IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100816

Docket: M083592

Registry:
Vancouver

Between:

Kirandeep Sandher

Plaintiff

And

Douglas Hogg

Defendant

Before:
The Honourable Madam Justice Dardi

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Kirandeep Sandher, was injured in a motor vehicle
accident on September 5, 2006. The defendant has admitted liability.

[2]            
The assessment of damages proceeded to trial under Rule 66 of the former
Rules of Court. However, at the commencement of trial, the parties
agreed to remove the matter from Rule 66.

[3]            
Ms. Sandher was working as a laser hair removal technician at the
time of the accident. As of the date of trial, she was 27-years-old and
employed as a receptionist in an eye care clinic.

[4]            
Ms. Sandher claims that as a result of the accident, she is
continuing to suffer pain in her left shoulder and lower back that prevents her
from pursuing her career goal of becoming a member of the RCMP. She claims an
award of $50,000 to $60,000 for non-pecuniary damages; $800 for past wage loss
to October 13, 2009; and $125,000 for loss of future earning capacity.

[5]            
The defence concedes that Ms. Sandher sustained injuries in the accident
but contests the severity of and duration of those injuries. The defence argues
that an appropriate award for non-pecuniary damages is $25,000 and that Ms. Sandher
is not entitled to any damages for either past or future loss of earning
capacity.

[6]            
The defence has agreed to special damages in the amount of $961 and an
award for the cost of future care in the amount of $2,000.

FACTS

A. Pre-Accident

[7]            
Ms. Sandher was a healthy, active 23-year-old woman at the time of
the accident. She resided in Surrey with her parents, brother, sister-in-law,
and nephew.

[8]            
She finished high school in 2000, but she did not graduate as she had
not earned sufficient course credits. She eventually obtained her graduate
equivalency degree in 2002. She candidly admitted that she was never a strong
student.

[9]            
She testified that as a youth she developed a keen interest in policing.
When she was in Grade 12 she was selected to participate in the RCMP Youth Academy which was a program implemented for students who were interested in a career
with the RCMP. She was chosen as a candidate after a physical fitness
assessment and interview process. She successfully completed the 9 day program.
When she was 14-years-old she participated in the army cadets, which also
required discipline and rigorous physical training.

[10]        
From approximately 2000 to 2004 she performed volunteer work for the
Surrey Crime Prevention Society, which is a non-profit organization. She
testified that as a volunteer she assisted members of the RCMP with
surveillance and drinking and driving counter attack. She found this work
exciting.

[11]        
In 2003, she obtained her firearms licence and up until the time of the accident
she regularly attended the shooting range.

[12]        
She began attending Langara College in the fall of 2003. As a result of
her failing grades, she was placed on academic probation. Her explanation for
her poor academic performance was her failure to apply herself.

[13]        
In December 2003, she trained for and began working occasionally as
a laser hair removal technician at her sister’s salon. She was also working
full time at Athlete’s World at the time.

[14]        
In March 2004, Ms. Sandher was hired on a contract-basis to work
during the busy tax season as a mail clerk for the Canada Revenue Agency
(“CRA”).

[15]        
In the spring of 2004, she again registered at Langara College. She withdrew from two courses and passed one course. Her explanation for her poor
academic performance was that she was focused on her employment and earning
money. She testified that during this period she was maturing and acquiring
life experience.

[16]        
In September 2004, she registered at Kwantlen University for three
courses; however, in the fall of 2004, the plaintiff’s mother was diagnosed
with cancer. Ms. Sandher withdrew from Kwantlen University to focus on
caring for her mother. As she was her mother’s primary caregiver, she also
ceased volunteering with the Surrey Crime Prevention Society.

[17]        
During her mother’s illness, Ms. Sandher continued working at her
sister’s salon because of the flexibility in hours it afforded. Additionally,
in the spring of both 2005 and 2006, she again accepted contracts with the CRA
to work as a mail clerk during the tax season.

[18]        
She testified that from 2002 until the time of her mother’s diagnosis
she prepared for the RCMP’s physical ability requirement evaluation (“PARE”) by
cardio vascular and weight training at the gym. The test requires that a
successful candidate complete a series of rigorous physical activities within a
stipulated time period. Her explanation for not applying to the RCMP prior to
her mother’s diagnosis was that she first wanted an opportunity to mature and
acquire some life experience.

[19]        
After her mother’s diagnosis, she continued to attend the gym but with
less frequency.

[20]        
By December 2005, Ms. Sandher’s mother’s cancer was in
remission and by early 2006, her responsibilities at home were significantly
reduced. She testified that she refocused on preparing for the RCMP application
by researching and watching videos of the PARE. She tried to “get back into the
zone” mentally and physically to ensure that she would do well when it was time
for her to apply. She did not perform any volunteer work after 2004.

[21]        
Although there was no evidence that she played any organised sports, Ms. Sandher
testified that she had always been interested in athletic pursuits and she
participated in sports. She described herself as a “huge tomboy”. Her sister
testified that prior to the accident, Ms. Sandher was “very outdoorsy and
very outgoing” and that she had enjoyed snowboarding, skiing, camping
and hiking. Ms. Sandher did not provide any evidence on her participation
in these particular activities. However, overall the evidence demonstrates, and
I accept, that prior to the collision Ms. Sandher was an energetic and
physically active young woman.

B. Accident

[22]        
On September 5, 2006, when Ms. Sandher was operating a 2001 Honda
Civic on King George Highway, she was rear-ended by the defendant’s vehicle.
Prior to the impact she had slammed on her brakes because the vehicle in front
of her had suddenly stopped. She also tensed prior to the impact because she
saw the defendant “approaching fast” in her rear view mirror.

[23]        
The plaintiff’s vehicle sustained damage to the rear bumper and mounting
bracket.

[24]        
The defendant passed away before trial. In his statement to ICBC, he
described the impact as “not very severe”.

[25]        
After the accident, the plaintiff got out of her vehicle and exchanged
information with the defendant. She testified that she was in shock and felt “a
little sore.” She drove to her sister’s home.

C. Post-Accident

[26]        
The following day she saw Dr. Verma at a walk-in clinic because she
was experiencing upper back and shoulder pain. He prescribed medication for the
pain.

[27]        
In the week following the accident, the tightness and soreness increased
and she experienced difficulties sleeping. As the weeks progressed, she
testified that she developed pain in her left middle and lower back which began
radiating into her hip. She continued having problems sleeping. Routine
activities such as blow-drying her hair caused her discomfort.

[28]        
 With respect to restrictions on her recreational activities, she
testified she could no longer run or do push-ups and pulls-ups. The lack of
activity resulted in her gaining weight and becoming anxious, frustrated and
moody.

[29]        
Ms. Sandher attended 13 sessions of physiotherapy from September
15, 2006 to October 27, 2006.

[30]        
She saw Dr. Verma again on November 10, 2006. Although he
recommended she continue with physiotherapy, she declined to do so. She did not
find it helpful as any relief it provided was temporary.

[31]        
Ms. Sandher testified that after the accident, she took a few weeks
off from her job at her sister’s salon. Working as a laser hair removal
technician demanded repetitive movements and sitting for extended periods of
time, which aggravated her back pain. She says that she could not perform the
longer appointments, which could last up to three hours. She eventually assumed
clerical work at her sister’s salon. She decided to leave her job at the salon in
January 2007 both because of the physical discomfort she was experiencing and
because she had never intended to pursue this type of work permanently.

[32]        
Shortly thereafter she decided to move forward with her application to
the RCMP. She wrote and passed the entrance exam in February 2007. The next
step in the application process was to successfully complete the PARE test. In
the summer of 2007, she tested herself and determined she could not perform the
PARE. She claims that but for the injuries she would have completed it.

[33]        
Ms. Sandher went to see her family doctor, Dr. K. Singh, for
the first time on January 9, 2007. Her primary concerns were neck, shoulder and
lower back pain, and sleep disturbance. Her physical examination revealed
tenderness of the neck muscles and a diminished range of motion in the neck and
lumbar spine. Dr. Singh prescribed prescription anti-inflammatory
medication and suggested massage therapy, gym exercise and yoga. She saw Dr. Singh
again on May 29, 2007 and June 26, 2007. She reported to Dr. Singh
neck and back pain on her left side radiating down into her left leg. She also
complained of gaining 15 pounds.

[34]        
Ms. Sandher testified that she had developed constant and chronic
pain in her lower back. She took some medication but did not want to become
dependent on it. She made efforts to improve her symptoms on her own; she did
yoga and stretching at home. In March 2007, she was attending the gym about three
times a week and doing 30 to 45 minutes of cardiovascular workout.

[35]        
Ms. Sandher attended seven massage therapy sessions from June 26 to
August 28, 2007. She testified that these treatments only provided her with
temporary relief.

[36]        
At their May 29, 2007 appointment, Dr. Singh requisitioned X-rays
of Ms. Sandher’s neck and lumbar spine. They showed a reversed lordosis at
the C5 vertebra and slight scoliosis of the dorsal spine.

[37]        
At their July 23, 2007 appointment, Dr. Singh prescribed a muscle
relaxant to help with pain and sleep and also requisitioned a CT scan of her
lower back. The CT scan showed minor facet-degenerative arthritis in her lower
back. There was minor bulging of the L5-S1 disc and the S1 root was touched but
not compressed.

[38]        
On September 11, 2007, Ms. Sandher reported lower back pain radiating
into her left leg. Dr. Singh’s physical examination of Ms. Sandher
showed a decreased range of motion in her lower back and decreased straight
lifting of her left leg. Given her abnormal CT scan and continuing complaints
of lower back pain, Dr. Singh referred Ms. Sandher to Dr. J.
Jaworski, a rehabilitation and physical medicine specialist.

[39]        
In September 2007, Ms. Sandher commenced employment three days a
week at an eye-care clinic where she is currently employed. She works as a
receptionist and performs various clerical duties. She testified that her
employer permits her flexibility in terms of the breaks she requires.

[40]        
Ms. Sandher attended the Karp Rehabilitation program commencing on
October 25, 2007, and by January 2008 she had been advised she was fit to
return to her clerical job on a full-time basis. Ms. Sandher testified
that the exercises the kinesiologist showed her provided her with some
relief. In January 2008, she was also taking naproxen, which is an
anti-inflammatory medication, and amitriptyline, which is an antidepressant and
can assist with pain relief and sleeping.

[41]        
In November 2008, Ms Sandher enrolled in a ten month full time make-up
artistry course at Blanche Macdonald Centre. She attended the program but did
not receive a diploma because she has not yet completed the course work for two
courses. She stated that while she is not passionate about this work, it
provides her with a “plan B” if it turns out she cannot achieve her lifelong
goal of joining the RCMP.

[42]        
 In April 2009, Ms Sandher discontinued her gym membership. In June
2009, she admitted she was only exercising once every two weeks. However, in
July 2009, she attended five training sessions with a personal trainer, which
she testified were beneficial.

[43]        
In June 2009, Ms. Sandher received trigger-point injections from Dr. Jaworski
after she reported to him that she was feeling discomfort in her left upper and
middle back and trapezius. Dr. Jaworski described trigger-point injections
as temporary treatments to alleviate chronic myofascial pain. This
therapy involves injecting a local anaesthetic or cortisone preparation into a
“trigger point” in the musculoskeletal structure that is producing pain.

D. At Trial

[44]        
Ms. Sandher’s dominant complaint at trial was the pain she
experiences in her left shoulder, lower back and hip. She testified that while the
trigger point injections administered by Dr. Jaworski have “dulled the
pain”, she continues to experience pain on a daily basis. She has more “bad
days” than “good days”. She describes the pain on the “bad days” as being
intense. She continues to have difficulty sleeping which makes her irritated
and frustrated with her family. She has become less social.

[45]        
Ms. Sandher testified that the only medication she is currently
taking is naproxen, which she takes once every one to two weeks.

[46]        
As referred to above, she currently works as a receptionist at an
eye-care clinic.

[47]        
She testified that she does yoga and stretching exercises at home and
when she can, she attends yoga classes. With respect to her recreational
activities, she testified that she no longer rollerblades or plays hockey or
volleyball. She says that while she may kick around a soccer ball without
running, she no longer engages in recreational activities and sporting events
with her friends. Since the accident, she does not attend the firing range because
the recoil from the firearms demands a strong back.

[48]        
She also described herself as worried, frustrated, and anxious about her
future.

MEDICAL EVIDENCE

[49]        
Ms. Sandher tendered the expert evidence of Dr. Singh and Dr. le
Nobel.

A. Dr. Singh

[50]        
Dr. Singh was qualified to give opinion evidence as a family
practitioner. Her report was dated February 3, 2009. Prior to completing her
report, she had last seen Ms. Sandher on July 14, 2008.

[51]        
She testified that she found Ms. Sandher a cooperative and
compliant patient who was very motivated to improve. Her opinion is as follows:

I last saw Ms. Sandher on July 14th, 2008 and she
reported that the rehabilitation therapy had helped her and she was doing yoga
and swimming. She still noted neck, mid and lower back pain. I noted that her
mood was not depressed, but was frustrated and irritable at times. I did not
feel that she was suffering from major depression and neither did Dr. Jaworski.
I advised her to follow up with Dr. Jaworski for the trigger point
injections, continue to be active and to follow up as needed.

I have not seen Ms. Sandher
since July 14, 2008. It is difficult for me to comment on her prognosis or her
current physical health. … I would anticipate a favorable prognosis for her
given the improvement that she has shown, her young age, and no pre-existing
problems with her neck and lower back. However, I would be able to give a more
definitive prognosis if I were able to review her again and will do so if you
or Ms. Sandher feels that it is necessary that I review her once again.

[52]        
At their April 3, 2009 appointment, Ms. Sandher reported continuing
complaints of middle and lower back pain.

B. Dr. le Nobel

[53]        
Dr. le Nobel was qualified to give opinion evidence as a specialist
in physical medicine and rehabilitation. He assessed Ms. Sandher on April
7, 2007 and June 9, 2009, and he prepared two reports dated April 23, 2007 and
June 22, 2009. Dr. le Nobel diagnosed Ms. Sandher with chronic pain
condition. In his report, he wrote the following:

Present Diagnosis

It is now over 2 years and 9 months since the
September 5, 2006 motor vehicle accident. Based on the time elapsed since
being injured and based on Kirandeep having had ongoing pain since that injury,
she is affected with a chronic pain condition (a chronic pain condition is one
which persists for longer than would be anticipated for tissue healing to
occur). She has pain through her spinal column, diagnosed as myofascial pain
(myofascial pain is pain generated in injured musculoligamentous soft tissue
and connective tissue structures). She has headache, diagnosed as cervicogenic
headache or pain referred to her head from the cervical spine. She has neck
pain, tenderness and restriction of movement due to the myofascial pain. She
has low back pain, diagnosed as mechanical pain (mechanical pain is pain felt
primarily in the spinal column, made worse by changes in posture and changes in
position).

[54]        
With respect to the CT scan report done in August 2007, he testified
that it showed problems in the facet joints on the left and right side of the
Lumbar 4-5 level. It also showed bulging of the intervertebral disc. Although
the disc was bulging and touching the first sacral nerve root, it was not
compressing or displacing it.

[55]        
On July 28, 2009, Ms. Sandher had an MRI in response to her reports
of radiating pain in her left lower leg, with occasional pins and needles in
her left toes and weakness in her left hip. Dr. le Nobel testified that
the MRI did not show any indication of abnormality.

[56]        
Dr. le Nobel’s recommendations for treatment include spinal
injection treatments with installation of local anaesthetic and cortisone to
the lower lumbar facet joints.

[57]        
When he was asked in cross-examination whether his diagnosis of chronic
pain is based upon Ms. Sandher’s subjective reports of pain he testified
as follows:

Well, it’s based on her reported
pain and the aggravation of the pain with movements specific to cause increased
loading of those joints and based on the abnormalities that were found in the
CT scan, X-Ray and the tenderness corresponding to those abnormalities.

[58]        
With respect to his prognosis, he states as follows:

I am not anticipating complete resolution of her symptoms or
full restoration of her functional capabilities, although I believe some
benefit can be achieved through these types of interventions coupled with
ongoing attempts at gradually increasing her physical retraining effort. I
would support her continuing with the yoga and continuing to gradually progress
her cardiovascular fitness exercise with elliptical trainer, stationary bike,
Stairmaster machine, swimming or deep water running (non-impact exercise).

I would recommend as well that
she continue to attempt strength training, again starting with light weights
and/or elastic resistance for limb strength training, as well as core muscle
strength training. Some improvement is reasonably projected. It is not
anticipated that Kirandeep Sandher’s physical capabilities will improve to the
point that she could be successful in applying for a training programme for the
police force.

C. Dr. Jaworski

[59]        
Dr. Jaworski, who is a specialist in physical medicine and
rehabilitation, testified at trial but his report was not admitted. As a
result, his testimony was limited to his observations of Ms. Sandher as a treating
physician. He provided no opinions.

[60]        
Dr. Jaworski examined Ms. Sandher on January 14, 2008 and
February 11, 2008. Her physical examination showed that her lateral bending,
rotational trunk movement and hyperextension were moderately restricted. He did
not observe any non-verbal pain behaviours from Ms. Sandher. Dr. Jaworski
recommended that she escalate her exercise efforts and use yoga to improve her
general fitness level.

[61]        
On May 27, 2009, Ms. Sandher reported to Dr. Jaworski
discomfort on palpitation on the left side of her upper and middle back. On
June 5, 2009, Dr. Jaworski provided trigger-point injections into the
plaintiff’s lower back and again encouraged her to expand her exercise efforts.
On June 26, 2009, she reported to him that her lower back pain had improved
following the trigger-point injections; however, she also reported that the
pain in her trapezius, and, at her at request, he administered trigger-point
injections in that area.

[62]        
On August 21, 2009, Dr. Jaworski reported that “her pain coping
skills seem to be improving and she remains quite functional in spite of her
lingering aches and pains. I advised her to continue with her current exercise
program”.

D. Dr. Hawk

[63]        
Dr. Hawk, an orthopaedic surgeon, conducted an independent medical
examination of Ms. Sandher on June 11, 2009 and prepared a report dated
June 11, 2009. He also prepared a supplemental report dated September 30,
2009 in response to the report of Drs. Singh, le Nobel, and Jaworski. Dr. Hawk
was not called as a witness but his reports were marked as exhibits at trial.

[64]        
On the basis of his examination, he found no objective physical findings
to support Ms. Sandher being physically impaired.

[65]        
Dr. Hawk concluded that Ms. Sandher’s history was consistent
with soft tissue injuries to her upper and lower back. He opined that mild
arthrosis of the facet joints of the lower lumbar spine may be the source of
her lower back complaints, but during examination he noted that her lumbar
spine exhibited a normal range of motion with no sciatica. His opinion was that
her back complaints would improve with active strengthening exercises for her
core muscles and regular non-impact cardiovascular exercises would improve her
overall fitness and strength.

E. Findings

[66]        
I found the testimony of Drs. Singh, le Nobel and Jaworski to be
objective and professional.

[67]        
The absence of objective physical findings is not determinative of
whether Ms. Sandher continues to suffer from chronic pain. Since pain may
well be a subjective phenomenon not easily measurable by independent objective
indicia, the assessment of Ms. Sandher’s soft tissue injuries to a certain
extent turns on the assessment of her subjective complaints and reported
symptoms: Szymanski v. Morin, 2010 BCSC 1 at para. 106; and Shapiro
v. Dailey, 2010 BCSC 770 at para. 35.

[68]        
The defence contends that the minor damage to Ms. Sandher’s
vehicle is inconsistent with the severity of her reported injuries. While
evidence of vehicle damage is relevant to the assessment of injuries, ultimately
the extent of her injuries is to be assessed on the evidence as a whole: Robbie
v. King, 2003 BCSC 1553 at para. 35.

[69]        
In assessing Ms. Sandher’s injuries, I am also
mindful of the caution expressed by the court in Maslen v. Rubenstein
(1993), 83 B.C.L. R. (2d) 131 at para. 15.1 (C.A.), that the court should
be very careful when there is little objective evidence of continuing
complaints of pain persisting beyond what the defence asserts is the “normal
recovery period”.

[70]        
I accept the evidence of Ms. Sandher that her back and shoulder
pain has not resolved. I reject the defence suggestion that she is exaggerating
her symptoms to advance her litigation objectives; the evidence does not
support such a finding. The overarching frustration and emotional distress she
has experienced as a result of her persisting discomfort and pain was evident
in her testimony. I find her complaints of continuing shoulder and back pain
generally consistent with the surrounding circumstances and evidence.

[71]        
However, the preponderance of the evidence also supports a finding that Ms. Sandher
would benefit from adhering to a structured exercise regime; such a
rehabilitation program would be conducive to the promotion of recovery or at
least some improvement of her condition. The evidence also establishes that Ms. Sandher
has not been as proactive as she might have been in taking steps to pursue a
regular and structured physical fitness program. The reason for her not
pursuing such a regular regime to date is difficult to assess on the evidence.
I do accept that despite her apparent motivation to improve her condition, she
is struggling emotionally.

[72]        
On the totality of the evidence, I conclude that there is a realistic
prospect for significant improvement in the foreseeable future, but there is
also a realistic prospect that Ms. Sandher may never recover to her
pre-accident levels of fitness.

[73]        
In summary, having considered Ms. Sandher’s own evidence and all of
the medical evidence, I conclude that as a result of the accident Ms. Sandher
sustained soft tissue injuries to her shoulder and upper and lower back, and
that these injuries have caused her pain and suffering. I accept that Ms. Sandher
continues to experience pain from her injuries. I find on balance that there
will be some continuing chronic pain suffered by Ms. Sandher in the future
for an uncertain period of time.

DAMAGES

[74]        
The appropriate award for damages will be discussed in the following
sequence:

a)    non-pecuniary
damages;

b)    loss of future earning
capacity

c)     past wage
loss;

d)    cost of future
care; and

e)    special damages.

A. Non-Pecuniary Damages

[75]        
Ms. Sandher seeks an award of $50,000 to $60,000 for
non-pecuniary damages. Counsel for the defence concedes that Ms. Sandher
suffered some injury but submits that her injuries were minor and they resolved
within six to 12 months after the accident. Counsel
argues that there is little by way of ongoing objective
symptoms and an award of $25,000 is an appropriate award for pain and
suffering.

[76]        
The objective of non-pecuniary damages is to compensate
a plaintiff’s pain, suffering, and loss of enjoyment of life. The award is to
compensate a plaintiff for those damages she has suffered up to the date of the
trial and for those she will suffer in the future. The essential principle
derived from the authorities is that fairness and reasonableness of an amount
of an award for non-pecuniary damages is measured by the adverse impact of the
particular injuries on a particular individual plaintiff.

[77]        
The B.C. Court of Appeal in Stapley v.
Hejslet, 2006 BCCA 34 at para. 46, discussed the factors to be
considered in awarding non-pecuniary damages. The non-exhaustive list
includes:  the age of the plaintiff; the nature of the injury; the severity and
duration of pain; the degree of disability; the impairment of family, marital,
and social relationships; and loss of lifestyle. While fairness is assessed by
reference to awards made in comparable cases, it is impossible to develop a
“tariff” and each case is decided on its own unique facts: Lindal v. Lindal,
[1981] 2 S.C.R. 629 at 637.

[78]        
I have concluded that as a result of the accident, Ms, Sandher has
suffered pain and a loss of enjoyment of life, and that she will continue to do
so for an uncertain period of time.

[79]        
Prior to the accident, she was very active and enjoyed many recreational
and athletic activities. She no longer continues to do so. The accident has
significantly impacted and disrupted her life. She has suffered and will
continue to suffer some diminishment in her life-style. According to the
testimony of her friend, Ms. Bakshi, she has lost “her spark”. She remains
limited when compared to her pre-accident capabilities. She no longer enjoys shooting
activities. It is likely that she will continue to be somewhat restricted for an
uncertain period of time with respect to the scope of activities she would have
enjoyed but for the accident.

[80]        
The fact that to date Ms. Sandher has not adhered to a structured
exercise regime, which would at least be conducive to some improvement in her
condition, is reflected in my assessment of general damages.

[81]        
I have considered the following cases cited by Ms. Sandher’s
counsel on the issue of quantum of non-pecuniary damages: Bafaro v. Jiang,
2007 BCSC 686; Joyce v. Dorvault, 2007 BCSC 786; and Jones v.
Davenport, 2008 BCSC 18.

[82]        
I have also considered the additional cases cited by the defence: Moojelski
v. Edwards, 2009 BCSC 38; Chu v. Ponsford, 2008 BCSC 429; Nisbet
v. Pare, 2007 BCSC 1173; Lopez v. VW Credit Canada Inc., 2008 BCSC
320; and Golam v. Fortier, 2005 BCSC 598.

[83]        
While the authorities are instructive, I do not propose to review them
in detail as each case must be decided on its own individual facts.

[84]        
Having reviewed all of the authorities provided by both counsel, and in
considering all of Ms. Sandher’s particular circumstances, I conclude that
a fair and reasonable award for non-pecuniary damages is $40,000.

B. Loss of Future Earning Capacity

[85]        
Ms. Sandher argues that she should receive an award of $125,000.
She contends that had she not been injured in the accident, she more likely
than not would have continued with and ultimately succeeded in the RCMP
application process.

[86]        
Defence counsel contends that the evidence is insufficient to justify
any award for impairment of earning capacity.

Legal Principles

[87]        
The legal principle that governs this assessment
for loss of earning capacity is that, insofar as is possible, the plaintiff
should be put in the position he or she would have been in but for the injuries
caused by the defendant’s negligence: Lines v. W & D Logging Co. Ltd.,
2009 BCCA 106 at para. 185. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews v. Grand &
Toy Alberta Ltd., [1978] 2 S.C.R. 229.

[88]        
It emerges from the recent jurisprudence of the
Court of Appeal that the plaintiff must demonstrate impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a
"capital asset" approach: Perren v. Lalari, 2010 BCCA 140 at para. 32;
and Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 at 271 (C.A.). Regardless of the approach, the court must
endeavour to quantify the financial harm accruing to the plaintiff over the
course of her working career: Pett v. Pett, 2009 BCCA 232 at para. 19.

[89]        
Factors to consider in the assessment of the
value of the lost capital asset include:  whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;
is less marketable or attractive as an employee to potential employers; has
lost the ability to take advantage of all job opportunities that might
otherwise have been open; and is less valuable to herself as a person capable
of earning income in a competitive labour market: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.); and Kwei v. Boisclair (1991),
60 B.C.L.R. (2d) 393 (C.A.).

[90]        
As recently reviewed by the Court in Falati v.
Smith, 2010 BCSC 465 at para. 41, the other principles
which inform the assessment of loss of earning capacity include the following:

       1)       A plaintiff is entitled to compensation for real and substantial
possibilities of loss, which are to be quantified by estimating the chance of
the loss occurring. The standard of proof in relation to hypothetical or future
events is simple probability, not the balance of probabilities: Reilly v.
Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: Athey v. Leonati, [1996]
3 S.C.R. 458 at para. 27.

       2)       Allowances must be made for the contingency that the assumptions
upon which an award is based may prove to be wrong: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99
(C.A.); and Falati at para. 41. Evidence which supports a
contingency must show a “realistic as opposed to a speculative possibility”: Graham
v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.). Relevant contingencies
can include such things as the potential for improvements in health, opportunities
for advancement, decline in the economy and loss of employment, as well as the
usual chances and hazards of life: Trites v. Penner, 2010 BCSC 882 at para. 228

       3)       The court must assess damages for loss of earning capacity and not
calculate them mathematically; the overall fairness and reasonableness of the award
must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
The assessment is based on the evidence taking into account all positive and
negative contingencies.

Functional Capacity Evaluation

[91]        
Ms. Sandher underwent a functional capacity evaluation with Dominic
Shew, a certified occupational therapist, on May 5, 2008. His report dated June
3, 2008 sets out the results of his evaluation. Mr. Shew states that in
his opinion, “[t]esting results and clinical observations throughout the
assessment indicate that Ms. Sandher provided high levels of physical
effort” and further that, “Ms. Sandher’s capacity and restrictions
indicate that her subjective reports of her abilities and limitations were generally
consistent with the assessment results and findings”.

[92]        
With respect to her overall work capacity, Mr. Shew provides the
following opinion:

During testing Ms. Sandher
demonstrated the capacity to perform activity that requires sedentary to
modified medium level strength. Specifically, she consistently demonstrated
restrictions in her capacity for activity requiring vertical and horizontal
reaching as well as below waist work requiring bending and stooping. There were
measured restrictions in one handed carrying, two handed carrying, one handed
lifting and two handed lifting. There were also restrictions in her tolerance
for sitting. Overall there were restrictions in her overall endurance.

[93]        
Based upon his observations, he anticipates that she will require
periodic breaks to rest or change position in any occupation she pursues.

[94]        
With respect to her previous work as a laser hair-removal technician, in
his view, she met the strength demands of this line of work. She demonstrated
the ability to manage the body positional demands of the occupation. However,
in his report he writes:

She, however, displayed
difficulty performing tasks requiring prolonged, repetitive and extreme forward
and side-to-side reaching and extended periods of static sitting. Considering
that managing these physical demands are typically crucial demands of such an
occupation, her poor tolerance to these activities and body positions suggests
that she is likely able to perform her work duties on a part-time basis with
accommodations (e.g., breaks as needed to manage her symptoms). She may
be able to increase her hours close to full time but considering postural
accommodations observed particularly as testing progressed and considering her
response to testing the days following, she would be restricted in
performing longer procedures and will require ongoing accommodations from an
understanding employer. [Emphasis in original.]

[95]        
With respect to clerical work, he was also of the view that based on his
clinical observation she would likely experience the most difficulty with
prolonged periods of static sitting and would continue to require ergonomic
equipment and modifications in order to manage her symptoms.

[96]        
In his opinion, at the time of his assessment, Ms. Sandher did not
meet the strength demands required for working as a police officer and she
would likely experience difficulty tolerating the full physical demands of this
occupation.

[97]        
Mr. Shew was unshaken in cross-examination and I accept his
evidence.

[98]        
As the Court observed in Burton v. Bouwman, 2010 BCSC 371 at para. 159,
it is always difficult to predict a plaintiff’s career path. In this case, Ms. Sandher’s
young age and the fact that she has yet to embark on a clear career path
renders it particularly difficult.

[99]        
The primary submission of counsel for Ms. Sandher is that but for
the accident there was a real and substantial possibility that Ms. Sandher
would have succeeded in joining the RCMP. Defence counsel submits that this is
unlikely for the following reasons:

       1)       The
plaintiff’s interest in pursuing volunteer activities in support of an RCMP
application began to wane in 2003; her volunteer hours with the Surrey Crime
Prevention dropped from 155 hours in 2002 to 30 hours in 2003. When her mother
became ill in 2004, she stopped volunteering with the Surrey Crime Prevention
Society completely and never returned to these volunteer activities.

       2)       From
2004 to the date of the accident, the plaintiff focussed on working at her
sister’s salon and the CRA. She also took various courses at Langara College
and Kwantlen University, but did not focus her efforts on her schooling and
only obtained a passing grade in one course.

       3)       Although
the plaintiff had been out of high school for six years by the time of the
accident, she had not made any application to the RCMP during this time. The
first time she applied to the RCMP was in early 2007 following the accident.

       4)       In
the event the accident had not occurred and the plaintiff did apply to the
RCMP, there is no evidence that she would have been physically able to pass
PARE, which is a rigorous physical test.

[100]     For the
reasons outlined above, I am unable to conclude on the totality evidence that
absent the accident there was a realistic possibility Ms. Sandher would
have successfully completed the training and obtained employment as an RCMP
officer. Nor does the evidence support a finding that the accident has
foreclosed any genuine alternative career options involving physically strenuous
work.

[101]     However,
given Ms. Sandher’s relatively young age, level of education, and past
work history, I conclude that there is a realistic possibility that in the
future she would return to working as a laser hair removal technician. It is a
realistic alternative occupation for her.

[102]     I accept Mr. Shew’s
assessment that there are restrictions in her endurance which could adversely
affect her capacity to maintain a productive work pace. She is less capable of
performing the longer appointments. There is a realistic possibility that:

       i.         
the repetitive movements and sitting for extended periods of time would
aggravate her back pain and that she would encounter pain and some limitations
in performing tasks; and

      ii.         
her potential earnings would be impacted by her impairment and inability
to work for extended periods without a break.

[103]     In
summary, I conclude that Ms. Sandher has proven on a balance of
probabilities that the injuries she sustained have impaired her long-term
earning capacity. The preponderance of evidence also establishes a real and
substantial possibility that the impairment in her earning capacity will result
in a pecuniary loss in the future. Although the degree of her impairment is
relatively modest, it exists nonetheless.

[104]     Having
found that her future earning capacity is diminished due to the accident, I
must decide in light of the evidence regarding her skills, education and
abilities, the amount she should be awarded for the impairment.

[105]     In view of
my findings, this is not a proper case for the Court to engage in a comparison
of with-accident and without-accident earning trajectories of certain
professions or to engage in a mathematical calculation of loss. The
appropriate approach to assessing her loss is the capital asset approach set
out in Brown.

[106]     Given her
physical limitations, she is less marketable or attractive as an employee to
potential employers and has lost the ability to take advantage of all job
opportunities that might otherwise have been open to her.

[107]     The
evidence was that in 1997 she earned $10 per hour as a laser technician. Ms. Sandher
tendered evidence from an economist that the average annual earning of a female
aesthetician in Canada in 2009 was approximately $23,000.

[108]     The
evidence mandates that I must take into account a strong negative contingency
that notwithstanding her injury Ms. Sandher will find employment in the
future with either equivalent or better wages than that of a full-time laser
technician. Another contingency that must be taken into account is the prospect
for improvement in her symptomology.

[109]     Future
loss capacity awards must be assessed rather than calculated arithmetically. Taking
into account all of the evidence and future contingencies that may
arise, I assess the plaintiff’s damages for loss of future earning capacity
from the date of trial at $20,000.

[110]     I am
satisfied that in all the circumstances this is a fair and reasonable award.

C. Past Wage Loss

[111]     At the
time of the accident, Ms. Sandher was working as a laser hair removal
technician at her sister’s salon. She earned $10 an hour and typically worked
40 hours a week. She claims that that she was off work for two weeks; however,
her sister admitted that she had no records for the material time period.

[112]     On the
evidence, Ms. Sandher has not established a basis for an award for past
wage loss

D. Cost of Future Care

[113]     The
parties have agreed to an amount of $2,000.

E. Special Damages

[114]     The
parties have agreed to an amount of $961.

CONCLUSION

[115]     In
summary, Ms. Sandher’s damages are assessed at $62,961 consisting of the
following:

       1)       non-pecuniary
damages:                     $40,000

       2)       loss
of future earning capacity:             $20,000

       3)       cost
of future care:                                $2,000

       4)       special
damages:                                     $961

TOTAL:                                              $62,961

COSTS

[116]     If the
parties are unable to agree on costs, Ms. Sandher’s counsel is at liberty
to file written submissions within 60 days from this date of judgment. Counsel
for the defendant is to file written submissions in response within 45 days of
receipt of Ms. Sandher’s submissions. Any reply submissions must be filed
within 15 days.

“Dardi
J.”