Constance Lynn Fournier Plaintiff v. Stevenson Bros. Warehousing Inc.,, 2003 BCSC 448

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fournier v. Stevenson Bros. Warehousing Inc., 2003 BCSC 448 Date: 20030326 Docket: S059362 Registry: Vancouver Between: Constance Lynn Fournier Plaintiff And Stevenson Bros. Warehousing Inc., Gold Key Pontiac Buick

(1984) Ltd. and Janice Nadine Stevenson and Denise Nicole Stevenson, Administratrices of the Estate of Richard William Stevenson, Deceased Defendants And: Insurance Corporation of British Columbia Third Party Before: The Honourable Mr. Justice Bauman Reasons for Judgment Counsel for the Plaintiff R. F. Hungerford and T. Martin Counsel for the Third Party J. L. Lindsay Date and Place of Trial/Hearing: 2-6 and 9-13 December 2002 New Westminster, B.C. Table of Contents Paragraph Range I. Overview [ 1 ]-[7] II. The Plaintiff Before the Accident [8]-[28] III. The Plaintiff After the Accident [29]-[67] IV. Causation [68]-[72] V. Heads of Loss [73]-[147] (

i) Non-Pecuniary Damages [73]-[84] (ii) Loss of Past Income [85]-[89] (iii)Loss of Future Earning Capacity [90]-[99] (iv) Cost of Future Care [100]-[143]

(

a) One-to-One Rehabilitation Support [113]-[121] (

b) Psychological Counselling [122] (

c) Physiotherapy [123] (

d) Occupational Therapy/Rehabilitation Case Management [124]-[125] (

e) Avocational Consultation [126]-[128] (

f) Pharmaceutical Expenses [129] (

g) Interior Home Maintenance [130]-[131] (

h) Financial Management [132] (

i) Speech Therapy [133]-[140] (

j) Computer Assistant and BCAA [141]-[143] (

v) Special Damages [144]-[147] VI

Summary [148]-[150] I. Overview [1] Constance Lynn Fournier was seriously injured in a single vehicle accident on 17 May 1999. The collision took the life of Ms. Fournier's partner, Richard William Stevenson. [ 2 ] The plaintiff has discontinued the action against the defendant, Gold Key Pontiac Buick

(1984) Ltd. [ 3 ] The defendants Stevenson Bros. Warehousing Inc. and the Estate of Richard William Stevenson (the "Stevenson Defendants") have not defended the proceeding. [ 4 ] The third party, Insurance Corporation of British Columbia, has denied liability to indemnify the Stevenson Defendants and has been added to, and defends, this proceeding pursuant to s. 21 of the Insurance (Motor Vehicle) Act , R.S.B.C. 1996, c. 231 . [ 5 ] Liability has been admitted by the Stevenson Defendants and the third party. [ 6 ] I will detail Ms.

Fournier's injuries below, but I note here that the most serious of them is a traumatic brain injury which has permanently affected Ms. Fournier. [ 7 ] The quantum of Ms. Fournier's damages is the central issue before me. In particular dispute are damages for loss of future earning capacity and the cost of future care. II. The Plaintiff Before the Accident [ 8 ] Ms. Fournier was 54 years of age in May 1999. She lived with Mr. Stevenson in a common law relationship in White Rock, British Columbia. [ 9 ] Ms.

Fournier was one of 10 siblings raised in Windsor, Ontario. [ 10 ] She attended high school until part way through grade 11. She left school and then moved to British Columbia following the death of one of her brothers and at a time of crisis in her family. [ 11 ] In British Columbia, Ms. Fournier trained and worked as a hairdresser for approximately one year. She left that profession because the chemicals in use bothered her hands. [ 12 ] Ms. Fournier married Paul Harraway in 1968. The couple have three sons, Matthew, Colin and Kevin, born between 1969 and 1972.

Matthew and Colin both testified at trial. [ 13 ] The family lived for a time in Prince Rupert, where Ms. Fournier worked in the bank and later for a large pulp mill. Ms. Fournier continued to work after her children were born. She found work outside the home very fulfilling. [ 14 ] This is a reflection of Ms. Fournier's strong work ethic throughout her adult life. [ 15 ] The family moved to Mackenzie, British Columbia in 1977 where they remained until they moved to Vancouver in 1988. [ 16 ] In Mackenzie, Ms. Fournier worked for two large forest companies in accounting and data processing.

She took some courses towards a CGA designation, but quit the program because of time demands of raising three small children. These duties also led to her working a shorter day with the forest companies, so that she could be home for the children after 3:00 p.m. [ 17 ] I am told in evidence that from 1981 to 1991, Ms. Fournier took many work-related courses to upgrade her skills and to improve her employment prospects. These courses centred on accounting, payroll and business management. [ 18 ] In 1988, in Vancouver, Ms. Fournier began work with Flexpak.

She started in reception and worked her way up in the company. In 1991, Ms. Fournier took a second job. In addition to working full-time at Flexpak, she worked a number of hours each week at Overwaitea. She said in evidence that she enjoyed the social interaction of the workplace and found the extra work relaxing.

[ 19 ] Ms. Fournier and Paul Harraway divorced in 1991. By all accounts, however, they have remained close friends and Mr. Harraway was extremely attentive and helpful to Ms. Fournier in the immediate aftermath of the accident. [ 20 ] By 1993, Ms. Fournier was looking for new challenges and she took a job with Stewart Walker Plastics which was then in the process of setting up a new office and warehouse in Vancouver. Ms. Fournier took on increasingly greater responsibilities with Stewart Walker and she soon became, effectively, if not formally, the office manager for the operation.

Her son Matthew said that "she ran the place". [ 21 ] Ms. Fournier's salary rose to approximately $44,000 per year. By 1998, however, new management was in place at Stewart Walker. Ms. Fournier lost her assistant to downsizing. As well, she experienced what she characterized as harassment from a co-worker. She did not feel that her management responded appropriately and she left the company. [ 22 ] Ms. Fournier worked for a time for Mr. Stevenson after leaving Stewart Walker and she looked for new employment. [ 23 ] Ms. Fournier was offered a job at "Delta Play" as a Financial Assistant earning $32,000 per year.

She was to start that job on 18 May 1999, the day after the accident. [ 24 ] Coincidentally, on the very morning of the accident, Ms. Fournier had an interview for a slightly better job at Brookfield LePage Johnson Controls ("Brookfield"). [ 25 ] A representative of that company gave evidence at trial. She stated that Brookfield was going to offer Ms. Fournier a position with the company. [ 26 ] Ms. Fournier's life with Mr. Stevenson was apparently ideal. The two enjoyed travelling, entertaining, gardening and cooking. [ 27 ] We have then, in Ms.

Fournier before the accident, a healthy, active woman who was very motivated to work and to improve herself. Ms. Fournier was obviously a strong and stable person, who survived the termination of a long term marriage on amicable terms; who raised three loyal sons (on the evidence they are all very well educated and professionally situated).

We have, finally, a person in an apparently secure relationship, who had suffered an employment set back (at Stewart Walker) but who, nevertheless, in a competitive employment scene and at the age of 54, impressed not one, but two employers sufficiently for them to offer her work. [ 28 ] Tragically, the motor vehicle accident on 17 May 1999 changed all that. III. The Plaintiff After the Accident [ 29 ] On 17 May 1999, Mr. Stevenson and Ms. Fournier were proceeding southbound on Highway 17. Ms. Fournier was in the right front seat of the Pontiac Trans Am.

She was restrained by a lap and shoulder belt. [ 30 ] On the overpass at Highway 99, Mr. Stevenson lost control of the vehicle. It straddled a concrete barrier and struck a lamp post. The impact was so severe that the roof of the vehicle caved in completely. Mr. Stevenson died at the scene. Ms. Fournier was taken to hospital with serious injuries. [ 31 ] Various medical experts have provided reports and gave evidence at trial. The principal medical experts include: (

i) For the plaintiff: ► Dr. L. W. Krywaniuk, an expert in clinical and neuropsychology; ► Dr. R. J. Ancill, a Psychiatrist; and ► Dr. H. A. Anton, a specialist in physical medicine and rehabilitation. (ii) For the third party: ► Dr. B. B. Tessler, a neurologist; and ► Dr. R. J. O'Shaughnessy, Psychiatrist. [ 32 ] There is no significant dispute between the plaintiff's and the defendants' experts on the nature and extent of Ms.

Fournier's injuries and her prognosis. [ 33 ] I accept the evidence of the plaintiff's experts which I relate in the following paragraphs and only qualify that acceptance where I hereafter expressly note. [ 34 ] Dr. Krywaniuk has reviewed and summarized the records from the plaintiff's stay at Vancouver General Hospital ("VGH"). I note these portions of Dr. Krywaniuk's report of 18 July 2002: …

The records from VGH noted that Ms. Fournier had fractures at the C1, C2 and T4 level. The neurological chart indicates that her Glasgow Coma Scale was normal on May 18. When she arrived on the ward from Emergency, she was described in the Nurses' Notes as being drowsy but oriented. She complained of headache and there were indications that she had been nauseous throughout. She also complained of chest pain and having difficulty breathing. Ms. Fournier was described as being anxious and it was noted that she continued to be nauseous.

She still seemed confused or disoriented on May 20, as she was talking about a dog that died four years ago as though it were still alive. She continued to be confused and to speak inappropriately. Her son was concerned about her living arrangements after discharge. At times she would become disoriented and complained of continuous headache. She continued to be drowsy but rousable. Ms. Fournier indicated that she did not feel mentally or physically able to attend her partner's funeral and was still having headaches as of May 24. The History Sheet from the day after admission indicated that Ms.

Fournier sustained a mild head injury with subarachnoid hemorrhage along with dental, chest and spinal injuries. Confusion was noted throughout her stay and it was noted that she was still not appropriate on May 20. On May 21, she was noted to be amnestic and to have significant cognitive impairment. On May 22, her mental status secondary to her head injury was felt to be the main limiting factor and it precluded safe discharge. The following day, she remained confused and non-compliant by trying to remove her brace. Within the next two days, she became much better and was alert and oriented.

She appeared to have insight at that time. However, she continued to have headaches and dizziness. It was felt that she would not need formal psychiatric follow-up after discharge, which was on May 28, but she was to have home care nursing. … [ 35 ] After discharge from VGH, Ms. Fournier lived for a brief period at the home which she shared with Mr. Stevenson. However, she was soon required to move from there. She moved to Chilliwack and stayed with her elderly mother until she herself moved into an intermediate care home. Since then, Ms.

Fournier has resided in a very small one room apartment in Chilliwack. [ 36 ] Ms. Fournier has been assisted in her convalescence by her sons and by Paul Harraway. However, none of them live in the Chilliwack area and, indeed, two of her sons will likely soon move to the United States and the third one lives with his family outside of Prince George. [ 37 ] Ms. Fournier has also been assisted by a team of health care professionals. These include her family doctors, Dr. Anton, Dr. Devonshire, various occupational therapists, Dr.

Ancill, a physiotherapist, a psychologist, a physical trainer and a speech therapist. [ 38 ] She has also been assisted by a private case manager, John Simpson, who was not compensated by ICBC. The disbursement incurred by the plaintiff for his services is a disputed item of special damages. [ 39 ] I will turn to the expert evidence shortly, but I would first summarize the anecdotal evidence of Ms.

Fournier's sons, Matthew and Colin, and that of Paul Harraway. [ 40 ] They all describe the plaintiff as a changed person, lacking in confidence, uncomfortable in any size of crowd, having low self-esteem, and being very forgetful. Ms. Fournier has trouble following simple driving directions, making or counting change; she has difficulty finding words and loses her train of thought. She engages in odd conduct while shopping. For example, on impulse she once bought 70 pounds of blueberries and on another occasion 20 or so sets of towels. [ 41 ] These witnesses say that where once Ms.

Fournier was active, outgoing, ambitious, and decisive, she is now fragile, vulnerable and unable, they fear, to properly manage day-to-day living on her own. [ 42 ] I turn to the expert medical evidence. [ 43 ] Dr. Krywaniuk conducted a neurological assessment of Ms. Fournier in the summer of 2002. [ 44 ] His description of how Ms. Fournier first presented before him mirrors my impression of Ms. Fournier as she gave evidence at trial: … For the current assessment, Ms. Fournier presented as an average-sized 57-year-old woman.

Attention and concentration appeared adequate and she was able to work diligently and sustain her effort throughout the assessment. However, it did appear that she became fatigued as the assessment proceeded. There are also times when she appeared to get off track and required redirection. She also was ponderous in her explanations and required redirection. There were noted to be significant pauses in her explanations and it appeared that she had difficulty organizing her verbal thoughts and responses. Language showed normal structures although her speech could be hesitant and she spoke somewhat slowly.

There were word-finding difficulties and her responses tended to ramble. Presenting intellectual skills were normal. Her comments and responses suggested that she previously had a confident manner and saw herself as a bright and capable individual. In providing her responses, she sometimes did not answer questions because she would divert herself onto different topics. On occasion, Ms. Fournier referred to a notebook that she was carrying. From an emotional perspective, she presented with a pleasant and cooperative manner that was appropriate to the situation. She showed a normal range of affect

although her manner was quiet and subdued. … [ 45 ] Dr. Krywaniuk noted that Ms. Fournier underwent a neuropsychological assessment in the fall of 2000 and that her intellectual abilities were then stated to be low, falling within the borderline to low average range. [ 46 ] Dr. Krywaniuk then turns to the assessment of 2002: … The current assessment reveals intellectual abilities within the average range, which is a substantial improvement from the previous assessment. Verbal abilities are mildly weaker than nonverbal skills, which is in the opposite direction to what it was before.

This suggests that nonverbal abilities have recovered more than verbal skills but it also is consistent with the initial problems she was having with verbal functioning. Verbal memory is the [ sic ] deficient across a time delay, indicating that she does not retain verbal information very well. This is consistent with her self-report. She has trouble processing information quickly, although this is somewhat variable, and she also has problems with complex attention. Other neuropsychological testing indicates a moderate level of impairment.

This includes poor cognitive flexibility, a weak sense of spatial localization and impaired auditory information processing. Motor speed was impaired, possibly due to peripheral factors. Personality testing revealed very high levels of emotional maladjustment, to the extent that psychological factors probably contribute quite strongly to the overall symptom pattern and may also be involved in the neuropsychological profile. She is probably depressed and is highly anxious. Grief may still be unresolved.

She tends to focus on her symptoms and may be demonstrating a "cry for help" because of her despondency and feeling that the future does not have much to offer. … [ 47 ] Dr. Krywaniuk concludes with these observations: … 16. The current assessment reveals IQ levels within the average range and this represents a substantial improvement over the previous scores, especially in the nonverbal area, where her score is now in the upper half of the average range. 17. The above gains probably represent a recovery from her head injury and psychological maladjustment. 18. Ms.

Fournier continues to show difficulties in the verbal area, although these are probably not as pronounced as they were before. Although intellectual levels are now in the lower part of the average range, this probably represents reduced cognitive efficiency in this area due to her accident and traumatic brain injury. 19. Memory for verbal information across a time delay continues to be significantly weak. 20. Other neuropsychological testing reveals reduced cognitive flexibility, weak tactual spatial localization and impaired auditory processing of information.

This is consistent with background information, her self-report and the previous assessment. 21. Motor functioning is less than optimal, especially for the left-hand, although this may be due to peripheral factors. 22. Overall, Ms. Fournier continues to show impairment associated with a traumatic brain injury at mild to moderate levels. 23. Personality testing reveals a significant level of maladjustment, probably reflecting a reaction to her accident, the death of her partner and the slowness of her recovery. She is highly focused on her symptoms and may be displaying a "cry for help". Her maladjustment is

significant enough that it probably contributes to her overall symptom pattern and perhaps her neuropsychological functioning. 24. Ms. Fournier is now more than three years post-injury and any deficits of a neuropsychological nature that she is currently demonstrating are likely to be permanent. 25. Psychological testing indicates that she continues to be depressed and anxious although she reports that she is benefiting from counselling. It appears to me that grief is still a factor, because she has a perception of a limited future for herself. Some of her difficulties are likely to be psychogenic in nature. 26.

She is at risk for developing a pain disorder, probably associated with psychological and organic factors. She does not have full insight into her problems and tends to think about them in a concrete manner. 27. It is likely that the combined emotional, physical and neuropsychological factors have had and will continue to have a highly significant impact on Ms. Fournier's work and personal life. Currently, she is socially introverted to the point that she is fearful of social engagement. 28. At this point, the overall results suggest that Ms.

Fournier is still not ready to return to employment. … [ 48 ] In his report of 19 August 2002, Dr. Krywaniuk discusses Ms. Fournier's employability. His comments assist, as well, in judging the extent to which Ms. Fournier will be able to live independently: … Although any one of the above factors on its own may not be completely debilitating, in combination they are likely to have a much more significant effect.

From a strictly neuropsychological point of view, her deficits are mild or perhaps moderate but, in combination with her psychological and physical difficulties they will take on much more significance as she will find it difficult to solve problems, retain information that she learns and otherwise function in a competitive environment or training program. The effects of these difficulties, overall, would probably be more evident through vocational counselling and assessment, when the specifics [ sic ] requirements of various jobs, careers or training programs are considered.

I anticipate that she will have significant limitations from this perspective and that her rehabilitation will still take a considerable amount of time, which will further reduce her prospects for employability, especially if training is required. … [ 49 ] Dr. Ancill has been Ms. Fournier's treating psychiatrist since February 2000. He has seen her on 27 occasions. [ 50 ] Dr. Ancill offers these conclusions in his report of 13 October 2002: 1. It is my opinion that Connie Fournier suffers from a Post-Concussion Syndrome, Persistent Type .

This directly results from a traumatic brain injury, of moderate severity, sustained in the MVA of the 17th of May 1999. It is unlikely that she will have further significant spontaneous improvement, almost 41 months having elapsed since the accident. Furthermore, being female and being aged 54 at the time of the MVA are associated with a poorer outcome. 2. It is also my opinion that Ms. Fournier suffers from a chronic Major Depression which has not responded to treatment, to date, mainly because of her intolerance to antidepressants.

However, even with successful treatment, she will likely remain vulnerable to relapses lifelong of the depression due to the biological nature of the injury. It is my opinion that the emergence of her psychiatric symptoms is directly and causally-related to the 1999 accident. There was no prior psychiatric history 3. Further, it is my opinion that her post-trauma headaches and musculoskeletal injuries have resulted in her also suffering from a Pain Disorder with Medical and Psychological Factors: Chronic Type .

4. Given her ongoing symptoms and functional impairments, it remains my opinion that Ms. Fournier will be unable to sustain any form of competitive employment. Further, it is also my opinion that she will continue to suffer significant impairment of her social and family life. [Emphasis in original] [ 51 ] Dr. Ancill placed Ms. Fournier on the drug Topamax, which he characterized as a "mood stabilizing anti-seizure agent with anti-irritability properties. It has also be found to be helpful in some patient [ sic ] with severe headaches". [ 52 ] The third party filed and relied upon the expert report of Dr.

O'Shaughnessy dated 22 July 2002. [ 53 ] Dr. O'Shaughnessy criticized Dr. Ancill's prescription of Topamax saying that that prescription was "difficult to understand". [ 54 ] Dr. O'Shaughnessy continued: … In addition, Dr. Ancil [ sic ] has prescribed Topamax for reasons that are not at all clear. Topamax is a GABA agonist that has some role to play in the treatment of Bipolar Disorder. It is not indicated in head injuries and certainly I cannot understand the rationale for why he would prescribe it, especially on the first visit with a new patient.

Topamax is particularly of concern because of its side effect profile including confusion, sedation, fatigue, headache, and dizziness as well as difficulties in verbal processing. Given the lack of a clinical indication for this drug and its side effect profile that mimics many of the symptoms described currently by Ms. Fournier, it would certainly be appropriate to discontinue Topamax. I would also recommend treatment with antidepressant medication on a more aggressive basis, as previously noted. … [ 55 ] Dr. O'Shaughnessy did not give evidence at trial.

He was under subpoena but was apparently involved in another trial. [ 56 ] Both counsel asked me to accept that, if called, Dr. O'Shaughnessy would have indicated that treatment of Ms. Fournier for her depression may improve her function from present levels, but that she will never fully recover. [ 57 ] I am also asked to accept Dr. O'Shaughnessy's view that the plaintiff's present symptoms have been caused by the combination of injuries arising out of the accident. [ 58 ] Dr. Tessler, a neurologist, also conducted an independent medical examination of Ms. Fournier. [ 59 ] His report is dated 4 December 2001.

His conclusion mirrors the essential findings of the other medical experts: … 3. Traumatic brain injury of moderate degree as judged by an undetermined period of loss of consciousness, a short period of retrograde amnesia, prolonged period of post traumatic amnesia. The exact duration of the post traumatic amnesia can't be determined because of medical interventions but the patient was documented to have been confused, disoriented in excess of what would have been expected from the medication that she was administered.

The brain injury was accompanied by a contusion (bruising) and blood within the sulci (surface spaces in the brain folds) and small hemorrhage noted in the right trigone. As sequelae to the injury the patient had mild memory impairment, cognitive impairment and emotional changes with depression, problems with insomnia, fatigue and anxiety. There is reduction in fluency of her speech. She speaks in a rather slow, methodical manner. The patient has had significant depression which is in part related to disruption of her satisfying life.

The patient has made good strides with regard to improvement but it is now over 2 years since the MVA and it is likely that she will have a permanent partial disability. The patient is not capable of being gainfully employed except at the lowest level entry job. I don't think she is emotionally equipped to deal with changes in her life although some further minor improvements may occur with adaptation and acceptance of her limitations. Hopefully with the further passage of time and reduction in her medications there may be some further improvement in her mentation.

… [Emphasis in original] [ 60 ] A vocational assessment of Ms. Fournier was undertaken by Derek M. Nordin. His report is dated 17 September 2002 and he testified at trial. [ 61 ] On the Raven's Standard Progressive Matrices which measure non-verbal intellectual functioning, Ms. Fournier placed in the "intellectually impaired" level of functioning, but Mr. Nordin noted: … It's notable that Dr. Krywaniuk also administered the Ravens to Ms. Fournier earlier this year, and obtained a much better (though still sub-average) score. It may be that the score Ms.

Fournier obtained on this test was negatively affected by her psychological difficulties. [Emphasis in original] [ 62 ] On the whole, Mr. Nordin's tests indicated that Ms. Fournier has literacy skills of students in late high school. However, her math skills are comparable to students in late elementary school. [ 63 ] In

summary Mr. Nordin concluded: … the combination of Ms. Fournier's physical, cognitive and emotional difficulties restrict her form [ sic ] her prior work in office settings. These concerns, combined with her age and years out of the workforce already, render her, in my opinion, competitively unemployable for all other occupations as well. … [ 64 ] One aspect of Dr. Krywaniuk's testing requires specific note. In the Minnesota Multi-Phased Personality Inventory- 2 test, Dr.

Krywaniuk noted an elevation on the F Scale and that "this can raise concerns about validity, so the overall profile needs to be interpreted cautiously." [ 65 ] On cross-examination Dr. Krywaniuk agreed that this reading may indicate that the plaintiff was exaggerating. He also said that it indicates that the plaintiff is experiencing or reporting high levels of distress. [ 66 ] A second observation of note is found in the report of Jodi Fischer, a certified work capacity evaluator, who assessed the plaintiff at the request of the third party. [ 67 ] Ms.

Fischer opined under the heading "Reliability of Client Report" the following: Overall clinical findings identified some inconsistency to the reliability/accuracy of Ms. Fournier's subjective reports.* She is physically capable of significantly more at times than she currently states or perceives. * NB : In identifying some inconsistency to Ms. Fournier's subjective reports, I am no means implying intent. I am simply stating that she is physically capable of more at times than she subjectively perceives.

Eventual guidelines concerning her physical work ability are better based upon objective findings, than upon her subjective reports of ability and/or limitation. IV. Causation [ 68 ] Even the experts (notably Dr. O'Shaughnessy) relied upon by the third party appear to concede that the plaintiff's injuries, which I have described, and her present symptoms, have been caused by the accident. [ 69 ] I note again that Dr.

Krywaniuk found: … Personality testing revealed very high levels of emotional maladjustment, to the extent that psychological factors probably contribute quite strongly to the overall symptom pattern and may also be involved in the neuropsychological profile. … [ 70 ] In Reilly v.

Lynn , 2003 BCCA 49 at ¶ 43 , Justice Southin in dissent criticized the trial judge for not asking himself "whether a tortfeasor is obliged to pay for the effects on his victim of the victim's 'emotional imbalance' and 'psychological overlay'" in a case where the judge found that the plaintiff's cognitive difficulties were not from a residual organic impairment of brain functioning, but from psychological overlay. [ 71 ] I have asked myself that question on the facts before me and I have concluded on the basis of the medical evidence that all of Ms.

Fournier's present difficulties, whether in part a contribution of psychological factors, trace their cause to the accident and

the injuries she suffered as a direct consequence of it. [72] In short, in the language of Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, the plaintiff's injurieshave been caused or contributed to (well beyond the de minimis range) by the negligence of Richard Stevenson. V. Heads of Loss (

i) Non-Pecuniary Damages [73] I have already discussed the medical evidence, in particular the evidence concerning the cognitive deficits Ms.Fournier now experiences. I have, as well, related the observations of Ms. Fournier's immediate family. [74] In her report of 12 August 2002, Ms. Fournier's occupational therapist, Caroline Cotton, noted that "Ms. Fourniercontinues to make slow progress in her recovery." She relates that Ms.

Fournier reports that she suffers: ► severe headaches, including debilitating migraine headaches; ► neck pain and low back discomfort resulting in reduced sitting tolerance; ► restricted walking tolerance due to general fatigue, low back discomfort and pain in her right foot; ► disturbed sleep patterns; ► increased sensitivity to noise; ► decreased short term memory; and ► increased stress and anxiety. [75] There is no dispute that Ms. Fournier's physical complaints arise directly from the injuries suffered by her in theaccident. [76] Mr. Hungerford, counsel for Ms.

Fournier, submits that an appropriate award for non-pecuniary damages would bethe sum of $240,000. He cites: ► Frers v. De Moulin (2002), 1 B.C.L.R. (4th) 131 (S.C.), 2002 BCSC 408. ► Spehar (Guardian ad litem of) v. Beazley 2002 BCSC 1104. ► Wilson (Guardian ad litem of) v. Russell

(2000) B.C.A.C. 305 (C.A.), 2000 BCCA 611. [77] Counsel for the third party, Ms. Lindsay, urges an award in the range of $100,000 to $125,000 and she relies upon: ► Chiu (Guardian ad litem of) v. Chiu, [1999] B.C.J. No. 2082 (S.C.) (QL), aff'd on this issue 2002 BCCA 618. ► Cook v. Cahoose and ICBC 2001 BCSC 254. ► Dahl v. Whitehill and ICBC, [1997] B.C.J. No. 2916 (S.C.) (QL). [78] In my view, each of the cases relied on by the plaintiff involves a plaintiff who suffered more severe injuries thandid Ms. Fournier. [79] In Frers, the plaintiff was in a coma for three weeks and in hospital for ten weeks.

The plaintiff suffered a severetraumatic brain injury. There was sensory loss over the plaintiff's right face, arm, leg and body. Non-pecuniary damages were assessedat $220,000. [80] In Wilson, again the plaintiff was unconscious for "some days". The plaintiff suffered a severe brain injury and"massive fractures to the bones of his head and face", a "significant facial deformity" and impaired vision. [81] Wilson underwent 17 separate surgeries. He was awarded non-pecuniary damages of $250,000 (the upper limit wasthen $262,000). The award was upheld on appeal. [82] Spehar was a 16 year old plaintiff.

It was another case of "very severe traumatic brain injury". The plaintiff hadbeen judicially declared to be incapable of managing her own affairs. She spent 28 days in hospital and was in a coma for one week. She became virtually unmanageable because of very significant behavioural difficulties. She was awarded $280,000, the upper limit. [83] Conversely, each of the cases relied upon by the third party, in my view, were concerned with injuries less seriousthan those suffered by Ms. Fournier. [84] Taking into account the nature of Ms.

Fournier's injuries and her prognosis, I award the plaintiff the sum of$185,000 by way of non-pecuniary damages. (ii) Loss of Past Income

[85] The parties are not too far apart on this head of loss. [86] The plaintiff seeks $158,375.

This assumes a loss of 181 weeks of employment at Brookfield, an annual salary of$35,000 and a benefits package of $10,500 per year. [87] The third party suggests that the plaintiff would likely have worked six months for Delta Play at $32,000 beforeaccepting the job at Brookfield at a salary of $34,000 per year. [88] The third party does not include the value of the benefits package and calculates the loss at $120,000 with areduction to net income to be calculated pursuant to ss. 52 and 54 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996 c. 231. [89] I agree with the third party's approach.

Pursuant to s. 54, Ms. Fournier is entitled to no more than her net income forthe period calculated in accordance with s. 52.

I conclude, however, that the plaintiff would have accepted the job at Brookfieldimmediately and that she therefore is entitled to an award based on an annual income of $34,000 calculated in accordance with s. 54 ofthe Insurance (Motor Vehicle) Act. (iii) Loss of Future Earning Capacity [90] Expert reports from two economists were filed - the Carson report by the plaintiff and the Hildebrand report by thethird party. [91] The plaintiff assumes that she would work full-time to age 70 and then part-time to age 75.

This is based on theassumption that the plaintiff's love of work and her family's impressive longevity would allow for that. No contingencies are allowed foras counsel argues that he has not inflated the plaintiff's anticipated salary for expected increases. [92] On the plaintiff's calculation she is therefore entitled to a total award of $505,809.50 (which includes benefits of$104,464). [93] The third party calculates the loss under this head at between $100,000 and $120,000, assuming that the plaintiffwould work to age 65 at a salary of $34,000 per year, with contingencies factored in.

These contingencies include a labour marketcontingency (labour force non-participation, unemployment and part-time work). [94] I agree with Mr. Hildebrand's criticism of Mr. Carson's methodology: "Given the plaintiff's age at the time of theaccident, ignoring labour market contingencies over her remaining working life could lead to significant overstatement of income lossestimates". [95] In approaching my assessment under this head of loss I conclude, based on the overwhelming evidence, that theplaintiff is not competitively employable for the remainder of her working career.

I also approach the assessment having concluded thatit is unreasonable to assume that the plaintiff would work to age 75 as urged by the plaintiff. [96] The Court of Appeal has recently considered again the assessment of loss or impairment of future earning capacityin Reilly v. Lynn, supra. [97] There, Smith and Low JJ.A. criticized (at ¶ 106) "an excessively mathematical approach" to the assessment of thisloss. [98] Their Lordships summarize the proper approach so (at ¶ 100-101): [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., (SCC), [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 hisprospects and potential prior to the accident? It is not loss of earnings but, rather, loss of earning capacity for which compensation mustbe 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, notthe balance of probabilities, and hypothetical events are to be given weight according to their relative likelihood: Athey v. Leonati, (SCC), [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 plaintiffwould probably have earned but for the accident with what he will probably earn in his injured condition: Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness andreasonableness 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 task of the Court is to assess the losses, not to calculate themmathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995), (BC CA), 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 theaward is based may prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting for contingencies, the remarks of Dickson J. inAndrews 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 ofthe 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 theindividual against adverse contingencies.

Clearly, the percentage deduction which is proper will depend on the facts of the individualcase, particularly the nature of the plaintiff's occupation, but generally it will be small ... [emphasis added] [99] In the case at bar, assessing the positive and negative contingencies facing this particular plaintiff in the workplaceand considering the overall fairness and reasonableness of the amount, I award the plaintiff the sum of $225,000 under this head. (iv) Cost of Future Care [100] The plaintiff advances a very significant claim under this head of loss. [101] She relies, in part, on the report of Janice Landy, a rehabilitation management consultant, and the evidence of Dr.Anton. [102] Counsel submits that Ms.

Fournier's cost of future care ranges from $879,159 (low) to $895,186 (high). [103] This figure comprises Ms. Landy's higher cost estimate of $546,090 (the present value calculation was undertaken byMr.

Carson), but extrapolated to age 92, plus: ► the cost of an additional three hours per month travel time for the occupational therapist; ► the cost of speech therapy at $7,300 per year; ► the cost of financial management services at $2,550 per year; ► the cost of computer assistance at $225 per year; and ► the cost of a BCAA membership at $57 per year. [104] The third party maintains that the plaintiff's claim is excessive, but does not offer an alternative number. The thirdparty rather critiques each item of cost detailed in the Landy report and advanced by counsel. [105] Ms.

Landy's recommendations are supported by the expert opinion of Dr. Anton. [106] As well, in light of the medical evidence which I have earlier reviewed and in particular the evidence of Dr.Krywaniuk, it is clear that Ms. Fournier suffers permanent disabilities arising out of the accident which will significantly impact herability to live independently. [107] The third party submits that Ms. Fournier is capable of living independently with minimal support.

I disagree. [108] While she exhibits some ability to control her life, make and keep appointments, seek out assistance and make knownher needs in an articulate fashion, initiate volunteer placements and manage some of her business interests (a number of rental properties),it is clear to me that she is very tentative in this regard, easily distracted from the task at hand and easily overwhelmed. [109] Ms. Fournier's sons describe her as "fragile" after the accident. This is an apt observation. [110] While I believe that Ms.

Fournier is probably capable of doing more, at least physically, than she realizes, and while Ialso conclude that she will improve emotionally (psychologically) with a more aggressive treatment of her depression (as Dr.O'Shaughnessy suggests), it is nevertheless clear that Ms. Fournier will require access to assistance from various care givers for the restof her life. [111] In my view, Ms. Fournier is only capable of semi-independent living. [112] I turn to review each item of cost identified by Ms. Landy and supplemented by counsel.

In doing so, I haveinstructed myself on the law in this area set out in: ► Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 S.C.R. 229. ► Brennan v. Singh (2000), 75 B.C.L.R. (3d) 39 (C.A.), 2000 BCCA 294. ► Krangle (Guardian ad litem of) v. Brisco (2002), 208 D.L.R. (4th) 193 (S.C.C.), 2002 SCC 9. ► Milina v. Bartsch (1985), (BC SC), 49 B.C.L.R. (2d) 33 (S.C.). (

a) One-to-One Rehabilitation Support [113] Ms. Landy costs this item, a rehabilitation assistant, at $13,594.88 (high) per year and Mr. Carson calculates a presentvalue of that cost to age 83.5 at $226,117.

[ 114 ] The third party submits, correctly, that Ms. Fournier has in the past frequently refused a rehabilitation assistant and on 8 August 2001, the assistant was completely discontinued at Ms. Fournier's request. [ 115 ] Ms. Cotton, Ms. Fournier's last occupational therapist, records that between March and August 2001, Ms. Fournier had 20.5 hours of rehabilitation assistance or four hours per month. [ 116 ] Ms.

Landy recommends four hours of rehabilitation assistance per week. [ 117 ] I agree with the submission of the third party that in the circumstances this is an excessive claim. [ 118 ] I have concluded that a reasonable assessment of Ms. Fournier's needs would call for rehabilitation assistance at two hours per week for three years. [ 119 ] Using Mr. Hildebrand's multipliers, I calculate a present value of this cost at $19,418 [($7,000 ÷ $1,000) x $2,774]. [ 120 ] I have used Mr.

Hildebrand's cost of care multipliers where possible because he uses survival probabilities for British Columbia resident females as indicated in the 1995-1997 Canada Life Tables. This has not always been possible in the calculations which follow, but where I have used Mr. Carson's multipliers, a not very significant difference arises. [ 121 ] In making my awards, I reject Mr. Hungerford's submission that one should assume that Ms. Fournier will survive until age 92. I prefer instead the statistically valid approach of Mr. Carson and Mr. Hildebrand. (

b) Psychological Counselling [ 122 ] On the medical evidence, I conclude that this care is justified. I accept Ms. Landy's costing with year three and ongoing thereafter at six hours. On Mr. Carson's calculations, the present value of the cost of this care is $17,787. (

c) Physiotherapy [ 123 ] Ms. Landy's recommendations are supported by the opinion of Dr. Anton. I accept Mr. Carson's calculation of $21,841. (

d) Occupational Therapy/Rehabilitation Case Management [ 124 ] The plaintiff's proposal is quite reasonable with four hours of service monthly in year one and two hours monthly in year two and ongoing thereafter. I utilize the lower rate of $90 per hour. [ 125 ] Plaintiff's counsel seeks an additional award in respect of travel time expenses for three hours per month. This seems excessive. I award the sum of $55,000, which includes the Landy/Carson costing plus an allowance for travel time expenses. (

e) Avocational Consultation [ 126 ] In her report, Ms. Landy writes: Connie has been deemed competitively unemployable by Derek Nordin (Vocational Consultant). She presently volunteers one hour/week in an avocational setting. She is limited in her ability to consistently participate because of her ongoing multiple level of impairment (physical, cognitive, emotional). She does; however, state a desire to continue to participate in this type of program as able. Funding is recommended to support avocational placement exploration and on-site assistance for Connie. An hourly rate of $75.00 plus G.S.T. is suggested.

Contingency funding in the amount of $5,000.00/year for duration of 5 years is proposed given the need for flexibility. $5,000.00/yr X 5 yrs = $25,000.00 [Emphasis in original] [ 127 ] I note that the plaintiff has taken some initiative in respect of volunteer placements and that her occupational therapist has assisted in this regard as well. [ 128 ] In my view, however, this proposed cost is not reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff and I make no award under this particular sub-head. (

f) Pharmaceutical Expenses [ 129 ] The plaintiff is required to take a variety of prescribed drugs. Ms. Landy has costed these drugs without regard to existing financial assistance for British Columbians both before and after age 65. I accept the third party's calculations, which take into account these benefits. I award the sum of $15,000 under this sub-head (the plaintiff claimed fully $101,624). (

g) Interior Home Maintenance [ 130 ] Ms. Landy recommends a maid service at four hours per week. Dr. Anton agreed with Ms. Landy's recommendations generally.

[ 131 ] The functional profile for Ms. Fournier set out in the Fischer report supports this recommendation as well. I award the sum of $86,481 under this sub-head using the Hildebrand multiplier. (

h) Financial Management [ 132 ] The anecdotal evidence of Ms. Fournier's family, the evidence of Mr. Simpson (Ms. Fournier's privately retained case manager) and the results of Ms. Fournier's neuropsychological testing support an award here. Using an annual cost of $2,550 (Exhibit 6) and Mr. Hildebrand's multiplier, I calculate an award of $42,409. (

i) Speech Therapy [ 133 ] At trial the plaintiff relied upon the report of Ruth Casanova with respect to language and speech pathology (Exhibit 8). [ 134 ] Because of the late delivery of that report, I gave the third party leave to respond after completion of the trial. [ 135 ] Ms. Lindsay has now filed a report by Wendy Duke, a registered speech language pathologist. [ 136 ] Mr. Hungerford calculates that the present value of Ms. Casanova's recommended therapy is $62,358 ($7,300 for each of the first two years and $3,650 for each year thereafter). [ 137 ] Ms.

Duke has filed a comprehensive report in which she details the many tests which she had Ms. Fournier recently undertake. [ 138 ] Ms. Casanova's recommendations, on the other hand, are based on her assessment and treatment of Ms. Fournier some one to one and one-half years ago. [ 139 ] I find Ms. Duke's report to be a much more detailed review of Ms. Fournier's current language skills and I accept her recommendations as to the nature and extent of Ms. Fournier's required future treatment. [ 140 ] I award Ms. Fournier the sum of $30,970 under this head (the present value calculation of Ms.

Duke's proposal, plus an allowance for travel time was undertaken by Mr. Hungerford). (

j) Computer Assistance and BCAA [ 141 ] I award the sum of $4,700 under this sub-head. [ 142 ] The total award for cost of future care, therefore, is: $294,000. [ 143 ] I have given consideration to whether this award should be adjusted for contingencies. Such adjustments, usually downwards, are not uncommon. But it appears to me that for whatever negative contingencies might be conjured (and some are already considered in the life expectancy statistic utilized by the economists) one can off-set them with positive, real and substantial possibilities.

Absent evidence on specific contingencies, the whole exercise becomes quite arbitrary and I decline to embark on it beyond what is already built in to the calculations. (

v) Special Damages [ 144 ] The plaintiff claims the total sum of $19,698.94 (Exhibit 5). Of this, $14,249.65 represents the accounts of John Simpson who provided 149.4 hours of case management services to the plaintiff. [ 145 ] Mr. Simpson gave evidence at trial and I have reviewed his detailed periodic reports. In my view, this expense was completely justified. [ 146 ] I do not accept the third party's argument that this really represents part of counsel's fee. [ 147 ] I award the plaintiff special damages as claimed. VI.

Summary [ 148 ] I award the plaintiff the following: As to non-pecuniary damages: $185,000.00 As to loss of past income: a sum calculated in accordance with my earlier reasons As to loss of future earning capacity: $225,000.00 As to the cost of future care: $294,000.00 As to special damages: $ 19,698.94 [ 149 ] As agreed by counsel, the issues of a management fee and tax gross up will be the subject of future submissions.

[ 150 ] The plaintiff is entitled to her costs on Scale 3 unless there are circumstances which counsel wish to bring to my attention. “R.J. Bauman, J.” The Honourable Mr. Justice R.J. Bauman