IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140725

Docket: M074448

Registry:
Vancouver

Between:

Sallen Hua Van

Plaintiff

And:

Jordan Paul
Howlett

Clayton Farley
Howlett

Defendants

Before: The Honourable Mr. Justice
Grauer

Reasons for Judgment

I.                
INTRODUCTION

[1]            
The plaintiff, Sallen Hua Van, suffered significant injuries in a motor
vehicle accident that happened shortly before 5:00 AM on July 18,
2007.  Ms. Van was a front seat passenger and was ejected from the vehicle
in the violent aftermath of the collision.  The most serious of her injuries
was, and remains, permanent traumatic brain injury.

[2]            
This case concerns the assessment of Ms. Van’s damages.  All
liability issues have been resolved save one:  was Ms. Van wearing her
seatbelt at the time of the collision, and if not, should her damages be
reduced for contributory negligence on her part?

II.              
THE PLAINTIFF

[3]            
Sallen Van was born on October 4, 1960, in Saigon (now Ho Chi Minh
City), in what was then South Vietnam.  She was the eldest of eight children. 
The family lived just outside of Saigon where their father ran a
wholesale/retail grocery business with a store and warehouse.

[4]            
After the fall of Saigon in 1975, things did not go well for the
family.  The grocery business was confiscated and Ms. Van’s father was
imprisoned for a time.  It was decided that survival required the family to
leave Vietnam on refugee boats.  Because of the danger involved in this
process, Ms. Van’s parents decided to send the children off two at a time
to increase the chance that at least some would make it.  Ms. Van and her
brother William Hua, next eldest after her, were chosen to be the first two to
leave.

[5]            
Ms. Van and Mr. Hua left in November 1978 for Hong Kong
on a boat holding 2,700 refugees.  They then spent a year in a refugee camp in
Hong Kong under the auspices of the United Nations, awaiting word on what
country might accept them.  That country turned out to be Canada.

[6]            
Ms. Van and her brother arrived in Canada in 1979.  She was 18 and
he was 17.  For six months, they took government-sponsored ESL classes every
weekday morning from 7:00 AM to 11:00 AM, after which Ms. Van
worked in a dim sum restaurant, while Mr. Hua worked at a gas station and
delivered papers.  On weekends they picked strawberries on a farm.  Ms. Van
used the income from her two jobs to send money to her family members in
Vietnam and in refugee camps across southeast Asia.

[7]            
Chi Cuong “George” Van was born in Saigon on July 28, 1955, and
like his wife, left Vietnam as a refugee.  He, too, arrived in Canada in 1979,
though by a different route.  Instead of travelling by boat, he left Vietnam by
train into China, spending time at a refugee camp in Guangzhou before being
sent to a labour camp.  He then left China by boat, ending up in the United
Nations refugee camp in Hong Kong.  Like Ms. Van and her brother, he was
accepted for entry into Canada, and met Ms. Van on the flight from Hong
Kong to Vancouver.  Once in Canada, they attended the same ESL class.  They
fell in love.  They married on December 4, 1982.

[8]            
Mr. Van had had some experience as a meat cutter in Vietnam, and
found a job in that capacity with Leon’s Kosher Meats, where he began working
in January 1980.  Ms. Van joined him there after their marriage. 
They continued to work closely together at Leon’s, and its successor, Aviv
Kosher Meats, until that business ran into difficulty in 1998.

[9]            
In the meantime, their first son, Eric, was born on April 16, 1985,
and their second son, Victor, was born on May 12, 1990.  To help meet the
growing financial demands on the family, Mr. Van took on a part-time job
at a Greek restaurant where he worked Friday and Saturday afternoons and evenings.

[10]        
In 1998, with the demise of Aviv Kosher Meats, Mr. and Ms. Van
were obliged to look for new employment.  They found it at a new kosher deli
and butcher shop, Omnitsky’s.  Mr. Van worked as a butcher in the
company’s packing plant on Annacis Island, while Ms. Van worked in the
company’s delicatessen on Cambie Street.  Ms. Van remained there until a
former supervisor, Ms. Zahra Layegh, offered her employment with the
Morrison Group, a food services business that operated at a number of
locations.

[11]        
Ms. Van accepted that offer, and began working as a kitchen helper
at a cafeteria Ms. Layegh managed that was located in the GVRD building on
Kingsway near Boundary Road.  Ms. Van was subsequently promoted to the
position of cook, which she maintained until 2003.  By that time, Ms. Layegh
had been moved by the Morrison Group to manage a large cafeteria at the BC
Cancer Agency building, and she arranged for Ms. Van to go with her to this
new location as a cook.

[12]        
In this position, Ms. Van worked from 5:00 AM to 1:00 PM
Monday through Friday.  Mr. Van would drive her to work before heading to
his job at Annacis Island, which started at 6:00 AM.

[13]        
As her sons became more independent, Ms. Van decided to pursue
additional employment.  An area of interest was in beauty treatments.  She
became certified as a nail technician/manicurist and then obtained part-time
employment in that field at the Orchid Beauty Centre, beginning in September 2005. 
It was a job Ms. Van enjoyed very much.  Her daily habit was to take the
bus to the Orchid Beauty Centre after she finished work at the BC Cancer
Agency, in order to work as a manicurist and pedicurist weekday afternoons and
Saturdays.

[14]        
The proprietor of the salon, Anna Ly, testified that Ms. Van worked
there Monday through Friday from 2:30 PM to 6:30 PM, although
sometimes she did not start until 3:30 PM.  The Saturday hours were 9:30 AM
to 6:30 PM.

[15]        
Mr. Van gave evidence of longer hours, but presumably took into
account travel time.  I accept Ms. Ly’s evidence as to the hours worked.

[16]        
As was the case with Mr. Van’s second job at the Greek restaurant, Ms. Van
was paid cash for her work at the salon.

[17]        
With both of them working two jobs, taking only Sundays off, Mr. and
Ms. Van felt financially secure.  They lived in a condominium apartment
they had bought in 1992, which they sold at a profit in May 2007 with a
view to moving into larger premises.  They were still in the process of
searching for an appropriate replacement when the accident intervened.

III.            
THE ACCIDENT

[18]        
Mr. and Ms. Van rose early on the morning of July 18,
2007, as was their habit.  They left their home at about 4:30 AM in their
2001 Infiniti QS4 so that Mr. Van could drive Ms. Van to her
work at the BC Cancer Agency before heading to Annacis Island.  According to Mr. Van,
things proceeded as usual.  Ms. Van sat in the passenger seat.  He
testified that she reclined the seat back somewhat, perhaps by 25°, and slept.  He
could not say whether or not she was wearing her seatbelt, but, he said, she
usually did.  The red light that warns if the seatbelt is unfastened was not
on.

[19]        
The couple were travelling westbound on Broadway when they entered the intersection
of Broadway and Main Street on a green light.  What happened next, I find,
based on the evidence of Mr. Van and the plaintiff’s accident
reconstruction expert, Gerald Sdoutz, P. Eng., was this.

[20]        
The defendants’ vehicle entered the intersection northbound, against the
red light, and ran into the driver’s side of the Vans’ Infiniti just at the
level of the left rear wheel.  This sent the Infiniti into a counter-clockwise
spin, so that the vehicle continued in a westbound direction, but now leading
with its right (passenger) side as a result of the impact.  As Mr. Sdoutz
described it, this caused it to “trip” over its right-side tires, rolling over
those wheels and launching into the air before slamming down onto the road flat
on its passenger side.  The front passenger window was shattered.  The vehicle
continued to slide westbound on its passenger side, still rotating on a
horizontal axis, until it hit the curb and somehow bounced back into an upright
position.  When it did so, Ms. Van was left behind on the ground.

[21]        
Although it is not recorded where Ms. Van ended up, I accept the
opinion evidence that she would have continued sliding along the pavement,
decelerating until she came to a stop within four metres of where she left the
vehicle.

[22]        
A number of photographs were taken by the police.  According to Mr. Van,
nothing was done to the interior of his vehicle between the time of the
collision and the time that the photographs were taken.  I accept that
evidence.  The photographs (19, 23 and 24 at Tab 1 of Exhibit 1) show,
and I find, that Ms. Van’s seatbelt was fastened and that the back of her
seat, if it was reclined at all, was reclined only slightly.

IV.           
THE INJURIES

[23]        
The expert opinion evidence concerning Ms. Van’s injuries is not
disputed.  In essence, Ms. Van suffered serious injuries to her head and
face, including right sided facial fractures and multiple dental injuries.  She
also sustained fractures of the right fourth and fifth ribs, and bruising to
the right lung.

[24]        
Ms. Van was taken by ambulance to Vancouver General Hospital where
she required surgical treatment for her facial fractures and dental injuries. 
She remained in the intensive care unit for a prolonged period, and ultimately
was transferred to the Acquired Brain Injury Program at the G.F. Strong Rehabilitation
Centre on August 29, 2007.  Ms. Van remained an inpatient at G.F.
Strong until September 24, 2007, and continued thereafter with outpatient
treatment.

[25]        
Dr. Gerald Wittenberg is the oral surgeon who performed surgery on Ms. Van
to repair her facial trauma.  He reported that, in addition to the fractures to
the bones on the right side of her face, Ms. Van suffered the loss of six
teeth with four fractured or chipped teeth.  Dr. Wittenberg performed
additional surgery on December 20, 2010, transplanting bone from Ms. Van’s
right hip to her upper jaw in preparation for dental implants.  He placed the
implants in June 2011 and subsequently crowned them.

[26]        
Dr. Jason Clement, a radiologist and a specialist in neuroimaging,
provided the lead opinion concerning Ms. Van’s brain injury, and I do not
hesitate to accept his evidence.  He noted that MRI investigation disclosed
severe diffuse axonal injury (“DAI”) including grade 1, 2 and 3 lesions,
as well as additional intracranial injuries in the form of subdural and
subarachnoid haemorrhage.  A grade 3 DAI lesion involves the brainstem and
is the most severe grade.  These lesions act as markers for diffuse underlying
injury throughout the brain resulting in significant chronic cognitive
dysfunction and impairment in all cognitive domains.  In fact, Dr. Clement
explained, this type of injury is more consistent with people in a persistent
vegetative state, which Ms. Van is not.

[27]        
The severe DAI sustained by Ms. Van is also known to trigger
progressive cerebral atrophy leading to an increased risk of progressive
cognitive decline and premature dementia.  In addition, the multiple focal
brain injuries have left her with a lifelong increased risk of seizures.

[28]        
Dr. Clement explained that people do not recover from this sort of
injury, and that the treatment focus must be on reducing further decline to the
extent possible.

[29]        
Dr. Roy O’Shaughnessy, a specialist in forensic psychiatry, also testified,
and I accept his evidence as well.  In his first report, dated November 25,
2009, he noted that Ms. Van was by then two years post-accident and deemed
to be at the maximum level of recovery.  She was left with considerable
deficits.  These included significant cognitive impairment with problems in
short-term memory, awareness, and tangential thinking (so that in conversation,
it is necessary to keep bringing her back to the point where the discussion
started).

[30]        
Importantly, he found that Ms. Van was also left with significant
problems in executive functioning due to frontal lobe injury.  This area
comprises three circuits:  (1) concentration and organisation; (2)
motivation; and (3) inhibition.  All three are affected because of the
inability of the neurons to communicate as a result of the severing of axons. 
The result is problems in organizing and initiating activity, and difficulties
with planning and judgment.  For instance, Ms. Van is capable of enjoying
a lunch out with a friend or family member who arranges it, but she is
incapable of initiating or planning such an event, and, due to her lack of judgment
and inhibition, may treat a server rudely and act inappropriately.  As Dr. O’Shaughnessy
explained, Ms. Van’s ability to monitor her own functioning is
significantly impaired, “like a computer that has been dropped”.

[31]        
This has resulted in a persistent change in personality and functioning
including daily difficulties with irritability, outbursts of temper and control
of emotions.  All of this is complicated by an underlying state of depression
that is exceedingly difficult to treat.  As Dr. O’Shaughnessy explained,
the human brain is the most complex organism in the universe.  Given how little
we understand it, treating depression in this context is really a
polypharmacological crapshoot that requires very careful supervision by a
psychiatrist.  Consequently, he was of the view that although some improvement
in moods might be possible through tweaking pharmacological interventions, he
doubted that she would ever achieve remission in her state of depression.  Even
successful treatment of depression would not solve the problems in cognitive
and executive function that result from her frontal lobe impairment.

[32]        
Reports were submitted from Dr. James Schmidt, a specialist in
clinical neuropsychology.  He was not required for cross-examination.  His
conclusions were similar to those of Dr. O’Shaughnessy: Ms. Van is
significantly impaired behaviourally, emotionally and cognitively as a result
of traumatic brain injury and depression.

[33]        
Consistent with these opinions was that of Dr. Dean Foti, a
specialist in general and behavioural neurology, who also did not testify.  Dr. Foti
noted severe traumatic brain injury causing serious cognitive deficits with
persistent problems in verbal output (including a change in her accent when
speaking Cantonese) and executive function, together with significant emotional
dysfunction due to the combination of traumatic brain injury with persistent
depression.  In addition, he reported persistent headaches, persistent diplopia
(double vision) and impaired motor control of the right arm and leg, especially
involving involuntary movement of the right leg.

[34]        
All are agreed that Ms. Van is competitively unemployable and that
the prognosis is one of deterioration, not improvement.

[35]        
Dr. David Chan, a registered psychologist, has treated Ms. Van
since the accident.  His report was entered into evidence without the necessity
of his attendance for cross-examination.  He opined:

Psychologically, Ms. Van has developed a major
depressive disorder of moderate to severe severity and symptoms of anxiety and
stress and anger.  She also exhibits symptoms of attention/concentration and
memory difficulties, chronic pain, sexual dysfunction, sleep disturbances and
suicidal thoughts and radiation.  Ms. Van is in need of treatment of both
pharmacotherapy and psychotherapy for her psychological/psychiatric condition.

From my treatment with Ms. Van and information from her
medical documents, it is my considered opinion that Ms. Van would probably
have not developed the psychological/psychiatric difficulties if she had not
been involved in the motor vehicle accident in question.

With respect to Ms. Van’s
prognosis, literature indicates that most spontaneous brain injury recovery
take[s] place within two years post injury.  Given that she is four years
post-injury and that her current neuropsychological profile does not indicate
improvement over the past years, her cognitive impairment and the effects of
the brain injury, in my opinion, are most likely permanent.  Furthermore, she
has received multidisciplinary rehabilitation treatment, targeting her mood
issues and physical difficulties.  Despite her active participation in the
rehabilitation treatment, her depression, headaches and physical problems have
persist[ed].  Due to the chronicity of these issues, her limited responses to
various treatments thus far, and the interactive and reinforcing nature of her
symptoms, it is my opinion that her emotional status and physical difficulties
are unlikely to improve significantly.  When a person has multiple interacting
impairments such as in Ms. Van’s case, treatment of any one of those
impairments is far more difficult and less likely to succeed than in the case
where one of those difficulties exists in isolation.

[36]        
I accept this evidence.

V.             
DISCUSSION

1.              
Non-pecuniary damages

[37]        
In considering this aspect of the claim, I take into account the medical
evidence reviewed above.  In addition, Ms. Van’s husband, sister and sons gave
extensive evidence about the impact of these injuries on Ms. Van’s life. 
It is clear that injuries Ms. Van suffered in the accident have had an
enormous impact not only on her, but also on her family.

[38]        
Ms. Van’s personality has changed completely.  Previously an
outgoing, cheerful, hard-working and personable woman who took great care with
her personal appearance, she has become a mere shell of her former self.  She
blames her husband for the accident, is often angry, critical and verbally
abusive, picks fights with neighbours, cannot make decisions, is careless in
her personal hygiene and appearance, and is forgetful and unreliable.

[39]        
Mr. Van has become Ms. Van’s primary caregiver and has given
up his second job to allow him to undertake many of the family chores and to provide
care.  Her sons have testified to her lack of impulse control over buying
things (one of the few things she enjoys doing), and her unwillingness to throw
anything away.  As a result, what was a tidy home now resembles a junkyard. 
She has increased sensitivity to sound, and lacks impulse control.  This has
led to conflicts with neighbours that have required the family to move on
several occasions.

[40]        
These conflicts, together with Ms. Van’s verbal abusiveness towards
her husband, combined to create an environment of dysfunction that drove the
elder son, Eric, to move from the house.  The mother he had known as a caring,
loving, happy and polite woman who put everyone in ahead of herself, was now a
stranger, abusive to both her husband and her younger son, and exhausting to be
around.  She was not, he said, abusive towards him because he was always her
favourite.

[41]        
One of the things Eric Van can do for his mother is take her out to
dinner, which she enjoys, although she is not capable of initiating such an
excursion.  When he does so, he picks her up, assists her in walking to the car
because of her unsteady gait and need for a cane or walker, assists her in and
out of the vehicle, and walks her into the restaurant.  Stairs are a struggle. 
He orders for her because she is not capable of looking at a menu and making up
her mind.  She has little appetite.  They talk, but she often talks about
things he is not able to understand, and stutters a lot.  She is rude and
demanding to staff, and her behaviour is frequently childlike and
inappropriate.  He finds it embarrassing.  She was always polite, engaging and
cheerful before the accident.  I accept his description.

[42]        
Ms. Van testified, although her counsel warned that she would be an
unreliable historian.  The extent of her disability was manifest.  Her
testimony was slow and laborious.  She displayed a reasonably reliable
long-term memory, though accessed only with considerable effort, and an
unfortunate awareness of her present limitations.  Her life is now one of
discomfort, frustration and anger.

[43]        
The question here is whether I should assess Ms. Van’s
non-pecuniary damages at the upper limit, reserved for catastrophic injury, or
at something lower.  On the evidence, the upper limit of $100,000 set by the
Supreme Court of Canada in January 1978, adjusted for inflation, is now $351,000.

[44]        
The Court of Appeal upheld an award of non-pecuniary damages for severe
traumatic brain injury at the upper limit (then $280,000) in Spehar v
Beazley, 2004 BCCA 290.  The plaintiff in that case was 16 years old at the
time of injury.  From the trial judge’s description quoted by the Court of
Appeal, it would seem that Ms. Spehar’s situation was very similar to that
of Ms. Van, and it was considered significant that Ms. Spehar was
aware of what she had lost.

[45]        
The defendants submit that an award of $250,000 would be appropriate. 
He points to the award in that amount made by Mr. Justice Sewell in the
case of Yick v Johnson, 2012 BCSC 1485, which, the defendants say,
involved almost identical circumstances.

[46]        
While it is true that the injuries suffered by the plaintiff in the Yick
case also included traumatic brain injury that resulted in permanent cognitive
impairment, double vision, personality change and complete loss of income
earning capacity, I do not agree that the case is, as the defendants submit, a
near exact match.  Unlike Ms. Van, Ms. Yick was still able to prepare
evening meals for her husband and herself, although requiring longer to do so,
was independent in matters of personal care, was able to travel to Hong Kong
without her husband, and was able to take several overseas trips with her
husband.  Ms. Van is not in the same position.  Ms. Yick could still
sustain everyday levels of relational intimacy with her husband (such as
preparing meals, and travelling together) that are far beyond Ms. Van’s
reach.

[47]        
The defendants refer also to O’Connell v Yung, 2010 BCSC 1764,
where a 58-year-old female plaintiff who suffered traumatic brain injury was
awarded non-pecuniary damages of $275,000.  That award was upheld on appeal,
indexed at 2012 BCCA 57:

[46]      In my opinion, the
judge in the instant case applied the correct legal principles and it cannot be
said that her award of non-pecuniary damages is tainted by clear and
determinative of error.  The award of $275,000 may be at the high end of the
appropriate range for such damages, but it cannot be said, in the circumstances
of Ms. O’Connell, to be an inordinately high or erroneous assessment of
non-pecuniary loss.

[48]        
What were Ms. O’Connell’s circumstances?  Like Ms. Van, the
brain injury Ms. O’Connell suffered had a profound effect on her life, although
unlike Ms. Van, Ms. O’Connell had significant pre-existing
conditions: benign multiple sclerosis and Grave’s disease.  As the trial judge
noted at para 84 of her judgment, Ms. O’Connell, like Ms. Van,
lost the ability to live independently, to relate to her loved ones in a
meaningful way, and to work at a job she enjoyed.  Her cognitive dysfunction
was not, however, as severe as Ms. Van’s, and was not complicated by any
psychiatric conditions such as depression or anxiety.  Crucially, Ms. O’Connell
appeared to the trial judge to be relatively content, with little awareness of
her condition.  Indeed, it was her limited insight into the nature of deficits
that allowed her to avoid depression (para 49).  Ms. Van’s
circumstances, I find, are significantly worse.

[49]        
Assessing non-pecuniary damages is not, of course, a matter of simply
comparing injuries on a scale that ends at the upper limit.  A trial judge is
obliged to balance the need to arrive at an award that is specific to the
plaintiff and reasonable to both parties, with achieving a result that is
consistent with the fundamental principle that like cases be decided alike.

[50]        
On the evidence before me, I have no difficulty in concluding that the
injuries suffered by Ms. Van are catastrophic.  We are, in any practical
sense, our brains.  A brain injury of this degree of severity is a loss of
one’s very self.  Like Ms. Spehar, Ms. Van “has lost what to many is
one of the most valuable aspects of being an adult human — the ability to have
control over one’s own life” (Spehar at para 13).  No aspect of her
life, including her closest relationships, has been left unimpaired.  Her
outlook for the future is dismal.  Her days are filled with pain and
frustration.  There is no possibility of recovery.  The best she can hope for
is that her deterioration will be slowed, and that her anger, frustration and
depression can be addressed through medication and distraction.  At worst, she
will experience a premature and accelerated descent into dementia, losing what
little has been left to her.

[51]        
In these circumstances, I conclude that Ms. Van is entitled to an
award at the upper limit.  I assess her non-pecuniary damages at $351,000.

2.              
Loss of income

[52]        
There is no doubt that Ms. Van has been rendered unemployable by
the injuries she suffered in the accident.  I am also satisfied that she was a
hard-working and reliable employee who was very much attached to the workforce,
and who would have continued working in her two jobs but for the accident.

[53]        
The parties are agreed as to the rates of pay that Ms. Van would
have earned from her job with the Morrison Group as a cook at the BC Cancer
Agency between the date of the accident and the time of trial.  They are also
agreed on the hours she would have worked.  At issue is her claim for non-wage
benefits, the date at which she would have likely retired, and her claim for
past and future loss of income arising out of her employment as a nail
technician/manicurist.

(a)           
Non-wage benefits

[54]        
In her job at the BC Cancer Agency, Ms. Van had access to non-wage
benefits pursuant to the terms of two collective agreements in force during her
employment.  Relying on Towson v Bergman, 2009 BCSC 143 at paras 329-331,
the defendants object to including the non-wage benefits in assessing the loss
of income.  They argue that benefits such as extended health and dental
benefits are only of value if Ms. Van was likely to use them, and that in
this case, her claim for special damages (which is mostly agreed) and future
care costs replace any loss associated with not having access to such benefits
after the accident.  I agree.

[55]        
I also agree that so long as Ms. Van’s award for her loss of income
is based upon full-year earnings, she is fully compensated for the value of
vacation benefits, and any entitlement to sick days.

[56]        
This leaves only her loss of the benefit of premiums paid by the
employer for life and accidental death & dismemberment insurance.  With
respect to Ms. Van’s claim for a past loss of income, the defendants
argue, and I accept, that this represents no past loss of value to Ms. Van
given that she has not required the insurance and did not replace it.  It does,
however, give rise to a claim going forward.

(b)           
Age of retirement

[57]        
The plaintiff submits that in assessing her future loss of income, I
should assume that she would work well past the age of 65.  I note that by the
time she reaches the age of 65, her husband will be 70, and her children will
be 35 and 40.

[58]        
The plaintiff bases her submission on her well-established attachment to
the workforce, and the fact that she and her husband would probably have had a
mortgage to pay off on a new home.

[59]        
It is entirely possible that Ms. Van would have worked past age 65,
all things being equal, given that she has been no stranger to hard work.  That
she and her husband may have had a mortgage to pay off, and how that might have
affected their intentions, is largely speculation.  Neither gave evidence of
having a particular retirement age in mind.  There was also evidence of back
difficulties Ms. Van suffered before the accident, due to degenerative
disc disease.  This did not impair her work, but could have led to difficulties
in the future.

[60]        
Taking this contingency into account and balancing it with Ms. Van’s
exemplary work history and societal trends, I find that Ms. Van probably would
have retired from her position as a cook at 65, but would likely have continued
working in the beauty field to a later age, probably 67.  Her job as a nail
technician was not physically demanding, and was one that she enjoyed very
much.

(c)           
Income as a nail technician

[61]        
I have no difficulty in accepting that Ms. Van worked part-time as
a nail technician/manicurist at the Orchid Beauty Salon, that she enjoyed the
work, and that she would have continued to work in this position.  The
difficulty is that there is no direct evidence of what Ms. Van earned in
that job.  She did not declare the income on her tax returns and was not asked
about it when she testified.  She produced no banking records.

[62]        
Her employer, Ms. Ly, testified that a pedicure cost $19 and took
45 minutes, while a manicure cost $15 and took 20 minutes.  The technician
would receive 60% and keep her tips.  Customers would pay in cash or by credit
card.  The cash would be paid directly to the technician.  Ms. Ly would
issue cheques for the technician’s share of the credit card payments.  While I
accept this evidence, I note that no credit card receipts or cheques were
produced.

[63]        
Ms. Ly went on to say that full-time nail technicians can make $200
per day “when busy”.  Given Ms. Van’s schedule, Ms. Ly thought that
she would earn $150 on weekdays, and perhaps $200 on Saturdays.  This, in my
view, was evidence entitled to little weight in the absence of any record of
earnings of any kind.  It would suggest that every minute of Ms. Van’s working
hours were occupied by appointments, and that she was tipped generously.  There
was in fact no evidence of just how busy she typically was.

[64]        
In these circumstances, it is impossible to assess with precision Ms. Van’s
loss of income from her inability to work as a nail technician/manicurist. 
Nevertheless, it is clear that she did earn an income from that position, and
is no longer capable of doing so.  Moreover, I am satisfied on the evidence
that she would have worked a part-time job of this nature throughout the
remainder of her working career.  I must accordingly do the best I can to assess
the loss she has thereby suffered: Iannone v Hoogengraad (1992), 66
BCLR (2d) 106 (CA).

[65]        
The plaintiff submits that the evidence supports an annual income from
this job of $35,000, at the low end of the range derived from the figures
discussed by Ms. Ly.  The defendants assert that a total loss of
capacity award in excess of $50,000 cannot be justified.

[66]        
In my view, even without specific wage information, the evidence does
support a greater loss, assessable on an annualized basis, than the defendants
suggest.  The evidence does not, however, go so far as to allow me safely to
conclude that the figure proposed by the plaintiff of $35,000 per annum is
justified for the part-time work Ms. Van was performing.  That would
require direct evidence.

[67]        
Taking into account: Ms. Van’s exemplary work habits; the rates
discussed by Ms. Ly; the hours that Ms. Van spent at the salon; the
fact that the work was not highly remunerative but did include tips; and the need
to be reasonable to both sides in the absence of specific evidence, I assess Ms. Van’s
income earning capacity for a second part-time job to be $20,000 per year to
age 65.

[68]        
After her retirement from her position as a cook, I am satisfied that Ms. Van
would have substantially increased her hours as a nail technician, a job that
she enjoyed and which was physically undemanding.  Assessing the possibilities,
I conclude that she would have earned $35,000 annually for a further two years
after her retiring from her full-time job.

(d)           
Assessment

(i)             
Past loss of income

[69]        
With respect to the appropriate calculation of Ms. Van’s loss of
income from her job as a cook, I accept the figures put forward by the
defendants, calculated on the basis of the Agreed Statement of Facts.  These
calculations are based on the terms of successive collective agreements, rather
than calendar years, and yield a total gross loss of $210,903.42.  To this
should be added Ms. Van’s loss from her employment as a nail technician,
which I assess as follows in accordance with my findings above:

[70]        
The total gross figure, then, comes to $340,711.42.  Any negative
contingencies are in my view balanced by the positive contingencies, which
include Ms. Van’s attachment to the workforce, her strong work ethic, and
the possibility that she could have made additional income from her second
job.

[71]        
This gross past income loss figure of $340,711.42 must be reduced for
income tax and Employment Insurance contributions.  I will leave it to counsel
to calculate the appropriate annual deductions in accordance with my findings and
the figures produced by Mr. Robert Carson of Associated Economic
Consultants Ltd in Exhibit 18.

(ii)            
Future loss of income

[72]        
Again based on the Agreed Statement of Facts, Ms. Van’s annual
income from her job as a cook as at the trial date is $34,551.12.  To this must
be added $20,000 for her job as a nail technician for a total income of
$54,551.12.  On the evidence (Exhibit 20), the appropriate multiplier is 10.554,
for a total present value of $575,732.52.

[73]        
I include a further amount to take into account my finding that Ms. Van
would have continued working as a nail technician from age 65 through age 67
at $35,000 per annum in 2014 dollars.  The present value of this sum is $54,810. 
This yields a total future loss of $630,542.52.

[74]        
Once again, I consider the additional contingencies are balanced.  To
give some consideration to the loss of future life insurance benefits, I round
this figure up to an award for loss of future income of $635,000.

3.              
Future care costs

(a)           
Overview

[75]        
The law in this area is not in doubt.  As the Supreme Court of Canada
noted in Krangle (Guardian ad litem of) v Brisco, 2002 SCC 9,
[2002] 1 SCR 205:

[21]      Damages for cost of future care are a matter of
prediction.  No one knows the future.  Yet the rule that damages must be
assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can.  In doing so, courts rely on the evidence as to what
care is likely to be in the injured person’s best interest.  Then they
calculate the present cost of providing that care and may make an adjustment
for the contingency that the future may differ from what the evidence at trial
indicates.

[22]      The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require.  Jane Stapleton, “The Normal Expectancies Measure in Tort
Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the
tort measure of compensatory damages may be described as the “‘normal
expectancies’ measure”, a term which “more clearly describes the aim of awards
of compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached . . . had it not been for the tort”.
The measure is objective, based on the evidence.  This method produces a
result fair to both the claimant and the defendant.  The claimant receives
damages for future losses, as best they can be ascertained.  The defendant is
required to compensate for those losses.  To award less than what may
reasonably be expected to be required is to give the plaintiff too little and
unfairly advantage the defendant.  To award more is to give the plaintiff a
windfall and require the defendant to pay more than is fair.

[76]        
Items claimed must be shown to be medically justified, but medical
necessity is too stringent a requirement given the interplay of psychological
and emotional factors.  Reasonableness is essential.  See Zapf v Muckalt
(1996), 26 BCLR (3d) 201 (CA) at para 36.  Moreover, measures that provide
solace but are not likely to result in medical benefit should properly be
compensated under the heading of non-pecuniary damages, rather than as a
compensable cost of future care: Ho v Dosanjh, 2010 BCSC 845 at
para 91; and Harrington v Sangha, 2011 BCSC 1035 at para 153.

[77]        
Predictably, the parties advanced very different care concepts.  The
defendants, in essence, submit that the level of care that Ms. Van has
been receiving since the accident is appropriate and should continue.  The
plaintiff argues that a significantly higher level is justified and should be
provided.

[78]        
One of the questions that the defendants submit is key is whether Ms. Van
would accept the care plan proposed by her counsel.  A person, argues the
defendants, must not only be capable of assimilation into a proposed care
program, but be a willing participant.  Ultimately, the defendants point out, Ms. Van
is the person in control of her care.  While the court can make various awards,
it cannot require her to spend the money for specific purposes.  The defendants
refer to the evidence of their expert occupational therapist, Natalia Allende
of OT Consulting/Treatment Services Ltd., who stated that if Ms. Van is
unwilling to accept advice or is resistant to an increased level of assistance,
it serves no purpose to force it on her.  Indeed, Ms. Van has a history of
disagreements with her care workers that have led to several changes in
personnel.  There is no doubt that she has difficulty relating to other people.

[79]        
I reject, however, the proposition that if an injured person’s judgment
is so impaired by the injuries the defendants caused that she may not be
depended upon readily to accept care that is medically justified and
reasonable, no award should be made for that level of care.  Clearly what is
needed is assistance that will allow Ms. Van to avoid the untoward
consequences of her own lack of judgment, so long as that assistance is
available, reasonable, and medically justified.

(b)           
  Life expectancy

[80]        
On this issue, I accept the opinion evidence of Dr. Tom Elliott as
set out in his report, and as modified in light of further information in his
evidence at trial.  This results in an estimated remaining period of life as of
the date of trial of 26 years.

(c)           
The current regime

[81]        
Ms. Van’s care since the accident has been under the management of Ms. Sandra
Caverly, a consultant occupational therapist retained for this purpose by the
Insurance Corporation of British Columbia’s Rehabilitation Department.  Ms. Caverly
has worked as an occupational therapist since graduating from the University of
British Columbia with a Bachelor of Science in occupational therapy in 1989. 
She underwent clinical training in a post-graduate acute-care clinical setting
at St. Paul’s Hospital, which included working with persons who had suffered
traumatic brain injury.  Over the last 17 years, persons with traumatic brain
injury have accounted for 60% of her caseload.

[82]        
Ms. Caverly was not called to give expert opinion evidence, but
rather to give factual evidence as to her management of Ms. Van’s care.  I
found her to be a most impressive and reliable witness, and I do not hesitate
to accept her evidence.

[83]        
Ms. Caverly explained that in working with Ms. Van on referral
from ICBC’s Rehabilitation Department, she was obliged to work within the
guidelines of ICBC’s no-fault medical benefits coverage (“Part VII benefits”),
which provide for a limit of $150,000 per accident for medical and
rehabilitation services.  When preparing independent medical-legal reports, she
employs a different perspective, and different parameters, because she is not
then bound by coverage guidelines and funding restrictions.

[84]        
Ms. Caverly noted that Ms. Van’s needs were complicated by her
chronic pain, ambulatory difficulties, confusion, memory deficits,
distractibility, a limited ability to follow instructions, depressed emotional
status, angry outbursts and perseveration.  Consequently, she required
assistance in all areas of living including making sure that she attended her
many appointments (speech therapy, physiotherapy, psychology, etc), the setting
up of appropriate services, and communication to ICBC of recommendations for
services, transportation and planning.

[85]        
Ms. Caverly explained that most of the care is currently provided
by Ms. Van’s family.  A support worker attends for four hours a week, and
the family (principally Mr. Van) provides the remainder of the required
care: reminding Ms. Van of appointments, providing all meals, assisting
with shopping, attending appointments with her, addressing problems including
disagreements Ms. Van may have with taxi drivers or the HandyDART
attendant, encouraging her and assisting her in attending family events, taking
her to her visits to the Chinese Brain Injury Support Group, and monitoring her
medications.

[86]        
Ms. Van does not sleep well, and so requires someone to be with her
at night, which service is fulfilled by her husband.  They sleep separately,
but Mr. Van is available should Ms. Van get up and start roaming
about the apartment.  He also prepares meals in advance so that she can warm
them up while he is away at work during the day.  She has been known to be
forgetful in this regard, resulting in the burning of her food, but generally
is able to function at this level.

[87]        
Ms. Caverly did recommend respite care to provide relief for Mr. Van,
and to provide assistance when Mr. Van had to leave town to look after his
parents, but this was turned down as not coming within the coverage.

[88]        
Given the dynamics of this trial, Ms. Caverly found herself in a
somewhat delicate position.  Testifying as a witness for the plaintiff, her
connection to Ms. Van was nevertheless through a referral from ICBC rather
than an independent retainer.  In cross-examining her, counsel for the
defendants sought to create the impression (notwithstanding his objection to
anything led from her in chief that resembled an opinion) that Ms. Caverly
must consider this current regime to be safe and appropriate for Ms. Van,
or she would have recommended additional services.

[89]        
There is no doubt that some of the specific therapeutic services
provided through ICBC’s Rehabilitation Department have achieved the desired
goals.  Physiotherapy services were provided until the consultant
physiotherapist recommended discharge from the program (February 2009),
once an activation program had been well established.  The therapist
recommended that Ms. Van continue with a gym program assisted by a
Rehabilitation Assistant, three times per week, to include gym and pool, and
supervised by the Occupational Therapist (Ms. Caverly).

[90]        
Similarly, ICBC’s rehabilitation program covered speech language therapy
once a week through 2008, then once every two weeks, and finally once a month
until discharge in May 2009.  The Speech-Language Pathologist noted good
progress in Ms. Van’s communication, and reported that she had met most of
her therapy goals.  She recommended discontinuation of formal speech-language
therapy, and greater involvement in community and leisure activities where a
1:1 worker can provide continued support.

[91]        
I am satisfied, however, that apart from such services as these, Ms. Caverly
considers the current care regime to be safe and appropriate only within the
parameters permitted by the guidelines and limits of ICBC’s no-fault benefits
coverage.  That coverage of necessity does not purport to provide care to the level
applicable to a claim in tort law.  To do so would produce an impossible strain
on public resources.  Ms. Caverly was well aware of this, and it is only
in this context, I find, that she did not recommend additional services (other
than respite care, which was refused).  That Ms. Caverly was able to “make
do” with the services available in overseeing Ms. Van’s care does not of
itself establish the standard for the appropriate level of care given Ms. Van’s
condition and needs.

[92]        
With respect to what additional services are appropriate for Ms. Van
going forward, I turn next to consider the competing future care reports.

(d)           
The future

[93]        
For her future care needs, the plaintiff relies principally upon a
series of reports from Dr. H. A. Anton, a specialist in physical medicine
and rehabilitation, and a Life Care Plan prepared by Carolyn Degenhardt, a
Vocational Rehabilitation Counsellor and Registered Rehabilitation
Professional.  The defendants rely on a medical/legal report and a cost of
future care analysis prepared by Ms. Allende, who holds a Master of
Science degree in Occupational Therapy from the University of Toronto.

[94]        
The defendants submitted that, as an occupational therapist, Ms. Allende
is a trained medical professional whose evidence should therefore be preferred
to that of Ms. Degenhardt, who is not.  I agree that Ms. Degenhardt
occasionally strayed outside her area of qualification and expertise, but
generally, I find that by reason of her education, training and experience, she
was qualified to offer the opinions she presented.

[95]        
While both of these experts were generally reliable, I found
shortcomings in the recommendations of each.  Ms. Degenhardt made a number
of recommendations that, in my view, cannot be justified on the medical
evidence.  Ms. Allende, on the other hand, relied in part on the
proposition that Ms. Van is likely to improve somewhat, which prospect was
entirely unsupported by any evidence before me, and seemed too swayed by
concern about “whether Ms. Van would be amenable to a higher level of
support than what she is presently receiving”, notwithstanding the medical
evidence and recommendations.

[96]        
Dr. Anton noted that Ms. Van will be unable to resume the
social roles that were normal for her before the accident, and will be unable
to participate in anything more than light housekeeping.  She will require
assistance with financial management, is at risk for the development of
post-traumatic seizures, and is at increased risk for falls and injuries
including vertebral or long bone fractures due to her residual mobility
problems.  He recommended that her function at home and in the community be
reviewed by an occupational therapist.  He also noted that her family should be
provided the opportunity to participate in counselling as needed now and in the
future.

[97]        
Dr. Anton further reported that Ms. Van’s care needs include
programs of stimulation, socialization, regular participation in exercise, and
participation in recreational activities at home and in the community, all
under the direction of an occupational therapist with experience and expertise
in the management of persons with traumatic brain injury.  This indeed is what Ms. Caverly
has been doing within the parameters available to her.

[98]        
Given her overall circumstances, Dr. Anton expressed the opinion
that Ms. Van probably cannot safely be left alone for more than “very
short periods”:

That does not mean she needs
direct “hands-on” care but rather she needs someone to assist her in the event
of an unexpected problem like a fall or emergency like a fire.

[99]        
While I accept Dr. Anton’s opinion in this regard in general,
experience since he prepared his opinion has demonstrated, as he was prepared
to concede, that “very short periods” can extends to hours, not minutes,
although this has generally been as a matter of necessity, not of preference. 
Nevertheless, the reality, I find, is that Ms. Van cannot safely be left
alone for any extended period.  Essentially, as Dr. Anton noted, she
requires supervision or support of some degree 24 hours per day.  At present,
as Ms. Caverly testified, this burden falls on her family, except for four
hours per week.

[100]     Thus, Dr. Anton
observed, and I find, Ms. Van is currently very dependent on her husband
and family, who are at significant risk for caregiver burnout.  In Dr. Anton’s
view, which I share, they require support to reduce that risk, which, if it
came to pass, would leave Ms. Van in an untenable situation.

[101]     A concern
expressed by many is that Mr. Van may come to the end of his tether and
leave the marriage.  Indeed, given the level of emotional abuse which he is
obliged to withstand, Ms. Van’s own siblings have indicated to him that he
should not hesitate to do so if necessary to preserve his own health.  I am
satisfied that Mr.  Van is a dedicated husband who is unlikely to leave
his wife notwithstanding her terrible injuries and the changes she has
undergone, and will continue to provide care, so long as appropriate support is
in place.  He is nearly 60 years old, however, and cannot, and should not,
continue to bear this burden almost alone.  Ultimately, that would leave Ms. Van
in an unacceptably vulnerable position.

[102]    
In these circumstances, I have come to the following conclusions with
respect to the recommendations of Ms. Degenhardt, as reviewed by Ms. Allende:

1.     Diagnostic
Imaging

I find that compensation for the private costs of
diagnostic procedures is not medically justified.  These will be covered by the
medical services plan, and there is no evidence of urgent need that would
justify the cost of a shorter waiting period.

2.     Medications

There is no doubt that Ms. Van has an ongoing
need for medication.  She will undoubtedly be subject to a substantial
deduction for her Pharmacare coverage.  The exact cost is unknown because of
the need to try various different medication regimes in relation particularly
to her depression.  I consider that Ms. Degenhardt’s recommendations
provide an appropriate basis for assessing these needs, and conclude that, take
into account an appropriate reserve for further medication needs, an annual figure
of $2,500 is justified.

3.     Psychological
Services

These are more than justified on the evidence of Dr. O’Shaughnessy,
Dr. Schmidt, Dr. Anton and Dr. Chan.  I do not, however, agree
with Ms. Degenhardt’s recommendation of reserve for future neuropsychological
assessment.  I accept that Ms. Van will require 12 1 hour sessions per
year at $175/hour, and that an allowance must also be made for family
counselling, which is justified for the benefit of Ms. Van.  As noted by Ms. Allende,
the annual cost for Ms. Van is $2,100, or $2,205 with GST.  In addition, I
award a one-time amount for family counselling of $2,500.

4.     Physical
Therapy

The evidence indicates that an intensive physiotherapy
program is no longer required.  I find that two sessions per year for review
and updating of Ms. Van’s exercise regime are justified, at an annual cost
of $150.

5.     Occupational
Therapy

Ms. Degenhardt separates the roles of
Occupational Therapist and Case Manager, whereas in Ms. Allende’s view,
only one person is required to perform both roles.  I prefer Ms. Allende’s
approach in this regard, but given the difficulties in managing Ms. Van’s
relationship with caregivers, I find that 14 hours per year is justified at a
rate of $105/hour, increased by 20% for travel time and costs.  This yields an
annual cost of $2,016.  To this should be added an additional one-time cost of
$420 for assessing, planning and organizing Ms. Van’s ongoing care at the
start of this regime.

6.     Speech-Language
Therapist

Given the views of the speech therapist with whom Ms. Van
previously worked, I do not find that any further expense under this heading is
justified.

7.     Case
Manager Services

On the evidence before me, I find that these services
are adequately covered by the provision I have made for an occupational therapist.

8.     Cost
of Care Re-Assessment

Ms. Degenhardt recommended provision of a
one-time cost of $3,000-$4,000 in the future to update Ms. Van’s life care
plan.  I am aware of no medical justification for this proposal and I consider
that any necessary updating will be part of the occupational therapist’s role,
for which provision has already been made.

9.     Registered
Dietician/Nutritionist

While I am satisfied that Ms. Van will indeed
require advice in this regard, particularly due to the management of her
diabetes, the evidence does not indicate that what she will require is greater
than what is available at no cost through, for instance, endocrinology services
and other medical services provided at Vancouver General Hospital, funded by
the Medical Services Plan.

10.  Dental/Oral
Treatment

The services are recommended by Dr. Wittenberg have
now been provided.  I accept his recommendation for periodic reviews at an
annual cost of $750, and a one-time cost of future crown replacement of
$6,000.  I think it reasonable to expect this to be incurred at age 70.

11. Botox Treatment

A trial of Botox treatment, to address headaches, has
been recommended by both Dr. Wittenberg and Dr. Anton.  I allow
$1,603.56 for the cost of the trial, and ongoing treatment for two years at an
annual cost of $1,600, taking into account the possibility that the trial may
be unsuccessful.

12. Sleep
Assessment and Treatment

I accept that this is medically justified.  The
plaintiff concedes, and I accept, that appropriate assessment is available at
no cost at the Vancouver Coastal Health Sleep Disorders Program.  I allow an
ongoing annual cost of $50 for medication.

13. Interpreter
Services

Ms. Allende considers that this will be
unnecessary as Ms. Van speaks Cantonese and should be able to access
treatments in her native language in the Vancouver area.  I disagree.  There is
no evidence that the many services required by Ms. Van are all available
in Cantonese.  I accept this at an annual cost of $150.

14. Rehabilitation and
Home Support Services

Ms. Degenhardt and Ms. Allende agree that
the services of a rehabilitation assistant/supported independent living worker
will be necessary, but disagree as to the number of necessary hours.  Ms. Allende
would limit it to the current level of four hours per week, or two to three
hours per day, two to three days per week.  I am satisfied that that is nowhere
near sufficient.  To maintain the status quo would amount, in essence, to offloading
onto Ms. Van’s family the burden of the defendants’ compensatory
obligations.  That would be unfair to the family and contrary to Ms. Van’s
best interest.

In addition, it is Ms. Allende’s opinion that
some of the services to be provided under this heading could be provided by a
homemaker at a lower rate.  On the evidence, there is a confusing array of
hourly rates depending upon qualifications, whether night-time or daytime, and
skill level.

Taking into account the family’s ongoing support, Ms. Van’s
scheduled activities and the recommendations of Dr. Anton, I find that the
services of a supported independent living worker for six hours per day, seven
days per week, are amply justified.  I accept as appropriate the upper end of Ms. Degenhardt’s
range of $26-$29/hour, noting that Ms. Allende quoted a higher hourly rate. 
Taking into account time and a half for 10 statutory holidays per year, the
annual cost is $64,380.

But the plaintiff also seeks overnight care for eight
hours per night at a rate of $25.08 per hour, for an annual cost of $74,136.48
including statutory holidays.  The combined annual cost of these two services
is $138,516.48, without including the additional services of a rehabilitation
assistant that Ms. Degenhardt recommended, but I do not find to be
justified.

On the evidence, the cost of a live-in attendant would
be considerably less: $96,070 per year as quoted by Ms. Degenhardt.  I
also accept that Ms. Van is likely to require a live-in attendant in the
future in any event, given her prognosis.

Considering all of these factors, and the
recommendations, it is clear that Ms. Van needs assistance not only during
the day, but also at night when her husband needs to be sleeping himself, given
his work schedule.  Some of this requirement may be relieved through sleep
therapy and medication, and I would assess the annual cost at approximately half
that suggested by Ms. Degenhardt.

Taking all of this into account, and bearing in mind
that this is an exercise in assessment, not calculation, I award an annual sum
of $100,000 for rehabilitation and support services inclusive of GST.  I
consider that this renders any additional amount for respite care unnecessary.

15. Health and
Strength Maintenance

An annual cost of $500 is clearly justified on the
evidence for community centre memberships, drop-in programs and other like
fees.

16. Financial
Manager

It is obvious that Ms. Van will need assistance
in managing finances, but I will leave this for further submissions following
the delivery of these Reasons, because of factors which can only be taken into
account at that time.

17. Housekeeping
Services

Ms. Van’s inability to keep house is not
contested.  Given, however, that she is being compensated for her loss of
housekeeping capacity, a care award under this heading would in my view be
redundant.

18. Mobility Aids,
Household Equipment and Communication Devices

I am not satisfied that an emergency response system
is necessary in view of the provision of home support services I have made
above.  Ms. Van is clearly not suitable for a scooter, but there are
various items that will be required, including single point cane, cane tip,
gait brace, grab bars, a transfer bench, a long handled shower head, a stove
minder and a cart.  These are all to be replaced at varying intervals.  I do
not accept the computer equipment recommended by Ms. Degenhardt.  I assess
the present value of the justifiable items, taken from Table 3 of Exhibit 22,
to be $4,313.

19. Hearing Aid

Ms. Van has been diagnosed with “left conductive
hearing loss”.  Although Ms. Van has been resistant to wearing a hearing
aid, Ms. Degenhardt would make provision for the cost of one in the future
when the degree of hearing loss becomes more problematic.  Ms. Allende
agreed with this approach.  I allow a cost of $2,000 every five years beginning
in 2017.  Again looking at Table 3 of Exhibit 22, the present value
comes to $8,302.

20. Transportation

The plaintiff accepts that if an award is made for
appropriate home support services, and additional award for transportation
costs will not be justified.  Accordingly I do not include one.

21. Living
Arrangements

The plaintiff claims an amount for the increase in rent
that will be necessary to provide for an apartment large enough to accommodate
a care worker’s presence and to ensure that Ms. Van has her own room.

On the evidence, Mr. and Ms. Van were
planning to purchase a new residence after selling their condominium.  But in
the months before the accident, they made no move in this regard.  After the
accident, they moved several times, not always to a smaller apartment.  Their
ability to buy a property was clearly impeded by the significant loss of income
that followed Ms. Van’s injuries.

Ms. Degenhardt notes that the couple’s monthly
rent at the time of the accident was $1,000 ($1,300/month at the time she
prepared the report), and estimates that the monthly rent of a sufficiently
large apartment with appropriate ground-floor accessibility and finishes would
cost $2,600 per month.  To this she would add moving charges of $2,000,
including packing.

While I accept that Mr. and Ms. Van have
lived in less than ideal accommodation because of the financial pressures caused
by their loss of income following the accident, I note that they will be
compensated for that loss.  The question is whether, as a result of the
accident, they will need to pay more than they would have paid but for the
accident.  Given that their family is shrinking as their sons age, rather than
expanding, it seems to me likely that they would have been content with
accommodation that is not as large as they are likely now to require, but not
all the cost differential can be attributed to that.  I allow $800 per month,
or $9,600 per year.  I also allow moving costs of $1,400 being the cost of
additional help over and above what they would likely have expended in any
event.

(e)           
Assessment

[103]     The
present value figures included above for expenses incurred periodically (see items
18 and 19) total $12,615.

[104]     The immediate
one-time costs (see items 3, 5, 11 and 21) total $5,923.56.

[105]     The
present value of the future cost of dental work of $6,000 at age 70 (see item 10)
comes to $3,546.

[106]     The
present value of the cost of Botox treatments for two years (see item 11) beginning
next year at $1,600 per year, in accordance with Table 3-A of Exhibit 22,
comes to $3,041.60.

[107]     The remaining
items comprise annual amounts for Ms. Van’s life expectancy of 26 years. 
These add up to $117,921 per year.  The present value of these costs,
calculated in accordance with Table 3-A of Exhibit 22, comes to $2,326,227.57.

[108]     Adding
these figures together, the total present value of the costs of future care
comes to $2,351,353.73.

4.              
Loss of housekeeping capacity

[109]     The defendants
acknowledge that, on the evidence, the plaintiff did the majority of cooking,
grocery shopping and lighter cleaning tasks around the home before the
accident, with her husband assisting in grocery shopping, heavier cleaning
tasks and washing dishes.  The defendants further accept that since the
accident, Ms. Van remained significantly restricted in this area, and that
she is entitled to remuneration: McTavish v McGillivray, 2000 BCCA 164,
and Deo v Deo, 2005 BCSC 1788.

[110]     The
plaintiff concedes that any claim for a past loss of housekeeping capacity is
subsumed into the claim for an in trust award for Mr. Van.  I therefore
consider only the future.

[111]     The
plaintiff relies on the report of Mr. Robert Carson concerning “hours of
household work”, which provides statistical averages.  This suggests that for
an employed woman with a partner and no dependent children, 1.7 hours per day
would typically be spent on cleaning tasks, not including cooking or shopping. 
This adds up to 11.9 hours per week or 620 hours per year.  According to Mr. Carson,
the average rate is $15.80 per hour, which I accept.

[112]     Given that
Ms. Van worked two jobs, had assistance from Mr. Van, and remains
capable of at least a few light housekeeping duties, I consider the statistical
average to be too high.  I allow 365 hours per year at $15.80 per hour for an
annual loss of $5,767.

[113]     Although Mr. Carson
suggests that, statistically, the number of hours per week increases after
retirement, I consider that the same annual rate should continue to apply after
age 65, given that her husband’s contribution would be expected to
increase, and that her natural capacity might well have been reduced in any
event due to back difficulties.  Moreover, I find it likely that assistance
would have been required in any event after age 70.  According to Exhibit 20,
the multiplier to age 70 is 14.337.

[114]     I
therefore award $82,681 for Ms. Van’s loss of future housekeeping
capacity.

5.              
In trust claim for Mr. Van

[115]     The
plaintiff seeks a substantial award in trust for Mr. Van for the services
he has provided in caring for Ms. Van since the accident.  The plaintiff
would value this claim on the basis of future care evidence concerning the
hourly rate for an unskilled companion of $25/hour, reduced to the low end of
the range for 24 hours supervisory care of $260/day for each day between the
accident and trial.  This totals $608,400.

[116]     The
defendants agree that Mr. Van provided extra services to his wife since
the accident for which he is entitled to be compensated, but submit that the
claim as presented by the plaintiff far exceeds what the evidence will support.

[117]    
The parties both cite the principles set out by Mr. Justice Harvey
in Brennan v Singh, [1999] BCJ No 520 (QL), 1999 CarswellBC 484
(SC):

[94]      The subject of "in trust" claims has been
given considerable attention in recent years, including, particularly, where
the services in question have been rendered within the perspective of a
husband/wife relationship or by a child or relative of the family.  Here, the
relationship is marital and brings into consideration the usual factors of such
a relationship.

[95]      In my view, it is
useful to review briefly the factors which are considered in the assessment of
such claims.  They are:

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

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

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

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

[118]     The
defendants point to awards under this heading in the amount of $75,000 in Claiter
v Rose et al., 2004 BCSC 50; $100,000 in the Yick case; and
$150,000 in the O’Connell case.  They submit that the awards in Yick
and O’Connell related to a significantly higher degree of care than that
provided by Mr. Van to the plaintiff.  They argue that much of what Mr. Van
did pre-trial, and the time he spent with his wife, was only moderately
different from the situation that existed before the accident.

[119]     I
disagree.  While the type of activities Mr. Van Undertakes with his wife may
appear superficially similar to their pre-accident lifestyle in terms of
shopping, household chores and meal preparation, the reality is that the
responsibility borne by Mr. Van has increased dramatically.  In essence,
he has had to bear the responsibility of ensuring that Ms. Van is properly
cared for and safe throughout the day outside his working hours, and throughout
the night.  He has had assistance from his sons and Ms. Van’s family, but
the responsibility has been his.  He gave up his second job because of this,
and indeed took two months off work altogether while Ms. Van was in
hospital, where he attended at her bedside 11 hours a day.  Most of this
time must, in my view, be considered over and above what should be expected
from the marriage relationship, given Ms. Van’s condition and Mr. Van’s
responsibility, upon which the success of the rehabilitation program designed
by ICBC depended.

[120]     In O’Connell,
the Court of Appeal dealt with the defendant’s appeal from the trial judge’s
award under this heading as follows:

[48]      As I have noted, the appellants’ fundamental
argument is that the in-trust award overcompensates Mr. O’Connell because
the evidence does not support a finding that he spends six hours per day caring
for Ms. O’Connell.

[49]      This submission rests in significant part on the
argument that the trial judge should have drawn an adverse inference from the
absence of evidence as to the precise amount of time Mr. O’Connell spends
caring for his wife that is different from the time they spent together prior
to the accident.

[50]      The judge found as a fact that most of the
supervision, guidance and assistance Mr. O’Connell provides to his wife
was "over and above what would be expected from the marriage
relationship" (at para. 95).  Further, the judge found, at
para. 121, that "Mr. O’Connell was understated in his evidence
and it was quite obvious to me that he was very reluctant to complain or admit
that he was having trouble providing continuous care to his wife."

[51]      It seems obvious that in the circumstances of Ms. O’Connell
and her devoted husband, it is unrealistic to expect a precise calculation of
the number of hours Mr. O’Connell spends each day in guiding, prompting,
and providing cues to Ms. O’Connell as well as in providing actual
personal care.  It is clear, however, that without such assistance, Ms. O’Connell
could not independently live in her home.

[52]      The judge clearly had
regard to all of the evidence and the relevant legal principles governing
in-trust claims.  Her reasoned assessment was that Mr. O’Connell provided
the equivalent "of about" six hours of care on a daily basis.  Having
regard to Mr. O’Connell’s evidence, which was unqualifiedly accepted by
the judge, an award on that basis cannot be said to be inordinately high.

[121]     Here, too,
it is clear to me that without Mr. Van’s assistance, Ms. Van would
not have been able to live independently in her home, and a good deal more care
would have had to have been provided privately.  As he testified, and I accept,
he took on all the household chores (they were previously shared), and, simply,
“took care of her”.  This involved helping to the bathroom, intervening in her
problems with neighbours, cooking her meals, taking her shopping (for
therapeutic purposes), supervising everything she does at home, being available
to assist through the night, and doing all of this in context of his wife’s
abusive behaviour.  This is impossible to quantify in terms of a specific
number of care hours per day.  The responsibility is unremitting.  For
instance, taking Ms. Van out to dinner may appear on the surface the
equivalent of a pre-accident dinner date.  But it is not.  It requires a good
deal of planning, care and attention to ensure Ms. Van’s safety and
well-being.  Every activity is transformed by the severity of Ms. Van’s
traumatic brain injury.

[122]     I would
assess an appropriate award under this heading at $275,000, or approximately $40,000
per year since the accident.  While this is less than the cost of a care worker
for six hours a day, I consider in all of the circumstances that it
appropriately compensates Mr. Van for his devoted service, while remaining
reasonable.  It is true, as the plaintiff’s proposed figure indicates, that the
substitution of a 24-hour/day caregiver would have cost more than I have
awarded, but that fails to take into account: that Mr. Van did not render
24-hour/day care; the time spent by Mr. Van doing household chores and
housekeeping before the accident; and the time that Mr. Van could
reasonably have been expected to devote to his wife by reason of the marital
relationship.

6.              
Special damages

[123]     The
defendants agree that the plaintiff has incurred compensable expenses in the
amount of $59,622.50.

[124]     The
plaintiff claims a further amount of $15,740 incurred for physiotherapy
treatments at AAA Physiotherapy between March 21, 2012 and January 10,
2014.

[125]     The
defendants say that there is no evidence of any doctor’s recommendation that
she required that much physiotherapy, although they agree that the expense was
incurred.

[126]     I note
that when Ms. Van was discharged from her previous physiotherapy program
in 2009, the recommendation was that she continue with a gym program, to be
supervised by occupational therapist.  Ms. Caverly fulfilled that role,
and subsequently recommended the AAA Physiotherapy treatment.  I consider this
to be sufficient justification, and award the physiotherapy costs in addition
to the uncontested amounts, for a total award of special damages in the amount of
$75,362.50.

7.              
Contributory negligence

[127]    
The defendants submit that Ms. Van was contributorily negligent for
failing to wear her seatbelt, and assert that fault should be apportioned 80%
to the defendants and 20% to the plaintiff, with her damages being reduced
accordingly.  This brings into play section 1 of the Negligence Act,
RSBC 1996, c 333:

1    (1)  If by the fault of 2 or more persons damage or loss
is caused to one or more of them, the liability to make good the damage or loss
is in proportion to the degree in which each person was at fault.

 (3)  Nothing in this
section operates to make a person liable for damage or loss to which the
person’s fault has not contributed.

[128]     The
plaintiff argues that the defendants failed to meet the onus upon them to
establish this defence.  For the defence to succeed, I must be satisfied on a
balance of probabilities not just that the plaintiff failed to wear her
seatbelt, but also that her seatbelt was in good working order and that its use
would have avoided or minimized the injuries she suffered: see, for instance, Harrison
v Brown, [1987] 1 WWR 212 (BCSC), and Ford v Henderson, 2005
BCSC 609 at para 69.  There was, the plaintiff asserted, no evidence that
the seatbelt was working, that Ms. Van was not wearing it, or that using
it would have avoided or reduced her injuries.

[129]     This
raises the conundrum of Ms. Van’s seatbelt.  After the accident, it was
found in a fastened state, and I find that it was that way when the accident
occurred.  But was she sitting on it, or wearing it?

[130]     The
evidence came out in an unusual way.  The onus of establishing contributory
negligence is, of course, on the defendants.  It was, however, the accident
reconstruction report of the plaintiff’s expert, Mr. Sdoutz, that first addressed
this issue.

[131]    
Mr. Sdoutz’s associate, Trevor Dinn, P. Eng., inspected the
Infiniti driven by Mr. Van.  The report does not say anything about the
condition of the front passenger seatbelt, but Mr. Dinn’s notes do not
record any problem.  In his report, Mr. Sdoutz  expressed the opinion that
Ms. Van had not been wearing a seatbelt at the time of collision, based
principally on her ejection from the vehicle, and went on to describe the
dynamics:

The initial impact by the Mazda was directed predominantly
into the Infiniti’s left side.  It, in combination with the post-impact
counter-clockwise rotation, would have caused the Infiniti’s right front
occupant to move toward the vehicle’s driver’s side.  However, as the
Infiniti’s impact severity was relatively minor due to the collision by the
master, it is not expected to have caused significant displacement of the
occupant within the vehicle, regardless of the use of the lap/shoulder belt.

The largest impact into the Infiniti occurred when it struck
the roadway after rolling onto its passenger side mid air.  This is notable
from the significantly greater damage to the vehicle’s passenger side as
compare[d] two the damage caused by the impact with the Mazda.  During this
passenger side to roadway impact, the Infiniti’s right front occupant would
have been projected into the passenger side front door and window.  Due to the
proximity of the passenger to the door and window, this contact would have
occurred irrespective of seatbelt use.  It must also be considered that the
occupant’s upper torso and head would also have impacted the ground as the
window fractured during this impact, this impact would not have been prevented
by seatbelt use.

Following the impact with the roadway the Infiniti remained
on its passenger side, sliding along the roadway for about 12 m, until it
reached the curb at the North-west corner of the intersection.  During this
sliding contact the right front occupant’s head and upper torso could have slid
along the pavement, even if restrained by a seatbelt.

The lack of seatbelt use allowed
the occupant’s lower body to reach the elevation of the window, so that when
the Infiniti was righted back onto its wheels due to the curb contact at the
north-west corner of the intersection, the occupant essentially remained on the
ground.  The occupant, once separate from the vehicle, then slid to her rest
position on the sidewalk between the pillars.  There was no physical evidence
at the scene to indicate that the occupant contacted the curb or one of the
pillars while sliding to rest.

[132]     In his
evidence at trial, Mr. Sdoutz sought to temper his opinion by indicating
that, in accordance with his instructions, he had not taken into account the
possibility that the seat back had been reclined, and therefore had not
considered whether in such circumstances the occupant could have been ejected
even if wearing a seatbelt.

[133]     I found Mr. Sdoutz
to be a highly credible witness, and I accept that if the back of Ms. Van’s
seat had been significantly reclined, it could affect the question of whether
the use of a functioning seatbelt would have prevented her ejection.  But given
my finding, based upon the photographic evidence, that the back of Ms. Van’s
seat was reclined very little, if it all, I am not persuaded that there is any
reason not to accept Mr.  Sdoutz’s original opinion, based upon the
dynamics, that she was not restrained at the time of the accident.  I conclude
that, on a balance of probabilities, Ms. Van was not wearing her seatbelt,
but had fastened it, and was sitting on it.

[134]     The next
question is whether the seatbelt was in good working order.  There is no direct
evidence on this point.  The defendants submit that since the plaintiff’s
expert inspected the seatbelt and did not report any problem with it, I should
infer that it was in proper working condition; if not, I would have heard about
it.  The plaintiff argues that she had no obligation to adduce evidence about
the condition of the seatbelt, and that the lack of positive evidence on this
point is fatal to the defendant’s position given the placement of the onus of
proof.

[135]     That the
onus of proof is on the defendants does not mean that the defendants must lead
positive evidence in order to succeed.  Only if I find I am unable on the whole
of the evidence to decide on a balance of probabilities whether the seatbelt
was in working condition does the onus operate against the defendants.

[136]     In this
case, I conclude that there is sufficient circumstantial evidence in the expert
opinion evidence of Mr. Sdoutz to allow me to find that the seatbelt was
in working condition at the time of the accident.  Mr. Sdoutz readily
agreed that, without considering whether the seat back was reclined, it was his
opinion that Ms. Van was not wearing her seatbelt, or she would not have
left the vehicle.  Given that his associate had inspected the seatbelt, the
only reasonable inference, I find, is that the seatbelt must have been in
working condition, or he would not have been able to form that opinion.

[137]     The final
question is whether Ms. Van’s injuries would have been avoided or lessened
had she worn the seatbelt.  On this issue, I have the benefit of the evidence
of Mr. Sdoutz quoted above, and the evidence of Dr. Anton that Ms. Van’s
facial injuries arose from direct trauma to the face.  Taking into account
these opinions together with the whole of the medical evidence, I am satisfied
that the injuries to Ms. Van’s face, head and ribs were caused by the
massive and sustained force of the impact between her side of the vehicle and
the road, which the seatbelt would not have prevented.  It is those injuries
that have led to the losses for which Ms. Van seeks compensation.

[138]     The
defendants argue that taking a “robust and pragmatic approach” to causation
(see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I
should find that Ms. Van’s failure to wear a seatbelt did at least worsen
her injuries.  If I do not do so, submit the defendants, it effectively
prevents the defendant from ever proving contributory negligence in cases of
this nature.  I do not agree.  The expertise available to the defendants to
assist in investigating causation was no different from that available to the
plaintiff in this or any other case of a motor vehicle collision.

[139]     The
“robust and pragmatic approach” commended by the Supreme Court of Canada in Clements
is not intended to facilitate an end run around the evidence.  The Supreme
Court made it clear in that case that the test for causation remains a “but
for” test, and I am quite unable to find on the evidence before me that but for
her failure to wear a seatbelt, Ms. Van would not have suffered to the
same extent or at all the injuries for which she seeks compensation.  On the
contrary, I find that her head, facial and rib injuries, and all of their
consequences that are relevant to this enquiry, would have occurred in any
event due to the unusual mechanics of this accident.  Like the situation
considered by the Court of Appeal in Schenker v Scott, 2014 BCCA 203,
“[g]iven the mechanics of this accident and the nature of the injuries
suffered, this is not a case where a seatbelt defence could be made out by
relying on common sense inferences” (para 43).

[140]    
I should add in this regard that I found the expert opinion evidence of
Jonathan P. Gough, P. Eng., called by the defendants, to be unpersuasive. 
Mr. Gough reported, based on a search of the literature, that ejection
from a vehicle involved in a rollover is associated with much higher injury
exposure than is the case with persons who are not ejected.  That might be the
case in general terms, but it was not helpful in understanding what happened
here given the accident’s unique mechanics.  As Mr. Justice Finch (as he
then was) stated in Harrison:

[10]      The statistical effectiveness
of seat belts has not, however, in my view eliminated, or altered, the onus of
proof in individual cases.  The onus remains on the defendant to show upon a
balance of probability that the use of a functioning seatbelt would have
avoided, or minimized, the injuries which were in fact suffered by the
plaintiff.

[141]     I prefer
the opinion of Mr. Sdoutz, because it addressed the specifics of this
case, was logical and fit with the medical evidence.  Moreover, under
cross-examination on his report, he answered questions in a straightforward
manner that was not in the least defensive.

[142]     I conclude
that while the defendants have satisfied me that Ms. Van failed to wear a
functioning seatbelt, they have failed to establish on a balance of
probabilities that but for that failure, her injuries would have been avoided
or lessened.  This brings into play section 1(3) of the Negligence Act,
which provides that a person is not to be made liable for damage or loss to
which her fault has not contributed.  That is the situation here.  Accordingly,
the defence of contributory negligence fails.

VI.           
CONCLUSION

[143]     The
defendants are 100% liable for the injuries Ms. Van sustained in the motor
vehicle accident of July 18, 2007.

[144]    
I assess Ms. Van’s damages as follows:

[145]     Counsel
are to calculate the appropriate net figure for the past loss of income based
on my findings and Mr. Carson’s report (Exhibit 18).

[146]     There remain
a number of matters for consideration: the plaintiff’s claims for a tax gross-up
on the future care award and for financial management assistance; the
defendant’s position that an order should be made for periodic payments
pursuant to section 99 of the Insurance (Vehicle) Act, RSBC 1996,
c 231; the impact of s. 83 of the Insurance (Vehicle) Act; and
costs.  The parties are at liberty to apply concerning these issues and with
respect to any calculation questions.

“GRAUER, J.”