Chowdhry v. Burnaby (City of),


2008 BCSC 1337

Date: 20081010
Docket: M061993
Registry: Vancouver


Shanker Chowdhry



City of Burnaby and Brian George Kehoe


Before: The Honourable Mr. Justice Curtis

Reasons for Judgment

Counsel for the Plaintiff

R. Brian Webster, Q.C.
& Daniel F. Corrin


Counsel for the Defendants

Scott B. Stewart
& Callum G. Kelly


Date and Place of Trial:

April 14-18, 21-25,
June 3 and 4, 2008


Vancouver, B.C.

[1]                Shanker Chowdhry claims damages for personal injuries caused in a motor vehicle collision that occurred August 19, 2005 at Cariboo Road in Burnaby.  Liability is admitted by the defendants.  There is no issue that Mr. Chowdhry who was 64½ years of age at the time, suffered post traumatic stress disorder and a major depression as a result of his injuries.  What is in issue in the nature and extent of his current condition and the degree to which improvement may occur in the future which bears upon the appropriate quantum of damages for pain and suffering, past and future loss of income, future care costs, and an in-trust claim made on behalf of Mr. Chowdhry’s wife.

[2]                On August 19, Mr. Chowdhry was driving a Honda Civic north on Cariboo Road in Burnaby.  He had borrowed a drill from his brother-in-law and was on the way back to the car dealership where he worked.  It appears Mr. Chowdhry was speaking to his wife on his cell phone at the time of the collision.  The cell phone records show that he placed a call to his home number at 10:45 a.m. that morning, which would be very close to the time of collision.  Mr. Chowdhry suddenly found himself confronted by a City of Burnaby garbage truck coming toward him around a curve at high speed and out of control.  Mr. Chowdhry saw the truck was tipping over toward him and drove to the extreme right of the road.  He released his seat belt and tried to get out the passenger door.  Before he could do that, the garbage truck fell on his vehicle, crushing the driver’s door and the left front wheel area of the Civic and smashing the windshield on the driver’s side as show in the following picture:

[3]                Abdul Touffaha was driving the car behind Mr. Chowdhry when the collision occurred.  He said that after the accident, he saw Mr. Chowdhry lying on the floor in his car, unconscious, with his cell phone ringing in his hand.  He tried to talk to him but got no response.  A woman also tried to talk to him and Mr. Touffaha tried to rouse him by screaming, “Sir can you hear me, can you hear me?”  Mr. Chowdhry testified that after the crash, he heard some people shouting, asking his name.  His next recollection was hearing a loud voice telling him he was in the Royal Columbian Hospital.

[4]                According to Mr. Touffaha, the ambulance arrived in eight to ten minutes.  The ambulance crew report in evidence records arrival at the scene at 11:00 a.m.  The ambulance records state that Mr. Chowdhry was extracted from his vehicle by a passenger from the garbage truck and was found by the ambulance crew supine on the ground.  The ambulance crew report records Mr. Chowdhry’s state of consciousness according to the Glasgow Coma Scale at 9 upon their arrival and “6CS = 4, 5, 6, 15 upon arrival @ RCH possible cultural/stress reaction??”  The ambulance crew administered 25 mg of gravol intravenously for nausea.  Hospital records prepared at 11:20 record somewhat confusingly LOC at scene – GSC 10 on arrival”, without revealing whether that score was when the ambulance crew arrived at the scene or Mr. Chowdhry arrived at the hospital.  The former seems the likely interpretation.  Subsequent hospital records show GCS at 13 at 11:45 and 14 at 12:15 p.m.  The nurses’ notes record that Mr. Chowdhry was released that day at 3:45 p.m. “ambulatory with family”.

[5]                The physical injuries that Mr. Chowdhry sustained in the collision were soft tissue injuries to his neck, back and left shoulder and an injury to a finger requiring a splint.

[6]                Mr. Chowdhry was driven home from the hospital by wife and his brother-in-law.  At home, he stayed in bed.  He had several incidents of urinary incontinence at night.  August 20th, he was taken back to the hospital by ambulance because of dizziness, nausea, vomiting and headaches which were getting worse.

[7]                There is no record of a specific impact or injury to Mr. Chowdhry’s head during the collision except that a large amount of glass was found embedded in his scalp and removed in the hospital.

[8]                Mr. Chowdhry saw his family doctor of 14 years, Dr. Ableman, August 22, 2005.  Dr. Ableman recorded his complaints on initial presentation as pain in his head, shoulders, neck and with tenderness in his neck and back.  Dr. Ableman goes on in his report of July 6, 2007 to describe Mr. Chowdhry’s medical situation as follows:

… What was more substantial was his cognitive abilities to relate to me, given that I have known him so long.  It was in my opinion quite notable that this patient had suffered a closed head injury with likely post traumatic stress syndrome.

This patient attended my office on the following dates: August 25, 29, September 3, 12, 21, October 6, 27, November 17, December 15, 29, 2005 January 20, February 7, March 15, 28, April 28, May 12, June 12, July 12, August 15, September 19, October 4, 2006, January 8, March 13, April 3, 27, May 18 and June 20, 2007.

This patient throughout these visits was significantly incapacitated, as he had to be driven to my clinic accompanied by a family member, who for the most part spoke on his behalf.  It seemed that he was able to communicate, but in a somewhat state of shock.  He was substantially incapacitated on an emotional level with an inability to walk properly and he was immediately on returning to the office referred to Dr. Jeff Beckman, who is a Neurologist.  He was also referred to a Psychiatrist, Dr. C.L. Pole.  His complaints during his course of multitude of visits were of ongoing headaches, neck and back pain, and complaints by his family of personality change, where he just was able to communicate and was just staring into space requiring initiation for just about all activities for daily living.  It was felt that perhaps he had sustained a subdural hematoma; however, a CT scan was negative.  Of a lesser concern was his headaches and musculoskeletal pain, given the magnitude of his personality change noted by all.  He began to take medication for anxiety, as well as reactive depression, namely Zoloft 25 mg at bedtime and Flexeril, which is a muscle relaxant, which was given at a ½ tablet at bedtime.

His sleep was improved with these medications, but he continued to have problems with his reactive depression.  He was also referred for physiotherapy to address his musculoskeletal soft tissue injuries.  He was also seen initially by Dr. Oduwole a Psychiatrist, who treated him with Celexa.  He continued to experience serious flash backs as well as emotional difficulties.  He started to see Dr. Pole, Psychiatrist for psychotherapy in November 2005.

[9]                Dr. Ableman gave evidence at trial.  He had known Mr. Chowdhry quite well before the accident.  He testified he had never seen such a radical change in personality.  He said Mr. Chowdhry was literally catatonic, with a very vacant affect and noted in his words in October 2005, “previously very dynamic man came in in a catatonic state.  I have never seen this in all the years I have practiced, this one stands out in all my MVAs.  He literally can’t communicate.  You want to shake him and say wake up.”

[10]            Dr. Ableman testified that Mr. Chowdhry was catatonic for six months and made very poor, very slow progress.  He described him as going though the motions doing things but said, “I really didn’t see he had any purpose.”  At trial, Dr. Ableman said he saw a very slight improvement in communication in November, 2007.

[11]            Mr. Chowdhry appears to have made a reasonable recovery from his physical injuries.  He finished his course of physiotherapy in March 2006 after six months.

[12]            As recounted by Dr. Ableman in his report, Mr. Chowdhry was referred to psychiatric treatment to Dr. Pole.  Dr. Pole prepared a report of July 27, 2007 and testified at trial.  Dr. Pole’s diagnosis of Mr. Chowdhry’s condition was major severe resistant depression and post traumatic stress disorder caused by the car accident.

[13]            Dr. Pole treated Mr. Chowdhry with medication and what he described as support psychotherapy.  In his opinion, Mr. Chowdhry still has moderate depression that will likely get better to some extent, but is permanently disabled by depression and post traumatic stress disorder such that he will not be able to work for the rest of his life.

[14]            Dr. Beckman, a neurologist, to whom Mr. Chowdhry was referred by his family doctor saw Mr. Chowdhry September 15, December 19, 2005, May 12 and June 26, 2006.  Dr. Beckman is of the opinion, expressed in his letter of July 12, 2007 that Mr. Chowdhry is not suffering from a traumatic brain injury.

[15]            Dr. le Nobel, a specialist in Physical Medicine and Rehabilitation, saw Mr. Chowdhry June 19, 2007 at the request of Mr. Chowdhry’s lawyer.  In Dr. le Nobel’s opinion, Mr. Chowdhry has intermittent symptoms of headache, contributed to by depression as a result of the accident, pain in his left shoulder due to rotator cuff tendinitis, mechanical low back pain, contributed to by the accident, and interference with his sleep due to a number of factors, including symptoms of his motor vehicle injuries.  Dr. le Nobel states in his opinion:

Some improvement is reasonably anticipated.  I would anticipate that the majority of the benefit with respect to his physical symptoms would be achieved by carrying out the above modified exercises on a regular basis, over a period of six to eight months.  I am not anticipating surgery will likely be of help to him.  Regrettably, a full return to all his prior capabilities in a symptom free state is not definite.  In that respect, his prognosis is best to be guarded.

[16]            Mr. Chowdhry’s counsel also referred him to Dr. Passey, a psychiatrist, for a medical/legal opinion concerning his psychiatric state.  Dr. Passey, in his report of February 13, 2008, is of the opinion that Mr. Chowdhry suffers from chronic post-traumatic stress disorder, a major depression disorder and a traumatic brain injury.

[17]            Dr. Passey writes:

As a result there can be a significant overlap of symptoms between PTSD, depression and a mild traumatic brain injury.  I agree with Drs. Pole, Teal, Wiseman, Beckman and Ableman who diagnosed that he suffered a mild traumatic brain injury.  I disagree with Dr. Wiseman and Teal in that because of the significant overlap of symptoms among these three diagnoses I believe it is not medically possible to determine whether the above listed symptoms are due strictly to the psychiatric diagnoses or are at least partially due to residual physical damage from the mild traumatic brain injury.  Given the chronic serious nature of his two psychiatric diagnoses and the significant possibility of chronic mild traumatic brain injury symptoms it is most probable that his current residual symptoms will be life long.

And further:

I believe there is a consensus among the various medical doctors involved in this case that Mr. Chowdhry did not have any brain dysfunction, chronic pain or physical limitations prior to the MVA on August 19, 2005.  Further, his diagnoses and dysfunction occurred after the MVA and there is not any evidence of any other etiology to explain the evolution of these aside from the MVA.  There is thus a causal relationship between the MVA and the diagnoses, significant symptoms, dysfunction and limitations in his life.  I am not able to clearly distinguish how much of Mr. Chowdhry’s symptoms and dysfunction are due to the chronic effects of a mild traumatic brain injury, residual PTSD chronic symptoms or residual depressive symptoms because of the overlap of symptoms between each of these distinct disorders.  There is clear evidence that he did suffer a closed brain injury at the time of the accident.  As a result he was at increased risk of developing depression (reference 10 & 11) , which he did.  In addition, there is a high co-morbidity rate (about 48%, reference 7) of PTSD and depression.

[18]            Dr. Passey summarizes his opinion as follows:

In summary, as is often the case, Mr. Chowdhry has a comorbid major depressive disorder with the PTSD.  In addition, it is quite possible that he has residual symptoms of a mild traumatic brain injury.  These were all directly caused by the MVA on August 19, 2005.  This is a very bad combination of diagnoses and his prognosis for the future is quite poor given the significance of his symptomatology more than two years after the accident despite his treatment.  From my long and extensive experience assessing and treating patients with chronic PTSD (treatment that can last for years) it is my opinion that he is unlikely to improve significantly in his level of function for the future.  Further trials of various antidepressants and augmentation strategies are certainly worth trying but are unlikely to result in further significant improvement.  This is partly due to the difficulty of pharmacology successfully treating chronic PTSD that has co-morbid Major Depression.

Even with further specific cognitive behavioural therapy and exposure (best treatment regime supported by research evidence) Mr. Chowdhry is unlikely to get further significant improvement because it is now over two years since the MVA and initiation of treatment by Dr. Pole.  There is also the significant possibility of residual symptoms of mild traumatic brain injury that is now unlikely to improve with any type of treatment, especially given his age.  In this regard I disagree with Dr. Wiseman’s opinion for prognosis and thus agree with Dr. Pole’s opinion that Mr. Chowdhry has a poor prognosis.  It is important that he remain physically active as this can be part of the treatment regime for his disorders but I do not feel that he would probably improve significantly in regards to brain function with any further treatment.

Mr. Chowdhry’s level of dysfunction will continue to be present and vary somewhat according to his overall stress level, exposure to major triggers (reminders of the MVA), access to appropriate therapy and ability to exercise regularly.  He will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for competitive employability for the foreseeable future.  It is highly unlikely that he will recover enough to be able to realistically consider any future gainful employment.  Even if possible, the employment would be at best need to be on a casual type basis rather than full or part time.  He would remain at risk to have potentially extended periods of absences due to his psychiatric diagnoses.  Of course the likelihood of extended periods of absence would render him much less desirable as a possible employee and diminishes his possibility of being hired.  He would also be excluded from most if not all extended health programs provided by employers because of his pre-existing conditions.  This would further disadvantage him versus a normal employee.

[19]            Dr. Passey testified at trial.  His evidence did not suggest that his opinion at trial was any different from that quoted.

[20]            Mr. Chowdhry was assessed May 4, 2007 by Dr. Teal, a neurologist, at the request of defence counsel.  Dr. Teal concluded that Mr. Chowdhry probably did sustain a mild traumatic brain injury but went on to state:

It is my opinion that Mr. Chowdhry has not sustained persisting cognitive impairment as a result of traumatic brain injury.  In evaluating the response to injury, it is important to differentiate the neurological/neuropsychological deficits arising from a traumatic brain injury from psychological disorders or symptoms arising from the traumatic events or symptoms arising from pain, or mood or sleep disturbance.  It is my opinion that his subjective symptoms of forgetfulness and memory disturbance, which have been quite mild, are most probably due to a posttraumatic stress disorder and sleep and mood disturbance, and possibly medications have contributed.  Mr. Chowdhry will not have any long-term cognitive sequelae as a result of a neurological injury.

And at the end of his report:

From a neurological perspective, Mr. Chowdhry has no persisting restrictions or limitations.  Neurologically, he is able to resume all pre-accident activities.  His current limitations and restrictions with respect to work, driving, recreational and domestic activities are not based on residual neurological deficits or injuries.  I will defer his prognosis and treatment for his subjective symptoms of post-traumatic stress disorder and his depression and anxiety to a psychiatric evaluation.

[21]            Dr. Stephen Wiseman, a psychiatrist, examined Mr. Chowdhry for the purpose of a medical-legal opinion July 9, 2007 at the request of counsel for the defendants.  Dr. Wiseman, in his report of July 10, 2007, finds that Mr. Chowdhry developed a clear cut, moderate to severe, full-blown Post-Traumatic Stress Disorder directly on account of his motor vehicle accident.  He also finds Mr. Chowdhry clearly developed mood symptoms consistent with the diagnosis Major Depressive Disorder.  Dr. Wiseman comments:

Most compellingly, clinicians have described Mr. Chowdhry as suffering from “psychomotor retardation”, an objectively observable slowing down of speech, movement and cognition entirely consistent with serious depressive illness.  In my own evaluation of Mr. Chowdhry, he clearly continues to manifest psychomotor retardation in all its facets, despite an apparent recent improvement in his depressive symptomatology.

[22]            In Dr. Wiseman’s opinion:

      - it is probable but not certain that Mr. Chowdhry received a concussion, or mild traumatic brain injury, within the context of his MVA.  Such an injury would be very unlikely to have permanent effects, and in my opinion there is no evidence in this case that the organic, biological effects of a concussion have affected Mr. Chowdhry on an ongoing basis.

[23]            Dr. Wiseman noted Mr. Chowdhry at the time of his examination as “improving somewhat” but concluded that the effects of his psychiatric condition would have precluded his employment to that date.  Dr. Wiseman stated:

At present, in my opinion, Mr. Chowdhry has improved somewhat, but he still remains too impaired functionally to successfully return to his place of employment even part time.

[24]            Dr. Wiseman recommends that Mr. Chowdhry continue his treatment with Dr. Pole.  He also strongly recommends augmenting Mr. Chowdhry’s recovery with a full course of 12 to 16 sessions of Cognitive Behavioural Therapy as provided by a Ph. D.- level clinical psychologist.

[25]            In Dr. Wiseman’s opinion, such therapy would significantly increase Mr. Chowdhry’s chances of one day returning to paid employment.  Dr. Wiseman also recommended Mr. Chowdhry have a personal trainer for at least several months.

[26]            At paragraph 10 of his report, Dr. Wiseman states:

Given the severity of Mr. Chowdhry’s symptomatology, and his advancing age, there is still a significant chance that he may not return to his job.  At this point, however, given the above treatment recommendations, his recent improvements, and his clearly strong levels of motivation, I would opine that returning to at least part-time work is probably more likely than not for Mr. Chowdhry.

[27]            In Dr. Wiseman’s opinion, cognitive behavioural therapy is a type of therapy holding considerable promise for Mr. Chowdhry.  It is Dr. Wiseman’s opinion that Mr. Chowdhry has not had such therapy to date and for that reason cannot fairly be described as having a treatment-resistant condition.  Dr. Wiseman for that reason foresees more chance of significant recovery than Dr. Passey.

[28]            The evidence of Mr. Chowdhry’s relatives and friends consistently portrays him as having suffered a major personality change following his injury.  His daughter, Nita Chowdhry, lives with her parents and attends university.  She is hoping to go to dental school but is not sure she will now in light of the dependency of her father.  She described how her father used to be a very engaged and active person getting up at 5:45 in the morning to do an hour’s workout in the gym three to four times per week before coming home to make breakfast for his family.  She described the travelling the family used to do to Fiji, New Zealand, England, India, Australia, New York, California and other places and how much her father used to like, and insist upon driving.  She also described her father as being very social with a large network of friends.  At trial, she described her father as now being physically there but mentally not.  He is no longer engaged with other people, being inattentive and seemingly disturbed by his own thoughts.  He has no desire to speak to anyone.  When it is suggested that he telephone a friend he declines saying he wouldn’t know what to say to them.  Nita Chowdhry also described how her father went from an avid driver to being afraid to even get in a car for the first month, and afterwards bracing himself and being a very nervous passenger.  Now that he has started driving again she says he drives only locally to the gym, Safeways, or the bank which he started about one and a half years after the accident and only with the encouragement of the family.  She says he cannot park anymore and stops or slows and loses his focus when a truck comes near.  Nita says her father now walks very slowly, his memory has deteriorated, he no longer likes public places or social gatherings and is often disoriented and irritable.

[29]            Sneh Chowdhry, Shanker Chowdhry’s wife gave evidence which was consistent with her daughter’s observations.  While her husband was working, she ran a day care business charging $700 per child per month.  She stopped doing so in May 2007 because caring for children and her husband was too much for her.  She testified Mr. Chowdhry sometimes tells her that he does not want to live anymore and says that the relationship between them is almost totally finished.  Mr. Chowdhry is no longer the social, active person he was and no longer does the gardening and home maintenance work he once did.  During her evidence she broke into tears and said, “I need Shanker before he was like that.”

[30]            A similar picture of Mr. Chowdhry’s state was given by his friends who gave evidence, Mr. Kaushal, Mr. Khare and Mr. Thakore.

[31]            Mr. Chowdhry gave evidence at the trial, Tuesday, April 22, 2008, two years and eight months after his injury.  I observed him to walk very slowly, like an old man, to the witness box.  He appeared to be slim, well dressed, and soft spoken but with a voice that was strong and intelligible.  He described his home and work routine before the accident and his interest in fitness which included regular trips to the gym, climbing the Grouse Grind four to five times in a month and running.  Although he now goes to the gym and does some local driving, he has no income and no desire to drive.  He feels dependent upon his family.  He testified he has no interest in talking to his wife, his children or his friends.  He said, “I’m not even thinking.”  He described how in the last week in March 2008 he drove his car to his former employer, Coastal Ford for service.  After everyone greeted him, he froze and was unable to sign the work papers when he was asked to.  Finally the receptionist told him he didn’t have to.  Mr. Chowdhry did agree he had made some progress recently.  He said, “Today I am at least talking to you.  Six months ago I did not have the same concentration.”  He hopes to be able to return to work.  He said prior to his injury his plan was to work 10 or 15 years more, and that he did not even plan to consider retirement until his children’s education was finished.

[32]            Surveillance videos of Mr. Chowdhry for parts of days in June and September 2007 and March 2008 were entered into evidence.  The video shows Mr. Chowdhry doing, among other things, driving, walking with a friend, walking the dog, going to and from and exercising in the gym and going to the bank.  On March 13, 2008, he is seen briefly jogging down the street with his dog and on March 14, 2008, exercising on an elliptical trainer in what seemed to me to be a fairly vigorous manner at about 120 steps per minute.  The surveillance video is consistent with Mr. Chowdhry having made some fairly recent improvement in his condition.

[33]            Although Mr. Chowdhry did not suffer from psychiatric illness previously, he did have some health issues prior to his accident.  These include the following:

- Motor vehicle accident March 11, 1994 with musculoskeletal injury to neck area treated with physio, resolved by July 1994;

- July 1995  hemicolectamy for acute appendicitis;

- 1997 began taking medication for diabetes and high cholesterol;

- motor vehicle accident 1998 resulting in low back and hip pain.  Dr. Abelman’s opinion in a letter of November 17, 2000 was:

My diagnosis is that of acute myofascial injury to the neck and upper back, as well as myofascial injury to the lower back with underlying predisposing grade 1 spondylolisthesis at L5, S1, which contributed to the pain and discomfort in the lower back.  I also believe that there was some sacroiliac joint dysfunction due to the motor vehicle accident with resultant buttock as well as SI joint pain.

My prognosis is guarded at this point in that I have seen over the last two to three months an improvement in his condition, but he most certainly has had significant exacerbations in his neck, as well as lower back according to the type of activity he has been doing.  I believe that at this point I am still fairly guarded because of the underlying spondylolisthesis that this may continue for sometime and may restrict his activities in the future.

-          June 11, 2000 admission to hospital for six episodes of dizziness in one day;

-          November 24, 2001 Burnaby Hospital sharp epigastric and lower sternal pain, similar incidents reported one and three years ago;

-          December 29, 2001 off work for dizziness, weakness and shortness of breath until some time after February 15, 2002;

-          motor vehicle accident November 18, 2003 concerning which Dr. Jaworski reported in a letter of May 4, 2005:

Thank you for asking me to see this 64-year-old right-handed auto fleet manager (office work, driving) with long-standing left-sided neck/shoulder/arm pains.  The pains are present with certain movements such as putting on jackets or raising the arm.  Also, shoulder checks while driving may produce this pain.  On a typical day he has those pains clearly less than 50% of the time.

He links the above pain problem to a trauma he sustained in a motor vehicle accident which took place in Burnaby on November 18, 2003.  He was a driver of a car with seat belts on.  When stationary, his vehicle was hit from the front when he was occupied watching an ambulance passing by.  There was some momentary loss of awareness and later on he felt shaken up.  He was assessed by paramedics and allowed to proceed home after information was exchanged with the other driver.  About a day or two after the accident he began noticing those pains and the problem has been troubling him ever since  There was apparently about $3,000 worth of damage to his vehicle resulting from the accident.

After the crash he was off work for about a week.  He had exposure to physiotherapy with questionable benefit.  He had medications such as pain killers and sleeping pills.

-          September 15, 2004 hospital visit for pain in left anterior shoulder and upper chest; and

-          frequent urination and sleep disturbance related to enlarged prostrate gland.

[34]            One of Mr. Chowdhry’s continuing physical complaints after the accident has been dizziness, which clearly caused him trouble before his most recent injury.


[35]            Shanker Chowdhry has clearly suffered physical and psychiatric injury as a result of the August 19, 2005 collision.  I accept that his injuries caused him headaches, back pain and neck pain and pain in his shoulder.  Likely, he would have had some neck and shoulder problems from his previous condition without the August 2005 injury, however that injury clearly either initiated them anew or made them worse.  The physical problems Mr. Chowdhry suffered because of the August 19, 2005 collision have, by the date of the trial almost three years later, largely resolved as documented in the medical records, however his psychiatric ones have not, and there is an issue that he may still be suffering symptoms of a mild traumatic brain injury in addition to his PTSD and major depressive disorder.  Mr. Chowdhry was clearly rendered unconscious by some degree of impact to his head as evidenced by the ambulance crew reports, Mr. Touffaha’s observations and the glass found embedded in his scalp.  I find that Mr. Chowdhry probably suffered a mild traumatic injury to his brain at the time of the collision.

[36]            Whether or not Mr. Chowdhry still is affected by his mild traumatic brain injury is not clear, particularly because his psychiatric condition can produce the same symptoms at this point.  On the balance of probabilities, I accept the opinion of Dr. Teal, the neurologist, that Mr. Chowdhry has not sustained persisting cognitive impairment as a result of traumatic brain injury, and will not have any long-term cognitive sequelae as a result of a neurological injury.

[37]            I also find, on the balance of probabilities that while Mr. Chowdhry was initially rendered essentially catatonic for the first six months following the collision, he has since that time made significant improvement, and I accept the opinion of Dr. Wiseman that with a course of cognitive behavioural therapy conducted by a specialist in that field, he will continue to make improvements.  On the other hand, I accept that he will likely continue to have problems and symptoms from his PTSD and depression for the rest of his life.  I find that it is highly unlikely that Mr. Chowdhry will be able to return to his employment at Coastal Ford or any other competitive employment.  The medical evidence is that to the date of trial he has been unfit for employment.  He is now 67 years old, an age at which neither the body nor the brain is particularly resilient.  His mental state in my opinion is and will remain too fragile for him to be competitively employed.

[38]            The result of this collision and its consequent injuries to Mr. Chowdhry is that he has lost a large measure of who he was.  While human identity is partially associated with physical ability, it is much more related to a person’s mental state and abilities.  Mr. Chowdhry is quite simply not the man he was.  Rather than being energetically and happily employed as the lease manager for Coastal Ford, he is unemployed.  Rather than being the social outgoing man he was, he is socially withdrawn and has little or no interest in conversing about anything.  Rather than being the patriarch supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and children.  I find there is a real likelihood he will make progress in these areas so that his life is more enjoyable, however I do not think that will extend to re-employment.

[39]            I assess general damages for the loss Mr. Chowdhry has suffered consequent upon the collision for which the defendants are responsible at $200,000.


[40]            The claim for past and future wage loss require analysis of Mr. Chowdhry’s employment history and a consideration of the reasonable possibilities so far as what may have happened had he not been injured.

[41]            Mr. Chowdhry was born in northern India.  He completed his Grade 12 and was one year short of obtaining his Bachelor of Science when his father died.  He moved to Britain and took a four-year hotel management course.  After working in various English hotels, he moved to Canada in 1974 where he worked as a manager of the Fort Garry Hotel in Winnipeg.  He moved to Vancouver with the hotel industry in 1976 where he was approached by Zephyr Motors to work for them which he did as a car salesman and then as a sales manager.  In 1991, Mr. Chowdhry commenced employment with Coastal Ford as the fleet and lease manager, the position he held at the time of his accident.  He enjoyed his work and was a valued employee.  The company had no retirement policy and Mr. Donald Carson testified that Mr. Chowdhry could have worked for his company as long as he could do the work.

[42]            In his position at Coastal Ford, Mr. Chowdhry earned a salary of $1,000 per month plus a 30 percent commission on sales, four weeks holiday and a contribution of 1.5 percent to his RRSP paid by the company.

[43]            Mr. Chowdhry’s employment income, including in the last column an adjustment to “constant 2008 dollar values” taken from the report of Robert Carson was as follows:

























[44]            In the last 12 months before his accident, Mr. Chowdhry earned around $40,000.  If his earnings in 2005 prior to the accident were pro-rated for the year 2005, they would have been about $48,000, however that does not take into account that the automobile model year starts in the fall which may have given better sales in the fall of 2005.

[45]            What has Mr. Chowdhry lost by being unable to work from August 19, 2005 to April 14, 2008?  It is not possible to calculate that with certainty.

[46]            Donald Carson, the president of Coastal Ford testified that construction of the Millennium line of the Skytrain seriously disrupted his business in the years 2000 – 2003.  Construction took place on the company property, sheds were placed on it, toilets put in front of their premises and streets were ripped up.  He also explained that the dealership was involved in a 28-month rebuilding of its premises, the negative effect of which was partially offset by the closure of the company’s closest competition, Zephyr Ford Lincoln in February 2001.

[47]            Mr. Carson testified retail sales increased after Mr. Chowdhry left (18 percent in 2006, seven percent in 2007) and that the dealership had increased its market share in the last 36 months before trial.  The increases he spoke of however were for retail sales which the company has put an emphasis on, rather than fleet and leasing which has a lower margin.  The person the company hired to fill Mr. Chowdhry’s position did not prove satisfactory and Mr. Chowdhry has not been replaced by anyone whose earnings could be used as a comparator.

[48]            It is not appropriate to use 2008 constant dollar figures to calculate past wage loss.  What Mr. Chowdhry lost was what he would have been paid in the years of his loss.

[49]            I find a reasonable assessment of his past loss including benefits is as follows:

August 19, 2005 – December 31, 2005                      $28,000

2006                                                                            $60,000

2007                                                                            $65,000

January 1 – April 14, 2008                                          $18,000

[50]            In arriving at these figures, I have made allowance for the fact that Mr. Chowdhry’s increasing age, and his health as it was before the accident might well have begun to erode his income earning ability.

[51]            Mr. Chowdhry is entitled to judgment on his past wage loss net of income tax.  At the time of trial, counsel advised me that there was some uncertainty as to how the tax ought to be calculated and decided.  Counsel may apply for a ruling on that issue if they cannot agree.


[52]            Mr. Chowdhry claims $650,000 for loss of future earnings and reduced earning capacity on the basis he would have retired around 74 years of age.  I am persuaded by the evidence that it is improbable that Mr. Chowdhry will be competitively employed in the future.  Although he said he had not planned to retire and that he would not have addressed the issue until his children finished their education, that does not mean he would have been successful in what he thought to do.  Mr. Chowdhry had some pre-existing health problems likely to become more rather than less troublesome with age.  He has been under treatment for diabetes and high cholesterol since 1997.  He had pre-existing problems with his neck, back and shoulder which could well have flared up again.  Furthermore, he had had problems associated with dizziness and shortness of breath which caused him to be off work for two or three months in 2002, although interestingly his earnings that years were better than average.

[53]            Any imagined earnings scenario for Mr. Chowdhry is obviously subject to debate, but in order to give some structure to the assessment process, I find it reasonable to conclude that Mr. Chowdhry had a 75 percent chance of earning around $60,000 per year until he was 70, March 11, 2011 and a 25 percent chance of earning that kind of money until he was 75.  In reaching those percentages, using Mr. Carson’s table for present values to Mr. Chowdhry at age 70, I calculate his loss to that date to be 60 x 2,715 = 162,900 which reduced by 25 percent is $122,175.  Mr. Carson’s report setting out present values beyond 70 is not in evidence.  Counsel will need to either agree on the present value of 25 percent of $300,000 or apply to the Court to resolve that.  I award Mr. Chowdhry the sum of $122,175 plus the properly calculated present value of the loss I have allowed from 70 – 75 for loss of future income.


[54]            I find Mr. Chowdhry entitled to recover the following special damages:

1.         Ambulance fees                                                          $   108

2.         Damaged clothing                                                       $   250

3.         Taxi fares                                                                    $     62

4.         Physiotherapy user fees                                             $1,024

5.         Cost of travel to medical appointments                      $1,292.40

6.         Housekeeper                                                               $   419.05

7.         Prescription medication                                              $4,150.19

8.         Lawn cutting                                                                $1,000

9.         Home maintenance                                                    $2,000

[55]            I accept that Mr. Chowdhry could not cut his lawn immediately following his injury and for some time thereafter.  There was evidence that before the accident the Chowdhrys were already paying for some lawn care.  Their prior costs for that were not documented.  The degree to which Mr. Chowdhry can now walk and go to the gym satisfies me that he should now be able to do his lawn and other household chores.  The claim for home maintenance included materials and renovations.  On the evidence, I find the sum of $1,000 for the home maintenance Mr. Chowdhry was unable to do when he was at his worst is recoverable.


[56]            The sum of $250,000 is claimed for cost of future care of Mr. Chowdhry.  Awards for cost of future care should have a medical basis and be reasonable in the circumstances.  The report of Nora Chambers, a Consultant Occupational Therapist, has been submitted in support of Mr. Chowdhry’s claim for future care.

[57]            Mr. Chowdhry will definitely need to continue to have psychiatric care and psychiatric medication probably for the rest of his life.  I accept that Dr. Wiseman’s recommendation that he have a course of cognitive behavioural therapy is reasonable.  I am also of the opinion that a personal trainer would likely assist him both physically and psychologically (depression can be relieved by activity) and that a driver training course would likely be helpful both for his driving and quite possibly his psychiatric state in general.  I also accept that it would be reasonable for Mr. Chowdhry’s wife to attend some counselling sessions both alone and with him because she is a very major part of his care-giving team and I am sure could use some assistance.

[58]            I do not find any basis for awarding amounts for housekeeping or home maintenance.  While I do not think Mr. Chowdhry will be capable of competitive employment, he now has the ability to mow his lawn and do ordinary household maintenance.

[59]            I award Mr. Chowdhry future care expenses as follows:

1.         Cognitive behavioural therapy treatment as                           $5,152
            costed by Mr. Carson.

2.         Education and support counselling to                                    $1,280

            Mrs. Chowdhry – eight sessions at $160.

3.         Family and, or couples counselling –                                     $1,280
            eight sessions at $160.

4.         Personal trainer                                                                      $  720
            for physical conditioning.

5.         Driving course.                                                                        $1,000

[60]            It is my finding that Mr. Chowdhry’s future is not so grim as to warrant the much larger cost of future care claimed on his behalf.  I have not fixed an amount for the future cost of medication as the evidence is that his medication is paid for under the provincial Pharmacare plan.


[61]            An “in trust” claim is made on behalf of Mr. Chowdhry’s wife so that he may compensate her for the extraordinary care she has had to give to him as a result of his injury.  Authority for such an award is found in the case law.  In the case of Brennan v. Singh, [1999] B.C.J. No. 520 (B.C.S.C.) at para. 95, Harvey J. ruled as follows:

95        In my view, it is useful to review briefly the factors which are considered in the assessment of such claims. They are:

(a)        where the services replace services necessary for the care of the plaintiff;

(b)        if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship?

(c)        quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship;

(d)        it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services.

[62]            Those principles were applied in the case of Aberdeen v. Langley, 2007 BCSC 993 where Groves J. referred to the passage quoted above as follows at page 46:

236      This case clearly upholds the principle of full compensation in quantifying the value of the contributions of family members. Damages should be awarded based on the market value of services provided.

[63]            Immediately after the collision, Mr. Chowdhry was in a catatonic state and required a high level of care.  Because he has suffered from a psychiatric condition, he has also required care that extends beyond the usual for injured persons to such things as encouraging his recovery by getting him back to driving, and going to great lengths by trying to get him to socialize.  While going beyond the services normally expected of a spouse, the care he received was not all consuming.  Mrs. Chowdhry continued with her day care business to May 2008, and was able to travel to India while leaving her husband at home in January 2006 for two weeks.  On the facts of this case, I find the sum of $20,000 to be reasonable for the extraordinary care Mrs. Chowdhry has had to provide.

[64]            The issue of costs and any other issues that need to be resolved may be addressed by counsel if necessary.

“V.R. Curtis J.”