DATE: 20061031

DOCKET: C44372

COURT OF APPEAL FOR ONTARIO

RE:

JASMIN MOMAND and JAWID MOMAND, Plaintiffs (Respondents) v. WILD WATER KINGDOM LTD., Defendant (Appellant)

BEFORE:

ARMSTRONG and BLAIR JJ.A. and

CUNNINGHAM A.C.J.S.C.J. (ad hoc)

COUNSEL:

Ronald P. Bohm

for the plaintiffs (respondents)

Larry Reimer

for the defendant (appellant)

HEARD:

September 22, 2006

On appeal from the judgment of the Justice H. Sachs of the Superior Court of Justice dated September 22, 2005.

E N D O R S E M E N T

[1] Wild Water Kingdom Ltd. (“Wild Water”) appeals the decision of Sachs J. dated September 22, 2005 granting judgment in favour of the respondents in the aggregate sum of $393,431.99.

[2] The only issues before us on this appeal relate to the trial judge’s calculation of the plaintiff’s loss of future income, as well as her consideration of contingencies related to the claim for certain future medication expenses.

[3] This action arose out of an accident that occurred in July 1999, when Jasmin Momand struck her head on a water slide operated by the defendant (appellant) causing injuries to her head, neck and shoulder area. Initially Ms. Momand was diagnosed with a whiplash injury to her neck and a concussion to her head. The concussion was subsequently confirmed by a neurologist. Since the accident, Ms. Momand has suffered constant migraines, which have affected her sleep and her ability to carry on normal activities of life. Migraine medication has provided some relief, but for financial reasons, Ms. Momand could not continue to take this medication on a regular basis. The migraine headaches were determined by a neurologist to be directly causally related to the head injuries suffered in July 1999. A physiatrist who examined Ms. Momand reported she was suffering from soft tissue (myofacial) pain syndrome which she opined was chronic. The chronicity of the pain related to Ms. Momand’s soft tissue injuries was confirmed by a defence medical.

[4] Although there was an intervening car accident in January 2004, in which Ms. Momand was injured, her injuries from that accident resolved within four months and there is no evidence of her suffering a head injury at that time.

[5] As a result of the injuries suffered by Ms. Momand, she has been unable to socialize on a regular basis and has difficulty caring for her family, which includes her husband and two young children. She has become anxious and depressed.

[6] After graduating as a dental assistant in June 2004, Ms. Momand obtained part-time work; however, in April 2005, due to her migraines she was forced to stop. It has been determined on a vocational evaluation that her best prospects for future employment are in the field of retails sales.

[7] In addition to other awards, Sachs J. awarded the sum of $201,230.72 for future loss of income and a total of $82,728.27 for future care costs, which included the sum of $46,742.00 for the future cost of the drug Zomig.

[8] The test in a situation where the trial judge has evidence upon which to make a finding of fact requires a palpable and overriding error. As to the calculation of damages for future loss of income, it is position of the appellant that the learned trial judge applied incorrect income numbers. We disagree. The figures accepted by the trial judge were based upon her proper exercise of discretion as applied to the evidence as a whole. The trial judge, in paragraph 65 of her decision, clearly indicated there was evidence before her from which she was able to select a figure for future earning capacity somewhere between the upper and lower limits as suggested in the evidence. Moreover, the trial judge tempered the award for damages for future loss of income in two important respects. First, she fixed Ms. Momand’s income capacity at $30,500 per year when she could just as easily have accepted evidence that Ms. Momand could work only one or two days a week or that indeed, she might never realistically hold any form of gainful employment. In other words, the trial judge could easily have chosen another figure which could have resulted in the claim for future loss being greater. Furthermore, the trial judge determined that Ms. Momand’s pre-injury anticipated retirement age would be 60, when she could reasonably have determined the retirement age to have been later. We would therefore not interfere with the trial judge’s calculation of damages for future loss of income.

[9] As to the submission that the trial judge erred in failing to reduce the amount awarded for Ms. Momand’s Zomig medication by the expected decreased cost over time due to generic competition, we agree with the appellant’s submission. There was clear evidence of potential future costs savings due to generic competition and precious little evidence of any offsetting contingency. In our view, it would be appropriate to reduce the award for the cost of Zomig medication by $10,000, bringing that amount to $36,742.00.

[10] With that exception therefore the appeal is dismissed and the cross-appeal has been abandoned.

[11] The respondents shall have their costs, which, given the fact that the appellant enjoyed some success, we fix at $8,500.00 plus disbursements and GST.

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”

“J.D. Cunningham A.C.J.S.C.J. (ad hoc)”