Tag: Milliken v. Rowe

Court Holds Diminished Capacity To Care For Loved Ones Not Forseeable Unless Care "taking place or contemplated" at the time of the tort

It is a well recognized principle that if a spouse needs to provide extraordinary services in caring for an injured loved one harmed by the negligence of others that this time can be compensated as an ‘in trust claim’ in the Plaintiff’s personal injury action.
What if the tables are turned, however, and the Plaintiff cares for a loved one but due to injuries to the Plaintiff he/she becomes unable to provide the care they otherwise would for their spouse?  The BC Court of Appeal released reasons for judgement, in a two one split, finding that such damages for such a loss are not ‘foreseeable’ unless they are taking place or contemplated at the time of the tort.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.   These had long term limiting consequences.  Subsequent to the collision the Plaintiff’s husband became ill.  The evidence proved that but for the injuries the Plaintiff would have cared for her husband.  The Court compensated the Plaintiff $30,000 for this loss.  In overturning this award, the BC Court of Appeal held it was not a foreseeable loss as this care was not “taking place or contemplated” at the time of the crash.  The majority provided the following reasons:
[31]         With respect, I disagree that the loss in this case reasonably could be foreseeable even under that standard. At its core, the award here is based merely on the fact that, at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind. This did not make such care reasonably foreseeable at law. It might never occur: the respondent could die before care was required; the need for care might never arise; her surgery could eliminate the problem or diminish it significantly; or, her full-time employment may have eliminated or diminished her ability to provide care regardless of the accident. While plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a “real risk” in “the mind of a reasonable man in the position of the defendan[t]”.
[32]         In my view, the costs associated with caring for the respondent’s husband are too remote to be recoverable. As aptly stated by the Chief Justice in Mustapha, recoverability is based on reasonable foresight, not insurance.
[33]         The appellant also argued that even if damages were recoverable for the respondent’s diminished ability to care for her husband, as not too remote, as they were in Lynn, they would be recoverable under the heading of non-pecuniary damages and not as damages for loss of future care. I need not address this issue and leave it for a case in which it is engaged.
[34]         In my view, costs arising from the diminished ability to care for a disabled spouse of a plaintiff where no such care is required or contemplated at the time of the tort are not foreseeable at law; they are too remote.
[35]         I would allow this appeal and reduce the award of damages for the costs of future care by $30,000.
The decision also includes a well reasoned dissenting decision by Mr. Justice Donald which can be found starting at paragraph 36.
 

Treating Surgeon Allowed to Give Expert Evidence Despite Non-Compliance With Rules of Court


Although the BC Supreme Court Rules have strict requirements with respect to the admission of expert opinion evidence Rule 11-7(6) gives the Court a wide discretion to dispense with these if “the interests of justice require it“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this discretion.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.  At trial the Plaintiff presented expert opinion evidence from a privately retained physiatrist.  The Plaintiff’s treating orthopaedic surgeon was also called to the stand, however, he was not called as an expert witness but rather as a witness of fact.  Despite this limitation the Court exercised its discretion under Rule 11-7(6) and permitted the treating surgeon to give opinion evidence addressing diagnosis and prognosis.  In doing so Mr. Justice Davies provided the following reasons:

[55] Dr. Zarkadas was not called as an expert witness at trial but he is obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating physician concerning her right shoulder difficulties.

[56] As such he was able to assist me in assessing Ms. Milliken’s future prospects if the surgery is undertaken or if it is not. To that extent, his more immediate involvement with and treatment of Ms. Milliken allows insight that was not previously available to Dr. Andrew Travlos (adduced as opinion evidence by the plaintiff) arising from his examinations and enquiries six months earlier.

[57] In those circumstances, notwithstanding the failure of the plaintiff to seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined to receive his evidence concerning his diagnosis and prognosis related to Ms. Milliken’s right shoulder injuries.

[58] I did so over the objection of the defendant because of my belief that the determination of damages in this case should be based upon the best evidence available.

[59] In my opinion, the ability to achieve a just result should be served, rather than thwarted, by the application of procedural rules.

[60] The Court’s power to exercise discretion to allow relief from the harsh consequences of non-compliance with procedural rules recognizes that principle.

[61] I also, however, recognized that the defendant could be prejudiced by the admission and consideration of Dr. Zarkadas’ prognostic evidence if not given an opportunity to answer it.

[62] I accordingly provided the defendant an opportunity to consider whether to call rebuttal evidence before rendering judgment.

[63] I was subsequently informed that the defendant did not intend to do so.

$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury.
In this week’s case (Milliken v. Rowe) the 37 year old plaintiff suffered a variety of injuries in a 2007 collision.  The Defendant motorist admitted fault.  The Plaintiff’s most serious injury resulted in chronic shoulder pain the cause of which was described as “one of two things or both in combination which include biceps tendonitis and AC joint antropathy“.
The Plaintiff endured a variety of medical interventions none of which meaningfully resolved her injury.  Surgery was expected to have no better than a 50/50 chance of improving her injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Davies made the following findings:
[65] I find that the totality of the evidence establishes that the neck and shoulder pain as well as the headaches, back pain and right leg pain which Ms. Milliken has suffered since August 2007 were caused by the defendant’s negligence…

[83] Ms. Milliken was 37 when she was injured. She suffered from injuries to her right hip and back that caused significant discomfort (primarily at work). The effects of those injuries were largely resolved within about two years.

[84] Ms. Milliken also, however, suffered from right shoulder pain that did not resolve and has now been ongoing for four years. The only potential end in sight for the amelioration of the pain and suffering concerning her right shoulder is invasive surgery with about an even chance of success. Whether successful or not, the proposed complex surgery will require an extensive period of recuperation of from 3 to 6 months.

[85] I find that the pain Ms. Milliken has endured has been debilitating.

[86] While she has worked through much of it of necessity, the cost to her of doing so has been great.

[87] Her life has become a one-dimensional one in which activities unrelated to work have largely had to be put aside. She no longer has the stamina or physical ability to care for her home as she previously did and has become socially reclusive because of that and her constant tiredness.

[88] Ms. Milliken is no longer able to play with her grandchildren as she once did due to pain and discomfort in her shoulder. She no longer participates in making crafts or enjoying recreational pursuits with her family.

[89] Her injuries have also exacerbated the physical challenges which she now faces in caring for her husband and that prevented her from taking on some of the work around the home and yard for which he was previously responsible…

[91] Ms. Milliken’s suffering will also not end with this litigation.

[92] At minimum she must endure complex shoulder surgery and a lengthy period of rehabilitation in which she will continue to be unable to enjoy life as she once did. Her likely future enjoyment of life is also compromised by the prospect that the surgery may be wholly or partially unsuccessful.

[93] The totality of the evidence satisfies me that there is no question that Ms. Milliken will continue to suffer pain and suffering as well as loss of her enjoyment of life at least until after rehabilitation from surgery to her shoulder.

[94] There is also a substantial likelihood that she will suffer ongoing pain and suffering and loss of enjoyment into the future after the shoulder surgery…

[105] I award Ms. Milliken non-pecuniary damages of $85,000.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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