Saunders, J. made an individualized assessment to the effect that male wage tables should be the starting point as it is a better approximation of the realistic lost life earnings of the plaintiff.
¶ 459 In Tucker, supra, the British Columbia Court of Appeal found that the trial judge did not commit a reversible error when he used male tables and then reduced the amount by 60 to 65 percent. I am mindful that in dissent, McEachern, CJBC, held that a wrong principle of law was applied in using university educated males as the starting point. In his view only a small percentage of the population complete university, and because such a large discount was used, he held that the trial judge selected the wrong starting point. In obiter, he found that the average statistics clearly reveal that women earn less than men, and even though this is deplorable, it would be unfair to the defendants to ignore this reality. In his opinion all the courts can do is ensure, as much as possible, that weight is given to societal trends so that future loss of income reflects relevant future circumstances.
¶ 460 In B.I.Z., supra, the plaintiff was involved in a motor vehicle accident at the age of twenty-eight. At the time of the accident the plaintiff was an accountant with a very promising future. Her past employment record was excellent and she had completed a two year accounting program. At the time, the plaintiff was completing the course work necessary to become a Certified Management Accountant, and her intention was to complete a bachelor of commerce degree. The evidence was that while the plaintiff intended to have a family, she did not intend to stop working for any great length of time, and would utilize day care facilities and a nanny in order to keep working.
¶ 461 Hunter, J. in B.I.Z., supra, held that the plaintiff’s future income loss was closer to male earnings than female earnings because the plaintiff would not have taken significant time out of the work force, and would not have worked part-time. Hunter, J. also took into account the fact that the plaintiff’s job aspirations and experience did not reflect jobs chosen particularly by women.
¶ 462 Hunter, J. relied on an actuary report which supported the position that male tables should be used to project the earnings of university or college graduate women with strong attachments to paid work (para. 81):
… it supports the view that earnings differentials between men and women with college or university are not explained by gender but that they are explained by differing behaviour in the labour market. In other words, female graduates are not rewarded in the labour market differently than men when factors such as work experience, occupation, and hours of work are taken into consideration. This is not to say that an earnings gap does not exist. However, it supports the view that the gap is caused by behaviour and not by gender per se. It also appears that the earnings gap is diminishing with time.
In arriving at his decision Hunter, J. took into account the following factors: labour market contingencies, children, and the fact that the plaintiff might not obtain a bachelor of commerce degree.
¶ 463 In Toneguzzo, supra, a female infant suffered severe disabilities when she was deprived of oxygen during birth. At the trial, male earning tables were put before the trial judge through an expert witness for comparative purposes. However, counsel advised that they would not be relied upon. Consequently the trial judge did not consider the male wage tables as evidence. Although not asked to increase the award to compensate for the fact that earning tables for women reflect historic inequities, the trial judge took this factor into account when assessing damages.
¶ 464 At the Supreme Court of Canada, plaintiff’s counsel asked the Court to set aside the award for lost future earning capacity, and substitute an award based on male tables. McLachlin, J. speaking for the Court, found that consideration of this argument must await another case, where the proper evidentiary foundation has been laid (p.125).
¶ 465 In Cherry (Guardian ad litem of) v. Borsman (1992), 94 D.L.R. (4th) 487 (BCCA), where leave to the SCC was refused, an infant was born with severe disabilities because of a failed abortion. The trial judge assessed damages on the basis of two years post-secondary education for women. The plaintiff appealed arguing that male tables should have been used on the basis that by the time the infant would have entered the work force, wage gaps between men and women would have disappeared or diminished. The Court of Appeal did not intervene. The Court stated, however, that the trial judge could have enhanced the statistics to reflect the changing place of women in the work force, but there was no err in not doing so.
¶ 466 Two recent Ontario cases also deal with male and female income tables. In Mozersky v. Cushman (1997) 48 O.T.C. 161 (Ont. Crt. (G.D.)), a 20 year old, second year student at Cornell University, suffered a brain stem stroke caused by birth control pills, which left her with a complete loss of mobility. Although the action was dismissed, Cunningham, J. made an assessment of damages. He accepted for calculation purposes, evidence that the plaintiff would earn the same as the average male by the time she began to work. Cunningham, J. found that the plaintiff would have been able to balance having a family without taking any substantial time off from work, but did take into account the fact that women work part-time more often than men.
¶ 467 In D.A.A. v. D.K.B., (15 Dec 1995) Toronto 93 – CQ – 38589 [1995] O.J. No. 3901 (Q.L.) (Ont. Crt.(G.D.)) a sexual assault case, the issue of male/female wage tables was addressed in obiter by Wilson, J. Wilson, J. was of the view that inequities in the work place should not be projected into the future and that generous contingencies can account for future income projections. Blended male and female statistics were seen as reasonable for predicting the future income loss.
¶ 468 Clearly the evidence establishes that the exceptional individual characteristics of the Plaintiff are such that her abilities would have commanded the equivalent salary of her male counterparts. She would have established a strong attachment to her career. The use of male wage tables is justified. In any event, I am of the view that any award which I grant to the Plaintiff should not and cannot be solely determined by her gender.
¶ 469 It is entirely inappropriate that any assessment I make continues to reflect historic wage inequities. I cannot agree more with Chief Justice McEachern of the British Columbia Court of Appeal in Tucker, supra, that the courts must ensure as much as possible that the appropriate weight be given to societal trends in the labour market in order that the future loss of income properly reflects future circumstances. Where we differ is that I will not sanction the “reality” of pay inequity. The societal trend is and must embrace pay equity given our fundamental right to equality which is entrenched in the constitution. The courts have judicially recognized in tort law the historical discriminatory wage practices between males and females. The courts have endeavoured to alleviate this discrimination with the use of male or female wage tables modified by either negative or positive contingencies. However, I am of the view that these approaches merely mask the problem: how can the Court embrace pay inequity between males and females? I cannot apply a flawed process which perpetuates a discriminatory practice. The application of the contingencies, although in several cases reduce the wage gap, still sanction the disparity.
¶ 470 A growing understanding of the extent of discriminatory wage practices and the effect of this societal inequity must lead the Court to retire an antiquated or limited judicial yardstick and embrace a more realistic, expansive measurement legally grounded in equality. Equality is now a fundamental constitutional value in Canadian society. As Chief Justice Dixon (as he then was) has noted in Canada Safeway v. Brooks, [1989] 1 S.C.R. 129, there have been profound changes in women’s labour force participation. Since Brooks there has been even greater accommodation of the parental needs of working women. The Court cannot sanction future forecasting if it perpetuates the historic wage disparity between men and women. Accordingly, if there is a disparity between the male and female statistics in the employment category I have determined for the Plaintiff the male statistics shall be used, subject to the relevant contingencies. Once again if the contingencies are gender specific, then the contingencies applicable to males shall be used except in the case of life expectancy, for obvious reasons.
B. Determination of Loss
1. Pre-trial Loss of Income
¶ 471 The Plaintiff is entitled to recover for lost income between the date of the accident and the date of trial. The award is to be based upon gross and not net income. Accordingly, there is no reduction in the award for the amount of income tax which the Plaintiff would have paid if the amount had been earned as income.
¶ 472 As I have found that the Plaintiff would have worked as a physiotherapist I in a hospital setting, I assume that her wage would have been governed by the Collective Agreement between the Health Sciences Association of Alberta and Alberta Health (”HSA”). Unfortunately, no evidence was afforded me in this regard. If the HSA does not provide for an equal wage scale (in this case at the entry level) for a male and female physiotherapist I working the same amount of hours, I am of the view that male wage tables should be used for the reasons espoused above.
¶ 473 I ask counsel to determine pretrial loss of income by using the employment earnings as per the HSA for a physiotherapist I in a hospital setting from May of 1997 to the date of trial, using the male tables if there exists a wage disparity between male and female.
¶ 474 As the 1991/1992 data is outdated, I ask that counsel calculate the Plaintiff’s pretrial loss of earnings as a physiotherapist I in a hospital setting based on the most recent available data. If the parties cannot agree on the figure they are to come back before me within 30 days.
2. Loss of Future Income
¶ 475 The final figure under this head of damages is at best a guestimate and has been judicially referred to as “crystal ball gazing”. Donald J.A. in Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at 263 describes it as follows:
Assessing damages in this area involves an estimate based on prophecies. Mathematical certainty is impossible in virtually all cases. While a comparative scenario approach will often be useful, the judge must step back and look at all the relevant factors, especially general incapacity, before fixing an amount.
¶ 476 First, I must assess what the Plaintiff’s future employment would most likely have been but for the accident. Then I must determine how long the Plaintiff would have continued employment in the work force but for the accident.
¶ 477 I will assess the Plaintiff’s future income loss on the basis of the present value of the amount the Plaintiff likely would have earned over her lifetime but for her injuries, less the present value of the amount the Plaintiff likely will be able to earn. In this regard, I make my assessment by looking at the Plaintiff’s pre-injury prospects for employment based on the particular circumstances of this case and the evidence presented to me as above discussed together with her future employment prospects post-injury.
(i) Pre-Injury
¶ 478 I have found that the Plaintiff would have been, but for the accident, a physiotherapist I in a hospital setting working until the assumed retirement age of 65 years. I assume that more recent data is now available and should be used for the re-calculation.
(a) Pre-Injury Contingencies
¶ 479 The two experts disagreed as to the value of the appropriate pre-injury contingencies to be applied.
Non-Participation Contingency
¶ 480 In Dr. Bruce’s opinion the calculation should not include a non-participation contingency which would incorporate the tendency for the Plaintiff to withdraw partially or fully from the labour force for any reason other than disability. Mr. Taunton disagrees and opines that given the Plaintiff’s stated desire to have children she would have had at least some short withdrawals from the labour force for child-bearing purposes. Also, there would be other applicable reasons for her withdrawal, for example, voluntary retirement, temporary absences to care for other family members or to pursue other interests such as education or travel.
¶ 481 I agree with Dr. Bruce that absent the accident, the Plaintiff would have been committed to her career and there would not have been a significant withdrawal from the labour force. As I have earlier determined, the Plaintiff would have employed the services of a nanny. Also, again as earlier discussed I must countenance the societal trend for accommodation of a working mother’s parental responsibilities. However, having said that I accept Mr. Taunton’s submission that the calculation must give consideration to the contingency of voluntary withdrawal and the possibility of part-time work based, however, upon the male statistics for a physiotherapist I.
(aa) Positive Contingencies Fringe Benefits
¶ 482 The parties must review this contingency considering my earlier finding of the Plaintiff’s employability.
(bb) Negative Contingencies
¶ 483 In addition to the non-participation contingency, there are three other negative contingencies that must be considered in the re-calculation: unemployment, disability, and mortality. These must be calculated in the context of my determination of the Plaintiff working as a physiotherapist I in a hospital setting based upon the male statistics if there is a disparity, during the entire employment period, which contemplates retirement at 65 years of age.
¶ 484 The agreed discount rate shall be applied (as later defined).
¶ 485 If the parties cannot agree on the amount or the methodology to be employed they are to be back before me within 30 days.
(ii) Post-Injury
¶ 486 At trial, with respect to the Plaintiff’s post-injury career path, Dr. Bruce opined that due to the Plaintiff’s residual deficits, the Plaintiff was competitively unemployable. As a result, based on this assumption, he was of the view that the present discounted value of the Plaintiff’s loss of future income would be equal to the present discounted value of her future pre-accident income.
¶ 487 In contrast, Mr. Taunton opined that the Plaintiff’s future income would be commensurate with one of the following:
a) the average employment income of an Alberta female working as a Recreation Therapist with an increased incidence of part-time work; or
b) the average employment income of an Alberta female working as a Dietitian/Nutritionist with an increased incidence of part-time working.
¶ 488 Mr. Taunton provided calculations for four scenarios, none of which assumed that the Plaintiff would have been capable of full-time work but rather that the Plaintiff would work either 50 percent or 75 percent of the time (3445).
¶ 489 I have held that the Plaintiff will, upon completion of her post-graduate diploma, secure employment in recreation administration or the health promotion field, commencing such employment in May 2002. As determined above, I assess her employability potential at 50 percent, and find she will be capable of 60 percent full-time work. I further find that the Plaintiff will retire at the age of 52.
¶ 490 Dr. Bruce had assumed for purposes of his expert report and testimony that the Plaintiff would live a normal life expectancy. However, at trial he agreed that Dr. Geisler’s testimony should be accepted and that his figures must be re-calculated. Her reduced life expectancy will be that given by Dr. Geisler in his testimony, namely five years.
¶ 491 I would ask that the parties re-calculate the Plaintiff’s future post-injury employment income based upon my findings including the survival contingency in light of the reduced mortality rate of five years and once again utilizing male tables.
(iii) Discount Rate
¶ 492 During the course of the trial, the parties agreed to the discount rate contained in Mr. Taunton’s original report of September 18, 1997 (2882). The discount rate employed in this report for calculation purposes represents the difference between the rate of return on investment and average price inflation. The initial rate employed is 4.75 percent per year in the first year following the trial date declining over a ten-year period to a long-term rate of 3.50 percent per year (see Exhibit 33).
(iv) Income Tax Gross-up
¶ 493 The parties further agreed that they would deal with the issue of the tax gross-up following the Court’s determination on liability, income loss and cost of future care (2843, 2883). With respect to the gross-up calculation for the income generating investments, Dr. Bruce opined that it would vary according to the particular type of investment. If the funds were put into investments that generate capital gains, Dr. Bruce was of the view there would be a lifetime capital gain exemption that would lower the taxes as compared to the scenario in which the money would be placed into a vehicle that generated interest as there is no exemption on interest and it would be fully taxable (2884).
¶ 494 Dr. Bruce did not have a strong opinion as to the preferable type of investment for the Plaintiff. Dr. Bruce preferred that the funds be put into a fairly safe and interest generating vehicle rather than an equity fund and that a mix would probably be most appropriate.
¶ 495 Mr. Taunton was of the view that it is important to recognize that any estimates generated with respect to the income tax gross-up were dependent upon the size of the awards for future care and future loss of employment income, as well as the timing of “draws” from the resulting funds established for this purpose.
¶ 496 According to Mr. Taunton the effect of reducing or increasing the future cost of care award would result in a corresponding reduction or increase in the income tax gross-up, expressed both in percentage terms and on an absolute dollar basis. It would not be appropriate, for example, to use the percentage gross-up values cited in Table 1 of his report where cost of care is adjusted sharply downwards.
¶ 497 According to Mr. Taunton it is standard practice in cases of substantial future care awards to consider two investment options: (1) The entire income is invested in a portfolio of interest bearing securities with the effect that all of the income will be taxed upon receipt; or (2) A mixed portfolio consisting of some proportion of interest bearing securities and some equities the effect of which is that some of the income received by way of investment income would be sheltered from tax (3461).
¶ 498 Mr. Taunton thought that it would be prudent for an individual who receives a large award, especially at the Plaintiff’s age, to look at a mixed portfolio, where the dividends or capital gains attract more favourable tax treatment, and given that, historically, equities have had a better return than interest bearing securities. Mr. Taunton was of the view that this would ensure the portfolio’s growth in value much more quickly by having some investment in the equity market (3462).
¶ 499 According to Mr. Taunton, the literature on investment risks suggests that it is inherently less risky to invest in two or more classes of assets than to invest in one class (3462). Mr. Taunton opined that if the Plaintiff were to invest in a mixed portfolio she would actually minimize her investment risk (3462).
¶ 500 According to Dr. Bruce, Mr. Taunton presented gross-up estimates which assume that the Plaintiff’s awards would be invested in a mixed portfolio consisting of 65 percent interest-bearing securities and 35 percent equities. Dr. Bruce submitted that this has the effect of lowering the Plaintiff’s tax burden and therefore the gross-up, compared to the other estimates where the awards are assumed to be placed entirely in interest-bearing securities. It is Dr. Bruce’s understanding that the Plaintiff is not required to invest in equities therefore the mixed-portfolio gross-up results may be irrelevant.
¶ 501 Given that the Plaintiff is not required to invest in equities, for purposes of the income tax gross-up, the calculations should be based on the assumption that the award would be invested solely in interest-bearing securities. In this regard, I accept the approach taken by Matheson, J. in Taguchi v. Stuparyk (1994), 16 Alta. L.R. (3rd) 72 at 83 (Alta. Q.B.), and would not require the Plaintiff to invest in equities.
(v) Conclusion
¶ 502 Because of the divergence of opinion of the experts, the failure to consider a diminished life expectancy and the fact that the income tax gross-up will be calculated after my determination, I return the issue of future loss of income to the parties for the final calculation. Having made my findings of fact, I ask counsel to have the economists make the necessary calculations taking into account the contingencies addressed above, the agreed upon discount rate, and the income tax gross-up. The parties are to complete the calculations and have reached an agreement or be back before me within 30 days.
VII. COST OF FUTURE CARE
¶ 503 The Plaintiff has been left with permanent incomplete quadriplegia, with no movement in her lower extremities, mobility confined to a wheelchair, and only very slight movement in her upper extremities, with very limited movement of her left hand. She was rendered permanently incontinent and requires regular catheterizations for the rest of her life, and bowel routines every other day. There is some attendant risk of infection. She is also at constant risk of a variety of complications and sequelae. In cases such as this there is great difficulty in assessing accurately the Plaintiff’s future long term care costs in light of the fact that they must reflect an estimate of care for the remainder of her life. However, the difficulty in assessing such damages is not a bar to the recovery of damages.
¶ 504 The Plaintiff claims significant costs for her future care. Damages for cost of future care are intended to enable the Plaintiff to be rehabilitated so far as is reasonable: Andrews, infra.
¶ 505 Because of her condition the Plaintiff will need consistent, effective attendant care for the rest of her life in order to avoid complications. Her wish is to continue living as independently as possible. Her life expectancy is approximately 76 years of age. But for this tragedy, the 23 year old Plaintiff would have had a normal life expectation of a further 58.7 years, (1990-1992 Canadian Life Tables, Dr. Geisler’s June 30, 1997 report, Exhibit 1, Tab 34) which would take her to approximately 81.7 years. This accident has robbed her of those precious years.
A. Summary of Evidence of Ms. Lancaster and Ms. Kirker
¶ 506 Much evidence was devoted to this aspect of the case. The Plaintiff and the Defendant presented very different versions of what would be required for goods and services. The detailed list of future costs as submitted by Ms. Lancaster is found in Exhibit 1, Tab 39, a collective report dated July 15, 1997 and October 24, 1997 and Exhibit 2, Tab 2. A collective report of Ms. Kirker is dated September 11, 1997 and November 1, 1997. I will now review the testimonies of both Ms. Lancaster and Ms. Kirker.
¶ 507 Ms. Susan Lancaster was qualified as an expert capable of giving opinion evidence as a rehabilitation nurse regarding the nature and extent of goods and services, and their related costs, available to the Plaintiff in maximizing her health and remaining amenities of life given her spinal cord injury.
¶ 508 Ms. Lancaster is a registered nurse in the Provinces of British Columbia and Alberta with a speciality in rehabilitation nursing. She has developed a substantial amount of experience in the field of rehabilitation, completing over 1,000 cost of future care reports for persons with quadriplegia, paraplegia, and with brain and back injuries. She has testified more than 100 times in British Columbia and Alberta (2413).
¶ 509 Ms. Karen Kirker, the witness for the Defendants, was qualified as an expert in the area of occupational therapy capable of providing evidence as to the cost of goods and services required by the Plaintiff.
¶ 510 Ms. Kirker has a Bachelor of Science in Occupational Therapy obtained in 1980 and a Master of Science in Occupational Therapy completed in December 1995. Ms. Kirker is self-employed and has worked for the last 10 years as an occupational therapy consultant. Among her diverse work experience Ms. Kirker has worked with spinal cord injured persons at an extended care centre and at the Calgary General Hospital. She also has worked at the Alberta Children’s Hospital at the preschool clinic, the neuromuscular clinic, and as a member of the mobile team. Ms. Kirker has been employed with Care West Outreach doing equipment, home and service assessments and for the Workers’ Compensation Board doing cost of care consulting and functional ability assessments. She has acted as an expert witness for the Courts on 13 occasions.
¶ 511 The opinions of Dr. Geisler and Dr. Rocheleau will also be considered where appropriate in this review.
B. Methodology
1. Ms. Lancaster
¶ 512 Ms. Lancaster met with the Plaintiff on June 30, 1992 and April 23, 1997, and spoke with her on the telephone six times. Each of the interviews lasted five to six hours.
¶ 513 Ms. Lancaster accessed the Plaintiff’s medical reports prior to meeting with her. She also reviewed the Examinations for Discovery and the treatment received by the Plaintiff at the hospital and by her physician. Ms. Lancaster queried the Plaintiff as to her daily activities. She also had the Plaintiff fill out pain forms.
2. Ms. Kirker
¶ 514 Ms. Kirker interviewed the Plaintiff at her apartment on July 9, 1997 for 3 hours at which time she inspected the Plaintiff’s current living arrangements for accessibility and the need for modifications (3065). Ms. Kirker reviewed the Plaintiff’s medical documents and interviewed the Plaintiff for the purpose of gathering background information (3064). She reviewed the Plaintiff’s typical day in order to establish the aids, services and equipment needed and then researched the Plaintiff’s equipment needs, consulted local suppliers, and provided a cost analysis of the recommended items (3065).
C. General Assessment Results
¶ 515 Ms. Lancaster testified that the Plaintiff’s major concern is coping with the loss of her independence. The Plaintiff advised Ms. Lancaster of her desire to be as independent as possible in her work, her everyday life and in her relationships in spite of her disability. She would like to “separate the woman from the quadriplegic”. Although the Plaintiff understands the reality of her disability, she is very determined to be treated normally (2422).
¶ 516 Ms. Lancaster submitted that the Plaintiff was afraid of losing more of her independence as she aged. She was particularly concerned with autonomic dysreflexia which, according to Ms. Lancaster, is life threatening for individuals with quadriplegia.
¶ 517 Ms. Lancaster testified that the Plaintiff was also concerned about the development of osteoporosis. As the Plaintiff also has scoliosis, she was concerned with that condition and how it would affect her health as she aged.
¶ 518 Ms. Lancaster found the Plaintiff to be scrupulous with her skin care and cognizant of the importance of not developing a decubitus ulcer because of the serious ramifications to her physical well-being.
¶ 519 Ms. Lancaster opined that the Plaintiff had a good relationship with her brothers and sisters. She understood that the Plaintiff wanted to have a family and had expressed this desire to her family physician.
¶ 520 Ms. Lancaster testified that the Plaintiff would like to receive enough care to permit her to live as normal a life as possible ensuring spontaneity, in contrast to how she was now living – a structured rigid lifestyle, on a regime every several hours, waiting for attendant care when help was required. The Plaintiff seeks her own private living space with an attendant available when required (2422).
¶ 521 I was urged by the Plaintiff to accept Ms. Lancaster’s recommendations whenever her evidence conflicted with that of Ms. Kirker because Ms. Lancaster had substantially more experience testifying in Court and preparing cost of future care reports and had spent considerably more time with the Plaintiff. However, as I am satisfied that both individuals gave expert assistance to the Court, my decision will be predicated on an assessment of the recommendations and supporting rationale on an item by item basis (395). I do, however, acknowledge that Ms. Lancaster spent considerably more time with the Plaintiff in the assessment of her needs.
¶ 522 The test for compensation related to equipment or treatment is set out in Milina v. Bartsh (1985), 49 B.C.L.R. (2d) 33 (S.C.), McLachlin J. at 84; appeal dismissed (1987) 49 B.C.L.R. (2d) 99 (B.C.C.A.). This authority stands for the proposition that:
1. There must be medical justification for claims for cost of future care, and
2. The claims must be reasonable.
¶ 523 The parties have agreed on certain items. There are, however, numerous items in dispute. I will deal with each item separately.
D. Housing Accommodations
¶ 524 At the time of the April 1997 assessment the Plaintiff was living in a wheelchair accessible, government subsidized apartment at a cost of $260 per month (2422). Ms. Lancaster advises that the Plaintiff will not continue to live in that location on an indefinite basis as she desires to live in a house. The Plaintiff wishes to live in a “normal environment” which to her signifies a home similar to that of her brothers and sisters (2423). The Plaintiff wishes to purchase a home at the age of 25 or 26 after having obtained her graduate degree.
¶ 525 Ms. Lancaster calculated the cost differential between a regular home and a wheelchair accessible home to be approximately $55,000 (2435). A wheelchair accessible home provides for wider hallways, a home on grade (one level), accessible bathrooms, and bedrooms large enough for the Plaintiff to manoeuvre her wheelchair. Ms. Lancaster opined that the Plaintiff would require a much larger home than she would have needed but for the injury, providing for two extra bedrooms for the live-in caregiver and the live-in nanny (2436).
¶ 526 Ms. Kirker also advised that the Plaintiff requires wheelchair accessible housing and finds that the estimated cost for renovations to an existing home ranges from $50,000 to $60,000 (3076). In Ms. Kirker’s view the cost would be closer to $60,000 if kitchen modifications were required. This cost would cover wide doorways, flooring, a bathroom, including a bathtub as well as a wheel-in-shower, light switches, door and tap levers, and a kitchen and alarm intercom system (3075-76). Ms. Kirker testified that the trend now is to provide for a tiled wheel-in shower with a non-slip floor surface (3112).
¶ 527 Ms. Kirker was of the view that it is not clear why the Plaintiff would require two additional bedrooms as there would be a duplication of services with a live-in nanny as well as live-in caregiver. Ms. Kirker also submits that Ms. Lancaster did not consider that the Plaintiff may have had a live-in nanny for her children regardless of injury.
¶ 528 Dr. Geisler was of the opinion that the main consideration for the Plaintiff is that wherever she lives, she must have the security of attendant care and her living accommodation must be wheelchair accessible. Her living accommodation should ideally have two doorways from which she can enter and exit because if one exit is blocked, for instance because of a fire hazard, she has access to a second exit. Within the house, all the doorways must be accessible to the wheelchair. The floor coverings should be hardwood, linoleum or very short broadloom pile which make for ease of wheelchair manoeuverability. Her bedroom must have sufficient space so that she can turn about in her wheelchair. If in the future she cannot transfer unaided, and presently she cannot because of the lack of grasp, then there must be sufficient space so that a mechanical lifting device can be moved about easily. Failing that, the Plaintiff would have to be transferred manually by a caregiver.
¶ 529 Dr. Geisler opined that the house in which the Plaintiff lives should ideally be a bungalow. If the Plaintiff is desirous of a two level house then she will require an elevating device to get her from floor to floor.
¶ 530 Dr. Geisler was of the view that the Plaintiff’s bathroom must not only be accessible but should have appropriate grab bars so that she can steady herself in transferring from her wheelchair to the toilet or the raised toilet seat. The wash basin must be at such a height that the Plaintiff, while in her wheelchair, can get underneath it so that she is close to the water faucets. The Plaintiff’s bathtub can be incorporated into the shower or she can have a separate shower stall.
¶ 531 Dr. Geisler testified that it would be easier for the Plaintiff if her bed was fixed with an overhead paraplegic-type bar. She could learn to use it in transfers and so ease the burden on herself at night-time when she must be turned or indeed even when she is attended by a caregiver.
¶ 532 In Dr. Geisler’s opinion the house should be air-conditioned and there should be an intercommunication system from each room to the front and back door so that she can communicate with whomever might be visiting.
¶ 533 If the Plaintiff’s garage is not attached to the house and there is an appropriately ramped entrance from the garage to the house, then this ramp should be covered to protect the Plaintiff during inclement weather. The entrances to her house should be appropriately ramped.
¶ 534 Dr. Rocheleau in his report of June 5, 1997 indicates that the Plaintiff would be best living in an environment where the home is one level and is wheelchair accessible. It should incorporate features for individuals who are wheelchair ambulatory, including the type of flooring, the width of the hallways, the width of door openings, space under the counter tops, and ease of entry to bathrooms and shower areas.
¶ 535 Ms. Lancaster was of the view that the Plaintiff should have a kitchen fully wheelchair accessible (2436). Ms. Lancaster recommended a Medi-norm kitchen which works on a hydraulic system and can be used by an able-bodied person as well as a person in a wheelchair. According to Ms. Lancaster, the Medi-norm kitchen allows the upper cupboards to move up and down as well as permits adjustment of the height of the lower cupboards. Ms. Lancaster was of the view that the Plaintiff would benefit from a Medi-norm kitchen as it is specifically designed for wheelchair use.
¶ 536 The two-motor system for the Medi-norm kitchen costs $4,200 and installation is estimated to be between $750 and $1,000. Replacement should occur every 25 years. In total Ms. Lancaster priced the Medi-norm kitchen at $5,000.
¶ 537 Ms. Kirker advised that she discussed the recommendation for a Medi-norm kitchen with the principal consultant of Barrier Free Planning and Design who indicated the Medi-norm kitchen was costly. The preferred option in the consultant’s view would be to have a portion of the kitchen modified for the wheelchair user (3077). I accept the recommendation of Ms. Kirker in this regard.
¶ 538 Dr. Geisler advised that the Plaintiff’s kitchen should be of such a design that she has easy wheelchair access to the refrigerator, the oven and the dishwasher and if it is housed in the kitchen, to the laundry. Counters should be at a level to make it easy for her to move food about and to prepare food.
¶ 539 I conclude that for the housing accommodation, including the cost for kitchen modification, the cost differential should be set at $60,000. Neither Ms. Lancaster nor Ms. Kirker addressed the replacement period for the housing accommodation, therefore, I have made no determination in that regard. However, if replacement of any inclusive items has not been provided for, failing agreement the parties are at liberty to come back before me within 30 days.
E. Miscellaneous Items
¶ 540 The following items are in addition to the housing accommodation cost differential.
– Scald Guard And Pressure Balancing Valve
1. Ms. Lancaster
¶ 541 Ms. Lancaster provided for a Scald Guard and Pressure Balancing Valve for the shower to prevent burns when cold water is removed from the system. The cost is $150, with the initial installation cost of $125 and recommended replacement every 25 years.
2. Ms. Kirker
¶ 542 Ms. Kirker advised that she found the replacement time and installation cost for the scald guard and pressure balancing valve to be reasonable.
¶ 543 I accept Ms. Lancaster’s recommendation.
¶ 544 Dr. Geisler opined that the water drains must be protected with a heat resistant substance, so there is no danger if the Plaintiff’s knees come in contact with the pipes and risk burning, mindful that the Plaintiff does not have normal skin sensation. As I received no evidence from either Ms. Lancaster or Ms. Kirker that this was the same item as the scald guard, if it is not, then I approve this item. The parties should agree on the cost, whether or not it is inclusive of the housing accommodation, and the replacement time, failing which they are to be back before me within 30 days.