IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sangra (Guardian ad litem of) v. Lima, |
| 2015 BCSC 2350 |
Date: 20151214
Docket: M142151
Registry:
Vancouver
Between:
Harry Lovell Sangra,
by his Litigation Guardian,
Simerjit Sangra
Plaintiff
And
Scott Lima and
Christine Sine
Defendants
And
Insurance
Corporation of British Columbia
Third
Party
Before:
The Honourable Mr. Justice Walker
Reasons for Judgment
Counsel for the Plaintiff: | A. Sayn-Wittgenstein |
Counsel for Ms. Sine and ICBC: | K. Armstrong |
Place and Dates of Trial/Hearing: | Vancouver, B.C. October 13-16, 19-23, |
Place and Date of Judgment: | Vancouver, B.C. December 14, 2015 |
Table of Contents
3. Injuries Caused by the
Collision. 9
4. Mr. Sangras Life Prior to
the Collision. 15
5. The Impact of the Collision
on Mr. Sangras Life. 19
Attendance in a Chronic Pain Program.. 42
Regular Ongoing Participation in
Exercise and Work Conditioning Program.. 42
Home Maintenance and Seasonal Yard
Care. 45
Financial Management Assistance. 46
The Position of Ms. Sine and ICBC. 47
8. Loss of Housekeeping Capacity. 63
Past Loss of Housekeeping Capacity. 65
Future Loss of Housekeeping Capacity. 66
Introduction
[1]
Mr. Harry Sangra, an 85 year old plaintiff (born on November 3, 1930),
was the unfortunate victim of a hit and run collision caused solely by the
fault of the defendant, Scott Lima. The collision took place on February 23,
2014, while Mr. Sangra was standing at a bus shelter near the intersection
of 75A Avenue and 120th Street (also known as Scott Road) in Surrey, British
Columbia. Mr. Sangra had been visiting his younger brother in Surrey and was waiting
for a bus to return to his home in Vancouver. Mr. Sangra was an exceptionally
healthy and active 83 year old married man when Mr. Lima struck him. He
suffered devastating injuries, including a brain injury, which nearly cost him
his life.
[2]
Mr. Sangra was required to prove the case on liability because no
admission of liability was made by any of the parties to this action prior to
trial.
[3]
On hearing the evidence of Mr. Lima, who was called as an adverse
witness during Mr. Sangras case, it was readily clear that Mr. Lima is liable for
Mr. Sangras injuries and that his sister, the co-defendant, Christine Sine, who
was the owner of the vehicle Mr. Lima was driving, is vicariously liable for his
conduct. The case was essentially one requiring an assessment of damages.
Liability
[4]
I shall briefly set out my findings a fact concerning the circumstances surrounding
the collision since Mr. Sangra was required to prove liability and also,
because they bear on the nature of the injuries that he suffered.
[5]
Before turning to them, I will pause to note that Mr. Lima was without
counsel at trial and did not offer up a defence to Mr. Sangras case. The
Insurance Corporation of British Columbia (ICBC) added itself as a third
party to the litigation following its determination that Mr. Lima was in breach
of his insurance policy when he struck Mr. Sangra.
[6]
Ms. Sine owned the large Dodge Ram pick-up truck that Mr. Lima was
driving. Mr. Lima, now 25 years old, was driving the truck with his sisters
consent. He had his own set of keys to the pick-up truck. He was also shown on
the insurance certificate as the principal driver.
[7]
The collision occurred close to 5:00 p.m. Before striking Mr. Sangra,
Mr. Lima collided with a vehicle as he was driving north-bound on 120th Street
in light traffic. Before that collision occurred, Mr. Lima had been driving 75
to 80 kilometers per hour (km/h) in the middle lane, then sped up by 5 to 10
km/h, and drove into the rear end of a 1992 Volvo 740 (described to be as heavy
as a tank) that was travelling in the same direction between 20 to 30 km/h.
The force of the collision caused the Volvo to spin around 180 degrees (as if
heading south-bound) and to move forward some 40 to 50 metres into the right
lane of traffic in the opposite direction. The Volvo suffered significant
damage. The trunk was pushed forward into the right rear seat of the vehicle. The
driver could not open his door and had to crawl out through the front passenger
door. The Volvo was determined to be a write-off.
[8]
Mr. Lima fled the scene after he hit the Volvo. He did not stop to check
on its occupants (father and child). He swerved onto the median, recovered, and
then increased his speed as he drove away travelling in a straight line. Although
it was snowing lightly and was dark, there was nothing on the roadway (such as
ice) to cause him to strike the Volvo. There was no suggestion from any of the
eye-witnesses to the collision (including the driver of the Volvo), and I do
not find from Mr. Limas manner of driving, that he was suffering from any
momentary or inadvertent loss of control at any time prior to or in the moments
after he struck the Volvo.
[9]
After Mr. Lima sped away, his truck spun in a manner so that its rear
end crashed into the bus shelter where Mr. Sangra was standing. The bus shelter
was located approximately 100 feet away from where Mr. Lima had struck the
Volvo. Mr. Limas truck remained in place for a few seconds. Mr. Lima then
left the scene, accelerating so quickly that his tires were heard to be squealing
by one witness. Mr. Lima then drove back down 120th Street and turned left
onto 75A Avenue. An eye-witness to both collisions (whose evidence I found
credible and accept) testified that apart from the brief moment when Mr. Limas
truck struck the bus shelter, Mr. Lima appeared to remain in control of
his vehicle. After Mr. Limas truck struck the bus shelter, that same witness
saw Mr. Sangra lying unconscious on the sidewalk, a number of feet away from
the bus shelter, with a glass or rigid plastic sheet from the shelter lying on
top of him.
[10]
Mr. Limas truck damaged the bus shelter when it struck it. Mr. Lima
also caused Mr. Sangra to fly through the air. There was no direct evidence to
prove the actual distance (suggested by some to be 20 feet), but photographs of
the scene show Mr. Sangras blood on the snow covering the sidewalk many feet
away from the bus shelter. In looking at the photographs of the scene of the
accident and hearing the evidence of the eye-witness and the RCMP officer who
attended shortly thereafter, I am satisfied that when Mr. Sangra was struck by
Mr. Lima, he was ejected into the air some 10 to 20 feet before landing on the
concrete sidewalk.
[11]
I agree with the submissions of Mr. Sangras counsel that Mr. Limas account
of events was littered with enormous credibility issues and that much of his
account of events was a concoction. Prior to trial, Mr. Lima provided a sworn
statement to Mr. Sangras counsel setting out his recollection of the events
leading up to both collisions. When confronted during cross-examination
regarding the manifest inconsistencies in his viva voce testimony (where
he claimed to have no memory of events) and his sworn statement, Mr. Lima responded
that when he provided his sworn statement, he was trying to tell Mr. Sangras
counsel what he, Mr. Lima, thought counsel wanted to hear. In his testimony,
he said in respect of his sworn statement, that he assumed that he had to come
up with some sort of answers that would appease plaintiffs counsel. He also
added, I felt I needed to say something thats why I answered the questions
the way I did.
[12]
For this case, I do not need to determine whether Mr. Lima was impaired,
which was put to him in cross-examination, or whether, as he asserted at one
point in his evidence, he may have fallen asleep while driving on 120th before
he hit the Volvo, and woke up only after he hit the bus shelter. Mr. Lima
admitted sole responsibility for both collisions in his testimony. He admitted
that he was driving in a careless manner and said that he should not have been
driving given the physical and mental condition that he was in at the time.
[13]
Even if Mr. Lima woke up after he hit the bus shelter, it is clear from
his testimony that he was only concerned for himself. He did not remain at the
scene to determine the extent of the damage he had caused (even though he
admitted that he saw glass in the bed of his pick-up truck), to determine if
anyone was hurt, or to notify the police. He admitted that he knew the bus
shelter had been damaged and drove off because he was scared for himself. In
his attempt to drive away from the bus shelter, Mr. Lima could not get far
because the trucks transmission was damaged. Still, he did not call for help.
Instead, he pulled off the side of the road and then walked approximately five
kilometres to his sisters home, where he was arrested by the RCMP who found
him there trying to explain to his sister what had taken place.
[14]
In conclusion, I have determined that Mr. Lima was solely responsible
for both collisions. There is no merit to the allegation of contributory
negligence on the part of Mr. Sangra that is contained in the responses to the
notice of civil claim filed on behalf of Ms. Sine and ICBC.
Assessment of Damages
1. Introductory Comments
[15]
The facts that I set out throughout my discussion concerning the
assessment of damages are my findings of fact. Where I note competing
submissions from the parties or contradictory evidence, I provide my ultimate
findings and determination.
[16]
Mr. Sangra was found unconscious, bleeding on the sidewalk. He was
rushed to Royal Columbian Hospital (Royal Columbian) with severe and life
threatening injuries to nearly all areas of his body. According to several
medical doctors, Mr. Sangra suffered massive blunt trauma. Soon after
arrival, his vital signs became unstable. He became acutely hypotensive as a
result of massive internal bleeding caused by trauma and injury to his liver (his
liver was torn off major blood vessels that enter towards the heart). The
liver injury he sustained is typically not survivable (some 85% of patients
with that type of injury die as a consequence). That injury had to be
surgically repaired without delay. Mr. Sangras family was told to expect that
he may not survive. On top of this, Mr. Sangra underwent additional, subsequent,
multiple urgent surgeries at Royal Columbian as a result of his injuries.
[17]
As a result of being struck by Mr. Lima, Mr. Sangra suffered a brain
injury, unstable fractures to his cervical spine, skull fractures, facial
fractures, pelvic fractures, trauma and injury to his liver and spleen, fractured
ribs, a torn rotator cuff (that cannot be surgically repaired), multiple lacerations
(some were severe; one required surgical repair), and significant aggravation
of arthritis in his wrists and knees. More recently, a week before the trial
started, Mr. Sangra underwent further surgery to repair a hernia caused by the
collision.
[18]
Neither Ms. Sine nor ICBC tendered any medical evidence to challenge the
medical evidence led as part of Mr. Sangras case concerning the diagnosis of
his multiple injuries and his prognosis. Apart from questions put to some of
the plaintiffs medical experts in cross-examination, that aspect of Mr.
Sangras case was unchallenged. The evidence tendered by the defence was to
challenge the opinion evidence adduced in Mr. Sangras case concerning his life
expectancy and the scope and cost of his future care needs. I will comment on
those two issues in subsequent sections of these reasons. For now, I will
observe that I found the evidence of the plaintiffs experts in respect of
diagnosis and prognosis, life expectancy, and Mr. Sangras future care needs
(and cost) to be credible and compelling.
2. Issues
[19]
Several issues arise in the assessment of damages:
(a) What
are the appropriate awards for non-pecuniary damages, the cost of future care
in this case, and the loss of housekeeping capacity?
(b) What
impact does Mr. Sangras age and life expectancy have on damages?
(c) Whether
Mr. Sangras wife and adult son (who lived with his father at the time of the
collision) are entitled to in-trust awards, and if so, in what amounts?
3. Injuries Caused by the Collision
[20]
Following his
admission to Royal Columbian and performance of the surgery to repair the
injury to his liver, Mr. Sangra remained in an induced coma for 10 days. He was
generally unresponsive for approximately five weeks, with a portion of that
time spent with his abdomen open to allow for the liver injury to heal. Mr.
Sangra remained in the critical and the intensive care units at Royal Columbian
until March 21, 2014. During this time he was ventilated and intubated,
which led to a tracheostomy (and infection) secondary to prolonged intubation. A
G or feeding tube was inserted to feed him by a liquid diet for several
months. When he was awake, he was delirious. He suffered from severe pain,
physical limitations, and cognitive and psychological impairment. He underwent
numerous surgeries including an emergency hepatectomy, several laparotomies, and
fixations of numerous fractures including the implantation of medical hardware.
He developed anemia secondary to blood loss.
[21]
According to his surgeon, Dr. Robert Granger, for a time it was not
clear whether Mr. Sangra would survive the collision. Fortunately though, he
survived. Dr. Granger opined that Mr. Sangra continues to suffer from
permanent deficits:
He is recovered but will need
further surgical procedures. His injuries have resulted in permanent deficits
that impact activity of daily living, enjoyment of recreational activity, and
may result in further hospitalizations beyond the upcoming hospitalization for
hernia repair.
[22]
I accept Dr. Grangers opinions that typically, Mr. Sangras blunt,
traumatic, life threatening injuries would not be survivable. Those injuries
have adversely impacted on Mr. Sangras daily living and may require further
hospitalization.
[23]
Once Mr. Sangras medical doctors determined that he did not require
intensive care at Royal Columbian, he was transferred to Mount Saint Josephs
Hospital, in the hope that he would improve. He continued to recover there,
through his own perseverance and with the additional, regular, ongoing
assistance of his wife and son. He was then transferred to Holy Family Hospital
in the lower mainland for physical rehabilitation on May 17, 2014. He was able
to ambulate with a two-wheeled walker for short distances on arrival. His
cognition and mobility improved during his stay. He progressed to the point
where he could ambulate with a walker for longer distances and at the time of
his release, he was able to ambulate with a four-wheeled walker for even longer
distances. After his discharge to home on June 16, 2014, Mr. Sangra
improved so that he was able to walk with a cane indoors, with a walker for
longer distances, and a four-wheeled walker outdoors. He presently walks with
the assistance of a cane.
[24]
On the recommendation of
his medical doctors, Mr. Sangras action is brought by his wife as his
litigation guardian. He is not capable of making decisions of any consequence
on his own.
[25]
The list of injuries and medical interventions Mr. Sangra sustained and
required as a result of the collision is lengthy and well-described in the
medical reports. I have already mentioned some of them and I provide a more
complete description and further details in the following discussion.
Traumatic Brain Injury
[26]
Mr. Sangra suffered a mild complicated traumatic brain injury (TBI),
and associated loss of consciousness, with initial symptoms akin to a moderate
to severe brain injury. Objective evidence of the TBI is found on imaging of
his brain, which shows left subdural hematoma, subarachnoid hemorrhage
involving the bilateral temporal lobes, internal brain hemorrhages or bleeding,
and multiple skull fractures. Mr. Sangras resulting symptoms are akin to
at least a moderate brain injury and include significant and permanent deficits
in attention and memory, concentration, processing speed, executive function
(with initiation, motivation, planning and execution), impulsivity,
communication issues (verbal and written), reduced mood, social isolation, depression,
shorter temper, reduced patience, headaches, fatigue, dizziness, reduced
balance, and decreased motivation. Mr. Sangra also suffers from permanent and
significantly reduced comprehension, as well as permanent hearing loss. His
ability to read is significantly impaired.
[27]
The medical evidence establishes that Mr. Sangras brain injury is a complicated
mild brain injury with presenting symptoms of a moderate to severe brain
injury.
[28]
According to physiatrist Dr. Lisa Caillier:
Given the imaging findings as well as his prolonged hospital
stay and length of post-traumatic amnesia, although this is complicated by the
delirium, his brain injury is more consistent with a moderate to severe brain
injury.
In my opinion, Mr. Sangras
difficulty with attention, concentration, memory, and executive functioning
which includes judgment, insight, planning, reasoning, as well as emotional and
behavioral difficulties in the form of decreased interpersonal skills,
decreased goal oriented activity, impulsivity, irritability, anger, and
depression, as well as physiological symptoms in the form of fatigue,
dizziness, reduced hearing, and dysphagia are secondary to the traumatic brain
injury of February 23, 2014 as a result of the pedestrian-struck motor vehicle
accident.
[29]
Neuropsychologist, Dr. Nicholas Bogod, explained in his report that:
On balance, initial indicators
would be consistent with a brain injury in the complicated mild range (which
have been demonstrated to have outcomes more consistent with moderate brain
injury) and perhaps of greater severity depending on how much one relies on his
protracted post-traumatic amnesia as an indicator of severity.
[30]
Neurologist Dr. Andrew Woolfenden also supports a diagnosis of
complicated mild-traumatic brain injury with Mr. Sangras symptoms found in the
moderate to severe range.
Abdominal Injuries
[31]
Mr. Sangra suffered a life threatening trauma injury to his liver and
spleen when his liver was torn off major blood vessels. As a result, he suffered
profound bleeding and significant blood loss (and anemia). Immediate surgical
intervention was required to save his life. The mortality rate of this injury
is 85%.
[32]
According to Dr. Granger, this injury caused Mr. Sangra to become
acutely hypotensive such that his low blood pressure resulted in a cascade
of systemic problems including decreased levels of consciousness, an increased
heart rate and corresponding increased work on his heart, and massive fluid
shifts in all tissues including his lungs, which made breathing more difficult.
Part of Mr. Sangras liver was removed. His spleen was removed altogether,
leaving him susceptible to the risk of overwhelming host splenectomy
infections that can be life threating. He is also at risk of a small bowel
obstruction secondary to adhesions or scar tissue from the time of surgery, the
consequences of which can be fatal.
[33]
Due to the severity of his abdominal injuries, Mr. Sangras abdomen was
left open after surgery for some days to facilitate recovery and from there he
was fed through a feeding tube during his stay at Royal Columbian.
[34]
Further surgeries were also required on February 23 and 27, 2014 to
treat injuries he suffered in the collision. Recent significant hernia surgery
(caused by the collision) required 22 staples; it will impact many of his
physical activities and reduce his flexibility, including walking. There is
also a significant risk of recurrence of the hernia, which would require
further surgical procedures.
[35]
In addition to his recent hernia surgery, further surgery to his
abdominal wall or to repair small bowel obstructions may be required with
attendant risks of infection, blood loss, injury to other areas of his body,
and mortality.
Delirium
[36]
Mr. Sangra suffered significant ongoing delirium for approximately five
weeks. It was caused by the TBI and contributed to by the medication he
received in the hospital.
Induced Coma
[37]
Mr. Sangra was placed on a ventilator and was placed in an induced coma for
10 days to facilitate recovery. He also suffered ventilator acquired pneumonia
requiring treatment with antibiotics.
Intubation
[38]
A G (feeding) tube was inserted and remained in place until Mr. Sangra
was released from Royal Columbian to Mt. St. Josephs Hospital on April 2,
2014. He was limited to a liquid diet while the tube remained in place.
[39]
A tracheostomy secondary to his prolonged intubation was carried out at
Royal Columbian.
[40]
He has difficulty swallowing that has required him to use nutritional
supplements (such as Boost) from time to time, and if his health worsens, he
is likely to have to increase his use of it.
Fractures
[41]
He suffered an unstable cervical spine fracture requiring fusion at C6/7
with plate and screws.
[42]
Mr. Sangra also suffered facial and left pelvis fractures resulting in
permanent loss of range of motion in his hip.
[43]
In addition, he suffered multiple displaced rib fractures, which along
with the feeding tube, puts Mr. Sangra at risk for chronic chest wall pain.
Hearing Loss
[44]
He now suffers from tinnitus, hyperacusis (noise sensitivity), and
decreased hearing (caused by low tone frequency loss). The tinnitus manifests
itself with buzzing in either or both ears for a duration of less than a minute
and occurs several times per day. He also suffers from hearing asymmetry and dizziness
and balance problems that put him at risk of falling. Dr. Longridge recommended
that Mr. Sangra avoids activities which put him at hazard if he has an episode
which would cause him to fall. For example, Mr. Sangra is to avoid engaging in
activities that have him looking down, stooping and repetitive looking side to
side because they can be associated with onset of dizziness.
Speech Impairment
[45]
Mr. Sangra has difficulty communicating due to the TBI and his hearing
loss. He is unable to interact in group settings. He is able to interact in
one-on-one settings, but only up to 20 minutes, and more often, only for 10
minutes. Thereafter, he gets frustrated and often suffers a headache.
Shoulder Injury
[46]
Mr. Sangra suffered a full thickness tear of the right rotator cuff that
cannot be surgically repaired. He experiences right shoulder impingement
syndrome with limitations in overhead and repetitive use activities.
Soft Tissue Injuries
[47]
He continues to suffer from a soft tissue musculoligamentous injury
involving the right shoulder with aggravation of pre-existing degenerative
changes and pain involving the acromioclavicular joint.
[48]
He also suffers swelling in his hands and knees, likely the result of
soft tissue injuries.
Depression
[49]
Mr. Sangra suffers from depression with some post-traumatic stress disorder
symptoms and chronic pain. At times his depression is severe. His symptoms
manifest in decreased mood, emotional upset, anxiety, frustration,
irritability, and ongoing fatigue.
[50]
He also suffers from frequent headaches that are at times caused by his
frustration, inability to concentrate, difficulty communicating, and chronic
pain.
Lacerations
[51]
He suffered numerous (and some significant) lacerations and contusions,
with one laceration (thigh wound) and one contusion (lung) requiring surgery (leaving
surgical scarring).
4. Mr. Sangras Life Prior to the Collision
[52]
I agree with the submissions
of Mr. Sangras counsel that the impact of the collision on Mr. Sangra has been
significant and life-altering. Prior to the collision, he led a very active
life. He worked as a heavy duty mechanic for the forestry giant, MacMillan
Bloedel (MB) until he retired in 1992. He was a hard and meticulous worker
who did not shirk the tough repair jobs to heavy machinery located in the bush.
[53]
Mr. Sangra was
born in Kelowna on November 3, 1930, and educated in this province and in India
(in English). He speaks several languages: English, Punjabi, Farsi, Hindi, and
Urdhu. He completed a two-year college program where he was taught English and
economics. He has received his trade certificates in California (heavy machinery)
and from the British Columbia Institute of Technology (heavy machinery
mechanics). By the time he retired from MB in Port Alberni in 1992 at age 62,
Mr. Sangra had worked as a heavy duty mechanic for approximately 33 years. He
retired when MB offered him a buy-out package because his wrists were starting
to hurt. By all accounts, he was an honest, careful, organized, and tidy worker
who was always keen to get the job done, fixing trucks and logging graders as
soon as possible.
[54]
While working for
MB, and after his first wife was institutionalized at Riverview Hospital due to
mental illness, Mr. Sangra raised his two daughters. In addition to working at
a very physically demanding job that often took him into the bush, Mr. Sangra
looked after all of the cooking, cleaning, and laundry while raising them. He
was a devoted father.
[55]
Mr. Sangra was equally
busy in his retirement. He remarried and has remained happily married to Simerjit,
whom his daughters adore, for over 33 years. Simerjit Sangra is currently 68 years
old. After they were married, Ms. Sangra helped her husband with household
tasks including laundry and cooking. She and Mr. Sangra had a son together
Roger who was born in 1987. Mr. Sangra coached Rogers soccer team for many
years. Roger completed university and is now attending law school in the
United Kingdom.
[56]
After his retirement and while he lived in Port Alberni, Mr. Sangra also held the position of
vice-president of the society that operated the Sikh temple. His job duties had
him managing a four-plex building owned by the Society, which included carrying
out repairs to the building (including plumbing) as necessary. As a result of
his training and work experience, Mr. Sangra was handy with tools and owns his
own set. He helped his friend who lived in Port Alberni build his shop in 1992.
Prior to the collision, he could take mechanical things apart and put them back
together.
[57]
Before the
collision, and during his retirement, both in Port Alberni and in Vancouver, Mr.
Sangra was highly motivated and worked out at the gym and swam at a local pool for
at least two hours at a time, and often longer (three to four hours). He
enjoyed grocery shopping and did most of it. He
has always been conscientious about his health. He does not smoke and drinks
only occasionally.
[58]
He also did the majority
of the housekeeping and cleaning (including bathrooms), vacuuming, laundry,
ironing (clothes, towels, and sheets), repairs and maintenance needed at the
house (of all types, including plumbing), banking, and cooking while his wife
worked (she works as a cook at a care facility in Tsawwassen). He liked to have
a very clean house. He was described by his daughter as a neat freak, almost
OCD in his approach to maintaining a clean and organized home. He
enjoyed taking care of his home and looking after Ms. Sangra.
[59]
I agree with his counsels submission that Mr. Sangra carried out
his work at a level that exceeds most people decades younger. His friends
from Port Alberni visited him regularly. He was, as one doctor put it, in very
good shape, active and dynamic right up until the collision.
[60]
Mr. and Mrs.
Sangra moved to Vancouver approximately eight years ago. They purchased a two-storey
home in Vancouver. The kitchen, bathroom, and living and dining rooms are on
the main floor. The master bedroom with an ensuite bathroom is located on the
second floor.
[61]
I do not find any
merit to the defence submission that some discrepancies between Roger Sangra,
Ms. Sangra, and Mr. Sangra, in describing the scope and extent of Mr. Sangras
laundry and ironing duties prior to the collision reflects adversely on their
credibility, for the following reasons. First, it was apparent to me that Mr.
Sangra still suffers from significant memory problems so that his account of
his pre-collision activities is affected. Second, I am satisfied that Roger
Sangra gave his evidence from his understanding of what occurred in his
parents home prior to the collision, garnered from his vantage point as a
university student living at home. I found that he was candid in trying to
describe what he observed. Third, Ms. Sangra is clearly suffering from a great
deal of emotional and physical strain. I found that she was trying to do her
best to provide a candid account. Fourth, the evidence of Ms. Sangra and Roger
Sangra was notable for its understatement. Finally, the discrepancies were
extremely minor and centered mainly on whether Mr. Sangra washed and
ironed his wifes work uniform and how many meals he cooked. From their
accounts, and those of Mr. Sangras daughter and his close personal friend of
many years, I was able to obtain an accurate picture of his pre-collision
lifestyle. I found all of the witnesses who testified on his behalf, including
the medical experts, to be candid, forthright, and highly credible.
[62]
To say that Mr.
Sangra embraced life is an understatement. He was described by his family and
his friend, Mr. Rai, as someone who appeared to be, and acted as if he was,
twenty years younger. He loved social events, was engaged with his adult children
and his (mostly younger) friends. He regularly tended to house and yard
maintenance and repairs, and cleaned the windows. He loved to drive, especially
his classic 1973 Buick Custom LeSabre (that he purchased new and maintained
both mechanically and physically, cleaning it weekly), and he looked after the
banking and other financial matters, including the bills. He loved food, cooking
different meals, following politics and sports, and reading the newspaper (Vancouver
Sun) and novels. Mr. Sangra loved engaging in conversation. He kept up to date
with and loved to discuss and debate world and local politics and sports with
his family and friends. He had an active mind and was able to cite news events,
the latest political events, and sports scores.
[63]
The mood in the
Sangra household was happy and upbeat prior to the collision. He was a happy
person with a great sense of humour. His family and friends liked to be in his
company. Mr. Sangra had supper ready and waiting for his wife when she came
home after 6:30 p.m. from her afternoon shift. He had a drink in hand and was
enjoying himself. Mr. Sangra often sang to his wife in Punjabi when she walked
through the door.
[64]
Prior to the collision,
Mr. Sangra had high levels of energy and no difficulties sleeping. He did not
have any problems with his vision, hearing, balance, or coordination. He did
not suffer from headaches. He had taken a computer course and knew how to send
and receive emails.
[65]
His pre-collision medical
problems of note were: (a) arthritis in one of his wrists sufficient to cause
him to accept a buy-out package from MB in 1992; (b) osteoarthritis in both
hands; (c) left knee replacement in 2012 (with problems in his right knee that
caused Mr. Sangra to consider surgery for his right knee as well); (d) upper
back pain and degenerative changes in his thoracic spine; (e) a cervical spine
fusion 25-30 years ago; (f) hypertension; (g) gout; and (h) hearing loss in the
higher tonal range (common to older people) that did not require him to wear hearing
aids. Mr. Sangra found that the hot tub at the gym helped to soothe the aches
in his knees, back, and shoulders. According to the medical evidence, it is
likely that changes to Mr. Sangras lumbar spine pre-existed the collision.
[66]
Once Mr. Sangra retired
from MB, however, none of these problems interfered with his life and his
physical and cognitive functions. I am satisfied that at the time of the
collision, Mr. Sangra enjoyed excellent physical and cognitive function and
mood, at a level well beyond what is typical for his age. I find Dr. Cailliers
evidence that absent the collision, Mr. Sangra would have likely carried on
with his pre-collision activities and function as he continued to age into his
90s, to be appropriate given the facts of this case. There is no evidence to
support a finding that Mr. Sangra suffered from cognitive decline prior to the
collision or that he would suffer from it if the collision had not occurred.
Nor is there any evidence to suggest that Mr. Sangras pre-collision medical
problems would have interfered with his active lifestyle.
5. The Impact of the Collision on Mr. Sangras
Life
[67]
By all accounts
(from lay and medical witnesses) and indeed from my own observations of him
while he was testifying, Mr. Sangra has battled, with as much determined will
as he can muster, to regain his health. The collision has had a significant and
most adverse effect on his life. I was able to see glimpses of his humour and
the person that he used to be. In spite of his own extraordinary efforts and
those of his wife and son to help him recover, Mr. Sangra has lost his vitality,
his love of life, and much of his physical mobility. He is depressed and at
times has questioned his resolve to live. Physically, he presents as very old, fragile,
and lacking in flexibility; he is stooped with sloped shoulders. The medical
doctors have opined that Mr. Sangra is no longer capable of independent living
as a result of the injuries he sustained in the collision.
[68]
Mr. Sangra can no
longer carry out most of his pre-collision activities. His mobility is limited.
He cannot drive or maintain his house and the Buick. His license was cancelled
by the Superintendent of Motor Vehicles following the collision.
[69]
Mr. Sangra now walks
with a cane and needs professional assistance to get him to, and help him with,
rehabilitation therapy at the gym and pool. His time at the pool is limited
because he is limited to two hours per session with the rehabilitation
assistant (RA). Those two hours are inclusive of the RAs time of arrival and
Mr. Sangras return, so his actual time at the gym and pool is reduced from
to approximately an hour. Mr. Sangra would like to have more time, an hour more
he said, to spend at the pool and at the gym because he finds that it helps
him. His medical doctors recommend ongoing active (as opposed to passive)
modalities (including physiotherapy and exercise).
[70]
He finds it
difficult if not impossible to carry things such as groceries because he needs
the cane in one hand and the other hand free for balance. For good reason, he
will not go outside if it is raining, when the ground is wet or slippery, for
fear of falling. The doctors evidence establishes that a fall would likely
result in a blow to the head or other serious injuries, all of which could be
life threatening. He can occasionally perform light housekeeping tasks that do
not involve repetitive use of his right arm, overhead arms use, or weight bearing
through his right arm or kneeling.
[71]
Mr. Sangras
ability to read has also been impacted. He reads newspaper headlines, and occasionally
an article in the paper if the topic is of interest to him. He is in constant
pain and discomfort. He gets headaches and tires easily. He suffers from low
tone hearing loss as a result of the collision which, along with the TBI, causes
dizziness when he lies down and prevents him from readily following
conversations. He gets frustrated as a result. He must now wear hearing aids,
which he finds to be uncomfortable because they aggravate his tinnitus. He is
not able to dress and groom himself without pain.
[72]
Mr. Sangra has
difficulty swallowing because of the injuries he sustained in the collision. He
has to be careful to drink liquid in small sips and eat food in small bites.
Ms. Sangra needs to remind him to do so from time to time because he forgets.
[73]
Ms. Sangra also
finds her husband less pleasant to live with because he can be curt and
dismissive to her when he is frustrated or depressed. When he gets frustrated,
he can also become angry.
[74]
Mr. Sangra has had
continued difficulties with speaking. He worked with a speech pathologist for
approximately six months and found it helpful. He stopped treatments, but not
permanently, because he found it too much to cope with given all of the other
medical appointments and therapy sessions required of him. I am satisfied from
observing Mr. Sangra testify that he will continue to take the same approach to
his health as he did pre-collision, and that he will readily participate in
speech therapy now that his symptoms have improved. I reject the defence
submission that his past decision to stop treatment dictates that the
recommendation of his speech pathologist, for ongoing treatment that will
continue to bring about improvement for him, should not be accepted.
[75]
Mr. Sangras need for ongoing speech therapy is supported by the
unchallenged opinion evidence of Mr. Sangras speech pathologist, Ms. MacCallum.
She found that Mr. Sangras brain injury has led to impaired executive
function, language impairment (including generation of ideas, planning and organizing
verbal output, and engaging in verbal reasoning), and issues swallowing, all of
which are exacerbated by his hearing impairment.
[76]
In her relatively
recent medical-legal report, dated July 9, 2015, Ms. MacCallum wrote:
Mr. Sangras assessment revealed significant language
difficulties related to brain injury. Impaired executive function was reflected
in his spoken and written language: his abilities to generate ideas, plan and
organize verbal output, and engage in verbal reasoning were impaired. His
hearing impairment exacerbated his difficulties with listening to and
processing verbal information and with retaining what he heard. Mr. Sangra
showed little insight into his verbal deficiencies and did not effectively
monitor his own output.
During the past sixteen months, Mr. Sangras abilities to
understand and retain what he hears, and to express himself in a coherent way,
have improved. Over the next years, continued modest recovery may be expected.
Therapy may increase Mr. Sangras awareness and understanding of his
impairments and provide him with some strategies for correcting some
behaviours. However, because of the current severity of Mr. Sangras higher
level language impairment, it is expected that he will have permanent and
on-going impairments in his spoken and written language.
Both Mr. and Mrs. Sangra referred to Mr. Sangras fatigue.
Treatment may add to any fatigue he may be experiencing during times when he
has many scheduled appointments. Mr. Sangra will benefit most from speech
and language therapy services that are available as needed, lifelong. The
speech pathologist should provide training and education to his family, other
therapists, and care workers regarding his therapy goals and strategies. His care
workers will then be able to cue Mr. Sangra to use his strategies during
teachable moments throughout the day. This will maximize his tolerance and
provide continued practice and reinforcement of strategy use.
[Emphasis
added]
[77]
Ms. MacCallum recommended 50 hours of therapy services for the first
year, to provide four months of direct treatment for Mr. Sangra, followed by
further treatments and consultation with his other health care providers and
his family. She also recommended that Mr. Sangra receive 20 hours per year of
speech therapy thereafter for the remainder of his life. She identified the
costs of speech language pathology services to be $130 per hour, with travel
costs at $65 per hour and $.50 per kilometer. I accept her recommendations as
reasonable and medically appropriate in the circumstances of this case.
[78]
Accordingly, I find that Mr.
Sangra requires ongoing speech therapy as a result of the injuries he sustained
in the collision. Speech therapy treatment has brought about some improvement.
Without it, Ms. MacCallum testified, Mr. Sangra is at risk of further social
isolation. I am satisfied that it was quite reasonable for Mr. Sangra, who
the defence concedes suffered serious injuries to nearly every part of his
body, to have found the multitude of treatments and appointments overwhelming.
[79]
I also reject the defence submission that speech therapy should be
denied to Mr. Sangra because his speech therapist agreed with the general
proposition that people in their 80s experience some decline in language
skills. According to Ms. MacCallum:
His communication impairments are consistent with the
language deficits typically seen with a diagnosis of brain injury. While normal
aging will cause some language skills to decline over a lengthy period of time,
the degree and the pattern of Mr. Sangras impairment, along with the
timing, are not at all consistent with normal aging. The new conductive
component to his hearing loss, added to a pre-existing hearing loss, has
suddenly changed his ability to hear and that has affected his comprehension of
spoken language. However, lack of insight and memory problems have prevented
him from adjusting to the new loss as successfully as would have been expected
prior to the brain injury. Mr. Sangras new higher level language deficits
reportedly are similar in both English and Punjabi, as would be expected of a
bilingual speaker.
[Emphasis
added]
[80]
I will also add
that there is no evidence in this case to establish, let alone suggest, that
Mr. Sangras speech function would have declined, or was at risk of declining,
as he continued to age. To the contrary, the evidence establishes that he was
always at the center of discussions, debates, and social interactions with his
friends concerning many topics. I am satisfied that he would have continued to
enjoy his love of social interaction and dialogue with his family and friends
as he grew older.
[81]
I also do not
accept the defence submission that Mr. Sangra presented at trial as someone who
was able to hear well and converse easily. In observing his interaction when
questioned by his and defence counsel, I was satisfied that he essentially understands
basic simple questions, although not always. There were times that the
questions had to be repeated so that he could understand them (and at other
times, because he had trouble hearing). I reject the defence submission that
Mr. Sangra is more than capable of conversing and interacting with any new
people in his life because it is not founded on the evidence.
[82]
Mr. Sangra is no
longer able to cook. When his wife is at work, Mr. Sangra is able to make
himself lunch, but unlike the more elaborate meals he made prior to the
collision, he is now only able to make himself a simple sandwich (described as
putting a piece of meat between two slices of bread). Otherwise, Ms. Sangra
makes all of his other meals. He can make a cup of tea but there are times (as
recently as a month before the trial began) that he has forgotten to turn the
stove off. When she is at work, he spends much of his day alone, sitting, with
nothing to do; now, with the change of season and loss of daylight hours, he often
sits alone in the dark.
[83]
Often, Mr. Sangra
does not realize it when his wife comes home. She has to call out to him. With
the exception of limited housekeeping services, Ms. Sangra now does all of the
cooking, cleaning, and laundry after a full day of work on her feet, which is
taxing on her health (one foot now swells due to tendonitis) and mental
well-being. When she returns from her shifts, whether at 2 oclock or 6 oclock
p.m., she has no time to take off her uniform. She launches into cooking dinner
and clean up, and then when that work is done around 8:30 p.m., she has to tend
to Mr. Sangras needs. Mr. Sangra no longer sings to her. He no longer takes
care of her needs as he used to do.
[84]
At present, a
housekeeper comes to the house for two hours per week to help clean the kitchen
and floors, but she does not do the laundry and ironing and sometimes is not able
to do the vacuuming. Ms. Sangra picks up what the housekeeper cannot do and
finds that she is vacuuming often. Ms. Sangra also cleans the bathrooms.
[85]
No one tends to
the yard work or house maintenance now. Ms. Sangra is too busy working, buying
groceries, and tending to the housekeeping, finances, and her husbands needs.
[86]
In watching Ms.
Sangra testify, it was readily apparent that she is highly stressed and suffers
greatly from the anxiety and physical effort of working and caring for her
husband. I found her testimony to be credible and supported by the other
witnesses. She was described by Roger as a tough, strong willed woman, with a
strong work ethic. Now, after dinner and after she finishes attending to her
husband, Ms. Sangra will turn off the television and just sits and cries.
[87]
Mr. Sangra
testified that he is bored because there is usually nothing he can do but sit
alone waiting for his wife to return home from work. He is no longer
independent. He cannot buy groceries on his own. He cannot do the laundry or
housekeeping, nor can he maintain the house and the yard. He lacks the capacity
to do small repairs. He is not able to change the light bulbs. Apart from
turning the power on and off to his computer, he has forgotten how to use it.
He no longer is able to use email. He has little interest in outings. He finds
it difficult to attend his local temple because it is very painful to sit on
the floor. He has, at times, resisted his wifes efforts to encourage him to
go, and even when he has gone with her, Mr. Sangra has sometimes sat in
the car while she attends services inside. He tries to walk to the bank to do
the banking but only with his wifes instructions in hand on what to do. Even
then, he makes errors. He is unable to set the alarm to the house, which he
used to do before the collision. He has tried and has, unfortunately, activated
a false alarm.
[88]
His friends and
children continue to come to visit, but stay for less time because it is too
difficult for Mr. Sangra to interact with more than one person. Otherwise, in
any setting of more than one person, it is as if, one witness said, Mr. Sangra
is not there, meaning that his participation is non-existent. Mr. Sangra is
able to carry on one-on-one conversations, but for a limited period of up to 20
minutes. After that, he gets headaches and becomes frustrated. He suffers from
significant fatigue. I heard credible evidence from various family and friends
that Mr. Sangras humour is now largely gone and is replaced with profound
sadness.
[89]
Mr. Sangra is now
often irritable and although not meaning to, finds himself being short and rude
when speaking with his wife.
[90]
His family and
friends testified that prior to the collision, Mr. Sangra looked much younger
than his actual age (looked and acted like a man in his 60s rather than his 80s);
he was a nice, physically and mentally fit, cool, happy-go-lucky, very
happy guy with a great personality, strong will, and a sense of humour, who
liked to associate with people 20 years younger than him. Before and after
photographs confirm the dramatic change in his appearance, from a vibrant
looking, physically fit octogenarian with black hair, to a grim-faced, stooped-shouldered,
grey haired man with a distant look.
[91]
For reasons that I
will explain in the cost of future care section, Mr. Sangras life expectancy
has been reduced by one year as a result of the injuries he sustained in the
collision.
[92]
The submissions made on behalf of Ms. Sine and ICBC quite rightly
point out that Mr. Sangra has improved in his functional and cognitive
abilities. He is not completely immobile or wheel chair bound. I found overall,
however, that the defence submissions mischaracterized Mr. Sangras recovery
and current condition because they lacked appropriate factual context. In the
following sub-paragraphs, I provide some examples by setting out the
submissions followed by the facts:
(a) Mr.
Sangra is able to walk up and down the 15 to 16 sets of stairs in his house,
but carefully, with his cane in one hand and by holding the railing in the
other.
(b) Mr.
Sangra is able to walk to the store and the bank a few to five blocks away, but
only in good weather, when the streets are dry, and when he is physically able
(about once a week). He can go to the bank only so long as he has instructions
from his wife about the banking transactions that he must carry out.
(c) Mr.
Sangra gets in and out of bed without assistance, but he must take special care
when lying down and getting up to minimize his dizziness and to avoid falling.
(d) Mr.
Sangra is now able to tend to his own toileting needs without assistance, but
he is in significant pain and discomfort.
(e) Mr.
Sangra has improved memory, but only when measured against the baseline of
delirium and amnesia once he awoke from his coma.
(f) Mr.
Sangra may enjoy improved cognitive and physical function, but they are
unlikely to occur spontaneously given his age, and if they are to occur at all
(which is unlikely according to the medical evidence), it will, I find, be modest
at best and only occur with rehabilitation assistance from medical
professionals.
(g) Mr.
Sangra is able to read the newspaper, but only the headlines and articles that
may be of interest, and even then, he has to re-read the headlines and article
to make sense of them.
[93]
The defence submission that Mr. Sangra is able to participate in
physiotherapy and attend the pool and gym overlooks that he only does so with
assistance from qualified, licensed, health care professionals. The defence
submission that Mr. Sangra is able to interact socially with his family and
friends is, with respect, overly-simplistic and ignores the evidence that his
interaction is significantly limited both in quality and duration, and that it bears
no resemblance to his pre-collision activities and function. In terms of his
social interaction, Mr. Sangra is withdrawn in groups of more than one, and in
one-on-one conversations, his participation is limited, the discussions are
quite basic, and he is unable to last more than 20 minutes before he becomes
frustrated and often suffers a headache. The defence submissions concerning his
mobility also overlook his ongoing pain and discomfort and the fact that some
of his injuries (such as his shoulder injury) are incapable of surgical repair,
and that he may well have to undergo future surgery for the injuries he
sustained in the collision.
[94]
I agree with the defence submission that Mr. Sangras injuries
are not catastrophic but only in the limited sense that he is not a
quadriplegic or paraplegic, in a vegetative state, or requires around the clock
care. Otherwise, his injuries are, on the whole, close to catastrophic.
[95]
I agree with the defence submission that Mr. Sangra has made significant
improvement since the collision, but only when looked at from the vantage point
of his condition in Royal Columbian where he was near death and not expected to
survive the collision, where he suffered significant injuries to nearly every
aspect of his body, and then underwent significant multiple surgeries and lengthy
rehabilitation. I am satisfied that to Mr. Sangra, the injuries and the
condition in which he presently finds himself are devastating given his
exceptional pre-collision health and his focus on maintaining his health and
physical and emotional fitness as he grew older.
[96]
I found Dr. Bogods summary of the effect of Mr. Sangras TBI to
be consistent with the evidence of the other witnesses, including lay witnesses:
Cognitively, Mr. Sangra reported
that a lot has changed in his thinking abilities since the accident. He is
mentally slower. He frequently forgets conversations he has had with his wife,
will misplace or forget his wallet, and forgets names and addresses very
quickly. He reads the newspaper but forgets the details. He felt his attention
and concentration were ok, but added that he will forget things. He finds it
hard to initiate activities and to motivate himself and was unsure why as he
was very motivated before. He has difficulty finding the right word to express
himself. He used to read books before the accident but now finds he is not
interested. His wife added that he is not very interactive any more. He falls
asleep on the couch a lot and doesnt make conversation. He felt he could
navigate adequately but does not go anywhere alone. He and his wife do finances
together now and she needs to cue him and he needs to write down what he needs
to pay but sometime makes mistakes despite this he handled the finances
independently previously. He cannot work on a computer since the accident. He
has not driven a vehicle since the accident. He uses a dosette to aid him in
recalling to take his medications.
[97]
Fatigue compounds Mr. Sangras symptoms caused by his TBI and resulting
cognitive deficits. According to Dr. Bogod:
Mr. Sangra reported significant fatigue since the accident,
noting that this continues to be an issue currently and that he tires quickly.
A questionnaire related to fatigue suggested significant impact on his
day-to-day functioning and quality of life.
In the context of his noted cognitive deficits in terms of
sustained and divided attention his cognitive fatigue is likely to reflect in
part the increased expenditure of mental effort required to maintain his
attention to process information when performing cognitive tasks, his other
deficits notwithstanding. In addition, with increasing fatigue can come further
decrement in cognitive performance such that each exacerbates the other.
In my opinion there is no
documentation to suggest fatigue prior to the accident and it is therefore
probable that his fatigue is secondary to the accident of February 23, 2014 and
likely in part secondary to the noted cognitive sequelae. His psychological
distress might also be somewhat contributory. His physical injuries/chronic
pain may also be contributory and I defer to other experts in this regard.
[98]
Dr. Caillier
expressed a similar opinion:
In my opinion, his fatigue is
multifactorial and secondary to the traumatic brain injury as well as is also
likely related to mood and pain.
[99]
In his
medical-legal report, Mr. Sangras treating orthopedic surgeon, Dr. Peter
Zarkadas, opined that Mr. Sangra was in a commendable state of physical
fitness at the time the collision occurred. It was, he said, [A]mazing that
[Mr. Sangra] actually survived the collision:
Prior to the February 23, 2014 MVA, Mr. Sangra was
independent in activities of home cleaning and maintenance. He was responsible
for all home activities including cleaning, repairs, shopping, cooking and
yardwork. An occupational therapy report of October 16, 2014 stated that Mr.
Sangra was receiving home care assistance 5 days a week for help with household
tasks. In the absence of outside assistance, activities of home cleaning and
maintenance including cooking and grocery shopping have been relegated
primarily to Mr. Sangras wife. His wife works full-time as a cook in a care
home in Tsawassen and has frequently taken time off work to care for her
husband since the February 23, 2014 MVA. At home Mr. Sangra states that he has
the greatest difficulty climbing up and down the stairs to his bedroom on the 2nd
floor. He uses a cane for stability and holds the staircase railing.
Prior to the [collision], Mr.
Sanger attended the gym and swimming pool 5 times per week for 2 hours each
day. He was in a commendable state of physical fitness at the time of the
accident. He enjoyed working on an antique car that he owns. He enjoyed reading
the newspaper and watching the news on television. By October 16, 2014 Mr.
Sanger was swimming 3 times per week accompanied by his physiotherapist. He was
able to ambulate indoors without a walking aid. Outdoors he was able to walk
3-4 blocks with a 4 wheeled walker. Walking performance is limited primarily by
his tolerance for pain in the back of his knees. Mr. Sangras traumatic brain
injuries have resulted in symptoms, which made it difficult for him to enjoy
reading and watching television. He also owns a Buick collectors car. He has
been unable to do the mechanical work on the car. He has also been advised by
his family physician to avoid driving for reasons of safety until his injuries
further resolve.
[100]
In Dr. Cailliers opinion, Mr. Sangra is physically deconditioned:
Mr. Sangra is not engaged in his usual recreational
activities. He is not going to the gym, pool, or sauna as he did prior to the
accident. He has not returned to doing this. He remains quite physically deconditioned.
In my opinion, his inability to
return to his recreational activities is secondary to them motor vehicle accident
of February 23, 2014 and the traumatic brain injury as well as his pain
complaints.
[101]
The prognosis for
Mr. Sangras TBI and resulting cognitive impairments is guarded. Both Drs.
Woolfenden and Bogod opine that any further improvement in Mr. Sangras condition
will be modest at best.
[102] Dr. Woolfenden expressed the following
opinion in his medical-legal report:
There was substantial evidence that Mr. Sangra had
significant post-accident cognitive problems. Although he was initially
significantly sedated and had non-brain injury medical conditions which likely
contributed to his delirium, the clinical/imaging evidence of brain injury
indicated that brain injury likely significantly contributed to his post-accident
delirium and subsequent cognitive problems. He had several long-term cognitive
problems including reduced attention, memory, and executive functioning.
Although his cognitive functioning improved over time, he had residual
demonstrable impairments of attention and executive functioning historically
(i.e. difficulty with attentional task such as reading and staying focused on
the task at hand; difficulty with more complicated cognitive behaviors), on
neurologic bedside testing (i.e. reduced attention on digit span,
mistakes/slowness on Trails Tests, and mistakes on reversed months), on
neuropsychological testing (i.e. decreased complex attention and executive
functioning), and on functional testing (i.e. problems on several subtest[s] of
the independent living scale assessment). These deficits likely explained his
subjective complaints of poor concentration and memory (although his memory testing
on neurologic bedside and neuropsychological testing was within normal limits
but not a surprising complaint since impaired attention often causes subjective
complaints of reduced memory) and difficulties with more complicated day-to-day
cognitive tasks (i.e. banking decisions).
Negative prognostic factors which influence the outcome of
TBI include advanced age (i.e. older patients have a worse prognosis) and
hypotension (i.e. reduced blood pressure). Given that Mr. Sangra was 83 years
of age at the time of the accident and had bouts of documented hypotension on
February 23, 2014, these factors probably negatively affected his TBI outcome.
Mr. Sangra had post-accident emotional problems. There was
irritability, problems with emotional control, and decrease[d] mood. There was
no way to disentangle the impact of brain injury on emotional control versus
non-brain injury problems related psychological disturbance resulting from
injuries sustained in the accident. However, the ongoing emotional problems at
the time of my assessment also probably negatively impacted his cognitive
functioning.
Brain recovery following TBI is typically most robust in
the first few months following the injury. Thereafter, some limited spontaneous
improvement occurs up to ~2
years post-injury in adults.
Mr. Sangra had a significant clinical improvement in his
cognitive functioning by the summer of 2014, several months post-accident.
However, at the time of my assessment ~ 10 months post-accident and on
subsequent assessments by Drs. Bogod and Ms. Barrie [sic], Mr. Sangra had
persistent cognitive problems. Since he suffered a structural brain injury
in the accident and had persistent cognitive problems indicative of executive
dysfunction in June 2015, it is likely that he will suffer persistent cognitive
and emotional problems, as a result of the TBI sustained in the accident,
indefinitely. Although he may somewhat further improve, any future improvement
is likely to be modest at best.
[Emphasis
added]
[103]
Dr. Bogod provided
a similar opinion in his report, stating that spontaneous recovery after brain
injury is generally maximal over the first six months to one year, with continued
more modest improvements that can generally be anticipated until approximately
two years post-injury, at which point residual deficits are likely to persist.
[104]
Mr. Sangras
chronic pain and other physical symptoms and fatigue may improve over time if
there is improvement in his cognitive functioning. As I have found, however, full
resolution is not expected.
[105]
Mr. Sangra also continues
to suffer psychological injuries depression, affected mood, anxiety from
the injuries he sustained in the collision. He thinks he cannot do things right
anymore. He works hard at trying not to focus on his boredom but finds himself
badly affected by it. Ongoing medical intervention with a psychologist is
necessary according to Drs. Bogod and Caillier.
[106]
Viva voce testimony from the medical doctors established
that given the time that has elapsed since their reports were written, any
further improvement in Mr. Sangras condition is unlikely.
[107]
Mr. Sangra is also
at increased risk for dementia as a result of the TBI. According to the medical
evidence, Mr. Sangra is, given his age, at a 4 to 5% risk of suffering from
dementia. He is also at risk of suffering from seizures, at a 13% risk of
suffering from a small bowel obstruction, further hernia surgery, risks of
further physical injury (including brain injury) from falling, and risk of
death from further surgeries.
[108]
Since his return
home, Mr. Sangras recovery efforts are being supervised by an occupational
therapist (OT). He receives active physiotherapy regularly (performing
exercises to help with mobility) and assistance from an RA who helps him get to
the pool three times per week. Mr. Sangra also receives counselling and
assistance from a speech language pathologist. In the early stages, he had help
from a homecare nurse five times per week for two hours per day to help him
with housekeeping tasks.
[109] In conclusion, I agree with the
submissions advanced on behalf of Mr. Sangra that the effect of the testimony
of the witnesses, including the lay witnesses, all of whom I found to be
credible, was a description of a now fatigued, frustrated, unhappy man in
continual pain, whose once vibrant and full life has been ruined by the
collision. The following more detailed submission paints an accurate picture of
Mr. Sangra at the present time:
Mr. Sangra, we say, showed himself to be a man who took great
pride in his health, his mind and his ability to contribute meaningfully to
those around him. He is clearly deeply affected by the fact that he is no
longer independent and can no longer make life easier for his wife. Instead, he
has now become a source of added work, stress and worry for his family. There
was not a hint of exaggeration in his evidence about the impact of the
accident. He clearly struggled at times during his testimony requiring
redirection about the time periods being discussed. His ability to understand
questions declined as his testimony went on, despite a late start, breaks, and
the use of a different chair.
[There is a] very different mood
in the house since the accident. It used to be a happy place to visit. Now it
feels like a heavy fog of sadness hangs in the air.
6. Non-Pecuniary Damages
[110]
Damages for pain and suffering non-pecuniary damages are assessed
based on a list of common factors applied to a plaintiffs individual
circumstances. They include: the nature of the injury; severity and duration of
pain and of his disability; emotional suffering; loss or impairment of life;
impairment of physical and mental abilities; loss of or interference with
pre-accident lifestyle; impairment of family, marital, and social relationships;
stoicism; and age: Stapley v. Hejslet, 2006 BCCA 34 at para. 46, citing Giang
v. Clayton, 2005 BCCA 54. The award must be fair and reasonable in the
circumstances of this case: Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Thornton (Next Friend of) v. Prince George School
District No. 57, [1978] 2 S.C.R. 267; Arnold v. Teno (Next Friend of),
[1978] 2 S.C.R. 287.
[111]
Mr. Sangras entitlement to non-pecuniary damages is not, however,
reduced because of his advanced age, nor because he appeared stoic in the
witness stand.
[112]
In Pingitore v. Luk, [1994] B.C.J. No .1866, Mr. Justice Fraser
said at para. 36 that injury to older people can be more profound than an
injury to a younger person:
What must be looked at is the deprivation of the vigour [the
plaintiff] had enjoyed up until the accident and which, on the evidence, I
think he might have expected to enjoy for some long years. Injury to older
people is, from at least one vantage, more profound than injury to the younger.
The Court of Appeal of England, in Frank v. Cox said this:
I take the view myself that when one has a person
in advancing years, in some respects an impairment of movement may perhaps be
more serious than it is with a younger person. It is true, as Mr. Chedlow has
stressed, that he has not got as many years before him through which he has to
live with this discomfort, pain and impairment of movement. But it is
important to bear in mind that as one advances in life ones pleasures and
activities particularly do become more limited, and any substantial impairment
in the limited amount of activity and movement which a person can undertake, in
my view, becomes all the more serious on that account.
[Emphasis
added]
[113] That
approach was cited with approval in the more recent decision of this Court in Etson
v. Loblaw Companies Ltd. (c.o.b. Real Canadian Superstore), 2010 BCSC 1865
at para. 66 and in Fata v. Heinonen, 2010 BCSC 385. In Fata at
para. 88, Madam Justice Griffin said:
The retirement years are special
years for they are at a time in a persons life when he realizes his own
mortality. When someone who has always been physically active loses his
physical function in these years, the enjoyment of retirement can be severely
diminished, with less opportunity to replace these activities with other
interests in life. Further, what may be a small loss of function to a
younger person who is active in many other ways may be a larger loss to an
older person whose activities are already constrained by age. The impact an
injury can have on someone who is elderly was recognized in Giles v. Canada
(Attorney General), [1994] B.C.J. No. 3212 (S.C.), revd on other grounds
(1996), 21 B.C.L.R. (3d) 190 (C.A.).
[Emphasis
added]
[114]
Similar comments have been made about the profound effect of loss to
an otherwise robust elderly plaintiff pre-accident in Davies v. Elston,
2014 BCSC 2435 at paras. 287-291; Wong (Litigation guardian of) v. Towns,
2015 BCSC 1333 at 92, 94, and 95.
[115]
Ms. Sine and ICBC do not take issue with the following characterization
(made in submissions on behalf of Mr. Sangra) of the effect that the injuries
have had on him. It is, I find, a factually accurate summary and an appropriate
submission to the facts of this case:
In Mr. Sangras case, his quality
of life has obviously been severely diminished. He was, by all accounts, still
in the prime of his life, active and engaged at a level that is more consistent
with someone decades younger. He loved looking after his family. He was
independent and rightfully proud of how well he had aged. Throughout his life,
he had lived a healthy life that included good eating, no smoking, lots of
exercise and keeping his mind sharp and engaged. The actions of Mr. Lima have
now destroyed that situation. Mr. Sangra now no longer looks after anyone.
Rather, he is now the one who now needs the care. The change in circumstances
has clearly been devastating for him and have taken away almost all of the joy
in his life. It is those factors that should be determinative of his pain and
suffering award.
[116] I agree
with the submissions of Mr. Sangras counsel, that the awards made in them
should be viewed in the context of the rough upper limit extant at the time. I
have considered this information where it was made available. Of the cases
cited by the parties, I find OConnell (Litigation Guardian of) v. Yung,
2010 BCSC 1764, Izony v. Weidlich, 2006 BCSC 1315, and Clost v.
Relkie, 2012 BCSC 1393 to be particularly instructive for the facts of this
case.
[117] In OConnell,
a 58 year old female plaintiff suffered a traumatic brain injury from a motor
vehicle accident. In addition, she suffered fractures to her cervical spine,
femur, ankle, tibia, fibula, toes, ribs, sternum, and nose, and suffered from a
lacerated spleen and liver contusion. Her primary ongoing difficulty was her
brain injury (found to be serious and significant) that left her unable to
relate to her family and friends, unable to enjoy activities that she used to
enjoy, and unable to plan and organize. Unlike Mr. Sangra, she remained capable
of carrying out most activities of daily living but she required assistance
with cooking and managing the household and outdoor activities. She was also no
longer employable. In addition, unlike Mr. Sangra, Ms. OConnell made a
full, functional, and satisfactory recovery from her physical injuries, and was
left with only residual problems (primarily pain and joint stiffness and some
difficulty with her gait) related to the right femur fracture. Unlike Mr. Sangra,
she did not suffer from any significant pain. She was also found, due to her
limited insight (from the brain injury), to be cheerful and reasonably
content, and without emotional problems, other than some anxiety when her
husband was absent. She was awarded $275,000 for non-pecuniary damages, which
in current dollars amounts to approximately $290,000.
[118] The 55
year old plaintiff in Izony also suffered significant injuries,
including a mild TBI, a fourth lumbar burst fracture, and multiple orthopedic injuries,
in a motor vehicle accident. He was hospitalized for three months, underwent
several surgeries and a tracheotomy, and suffered a significant infection. At
trial, he was found to suffer from memory difficulties, emotional changes, and
impaired cognition. He was able, nonetheless, to carry out research and to
engage in his pre-accident hobbies of wood carving, sketching, and making arrow
heads. He was awarded $275,000 in non-pecuniary damages at a time when the
rough-upper limit was $307,000. In current dollars, the award translates to
$312,000.
[119] The female
plaintiff in Clost was 59 years old at the time of the accident. She
suffered a TBI as well as the following injuries: femur fracture; factures to
both wrists; fractured ribs; left heel fracture; and bleeding in her brain (but
no skull fracture). She was in a coma for approximately one month. Her time in
the hospital and in rehabilitation was similar to the case at bar. Ms. Clost
made a better than can be expected recovery from her brain injury, but was
left with subtle cognitive impairments that prevented her from working as a lab
technician and functioning in all aspects of her pre-accident independent
living. She was able to carry out many activities of independent lifestyle. She
was able to cook, shop, (cold) bathe and dress herself, carry out many but not
all household chores (for some, she required assistance), read books and attend
the local library, manage her finances and attend to her banking, use a
computer and the internet, and drive. She continued to cut hair for her family
and friends. Ms. Closts main physical complaint was ongoing pain in her foot
and ankle. She walked with a limp. Her pain would increase the more she walked.
It was anticipated that she would undergo fusion surgery to her foot to reduce
(but not eliminate) her pain. She suffered a hearing loss in both ears and
fatigued easily. Her brain injury impacted on her ability to enjoy life and to
participate in society. There was a risk that she could develop dementia as a result
of the TBI. The non-pecuniary damage award was $300,000.
[120] Mr.
Sangras counsel submits that an award of $315,000 is appropriate for Mr.
Sangra, especially since his injuries and ongoing effects of his cognitive
impairments from the TBI and his other physical injuries are greater than those
in the aforementioned cases.
[121] The
position advanced on behalf of Ms. Sine and ICBC is that an appropriate range
for the award is $180,000 to $200,000. In my respectful opinion, that amount
does not reflect the extent of the loss suffered by Mr. Sangra. I am also of
the opinion that the factual circumstances present in the cases cited by the
defence Wong; Leon v. Tu, 2012 BCSC 1600; Harrington v.
Sangha, 2011 BCSC 1035; Adamson v. Charity, 2007 BCSC 671; Zollinger
v. Kong, 2003 BCSC 1932 although involving brain injuries of different
degrees, do not reflect the constellation of traumatic injuries suffered by Mr.
Sangras (that brought him close to death) and their sequelae.
[122] The three cases
cited by the defence that come the closest to the facts of this case are Harrington,
Adamson, and Zollinger.
[123] In Harrington,
a 45 year old plaintiff suffered a mild to moderate TBI along with an injury to
the upper trunk of her left brachial plexus. She underwent unsuccessful surgery
and was left with very little movement of her left shoulder. At the time of
trial, she was, like Mr. Sangra, unable to lift her arm above her shoulder. The
TBI affected her cognition (including memory and concentration) and left her
irritable and disinhibited. She was also at risk 4% of developing dementia
from the TBI. The award was $210,000, which the defence acknowledges is
$227,000 in current dollars (where I have indicated current dollars, the
amounts come from the defence submission and are based on the Bank of Canadas
inflation calculator).
[124] In Harrington,
unlike the case at bar, the plaintiff was found to be largely independent and
capable. Unlike Mr. Sangra, she struggled with ongoing symptomatic pre-existing
depression.
[125] In Adamson,
the 42 year old plaintiff, who was a gifted carpenter, suffered a mild TBI as
well as chronic pain syndrome, headaches, and a major depressive disorder. His
pre-existing hearing loss was exacerbated. He suffered daily, debilitating
headaches which arose from his daily neck pain. Prior to the accident, the
plaintiff also co-managed the familys rental properties. He was found to be
competitively unemployable and unable to carry out most of his pre-accident
activities. The plaintiff was awarded $200,000, which is the equivalent of
$227,000 in current dollars.
[126] Unlike the
case at bar, the plaintiff suffered TBI symptoms that fell in the mild
category, did not require surgery, there were no fractures, did not suffer a
near death experience, and did not suffer a reduced life expectancy. At the
time the Adamson case was decided, the rough upper limit was just over
$311,000.
[127] In Zollinger,
the 44 year old plaintiff was a millwright/machinist who sustained a moderate TBI
and other serious injuries in a motor vehicle accident. He underwent emergency
surgical repair of a tear and dissection of his right carotid artery. His
throat and jaw were swollen as was his left arm (for which surgical
intervention was required for compartmental syndrome). He also suffered a
fractured jaw, a fracture to his hyoid bone (in the neck that supports the
tongue), and a fractured bone in his left knee. He also suffered permanent
scarring on his neck from a tracheotomy, lost two teeth in the accident (a
third broke off when his fractured jaw was wired shut), and soft tissue injury
to his foot. Eventually, all of his upper teeth were extracted. The plaintiff
remained unconscious for a number of days following the accident because of the
medication he was given; when he gained consciousness, he was disoriented, and
then when he was discharged from the hospital (after a month), he was
housebound and reliant mainly on a wheelchair for a period of time. He was in a
splint for six to eight weeks. He remains permanently disfigured with facial
jaw asymmetry and suffers from numbness to his chin and lower lip and joint
stiffness. The plaintiff was emotionally distant from his wife and children to
the point that his relationship with his spouse all but disappeared. He
suffered from seizures. In this case, in spite of his injuries, he was able to
return to work, at first part time some six months after the accident, and then
to full time on a graduated basis. The award was $180,000, which in present
dollars is $222,000.
[128] Mr.
Zollinger did not require ongoing rehabilitation assistance as Mr. Sangra does,
nor assistance for daily living. He was also able to drive. The rough upper
limit at the time Zollinger was decided was approximately $60,000 more,
at $282,000: see, Bob v. Bellerose, 2003 BCCA 371 at para. 12.
[129] I have
determined that the amount suggested by Mr. Sangras counsel is fair,
reasonable, and appropriate in the circumstances of this case. It takes into
account the numerous additional serious injuries and surgeries that Mr. Sangra
has suffered (e.g., near death, liver and spleen surgery, and subsequent hernia
surgery), the risk of further surgeries, the loss of life expectancy, and the
effects on Mr. Sangras exemplary pre-collision lifestyle and cognitive and
physical function. I am satisfied that his recovery emanates from his own
commendable motivation in the face of his severe depression and with the
assistance of his wife and son. The defence position fails to recognize the
truly devastating and ongoing adverse effects caused to Mr. Sangra by the
injuries he sustained as a result of the collision. The amount proposed by Mr.
Sangras counsel is not, in my respectful opinion, over-reaching, especially when
comparing it to the current rough upper limit (approximately $356,000) and when
assessing the relationship of the awards made in the defences cases to the
rough upper limits extant at the relevant times. Accordingly, I assess an
appropriate award for non-pecuniary damages in this case to be $315,000.
7. Cost of Future Care
Preliminary Remarks
[130]
Mr. Sangra is entitled to full compensation for those future costs that
can reasonably be expected to be spent to put him in the position he would have
been in if he had not sustained the injuries in the collision. In Andrews at
p. 241, Dickson J. (as he then was) said:
In theory a claim for the cost of
future care is a pecuniary claim for the amount which may reasonably be
expected to be expended in putting the injured party in the position he would
have been in if he had not sustained the injury. Obviously, a plaintiff who has
been gravely and permanently impaired can never be put in the position he would
have been in if the tort had not been committed. To this extent, restitutio
in integrum is not possible. Money is a barren substitute for health and
personal happiness, but to the extent with reason that money can be used to
sustain or improve the mental or physical health of the injured person it may
properly form part of a claim.
[131] While
fair and reasonable compensation is the test for non-pecuniary damage awards,
full compensation is the approach taken for future care awards. The paramount
concern is to ensure there is sufficient money to provide for adequate future
care: Andrews at p. 261; Arnold at p. 320; Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) at para. 182.
[132]
In Andrews, Dickson J. said at p. 246, where a person, such as
Mr. Sangra, was once able to look after himself, and would have continued to
have been able to do so absent the accident, the purpose of the award should be
to provide compensation and not merely provision. His remarks, which I
excerpt below, guide my assessment in this case:
The standard to be applied to
[the plaintiff] is not merely provision but compensation, i.e., what is the
proper compensation for a person who would have been able to care for himself
and live in a home environment if he had not been injured. The answer must
surely be home care. If there were severe mental impairment, or in the case of
an immobile quadriplegic, the results might be different; but where the victim
is mobile and still in full control of his mental facilities, as Andrews is, it
cannot be said that institutionalization in an auxiliary hospital represents
proper compensation for his loss. Justice requires something better.
[133] Determining
appropriate compensation is not, as Morrison J. said in Williams (Guardian
ad litem of) v. Low, 2000 BCSC 345 at para. 25, an exercise in how to save
money nor is it a discussion involving retribution. It is, she said, 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. The primary emphasis
when assessing the award in cases of serious injury, such as the case at bar,
is to determine what is reasonably necessary on the medical evidence to
promote the mental and physical health of the plaintiff: Milina at
para. 172.
[134]
The test in assessing an appropriate award for cost of future care is a
broad one justified by appropriate medical evidence. The costs must be
reasonably necessary: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC
9. In the recent case of McCluskey v. Desilets, 2013 BCSC 2150 Mr.
Justice Steeves said at para. 10:
As above, the broad test for future care is whether it is
justified on a medical basis. The objective is to provide a reasonably high
standard of future care as a normal expectancies measure [citations
omitted]. It is full and adequate care in the sense of, as far as possible,
care that will permit the plaintiff to enjoy a lifestyle like the one he or she
would have enjoyed but for the injury [citations omitted]. It perhaps goes
without saying that pecuniary damages are not intended to provide a windfall to
a plaintiff and compensation must not be determined on the basis of
sympathy.
[Emphasis
added]
[135] Moreover,
minimizing the social burden of the expense is only a factor to be considered
when choosing between acceptable alternatives: Andrews at p. 248.
[136] Future
care cost awards must also take into account contingencies, including negative
ones, such as those that Mr. Sangra would have suffered regardless of the
collision, due to his advancing age: Drogde v. Kozak, 2011 BCSC
1316. The extent to which a cost of future care award should be adjusted for
positive and negative contingencies depends on the specific care needs of the
plaintiff. In some cases, the possibility that a plaintiffs condition may
improve such that his care needs are reduced may be off-set by the prospect
that they may become worse, thereby increasing his care needs: Gilbert v.
Bottle, 2011 BCSC 1389 at paras. 253-254.
[137] Using this
legal framework, I will now assess an appropriate cost of future care award.
What Care is Required?
[138]
Mr. Sangras future care requirements were outlined by occupational
therapist, Tracy Berry. Ms. Berry has significant experience providing
community based rehabilitation services for people who have been injured in accidents
(including motor vehicle and work accidents), and has a particular speciality
in providing occupational therapy services for people suffering from brain
injuries. Her rehabilitation plan and recommendations were the result of her
in-depth and comprehensive review of the medical evidence, her own examination
of Mr. Sangra, her interview with his wife, and her inspection of Mr. and Ms.
Sangras home. Ms. Berry has appropriately considered the evidence
establishing that Mr. Sangra requires supervision and assistance in
multiple fields, including assistance for his health/safety and social
adjustment, and to manage money, his home, and transportation. In addition, Dr.
Woolfenden and others have recommended that provision be made in case Mr.
Sangra develops seizures or Alzheimers Disease as a result of the injuries
he sustained.
[139]
In her testimony, Ms. Berry provided a slightly revised (downward)
estimate of annual care costs to range between $21,201.45 to $37,758.95, and
annual care costs to range between $46,004.46 to $56,763.18, excluding
contingent items, as follows:
Item | One-time | Annual |
Medical | $0.00 | $0.00 |
Therapies | $20,642.50 | $34,980.00 |
Medications and Supplies | $558,95 | $2,788.54 |
Home Support Services | $0.00 | $7,994.00 |
Transportation | $0.00 | $241.92 |
Total | $21,201.45 | $46,004.46 |
[140]
Her report and viva voce also provide a detailed line-item
description of the services and costs associated with the service providers
from each discipline (e.g. occupational therapist, psychologist,
physiotherapist, rehabilitation assistant, speech therapist, home support,
gardeners, and legal), medications and supplies, and taxi fares.
[141] Ms. Berry
also provided additional contingent recommendations in the event Mr. Sangra
requires further hospitalization (e.g., for infection or abdominal surgery),
suffers from dementia or seizures, or requires greater home care and alteration
of his home in the event that Ms. Sangra is no longer able to care for him or
passes before him. The annual cost of seizure medication (anti-epileptic)
ranges between $700 and $1,700, depending on the prescription. If Mr. Sangra
develops dementia, then the present annual cost of 24-hour home care ranges
between $91,250 and $97,637.50. The current annual costs to place Mr. Sangra in
an assisted facility that houses dementia patients range between $17,400 and
$47,400.
[142] I have
summarized Ms. Berrys recommendations, including contingent recommendations,
and estimates of current costs, in the following discussion. I am satisfied
that Ms. Berrys recommendations track the advice of the medical doctors whose
reports are in evidence.
Attendance in a Chronic Pain Program
[143] The cost
of the chronic pain clinic is not being sought from Ms. Sine and ICBC because
Mr. Sangras doctor is of the opinion that a certain facility, whose costs are
covered by MSP, is the most appropriate venue for Mr. Sangra.
Regular Ongoing Participation in Exercise and Work
Conditioning Program
[144]
This is one of the larger dollar items. As with the other proposed treatment
items, Ms. Berrys recommendation accords with the medical evidence. For example,
Dr. Caillier recommended:
I recommend that he work one-to-one with the rehabilitation assistant
or kinesiologist to develop a home based and gym based exercise program as well.
I recommend that he have at least a further 24 to 28 sessions and then an
additional 10 to 12 sessions per year for the next three years to progress his activity
and exercises.
In my opinion, the balance difficulties are likely impacted
by the physical deconditioning that has ensued since the time of the
[collision] secondary to a reduction in his usual activities as well as
possibly impacted by his peripheral neuropathy.
I recommend that he not climb or do any activities at height.
He is at risk of falls. A fall could have a negative impact upon his ability to
function with a further traumatic brain injury.
I recommend that he be involved
in an exercise program to try to improve upon his balance and improve upon his
physical conditioning.
[145] As a
result, Ms. Berry recommended ongoing supervision and management from an
occupational therapist (OT) to provide OT based cognitive rehabilitation and
to oversee and make necessary adjustments to Mr. Sangras ongoing care from
other health care professionals is also required (Dr. Woolfenden refers to this
as case management). The cost ranges between $12,000 to $12,600 for a one-time
cost plus $4,800 to $5,040 annually.
[146] If Mr.
Sangra is no longer with his wife and is unable to live with his family, then
the cost will increase by an additional $7,200 to $7,560 per year.
[147] Ongoing assistance
from a rehabilitation assistant (RA) at four times per week is also required to
assist with physical rehabilitation and to ensure that Mr. Sangra continues
to attend at the pool and gym, and to exercise. The RA will also address with
him daily living skills, activities, communication, goals, will monitor and
help him try to enhance his general physical and emotional health, and direct
him to his family doctor at any sign of infection or adverse change in his emotional
disposition. The cost ranges between $24,960 and $31,200 annually. If he
resides on his own, the increased annual cost is $18,720 to $23,400.
[148] As well, ongoing
treatment (active, not passive) from a physiotherapist (and where appropriate,
a chiropractor) is needed. Treatment costs range between $840 and $1,080 per year,
plus an annual reassessment cost ranging between $70 and $125. Ms. Berry did
not include the higher cost of services from a kinesiologist, which was
recommended by one of the medical experts.
[149] I would
not include the cost of the gym and pool facility use at three to four times
per week, estimated by Ms. Berry to be $262.62 monthly, because it was a cost
incurred by Mr. Sangra prior to the collision.
Speech Pathologist
[150] Ongoing
treatment from a speech pathologist/therapist is required. The one-time annual
costs ranges between $ $6,562.50 and $7,500; in year two and thereafter, 20
hours per year at $2,625 to $3,000 annually.
Psychologist
[151] Consultation
with and treatment sessions (initially, 12) from a geriatric psychologist, who
will assess the number of treatments required and decide whether to add to them
or to decrease them, based on his mood, depression, and anxiety. The one-time
cost is $2,080 to $2,600.
Lifeline Device
[152] Due to his
balance problems, associated fall risk, and his inability to function
independently when his wife is at work, Mr. Sangra should be equipped with an
emergency device (known as a Lifeline) for home use. The initial cost is $89.95
plus tax, plus monthly costs of $57.95 (or $695.40 for an annual subscription).
Smart Phone
[153] A smart
phone as opposed to a simple cell phone is recommended. It will allow Mr.
Sangras care needs to be stored in one convenient place for review by all of
his caregivers, it will allow Mr. Sangra access to review his ongoing care
instructions, and allow him access to telephone his wife or family in case of
emergency when he is out of the house (for example, when he tries to board a
bus or walk to the local store). An IPhone 5C was recommended, for a one-time
cost of $469 plus a plan ranging between $216 and $300 per year.
Homemaking Assistance
[154] Homemaking
assistance (four hours per week, not including meals, ironing, or laundry) is
recommended. The cost is $5,564 to $5,720 annually. If Mr. Sangras wife and family
are unable to live with him, the additional cost is $8,346 to $8,580 annually.
Home Maintenance and Seasonal Yard Care
[155] Thirty four
hours for annual home maintenance and 16 hours of yard and garden care are
recommended at a cost of $2,430 to $4,010 annually.
Taxi Fares
[156] The
recommendation is based on anticipated use to get to medical appointments ($241.92
per year for 24 visits) and to the gym and pool facility ($1,320.96 to
$1,674.24 per year for 96 visits). Taxi transportation to and from medical
appointments is necessary to ensure that Mr. Sangra gets to them because he is
not always feeling well enough to take public transportation, and even when he
is, travel must be short. Mr. Sangra finds it difficult to enter and exit the
bus and, when there is no seat available, he is unable to stand while the bus
is moving. Also, an allowance is necessary to ensure that Mr. Sangra gets to
the gym in inclement weather.
[157] I would
not include in the award the cost of an annual bus pass for seniors (annually
at $624), recommended for Mr. Sangra to make use of three to four times per
week during clement weather, because he was using a bus pass prior to the collision.
Hearing Aids
[158] Hearing
aids are recommended; they cost $5,600 and have a life expectancy of up to five
years.
Medications
[159] Medications
for pain and to assist with cognitive impairment are recommended, as is a nutritional
supplement (Boost) given his problems swallowing. The annual costs are $97.20
to $129.60 for Tylenol and $659.94 for Boost at one per day (at $1.83 per
bottle). Other medications such as Effexor, Nortriptyline, and Gabapentin are
itemized on a per tablet or per month basis (ranging from $.06 to $1.45 per
tablet and $1.80 to $10.80 per month) depending on the drug.
Financial Management Assistance
[160] Financial
management assistance is necessary. This item is separate from a management fee
because it deals with managing his cash flow and immediate financial needs as
opposed to his award (which is invested). Mr. Sangra is unable to manage money
due to his cognitive deficits. The costs are $65 to $69 per year for an accounting
professional, plus $720 to $840 per year for a bookkeeper.
Legal Assistance
[161] Limited legal
assistance is required to ensure that neither Mr. Sangra nor his guardian (Ms. Sangra)
enter into improvident agreements. He is unable to make prudent decisions, let
alone comprehend legal matters such as contracts for services. The cost is put
at $900 to $1,100 per year.
Ms. Sangra
[162]
Ms. Berry made additional recommendations for care to assist Ms. Sangra
in providing ongoing care to Mr. Sangra because her ability to provide care for
him reduces the overall cost of external care providers. Ms. Berry recommended counselling
from a licensed counsellor to review the medical information and treatment
recommendations and plans to guide Ms. Sangra in her role as a caregiver, and
to relieve her own fears and anxieties to enable Mr. Sangra to progress with his
rehabilitation program and community reintegration as he desires and the
therapists and physician see as reasonable and safe.
The Position of Ms. Sine
and ICBC
[163] Ms. Sine and
ICBC relied on the opinion evidence of occupational therapist Robert Gander to
challenge many, but not all, of Ms. Berrys recommendations.
[164] Mr.
Ganders evidence was basically a critique of the medical and OT evidence
adduced in Mr. Sangras case. Unfortunately, Mr. Gander did not meet with Mr.
Sangra, did not attend at his home, nor did he speak with his wife or family. He
has minimal experience dealing with patients who suffer from brain injuries. It
became clear during Mr. Ganders testimony that his experience in providing
cost of future care opinions is far less than Ms. Berrys. It also became clear
that Mr. Gander approached his task by employing a standard procedure. I
am satisfied that he applied that standard procedure on an inappropriate,
unduly fixated and overly-narrow interpretation of a survey that does not
measure functionality and instead only reports responses concerning use, and applied
it on a general notion that people over 80 years of age are not entitled to
awards for home maintenance and yard care. Mr. Gander conceded in
cross-examination that he has never made a recommendation that any person of
that age, or older, receive such care.
[165] By way of
example, Mr. Gander criticized Ms. Berrys estimate for physiotherapy, OT, and
RA costs. He said that OT and physiotherapy costs are normally billed out at approximately
$40 and $60 per hour, respectively. In cross-examination, he conceded that he
based his critique on a survey without knowing how many people participated in it
and without making any of his own inquiries of OTs and RAs in Vancouver. He
also conceded that he did not factor into his consideration the higher cost of
in-home visits. I am satisfied that Ms. Berry appropriately investigated the
costs of in-home providers who had the expertise to assist Mr. Sangra, and I
accept her recommendations.
[166] Mr.
Gander also criticized Ms. Berry for allowing for home maintenance and repairs
and seasonal yard maintenance, stating that it was something Mr. Sangra would
have had to pay for in any event. Mr. Gander was unaware that Mr. Sangra was a
certified tradesman who was qualified and did perform maintenance and repairs around
the house, including plumbing repairs, on a regular basis prior to the
collision. He did not take into account that Mr. Sangra looked after the yard
work. Mr. Ganders criticism, which I find to be unfounded, highlights the
problems of his methodology in critiquing based on a standardized approach without
having met Mr. Sangra or his family and without having ascertained the facts
surrounding his pre and post-collision circumstances.
[167] I found
Mr. Gander to be unduly argumentative, and seemingly unwilling to concede the
obvious. He propounded the appropriateness of relying on the survey until
reliance on the survey was no longer suitable to the interests of the defence
(when it became apparent that a more measured interpretation of the survey
demonstrated that Mr. Sangra, in fact, belonged to an exceedingly unusual
group of people 75 years and older). Unlike Ms. Berry, I did not find him to be
impartial, considered, or objective. For example, when Ms. Berry realized that
she made an arithmetical error, she quickly conceded it, and revised her opinion
in favour of the defendants.
[168] Mr. Gander
was also seemingly unaware of the approach taken in the cases, such as Andrews,
concerning homecare and restitutio in integram, that the standard is not
merely provision but compensation to a person who would have been able to care
for himself in his home environment if he had not been injured. In response to
one of his answers that negative contingencies for Mr. Sangras advancing age
should reduce the future care award, Mr. Gander was asked to consider the
impact of the very high costs of around the clock nursing care should Mr.
Sangra require it. Mr. Gander responded that there were cheaper alternatives.
He said that Mr. Sangra could be placed in a care facility as opposed to being
provided for in his home.
[169] The
approach proscribed in Andrews at p. 246 is regularly applied in this
province: see, e.g., Monych v. Beacon Community Services Society,
2009 BCSC 562 at para. 86; Aberdeen v. Langley (Township), 2007 BCSC 993
at para. 84. It is only when homecare is not medically appropriate, given the
nature of the persons injuries and ongoing care needs, that institutional care
as opposed to homecare will be the basis of the award: see, e.g., Arce (Guardian
ad litem of) v. Simon Fraser Health Region, 2003 BCSC 998 at paras. 130 and
224-225.
[170] I will
also observe that when pressed in cross-examination, Mr. Gander conceded that
the risk that Mr. Sangras level of function would have, absent the collision,
declined to the point where he was unable to perform some of the chores and
maintenance he had been carrying out was not only small, but was outweighed by
the risk that Mr. Sangras condition will, as a result of the injuries he sustained
in the collision, deteriorate at a faster rate resulting in substantially
greater care needs. In that regard, Mr. Gander conceded what I find to be the
case. Mr. Sangras ongoing requirements for future care and the risk that his
condition will deteriorate due to the collision far outweigh the contingent he
faced risks absent the collision.
[171] Consequently,
for all of those reasons, I find that I am unable to rely on Mr. Ganders
recommendations and his approach to the facts of this case. I prefer to analyze
the claim relying on the medical evidence adduced in Mr. Sangras case as well
as Ms. Berrys well-researched and considered opinions and recommendations.
[172] I also
found the defence objections to Ms. Berrys recommendations to be generally
without merit because they were premised on imposing an unreasonable continuing
burden on Ms. Sangra, or were not in accord with the medical evidence, or both.
[173] For
example, the defence disputed Ms. Berrys recommendation for four hours per
week for housekeeping expenses (not including meal preparation and laundry), on
the basis that Ms. Sangra is now and will continue to be capable of performing
much of those tasks. With respect, that assertion presumes a burden on Ms.
Sangra that she was not responsible for prior to the collision, presumes she
will carry out those tasks in addition to her regular job, presumes that she
will remain healthy and capable of doing both, and presumes that she will
outlive Mr. Sangra. It is the collision that has impacted upon the services Mr.
Sangra provided in the household. It is, in my opinion, unreasonable in the
circumstances of this case to deny compensation for those services to Mr.
Sangra on the basis that his wife can perform them all. Not only is Ms. Sangra
suffering under the toll of carrying out housekeeping tasks and working, the
medical evidence established that if this continues, it could lead to a
breakdown of Mr. and Mrs. Sangras relationship, or ill health for Ms. Sangra,
or both.
[174] Ms. Sine
and ICBC also take issue with Ms. Berrys recommendation for housekeeping
expenses because Mr. and Ms. Sangra presently pay for a housekeeper for two
hours a week. They submit that according to Ms. Berry, those services would
ultimately have been required for someone of Mr. Sangras age as he grew older.
In my respectful view, that was not the effect of her evidence. She testified
that in typical situations, OTs do not recommend housekeeping services as a
future care award for people over 80 because they are going to require
assistance in any event as they age. That, however, is not the case for Mr.
Sangra, Ms. Berry said, because she was satisfied from the medical evidence
that he would have been able to carry on with his activities without assistance
well into his 90s. I will observe that her recommendation accords with Dr. Cailliers
opinion evidence. Accordingly, there is no basis to depart from Ms. Berrys
recommendation.
[175] The
defence also disputes what they characterized to be Ms. Berrys recommendation
for lifelong physiotherapy in light of Dr. Cailliers recommendation that he
receive only 48 hours of kinesiology. However, in her testimony, Ms. Berry
explained her recommendation, which was based on the medical evidence, to be 12
sessions per year for the first year, and then to have Ms. Sangras need for
physiotherapy reassessed annually.
[176] The
defence objected to an allowance for a smart phone and submitted that a regular
clam shell device set up on a pay-as-you-go plan was sufficient. The
submission ignores the basis of the recommendation that all of Mr. Sangras
treatment protocols can be kept on one device for ready access by his many
treating health care professionals. It also ignores that due to the size of the
screen and manner in which it can be used, it would better serve Mr. Sangras
needs given his cognitive impairment. The evidence also established that Mr.
Sangra is presently using a pay-as-you-go plan, and when his communication
device is used as recommended, it will be less expensive for him to be on a
monthly plan. For those reasons, I do not accept the defence submission.
[177] The
defence also took issue with an allocation for an emergency lifeline device to
be worn by Mr. Sangra at all times, because it was duplicative of a cell phone.
With respect, the defence submission ignores the purpose of the device: to
facilitate emergency response in the event that Mr. Sangra needs it. For example,
if he falls, which is a substantial possibility, he would have to have his cell
phone close at hand and be able to use it. What if he falls and drops it, and
is unable to move to where it is located? He can simply use the lifeline to
summon assistance.
[178] The defence
disputes Ms. Berrys recommendation for taxi fares on the basis that it duplicates
other services. I disagree. According to Ms. Berry, the treatment
recommendations and plan calls for Mr. Sangra to try to become independent as
much as he can in the circumstances, so that he can travel on his own to the
gym and pool without being driven by an RA. To the extent that he can, and when
he can, the RA will then assist him with his needs at home. I agree with the
defence that one of the rehabilitation goals is to get Mr. Sangra more
comfortable taking public transportation, but realistically, he will only be
able to access public transportation when the weather and sidewalks are dry and
if he becomes more comfortable standing on the bus when there are no seats
available. In any event, much of the taxi fares claim covers trips to medical
appointments, and Mr. Sangras ability to get to them should not be dependent
on his ability to access public transportation.
[179] The
defence also takes issue with the claim for two more sets of hearing aids on
the basis that Mr. Sangra will only need one further set. Their submission
depends on the life expectancy of the hearing aids (up to five years). The
medical evidence is that hearing aids are medically necessary. In the
circumstances, given my finding concerning Mr. Sangras life expectancy (set
out in the next section), I agree with the defence submission that Mr. Sangra,
who has recently obtained his first set, should recover costs for one
additional set only. Even assuming that the hearing aids last only three years,
an additional set should be sufficient to cover his anticipated life
expectancy.
[180] I also
reject the defence submission that a management fee should not be awarded in
this case because it is duplicative of the future care award. They are different
matters. The management fee covers the cost of a professional to manage the
award, which is highly appropriate in this case given Mr. Sangras problems
with cognitive function. That fee is therefore a necessary component of the
award.
[181] The same
analysis applies to the claim for legal oversight. It does not, as the defence
contends, duplicate the management fee; they serve different purposes. Legal
oversight is also recommended by the medical doctors. I find that it is reasonable
and necessary.
[182] What about
the prospect of increased improvement for Mr. Sangra? I find that the prospect
exists so long as he continues to receive the care recommended by the medical
doctors and outlined by Ms. Berry. Even so, the prospect for improvement is
modest at best. Even without a fall, and even with continued assistance, Mr.
Sangra is at substantial risk of further surgery and complications arising from
it. I have determined that in this case the contingencies for a decline in Mr.
Sangras post-collision condition outweigh those for improvement. I also find
that his present impairments and the risk of further complications far outweigh
the contingency that Mr. Sangra would have declined absent the collision. I
accept Dr. Cailliers evidence that in all likelihood, Mr. Sangra would have
continued to perform at, or near, his pre-collision level until his death.
[183] Accordingly,
with the exceptions noted, I have determined that the mid-point of Ms. Berrys
cost analysis is fair, reasonable, and appropriate to the circumstances facing
Mr. Sangra as a result of the collision, and consequent upon the injuries that
Mr. Sangra suffered in the collision. I therefore assess an appropriate award
for costs of future care for Mr. Sangra to be the mid-point of Ms. Berrys
recommendation for one-time costs and, once an adjustment is made for hearing
aids (from three sets to two) and to remove the costs of the gym membership and
bus pass, to be the mid-point for annual ongoing costs over what I have
determined in the next section to be Mr. Sangras anticipated life expectancy.
Life Expectancy
[184] The
experts who provided opinions for Mr. Sangra and the defence, Drs. Keith
Chambers and Thomas Elliott, respectively, both agreed that the collision
reduced Mr. Sangras life expectancy. Beyond that, there was conflict in the
evidence and in closing argument concerning Mr. Sangras remaining life
expectancy and whether Mr. Sangras TBI itself poses a risk of reduction to
life expectancy.
[185] Both
experts used reports of statistics issued by Statistics Canada (Stats Can)
concerning averages for males across Canada. The Stats Can life table for all
Canadians is a compilation of persons in all manner of health and physical
condition. The population group is wide-ranging. The data also includes people
who are smokers, obese, wheelchair bound, suffer from cancer, and who suffer
from alcohol and substance abuse. The difference in the conclusions reached by
Drs. Chambers and Elliott arose in large part due to the negative factors that
influence those statistics.
[186] The opinions
of the experts concerning Mr. Sangras remaining life expectancy changed during
their testimony. Dr. Chambers, who is an epidemiologist, revised his opinion, upward,
explaining that given the passage of time since he prepared his report, Mr.
Sangra was now estimated to live another 4 months to 91.5 years. According to
Dr. Elliott, at 84 years of age, Mr. Sangras life expectancy was 5.9 years. By
the time of trial, he was on the eve of his 85th birthday. By surviving another
year to 85, a person in the general population of males in Canada would live
longer, to 91.5 years. Dr. Elliott agreed with the proposition that in essence,
the longer a person lives, the greater the statistical probability that they
will live longer. Dr. Elliott opined that Mr. Sangras life expectancy was
diminished as a result of the collision, by a year, so that he is, based on
statistical data, predicted to die at 90.5 years.
[187]
Dr. Chambers assessed Mr. Sangras life expectancy would have been,
absent the collision, higher than the data for average Canadian males of his
age group. He determined, following his assessment of Mr. Sangra (which included
a personal examination), that due to the injuries he sustained in the
collision, Mr. Sangra was now not unlike many 84 year old Canadian
males. In his report, prepared when Mr. Sangra was 84 years old and hence not
reflective of his revised opinion, he stated:
When compared
to his pre accident state, it is clear that Mr. Sangra now suffers from pain
that was absent prior to the accident, reduced hearing and reduced function and
mobility. He likely has reduced cognitive function related to the brain injury.
However, terms of life expectancy estimation, the comparison to be made is not
with the individuals prior functioning but with the general population of that
age and sex. In this case, Mr. Sangra is now not unlike many 84 year old
Canadian males, many of whom would already have reduced function in terms of
mobility and cognitive ability. In addition, many would have other conditions
such as diabetes, heart disease and a past history of smoking that makes up the
high normal death rates in this age group.
Mr. Sangra was
born on November 3, 1930 and is now 84.2 years of age. Current Canada Life
Tables predict a life expectancy of 6.9 further years of life to live to age
91.1 for a male of this age.
In my opinion, Mr. Sangra is now
not unlike the average Canadian male of that age and as such has a life
expectancy of living 6.9 further years of life.
[188] Thus, Dr.
Chambers found that as a result of the collision, Mr. Sangras life expectancy
has been reduced to that of the average Canadian male of Mr. Sangras age. He
did not, however, say by what amount; what he did say in his testimony was that
it did not change significantly.
[189] Dr.
Elliott used the average for 84 year old Canadian males as the starting point
in his analysis, without, I find, giving appropriate credit for Mr. Sangras
excellent pre-collision medical condition. He did not appropriately take into
account that Mr. Sangra was a non-smoker, drank alcohol only occasionally, was
not obese, was in excellent physical and cognitive condition prior to the
collision, nor Mr. Sangras favourable family history of longevity. From
that starting point, Dr. Elliott then reduced Mr. Sangras life expectancy
on account of his injuries, including his TBI. I agree with Mr. Sangras
submission that Dr. Elliotts starting life expectancy number was therefore
already weighted down by the fact that he was lumped in with people
considerably less health[y] than him.
[190] It became
clear during the cross-examination of Dr. Elliott that there were other sources
of information also applicable, if not more so, to Mr. Sangra. A key source of
information is Stats Cans life expectancy data for British Columbia residents.
In his testimony, Dr. Elliott conceded that persons residing in British
Columbia have a longer life expectancy than people living in the rest of
Canada. He admitted that the population of the BC cohort used for the Stats Can
BC data is substantial. Dr. Elliott admitted that the Stats Can life
expectancy table for Canadians consists of people of highly varied health
backgrounds and in various physical conditions. Dr. Elliott also admitted that
by using the Stats Can table for British Columbia male residents of Mr.
Sangras age, without factoring out inapplicable factors (such as obese persons
and smokers), that persons life expectancy would increase by .30 years. For
Mr. Sangra specifically, Dr. Elliott said that his life expectancy would
increase by a lesser amount, approximately .2 years, to 90.7 years.
[191] I must add
that I do not accept Dr. Elliotts explanation that Mr. Sangras pre-collision
life style has no impact in determining his life expectancy. That opinion is
off-side the rest of the medical evidence adduced in the case, and was, in any
event, an opinion that he appeared to retreat from in cross-examination. I
found it to be significant that when confronted with the results of using Mr.
Sangras details (e.g., his health and factoring out smoking and obesity) in an
interactive life expectancy program that he posted on his own website, Dr.
Elliott admitted that Mr. Sangras life expectancy increased by almost two
years from his original opinion, to 93.4 years. I reject the defence submission
that an analysis based on Dr. Elliotts program posted on his website should be
discounted or ignored. I did not find the evidence concerning it to be, as the
defence asserted, vague. It is a website that Dr. Elliott intentionally
developed and posted for use by, amongst others, life insurers (whom he
regularly advises), to determine life expectancy and to calculate appropriate
premiums.
[192] I also
found that Dr. Elliotts opinion that Mr. Sangras TBI, on its own, reduced his
life expectancy, was at odds with the other medical evidence adduced in this
case. During his cross-examination, it became clear that the basis of Dr.
Elliotts opinion was a data table contained in a chapter in a medical text
(Data Table). Unfortunately, the Data Table reports on a study of an
uncertain group of persons up to age 50, but not beyond. The size of the cohort
is not reported and was not known to Dr. Elliott. Strangely, although Dr.
Elliott defended his decision to use the Stats Can table for all Canadian males
to provide his opinion of Mr. Sangras life expectancy (he said it provided the
best data, better than the Stats Can data for British Columbia residents),
Dr. Elliott took a different approach when relying on the Data Table in
assessing the impact of the TBI on Mr. Sangas life expectancy. He relied on
data of an unknown provenance, and then extrapolated the results of that
unknown population, comprised of persons in the age 50 group, through what I found
to be a questionable analysis.
[193] I also
found Dr. Elliott to be inexplicably argumentative and defensive during his
cross-examination. He struck me as always pre-disposed to take a negative view
of every factor and contingency involved in the assessment of Mr. Sangras life
expectancy.
[194] Accordingly,
when considering the issue of the impact of the TBI on Mr. Sangras life
expectancy, I prefer the medical evidence adduced in Mr. Sangras case, i.e.,
that the risk of reduced life expectancy for Mr. Sangra arises not directly
from his TBI, but from the risk of adverse results of physical injury from a
fall or other happenstance (such as a further insult to the brain caused by a
fall; complications, such as infection, arising from a fall; or from further
surgery that may be required to repair his injuries caused by the collision.
[195] In the
result, I am satisfied from the admissions obtained from Dr. Elliott during his
cross-examination, that when the Stats Can data for B.C. residents are used,
and obesity and smoking are eliminated as factors, there is a real probability that
Mr. Sangras life expectancy has been reduced by the injuries he sustained in
the collision by one year, to 92.4 years.
[196] Counsel
for Mr. Sangra submits that I should determine Mr. Sangras life expectancy
based on this figure with a slight increase by .1 year to 92.5 years, because
the true impact of the TBI is far less than stated by Dr. Elliott. It is a
figure that is higher than the one posited by Mr. Sangras expert Dr. Chambers
(91.1 years), which was based on the Stats Can tables for Canadian males. In
submissions, Mr. Sangras counsel argued that greater reliance should be placed
on Dr. Elliotts admissions because they were obtained begrudgingly from an
otherwise argumentative and highly defensive witness.
[197] I do agree
that the admissions obtained by Mr. Sangras counsel were not readily conceded
and most often obtained after persistent and incisive questioning.
[198] Ms. Sine
and ICBC did not take issue with Mr. Sangras characterization of Dr. Elliotts
attitude and demeanor. They also agree that it is perfectly proper for a party to
rely on relevant admissions obtained from an adverse witness to advance that
partys case.
[199] I agree
with the submissions of counsel for both Mr. Sangra and Ms. Sine and ICBC that
predicting life expectancy is an inexact science. That was the determination
made in Clost at para. 288. The point was made in that case that life
expectancy opinions are statistical calculations that provide guidance to the
trier of fact. It is ultimately up to the court to determine whether those
averages ought to apply to a plaintiffs specific circumstances. In the case at
bar, I am persuaded that the appropriate starting point is to use the Stats Can
data concerning males residing in this province.
[200] The figure
proposed by Mr. Sangras counsel 92.5 years is 0.9 years below the 93.4
year life expectancy figure obtained from the Stats Can report of average life
expectancy of an 85 year old male resident in British Columbia, once obesity
and smoking are factored out. In applying Clost to the evidence in this
case, and particularly when considering Mr. Sangras individual circumstances,
his family history, and his pre-collision lifestyle and health, I am of the
opinion that the figure proposed on behalf of Mr. Sangra comes close to taking into
full account the real risks to him of earlier mortality arising from a fall, other
physical injury, and complications from possible surgery. It also accords with
Dr. Chambers opinion that Mr. Sangras life expectancy has been reduced by the
collision and Dr. Elliotts evidence that Mr. Sangras life expectancy has been
reduced by one year. Accordingly, I have determined, based on the best evidence
that I have in this case, that Mr. Sangras life expectancy has been reduced by
one year as a result of the collision, from what would otherwise be his
anticipated life expectancy of 93.4 years, to 92.4 years.
[201] The
actuarial expert, Mr. Darren Benning, valued the mid-point of Ms. Berrys range
of future care costs (and not contingent costs) to be $358,385. His opinion was
premised upon the life expectancy opinions in the written expert reports and not
the subsequent evidence of Drs. Chambers and Elliott, nor could it take into
account my ultimate determination. Mr. Bennings opinion could also not take
into account my determination to exclude from the future care costs award the
costs of one extra set of hearing aids, the annual bus pass, and the annual gym
membership. Consequently, further evidence from Mr. Benning is required. I will
leave it to the parties to try to work out, with Mr. Bennings assistance, the
appropriate figure. If they are unable to agree, then they should arrange with
trial scheduling to appear before me to adduce further evidence and provide
further submissions in order that I may determine the amount.
Contingent Costs
[202] In addition
to covering expenses that the medical evidence establishes are actually
required, an award for future care costs is also meant to provide for the real
and substantial possibility of loss: Cumpf v. Barbuta, 2014 BCSC 1898 at
para. 165; Clost at para. 448.
[203] Mr. Sangra
advances a claim for a portion of the costs associated with medical
contingencies that I find the medical evidence established may occur, such as
injury from a fall, dementia, seizures, further surgery and attendant
complications, bowel obstructions, and insufficient nutrition due to Mr. Sangras
problems with swallowing.
[204] I have
determined from the medical evidence in this case that there is a very real and
substantial possibility that Mr. Sangra will require additional care in the future
that exceeds the actual services and costs outlined by Ms. Berrys table of
actual costs.
[205] Drs.
Woolfenden, Caillier, and Bogod agree that Mr. Sangra is at a 4 to 5% risk of
developing alzheimers disease or another form of dementia. Dr. Woolfenden
opined that provisions should be made in case Mr. Sangra develops seizures or
Alzheimers Disease. Mr. Sangra is also at significant increased risk of developing
future brain injuries in the event of a fall (more likely now due to his
cognitive impairments, physical limitations, and hearing loss) or other trauma
because, due to the TBI and resulting cognitive deficits, his brains reserve
to recover has decreased. If those risks become reality, then Mr. Sangra will
require increased services for care, and possibly nursing care modifications to
his home. Ms. Sangra may not have the requisite ability or emotional resilience
to care for him at the same level or possibly at all. There is also a risk that
Ms. Sangra may predecease Mr. Sangra (there is a 3 to 6% risk that she could
pass away in the next five to seven years). The cost of round the clock nursing
care would be substantial. Mr. Gander admitted that it could be well over
$500,000, and possibly $1 million, annually, depending on hourly rates and
whether a registered nurse, licensed practical nurse, or care aides are
required all, or some of the time.
[206]
The contingencies described by Ms. Berry are in respect of additional
OT, RA, homemaking and homecare services, medications, and nutritional
supplements in the event that Mr. Sangras condition worsens, is no longer living
with his wife or his family, or suffers alzheimers disease or dementia, and requires
a greater quantity of nutritional supplements and seizure or other neurologic medications.
As I have noted, the costs are significant, especially for in-home nursing care
if Mr. Sangra suffers from alzheimers or dementia. If Mr. Sangra ends up
residing in an assisted living facility, annual expenses could range between
$17,400 and $47,400. Excluding nursing care, the collective costs of additional
OT, RA, and homemaking care could exceed, on a worst case basis, $230,000.
Seizure medication could cost over $7,000.
[207] The claim
presented on behalf of Mr. Sangra was $120,000, which is approximately 34% of
the present value figure of future care costs provided by Mr. Benning. As
I have noted, his opinion was premised on the mid-point of Ms. Berrys
recommended figures and the life expectancy opinion provided by Dr. Chambers.
[208]
Ms. Sine and ICBC argue that some of the items are unwarranted and
others are overstated. For example, they argue that the allocation for extra Boost
energy drink should be rejected because as an aging person, Mr. Sangra may have
required nutritional supplements in any event. The defence also submits that
there is no evidence that Mr. Sangra is malnourished. The defence submissions,
however, overlook the effect of the evidence in this case. Ms. Berrys
recommendation is made in the context of Dr. Cailliers opinion that swallowing
is an issue for Mr. Sangra, especially if he is rushed with eating. In her
opinion, he requires cueing and monitoring from family members because he is at
increased risk of aspirational pneumonia. He requires nutritional supplement
from products, such as Boost from time to time. She recommended that he
continue to use the product as needed. Mr. Sangra does not seek full
compensation for regular use of a nutritional supplement, but a smaller payment
that reflects what he submits are the risks caused by the lengthy amount of
time the feeding or G-tube was inserted. Although he uses the product from time
to time presently, if his condition worsens, he may well require additional
nutritional supplements.
[209] The
defence also submits that a claim for contingent housekeeping and homemaking
services is excessive and unwarranted because, they submit, there is no reason
to find that the plaintiff will not retain the support of [his] wife and
children and there is no evidence [that] has been put before the court that
the plaintiffs marriage is suffering or that his children are unsupportive. They
also argue that given Ms. Sangras age, it is unlikely that she will predecease
him.
[210] I am
unable to accede to those submissions for several reasons. First, they overlook
the evidence that the present burden on Ms. Sangra, in working and looking
after her husband, has and continues to place an undue physical and emotional
strain upon her. Second, the submissions also fail to take into account that no
in-trust claim is being advanced for Ms. Sangra for her ongoing support of Mr.
Sangra. Consequently, if I were to accept the defence submissions, then I would
be compelled to provide Ms. Sangra with an award for the value of ongoing
in-trust services. Finally, the submissions overlook the legal test I am
required to consider, i.e., whether there is a real and substantial possibility
that Mr. Sangra will require any or all of the contingent items. In that
respect, I find the recommendations to be an appropriate reflection of the real
and substantial medical risks facing Mr. Sangra as a result of the collision,
including dementia, seizures, further hernia surgery, small bowel obstruction, and
further injury (including further brain injury) from a fall.
[211] Various
methods are used to assess the value of an award for future contingencies. One
is to apply a percent amount to the future care award; another is to award a
lump sum that is a fair reflection of the risks. See, e.g., Morrison
(Committee of) v. Cormier Vegetation Control Ltd., [1998] B.C.J. No. 3279 (B.C.S.C.)
at paras. 106-110; Izony at para. 79. In Morrison, a positive
contingency of 15% was applied to the future care award due to the risks of
future care needs.
[212] In Morrison,
Madam Justice Boyd found at para. 106 that there was a very definite
possibility [the plaintiff] will require extra care in the future. She found
there were several positive contingencies (requiring additional care in future)
and was unable to confidently point to any contingencies which suggest any
lessening of [the plaintiffs] need for care. She determined that the
contingencies are likely all in one direction and found a contingency factor
of 15% ought to be added to future care costs: paras. 109-110.
[213]
In Izony, $150,000 was awarded on top of the care award of
$320,667 due to the substantial risk of deterioration in health and function.
In his reasons, Mr. Justice Masuhara analyzed the facts in this way:
[79] There is always, of
course, the statistical possibility that any of these worst case scenarios
could arise in the future. Given the length of their relationship and Mrs.
Izonys ability to keep working and care for her husband since the accident, I
do not see her future unavailability as a substantial possibility. On the other
hand, I conclude that there is a substantial possibility beyond the level of
mere speculation that in the future, Mr. Izonys various physical conditions
may deteriorate. Mrs. Izony may be unable to care for him at home without
assistance beyond that allowed for in the annual homemaker allowance of
$13,000; or he may indeed have to reside in a care facility. I do not think the
probability of either of these eventualities is as high as 50%. I think one
must also consider that in such an unfortunate situation, certain annual costs
that have been permitted may no longer be required and should be taken in to
account in the estimation process to avoid double recovery. Doing the best I
can with the evidence and calculations provided, I allow an additional $150,000
for contingencies.
[214] The facts
of this case are similar to Morrison because the positive contingencies
point to, I find, the substantial probability of additional care being required
over time. The risk of suffering from dementia or alzheimers disease may be
small at 3 to 4%, but the economic consequences are significant. The same can
be said of the risk that Ms. Sangra may predecease her husband. The greatest
risk faced by Mr. Sangra is the risk of further injury from falling, but unless
Mr. Sangra suffers a significant worsening of his cognitive function, the
economic consequences facing Mr. Sangra from that risk are less than those
arising from dementia or alzheimers disease.
[215] Thus,
while Mr. Sangras present condition will be maintained by the future care
award provided for, the possibility that he will improve is modest at best, and
moreover, I find, diminishing rapidly with time. In this case, as in Morrison,
the contingencies are likely in one direction.
[216] Given my
finding concerning contingencies, I have determined that there should be an
award for his contingent medical needs.
[217] As in Izony,
I must do the best I can with the evidence and calculations provided, to determine
an appropriate amount to provide for future contingencies taking care to avoid
double recovery. In my opinion, an appropriate allowance for contingent risk
and associated costs is for 25% of the actual future care award. For reasons I
stated in the previous section concerning life expectancy, the actual amount of
the award will have to be calculated once the present value of the award for actual
care costs is determined. Should the parties be unable to agree to the amount,
then they may arrange to return to adduce further evidence and submissions.
8. Loss of Housekeeping Capacity
[218] Mr. Sangra
advances a claim for loss of housekeeping capacity because he is no longer able
to carry out his pre-collision housekeeping duties. He was responsible for most
of them. Ms. Sangra did cook some meals, ironed her uniform, and did some of
the grocery shopping with Mr. Sangra. Otherwise, Mr. Sangra performed all of
the other tasks required to maintain their household and the yard. For his
claim for loss of future housekeeping capacity, Mr. Sangra submits that a
reasonable estimate of pre-collision hours devoted to housekeeping is a minimum
of 21 hours per week (for cleaning, ironing, cooking, and shopping), for which
Mr. Sangra did the majority of the work. I agree with that submission and
also, that he performed all of the household maintenance services. Presently,
and apart from being supplemented with two hours of assistance per week, Ms.
Sangra performs all of the household duties (but not maintenance) in addition
to working full time. Ms. Sangra encourages her husband to help with the
grocery shopping, but it is an attempt by her to keep her husband mobile and
mentally active because otherwise his presence while shopping slows the process
down considerably and is, in reality, an additional burden on her.
[219] A claim
for loss of housekeeping capacity is in respect of the loss of the value of the
work which would have been rendered by Mr. Sangra, that but for the collision,
he is no longer able to perform. It is a separate head of damage. The claim is
assessed on the basis of the value to a plaintiff, of the services provided. An
award is unlike an award for cost of future care because it is for a negative
loss. In that sense it is akin to a loss of working capacity. Even though there
may be some overlap with a future care award, the claim is distinguishable
because it involves the performance of work for others within the family unit: OConnell
(Litigation Guardian of) v. Yung, 2012 BCCA 57; Cumpf; Cooper-Stephenson,
Personal Injury Damages in Canada, 2d ed. (Scarborough: Carswell, 1996)
at 315.
[220] An award
for this head of damage may be made for past and prospective loss of capacity,
even where a plaintiff did not incur any actual expense for hired services or
if they were gratuitously replaced by a family member: Cumpf at para.
182. Following the decisions of the Court of Appeal in McTavish v.
MacGillivray et. al., 2000 BCCA 164 and Dykeman v. Porohowski, 2010
BCCA 36, Mr. Justice Greyell also noted in Cumpf at para. 183 that the
preferred approach for assessing the loss is to estimate the cost of
replacement services. The same holding was made in McTavish at paras.
48-49 the preferred approach is to assess the loss by estimating the cost of
replacement services at a rate commensurate with their nature and quality.
[221]
In McTavish at para. 63, the Court of Appeal described the nature
of the award as a head of damages that is separate from non-pecuniary damages
and an in trust claim:
As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is diminished
in part or in whole ought to be compensated for that loss. It is equally well
established that the loss of housekeeping capacity is the plaintiffs and not that
of her family. When family members have gratuitously done the work the
plaintiff can no longer do and the tasks they perform have a market value, that
value provides a tangible indication of the loss the plaintiff has suffered and
enables the court to assign a specific economic value in monetary terms to the
loss. This does not mean the loss is that of the family members or that they
are to be compensated. Their provision of services evidences the plaintiffs
loss of capacity and provides a basis for valuing that loss. The loss remains
the plaintiffs loss of economic capacity.
[222]
Mr. Sangra seeks a total award of $35,000. His claim is predicated on the
rounded-up total ($34,960) of what he submits are actual past losses, plus an
estimate of a future loss based on the hourly rate used in Cumpf, which
was $20.
[223]
For the purpose of assessing an appropriate award for this head of
damage, it is important to note my finding that Mr. Sangra enjoyed providing
those services and they provided an important component to his quality of life.
The evidence establishes that Mr. Sangra was a very good cleaner, even though
not a professional one. I agree with Mr. Sangras submission that $20 per hour
is an appropriate figure to use, especially in light of the hourly rates
described by Ms. Berry for professionals.
Past Loss of Housekeeping
Capacity
[224]
Mr. Sangra particularizes the loss of past housekeeping services for two
periods. The claim for the first period is described in the following excerpt
from Mr. Sangras written submissions:
From February 23 to September 2,
2014, Mr. Sangra performed no housekeeping duties. No housekeeping was provided
until September, 2014 (Ms. Berry notes) a period of approximately 27 weeks,
Mr. Sangras loss of housekeeping capacity during that initial period of time
would be 27 weeks x 14 hours x $20 = $7,560.
[225] The second
period is from September 2014 to trial:
From September, 2014 to date,
there has been 2 hours of housekeeping [provided to Mr. Sangra] per week. [Deducting]
those hours from Mr. Sangras hours means that, to date, Mr. Sangras further
loss of housekeeping capacity would equal about 60 weeks x 12 hours x $20 =
$14,400.
[226] I agree
with the analysis and therefore, I assess the claim for past services to date
$21,960 is appropriate.
[227] Mr. Sangra
also points to the risk that he may not be able to reside with his wife and family,
and if that occurs, then Mr. Sangra relies on Ms. Berrys opinion to establish that
he requires 20 hours per week of assistance: ten hours of housekeeping: six hours
for food preparation: and four hours for cleaning.
[228] Even if
Ms. Sangra remains living with her husband, she is not able to carry out
household maintenance and garden and yard care (yard work is estimated at 1.25
hours per week plus 1.67 mows per month).
[229]
The position advanced on behalf of Ms. Sine and ICBC is that the award
may be, but is not always compensable as a direct calculation. In some cases,
the award is made as a lump sum and in other cases loss of housekeeping
capacity is reflected in the award for non-pecuniary damages. They also submit
that care should be taken to avoid providing an award that amounts to double
or, if an in trust award is made, triple recovery. Their ultimate submission is
that the award should not exceed $20,000.
[230] I agree
with the defence submission that in assessing the award, I should be mindful to
avoid double or triple recovery. In that respect, I am satisfied that the claim
advanced on behalf of Mr. Sangra specifically excludes the provision of past
services provided to Mr. Sangra, and future services recommended by Ms. Berry.
It also takes into account that the services recommended by Ms. Berry do not
cover all of the maintenance services that Mr. Sangra was providing before the
collision.
Future Loss of
Housekeeping Capacity
[231] The claim
for future loss of housekeeping capacity is predicated in part upon the
possibility that Ms. Sangra may not continue to reside with her husband. In
order to avoid the prospect of double recovery, Mr. Sangra is not seeking an in
trust award for Ms. Sangras future services.
[232] I agree
with Mr. Sangras submission that it is reasonable to assess the claim based on
14 hours per week as an appropriate estimate for his loss of future
housekeeping capacity (representing the majority of pre-collision efforts). With
credit applied for the housekeeping and maintenance services recommended by Ms. Berry,
as well as those services provided by an RA to assist Mr. Sangra to improve his
function and to be able to carry out limited housekeeping tasks, all of which I
have included in the cost of future care award, I am satisfied that there is,
at a minimum, a net shortfall of approximately two hours per week for work to
be done, or $2,000 per year.
[233] Mr.
Benning provided a present value multiplier, to be used to assess the future
loss of housekeeping capacity component of the award, which was based on a life
expectancy assessment that is different than the one I have found (he valued
future loss of housekeeping capacity at $13,000). Accordingly, counsel should
address quantum of future loss of housekeeping capacity once Mr. Benning
provides his further opinion concerning present value, and use it to calculate
the award based on my findings in this section. Failing agreement, counsel may
return to seek a determination.
9. Special Damages
[234] For the
most part, special damages are not in issue. I was advised at the start of the
trial that an agreement was reached between Mr. Sangra, Ms. Sine, and ICBC,
that Mr. Sangra is entitled to an award of special damages in the amount of
$11,262.49 for expenses incurred up to the trial. It turned out that defence
counsel made an error and did not intend to agree to the stated amount because the
figure encompassed the cost of repairing Mr. Sangras Buick (i.e., $1,908.02),
which was included in the aforementioned figure.
[235] Before the
collision, Mr. Sangra carried out all of the repairs to the vehicle himself. He
is no longer able to do that because of the TBI and other physical injuries he
suffered. The vehicle needed repairs, partly due to lack of use. I find the
cost in this case to be appropriate and reasonable. It became necessary for two
reasons: Mr. Sangra is no longer able to perform the tasks required to keep the
vehicle in proper operating condition and as a result, repairs to the vehicle
caused by inattention were necessary.
[236] Accordingly,
Mr. Sangra is entitled to special damages of $11,262.49, inclusive of the
repairs to his Buick.
10. Management Fee
[237] Although
evidence was adduced in respect of costs, counsel asked that I defer my
determination until after these reasons are issued. If their clients fail to
reach agreement in respect of an appropriate fee, then they may return before
me to make submissions and for my determination.
11. In-Trust Claims
[238]
The test for in-trust awards was recently set out in Farand v. Seidel,
2013 BCSC 323 at paras. 99-100. They are normally awarded for support services
provided beyond those normally to be expected in a marital or familial
relationship:
[99] The overarching principle to apply in determining
in trust claims is reasonableness. In trust awards are generally limited to
seriously injured plaintiffs for support services beyond those normally to be
expected in a marital or familial relationship: Ellis v. Star [citation
omitted].
[100] The principles to be applied in determining in
trust claims are well described in Bystedt (Guardian ad litem of) v. Bagdan
[citation omitted]. The six relevant factors are:
(a) the services provided must
replace services necessary for the care of the plaintiff as a result of the
plaintiffs 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;
(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; and
(f) the family members providing the
services need not forgo other income and there need not be payment for the
services rendered.
[239] Both Ms.
Sangra and Roger Sangra spent a great many hours with Mr. Sangra when he
was at Royal Columbian, Mt. St. Josephs, and Holy Family hospitals. Some of
the time spent went beyond provision of support expected from family members.
They actively assisted his recovery efforts, i.e., helping the nursing and
rehabilitation staff with Mr. Sangras cognitive, speech, physical, and
emotional recovery.
Ms. Sangra
[240] Ms.
Sangras claim is for services she provided to her husband to the date of
trial. The amount sought is $68,000. There is no claim for an award for future
service because it would involve much (but not full) duplication for the claim
for some of the services sought in the cost of future care and loss of
housekeeping capacity awards. The position advanced by Ms. Sine and ICBC is
that an in-trust award is warranted, but not to the extent sought, and only for
Ms. Sangra. They submit that an appropriate amount ranges between $10,000 and $20,000.
[241] Ms. Sangra
was off work over six months, from the date of the collision until September 2,
2014. She spent some 12 to 15 hours per day, and many times, more, with her
husband while he was at the three hospitals. When Mr. Sangra came out of his
coma and acute delirium, Ms. Sangra worked with him daily to help with his
speaking because when he spoke, he was not making sense. She sat by her husband
and conversed with him in a manner to help him orient his words and thoughts.
[242] Much, but
not all, of the time spent, and services provided by Ms. Sangra while Mr.
Sangra was at Royal Columbian, were in the nature of love and support
reasonably expected of a family member. Her compensable services and her
contribution to her husbands recovery did, however, increase substantially
once he was transferred to Mt. St. Josephs hospital, and carried on from
there.
[243] I find
that Ms. Sangras significant efforts to help her husband with his recovery
while he was hospitalized, particularly at Mt. St. Josephs and Holy Family hospitals,
augmented the rehabilitation care provided by the medical staff to Mr. Sangras
recovery. With the encouragement of hospital and rehabilitation staff, and in
addition to helping her husband with his communication, Ms. Sangra was continuously
at his side assisting him to become flexible and mobile. She also fed and cleaned
him, changed his soiled bedding and clothing and helped him with his toileting.
The evidence establishes that hospital staff encouraged Ms. Sangra to do as
much as she could to assist because of their heavy workloads. Her relentless efforts
to promote her husbands recovery have continued since his release from Holy
Family Hospital. I am satisfied that her efforts are directly linked to the
qualitative nature and speed of Mr. Sangras recovery.
[244] I agree with
the calculations of plaintiffs counsel (set out in his written submissions)
that insofar as the time Ms. Sangra spent at Mt. St. Josephs Hospital and Holy
Family Hospital with Mr. Sangra, and then on his return home, this should inform
the award. She spent 12 to 15 hours per day at the hospitals, and often, more.
On his return home, Ms. Sangra remained off of work and devoted at least ten
hours per day attending to her husbands need. Mr. Sangras counsel acknowledges
in submissions that not all of her time is compensable and submits that half of
the minimum amount of time spent while Mr. Sangra was at home, or five hours a
day, should be the basis of the award. In submissions, Mr. Sangras counsel
then urged upon me a value for that time at $25 per hour based on Ms. Berrys
report concerning the costs of OT and RA services. As a result, the claim is
presented on the basis of $41,000 while Mr. Sangra was in the hospitals and $27,000
for Ms. Sangras efforts when her husband returned home, until she
returned to work.
[245] The
difficulty I have with the calculation is that a large portion of the time
spent by Ms. Sangra while her husband was at Royal Columbian is not compensable
because his critical condition was primarily attended to by the medical and health
care professionals. Without in any way demeaning the extraordinary efforts she
provided to her husband at Royal Columbian, I am of the respectful opinion that
much of that time is appropriately characterized as in the nature of love and
support.
[246] I have no
hesitation in finding that the $27,000 proposed for Ms. Sangras time with her
husband while at their home, is reasonable and appropriate. Her time was
effectively spent providing services that would have been otherwise required of
OTs and RAs, which as I have noted, helped promote his recovery to the point
where she could return to work and Mr. Sangra was able to be cared for by
health care providers in fewer hours.
[247] The claim
for $41,000 in respect of services while Mr. Sangra was in the hospitals should,
however, be reduced to take into account the factors I have spoken of that
apply to Mr. Sangras stay at Royal Columbian of approximately five and
one-half weeks, which was just under one-third of his total sixteen weeks in
all three hospital. I am of the view that a nominal award of $1,000 should be
awarded for Ms. Sangras services when her husband was at Royal Columbian.
Accordingly, I assess a fair and appropriate award for the portion of the in-trust
claim while Mr. Sangra was in the three hospitals, to be $28,000, which
represents two-thirds of $41,000 plus $1,000.
[248] Therefore,
when the awards for hospital and at home services ($27,000 and $28,000) are
added together, the total in-trust award for Ms. Sangra is $55,000.
Roger Sangra
[249] Roger Sangra
is 27 years old. He moved to the United Kingdom since September 2014 to attend
law school.
[250] I am also
satisfied that Roger Sangras contribution to his fathers recovery went beyond
the normal love and support reasonably expected of a family member. He assisted
with his fathers care and took time off of work to do so (Roger Sangra was
working full-time shift work for DHL Canada earning $17 per hour). For example,
he assisted with feeding, moving his father in and out of his wheel chair, spoke
with him about sports and current events and read books to him regularly to
help prompt improvement in his communication skills. The nursing staff also encouraged
him to participate in Mr. Sangras rehabilitation as much as possible in order
to motivate him to recover. His services were provided over a shorter period of
time and for fewer hours than his mother. The plaintiff seeks an in-trust award
of $6000, but without the same quality of evidence establishing the number of
hours spent that goes beyond love and support, I am left in a position to assess
only a modest award of $2,000.
Summary
[251] For the
reasons set out above, Mr. Lima is solely responsible for the collision and the
injuries sustained by Mr. Sangra. Ms. Sine is vicariously liable to Mr. Sangra
for Mr. Limas conduct.
[252] The
collision caused Mr. Sangra to suffer a multitude of traumatic injuries
including a complicated mild traumatic brain injury. His vibrant and vigorous
pre-collision life has been dramatically and adversely affected. He is no longer
capable of carrying out most of the functions and activities that he did before
the collision. He also suffers from depression and isolation. A return to his
pre-collision activities and mental and physical state is not possible even
with significant assistance. The awards specified in these reasons do not, as
the Supreme Court of Canada warned not to do in Athey v. Leonati, [1996]
3 S.C.R. 458, put Mr. Sangra in a better position than his original position
prior to the collision.
[253] I have
determined that Mr. Sangra is entitled to the following awards:
(a) Non-pecuniary damages of $315,000;
(b) A cost
of future care award, excluding contingent items, which will be finalized once
Mr. Benning provides a present value of the mid-point of Ms. Berrys recommendations
(after he takes into account my finding of life expectancy and after he deducts
the items I determined should be removed from Ms. Berrys recommendation);
(c) A cost
of future care award for contingent items, which shall be calculated at 25% of
the future care award;
(d) Special
Damages in the amount of $11,262.49;
(e) Loss of
Past Housekeeping Capacity of $21,960;
(f) Loss
of Future Housekeeping Capacity to be determined or agreed to by the parties
following further present value opinion evidence from Mr. Benning, based
on my finding of an entitlement of $2,000 per year and my determination of his
life expectancy;
(g) An in-trust
award for Ms. Sangra of $55,000; and
(h) An in-trust
award for Roger Sangra of $2,000.
[254] In
addition, Mr. Sangra is entitled to receive a management fee so that his award
may be appropriately invested and protected. Unless the parties reach agreement
following their review of these reasons, they may arrange to appear before me
to provide submissions concerning an appropriate management fee.
[255]
Unless there is some matter that I am unaware of, or unless counsel wish
to make submissions concerning costs, Mr. Sangra is entitled to costs of the
action.
The Honourable Mr. Justice Walker