IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100322

Docket:
M109666

Registry: New Westminster

Between:

Joanne
Denise Hauer

Plaintiff

And

Justin
Scott Clendenning

Defendant

Before: The Honourable Mr. Justice Slade

Reasons for Judgment

I.        INTRODUCTION

[1]            
The plaintiff sustained soft tissue injuries in
a motor vehicle accident on August 6, 2006.  By the time of trial, her primary
concerns were over persistent low back and shoulder pain.  Although she had
sustained soft tissue injuries affecting her back and shoulder in a 1996 motor
vehicle accident, she had been free of pain symptoms for three years prior to
the 2006 accident.

[2]            
The plaintiff was able to make changes at her
workplace that have enabled her to sustain her pre-accident income level.  However,
work activities, and activities of daily living, result in pain, particularly
in the shoulder.  Orthopaedic surgeons have recommended arthroscopic surgery,
and less invasive treatment modalities.  She has not pursued these treatments,
preferring instead to seek “natural” remedies. 

[3]            
The plaintiff claims general damages, and
damages for past income loss and diminished future earning capacity.  She also
seeks an award for cost of future care. 

II.       ISSUES

[4]            
These are the central issues:

1.       causation of the persistent right shoulder and low back
pain;

2.       the effect of her injuries generally, and the shoulder
injury in particular, on her work capacity, housekeeping, and enjoyment of
life;

3.       whether there has been a failure to mitigate and, if so,
the consequence for the quantum of damages awarded.

III.       EVIDENCE

Plaintiff

[5]            
The plaintiff is now 45 years of age.  Although
she did not continue in school beyond grade 9, she enrolled, in 1998, in a
diploma course to qualify as a classroom and community support worker.  She
graduated in 2001.

[6]            
She has been employed since 1999 with an
organization known as the Community Living Society.  This non-profit
organization provides services to persons with cognitive and physical
disabilities. 

[7]            
At the time of the accident, her duties included
the supervision and coordination of care for two people.  One, L.M., is a
quadriplegic with cognitive challenges.  The other, L.B., is legally blind, and
suffers from physical disabilities that affect her mobility.  She is afflicted
with schizophrenia and Tourette’s syndrome.

[8]            
The plaintiff sustained injuries in a motor
vehicle accident in 1996.  Her car was struck by another from the rear.  She
had soft tissue injuries to the neck, shoulder, and lower back.  She underwent
physical therapy for one year.  Her symptoms had abated by November 1999, at
which time she started her employment with Community Living Society.  She had
been symptom-free for three years prior to the August 2006 motor vehicle
accident.

[9]            
On August 6, 2006, the plaintiff was a front
seat passenger in a mid-sized SUV that, while crossing an intersection,
collided with an automobile that was turning left across the SUV’s lane.  The
SUV was being operated by her husband.  The defendant admits liability for the
purpose of this proceeding only.

[10]        
The impact was significant, causing extensive
damage to both vehicles.

[11]        
The plaintiff was restrained by her three-point
safety belt.  Although winded, and panicky, she did not require transportation
by ambulance to a hospital.  The tow truck driver drove her home.  She was
shaky and upset.  She experienced pain in her right shoulder, from the neck to
the elbow, and in the groin.  She also had a sore foot, and nausea.

[12]        
The plaintiff attended a walk-in clinic the
following day.  She received a prescription for Tylenol 3, and a recommendation
that she also take Advil, an anti-inflammatory.  Shortly after, she saw her
family physician, who recorded complaints of pain to the chest, neck, shoulder,
and upper and lower back.  This was accompanied by nausea.

[13]        
On the advice of her family physician she
remained off work until October 2006.  By then, her pain had eased somewhat,
but remained acute from her neck through to her elbow, on her right side.  She
continued in her coordinator’s role with both women in her care, but found it
too physically demanding.  In January 2007, she ceased her role in the care of
L.M.  This resulted in a reduction of her hourly wage from $19 to $18.75.

[14]        
The plaintiff testified that she continued to
experience pain in all areas affected by the accident, with the exception of
her foot, through Christmas 2006.  The low back pain was intermittent.

[15]        
The physical demands on the plaintiff have
increased as L.B.’s mobility has declined.  She is unsteady walking, and
requires support.  The plaintiff wears a special belt when walking with L.B. 
This permits L.B. to hold onto an attachment to the belt, rather than place a
strain on the plaintiff’s upper body.

[16]        
The plaintiff testified that she had, between
February and August 2007, taken physiotherapy on her own initiative.  As it did
not give her relief from her pain, she stopped.

[17]        
In the fall of 2008, the plaintiff dropped one
of her shifts.  She was offered an opportunity to coordinate care at a group
home, but as the residents were wheelchair-bound, she did not pursue it due to
her lingering pain symptoms.  Had she taken this assignment, her rate of pay
would have increased by $1 per hour. 

[18]        
Before the accident, the plaintiff worked out at
a gym between four and seven times weekly.  Her exercise regime included weight
training, walks, running, and stretching.  Her leisure activities included
gardening and camping.  She is no longer, due to her shoulder pain, able to
pursue weight training or running at the gym, although she does use a treadmill
and continues to walk and stretch.

[19]        
The plaintiff is concerned that the increasing
physical demands in her work with L.B. may prevent her from continuing as a
caregiver.  All work with persons in care is physically demanding, as it
involves shopping, cleaning, and some home maintenance.  Her shoulder pain has
affected her performance of these responsibilities, and some accommodations
have been made.  She is unable to continue her housekeeping and cleaning as
formerly.

[20]        
The plaintiff’s 2005 T4 earnings were $47,655. 
Her earnings for 2006 totalled $48,505.  Her 2007 income was $62,421.  She
earned $65,826 in 2008.  At an income of $35,000 for fifteen of the twenty six
pay periods, her projected 2009 income would slightly exceed $60,000.

[21]        
The plaintiff explained that the maintenance of
her income level in 2006, despite her injuries, is attributable to her having
worked far more than her previous number of overnight shifts, for which she
received a flat rate of $80.

[22]        
The plaintiff testified that her hourly rate of
pay has increased by $3 per hour from August 2006 to the present.

[23]        
The plaintiff gained some relief from an
injection in her shoulder, administered by an orthopaedic surgeon.  This helped
for around one month.  Three specialists have recommended injections as a means
of relieving her shoulder pain.  Two specialists have suggested arthroscopic
surgery.  She avoids injections, as they are non-naturopathic, and does not
wish to undergo surgery.  She is also concerned by the advice of a friend, who
told her that injections cause muscle tissue breakdown.  She was advised by
another physician that surgery was not likely to improve her shoulder
condition.

[24]        
She does not feel that her family physician supports
her in relation to her motor vehicle accident injury.

Theresa Huntley

[25]        
Ms. Huntley is the director of quality with
the Community Living Society.  The plaintiff has worked under her direction for
12 years.

[26]        
Ms. Huntley corroborated the plaintiff’s
evidence of the physical demands associated with the care of L.B. and L.M.  It
was her personal observation that the plaintiff’s ability to perform the
heavier physical demands of her employment appeared diminished in the period
following the accident.  She also confirmed that the group home work demanded
heavy lifting.  It was her evidence that there are few jobs in the Society that
have no physical requirements.  Some clients require little or no physical
effort; with others, the effort is extreme.

[27]        
On cross-examination, Ms. Huntley agreed
that it was the plaintiff who considered herself unable to handle the group
home opportunity. 

[28]        
The Society discourages working in excess of 40
hours each week.  The employer has an accommodation policy, but, due to the
demands inherent in the work, it can be difficult to accommodate physical
limitations in the long term.

[29]        
Ms. Huntley agreed that a September 5, 2008
employment plan for the plaintiff stated that she had a lot to offer.  She
agreed that the August 26, 2009 performance review of the plaintiff was very
complimentary.

Lucie McKiernan

[30]        
Ms. McKiernan is the Society’s Director of
Employee Services.

[31]        
She testified that the Society is a “flat
organization”, which means that there are few opportunities to advance.

[32]        
The plaintiff’s current rate of pay is $21.93
hourly.  She “guessed” that, as a “dual coordinator” meaning a role
coordinating care for more than one client, the hourly rate would increase by
$1. 

[33]        
She testified that the Society offers good job
security, but that there is little opportunity for non-physical work.  Eighty
percent of the clients require lifting and supporting, and those who do not
still require housekeeping services.

S. Marwana

[34]        
This witness is a fellow worker.  Before August
2006, she saw no indication of the plaintiff having upper body issues.  It was
different after the accident.  The plaintiff was in apparent discomfort, and
complained of pain.  She had attended the home of the plaintiff both before and
after the accident, and observed that the standard of housekeeping had
diminished in the period following the accident.

[35]        
On cross-examination, she testified that her own
clients are very self-sufficient. 

Angela Lackner

[36]        
Ms. Lackner is also a community living
counsellor.  She is also on call as an elementary school teacher.

[37]        
She has known the plaintiff for ten years, and
she also works with L.B.  She sees the plaintiff at a shift change, when she
takes over from the plaintiff.  It is apparent that she is in pain.

[38]        
She described the plaintiff as being less
enthusiastic and innovative after August 2006.  The plaintiff no longer mows
the lawn at the residence rented for L.B.  A service performs this chore.

[39]        
Ms. Lackner testified that L.B. suffers
from cerebral palsy, and demonstrates a progressive advancement of disability. 
She pulls when on accompanied walks, and it is necessary to use a transfer belt
so that she does not hold her caregiver’s arm. 

Expert Evidence

[40]        
Three medical reports were introduced:

1.       Dr. Maloon, dated February 27, 2008, by the defendant;

2.       Dr. Aitken, dated July 24, 2008, for the plaintiff;

3.       Dr. Richardson, dated January 19, 2009, for the plaintiff.

[41]        
The authors of the reports are all orthopaedic
specialists.

[42]        
Dr. Richardson and Dr. Maloon were
called for cross-examination.

[43]        
The plaintiff’s treating physician neither
prepared a report nor testified.

Dr. Maloon

[44]        
This independent medical examination was
conducted as requested by the defendant. 

[45]        
The plaintiff presented complaints of right
shoulder pain, low back pain, and headaches.  The latter are occasional, and
are aggravated by shoulder pain.  The low back pain is not continuous, and
varies in severity.  There are no associated symptoms such as radiation into
the limbs, or bladder dysfunction.  The low back pain has improved since the
motor vehicle accident.

[46]        
The plaintiff’s primary concern is right
shoulder pain, which extends down her arm to her elbow.  There is also pain in
the right side of her neck.  The discomfort is continuous, and is aggravated by
any use of her right arm.  The severity of discomfort varies from day to day,
and occasionally is rated by her as at the highest end of the scale of ten. 

[47]        
Under the heading “Impression” Dr. Maloon
says that the plaintiff probably sustained mild soft tissue strains to her
neck, back, and right shoulder, as well as a contusion of her right knee and
strain to her foot and right groin.  He says that clinical evaluation failed to
reveal objective evidence of injuries to the musculoskeletal or neurological
components of her spine, trunk, or limbs.  An MRI of the right shoulder
revealed evidence of a degenerative process, with no evidence of acute bony or
soft tissue injury.  The MRI showed calcific tendonitis, which Dr. Maloon
says is not the result of an acute injury, but rather that of wear and tear
change in the tendon.  He says “[h]er symptoms of mild rotator cuff tendonitis
would be consistent with the MRI findings”. 

[48]        
Dr. Maloon discussed the possibility of a
cortisone injection with the plaintiff, and reports that “[s]he did not feel
that her symptoms were severe enough to warrant this”. 

[49]        
He says that:

In the absence
of specific structural injury, I do not believe that mild soft tissue strains
that she may have sustained to her neck and back in the motor vehicle accident
of August 6, 2006 would have been significant enough to alter the natural
history of her pre-existing neck or back condition.

He would have expected her to have been
partially disabled for six to eight weeks while the soft tissue symptoms
settled, and then to have been able to resume her previous level of activity
with no ongoing disability.

Dr. Aitken

[50]        
This was a report based on a clinical
examination and a review of clinical material.

[51]        
The clinical records indicate that the plaintiff
sustained a severe neck strain, moderate upper back strain, moderate shoulder
strain, and mild chest contusion in an accident that occurred on August 17,
1996.  The pain persisted for a considerable time, and there were frequent
visits to her family physician.  The last mention of neck pain was July 25,
2003.  She had a physical on May 3, 2006, and there was no mention of neck
problems.

[52]        
She saw her family physician on August 9, 2006,
and again on August 23.  She was complaining of chest pain, nausea, neck,
shoulder, upper and lower back pain, soreness of the hands and wrists, and
tenderness on the left thigh and left knee.  The clinical records revealed
ongoing complaints of right shoulder pain.

[53]        
Dr. Aitken reviewed the January 30, 2008
MRI, and said the findings were consistent with tendonopathy, as also observed
by Dr. Maloon.  There was a marked reduction of range of motion of the
right shoulder.  The left was normal.

[54]        
Dr. Aitken observed that the clinical
records indicate that the plaintiff had made a good recovery from the August
1996 accident by 1999 “although she remained slightly symptomatic thereafter”. 
It is his opinion that, as the plaintiff was significantly recovered following
the 1996 collision, the current problems are “either de novo or a
re-aggravation and reactivation of the pre-existing problem”.  He recommends
treatment by “wet and/or dry needling of the tender spots around the base of
the skull, the neural spine and C7, the right scapula, and the muscles of the
neck.  She may be a candidate for arthroscopic decompression.

[55]        
As for the future, he says that:

Since she is so
considerably symptomatic, the duration of her ability to work on in this job
remains to be seen.

Dr. Richardson

[56]        
This was an independent medical examination
conducted at the request of counsel for the plaintiff. 

[57]        
Dr. Richardson conducted a physical
examination and reviewed the plaintiff’s clinical records and Dr. Aitken’s
report.

[58]        
Based on his review, he says that “the symptoms
from the 1996 motor vehicle accident abated by 2001 with a single recurrence
noted in 2003”.

[59]        
Dr. Richardson reviewed the January 30,
2008 MRI, which he said “revealed a tendonopathy in the supraspinatus tendon
with some calcific deposit as well”.  This he said is the main tendon of the
rotator cuff.  He testified that he is unable to say whether the calcification
occurred before or after the MVA.  It can be there, but asymptomatic.  He
testified that tendonopathy indicates something has happened to the tendon,
consistent with trauma.  If calcification was present before the traumatic
event, it predisposes a person to infringement and inflammation. 

[60]        
Dr. Richardson refers to incidents
subsequent to the 2006 accident:  a fall in 2006, and a problem after lifting a
heavy case of water in a care home.  Increased pain was “merely aggravation of
the symptoms arising in the indexed 2006 motor vehicle accident”.  He says
“certainly Ms. Hauer’s symptoms were aggravated by her job after the motor
vehicle accident”. 

[61]        
Under the heading “Opinion”, Dr. Richardson
says that the plaintiff, as a result of the accident, sustained soft tissue
injury of the cervical spine, soft tissue injury to the lumbar spine and right
SI joint, soft tissue injury to the right shoulder; and probably a rotator cuff
injury resulting in tendonitis and impingement.  As for causation, he says “it
is my opinion that in the absence of evidence to the contrary that the motor
vehicle accident in question of August 6, 2006 bears the majority of the
responsibility for Ms. Hauer’s current symptoms in her right shoulder,
cervical spine and low back”.  He adds that “it is clear that there’s been some
aggravation of Ms. Hauer’s symptoms in her neck, low back and right
shoulder by her activities of daily living, most particularly, her job”.  This,
he says, is “a secondary minor cause of her current symptomotology; the primary
cause being the motor vehicle accident of August 6, 2006. 

[62]        
Dr. Richardson says that the prognosis for
the cervical spine is good.  He would expect continuous improvement over time
“as she did after the previous motor vehicle accident”.  The expected time is
two or three years.  With respect to the low back pain, it should become less
of a problem over the course of time.

[63]        
His prognosis is guarded with respect to the
right shoulder, as the plaintiff shows findings of rotator cuff tendonitis and
impingement.  He strongly advises a referral to an orthopaedic surgeon who
specializes in shoulder surgery for evaluation and treatment.  He notes that
the plaintiff obtained some relief from shoulder pain after the injection of
freezing administered by Dr. Aitken.

[64]        
With regard to the lumbar spine, he says that if
her symptoms continue to get worse “which they currently have in the lumbar
spine”, or she develops neurological problems in the lower extremities, he
would recommend an MRI.

[65]        
I note that in his July 2008 report, Dr. Aitken
reported that the plaintiff complained of “some lower back pain especially
within the last month”.

[66]        
Dr. Maloon, in his report, said he could
find no evidence to suggest that the plaintiff has been physically impaired by
musculoskeletal injuries that she may have sustained in the August 6, 2006
accident.  He says, “I would have expected her to have been partially disabled
for six to eight weeks while acute soft tissue symptoms settled”.   In
rebuttal, Dr. Richardson disagreed.  He said that the six to eight week
time frame for recovery from soft tissue injuries is an outdated measure.  More
recent published findings show a longer period of a year or more for recovery
from soft tissue injuries to the neck.  He suggested an average time for
recovery from pain associated with soft tissue injuries to the neck was
approximately six months.  Injuries to the rotator cuff take three to six
months, and hers had been aggravated by the physical demands of the workplace.

Other

Functional Capacity Evaluation

[67]        
Mr. Winter, an occupational therapist,
conducted an assessment on February 25, 2009.  His report is dated March 20,
2009.

[68]        
Mr. Winter put the plaintiff through a
series of work simulation tasks.  He says in his report that “at the end of the
simulated work activities, Ms. Hauer noted the presence of her neck, low
back and right shoulder pain.  Her symptom experience did not reportedly
increase with exposure to such testing demands”.

[69]        
Mr. Winter found that the plaintiff’s
subjective experience of her limitations “were relatively accurate and reliable
measures of her functioning”.  These generally fell within a range in which
symptoms result in slower or more guarded movement patterns in the work tasks. 
This may require short breaks before continuing with work demands, and may
change the manner of working to complete the tasks. 

[70]        
He found that Ms. Hauer underestimated her
lifting and carrying and strength capacities.

[71]        
Mr. Winter expresses the opinion that Ms. Hauer
“can continue in her present position (i.e. modified hours and duties) under
the behavioural model of care”.  He explains his understanding of the
behavioural model of care as primarily verbal direction to her client.  This
could include occasionally dealing with aggressive behaviours, and does include
aspects of housekeeping.  He described the operation of the transfer belt. 
This is a tool to assist the client in the transition from sitting to walking. 
This, he said, goes around the waist of the client.  Some models have looped
handles so the attendant can hold on to the client. 

IV.      ANALYSIS OF EVIDENCE
AND FINDINGS OF FACT

[72]        
It is not a matter of contention among the
medical experts that the plaintiff sustained soft tissue injuries in the August
6, 2006 accident.  These injuries were to the neck, shoulder, and back. 

[73]        
It is also not disputed that the plaintiff had
not, for several years before the accident, had symptoms from injuries
sustained in previous accidents.

[74]        
There is no suggestion in any of the medical
reports that the plaintiff is not experiencing the pain that she reports.

[75]        
The medical experts are all of the view that the
plaintiff will benefit from injections in the shoulder area, that being the
most problematic of the plaintiff’s injuries.  Dr. Aitken and Dr. Richardson
say that she may benefit from arthroscopic surgery on the shoulder.

[76]        
The areas of disagreement among the medical
experts are as follows:

1.       causation of the shoulder injury:  Dr. Maloon
attributes this to a pre-existing calcification in the area of the rotator
cuff.  Dr. Richardson agrees that calcification is shown on the MRI, but
says that the soft tissue injury sustained in the accident has caused the
underlying disorder to become symptomatic.  None of the medical experts offer a
prognosis for recovery from the shoulder injury, whatever the cause, without
treatment.  Dr. Maloon says that he does not believe that the plaintiff
will require medical or surgical treatment in the future for musculoskeletal
injuries that she may have sustained in the accident, but he does not believe
that the shoulder injury was sustained in that accident.

2.       Dr. Maloon says that he would have expected the
plaintiff to have been partially disabled for six to eight weeks “while acute
soft tissue symptoms settled”.  Dr. Richardson, in rebuttal, says that the
more recent view, expressed in published medical journals, suggests a six month
period of recovery from pain symptoms associated with soft tissue injuries.

[77]        
The main focus of Dr. Aitken’s report was
the shoulder injury.  It is his opinion on causation that her “current problems
are either de novo or a re-aggravation and reactivation of the pre-existing
problem”.  Dr. Richardson, on causation, says that it is his opinion that “…in
the absence of evidence to the contrary that the motor vehicle accident in
question of August 6, 2006 bears the majority of responsibility for Ms. Hauer’s
current symptoms in her right shoulder, cervical spine and low back”. 

[78]        
I accept the evidence of the lay witnesses that
the plaintiff was active and fully able to perform the physical demands of her
employment before the accident, and after the accident, is no longer as active
or able to perform to the pre-accident level.  The evidence of the plaintiff,
the lay witnesses, and Dr. Richardson, establish a causal connection
between the accident and the plaintiff’s ongoing shoulder pain, and establish,
as fact, the contribution of injuries sustained in the accident to the present
condition of her shoulder.

[79]        
The plaintiff’s shoulder pain has persisted,
largely undiminished, from the time of the accident.  She also reports
intermittent low back pain that varies in severity.  In July 2008 she reported
to Dr. Aitken that she had lower back pain, “especially within the last
month”.  In January 2009 she reported to Dr. Richardson that her low back
pain was worse than ever.  He says that this is a soft tissue injury, and that
it should become less of a problem over the course of time.

[80]        
The medical evidence explains the persistence of
pain symptoms emanating from the plaintiff’s right shoulder.  The evidence does
not explain the persistence and worsening of the plaintiff’s low back pain,
almost 2½ years after the accident.  I find that the causal connection between
the accident and the plaintiff’s present symptoms of a low back injury has not
been established.  The evidence does establish that the plaintiff sustained a
soft tissue injury to the back, and I accept Dr. Richardson’s evidence
that a six month recovery from the disabling effect of a soft tissue injury is
indicated.

[81]        
As I understand the plaintiff’s evidence, the
most significant injury that she associates with the accident is that to her
shoulder.  As I understand the medical evidence, the shoulder injury is the
likely explanation for the pain she experiences from the neck to the right arm.

[82]        
I find that the accident is a significant
contributing factor to her shoulder injury, and that the plaintiff has
established causation on the “but for” test described in Resurfice Corp. v.
Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

V.       DAMAGES

General Damages

[83]        
The plaintiff’s enjoyment of life has been
significant diminished by her persistent pain from her shoulder injury.  Her
other injuries resolved within the times that would be expected for soft tissue
injuries.  Her present experience of low back pain does not appear to be
causally related to the accident.

[84]        
Counsel for the plaintiff has referred to two
decisions of this court in which injuries having similar impacts were the
subject of damages assessment.  These are the following:

(1) Mattu v. Fust, 2009 BCSC 624

Here, a 39
year old plaintiff experienced headache, back pain, shoulder, neck, arm and leg
pain, and the aggravation of asymptomatic disc herniations.  Non-pecuniary
damages were assessed at $60,000.

(2) Joyce
v. Dorvault, 2007 BCSC 786

Here, a 54
year old plaintiff suffered moderate soft tissue injuries, causing pain to his
arm, shoulder, neck and back.  There was an aggravation of a pre-existing
degenerative spinal condition.  Damages were assessed at $50,000.

[85]        
Considering these authorities and the factors
set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at
paras. 45-46, 263 D.L.R. (4^th) 19, leave to appeal ref’d [2006]
S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.

Past Loss of Earnings

[86]        
Due to her injuries, the plaintiff worked fewer
hours in 2006 than in 2005.  The difference is 1,767.5 hours (2005) less 1,575.5
hours (2006), which equals 192 hours.  Her pay rate was approximately $20
hourly.  The loss of income was $3,840.

[87]        
In 2007, the plaintiff worked 2,025 regular
hours.  As her rate of pay had been reduced by $0.25 hourly due to her giving
up her coordinator role with L.M., she sustained a modest income loss of $506.

[88]        
In 2008, the plaintiff, due to her injuries,
lost the opportunity to take the role as coordinator of a group home, at an
hourly wage increase of $1.  She worked 2,014 hours.  The loss for 2008 was
$2,014.

[89]        
Up to the date of trial in 2009, the plaintiff
had worked 863 regular hours.  For 2009, I award the sum of $863 up to the date
of trial.  This takes into account that, had she been able to take the group
home coordinator’s role, her pay rate would have been $1 higher.

[90]        
The plaintiff’s hours worked per pay period in
2009 up to the date of trial were lower than in the previous post-accident
years.  It has not been established that this is linked to accident-related
injuries.  There is no evidence that her shoulder injury is progressive, and
the functional capacity evaluation conducted in February 2009 indicated her
ability to continue with the employment duties she had undertaken since
surrendering her care of L.M. in 2007.  She worked 2025 regular hours in 2007,
and 2014 regular hours in 2008.

[91]        
The total award for past earning loss is $7,223.

Future Income Loss

[92]        
I am satisfied that the plaintiff’s ability to
perform all employment tasks associated with the care of disabled clients has
been impaired.  This being so, her circumstances bring her within the
considerations set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.),
which were quoted with approval by Mr. Justice Taggart in Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393 (C.A.). 

[93]        
In Rosvold v. Dunlop, 2001 BCCA 1, 84
B.C.L.R. (3d) 158, Huddart J.A. set out the standard by which awards for future
losses should be made (at para. 9):

Because damage
awards are made as lump sums, an award for loss of future earning capacity must
deal to some extent with the unknowable.  The standard of proof to be applied
when evaluating hypothetical events that may affect an award is simple
probability, not the balance of probabilities: Athey v. Leonati, [1996]
3 S.C.R. 458.  Possibilities and probabilities, chances, opportunities, and
risks must all be considered, so long as they are a real and substantial
possibility and not mere speculation.  These possibilities are to be given
weight according to the percentage chance they would have happened or will
happen.

[94]        
Where a real potential for future loss is
present, taking account of the considerations in Brown v. Golaiy, supra,
the loss is compensable even in the absence of any actual loss of income: see Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), leave to appeal ref’d [1991]
1 S.C.R. xii; Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.).

[95]        
In the present matter, the plaintiff’s future
income loss has been established, even on the balance of probabilities test, by
her having to forego the opportunity to serve as coordinator of a group home. 
The related loss of income is, however, modest.  Had she taken this assignment,
her hourly pay rate would have increased by only $1.

[96]        
The plaintiff is 45 years of age.  When account
is taken of her educational and employment history, there seems little
possibility that an opportunity for more remunerative employment than she had
before the accident would present itself.

[97]        
There is no evidence that the plaintiff’s
shoulder injury will worsen in time, leading to increased disability.

[98]        
The plaintiff’s employment is reasonably secure,
and her employer has to some extent accommodated her by employing a service for
yard care at L.B.’s place of residence. 

[99]        
The plaintiff may be exposed to some real and
substantial risk to her employment, due to shoulder-related physical
limitations, if she should require reassignment, in the future, to another
client.  Most clients of her employer have some level of physical disability,
and it may be difficult to match the plaintiff’s abilities, as affected by her
injury, to a future client’s needs. 

[100]     After taking account of the proven loss, the risk of future loss in
the event, albeit remote, that her income is reduced due to an inability to
match her abilities with the needs of a client, and the absence of any prior realistic
potential for advancement, I award the sum of $60,000 for loss of earning
capacity.

Special Damages

[101]     The plaintiff will receive an award of $675 for special damages. 

Cost of Future Care

[102]     The plaintiff claims a one-time cost, for assessment, of between
$720-$960.  She also claims a yearly amount of $1,440 for physiotherapy for
symptom management.  There is a claim for a one-time assessment of her home and
work settings, at a cost of $400.  She claims between $1,219-$1,687 for annual
housekeeping services. 

[103]     I do not accept the claim for physiotherapy.  The plaintiff has not
found this effective in the past.  One of the physicians has recommended that
she continue with an at-home exercise program for symptom relief.  None have
recommended physiotherapy.

[104]     I award the annual sum of $1,200 for housekeeping services.  The net
present value, using the multiplier provided in the report of Ronald Tidball,
is 20.81.  The award is $24,972. 

VI.      MITIGATION

[105]     The defendant bears the burden of establishing that the plaintiff
has failed to mitigate her loss, in this case that she failed to follow medical
direction, and that had she followed that advice, she would have recovered
further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[106]     The plaintiff prefers naturopathic remedies.  She was influenced by advice
given by a friend on the effect of injections.  A physician advised her,
informally, that she may not benefit from surgery.  On these bases, she
declined to act on the recommendations of three well-qualified orthopaedic
surgeons to take injections into the shoulder area, and to consider
arthroscopic surgery.  Dr. Richardson puts the percentage chance of improvement
from arthroscopic surgery at between 70-80%. 

[107]     There are, of course, risks associated with surgery, though these
seem minimal.  If the plaintiff underwent surgery, there may be some losses
during the recovery period.

[108]     There will be a reduction of 30% of the amounts awarded for general
damages, loss of income earning capacity, and cost of care due to the
plaintiff’s failure to mitigate.

VII.     SUMMARY

[109]    
The plaintiff is awarded the following:

VIII.    COSTS

[110]    
The parties are at liberty to make submissions
on costs.  In the absence of further submissions, I would award the plaintiff
her costs based on Scale B.

“H.A.
Slade J.”

The Honourable Mr. Justice H.A. Slade