COURT FILE NO.: CV-09-383220

DATE: 20210624

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NASH WOODBURY, a minor by his Litigation Guardian, Tracy Lillico, and TRACY LILLICO

Plaintiffs

– and –

ROBERT WOODBURY, LANCE FRASER HAMILTON, CHARLENE ANN SIBLEY and AIDEEN CLAIRE HAMILTON

Defendants

S. Stevens and A. Karakolis, for the Plaintiffs

No one appearing, for the Defendants

HEARD: December 17, 2020

O’Brien, J.

REASONS FOR JUDGMENT

[1] On August 11, 2007, Nash Woodbury (“Nash”), then nine years old, suffered a severe traumatic brain injury in a boating accident on Rice Lake in Northumberland County. Nash’s father, Robert Woodbury (“Robert”), was towing Nash and another child behind a boat on a tube when the tube swung out and hit another boat. Nash was rushed to the hospital where he underwent surgery to repair fractures to his skull. His injuries were catastrophic and have caused him lifelong impairment.

[2] This action is brought by Nash’s mother and litigation guardian, Tracy Lillico (“Tracy”), alleging that Robert was both negligent and reckless. Tracy is seeking damages on Nash’s behalf, as well as on her own behalf under the Marine Liability Act, S.C. 2001 c. 6 (“MLA”). The driver of the other boat, Lance Hamilton (“Mr. Hamilton”), and the remaining Defendants already arrived at a settlement with the Plaintiffs and have been released from the action. Robert did not defend the action and did not attend at the trial.

[3] The MLA includes a provision limiting liability for damages for injury in the amount of $1,000,000. However, the MLA also incorporates some articles of an international convention, the Limitation of Liability for Marine Claims, 1976 (the “Convention”), including an article providing that the limitation on liability can be lost in certain circumstances. Those circumstances include where the loss resulted from a personal act or omission that was committed “recklessly and with knowledge that such loss would probably result.”

[4] In this case, I must first determine whether Robert was negligent. As that question is easily addressed based on his deemed admission of the facts pleaded in the Statement of Claim, the key issue is whether in driving his boat recklessly, such that the tube he was towing swung out and struck another boat, Robert committed an act or omission “with knowledge that the loss would probably result.” I will also go on to determine damages.

[5] The issues I must address therefore are:

(1) Was Robert negligent and did his negligence cause Nash’s injuries?

(2) Was Robert reckless and did he have knowledge that Nash’s injuries would probably result?

(3) What damages did Nash suffer? and

(4) What damages did Tracy suffer?

[6] For the reasons that follow, I conclude that Robert was negligent in a manner that caused Nash’s injuries. However, pursuant to the MLA, the Plaintiffs’ aggregate damages are limited to $1,000,000. Although Robert behaved recklessly, I do not find that he had knowledge that Nash’s injuries would probably result. Nonetheless, I have gone on to assess Nash’s damages, which clearly exceed $1,000,000. Nash has suffered injury that has had and will continue to have an enormous impact on his life, as discussed below. Tracy’s life, including her relationship with Nash, also has changed dramatically as a result of the accident. I assess her damages at $100,000. However, as I find that the Nash and Tracy’s total damages cannot exceed $1,000,000, I award $990,000 to Nash and $10,000 to Tracy.

Admissibility of Evidence

[7] At the trial of this matter, I raised questions regarding the admissibility of various pieces of evidence relied on by the Plaintiffs. I am satisfied with the admissibility of that evidence, other than certain witness statements found in the Ontario Provincial Police’s Technical Marine Collision Investigative Report dated October 1, 2007. Specifically, I am satisfied that the hospital notes and clinical notes and records of treating practitioners, as well as the school records, are admissible as business records pursuant to s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23. The medical reports prepared by Nash’s treating practitioners are admissible pursuant to s. 52 of the Evidence Act.

[8] In addition, the Plaintiffs put forward three experts who completed Form 53s to provide evidence pursuant to r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These witnesses are Michael Vollmer, an expert in marine safety; Gary Principe, an expert in forensic accounting; Dr. Margaret Voorneveld, who completed a neuropsychological assessment of Nash; and Kelly Farrell, a life care planning expert.

[9] Ms. Farrell was qualified as an expert and gave viva voce evidence at trial. I gave leave for the remaining experts to provide their evidence by affidavit pursuant to r. 53.02 and I find their evidence to be admissible.

[10] I do not agree that all the witness statements in the Technical Marine Collision Investigative Report are admissible. The Plaintiffs seek to admit various witness statements found in that report, claiming they constitute business records under s. 35 of the Evidence Act and relying on Flood v. Flood, 2019 ONCJ 12.

[11] In Flood, the court outlined the principles for the admissibility of business records set out in Setak Computer Services Corporation Ltd. v. Burroughs Busteres Machines Ltd. (1977), 1977 CanLII 1184 (ON SC), 15 O.R. (2d) 750 (H.C.). These include that both the person recording the information and the person providing the information be acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence, or event. If the witness accounts do not comply with this requirement, they will not be admissible for the truth of their contents, unless the statement is from one of the parties to the litigation and amounts to an admission against interest, satisfies some other exception to the hearsay rule, or satisfies the principled approach to the hearsay rule: see Flood, at para. 50.

[12] Here, the statements are from various witnesses, as well as from Robert. Robert’s statement, where relied upon to his detriment, is admissible as a statement against interest. The Plaintiffs have not provided any submissions regarding why the other witness statements should be admitted. On the face of it, these are hearsay from third parties whose statements to police were not made in the ordinary course of business. There has been no suggestion that these witnesses were not available to testify at trial. Therefore, their statements are not admissible. That said, I have reviewed the statements and do not find that they would change my analysis or conclusions.

[13] The Defendant, Mr. Hamilton was the driver of the other boat involved in the accident. The Plaintiffs have since settled their claim against him. He attended for an examination for discovery and the evidence from his examination for discovery is admissible as a read-in pursuant to r. 31.11.

[14] A final issue related to evidence is the fact that Robert was noted in default. A defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the Statement of Claim: r. 19.02. However, a plaintiff is not entitled to judgment because the facts in the Statement of Claim are deemed admitted unless the facts entitle the plaintiff to judgment: r. 19.06. In addition, any claim for unliquidated damages must be proven: r. 19.05.

Statutory Provisions

[15] Although the collision in this matter occurred on Rice Lake, a small inland body of water, it is subject to Canadian maritime law: see Whitbread v. Walley, 1990 CanLII 33 (SCC), [1990] 3 S.C.R. 1273.

[16] Section 29 of the MLA applies to the circumstances of this case. It limits the liability for maritime claims that arise with respect to personal injury on a ship operated for a non-commercial and non-public purpose. It also applies to ships of less than 300 gross tonnage, a category applicable to both boats involved in this collision. Section 29 provides:

29. The maximum liability for maritime claims that arise on any distinct occasion involving a ship of less than 300 gross tonnage, other than claims referred to in section 28 [which excludes a person carried on board a ship other than a ship operated for a commercial or public purpose], is

(a) $1,000,000 in respect of claims for loss of life or personal injury; and

(b) $500,000 in respect of any other claims.

[17] However, art. 4 of the Convention, portions of which are incorporated into the MLA at Schedule 1, provides protection in some circumstances against the limitation on liability in s. 29. It reads:

Article 4

Conduct barring limitation

A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result.

Negligence

[18] Pursuant to this legal regime, the first question is whether Robert is liable in negligence for Nash’s injuries. This issue is straightforward, as Robert is deemed to admit the allegations of fact in the Statement of Claim. Specifically, Robert is deemed to admit that he was proceeding at a speed of approximately 20-25 m.p.h. in his boat (the “Woodbury boat”) and that, as he approached the shore, the other boat (the “Hamilton boat”) caused him to suddenly change course, resulting in a collision. Robert is deemed to further admit the following allegations of fact with respect to the collision between the two boats:

• He failed to keep a proper lookout.
• He failed to keep his boat under proper control.
• He failed to have the necessary degree of skill and diligence to enable him to discharge his duty as the operator of his boat.
• He failed to have the ordinary skill, care, and knowledge which are ordinarily found in a competent watercraft operator.
• He failed to take all reasonable and necessary steps to avoid a collision between the tube he was towing and the other boat.
• He failed to give warning to the Defendant, Mr. Hamilton of an impending collision.
• He was operating his boat at an excessive rate of speed having regard to visibility and the manoeuvrability of the boat.
• He was travelling at an excessive rate of speed considering the circumstances and, as such, he could not control the boat.
• He was operating his boat contrary to the provisions of the Collision Regulations as defined in the MLA.
• He was operating his boat contrary to the provisions of the Small Vessel Regulations.
• He had a last clear chance to avoid the accident but failed to make proper use thereof.

[19] The ordinary principles of tort law apply to the owner and operator of a boat: see Ito-International Terminal Operators v. Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752, at p. 779. To avoid liability in negligence, “a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances”: Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28. In this case, Robert was required to exercise the standard of care expected of a reasonably prudent boat operator.

[20] In my view, the facts set out above constitute negligence that caused the collision and entitle Nash to judgment against Robert for his injuries arising from the collision. The admitted facts include that Robert was operating the boat at an excessive speed, that he did not have the ordinary skill and competence needed to operate the boat, and that he did not keep a proper lookout, among other things. When towing children behind a boat on a tube, a reasonably prudent boat operator would exercise a standard of ordinary skill and knowledge, would not drive the boat at excessive speeds, and would keep a proper lookout. In any event, because the Plaintiffs seek to avoid the limitation on liability in the MLA, the details of which were not pleaded in the Statement of Claim, they have adduced evidence as to what occurred in the collision. Based on the pleaded facts, as well as my factual findings at trial, as detailed below, I am satisfied that Robert was negligent in a manner that caused injury to Nash.

Recklessness and Knowledge that Loss Would Probably Result

[21] The more complicated question is whether the circumstances of this case permit the Plaintiffs to avoid the limitation on liability set out in the MLA. As discussed further below, the lives of both Nash and Tracy have changed dramatically and irrevocably as a result of this boating collision. They have suffered enormously. Nonetheless, and sadly, I find that the circumstances of this case do not meet the exception to the s. 29 limitation on liability set out in art. 4 of the Convention.

[22] As set out above, art. 4 prevents a person from limiting his liability where the following is proved:

• The loss resulted from his personal act or omission; and
• The act or omission was committed with the intent to cause such loss; or
• The act or omission was committed recklessly and with the knowledge that such loss would probably result.

[23] I have found above that Nash’s loss resulted from Robert’s personal act or omission. The Plaintiffs do not suggest that this act or omission was committed with the intent to cause Nash’s loss. They submit instead that Robert acted recklessly and with the knowledge that such loss would probably result. I agree that Robert acted recklessly but cannot conclude that he acted with the knowledge that Nash’s loss would probably result.

A. Recklessness

[24] In finding that Robert’s conduct was reckless, I note that the Plaintiffs did not specifically plead Robert’s recklessness in the Amended Amended Statement of Claim, nor did they plead that Robert had knowledge that Nash’s loss would probably result. Therefore, there are no allegations directed specifically at this legal test. That said, the Plaintiffs did plead and rely on the provisions of the MLA.

[25] Further, the Plaintiffs have submitted evidence to the court in support of a finding of recklessness. I find that Robert’s conduct was reckless in that he deliberately ran an unjustified risk in a number of ways.

[26] On the date of the collision, August 11, 2007, the weather was clear, with a light wind. There were no issues with visibility. At approximately 2:30 p.m., Robert was driving the Woodbury boat, a Sunray Sceptre motorboat with an inboard/outboard drive, with an inner tube towing behind. A friend, Donnie Calnan, was a passenger in the boat and acting as a spotter. Nash and another child were being towed behind the boat on the tube.

[27] At around the same time, the Defendant, Mr. Hamilton was pulling the Hamilton boat away from his dock, also towing children on a tube. Once his tow rope was taut, Mr. Hamilton put the boat in neutral to check on the children. The boat remained stopped in this position for two to three minutes. The children on the tube were only about five feet from the dock.

[28] Mr. Hamilton and the occupants of the Hamilton boat then saw the Woodbury boat approaching them from an easterly direction. Mr. Hamilton’s evidence is that he and the occupants of his boat started honking and yelling to alert the Woodbury boat that they were there. Mr. Hamilton also states that as the Woodbury boat was approaching, Robert was turning to look behind him, watching the tube. Only “at the last minute he finally noticed us.” Robert then made a “hard swerve and flung the kids into the side of the boat.”

[29] Gundersen v. Finn Marine Ltd., 2008 BCSC 1665, at para. 45, sets out the following helpful definition of recklessness, adopted from Albert E. Reed & Co. v. London & Rochester Trading Co. Ltd., [1954] 2 Lloyd’s Rep. 463 (Q.B.), at p. 475: “The term ‘recklessly,’ I think, does not really give rise to much difficulty. It means something more than mere negligence or inadvertence. I think it means deliberately running an unjustifiable risk.”

[30] In my view, Robert deliberately ran an unjustifiable risk. In assessing Robert’s conduct, I rely in part on the report of the expert retained by the Plaintiffs, Michael Vollmer. Mr. Vollmer has a BSc in mechanical engineering and is a member of the International Association of Marine Investigators. He has over 41 years of professional small vessel experience, which includes instructions in seamanship. He is currently employed as a recreational marine industry consultant specializing in safety matters, as well as a forensic consultant specializing in boating incidents. Mr. Vollmer has been accepted as an expert witness in courts in Ontario, Alberta, and Nova Scotia. I qualify him as an expert in small vessel marine safety.

[31] I note that Mr. Vollmer’s report relies in part on witness statements that were not otherwise admissible in evidence. I have disregarded those portions of his report and only put weight on his opinions with respect to matters that are otherwise in evidence or which he has put into evidence.

[32] I am satisfied that Robert’s conduct was reckless for the following reasons:

(a) He was travelling at a speed that contributed to the accident. The Woodbury boat could operate at speeds of up to 40 m.p.h. Given Robert’s estimated speed of 20-25 m.p.h., according to Mr. Vollmer he would have travelled 30 feet in 8-10 seconds. This speed, in Mr. Vollmer’s opinion, contributed to the collision.

(b) Robert’s actions were not compliant with the safety warnings on the tube Nash was on. The tube’s label warned against travelling at speeds above 15 m.p.h. when towing children and stated that the maximum tow length was not to exceed 65 feet. Robert’s admitted speed was faster than 15 m.p.h. In addition, in his witness statement Robert admitted that the tow length of the rope he used was 80 feet. According to Mr. Vollmer, the length of the tow line would exacerbate the speed of the tube during turns and so represented a “significant hazard.”

(c) I conclude on a balance of probabilities that Robert consumed alcohol before and/or during the operation of the Woodbury boat. The Ontario Provincial Police documented in their investigation notes various signs of alcohol use in the boat. Under the rear left seat, they found an empty Coors Light can, an empty Woody’s Raspberry cooler bottle, and two full Woody’s Raspberry cooler bottles. They also located an empty bottle of some kind next to the driver’s seat and they located a full bottle of wine. Nash testified at trial that he had seen Robert consuming alcohol before taking him on the tube. I have considered whether this is an independent recollection, given the passage of time and the degree to which the accident likely was discussed within his family. However, Tracy also testified that she could smell alcohol on Robert’s breath when she spoke to him after the accident. In all the circumstances, I am satisfied on the evidence before me that Robert had consumed alcohol before and/or during the operation of the boat.

(d) Operating a boat with liquor onboard is contrary to s. 32(3) of the Liquor Licence Act, R.S.O. 1990, c. L.19. In addition, I accept Mr. Vollmer’s opinion that consuming alcohol would have had a detrimental effect on Robert’s ability to react to an unexpected hazard on the water. Mr. Vollmer relies on a study noting that the effects of the marine environment, including motion, vibration, engine noise, sun, wind, and spray, act as stressors which, on their own, affect an operator’s co-ordination, judgment, and reaction time. Although there is no information as to Robert’s specific blood alcohol level, I accept Mr. Vollmer’s statement that if he had been consuming alcohol, this would have had a detrimental effect on his ability to react to an unexpected hazard on the water.

(e) The evidence is that until a moment before the crash, Robert was watching the children behind him on the tube.

(f) Robert was operating his boat too close to the shoreline, given that the Hamilton boat was only a few feet from its dock.

[33] Some of the items set out above might amount only to negligence on their own. In combination, they constitute recklessness. Having consumed alcohol, it was reckless and an unjustifiable risk for Robert to be driving at an excessive speed, too close to shore, and looking behind him.

B. Knowledge that loss would probably result

[34] Although I consider Robert’s actions to have been reckless and accept without hesitation that he would have had knowledge of the possibility that loss of the type that occurred might result, I cannot say he had knowledge that such loss would probably result.

[35] In Société Telus Communications v. Peracomo Inc., 2014 SCC 29, the Supreme Court of Canada emphasized the extremely high bar in art. 4 of the Convention to “break” the limitation on liability in s. 29 of the MLA. Cromwell, J. noted at para. 24 that the contracting states to the Convention intended the fault requirement to be a high one. He quoted from various authors who described how difficult it would be to break the limitation on liability, making comments such as, “[I]t is almost impossible for the claimants to break the right to limit” and, “Meeting the threshold fault requirement requires a high degree of subjective blameworthiness”. Further: “The fault standard set by art. 4 has been described as … ‘an almost indisputable right to limit … liability’” (citations omitted).

[36] Cromwell, J. also noted that the contracting states considered but expressly rejected the inclusion of “gross negligence” as a sufficient level of fault to break liability: see para. 24.

[37] In discussing the requirement under art. 4 to show that “such loss would probably result”, Cromwell, J. included an illustration that is particularly apt to this case. The question was whether art. 4 requires knowledge of the type of damage that occurred or whether knowledge is required of the very loss that actually occurred. While Cromwell, J. found it was not necessary to determine that issue for the purposes of that case, his illustration is helpful in establishing that in this case, at a minimum, Robert needed to have known he would probably collide with another boat.

[38] Quoting from Lord Phillips in Schiffahrtsgesellschaft MS Merkur Sky mbH & Co. KG v. MS Leerort Nth Schiffahrts GmbH & Co. KG, [2001] EWCA Civ 1055, [2001] 2 Lloyd’s Rep. 291 (Eng. C.A.), Cromwell, J. illustrated the difference between “type of loss” and “very loss” as follows, at para. 30:

It seems to me that where the loss in respect of which a claim is made resulted from a collision between ship A and ship B, the owners of ship A, or cargo in ship A, will only defeat the right to limit liability on the owner of ship B if they can prove that the owner of ship B intended that it should collide with ship A, or acted recklessly with the knowledge that it was likely to do so.

The alternative, which is perhaps arguable, is that the claimant merely has to prove that the owner of ship B intended that his ship could collide with another ship, or acted recklessly with the knowledge that it was likely to do so. [Emphasis in Société Telus Communications.]

[39] I do not need to determine the distinction between “type of loss” and “very loss” for the purposes of this case either. In my view, Robert neither acted recklessly with knowledge that his boat would probably collide with the Hamilton boat or that Nash’s specific injuries would probably result, nor did he act recklessly with knowledge that his boat probably would collide with another boat. While he acted recklessly, the circumstances were not that a collision with either the Hamilton boat or another boat was probable.

[40] In the cases relied on by the Plaintiffs, it was not speculative that the loss would result. Those cases applied a provision from a different convention with wording similar to art. 4, except that the reference is to “damage” as opposed to “loss”. In Newell et al. v. Canadian Pacific Airlines Ltd. (1977), 1976 CanLII 820 (ON SC), 14 O.R. (2d) 752 (County Ct.), for example, the plaintiffs’ dogs became seriously ill and one died while being transported in the cargo area of the defendant’s aircraft. The dogs were stored in the same compartment as dry ice, which emits carbon dioxide in sufficient concentration to cause the death of an animal. The defendant’s manual specifically stated in three places that animals were never to be loaded in the same compartment as dry ice. On the facts of that case, it was probable that the animals would be seriously injured.

[41] In Connaught Laboratories Ltd. v. British Airways (2005), 2005 CanLII 16576 (ON CA), 77 O.R. (3d) 34 (C.A.), the Ontario Court of Appeal upheld the decision of the trial judge that British Airways was reckless with knowledge that damage would probably result. The plaintiff in that case had shipped four cartons of perishable vaccine on the defendant’s aircraft. The contract required British Airways to keep the cargo refrigerated. It failed to do so. The evidence was that, once exposed to elevated temperatures, the vaccine was not safe for human use and had to be destroyed. In addition, instructions to refrigerate were clearly stated on the cargo.

[42] In my view, those cases are distinguishable in that the damage was not only possible but highly likely. In both cases, if the carrier failed to follow the proper protocol, the damage was expected to result. Here, although Robert’s actions seriously raised the risk of injury, he only had knowledge that such injury was possible, not probable. Even if the conduct amounted to “gross negligence”, that standard was rejected by the contracting states.

[43] When Robert drove his boat at an excessive speed, too close to shore, using a tow rope that was too long, having drunk alcohol, and looking back at the children at least for a moment, he was taking an enormous risk. But there still remained a good chance that no accident would ultimately materialize. Unfortunately, another boat was in his path and this horrendous accident occurred. In my view, the moment Robert knew that the injury sustained by Nash was “probable” was not when he took all the actions outlined above, but when he turned his head to see that he was directly approaching the Hamilton boat. Although his reckless conduct put him in the situation of approaching that boat, his actions at that moment were not reckless. There is no suggestion that it was reckless for him to swerve his boat away once he knew that the accident was probable. Therefore, in my view, Robert is entitled to the limitation on liability provided by s. 29 of the MLA.

Damages

[44] I will go on to assess damages for two purposes. First, to ensure Nash’s damages are at least $1,000,000, such that he is entitled to the full statutory maximum. Although this becomes evident easily and without a fully detailed assessment, I have gone on to assess the damages in detail in the event that I am wrong in my application of art. 4 to the facts of this case.

[45] The Supreme Court of Canada set out the regime for assessing personal injury damages in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229. There are three headings of damages: (a) general damages; (b) past and future loss of income; and (c) past and future costs of care.

A. Injuries

The accident and its immediate effects

[46] I will start by reviewing the severity of Nash’s injuries and the general impact they have had on his life before turning to each head of damages.

[47] The accident on August 11, 2007 caused Nash to suffer a severe traumatic brain injury. Nash was rushed to the Northumberland Hills Hospital, then subsequently transferred to the Hospital for Sick Children (“Sick Kids”) in Toronto. When he arrived at Sick Kids, he required aggressive resuscitation. His brain tissue was exposed through lacerations and fractures in his skull. Nash underwent surgery and was transferred to the Intensive Care Unit (“ICU”). Because of brain edema (swelling), he underwent surgery again two days later. His surgeries involved the removal of large bone flaps on both the left and right temporal parietal bones. He returned to the ICU on a ventilator. Once the ventilator was removed, Nash was fitted with a helmet to protect him from additional injuries due to craniectomy defects. He remained in the ICU for 12 days before being transferred back to the ward.

[48] On September 6, 2007, Nash was transferred to the Inpatient Brain Injury Program at Holland Bloorview Kids Rehab Centre (“Bloorview”), where he received approximately three months of further rehabilitative therapies and treatment. Although Nash was able to participate in activities of daily living at Bloorview, he required supervision due to issues related to his judgment and safety. He also had challenges with his attention and memory and was found to be physically and verbally impulsive.

[49] In June 2008, Nash underwent further surgery to repair the defect in his skull.

Neuropsychological consequences and need for 24-hour supervision

[50] Nash has been assessed by neuropsychologists on a number of occasions. I conclude from their reports and from the evidence regarding his functioning that Nash has suffered serious, life-altering neuropsychological consequences from the accident that render him unable to function as an independent adult. By way of overview, although Nash was able to attend school following his rehabilitation, he required significant assistance and experienced an increasing gap over time between his ability to function and that of his peers. As an adult, he is impulsive, has low intellectual functioning, and requires constant supervision.

[51] In the early days following the accident, while at Bloorview, Nash required assistance with walking due to decreased balance and co-ordination, particularly given the danger of any further head injury. He also was not capable of exercising judgment to ensure he remained safe. Further, because of challenges with attention and focus, he required a high level of structure to function.

[52] Once he returned home, Nash required assistance with activities of daily living, such as feeding, dressing, bathing, and grooming. Additionally, he was impulsive and lacked an awareness of danger. Nash began exhibiting bizarre behaviours, such as using a knife to cut furniture, drawing on himself, and trying to light things on fire.

[53] Nash was able to return to school in January 2008 with the assistance of a full-time educational assistant (“EA”).

[54] In a report dated May 11, 2009, when Nash was ten years old, Dr. Janine Hay concluded that Nash had cognitive and behavioural difficulties consistent with the nature of his acquired brain injury, likely exacerbated by pre-existing weaknesses in attention. His language comprehension skills were an area of significant weakness, and these were compounded by difficulties with verbal reasoning, executive functioning, and attention.

[55] Dr. Hay reassessed Nash approximately three years later in March 2012. She noted that he had developed a seizure disorder. She also noted that his level of academic function in some areas revealed an increasing gap between his performance and that of peers of the same age.

[56] Once Nash entered high school, it became a major challenge to ensure he stayed in school. He would wander off school property regularly.

[57] In a report written when Nash was in grade 12, his occupational therapist, Keri Haukioja, described Nash as

[H]aving severe working memory challenges, impulsivity, difficulties with attention, and with problem solving. He requires adult support and prompting to maintain on task, and to limit inappropriate peer interactions. He continues to be monitored between classes by an adult, and his mother picks him up at lunchtime.

[58] In addition, as he grew older, Nash would leave home and not return for a day or more, leading to police searches. When he disappeared, Nash did not take his medication, which led on some occasions to his having seizures and being hospitalized.

[59] Recently, Nash was assessed by a neuropsychologist retained by the Plaintiffs, Dr. Margaret Voorneveld. At the time of this assessment, Nash was 19 years old. I accept Dr. Voorneveld’s opinions. She is a highly qualified psychologist who has been recognized as an expert witness in clinical psychology, clinical neuropsychology, and post-traumatic stress disorder. She has extensive experience in addressing the psychological, neurocognitive, and vocational consequences of accidents and disabilities. Dr. Voorneveld’s report is persuasive, her findings are consistent with the testimony of Nash and Tracy at trial, and I was not provided with any competing reports. Therefore, I accept Dr. Voorneveld’s conclusions.

[60] Dr. Voorneveld commented that Nash “continues with poor insight and awareness, which in turn has resulted in marked impairment in his ability to engage in his social and personal relationships. He presented as childlike in his mannerisms, and his behaviour was of a child as opposed to a 19-year-old man.” This is consistent with my impressions of Nash when he testified before me.

[61] Dr. Voorneveld found that Nash experienced deficits consistent with a brain injury, including a personality change, neurocognitive impairment, emotional dysregulation, and cognitive executive dysfunction. According to Dr. Voorneveld, these deficits “have severely impacted his ability to engage in, and to sustain work scenarios, and have impaired his ability to engage in his social and recreational life.” Specifically, according to Dr. Voorneveld, Nash’s intellectual functioning is extremely low. The deficits caused by his brain injury prevent him from engaging in activities in a sustained manner. Dr. Voorneveld concluded that Nash requires constant supervision in any activity and in the community, as follows:

He would become easily bored, distracted, and unable to focus and concentrate on an activity. There would also be safety issues in any work or volunteer endeavour, and even if he were to consider some form of volunteer work … he would require constant supervision. There are also safety issues in the community, and he will continue to require ongoing supervision on a 24-hour basis. Based on the severity of his brain injury disturbance, and subsequent onset of seizures, he should not operate a motor vehicle.

[62] I also accept Dr. Voorneveld’s conclusion that Nash’s deficits do not result from pre-existing attention issues. Even if Nash had a confirmed diagnosis of ADHD prior to the accident (which he did not, although one was suspected), there was no indication of learning issues prior to the accident. In any event, such a diagnosis would only have made him more vulnerable to the injury he suffered; it would not have caused any of the consequences he now experiences. As stated by Dr. Voorneveld:

Even if Mr. Woodbury had exhibited ADHD symptoms prior to the subject accident, he would have been all the more vulnerable to the effects of a severe closed head injury. However, even without such a diagnosis, the severity of the closed head injury he sustained would have resulted in a disabling injury, which has been the case for Mr. Woodbury. In this respect, having worked with brain injury adults over the past 25 years in a rehabilitation practice, with and without a pre-accident diagnosis of ADHD, there is no question that the severity of his brain injury would account for the severity of his ongoing impairment.

Seizure Disorder

[63] As noted above, Nash developed a seizure disorder as a result of his brain injury. He had his first seizure on December 25, 2011. By 2016, Nash was experiencing seizures approximately once per month, although they would “cluster” and he might have one or two in a day. Currently, Nash’s seizure disorder is successfully controlled, provided he adheres to a strict medication schedule and remains healthy.

Summary

[64] In summary, as a result of the accident, Nash suffered a severe traumatic brain injury that has left him with permanent cognitive impairment, including significant issues with focus, concentration, and memory. He requires constant supervision and redirection to ensure his safety and follow through on any activity. He has very low intellectual functioning. He also suffers from a seizure disorder. As further detailed below, these injuries and impairments have had a significant impact on Nash’s ability to succeed at school and at work and to live an independent adult life.

B. Past and Future Cost of Care

[65] Nash is entitled to damages for the cost of care that may reasonably be expected to put him in the position he would have been in had he not sustained the injury. Obviously, it is impossible for Nash to be returned to this position; his life has been irrevocably altered and is on an entirely different course. Nonetheless, I must determine a reasonable amount to provide the care recommended: see Andrews, at p. 241; Hummel v. Jantzi, 2019 ONSC 3571, at paras. 235-241.

Need for attendant care

[66] I accept the Plaintiffs’ position that as a result of the accident and the severity of his impairments, Nash has required and will continue to require 24-hour supervisory attendant care. Although Nash is physically capable of completing his activities of daily living, his cognitive impairments, including impulsiveness and lack of judgment, in addition to his seizure disorder, mean that he has required and will require attendant care around the clock.

[67] For the years since the accident, Tracy has been caring for Nash. In the early days following the accident, Tracy stopped working so she could be at Nash’s bedside at Sick Kids and Bloorview. She assisted him with walking and otherwise kept him safe. She also attended to all of his personal care needs. Once he returned home, Tracy was required to monitor him closely at all times to keep him safe, as well as assist him with his activities of daily living.

[68] When Nash returned to school, Tracy would walk him to school each day and bring him directly to the EA. She would pick him up from the EA at the end of the day. She also remained on-call should issues arise at school.

[69] Once Nash entered high school, it continued to be necessary for Tracy to walk him to and collect him from school. When he wandered off school property, she would try to locate him and either take him back to work with her or take him home.

[70] When Nash has sought independence, the results have been concerning. For example, as set out above, Nash has on occasion disappeared, leading to seizures and hospitalization. Nash also has misinterpreted social cues from girls and women, resulting in the police being called with allegations of stalking. When allowed independence, Nash also has spent time with people who have taken advantage of him by providing him with alcohol. As a result of her concerns for Nash’s safety, Tracy now does not provide him with a cell phone (which he has used in the past in inappropriate communications with girls and women) and has installed a double lock on the door of their home so that it cannot be opened from the inside without a key.

[71] The medical professionals who have assessed Nash agree that he needs 24-hour attendant care. Dr. Voorneveld commented on the safety issues Nash faces in the community, stating, “[H]e will continue to require ongoing supervision on a 24-hour basis” and, “[M]y impression is that Mr. Woodbury requires ongoing 24-hour attendant care.” She noted specifically that if at some point Tracy is unable to provide the care she currently provides, Nash will require a residential living arrangement to ensure the necessary supervision: “Such living environments would be costly, and the concern will be that without the appropriate accommodations and supports, he would likely leave. The wors[t] possible scenario would then be that he ends up homeless and, on the streets, and vulnerable to the influence of others.”

[72] The Plaintiffs retained Kelly Farrell, an occupational therapist (“OT”) and certified life care planner, who testified before me and who I qualified as an expert with respect to the assessment and costing of Nash’s future medical, rehabilitation, and care needs arising from the accident. Ms. Farrell and her colleague assessed Nash on two occasions and interviewed Tracy for further information. Ms. Farrell found that Nash had difficulty generating solutions to safety problems, even with prompting. For example, when asked what he would do if living alone and both his lights and TV went off at the same time, Nash replied, “I’d go to sleep.” When asked what he would do if he was in the yard and saw smoke coming out of the kitchen window, he said, “Lose my mind ... is 911 the same as ambulance or fire? I’d have to go get a new Xbox and Nintendo Switch.”

[73] I accept Ms. Farrell’s opinion that Nash requires 24-hour supervisory care to ensure his safety and to facilitate completion of daily tasks and self-care routines, including taking his medication.

Past attendant care

[74] Nash would be entitled to damages for past attendant care. Given that Nash has required 24-hour attendant care to the date of trial, he would be entitled to damages for that amount, regardless of who provided it to him. That is, it is immaterial that his mother provided his care to date. As set out in Andrews, at p. 243, dedicated family members who devote their lives to looking after injured children are not expected to do so on a gratuitous basis: see also Hummel, at paras. 237, 239, and 240.

[75] In terms of quantifying attendant care costs, Ms. Farrell explained that she surveyed three local personal support agencies and concluded that the median cost of this service is $31.03 per hour, or $35.03 per hour including HST.

[76] The Plaintiffs therefore claim the cost of past attendant care at the rate of $31.03 per hour, given that this care has been provided by Tracy and not an agency, so HST would not be payable. They claim this hourly rate 24 hours per day, 7 days per week, for the past 13.35 years, totalling $271,560 annually.

[77] In my view, this overestimates the amount due for past attendant care. First, when Nash was in elementary school, he had an EA assigned to him. Although he did not have an EA in high school, nonetheless he did have teachers and others to supervise him, at least to some degree. I recognize that Tracy was required to be on-call for situations where he disappeared or needed assistance. Still, I view this as different from providing 24-hour attendant care. Tracy was able to continue in her employment, although she relied on the flexibility provided by a family business to be able to leave as necessary and return with Nash as needed.

[78] In addition, as recognized in Matthews Estate v. Hamilton Civic Hospitals (Hamilton General Division), 2008 CanLII 52312 (Ont. S.C.), at para. 195, the agency rate should be reduced because it includes profit and overhead.

[79] Third, in my view, a lower rate should be applied during overnight periods when, although Tracy would need to monitor Nash to some degree, she generally would be sleeping in her room with him nearby.

[80] I do not have the evidence before me to take these factors into account in a precise manner. In my view, an appropriate global amount taking these factors into account is $67,500 per year, which is one quarter of the amount claimed. Multiplied by 13.35 years, the total amount I would order for past attendant care $901,125.

Future attendant care

[81] Given his ongoing need for 24-hour supervision, Nash also requires future attendant care. The Plaintiffs submit that the court should calculate Nash’s future attendant care claim based on the average market rate of $35.03 per hour, as identified by Ms. Farrell, which calculates to $311,066.40 per year. They say Nash is entitled to this amount as now that he is over 18, he may wish to consider independent living rather than continuing to live with his mother. Nor is there any guarantee that Tracy will be able to provide Nash with the level of care he needs indefinitely into the future.

[82] I accept that Nash may seek independent living at some time and is not precluded from doing so. I also accept that Tracy will not necessarily be able to care for Nash indefinitely and likely will predecease him. Keeping that in mind, I consider it appropriate to apply a discount to the amounts claimed. I note that Ms. Farrell has taken into account that Nash will have the assistance of a rehabilitation therapist (“RT”) for some hours every week (discussed below). She has reduced the hourly rate of the RT to account for duplication with the attendant care costs. However, Nash’s attendant care is not likely to be exclusively provided by professional healthcare workers given that he currently lives with Tracy, who, for the moment, provides his care, including overnight care in her own home. Even if Nash moves to independent living, he may be able to obtain overnight care at a lower rate. Nash also may ultimately transition to a supported independent living program, where a personal support worker is available to attend to him and other clients at the same time. Current monthly costs for such programs average to $13,500 per month or $162,000 per year.

[83] In her report, Ms. Farrell applies a rate of $35.03 per hour, 24 hours per day. She also includes attendant care holiday pay and time-and-a-half pay for ten days annually. I adopt the approach in Hummel, at para. 270, of applying a contingency to take into account that the medically required attendant care is not likely to be exclusively provided by professional healthcare workers. I also take into account the contingency that Nash could move into an independent living program at a lower cost. With all of this in mind, I reduce the $311,066.40 annual total provided by Ms. Farrell by 30 percent. This calculates to $217,746.48, which I round to $215,000 per year.

Other future care needs

[84] Ms. Farrell also recommends a list of services that would allow Nash to maintain some level of independence, good health, increased function, and overall quality of life. Nash’s treating medical professionals, as well as Dr. Voorneveld, endorse these recommendations. I address each of them below:

i. Assistive devices

[85] Ms. Farrell recommends that Nash have a medic alert bracelet at a cost of $5 per month. This recommendation originally came from Dr. Kobayashi, the physician treating Nash for his seizures. I accept that this is appropriate given the ongoing possibility of Nash disappearing and his propensity for seizures in that circumstance.

[86] Ms. Farrell also states, and I accept that Nash could benefit from cognitive compensatory aids that may be identified through occupational therapy intervention, such as a whiteboard, sticky notes, computer apps, etc. Ms. Farrell suggests an allowance of $75 per year. This seems somewhat high to me, and I would allow an allowance of $50 per year.

[87] Ms. Farrell recommends that Nash have a door alarm and monitoring system because he is prone to leaving home without permission. I have considered whether this will be necessary once he has 24-hour attendant care in place but recognize that a caregiver must on occasion be out of the room, leaving an opportunity for Nash to leave. Ms. Farrell estimates the cost of this system to be $225 every five years or $45 annually. In the absence of any other information, I accept this as a reasonable estimate.

ii. Home maintenance

[88] Ms. Farrell recommends two hours of bi-weekly housekeeping for heavy housekeeping work given that Nash is subject to cognitive fatigue and demotivation. She acknowledges that with occupational and rehabilitation therapy support, Nash is likely to be able to complete light housekeeping. As well, 24-hour attendant care will provide support with light housekeeping tasks. Ms. Farrell also acknowledges that this cost would only apply if and when Nash moves into an independent living situation. Her total cost is $33.90 per hour bi-weekly or $1,762.80 annually. I would discount this amount by 30 percent to account for the fact that I find the rate to be high and that, for the moment, Nash is living at home and may continue to do so for a period of time. My total is $1,233.96, which I round to $1,230 per year.

iii. Moving costs

[89] Ms. Farrell suggests that Nash will require assistance with moving, including packing and unpacking, given his issues with behaviour and cognition. She estimates that he will move two to four times in his lifetime and proposes a fixed total cost of $1,500, which I accept as reasonable.

iv. Psycho-vocational evaluation and volunteer placement

[90] Ms. Farrell recommends that Nash undergo a psycho-vocational evaluation to determine suitable activities for him based on his cognitive abilities, aptitudes, and interests. She further recommends a vocational counselling/volunteer placement program, which would assist him to secure a community-based volunteer work trial. I accept these recommendations, as they would provide Nash with purposeful and meaningful activity, given his inability to work in a paid capacity, as discussed below. I have no basis to question the estimates provided by Ms. Farrell for these one-time costs, which she quotes as $3,000 to $4,000 for the evaluation and $2,500 for the volunteer placement program. Given that these costs are high, and it is not guaranteed that Nash will take advantage of this opportunity, I choose the lower amount for the psycho-vocational evaluation, for a total one-time cost of $5,500.

v. Occupational therapy

[91] Ms. Farrell recommends that Nash receive occupational therapy to assist him in activities of daily living and exploring avocational and recreational pursuits. Specifically, she recommends one and a half hours of treatment sessions monthly for four to five years. This would assist Nash with strategies to maximize safety and functioning in his activities of daily living, as well as promote independence. It would also provide support for him to explore avocational and recreational activities, which a RT then would support (as described below). Ms. Farrell also recommends one and a half hour sessions two to three times per year, plus three to four hours per year of medical co-ordination to monitor Nash’s functioning, liaison with the team, supervise the rehabilitation therapy programming, etc. I accept these recommendations. At an hourly rate of $112.50 plus travel time, and permitting 54 sessions, the total cost of the initial sessions would be $19,257.75. I would also allow $1,285.31 per year for life for the remaining support.

vi. Rehabilitation therapy

[92] Ms. Farrell recommends the services of a RT to assist in developing and implementing strategies introduced by the OT. This recommendation is supported by Colleen Ristok, a recreational therapist who provided recreational therapy to Nash through the Five Counties Children’s Centre when he was eligible for those services, prior to turning 18. Ms. Ristok reports that Nash appeared to enjoy the social and recreational activities but required high levels of support. He also experienced two to three seizures during groups.

[93] Ms. Farrell recommends rehabilitation therapy support three hours per day, five days per week until age 40, then three hours per day, two to three times per week for life. However, she notes that Nash is at risk of atrophy effects and deterioration as he ages. Should this occur, rehabilitation therapy services may no longer prove beneficial.

[94] There are two ways in which, in my view, Ms. Farrell’s estimates should be reduced. First, she acknowledges that there is a risk Nash will use the services less as he ages. Second, as acknowledged in Ms. Farrell’s report, the travel time she has incorporated assumes Nash will continue living in his current location. Should he move closer to these services, the travel time would lessen. Ms. Farrell’s total annual cost for the rehabilitation therapy services to age 40, including travel time, is $36,422.40. I factor in a 25 percent contingency that the travel time will be shorter during this period, for an annual total of $30,911.40.

[95] For the period when Nash is 40 years and older, I add the same contingency for travel time, plus I discount the likely use of the sessions by 30 percent to account for atrophy and/or reduced interest as Nash ages. The annual total for the period when Nash is 40 years and older then comes to $10,818.99.

vii. Gym membership and personal training

[96] Ms. Farrell recommends that Nash obtain a membership at a fitness facility (e.g. the YMCA) so that he can engage in independent exercise therapy, which he enjoys, and which would promote his wellbeing and independence. She also recommends 12 sessions of personal training to learn the safe use of gym equipment and exercises. The membership is estimated to be $773.40 annually and the personal training would be a one-time cost of $666.70. I accept these recommendations but reduce the personal training to six sessions, given the other supports Nash will have in place for recreational activities (through the RT and OT) and given that he may not choose to engage in a full 12 personal training sessions. Therefore, the fixed cost for the personal training is $333.35.

viii. Psychological counselling

[97] Ms. Farrell recommends, and I accept that Nash would benefit from psychological counselling to provide support around challenging behavioural issues and at times of major life events. Dr. Voorneveld specifically recommended this type of counselling as well. I accept Ms. Farrell’s estimates of bi-weekly sessions for one year, followed by monthly sessions for another year, followed by five to six sessions every two to three years, indefinitely, as reasonable. The cost totals $6,930 for the first 36 sessions and then $423.50 annually for life.

ix. Case management

[98] The purpose of case management as recommended by Ms. Farrell is to co-ordinate Nash’s services, particularly during periods of changes. The case manager maintains contact with the client and also researches resources and co-ordinates services. Ms. Farrell recommends six to eight sessions per year of two to two-and-a-half hours in length, plus travel time, and ten to twelve hours for indirect treatment (e-mails, telephone calls, etc.) for two to three years. This would be followed by two to four sessions per year of two to two-and-a-half hours in length, plus six to eight hours of co-ordination indefinitely.

[99] These numbers strike me as high given the rationale that case management is needed during periods of transition. I accept that case management would be needed immediately for the co-ordination of services but do not find the extent of the services requested to be supported in the evidence. I would reduce these amounts by half, such that the initial sessions would cost $5,285 and the subsequent annual cost would be $1,031.80.

x. Transportation

[100] Currently, Nash’s mother or grandfather drives him to medical appointments. Given that family cannot be entirely relied upon for future care planning purposes, Ms. Farrell recommends an ongoing taxi allowance to facilitate Nash’s attendance at appointments. She also factors in the travel costs of health professionals.

[101] I reduce the claimed costs for taxis by 40 percent to account for the likelihood of family members driving Nash and the contingency that he will move closer to services. This means the fixed cost (for time-limited appointments) is $592. The annual cost is reduced to $1,019.

[102] With respect to the travel costs (mileage) of the health professionals, I reduce those by 25 percent to account for the possibility that Nash will move closer to services. I also reduce the travel costs of the RT by 30 percent for the 40 years and older period and the case manager by 50 percent to account for the 50 percent reduction in services I have set out above. Therefore, the travel costs for the OT are: $2,867.40 (fixed cost) plus $132.75 (annually). The travel costs for the RT are: $12,744 (annually to age 40) and $4,460.40 (annually after age 40 for life). The travel costs for the case manager are: $464.63 (fixed cost) plus $79.65 (annually).

[103] In addition, Nash is motivated to obtain his driver’s licence. Ms. Farrell recommends he pursue this goal once he has been seizure-free for a year. Although that already has occurred, Nash’s mother reports that they have not yet investigated medical clearance for him to obtain a licence. Although I understand that this is a goal Nash wishes to pursue, Dr. Voorneveld says he should not operate a motor vehicle. I do not read Dr. Voorneveld’s statement to be dependent only on being seizure-free. Instead, I conclude that given his overall brain injury, Nash likely will not be able to obtain his driver’s licence. I do not allow these costs.

[104] Therefore, the total transportation costs add up to annual costs to age 40 of $13,975.40, annual costs after age 40 of $5,691.80, and fixed costs of $3,924.03.

xi. Medication

[105] Nash is currently taking two medications. These are covered through the Ontario Disability Support Program, though he is responsible for a $2 co-payment. This calculates to $24.33 annually for each medication per year for life, or a total of $48.66 per year.

Adjustment for future costs of care

[106] The future costs of care need to be adjusted for their present value, taking into account Nash’s life expectancy. If the Plaintiffs seek a final calculation of the damages I would award (if I am wrong about the limitation on liability applying) I ask that they provide me with the present value of the costs I have approved above with details showing how the numbers are calculated.

[107] A summary of the awards I would make for future costs of care is found at Schedule A to these Reasons.

C. Past and Future Loss of Earnings

[108] Pecuniary damages are intended to put Nash in the position he would have been in but for Robert’s negligence, to the extent that this can be done. This includes an award for income lost as a result of Nash’s inability to work leading up to trial, as well as an award for income loss in the future.

[109] I accept that Nash’s injuries impacted his ability to complete his schooling in any meaningful way and that he is unable now to work.

[110] Prior to high school, Nash continued in school with individual accommodations and receiving low grades, though he benefitted from a full-time EA. In high school, he no longer had the assistance of a full-time EA. This had a tremendous impact on his attendance, in that he frequently would leave the school property. In addition, on two occasions during that period he disappeared and did not return home until the following day. Although Nash was able to complete high school, due to his significant absences and academic struggles he required an additional year to do so.

[111] Nash now is unable to work in any capacity due to his need for constant supervision to keep him on task and to keep him safe. I already have addressed his need for 24-hour attendant care. In addition, the evidence specifically in the context of an educational or work setting includes that, during high school, Tracy was required to walk Nash to school each day and pick him up at the end of the day. She also had to call the police to locate him on two occasions. During a co-op placement, Nash worked at a restaurant but was unable to work without close supervision. For example, he would regularly leave work in the middle of his shift and not return. I accept Dr. Voorneveld’s comments as follows: “There would also be safety issues in any work or volunteer endeavour, and even if he were to consider some form of volunteer work, as was with his high school co-ops, he would require constant supervision.”

[112] Given that Nash was a child when the accident occurred, I am not able to look at his earning history prior to the accident to estimate his loss of income up to and beyond the trial. As set out in K.M. v. Marson, 2018 ONSC 3493, at para. 612: “Assessing income loss is often an inherently speculative exercise, particularly where the plaintiff has not yet begun his or her career at the time of the tortious events.” The amount that Robert should be required to pay depends on Nash’s likely career path had the accident not occurred.

[113] In cases where the injured person is a child, courts have considered the family’s level of education and employment experience as a benchmark for determining the plaintiff’s likely path: see Crawford (Litigation Guardian of) v. Penney, 2003 CanLII 32636 (Ont. S.C.), at para. 292; Granger (Litigation Guardian of) v. Ottawa General Hospital, 1996 CarswellOnt 2252 (C.J.) at para. 220.

[114] Here, Nash’s father and brother have careers in the trades. Tracy works as an accountant in her father’s company. Using this information as guidance, I find it reasonable to assume that Nash would have obtained employment commensurate with having completed an apprenticeship or having obtained a trades certificate or diploma.

[115] I have reviewed the report provided by an expert retained by the Plaintiffs, Gary Principe. Mr. Principe is a chartered professional accountant and chartered business valuator. I accept that he is qualified to provide his forensic accounting opinion to assist in this proceeding.

[116] Mr. Principe’s report provides the court with two potential scenarios with respect to Nash’s past and future loss of income. In the first scenario, Nash would have completed high school and entered the work force by 2017. He would have generated income in line with the average earnings of males with a high school education working on a full-time basis in Ontario until retirement at age 65. In the second scenario, Nash would have completed high school and some post-secondary education to enter the workforce by September 1, 2018. He would have generated income in line with the average earnings of males with an apprenticeship or trade certificate or diploma on a full-time basis in Ontario until retirement at age 65.

[117] Given the careers of Nash’s parents and brother, I find the second scenario to be the most realistic. I accept Mr. Principe’s use of an anticipated retirement at age 65. However, I do not accept that “fringe” or non-wage benefits from employment should be calculated as 16 percent of Nash’s estimated earnings. Although Mr. Principe has provided some general support for the significance of non-wage benefits, he has not justified the number of 16 percent. I would instead use 10 percent, which has been recognized by courts in wrongful dismissal cases: see, for example, Bassanese v. German Canadian News Company Limited et al, 2019 ONSC 1343, at para. 27.

[118] I accept Mr. Principe’s use of the Statistics Canada numbers for earnings for all workers who have an apprenticeship or trade certificate diploma.

[119] Mr. Principe appropriately has adjusted Nash’s future income loss for pre-judgment interest, contingencies such as illness or unemployment, and present value.

[120] Based on the evidence Nash provided at trial, as well as the report of Dr. Voorneveld, I also accept that given the severity of Nash’s cognitive impairments, there is a real and substantial possibility that he will never have the opportunity to form or maintain a permanent relationship or marry. He therefore is unlikely to obtain the financial benefits from such a union, such as increased income, shared expenses, and shared homemaking: see Walker v. Ritchie, 2005 CanLII 13776 (Ont. C.A.), at paras 53-54. I accept Mr. Principe’s calculations that Nash has lost the benefit of sharing 60 percent of his potential spouse’s after-tax income, subject to negative contingencies based on average marriage and divorce statistics. This calculates to a loss of $105,500 over the course of Nash’s lifetime.

[121] To arrive at the final calculation for Nash’s past and future loss of income, I ask that the Plaintiffs provide the court with a re-calculation of the past and future loss of income under the second scenario, applying non-wage benefits of 10 percent rather than 16 percent.

[122] I accept Mr. Principe’s estimate of Nash’s guardianship needs. Nash does not have the capacity to manage property or personal care and he requires a guardian of his property/estate. The guardian would ensure the safekeeping of monies, establish a long-term financial plan, and arrange for investment of Nash’s funds. In addition, the guardian would retain a solicitor to provide advice, apply to the court where necessary, and attend on motions for directions and passing of accounts, among other things. I accept Mr. Principe’s assessment of average annual costs, including for personal care ($2,500), legal fees ($7,000), disbursements (3 percent) and a management fee (0.2 percent of the fund balance).

[123] I ask that the Plaintiffs provide calculations of the guardianship costs taking into account the revised past and future loss of income described above.

D. General Damages

[124] General damages are awarded to a plaintiff for non-pecuniary loss. General damages compensate plaintiffs for factors such as pain and suffering, loss of amenities, and loss of expectation of life.

[125] Non-pecuniary damages should be fair and reasonable. In Andrews, the Supreme Court of Canada set the upper limit for general damages at $100,000, adjusted for inflation. The upper limit currently is approximately $390,883, which is the amount the Plaintiffs claim.

[126] In assessing general damages, if injuries can fairly be described as having a catastrophic or devastating impact on the plaintiff, maximum general damages are appropriate: see Dann v. Chiavaro, 1996 CarswellOnt 2199 (Gen. Div.), at para. 94.

[127] Here, in my view, Nash’s injuries can be characterized as catastrophic. I have concluded that he is not capable of obtaining paid work, he requires 24-hour attendant care, and he likely will never form a permanent relationship or marry. He has a seizure disorder and permanent, serious cognitive defects. His injuries have had a devastating impact on his life. I award the maximum of $390,883.

E. Tracy’s Claim for Damages

[128] Section 6(1) of the MLA permits “dependants” of an injured person to maintain an action for their losses and damages arising from the person’s injuries. Under s. 6(3), this includes an amount to compensate for the loss of guidance, care, and companionship. Pursuant to s. 4I of the MLA, the mother of the injured person meets the definition of a dependant.

[129] The Ontario Court of Appeal indicated in 2001 that the high watermark for damages for loss of care, guidance, and companionship is $100,000: see To v. Toronto Board of Education (2001), 2001 CanLII 11304 (ON CA), 55 O.R. (3d) 641 (C.A.). This amount was awarded in 2008 for a child who suffered a severe brain injury: see Sandhu (Litigation Guardian of) v. Wellington Place Apartments, 2008 ONCA 215. In this case, Tracy similarly claims $100,000 (not claiming an increased amount for inflation). I accept this amount as appropriate. Although I did not hear extensive evidence at trial regarding Tracy’s relationship with Nash prior to the accident, I infer from all the evidence that this is a close family. Since Nash’s accident, Tracy has devoted her life entirely to him. In addition, the evidence is that Nash’s injuries have harmed his relationship with his brother, which is upsetting for Tracy. Nonetheless, Nash’s brother has assisted in caring for him. Tracy’s life has been altered significantly as a result of the accident in that she has provided Nash with care around the clock. Further, although she continues to be close with Nash, the nature of their relationship is very different from what it would otherwise have been, given his limitations.

F. Total Damages Award and Aggregate Damages

[130] Nash’s total damages as set out above are well over $1,000,000. Tracy is entitled to damages of $100,000.

[131] I have considered whether the limitation on Robert’s liability means that he cannot be ordered to pay more than $1,000,000 in the aggregate. In this respect, I have considered whether the $1,000,000 must include Tracy and Nash’s claims. I have also considered whether the $1,000,000 is the total liability for the incident for all Defendants and must include the amount arrived at in settlement with Mr. Hamilton. I conclude that it must include both Nash and Tracy’s claims but not the amount paid by Mr. Hamilton.

[132] Section 29 of the MLA is worded to address the “maximum liability for maritime claims that arise on any distinct occasion” (emphasis added). The focus is on the maximum liability for an occasion, rather than, for example, with respect to a particular person’s injuries or losses. Article 9 of the Convention, while not directly applicable, supports this interpretation. It states at paras. 1 and 2 that the limitation on liability determined in accordance with arts. 6 and 7 “shall apply to the aggregate of all claims which arise on any distinct occasion”. Articles 6 and 7 do not apply to the non-public, non-commercial situation here. Still, they apply to other provisions of the MLA that also address maximum liability on “any distinct occasion”. I interpret the reference to maximum liability on any distinct occasion in s. 29 to be consistent with other parts of the statute. Therefore, Robert’s $1,000,000 limitation on liability captures the claims of both Tracy and Nash.

[133] However, I find that the settlement amount paid by Mr. Hamilton to resolve this matter should not be deducted from the $1,000,000. By order dated October 9, 2019, Wilson, J. ordered that Mr. Hamilton was to pay Nash the sum of $57,500. Because Mr. Hamilton did not participate in the trial, neither he nor the Plaintiffs addressed whether the limitation on liability set out in s. 29, nor the bar on the limitation set out in art. 4 of the Convention, applied to him. In these circumstances, I do not find that he is covered by the limitation on liability and I do not include the settlement funds paid by him as part of an aggregate amount.

[134] Therefore, Nash and Tracy are entitled to recovery from Robert in the aggregate amount of $1,000,000. In terms of dividing that amount between them, although I have not yet arrived at a total calculation of the damages that would be due to Nash should I be wrong about the limitation on liability applying, it is clear that his total damages are many millions of dollars. Tracy’s damages of $100,000 are a fraction of the amount owing to Nash. I am not able to be precise about the proportion owed to each of them of the $1,000,000 but Nash should receive the vast majority of it. I find that $990,000 of the $1,000,000 should be paid to Nash and $10,000 should be paid to Tracy. This will allow Tracy to receive an amount that is more than nominal given the significant impact of this accident on her relationship with Nash. If I am wrong about the limitation on liability applying, Tracy is entitled to an award of $100,000.

Disposition

[135] I order Robert Woodbury to pay $990,000 to Nash Woodbury and $10,000 to Tracy Lillico. If the Plaintiffs require final numbers with respect to the damages to which Nash would have been entitled if the limitation on liability did not apply, they may provide me with the further calculations referenced in these Reasons within 60 days.

Costs

[136] The Plaintiffs have provided me with a Bill of Costs in which they seek costs on a substantial indemnity basis in the amount of $289,489.41. The Plaintiffs may provide me with brief written submissions justifying the amount sought, taking into account my conclusion in these Reasons that the limitation on liability in the MLA applies to their claim. These submissions should be provided within 60 days of the date of this decision if the Plaintiffs are also seeking a final calculation of the damages. Otherwise, they should be provided within 30 days.

Released: June 24, 2021