IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140806

Docket: M105026

Registry:
Vancouver

Between:

Carolee Susan
Knight,

an adult, by her
Litigation Guardian, Gregory Shorland

Plaintiff

And

Richard Eldon Knight

Defendant

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

Table of Contents

Introduction. 3

Summary of Evidence on Liability. 3

Garnet Thomas’ Evidence. 3

Richard Knight’s Evidence. 5

Expert Evidence. 8

Findings of Fact 10

Legal Principles. 13

Causation. 17

Damages. 18

Ms. Knight’s Injuries. 19

Non Pecuniary Damages. 23

Loss of Future Income Earning
Capacity. 26

Cost of Future Care. 29

The “In Trust” Claims. 31

Loss of Homemaking Capacity. 43

Tax Gross Up and Management Fees. 44

Summary of Damages Awarded. 45

Introduction

[1]            
On Wednesday, October 22, 2008, the Defendant, Richard Knight set out to
drive his wife, the plaintiff, Carolee Knight, and their two children from
Kitimat to Terrace, British Columbia in the family’s car. Ms. Knight, who
was approximately six months pregnant, was in the front passenger seat, and the
two children were in the back seat.

[2]            
Terrace and Kitimat are connected by Highway 37, which runs in a north
south direction between Terrace in the north and Kitimat in the south. At
approximately 6:30 p.m. the Knight vehicle drove into a moose that was crossing
highway 37 about 30 kilometres north of Kitimat.

[3]            
Ms. Knight suffered severe injuries as a result of the collision. The
most serious was a severe traumatic brain injury that has permanently affected
her cognitive abilities, memory, ability to read and left her permanently
unemployable.

[4]            
Ms. Knight brings this action to recover damages for the injuries she
suffered in the accident. Mr. Knight denies that he was negligent. His position
is that the collision with the moose was an unavoidable accident caused by the
moose appearing on the road in front of his vehicle in circumstances in which
he had no opportunity to avoid hitting it.

Summary of Evidence
on Liability

[5]            
There are two different versions of the events leading up to the
collision, one from Mr. Knight and one from Garnet Thomas.

Garnet Thomas’
Evidence

[6]            
Mr. Thomas was called as a witness by the plaintiff. Mr. Thomas’s and
Mr. Knight’s evidence conflict in certain respects.

[7]            
Mr. Thomas stated that on October 22 he was driving south on Hwy 37. His
recollection was that it was about 6:30 p.m. when he noticed a moose standing
either on or just to the side of a logging road that joined Hwy 37 from his
right. The ground around the logging road was about a foot or so lower than the
road. He estimated that the moose was about 200 metres away from him when he
first noticed it.

[8]            
Mr. Thomas said that he could see the moose without the assistance of
his headlights. He described the lighting conditions as being not quite dark,
or in his words a “dusky twilight”. His evidence is that it was not raining at
that time. The moose was “kind of strolling” towards the highway and was not
moving quickly. The moose appeared to look at Mr. Thomas’ truck for a short
time then proceeded to cross the highway at a 90 degree angle. The moose
stopped in the southbound lane briefly when Mr. Thomas was approximately 100
metres or maybe a little less away from it, then picked up its pace and cleared
the southbound lane. He estimated that the moose remained in the southbound
lane for about ten seconds.

[9]            
Mr. Thomas noticed the Knight vehicle approaching just after he first
saw the moose and estimated that it appeared to be about the same distance or
maybe a bit farther away from the moose than he was. When he saw the moose he
turned off the cruise control on his truck and began to brake and slow down as
he observed it moving toward the highway. He estimated that by the time the
moose cleared the southbound lane he had slowed to about 50 kilometres per
hour.

[10]        
The Knight vehicle appeared to be driving at at least the posted speed
limit of 100 kilometres per hour and passed his truck without slowing. A short
time after the two vehicles passed each other Mr. Thomas heard the sound of a
collision and saw the moose flying through the air in his rear view mirror. He
did a U-turn, parked his truck and ran up to the Knight vehicle, which had
pulled over to the side of the highway. By the time he got to the vehicle
people from other cars, including a nurse, were assisting its occupants. Mr.
Thomas then ran up the highway searching for a cellphone signal and as soon as
he found one placed an emergency call that the RCMP recorded as being received
at 6:47 p.m. He estimated that he was able to make the call about 10 to 15
minutes after the accident.

[11]        
In cross examination Mr. Thomas agreed that he had not previously seen a
moose on highway 37. He described the weather conditions as overcast but not
raining and the light conditions as “a funny kind of light”. He explained this
by saying that the sun had set behind the mountains to the east of the highway
but there was still reflected light from the clouds. He repeated that at that
time his headlights did not really make any difference to his ability to see.
He said that his “headlights did not really light up” the road and that he was
still able to discern colours without his headlights but was on the verge of
not being able to do so.

[12]        
He repeated that it took about 10 seconds for the moose to cross the
southbound lane and estimated that it took about 15 to 20 seconds for the moose
to travel into the northbound lane from where it was when he first saw it.

Richard Knight’s
Evidence

[13]        
Mr. Knight testified that he thought the family left their home at about
6:30 in the evening to attend a Bible Study group meeting. However, in cross
examination he admitted that he had not looked at a clock when he left home but
assumed that he left at about that time because it was an hour before the
meeting was scheduled to start in Terrace, about a 50 minute drive from
Kitimat.

[14]        
Mr. Knight acknowledged driving past a moose warning sign between
Kitimat and the place of the accident.

[15]        
Mr. Knight has a different recollection than Mr. Thomas of the weather and
light conditions on the evening of the accident. He testified that there was a
light rain falling. He stated that it was “kind of dusk, just getting dark”. He
confirmed that he was driving at the posted speed limit of 100 kilometres per
hour. He said that he was driving northbound when he saw the headlights of an
approaching vehicle black out and go off and then come back on again. Mr.
Knight said at that point he was wondering what was happening and why the
lights had gone out and come back on. He said that just after that his wife
yelled out “deer” and he looked over to see what was wrong with her and then
very shortly after that there was an impact. He testified that he did not see
the moose until he hit it.

[16]        
In his examination in chief, Mr. Knight described the obstruction of the
headlights as follows:

Q         So as you’re getting closer to the part of the
road where the accident took place, and after you’d overtaken the car earlier
—

A          Mm-hmm?

Q         — what was your speed?

A          About 100 kilometres an hour.

Q         I’m going to ask you about the accident. Can
you tell the court, as you’re approaching the scene where it took place, what
was taking place, what did you observe?

A          Well — well, as I was travelling along, and
there’s headlights coming towards me, and those headlights blacked out, they —
they went off, and then they came back on again. And then at that point, then I
— I was wondering what was happening, why the lights had gone off and come
back on, and then right after that, my wife yelled out, “deer,” and — and I
looked over to see what was wrong with her, you know, what — what was the
problem for her, and then very shortly after that, there was an impact.

Q         Did you ever see what you impacted?

A          No.

Q         Could you tell — could you see by shape, or
any other indication what had caused the oncoming lights of the car coming at
you to go off an come back on?

A          No.

Q         When you said — you say the lights went off,
do you mean one light, or two lights, or can you elaborate on that?

A          They both just disappeared. It was almost
like somebody turned their lights off.

Q         Okay.

A          Yeah.

Q         And then they came back on again, how much
later?

A          I — I don’t know. You know what, a — a
short period, but I — I don’t know in terms of an actual time.

Q         Okay.

A          Yeah

[17]        
At his examination for discovery, Mr. Knight gave the following
evidence:

194      Q         Okay, can
you just tell me what you remember sort of the last minute or two before the incident.

A          I remember – well, we were meeting traffic,
so there was headlights coming towards me. And I remember the headlights coming
towards me blacked out. They were gone. And then they came back again. And so
then I knew something had obstructed those lights.

And at the same time that that
thought was going through my brain my wife said Deer [phonetic], and I don’t
know if she meant D-E-A-R or D-E-E-R, but she was hollering a warning of some
kind. And then there was impact. That’s it.

195      Q           How
many seconds between when you saw the obstruction and the impact?

A          I
don’t know. Not very many.

196      Q         Okay.

A          It
was, you know –

198      Q         Okay.

A          Yea. So five maybe. I don’t – yeah.

199      Q           But
it did stand out in your mind that there was something coming across the
headlights in the opposite direction?

200      A          Yeah. Something had
— yeah.

[18]        
Mr. Knight gave the following further explanation of his examination for
discovery evidence to his counsel in his evidence on March 5, 2014:

Q         Now, my friend introduced into evidence a
statement you made at your examination for discovery, I think you heard that
earlier on?

A          Yes. Yeah.

Q         I just want to read to you

MR. OLIVER:  My Lord, I’m looking at Exhibit 4.

THE COURT:  Yes.

MR. OLIVER:  And page 9.

Q         All right. Sir,
I’m going to direct your attention to the questions that my friend read in,
starting at question 195. You were asked:

How many
seconds between when you saw the obstruction and the impact?

And your answer was:

I don’t know,
not very many.

And then your — the next question
was:

Okay.

And your answer was:

It was, you
know

My question now to you is this.
Were you going to say something else at that point?

I was
probably thinking about how long it would be, yeah.

Q         All right. And then at question 198, the
question is:

Okay.

And then you say:

Yeah, so five
maybe —

And then:

I don’t —

And then:

Yeah.

Can you — was there something
else you wanted to say there?

A          Well, I believe question 197 was a — a range
of numbers, if Mr. Gibbens would have asked.

Q         All right.

A          And the closest that I thought of the ones
that he gave me would have been five so —

Q         All right. Why did you say, “I don’t —

A          Because it’s really hard for me to put a time
on that thing because when things like that happen, your sense of time kind of,
you know, changes just to a certain extent because things happen so fast, or
slow, or — you know, that — that whole change of how you perceive time when
something’s happening like that.

Q         Okay. So how accurate is the five that you
referred to at question 198?

A          It’s a good
estimation, maybe. Yeah, I mean, it’s —

Expert Evidence

[19]        
In addition to the evidence of Mr. Thomas and Mr. Knight both parties
presented expert evidence from accident reconstruction engineers. The plaintiff
relied on a report from Donald Rempel of Rempel Engineering and the defendant
relied on a report from Craig Good of Collision Analysis. Both engineers
prepared rebuttal reports critiquing the other’s report.

[20]        
Mr. Rempel’s report is based on the assumption that Mr. Knight observed
a blocking effect of the headlights of Mr. Thomas’ oncoming vehicle
approximately five seconds before the Knight vehicle struck the moose. His
opinion was that if Mr. Knight had recognized the blocking effect as a
hazard and commenced braking to slow his vehicle he would have been able to
bring it to a stop well short of the point of impact with the moose. He arrived
at the conclusion by calculating how far the Knight vehicle would have
travelled at 100 kph in the five seconds before impact and comparing that
distance to the distance it would take to stop a vehicle travelling at that
speed.

[21]        
Mr. Rempel also was of the opinion that if Mr. Knight had responded to
the blocking effect on the headlights of the oncoming vehicle with a moderate
brake application (approximately 2/3 of maximum) the collision with the moose
would have been avoided.

[22]        
In reaching these conclusions Mr. Rempel used a brake reaction time of
1.5 seconds. I accept this as a reasonable brake reaction time. In my view the
brake reaction time of 1.91 seconds used by Mr. Good is too high given Mr.
Knight’s age and physical condition.

[23]        
Mr. Good’s report concludes that even if Mr. Knight had seen the
moose as it entered the southbound lane of Hwy 37 he would not have had time to
slow his vehicle sufficiently to avoid a collision. At page 6 of his report Mr.
Good sets out the amount of time it would have taken the moose to travel from
the edge of the road to the centre of the northbound lane at various assumed
speeds. For example, at para 8.15 of his report he states as follows:

If one assumes the moose was
walking across the road at an average walking speed of 10 km/h, the moose would
have travelled from the road edge to impact in 1.94-2.25 seconds. It is
possible that Dr. Knight would have been able to initiate an evasive maneuver
such as braking in this time; however, using very quick perception-reaction
times, there was not sufficient time to brake and avoid a collision in rainy
conditions from 100 km/h. Steering left was not a viable evasive action due to
on-coming traffic in the southbound lane. It is unknown whether the moose was
walking, trotting or running.

[24]        
Mr. Good also opined that it was unlikely Mr. Knight would have been
able to see the moose even if he had been looking at the edge of the road as he
approached the point of impact because of what he assumed were the dark and
rainy conditions on the evening of the accident.

Findings of Fact

[25]        
Based on the time that the accident was reported, Mr. Thomas’s evidence
and the distance the Knight vehicle had travelled to the point of the collision
I conclude that the Knights left their home somewhat earlier than 6:30 and that
the accident occurred between 6:30 and 6:40 p.m.

[26]        
I prefer Mr. Thomas’ evidence about the weather and light conditions to
that of Mr. Knight’s for a number of reasons. He was aware of the moose and
thus had better opportunity to observe the events leading up to the accident
than Mr. Knight did. He was an independent witness with no interest in the
outcome of this case. In addition, I think it likely that Mr. Knight’s ability
to recall the circumstances leading up to the accident was adversely affected
by his involvement in the crash. I note that he was injured in the accident and
was preoccupied with assisting his wife immediately after it occurred. I have
no doubt he was traumatized by the accident.

[27]        
I have not forgotten that Mr. Thomas did acknowledge that after the
accident he told the police that his headlights might have affected the
visibility of the moose to the other driver.

[28]        
His cross-examination on this point was as follows:

Q         Well, do you recall after the fact talking to
the police and saying to the police — that you think your headlights might
have obstructed the other driver’s view of you — of the moose?

A          Yes, yes, yes. It seemed kind of the effect.
I thought it might be the effect of someone stopped at an intersection and
someone walking in front of the vehicle and the only thing you see is just the
movement in front of the headlights.

Q         I guess my point is that it was dark enough,
at least, that you think that your headlights might have — the glare of your
headlights might have prevented the oncoming driver from seeing the moose?

A          Yes. Not so much
when he cleared my field of vision, but while he was — while the moose was in
front of my car.

[29]        
I do not find this evidence to be inconsistent with his evidence about
the lighting conditions at the time of the accident. In the quoted passage he
does acknowledge that it was possible that the glare of his headlights might
have impaired Mr. Knight’s ability to see the moose while it was immediately in
front of the Thomas truck. However he also states that he thought the moose was
visible when it was not in the glare of his headlights.

[30]        
I accept that the lighting conditions were such that the moose might not
have been recognizable as a moose while it was directly in front of Mr.
Thomas’s truck and therefore in the glare of the headlights. However I also
find that when the moose was not directly in the glare of the headlights it was
visible. I am also satisfied that there was an opportunity for Mr. Knight to
have observed the moose before it moved onto the highway and into the glare of
Mr. Thomas’s headlights. There is no dispute that the headlights on the Thomas
vehicle were on low beam prior to the accident.

[31]        
Despite the conflict in their evidence about the lighting and weather
conditions, there are also consistencies in Mr. Thomas’s and Mr. Knight’s
evidence. Mr. Knight estimates that approximately 5 seconds elapsed between the
time he observed the obstruction of the headlights of Mr. Thomas’ truck
and the impact with the moose. Mr. Thomas’ evidence is that the moose remained
in the southbound lane for about 10 seconds before crossing into the northbound
lane and at that time it was about 100 metres ahead of his truck. Both
witnesses therefore agree that the moose was on the road at least 5 seconds
before impact.

[32]        
From Mr. Knight’s evidence at trial and in his examination for discovery
I am satisfied that there was some interval between his noticing the lights of
the approaching car being blacked out and the impact with the moose. Mr. Knight
saw the lights black out, recognized that something was crossing the highway in
front of the headlight, heard his wife yell deer, looked over to her to see
what was the matter and then struck the moose. I also find it significant that
Mr. Knight’s vehicle struck the moose behind Mr. Thomas’ truck suggesting that
he was some distance away when he noticed the obstruction. Taking all of these
circumstances into account, I conclude on the balance of probabilities that
there was a 5 second interval between Mr. Knight first noticing that the
oncoming headlights were blocked and the time of impact with the moose.

[33]        
This finding negates the assumption in Mr. Good’s Report that the moose
was crossing the highway at a speed that did not give Mr. Knight an adequate
opportunity to react and stop his vehicle before hitting it. Mr. Thomas
testified that Mr. Knight’s car was about the same distance or maybe a bit
farther away from the moose than his truck was when the moose entered the
highway. At a speed of 100 kilometers per hour Mr. Knight’s vehicle would have
travelled about 139 meters in the 5 seconds before the accident. Mr. Thomas
estimated that his truck was about 200 metres from the moose when he first saw
it and about 100 metres ahead of him when it stopped on the road. These
distances are generally consistent with Mr. Knight having observed the
blackout effect about 5 seconds before impact.

[34]        
My findings as to the light and weather conditions also limit the
usefulness of Mr. Good’s opinion on the visibility of the moose. Mr. Good
assumed that it was dark and raining at the time of the accident and that Mr.
Knight would not have been able to observe the shoulder of the southbound lane
of Highway 37 because of the glare from the headlights of the Thomas vehicle.
However Mr. Thomas testified that as he approached the moose he was able to see
it without the benefit of his headlights at a distance of 200 metres. I
appreciate that Mr. Thomas’ vehicle was on the same side of the road from which
the moose was approaching and presumably would have had a better opportunity to
observe it than Mr. Knight did. However Mr. Thomas testified that the
moose was clearly visible to him without the assistance of his headlights.

[35]        
Mr. Knight testified that he could not keep a look out on the other side
of the highway because of the glare from Mr. Thomas’ truck headlights. However
I have some difficulty with this explanation. It seems to be inconsistent with
Mr. Thomas’ evidence that the moose was visible to him while it was on the
logging road from a distance of some 200 metres. He stated that the moose moved
slowly towards the road and that he was able to see it without the aid of his
headlights. Mr. Knight acknowledged that the headlights on Mr. Thomas’ truck
were on low beam and he agreed that at that time it was just getting dark.

[36]        
I conclude that Mr. Knight would have seen the moose prior to it moving
onto the west shoulder of the highway had he been keeping a proper lookout. I
accept Mr. Thomas’ evidence that he was able to see the moose without the
assistance of his headlights at a distance of 200 metres. Photograph number 4
of the photographs of the accident scene indicates that Mr. Knight would have
had a relatively unobstructed view of the logging road from 100 metres away had
the lighting conditions allowed him to do so. I find that there was sufficient
light to permit a person to see the moose from that distance without the
assistance of headlights.

[37]        
Given the lighting conditions I have difficulty accepting that Mr.
Knight was prevented from keeping a lookout on the west side of the highway by
the glare from Mr. Thomas’ headlights.

[38]        
Based on the evidence that I accept, I conclude that Mr. Knight did have
an adequate opportunity to observe the moose in time to take action to avoid
the collision. I also find that on Mr. Knight’s own evidence, there was an
adequate interval of time for him to have avoided the accident had he initiated
braking when he recognized that something was crossing the highway in front of
Mr. Thomas’ oncoming vehicle.

Legal Principles

[39]        
Counsel referred to a large number of cases involving collisions with
wildlife. I will refer only to a few of the decisions. After reviewing the
cases I am in complete agreement with the statement of Ross J. in Fajardo v.
Horianopoulos, 2006 BCSC 147 at para. 24:

[24] Counsel each cited a number
of authorities addressing accidents occurring as a result of collisions with
wildlife. From those cases, I glean that whether a driver is negligent when he
runs into wildlife on the road depends upon all of the circumstances of the
particular case: see Pitts Enterprises Ltd. v. Farkes et al., 2004 BCSC
1493, aff’d 2005 BCCA 511 [Pitt Enterprises].

[40]        
Ms. Knight’s counsel relied heavily on the decision of the Newfoundland
and Labrador Court of Appeal in Baker v. Russell, 2008 NLCA 51, in which
a defendant driving at the posted speed limit was found to be negligent for
failing to take adequate steps to address the risks associated with driving on
a highway where moose were known to be present. At paras. 31-32 the court
stated as follows:

31 Considering all the circumstances as noted
it is clear in our opinion that a reasonably prudent driver would have decreased
his speed appreciably in the area specified by the moose warning sign. In our
view the risk of encountering moose was real, that is, "one which would
occur to the mind of a reasonable man in the position of the defendant … and
which he would not brush aside as far-fetched". Overseas Tankship
(U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] 1 A.C. 617, at p. 643. See para. 19
above. The potential gravity of harm that could ensue from an encounter with
moose was obvious. The steps that can be taken by a motorist are limited. One
obvious defensive step would be to reduce speed so that the driver can have
more time to react to the presence of moose. The trial judge committed a
palpable and overriding error in failing to consider the totality of the circumstances
in respect of the reasonableness of vehicle speed and therefore failed to
consider Russell’s unreasonable speed in the determination of negligence. As
stated in Mustapha v. Culligan of Canada Ltd., 2008 S.C.C. 27 at
para. 7: "A defendant’s conduct is negligent if it creates an unreasonable
risk of harm". Russell’s failure to decrease speed appreciably on entering
the moose warning area in the circumstances created an unreasonable risk of
harm to his passenger, Baker. Russell was therefore driving negligently when he
encountered the moose on the highway.

32 Important factors leading to the
foregoing conclusion were the prevailing highway conditions at the time of the
accident, the diminished and diminishing light, the presence of a moose warning
sign and the gravity of the risk posed by moose. Drivers should bear in mind
that the exercise of the appropriate standard of care may well require drivers
encountering these factors to reduce vehicle speed in moose warning areas.

[41]        
Baker sets out the legal principles applicable to determining whether a
defendant driver failed to meet the required standard of care. However I think
I must be cautious in simply adopting the comments made in that case about the
dangers of driving in a “moose alley” to the facts of this case. Before finding
Mr. Knight failed to meet the standard of care required of him in this case I
must determine the facts and circumstances applicable to him on the evening of
Oct 22, 2008.

[42]        
There is no dispute as to the elements of a claim in negligence. To
prove negligence, the plaintiff must establish on the balance of probabilities that:
(a) the defendant owed the plaintiff a duty of care; (b) the defendant’s
conduct fell below an acceptable standard of care; (c) the accident would not
have occurred but for the defendant’s negligence.

[43]        
In this case there is no doubt Mr. Knight owed a duty of care to
Ms. Knight. The first question therefore is whether he met the required
standard of care. The standard of care required of a person was addressed by
the Court in Ryan v. Victoria (City), [1991] 1 S.C.R. 201 at para. 28:

28        Conduct is negligent if
it creates an objectively unreasonable risk of harm. To avoid liability, a
person must exercise the standard of care that would be expected of an
ordinary, reasonable and prudent person in the same circumstances. The measure
of what is reasonable depends on the facts of each case, including the
likelihood of a known or foreseeable harm, the gravity of that harm, and the
burden or cost which would be incurred to prevent the injury. In addition, one
may look to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.

[44]        
In this case, Mr. Knight’s evidence is that he was driving at the posted
speed limit, was looking straight ahead while driving because of the oncoming
headlights of the Thomas vehicle and took no action when he noticed those
headlights black out. Mr. Knight was aware that there were signs warning of the
risk of moose being present on the highway and had on an earlier occasion seen
a moose on Highway 37, albeit closer to Terrace. He was also aware that the
risk of a moose being present was increased at dusk and that moose were more
likely to be present during the rutting season, which includes October. There
would be a minimal burden imposed on the defendant from driving more slowly.
The only result of doing so would have been that he would have arrived at his destination
a few minutes later than he would have if he was driving at the posted speed.
There can be no doubt that a reasonable person living in Northern British
Columbia would have been aware of the grave consequences of colliding with a
moose at highway speed.

[45]        
With respect to the standard of care, the Insurance Corporation of
British Columbia’s Learn to Drive Smart Manual states at page 129:

Strategies: watching for animals

To help prevent a collision with an animal:

Scan the sides of the roadway ahead for animals

Watch for animal crossing signs when driving through farming
or wooded areas. Slow down in these areas.

Be extra cautious at dusk and dawn. This is when animals move
around to feed, and it is also harder for you to see them at these times.

Look for sudden, unusual spots of light on the roadway at
night. This may be the reflection of your headlights off an animal’s eyes.

Remember that wild animals often
move in herds. If you see one animal, there may be more.

[46]        
I consider that the recommendations contained in the Driver’s Manual to
be relevant in determining whether Mr. Knight met the required standard of care
in this case.

[47]        
In his evidence and examination for discovery, Mr. Knight admitted that
he took none of the precautions recommended above. I am aware that I must be
cautious about admissions made by Mr. Knight in this case given the fact that
his wife is the plaintiff and that he therefore stands to benefit from an award
in her favour. However, taking into account the whole of his evidence, his
demeanor when giving evidence and the direct manner in which he answered
questions put to him, I have no reason to believe that he was attempting to
deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was
consistent with Mr. Knight’s evidence.

[48]        
I conclude that Mr. Knight was operating his vehicle in a negligent
manner on the night of October 22, 2008. I find that given the time of the year
and the time of day and the presence of moose warnings signs on Highway 37, Mr.
Knight was negligent in failing to slow his vehicle and in failing to take any
extra precautions to keep a look out for the presence of moose on or near the
highway.

[49]        
I also find that he was negligent when he failed to immediately slow his
vehicle when he observed something crossing in front of the headlights of Mr.
Thomas’s oncoming truck.

[50]        
In my view a reasonable person in Mr. Knight’s position would have immediately
taken steps to slow his vehicle when he saw the headlights of the oncoming
vehicle black out. I find that Mr. Knight was aware that something was obstructing
the lights of the oncoming vehicle. Given the other factors I have already
outlined – the warning that moose might be present on the highway, the time of
day, and the fact that October is in the rutting season when moose are more
likely to be present – I conclude that a reasonable driver would have realized
that there was a material risk that it was an animal that was obstructing the
lights and would immediately have applied his brakes and slowed his vehicle
until he had ascertained what was causing the obstruction. I find that it was
negligent of Mr. Knight not do so.

Causation

[51]        
Given these finding the question becomes one of causation. Did Mr.
Knight’s failure to meet the required standard of care cause the accident?  To
succeed the plaintiff must establish, on a balance of probabilities, that the
accident would not have occurred but for the negligence of the defendant.

[52]        
The Supreme Court has recently reviewed the question of causation in
tort in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.
In Clements the Court reaffirmed the “but for” test for establishing
causation but emphasized that the court does not require scientific proof of
causation. At para. 46 Chief Justice McLachlan said:

[46]      The foregoing discussion leads me to
the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot
succeed unless she shows as a matter of fact that she would not have suffered
the loss “but for”the negligent act or acts of the defendant. A trial judge is
to take a robust and pragmatic approach to determining if a plaintiff has
established that the defendant’s negligence caused her loss. Scientific proof
of causation is not required.

[53]        
In determining whether the plaintiff has established causation I rely on
the following findings of fact. The light and weather conditions at the time of
the accident were as described by Mr. Thomas. It was not dark and the moose
struck by Mr. Knight’s vehicle was visible without the assistance of
headlights except when it was in the direct glare of the oncoming headlights. I
also find that it was not raining at the time of the accident and that the
pavement was therefore not wet. In addition I find that the moose took at least
10 seconds to cross the southbound lane of Highway 37 and move into the
northbound lane.

[54]        
Based on Mr. Thomas’ evidence and on the cross examination of
Mr. Goldsworthy, who took light meter readings at the site on October 22,
2011 from 6:40 to 6:47 p.m., I conclude that the moose would have been visible
to Mr. Knight had he been keeping a lookout at the shoulders of the highway. In
his cross‑examination Mr. Goldsworthy stated that he could see from 100
to 200 metres down the road. I take his answer to be directed to the times when
he was taking his readings. I conclude that the visibility on October 22, 2008
would have been better than it was on October 22, 2011 because it was raining
on the latter date and the accident occurred some time earlier than Mr. Goldsworthy
took his readings.

[55]        
I also conclude that even on Mr. Knight’s own evidence causation has
been established. A reasonable driver safely operating his vehicle at dusk in
an area known to be frequented by moose would have taken immediate steps to
significantly slow his vehicle when he observed something blocking the
headlights of the oncoming traffic. I find that had Mr Knight taken such action
as soon as he saw the blocking of the oncoming headlights he would have avoided
the collision.

[56]        
The plaintiff has therefore established liability against the defendant.

Damages

[57]        
Ms. Knight claims the following heads of damage:

1.    
Non Pecuniary Damages;

2.    
Damages for Loss of Future Income Earning Capacity;

3.    
Damages for the Cost of Future Care;

4.    
An “In Trust” claim for care provided by Family Members other than
Mr. Knight;

5.    
An “In Trust” claim for care provided by Mr. Knight;

6.    
Damages for Loss of Homemaking Capacity;

7.    
An allowance for Tax Gross Up and Management Fees.

Ms. Knight’s Injuries

[58]        
Ms. Knight suffered devastating injuries in the accident. Counsel for
the defendant did not take issue with much of the evidence led on behalf of Ms.
Knight with respect to the seriousness of her injuries or the damage claims
advanced by her. The defendants led no evidence to contradict the medical
evidence put forward by the plaintiff. Because of this my reasons with respect
to damages will be briefer than they would otherwise be given the quantum of
Ms. Knight’s claims.

[59]        
There is no dispute Ms. Knight suffered catastrophic injuries in this
case. Ms. Knight’s counsel summarized her injuries accurately as follows:

[60]        
Without minimizing her other injuries, Ms. Knight’s most serious injury was
a severe traumatic brain injury. As a result of this injury, Ms. Knight has the
following problems:

[61]        
Ms. Knight was rendered unconscious by the impact of the collision. Her
initial Glasgow Coma Scale at the accident scene was 3/15, indicating a very
severe level of neurological trauma.

[62]        
While still in the vehicle, Ms. Knight was bleeding from the mouth and
her breathing was laboured. It took some time to remove her. She was initially
transferred from the accident scene to Kitimat General Hospital where her Glasgow
Coma Scale improved to 4/15. She required intubation to
facilitate her breathing.

[63]        
At Kitimat General Hospital diagnostic imaging revealed left temporal
contusion and significant closed head injury with subdural haemorrhage and
(cervical level 2) hangman’s fracture.

[64]        
Because of her severe brain injury, Ms. Knight was transferred to
Vancouver Hospital & Health Sciences Centre (VGH) on October 23, 2008. A CT
scan taken on admission to VGH showed diffuse axonal injury with left temporal
contusion, a small subdural haemorrhage and interpeduncular subarachnoid
haemorrhage. A C2 stable hangman’s fracture was identified
which was managed non-surgically with an Aspen collar. Ms. Knight required
operative placement of an EVD (extraventricular drain) and right frontal burr
hole for cranial decompression.

[65]        
An MRI taken on October 24, 2008 showed extensive parenchymal
haemorrhagic petechial foci, which symptoms were in keeping with diffuse axonal
injury and cortical haemorrhagic contusions.

[66]        
Ms. Knight underwent a tracheostomy on November 6, 2008.

[67]        
In November, Ms. Knight’s fetus exhibited fetal distress and was
delivered by Caesarean section on November 11, 2008. At that time Ms. Knight
was still in a minimally responsive state. Fortunately the baby suffered no
injuries in the accident.

[68]        
Ms. Knight required surgical placement of a feeding tube on November 27,
2008.

[69]        
On December 8, 2008, Ms. Knight was still unresponsive to voice. She
opened her left eye in response to tactile stimulation but remained unable to
follow verbal or non-verbal commands. She was unable to speak. At that time she
did not meet the criteria for admission to an acute rehabilitation program.

[70]        
On December 9, 2008 Ms. Knight was transferred to Mills Memorial Hospital
in Terrace, B.C. until a bed became available at Kitimat General Hospital. At
that time she was able to move her limbs and to make protective movements. She
would occasionally open her eyes spontaneously, but was not able to do so on
command.

[71]        
On December 12, 2008 Ms. Knight was transferred to Kitimat General
Hospital. She made slow improvement in her physical abilities and tolerance for
oral intake. Ms. Knight progressed to the point that she could take food orally
and her feeding tube could be removed. By February 2009 she had improved
sufficiently to be a candidate for a rehabilitation program. She was admitted
to the G.F. Strong Rehabilitation Centre on February 23, 2009 to undergo a
multi-disciplinary rehabilitation program.

[72]        
Ms. Knight’s initial cognitive assessment was 2/30 which gradually
improved. She continued to demonstrate severe impairment in visual spatial
awareness and short-term memory. Her balance was unsteady at times. She showed
evidence of dysconjugate gaze. An accurate visual assessment was made difficult
because of Ms. Knight’s limited ability to participate in it. At G.F. Strong
she continued to make slow progress.

[73]        
Eventually, a referral was made for Ms. Knight to participate in a more
prolonged rehabilitation program at Halvor Johnson Centre for Brain Injury in
Ponoka, Alberta. On August 4, 2009, Ms. Knight commenced a comprehensive
multi-disciplinary rehabilitation program at that institution to improve her
independence in performing activities of daily living and to improve her ability
to communicate.

[74]        
Ms. Knight was discharged from Halvor Johnson on December 23, 2009. The
Knight family spent Christmas in Manitoba with relatives and returned home to
Kitimat, B.C. following the holidays. Arrangements were made for Dr. Knight’s
parents to live with the family to provide childcare and home support.

[75]        
On December 24, 2009, Dr. Jassat of Halvor Johnson prepared a full
assessment of Ms. Knight’s cognitive deficits. Dr. Jassat noted ongoing
impairments in orientation, attention, information processing, memory and
follow-through. Ms. Knight demonstrated reduced insight and behavioural
difficulties (emotional lability, anxiety, agitation, and was physically
abusive when agitated). She was deemed medically unfit to drive and to be
competitively employed. Her visual spatial deficits were ongoing. She
demonstrated decreased balance, poor safety awareness, poor judgement,
left-sided neglect and slightly reduced sensation on the right hand. She
exhibited a functional level of verbal expression with a tendency to
perseverate, that is, persevere in repeating phrases or words. She was assessed
as being at risk for affective disorder.

[76]        
The inter-disciplinary discharge summary from Halvor Johnson indicated
the presence of visual, physical, cognitive, social, emotional and behavioural
difficulties. Full-time support was recommended in childrearing and home
management, supervision in all settings due to decreased orientation to her
situation, incomplete awareness of her limitations and lack of understanding as
to the nature and extent of her deficits. It was recommended that there be
twenty- four hour supervision of Ms. Knight to ensure for her safety.

[77]        
Ms. Knight’s condition has not materially changed from what it was on
her discharge from Halvor Johnson.

Non Pecuniary
Damages

[78]        
It is obvious Ms. Knight has suffered devastating injuries. Prior to the
accident she was an intelligent, active mother. She had a bachelor of education
degree from Brandon University in Manitoba and a permanent licence to teach in
that province. She was an accomplished musician, who enjoyed playing the piano.
Ms. Knight’s mother described her as a person who loved to decorate her home,
cook, play the piano and read to her children. She also said her daughter was a
kind and friendly person who made friends easily. In addition, before the
accident Ms. Knight enjoyed driving her car, water skiing, horseback riding and
snowmobiling.

[79]        
As a result of the accident Ms. Knight has experienced a profound loss
of cognitive function. She has problems with short term memory. She is unable
to participate in almost any of the activities described above. She cannot
read, drive a car, horseback ride or operate a snowmobile. Her vision is
impaired with the result that her field of vision is diminished and she tends
to walk into things unless she exercises great care in walking around.

[80]        
Ms. Knight is somewhat aware of her limitations and this has caused her
distress. Her mother described her as being a prisoner in her own body.
However, according to Mr. Knight, she overestimates her abilities and responds
poorly to feedback related to her impairments. Ms. Knight is capable of
attending to her personal care needs but cannot safely go outside her home
without assistance.

[81]        
The principles applicable to an award of non-pecuniary damages are not
in dispute. They were summarized by Kirkpatrick J.A. in Stapley v. Hejslet,
2006 BCCA 34 at paras. 45-46 as follows:

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

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

[Emphasis added in original.]

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[82]        
Ms. Knight’s counsel submits that this is a case that calls for an award
of non-pecuniary damages at the upper limit set out in the “trilogy” of Supreme
Court cases: Andrews v. Grand and Toy Alberta Ltd., [1978] 2 S.C.R. 229;
Arnold v. Teno, [1978] 2 S.C.R. 287; and Thornton v. School District
57 (Prince George), [1978] 2 S.C.R. 267, that fixed an upper limit of
$100,000 for non-pecuniary damages. Counsel are agreed that that upper limit,
adjusted for inflation, is now $350,000.

[83]        
Mr. Knight’s counsel submits that an award of $275,000 to $300,000 is
appropriate in this case. He referred me to O’Connell v. Yung, 2012
BCCA 57, in which the court upheld an award of $275,000 for a plaintiff with a
severe traumatic brain injury. At that time the upper limit as adjusted for
inflation was $333,000.

[84]        
In Spehar v. Beazley, 2004 BCCA 290, the court upheld an
award at the upper limit for a brain injured plaintiff who had undergone a
profound personality change. The plaintiff in Spehar was 16 at the time
of the accident. In dealing with a submission that the injuries suffered were
not as severe as those in the trilogy cases Thackray J.A. said at paras 14 –
16:

[14] The trial judge took no time thereafter in adopting the
submissions made on behalf of Ms. Spehar that her injuries “should attract the
upper limit of non-pecuniary damages” of $280,000. The trial judge referred to Lindal
v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263, 34 B.C.L.R. 273
wherein the court, in refining the reasoning in the “trilogy” (Andrews v.
Grand and Toy Alberta Ltd., [1978] 2 S.C.R. 229; Thornton v. School
District 57 (Prince George), [1978] 2 S.C.R. 267, and Arnold v. Teno,
[1978] 2 S.C.R. 287), noted that the injuries suffered by the plaintiffs
in the trilogy were not identical, but each received an award at the upper
limit. The trial judge also noted this Court’s comments in Blackstock v.
Patterson (1982), 35 B.C.L.R. 231 at 237-38, [1982] 4 W.W.R. 519 (C.A.):

Once it was determined that the
plaintiffs suffered severe personal injuries the court concluded as a matter of
policy that the limit for non-pecuniary damages should be fixed at $100,000.
This conclusion … was based on the premise that in the case of all “severely
injured plaintiffs”, in order to avoid extravagant claims, an upper limit of
$100,000 should be imposed. It follows, that even if the respondent’s injuries
could be said to be different from or not quite as severe as those suffered by
the plaintiffs in the trilogy cases, her injuries were found by the trial judge
to be “devastating”, and, therefore, fell within the $100,000 category fixed in
Lindal and the trilogy cases.

[15] In the case at bar the appellants draw a distinction
between the injuries suffered by Ms. Spehar and the injuries suffered by the
plaintiffs in the trilogy. They also cite cases in this jurisdiction wherein
trial judges have awarded less than the judicial cap for extremely serious
injuries. On the former, I point to the above quotation from Blackstock
as an answer. On the latter, lesser awards in other cases do not dilute the
principle enunciated in Blackstock.

[16] By any measure the injuries
suffered by Ms. Spehar are “devastating”. Furthermore, no error has been
demonstrated on the part of the trial judge in her understanding of the
physiology or the effect of the injuries and in her acceptance of the upper
limit as the award that must be given to Ms. Spehar for non-pecuniary general
damages.

[85]        
I am satisfied that the injuries suffered by Ms. Knight are indeed
devastating. Like the plaintiff in Spehar, she has lost control of her
life. Almost all of the activities that she enjoyed prior to the accident are
now denied to her. She can no longer read or drive an automobile. Her cognitive
ability has been severely compromised. She has lost the ability to provide
guidance and effective parenting for her children. She suffered these injuries
at a relatively young age and will have to cope with them for the rest of her
life. In my view the fact that she is aware of her limitations makes her loss
even more profound.

[86]        
In addition to these permanent disabilities Ms. Knight suffered grievous
physical injuries as a result of the accident. These included a “hangman’s
fracture” of her neck and serious injuries to her jaw. She was in an
unresponsive state from October 22 to about December 10, 2008. While she was in
that state her third child was delivered by caesarian section in November and
she was denied the opportunity to bond with her new born son. She was
hospitalized in a series of hospitals and rehabilitation facilities as outlined
above from October 22, 2008 to December 23, 2009.

[87]        
The authorities make it clear that while regard must be had to other
cases to determine the appropriate range for an award of non-pecuniary damages,
each case must be assessed on its own facts. In my view the facts of this case
warrant an award at the upper limit of $350,000.

Loss of Future
Income Earning Capacity

[88]        
There is no dispute that Ms. Knight is permanently unemployable.
However, no claim is made for past loss of earning capacity because Ms. Knight
did not intend to pursue employment until her youngest child began attending
primary school.

[89]        
A plaintiff who has become permanently unemployable has suffered the
loss of a capital asset for which she is entitled to be compensated. In this
case the sole issue is the extent of that loss.

[90]        
Ms. Knight has a bachelor of education degree and at the time of the
accident was qualified as a teacher in Manitoba. There is no evidence to
suggest that she was not or could not easily have been qualified to teach in
British Columbia. There is evidence that she intended to return to teaching as
soon as her youngest child was enrolled in kindergarten. I therefore consider
that it is appropriate to assess damages for loss of earning capacity on the
earnings approach as explained in Perren v. Lalari, 2010 BCCA 140, then
consider what contingencies should be taken into account in reaching a final
assessment.

[91]        
The defendant does not contest that an award for loss of earning
capacity is warranted in this case. His counsel submits however that the
damages for loss of earning capacity should be assessed on the basis that Ms.
Knight would have pursued a career as an early childhood educator had she not
been injured. He bases this submission on the fact that Ms. Knight did work as
a preschool teacher while in the United States while Mr. Knight was obtaining
his qualifications to work as a chiropractor and practicing there. Counsel also
points to evidence from Mr. Knight that Ms. Knight had discussed starting a
pre-school program in Kitimat with him prior to the accident.

[92]        
I do not accept this submission. Ms. Knight’s circumstances while in the
United States are not the same as those that existed after she returned to Canada.
In addition Ms. Knight successfully qualified to be a school teacher and not an
early childhood educator. The evidence is that she intended to seek employment
as a teacher. As I understand Mr. Knight’s evidence about Ms. Knight starting a
preschool, this discussion arose because there was no such facility operating
in Kitimat and Ms. Knight thought she might be able to provide a facility
that she could take advantage of while she had preschool children. I do not
understand Mr. Knight to have said that his wife considered this to be a long
term carrier choice.

[93]        
I am also of the view that assessing damages on the basis of a
significantly less lucrative career than the plaintiff is qualified for would
be contrary to the principle that this award is for the loss of income earning
capacity. In any event, I am satisfied that Ms. Knight intended to pursue a
career as a teacher. In this regard, I note that the average income of an early
childhood educator is less than that of a high school graduate. I do not think
it is reasonable to assess Ms. Knight’s loss on that basis. She has a
university degree and is qualified for a career that will utilize that degree.
In my view, the correct approach is to assess damages based on earnings
available as an elementary school teacher and then consider what adjustment
should be made for the contingency that Ms. Knight might have chosen to pursue
another career.

[94]        
Ms. Knight filed a report prepared by an economist, Mr. John Struthers,
calculating the present value of the earnings an elementary school teacher
should expect to earn based on projected retirement ages of 65 to 70. In his
report Mr. Struthers also addresses the question of whether this
calculation should be adjusted both for contingencies imposed on the plaintiff
(labour market contingencies) and contingencies based on choices the plaintiff
may make. He provided calculations based on both scenarios.

[95]        
In my view Ms. Knight’s earnings should be discounted only for labour
market contingencies. The loss that is being compensated for is a loss of
capacity. I think the possibility that the plaintiff may have made voluntary
choices that would have reduced her actual earnings over her career should be assessed
based on the plaintiff’s specific circumstances and not on the statistical
prevalence of those choices among all participants in the elementary school
teacher category.

[96]        
I conclude that it is reasonable to base the assessment of Ms. Knight’s
loss of earning capacity on the assumption that she would have continued to
work to age 67, the age at which she would have been entitled to receive Canada
Pension Plan benefits had she been able to enter the labour force. According to
Mr. Struthers’ calculations the present value of Ms. Knight’s potential
earnings as an elementary school teacher to age 67, based on the statutory
discount rate of 1.5%, is $1,460,231.00.

[97]        
There are contingencies to be considered in arriving at a final
assessment of Ms. Knight’s damages. The first is the possibility that Ms.
Knight might have elected to work part time or retire earlier than age 67.
Given Ms. Knight’s close family ties and the fact that Mr. Knight has a
well-paying job as a chiropractor it is reasonable to discount the projected
earning for that contingency.

[98]        
On the other hand, the amounts calculated by Mr. Struthers do not take
into account any non-wage benefits accruing to an employee such as pension and
Canada Pension Plan contributions and employment insurance contributions.
Mr. Struthers’s evidence that the average value of these contributions is
13 to 17% of an employee’s earnings was not challenged by the defendant. There
is also a reasonable possibility that Ms. Knight would have elected to work to
age 70.

[99]        
Taking all of these factors into account and taking a conservative
approach, I would discount Ms. Knight’s claim somewhat and assess her damages
for loss of income earning capacity at $1,350,000.00.

Cost of Future Care

[100]     There is
no dispute that an award for cost of future care is warranted in this case.

[101]     An award
for the cost of future care must be based on what is reasonably necessary on
the medical evidence to promote the mental and physical health of the
Plaintiff: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.),
adopted in Aberdeen v. Langley (Township), 2008 BCCA 420 at para. 41.

[102]     I agree
with counsel’s submission that Ms. Knight is entitled to compensation for the
cost of future care based on what is reasonably necessary to restore her to her
pre-accident condition in so far as that is possible. When full restoration
cannot be achieved, the court must strive to assure full compensation through
the provision of adequate future care. The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health. In Athey v. Leonati, [1996] 3
S.C.R. 458, Major J. stated at para. 32:

32        To understand these
cases, and to see why they are not applicable to the present situation, one
need only consider first principles. The essential purpose and most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been in absent the defendant’s negligence (the “original
position”). However, the plaintiff is not to be placed in a position better
than his or her original one. It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been. It is the difference between these positions, the
“original position” and the “injured position”, which is the plaintiff’s loss.
In the cases referred to above, the intervening event was unrelated to the tort
and therefore affected the plaintiff’s “original position”. The net loss was
therefore not as great as it might have otherwise seemed, so damages were
reduced to reflect this.

[103]     Ms. Knight
did not have any pre-existing condition that would affect assessment of her
damages.

[104]     Ms. Knight
relies on the report of Janice Landy, a registered nurse and qualified life
care planner who prepared a comprehensive Life Care Plan that described
Ms. Knight’s disability and made recommendations to address that
disability. Ms. Landy’s report was endorsed by Dr. Nairn Stewart, a
specialist in physical medicine and rehabilitation. Dr. Stewart approved of all
the items set out in Ms. Landy’s Life Care Plan for Ms. Knight.

[105]     The
defendant did not tender any evidence contradicting Ms. Landy’s recommendations.
The recommendations, together with the present value of their cost as
calculated by Mr. Struthers, are set out as Schedule A and B to these reasons.
Schedule A gives the costs utilizing the lower hourly rates for caregivers and
Schedule B utilizes the higher rates, both as testified to by Ms. Landy.

[106]     Notwithstanding
the uncontradicted evidence with respect to Ms. Knight’s future care
requirements, I am required to satisfy myself that each item claimed is
reasonably necessary to promote Ms. Knight’s physical and mental health to the
extent that it has been impaired by her injuries. In this regard see the
comments of Newbury J.A. in Penner v. Insurance Corporation of British
Columbia, 2011 BCCA 135, at paras. 13-14. Penner was not a
case dealing with a catastrophic injury but the comments contained in it must
be kept in mind in considering whether some items claimed as future care should
more appropriately be considered to be factors to be taken into account in
assessing non pecuniary damages, or are appropriate at all.

[107]     I have
concluded that some of the recommendations made by Ms. Landy should not be
allowed. I consider that the claim for contingency funding for assistive
technology is too speculative to be recoverable. I also cannot find sufficient
support in the evidence for the CNIB recommendations for the claim for a label
scanner. It seems to me that this item would be of limited utility to Ms.
Knight given the provision of a one to one rehabilitation assistant and her
other cognitive deficits. I also find that Ms. Knight would be unlikely to
utilize a fitness centre given her limitations.

[108]     The low range
calculation of all of the cost of future services recommended by Ms. Landy is
$1,070,636 and the high range cost calculation is $1,304,710. The average of
the high and low calculations is $1,187,673. The cost of the items I have
disallowed is $27,314 for both the high and low range calculations. The average
of the low and high calculations for the items I have allowed is therefore
$1,160,359.

[109]     I agree
that Ms. Knight will require additional dental work to address the damage to
her jaw and teeth caused by the accident. I find that the cost of this care is
$10,600, thereby increasing the claim for future care provided by third parties
to $1,170,959.00.

The “In Trust”
Claims

[110]     In
addition to the compensation for third party paid services Ms. Knight seeks
compensation for services gratuitously provided by her mother, Mr. Knight’s
parents and by Mr. Knight.

[111]     The
principles applicable to establishing entitlement to such claims are not in
dispute. They were summarized by D. Smith J., as she then was, in Bystedt v.
Hay, 2001 BCSC 1735 at paras. 180-81:

[180] From a review of these
authorities one can construct a summary of the factors to be considered in the
assessment of "in trust" claims:

(a) the services provided
must replace services necessary for the care of the plaintiff as a result of a
plaintiff’s injuries;

(b) if the services are
rendered by a family member, they must be over and above what would be expected
from the family relationship (here, the normal care of an uninjured child);

(c) the maximum value of such
services is the cost of obtaining the services outside the family;

(d) where the opportunity
cost to the care-giving family member is lower than the cost of obtaining the
services independently, the court will award the lower amount;

(e) 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; and,

(f) the family members
providing the services need not forego other income and there need not be
payment for the services rendered.

[181] In determining the value
of the plaintiff’s "in trust" claim, the factors noted by counsel for
the defendant cannot be ignored. While consideration must be given to the 24
hour care provided to Morgan by her family, any compensation awarded must be
discounted to account for the time that would be expected for the normal care
of an uninjured child as well as the compensation Wendy has already received
thus far.

[112]     I have no
difficulty in concluding that an award is warranted for the services provided
by the plaintiff’s mother, Ms. Graham. I accept Ms. Graham’s evidence that
the services she performed for her daughter were necessary for her care and
well-being. Ms. Graham helped care for Ms. Knight while she was in Kitimat
hospital from December 9, 2008 to February 23, 2009, when she was transferred
to the Halvor Johnson facility in Alberta.

[113]     However I
do not think it reasonable to award damages based on 12 hours per day 7 days a
week for 75 days as claimed. It seems to me that some of the time Ms. Graham
spent with Ms. Knight was time that any mother would have spent visiting a
hospitalized child. I think that it is reasonable to conclude that Ms. Graham
spent 6 hours per day attending to Ms. Knight’s needs during this period.
Placing a value of $20 per hour for the time spent providing care I assess
damages for this claim at $9000.

[114]     Similarly
it is clear that the claim in respect of the services provided by
Mr. Knight’s parents is warranted. I find that they performed services
that were necessary for Ms. Knight’s care and for the care of her children that
but for the injury Ms. Knight would have been able to provide.

[115]     Counsel
for Mr. Knight does not dispute that some award is appropriate for the care and
services provided by Mr. Knight’s parents. However he submits that the amounts
claimed are excessive. The claim is for $137,088. This is based on both parents
spending 8 hours a day 7 days a week for 17 months providing care to Ms. Knight
and her children.

[116]     I agree
with counsel for Mr. Knight that this claim is excessive. It represents 16
hours per day of care over the 17 month period. It also fails to take into
account that as grandparents the Knights would in the ordinary course have
spent time with their grandchildren. In all the circumstances, including the
long period of Ms. Knight’s hospitalization and her well documented needs for
assistance I assess this claim for Mr. Knight’s parents at $60,000.

[117]     In his
written submissions Ms. Knight’s counsel described the claims for services
provided without change by family members as “in trust” claims. However, Mr.
Knight is the tortfeasor who caused the injuries to Knight. The question that
must be addressed in whether Ms. Knight can in law recover compensation for
past and future services provided by the tortfeasor.

[118]     Ms. Landy
has made no allowance for any amount to Ms. Knight in respect of such services.
However, I am satisfied that Mr. Knight does provide his wife a
significant amount of care necessitated by her condition on a daily and weekly
basis. Ms. Landy’s observations and Mr. Knight’s evidence as to responsibilities
and the care he has provided to Ms. Knight confirm that he is providing
significantly greater assistance to her than before the accident and that that
assistance goes well beyond what would be expected in a normal marriage
relationship.

[119]     Ms.
Landy’s Care Plan makes provision for assistance to Ms. Knight for only
five days a week, 48 weeks per year but the evidence, including the Halvor
Johnson discharge assessment, establishes that she requires assistance every
day. The Care Plan therefore assumes that Mr. Knight will be providing
assistance on weekends and when the family is away from Kitimat.

[120]     Counsel
were not able to find any Canadian authority on the issue of whether a
plaintiff may recover damages for services provided by a tortfeasor that would
have been recoverable had they been provided by anyone else. This question has
been considered by the House of Lords in England and by the High Court of
Australia, which reached opposite conclusions.

[121]     In Hunt
v. Severs, [1994] 2 A.C. 350, the House of Lords overturned a decision of
the Court of Appeal that had awarded damages to a plaintiff for the value of
services provided to her by her husband, who had caused her injuries.

[122]     In
allowing such damages, the lower courts had applied an earlier English Court of
Appeal decision, Donnelly v. Joyce, [1974] Q.B. 454, which held
that once an injured plaintiff establishes a need for care services she was
entitled to compensation for the reasonable costs of those services even if she
did not have to pay for them because it was her own loss that was being
compensated for.

[123]    
Lord Bridge of Harwich rejected the analysis of the basis for
compensation set out in Donnelly at p 360-1 of Hunt:

In Donnelly v. Joyce [1974] Q.B. 454, the injured
plaintiff was a boy of six. His mother gave up her work for a period to provide
necessary care for him and the disputed item in his claim related to the
mother’s loss of wages. The judgment of the court delivered by Megaw L.J.
contains a lengthy review of the authorities, but the key passage relied on by
the trial judge and the Court of Appeal in the instant case is at pp. 461-462,
and reads:

“We do not
agree with the proposition, inherent in Mr. Hamilton’s submission, that the
plaintiffs claim, in circumstances such as the present, is properly to be
regarded as being, to use his phrase, ‘in relation to someone else’s loss,’
merely because someone else has provided to, or for the benefit of, the
plaintiff—the injured person— the money, or the services to be valued as money,
to provide for needs of the plaintiff directly caused by the defendant’s
wrongdoing. The loss is the plaintiff’s loss. The question from what source the
plaintiff’s needs have been met, the question who has paid the money or given
the services, the question whether or not the plaintiff is or is not under a
legal or moral liability to repay, are, so far as the defendant and his
liability are concerned, all irrelevant. The plaintiff’s loss, to take this
present case, is not the expenditure of money to buy the special boots or to
pay for the nursing attention. His loss is the existence of the need for those
special boots or for those nursing services, the value of which for purposes of
damages—for the purpose of the ascertainment of the amount of his loss—is the
proper and reasonable cost of supplying those needs. That, in our judgment, is
the key to the problem. So far as the defendant is concerned, the loss is not
someone else’s loss. It is the plaintiff’s loss.

“Hence it does
not matter, so far as the defendant’s liability to the plaintiff is concerned,
whether the needs have been supplied by the plaintiff out of his own pocket or
by a charitable contribution to him from some other person whom we shall call
the ‘provider;’ it does not matter, for that purpose, whether the plaintiff has
a legal liability, absolute or conditional, to repay to the provider what he
has received, because of the general law or because *of some private agreement
between himself and the provider; it does not matter whether he has a moral
obligation, however ascertained or defined, so to do. The question of legal
liability to reimburse the provider may be very relevant to the question of the
legal right of the provider to recover from the plaintiff. That may depend on
the nature of the liability imposed by the general law or the particular
agreement. But it is not a matter which affects the right of the plaintiff
against the wrongdoer.”

With respect, I do not find this
reasoning convincing. I accept that the basis of a plaintiff’s claim for
damages may consist in his need for services but I cannot accept that the
question from what source that need has been met is irrelevant. If an injured
plaintiff is treated in hospital as a private patient he is entitled to recover
the cost of that treatment. But if he receives free treatment under the
National Health Service, his need has been met without cost to him and he
cannot claim the cost of the treatment from the tortfeasor. So it cannot, I
think, be right to say that in all cases the plaintiff’s loss is “for the
purpose of damages . . . the proper and reasonable cost of supplying [his]
needs.”

[124]     Lord
Bridge went on to state that in England the proper rationale for awarding
damages in respect of services provided gratuitously by family members was to
enable the caregiver to be compensated for his or her services and not to
compensate the plaintiff. At page 363 he stated the proposition as follows:

Thus, in both England and
Scotland the law now ensures that an injured plaintiff may recover the
reasonable value of gratuitous services rendered to him by way of voluntary
care by a member of his family. Differences between the English common law
route and the Scottish statutory route to this conclusion are, I think, rarely
likely to be of practical importance, since in most cases the sum recovered
will simply go to swell the family income. But it is nevertheless important to
recognise that the underlying rationale of the English law, as all the cases
before Donnelly v. Joyce [1974] Q.B. 454 demonstrate, is to enable the
voluntary carer to receive proper recompense for his or her services and I
would think it appropriate for the House to take the opportunity so far as
possible to bring the law of the two countries into accord by adopting the view
of Lord Denning M.R. in Cunningham v. Harrison [1973] Q.B. 942 that in
England the injured plaintiff who recovers damages under this head should hold
them on trust for the voluntary carer.

By
concentrating on the plaintiff’s need and the plaintiff’s loss as the basis of
an award in respect of voluntary care received by the plaintiff, the reasoning
in Donnelly v. Joyce diverts attention from the award’s central
objective of compensating the voluntary carer. Once this is recognised it
becomes evident that there can be no ground in public policy or otherwise for
requiring the tortfeasor to pay to the plaintiff, in respect of the services
which he himself has rendered a sum of money which the plaintiff must then
repay to him.

[125]     In the
above quotation, Lord Bridge agreed with the decision of Lord Denning in Cunningham
v. Harrison, [1973] Q.B. 942 (C.A.), that the purpose of an award for
gratuitous service was to compensate the person who provided the services. The
award was therefore payable to the plaintiff to be held in trust for the person
who provided the services. Given this conceptual basis for the award it
followed logically that it was inappropriate to award damages to the plaintiff
in trust for the tortfeasor.

[126]     In Kars
v. Kars, [1996] HCA 37, (1996) 187 C.L.R. 354, the High Court
of Australia declined to follow Hunt. It agreed with the rationale for
compensation as stated in Donnelly and decided that the true basis for
awarding damages for gratuitous care provided to a plaintiff was to compensate
the plaintiff for his or her loss.

[127]     At page 3
the High Court stated:

Since the acceptance of the rationale in Donnelly v Joyce
by this Court in Griffiths v Kerkemeyer, it cannot be said in Australia
that the underlying rationale of awarding damages for services provided
gratuitously is to enable the carer to receive proper recompense for his or her
services. The damages are recoverable to compensate the plaintiff for the loss
which is evidenced by the need for the services and it is a matter for the
plaintiff whether they are used to recompense the person providing the
services. Thus in Griffiths v Kerkemeyer the idea of a trust advanced by
Lord Denning was rejected by both Stephen J[17] and Mason J[18]. Stephen J
said[19]”

“There is, I think, some
difficulty in the concept of a trust in favour of a provider attaching to some
perhaps wholly unquantified part of an award of damages and this will be the
greater if the provider’s services lie wholly or partly in the future. However,
quite apart from difficulties of this sort, and from those additionally
mentioned by Bray CJ in Beck v Farrelly[20], the plaintiff should, I
think, be regarded as beneficially entitled to the judgment he obtains without
question of the imposition of any trust in respect of some part of his damages
in favour of one who has rendered, or may in the future render, gratuitous
services to him.”

[128]     In Kars
the Court held that damages in respect of necessary services gratuitously
provided were payable to the plaintiff in his or her own right and not in trust
for the person who provided the services and were therefore recoverable even if
the services were provided by the tortfeasor. At page 15, the court stated:

The starting point to explain our
conclusion is a clear recollection of the principle that the Court is not
concerned, as such, to quantify a plaintiff’s loss or even to explore the moral
or legal obligations to a care provider. It is, as has been repeatedly stated,
to provide the injured plaintiff with damages as compensation for his or her
need, as established by the evidence. The fact that a defendant fulfils the
function of providing services does not, as such, decrease in the slightest the
plaintiff’s need. Keeping in mind this explanation of the basis for the
rationale for the exceptional recovery under Griffiths v Kerkemeyer is
essential for working out, in the most consistent and least unsatisfactory way,
the practical problems and those of legal principle presented in this case.
This was the approach taken to the task of calculation of which Van Gervan v
Fenton is an illustration. This case simply identifies another practical
problem, the guiding principle for the solution of which is the same: the
plaintiff’s need.

When this focus is kept in mind,
the anomaly of depriving the plaintiff of recovery, simply because the care is
provided by the torfeasor, is presented in sharp relief. From the plaintiff’s
point of view, the identity of the person who fulfils the need caused by the
tort matters not. If profoundly injured the plaintiff may even be unaware of
who is fulfilling the need. If the mother in Donnelly v Joyce had been
the tortfeasor, in the circumstances of that case, she could still have given
up her employment to cater for the infant plaintiff’s needs. To deny the
plaintiff recovery in such a case would not only be unjust to the plaintiff, it
would provide the very windfall to the defendant (or, more realistically, his
or her insurer) which sustained the original provision of damages for
gratuitous services in favour of plaintiffs.

[129]     In the
result the High Court concluded that the plaintiff was entitled to recover
damages for gratuitous services that the defendant would provide in the future.
The decision is summarized at page 17:

The result which is reached is not wholly satisfying. But a
consideration of the conflicting opinions, judicial and academic, in Australia
and England demonstrates why this is so. In the end, a choice must be made as
to the least unsatisfactory solution to the problem.

The choice which we prefer reduces the anomalies and
absurdities. It lays emphasis on the provision for the injured plaintiff’s
needs which is the foundation of recovery in such a case. It avoids an
effective windfall to a compulsory statutory insurer, which would depend on its
taking advantage of the fulfilment by a family member (who happens to be the
tortfeasor) of obligations derived from duty and affection. It measures to the
full the plaintiff’s need for services. To the extent not already done, it
requires their reflection in the premium costs of compulsory insurance levied
on insureds as a whole. It reduces the risk of real injustice to a plaintiff
should a court, discounting the damages for the plaintiff’s needs to be
fulfilled by the tortfeasor, fail adequately to take into account the
vicissitudes of life which could throw the plaintiff back on others, including
commercial care givers, for services no longer provided by the tortfeasor.

In the result, the Court of
Appeal was right to vary the judgment entered by the primary judge, although
for reasons different from those given. As ordered, that judgment should
include in its entirety, the respondent’s established need in the future for
care to be provided by neighbours and family members, including by the
appellant. The fact that he was the tortfeasor did not reduce the respondent’s
entitlement in this regard. Because of the agreement of the parties at trial as
to the quantification of the past needs of the respondent, satisfied by
voluntary services, no question arises as to that component of the judgment.

[130]    
The House of Lords and the High Court disagreed on the
question of whether Donnelly correctly set out the rationale for
awarding damages for gratuitous services. Donnelly has been frequently
referred to and applied in Canadian courts. In Crane v. Worwood, (1992)
65 B.C.L.R. (2d) 16, [1992] B.C.J. No. 433 Huddart J., as she then was,
applied Donnelly at page 23 as follows:

Two English cases decided on two consecutive days by the
Court of Appeal in 1973 are the foundation of the plaintiffs’ claim. In Donnelly
v. Joyce, supra, the 6-year old plaintiff had been injured in a motor
vehicle accident which was caused by the plaintiff’s negligence. The claim for
special damages comprised three items:

a. travelling expenses of parents
to and from hospital;

b. cost of special socks and boots;
and

c. "two years loss of wages
incurred by the plaintiff’s mother while caring for the plaintiff".

The trial judge awarded the plaintiff an amount representing
six months loss of his mother’s wages and the defendant appealed. While the
claim was framed as "loss of wages", the court awarded damages for
the value of the nursing services the plaintiff’s mother provided. Megaw L.J.
stated the underlying principle at p. 480 [All E.R.]:

The loss is the plaintiff’s
loss. The question from what source the plaintiff’s needs have been met, the
question who has paid the money or given the services, the question whether or
not the plaintiff is or is not under a legal or moral liability to repay, are,
so far as the defendant and his liability are concerned, all irrelevant. The
plaintiff’s loss, to take this present case, is not the expenditure of money to
buy the special boots or to pay for the nursing attention. His loss is the
existence of the need for those special boots or for those nursing services,
the value of which for purposes of damages – for the purpose of the
ascertainment of the amount of his loss – is the proper and reasonable cost of
supplying those needs…So far as the defendant is concerned, the loss is not
someone else’s loss. It is the plaintiff’s loss.

He continued at p. 482:

We come to the authorities, binding on us, which lead us to
the conclusion that the defendant is liable in this action to pay to the
plaintiff, in the plaintiff’s action as constituted, the value of the
mother’s services… [emphasis added].

[131]     The issue
in Crane was how damages for gratuitous services provided by the
plaintiff’s husband should be assessed. Huddart J. decided the damages should
be assessed based on the cost of having such services provided by a paid
caregiver and not on the loss of income suffered by the husband who provided
the services. In so deciding, Huddart J. held that the loss being compensated
for was the plaintiff’s loss.

[132]     In Feng
v. Graham (1988), 25 B.C.L.R. (2d) 116, [1988] B.C.J. No. 514,
Wallace J.A. accepted the ratio in Donnelly as correct and commented on
the problems inherent in the “in trust” approach adopted in Cunningham
at page 125-6 as follows:

In the Cunningham case [supra] the plaintiff was a
quadraplegic. He was entirely dependent on others for manual evacuation of
bowels and urine and for dressing and washing, and partly for feeding. His wife
had looked after him – doing everything for him for a 15-month period prior to
her sudden death. It was held that the husband should recover compensation for
the value of services that his wife rendered to him, and it should not be
necessary for the parties to draw up a legal agreement to recover them. Lord
Denning expressed the view that on recovering such an amount the husband should
hold it in trust for his wife.

This direction creates a problem.
If the spouse does not have a legal right to compensation – having agreed to
perform the services gratuitously – it is difficult to perceive how she could
enforce the trust. Unless this desirable objective is attained, the court may
well be compensating a victim for a loss which he has not suffered and thus
unjustly enriching him at the expense of a good samaritan.

[133]     Wallace
J.A. then proceeded to cite with approval the very passage from Donnelly
that the House of Lords later rejected in Hunt.

[134]     Many Canadian
courts seem to have regarded Donnelly and Cunningham as being
consistent with one another because in both cases the Court made an award for
the provision of gratuitous services to an injured plaintiff. In many of the
Canadian cases the award is described as an “in trust” award without any
further comment on the rationale for the award. Except in the case of a claim
for services provided by a tortfeasor, the result will usually be the same
regardless of which rationale is adopted.

[135]     In my
view, the basis for awarding damages for gratuitous care articulated in Kars
is consistent with the decisions of this court in Crane and the British
Columbia Court of Appeal in Feng. I respectfully find the reasoning in Kars
to be persuasive. While the British Columbia cases I have referred to do
not address the specific question of whether a plaintiff is entitled to recover
damages in respect of necessary care provided by the tortfeasor, they do accept
that the loss relating to such services is the plaintiff’s loss. Once such
damages are characterized as compensation to the plaintiff he or she is
entitled to recovery regardless of who provides the services in the absence of
legislation to the contrary.

[136]     I find the
rationale set out in Donnelly and adopted in Kars attractive for
a number of reasons. Firstly it eliminates the necessity of resorting to a
legal fiction, an in trust award, to grant recovery for gratuitous services.
Secondly it would appear to eliminate the necessity of providing for the
contingency that a gratuitous caregiver may not be available in the future.
Thirdly it provides a uniform rational for compensation for all necessary care
no matter how provided.

[137]     I
therefore conclude that Ms. Knight is not disentitled from recovering for
services provided by her husband made necessary by her injuries merely because
he is the tortfeasor. The loss that is being compensated for is measured by Ms.
Knight’s need for the care her husband provides. As I have already stated I am
satisfied that Ms. Knight has had and will continue to have a need for the
personal care provided by Mr. Knight because of the injuries she suffered in
the accident. I adopt the analyses in Kars that Ms. Knight is entitled
to recover damages in respect of both past and future services.

[138]     That said,
both authority and common sense require claims for gratuitous services to be
carefully scrutinized. Such claims must meet the criteria set out in Bystedt,
set out at paragraph 111 of these reasons. Any award must also be discounted
for any time relating to assistance that Mr. Knight would have provided had Ms.
Knight not been injured.

[139]     The
evidence on the extent of the services being provided by Mr. Knight is somewhat
sparse. Ms. Landy did outline some assistance provided to Ms. Knight in the observations
forming part of her report. Mr. Knight testified to assistance he provides
to his wife but I found his evidence to be somewhat lacking in specificity.

[140]     However,
even taking the limitations in the evidence into account, I conclude that Mr.
Knight has provided assistance to Ms. Knight on a daily basis up to the time of
the trial. Based on Ms. Landy’s evidence and on the Halvor Johnson
post-discharge report, I am satisfied Ms. Knight has had a need for such
personal assistance since May 2010, when Mr. Knight’s parents left the
parties’ home. I find that Mr. Knight did provide assistance in that
period but could not provide the same level of services that Ms. Landy found
was necessary for Ms. Knight.

[141]     I consider
it reasonable and conservative to conclude that from May 2010 to trial Mr. Knight
provided 2 hours per day of assistance to Ms. Knight on the days he was working
and 4 hours on the days he was not. There were approximately 1400 days in the
period from May 2010 to the date of trial. For the purposes of assessing damages
I value the time spent by Mr. Knight at $20 per hour, being the lower cost
of providing such services set out in the Life Care Plan. Making the conservative
assumption Mr. Knight worked 1000 of the 1400 days in the relevant period the
value of his services equals 3600 hours X $20 per hour or $72,000, rounded to
$70,000.

[142]     I assess
damages in respect of past services in favour of Ms. Knight in the amount of
$70,000.

[143]     Accordingly
I award damages for past care as follows:

[144]     With
respect to future care I find that Ms. Knight is entitled to an award in
respect of services provided by Mr. Knight based on Mr. Knight providing four
hours of care per day on weekends and 28 hours per week during the four weeks
in which Ms. Landy has made no provision for outside assistance. Again using
$20 per hour as a reasonable rate for such services I assess the annual cost of
such services at $9920 per year. Using the multiplier of $30,660 to life
expectancy set out in Mr. Struthers’s supplementary report, the present value
of these services is 9920/1000 x 30,660 = $304,147.

[145]     The
damages relating to the future services that Ms. Knight will require from her
husband must be added to the cost of future care that will be provided by paid
third parties. The total cost is $1,475, 106.

[146]     Bearing in
mind the need to be conservative in assessing damages under this head I assess
Ms. Knight’s damages for future care at $1,400,000.

Loss of Homemaking Capacity

[147]     Conceptually,
a claim for loss of homemaking capacity is distinct from a claim for future
care. A claim for loss of homemaking capacity is analogous to a claim for loss
of earning capacity, that is, the loss of a capital asset. Justice Kirkpatrick
addressed this distinction in O’Connell  at para 65:

[65]      As explained by Professor Cooper-Stephenson in
Personal Injury Damages in Canada, 2d ed. (Scarborough: Carswell, 1996) at 315,
the claims for loss of home making capacity and for future cost of care are
distinct:

The claim for loss of homemaking capacity is for the loss
of the value of work which would have been rendered by the plaintiff, but which
because of the injuries cannot now be performed. The plaintiff has lost the
ability to work in a manner that would have been valuable to her- or himself as
well as to others. The claim is not the same as that under future cost of care,
which is for the value of services that must now be rendered to the plaintiff.
It is true that the two claims may overlap—just as the normal claim for loss of
earnings and cost of care may do so—because the cost of care claim may include
items which the plaintiff-homemaker would have performed but for the accident.
However, a large portion of homemaking involves the performance of work for
others, namely, the family unit, and in many cases the claim for loss of
homemaking capacity is wholly distinguishable from that for cost of care,
particularly if the plaintiff is hospitalized. The loss is a “negative” loss,
in the sense that it is the loss of something the plaintiff would have had (her
homemaking work) but which she now does not have because of the accident. This
places it squarely under the head of loss of working capacity. In contrast, the
expense of services provided by others to care for the plaintiff are “positive”
losses—the addition of an extra expense—and they clearly fall under cost of
care.

[148]     In this
case I have already made an award for interior home maintenance and a personal
care assistant. These awards are distinct but overlap with the claim for loss
of housekeeping capacity. As such they do not in my view preclude an award for
loss of housekeeping capacity but are relevant to the assessment of damages
under this head. The award for interior maintenance provides for four hours per
week of assistance.

[149]     In this
case Ms. Knight was clearly an effective homemaker. She was an accomplished
cook and preserved fruits and vegetables. The awards made for future care do
not adequately address the loss of homemaking capacity suffered by her.

[150]      Ms.
Knight was 31 at the time of the accident and thus had many years of capacity
available to her. In all the circumstances, and taking into account the awards
I have already made I assess damages for loss of housekeeping capacity at
$25,000.

Tax Gross Up and
Management Fees

[151]     The
parties agree that there should be an award for tax gross up and management
fees in this case. The law is clear that such amounts are necessary in cases
involving substantial awards for future damages. Counsel for Ms. Knight called
evidence with respect to these issues. However the evidence was specific to the
amounts claimed by the plaintiff.

[152]     Counsel
for Mr. Knight submitted that consideration of tax gross up and management fees
should be deferred to give the parties the opportunity to reach agreement and
if they cannot the parties should be at liberty to make further submissions and
had further evidence limited to that issue.

[153]     I accept
Mr. Knight’s submission on this issue. After the conclusion of argument in this
case the Chief Justice of the Supreme Court of British Columbia deposited a
regulation changing the discount rates to be applied to future damages and loss
of earning capacity. The new discount rates have resulted in a higher award for
the cost of future care and loss of earning capacity than that produced by the
application of the old discount rates. In addition the amounts I awarded are
different than the amounts claimed at trial. I therefore did not have
sufficient evidence before me to make the necessary findings on these issues.

[154]     In most
cases the parties have no difficulty in reaching agreement on the appropriate
amounts for tax gross up and management fees. Accordingly I direct that the
parties attempt to reach agreement on the appropriate awards for tax gross up
and management fees and if they are unable to have liberty to apply for
determination of those issues.

Summary of
Damages Awarded

[155]     In
summary, I award the plaintiff the following damages:

[156]    
Subject to any matters of which I am not aware, the plaintiff is
entitled to her costs on Scale B.

“The Honourable Mr. Justice Sewell”

SCHEDULE “A”

SCHEDULE “B”