IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121009

Docket: M082675

Registry:
Vancouver

Between:

Shuk P. Yick also
known as Loretta Yick

Plaintiff

And

Nils
Christopher Johnson, Andrew Gerald Falk, Andrew Gerald Falk doing business as
Hazelmere Roofing, Canadian Road Leasing Company/Compagnie de Location Canadian
Road and Leung-Wing Li also known as Martin Li

Defendants

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
On October 21, 2006, the plaintiff Loretta Yick was severely injured in
a motor vehicle accident. At the time of the accident, Ms. Yick was sitting in
the front passenger seat of a car being driven by her husband, the defendant
Martin Li. They were on their way to a dinner out. At approximately 6 p.m. Mr.
Li entered the intersection of Lougheed Highway and Dewdney Trunk Road in
Coquitlam. While the Li car was in that intersection, it was struck on the passenger
side by a Ford F250 pickup truck (the “Truck”) being driven by the defendant,
Nils Christopher Johnson.

[2]            
The Truck was owned by the defendant Canadian Road Leasing Company, and
was leased to the defendant Andrew Gerald Falk. In these reasons, I will refer
to these defendants as the Johnson Defendants. Mr. Johnson was employed by Mr.
Falk and was driving the Truck in the course of Mr. Falk’s business, Hazelmere
Roofing, with Mr. Falk’s permission. At the time of the accident. He was
returning to the business premises of Hazelmere Roofing in Surrey from a job he
had worked on that day.

[3]            
Ms. Yick seeks to recover damages for her injuries. As liability as
between the defendants is disputed, it is necessary to review the evidence of
the circumstances leading up to the collision.

[4]            
Ms. Yick has no recollection of the events immediately preceding the
accident. Mr. Li testified that on October 21, he and his wife were driving
from their home in Port Coquitlam to a restaurant in Port Moody. He testified
that they had left their home approximately five minutes prior to arriving at
the intersection, which is a major intersection controlled by traffic lights.

[5]            
Mr. Li testified that as he approached the intersection from the east on
Dewdney Trunk Road, the light for westbound traffic on Dewdney Trunk Road
changed from green to amber. He was approximately one to two car lengths from
the intersection when the light turned amber. He testified that he took a quick
look in his rear-view mirror and saw that there were no cars behind him so he
was able to stop his vehicle and wait for the next green cycle of the lights.

[6]            
Mr. Li stated that when the light for traffic on Dewdney Trunk Road
turned green, he checked to his right and left and then proceeded to slowly accelerate
through the intersection. He said that he also did a quick check to his right
at about the mid-point of the northbound lane on Lougheed Highway but did not
observe any apparent danger. Mr. Li then proceeded through the intersection
until he reached a point between the curb and centre through southbound lanes
of the Lougheed Highway.

[7]            
Mr. Li testified that when he reached that point, he became aware of the
Truck but was only able to turn his head thirty degrees before there was an
impact. Mr. Li momentarily lost consciousness. His next recollection is of
waking up in the vehicle which had come to a rest at the southwest corner of
the intersection. At that point, Mr. Li became aware that Ms. Yick was
unconscious. He called out to her but was unable to revive her. Within minutes
assistance arrived and Mr. Li was assisted in getting out of his vehicle.

[8]            
Mr. Li’s evidence is that he was unaware of the Truck until a split
second before the impact. He does acknowledge that he had a clear view of the northbound
lanes on the Lougheed Highway but says that he was unaware of any danger, or
the presence of the Truck, until immediately before the collision with his car.

[9]            
Mr. Li’s counsel called two independent witnesses who observed the
accident.

[10]        
Mr. Allen Crocket was driving westbound on Dewdney Trunk Road
immediately before the accident. He testified that as he approached the
intersection of Dewdney Trunk and Lougheed, he observed the GMC Tracker being
driven by Mr. Li proceed into the intersection on the green light and slowly
accelerate through the intersection. Mr. Crocket testified that the light was
green for westbound traffic on Dewdney Trunk Road as he approached the
intersection and saw the GMC Tracker, which was two vehicles in front of him,
proceed into the intersection.

[11]        
Mr. Crocket said that he then observed a Ford F250 pickup proceeding
southbound on Lougheed enter the intersection. At the time the Truck entered
the intersection, the light was green for traffic on Dewdney Trunk Road. Mr.
Crocket testified that on observing the Truck enter the intersection against
the light, he brought his vehicle to a stop. He testified that he did not hear
the squealing of any tires or the sound of any brakes being applied. In his own
words, he said that the drive of the Truck did not seem to notice that there
was an intersection. He said that he saw the Truck strike the passenger side of
the Tracker.

[12]        
In cross-examination Mr. Crocket agreed that he had a clear view of the
intersection from Dewdney Trunk Road from where his vehicle was located,
immediately to the east of the crosswalk. He said that he noticed the Truck when
he was five to ten metres from the crosswalk. He stated that the Truck appeared
to be driving at what he referred to as “highway speed” but not exceeding the
posted speed limit for that portion of the road.

[13]        
Mr. Sam Safaei testified that he was driving a vehicle that was stopped
at the red light in the southbound left turn lane on Lougheed Highway waiting
for the light to turn green to allow him to make a left hand turn onto Dewdney
Trunk Road. Mr. Safaei testified that it was overcast, that there was still
some light, it was not raining and that the visibility was good. He testifies
that the light was red for all three lanes of southbound traffic on Lougheed
Highway while he was waiting. Mr. Safaei says that while he was waiting, he
noticed a light coloured pickup truck pass him and proceed into the
intersection in the curb southbound lane. He says that the red light at that
point had been on for some seven to ten seconds. He estimated the speed of the Truck
at between 50-70 kilometres per hour. He says that he did not hear any noise
such as the sound of a car braking or tires skidding. In his evidence he was
quite definite that the Truck entered the intersection against a red light. Mr.
Safaei also testified that the collision between the Truck and the GMC Tracker occurred
quite quickly, he estimates in one or two seconds after he saw the Truck. He
was unable to see any brake lights go on on any of the vehicles.

[14]        
Mr. Johnson gave a markedly different version of what occurred. Mr.
Johnson testified that he was driving the Truck southbound on the Lougheed
Highway. As he approached the intersection of Dewdney Trunk Road he had the
green light. However, just as he was about to enter the intersection the light
changed from green to amber. Mr. Johnson says that he decided it was safer to
proceed through the intersection than come to a sudden stop. He says he entered
the intersection on the amber light and was proceeding through when he suddenly
noticed the GMC Tracker approaching him from his left. He says he swerved to
try to avoid a collision but did not have time to do so. In his evidence he
characterized what happened as the Tracker hitting his vehicle. He stated that
the Tracker appeared to be going at a high rate of speed and “gunning it” to
clear the intersection.

[15]        
I do not accept Mr. Johnson’s evidence as to what occurred at the time
of the accident. I prefer the evidence of the two independent witnesses that Mr.
Johnson entered the intersection against a red light at a speed approximating
the posted speed limit on the Lougheed Highway. I find it likely that Mr. Johnson
was distracted by trying to find a route to return to Surrey and that he simply
did not notice that he was proceeding against a red light.

[16]        
In addition to the direct conflict between his evidence and that of the
two independent witnesses, I found Mr. Johnson to be a somewhat unsatisfactory
witness. His memory of what occurred at the time of the accident was vague. While
I can appreciate that some considerable time has elapsed between the accident
and the trial, I found it remarkable that Mr. Johnson had a vague recollection
of so many things about the accident, but was able to give definite evidence
that he entered the intersection just as the light turned to amber, and that it
was Mr. Li’s vehicle that struck his truck. His evidence that he attempted to
swerve is not supported by the points of impact: the front of his truck and the
passenger side door of Mr. Li’s. In addition, I find that his evidence that the
GMC was “gunning it to clear the intersection” is contradictory to his evidence
that the light for Lougheed traffic was green as he approached the intersection
and turned yellow just as he entered the intersection.

[17]        
On the other hand I found the evidence of the independent witnesses to
be honest and reliable. Both were well placed to observe what happened and gave
definite evidence that Mr. Johnson’s Truck ran a red light. Their evidence is
consistent with that of Mr. Li that he waited for a green light before entering
the intersection.

[18]        
I therefore conclude that Mr. Johnson proceeded through the intersection
against the red light at a speed of 50 to 70 kilometres per hour and that his
truck hit Mr. Li’s vehicle broadside on the passenger side door.

[19]        
Given these findings of fact, there is no doubt that Mr. Li had the
right of way at the time of the collision. This, of course, is not
determinative of liability and in particular does not preclude a finding that Mr.
Li was negligent and that that negligence was a cause of the accident.

[20]        
The weight of authority has established that a driver of a vehicle
lawfully proceeding through a green light at an intersection has only a very
limited duty of care to drivers who unlawfully proceed on a red. In Wong v.
West, [1959] B.C.J. No. 45, 30 W.W.R. 526 [Wong], the Court of
Appeal stated the law as follows at 527-528:

The sole question to be determined on this appeal then is
whether or not the learned judge below was in error in finding the appellant to
have been negligent. In my view he, in any event, placed too great a burden
upon the appellant when he said, "A prudent driver would have been careful
not to pass a car in that position unless he was certain that nothing
was going to appear from behind it into his path." (My italics). The duty
of the appellant was to exercise due care and the question is whether or not
under the circumstances here he failed to do so. In my view, having the green
light with him, travelling on a six-lane marked street he was entitled to proceed
as he did and should not have been found negligent. He owed no duty to traffic
entering the intersection in disobedience to the lights, beyond a duty that, if
he in fact saw such traffic, he ought to take all reasonable steps to avoid a
collision. See Joseph Eva Ltd. v. Reeves [1938] 2 KB 393, 107 LJKB 569,
[1938] 2 All ER 115, referred to with approval by the Supreme Court of Canada
in Mathieson v. Thompson (sub nom. Johnston National Storage v. Mathieson)
[1953] 2 DLR 604, reversing (1952) 4 WWR (NS) 600. See particularly Cartwright,
J. where at p. 614 he said:

 "As was pointed out by
Scott, L.J. in Joseph Eva Ltd. v. Reeves [supra] at p. 405, all traffic
regulation has two main purposes, the first to insure safety and the second to
promote the free circulation of traffic. To hold that the driver of a vehicle
on a through highway who is proceeding on his right-hand side of the centre
line of the road and at a reasonable rate of speed must, on approaching an
intersection where his view to the left is obstructed, proceed on the theory
that a driver may emerge from his left into his path in total disregard of the
statutory rule would tend towards the paralysis of traffic rather than to the
promotion of its free circulation."

[21]        
The judgment in Wong was followed by the Court of Appeal in Horsman
v. McGarvey (1983), 43 B.C.L.R. 192 (C.A.) at 195 as follows:

In my opinion, the law to be applied in the present
circumstances, that is, when traffic at an intersection is governed by traffic
control signals, is correctly set forth in the judgment of DesBrisay C.J.B.C.
in Wong v. West, supra, when he said at p.528:

 In my view, having the green
light with him, travelling on a six-lane marked street he was entitled to
proceed as he did and should not have been found negligent. He owed no duty to
traffic entering the intersection in disobedience to the lights, beyond a duty
that, if he in fact saw such traffic, he ought to take all reasonable steps to
avoid a collision.

[22]        
Wong was also cited with approval in Lucas v. Antoniak, 15
C.C.L.T. 195 (C.A.).

[23]        
As recently as this year the Supreme Court
reiterated that rule in Annapolis County District School Board v. Marshall,
2012 SCC 27 at paragraph 7 as follows:

[7]        I agree with the
appellant that the Court of Appeal failed to appreciate the dual function of
statutory right-of-way provisions. Not only do such provisions inform the
assessment of whether a pedestrian was contributorily negligent by failing to
yield a right of way, they can also help determine whether a driver breached
the applicable standard of care in the circumstances. In this case, even though
Johnathan’s contributory negligence had been ruled out as a matter of law, the
statutory right-of-way provisions continued to inform the standard of care that
Mr. Feener owed to all pedestrians. The jury needed to be told that, absent
special circumstances, where the driver has the right of way, he or she can
reasonably proceed on the assumption that others will follow the rules of the
road and yield the right of way to drivers.

[24]        
Counsel for the Johnson Defendants submit that Mr. Li had the
opportunity to observe the approach of the Truck and should have been aware
that he was proceeding into the intersection against the red light. She relies
on the fact that Mr. Crockett observed the Truck going through the red light
from a position at approximately the cross walk at the eastern end of the
intersection. She also relies on Mr. Li’s evidence that he looked to his right
when he was half way across the intersection but saw nothing.

[25]        
I accept Mr. Li’s evidence that he did not see the Truck until
immediately before it hit his vehicle. I do not think that the fact that Mr. Crockett
saw the Truck proceed through the red light from his vantage point necessarily means
that Mr. Li either saw, or should have been aware that the Truck posed a threat.
No party called any expert evidence with respect to Mr. Li’s opportunity to
avoid a collision even if he had been aware that the Truck was running the red
light. There was no evidence as to the relative position of the vehicles when
each entered the intersection, and in particular, how far the Truck would have
been from the intersection when Mr. Li looked to his right.

[26]        
In the case at bar, I can see no special circumstances that would have
precluded Mr. Li from proceeding on the assumption that other vehicles would
yield the right of way to him by stopping at a red light at the intersection of
two major roads. In particular I find that Mr. Li did not observe Mr. Johnson’s
truck at any time within which he could have taken any steps to avoid the
collision. There was not sufficient evidence to lead me to conclude that he
could, by the exercise of reasonable care, have become aware that Mr. Johnson
was going to enter the intersection in sufficient time for him to take any
steps to avoid the collision.

[27]        
Accordingly, I find that the Johnson Defendants are solely liable for
Ms. Yick’s damages.

Damages

[28]        
Ms. Yick has no memory of the events that occurred before and for some
time after the motor vehicle accident. However, it is clear that as a result of
the accident she lost consciousness and was so seriously injured that it was at
first uncertain whether she would survive. The RCMP who attended at the
accident scene first made efforts to arrange for a helicopter to med-evac Ms.
Yick to hospital. However, the location of power lines in the vicinity of the
accident made it impossible for a helicopter to land at the scene. Ms. Yick was
accordingly taken by ambulance to Royal Columbian Hospital.

[29]        
Subsequent to her admission to Royal Columbian Hospital, Ms. Yick was
diagnosed as having the following injuries summarized in the report of Dr.
Gabriel Hirsch:

A severe traumatic
brain injury. CT scans showed bifrontal and right temporal haemorrhagic
contusions and subarachnoid haemorrhage. Follow up imaging studies of the brain
revealed resolution of the haemorrhagie contusions, but prominent ventricles,
indicative of loss of brain tissue.

A traumatic right
third cranial nerve palsy

Chest injuries
including multiple right-sided rib fractures, pulmonary contusions, bilateral
pneumothoraces requiring placement of chest tubes and right lung laceration,
which was managed operatively.

Tongue and scalp
lacerations which were sutured

Stable pelvic
fractures involving the right side of the sacrum with the fracture extending
into the right sacroiliac joint, the left and right inferior pubic rami and the
right hip socket

Fracture of the L5
transverse process

Right adrenal haemorrhagie contusion

[30]        
Dr. Patrick Chiu, orthopedic surgeon, summarized
her injuries as follows:

1.   Traumatic brain injury.

2.   Subarachnoid hemorrhage.

3.   Pulmonary hemorrhage.

4.   Bilateral pneumothoraces.

5.   Adrenal hemorrhage.

6.   Soft tissue injury to the neck.

7.   Right lung laceration and hemothorax with multiple rib
fractures.

8.   Right cranial nerve palsy.

9.   Scalp laceration.

10. Tongue laceration.

11. Orthopaedic injuries, which include:

•     Pelvic fractures involving the right acetabulum;

•       
Bilateral inferior pubic rami fractures;

•     Right sacrum fracture;

•     Multiple right rib fractures; and

•     Transverse
process L5 fracture.

[31]        
The severe traumatic brain injury suffered by Ms. Yick was not initially
treated surgically. Dr. Gittens, the attending neurosurgeon, placed an inter-cranial
pressure reading device to monitor her condition. Ms. Yick’s clinical recovery
was complicated by internal bleeding and reactive thrombocytosis. She received
twelve units of packed red blood cells at Royal Columbian Hospital.

[32]        
Ms. Yick was placed in an induced coma for approximately two weeks.
During her initial admission to Royal Columbian Hospital, Ms. Yick was treated
with a surgical craniotomy to decompress her subarachnoid haemorrhage. She was
also treated with an exploratory thoracotomy and surgical treatment with chest
tubes for her pulmonary bruising. No surgical intervention was undertaken with
respect to her orthopedic injuries.

[33]        
Ms. Yick was originally transferred from the ICU to a surgical ward at
Royal Columbian Hospital. After approximately one month she was transferred to
Eagle Ridge Hospital for rehabilitation. She was discharged from Eagle Ridge
Hospital on December 22, 2006, some two months after the date of the accident.

[34]        
After being discharged from Eagle Ridge Hospital, Ms. Yick gradually
recovered from her orthopedic and soft tissue injuries. For a time she required
the use of a cane to assist her with walking. However, eventually Ms. Yick was
able to walk without the assistance of any walking devices. The headaches that
she initially experienced gradually resolved themselves. At the present time
she no longer suffers from an unusual frequency of headaches.

[35]        
Her fractured ribs and pelvic fractures healed well within 6-12 months
of the accident.

[36]        
Unfortunately Ms. Yick has suffered very significant consequences from
the severe traumatic brain injury. In addition, the third cranial nerve damage on
her right side had a significant impact on the use of her right eye and has
resulted in permanent double vision. This impairment has resulted in Ms. Yick
experiencing significant difficulty in reading.

[37]        
Ms. Yick has suffered permanent cognitive impairment in the domains of
memory, attention, speed of information processing and, executive skills.

[38]        
Ms. Yick’s personality has also been dramatically changed as a result of
the accident due to trauma to her frontal lobes and its consequent impact on
her executive functioning. She has demonstrated impulsive behaviour and, in
particular, is prone to lashing out and outbursts of anger directed towards
other individuals, including her husband and members of her own family. She has
also become much more talkative and unpredictable since the accident. These
behaviour characteristics have undoubtedly alienated many of her former friends
and acquaintances, and together with her other cognitive impairments, have
contributed to increased isolation on her part.

[39]        
All of the medical experts are agreed that there is no prospect of there
being any improvement in Ms. Yick’s neurological deficits, although she may
achieve some further functional improvements through occupational therapy.

[40]        
Up to the accident, Ms. Yick was an effective, well adjusted and successful
individual. She and her husband lived together in a house in Port Coquitlam. They
married in the early 1990s after Ms. Yick emigrated from Hong Kong to join Mr.
Li in Canada. They had no children but did have two pet cats, one of which has
since died. By all accounts their marriage was a happy one.

[41]        
For approximately ten years prior to the accident, Ms. Yick worked as a
bookkeeper and kept track of the inventory for D.C. Computer Hospital Inc., a
business operated in partnership by her husband and others. Although no income
tax returns were put into evidence there was evidence that Ms. Yick was paid as
an independent contractor and filed her returns on that basis. At the time of
the accident she was earning $2,000 per month.

[42]        
Ms. Yick completed high school in Hong Kong. After completing high
school, she took courses in accounting and worked for various employers as a
bookkeeper.

[43]        
Prior to the accident Ms. Yick was well liked by her friends. She had a
circle of friends consisting mainly of fellow members of her church and members
of both her husband’s and her own extended families. She was also taking
advanced ESL courses at night school and had formed friendships with some of
her fellow students. All witnesses who testified about her pre-accident
personality described her as quiet, polite and cooperative. She was active in
her church, assisting her husband teach Sunday School and was a full-time
member of the church choir. She enjoyed playing table tennis and tennis. Meals
out with family and friends formed an important part of her social activities
prior to the accident.

[44]        
She also attended to most of the household chores, although her husband
did provide some homemaking assistance to her. She cooked all of the family
meals, although the couple often ate out as both were employed full time in the
family business. She assisted her husband, who was primarily in charge of
looking after the garden and yard. She also was largely in charge of keeping
track of the family finances.

[45]        
There is no dispute that the accident has resulted in a profound change
in Ms. Yick’s intellectual and cognitive ability as well as her personality.
Medical experts all agree that Ms. Yick has suffered a severe traumatic brain
injury which has caused these personality and cognitive changes.

[46]        
On the cognitive side, Dr. Gabriel Hirsh, a psychiatrist called by the
defendants, commented in his report as follows:

As a result of the severe traumatic brain injury, Mrs. Yick
has been left with permanent cognitive impairments as demonstrated on
neuropsychology testing. In addition, her personality has changed. She has
demonstrated impulsive behaviour, but predominantly her behaviours have been
characterised by lack of drive and motivation, indicative of front lobe
dysfunction.

Mrs. Yick lacks executive function including planning,
organisation, sequencing and self-monitoring. Her ability to problem solve is
compromised. Her mental processing speed is diminished and she manifests
slowness of thought.

These cognitive and behavioural
changes have arisen from her brain injury. Mrs. Yick’s ongoing activity
limitation and restricted participation in life roles that would have been
normal for her before the accident, reflect the cognitive impairments and
personality changes pertaining to the severe traumatic brain injury she
sustained in the subject motor vehicle accident.

[47]        
Dr. Samuel Yip is a neurologist whose opinion was tendered on behalf of
the plaintiff. Dr. Yip was of the opinion that Ms. Yick’s short term memory has
been impaired as a result of the motor vehicle accident, and that impairment is
likely to be permanent. In addition to the short term memory impairment, the
medical experts are agreed that Ms. Yick suffers from significant executive and
cognitive dysfunction as a result of the accident. Executive function is mainly
dependent upon the frontal lobe of the brain. Executive function includes the
cognitive ability to plan, initiate, execute and regulate behaviour. It is also
responsible for motivation and self-monitoring of efficiency and effectiveness
of past performance. Ms. Yick has suffered very significant impairment in these
areas as a direct result of the severe traumatic brain injury that she suffered
in the accident.

[48]        
I accept Dr. Yip’s opinion that Ms. Yick continues to demonstrate
executive dysfunctions, lack of mental flexibility and difficulties in
multitasking. She also lacks motivation as a direct consequence of her
executive dysfunction, which is in turn due to her bi-frontal lobe contusions.
What Dr. Yip describes as personality changes include anger outbursts, clinical
lack of motivation or “abulia” and slow thought processing or “bradythrenia”.

[49]        
All of these conditions are directly attributable to the severe
traumatic brain injury suffered by Ms. Yick in the motor vehicle accident.

[50]        
These injuries have had a profound effect on Ms. Yick’s life. They have
rendered her unemployable. They have made her largely dependent on others for
all but personal care and basic household tasks. Her behavioral and personality
changes have to a large extent isolated her from the social circle that she had
prior to the accident and have severely limited her ability to make new
friends.

[51]        
My conclusion that Ms. Yick is competitively unemployable is based on
the opinion of Mr. Derek Nordin, as well as the evidence of Mr. Li and other
co-workers who observed Ms. Yick’s several attempts to return to work after the
accident. The co-workers testified that Ms. Yick was unable to keep track of
the accounting for the company. In addition there was evidence of difficulties
that she had with customers and co-workers arising out of Ms. Yick’s lack of self
control.

[52]        
Ms. Yick is independent in matters of personal care. She is also capable
of preparing simple meals for herself and her husband, although it takes her a
considerable amount of time to prepare dinners. I accept Mr. Li’s evidence that
it takes her about three hours to prepare such meals. She is capable of and
does prepare her own lunches, but these often have a high degree of pre-preparation.

[53]        
I find that Ms. Yick is not able to look after the house. She does do
the laundry for herself and her husband but neglects house cleaning and
organization. An example of her difficulties in homemaking relates to the
strategy she used to discourage the family cats from jumping up on furniture. Ms.
Yick put household items on the chairs and furniture so that there was no place
for the cats to jump up. This however resulted in an extremely cluttered and
untidy house. In addition, Ms. Yick leaves cooking utensils and
ingredients out of cupboards because she would otherwise have difficulty
finding them. The description of the family home given by Ms. Alison McLean in
her August 21, 2009 occupational therapy report illustrates the chaos and
disorganization in the family home.

[54]        
Ms. Yick does not leave the house on her own. There is some dispute
about the reason for this that I will deal with when I consider the claim for
cost of future care. However it is clear that Ms. Yick does not leave home
unless she is accompanied by another person. She is not capable of operating a
motor vehicle because of her cognitive problems which are aggravated by her
double vision. Mr. Li testified that he does not think Ms. Yick could safely
use public transportation given her difficulties with problem solving.

[55]        
Ms. Yick does participate in a number of activities. An elderly friend
takes her to a Bible study group on Thursday mornings. Another friend takes her
to line dancing classes on Saturdays. Although she is no longer a regular choir
member she does sing with a group once a month at church. She and her husband
do attend church services on Sundays. In addition her husband takes her out for
lunches, and less frequently, for dinners in restaurants. Her husband and other
family and church members also take Ms. Yick shopping at nearby shopping malls.
Ms. Yick is able to participate in these activities and does find them
enjoyable.

[56]        
These activities however, occupy only a small percentage of her time. Much
of her waking hours are spent alone in the family home. There she spends much
time playing card games on the computer. In addition, as outlined above, she
spends a good deal of time preparing meals. Although Ms. Yick can read both
English and Cantonese, she finds it difficult to do so given her vision
problems. I also have no doubt that her cognitive and concentration
difficulties are an impediment to reading as a recreational activity for her.

[57]        
Mr. Li stated that Ms. Yick does enjoy going on cruises. He stated that
cruising was well suited to Ms. Yick’s needs because there is predictable
routine on board a cruise ship, that Ms. Yick had ready access to their state
room to rest and that a cruise ship of course provided a controlled and limited
environment. Once Ms. Yick recovered from her physical and orthopedic
injuries, the couple went on a number of cruises and organized bus group tours.
These trips were usually done with a group of friends from the church. Mr. Li
testified that travelling in such a group made it easier to make sure that Ms. Yick
did not wander off because the whole group can help to keep watch over her.

[58]        
I need not refer in detail to the other medical reports. A remarkable
feature of this case is the broad degree of consensus among the physicians who
have provided opinions. This consensus includes broad agreement that Ms. Yick
is competitively unemployable and will require some assistance for the rest of
her life in order to enable her to maximize her remaining abilities.

[59]        
I find that as a direct result of the injuries that Ms. Yick suffered in
the motor vehicle accident, she has lost the ability to be competitively
employed and the ability to operate a motor vehicle. In addition, as a result
of her compromised executive function, I am satisfied that Ms. Yick could not
live independently. At present, her husband Mr. Li is providing considerable
assistance to her. With the benefit of this assistance, Ms. Yick is able to
live at home, albeit at a significantly impaired level from her pre-accident
condition.

[60]        
Before turning to an assessment of non-pecuniary damages I wish to make
some observations about the evidence in this case. I start by saying that I
found Mr. Li to be a credible and reliable witness. I reject the
defendant’s submission that he exaggerated the extent of Ms. Yick’s
difficulties. Mr. Li is Ms. Yick’s husband and to a large extent her support
worker. He must deal on a daily basis with her well documented executive and
cognitive difficulties. If anything, I found his description of her
difficulties to be restrained and conservative when considered in the context
of the medical evidence and the observations of Ms. McLean at the family
residence. The clear impression I got from Mr. Li’s evidence was that he was
reticent to criticize his wife’s behaviour and abilities. I therefore consider
him to be a reliable and restrained source of information about Ms. Yick.

[61]        
In this case I have also taken into account the limitations on Ms. Yick
as a reliable reporter of her own condition. Those limitations are addressed in
medical reports from Dr. Kaushansky dated November 21, 2011 and Dr. Zoffmann
dated October 27, 2011. In his report, Dr. Kaushansky states as follows:

With regard to her ability to
withstand the rigors of a long trial, I believe that Mrs. Yick would become
anxious, easily taxed and her responses on the stand may not be accurate or
reliable, given her weak cognitive skills, including poor memory and diminished
insight (with probable unintended confabulation) and her wish to please.

[62]        
Dr. Zoffmann described Ms. Yick as follows:

Mrs. Yick shows that she has trouble retaining information
that is important and relevant about her finances and the current legal
proceedings. She becomes impatient and cannot tolerate being interviewed for
more than an hour. This restlessness is also described by her husband. The
interview process showed that she could not retain important information about
the purpose of the interview for more than 10 to 15 minutes.

She is quite confused as to the roles of the various people
managing her affairs. She thought that I would be in control of her lawyer. She
thought that Mr. Lam would be her financial manager and that I and a
psychologist would be managing her finances as well.

She has memory lapses and fills in the gaps with what she
thin[k]s is appropriate. She does not seem to carry information forward and
both of these characteristics are problematic when one thin[k]s of the need to
instruct counsel during trial, testifying at trial and being able to listen to
what witnesses say and remember so as to compare the information with what is
already known/remembered.

Her short attention span and her
fatigability will pose significant problems for the orderly conduct of a trial.
I understand that she displayed this [behaviour] at the mediation process as
well – having to leave the room repeatedly due to impatience and restlessness.

[63]        
In considering Ms. Yick’s capabilities and limitations, I therefore
think it is more useful to consider the evidence of others, including her
husband, than to rely on Ms. Yick’s own assessment. I am satisfied that she
lacks insight into her own limitations and deficits. I conclude that Ms. Yick’s
lack of insight causes her to overestimate her abilities, underestimate her
limitations, and to fail to appreciate the impact that her behavioural
outbursts have had on her relationships with others.

Non-Pecuniary Damages

[64]        
I find that Ms. Yick has been profoundly affected by the injuries she
suffered in the accident.

[65]        
Prior to the accident, Ms. Yick’s life revolved around work, her
relationship with her husband, her family and her church.

[66]        
Before the accident, Ms. Yick worked a regular work week at the computer
repair business owned in part by her husband. Her workmates described her as
friendly, competent and reliable. As a result of the accident she is no longer
employable.

[67]        
Similarly, before the accident Ms. Yick was responsible for most of the
household tasks in the home she shared with her husband. She also managed the
family’s finances and did most of the shopping for the household. She assisted
her husband with his parents by arranging meals out with them. I accept Mr. Li’s
evidence that Ms. Yick did a capable job of managing all those tasks. However
after the accident, Ms. Yick is no longer capable of managing many of these
tasks. I am satisfied that she is able to continue to live independently only
through the assistance of her husband, other members of her church and her
sister.

[68]        
She still does prepare the evening meals for her husband and herself but
requires a very long time to do so. It is apparent from the evidence of Mr. Li,
and the observations of Ms. McLean, that she can no longer manage to run the
household or independently do the family shopping. She cannot manage the
finances of the family.

[69]        
Ms. Yick’s relationship with her family has also suffered as a result of
the accident. Before the accident she visited her family in Hong Kong on
regular basis. She was able to travel to Hong Kong on her own. However since
the accident, she has developed problems with one of her sisters. On the one
occasion when she traveled to Hong Kong without her husband, she had an
incident in which she bit that sister, which required Mr. Li to travel to Hong
Kong to bring her home. Before the accident Ms. Yick regularly had meals out
with Mr. Li’s parents but no longer does so.

[70]        
Ms. Yick’s role in the church has also been significantly impacted by
her injuries. Before the accident she was a regular member of the church choir
and assisted her husband in teaching Sunday school. She now sings only once a
month in church with a small group of singers. She does not teach Sunday school.
Ms. Yick does participate in a weekly bible study class even though that class
is usually open only to Sunday school teachers. She does enjoy this activity. A
friend and fellow church member, Dr. Wong, picks her up and drives her to the
class. Occasionally she has lunch with Dr. Wong and his wife after the class
and sometimes they go shopping.

[71]        
Dr. Wong described in his evidence how he and his wife keep watch over
Ms. Yick when she is shopping to make sure that she is safe. I am also satisfied
that she is able to attend the bible study class only through the assistance of
Dr. Wong.

[72]        
On Saturdays, Ms. Yick does attend line dancing classes. She testified
that she enjoys these classes. She is driven to these classes by a friend, Sui
Ling Lam, and is picked up afterwards by her husband who takes her out for
lunch.

[73]        
Since the accident, Ms. Yick and Mr. Li have taken several overseas
trips. They went on an organized tour of Europe, followed by an ocean cruise. They
also took a long trip to China and a cruise to Australia. In addition, they
have visited Ms. Yick’s ailing mother in Hong Kong.

[74]        
As I have already indicated, Mr. Li finds cruising to work well for Ms.
Yick because she is in a controlled environment and is able to have a set
routine. However when she leaves the ship, she requires supervision to prevent
her from wandering off.

[75]        
The principles applicable to an award of non-pecuniary damages are well
established.

[76]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court summarized the
considerations that may be taken into account in assessing non-pecuniary
damages. At paragraphs 45-46 Kirkpatrick J.A. set out those considerations as
follows:

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

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

[Emphasis
added.]

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f) loss or impairment of life;

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

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

[77]        
These considerations are of course not intended to be exhaustive. In
each case the award must meet the specific circumstances of the plaintiff. I
will however review some of these considerations in these reasons.

[78]        
Ms. Yick was born in 1961 and was 45 years old at the time of the
accident. As of June 2011, Dr. Elliot was of the opinion that the injuries she
suffered in the accident had reduced her life expectancy by 4.3 years, as
compared to the general population of her cohort, and by 8 years if Ms. Yick’s
superior pre-accident health is taken into account. Even after the accident Ms.
Yick’s life expectancy as of June 2011 was 29.6 years. There is in this case
both a significant reduction in Ms. Yick’s life expectancy and a reasonably
long period in which she will have to endure the consequences of the accident.

[79]        
It is also obvious that Ms. Yick suffered grievous injuries in the
accident. These have already been outlined in these reasons. While the
traumatic brain injury is the most serious long term consequence of the
accident, the other injuries were also serious. In addition to her orthopaedic
injuries, Ms. Yick has suffered a very significant loss of function of her right
eye.

[80]        
Ms. Yick did not testify to ongoing severe pain. However it is apparent
from the injuries that she suffered that she must have suffered considerable
pain for some period of time after the accident. I am also mindful of the
comments made about Ms. Yick’s ability to accurately describe her conditions in
this regard. I do note however that Ms. Yick does not appear to suffer from
ongoing debilitating pain.

[81]        
It is also obvious that Ms. Yick has suffered from an extensive
disability as a result of her injuries. She has a marked degree of cognitive
deficits, rendering her unemployable and unable to operate a motor vehicle. In
addition, she is not able to leave her home without the assistance of others
because she cannot cope with the planning and executive requirements of as
simple a trip as going to shops on public transportation. There seems to be
agreement among the experts that Ms. Yick will require some form of personal
assistance to resume even minimal involvement in the community outside of her
home. To paraphrase Dr. Hirsch, she will need someone to act as her frontal
lobes. Ms. Yick’s ability to read has been significantly affected by the
combined effect of her eye injury and her cognitive impairment.

[82]        
I also find that there has been a profound degradation of Ms. Yick’s quality
of life since the accident. Before the accident she had a fulfilling
occupation, considerable independence and an active social life centered on the
church and extended family. She is now limited to a few activities a week and
spends long periods of time alone at home. It is also apparent that many
activities that she formerly carried out without difficulty are now a
significant challenge for her. For example, it now takes her three hours to
prepare a simple evening meal. Her lifestyle before the accident was focused on
home, work and the church. The fact that this was not particularly extravagant or
luxurious did not make it any less fulfilling or important to her. Those
aspects of her lifestyle that were the sources of her self esteem are now
denied to her.

[83]        
Counsel for the Johnson Defendants submitted that the evidence shows
that Ms. Yick now enjoys a reasonable quality of life. She pointed to the
weekly activities in which Ms. Yick engages, the holiday trips and the fact
that Ms. Yick is able to attend to her personal care needs and perform basic
homemaking tasks. She also stressed that Ms. Yick does not have significant
residual pain from her injuries.

[84]        
I do not agree with this characterization of Ms. Li’s quality of life.
Her life is now devoid of purpose. She is isolated in her home for most of the
week. She has made no new friends since the accident. I would not characterize
this as a reasonable quality of life.

[85]        
In her written submissions, the Johnson Defendants’ counsel referred me
to a number of cases in which the plaintiffs had suffered traumatic brain
injuries resulting in significant cognitive impairment and submitted that an
appropriate range of non‑pecuniary damages would be between $175,000 and
$200,000. In argument, she amended her submissions to a range of $200,000 to
$220,000.

[86]        
Plaintiff’s counsel submitted that an award of $300,000 for non-pecuniary
damages was appropriate in this case. He referred to the decision of Fisher J.,
in O’Connell v. Yung, 2010 BCSC 1764 [O’Connell],
in which damages of $275,000 were awarded for a brain injured plaintiff. I note
that on appeal, reported at 2012 BCCA 57, the court described that award as
being at the high end of the appropriate range for such cases. Counsel also
referred to Campbell v. Swetland, 2012 BCSC 423, in which damages
were agreed at $290,000.

[87]        
I will not refer to all of the cases cited by the Johnson Defendants’
counsel. However, I am of the view that Ms. Yick’s injuries are more severe
than most of the cases she relied upon.

[88]        
 In Eggleston v. Watson, 2010 BCSC 890, the plaintiff was
found to have suffered a mild traumatic brain injury even though there was no
loss of consciousness. His other injuries were significantly less serious than
those suffered by Ms. Yick. He was able to work. The extent of his cognitive
impairment was significantly less than that of Ms. Yick. He was awarded non-pecuniary
damages of $170,000.00.

[89]        
In Kean v. Porter, 2008 BCSC 1594, the plaintiff was 56
years old at the time of the accident and had significant pre-accident deficits
that contributed to his ongoing complaints. The trial judge decided that he
suffered persisting, but very mild sequelae affecting cognition from a mild
traumatic brain injury. He was awarded $180,000 ($194,000 in 2012 dollars) for non-pecuniary
damages. The extent of Ms. Yick’s cognitive and executive impairment is far
greater than that of Mr. Kean.

[90]        
In Claiter v. Rose, 2004 BCSC 50, the cognitive and executive
impairments of the plaintiff quite closely parallel those of Ms. Yick. The
plaintiff was rendered competitively unemployable and required significant
guidance from his wife in managing his life. He also exhibited socially
inappropriate behaviour. However his other injuries were less severe than those
suffered by Ms. Yick. He was able to drive a car, something that Ms. Yick
cannot do. In 2012 dollars Mr. Claiter was awarded $205,000 for non-pecuniary
damages.

[91]        
The other cases referred to by the Johnson Defendants’ counsel indicated
a range of $200,000 to $220,000 in 2012 dollars for non-pecuniary damages for
plaintiffs who suffered significant cognitive impairment.

[92]        
In cases such as this, damages are of course a poor substitute for what
the plaintiff has lost. Moreover, an assessment of damages must be fair to both
the plaintiff and the defendant. As pointed out in Stapley one valid
consideration in assessing damages is to consider the extent to which the award
can provide solace to the plaintiff.

[93]        
This point was discussed in Lindal v. Lindal, [1981] 2
S.C.R. 629 at 635-636 as follows:

Pain and suffering and loss of
amenities are intangibles. They are not possessions that have an objective,
ascertainable value. Professor Kahn-Freund in his brilliant essay
"Expectation of Happiness" (1941), 5 Modern L. Rev. 81 [at p.
86], cites the example of the Stoic philosopher Poseidonios, who, when
tormented by pain, is reported to have exclaimed: "Pain, thou shalt not
defeat me. I shall never admit that thou art an evil." How, Professor
Kahn-Freund asks, could we award damages for pain and suffering to this
philosopher who welcomed his misery as a test of his own power to resist it? Is
the Stoic entitled to less compensation than the weak-willed person who recoils
at the slightest suggestion of pain or unhappiness? These examples only
reinforce the conclusion that it is fruitless to attempt to put a dollar value
on the loss of a faculty in the way that we put a dollar value on the loss of a
piece of property.

These problems were identified and
discussed by the Court in the trilogy. In Andrews, three theoretical
approaches to the problem of non-pecuniary loss were canvassed. The first two
approaches, the ‘conceptual’, which treats each faculty as a proprietary asset
with an objective value, and the ‘personal’, which would measure loss in terms
of human happiness of the particular individual, both seek, in varying ways, to
place a dollar value on human faculties and human happiness. The Court adopted
the third approach, the ‘functional’, which rather than attempting to set a
value on lost happiness, attempts to assess the compensation required to
provide the injured person with reasonable solace for his misfortune. Money is
awarded, not because lost faculties have a dollar value, but because money can
be used to substitute other enjoyments and pleasures for those that have been
lost. The matter is discussed in Andrews in these terms at p. 262:

… it provides a rationale as to
why money is considered compensation for non-pecuniary losses such as loss of
amenities, pain and suffering, and loss of expectation of life. Money is
awarded because it will serve a useful function in making up for what has been
lost in the only way possible, accepting that what has been lost is incapable
of being replaced in any direct way. As Windeyer J. said in Skelton v.
Collins [(1966), 39 A.L.J.R. 480] at p. 495:

… he is, I do not doubt, entitled to compensation for what
he suffers. Money may be compensation for him if having it can give him
pleasure or satisfaction … But the money is not then a recompense for a loss
of something having a money value. It is given as some consolation or solace
for the distress that is the consequence of a loss on which no monetary value
can be put.

[94]        
In this case, there is evidence that it is manageable for Mr. Li and Ms.
Yick to take vacations in controlled settings such as a cruise or organized
tour. On these vacations Ms. Yick does seem to adapt and find some measure of
enjoyment. While there was no specific evidence before me as to the cost of
such activities, it is obvious that they are expensive. This would tend to
suggest an award towards the high end of the range for the injuries suffered.

[95]        
More fundamentally, as I have already stated, Ms. Yick’s life has been
profoundly and permanently impaired by her injuries. Taking all the circumstances
in account I assess non-pecuniary damages at $250,000.

Loss of Past Income

[96]        
Ms. Yick is a trained bookkeeper who up to the time of the accident
provided services on a contract basis to D.C. Computer Hospital, for which she
was paid $2,000 per month.

[97]        
Ms. Yick kept the books for the company and performed other tasks, such
as keeping track of inventory. Except for a few days on which she attempted to
return to work on a trial basis she has not worked since the accident.

[98]        
The parties are agreed that an appropriate award for past income loss is
$110,000 after making the necessary adjustment pursuant to s. 98 of the Insurance
(Vehicle) Act R.S.B.C.1996, c. 231. I therefore award that amount for past
income loss.

Loss of Future Income Earning Capacity

[99]        
As indicated above there is no dispute that Ms. Yick’s injuries have
rendered her competitively unemployable for the rest of her life. The dispute
between the parties is over the proper assessment of the damages arising out of
her total loss of income earning capacity.

[100]      In Tsalamandris
v. MacDonald, 2011 BCSC 1138, (appeal dismissed under the name Tsalamandris
v. McLeod, 2012 BCCA 239), Griffin J. set out the principles to be
applied in assessing damages for loss of income earning capacity at para. 259
as follows:

[259]
The principles that govern the measurement of damages for loss of
earning capacity were thoroughly discussed in Rosvold v. Dunlop, 2001
BCCA 1, 84 B.C.L.R. (3d) 158. The principles set out in that case can be
summarized as follows:

1.  the
assessment of damages is not a precise mathematical calculation but a matter of
judgment;

2.  a
plaintiff is entitled to be put in the position she would have been but for the
accident;

3.  an
award for loss of earning capacity recognizes that the ability to earn income
is an asset and the plaintiff deserves compensation if this asset has been
taken away or impaired;

4.  since
these damages must often be based on a hypothetical, the standard of proof of a
hypothetical is “real and substantial possibility” and not mere speculation;

5.  the
court must consider the real and substantial possibilities, and give weight to
them according to the percentage chance they would have happened or will
happen;

6.  one
starting approach to valuation may be to compare the likely future of the
plaintiff had the accident not happened, and the likely future of the plaintiff
after the accident has happened, and to consider the present value of the
difference between the amounts earned under these two scenarios. (I note that
in using the word “likely”, the Court on this point was meaning what
hypothetical was a real and substantial possibility);

7.  however, the overall
fairness and reasonableness of the award must be considered, taking into
account all of the evidence.

[101]     The
principal disagreement between the parties is over the correct approach to
quantify Ms. Yick’s loss. The evidence is that Ms. Yick was paid $24,000 per
year for the provision of the services described above in paras. 96 and 97.

[102]     Ms. Yick
completed high school in Hong Kong and then a 2 year diploma course in
accounting, although it was not clear whether she actually received a diploma. She
has worked steadily throughout her adult life, both in Hong Kong and Canada.

[103]     Both
parties presented evidence from economists calculating the value of an annual
income of $24,000 for various periods from the date of trial. Both economists
are well qualified and presented excellent reports.

[104]     Mr. Robert
Carson presented a report and a supplementary letter concluding that the
appropriate actuarial multiplier to apply to age 65 was $11,746.00 per $1000 of
lost annual income. Applying the formula put forward by Mr. Carson results in
an actuarial calculation of the value of lost annual income of $24,000 per year
to age 65 of 24 x $11,746 or $281,904. The actuarial calculation takes into
account the survival probability of Ms. Yick over that period, but does not
take into account any other labour market contingencies. Mr. Carson stated that
in general these risks reduce the earnings of women in the age 49 to 65 age
range by about 10 to 15%. These reductions produce a range of $239,618 to
$253,714.

[105]     The
Johnson Defendants presented evidence from Mr. Mark Szekely. Mr. Szekely’s
report stated that Mr. Carson’s calculations did not adequately take labour
market contingencies into account. In his view, it was more appropriate to take
these contingencies into account in determining the multiplier to apply rather
than discounting the actuarial calculation. Mr. Szekely’s opinion is that the
appropriate multiplier to be used to take labour market contingencies into
account was $6,869 to age 65 and $7,387 to age 70, resulting in a total of
$164,856 to age 65 or $177,288 to age 70.

[106]     Given the
certainty that Ms. Yick has completely lost her income earning capacity, I am
satisfied that the above calculations set out the range of damages in this
case. However, my task is to assess the loss on the basis of all the evidence
and with regard to the particular circumstances of this case.

[107]     The
plaintiff’s submission is that there is no reason to discount the actuarial
calculation performed by Mr. Carson and that an appropriate award is $281,904.
The defendants’ submission is that there is no evidence before me as to what
Ms. Yick’s actual intentions with respect to future employment were at the time
of the accident, and therefore the proper measure of damages should be
determined by applying what Mr. Szekely described as an economic multiplier,
taking into account all labour market contingencies and using the average retirement
age for women in the plaintiff’s age group.

[108]     In
assessing damages under this category, I must consider Ms. Yick’s personal
circumstances using the economic evidence as a guide to establish the
appropriate award.

[109]     The
evidence before me was that Ms. Yick had worked for all of her adult life.
There is no suggestion that she was not an effective bookkeeper. The evidence
of her co-workers was that she performed her duties pre-accident efficiently. I
also note that before the accident she was in good health and according to Dr.
Elliot, Ms. Yick had a reduced mortality risk of 25% pre-accident, as compared
to the female population.

[110]     It is the
loss of capacity to earn income for which compensation is awarded under this
head. In O’Connell, the Court of Appeal confirmed that an award for loss
of future housekeeping capacity is payable whether or not the plaintiff would
have hired replacement services. It seems to me that the same principle is
applicable to a claim for loss of future income earning capacity. The actions
of the Johnson Defendants have deprived Ms. Yick of an asset, her capacity to
work. I do not think it right to build in assumptions about early retirement
and voluntary withdrawals from the labour force in the initial assessment of
the value of that asset. As a matter of principle, it seems to me that these
factors should be taken into account in assessing the award not by reducing the
actuarial calculation of potential income but through an overall adjustment for
contingencies. In this regard, I do not agree with the defendants’ submission
that it was incumbent on the plaintiff to lead evidence negating these factors.

[111]     In this
case, I think that there is no reason to believe that Ms. Yick would not have
continued to work to age 65 had she not been injured. There were no age related
physical limitations on her occupation. There is no evidence that she would
have had family responsibilities that would have prompted her to take early
retirement. I think that I can also take into consideration that it is common
knowledge that people are working longer given the current return on
investments in retirement savings. This factor is demonstrated in the
statistics presented by Mr. Szekely showing that between 1998 and 2010 the
average retirement age for females increased from less than 60 to 61.4.

[112]     Finally, I
note that the income being earned by Ms. Yick pre-accident was relatively
modest for a trained bookkeeper. While there was no evidence from either party
as to the average income for a person with Ms. Yick’s qualifications, $24,000
per year equates to approximately $12 per hour based on a forty hour work week,
indicating that it is a conservative figure.

[113]     In my view
the positive and negative contingencies in this case closely balance each other
out when applied to the actuarial calculation of Ms. Yick’s potential earnings
to age 65. I do think that fairness does require some reduction from the
actuarial calculation performed by Mr. Carson. However I consider the economic
calculation of Mr. Szekely to be inadequate to compensate Ms. Yick for her
total loss of income earning capacity.

[114]     In all of
the circumstances I consider that a fair award for loss of future income
earning capacity in this case is $250,000, representing an approximate 10%
discount from the actuarial calculation to age 65 performed by Mr. Carson.

Cost of Future Care

[115]     All
parties agree that Ms. Yick will require some level of future care. However
they disagree on the amount of care she will require. It is on this issue that the
position of the parties is most widely divergent. In view of the submissions I
have received, I consider it necessary to briefly review some of the
authorities dealing with cost of future care.

[116]     The
trilogy of cases in the Supreme Court of Canada that established an upper limit
for non-pecuniary damages also considered the proper basis for assessing
damages for cost of future care. It is quite clear that the imposition of the
upper limit for non-pecuniary damages was based on the assumption that adequate
provision would be made for other losses, including the cost of future care. In
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229,
Dickson J., as he then was, stated at 241-242 as follows:

The principle that compensation should be full for pecuniary
loss is well established. See McGre­gor on Damages, 13 ed., at p. 738:

The plaintiff can recover, subject
to the rules of remote­ness and mitigation, full compensation for the pecuniary
loss he has suffered. This is today a clear principle of law.

To the same effect, Kemp & Kemp, Quantum of Damages,
vol. 1, 3rd ed., at p. 4: "The person suffering the damage is entitled
to full compensa­tion for the financial loss suffered." This broad
principle was propounded by Lord Blackburn at an early date in Livingstone
v. Rawyards Coal Company [(1980), 5 App. Cas. 25], at p. 39, in these words:

I do not think there is any
difference of opinion as to its being a general rule that, where any injury is
to be compensated by damages, in settling the sum of money to be given for
reparation of damages you should as nearly as possible get at that sum of money
which will put the party who has been injured, or who has suffered, in the same
position as he would have been in if he had not sustained the wrong for which
he is now getting his compensation or reparation.

In theory a claim for the cost of
future care is a pecuniary claim for the amount which may reasonably be
expected to be expended in putting the injured party in the position he would
have been in if he had not sustained the injury. Obviously, a plaintiff who has
been gravely and permanently impaired can never be put in the position he would
have been in if the tort had not been committed. To this extent, restitutio
in integrum is not possi­ble. Money is a barren substitute for health and
personal happiness, but to the ex[t]ent within reason that money can be used to
sustain or improve the mental or physical health of the injured person
it may properly form part of a claim.

[117]     It is
settled law that a claim for future care must be medically justified to sustain
or improve the mental or physical health of the claimant.

[118]    
In this case I find that Ms. Yick’s injuries have had a profound effect
on her ability to lead a normal adult life. In his February 1, 2011 report, Dr.
Kaushansky described Ms. Yick’s ongoing condition as follows:

As a result of the accident in question Mrs. Yick sustained a
severe and diffuse traumatic brain injury affecting both cortical and
subcortical regions. She presents with persistent problems affecting core
cognitive domains: memory, attention, speed of information processing and
executive skills. With regard to the latter, such weaknesses with working memory,
initiation and the monitoring of tasks, as well as with multitasking were noted
during the assessment and were reported by her husband to occur within the
community–they are considered neurocognitive deficits. A consultant
psychiatrist suggested that Mrs. Yick presented with a d[e]mentia (secondary to
a neurological injury). While there has been some reported improvement, given
the severity of Mrs. Yick’s trauma as well as the time since the accident (now
over 4 years), it is my opinion that significant deficits will continue to
impact all aspects of her cognitive and psychosocial functioning. She will not
be competitively employable in the marketplace, but hopefully will find some
part-time avocational placements through the support of community-based personnel.
I would add that she is at increased risk for the onset of a dementing
condition later in her life- it is important to note that a brain injury is not
causal to such a neurodegenerative condition, but becomes a “risk factor” in
its manifestation;

…

Mrs. Yick has been diagnosed with
a personality change due to head trauma (DSM-4/Axis II) and has been receiving
psychological treatment. It is my view that what is being witnessed is most
probably an organic personality disorder secondary (neurobehavioural) to the
injury to her frontal lobe structures – among other regions of the brain –
which is characterized by abrupt moodiness and a low frustration tolerance. It
is fortunate that there is an absence of any acting-out behaviours.

[119]     The portions
of Dr. Hirsch’s diagnosis and opinion set out at para. 46 of these reasons
agree with Dr. Kaushansky’s views quoted in the above paragraph. Like Dr.
Kaushansky, Dr. Hirsch is of the view that Ms. Yick’s impairments are
permanent. The consensus of medical opinion is that as a result of her brain
injury Ms. Yick lacks initiative and motivation to improve her functioning.
While there appears to be general agreement that there is some prospect that
Ms. Yick’s ability to function could be improved through an intense program of
occupational therapy, I am satisfied that Ms. Yick’s lack of initiative and
motivation present a significant challenge to rehabilitation.

[120]     It is also
important to note that the improved functioning contemplated by the experts
would in no way permit Ms. Yick to lead a normal independent life. As I
understand it, the occupational therapy under discussion might go so far as to
permit Ms. Yick to use public transportation to specific familiar locations,
such as nearby shopping malls or to activities that she attends on a regular
basis, such as line dancing. It would not make her employable and would not
render her capable of undertaking any activities that she was not specifically
instructed upon during the therapy. For example, while Ms. Yick might become
able to find her way on her own to a local shopping mall if the therapy is
successful, she would not be able to translate that ability into the ability to
find her way to other shopping areas. There was agreement among the doctors
that she will never be able to drive a car because her level of executive
functioning is simply not adequate to cope with the normal demands of driving
in traffic.

[121]     The
dispute between the parties over what level of future care is necessary is based
in large part on the difference of opinion between the two occupational
therapists who presented reports in this case, Ms. McLean and Ms. Percy.

[122]     Counsel
for the defendants criticized Ms. McLean in their submissions to me. They
suggested that she was partisan and acted more as an advocate than as an
independent expert in responding to questions put to her in cross examination
and in recommending certain services, such as counselling, when there was
medical evidence casting doubt on its necessity or efficacy.

[123]     However I
do not agree with these criticisms. I found Ms. McLean’s evidence to be very
helpful. I did not find her to be partisan in either her report or her oral
evidence. She did vigorously defend her views in this matter. Moreover, on the
critical issue of the extent of ongoing assistance Ms. Yick would benefit from,
her views are more consistent with the evidence of Dr. Hirsch, who prepared a
report for the defendant Mr. Johnson, than were those of Ms. Percy

[124]     I think
that the principal difference between the two occupational therapists was over
the object of the assistance to be provided to Ms. Yick. In my view the goal of
the intervention recommended by Ms. Percy falls short of what could reasonably
be done to permit Ms. Yick to regain as much as possible of the freedom of
movement and choice of activities of her pre-accident life.

[125]     There is a
good deal of basic agreement between Ms. McLean and Ms. Percy. Both agree that
Ms. Yick would benefit from a period of relatively intense occupational therapy
to become more independent. This would involve case management by an
occupational therapist and the involvement of a rehabilitation assistant and
community support worker. Their disagreement is over the duration of
occupational therapy that Ms. Yick would benefit from and over the extent of
assistance that Ms. Yick will benefit from on a long term basis.

[126]     Ms. Mclean
is of the view that Ms. Yick will benefit from a more extensive involvement of
an occupational therapist after the initial period than does Ms. Percy. Both
occupational therapists think that Ms. Yick will reach a plateau in her
rehabilitation in approximately one year after the initiation of therapy. Ms.
McLean however thinks that Ms. Yick would benefit from an average of 4 to 6
hours per month of case management by an occupational therapist to maintain her
level of functioning.

[127]     Ms. Percy
does not see the need for as much involvement by an occupational therapist on a
permanent basis. In her view, after the first year, 6 to 12 hours per year of
such services, increasing to 12 to 18 hours on an episodic basis to address
periods of transition, ought to be sufficient.

[128]     The
present value of the cost of case management recommended by Ms. McLean after
year one ranges from approximately $96,000 to $150,000. The present value of
the occupational therapy recommended by Ms. Percy after year one ranges from
approximately $18,000 to $38,000.

[129]     With one
exception, for assessment purposes I accept the costs suggested by Ms. Percy
for case management by occupational therapists. I generally agree that after an
initial occupational therapy intervention, further occupational therapy will be
of limited usefulness except when Ms. Yick undergoes significant changes in her
accommodation or if Mr. Li plays a lesser role in her care. However, I think
that such intervention may well be required more frequently than projected by
Ms. Percy. I therefore think that there should be provision for increased
episodic occupational therapy services every five years.

[130]     While
there is a significant difference between the cost of recommended case
management after the initial period of treatment, there is a much greater
difference between the cost of ongoing community support worker (CSW) services
recommended by the occupational therapists. Ms. McLean is of the view that Ms.
Yick would benefit from 4 to 6 hours per day of CSW services while Ms. Percy
considers that after the first year in which Ms. Yick’s abilities will plateau
4 to 8 hours per week should be sufficient. Based on the agreed lowest rates
charged for CSW services, this results in a present value cost for Ms. McLean’s
recommendation of approximately $693,000 for four hours per day, compared to an
approximate present value cost of $100,000 for Ms. Percy’s recommendation.

[131]     I agree
with Ms. McLean that Ms. Yick will require substantial ongoing assistance
supports to be able to engage in activities she engaged in pre‑accident.
She is presently incapable of safely leaving her home alone. There is some
prospect that with an intensive occupational therapy intervention she will be
able to leave her home alone. However this ability will be limited to very
familiar routes and destinations. As I understand the evidence, this capability
will arise not from any improvement in her underlying cognitive and executive
deficiencies but from learning these routes and routines through repetition.

[132]     I find
however that these strategies will not make Ms. Yick independent. Her executive
deficits will preclude her from undertaking any but the simplest and most
familiar trips outside of her home. She faces the real prospect of being
overwhelmed in carrying out domestic tasks through lack of planning, initiative
and problem solving ability.

[133]     I accept
Ms. McLean’s recommendation that Ms. Yick receive the services of a CSW on a
daily basis. At page 10 of her April 21, 2011 report, Ms. McLean sets out some
circumstances in which the assistance of a CSW would benefit Ms. Yick. I am
also of the view that a CSW is the appropriate person to provide these
services. Ms. Percy’s report agreed that whatever continuing care assistance
Ms. Yick should receive should be provided by a CSW.

[134]     I do not
think that the amount of such assistance recommended by Ms. Percy is adequate
to provide Ms. Yick with the assistance necessary to maximize her functioning.
Given the range of ways in which such a CSW would improve Ms. Yick’s capacity
to function and undertake activities she could formerly do independently, I
conclude that four hours per day, or 28 hours per week is reasonably necessary
in this case.

[135]     Counsel
for Mr. Li argued that such assistance need not be provided by a CSW but could
be provided at less cost by a domestic companion. It was submitted that such
assistance could be provided at approximately $20 per hour. However I think
that Ms. Yick would benefit from the assistance of a more highly trained
individual. It was the recommendation of both occupational therapists that this
assistance be provided by a CSW. I also think that a trained person will be
able to recognize changes in Ms. Yick’s level of functioning and react
accordingly. Finally the evidence of the actual cost of alternative care was
somewhat vague. In addition it does not include associated costs such as travel
and, if the assistant is an employee, employer’s contributions to Employment Insurance,
Workers’ Compensation, and Canada Pension.

[136]     In this
regard, I do not agree with Dr. Hirsch’s evidence that an untrained person
should be able to provide the required assistance to Ms. Yick. Ms. Yick has
cognitive and behaviour difficulties that a trained CSW would be able to
appreciate and cope with. For example a CSW would have insight into the causes
of Ms. Yick’s outbursts of anger and frustration. In addition a CSW would be
better qualified to assist Ms. Yick in planning and optimizing her
organizational skills. I conclude that an untrained companion would not be
effective in dealing with these challenges.

[137]     The above findings
assume that Mr. Li will continue to be available to Ms. Yick and provide her
with assistance. Mr. Li is a devoted husband. I conclude that it is unlikely
that he would voluntarily withdraw the supports he now provides. However,
several doctors have identified that there is a risk of “caregiver burnout” in
this case. In addition there is a risk that Mr. Li could become psychically
unable to continue to provide supports as he ages.

[138]     There is
some dispute among the experts about Ms. Yick’s ability to live independently
should Mr. Li no longer be available to her. Dr. Kaushansky is of the view that
if Mr. Li is no longer available to Ms. Yick, either significant home support
or placement in a supported residential environment for brain injured patients
will be necessary. Dr. Hirsch does not specifically comment on this issue. He
is of the view that there is no need for night time or day time supervision but
does agree that Ms. Yick requires someone to be with her when she leaves home.

[139]     This issue
brings the role that Mr. Li plays in Ms. Yick’s life into focus. The view
advanced by the plaintiff is that Mr. Li is acting to a large extent as a
caregiver meeting needs that Ms. Yick cannot provide for herself. The other
view is that Ms. Yick’s rehabilitation is being hampered by Mr. Li’s
over-protectiveness and that Ms. Yick has the potential to be significantly
more independent than she presently is.

[140]     These two
views inform the divergent recommendations of the two occupational therapists.
Ms. McLean states that Ms. Yick would not be able to live alone without her
husband’s contribution to the household. Ms. Percy is of the view that Ms. Yick
could live in an apartment setting on her own with the same level of supports
that she recommends should she continue to live with Mr. Li.

[141]     Based on
all of the evidence, including that of Mr. Li and those lay witnesses who have
observed Ms. Yick in the community I find that Mr. Li has acted as a caregiver
to Ms. Yick ever since the accident. Without Mr. Li, Ms. Yick could not live
independently without significant community supports. She clearly would require
assistance with any activity that required her to leave her home. Based on the
observations of Ms. McLean at the home shared by Ms. Yick and Mr. Li, she
clearly would require significant guidance and assistance in looking after and
organizing her home. I agree that there is scope for Ms. Yick to develop more
independence than she currently has but I do not think that she is capable of
independent living without substantial supports.

[142]     I think
that some insight into the basis for Ms. Percy’s opinion is found in her March
7, 2012 report at page 2, in which she states:

In order to minimize potential risk for Ms. Yick related to
poor working memory, planning or organization with novel activities, the care
report outlines supports and services to expand her abilities and repertoire of
activities (i.e. attending the gym; using local transit routes) with rehearsal
and repetition. The basic premise is to help Ms. Yick consolidate the skills so
that daily tasks or activities shift from being “novel” to more “procedural”,
systematic and familiar. In addition, her daily routines would be limited to
a range of activities that are purposeful but familiar and over learned, with
limited expectations that she perform unfamiliar tasks or be exposed to
situations where more complex working memory or problem-solving is required.

[Emphasis added.]

[143]    
As I read the above quoted paragraph, the goal of Ms. Percy’s care plan
contemplates a limiting of Ms. Yick’s future daily routines to those that she
becomes habituated to through training and repetition. In my view this
objective, would not achieve the objectives of a pecuniary award for future
care in that it would not have as its goal doing all that is reasonably
possible to put  Ms. Yick in the same position she would have been in had she
not suffered her injuries.

[144]     The
passage from Andrews quoted in para. 116 makes it clear that the object of an
award for future care is to do what can reasonably be done to put the injured
party in the position she would have been in had she not sustained her injury.

[145]    
It is clear that Ms. Yick cannot be restored to her original condition.
However, I think that she now benefits from Mr. Li providing her with supports
that go beyond the objective of Ms. Percy’s care plan. I am satisfied on the
evidence that a good deal of the activities that presently enrich Ms. Yick’s
life, such as meals out and shopping trips would be significantly curtailed
without Mr. Li’s assistance.

[146]    
I am not satisfied that Ms. Yick would in fact be able to achieve the
level of competence set out in Ms. Percy’s care plan. The care plan does not
seem to address Ms. Yick’s acknowledged lack of initiative and diminished
insight into her own limitations. It is one thing to learn to do a task. It is
quite another to be able to summon the energy to undertake it or even recognize
that it is necessary or appropriate to undertake it. In addition, the case plan
advocated by Ms. Percy does not make adequate provision for the possibility
that Ms. Yick could not attain or sustain the improvements Ms. Percy expects.

[147]    
 I conclude that even if the occupational therapy intervention
recommended by Ms. Percy is successful, Ms. Yick will require ongoing cueing
and guidance to have a reasonable quality of life in the future. If Mr. Li is
not available to provide that cueing and guidance Ms. Yick will require outside
caregivers to provide it.

[148]     I am also
satisfied that the claim for housekeeping services of two hours per week is
warranted. I note that there is ample evidence in this case of a marked
reduction in Ms. Yick’s housekeeping capacity both from Mr. Li and Ms. McLean.
While no claim for loss of housekeeping capacity as such has been advanced, the
claim for housekeeping services as an item of future care does overlap with
such a claim. I consider the claim made in this regard to be modest and
entirely reasonable. There is no dispute as to the annual cost of these
services.

[149]    
Ms. McLean makes a recommendation that Ms. Yick be provided with some
gardening services to replace the work she did in the family garden prior to the
accident. However, I am not satisfied that Ms. Yick made any significant
contribution to maintaining the family garden and grounds. I therefore decline
to make any such award.

[150]    
Ms. Yick also advances a claim for psychological counselling. Both
occupational therapists agree that some counselling will probably be necessary
but they disagree on the amount that is reasonably required. I agree with the
recommendation of Ms. Percy that the necessity for such counselling will be
episodic rather than continuous. Accordingly, I adopt her recommendation that
an allowance be made for intermittent counselling. As I am of the view that
initial counselling in connection with the proposed occupational therapy will
be beneficial, I find that it is reasonable to make provision for counselling
sessions every five years over Ms. Yick’s lifetime to address future changes in
her circumstances.

[151]    
Ms. Yick seeks an award to provide for massage therapy. I am not
persuaded that ongoing massage therapy will be necessary for Ms. Yick’s future
health as opposed to a source of relaxation and enjoyment. Ongoing massage
therapy, if desired, should therefore be funded out of the non-pecuniary damage
award. I agree with Ms. Percy that an award be made to permit Ms. Yick to
participate in 36 sessions over the next year as she increases her activity
level. In this regard I make an award of $3000.

[152]    
Ms. McLean’s report addresses a number of other items of equipment and
medication for future care. These include dental work, eye glasses, safety equipment
and eye drops. I was not provided with an adequate evidentiary record with
respect to these items to permit me to make an award in respect of them.

Quantification of Cost of Future Care

[153]     As was the
case with the claims for past and future income loss, I was presented with
evidence from economists for both Ms. Yick and Mr. Johnson. However, unlike
their disagreement with respect to the calculation of past and future income
loss, there did not appear to be any significant disagreement between them
about how to calculate the present value of the cost of the various items of
future care. Accordingly I will summarize the amounts I have awarded and
determine their present value before going on to consider contingencies.

[154]     The future
care items under consideration are as follows:

1.              
Case Management in year 1;

2.              
Case Management after year 1;

3.              
Community service worker assistance year 1;

4.              
Community service worker assistance after year 1;

5.              
Housekeeping assistance;

6.              
Psychological counselling; and

7.              
Massage therapy.

[155]     I will
first set out what I consider to be the present value of the various costs of
future care items. I will then assess a global amount of damages for this
category of damages and consider what impact contingencies should have on that
assessment. In determining the present value of the cost of future care items,
I will use the multipliers set out by Mr. Carson at Table 3 of Exhibit 4.

Case Management

[156]     Based on
the costing provided by the occupational therapist and because I am in general
agreement with Ms. Percy’s views that there will be limited need for case
management after year one, I assess the cost of future case management in the
following table. In so doing, I have used the midpoint of the cost ranges set
out in Ms. Percy’s report:

CSW Assistance

[157]    
The most significant element of the cost of future care claim is the
amount of CSW assistance that Ms. Yick reasonably requires. I have already concluded
that she should receive 28 hours a week while she continues to live with Mr. Li.
Such assistance will help Ms. Yick both with more effectively dealing with
household tasks and provide her with an enhanced ability to leave home and
engage in activities outside of it. It will also replace some of the care that Mr.
Li now provides. The law is well settled that family members and spouses are
not required to provide such care (see Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.) at 88).

[158]     Counsel
for the defendants argued that there would be periods, such as when Ms. Yick is
travelling, when no assistance will be required and an adjustment ought
therefore to be made to this award. However, I have taken that into account in
arriving at an average weekly amount of assistance. There may be trips that Mr.
Li would take an assistant along. On other trips, such as cruises, companion
assistance may well be available. I also think that it is more appropriate to
take this factor into account in arriving at an overall contingency for the
cost of future care.

[159]     In
assessing this head of damage, I use the lower cost of $27.13 per hour provided
by Ms. McLean. The annual cost of providing 4 hours per day of such assistance
is $39,610. Using the multiplier of 17.490 provided by Mr. Carson, the present
value of this amount to the end of Ms. Yick’s life expectancy is $692,779 (say
$690,000).

Housekeeping Assistance

[160]     There is
consensus among the experts that Ms. Yick will require two hours per week in
housekeeping assistance. The cost of this assistance on an annual basis is $2,366.
The present value is $41,381 plus HST of $2,204 for a total of $43,585 (say
$43,500).

[161]     The next
item of future care is for counselling. I agree with Ms. Percy that Ms. Yick is
unlikely to benefit from extensive counselling given her lack of insight and
motivational impairments. Accordingly I consider that an award of $3,000 in the
first year and every five years thereafter for counselling to be adequate. This
results in an award of $3,000 x 0.981 or $2943 plus 3000/1000 x $3,694 or
$11,082, together rounded to $14,000.

[162]     I also
award one year of massage therapy while Ms. Yick is exchanged in occupational
therapy as appropriate at a cost of $1,800.

[163]    
The total of the items of future care before adjustment for
contingencies and assuming that Ms. Yick will continue to live with Mr. Li, can
therefore be summarized as follows:

[164]    
The above assessment of the cost of future care is based on the
assumption that Ms. Yick and Mr. Li will continue to live together and that Ms.
Yick will prefer to look to Mr. Li for some supports that she would otherwise
require from others.

[165]    
Ms. McLean is of the view that Ms. Yick will require greater support if
she is no longer able to live with Mr. Li, or he is no longer able to provide
his current level of support to her. I have already found that Mr. Li is
providing support to Ms. Yick that goes beyond that which one would expect from
their marriage relationship.

[166]    
Ms. McLean has set out three possible living scenarios for Ms. Yick if
she no longer can rely on Mr. Li. The first is for Ms. Yick to continue to live
in a house with increased support services. The second is for Ms. Yick to move
into a supported apartment living arrangement in which she would receive
supports in place of the individual support program she would require if she
continued to live in a house. The third is for Ms. Yick to live in a group home
for individuals with acquired brain injury.

[167]     The costs
associated with these three options range from $59,000 per year to
approximately $90,000 per year. Based on the multipliers provided by Mr. Carson,
this would translate to a present value cost of between approximately
$1,040,000 and $1,565,000.

[168]     Ms. Percy
has commented on each of these possibilities. In her view it would not be
practicable for Ms. Yick to continue to live alone in a house. She suggested
that Ms. Yick could live in an apartment with the same level of support she
recommended for her if she continued to live in her house with Mr. Li. She did
not think that Ms. Yick would be a good candidate for a group home because of
her neuro-behavioural issues. However, she did in a supplemental report state
that Ms. Yick might be a good candidate for a shared support program such as
that offered by Cheshire Homes Society. The annual cost for such services,
$34,675 per year is comparable to the cost of the additional supports
recommended by Ms. McLean, should Ms. Yick continue to live with Mr. Li.

[169]     I think
that the most probable scenario is that Ms. Yick will continue to live with Mr.
Li and be able to rely upon him for continuing support. However, I also find
that there is a substantial possibility that she will find herself without such
support as a result of some future event such as Mr. Li becoming incapacitated
or predeceasing her or in the event of a breakdown of their marriage. I find
that if such an event occurs Ms. Yick will require a greater level of assistance
than she does while living with her husband.

[170]     The facts
of this case bear some resemblance to those in O’Connell. In that case
the plaintiff also suffered a brain injury with cognitive impairment and
required significant home care. The plaintiff preferred that her husband
provide a significant amount of that care. The trial judge awarded the full
amount of having outside providers provide the care, reasoning that the amount
of such care should be awarded even if the plaintiff chose not to avail herself
of it. The Court of Appeal held that this was an error and that it was
necessary to take the question of whether the plaintiff would actually use the
services into account in assessing damages. As I read the decision, the Court
of Appeal reduced the trial judge’s assessment by 20% to reflect the fact that
the services were currently being provided by the plaintiff’s husband, but not
more than 20% because his capacity to provide the services would decrease over
time while her needs had the potential to increase.

[171]     If I were
to adopt this approach I should base the cost of assistance on the level of
assistance that Ms. Yick would require if Mr. Li is not available, then apply a
contingency factor to that award. In this case I accept the evidence of Ms. McLean
that six to eight hours of personal assistance per day would be required should
Mr. Li be no longer available. Based on the rate of $27.13 per hour and taking
an average of seven hours per day, this translates into an annual cost of
$69,300. The present value of that annual cost, based on Mr. Carson’s calculations,
is $1,212,000.

[172]     In my view
the appropriate contingency to be applied to this award should be 25%,
resulting in an award of $909,000 for this category of future care. I consider
25% to be appropriate because I think that Mr. Li will likely be able to
provide assistance longer than the plaintiff’s husband in O’Connell, who
was considerably older. However I am also satisfied that Ms. Yick would avail
herself of additional assistance should she no longer be able to rely on Mr. Li.

[173]     In paragraph
159, I assessed the cost of future CSW assistance component of future care at
$690,000, subject to adjustment for contingencies. In my view there are minimal
negative contingencies to be applied to that figure given the conservative
assumptions on which it was based and the fact that mortality risk is already
factored into the multiplier. On the other hand, that award is subject to a
substantial positive contingency that Mr. Li will not be able to continue to
provide support.

[174]     Taking
into account the above factors I assess the cost of assistance component for Ms.
Yick at $900,000 and the overall assessment for cost of all items of future
care at $975,000 to provide for a modest discount of the other cost of future items
listed in paragraph 163.

In Trust Award

[175]     I have
already found that Mr. Li has provided Ms. Yick with assistance and care that
went far beyond that which would be expected from a normal marriage
relationship. I note that Mr. Li has provided services for almost six years
after the accident up to the date of trial. I am satisfied that Mr. Li’s
assistance was necessary to permit Ms. Yick to function in the family home
without outside assistance. The principles applying to an in trust award were
not in dispute before me. All counsel agreed that some award was appropriate.

[176]     Taking all
the evidence into account, in this case I am satisfied that as a result of Ms.
Yick’s injuries, Mr. Li has provided her an average of at least three hours per
day of assistance to Ms. Yick over and above that which would be expected from
the normal spousal relationship. The assistance can reasonably be valued at $20
per hour. Given the length of time that has transpired since the accident this
amounts to in excess of $100,000.

[177]     I award
$100,000 for this category of damages.

Summary of Damages

[178]     In summary
I award the plaintiff the following damages:

[179]    
The parties made no submissions with respect to gross up for taxes,
management fees or part 7 benefits. They will therefore have leave to make
submissions if they cannot agree on the adjustments.

[180]     Subject to
further submission, the plaintiff is entitled to her costs on scale B against
all defendants except Mr. Li. Mr. Li is entitled to recover his costs from the
Johnson Defendants.

“Sewell J.”