IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100827

Docket: 41650

Registry:
Vernon

Between:

Julie Boyle

Plaintiff

And

Todd James Thomas
Prentice

Defendant

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

Introduction

[1]            
This action arises out of a motor vehicle accident that occurred on July
5, 2006, on 27th Street in Vernon, BC. Liability on the part of the defendant
is admitted.

[2]            
The plaintiff claims non-pecuniary damages, past wage loss, loss of
future earning capacity, loss of housekeeping capacity, cost of future care and
special damages as a result of the motor vehicle accident.

[3]            
The position of the defendant is that the plaintiff is entitled to
non-pecuniary damages and reasonable special damages but nothing for the other
heads of damages.

Background

[4]            
The plaintiff was 32 years old at the time of the accident. The
plaintiff, her husband and her two children moved to Vernon, BC in 2006, where
the plaintiff was going to pursue work as a substitute teacher in the fall of
2006. The plaintiff and her husband also wanted to expand their family, and in
fact did so following the accident, when they had their third child in November
2008.

[5]            
On the day of the accident, the plaintiff was returning home with her
children after performing some errands when she was rear-ended with sufficient
force to push her car into the vehicle ahead of hers. Her vehicle sustained
approximately $12,000 in damage and was considered a write-off.

[6]            
The plaintiff sustained soft-tissue injuries to her neck and lower back.
She attended physiotherapy, massage therapy and used Ibuprofen. The neck
injuries resolved themselves within five days after the accident but the low
back complaints plateaued around January 2007, and she still suffers constant
pain in her right side lower back area.

[7]            
On April 23, 2007, the plaintiff attended an independent medical exam with
Dr. Laidlow, at the request of the defendant. Dr. Laidlow filed his
report dated April 27, 2007. He stated:

Given that she has not had any
evidence of structural change in the spine, I do think that the prognosis for
her should be good. She may be prone to aching in the lower back with a lot of
twisting and bending activities but I do not think that this will be the
forerunner of further problems for her down the road.

[8]            
The plaintiff sought a more recent independent medical exam. She
attended at the office of Dr. Hirsch on March 3, 2010. Dr. Hirsh
filed a report dated March 5, 2010. He commented:

Based on today’s obtained history
and review of the forwarded clinical records, Mrs. Boyle sustained an
injury to her right lower back region in the subject motor vehicle accident. These
injuries probably involved soft tissue structures such as muscles and tendons
attaching to the spine.

He went on to write:

It is my opinion that the onset
and persistence of the right-sided low back pain and reported associated activity
limitations to date are solely causally attributable to the injuries Mrs. Boyle
sustained to her right low back region in the July 2006 motor vehicle accident.

Further on he states:

It is my opinion that absent the
subject motor vehicle accident, Mrs. Boyle would not have experienced
right-sided low back pain and associated activity limitations. I was unable to
identify any confounding medical issues subsequent to the motor vehicle
accident to account for her reported right-sided low back symptoms.

He concluded:

Given today’s assessment, I am generally
optimistic that trigger-point injections into the right quadratus lumborum
muscle will afford Mrs. Boyle some relief, however, there is no guarantee.
If future therapeutic interventions are not successful in mitigating Mrs. Boyle’s
residual right-sided low back symptoms, she probably will be left with some
ongoing discomfort and pain at this particular site, with some waxing and
waning of these symptoms depending on her activity level. Such symptoms, if of
sufficient intensity, may for short periods at a time, restrict her ability of
working full-time as an elementary school teacher.

[9]            
The plaintiff presently experiences pain in the lower back and describes
it as 2 out of 10 in intensity with occasional flare ups to 6 to 7 out of 10
with certain activities, notably twisting and bending. The increased pain will
often subside when the aggravating motions cease, but at times lasts much
longer.

[10]        
With respect to treatment, in addition to physiotherapy and massage
therapy, she has undergone multiple bouts of intramuscular stimulation; she has
worked with personal trainers; she has a regular exercise program; she has
attended aerobics classes; spin classes, which deal with stationary cycling;
and non-impact kick-boxing classes. Her exercise program is usually three to
four times a week. She continues to take periods of rest and applies hot and
cold packs to her affected area when the pain increases. Despite all of the
efforts of the plaintiff, I am satisfied she still has a permanent ongoing low
back pain condition and must restrict her physical activities and the
interaction with her children as a result of that condition.

Non-Pecuniary Damages

[11]        
At the time of the accident, the plaintiff was 32 years of age. She has
a remaining life expectancy of 47.9 years after trial, and her symptoms have
significantly affected her lifestyle. She does not do the activities with her
family that she did in the past, and she does not enjoy some of the activities,
such as camping, as she otherwise would. Both the plaintiff and her husband
were active campers and hikers prior to the accident. They also used to enjoy
simple activities such as attending a movie, but that activity has decreased
substantially because of the need for the plaintiff to get up and exercise and
stretch her back.

[12]        
Furthermore, she is not able to parent the way she would like to. She is
restricted in what she can do with her children, especially activities that
involve such things as bending over and lifting. The plaintiff’s youngest child,
Isla, is now a year and a half and weighs approximately 30 pounds. Before Isla
could stand, the plaintiff required assistance placing and removing the child
from her play-pen and crib. With respect to the two older children, the
plaintiff cannot do the roughhousing with the children that she enjoyed doing
previously and experiences increased pain when she takes them sliding at the
park.

[13]        
The plaintiff is also unable to do heavy housekeeping duties such as
washing the floor and unloading the washing machine, activities which she
formally enjoyed doing as she prided herself on being a good housekeeper.

[14]        
The plaintiff says that non-pecuniary damages should be in the area of
$60,000-$85,000 and relies upon Paller v. Paller, 2004 BCSC 977 [Paller];
Randhawa v. Hwang, 2008 BCSC 435; and Demarzo v. Michaud, 2010
BCSC 255.

[15]        
The defendant, instead, says that the range of damages in similar cases
is between $20,000 and $40,000. The defendant relies upon the following cases,
namely: Bray v. Gaete, 2004 BCSC 335 [Bray]; Fisher v. Stone,
2008 BCSC 430 [Fisher]; Hamilton v. Vance, 2007 BCSC 1001 [Hamilton];
Dewitt v. Takacs, 2008 BCSC 314; and Wery v. Toulouse et al.,
2006 BCSC 823 [Wery].

[16]        
The defendant says that because seven weeks after the accident, on
August 28, 2006, the plaintiff felt 80% recovered on 8 out of 10 days, and because
she does not have multiple injuries as some of the plaintiffs do in the cases he
referred to, the proper award in these circumstances is between $25,000 and
$35,000.

[17]        
In the Bray case, however, the plaintiff at the time of trial,
which was four years after the accident, was working 50-60 hours per week, in Fisher
and Hamilton, both worked full-time and in Wery, the plaintiff
returned to work days after the accident. In the present case, the plaintiff is
unable to work full-time.

[18]        
I am satisfied that because the pain remains bad enough that the
plaintiff is not presently capable of working full-time at the job she loves,
and because of the permanent nature of her injury and the considerable pain she
has suffered during those flare-up periods when she overdoes certain
activities, the plaintiff has suffered and will continue to suffer a loss of
enjoyment of life, and as a result, the appropriate award for non-pecuniary
damages is $65,000.

Past Wage Loss and Past Loss of Opportunity

[19]        
When the plaintiff, her husband and the two children moved to Vernon
from Calgary in July 2006, she planned on obtaining work as a school teacher on
an on-call basis starting in September 2006, with a view to obtaining contract
work in January 2007. The family plan was for her to become pregnant with their
third child soon after they moved to Vernon, as they are desirous of having a
large family of three to five children. She was hoping to work 600 hours in the
school year of September 2006 to June 2007, so as to qualify for maternity
employment insurance benefits.

Loss of Opportunity

[20]        
The plaintiff claims past loss of opportunity and refers to Paki v.
Muni, 1995 CarswellBC 2344 (S.C.), at para. 53 which states:

[53]      … In determining if
such a loss has occurred, the court may consider if "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": Brown v.
Golaiy et al (unreported, December 13, 1985, Vancouver Registry B831458
(S.C.)).

The Court went on at para. 65:

[65]      To say the least, it is
difficult to calculate the plaintiff’s loss for past earning capacity. Although
the evidence shows that he would probably have worked during this period, it is
difficult to establish the amount of work that he would have done given the
demands of his courses and his family life.

[21]        
The plaintiff submits that but for the accident she would have been
working, on call, one to two days a week in the fall of 2006, and would have
received contract work by 2007. She also submits that she would have been
pregnant in time to take maternity leave at the end of the 2007 school year and
then be able to return to contract work in the fall of 2008.

[22]        
The plaintiff says that she would likely have been working in September,
one day per week, at $194.75 per day. She also would be in a position to apply
for contract work, which pays $306.26 per day, plus pension contributions for a
total of $346.07. The advantage of having contract work is that she would then
have priority on the TOC list when the contract ran out. The plaintiff says
that in January 2007, contracts were available and she would have ideally
obtained a 0.4 contract, which is two days a week.

[23]        
The plaintiff, using the assistance of an actuary, says that the loss of
income to the date of trial was $73,103.72 and with the additional pension on
contract work, the total would be $82,227 less her income of approximately
$50,000 for an agreed upon net loss after deductions of $27,393.

[24]        
Four days after the motor vehicle accident, the plaintiff sent in all
necessary documents to be on the teacher-on-call rota. She had determined that
Mondays and Tuesdays were the days of the week when she was more likely to obtain
work, so she arranged for babysitting for those two days and advised the School
Board that she was not available on Wednesdays, Thursdays and Fridays. The
following year, she determined that Mondays and Fridays were the most likely
times to obtain employment, and consequently booked off Tuesdays, Wednesdays
and Thursdays.

[25]        
The plaintiff was aware that the Vernon School District limited the
number of teachers on its teacher-on-call list (“TOC”) in order to ensure a
reasonable amount of work for everyone on the list. She was unable, however, to
give any evidence as to how many teachers were on the list in June 2006, how
many teachers applied to get on the list in September 2006, or how many
teachers’ names were added to the list. As the plaintiff explained, teachers on
“re-call status”, that is those laid off in the previous school year, got
priority on the TOC list and she was not aware of how many teachers were on re-call
status. Being on the TOC list, however, does not mean that anyone would receive
work unless their name was requested for a particular shift. Getting work
required a teacher to be absent and then others higher up on the TOC list would
either be working, not qualify, or simply decline the shift. The plaintiff met
the deadlines for her application to be on the TOC list, she was not called for
an interview until December 2006 and was not placed on the TOC list until
February 2007. The plaintiff started to work on March 3, 2007. Unfortunately,
there is no evidence as to the amount of work available for the plaintiff in
the fall of 2006 or, if she had received earlier placement on the TOC list,
that she would have received any work.

[26]        
During the period of time that the plaintiff did work, that is from
March 2, 2007 until December 7, 2008, she in fact worked 5.15 days per month
for 2007 and 3.1 days, on average per month, for January to June 2008. No
documents were provided for her work starting in September 2008 to the present.

[27]        
The plaintiff says that she passively turned down working opportunities
by leaving her phone off the hook on five occasions. She did this because she
physically could not work and did not want to be in a position to turn down
work, so she left her phone off the hook. Again, there is no evidence to show
whether or not she would have been called or the likelihood of her being called
on those five occasions.

[28]        
 There is also no evidence that she would have obtained contract work in
February 2007, as contracts were awarded based on priority set out in the
collective agreement and TOC applicants fall at the bottom of that list. The
plaintiff, in fact, did not receive a contract until December 2007, effective
January 2008.

[29]        
I am left to speculate as to the amount of work the plaintiff would have
received but for the accident. The employee records for March 1, 2007 to June
30, 2008, were only put into evidence by the defendant. No records were
provided for September 2008 to the present, no one from the Vernon School
District was called to indicate what the plaintiff’s status was on the TOC
list, what her likelihood of employment would be, and how soon she would have
obtained contact work. In my view, the plaintiff has not made the factual
foundation upon which I can grant judgment and I dismiss the plaintiff’s claim
for loss of opportunity.

Past Wage Loss – Recovery of Sick Benefits

[30]        
In the fall of 2008, the plaintiff took sick leave which was related to
back pain. That loss was for a period of 43.2 days, resulting in a loss of a
net value of approximately $13,025.66 once pension is added in. She was covered
by insurance through her employer’s insurance plan, however the plaintiff submits
that the loss is still compensable. The plaintiff submits that the defendant
should not benefit from the plaintiff’s foresight of having insurance: Kask v.
Tam (1996), 21 B.C.L.R. (3d) 11, [1996] 7 W.W.R. 494 (C.A.) [Kask].

[31]        
The defendant submits that the plaintiff has not proven a compensable
loss during the fall absence because she was paid 15 days of sick time and 28
days in salary indemnity benefits, for a total of 43 days, which is more than
she would have worked had she not been sick; the sick benefits that the
plaintiff received do not fall within the insurance exception noted in Cunningham
v. Wheeler, [1994] 1 S.C.R. 359, 113 D.L.R. (4th) 1 [Cunningham];
and there is no expert evidence that the absence was caused by the injuries
resulting from the accident rather than the plaintiff’s pregnancy.

[32]        
The defendant argued, pursuant to Cunnigham, that in order to
show that the benefits are in the nature of insurance, to fit within the
exception of payments that are not deductible from past wage loss, there must
be evidence adduced of some type of consideration given up by the employee in
return for the benefit. The defendant therefore submits that the evidentiary
burden rests with the plaintiff to establish that she paid for the provision of
her disability benefits, either directly or indirectly. While the defendant
concedes that the plaintiff’s salary indemnity benefits were deducted from her
paycheques and therefore are captured by the insurance exception, the sick time
is part of her salary benefits she received from the School Board and there is
no evidence that there were any trade-offs between the union and the Board
during collective bargaining for the sick benefits and therefore nothing to
show that the plaintiff established anything was given up for the receipt of
these benefits. Given that the plaintiff received 15 days of sick time and only
worked 11 shifts for the same period the previous fall, the defendant submits
that the plaintiff has not shown a loss. 

[33]        
The plaintiff argues that the Court of Appeal in Kask, extended
the rule beyond the insurance exception where, at para. 24, the Court
held:

[24]      There will be few cases
where the tortfeasor can escape paying compensation to an employee for lost
time at work when the absence was covered by the employer or its insurer. Either
the employer was obliged by contract to pay or to provide insurance coverage,
in which case it can be easily shown that the benefit formed part of the
overall compensation package, or the employer was under no obligation but
continued the salary ex gratia, in which case the law says that the
tortfeasor cannot take the benefit of another’s generosity.

[34]        
Whether the benefits in this case are properly deductable from a claim
for past wage loss is immaterial as the plaintiff has not first established
causation. The plaintiff was pregnant during this period of time and gave birth
in November 2008. The plaintiff led no medical evidence to establish that her
absence from work in 2008 was caused by the accident rather than her pregnancy.
In fact, the plaintiff’s own evidence was that she was experiencing back pain
which included the left side of her back and pain down her leg. The plaintiff’s
accident injuries have only involved right-sided back pain with no pain
referral. The evidence of the plaintiff supports the conclusion that her
absence was caused by her pregnancy and not the defendant’s negligence, so even
if a loss is proven she cannot recover from the defendant.

Loss of Capacity/Future Wage Loss

[35]        
The plaintiff claims for future wage loss/loss of capacity on three
premises:

(a)      loss
of a capital asset;

(b)      delayed
entry into the full-time workforce arising from her delayed pregnancy; and

(c)      loss
of housekeeping capacity.

Loss of Future Earning Capacity – Loss of a Capital Asset

[36]        
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal laid out
the legal test for awarding damages for loss of future capacity. Madam Justice
Garson, at para. 32 states:

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

[37]        
Lydia Phillips, an occupational therapist, performed a functional
capacity evaluation on the plaintiff and prepared a report, dated April 22,
2010, and gave evidence at trial.

[38]        
Ms. Phillips had the plaintiff complete a work simulated circuit in
order to gain more information about the plaintiff’s tolerances specifically
related to the job of teaching primary children. These included such things as:
turning tests at a low level, requiring low-stooped posture; filling out
questionnaires while leaning forward in a low-stoop position in a similar
posture to leaning over children’s desks; and  activities involving periods of
low, mid, and high-reaching while doing physical activities. The pain on a
scale of 0 to 10 showed that the pain increased to levels ranging from 3 to 3.5
and 4.

[39]        
In the rating of her pain and tolerance, ratings for her low back varied
from 0.7 at 8:30 a.m. when the activities began, to 3 after performing various
tasks at 1:30 and down to 2 at the end of the day. When day two began, her pain
was 2 and at the end of the day after the work stimulation tests, it was 3.5.

[40]        
In her report, Ms. Phillips stated:

Ms. Boyle has limitations with respect to vocational
options. Her physical capacity is for jobs in the “light” demand. She is not
suited to jobs in which she has to work in a forward stooped posture or work at
a low level. That being said, she is able to perform those types of jobs, but
with the risk of exacerbating her pain symptoms and creating functionally
limiting pain. (FCE, Dr. Hirsch, Interview)

Ms. Boyle’s current job is part-time as a teacher for
grade 5 and 6 students. She is capable of full-time work doing this job (FCE)
however, may be limited to part-time work due to regular flare-ups of pain. (Dr. Hirsch)

It is not recommended that Ms. Boyle
teach primary grade levels unless she is able to be accommodated with equipment
and adaptations. (FCE)

[41]        
Ms. Phillips acknowledged that she saw the plaintiff on what is
considered a “good day”, not on a day when the plaintiff had “flare-ups”.

[42]        
Dr. Hirsh, in his report of March 5, 2010, stated:

At present, I would consider Mrs. Boyle
physically capable of working part-time as an elementary school teacher. In the
context of her recurrent flare-ups, there is some uncertainty at this stage
whether she would be able to tolerate full-time hours. At present, this is a
theoretical consideration, as Mrs. Boyle does not anticipate working
full-time until all of her children have reached an age when they are at school
the entire day.

As noted above in these reasons, Dr. Hirsch
concluded:

Given today’s assessment, I am
reasonably optimistic that trigger-point injections into the right quadratus
lumborum muscle will afford Mrs. Boyle some relief, however there is no
guarantee. If future therapeutic interventions are not successful in mitigating
Mrs. Boyle’s residual right-sided low back symptoms, she probably will be
left with some ongoing discomfort and pain at this particular site, with some
waxing and waning with these symptoms, depending on her activity level. Such
symptoms, if of sufficient intensity, may for short periods at a time, restrict
her ability of working full-time as an elementary school teacher.

[43]        
There is no question that the plaintiff has a passion for teaching
elementary school children and has a good work ethic. She has, I am satisfied,
done her very best at rehabilitation. What is telling is that she had a job
share in May 2008, and as her job share partner wished to have some time off,
the plaintiff worked one full week. On the second day, Tuesday, she started to
feel uncomfortable and her pain increased to the point where on Friday, she
felt that she should have called in sick but instead soldiered on. She was in
pain and described herself as being grumpy and did nothing that weekend except
rest. Her husband described the plaintiff at the end of the week as being in a
lot of pain and that the weekend was a “washout” for activities. He took over
responsibility for the family that weekend. The plaintiff’s husband also
describes how she lacked energy and was obviously in pain after the functional
capacity evaluation was concluded.

[44]        
I am satisfied, based on all of the evidence, that the plaintiff will not
be able to work full-time as an elementary school teacher. I am satisfied that
she will most likely be able to work four days a week or 0.8 as it is known in
the teaching profession. Working one day less per week would result in an
annual loss of $12,406, or according to the expert’s report, considering the
present value of the loss with the plaintiff retiring at age 65 and taking into
account negative contingencies, the present value is $205,331. Including
pension benefits, the loss would amount to $232,025.

[45]        
The one contingency that is not built into the economist’s report is the
assumption that the plaintiff intends to have one or two more children. The
effect of that will be that she will be delayed in commencing to work at 0.8
until the youngest child is in Grade 1.

[46]        
I am satisfied that there is a real and substantial possibility the
plaintiff will suffer an income loss and that she has also suffered a loss of
earning capacity and I assess that future loss to be $175,000.

Delayed Entry into the Full-Time Workforce

[47]        
The evidence is clear that the plaintiff and her husband agreed that she
would work two days a week until the youngest child entered Grade 1, at which
time she would have started work either at 0.8, so she could help out with the
children at school, or work full-time when the youngest child entered Grade 1. The
plaintiff says that but for the accident, she would have conceived her third
child sometime in June 2006 or the fall of 2006, however, because of the advice
of her doctor, and an incident when she attempted to assist with her sister’s
newborn child in around January 2007, and found that she could not lift the
child, she had concerns about her ability to be able to mother a new child.

[48]        
In addition to her claim for loss of earning capacity, the plaintiff
says that as a result of delaying her re-entry into the full-time workforce
because of delayed pregnancy, she has suffered a loss of $35,046: Cempel v.
Harrison Hot Springs Hotel Ltd., [1996] B.C.J. No. 556 at para. 63
(S.C.).

[49]        
The experience with her sister’s new child took place after she
originally contemplated conceiving another child. The plaintiff discussed her
concern about delaying the pregnancy with Dr. Laidlow and Dr. Jolly,
her family doctor, in the spring of 2007, and both doctors advised her that:
she may or may not have increased back pain during the pregnancy; there was no
danger to her health in getting pregnant; and it was not necessary to delay her
pregnancy and she should not “put her life on hold”.

[50]        
The plaintiff’s claim relies on the presumption that she could conceive
a child when she wanted to. The plaintiff herself acknowledges that problems
with conceiving would be beyond her control and she admitted that she has had a
previous miscarriage. Also, the evidence is that the plaintiff and her husband
wish to have three to five children and there is no evidence as to when the
fourth or fifth child may arrive, which would also delay the plaintiff’s
entrance into the workforce on a full-time basis.

[51]        
In view of the recommendations of the two doctors, the plaintiff has not
satisfied me that the decision she made to delay her pregnancy was as a result
of the motor vehicle accident and therefore I dismiss that portion of her
claim.

Loss of Housekeeping Capacity

[52]        
The plaintiff has always prided herself on being a good housekeeper and
enjoyed keeping up her household. It is clear that since the accident, the
plaintiff has let her standards slide. As a result, the plaintiff is claiming a
loss of housekeeping capacity.

[53]        
The plaintiff relies on Paller, at para. 57, where the
plaintiff suffered similar chronic back pain and was awarded damages for loss
of housekeeping capacity. Quoting from para. 63 of McTavish v.
MacGillivray et al., 2000 BCCA 164, the court in Paller stated:

[57]      … As we have seen, it
is now well established that a plaintiff whose ability to perform housekeeping
services is diminished in part or in whole ought to be compensated for that loss. It
is equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that
of the family members or that they are to be compensated. Their provision of
services evidences the plaintiff’s loss of capacity and provides a basis for
valuing that loss. The loss remains the plaintiff’s loss of economic
capacity.

See also Campbell v. Banman, 2009 BCCA 484.

[54]        
The plaintiff notes that in Paller, in awarding $30,000, the Court
took into account the fact that the plaintiff had a young family that would
take an increasing role in the maintenance of the home; that with increased
working responsibilities, there would be less time in any event to perform the
required homemaking; and that the plaintiff lived in rented accommodations and therefore
would be less likely to assist with renovations.

[55]        
The plaintiff submits that her loss is similar to that in Paller
and therefore seeks an award of $20,000 to $30,000.

[56]        
I note, however, that Dr. Hirsch concluded:

Mrs. Boyle should be capable
of performing all domestic chores. However, she may have to utilize
accommodating strategies, as well as modify how she performs the more
physically taxing activities by doing them slower or breaking up such tasks.

[57]        
As a result, I would award a more modest amount for loss of housekeeping
capacity, and conclude that $15,000 would be appropriate.

Cost of Future Care

[58]        
The test for determining the appropriate award under this heading is an
objective one, based on medical evidence and the reasonableness of the claims: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).

[59]        
Ms. Phillips provided a cost of future care report which recommended
Advil to manage her pain, along with naturopathic pain medication, consultation
with a kinesiologist, gym pass, ergonomic assessment, workplace equipment, home
exercise equipment, homemaking equipment and home maintenance equipment.

[60]        
Dr. Hirsh, in his report with respect to future care, recommended 
the following:

To date, she has received sufficient advice with respect to
the implementation and maintenance of an exercise routine and accordingly I do
not think that additional input from a kinesiologist, personal trainer or
physiotherapist is warranted at this stage.

…

I do not recommend passive treatments such as massage,
chiropractic spinal adjustments or physical modalities.

…

Mrs. Boyle should be capable of performing all domestic
chores. However, she may have to utilize accommodating strategies, as well as
modify how she performs the more physically taxing activities by doing them
slower or breaking up such tasks.

…

She should be able performing [sic] yard-related tasks but on
account of her right-sided low back symptoms may not be able to pursue this
work as vigorously and for as long a period as prior to the subject motor
vehicle accident.

…

I do not foresee the need for
homemaker assistance, special equipment, surgical treatment or provision of
child care referable to the July 2006 motor vehicle accident.

[61]        
The plaintiff submits that the Court can rely on the recommendations of
an occupational therapist as a “medical expert” in making awards for cost of
future care: Ghani v. Umran, 2008 BCSC 585 at para. 64; and Thorp
v. Gerow, 2008 BCSC 622 at para. 23. The defendant, on the other hand,
argues that the recommendations go beyond what is necessary: Fennell v.
Hiebert, 2010 BCSC 824 at para. 16; and Travis v. Kwon, 2009
BCSC 63 at paras. 109-111. Furthermore, the defendant argues that the Court
should decline to follow the occupational therapist’s recommendations where
they conflict with those of Dr. Hirsch, the medical expert: Lomax v.
Weins, 2003 BCSC 1354; Izony v. Weidlich, 2006 BCSC 1315; Naidu
v. Mann, 2007 BCSC 1313; Polovnikoff v. Banks, 2009 BCSC 750; and La
France v. Natt, 2009 BCSC 1147.

[62]        
With respect to further medication and treatment, the plaintiff is
seeking $27,483.79 for Ibuprofen and “Youth Juice”, which is a natural product
purchased by the plaintiff through a multi-layered marketing scheme, of which
the plaintiff is a distributor and therefore benefits financially from its
sale. The plaintiff’s evidence was that she needs to use less Ibuprofen if she
uses the “Youth Juice” and without “Youth Juice”, the present value of her
Ibuprofen use would be $7,912. There was no medical evidence led about the
benefits to the plaintiff of “Youth Juice”, and the more reasonable claim,
based on the medical evidence, is the claim for Ibuprofen. I decline to award
the plaintiff the cost of “Youth Juice” but I am satisfied that the plaintiff
is entitled to receive $7,912 for the future cost of Ibuprofen.

[63]        
Ms. Phillips recommended both the purchase of home exercise
equipment and a gym pass, as well as a kinesiologist. Dr. Hirsch, on the
other hand, was of the opinion that the plaintiff had received sufficient
advice with respect to the implementation and maintenance of an exercise
routine and did not require additional input. I am satisfied that the plaintiff
has sufficient instruction to carry out an appropriate exercise regime at home
without further assistance. The present value of home exercise equipment is $2,788.08
and I so award. I decline to make an award for the cost of a gym membership or a
personal trainer.

[64]        
Finally, the plaintiff claims $7,196.41 for homemaking equipment and
$3,588.80 for home maintenance equipment. Dr. Hirsch’s conclusion was that
the plaintiff should be able to perform housework and yard work with some minor
adaptations and he did not foresee the need for equipment. Given Dr. Hirsch’s
conclusion that this equipment is not necessary and in light of the fact that
this Court has awarded damages to the plaintiff for the loss of her ability to
perform housework with the same vigour as in the past, I decline to make an
award under this head.

Special Damages

[65]        
The plaintiff is entitled to reimbursement for monies already expended
for reasonable claims, namely physiotherapy in the amount of $650, and massage
therapy in the amount of $600. This is based on the assumption that these
amounts have not been claimed from her insurance already. I am also of the view
that the extra-strength Motrin for $650 is appropriate, as was the purchase of
the heat massage chair pad at $60 and the memory foam mattress at $150. For the
same reasons given above, I decline to make an award for the cost of “Youth
Juice”. The claim for the prolotherapy injections was also not medically
recommended and is therefore denied.

[66]        
In addition, the plaintiff claims for gym expenses for 2008 onward and
expenses incidental thereto, such as a personal trainer, daycare and mileage
for getting to the gym, her physiotherapy and massage appointments. The
defendant disputes that he should be liable for these expenses since the
plaintiff had already had the guidance of two personal trainers in the past,
who set up a specialized regime for her, and therefore she could have carried
on that regime on her own at home. For the same reasons as above, I agree that
these expenses were not reasonable in the circumstances. However, her trips to
her physiotherapist and for massage therapy were reasonable and therefore I
award $100 for mileage associated with those appointments.

[67]        
The plaintiff also claims extra moving expenses of $800 because they had
to spend that amount of money to move the plaintiff’s mother into their home as
the plaintiff’s mother was going to babysit for them to help out. I would
think, however, that the rental of a suitable van for two days of moving would
be no more than $200, and award that amount.

[68]        
Also, because the plaintiff could not perform the carpet cleaning of the
home, that was done professionally instead of renting a cleaning unit, for an
additional cost of $240, which I find to be reasonable.

[69]        
Finally, the plaintiff also makes a claim for a buggy, stroller and
sling for transporting her child. However these are items that the plaintiff,
in my view, would have been purchasing in any event, and I decline to award
damages for them.

Conclusion

[70]        
In summary, the plaintiff is entitled to the following:

[71]        
The parties may speak to costs if necessary.

The
Honourable Mr. Justice F. W. Cole