2008 BCCA 462 Uhrovic v. Masjhuri

Docket: CA34407

Between:

Miroslav Uhrovic

Respondent

(Plaintiff)

And

Tommy Masjhuri

Appellant

(Defendant)

Before:	The Honourable Madam Justice Ryan
	The Honourable Mr. Justice Bauman
	The Honourable Mr. Justice Groberman

J.W. Marquardt and G.P. Brown	Counsel for the Appellant
R.J. Falconer, Q.C.	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
12 September 2008
Place and Date of Judgment:	Vancouver, British Columbia
17 November 2008

Written Reasons by:

The Honourable Mr. Justice Bauman

Concurred in by:

The Honourable Madam Justice Ryan
The Honourable Mr. Justice Groberman

Reasons for Judgment of the Honourable Mr. Justice Bauman:

[1] Miroslav Uhrovic was rendered a paraplegic and has been confined to a wheelchair as a result of injuries he suffered when he was 29 years old.

[2] On 8 November 2001, Mr. Uhrovic, then aged 43, suffered injuries in a second accident. He brought a claim for those injuries and, in reasons pronounced on 9 August 2006 and 6 November 2006, the Honourable Madam Justice Gray made these awards:

· as to non-pecuniary damages $ 70,000

· as to the cost of future care 140,000

[3] The learned judge's reasons are indexed at 2006 BCSC 1209.

[4] In reasons pronounced on 24 July 2007 (indexed at 2007 BCSC 1096), Madam Justice Gray dealt with the defendant's application for a deduction from the cost of future care award of possible future Part 7 benefits, payable under s. 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. The defendant sought a deduction totalling $137,223.90. The trial judge allowed only a nominal deduction of $1,000.

[5] The appellant on this appeal attacks the cost of future care award and the failure of the trial judge to allow a meaningful deduction for future Part 7 benefits.

[6] As to the cost of future care award, the appellant submits that the trial judge made a fundamental error in her finding of fact supporting any award under this head. In the alternative, the appellant submits:

… the Trial Judge erred in fact and law in using an incorrect discount rate in assessing the award for cost of future care and failed to take into account that the provision of future homemaker assistance was an hypothetical event. The trial judge treated the possibility of future care as if it was a certainty.

[7] I turn to deal with these alleged errors.

II.

[8] The award for cost of future care was based on the respondent's assertion that the accident has aggravated his pre-existing problem with spasms, which in turn causes him to take more time to perform his daily routines.

[9] The trial judge noted the evidence of Dr. Van Rijn, an expert in physical and rehabilitation medicine (at paras. 47-49):

[47] Dr. Van Rijn assumed that Mr. Uhrovic requires an extra hour or two of time to undertake his daily living activities since the second accident as a result of increased spasticity. He assumed that Mr. Uhrovic has no other changes in his ability to maintain his relative independence and daily routine. Dr. Van Rijn’s opinion is that pain can cause increased spasticity even though a person with a spinal cord injury may be unable to feel the pain.

[48] In Dr. Van Rijn’s opinion, it is reasonable to assume that the second accident is responsible for the increase in Mr. Uhrovic's spasticity, which has persisted over time. His condition has not changed appreciably for several years, which suggests that his spinal condition is stable.

[49] Dr. Van Rijn thought that it was reasonable that Mr. Uhrovic would require an extra hour or so of care a day to restore him to his level of function prior to the second accident. In his opinion, as Mr. Uhrovic ages, it is possible that the accident-related increased spasticity may become a bit more difficult for him to manage with respect to transfers, and he may require additional care. Dr. Van Rijn did not observe Mr. Uhrovic perform any transfers. He observed mild spasticity with occasional extension spasms when sitting.

[10] The trial judge concluded that the evidence established that Mr. Uhrovic requires an extra hour each day to perform his self-care as a result of the accident, and that further, Mr. Uhrovic is likely to require assistance from a caregiver in the future at a time earlier than would have been the case, but for the accident.

[11] The trial judge reviewed the expert evidence at trial touching on the issue of Mr. Uhrovic's life expectancy. She preferred the evidence tendered by the appellant in this regard. It suggested that Mr. Uhrovic would live for about 25 more years, that is, until about the age of 72½.

[12] At paras. 87 and 88 of her reasons, the trial judge concluded:

[87] The evidence demonstrates on a balance of probabilities that Mr. Uhrovic is likely to require one to two hours of homemaker assistance to perform his activities of daily living about a decade earlier than he would have if he had not suffered the second accident.

[88] The evidence shows that Mr. Uhrovic is an independent person who relies little on either the medical system or friends for assistance. He may have been able to live the balance of his life independently if he had not been injured in the second accident. As a result of the second accident, it is likely that at least for the last ten years of his life, he will require some assistance with his daily routine to maintain his health. It is likely that one to two hours of care from an attendant would provide him with the necessary assistance and that suitable care will only be available if he pays for a minimum of two hours a day.

[13] I observe that there appears to be a slight inconsistency here. It centers on the date when Mr. Uhrovic will likely require assistance "earlier than he would have if he had not suffered the second accident".

[14] In para. 87, the trial judge made the clear finding that Mr. Uhrovic will require that assistance "about a decade earlier" than he otherwise would have. But in para. 88 the trial judge appears to have concluded that the need for assistance arises "at least for the last ten years of his life". Without stressing the phrase "at least", this period could start at age 62½, that is, in 2020-2021.

[15] If the accelerated need for assistance begins in year one of the decade before Mr. Uhrovic's anticipated death, it is difficult to understand how this need then arises "about a decade earlier" than Mr. Uhrovic would have otherwise required such assistance. Are we to conclude, in the before-accident scenario, that Mr. Uhrovic would not have required assistance until sometime in the last year of his life? That is not consistent with the evidence before the trial judge, to which I will refer below.

[16] In my view, one must give effect to the trial judge's finding that the accelerated need for assistance arises "at least for the last ten years of his life" (emphasis added), that is, it starts at the latest at age 62½ but likely earlier than that.

[17] This is precisely what the trial judge appears to have concluded because she went on to calculate the cost of future care in this way (at paras. 94-96):

[94] The proper assessment of Mr. Uhrovic’s damages for the cost of future care is to consider the cost of two hours of home attendant care for Mr. Uhrovic for ten years.

[95] For the purposes of assessing Mr. Uhrovic’s future care costs arising from the second accident, the rate of $22.50 per hour as in 2006 should be used. This reflects the variety in the cost of such services quoted by Ms. Quastel and by Ms. Fischer. At that rate, being $45 per day, the annual cost of this additional care is about $16,500. The price of inflation on services of this kind will be roughly equal to the discounting appropriate to reflect present value. Ten years of care on that calculation would cost $165,000, whether Mr. Uhrovic needs it starting at age 62 ½ or at some other age. If his need for this assistance arises earlier, it is likely a reflection of the fact that he would have needed care even without the second accident, but at a later age.

[96] Future care costs are assessed, not calculated. This means that the court must select a figure that is appropriate in all the circumstances. Mr. Uhrovic is entitled to an award of $165,000 in respect of cost of future care.

[18] These paragraphs were the subject of a corrigendum issued by the trial judge on 6 November 2006. There, the trial judge noted that counsel had brought to her attention the provisions of s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. In the result, the trial judge replaced paras. 95 and 96 of her reasons with the following:

[95] For the purposes of assessing Mr. Uhrovic's future care costs arising from the second accident, the rate of $22.50 per hour as in 2006 should be used. This reflects the variety in the cost of such services quoted by Ms. Quastel and by Ms. Fischer. At that rate, being $45 per day, the annual cost of this additional care is about $16,500. Ten years of care on that calculation would cost $165,000, whether Mr. Uhrovic needs it starting at age 62 ½ or at some other age. If his need for this assistance arises earlier, it is likely a reflection of the fact that he would have needed care even without the second accident, but at a later age. The Law and Equity Act, R.S.B.C. 1996, c. 253 provides at s. 56 that the present value of damages including future care costs must be calculated using the prescribed discount rate. The applicable discount rate is 3.5% per annum, and is deemed to be the future difference between the investment rate of interest and the rate of general price inflation. On my calculations, ten years of care at $16,500 per year commencing at the conclusion of the trial using that discount rate is $137,223.90.

[19] From this it is clear, in para. 95, that the trial judge was calculating the cost of future care on the basis that the accelerated need for it arose "at the conclusion of the trial".

[20] That the trial judge must have concluded that the accelerated need for care arose much earlier than Mr. Uhrovic's sixty-third birthday, is supported by reference to para. 86 of her reasons:

[86] Ms. Quastel, the occupational therapist who testified on behalf of Mr. Uhrovic, testified that a person with spinal cord injuries would likely need assistance by the age of 50 to transfer into a car with a wheelchair. Ms. Fischer, the occupational therapist who testified on behalf of the defendant, testified that when she is doing a life care plan for a person with a spinal cord injury, she looks at increased support for the individual for each decade following the injury.

[21] This was said immediately before the trial judge stated her conclusion, that Mr. Uhrovic would require assistance "a decade earlier than he would have if he had not suffered the second accident". If Mr. Uhrovic would have required assistance in any event in his early 50s in the "no-accident" scenario, the accident can be seen to have accelerated that need to Mr. Uhrovic in his 40s, that is, at and immediately after trial.

[22] With that analysis of the trial judge's reasons on the issue, I advance to consider the appellant's complaints.

[23] First, the appellant submits that the trial judge "drew an erroneous conclusion from all of the evidence with respect to whether or not it takes the respondent an extra hour to do his morning routine".

[24] After reviewing the evidence given at trial at some length, the trial judge concluded (at paras. 78-80):

[78] Mr. Uhrovic's complaints of increased spasms and extended time for self-care are complaints for which there is little or no objective evidence, and so they require careful consideration.

[79] While there are some differences among the estimates Mr. Uhrovic gave to ICBC personnel regarding the time it took him to do his morning routine, the evidence did not demonstrate that these were intended to be precise estimates or exactly what activities were included in them. The most reliable information about the time Mr. Uhrovic took for his morning routine prior to the second accident is recorded in Dr. Hahn's report dated March 3, 1997. In that report, Dr. Hahn described the routine as lasting for about four and one-half to five hours. That was at a time when Mr. Uhrovic did more exercise as part of his daily routine than he has done since about 1998. This report is consistent with Mr. Uhrovic's testimony at trial.

[80] Mr. Uhrovic was a credible and forthright witness who did not exaggerate. On balance, I accept his evidence that the length of time it takes him to complete his morning routine increased by about an hour following the second accident.

[25] This was a finding of fact driven by the trial judge's assessment of Mr. Uhrovic's credibility. The appellant has simply not demonstrated any palpable and overriding error in the trial judge's conclusion.

[26] Then it is said that the trial judge erred in concluding that the second accident would accelerate the respondent's need for future care. The trial judge correctly recited the test for an award under this head of loss set out in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.). Again, the need for future care was a finding of fact based on the trial judge's review of the evidence which she recited at length in her reasons. In this respect, no reviewable error can be sustained.

[27] Potentially more problematic is the trial judge's actual assessment of the loss. The appellant submits that the trial judge made two errors here, first, in treating the need for future care as a certainty and, second, in calculating the award effectively from the date of the trial's conclusion. I have already discussed at length the controversy surrounding this latter point.

[28] I have engaged, as have the parties, in a close analysis of the trial judge's reasons on this aspect of the award. At the heart of the appellant's complaint is the apparent fact that the trial judge chose a multiplier that could not be sustained in the evidence. I have endeavoured to demonstrate that that is not so on a proper reading of the trial judge's reasons as a whole. But it bears observation that the trial judge, in assessing an award for the cost of future care, was not undertaking a mathematical calculation. As the trial judge stated, after drawing on the helpful arithmetic tendered at trial (at para. 96):

[29] As part of its statement in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205 at para. 21, concerning the general principles with respect to the assessment of damages for cost of future care, the Supreme Court of Canada observed the uncertainty and discretion inherent in future awards:

21 Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for future care as best they can. …

[30] That sentiment was echoed by the Court in Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315, at para. 19 when it repeated the often quoted phrase that “damages are assessed and not calculated”, and by this Court in Ha v. Fritzke, 1999 BCCA 667, 69 B.C.L.R. (3d) 326 at paras. 14-15, when it stated:

[14] A gaze into the future to determine what might happen is fraught with difficulty inherent in all prediction. The exercise of judgment required of a trial judge called upon to fix a reasonable amount for future care cannot be reviewed as if it were a mathematical calculation based on accurate measurements. All scenarios of the future are best seen as alternate possibilities, more or less likely depending on the value of the evidence supporting each.

[15] The uncertainty inherent in prediction is why ordinarily, an appellate court will not interfere with the assessment by a trial judge of a plaintiff’s need for future care when there is medical evidence to support the need, as there was here.

[31] In Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256, at paras. 24 and 28, this Court discounted the importance of mathematical steps involved in the calculation of damage awards, and emphasized that on appeal the reasonableness of the final compensation awarded was what was relevant:

24 Assessing damages in this area involves an estimate based on prophecies. Mathematical certainty is impossible in virtually all cases. …

28 I turn now to consider the defendant’s arguments on appeal. By way of general observation, I think that the defendant’s objections to this part of the judgment miss the point of the evaluative task facing the learned trial judge. He was to make an estimate of the loss using the guides available to him; he was not performing a computation. The defendant’s arguments unduly focus on the mechanics of the judge’s calculation and they fail to recognize that in the end it is the judge’s sense of what is fair compensation that matters. There is much more art than science in the process. Accordingly, on appeal any missteps that may have occurred in arriving at an award are unimportant if the figure falls within the range of reasonable compensation.

[Italic emphasis in original; underline emphasis added.]

[32] As well, this Court in Lee (Guardian ad litem of) v. Richmond Hospital Society, 2003 BCCA 678, 21 B.C.L.R. (4th) 127, cautioned that the role of calculations in future cost awards was merely as an aid and a guide to the assessment process, and that calculations should not be unduly stressed. At para. 45 Lambert J.A. said:

[45] ... I would like to say that this case represents a conspicuous example of applying mathematical calculations to supply a veneer of certainty to what is truly an exercise of judgment. The calculations start from at least two premises where an important application of judgment is first required. ... There is a large component of judgment and life experience involved in those conclusions. ... Precise numbers, to the nearest dollar, invite arguments such as those made in this case that the calculations were partially flawed, in some particular way. But the calculations are only guidelines and they remain so, flaws and all. Sometimes a flaw in the calculations may lead to an error in the assessment which may make the assessment itself clearly wrong. But often such a flaw will not affect the validity of the assessment, particularly where it is apparent that the calculation was used only as a guideline and not as a substitute for a true assessment. The ultimate consideration for a Court of Appeal is whether the assessment of damages, not the calculations, was clearly wrong in the ways discussed by the Supreme Court of Canada in Woelk v. Halvorson [[1980] 2 S.C.R. 430 at 435] and Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital [[1994] 1 S.C.R. 114 at para. 13].

[Emphasis added.]

[33] Even if the reasoning of the trial judge could be criticized on the ground that her reasons lack clarity on the issue of the likely date of the accelerated need for additional care, and the assessment of future costs which arose from that, or on the ground that she did not expressly take into account negative contingencies, in my view the judge's actual award, here $140,000, is reasonable in all of the circumstances.

III.

[34] This brings me to the issue of deductibility of potential Part 7 benefits.

[35] In his opening statement counsel for the appellant states:

The learned trial judge had assessed damages for the future home attendant care expenses in the amount of $140,000, but concluded that the Plaintiff's chances of obtaining Part 7 Benefits for the anticipated attendant care were very low and allowed a deduction pursuant to s. 83 in the nominal amount of $1,000 only.

The two reasons identified by the learned trial judge for her decision were that: (1) home attendant care expenses were not likely to fall within coverage under s. 88(2) of the Regulation; and (2) the Plaintiffs need for home attendant care might arise after the expiration of the limitation period applicable to claims for Part 7 Benefits.

[36] Before Madam Justice Gray the appellant argued that benefits payable under s. 88(2)(c) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, should be deducted from the cost of future care award. That section provides:

88(2) Where, in the opinion of the corporation’s medical adviser, provision of any one or more of the following is likely to promote the rehabilitation of an insured who is injured in an accident for which benefits are provided under this Part, the corporation may provide any one or more of the following:

(c) reimbursement to the insured for the costs of attendant care, other than care provided by a member of the insured’s family, where the insured has returned to and is residing in the community but is not capable of performing some or all of the tasks necessary to sustain an independent lifestyle, the amount of the reimbursement to be limited to the lesser of

(i) the monthly cost of a group residence, including a long term care facility, that would be appropriate to the care needs of the insured as determined by the rehabilitation team, and

(ii) the monthly cost of attendant care required by the insured as a result of injuries from the motor vehicle accident, the level and type of which will be determined by the rehabilitation team using the same standards and criteria applied under the Long Term Care Program of the Continuing Care Division, Ministry of Health, Province of British Columbia;

[37] The trial judge's analysis on this aspect of the issue is found in paras. 10-15 of her reasons:

[10] The defendant bears the onus of proving that Mr. Uhrovic is, or will be, entitled to the benefits which the defendant seeks to have deducted from the award for the cost of future care. Strict compliance with the statute is required. Uncertainty as to whether Part 7 Benefits will be paid must be resolved in Mr. Uhrovic's favour. See Lynn v. Pearson (1997), 55 B.C.L.R. (3d) 401 (C.A.), 111 B.C.A.C. 139 at para. 18.

[11] The task for the court is to estimate how much money in Part 7 Benefits, if any, Mr. Uhrovic is or would have been entitled to receive for the costs reflected in the future care award. To give rise to benefits under s. 88(2), ICBC's medical adviser would have to hold the opinion that the costs are "likely to promote the rehabilitation" of Mr. Uhrovic. The term "rehabilitation" is defined as follows in s. 78 of the Regulations:

"rehabilitation" means the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self sufficiency that, allowing for the permanent effects of his injuries, is, with medical and vocational assistance, reasonably achievable by him.

[12] There are two reasons why it is unlikely that Mr. Uhrovic will receive Part 7 Benefits which will pay for the future care costs reflected in the future care award.

[13] First, Mr. Uhrovic's future care costs for homemaker assistance to perform his activities of daily living will not likely fall within s. 88(2) of the Regulations. That section provides that ICBC may provide attendant care benefits where they are likely to “promote the rehabilitation of an insured”. The definition of “rehabilitation” in s. 78 refers to the restoration of an insured “in the shortest practical time … to a level of gainful employment or self-sufficiency … reasonably achievable by him”.

[14] Homemaker assistance for Mr. Uhrovic to perform activities of daily living is not likely to “restore” Mr. Uhrovic to greater self-sufficiency. Instead, such assistance likely will simply enable Mr. Uhrovic to conduct activities of daily living and thereby maintain his health and survive. Mr. Uhrovic will be dependent on the assistance. The assistance will not change Mr. Uhrovic's level of self sufficiency at all, let alone "in the shortest practical time". The future care award reflects costs for maintaining Mr. Uhrovic, not rehabilitating him.

[15] This conclusion is consistent with the result in Lynn v. Pearson. There too the court concluded that there was a low probability of Part 7 Benefits becoming available for rehabilitation.

[38] The appellant notes that the trial judge relied on Lynn v. Pearson (1998), 55 B.C.L.R. (3d) 401 (C.A.), affd (1997), 3 C.C.L.I. (3d) 175 (S.C.), and in particular, Mr. Justice Rowan's decision at trial where that judge had reference to a common dictionary definition of the word "rehabilitation" in concluding that only a nominal deduction under s. 88(2)(c) was justified. The appellant then submits:

The dictionary or common usage definition of rehabilitation, as set out in Lynn v. Pearson, differs significantly from the definition of rehabilitation in s. 78 of the Regulation. The common usage definition of rehabilitation involves the restoration or improvement of an individual’s physical condition, i.e. the personal ability of the individual to perform specific physical or mental tasks; the s. 78 definition of rehabilitation involves a individual’s ability to function generally in society, i.e. the ability to be self sufficient and be gainfully employed. The assistance of personal attendants to perform tasks that the individual is no longer capable of doing alone, where that assistance will not lead to an improvement in the individual’s ability to personally perform the task, will contribute to his or her “rehabilitation” under the s. 78 definition, but not under the common usage definition.

Unlike the trial judge in Lynn v. Pearson, the learned trial judge below cites the definition of “rehabilitation” in s. 78 of the Regulation which refers to the “restoration” of the insured to “the highest level of ... self sufficiency reasonably achievable by him”. The learned trial judge apparently interpreted the phrase “self sufficiency” to mean an individual’s personal ability to look after himself, and as the Plaintiff would be “dependent on the assistance”, it would not change his “level of self sufficiency at all...”. This is effectively the common usage interpretation of “rehabilitation” as taken from the Oxford English Dictionary by Rowan J. in Lynn v. Pearson.

[39] Lynn v. Pearson was appealed to this Court.

[40] Mr. Justice Finch (as he then was) noted the trial judge's reference to Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.), and continued (at paras. 17-19):

[17] The defendant says the learned trial judge made two errors in dealing with deduction of Part VII benefits. First, he applied the dictionary definition of "rehabilitation", rather than the definition provided in s. 78 of the Regulations. Second, he reasoned that if ICBC improperly refused to pay future benefits, the plaintiff would be left without judicial recourse.

[18] Although I do not subscribe to all of the learned trial judge's reasoning on the issue, I have not been persuaded that he reached the wrong conclusion. The defendant bears the onus of proving that the plaintiff is, or will be, entitled to the benefits which it claims to have deducted from the award for the cost of future care. Strict compliance with the requirements of the statute is called for. Uncertainty as to whether Part VII benefits will be paid or whether they would "match" elements of the tort award must be resolved in the plaintiff's favour.

[19] The evidence in this case does not support the result for which the defendant contends. In my view the learned trial judge correctly interpreted the reasons of this Court in Schmitt v. Thomson and applied them appropriately to the facts that he found. The estimate made by the judge of the plaintiff's entitlement to future Part VII benefits is not one with which, in my view, this Court should interfere.

[41] The Court's reference to a "match" between benefits payable and elements of the tort award has been overtaken by the Supreme Court of Canada's decision in Gurniak v. Nordquist, 2003 SCC 59, [2003] 2 S.C.R. 652.

[42] That said, I have concluded that what Mr. Justice Finch said of the result in Lynn v. Pearson is precisely what I would say of the result reached here by Madam Justice Gray. In that light, it is not necessary to consider the trial judge's alternative ground for refusing the deduction based on the limitation period prescribed by s. 103 of the Regulation.

[43] I should note that in argument submissions were invited on whether s. 88(2)(c) was indeed applicable to the facts at bar. It was noted, for example, that here the insured did not spend time in a rehabilitation facility and that therefore, he could not be said to have "returned to … the community" as contemplated by the section.

[44] It was suggested that the more relevant source of future benefits might be s. 88(2)(f): "funds for any other costs the corporation in its sole discretion agrees to pay".

[45] This section accords a broad discretion to the insurer to make payments in the future. In my view, the conclusion of the trial judge would have been the same if that was the authorizing section for the payment of future Part 7 benefits.

[46] I would not give effect to any of the grounds advanced and I would dismiss the appeal.

“The Honourable Mr. Justice Bauman”

I agree:

“The Honourable Madam Justice Ryan”

I agree:

“The Honourable Mr. Justice Groberman”

Citation:	*Uhrovic v. Masjhuri,*
	2008 BCCA 462