





CITATION:
Degennaro
v. Oakville Trafalgar Memorial
          Hospital, 2011 ONCA 319



DATE: 20110426



DOCKET: C50853



COURT OF APPEAL FOR ONTARIO



LaForme, Rouleau and Watt JJ.A.



BETWEEN



Diane
          Degennaro and Paul Degennaro, Justin
          Degennaro and Ryan Degennaro, minors by their Litigation Guardian,
          Diane Degennaro




Plaintiffs (Responding
          Parties/Respondents)




and



Oakville
          Trafalgar Memorial Hospital and Halton Healthcare Services




Defendants (Moving Parties/Appellants)




Deborah Berlach and Emily McKernan, for the appellants



Paul J. Pape and Shantona
          Chaudhury, for the respondents



Heard: January 18, 2011



On appeal from the judgment of
          Justice Douglas K. Gray of the Superior Court of Justice, dated July 2, 2009,
          with reasons reported at (2009),
67 C.C.L.T. (3d) 294
.



Rouleau J.A.:



OVERVIEW

[1]

This
    appeal concerns an accident that occurred at the appellant hospital in which
    the respondent Diane Degennaro fell and cracked her sacrum. She experienced
    chronic pain from the injury which was diagnosed as fibromyalgia several years
    later. The main issue at trial was causation because Ms. Degennaro had been
    involved in a car accident between the initial injury and the fibromyalgia
    diagnosis. The trial judge found that the sacrum injury was the cause for the
    fibromyalgia and he awarded substantial damages for current and future costs of
    care as well as lost income and non-pecuniary damages totaling over $3 million.
    The appellants appeal both liability and the award of $1.7 million for the
    costs of future care.

FACTS

[2]

On
    May 19, 1999, Ms. Degennaros son became ill. He was admitted to the appellant
    Oakville Trafalgar Memorial Hospital on May 20. That night, Ms. Degennaro
    stayed with her son in his room. A nurse showed her a bed on which she could
    sleep. The bed was in fact a chair that could fold out entirely flat. She sat
    on the end of the bed to make a telephone call and the bed buckled. Ms.
    Degennaro fell heavily onto the floor, landing on her buttocks and lower back.
    She felt excruciating pain and later testified that she might have blacked out.
    The nurse who had shown her the bed attended to her and said, Youre not
    supposed to sit on that end of the bed  it collapses.

[3]

Following
    the fall, Ms. Degennaro took Extra Strength Tylenol to help ease the pain. When
    the pain continued, she had an X-ray performed on May 31, 1999, and was told
    that she had a cracked sacrum. Over the period that followed, she was treated
    by her family physician, Dr. Trudy Chernin. Ms. Degennaros pain persisted, although
    she continued to work. She consulted two specialists, both of whom told her
    that surgery was not an option. Dr. Chernin also referred Ms. Degennaro to an
    acupuncturist/chiropractor and a massage therapist.

[4]

None
    of the treatment she received could relieve the pain and, on May 28, 2001, on
    the advice of Dr. Chernin, Ms. Degennaro stopped working. She began taking
    anti-depressants and meeting with a psychiatrist.

[5]

In
    February 2002, Ms. Degennaro was involved in a motor vehicle accident. Her left
    arm and the left side of her neck were injured. There was no injury to her
    lower back or sacrum and the trial judge found that there was no aggravation of
    her earlier injury. The trial judge accepted that the injuries suffered in the
    motor vehicle accident had healed by the fall of 2002.

[6]

On
    the prompting of her disability insurer, Ms. Degennaro attempted a gradual
    return to work starting in June 2003. As her hours of work increased, the pain
    worsened and spread to other parts of her body. She then returned to see Dr.
    Chernin who diagnosed her as having fibromyalgia.

[7]

Ms.
    Degennaro stopped working on July 25, 2003, and has not returned to work since.
    She has seen several specialists since that date and manages her pain with
    medication and various treatments.

[8]

At
    trial both the appellants and the respondents relied on the testimony of
    several medical witnesses. The respondents called: Dr. Chernin; Erin Finnegan,
    Ms. Degennaros massage therapist; Dr. David Saul, a general practitioner with
    expertise in chronic pain; Dr. Steve Blitzer, a board certified pain management
    physician; Dr. Gregory Ko, a board certified physiatrist, with a sub-specialty
    in chronic pain; and Dr.
Gordon Lawson, a
    chiropractor who assisted Dr. Ko with doing an assessment of Ms. Degennaro
. Each of the medical witnesses
    called by the respondents had treated Ms. Degennaro at some point in time.
    However, with the exception of Dr. Chernin and Ms. Finnegan, none had treated
    her prior to the car accident. The evidence of these experts supported Ms.
    Degennaros claim that the fibromyalgia was caused by the hospital fall and not
    by the 2002 motor vehicle accident.

[9]

The
    appellants called two medical experts: Dr. Benjamin Clark and Dr. Michael
    Devlin, both physiatrists who treat chronic pain. Prior to the trial, Dr.
    Devlin examined Ms. Degennaro and reviewed the documentary evidence while Dr.
    Clark only reviewed the documentary evidence prior to providing his report.
    These two experts opined that the fibromyalgia was caused by the 2002 motor
    vehicle accident.

[10]

Both
    Ms. Degennaro and her husband Paul testified at the trial regarding the degree
    to which their home life had changed following the injury. They stated that
    Paul was forced to assume many of the daily household tasks and
    responsibilities related to the care of their children. Paul Degennaro
    testified that he was forced to change his shifts at work and switch to
    part-time hours in order to accommodate his additional household duties.

[11]

In
    support of their claim for future damages, the respondents filed a set of
    documents that included two reports authored by rehabilitation counselor Anne
    Wiega, the first dated April 25, 2006, and the second dated October 28, 2008.
    There was also a report prepared by forensic accountant Elaine G. Vegotsky
    dated November 6, 2008. The appellants trial counsel admitted that the reports
    were authentic but did not admit the truth of their contents. As a result, the
    trial judge entered the reports as exhibits, on consent, subject to proof. The
    respondents did not call Ms. Wiega or Ms. Vegotsky as witnesses and the
    appellants did not ask to have them produced for cross-examination.

[12]

During
    final submissions, the respondents counsel directed the judge to the Vegotsky
    report for quantification of the claim for damages of costs of future care. He
    stated that the expenses claimed in that report stood unchallenged,
    uncontradicted, and ought not to be disturbed.

[13]

The
    appellants trial counsel had led no expert evidence on the issue of costs of
    future care and his submissions on the issue were very limited. Those
    submissions are contained in the following exchange with the trial judge:

MR. BIRLEY: I say in respect of the
    future cost of care, that this couple has been functioning. The evidence is
    that Mr. Degennaro has been shouldering some of the burden, but that the amount
    of future cost of care is really minimal rather than that which is reflected in
    the reports.

THE COURT: Well you didnt cross
    examine on them.

MR. BIRLEY: No, but those are my
    submissions.

THE COURT: Okay. But I mean, what do
    I base that on apart from
your


MR. BIRLEY: The evidence that.

THE COURT: exhortation that I
    should ignore this?

MR. BIRLEY: Well the evidence Your
    Honour is that this is a functioning couple without spending the amount of
    money that is sought, theyve been functioning for ten years.

THE COURT: Okay, but shes taking
    all kinds of drugs and so she says it will cost, assuming she gets Botox, which
    everybody seems to have recommended but she cant afford right now. So by
    allowing her that, plus all the other drugs that shes taking, thats over
    almost $600,000 right here.

MR. BIRLEY: Yes.

THE COURT: What do I do to ignore
    that apart from saying, you know, you say  what else do you say I should
    ignore from here?

MR. BIRLEY: The help around the
    house; help around the garden.

THE COURT: Well she says she wants a
    manual wheelchair. I mean, why shouldnt I  how do I just ignore that and say
    well, I dont really think shell need that even though she did have a scooter
    and found that helpful. Isnt that a reasonable expenditure?

MR. BIRLEY: Well, Your Honour, you
    know, what we have here, what we know.

THE COURT: Because age 65, assuming
    that shes in the condition shes in now, she says shell need a personal
    support worker. Well I mean, intuitively I would say, well that seems
    reasonable.

MR.
    BIRLEY: Okay. You have my submission.

[14]

In
    his reasons for judgment, the trial judge found that the appellants owed a
    clear duty of care and that they had fallen below the standard of care. He
    found that the symptoms resulting from the motor vehicle accident had resolved
    themselves within a year of the accident and, as a result, he rejected the
    appellants argument that the precipitating event for the fibromyalgia was the
    2002 car accident. The trial judge concluded that the fibromyalgia was caused
    by the injury suffered by Ms. Degennaro when she fell at the hospital in 1999.
    He went on to find that the specific injury suffered by Ms. Degennaro, chronic
    pain, was a foreseeable result in a person of ordinary fortitude. The eventual
    fibromyalgia diagnosis was a classic thin-skulled plaintiff situation. As a
    result, all of the resulting damages in this case were foreseeable.

[15]

In
    determining the amount of damages, the trial judge adopted the figures for the
    costs of future care set out in the Vegotsky report. He stated that these
totalled

$1,767,800.
[1]
He then applied a five percent
    reduction to this figure for contingencies, resulting in an award of $1,679,410
    for the costs of future care.

[16]

Regarding
    his reliance on the Vegotsky report, the trial judge commented at para. 94 of
    his reasons:

Assumptions
    are based on facts that are not within the knowledge of the analyst. Most of
    these facts were not proved by independent evidence. Notwithstanding this,
    counsel for the defendants did not object to the introduction of the report,
    nor did he take the position that I could not take its conclusions at face
    value, notwithstanding that most of the underlying facts and assumptions had
    not been proved by independent evidence. In argument, counsel for the
    defendants did not submit that the underlying facts and assumptions had not
    been proven, and did not argue that I could not rely on the report. He simply
    argued that the amounts claimed for the projected future loss of income and the
    future costs of care should be reduced for contingencies.

[17]

The
    trial judge returned to this issue again at para. 165, stating:

Furthermore,
    the damages consisting of loss of income to date, in the amount of $308,100,
    the future loss of income, in the amount of $934,800, and the present value of
    future costs, grossed up by 15%, in the amount of $1,767,800, are not in
    dispute. The only issue is whether the claims for  future costs should be
    reduced for contingencies.

[18]

As
    a result, the trial judge fixed the amount of damages at $3,073,210.45, which
    included the $1,679,410 in costs of future care (that is, $1,767,800 less 5%
    for contingencies).

ISSUES

[19]

On
    appeal, the appellants argue that the trial judge erred in three respects:

(1)

in
    rejecting the evidence of the appellants medical experts on the basis that
    they were not treating physicians;

(2)

in
    concluding that it was foreseeable that Ms. Degennaro would develop
    fibromyalgia four years after her fall and after her intervening car accident;
    and

(3)

in
awarding $1,679,410 in costs of future care in
    the absence of evidence supporting any need.

[20]

For
    the reasons that follow, I would allow the appeal in part to vary the amount
    awarded for the costs of future care.

ANALYSIS

1. The rejection of the
    evidence of the appellants medical experts

[21]

As
    noted earlier, the appellants called two physicians, Dr. Clark and Dr. Devlin,
    to give expert evidence on the issue of causation. Both of these physicians
    were experienced and qualified to give expert evidence on the subject of
    chronic pain and fibromyalgia. Their opinion was that the fibromyalgia was caused
    by the 2002 motor vehicle accident.

[22]

The
    appellants submit that the trial judge rejected their evidence and preferred
    the evidence of the respondents experts on the basis that the respondents
    experts were Ms. Degennaros treating physicians. This, in the appellants
    view, was an error of law. The appellants argue that the fact that an expert is
    a treating physician is not a proper basis to prefer that evidence and, in
    fact, should lead a court to assign less weight to that experts evidence and
    not more. Cases such as
Williams
    (Litigation Guardian of) v. Bowler
,
[2005] O.T.C.
    680
(S.C.), and
Greer v. Horton
(1996),
38 C.C.L.I. (2d) 251 (Ont. Gen. Div.)
, stand for the proposition that a treating
    physician who has a relationship with the plaintiff may not have the same
    objectivity as an independent expert. The appellants maintain that rejecting
    the evidence of independent experts because they are not treating physicians,
    as the trial judge did in this case, creates unacceptable unfairness for
    defendants. Defendants are not permitted to speak with, let alone retain, a
    plaintiffs treating physicians. This places defendants in the position where
    they will always be at a disadvantage as they can never tender treating
    physicians as experts.

[23]

I
    would not give effect to this submission. The trial judge did not, as the
    appellants suggest, simply reject the appellants experts solely on the basis
    that they were not the treating physicians. In reaching his decision to prefer
    the respondents experts, the trial judge considered a number of factors.
    First, as the trial judge explained, the appellants own expert, Dr. Clark,
    agreed on cross-examination that treating physicians were in a better position
    to make a diagnosis of fibromyalgia than a doctor conducting a paper review.
    Further, the trial judge found the qualifications of one of the respondents
    expert on chronic pain, Dr.
Ko
, to be superior to
    those of the appellants experts. Also, there were problems with the evidence
    of both of the appellants experts. Dr. Clark acknowledged in his testimony
    that the hospital fall was a material cause of Ms. Degennaros fibromyalgia and
    Dr. Devlin conceded on cross-examination that, when he prepared his opinion, he
    had not been aware that some of Ms. Degennaros upper body symptoms had been
    observed before the car accident occurred. There was, therefore, ample basis
    for the trial judges decision to prefer the opinion of the respondents
    experts.

[24]

Finally,
    I do not view the cases cited by the appellants as providing support for their
    position. These cases simply provide that where a treating physician has a
    personal interest in the outcome of the case or lacks the objectivity and
    independence essential to a medical expert, this may adversely impact the
    weight to be given to the experts testimony. There was no suggestion that the
    experts who testified on behalf of the respondents lacked objectivity or
    independence.

2.
Was
the fibromyalgia foreseeable?

[25]

The
    appellants argue that damages flowing from the fibromyalgia were not
    foreseeable because the fibromyalgia developed four years after the fall and
    required an intervening traumatic event, the car accident. In the appellants
    submission, the trial judge ought to have applied the Supreme Court of Canadas
    decision in
Mustapha v. Culligan of
    Canada Ltd.
, [2008] 2 S.C.R. 114, and found that the damages were too
    remote to warrant recovery.

[26]

I
    would reject this submission. The trial judge found as a fact that the
    debilitating pain suffered by Ms. Degennaro commenced immediately after the
    hospital incident in May 1999 and that, but for this incident, Ms. Degennaro
    would not be suffering from the chronic pain with which she is now afflicted.
    The trial judge accepted the evidence of the respondents experts that the
    motor vehicle accident played no role in the development of the chronic pain
    and fibromyalgia. The trial judge concluded that it is foreseeable that
    chronic pain may result from a physical injury and that this is a classic
    thin-skulled plaintiff situation and the defendants must take the plaintiff
    as they find her. These findings are well supported in the evidence and are
    entitled to deference on appeal.

[27]

In
    my view, the trial judge did not misapply
Mustapha
,
    which does not stand for the proposition that a defendant needs to foresee all
    of the damage suffered by the plaintiff. Rather, the defendant needs to
    reasonably foresee damages suffered by a person of reasonable fortitude. Where,
    as here, the damages suffered are more extensive because the plaintiff was
    thin-skulled, the defendant is nonetheless liable.

3. The costs of future
    care

[28]

The
    appellants submit that the trial judge erred in awarding the respondents close
    to $1.7 million in damages for costs of future care without proof of their
    entitlement to these damages. The trial judge stated that the amounts being
    claimed were not disputed and he simply adopted the costs of future care listed
    in the Vegotsky report without any analysis. That report, however, was entered
    into evidence subject to proof and no one ever testified as to the truth of the
    assumptions that underlay that report. The appellants maintain that they never
    accepted the figures and argue that the only evidence presented at trial as to
    the need for these expenditures was the evidence of Mr. and Ms. Degennaro. That
    evidence lacked detail and only spoke generally of Ms. Degennaros reduced
    abilities and Mr. Degennaros increased responsibility for carrying out
    household duties.

[29]

Evidence
    specifically addressing Ms. Degennaros pre-accident responsibilities and Ms.
    Degennaros present abilities was, in the appellants view, necessary because
    the record indicated that she and Mr. Degennaro were able to cope quite well
    when she was off work. Given that the trial judge had also awarded Ms.
    Degennaro a substantial sum for future loss of income, it was incumbent on him
    to consider whether all of the costs of future care being sought were in fact
    justified and required.

[30]

The
    appellants submit that the figures used in the Vegotsky report were drawn
    almost exclusively from the Wiega reports, which were also filed subject to
    proof. The Wiega reports, in turn, relied on various notes, records and other
    information. Some of these, such as clinical notes and records of various
    physicians and experts, were filed at trial. Other material relied on, however,
    was not filed. For example, the second Wiega report, which is dated October 28,
    2008, refers to a future care needs and costs analysis carried out by Barbara
    Nagy, a physiotherapist. Ms. Nagys report was not filed. The second Wiega
    report also relies, in part, on various discussions the author and Ms. Nagy had
    with Ms. Degennaro. The appellants argue that the Vegotsky report could not be
    relied on because the two Wiega reports were not put to Ms. Degennaro and there
    was no testimony directly addressing the need for many of the cost items listed
    in the Vegotsky report.

[31]

The
    respondents submit that the appellants did not argue at trial that the reports
    had not been proven and could not be relied on. In the respondents view, the
    appellants only argued that the report should be ignored because the Degennaros
    had been living for years without access to the care costs set out in the
    reports. The trial judge properly rejected that submission because the
    appellants had led no evidence that the Degennaros did not need the care
    provided for in the reports. The respondents argue that it is disingenuous for
    the appellants to now question the figures set out in the report.

[32]

There
    is merit to the appellants submission. It is not unusual for counsel, at the
    outset of a civil trial, to mark one or more volumes of bound documents as
    exhibits. These are normally marked as exhibits subject to proof. This will
    often allow for a better and more orderly management of the exhibits filed at
    trial. This case highlights the importance of ensuring that, at the conclusion
    of the trial, the status of the many documents contained in those volumes is
    clear (i.e. whether they have been proven and can be relied on by the trial
    judge in reaching a decision). This is particularly so where, as in this case,
    they are referred to and relied on in final submissions and they are critical
    to the quantification of the claim for costs of future care. It is the failure
    to clearly agree on the status of the Wiega and Vegotsky reports that has, in
    the present case, given rise to confusion as to their evidentiary value and the
    use to which they could be put in assessing damages.

[33]

In
    my view, the trial judge erred in the use he made of the Wiega and Vegotsky
    reports to determine the damages for costs of future care. At para. 165 of his
    reasons the trial judge stated that the amount of $1,767,800 being sought for costs
    of future care was not in dispute and that the only issue was whether there
    should be a reduction for contingencies. Although the appellants submissions
    at trial on the issue of costs of future care were, to say the least, minimal,
    the exchange I have reproduced earlier in these reasons shows that the
    appellants did in fact dispute the amount being claimed. The appellants
    position was that the items included in the costs of future care calculation in
    the Vegotsky report were not supported by the evidence at trial and were not reasonable.
    As put by their trial counsel, the appellants position was that the amount of
    future cost of care is really minimal rather than that which is reflected in
    the reports. In the exchange that followed, the court expressed the view that
    there was evidence of a need and commented on certain items listed in the Wiega
    reports such as the need for a wheelchair, the need for various drugs and the
    need for a personal support worker when Ms. Degennaro reached the age of 65. At
    the end of that exchange, the appellants counsel did not resile from the
    stated position; he simply responded, You have my submission.

[34]

In
    my view, therefore, the trial judges premise for the assessment of the costs
    of future care was in error. The need for the various items listed in the
    Vegotsky and Wiega reports was in dispute and the appellants position was that
    the amount for costs of future care was not made out on the record.

[35]

In
    submissions before us, the appellants conceded that there was some evidence in
    support of many aspects of the costs of future care being claimed. By way of
    example, the claim for the drugs listed in the costs of future care report was
    largely based on medical records and evidence led at trial. Similarly, the need
    and benefit of different types of therapy such as
pilates
and yoga were addressed in the evidence of Ms. Degennaro and others. In
    addition, it is apparent from the trial judges comments in his exchange with
    the appellants trial counsel concerning the costs of future care that he was
    prepared to make a number of assumptions based on Ms. Degennaros testimony and
    appearance at trial. Specifically, he saw the need for her to have a manual
    wheelchair and believed that she would likely need the assistance of a personal
    support worker when she attained the age of 65.

[36]

There
    was, therefore, a basis for awarding damages for the costs of future care. The
    issue, however, is whether the need for all of the amounts sought by the
    respondents was made out. In my view, they were not. In several instances there
    was simply no evidence to support the claim set out. For example, the second Wiega
    report claims the need to recover an annual cost of $255.00 until age 75 for
    house painting. The assumption here is that, but for the injury, Ms. Degennaro
    would have painted 1000 square feet of the house every five years until she
    reached the age of 75. There was no evidence by Ms. Degennaro that she had
    painted the house in the past or that there was a need for her to carry out this
    type of regular house painting until age 75. The second Wiega report states
    that the amount claimed is [s]upported by Ms. Barbara Nagy, physiotherapist in
    her report dated August 15, 2007. That report was not entered into evidence
    and Ms. Nagy did not testify. There are several other unsubstantiated claims
    listed in the Wiega reports and these are all included in the amount claimed in
    the Vegotsky report and awarded by the trial judge.

[37]

Had
    the trial judge not erred in finding that the amounts set out in the report
    were undisputed, he would have subjected each of the items claimed in the Wiega
    reports to a critical analysis to determine whether the claim had been
    established on the record and whether the assumptions made were reasonable.

[38]

Given
    the trial judges error in assessing damages, this court must decide whether to
    send the matter back to trial. Pursuant to s. 119 of the
Courts of Justice Act
, this court has the power to substitute its
    own assessment of damages if it considers it just. In my view, ordering a new
    trial on one aspect of damages is neither desirable nor warranted. I say so for
    several reasons.

[39]

This
    case involves a fall that occurred almost 12 years ago. It was a 10-day trial
    and involved the testimony of several expert witnesses. There were no real
    credibility issues and the fairness of the trial has not been put into
    question. The trial judges error does not affect liability and goes only to
    the quantification of one aspect of damages, albeit an important one, the costs
    of future care.

[40]

In
    the circumstances of this case, I consider it to be in the interest of justice
    that a new trial, even one limited to damages, be avoided. The more appropriate
    remedy is for this court to review the record and substitute its own view of
    the proper amount for costs of future care.

4. The appropriate amount of costs of future
    care

[41]

The
    appellants submit that although the Vegotsky and Wiega reports were marked as
    exhibits, the court could make no use of them because no one testified to their
    accuracy, and the factual underpinnings for the reports were not proven at
    trial. The appellants rely on this courts decision in
Wunsche v. Wunsche

(1994), 18 O.R. (3d) 161 (C.A.), for
    this submission.

[42]

I disagree. The situation in
Wunsche
was quite different.
Wunsche
was a family law case where the
    central issue was the determination of the value of the husbands corporate
    shareholdings for the purpose of the net family property calculation. The wife had
    obtained a valuation report that expressed an opinion about the value of the
    corporate shareholdings. It was listed in a request to admit that was served on
    the husband. As the husband failed to respond to the request to admit, the
    trial judge allowed the report to be marked as an exhibit at trial. The
    husband, who was self-represented, argued that the valuation was wrong, as were
    many of the assumptions underlying the report. He asked to have the evaluator
    testify and be cross-examined. This did not occur, and the trial judge simply
    accepted the valuation contained in the report as being proven. On appeal, this
    court held that, in the circumstances, the request to admit only established
    the authenticity of the document, not the truth of the contents of the
    valuation report or the correctness of the underlying assumptions. The
    valuation could not, therefore, be used by the trial judge as proof of the
    value of the shareholdings. This was particularly so because the husband had
    been given no real opportunity to object to the admissibility of the report, nor
    to cross-examine on the accuracy and reliability of the report and its underlying
    assumptions. Since the entire action concerned the equalization of property
    between the parties and there was no other admissible evidence upon which the
    court could determine the value of the husbands shareholdings, the court sent
    the matter back for a new trial.

[43]

In
    the present case, the situation is quite different. In closing submissions, the
    appellants trial counsel only challenged the
need
for the items listed in the Vegotsky and Wiega reports. For
    example, the appellants counsel questioned several items listed under the
    rubric of home maintenance and argued that the need for these items had not
    been made out on the evidence at trial. The appellants were silent as to the
    accuracy of the calculation of the cost of these items should the need be
    proven.
Indeed, although
the
    respondents explicitly stated in their submissions that they were relying on
    the reports, the appellants
never disputed the calculation in the
    reports nor did they seek to cross-examine Ms. Wiega or Ms. Vegotsky. The
    transcript suggests that the parties had discussed between themselves whether
    to call the authors of these reports, and ultimately concluded that it was not
    necessary.

[44]

It was apparent, therefore, that the parties
    accepted the accuracy of the costing of the goods and services listed in the
    reports. The only issue was whether the respondents had proven that the various
    goods and services listed therein were needed. As a result, I see no basis to
    reject the reports in their entirety. The accuracy of the costing was not an
    issue at trial and there is no reason why this court cannot rely on those costs
    in reassessing the appropriate amount of damages for the costs of future care.

[45]

The
    Vegotsky report assessed the costs of future care from January 1, 2009, to
    September 9, 2051. The calculations were based on the revised table of costs in
    the second Wiega report dated October 28, 2008. The Vegotsky report lists items
    of need related to the treatment of fibromyalgia as well as items related to assisting
    Ms. Degennaro with her day-to-day living.

[46]

Turning
    first to the treatment-related items, the Vegotsky report provides that the total
    present value of Ms. Degennaros medical needs, which includes medicines and
    botox therapy, is $576,787. The total present value of non-medical therapeutic costs,
    such as
pilates
and yoga classes as well as various
    therapeutic aids and devices, is $90,544. Professional services related to
    treatment, such as physiotherapy, massage therapy and travel to medical
    appointments, amount to $180,638.

[47]

The trial record contained substantial evidentiary
    support for Ms. Degennaros need for these present and future medical and
    therapeutic items. Ms. Degennaro testified, for example, that while her chronic
    pain had not gone away, she was taking several prescribed drugs to manage her
fibromyalgia symptoms
, the massage
    therapy was helping her with her sleep, and the
pilates
sessions were helping her regain lost muscle strength in her legs. Dr.
Ko
 whom the trial judge found to be 
extraordinarily
    well qualified in the field of chronic pain
 and whose evidence the
    trial judge preferred  testified that anybody in a chronic pain state needs
    every strategy to help reduce the pain. From my review of the trial record, I
    am satisfied that the above costs for medical needs, non-medical therapeutic
    costs, and treatment-related services are reasonably required.
Indeed,
the
    appellants conceded the costs pertaining to medical needs in the course of
    their oral submissions on appeal.
The present value of these items as
listed and valuated in the Vegotsky
    report
totals $847,969 of the
    total $1,542,720 in costs of future care (before application of the 15% gross
    and 5% reduction for contingencies for taxes).
[2]

[48]

The
    costs of future care related to Ms. Degennaros day-to-day living require
    further discussion. The Vegotsky report lists the following items:

Future care

Present value

Mobility

Manual wheelchair                                                           $
    15,471

Annual maintenance (50%)                                       1,320

Personal Care

Toenail care                                                                          15,191

Personal support worker (from age
    65)                            88,013

Home Maintenance (until age 75)

Housekeeping services                                                       97,558

Home support worker                                                       352,583

Heavy house cleaning                                                           9,099

House painting                                                                        7,101

Window cleaning                                                                   7,804

Snow removal                                                                       10,442

Handyperson services                                                         61,887

Lawn care                                                                              28,281

[49]

From
    my review of the trial judges comments made in the course of the submissions
    from the appellants trial counsel on the issue of costs of future care, it is,
    as noted earlier, apparent that the trial judge was satisfied that in light of
    Ms. Degennaros condition she should be provided with a wheelchair and a
    personal support worker who will begin assisting her when she reaches the age
    of 65. As a result, I accept that both these costs of future care are appropriate
    and necessary.

[50]

However,
    the trial judge did not comment, either favourably or unfavourably, on the
    remaining items in the Vegotsky report. These items are the $15,191 in costs
    for toenail care and the costs for home maintenance (until age 75), the latter
    of which include a home support worker in the amount of $352,583 and various
    home maintenance services such as housekeeping, house painting, lawn care and
    the like totaling $222,172.

[51]

From
    my review of the transcripts, there was virtually no evidence about whether Ms.
    Degennaro had previously carried out home maintenance work such as house
    painting and snow removal. The parties never addressed whether, but for the
    accident, these would have continued to be carried out by her until age 75 and
    whether it was reasonable to assume that she would carry them out in the
    frequency and to the extent assumed in the report.

[52]

With
    respect to Ms. Degennaros need for assistance from a home support worker for
    homemaking and housekeeping tasks, Ms. and Mr. Degennaro testified as to Ms.
    Degennaros reduced abilities in this regard, and the various medical evidence
    provided support for such a need, at present and in the future. The trial
    judges reasons and comments suggest that he had accepted that a need in these
    areas had been established. There is, however, no analysis of the extent of the
    present need and the extent of her need in the future once Ms. Degennaro has
    the benefit of the additional medication and therapies provided for in the
    judgment and once the children leave the home. In my view, the extent of the
    need for home support will likely decline significantly as time advances and,
    therefore, the figures proposed in the Wiega and Vegotsky reports should be
    adjusted to reflect these changes.

[53]

I
    would therefore reduce the amount of $352,583 sought for a home support worker
    by 50% and reduce the amount sought with respect to the balance of the home
    maintenance items totaling $222,172 by 75%. The reduction, therefore, would
    total $342,921.50. Applying the 5% reduction for contingencies and the 15%
    gross up for taxes, the net adjustment to the trial judges damage award should
    be $374,640.65.

CONCLUSION

[54]

I
    would allow the appeal in part and reduce the damage award by $374,640.65. With
    respect to costs, the parties had agreed that costs of $35,000 inclusive of
    disbursements and applicable taxes should be awarded to the successful party.
    Given the disposition I propose, neither party has been totally successful. The
    respondents have been totally successful with respect to the liability issues
    and have been largely successful with respect to the damages issue. As a
    result, I would award the respondents costs fixed at $20,000 inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

I agree H.S. LaForme
    J.A.

I agree David Watt
    J.A.

RELEASED: April 26, 2011





[1]
The
    Vegotsky report actually gave a slightly larger figure of
$1,774,100 for the total costs of future care.
    This was based on the application of a 15% gross to the present value of future
    costs, calculated at $1,542,720. See footnote 2.



[2]
The
    $1,542,720 figure in the Vegotsky report is slightly larger than the $1,537,200
    figure used by the trial judge. The record does not disclose the reason for the
    discrepancy. For the purpose of determining the amount of the adjustment to be
    made, I have assumed that the figures used in the Vegotsky report totaling
    $1,542,720 are accurate.


