IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120118

Docket: 44007

Registry:
Vernon

Between:

Robert
Ernest Jarmson

Plaintiff

And

Bret
W. Jacobsen

Defendant

Before:
The Honourable Mr. Justice Meiklem

Reasons for Judgment

INTRODUCTION

[1]            
At approximately 5 p.m. on July 27, 2008, Mr. Jarmson’s motorcycle
collided with the defendant’s car on Highway 6 near Edgewood, B.C., seriously
injuring Mr. Jarmson and his passenger, his 15 year old daughter, Lindsay. This
action concerns only Mr. Jarmson’s claims.

[2]            
The most significant issues at trial were liability and, if liability is
established, the quantum of damages to be awarded for the cost of future care
and loss of earning capacity. The wage component of Mr. Jarmson’s past loss of
income from his employment as an arts teacher in Dubai has been agreed upon. There
remain issues about income loss from freelance photography and as to the proper
treatment of job-related allowances. These also have an impact on the
assessment of loss of future earning capacity, but the main question to be
determined on that head of damages is how long Mr. Jarmson would have worked as
an arts teacher in the absence of the accident.

LIABILITY FOR THE ACCIDENT

[3]            
There is very little direct evidence as to exactly how the collision
between these two westbound vehicles occurred in clear daylight hours on a
straight, level and dry stretch of highway.

[4]            
The plaintiff’s submission is that the only reasonable conclusion on all
the evidence is that Mr. Jacobsen made an unsafe U-turn immediately into the
path of Mr. Jarmson’s motorcycle and is 100% at fault for the accident.

[5]            
The defendant submits that the plaintiff has failed to prove any
negligent act or omission by the defendant, and the case must be dismissed. The
defendant theorizes that while the defendant was accelerating to highway speed
his car was struck by the plaintiff’s motorcycle as the latter was attempting
to re-enter the westbound lane after attempting a pass.

[6]            
It is trite that the party asserting negligence must prove the facts
amounting to negligence on a balance of probabilities and that requires more
than simply establishing a more plausible theory than the opposing party. The
court must be in a position to find that the facts alleged by the plaintiff
are, more probably than not, correct.

[7]            
Mr. Jarmson has no recollection of the accident, or events immediately
preceding or following it, because of the head injury he suffered.

[8]            
The evidence supporting the plaintiff’s theory includes the following:

1.       The
direct evidence of Lindsay Jarmson that Mr. Jacobsen’s car turned in front of
them with insufficient time for her father to react, and  that she had not
perceived any clues of a pass being initiated, such as acceleration;

2.       The
evidence of Lori Ukkonen as to the extremely loud noise from the collision, and
as to the resting position of the defendant’s car perpendicular to the centre
line;

3.       The photographic evidence
of markings on the roadway;

4.       The
defendant’s utterances and behaviour following the accident.

[9]            
Mr. Jacobsen, uninjured but shaken, asserts that he has no recollection
other than that he had entered the highway from Inonoakin Road, (which joins
the highway from the south)  turned westward and was accelerating to highway
speed when he heard a bang and felt his car shake. He saw a girl sliding by him.
He sat in his car for a while, then got out and heard a girl yelling and
someone else moaning or screaming from over the bank (which is off the
eastbound side of the highway). Then he got back in his car and moved it off
the road and onto the westbound shoulder. He asserted that he did not recall
the position of his car on the road before he moved it. He testified that it
“came to him” to go to the home of acquaintances named Esperson to summon help
for the injured, and he started walking toward their place as fast as he could.
He walked eastward on the highway back to Inonoakin Road and down it a short
distance to its intersection with Langille Road and along the latter a short
distance when Mr. Esperson coincidentally came by and picked him up and took
him to the Esperson residence further down Langille Road.

[10]        
Mr. Jacobsen said he does not know why he did not stop for help at the
Backfire Cafe which is located on Highway 6 just 100 to 150 meters east of the
site of the collision and which he walked by on his way to the Espersons’
residence, which is many multiples of that distance away from the accident site.
He acknowledged that he had known the owner of the cafe for years from buying
hamburgers at her establishment which was the only fast food place in the area.

[11]        
The only other direct evidence about the collision itself came from
Lindsay Jarmson. She testified that as they came onto the long straight stretch
of the highway they were driving on the left side of the westbound lane. Without
perceiving any of the usual clues that they were passing anyone, such as
increased engine revs, she saw a white car ahead “hanging a sharp left or U-turn”,
and before she had time to say anything, they hit the car. She tumbled down the
road and ended up lying on the left side of the road. Despite having suffered a
fractured femur, she pulled out her cell phone to call 911, but did not get a
signal. She also remembers trying unsuccessfully to call her mother, who was
travelling in a car preceding her and her father. She said that a woman
approached her, as did the defendant, who had his hands on his head and was
swearing. The woman commented to the defendant about his profanity, and the
defendant said to Lindsay:  “You’re going to hate me for the rest of your
life.” She replied that it was OK as long as her father was OK. The defendant
turned and walked away.

[12]        
On cross-examination Lindsay Jarmson agreed that she was primarily
enjoying the view as they drove, rather than looking ahead. She is about 5’ 3”
tall and her father about 5’ 9’’. She said she saw the white car at about a
2-car length distance and angled pointing at about 10 o’clock on a clock face
relative to their straight ahead line of travel. She said she did not recall
telling Mr. Esperson on his subsequent arrival at the scene that: “We cut in
too early.”  (Erik Esperson later testified that she had said: “Dad cut in too
early.”)

[13]        
On cross-examination Lindsay Jarmson initially said the white car seemed
to be going slowly. She said she was not sure if it was less than 10 kph,
because she is not sure what 10 kph looks like. She was shown her statement to
police investigators given from a hospital bed at 1:30 p.m. on the day
following the accident, wherein she had stated that “I think he was making a U-turn,
cause he was going pretty fast as he turned…”. She then agreed that “fast”
was correct, but acknowledged she was unsure about the speed aspect. She said
that the one thing she was sure about was the angle of the car. In fairness to
Ms. Jarmson, it must be noted (by use of simple arithmetic) that if two car
lengths (taken at an estimated 6.5 metres per car) is a reasonably accurate
measure of the distance between the vehicles when she first noticed the car,
and the motorcycle was travelling at 90 kph (25 metres per second), her time
for observation prior to impact would have been approximately .5 of a second.
It is common sense that such a brief opportunity is unlikely to be sufficient
to allow a reliable estimate of speed, which includes a time dimension, but is
more likely sufficient to allow a reliable perception of position.

[14]        
Lori Ukkonen, the postmistress at nearby Edgewood, was at the Backfire
Cafe, together with her spouse, ordering food. She knows the defendant. She
testified that she had heard and seen a motorcycle as it came to the bottom of
the hill just east of Inonoakin Road and entered the straight stretch (that
commences just east of the cafe). It was travelling at a “normal speed, nothing
out of the ordinary”. She noted that the passenger was seated higher than the
driver as the motorcycle passed. As she turned back to ordering food, she heard
a “God awful bang” that sounded like someone hitting a brick wall and which she
said was so loud she will never forget it. She thought someone was dead, and
before looking out again she told the cafe owner to call the police. Her
spouse, who had first aid training, started walking down to the scene. Ms.
Ukkonen stepped outside the cafe and saw the defendant’s white car situated
cross-ways in the westbound lane, nearly perpendicular to the centre line, with
its front end at or near the centre line and its rear end over the fog line on
the right hand side of the westbound lane. Asked to describe how far off being
perpendicular, by reference to an imaginary clock face with 12 o’clock being
the centreline looking westward, she said just past 9 o’clock.

[15]        
Ms. Ukkonen later saw the defendant walking “wobbly”, staggering past
the cafe on the opposite side of the road. This evidence, together with Mr.
Jacobsen’s admission that he is an alcoholic, that he spent the prior evening
drinking at his parents’ place in Edgewood and consumed 6 to 12 beer, that he
has a conviction and driving suspension for impaired driving and refusal to
provide a breath sample, and that he immediately drank a beer on arrival at the
Esperson’s, raises the possibility of him driving while impaired. However, the
evidence as a whole does not adequately support that hypothesis and the
plaintiff did not seek such a finding.

[16]        
In addition to his quoted comment to Lindsay Jarmson, (which the
defendant did not deny, but said he did not recall making) I find that Mr. Jacobsen’s
behaviour and utterances in the aftermath of the accident are consistent with
at least a belief on his part that he was at fault in the accident. He kept
repeating to Erik Esperson that he thought he had killed someone. He did not
report the accident to ICBC, although he knew he was legally required to do so.
He made no claim against Mr. Jarmson or Jarmson’s insurer for the significant
damage to his car. The car was an older model Chrysler K car, but he had
recently purchased it for $1,000 and it was in good condition. His explanation
for that inaction was that he disliked ICBC because they had disbelieved him in
regard to a previous accident and had mistreated other people he knew. That
explanation makes no sense to me; if he believed Mr. Jarmson to be at fault,
his inaction would be a saving to ICBC at his own expense.

[17]        
Mr. Jacobsen’s manner of dealing with the evidence relating to the
position of the car was not to deny the evidence or try to explain it, but to
assert that he has no idea where his vehicle came to rest. While I acknowledge
the submission that Mr. Jacobsen did not try to concoct a story to explain how
his car came to a rest across the westbound lane, that is not necessarily an
indicator of his testimonial reliability. Considering that he apparently sat in
the car for a time after the collision, then got out of the car, then went back
to it to move it to the shoulder of the road, it is difficult to believe that
he has absolutely no recollection of its location and position relative to the
road, assuming that he was not impaired. It also strains credibility to accept
that it was only after he got to the Espersons that he was able to think
logically enough to realize he had been struck by a motorcycle, on the basis he
had noted that the injured girl lying on the road was wearing a motorcycle
helmet.

[18]        
Mr. Jacobsen was examined for discovery less than a month before the
opening day of trial, after he was belatedly located. He acknowledged at trial
that some of his discovery answers were false and he denied the accuracy of
others which were clearly inconsistent with his trial testimony. One example is
his discovery evidence was that he was on pain killer medication Gabapentin at
the time of the accident; at trial he said that was false and he was not on any
medication. He was able to give positive answers on discovery on matters about
which he claimed to have no recollection at trial one month later.

[19]        
Mr. Jacobsen acknowledged that prior to being examined for discovery on
October 24, 2011; he thought the accident had happened at noon and in the fall
season. Mr. Jacobsen was not located by counsel or ICBC for over three years
following the accident and there is no evidence of intervening consideration by
him or statements to others in that three year period. At discovery he said he
had no idea where the impact occurred on the highway. Mr. Jacobsen said that he
did not recall telling Mr. Esperson that he thought he had killed someone but
accepted that he did say so if Mr. Esperson so recalled. As previously
mentioned, he did not recall saying to Lindsay Jarmson “you’re going to hate me
for the rest of your life”.

[20]        
During examination-in chief Mr. Jacobsen said that he had not planned to
make a U-turn and no reason to do so. When confronted in cross-examination with
the scenario of him pulling over to the side of the road and pulling a U-turn,
his first response was “in my mind for sure that did not happen” and a
subsequent response was “not that I recall”. These answers, read in the context
of his general befuddlement and inconsistency, are indicative of a lack of
reliable memory.

[21]        
I find that Mr. Jacobsen was a wholly unreliable witness, and I can
place no weight on his evidence that he was driving along normally in his lane
accelerating toward highway speed and was mysteriously struck.

[22]        
The only hypothetical explanation for the post accident position of the
defendant’s car and the tire marks on the road that counsel was able to present
that is inconsistent with the plaintiff’s theory is the “flat tire theory”,
which I will deal with later.

[23]        
Unfortunately, neither party presented any expert evidence attempting to
reconstruct the detail of the collision. There are photographs in evidence
depicting the scene and several markings on the road surface. There is an
investigation report (Exhibit 18) prepared from an RCMP inspection of the scene
on August 2, 2008 providing some dimensions of same. There are photographs of
the damaged vehicles. Counsel’s arguments were based on common sense and a
rudimentary knowledge of the laws of physics, and this court’s analysis must be
similarly based.

[24]        
A verbal description of the road markings is contained in Exhibit 18 as
provided by Constable Orb who was an RCMP collision analyst. It is not
necessary or helpful to quote his entire description in these reasons. His
report and his testimony also referenced photographs taken by Constable
Robinson, who attended the scene on the day of the accident. In short, there
are several tire scuff marks and streaks of gouges obviously made by the
motorcycle commencing (in the case of one arc shaped tire mark) in the
westbound lane near the centre line of the highway and angling across the
centre line and toward and off the far edge of the eastbound lane. Constable
Orb’s report states that the 14.2 m long streak of gouges is located on a 45
degree angle to the centre line. The arced tire mark that commences in the
westbound lane arcs across the eastbound lane at an angle much more near the
perpendicular than the gouges, and it intersects the other tire scuff
apparently made by the rear tire of the motorcycle. That mark was 3.4m long as
measured by Constable Orb, but he acknowledged in his report that Constable
Robinson’s photographs depicted it as beginning across the centreline, which
was not observable to Constable Orb.

[25]        
There is also a tire scuff mark that Constable Orb aptly described as
J-shaped which is in the westbound lane near the centre line. It appears to
have been made by the left front tire of the Jacobsen vehicle. The J is
situated such that the long side of the J is pointed toward the centre line at
an angle of approximately 45 degrees and the apex of the rounded bottom of the
J is located approximately 1/3 of the width of the westbound lane away from the
centre line. The point at the short side of the J-shaped scuff is close to the
point where the arced scuff commences; this is evident in Exhibit 4, Tab 2,
photographs 3 and 4.

[26]        
The front left tire of the Jacobsen car was punctured and flat. The rim
of that wheel was also damaged, but that might well have occurred as the car
was driven off to the shoulder of the road after Mr. Jacobsen re-entered the
car.

[27]        
The defendant suggests that Ms. Jarmson’s evidence of not noticing an
acceleration cluing her to the initiation of a pass was inconsistent with Ms.
Ukkonen’s evidence of hearing a slight acceleration, and that the only logical
reason for acceleration would have been to initiate a pass of a slower moving
vehicle. I think the apparent inconsistency is simply a matter what degree of
acceleration the two witnesses were speaking of. Ms. Ukkonen spoke of a slight
acceleration that may well have been unremarkable to Ms. Jarmson and
insufficient to constitute the signal of a pass. This was not fully explored
with Ms. Jarmson. The evidence did provide an alternative reason for
accelerating, namely: the opening up of a straight level stretch of highway
after descending a significant hill with an S curve and a speed sign suggesting
60 kph at the top. Ms. Ukkonen and Mr. Esperson testified as to the usual more
marked acceleration at that point by many motorcyclists, who are always the
first vehicles off the ferry and leading the ferry traffic.

[28]        
The defendant suggests that Ms. Jarmson was inconsistent in her
estimates of the speed of the Jacobsen car as it turned. That is true, but
understandable in the circumstances, as I have said. The defendant highlights
the brevity of the opportunity for observation on the part of Ms. Jarmson and
suggests that her observation of the angle of Mr. Jacobsen’s car to the road
may actually have been an observation of the relative angles of the vehicles as
Mr. Jarmson was returning prematurely to the westbound lane from the eastbound
lane after attempting a pass. While a passenger with some obstructed view and
such a limited window of observation could hypothetically be disoriented or
mistaken about her vantage point, it is highly unlikely that is the case here.
I think it is highly unlikely that with her experience as her father’s
motorcycle passenger she would have been unaware of them having moved over to
the eastbound lane, and even if that manoeuvre was achieved so gradually as to
escape her notice, the initiation of a relatively dramatic return manoeuvre to
approach the Jacobsen car at an angle that the defendant elsewhere postulates
at 45 degrees to the highway centre line could not reasonably have escaped her
notice. This would be the case whether Mr. Jarmson turned to the right by
steering or by leaning.

[29]        
The defendant argues against drawing the inferences sought by the
plaintiff from Ms. Ukkonen’s evidence about the nearly perpendicular position
of the Jacobsen car in the westbound lane after the collision. He points out
that Ms. Ukkonen’s evidence positioned the car several metres west of the known
impact point, which is impossible if it was hit while perpendicular because
there are no skid or scuff marks indicating that it was forced there by the
impact. The submission is as follows:

We submit that the flattening of
the tire and a hard turn of the vehicle to the left commencing with the
flattening of the tire is logical and accounts with the scuff mark and Ms.
Ukkonen’s belief as to the final resting spot of the defendant’s car.

This submission also does not
explain a final resting position of the car metres down the road from the
impact point with both rear wheels on the fog line. A veering to the left does
not explain how the rear end could skid around without leaving skid marks on
dry bare pavement, or where the force for a spin in that direction originated. Ms.
Ukkonen did not place her sketch of the resting location of the defendant’s car
by reference to the marks at the point of impact, but by recalling from memory
where it was in reference to roadside trees and shrubbery. There is evidence (Mr.
Esperson) that some first responders cut some trees down which might account
for some small error on her part, but in any event she placed the car within
about 1 to 1½ car lengths of the point of impact. I conclude that she was
probably slightly in error in doing so. Her evidence in that regard is of less
significance than the orientation of the car and that error does not cause me
to conclude that her evidence of the latter is unreliable.

[30]        
I find that Ms. Ukkonen’s evidence of a very loud noise from the
collision is consistent with the plaintiff’s theory of a very direct impact and
a significant difference in speed between colliding vehicles, and is
inconsistent with the theory of a motorcycle travelling highway speed cutting
in too soon while passing a vehicle approaching highway speed, where the speed
differential would be far less.

[31]        
As for Mr. Esperson’s evidence that Lindsay said “we’ or “Dad” cut in
too soon, I have difficulty accepting that she said that. She gave a statement
to the police less than 24 hours later that related how the defendant had
started to turn in front of them. She did not impress me as the type of person
who would have concocted a lie in that circumstance, and she had no opportunity
to be coached or to collaborate with any family prior to making that statement.
Mr. Esperson’s testimony in examination-in-chief was that he spent only 5
minutes with Lindsay of the “good hour” that he was at the scene. (The
defendant’s submissions state that his evidence was that he spent the bulk of
his time tending to Lindsay, but that is contrary to my notes.) He also said in
examination in chief that everyone at the scene was talking and speculating
about how the accident happened. I don’t suggest that Mr. Esperson is knowingly
being untruthful, but I think he may have misunderstood something Lindsay said
or wrongly attributed his or somebody else’s speculation to Lindsay.

[32]        
In my view the perpendicular location of Mr. Jacobsen’s car before he
moved it off the road is strongly supportive of the scenario advocated by the
plaintiff. The location of the rear of the car is not consistent with any
explanation put forth or that occurs to me other than that the car got into
that position by being driven there from the shoulder of the westbound lane.
The shoulder at this location is very wide. Photograph 6, at Tab 3 of Exhibit 4,
shows a full sized police cruiser parked fully on the shoulder with about two
feet to spare on the outside of the white fog line.

[33]        
The J-shaped scuff mark indicates movement of the Jacobsen car toward
the centre line after the impact. Common sense tells us that this means the car
was already moving in that direction before impact, since there was no impact
force in that direction. That particular mark does not appear to have been made
by a rolling flat tire and it seems likely the left front tire was punctured
and knocked off the rim either at the time of impact or as the tire skidded
while making its scuff mark.

[34]        
Another item of physical evidence suggesting that a force in a southerly
direction was in play is the shape and direction of the arced scuff mark
ostensibly from the front tire of the motorcycle, which I described earlier.

[35]        
The defendant suggests that the departure angle of 45 degrees for the
motorcycle and riders is wholly inconsistent with the Jacobsen vehicle being
nearly perpendicular to the highway at the time of impact, and consistent only
with the motorcycle sideswiping the westbound car at an impact angle of 45
degrees. Absent expert evidence, I do not find that submission compelling. It
is clear from the nature of the damage to the car that at the actual impact the
vehicles were not exactly perpendicular to each other and no evidence suggests
that they were. Clearly the motorcycle glanced off the front corner to an
extent and this was not a T-bone collision which stopped the forward movement
of the motorcycle. I cannot discern whether this was because the witnesses’
estimates of the relative angles of the vehicles are in error or because the
momentum of the car toward the centre line affected the departure trajectory of
the motorcycle and riders. In any event, I find the suggestion that Mr. Jarmson
must have driven his motorcycle at a 45 degree angle at the car he was passing
and struck its front wheel and wheel well with the front fender, front wheel
and forks of the motorcycle wholly implausible in the circumstances.

[36]        
I am satisfied on the whole of the evidence that this accident probably occurred
in the manner claimed by the plaintiff. As I previously noted, the Jacobsen car
probably initiated a turn from the shoulder of the westbound lane. As to the
question of contributory negligence on the part of the plaintiff, it is
obviously possible that he was not keeping a proper lookout or driving with due
caution in respect of the Jacobsen car which was there to be seen, but in the
absence of any reliable evidence as to whether or not the defendant’s car was
moving or displaying signal or brake lights or other indications of a hazard
that should have been evident to Mr. Jarmson prior to Mr. Jacobsen negligently
turning into the path of Mr. Jarmson, I am unable to find on a balance of
probabilities any failure to exercise the appropriate standard of care or
negligent driving on Mr. Jarmson’s part. I therefore find the defendant 100% at
fault.

MR. JARMSON’S INJURIES AND A SUMMARY OF THE MEDICAL EVIDENCE

[37]        
Mr. Jarmson, a few days short of his 56^th birthday at the
time of the accident, sustained a traumatic brain injury, fractures of his
right femur, his left wrist, and right foot, chest trauma with a collapsed
right lung, contusion of his left eye, facial lacerations and lacerations to
his right great toe and right elbow. Surgery was required in respect of the
fractures. The metal devices used for internal fixation of his femur and his
wrist remain in place. He was hospitalized for about 35 days. While he was in
hospital, a CT scan revealed a moderate left-sided disc herniation at C4-5, but
the medical evidence is equivocal as to whether this was a consequence of the
accident.

[38]        
Later diagnoses of problems stemming from the initial injuries included
right foot complex regional pain syndrome, heterotopic bone formation in the
right thigh muscle, stiffness of the right knee, tears of tendons and cartilage
of the right shoulder, post-traumatic stress disorder, and depression.

[39]        
Mr. Jarmson’s pre-accident health status is summarized succinctly in the
following paragraphs from a June 2010 medical legal letter from Dr. Susan
Norton, his family physician in Dubai:

Prior to the aforementioned accident, Mr. Jarmson was an
extremely fit individual. He exercised regularly and was in excellent physical
condition. He regularly travelled with his family and the school at which he
worked, and these trips were often quite rigorous, involving trekking, cycling
etc. He also worked full time at the American School of Dubai as an art
teacher. Prior to the MVA, he had never requested any sick leave from my
office.

Prior to the MVA Mr. Jarmson’s
visits were for simple complaints such as sinusitis, persistent upper
respiratory tract infection, Dupytren’s contracture and one episode of
patellofemoral syndrome. He never had any visits for mood disorder, pain or
disability. In fact he was a very happy, well adjusted individual, living life
to its fullest.

[40]        
Mr. Jarmson’s pre-accident nature was, according to the evidence, that
of a socially outgoing, humorous, light-hearted, gregarious, family-oriented
man, with a passion for pursuing his artistic talents and teaching art. He was
keen (his own description was “religious”) about keeping fit by running and gym
workouts, primarily with free weights, but also using the treadmill and cycles.
He and his wife and two daughters were avid and very experienced international
vacation travellers. Prior to Mr. Jarmson taking the teaching position in Dubai
in 2003, he taught art in Bangkok, Thailand for 6 years, and prior to that he
had a teaching position in Bolivia. Each of these international positions provided
bases from which the Jarmson family travelled to other neighbouring countries. According
to his wife and his daughter Lindsay, Mr. Jarmson was usually the planner and
initiator of their travels.

[41]        
Following his discharge from the Kelowna General Hospital on August 30,
Mr. Jarmson convalesced at the home of friends in Vernon B.C., under the care
of Mrs. Jarmson until about November 25, 2008, when he and Mrs. Jarmson
returned to Dubai. Their daughter Lindsay had returned to Dubai in
mid-September to continue her schooling. Mr. Jarmson remained on disability
leave for the entire 2008/2009 school year and Mrs. Jarmson returned to her
teaching assistant position in January 2009.

[42]        
Mr. Jarmson continued his convalescence in Dubai, which Mrs. Jarmson
described as consisting of exercising, napping, visiting medical doctors
regularly and occasionally going to work with her in the afternoons. She worked
out with him as they had done before the accident, but he used the weights at a
much reduced level and was in pain when he used the stationary bike. Mrs.
Jarmson described Mr. Jarmson as being moody and depressed. Medication helped
somewhat, as did counselling once they found a suitable counsellor, but Mr.
Jarmson was full of rage and slapped himself in the face to the point of
bruising and banged his head on walls. This occurred weekly at first, but with diminished
frequency over time.

[43]        
Dr. Susan Norton’s June 2010 medical report described her observations
and impressions of Mr. Jarmson upon his return to Dubai and in the first few
visits thereafter:

On December 18, 2008 Mr. Jarmson presented to my office,
shortly after having returned to Dubai from Canada. He reported that he had
been involved in an MVA in Canada the previous summer, in which [he] had
allegedly been hit by a car while riding a motorcycle with his daughter. He was
thrown down an embankment and suffered a massive closed head injury, comminuted
fracture of the right femur and left wrist, fractured ribs, pneumothorax and
hemothorax. He was kept in Kelowna Gen Hospital until August 30/2008. It is my
understanding that during this time he had extensive rehabilitation, and after
discharge had ongoing rehabilitation. I have reviewed a neuropsychological
testing report by Dr. Miller dated 28/08/2008. In that report he states that Mr.
Jarmson had suffered a prolonged period of post traumatic amnesia and on
original assessment 11/08/2008 was reported to have moderate to severe
cognitive dysfunction. On the assessment on 28/08/2008 Dr. Miller found a
variety of cognitive deficits, as well as symptoms of anxiety, depression,
short attention span and agitation.

At that first visit on December 18, 2008 I was shocked to see
the state Mr. Jarmson was in. He moved very slowly, in obvious pain. He on
numerous occasions stopped his speech in mid sentence as he had forgotten what
he was talking about. He was exhibiting signs of depression. He was complaining
of insomnia secondary to pain in his leg, shoulders, neck, chest wall and
wrist. He was having nightmares about the accident. I started him on
Amitryptaline 25 mg at night to help him sleep and to treat his pain. He also
reported to me that he was being followed by Beverly Strathearn,
physiotherapist at Orthosports and Dr Moosa Kazim, Orthopaedic Surgeon at
Orthosports.

On December 27, 2008 I saw Mr. Jarmson again. He was having
severe insomnia due to pain and nightmares and the Amitryptaline had
unfortunately had a paradoxical effect on him and made him hyperalert I gave
him a small supply of Diazepam 5 mg to help with sleep and also to relax his
muscles. I also gave him a letter to help get financial coverage for a thick
memory foam for his bed and pillow to try to alleviate the pain.

On January 15, 2009 I got a call from Mr. Jarmson. He stated
his pain was ongoing and he walked with a limp and significant pain. He also
advised he got very fatigued if walking for even short periods of time. He was
attending Fitness First gym with a personal trainer to undertake a
rehabilitation programme, which often would require 3 to 4 hours to get through
a routine, as he would have to go slowly and take frequent rests. I did a
letter authorizing a handicapped parking pass as the parking area was quite a
distance from the gym.

On February 18, 2009 I saw Mr.
Jarmson. He advised me that he had been diagnosed with Reflex Sympathetic
Dystrophy in the right foot and was getting sympathetic nerve blocks at
American Hospital of Dubai to try to help the pain. As well he said he had
ossification of the right quadricep that was giving him pain. He was also
getting bilateral shoulder pain and was awakening in the middle of the night
with bilateral upper limb stiffness and pain. He was taking Lyrica for
neuropathic pain and this was helping his sleep somewhat.

[44]        
Mr. Jarmson returned to his teaching job at the American School of Dubai
in August 2009 but his ability to cope with the demands of the job was badly
compromised. The superintendent of the school, Mr. Fleetham, testified that Mr.
Jarmson was unable to do the necessary mapping and planning, and some of his
previous functions were assumed by others. Mr. Fleetham observed that Mr.
Jarmson changed from being the life of the party to “not being able to put his
head in the door”. Mr. Jarmson had to be spoken to about losing his composure
at times, displaying anger and ranting, and he was completely ashamed of that.
Mr. Fleetham observed that the brain trauma had a severe effect on Mr.
Jarmson’s life and his relationships. Everyone knew he had to be dismissed, but
the school was the heart of the expatriate community and there was a sense of
family, a bond amongst the staff and administration.

[45]        
 Mr. Fleetham spoke directly to Dr. Miller, Mr. Jarmson’s
neuropsychologist, and was given hope that Mr. Jarmson’s brain injury symptoms
would improve. In the summer of 2010, Mr. Jarmson advised Fleetham that he
would resign, but needed one more year to enable his daughter Lindsay to finish
grade school in Dubai. Mr. Jarmson was kept on for the 2010/2011 school year,
after which he resigned and returned to Canada.

[46]        
Mr. Fleetham testified that before his injuries, Mr. Jarmson was an
excellent “hands-on” teacher who went the extra mile in extracurricular
activities and was a “spot-on” colleague, liked by his students and loved by
their parents. But at this point in time, if asked, he would have to decline to
recommend him as a teacher.

[47]        
Mr. Fleetham’s evidence was echoed and reinforced by that of Mr. Hansen,
a former art teaching colleague of Mr. Jarmson, who related the details of a
strange loss of control by Mr. Jarmson at a meeting, which included him hitting
himself in the face. He also related how he had to help other staff and
students deal with the changed Mr. Jarmson, and how on occasion he would have
to go into Mr. Jarmson’s classroom to manage the students after Mr. Jarmson had
walked out of the classroom to “deal with himself”. Mr. Hansen would also not
be able to provide a reference for the plaintiff as a teacher.

[48]        
Similar evidence was provided by Mr. Ridley, the head of Arts at
American School of Dubai, a former colleague and good personal friend of Mr.
Jarmson. Mr. Ridley has taught in Canada, England, France, and Venezuela. He is
now in his 12^th year of teaching in Dubai. He described Mr. Jarmson
before his motorcycle accident as passionate, creative, talented, and one of
the best art teachers he has been associated with. He loved his job and the
students loved him. Mr. Ridley said that when Mr. Jarmson returned to work one
year post accident, he was like a different person. He heard daily reports of
Mr. Jarmson’s difficulties on the job, including “explosions” and marked lack
of respect. He had become a “slacker” who was always sitting down. Ridley also
witnessed Jarmson’s loss of control and head banging that occurred over a minor
issue at a meeting. He volunteered the opinion that Mr. Jarmson should not have
returned to the job, and that he would have been fired if he was working in a
school in Ontario or Saskatchewan. Some staff did not want him to be kept on,
but others, including Mr. Fleetham and Mr. Hansen, were “covering” for him.

[49]        
Lindsay Jarmson also testified about the differences in her father’s
demeanour and functioning as a teacher after the accident. She was once “texted”
by a friend in his class, to come and see her father immediately. She asked to
be excused from her own class and went to calm her father down. This was
difficult to do because of his exaggerated stubbornness and his posture of
being strong

[50]        
Lindsay also testified about the difficulties for the family in not
knowing when Mr. Jarmson would have a “fit”, or “meltdown”, which occurred at
least weekly at first, but diminished in frequency over time. She said that Mr.
Jarmson’s role within the family has changed, although she said had difficulty
explaining how. Mrs. Jarmson testified to the same effect in respect of Mr.
Jarmson’s meltdowns, stating that although progressively less frequent, and
completely absent since his return to Canada, he has had a meltdown within the
last six months.

[51]        
 Mrs. Jarmson clearly took on a great deal in emotionally supporting and
physically caring for Mr. Jarmson after the accident and by all the evidence
she did so in an exemplary fashion. By the accounts of several witnesses, that
role has become a permanent feature of their lives. At least one witness
referred to her as “a saint”. Mr. and Mrs. Jarmson always had a strong
partnership, but it appears that much of the energy that he previously supplied
must now come from her. I think that is probably also the role change that
Lindsay Jarmson was alluding to. Mr. Krahn, a long term friend of the Jarmsons,
testified that they were always a team, but since the accident Mrs. Jarmson has
become more like a mother or a nurse to Mr. Jarmson. Mr. Krahn said that Mr.
Jarmson defers to Mrs. Jarmson on decisions, and he doubts that he could manage
his life without her.

[52]        
Clearly the last three years in Dubai were extremely difficult for Mr.
Jarmson and his family. However, since his retirement from teaching in June
2011, and the release from the frustrations of dealing with his condition and
feeling overwhelmed in those years, Mr. Jarmson said that he feels as if a huge
weight has been lifted from his shoulders.

[53]        
Shortly after returning to Canada, Mr. Jarmson underwent his third
neuropsychological evaluation by Dr. Harry Miller, and Dr. Miller’s July 28,
2011 report summarized his findings, including references to previous
evaluations, as follows:

In summary, the patient is a 58-year-old, right-handed male
who was a motorcyclist involved in a motorcycle/motor vehicle collision on 27
July 2008. The motorcycle was struck by a vehicle, and the patient went down an
embankment. He suffered multiple injuries including a right femur fracture,
left wrist fracture, and traumatic brain injury. Serial CT scans of the brain
revealed bifrontal contusions, subarachnoid blood, and bifrontal and right
temporal subdural hygromas. There was a prolonged period of post traumatic
amnesia. The patient received initial attention at Arrow Lakes Hospital, with
transfer to Kelowna General Hospital for further acute care and rehabilitation.
He underwent an abbreviated neuropsychological evaluation on 11 August 2008
while in hospital, and results revealed diffuse cognitive dysfunction of a
moderate to severe nature. The patient was discharged from Kelowna General
Hospital on 30 August 2008 and he was seen for a repeat neuropsychological
evaluation in July 2009. The results demonstrated significant deficits for
complex auditory attention, verbal learning and memory, and speed of auditory
information processing. Certain aspects of language were noted to be impaired
and in particular, there was evidence of hyperverbosity. There were significant
emotional issues, including depressed mood, anxiety, irritability, poor
frustration management, and the patient becoming readily overwhelmed. The
patient returned to his position as a teacher in Dubai in August/September 2009
and there were accommodations in place to facilitate durability of return to
teaching. The patient retired from teaching in June 2011. When he was seen for
the neuropsychological evaluation on the present occasion (20 and 21 July
2011), the patient reported ongoing cognitive, emotional, and physical changes
since the motorcycle/motor vehicle collision of 27 July 2008.

The results of the
neuropsychological evaluation completed on 20 and 21 July 2011 revealed most
areas of higher cognitive function to be within normal limits. These included
visual attention, processing speed, most aspects of language, academic skills,
learning and memory, intellectual abilities, and problem solving/reasoning. In
contrast, there were deficits for complex auditory attention and some aspects
of language (i.e. hyperverbosity, circumstantial speech). Personality
examination and clinical interview revealed significant emotional disturbance
characterized by depressed mood and anxiety.

[54]        
Dr. Miller’s DSM IV diagnostic formulation included personality disorder
due to traumatic brain injury and an adjustment disorder with mixed features of
anxiety and depressed mood. Based on neurological indices of severity, Mr.
Jarmson suffered a severe traumatic brain injury.

[55]        
A further indication of the severity of the injury to Mr. Jarmson’s
brain is gleaned from the evidence of Dr. Gary Stimac, a diagnostic
neuroradiologist, who testified and reviewed with the court many of the scanned
CT and MRI images of Mr. Jarmson’s brain. These consisted of CT images taken at
Kelowna General Hospital at intervals of about 9 hours, 40 hours, and 5½ days
after the collision, and a complex set of MRI images obtained April 5, 2011.
Dr. Stimac’s written report of August 15, 2011(p. 5-6) notes that:

The radiology examinations, in
conjunction with emergency evaluations, establish that Mr. Jarmson sustained
severe injury to the head. The immediate and subsequent CT scans show the left
frontal impact and the coup-contrecoup contusions. The later MRI shows diffuse
brain atrophy, evidence of white matter scarring, encephalomalacia, and
hemosiderin deposits from the hemorrhagic contusions.

[56]        
Dr. Stimac explained that the atrophy he referred to is due to the
absorption/removal of necrotic tissue.

[57]        
At p. 6-7 of his report, Dr. Stimac applies his knowledge of the
neuropathology of shearing injuries to the imaging evidence in this case, in
the following manner:

White matter shearing injuries are the
result of acceleration, deceleration, and rotation of the brain within the
cranial vault, they can occur with or without impact of the head, because the
brain deforms under abrupt change in position. Helmets can lessen the impact
and prevent skull fracture. However, helmets are not designed to prevent
rotational and translational shear forces. This is especially true when the
force of impact exceeds the protective effects of the padding and structure of
the helmet. The substantial facial/scalp injuries and the multiple hemorrhagic
contusions demonstrate that the impact was well beyond that for which any
helmet could prevent shearing trauma to the brain.

Shearing of brain tissue occurs in the
planes of motion throughout the brain and, particularly, at margins of
structures of differing densities. These margins include the gray-white
junctions, the basal ganglia regions, the deep white matter, and the corpus
callosum. This shearing can injure small blood vessels (causing focal
hemorrhages) or small areas of brain tissue (causing small contusions). In this
case there were several visible shear hemorrhages on the initial CT scans. The
more recent MRI scan shows several foci of gliosis, indicative of shear
injuries. The larger contusions in the frontal lobes, the left temporal lobe,
and the high left convexity, as shown on the initial CT scans, have left
residual areas of encephalomalacia and gliosis. Contusions are highly
correlated with the presence of shearing injuries. Other than traumatic brain
injury, there is no alternative explanation for these abnormalities in Mr.
Jarmson’s scans.

Such focal lesions on scans are visible
evidence of shear injury. However, the ominous lesions in closed head injury
are the shearing of individual axons. The axons are white matter processes that
extend between brain cells – the connections that allow communication
throughout the brain and between the brain and the rest of the body. The
shearing forces result in a shearing of axons diffusely throughout the brain, a
process called diffuse axonal injury (DAI). Because the axons are microscopic,
these lesions are not visible on CT or traditional MRI scans.

The result of
DAI is diffuse disconnection of the brain cells from one another and from the
body. Depending on the location and number of injured axons, the symptoms may
vary from one individual to another. Generally, more severe impact results in
greater axonal injury and, consequently, greater neurocognitive impairment.
Because axons are injured diffusely throughout the brain, multiple functions
can be affected. These often include vision, memory, speech, executive
function, balance, coordination, personality, emotion, energy, and motor
function. When macroscopic contusions occur, as were present in this case,
there is an added effect of focal areas of brain injury to the diffuse brain
damage.

[58]        
Dr. Stimac’s conclusions  (p. 7-8) included the following:

4.         The long term symptoms reflect a constellation of
abnormalities in diverse areas of brain function. This pattern is typically
seen as a result of closed head trauma and DAI. These problems are further
exacerbated by the multiple brain contusions and resultant loss of brain
substance.

5.         The immediate CT scans show left forehead impact.
Within the brain are multiple hemorrhagic contusions, shear hemorrhages. These
findings indicate significant closed head impact and the likelihood of shearing
injury to the brain. Shearing injury is highly associated with DAI.

6.         The MRI scan,
performed 2 ½ years after the injury, confirms the outcome of the initial CT
scans, documenting hemosiderin deposition from the hemorrhagic contusions,
diffuse brain atrophy, and gliosis [scarring].

[59]        
Dr. Miller recommended that Mr. Jarmson continue to receive
psychotherapy/counselling to address the emotional issues, to decrease the
level of emotional distress, and to develop strategies to facilitate a
proactive management of emotional issues. With improvement in emotional health,
Mr. Jarmson is likely to realize a better cognitive and day-to-day function. As
to prognosis, Dr. Miller expressed the opinion that the neuropsychological
impairment demonstrated on the current neuropsychological evaluation is of a
permanent nature although it is possible that if there is improvement in his
emotional adjustment there may be some lessening of the severity of
neuropsychological impairment.

[60]        
After noting that Mr. Jarmson’s return to work was achieved with
modifications and accommodations in the circumstance where Mr. Jarmson was
familiar with the expectations and demands of the job, he noted that:

 …typically, a new work
environment and new job are expected to place greater demands on cognitive
abilities such that it might be anticipated that the patient will have
increased challenges to function in the workplace, relative to the already
significant challenges he experienced in his efforts to return to work in a job
that was very familiar to him. In essence, the patient, as a result of the
neuropsychological consequences of the motorcycle/motor vehicle collision of 27
July 2008 has a persistent vocational disability and it is unlikely that the
disability will be lessened in the future.

[61]        
As to how Mr. Jarmson’s current brain injury disability will affect his
activities of daily living, recreational, social and cultural activities, Dr.
Miller’s report stated the following:

The nature of the patient’s
neuropsychological impairment is unlikely to present difficulties in the
patient’s efforts to manage routine and overlearned day-to-day activities.
However, if he is required to plan and organize more complex activities such as
vacations or building of a home, or to participate in more demanding financial
transactions, there is the potential for the patient to develop anxiety and to
become overwhelmed, and should this occur, the patient will be compromised in
his efforts to carry out more complex or demanding activities. I expect that
the patient will have persistent issues of this nature in the future. Further,
he is subject to being readily fatigued, and fatigue will have a negative
effect on cognitive abilities and increase the likelihood of becoming
overwhelmed, such that the magnitude of interference as a result of the
patient’s neuropsychological dysfunction on carrying out more complex
day-to-day activities can be variable and might range between mild to a more
striking effect.

[62]        
Dr. Travlos, a Physical Medicine and Rehabilitation specialist examined
Mr. Jarmson for an independent assessment on July 25, 2011. He provided a written
report of the same date, and testified at trial. I note that Dr. Travlos’
assessment preceded Dr. Miller’s third report, but nothing particularly
contentious arises on that account. Dr. Travlos would have to defer to Dr.
Miller’s specific expertise on neuropsychological matters. Dr. Travlos said
there is nothing in Dr. Miller’s third report that would influence the opinions
he expressed in his July 25, 2011 report. I note only that Dr. Travlos’
reference to Mr. Jarmson’s brain’s physiological recovery having plateaued and
his current level of cognitive function being permanent should be taken as
subject to Dr. Miller’s comment that improved emotional health could possibly
result in improved day-to-day function.

[63]        
Dr. Travlos’ report agrees that increased readiness to fatigue is a
consequence of Mr. Jarmson’s brain injury and is likely to be a permanent
problem for him.

[64]        
The following excerpts from Dr. Travlos’ report (p. 12) are pertinent in
identifying other incidental consequences of his brain injury:

…Although individuals with head injuries can function in
isolated areas quite well, it is the ability to multitask, the ability to block
out extraneous information, and the ability to focus on tasks while other tasks
still need to be done at the same time, that is lost in these individuals. This
unfortunately is exactly what teachers have to do all the time due to the need
to deal with multiple students, multiple inputs and multiple different
questions and interactions at the same time. Switching from one teaching
subject to another can also impact on the ability to adapt and it is not
surprising that he had feelings of being overwhelmed. In order for Mr. Jarmson
to return to any formal work, he would need to have a relatively controlled
environment with restricted activities and work hours.

Mr. Jarmson has not had any problems with his smell and is
not at any increased risk of danger to himself because of his lack of smell.
Although he says it is not as good as it was, he can still smell and he can
still differentiate things in terms of taste.

Mr. Jarmson’s visual spatial orientation is not quite as good
and he does tend to get lost. This should not be a major issue of concern for
him, although it may be inconveniencing at times.

Mr. Jarmson may be at mild increased risk of a seizure
disorder, given the amount of trauma and bleeding around the brain. This
increase is small and only a possibility.

With Mr. Jarmson’s background
history of Alzheimer’s, he may be at increased risk of developing late onset
Alzheimer’s or dementia as a result of the combination of his brain injury and
a family history of Alzheimer’s disease.

[65]        
Dr. Travlos’ report deals with the progress and status of Mr. Jarmson’s
other bodily injuries. The injuries to his left elbow, left wrist and chest
have healed. The left wrist is producing shooting pains occasionally, which is
probably due to a radial deviation and reduced mobility of the carpal bones.

[66]        
Dr. Travlos says that Mr. Jarmson’s shoulder is a concern, with an
obvious tear of the subscapularis tendon and labrum, and rotator cuff
impingement. If further exercises and a possible further cortisone injection do
not help, Dr. Travlos suggests that Mr. Jarmson should seek an Orthopaedic’s
opinion as to a surgical solution.

[67]        
Although the thigh fracture healed, a bone grew in the muscle of the
thigh reasonably close to the knee. This was surgically removed and the surgery
improved a previously limited range of motion in the knee, but Mr. Jarmson
continues to have difficulties and limitations beyond those he would have had
in the absence of the accident, including arthritic change throughout the knee.
Dr. Travlos, at p. 16,  is of the opinion that:

Mr. Jarmson’s [right] knee
symptoms will not improve, given the tethering and scarring of his quadricep
muscles and the tightness around the knee. It is more probable than not that he
will go on to have a knee replacement over his lifetime. It is difficult to
know just when this will occur, as the knee is still functioning reasonably
well for now, but I suspect that over the next ten years this will become a
primary problem for him. Knee surgery is not without risk and the risks include
infections, repeat surgical replacements, and trauma to blood vessels and
nerves, amongst other problems. Following any knee surgery, at least a
six-month rehabilitation process would be necessary. In my opinion, any future
knee surgery here will be primarily a result of his motor vehicle accident and
not any of the pre-accident problems that he had.

[68]        
 Dr. Travlos expressed the view that Mr. Jarmson’s right foot injuries
are fairly significant and although it is possible there was some pre-existing
reduction of range of motion of his subtalar joint from a previous leg
fracture, he suffered a fracture of his navicular bone, affecting the
talonavicular joint and reducing the range of motion and the function of his
foot. He will continue with limitations in functional use of his right foot and
leg indefinitely and it is probable that he will develop increased arthritic
change of the metatarsophalangeal joint. It is also possible he will develop
more pain in the mid-foot that may require further surgical fusions.

[69]        
Dr. Travlos’ opinion as to the effect of Mr. Jarmson’s injuries on his
lifestyle was expressed as follows:

Mr. Jarmson is restricted from
participating in recreational activities, as well as home-based chores and
activities. These restrictions are here to stay even if he improves further. He
is going to be restricted from higher-level balance activities, restrictions on
any type of dangerous activities such as climbing scaffolding, roofs, or
physical work such as mowing lawns, trimming trees, landscaping, etc. He is not
going to be able to return back to recreational activities such as downhill
skiing, running, going on heavy hikes or even going for long walks.
Unfortunately, Mr. Jarmson’s lifestyle has been impacted dramatically by this
accident and he is going to have to make emotional adjustments to the changes,
as his prior lifetime activities will no longer be viable for him to do over
the long term. These restrictions will impact on his mental health and he is
going to require some counselling assistance to deal with the expected
long-term loss of mobility.

[70]        
Dr. Keith Christian, orthopaedic surgeon, examined Mr. Jarmson for 45
minutes on August 24, 2010, and his written report of the same day states his
opinion that the stiffness and discomfort in Mr. Jarmson’s right knee is
explainable as post-traumatic arthrosis involving the knee or possibly some
direct trauma to the knee at the time of the accident. He did not think the
knee impairments would be vocationally disabling for Mr. Jarmson as a teacher
(Mr. Jarmson had not retired from teaching at that point), but if he was to
consider other forms of work activity involving more vigorous physical
activity, he would probably be prevented from doing so as a result of the
accident.

[71]        
In responding to one of the specific questions in counsel’s letter of
instruction, Dr. Christian stated the following opinion on Mr. Jarmson’s
general disability and its effect on his activities:

With respect to Mr. Jarmson’s general disability and
how his current disability affects his activities of daily living and
recreational and household activities, I would say that he does have
significant problems involving his right knee which are likely to continue to
be disabling. He lacks a few degrees of extension and about 25 degrees of
flexion on the right knee. The few degrees of extension loss is more
significant in that it does tend to cause him to limp. The normal knee function
requires the knee to be able to be locked in full extension to maintain a normal
gait and, as a result of this restriction he is not able to do this. This
likely will tend to promote the limp that he has and because of the abnormal
forces at the knee joint caused by this problem it is likely that degenerative
osteoarthritis of the knee will be a possibility for him in the future. The
disruption of the articular surfaces of the foot will likely result in the
development of degenerative osteoarthritis here in later life.

The functional limitations that this knee injury will cause [are]
likely to impinge on his ability to be involved in certain strenuous physical
activities, particularly running and cycling and anything involving the
strenuous use of his lower extremities. In addition to the lack of function of
his right knee, he does have some stiffness and loss of extension of the right
foot, which likely compounds the problem. This will further impact on his
ability to be involved in recreational activities of a strenuous nature to
which he was accustomed prior to the injury.

Unfortunately the lack of a range of motion of the foot and
knee that he has at this point in time is likely to be permanent.

Fortunately the radial fracture appears to have healed
satisfactorily and I would not anticipate any residual problems here.

The right shoulder symptoms do
not appear to correspond to any identifiable pathology attributable to the
accident in question. He does have some restriction of internal rotation of the
right shoulder, which causes discomfort here. Although there was no record of
any direct trauma to the shoulder at the time of the accident I would consider
it likely that a soft tissue injury to the shoulder did occur and was
overshadowed by his other, more pressing injuries. I suspect the injury is
largely soft tissue in nature and I would expect that there might be a tendency
for improvement of this problem as time goes on.

[72]        
Turning to the question of recommendations for future treatment Dr.
Christian said the following:

With regard to future
recommendations and treatment, I would not anticipate the necessity for any
specific surgical measures for this man in the future. I think maintaining his
normal functions of daily living is important for him and I would not be
optimistic that any particular form of supervised form of physical therapy in
the future would be beneficial for him.

[73]        
The defendant argued that where there is any conflict between the
evidence of Dr. Travlos and Dr. Christian on the shoulder injury etiology or
the potential need for a knee replacement, the court should prefer the opinion
of Dr. Christian because he is the more qualified expert, given that it is an
orthopaedic surgeon who performs shoulder and knee surgery.

[74]        
In my view, there is no direct or particularly significant conflict
between the expressed opinions of these two experts. While Dr. Christian makes
no reference to the obvious tear of the subscapularis tendon and labrum that
are part of Dr. Travlos’ discussion, and apparently saw no objective indication
of how the accident caused the symptoms, he nevertheless opined that a soft
tissue injury to the shoulder was likely suffered in the accident. As for the
future probability of the need for a knee replacement sometime during Mr.
Jarmson’s lifetime, the court did not have the benefit of any specific rebuttal
from Dr. Christian. Dr. Christian did not testify at trial. Without
clarification as to what Dr. Christian meant in terms of probability by saying
“I would not anticipate..”, and whether he meant “future” to refer to Mr.
Jarmson’s entire lifetime, I cannot interpret his words to imply direct
disagreement with the opinion that Dr. Travlos expressed approximately one year
later. I note that Dr. Travlos’ did not specifically relate his opinion of
probability of surgery to a 10 year period, but rather stated that right knee
function would become a primary problem for Mr. Jarmson over the next 10 years.

[75]        
In any case, a possible knee replacement is a future event and the
distinction between a strong possibility and a probability is a relatively
minor one in this case, particularly in respect of assessing non- pecuniary
loss. Dr. Christian clearly considered the plaintiff’s knee injury to be
significant and permanently disabling. I am not sure that living a good portion
of the remainder of his life with a knee problem on the cusp of needing
surgical replacement and naturally deteriorating further with degenerative
arthritis and age is worthy of less non-pecuniary compensation than facing
remedial surgery in about 10 years.

[76]        
I will proceed on the basis that the odds on Mr. Jarmson requiring a
knee replacement at some point during his lifetime are about even.

[77]        
I will move on to a discussion of the assessment of damages under each
head of damages.

NON-PECUNIARY DAMAGES

[78]        
The plaintiff argues for a substantial award under this head of damages
in view of the significant impact that his cognitive and physical injuries have
had and will continue to have on all aspects of his life, socially, physically,
emotionally, cognitively and behaviourally. It is submitted that his chosen life
as an international teacher, with all the perks and aspects that came with it,
was taken away from him, and early retirement has been forced upon him. His
role within the family has had to change significantly, and he will no longer
be able to participate to the same extent in the physical activities he used to
enjoy with the family.

[79]        
The formerly charismatic, gregarious, humorous, happy Mr. Jarmson is now
less gregarious, not as humorous. He has become egocentric, and now has an
adjustment disorder, depression and altered body image. He has chronic pain in
his right knee, right foot and right shoulder. Notwithstanding his
characteristic stoic nature, he is impacted daily by fatigue, both mental and
physical, and remains prone to emotional meltdowns.

[80]        
These submissions are well supported by the evidence. The plaintiff
submitted that the appropriate award under this head of damage is $250,000 and,
after referring to Stapley v. Hejslet, [2006] B.C.J. No 128 (B.C.C.A.),
for the proper approach to assessing this head of damage, cited the following
cases for arguably comparable awards:

Wilson v. Russell, [2000]
B.C.J. No. 2346 (B.C.C.A.):  $250,000

Moskaleva v. Laurie, [2009]
B.C.J. No.1150 (B.C.C.A.):  $245,000

Lines v. Gordon, [2009]
B.C.J. No.471 (B.C.C.A.):  $225,000

Dikey v. Samieian, [2008]
B.C.J. No. 902 (B.C.S.C.):  $215,000

Burdett v. Eidse et al,
[2010] B.C.J. No. 289 (B.C.S.C.):  $200,000

Lee v. Dawson, [2006] B.C.J.
No. 679 (B.C.C.A.):  $294,600

Coulter v. Ball, [2005]
B.C.J. No. 732 (B.C.C.A.):  $284,000

Spehar v. Beazley, [2004] B.C.J. No. 1044 (B.C.C.A.): 
$280,000

[81]        
The awards in the last three cases listed were equal to the rough upper
limit at the time. The award in Moskaleva v. Laurie was a jury finding.

[82]        
The defendant acknowledged that Mr. Jarmson’s injuries were significant,
but emphasized that he has made a significant recovery, particularly from the
brain injury. It is submitted that on the evidence his cognitive function may
improve further now that he is free of the frustrations of trying to continue
his teaching career, and as his emotional health improves. These submissions
are also supported by the evidence.

[83]        
The defendant also submitted, and I agree, that Mr. Jarmson remains a physically
strong individual looking younger than his stated age.

[84]        
The defendant argues that the appropriate award for non-pecuniary
damages for pain and suffering and loss of enjoyment of life is $190,000. The
cases cited for comparison by the defendant are:

Kean v. Porter, 2008 BCSC 1594:
awarding $180,000;

Gilbert v. Bottle, 2011 BCSC
1389: awarding $200,000;

Harrington v. Sangha, 2011 BCSC 1035: awarding
$210,000;

[85]        
I have reviewed the facts and awards in each of the cases cited by the
parties. The constellation of injuries and the nature of non-pecuniary impact
is of course different from case to case, and none is the same as the case at
bar, but the most comparable of these cases establish an applicable range of
$200,000 to $245,000.

[86]        
I will not burden the reader with a case by case analysis, but of
particular interest is the Moskaleva case, where appropriate deference
was given to a jury award of $245,000, although the Court of Appeal commented
that it was “undoubtedly high and may not have been one this court would make”.

[87]        
The female plaintiff in Moskaleva was somewhat younger (53 at
trial) than Mr. Jarmson, but the residual effects of her brain injury were
quite similar and, like Mr. Jarmson, she was foreclosed by her brain injury
from a professional career. However, her physical injuries were less
significant than Mr. Jarmson’s.

[88]        
I find that the fair, reasonable, and appropriate award to compensate
Mr. Jarmson for his non-pecuniary losses is $230,000.

PAST WAGE LOSS

[89]        
The parties have agreed on an award of $55,000 USD, inclusive of
interest, for lost wages from teaching employment. At issue is a further amount
claimed for earnings from freelance photography done for CAR Middle East
magazine. Mr. Jarmson’s evidence that he earned $500 per shoot twice a month
was supported by an unsigned “To Whom it May Concern” letter dated October 5,
2008 purporting to be from Shahzad Sheikh, Editorial Director, which was
admitted into evidence without great concern as to its authenticity, perhaps
because there were telephone numbers provided in the letter, which would have
enabled counsel to verify its authorship. This letter confirmed that Mr.
Jarmson regularly contributed to the magazine as a freelance photographer and
averaged 2 shoots a month at a cost of $500 USD per [photo] shoot.

[90]        
The plaintiff claims $1,000 USD per month loss for the 32½ months he
would have been in Dubai and available between September 2008 and the date of
trial. I am satisfied that Mr. Jarmson would probably have continued to get some
photo shoots. The evidence from the magazine publishers could certainly be stronger
as to the ongoing constancy of the need for Mr. Jarmson’s contributions. I
infer there would have been transportation and setup costs associated with
earning this income. I will award a further $30,000 USD of past wage loss on
account of photography sales, inclusive of interest, which brings the past wage
loss award to $85,000 USD.

LOSS OF FUTURE EARNING CAPACITY

[91]        
The plaintiff takes the position that his loss of future income is a
certainty that can be measured by valuing the compensation package at American
School of Dubai which was lost to him when he was forced to retire years
earlier than he planned to. The evidence establishes that he is competitively
unemployable. He does not have any vocational plans. His evidence is that his
dream is to have a home studio and pursue his artistic hobbies.

[92]        
The plaintiff’s economist, Robert Carson, prepared his report on the
stated assumption that Mr. Jarmson is not capable of maintaining any form of
competitive employment. Mr. Carson calculated the present value of Mr.
Jarmson’s lost future income stream, on the assumption he would work until age
67, at $957,073 USD. On the assumption that he would have retired at age 65
(effectively July 31 2017) absent the accident, the present value would be
$763,451 USD. The components of the compensation package valued by Mr. Carson
were: basic salary, cost of goods and services allowance, housing allowance,
utilities allowance, pension, and stipend. He also included annual income of
$11,000 from freelance photography. The annual total of these components is
$126,240 to $127,553 USD.

[93]        
The defendant takes issue with the plaintiff and Mr. Carson including
the Cost of Goods and Services Allowance and the housing allowance in his
calculations. The defendant also takes issue with the assumptions of a
retirement age of 67 and of Mr. Jarmson having no residual earning capacity in
his injured state. The defendant’s economist, Mr. Douglas Hildebrand, used
basic salary, plus pension, stipend, and photography, which totalled $68,072 to
$70,909 per annum. By his calculation, the present value of that future income
to age 65 is $357,498.

[94]        
On the issue of whether the Cost of Goods and Services Allowance should
be treated as part of his salary or as a true offset of additional costs in
Dubai, I have no reason not to accept the evidence of Dr. Fleetham and Mrs.
Jarmson. They both testified that it is intended to be part of the salary
package and that costs in Dubai, other than for housing and utilities, are not
commensurately higher than in Canada. Housing and utilities allowances are
separate matters, and they are much costlier in Dubai. It appears that the
allowance was originally designed to attract United States teachers and Dr.
Fleetham was clear that the school saved money by continuing its designation as
something other than salary, because the pension contribution is not paid on
that allowance. I find therefore that the Cost of Goods and Services Allowance
should be included in the calculation of earnings lost.

[95]        
I agree with the defendant and his economist Mr. Hildebrand that the
Dubai housing allowance should not be included in the circumstance that the
Jarmsons have returned to Canada. The compensation package included the cost of
housing, which was paid to the landlord, rather than being an allowance paid to
them to spend in their discretion. Their housing cost in Canada should be
substituted for the $38,888. The same analysis applies to residential
utilities, which were paid in Dubai in the sum of $7,500.

[96]        
Mr. Jarmson and his wife are currently living in modest rented
accommodation in Nelson at a cost of $1,025 per month including utilities. They
will undoubtedly be accelerating their plans to build on their Proctor lot and
may well be living there in the near future, but I do not accept the
defendant’s argument that as soon as the house is built they will be in the
same position in respect of carrying the costs of a home in B.C. as they would
have been absent the accident. It is speculative to conclude that they would
have completed a home on the Proctor lot to a stage suitable for year round
occupancy so many years before retiring.

[97]        
The defendant is correct, however, in suggesting that from whatever
point in time, absent the accident, they would have finished the house and
assumed the cost of livable housing in B.C., the loss of the housing allowance
is no longer a loss; they will be living in a house that they would have been
paying for absent the accident. I will infer for the present purposes that
absent the accident the Proctor house would have been built and ready for
occupancy by the end of 2013. I will substitute the amount of $15,000 in the
place of the $38,888 housing allowance and $7500 utility allowance up to the
end of 2013.

[98]        
I will next address the issue of whether Mr. Jarmson has any residual
earning capacity.

[99]        
Dr. Gordon Wallace, rehabilitation psychologist and vocational
rehabilitation consultant, provided an assessment of Mr. Jarmson’s residual
employability potential and testified in addition to providing a written
report. Dr. Wallace provided several opinions from a rehabilitation psychology
perspective of which can be summarized as follows:

1.       It is not realistic for Mr.
Jarmson to return to work as a teacher, even on a part time or on-call basis;

2.       His physical and cognitive
disabilities effectively preclude him reverting to any of his previous
occupations;

3.       It is unlikely that Mr.
Jarmson would be able to successfully utilize his transferable work skills in
other jobs such as teaching assistant, or private art teacher, or direct entry
jobs, or low skilled sales and service oriented occupations;

4.       Formal educational training
programs or apprenticeship training would not provide a realistic vocational
plan for Mr. Jarmson in light of his age, and considering his physical
limitations.

[100]     In
addressing the questions of the likelihood of Mr. Jarmson being able to obtain
and maintain competitive employment, and identifying what occupational options
he could now consider, Dr. Wallace’s August 28, 2011 report states the following:

While acknowledging and respecting the court’s role in
determining an individual’s residual employability potential, from a
rehabilitation psychology perspective, the ongoing cognitive, psychological and
physical limitations that Mr. Jarmson experiences present significant
challenges to his ability to meet the basic foundational skills required to
maintain competitive employment. While it is possible that Mr. Jarmson would be
able to meet the basic foundational skills for employment, it is my opinion that
the likelihood of this occurring is less than 50%. It is my opinion that Mr.
Jarmson would require a sympathetic employer willing to make accommodations to
his employment duties (which as noted earlier would include a work environment
with minimal distractions, limited multitasking demands, limited need to meet
deadlines, limited computer input demands, limited interpersonal stimulation,
etc.), assistance to be available from co-workers/supervisors, as well as be
willing to tolerate emotional dysregulation (either with co-workers,
supervisors and/or customers). It is my opinion that the chances of an employer
providing such a supportive work environment are limited.

From a rehabilitation psychology
perspective it is my opinion that Mr. Jarmson’s better chance for vocational
activity would be through his art interests. He may be able to provide art
lessons/tutoring in his community but the financial compensation that you can
expect from such activities is difficult to identify. In addition, he could also
continue pursuing his own art related projects and may find a market for them.
However, I am unable to provide an opinion regarding the economic viability of
these pursuits.

[101]     The
defendant’s submission, which is consistent with Dr. Wallace’s opinions, was that
Mr. Jarmson’s best prospect for residual earning capacity is as a self-employed
artist and photographer. Dr. Wallace stated that he had no idea what Mr.
Jarmson could earn in that capacity. The website printouts from BC Work Futures
provide statistical data derived from the 2006 Census suggesting that the
category of artisans and craftspersons earned $18,682 full-time salary, with
only 36% of them working full-time. Painters, sculptors and other visual
artists earned full-time salaries of $23,219, but only 29% worked full-time.
Photographers made marginally more, at $26,733, (with 41% working full-time)
but the printout suggests that by comparison to the other categories, a smaller
proportion of photographers are self-employed.

[102]     I think
that there is a real and substantial possibility that Mr. Jarmson could earn a
very modest income from the sale of his art or photographs after a period of
set-up and production, and probably following the completion of the house he
and Mrs. Jarmson are planning to have built on their Kootenay Lake property. I
find therefore that he has some residual earning capacity. For the purposes of
calculating the present value of the income stream lost, I will impute a
residual annual income of $10,000 commencing with the current year.

[103]     Turning to
the issue of Mr. Jarmson’s retirement age, I find that notwithstanding his
dream to retire at 59, there was more reality in Mrs. Jarmson’s advice to him
that this would not be economically feasible. Mr. and Mrs. Jarmson clearly did
not have the pension entitlements or savings to be able to afford to retire and
build a house at that age. Although both daughters planned to return to Canada
for post-secondary schooling and have done so, Lindsay testified that she
considered Dubai to be their family home. Mr. Jarmson and his wife were both
employed at a new state of the art school facility. Mr. Jarmson was very
popular and loved his job, and they enjoyed their lifestyle. I find it
reasonable to infer that Mr. Jarmson would have continued to work as an art
teacher to July 31, 2017, just prior to his 65^th birthday.

[104]     The
following table sets out Mr. Jarmson’s anticipated annual earnings
incorporating the findings above. This is an adaptation of Mr. Carson’s Table
3-B in Exhibit 8:

[105]     Utilizing
Mr. Carson’s multipliers in Table 2 of his August 5, 2011 report, the present
values of those future annual sums are as follows:

2011:               11,954
x 998 = 11,929

2012:               94,877
x 980 = 92,979

2013:               95,527
x 948 = 90,560

2014:               81,236
x 916 = 74,412

2015:               82,160
x 884 = 72,629

2016:               81,165
x 853 = 69,234

2017:               47,142
x 822 = 38,751

Total                                     $450,494

[106]     The
present value of Mr. Jarmson’s residual earning capacity assessed at $10,000
per annum to the same date of July 31, 2017 is, according to Mr. Carson’s
evidence, 10 x 5,213 = $52,213.

[107]     The
difference in present value between his lost income stream and his imputed
residual income stream is therefore $398,281.

[108]     As counsel
acknowledged, the law states that this is an assessment, not a mathematical
exercise. The case law states that while a comparison of pre and post MVA
income streams is useful, it is not the entire exercise, and the overall
fairness and reasonableness of the award must be considered.

[109]     There are
usually contingencies, both negative and positive, that could be factored into
the assessment of lost earning capacity. The actuarial evidence employed in
this discussion has taken into account statistical survival probabilities. My
findings have already incorporated a consideration of certain contingencies.
Neither party suggested any other specific adjustment for contingencies to
supplement the income stream analysis undertaken. I conclude that the negative
and positive contingencies are evenly balanced.

[110]     Rounding
the above differential to the nearest $5,000, I award Mr. Jarmson $400,000 USD for
loss of future earning capacity. In my view that is an award that is fair and
reasonable for both parties.

[111]     A claim
was put forward on behalf of Mrs. Jarmson for consequential loss of future
income on the basis that the forced retirement of Mr. Jarmson and repatriation
of the family interrupted her income flow. That fact is self-evident, and I
will later discuss this claim together with the claim for an “in trust” award.

COSTS OF FUTURE CARE

[112]     The
parties are a great distance apart in their positions on this head of damages. The
plaintiff claims $858,742, on the basis of recommendations for care and
equipment and services contained in a report of Janice Landy dated July 16,
2011and entitled Life Care Plan for Mr. Robert Jarmson.

[113]     Ms. Landy
is a registered nurse with over 40 years of clinical nursing experience. She
has practiced in the field of rehabilitation nursing since 1988 and maintained
certification as a specialist in that field since 1990. She completed a course
of studies in Life Care Planning through the University of Florida and
subsequently became certified as a Life Care Planner. The introduction to her
82 page report explains a Life Care Plan as follows:

A Life Care Plan based upon
published standards of practice, comprehensive assessment, data analysis and
research provides an organized concise plan for current and future needs for
individuals who have sustained traumatic or catastrophic injury. It is a
systematic methodology for identifying and qualifying the multi-dimensional
disability related requirements of an individual. The process considers the
needs of the individual dictated by the nature and extent of the injury, the
age of the client, the recommendations of medical and rehabilitation team
interventionists, the effects of ageing and the theoretical framework
formalized and outlined by the World Health Organisation (“WHO”) under the
International Classification of Functioning, Disability and Health (ICF). This
construct has been developed to focus on the level of human functioning rather
than on the level of disability alone. Functioning refers to all body
functions, activities and participation while disability is an umbrella for
impairments, activity limitations and participation limitations. This
classification of function which provides for an assessment of needs encompass
not only medical needs but also the needs of the individual to overcome
barriers to participate in societal and personal activity.

[114]     This
description of a Life Care Plan, and particularly the last sentence of the
quoted passage, certainly provides traction for Mr. Hemmerling’s submission
that Ms. Landy’s described approach has been rejected in the jurisprudence in
British Columbia, specifically in the seminal case of Milina v. Bartsh
(1985), 49 B.C.L.R.(2d) 33 (BCSC), and in the dozens of subsequent cases citing
the words of McLachlin J. as she then was, contained within the following paras.
in Milina:

198      If there was any doubt as to whether the award for
cost of future care must be justified on a medical basis, it was dispelled by MacDonald
v. Alderson, [1982] 3 W.W.R. 385, leave to appeal to the Supreme Court of
Canada refused. In that case it was suggested that the plaintiff, a
quadriplegic, should be awarded sufficient funds to purchase and maintain his
own house on the non-medical grounds that this would give him a greater sense
of " ‘autonomy, privacy, financial stability and pride of ownership . . .
and greater opportunities for gardening, owning a pet, and more space for
hobbies’ ". The Manitoba Court of Appeal rejected this evidence as
"subjective theorizing" and reduced the award made at trial. The test
for determining the appropriate award under the heading of cost of future care,
it may be inferred, is an objective one based on medical evidence.

199      These authorities establish (1) that there must be a
medical justification for claims for cost of future care; and (2) that the
claims must be reasonable. On the latter point, Dickson J. stated in Andrews
at p. 586:

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

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

201      It follows that I must
reject the plaintiff’s submission that damages for cost of future care should
take into account the cost of amenities which serve the sole function of making
the plaintiff’s life more bearable or enjoyable. The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health. At the same time, it must be recognized that
happiness and health are often intertwined.

[115]     The
defendant’s closing submission listed 20 items recommended by Ms. Landy that
the defendant argued were not medically supported by any evidence at trial. I
agree with that submission. Many of those items would require very significant
outlays, for example, a van with a lifting device to transport an anticipated
power mobility device.

[116]     Mr.
Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality
and objectivity and her reliance on facts and opinions not in evidence, and
criticizing her for travelling to Dubai to interview witnesses already
interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I
would not go so far as to agree that  Ms. Landy became an advocate specifically
for the plaintiff in this case, but it is a fair comment that she seemed to
advocate an expansion of the types of items and services claimable as future
care costs under the law.

[117]     Ms. Landy
did rely on facts, opinions and assumptions not in evidence, and in some
instances her costing displayed a discomforting lack of care. An example of the
latter is her costing of Dragon Naturally Speaking voice recognition software
and instruction at $2,500 when that software and an instructional disc are readily
available for $99, as advertized on the distributor’s website.

[118]     Ms. Landy
acknowledged during cross-examination that she would defer to the contrary views
of Dr. Travlos or other doctors in respect of some of her recommendations, such
as recommending laser eye surgery to avoid the problem of dropping or damaging
contact lenses due to hand tremors which Dr. Travlos cannot attribute to his
injuries.

[119]     Ms. Landy’s
Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far
beyond what is reasonable. For example, her recommendation of one-to-one
rehabilitation support for 10 hours weekly, (essentially to replicate what his
wife, who has been his constant workout partner, has always done) is
unsupported by medical opinions other than her own, and would cost $21,600 per
year. The present value of that expense alone is over $338,000. With all its
shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in
my assessment, other than to provide a checklist for comparison and
thoroughness.

[120]     The
defendant produced a functional capacity evaluation and cost of future care
report prepared by Lydia Phillips, Occupational Therapist, dated September 27,
2011. The plaintiff was assessed by her on September 13 and 14. Ms. Phillips
sets out in her report the difference between her approach and Ms. Landy’s,
acknowledging that the general picture of Mr. Jarmson that Ms. Landy presents
is very different from her own functional assessment of Mr. Jarmson, most
notably in the areas of mobility and cognition. In other words she feels that
Ms. Landy overstated his level of disability. I agree.

[121]     I was very
impressed with Ms. Phillips’ objectivity and thoroughness. Although a
defendant’s expert in this case, she has frequently worked for plaintiff’s
counsel. She did not come across as trying to minimize Mr. Jarmson’s
disability, and seemed appropriately concerned that the necessary components of
his future care were considered and provided. Her report provides a detailed
discussion of various items and the reasons why she agrees or disagrees with
the comparable recommendations of Ms. Landy. I accept her recommendations nearly
in their entirety and consider them fair and generally sufficient, with the
exceptions I will later mention.

[122]      Ms.
Phillips sets out her recommended costs in table form at pages 21 and 22 of her
report, which I reproduce here:

[123]     One item
that Ms. Phillips did not recommend which I find should be awarded is
anticipated transportation and lodging costs that would accompany possible
future knee replacement surgery and follow up physiotherapy. My prior finding
was that there is a strong possibility of this occurring sometime during Mr.
Jarmson’s lifetime. Taking the contingencies into account I would notionally estimate
those costs at $2,000 to $3,000 and value them as if incurred in year 10.

[124]     It is
noted that Ms. Phillips recommended funding to replace the labour that Mr.
Jarmson would have contributed to his new home construction, but she was not
able to accurately estimate the amount of work that would be involved. The
court must venture an estimate, and I would estimate this component as 10 hours
per week for 12 weeks at $25 per hour, which amounts to $3,000.

[125]     Another
amendment that I will make to her recommendations is to change the hourly cost
of psychological counselling from $150 per hour to $175 per hour, because Ms.
Phillips deferred to counsel’s suggestion that a new tariff was in effect. She
may also have underestimated the costs of physiotherapy in regions outside of
Vernon.

[126]     One
further item I differ with Ms. Phillips on is the memory foam mattress. Dr.
Norton’s letter provides some medical support for that item and she attempted
to assist Mr. Jarmson by recommending that item. There is a wide range of
prices for memory foam mattresses, and the price set out in Ms. Landy’s report
is in the reasonable range.

[127]     Once
again, this is an assessment, not a mathematical calculation. Mr. Hildeband
provided mathematical calculations projecting the value of Ms. Phillips’
recommendations at both the low end of estimated ranges and the high end of the
estimated ranges. The results were $86,655 and $96,052 respectively. The
amendment in the hourly cost of psychological counselling increases the year 1
cost by $650 and the present value of ongoing costs by $4,188, according to my
calculations using the multiplier provided by Mr. Hildebrand.

[128]     Given the
inexorable trend for the cost of goods and services to increase rather than
decrease, I find that it is probably more realistic to use the higher end of
the calculated range as the starting point.

[129]     Taking my
additions to Ms. Phillips’ recommendations into account. I assess the cost of
future care at $110,000.

IN-TRUST CLAIM FOR KAREN JARMSON

[130]     In Frer
v. De Moulin, 2002 BCSC 408, an award under this head was made in the
amount of $100,000 for the services of the plaintiff’s wife prior to trial and
no award was made for future services because the claim was not pleaded and the
evidence did not directly address that subject.

[131]     The
plaintiff seeks a similar quantum here. The defendant suggests an appropriate
award is in the range of $20,000.

[132]     Mrs.
Jarmson’s constant and detailed care of Mr. Jarmson over the past 3 years was
remarked upon by several independent witnesses, corroborating the evidence of
the Jarmson’s. She cared for him like a nurse or caregiver on a full-time basis
from his discharge from hospital in August 2008 until January 2009. Since then
she has spent time every day keeping him organized and supervising his
rehabilitation. I am satisfied that she has spent countless hours providing
necessary assistance that he would not have required but for the accident and
which are over and above what would be expected of a family member absent the
injuries. Her work will not end with the trial, but will continue for the rest
of their joint life together. I rejected Ms. Landy’s recommendation of a
one-to-one rehabilitation support person who would have replicated Ms.
Jarmson’s assumed duties in that connection, noting that the present value of
that cost would be over $338,000. Notwithstanding my rejection of that
recommendation, it is clear that Mrs. Jarmson’s services in that regard are necessary
and valuable.

[133]     I would
award $110,000 for this claim combined with the claim advanced for Mrs.
Jarmson’s interrupted outside earnings.

THE CLAIM FOR LOSS OF HOMEMAKING CAPACITY

[134]     In my view
there should not be an award under this head of damages in this case for two
reasons. Firstly, I am unable to identify what household chores or functions
Mr. Jarmson previously performed (or would have performed in the absence of
their live-in housekeeper) that he is now unable to perform, and that have not
already been compensated by including handyman services in the cost of future
care, as recommended by Ms. Phillips. Secondly, to the extent that a claim
under this head of damages is intended to compensate non-pecuniary aspects of
the loss of capacity to do some homemaking services, I see it as seeking double
recovery. The general damage award is intended to cover all losses of enjoyment
of life that are the result of the injury.

SPECIAL DAMAGES

[135]     There was
agreement on $136,811.22 of special damages at the outset of the trial, of
which, according to submissions, $128,555.66 is in US dollars. The defendant
conceded that a further $1,872.59 for a computer has been made out. Remaining
in issue are $212.74 for hiking boots, $4,100 for rental housing in Nelson from
August 1, 2011 to November 30, and $2,082.20 for the estimated costs of
replacing Mr. Jarmson’s Harley Davidson clothing and accessories.

[136]     The claim
for the hiking boots has not been made out.

[137]     I will
allow the housing claim, which is consistent with my treatment of B.C. rental
costs as part of the future losses. I see no merit in the defendant’s
suggestion that this is unfair to the defendant because the Jarmson’s could
live in their condo in Victoria. Absent the accident, they would have returned
to Dubai in August. The Victoria condo is their property, but it is their
daughter’s home. They were forced by the accident to advance their plans to
build a home in the Kootenays, and that is their chosen locale. It is
unreasonable to expect them to bear the costs of travelling back and forth from
Victoria to supervise the construction of their house.

[138]     There
would presumably be no issue about the payment for the loss of the Harley
Davidson clothing and accessories if they had been replaced. The claimed costs
are based on Mr. Jarmson’s internet research. I can understand that Mr. Jarmson
may not have wanted to incur that expense far in advance of having a motorcycle
to ride, or even finally deciding that he is ready to ride again. If he did not
intend to ride again, his loss would not be equivalent to the new replacement
cost of these destroyed items, but his evidence is that he intends to ride
again. I will allow the claim for the Harley Davidson gear.

[139]     The
special damages award is therefore $128,555.66 USD plus $16,310.35 CAD.

SUMMARY OF AWARDS

[140]    
Counsel may request a hearing, if necessary, to deal with the deferred
matters of income tax gross-up, management fees, and costs.

“I.C.
Meiklem J.”

MEIKLEM
J.