IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100406

Docket:
M074713

Registry: Vancouver

Between:

Barbara Gosselin

Plaintiff

And:

Robert John Neal, City of Vancouver
and Zeemac Vehicle Lease Ltd.

Defendants

Before: The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
In this trial, the plaintiff claims damages for
injuries suffered in a motor vehicle accident on January 5, 2006 (the “MVA”). 
She was 39 years old at the time of the MVA.  She is now 43 years old.  She
suffered injuries to her neck, right shoulder, and back.  She claims that those
injuries have not resolved and that they continue to cause her pain and to
restrict her activities.

[2]            
Liability is not an issue.  This judgment
addresses damages only.

[3]            
Three witnesses gave evidence with respect to
the medical and quasi-medical treatment of the plaintiff after the motor
vehicle accident:

1.       Dr. Jennifer Moore – the plaintiff’s general
practitioner since 1998.

2.       Tim Winter – a consulting occupational therapist
(the “OT”).  He was not involved in treatment, but supervised an assessment and
prepared a Functional Capacity Evaluation.

3.       Paul
Hatano – a kinesiologist, then with Karp Rehabilitation (“Karp”), called as a witness
by the defence, who supervised the rehabilitation therapy.

[4]            
Written reports by Dr. Moore and Mr. Winter were
filed as exhibits.

[5]            
In addition to those three witnesses, the
evidence indicated that, after the MVA, the plaintiff had seen other medical
and quasi-medical professionals, including:

1.       Dr. Martishak – a neurologist referred to in
the evidence of Dr. Moore;

2.       Dr. Eric Leung – a chiropractor referred to
in the evidence of the plaintiff, Dr. Moore, and various receipts for payment;
and

3.       A
massage therapist.

[6]            
Other witnesses called at trial by the plaintiff
were:

1.     The plaintiff herself;

2.     Shelly Fidel – a friend of the plaintiff;

3.     Jennifer McCollough – a friend of the plaintiff;

4.     Aran Speed – the plaintiff’s partner;

5.     Luc Gosselin – the plaintiff’s ex-husband;

6.     Leo Redmond – the plaintiff’s district manager;

7.     Bruce Rein – a co-worker of the plaintiff; and

8.     Robert Carson – an economist.  His report with respect to future
aspects of various claims was filed as an exhibit.

[7]            
The defendants called three witnesses:

1.       Paul
Hatano – the kinesiologist;

2.       Robert
Neal – the defendant driver; and

3.       Jerry
Heikkila – a passenger in the defendant’s car.

[8]            
The following chronology will have relevance to the
plaintiff’s injury claims, as well as to her various damages claims:

November
21, 2005 –        plaintiff accepts a “promotion” to the position of supervisor
at her employment with Kone Inc. (“Kone”), in the business of elevator
installation and maintenance;

November
29, 2005 –        Kone advised, by e-mail, about “personnel developments”
within the company, indicating that the plaintiff “… has accepted the
position of Field Supervisor ….”;

January
5, 2006 –             the MVA;

January
10, 2006 –           first post-MVA visit to Dr. Moore;

January
2006 –                 commences chiropractic treatments;

January
2006 –                 commences therapy with Karp;

January
27, 2006 –           second visit to Dr. Moore;

January
27, 2006 –           plaintiff withdraws from the union to which she had
belonged;

March
31, 2006 –              third visit to Dr. Moore;

May
30, 2006 –                 Dr. Moore reports that the kinesiologist had
expressed concerns about pain that the plaintiff was experiencing in left arm;

June
14, 2006 –                plaintiff has had x-rays and Dr. Moore refers her for
a CT Scan;

June
26, 2006 –                end of Karp program;

July
25, 2006 –                 CT Scan reveals a right C5-6 and C6-7 disc herniation;

August
2006 –                   plaintiff sells her motorcycle;

August
18, 2006 –             Dr. Moore reports that plaintiff continues to have neck
and shoulder pain with radiation into her arm;

On
August 18, 2006 –       Dr. Moore writes a note expressing her opinion that due
to the two herniated discs, the plaintiff will be unable to work as an elevator
mechanic in the short term (“August 18 letter”);

2007
–                              plaintiff is selected as “Canadian Employee of
the Year” for Kone;

January
25, 2007 –           Dr. Moore reports that plaintiff had experienced “a flare
in her symptoms” as the result of an otherwise minor incident at work;

February
7, 2007 –            plaintiff receives a merit raise;

November
27, 2007 –        Dr. Moore reports plaintiff has continuing symptoms and
activity restrictions;

January
2008 –                 plaintiff sees a neurosurgeon, Dr. Matishak, referred by
Dr. Moore;

Early
2008 –                     plaintiff receives a further raise;

March
2008 –                    an MRI is completed as ordered by Dr. Matishak, which
confirms disc herniations at C5-6 and C6-7 with further detail;

April
11, 2008 –                 Dr. Moore reports continuing symptoms;

July
2008 –                       plaintiff end chiropractic treatments;

July
2008 –                       plaintiff commences massage therapy for
approximately five weeks;

Early
2009 –                     plaintiff receives a further raise;

Later
in 2009 –                  plaintiff receives a further raise;

Later
in 2009 –                  plaintiff is promoted to position of Service Manager;

July
28, 2009 –                 OT assessment and functional capacity evaluation by
Tim Winter; and

July
28, 2009 –                 plaintiff completes Neck Disability Index questionnaire
for Mr. Winter.

[9]            
Prior to the MVA, the plaintiff was an
extraordinarily active person in her work and her leisure activities.  In grade
eight, she had to overcome traditional prejudices of the day which would have
steered her away, because she was a woman, from her interest in mechanics and
working with her hands.  She successfully overcame this resistance and was
permitted to study the subjects which interested her.  She became educated and
skilled in mechanics, electronics, and in automotive and metal work.

[10]        
She participated and excelled in sports
throughout her youth, including competitive skiing, water skiing, cycling, and
hiking.  She started riding motorcycles at a young age, including dirt bikes
and street motorcycles.

[11]        
She grew up in the Okanagan.  As a youngster,
she worked as a fruit picker.  In high school, she worked at a McDonald’s,
where she became a crew chief after six months, and at a Burger King, where she
became a manager.

[12]        
She moved to the Vancouver area in 1985.  She
worked in an administrative role at a vitamin company, which she did not
particularly enjoy.  She worked on Saturdays at Minit-Tune as an automobile
mechanic which she enjoyed much more.

[13]        
She met her future husband through their mutual
interest in motorcycles and outdoor activities, such as scuba diving and snow
sports.  He introduced her to scuba diving, but she surpassed him and obtained
an Advanced Open Water Certification.  They learned to snowboard.  He was
better than her at first but she surpassed his skill level in that as well. 
They both raced motorcycles on U.S. and Canadian tracks for several years.

[14]        
They have two children, now ages 13 and 10.

[15]        
Mr. Gosselin was an elevator mechanic and he
encouraged the plaintiff to take up that trade.  At that time, there were no
female elevator mechanics in Canada.  In 1994, she began as a helper.  She made
$20,000 less than she was making at the vitamin company, but it gave her the
opportunity to work with her hands, to train, and to earn seniority in the
union.

[16]        
Ultimately, she became the first woman in Canada
certified as an elevator mechanic.  She is also a certified escalator mechanic.

[17]        
She moved between elevator companies, but always
wanted to return to Kone, the original company that she worked for.  She cut
her maternity leave short when Kone offered her a mechanic’s job in September
1999.  By the end of 2005, she was an adjuster, a more senior and skilled
position than a mechanic, but one which still involved hands-on work.  She
loved her job.  It fulfilled her life-long interest in mechanical and
electrical devices and provided a significant income.  The prejudice from male
co-workers that she suffered in her early years has long since disappeared as
she has earned their respect.

[18]        
She had surgery in 2002 and separated from Mr.
Gosselin the next year.  She gained weight during this time.  After a short
period of recovery, she commenced her highly active lifestyle and got back to
her usual weight of approximately 155 pounds.

[19]        
Two friends of the plaintiff, who have known her
for many years, gave evidence as to her highly active lifestyle before the MVA,
including motorcycling, skiing, snowboarding, water sports, mountain biking,
and hiking.  She was extremely fit.

[20]        
She was also accomplished as a renovator/repair
person completing projects in her own home, as well as assisting friends in
their homes.  In addition, she was accomplished in working on motor vehicles. 
She sometimes owned and drove a motor vehicle which she customized herself with
high performance parts.

THE
COLLISION

[21]        
On January 5, 2006, the plaintiff was on her way
to work.  She was driving a 2001 Ford Focus.  It was stopped at a red light
when she was rear-ended by a 2004 Ford F-150 driven by the defendant, Mr. Neal,
and leased by his employer, the defendant the City of Vancouver.

[22]        
Photographs of the plaintiff’s vehicle show what
appears to be minor damage.  The cost of repairs to her vehicle was $2,437.27.

[23]        
The plaintiff’s vehicle moved forward
approximately 10 feet after the collision.  However, Mr. Neal believed that the
vehicle had just begun to move with a green light, and that her brake lights
were not even on at the time of the impact.  Neither Mr. Neal, nor his passenger
was injured.  The passenger was not wearing his seatbelt.  He testified that
his coffee did not even spill.

[24]        
The plaintiff testified that the impact jarred
open the ashtray in her vehicle, and that she thought there had been an
explosion.

[25]        
She did not wish to have an ambulance called. 
However, she was clearly distraught.  The passenger testified that she seemed
to “suffer” from the collision, and that he didn’t think it was a good idea for
her to be driving.  She agreed, and accepted a ride to her work.

[26]        
Her manager subsequently drove her to the hospital
where she was examined.

[27]        
She saw her own doctor, Dr. Moore, on January
10, 2006.

CAUSATION

[28]        
The burden is on the plaintiff to prove that her
injuries were caused by the MVA on a balance of probabilities.  Causation need
not be determined with scientific precision.  Rather, it is essentially a
question of practical fact which can be inferred from the circumstances: Athey
v. Leonati, [1996] 3 S.C.R. 458.

[29]        
The defendants argue as follows:

1.       On
May 30, 2006, the plaintiff complained to Dr. Moore of left arm pain. 
Subsequent investigation showed degenerative disc disease and herniated discs.

2.       Dr.
Moore testified as follows:

(a)      the
degeneration would have taken years to develop;

(b)      many
ordinary activities such as bending and twisting can cause a disc herniation;

(c)      the
cause of these herniations is beyond her area of expertise;

(d)      she
could not say if the disc herniations were caused by the MVA or not.  Further,
she did not say if, assuming they pre-existed, they would have become
symptomatic if the MVA had not occurred.  Finally, if they would have become
symptomatic anyway, she did not say when that might have happened.  She did
testify that sometimes, such conditions may become symptomatic by a virtual non-event,
or sometimes not at all;

(e)      there
is no direct evidence that links the disc herniations and the arm problems to
the MVA;

(f)       the
plaintiff’s biggest difficulty with the type of work she wants to do is her
difficulty reaching overhead.  Dr. Moore was not 100 percent sure that this was
only due to the disc herniations; and

(g)      her
opinion does not provide sufficient evidence that the plaintiff is prevented
from doing overhead work by her MVA injuries.

3.       The
impact of the MVA was minor.  There was little damage to the vehicles.  The
collision was unlikely to have caused the injuries that the plaintiff
complained of.

4.       Therefore,
the plaintiff has failed to prove on a balance of probabilities that the MVA
caused these problems.  Rather, the evidence establishes that the plaintiff’s
most serious problems, including her difficulties at work, are caused by her
pre-existing disc problems, not by the MVA.

[30]        
The plaintiff argues as follows:

1.       According to Dr. Moore, the plaintiff was in excellent
physical condition before the MVA.  She had a high level of fitness, had no
difficulties performing numerous athletic activities and no difficulties
performing a physically demanding job.  Prior to the MVA, there were no
physical problems which limited her work as an elevator mechanic.

2.       She
provided evidence of a complex of injuries which were most likely caused by the
accident.  Given that the plaintiff had no such problems before the MVA, and
there are no other known causes, it is most likely that the problems are caused
by the MVA.  A delay in diagnosis does not mean that she did not have the
problem from the date of the MVA.  Her symptoms generally support the injury
being caused by the MVA.

[31]        
On a consideration of the evidence my conclusion
is as follows:

1.       It is unnecessary to determine if the disc herniations were
caused by the MVA, or if the degenerative disc disease might have become
symptomatic even without the MVA, and when it might have become so.

2.       It is sufficient that I am satisfied that all of the
plaintiff’s symptoms were caused by the MVA.  She had no symptoms at all before
that.  There is no evidence at all to suggest when, or if, she might have ever
become symptomatic, but for the MVA. 

3.       Given
the stark difference between her level of functioning before and after the MVA,
her immediate and continuous pain, I am satisfied that the MVA is the clear
cause of her injuries and her ongoing symptoms.

4.       The
plaintiff has satisfied the burden of proof on her.  I am satisfied that “but
for” the MVA the plaintiff would not have suffered the injuries that she did
suffer and continues to suffer.  Causation has been proven.

THE MVA
INJURIES

[32]        
The plaintiff claims injuries to her neck, right
shoulder, low back, and mid-back.  She has experienced frequent headaches,
including migraines, and has had difficulties with her right arm.  She has
difficulty sleeping.

[33]        
Dr. Moore reports, among other things, that:

1.       She saw the plaintiff on January 10, 2006; she diagnosed
diffused soft tissue injuries.  The areas affected were the neck, shoulder
girdles, and low back.

2.       She saw the plaintiff again on January 27, 2006.  The
plaintiff was attending a chiropractor two times a week, but had ongoing
mid-back and neck pain.

3.       She next saw the plaintiff on May 30, 2006.  The
kinesiologist had expressed concerns about pain that the plaintiff was
experiencing in her left arm that appeared to be positional.  The plaintiff was
unable to complete several of the exercises that she had been given.

4.       She sent the plaintiff for a standard x-ray for possible
disc pathology.  It showed degenerative disc disease at “C5-6 and at the C3-4
apophyseal joints.”

5.       She sent her for a CT Scan on July 25, 2006.  The
radiologist reported as follows: “Impression:  right C5-6 and C6-7 disc
herniation.”

6.       On
January 25, 2007, the plaintiff visited her because she experienced a “flare in
her symptoms” following an otherwise minor incident at work.

7.       On
November 27, 2007, the plaintiff was still having difficulties, including not
being able to hold her arm over her shoulder for more than one or two minutes
and difficulty with ordinary activities, such as doing her hair, raking leaves,
or pruning trees.

8.       In
January, 2008, the plaintiff saw a neurosurgeon, Dr. Matishak.  He ordered
an MRI, which confirmed disc herniation.

9.       On
April 11, 2008, the plaintiff said her pain and restricted movement in her left
arm was “ruining her life”.

10.     Dr.
Matishak recommended massage therapy, but this aggravated the plaintiff’s pain
so she discontinued the therapy.

11.     The
plaintiff was not prepared to entertain a surgical option, although
Dr. Matishak left the possibility of future consultation open.

12.     On
March 10, 2009, she reports that the plaintiff was slowly improving but still
had difficulty with cervical extension so that she could not perform any
overhead work.

[34]        
Dr. Moore testified that it has been more than a
year since the plaintiff had any significant improvement in her symptoms.

[35]        
Despite all the foregoing, Dr. Moore remains
hopeful that the plaintiff will return to her prior athletic pursuits and all
of her activities of daily living.  She notes that the plaintiff has always
been physically active, and is highly motivated to get back to her pre-MVA
state.

[36]        
The defendants point to the following evidence
indicating that the plaintiff was improving at a faster rate than Dr. Moore’s
evidence seemed to suggest:

1.       The
plaintiff took an active rehabilitation program at Karp within months of the
MVA.  Mr. Hatano, her therapist, testified that she made progress during
the program.  By the end of the program in July 2006, she showed increased
mobility, strength, and core stability.  She reported to Mr. Hatano that she
had improved in walking, bending, crouching, sitting, and standing, as well as
her ability to turn her neck.

2.       At
the final Karp assessment on July 10, 2006, she told Mr. Hatano she was
rollerblading twice a week, going to the gym twice a week, and swimming three
to four times a week.

3.       She
was told to continue her exercising, but the defendants argue that the evidence
indicates she failed to do so.

4.       Despite
the failure to continue with her exercising, the plaintiff’s condition has
improved.  She agreed that the right shoulder area had resolved in about six
months, the low back in about six months, and the mid-back in about nine
months.

5.       By
June of 2008 (the examination for discovery), the plaintiff’s only neck
problems were experienced when she was shoulder-checking to the left while at
work.

6.       On
March 10, 2009, she told Dr. Moore that she had little pain if she was careful
to restrict her movement.

7.       On
July 28, 2009, she filled out a questionnaire for the OT.  Her answers indicated
that her pain was mild, she could look after herself normally without causing
extra pain, her headaches were infrequent, she could drive her car with only
slight pain, and she was able to engage in most, but not all, of her
recreational activities because of pain in her neck.

8.       Before the testing started, she told the OT
that her pain was one on a scale of one to 10.  At the end of a long day of
testing, it had only risen to two of 10.

9.       The
plaintiff’s award for non-pecuniary damages should be reduced because of her
failure to mitigate by failing to continue her exercise program.

THE IMPACT OF THE PLAINTIFF’S INJURIES

[37]        
The plaintiff claims that her injuries have
impacted her in the following ways:

1.       Her
activities with her children and her partner have been dramatically restricted
including motorcycling, mountain biking, dirt biking, 4-wheeling, skiing, and
snowboarding.

2.       As
a result, she sold her motorcycle in August 2006.

3.       She
has had difficulty driving her vehicle because of changing gears and shoulder-checking.

4.       She
has sometimes had to take pain medication.  When she does so, her family
notices that she is giddy, and she cannot drive.

5.       She
has had difficulties around the home.  She cannot do the type of home
renovation projects which she used to do and enjoy.

6.       She
now does only light gardening, but not mowing the lawn or pruning trees.  Her
partner now does most of the gardening and yard work with the assistance of the
children.

7.       She
is limited to lighter household chores, such as cleaning kitchen counters.  She
cannot carry a load of laundry upstairs or vacuum the stairs.

8.       She
has gained weight as a result of the change in her lifestyle.  She weighed
approximately 155 pounds before the MVA.  After the MVA, she rose to a maximum
of 200 pounds.  She is currently about 180 pounds.

9.       Her
weight gain has negatively affected her self-image.

10.     She
has difficulty sleeping.  She has purchased and uses special pillows, a
mattress topper, and a neck collar.

11.     Her
sexual relationship with her partner has suffered.

12.     She
has not been able to return to the more physical work of her former job, as an
adjuster, which she found more satisfying than her current job, as a Service
Manager, and which she argues is also more remunerative.

13.     She
experiences pain and difficulty at work, even in her office job as a
supervisor.  She has pain if she sits at a computer for more than an hour at a
time.  At the end of the work day she is exhausted and just wants to sleep.

14.     She
wakes early and stretches for approximately 30 minutes in the shower to prepare
for the day.

WAGE LOSS

General

[38]        
At the time of the MVA, the plaintiff was a
supervisor at Kone.

[39]        
Prior to being a supervisor, she had been a
mechanic, then an adjuster with several different elevator companies, and with
Kone since 1999.

[40]        
She became a supervisor on November 21, 2005.

[41]        
In her position as supervisor, she missed
various hours of work after the MVA as a result of her injuries and treatment,
but she was docked no pay as a result.

[42]        
As a result, the defendants argue that she
suffered no past wage loss.

[43]        
The plaintiff argues that her job as a
supervisor was temporary.  She was merely assisting her superior by performing
a job for which there was no other qualified person at the moment.  She was on
probation for six months.  She indicates that it was always her intention to
return to her job as an adjuster after that period of probation.

[44]        
All of the wage loss claims made by the
plaintiff turn, in part, on the question of whether or not, prior to the MVA,
she had intended to return to her job as an adjuster.

[45]        
The plaintiff makes the following wage loss
claims that, in part, turn on that question:

1.       Past
wage loss; and

2.       Impaired
earning capacity.

Did she intend to return to her former
job?

A.       The Plaintiff’s
Position

[46]        
The plaintiff testified that, prior to the MVA,
she had intended to return to her former job as an adjuster at the end of her
six-month period of probation as a supervisor.

[47]        
She testified that she received much more
satisfaction and enjoyment from working as an adjuster than as a supervisor.  She
also testified that she would have earned more money if she had been able to do
so.  More specifically:

1.       As a supervisor, the plaintiff works from the office
instead of in the field.  She does administrative office-type work.  It is
important and necessary work, but the plaintiff argues that it is not her kind
of work.  She would rather work as an adjuster than as a supervisor based on
job satisfaction.

2.       Mr. Redmond and Bruce Rein gave evidence that the plaintiff
is respected in the industry for her skill at the physical aspects of the
work.  Mr. Rein has worked side by side with her and testified that overall she
is more skilled than he is.

3.       Mr.
Redmond testified that the plaintiff can do all of the necessary physical and
mechanical work in the elevator trade.  She has extensive experience working
with both escalators and elevators, including elevators with high-tech
electronic controls.  She was responsible for maintaining the elevators at
Vancouver General Hospital before the MVA.  Mr. Redmond testified that this was
possibly the most complex group of elevators Kone had under maintenance in
Vancouver and it included everything from decades old to state of the art new
equipment.

[48]        
She testified that, despite believing that she
would not enjoy it as much as the adjuster’s work, she took the job as a
supervisor for the following reasons:

1.       She had taken that job to temporarily assist her district
manager on the understanding that it was a temporary accommodation for another
supervisor who had gone to Victoria.

2.       She was on “probation” for six months with this new
position.

3.       She had obtained assurances that she would be able to
return to work as an adjuster.

4.       She concedes that she formally withdrew from the union on
January 27, 2006, three weeks after the MVA indicating her intention to
stay in her job as a supervisor on a full-time basis.  However, she argues that
this was a decision made on the basis of anxiety about the future, anxiety
which she would not have had but for the MVA.

5.       The
letter of January 27, 2006, reads in part:

… I would like to take
a withdrawal card from the Trade.  I will keep in good standing with the union
agreement so that if in the foreseen future I may possibly come back into the
trade …

[49]        
The plaintiff points to Dr. Moore’s August 18
letter which refers to her work as a “mechanic” not as a supervisor.  She
submits that this is clear evidence of how the plaintiff perceived herself, and
her employment, at that time.

[50]        
In support of the assertion that the plaintiff
preferred to return to her adjuster’s job rather than keep the supervisor’s job,
she argues that this is not an unusual position for elevator mechanics to
take.  In that regard, she points to the following evidence:

1.       Kone’s Vancouver branch manager, Mr. Redmond, testified
that:

(a) it is difficult for Kone to attract supervisors.  Only elevator
mechanics and/or adjusters, or workers in similar elevator trades have the
necessary experience to work as supervisors, but most field personnel do not
want to work as supervisors.

(b) Kone’s Vancouver branch has been conducting an international
campaign to attract qualified supervisors for over three years.

2.       Mr.
Gosselin testified that he had a similar experience as a supervisor.  He had
taken such a promotion, with a competitor of Kone’s, some years earlier, but
had left six months later to go back “on the tools” because he found working as
a mechanic more satisfying.

[51]        
In further support of this assertion, the
plaintiff maintains that she would make more money as an adjuster than as a
supervisor.  More specifically, she argues that the evidence establishes the
following:

1.       Counter-intuitively, an adjuster will often make more money
than a supervisor.  This is largely dependent upon the amount of overtime
available to mechanics and adjusters, but not to supervisors.

2.       Mechanics
can earn significantly more than supervisors.  They are hired through the
union.  There is a collective agreement, but companies sometimes pay higher
wages to attract qualified workers.

3.       The
highest rate for mechanics under the contract is 117 percent of the base rate. 
The plaintiff argues that the evidence suggests that even more than that is
sometimes paid for adjusters and trouble-shooters.  The plaintiff argues that
she aspired to be a trouble-shooter as she approached her 50s.

4.       In
addition to a regular wage, mechanics can earn overtime including double time.

5.       Mr.
Redmond testified that Kone prefers that the more skilled workers be those that
attend for double time work.  In the long run, their skills result in a more
satisfying benefit for the customers, and therefore for the company.

6.       Mr.
Redmond testified that there have been a lot of overtime opportunities
available recently because of a shortage of skilled workers and a construction
boom.  Even though the construction boom has slowed down, the B.C. Safety
Authority is currently upgrading its safety standards.  This will result in an
increased number of projects to modernize older equipment.

7.       Unlike mechanics, supervisors are salaried
employees who do not earn overtime or double time.  They work a minimum of 40
hours per week, but Mr. Redmond testified that it is not uncommon for them to
work extra hours, perhaps upwards of 60 hours per week.

8.       The
opportunities to advance from the position of Service Manager are extremely
limited.  The plaintiff would likely have to move away, probably to a different
province, in order to advance.  Her separation agreement with her husband makes
that an impossibility because it prohibits her from moving more than 20
kilometres away while the children are still minors.

[52]        
Mr. Rein gave evidence as follows:

1.       About his own income as a mechanic at Kone.  The plaintiff
advances this for comparison purposes to establish what she would be capable of
earning if she were still a mechanic.

2.       He works with escalators, and is not as qualified as the
plaintiff on elevators.  His income would be higher if he was.

3.       All
qualified Kone mechanics have similar opportunities to him to earn overtime and
earn similar pay, although elevator mechanics are eligible for double time,
while he is not eligible as an escalator mechanic.  In other words, the
plaintiff would have an opportunity to earn more money than Mr. Rein makes if
she returned to being an elevator mechanic or adjuster.

[53]        
The plaintiff acknowledges that, for some years,
she likely would work less overtime than would actually be available to her
because of her current childcare obligations.  She estimates that she would
have worked approximately 60 percent of the overtime hours that Mr. Rein has
worked.

B.       Conclusion

[54]        
I am satisfied, on a totality of the evidence,
that the plaintiff did not, prior to the MVA, intend to return to work as an
adjuster. 

[55]        
In this regard, I do not conclude that the
plaintiff deliberately lied to me.  She did later wish to return to her former
more physical job, and she has convinced herself with the passage of time that
she did have this belief before the MVA.

[56]        
I am satisfied that it was not until sometime
after the MVA that the plaintiff indicated a desire to return to her former job
as an adjuster.  More specifically:

1.       The
job as supervisor was not a “temporary” position as the plaintiff claims.  The
“probation” to which the plaintiff refers was expressly to enable the employer
an opportunity to assess the work of the plaintiff during the period of
probation.  It in no way suggested that the plaintiff could unilaterally
withdraw from the commitment during or at the end of the period of probation.

2.       Her
promotion, announced to the Kone workforce by an e-mail, dated November 29,
2005, stated that she had “accepted the position of Field Supervisor”. 

3.       The
plaintiff withdrew from the union on January 27, 2006, three weeks after the
MVA, indicating her intention to stay in her job as supervisor on a full-time
basis.  It is clear and unequivocal except for the phrase “… if in the
foreseen future I may possibly come back into the trade.”

4.       The
plaintiff did not have to sign-off on her union job a mere three weeks after
the MVA.  There was no pressure on her to do so.  She had been seen by her
doctor only twice, including a visit on that day.  She had certainly not been
told that she would never be able to return to the tools.  Further, she knew
that Kone had a graduated return to work plan that she could use if it was
needed.

5.       Dr.
Moore reported that her cognitive functions were normal at this time.

6.       Her
supervisor at Kone was not pressuring her, making her think that she was at
risk of losing her employment and should rush to secure the supervisor job.  In
fact, she testified that her supervisor was exceptional, very lenient, and
accommodating.

7.       It
is true that Dr. Moore’s August 18 letter indicates that the plaintiff would
not be able to work as a mechanic in the short term.  However, if the plaintiff
had intended to return to that job, why was such a letter not sent in January
or February 2006, or at least much earlier than August?

[57]        
The evidence fails to establish that the
plaintiff would earn more money as an adjuster than as a supervisor.  More
specifically:

1.       While
it is true that working as an adjuster has great potential for earning
overtime, this does not necessarily mean that the adjuster’s job is of more
value to eligible persons.  The reason is because the supervisor position has a
number of financial benefits which are not available to adjusters and which the
plaintiff has not considered in her calculations.  These include:

(a)      numerous
raises since she began her work as a supervisor in 2006, raises which would not
have been available to her as a union employee.  The raises were in 2007, 2008,
and twice in 2009.  Her raise in 2009 was to the amount of $118,185.84 per
year;

(b)      bonuses;

(c)      a
company-funded pension plan;

(d)      paid
vacation time;

(e)      use
of a company car;

(f)       employer
paid sick days;

(g)      employer
matched contributions to RRSP contributions, of up to 5 percent;

(h)      she
is not subject to being laid off according to seniority during downturns in the
economy, like the massive industries-wide layoffs that left her out of work for
a year in 1992.  She cannot be locked out in a labour dispute; and

 (i)      a
supervisor’s job is less physical; there is therefore a lower risk of injury.  When
working as an adjuster and as a mechanic, the plaintiff had a number of job
related injuries, including a serious one resulting in surgery and an extended
period of time off work.

2.       While
the evidence falls short of establishing the monetary value of the foregoing
benefits available to a supervisor, I am satisfied that the value is
substantial.

3.       In
2009, she was promoted to the position of Service Manager.

4.       Mr. Redmond testified that Kone is very satisfied with
her.  He believes that with her experience in the field, and now in the office
and in accounting, she could become a branch manager.

5.       Mr. Redmond also testified that she likely would have to
leave Vancouver to take a branch manager job at a smaller location, such as
Edmonton.  She would not be eligible for a job as branch manager in Vancouver
until after she had been a branch manager in one of the smaller locations.

6.       The plaintiff’s children will soon be adults
and she will no longer be bound by the separation agreement which limits her
ability to move away.  She therefore will have the option available to her of moving
to a different location to accept a branch manager promotion.  She is highly
motivated in her career, always has been, and, in my view, would make such a
move, when her children are grown, to advance her career.  Alternatively, there
are competitors of Kone in Vancouver, and given her skills and abilities, she
would likely have opportunities available to her to advance her career in that
way.

7.       While
it is undoubtedly true that the opportunities to advance as a Service Manager
are somewhat limited, this is simply because she is approaching the top of her
profession.  The opportunities are no less limited in her job as an adjuster. 
If she wished to continue to advance with the company, there is nowhere else to
go except into the supervisor’s position which she had already chosen.

[58]        
On the basis of all the evidence, the evidence
does not raise the substantial possibility that the plaintiff would earn more
in the future if she were able to work as an adjuster than she is going to be
earning as a supervisor.

[59]        
In addition to the mathematical considerations
indicating that she would make no more money as an adjuster, there is an
additional reason to conclude that the plaintiff chose the job as a supervisor
because of a benefit that an adjuster’s job does not have: she has a regular
work schedule, which fits better with her current home life.  Her partner has
been an elevator mechanic apprentice since 2007, and works six days a week,
plus overtime.  He relies on the plaintiff to be available when he is not
around.  She has testified that she considers her family to be her first
priority.

[60]        
With respect to the plaintiff’s concern that she
enjoys the adjuster’s work more, she knew when accepting her new job that its
job description included assistance to maintenance mechanics on a job where
they may be having trouble.  Therefore, she still has available to her that
part of the job that she likes best – trouble-shooting challenging jobs,
although not every day.

Past Wage Loss

[61]        
The plaintiff claims that she has a net income
loss, from the date of the MVA to mid-November 2009 (the date of trial), of
$39,690 based upon the following:

1.       a
determination that she would have returned to her work as an adjuster but for
the MVA injuries;

2.       determining
her income by reference to what  Mr. Rein earned during the same period as a
mechanic, but reducing her overtime to 60 percent of his (because it was her
intention to work less overtime so she could spend more time with her children);
and

3.       calculating
the difference between what she would have earned (by reference to Mr. Rein)
and what she in fact earned as an adjuster.

[62]        
The defendants argue as follows:

1.       If the plaintiff had intended to return to
work as an adjuster, she was capable of doing so.  In this regard, the
defendants rely upon the evidence of Dr. Moore and the Functional Capacity
Evaluation of the OT, Mr. Winter.  That report suggests that she had the
ability to do a good deal of the work that an adjuster performs.   It also
contained her self-assessment that, after a day of testing, her pain level had
risen from a one to a two out of 10.

2.       Therefore, since she could have returned to
work as an adjuster, she cannot be seen to complain that she was prevented from
earning an adjuster’s wage.  Such a return to work as an adjuster could have
been done with an appropriate graduated return to work program, which is
offered by Kone, and with a minimal increase in symptoms.

3.       Alternatively,
choosing to remain as a supervisor caused her no wage loss at all.  Her
earnings as a supervisor are arguably greater than what she would have earned
as an adjuster, and certainly no less.

[63]        
On a consideration of all of the evidence, I
make the following findings:

1.       The plaintiff’s injuries have made it
impossible for her to return to work as an elevator mechanic or adjuster. 
Despite her high level of motivation and best efforts, I am satisfied that she
will not be able to do the job without a great deal more difficulty than she
had in the past, and a great deal more pain and discomfort while working and on
subsequent days.  These difficulties would make it impossible for her to do
that job again to the satisfaction of herself or her employer.

2.       In coming to that conclusion, I rely in
particular upon the following:

 (a) Dr. Moore’s evidence that the plaintiff
had not shown any improvement in her symptoms for more than a year before March
10, 2009;

 (b) Mr. Winters, the OT, concluded after a
day of testing that the plaintiff, despite her motivation and best efforts,
“… does not possess robust tolerances to durably meet her pre-injury work
demands as an elevator mechanic at this time”; and

 (c) the undoubted high motivation that the
plaintiff has shown throughout her life.

3.       The plaintiff maintained her supervisor’s
job, which it was her intention to do at all relevant times, and lost no pay as
a result.  Further, she was not denied, nor did she fail to obtain, any work
which would have paid her more than she earned as a supervisor.

4.       Even if she had intended to work as an
adjuster, the evidence of comparison with Mr. Rein is not useful.  He is an
escalator mechanic, rather than an elevator mechanic.  It is impossible to
compare what he has earned to what she might have earned.  Further, he has
worked a great deal of construction (which allows for much more overtime)
compared to the plaintiff who was busy with her service contract, including VGH.

5.       The plaintiff’s calculations do not take into
account the value of the various benefits, referred to earlier in this
judgment, available to a supervisor which are not available to an adjuster.

6.       The
evidence presented by the plaintiff is simply insufficient to support the
calculations which the plaintiff asks the court to accept.  It is impossible to
conclude that there was any wage loss at all.

[64]        
Considering all of the evidence, I am satisfied
on a balance of probabilities that the plaintiff did not suffer a past wage
loss as a result of this accident.  Therefore, the plaintiff’s claim for past
wage loss is dismissed.

Impaired Earning Capacity

[65]        
Since the submissions of counsel after trial,
but before this decision was pronounced, the Court of Appeal decision in Perren
v. Lalari, 2010 BCCA 140, was delivered.  In view of its implications under
this head of damages, I sought from counsel and have now received and
considered additional submissions.

[66]        
Perren reconciles
past decisions which have struggled with the question of whether damages are
available under this head to a plaintiff who has demonstrated a diminishment in
earning capacity but who cannot demonstrate any substantial possibility that
the lost capacity will result in a pecuniary loss.

[67]        
The answer from the Court of Appeal is “No”.  To
succeed, a plaintiff must first demonstrate that there is a real and
substantial possibility of a future event leading to an income loss.

[68]        
In this case, I have already found that the
plaintiff earns as much as a service manager as she would if she were able to
work as a mechanic.  There is nothing in the evidence which raises the
substantial possibility that this is going to change at any time in the future.

[69]        
The plaintiff will continue to suffer negative
effects due to her injuries and has been denied a range of occupations,
including that of being an elevator mechanic/adjuster.  Nevertheless, there is
no substantial possibility that this lost capacity will result in an actual
income loss, now or at any time in the future.  The reasoning that flows from Perren
leads therefore to the conclusion that the plaintiff is not entitled to be
compensated under this head of damages.

[70]        
Having said that, the loss of the ability to
work in a profession which she loves, and from which she would have earned an
income roughly equal to what she is now earning in an occupation she finds less
fulfilling, is something she is entitled to be compensated for as a factor to
be considered in assessing non-pecuniary damages.

LOSS OF CAPACITY TO DO HOUSE REPAIRS

[71]        
The plaintiff argues that before the MVA she personally
carried out repairs and renovations at her home.  She has replaced kitchen cabinets,
floors, linoleum, and drywall.  She also did electrical work necessary for
lighting, gutted and rebuilt the master bedroom and did associated plumbing
work, expanded a downstairs room with the assistance of a contractor, and
framed and drywalled ducts in the ceiling downstairs.  Her friend, Ms. Fidel,
testified that the plaintiff would generally be busy doing something around her
home whenever Ms. Fidel visited.  In addition, when Ms. Fidel was
doing renovations around her own home, the plaintiff was there to help out.

[72]        
Since the MVA, the plaintiff argues that she has
not been able to do home repairs.  She has had to hire friends or trade persons
to complete even simple tasks, such as installing siding or painting.

[73]        
In addition to repairs and renovations around
her own home, the plaintiff makes a claim with respect to her inability to
perform necessary renovations on a rental property that she purchased in
Penticton shortly after the MVA.  She testified that she would have personally
performed the necessary renovations but as a result of the MVA injuries, she has
had to hire others to do that work.

[74]        
The plaintiff concedes that it is difficult to
put a precise value on the work she would have done.  She claims special
damages in the amount of $7,755.43 for the labour cost of repairs and
renovations, which averages approximately $2,000 per year.  She argues that
this understates her loss because it does not include renovations which were
not performed because of the MVA, and also excludes projects where her friends
assisted without charge, such as tiling work.

[75]        
The plaintiff argues that $3,500 per year is a
reasonable and conservative estimate of the value of repairs and renovations
that she would have done but for the MVA.  She then argues that a multiplier,
calculated according to the evidence of Mr. Carson to age 70, should be applied
resulting in a present loss totalling $66,115.

[76]        
She suggested $65,000 is an appropriate award
for the loss of her capacity to perform these repairs.

[77]        
The defendants argue that the plaintiff should
receive no monetary award under this head of damages for the following reasons:

1.       She bought the rental property after the MVA.  She knew
about the extensive work that was going to be necessary.  She apparently
intended to drive to Penticton on her weekends to do the work.  The defendants
argue that:

(a)      the defendants should not be responsible for the repairs on
the Penticton property since it was purchased after the MVA.  She had the
option of not buying it all.  What if she buys two or three or even four more
investment properties in the future?  Will the defendants be liable for
renovations to those as well?;

(b)      it is unlikely she would have travelled to Penticton to
perform this work; and

(c)      the renovations with respect to the Penticton property,
apparently $2,616, were all incurred in 2006.  This suggests one-time expenses,
not ongoing expenses.

2.       The fact that she has done $7,755 on home improvements in
the last four years does not establish that she will spend $3,500 per year in
the future until age 70.  This is unreasonable.

3.       The MVA was not the cause of the plaintiff’s loss of
interest in home projects.  After her separation, the plaintiff’s interest in
pursuing renovations had taken a back seat to her sporting activities; work to
be done after the addition to her house in about 2003 still remained undone in
2006.

4.       There is no evidence of any renovation project that she
would have done but did not do due to her injuries.

5.       The
plaintiff assisted her friends when they did renovations, so it is reasonable
to assume that they would assist her without compensation.

LOSS OF
HOUSEKEEPING CAPACITY

[78]        
The plaintiff argues that she suffered a loss of
housekeeping capacity.  Her most significant impairment is with respect to
gardening and maintaining her yard.  She can no longer mow her lawn or prune
her trees.  She is no longer able to carry out chores she used to be
responsible for around the home.

[79]        
She submits that she will likely require an
average of two hours of assistance per week with tasks inside her home and five
hours each week for six months of the year in the garden.  The plaintiff
suggests $15 per hour for annual costs of $3,510 per year.  Mr. Carson prepared
a table indicating that the present value of this cost to the age of 70 is
$66,303.90.

[80]        
The plaintiff suggests a figure of $65,000 is a
reasonable assessment of damages for loss of housekeeping capacity.

[81]        
The defendants argue as follows:

1.       There was evidence that the plaintiff no longer vacuums the
stairs or does yard work.  However, she has also entered into a new
relationship, and Mr. Speed and his 14-year-old daughter contribute in these
areas.  This is part of the “normal give and take that necessarily is part of
family life”: Campbell v. Banman, 2009 BCCA 484 at para. 19.

2.       There was no evidence of an appropriate hourly rate for
services, and no evidence that anything has been spent to date.  This is
precisely what the Court of Appeal is cautioning against in Campbell.

3.       The
plaintiff should receive no award of damages under this head.

SPECIAL
DAMAGES

[82]        
The plaintiff provides a number of receipts
totalling $12,236.53.

[83]        
With respect to some of those receipts, the
defendants argue as follows:

1.       With
respect to the claim for medication expenses totalling $98.78, the plaintiff
has provided receipts totalling only $8.98.

2.       The
doctor did not recommend that the plaintiff go to a chiropractor or purchase
special pillows, a mattress topper, or any neck collars.

3.       The
plaintiff’s inability to teach her children how to snowboard should not result
in the defendants having to pay for their lessons.  The evidence suggests that
they were taking lessons since they were eight years old.

4.       The
plaintiff is not entitled to a refund of $550 for her Cypress Bowl ski pass. 
She had the benefit of it from the start of the season, around November 11,
2005, until the date of the accident.  At best, she is entitled to a pro-rated
amount.

5.       The
plaintiff is not entitled to a refund for the full cost of being a member of
Jenny Craig.  Part of those fees cover the cost of food.

[84]        
The defendants submit that $4,500 is an
appropriate amount to compensate the plaintiff for special damages.

DECISION

Non-pecuniary Damages

[85]        
The plaintiff submits that the appropriate range
is $90,000 to $110,000.  She refers me to the following cases in support of
this claim: Foran v. Nguyen et al., 2006 BCSC 605; Gosal v. Singh,
2009 BCSC 1471; Love v. Pai, 2003 BCSC 900.

[86]        
The defendants submit that the appropriate range
is $25,000 to $50,000.  They rely upon the following cases: Lopez v. VW
Credit Canada Inc., 2008 BCSC 320; Robinson v. Anderson, 2009 BCSC
1450; Lo v. Chow, 2009 BCSC 817; Salvatierra v. Vancouver (City),
2008 BCSC 537; Ching v. McCabe, 2006 BCSC 1589; Wilson v. Manzano,
2009 BCSC 1419.

[87]        
With the exception of the question of her
pre-MVA intention to return to her previous job, I accept that the plaintiff
has told me about her injuries and their impact on her life.  I found her
credible, impressive, and compelling.  She is highly motivated to return to a
physically active lifestyle, but will never be able to return to her
pre-accident self.  As a result of her injuries, the plaintiff has lost the
ability to follow a career path and job that she loved, which has greatly
affected her quality of life.

[88]        
This MVA has had a profound effect on her life
and the award must reflect that reality.

[89]        
I award her $100,000 for non-pecuniary damages.

Past Wage Loss

[90]        
For the reasons previously stated, I dismiss the
claim for past wage loss.

Impairment of Earning Capacity

[91]        
For the reasons previously stated, I dismiss the
claim for impairment of earning capacity.

Loss of House Repair Capacity

[92]        
The plaintiff submits that the appropriate
amount is $65,000.

[93]        
The defendants submit that the appropriate
amount is zero.

[94]        
I agree with the defendants to the extent that
the evidence does not suggest that the loss over her lifetime will be $65,000. 
However, I do not agree that she is entitled to receive nothing at all under
this head of damage.  The deficiency in the evidence is in establishing the
amount, not in establishing the entitlement.  In all of the circumstances
before me, the evidence establishes that the correct assessment of this loss is
$20,000.

Loss of
Housekeeping

[95]        
The plaintiff submits that the appropriate
amount is $65,000.

[96]        
The defendants submit that the appropriate
amount is zero.

[97]        
Damages for loss of housekeeping capacity should
be arrived at by assessment and not by arithmetical calculation where there has
not been any actual expenditure and the court is simply estimating the value of
the loss: Campbell v. Banman, supra.

[98]        
I agree with the defendants to the extent that
the evidence does not suggest that the loss over her lifetime will be $65,000. 
However, I do not agree that she is entitled to receive nothing at all under
this head of damage.  The deficiency in the evidence is in establishing the
amount, not in establishing the entitlement.  In all of the circumstances
before me, the evidence establishes that the correct assessment of this loss is
$20,000.

Special Damages

[99]        
The plaintiff claims $12,236.53 and submits a
number of receipts and/or oral evidence in support of them.  The defendants
take issue with a number of them.

[100]    
I have considered the defendants’ arguments and
I am of the view that the following claims should be reduced:

Ski Lessons –                    In my
view, the children’s lessons are too remote from the defendants’ negligence to
be recoverable as a special damage.  Therefore, I am disallowing the total
amount claimed of $211.15.

Cypress Bowl Pass –         The plaintiff
has failed to establish when the ski season might end and what pro-rated
portion of the pass she may have already used.  In the circumstances, I am
disallowing $350 of the $550 claim.

Jenny
Craig –                    The plaintiff has failed to establish what portion
of the $392 claimed represents food, for which she is not entitled to be
compensated.  In the absence of any evidence on this point, I am disallowing $300
from the $392 claim.

[101]    
With respect to the defendants’ arguments
dealing with other special damages, I am satisfied of the following:

1.       Her oral evidence with respect to those
medication items where receipts are not provided satisfies me, nevertheless,
that it is appropriate to reimburse them.

2.       I am satisfied that all of the chiropractic
expenses are appropriate and made necessary as a result of the accident.

3.       I am satisfied that all of the home
renovation expenses claimed are properly compensable.

4.       I
am satisfied that all the quasi-medical support equipment expenses are properly
compensable.

[102]     Therefore, the award for special damages is in the amount of $11,375.38.

TOTALS:

COSTS

[103]    
If the parties wish to address me with respect
to the matter of costs, they may do so.  Otherwise, costs will be in the cause.

“Silverman
J.”

_______________________________

The Honourable Mr. Justice Silverman