IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20100526

Docket: M56234

Registry:
Nanaimo

Between:

Karen Mendoza-Flores

Plaintiff

And

Patricia Louise Haigh

Defendant

Docket: M56235

Registry:
Nanaimo

Between:

Karen Mendoza-Flores

Plaintiff

And

Timothy Lloyd Harmeson

Defendant

SUBJECT
TO RULE 66

Before:
The Honourable Mr. Justice Harvey

Reasons for Judgment

Introduction

[1]          
The plaintiff, Karen Mendoza-Flores, was injured in two separate motor
vehicle accidents, both of which occurred on Departure Bay Road in Nanaimo,
British Columbia. The first accident, involving the first defendant, Patricia
Haigh, occurred on September 24, 2007. The second accident, involving the second
defendant, Timothy Harmeson, occurred on May 7, 2008.

[2]          
In each accident the plaintiff was sitting in the front passenger seat
and wearing a seatbelt in her friend’s late model Pontiac Grand Prix.

[3]          
Liability has been admitted by the respective defendant in each accident.
The only issue in each is whether the plaintiff suffered injuries in each of
the accidents and, if so, the measure of damages flowing from such injuries.

[4]          
The parties consented to the two actions being heard together. Both
actions are governed by Rule 66.

Facts

Background

[5]          
The plaintiff is currently 25 years old. She is in a relationship with
Nanad Biga and lives with him in an apartment in Nanaimo. She is employed as a hair
stylist for the Cutting Room, a local hair salon.

[6]          
Prior to the first accident, the plaintiff was in good health and, more
particularly, did not suffer from any pain or injury in her back, neck or left
shoulder.

[7]          
At the time of the first accident, the plaintiff was attending Vancouver
Island University enrolled in a 10 month course in hair styling. Previous to
her enrolment, she had been an assistant manager at the Gap. She envisioned a
long term career with the Gap and knew the transition to student, followed by
further on the job training as a hair stylist, would impact unfavourably on her
earnings. Her earnings in the year prior to the accident were approximately
$27,000.

[8]          
Her coursework made full time work impractical, if not impossible, and
she had given up her managerial position with the Gap to work part time as a
sales associate at the time of the first accident.

[9]          
The plaintiff enjoyed participating, informally, in a number of sporting
activities prior to the first accident including swimming racquet sports and
running.

[10]       
She was in a relationship with another man at the time of both
accidents. She began living with Mr. Biga in January 2010.

The First Accident

[11]       
On September 24, 2007, the plaintiff was driving to a local mall in the
company of a schoolmate, Ms. Rodriguez. They were stopped to make a left hand
turn off of Departure Bay Road at the time of the collision. The plaintiff was
wearing a lap and shoulder seatbelt and was slightly turned to her left to
speak to Ms. Rodriguez. She had no forewarning of the impending accident.

[12]       
She stated she felt a bump similar to the car stalling and lurching
forward. Only when she looked at the expression on her friend’s face did she
realize she had been hit from the rear by the vehicle driven by the defendant, Ms.
Haigh.

[13]       
Ms. Rodriguez was distressed about the accident and, while the evidence
as to whether she spoke to Ms. Haigh about the accident is disputed, it is
clear that the plaintiff was the one who exchanged driver’s information with Ms.
Haigh. The plaintiff denied any injury to Ms Haigh. Eventually both Ms.
Rodriguez and the plaintiff departed the scene of the accident and attended a
nearby pharmacy.

[14]       
The damage to both vehicles was minor. The Grand Prix occupied by the
plaintiff and her friend had less than $500 in damage and the Chevrolet Tracker
driven by Ms. Haigh had none.

[15]       
The extent of the damage to the vehicle occupied by the plaintiff was
two puncture marks in the bumper and a crack in the foam absorption pad behind
it; both required replacement.

[16]       
Although she described the impact as minor, Ms. Haigh estimated her
speed, at the time of impact, at 20 kilometres per hour. While I do not necessarily
take that to be an accurate assessment of her speed, given the resultant
damage, I take from Ms. Haigh’s evidence that the impact was at a speed above
which one would generally describe as low velocity.

[17]       
Although the plaintiff suffered no symptoms immediately following the
impact, both the plaintiff and Ms. Rodriguez testified that they began to
experience symptoms shortly following the accident while shopping in London
Drugs. Both described pain in the neck and back area. The plaintiff complained
of symptoms in her left shoulder area as well.

[18]       
A joint decision was made to attend the local hospital for assessment.
They were seen in the Emergency ward and eventually released. The plaintiff was
provided a note from the assessing physician excusing her from both coursework
at school and her part time position with the Gap. She was also was advised to
contact her family physician for follow up.

[19]       
On September 26, 2007, the plaintiff attended her family physician, Dr.
Irvine. Dr. Irvine is the only medical doctor to provide an opinion as to her
medical condition in respect of either of the two accidents in which she was
involved. Owing to her ongoing complaints at the time of her visit, the
plaintiff was prescribed medication in the form of muscle relaxants and was
referred to physiotherapy.

[20]       
She described her symptoms to Dr. Irvine who, in a medical report dated
August 26, 2009, stated:

She felt pain under the ribs and went to the hospital. Her
left arm was sore and she felt neck pain. She saw the Emergency doctor and she
reports her left neck was puffy. She was prescribed Emtec 30 and Naprosyn 500
plus Flexeril. She was advised to attend physiotherapy.

On examination, neck extension was 0-5, flexion was normal,
turning 20 and bending twenty. Trapezius was painful on the left moreso than on
the right. She had some discomfort in the anterior sternocleidomastoid and left
arm. On 10/09/07, she reports cracking in her shoulder on the left in the left
shoulder blade. She was getting sharp pulls in the neck and left arm. Her neck
was sore to move and her upper shoulders were painful. She is off work because
she can’t lift and can’t stand too long. She has been to physio with Janice at
Summit. On examination her occiput is tender, paracervical areas are tender and
tender trapezius and periscapular areas. She was advised to continue off work
this week.

[21]       
Over the month or so following the accident, the plaintiff missed a
number of shifts with the Gap resulting in an agreed upon wage loss of $362.72.

[22]       
The plaintiff embarked upon a series of 11 physiotherapy treatments with
Summit Physiotherapy. By November 26, 2007, she had stopped all active
treatment. She continued taking medications, although the frequency of usage
dropped as time passed.

[23]       
The plaintiff saw Dr. Irvine twice more relating to the first accident,
on October 9, 2007 and November 5, 2007.

[24]       
The plaintiff testified that she had not fully recovered from the
problems she associated with the first accident at the time of the second
accident on May 7, 2008. The complaints she had related to her back, neck and
left shoulder area. Activity involving her neck or shoulder would bring on
headaches.

[25]       
Despite these concerns, the plaintiff was able to return to her courses
and work within a few days and carried on with her training until graduation.
Her marks, on completion of her course work, were all A’s and A minuses. She
was offered a practicum at her present employer’s place of work and obviously
impressed them sufficiently such that she was offered full time work upon the
completion of the practicum in June 2008.

The Second Accident

[26]       
On May 7, 2008, once again in the company of Ms. Rodriguez, the plaintiff
was involved in the second accident. The plaintiff was once again the front
seat passenger and was wearing a lap and shoulder belt. The accident occurred
at a different location on Departure Bay Road but was, again, a rear-end
collision. In this accident, the defendant, Mr. Harmeson, acknowledged that he
was travelling at approximately 25 kilometres per hour at the time of impact.
It is not clear whether the vehicle occupied by the plaintiff was at a stop or
moving forward slowly at the time of the accident. There was extensive damage
to the hood and front end of the Pontiac Firefly driven by the Mr. Harmeson. There
was approximately $3,000 worth of damage to Ms. Rodriguez’s vehicle. Most of
the damage to her car was to the bumper, absorption pad and exhaust system.

[27]       
The plaintiff, as in the first accident, had no forewarning of the
accident. She was once again was the person who dealt with the exchange of
driver’s information. Ms. Rodriguez was upset about being in a second accident.
She took pictures of the Mr. Harmeson’s vehicle on her cell phone demonstrating
the damage to it. Mr. Harmeson had apparently tried to bend the hood of his
vehicle to close it and allow his vehicle to be driven from the scene to an
area nearby so the parties could exchange information off of the driven portion
of the roadway.

[28]       
Ms. Rodriguez was nauseous following the collision and eventually threw
up at the side of the road. An ambulance was called and both the plaintiff and Ms.
Rodriguez were removed from the scene of the accident by ambulance and taken to
hospital. Neither was kept overnight. X-rays taken of the plaintiff’s back and
shoulder area were negative for bone injury. The plaintiff was picked up from
the hospital by her then boyfriend and returned home.

[29]       
The plaintiff was once again provided with a note excusing her from both
work and school for the next several days. She says by her return home she was
in a lot of pain.

[30]       
The plaintiff testified that she began to experience a reoccurrence of
the symptoms which had gradually been diminishing since following the first
accident. These complaints, according to the plaintiff, remained largely
unresolved at the time of trial.

[31]       
Although the plaintiff has continued working as a stylist at the Cutting
Room, she testified, and was supported by the evidence of her employer, Fiona
Johnston, that she has trouble keeping up the expected performance level in
terms of production. According to both the plaintiff and Ms. Johnston, her
advancement and income have suffered as a result.

[32]       
Currently, the plaintiff is classified as a level two stylist. The
plaintiff claims, having regard to the length of time following her graduation,
that if not for the injuries she has suffered, she would have already achieved
the status of a level 3 stylist. Instead, she has been given a partial raise
and sits between the two levels in terms of her compensation.

[33]       
Ms. Johnston made it clear that there is no concern about the level of
the plaintiff’s skill or desire. She is well regarded by her employer for her
attitude and willingness to learn. However, according to Ms. Johnston and
others, the plaintiff is visibly affected by pain after a long day and several modifications
to the salon’s training program have been implemented to facilitate the
plaintiff’s reduced tolerance.

[34]       
The plaintiff continues to avoid sporting activities and has reduced capacity
within the home. She is incapable of lifting heavy laundry baskets, vacuuming
and carrying large grocery bags. As a result, her boyfriend does most, if not
all, the vacuuming, and has assumed most of the heavy chores within the
household. The plaintiff experiences an increase in symptoms following heavy
activities such as vacuuming, sporting activities or when she performs haircuts
all day at work.

[35]       
Her only active treatment following the second accident was a series of 17
more physiotherapy treatments. She continues to treat her discomfort with non-prescription
medications which she takes “a couple of times a week”.

[36]       
The plaintiff’s major concerns are that she is slower at work and unable
to participate as fully in the recreational activities she enjoyed before the
accidents.

[37]       
The symptoms described by the plaintiff were confirmed, to some extent,
by a series of witnesses who described her demeanour and level of activity
following both the first and second accident. I have not considered the
opinions of any of the witnesses relating to their views as to how much the
plaintiff suffered. It does appear from the whole of the evidence that the
plaintiff has been less active since the first accident.

[38]       
Dr. Irvine, after seeing the plaintiff some five days following the
second accident, noted that she complained of an increase in her symptoms. She
was prescribed Naprosyn once again and advised to take time off work.

[39]       
The plaintiff attended for a physical examination on September 16, 2008
and, seemingly as an aside, mentioned to Dr. Irvine that she noticed more pain
with increased work.

[40]       
She did not see Dr. Irvine again until April 25, 2009, at which time she
continued to complain of discomfort and he, for the first time, noticed
positive nodules in the trapezius muscles. He further noted the muscles were
“positive for stiffness and soreness”. The plaintiff had a good range of motion
and was advised to continue with heat, stretching and strengthening exercises.

[41]       
The plaintiff states she has routinely followed Dr. Irvine’s advice
regarding stretching and strengthening exercise, although her evidence is
somewhat at odds with that of Mr. Biga, who says he has only noticed her
stretching occasionally and for brief periods since they began cohabiting.

[42]       
The only other investigation into the plaintiff’s condition was a
referral for a functional capacity evaluation. Upon receiving the report of Mr.
Sumner, the plaintiff’s expert in this regard, the defendant had a similar
evaluation done by Dr. Cook.

[43]       
Both experts submitted reports. Mr. Sumner was called for cross-examination,
but Dr. Cook was not. Other than Dr. Irvine, no further medical involvement was
sought by the plaintiff.

[44]       
The two functional capacity evaluators agreed on one thing; the
plaintiff exerted maximal effort at the testing by each of them and showed no
signs of pain magnification. Mr. Sumner went further and opined that the
plaintiff attempted to over-achieve, an event he described as uncommon.

[45]       
Ultimately, the two assessors disagreed as to what effect the residual symptoms
claimed by the plaintiff will have on her career as a hair stylist. Mr Sumner conducted
his assessment over two days. In his view, this was optimal to indicate the
effect, over the longer term, of simulation of work related activities upon the
plaintiff’s complaints and abilities to carry on. Dr Cook conducted similar
testing over the course of just one day.

[46]       
Mr. Sumner modified one of the standard tests, the Purdue Pegboard
Manual Dexterity Test, to more closely duplicate the effect of elevation of the
plaintiff’s arms. The logic behind the modification was said to be that it more
closely resembled the actual tasks expected of the plaintiff at her work place,
specifically the continued use of her hands with arms at or above shoulder
level.

[47]       
Mr. Sumner observed what he described as potential tendon impingement, a
phenomenon not seen by Dr. Cook. Additionally, on the second day of testing he
both felt and heard the clicking of the left shoulder of which the plaintiff
complained.

[48]       
Ultimately, Dr. Cook was of the view the plaintiff had no loss of
functional capacity. Mr. Sumner felt that performing the tasks of a hair
stylist over the long term would have the effect of causing further increase in
symptomology or an impairment of the plaintiff’s pace and make her non-competitive
in the field of hair styling.

[49]       
Arising from the divergence of opinion between the two functional
capacity assessors is the question of whether the plaintiff has suffered a loss
of her future earning capacity and whether she is less capable of doing
household chores so as to militate in favour of an award for loss of housekeeping
capacity.

Position of the Parties

[50]       
There are two major differences between the positions of the parties.

[51]       
The defendant submits that the first accident was incapable of causing
the injuries complained of the plaintiff and that I ought conclude, as a result
of the limited damage to the two motor vehicles involved, that her injuries
were not as severe or of as long a duration as described by the plaintiff.

[52]       
Alternatively, I am urged to find the resultant injury to have
completely resolved shortly following the plaintiff’s return to her employment
at the Gap. In support of this contention, counsel has drawn my attention to
the lack of medical treatment and investigation between November 2007 and the occurrence
of the second accident in May 2008.

[53]       
The second area of contention relates to the issue of the plaintiff’s
claim of loss of capacity arising from the totality of the two accidents. The
defendant submits there is no real possibility that the plaintiff will suffer a
diminution of her earning capacity as a result of what the defendant describes
as the modest residual symptoms of the plaintiff.

[54]       
Regarding as the relationship between the damage to the two vehicles and
the resultant claim for injuries suffered by one of the occupants, it is trite
law that the fact that the damage to the plaintiff’s vehicle was minor does not
lead to a conclusion that the resultant injuries are also minor: Gordon v.
Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.).

[55]       
Here, even in the absence of such a principle, I would conclude that on the
evidence of Ms. Haigh, the impact was a substantial one.

[56]       
I was referred by counsel for the defendants to the oft quoted Price
v. Kostryba (1982), 70 B.C.L.R. 397 at paras. 4-7 (S.C.):

[4]        Perhaps no injury has been the subject of so much
judicial consideration as the whiplash. Human experience tells us that these injuries
normally resolve themselves within six months to a year or so. Yet every
physician knows some patients whose complaint continues for years, and some
apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at
fair and reasonable compensation….

[5]        In Butler v. Blaylock, [1981] B.C.J. No. 31,
decided 7th October 1981, Vancouver No. B781505, I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved. I then said:

[6]        I am not stating any new principle when I say that
the court should be exceedingly careful when there is little or no objective
evidence of continuing injury and when complaints of pain persist for long
periods extending beyond the normal or usual recovery.

[7]        An injured person is entitled to be fully and
properly compensated for any injury or disability caused by a wrongdoer. But no
one can expect his fellow citizen or citizens to compensate him in the absence
of convincing evidence – which could be just his own evidence if the
surrounding circumstances are consistent – that his complaints of pain are true
reflections of a continuing injury.

[57]       
Here, I find, on balance, the evidence of the plaintiff is credible as
to the immediate onset of her symptoms following the first accident and the
recurrence following the second accident.

[58]       
The plaintiff’s evidence is corroborated by Dr. Irvine’s report
detailing the positive trapezius nodules and confirmed in Mr. Sumner’s
description of both the shoulder clicking and his initial observation of
elevated muscle in the affected areas of the plaintiff’s left shoulder and
back.

[59]       
I also consider portions of the evidence of the various lay witnesses
who gave examples of lessened activity levels of the plaintiff, particularly
following the second accident.

[60]       
Both functional capacity assessors agreed the plaintiff was not
magnifying her symptoms.

[61]       
In the result, I find that the plaintiff has experienced a moderate soft
tissue injury which continues to cause both discomfort and poses problems in
her employment to the present time.

[62]       
The plaintiff never fully recovered from the effects of the first
accident although it would seem, from the evidence, she was heading toward a
complete resolution of her symptoms. Her symptoms just before the second
accident were appreciably better than they are presently.

Non-Pecuniary Damages

[63]       
The plaintiff suggests a global range of damages of $40,000 to $50,000,
relying upon Gordon v. Timins, 2009 BCSC 1082; Deiter v. Briggs,
2009 BCSC 914; and Wery v. Toulouse, 2006 BCSC 823.

[64]       
Counsel for the defendants submits that if I find an injury arose from
the first accident, it must, because of the modest vehicular damage, be minor.
An award of $3,500 to $5,000 is suggested.

[65]       
I have indicated earlier that I do not ascribe to the view that the
plaintiff was not injured or injured only slightly in the first accident;
however, I do agree the second accident was more severe in terms of its lasting
impact upon the plaintiff’s physical condition.

[66]       
In respect of the second accident, counsel for the defendants submits
that an award of $22,500 to $25,000 would adequately compensate the plaintiff
for her loss of amenities as well as pain and suffering. He relies upon Goertz
v. Kujala, 2006 BCSC 667; Job v. Van Blankers, 2009 BCSC 230; Bourdin
v. Ridenour, 2009 BCSC 1295; Boyd v. Shortreed, 2009 BCSC 1468; and Way
v. Frigon, 2001 BCSC 573.

[67]       
While unresolved to some extent, I do not view the evidence as proving
the plaintiff’s injuries as permanent. Both from an investigative and treatment
standpoint it appears there were, and are, further steps available to the
plaintiff.

[68]       
Reviewing her injuries and comparing them to the authorities I have been
referred to, I conclude that $40,000 represents a proper global assessment of
the plaintiff’s general damages arising from the two accidents.

[69]       
As between the two accidents, having concluded that the second accident
brought on a recurrence of symptoms which were on their way to resolution, I
apportion $7,500 to the first accident and $32,500 to the second accident.

Past Wage Loss

[70]       
Past wage loss for the first accident was agreed at $362.72, should I
find the plaintiff’s absence from work was attributable to the accident.

[71]       
I so find and award the sum of $362.72. It was not made clear whether that
figure was net of income tax payable. Counsel should determine the appropriate
net award and, in the event of disagreement there will be liberty to apply.

Past Loss of Opportunity

[72]       
The plaintiff submits that her progression from junior stylist to senior
stylist has been delayed because of the injuries she sustained and the effect
of them upon her ability to both train and work at the pace required by her
employer.

[73]       
That there has been some delay in the plaintiff’s progression is
supported in the evidence by the testimony of her employer, Ms. Johnston.

[74]       
Ms. Johnston stated that but for the slower pace at which the plaintiff works;
she would have achieved pay parity with two other stylists who graduated from
Vancouver Island University the year before the plaintiff.

[75]       
With respect, this makes little sense given the lock step progression
detailed by Ms. Johnston in her evidence. The anticipated length of time needed
to progress from a level one stylist to a level two stylist was said to be nine
to twelve months. The progression from level two to level three was said to be
six to nine months. Given the plaintiff has been employed for less than two
years, and is said to be on the cusp of level three employment, it is difficult
to understand how she could be expected to achieve parity with graduates from
one year before her.

[76]       
Nonetheless, having found the plaintiff suffered injuries which have
reduced her efficiency at work; I accept that there has been some delay in
achieving the salary she would have already received but for the injuries.

[77]       
The difference in compensation between the plaintiff and the two
employees referenced by Ms. Johnston amounts to an average of approximately
$6,000.

[78]       
Counsel for the defendant advanced a pure mathematical formula which is
said to capture the difference in earnings, over the course of time between the
commencement of her employment in June 2008 and the present, at between $2,700
and $4,300. These calculations are based on gross wage differential.

[79]       
Given the acknowledged differences in the rates of progression of
different individuals, I can only estimate the economic consequences over the
two year period under consideration. Accordingly, I award the plaintiff $3,000
for loss of past economic opportunity.

Loss of Future Earning Capacity

[80]       
Premised on the functional capacity assessment and the brief reference
in the report of Dr. Irvine dated October 1, 2009, stating the plaintiff should
avoid “overhead work with heavy lifting in that posture”, the plaintiff says
her future earning ability is impaired.

[81]       
The plaintiff submits an award in the area of $20,000 should be made
under this heading.

[82]       
The plaintiff’s present hourly income is $12 plus a share of gratuities
and commission from product sales she makes within the salon. No particulars regarding
the later forms of income were provided.

[83]       
Her income from employment in 2009 was $15,238.76, as per the T4 slip
tendered at trial.

[84]       
The theory of the plaintiff is that she is less able to work at the pace
her employer requires and, in the result, will require more time to complete
set fee assignments, thereby reducing her future income potential.

[85]       
The defendants point to the functional capacity report of Dr. Cook which
concluded there was no impairment of the plaintiff’s functional capacity.

[86]       
Mr. Sumner was of a different opinion. He modified one of the
standardized tests to more closely duplicate her actual work performance. He
found that she showed increased elevation in muscle tone and attendant
complaints of shoulder pain as the testing progressed into the second day.

[87]       
The defendant challenges the validity of the testing because of the lack
of normative data against which to compare his conclusions. Mr. Sumner
maintained his view that working at the pace required by other stylists and
working in a position where her arms were elevated, as seems to be required for
hair styling and blow drying, she would either need increased rest breaks or
run the risk of further problems with her left shoulder and upper back.

[88]       
The test for future income loss was recently discussed in Perren v.
Lalari, 2010 BCCA 140 at para. 32:

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A.
in Romanchych, that there is a real and substantial possibility of a
future event leading to an income loss. If the plaintiff discharges that burden
of proof, then depending upon the facts of the case, the plaintiff may prove
the quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an occupation
that is not a realistic alternative occupation is not proof of a future loss.

[Emphasis in original.]

[89]       
Here I am satisfied, on the basis of the evidence of Mr. Sumner, coupled
with the plaintiff’s evidence and that of Ms. Johnston, that there exists a
real and substantial possibility that the plaintiff will be unable to continue
to work at an economically competitive pace as a hair stylist.

[90]       
In the absence of any evidence on which to assess the loss on an
earnings approach, I adopt the loss of capital asset approach taken in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), and award the
plaintiff $15,000 under this heading.

[91]       
Given my views as to the degree of recovery achieved by the plaintiff
prior to the second accident, I attribute both the past and future loss to the
second accident.

Loss of Housekeeping Capacity

[92]       
The totality of the evidence does not lead the conclusion that the
plaintiff will be restricted, in the long term, with basic household
maintenance. The limitations described by both Dr. Irvine and Mr. Sumner are
specific and I do not find they will impair the plaintiff’s ability to perform
routine housekeeping.

[93]       
To the extent there is any future inability to vacuum her home, I have
considered this in the award of general damages and do not find the plaintiff’s
complaints warrant a specific award of damages under this heading.

Special Damages

[94]       
Special damages arising from both accidents have been agreed, assuming I
find the plaintiff to have sustained injuries in each, at $638.69.

Summary of Conclusions

[95]       
 In conclusion, I award the plaintiff the following amounts:

·        
$40,000 in non-pecuniary damages, apportioned $7,500 to the first
accident and $32,500 to the second accident;

·        
$362.72 in past wage loss apportioned to the first accident;

·        
$3,000 for past loss of opportunity, apportioned to the second
accident;

·        
$15,000 for loss of future capacity, apportioned to the second
accident; and

·        
$638.69 in special damages.

Costs

[96]       
The plaintiff is entitled to costs in this action. However, these
actions were both brought under Rule 66 and as the law appears to be unclear on
the assessment of costs when two actions are tried together under Rule 66 and
take over two days, I am willing to hear submissions on costs from counsel. In
addition, any outstanding offers to settle should be brought to my attention at
that time.

“Harvey, J.”