IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Kijowski v. Scott, |
| 2015 BCSC 2335 |
Date: 20151211
Docket: M130303
Registry:
Vancouver
Between:
Brian Kijowski
Plaintiff
And
Jennifer Scott and
Jeffrey Robson Scott
Defendants
Before:
The Honourable Mr. Justice Greyell
Reasons for Judgment
Counsel for the Plaintiff: | J.K. Logan E.P. Good |
Counsel for the Defendants: | R.G. Dempsey |
Place and Date of Trial/Hearing: | Vancouver, B.C. March 16 – 20 and August 12 – 14, 20, September 9, 2015 |
Place and Date of Judgment: | Vancouver, B.C. December 11, 2015 |
Table of Contents
The Circumstances of the Accident. 3
Mr. Kijowskis Life and Personal
Circumstances before the Accident. 4
Mr. Kijowski Subsequent to the
Accident. 6
Plaintiffs Medical Witnesses. 13
The Defendants Medical Evidence. 21
Decision on Non-pecuniary Damages. 24
Past Loss of Income Earning Capacity. 26
Loss of Future Income Earning
Capacity. 26
[1]
This is an action for damages arising from a motor vehicle accident
which occurred January 26, 2011 (the Accident). The defendants have admitted
liability.
[2]
The issue involves the amount to be awarded the plaintiff for
non-pecuniary damages, special damages, and costs of future care and the
amount, if any, for loss of future earning capacity.
The Circumstances of the Accident
[3]
The Accident occurred on the evening of January 26, 2011 at the
intersection of the Fraser Highway and 273rd Street in Langley, British
Columbia when a motor vehicle being driven by Mr. Kijowski was struck from
behind by the defendants pick-up truck when he was stopped at a red light.
[4]
Mr. Kijowski testified he had no warning the collision was about to
occur. He said he had his right foot on the brake, heard the sound of brakes
and described the Accident as being like a big explosion. He testified he was
jolted forward and tossed back. When he got out of his vehicle he felt
unsteady, there was ringing in his ears and his chest and the left side of his
face hurt (he assumed from his seat belt).
[5]
The injuries he sustained include tinnitus or ringing in his ears,
intermittent vertigo, hearing loss, difficulties with his balance,
concentration and memory and soft tissue injuries to his neck, back and left
shoulder.
[6]
These injuries continue to affect him to the date of the trial. He testified
he has daily non-stop ringing in his ears which makes it difficult for him to
hear and intermittent dizziness several times a week. He has difficulty hearing
when he is in a conversation with more than one person. He has recurring
headaches about twice a week, left wrist pain and mid back pain alleviated by
Tylenol and regular chiropractic adjustments. Mr. Kijowski has had several
falls at home since the Accident as a result of dizziness.
Mr. Kijowskis Life and Personal Circumstances
before the Accident
[7]
Mr. Kijowski was 63 years of age at the time of trial and 59 at the time
of the Accident. He is married with two step-daughters, aged 21 and 18. He grew
up in the lower mainland region of British Columbia.
[8]
Mr. Kijowski married in 2007 after meeting his wife, Albertine Kijowski,
at a Crime Stoppers conference in the United States. She was a police officer
in New Mexico. The two established a relationship because of their mutual
enjoyment of outdoor activities and physical exercise. After their marriage,
she immigrated to Canada with her two daughters, Stefanee and Amanda, where
they lived in Kamloops.
[9]
Throughout his life prior to the Accident, Mr. Kijowski was a physically
active person who regularly worked out at the gym three to four days a week. He
enjoyed keeping in good physical condition as well as boating, golfing,
jogging, hiking and biking. Since the Accident he has not been able to enjoy
these activities.
[10]
While Mr. Kijowski was in general good physical condition at the time of
the Accident he previously had several medical procedures. In the early 1990s
he had left knee surgery; in 1995, 1996 and 2002 he had three surgeries on his
back at the S1/L5 level; in 1997 he had an arthrotomy of his left shoulder; and
in 2001 arthroscopic surgery on his right shoulder. There was no evidence any
of these medical procedures in any way interfered with his active lifestyle at
the time of the Accident other that his periodic attendance for chiropractic
treatments to tweek his lower back for pain.
Mr. Kijowskis Employment Circumstances before the
Accident
[11]
After completing high school in Squamish, Mr. Kijowski attended BCIT for
six months before moving to Calgary. He worked as an installer with a telephone
installation firm and then became a constable with the Calgary City Police in
1978.
[12]
Mr. Kijowski worked for the Calgary City Police force until 2006 when he
chose to retire early. While working as a policeman he rose to the position of
detective and staff sergeant. He received commendations for his outstanding
service and for going beyond the call of duty.
[13]
After Mr. Kijowski retired he moved to Kamloops where, in 2006, he
became the Chief Executive Officer of Kamloops and District Crime Stoppers. In
September 2008 he moved to Surrey, B.C. and became employed with the Financial
Institutions Commission (FICOM) as a senior investigator where he worked for
two years before taking employment in 2010 with his present employer, Prospera
Credit Union (Prospera) as the Manager of Investigation and Loss Prevention.
He had also taken part-time employment as a clerk with a Home Depot in Kamloops
for a short period to earn extra income.
[14]
Mr. Kijowskis employment income (excluding pension income) since 2008
has been:
2008 | $79,444 |
2009 | $79,740 |
2010 | $82,120 |
2011 | $92,241 |
2012 | $92,201 |
2013 | $92,034 |
2014 | $89,632 |
[15]
His income has varied from year to year as, apart from general wage increments;
he received bonus compensation based on whether Prospera met its business goals
for the year.
Mr. Kijowski Subsequent to the Accident
[16]
Since the Accident Mr. Kijowski has had trouble hearing in both ears,
more on the right side especially in conversations involving more than one
person, has ringing in his ears (tinnitus) again worse on the right side and
has had difficulty with his balance. He says he has difficulty walking in a
straight line, veering to the right, and orients himself by keeping his left hand
against the wall. He also has had dizzy periods about once a day which come on
for no apparent reason.
[17]
He testified his concentration at work and his memory are poor. He is
worried about retaining his job as a result. He goes into work early in an effort
to make sure he is on top of work issues and brings home work but finds he is
too exhausted to do the work.
[18]
He testified he gets easily upset with his wife and youngest daughter as
he forgets what they say to him and this leads to arguments within the family.
[19]
In addition Mr. Kijowski complains of ongoing headaches and neck and
back pain from soft tissue injuries to his neck, back and shoulders. He has had
several falls at home as a result of dizziness. He testified he is careful when
he gets out of bed and when he gets up after kneeling or bending as he can get
vertigo.
[20]
Since the Accident Mr. Kijowski has not participated in the activities
he did prior to the Accident. He had been attending physiotherapy on a regular
basis and finds it helpful.
Plaintiffs Lay Witnesses
Mr. Keith McCarthy
[21]
Mr. McCarthy worked at the same level of management as Mr. Kijowski with
Prospera. He was the Manager of Property and Premises. He has known the
plaintiff since 2010.
[22]
Mr. McCarthy testified he recalled the plaintiff telling him he had been
in the Accident and that he had complained of back, neck pain and headaches.
Mr. McCarthys department did an ergonomic assessment of Mr. Kijowskis
office and increased the height of his chair.
[23]
He described Mr. Kijowski as projecting a tough intimidating exterior
but who was soft-spoken, stoic and as a man who kept personal issues to himself.
He said Mr. Kijowski was not a complainer but had complained on one
occasion of dizziness and ringing in the ears. Mr. McCarthy testified Mr.
Kijowski left a meeting at work and later told him he had done so because he
experienced vertigo.
[24]
Mr. McCarthy testified when Prospera had changed its camera surveillance
from an analog to a digital system in 2012 he thought Mr. Kijowski had real
problems and seemed confused learning the new software.
[25]
In cross-examination, Mr. McCarthy agreed he had seen the plaintiff
every weekday at work since 2010 and had only observed one incident of Mr. Kijowski
appearing dizzy. He testified he had seen the plaintiff at the gym about twice
a week prior to the Accident but not subsequent to the Accident. He was not
aware why Mr. Kijowski no longer attended a gym.
[26]
He testified the digital and analog security software systems were
similar in terms of training and that Mr. Kijowski was the only employee who
seemed to have difficulty learning the new digital system.
Mr. Colin Chin
[27]
Mr. Chin worked as an investigator with Mr. Kijowski at FICOM from
April 2008 to the time Mr. Kijowski left to work for Prospera in 2010.
[28]
He testified the two interacted frequently both in the office and at
coffee to discuss files and other work-related matters.
[29]
Mr. Chen testified Mr. Kijowski had a good memory, was mentally sharp
and described him as being level-headed and even keel, possessing a good work
ethic and a high energy level. He observed no physical issues with Mr. Kijowski
including any difficulty with dizziness, balance or hearing. From time to time
he said he was at the gym with Mr. Kijowski and was impressed with the weights
he was able to lift.
[30]
In cross-examination, he testified that he took over a number of Mr.
Kijowskis files after he left employment with FICOM and that the files were
very well-organized.
Mr. Michael Caira
[31]
Mr. Caira was an RCMP officer employed at the Vernon detachment until
2012 when he retired. He had known Mr. Kijowski since 2006 as a result of the
latters involvement as CEO of Crime Stoppers in Kamloops.
[32]
Mr. Caira described Mr. Kijowski as physically active, as very sharp
and quick and as having a very good memory.
[33]
Mr. Caira testified he visited Mr. Kijowski four to five times a year
since the Accident.
[34]
He said that before the Accident Mr. Kijowski was a happy person who
used to joke and who had a jovial, happy-go-lucky spirit; had a great memory;
was a good public speaker; and had a great wit. He testified he could walk and
move without difficulty.
[35]
Mr. Caira described Mr. Kijowskis work ethic as being methodical and
said he was a stoic person who lived by the police credo of taking a lickin
and keep on tickin.
[36]
Mr. Caira testified that since the Accident Mr. Kijowski has been having
difficulty with his mobility. His balance is unsteady when he walks, he has
difficulty focusing and is forgetful. He testified Mr. Kijowski in personality,
demeanor and on some mental level has changed. He is not the same person he
was before the Accident. Mr. Caira described him as noticeably different.
[37]
Mr. Caira testified following the Accident he had seen a steady decline
in Mr. Kijowskis physical and mental condition: he appeared stressed and would
miss some of the content in conversations.
[38]
In cross-examination, Mr. Caira agreed he had visited Mr. Kijowski about
four times a year prior to 2014, but only two times in 2014 and once to the
date of trial in 2015.
[39]
Mr. Caira agreed Mr. Kijowskis hearing problems did not appear as
significant if just the two of them were talking but he struggles if there
are four people in the conversation.
Ms. Stefanee Fowler
[40]
Ms. Fowler is the older of Mr. Kijowskis two step-daughters. She is 21
years old. Ms. Fowler has a young daughter who lives with Mr. and Ms. Kijowski
in their household.
[41]
Ms. Fowler described the activities the family engaged in prior to
the Accident as including hiking, boating on Okanagan and Shuswap Lakes and
family walks before dinner.
[42]
She described Mr. Kijowski as being an active person, doing maintenance
work around the house (painting, plumbing and general fix-up work) and
gardening and prior to the Accident he had no physical difficulties doing these
activities.
[43]
Ms. Fowler testified that since the Accident Mr. Kijowskis ability
to hear has declined she often has to speak loudly to him and his
concentration and memory, which were good before the Accident, have become
worse. She related several examples. She testified he repeatedly forgets things
(such as measurements he has recently taken when his is doing repairs about the
home) and asks her to remind him. She said he leaves household jobs undone
which he previously would have easily finished. She testified he tires easily,
complains of a sore back and becomes easily frustrated and irritable and this
causes conflict in the family.
[44]
Ms. Fowler thought her fathers memory and hearing have been getting
worse since the Accident.
[45]
She testified she has observed him suffering periods of dizziness if he
moves too quickly or from such activities as bending over to feed their dogs.
Ms. Albertine Kijowski
[46]
Ms. Kijowski testified she met the plaintiff at a Crime Stoppers
convention in the United States. She had two daughters by her previous husband
who had passed away.
[47]
Ms. Kijowski testified she was attracted to Mr. Kijowski because of his
physical activity and fitness level. She and her daughters moved to Kamloops in
the summer of 2007. The couple married in the fall of 2007 and moved to
Langley.
[48]
She testified that in the summer of 2007 she and Mr. Kijowski ran every
day, biked including cross-country biking, boated in the Shuswap area and
golfed. She said they continued those activities when they moved to Langley.
Ms. Kijowski herself has been very involved in coaching high school basketball,
a sport in which her daughters had been involved.
[49]
Ms. Kijowski is currently working at an independent living facility as a
first responder and works in the kitchen and as a housekeeper. She has and
continues to look for suitable work which fits her experience as a former
police officer.
[50]
Ms. Kijowski testified that prior to the Accident her husband had no
physical restrictions; he was very active; their lives were defined in good
measure by their mutual interest in physical activity; and they were very
physically active up to the Accident.
[51]
Ms. Kijowski testified that when Mr. Kijowski arrived home after the
Accident she knew there was something wrong. She wanted to take him to a
doctor or the hospital but he initially refused. She described him as a mans
man, being stoic as a result of his years in law enforcement.
[52]
She described that over the next few days he was grimacing, his wrist
was sore, he was stumbling and he would get up at night feeling dizzy.
[53]
Ms. Kijowski testified that since the Accident the incidents of Mr.
Kijowskis dizziness had become worse and more frequent. She related several
incidents in which he had experienced dizziness and had fallen to the ground. She
said she often has to steady him when they are out walking.
[54]
Ms. Kijowski testified she initially did not notice Mr. Kijowski had
hearing issues but that his hearing has worsened. She testified he can
generally hear in one-on-one conversation, but not well when more than one
person is conversing with him. She testified that in conversations with her
daughter, Amanda, he gets upset because he cannot hear her.
[55]
Ms. Kijowski testified her husbands memory is poor and she writes
sticky notes to remind him to do things. She testified while he was easy to get
along with prior to the Accident, he now becomes easily irritable. Little
things seem to bother him and the two have arguments as a result. She said he
has difficulty concentrating and when he returns home from work he appears
exhausted. She testified Mr. Kijowski worries about his job every day and
has broken into tears when he has explained his worries to her.
[56]
Ms. Kijowski testified their sex life was not there anymore.
[57]
Ms. Kijowski testified that since the Accident she has had to take over
the numerous household functions her husband used to do including the general
fixing of things, painting, pruning and mowing the lawn.
Ms. Jennifer Scott
[58]
Ms. Scotts examination for discovery concerning the nature of the Accident
was read into evidence at trial.
[59]
Ms. Scotts evidence was that at the time of the collision she was
looking backwards toward her son and did not see Mr. Kijowskis vehicle come
to a stop in front of her.
[60]
She said she would have been traveling at about 50 km/h at the time her
vehicle struck the plaintiffs vehicle. She did not have an opportunity to
brake and testified she heard a loud crash and that her vehicle stopped
abruptly upon impact with the plaintiffs vehicle.
Defendants Lay Witnesses
Mr. Marvin Neufeld
[61]
The defendants called Mr. Neufeld, Prosperas Senior Vice-President of
Risk.
[62]
Mr. Neufeld testified that on each of Mr. Kijowskis yearly employee
appraisals (Performance and Development Plans) since Mr. Kijowski commenced
employment in 2010 he had met expectations as an employee.
[63]
He testified it was fair to say he had no issues with Mr. Kijowskis
performance as an employee. When asked by defence counsel if Mr. Kijowski would
continue to be a valuable employee in the future he agreed he likely would but
added everyone has a shelf life and that at the present time he had no
evidence Mr. Kijowskis future with Prospera would be shortened.
[64]
In cross-examination, Mr. Neufeld agreed Mr. Kijowski was a stoic
person; he didnt like to talk about his private life and did not like to
bother Mr. Neufeld with issues. He agreed he dealt with Mr. Kijowski about an
hour a week in group meetings and that one-on-one meetings with him were
infrequent.
[65]
He testified employees fill out their own performance reviews and that an
employee either meet employment expectations or do not.
Plaintiffs Medical Witnesses
Dr. Neil Longridge
[66]
Dr. Longridge is a specialist in otolaryngology with a focus on hearing
loss, imbalance, dizziness and tinnitus. He provided a medical legal report
dated July 9, 2014 and a follow-up report dated September 2, 2014 and was
cross-examined at trial.
[67]
Dr. Longridge diagnosed Mr. Kijowski as having tinnitus (ringing in the
ears) more in the right ear than the left hearing loss, imbalance and
dizziness all which were probably caused by the Accident.
[68]
Dr. Longridge opined Mr. Kijowskis tinnitus, which prevents the
enjoyment of silence and can disturb concentration, was mild to moderate.
[69]
He said his reduction in hearing was a bilateral high tone loss,
slightly worse on the right. He noted Mr. Kijowski found it difficult to hear
when there was background noise and that he often had to ask people to repeat
themselves while at work or at home if there is background noise. Dr. Longridge
opined the reduction in hearing was significant and would not improve but was
not at a level which would affect his function.
[70]
Dr. Longridge tested Mr. Kijowski for the imbalance and dizziness he
experienced subsequent to the Accident. He said the two conditions had
different etiologies.
[71]
The episodes of imbalance were unpredictable. He found abnormalities
after administering a number of balance tests which including testing of the
gravity-detecting organs of the inner ear.
[72]
Dr. Longridge opined that:
This patient has objective
measured abnormalities on VOG [Video Oculography], CVEMP [Cervical Vestibular
Evoked Myogenic Potentials] and OVEMP [Ocular Vestibular Evoked Myogenic
Potentials]. In the absence of any other explanation, the accident is the
probable cause of these measured findings.
[73]
He then discussed Mr. Kijowskis limitations as follows:
Patients with episodes of
dizziness or imbalance are at risk. I specifically recommend that he avoids
activities which put him at hazard if he has an episode which would cause him
to fall. He should avoid being at height, up ladders or on scaffolding.
Changing light bulbs and curtains should be done with caution. He should not be
around dangerous equipment. From the recreational point of view he should avoid
which put him at hazard of falling such as ice skating and line skating where
he could injure himself. With respect to skiing, it is important that he avoids
skiing on icy surfaces where falling could result in an injury. It is probably
safe to ski on fresh powder snow where the speed of skiing is slower and the
fall is into soft material so that injury is highly unlikely. He should not
ride a bicycle in a situation where, should he fall, he could be injured by a
following vehicle. Any other sporting activity where a fall onto a hard surface
is likely to occur should be avoided. If he is going to undertake any activity
where this is a possible risk then he should wear appropriate protective
materials for the sport.
[74]
He concluded Mr. Kijowski has sustained a disturbance to his balance
system as a result of the Accident and opined that as he ages it is probable
that Mr. Kijowski will run into problems with balance and unsteadiness and
that there is an increased likelihood of fall and fracture and accordingly
osteoporosis management has to be optimized.
[75]
He opined that Mr. Kijowski is more vulnerable to vestibular damage in
the future and that his dizziness and imbalance will probably be present on a
long-term, permanent basis.
[76]
Dr. Longridge referred Mr. Kijowski to Ms. Lau, an audiologist, for
audio processing and hearing testing.
[77]
In his report of September 2, 2014, Dr. Longridge opined that while
vestibular physiotherapy may have benefits for the plaintiff by assisting with his
balance problems it was important such therapy occur within two years of an
injury or improvement would be slight and that if such therapy was done it
should be maintained with occasional supervision by a physiotherapist to ensure
the program remained optimal for his needs. Physiotherapy would not improve the
dizziness problem. In his December 18, 2014 follow-up report, Dr. Longridge
recommended Mr. Kijowski use a hearing aid to manage his tinnitus, hearing loss
and hyperacusis (reduced sound tolerance).
[78]
In cross-examination, Dr. Longridge testified it is very unlikely
Mr. Kijowskis dizziness would improve but agreed Mr. Kijowski is fully
functional in the sense he can work and drive his vehicle, the latter for the
foreseeable future. He agreed his hearing loss is mild to moderate in high
tones. He also agreed it would have been unreasonable for Mr. Kijowski to have
stopped treatments with Ms. Lau if he was receiving benefit from the
treatments.
Dr. Grant ONeill
[79]
Dr. ONeill is a chiropractor who had treated Mr. Kijowski since 2008.
[80]
Dr. ONeill prepared a medical legal report dated December 15, 2014 and
was cross-examined at trial.
[81]
Dr. ONeill described Mr. Kijowski as being in good health and as very
fit. Mr. Kijowski attended Dr. ONeill for occasional tune-ups for
minor self-limiting mechanical back pain but there were no ongoing back
issues.
[82]
Following the Accident, Mr. Kijowski attended Dr. ONeills office with the
main complaint of right chest pain but also complained of neck pain at the base
of the skull, back pain between his shoulder blades, inability to concentrate,
severe headaches, tinnitus, loss of balance, inability to sleep, facial pain in
both jaws, stomach upset and left wrist pain.
[83]
Dr. ONeill diagnosed Mr. Kijowski as having injury to the facet joints,
muscles and ligaments of the upper cervical spine and upper back as well as
currently experiencing cervical facet syndrome, cervicogenic headaches, chronic
myofascial pain and non-resolving vestibular symptoms.
[84]
Dr. ONeill opined that given the time since the Accident Mr. Kijowskis
symptoms have plateaued and that although there has been a mild improvement in
his symptoms he did not anticipate full recovery.
[85]
Dr. ONeill recommended post injury psychological assistance and opined
Mr. Kijowski may require assistance for heavier cleaning/yard work. He also
thought ongoing chiropractic spinal manipulation two or three times per month
would offer symptomatic relief to ongoing neck, back pain and headaches. The
cost of such treatment would be $1,200 to $1,800 per year. Such treatment would
assist in improving pain and mobility but would not return him to his pre-Accident
status.
[86]
In cross-examination, Dr. ONeill confirmed Mr. Kijowski had complained
about discomfort when running and walking in July 2009 and that he complained
of incidents of dizziness before the Accident in June 2008, July 2009 and
August 2011. In 2009 Dr. ONeill treated Mr. Kijowski for lower back ache from
prolonged sitting and in 2010 for right trapezius pain, again from sitting too
long. Dr. ONeill agreed that between March and December 2009 Mr. Kijowski
attended his office for nine treatments complaining of right gluteal muscle
pain and had visited his office at least once per month since that time.
[87]
Dr. ONeill noted Mr. Kijowski was in a previous motor vehicle accident
in 1995 and that he had had low back surgery prior to 2005 for a discectomy of
his L5-S1 disc.
[88]
Dr. ONeill thought there is room for mild improvement in Mr.
Kijowskis musculo-skeletal problems but testified he should be restricted to
light duties and sitting at his desk he should have frequent breaks. He
encouraged Mr. Kijowski to do as much as he can but that he should not push
through his pain.
[89]
In re-examination he testified the dizziness Mr. Kijowski experienced
prior to the Accident was different in nature and intensity and was from
different causes than those he experienced following the Accident.
Dr. Catherine Paramonoff
[90]
Dr. Paramonoff is a specialist in Physical Medicine and Rehabilitation
who saw Mr. Kijowski October 27, 2014 for the purposed of performing a medical
assessment and preparing a medical legal opinion dated December 12, 2014.
[91]
Dr. Paramonoff opined Mr. Kijowski sustained musculoligamentous injuries
of his neck and spine, post-Accident imbalance and deconditioning, intermittent
headaches, persistent left wrist symptoms, and dizziness, tinnitus and hearing
loss. She attributed some of his musculoligamentous injuries to an unmasking of
pre-existing degenerative change in his neck, at the base of his neck and his
upper back. Dr. Paramonoff opined that Mr. Kijowskis current difficulties with
focus and concentration are likely largely associated with the distracting
effect of tinnitus, mood symptoms, and residual pain symptoms
.
[92]
Dr. Paramonoff recommended Mr. Kijowski take a guided program with a
physiotherapist for some 12-18 sessions progressing to an independent exercise program
and that with such a program Mr. Kijowski would better be able to participate
in his pre-Accident activities. She noted that Mr. Kijowski would likely
continue to have flare-ups of pain and recommended adjunctive treatment on a
time-limited basis to help manage such flare-ups. She recommended six
treatments per year for the next two years.
[93]
Dr. Paramonoff also recommended Mr. Kijowski be referred to an
Occupational Therapist for one to two sessions to review his home and work
activates for strategies and equipment to help optimize his functioning and
noted he may also benefit from a referral to Psychology, for non-medicinal
pain management strategies for his symptoms.
[94]
Dr. Paramonoff opined that notwithstanding the length of time since the
Accident Mr. Kijowskis prognosis for moderate musculoskeletal symptom
improvement is positive but such improvement will require the implementation
and regular maintenance of the independent exercise program. She opined that
such a program would not completely eliminate the symptoms and that Mr.
Kijowski will have a residual baseline of symptoms (above the pre-MVA
baseline,
), due to the injuries sustained from the MVA.
[95]
In cross-examination, Dr. Paramonoff agreed that Mr. Kijowski had not
yet started the vestibular therapy recommended by Dr. Longridge. She agreed the
injuries to Mr. Kijowskis musculoskeletal system were in areas where he had
pre-existing degenerative changes shown in imaging taken before the Accident.
[96]
Dr. Paramonoff agreed Mr. Kijowski did not need assistance doing chores inside
the house but said he was less able to do outdoor activities.
Ms. Carol Lau
[97]
Ms. Lau is a Registered Audiologist, Speech language Pathologist and
Registered Hearing Instrument Practitioner. She prepared an audiological
assessment report dated December 8, 2014 and testified at trial. Ms. Lau saw
Mr. Kijowski for a Central Auditory Processing Disorder (CAPD) assessment
following a recommendation by Dr. Longridge.
[98]
Following the administration of a series of audiological tests, Ms. Lau
concluded Mr. Kijowski has a moderate sensory hearing loss in high frequencies
on both sides, tinnitus which is constantly present, mild hyperacusis resulting
in annoyance around loud environmental sounds, CAPD with weakness in processing
multiple inputs simultaneously resulting in difficulty perceiving speech in
adverse listening situations.
[99]
She drew the following implications for daily living for Mr. Kijowski:
·
The lack of control and inability to escape from the tinnitus
will result in feelings of annoyance, anger, frustration and upset.
·
It is also often associated with reduced tolerance and
irritability which will negatively impact Mr. Kijowskis relationship with
family and friends, work colleagues and acquaintances.
·
The tinnitus affects his ability to enjoy quiet, recreational
activities and general relaxation. It will also prevent him from hearing the
silence at will.
·
When the tinnitus is loud and intrusive, it can be distracting
and interfere with his ability to concentrate, focus, memorize and process.
·
All of these factors contribute to a reduced quality of life as a
result of tinnitus.
·
Mr. Kijowski will have difficulty understanding speech in
environments with ambient noise, reverberant rooms or where there is any other
competing signal such as other conversations or music. It will impact his
ability to work in such environments where accurate listening and concentration
is required.
·
There will be frequent mishearing and subsequent
misunderstandings due to inaccurate perceptions. This will be especially
noticeable when there is no visual support such as listening to distance
speakers, when the speaker is turned away, over the telephone and auditory
dialogue without written material. Extra effort will also need to be used when
listening to unfamiliar speakers, accented speech, or poor grammar/vocabulary.
·
Lengthy listening requirements will result in auditory fatigue or
overload. If a conversation or explanation continues for any length of time, Mr.
Kijowski will tend to tune out as his auditory system becomes saturated.
Retention of auditory information will be affected and Mr. Kijowski will need
to use written or electronic notes as reminders.
·
Complex or novel listening tasks will require a quiet listening
environments or supplementation with written material such as notes, pictures
and diagrams[].
[100] Ms. Lau
recommended binaural amplification for hearing loss. To treat his tinnitus,
Ms. Lau recommended informational, directive counselling and retraining
therapy over two to three years; binaral white noise/hearing aid combination
instruments to be worn daily over period two to three years; and a bedside
sound generator and pillow speaker to be used at night.
[101] Ms. Lau
also recommended a web-based auditory training program that her office would
monitor over a period of 14 weeks with follow-up to assist him overcome his
hearing deficiencies. She assessed treatment costs as follows:
Combination hearing | $6000 |
Combination remote control | $300 |
Annual hearing aid | $400 per year |
Bedside sound generator | $150 |
Pillow speaker | $30 |
CAPD auditory-training | $600 |
TOTAL | $7480 |
[102] In a
further report of December 12, 2014, Ms. Lau clarified that hearing loss,
tinnitus, hyperacusis and CAPD intermingle with each other, all having some
impact on the intake of auditory information and that the treatment of any one
of the conditions could not preclude the treatment of the other three: that is,
the conditions are interrelated.
[103] In cross-examination,
Ms. Lau agreed Mr. Kijowskis hearing loss impairment was mild and that he
could cope well in single speaker conversations. In addition, his hearing loss
related to sounds in higher frequency environments.
Ms. Laura Smith
[104] Ms. Smith,
an occupational therapist, prepared a cost of future care report based on her
review of the recommendations contained in the reports of Dr. Longridge
and Ms. Lau.
[105] Her report
outlined the following items and costs:
GOOD/SERVICE | BASE COST |
1. | $552.24 – $728.00/yr |
2. · · · |
$200.00 $35.00 – $95.00 $100.00 – $200.00 |
3. | $750.00/yr |
4. | $160.00 – $320.00/yr |
5. | $6,000.00 |
6. | $300.00 |
7. | $400.00/yr |
8. | $150.00 |
9. | $30.00 |
10. | $600.00 |
[106] In
cross-examination, Ms. Smith agreed she had not been to Mr. Kijowskis home or
his work in making her recommendations but that she had relied on the
recommendations of Dr. Longridge and Ms. Lau. She said the costs for home
equipment were based on her experience.
Ms. Valerie Reynolds
[107] Ms.
Reynolds is a trained vestibular physiotherapist. She saw Mr. Kijowski at the
request of a neurologist, Dr. Chahal, between April 2013 and July 2013 after
which they agreed that, as the exercises she recommended made his dizziness,
hearing and ringing in the ears worse, he should return to Dr. Chahal.
[108] Ms.
Reynolds saw him again in December 2014. She testified Mr. Kijowski told her at
that time the ringing in his ears had increased and become louder, particularly
in his right ear, that he was feeling pressure at the base of his skull which
made him dizzy, and that he was having difficulty with concentration when he
read.
[109] Mr.
Kijowski saw Ms. Reynolds for treatment once more in December, three times in
January and once in February 2015.
[110] She tested
him January 23 and found when testing his balance when his feet were half way
apart he needed to touch the walls to keep his balance. She testified he had
difficulty balancing on a bike when she saw him in mid-February.
[111] Ms.
Reynolds said Mr. Kijowski appeared motivated to do prescribed exercises and
wanted to return to doing workouts at the gym. Her plan was to work with him on
a gym program he could manage. She testified she also treated his neck and
back. Her fees were $60/visit for vestibular therapy and $75/visit for a
rehabilitation program.
The Defendants Medical Evidence
Dr. Richard Grosch
[112] Dr.
Grosch, a neurologist, was called by the defendants and cross-examined on his
medical legal opinion dated October 2, 2014. Dr. Grosch had conducted an
independent medical examination of Mr. Kijowski on September 23, 2014.
[113] Dr. Grosch
diagnosed Mr. Kijowski as suffering from posttraumatic chronic vestibulopathy
resulting in intermittent vertigo, tinnitus and hearing loss, the latter
affecting him particularly in noisy environments. He attributed the cause of
Mr. Kijowskis injuries to the sudden impact of the back of his head
against the headrest and flexion-extension displacement of his neck on impact
during the Accident.
[114] Dr. Grosch
saw no reason that Mr. Kijowski should not continue further vestibular
physiotherapy but questioned whether such therapy would improve his symptoms
because of the length of time the symptoms had persisted since the Accident.
[115]
Dr. Grosch noted:
[Mr. Kijowski] does experience persisting tinnitus, hearing
loss, and intermittent vertigo, which do interfere with day-to-day activities;
Future treatment
would include his
current medications [and] vestibular physiotherapy;
[116]
Dr. Grosch was of the view:
–
the tinnitus and hearing loss will persist;
–
the intermittent vertigo and imbalance may improve with time;
–
[Mr. Kijowskis] leisure activities have been curtailed;
–
there were no pre-existing medical problems which are relevant
to his employment duties and his ability to perform them in the future; and
–
Mr. Kijowski did pursue recommended treatments for his current condition
and has not been negligent in looking after his general health.
[117] I turn
next to consider the heads of damage and the amounts to be awarded thereunder.
Non-pecuniary Damages
The Plaintiffs Position
[118] The
plaintiff submits an appropriate award for non-pecuniary damages would be
$160,000. To support this award the plaintiff relies on Young v. Anderson,
2008 BCSC 1306 [Young]; Afonina v. Jansson, 2015 BCSC 10; Burdett
v. Eidse, 2010 BCSC 219, varied on other grounds, 2011 BCCA 191; Reynolds
v. M. Sanghera & Sons Trucking Ltd., 2014 BCSC 212, revd on other
grounds, 2015 BCCA 232.
[119] The
plaintiff places primary emphasis on Young where a male plaintiff, aged
56, was awarded $200,000 in non-pecuniary damages for a mild traumatic brain
injury which, amongst other injuries, included CAPD. The plaintiff says the
effect of the injuries on the plaintiff in Young is similar to the effect
of the injuries on Mr. Kijowski.
The Defendants Position
[120] The
defendants submit an appropriate award for non-pecuniary damages is $50,000.
The defendants refer to Kurucz v. Con, 2008 BCCA 125 [Kurucz];
Noh v. Verjee, 2008 BCSC 1508 [Noh]; Wright v. Dillon, 2009
BCSC 176 [Wright]; Dial v. Grewal, 2010 BCSC 759; Dutchak v.
Fowler, 2010 BCSC 128 [Dutchak]; and Wilkinson v. Whitlock,
2011 BCSC 1781 [Wilkinson].
[121] In Kurucz,
the Court of Appeal increased a trial judges award of $15,000 in
non-pecuniary damages and substituted an award of $42,000. The plaintiff had
sustained moderate flexion extension injuries to her cervical, thoracic, lumbar
and lumbosacral spine which resulted in symptoms of periodic dizziness and
anxiety.
[122] In Noh,
a 54-year-old plaintiff, who suffered soft tissue injuries to his neck,
shoulders and clavicle which adversely affected his daily activities but which
plateaued at approximately 90% of his pre-Accident condition and were described
by a specialist who saw him as fairly minor, was awarded $35,000.
[123] In Wright,
a 53-year-old plaintiff suffered central neck pain, constant tension headaches,
and the aggravation of a pre-existing depressive disorder exacerbated by her
injuries. The trial judge found there was a significant impact on her pre-Accident
active lifestyle and that there was a prognosis for eventual full recovery. He awarded
$40,000 as non-pecuniary damages.
[124] In Dial,
a 35-year-old plaintiff was awarded $50,000 for soft tissue injuries to her
neck and right shoulder, an aggravation of a pre-existing back condition,
headaches and dizziness. The plaintiffs dizziness reduced in frequency after
several months and she had not felt dizzy in the six months prior to trial. Associate
Chief Justice MacKenzie, as she then was, found the plaintiffs evidence to be vague
and inconsistent with respect to various matters and that she was a poor
historian.
[125] In Dutchak,
a plaintiff who suffered continuing soft tissue injury to her upper back,
shoulders and neck and back who was expected to have some improvement was
awarded $45,000 in non-pecuniary damages.
[126] In Wilkinson,
the plaintiff suffered mild to moderate soft tissue injury to her
lower back which was significantly painful and physically limiting for the
first four months after the accident and had remained painful since. It was
expected her condition would improve but she would not become symptom free. She
was awarded $40,000 in non-pecuniary damages.
Decision on Non-pecuniary Damages
[127] Each case
must be assessed individually depending on the nature of the injuries sustained
by the plaintiff and on an assessment of the non-exclusive list of factors set
out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46 [Stapley],
including the age of the plaintiff; the nature of the injury; the
severity and duration of pain; the extent of any resulting
disability; the extent of any emotional suffering and whether there
has been an impairment in quality of life.
[128] In my view
Mr. Kijowskis injuries are considerably more significant that those sustained
by the plaintiffs in the cases referred to by the defendants. As a result of
his injuries, Mr. Kijowskis life has been significantly altered in many
respects: recreationally, at work, and at home. He can no longer enjoy the
activities he did in the past and the prognosis for his improvement is guarded.
Dr. Longridge has opined Mr. Kijowskis dizziness and imbalance will be
permanent impairments and he will have to continue with vestibular therapy
indefinitely to improve his ability to function with these conditions or he
will likely relapse. As he ages, he will more prone to falling and injuring
himself. He has a hearing deficit as a result of damage to the cochlea which
likely can be improved with binaural amplification (hearing aids). Mr. Kijowski
continues to suffer from soft tissue injuries to his neck, mid and lower back
which will likely improve over time with treatment. His tinnitus and hearing
deficit have resulted in stress in his relationships at home. His ability to
concentrate and his energy is decreased and he worries about the security of
his job and the consequences that would have on his family.
[129] After considering
all the factors set out in Stapley I am of the view the appropriate
amount of non-pecuniary damages is $140,000.
Mitigation
[130] The defendants
argue the plaintiff has failed to mitigate his loss by not continuing with his
vestibular physical therapy program and exercises from July 2013 to December
2014.
[131]
As stated in Graham v. Rogers, 2001 BCCA 432, leave to appeal refd
[2001] SCCA No. 467, Madam Justice Rowles stated at para. 35:
Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the
onus of proof on that issue. Red Deer College v. Michaels (1975),
[1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil
Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89
D.L.R. (3d) 1, provide support for that proposition. In this case, the
appellant argues that the respondent did not meet the onus of proof by showing
or establishing that the appellant could reasonably have avoided his income or
employment losses.
[132] Given that
the defendants bear the onus of proof on this issue, I find the defendants have
failed to discharge that onus in view of the evidence of Dr. Grosch, the
neurologist retained by the defendants to conduct an independent medical
examination of the plaintiff.
[133] Dr. Grosch
was asked to address the issue of [i]f the patient has failed to pursue
recommended treatment which would have benefited the patient, please set out
particulars of such treatment in terms of modality and duration and the effect
such treatment would have likely had on the patients recovery. As noted,
Dr. Grosch replied the Mr. Kijowski did pursue recommended treatments and
had not been negligent in looking after his general health.
[134] Further,
based on my review of the whole of the evidence including that of Dr. Grosch,
I find the defendants have not discharged the onus of establishing Mr. Kijowski
unreasonably refused treatment which would have mitigated his injuries. Accordingly,
I dismiss the defendants submission I should reduce the plaintiffs
non-pecuniary damages on the basis he has failed to mitigate his loss.
Past Loss of Income Earning Capacity
[135] The
plaintiff claims damages for Mr. Kijowskis incapacity to work at a second job
between the date of the Accident and the trial.
[136] The
plaintiffs claim is based on the fact he worked part-time for Home Depot in
2008, earning some $3,400 that year and that given the familys tight financial
status he would have taken similar part-time work up to the date of trial. Ms.
Kijowski confirmed in her evidence that she and her husband had discussed him
taking a part-time position. Mr. Kijowski has been unable to take such a
position because of his lack of energy arising from the injuries sustained in
the Accident.
[137] In my view
the plaintiff has not established on the balance of probabilities that he would
have taken part-time work had the Accident not occurred. The evidence that he
would have taken part-time work is speculative at best. While Mr. Kijowski
did work part-time in 2008 he had not taken any steps to do so again prior to
the January 2011 Accident.
Loss of Future Income Earning Capacity
[138] The
plaintiff submits that as a result of the injuries sustained in the Accident his
future earning capacity has been impaired. The plaintiffs position is, given
the familys financial circumstances that he would likely have worked well into
his 70s. The plaintiff says that as a result of his injuries there is a
substantial risk he will not be able to do so.
[139] The
plaintiff seeks an award of $160,000 – $180,000 being an approximation of two
years earnings, as an award under this head of damage. The plaintiffs rely on Morlan
v. Barrett, 2012 BCCA 66; Athey v. Leonati, [1996] 3 S.C.R. 458, 140
D.L.R. (4th) 235; Perren v. Lalari, 2010 BCCA 140; Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144; Clemas v.
Gabrlik, 2013 BCSC 1412 [Clemas] and other authorities.
[140] The
defendants say there is no uncontradicted medical evidence of partial
permanent physical disability which could have an effect on [Mr. Kijowskis]
capacity to work, and on his employability: Pallos v. Insurance Corp. of
British Columbia, [1995] 3 W.W.R. 728 at para. 41, 100 B.C.L.R. (2d)
260 (C.A.). The defendants also rely on Perren; Steward v. Berezan,
2007 BCCA 150; Fontaine v. Van Kampen, 2013 BCSC 1702; Kim v. Morier,
2014 BCCA 63; and Graydon v. Harris, 2014 BCCA 412. The defendants say
Mr. Kijowski has not established the threshold test of proving there is a
real and substantial possibility that future earnings will be less as a
result of the Accident.
[141]
In Clemas, Mr. Justice Skolrood summarized the applicable
principles underlying an award for loss of future income at paras. 168-171
[168] Turning to the claim for loss of future earning
capacity, the principles governing an assessment of such a claim are well
described by Mr. Justice Voith in Brewster v. Li, 2013 BCSC 774 at para
142:
[142] The
legal framework for the assessment of the plaintiff’s future wage loss claim
has been described numerous times. The decision of Reilly v. Lynn, 2003
BCCA 49, 10 B.C.L.R. (4th) 16 contains a useful summary of some of the
principles and approaches that are to be used when assessing future earning
capacity:
[100] An award for
loss of earning capacity presents particular difficulties. As Dickson J. (as he
then was) said, in Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229 at 251:
We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be made:
The Queen v. Jennings, supra. A capital asset has been
lost: what was its value?
[101] The relevant
principles may be briefly summarized. The standard of proof in relation to
future events is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his
injured condition: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall
fairness and reasonableness of the award must be considered: Rosvold v.
Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the t ask
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v.
Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:
First, in many respects, these
contingencies implicitly are already contained in an assessment of the
projected average level of earnings of the injured person, for one must assume
that this figure is a projection with respect to the real world of work,
vicissitudes and all. Second, not all contingencies are adverse … Finally, in
modern society there are many public and private schemes which cushion the
individual against adverse contingencies. Clearly, the percentage deduction
which is proper will depend on the facts of the individual case, particularly
the nature of the plaintiff’s occupation, but generally it will be small[.][Underlining
added in Reilly v. Lynn.]
[169] In Morgan v. Galbraith, 2013 BCCA 305, the Court
of Appeal, citing its earlier decision in Perren v. Lalari, 2010 BCCA
140, described the approach to be taken by the trial judge when assessing a claim
for loss of future earning capacity. Madam Justice Garson stated at para.
53:
in Perren, this Court held
that a trial judge must first address the question of whether the
plaintiff had proven a real and substantial possibility that his earning capacity
had been impaired. If the plaintiff discharges that burden of proof, then the
judge must turn to the assessment of damages. The assessment may be based on an
earnings approach
or the capital asset approach[.]
[170] The earnings approach is generally appropriate where
the plaintiff has some earnings history and where the court can reasonably
estimate what the likely future earning capacity will be. This approach
typically involves an assessment of the plaintiffs estimated annual income
loss multiplied by the remaining years of work and then discounted to reflect
current value, or alternatively, awarding the plaintiffs entire annual income
for a year or two: Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.); Gilbert v. Bottle, 2011 BCSC 1389 at
para. 233. While there is a more mathematical component to this approach,
the assessment of damages is a matter of judgment not mere calculation.
[171] The capital asset approach,
which is typically used in cases in which the plaintiff has no clear earnings
history, involves consideration of a number of factors such as whether the
plaintiff: i) has been rendered less capable overall of earning income
from all types of employment; ii) is less marketable or attractive as a
potential employee; iii) has lost the ability to take advantage of all job
opportunities that might otherwise have been open; and iv) is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Gilbert v. Bottle,
2011 BCSC 1389.
[142] The first
question to be addressed is whether the plaintiff has established a real and
substantial possibility of loss of income in the future.
[143] Mr.
Kijowski was 63 years old at the time of trial. The evidence demonstrated he
has, throughout his working life, maintained a strong work ethic. Given his
work ethic, he was held in reasonable regard by his employer and there were no
obstacles to his continued employment. He was in reasonably good physical health
and was sharp, well-organized and alert mentally prior to the Accident. Given
the financial circumstances of the family (particularly the familys existing
debt load and likely upcoming debt load as they are financing their younger
daughters attendance at college) as well as the factors listed above, I find
as a fact that Mr. Kijowski would likely have worked well into his 70s if not
to age 75.
[144] I find the
plaintiff has satisfied the tests set out in Brown v. Golaiy under which
the capital asset approach to lost earning capacity is to be applied. While Mr. Neufeld
agreed Mr. Kijowski was meeting the expectations of his position and there was
no present concern with his performance, his evidence was clear that every
employee had a shelf life. The one concern Mr. Neufeld had expressed about
Mr. Kijowski is that he had not taken the initiative on a recent matter on
which he was expected to take the lead.
[145] The
evidence is that Mr. Kijowski is exhausted most evenings when he returns home
from work, that when he does bring home work he has difficulty concentrating on
it and generally does not do it, that he arrives at work early to give matters
under his responsibility more attention, that he does so because he is worried
he will lose his job and that his memory is poor. Those who testified on his
behalf were unanimous in their view Mr. Kijowskis memory and concentration,
which had been good prior to the Accident, had declined over the last several
years.
[146] In my view
these factors, all the result of the Accident, as well as the difficulties he
has with hearing and balance will very likely get worse as he ages and will shorten
his working life. They must be taken into account when assessing Mr. Kijowskis
loss of future earning capacity. I find Mr. Kijowski, on a more likely than
not basis, will be forced to retire at an earlier age than he otherwise would
have retired. His prospects for employment elsewhere are, in my assessment, poor.
[147] The
primary positive contingencies are that the vestibular and physiotherapy
sessions will prolong Mr. Kijowskis working life.
[148] In my view
the appropriate amount to award the plaintiff for loss of future earning
capacity is $170,000 or roughly two years of his current earnings.
Cost of Future Care
[149] The plaintiff
claims the following costs for Mr. Kijowskis future care. Some of the items
are agreed to by the defendants.
Good/Service | Base Cost | Frequency/ Replacement Time | Calculation/Amount |
Medications (osteoporosis | $552.24 – $728.00 | Yearly | Averaged to $640. |
Equipment – Bath grab rail | $200 | Replace Twice | Initial cost $200 + 2 |
Bath/shower chair | $35 – $95 | Replace every 5 years | Averaged cost to $65. |
Stair rail (home has a |
|
|
|
Household Maintenance | $750 | Yearly | $750 x 16,575/1,000 = $12,430 |
Vestibular Therapy | $160 – $320 | Yearly | $300 x 16,575/1,000 = $4,972 |
Hearing Aid with noise | $6,000 | Between 5 and 7 years | $6,000 replace every 6 years The calculation of |
Remote control and | $300 | None | $300 |
Hearing aid batteries and | $400 | Yearly | $400 x 16,575/1000 = $6,630 |
Bedside sound generator | $150 | None | $150 |
Pillow speaker | $30 | None | $30 |
CAPD auditory training | $600 | None | $600 |
Active physiotherapy | $75 | None | $75 x 15 = $1,125 |
TOTAL |
|
| $56,827 |
[150] The
defendants say there is no medical evidence before this Court to support an
award the plaintiff requires medication; the plaintiff has hand rails in his
home and would require them in any event as he ages; he has not installed
shower seats or bath benches or purchased any of the hearing equipment recommended
although they were recommended months ago; and there has been little
improvement from the vestibular therapy Mr. Kijowski has done to date.
[151] The defendants
also submit costs of household maintenance and yard care should only be for one
year as Mr. Kijowski would likely have required assistance with this work in
any event when he reached age 65.
[152] The
defendants submit $8,465 is a reasonable amount to award as the cost of future
care.
[153] Dr.
Longridge endorsed vestibular therapy with ongoing supervision by a
physiotherapist (Report dated December 18, 2014). Dr. ONeill supported
Mr. Kijowski taking ongoing spinal manipulation which relieved neck and
back pain and stiffness. Dr. Paramonoff recommended Mr. Kijowski participate in
an exercise program supervised by a physiotherapist for strengthening and
conditioning to address his musculoskeletal symptoms. She did not recommend ongoing
medications beyond over-the-counter medication for flare-ups of pain. In my
view the above treatments will likely prolong Mr. Kijowskis ability to
continue in productive employment.
[154] Mr.
Kijowski has established a proper claim for yard care assistance given the
restrictions placed on his activities by Dr. Longridge. I am of the view he has
also established a proper claim for a shower chair. There is no cost proposed
for a stair rail as the home already has one. I also accept his claim for the
costs for hearing aids and associated equipment as recommended by Ms. Lau. I discount
his claim for replacements of the grab rail as well as the medications which,
as noted above, are not particularly helpful for Mr. Kijowskis current
condition.
[155] Accordingly,
I award the plaintiff $45,819 for the cost of future care. This amount is the
amount set out in the above table less medications and the bathroom grab bar
replacements. The amounts reflect the present value of the cost as provided by
Mr. Darren Benning of Peta Consultants Ltd.
Special Damages
[156] The
plaintiff claims $5,129.24 as special damages. The list of special damages
included $2,205 for chiropractic treatments with Dr. ONeill; $1,070 for the
cost of physiotherapy with Langley Physiotherapy and reimbursement for mileage
to travel to and from various medical and health care treatment facilities.
[157] I find Mr.
Kijowski in entitled to special damages of $5,129.24 to reimburse him for
reasonable and proper expenditures incurred as a result of injuries sustained
in the Accident.
Summary
[158] In summary,
I have concluded Mr. Kijowski is entitled to damages as follows:
Non-pecuniary | $140,000 |
Past Loss | $0 |
Loss of | $170,000 |
Cost of | $45,819 |
Special | $5,129.24 |
Total: | $360,948.24 |
Costs
[159]
Unless there are matters which counsel wish to draw to my attention
Mr. Kijowski is entitled to his costs of this action.
Greyell
J.