2. Ms. Kirker
¶ 869 According to Ms. Kirker, the Plaintiff advised that she would likely have had a computer regardless of her injury and therefore did not provide for this item as it is not a result of her injury.
¶ 870 I agree with Ms. Kirker only in part. There is little doubt that the Plaintiff would have her own computer regardless of her disability. However, because of the Plaintiff’s significant disability a more sophisticated computer system is required. It is regrettable such an important item was not thoroughly researched by the experts. For example, evidence was not given to the Court as to whether there is a difference in the cost of a computer using voice activated software or continuous speech recognition software and what the Plaintiff, but for her injury, would have been using. Once again I am forced to make an arbitrary assessment with scant information upon which to rely. However, I will accept the fact that a faster computer with maximum memory capacity is required to run and accommodate advances in the specialized software noted below. I allow the sum of $1,500 for this purpose with replacement every three years.
– Specialized Software
1. Ms. Lancaster
¶ 871 According to Ms. Lancaster the Plaintiff will require specialized software at an approximate cost of $3,000 which to be used effectively must include training at an approximate cost of $3,000. It should be updated every six years when the computer is replaced.
2. Ms. Kirker
¶ 872 Ms. Kirker is of the opinion that the Plaintiff would benefit from using voice-activated software in her computer and estimates the cost at $1,600 with replacement recommended every five years. Ms. Kirker opined that the cost, as provided by Ms. Lancaster, is higher than current costs as provided by resource people in this area.
¶ 873 According to Ms. Kirker, the Plaintiff uses a two finger typing method and had typing splints fabricated at the Glenrose. The estimated cost for these splints is $30 and replacement is recommended every three years. The Plaintiff does two-finger type which, in Ms. Kirker’s view, reduces her speed when having to prepare notes or write papers. The Plaintiff noted that she is slow when writing at school and had designated note takers for the first few years, but found it was just as efficient for her to take her own notes. In Ms. Kirker’s opinion, it would be easier for her if she had voice-activated software on her computer. This system would require replacement every five years.
¶ 874 Ms. Lancaster advises that a fund of $500 per year is required for the purchase of additional software and computer supplies.
¶ 875 Ms. Kirker was of the view that the Plaintiff would have incurred costs for software in any event and there is no indication in Ms. Lancaster’s recommendations that the additional software is directly related to the Plaintiff’s injury.
¶ 876 According to Ms. Lancaster, access to the keyboard is still required for certain functions through a track ball mouse at a cost of $221 from Mandeta. According to Ms. Lancaster a track ball mouse is currently on loan to the Plaintiff, however, she should have her own and it should be replaced every three years.
¶ 877 Ms. Kirker is of the view that the cost of a standard mouse should be considered in the determination of the disability-related cost of the trackball mouse but provides no cost for this.
¶ 878 I agree that voice-activated software or speech recognition software would greatly assist the Plaintiff given her disability. I allow an initial acquisition cost for specialized software of $3,500 which is inclusive of the cost differential between a standard mouse and a trackball mouse, training at a cost of $3,000 and an annual sum of $1,000 for replacement costs in the form of upgrades and additional or improved software. Given the inordinate benefit that can be afforded the Plaintiff it is indeed unfortunate that a more detailed report was not given the Court regarding the current status of the technology. Therefore, I have approximated the cost cognizant of the rapid advancements in this form of technology. This technology will as it advances assist the Plaintiff immeasurably in the work place, hence the reason for this generous award. I have disallowed the claim of $30 for finger splints, given the software the Plaintiff will utilize renders these items redundant.
– Tuttle Environmental Control System
1. Ms. Lancaster
¶ 879 Ms. Lancaster provided for an environmental control system which would allow for the turning on and off of items such as lights, television, stereo, and release of the door latch (2448). The components of the environmental control system are available through TASH Inc. and a contingency of $3,500 is recommended to set up the appropriate system. Ms. Lancaster recommends replacement every ten years and yearly maintenance of the system at $350.
2. Ms. Kirker
¶ 880 According to Ms. Kirker, the Plaintiff indicated that she would like to have some form of control unit to allow her to control the light switches in her bedroom when she is transferred to her bed. Ms. Kirker advises that the estimated cost is $1,200 and the yearly maintenance cost is not applicable. Replacement is recommended every ten years.
¶ 881 I am persuaded as to the need of the Tuttle Environmental Control System and allow it at a cost of $3,500 with replacement every ten years and yearly maintenance of $350.
¶ 882 In conclusion, after assessing all the cost of care claims I must express my disappointment that counsel, after reviewing the expert reports, could not have agreed upon many of these items which I can only categorize as trivial at best; they should not have been left for Court determination.
VIII. COSTING OF FUTURE CARE AWARDS
¶ 883 Dr. Bruce relied upon Ms. Lancaster’s July 15, 1997 report to estimate the cost which the Plaintiff would have to pay for her future cost of care whereas Mr. Taunton relied upon Ms. Kirker’s report dated September 11, 1997. These values include provision for GST where applicable.
¶ 884 According to Mr. Taunton the future cost of care multipliers are a convenient, shorthand technique used to convert a future expense stream of future care into a lump sum present value as of the date of trial, that is, the present value incorporated with mortality (3455).
¶ 885 For this assessment, I ask that the parties calculate the multiplier in light of my determination as to the cost of the items required for the Plaintiff’s future care. I ask that the multiplier be calculated for the applicable replacement life for each of the items referred to above. I ask that the calculations be based on the assumptions I have made in my determination as to starting and concluding time periods. I also ask that the agreed discount rate be used for this calculation and the GST be included, if not already, where applicable. If the parties cannot agree as to the amount they are to come back before within 30 days.
IX. SPECIAL DAMAGES
A. Subrogated Claims
1. The Claim for Alberta Health
¶ 886 This claim is a subrogated claim relative to the Plaintiff’s hospitalization advanced by Alberta Health (Exhibit 1, Tab 51) admitted by the defence (4771) and allowed at $190,660.92 ($143,214 (total) + $47,446.92 (accumulated interest)) as at September 26, 1997 with prejudgment interest to accrue thereafter.
2. The Claim for Services Provided by the Government of Alberta: Handicapped Children’s Division
¶ 887 The Plaintiff’s father, Clifford MacCabe, entered into an agreement with the Alberta Government Department of Social Services and Community Health, Handicapped Children’s Division (”HCS”) whereby he borrowed $5,087.76 from HCS (Exhibit 1, Tab 50). The agreement was signed on January 9, 1992. The purpose of the loan was to provide the parents of the Plaintiff with funds for transportation, meals and parking expenses to attend with the Plaintiff during her hospitalization, as well as clothing and medication for the Plaintiff.
¶ 888 The Plaintiff argues that this is a subrogated claim. There is no authority cited for this proposition. The Department of Social Services has no subrogated right to effect such recovery in contrast to the Minister of Health under the Hospitals Act, R.S.A. 1980 c. H-11. I therefore do not accept this argument. If any money is payable for the funds provided by the Government, it is payable because the Plaintiff has claimed for it and it is a reasonable expense incurred because of the injury suffered by her.
¶ 889 In my opinion, the monies paid by HCS relative to travelling, parking and meal costs, in effect on a voluntarily basis, are not recoverable by the Plaintiff. Although these may be reasonable and necessary expenses in the circumstances of this case, it is not the Plaintiff’s reasonable loss which is being compensated, rather it is her father’s, albeit incurred to assist his daughter while she was hospitalized. The question is not whether or not there is a legal or moral liability to repay the monies, the question is, is this the Plaintiff’s loss? I find it is not for that portion of the claim relating to the travel, parking and meal costs of the Plaintiff’s parents and it is accordingly denied. However, that is not the case for a portion of the claim that relates directly to the clothing and medication purchased for the Plaintiff.
¶ 890 Joanne MacCabe testified that special tops and a jacket were purchased for the Plaintiff to slip over her head-support halo and chest (3140). The invoices (Exhibit 1, Tab 50) indicate that the following monies were paid for clothing:
Invoice # Clothing
11710 $ 96.28
122865 $ 28.88
122868 $ 10.69
122930 $ 37.42
122931 $219.04
Total $392.31
¶ 891 The invoices as disclosed in Exhibit 1, Tab 50 reveal that the following monies were paid for medicine:
Invoice # Medicine
122969 $202.55
122968 $106.58
122971 $388.68
122970 $ 18.78
Total: $716.59
Therefore, the total sum of $1,108.90 is reimbursable.
B. Pre-trial Special Damages
¶ 892 Pre-trial special damages excluding the claim for care provided by the Plaintiff’s mother, father, Mr. Conquest and friends have been agreed upon by the parties at $57,876.87, excluding subrogated claims (4771).
C. Care Provided by Family Members up to Trial
¶ 893 The special damages claim for the care provided by the Plaintiff’s mother, father and Mr. Conquest is in the amount of $540,031.27 [Exhibit 1, Tab 49]. It is represented by a schedule prepared by the Plaintiff. This amount is disputed by the Defendants.
¶ 894 Wenden v. Trikha (1991), 116 A.R. 81 (Q.B.), affirmed on appeal (1993), 135 A.R. 382 and followed in the recent decision of Brown (Next Friend of) v. University of Alberta Hospital (1997), 145 D.L.R. (4th) 63 (Alta.Q.B.) clearly establishes that services to a plaintiff necessitated by the negligent conduct of a defendant are recoverable by the plaintiff regardless of whether the person providing the services was under a legal obligation to provide such services and regardless whether or not the person expected to be compensated or not.
(i) Mother’s Claim for Compensation
¶ 895 The evidence relating to her mother’s claim references the provision of extra care, that is, laundry, cooking, assisting with the Plaintiff’s medication, cleaning and extra involvement in daily care including her catheterization and cleaning when she was incontinent. The Plaintiff’s mother was virtually on call on a 24 hour a day basis to look after the Plaintiff (2995). For example the Plaintiff’s mother was available at night if the Plaintiff needed her legs repositioned after a muscle spasm. A substantial number of hours were logged during the Plaintiff’s post-operative, convalescence time.
¶ 896 The Plaintiff testified that Joanne MacCabe only had a two day break in the first 30 days post-accident. A typical day would entail helping the Plaintiff move as follows: wheelchair to bed, bed to wheelchair, wheelchair to toilet, toilet to chair, chair to tub and tub to chair, chair to bed, bed to chair to meals and back to bed, catheterize during the night, shifting the Plaintiff in bed many times at night, clean-up and frequent laundry.
¶ 897 The care provided to the Plaintiff by her mother was submitted as follows (Exhibit 1, Tab 49):
The Plaintiff’s Mother’s Assistance 1992-1993
1991 – 15 days
1992 – 363 days
1993 – 285 days to September 7, 1993
September/October/November – 2 days per week (26 days)
Housekeeping/Care Provided by the Plaintiff’s Mother 1994-1997
(Year/Hours Put in by Joanne MacCabe)
1991 – 1992 – 8819
(Sept. – Dec.)
1993 – 1994 – 9530
(Jan. – Dec.)
1995 716
1996 – 1997 – 572
(Jan. – Aug.)
The total number of hours expended is 19,637; 19,637 x $14.50 = $284,736.50.
¶ 898 I find the decision of Kroeker v. Jantzen (1995), 4 B.C.L.R. (3d) 178 (B.C.C.A.) instructive. Although this case dealt with the loss of future ability to perform household tasks by a spouse, the principle therein enunciated is applicable here. The Court considered three cases, namely: Daly v. General Steam Navigation, [1980] 3 All E.R. 696 (C.A.), Hall v. Miller (1989), 41 B.C.L.R. (2d) 46 (B.C.C.A.) and Fobel v. Dean, [1991] 6 W.W.R. 408 (Sask.C.A.) to illustrate the emergence of an approach which recognizes that housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those future care services were provided gratuitously from within the family by a spouse.
¶ 899 The question whether these authorities apply to a mother’s gratuitous services is considered in McDonald v. Neufeld (1993), 85 B.C.L.R. (2d) 129 (B.C.C.A.); Cartaginese v. Castoro,(30 Jan 1995) Toronto 24140/87, [1995] O.J. No. 142 (Q.L.) (Ont. Crt. G.D.) judgment of Bowlen J.; Ligate v. Abick (1996), 28 O.R. (3d) (C.A.) and Bains v. Green, (8 Apr 1997) New Westminster S24225, [1997] B.C.J. No. 943, Fisher, J. (B.C.S.C.).
¶ 900 All four of these cases granted compensation to the mother of an injured plaintiff for extra services required and provided by her to the plaintiff.
¶ 901 The following judicial excerpts are worthy of note:
Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 at 463 (S.C.C.):
… there is now ample authority for saying that dedicated wives or mothers who choose to devote their lives to looking after infirm husbands or sons are not expected to do so on a gratuitous basis.
Thornton v. Prince George School District No. 57 Board of School Trustees (1976), 73 D.L.R. (3d) at 55 (B.C.C.A.) per Taggart J.A.
… [the plaintiff] may claim as an item of special expense an appropriate amount to compensate those who have rendered services to him of a nursing character.
Feng v. Graham, [1988] 5 W.W.R. 137 at 149-50 (B.C.C.A.) per Wallace J.A.:
It would appear from the review of authorities cited that a claim for nursing and domestic services rendered by members of the injured party’s immediate family are allowed where the plaintiff establishes the need for such services as a consequence of the injury, and provided that they are rendered to or on behalf of the plaintiff.
Crane v. Worwood (1992), 65 B.C.L.R. (2d) 16 at 38 (S.C.):
… states that where a relative provides services needed as a result of the plaintiff’s injuries, which could be provided by a third party, the plaintiff may be awarded damages for their reasonable cost.
¶ 902 On the Plaintiff’s discharge from the Glenrose to her parents’ residence in Westlock the Plaintiff required substantial care. These services were provided by her mother and arose as a consequence of this accident. It is most evident from Joanne MacCabe’s testimony and that of the Plaintiff’s, that the Plaintiff’s mother is an overly-protective mother willing to go to herculean extremes to assist, support and comfort the Plaintiff.
¶ 903 Notwithstanding her over-zealous devotion to her daughter, I have concluded certain of the tasks she assumed were clearly in addition to the pre-accident norm and were required for the health, rehabilitation and well-being of the Plaintiff.
¶ 904 It would be improper to impose upon the Defendants the responsibility of Joanne MacCabe’s total time given a portion of that time was not accident-related. Further, a caregiver could have been provided free of charge to the Plaintiff for several hours a week that is to say, daily for two hours in the morning and one hour at night (3133, 3162), but Joanne MacCabe testified she did not take advantage of this service because she did not want a stranger in her house caring for her daughter.
¶ 905 I am also mindful of the fact that if Joanne MacCabe would not have been able to handle her daughter’s care, the alternative would have been for the Plaintiff to reside in an extended care facility.
¶ 906 In the decision of Crane v. Worwod, [1992] 3 W.W.R. 638 (B.C.S.C.), Huddard, J. (as she then was) held that if the loss of income claimed exceeds the cost of third party’s care then it is necessary to mitigate one’s damages. In the decision of Falls v. Falls, (2 May 1995) Powell River S0014, [1995] B.C.J. No. 968 (Q.L.) (B.C.S.C.) (summarized at 55 A.C.W.S. (3d) 96) at para. 80 Vickers, J. enunciated the approach used in Crane as follows:
1. Where services are necessary as a result of the plaintiff’s injuries, they are prima facie compensable;
2. The claim is that of the plaintiff/victim, not the provider of the services;
3. What is compensable is the value of the services to the plaintiff;
4. The maximum value of such services is the cost of obtaining the services outside the family;
5. Where the opportunity cost to the care-giving family member is lower than the cost of obtaining the services independently, the Court will award the lower amount;
6. To be compensable the services have to be outside the normal duties expected of a spouse or family member.
¶ 907 Given that I have accepted as fair and reasonable attendant care compensation, the rate of $13.50 per hour, I will not accept the $14.50 rate claimed by the Plaintiff. All of the claims shall be reduced to a hourly rate of $13.50.
¶ 908 Further, I must take into account that Joanne MacCabe had access to three hours of attendant care daily while the Plaintiff resided with her. Accordingly, from December 18, 1991 to her commencement at university in September 1993 there will be a reduction as follows:
December 18-31, 1991 14 days
January to December, 1992 inclusive 363 days
January 1, 1993 to and including
September 7, 1993 285 days
662 days
662 days x 3 hrs. per day = 1986
Total hours: 19,637 – 1986 = 17,651
¶ 909 I will also reduce the claim by 500 hours for those services Joanne MacCabe would have performed for her daughter, notwithstanding her accident (17,651 – 500 = 17,151). This would result in a claim of $231,538.50 (17,151 x $13.50 = $231,538.50) Finally, I must discount her time even further because many days would have warranted a flat fee for 24 hour care of $171 daily rather than be charged on a hourly basis. I find that the appropriate discount would be 25 percent ($231,538.50 x $.75 = $173,653.87).
¶ 910 The total approved claim for Joanne MacCabe is $173,653.87.
(ii) Father’s Claim for Cost of Care/Housekeeping
¶ 911 The evidence relating to the Plaintiff’s claim for her father’s services for her care references the extra care involving the maintenance of a vehicle, lifting the Plaintiff, transferring the Plaintiff from the wheelchair to the vehicle and vice versa, helping the Plaintiff move into her apartment, and running miscellaneous errands for her.
¶ 912 The claim is based on the care provided for the Plaintiff by Mr. MacCabe from the date of the accident, April 23, 1991 to August 30, 1997. The hours expended by Clifford MacCabe for care are as follows:
1991-1992 829.0
April – December
1993-1994 773.0
January – December
1995 66.5
January – December
1996-1997 114.0
January – August
TOTAL: 1,782.5 hours
The total number of hours expended is 1,782.5 translating into a claim of $25,846.25 (1,782.5 x $14.50 = $25,846.25).
¶ 913 Once again, I will accept only the rate of $13.50. I have limited information as to what services Clifford MacCabe provided for the Plaintiff as he did not testify at trial. I will not accept those hours expended for maintenance of the Plaintiff’s vehicle as those services would normally be provided by a father to one’s daughter. Therefore, I will accept only one half of the hours claimed by Mr. MacCabe. I fix the Plaintiff’s claim for her father’s services at $12,031.88, representing 891.25 hours x $13.50 = $12,031.88.
(iii) Mr. Conquest’s Claim for Cost of Care/Housekeeping
¶ 914 The evidence relating to Mr. Conquest’s claim references the provision of extra care for the Plaintiff when the attendant caregiver was discharged or during the Plaintiff’s sleeping hours. These services included repositioning the Plaintiff in bed, assistance with catheterization, cleanup after incontinence, opening doors, picking up articles dropped by the Plaintiff, lifting the Plaintiff from her wheelchair into a regular chair and vice versa, hanging up her clothes in the closet, adjusting the thermostat, assisting with her transfer onto the bed, assisting with the preparation of meals, answering the telephone, cutting food into manageable pieces, repositioning her in bed when the Plaintiff was uncomfortable, adjusting the window in the Plaintiff’s apartment, securing the deadbolt, assisting with medication, carrying a drink while the Plaintiff was socializing, lifting the Plaintiff into a regular chair at the theatre, changing the channel on the television when the remote control was not working, lifting the Plaintiff into the vehicle and out of the vehicle, serving hors d’oeuvres to her, lifting the Plaintiff into her racing wheelchair, letting the personal care attendant into the apartment when that individual did not have her key, wiping the Plaintiff with a wet washcloth to cool her off, and carrying the Plaintiff’s luggage.
¶ 915 The claim is based on the hours spent by Mr. Conquest for the care provided to the Plaintiff from October 1994 to August 30, 1997:
1994 70.50
October – December
1995 4048
January – December
1996-1997 7360
January – August
The total number of hours expended is 11,478.5 x $14.50 = $166,438.25.
¶ 916 As indicated earlier, the case law is clear that in order to be compensable the services must be outside the normal duties expected of a spouse or family member. I find that the activities recited by Mr. Conquest are generally those normal duties expected of a boyfriend or significant other and are not compensable. I will allow only what I deem to be reasonable hours for the Plaintiff’s attendant care during the evening hours when Mr. Conquest assisted with catheterization, or the repositioning of the Plaintiff in her bed. As I have earlier found that the Plaintiff requires further attendant care during the evening hours, Mr. Conquest will be compensated from October 1994 to August 1997 at two hours per day. The exception will be for 1994 as Mr. Conquest’s hours for October, November and December are less than an equivalent of two hours per day and therefore his figures will be used for purposes of my calculations.
1994 October 7 4.0 hours
November 12.0 hours
December 54.5 hours
70.5 hours 70.5 hours
1995 January to December inclusive 365 days x 2 hours
730.0 hours
1996 January to December inclusive 365 days x 2 hours
730.0 hours
1997 January to August inclusive 243 days x 2 hours
486.0 hours
2,016.5 hours
Total: 2,016.5 hours x $13.50 = $27,222.75
Therefore I fix the Plaintiff’s claim for Paul Conquest’s services at $27,222.75.
X. MANAGEMENT FEE
¶ 917 The Plaintiff is claiming a management fee.
¶ 918 Mr. Justice Sopinka defined the rules for the allowance of a management fee in Mandzuk and Vieira, [1989] 5 W.W.R. 131 at p. 132, 53 D.L.R. (4th) 606 (S.C.C.) where he held:
A plaintiff seeking to receive either a management fee or an investment counselling fee should provide a factual basis to the trier of fact, including:
i. Evidence that management assistance is in fact necessary;
ii. Evidence that investment advice is in fact necessary in the circumstances;
iii. Evidence as to the cost of such services;
¶ 919 Mr. Marty Larsen, called on behalf of the Plaintiff, was qualified as a financial consultant capable of giving expert opinion evidence as to the cost of money management fees (2405).
¶ 920 Mr. Larson opined that investment manager fee’s are approximately one percent on the first million dollars (2405). He testified that the investment management fee begins to decline on a sliding scale as the amount of the fund increases.
¶ 921 The management fee covers all brokerage fees and safekeeping of securities (2406), and includes:
- payment of utility bills and other regular bills
(2407);
- providing information to the accountant as to the
tax returns (2408); and
- quarterly remittance of income tax payments (2408).
¶ 922 Mr. Larson advises that additional fees would be incurred if the tax return were prepared by the investment manager (2408). Mr. Larson opined that if a relatively young individual came to him with several million dollars to invest, he would recommend a mixed portfolio of bonds and equities (2409). According to Mr. Larson, the money manager should be able to at least beat the discount rate (2410).
¶ 923 I have nothing before me to indicate that an investment or management fee is warranted or necessary nor any justification for the amount claimed. I am satisfied that the funds awarded the Plaintiff can be invested in direct securities through a professional fund manager who should earn a return sufficient to offset the investment fees. Accordingly, I decline to award a management fee.
XI. COSTS
¶ 924 If necessary, the parties are at liberty to speak to me about costs within 30 days of the rendering of this judgment.
¶ 925 I wish to express to all participating counsel my appreciation for the courtesy extended to the Court during this difficult and tragic case.
¶ 926 Given that I have had to make a number of adjustments to the scenarios and calculations presented to me by the experts, in the event there are errors found in my calculations, the parties are at liberty to come back before me within 30 days.
JOHNSTONE J.
cp/i/ln/drk