IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100706

Docket: M080457

Registry:
Vancouver

Between:

Jocelyn Co

Plaintiff

And

Dale B. Watson

Defendant

Before:
The Honourable Mr. Justice Burnyeat

Reasons for Judgment

[1]            
On May 21, 2006, at the intersection of Hemlock and Broadway in
Vancouver, Ms. Co who was a passenger in a vehicle being driven by a
friend was injured when the vehicle driven by Mr. Watson went through a
red light and struck the passenger side of the friend’s vehicle.  Liability for
the accident is admitted.  This Trial deals with the injuries suffered by Ms. Co
and the extent to which those injuries continue to cause problems for Ms. Co.

[2]            
After the accident, Ms. Co was treated at the scene and went home
in a taxi.  She went to a Medical Clinic that day and, three days later, went
to see her long-time family physician, Dr. Porten, who described her
injuries on May 24, 2006 as follows:  “Neck pain, Shoulder pain, Rt para
spinal muscle spasm, Tender lt. biceps muscle, Tender rt & lt temporalis
muscles”.  The injuries were said to cause a “80% decrease ROM of her neck and
spine in all directions and significant occipital and temporalis headaches.”  The
following treatment was recommended:  “Rest, NSAID’s, massage, chiropractor, plus
Elavil hs.”

[3]            
I find that Ms. Co was not able to return to her employment until
June 8, 2006, and that she then worked half-time at 20 hours per week
to allow for rest and the therapy treatments that had been recommended by Dr. Porten. 
I find that Ms. Co missed the equivalent of 20 days of work and that
she did not have an arrangement with her employer which would allow her to be
reimbursed for that time off work.  I also find that her net wage loss was
$100.00 per day.

[4]            
Ms. Co also saw Dr. Porten on the following dates:  June 8,
2006, July 17, 2006, and July 2009.  Ms. Co also saw Dr. Porten
in September 2009 to provide her with a progress report so that Dr. Porten
could prepare a medical-legal report.  Dr. Porten gave the following
report regarding the attendance in September 2009:

Her last report was that she had
sore shoulders in the a.m. and needed a cervical pillow.  Her insomnia and
early waking that lasted 1 yr had resolved.  She was able to resume her
sports softball, circuit training and kick boxing by July 2009.

[5]            
In her clinical records, Dr. Porten had the following observations:

(a)   neck and shoulders sore, slight improvement,
recommendation that she could return to work on a 20-hour per week basis
(June 8, 2006);

(b)   low back no better, a.m. stiffness
(July 17, 2006);

(c)    occasional
neck pain, radiates to low back, a.m. stiffness, muscles spasm with
recommendation of a rehab program including Pilates (December 5, 2007).

[6]            
The prognosis as at September 2009 given by Dr. Porten in her
March 30, 2010 opinion was:

I feel that she has reached her
best level of recovery after these 4 yr.  She may have intermittent muscle
spasm in her neck and back.  These should be relieved by rest.  Massage and
NSAID’s if needed.  She should be able to work full-time with adequate
ergonomic work stations and rest periods.  As she currently is able to enjoy
her sports as stated above, I do not foresee future problems with that.

[7]            
Ms. Co was referred to a chiropractor.  At Trial, Dr. Stanley
D. Jung was qualified as an expert to provide an opinion regarding the
assessment, treatment and management of chronic pain with special interest in
motor vehicle accident injuries as a chiropractic specialist in rehabilitation.

[8]            
Dr. Jung examined Ms. Co on July 11, 2007 and April 12,
2010.  In his November 14, 2008 opinion, Dr. Jung stated that he was
of the opinion that Ms. Co suffered the following injuries in the
accident:  (a) soft tissue injuries to the mid back and low back;
(b) facet joint injuries to the mid back and low back; and
(c) sacroiliac joint injury.  Dr. Jung noted increased muscle tone
and tenderness to palpation observed at the trapezius, rhomboids (more on the
left side), piriformis and left lumbar paraspinals in evidence.  He stated that
the presentation of Ms. Co of the pain in her mid and low back suggests
“mechanical pain”, “probably from the posterior elements such as the facet
joints.  The lack of segmental motion relative to the adjacent joints and the
complaint of pain following provocation joint manoeuvres are consistent with
facet joint injury.”  He described the motion in the left sacroiliac joint was
“restricted” and that provocative joint testing to the area resulted in
localized pain.  He also stated:  “The tighter right hamstrings and the tight
left quadriceps that was observed leads to a torsional for or twisting of the
pelvic girdle which likely contributes to Ms. Co’s pain.”

[9]            
Regarding the activities of “daily living”, Ms. Co advised
Dr. Jung that she had no problems with “personal care”, including bathing,
dressing and grooming herself, that she found cleaning the bathroom and other
housework that involves bending down at been “more challenging” since the
accident, that lifting and carrying groceries, etc., has not been affected by
the accident, that since the accident she could not “sleep through the night
anymore”, but that she did not believe that she is being awakened by her pain,
that she had been “more moody” since the accident, that the accident had no
effect on her social activities, that the accident had no adverse affect on her
leisure and recreational activities, that her tolerance for sitting was between
1 and 3 hours, that her tolerance for walking has not been affected, that her
tolerance for bending her head downwards and upwards has not been affected,
that she had no problem crouching and kneeling, that she feels “something” in
her back when climbing stairs in a commercial building, and that she is able to
tolerate working at a desk or a computer station by moving around or shifting or
repositioning herself in her seat.

[10]        
It was the opinion of Dr. Jung that Ms. Co had not recovered
from those injuries by July 11, 2007.  The summary of the findings and
prognosis as at July 11, 2007 is described by Dr. Jung as follows:

Based on my findings in Appendix 2, I summarize
Ms. Co’s current presentation and functional deficits as follows:

•       
The spinal segments at T1, T4 to T9 lacked motion relative to the
adjacent segments.

•       
There was increased muscle tone and tenderness to palpation observed at
the trapezius, rhomboids (both more on the left side), piriformis, and left
lumbar paraspinals.

•       
There was a slight scapular winging on the left side.

•       
The range of motion in the mid back was limited in all directions.

o  
extension was restricted by approximately 94% (the other motions
were restricted by approximately 40% to 56%)

•       
The range of motion in the low back was limited in extension and left
lateral flexion by approximately 36% from the normal values

•       
Upper back strength was weak on the left side by approximately 36%

•       
Grip strength was 24% weaker on her right side from the normal values
and 30% weaker on the left side. There was a 22% difference between
Ms. Co’s right and left grips.

•       
Low back strength (for power) fell below the “normal” standard

•       
Back power testing revealed an overall rating of “poor.”

•       
Provocative joint testing of the lumbar segments resulted in pain at the
L3 to L5 spinal levels

•       
Provocative joint testing of the lumbosacral and sacroiliac joints
resulted in localized pain

•       
Motion in the left sacroiliac joint was restricted

•       
She had tight right hamstrings and tight left quadriceps

•       
She had a hard time controlling her muscles to protract more than 4
times consecutively.

•       
Low Back Disability Questionnaire score: 24% disability

•       
Dartmouth COOP Functional Health Assessment Questionnaire score: 49%.

Because it has been more than two
years since the Accident, a lot of lost time in terms rehabilitation
opportunity has passed and generally, I find that earlier intervention tends to
produce better outcomes.  At this time, I am not prepared to give Ms. Co
an excellent prognosis for a full recovery.  My prognosis for her depends on
how well she responds to the recommended treatments.  Therefore, at this point,
I would place her prognosis as guarded.  I would be pleased to provide you with
a more definitive prognosis after she has tried the recommendations noted above
and then if necessary to reassess her.

[11]        
The following recommendations were made by Dr. Jung for treatment
of the injuries of Ms. Co:

I believe that Ms. Co should:

•       
Consult with a physiotherapist or with preferably a chiropractor for
manipulative treatment to the spine and in particular sacroiliac joint.

•       
Resume treatments with a massage therapist

•       
Consult a physiotherapist or kinesiologist

Ms. Co had significant restriction in movement of her
mid back and lumbosacral areas.  I believe that limited treatments with a
chiropractor to improve vertebral segmental movement (from the fixated facet
joints) should increase the range of motion in the areas noted above.  The
manipulative treatment to the spine would also likely provide some pain
relief.  Furthermore, this treatment should be viewed as a part of the overall
process of facilitating her rehabilitation rather than the cure.

I expect that two to three treatments per week for two to
three weeks and then one to two treatments per week for two to three weeks and
then eventually over the next month or so tapering off to once a month for two
to three months should either yield some favourable result or no result in
which case then other alternatives should be considered.

Hopefully, the treatments should provide some relief, even
albeit temporary relief for Ms. Co.  Again, this temporary relief will
assist in allowing Ms. Co to participate in her exercise activities more
comfortably and efficiently.

I would recommend that Ms. Co resume treatments with her
massage therapist to complement the chiropractic treatments.  My recommendation
would be for the massage treatments to coincide with the chiropractic
treatments, thus with similar frequency.

This course of massage therapy would assist in several ways:

•       
The massage therapy would help in settling the hypertonic muscles down.
The massage therapist will be able to help her stretch passively.  The passive
stretching is intentional and would complement the active stretching
(stretching that Ms. Co does on her own).

•       
In addition, I believe treatment with the massage therapist will help
address the overactive muscles (hamstrings and quadriceps) that in my opinion partially
contribute to her hip/buttock/low back pain.

After the treatments with the chiropractor and massage
therapist, I would then recommend that Ms. Co have several sessions
(anywhere from 5 to 10 sessions) again with a kinesiologist to retrain the
muscle groups in their “new” condition/status, ie. shoulder protraction
muscles.

Should Ms. Co fail to yield
any improvements with the recommendations noted above, I would then suggest
that she consult with a physiatrist or rheumatologist to consider if she would
be a suitable candidate for any injection therapies such as prolotherapy, facet
joint blocks, Botox, or intramuscular stimulation, etc.  I do not know if she
would be an appropriate candidate for these injections so I will defer to my
colleagues in physiatry or rheumatology to make that determination.

[12]        
Dr. Jung was of the belief that the cost of seeing a massage
therapist would be in the range of $40.00 to $50.00 per visit, that a
chiropractor would charge $40.00 to $50.00 per visit, that the cost of seeing a
physiatrist or rheumatologist would be covered under the Medical Services Plan,
but that additional fees for some injections if appropriate (such as
prolotherapy) could be in the range of $1,500.00.

[13]        
In his April 14, 2010 opinion, Dr. Jung stated that
Ms. Co told him on April 12, 2010 that she continued to have sleep
disturbance issues, that she continued with her softball activities during the
summer, that her participation in circuit training and kick boxing was brief
over a one month period as part of a class but that these are not activities
that she continues to participate in on a regular basis, and that she continued
to complain of neck pain.

[14]        
Dr. Jung stated that Ms. Co told him that she had developed
some neck pain that was present initially after the accident, that she was
symptom-free when she saw him on July 11, 2007, but that “her neck pain
has returned” since that time.  He stated that she said she experienced neck
pain on an occasional basis “approximately 60% of the time” and that she rated
the neck pain as a 3 on the 10 scale, “nuisance pain, pain that is noticeable
but does not prevent her from activities”.  She described her neck pain as
being an “ache” that she experiences predominantly in the morning and that she
provides relief by rubbing her neck and attending massage therapy treatments. 
She described her shoulder pain as having worsened, but that her mid back pain
has gotten “a little bit better”.  She rated her constant mid back pain as
1 or 2 on the 10 scale and rated her constant shoulder pain as
5 or 6 on the 10 scale.  She described the pain as “aching and
tight” and that the pain was aggravated by sitting for long periods of time (an
hour to an hour and a half).  She indicated that using a hand-held massage
device as well as massage therapy gave her some relief.  She indicated that her
low back pain “has gotten a little bit better” since her last interview.  She
rated her low back pain as being anywhere from zero to 3 out of 10
since she had seen him last, and the lower back pain was on an infrequent basis
“generally approximately once a month, lasting for a day or two”.  She
described her low back pain as an “annoying ache and tight” if she has been
sitting for long periods such as driving for an hour.  Ms. Co indicated to
Dr. Jung that her personal care, including bathing, dressing and grooming
herself, lifting, social activities, cognitive function, and leisure and
recreation had not been affected, but cleaning the bathroom and other housework
that involved bending down was challenging for her.  She reported continuing
difficulties with her sleep.  She indicated that she has been “moody” since the
accident.

[15]        
Dr. Jung did not share the opinion of Dr. Porten that
Ms. Co would not have “future problems” with respect to sporting
activities.  In his opinion,

Ms. Co is more susceptible
to further injury from traumatic insult and thereby may further injure or
exacerbate her current injury if she is to encounter further traumatic insult
to her neck.  Accordingly, it is my view that Ms. Co may have an adverse
reaction to even a minor insult to her cervical spine.  Therefore, I would
advise against ballistic sporting activities such as kick boxing.

[16]        
Regarding the neck pain, Dr. Jung confirmed that Ms. Co had
indicated that she was no longer experiencing neck pain when he saw her on
July 11, 2007 but that she was again experiencing neck pain.  In this
regard, Dr. Jung stated:

It is not entirely unusual for a
patient’s symptoms to abate and then return at a later time, particularly when
other related soft tissues persist to be symptomatic such as pain in the upper
back and shoulder area.

[17]        
The “prognosis” of Dr. Jung in his April 14, 2010 opinion is
as follows:

I opined in my previous report that my prognosis for
Ms. Co was “guarded.”  It is my opinion now, based on the reassessment of
Ms. Co that she has plateau’d or reached maximal medical improvement.  If
there is to be any further improvement in her condition, it will likely be
minimal.  Although she has apparently been able to cope relatively well despite
her condition, she continues to have difficulties with certain activities such
as cleaning her bathroom.

Ms. Co likely will continue
to experience some degree of pain on an ongoing basis and will probably
continue to have flare-ups of symptoms in her neck, mid and low back as a
result of aggravation by her activities of daily living.

[18]        
The recommendations for treatment of Dr. Jung are set out as
follows in his April 12, 2010 opinion:

Although Ms. Co has experienced some improvement since
the previous assessment, I believe it is still worthwhile for her to consult
with a chiropractor for a limited series of treatments (of 5 to 10 treatments)
to address the facet joint and sacroiliac joint issues.  If the treatments with
the chiropractor are successful, it may decrease Ms. Co’s current reliance
on the massage therapy treatments.  I am hopeful that a short term treatment
program will resolve itself over a period of time but there is of course a real
possibility that it won’t and as well, there is a real possibility that
Ms. Co’s need for massage therapy treatments for pain management, rather
than therapeutic purposes, will be indefinite.

Ultimately, a goal would be to be to limit or completely
eliminate the reliance on massage therapy or any other treatment.  However, for
some patients, this may not be entirely possible so efforts should be made to
taper off the treatments and then monitor the patient’s progress.  If the
patient’s condition worsens with fewer treatments then it may be necessary for
the patient to increase the frequency of visits again.

It has been my clinical experience that there is a direct
relationship between less likelihood of recovery, increase reliance on certain
therapies, and less likelihood of effective treatment options with the passage
of time.

Generally, Ms. Co
demonstrated good strength in her neck, mid back and low back.  Continuing
physical activity would be beneficial for her but it is doubtful that further
strengthening of her neck, mid back or low back would yield any significant
improvement as the testing already has indicated very good strength in those
areas.

[19]        
There are some inconsistencies in the evidence regarding the extent to
which the effect of the injuries suffered by Ms. Co have continued since
the date of the accident.  At her March 25, 2009 Examination for Discovery,
Ms. Co was asked what ongoing complaints she had which she could
contribute to the accident, and she stated:  “Just I mean the same kind of
symptoms, I guess.  My lower back does, you know, get sore from time to time,
and my shoulders.”  She further stated that her shoulders were “tight” for “a
lot of the time”.  She asked whether she had any other ongoing complaints, and
she stated “no”.  Ms. Co was also asked whether she had ever seen a
chiropractor before the car accident and she stated “no”.

[20]        
At Trial, I record Ms. Co as stating that after sitting for long
periods she gets “an irritating feeling in my back” since the accident, that
she went to a massage therapist right after the accident for twenty or so
times, and that “I think it helped”, but she stopped as:  “I didn’t feel there
was a need to go.”  She indicated that she went to an acupuncturist two times
but did not like it, and that she wanted to go to Pilates but could not afford
it, although she thought it would be beneficial to go two or three times a
week.  As her lower back was not bothering her as much, she stopped treatment,
but that the pain has “now moved up”.  She is seeing a massage therapist once a
month and that it helps with her neck and shoulder pain.  She indicated that
she was spending about five minutes in the morning stretching her head from
side to side, and had been doing that since 2009.  She also indicated that she
had a hand-held massager, that sometimes she lies on the floor, and that she
uses the exercise ball at work.  She indicated that she had mid back pain “just
before my period”, and that it was an “annoying pain” that was fine for awhile
and then “then causes sleep problems several times a month”.  She indicated
that she had lower back pain “sometimes in my butt muscle on one side”.  Under
cross-examination, I record Ms. Co as stating that her comment about
having no neck complaints at her Examination for Discovery related to the fact
that she “lumped them together with her shoulder pain”.  When it was noted that
Dr. Jung had recorded no neck complaints, Ms. Co stated:  “I don’t
remember – I can’t recall.”

[21]        
Taking into account the testimony of Ms. Co and what she advised
Dr. Porten and Dr. Jung, I make the following findings of fact
regarding injuries suffered by Ms. Co as a result of the accident and the
duration of her suffering relating to the same:  (a) shoulder pain ever
since the accident although “intermittent” by September 2009; (b) back
pain since the accident:  “intermittent” by September 2009 and “better” by
April 2010; (c) neck pain since the accident:  “occasional” by late 2007,
returning and recurring by April 2010; and (d) sleep problems starting in
2007 and continuing throughout.

[22]        
Regarding her recreational and athletic facilities, I find that there was
no adverse affect on them after the summer of 2007.  By the summer of 2007, I
find some impairment of her ability to undertake housework, as I find that
bending down was found by Ms. Co to be “more challenging”.

GENERAL DAMAGES OF MS. CO

[23]        
In support of the submission that the general damages of Ms. Co
should be assessed at $50,000, counsel for Ms. Co relies on the following
decisions:

(a) Romanchych v.
Vallianatos, [2009] B.C.J. No. 996 (S.C.), where a 24‑year-old
suffered injuries to her neck and shoulder, with associated headaches and jaw
pain.  The pain level was managed by limiting her activities, with a
description that, “on a good day”, the plaintiff only had pain at 2‑3 on
the pain scale of 10.  It was the finding that the injuries of the plaintiff
were “chronic” and that they will “continue to affect her permanently.  Given
that she must limit her activities to minimize and manage her pain”. 
($45,000.00);

(b) Anderson v. Merritt
(City), [2006] B.C.J. No. 1351 (S.C.), where there was a finding of chronic
pain that became worse as the day progressed and had a “severe, adverse impact”
on the leisure activities of the Plaintiff.  ($60,000.00);

(c) Jackman v. All
Season Labour Supplies Ltd., [2006] B.C.J. No. 3559 (S.C.), where
there was a diagnosis of chronic mechanical back pain, with a “guarded”
long-term prognosis for the pain.  The pain was “not severe enough to restrict
her employment potential”, with the finding that the injury restricted most
aspects of the life of the plaintiff for about a year (disabling for the first
five months of that period), with residual symptoms remaining more than three
years after the accident, and which were expected to continue for at least a
few more months.  ($40,000.00);

(d) Jones v. Davenport,
[2008] B.C.J. No. 131 (S.C.), where the major complaint was pain in the
right side of the neck and shoulder blade area, and headaches which made it
difficult for the plaintiff to focus and made her tired and miserable (“almost
depressed”): pain that “never really went away with the finding that “there is
a real and substantial possibility that the plaintiff will continue to
experience symptoms from her injuries indefinitely”.  ($45,000.00).

(e) Mayenburg v. Lu,
[2009] B.C.J. No. 1915 (S.C.), where the plaintiff had initial complaints
of cervical spine and trapezius muscles being tender, full range of motion, but
noticeably painful in all directions ($50,000.00).

(f) Cipriano v.
Cipriano (1996), 22 B.C.L.R. (3d) 148 (C.A.), where Donald J.A.
on behalf of the Court stated:

The awards in other chronic pain
cases, including those involving fibromyalgia, cover a broad range.  Without
attempting to set any limits either way, I observe that the awards run from
$30,000.00 at the low end to $135,000.00 for the most severe of cases.  Many
factors account for the variance: not only the severity of the symptoms and
their effect on the life of the claimant, but also the pre-existing condition
of the claimant and contributing life problems.  (at para. 25)

[24]        
In support of the submission that the general damages of Ms. Co
should be in the neighbourhood of $8,000.00 to $10,000.00, counsel for
Mr. Watson relies on the following decisions:

(a) Al-Mundlawi v. Gara,
[2005] B.C.J. No. 1117 (S.C.), where there was a September 9, 2002
accident, substantial recovery by April 2003, the diagnosis that the
plaintiff had sustained a sprain of the cervical and lumbosacral spine, and low
back pain that had resolved within a year.  ($7,500.00);

(b) Booth v. Hedderick,
[2004] B.C.J. No. 170 (S.C.) where there were soft tissue injuries to the
neck as well as injury to the temporomandibular joints with the relatively mild
neck strain largely resolved within six months.  ($7,500.00);

(c) Gradek v.
DaimlerChrysler Financial Services Canada Inc., [2009] B.C.J. No. 2432 (S.C.),
where there were soft tissue injuries to the neck and lower back which resulted
in missing four weeks of work, with no evidence of long-term effects. 
($8,000.00); and

(d) Kanani v. Misiurna,
[2008] B.C.J. No. 905 (S.C.), where there was whiplash, left shoulder and
back muscle strain, nine months of pain causing restrictions, a further six
months of gradual improvement with ongoing fairly minor symptoms of decreasing
frequency, and a finding that the pain and discomfort interfered significantly
with the plaintiff’s enjoyment of life for between 8-10 months, although not to
the extent that she had to be absent from work.  ($15,000.00).

[25]        
It is clear that the decisions relied upon by Ms. Co all deal with
injuries that have become chronic and were found to have a continuing effect on
the various plaintiffs.  I cannot reach that conclusion nor can I reach the
conclusion that there has been a severe and adverse affect on the leisure
activities of Ms. Co.  The decisions provided on behalf of Mr. Watson
represent soft tissue injuries which cannot be described as “chronic”, which I
take to mean lasting beyond the period of time that most people would
experience full or almost full recovery, being in the range of six to eighteen
months.

[26]        
Ms. Co did not regularly attend to be treated by Dr. Porten. 
The credibility of Ms. Co was put in questions by Mr. Watson as a
result.  In this regard, I adopt the following statement made in Mayenburg,
supra, where Myers J. stated:

The defendants challenge the credibility of Ms. Mayenburg.
They point to the limited number of times she visited physicians to complain
about her pain. They also refer to the fact that she did not raise the issue of
her injuries when she visited Dr. Ducholke on several occasions for other
unrelated matters.

I do not accept those submissions, which have been made and
rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis
v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with
her life, rather than seeing physicians in an attempt to build a record for
this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a
doctor for something unrelated to an accident can be faulted for not
complaining about the accident-related injuries at the same time. Dr. Ducholke
testified how her time with patients was limited.

In summary, Ms. Mayenburg’s complaints to her doctors
were not so minimal as to cast doubt on her credibility.

(at paras. 36-38).

[27]        
Taking into account the injuries suffered by Ms. Co as a result of
the accident and the duration of the suffering relating to those injuries, I
assess the general damages of Ms. Co at $27,500.00.

DAMAGES FOR LOSS OF CAPACITY

[28]        
In the oft quoted decision in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (S.C.), Finch J., as he then was, set out the following
principles dealing with loss of capacity:

(a)     whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

(b)     whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

(c)     whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

(d)     whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
market.

[29]        
In Romanchych v. Vallianatos, (2010), 1 B.C.L.R. (5^th)
241 (C.A.), Tysoe J.A. on behalf of the Court observed that the “…
quantification of the loss of future earning capacity is more at large when the
injured plaintiff is a young person who has not yet established a career.  This
is in contrast to the situation … where the plaintiff was near the end of his
working career and had no intention of returning to the trade which he was
unable to perform due to his injuries.”  (at para. 15).

[30]        
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. on behalf of
the Court stated:

A plaintiff must always prove, as
was noted by Donald J.A. in Steward [Steward v. Berezan (2007) 64
B.C.L.R. (4th) 152 (C.A.)],  by Bauman J. in Chang, [Chang v.
Feng, 2008 BCSC 49] 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 [Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], 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 [Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.)] 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 [Parypa v. Wickware (1999) 169 D.L.R. (4^th)
661 (B.C.C.A.)].  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.  (at para. 32)

[31]        
At Trial, I record Ms. Co as stating that she had thought about
increasing her skills as there was not much room for advancement at her present
employer.  She described her employment as being “just a job”.  Regarding what
the future might bring, Ms. Co stated:  “Just what I want to do I’m not
sure.”

[32]        
I am satisfied that Ms. Co has shown on a balance of probabilities
that there is a real and substantial possibility for diminished earning
capacity.  While she has been able to return to her pre-accident employment
without loss of average yearly income, it is only through an accommodating
employer and work environment that she has yet to suffer a loss.  I am
satisfied that she should be compensated for loss of her capital asset. 
Ms. Co has lost the ability to take advantage of all job opportunities
that might be open to her in the future, she is less marketable as an employee
to potential employers as they will have to accommodate her physical needs and
she is less valuable as a person capable of earning income in a competitive job
market.

[33]        
The amount claimed on behalf of Ms. Co is $75,000.00, being two
years of gross income.  On behalf of Mr. Watson, I am urged to make no
award.  I assess the loss of capacity at $35,000.00.  Ms. Co is presently
31.  I cannot come to the conclusion that her long-time career has been
established.  I find that there is a substantial possibility of a future loss
of income arising out of a loss of earning capacity.

LOSS OF HOUSEKEEPING CAPACITY

[34]        
The evidence is that Ms. Co employs a housekeeper who comes in once
a month for two hours at $15.00 per hour.  The sum of $3,000.00 is claimed on
behalf of Ms. Co for loss of housekeeping capacity.  Ms. Co relies on
the decision in Jones v. Davenport, 2008 BCSC 18, where the plaintiff
had continued to perform the vast majority of housekeeping services in her
home, although there were a few of the heavier tasks that she could not do or
which were difficult for her to do.  Those tasks are handled by either a friend
or the common law husband of the plaintiff.  After reviewing the decisions in Kroeker
v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.) and McTavish v.
MacGillivray (2000), 74 B.C.L.R. (3d) 281 (C.A.), Halfyard J.
concluded that a plaintiff:  “… must establish a real and substantial
possibility that she will continue in the future to be unable to perform all of
her usual and necessary household work.  It would also need to be shown that
the work that she will not be able to do will require her to pay someone else
to do, or will require others to do it for her gratuitously.” (at
para. 92).

[35]        
In Mayenburg v. Lu, 2009 BCSC 1308, Myers J. ordered
$2,500.00 after finding that there was a substantial possibility that the
plaintiff would not be able to do some items required in housekeeping, even
though her physical ability to do more extensive housework remained untested at
the date of the Trial.

[36]        
The evidence supports a diminished capacity to perform housekeeping
functions but the only evidence relates to work which involves bending.  The
evidence indicates that the housekeeper provides services beyond that which
cannot be undertaken by Ms. Co.  While Ms. Co suffers discomfort, I
am satisfied that this discomfort is properly compensated by the award of
non-pecuniary damages.  In the circumstances, I make no award for damages for
loss of housekeeping capacity.

COST OF FUTURE CARE

[37]        
$7,500.00 is requested on behalf of Ms. Co:  $5,800.00 representing
two years of Pilates; $1,500.00 for prolotherapy; and $200.00 for a lifetime
supply of Advil.  Those amounts are put in issue by Mr. Watson as much of
what is requested was originally recommended by Dr. Porten or by
Dr. Jung, none of it has occurred to date, so that there is no substantial
possibility that the amounts will be required in the future.  What is requested
is far in excess of what I can find to be reasonably likely.  Many of the
recommendations made by Dr. Jung and Dr. Porten were made years ago. 
For various reasons, Ms. Co did not undertake what was recommended.  I
cannot find that there is a substantial or any possibility that what is
recommended will be undertaken in the future.  Accordingly, I make no
assessment for the cost of future care.

PAST INCOME LOSS AND SPECIAL EXPENSES

[38]        
The evidence indicates the following total earnings of Ms. Co: 
$23,202 (2003); $24,238 (2004); $27,922 (2005); $27,260 (2006); $30,309 (2007);
and $35,553 (2008).  I assess the wage loss of Ms. Co at $2,000.00
representing the equivalent of 20 days lost work at $100.00 per day net
income.  The special damages for the cost of massage therapy, Pilates, etc.
incurred to date have been agreed at $500.00.

COSTS

[39]        
As I am advised that the provisions of Rule 37B of the Rules of
Court apply, the parties will be at liberty to speak to the question of
costs in due course.

SUMMARY

[40]        
The following is ordered:

(a)   General damages:                           $ 27,500.00

(b)   Loss of capacity:                              $ 35,000.00

(c)    Past wage loss:                               $  
2,000.00

(d)   Special damages: $     500.00

TOTAL: $ 65,000.00

________ “Burnyeat
J.”__________________
The Honourable Mr. Justice Burnyeat