Kwok v. Abecassis, 2017 ONSC 164

CITATION: Kwok v. Abecassis, 2017 ONSC 164

COURT FILE NO.: CV-12-0208

DATE: 20170109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JIEFU KWOK

Plaintiff

– and –

DAVID ABECASSIS, SIMON ABECASSIS, and THE PERSONAL INSURANCE COMPANY

Defendants

T. Lehman and L. Fitzgerald-Husek, for the Plaintiff

D. H. Rogers and D. M. Rogers, for the Defendants, David Abecassis and Simon Abecassis

T.J. McCarthy, for the Defendant, The Personal Insurance Company

HEARD: November 14, 2016 to December 9, 2016

REASONS FOR JUDGMENT

HEALEY J.

OVERVIEW

[1] On February 22, 2011, the plaintiff Jiefu (“Jeff”) Kwok had the misfortune of being involved in a series of collisions on Highway 401 in the City of Toronto. He seeks damages in the amount of $8 million to compensate him for his losses in the aftermath of those collisions.

[2] Mr. Kwok alleges that he was cut off when an unidentified motor vehicle swerved into his lane, causing him to take evasive action and then lose control of his motor vehicle. The plaintiff’s vehicle veered across the eastbound lanes, and collided twice with the concrete median dividing the eastbound and westbound lanes of traffic on Highway 401. After coming to rest, a vehicle driven by the defendant David Abecassis, and owned by Simon Abecassis, collided with the plaintiff’s inert vehicle in a T-bone fashion.

[3] As a result, this tort action was commenced against the Abecassis defendants. The plaintiff also added his own insurer, the Personal Insurance Company (“the Personal”), which insured him under a policy of motor vehicle liability insurance containing standard Unidentified Automobile Coverage, as a well as a Family Protection Coverage under Ontario Policy Change Form (OPCF 44).

[4] The trial of this action took 20 days. On the 10^th day the jury was dismissed due to the volume and complexity of the evidence: Kwok v. Abecassis, 2016 ONSC 7391.

[5] It is undisputed that the plaintiff’s most significant injury from the collisions is a traumatic brain injury, although its scope and the severity of his resulting impairments were live issues throughout the trial. Liability was also vigorously contested.

LIABILITY

The Issues

[6] The issues to be determined are:

1. Whether an unidentified driver was involved in the events that led to the initial collisions with the barrier;

2. To what degree the negligence of the unidentified driver caused or contributed to the collisions;

3. Whether Mr. Kwok was negligent, and if so, to what degree; and

4. Whether there was any negligence on the part of David Abecassis, and if so, to what degree.

Uncontested Evidence

[7] The accident scene occurred on the eastbound express lanes of Highway 401, just east of Allen Road, on a section of the highway where transfer lanes exit the express lanes and merge onto the collector lanes. There are four lanes at that location. The far right lane, lane 4, is a transfer lane that ends approximately 200 metres after the bullnose that divides the express lanes from the transfer lanes. The lane directly to its left, lane 3, divides at the bullnose; it can be used either to access the collector lanes or to continue in the eastbound express lanes. Beside that is lane 2, and farthest to the left is the passing lane, or lane 1.

[8] It is undisputed that on the evening of February 22, 2011, the weather was clear and the road conditions were dry. The accident occurred at approximately 8:40 p.m. There was no natural light, but the area was illuminated by large overhead streetlamps. The highway is flat and straight in the area of concern.

[9] Officer Frederick Otchere arrived on the scene at 8:52 p.m. He observed the plaintiff’s vehicle, a Toyota Camry sedan, with its rear end next to the concrete barrier. It was positioned perpendicularly to oncoming eastbound traffic, across both the shoulder and most of lane 1. The Abecassis vehicle, a Toyota Sienna van, was facing eastbound in lane 1 and was still in contact with the plaintiff’s vehicle. The plaintiff was being attended to by ambulance attendants outside of his vehicle. David Abecassis and his mother, who was his only passenger, were unharmed.

[10] The only visible tire marks on the roadway were left by the plaintiff’s vehicle. The marks began on the far right side of lane 2, just inside the white lines, veered into lane 3, then back across lanes 2 and 1 to the stopped vehicle. The tire marks began approximately 50 metres to the west of the bullnose that divides the express lanes from the transfer lanes. No measurements or photographs were taken.

[11] Both of the biomechanical experts who testified relied on the findings and conclusions of Craig Wilkinson, an accident reconstructionist, who assessed the dynamics of the collisions to the plaintiff’s vehicle. When Mr. Kwok lost control of his vehicle, the car continued to move down the road while rotating counter-clockwise. It first hit the concrete barrier with the right front corner (collision 1), spun counter-clockwise and hit the rear right side (collision 2), and came to rest with the front of the car pointing across lane 1. Its position was not completely at a 90° angle to the barrier, but angled slightly eastward.

[12] The Abecassis vehicle was moving in a straight line in lane 1 when it collided with the passenger side of the plaintiff’s vehicle (collision 3), causing both the front and back doors, and the B-pillar between them, to be pushed inward. The Abecassis vehicle sustained damage to the front end as a result.

[13] Mr. Wilkinson determined that collision 1 had the greatest severity of impact, with a speed change measured between 24 and 29 km/h. The angle of impact was at a point between 38 and 54° to the right, as measured from the middle front of the car, with the resultant force moving through the vehicle toward the back left corner. Collision 2 had the least severity, with a speed change of approximately 15 km/h. The angle of impact was between 130 and 160°, with the resultant force moving from the right rear through to the left front of the vehicle. Collision 3 had a speed change measured between 19 and 26 km/h. The angle of impact to the right side was at approximately 100 to 110°, so just slightly beyond a T-bone impact.

[14] All of the parties have agreed that these three collisions constitute one accident. This court agrees and confirms that these collisions, unfolding with the timing and sequence that they did, reveal no break in the chain of causation and should be characterized as a single accident, following the law as set out in Miller v. Fielding and Resch (1956), O.W.N. 869 (C.A.); Ark v. Thompson, 1980 CarswellOnt 3531 (S.C. (H. Ct. J.)), and Keith et al. v. Guaranty Trust Co. of Canada et al. and three other actions (1974), 1974 CanLII 999 (SK CA), 57 D.L.R. (3d) 475 (Sask. C.A.).

Negligence of the Unidentified Driver

[15] Mr. Kwok currently has no memory of being on the highway that evening. His first recollection following the collision is of being in the hospital later that night. Officer Otchere spoke with Mr. Kwok briefly when they first interacted at the roadside. Mr. Kwok told him that he was cut off, which is why he lost control, and then was hit by a minivan. The plaintiff was transported to Sunnybrook Hospital for assessment and treatment. Officer Otchere went to the hospital to obtain a statement from him, and after receiving medical clearance was able to do so, by his estimation, slightly before 11:30 p.m. He found that Mr. Kwok was able to talk and respond to his questions. The officer testified that he recorded all questions posed to the plaintiff, as well as the plaintiff’s verbatim answers. Officer Otchere stated that he also read the questions and answers back to Mr. Kwok and no changes were noted. Their exchange was as follows:

Q: What happened tonight?

A: I was driving in the express lane and I was going to take the collectors at Allen Road when a car cut me off. The car was also going in the collector lanes.

Q: When you say the car cut you off, what do you mean?

A: The car came in my lane causing my car to spin around before hitting the side.

Q: Did you see what type of car?

A: No, it came out of nowhere. I didn't see it.

Q: Did the car make contact with yours?

A: No.

Q: What happened after you hit the concrete guide rail?

A: A van hit my car on the passenger side.

[16] Mr. Kwok also stated that, counting from the left, he was in the right lane. He informed the officer that he did not make a lane change. He stated that he was wearing his seatbelt, his speed was 100 km/h and that the road and weather conditions were dry and clear.

[17] Entered into evidence is a series of 911 telephone calls placed by other motorists who were travelling on the 401 at the time that the events unfolded. The individuals who placed the calls did not testify; the audiotapes of their telephone calls were placed into evidence through application of the principled approach to hearsay. The first caller, Brian Chan, was the only one to witness the interaction between the plaintiff’s vehicle and the unidentified motorist, and accordingly his evidence is most probative of the issue of liability in relation to the plaintiff and the unidentified motorist.

[18] The relevant portions of Mr. Chan’s telephone call are as follows:

[W]e’re driving on the highway. We just witnessed an accident

… We are on the collectors now, but we… We didn't stop for it, because we're in the.... We were on the 401 going eastbound on the express lane just before getting off on the collector lanes for the Bayview Avenue, Yonge Street and Avenue Road exit

[O]ne vehicle's involved in the accident. One vehicle kind of cut him off or, like pushed him out of the lane, so he did an emergency avoidance-like maneuver, like you try to turn right. So then he lost control of his car…

[A]nd veered left and he went across all the lanes and he smashed headfirst into the concrete barrier on the left side of the express lanes. The car is… It appeared to be stopped and spun around and we could see the front of the car is, is badly damaged. It's all smashed up. He hit the… He tried to avoid the car that was, like cutting him off. Hit the concrete guardrail pretty hard

We could hear it, we could see it

What kind of vehicle was it? Maybe a dark-colored sedan. Mid-size sedan.

Yeah, I saw… I witnessed it from… We were driving behind him. A car was going towards… I guess not paying attention, didn't see him in the… On his blind spot or on his right side.

And we saw, I think that driver that got in the accident, like swerve [swerved] right to avoid the car coming directly into his lane

[19] Mr. Chan also stated that he did not have a description of the vehicle that cut the other driver off, but stated that it was a car. As far as Mr. Chan could ascertain, that unidentified driver kept going. Mr. Chan did not wait at the scene because he stated that it was not safe to do so.

[20] Mr. Chan’s call was placed at 8:42 p.m. Officer Otchere testified that he received the call which dispatched him to the scene at 8:43 p.m. Given the timing, location and description of the events, including the loss of control and collision with the barrier, there is no question that Mr. Chan was describing the accident that involved the plaintiff.

[21] Though the existence of the unidentified motorist was not contested following the ruling on the admissibility of Mr. Chan’s call, this court makes a finding that collisions 1 and 2 were preceded by the involvement of an unidentified motorist.

[22] After cautious consideration of the untested evidence of Mr. Kwok and Mr. Chan’s 911 audiotape, noting in particular the consistency between them in the facts relayed, and their consistency with objective evidence such as the location of the accident and skid marks, I place a great deal of weight on their contents. Mr. Chan describes a situation in which Mr. Kwok was faced with another vehicle pulling into the lane where he had the right-of-way. The unidentified vehicle was coming from Mr. Kwok’s left side. It is important that Mr. Chan states that he was driving behind the plaintiff’s vehicle; I find as a fact that he was in the same lane as Mr. Kwok, following directly behind him. This provided Mr. Chan with an unobstructed view of the movement of each of the two vehicles in question. Mr. Chan’s spontaneous words should be given their common-sense and ordinary meaning; “kind of cut him off or, like pushed him out of the lane” paints a vivid picture of the unidentified driver as being in the wrong. The descriptors used by Mr. Chan compel me to the conclusion that the unidentified driver was not keeping a proper lookout, that he failed to see the plaintiff in his blind spot or failed to check for the presence of a vehicle in the lane to his right, and drove directly into the plaintiff’s lane. Mr. Chan’s description of the plaintiff's reaction was an “emergency avoidance-like maneuver”. With such description, there is no doubt that this was a sharp and sudden movement on the part of Mr. Kwok to avoid a collision, which led to the loss of control.

[23] The circumstances under which Mr. Chan made this 911 call provide a high degree of reliability with respect to the accuracy of the information that he conveyed. He called immediately after observing the accident. He was speaking spontaneously of the events that he had just seen, without the passage of time in which his memory may have been inclined to fill in any gaps. He had no motive to lie. In calling emergency services it can be inferred that he was expecting the police to act on the information that he was providing, giving a heightened motivation to be as accurate as possible. He did not try to stay anonymous, but rather provided his name and telephone number, obviously for police use in the event that he needed to be contacted again.

[24] Mr. Kwok’s statements to Officer Otchere at the scene and in the hospital corroborate the fact that he was cut off by a car moving toward the collector lanes. The plaintiff also told the officer that he was in the right lane, and that he did not make a lane change. Counsel agreed, as does the court, that he very likely did not mean lane 4. I do not discount Mr. Kwok’s recollection of these events even though he later lost all memory of them. The court heard evidence from neurologists testifying for both the plaintiff and the defence that memories can be kept in the brain’s short-term circuitry for a period of time, even though they are not being laid down as long-term memory due to brain trauma, although the time period in this case is at the outer limit of such retention. Even more, his recollection should not be discounted given that it so closely aligns with the objective report made by Mr. Chan.

[25] I find as a fact that the driving behavior of the unidentified motorist fell below the standard of care of an ordinary and prudent driver, and that his negligence created a situation of danger for the plaintiff and surrounding motorists.

Contributory Negligence

[26] Counsel for the Personal submitted that the court should take into account that the plaintiff was planning to take the collector lanes, and that perhaps he was he was travelling in lane 1 and cutting it too close to safely move over to the transfer lanes. He then put himself in a situation of having to over-steer, relying on the fact that the skid marks began, according to Officer Otchere’s estimate, 50 metres before the bullnose. The first problem with this submission is that one can infer from Mr. Chan’s description of the plaintiff steering to the right that the unidentified vehicle was moving over from Mr. Kwok’s left side, meaning that the plaintiff vehicle had to be in either lane 2 or 3. The second problem, in addition to the fact that the skid mark measurements were approximated, is that Mr. Chan had enough distance to be able to exit from the express lanes even though his attention was distracted by the movement of the plaintiff’s vehicle. I infer from this that Mr. Kwok likewise would have had sufficient time to exit. Even if they were in lane 2 at the time the unidentified vehicle made his move, Mr. Wilkinson’s evidence confirmed that a normal lane change can be made in 50 metres without a hard steering manoeuvre.

[27] However, I find as a fact that Mr. Kwok was probably travelling in lane 3, intending to then continue on in that lane as it divided at the bullnose to transfer onto the collector lanes. The unidentified driver was travelling in lane 2 prior to his negligent maneuver. The fact that the skid marks were described by Officer Otchere as beginning on the far right side of lane 2 does not automatically lead to the conclusion that the plaintiff’s vehicle started its movement from that lane. The absence of any significant skid marks in lane 2 suggests otherwise. The officer’s testimony did not provide a great deal of detail about the marks on the roadway, but taken together with Mr. Kwok’s description of being in the far right lane, I infer that the marks in lane 2 were left by either the front left or back left tire, or both, as Mr. Kwok braked suddenly and careened to the right before entering a yaw that moved him counter-clockwise. But even if I am incorrect and Mr. Kwok started from lane 2, I still find that, had he not been cut-off, there would have been sufficient time to move into lane 3 before reaching the bullnose.

[28] There is nothing in the evidence from which the conclusion can be drawn that Mr. Kwok did anything wrong in the situation. There is no evidence that he was speeding or inattentive. To the contrary, his quick response to the unidentified driver’s negligence suggests that he was paying attention to the vehicles around him. Steering sharply to the right was a reasonable action and perhaps the only available response in that situation.

[29] Mr. Wilkinson testified that over-steering, which is an engineering term, is one of the most common ways for people to lose control of their vehicle. It can occur to a normal driver who has to make an emergency or hard steer to avoid a collision, and who attempts to bring their vehicle back under control by steering in the opposite direction. Mr. Wilkinson was clear that an over-steer does not mean an over-reaction. Negligence cannot be inferred based simply on the plaintiff’s loss of control of his vehicle. Even if Mr. Kwok did overreact by steering too sharply in one direction or another, the doctrine of “agony of collision” applies to the triggering emergency situation: Hunter v. Wismer (2003), O.T.C. 1112 (Sup. Ct.), at para. 42. This doctrine establishes that a person faced with an emergency situation not of his own making is not held to “a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course”, nor is he even expected to exercise “extraordinary skill, presence of mind, poise or self-control”: Canadian Pacific Limited v. Gill et al., 1973 CanLII 2 (SCC), [1973] S.C.R. 654, at p. 665; Hunter v. Wismer, at para. 42. Mr. Kwok did what an ordinary and prudent driver would do in the circumstances. In an attempt to avoid being side-wiped by a vehicle coming into his lane, he reacted instinctively and immediately to what he viewed to be an emergency situation.

[30] There are no facts in this case on which a finding of contributory negligence can be made in respect of Mr. Kwok.

Negligence of David Abecassis

[31] As described earlier, the plaintiff’s vehicle came to rest on the left shoulder and overlapped most of lane 1. The Abecassis vehicle did not immediately collide with Mr. Kwok’s vehicle. There were 911 calls placed by other motorists subsequent to Mr. Chan’s which establish a reliable timeline for the evolution of the events. From this timeline, it is clear that there was a lapse between the plaintiff’s vehicle being disabled on the shoulder and it being hit by Mr. Abecassis.

[32] Following Mr. Chan, four other callers described a single car being involved. The last of those calls was recorded as coming in at 8:44:24 p.m. A 911 call was then placed by Mr. Kwok at 8:44:36 p.m.; the only word uttered by him was “yes”, before the call abruptly ended. The Ontario Provincial Police (OPP) operator attempted to return the call in the next two minutes but received no answer. At 8:46:54 p.m. the operator left a message on Mr. Kwok’s voicemail. In the meantime, a 911 call was placed by an unidentified caller at 8:45:54 p.m. who, after reporting the accident location, stated “I just saw there’s a car there lingering in the… in the left lane and it’s hanging out on the… on the left lane and cars, like they're piling up on it.”

[33] I find as a fact that this timeline unequivocally establishes that the plaintiff’s vehicle was not struck by the Abecassis vehicle until 8:44:36 p.m., and that the third collision was the reason Mr. Kwok’s 911 call ended. He was unable to continue that call because he was rendered unconscious by collision 3. This is corroborated by Mr. Abecassis’ evidence that he approached the plaintiff’s vehicle following the collision and asked the driver whether he was okay, but there was no response. He stated that the driver looked like he was unconscious. Given that some seconds would have passed between Mr. Kwok hitting the barrier and Mr. Chan placing his 911 call at 8:42:10 p.m., I find as a fact that at least two and a half minutes elapsed between the plaintiff’s vehicle coming to rest and being hit by Mr. Abecassis.

[34] The issue to be decided is whether Mr. Abecassis was keeping a proper lookout and leaving a safe distance between himself and the car in front of him while travelling at a reasonable highway speed. The governing statute is the Highway Traffic Act, R.S.O. 1990, c. H.8 which states:

158. (1) The driver of a motor vehicle or street car shall not follow another vehicle or street car more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway.

[35] Mr. Abecassis’ evidence is that he was driving in the passing lane, having just picked his mother up from work at the airport. He was unsure how long he had been in that lane. He testified that he lives in North York and frequently drives on the 401. He stated that his speed was around 100 km/h, but was fair in admitting that he was not looking at his speedometer and cannot say exactly how fast he was going. He described the traffic as being moderate, “flowing”, or “typical” for that time of day. When pressed by plaintiff's counsel to describe how many seconds may have elapsed between vehicles passing any given point that night, he agreed that it would have been less than 15 seconds, and was unsure whether it would have been less than 10 seconds. Prior to the accident occurring, he cannot recall whether there were cars behind or beside him. He testified that he was following a white car and was approximately 8 car lengths behind that vehicle, which he perceived to be a safe distance. Mr. Abecassis agreed that there was normal visibility, and that the area was reasonably well lit with streetlights.

[36] Mr. Abecassis did not say that he saw any brake lights or traffic slowing ahead. He testified that he was looking forward at the white car when suddenly it swerved to the right to avoid the plaintiff’s vehicle. That was his only indication that there was a problem ahead. When the white car moved aside, a car wreck was revealed in his lane, blocking his lane and part of the shoulder. It was approximately 10 car lengths ahead of him when he first saw it. He slammed on his brakes hard by way of emergency reflex and then made impact with the plaintiff’s vehicle. He cannot recall whether he attempted to steer to avoid it.

[37] Counsel for Mr. Abecassis argued that the only two witnesses who remember the collision are David Abecassis and his mother, and their evidence proves that Mr. Abecassis was paying attention, leaving a reasonable amount of space between his vehicle and the one in front, and was faced with an emergency situation when he found the Kwok vehicle blocking his lane. In those circumstances he should be afforded the benefit of the law as set out in Canadian Pacific Limited v. Gill et al.; he was in the “agony of collision” and acted reasonably under the circumstances.

[38] There is reason, however, to question both his contention that he was keeping a safe distance back given the speed at which he was driving, and that he was paying reasonable attention to what was going on around and in front of him.

[39] There is evidence that other vehicles were able to avoid the plaintiff’s vehicle during the two and a half minutes that elapsed between collisions 2 and 3. The second 911 caller told the operator at 8:42:47 p.m. that a single vehicle was partially blocking the left express lane. She also stated “fortunately, there aren’t too many vehicles on the road, so everyone’s kind of going around”. She was able to observe that the driver of the car was still in the vehicle at that time, from which it can be inferred that he was seated upright and visible through the windows. She observed that the front of the vehicle was steaming. She was also able to give a fairly accurate description of the vehicle to the operator, indicating that she believed it to be a dark navy blue Toyota Corolla.

[40] In his statement, Mr. Abecassis did not tell the police that there were any vehicles in the lane to his right, and to this day he has no knowledge of whether vehicles, other than the white car, were in his vicinity. He claims that, upon approaching the accident location, he did not notice any brake lights or slowed traffic to his right or up ahead. I note that there is no evidence of brake lights. At the same time, I find it reasonable to accept that traffic would have slowed, to some extent, in the presence of a vehicle with obvious front end damage, blocking a lane, with steam or smoke rising from the engine area, as reported by the second 911 caller. But Mr. Abecassis was not taking note of the traffic in the lane beside him; he could not recall whether there was a car to his right as he was travelling eastbound.

[41] The plaintiff’s counsel urged the court to consider that with the time duration of 10 seconds between vehicles, in the 2 and 1/2 minutes that passed, 15 vehicles in the passing lane ahead of Mr. Abecassis would have avoided the plaintiff. If there was an average of 5 seconds between vehicles in that lane, which plaintiff’s counsel submitted is more consistent with moderate traffic patterns, then up to 30 vehicles were able to avoid the plaintiff's vehicle before it was struck by Mr. Abecassis. Mr. Abecassis’ counsel urged the court to reject such speculation. While there is some guesswork in these submissions, they are not entirely without foundation. The white car preceding Mr. Abecassis avoided the collision. Further, the second 911 caller stated that “everyone” was going around the plaintiff’s vehicle – a phrase from which I infer that more than a single driver avoided colliding with Mr. Kwok’s vehicle. While it is not impossible that only two or three cars moved out of lane 1 to avoid the collision in the 2 and 1/2 minutes prior to Mr. Abecassis’ contact, logic suggests that at that time of the evening and in that location, it is more probable than not that an even higher number of drivers were able to avoid a collision. It is unnecessary to decide on an exact number before using this evidence of avoidance to assess Mr. Abecassis’ driving behaviour. Where other similarly situated drivers have been able to avoid a collision by keeping a proper lookout and driving at a reasonable speed, the failure of another driver to avoid such a collision can be attributed to the contrary behaviour: Krieg v. Eramian, 1981 CarswellOnt 2048 (S.C. (H. Ct .J.)).

[42] So while the court can accept that, as argued by Mr. Abecassis’ counsel, even with the artificial lighting the area would be darker than in bright daylight, and that lights from oncoming cars could hinder a driver’s view, these challenges did not interfere with the ability of other drivers to detect the plaintiff's vehicle as a hazard. Officer Otchere, an independent witness with great familiarity with this stretch of highway, testified that the artificial lighting makes the area, in his words “very clear, very bright, very visible” at night. What is unknown is the distance between any of the vehicles approaching the Kwok vehicle preceding Mr. Abecassis, and so how closely the perspective of those other drivers resembled that of Mr. Abecassis.

[43] Ultimately, I have come to the conclusion that it is not necessary to have that information in order to determine that Mr. Abecassis was travelling too closely behind the white vehicle. His distance from the white car and the speed at which he was travelling prevented him from seeing the plaintiff’s vehicle until it was too late to avoid a collision by applying his brakes.

[44] Mr. Wilkinson determined that the Abecassis vehicle was moving at a speed of 31 to 42 km/h at the time that it collided with the Kwok vehicle. Assuming a speed of 100 km/h at the time that full braking was applied, the Abecassis vehicle had to travel between 40 to 55 metres, over the course of 2.0 to 2.9 seconds, before making contact with the Kwok vehicle. The court received evidence from Mr. Wilkinson about Mr. Abecassis’ potential sightlines in the few seconds prior to the collision, based on an assumption that Mr. Abecassis was 8 car lengths behind the white vehicle when he saw it swerve. This distance was strictly an estimate given by Mr. Abecassis, and was contradicted by his mother, who gave an estimate of 5 to 6 car lengths. Based on the assumption that Mr. Abecassis’ recollection is correct, Mr. Wilkinson’s calculations reveal that the plaintiff’s vehicle would be almost fully or fully revealed to him at either 3 or 4 seconds prior to impact, when the white vehicle moved out of lane 1. However, as can be seen in Figures 4 and 8 of Exhibit 18, even before the 3 or 4 second mark, some of the Kwok vehicle was visible on the shoulder of the road. What the lighting conditions in Exhibit 18 fail to capture is that the front headlights of the white vehicle would have been illuminating the Kwok vehicle; it was not simply a dark object sitting in the path of the unwary. Therefore, the fact that Mr. Abecassis failed to detect it at all before the white vehicle moved to the right indicates to the court that he was either not keeping his attention on the road to the degree required, or he was following too closely to the white car to have a wide enough perspective to see the Kwok vehicle on the shoulder. If that was the case, he was not eight car lengths behind, but something much closer. His mother’s estimate may be more accurate, or he may have been following even more closely.

[45] Mr. Wilkinson’s evidence is that if both vehicles were travelling at a speed of 100 km/h, the Abecassis vehicle was 1.4 seconds behind the white car, with a gap of 8 car lengths. With less of a gap, obviously that time decreases. Whether 8 car lengths or less, it left an unreasonable amount of time to avoid a collision with the vehicle travelling ahead. Imagine that instead of the Kwok vehicle being disabled and sideways, it had come to a full stop in a line of traffic that had stopped for another reason. Had the white car swerved in those circumstances, would Mr. Abecassis still be able to argue that this was an unexpected emergency? He would not, since slowdowns and traffic jams, with vehicles coming to a complete standstill, occur regularly on the 401 highway, and even then, at these speeds and having allowed only this distance between himself and the white car, Mr. Abecassis would not have been able to stop in time to avoid a collision.

[46] The fact that other drivers may travel this highway at these speeds and leave such distances between their own and the preceding vehicle does not make it reasonable and prudent driving behaviour. As Mr. Wilkinson's testimony confirmed, such a distance gives a driver only a fraction of a second after perceiving the danger to initiate braking, and check his mirror or over his shoulder to determine whether it is safe to change lanes. This does not even factor in enough time for a driver to activate his or her signal indicator.

[47] Mr. Wilkinson also gave the opinion that Mr. Abecassis would have been able to avoid a collision had he chosen to brake and steer. This assumes a speed of 100 km/h and a braking distance of 40 to 55 metres; with a strong avoidance steer to the right, Mr. Abecassis could have missed the Kwok vehicle if he had started to move into the right lane at a distance of 33 metres away from the Kwok vehicle. Accordingly, he had somewhere between 7 and 22 metres to initiate both braking and steering maneuvers, which translates to .25 to 0.8 of a second. If he was travelling faster than 100 km/h, his braking time would be longer than 2.0 to 2.9 seconds, and accordingly, he would have had a longer period to decide to steer as well as brake. Even with that longer period of time, I agree with Mr. Abecassis’ counsel that this does not permit sufficient time to avoid the accident. However, I disagree that this means that Mr. Abecassis is not at fault. He left himself an inadequate amount of time to react to the Kwok vehicle by travelling too closely for his speed; he left himself and others vulnerable to harm in an emergency situation for which he was partly responsible. While I appreciate that the white car was able to steer and avoid the Kwok vehicle, it is an unfair comparison because there is no evidence that the view of the driver in the white vehicle was blocked by another vehicle in front of it. As I have previously concluded, Mr. Abecassis’ view was blocked because he was travelling too closely.

[48] Given that Mr. Abecassis contributed to an emergency situation through his own negligence, the “agony of collision” doctrine is not a defence that is available to him: Lloyd v. Fox (1991), 1991 CanLII 1007 (BC CA), 57 BCLR (2d) 332 (C.A.), at p. 4; Deschamps v. Chu (1997), 32 O.T.C. 32 (Ct. J. (Gen. Div.)), at pp. 18-19.

[49] Ultimately, the fact that Mr. Abecassis was travelling too closely for his speed was the reason why he was unable to avoid the collision. And the reason that he did not detect the Kwok vehicle is that he was following too closely and not paying adequate attention to the road ahead of him. In doing so, he fell below the standard of care expected of a reasonable and prudent driver operating a vehicle on the 401 highway, and accordingly must be found negligent.

Apportionment of Liability

[50] This case bears some resemblance to the fact situation in Ark v. Thompson, where an initial collision, which was found to be entirely due to the negligence of the first defendant, left the plaintiff's vehicle resting broadside across the through lane. The second defendant motorist, who was travelling behind the plaintiff’s motor vehicle, then hit it as a result of failing to keep a proper lookout.

[51] In apportioning liability, Southey, J. stated at p. 8:

The main cause of the second collision, in my judgment, was the negligence of Thompson, which caused the first collision and left the plaintiff's vehicle blocking the southbound lane. To use the words of Laidlaw, J.A. in Miller v. Fielding and Resch, [1956] O.W.N. 869, where the Court of Appeal was dealing with a situation similar as to liability, the negligence of Thompson continued to operate as a causal factor and force in the second collision. On the other hand, O’Neill, in my view, was negligent in failing to keep a proper lookout. The negligence of both Thompson and O’Neill contributed to the damages suffered by the plaintiff in the second collision, in my judgment, and I find that the degrees of fault to have been 80% for Thompson and 20% for O’Neill.

[52] In my view, the case before me is also one in which it would be inappropriate to attribute fault equally between the negligent drivers. The facts that I have found here illustrate a case similar to Miller v. Fielding and Resch where the chain of events leading up to the collision involving Mr. Abecassis was part of an unbroken series initiated by the negligence of the unidentified driver. As such the collisions should not be considered as separate events; rather the first two collisions had a proximate connection with the third. Unlike Miller v. Fielding and Resch where the court found it impracticable to apportion the degree of fault between the drivers, I find in this case that the greater responsibility should be attributed to the unidentified driver, who did not have the right-of-way and who had a reckless disregard for the drivers around him when he cut off Mr. Kwok. On the other hand, following too closely at high speeds, while paying insufficient attention to the roadway, is also negligent driving behaviour. In this case I find that the apportionment of fault should be 70% for the unidentified driver and 30% for the Abecassis defendants.

DAMAGES

Pre-collision Functioning and Health

[53] Mr. Kwok was 50 years old at the time of the collisions. Although not in optimal health nor in a position to ever be a high income earner, the evidence satisfies this court that he was able to live both fully and independently, and was en route to stabilizing his economic situation despite setbacks in the five years leading up to the accident.

[54] Mr. Kwok had married Ellie Kwong in 1987 and they have one son, Derrick, born in 1988. Mr. Kwok was born in Vietnam. He and his birth family immigrated to Canada in 1979, having spent time in China following the Vietnam War. After the plaintiff came to Canada he attended Seneca College for an industrial mechanic course. Though he earned satisfactory grades and was recommended for graduation, he did not complete the program because his mother passed away.

[55] Mr. Kwok then moved on to commercial carpet cleaning, where he worked in offices. In or around 1990 he started his own carpet cleaning business. Mrs. Kwong explained that her husband worked very long hours, seven days per week. During this time, he met Paul Wareham, who was also working in the same type of business, and who remains his friend. Mr. Wareham described Mr. Kwok as being a very hard worker and a “go-getter”. That business came to an end in 1996. At the beginning of January 1997, Mr. Kwok began working at Pizza Pizza, and acquired a 25% interest in the franchise. Mrs. Kwong described that he continued to work very hard; he usually started at 10 a.m. and returned home after 11 p.m. His work schedule was one of the strains on their marriage.

[56] On June 25, 2006, Mr. Kwok, who had high blood pressure and excess weight, suffered a heart attack. He had triple bypass surgery and thereafter went through a cardiac rehabilitation program for several months, during which time he was off work. He returned to work at Pizza Pizza on July 23, 2007, and remained there until November 21, 2008. His pay rate was $12.50 per hour. His Record of Employment indicates that he worked in the position of assistant manager at the time, and was terminated due to a shortage of work. I infer from the evidence that this meant that there was insufficient work to justify his employment; Mr. Kwok testified that he only did light duties after his bypass, but the work was still too fast-paced for him.

[57] Dr. Robert Kwan, who has been Mr. Kwok's family physician since the time of this heart attack, testified that Mr. Kwok had no major problems from a cardiac point of view after he went through the rehabilitation. His chances of having a repeat heart attack have always depended on his motivation to make better lifestyle choices, particularly with respect to his diet. Dr. Kwan testified that Mr. Kwok would have had no job limitations following his heart attack, other than for manual labour.

[58] Mr. Kwok applied for employment insurance benefits after leaving Pizza Pizza. His application indicates that he was willing and able to work immediately, with no restrictions on his hours of availability. He was sent for job retraining through Service Canada. In 2009 he attended a course to become a personal service worker (PSW). Although there are no documents to support his attendance in the program, Dr. Kwan testified that Mr. Kwok was required to take a tuberculin skin test for that course. There are references to the course in Dr. Kwan’s clinical notes, and Mr. Kwok was required to take time away from it because of a flare-up of gout in his right foot. Ultimately it seems that he questioned his ability to do the physical lifting required of a PSW, and in October, 2009 requested a letter from Dr. Kwan to permit him to change courses.

[59] Mr. Kwok then attended Pharma-Medical Science College of Canada to study a Food Safety and Quality program. A letter from the college administrator indicates that Mr. Kwok’s study period was from November 23, 2009 to June 4, 2010. However, both Mrs. Kwong and Mr. Kwok have testified, and the evidence shows that they reported to multiple health practitioners, that he was still continuing to attend this course at the time of the collisions. I find some support for such a state of affairs from the income tax returns filed, which shows a tuition payment by Mr. Kwok in 2010 of $8,950, and differing amounts recorded on his son’s and wife’s returns for that same year, with Mrs. Kwong showing a transfer from child deduction of $5,000. As I find it difficult to accept that almost $9,000 would be paid for a course lasting less than five months’ duration in 2010, this is support for the proposition that the letter from Pharma-Medical Science College is misleading and that Mr. Kwok continued to be in that program after June 2010. The evidence is that he was attending school in the morning at the time of the collisions, and working part-time as a dispatcher at Swiss Chalet.

[60] It is unknown when Mr. Kwok began to work at Swiss Chalet. He testified that he was receiving cash for a while, before being placed on the payroll. His employment record from Swiss Chalet indicates that he began work on January 22, 2011. His last day of paid work was February 8, 2011. During that three week period he earned gross income of $1,552, slightly more than $500 per week. There is wide variability in gross earnings between those weeks however, with a low of $272.25 and a high $660. That being the case, it may be misleading to project an annual income for Mr. Kwok based only on three weeks of earnings.

[61] Both his son and wife testified that Mr. Kwok was very focused on work. Derrick Kwok explained that work ethic is significant and highly valued in Asian culture. Dr. Kwan testified to that same cultural norm. Derrick stated that even after his heart attack his father was eager to get back to work at the first chance. He described his father as a person who was highly determined, and who would not give up.

[62] Sometime in 2008, Mr. Kwok and Mrs. Kwong separated due to stresses created by Mr. Kwok’s long work hours and her discovery that he had been gambling. The extent of Mr. Kwok’s gambling is unknown, but Mrs. Kwong indicated that it had become worse in 2008. It may have contributed to Mr. Kwok declaring personal bankruptcy in 2008. This may have also been part of the fact pattern leading Mr. Kwok to leave Pizza Pizza in 2008, as he was apologetic to Mrs. Kwong for his gambling and told her that he intended to change his path by retraining. Mrs. Kwong testified that it was not clear that they would divorce; she was waiting to see what transpired after Mr. Kwok had completed his schooling. This testimony, coupled with the fact that they had not reconciled at the time of the accident, lends further support to the conclusion that Mr. Kwok had not completed his food inspection and quality control course as of February 2011.

[63] Although living separate and apart after 2008, they saw each other once a week when Mr. Kwok came to take Mrs. Kwong grocery shopping. Although not in great detail, Mr. Kwok informed his wife of events taking part in his life, such as his schooling, or when he had a problem with his gout.

[64] The defence argued that Mr. Kwok concealed his bankruptcy, gambling and marital separation from his physicians, pre-and post-accident, and so none of them really knew what was going on Mr. Kwok’s life in the years leading up to the accident. While this may be partially true, there is not significance to it. Dr. Kwan certainly knew, as of 2009, of the marital separation and the bankruptcy. But marital separation, gambling and bankruptcy do not in and of themselves render an individual dysfunctional. Absent evidence that these issues were interfering with Mr. Kwok's ability to get on with his life, they have no significance to this case. The preponderance of evidence is that he was working, going to school, socializing when possible, and maintaining meaningful contacts with his immediate and extended family members who live in the Toronto area.

[65] Derrick Kwok described his father as a positive and happy person. He had perfect cognitive abilities and his memory was “spot on”. He and his father shared interests in travel, basketball and technology. His father enjoyed fishing and spending time with his friends and family. Mrs. Kwong also stated that before the accident his memory was normal, and he was able to focus and concentrate. He liked to get together with his extended family, particularly for celebrations. Following their separation he resided with two of his sisters. He enjoyed cooking and eating. He watched basketball and baseball on television. She described him as a “normal person”. His friend Paul Wareham described him as a “normal guy”, and his dentist described him as a pleasant, talkative patient who liked to share stories about his work.

[66] Counsel for Mr. Abecassis argued that an adverse inference should be drawn from the fact that evidence was not elicited from Mr. Kwok’s sister, with whom he lived in the years leading up to the accident, who may have been in the best position to provide the court with information about what was going on in his life. Drawing an adverse inference from the failure of a witness to testify should be done cautiously: Miller v. Carley (2009), 2009 CanLII 39065 (ON SC), 98 O.R. (3d) 432 (Sup. Ct.), at para. 202. The law is that, generally, adverse inferences arising from the failure to call a witness may be considered by the trier of fact where:

(i) A party does not call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party, or

(ii) A party does not call a material witness over whom the party has exclusive control and does not explain it away.

See: Lambert v. Quinn (1994), 1994 CanLII 978 (ON CA), 110 D.L.R. (4th) 284 (Ont. C.A.), at pp. 7-8; MacMaster v. York (Regional Municipality) (1997), 42 M.P.L.R. (2d) 90 (Ct. J. (Gen. Div.)), at pp. 12, 15; and Bishop-Gittens v. Lim, 2015 ONSC 3971, 75 C.P.C. (7th) 121, at paras. 14-16, citing Parris v. Laidley, 2012 ONCA 755, 2012 CarswellOnt 13841 and Sidney N. Lederman, Alan W. Bryant, & Michelle K. Fuerst, The Law of Evidence in Canada (Markham: LexisNexis Canada Inc., 2014) at 386.

[67] There is some merit in this submission given the vagueness of the evidence concerning Mr. Kwok’s work and educational status in the months leading up to the collisions. But in order to draw such an inference, I find that I would be grossly speculating about the degree of knowledge Mr. Kwok’s sister may have held about him. Even though Mr. Kwok lived with her at the time of the collisions, and continued to do so after, the evidence bears out that it was her husband who assumed a caregiving role after the accident. This may have been because Mr. Kwok’s sister worked during the day, or it may have been that the brothers-in-law had a closer relationship; either is speculation. Nothing is known about these family members other than that Mr. Kwok’s brother-in-law passed away in December 2014. The defence elicited no evidence, from either of the family members who did testify, about the degree of knowledge that Mr. Kwok’s sister might have about his day to day life, from which this court may have been able to draw the inference that her evidence would be unhelpful to the plaintiff. Further, given the evidence that I have already reviewed to reach the conclusion that Mr. Kwok was attending school and working part-time in February 2011, this adverse inference could not be drawn in any event.

[68] Mr. Kwok had no retirement savings. He testified that he wanted to be a quality control food inspector, and planned to work to age 65 or, if his health permitted, to age 70. Derrick Kwok’s impression was that his father remained optimistic despite his setbacks in previous years and was looking forward to building a new career.

[69] In addition to his high blood pressure and episodic gout, Dr. Kwan testified that at the time of the accident Mr. Kwok had hypothyroidism, gastritis, hyperuricemia and sleep apnea. All of these medical issues were being managed, with medication where required, and created no functional limitations.

[70] Dr. Kwan testified that before the collisions Mr. Kwok had no difficulties with concentration, short-term memory problems, mood, headaches, impulsivity, no childlike behavior, no delusional thoughts, no issues with perseveration, vision problems or neck or back pain. There were no problems that would cause concern about his ability to live independently or engage in work, as long as that work did not involve heavy lifting or physical exertion.

[71] Much time was spent during this trial on allegations of pre-existing anxiety, personality issues, dizziness/balance problems and fatigue. Dr. Kwan’s detailed notes provided the richest source through which to examine the extent of Mr. Kwok’s pre-collision health. Dr. Kwan has been Mr. Kwok’s physician for a decade, and remains so today. I found Dr. Kwan to be a reliable and credible witness. He was careful and detailed in his testimony, as he was in his medical note-taking and reporting. I find as a fact that, had there been any significant issues surrounding anxiety, personality, dizziness or balance, Dr. Kwan would have elucidated those for the court. Dr. Kwan testified both as a treating physician and a Rule 53 expert (under the Rules of Civil Procedure: R.R.O. 1990. Reg. 194), and I find as a fact that he fulfilled his duty to the court to be fair, objective and nonpartisan.

[72] There are notations in Dr. Kwan’s clinical records leading up to the accident which reference anxiety or stress, 14 in total. In particular, he used the term “chronic anxiety and stress” and “anxious personality” and “anxiety neurosis” in 2008. On March 1, 2008, there is a note that Mr. Kwok was prescribed Ativan because he was anxious. This appears to be a one-time prescription, as it was never repeated. Dr. Kwan was unequivocal in his testimony that his notes have been misinterpreted, and that at no time did Mr. Kwok have any anxiety disorder or personality disorder of significance. His most severe period of stress and anxiety was situational to life events that took place in 2008, but at no time was there anything pathological about his worry or stress. Other than the Ativan, he was never prescribed medication or referred to a specialist. He was fully capable of going to work and school leading up to the collision. In short, Dr. Kwan perceived that Mr. Kwok had no more stress or anxiety than the vast majority of his patients.

[73] The defence also takes the position that balance problems, fatigue and dizziness all pre-dated the accident, and some allowance must be made for these pre-accident conditions in the assessment of all heads of damages. It is asserted that these pre-accident issues would have worsened with age.

[74] With respect to dizziness and balance, Dr. Kwan testified that there were no concerns. Over the course of five years there are five records of such complaints, and one in which there is a report of fainting. Mr. Kwok had complained to Dr. Kwan of a few instances of “dizziness”, which the doctor described as a catch-all phrase for benign transient vertigo, the feeling of being lightheaded when standing quickly. In one of these episodes Mr. Kwok had walked up 16 flights of stairs. There is an episode from 2006 where Mr. Kwok reported that he felt sweaty and fell to the ground. He fell out of bed once in 2009. There is no referral to a specialist to investigate symptoms of dizziness or balance. The records of Dr. Kwan demonstrate that Mr. Kwok often saw his physician for a multitude of minor health issues in addition to his more serious ones, and leave no doubt that Mr. Kwok would have reported symptoms and events involving dizziness or balance to his doctor, who in turn had a practice of recording such complaints, had they occurred more frequently than they did.

[75] The initial imaging studies following the collisions revealed that Mr. Kwok had likely suffered a small stroke, probably months or years before the collisions. This was demonstrated by evidence of dead tissue in the left cerebellar hemisphere, an area at the back, bottom portion of the brain far removed from the peduncle. None of the experts were of the belief that this injury was associated with the collisions. Dr. Cooper, the neuroradiologist who testified for the plaintiff, stated that an injury in that area will usually create balance and movement problems. Dr. Rosso, the neuroradiologist who testified for the Abecassis defendants, also testified that an infarct in the cerebellum can frequently result in patients presenting with balance and coordination issues. However, Dr. Rathbone, the neurologist whose testimony I deem the most reliable due to his extensive experience and expertise, rejected the suggestion that the cerebellar infarct would have caused Mr. Kwok’s dizziness and unsteadiness. He explained that the damage is located to the left side of the cerebellum, not the midline. It is only where the midline is affected that the patient would experience problems with balance. The sides of the cerebellum look after the body’s ability to move and coordinate movements in the limbs on the same side. As Mr. Kwok had no complaints with left-sided coordination prior to the collisions, it is probable that he did not even know that he had had a stroke. Though Dr. Bayley, an equally impressive witness, testified that Mr. Kwok’s dizziness and balance problems before the accident could be attributed to this infarct, he was not specifically asked to comment on whether he had noted the precise location of the old injury on cerebellum, or whether the location might make a difference to his opinion.

[76] Dr. Rathbone attributed Mr. Kwok’s dizziness, unsteadiness and falls to inner ear damage caused by the force of the collisions. He testified that individuals who have rapid head acceleration in one direction or another frequently have a problem with the inner ear, and in his experience about 90% of the patients who get such symptoms acquire them after experiencing forces of the type experienced by Mr. Kwok. The brain becomes confused by the abnormal sensations generated by an illusory sense of rotation coming from the inner ear. The evidence bears out that Mr. Kwok experiences symptoms of dizziness particularly when he is bending over; Dr. Rathbone’s explanation fits with the evidence.

[77] Ultimately, dizziness and poor balance are only two of Mr. Kwok’s multiple post-collision health issues that require him to have a high level of attendant care. Even if I were to accept the argument that Mr. Kwok was somehow compromised by these issues pre-accident, which the evidence does not enable me to do, Mr. Kwok has other difficulties arising from the accident that take greater precedence in the determination of his need for future care.

[78] There are only two notes referencing fatigue. Dr. Kwan testified that one was related to the diagnosis of strep throat, which causes increased sleepiness. The other was in September 2006, when Mr. Kwok was referred to a sleep lab. Although there is no dispute that Mr. Kwok has sleep apnea, a condition that Dr. Kwan explained is very common in the Asian population, there is no evidence that fatigue was interfering with his functioning prior to the collisions. There was not even anecdotal evidence that he napped frequently or had an early bedtime in the years that he lived with Mrs. Kwong. There is insufficient evidence to conclude that fatigue existed as an ongoing medical condition prior to the accident.

[79] In summary, I find the following facts regarding Mr. Kwok’s pre-collision status:

• At the time of the accident Mr. Kwok was working part-time as a dispatcher at Swiss Chalet and was still attending the food safety program;

• He had never been a high income earner and would likely never be, given his age and inability to push himself as hard as he had in the past, following his heart attack. However, he was a person who applied himself and was motivated to work hard;

• No medical issues prevented him from working outright; his only limitation was avoidance of manual labour or physically active duties;

• He had two potentially serious health conditions: high blood pressure and coronary artery disease. He was not highly motivated to change his lifestyle to reduce his weight, improve his diet or undertake a regular exercise program, and therefore these two potential problems were controlled primarily through medication;

• He did not have clinical anxiety or a personality disorder;

• He had episodic, non-concerning bouts of dizziness;

• He had sleep apnea for which he was prescribed a continuous positive airway pressure (CPAP) machine; and

• He was psychologically normal, both cognitively and behaviourally. He had had a number of significant life changes in marital status, job, and finances, but these changes had not been devastating for him. Prior to the accident there remained every indication that he could rebound in each of these areas, and he was making strides to do so.

Injuries Resulting from the Collisions

[80] Mr. Kwok alleges that he sustained a traumatic brain injury and soft tissue injuries to his neck, shoulder and back as a result of the collisions.

[81] Mr. Kwok was transported from the collision scene by ambulance to Sunnybrook Hospital where he was initially kept under observation in the Emergency Department, then admitted for reassessment of his head injury. He was found to have a 6 cm laceration above his ear on the right side, which required stapling. A computed/computerized tomography (CT) scan of the head showed a 7 mm hematoma in the left cerebral peduncle.

[82] On the morning of February 23, 2011, Mr. Kwok was experiencing vertigo, as well as nausea and vomiting. During that day he developed diplopia, left upper extremity weakness, as well as a slight left-sided facial droop. A repeat CT of his head showed a small increase in the cerebral peduncle hemorrhage, but no other change. He was discharged home on February 26, 2011, at which time his nausea and facial droop had begun to resolve and his diplopia had shown some improvement. He had a follow-up appointment at the neurotrauma clinic at Sunnybrook and was admitted to the Acquired Brain Injury Unit at Toronto Rehabilitation Institute between April 5, 2011 and May 31, 2011. Thereafter he attended the Rumsey Centre for outpatient rehabilitation over a period of three months.

[83] Mr. Kwok’s injuries are well-documented throughout the evidence. By the end of the trial, both defendants had considerably changed their initial position with respect to his impairments. In particular, the defendants came to accept that Mr. Kwok needs a high level of ongoing care, and that he will never work again. In the result, I will simply list those injuries and impairments that no longer appear to be in dispute. They cover all spheres - cognitive, behavioral, executive, physical and psychological. What remains in dispute is whether Mr. Kwok’s symptomatology arises from a diffuse axonal injury, or from a psychological or psychiatric reaction to the effects of the collisions generally.

[84] The medical evidence supports the following findings, which I make, with respect to Mr. Kwok’s injuries and impairments, arising from the collisions:

• Traumatic brain injury, moderate to severe

• A 6 cm laceration to the right side of his head, requiring staples

• A 7 mm hematoma within the left cerebral peduncle

• Impaired behavior – such as not wearing outer-clothing in winter, failing to look before walking out into traffic, getting out of the car in the middle of traffic or trying to put on pants while standing at the top of a flight of stairs

• Impaired judgment and decision making – such as wanting to buy a jet pack to fly to the Middle East, opening the door to strangers, grabbing a hot pan, heating oil over maximum heat, leaving pans to burn on the stove, not scanning for cars on streets or in parking lots, easily influenced by others

• Impaired memory – such as forgetting the plot of a television show he has just watched, or confusing it with reality, needing reminders to take his medication, forgetting conversations after a few hours

• Anger – becoming easily agitated, attempting to throw a chair at his wife, crashing through his son’s locked door and threatening to kill his family members, refusing to listen or cooperate

• Depression – now requiring anti-depressant medications and psychiatric management. If left alone he would spend all day sitting; negative outlook

• Anxiety and stress – he is concerned for his future, feels like a prisoner in his own home, is uncertain how to handle novel and unfamiliar circumstances and feels panicked

• Diminished attention span – can no longer pay attention to sports games or entire movies, loses interest in shows or discussions, cannot follow conversations and changes the subject to something unrelated

• Mood and affect muted – typically has a flat affect and does not maintain regular eye contact, irritability, particularly when pushed to do things or denied things, unusual outbursts, and lacking empathy

• Speech difficulty – although previously fluent in English, he now believes that he is more comfortable in his native Cantonese. He has difficulty finding words, and even during his testimony demonstrated long pauses following questions, and a stuttering-type behaviour

• Slow information processing – hesitation before answering questions, needing to have things explained to him slowly. Mr. Wareham testified that he seems a little slower, takes more time to grasp what he is saying, and forgets certain things

• Inability to learn and retain – despite ongoing repetition, he does not retain learning on devices such as a Smartphone and iPad. If any additional steps are required he appears overwhelmed

• Impaired sequencing – he struggles with completing steps, such as creating a shopping list and navigating through a supermarket, requiring assistance and queuing

• Immature personality and impatience – Dr. Kwan describes him as a 56-year-old man trapped in a boy’s mental ability. He has tantrums like a child when he does not get his own way. Mrs. Kwong describes him as a child with little restraint, particularly around food

• Poor insight – when unattended he has left his home despite instructions to the contrary, and left the door unlocked. He wants to have his driver's licence returned and does not understand why he cannot drive

• Inconsistent logic – he has reported that he would buy a jet pack costing $80,000 even if he had only $100,000, and believes that to be a good decision

• Confusion – he becomes disoriented in the grocery store and needs help asking questions, requires help to ensure that he does not double book appointments or forget them, sometimes does not know the day, month or season

• Fatigue and sleep disturbance – he now goes to bed early in the evening, and does not sleep through the night, has nightmares and will talk loudly to himself. He is easily drained and fatigued and usually requires a nap in the afternoon

• Loss of libido – complete disinterest in sexual activity

• Impaired planning and sequencing – left on his own he is unable to remember engrained routines, such as doing laundry on a certain day of the week, cannot plan and cook meals independently, and is unable to complete tasks fully or completely

• Impulsivity – placing orders with telemarketers, speaking with disinhibition, making inappropriate remarks to strangers, being critical of others publicly

• Poor balance and coordination – as attested to by his Rehabilitation Support Worker (RSW) in particular, who takes him to a gym and must supervise him on all equipment. Mr. Wareham testified that Mr. Kwok’s balance does not appear to be “right”. Over time Mr. Wareham has felt that he needs to keep an eye on him and, for example, to walk closest to the curb when they are on a sidewalk so that Mr. Kwok does not step off. Family members have reported that Mr. Kwok has fallen several times

• Slower movements – his gait and movements have slowed, walks with a shuffle

• Dizziness – experienced particularly when he bends forward or kneels, but occurs suddenly and a few times a day

• Vision/Dyplopia – he experiences double vision particularly when he uses the computer, watches TV or is reading

• Obsessive thoughts – is obsessed with food, wants to eat constantly, and would overeat unhealthy food if left to his own preferences

• Delusional thoughts – believes that he can communicate with his ancestors, particularly about lottery numbers to obtain money

• Headaches – frequent headaches, with needle-like pain worsening at night or when laying down, caused by damage to the lesser occipital nerve

• Myofascial pain in neck and right shoulder

• Lumbar myofascial pain

• Post-traumatic stress disorder (PTSD)

[85] The examples presented beside each symptom are by no means an exhaustive list of what Mr. Kwok, and those around him, have had to contend with since the accident. However, they serve to show how markedly impaired he is in every facet.

[86] Mr. Kwok has been subjected to numerous evaluations; all conclude that he is impaired in some way. The following specialists were particularly helpful to the court in understanding the broad array of challenges faced by Mr. Kwok arising from the collisions. Dr. Bayley, a neuro-physiatrist, followed Mr. Kwok from the time of his initial admission to Toronto Rehabilitation Institute through to the fall of 2016. He has diagnosed him with a moderate traumatic brain injury, post-traumatic mood disorder linked to the brain injury, an associated psychosis, myofascial strain of the neck and low back, and rotator cuff injury in his right shoulder from straining caused by his seat belt.

[87] Dr. Gerber, a psychiatrist, diagnosed Mr. Kwok with a cognitive disorder and personality changes due to traumatic brain injury, major depressive disorder and a pain disorder.

[88] Dr. Seyone, a neuropsychologist initially retained by the defence but who testified under summons from plaintiff’s counsel, is of the opinion that Mr. Kwok suffers from a cognitive disorder, mood disorder and panic disorder, all related to the brain injury, plus chronic pain syndrome.

[89] Dr. Rathbone, a neurologist, is of the opinion that Mr. Kwok has suffered a moderate brain injury with resulting physical, cognitive, psychological, mood and behaviour impairments as well as imbalance and visual problems. He also suffers from post-traumatic headaches, and myofascial injuries to the cervical and lumbar spine.

[90] Dr. Sher, a neuropsychologist, completed a thorough assessment and diagnosed Mr. Kwok with moderately severe traumatic brain injury, with secondary personality change and delusional disorder, and major depressive disorder.

[91] Two additional psychologists have diagnosed Mr. Kwok with PTSD, and it has been offered as a provisional diagnosis by other assessors.

Surveillance

[92] Video surveillance evidence was provided by the defence. The initial footage was filmed on September 1, 2011. A male, whose face remained hidden, was shown doing physical tasks in the backyard of the home. This could have been Mr. Kwok, Derrick or someone else. The records from Toronto Rehabilitation Institute indicate that Mr. Kwok attended an outpatient session on that date. It is not possible to conclude that the male is Mr. Kwok.

[93] Further footage was taken on September 22, 2011. It shows a man, who I find is Mr. Kwok, walking independently and at a reasonable pace on streets in his neighbourhood. His gait looks close to normal, and he appears to be navigating across intersections and curbs. On the first date he stops, turns and stares for a lengthy period at a person who had passed him. He enters a bank and is shown standing in line, and then shown standing elsewhere in the bank, looking around. Although the surveillance report states that he used the instant teller machine, there is no evidence of this on the video. He is seen the next day outside of his home collecting, opening and discarding some mail. He is also shown walking and making a telephone call on his cell phone. On a couple of occasions he stops to look behind or around him. He also boards a bus, and transfers to another four minutes later.

[94] The court heard evidence that this coincides with a period of time in which no funding was available for Mr. Kwok, and he had to be left alone. Mrs. Kwong testified that he left the house during this period, and that he went to their regular bank located close to their home. On all but the last occasion, Mrs. Kwong’s Nissan Sentra is shown parked in the driveway. I can draw no conclusions from this latter fact, as she was not examined with respect to how she travels to work each day or why her vehicle may have been in the driveway on those dates.

[95] Given the evidence heard during this trial, it is of no surprise that Mr. Kwok appears to have greater functioning capacity on video taken in the fall of 2011 than what is reported by his healthcare providers and assessors in later years. The testimony of Dr. Rathbone, Dr. Gerber, Dr. Sher and Dr. Bayley indicate that there can be progression in the secondary psychological overlay and psychiatric symptoms caused by the brain injury – emotional and personality changes, depressive symptoms and chronic pain, leading to worsening cognitive and physical deficits. So while the traumatic brain injury itself does not worsen, the secondary effects can, and I find that this has been so in Mr. Kwok’s case. According to Dr. Rathbone, 15% of patients with even mild brain injury never recover. Dr. Dowhaniuk, a neuropsychologist who testified for the defence, did not agree with the foregoing experts with respect to the underlying explanation for Mr. Kwok’s symptoms, but did testify that the records show a progression in behavioural and cognitive deterioration. Dr. Bayley testified that over the last two to three years, Mr. Kwok has presented with profound depression and signs that his brain is not active. The testimony of Paul Wareham, who has seen Mr. Kwok intermittently, underscores these changes; he stated that every time he sees him, he feels that Mr. Kwok gets worse. He seems a little slower, takes more time to grasp what is being said to him, and forgets certain things. Over time he has noticed Mr. Kwok’s balance and coordination becoming worse.

[96] Accordingly, I have no difficulty concluding that the individual shown in the 2011 surveillance footage would present as a very different individual had the videotaping occurred in later years. Further, the videotape does not capture some of the more concerning observations of the teams involved in Mr. Kwok’s rehabilitation, first at the Toronto Rehabilitation Institute and then at the Rumsey Centre. At the latter, the treatment team consisted of a social worker, occupational therapist, physical therapist and speech/language pathologist. In a final reporting letter to Dr. Kwan dated September 8, 2011, in which they listed a number of recommendations for ongoing care, including 24-hour supervision due to decreased memory, judgment and wandering behavior, the treatment team wrote:

Mr. Kwok has had significant difficulties with perseveration on various topics, ranging from personal travel via jet-propelled jumpsuits, to the preparation and consumption of human brain soup, and to an interest in learning mind-control techniques used by suicide bombers so that he can obtain money from others. Because of our concerns last week we referred Mr. Kwok to Sunnybrook Health Sciences Center Emergency Room for a psychiatric assessment.

[97] These types of thought processes, along with the host of objectively observed impairments well-documented in the medical records both before and after the surveillance, cannot be captured on videotape. For all of these reasons, the surveillance is of limited use to the court in deciding issues such as Mr. Kwok’s need for future care.

Diffuse Axonal Injury

[98] As indicated earlier, there is a disagreement between the parties as to whether Mr. Kwok’s symptoms can be explained by the existence of diffuse axonal injury. I find, without hesitation, that the plaintiff has proved on the balance of probabilities that his traumatic brain injury includes diffuse axonal injury, and that this pervasive injury accounts for the range and breadth of his post-accident complaints.

[99] The experts in this case explained that axonal injury occurs when axons are stretched or sheared, and diffuse axonal injury indicates that such stretching or shearing has occurred in widespread areas of the brain.

[100] None of the defence experts opined, with any force or conviction, that Mr. Kwok is not suffering from a diffuse axonal injury. Dr. Rosso, a neuroradiologist, was of the opinion that the injury in the peduncle would explain localized symptomatology such as the left cranial third nerve palsy that affects Mr. Kwok’s vision, but would not explain his more global neurological symptoms. He also stated that all of the problems that Mr. Kwok is having could not be attributed to the peduncle injury. Dr. Rosso was not convinced that Mr. Kwok had diffuse axonal injury, even though he agreed that this would explain his widespread problems, because there is no objective evidence on the imaging even over time. He pointed to the fact that there was no evidence of micro hemorrhages in the usual areas of the brain where diffuse axonal injury usually shows up, and that over time there has been no evidence of the injured axons dying, which would show up as changes in the large white matter bundles in the brain such as the corpus callosum. At the same time, he did acknowledge that diffuse axonal injury is microscopic and it is possible for it to not get picked up on a CT scan or magnetic resonance imaging (MRI).

[101] Dr. Cooper also testified that it is possible to have axonal injury without it showing up on CT and some MRIs. He agreed that there was no radiological evidence to show diffuse axonal injury other than the one bleed in the peduncle. In his opinion, the lateral blow to Mr. Kwok’s head which resulted in the laceration, along with the peduncle hemorrhage, are the indicators of diffuse axonal injury. Dr. Cooper testified that for a hemorrhage to be caused this deeply in the brain, a fairly extensive sideways force is required, the type of force seen to result in diffuse axonal injury. In his view, the peduncle injury can be explained by nothing other than diffuse axonal injury caused by the force of the head blow. Accordingly, he agrees with Dr. Rosso that the small lesion in the peduncle will not cause all of the cognitive problems experienced by Mr. Kwok; rather, they are explained by the diffuse axonal injury.

[102] Dr. Rathbone, Dr. Seyone, and Dr. Bayley, each of whom I found to have acute insight on this case from their extensive experience working with brain injury patients, confirmed that in many cases of diffuse axonal injury there is no abnormality seen on imaging. Stretching or even shearing of the axons cannot be detected. They all agree that the multitude of cognitive and behavioral changes exhibited by Mr. Kwok is entirely consistent with diffuse axonal injury.

[103] There were other defence experts who were unable to agree that diffuse axonal injury explains Mr. Kwok’s current systems. One of these was Dr. Dowhaniuk, a clinical neuropsychologist, who believed that the theory of diffuse axonal injury was speculation, even though he was aware that sometimes such injury does not show up on an MRI. Dr. Dowhaniuk’s experience and knowledge base are not equivalent to specialists such as Dr. Rathbone and Dr. Cooper but, even if it was, I would find his testimony difficult to accept. Essentially, Dr. Dowhaniuk testified that Mr. Kwok’s low scores on the neuropsychological testing, his personality changes and cognitive changes do not make clinical sense in the absence of more extensive brain trauma. His understanding is that Mr. Kwok sustained a mild brain injury. Even with that reasoning, he was unable to consider diffuse axonal injury as a reasonable explanation. This may have been based on his belief that all cognitive difficulties presented by mild brain injury resolve within three months. The neurologists who testified in this case disagree with him on that point, and further, I find as a fact that Mr. Kwok did not sustain a mild brain injury. Further, Dr. Dowhaniuk had only begun to consider the possibility of diffuse axonal injury in the 24 hours prior to giving testimony.

[104] Another such defence expert was Dr. Sawa, a neurologist. However, Dr. Sawa’s credentials and experience were not comparable to that of Dr. Rathbone. It was Dr. Sawa’s opinion that Mr. Kwok sustained a mild complicated traumatic brain injury, but no diffuse axonal injury. He did say that he would defer on this point to a neuroradiologist, but was careful to say that he would defer to Dr. Rosso, who was a defence expert. His testimony led to the conclusion that he had not carefully considered this case; he had not, for example reviewed Dr. Kwan’s records beyond September 2011, even though he agreed that studying ongoing symptoms is necessary when reviewing a brain injury. Also, when summarizing the outpatient records of Toronto Rehabilitation Institute, including Dr. Bayley's records, his report remarkably stated that there is “no specific mention of cognitive abnormalities”. Such a statement is highly inaccurate. When it was put to him that Dr. Rathbone’s opinion of diffuse axonal injury was based on the forces in the collision, the hemorrhage in the midbrain and Mr. Kwok’s subsequent symptomatology, his response was “I think he's made a fair point”. When told of the reasons why Dr. Bayley has diagnosed diffuse axonal injury, his response was “sounds reasonable to me”. I am unable to find his opinion of any use in the circumstances.

[105] In short, none of the defence experts have provided an explanation for Mr. Kwok’s pervasive and long-standing deficits, as an alternative to diffuse axonal injury. On the other hand, that explanation is a reasonable one on the facts of this case.

[106] The fact that the hematoma occurred deep in the midbrain is, I find, of great significance. Dr. Cooper testified that the peduncle bleed stretched into the thalamus as well as the cerebellum. Dr. Rosso testified that an isolated hemorrhage in the peduncle is rare, and given its location, 7 mm can be considered a large amount of bleeding. Dr. Rathbone testified that what is seen on the MRI is the “tip of the iceberg”. These three specialists, as well as Dr. Bayley and Dr. Seyone, are in agreement that rotational forces that would cause the brain to twist relative to the brainstem are one cause of diffuse axonal injury. Typically, substantial acceleration forces are required to create this type of damage in the midbrain. Both of the biomechanical experts who testified for the parties agreed that the forces involved in these collisions were of a nature to result in diffuse axonal injury. They disagreed, however, on which collision was most likely to have caused such an injury, which will be later discussed in more detail.

[107] Dr. Rathbone testified that the symptoms being displayed by Mr. Kwok come from many areas of the brain. It is likely that the circuitry throughout his brain has been affected. For example, damage to the circuits in the frontal lobe will explain his lack of judgment and the emotional changes. The memory difficulties and inability to concentrate can be attributed to a disruption in the circuitry that runs from front to back. Dr. Rathbone unequivocally stated that with diffuse axonal injury, one sees exactly the kind of picture presented by Mr. Kwok. Dr. Bayley’s testimony repeats the same message; he also testified that the notes of those who observed Mr. Kwok throughout his hospitalization, and his initial follow-up with Dr. Kwan, consistently depict an individual who is suffering from a brain injury involving diffuse axonal injury.

[108] Dr. Kwan’s initial notes in the weeks following the collision describe the wide variety of symptoms that continue to this day, according to the records and the testimony of those physicians who I find to have been objective in their assessment of Mr. Kwok: altered personality; unable to recall day and date; high level of fatigue; more clumsy overall; less spontaneous in speech; constant frown on face; random thoughts; physically sluggish; judgment compromised; activities of daily living take more time; less alert; more confused; unable to execute simple tasks; unable to process information and instructions; unable to retain information; mood and affect muted, sad and quiet; delayed response to questions; and lack of initiative.

[109] In summary, the rotational forces involved in the collisions, the unusual and deep hemorrhage in the midbrain, the global difficulties that Mr. Kwok displayed immediately after the accident, which did not pre-exist, and the fact that these difficulties have not resolved, all lead the court to the conclusion that Mr. Kwok’s moderate to severe brain injury is one that involves diffuse axonal injury.

Psychological Validity Testing

[110] Counsel for the Abecassis defendants submitted that Mr. Kwok’s consistent failure on validity testing shows that, consciously or not, he tends to exaggerate his symptomatology. Counsel submitted that “it is entirely reasonable to import the failed validity tests to his complaints in general and his claimed disability. He is not as sick as he may seem. The surveillance showing him travelling alone by bus, changing buses and accessing a bank machine cannot be ignored”. As I understand these submissions, the defence suggests that a conclusion should be drawn from the validity testing that Mr. Kwok’s impairments are not as severe as have been diagnosed by the vast majority of the medical and rehabilitation community that has come into contact with him over the years.

[111] I am not able to accept this submission, although acknowledge that Mr. Kwok’s psychological testing has been erratic. Even the defendants’ own clinical neuropsychologist, Dr. Dowhaniuk, explained that failed validity testing indicates that Mr. Kwok did not perform to the best of his ability, but the failure of the validity testing does not mean that he has no brain injury. Dr. Sher, a neuropsychologist who testified for the plaintiff, confirmed that the results of the neuropsychological tests administered to Mr. Kwok cannot be validly used to determine the presence and scope of an acquired brain injury. For example, he described that Mr. Kwok’s scores on the Test of Memory Malingering (TOMM) test did not fall below 17, which is the score at and below which the testers can determine that someone is deliberately attempting to skew the outcome. Mr. Kwok’s score was in the range of chance or slightly better. Further, it was significant to him that Mr. Kwok passed the other performance validity test (the Rey-15), indicating that he may not be deliberately attempting to appear more impaired than he is. His results on a TOMM administered by a Dr. Dowhaniuk also surpassed the level of chance. Dr. Sher concluded that he saw no conclusive evidence that Mr. Kwok was deliberately or intentionally picking the wrong answers on the TOMM. He believes that there is some other clinical explanation for Mr. Kwok’s poor score. He explained the concern about drawing conclusions of intentionality on the part of Mr. Kwok to perform poorly from the results of the tests administered to him.

[112] In reports filed as exhibits in this trial, Dr. Chute, a neuropsychologist, gave the opinion in an initial report dated August 3, 2012 that Mr. Kwok’s primary impairment seems to be a “late developing psychological self-limitation”, and that he had not suffered a permanent neuropsychological impairment that was validly measurable. He seemed to reject the notion that Mr. Kwok has problems with his memory, and suggested that emotional and behavioral impairments to some extent antedate the accident. He also stated that issues such as suicidal ideation, anger and aggression antedate the accident. As previously reviewed in this judgment, those conclusions are simply not supported by the evidence. Dr. Chute opines that psychological factors such as “catastrophizing” may be at work in the case of Mr. Kwok. In his final report dated February 27, 2014, he concluded that Mr. Kwok appears to be functioning at premorbid neurocognitive levels, where such can be determined. He also concluded that Mr. Kwok had “safety awareness”. Although Dr. Chute appears to have reached his opinions on the basis of document review as well as interview and testing of Mr. Kwok, he does not list Dr. Kwan’s notes and records among those documents. It is not clear how many of Dr. Kwan’s notes were in his possession. In my view, Dr. Kwan’s notes would be invaluable for any professional attempting to understand Mr. Kwok’s pre-and post-accident condition. In his first report he does refer to some of Dr. Kwan’s notes, however, and on page 12 refers to them as showing a post-collision pattern “that seems somewhat unusual in strictly neuropsychological terms, including deterioration in cognition and the appearance of psychological symptoms some months after the accident of February 22, 2011. CT scans covering the period show resolved intracranial conditions so the continued deterioration might best be interpreted as a form of psychological reaction”. [Emphasis added.] Nowhere in his reports does Dr. Chute appear to consider diffuse axonal injury as an explanation for Mr. Kwok’s symptoms, and his characterization of Mr. Kwok’s symptoms as being “somewhat unusual” seems to grossly understate the classic symptoms of brain injury shown by Mr. Kwok right from his first appointment with Dr. Kwan following the collisions.

[113] Another assessment report entered into evidence by the defence was completed by Dr. Goodman, a psychologist. Dr. Goodman concluded that the results of the psychological tests administered to Mr. Kwok were marked by inconsistent responding, negative self-presentation, inadequate effort, and symptom exaggeration. The possibilities of a deliberate distortion of the clinical picture and malingering were raised. Dr. Goodman concluded that, based on the data he gathered, there was no valid and compelling evidence that Mr. Kwok had sustained a catastrophic psychological impairment as a result of the motor vehicle collisions.

[114] In my view, Mr. Kwok’s case demonstrates the limitations of psychometric testing, as testified to by Dr. Sher, and how the results can be misinterpreted. Dr. Sher explained that lack of engagement and being unable to sustain attention on the task will affect the results, as will impatience, low frustration tolerance and fatigue. Dr. Gerber also testified that Mr. Kwok was not motivated to do the testing, so did not give it much effort. Being fed up and thinking of the exercise as unimportant are likely the main reasons that the testing resulted in invalid scores. Dr. Gerber questions whether this is an effect of tiredness, pain, language, or the timing during the interview at which these tests are administered.

[115] Ultimately, I find that the psychological testing is inconclusive in this case, and pales in significance when compared to the much larger and more compelling body of information that comes by direct observation from Mr. Kwok’s family, case manager, occupational therapists, PSW, RSWs and treating physicians such as Dr. Kwan and Dr. Bayley.

[116] It was also submitted that Mr. Kwok is not trying to recover from his damages. Given that it has not been concluded by any of the experts that Mr. Kwok is malingering, it is difficult to understand the basis of this submission. Mr. Kwok’s current RSW, Mr. Leocadio, testified that Mr. Kwok has accepted his rehabilitation and wants to get better. He stated that Mr. Kwok takes direction well and the two of them have a good rapport. A substitute RSW, Mr. Brackley, had 11 sessions with Mr. Kwok earlier in 2016 and testified that when he took Mr. Kwok to the gym, he appeared eager to go and sometimes attempted to undertake activities that were physically beyond his abilities. The picture presented by those individuals who are involved with Mr. Kwok on a regular basis is that he is enormously frustrated by his situation, and feels trapped in his home. None of this evidence describes an individual who is deliberately frustrating his own recovery.

Apportioning Damages

[117] Counsel for the Abecassis defendants submits that, to the extent possible, there should be a determination of which of Mr. Kwok’s injuries was caused in each collision. As held in Athey v Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 24, if such an exercise is possible, each defendant will only be liable for the damage inflicted by the collision for which he is responsible.

[118] Counsel seeks to have four accident-related injuries attributed to the first two collisions only: PTSD, chronic neck and back pain, headaches, and the traumatic brain injury, which includes the diffuse axonal injury now that this court has made a finding as to its existence.

[119] Dr. Sher testified that PTSD is a psychological disorder that can occur even without physical trauma. It can occur when one is observing a life-threatening situation or situation where one fears harm to others. Such fear could arise from the motor vehicle accident and the experience of crashing into the guardrail. Dr. Rathbone testified that research shows that it is possible to develop PTSD from a traumatic event even where the individual has no memory of that event.

[120] Mr. Kwok told Officer Otchere that he had been struck by a minivan after hitting the guardrail. While I accept that the experience of losing control and crashing into the concrete guardrail would be extremely traumatic, so too would be the experience of seeing and feeling a car moving directly into one’s path. It is equally possible for Mr. Kwok to have had the latter experience, given my finding that he was conscious and making the 911 phone call at the time of the third collision. Any feelings of loss of control, emotional distress and anxiety associated with PTSD are attributable to any of the collisions, or a combination thereof.

[121] With respect to the chronic neck and back pain, and headaches, no biomechanical evidence was led specifically commenting on which of the accidents may have caused the damage to the cervical and lumbar spine, or to the occipital nerve. The defendants rely on the testimony of Dr. Rathbone, who testified that an extension of the neck can cause damage to the facet joints between the neck vertebrae, producing an inflammatory process accompanied by a secondary muscle contraction to protect the neck from moving backwards. It is also associated with the pain from the occipital nerve, as the muscular contractions tend to clench down on that nerve where it enters the spine. He also testified that the occipital nerve is frequently damaged when one has a rapid neck movement like in whiplash. It was his opinion that the headaches are caused by the motor vehicle collision, because the neck was moving violently and the headaches came on immediately following the collision. He also testified that the low back pain that Mr. Kwok has experienced since the motor vehicle accident is commonly seen after collisions, but the cause is not as clear as with neck injuries.

[122] Dr. Rathbone was also clear that he had not done any calculation of the forces, and without knowing them was not able to provide an opinion whether an outcome was possible. Although he was speaking specifically with respect to the forces that may have caused Mr. Kwok’s head injury, he stated that he would defer to a biomechanical expert. He was not asked to comment on whether the anticipated movement of Mr. Kwok’s body in the third impact could have caused the spinal injuries in question.

[123] Both biomechanical experts agreed that the first collision would involve a forward flexion-extension movement of Mr. Kwok’s body, of the type that Dr. Rathbone described could cause the facet joint and occipital nerve injuries, resultant neck pain and headaches. In the third collision, his body and head were thrown to the right. Mr. Kwok was found lying across the passenger seat when he was first seen by Mr. Abecassis. Dr. Sigmund, who testified for the plaintiff, stated that this indicated that he had come out of his seat belt. Dr. Sigmund was of the opinion that the laceration to Mr. Kwok’s skull and subgaleal hematoma occurred as a result of Mr. Kwok’s head hitting the intruded passenger door as a result of the third collision. Dr. Gooyers, who testified for the Abecassis defendants, was of the opinion that the laceration to Mr. Kwok skull and subgaleal hematoma occurred either in the second or the third collision, as a result of Mr. Kwok’s head hitting the passenger seat back or headrest. The first collision involved slightly more force than the third collision, with maximum speed changes calculated at a maximum of 29 and 26 km/h, respectively. While I can accept that the mechanism of the first collision most likely caused the spinal injuries complained of, I cannot eliminate the third impact from causing or contributing to those same in injuries. Substantial force was involved in each, and it is more probable than not that the direct blow that caused the laceration, whether against the passenger seat or door, involved a sideways force against the head and would cause rapid movement on the neck. The initial acceleration force to the right in the third collision would have moved Mr. Kwok’s head quickly to the right; this would likely have harmed an already injured neck and/or back. I find it impossible to attribute these injuries solely to the collisions caused by the unidentified driver.

[124] Then there is the brain injury. As initially indicated, the biomechanical experts first opined that the hemorrhage in the peduncle was associated with the direct, visible blow to the head, with Dr. Sigmund determining that this most likely occurred in the third collision, and Dr. Gooyers being unable to determine whether it occurred in the second or the third collision. When the brain injury query began to focus more sharply on the possible existence of diffuse axonal injury, these experts were asked whether their opinion changed with respect to the origin of this injury. Dr. Sigmund remained of the opinion that the forces in the third collision were the most likely cause of the diffuse axonal injury. Dr. Gooyers then opined that the angular acceleration in collision 1 was the highest of all three collisions, and that therefore the first impact was the most likely cause of diffuse axonal injury.

[125] I have reviewed their testimony in great detail and considered the assumptions and studies which brought these two experts to their divergent opinions. In the final analysis, Dr. Sigmund believed that collision 3 had the highest chance of causing diffuse axonal injury because, in his view, it involved impact with the door. This substantially increased the chance of sustaining diffuse axonal injury given the angular accelerations involved. However, he was unequivocal in stating that all three collisions may have contributed to the axonal injuries in this case.

[126] Dr. Gooyers would not make that concession, primarily because he was unable to accept any possibility that Mr. Kwok’s head struck the door in collision 3. He did agree, however, that if Mr. Kwok’s head did strike the door, the result would be a higher angular acceleration than that which he had calculated for the first collision. From this I infer that he agrees that, if it is accepted by the court that Mr. Kwok’s head collided with the door, diffuse axonal injury could also result from collision 3. What is difficult to reconcile about Dr. Gooyer’s testimony is that he initially determined that the forces involved in collisions 2 and 3 were severe enough to have resulted in the laceration and the subgaleal hematoma when, in his opinion, Mr. Kwok’s head struck the passenger seat, yet when considering the diffuse axonal injury he stated that there was not sufficient velocity in collision 2 to create diffuse axonal injury, and in collision 3, he reasoned that the seatback would have attenuated the rotational acceleration working on Mr. Kwok’s brain. He was unable to come up with a measure of the angular acceleration in collision 3.

[127] After considering their respective opinions, I find that there are problematic assumptions and variables involved in the evidence presented by each of these experts, making it impossible to determine whether the diffuse axonal injury occurred solely from one of the collisions. All of their calculations regarding collision 3 assume that the plaintiff was starting from an upright position prior to the third collision; while a reasonable assumption, it is not the only possibility, and if incorrect renders their calculations totally unreliable. The studies on which they relied do not use exactly the same angles involved in the collisions involving Mr. Kwok. For all collisions, it is unknown whether the seatbelt pretensor, with which the plaintiff’s vehicle was equipped, was deployed. Even though Dr. Sigmund factored that into his calculations, its deployment is an unknown, in addition to the fact that the seatbelt seems to have come off of Mr. Kwok in the third collision. Dr. Gooyers did not provide all of the relevant data when calculating the angular acceleration in the first collision. Dr. Sigmund relied on information from the National Automotive Sampling System which told him that it is a rare occurrence to have diffuse axonal injuries in crashes where there is no evidence of head contact. I accept Dr. Gooyers’ evidence that these statistics come from initial reports of injuries without follow-up and, as Mr. Kwok’s own case demonstrates, initial assessments such as a Glasgow Coma Scale score sometimes present a misleading picture of outcome.

[128] Drs. Seyone, Rathbone and Bayley confirmed that diffuse axonal injury results from rotational forces that cause the brain to move or twist suddenly, stretching or shearing the insulating sheaths around the axons. Just as Dr. Rathbone and Dr. Sigmund opined, Dr. Bayley also stated that all three impacts could have contributed to Mr. Kwok’s injuries. Regardless of which impact caused the subgaleal hemotoma, he was correct that rotational and/or lateral forces were involved in each impact. Lateral accelerations also place an individual at risk of axon damage.

[129] Ultimately, I find that the movement and forces involved in collisions 1 and 3 were of the type that could cause diffuse axonal injury, and it is impractical to attempt to attribute the injury to one over the other. Common sense suggests that the laceration did occur from striking a hard surface such as the interior of the door, which was pushed inward, especially since Mr. Kwok was found slumped sideways over that seat. Less likely, but still possible, it occurred from striking a hard edge of the seatback. At the end of the day it makes no difference, as I find on a balance of probabilities that both collisions 1 and 3 resulted in/contributed to the diffuse axonal injury found in Mr. Kwok. The defendants are concurrent tortfeasors who must share the damages jointly and severally: Lawson v. Viersen, 2012 ONCA 25, 108 O.R. (3d) 771, at para. 35; Sale v. O’Grady’s Restaurant, 2011 ONSC 2437, at para. 32. This is subject to any exemption that may come into play arising from coverage issues discussed at the end of this judgment.

The Law Affecting Damage Awards

[130] While the plaintiff must prove past facts on a balance of probabilities, future loss or damage must only be shown to have a reasonable chance of occurring. Once it is shown that there is a reasonable chance of suffering a loss or damage in the future, the court must then assess the value of that chance, and future contingencies are regarded as factors to increase or decrease the award: Schrump et al. v. Koot et al. (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.), at pp. 339-340. This degree of risk has also been described as a “real and substantial risk”: Walker v. Ritchie (2005), 2005 CanLII 13776 (ON CA), 31 C.C.L.T. (3d) 205 (Ont. C.A.), at para. 30.

[131] The degree of possibility of such future loss must be reflected in the award. Compensation for future loss is not an all or nothing proposition, but rather depends on the degree of risk established: Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.), at p. 634.

[132] An award must be moderate, fair to both parties, and not determined on the basis of sympathy or compassion. In determining what is reasonable, it is not cost that rules the day, but what is reasonable for the individual plaintiff whose needs are being assessed by the court: Andrews v. Grand and Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at pp. 242, 260-261.

[133] While the award must be fair to both parties, the ability of the defendant to pay is not a relevant consideration. The focus must be on the injuries of the innocent party. Fairness to the defendants is achieved by assuring that the claims raised against them are legitimate and justifiable: Andrews v. Grand and Toy Alberta Ltd., at pp. 243-244.

[134] The paramount concern of the courts when awarding damages for personal injury should be to ensure that there will be adequate future care: Andrews v. Grand and Toy Alberta Ltd., at p. 261.

General Damage Award

[135] Each award for pain, suffering and loss of enjoyment of life must be custom-made for each individual plaintiff. Although it is unrealistic to give complete compensation, the court must try to award Mr. Kwok an amount that is fair and reasonable and bears some reasonable relation to the losses and injuries claimed, as shown in the evidence.

[136] Given the preceding findings made with respect to Mr. Kwok’s collision-related injuries and impairments, the fact that they are permanent and unlikely to improve, I conclude that Mr. Kwok has suffered catastrophic losses. Virtually every aspect of his life has been negatively impacted.

[137] In addition to living with pain and his cognitive, psychological and behavioural changes, Mr. Kwok has lost his ability to work, leisure activities, friendships and freedom to go where he wants to go and when. His relationship with his son has been badly strained. His marriage is over. Mr. Wareham told the court that Mr. Kwok has cried a couple of times, his energy level is low, and “he looks like his life is gone”.

[138] Taking into account the cap on these damages, I assess his non-pecuniary damages for pain, suffering, and loss of enjoyment of life in the amount of $290,000.

Retirement Age

[139] Having concluded that Mr. Kwok was willing to work, was employed at the time of the accident, and was on his way to completing a new course of training, I find that Mr. Kwok would have remained in the workforce had the accident not occurred.

[140] Mr. Gary Principe has been a chartered professional accountant since 2013. He is an expert in the quantification of economic damages. Mr. Principe was called by the plaintiff. He testified that average retirement ages in Ontario have been increasing, to age 64.4 for those employed in the private sector, and age 67.4 for those who are self-employed.

[141] Dr. Scherer, who is a vocational and rehabilitation psychologist, was the only other expert to testify about Mr. Kwok’s potential retirement age. Had the accident not occurred, it was his opinion that Mr. Kwok was likely to have continued to work to normal retirement age and, if his health allowed, perhaps beyond that. This was because Dr. Scherer found that Mr. Kwok had no impediments to full-time work other than some physical restrictions before the accident, and because he had a good work ethic in keeping with a cultural emphasis on its value. As previously stated, Mr. Kwok himself testified that he wanted to work beyond age 65 if his health allowed. Derrick testified that his father had no plans to retire.

[142] I find that two contingencies should be taken into account in considering Mr. Kwok’s anticipated retirement age. The first is his health. As previously stated, there is reason to be somewhat pessimistic about Mr. Kwok’s coronary health and prognosis. Dr. Kwan was very clear that Mr. Kwok had room for improvement in taking care of his health. There is a reasonable possibility that this, perhaps along with his sleep apnea, would cause him to slow down with age.

[143] The second contingency relates to his marital status. I find that one of two things would have happened: Mr. Kwok and his wife would have reconciled or they would have divorced. In her testimony, Mrs. Kwong indicated that no decisions had been made in this regard, but her reference to divorce leads to the conclusion that they were unlikely to have remained in a separated state for the remainder of their lives. Accordingly, although Mr. Kwok had no retirement savings of his own, he would have had the benefit of those assets belonging to Mrs. Kwong. He either would have shared in those through an equalization payment on divorce, perhaps along with a spousal support payment given the discrepancies in their income, or he would have shared in those through their continued partnership. I have little evidence about Mrs. Kwong’s financial circumstances other than that she owns the matrimonial home located in Willowdale, and that she has been employed as a caseworker for Ontario Works for the past 25 years. It is reasonable to conclude that she has a pension through that employment, and there is evidence that she has health care coverage.

[144] These findings with respect to Mr. Kwok’s health and marital status lead me to the conclusion that there is a high probability that Mr. Kwok would not have worked beyond age 65. However, given his own work ethic and the central role that it had played throughout most of his life, I find that it is reasonable to conclude that he would have worked until that age had the accident not occurred.

Life Expectancy

[145] Mr. Kwok has a reduced life expectancy that will impact on the assessment of his pecuniary damages.

[146] Two experts testified with respect to life expectancy. Dr. Lawrence Segel, who is a medical doctor and currently Chief Medical Director and Assistant Vice-President of Medical Research and Development at Manulife Financial, with 30 years of insurance underwriting experience, was called by the defence as an expert in life expectancy. Gary Principe was called by the plaintiff. Mr. Principe has 25 years’ experience as a chartered accountant and has expertise in the quantification of economic damages and estimation of life expectancy in personal injury cases. Both professionals have given expert opinion testimony in their fields of expertise in the Superior Court of Justice on multiple occasions. Both of these witnesses provided fair, balanced and non-partisan testimony to the court.

[147] Both experts agreed that the average life expectancy for all 56-year-old males in Ontario is upwards of 26 years. Dr. Segel used the 2009-2011 Statistics Canada Life Tables which provide a life expectancy of 26.45 years. Mr. Principe used the updated 2010-2012 Statistics Canada Life Tables which provide a life expectancy of 26.3 years.

[148] The position urged upon the court by the defence was that, on the basis of Dr. Segel’s testimony, Mr. Kwok has 300% of the standard mortality rating for males of his age. This equates to a reduction of 9 years from the average life expectancy, such that Mr. Kwok would be expected to live to age 73.3. To arrive at that mortality figure, he applied debits of +100 and +125 for Mr. Kwok’s traumatic brain injury and coronary artery disease, respectively, and applied a credit of – 25 for the fact that he is a non-smoker.

[149] The position urged upon the court by the plaintiff is that a 200% mortality should be applied, meaning a remaining life expectancy of 20.3 years. Mr. Principe took the position that Dr. Segel’s remaining life expectancy was incorrect because he failed to take into account trends in increasing life expectancy.

[150] As between the two approaches, I generally accept that with his medical background and actuarial skill, Dr. Segel has the greater expertise in this area. I accept that Mr. Principe’s assertion of increasing trends should be approached with caution in that it uses life expectancy rates at birth, as opposed to males of Mr. Kwok’s age. Further, the past indicates that Mr. Principe’s predictions for future increases in life expectancy are too optimistic; in the decade between 2003 and 2012, life expectancy increased from only 27.1 to 28 years. I also accept Dr. Segel’s evidence that the obesity epidemic and increased alcohol and drug abuse may negatively impact on life expectancy, having the potential to reverse upward trends.

[151] In terms of the mortality debit applied by Dr. Segel for the coronary artery disease, I find that it is supportable. Even though the evidence revealed that the studies on which he relied were more than a decade old, and Mr. Kwok is likely to have the advantage of improved medical knowledge in this area, Dr. Segel explained that the issue in Mr. Kwok’s case is his early age of onset. He testified that it is a very aggressive disease when it develops in a person in their forties, as it did for Mr. Kwok. In addition to that is the fact that Mr. Kwok has not had a consistent or aggressive change in the lifestyle factors that affect heart health over the decade since his bypass, and is unlikely to adopt them now given his various impairments. He has lived a primarily sedentary life since the collisions.

[152] In terms of the mortality debit applied by Dr. Segel in relation to Mr. Kwok’s brain injury, there is reason for reservation. Dr. Segel’s starting premise is correct, which is that Mr. Kwok suffered a brain injury of moderate severity. The mortality for traumatic brain injury takes into account the severity of functional impairment, because of the risks created by, for example, falls, malnutrition and walking out into traffic. In reaching his mortality debit of +100, Dr. Segel reviewed a number of studies providing mortality data on individuals with traumatic brain injury that were generated by larger hospitals in the U.S. or United Kingdom. The individuals were discharged and received follow-up care by those institutions. He was unable to confirm in his testimony whether the individuals studied received one-on-one supervision when they were no longer hospitalized. He agreed that supervision would reduce risk, but not eliminate it altogether. Dr. Segel’s opinion regarding Mr. Kwok’s life expectancy would not change even if Mr. Kwok receives 24 hour per day care. It was clear from his testimony that mortality prediction is not an exact science; there is variation depending on the severity of impairment, and a degree of subjectivity is involved. While the court respects Dr. Segel’s experience in his field, given the high degree of supervision that will be provided to Mr. Kwok by this judgment, I am unwilling to assign what amounts to a reduced life expectancy of three years on the basis of the brain injury.

[153] Taking these findings and conclusions into account, the debit assigned to the brain injury will be reduced to +50, leading to an overall mortality for Mr. Kwok of 250%, or 7.6 years. This would reduce Mr. Kwok’s life expectancy to age 75 (rounded up) at the commencement of trial. Exhibit 69 indicates that the present value factor for this adjusted life expectancy is 17.8449.

Loss of Income

[154] I have previously made findings about Mr. Kwok’s pre-collision educational and employment history, and specifically, that he would have completed his education and pursued employment in the field of food safety and quality inspection. Nonetheless, it is reasonable to take into account that he would have been trying to begin this career in his early 50s, he had no other technical skills, and his prior work history contained low-paid jobs. There is evidence that he was comfortable with computer technology, as he taught these skills to his son. Although it was submitted that he did not speak English well, the evidence does not suggest that this is a reasonable conclusion. Mr. Kwok had been in Canada for over 30 years by the time of the collisions. His responses to Officer Otchere contain no suggestion that he was not fluent in English, he was able to communicate with others in English, as shown by his friendship with Mr. Wareham and his employment in a managerial position, and his employment insurance forms were completed in English in 2006 and 2007.

[155] Mr. Kwok’s income in the five years preceding the collisions is not in dispute.

[156] In 2006 he had total income of $10,812, comprised of T4 earnings in the amount of $8,000, employment insurance in the amount of $2,640, and a small amount of interest income. In 2006, he was working at Pizza Pizza, had his heart attack at the end of June, and received employment insurance for the rest of the year.

[157] In 2007 he had total income of $11,000, comprised entirely of T4 earnings. In 2007, he worked at Pizza Pizza after his recovery, starting at the end of July.

[158] In 2008, the year he claimed bankruptcy, his pre-bankruptcy T4 earnings totalled $16,900. In 2008, he was working at Pizza Pizza until November 21.

[159] In 2009, when he was receiving employment insurance and going to school, his total income was $16,534, comprised entirely of employment insurance.

[160] In 2010, when he was again receiving employment insurance and going to school, his total income was $15,667, comprised of employment insurance in the amount of $14,392 and taxable capital gains.

[161] In 2011, his T4 earnings prior to the accident were $1,552.

[162] Dr. Scherer was the only vocational expert to testify. He concluded that at the time of the accident Mr. Kwok had demonstrated some entrepreneurial skills, such that he could coordinate and manage people and handle a variety of jobs. Other than restrictions with respect to heavy lifting and hard physical work, he had no other limitations. Mr. Kwok had reported to Dr. Scherer that he was earning $16 per hour at Swiss Chalet, but no objective documentation supports that figure. I accept that figure however; as Dr. Chan testified, Mr. Kwok seems to have retained more of a facility for numbers than for other skills, and Mr. Kwok’s testimony confirmed that to some extent. Although Dr. Scherer agreed that Mr. Kwok would have greater difficulty in obtaining and maintaining employment than the average worker of comparable age, he was of the opinion that Mr. Kwok could obtain a full-time position in the $12-$16 per hour range.

[163] At the time Dr. Scherer saw Mr. Kwok, he concluded that the plaintiff was likely not trainable, and wholly unemployable. By the end of trial, this conclusion was no longer being challenged by the defence.

[164] With respect to past loss of earnings, I have indicated my misgivings about using Mr. Kwok’s three weeks of 2011 earnings as a basis for extrapolating an annualized income of $25,883, which was Mr. Principe’s starting point. There is no information about what hours he worked in the first three weeks of 2011. I find that number to be high, at least for 2011. But it would likewise not be reasonable to use the average of his 5 year earnings before the collisions, when a host of circumstances unfolded that were no longer applicable in 2011. Another misgiving is that his T4 earnings in 2006 and 2007 from Pizza Pizza are suspect; such round numbers as $8,000 and $11,000 suggest the possibility of additional cash income. Nonetheless, his pay rate at Swiss Chalet appears to be higher than anything he had earned in the past. With such limited information, it is difficult to do justice to the matter, but ultimately I find it is unreasonable to expect his earnings for 2011 to be higher than his last year of earnings in 2008, particularly since he reports only working part-time at Swiss Chalet.

[165] I do accept that Mr. Kwok would have completed his schooling in 2011, but it remains unknown whether he would have had success finding a job in the field he was studying. For that reason, it would be erroneous to consider a calculation of income loss that would place Mr. Kwok in the earning range for workers who have completed a college or diploma course in that industry on a full time basis, which ranges from $37,655 to $69,749. Having considered the options presented by Mr. Principe for average lifetime earnings of Ontario males, I agree that it is reasonable to expect Mr. Kwok to have come to generate income in line with the average of Other Workers with a high school education, working on a part-time basis, until his retirement at age 65. Using the Other Worker statistics provides earnings that include significant negative labor force contingencies for part-time employment, unemployment, short term illness and short-term absence. This generates average earnings of $24,601.

[166] Appendix 1, Scenario II presented by Mr. Principe estimates Mr. Kwok’s earnings from March 1, 2011 to December 31, 2011 to be $22,192, based on the annualized employment income of $25,883. That estimate gradually increased every year until reaching the average earnings of All Workers of $24,601. Since the basis for the annual increase calculation is not clear to me, I have used broad estimates. In the event that all parties agree to obtain an exact calculation of past income loss from Mr. Principe using alternative amounts for 2012 to 2015 inclusive, they have leave from the court to do so.

[167] Taking all of the above into account, I have reduced Mr. Principe’s starting point for estimated 2011 income, factored in that it is more probable than not that Mr. Kwok would have some difficulty in reaching the All Workers average in the following years, but, as Mr. Principe has done, accepted that at least by the date of trial he would have reached that level of earning. The revised figure for loss of income would therefore be:

Period Estimated Income 70%

March 1, 2011 to December 31, 2011 $14,083 $9,858

January 1, 2012 to December 31, 2012 $17,500 $12,250

January 1, 2013 to December 31, 2013 $19,250 $13,475

January 1, 2014 to December 31, 2014 $20,750 $14,525

January 1, 2015 to December 31, 2015 $22,500 $15,750

January 1, 2016 to November 16, 2016 $24,601 $17,220

[168] Seventy per cent of the estimated past income to November 16, 2016 totals $83,078; deducting the income replacement benefits received of $77,899 to date of trial leaves a past loss of income of $5,179.

[169] Given the above findings, Appendix II – Scenario II prepared by Mr. Principe is the one accepted by the court, resulting in future loss of income in the amount of $210,200.

Cost of Future Care

[170] Having concluded that there is a real and substantial possibility, as opposed to a speculative possibility, that Mr. Kwok’s deficits will continue and require the items and services testified to by Ms. Lipkus and the myriad of other care providers who have testified on his behalf, I have considered what items are needed, for how long, and their associated cost.

[171] In reaching my conclusions I have borne in mind that Mr. Kwok cannot come back to court after this action is over, and that the award must be reasonable and fair to both sides.

[172] Two future care cost experts testified at this trial. Both are Canadian Certified Life Care Planners and have had long careers as occupational therapists. Unfortunately, I find that I can place absolutely no reliance on the evidence of one. Her recommendations were of no assistance to the court because she:

• Presented a scenario for the court’s consideration in which it was assumed that Mr. Kwok had no accident-related neurocognitive impairments, recommending that his needs could be met for $192 per month. She then testified that it was not a reasonable scenario when she authored it, even though she knew her recommendations would be relied on in court;

• Failed to give adequate consideration to the opinions of the preponderance of physicians recommending full-time attendant care, and their reasons for so recommending;

• Allowed the outcome of failed validity testing to overwhelm her opinions, and/or questioned the assessments of some physicians who had not performed validity testing, even when such testing is not within their normal scope of practice;

• Conceded that she would have had a better understanding of Mr. Kwok’s level of functioning if she had spoken with his PSW or RSW, which she had not done;

• Mischaracterized the level of independence and cognitive function reported in a progress note completed by another occupational therapist in April 2011; and

• Presented long-term care options to the court that were inadequately researched, some of which were inappropriate. Both of these last points were conceded during her cross-examination, where she testified that she did not understand the amount of reliance that could be placed on her recommendations by a court.

[173] In contrast, Ellen Lipkus, who testified on behalf of the plaintiff, provided testimony that I find to have been fair and balanced. Although it was submitted that she had a bias because she is employed by the same company as Mr. Kwok’s case manager, her testimony provides no reason to suspect partisanship. At times she attempted to be too fiscally conservative in her recommendations, and the information that she provided to the court was well researched. Each recommendation has been supported by credible and reliable physicians who have had the opportunity of long-term observation of Mr. Kwok, primarily Dr. Bayley and Dr. Kwan. In its entirety, Ms. Lipkus’ evidence is preferred over the testimony of the defence expert.

[174] Having reviewed the recommendations of the treating physicians and assessors, along with the evidence in this case regarding Mr. Kwok’s needs for ongoing care, I find that the following services and items are appropriate and reasonable:

Case Management Services

[175] Mr. Kwok has had a case manager since December 2014, but a great deal of the coordination of his care has been taken on by Mrs. Kwong since the collisions. She will no longer be required to assume that responsibility. Mr. Kwok will have ongoing needs for co-ordination among a number of care providers, and for someone to attend appointments with him and follow up on referrals and treatments. Ms. Lipkus recommended 10-15 hours annually, but there have been times when a far greater number of hours have been required, such as when a change in accomodation was being investigated. Following judgment, this individual will be tasked with the job of locating accommodation for Mr. Kwok, arranging his move, co-ordinating with the agency, and implementing the care provisions afforded by this judgment. There will also be occasions for greater involvement when there is a turnover in the individual attendant caregiver. Accordingly, erring on the side of the higher end, I find that 15 hours per year, for life, at an average rate of $112.50, is appropriate and reasonable.

Attendant Care

[176] This was by far the most severely contested future cost. Through the course of the trial the parties ultimately reached consensus that the most reasonable model for Mr. Kwok is for him to have a live-in caregiver hired through an agency. The position of the defendants continues to be that Mr. Kwok does not require care during sleeping hours, which is not consistent with the costing analysis presented by their economic expert, Dr. Hyatt. In any event, I do not agree with that position. For a variety of reasons set out throughout the medical evidence, Mr. Kwok is not an individual who regularly sleeps through the night, and when awake is subject to the same risk of falls, impulsive behavior, slow reaction time, impaired judgment, and inability to carry out activities without supervision as he is during daytime hours.

[177] The defendants have requested that the award be reduced by 15% because there is a reasonable prospect of improvement, particularly with respect to the psychiatric elements, on the basis that Dr. Seyone testified that Mr. Kwok might improve in the right environment. I have to weigh this evidence against the evidence of Dr. Kwan, that he can offer Mr. Kwok nothing more in terms of medications to improve his condition, and Dr. Seyone’s evidence that individuals with this severity of brain injury are at risk for early dementia. I must consider that, almost seven years post-accident, he has plateaued and there has been no serious evidence of improvement. On the evidence, I find that possible improvement is not a contingency to be taken into account.

[178] Drs. Kwan, Bayley, Seyone, Rathbone and Gerber have all recommended 24 hour attendant care, as have treating occupational therapists and his case manager. Mrs. Kwong no longer wishes to have the responsibility of Mr. Kwok residing in the same home, and Derrick similarly feels that his father needs to live in a separate residence, with easy access to public transportation.

[179] In the proposed model of live-in PSW care, Ms. Lipkus testified that the agency is the employer, responsible for recruitment, hiring, training and all administrative duties, including insurance coverage. Mr. Kwok would be responsible for paying for food during the PSW’s shift, as well as a furnished bedroom. A daily rate is charged, in the range of $250-$275 plus HST. Ms. Lipkus has allotted only $50 per week for food, which I find to be too modest given that three meals per day must be provided, and a one-time cost of $1,000 to furnish the room. I have increased the food cost to $100, which may still be overly conservative.

[180] Annual average costs, incorporating statutory holiday rate pay, are $99,593.75. I have separated annual food costs of $5,200, as most items are non-taxable.

Housing

[181] The live-in model requires that a two-bedroom apartment be secured. Ms. Lipkus has costed two-bedroom apartments in Willowdale, arriving at a range of $925-$2,000 per month. It is important that Mr. Kwok have sufficient funding in this area to have the choice to secure housing in close proximity to public transportation. Prior to the accident he owned and operated his own vehicle, and no transportation costs have been factored into his future care costs. For that reason, I have chosen not the average of these costs, but a figure of $1,750 per month to ensure that Mr. Kwok is not compromised in his ability to live in a desirable two-bedroom apartment with nearby transportation for him to access with his caregiver. This approximates his current living situation, which is in a comfortable three bedroom home and close to a bus route.

[182] In Ms. Lipkus’ calculations, she has offset the cost of a one-bedroom apartment, on the assumption that, had the accident not occurred, Mr. Kwok would have moved from his sister’s to his own apartment after graduating and obtaining a job. That is certainly one contingency, but the other contingency is that he and his wife may have reconciled, and he may have resumed living in the matrimonial home. While I consider that this was a real possibility, given the length of their separation it may not have had a high likelihood of transpiring or succeeding. Nonetheless, I am reducing the cost of the one-bedroom apartment by 10% to account for such possibility. The cost of the one-bedroom apartment averaged at $1,200, or $1,080 with a 10% reduction. This creates a differential between Mr. Kwok’s housing costs pre-and post-collision of $670 per month, or $8,040 per annum.

Medications

[183] The parties varied dramatically with respect to the cost of Mr. Kwok’s medications. To begin, I find that his need for all currently prescribed medications arises from the collisions, other than Acetylsalicylic acid (ASA) and Pantoprazole Sodium, respectively prescribed due to his former heart attack and gastric reflux. Second, I reject the submission that a deduction should be made for the fact that Mr. Kwok is currently covered under Mrs. Kwong’s health benefit plan through her employment. Section 267.8 of the Insurance Act, R.S.O. 1990, c. I.8 applies, entitling the defendants to a trust or assignment of any monies paid under that Act until such time as it may no longer be available to Mr. Kwok. Third, I also reject the submission that an automatic reduction is required on the basis that Mr. Kwok may receive the benefit of the Ontario Drug and Benefit Program once he turns 65. I accept the approach set out in El-Khodr v. Lackie, 2015 ONSC 2824, 126 O.R. (3d) 314, that the possibility that the program will change its eligibility requirements or be discontinued is a contingency. I have also been referred to the case of Lurtz v. Duchesne (2005), 2005 CanLII 5080 (ON CA), 194 O.A.C. 119 (C.A.), which upheld the decision of the trial judge to not apply a discount for the contingency that medication coverage under the Trillium Program may change. The court noted that the trial judge was entitled to make the award on the theory that the tortfeasors, rather than the government, should be responsible for paying the cost of the medication. I adopt that reasoning, finding no logical basis upon which taxpayers should be burdened with expenses arising through the negligence of others.

[184] Accordingly, the annual cost of the medications arising from the collisions, for life, is $7,801.24.

Psychological services

[185] Supportive counselling has been recommended for Mr. Kwok’s family, although weekly psychological therapy has also been recommended for Mr. Kwok himself. While I have some concerns that this latter recommendation has not been taken into account in costing, I will accede to the consensus between counsel that a range of 18-30 hours with a social worker at a fixed average cost of $6,315 is appropriate and reasonable.

Home Maintenance

[186] It is expected that Mr. Kwok’s housekeeping tasks will be managed by the 24-hour attendant care staff, and I also consider that handyman services will be provided by the landlord. Some provision should be made for Mr. Kwok to have indoor heavy cleaning, including window washing, twice yearly. Excluding the cost of handyman services leaves average annual home maintenance costs at $342.50. Mr. Kwok will also have packing and unpacking costs for his move, at an average cost of $960.

Equipment and Aids

[187] Dr. Bayley has recommended that a cane, rollator and eventually, a manual wheelchair be provided for Mr. Kwok due to decreased function with ambulation over time. I agree that such assistive devices are highly likely to be required in the future due to the evidence of his deterioration since the collisions, and accept the total set out in Exhibit 69 of $3,701 as being reasonable.

Physiotherapy Services

[188] Dr. Bayley has recommended some physiotherapy over the next five years to help with pain management, primarily to review the exercise program that is being implemented by the RSW, initially created by a physiotherapist. The evidence establishes that the program has already been created, and that Mr. Kwok enjoys and benefits from those outings. The recommended seven sessions over the next five years is reasonable and necessary to ensure that his program remains suited to his abilities.

Occupational Therapy

[189] An occupational therapist has been part of Mr. Kwok’s multi-disciplinary team off and on since his admission to Toronto Rehabilitation Institute. It is being recommended that services be provided in a concentrated manner after Mr. Kwok moves to his new premises, and that thereafter four to five hours a year be provided to monitor his needs and supervise the implementation of programs by his attendant care providers, and need for adaptive equipment. Occupational therapists have distinct roles from RSWs and PSWs, and given that Mr. Kwok will not be in an institution where his needs might be better monitored, I find that involving this additional healthcare professional is reasonable. The total occupational therapy costs of $11,777 set out in Exhibit 69 are acceptable to the court.

Rehabilitation Support

[190] There was significant disagreement between the parties on the reasonableness of allowing substantial costs for retaining a RSW given that it is now almost six years post collision. The defence has argued that there is no evidence of improvement in Mr. Kwok’s functioning, despite the fact that he has had a RSW since March 2015. In reaching a decision in this case with respect to a reasonable arrangement for the ongoing care of Mr. Kwok, I strongly considered ordering enough funding to permit Mr. Kwok to be admitted to a highly supported environment offered by the Neurologic Rehabilitation Institute of Ontario (NIRO). This would be done in an attempt to provide Mr. Kwok with as much intensive therapy, assessment and rehabilitation as could be possibly provided to him, to make up for the fact that he was unable to access such services for years following his discharge from Toronto Rehabilitation Institute. The point would be to try to maximize and salvage any capacity that he may have for making gains. Such a setting would make sure that Mr. Kwok is receiving specific supports from people trained to work with ongoing pain and behavioural and emotional impairments. It is noted that in the NIRO setting, there is one-on-one support provided by a RSW for four hours per day and group therapy of one hour per day. That intervention is obviously considered to be essential. The cost of providing Mr. Kwok with this level of care was estimated to range from $528-$622 per day. It was not ordered only because the court had insufficient evidence that the extreme cost of such setting would be justified by definite gains for Mr. Kwok Also, even though plaintiff’s counsel urged the court to increase the attendant care funding to take into account the contingency that Mr. Kwok might need to move into such an environment in the future, the evidence did not bear out that it is an institution where individuals in the latter stages of decline would be sent. It is more probable that Mr. Kwok will transition to a long-term care facility.

[191] The testimony of Mr. Kwok’s own RSWs, together with their reports, leads to the conclusion that their intervention, currently limited to only four hours per week, is the greatest enrichment to Mr. Kwok’s quality of life. There is no basis upon which to conclude that he should not have it. Dr. Seyone was of the opinion that a living arrangement in which Mr. Kwok resides in a group setting, such as that offered through Community Head Injury Resource Services (CHIRS), with all treatment providers available at the home, would have a chance of helping Mr. Kwok achieve greater recovery. Even if it does not improve his functioning, it is the opinion of Dr. Bayley that the ongoing participation of an RSW could help to prevent deterioration. I find that there is clearly a need for someone to help Mr. Kwok with more challenging and meaningful activities than those that will be the daily tasks of the PSW.

[192] Based on the current level of service, Ms. Lipkus has recommended three weekly sessions, at two hours each plus driving time, at an average cost of $55 per hour. In my view, this is one of the most important supports that Mr. Kwok will receive in the years to come. It is only being recommended to age 65, when Mr. Kwok’s activity level is expected to reduce, particularly because of a prediction of early dementia. I have no hesitation in adopting the annual yearly cost of $25,488 for the next nine years to age 65.

Recreational Activity

[193] Ms. Lipkus has recommended that Mr. Kwok receive sufficient funding to allow him to engage in CHIRS programming. Mr. Kwok has tried this in the past and did not seem to enjoy it. The cost of the program is $40-$50 per day and runs 2 days per week for 44 weeks a year, at an annual cost of $3,960. This is a considerable amount of money to devote to a future possibility that seems unlikely. However, I do wish to provide a modest amount for the cost of outings and programming specifically geared to individuals with brain injury, to allow these to be accessed with the RSW or PSW as may be recommended by Mr. Kwok’s health professionals, and so award $1,000 per year to age 65.

Cost of Care Table

Item	Time	Annual Cost	HST	Annual Total	Present Value Factor	Total
Case Management Services	Life	$1,687.50	219.37	$1,906.88	17.8449	$34,028
Attendant Care • PSW • Food • Furnishing	Life Life Fixed	$99,593.75 $5,200 $1,000	$12,947.19 $130	$112,540.94 $5,200	17.8449 17.8449	$2,008,282 $92,793 $1,130
Housing	Life	$8,040		$8,040	17.8449	$143,473
Medications	Life	$7,801.24		$7,801.24	17.8449	$139,212
Psychological Services	Fixed	$6,315
Home Maintenance • Moving costs	Life Yr 1	$342.50 $960	$44.53 $124.80	$387.03 $1,084.80	17.8449 0.9975	$6,906 $1,082
Equipment & Aids		$3,701
Physiotherapy Services	5 yrs	$161		$161	4.7488	$765
Occupational Therapy		$11,777
Rehabilitation Support	9 yrs	$25,488		$25,488	8.1882	$208,701
Recreational Activity	9 yrs	$1,000		1,000	8.1882	$8,180
Total						$2,666,345

Guardian of Property and Person

[194] Mr. Kwok underwent a capacity assessment in 2014. The assessment was carried out by Dr. Turrall, who has been a designated capacity assessor for the past 19 years. Dr. Turrall found Mr. Kwok to be incapable of managing his finances, and incapable in respect of all realms of personal care including healthcare, nutrition, shelter, clothing, hygiene and safety.

[195] Mr. Kwok was declared incapable of managing his property and his personal care by order of this court made on April 7, 2015. Pursuant to that same order, Derrick Kwok was appointed as the guardian of Mr. Kwok’s property and personal care. The order requires that Derrick serve and file an amended guardianship plan in the event of any material change in his father’s circumstances, and he is required to serve and file an amended management plan with the Public Guardian and Trustee within six weeks of this court’s judgment in this action. The order further requires him to pass accounts in three years, and thereafter pursuant to further court order. Accordingly, provision should be made for trustee’s compensation, the legal fees, a capital disbursement fee and management fee.

[196] I find the proposed trustee’s compensation of $2,500 per annum for Derrick to be reasonable given the size of this award, the degree of responsibility assigned to him and the work that will be involved in managing his father’s finances. Using the appropriate present value factor, this will be $44,612.

[197] The proposed future legal costs are in a reasonable range, particularly since accounting or bookkeeping assistance may also be needed. The highest amount is likely to be incurred in 2017, when the amended guardianship and management plans will have to be prepared and filed. $12,000 plus HST should be budgeted for 2017. Accounts will have to be passed in 2018, and therefore a further $7,500 plus HST would be reasonable to allot to that year. Thereafter, it is reasonable to expect that accounts will only have to be passed every three years, and therefore legal fees of $7,500 plus HST every third year, for Mr. Kwok’s life expectancy, are a more reasonable estimate.

[198] As suggested by counsel, the court will require the assistance of Mr. Principe or Dr. Hyatt to calculate the capital disbursement fee and management fee based on the calculations previously made with respect to cost of care and loss of income.

Unidentified Motorist Coverage

[199] The Statement of Claim seeks a declaration that the plaintiff is entitled to receive from the Personal all sums which he is legally entitled to recover as damages from the owner or driver of an unidentified automobile, pursuant to the Uninsured/Unidentified Automobile Coverage provisions and the OPCF 44R - Family Protection Coverage provisions of the policy.

[200] Mr. Kwok had a $1 million OPCF 44R limit of coverage through the Personal. The Abecassis defendants were insured under a $2 million motor vehicle liability policy with Aviva Insurance.

[201] This court has been asked to determine whether the plaintiff’s uninsured/unidentified motorist coverage and/or the plaintiff’s OPCF 44R family protection endorsement coverage is triggered, such that either must respond to the claim for damages in the circumstances of this case.

[202] Counsel for the Personal argues that, a result of the Abecassis defendants being found at least 1% liable for the plaintiff’s damages as concurrent tortfeasors who are jointly and severally responsible for Mr. Kwok’s injuries, the obligation of the Personal to pay does not arise. He relies on Bartucci v. John Doe and State Farm Mutual Automobile Insurance Co., 2003 CanLII 42940 (ON SCDC), 68 O.R. (3d) 599 (Div. Ct.), at paras 15-17 and Loftus v. Robertson, 2009 ONCA 618, 96 O.R. (3d) 721, at para. 43 and 47, as authority for the proposition that where an identified, insured defendant is even 1% liable, the excess insurer has no liability to pay. Judgment against the insurer on the uninsured coverage is not available where the insured recovers judgment against an insured joint tortfeasor, as in this case.

[203] These cases remain good law and are applicable to this case. Accordingly, I conclude that the Personal is relieved of any responsibility to contribute to the judgment, and declare that the plaintiff is barred from recovering under the provisions of the uninsured/unidentified/ underinsured sections of his automobile insurance policy.

Judgment

[204] Judgment shall issue in accordance with these reasons once the guardianship costs have been determined with the assistance of counsel. Again, should all parties agree to obtain an exact calculation of past income loss from Mr. Principe using alternative amounts for 2012 to 2015 inclusive, they have leave from the court to do so. Once the parties have agreed on such calculations they should be communicated to me through the judicial assistants’ office, to the attention of Astra Tantalo. Should the parties be unable to agree on either guardianship costs or the issue of pre-judgment interest, they may arrange an appearance through the office of the trial co-ordinator.

[205] If the parties are unable to resolve the issue of costs they may make brief written submissions to the court on a timetable to be agreed upon by counsel, provided that all submissions are received by February 10, 2017.

HEALEY J.

Released: January 9, 2017