



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Bradley v. Bath,









2010 BCCA 10




Date: 20100113

Docket:
CA036393

Between:

David Ryan Bradley

Respondent

(
Plaintiff
)

And

Dilbahaar Bath and DaimlerChrysler
Services Canada Inc./
Services DaimlerChrysler Canada Inc.

Appellants

(
Defendants
)






Before:



The Honourable Mr. Justice Donald





The Honourable Madam Justice Newbury





The Honourable Mr. Justice Tysoe




On
appeal from: Supreme Court of British Columbia, August 5, 2008
(
Bradley v. Bath
, 2008 BCSC 1056, Docket M055109)




Counsel for the Appellants:



A.
  M. Gunn, Jr.





Counsel for the Respondent:



R.
  A. Holness and D. B. Hanna





Place and Date of Hearing:



Vancouver,
  British Columbia





November 27, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  13, 2010









Written Reasons by
:





The Honourable Mr. Justice Tysoe





Concurred in by:





The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury






Reasons for
Judgment of the Honourable Mr. Justice Tysoe:

[1]

The plaintiff was injured while riding his
bicycle on the sidewalk in front of a gas station.  He was struck by a vehicle,
driven by the individual defendant and owned by the corporate defendant, as it
was emerging from the gas station.

[2]

Following a seven-day trial, the trial judge
held that the defendants were wholly liable for the accident.  She made damage
awards for non-pecuniary damages, loss of past income, loss of future wages,
loss of future earning capacity, cost of future care and special damages, and
she made an in-trust award for the benefit of the plaintiffs girlfriend.

[3]

The defendants appeal from the judges order in
three respects.  They say the judge erred (i) in her approach to the issue of
contributory negligence on the part of the plaintiff, (ii) in her assessment of
past and future loss of earning capacity, and (iii) in making the in-trust
award.

Background


[4]

The accident took place between 10:30 and 11:00 a.m.
on December 3, 2003.  The gas station in question is located at the north-west
corner of S.W. Marine Drive and Cambie Street in Vancouver.  The plaintiffs
bicycle was on the north sidewalk travelling in an easterly direction towards
the gas station (S.W. Marine Drive also runs in a slightly southerly to
northerly direction at that location but, for the sake of simplicity, I will
refer only to the predominant directions).  The individual defendant (whom I
will call the defendant when I am referring to him alone) had been in the gas
station, and was intending to exit from the westerly driveway of the gas
station to turn onto S.W. Marine Drive in a westerly direction.

[5]

The front of the defendants vehicle struck the
plaintiffs left leg.  The plaintiff was thrown approximately 15 feet onto S.W.
Marine Drive.

[6]

The gas station was separated from the property
to its west (the direction from which the plaintiff was coming) by a 5.5 foot
high fence, which extended to a point 1.25 feet short of the sidewalk.  The
fence was approximately 5.5 feet from the western edge of the gas stations
driveway from which the plaintiffs vehicle emerged.

[7]

There were three witnesses to the accident  the
parties themselves and Ms. Point, who was stopped for the traffic light at
the intersection of S.W. Marine Drive and Cambie Street, facing in a westerly
direction.  They gave two versions of the events giving rise to the accident,
which the trial judge referred to as scenarios.

[8]

The plaintiff and Ms. Point testified that the
plaintiff was hit by the defendants vehicle in the middle of the driveway as
the plaintiff was slowly riding his bicycle across the driveway (the plaintiff
estimated his speed to be approximately 8 km/h).  The defendants vehicle
suddenly accelerated while it was within the gas station and did not stop until
after it collided with the plaintiff.

[9]

The plaintiff also testified that as he
travelled beyond the fence he observed the defendants vehicle heading towards
the exit driveway.  He said the defendants vehicle was moving at a moderately
slow speed approximately two and a half car lengths away from the front edge of
the driveway, and he felt it was safe to proceed.  The plaintiff conceded on
cross-examination that he did not make eye contact with the defendant prior to
the impact and did not know the direction the defendant was looking at the time
of the impact.

[10]

The second scenario was the version given by the
defendant.  He testified that he stopped his vehicle before crossing the
sidewalk, looked to his right and did not see anyone on the sidewalk and looked
to his left for at least five seconds until the traffic coming from the east
had cleared.  He then proceeded onto the sidewalk, at which time he testified
that the plaintiff collided with the front of his vehicle.

[11]

In her reasons for judgment, the trial judge
reviewed the medical evidence in considerable detail but did not make express
findings with respect to the plaintiffs injuries.  At para. 42 of her reasons,
the judge quoted a summary of his injuries from the medico-legal report of his
family doctor:

fracture of
the distal tibia, laceration of his scalp, laceration of his left shin,
post-traumatic periostitis of the left shin, a partial tear of his anterior
tibiofibular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa
in the ankle/heel area).

The plaintiff had continuing symptoms
at the time of the trial, and the injuries affected his ability to do physical
work and to enjoy recreational activities.

[12]

The trial judge also referred to medical
evidence detailing injuries or symptoms of mild traumatic brain injury, post
concussion syndrome, chronic anxiety and post-traumatic stress disorder
symptoms, sleep disorder, depression and personality change.  However, she
expressed concern about this evidence because the psychiatrist who gave the
opinion appeared to have relied on erroneous or unproven facts.

[13]

At the time of the accident, the plaintiff was
23 years of age and had a grade 12 education.  He grew up in Ontario and had
become skilled at woodworking by working in his fathers business.  He moved to
British Columbia in March 2003 and found work at a firm called West Isle
Design, an architectural millwork firm, at a wage of $16 an hour.

[14]

Shortly before the accident, the plaintiff
obtained a job with a new company called Skookum Space Rentals, which was owned
by the father of a friend.  He was to be paid $22 an hour.  The accident
occurred on the morning of the plaintiffs first day at his new job, and he
never worked at Skookum Space Rentals.

[15]

After the accident, the plaintiff was not able
to work full time in woodworking.  In the four and a half years between the
time of the accident and the date of the trial, he worked as a security guard,
a host for SnowBus, a part-time carpenter, a ski-lift painter, a window cleaner
and, together with his girlfriend, a manager/caretaker of a residential
building.

Decision of the Trial Judge


[16]

The trial judge noted that s. 183(2)(a) of the
Motor
Vehicle Act
, R.S.B.C. 1996, c. 318, prohibits a person operating a bicycle
from riding on a sidewalk (unless permitted by bylaw or signage) and that s.
176(1) of the
Act
requires a driver of a vehicle emerging from a
driveway to stop before driving onto the sidewalk and to yield the right of way
to a pedestrian on the sidewalk.  The judge did not make a specific finding as
to which of the two scenarios presented by the testimony of the witnesses was
the accurate version of the events leading to the accident because she
concluded that either scenario led to the result that the defendant bore full
liability for the accident.  However, it is apparent from the reasons for
judgment that the judge had difficulties with the defendants version, and she
appeared to prefer the version given by the plaintiff and Ms. Point.

[17]

The judge held that, under the scenario
described by the plaintiff and Ms. Point, the defendant was in breach of
s. 176(1) by failing to stop his vehicle before crossing the sidewalk, and his
actions fell below the standard of an ordinarily prudent person.  While the
plaintiff was in breach of s. 183(2)(a), the judge held there was no causal
link between the breach and the accident because he could just as easily have
been a jogger, a rollerblader or a regular pedestrian.

[18]

The judge held that, in the five-second period
described by the defendant in the second scenario between the time he looked to
the right and the time he proceeded across the sidewalk, a pedestrian, jogger
or rollerblader could have travelled the distance from a point outside of the
defendants line of sight to the point in front of the defendants vehicle. 
The judge concluded that, under this scenario, the accident would not have been
caused by the plaintiff riding his bicycle on the sidewalk but, rather, it
would have been caused by the failure of the defendant to look to his right
before moving his vehicle forward after looking away for a period of time
during which a person could have appeared to the right of his vehicle.

[19]

The judge made an award for past income loss in
the amount of $79,297.25 representing the difference between the amount the
plaintiff would have earned on a full-time basis from the date of the accident
to the date of the trial at $22 an hour  plus 10% for bonuses and overtime
($185,684.40) and the amount that counsel agreed he had actually earned during
this period ($106,387.15).

[20]

The judge made an award for loss of future wages
in the amount of $72,526.40 representing the wages the plaintiff would have
lost while retraining for two years for a new career, calculated by determining
his wages at $22 an hour plus 10% for bonuses and overtime ($82,526.40), less a
deduction for contingencies such as the shutdown of a business, layoffs and a
decision to move back to Ontario ($10,000).

[21]

The judge made an award for loss of future
earning capacity in the amount of $80,000.  She noted that even if the
plaintiff succeeded in completing his diploma in building inspection, he may
suffer some income limitation from not being able to work long hours and he may
find it problematic to climb ladders to perform inspections.  She also noted
that the plaintiff may be viewed as a less attractive employee than one who is
fully able to perform without difficulty all the physical tasks of an
occupation such as a building inspector.

[22]

The judge made an in-trust award in the amount
of $14,040 for household work done by the plaintiffs girlfriend.  The amount
was based on two hours a week at $30 an hour from the date of the accident to
the date of the trial.

[23]

The judge also made awards for non-pecuniary
damages ($75,000), cost of future care ($73,078) and special damages
($2,811.45).  None of these awards are contested on appeal except to the extent
that the defendants say they should be reduced as a result of the plaintiffs
contributory negligence.

Discussion


(a)
Contributory
Negligence


[24]

At common law, contributory negligence on the
part of a plaintiff was a complete defence to his or her claim.  This was
considered to be unjust, and legislatures in many common law jurisdictions
passed contributory negligence statutes (also referred to as apportionment
legislation).  The statute in this province is currently called the
Negligence
Act
, R.S.B.C. 1996, c. 333, s. 1(1) of which reads as follows:

If by the fault
of 2 or more persons damage or loss is caused to one or more of them, the
liability to make good the damage or loss is in proportion to the degree to
which each person was at fault.

If damage or loss has been caused by
the fault of two or more persons, s. 4 of the
Act
requires the
court to determine the degree to which each person was at fault.  While the
prerequisite to apportionment is that the damage or loss has been caused by the
fault of two or more persons, the apportionment must be done on the basis of
the degree to which each person was at fault, not on the basis to which each
persons fault caused the damage:
Cempel v. Harrison Hot Springs Hotel Ltd.
,
[1998] 6 W.W.R. 233, 43 B.C.L.R. (3d) 219 (C.A.).

[25]

The concept of contributory negligence was
described in John G. Fleming,
The Law of Torts
, 9th ed. (Sydney: LBC
Information Services, 1998) at 302, as follows:

Contributory negligence is a
plaintiffs failure to meet the standard of care to which he is required to
conform for his own protection and which is a legally contributing cause,
together with the defendants default, in bringing about his injury.  The term
contributory negligence is unfortunately not altogether free from ambiguity. 
In the first place, negligence is here used in a sense different from that
which it bears in relation to a defendants conduct.  It does not necessarily
connote conduct fraught with undue risk to
others
, but rather failure on
the part of the person injured to take reasonable care of himself in his
own
interest. ... Secondly, the term contributory might misleadingly suggest that
the plaintiffs negligence, concurring with the defendants, must have
contributed to the
accident
in the sense of being instrumental in
bringing it about.  Actually, it means nothing more than his failure to avoid
getting hurt ...

[Emphasis in
original; footnotes omitted.]

[26]

In the present case, the trial judge held that
the plaintiff was not contributorily negligent because the plaintiff could have
been struck by the defendants vehicle if he had been a jogger, rollerblader or
regular pedestrian rather than riding his bicycle.  Thus, she concluded that
the plaintiffs breach of the
Motor Vehicle Act
was not causally
connected to the accident.

[27]

In my respectful view, the trial judge did not
ask the correct question.  The proper question was not whether a jogger,
rollerblader or pedestrian could have been hit by the defendants vehicle.  The
correct inquiry was to determine whether the plaintiff failed to take
reasonable care for his own safety and whether his failure to do so was one of
the causes of the accident.  While the judge acknowledged that the plaintiff
was under a heightened duty of care because he was in breach of the law by
riding his bicycle on the sidewalk, she failed to give effect to the heightened
duty because she did not consider what care had been taken by the plaintiff
when he saw the defendants vehicle moving towards the exit from the gas
station.

[28]

In my opinion, the plaintiff was at fault, and
his fault was one of the causes of the accident.  Contrary to law, he was
riding his bicycle on the sidewalk against the flow of traffic.  He saw the
defendants vehicle moving towards the exit he was approaching.  Rather than
making eye contact with the defendant or stopping his bicycle and letting the
defendants vehicle exit the gas station, the plaintiff assumed the defendant
saw him and would not accelerate his vehicle.  In these circumstances, he was
at fault for continuing to ride his bicycle across the path to be taken by the
defendants vehicle in exiting the gas station.

[29]

The defendants submit that the apportionment of
fault under s. 4 of the
Negligence Act
should be 70% to the plaintiff
and 30% to themselves.  In that regard, they cite the following cases involving
an accident involving a bicycle and a motor vehicle:
Gill v. Francis
, [1997]
B.C.J. No. 2491 (S.C.) (75% to cyclist);
Capostinsky (Guardian ad litem of)
v. Aurora Cycle Supply Ltd.
(1993), 39 B.C.A.C. 236 (60% to the cyclist);
Bergvinson
v. Rapanos
, [1991] B.C.J. No. 4009 (S.C.) (two‑thirds to the
cyclist); and
Tompkins v. Barden
, 2000 BCCA 325, 76 B.C.L.R. (3d) 260
(50% to the cyclist).

[30]

I am of the view that the fault of the parties
in this case is equal.  The plaintiffs fault was riding his bicycle on a
sidewalk against the flow of traffic and continuing to ride across the path of
the exiting vehicle without ensuring his way was clear.  The defendants fault
was his failure to keep a proper lookout when exiting the gas station.  I do
not believe that one party is more culpable than the other.

(b)
Loss of
Past Earning Capacity


[31]

Under the heading past income loss, the trial
judge awarded the plaintiff the sum of $79,297.25.  Lawyers and judges often
refer to this head of damages as past income loss or past wage loss because, in
the usual type of personal injury cases, the plaintiff will have been working
at a job at the time of the injury and will return to the same job when
sufficiently recovered from the injury.  The amount of damages suffered by the
plaintiff is routinely calculated by determining the amount of salary or wages
the plaintiff would have earned at the job if he or she had not been injured. 
It is because of the method of calculating the damages that they are commonly
referred to as past wage loss or past income loss.

[32]

However, this head of damages, both pre-trial
and post-trial, is properly characterized as a loss of earning capacity.  This
was explained in
The Queen v. Jennings
, [1966] S.C.R. 532 at 545, 57
D.L.R. (2d) 644, referring to the 7th Report of the Law Reform Committee
(August 1958):

Damages should,
so far as any monetary award can do so, restore the plaintiff to the position
in which he would have stood but for the defendants wrongdoing. On this basis
they should represent compensation for loss of earning capacity and not for
loss of earnings.  In a case of personal injuries, what the plaintiff has lost
is the whole or part, as the case may be, of his natural capital equipment ...

For a more recent discussion of the
proper characterization of loss of past earning capacity, see
Rowe v. Bobell
Express Ltd
, 2005 BCCA 141, 39 B.C.L.R. (4th) 185.

[33]

In the usual type of case, as I have described
it above, the assessment of the loss of past earning capacity is
straightforward.  There is no suggestion that the plaintiff would have worked
at a job other than the one he or she had at the time of the accident and the
one to which he or she has returned.  The loss of the past earning capacity is
quantified by the amount of the wages or salary the plaintiff would have earned
at the job if his or her capacity had not been impaired by the injuries
sustained in the accident.  The assessment is not so straightforward, however,
in other cases; for example, where the plaintiff was not employed at the time
of the accident or where, as here, the plaintiff does not return to the job at
which he or she was employed at the time of the accident.

[34]

In this case, the defendants criticize the trial
judges award for past income loss in two respects.  First, it is said the
judge made a mathematical calculation to the penny of the wages the plaintiff
would have earned at his new job without addressing the pecuniary value of the
impairment of the plaintiffs capacity.  Secondly, it is said the plaintiff did
not introduce any evidence that Skookum Space Rentals continued in operation
through the period from the date of the accident to the date of the trial.

[35]

It is clear the trial judge considered the
plaintiff to be a skilled and industrious worker.  Whether the plaintiff worked
at Skookum Space Rentals or elsewhere, it is apparent that the judge believed
the plaintiff had the capacity, if he had not been injured in the accident, to
have been employed continuously to the date of the trial at a wage of $22 an
hour, plus overtime and bonuses.  It is also apparent that the judge was
satisfied that the plaintiff worked to the maximum of his impaired capacity
between the date of the accident and the date of the trial.

[36]

While it would have been preferable for the
judge to have expressly made the award in terms of a loss of capacity, I am
satisfied that the award does represent the monetary value of the impairment to
the plaintiffs past earning capacity occasioned by injuries suffered by him in
the accident.  It was not necessary for the plaintiff to prove that Skookum
Space Rentals continued to be in business because the judge implicitly found
that he had the capacity to find equivalent employment.  I am not persuaded
that the judge erred by failing to make a deduction to take into account the
contingency that the plaintiff may not have been able to find equivalent employment. 
I would not accede to this ground of appeal.

(c)
Loss of
Future Earning Capacity


[37]

The trial judge made two awards in respect of
the plaintiffs ability to work in the future: the first was an award for loss
of future wages during a period of retraining; the second was an award for loss
of future earning capacity.

[38]

The defendants have three criticisms of these
awards.  The first two criticisms, which relate to the award for loss of future
wages, are the same as their criticisms made in connection with the award for
loss of past earning capacity (namely, the judge made mathematical calculations
of lost wages without assessing the loss of capacity and she assumed during the
retraining period that he was foregoing employment at the $22 an hour wage rate
that Skookum Space Rentals was to have paid him).  The third criticism is that
the judge improperly split the post-accident inquiry into separate components
for loss of future wages and loss of future earning capacity.

[39]

The first and third criticisms are based on the
principle that the proper approach in determining damages under this head is to
assess the impairment of the plaintiffs capital asset caused by the injuries
in question.  In
Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at 356
(S.C.), after quoting a case referring to this principle, as articulated in
The
Queen v. Jennings
, Mr. Justice Finch (as he then was) said the following
about considerations to be taken into account when assessing loss of future
earning capacity:

[8]        The means by which the value of
the lost, or impaired, asset is to be assessed varies of course from case to
case.  Some of the considerations to take into account in making that
assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff
is less valuable to himself as a person capable of earning income in a
competitive labour market.

To this list of considerations can be
added the consideration that, in order to mitigate the loss resulting from the
impairment, a plaintiff may retrain for another career and forgo earning an
income during the period of retraining.

[40]

While I agree with the defendants that the trial
judge should not have made a separate award for loss of future wages, it would
not have been improper for her to have taken the possibility of retraining into
account when assessing loss of future earning capacity.  As noted by Mr.
Justice Hall in the following passage in
Pett v. Pett
, 2009 BCCA 232, 93
B.C.L.R. (4th) 300, the ultimate task is to quantify the financial harm to be
sustained by the plaintiff:

[19]      ...
Some cases speak of the
loss of a capital asset and some of the loss of future earnings, but the
essential matter that engages the attention of a court making an assessment in
this area is to endeavour to quantify the financial harm accruing to the
plaintiff over the course of his or her working career.

[41]

In the present case, the plaintiff submitted to
the trial judge that an appropriate award for loss of future earning capacity
was the sum of $400,000.  The aggregate of the awards made by the trial judge
for loss of future wages ($72,526.40) and loss of future earning capacity
($80,000) is approximately $152,500.  When the judge made the $80,000 award for
loss of future earning capacity, she made the assessment on the basis that the
plaintiff would retrain for another career.

[42]

On the evidence before the trial judge, I would
not regard an award of $152,500 for loss of future earning capacity to be
unreasonable.  While the judge theoretically erred in making a separate award
for loss of future wages, I am satisfied that the financial harm to the
plaintiff over the balance of his working life was reasonably quantified, and I
would not accede to this ground of appeal.

(d)
In-Trust
Award


[43]

An in-trust award is one made to a plaintiff in
trust for one or more of his or her family members, who are not named as
parties to the action, as compensation to the family members for additional
work done by them as a result of the impaired capacity of the plaintiff to
perform housekeeping chores or to care for themselves.  It was affirmed as a
recoverable award by this Court in
Kroeker v. Jansen
(1995), 123 D.L.R.
(4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).

[44]

The entire reasoning of the trial judge in
making the $14,040.00 in-trust award was as follows:

[157]  Mr.
Bradley submits that an in-trust award for the work done by his girlfriend is
appropriate.  He calculates it at two hours per week at $30 per hour, for a
total of $14,040.00 to the date of trial.  I find that amount reasonable on the
evidence.  The defendant did not attempt to rebut this evidence.

The $30 per hour figure came from the
report of an occupational therapist in connection with the plaintiffs claim
for future care costs in relation to janitorial assistance and home
maintenance.

[45]

The defendants say the in-trust award was not
properly pleaded

and, in any event, the evidence did not support such an
award.  In my opinion, both points have merit.

[46]

Although the statement of claim requested
special damages, they are not particularized, and there was no reference to an
in-trust claim.  Such a claim was first raised in the plaintiffs closing
submissions at trial.  It is not surprising in these circumstances that the
defendant did not attempt to rebut the evidence relied upon by the trial judge
in making the in-trust award.

[47]

Mr. Justice Mackenzie said the following about
pleading in-trust claims in
Star v. Ellis
, 2008 BCCA 164, 80 B.C.L.R.
(4th) 57 at para. 21:

[21]  One aspect
of this claim that is not directly in issue on this appeal, but is of some
significance, is the question of the extent to which a claim for past in-trust
services ought to be pleaded.  The claim is addressed under the heading of
special damages which normally requires that the claim be specifically pleaded
as is the case with out-of-pocket expenses.  The trial judge relied on
Frers
v. De Moulin
[2002 BCSC 408] for the proposition that an in-trust claim
does not have to be specifically pleaded and
Frers
was not challenged by
the appellant in this case.  Nonetheless, it appears to me that a claim of this
nature ought to be pleaded to provide a degree of specificity to the claim.  As
I have indicated, the pleading point is not specifically put in issue on this
appeal, but in my view, good practice suggests that in future cases it ought
properly to be pleaded.

The plaintiff responds by pointing out
that
Star v. Ellis
was decided after his statement of claim was filed
and by asking this Court to grant him leave to amend the statement of claim.

[48]

Unlike the situation in
Star v. Ellis
,
the lack of a proper pleading was made an issue on this appeal.  I would have
reservations about granting an amendment at this stage of the proceeding in
view of the trial judges reliance on the failure of the defendants to rebut
the evidence that she regarded as supporting the in-trust claim.  However, it
is not necessary to decide this aspect of the appeal on a pleadings point
because it is my view in any event that the evidence did not support the making
of an in-trust award.

[49]

The principle recognized in
Kroeker v. Jansen
is that an in-trust award is to compensate for a diminution in the ability to
carry out household tasks (even if those tasks are performed gratuitously by a
family member).  As illustrated in
Cummings v. Olson
(1996), 82 B.C.A.C.
241, this Court will set aside an in-trust award if there is no foundation in
the evidence for such an award.

[50]

In the present case, there was no evidence that
the plaintiffs girlfriend did any household chores that the plaintiff was
incapable of performing.  In her testimony, she said that they split the chores
before the accident and that since the accident she has done the household
cleaning, he has done the cooking and she has been the one who jumps up and
takes the dog out.  The plaintiff was asked during cross-examination about
household chores:

Q         Okay. Youve been able to do all of your normal household
chores since a year or so following this accident?

A          Well,
Ill be honest.  Leah is a cleaner by trade, and before I even have the chance
to do anything, she really does have it wrapped up.  You know, it sounds kind
of bad, but no, its an agreement between her and I.

In my opinion, this evidence does not
provide a foundation for a conclusion that there was a diminution in the
plaintiffs ability to perform household tasks.

[51]

In making closing submissions, counsel for the
plaintiff did not refer the judge to any case authorities dealing with
requirements for an in-trust claim.  On the basis of the pleadings, counsel for
the defendants was presumably not anticipating that an in-trust claim would be
made, and he did not cite any authorities in his brief submission that such a
claim was not supported by the evidence.  The lack of proper pleadings
presented the judge with a situation in which she did not believe that the
claim was being seriously contested, and she made the in-trust award without
the benefit of the applicable jurisprudence.

[52]

My conclusion that the evidence did not provide
a foundation for an in-trust award is reinforced by the trial judges rejection
of the plaintiffs claim that he should receive an award for future care costs
in respect of janitorial assistance and home maintenance service.  Her reason
for rejecting this claim was that I see no need for janitorial or home
maintenance assistance for Mr. Bradley (para. 138).  Other than a short period
following the accident, there was no differentiation in the evidence between
the pre-trial and post-trial capacity of the plaintiff to perform household
tasks.  Just as the evidence did not support a finding of diminished capacity
at the time of the trial, it did not support such a finding in the period
preceding the trial.

Conclusion


[53]

I would allow the appeal by eliminating the
in-trust award and by reducing the other heads of damage by one-half to take
the plaintiffs contributory negligence into account.  The result would be that
the judgment in favour of the plaintiff, apart from pre-judgment interest,
costs and deduction of Part 7 benefits, is reduced from $396,753.10 to
$191,356.55.

The Honourable Mr.
Justice Tysoe

I agree:

The Honourable Mr. Justice Donald

I agree:

The
Honourable Madam Justice Newbury


