IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Dikey v. Samieian, |
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2008 BCSC 604 |
Date: 20080516
Docket: S045166
Registry: Vancouver
Between:
Murat Dikey
Plaintiff
And
Moe Samieian, Fahimeh Samieian, Dean Mailey,
Rhonda Lee Mailey, Moe's Classic Rugs & Home
Accessories Ltd., Moe's Home Collection, LLC,
425671 B.C. Ltd., 662535 B.C. Ltd., General Motors
Acceptance Corporation a.k.a. GMAC,
John Doe Owner #1, John Doe Owner #2
Defendants
And
Alliance Insurance Services Ltd., 1703 Holdings Ltd.,
Tebron Services Ltd. (formerly known as 332693 B.C. Ltd.)
doing business as Key Insurance Services,
Key Insurance Services (A Firm), Yusuf Tan doing business
as Tan Moving and Storage (A Firm)
Third Parties
Before: The Honourable Madam Justice Gray
Reasons for Judgment
| Counsel for the Plaintiff: |
M. Gianacopoulos |
| Counsel for the Defendant, Moe Samieian: |
I.C. Hallam |
| Counsel for the Defendants, Fahimeh Samieian, Moe's Classic Rugs & Home Accessories Ltd., Moe's Home Collection, LLC, 425671 B.C. Ltd., and 662535 B.C. Ltd.:
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G.F. Gregory |
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Date and Place of Trial: |
November 26-30, |
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Vancouver, B.C. |
INTRODUCTION
[1] The plaintiff, Mr. Dikey, grew up in Turkey and completed a university degree there. He came to Canada on a student visa.
[2] On June 16, 2004, when Mr. Dikey was 26 years old, he was standing in a roadway in West Vancouver, B.C. when he was struck by a Hummer sports utility vehicle driven by the defendant, Mr. Moe Samieian. Mr. Dikey suffered serious injuries as a result, including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to his neck and back. In terms of the impact on Mr. Dikey's employability and need for care, the traumatic brain injury is by far the most significant injury.
[3] Mr. Dikey's claim for damages proceeded to a 20-day trial at which both liability and damages were in issue. By the end of the trial, the only remaining parties were Mr. Dikey as plaintiff, and Mr. Moe Samieian ("Mr. Samieian") and Moe's Home Collection, LLC ("Moe's LLC") as defendants.
[4] One of the main issues at trial was whether Mr. Dikey's cognitive abilities will materially improve after surgery (through reducing his pain level), and following further psychiatric treatment. The defence also argued that Mr. Dikey failed to mitigate his damages by failing to proceed with surgery prior to trial.
[5] The international aspect of the case complicates assessment of Mr. Dikey's damages from the accident. Mr. Dikey argued that his loss of future earning capacity should be assessed on the assumption that it is most likely that, but for the accident, he would have completed a graduate degree in Canada or another western country and worked in a western country throughout his working life. The position of the defence is that it is unlikely that Mr. Dikey could have completed graduate work, and that, but for the accident, he likely would have returned to Turkey and spent his working life there.
[6] Mr. Dikey argued that his future care claim should be assessed on the basis of obtaining care in Canada. The position of the defence is that Mr. Dikey should and will return to Turkey following surgery on his jaw and possibly also on his wrist and knee, and that the assessment should reflect future care costs primarily in Turkey.
[7] Mr. Dikey testified in English without a translator. His father testified through an interpreter. His sister testified in English, with occasional assistance from a translator.
[8] Mr. Samieian did not testify at trial. The defence did not call any expert evidence at trial.
[9] There was no expert evidence about the likelihood that Mr. Dikey would be able to immigrate to Canada. There was no evidence about incomes earned in Turkey in the tourist industry. There was some evidence about the general distinction between the Canadian and Turkish economies, including the difference in the per capita gross-domestic product. There was no evidence about the cost of future care in Turkey. The small amount of evidence about the availability of future care in Turkey came from Mr. Dikey's father and his sister, and was based on their understanding about what was available.
FACTS
(a) Prior to the Accident
[10] Mr. Dikey was born in Turkey on April 13, 1978. His father believed that knowing English would be important for his children's future success. As a result, Mr. Dikey attended school that included instruction in English and required students to pass an entrance exam and pay tuition fees. Only about 30 percent of Turkish children attend such schools. The others attend government schools, which do not include English instruction.
[11] Mr. Dikey finished high school in 1996, when he was 18 years old. By then, he had developed an interest in working in the tourist industry. He wrote the country-wide university admission examination and qualified for one university, which did not offer the tourism and hotel management program of interest to Mr. Dikey. The exam is difficult and only about 20 percent of Turkish high school students qualify for university. Instead of attending the program he qualified for, Mr. Dikey spent a year doing further study and wrote the university qualifying examination again in 1997. Mr. Dikey also obtained a coaching certificate in body-building and fitness in July 1997.
[12] Following the second examination, Mr. Dikey qualified for the Anadolu University's four-year program in tourism and hotel management.
[13] Mr. Dikey attended Anadolu University for about four and one-half years. According to Mr. Dikey's sister, most students in Turkey take more than four years to complete a four year university program. English was not the official language of instruction. Mr. Dikey graduated from the program on February 6, 2002.
[14] Mr. Dikey struggled in some courses, failing four of them. He twice failed the hotel financial management course, completing it successfully in his final term. Mr. Dikey's grade point average for his four and one-half years of university was 2.06.
[15] Mr. Dikey was athletic and active in sports, including during his years at university. He played on the university basketball team. He was also active in tennis, running, weight-lifting, soccer and skiing.
[16] Before coming to Canada, Mr. Dikey obtained some work experience in Turkey. He spent the summer when he was 17 years old working as a receptionist at a hotel in Izmir. In 1998, in the summer after his first year of university when he was 20 years old, he worked at the front desk in the food and beverage department for a hotel in Antalya, Turkey. He spent the next summer as a receptionist and working in the food and beverage department at another hotel in Turkey. The following summer when he was 22 years old, he worked in a different location at a hotel in Turkey as a barman.
[17] Starting the summer before his final semester at university, Mr. Dikey worked for his father's company in Izmir. Mr. Dikey's father is an architect and his business included construction projects in Turkey and Afghanistan. After that, Mr. Dikey worked for a few months at the front office of a hotel in Bodrum, Turkey.
[18] Mr. Dikey enjoyed his summer jobs and other short-term positions in hotels. He was outgoing and social and enjoyed meeting people from various cultures and speaking to tourists in English. He wanted to travel and wanted to avoid a desk job involving lots of paperwork or computer work and little communication with people. He decided he would like to improve his English and pursue post-graduate work to improve his prospects in a career in tourism or business.
[19] Mr. Dikey wanted to go to Vancouver, B.C. to study tourism for several reasons. He understood that tourism was a major industry in the area, that Vancouver was safe, and the weather was warm relative to the rest of Canada.
[20] Mr. Dikey applied for a student visa to come to Canada. The evidence at trial included documents from a Canada immigration file. These documents appeared to record what an immigration official thought was the essence of an interview with Mr. Dikey. A note of January 28, 2003, suggests that Mr. Dikey said he wanted to attend an English as a second language program at the GEOS Language Academy in Vancouver for five and one-half months to improve his English and then return to Turkey with no extension to the visa.
[21] Mr. Dikey's father wrote a letter to the immigration authorities to convince them that Mr. Dikey did not intend to stay in Canada. He knew that a visa may have been refused if he wrote that his son would apply to immigrate to Canada.
[22] Mr. Dikey arrived in Canada on March 1, 2003, on a student visa requiring him to depart on August 31, 2003. Mr. Dikey attended the GEOS program and then decided he wished to study for the TOEFL exam. This exam, also know as the "Test of English as a Foreign Language", is a pre-requisite for most post-graduate programs in Canada if the applicant's previous degree was not taught in English.
[23] It appears that Mr. Dikey's student visa was extended on September 23, 2003 to October 31, 2004. What happened during the gap of September 1, 2003 through September 22, 2003 was not entirely clear in the evidence. Mr. Dikey applied for the visa extension on the basis he would attend a TOEFL course. The immigration files suggest that a term of the study permit was that Mr. Dikey must be in attendance at a college approved pursuant to the immigration regulations.
[24] Mr. Dikey enrolled in a TOEFL study program at the Immigrant Services Society’s Language Academy starting in October 2003, but within weeks concluded that it was too easy for him and too large a class, and that it would be better for him to study on his own. He remained in Canada studying on the computer and with books and in conversation. To some extent, he may have been taking a break and enjoying life in Canada. In any event, starting in October 2003, he did not attend school or work, and he spent time speaking English with friends, but also speaking Turkish with other friends. He enjoyed living in the Vancouver area.
[25] At some point just prior to the accident, Mr. Dikey asked his father for $4,100 in respect of English language instruction. It was not entirely clear how he intended to spend this money. Mr. Dikey's father sent the money, and testified that some of the funds could be used to hire a lawyer to assist Mr. Dikey in seeking to immigrate to Canada.
[26] By June 2004, Mr. Dikey had lived in the Vancouver area for a little over a year. He was 26 years old, energetic, active, social and athletic. He enjoyed listening to loud music. Many of his friends were from Turkey. A number of his other friends were also in Canada on student visas. He smoked about one-half pack of cigarettes a day. He was right-handed. He frequently spoke on the telephone or corresponded by email or using a web camera with his sister and parents, who lived in Turkey.
(b) The June 16, 2004 Accident
[27] Mr. Dikey has no memory of the accident or the period of about seven hours prior to it.
[28] On the day of the accident, Mr. Samieian was moving from his home at 2790 Chelsea Close in West Vancouver. Chelsea Close is a cul-de-sac running roughly north and south, with the closed part in the south. Mr. Samieian's home was at the south end of the cul-de-sac. The street itself is sloping, with the higher elevation at the north. The two homes at the south end, including Mr. Samieian's, had steep, north-south driveways between the street and the house, and the higher elevation was at the north end of the driveway where it met the cul-de-sac. There was a cube moving van parked near Mr. Samieian's home. Apparently, one of the movers was a friend of Mr. Dikey's, and Mr. Dikey was there to assist his friend with moving a piano.
[29] The defendant, Moe's LLC, admitted that it was an owner of a 2000 Hummer sports utility vehicle with a California registration. The Hummer was parked on Chelsea Close, about one hundred feet north of the moving van. The Hummer was facing roughly south, and the moving van was facing roughly north-east. Mr. Dikey was standing on the street, roughly between the moving van and the top of the steep driveways. Mr. Samieian could not see Mr. Dikey because the moving van was in the way.
[30] The weather was clear and the roads were dry. Shortly before 8:00 p.m., Mr. Samieian put the Hummer in reverse gear. The vehicle moved north and hit a Mercedes vehicle, which was parked to the north. Mr. Samieian then put the vehicle in drive gear. The engine made the sound of high revolutions, and went forward faster than Mr. Samieian expected or intended. The Hummer went roughly south, although Mr. Samieian steered it around the parked cube van. Mr. Dikey was standing at the top of the driveway facing north, towards the Hummer. The Hummer struck Mr. Dikey, who flew about 50 feet down the steep driveway, striking a concrete wall with his head. The Hummer continued roughly south, although not in exactly the same direction as Mr. Dikey, and smashed into one of the homes. The Hummer's left front wheel was torn off and the wooden frame house was damaged.
[31] Mr. Dikey lost consciousness at the scene. He was taken to Lions Gate Hospital by Emergency Health Services.
[32] There was no skid mark indicating that the Hummer had been braking before the collision. The Hummer did not have any mechanical defect apparent by visual inspection at the scene, such as something impeding the driving pedals.
(c) Following the Accident
[33] At the hospital, Mr. Dikey was treated for his injuries. He had suffered a closed head injury with scalp lacerations. He had bilateral wrist fractures, which were set at the hospital. He had bilateral jaw fractures and dental trauma, including the loss of five teeth, which was not particularly treated at the hospital. His scalp wound was debrided and sutured. He also suffered abrasions on his chest. He did not have lacerations on his wrist and palms, suggesting he did not injure his wrists sliding on the ground, and instead, injured them putting his hands out when the Hummer struck him.
[34] The Hummer was inspected on June 22, 2004 by Mr. McFarlen, who was qualified at trial to give evidence in the field of the mechanical state of repair of motor vehicles. The Hummer mileage was 1,979 kilometres. Mr. McFarlen concluded that the Hummer was in very good mechanical and physical condition consistent with its age and mileage with no specific evidence present of a sudden mechanical failure or malfunction. However, Mr. McFarlen's inspection was limited by the vehicle's impact damages. He was unable to properly test the brake pedal application.
[35] Mr. Dikey was discharged from the hospital on June 23, 2004, about a week after the accident. Friends took Mr. Dikey to his home. Mr. Dikey had casts on both wrists and dressings on his wounds. He received home care until about July 8, 2004. The home care service provided cleaning, shopping and cooking and other assistance.
[36] After the accident, Mr. Dikey continued to speak or email his sister and parents in Turkey. Initially, Mr. Dikey discussed his injuries with his sister, but he tried to hide them from his parents. His father found out, but did not tell Mr. Dikey's mother, instead arranging for them to visit their son. Mr. Dikey's parents came from Turkey to Vancouver in early July. Mr. Dikey's father stayed about two months, leaving in September 2004. His mother stayed about four months, leaving in November 2004. Mr. Dikey's parents helped their son generally, taking him to medical appointments and then moving his apartment to downtown Vancouver where he was closer to medical specialists.
[37] Mr. Dikey started receiving physiotherapy treatment from Ms. Martens on August 9, 2004. He saw her roughly weekly, except when he was out of Canada, until the spring of 2007.
[38] In August 2004, Dr. Vaisler, a specialist in orthopaedic and hand surgery, discussed possible wrist surgery with Mr. Dikey. He also discussed the option of Mr. Dikey pursuing rehabilitation first, which is what Mr. Dikey did.
[39] Mr. Dikey started seeing Dr. Melck, a psychiatrist, on October 21, 2004. Dr. Melck diagnosed Mr. Dikey as having a major depressive episode, together with some features of post-traumatic stress disorder, anxiety disorder, and post-concussion disorder as a result of his injury. Dr. Melck thought Mr. Dikey was functioning at less than 40 percent of his full functioning ability.
[40] In September 2004, Dr. Blachut, an orthopaedic surgeon, wrote a letter to Mr. Dikey's family doctor recommending surgery on Mr. Dikey's right wrist, and rehabilitation for his left wrist and right knee.
[41] On December 22, 2004, Mr. Dikey was referred to the Acquired Brain Injury Program at the GF Strong Rehabilitation Centre in Vancouver.
[42] On February 8, 2005, Mr. Dikey started receiving occupational therapy from Ms. Ziebart. At that time, he was not on any particular schedule and was sleeping up to 18 hours per day. Initially, Mr. Dikey saw Ms. Ziebart twice weekly for occupational therapy, and in addition, she attended doctor's appointments with him to assist him in understanding and remembering the information and following recommendations.
[43] Ms. Ziebart also supervised a rehabilitation assistant, who developed a gym program for Mr. Dikey. The rehabilitation assistant met with Mr. Dikey two to three times a week for one or two hours every session.
[44] In February 2005, Mr. Dikey began taking Ritalin to deal with his low energy, fatigue and cognitive problems, but it sometimes caused him to stay awake too late.
[45] Mr. Dikey returned to Turkey for about the month of April 2005. While there, he underwent testing, including x-ray, MRI and CT scans. He brought his TOEFL books on the trip, and his mother tried to help him study, but with little success.
[46] When Mr. Dikey returned to Vancouver, Ms. Ziebart did not notice any significant change in his cognitive functioning. Mr. Dikey struggled to return to a regular sleep routine.
[47] On May 26, 2005, Mr. Dikey and Ms. Ziebart met Dr. Matthew, an oral surgeon, and discussed surgery including re-breaking Mr. Dikey's jaw. Mr. Dikey was very concerned about the risk of disrupting the facial nerve, and the risk that there might be a period when his eye and facial and mouth muscles would not work properly. Ms. Ziebart prepared a summary of what Dr. Matthews had said so that Mr. Dikey could consider it and discuss it with his parents. This summary does not quantify the degree of risk or the likelihood of a successful outcome.
[48] In June 2005, Mr. Dikey was advised to perform exercises for his knee problems.
[49] In July 2005, Mr. Dikey decided not to proceed with jaw surgery at that time.
[50] Ms. Ziebart was on vacation commencing August 1, 2005. Mr. Dikey declined to see another occupational therapist while she was away.
[51] On August 17, 2005, Mr. Dikey left Vancouver for Turkey for the purpose of attending his sister's wedding on September 10, 2005. He intended to return to Canada shortly following his sister's wedding.
[52] While in Turkey, Mr. Dikey encountered a problem regarding military service. As a Turkish man, he was required to complete one to six months of military service, although he would not be required to do so until he had finished certain education. Mr. Dikey was supposed to provide certain information to the military authorities, which he did not realize until he returned to Turkey. He was not permitted to leave Turkey until this was straightened out.
[53] While he was in Turkey, Mr. Dikey's Canadian student visa, which had been extended to October 31, 2004, expired. This required him to deal with Canadian immigration officials before he could return to Canada.
[54] The evidence was not entirely clear about what medical treatment, if any, Mr. Dikey obtained during the seven-month period that he was in Turkey. He had some trouble obtaining the Ritalin that had been prescribed for him in Canada, and he reduced his dosage to cope with the medication shortage.
[55] In early 2006, Mr. Dikey applied for a visa to return to Canada on the basis of his need for medical treatment in Canada. Mr. Dikey's father wrote a letter to the Canadian immigration authorities, which sought a two-year visa. Mr. Dikey's father also referred to trying to have Mr. Dikey complete his treatments and surgeries as soon as possible, on the basis that his living expenses were being paid by his father, and that returning Mr. Dikey to Turkey would make it financially easier. The notes of the immigration authorities suggest they believed Mr. Dikey needed surgery on his right wrist and right jaw and therapy.
[56] Mr. Dikey obtained a visa and returned to Canada around the beginning of April 2006.
[57] Ms. Ziebart met with Mr. Dikey on April 11, 2006. He was in poor shape at that time, in the sense that he was extremely disorganized, easily distracted, and had abnormal sleep patterns. His mood was improved, but he was still struggling with short term memory difficulties and other cognitive problems. Mr. Dikey told Ms. Ziebart that he did not want the facial surgery. He expressed a determination to avoid any more noticeable injuries to his appearance, such as from damage to his facial nerve. In May 2006, Dr. Locht recommended that Mr. Dikey see an orthopaedic surgeon about possible wrist surgery, and pursue injection treatments for his knee.
[58] Around this time, Mr. Dikey had high blood pressure, and underwent testing to determine the cause. Ms. Ziebart arranged dental appointments for Mr. Dikey, expecting that he would have teeth implants even if he did not pursue jaw surgery.
[59] Ms. Ziebart tried to organize an appointment to pursue wrist surgery for Mr. Dikey, but had trouble scheduling an appointment. The receptionist for Dr. Vaisler appeared reluctant to book an appointment for Mr. Dikey because of his history of missing appointments or arriving late, and because he did not have a current referral from a family doctor. Ms. Ziebart understood that knee surgery was not recommended for Mr. Dikey at that time.
[60] Ms. Ziebart left the private practice of occupational therapy in mid-June 2006 for personal reasons. By that time, Mr. Dikey had made small gains in using strategies like a day-timer and notepad for meetings with doctors, but he was not fully independent in using these aids. His cognitive functioning was still significantly impaired.
[61] Mr. Dikey was upset that Ms. Ziebart could not continue as his occupational therapist, and referred to having difficulty meeting new people.
[62] Ms. Bohl became Mr. Dikey's occupational therapist for the next four months, before she went on maternity leave. She tried to see Mr. Dikey twice a week over this period, but failed to do so. It appeared that she was only able to see him roughly once a week.
[63] Mr. Dikey saw Dr. Vaisler again in September 2006. Dr. Vaisler discussed the possible right wrist surgery again. It is not clear whether Dr. Vaisler provided figures to describe the likelihood of a successful result or the magnitude of the risks.
[64] Mr. Nuno has been Mr. Dikey's occupational therapist since October 2006. Mr. Dikey agreed to weekly sessions with Mr. Nuno, but told Mr. Nuno he wanted to do his gym program on his own and to go by himself to doctors' appointments. Mr. Nuno agreed.
[65] Mr. Nuno reintroduced Mr. Dikey to strategies to compensate for his memory loss, like calendars and notes. Mr. Nuno found that Mr. Dikey was unable to change the time on a watch and concluded a reminder watch was too complex for him.
[66] Mr. Dikey was unwilling to work with a new rehabilitation assistant, and insisted on waiting until his previous rehabilitation assistant became available.
[67] Mr. Dikey frequently forgot about his appointments with Mr. Nuno. When Mr. Dikey had a girlfriend who cued him about his appointments, he attended as scheduled.
[68] Mr. Dikey complained about headaches on most of the occasions Mr. Nuno saw him. Sometimes, he also complained of back, wrist and knee pain.
[69] Mr. Nuno observed that when support was available, Mr. Dikey improved modestly in his ability to record and attend functions. Mr. Nuno observed that Mr. Dikey's progress declined when he missed appointments or failed to take his medication, or was overwhelmed.
[70] In August 2007, Dr. Goldstein, an oral and maxofacial specialist, assessed Mr. Dikey and recommended jaw surgery. Dr. Goldstein's report is described in more detail below.
[71] Dr. Vaisler provided a written report dated September 20, 2007, which is discussed in more detail below. It recommends surgery for both Mr. Dikey's right wrist and right knee.
[72] In October 2007, Mr. Nuno recommended that Mr. Dikey receive assistance from a rehabilitation assistant five days a week for about two to three hours a day to help Mr. Dikey with community integration, access to courses and medical appointments, and meal planning and preparation. Mr. Nuno also recommended that a home care worker provide basic meal preparation of one to two meals a day. Mr. Nuno thought it would be ideal for Mr. Dikey to have a room-mate or live in a group home or with family. Mr. Nuno recommended that Mr. Dikey receive a gym pass and work under the direction of a kinesiologist or rehabilitation assistant three days a week. Mr. Nuno recommended that Mr. Dikey receive two hours per week of direct intervention from an occupational therapist and two hours per week of case management.
[73] Mr. Nuno observed that Mr. Dikey gained 10 to 20 pounds over the period of about October 2006 through June 2007, which was when Mr. Dikey did not have appointments with a kinesiologist.
[74] Mr. Dikey showed up for only seven of 14 scheduled appointments with a rehabilitation assistant in the four month period between July 26 and November 19, 2007. In that period, Mr. Dikey attended only two scheduled occupational therapy sessions.
[75] Mr. Nuno wrote letters on behalf of Mr. Dikey for immigration purposes. Mr. Nuno's letters implied that surgery was scheduled when it was still just under discussion, and set out how much occupational therapy he thought was appropriate for Mr. Dikey. The letter suggested that Mr. Dikey was attending occupational therapy more regularly than he was.
[76] Mr. Dikey has remained in the Vancouver area since about April 1, 2006. He mostly sits at home watching TV or playing video games or communicating on the internet with friends. He smokes about 1½ packages of cigarettes a day. He sleeps a lot and goes to medical appointments. He is bothered by loud music, loud voices and bright lights. He is anxious when he is in a car or meeting new people.
[77] About a week prior to the commencement of the trial, Mr. Dikey signed a consent form for jaw surgery. The purpose of the surgery is to graft some of Mr. Dikey's hip bone onto his jaw to facilitate implanting replacement teeth. Mr. Dikey anticipates a three-month wait for the surgery, which would proceed in stages over about one year.
[78] At trial, Mr. Dikey had not made a decision about whether to have wrist surgery.
[79] Also, about a week prior to the commencement of the trial, Mr. Dikey obtained a visa permitting him to remain in Canada for one year for the purpose of obtaining medical treatment. The immigration authority's notes suggest they understood that Mr. Dikey was undergoing treatment in Canada for reconstruction of jaw, teeth and wrists. The notes say it is unclear how long Mr. Dikey will be receiving treatment and when actual surgeries will take place.
[80] Mr. Dikey's father was 60 years old at the time of trial and had a heart condition.
[81] Mr. Dikey's father testified that he researched the services available for Mr. Dikey in Turkey. He testified that there were no ongoing brain rehabilitation programs there, and the treatment focussed more on medication. He testified that there are no coordinating therapists in Turkey comparable to the occupational therapists in B.C. He testified that Mr. Dikey would have to pay for all the services he obtained, because insurance is available only for working or retired people, and so would not be available to Mr. Dikey. Mr. Dikey's father testified that he did not think Mr. Dikey could manage his own money, and that he would be able to manage investments for his son.
[82] Mr. Dikey was taking several prescription medications at the time of trial; Adderall (a stimulant), Effexor (an antidepressant), and Tylenol 3 (a pain killer). He also used non-prescription Tylenol as needed.
[83] The parties listed in the style of cause as third parties were the subject of third party claims by all defendants except Mr. Samieian personally. At the opening of trial, counsel advised that the third party claims against all the third parties other than Yusuf Tan had been dismissed by consent. On the first day of the trial, the third party claim against Yusuf Tan was discontinued without costs, with leave of the court. Also on the first day of trial, Mr. Dikey's claim against Fahimeh Samieian was dismissed by consent.
[84] On the second day of trial, by consent, Mr. Dikey's claim against GMAC was dismissed with costs. On the 19th day of trial, Mr. Dikey's claims against 425671 B.C. Ltd. and 662535 B.C. Ltd. (collectively, the "Numbered Companies'), and Moe's Classic Rugs & Home Accessories Ltd. ("Moe's Classic Rugs"), were dismissed, by consent, but there remains a dispute about what order should be made as to costs. That question was adjourned for further submissions.
MEDICAL EVIDENCE
[85] The defence did not call any medical evidence. The defendants admit that Mr. Dikey suffered a traumatic brain injury and other injuries as a result of the accident. The only issue regarding Mr. Dikey's physical, mental and emotional condition is whether it might improve upon pain reduction through surgery and after proper psychiatric treatment.
[86] Mr. Dikey's position is that he is permanently disabled from work owing to his cognitive problems. Mr. Hallam, counsel for the defendant Mr. Samieian, argued that Mr. Dikey may have a residual ability to work part-time in a relatively simple job.
[87] The medical evidence will be reviewed in the following sequence:
(a) traumatic brain injury;
(b) psychological injuries;
(c) head and jaw injuries;
(d) wrist injuries;
(e) knee injury;
(f) soft tissue injuries to the neck and back.
(a) Traumatic brain injury
[88] Mr. Dikey suffered a traumatic brain injury as a consequence of the accident. The injury has seriously diminished his cognitive functioning, particularly his short-term memory. The issue on the evidence was to what extent, if at all, there is likely to be future improvement in Mr. Dikey's cognitive functioning.
[89] There was disagreement between the experts at trial as to whether Mr. Dikey's traumatic brain injury was mild, moderate or moderate to severe. Dr. Cameron, a neurologist, was of the opinion that Mr. Dikey sustained a mild traumatic brain injury or concussion. Dr. Schmidt, a neuropsychologist, would likely classify the traumatic brain injury as moderate. Dr. Stewart, a physical medicine and rehabilitation specialist, was of the opinion that Mr. Dikey sustained a moderate to severe traumatic brain injury.
i) Dr. Cameron, Neurologist
[90] Dr. Cameron opined that Mr. Dikey sustained a mild traumatic brain injury or concussion as a result of the motor vehicle accident. He found that Mr. Dikey’s symptoms of headaches, dizziness, sleep disturbance pattern, memory problems, decrease in concentration, mood swings, irritability, and easy distractibility were diagnostic of post traumatic brain injury or post concussion syndrome.
[91] In Dr. Cameron’s opinion, as a result of the multiple injuries that Mr. Dikey sustained in the accident, Mr. Dikey suffers from ongoing cognitive problems and has developed a chronic pain condition, which is ongoing. In Dr. Cameron’s view, Mr. Dikey's ongoing cognitive problems are, in part, due to the psychological deficit and the residual pain and discomfort as a result of his injuries. Dr. Cameron concluded that Mr. Dikey has been rendered completely disabled and will probably be permanently competitively unemployable due to his ongoing problems, particularly his residual cognitive problems.
[92] Although Dr. Cameron’s opinion was that Mr. Dikey is completely disabled, he did opine that it was possible that Mr. Dikey will improve to a certain degree with respect to his ongoing cognitive problems following further psychological intervention; however, any subsequent residual cognitive problems present following completion of psychological intervention would be residual to the traumatic brain injury and would, therefore, probably be permanent in nature.
ii) Dr. Schmidt, Neuropsychologist
[93] Dr. Schmidt saw Mr. Dikey on three occasions in September 2007, and administered several tests. Dr. Schmidt also reviewed numerous records and reports regarding Mr. Dikey and interviewed his sister. Dr. Schmidt observed Mr. Dikey to be vague in answers and to be extremely slow in responding, taking four to five times as long as Dr. Schmidt would expect.
[94] In Dr. Schmidt's opinion, Mr. Dikey showed significant disruption in virtually every area of cognitive functioning that was tested. Mr. Dikey also showed elements of both depression and anxiety. Dr. Schmidt concluded that Mr. Dikey's pattern of dysfunction most likely cannot be attributed to the brain injury that he suffered in the accident alone. Likely contributing factors in addition to the brain injury include pain, the disturbance of his sleep/wake cycle, the presence of significant emotional disruption in the form of anxiety and depression, and the presence of language and cultural factors.
[95] Dr. Schmidt concluded that, although Mr. Dikey may show some further improvement in the future, the prognosis is extremely guarded with respect to the likelihood that he will show sufficient functional improvement to be able to return to his academic pursuits. Dr. Schmidt considered that Mr. Dikey is not competitively employable. Dr. Schmidt could not propose any treatments that he believed would lead to a substantial improvement in Mr. Dikey's emotional and cognitive state. Dr. Schmidt wrote that the current treatment should be seen as being aimed at maintaining Mr. Dikey at his current level and preventing further psycho-social deterioration, which Dr. Schmidt considers a significant risk in a case like Mr. Dikey's. Dr. Schmidt recommended continued treatment by a psychiatrist and occupational therapist.
iii) Dr. Stewart, Physical Medicine and Rehabilitation Specialist
[96] Dr. Stewart's opinion, three years following the injury, was that Mr. Dikey continued to have pain in the areas of injury, and most significantly, cognitive, emotional and behavioural limitations arising from his traumatic brain injury. She referred to poor memory, decreased insight into the need to use compensatory strategies, and particularly a loss of initiation and motivation (frontal lobe brain functions), which continued to significantly impact his ability to function in all areas of his life.
[97] In Dr. Stewart's opinion:
(a) Mr. Dikey had probably plateaued in his recovery from his brain injury and will continue to experience all of his current problems indefinitely;
(b) the impact of Mr. Dikey's cognitive difficulties in the performance of simple tasks was very evident;
(c) Mr. Dikey remains disabled with regard to any employment because of his cognitive difficulties, and his disability is permanent;
(d) Mr. Dikey is dependent on others for day-to-day functioning and the situation is unlikely to change in the future, and he will therefore require on-going daily prompting, assistance with meal preparation and housekeeping, monitoring of his diet and assistance with financial management for the rest of his life; and
(e) Mr. Dikey's brain injury will continue to be the major problem limiting his functional abilities.
(b) Psychological injuries
[98] Dr. Melck, Mr. Dikey's continuing treating psychiatrist, sees Mr. Dikey every two to four weeks. Dr. Melck provided the following diagnosis and opinion in his report of September 17, 2007:
CURRENT DSM IV DIAGNOSTIC FORMULATION:
Axis I -
1. Mood Disorder due to a General Medical Condition - with Major Depressive-like Episode - in remission on medication;
2. Post-traumatic Stress Disorder - in remission;
3. Adjustment Disorder with Mixed Anxiety and Depressed Mood - chronic;
Axis II -
No diagnosis;
Axis III -
1. Traumatic Head Injury;
2. Post-Concussional Disorder;
3. Pain Syndrome - secondary to General Medical Condition;
Axis IV -
1. The major psychostressor relates to the persistent deficits from the motor vehicle accident with loss of function and quality of life;
2. Loss of primary support group.
Axis V -
GAF - 45 (current).
OPINION:
It is my opinion that the primary diagnosis at this point is a chronic Post-Concussional Disorder. Mr. Dikey suffered a severe closed head injury which resulted in a loss of consciousness, posttraumatic amnesia, persistent cognitive deficits in attention (concentration, shifting focus of attention), and memory (learning or recalling information). Accompanying the cognitive disturbances, he experienced persistent fatigue, disordered sleep, headache, dizziness, irritability, anxiety, depression, and affective lability, apathy, and a change in his personality that has shown no significant improvement over the past three years.
The posttraumatic Depression and Posttraumatic Stress Disorder symptoms of anxiety did improve with antidepressant medication and, in my opinion, depression and anxiety does not significantly contribute to his ongoing cognitive deficits. The reports of him crying for no reason at all and his low frustration tolerance and irritability, are symptoms of the closed head injury.
I have included a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. An essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors resulting in development of clinically significant emotional and behavioural symptoms. The sequelae of the motor vehicle accident have made day-to-day life extremely stressful. He has already lost two meaningful romantic relationships and much of his social network.
...
However, I disagree with Dr. Tessler's opinion that the depression is a significant contributor to his cognitive difficulties. In my opinion, the clinical Depression he suffered as a result of the posttraumatic head injury resolved with antidepressant medication. There are symptoms of depression and anxiety that he will experience in an ongoing way which will be reactive to ongoing psychostressors or as a consequence of fact of lability due to the closed head injury. These symptoms are likely to be transient and not reach the depth of a clinical Depression that could contribute to his cognitive difficulties. I would expect, however, that if he did discontinue antidepressant medication he could become more severely depressed, which would then exacerbate his ongoing cognitive difficulties.
Dr. R.N. Stewart, in his (sic) report of August 16, 2007, expresses the opinion, "There has only been a minor improvement in Mr. Dikey's symptoms arising from the June 16, 2004, motor vehicle accident, compared to my previous assessment of him two years ago. It has now been three years since his injury and he continues to have pain in the areas of injury and, most significantly, cognitive, emotional and behavioural limitations arising from his traumatic brain injury. Poor memory, decreased insight into the need to use compensatory strategies and particularly a loss of initiation and motivation continue to significantly impact his ability to function in all areas of his life. He has probably plateaued in his recovery from his brain injury and he will continue to experience all of his current problems indefinitely. On my recent assessment, the impact of his cognitive difficulties on the performance of simple tasks was very evident." I strongly agree with this opinion.
Mr. Dikey has had extensive intervention from J.R. Rehab Services Inc., and Mr. Ricardo Nuno (Occupational Therapist) in his report of July 26, 2007, lists the "Current Functional Issues":
· Physical: Fatigue, sleep dysfunction, wrist pain, jaw pain, physically de-conditioned, pelvic instability, lumbar pain.
· Cognitive: Limitations with memory, planning, organizing, attention, awareness, judgment, decision making, language, reasoning, abstract thinking, mental flexibility, calculations.
· Emotional/Psychosocial: Depression, isolation, limited social supports and interactions.
[99] In Dr. Melck's opinion, Mr. Dikey's prognosis for any meaningful improvement in his cognitive limitations is very guarded, if not poor, and Mr. Dikey will require medication indefinitely. In Dr. Melck's opinion, Mr. Dikey will benefit from ongoing psychotherapy (supportive and cognitive behaviour) indefinitely.
[100] Dr. Melck speaks English, but not Turkish. He suggested that psychotherapy would be more effective for Mr. Dikey if it were in Turkish, not English.
(c) Head and jaw injuries
[101] Mr. Dikey is missing five or six teeth. He is restricted in opening his jaw. Dr. Matthews first suggested jaw surgery in the spring of 2005, but Mr. Dikey did not agree to it until just prior to trial.
[102] Mr. Dikey was assessed by Dr. Goldstein on August 23, 2007. Dr. Goldstein's report, dated August 30, 2007, includes the following:
In my opinion, the MVC of June 16, 2004 caused bilateral mandible fractures, and the loss of teeth #11, 14, 15, 21, 41 and #38. My evaluation of this matter indicates and reveals my significant concern with a lack of written and radiographic documentation of the exact diagnosis and procedures and treatment planning involved in the initial care of this patient at Lion's Gate Hospital. There is no detailed operative report and I am specifically concerned that there appears to have been no attention to the fracture dislocation of the right mandibular condyle. It appears that this fracture was either ignored or missed and was not treated. I do not understand any explanation from my record review and the patient is unhelpful.
Post operative care following the jaw surgery appears to have been non-existent, and I note this brain injured patient appears to have had no timely or appropriate follow-up for his jaw status and condition following discharge from Lions Gate Hospital. Subsequent radiographs and records as well as the patient's status on current evaluation, indicates what is, in my opinion, a very difficult problem. The patient appears to have inadequate reduction and fixation for the left mandibular fracture and none for the right mandibular fracture which involves a situation with major jaw dysfunction as well as ongoing pain. The 3rd molar is now missing. I note an indication of a plan for surgical treatment of the untreated right mandibular fracture dislocation of the condyle, and notes of the patient refusing treatment, possibly related to fear of potential surgical complications. In my opinion, this is a very important issue as, in my discussions with the patient, he had no real understanding of what procedure was intended, what the side effects realistically could be, and he voiced inaccurate and irrational fears indicating a significant lack of understanding, and possibly an inability to make appropriate decisions.
In my opinion, Mr. Dikey requires additional surgical management after careful treatment planning. Full surgical radiographic work-up and evaluation, including model surgery, of the jaw status is required, and the patient likely will require refracturing the mandible on both sides and reconstruction of an adequate and functional jaw position. I would note that attempts to anatomically reposition the right mandibular condyle will be expected to be extremely difficult if not impossible, and removal of the proximal condyle/fragment may be necessary. Additional treatment planning contingencies would therefore be required.
In my further opinion, appropriate treatment planning for replacement of the teeth must follow jaw reconstruction, as sophisticated extensive and expensive tooth replacement procedures would be highly dependent upon a functional jaw and the ability to fit the teeth into a functional arrangement in jaw functions.
...
In my opinion, based upon the patient's clinical status at my evaluation, Mr. Dikey has a significant measurable impairment of the temporomandibular joint. Unless surgical treatment is performed, in my opinion, this will be a permanent impairment. I would rate the patient as having 50-75% of normal interincisal range of motion, corresponding to 5-7% impairment of the whole person. Mr. Dikey has between 0-33% of normal lateral excursion range of movement which rates a 4% impairment of the whole person. Impairment related to the subtotal loss of dentition, of 5 incisor or premolar teeth would be estimated to correspond to 15% impairment of the person, although satisfactory replacement would reduce this figure. Therefore, in my opinion, at present, Mr. Dikey has ratable impairment of 24-26% of the whole person relating to his jaw and dental status. This assessment is based upon the American Association of Oral & Maxillofacial Surgeons Guidelines to the Evaluation of Impairment of the Oral & Maxillofacial Region, March, 1997. Additional considerations for anatomical rating of impairment are unlikely as the patient does not describe any significant restriction to a liquid diet. I would also comment the AMA Guides to Permanent Impairment does not assign specific impairment value for pain, and chronic pain is not actually an impairment. An assessment regarding daily functions and the ability to carry out daily activities relating to orofacial pain may require assessment in the future.
In my opinion, Mr. Dikey's prognosis is guarded and fair at best. He requires a considerable amount of somewhat risky treatment and this is certainly seriously compromised by his brain status.
(d) Wrist injuries
[103] Mr. Dikey's main orthopaedic injuries were to his wrists.
[104] Mr. Dikey suffered fractures in both wrists, which were set in hospital. The fracture of his dominant right wrist was displaced and mal-united, an uncommon but recognized complication of surgery. Mr. Dikey is suffering restricted range of motion and pain as a result.
[105] Dr. Vaisler assessed Mr. Dikey, and provided a report dated September 20, 2007. That report includes the following:
As a result of the motor vehicle accident of June 15, 2004, he sustained a displaced extra-articular fracture of his distal left radius which required a closed reduction and percutaneous pinprick sensation. The fracture went on to heal in good position and his left wrist symptoms have resolved with no residual restricted range of motion. It is unlikely he will have any future significant pain or disability related to his left wrist as a result of the motor vehicle accident. ... It is unlikely he will have any future symptoms related to the triangular fibrocartilage, but this could not be entirely ruled out and needs to be kept in mind. A triangular fibrocartilage is a triangular shaped sling of tissue extending from the ulnar edge of the distal radius to the base of the ulnar styloid. It is often disrupted in association with fractures of the distal radius, and can be at risk of intermittent compression between the proximal carpal bones and the ulnar head with ulnar deviation stresses of the wrist. This consists of ulnar wrist pain, with scooping activities, repetitive ulnar deviation stresses such as hammering or shaking hands. Lifting with the forearm in neutral rotation, and forced wrist extension with the wrist in ulnar deviation.
With respect to his right wrist, he sustained a displaced extra-articular fracture of the distal right radius which required a closed reduction and percutaneous pin fixation. Although a good reduction was achieved at the time of surgery, and was present one week after surgery, the fracture went on to displace and subsequently mal-unite. This is an uncommon but recognized complication of treatment. The loss of reduction was noted approximately five weeks after the motor vehicle accident, and he was subsequently advised to proceed with a corrective osteotomy of his distal right radius to restore normal alignment of the distal radius and alignment of the distal radioulnar joint. Surgery has been discussed on multiple occasions with him, but he still remains reluctant to proceed. He has continued to complain of intermittent pain in his right wrist, mainly on the ulnar aspect, aggravated by pushing activities and forearm rotation with grip.
On examination of his right wrist, there is a loss of approximately 30° of wrist flexion compared to his left wrist, and this corresponds to the mal-union of his distal right radius of 300. His left wrist flexion has not changed significantly over the past 3½ years and is unlikely to change in the foreseeable future. He does, however, have a functional range of flexion and extension of his right wrist, and there is unlikely to be any significant disability resulting from the loss of right wrist flexion, except possibly with the use of his dominant right hand in awkward positions close to his body, where acute wrist flexion is required. The malunion of the distal radius, results in chronic strain of the dorsal capsular ligaments of his right wrist, with the wrist in neutral and flexed positions. This frequently results in intermittent dorsal wrist pain, which is best treated by doing a surgical osteotomy of the distal radius to correct the angulatory deformity.
With the malunion of the distal right radius, there is also mal-alignment of the distal radioulnar joint, resulting in restricted forearm rotation. As a result, there is a loss of approximately 10° of forearm pronation, which consists of rotating the forearm so that the palm is facing downwards, and there is a loss of approximately 20° of supination, which was the ability to rotate the forearm so that palm faces upwards. Although his right forearm supination has improved from 35° when seen on November 2, 2004 to 70° when I saw him on July 9, 2007, he is still restricted functionally, and has pain at the extreme of supination. The loss of supination makes it difficult to carry out activities such as receiving change due to the lack of compensatory movements. Although there is loss of pronation, it can usually be compensated for by moving the upper limb away from the body. It is unlikely that his painful lack of right forearm supination is going to improve significantly in the foreseeable future. Also there is definite risk of the mal-alignment of the distal radioulnar joint, resulting in chondromalacia and early degenerative changes in the distal radioulnar joint. This in fact may already be present.
He has undergone a bone scan of his right wrist on July 30, 2007, demonstrating an abnormality about the distal radiouinar joint and ulnar styloid. Although there is a little better than even chance that with the realignment of the distal right radius, he will regain almost full pain free forearm rotation, there is a definite risk that if he has already undergone some articular cartilage damage at the distal radioulnar joint, he may continue to complain of pain and restricted movement with forearm rotation. In that event, consideration may need to be given towards carrying out an arthroplasty of the distal right radial ulnar joint, at a later date if he was not managing. This would consist of either excising the right ulnar head, or fusing the right ulnar head to the distal radius and excising a 1 cm segment of ulnar neck to allow for forearm rotation. If degenerative changes in the distal radioulnar joint were noted on pre-operative x-rays of his right wrist, this procedure could be carried out at the same time as the distal radial osteotomy. Recent x-rays have not shown radiologic degenerative changes as yet.
Most of his right wrist symptoms at present are due to ulnocarpal impingement. Due to the dorsal tilt of the distal right radius, there is relative shortening of the radius, compared to the distal ulna and as a result, the proximal carpal bones are abutting against the ulnar head, most probably resulting in a tear of the triangular fibrocartilage. Marked narrowing of the joint between the proximal carpal bones and the ulnar head, was noted on the most recent wrist x-rays. This abutment is responsible for the ulnar sided right wrist pain. Symptoms from a torn triangular fibrocartilage, were discussed above with reference to his left wrist. Although widening of the ulnocarpal joint will most probably occur with a realignment of the distal right radius, he would also benefit from a surgical decompression of the ulnocarpal joint, which could be donearthroscopically, [sic] at the same time. It would involve an excision of the torn triangular fibrocartilage and any unstable cartilaginous flaps which may be present on the proximal pole of the triquetrum or lunate carpal bones. More likely than not, this will significantly improve the pain he is experiencing on the ulnar aspect of his right wrist.
Surgery, as discussed above with respect to his right wrist, consisting of an osteotomy of the distal radius, along with an arthroscopic debridement, can be carried out under general anesthetic on a day care basis. Post operatively, he would be started on a physiotherapy programme several days after the surgery, to try and regain forearm rotation especially. His right wrist and forearm will need to be protected in a splint until the osteotomy healed, which would take approximately 8 to 10 weeks. Full recovery from this surgery would be somewhere between four to six months, but could be as long as eight months to regain wrist movement, pain relief, and strength. There is approximately an 85% to 90% success rate with this surgery with respect to restoring a pain free functional range of motion of his right wrist.
There is an even chance that he will be left with a 10% to 20% permanent loss of grip strength of his dominant right wrist, in spite of successful surgery. This is especially true if he requires a surgical arthroplasty of the distal radioulnar joint as a second procedure as discussed above. If he elects not to undergo the surgery, there is a better than even chance that he will develop painful degenerative changes or arthritis in the distal right radioulnar joint over the next 5 to 10 years, further restricting forearm rotation. The pain on the ulnar aspect of his right wrist is unlikely to improve in the foreseeable future without surgery. Also, the chronic relative flexion posturing of the wrist to compensate for the mal-alignment, can lead to early degenerative changes in the radiocarpal and intercarpal joints over the next 10 to 15 years if the mal-alignment of the distal radius is not corrected.
[106] Kim Thompson, a kinesiologist, performed a functional capacity evaluation of Mr. Dikey on September 4 and 5, 2007. Her report of October 2, 2007 includes the following:
22. The following physical limitations were identified during the evaluation:
· Reduced right wrist flexion and right forearm supination which affected his functional abilities, specifically his ability to lift to shoulder height as well carry a bucket with the right wrist maintained in a supinated position;
· Reduced right hand grip strength which has impacted his functional abilities, specifically his ability to lift to shoulder height as well as carry with the right wrist maintained in a supinated position;
· Reduced tolerance for repetitive handling with the right hand and to a lesser extent the left hand;
· Physically de-conditioned;
· Reduced physical endurance and tolerance for repetitive tasks.
(e) Knee injury
[107] Mr. Dikey's right knee is painful if he walks extensively or bends it. He has stopped running because of the pain. In his September 20, 2007 report, Dr. Vaisler wrote the following regarding Mr. Dikey's right knee injury.
With respect to his right knee, he most probably sustained a partial tear of the medial collateral ligament of his right knee as a result of the motor vehicle accident. He, however, has no evidence of any residual knee instability but continues to complain of pain on the medial aspect of his right knee, which has not changed significantly over the past three years. More likely than not, he either has a tear of the medial meniscus in spite of the normal MRI examination, or he has sustained damage to the articular cartilage of the medial femoral condyle or medial tibial plateau as a result of the motor vehicle accident. He would be best to undergo a diagnostic arthroscopy of his right knee under general anesthetic, along with an arthroscopic debridement of the articular cartilage or medial meniscus, depending on the findings at surgery. This procedure can be carried out under general anesthetic on a day care basis, and post operatively physiotherapy is usually required for four to six weeks, with a graduated return to activities. There is approximately an 85% to 90% success rate with this procedure in relieving his right knee pain, but this cannot be entirely said for certain as it depends on what abnormality is found at surgery. The risk of him developing early degenerative osteoarthritis in his right knee as a result of the motor vehicle accident, is small but needs to be kept in mind and again depends on the surgical findings. If he elects not to undergo surgery on his right knee, it is unlikely that his right knee symptoms are going to change significantly in the foreseeable future.
(f) Soft tissue injuries to the neck and back
[108] Mr. Dikey sustained soft tissue injuries to his neck and back. In his report of September 20, 2007, Dr. Vaisler says as follows regarding those injuries:
With respect to his neck, he sustained a soft tissue musculoligamentous injury with no evidence of any fracture, dislocation or cervical nerve root injury. Typically neck symptoms from this type of injury consist of neck pain with prolonged sitting and standing with the neck flexed forward, extremes of movement of the neck, heavy lifting, heavy labour, fatigue at the end of the day and increased psychological tension. Neck symptoms generally take anywhere from several weeks to two years to settle, and in the majority of patients the symptoms completely resolve with no significant permanent pain or disability. His neck pain has gradually improved since the motor vehicle accident, but three years after the motor vehicle accident, he continues to have neck symptoms in spite of a prolonged course of physiotherapy and carrying out exercises on his own. He needs to be reassured that although his neck may hurt with being more active, he is not doing himself harm.
He also needs to be carrying out a regular programme of neck strengthening and postural exercises, and it would be worthwhile for him to continue on with supervision by a personal trainer, to be sure he is doing the exercises properly and to keep him motivated with respect to the exercises. He should also be encouraged to be involved in a regular physical fitness routine such as swimming or Pilates. It would also be worthwhile for him to obtain an Obus Forme type back support to be used for prolonged sitting and driving. More likely than not, his neck symptoms will continue to gradually improve, but there is a better than even risk at this point in time, three years after the accident, that he is going to continue to complain of intermittent annoying and disabling neck pain from time to time with the above noted activities, for the foreseeable future. It is unlikely he has sustained damage to a cervical disc as a result of the motor vehicle accident, but this could not be entirely ruled out and can take several years to become apparent on x-ray.
With respect to his low back, he also has sustained a soft tissue musculoligamentous injury with no evidence of any lumbar fracture, dislocation or lumbar nerve root injury. Typically low back symptoms from this type of injury consist of back pain with prolonged sitting and standing, sustained or repetitive bending, heavy lifting, heavy labour, fatigue at the end of the day and increased psychological tension. Symptoms generally take anywhere from several weeks to two years to settle, and in the majority of patients, the symptoms completely resolve with no significant permanent pain or disability. His low back pain has improved since the motor vehicle accident, but he continues to remain symptomatic.
As noted above, he will benefit from continued help from a personal trainer, as he needs to be carrying out regular back and abdominal muscle strengthening exercises on his own. He would also benefit from being involved in a regular physical fitness routine such as Pilates. Also as noted above, it would be worthwhile for him to obtain an Obus Forme type back support to be used for prolonged sitting and driving. At the time of my seeing him, he had moderate painful restriction of back extension and had some left paralumbar muscle spasm on palpation. There was also objective loss of lumbar lordosis. More likely than not, he is going to continue to complain of intermittent, annoying and disabling low back pain from time to time with the above noted activities for the foreseeable future. It is unlikely he has sustained an injury to a lumbar disc but this cannot be entirely ruled out, and can take several years to become apparent on x-ray. It would be worthwhile for him to continue on with help from a personal trainer for another 6 to 12 months, to improve his general physical fitness and especially his core muscle strength. There is no need for further physiotherapy, chiropractic treatments, or massage therapy, unless he has a significant exacerbation of low back pain and in that event, a repeat short course of physiotherapy or massage therapy would be beneficial.
(g) Summary and conclusion from medical evidence
[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.
[110] Mr. Dikey's continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.
[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.
[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.
[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.
[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.
PROGNOSIS
[115] The defence argued that Mr. Dikey's condition may improve. Defence counsel argued that surgery should result in reduced pain, which could in turn improve Mr. Dikey's cognitive functioning. Defence counsel also argued that if Mr. Dikey returns to Turkey, where he can be near family, surrounded by people speaking Turkish, in a familiar setting, and receive psychological treatment from a Turkish-speaking professional, his cognitive function may improve.
[116] The defendants argued that some of Mr. Dikey's decline was as a result of interruptions in his treatment, and that it can be expected that he will have more consistent treatment in the future, particularly if he returns to Turkey. The defence referred to the two periods Mr. Dikey stayed in Turkey since the accident, the first being for about the month of April 2005, and the second being for about seven months from mid-August 2005 to late March 2006. The defence suggested that Mr. Dikey may not have been exercising while in Turkey, although some of the expenses he claimed for that period include gym costs. The defence also referred to the interruptions in Mr. Dikey's receipt of occupational therapy, even when Mr. Dikey was in Vancouver. Those interruptions arose in part from occupational therapists being unavailable for their own personal reasons, but also from Mr. Dikey's reluctance to spend time with his occupational therapist.
[117] The most compelling evidence on the issue of Mr. Dikey's prognosis for cognitive improvement was the evidence of Dr. Melck. As a treating psychiatrist, he has seen Mr. Dikey frequently and over an extended period. Dr. Melck noted that Mr. Dikey's functioning improved slightly when Mr. Dikey was receiving a lot of occupational therapy with Ms. Ziebart. However, even when Mr. Dikey has been in good spirits and not depressed, his cognitive deficits have persisted.
[118] The only time Dr. Melck noted any significant improvement in Mr. Dikey's cognitive problems was when Mr. Dikey was taking Ritalin at a higher dosage than at present. Mr. Dikey cannot tolerate taking Ritalin at the higher dosage because it raises his blood pressure too much. In addition, Mr. Dikey habituated to the drug and the effect was reduced.
[119] Dr. Melck did not observe a significant enough improvement in Mr. Dikey when his family was visiting him in Vancouver to suggest that Mr. Dikey's cognitive functioning will improve materially if Mr. Dikey's social setting improved. Even when Mr. Dikey was obtaining the most occupational therapy support from Ms. Ziebart, he still suffered very significant cognitive problems.
[120] On balance, it is unlikely that Mr. Dikey's cognitive problems will improve materially following surgery or following further psychotherapy. However, it is likely that Mr. Dikey will experience some pain relief and increased function if he completes the wrist, jaw and knee surgery. He may also experience some relief from anxiety through continued psychotherapy.
ANALYSIS
(a) Liability
[121] Mr. Dikey argued that Mr. Samieian and Moe's LLC are 100 percent liable for his injuries. Moe's LLC agreed that if Mr. Samieian is liable personally, so, too, is Moe's LLC pursuant to the applicable legislation.
[122] Mr. Dikey argued that Mr. Samieian owed him a statutory duty of care, under s. 144(1) and s. 181(a) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (“MVA”). The defendants argued that Mr. Dikey has not proven that Mr. Samieian was negligent. They argued that the evidence is equally consistent with the accident arising from a mechanical defect.
[123] Section 144(1) provides as follows:
144(1) A person must not drive a motor vehicle on a highway
(a) without due care and attention,
(b) without reasonable consideration for other persons using the highway, or
(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.
[124] Section 181 provides as follows:
181 Despite sections 178, 179 and 180, a driver of a vehicle must
(a) exercise due care to avoid colliding with a pedestrian who is on the highway,
…
[125] Section 195 is also relevant, and provides as follows:
195(1) A person must not cause a vehicle to move on a highway if
…
(b) the view of the driver to the front or sides of the vehicle is obstructed.
[126] The Hummer travelled south down Chelsea Close and around the cube van to a place that was obscured from Mr. Samieian’s view. Mr. McFarlen did not find any evidence of any sudden mechanical failure in the vehicle following the accident, although there were limitations to what he could examine.
[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.
[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.
(b) Quantum of damages
(i) Mitigation
[129] The defence argued that Mr. Dikey failed to mitigate his damages, because he failed to follow recommendations regarding surgery, occupational therapy and exercise, when the necessary resources were available to him.
[130] The evidence demonstrates that some of the surgery, which is likely to reduce Mr. Dikey's pain, has been recommended for some time and yet was not pursued by Mr. Dikey. The wrist surgery was first discussed with Mr. Dikey in August 2004, and it appears to have a very good chance of producing a pain-free range of motion for Mr. Dikey. The jaw surgery was first discussed with Mr. Dikey in May 2005. It brings the risk of some facial paralysis, but that risk is likely to be short-term and it is not a significant risk. The knee surgery was recommended in September 2007 and it too is likely to result in pain relief.
[131] Mr. Dikey is brain damaged in a way that affects his decision-making abilities and initiative. His family lives in Turkey and is not familiar with the Canadian medical system. Only Mr. Dikey's sister has good skills in English, and there are limitations on her ability to converse in English.
[132] It is not surprising that there has been delay in Mr. Dikey proceeding with recommended surgery. He may well have provided mis-information to his family owing to his misunderstanding of medical advice. Although Ms. Ziebert tried to intervene and ensure that Mr. Dikey understood the benefits and risks of jaw surgery, her written summary does not include percentages to express degrees of risk, and may not have been clear to Mr. Dikey and his family. The medical reports that clarify the risks and benefits in writing and used percentages to express likelihood of outcomes for wrist and knee surgery, were dated August and September 2007, only a few months prior to trial.
[133] It is not surprising that it has taken the family time to come to terms with Mr. Dikey's significant cognitive problems arising from the accident. At first, Mr. Dikey's family had reason to hope that his condition would improve. Accepting the extent of his difficulty was probably made more difficult by the fact that Mr. Dikey was in Canada while his family members live in Turkey, and they were not seeing him on a regular basis. It is also not surprising that Mr. Dikey's family would seek to have some confirmation from Turkish doctors they knew about the suggested course of treatment in Canada.
[134] In other words, delay in responding to recommendations about surgery would be expected in the circumstances of a brain damaged plaintiff in Vancouver whose family lived in Turkey.
[135] With respect to the jaw surgery, the delay is explained by the concerns over the risk of facial nerve problems. Mr. Dikey ought to have the jaw surgery to relieve his pain symptoms and restore function, but in light of the concerns, the delay in having that work done should not reduce the assessment of his damages.
[136] With respect to Mr. Dikey's failure to attend more appointments with occupational therapists and to go more frequently to the gym for exercise, there is no need to reduce the award. While attending the therapy would likely have improved Mr. Dikey's quality of life for the relevant period, the improvement would not be significant, and it would not materially improve his cognitive functioning. Mr. Dikey's loss of initiative and the other consequences of his brain damage make it difficult for him to access these therapies. While he ought to have accessed these services more than he did, it is not surprising that he did not do so, particularly when his family lives so far away that they were unable to assist him to do so.
[137] In these circumstances, Mr. Dikey’s award should not be reduced for failure to mitigate.
(ii) Non-pecuniary damages
[138] Mr. Dikey’s counsel argued that the appropriate range for non-pecuniary damages is $250,000 to $300,000, and that an award of $275,000 would be fair. The defence argued that the range of $175,000 to $200,000 was appropriate, and that $175,000 would be a proper award.
[139] Non-pecuniary damages are those that have not and will not require an actual out-lay of money. The purpose of such an award is to compensate Mr. Dikey for such things as pain, suffering, disability, inconvenience, disfigurement, and loss of enjoyment of life. The award is to compensate him for losses suffered up to the date of trial and that he will suffer in the future.
[140] As stated by the Supreme Court of Canada in Lindal v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual's loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a "tariff". An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.).
[141] Prior to the accident, Mr. Dikey was a social and athletic young man with the ambition to work in the hotel industry and the courage to come to Canada to pursue his education. He was independent and showed initiative.
[142] Mr. Dikey's life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.
[143] I considered the following cases suggested by Mr. Dikey's counsel:
a) Spehar v. Beasley, 2002 BCSC 1104, aff’d 2004 BCCA 290, in which the plaintiff suffered severe traumatic brain injury affecting her executive functions, memory, temper, emotions and personality. The plaintiff also suffered multiple fractured ribs, fractured left collarbone, chest injury with bruised left lung, and painful right knee. The non-pecuniary damages award was in the amount of the upper limit of damages, $280,000.
b) Lines v. Gordon, 2006 BCSC 1929, in which the plaintiff, 32 years old at the time of the accident, suffered mild traumatic brain injury, with severe and constant headaches, vestibular dysfunction, visual difficulties, fatigue, sexual dysfunction, depression, and impairment of memory, concentration, organization and decision making. The non-pecuniary damages award was $225,000. His relationship with his children was affected.
c) Mann v. MacCaig-Ross (1998), 78 A.C.W.S. (3d) 70, [1998] B.C.J. No. 592 (S.C.), in which the plaintiff suffered permanent brain damage with consequential significant impairment of executive function. The non-pecuniary damages award was $175,000.
d) Adamson v. Charity, 2007 BCSC 671, in which the plaintiff, 42 years old at the time of the accident, suffered from chronic pain, major depression, severe headaches, and a mild traumatic brain injury, with residual problems with attention, short-term memory and concentration. The non-pecuniary damages were assessed at $200,000.
e) Sirna v. Smolinski, 2007 BCSC 967, in which the plaintiff, 22 years old at the time of the accident, suffered mild traumatic brain injury, neck pain associated with headache, paraspinal back pain, lumbar pain and a pelvic upslip. Plaintiff had cognitive deficits affecting attention and memory and suffers from chronic pain and depression. Prior to the accident she was healthy, vivacious, outgoing and an accomplished athlete. Following the accident she was unable to pursue her plan to study dental hygiene. She became competitively unemployable, but had some residual capacity. The non-pecuniary damages award was $200,000.
[144] I also considered the additional case suggested by defence counsel: Dionne v. Romanick, 2007 BCSC 436.
[145] Ms. Dionne was 54 years old at the time of the accident. She suffered brain damage, resulting in cognitive problems and problems with hearing and smell. She also suffered soft tissue injuries, which continued to cause pain and headaches. She required ongoing occupational therapy and assistance from a rehabilitation worker. The non-pecuniary damages award was $185,000.
[146] An appropriate award for Mr. Dikey for non-pecuniary damages arising from this accident is the sum of $215,000.
(iii) Future lost earning capacity
a. Position of the parties
[147] Mr. Dikey claims $1.8 million in lost future earning capacity. The position of the defence was that $150,000 would be an appropriate award.
[148] Mr. Dikey's position is that but for the accident, he likely would have obtained an MBA or a Master's degree in tourism, settled in Canada or another western country, and pursued a career in the hotel industry. Mr. Dikey's position is that as a consequence of the accident, he will not be employable.
[149] The position of the defence is that even without the accident, Mr. Dikey would have been unable to obtain an MBA or a Master's degree in Canada. The position of the defence is that Mr. Dikey would not have been able to immigrate to Canada, and would likely have returned to Turkey and worked there. The position of the defence is that the best way to assess Mr. Dikey's lost earning capacity is to determine what Mr. Dikey would likely have earned in Canada, and then award 25 percent of that on the basis of Turkey’s lower wage levels.
[150] Mr. Beninger, an economist, testified at the request of Mr. Dikey and was qualified to provide opinion evidence. Both the plaintiff and the defence relied on Mr. Beninger's evidence.
b. Case law
[151] Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158, describes the approach to assessing lost earning capacity as follows:
[8] The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.). Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.
[9] Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.
[10] The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) (Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:
1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment;
2. whether the plaintiff is less marketable or attractive as an employee to potential employers;
3. whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive market.
[11] The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995 B.C.J. No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.
…
[18] The assessment of damages is a matter of judgment not calculation. …
[152] Several cases have addressed the approach appropriate when a plaintiff does not have a history of earnings or established career path. See Joyce v. Dorvault, 2007 BCSC 786, [2008] B.C.W.L.D. 1211, at para. 37:
[37] The circumstances of the particular case will dictate which method will provide the better calculation approach for the plaintiff’s loss. In a case where economic evidence and past work history and future expectations are assessable the “real possibility” method may be most suitable. In a case where the plaintiff is a young person or someone who has not yet established a career or pattern of employment, the quantification of the loss may be more at large and the “capital asset” approach more useful: see Stafford v. Motomochi (1996), 28 B.C.L.R. (3d) 1 ¶42-43 (C.A.) and Sinnott v. Boggs, 2007 BCCA 267 ¶16.
[153] See also Conklin v. Smith, [1978] 2 S.C.R. 1107, 6 B.C.L.R. 362:
If, however, the plaintiff was not gainfully employed at the time of the accident but intended to be and was capable of being so gainfully employed thereafter, the court must made a reasonable allowance for the probable loss of future income due to the plaintiff having been deprived of that opportunity. Such allowance has been made when the plaintiff was very far from having been engaged in any gainful employment….
…it is the duty of a court to assess such sum for loss of future income as may be determined from a reasonable appraisal of the evidence.
[154] See also Hutchings v. Dow, 2006 BCSC 629, aff’d 2007 BCCA 148, leave to appeal ref’d 2007 Carswell BC 2328:
[374] What emerges from the evidence in this case, however, was that at the time of the Accident, the plaintiff was a young man with goals, but with no particular establishment in a specific occupation or even normal pattern of living yet. Thus there was at the time of his injury no well established context against which to measure the effects of the injury. The plaintiff’s life was in a dynamic and shifting period and it would have been difficult to assess, contemporaneously, whether and to what extent the effects of the Accident impaired his ability to function. In such circumstances, it was really only the passage of time and the plaintiff’s accretion of experience in the real world that would have allowed any of the plaintiff’s intimates or colleagues to gain insight into the effects of the Accident. This is not a case of a fireman who is suddenly unable to perform as a fireman. It is a case of a young man exploring his ability to function in a variety of ways while seeking to become a fireman, and finding some obstacles in his path, which for some time he was unable, or unwilling, to acknowledge. ...
...
[404] ...I am not satisfied the best measure of the plaintiff’s loss was achieved by quantifying his chances of being a fireman and effecting a comparison of what he could have earned in that capacity with what he either earns now or may earn in the future, as was addressed by the report of Mr. Struthers and the responding report of Mr. Hildebrandt. The loss the plaintiff has suffered is not best assessed as the loss of a chance to become a fireman; it is the likelihood of loss of a broader range of possibilities falling roughly between the income potential of a person with a trade certificate or a diploma at $47,900 in 2003 dollars, (identified by Mr. Nordin as apposite to the plaintiff’s level of education and training) and the income potential of a fireman starting at $58,740 according to the 2001 Census.
[405] Against that must be compared the range of possibilities faced by the plaintiff as a consequence of the Accident which include working at or around minimum wage, working at or close to his present income, or charting a course that finds a way of realizing or approaching his pre-Accident earning potential.
[406] In this case, having considered all the evidence, including the evidence both of the plaintiff’s successes (the successful completion of his BCIT course, the successful completion of the Industrial First Aid course, the successful completion of the National Lifeguard Service course, his apparent ability to secure and perform a job as a lifeguard and his successful competition for the building supervisor job at the WECC) and his difficulties (his apparent difficulties in performing his past jobs at Options, as a landscaper and as a valet, his described difficulties at the WECC, his described difficulties with organizational focus and memory issues, his physical limitations and his need to grapple with depression), I conclude that the cognitive difficulties faced by the plaintiff were worsened by his depression which crystallized in November of 2003 and to some extent, his future prospects are contingent on his ongoing management of that condition. In the event the plaintiff is able to manage that mood disorder, I consider it a realistic possibility that he could retrain and enhance his potential earning capacity. The fact remains, however, that whatever level of potential earning capacity he attains he is still conditioned by the physical and non-physical effects of the accident and by the loss of impetus and specific direction occasioned by them.
[407] In my view, there are too many variables at large in the evidence before me to fix the plaintiff with specific with-Accident or without-Accident potential streams of income. The uncertainties are best dealt with by considering the range of possibilities open to him before and after the Accident and finding an amount that reflects his likely annual loss of income and benefits given the loss of advantage he has suffered from the Accident.
[408] I conclude, in keeping with the principles set forth in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) and Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), that the measure of the plaintiff’s loss is in his diminished ability to attract, maintain or progress with various income earning opportunities due to his loss of function, competence and competitiveness resulting from the effects of the Accident and I would assess his loss of earning capacity at $625,000 based on the present value of income loss in the range of $25,000 annually to age 65.
[155] An award for loss of earning capacity is based on assumptions of future events, and therefore contingencies must be considered in the event that these assumptions may prove to be wrong. These contingencies are things that may affect future earnings, such as unemployment, illness, accidents and business depression. Dickson J. in Andrews v. Grant & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 253 provides some guide in adjusting for contingencies:
First, in many respects, these contingencies implicitly are already contained in an assessment of the projected average level of earnings of the injured person, for one must assume that this figure is a projection with respect to the real world of work, vicissitudes and all. Second, not all contingencies are adverse…. Finally, in modern society there are many public and private schemes which cushion the individual against adverse contingencies. Clearly, the percentage deduction which is proper will depend on the facts of the individual case, particularly the nature of the plaintiff's occupation, but generally it will be small….
c. Discussion
[156] Mr. Dikey is unlikely to recover sufficient cognitive function that he will be employable. As a result, it is appropriate to assess his damages on the assumption that he will not be gainfully employed in the future.
[157] Mr. Dikey had not entered the full-time workforce by the time of his accident. As such, a more at large, capital asset approach may be appropriate.
[158] In this case, the best approach to determining Mr. Dikey’s lost capital asset is to consider what career paths were real possibilities, assess the present value of the earnings in such positions, and make an award that expresses the likelihood that each would occur.
[159] Mr. Dikey showed an interest in the tourist industry from a relatively early age. He pursued education and summer jobs for a career in that industry. It is likely that he would have worked in the tourist industry, and probably in the hotel business.
[160] In this case, the most significant variables are whether Mr. Dikey would have obtained a Master’s degree in Canada or in another western country, and whether he would have likely have spent his career in Canada, Turkey, or somewhere else.
[161] Mr. Dikey showed the initiative and courage to come to Canada to pursue English training. At the time of the accident, he had been in Canada for a little over a year. While he had apparently made some progress in his English, he was not at a level to commence post-graduate studies. More importantly, his academic record at Anadolu University was poor. He failed three different courses, one of them twice, in his upper years of university. His overall grade point average was so low that he was not likely to have been selected for a position in a conventional Master’s program. There are some institutions offering Master’s degrees that have a relatively relaxed and less competitive requirement for grade point averages, such as the University of Phoenix; however, even that program would not likely have been available to Mr. Dikey except on a provisional student basis.
[162] It is sufficiently unlikely that Mr. Dikey would have obtained an MBA or another Master’s degree that it is appropriate to consider his lost earnings on the basis of income from managers in the hotel industry generally, rather than income projected for individuals who have graduated from MBA programs.
[163] The other major issue regarding lost earnings is where Mr. Dikey would likely have spent his working career. Mr. Dikey’s student visas and visas to enable medical treatment are not adequate to demonstrate that he would have been accepted as an immigrant to Canada. There was no evidence regarding the likelihood of Mr. Dikey being accepted as an immigrant to Canada.
[164] Immigration Canada presently considers the occupations of restaurant and food service manager, accommodation service manager and other service managers to be "occupations under pressure" in B.C. As a result, employers wishing to hire foreign workers in those occupations are only required to conduct minimal advertising efforts, rather than the more comprehensive recruitment efforts normally required. However, employers still need to satisfy all other foreign workers' criteria, including providing an opinion that there would be a positive or, at worst, a neutral impact on the Canadian labour market associated with the entry of that worker for that employer.
[165] Some hotel worker occupations are presently eligible for expedited labour market opinions, but they are not managerial positions.
[166] The main factors suggesting Mr. Dikey might have obtained immigrant status are his ambition and tenacity, which are reflected in his obtaining the original student visas. Because he was a single man in his late twenties, there is a chance that he may have formed a relationship with a woman who might have been able to sponsor his immigration to a western country. He is less likely to form such a relationship in his present circumstances.
[167] There is a serious concern that the immigration authorities might consider Mr. Dikey’s visa applications to have been misleading or untruthful. The evidence at trial about what information Mr. Dikey provided to immigration officials in support of his visa applications was incomplete, because Mr. Dikey did not fully understand his document production obligations under our Rules of Court. The evidence was not sufficient for making a determination as to whether Mr. Dikey misled the immigration authorities, but it raises a concern. The immigration authorities apparently understood at the time of Mr. Dikey’s initial application that he intended to return to Turkey despite his interest in immigration. The notes of immigration officials regarding later applications do not accurately reflect Mr. Dikey’s medical surgical status, although that could be the result of a misunderstanding of doctors’ letters or Mr. Nuno's letter, or difficulties with translation.
[168] An appropriate basis for considering the value of Mr. Dikey’s lost earning capacity is to assume that there is a 20 percent chance that he would have worked his career in Canada or another western country with comparable earning prospects, and a 80 percent likelihood that he would have returned to Turkey and completed his career there.
[169] I begin with the figure of about $1 million as the present value of average earnings of managers in the Canadian hotel industry for an individual with Mr. Dikey’s age and life expectancy. This should be reduced by about $100,000 to reflect Mr. Dikey’s anticipated two-year delay in commencing work in the industry. This delay is because, had he not been injured, he would likely have pursued his studies for the TOEFL examination and perhaps tried to begin a post-graduate program before commencing full time work.
[170] A further reduction of $120,000 to reflect British Columbia compared to Canada is appropriate because of Mr. Dikey's preference for the Vancouver climate. The defence proposed reducing the figure by a further 20 percent to reflect Mr. Dikey speaking Turkish at home, immigrating as an adult, and being foreign-born. These reductions are likely overstated for the hotel industry. A further reduction regarding these factors of $50,000 is appropriate. A reduction of $15,000 for the fact that Mr. Dikey smokes is appropriate.
[171] While Mr. Dikey’s evidence was that he did not want to have a desk job, it is probable that he would have softened on this position if he saw that it was limiting his career. This preference does not require any reduction in the calculation.
[172] As a result, an appropriate figure to use for Mr. Dikey's likely earnings had he remained in Canada is about $715,000. Applying a contingency of 20 percent to reflect the likelihood that he would have worked in Canada or another western country, one portion of Mr. Dikey’s likely future loss capacity award is $143,000.
[173] With respect to Mr. Dikey’s likely earnings in Turkey, there is little evidence of assistance. Industries differ, and simply comparing the gross domestic product of Canada and Turkey will not necessarily reflect the difference in hotel manager earning levels. Turkey is taking steps to enter the European Economic Union. As a result, there is a significant possibility that wage levels will increase to amounts more similar to those in western economies.
[174] The best assessment available on the basis of the evidence at trial is that Mr. Dikey's earnings in Turkey would be about 50 percent of earnings in Canada. That reflects the present lower wage levels in Turkey at present currency exchange levels, but also that Mr. Dikey is significantly better educated than most people in Turkey, and that there is a significant risk that salaries in Turkey will increase to levels closer to those in western economies.
[175] The only adjustments to the $1 million figure appropriate for working in Turkey are for smoking ($15,000) and the delay in commencing work ($100,000). As a result, the figure to begin with is $885,000. Dividing that in half to reflect the difference in the Turkish economy results in $442,500. Multiplying that by the 80 percent probability Mr. Dikey would have worked in Turkey results in a figure of $354,000. Together with the $143,000 reflecting the probability that Mr. Dikey would have worked in Canada, the total is $497,000.
[176] Loss of future earning capacity must be assessed not calculated. In the circumstances, an appropriate award for Mr. Dikey’s lost earning capacity is $500,000.
(iv) Cost of future care
[177] Mr. Dikey argued that an appropriate award for the cost of future care is $1,541,657. The defence argued that an appropriate award for the cost of future care is $200,000.
[178] The primary issue in the question of the cost of Mr. Dikey’s future care is where he will receive care. Another issue is what level of care the award should reflect.
[179] It is likely that Mr. Dikey will stay in Canada at least for the wrist surgery and recovery from that surgery. More contentious was where he will live after that, and what is the legal effect.
[180] An award for the cost of future care is to compensate Mr. Dikey for the monetary loss that he will probably incur. He is entitled to full compensation for reasonable expenses, but not to a lavish or extravagant level of care. I reject the argument that he should be entitled to an award based on Canadian expenses even if he is likely to return to Turkey, because that would over-compensate him.
[181] Mr. Dikey is likely to return to Turkey after he recovers from his surgery. There are two primary reasons for that. The first is there was no evidence demonstrating any likelihood that Mr. Dikey could become an immigrant to Canada in his present condition. That, together with the concerns about the information that Mr. Dikey has provided to Canadian immigration authorities in connection with his visas to date, make the probability that Mr. Dikey will stay in Canada small.
[182] The other primary reason is that it simply makes more sense for Mr. Dikey to return to Turkey. He will be able to speak Turkish with caregivers and friends and family more easily by living in Turkey. His family will be in a better position to arrange care for him.
[183] There was little evidence about the availability of care for Mr. Dikey in Turkey, and no evidence about the related costs. The evidence about availability was more evidence of impression from Mr. Dikey and his sister and father. There was no information directly from any service providers in Turkey. The evidence suggested that Mr. Dikey will not be able to obtain health insurance in Turkey for any treatment required by the accident, because it would be for a condition existing prior to obtaining insurance.
[184] The primary concern about availability of care in Turkey expressed by Mr. Dikey’s father was that the Turkish system does not provide home care services, and does not provide occupational therapy or rehabilitation assistance of the kind that are available in Vancouver.
[185] As set out above from Dr. Stewart’s opinion, Mr. Dikey will require assistance with meal preparation and cueing for other activities. I accept the defence submission that a significant amount of this assistance could be provided simply by individuals who function as housekeepers and personal trainers. Mr. Dikey himself had a certificate in bodybuilding and fitness, and it therefore appears likely that he could hire a personal trainer in Turkey.
[186] Mr. Dikey is likely to have the jaw and tooth implant surgery in Canada. There is a real possibility that he will also have the wrist surgery and the knee surgery. It is appropriate to consider the related costs on the basis of a 100 percent likelihood of having jaw surgery, 80 percent likelihood of wrist surgery, and 50 percent likelihood of knee surgery. He will likely require two years of care in Canada to complete the treatments.
[187] The appropriate approach for assessment of Mr. Dikey’s cost of future care for the period commencing two years after trial is to consider what costs would be appropriate in Canada, and then award a percentage of that to reflect the different cost of care in Turkey. There was no evidence about the actual difference in health care related costs. There is a significant risk that the cost of future care in Turkey will increase to levels closer to those in western economies. The best assessment on the evidence at trial is that the cost of future care in Turkey over Mr. Dikey's lifetime will be about 35 percent of current Canadian costs.
[188] Considering an appropriate award first at Canadian prices, I have taken into account the following:
(a) Occupational therapist
[189] Mr. Dikey claims four hours of occupational therapist services a week at an annual cost of about $16,700. The defence position is that Mr. Dikey has, in fact, only accessed about 10 hours a year of occupational therapy, even though more was made available to him.
[190] Mr. Dikey is entitled to be compensated for assistance from someone like an occupational therapist. He is unlikely to require as much as four hours a week on an extended basis, because after his surgery he is unlikely to have an ongoing need to see medical professionals apart from his psychiatrist, and will not need case management.
[191] It is appropriate to assess Mr. Dikey's need for occupational therapy at two hours of service every two weeks, being an annual cost of about $4,175.
(b) Rehabilitation assistant
[192] Mr. Dikey claims $21,600 to $31,200 for this item. That is based on obtaining two to three hours of care five days per week at $40 per hour.
[193] Mr. Dikey is likely to require two hours of rehabilitation assistance, five days per week. It is likely that some of the services can include housekeeping and exercise supervision, and will eliminate the need for a housekeeper or personal trainer. Alternatively, the housekeeping work could be performed by someone else for less than $40 per hour, but the cost for separate services would likely result in a similar overall cost. An award reflecting an annual cost of $20,000 is appropriate.
(c) Recreational centre membership
[194] Mr. Dikey claims an annual cost of $320 and this is appropriate.
(d) Kinesiologist
[195] Mr. Dikey claims $5,760 to $6,768 as the annual cost for a kinesiologist. The services that are appropriate for Mr. Dikey are personal training services, which are already considered under the heading of Rehabilitation Assistant.
(e) Physiotherapy
[196] Mr. Dikey claims $200 per year for physiotherapy to treat periodic flare-ups of pain, and this is appropriate.
(f) Counselling
[197] Mr. Dikey claims about $1,700 to $3,400 for this item. Dr. Melck's evidence was that he saw Mr. Dikey every two to four weeks. On that basis, an annual cost of $2,000 is appropriate.
(g) Home Support Services
[198] Mr. Dikey claims a further sum of about $4,800 to $8,000 for home care supervision and services. This need should be met by the Rehabilitation Assistant described above.
(h) Medications
[199] Mr. Dikey claims an annual medication cost of about $3,000 and this is appropriate.
(i) Surgery
[200] Mr. Dikey's likely costs of surgery are $40,000 for the jaw reconstruction, $15,000 for the tooth replacement implant surgery, $17,000 for wrist surgery, and $3,200 for knee surgery. Applying the contingencies discussed earlier results in a total of $70,200 ($40,000 + $15,000 + $13,600 + $1,600).
(j) Summary
[201] Mr. Dikey's likely cost of treatment for two years in Canada is $59,390 ($4,175 + $20,000 + $320 + $2,000 + $200 + $3,000 x 2 years).
[202] The present value of the annual costs of $29,695 for the period commencing two years after trial is about $630,000 (multiplier of 21 x $30,000). Discounting that to 35 percent to reflect costs in Turkey results in $220,500.
[203] As a result, it is appropriate to consider Mr. Dikey's annual cost of future care for the surgery and two years of treatment in Canada to be about $130,000, and his future care costs for the period commencing two years after trial to be about a further $220,000.
[204] Costs of future care must be assessed not calculated. In all the circumstances, a fair assessment of Mr. Dikey's cost of future care is $350,000.
(k) Special damages
[205] Mr. Dikey suffered expenses that would ordinarily be considered special damages, but which have already been paid. Counsel agreed that these reasons for judgment should reflect the fact that Mr. Dikey incurred these expenses, although he is not pursuing a claim for them. As I understand it, the total paid was $80,626.36. As a result, Mr. Dikey is entitled to a declaration that he incurred special expenses in the amount of $80,626.36, but those expenses have been repaid.
MANAGEMENT FEES
[206] Counsel agreed that the issue of whether Mr. Dikey was entitled to management fees should be resolved, and if Mr. Dikey is entitled, counsel will address the quantum of those fees in later submissions.
[207] Mr. Dikey will require assistance in handling his financial affairs. He can expect to get some assistance from his family, but that is not something he can rely on for the balance of his life. His parents will age, and his sister will be involved in her own family life. In the circumstances, Mr. Dikey is entitled to an award for management fees for the period commencing five years after trial. Counsel can address the quantum in later submissions.
TAX GROSS-UP
[208] Mr. Dikey is likely to return to Turkey. There was no evidence about the tax situation in Turkey. In particular, there is no evidence regarding whether Turkey taxes investment income, dividends or capital gains and if so, at what rates. In other words, there is no evidence that the award will result in Mr. Dikey incurring tax liability. As a result, it is not appropriate to alter the award for a tax gross-up.
STAY OF EXECUTION
[209] Moe's LLC sought leave to make submissions regarding timing of the payment of any award. Moe's LLC has liberty to make those submissions and execution is stayed until further order. Counsel should make arrangements for a further hearing through the registry forthwith.
COSTS
[210] Unless the parties have submission as to costs, Mr. Dikey is entitled to his costs on Scale B. If the parties will be making submission as to costs, I ask that they kindly advise the registry by letter, asking that it be brought to my attention, within a month of the release of these reasons. The parties can also arrange a hearing through the registry on the management fees issue, the stay of execution issue, and on the question of costs regarding Moe's Classic Rugs and the Numbered Companies.
SUMMARY
[211] In summary, the order is as follows:
(a) Mr. Samieian and Moe's LLC are entirely responsible for Mr. Dikey's damages from the accident;
(b) Mr. Dikey's damages are assessed at $1.065 million, calculated as follows:
(i) $215,000 for non-pecuniary damages;
(ii) $500,000 for lost future earning capacity; and
(iii) $350,000 for the cost of future care.
(c) the Court declares that Mr. Dikey incurred special expenses in the amount of $80,626.36, but those expenses have been repaid;
(d) Mr. Dikey is entitled to an award for management fees, in an amount to be determined after further submissions;
(e) Mr. Dikey is not entitled to a tax gross-up on the award;
(f) execution on the award is stayed pending further order;
(g) Mr. Dikey is entitled to costs on Scale B unless there are submissions as to costs; and
(h) the parties have liberty to make further submissions as discussed above.
"Madam Justice Gray"