IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20130201

Docket: M101725

Registry:
Vancouver

Between:

Renuca Kumar

Plaintiff

And

Domingo Elpidio

Defendant

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

[1]            
THE COURT: This is an assessment of damages in a personal injury
claim for which liability is admitted.

[2]            
The plaintiff, Renuca Kumar, is now 44 years old.  She was injured on
May 2, 2008, when the bus in which she was a standing passenger was forced
to stop suddenly by the action of the defendant in running a stop sign.  Mrs. Kumar
did not fall, but the sudden forces to which she was subjected resulted in her
sustaining soft tissue injuries in the area of her neck, left shoulder and left
scapula of her back, as well as a left side rib injury.  Regrettably, she went
on to develop what the defendant’s consulting orthopaedic surgeon, Dr. Jordan
Leith, described as “a myofascial chronic pain syndrome that is the result of
the accident.”

[3]            
I accept Dr. Leith’s diagnosis, which is consistent with all of the
medical evidence.

[4]            
The principal issues in this case are:

·       Mrs. Kumar’s
prognosis;

·       the
assessment of her non-pecuniary damages;

·       the
effect of her condition on her income earning capacity (past and future); and

·       the
extent of her claim for future care costs.

[5]            
Before discussing these issues, a review of Mrs. Kumar background
is in order.

[6]            
Mrs. Kumar was born and educated in India.  From 1988 to 1994 she
assisted her father in his garment business looking after the design side of
the clothing, working with the customers and also looking after the production
side.

[7]            
In 1994 Mrs. Kumar married in India.  Her husband, Pravin Kumar,
had emigrated to Canada in 1987 and had earned degrees from the University of
British Columbia in civil engineering and business administration.  In 1993 he
started a career as a portfolio manager/investment advisor at CIBC Wood Gundy. 
He became a First Vice President in 2000.

[8]            
Mrs. Kumar moved to the Lower Mainland with her husband in 1994 and
soon became pregnant with their daughter, who is now 17 and in her final year
of school.

[9]            
In the early years of their marriage, Mrs. Kumar devoted her
energies to raising their daughter, keeping their home and assisting her
husband in the development of his business.  She suffered badly from post-partum
depression after the birth of their daughter and this condition was
unfortunately exacerbated when they subsequently tried very hard to have more
children without success.  They tried in-vitro fertilization, and a pregnancy
was lost in 2005.  Both the emotional stress and the hormonal changes wrought
by this process contributed to the depression.  While it clearly affected Mrs. Kumar
considerably, the evidence indicates that it was not disabling.  Ultimately,
however, the depression appears to have predisposed her to the development of
chronic pain from the soft tissue injuries she suffered in the accident.

[10]        
From the time she and her husband settled in the Lower Mainland in 1994
until 2007 Mrs. Kumar was, I find, a help to her husband in the marketing
of his services and the development of his business.  The business of
investment advice is built largely upon the development of personal
relationships and Mrs. Kumar was an important factor in this respect,
entertaining Mr. Kumar’s existing and prospective clients with rather
lavish dinners at home on a regular basis.  Mrs. Kumar was, among other
things, a passionate cook experienced in elaborate Indian cuisine.  She also
assisted Mr. Kumar with the preparation of his presentations and seminars
and was active in the community.

[11]        
For this assistance Mr. Kumar paid (or attributed to) his wife an
annual income, which by 2007 had reached $30,000.

[12]        
By 2007 Mrs. Kumar had pretty much had enough of working in the
home.  It was clear that there would be no more children, their daughter was 12
and well established at school, and Mr. Kumar’s business was thriving.  Mr. and
Mrs. Kumar discussed what she might do, and she concluded that she should
pursue what had always been her passion: fashion design.  Mr. Kumar
supported her in this.  Accordingly, Mrs. Kumar enrolled in a two-year
diploma program in Fashion Design and Merchandising and Foundation for Design
at the Art Institute of Vancouver.  This was an expensive course.  The total
tuition came to just over $40,000 on top of which she paid for books, supplies,
including a fashion design kit, and student fees, for a total cost approaching
$50,000.

[13]        
The accident occurred during the third of the course’s eight semesters.

[14]        
I turn now to consider Mrs. Kumar’s injuries and their impact upon
her life.

[15]        
As noted, as a result of the tractional and rotational forces to which
she was subjected in the accident, Mrs. Kumar sustained soft tissue
injuries to her left shoulder, neck and upper back.  Treatment modalities
including physiotherapy and cortisone shots were of limited benefit. 
Investigation by means of MRI and nerve conduction studies determined that
there was no shoulder or nerve pathology.  Thus, as Dr. Leith observed,
she did not suffer any specific pathological injury to her shoulder or its
internal structures, but instead of recovering within the time usually expected
in cases of soft tissue injury, Mrs. Kumar continued in a state of
significant discomfort, developing myofascial chronic pain syndrome.

[16]        
According to Mrs. Kumar, this has had a profound impact on her
life.  The pain is exhausting.  It limits her use of the left shoulder and arm,
significantly impairing her ability to carry out household chores such as
cleaning and laundry, to cook, and to carry out the tasks required for fashion
design, such as cutting, sewing and lifting bolts of material.  She finds it
difficult to sleep and therefore must nap during the day and is often cranky. 
She and her husband now occupy separate bedrooms so that her restlessness does
not interrupt his sleep, and their intimacy has been severely diminished.  Any
physical effort results in increased disabling pain that lasts a considerable
time.  Pain is minimized only with rest, and Mrs. Kumar is obliged to rest
often during the day.

[17]        
Mrs. Kumar was able to complete her program at the Art Institute,
graduating in September of 2009.  She did very well, placing on the dean’s
honour roll in her last three semesters.  Mrs. Kumar testified that she
was able to complete this course only with considerable difficulty and
requiring much help from her husband and daughter.  She was nevertheless
determined to finish it.  A review of her transcript indicates no deleterious
effect on her grades.

[18]        
Mrs. Kumar has been able to travel to India and Hawaii and has felt
better on those trips because she has not had to do anything.

[19]        
Mrs. Kumar has made no attempt to obtain employment because of the
limitations caused by her pain.  She feels that she would be unable to perform
any of the tasks that would be required of her and would be unable to present
an attractive prospect to any employer.

[20]        
Medically, these limitations arise solely from the perception of pain, a
hypersensitivity to painful stimuli, and not from any structural damage.  That
is the nature of chronic pain syndrome.

[21]        
Turning to the question of her prognosis, Dr. Leith described it as
“extremely guarded”, but was hopeful that with appropriate management by
somebody with a specialty interest in chronic soft tissue pain the symptoms
would eventually settle.

[22]        
Mrs. Kumar was treated by her family physician, Dr. Condon,
until January of 2011, when she switched to another GP, Dr. Parikh, who
has a special interest in motor vehicle accident injuries.  Mrs. Kumar
testified that she did so because she wanted a second opinion due to her lack
of progress.  She continued to see Dr. Condon for other matters.  Dr. Condon
prepared a report which was reviewed by some of the other experts but was not
put into evidence before me.  According to Dr. Parikh, the prognosis for a
full recovery is poor.

[23]        
A report was filed from Dr. Samira Ummat, a specialist in physical
medicine and rehabilitation to whom the plaintiff was referred.  Dr. Ummat
stated:

In summary, I have seen Ms. Kumar
on three occasions and injected her with corticosteroids on her first visit
with me on November 25, 2011.  Over the course of time her symptoms of
pain have persisted, but she has had some improvement.  Despite this, she
remains limited in her tolerance and her ability to perform activities she could
do prior to the accident.  There are extensive reports from the physical
therapists documenting her capabilities.  Sometimes soft tissue injuries like
this take a long time to recover.  Eventual outcomes vary in individuals.  I do
not think this will cause any degenerative joint disease or chronic arthritis. 
Given her current presentation, her outcome for a full recovery remains
guarded.

[24]        
The medical experts are consistent:  the prognosis is not hopeless but
neither is it hopeful.

[25]        
What I find unusual given Mrs. Kumar’s difficulties is that her
physicians did not refer her, as suggested by Dr. Leith, to a specialist
in chronic pain for consideration of all the various treatment modalities that
could potentially improve her symptoms.  Given her history of depression and
its connection with chronic pain, one might have expected the involvement of
psychiatric expertise as well as other specialties in an attempt to assist Mrs. Kumar
with the management of her pain.

[26]        
In fact, Dr. Parikh did refer Mrs. Kumar to a psychiatrist, Dr. Jassal,
and an appointment was made.  Mrs. Kumar was unable to attend and made no
further attempt to reschedule the appointment.  The purpose of the referral was
to assist Mrs. Kumar with her antidepressant medication.  In particular,
to assist her in being weaned off her existing medication if that were thought
advisable, and to obtain any recommendations for ongoing treatment.  Mrs. Kumar
explained that she was leaving town when the appointment was made and so could
not attend, and made no attempt to reschedule because she did not want to go
off her medication.  No further referral was made by Dr. Parikh.  No
evidence was led from an expert in psychiatry as to what potential benefit
might have come from such a consultation.

[27]        
Given this refusal to pursue a psychiatric consultation and other
factors, the defendant suggested that Mrs. Kumar showed little interest in
her rehabilitation and has failed to mitigate any presumed income loss.  The
other factors included her failure to retain a personal trainer and attend the
gym regularly as recommended by a physiotherapist and her refusal to continue
taking an anti-inflammatory drug, Ultram, prescribed by Dr. Ummat.  Defence
counsel also suggested that Mrs. Kumar’s evidence was unreliable, based on
inconsistencies observed by an expert, Ms. Katie Barr, who carried out a
functional capacity evaluation, inconsistency between discovery evidence and
trial evidence, and inconsistency between the evidence of Mrs. Kumar and
that of her husband concerning housekeeping expenses.

[28]        
With respect to the factors upon which the defence has based its
submission that Mrs. Kumar failed to mitigate any presumed income loss, I
am unable to find that those factors support such a conclusion.  The onus, of
course, is on the defendant to establish that the plaintiff failed to take
reasonable steps to mitigate her loss.  While it is true that Mrs. Kumar
did not follow up on the psychiatric referral, her GP, Dr. Parikh, who
made the referral, based it on a medication issue and did not follow up
further.  There is no evidence that would allow me to conclude that if Mrs. Kumar
had attended the appointment it would probably have resulted in an adjustment
to her medication that would have made a difference to her condition.  It might
have done so, but on the state of the evidence that it is a matter of
conjecture only.

[29]        
Turning to Mrs. Kumar’s failure to retain a personal trainer and
attend the gym regularly, she explained that she attempted to do so but found
that the exercises exacerbated her condition beyond endurance.  Instead she
continued with stretching exercises at home to the extent that she was able to
tolerate them.  There is no expert evidence that would allow me to conclude
that this was unreasonable on her part.

[30]        
Similarly, Mrs. Kumar testified that she stopped taking the
anti-inflammatory medication because it upset her stomach.  Instead, she took
high doses of a non-prescription anti-inflammatory, ibuprofen.  This, too, was
an approach that I am unable to conclude on the evidence was unreasonable.

[31]        
Taking all of the evidence into account, however, I do conclude that Mrs. Kumar
demonstrated a certain tendency to exaggerate.  I do not mean this in the sense
of any deliberate attempt to mislead the court.  I am satisfied that Mrs. Kumar
is an honest person.  The problem seems to be inherent in her sense of
self-perception.  It is this tendency that explains, as I see it, the
inconsistencies in the evidence concerning domestic help, her somewhat exalted
description of her pre-accident activities, her pain perception as described in
court notwithstanding reports of improvement recorded by her physicians, and
some of the inconsistencies observed by Ms. Barr including that Ms. Kumar
was seen to have greater mobility in the left shoulder and arm when she was
distracted or unaware that she was being observed.

[32]        
The defendant does not suggest, and I do not find, that Mrs. Kumar
is in any way a malingerer.  That she genuinely suffers from the chronic pain
disorder that has been diagnosed is clear.  I find it equally clear that this
condition has disabled her.  No expert has suggested otherwise.  But in
assessing her damages, I am not prepared to take everything exactly as she
described it, and I feel obliged to pay careful attention to the expert
evidence.

[33]        
I now turn to the assessment of Mrs. Kumar’s non-pecuniary
damages.  Relying on the cases of Foran v. Nguyen et al., 2006 BCSC 605
($90,000); Durand v. Bolt, 2007 BCSC 480 ($75,000); and Collyer
v. Boon, 2008 BCSC 1745 ($80,000), and taking inflation into account,
the plaintiff submits that the appropriate range is $85,000 to $110,000 and
suggests that an appropriate award would be $95,000.

[34]        
Relying on the cases of Dakin v. Roth, 2013 BCSC 8 ($45,000);
Connolly v. Cowie, 2012 BCSC 242 ($50,000); Prempeh v. Boisvert,
2012 BCSC 304 ($60,000); and Kwong v. Leonard, 2012 BCSC 1818 ($75,000),
the defendant argues that the appropriate range is $45,000 to $75,000.

[35]        
I bear in mind also my own recent decision in Mayervich v. Sadeghipour,
2012 BCSC 1624, in which I awarded an older plaintiff non-pecuniary
damages of $85,000.

[36]        
While no two cases are directly comparable, I consider Mrs. Kumar’s
situation to be in the mid area of the total range covered by these cases.  I
base this on a number of factors including her age, the extent of her
disability and the extent of her injuries.  For instance, although she suffers
chronic pain in common with most of these plaintiffs, she did not suffer actual
mechanical injury that required medical intervention.  I conclude that the
appropriate award in this case is $80,000.

[37]        
Before turning to the claims for past and future housekeeping expenses
and past and future income loss, I propose to say a little more about Mrs. Kumar’s
prospects.  I am not convinced that they are as dismal as her counsel submits.

[38]        
I accept that Mrs. Kumar has been severely limited by the pain that
she has suffered as a result of this accident, but it is evident to me that she
has not had the benefit of the sort of multidisciplinary treatment for pain
management that is commonly prescribed for persons suffering from chronic pain
as indicated by Dr. Leith and as recommended by Ms. Barr.  This would
include therapy relevant not only to pain management directly but also to her
underlying depression, which I am satisfied is a contributing factor. 
Accordingly, while I do accept that her prognosis is guarded, I do not accept
that it is hopeless.  Given the determination and ability that Mrs. Kumar
has demonstrated in her life, I am satisfied that a real possibility exists
that with the proper program she will experience significant improvement in her
condition.

[39]        
I turn next to the claim for past and future loss of income.

[40]        
Mrs. Kumar’s claims in this regard are complicated by several
factors.  Unlike her fellow students in the Art Institute program, Mrs. Kumar
is of middle age.  She has no work history in Canada and has not worked outside
the home for 20 years.  She had no concrete job plan and no specific jobs in
mind.

[41]        
Because she has no recent employment history and was not employed at the
time of the accident, her claim for past loss is, analytically, akin to her
claim for future loss.  Both counsel agreed that the law that governs the
proper assessment of her future loss is that revealed by our Court of Appeal in
Perren v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303.  In my view
those principles are also applicable to her claim for past loss of income in
the circumstances of this case.

[42]        
Before discussing those principles I return to the evidence.  Ms. Barr
provided an expert report and testimony in relation to her physical capacity
evaluation of Mrs. Kumar.  In essence Ms. Barr concluded:

…Ms.  Kumar is currently
considered restricted from pursuing work in her career of choice (i.e., as a
fashion designer) or any other employment.  She would also be expected to have
limitations and restrictions to performing many activities of daily living (in
particular the home management tasks) and to participating in recreational
activities, as a result of her physical limitations related to pain.

[43]        
Notwithstanding some inconsistencies in Mrs. Kumar’s testing, all
of which were described fully in Ms. Barr’s report, Ms. Barr
testified under cross-examination that the results of her testing and
evaluation matched Mrs. Kumar’s diagnosis of chronic pain, noting that she
was so tuned into her body that even small twitches could become a big deal. 
The bottom line, Ms. Barr stated, was that Mrs. Kumar was not coping
well, was not managing her pain well, and needed intervention.  Ms. Kumar
was, Ms. Barr testified, in “desperate need of help to resolve her pain
condition”.

[44]        
I have found Ms. Barr to be a reliable and compelling witness and I
accept her opinion.  I found her to be thorough in her description of her
testing and its results, leaving nothing out that might weigh against her
conclusions, and persuasive in her reasoning.  No expert evidence was led that
challenged her conclusions.  The remark by Dr. Parikh under
cross-examination that perhaps Mrs. Kumar could perform light work such as
in an office was not based on any meaningful evaluation or assessment such as
that undertaken by Ms. Barr.

[45]        
Under cross-examination Ms. Barr confirmed that in previous cases
where she has testified as an expert in court she has done so always on behalf
of the plaintiff.  She was not asked about cases in which she was retained but
did not testify.  Although defence counsel did not submit that I should find Ms. Barr
to be biased, he nevertheless asked the questions, and I wish to make it clear
that I reject any notion of bias.  Without a great deal of context such
questions are remarkably unhelpful, particularly when no contrary expert
evidence is proffered.

[46]        
Ms. Barr went on to recommend rehabilitation options “in order to
assist Ms. Kumar with pain management and thereby potentially increase her
employability.”  The first option is psychological assessment and treatment by a
psychologist who specializes in cognitive behavioural therapy and pain
management.  The second is a formal pain management program involving
interdisciplinary pain management over a period of three to six weeks depending
upon the assessed needs.

[47]        
Mrs. Samantha Gallagher of Vocational Pacific Ltd. prepared a
report and testified as an expert in vocational consulting and assessment.  In
her view,

Taking into account her physical
limitations, pain, depression and overall presentation, it is difficult to
imagine Ms. Kumar being able to sufficiently impress an employer to be
hired in any capacity.

[48]        
On all of the evidence I conclude that Mrs. Kumar is presently
unemployable and has been since the accident.  I agree with Ms. Barr that Mrs. Kumar
is in desperate need of intervention to get her out of her current inability to
manage her pain, move through it, and move forward.

[49]        
How does this translate into the assessment of her claim for loss of
income earning ability given Mrs. Kumar’s pre-accident circumstances?  I
turn to the principles discussed in the Perren case at para. 32:

A plaintiff must always
prove…that there is a real and substantial possibility of a future event
leading to an income loss.  If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in [Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)],
or a capital asset approach as in [Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) and Romanchych v.
Vallianatos, 2010 BCCA 20].  The former approach will be more useful when
the loss is more easily measurable, as it was in Steenblok.  The latter
approach will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych.

[50]        
In the Perren case, the principal concern was assessing loss of
income earning capacity where a plaintiff has returned to his or her usual
employment.  The court confirmed that in such cases, a loss may still exist
where there is a substantial possibility of a future event leading to an income
loss.  Nevertheless, the court noted, an inability to perform an occupation
that is not a realistic alternative occupation is not proof of a future loss.

[51]        
Our situation is somewhat different.  Mrs. Kumar was not employed
before the accident and is not employed now.  Viewed from the moment of the
accident, the question as I see it is whether there was and is a real and
substantial possibility that, but for the accident, she would have become
employed.  I find that there was.  I find that Mrs. Kumar enrolled in her
Art Institute program with a view to pursuing employment in the field of
fashion design.  This was intended to accomplish a number of goals:  it would
give her a source of income independent of her husband, a focus outside of the
home, an outlet for her creativity and a forward step that would assist in
dealing with her depression.  Money per se was not the object.  The Kumars had
plenty.

[52]        
What were her prospects?  On that the evidence is less clear, but there
is evidence.  We know that Mrs. Kumar graduated in September of 2009 with
high marks.  Ms. Gallagher confirms that for the year 2010, 87.1% of the
Art Institute’s fashion design graduates were employed in the field within six
months of graduation, earning an average salary of $22,210.  I accept Mrs. Gallagher’s
opinion that the job prospects for fashion designers in areas such as pattern
maker and tailor are above average.  What I am unable to accept on all of the
evidence is the plaintiff’s contention that her loss should be calculated on an
earnings basis over two and a half years pre-trial and 16 years (to age 60)
into the future based on a weighted average of potential occupations, coming to
$29,520 per annum.

[53]        
Using this weighted average, plaintiff’s counsel submits that the
appropriate pre-accident loss would be $73,800, that is, $29,520 per annum over
two-and-a-half years, less 25% for income tax, for a net claim of $55,000.  Using
the same annual figure, the present value of the future loss to age 60 would be
$420,000.  Mr. Burgoyne submitted that this would be an appropriate amount
whether following the earnings or capital asset approach to assessment.

[54]        
In my mind, the evidence does not support such an assessment.  The
factors that lead me to this conclusion are several:

1. The evidence establishes that income
levels for persons in the field for which Mrs. Kumar became qualified and
about which she was passionate are low, in the range, I find, of $20,000 to
$28,000 per annum.  The weighted average of $29,520 is based on the inclusion
of other, higher paying occupations in which it is clear that Mrs. Kumar
was not interested. 

2.       Although I accept that Mrs. Kumar
would have pursued employment, I am unable to find, in all of the
circumstances, that she would have been willing to put herself in the same
position as younger graduates of the course seeking entry-level jobs on a
full-time basis for any period of time.  While she might well have done so to
begin with, I do not consider it likely that this would have continued.

3.       Although I accept that Mrs. Kumar
has been and is presently unable to work, I conclude that with proper
rehabilitation there is a real possibility that this will change and that she
will be able to work in the field of fashion design in the future, albeit not
necessarily without pain.

4.       Given Mrs. Kumar’s
background and her economic circumstances, I am not satisfied that she would
have worked full-time to age 60.  There are many other possibilities, including
setting up a business that would have provided both an occupation and an outlet
for her creativity but might have yielded relatively little in the way of net
income.  That indeed seems more likely to me than full-time employment in a
relatively low-status job.

5.       The possibility of finding
no employment is not included in the figures used in the plaintiff’s submission
and ought to be.

6.       The pre-existing problem of Mrs. Kumar’s
depression may well have had some impact on her employment quite apart from the
accident.

[55]        
I consider that the capital asset approach is the appropriate one for
this case.  Mrs. Kumar clearly had such an asset.  She had undergone
education and training.  She had demonstrated energy and ability.  She had the
interest and desire.

[56]        
Taking all of the evidence into account, I assess the reasonable
expectation of income to be in the range of $24,000 per year on a full-time
participation basis.  Turning to the pre-trial period, I reduce that to
$16,000, a reduction of one-third, to take into account what I consider to be
the significant contingencies of an inability to find employment and part-time
employment over the 2½ years.  Taking into account income tax, which would be higher
than otherwise due to Mrs. Kumar’s other sources of income, I award the
sum of $30,000, representing the net loss after deduction of income of
approximately 25%.

[57]        
Turning to the future, I note that the present value of a loss of 24,000
per year after applying unemployment, part-time and non-participation factors,
survival rates and the appropriate discount rate to age 60 amounts to
approximately $198,000.  This takes into account significant labour market
contingencies.  Accepting that, together with a further contingency of what I
have found to be the real possibility that Mrs. Kumar will recover
sufficiently to permit her to become employable, I conclude that an appropriate
assessment of Mrs. Kumar’s loss of earning capacity is $150,000.

[58]        
With respect to housekeeping expense, the evidence was somewhat
confusing and inconsistent.  I find that the most reliable evidence was that of
Mr. Kumar, who noted that they had had some housekeeping help before Mrs. Kumar
went to school, that the amount of help was increased after she started school
and increased further after the accident.  He estimates the incremental cost
due to the accident at an additional eight hours a week at $15 per hour, or
$6,000 per year.  For the period from the accident to the trial, this amounts
to a loss of $28,500.

[59]        
Looking to the future, I must take into account a number of factors
including the impact of employment, the potential for recovery and the effect
of aging.  In the circumstances, I find it appropriate to assess the future loss
at $6,000 per year to age 70, or $99,600, which I reduce to $70,000 to take
into account the contingencies I have discussed.

[60]        
I turn next to the question of the cost of rehabilitation.  As noted, I
accept Ms. Barr’s recommendation that Ms. Kumar attend a
multidisciplinary pain program.  I consider that this holds out the best hope
for improvement.  Ms. Barr recommended the program provided by LifeMark
Health Centre, the total cost for which would range from $8,100 to $13,500
depending on the length of the treatment required.

[61]        
Ms. Barr agreed under cross-examination that the program put on by
the pain clinic at St. Paul’s Hospital could be accessed for free, but when she
prepared her report there were no openings available, and there had not been
any openings for some considerable time.  It is her understanding that openings
are available now, but she knows little else about the program.

[62]        
On this basis the defence submits that I should not make any award as
the necessary treatment can be obtained at no cost.  I do not consider the
evidence to be sufficient to support that contention.  There is nothing from
which I can conclude that it is in fact probable that Mrs. Kumar would
obtain at no cost the treatment she needs from that program.  Accordingly, I
award the sum of $13,500, being the top end of the range recommended by Ms. Barr. 
Given the tenor of Ms. Barr’s opinion, I infer that the maximum length of
treatment holds out the greatest chance of success.

[63]        
Mrs. Kumar is also entitled to her special damages as claimed in
the amount of $1,417.84.

[64]        
In summary, I award Mrs. Kumar damages as follows:

In addition, Mrs. Kumar is entitled to pre-judgment
interest on the awards for past pecuniary loss.

[65]        
Are there any submissions concerning costs?

[66]        
MR. BURGOYNE:  No, My Lord.  Thank you.  The costs should follow
the event in the usual course.

[67]        
THE COURT:  There is nothing I need to know about, is what I am really
asking?

[68]        
MR. BURGOYNE:  No.

[69]        
THE COURT:  Mr. Moen?

[70]        
 MR. MOEN:  No.

[71]        
THE COURT:  Very well.  The plaintiff will have her ordinary costs at
Scale B.

[72]        
MR. BURGOYNE:  Thank you, My Lord.

"GRAUER, J."