaintiff psychologically and giving him purpose. Dr. Smith articulates
this effectively in the quote in paragraph 45 above.

[133]     The need
for counselling is established. The appropriate amount is far more subjective.

[134]    
In its written submission, the defence produced the following table:

[135]    
The plaintiff produced the following table in its argument:

[136]    
The provision for the contingency reserve and the taxi allowance do not
come from Ms. Landy’s report. The plaintiff argues that they are
nonetheless justified based on the evidence.

[137]     The
contingency reserve is proposed by the plaintiff on the basis that the
plaintiff’s situation will deteriorate with age and his needs will increase.
While some of the experts reference that possibility, those observations were
known to Ms. Landy at the time she made her report. In addition, the very
experts who made the observations endorsed her recommendations. I infer that
they balanced the prospective deterioration with the potential that there would
be other periods when care needs would be less. They were not asked about the
need for a contingency reserve.

[138]     Those that
did not agree with Ms. Landy, specifically Dr. Travlos, say the
levels suggested are excessive as presented even without such a reserve.

[139]     The amount
suggested is arbitrary and represents a 20 to 25-percent addition. I struggle
with this proposition given the lack of any endorsement by the experts.

[140]     The
argument for a taxi allowance is based on evidence from Dr. Cameron and Dr. Travlos
that indicates the plaintiff’s brain injury leaves him with less capacity to
compensate for the normal effects of aging on the brain that everyone
experiences. (See also para. 27 above referencing “early post traumatic
cerebral atrophy”.) The specific connection of this aging effect to driving
arose in the cross-examination of Dr. Cameron. The plaintiff says that he
may as a result find himself unable to drive much earlier in life than
otherwise would be the case. In argument, he says an allowance for $100,000
should be made.

[141]     The
specific proposition of a taxi allowance was not, however, commented on by any
expert, including Dr. Cameron. It ignores the prospects of public
transportation. Again, based on the evidence, it is a proposition that is not
well supported or developed in the evidence. There is little question though
that if the plaintiff loses his ability to drive, it would have a significant
negative impact of his psychological well-being.

[142]     I do not
intend to do a detailed analysis of the differences in the actuarial approaches
taken by the plaintiff’s and defendants’ actuaries since the result here must
be an assessment. There are simply too many unknowns and variables to make any
calculation realistic.

[143]     The
reports and evidence of Dr. Smith, Dr. Stewart, Garth Mercer, Dr. Miller
and Dr. Schmidt all, from their own perspective, echo the need for a more
intensive version of future care.

[144]     The
reports of Ms. Smith and Ms. Landy vary dramatically.

[145]     Ms. Smith’s
opinion contains recommendations for ongoing costs for a fitness pass, case
management kinesiology and home maintenance. When added to one‑time
allowances for occupational therapy and vocational assessment, the net present
value of her recommendations is $113,166. In her viva voce evidence, Ms. Smith
indicated that she relied heavily on the plaintiff’s self-report to determine
his needs. Given all the evidence as to the plaintiff’s lack of insight and
generally as to his needs, this is not appropriate. It is of note that the defence
does not put any emphasis on her opinion.

[146]     As noted
by the defence, one of the most financially significant disputes relates to the
nature and extent of rehabilitation assistance.

[147]    
In argument, the defence points to specific examples of things the plaintiff
can do or has done at times and says that these items of success show that the
more intensive future care is unnecessary. Examples are set out in their
argument as follows:

·       
Mr. Hermanson has been at home alone both in Salmon Arm and
Kamloops on numerous occasions and never brought any harm on to himself.

·       
Mr. Hermanson drives unsupervised and is considered by those
close to him (Mrs. Hermanson, Dylan Burton, and Jolene Chorney) as being a
safe driver and has not harmed himself.

·       
He has made his way from Salmon Arm to Vancouver to attend at medical
appointments including overnight stays in Kelowna and in Vancouver and has never
harmed himself.

·       
Mr. Hermanson has safely handled rifles while hunting, at
target practice, skeet shooting, and while attending the shooting range.

·       
He passed his course work and his written examination for his Firearm
License in September 2013 and went to the shooting range thereafter all with
the knowledge of his stepfather, Doug Vandenburg (using the rifle kept in the
family home which was given to him by Mr. Vandenburg)

·       
He has handled work tools at his various post-Accident jobs and
never harmed himself.

·       
He has worked in hazardous environments such as Canadian Tire and
has never harmed himself (Mr. Darin Kurucz transcript, page 29, lines 8
to 14).

·       
He has gone to the gym unsupervised on a fairly consistent basis
and has never harmed himself.

[148]     Having
regard to the whole of the evidence and the expert evidence that provides
insight into the subtleties of such severe brain injuries, the defence position
is not accepted. The plaintiff’s situation is complex and extrapolating from
individual tasks that the plaintiff can do while under the umbrella of
supervision by his mother and Ms. Chorney to the position advanced by the
defence is unrealistic.

[149]     I accept
the plaintiff’s expert evidence, including that of Dr. Cameron, Dr. Schmidt,
Mr. Mercer and Dr. Stewart, regarding the risks to the plaintiff’s
overall health if not monitored regularly.

[150]      It must
also be recognized that the plaintiff is still young and living at home. It is
apparent from his evidence and the evidence generally that the realization that
his life is not evolving in the same way as friends is setting in. As time goes
on, the divergence between his life’s path and that of his friends may take its
toll on his psychological health. The risk that he may not be able to maintain
his friendships and other relationships, such as with Ms. Chorney, and
that he will not be working in the competitive environment all make the
potential for increased care needs very real. It is this future that the
medical experts warn of. In my view, their concerns are well-founded. Several
experts, including Dr. Schmidt, Dr. Cameron and Dr. Travlos,
identified and foreshadowed the types of problems those with severe traumatic
brain injury, including the plaintiff, commonly encounter. This lends
credibility to those who have seen the plaintiff demonstrate some of those
problems already. It also informs me regarding the future. It is, however, a
long future that will evolve in its own way.

[151]     The role
of a case manager is to monitor what services are needed, ensuring the
plaintiff understands and is receptive to when and from whom the services would
come. Undoubtedly, those needs will ebb and flow over the years. Effective case
management should allow for some moderation of service costs from what Ms. Landy
has recommended, as that manager can monitor needs on an ongoing basis.

[152]     As
indicated, the most significant future care item is the rehabilitation
assistance (“RA”). The defence argument stresses the things that the plaintiff
has or can do, in order to support their position that far less RA resources
are justified and can be provided remotely much of the time. These arguments
are not entirely without merit, but they do not support the significantly
reduced services argued by the defence.

[153]     The things
the plaintiff can do must be placed in context. For example, the fact that the
plaintiff has succeeded in obtaining some employment is a positive, but none of
those jobs have lasted and all employers noted the deficits. The plaintiff has
not hurt himself when left alone, but he is not living independently and has
not managed his instrumental activities of daily living. The extrapolation the
defence urges is not supported by the evidence. Another example is driving
where, again, the defence and Dr. Dost say supports conclusions about
living independently that I simply do not accept.

[154]     As noted,
all of this makes a mathematical calculation on the award for costs of future
care impossible. As a result, I will not spend a great deal of time dissecting
the individual line items set out in the tables above. It does, however, inform
my assessment and provide some parameters.

[155]     Before
making that assessment, I will address some other specific issues raised by the
defence.

[156]     First is
the allowance made by Ms. Landy for travel expense for the rehabilitation
assistant. She is firmly of the view that a rehabilitation assistant must meet
personally with Mr. Hermanson. The defence is of the view that only some
of the meetings must be in person and that others can be dealt with remotely by
phone or video link, such as Skype. The defence also notes that Mr. Hermanson
may reside in an area where rehabilitation assistants maintain businesses, and
therefore much of the travel may be eliminated in that way. It is my conclusion
that a case manager can monitor these possibilities and that it is reasonable
to moderate the costs projections based on them. Communities do generally grow
over time and with that comes more service availability. Moves by the plaintiff
over his lifetime are certainly possible, although one cannot predict if that
might be to larger or smaller communities. Again, it is not possible to be
mathematical in making any of these adjustments.

[157]     Speech and
language therapy is proposed by Ms. Landy. Dr. Travlos says that the
problems the plaintiff is left with cannot be solved, and therefore there is no
reason for counseling with regard to them. The plaintiff struggles with clarity
as he tires. There are strategies that he can employ, and it is reasonable for
him to receive some occasional therapy to ensure he can manage the problem. To
date, the plaintiff has shown that he may forget or at least stop using compensatory
strategies that he is given. The amount at issue is modest in any event.

[158]     There is
general agreement that the plaintiff needs to maintain his physical fitness.
Again, giving him occasional guidance to ensure he is doing this in an
appropriate and safe manner is reasonable. The defence says that an allowance
for a gym pass is not justified as it is a expense the plaintiff had been and
would continue to incur in any event of the injury. This proposition has merit.

[159]     It is
impossible to predict all that will occur. It would not be consistent with the
established authorities to make assumptions that are overly optimistic. If
services are underfunded, the risk of the plaintiff’s functioning declining and
a viscous circle of inadequate response causing further decline would result.

[160]     This is a difficult
balancing process involving compensation to cover many years of care with many
unknowns. However, it is my conclusion that balancing all of the authorities
and the evidence in this case, a proper assessment is $650,000 for the cost of
future care.

In-trust Claims

[161]    
In their written submission, the defence says:

153.     An
in-trust award should not be made for services that the plaintiff received that
would reasonably have been provided out of natural love and affection of family
members. Compensation should only be provided when the services provided extend
above and beyond what would reasonably be expected from the family
relationship.

Frankson v. Myre, 2008 BCSC 795 at paras. 50-51

[162]    
The plaintiff refers to Spehar (Guardian ad litem of) v. Beazley,
[2002] B.C.J. No. 1718 (S.C.) at para. 50, where the court adopted
the following:

The law is clear that damages are to be awarded for voluntary
services performed by third parties including family members.

In Brennan v. Singh, [1999] B.C.J.
No. 520 (S.C.) the court reviewed the factors to consider in
the assessment of an "in trust claim":

…

94 The subject of "in
trust" claims has been given considerable attention in recent years,
including, particularly, where the services in question have been rendered
within the perspective of a husband/wife relationship or by a child or relative
of the family…

95 In my view, it is useful to
review briefly the factors which are considered in the assessment of such
claims. They are:

(a)  where the
services replace services necessary for the care of the plaintiff;

(b)  if the
services are rendered by a family member, here the spouse, are they over and
above what would be expected from the marital relationship?

(c)  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;

(d)  it is no longer necessary that the
person providing the services has foregone other income and there need not be
payment for such services.

[163]     As noted
above, the plaintiff’s approach is to break the estimated time spent by Ms. Hermanson
and Ms. Chorney into several periods. They then apply an hourly rate of
$45 per hour for the services provided to the estimates of the time spent by
each of them during each of the time periods.

[164]     The first
problem with that approach is the hourly rate. It was drawn from rates quoted
to ICBC for rehabilitation services for rehabilitation assistants. By their own
evidence, much of what Ms. Chorney and Ms. Hermanson did for the
plaintiff was in the form of housekeeping or driving. A specially qualified
rehabilitation assistant would not be performing such functions. The market
rate for such services would be less. There is no specific evidence as to what
those rates would be.

[165]     In
addition, the estimates of time are just that. It is very difficult to separate
out the time spent that meets the criteria set out in the authorities from that
which would be expected out of natural love and affection. As noted above in
the discussion of the future care claim, those tasks that may be compensable
are naturally woven into the daily routine with those that are not.

[166]     Turning
specifically to Ms. Hermanson, the plaintiff argued that one of the time
periods to be incorporated is the vigil in the hospital. Ms. Hermanson
spent many hours at the Kamloops hospital monitoring the plaintiff. This was a
product of the love and concern of a mother and is entirely understandable.
There is no evidence, however, to support that it was a necessary service or
that it was replacing a service that otherwise would have been paid for. The
plaintiff was in a hospital receiving very good and appropriate care.

[167]     Since the
plaintiff’s discharge from hospital, the defence argues that both Ms. Hermanson
and Ms. Chorney do more than is needed or appropriate. Generally, I do not
agree. It may well be that professional delivery of the services would have
been more effective at incorporating learning objectives and strategies, but
that does not make what they did unnecessary. In addition, the line between
that which is compensable in this claim and that which “would reasonably have
been provided out of natural love and affection of family members” is not an
easy one to draw.

[168]     I will not
repeat what I have said earlier regarding what Ms. Hermanson and Ms. Chorney
have done for the plaintiff.

[169]     In my
view, an award of $15,000 for Nancy Hermanson and $7,500 for Joleen Chorney is
appropriate.

Summary

[170]     Through my
assessments set out above, I have come to the following conclusions:

a)    The
amount awarded for loss of earning capacity is $1,800,000;

b)    The amount
awarded for the cost of future care is $650,000;

c)     The total
amount awarded for in-trust claims is $22,500.

[171]     This comes
to a total award of $2,472,500.

[172]     Subject to
any issues affecting entitlement to costs or scale of costs, the plaintiff is
entitled to his costs at Scale B. If there are any issues, either party is at
liberty to bring the matter before me to address.

“D.A. Betton, J.”