If my PTSD is so debilitating that I cannot manage my affairs, should the defendant have to pay for the expense of managing my finances?
In the decision of Hans v. Volvo Trucks North America Inc. (2017 BCSC 555), Mr. Justice Davies had previously awarded over $4.8 M to a couple injured when the electrical system in their Volvo semi-truck completely failed, causing a terrifying crash. The original decision on damages and liability can be found here. The husband suffered severe PTSD as a result of the experience, ultimately resulting in three suicide attempts. After the first attempt, he required 24-hour supervision from his wife and close friends. According to the evidence, his wife basically babysat him: putting out his clothes for the day, ensuring that he ate, cleaning him, and even reminding him of basic hygiene. His cognitive functioning was poor, as was his memory and ability to concentrate.
In today’s decision, the parties agreed that the defendant should have to pay for the financial management of Mr. Han’s award. The main issue in today’s decision was the level of financial management necessary. The defence (Volvo) argued that “Level 2” financial management was appropriate. Level 2 provides “an initial investment plan and a review of the investment plan approximately every five years through the duration of the award”. On behalf of Mr. Hans, his counsel submitted that “Level 4” financial management was appropriate. Level 4 provides “full investment management services on a continuous basis, including custody of the fund, accounting, and discretionary responsibility for making and carrying out investment decisions. …(a person requiring these services) is likely to be mentally incapacitated or otherwise incapable of managing personal financial affairs”.
In concluding that Level 4 financial management was appropriate, Mr. Justice Davies considered the factors reproduced below. He went on to award $560,200.00 for the financial management of the award, relying on the “probability of survival or probability of death” model employed by plaintiff economist Mr. Robert Carson.
[21] The Volvo defendants take the position that Level 2 assistance is appropriate because “there is insufficient evidence that Mr. Hans suffers from a serious cognitive impairment which prevents him from comprehending any financial investment advice and, in any event, Mrs. Hans who the Court has found to be intelligent and savvy is available to provide some guidance to him.”
[22] I have concluded that the Volvo defendants’ submissions do not sufficiently address the extent of Amandeep Hans’ proven cognitive impairment as evidenced by the totality of the lay and psychiatric evidence at trial that I have accepted.
[23] In part, as with their submissions at trial, in making their submissions the Volvo defendants rely upon video surveillance evidence which they say shows Mr. Hans “behaving normally in several routine day-to-day activities”. That submission flies in the face of my finding at trial with respect to the lack of probative value of that evidence. It also says nothing about Mr. Hans’ financial management capabilities.
[24] In support of its positon the Volvo defendants have also asserted that the fact that no committee has been appointed to manage the plaintiff’s financial affairs “suggests strongly that (a) a committee is not required because (b) Mr. Hans is capable of managing himself and his affairs”.
[25] In my view no such inferences can be drawn based upon the totality of the evidence in this case. The Volvo defendants cited no authority in support of the argument advanced, and in my opinion a requirement to appoint a committee to establish the need for financial management under Level 4 would unreasonably elevate the level of management assistance needed before Level 4 management can be found to be necessary.
[26] I am also satisfied that although Pavandeep Hans is a resourceful and capable business person the Volvo defendants have not provided evidence capable of showing that any guidance she can offer her husband overrides his proven cognitive and functional disabilities. Further, as I stated in the Original Judgment in rejecting the argument that Amandeep Hans’ cost of future care award should be reduced because of the availability of assistance from his wife, there is no certainty that the marriage will last forever.
[27] I am accordingly satisfied that the totality of the evidence supports a finding that Amandeep Hans requires Level 4 financial management assistance and should be compensated accordingly.
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