IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20100713

Docket: M075372

Registry:
Vancouver

Between:

Stella Kasidoulis

Plaintiff

And

Frank Russo

Defendant

Before:
The Honourable Mr. Justice Sewell

Reasons for Judgment

[1]            
The plaintiff Stella Kasidoulis sues to recover damages for injuries she
suffered in a motor vehicle accident on December 15, 2005.  The defendant Frank
Russo admits that he is solely responsible for the accident.

[2]            
The accident occurred between 7:00 and 8:00 a.m. when Mr. Russo made a
left hand turn in an intersection immediately in front of a Honda Civic sedan
driven by Ms. Kasidoulis’ husband.  Ms. Kasidoulis was seated in the front
passenger seat.  Mr. Kasidoulis was unable to stop in time and his car collided
with Mr. Russo’s.  The accident caused significant damage, in excess of
$10,000, to the Honda Civic.

[3]            
Ms. Kasidoulis is 38 years old and is married with three children.  She
is employed by the Coquitlam School District as a teacher on-call.

[4]            
At the time of the accident she and her husband and their eldest child Apostoli
were living with her parents in Richmond.  Mr. and Ms. Kasidoulis had purchased
a home in Burnaby on which they planned to carry out a very extensive
renovation, which for all practical purposes amounted to building a new house. 

They were living with Ms. Kasidoulis’ parents to save money.  Ms. Kasidoulis was
in the second trimester of her pregnancy with her second child.  Fortunately
the accident did not cause any injury to the foetus.  In April 2006 Ms.
Kasidoulis delivered a healthy son, Stelios.

[5]            
Prior to the accident Ms. Kasidoulis was in good health.  The evidence
before me is that Ms. Kasidoulis was a well-adjusted and outgoing individual. 
She enjoyed socializing with friends.  She and her husband enjoyed dancing. 
Ms. Kasidoulis taught Sunday school and as indicated above worked as an on-call
teacher.

[6]            
The Kasidoulises received considerable family support from their parents. 
In particular, Ms. Kasidoulis’ mother and mother-in-law provided childcare
while Ms. Kasidoulis was teaching.

[7]            
The Kasidoulises had taken on a significant financial challenge in
building a new house.  On the evidence before me I am satisfied that Ms. Kasidoulis
intended to pursue her teaching career at all times up to the accident.  At the
time of the accident Ms. Kasidoulis was averaging between 3 to 4 days per week
as a substitute teacher.

[8]            
After the accident Ms. Kasidoulis was taken to St. Paul’s Hospital where
she was treated for soft-tissue injuries.  She was also examined at the
prenatal unit of that Hospital to diagnose whether any trauma had been caused
to her foetus.  After being discharged from the Hospital Ms. Kasidoulis
reported that she suffered from significant symptoms, which principally
consisted of pain in her neck and shoulders and mid and lower back.  Initially,
this pain was quite disabling and made it impossible for her to work, do any of
her household tasks, or care for her child.  However, as indicated above her
mother was available to assist with childcare.

[9]            
On December 19, 2005, Ms. Kasidoulis saw her family physician Dr.
Kneifel.  Dr. Kneifel diagnosed post-motor vehicle accident soft-tissue
injuries and recommended that Ms. Kasidoulis pursue a conservative course of
treatment of rest and non-prescription analgesics, in particular Tylenol P.M.,
to control her pain.  She recommended that Ms. Kasidoulis stay away from work
and indicated that she would benefit from a course of physiotherapy.

[10]        
On December 28, 2005, Dr. Kneifel did a physical examination of Ms. Kasidoulis
and observed upper thoracic spine tenderness, left and right inter-scapular
tenderness and spasm, pain in the neck in all directions of rotation and pain
in the mid back.  At that time Ms. Kasidoulis reported severe pain and soreness
in her back, which was worse by the end of the day.  She was experiencing
difficulty in sleeping and at that time needed help to get in and out of bed
and was barely able to lift her 16 month old son.

[11]        
On January 24, 2006, Ms. Kasidoulis reported that she continued to
suffer severe back pain in her upper and lower back and that she had begun to
experience severe headaches two to three times a week.  She was also very
anxious when driving in a car.

[12]        
Over time the severity and frequency of Ms. Kasidoulis’ headaches
declined significantly.  However, there has been no significant improvement in
her back pain.  In particular she continues to report that standing or sitting
in the same place over a prolonged period causes her extreme discomfort and
that she is unable to work consistently as a teacher.  Ms. Kasidoulis testified
that at the end of a teaching day she is exhausted and is in considerable pain
and discomfort and is unable to carry out any of her household duties and
tasks.  In addition, she reports difficulty in managing household tasks which
require bending, lifting and stretching.

[13]        
Ms. Kasidoulis consulted Dr. Kneifel on a regular basis from December 19,
2005 to shortly before trial.  With the exception of the improvement in Ms.
Kasidoulis’ headaches Dr. Kneifel has noted no significant improvement in Ms.
Kasidoulis’ symptoms.  At times there seemed to be some temporary improvement but
overall Ms. Kasidoulis’ mid and low back pain continued.

[14]        
In early 2008 Ms. Kasidoulis became pregnant with her third child, her
daughter Irini.  The pregnancy seems to have aggravated Ms. Kasidoulis’ condition
and symptoms somewhat.  However after the pregnancy ended with a normal,
healthy birth in September 2008 there was no significant improvement in Ms.
Kasidoulis’ condition.

[15]        
In September 2006 Dr. Kneifel referred Ms. Kasidoulis to Dr. Condon, an
anaesthetist and pain management physician at the Echelon Clinic.  Dr. Condon
saw Ms. Kasidoulis first on September 21, 2006.  At that time his diagnosis was
that Ms. Kasidoulis was suffering from a spinal ligament injury at the T3 to T8
vertebrae and the L4 to 5 vertebrae.  He advised her to rest and engage in what
is called codiment exercise, that is, standing in a stationary position with
weights in each hand.

[16]        
Dr. Condon treated Ms. Kasidoulis from September 21, 2006 until February
26, 2009.  During that time he noted no significant improvement in Ms. Kasidoulis’
symptoms.  In 2009 Dr. Condon concluded that there was nothing further he could
do to assist Ms. Kasidoulis and she has not seen him since that time.

[17]        
The plaintiff has filed two independent medical/legal reports from Dr.
Andrew Travlos, a specialist in physical medicine and rehabilitation.  In his
first report, dated September 27, 2006, Dr. Travlos also noted the symptoms
reported by Ms. Kasidoulis.  He examined her the same day as his report.  At that
time Ms. Kasidoulis reported pain, mostly localized to her spine.  The focus of
her pain at that time was around her upper back and less so in the lower back. 
She also had some discomfort of the muscles in the upper back, especially the
rhomboid muscles, but overall did not have significant muscular pain.

[18]        
In September 2006 Ms. Kasidoulis was also complaining of pain localized
to the lumbosacral junction mostly on the left side.  This was accompanied with
discomfort and pain situated around the left sacroiliac joint.  With respect to
headaches, Dr. Travlos was of the view that these were stress headaches which
could not directly be attributed to the accident.  However, he was of the
opinion the complex of problems which Ms. Kasidoulis had faced since the
accident indirectly caused her headache pains because of an underlying
susceptibility to such pain.  In his September 27, 2006 report, Dr. Travlos
said the following:

It is my opinion that the
symptoms affecting Ms. Kasidoulis’ upper and lower back, as well as her sleep
and headache pains, are either directly or indirectly related to the accident
and would not have been an ongoing concern or a problem for her in the absence
of the accident. Obviously, the birth of her child has also affected her sleep,
and this is clearly playing a role in her sleep difficulties.

[19]        
Dr. Travlos was of the view that Ms. Kasidoulis needed to become more
active and to attempt to gain control over what he regarded as the somewhat
chaotic state of her life at that time.  He was also of the opinion that if Ms.
Kasidoulis took appropriate steps to address her underlying state of physical
fitness and to increase her activity levels she would have been able to return
to regular work by April of 2007.

[20]        
Dr. Travlos examined Ms. Kasidoulis and prepared a further report on
March 24, 2010.  By the date of that report he was much less optimistic about
her prospects for recovery.  While some of the symptoms that Ms. Kasidoulis was
experiencing in 2006 had resolved, she continued to suffer from on-going pain
in her mid to lower back with some upper body symptoms and occasional
headaches.  By March 2010 she remained with significant on-going limitations
which continued to interfere with her daily activities at home, work and
recreationally.

[21]        
Dr. Travlos was of the opinion that the complaints reported by Ms.
Kasidoulis to Dr. Kneifel, which included headaches, chest pains, neck pains;
back pains and emotional difficulties were a direct result of the accident.  He
was unable to identify any clinical or objective findings with respect to the
back pain but was clearly of the view that Ms. Kasidoulis was genuinely
experiencing the pain that she reported.  There does not seem to be any serious
dispute between the parties that Ms. Kasidoulis’ pain is genuine and I accept
that this is the case.

[22]        
In his second report Dr. Travlos concluded that Ms. Kasidoulis suffers
from chronic pain disorder.  That pain was affecting her daily activities, both
social and work related.  He was of the view that Ms. Kasidoulis would benefit
from a long-term “longitudinal” course of treatment designed to permit her to
manage and cope with her pain.  On the other hand, Dr. Travlos was clearly of
the view that there should be no expectation that the pain would resolve and
that it was no more probable than not that she will continue to have permanent on-going
pain.

[23]        
In both his reports, and in particular in his March 2010 report, Dr.
Travlos focused considerable attention on the necessity of Ms. Kasidoulis
undergoing treatment and having access to the resources necessary to reduce the
stressors in her life.  As I read Dr. Travlos’ opinion, he was of the view that
if Ms. Kasidoulis is given the opportunity to access a reasonable long-term
treatment plan and the resources to relieve her household responsibilities, she
could expect significant improvement in her ability to function and in her
ability to cope with her pain.

[24]        
Dr. Travlos was of the view that it was unrealistic to expect that Ms.
Kasidoulis would ever be able to work full-time, but that it was reasonable to
anticipate that she could work between three and four days a week if the
therapies that he recommended were pursued and were effective.

[25]        
Three teachers who had worked with or observed Ms. Kasidoulis prior to
the accident gave evidence on her behalf.  Ms. Margaret Dickin, a teacher with
over 30 years experience, testified that she was extremely satisfied with Ms. Kasidoulis’
work performance and that she made it a point of requesting her to be her substitute
teacher when she was away from work.  Ms. Dickin testified that Ms. Kasidoulis
demonstrated the skills necessary for a successful teaching career.  In
particular she had the opportunity to observe Ms. Kasidoulis because she taught
kindergarten in tandem with another class which gave her the opportunity to
observe Ms. Kasidoulis when she was substituting for the other kindergarten
teacher.

[26]        
Ms. Kathleen Langstroth was the teacher who taught in the kindergarten
next to Ms. Dickin’s class.  She has been a teacher for 32 year, the last 14 of
which she has spent at Bramblewood Elementary teaching primary ESL.  She also
gave an enthusiastic endorsement of Ms. Kasidoulis’ abilities and potential as
a teacher.  Ms. Langstroth testified that she considered Ms. Kasidoulis to be
outstanding as a substitute teacher that Ms. Kasidoulis demonstrated good
classroom management and that she had a good way with children.

[27]        
Mr. Demos Papantoniou, a teacher at another school, also gave evidence
that he would ask for Ms. Kasidoulis as his substitute teacher if she was
available.  He also testified that Ms. Kasidoulis had an excellent reputation
with his colleagues at the school and that Ms. Kasidoulis was quite prepared to
seek advice and direction from more experienced teachers.

[28]        
All of the teachers who testified, including Ms. Dickin, commented on
Ms. Kasidoulis’ energy, organization and ability to control her classes.  All
of them testified that Ms. Kasidoulis was their first choice for a substitute. 
In Coquitlam teachers are allowed to request a specific substitute.  This provided
Ms. Kasidoulis with employment opportunities over and above those provided
simply by being on the Coquitlam School District teacher on-call rota.

[29]        
Counsel for the defendant did not cross-examine the teachers with
respect to their observations and opinions about Ms. Kasidoulis’ performance
and abilities as a substitute teacher.  Based on their evidence I have no doubt
that Ms. Kasidoulis was extremely well-qualified and motivated to pursue a
successful career in education.

[30]        
There was some evidence before me that opportunities for pursuing a
career in education are somewhat less than what they have been in the past due
to declining enrolment and school closures.  Counsel for the defendant also
pointed out that the mandatory retirement age of 65 has been eliminated for
teachers.  Presumably some teachers will elect to work beyond age 65.  However,
there is also no doubt there will continue to be opportunities for teachers to
pursue their careers.  I have some difficulty in understanding why the damages
which the plaintiff has suffered as a result of her injuries should be reduced
as a result of these considerations brought forward by counsel for the
defendant.  Indeed it seems to me that the erosion in the plaintiff’s
competitive position resulting from the accident may cause her more significant
loss in a competitive employment environment than in one which there were more
employment opportunities available.  In addition the evidence is that, with the
exception of the September 2009 – June 2010 school term, annually at least 20% of
registered teachers on call obtained continuing contracts.

[31]        
Several witnesses confirmed that prior to the accident Ms. Kasidoulis
was an active, out-going, cheerful and effective person.  These same witnesses
contrasted her physical and emotional outlook on life before and after the
accident.  They all testified that she had become more withdrawn, less social
and much less outgoing than before the accident.  The witnesses made particular
reference to Ms. Kasidoulis’ significantly reduced social life in attending
functions within the Greek community, and in entertaining in her own home and
visiting her friends’ homes.  Simply put, their evidence was that Ms.
Kasidoulis is demonstrating a significantly reduced level of activity and
enjoyment of life after the accident than she had prior to the accident.

[32]        
Ms. Dianna Robertson, a qualified occupational therapist, provided
occupational therapy treatments to Ms. Kasidoulis commencing in January of
2008.  An issue arose at trial with respect to certain of Ms. Robertson’s
accounts.  Counsel for the plaintiff sought and was granted leave to an amend
the statement of claim to claim these accounts as special damages relating to
the provision of occupational therapy treatments.  Counsel for the defendant
opposed the amendment on the grounds that the amounts claimed were more
properly disbursements incurred by counsel in the course of preparation for
trial, that the amounts had not been properly claimed as special damages and in
particular that the amounts claimed had not been particularized as required by
the Rules of Court.  I allowed the amendments but made it clear that I
had not made any decision with respect to whether these accounts were recoverable. 
I will return to this issue when I deal with the various heads of damages
claimed by Ms. Kasidoulis.

[33]        
Ms. Robertson performed a functional capacity evaluation on Ms.
Kasidoulis on March 3, 2010.  In Ms. Robertson’s opinion Ms. Kasidoulis
demonstrated the ability to tolerate work activities at the light to moderate work
level.  These categories include all of the duties of being a teacher.  However,
Ms. Kasidoulis did experience pain and discomfort while carrying out some of
these tasks.  In Ms. Robertson’s opinion the pain symptoms which Ms. Kasidoulis
experiences will not prevent her from working.  However, Ms. Robertson was also
of the opinion that Ms. Kasidoulis is currently employable only on a part-time
basis.  Ms. Robertson expressed considerable concern and doubt about Ms.
Kasidoulis’ ability to work on a day-to-day basis.  She expressed agreement
with Dr. Travlos’ opinion that it is unlikely that Ms. Kasidoulis will be able
to return to work on a regular full-time basis even with household assistance.

[34]        
Ms. Robertson also prepared a report outlining her estimate of the cost
of future care requirements for Ms. Kasidoulis.  I will return to this report
and deal with it in more detail when I assess damages.  Ms. Robertson however
is clearly of the opinion that household assistance of between 10 and 12 hours
per week will be required if Ms. Kasidoulis is employed as a teacher outside
the home.

[35]        
Ms. Robertson also agreed with Dr. Travlos’ opinion that Ms. Kasidoulis
should enrol in a fitness and conditioning program and was of the view, shared
by Dr. Condon that psychological counselling would benefit Ms. Kasidoulis.

[36]        
As is not uncommon in cases of this sort, the critical issue in this
case is the extent to which the injuries Ms. Kasidoulis suffered in the
accident are the cause of the difficulties described in the evidence.  Counsel
for the defendant did not seriously question or cross-examine Ms. Kasidoulis
with respect to her reported symptoms.  Similarly, he did not appear seriously
to challenge the impact that those symptoms were having on Ms. Kasidoulis’ life
and her ability to cope with the demands of her life.  Counsel however did
point out that Ms. Kasidoulis is subject to stress not caused by the accident. 
In particular he pointed out the considerable stress being put on Ms. Kasidoulis
as a result of her family’s financial predicament and as a result of having
primary care responsibilities for three young children.  Mr. Robinson submits
that these factors, coupled with the absence of objective evidence of injury,
should lead to the conclusion that Ms. Kasidoulis would probably have suffered
the lost income she claims whether or not she was involved in the motor vehicle
accident.  I also understand him to submit that her symptoms have been
aggravated by the stress of her life and that the defendant should not be held
responsible for any consequence of such stresses.

[37]        
This case therefore requires consideration of the law as laid by the
Supreme Court of Canada and our Court of Appeal with respect to causation.  The
law with respect to causation has been recently addressed and reviewed in Athey
v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v.  Hanke,
2007 SCC 7 and Hutchings v. Dow, 2007 BCCA 148.

[38]        
These cases establish the proposition that to impose liability on the
defendant  I must be satisfied that Ms. Kasidoulis would not have suffered her symptoms
but for the accident or, in other words, that the injuries she suffered in the
accident were a necessary cause of her post accident symptoms.

[39]        
I find that Ms. Kasidoulis suffers from debilitating mid and low-back
pain.  This pain and attendant low energy have had a significant impact on her
life.  I find that the symptoms being experienced by Ms. Kasidoulis are an
indivisible injury which would not have occurred but for the injuries she
suffered in the motor vehicle accident.

[40]        
I base this conclusion on a comparison of Ms. Kasidoulis’ energy and
capabilities before and after the accident.  I accept her evidence that she is
suffering debilitating back pain.  I also rely on Dr. Travlos’ conclusion that
Ms. Kasidoulis is suffering from chronic pain syndrome.  I can see nothing in
the evidence which supports the assertion that Ms. Kasidoulis would be
experiencing the pain or the level of disability she currently experiences had
she not been injured in the motor vehicle accident.  I therefore conclude that
the defendant is fully responsible for the consequences of Ms. Kasidoulis’
present condition.

[41]        
I make this finding notwithstanding the lack of objective clinical
evidence of serious injury.  I note that neither Ms. Kasidoulis nor Dr. Travlos
were cross- examined with respect to the genuineness of Ms. Kasidoulis’
reported symptoms.  In his cross-examination of Dr. Travlos, Mr. Robinson did
establish that there was a paucity of objective evidence of injury present.  I
note, however, that there is no indication that Ms. Kasidoulis was in any way feigning
the symptoms she is experiencing.  Given this fact and the fact that there was
ample evidence before me contrasting Ms. Kasidoulis’ personality and abilities
before the accident from those she presently possesses and demonstrates, I have
no hesitation in concluding that the difficulties that she now faces would not
have been experienced but the wrongful conduct of the defendant.

NON-PECUNIARY DAMAGES

[42]        
In this case, Ms. Kasidoulis has suffered a significant degradation of
her quality of life.  However the evidence also establishes that she has not
been as pro-active as she might have been in taking steps to better equip
herself to deal with her post-accident state.  I appreciate that her failure to
pursue physical fitness and rehabilitation programs can in part be explained by
her accident-induced low energy levels.  I also note that Ms. Kasidoulis
experienced heightened pain and fatigue when she tried exercise.  I do not
think that any reduction of damages for failure to mitigate is warranted.  No
treating doctor told Ms. Kasidoulis to continue to exercise in the face of her
increased pain.  It was only when the independent medical assessments were
prepared that a comprehensive rehabilitation program was recommended.

[43]        
In assessing damages in this case I therefore intend to proceed on the
basis that there are a number of ameliorating measures open to Ms. Kasidoulis
if she is provided with resources to pursue them.  In my view, there is a
reasonable and substantial possibility that if Ms. Kasidoulis pursues the ameliorating
measures recommended by Dr. Travlos and Ms. Robertson, her symptoms and her
ability to cope and function will improve somewhat.  I am also of the view that
as Ms. Kasidoulis’ children become less dependent on her and enter school, some
of the pressures she faces will lessen and her symptoms may well improve.

[44]        
Notwithstanding the comments in the previous paragraph I remain of the
view that Ms. Kasidoulis is entitled to a substantial award for non-pecuniary
damages.  I was referred to a number of cases dealing with non pecuniary
damages in situations of chronic pain without objective signs of injury.  In Poirier
v. Aubrey, 2010 BCCA 266 the court increased an award to $100,000.00.  In
this case, taking all of the circumstances into account I award non-pecuniary
damages in the amount of $90,000.00.

LOSS OF PAST INCOME

[45]        
The purpose of an award for loss of past income is to compensate the
plaintiff for the loss of her past earning capacity.  However in quantifying
the damages the actual circumstances of the injured person must be taken into
account.  In this case, there are significant complications involved in
assessing the proper amount to award for past income loss.  The first
complication arises from the fact that Ms. Kasidoulis was at the time of the accident
employed as a teacher on call in the Coquitlam School District No. 43.  As
such, she had no guaranteed income.

[46]        
The second complication arises from the fact that Ms. Kasidoulis was
pregnant at the time of the motor vehicle accident and between that date and
the date of trial has had an additional child.  I am satisfied on the evidence
before me that Ms. Kasidoulis would have taken one year maternity leaves in
respect of both children whether or not she had been injured in the motor
vehicle accident.

[47]        
The third complicating factor is that Ms. Kasidoulis’ career goal was to
obtain a continuing contract as a classroom teacher with the Coquitlam School
District .  I therefore need to consider whether Ms. Kasidoulis would have
achieved that goal prior to the date of trial.  In this regard, the evidence
before me was that the most common way for a teacher to obtain a continuing contract
is to accumulate a total of 10 months of temporary contracts over three
consecutive school years.  This is not the only way in which a teacher can
obtain a continuing contract, but it is the most common way of so doing.

[48]        
In the circumstances of this case, I cannot find that Ms. Kasidoulis
would have obtained a continuing contract by the date of trial.  On a balance
of probabilities I find that her two maternity leave absences would have
prevented from accumulating sufficient temporary contracts to have obtained a
continuing contract by September 2009.

[49]        
However I do think that it is likely that Ms. Kasidoulis would have been
able to work for a considerable number of days during that period had she not
been injured in the motor vehicle accident.  I base this conclusion on the fact
that Ms. Kasidoulis was very well regarded by the teachers for whom she
substituted and on the fact that Ms. Kasidoulis would have had a significant
financial incentive to work as many hours as possible.  I also find support for
this conclusion in the evidence of Ms. Sandra Dyrndahl from the Coquitlam
School District, who indicated that a popular teacher could reasonably expect
to work four days per week as a teacher on call.  On all of the evidence before
me, I therefore concluded that had Ms. Kasidoulis not been injured she would
have worked on average four days per week during the school terms between
December 15, 2005 and the accident with the exception of two 1-year maternity
leaves.

[50]        
Based on the same evidence and considerations, I also conclude that Ms. Kasidoulis
would have accumulated sufficient hours to qualify for one year of EI maternity
leave benefits with respect to her two pregnancies.  The maternity leave
benefits to which Ms. Kasidoulis would have been entitled were $14,500 for each
pregnancy.  For the period December 15, 2005 to April 3, 2006 Ms. Kasidoulis’
pay rate as a teacher on call was approximately $180.00 per day.  Commencing on
October 1, 2007 to June 30, 2008 her rate of pay was $199.60 per day.  Taking
all of these considerations into account, and making some provision for adverse
contingencies, I assess damages for past income loss at $80,000.00.

[51]        
For the purposes of determining appropriate adjustment for income tax, I
allocate these damages annually as follows:

2005   $    500

2006   $10,000

2007   $20,000

2008   $17,500

2009   $17,500

2010   $14,500

LOSS OF FUTURE INCOME

[52]        
Ms. Kasidoulis career goal was to become a full-time teacher in the
Coquitlam School District.  I have no hesitation in finding that but for the
accident she would have achieved that goal.  I am also satisfied that as a
result of the injuries suffered in the motor vehicle accident it is unlikely
that Ms. Kasidoulis will be able to obtain a permanent teaching position.

[53]        
I also conclude that Ms. Kasidoulis would have achieved her goal by the
commencement of the school term beginning in September 2010.  I reach this
conclusion for essentially the same reasons outlined above with respect to Ms. Kasidoulis’
past income loss.  The uncontradicted evidence before me was that prior to the
accident Ms. Kasidoulis was a very able teacher.  Notwithstanding the temporary
restriction of employment opportunities caused by school closures in the past
year a substantial number of teachers on call obtain continuing contracts in
each year.  In addition, Ms. Kasidoulis was clearly highly motivated to obtain
a permanent teaching position for financial reasons.

[54]        
I am also satisfied that Ms. Kasidoulis will be unable to earn any
substantial income between now and September 2011.  The evidence is quite clear
that Ms. Kasidoulis requires a lengthy period of rehabilitation treatment and
counselling to become physically able to return to work as a teacher on call.

[55]        
Dr. Travlos’ opinion is that even if Ms. Kasidoulis follows the
recommended rehabilitation program contained in his report, it is more probable
than not that she will not be able to return to full-time employment.  Dr.
Condon testified that on her last visit to him on July 20, 2009, she was still
complaining of essentially the same symptoms that she had when he first saw her
on September 21, 2006.  All of the physicians agree that it is probable that
Ms. Kasidoulis will benefit from a reconditioning and rehabilitation program
basically as outlined in Dr. Travlos’ report.  They do, however, disagree with
respect to the extent of that improvement, or at least with respect to the
extent to which that improvement can be predicted at the present time.

[56]        
The only medical expert called by the defendant was Dr. Arthur, a
orthopaedic surgeon.  Dr. Arthur was qualified as an expert entitled to give
opinion evidence with respect to orthopaedics.  He generally agreed with Dr.
Travlos’ report and with his recommendations for Ms. Kasidoulis’ treatment. 
However, he did not agree with Dr. Travlos’ opinion that it was more likely
than not that Ms. Kasidoulis will be unable to return to full-time employment
after that treatment.  Dr. Arthur was of the view that it is not possible to
know the outcome of the rehabilitation and conditioning program until it
occurs.  I do not understand Dr. Arthur to be of the opinion that Ms. Kasidoulis’
pain will disappear as a result of the reconditioning program.  It is his view,
however, that that reconditioning program may make it possible for Ms. Kasidoulis
to return to full-time work notwithstanding her continuing symptoms.

[57]        
I prefer the evidence of Dr. Travlos and Ms. Robertson on this issue to
that of Dr. Arthur.  Dr. Travlos is a specialist in rehabilitation medicine. 
Ms. Robertson has observed Ms. Kasidoulis over a long period.  In addition Dr.
Arthur does agree that Ms. Kasidoulis’s prognosis is guarded.

[58]        
Once Ms. Kasidoulis completes the recommended rehabilitation program as
set out in Ms. Robertson’s and Dr. Travlos’ reports, she should be able to work
three days per week as a teacher on call.  This is, of course, provided she is
given adequate home support.

[59]        
I therefore conclude that I should assess damages for loss of future
income earning capacity based on the difference between what Ms. Kasidoulis
would have earned as a full-time teacher and what she is likely to earn in her
post-accident condition.  I also consider that there are a number of
contingencies I should take into account.  I will address those later in these
reasons.

[60]        
Teachers in Coquitlam on continuing contracts are placed in one of four
categories, category 4, category 5, category 5+ and category 6.  I understand
that counsel are agreed that Ms. Kasidoulis would be considered to be a
category 5 teacher.  Under the current collective agreement the teacher salary
grid contains 11 steps beginning at step 0 and culminating at step 10.  A
category 5 teacher is entitled to be paid $45,000 at step 0.  This increases by
annual increments to $72,895 at step 10.

[61]        
Counsel are agreed that the non-wage benefits accruing to a teacher on a
continuing contract equal 12% of the teacher’s gross earnings for the purpose
of calculating Ms. Kasidoulis’ income earning potential as a full-time
teacher.

[62]        
I heard actuarial and economic evidence from two well qualified experts
in this case.  Mr. Darren Benning presented a report on behalf of Ms. Kasidoulis. 
Mr. Mark Szekely presented a report commenting on Mr. Benning’s report.  The
principal disagreement between the two economists was over the appropriate
multiplier to use in assessing Ms. Kasidoulis’ future income claim.  Mr.
Benning has used a multiplier of $16,417 to age 64 while Mr. Szekely considers
a multiplier of $11,210 to be more appropriate.  The significant difference
between these two multipliers arises from a disagreement over whether there
should be a discount for what are called part-time effects, that is, the risk
or likelihood that Ms. Kasidoulis would have worked only part-time at some
point in the future even if not injured.  Mr. Benning has not made any
allowance for this contingency because he considered Ms. Kasidoulis’ particular
circumstances.  Mr. Szekely has made a substantial discount for this
contingency based on average labour market statistics for females with a
bachelor’s degree.

[63]        
I have decided that it is more appropriate to use Mr. Benning’s
multiplier in assessing Ms. Kasidoulis’ damages under this head.  I am
satisfied that it is correct to adjust the average contingency to take into
account the particular circumstances of an individual plaintiff.  In this case
there seems to be little risk that Ms. Kasidoulis would be required to reduce
her hours in she was on a continuing contract.  I also do not think it
appropriate that the defendant should benefit from the possibility that she
might have chosen to do so had she not been injured.  It must not be forgotten that
damages for loss of future income are awarded for a loss or diminishment of
capacity.  I also consider that there would be an element of double counting
against Ms. Kasidoulis if I apply a significant part-time employment discount
to her lifetime earnings from full-time employment, then reduce my award for
what I consider to be the likely part-time income she will receive from working
as a teacher on call.

[64]        
In his closing submission, Mr. Hayden presented a number of calculations
of the amount of income that Ms. Kasidoulis may lose as a result of the
accident.  These are of course actuarial calculations only.  Mr. Robinson did
not dispute the accuracy of the calculations, although he did of course contest
the assumptions on which they are based.  Counsel has calculated Ms.
Kasidoulis’ loss of income based on a comparison of what she would have earned
as a full-time teacher on a continuing contract and what she can expect to earn
as a teacher on call in her post accident condition.  Taking the figures for such
income loss to age 59, based on Ms. Kasidoulis being able to work three
days a week on average, indicates a loss of income of $708,479.00.

[65]        
I think that this figure must be adjusted to take into account a number
of contingencies.  Firstly, there was evidence before me that Ms. Kasidoulis
may be able to work four days a week once she undergoes the recommended
reconditioning program.  It is also possible that Ms. Kasidoulis might not have
obtained a continuing contract by September 2010.  On the other hand, it may be
that she will not be able to work even three days a week if the doctors are
wrong in their estimation of the effects of the reconditioning program.  Given
all the circumstances, I consider that I should discount the damages awarded under
this head of damages by 20%.  After giving effect to that discount and rounding
the award, I assess Ms. Kasidoulis’ damages for loss of future income earning
capacity at $550,000.

COST OF FUTURE CARE

[66]        
In this case, Ms. Kasidoulis makes a substantial claim for the cost of
future care.  The proper test to be applied in assessing such a claim was
recently revisited in the decision of the British Columbia Court of Appeal in Aberdeen
v. Zanatta, 2008 BCCA 420.  I need not repeat the analysis set out
in that case.  In my view, an award for the cost of future care is appropriate
when the plaintiff is able to demonstrate that such care is medically justified
to promote the mental and physical health of the plaintiff to restore the
plaintiff to her pre-accident condition.  This requires a careful analysis of
the items claimed by the plaintiff in the light of the medical evidence before
me.

[67]        
There is a consensus among the medical professionals including Dr.
Travlos, Dr. Arthur and Ms. Robertson that Ms. Kasidoulis will benefit from an
active rehabilitation and reconditioning program.  It is likely that that
program will take approximately one year.  I am also satisfied that during that
program Ms. Kasidoulis will require home support and will probably be unable to
earn any significant amount of income.

[68]        
Before turning to a detailed consideration of the claim for cost of
future care I think it right to comment on the evidence of Ms. Robertson. 
I found Ms. Robertson to be a reliable and well-qualified witness.  In my view,
the attacks made on Ms. Robertson’s objectivity and credibility in the
defendant’s closing submissions are quite unwarranted.  I note that the
defendant did not tender any evidence from an occupational therapist which in
any way contradicted Ms. Robertson’s opinions.

[69]        
I am also of the view that Ms. Robertson’s recommendations were
generally consistent with those of Dr. Travlos.  Accordingly, I have no
hesitation in relying on her evidence in assessing damages for cost of future
care.  Ms. Robertson’s recommendations are summarized in a Cost Summary Chart
presented by plaintiff’s counsel.  I reproduce that chart in these reasons as
follows:

COST SUMMARY CHART

[70]        
While there was some question in the evidence as to the timing and
sequencing of some of the recommendations made, I am of the view that most of
the recommendations made by Ms. Robertson are medically justified given Ms. Kasidoulis’
on-going complaints.

[71]        
I am, however, not satisfied that Ms. Kasidoulis will require the
intensity of psychological intervention set out in Ms. Robertson’s report.  In
my view, a more appropriate allowance for such on-going psychological
intervention would be to provide for six sessions per year on an on-going
basis.  I am also satisfied that in determining the amount which is appropriate
to award for long-term homemaking and short-term homemaking a blended rate of
privately located ad hoc support and commercial support is warranted.  I
am satisfied on the evidence that Ms. Kasidoulis may well be unable to obtain
private properly qualified assistance for her own resources and may find it
necessary to turn to commercial service providers for those services over the
course of her working life.

[72]        
I am also not convinced that it is appropriate to make an award for
household assistance of two to three days per week from age 61 to age 80 as
sought by plaintiff’s counsel.  In my view, the sum of $25,000 should be
sufficient to provide Ms. Kasidoulis with some additional assistance after she
retires and when she will, of course, be free of child care responsibilities.

[73]        
In this case, both the plaintiff’s and defendant’s economist agree that
the appropriate multiplier for the cost of future care beyond the current year
was $22,429.  Based on this agreement and on Ms. Robertson’s recommendations,
the cost of future care claimed is therefore summarized as follows:

LUMP SUM PRESENT
VALUE OF FUTURE COST OF CARE APPLICABLE TO STELLA KASIDOULIS BASED ON A NORMAL
LIFE EXPECTANCY

[74]        
Based on my finding that it is likely that Ms. Kasidoulis will be able
to work only three days per week in the future and that she will require only
six psychological counselling sessions per year after year one and limiting
household assistance to $25,000 from age 61 on, I award damages for the cost of
future care at $250,000.

SPECIAL DAMAGES

[75]        
Ms. Kasidoulis claims the sum of $14,825 for homemaking expenses for a
homemaker who provided services between May 2008 and November 2009.  Given the
evidence in this case I am satisfied that that claim is reasonable and ought to
be allowed.

[76]        
Ms. Kasidoulis also claims as special damages invoices from Diana
Robertson in the amount of $6,345.  These invoices are said to relate to
occupational therapy services provided to Ms. Kasidoulis.  Counsel for the
defendant submitted that these services are not properly recoverable because
they relate not to the provision of medically justified services but to the
assessment of Ms. Kasidoulis for the purposes of preparing a medical/legal
report.  Counsel also points out that these services were funded in the first
instance by counsel for the plaintiff and that there is no clear evidence
before me that there is any expectation that plaintiff’s counsel would be
reimbursed for them.

[77]        
After a review of the invoices, I have concluded that some do seem to be
more closely related to the preparation and presentation of Ms. Kasidoulis’
legal case then to the providing of medically justified services.  In all of
the circumstances, I would award the sum of $2,000 with respect to these
invoices.  In my view, the balance of the invoices more properly constitute
disbursements incurred which may be recoverable as part of an award of costs.

[78]        
Accordingly, I award special damages of $16,825.

SUMMARY

[79]        
Therefore assess the plaintiff’s damages as follows:

[80]        
In view of the authorities and the evidence before me, I consider that
the total award I have made in this case is appropriate and fair both to Ms. Kasidoulis
and Ms. Russo.

[81]        
As I have indicated earlier in these reasons, counsel are agreed that
they can reach an agreement with respect to appropriate adjustments to this
award for the impact of income tax on the amount awarded for past wage loss and
any necessary gross-ups with respect to the cost of future care.

[82]        
Subject to any application which counsel wish to make the plaintiff is
entitled to her costs on Scale B.

“The
Honourable Mr. Justice Sewell”