IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Johal v. Meyede,

 

2015 BCSC 1070

Date: 20150623

Docket: M121653

Registry:
Vancouver

Between:

Lisa Johal

Plaintiff

And

Constance Meyede
and John Meyede

Defendants

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

Counsel for the Plaintiff:

M. Elliott
C.J. Wagner

Counsel for the Defendants:

K. Armstrong

Place and Date of Hearing:

Vancouver, B.C.

May 19, 2015

Place and Date of Judgment:

Vancouver, B.C.

June 23, 2015



I.                
introduction

[1]            
The reasons for judgment for the December 31, 2013 order in this
action following trial are reported: Johal v. Meyede, 2013 BCSC 2381.

[2]            
The December 31, 2013 order was appealed with respect to future
income loss and cost of future care. Our Court of Appeal found no basis to
interfere with the award for future loss of income. The Court of Appeal
remitted the matter of cost of future care to this Court for a fresh
determination: Johal v. Meyede, 2014 BCCA 509.

[3]            
Our Court of Appeal summarized neatly Ms. Johal’s injuries:

[1] The respondent, Lisa Johal, was injured in a motor
vehicle accident on December 6, 2010. At the time of trial in December 2013
she was 30 years old. It is undisputed that, as a result of the accident, she
suffered soft tissue injuries to her neck, right shoulder and right arm,
resulting in significant pain and headaches. It is also undisputed that her
injuries had not resolved by the trial date and that, as found by the trial
judge, “it is highly probable that [she] will suffer pain and headaches for the
rest of her life.”

[2] What is in dispute on appeal
are the judge’s awards for loss of future income capacity − $611,000
− and for cost of future care − $90,000.

II.              
claim for cost of future care

[4]            
Ms. Johal’s claim for cost of future care was based on the
following:

One-time care costs:

Requirements

One-time Costs

Kinesiology sessions 4 – 5 sessions
annually for three years

 

$1,350

Ergonomic workplace
assessment

$800

__________________

Total

$2,150

 

 

 

 

Yearly
costs:

Requirements

Yearly Costs

Massage therapy one to two times per month

24 sessions per
year at
$95 per session = $2,280

 

Botox injections to
the right shoulder

4 sessions per year
at
$800 per treatment = $3,200

 

Prescription medicine (i.e. nortriptyline)

Approximately $300
per year

 

6 – 8 physiotherapy sessions per year

8 sessions per year
at
$90 per session = $720

 

Chiropractic treatment

12 sessions per
year at
$80 per session = $960

 

Gym pass

$372

 

Seasonal cleaning and gardening assistance

3 – 4 times per
year at approximately $200 per session = approx. $700

___________________

Total

$8,532

 

[5]            
At trial, Ms. Johal sought an award of $128,403.10 for cost of
future care to account for contingencies. As her counsel noted at trial, based
on average life expectancy, the present value was $204,392.59. If Ms. Johal
were to cease all treatment after 10 years, the present value would be
$67,596.39 (using a 8.439 multiplier).

[6]            
The Court awarded $90,000 for cost of future care.

III.            
analysis

[7]            
It is often a difficult task for a trial court to weigh the evidence of
the past to make findings of fact to which the law is then applied. The task is
more difficult where the court must consider the future with all the possibilities,
risks and vagaries, and the other elements of futurity.

[8]            
As noted in the reasons at trial, Ms. Johal is an engaging and
energetic individual who has tried hard to get better and address her symptoms.
The Court has found that Ms. Johal has ambition and wishes to succeed in
her chosen career.

[9]            
The Court will award $90,000. The $90,000 award consists of the
following:

a)

Kinesiology
sessions for the next three years (not disputed)

$1,350

b)

Ergonomic workplace
assessment (not disputed)

$800

c)

Gym pass ($372 per year)

Ms. Johal was a physically active
individual prior to the accident. I find that she most probably
have incurred annual gym fees. Accordingly, I have not made an award for
future gym passes.

$0

d)

Botox injections ($3,200 per year)

Dr. Travlos testified as to the range
of the cost for Botox and the cost of injections. The cost of the Botox is
between $370 to $390 and the cost of private injection may range from $200 to
$1,000. In cross-examination, Dr. Travlos’s view was that the further Botox
injections may help Ms. Johal with her pain around her shoulder and
tingling down the arm. Botox is not a cure. It reduces the symptoms.

Dr. Caillier testified that with
respect to Botox injections that within her own practice, she has “several
patients where we’re now doing them five or six years, and they help to
manage what’s there.” The injections are every three to four months.

As of the date of trial, Ms. Johal had
undergone one Botox injection. Dr. Travlos considered a trial of Botox
to be appropriate. Ms. Johal is willing to undergo further Botox
injections. She received approximately one and a half months of relief. As
noted, Ms. Johal found the treatment to be “scary; it was needles going
into my neck”. Understandably, she is apprehensive and cautious because of
the stated risks.

Recognizing the Botox injections are to be
undertaken on a trial basis without certainty of significant relief I have
reduced the plaintiff’s counsel suggested award of $27,004 by 50% to $13,502.
He had calculated $27,004 based on 4 injections per year for 10 years with an
individual treatment cost of $800. He used Mr. Benning’s multiplier of
8.439 for the ten year period. All of these figures were supported by the
evidence, and in particular, the $800 per treatment cost the Court finds it
to be reasonable.

$13,502

e)

Seasonal cleaning and gardening assistance
($700 per year)

Ms. Johal needs help with heavier
chores and she has paid friends for their help. Ms. L. Craig’s
functional capacity evaluation and testimony at trial supports the need for
such help.

 

 

The ten year estimate suggested by
plaintiff’s counsel is conservative. As noted, “it is highly probable that
[Ms. Johal] will suffer pain and headaches for the rest of her life”.
I will award a lump sum of $5,907 for 10 years of seasonal cleaning and
gardening help. The $5,907 is derived from an estimate cost of $700 per year
with an economic multiplier of 8.439.

$5,907

f)

Massage $2,280 per year, Prescription
Medicines $300 per year, Physiotherapy $720 per year, Chiropractic Treatment
$960 per year (Total: $4,260 per year).

The evidence supported the need for each of
these items and that each was tied to Ms. Johal’s injuries. Each would
help with Ms. Johal’s symptoms. Ms. Johal is an energetic and
focused individual. The Court finds that Ms. Johal will follow the
recommended treatments. She wishes to get better or at least relieve the
chronicity of her symptoms.

Dr. Caillier and Ms. Craig
recommended massage therapy. Dr. Caillier recommended 1 to 2 sessions
per month. Ms. Craig stated that Ms. Johal would require
intermittent physiotherapy treatments to help manage her symptoms. Ms. Craig
estimated 6 to 8 sessions per year. The Court views 8 sessions per year as
reasonable and accepts plaintiff’s counsel’s estimate of $90 per session.
I note that the plaintiff is conservative in asking for these amounts
until she reaches age 65.

Dr. Caillier noted the probable need
for medications such as Tylenol, Advil, melatonin and possibly amitriptyline
(for sleep, if necessary). Dr. Travlos in his written report recommended
a trial of nortriptyline for her pain.

$300 per year is not an extravagant
estimate.

Ms. Johal testified that she receives
temporary relief from chiropractic treatment. The practice of chiropractic
treatment is a recognized health profession with its own College: Health
Professions Act, Chiropractors Regulation, B.C. Reg. 414/2008.
Pragmatically viewed, Ms. Johal’s seeking of chiropractic treatment is a
reasonable approach by which she may find some temporary relief from her
pain. Twelve times per year at $80 per session is reasonable subject to the
overlap aspects described below. Her symptoms are for the most part chronic.

The Court finds that there may be some
overlapping benefits. That is, to the extent Ms. Johal receives
chiropractic treatment it may reduce the need for massage, physiotherapy, or
prescription medication. Similarly, taking a recommended prescription
medication may reduce the need for the other treatments.

Finding that there is overlap the Court
will reduce the $4,260 per year estimate by 30% with the four types of
treatment reduced proportionally. The annual expense is $2,982 ($4,260 x 0.7)

I have then used the actuarial multiplier
of 23.036. The multiplier reflects that Ms. Johal will need the four
types of treatment noted for the rest of her working life (age 65). I am
satisfied that she will be active physically as much as her pain allows for
the rest of her life. Age 65 is a conservative figure.

Subject to the further rounding, the award
under this heading is $68,693 ($2,982 x 23.036). I will decrease this
figure to $68,441 so that the total award is the simple, round, $90,000.

 

 

My earlier reasons awarding the $90,000
represented a rounding resulting from the nature of the exercise of a court
trying to measure future events. The decrease of $252 ($68,693 – $68,441) is
consistent with the inherent difficulties associated with weighing the
monetary costs of future events with exactitude. The $252 decrease is also
calculated proportionally.

$68,441

 

Total

$90,000

 

 

 

[10]        
At hearing, the defendants’ counsel taking a stand-back view argued that
plaintiffs in positions similar to that of Ms. Johal usually discontinue most
treatments within a period of time and he would “bet a really a really large
amount of money” that Ms. Johal would discontinue massage treatments
within 15 years.

[11]        
Generally speaking, when one has pain and discomfort, one seeks relief.
It may be that in some instances some individuals finding no relief from pain
and discomfort become morose and resigned to his or her fate. In the matter at
bar, the Court finds, with respect, that the defendants’ argument is not
consistent with Ms. Johal’s personality, drive, or her discomfort and pain,
which is for the most part, chronic.

[12]        
If the defendants had at trial argued that Ms. Johal would resign
herself to the pain and discomfort of her injuries within a period of time,
plaintiff’s counsel may have argued that the future loss of income award should
have been greater.

[13]        
Ms. Johal is a driven person who wishes to succeed in her career
and be a mother. The future care costs will facilitate both goals. As noted,
Ms. Johal has claimed for future care costs to age 65.

[14]        
As a check on the validity of the total, standing back and pragmatically
viewed, the $90,000 award for future care costs for an otherwise healthy 30 year
old with Ms. Johal’s injuries is reasonable.

IV.           
CONCLUSION

[15]        
The award for the cost of future care is $90,000.

[16]        
The Court will not award costs.

____________ “Funt
J.”_____________
Funt J.

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