IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150730

Docket: M143082

Registry:
Vancouver

Between:

Betty Wong by her
litigation guardian Todd Wong

Plaintiff

And

Jada Towns

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
On June 24, 2012, Betty Wong was driving through the Stanley Park
causeway into Vancouver, having just crossed the Lions Gate Bridge, when she
was rear ended by Jada Towns. Mrs. Wong was born on September 26, 1931; she was
80 years old at the time of the collision. Liability for this accident is
admitted but the parties dispute the nature of the injuries suffered by Mrs.
Wong due to the accident. While Ms. Towns does not dispute that Mrs. Wong now
suffers from a physically and mentally disabling condition, she argues that the
accident did not cause these injuries. Ms. Towns also disputes the quantum of
damages claimed by Mrs. Wong for pain and suffering and the cost of future
care.

[2]            
Very little is known about the collision. Ms. Towns demonstrated during
her examination for discovery an extremely sparse recollection of the events
and within three months of the accident Mrs. Wong developed severe and rapidly
advancing memory lapses due to dementia. She now has little or no recollection
of the events.

[3]            
What has been proven on a balance of probabilities is that the collision
was sufficiently severe to cause Ms. Towns’ airbag to deploy and strike her
“quite hard”. Ms. Towns also recalled that the collision caused her vehicle to
“fly back a little bit”. The damage caused by the collision resulted in both
vehicles being written off by ICBC and neither party was able to drive their
vehicle after the accident. Mrs. Wong’s head was propelled rapidly forward and
then backward by the force of the collision. The force of the collision was
great enough to cause Mrs. Wong to bite down on a dental bridge so hard that
the pressure broke the tooth that supported the bridge. After the accident,
Mrs. Wong was unable to exit her vehicle; she sat waiting for the paramedics in
a state of confusion for about ten minutes. Ms. Towns recalled seeing Mrs. Wong
being taken off by the paramedics in an ambulance.

[4]            
Causation, as argued by Ms. Towns, essentially involves a consideration
of two issues:

(1)      Whether Mrs. Wong’s disabling condition was
caused by an intervening event, a motor vehicle accident that occurred on
September 12, 2012; and

(2)      Whether
Mrs. Wong was suffering from this disabling condition at the time of the motor
vehicle accident on June 24, 2012, and would thus have developed these injuries
regardless of the accident.

MATERIAL FACTS

[5]            
Mrs. Wong resides with her husband, Bill Wong, in North Vancouver. They
were married in 1953 and have two children: Todd Wong and Mark Wong. Mrs. Wong
is currently 83 years old and her husband is 90 years old. They have lived in
their own home in North Vancouver for many years. It is a multi-level structure
that is accessed by a steep downward sloping driveway. There is a large garden
that historically was tended regularly by Mrs. Wong. At the time of the
collision in June 2012, Todd Wong was living with his parents and he continued
to reside with them until the trial.

[6]            
Mrs. Wong has three living siblings; her sister Verna who is 85 years
old, her brother Andrew who is 77 years old and her sister Sylvia who is 75
years old. Mrs. Wong’s father passed away but her mother is currently 105 years
old. Her mother has four sisters who range in age from 92 to 102. None of Mrs.
Wong’s siblings and neither her mother nor her four aunts have exhibited any
signs of dementia to date.

[7]            
Mrs. Wong was a library assistant for the Vancouver Public Library until
1997 when she retired. During her retirement Mrs. Wong kept very active. She
managed the family’s household doing all of the cooking, grocery shopping,
cleaning, and gardening. She had a reputation for being a meticulous
housekeeper. Mrs. Wong managed the household finances and did the family’s
banking. Her son, Mark Wong, has two children and Mrs. Wong became their
primary caregiver when Mark’s spouse went back to work. At the time of the
accident Mrs. Wong was no longer caring for her grandchildren full time;
however, she regularly saw them socially and sometimes babysat for her
daughter-in-law.

[8]            
Mrs. Wong was also actively involved in Qi-gong, which is a type of meditation
and exercise discipline. She attended Qi-gong sessions and studied meditation
online. Mrs. Wong maintained a healing and meditation room in her home and
practised traditional Chinese healing techniques. Mrs. Wong was also actively
involved in volunteer work for the Chinese community. For many years, Todd Wong
has been a prominent figure in the Chinese community; he has been responsible
for many social events and would regularly have his mother help with the
organization and planning of these events.

[9]            
When Bill Wong was diagnosed with Parkinson’s disease in or about 2011,
Mrs. Wong became his primary caregiver. She managed his medications and
administered his daily eye drops. She helped her husband to dress and walk up
the stairs in their home. Mrs. Wong continued to drive her own vehicle and took
her husband and herself to medical and dental appointments. Bill Wong stopped
driving in early 2012. Before the accident in June 2012, neither Mrs. Wong nor
Bill Wong required professional nursing care in their home.

[10]        
Mrs. Wong was also very involved in the care of her own mother, Mable
Mar, who at the time of the accident in June 2012 was 101 years old. Mrs. Wong
drove to her mother’s apartment in the West End of Vancouver two to three times
per week. She helped her mother prepare meals, looked after her garden, did
some shopping for her, assisted with her care, and spent time socializing with
her. Mable Mar is now 105 years old and only moved in with her son, Andrew Mar,
in late 2013. Each year about 60 to 70 family members would celebrate Mable Mar’s
birthday on July 4th and Mrs. Wong was always directly involved in the planning
of this family gathering as well as other family events. Andrew Mar, her
younger brother, marvelled at how well Mrs. Wong could keep all of the party
details and arrangements in her head and maintain tight control over execution
of the plans.

[11]        
When the collision occurred on June 24, 2012, Mrs. Wong was on route to
her mother’s apartment. Andrew Mar testified that Mrs. Wong went to her
mother’s apartment sometime after the collision. He had been there with his
mother when Mrs. Wong arrived. Mrs. Wong was particularly restless and buzzed
around the apartment putting things away. It is unclear how Mrs. Wong got to
her mother’s apartment on the day of the accident. She told Andrew Mar that a
tow truck driver dropped her off and she told her son Todd Wong that the police
took her there.

[12]        
Several family members testified about their observations of Mrs. Wong
in July and August 2012. Sylvia Chang, Mrs. Wong’s younger sister, observed
Mrs. Wong at a family gathering on July 4, 2012. Mrs. Wong appeared to be in a
daze; she sat at a table in a disoriented state and did not contribute to the
conversation apart from yes or no answers. Ms. Chang testified that this was
completely out of character for her sister who was always very engaged during
family gatherings; she was feisty, confident and expressed her views in a
straightforward manner.

[13]        
Todd Wong testified that he arranged for some friends to pick Mrs. Wong
up from Mable Mar’s apartment on the day of the accident. When she arrived
home, Mrs. Wong was very tired and appeared to be in shock. She immediately
retired to her bedroom even though she had been looking forward to visiting
with Todd’s friends. Todd Wong testified that Mrs. Wong slept a great deal in
the first few days after the accident. Although Mrs. Wong said she was fine
when asked by her son Todd, he noted that she would not leave the house and was
not interested in replacing her vehicle. For days Mrs. Wong attempted to write
out a description of the accident for ICBC but was unable to complete her
statement. Mrs. Wong told Todd that she felt “fuzzy headed”. Todd Wong
testified that his mother continued to express concern that she did not “feel
right” and was experiencing pain in the weeks following the accident. Todd Wong
took his mother to visit her doctor because she would not drive. To deal with
the pain from the accident, Mrs. Wong went to a chiropractor and Todd Wong
drove his mother to these appointments.

[14]        
The first time Mrs. Wong went out after the accident was on July 4, 2012
for her mother’s birthday party. Thereafter Mrs. Wong stopped going to family
gatherings and essentially became a recluse. She did not seek out contact with
her grandchildren or visit her mother on a regular basis as she did prior to
the accident. Todd Wong testified that during the summer months of 2012 he
noticed that Mrs. Wong forgot people’s names and lacked the ability to focus on
her tasks. She continued to complain of dizziness and vertigo and was not
interested in finding a new vehicle. She refused to go for a test drive and
insisted that Todd drive prospective vehicles.

[15]        
On June 26, 2012, Todd Wong drove Mrs. Wong to see her physician, Dr.
Susan Chow. Mrs. Wong described the accident to Dr. Chow and, in particular,
she said that the force of the collision caused her to be flung backward in her
seat. Mrs. Wong said she did not feel any pain or injury immediately after the
accident but sat in her vehicle in shock for several minutes. Mrs. Wong advised
Dr. Chow that she could not cook dinner on the evening of the accident and
retired to bed early as she was not feeling well. She reported feeling very
nervous the next day and could not complete her exercises. She also experienced
a headache and could not concentrate or find the right words in conversation.
After a physical examination, during which Dr. Chow detected a mild muscle
spasm and tightness in the lumbar region, the doctor diagnosed Mrs. Wong with
mild muscular soft tissue injuries, a head injury and anxiety. Because Mrs.
Wong had a history of aversion to conventional medicine, Dr. Chow recommended
breathing and relaxation techniques to calm the anxiety.

[16]        
Mrs. Wong returned to see Dr. Chow on July 26, 2012. She reported
continuing headaches that lasted a couple of hours; difficulty concentrating to
read; increased disruption in her sleep pattern; and taking a great deal longer
to perform daily living activities such as cooking. Mrs. Wong was also
experiencing anxiety while driving and having difficulties with her memory. She
was now forgetting things.

[17]        
Mrs. Wong reported to Dr. Chow that she had made an appointment to see a
chiropractor. I note that the first visit to Dr. Grant, who is a chiropractor,
occurred on September 5, 2012.

[18]        
Mrs. Wong again saw Dr. Chow on August 17, 2012. She reported being in a
“fog” and was having difficulty managing household appliances (she kept turning
on all of the appliances and blowing fuses). During this visit Dr. Chow learned
that Mrs. Wong had required substantial dental work for her bridge and a broken
tooth that supported the bridge. Dr. Chow also testified that Mrs. Wong
uncharacteristically was mistaken in the time of the appointment and arrived 30
minutes early.

[19]        
Dr. How testified that he had been Mrs. Wong’s dentist since 1993. Prior
to the accident on June 24, 2012, Dr. How had installed a bridge to support
Mrs. Wong’s teeth. On August 8, 2012, Mrs. Wong came into the office to have
her teeth cleaned and Dr. How found that the bridge was loose. The bridge had
not been loose on March 29, 2012, which was Mrs. Wong’s last appointment prior
to the accident. On August 16, 2012, Dr. How repaired the bridge but when he
removed the device he found that the supporting tooth had broken to the gum
line and it had to be extracted. A new bridge was installed on October 31,
2012. It is Dr. How’s opinion that the force of the collision is the most
likely cause of the broken tooth and the loosening of the bridge. Dr. How
opined that Mrs. Wong likely bit down hard on her teeth when she was rear ended
and the weakest tooth broke in response to the pressure. He opined that one
does not see this kind of pressure applied to teeth by elderly people and if
Mrs. Wong had fallen it is more likely she would have broken a front tooth
rather than an upper incisor.

[20]        
Dr. How testified that before the accident Mrs. Wong was direct and
feisty with him; she was able to instruct him on what she required regarding
dental work. On August 8, 2012, her demeanour was quite different. Mrs. Wong
would only give yes or no responses. Uncharacteristically, she let Todd Wong
instruct the dentist and appeared to be unable to answer for herself. Mrs. Wong
was also unable to describe how she injured her tooth. Dr. How testified that
after the accident Todd Wong brought his mother to the office, when before the
accident Mrs. Wong was able to drive herself to dental appointments.

[21]        
Todd Wong testified that in or about August 2012, Mrs. Wong began to
talk about a spiritual goddess visiting the outside of her home on several
occasions and Mrs. Wong started leaving food outside for the spirit. Although
Mrs. Wong’s religious beliefs included the existence of spirits, Todd Wong
testified that this was the first time that she talked about the physical
presence of a spirit.

[22]        
In cross-examination, Todd Wong agreed that he told the admitting nurse
at the hospital that his mother “seem[ed] to have recovered from” the motor
vehicle accident that had occurred in June 2012.

[23]        
Dr. Chow testified that she has known Mrs. Wong since she was a child
because her mother and Mrs. Wong are good friends. Dr. Chow confirmed the
following statements concerning her observations of Mrs. Wong prior to the
accident on June 24, 2012 (which are on page 3 of her report dated March 29,
2015 (the “March 2015 Report”)):

Prior to the motor vehicle
accident, Betty Wong, was a highly functional, independent, assertive,
organized, well groomed, and tidy individual who managed her household well.
She had retired from working at the Vancouver Public Library and provided care
for her husband with Parkinson’s disease, her mother who is currently 104 years
of age and her two grandchildren. She enjoyed gardening, meditation, shopping
and socializing with family and friends.

[24]        
In early September 2012, Mrs. Wong began to drive again using Todd’s
vehicle. On or about September 10, 2012, Mrs. Wong was driving with her husband
to a friend’s home when she struck the curb with the wheel and popped a tire.
Neither Mrs. Wong nor Mr. Wong complained of any injuries due to this accident.
The accident did not lead to an attendance at their doctor’s office for
treatment. The accident was not reported to ICBC.

[25]        
When Mrs. Wong and her husband realized the tire was flat, they called
Todd who came to change the tire for them. Mrs. Wong advised Todd that she had
become confused about the address for their friend and ended up on the wrong
street. Todd Wong eventually found the friend’s address and directed his
parents to the friend’s home. Todd Wong testified that his parents seemed fine
after the incident and he did not feel it was necessary to report the events to
ICBC.

[26]        
A few days after the flat tire incident, on September 14, 2012, Mrs.
Wong woke Todd up in a state of paranoia; she believed there was a run on the
bank and they had to take out all of their money. Todd tried to assure her that
everything was fine at the bank and to wait for him to get up. When Todd came
into the kitchen he realized that Mrs. Wong had already left in his vehicle.
Todd went to work thinking that his mother might have breakfast somewhere and
then go to the bank. At noon he called home and learned that Mrs. Wong had not
returned and at 5:00 p.m. when he came home from work she still had not
returned home. Later that evening Mrs. Wong was driven home by someone who had
found her at Park Royal Shopping Mall. Mrs. Wong had been hiding from the
police all day. She left Todd’s vehicle at the mall. It was apparent to Todd
that his mother was behaving in an uncharacteristically paranoid manner. That
night Mrs. Wong continued to have paranoid thoughts and talked about things
that did not make sense.

[27]        
That night Mrs. Wong’s sister, Sylvia Chang, came over to help assess
Mrs. Wong’s state of mind. She and Todd believed that Mrs. Wong might have
become dehydrated during the day and would benefit from a good sleep.

[28]        
The next morning, Todd telephoned Dr. Chow and she advised him to take
Mrs. Wong to the emergency ward of Lions Gate Hospital and she would meet them
there. After Todd explained to Mrs. Wong that they would be taking her to see
Dr. Chow, she disappeared from her home and could not be found. Later that day
a neighbour, who was a doctor, brought Mrs. Wong home. She was bruised and
scratched from climbing over the doctor’s fence. Todd took his mother to the
hospital immediately after she returned home. She was admitted for psychiatric
observation.

[29]        
Dr. Chow’s March 2015 Report describes the events at the hospital and
her diagnosis on page 2:

On September 15, 2012; the
patient was admitted to Lions Gate Hospital with acute first onset psychosis
and dementia. She had become increasingly suspicious the preceding day, … The
patient developed more disorganized behavior as well as new onset delusions of
persecution and paranoid behavior regarding security people and police. Along
with this, she was experiencing visual and auditory hallucinations. … [She] was
then taken to Lions Gate Hospital by family who had recognized that she was
missing and had authorities searching for her. Her son stayed with her
overnight as she tried to escape from the hospital 12 times on the first night.
During her 4 week admission, the patient was followed by psychiatrist, Dr.
Avind Kang and myself. She continued to have delusions containing themes of
assault and poisoning and some religious/spiritual content. These delusions
diminished on Risperidone and Quetiapine. She had a CT scan and SPECT scans of
the head which indicated small vessel ischemic changes and marked reduced
bilateral uptake in the temporo-parietal regions consistent with dementia of
the Alzheimer’s type. Cognitive testing in the form of a MoCA test was scored
at 19/30 and was stable even when she was apsychotic (a normal score is 28 or
higher).

[30]        
Todd Wong testified that he visited his mother in the hospital every day
until her release in or about October 12, 2012. He testified that Mrs. Wong
continued to be paranoid and he had to comfort and reassure her that no one was
chasing her. When Mrs. Wong was released from hospital she was very timid and
subdued; she was prescribed anti-psychotic medications for the delusions and
paranoia.

[31]        
Since her release from hospital, Mrs. Wong’s mental health has
deteriorated significantly. Dr. Chow’s March 2015 Report describes the changes
in Mrs. Wong at page 3:

…At this time, she is dependent
on others to manage her finances, legal affairs, appointments, medications, social
activities and meal preparation. She requires supervision for health and safety
reasons and is at risk for wandering and being lost. She is no longer able to
drive. She is withdrawn and lacks interest and initiative to interact with
others. Her verbal responses are severely delayed and she has a paucity of
words when speaking. She lacks appetite and it is a struggle for her to
maintain her weight at a healthy body mass index. She experiences auditory and
visual hallucinations as well as delusions. She lacks insight regarding her
diagnosis and management of her medical problems. She experiences dizziness and
imbalance which, in combination with her physically deconditioned state, places
her at increased risk for falls. She currently receives homecare assistance at
lunch seven days a week to ensure she takes her medication and later in the
evenings three days a week to allow her son to continue to work. Her
medications include Quetiapine (Seroquel) which has anxiolytic, antidepressive
and antipsychotic properties, Risperidone which has helped to decrease her
auditory and visual hallucinations and delusions, and Donepezil (Aricept) a
cholinesterase inhibitor aiming to delay progression of her dementia. Mrs.
Wong’s cognitive and physical decline has been documented and validated by
numerous standardized tests the most striking of which is the recent January
14, 2015 Montreal Cognitive Assessment score which was 9/30 which places her in
the severely impaired range.

[32]        
Todd Wong testified that his mother now spends most of her waking hours
on the couch staring at the television and she will not engage with him or Bill
Wong even if pressed. She refuses to go outside or for a drive. She does not
interact with her husband as she used to before the accident. This represents a
gradual change since her release from hospital. In late 2012 and 2013, Mrs.
Wong still enjoyed listening to music and was able to manage her own
medications. She also worked in the garden on some days. Since 2014, she has
not worked in the garden at all. Mrs. Wong no longer interacts with her
grandchildren and finds that they are too noisy. Mrs. Wong also refuses to
visit her mother except for special family occasions. When Mrs. Wong visits
with her mother she rarely interacts or converses with her.

[33]        
Mrs. Wong now requires assistance with her medications; she needs to be
taken to the pharmacy and requires help remembering when and what pills she
takes each day. Todd Wong testified that he tries to involve Mrs. Wong in
picking up her medications to keep her brain active. Mrs. Wong never drove
after September 14, 2012; as a consequence, Todd Wong must take her wherever
she needs to go.

[34]        
Todd Wong also helps his mother with the household finances. He takes
her to the bank and checks to see that she has paid the bills. She often
forgets to pay bills and, as a result, services have been discontinued. Because
of her memory problems Todd must write all her appointments in a calendar. Todd
Wong testified that he is now his father’s caregiver and has taken over all of
the duties his mother used to perform before the accident. At some point Todd
began coming home from work at lunch to help his father with meals and
medications.

[35]        
When the home care required by his parents became too much for Todd to
handle, he contacted Vancouver Coastal Health in or about September 2014, to
obtain in-home care for them. The visits from a homecare worker began on
October 8, 2014; they came three times per week. At present there is a homecare
worker with Mrs. Wong and Bill Wong for some period of time seven days per
week. These visits occur when Todd is at work. In total the homecare workers
are with Mrs. Wong and Bill Wong 43 hours per week. The homecare worker makes
breakfast, takes Bill Wong out for coffee, does light housework, helps Bill
Wong take a bath, and generally supervises Mrs. Wong and Bill Wong to ensure
their safety. Todd Wong estimated that he and the homecare workers spend 40% of
their time caring for Mrs. Wong and 60% of their time caring for Bill Wong.
However, it is difficult to assess the split in his time because so many of his
chores, such as cooking and housecleaning, are for both his parents. Todd
continues to care for his parents when the homecare workers are not present and
he is the contact person for the homecare service. Todd Wong agreed that Bill
Wong’s physical health has deteriorated since the June 2012 accident. At
present he requires help bathing and dressing; and he needs help to go to the
bathroom.

[36]        
The stress of caring for his parents and working full time led to Todd’s
decision to take a three-month medical leave from work starting in January 2015.
Todd found the stress continued to build up with anxiety, distress, insomnia
and TMJ pain. As a consequence, Todd’s physician recommended a further leave of
absence from work. At the time of trial Todd continued to be off work on stress
leave. Part of the problem was that the homecare workers would regularly
telephone Todd while he was at work due to difficulties handling situations
with his parents. Todd continues to provide care for his parents now that he is
on stress leave. As a consequence of the leave of absence, Todd must forgo his
$25 per hour salary at the library where he is employed. Todd Wong also
testified that he is not able to spend time with his girlfriend or make plans
to cohabit with her because of the care he must provide for his parents on an
ongoing basis. Todd testified that he has had to curtail his many volunteer
projects in the Chinese community because of the time he must devote to caring
for his parents.

[37]        
Ms. Martin, who is Todd’s girlfriend, testified that since Mrs. Wong was
released from hospital in October 2012, Mrs. Wong’s attitude changed towards
her. Ms. Martin had no contact with Mrs. Wong from June to September 2012
because she was out of town visiting her family. However, on her return to
Vancouver in mid-September 2012, Mrs. Wong appeared to be alienated from her
and would not tolerate her presence. Before the accident Ms. Martin had a good
relationship with Mrs. Wong. Ms. Martin also testified that before the accident
Mrs. Wong was a high-functioning senior who was very active socially. She
testified that the change in Mrs. Wong’s mental state since September 2012 has
been extreme and dramatic. She confirmed much of the evidence given by Todd
Wong in describing his mother’s cognitive decline.

[38]        
In regard to his parents’ plans before the accident, Todd Wong testified
that his father and he discussed moving to a smaller residence but Mrs. Wong
was not enthusiastic about leaving her home. They never discussed living in a
care home or an assisted living facility. Now he believes this might be their
only option.

[39]        
Andrew Mar also testified about the changes he observed in his sister,
Mrs. Wong. While he characterized Mrs. Wong as an excellent homemaker before
the accident, Mr. Mar testified she was frightened, withdrawn and
non-communicative when he saw her in the hospital. After her stay in hospital,
Mrs. Wong would not come outside to visit with Mr. Mar and would not come to
the telephone to talk to him. While she may attend the odd family gathering,
Mrs. Wong does not engage with others socially; she sits silently at a table
and will only answer “yes” or “no”.

[40]        
Mr. Mar testified that for months after the accident his sister never
saw her mother. When he telephoned Todd to say he and Mable Mar were coming to
visit Mrs. Wong, Todd said she did not wish to have visitors. It is because
Mrs. Wong would not have him and her mother over to visit that Mr. Mar did not
see his sister between June 24 and mid-September 2012. This was very
uncharacteristic of Mrs. Wong who had regularly visited her mother before the
accident.

[41]        
Sylvia Chang also testified about the changes she has seen in her sister
since the accident. Ms. Chang and her sister visited socially at least once per
week before the accident and talked on the telephone almost daily. They also
attended a meditation class each week. Ms. Chang testified that her sister
worked hard for their mother; she cooked, did her laundry and cleaned up her apartment.
Ms. Chang knew her sister as an excellent homemaker and an avid gardener. Mrs.
Wong liked to go for long walks and had no difficulty with the steep walkway
down to her residence. Since the accident, Ms. Chang noticed that Mrs. Wong
does not do any housekeeping and has let her appearance slide. She no longer
dresses up and does not do her hair. While before the accident Mrs. Wong was
outspoken and forthright, now she barely uses one word answers. She will not
talk on the telephone. When Ms. Chang visits, her sister watches television or
goes to sleep. In cross-examination, Ms. Chang denied that before the accident
Mrs. Wong was forgetful.

[42]        
In cross-examination, Todd Wong denied that his mother had been under
extreme stress since 2010 or 2011 or that she had become forgetful before the
accident. The Lions Gate Hospital records for September 17, 2012 indicate that
someone (and perhaps Mrs. Wong) reported that Mrs. Wong had an approximately
one-year history of memory lapses. When shown the clinical notes made by an
ophthalmologist who saw Mrs. Wong on October 12, 2012, Todd Wong testified that
he could not recall a panic attack Mrs. Wong had in March 2012 and he did not
recall taking her to this appointment. I note that if Mrs. Wong gave this
information to the ophthalmologist, it is likely not accurate given the state
of her mental health at this time.

[43]        
I had an opportunity to observe Mrs. Wong on the witness stand. She
clearly has significant long-term and short-term memory deficits and is very
slow to respond to simple questions. Mrs. Wong could only answer “yes” or “no”
to most questions apart from her address, which she appeared to have memorized.

EXPERT REPORTS

A.  Medical Diagnosis

[44]        
Dr. Chow’s March 2015 Report contains the following medical opinion and
diagnosis at page 3:

In summary, Betty Wong, was
involved in a motor vehicle accident 24 June 2012 and is now 2 years and 8
months post injury. As a direct result of this accident, she has sustained soft
tissue injuries to her back, a fractured tooth requiring extraction and a
fractured bridge requiring replacement. Most importantly, she has sustained a
head injury with persistent symptoms of concussion including anxiety and
depression, and cognitive changes progressing to psychosis and mixed dementia
with contributing vascular factors and Alzheimer’s components. I do agree with
Dr. Kiraly that the head injury has also resulted in sleep difficulties and
significant personality change. In terms of residual symptoms, the patient’s
neurodegenerative condition has already progressed rapidly and is anticipated
to continue along this trajectory without improvement. The patient requires
prescription medication to stabilize her psychiatric conditions and already has
them dispensed in a blister packed format. She currently requires family and
homecare supervision and support for most of her activities of daily living and
will most likely require total care in a long term care facility in the future.
She will require physiotherapy, occupational therapy and recreational therapist
supports. She will require someone to continue to manage her financial and
legal affairs. The injuries have not only affected Mrs. Wong but also her
family in that they have now lost her as a caregiver for her mother, husband
and grandchildren.

[45]        
Dr. Chow opined that the flat tire incident had no impact on Mrs. Wong’s
injuries. It was a very minor incident that did not require medical treatment.
Although Dr. Chow acknowledged that Mrs. Wong was under some family stress
prior to the accident, she testified that Mrs. Wong coped well and never
brought up stress as a problem during medical appointments.

[46]        
Dr. Kiraly is a specialist in geriatric psychiatry. He has had extensive
experience and training in the diagnosis and treatment of brain injuries and diseases
among the elderly. In particular, Dr. Kiraly has studied extensively the impact
of brain injuries on the onset of dementia. He has found that there is a
significant correlation between head injuries and the development of dementia
symptoms.

[47]        
Dr. Kiraly’s report dated February 23, 2015 (the “February 2015
Report”), indicates that he first saw Mrs. Wong in October 2012, as a follow-up
after her discharge from hospital. She became his patient at the Older Adult
Mental Health Team clinic in West Vancouver. In addition to his observations
during her treatment, Dr. Kiraly did his own psychiatric assessment on January
14, 2015 at Mrs. Wong’s home; he reviewed all of the hospital records and the
clinical records of her treating physicians; and obtained information from
family members and long-time friends.

[48]        
Dr. Kiraly also reviewed the report of Dr. Grant, who was Mrs. Wong’s
chiropractor. Dr. Grant’s notes indicate that on September 5, 2012, Mrs. Wong
reported that she was still not feeling like her old self before the accident.
Mrs. Wong also described her pain to Dr. Grant as six out of ten and indicated
that the pain was interfering with her activities of daily living. She had some
discomfort with recreational activities and severe discomfort in concentrating,
which she scored as nine out of ten (ten being the worst possible score). At
the same time she reported depression at nine out of ten. She could not attend
to her usual duties of cooking and cleaning and looking after her family; she
was waking up several times each night and had neck and shoulder pain. During
the September 5, 2012 session with Dr. Grant, the results of a symptom
checklist indicated impairments in attention, concentration, short-term memory,
mistakes that were not caught, slowed speed of thinking, and disorganized or
confused thinking. The physical symptoms included fatigue, tingling or numbness
in legs or arms and the emotional symptoms included feelings of sadness,
depression, increased emotion, decreased interest in fun and activities and
feelings of anxiety and fear. Dr. Grant diagnosed concussion with ongoing
chronic neck, jaw and back pain.

[49]        
Dr. Kiraly summarized Mrs. Wong’s hospital treatment and diagnosis and
also summarized his own observations of Mrs. Wong in his follow-up. He reported
that she generally maintained recovery and participated in a meditation and
support group. Her medications were well tolerated. In December 2012, he noted
that Mrs. Wong’s SPECT scan showed Alzheimer’s pathology. He advised Mrs. Wong
not to drive and opined that the history of concussion appeared to precipitate
her recent paranoid and dementing illness. Dr. Kiraly also noted that his
review of Mrs. Wong’s medical history and the collateral sources showed that
prior to the accident she exhibited no signs of dementia or possible
Alzheimer’s.

[50]        
On examination by Dr. Kiraly, he noted that her speech was intact but it
was repetitious and she required explanations. Mrs. Wong became confused with
complex instructions and was slow to process them. Her thought processes were
slow, methodical, obsessive, and perseverant when working on a task. Her
thought content was impoverished; she was easily overwhelmed and pessimistic
when pushed to talk about her situation. She had a low tolerance for
interaction and low energy. The results of the Montreal Cognitive Assessment
were 9/30, which is severely impaired. The Clock-X test showed poor executive
or planning function. The Brief Psychiatric Rating Scale showed severe
conceptual disorganization with depressed mood, mild anxiety and emotional
withdrawal. The Frontal Behavioral Inventory showed much apathy and lack of
personal insight.

[51]        
Overall, Dr. Kiraly concluded that Mrs. Wong suffered a mild traumatic
brain injury on June 24, 2012. She was discharged from the clinic in January
2014 and throughout this period Mrs. Wong showed stable mental health symptoms
and stable cognitive functioning. She showed no signs of any impairment in
cardiac function and no cardiovascular disease or atrial fibrillation to
predispose her to stroke. Dr. Kiraly opined that due to the head injury caused
by the accident, Mrs. Wong developed immediate and later a delayed reaction
with acute psychosis, cognitive deterioration, mood/anxiety disorder, sleep
disorder, and personality changes that persist in what he characterized as
persistent post-concussion syndrome. Dr. Kiraly opined that the dementia was
brought on by the accident-related concussion, which in turn resulted in
serious impairments in cognitive function and coping; communication and judgment;
apathy and poor impulse control.

[52]        
Dr. Kiraly’s opinion is summarized at page 12 of his February 2015
Report:

2.   As noted
above, my diagnosis was Persistent Post-concussion Syndrome (PPCS) which was
the residual state from a concussion suffered in the MVC. At the time of the
accident she suffered a concussion (MTBI) with definitive symptoms that made
the clinical diagnosis. She appeared to improve but started to develop symptoms
a month later and another month later, developed a florid psychosis with acute
cognitive changes necessitating hospitalization. She never fully recovered.

3.   Overall, it appears that being
vulnerable on account of age and possibly silent late onset neurodegenerative
processes (early stage of late onset Alzheimer’s disease?), she decompensated
into Postconcussive Syndrome (PCS) with persistent neurocognitive changes that
are clinically best described as Persistent Post-Concussive Syndrome (PPCS) of
neurodegenerative disease triggered by brain trauma… It is important to note
that she did not have a stroke nor did she have cerebrovascular disease or
cardiac disease which would have been predisposing factors for an acute brain
syndrome that she suffered. Ordinarily, in the absence of cerebrovascular
disease and strokes, and in the absence of early-onset type familial/genetic
Alzheimer’s type neurodegenerative disease, neither of which affected Mrs.
Wong, age-related neurodegenerative changes take place very slowly, over years.
As deterioration is very gradual both the victim and the caregivers can adjust
gradually. The rather sudden onset and rapid progression of deterioration in
this case is not attributable to cerebrovascular disease or stroke. It is
highly atypical, actually impossible, for Alzheimer’s type degeneration to
progress this rapidly, reaching 40/100 on the GAF Scale. We have not seen the
relentless deterioration that characterized Alzheimer’s disease. It is likely that
the clinical course described and the degree of impairment seen is a result of
diffuse brain damage (concussion/PPCS).

[53]        
Dr. Kiraly testified that anyone who reaches the age of 81 is going to
have some plaque deposits in the brain that could progress to Alzheimer’s
disease. Thus anyone can have latent Alzheimer’s and at the same time can be
functioning entirely normally. Where there is a brain trauma, like in this
case, the dormant Alzheimer’s disease can be activated to produce symptoms that
may never have been realized absent the brain trauma. Dr. Kiraly testified that
Mrs. Wong did not develop Alzheimer’s disease due to the sudden onset of
symptoms. He prefers a diagnosis of dementia.

[54]        
In terms of prognosis, Dr. Kiraly opined that Mrs. Wong’s cognitive
state is unlikely to improve. The degenerative changes will tend to progress
and produce more deficits. Additional life stress in the form of loneliness,
isolation and boredom will also increase her risk of further brain
deterioration.

[55]        
In cross-examination, Dr. Kiraly testified that a mild traumatic brain
injury can easily trigger dementia in an 80-year-old woman and this injury can
produce immediate symptoms or the symptoms can be delayed for one or two years
and then get worse. Dr. Kiraly testified that a whiplash can produce a mild
traumatic brain injury without striking the head on any object. The rapid
movement of the head forward and backward produces the brain injury. He
testified that the accident explained why Mrs. Wong developed symptoms of
dementia so quickly rather than very slowly, which is the norm. Dr. Kiraly
acknowledged that depression, grief or stress experience could indicate a
degenerative change when referred to the notes of the ophthalmologist from
October 2012. Dr. Kiraly also testified that while it might be possible that
Mrs. Wong experienced another concussion in the flat tire incident, he believed
it was not likely because it appeared to be a very minor event. The impact of
hitting the curb could not compare to a rear end collision of the magnitude
that occurred on June 24, 2012.

[56]        
Dr. O’Connor testified for the defence as an expert in geriatric
medicine. Dr. O’Connor did not examine Mrs. Wong. He made a diagnosis based on
the clinical notes and the history contained therein. Although Dr. O’Connor
included in his report dated May 14, 2015 (the “May 2015 Report”), a section on
life expectancy, I found that this portion of his report was inadmissible for
two reasons. First, I found that Dr. O’Connor was not qualified by education,
training or experience to provide an expert medical opinion on life expectancy
beyond reiterating life expectancy statistics. Second, Dr. O’Connor’s report
was served as a responsive report to Dr. Kiraly’s report and nothing contained
in the latter report addressed life expectancy. Dr. O’Connor’s report was not
served within the time limits for an original expert report.

[57]        
Dr. O’Connor’s conclusions, after reviewing the findings of Mrs. Wong’s
treating physicians, including Dr. Kiraly, are on page 14 of his May 2015
Report:

…The pattern seen here (initial
3 months of concussive symptoms, acute decline into psychosis, at least 6 to 9
months of relative stability, and a subsequent decline during a period of
approximately 20 months) is unusual, if the sole explanation is that of PPCS.
In my view, the progress of cognitive and other mental state changes seen here
are more consistent with the explanation that trauma was the initiating event
in a subsequent cascade of decline. From an etiological perspective, I believe that
the time course favours an explanation of an initial period of MTBI symptoms,
followed by the additive effect of a degenerative process, whose progress was
accelerated by the brain trauma. The degenerative process is likely that of
Alzheimer’s disease.

[58]        
Dr. O’Connor also opined that the period of stabilization from the end
of 2012 to May 2013 indicated an underlying Alzheimer’s component rather than
solely a traumatic brain injury as the cause of her symptoms. He also opined
that the magnitude and extent of executive function deficits found in the
testing in January 2015, pointed more towards Alzheimer’s involvement. In
regard to Dr. Kiraly’s opinion that it is impossible for Alzheimer’s’ to
develop so rapidly, Dr. O’Connor says at page 17 of his May 2015 Report:

…I do not agree with this
comment if viewed from the perspective that there is a dual process here.
Acceleration of the Alzheimer’s disease clinical decline process is frequently
seen in the setting of Alzheimer’s disease patients who suffer an episode of
delirium. In my view the presence of a dual process here does allow for more
rapid progression of the clinical manifestations of Alzheimer’s disease.

[59]        
Dr. O’Connor also opined that the flat tire incident could have been the
cause of a second mild traumatic brain injury: May 2015 Report at page 12. This
conclusion was based on the proximity of the event and Mrs. Wong’s admission to
hospital on September 15, 2012. Dr. O’Connor commented that Dr. Chow’s notes up
to August 17, 2012 did not record any clear progression of her concussion
symptoms. However, Dr. O’Connor ignored the progression of symptoms recorded in
Dr. Grant’s clinical notes.

[60]        
In cross-examination, Dr. O’Connor agreed that as a treating physician
Dr. Kiraly would have had a better opportunity to observe Mrs. Wong and this
was an advantage in her diagnosis. He also agreed that Dr. Kiraly’s qualifications
as a geriatric psychiatrist gave him an added advantage in diagnosing Mrs.
Wong’s injuries. While Dr. O’Connor concluded there had been a one-year decline
in memory that pre-dated the accident based on a clinical note from Lions Gate
Hospital, he agreed that Dr. Kiraly obtained contrary information from a
variety of collateral sources, including Dr. Chow. Dr. O’Conner agreed that
without a prior history of memory loss, it is much more difficult to support
his diagnosis of Alzheimer’s disease as a causal factor. Its prevalence in
older persons supported his diagnosis; however, he agreed that one could not
predict precisely when symptoms would appear absent intervening events such as
a mild traumatic brain injury. Lastly, it does not appear that Dr. O’Connor
disagrees with Dr. Kiraly’s conclusions regarding the prognosis for Mrs. Wong’s
condition.

[61]        
Dr. Kiraly wrote a responsive report to Dr. O’Connor’s opinion. In this
report dated May 22, 2015, Dr. Kiraly clarified that while his initial view was
that there was more than a mild traumatic brain injury to explain Mrs. Wong’s
condition, as her disease progressed he became more aware of the rapid
progression which is usually not seen in Alzheimer’s disease. While Dr. Kiraly
did not disagree that Mrs. Wong could have had an underlying latent Alzheimer’s
disease, he opined that it was latent and was not an issue until she
decompensated after the accident. For this reason he concluded that the mild
traumatic brain injury was the medical condition that precipitated the clinical
degeneration of her brain to produce dementia symptoms. Thus even if there was
an underlying condition, it was dormant and only triggered by the
accident-related injuries. Lastly, Dr. Kiraly disagreed with Dr. O’Connor’s
view that the SPECT scans pointed towards Alzheimer’s. In his view, the
comparative studies relied upon by Dr. O’Conner related to younger patients,
which may not be indicative of what occurs with older people. In his view of
the file, Mrs. Wong was resilient and had cognitive reserves until disrupted by
the accident.

B.       Future Care and Cost of Future Care

[62]        
Jeff Padvaiskas is an occupational therapist who provided an expert
opinion about Mrs. Wong’s future care needs and the cost of future care. He
reviewed the medial records and collateral interviews; and performed a
functional assessment of Mrs. Wong in her home. Based on his observations, as
well as the information received from collateral sources, Mr. Padvaiskas
concluded in his report dated March 31, 2015 (the “Future Care Assessment”),
that Mrs. Wong required “access to 24 hour supervision in order to ensure her
basic health and safety as well as implement appropriate therapeutic strategies
identified to promote her participation in activity”: at page 4. He also concluded
that she required additional help to care for her husband, which was part of
her pre-accident responsibilities.

[63]        
Mr. Padvaiskas summarized his findings regarding Mrs. Wong’s deficits at
page 5 of his Future Care Assessment:

On the basis of available information
and demonstrated performance, Ms. Wong is considerably limited by cognitive
deficits and altered personality. She has become increasingly socially
isolative despite a pattern of regular family and friend integration prior to
the accident. At this point she does not initiate social engagement and
typically refuses offers except on an infrequent basis. She is unable to
problem solve or maintain a focus for sustained periods. Her ability to relate
verbally is significantly reduced and her recall appears poor and at times
inaccurate. In terms of activity tolerance, she was noted to become resistant
and disengaged.

[64]        
Based on this assessment of her deficits, Mr. Padvaiskas concluded that
Mrs. Wong required supervision and support in all areas of functioning
including personal hygiene, dressing, eating and health maintenance, meal
preparation, household maintenance, transportation and mobility, financial
management and time management. Mr. Padvaiskas’ immediate recommendations
include 24-hour in-home care, which would consist of two workers working a
split week doing meal preparation, shopping, light housekeeping, and personal
care assistance. A clinical coordinator would be required to periodically
review care needs and ensure ongoing safety. While part of this assistance
would be dedicated to Bill Wong, it was Mrs. Wong who provided care for her
husband prior to the accident and she can no longer perform this function.

[65]        
The cost of this service is estimated to be $160 per day plus GST.
Statutory holidays are $240 per day. The estimated yearly cost is $59,280 plus
GST.

[66]        
Mr. Padvaiskas also recommended occupational therapy and care
management. Although the coordination and management of the care workers has
been carried out by Todd Wong to date, the workload has taken a toll on his
physical and mental health and has led to two medical leaves from his job. As a
consequence, a replacement coordinator should be employed. Mr. Padvaiskas
recommends 18 to 24 hours per year of occupational therapy and case management
while Mrs. Wong remains in her home. Occupational therapy costs $100 per hour
for rehabilitation work and an additional 20% contingency was recommended for
the travel costs of the therapist. Mr. Padvaiskas opined that a therapist could
increase Mrs. Wong’s range of activity and give guidance to the caregivers to
promote her engagement and participation in life activities. The overall cost
is estimated to be $4,320 to $5,760 per year.

[67]        
In regard to recommendations for the future, Mr. Padvaiskas concluded
that despite Mrs. Wong’s resistance to moving out of her home, her condition
will likely deteriorate to the point where residential care will be required.
Mr. Padvaiskas relied on Dr. Kiraly’s prognosis for further deterioration in
Mrs. Wong’s condition to support this recommendation. Mr. Padvaiskas recommends
that there be a transition to a residential care facility in the next one to
two years so that Mrs. Wong can adjust to the new environment while she is
still functioning at a reasonable level. If the family waited until residential
care was absolutely necessary due to Mrs. Wong’s deteriorating mental and
physical health, it may impede her adjustment to the new environment.

[68]        
In Mr. Padvaiskas’ opinion, the only realistic option for Mrs. Wong is a
private residential care facility. A public facility cannot guarantee placement
at the same time for a couple who have different care needs. Mrs. Wong may find
a care facility willing to take her but not her husband. A public facility may
not have couple’s rooms, which could result in their placement on separate
floors due to their different care needs. In addition, maintaining the
integrity of this couple’s relationship is important because if they are
separated after this very lengthy marriage, it may result in emotional loss for
Mrs. Wong and further cognitive deterioration due to reduced contact with Bill
Wong.

[69]        
Mr. Padvaiskas recommended the Sunrise Senior Living care home in North
Vancouver. This facility has one bedroom and large studio apartments for couples
and the staff have experience with dementia and movement disorders such as
Parkinson’s. The cost of residential care has three components and is
calculated per person: (1) a base cost which ranges from $150 to $170 per
day; (2) a level of care fee that ranges from $19 per day to $76 per day
for the highest level of care; and (3) a fee for administering medications
which ranges from $15 to $25 per day. When compared with the average costs of
private residential care facilities, Sunrise was found to be comparable in
price. It is also located in an area Mrs. Wong knows and it is close to her
family members’ residences.

[70]        
Including all of Bill Wong’s residential care costs in the calculation,
the yearly base cost for this residential care facility is $109,500 to
$124,100. The additional care costs per year are $13,870 to $41,245. The cost
of medication administration is $10,950 to $18,250.

[71]        
Mr. Padvaiskas notes that if Mrs. Wong is placed in a care facility, she
will not require occupational therapy or 24-hour support.

[72]        
In regard to costs of future care, Mr. Padvaiskas estimated the yearly
cost of Mrs. Wong’s medication as follows:

1.       Donepezil at a cost
of $379.60 to $430.70;

2.       Quetiapine at a cost
of $62.05; and

3.       Risperidone
at a cost of $262.80.

[73]        
Lastly, Mr. Padvaiskas recommended that Mrs. Wong have professional
assistance with financial management but he did not have the expertise to cost
out this service.

[74]        
Dr. Kiraly agreed with all of Mr. Padvaiskas’ recommendations in a
supplementary report dated April 2, 2015. He emphasized that separating Mrs.
Wong from her husband in a long-term care placement would be harmful and
detrimental to both of them. Dr. Kiraly also emphasized that a residential care
facility is not just housing; it is part of the treatment plan. As he says at page
1 of the supplementary report:

…Betty’s treatment needs will
change in the future and it will be only through reports from family,
caregivers and medical and psychiatric follow-up that optimization of
treatments will take place. That type of treatment is known as “complex care”
and it is an amalgamation of biological, psychological and environmental/social
treatments. Residential care may in fact be part of the treatment regimen (not
merely housing).

DECISION

A.       Causation

[75]        
Mrs. Wong argues that the expert medical opinions are in agreement that
she suffered a mild traumatic brain injury in the accident that triggered an
acute onset of dementia-related symptoms. These symptoms have continued and
worsened since September 2012. Dr. O’Connor opines that Mrs. Wong had
pre-existing Alzheimer’s disease and that regardless of the head injury she
would have developed this condition; however, Mrs. Wong argues that Dr. Kiraly
is more qualified to give an expert opinion regarding her diagnosis and he
opined that any pre-existing condition was latent and asymptomatic. Thus this
case represents a thin skull situation rather than a crumbling skull and the
accident was the operating cause of the resulting injuries.

[76]        
Ms. Towns agrees that Mrs. Wong suffers from dementia but says it is not
clear what precipitated the onset of the disease. The question is whether the
accident caused the brain trauma that triggered the symptoms. Ms. Towns argues
that the June 24, 2012 accident cannot be assumed to have been significant. The
fact the vehicles were written off does not mean they were substantially
damaged. Mrs. Wong suffered only modest whiplash injuries and her mild
traumatic brain injury improved to the point where she was driving again within
three months. Ms. Towns argues it is more likely that the flat tire incident
was the proximate cause of the head trauma that triggered dementia symptoms.
Shortly after this event, Mrs. Wong was admitted to hospital with acute
symptoms. Ms. Towns also argues that Dr. O’Connor’s opinion should be
preferred; that is, while the head trauma from the accident likely hastened the
onset of Alzheimer’s symptoms, the pre-existing condition was likely to have
developed regardless of the accident.

[77]        
In my view, Dr. Kiraly’s diagnosis must be preferred over Dr.
O’Connor’s. Dr. Kiraly has more training and specific expertise in the
diagnosis and treatment of elderly patients who have suffered head trauma
leading to dementia or Alzheimer’s symptoms. While he is a qualified physician
specializing in geriatric medicine, Dr. O’Connor is not qualified as a
psychiatrist. He is simply a geriatric physician. Further, Dr. Kiraly was a
treating physician who had many opportunities to observe Mrs. Wong and he
administered cognitive tests directly to his patient. He interviewed collateral
sources directly and thus was not required to interpret others’ notes to the
same extent as Dr. O’Connor. Dr. O’Connor, on the other hand, had only the
benefit of file information and test results. He did not examine Mrs. Wong or
interview collateral sources. I note that Dr. O’Connor agreed that both Dr.
Kiraly’s qualifications and his role as a treating physician gave him an
advantage in diagnosing the cause and nature of her condition.

[78]        
Moreover, a key underlying factor in Dr. O’Connor’s opinion that Mrs.
Wong was showing signs of Alzheimer’s disease before the June 24, 2012 accident
was a single reference to a one-year history of memory lapses contained in a
nurse’s clinical notes made during her hospital admission in mid-September
2012. Dr. O’Connor did not specifically refer to the comments in the
ophthalmologist’s October 12, 2012 clinical record in his diagnosis. Moreover,
there is no evidence of who may have given the ophthalmologist this information
and by this time Mrs. Wong’s memory was clearly impaired. I find it is unsafe
to base an opinion on the very limited evidence of memory problems pre-dating
the accident in the face of overwhelming evidence to the contrary from not only
Mrs. Wong’s family members, but from her physician, Dr. Chow and her dentist,
Dr. How.

[79]        
By all accounts, Mrs. Wong was a very high-functioning senior who was
eminently capable of managing her household, including finances, meals,
cleaning, shopping, and gardening. She had her own social and recreational
activities and provided care for her husband. Andrew Wong marvelled at how his
sister could retain so much information in her head when she planned large
family gatherings. Dr. Chow denied that Mrs. Wong had demonstrated any memory
deficits prior to the accident. Dr. How described Mrs. Wong as very forthright
and active in her own dental treatment. There was nothing in his description of
Mrs. Wong that would lead to an inference that her memory was deteriorating
prior to the collision. There is also nothing in the nurse’s note to indicate
who provided this information about Mrs. Wong. It may well be that Mrs. Wong
said something that led to the note. If that is the case, its reliability is
suspect given her mental state at the time she was admitted to hospital.

[80]        
I am also satisfied that the flat tire incident was not a contributing
factor to the symptoms of dementia that Mrs. Wong experienced. In my view, this
incident was relatively minor compared to the rear end collision on June 24,
2012. There is no evidence that either Mrs. Wong or Bill Wong suffered any
injuries from the incident. Neither Mrs. Wong nor Bill Wong attended the
hospital or their doctor’s office complaining of injuries sustained in the
incident. Both Mrs. Wong and her husband were well enough after the flat tire
incident to continue on to their friend’s home. Mrs. Wong’s only symptom was
some confusion about where the friend resided and this confusion led them to
the wrong street before she hit the curb and flattened a tire.

[81]        
In contrast, the rear end collision resulted in both vehicles being
towed away from the scene, presumably because they could not be driven. The
collision was sufficiently forceful to cause Ms. Towns’ airbag to deploy and to
cause her vehicle to “fly back a bit”. Mrs. Wong could not exit her vehicle for
about ten minutes due to shock, and subsequent to the accident she continued to
exhibit symptoms of a concussion. These symptoms continued throughout July and
August 2012 as recorded in Dr. Chow’s records. The changes in Mrs. Wong’s
demeanour were also detected by Dr. How on August 16, 2012 when he repaired the
bridge work.

[82]        
Although the defendant argues Mrs. Wong was well enough to drive by
September 2012, I note that Dr. Grant’s clinical notes from September 5, 2012,
which were relied upon by Dr. Kiraly in formulating his opinion, demonstrate
that Mrs. Wong was continuing to exhibit symptoms of a concussion at that time.
As a consequence, I am satisfied that there was no significant gap in symptoms
between June 24 and September 10, 2012 (the date of the flat tire) to attribute
any causal impact to the latter event. The fact that Todd Wong, a layperson
without medical training, may have felt that his mother had improved between
June 24 and September 15, 2012, when she was admitted to hospital, does little
to support the defendant’s argument. Moreover, this view is quite consistent
with the expert medical opinion that indicates Mrs. Wong showed some
improvement and then a rapid decline in cognitive function all related to the
head injury suffered on June 24, 2012.

[83]        
For these reasons, I accept Dr. Kiraly’s opinion that due to the June
24, 2012 accident, Mrs. Wong suffered from Persistent Post-Concussion Syndrome,
which was the residual state from a concussion suffered in the accident. At the
time of the accident she suffered a concussion or mild traumatic brain injury.
She appeared to improve but started to develop symptoms in late July and in
September she developed “florid psychosis with acute cognitive changes necessitating
hospitalization”. She never fully recovered.

[84]        
Further, I find that while Mrs. Wong may have had some form of latent
Alzheimer’s disease or dementia, it was asymptomatic prior to the accident. Dr.
Kiraly testified that all persons who reach the age of 80 are likely to have
plaque in their brain that may be indicative of the potential to develop
symptoms that resemble dementia or Alzheimer’s disease; however, unless the
person experiences a traumatic event, such as a brain injury, this condition
will remain dormant. As a consequence, I find that while Mrs. Wong may have had
a “thin skull” as that term has been defined by the Supreme Court of Canada in Athey
v, Leonati, [1996] 3 S.C.R. 458 at para. 34, she did not have a
“crumbling skull” such that there was a measurable risk that she would have
developed dementia or Alzheimer’s disease regardless of the accident.

[85]        
Accordingly, I find that the defendant is responsible for all of the
injuries and loss sustained by Mrs. Wong in the June 24, 2012 accident.

B.       Damages for Pain and Suffering

[86]        
Mrs. Wong claims damages in the amount of $185,000 for non-pecuniary
damages.

[87]        
Mrs. Wong argues that the injuries she suffered in the accident have led
to a dramatic change in her life. Before the collision she was a high-functioning,
active senior who managed all of life’s daily activities well. Since the
collision, Mrs. Wong has not been able to live independently; she can no longer
care for her husband and her mother. Her quality of life is now vastly different
due to the brain injury she suffered in the accident. There were also physical
injuries including a whiplash and a broken tooth and bridge that required
replacement.

[88]        
Mrs. Wong argues that there should be no discount in damages because she
is in her “golden years”. She argues that the impact of the injuries is more
profound due to her age because as an elderly person any restriction on her
activities is more serious: Etson v. Loblaw Companies Limited (Real Canadian
Superstore), 2010 BCSC 1865 at para. 66.

[89]        
In terms of comparable cases, Mrs. Wong relies on Lines v. Gordon
& I.C.B.C., 2007 BCSC 757, varied on different grounds 2009 BCCA
106; Adamson v. Charity, 2007 BCSC 671; Dionne v. Romanick, 2007
BCSC 436; and McLeod v. Goodman, 2014 BCSC 839.

[90]        
Ms. Towns argues that the authorities relied upon by Mrs. Wong are not
comparable because they reflect the impact of severe brain injuries rather than
a mild traumatic brain injury. Ms. Towns argues that the award of $70,000 for
non-pecuniary damages in Adkin v. Grant, 2014 BCSC 1304, is more
reflective of Mrs. Wong’s circumstances. Further, Ms. Towns says that the
“Golden Years” doctrine works both ways because an elderly person will suffer
fewer years of pain than a young person who suffers a brain injury.

[91]        
In this case, there is no dispute that the mild traumatic brain injury
caused by the accident has led to a drastic reduction in Mrs. Wong’s quality of
life. Dr. Kiraly, Dr. Chow and Mr. Padvaiskas agree that her life now is vastly
different from the life she enjoyed prior to the accident. There is cogent
evidence from Mrs. Wong’s family about the drastic and rapid changes they have
seen in her. Before the accident, Mrs. Wong was more active and engaged in life
than most middle-aged people. Mrs. Wong also lived independently in her own
home and took on many responsibilities. She cared for her husband who has
Parkinson’s disease; she prepared meals, cleaned her home, did the laundry,
tended the garden, did all of the shopping and transported herself and her
husband wherever they needed to go. Outside of the home, she cared for her
elderly mother and participated in meditation workshops and classes. She
babysat her grandchildren. Mrs. Wong had a strong personality prior to the
accident. She engaged people in discussions and expressed opinions. She was
very close to her mother and to her husband and children. But this all changed
after the collision.

[92]        
Due to the deterioration in Mrs. Wong’s cognitive functioning, she can
no longer live independently. She requires 24-hour supervision and nursing
care. Mrs. Wong can no longer care for her husband or her grandchildren. She
requires assistance with all aspects of daily living. All of the things that
gave her pleasure in life have been taken from her. Moreover, Mrs. Wong has
suffered a drastic change in personality as a result of the progression of the
dementia symptoms. She no longer shows an interest in life’s activities or her
family members. Instead of engaging with people, Mrs. Wong appears vacant and
“not there”. She watches television and sleeps and if asked a question she
provides minimal yes or no answers. Her condition is permanent and it is
deteriorating. Slowly she is becoming deconditioned because she is not
interested in any type of physical activity. Rarely will Mrs. Wong go out with
her son or other family members. As a consequence, she is at risk for falls and
further injury and loss of function.

[93]        
Dr. Kiraly describes the prognosis for Mrs. Wong at page 13 of his
February 2015 Report:

… it is not likely that Mrs.
Wong’s cognitive status will improve. Degenerative changes will tend to
progress and produce more deficits which may manifest themselves as increasing
apathy, impulsive behavior and mood changes. … Some of the conditions which may
emerge would worsen the prognosis. These include poor nutrition, diabetes,
thyroid disorder, hypertension, Alzheimer’s disease and Parkinson’s disease.
As a result of aging, especially if there is self neglect (for example of
nutrition, safety, optimal exercise), increasing frailty will be possible. Poor
cognitive function and impaired insight will be an obstacle to management.

[94]        
Many factors must be considered in assessing non-pecuniary damages.
Compensation is designed to ameliorate the suffering and harm caused by the injuries
and to provide some solace. While the nature of the injury must be taken into
account, it is the impact of the injury on a particular plaintiff that is
determinative. In this case a mild traumatic brain injury is clearly not as
serious as a major brain injury that renders a person unable to walk or speak;
however, the impact of the mild traumatic brain injury on Mrs. Wong has been
devastating because it triggered a rapid onset of dementia symptoms that
reduced her cognitive function dramatically. The impact of this rapid decline
in cognitive function is evident when the court compares Mrs. Wong’s lifestyle
and behaviour before the accident with her life now.

[95]        
There is no doubt that had Mrs. Wong been a younger person at the time
of the accident, the loss of cognitive function would have been more
devastating. However, I agree with the comments of Justice Fisher in Etson;
that is, Mrs. Wong’s loss of cognitive function could be viewed as more serious
due to her age because the quality of life becomes more important when there
are fewer years left to enjoy. In the end, however, these two aspects of the
“Golden Years” doctrine appear to be evenly balanced in the circumstances of
this case.

[96]        
I have considered the authorities cited by both parties. While they are
helpful in establishing a range of damages, each case must be decided on its
own facts in light of the factors identified by the authorities such as Stapley
v. Hejslet, 2006 BCCA 34 at para. 46. In this case, what could be
characterized as a relatively minor brain injury has led to a severe loss of
cognitive function and a dramatic personality change. The loss of enjoyment of
life experienced by Mrs. Wong is profound. I find a fair and reasonable amount
of damages for pain and suffering is $180,000 and I award this amount to Mrs.
Wong.

B.       Special Damages

[97]        
Ms. Towns does not dispute the items claimed by Mrs. Wong as special
damages. The special damages claimed include the cost of home nursing care,
chiropractic sessions, and mileage to the chiropractor, dental work for the
bridge and broken tooth, and prescription medications. Ms. Towns, however,
disputes the nursing costs related to Bill Wong and argues these are not
compensable.

[98]        
Mrs. Wong argues that part of the loss caused by the accident is the
loss of her ability to care for Bill Wong. I agree. Prior to the accident, Mrs.
Wong provided all of the care and assistance Bill Wong required due to his
Parkinson’s disease and advanced age and she can no longer provide this care as
a result of the injuries caused by the accident. Because prior to the accident
there was an established practice of Mrs. Wong’s care for her husband, the loss
is foreseeable and compensable in this tort action: Lynn v. Pearson,
[1997] B.C.J. No. 539 (S.C.); and Milliken v. Rowe, 2012 BCCA 490
at para. 29.

[99]        
Accordingly, I award the full amount of special damages claimed by Mrs.
Wong, including $3,913.56 for the nursing care provided in regard to Bill Wong
to date. In total the special damages awarded are $10,377.

C.       Cost of Future Care

[100]     Mrs. Wong
claims the costs of future care based on the following scenario. Mrs. Wong and
her husband remain in their home for one year, receiving in-home care, and then
move to a long-term care facility. It is predicted that Bill Wong will survive
for a further four years and Mrs. Wong will survive for a further nine years.
The cost of future care based on this scenario, including required in-home care
and therapies, residential care, and medications, ranges from $882,991 to
$1,229,981. Mrs. Wong seeks the average of these cost estimates: $1,000,000.

[101]     Ms. Towns
does not dispute that the award for future care is warranted and should include
medications, residential home care, and in-home care and therapies prior to
moving to residential care.

[102]     However,
Ms. Towns argues that the cost of future care should be discounted in two
respects. First, the cost of residential care for Bill Wong should be
discounted because the accident only accelerated his move to a residential care
facility, it did not cause this to become a necessity. Second, the cost of
residential care for both Mrs. Wong and Bill Wong should be discounted by 50%
because the expense of housing and food is included in residential care and
would have been incurred in any event.

[103]     Mrs. Wong
is entitled to damages for the cost of future care that is reasonable and
medically necessary as a result of the injuries sustained in the accident: Tsalamandris
v. McLeod, 2012 BCCA 239 at para. 62. Included under this head of
damages are the costs of future care for Bill Wong that replace the care
provided by Mrs. Wong prior to the accident. In essence, the award compensates
Mrs. Wong for her entire loss, including the loss of the ability to provide
care for Bill Wong.

[104]     I believe
it is reasonable that Mrs. Wong and her husband will remain in their own home
for a period of one year from the date of trial. It is reasonable that they
have a period to adjust to the prospect of leaving the family home where they
have resided for a very long time. I accept the opinion of Mr. Padvaiskas that
it would be a mistake to delay this move any longer with the result that the
transition may well occur at a time when Mrs. Wong’s condition has deteriorated
to the extent she cannot adjust to the new environment.

[105]     Further,
the in-home nursing care for both Mrs. Wong and Bill Wong is compensable during
this one-year period without any discount for the possibility that Bill Wong
would have been moved to a residential care home without Mrs. Wong regardless
of the accident. The evidence is uncontradicted that Mrs. Wong was very happy
living in her own home and had not even been willing to consider a move to a
smaller home. While Bill Wong is quite frail and requires help with dressing
and bathing, there is no evidence that Mrs. Wong could not have provided this
care or provided it with some assistance from Todd Wong but for the
accident-related injuries. I find it is mere speculation to assume that Bill
Wong would leave his home during this one-year period. As a consequence, I find
the yearly cost of $68,292, which is the higher estimate calculated by Mr.
Padvaiskas, to be reasonable in the circumstances.

[106]     Turning to
the cost of residential care, there are a number of issues involved in the
assessment.

[107]      First,
the cost must be determined based on Mrs. Wong and her husband remaining
together. Both Dr. Kiraly and Mr. Padvaiskas agree that it would be detrimental
to Mrs. Wong’s mental health if she were to be separated from her husband of
over 60 years. They mutually support each other’s need for stimulation as well
as love and affection. Without her husband, Mrs. Wong’s cognitive functioning
would decline even further due to her social isolation.

[108]     Second, I
do not accept that a reduction in the costs awarded is warranted based on the
contingency that Bill Wong would have been moved to a residential care facility
at some later date regardless of the accident. Given the bond between Mrs. Wong
and her husband, it is highly unlikely that he would have moved away from the
family home without his wife and she was determined to remain living
independently. Only Bill Wong had considered moving to a smaller home. While it
is likely that Bill Wong’s health would have declined as his Parkinson’s
disease worsened over time, it cannot be assumed that this would necessitate a
move to a residential care facility. In-home care could be secured to
supplement the services that Mrs. Wong was able to provide for her husband at a
substantially reduced cost.

[109]     Third, the
life expectancy of Mrs. Wong and Bill Wong is a factor to be considered when
assessing the cost of future care. Statistics Canada reports that a female in
British Columbia who reaches the age of 65 is predicted to have a life
expectancy of a further 22 years. In other words, a total life expectancy of 87
years. The life expectancy of a male aged 65 is a further 19.2 years or a total
life expectancy of 84.2 years.

[110]     In regard
to Mrs. Wong, it is common knowledge that genetic factors influence life
expectancy and on her mother’s side of the family the women have generally lived
past the age of 100. Of course, other intervening events may lessen a person’s
life expectancy. Whether Mrs. Wong’s life expectancy has been lessened as a
result of the accident-related injuries is a question not answered by the
evidence in this case. I would be reluctant, however, to reduce an award of
damages based on a finding that the defendant has reduced Mrs. Wong’s life
expectancy by her negligence. Based on Mrs. Wong’s pre-accident good health,
and assuming she is provided with proper nutrition and care in a residential
treatment facility, it is likely she will live past the average life expectancy
and until she reaches 90 years, or in other words a further six years after she
moves to a residential facility.

[111]     In regard
to Bill Wong, it is apparent that he has already lived well beyond the average
life expectancy because he is now 90 years old. However, he has a debilitating
illness that in its natural progression will cause his physical health to
deteriorate. His physical frailty may lead to falls, which will reduce his life
expectancy further. Nothing is known about longevity in his family. Assuming he
is provided with appropriate care in a residential facility, it is likely that
Bill Wong will live a further three years after he moves to a residential care
facility or until he reaches 94.

[112]     Fourth,
Ms. Towns argued that the cost estimates provided in Mr. Padvaiskas’ report
were at the high end of the range; however, there is no evidence that his
figures do not represent the average cost of private residential care
facilities in the Lower Mainland. Indeed, Mr. Padvaiskas compared the estimates
in his report to the statistics published by RBC Dominion Securities regarding
average residential care facility costs and he found the cost of the Sunrise facility
in North Vancouver was consistent with other facilities.

[113]     Lastly,
Ms. Towns argues that the cost of future care in a residential facility should
be discounted by 50% because the total cost includes housing and food that
would have been incurred despite the accident. Mr. Padvaiskas’ report
identifies the cost components that make up the total cost of residential care.
The base cost for room and board is $150 to $170 per person per day depending
on whether they choose a studio or one bedroom option. There is an additional
fee for care support that varies with the level of care required. Given Mrs.
Wong’s present health and that of Bill Wong, Mr. Padvaiskas opined that she
would require a level two care at $76 per day and he would require a level one
care at $37 per day. In addition to the level of care fee, there is a
medication support fee which ranges from $15 per day to $25 per day depending
on the extent and schedule of medications.

[114]    
The yearly cost of these three components are estimated for both Mrs. Wong
and Bill Wong as follows:

1.       Base cost: $109,500
to $124,100;

2.       Care level fee:
$13,870 to $41,245; and

3.       Medication
support fee: $10,950 to $18,250.

[115]     While the
base cost for room and board is by far the largest cost component, it is not
apparent that these costs reflect what Mrs. Wong and her husband now pay for
food and housing. Mrs. Wong and her husband require the 24-hour care and
supervision of a residential care facility due to the injuries caused by the
accident. Thus if there is a greater cost associated with food and lodging in a
care facility compared to the costs of living independently, the defendant must
bear that cost. In other words, while there is an overlap in expenses for room
and board, Mrs. Wong and Bill Wong should not be forced to pay more for these
costs than they would normally have paid but for the accident. It is difficult
to estimate Mrs. Wong’s living costs absent evidence of what they actually
spend each year; however, the Court must do the best it can to arrive at a reasonable
estimate of these costs. Having regard to the nature and location of their
home, and the general cost of food for two elderly persons, I estimate that
Mrs. Wong and her husband likely pay roughly 30% of the base cost estimated by
Mr. Padvaiskas.

[116]     Accordingly,
the range of yearly base cost recoverable by Mrs. Wong is between $76,650 and
$86,870 (the base cost minus 30%). Mrs. Wong and her husband have lived in a
large home for many years. They should not be required to squeeze into a studio
apartment. Thus I find the higher cost is reasonable.

[117]     The care
level fee is up to the facility to decide; however, it is apparent from the
expert medical opinions that Mrs. Wong’s cognitive functioning and her physical
health are likely to decline in the future. Bill Wong’s Parkinson’s disease
will also lead to further physical health deterioration. Accordingly, I find
the upper range of the estimate for this fee is reasonable at $41,245 per year.

[118]     On the
other hand, neither Mrs. Wong nor Bill Wong has complicated medications to
administer. Thus it is reasonable to award the lower range estimate of $10,950
per year for the medication support fee.

[119]     Thus the
yearly cost of residential care for the first three years (based on the life
expectancy estimates, and that Bill Wong will reside with Mrs. Wong for three
years) is 3 x $139,065 ($86,870 + $41,245 + $10,950) = $417,195. The yearly
cost of residential care thereafter for solely Mrs. Wong for a further three
years is 3 x $87,965 ($54,750 + $27,740 + $5,475) = $263,895. The total cost of
residential care awarded is ($417,195 + $263,895) = $681,090.

[120]     Turning to
the cost of medications, Mrs. Wong currently spends between $704.45 and $755.55
per year. Mr. Padvaiskas notes that she may be entitled to a subsidy from
Pharmacare and in the future her medications may change resulting in a possible
increase in cost. These factors tend to cancel each other out in terms of the
future cost estimate. Accordingly, I find it is reasonable to assume Mrs. Wong
will continue to spend the upper range of $755 per year for medications. The
cost of medications for seven years (based on her life expectancy estimate) is
7 x $755 = $5,285.

[121]    
Accordingly, the total awards for the cost of future care are as
follows:

1.       One year of in-home care and services:
$68,292;

2.       Three years of residential care for Mrs. Wong
and Bill Wong and a further three years of residential care for Mrs. Wong
alone: $681,090;

3.       Seven
years of medication expenses for Mrs. Wong: $5,285.

[122]     The total
amount estimated for the cost of future care is $754,667. These amounts must be
adjusted to reflect present value. The parties shall be responsible for this
calculation and I retain jurisdiction should there be a dispute about this
issue.

D.       Interference with Homemaking Capacity

[123]     The evidence
establishes that before the accident Mrs. Wong was the primary caretaker for
the family home; she did the cooking, cleaning, laundry and gardening. She did
the grocery shopping and took care of all the household bills and necessary
banking. After the accident, Todd Wong took over these responsibilities for his
mother. When the care aids were hired, they also did light housekeeping as part
of their duties. Bill Wong did not do housekeeping chores due to the physical
limitations caused by Parkinson’s disease. The expert medical opinions
regarding Mrs. Wong’s prognosis for the future clearly show that she has
permanently lost the ability to perform the housekeeping tasks that she
regularly did before the accident.

[124]     In McTavish
v. MacGillivray, 2000 BCCA 164, the Court of Appeal concluded that past
loss of housekeeping capacity should be characterized as part of general
damages. The lost ability to carry out this work may be valued by replacement
cost or opportunity cost: per Huddart J.A. at para. 68. It is only where a
cost is actually incurred prior to trial that the loss of housekeeping function
is compensated as special damages. In this case, the replacement cost approach
is more appropriate because there is some evidence of this cost as measured by
the charges for homecare workers who did light housekeeping tasks. In
calculating an amount for this loss, there must be restraint so as not to
inflate damage awards and a deduction should be made for housekeeping costs
paid as special damages. Bearing in mind the loss has occurred over a period of
three years since the accident, the nature of the duties performed by Mrs.
Wong, the pride she took in being a meticulous housekeeper, and the amount
awarded for housekeeping services under special damages, I find an additional
$5,000 should be added to general damages under this heading of loss.

[125]     In regard
to future loss of housekeeping services, McTavish supports their
calculation as a separate head of damages: Huddart J.A. at para. 43. It
was left up to the trial judge to determine the most appropriate means of
valuing the loss based on the facts of a particular case. The factors relevant
to the valuation of the future loss of housekeeping services include Mrs.
Wong’s advanced age. It is a real and substantial possibility that as she aged
Mrs. Wong would no longer have been able to handle all of the housework and
care for her ailing husband. As she approached the age of 90, one would have
expected her to slow down and to require help for at least some of the
household chores she regularly performed prior to the accident. In evaluating
the loss, the replacement cost approach is appropriate in this case because
Mrs. Wong had been retired for many years and there is no readily comparable
means of assessing the lost opportunity cost for her. In regard to replacement
costs, it is reasonable to expect that a housekeeper would be employed for
eight hours per week, which approximates the time spent by Mrs. Wong doing all
of the household chores, at a cost of $15 per hour.

[126]     Further,
it is reasonable to project the replacement cost of these services over a one-year
period because of my finding that within a year of trial Mrs. Wong and her
husband will relocate to a residential care facility where the cost of
housekeeping has already been built into the base cost of the facility. To
award a further amount for the loss of housekeeping ability would, in my view,
duplicate the damage award for the cost of future care.

[127]     The
estimated replacement cost for a year is $6,240 (8 hours x 52 weeks x $15 per
hour). However, to avoid duplication with the cost of future care, there must
be a deduction for the light housekeeping work that will be performed by the
homecare workers during the year that Mrs. Wong and her husband remain in their
home. I estimate that the homecare workers will provide four hours of
housekeeping services per week. Deducting this amount from the replacement cost
estimate for one year leaves a total of $3,120 for loss of future housekeeping
capacity.

[128]     Accordingly,
I award a total of $8,120 for past and future loss of housekeeping function.
The future loss of housekeeping capacity must be adjusted to reflect present
value. The parties shall be responsible for this calculation and I retain
jurisdiction to address any dispute arising out of this issue.

E.       In-Trust Claim for Todd Wong

[129]     Mrs. Wong
makes a claim in trust with respect to the time Todd Wong has devoted to caring
for his father and doing housekeeping chores that Mrs. Wong performed before
the accident. While Ms. Towns does not dispute that Todd Wong performed these
functions up to the date of trial, she argues that the hours spent looking
after Bill Wong should be deducted from the claim. Further, Ms. Towns argues
that because Todd Wong lived with his parents at the time of the accident, and
continues to live there by choice, there should be no allowance for the fact
that he stays overnight in part to supervise his parents’ care.

[130]     The
parties agree that the factors to be considered when assessing an in-trust
claim are those described in Bystedt v. Hay, 2001 BCSC 1735 at para. 180,
aff’d 2004 BCCA 124. First, I find the services Todd Wong provided for both his
mother and father in the three years since the accident are directly related to
the injuries suffered therein. Todd Wong’s care of his father was only
necessitated by the inability of Mrs. Wong to continue caring for her husband
due to the injuries she sustained in the collision. Second, the services
provided by Todd Wong are clearly more than what could be expected of a son,
particularly a son who had a full-time job outside of the home. Eventually he
took over all of Mrs. Wong’s household duties pre-accident and, in addition,
her duties in regard to Bill Wong’s care. Further, the stress on Todd Wong from
performing these services for his parents while working at the library resulted
in two medical leaves of absence for a total of six months.

[131]     Turning to
the assessment of the amount of the in-trust claim, it is apparent that Todd
Wong’s wage rate at the library is considerably higher at $25 per hour than the
maximum cost of obtaining these services outside of the family. In this regard,
I find $15 per hour is the average rate charged by the current homecare
workers. However, a simple mathematical calculation based on the number of
hours worked is not appropriate in this case for a number of reasons.

[132]     First,
Todd Wong has resided with his parents for a number of years for a variety of
reasons. I do not accept that the only reason he is still residing with them is
due to the accident. Living at his parents’ home is a considerable financial
advantage to Todd Wong and his income from the job at the library limits the
type of accommodation he could afford. Further, prior to the accident he had no
concrete plans to move out of his parents’ home. As a consequence, it is not
appropriate to include the hours he sleeps at the family home as part of the in-trust
claim.

[133]     Second,
Todd Wong did not take over Mrs. Wong’s household duties generally until after
she had been admitted to hospital in September 2012 and thereafter the work he
did in the home gradually increased as Mrs. Wong’s condition worsened.

[134]     Lastly,
since October 2014, Todd Wong has had paid assistance from homecare workers who
not only provide care for his mother and father but also perform housekeeping
services. The homecare workers’ hours have increased over time, thereby
reducing the number of hours that Todd Wong must devote to housekeeping and the
care of his parents. Although he continued to manage the homecare services,
Todd Wong clearly experienced a reduction in his workload when these workers
were hired.

[135]     Taking
these factors into account, I find that a reasonable estimate of the value of
Todd Wong’s services should be based on an average of 20 hours per week since
the accident at $15 per hour. The total in-trust claim is therefore (20 hours
per week x $15 per hour x 52 weeks x 3 years since the accident) $46,800.

F.       Management Fee

[136]     Dr. Kiraly
and Dr. Chow both agree that Mrs. Wong is unable to manage her own medical and
financial affairs as a result of the cognitive deficits she has developed due
to the accident-related injuries. Dr. Kiraly recommended a financial power of
attorney and a health care proxy decision-maker who would make decisions about
her medical treatment in the future. It is clear, based on the expert opinion
evidence of Dr. Kiraly, that the dementia symptoms exhibited by Mrs. Wong are
permanent and will worsen over time. Thus I find that the loss of the ability
to manage her financial interests and her medical condition was foreseeable and
a direct result of the injuries caused by the accident.

[137]     It is
common for family members to make financial, as well as medical, decisions for
their aging parents through a power of attorney. However, family members do not
necessarily have the training and expertise to make financial and medical
decisions. Awarding a management fee to cover the cost of seeking such advice
is thus reasonable in the circumstances.

[138]     In my
view, a reasonable management fee for the purpose of seeking financial and
medical guidance for Mrs. Wong is $5,000.

SUMMARY

[139]     In
summary, I make the following awards:

[140]     The award
for future loss of homemaking capacity and the cost of future care figures have
not been adjusted for present value. I ask the parties to come to an agreement
regarding this calculation before the order is entered.

[141]     The
parties shall remain responsible for coming to an agreement on the tax gross up
on the award.

[142]     There
shall be an order for prejudgment interest on the special damages.

[143]     Mrs. Wong
is entitled to costs at Scale B.

[144]     I retain
jurisdiction to resolve any issue arising out of this judgment.

“Bruce J.”