IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101209

Docket: S19006

Registry:
Chilliwack

Between:

Pamela Margaret
O’Connell, by her Litigation

Guardian, Barry
John O’Connell

Plaintiff

And

Andy Tak Yan Yung
and

Fortune Pacific
Enterprises Inc.

Defendants

Before:
The Honourable Madam Justice Fisher

Reasons for Judgment

[1]          
The plaintiff, Pamela O’Connell, was seriously injured in a motor
vehicle accident on November 27, 2007, when a tractor-trailer struck her Volvo
and crushed it against a wall inside the Massey Tunnel near Delta, B.C.  She
suffered many injuries, including severe traumatic brain injury.  She brings
this action by her Litigation Guardian and husband, Barry O’Connell.

[2]          
Ms. O’Connell was hospitalized for about five months before she was
discharged home in the care of her husband.  She is not able to live
independently.

[3]          
Liability has been admitted and the parties agreed on the amount of
damages for past loss of income, future loss of earning capacity and special
damages. They also agreed that Ms. O’Connell’s life expectancy is 18.9
years as of the date of trial. The plaintiff seeks an assessment of general
damages for pain and suffering and the cost of future care.  She also seeks an
in trust award for the services that her husband has provided to her since the
accident.

The evidence

[4]          
Ms. O’Connell briefly appeared on the first day of the trial but
did not remain in the courtroom and did not testify.  Her counsel advised me
that he did not consider that she was able to give reliable evidence. I heard
from her husband, her son, her sister, and several friends and acquaintances.
While I find it somewhat difficult to assess damages without hearing directly
from the plaintiff, particularly damages for pain and suffering, given the
evidence in this case I accept that Ms. O’Connell has a limited ability to
provide relevant evidence.

[5]          
There is no dispute in the evidence about the nature and extent of Ms. O’Connell’s
injuries and her medical prognosis for the future.  There is some dispute about
the extent to which she can live at least semi-independently and what care she
will require in the future.

The plaintiff before the accident

[6]          
Pamela O’Connell was 58 years old when she was injured.  She and
her husband have one adult son, Daniel O’Connell.  She was an active woman who
regularly enjoyed walking, hiking, tai chi, gardening, and travelling.  She was
an avid reader.  She was employed full time as a service contract administrator
for a medical imaging company.  She and her husband had a stable and happy
marriage. They shared responsibilities for cooking, shopping, housework and
gardening but Ms. O’Connell was primarily responsible for raising their
son and she did most of the planning and organizing for the family.

[7]          
Her husband described her as reasonably quiet
and reserved, extremely conscientious and organized: “If she said she was going
to do something… it was a hundred percent. I could always rely on her to do
what she said she was going to do.”  Her son described her as “always bubbly,
always excited about life, a very hard worker, extraordinarily well organized… just
a pleasure to be around.”  He testified that she was “a stickler for personal
hygiene,” was always well dressed, and never seemed to be tired:

…I think we
are all amazed with our mother’s abilities to do everything and take care of
the home and take care of the family and the fact that she was also working as
well, was sort of amazing to
me.

[8]          
Family was very important to Ms. O’Connell.  The extended family
would get together for dinner often, usually every month, for various birthdays
and other celebrations. These gatherings were either at the O’Connell’s home or
the home of Ms. O’Connell’s older sister, Patricia Muller.  Ms. Muller
testified that she relied on her sister a lot and they were very good friends. 
She described Ms. O’Connell as “the sensible, down to earth one” who was
always there for her.

[9]          
Ms. Muller’s descriptions of her sister were consistent with
those of Mr. O’Connell and Daniel O’Connell.  Her co-workers described her
as a very pleasant person who got along with everyone and was very competent in
her work.  A friend described her as a very organized, energetic,
outgoing, intelligent person who had many interests and was kind, caring and
responsible with her friends and family.

The plaintiff’s injuries

[10]       
The accident on November 27, 2007, was a serious one.  Ms. O’Connell’s
vehicle was essentially demolished and she was trapped inside it for up to an
hour.  The paramedics who examined her at the scene noted that she was awake
but confused and unresponsive to questions, and had an obvious fracture to her
right femur.  Her Glasgow Coma score (GCS) was 13.  She was airlifted to Royal
Columbian Hospital and assessed in the Emergency Room.  Her GCS was still 13
but she appeared to be losing consciousness and was combative.  She was
intubated and sedated and transferred to the intensive care unit, where she
remained for about two weeks.  She was then transferred to the critical care
unit and then a ward. On January 17, 2008, she was transferred to Peace Arch
Hospital and on March 7, 2008 to GF Strong Rehabilitation Centre.  She was
discharged on April 22, 2008.

[11]       
Ms. O’Connell’s injuries included the following:

·        
closed head injuries to the tissue of the brain (shear haemorrhages)
as well as the surface (subdural and subarachnoid haemorrhages), resulting in
traumatic brain injury;

·        
cervical spine fracture;

·        
fractures to her right femur and ankle;

·        
fractures to her left tibia and fibula;

·        
various fractures to her right and left toes;

·        
rib fractures;

·        
displaced nasal fracture;

·        
sternal fracture; and

·        
internal injuries including laceration of the spleen and liver
contusion.

[12]       
She had immediate surgery for the right femur fracture.  In the days
that followed she had surgery for the nasal fracture, the left tibia fracture
and the cervical spine fracture.  Her head injuries were treated
conservatively.

Progression in hospital

[13]       
During her stay at Royal Columbian Hospital Ms. O’Connell was noted
to have become progressively more alert but remained confused.  In the first
few days she did not recognize family members, although her husband thought she
was aware of who he was through touch.  Her son observed that she looked
fearful and seemed to revert back to her childhood.

[14]       
At Peace Arch Hospital, she began to regain mobility and slowly began to
recognize more people but she remained confused about where she was and had no
insight into the extent of her injuries. When two former co-workers visited
her, Ms. O’Connell thought that she had worked with one of them as a
reporter in California, which was not so.

[15]       
At GF Strong, Ms. O’Connell was more mobile but remained confused
about why she was there.  She refused to get up in the morning until her
husband began going there every day, getting her up and taking her to
activities. Her condition improved during her stay but her cognitive function
remained significantly impaired and she continued to have no insight into the
level of her dysfunction.

[16]       
Dr. Jennifer Yao and Dr. Heather Underwood, both physical
medicine and rehabilitation specialists, were Ms. O’Connell’s attending
physicians at GF Strong.  Dr. Yao described Ms. O’Connell’s progress:

She presented as a very pleasant individual who was still
confused but directable with verbal cueing.  Her admission Montreal Cognitive
Assessment (MOCA) score was 14 out of 30, with impairments in time orientation,
attention, short-term memory, visual-spatial and frontal lobe functions. 
Initially, she was able to walk using a walker but required supervision and
re-direction to help her stay on task and find the appropriate destination.  At
times, she can become irritable, especially in the morning, and not understand
why she needed to get up to attend therapy.  She was monitored closely on the
ward as she was at risk of wandering.

She improved over the course of her rehab stay.  She was able
to walk independently after a few weeks and her balance improved to a safe
level by the time of discharge.  She did not complain of any pain during her
rehab course but did complain of altered sensation over the dorsum of her left
foot.

Cognitively, however, she still needed frequent verbal
cueing, as her memory and problem solving abilities remained poor.  She had
difficulty remembering new information and needed assistance for any tasks that
were unfamiliar or required sequencing, such as cooking.  She had difficulty
with processing visual/spatial information. This impacted multiple functional
areas, such as grocery shopping, as she could not appropriately scan her
environment and identify where target objects may be located. By the time of
discharge, Ms. O’Connell was independent with her activities of daily
living but still needed supervision when outside.  She also needed assistance
or supervision for instrumental activities of daily living (e.g. cooking, using
transportation, and financial management).

From a language perspective, her
general spoken language and auditory comprehension were functional, but she
exhibited difficulties integrating multiple pieces of information.  She would
miss details in large paragraphs and had difficulty retaining the content of
written materials.

[17]       
Dr. Yao testified that Ms. O’Connell did not need one to one
supervision in the hospital environment but she was at risk of wandering and
she did at times get lost in the centre.

[18]       
With respect to Ms. O’Connell’s physical injuries, she was stable
while at GF Strong.  She underwent therapy five days a week.  She had
difficulty retaining and applying new information.  She was calmer and more
cooperative when family members were present.  She was eventually able to go
home in the evenings and return for her rehabilitation during the day.  It was
then determined that Ms. O’Connell should continue her rehabilitation in
her home environment with support from an occupational therapist and
supervision by her family.

Progression at home

[19]       
When she first came home in April 2008, Ms. O’Connell was very
dependent.  Mr. O’Connell testified that there was nothing she could do by
herself.  She had balance problems, which made it necessary for him to install
handrails outside the house and safety rails inside.  He said that he had no
confidence that she could manage stairs on her own. He saw her as a child:

‑ the reason I say that is
because I had to speak to her with encouragement. Two, there was no sense of motivation
for her to do anything. … I was indeed a hundred percent responsible for her.
… there was no thing that she would actually go and do by herself. There was
no motivation unless it was something like going to the washroom.

[20]       
Mr. O’Connell also described his wife as exhibiting “liberal
mannerisms” and being inclined to verbalize situations.  She was gregarious and
affectionate with anyone and said whatever came into her mind. She used
language he had never heard from her before: “I had no idea
what was going to come out of her mouth. There was no logic for anything.” 
Daniel O’Connell described her as “not discriminating about how she behaves
with people” but the disinhibited behavior was more pronounced in the earlier
days.

[21]       
As I review more thoroughly below, Ms. O’Connell initially received
rehabilitation support from an occupational therapist to assist her with
cognitive retraining and from a rehabilitation aid to assist her with physical
exercise and community integration.  She also received home care support to
assist with housekeeping.  All of these supports were discontinued in 2009,
primarily because Ms. O’Connell did not understand what these workers were
doing, became distressed, and was more comfortable having her husband care for
her.

[22]       
Mr. O’Connell has since been his wife’s primary caregiver in all
aspects.  He has been very devoted to her and has taken steps to keep her as
active and involved in daily living as he can. He began walking with her every
day.  He said that she was able to walk for about a mile at first, and when she
became tired he would link arms with her or she would rest.  He described some
problems with her vision while she was walking as he observed that she walked
into obvious things like tree branches.  Now, they walk on average three times
a week and while Ms. O’Connell can walk farther, she still needs to take
breaks along the way. More recently, they joined a walking club together. In
addition to walking, Ms. O’Connell has participated in a form of tai chi
and yoga.

[23]       
Mr. O’Connell has also attempted to reintroduce Ms. O’Connell to
cooking, which, he said, is a long term process.  Ms. O’Connell is
now able to do fairly simple tasks, such as make tea, heat things up in the
microwave, follow instructions on a package, make salad, and prepare vegetables
for cooking.  Mr. O’Connell has to give her clear directions about what food
is going to be prepared.  He is concerned about her use of the gas stove, as
she apparently has little or no sense of smell and she has turned the gas on
without lighting the flame, and on one occasion she left a pot on the stove,
letting the contents burn.

[24]       
Ms. O’Connell participates to some extent in housekeeping
and grocery shopping but she needs repetitive cueing from her husband.  She can
do some things on her own, such as load and unload the dishwasher and iron
clothing. Mr. O’Connell testified that his wife is physically able to do
housework but is not motivated, and will not do anything unless he specifically
asks her. He said that they do very little housework together now. He also said
that Ms. O’Connell is not able to do the grocery shopping on her own and
gets confused.  He has developed strategies for making this activity less
stressful, such as going either early in the morning or late at night when the
store is not crowded.

[25]       
Mr. O’Connell does the gardening and his wife participates to a limited
extent.  He testified that she takes an interest in what he is doing and comes
out and watches him, but rarely participates:

Every now and
again I would say I’m cleaning up the flower beds or I would put the items to
one side. Sometimes she would see them there and pick them up and put them in a
container, but by and large she’s quite happy just to watch.

[26]       
Other witnesses each observed Ms. O’Connell in the garden at various,
although limited times, watching her husband do the gardening.  Daniel O’Connell
said that his mother does not seem to have a lot of interest in gardening
anymore.

[27]       
Ms. O’Connell is able to independently perform activities of daily
living such as toileting, bathing, showering, dressing and grooming. However,
she lacks judgment about dressing and has been observed unkempt, wearing the
same clothes over and over or wearing clothing that is inappropriate for the
weather.  She is also able to take medication on her own, often without being
prompted, provided they are placed in a visible container beside a clock. 
However, she does forget on occasion, about once a week.

[28]       
Mr. O’Connell rarely leaves his wife alone.  He does so for periods
of up to 2 1/2 hours when he goes running, about three times a week. When
he goes out, he makes sure that he writes on a board the time he is expected to
be home. If he is late, Ms. O’Connell will call him on his cell phone.

[29]       
Information contained in progress reports prepared by the occupational
therapists who were involved with Ms. O’Connell is consistent with Mr. O‘Connell’s
evidence about the things his wife was able to so in the first year or so after
she came home.  These reports show that while Ms. O’Connell is independent
with her personal activities, such as bathing and dressing, she requires
supervision and assistance in respect of most aspects of daily living.

Pre-existing conditions

[30]       
Ms. O’Connell has a history of benign Multiple Sclerosis (MS),
since 1997, and had been diagnosed with optic nerve neuritis.  Her MS symptoms
were very mild and limited to intermittent numbness and tingling in her
extremities.  None of these symptoms interfered with her activities.  She also
had Graves’ disease and has been, and continues to be, treated with thyroid
replacement therapy.

[31]       
There is some evidence that Ms. O‘Connell was diagnosed with a
serious left traumatic optic neuropathy that reduced her visual acuity on the
left side, apparently related to her MS.  However, there is no evidence
that this had any bearing on her disabilities arising from the accident.  Mr. O’Connell
described vision problems, particularly when outdoors. There is no evidence
that this problem stems from the left traumatic optic neuropathy.  Dr. Yao
reported that Ms. O’Connell had sufficient vision to be able to read and
navigate in her physical environment but her “visual perceptual information
processing was impaired as a result of her brain injury.”

[32]       
Dr. Lorne Kastrukoff, a neurologist, assessed Ms. O’Connell in
September 2009.  He noted symptoms of occasional headaches, decreased vision in
the left eye, problems with balance, and intermittent numbness and parasthesias
in the lower limbs. It was his opinion that Ms. O’Connell’s neurological
problems, including her cognitive dysfunction, problems with balance, and
intermittent numbness and parasthesias in the lower limbs are the result of the
head trauma suffered in the accident, and not the result of her MS.  This
opinion was not challenged and Dr. Kastrukoff was not called to testify.

Medical opinion and prognosis

Brain injury

[33]       
Dr. Yao described Ms. O’Connell’s symptoms of cognitive
dysfunction at the time she was discharged from GF Strong in April 2008:

Ms. O’Connell clearly sustained a serious traumatic
brain injury as a result of her accident.  Her initial GCS, period of post-traumatic
amnesia and subsequent cognitive changes are all indications of significant
brain injury.  Her cognitive deficits have persisted for at least 5 months
after her accident and are affecting her ability to function on a daily basis.
She particularly struggles with orientation, especially in unfamiliar
environments, and has problem-solving difficulties.

Her executive thinking skills are
persistently impaired.  Her MOCA score improved slightly from 13/30 on
admission to 18/30 on April 11, 2008, mostly in the area of attention.  She
continued to have deficits in frontal lobe function, short term memory and
orientation.

[34]       
Dr. Yao explained that gradual improvements in cognitive function may
be expected over approximately two years post-injury and there is usually a
period of greater recovery within the first four to six months.  Her prognosis
in April 2008 was as follows:

Ms. O’Connell’s impairments
have persisted at least five months post injury.  When taking into
consideration her age and pre-existing conditions of multiple sclerosis and
Grave’s disease, it is my opinion that her prognosis for complete resolution of
symptoms is very guarded.  She will likely still experience some cognitive
improvements that may translate into better functional independence over the
next 12 to 18 months, but it is probable that she will be left with permanent
deficits in her executive functions and memory to the extent of preventing her
from full independent living.

[35]       
Ms. O’Connell did improve to some extent over the following two
years but she continues to have significant cognitive difficulties.  Her family
doctor, Amrish Joshi, has continued to follow her.  In June 2009, he described Ms. O’Connell
as being aware of the deficits in her cognitive function, noting that she said
she found it difficult to concentrate with ongoing short term memory loss and
appeared aware that she did not have the ability to return to work.

[36]       
Dr. Donald Read, Ph.D. prepared a neuropsychological assessment of Ms. O’Connell
in November 2009.  He interviewed Ms. O’Connell in the presence of her
husband and he subsequently interviewed Mr. O’Connell on his own. Mr. O’Connell
also completed a questionnaire about the post-injury changes in his wife, which
revealed significant changes such as decreased activity and enthusiasm
(increased apathy), decreased self-awareness and self-monitoring abilities
(disinhibition), and poorer organization, reasoning and memory (decreased
executive function).

[37]       
 In addition to observing Ms. O’Connell’s behaviour, Dr. Read performed
a number of tests.  He described her as “pleasant, cooperative and socially
appropriate” with mild word finding difficulties during the interview and one
of the tests:

She did not appear to have any
significant difficulties understanding or responding appropriately to
questions, but she had difficulty understanding some test instructions during
the administration of the neuropsychological tests.  She was eventually able to
understand all the instructions after they were repeated and rephrased.

[38]       
The test results showed that Ms. O’Connell’s level of verbal
intelligence was in the Average range (50th percentile) and her other cognitive
abilities were in the average range for someone of her age and education except
for impairments in the following areas:

Speed of processing new information

Verbal fluency

Word-finding

Verbal learning and verbal memory

Abstract reasoning

Nonverbal reasoning

Visual nonverbal memory

Manual dexterity

[39]       
Dr. Read concluded that Ms. O’Connell’s traumatic brain injury
“has had devastating effects on many areas of her cognitive functioning”:

The test results clearly show a
relative sparing of Ms. O’Connell’s verbal reasoning and reading
abilities: her performance on measures of verbal reasoning ability was
consistently in the upper half of the average range, and her reading
comprehension for single sentences was equivalent to that of a high school
graduate.  These results are consistent with her education and her work
history.  In marked contrast, there were severe impairments in her spelling,
verbal fluency, word finding, verbal learning, and verbal memory abilities. Her
nonverbal abilities were all impaired to some degree: there were moderate
impairments of her visual nonverbal reasoning abilities and severe impairments
of her visual-perceptual and visual memory abilities.  Her speed of processing
new information was extremely slow and her manual dexterity was moderately
impaired with each hand.  In addition it was clear that Ms. O’Connell had
significant problems with her colour vision in that she was unable to
discriminate reliably between coloured squares of green and blue.  She was
completely unable to do one test of visual sustained attention, and repeatedly
demonstrated that her visual scanning abilities are quite impaired.  Although
there has been some improvement in Ms. O’Connell’s verbal reasoning and
verbal comprehension abilities in the two years since the November 27, 2007
motor vehicle accident she is left with significant residual impairments in
most other areas of her cognitive functioning.

[40]       
It was Dr. Read’s opinion that Ms. O’Connell “will more likely
than not continue to demonstrate moderate to severe impairments in the
above-mentioned areas of her cognitive functioning for the foreseeable future.”

[41]       
Dr. Read also noted Ms. O’Connell’s very limited awareness of
the extent of her cognitive impairments beyond difficulties with concentration
and memory.

[42]       
In a May 2010 report, Dr. Underwood stated that Ms. O’Connell

…continues to have significant
difficulties with memory, orientation and visual-spatial difficulties.  She
continues to have decreased initiation and requires cueing.  She has become
increasingly dependent on her husband.  She allows her husband to leave her for
only brief periods of time.

[43]       
It was Dr. Underwood’s opinion that Ms. O’Connell will not
have any further improvements and that her cognitive deficits and poor insight
into them makes her permanently disabled from any occupation and unable to live
independently:

Her poor insight into her
deficits makes her at risk if unsupervised.  She continues to have evidence of
decreased smell, which makes her at risk in emergency situations such as a fire
or gas leak.  She continues to have some evidence of mild left hemiplegia as
well as decreased balance with a broad based gait.

[44]       
Ms. O’Connell is also at an increased risk of developing seizures,
dementia and delirium should she become ill.  Dr. Underwood explained that
individuals with cognitive deficits such as Ms. O’Connell’s lose
compensatory strategies when they become ill.

[45]       
Dr. Underwood’s prognosis was consistent with that of Dr. Gabriel
Hirsch, also a physical medicine and rehabilitation specialist, the only
witness called by the defendant. Dr. Hirsch stated that Ms. O’Connell
has been left with “a profound cognitive impairment due to the severe brain
injury” and as a result she remains dependent in instrumental activities of
daily living, requiring supervision and direction.  He agreed that there is no
potential for Ms. O’Connell to make any further functional gains and that
she was at some risk for seizures and dementia. He also said that she will be
susceptible to greater injury if she suffers any further head trauma.

[46]       
Ms. O’Connell does not have any psychiatric conditions, such as
depression or anxiety, but she has developed a personality change.  In
September 2009, she was assessed by Dr. Stephen Anderson, a psychiatrist.
He described her personality change as including:

reduced insight and judgment,
reduced decision-making ability, immaturity, decreased energy, disinhibition
(e.g. blurting things out inappropriately), apathy, emotional blunting,
decreased interests (e.g. regarding current events), self-centeredness and
reclusiveness.

[47]       
The evidence of Ms. O’Connell’s family and friends confirmed that
she is a much different person now than she was before the accident. Their
descriptions of her behaviour are entirely consistent with the changes noted by
Dr. Anderson.

[48]       
Dr. Anderson explained that personality changes secondary to brain
injury are usually resistant to treatment and the passage of time.  This has
placed some strain on Ms. O’Connell’s relationship with her husband,
although the marriage has remained stable.  Dr. Anderson noted, and this
was confirmed by the evidence, that Mr. O’Connell is committed to caring
for his wife despite her personality changes.

[49]       
Ms. O’Connell does not suffer from depression or anxiety.  Dr. Anderson
explained that this was due to her limited insight into the nature of her
deficits.  He described her level of insight when he saw her as “very minimal”;
she was aware she had a brain injury “but that’s about the extent of it.”

Physical injuries

[50]       
Ms. O‘Connell recovered well from her physical injuries, but she
has some residual problems related to the fracture of her right femur.

[51]       
Dr. Trevor Stone was the orthopaedic surgeon who treated Ms.
O’Connell.  Dr. Stone was of the view that Ms. O’Connell had made a
full, functional and satisfactory recovery from her orthopaedic injuries.  However,
in her right thigh she has heterotopic ossification, which is bone developing
where it is normally not present. This can cause pain, stiffness in the joint
and decreased sensation, requiring further surgery and treatment.  Unfortunately,
there is a high probability of recurrence after surgery, about 30%, which is
considered a high failure rate.

[52]       
In April 2008, when Dr. Stone last saw Ms. O’Connell, she was not
complaining of any symptoms of heterotopic ossification but she was left with
somewhat decreased motion in her hip and an abnormal gait.

[53]       
Dr. Joshi saw Ms. O’Connell after her discharge from GF Strong
and generally monitored her progression.  In November 2008 he noted complaints
of clicking in the region of the right hip, which seemed to have subsided by
the following month.  However, in December Ms. O’Connell was complaining
of pain in her right knee.  By June 2009 he noted that she claimed to be
feeling a lot better physically and was going to the gym for light workouts. 
There were no further complaints of pain in the right hip or knee.

[54]       
Dr. Underwood described Ms. O’Connell to have a broad-based
gait as well as some balance difficulties attributed to both her orthopaedic
and brain injuries. In May 2010 she described some functional limitations in Ms. O’Connell’s
right lower extremity:

She continues to be limited in
the duration which she can ambulate, as reported by her husband.  She has pain
when her hip is flexed beyond 90 degrees.  She was noted on physical
examination to have a right lower extremity longer than that of the left.  This
may allow greater clearance of Ms. O’Connell’s left lower extremity.  Her
right foot is noted to be inverted and she tends to limp on her right lower
extremity.

[55]       
On this basis, Dr. Underwood opined that Ms. O’Connell is
partially disabled as a result of the fracture to her right femur.

[56]       
Both Dr. Underwood and Dr. Hirsch were of the view that Ms. O’Connell
is also at increased risk of developing degenerative changes.  Dr. Underwood
attributed this to all of the fractures suffered.  Dr. Hirsch was more
specific, stating that Ms. O’Connell is at risk of developing
post-traumatic degenerative arthritis with respect to the neck, right ankle and
left knee fractures.  The symptoms associated with this would include pain,
stiffness and reduced range of motion, and “if of sufficient intensity, would
probably negatively impact Ms. O’Connell’s weight-bearing activities
including standing, walking, going up and down stairs, kneeling, and
squatting.” He said that this would not likely occur within 5 to 10 years from
the time of the accident.

Findings and conclusions

[57]       
The evidence about Ms. O’Connell’s injuries was consistent.  I
found all of the expert evidence to be credible and reliable within the scope
of each witness’s expertise.  The lay witnesses were equally credible and
reliable, particularly Mr. O’Connell, who was quite understated in his
descriptions of his wife and the effects of her injuries on their lives.

[58]       
Ms. O’Connell’s traumatic brain injury has left her with permanent
cognitive deficits in the executive functioning aspects of her brain, such that
she is unable to plan, organize and reason. Dr. Read aptly described Ms. O’Connell
as “an island of competence surrounded by a sea of incompetence”, meaning that
her average verbal reasoning abilities are surrounded by her lack of executive
and planning abilities.  Dr. Hirsch described her as “one of the walking
wounded”: her social skills are intact and she looks fine on the surface, but
underneath is a person who is not able to look after her own needs.  In
addition, Ms. O’Connell’s personality changes are quite profound.  She is
no longer a person with normal emotional affect.

[59]       
Ms. O’Connell has very little insight into the extent of her
cognitive dysfunction.  While Dr. Joshi described her as being aware, or
“fully aware”, he did not assess this in depth.  The weight of the expert
medical opinion, as well as the observations of the lay witnesses, is that Ms. O’Connell’s
insight is minimal.  While she seems to be aware that she has memory problems
and that she is no longer able to work, she has no idea of the true extent of
these problems.

[60]       
The effects of Ms. O’Connell’s brain injury are permanent and the
medical evidence clearly shows that she has made all of the progress she is
going to make.  Her cognitive function will neither improve nor deteriorate. 
However, she is at an increased risk of having seizures, delirium when ill, a
mild increased risk of developing dementia and she will be susceptible to
greater injury if she were to suffer another head trauma in the future.

[61]       
While Ms. O’Connell made a good recovery from her physical injuries,
this was accomplished with considerable rehabilitation efforts.  She continues
to have stiffness and a decreased range of movement in her right hip as a
result of heterotopic ossification and may require surgery and further
treatment in the future.  She has reduced energy and is not able to walk or
hike as she did before.  In addition, she is at risk of further degenerative
changes.

Non-pecuniary damages

[62]       
The essential principle in assessing damages is to restore the plaintiff,
as far as money can do so, to the position she would have been in before the accident. 
This involves an assessment of the plaintiff’s original position, which
includes pre-existing conditions: see Athey v. Leonati, [1996] 3 S.C.R.
458.  The defendants have not taken the position, nor is there any evidence,
that any of Ms. O’Connell’s pre-existing medical problems, particularly
her diagnosis of MS, should be taken into account in assessing her damages.

[63]       
Ms. O’Connell has clearly suffered extremely serious injuries. The
cognitive impairments and personality changes as a result of her brain injury are
the most significant and have had an enormous effect on her life.

[64]       
Ms. O’Connell was an active, intelligent, independent and highly
functioning person before she was injured.  She is now unable to enjoy most of
the things that were important to her.  She is unable to work, unable to
meaningfully relate to her family and friends, unable to plan or organize
things, and unable to live independently.

[65]       
Her family describe her as still kind and loving, but essentially devoid
of emotion, more child-like and more self-involved. For example, when her
mother passed away in 2008, she had little to no emotional response, and she
shows the same affection for strangers as she does for family and close
friends.  Her husband also describes her as needing constant cueing and
supervision for all but the most basic personal tasks. All of the descriptions
of Ms. O’Connell’s present behaviour by the lay witnesses are consistent
with the medical evidence.

[66]       
Clearly, there has been a dramatic change in her level of functioning. 
The brain injury has left her seriously impaired in many important aspects. 
Although she is capable of carrying out most “activities of daily living” on
her own, she requires assistance with “instrumental activities of daily
living”, such as cooking, managing a household, and all outdoor activities. 
She is not employable and not capable of managing her financial affairs.

[67]       
Fortunately, due to her limited insight, Ms. O’Connell remains
cheerful and appears to be reasonably content.  While she is somewhat
disinhibited, her general behaviour is outwardly socially appropriate and she
does not exhibit emotional problems, other than some anxiety when her husband
is not present.

[68]       
The plaintiff seeks an award for non-pecuniary damages in the amount of $333,000,
which is equivalent to the rough upper limit established in Andrews v. Grand
and Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. School District
57, [1978] 2 S.C.R. 267; and Arnold v. Teno, [1978] 2 S.C.R. 287. 
The defendant says that this amount is too high and that Ms. O’Connell is
entitled to an award in the range of $200,000.

[69]       
 For the plaintiff, Mr. Baker submitted that in cases where a
plaintiff has suffered severe injuries, there is no basis for making fine
distinctions between different types of injuries.  He relies on Blackstock
v. Patterson Estate (1982), 35 B.C.L.R. 231 (C.A.), where the Court of
Appeal upheld the trial judge’s award of the upper limit for injuries that were
considered to be similar to those in Teno.  After referring to Lindal
v. Lindal, [1981] 2 S.C.R. 629, where Dickson J. (as he then was) confirmed
that injuries suffered by a plaintiff did not have to be precisely identical to
those of the plaintiffs in the trilogy, the court stated at pp. 237-38:

Once it was determined that the
plaintiffs suffered severe personal injuries the court concluded as a matter of
policy that the limit for non-pecuniary damages should be fixed at $100,000.00.
This conclusion was not based on the view that the awards made by the lower
courts in the trilogy cases were excessive or that there was no distinction
between the cases, but was based on the premise that in the case of all
"severely injured plaintiffs", in order to avoid extravagant claims,
an upper limit of $100,000.00 should be imposed. It follows, that even if the
respondent’s injuries could be said to be different from or not quite as severe
as those suffered by the plaintiffs in the trilogy cases, her injuries were
found by the trial judge to be "devastating", and, therefore, fell
within the $100,000 category fixed in Lindal and the trilogy cases.

[70]       
The reference to “severe personal injuries” clearly means injuries that
are devastating or catastrophic.  This is the language used by Hall J.A. in Brimacombe
v. Mathews, 2001 BCCA 206 at para. 243:

In my view, the principle of the
rough upper limit was enunciated to meet situations such as we have in the
instant case. A trial court faced with a catastrophically injured plaintiff
could be placed in the difficult and invidious position of endeavouring to draw
what, in many cases, might be subtle distinctions between degrees of
impairment, consciousness of and seriousness of catastrophic injuries. If a
plaintiff is found by a court to be catastrophically injured as a result of
tortious action, the Supreme Court of Canada, in the applicable authorities,
has, in my opinion, decided such an individual should be entitled to a monetary
award of non-pecuniary damages that will not bankrupt society but that will, to
the limited degree possible, provide a fund of money to enhance the situation
of that severely injured plaintiff. The rough upper limit is, rather like a
governor on an engine, a device that limits what otherwise could be an
unlimited sum of damages. Given the policy decision of the Supreme Court of
Canada, I see nothing erroneous in a trial judge fixing the rough upper limit
as the appropriate sum to be awarded to a catastrophically injured plaintiff.

[71]       
In my view, what these cases say about the upper limit is that once a
finding is made that the plaintiff suffered a catastrophic injury, it is not
proper to compare such injuries with those in Andrews and the other
cases for the purpose of making a comparative award.

[72]       
Mr. Baker referred me to several cases where the upper limit has
been awarded.  In Spehar v. Beazley, 2002 BCSC 1104, aff’d 2004 BCCA
290, the plaintiff was 16 when she suffered a severe traumatic brain injury.  She
had widespread brain damage that affected her frontal, temporal and parietal
lobes and a variety of brain structures that regulate sensitivity to pain,
speed of cognitive processing, balance, fine motor skills and coordination. 
She had rapid mood swings, depression and angry outbursts.  She had significant
personality changes, was argumentative and frustrated.  Her behaviour
deteriorated and she began disappearing.  She fell under the influence of
people who used her in criminal activities.  One medical expert opined that
this was one of the most disappointing outcomes he had seen in traumatic brain
injury after a good physical recovery. At para. 33, the judge concluded:

Ms. Spehar has suffered a
severe traumatic brain injury. Everything about her is different. Her
cognitive, emotional and behavioural functioning have been devastated by the
brain injury. She has difficulties planning, organizing, initiating,
regulating, and monitoring her behaviour. She is distractible and has
difficulty following through with activities. She can be rude, impulsive, irritable,
easily angered, disrespectful, abusive, and aggressive. She is a difficult to
manage child in a woman’s body. She has lost what to many is one of the most
valuable aspects of being an adult human – the ability to have control over
one’s own life. Ms. Spehar knows this.

This award was upheld on appeal, the court concluding
that “by any measure” the injuries suffered were devastating.

[73]       
In Morrison v. Cormier Vegetation Control Ltd. (1998), 101
A.C.W.S. (3d) 512 (B.C.S.C.), the plaintiff was 20 years old when she suffered
one of the most severe forms of brain injury, which included damage to both
frontal lobes, the right temporal lobe and the right occipital lobe.  Her brain
function was seriously compromised and she had a number of serious mood, emotional,
psychological and behavioural abnormalities. She was sexually uninhibited and
her mood swings went from elation to despair.  The trial judge described her as
follows, at para. 53:

Ironically, while the plaintiff
presents as an attractive, normal, young woman, who is capable of walking,
talking and navigating many everyday activities, her case is all the more
tragic since she is daily out in the world in which she can only minimally
participate.  Her initial presentation, which to some degree masks the
degree of injury, allows her to initiate social relations, which for the most
part are doomed to failure.  Within a short period, she is either shunned
(by virtue of her aggressiveness, her temperamental outbursts or her social or
sexual disinhibition) or she is taken advantage of.  Her life, her range
of relationships and her career choices will forever be limited by the
limitations of her brain.  Her insight concerning her predicament is
limited but sufficient that she nevertheless understands her limitations and
experiences all of the frustration, despair and loneliness of her situation.

A full upper limit was considered appropriate in those
circumstances.

[74]       
The plaintiff in Boyd v. Harris, 2004 BCCA 146, suffered a spinal cord injury that left him
with constant pain in his neck and shoulder, super sensitivity in his hands and
difficulty walking. He was able to live independently. A jury award at the
upper limit was upheld on appeal on the basis that there was evidence before
the jury that reasonably supported their view of the plaintiff’s situation.

[75]       
For the defendants, Mr. Grady referred me to several cases where
the awards were less than the upper limit in circumstances that he says are
comparable to those of Ms. O’Connell.

[76]       
In Claiter v. Rose et al., 2004 BCSC 50, a 53 year old plaintiff
suffered traumatic brain injury and a fracture of the C2 vertebrae.  He recovered
quite well from his neck injury but had severe impairment and frontal lobe
dysfunction, with weak memory, deficits of more complex attention, and
confusion with an abundance of stimuli.  He also had personality problems,
which included impulsiveness, excess dependency, poor judgment,
absentmindedness, perplexity, and diminished organization.  He had changed from
being a successful, autonomous businessman to being dependent on his wife and
on a structured environment. His wife left him alone for short periods of time
but always left him a note to remind him that she would be back.

[77]       
The plaintiff could do some things for himself. He was able to drive,
but he had problems when alone.  He did some volunteer work at a basic level.
He was able to help with household chores when prompted and under supervision. 
He could make himself a snack but he could not make a sandwich.  The judge
described the plaintiff as “a child in many aspects of his functioning” and
also noted that he appeared to be relatively happy: “He is aware of changes in
his functioning and is sometimes frustrated but is relatively content.”

[78]       
Non-pecuniary damages were assessed at $175,000, which is equivalent to
about $195,000 today.

[79]       
Matthew v. Tattrie, 2009 BCSC 263, involved a plaintiff who was
19 years old when he suffered a severe head injury, including a skull fracture,
from an assault. He eventually underwent emergency neurosurgery to remove a
large subdural hematoma.  Ross J. found that the assault resulted in
significant and permanent changes in every aspect of his life.  He had been
left with deficits in memory, concentration and executive function.  His
strength and dexterity were impaired. He had a change in personality, poor
judgment and lack of insight into his limitations. He exhibited inappropriate
behaviour and had poor anger management and impulse control.  He could not live
independently without considerable assistance and was not employable in a
competitive environment. She awarded $200,000 for non-pecuniary damages.

[80]       
Finally, in Dionne v. Romanick, 2007 BCSC 436, $185,000 was
awarded to a plaintiff who was 54 years old when injured.  At para. 82, Gray
J. found that the plaintiff

suffered a moderate or severe
brain injury which has ended her ability to work and significantly affected her
ability to function independently.  She continues to be a remarkable and
likeable person, although her cognitive problems present challenges.  She
suffers daily pain in her head, neck, back and hips.  The hip pain is
probably unrelated to the accident.  She has reduced senses of hearing,
taste and smell.  Her personality is unchanged, although her behaviour
reflects her frustration with her cognitive problems.

[81]       
The amount of damages for pain and suffering is a question of fact.  The
award must be specific to the plaintiff and reasonable to both parties.  Factors
such as the age of the plaintiff, the nature of the injury, and the relative
severity and duration of pain, disability, emotional suffering and loss of
enjoyment of life should be considered: see Boyd at para. 42.

[82]       
While the brain injury Ms. O’Connell suffered had a profound effect
on her life, I do not think the effects on her were as devastating as those in Spehar
and Morrison. In those cases, the plaintiffs were young women who
suffered significant emotional and behavioural problems in addition to
permanent cognitive deficits.  I did not find Boyd to be particularly
helpful.  The injuries were quite different.  The Court of Appeal noted that
the jury’s award was generous and approached the “outer limits of what would be
acceptable” but was not persuaded that it was so excessive that it demonstrated
palpable and overriding error that would justify interference.

[83]       
While in none of the cases referred to me by Mr. Grady was there
any consideration of awarding damages at the upper limit, I found them quite
helpful, particularly Claiter and to a lesser extent, Matthew.

[84]       
Ms. O’Connell has lost the life she led before November 27, 2007. 
She lost the ability to live independently, she lost the ability to relate to
her loved ones in a meaningful way and she lost the ability to work at a job
she enjoyed.  While she appears to be relatively content, she has little
awareness of her condition and the quality of her life has been profoundly
diminished.  In my opinion, she is entitled to an award for non-pecuniary
damages in the amount of $275,000.

In trust claim

[85]       
The plaintiff makes an in trust claim for the value of the services Mr. O’Connell
has provided to care for her.  Mr. Baker quantified the value of this
claim at $150,000, based on what it would have cost to purchase these services
from a personal support worker.

[86]       
The defendants do not dispute that the plaintiff has a valid in trust
claim in relation to the care that Mr. O’Connell has provided.  They do
dispute the value of those services, which they characterize as generally
supervision, guidance and companionship rather than nursing or home support
services. Mr. Grady submitted that an award of $50,000 would be fair in
the circumstances.

[87]       
It is settled law that an in trust award may be made to a plaintiff in
trust for a family member, here a spouse, who is not named as a party to the
action.  In this case, this award is compensation to Mr. O’Connell for the
additional work he has done as a result of the impaired capacity of the
plaintiff to care for herself: see Bradley v. Bath, 2010 BCCA 10 at para. 43.

[88]       
The concept that housekeeping and other spousal services have economic
value was affirmed in Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.). 
Moreover, it is recognized that a plaintiff may recover damages for these kinds
of services whether or not she pays for them.  In Dykeman v. Porohowski,
2010 BCCA 36, Newbury J.A. stated at para. 28:

Since Kroeker, it has been
settled law in this province that "housekeeping and other spousal services
have economic value for which a claim by an injured party will lie even where
those services are replaced gratuitously from within the family." In Kroeker,
such recovery was allowed under the heading of ‘loss of future ability to
perform household tasks’, but obviously, damages for loss of such ability prior
to trial may also be properly claimed and recovered: see, e.g., McTavish v.
MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, per Huddart J.A.; West
v. Cotton (1995,) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell
v. Banman 2009 BCCA 484. … Such awards are colloquially referred to as
"in trust" even though it is the plaintiff who recovers them, and
British Columbia courts do not generally impose trust terms in their orders,
regarding the loss as that of the plaintiff: see Feng v. Graham (1988),
25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[89]       
There is no requirement that the services provided be of a professional
or paraprofessional nature to be compensable.  As L. Smith J. held in Frers
v. De Moulin, 2002 BCSC 408 at para. 210, “an ‘in trust’ award is
appropriate where a spouse performs duties which would otherwise have to be
performed by a paid worker”.

[90]       
In Brennan v. Singh (1999), 86 A.C.W.S. (3d) 537 (B.C.S.C.),
aff’d on other grounds 2000 BCCA 294, Harvey J. reviewed at para. 95 the
factors to be considered in assessing in trust claims:

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

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

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

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

[91]       
Mr. Grady submitted that while the allocation of household duties
has changed, Mr. O’Connell’s contribution did not change significantly, as
he and Ms. O’Connell have always shared these duties and Ms. O’Connell
is still able to assist with many of these tasks.  I disagree.  The evidence is
overwhelming that Ms. O‘Connell lacks motivation to do any of these things
and her ability to assist is predicated on Mr. O’Connell’s constant
reminders and cues.  Her participation in household duties is less of
assistance to Mr. O’Connell and more properly characterized as part of the
process of keeping her active and involved in day to day living.  In any event,
the plaintiff`s claim here is not for housekeeping services but for personal
care.

[92]       
I consider this case very different from King v. Klessens (1999),
88 A.C.W.S. (3d) 1010 (B.C.S.C.), a case relied on by Mr. Grady.  There,
the court declined to make an in trust award to a plaintiff who suffered a much
less severe brain injury and was still able to work.  The nature of his injury
brought about personality changes, which required his wife to make
accommodations and adjustments in their lifestyle.  These were found by the
trial judge to flow from the relationship of husband and wife.

[93]       
In this case, Ms. O’Connell’s injuries have resulted in many
changes that have required her husband to provide substantial personal care
services.  While Mr. O’Connell would have spent most of his time with his
wife in any event, the nature and quality of that time is considerably altered
and his role has changed from equal partner to caregiver. While he was not
required to provide nursing services, as in Brennan, I consider the care
Mr. O’Connell provided to go beyond bare supervision and guidance.

[94]       
When Ms. O’Connell was discharged from GF Strong in April 2008, she
was completely dependent on others, particularly her husband.  Since then she
has improved to some degree but she requires almost constant guidance and
supervision. She cannot go outdoors alone and she cannot be left alone at home
for more than a few hours at a time. While she has not yet had any major
accidents, I attribute this to the level of care that Mr. O’Connell has
provided.  Given her cognitive deficits, particularly her short term memory
problems, I find that it would be dangerous for her to be left alone for any
extended period of time. For all of her activities, including exercise and
housework, she needs cueing and guidance. Mr. O’Connell assumed full
responsibility for this care since about mid-2009.

[95]       
I find that most of the supervision and guidance Mr. O’Connell has
provided was over and above what would be expected from the marital
relationship.  Mr. Baker bases this claim on the value of what it would
cost a caregiver to provide the equivalent of about 6 hours of care on a daily
basis from the time of the accident at an hourly rate from $23.76 to $25. 
Although this includes the five months Ms. O’Connell was in hospital, the
evidence shows that Mr. O’Connell played a very important role in
assisting with her rehabilitation and overall, I consider this claim at $150,000
to be entirely reasonable.

Future care

[96]       
Future care costs are intended to compensate the plaintiff for an amount
which may reasonably be expected to be expended in putting her in the position she
would have been in if she had not been injured.  The principle of full
compensation for a pecuniary loss such as this is well established.  In Andrews,
Dickson J. (as he then was) stated at pp. 241-42:

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, within 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.

…there is no duty to mitigate,
in the sense of being forced to accept less than real loss.  There is a
duty to be reasonable.  There cannot be “complete” or “perfect” compensation. 
An award must be moderate and fair to both parties.  Clearly, compensation must
not be determined on the basis of sympathy, or compassion for the plight of the
injured person.  What is being sought is compensation, not retribution.  But in
a case like the present, where both Courts have favoured a home environment,
“reasonable” means reasonableness in what is to be provided in that home
environment.  It does not mean that [the plaintiff] must languish in an
institution which on all evidence is inappropriate for him.

[97]       
As the Supreme Court of Canada said in Krangle (Guardian ad litem of)
v. Brisco, 2002 SCC 9 at para. 21, “damages for cost of future care
are a matter of prediction.”  Because damages must be assessed once and
for all at the time of trial, I must “peer into the future” and fix these
damages as best I can. I must consider what care is likely to be in Ms. O’Connell’s
best interest and calculate the present cost of providing that care, and I may
take into account the contingency that the future may differ from what is
indicated by the evidence.  The award is “to reflect the reasonable or normal
expectations” of what Ms. O’Connell will require.

[98]       
In addition to being reasonable, these costs must be medically
justified: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at pp. 83-84. 
This does not mean that evidence of the care that the plaintiff requires must
be provided by a medical doctor; it may be provided by a rehabilitation expert:
Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2009
BCSC 494 at paras. 311-13; see also Jacobsen v. Nike Canada Ltd.
(1996), 133 D.L.R. (4th) 377 (S.C.).  However, the weight to be given to an
opinion on future care will depend on the extent to which recommendations for
things like psychological counselling and physiotherapy are supported by the
evidence of experts within the relevant field of expertise: see, for example, Frers,
at para. 191.

Life Care Plan

[99]       
To establish her future care needs, the plaintiff relies on a “Life Care
Plan” prepared by Elaine Sandor, an expert in rehabilitation counselling and
life care planning.  Ms. Sandor has had considerable experience in her
field, having worked as a rehabilitation counsellor and clinical services
manager since 1988.

[100]     The stated
overall purpose of the Life Care Plan is to ensure that Ms. O’Connell “is
able to maintain a quality of life which resembles, as closely as possible,
that which she would have led but for the injuries she sustained”.  More
specific objectives include access to supports to help Ms. O’Connell cope
on a daily basis and integrate into the community, and access to paid
assistance so that she does not have to rely on family or friends.

[101]    
Ms. Sandor compiled tables of costs, which are based on her
evaluation of Ms. O’Connell’s functional needs.  Relying on information
obtained in structured interviews with both Mr. and Ms. O’Connell, formal
measurements, medical records and reports, and further consultations with Dr. Read
and Dr. Anderson, Ms. Sandor determined that Ms. O’Connell requires
medical, rehabilitation and occupational therapies, rehabilitation support
services, personal care services, mobility equipment, housekeeping and home
maintenance services, transportation, and modified living arrangements.

[102]    
John Struthers, an economist, calculated the present value of all of Ms. Sandor’s
recommendations at $3,752,345, based on the need for 24 hour personal care and the
agreed upon life expectancy for Ms. O’Connell of 18.9 years.  He also
calculated the present value at $2,936,253, based on personal care at 18 hours
a day rather than 24.

[103]    
The defendants challenge many of Ms. Sandor’s recommendations on
the basis that the evidence does not support such needs or services and that
some of the services are unlikely to be used.  They presented no expert
evidence on this issue, nor did they suggest what amount would be appropriate
to award for the cost of future care.

[104]    
The most contentious issues involve the recommendations for occupational
therapy, rehabilitation support services and personal care services.

Future care costs likely to be incurred

[105]    
The defendants say that Ms. O’Connell is not likely to incur future
care costs for an occupational therapist or a rehabilitation support worker. Mr. Grady
relies on progress reports prepared by an occupational therapist who was
involved in Ms. O’Connell’s care in 2008 and early 2009.  He submitted
that this evidence shows that Ms. O’Connell made significant improvement
and by the summer of 2009 had no need for continued intervention and no desire
to have strangers in her home.

[106]    
The defendants also say that there is a complete absence of evidence that
either Mr. or Ms. O’Connell would submit to Ms. Sandor’s care
recommendations for occupational and rehabilitation therapy or extra personal
care or help in the home.  Mr. Grady argued that an award for future care
cannot be made where an expense is unlikely to be incurred, although he
concedes that Ms. O’Connell would require additional care should Mr. O’Connell
be unable or unwilling to care for her in the future.  His position, as I
understand it, is that any award for the future cost of personal care must be
reduced to take into account the fact that Mr. O’Connell is present in the
household to provide supervision and guidance and a contingency can be factored
in to address the possibility that he will at some point be unable or unwilling
to continue to provide this care.

[107]    
On behalf of the plaintiff, Mr. Baker says that the need for these
costs is supported by the medical evidence, particularly that of Dr. Underwood. 
He submitted that this evidence demonstrates a real and substantial possibility
that Ms. O’Connell will require these services in the future.  Moreover,
he argued that Mr. O’Connell’s role is to be disregarded in assessing the
care she will require as the law does not require him to provide such services.

[108]    
These submissions raise two issues. The first is whether the evidence
supports a finding that Ms. O’Connell, having been resistant to certain
services before, will be resistant in the future and thus unlikely to incur
such costs.  The second is whether Mr. O’Connell’s presence and role as Ms. O’Connell’s
caregiver is to be taken into account in assessing the need for future personal
care costs.

1.         Evidence of costs likely to be incurred

[109]    
There is evidence that Ms. O’Connell was resistant to services that
were recommended and initially provided to her after her discharge from GF
Strong.  According to an Initial Assessment Report by Nicole Perks, a
registered occupational therapist, Ms. O’Connell was to receive personal
care and homemaking assistance for up to eight hours a day, five days a week. 
However, she began with two days a week in order to facilitate a smooth
transition from the daily care Mr. O’Connell was providing.  In addition,
an occupational therapist was to assess her ongoing needs, coordinate further
rehabilitation services and “facilitate cognitive rehabilitation” and there
were to be kinesiology sessions to “provide a structured exercise program”.

[110]    
This report and four progress reports were entered in evidence as
business records.  The authors of these reports were not called as witnesses.  The
reports themselves state that they are provided “to inform relevant parties of
this client’s clinical status” and are “not intended for the purposes of
litigation”.

[111]    
I found this evidence of limited assistance in the absence of testimony explaining
the various observations and recommendations.  However, there is no dispute
that Ms. O’Connell received home care support and occupational and
rehabilitation services in 2008 and into 2009 and that these services were
discontinued primarily at the request of Mr. O’Connell.

[112]    
The progress reports indicate that Ms. O’Connell received
rehabilitation support from an occupational therapist to assist her with
cognitive retraining and from a rehabilitation aid to assist her with physical
exercise and community integration.  These services were provided about three
times a week, were gradually reduced and were then discontinued sometime in
mid-2009.  At the same time, the occupational therapist was requesting four to
five hours a week and later three hours a week to achieve specified goals.

[113]    
Ms. O’Connell apparently made some progress during this time but
she was confused about what these workers were doing.  Mr. O’Connell
testified that things did not go well with the home care support worker because
his wife had no idea why the worker was there and continually questioned this
in front of the worker.  With respect to the occupational therapist and the
rehabilitation aid, he testified:

‑ other than reading there was different game
activities being introduced that my wife had never participated in nor was she
interested in them. She made that quite clear that why do you bring something
here that I’ve already told you I don’t like because invariably somebody would
say we’re going to bring something here for you next time we come. So it was —
it was very much verbalized to the person.

Most noticeable thing would be
that their intention was to introduce her back to being active by means of
getting on a bus. That did not make any sense because for someone that could hardly
stand up properly or know where she was, something was trying to be introduced
she didn’t comprehend. This was a great source of concern to Pam. She used to
wake up in the middle of the night and ask me why they wanted to put her on a bus.

[114]     Ultimately,
Mr. O’Connell took over the role of caregiver and home care worker and
this has occupied him on a full time basis since these supports were
discontinued.  He said that it was causing his wife too much trauma to have
others perform these roles.

[115]    
Mr. Grady relied on Izony v. Weidlich, 2006 BCSC 1315 and Coulter
(Guardian ad litem) v. Leduc, 2005 BCCA 199.  In Coulter, the Court
of Appeal disallowed an award for the future costs of supervised living where
there was evidence that the plaintiff would not voluntarily live in a
supervised setting.  Counsel submitted that the future care award must be based
on what the plaintiff needed rather than what he would actually use.  At para. 85
the court held:

…This submission ignores the
fact that, apart from the compulsion of the probation order, Mr. Coulter
retains the legal capacity to choose his own destiny and an appropriate care
plan must accord due deference to his desire for independence, consistent with
his capacity.  Mr. Coulter has a committee for his estate but not his
person.  That legal status recognizes that he retains an important element
of independent volition.  … Whether or not Mr. Coulter will submit to
a particular care regime is a relevant consideration in this assessment, and
without it, determining what Mr. Coulter needs would at best be highly
speculative and at worst a futile exercise.

[116]    
In Izony, Masuhara J. declined to award some future care costs
where there was clear evidence that the plaintiff had expressed resistance to
using certain items or availing himself of services that were medically
recommended.  In doing so, he stated at para. 74 that future care costs
must be justified as reasonable “both in the sense of being medically required
and in the sense of being expenses that the plaintiff will, on the evidence, be
likely to incur”, referring generally to Krangle.

[117]    
The issue in Krangle was whether the plaintiffs were entitled to
be reimbursed for the cost of adult care for their disabled son in light of
findings by the trial judge that it was in the son’s best interests to move to
a publicly funded group home when he became an adult.  The court upheld
the trial judge’s award that disallowed the cost of adult care subject to a
contingency that benefits provided under legislation might not be available. It
was in this context that the court held that the plaintiffs were entitled to be
reimbursed only for losses they may reasonably be expected to incur on the
basis of the evidence and the law.

[118]    
In both Coulter and Izony there was clear evidence that
the plaintiff had not and would not in the future, submit to the services or
items recommended. In particular, the plaintiff in Coulter had entered a
supervised living facility only under the terms of a probation order and he was
adamant that he would not continue to do so of his own volition.

[119]    
In this case, the evidence does not indicate clear and informed
resistance to recommended services.  Rather, it shows that Ms. O’Connell was
distressed by the presence of the occupational therapist and rehabilitation
worker as she neither enjoyed nor understood some of the activities undertaken. 
The same distress is not evident in respect of the home care support worker but
Ms. O’Connell continually questioned why the worker was there.  It is
apparent that Ms. O’Connell is much more comfortable in the presence of
her husband.  It is also apparent, and I find, that Mr. O’Connell found
his wife’s reactions upsetting and decided to take over the role of caregiver
to reduce the distress for both of them.

[120]    
In my view, it does not necessarily follow that Ms. O’Connell is
unlikely to accept such services in the future based on her experience in the
first year following her injuries and the fact that these services were
discontinued.  Given her lack of insight, it is not surprising that she had
difficulties adapting to new people coming into her home offering services that
she did not comprehend.

[121]    
I do not consider it appropriate to draw an adverse inference, as
suggested by Mr. Grady, that if asked, Mr. O’Connell would have
testified that he would not submit to these recommendations. As I indicated
earlier, Mr. O’Connell was understated in his evidence and it was quite
obvious to me that he was very reluctant to complain or admit that he was
having difficulty providing continuous care to his wife.  Other witnesses
testified about their observations of his devotion to Ms. O’Connell.  Daniel
O’Connell testified that his father talked to him about the concept of
caregiver burnout.

[122]    
I am satisfied that the evidence, taken as a whole, does not support a
finding that the plaintiff will not in the future accept recommended services. 
If the medical need is established and the proper support is provided, I would expect
that Ms. O’Connell will be able to accept the recommended care, although
it may initially cause her some distress and will likely take her some time to
adapt to any changes.

[123]    
This is not to say that all of Ms. Sandor’s recommendations are
reasonable and supported by the evidence. Below, I review each of her
recommended care costs and assess whether the evidence establishes the required
medical need.

2.         Mr. O’Connell’s role

[124]    
I do not accept the defendants’ submission that an award for the cost of
future personal care must be reduced to take into account the role Mr. O’Connell
plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell
is entitled to be compensated for the cost of care that is medically required.
As Groves J. held in Cojocaru, the law does not permit the defendants to
pass off their responsibility to provide appropriate future care by suggesting
that Ms. O’Connell can and should rely on her husband to take care of her. 
A husband is not expected to care for his injured wife on a gratuitous basis:
see Andrews at p. 243.

[125]    
The same principle was expressed in Vana v. Tosta, [1968] S.C.R.
71, where one of the issues involved an award for the cost of future
housekeeping services.  The majority of the court stated at p. 75:

It is trite law that a wrongdoer
cannot claim the benefit of services donated to the injured party. In the
present case it amounts in my judgment to conscripting the mother and
mother-in-law to the services of the appellant and his children for the benefit
of the tortfeasor and any reduction of the award on this basis is and was an
error in principle.

[126]    
In McTavish v. MacGillivray, 2000 BCCA 164, the court was also
dealing with an award for the loss of housekeeping capacity, both past and
future, and interpreting and applying the principles set out in Kroeker v. Jansen.  At para. 43, Huddart J.A.
stated:

.. the majority in Kroeker
quite clearly decided that a reasonable award for the loss of the capacity to
do housework was appropriate whether that loss occurred before or after trial.
It was, in my view, equally clear that it mattered not whether replacement
services had been or would be hired.

[127]    
While Kroeker was restricted to housekeeping services and, as
Huddart J.A. noted, the court did not adopt the analogy with future care as a
general rule, it is my opinion that the same principle can be applied in the
circumstances of this case with respect to personal care services that may or
may not be hired in the future.

[128]    
Having said this, it is also my view that these principles do not
require that Mr. O’Connell’s presence in the home should be entirely
disregarded, as the plaintiff submitted.  While I agree that it must be assumed
that all of Ms. O’Connell’s medically required care is to be provided by
paid caregivers, I do not agree that the court must assume that the plaintiff
lives alone. I will come back to this when I review the recommendation for
personal care services.

3.         Assessment of the Life Care Plan

[129]    
I have assessed each recommendation and the basis for it, in the order
presented in the Life Care Plan and considering the evidence related to medical
need.  In general, I have found most of the major recommendations to be
reasonable and necessary to sustain Ms. O’Connell’s mental and physical
health.  Where I have found a service to be reasonable I have either allowed
the cost or included it in another service where there appears to be overlap.  Although
Ms. O’Connell has had difficulty in the past having a number of different
people assisting in her home, it is clear that her needs cannot be met in the
long term by only one individual.  I have
allowed most of the recommended costs for occupational therapy assessments, case
management, rehabilitation support services and a personal support worker but I
have reduced the number of individuals who should be involved in Ms.
O’Connell’s care.

1.         Medical needs and
rehabilitation therapies

1.1       Medical
practitioner and sub-specialty consults

[130]     Ms. Sandor
stated that Ms. O’Connell will have “above-average need for medical
monitoring and collaboration due to the complexity and chronic nature of her
traumatic injuries.”  It was her view that “collaborative consultations between
medical and rehabilitation professionals will result in extraordinary costs”
because such consultations are not funded through the provincial health care
system.  She relied on various comments by Dr. Underwood and Dr. Anderson
about monitoring and referrals to other specialists.

[131]     While this
is a very modest cost ($26 per year), there is no evidence that such costs will
be either necessary or incurred.  The comments by Dr. Underwood and Dr. Anderson
did not suggest a need for such consultations, nor was there any evidence about
whether such consultations would be funded under the medical services plan in
British Columbia.

1.2       Medications

[132]     The
recommendation for medication costs was based on the cost of Ms. O’Connell’s
post-injury requirement to take blood pressure medication.  There is no
evidence that this medication is related to Ms. O’Connell’s injuries. 
However, Ms. Sandor took into account that Ms. O’Connell’s
medications may change in the future, as she may require anti-depressants
should her mood deteriorate and she may require anti-inflammatories for the
heterotopic ossification in the right thigh.

[133]     As I
explain below, I find it unlikely that Ms. O’Connell will develop
sufficient insight that would result in depression.  However, there is in my
view a real possibility that her mood will deteriorate as she adapts to future
changes in her care and she may require medication to address this, as well as
for the physical problems in her right thigh.  This latter need was noted by
both Dr. Stone and Dr. Yao.

[134]     I find
this recommendation to be both modest and reasonable, as providing a basis from
which to determine future medication costs.

1.3       Psychological
services

[135]     Ms. Sandor
recommended that both Mr. and Ms. O’Connell have access to
psychological assessments and counselling in the future.  With respect to Mr. O’Connell’s
need, she relied on consultations with Dr. Anderson and Dr. Read
(about which neither of them testified), and Dr. Anderson’s comment that Mr. O’Connell
will be at risk of developing “caregiver burnout”.  I note, however, that Dr. Hirsch
thought that at some point, Mr. O’Connell may require supportive
counselling.

[136]     For Ms.
O’Connell, Ms. Sandor relied on Dr. Anderson’s view that over time,
he “anticipates that Ms. O’Connell will develop increased
insight/awareness of the ongoing nature of her impairment”.

[137]     Dr. Anderson
testified that Ms. O’Connell does not presently require any counselling;
in fact she is resistant to it.  This is because of her extremely limited
insight into her cognitive deficits.  While Dr. Anderson said that her
mood could deteriorate if in the future she develops increased insight, he did
not think she would ever develop insight into the full extent of her
difficulties.  Given the prognosis for this woman, it is unlikely that she will
ever require psychiatric or psychological counselling. Moreover, Dr. Read
has already conducted a psychological assessment of her and he made no
recommendations for future psychological counselling.

[138]     While I
don’t doubt that Mr. O’Connell is at risk of caregiver burnout, neither
counsel provided any authority for including such costs in Ms. O’Connell’s
future care claim. In any event, there is no evidence that Mr. O’Connell
would be prepared to undergo a psychological assessment or participate in
counselling.  The evidence was that he is a very private person who would be
very reluctant to confide in a counsellor.

[139]     I find
that these services are not medically required for Ms. O’Connell and
unlikely to be incurred for Mr. O’Connell.

1.4       Physical
therapy

[140]    
Ms. Sandor recommended that Ms. O’Connell have an annual
physiotherapy assessment and ongoing intervention and consultation with a
physiotherapist to develop, monitor and modify an exercise program.  She based
this on recommendations from Dr. Anderson who, she said, was of the view
that Ms. O’Connell should participate in a structured exercise regime to
promote overall fitness and reduce the risk of injury and deterioration.

[141]    
This hearsay evidence on which Ms. Sandor relied was not confirmed
in evidence at this trial.  This is not surprising, given that Dr. Anderson’s
area of expertise is psychiatry, not physical medicine and rehabilitation.

[142]    
There is evidence from Dr. Underwood that Ms. O’Connell should
exercise regularly and she recommended a water based program at least three
times a week, with supervision.

[143]    
While the residual effects from Ms. O’Connell’s physical injuries
are not significantly limiting, I agree that she needs to be kept active and
she needs someone to assist her to do this.  I do not agree with Ms. Sandor
that her exercise regime needs to be structured and developed by a
physiotherapist.  Dr. Underwood testified that any exercise program can be
simple. Mr. O’Connell has kept his wife active with various activities and
there is no suggestion that they have not been adequate.

[144]    
I find that there is no medical need for physiotherapy assessment and
intervention.

1.5       Occupational
therapy

[145]    
Ms. Sandor was of the view that there will be an ongoing need for occupational
therapy services to enable Ms. O’Connell “access to interventions designed
to achieve functional outcomes which promote health, a reasonable quality of
life, prevent further injury or disability and to develop and sustain the
highest possible level of independence and participation in day to day
activity.”  She based this in part on the medical opinions that Ms. O’Connell
will never be employable. She recommended annual assessments, three to five
treatment sessions per year and one hour per month for consultation with a
rehabilitation support worker and family to review strategies and programming. 
This latter recommendation was based again, on the hearsay recommendations she
received from Dr. Read and Dr. Anderson.

[146]    
The evidence shows that Ms. O’Connell is participating in
activities at home and in the community to a reasonable extent. I agree that some
occupational therapy assessments could assist Ms. O’Connell to continue
with this participation and perhaps enhance it.  While her cognitive function
is unlikely to improve, access to some occupational therapy services would, in
my view, go some distance in assisting her to sustain or possibly improve her
mental and physical health. Dr. Underwood recommended that Ms. O’Connell
be reassessed by an occupational therapist every two years, not annually as
recommended by Ms. Sandor.

[147]    
There is no evidence to support a need for on-going treatment sessions. 
I consider the interventions recommended of three to five sessions annually as
well as monthly consultations to be unnecessary.  Ms. Sandor herself
suggested that strategies recommended by the occupational therapist should be
implemented by a rehabilitation assistant.  I would, however, allow costs for
two hours of consultation after each assessment.

1.6       Case
manager services

[148]    
Ms. Sandor recommended a case manager to coordinate the provision
of appropriate attendant care services.  She also recommended that this person
be an occupational therapist, a rehabilitation counsellor or a nurse, with
expertise in working with individuals with brain injury, as he or she must
understand Ms. O’Connell’s cognitive impairment that affects her problem
solving, judgment, planning, initiation, memory and decision making.  This is a
role so far performed by Mr. O’Connell.  Ms. Sandor was of the view
that it is not reasonable to assume his availability and willingness to
continue in this role on an ongoing, long term basis.

[149]    
Ms. Sandor again relied on hearsay recommendations of Dr. Anderson
and Dr. Read regarding this recommendation. However, Dr. Hirsch
suggested that provision be made for a case worker should Mr. O’Connell
stop performing this role.

[150]    
I agree that this is a task that Mr. O’Connell should not be
expected to perform and a provision for this service is reasonable.  I do not
agree that the case manager must be an occupational therapist, rehabilitation
counsellor or nurse.  The person who provides this service must, however, know
Ms. O’Connell and understand that nature of her cognitive impairments.  It is
my view that this service can and should be provided by a personal care worker,
who will be the person who spends the most time with Ms. O’Connell.  It is also
my view that the recommended 15 to 18 hours per year is excessive and I would
not allow a separate cost for this.  Given the provision I am making for a
personal care worker, there should be sufficient time available for this person
to provide this service.

2.         Rehabilitation support services

2.1       Rehabilitation
support worker

[151]    
Ms. Sandor recommended that Ms. O’Connell have access to a
rehabilitation support worker who is trained “to work with the unique needs of
someone with traumatic brain injury and physical deficits.”  This person would

…facilitate participation in
social and recreational activities, regular participation in a prescribed
exercise program, participation in productive activity in the home, and
increased comprehension of the newspapers, magazines and/or books of Ms. O’Connell’s
choosing to increase her awareness of current news thereby increasing her
quality of life.

[152]    
She assessed Ms. O’Connell’s need as follows:

Ms. O’Connell reportedly
requires support and assistance to initiate and follow through on activity. 
She also needs help to break larger tasks down into its component parts.  She
gets disoriented easily and does not have sense of time.  As a result of her
ongoing impairments she is unable to drive, she no longer gardens … she no
longer works at her computer and she is unable to read a book or newspaper and
remember its contents

[153]    
She relied on Dr. Yao’s recommendation for “recreational therapy
services” to help Ms. O’Connell “explore appropriate activities around her
community.”  In her report, Dr. Yao stated that Ms. O’Connell

…should remain independent with
her ambulation. She should maintain her overall strength and balance by doing
regular physical exercises, either as a home-based program developed by a
physiotherapist or at a community centre.  Should she choose the latter, she
should have someone attend with her to help provide supervision.  Recreational
therapy services are recommended to help Ms. O’Connell explore appropriate
activities around her community.

[154]    
Ms. Sandor recommended this service three times a week for four
hour sessions, which would include an exercise program.  For this, she relied in
part on hearsay recommendations from Dr. Anderson and Dr. Read.  She
testified that her discussions with Drs. Anderson and Read would have focussed
on the amount of time required to ensure that Ms. O’Connell would be able
to develop a relationship with the worker and have sufficient repetition to
help her to remember what she has done.  Ms. Sandor also said that three
times a week is a standard amount of time for rehabilitation support.

[155]    
Again, I have concerns about Ms. Sandor’s reliance on Dr. Anderson
and Dr. Read, neither of whom gave evidence about this.  Nor do I consider
such recommendations within the scope of their expertise, although I appreciate
that both are qualified to assess what kind of repetition may be required for a
person with Ms. O’Connell’s cognitive deficits.  Dr. Hirsch did not
see the need for a rehabilitation support worker given the fact that Ms. O’Connell
does not have the potential to make any further functional gains.  He suggested
that a caregiver could provide sufficient direction to Ms. O’Connell with
respect to personal care and instrumental activities of daily living.

[156]     The
evidence establishes that it is very important for Ms. O’Connell’s mental
and physical health to participate in various social and recreational
activities, including a regular exercise program.  She clearly needs someone to
supervise and support her in these activities. This person must have sufficient
expertise to understand the nature of Ms. O’Connell’s cognitive deficits
and limitations and be able to work with her in a way that does not cause her
frustration or distress. I do not agree with Dr. Hirsch that a
caregiver would be able to provide sufficient assistance, as most of these are
activities beyond personal care and instrumental activities of daily living.  In
my view, provision for a rehabilitation support worker is reasonable and
supported by the evidence.

[157]     I consider
Ms. Sandor’s recommended frequency of three times a week to be reasonable. 
I note that the time recommended, with four hour sessions, exceeds considerably
the time similar services were provided to Ms. O’Connell in 2008 and 2009,
as indicated in the progress reports. However, these reports do not provide
reliable evidence of what may be needed in the future.  I consider the
recommended time to be reasonable given Ms. Sandor’s explanation and the
fact that it is to include the time Ms. O’Connell spends in an exercise
program.

[158]     I would,
however, reduce the number of consultations, as this person would consult
primarily with the personal support worker and the occupational therapist only
every other year.  I would allow consultations at an average of six hours per
year.

[159]     I would
also factor a small contingency of 10% to take into account the real
possibility that Ms. O’Connell’s need for this service may decrease as she
ages.

2.2       Health and
strength maintenance

[160]     The
recommendation for the costs of yoga classes and a gym membership are reasonable,
excellent and entirely consistent with the evidence.

3.         Personal care services

3.1       Home and
personal supports

[161]    
Ms. Sandor recommended that Ms. O’Connell have a personal support
worker for 24 hours per day (less time spent with a rehabilitation support
worker for 12 hours per week).  She relied on the medical opinions of Dr. Underwood,
Dr. Yao, Dr. Read and Dr. Anderson and assessed Ms. O’Connell’s
need as follows:

Ms. O’Connell presently requires intermittent cueing and
occasional assistance to initiate, sequence, and carry out a task to
completion. She often gets distracted and loses her place in the task, and she
requires cueing to redirect her back to the task.  Increased assistance is
required for unfamiliar or more complicated tasks.  Reportedly, if left on her own,
she is likely to sit and watch the floor; she would be unlikely to initiate
engagement in new activity on her own.  She remains at risk in her home and in
her community as a result of her reduced vision and her significant cognitive
impairment including substantially reduced insight, judgment, processing speed,
memory, problem solving, attention, planning, etc. As stated above and
confirmed in consultation with Dr. Anderson and Dr. Read, she will
continue to require assistance and supervision on a 24-hour basis to ensure her
safety, optimal participation in day to day activity and reasonable quality of
life.  If left on her own, she remains at increased risk as she would not
likely be able to respond appropriately to emergency situations.  As she ages, accelerated
cognitive and physical decline is anticipated, leading to an increasing need
for assistance of a physical nature.

With this support, it is expected
that she can more effectively participate in day to day tasks such as grocery
shopping, meal preparation, and laundry completion.

[162]    
There is ample evidence that Ms. O’Connell requires close to
24-hour supervision.

[163]    
According to Dr. Yao, Ms. O’Connell should be able to care for
herself (in terms of dressing, grooming, personal hygiene, feeding and basic mobility)
without assistance, as long as she is in a familiar environment, and she should
be able to be left alone in her home for at least a few hours at a time.  In
addition:

Ms. O’Connell will likely
need supervision on a permanent basis when outside, especially if the area is
unfamiliar to her.  She will need long term assistance from family members for
financial management beyond simple purchasing transactions. She will need to
have someone in the home with her when she is cooking in case she needs assistance
for unexpected situations, such as a stove fire. She will not be able to return
to driving and will need someone to accompany her when using public
transportation or private taxis.

[164]    
Dr. Underwood agreed that Ms. O’Connell can be left
unsupervised for only brief periods of time. It was her view that she will
require “almost 24-hour care” should Mr. O’Connell be unable to care for
her and that increased support will be likely as she gets older due to her
increased risks for reduced mobility and developing dementia and seizures.

[165]    
Again, I have concerns about Ms. Sandor’s reliance on hearsay consultations
with Dr. Read and Dr. Anderson.  Neither of them opined specifically
about whether Ms. O’Connell requires 24-hour care as defined by Ms. Sandor
but they both gave some evidence about the need for supervision.

[166]    
Dr. Read stated that Ms. O’Connell’s cognitive impairments, coupled
with her limited insight,

…continues to put her at risk of
injury if she is not monitored on a consistent basis while doing household
tasks such as cooking.  She would be lost both literally and figuratively if
she did not have the ongoing support and guidance of her husband.  Should
anything happen to Mr. O’Connell then Ms. O’Connell would need daily
monitoring and intervention to enable her to remain living in her own home.

[167]    
While Dr. Anderson was not qualified to give opinion evidence about
the kind of support Ms. O’Connell needed, he provided a general statement
in his report that “[p]atients who have had impairment in executive functioning
should not be left alone for any significant period of time.”

[168]    
Both of these statements are consistent with the evidence of Dr. Yao
and Dr. Underwood.  Moreover, all of the medical evidence is consistent
with the evidence of Mr. O’Connell in particular and the other lay
witnesses in general, as to Ms. O’Connell’s inability to function
independently.  Ms. O’Connell cannot live alone and as I have found, she
cannot be left alone at home for extended periods of time. However, the
supervision does not require that a personal care worker be present with Ms. O’Connell
at all times.  She can be left alone for several hours and there can be times
when the worker simply needs to be nearby.  This means that this worker will
have time to do other tasks, such as case manager services and the regular
housekeeping that Ms. O’Connell can no longer do on her own.

[169]    
Ms. Sandor’s recommendation takes no account of the fact that Ms. O’Connell
does not presently live alone or that Mr. O’Connell is providing her with
supervision on an almost constant basis. She testified that a 24-hour worker
was needed because Ms. O’Connell would not be able to respond to
emergencies during the night and it was her opinion that Mr. O’Connell
should not be required to be the 24-hour caregiver.

[170]    
As I indicated above, the law does not require Mr. O’Connell to
provide these services.  However, I do not agree that Mr. O’Connell’s
presence in the household can be completely ignored.  As long as he continues
to live with Ms. O’Connell and is capable, the evidence does not support a
need for a personal care worker to be present in the house during the night.  Ms. Sandor
agreed that it was not necessary for someone to be awake in the house at night,
which requires a more costly service.

[171]    
I am satisfied that the evidence supports provision for a personal care
worker on the basis of 16 hour care.  The cost for this care, calculated on the
basis of a regular hourly rate of $25.08 and $37.62 for statutory holidays,
less the time spent with the rehabilitation worker, is $133,826.88 per year.  I
consider this cost to be reasonable given the nature and extent of the services
that are required in this case.

[172]    
Dr. Hirsch opined that Ms. O’Connell’s needs may be met by one
or two “international home support workers”, which I assume could include a
live-in caregiver.  Ms. Sandor testified that the current cost for a live-in
caregiver in Surrey, based on 16 hours awake and 8 hours asleep, is based on a
daily rate of $300 to $350 and $450 to $525 for statutory holidays.  The annual
cost for live-in care, which does not take into account the time spent with the
rehabilitation worker, would therefore range from $110,850 to $129,325.  While
this service is somewhat less expensive than live-out 16 hour care, a live-in
caregiver is not required as long as Ms. O’Connell is living with her
husband.  This evidence shows that no contingency needs to be taken into
account in the event of Mr. O’Connell’s death or incapacity, as alternate,
appropriate live-in care can be provided at no additional cost.

3.2       Financial
manager

[173]     There is
no question that Ms. O’Connell will require someone to manage her
financial affairs in the event Mr. O’Connell is no longer able to do so.  On
the basis that this was generally Mr. O’Connell’s responsibility, Ms. Sandor
provided a cost of $175 per hour for professional financial management and $40
per hour for household budgeting and bill payments, to be required only in the
event Mr. O’Connell is not available.  She recommended household budgeting
for one hour per week, 48 weeks per year.  She made no recommendation regarding
the frequency of professional financial management. There is no evidence that Mr. O’Connell
uses these services now and there is no evidence on which I am able to make a
determination about specific need in the future.  However, I accept that Ms. O’Connell
will require some professional advice in the future as well as assistance with
household budgets and bill payments.

[174]     I would
allow an award for household financial management as recommended and for
professional management at four hours per year, but this would not begin
immediately.  The plaintiff adduced evidence that Mr. O’Connell, who is
now 65, has a life expectancy of 17.1 years.  I would anticipate that these services
will be needed sooner than this and I would allow for this cost to commence in
10 years.

4.         Mobility equipment and external
aids and devices

4.1       Household
equipment and ergonomic aids

[175]     Ms. Sandor
recommended that certain equipment be provided “to promote safety, reduce the
risk of injury, and generally assist accessibility with ageing.”  These include
long-handled gardening tools, grab bars for the shower and bath, and on a
gradual basis, a cane, a walker, a wheelchair and hip protectors.

[176]     Grab bars
have already been installed and there is no evidence that Ms. O’Connell requires
gardening tools.  She does not presently participate in active gardening, and
even if she did, there is no evidence that the household does not have long
handled tools.  There is no evidence that Ms. O’Connell will ever be
confined to a wheelchair, but I accept that she will likely require some
mobility aids in the future.  I consider the costs for a cane, a walker and hip
protectors to be reasonable.

4.2       Devices for
communication, organization and memory aids

[177]     The
recommendations for various devices for communication, organization and memory
aids are reasonable and supported by the evidence.

5.         Housekeeping, home maintenance
and handyman services

5.1       Housekeeping

[178]     Before her
injuries, Ms. O’Connell shared housekeeping with her husband.  Now, she
can no longer assist without supervision, prompting and cueing.  The provision
for housekeeping services to replace her participation is reasonable but it is
my view that these services can be provided by the personal care worker, given
my findings above, and there is no need for this additional cost.

5.2       Home
maintenance and handyman

[179]     Ms. Sandor
has provided costs to replace most of Ms. O’Connell’s former participation
in gardening and all of it at age 70.  While she again relied on a hearsay
recommendation by Dr. Anderson, I consider the need for these services to
be supported by the evidence of the lay witnesses and therefore justified and
reasonable.

6.         Transportation

[180]     Ms. O’Connell
can no longer drive and therefore the provision for the use of taxis to attend medical
appointments, occupational therapy assessments, grocery shopping and community
and recreational activities is justified. There is no basis to include a
transportation cost for occupational therapy interventions or to access a
psychologist.

7.         Living arrangements

[181]     Dr. Underwood
recommended that a wheelchair accessible, single level home be made available
to Ms. O’Connell in the future.  She based this on Ms. O’Connell having
increasing difficulties with mobility as she ages and having an increased risk
of falling due to her difficulties with balance. Based on this, Ms. Sandor
included a provision for a home modification assessment and moving costs.

[182]     Dr. Underwood
provided little basis for this recommendation.  While Ms. O’Connell may
have some increased risk of falling, she is not very different from the general
population in respect of ageing.  I do not consider this cost to be supported
by the evidence.

Contingencies

[183]     Contingencies
involve future hypothetical events, which are to be considered as long as they
are a real and substantial possibility: Athey v. Leonati at para. 27.

[184]     In Morrison,
Boyd J. applied a 15 per cent “positive” contingency to the total future care
award to account for evidence that the plaintiff may require additional care in
the future.  In Spehar, Koenigsberg J. did not apply any contingency
because she was of the view that the positive and negative contingencies
balanced each other out.

[185]     In this
case, I have provided a high level of support for Ms. O’Connell and I find
it unlikely that she will require additional care in the future.  Her cognitive
function is unlikely to change and the risks for degenerative and other
changes, as set out in the medical evidence, are small and unlikely to
necessitate any increase in the level of care.  On the other hand, with the
exception of rehabilitation support services, I do not see that there are any
contingencies that would decrease her overall level of care.  As I indicated
above, as Ms. O’Connell ages, it is a real possibility that she will not
need ongoing rehabilitation support to the extent provided in the award.  I
consider it appropriate to make an allowance for a 10 per cent negative
contingency for the costs of the rehabilitation support services.  I make no
allowance for either positive or negative contingencies for the other
components of future care costs.

Summary of future care costs

[186]     I have
disallowed costs for medical practitioner and sub-specialty consultations,
psychological services, physical therapy assessment and consultations, occupational
therapy interventions, some equipment and some transportation costs.

[187]     I have
attempted to streamline the services in a way that would require one or two
primary caregivers and a rehabilitation worker to provide the necessary
assistance to Ms. O’Connell on a regular basis.  I have included the costs
for a case manager and for housekeeping in personal care services and I have
reduced some of the costs for occupational therapy assessments and
consultations.  I have also delayed the start for payment of costs for financial
services.

[188]     I have
allowed the following future care costs:

* The present value amounts
have been reduced by a 10% negative contingency.

Summary of damages

[189]     Damages
are assessed as follows:

 1.         Non-pecuniary damages 
$275,000

 2.         In trust award 
$150,000

 3.         Cost of future care                           $2,258,592

 Total                                                               $2,683,592

[190]     The
parties agreed on the following damages:

 4.         Past loss of income 
$125,000

 5.         Future loss of income (capacity) 
$125,000

 6.         Special damages 
$5,000

[191]     The
application of a tax gross up, a management fee, court order interest and costs
were left to be addressed by counsel after this assessment of damages.

“Fisher J.”