IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20100816

Docket: 40267

Registry:
Kamloops

Between:

Tracy
Lee Schmidt

Plaintiff

And

John
Manley Hawkins

Defendant

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
On August 25, 2005, Mrs. Schmidt was driving her car on the highway
between Sparwood and Invermere, British Columbia. Mrs. Schmidt’s husband was
the front-seat passenger in the car; their two young children were in the back
seat.

[2]            
The Schmidt family were returning to Kamloops, British Columbia, having
attended Mrs. Schmidt’s grandmother’s birthday party in Sparwood.

[3]            
Just before the accident, Mrs. Schmidt’s vehicle was travelling at
approximately 100 kilometres per hour. As the Schmidt vehicle rounded a corner,
Mr. Hawkins, in his half-ton truck, drove into an intersection and stopped.
Mrs. Schmidt slammed on her brakes reducing her speed to between 70 and 80
kilometres per hour. She was unable to avoid hitting Mr. Hawkins’ truck.

[4]            
Mrs. Schmidt was injured in the accident.

[5]            
Mr. Hawkins accepts responsibility for the accident.

[6]            
The damages to both vehicles were substantial.

[7]            
Mrs. Schmidt seeks to have damages assessed. They are as follows:

·      
non-pecuniary damages;

·      
past loss of income;

·      
loss of future earning capacity;

·      
cost of future care;

·      
loss of homemaking services; and

·      
special damages.

[8]            
Mr. Hawkins acknowledges that Mrs. Schmidt was involved in a significant
motor vehicle accident. Mr. Hawkins acknowledges that the plaintiff was stiff
and sore after the accident.  Mr. Hawkins argues that the degree of Mrs.
Schmidt’s injuries were not so severe that her functioning was reduced and
impaired.

[9]            
Mr. Hawkins argues that Mrs. Schmidt failed to mitigate her damages by
not pursuing the advice of medical providers, and failing to look for and
obtain employment.

[10]        
After the accident, the Schmidt family remained at the accident scene
and were eventually transferred to the Invermere Hospital.

[11]        
At the hospital, Mrs. Schmidt was x-rayed, Tylenol 3 was prescribed and she
was advised to use ice.

[12]        
Upon the Schmidts’ discharge from the hospital and with the assistance
of a hospital nurse’s friend, a hotel was located for the Schmidt family to
stay.  Mr. Schmidt, together with the children, remained in the hotel.  Mrs.
Schmidt, together with the nurse’s friend, went to the accident scene to pick
up the Schmidts’ belongings.  Mrs. Schmidt then picked up food for the family
to eat.

[13]        
The next day, Mr. Schmidt’s parents picked up the Schmidt family and
drove them home to Kamloops.

[14]        
As a result of her injuries, Mrs. Schmidt saw her family doctor, Dr.
Gladman, on August 30, 2005; and remained off work until September 6, 2005.

Background of Mrs. Schmidt

[15]        
Mrs. Schmidt was born in Calgary, Alberta on June 25, 1970. She and her
family moved to Kamloops in 1975. She graduated from high school in 1988. After
graduation, she had short-term jobs and then attended college for six months.

[16]        
In August of 1990, Mrs. Schmidt became employed with a local car
dealership, where she remained in their employment for a period of almost 16
years. In April of 2006, she ended her employment with the dealership. Mrs.
Schmidt then took part-time employment at an aviation parts business, which
Mrs. Schmidt terminated in November of 2006.

[17]        
During the period of her employment with the dealership, Mrs. Schmidt married
and gave birth to two children; Cara on November 24, 2000; Bradley on May 22,
2004. Mrs. Schmidt had six month’s maternity leave for the birth of Cara and a one-year
maternity leave for the birth of Bradley.

[18]        
While Mrs. Schmidt was employed at the dealership, her mother and
mother-in-law provided daycare for the Schmidt children.

[19]        
In September of 2010, Cara will enter Grade 5; Bradley will enter Grade
1.

Background of Mr. Schmidt

[20]        
Mr. Schmidt is age 44. He and his family moved to Kamloops when he was young.
He graduated from high school, attended college and eventually obtained his
certification as an electrician. Sometime later, he attended college and
completed a two-year course as a computer technician. Over the years, Mr.
Schmidt had employment as a computer technician with three different employers
until the fall of 2005, when he terminated his employment with his then
employer, returning to work as a heavy duty electrician.

[21]        
As an electrician, Mr. Schmidt’s employment took him out-of-town for
periods of time.  By 2009, his employment was in Kamloops and it continues in
Kamloops.

[22]        
Mr. Schmidt’s passion is computers. In 2004, he started a home-based
business called Kamloops ePublishing (“ePublishing”). ePublishing had two parts
to it: Kamloopscity.com and Kamloops House Tours.com. Kamloopscity.com posts
events happening in Kamloops on its website. It also intended to sell
advertising which was to be a source of income. Kamloops House Tours.com
offered on its website 360º degree photographs of houses which were for sale. Its
customers were realtors. Mr. Schmidt’s sister, Michelle Pehota, was his only
paid employee. Since the business started, Mrs. Schmidt has always provided
bookkeeping services for the business.

[23]        
Mr. Schmidt’s hope was that someday this business would be the sole
source of family income.

The Plaintiff’s Injuries

[24]        
Mrs. Schmidt stated that by the time she arrived at the Invermere
Hospital, she was feeling pain between her shoulder blades and stiffness in her
neck, such that she could not move her neck. She had some bruising in the area
where her seatbelt crossed over her shoulder and then over to her hip. She had
a bruise on her right knee. She stated that she suffered headaches as a result
of the accident, which started two weeks after the accident.

[25]        
During the week that Mrs. Schmidt was off work, she spent her time
resting or lying down. During the period she was off work, family members
assisted Mrs. Schmidt with housework and childcare. Mrs. Schmidt was
compensated for the week that she was away from work.

[26]        
The headaches that Mrs. Schmidt suffers are the most painful of her injuries.
The headaches start at the base of her skull, travel over her eyes and into her
forehead. Since the headaches started, Mrs. Schmidt states that they are
constant and never let up. When she bends over, the headaches are more severe.
She claims her headaches are so severe that it causes her eyes to squint. The
headaches start at approximately 10 a.m.

[27]        
The pain in her shoulder blades is on both sides.

[28]        
Mrs. Schmidt has received medical treatment, which included a variety of
physiotherapy treatments, medications prescribed by various doctors, massage
therapy, and a variety of treatments within physiotherapy, a facet joint
cortisone injection, occipital nerve blockage and Botox treatments. She pursues
exercises at home, which includes stretching, walking and yoga.

[29]        
Mrs. Schmidt’s evidence is that until February of 2009, there was no
change in her condition; the headaches persisted; there was pain in her
shoulder blades and neck. Mrs. Schmidt acknowledged that her condition did not
get worse from the time of the accident, nor did her condition get better,
despite physiotherapy with John Howick in 2008 and 2009 and participating in
yoga. Mrs. Schmidt claimed there is a baseline from which she did not improve.  Mrs.
Schmidt acknowledged that stopping physiotherapy in early 2010 did not cause
her condition to become worse. Mr. Howick confirms this when he states:

…that despite over 4 weeks
break without treatment and increased activity there was no complaints or
objective signs of a flareup.

[30]        
Upon Mrs. Schmidt receiving occipital nerve blocks and Botox injections,
she describes them as providing relief from her headaches. She states that the
Botox treatments have made a substantial difference. At the time of trial, her
headaches are not as long nor as frequent.

[31]        
Some of the medical reports filed as evidence state that Mrs. Schmidt
complained of low back pain, as well as some difficulties with her elbows.
These complaints do not relate to the accident.

[32]        
At the time of trial, Mrs. Schmidt had improved considerably. She was no
longer taking prescribed medication. Instead, she was taking over-the-counter
medications and using a topical cream recommended by Dr. Kowbel.

Pre-Accident and Post Accident Activities

[33]        
Before the accident, the plaintiff enjoyed sewing. She made clothing for
herself and other family members.

[34]        
She participated in cross-country skiing and skating, which she has not
resumed.

[35]        
She and her husband regularly enjoyed having friends over for meals. She
is unable to have friends over as she does not know how she will be feeling.
She enjoyed baking and gardening. As a result of the accident, her mother helped
her with some homemaking responsibilities. Her father and a neighbour assisted
in gardening. She is now back to sewing and baking. She participates in all her
children’s activities.

[36]        
The plaintiff, prior to the accident, did not participate in sports. Her
long-time friend, Alison Tarlit, stated that neither she nor Mrs. Schmidt were
involved in sports.

[37]        
Other than stating that she did cross-country skiing and skating, there
was no evidence before me as to how often Mrs. Schmidt participated in these
sports and when the last time was that she participated in these sports. I
conclude that Mrs. Schmidt’s activities were interrupted by the accident. These
were the social activities in her home, sewing, baking, some household
activities and some gardening.

[38]        
Mrs. Schmidt and her friend, Ms. Tarlit, take their children on outings.
Ms. Tarlit observed some physical discomfort in Mrs. Schmidt, particularly when
she is sitting on her couch in her home. In addition, Ms. Tarlit observed that
when they were on road trips with their children, Mrs. Schmidt would often be
shifting in her seat. Ms. Tarlit observed that Mrs. Schmidt lost some of her
sparkly personality and at times appeared grey in her outlook after the
accident.

Doctors’ Medical Evidence

[39]        
Mrs. Schmidt has been examined by a number of doctors and treated by
physiotherapists and an occupational therapist.

[40]        
Dr. Gladman was Mrs. Schmidt’s family doctor. Dr. Gladman did not
provide evidence to the court. This evidence was sought by Mrs. Schmidt. For
reasons unknown, it was not provided. Mr. Hawkins and Mrs. Schmidt have agreed
that no adverse interest is to be drawn for failing to provide evidence from
Dr. Gladman. Dr. Gladman’s clinical records were referred to at this trial
which I will deal with later in these reasons.

[41]        
Dr. Gladman left Kamloops and moved to Alberta. Dr. Waller became Mrs.
Schmidt’s family doctor in approximately March of 2008. Dr. Waller first
examined Mrs. Schmidt on March 20, 2008.

[42]        
On July 6, 2009, Dr. Waller recommended that Mrs. Schmidt become
“…more active and start swimming regularly.” On December 9, 2009, Dr. Waller
noted that Mrs. Schmidt was participating in “…physiotherapy and yoga but had
not started any more strenuous exercise such as swimming” as previously
recommended.

[43]        
Dr. Waller’s evidence is in a report dated February 12, 2010. As at
February 12, 2010, Dr. Waller stated that Mrs. Schmidt’s headaches had
significantly improved. Dr. Waller concludes that Mrs. Schmidt would be able to
“… work in the competitive market in the near future.”

[44]        
On March 3, 2010, Dr. Waller noted that Mrs. Schmidt reported ongoing
symptoms, and she was no longer taking any regular medication other than
anti-anxiety medication. She stated that she was able to do yard work and
manage all the activities of daily living. However, he noted:

She remained very symptom focused
throughout the consultation and was very analytical of her symptoms on an hour
to hour basis. Some activities such as yard work would cause discomfort in her
thoracic spine, which was maximal between her shoulder blades during flare-ups.

[45]        
Dr. Waller, in summary, concludes:

Presently, she maintains ongoing
therapy with physiotherapy and massage. I think it would be extremely
beneficial if she would engage in some regular sustained aerobic activity such
as swimming. Unfortunately she has not managed this to date. Mrs. Schmidt
remains very symptom directed and I think she would progress more quickly with
these types of activity.

Dr. Raghavan

[46]        
Dr. Raghavan is a specialist in physical medicine and rehabilitation.

[47]        
Mrs. Schmidt was referred to Dr. Raghavan by her family doctor, Dr.
Gladman. Dr. Raghavan saw Mrs. Schmidt eight times between July 23, 2007 and
December 30, 2009.

[48]        
A letter dated April 6, 2010 contained Dr. Raghavan’s evidence. When
Mrs. Schmidt was first seen by Dr. Raghavan, she complained of lower neck pain,
upper thoracic area pain, and headaches, with the pain radiating to both upper
extremities.

[49]        
On a physical examination of Mrs. Schmidt, Dr. Raghavan found slight
tenderness of her sub occipital area and interscapular areas. Dr. Raghavan
diagnosed Mrs. Schmidt with having chronic mechanical neck and mid-back pain.

[50]        
On Dr. Raghavan’s recommendation, Mrs. Schmidt received a right-sided
facet joint injection. This provided no relief to Mrs. Schmidt.

[51]        
By December 2008, Mrs. Schmidt reported to Dr. Raghavan that her
headaches were increasing and her symptoms unchanged.

[52]        
In December of 2008, Dr. Raghavan noted that on examination he found
trigger points in multiple muscles, including her right temporalis muscle.

[53]        
When Dr. Raghavan last saw Mrs. Schmidt on December 30, 2009, she
reported a significant improvement of her overall pain such that she was able
to reduce her medications and stop some of them completely.

[54]        
Dr. Raghavan describes Mrs. Schmidt’s condition as follows:

Extensive soft tissue tenderness
on palpation also raised the possibility that the pain was at least partly
driven centrally. Her partial response to antineuropathic agents like
gabapentin and pregabalin to some extent confirmed this. This complex clinical
picture is not uncommon in patients with chronic axial pain, although the pain
may initially appear to be purely muscular or musculocutaneous in origin.
Appearance of trigger points may be a secondary phenomenon, as also the central
neuropathic pain features. Fear avoidance behaviour and poor coping strategies
also complicate the clinical picture of chronic pain. Therefore, chronic pain
is not seen as an isolated peripheral or soft tissue injury but as a more
complex bio psychosocial phenomenon. Ideally, therefore, the treatment for this
problem should be multidisciplinary, attempting to target all these components
of the pain.

[55]        
Dr. Raghavan’s prognosis is that Mrs. Schmidt had a positive response to
the occipital blocks that were administered by Dr. Lau. He predicts that
chronic pain symptoms have a tendency to “wax and wane”. He opines that it is
too early to assume whether Mrs. Schmidt’s positive response will be permanent,
although he expects her to continue to improve.

[56]        
Dr. Raghavan is of the opinion that Mrs. Schmidt will probably require
trigger point injections and occipital blocks on a periodic basis in the
foreseeable future. He also anticipates that she may need to receive periodic
pain medications from time to time. Dr. Raghavan concludes that so long as Mrs.
Schmidt continues to maintain the improvement that she had when he saw her in
December of 2009, with no significant flare-ups, he believes that Mrs. Schmidt
should be able to progress to full-time employment over a period of six months
to one year.

Dr. Lau

[57]        
Dr. Lau saw Mrs. Schmidt at the request of her counsel. Dr. Lau is an
anaesthesiologist. Her subspecialty is in pain management.

[58]        
Dr. Lau examined Mrs. Schmidt on March 4, 2009. At that time, Mrs.
Schmidt’s major complaint was her upper back. At that time, she described the
pain in her upper back as a constant deep ache with throbbing and sharp features
across the trapezius muscles.

[59]        
Dr. Lau saw Mrs. Schmidt on October 1, 2009. Her main complaint then was
a persistent headache. These headaches started at the base of the right side of
the skull on both sides of the front of her head and were throbbing in nature
as if it was going to explode. Mrs. Schmidt described to Dr. Lau two weeks of
nausea and retching in the summer months that accompanied these headaches. 
(Mrs. Schmidt did not give this evidence at trial.)

[60]        
At Dr. Lau’s first examination of Mrs. Schmidt, she found that Mrs.
Schmidt had full range of motion in the cervical spine, but found in the
cervical spine mild tenderness at the base of the neck. By palpating the
trapezius muscles, she found them painful. She also found numerous trigger
points and painful muscle bands along the trapezius muscles and medial borders
of the scapula. Dr. Lau concluded these were consistent with her complaints.
Dr. Lau diagnosed Mrs. Schmidt with myofacial pain syndrome relating to trapezius
muscles and thoracic facet joint dysfunction, cervicogenic headaches due to
facet joint or occipital nerve involvement, medication side effects of Pregabalin,
overuse of passive coping strategies and high catastrophizing tendencies.

[61]        
At that time, Dr. Lau concluded that an occipital nerve block would have
possible diagnostic and therapeutic benefit. Dr. Lau thought the nerve block
would determine whether Mrs. Schmidt’s headaches were cervicogenic in origin or
perhaps muscle tension headaches.

[62]        
Dr. Lau recommended that she reduce and discontinue Pregabalin due to
its negative side effects. As a result of certain tests administered to Mrs.
Schmidt, Dr. Lau concluded that Mrs. Schmidt’s catastrophizing score is much
greater than average. This means that Mrs. Schmidt has a tendency to believe
that something is far worse than it actually is, causing self-pity and negative
belief about a situation and feeling hopeless.

[63]        
Dr. Lau states that Mrs. Schmidt “has a high probability of returning to
pre-accident work responsibilities”.

[64]        
Dr. Lau also recommends a “structured regular physical activity program
aimed at addressing strength, mobility and aerobic capacity”.

[65]        
At Dr. Lau’s second assessment of Mrs. Schmidt on October 1, 2009, she
found that Mrs. Schmidt’s cervical spine rotation was limited to the right side
as to rotation and flexion. She found on palpation trigger points in the same
area as she did when she first assessed Mrs. Schmidt. Dr. Lau concluded that
Mrs. Schmidt’s headaches were cervicogenic in origin and possibly muscle
tension headaches. At this assessment, Mrs. Schmidt received occipital nerve
blocks. The results, reported by Mrs. Schmidt to Dr. Lau, were good and her
headaches lessened. Dr. Lau recommended that she receive further injections from
Dr. Kowbel of Kamloops.

[66]        
Dr. Lau concluded, despite Mrs. Schmidt’s perception of lack of medical
progress relating to her injuries, she found that between the two visits with
Mrs. Schmidt there was considerable progress in most aspects of Mrs. Schmidt’s
life. Dr. Lau re-confirmed her previous opinion that Mrs. Schmidt could return
to her pre-accident employment and activities. Dr. Lau once again stressed the
need for Mrs. Schmidt to engage in a physical activity program. Dr. Lau
confirms that Mrs. Schmidt needs to learn to manage her pain and subsequent
flare-ups. Dr. Lau emphasised that Mrs. Schmidt should not become dependent on
“external modalities.” This is a reference to physiotherapy and massage
therapy.

[67]        
Mr. Hawkins had Mrs. Schmidt examined by Dr. Boyce and Dr. McDougall.

Dr. McDougall

[68]        
Dr. McDougall is a medical doctor having a specialty in occupational
medicine.

[69]        
Dr. McDougall assessed Mrs. Schmidt on February 6, 2007. His evidence is
contained in a report. Mrs. Schmidt’s complaints to Dr. McDougall were soreness
of the upper lumbar spine and constant headaches. At that time, she told Dr.
McDougall that she was not becoming better and that she believed that she would
not return to her pre-accident condition.

[70]        
Dr. McDougall found that Mrs. Schmidt’s cervical spine had full range of
motion.

[71]        
Dr. McDougall concludes that Mrs. Schmidt was suffering from a mild mood
disorder and that her initial complaints are consistent “for a Whiplash
Associated Disorder level II injury.” He also concludes that Mrs. Schmidt has
suffered “… an upper dorsal spine musculoligamentous sprain grade 1.” As a
result of the whiplash, Dr. McDougall concludes that Mrs. Schmidt suffers from
cervicogenic headaches. He also concludes that the headaches are muscle tension
headaches which causes Mrs. Schmidt’s mood disorder and anxiety. Dr. McDougall
states:

The prognosis however, for this
patient is very positive. This is an otherwise healthy young lady. There is no
evidence that there is any other medical barrier for this patient to not
convalesce. This patient is not at risk to herself or others in her normal
daily activities including those of sedentary office work. This patient is best
advised to maintain an active physical exercise program.

[72]        
Dr. McDougall stated that he thought it was unwise for Mrs. Schmidt to
give up her employment.

[73]        
Dr. McDougall recommended to Mrs. Schmidt that she use minor drugs such
as Advil and Motrin. He recommended that she involve herself in an exercise
program and educate herself in ergonomic posturing in her daily activities and
work.

Dr. Boyce

[74]        
Dr. Boyce is a practising orthopaedic surgeon. His evidence is in a
report dated July 20, 2009.

[75]        
Dr. Boyce examined Mrs. Schmidt. On palpation, Dr. Boyce noted
tenderness in the trapezius muscles.

[76]        
Dr. Boyce concluded that Mrs. Schmidt suffered soft tissue injuries
which he would expect to heal in six to nine months. He is of the opinion that
Mrs. Schmidt should have a full recovery with a fitness program, and that she
establish such a program whose goals would be for conditioning and endurance.

[77]        
Dr. Boyce was aware that Mrs. Schmidt was not participating in such a
program. Dr. Boyce strongly recommended that Mrs. Schmidt cease relying on
outside modules such as physiotherapy, massage therapy and chiropractic care,
stating that these treatments are more appropriate for an acute setting.

Summary of the Medical Evidence

[78]        
Drs. Waller, Raghavan and Lau, for the most part, agree in their
diagnosis and prognosis. Drs. Raghavan and Lau expect Mrs. Schmidt’s injuries
to “wax and wane” over her lifetime. Drs. McDougall and Boyce are much more
optimistic. For the most part, the doctors agree on the nature of Mrs.
Schmidt’s injuries.

[79]        
They all agree that Mrs. Schmidt should participate in a gym
conditioning program. This was initially recommended by Dr. McDougall on
February 6, 2007. Dr. Lau discouraged dependency on outside modules in place of
an aerobic program, as did Dr. Boyce. All the doctors were of the opinion that
Mrs. Schmidt could return to full-time employment.

Mr. Howick

[80]        
Mr. Howick is a physiotherapist with over 20 years experience. Parts of
Mr. Howick’s report dated April 6, 2010 were found inadmissible by me.

[81]        
Mr. Howick first assessed Mrs. Schmidt on February 14, 2008. After that
date, he saw Mrs. Schmidt 72 times.

[82]        
On examination of Mrs. Schmidt, Mr. Howick found her cervical range of
motion within the normal limits. He found that Mrs. Schmidt suffered pain in
her neck at the end of the range of flexion and left rotation. He found that:

… facet joint mobility was
restricted in the mid thoracic spine and upper cervical spine.

[83]        
Mr. Howick treated Mrs. Schmidt from February 14, 2008 until March 31,
2010.

[84]        
Mr. Howick recommended that Mrs. Schmidt continue with massage and
physiotherapy treatment, eight to 16 sessions each, and an exercise program to
include yoga. Mr. Howick’s report states that he believes Mrs. Schmidt is
involved in an exercise program.

Carol Burden

[85]        
Ms. Burden is a registered occupational therapist and work capacity
evaluator. Ms. Burden gave evidence at trial.

[86]        
Ms. Burden provided two reports: one is a Functional Capacity Report dated
July 15, 2009 and the other a Future Care Report dated April 12, 2010.

[87]        
In her Functional Capacity Report, Ms. Burden, fairly summarizes the
medical evidence before the court. Ms. Burden is aware that Mrs. Schmidt “can
do more at times than she currently states or perceives. While her subjective
reports should not be disregarded, they should be considered within the context
of such reliability findings.”

[88]        
Ms. Burden’s Functional Capacity Report and her Future Care Report rely
on evidence that was not before the court. Examples of this are found in Ms.
Burden’s Functional Capacity Report where she writes that Mrs. Schmidt states
that the most difficult part of the job in her husband’s business is moving the
camera around from one location to another. Further, I heard no evidence from
Mrs. Schmidt that she was unable to keyboard. This statement led Ms. Burden to
conclude that perhaps Mrs. Schmidt should use Dragon Dictate.

[89]        
In Ms. Burden’s Future Care Report, she makes reference to facts
regarding Mrs. Schmidt’s personal care and dressing, doing laundry, food
preparation, homemaking tools, financial management, family and childcare,
comments on outdoor management, communication, care of family pets and travel
and transportation, most of which was not evidence before me.

[90]        
Ms. Burden’s summary in her Future Care Report refers to Mrs. Schmidt
biking. I heard no evidence from Mrs. Schmidt that she biked.

[91]        
In considering Ms. Burden’s reports, there is no baseline in which to
compare Mrs. Schmidt’s fitness and ability before the accident as assessed by
Ms. Burden after the accident.

Non-Pecuniary Damages

[92]        
The purpose of non-pecuniary damages is to compensate Mrs. Schmidt for
pain and suffering, loss of enjoyment of life and loss of amenities. The amount
of the damages is not just how serious the injuries are, but the amount of the
award should improve the victim’s particular situation. The award must meet the
situation of each individual case and its own unique facts.

[93]        
Fairness is measured by comparing this case with other similar cases. Those
cases are only a guide.

[94]        
In Stapley v. Hejslet, 2006 BCCA 34, the court set out a
non-exhaustive list of factors that ought to be considered when assessing
non-pecuniary damages.

[95]        
The factors that I believe ought to influence my award for non-pecuniary
damages to Mrs. Schmidt are:

·      
age;

·      
nature of her injuries;

·      
severity and duration of pain;

·      
disability, if any;

·      
emotional impact;

·      
affect on family and social relationships;

·      
impairment of physical and mental abilities; and

·      
lifestyle changes.

[96]        
At the time of trial, Mrs. Schmidt was age 39. The accident resulted in
causing injuries to Mrs. Schmidt leaving her with a stiff and painful neck,
pain in her upper back and, in particular, between the shoulder blades and
headaches.

[97]        
Mrs. Schmidt believes that her condition was not getting any better
causing Mrs. Schmidt to have some minor depression.

[98]        
It impacted her social life and some of her activities. At trial, for
the most part, she was back to her regular activities.

[99]        
As a result of her injuries, she required some assistance from family
members and neighbours to meet some of her household and gardening
responsibilities.

[100]     Mrs.
Schmidt claimed that her headaches existed all of the time, never stopping, and
did not get better until approximately December of 2009, after receiving
treatment from Dr. Lau.

[101]     In
cross-examination, Mrs. Schmidt acknowledged that she made certain comments to
her doctors. On November 24, 2005, Mrs. Schmidt acknowledged that she told Dr.
Gladman she had experienced slight improvement. On January 11, 2006, she told
Dr. Gladman that she was having gradual improvement and not having headaches
every day. On June 21, 2006, Mrs. Schmidt acknowledged that she told Dr.
Gladman “headaches ok, except three to four days per month”. On December 20,
2006, she told Dr. Gladman that she was “doing better.”

[102]     On May 9,
2007, Mrs. Schmidt told Dr. Cheung (a locum for Dr. Gladman) that the headaches
were “fairly mild.”

[103]     Shortly
after the accident, Dr. Gladman referred Mrs. Schmidt to Mr. Gifford, a
physiotherapist. Mr. Gifford works in the same physiotherapy clinic as Mr.
Howick. Her first appointment with Mr. Gifford was September 19, 2005. On
January 25, 2006, Mrs. Schmidt acknowledged that she told Mr. Gifford that her
headaches were “fluctuating low grade headaches.” She acknowledged that on February
1, 2006, she described her headaches to Mr. Gifford as “low grade.”

[104]     Mrs.
Schmidt’s evidence is that her injuries did not improve while taking
physiotherapy with Mr. Howick and participating in yoga in the years 2008 and
2009.

[105]     She
acknowledged that she did not describe her headaches as a number out of ten
(ten being the most severe) until she started to see Carol Burden.

[106]     Mrs.
Schmidt was referred to Mr. Keith Bracken, a physiotherapist specializing in
sports medicine. On September 6, 2006, Mrs. Schmidt acknowledged that she told
Mr. Bracken that she was “feeling better today”. On September 14, 2006, Mrs.
Schmidt acknowledged that today she “feels better.” On September 20, 2006, was
“feeling better than the last day” (September 14, 2006).  On October 16, 2006,
May 17 and June 4, 2007, she told Mr. Bracken she was feeling better.

[107]     On
February 4, 2008, she told Dr. Raghaven that her pain symptoms were better by
10% to 20% than a few months ago. At that time, Dr. Raghaven endorsed her
considering to return to work.

[108]     Mrs.
Schmidt’s comments to Dr. Waller are acknowledged as true. In Dr. Waller’s
report in which he reports that her reported symptoms were improved on May 20,
2008 and October 21, 2008, and that on March 11, 2009, her headaches had
lessened.

[109]     I have
concluded that despite Mrs. Schmidt’s evidence, which is that her headaches
were constant and that she did not start to get better in 2009 – she in fact
experienced improvement and her headaches lessened. This was documented by her
healthcare providers and acknowledged by her in her statements to them, and
that they were true.

[110]     As Mrs.
Schmidt was referred to each doctor or physiotherapist the pain and symptoms
she described were as if she had not improved at all. The expert medical
evidence must be viewed with this in mind.

[111]     Mrs.
Schmidt, since the accident, received 72 physiotherapy treatments over a period
of two years from Mr. Howick. Had these comments been made by her to her doctors
and physiotherapists, such treatments would unlikely to have been prescribed.  It
makes no sense that Mrs. Schmidt would continue such treatments if they were
not improving her condition.

[112]     The
plaintiff relies on the following cases to support her claim for non-pecuniary
damages:

Testa v. Mallison, 2009 BCSC 957 (Date of
Accident: March 23, 2004)

[113]     The
plaintiff, a businesswoman, was 50 years of age who suffered neck pain that
radiated from the base of her skull through to her shoulders. She was diagnosed
with cervicogenic headaches with migraine features, whiplash, and myofacial
pain syndrome within the neck and shoulder girdle region with painful trigger
points.

[114]      Prior to
the accident, the plaintiff exercised daily on her home gym. The court
concluded she experienced substantial decline in her ability to work and both
her leisure and social life activities. It was not expected that she would have
full recovery.

[115]     The
plaintiff was awarded $75,000.00 for non-pecuniary damages.

Schroeder v. Shaw, 2008 BCSC 1757 (Date
of Accident: August 25, 2003)

[116]     The
plaintiff was a 37-year old man who suffered neck, back and hip injuries with
headaches. He could no longer work as a landscaper, which required him to drive
and to operate and maintain heavy equipment. He commenced re-training in a
management diploma program in preparation for an occupation that did not
require heavy physical labour.

[117]     The
plaintiff participated in a number of sports with his children. He participated
equally with his wife in the home keeping activities. He did extensive home
maintenance and construction and automotive repair.

[118]     At the
time of trial, his neck injury was the most significant injury; he had limited
range of motion.

[119]     Over the years
his injuries improved significantly because he controlled his activities. It
was determined that he had a partial disability. Non-pecuniary damages were
assessed at $75,000.00.

Gold v. Joe, 2008 BCSC 865 (Date of
Accident: June 12, 2004)

[120]     A 56-year
old male millwright suffered injuries to his neck causing pain and pain to his
upper and lower back. His range of motion to his neck, three years after the
accident, was limited. He was away from work for approximately three months.

[121]     The
plaintiff had pre-degenerative changes in his neck which were asymptomatic. The
plaintiff had other health issues unrelated to the accident. He needed
physiotherapy in order to maintain range of motion in his neck and to keep him
working. He developed chronic neck and back pain.

[122]     The
plaintiff was awarded non-pecuniary damages assessed at $80,000.00.

Ashmore v. Banicevic, 2009 BCSC 211
(Date of Accident: May 23, 2003)

[123]     The
plaintiff was a 38-year old male who held a Bachelor’s degree in commerce. He
was employed by a large international electronics company. He also had outside work
in film production. The injuries occurred as a result of the car in which he
was riding was rear-ended.

[124]     He
suffered injuries to his right jaw, front and back neck and upper right back. He
had headaches which at the time of trial had decreased. The headaches were
described as low grade, and would escalate if he was very active.

[125]     Since the
accident he married and he and his wife had two children. As a result of the
symptoms and in particular the headaches, the plaintiff was required to rest in
the middle of the day, requiring him to work late. The symptoms also prevented
him from pursuing the sports that he used to participate in and reducing the
energy he had for work outside his regular employment.

[126]     The court
assessed the plaintiff’s damages at $80,000.00.

Eccleston v. Dresen, 2009 BCSC 332 (Date
of Accident: August 3, 2002)

[127]     The
plaintiff suffered moderate soft tissue injuries to her neck and upper back
which developed into chronic pain which caused depression. The court concluded
her condition to be permanent. The court assessed non-pecuniary damages at
$120,000.00.

Shapiro v. Dailey, 2010 BCSC 770 (Date
of Accident: March 2, 2005)

[128]     The
plaintiff was diagnosed with a whiplash injury with moderate to severe myofacial
pain syndrome, post-traumatic fibromyalgia syndrome, mood disorder, chronic
pain and mild cognitive disorder.

[129]     The judge
concluded the plaintiff had “a profound change in every aspect of her life”.

[130]     The court
assessed non-pecuniary damages at $110,000.00. In that case, the court assessed
$900,000.00 for loss of capacity to earn income.

[131]     The
defendant relies on the following cases to guide me in the assessment of the
plaintiff’s non-pecuniary damages:

Krogh v. Swann, 2005 BCSC 761 (Date of
Accident: September 11, 2000)

[132]     The
plaintiff, at the time of the motor vehicle accident, was 20 and at the time of
trial was age 25. The plaintiff was an exchange student in Canada.

[133]     The
plaintiff experienced neck pain right after being rear-ended in a motor vehicle
accident, resulting in headaches which occurred daily for approximately one
month.

[134]     He was
physically active before the accident and continued with those activities after
the accident. His injuries did not delay his education.

[135]     He was
diagnosed with cervical strain-type injuries which were healing with myofacial
pain syndrome described as chronic in nature. He had to the left side of his
neck, limited range of movement.

[136]     Activities
did not hurt his neck and were described as “benign and non-progressive”. The main
problem was chronic pain. The court assessed non-pecuniary damages at
$30,000.00.

Ching v. McCabe et al, 2006 BCSC 1589
(Date of Accident: August 22, 2002)

[137]     The
plaintiff was a 43-year old woman who held a Bachelor of Arts in economics
whose occupation was an accredited financial planner.

[138]     Following
a motor vehicle accident, the plaintiff suffered from headaches almost
immediately, developed stiffness in the neck down to her back and pain in her
shoulders. She had difficulty swallowing. She reduced her hours of work. She
noted no improvement until three and a half years after the accident. Her
injuries were not considered debilitating, and described her impairment as “off
and on.”  Non-pecuniary damages were assessed at $50,000.00.

Salvatierra v. Vancouver (City), 2008
BCSC 537 (Date of Accident: November 5, 2005)

[139]     The
plaintiff was a 41-year old woman who suffered soft tissue injuries to the
upper portion of her body, including her neck, shoulder and arm. She claimed it
prevented her from working full-time. The plaintiff’s work was contract work
for limited periods. She held a Master’s degree in anthropology. The court had
difficulty with her credibility in reporting her injuries. The court assessed
non-pecuniary damages at $45,000.00.

Harris v. Zabaras, 2010 BCSC 97 (Date of
Accident: January 28, 2006)

[140]     The male
plaintiff aged 34 was injured in a motor vehicle accident when his truck was
struck from behind by another pickup truck. He was a car sales manager for a
dealership. He had a residential care attendant certificate and worked for five
years in hospital as a nurse’s aide. Before the accident, the plaintiff was an
“avid and energetic handyman performing a variety of home and yard maintenance
and repair tasks for himself, friends and family members.”  He renovated two
homes, one of which was his present family home. He had two back injuries while
working as a nurse’s aide and at one time had a period of depression. At the
time of trial there had been a reduction in the frequency of the plaintiff’s
headaches. He was subject to neck and left arm pain whenever the plaintiff
undertook strenuous physical activities. His doctors concluded that these
symptoms are likely to continue. The court assessed his non-pecuniary damages
at $50,000.00.

[141]     I assess
Mrs. Schmidt’s non-pecuniary damages at $45,000.00.

Mitigation

[142]     Mr.
Hawkins argues that Mrs. Schmidt has failed to mitigate her damages in failing
to take the advice of her doctors and healthcare providers by not involving
herself in a properly structured exercise and strengthening program. The onus
is on Ms. Hawkins to prove this on a balance of probabilities. This advice was
first given to Mrs. Schmidt in 2007 by Dr. McDougall, followed by the same
advice from Drs. Gladman, Waller, Boyce, Raghaven and Lau. Mrs. Schmidt
resisted this advice until she took out a six-month membership at the YMCA-YWCA
just before the trial, which was not used up to its expiry date. I asked Mrs.
Schmidt if she could swim. She stated she could. She volunteered that she did
not like swimming or going to the gym.

[143]     All the
physicians who examined or treated Mrs. Schmidt recommended that Mrs. Schmidt
involve herself in swim or involve herself in a gym program or both.

[144]     Dr.Lau in
her report of March 23, 2009 stated that by involving herself in a structured
regular activity program was aimed “at addressing strength, mobility and
aerobic capacity”.  Dr. Lau concluded this would increase Mrs. Schmidt’s
self-confidence through education on “the nature of persistent pain in
particular myofacial pain.

[145]    
Dr. Lau in her report dated December 4, 2009 stated:

All treatments suggested above
are meant to facilitate her participation in a structured graded activity
program that ultimately she should and would continue in her home and work
environments.

[146]     Mrs.
Schmidt has failed to mitigate her damages by not following the advice of all
of the doctors who examined her and gave opinions. I assess her failure by
reducing her non-pecuniary damages by 15%.

Past Wage Loss

[147]     Mrs.
Schmidt must prove, on a balance of probabilities, but for the accident she
would have continued to work for the dealership. Mrs. Schmidt argues that her
job aggravated her neck and upper back, causing pain. This, Mrs. Schmidt
argues, required her to seek part-time employment not available to her at the
dealership. Mrs. Schmidt argues that part-time work would permit her to allow
more time to focus on a rehabilitation program and heal. Mrs. Schmidt argues
that she quit her part-time employment with Spring Aviation because her injuries
prevented her from doing the job, and the job she took was not the job she
expected to perform.

[148]     Mr.
Hawkins argues that the plaintiff did not quit her full-time or part-time job
due to the accident, but rather, Mrs. Schmidt wanted to spend more time with her
children, and the income needed by the family was met when Mr. Schmidt took
employment as an electrician.

[149]     Mr.
Hawkins argues that Mrs. Schmidt is capable of full-time employment as she is
now working for her husband’s home-based computer business performing clerical
activities both within and outside the Schmidt home.

[150]     Mrs.
Schmidt started work with the dealership on August 20, 1990, performing duties
such as answering the telephone, filing and collecting accounts. Her hours of
work were Monday to Friday, 8 a.m. to 5 p.m.

[151]     After a
year, she was moved “upstairs” to the office. She initially looked after
accounts payable and, during the lunch hour, answered the switchboard. As the
years progressed, Mrs. Schmidt’s duties changed and increased. As of the date
she quit her job with the dealership, Mrs. Schmidt was the assistant to the
comptroller, Ms. Atherton. Mrs. Schmidt learned and assumed a number of
responsibilities at the dealership. Along with others, Mrs. Schmidt had cheque
signing authority. She had responsibility for the office when Ms. Atherton was
away, and performed some of Ms. Atherton’s duties. Mrs. Schmidt’s position at
the dealership was clerical with responsibilities. There were no physical
duties.

[152]     Next to
Ms. Atherton, Mrs. Schmidt was employed in the office for the longest. At the
time that Mrs. Schmidt quit her employment at the dealership, she was earning
$28,200.00 per annum. The dealership provided her with medical and dental
benefits, disability and life insurance, and it made contributions to her RRSP.

[153]     In June of
2005, the dealership changed ownership. At this time, Mrs. Schmidt was on
maternity leave. Another woman replaced Mrs. Schmidt at the dealership during
her maternity leave.

[154]     On May 24,
2005, Mrs. Schmidt consulted her doctor, Dr. Gladman, as she became anxious
about returning to work with the new owners at the dealership.  Dr. Gladman
prescribed anti-anxiety medication to use as she needed. Upon her return to
work, Mrs. Schmidt had a blow up at work with the woman who had replaced her.
They had to work side-by-side. Mrs. Schmidt testified that this woman did not
like her. Mrs. Schmidt considered leaving her employment. She consulted Dr.
Gladman, who prescribed anti-anxiety medication to use as needed. By August
2005, Mrs. Schmidt’s replacement was no longer working for the dealership.

[155]     Other than
the week to which I have referred, Mrs. Schmidt took no other time off work
relating to the injuries she suffered from the motor vehicle accident. Her
superior, Ms. Atherton, was aware that Mrs. Schmidt was involved in a car
accident, and that she injured her back. Ms. Atherton was aware from
time-to-time that Mrs. Schmidt went for medical treatment for the injuries that
Mrs. Schmidt suffered in the accident.

[156]     Mrs.
Schmidt did not ask Ms. Atherton to modify or change her duties at the
dealership, or to accommodate the effects she was feeling from the accident,
other than Mrs. Schmidt asked for a different office chair. This was resolved
by trading chairs with another employee. Ms. Atherton stated that the nature of
Mrs. Schmidt’s job required her to be up and down from her desk in the office.

[157]     Ms.
Atherton had daily contact with Mrs. Schmidt and often one-on-one with her. Mrs.
Schmidt and Ms. Atherton socialized together by having lunch and coffee
together. They were not in each other’s homes. Ms. Atherton was familiar with
her children. Ms. Atherton described Mrs. Schmidt as a competent and good
employee.

[158]     Mrs.
Schmidt said that as a result of her injuries she was tired and sore, and could
not give 100% to her job. She said it was a tough decision to leave her job at
the dealership. Mrs. Schmidt’s evidence is that she was not ready to go back to
work after the accident, but felt obliged to do so as her boss was to start
holidays.

[159]     Ms.
Atherton described the office that she and Mrs. Schmidt and other employees
worked as a small office. Mrs. Schmidt’s evidence is that after the accident
and in order to accommodate her injuries, she would go into the bathroom at the
dealership and lie down on the floor of the bathroom. She stated that she would
frequently leave her desk to relieve her discomfort and would use ice packs at
her desk or in the conference room of the dealership. Three employees from the
dealership, including Ms. Atherton, gave evidence. They gave no evidence as to
observing these activities.

[160]     The
employees who had worked in the dealership office with Mrs. Schmidt and who gave
evidence were Ms. Atherton, Ms. Roemer and Ms. Ducharme. Ms. Roemer and Ms.
Ducharme also socialized with Mrs. Schmidt at the office. They talked about
family and they all had seen Mrs. Schmidt’s children at the dealership.

[161]     Ms.
Ducharme, who worked for the dealership from 2004 to 2006, stated that she left
her employment with the dealership in March of 2006. She stated that she was
aware of Mrs. Schmidt being in a car accident and what occurred in the
accident. She believed that Mrs. Schmidt, as a result of the accident, suffered
neck injuries and headaches. She observed no difference in Mrs. Schmidt’s performance
of her job after the accident.

[162]     After Mrs.
Schmidt quit her job at the dealership and quit her job at Spring Aviation, Ms.
Ducharme had a conversation with Mrs. Schmidt. She told Ms. Ducharme that her
husband had gone up north to work and that she had quit her part-time work so
she could spend more time with her children. She also relayed to Ms. Ducharme
that she was working for the family business which provided the family with
more family income. She told Ms. Ducharme that at that time she was filming a
consignment store for the business.

[163]     Ms. Roemer
worked for the dealership for approximately four or five years while Mrs.
Schmidt was employed at the dealership. She continued to work for the
dealership after Mrs. Schmidt quit her job. Ms. Roemer quit her job at the
dealership in October of 2006. Ms. Roemer sat opposite to Mrs. Schmidt in the
office. Ms. Roemer was aware of the accident and how it happened. Ms. Roemer
stated that after the accident she observed no change in how Mrs. Schmidt
performed her job at the dealership, other than she observed that Mrs. Schmidt
got up and moved around more.

[164]     Ms. Roemer
stated that in a conversation with Mrs. Schmidt, Mrs. Schmidt told her she had
found part-time employment so that she could spend more time with her family.
Ms. Roemer was aware that Mrs. Schmidt’s husband worked for a computer company
and that he quit his job to work as an electrician.

[165]     Ms.
Atherton stated that Mrs. Schmidt’s letter of resignation dated April 4, 2006
came “out of the blue.” Mrs. Schmidt did not speak to Ms. Atherton before
submitting her letter of resignation. Ms. Atherton asked Mrs. Schmidt why she
was leaving. Mrs. Schmidt told her she wanted to work less hours; that she had
not received a raise for some time; she wished to spend more time with her
family.

[166]     Ms.
Atherton spoke to Mrs. Schmidt approximately six months after leaving her
employment at Spring Aviation. Mrs. Schmidt advised Ms. Atherton that her job
at Spring Aviation had not worked out.

[167]     Before
quitting her job at the dealership, Mrs. Schmidt secured a job at Spring
Aviation. Mrs. Schmidt expected that she would be sharing the job with another
employee at Spring Aviation, working three days per week, four hours per day.
Mrs. Schmidt’s responsibilities at Spring Aviation were to deal with the
payables, receivables, payroll journal and filing. She also assisted the office
manager. Initially she was paid $13.00 per hour with no benefits. In November
of 2006, Mrs. Schmidt quit her job with Spring Aviation and, at that time, she was
earning $15.00 per hour.

[168]     Mrs.
Schmidt stated that she left Spring Aviation because she could not do the job
which included lifting parts. She was also expected to cover another person’s
job in the office, which meant longer hours of work.

[169]     Mrs.
Schmidt did not talk to the owner or anyone else at Spring Aviation about her
inability to do the job. After leaving Spring Aviation, Mrs. Schmidt applied
for and received medical employment insurance for a period of 15 weeks.

[170]     Mrs.
Schmidt, after leaving her job at Spring Aviation, started to take on more
responsibility for her husband’s home-based business. Since the business
started, Mrs. Schmidt has always done the bookkeeping. In 2007, Mrs. Schmidt’s
sister-in-law, Michelle Pehota, was involved in a motor vehicle accident. Since
that time, Mrs. Schmidt took over the responsibilities of her sister-in-law,
except her sister-in-law continues to do photo shoots of the houses to be
placed on the website.

[171]     Since Ms.
Pehota’s motor vehicle accident in 2007, Mrs. Schmidt started to do more of the
editing and uploading of the photographs to the website, and updating the sales
information such as house price changes. Except for the photo shoots that Ms.
Pehota does, Mrs. Schmidt does all those duties, including receiving all
telephone calls from the realtors on the office telephone in the Schmidt home.
Ms. Pehota continues to be paid for her efforts which are now the photo shoots
she actually does. Mrs. Schmidt is not paid. Mrs. Schmidt stated that not being
paid allowed further investment in the business.

[172]     Mrs.
Schmidt started to do photo shoots on March 11, 2008, and did the next one on
May 15, 2008. Thereafter, she did them irregularly with Ms. Pehota doing the
vast majority of them until January of 2009, when Mrs. Schmidt’s involvement
with photo shoots increased substantially. In 2009 from January to and
including December, Mrs. Schmidt did 76 photo shoots; Ms. Pehota did 55.  In
the year 2010, from January up to April 18, Mrs. Schmidt did 24 photo shoots;
Ms. Pehota performed 26.

[173]     ePublishing,
although owned by Mr. Schmidt, has some benefits for the Schmidts. They are
permitted certain write-offs for automobile expenses, mortgage interest
expenses and home utilities. Mrs. Schmidt does all the month-end invoices and
deals with all financial matters relating to the business.

[174]     The total gross
family income of Tracey Schmidt and Darryl Schmidt for the following years are:

[175]     Mr.
Schmidt works full-time as an electrician and is responsible for the technical
aspects of the home-based computer business.

[176]     Mr.
Schmidt denied that Mrs. Schmidt quit her job at the dealership so she could
spend more time with the children. He denied that as between he and Mrs.
Schmidt that spending more time at home with the children did not come up in
their discussions. Pressed in cross-examination, he did indicate that it came
up in discussion. Mr. Schmidt also stated that Mrs. Schmidt leaving Spring Aviation
to care for the children did not enter their discussions. Mr. Schmidt believed
that when Mrs. Schmidt went to work for Spring Aviation she would be only
working one day per week.

[177]     Mrs.
Schmidt, since quitting her job with Spring Aviation, has made no attempts to
obtain paid employment.

[178]     I have
concluded that Mrs. Schmidt has not suffered a past loss of income. She quit
her job at the dealership because she wanted to spend more time with her
children, and this could be attained by taking part-time employment. Further,
the job at Spring Aviation was not terminated by her as a result of her
injuries. The job at Spring Aviation was not as part-time as she wanted it to
be as the job required her to work more hours than she had anticipated.

[179]     By the
fall of 2005, the family income would and did exceed the family income when
Mrs. Schmidt was employed by the dealership, and it continued to rise. Mrs.
Schmidt is working for her husband’s business, ePublishing, so that it can be
expanded and become more profitable. The duties that Mrs. Schmidt is performing
for ePublishing are clerical duties, similar to the duties that she performed
for the dealership and Spring Aviation. In addition to that, her job with
ePublishing is in some ways physical as she is to attend homes and film them.
This requires her to drive a car to the various residences and then film these
residences.

[180]     I make no
award for past loss of income.

Loss of Future Earning Capacity

[181]    
Future earning capacity is considered as an asset. The general question
is whether its value has been lost or impaired. The considerations in valuing
this asset is referred to in Brown v. Golaiy, [1985] B.C.J. No. 31, 26
B.C.L.R. (3d) 353 by Mr. Justice Finch quoting Mr. Justice Dickson in Andrews
et al. v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452:

… characterized the problem of assessing a claim for lost
ability to earn income in this way (p. 469 D.L.R.):

 "We must now gaze more deeply into the crystal ball.
What sort of a career would the accident victim have had? What were his
prospects and potential prior to the accident? It is not loss of earnings but,
rather, loss of earning capacity of which compensation must be made: The Queen
v. Jennings, supra. A capital asset has been lost: what was its value?"

[8] The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include
whether:

1.The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2.the plaintiff is less marketable or attractive as an
employee to potential employers;

3.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

4.The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[182]     In order
to prove loss of future earning capacity, the standard of proof that Mrs.
Schmidt needs to meet is not on the balance of probabilities, but she must
establish a real possibility of a loss.

[183]     The task
of the court is to assess damages rather than to calculate them mathematically:
Rosvold v. Dunlop, 2001 BCCA 1.

[184]     Even
though an injured person such as Mrs. Schmidt continued her employment with the
dealership, Spring Aviation and then with her husband’s home-based business, it
does not foreclose her from making a claim for a loss of earning capacity: Pallos
v. Insurance Corp. of British Columbia, 100 B.C.L.R. (2d) 260.

[185]    
Mrs. Schmidt relies on Ms. Burden’s evidence to support her claim for
loss of future earning capacity. Ms. Burden stated in her report of July 15,
2009 that:

At this time, Ms. Schmidt is not
suited for work in Light, Medium or Heavy demand.

[186]     In
addition, Mrs. Schmidt points to Dr. Lau’s comment that Mrs. Schmidt’s
employability would depend on her work environment, and Dr. Raghavan’s
statement that Mrs. Schmidt would be able to return to part-time work which
does not involve repetitive upper limb activities or repetitive lifting.

[187]     Mr.
Hawkins argues that the medical evidence does not support Mrs. Schmidt’s
allegation that she is incapable of working at a job similar to that she had at
the dealership.

[188]     After Mrs.
Schmidt graduated from high school, her short-term jobs were in the retail
industry as a clerk. Since 1990, she has always held clerical positions.

[189]     When she
left the dealership, she pursued a part-time clerical position with Spring
Aviation and is now in a clerical position with her husband’s business.

[190]     There is
no evidence before me that Mrs. Schmidt has ever, before or after the accident,
intended on pursuing physical-type work. Ms. Burden’s physical evaluation
report shows certain limitations, many of which could have existed prior to the
accident.

[191]     It is
unlikely that Mrs. Schmidt would pursue physical work. She is not a
physical-type of person. She does not participate in sports. She has
demonstrated that she has the ability to carry on her pre-accident vocation
doing clerical duties, as she was doing at the time of the trial.

[192]    
In Peron v. Lalari, 2010 BCCA 140, the court held:

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.

[193]     The onus
is on Mrs. Schmidt to prove a possibility of a future event relating to a loss
of income. She has not met that onus. I dismiss the plaintiff’s claim for
future loss of earning capacity.

Cost of Future Care and a Loss of Homemaking
Services

[194]      The
evidence before me, which comes from Mrs. Schmidt, is that her family assisted
her when she was off work for the first week with her homemaking and childcare
responsibilities. There is no evidence before me that she was unable to look
after her children. There is vague evidence that she was unable to work in the
garden and her father and a neighbour assisted her. There is no evidence before
me that she can no longer look after her home and garden. At the time of trial,
she was fully participating in all activities of her children, including taking
them to their various activities and participating in her children’s field
trips.

[195]     In Ms.
Burden’s Cost of Future Care report, she lists activities daily living.  Ms.
Burden refers to self care and dressing, laundry, food preparations, home
making tasks, financial management, family and child care, outdoor maintenance,
communication, care of animals and travel and transportation. Under each of
these topics, Ms. Burden refers to information and statements from and made by
Mrs. Schmidt. Except for Mrs. Schmidt’s evidence relating to her father and
neighbour assisting her in garden maintenance and bouncing with her children on
a trampoline, I heard no evidence about these other activities.

[196]     Dr. Lau
recommended nerve blocks as did Dr. Raghavan.  Dr. Lau has recommended Botox
treatments as they have been a successful treatment.  This is also noted by Dr.
Waller.  Dr. Raghavan states that Mrs. Schmidt may have to revert from time to
time to pain medication.  Dr. McDougall suggests that she take over the counter
medication such as Motrin and Advil.  Dr. McDougall recommends proper back
support and head posturing in an office based environment.

[197]     Based on
these recommendations and considering Table 3 of Ms. Burden’s Cost of Future
Care I allow the following:

Special Expenses

[198]     The
plaintiff presented exhibit 8, a list of her special expenses that remain
unpaid. The vast majority of these expenses relate to physiotherapy and massage
therapy. Each expense was not proven.

[199]    
In Mr. Hawkins’ final argument, Mr. Hawkins’ position is as follows:

When considering the evidence in
total, it is clear that Mrs. Schmidt has relied heavily on going to
physiotherapy without obtaining any significant benefits. It would appear that
she would go to physiotherapy office to do exercise instead of simply doing
them on her own. While the defendant acknowledges that a certain amount of
physiotherapy treatment is appropriate, it is submitted that Mrs. Schmidt went
well beyond what could be considered medically necessary. The defendant submits
that there would be significant reduction in the global amount awarded for
special damages which amount would take into consideration Mrs. Schmidt’s
failure to properly mitigate.

[200]     I agree
with Mr. Hawkins’ position. Mrs. Schmidt in her evidence stated that physiotherapy
and massage therapy did not make her better, but merely maintained her
condition. Yet Mrs. Schmidt demonstrated, which I refer to earlier in these
reasons, that she went without physiotherapy for over a month without suffering
any deterioration in her condition.

[201]     I award
Mrs. Schmidt two-thirds of her claim for special damages. In coming to this
amount, I take into consideration her failure to mitigate.  I award Mrs.
Schmidt $11,090.92 in special damages.

IN SUMMARY

[202]     I award
the following:

I award no damages for loss of future
earning capacity or past wage loss.

[203]    
The plaintiff will have her costs on Scale B unless there is reason to
the contrary, which I am not aware.

“H.C. Hyslop J.”

HYSLOP J.