IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100916

Docket: 0934442

Registry:
Prince George

Between:

Bobbi
Knight

Plaintiff

And

Blair
Belton

Defendant

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Knight was injured on March 29, 2008, when the van she was driving
was struck from the rear by a pickup truck. Mr. Belton admitted that his
negligence caused the collision. Ms. Knight’s claim for damages proceeded to a
five-day trial.

[2]            
Ms. Knight is a dental hygienist and the mother of two children who are
presently six and eight years old. Ms. Knight complains of persistent mid-back
pain, which is made worse by working as a dental hygienist and by working at a
computer. The main issues at trial were whether Ms. Knight’s pain will persist
or resolve, and what will be the impact on her career, if any.

BACKGROUND FACTS

a)       Before the Accident

[3]            
Ms. Knight has been a physically active and disciplined person
throughout her life. She was a serious competitive figure skater from about age
10 to about age 15. At the young age of 10 she devoted seven hours a day, five
days a week, of her summer to training and cross-training in running, ballet,
and weight lifting.

[4]            
After completing high school, Ms. Knight spent over a year in an office
job, and then more than one season planting trees. She concluded that she
wanted to find work which would be well-paid and available anywhere in the
world.

[5]            
Ms. Knight decided to become a dental hygienist. She returned to high
school and completed science courses. She took sciences at the college level.
She moved from Vancouver Island to Prince George because she thought it might
increase her chance of being accepted into the dental hygiene program at the
College of New Caledonia.

[6]            
Ms. Knight was accepted into the program and graduated in 1997 as a
dental hygienist. She began working an average of five days a week, four of
them every week for a Prince George dentist, and two days alternate weeks for a
dentist in Quesnel.

[7]            
Dental hygienists in British Columbia work for dentists, but perform
most tasks outside the presence of the dentists. Dental hygienist work is
primarily scaling and cleaning calculus from teeth above and below the gum line.
That work accounts for about 45 minutes per hour of work. Sometimes an entire
1½ hour appointment will be devoted to only one-quarter of a patient’s mouth. During
the scaling work, the dental hygienist must hold her arms out in front of her,
without resting her arms on the patient. The position can be somewhat
contorted. During the scaling and cleaning, the dental hygienist can shrug her
shoulders, but cannot take significant breaks to stretch out or rest. In
British Columbia, dental hygienists are typically required to work without
breaks between patients except for lunch.

[8]            
There are other activities that a dental hygienist performs during a
typical appointment, including making chart notations and taking x-rays.
However, activities such as polishing teeth and taking dental impressions are
typically performed by dental assistants. A person can qualify in B.C. as a
dental assistant after a 10 month program. Dental assistants typically earn about
half as much as dental hygienists.

[9]            
Ms. Knight married her husband, Mr. Quarenghi, on August 1, 1998. They
enjoyed outdoor activities together, including hiking and fly fishing.

[10]        
Ms. Knight’s older child, a son, was born in December 2001. Ms. Knight
took a six-month leave. She did not want to return to her previous work hours
of 2:00 p.m. to 9:00 p.m. She moved to a different dental practise and worked
there four days a week from 7:00 a.m. to 2:00 p.m.

[11]        
Ms. Knight’s daughter was born in December 2004. Ms. Knight stopped
working a few months prior to the birth because of complications with her
pregnancy. Ms. Knight was off work for a year including the period prior to the
birth.

[12]        
Ms. Knight returned to work in December 2004. However, she began working
only 3 days a week, planning to increase her work time eventually.

[13]        
By early 2007, Ms. Knight was working an average of about 3½ days per
week, being about 28 hours per week.

[14]        
Ms. Knight and Mr. Quarenghi decided to move to Vancouver Island on a
one-year trial basis. Mr. Quarenghi found a job teaching high school in
Courtenay, B.C. and the family moved there in August 2008.

[15]        
Ms. Knight was offered a position in the Courtenay area working three
days a week as a dental hygienist, but was not able to find daycare acceptable
to her for that much time. In the fall of 2007, she started working one full
day per week with one dentist, on the basis that she would work more days when
she found acceptable daycare. She also began working Monday evenings for a
different dentist.

[16]        
In early 2008, Ms. Knight found acceptable daycare for another day each
week, and began working two full days in one office, continuing to work Monday
evenings in the other. She earned $39 per hour for about 19 hours of work per
week, being $741 per week, and about $3,100 per month.

[17]        
Before the accident, Ms. Knight was fit and active and went running
regularly. She did not have any injuries to her back or shoulder. She did not
have any physical restrictions, and had no problems with working and playing
with her children.

b)       The Accident

[18]        
The accident occurred on March 29, 2008 on a bridge in Courtenay, B.C.
Ms. Knight was driving her family van, Mr. Quarenghi was in the passenger seat,
and the two children were in the back seats. Ms. Knight had stopped the van,
waiting for the traffic light to turn green.

[19]        
Mr. Belton’s negligence caused the accident. The pick-up truck he was
driving struck the rear of Ms. Knight’s van, pushing it forward. Mr. Bolton and
Mr. Quarenghi exchanged insurance details, and Ms. Knight’s family went home.
Later that evening, Ms. Knight went to the hospital and was prescribed
anti-inflammatory medication.

c)       After the accident

[20]        
The day after the accident, Ms. Knight felt terrible. She felt pain in
her neck, back, right shoulder, right arm and right chest.

[21]        
The pain worsened over the next few days. Ms. Knight did not have a
family doctor, and went to a walk-in clinic. At that time, her complaints
included headaches, vertigo when lying on her left side, and pain in the neck,
back, right shoulder, right bicep and right chest. Ms. Knight was prescribed
physiotherapy and medications.

[22]        
Ms. Knight stopped working. She took physiotherapy treatments two or
three times a week.

[23]        
In June 2008, Ms. Knight worked for one day as a dental hygienist, but
was not satisfied with her work performance and found it very painful. She
started doing exercises in the pool. She was spending about three days a week
either receiving physiotherapy treatment or doing pool exercises.

[24]        
By the summer of 2008, Ms. Knight’s headaches and vertigo were resolved
and her neck pain was reduced. She continued to suffer pain in her right
shoulder area and in her mid back. She reduced her use of prescription
medication and was mostly using ibuprofen and Tylenol for pain relief.

[25]        
Ms. Knight and her husband decided they would return to the Prince
George area at the end of the school year. They purchased a building lot in
Prince George and decided to build a new home on it, and to rent a home while
the new one was under construction.

[26]        
Ms. Knight and her family returned to Prince George around mid-August
2008.

[27]        
In October 2008, Ms. Knight began seeing Dr. Ames, a Prince George
family doctor with training and experience in sports medicine. Dr. Ames became
Ms. Knight’s primary care physician for her back and shoulder problems.

[28]        
Ms. Knight started physiotherapy in Prince George. She did a private
strengthening and stretching program for eight weeks, which included some work-related
exercises, such as holding her arms out in front of her. The pain she was
having in her right bicep and neck reduced, and her upper back pain was not as
constant. However, her mid-back pain remained a major concern.

[29]        
In January 2009, Ms. Knight began working four hours a week as a dental
hygienist. She suffered pain for days following her half day of work. She began
medicating herself before working.

[30]        
Construction began on the new family home in the spring of 2009. Mr. Quarenghi
did some of the work himself. His brother, who is a carpentry teacher at the local
college, also worked on the home, and arranged for his carpentry students to
work on it too. Other people were hired to work on the home.

[31]        
Ms. Knight wanted to assist the building project by doing things like
daily clean-up. She did not do so because of the pain. Apart from looking after
the children while her husband worked on the home, her contribution was limited.
Ms. Knight’s direct contribution consisted mostly of choosing colours and
materials and carpets, and doing deliveries and similar errands. She spent
about eight hours in periods of less than two hours staining baseboards herself,
but she did not do heavy work, or work requiring her to hold her arms out in
front of her in a static position.

[32]        
In the spring of 2009, Ms. Knight began working one full day a week as a
dental hygienist. She also worked five days in total that spring supervising
dental hygiene college students.

[33]        
In May 2009, Ms. Knight described her daily pain as five out of 10, but
that it could be as much as 10/10 (zero being no pain and 10 the most pain she
could imagine).

[34]        
Ms. Knight obtained a position teaching one course, pharmacology, to
dental hygiene students for four hours per week. She began teaching in the fall
of 2009, and found she required about 15 to 20 hours per week for preparation.
She used her computer for much of the preparation and found that it caused her
pain to flare up.

[35]        
A requirement of the teaching position is that Ms. Knight either
complete her university degree or take courses toward it. As a result, she
began taking one course online each semester.

[36]        
In October 2009, Ms. Knight described her mid-back pain as 7 to 8 (on a
scale with 10 as maximum pain).

[37]        
In November 2009, at the suggestion of Dr. Ames, Ms. Knight started Gunn
Intramuscular Stimulation (“IMS”) treatments with Mr. Rodrigues. Ms. Knight
found that this treatment helped her right chest area, but did not particularly
help her mid back.

[38]        
In November 2009, Dr. Dommisse, the orthopaedic surgeon who testified at
the request of the defence, examined Ms. Knight. He recommended that she pursue
treatment with a physiotherapist in North Vancouver named Ms. Williams, because
Ms. Williams could provide different therapies and treatment which Dr. Dommisse
thought would assist Ms. Knight. Dr. Dommisse testified at trial that Ms.
Williams has experience with treatment styles known as the Feldenkrais Method
and therapeutic touch.

[39]        
Ms. Knight was willing to pursue treatment with Ms. Williams and asked
the defence to fund it, including travel from Prince George to North Vancouver
for treatment. The defence declined to fund it.

[40]        
Ms. Knight earned about $19,400 in 2009.

[41]        
The construction of the new family home finished in January 2010. In
February, the family moved into their new home.

[42]        
Ms. Knight taught another course at the college, Dental 150, from
January to April 2010. Dental 150 is a prerequisite for the dental hygiene
course, rather than a course taught to students who have been accepted into the
dental hygiene program. It is a two-hour evening course. Ms. Knight spent only three
or four hours per week in preparation to teach this course. She also taught a
mentoring clinic, for a total teaching load of seven hours per week.

[43]        
Mr. Kerr, the occupational therapist who testified at the request of Ms.
Knight, conducted a work capacity evaluation of Ms. Knight in March 2010.

[44]        
Ms. Knight’s earnings in 2010, prior to trial, would be about 7/12 of
her 2009 earnings, and therefore about $11,300.

d)       At Trial

[45]        
The parties agreed that Ms. Knight suffered special damages of
$1,971.69.

[46]        
Ms. Knight is presently 40 years of age. She remains an engaging and
determined person, but is more tentative than she was before the accident. She
suffers persistent mid-back pain. The pain consists of a vice-like tightness
around her mid back, which sometimes throbs, or is numb, or burns, or feels
like pins and needles or muscles ripping. At the end of the day, it feels
throbbing, aching, deep and dull.

[47]        
Ms. Knight is presently working one day per week, from 8:00 a.m. to 5:00
p.m. She sometimes walks in a hunched position after performing a long
procedure. She sometimes sits in an awkward position because she has difficulty
twisting her back. She finds the pain very severe by 2:00 p.m. or 3:00 p.m. of
her workday.

[48]        
Ms. Knight takes Tylenol and Ibuprofen after work. It takes a few days
before she feels better. Ms. Knight’s pain worsened in the period of about nine
months prior to trial. Ms. Knight attributes that to a particularly high volume
of patients with difficult mouths to treat, such as those with years of
untreated calculus.

[49]        
Ms. Knight is passionate about dental hygiene work. She does very good
quality work, and a lot of patients specifically ask to be treated by her.

[50]        
Ms. Knight does not know what she will do in the future. She would like
to earn more money for the family, and is willing to try to work two days a
week as a clinical dental hygienist, hopefully with a few days break between
days of work. Ms. Knight thinks that clinical dental hygiene is not a realistic
full-time career for her. She has a contract to teach pharmacology in the fall
of 2010. She does not have a contract for teaching work in the spring term of
2011, and is concerned that there will be too few students enrolled for her to
be offered teaching work in the spring of 2011.

[51]        
Ms. Knight no longer engages in vigorous physical play with her
children. She has stopped doing active outdoor activities, and stopped running
and bicycling. She is able to go for 5 km walks several days a week and do some
exercises at the gym. Ms. Knight has difficulty with some household chores.

[52]        
Ms. Knight is active in the community. She continues to do volunteer
work, including photography for a fund-raising calendar.

EXPERT EVIDENCE

[53]        
Ms. Knight called the evidence of three experts: Mr. Gerard Kerr, an
occupational therapist who conducted a work capacity evaluation at the request
of Ms. Knight’s counsel; Dr. Ames, Ms. Knight’s treating sports medicine
physician; and Dr. McKenzie, an orthopaedic surgeon who examined Ms. Knight at
the request of her legal counsel. The defence called the evidence of Dr. Dommisse,
an orthopaedic surgeon who examined Ms. Knight at the request of defence
counsel.

i)        Mr. Kerr, Occupational Therapist

[54]        
Mr. Kerr’s work capacity evaluation included making observations to
assess effort, such as measuring heart rate and observing the start of timed
tests. Mr. Kerr concluded that Ms. Knight gave high levels of effort in
testing. He also found her self-reports of pain to be consistent with objective
observations.

[55]        
Mr. Kerr found that Ms. Knight’s tolerance for sustained static stooping
postures in combination with extended reaching is compromised by thoracic and right
upper back region pain. Based on that finding, he concluded that she had marked
limitations with respect to her tolerance to sustain the physical demands of a
dental hygienist on a durable basis. In his opinion, she would manage, with
significant discomfort, one day per week and possibly two days of dental
hygienist work, provided they are not back-to-back days. In Mr. Kerr’s view,
she would be better suited to performing half days of work, if such work were
available.

[56]        
Mr. Kerr also found that Ms. Knight has other limitations which do not
relate specifically to work as a dental hygienist. Those limitations are an
inability to maintain prolonged static sitting, reaching and stooping, or more
than select medium strength demands. She does not have the capacity to perform
more strenuous home/yard activities involving strong force application/bracing
through the right shoulder and/or thoracic spine. She is not capable of heavier
lifting or prolonged lifting demands or working in sustained moderate to extreme
stooping postures. This would include more strenuous yard work, heavier
gardening, and heavier home cleaning demands.

[57]        
I accept Mr. Kerr’s evidence about Ms. Knight’s high levels of effort
and her functional limitations.

ii)       Medical

[58]        
The medical evidence is consistent in diagnosing Ms. Knight as having
suffered a Grade 2 strain of the thoracic spine as a result of the accident.
Drs. Ames and Dommisse agreed that Ms. Knight suffered an injury at the
scapulo-thoracic junction, and that such an injury is not easily amenable to
treatment. I accept that evidence.

[59]        
The doctors differed on Ms. Knight’s prognosis and the effect of her
injuries on her ability to work.

[60]        
Dr. Ames expects that Ms. Knight’s condition will interfere with her
future employability or earning capacity or both. Dr. Dommisse holds the
opposite opinion, although he based his opinion on the assumption that Ms.
Knight would obtain 6‑8 months of treatment from Ms. Williams, and
on the assumption that Ms. Knight only wanted to work two days a week as a
dental hygienist.

[61]        
It is now over two years since the accident. Generally, maximum medical
improvement would be expected in two to 2½ years after the accident. Ms. Knight
has been diligent in pursuing the treatment offered to her. She has made all reasonable
efforts to pursue her rehabilitation and control her pain. She did not pursue
treatment with Ms. Williams because of the expense of travelling to North
Vancouver for treatment. Pursuing such treatment was not a practical option for
a mother of young children living in Prince George.

[62]        
Dr. Dommisse had great confidence in the ability of Ms. Williams to
achieve a positive result for Ms. Knight. However, he agreed with Dr. Ames that
the injury at the scapulo-thoracic junction is particularly difficult to treat.

[63]        
In light of the time since the accident, and the fact that Ms. Knight has
not only stopped improving but has recently experienced worsening of symptoms,
I accept Dr. Ames’s prognosis. There is hope that Ms. Knight will improve, but it
is unlikely that she will improve significantly. On the evidence available at
trial, I conclude that it is unlikely Ms. Knight will improve enough that she
can resume working more than two days a week as a dental hygienist.

ANALYSIS

[64]        
The parties agreed on the sum of $1,971.69 for special costs. Ms. Knight
claims damages under the other following headings:

a)       Non-pecuniary damages;

b)       Past lost earnings;

c)       Lost future earning capacity;

d)       Cost of future care; and

e)       Lost housekeeping capacity.

a)       Non-pecuniary Damages

[65]        
Non-pecuniary damages are damages to recognize losses that have not
required an outlay of money or have not involved losing payments. The purpose
is to provide solace to Ms. Knight for such things as pain, suffering,
disability, inconvenience, and loss of enjoyment of life. One purpose of such
damages is to substitute other amenities for those Ms. Knight has lost, not to
compensate her for loss of something with a monetary value. The award addresses
losses both up to the trial date and which she will suffer in the future.

[66]        
Ms. Knight’s position is that a proper award is $80,000 to $100,000. The
defence position is that the proper award is $40,000.

[67]        
Ms. Knight was and is an engaging, enthusiastic, hard-working, and
practical woman. She loves dental hygiene. She will not be able to practice it
full time, and may have to give up clinical practice altogether.

[68]        
Ms. Knight suffered several months of headaches, vertigo, and neck pain.
She suffered significant right shoulder pain for about a year. She has on-going
chronic mid-back pain and periodic right shoulder pain.

[69]        
Ms. Knight is chronically in pain, and as a result, is not as energetic
as she was before the accident. She is no longer able to enjoy rough physical
play with her children. She is no longer able to enjoy outdoor activities that
she previously enjoyed, like running, hiking, boating, skiing, and bicycling. She
was unable to contribute as much as she wanted to building the family home. The
accident has significantly diminished the quality of her life.

[70]        
Ms. Knight referred to these cases: Cleeve v. Gregerson, 2007
BCSC 1112; Gray v. Fraser Health Authority, 2009 BCSC 269; Poirier v.
Aubrey, 2010 BCCA 226, 4 B.C.L.R. (5th) 173; and Paller v. Paller ,
2004 BCSC 997.

[71]        
The defence referred to these cases: Rorison v. Dornan, [1993]
B.C.J. No. 752 (S.C.); Letourneau v. Min, 2001 BCSC 1519; Amberiadis
v. Groves, 2005 BCSC 1270; Sharpe v. Tidey, 2009 BCSC 948; Ragneborg
v. Giesbrecht, 2009 BCSC 110; Sylte v. Rodriguez, 2010 BCSC 207; Henri
v. Seo, 2009 BCSC 76; Brock v. King, 2009 BCSC 1179; Anderson v.
Merritt (City), 2006 BCSC 90; and Larlee v. Shier, 2008 BCSC 1610.

[72]        
I also considered Cathro v. Davis, 2008 BCSC 1645.

[73]        
No two cases are alike. Ms. Knight is entitled to damages for pain and
suffering in the amount of $75,000.

b)       Past Lost Earnings

[74]        
Ms. Knight’s position is that she should receive $108,000 for past wage
loss. The position of the defence is that she should receive $5,990.

[75]        
The defence argued that Ms. Knight was so busy with other activities,
such as parenting while her husband worked building the new home, teaching, and
doing volunteer work, that she would not have worked much even if she had not
been injured in the accident.

[76]        
I reject this submission. Ms. Knight is an active, energetic woman who
has filled her days productively because she was unable to work. Had she not
been injured, she would have worked comparable hours to the hours she worked
before she and her family moved to Courtenay, so long as suitable work and daycare
were available. Her history of working about 28 hours per week, even when her
children were very young, demonstrates her capacity and interest in doing that.

[77]        
Part of the difficulty in assessing Ms. Knight’s past lost earnings is
that in the period since the accident, she moved from Courtenay back to Prince
George.

[78]        
For the four-month period from the accident until August 2008, if the
accident had not occurred, Ms. Knight likely would have continued to work 19
hours per week in the Courtenay area. She would have earned about $12,400 in
that period. Because of the accident, she essentially earned nothing in that
period.

[79]        
When Ms. Knight moved back to Prince George in August 2008, there would
likely have been a few weeks of disruption of her work schedule as she settled into
the rental home, even without the accident.

[80]        
The evidence was not clear about whether a full time position would have
been available to Ms. Knight in August 2008. Dr. Tkachuk was able to provide
her with one day a week of work, but not until January 2009. However, Ms.
Knight was well-known in the Prince George dental community. It is probable
that Ms. Knight would likely have found 3½ days a week of work by November
2009, being 28 hours per week. She worked 28 hours per week before she left
Prince George for Courtenay.

[81]        
But for the accident, Ms. Knight would likely have continued to work an
average of about 28 hours a week until trial.

[82]        
Ms. Knight is paid about $41 per hour. For a 28-hour week, that is
$1,148, being about $4,800 per month.

[83]        
If Ms. Knight had not been injured, in November and December 2009, she would
likely have worked about five weeks, and earned about $5,600. In the period of
about 19 months from January 1, 2009, to late July 2010, she would likely have
earned about $91,000.

[84]        
The total of the figures for the period prior to trial ($12,400 + $5,600
+ $91,000) is $109,000.

[85]        
During the period since the accident, Ms. Knight earned about $30,700.
Her lost earnings since the accident are therefore $78,300.

c)       Lost Future Earning Capacity

[86]        
Ms. Knight’s position is that she should be awarded $300,000 for loss of
future earning capacity. The defence argued that she should recover nothing for
lost future earning capacity.

[87]        
The case of Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158,
describes the approach to assessing lost earning capacity, as follows:

[8]        The most basic of those principles is that a
plaintiff is entitled to be put into the position he would have been in but for
the accident so far as money can do that. An award for loss of earning capacity
is based on the recognition that a plaintiff’s capacity to earn income is an
asset which has been taken away: Andrews v. Grand & Toy Alberta Ltd.,
[1978] 2 S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155
(C.A.). Where a plaintiff’s permanent injury limits him in his capacity to
perform certain activities and consequently impairs his income earning
capacity, he is entitled to compensation. What is being compensated is not lost
projected future earnings but the loss or impairment of earning capacity as a
capital asset. In some cases, projections from past earnings may be a useful
factor to consider in valuing the loss but past earnings are not the only
factor to consider.

[9]        Because damage awards are made as lump sums, an award
for loss of future earning capacity must deal to some extent with the
unknowable. The standard of proof to be applied when evaluating hypothetical
events that may affect an award is simple probability, not the balance of
probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458. Possibilities and
probabilities, chances, opportunities, and risks must all be considered, so
long as they are a real and substantial possibility and not mere speculation.
These possibilities are to be given weight according to the percentage chance
they would have happened or will happen.

[10]      The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.)
(Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.) (Q.L.). Guidance as to
what factors may be relevant can be found in Parypa v. Wickware, supra,
at para. 31; Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 126 (C.A.); and Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They
include:

[1]        whether the plaintiff has been
rendered less capable overall from earning income from all types of employment;

[2]        whether the plaintiff is less
marketable or attractive as an employee to potential employers;

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

[4]        whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[11]      The task of the court is to assess damages, not to
calculate them according to some mathematical formula: Mulholland (Guardian
ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment
of a plaintiff’s earning capacity as a capital asset has been established, that
impairment must be valued. The valuation may involve a comparison of the likely
future of the plaintiff if the accident had not happened with the plaintiff’s
likely future after the accident has happened. As a starting point, a trial
judge may determine the present value of the difference between the amounts
earned under those two scenarios. But if this is done, it is not to be the end
of the inquiry: Ryder (Guardian ad litem of) v. Jubbal, [1995] B.C.J.
No. 644 (C.A.) (Q.L.); Parypa v. Wickware, supra. The overall fairness
and reasonableness of the award must be considered taking into account all the
evidence.

…

[18]      The assessment of
damages is a matter of judgment, not calculation.

[88]        
I will begin by considering Ms. Knight’s likely lifetime earnings if the
accident had not occurred.

[89]        
But for the accident, Ms. Knight would likely have worked 3½ to four
days per week as a dental hygienist for the balance of her career.

[90]        
There was no evidence about labour market contingencies. Ms. Knight took
time out from her career around the time her children were born, but wished to
return to full-time work as a dental hygienist, meaning 3½ to 4 days a week.
She was so enthusiastic about her work that she would likely have continued in
it until age 65, although probably working shorter hours towards the end of her
career. There may have been other periods when she would have chosen to work
shorter hours. There may have been periods when full-time work was not
available, but the evidence suggests that would be unusual.

[91]        
An average of about 28 hours per week for 50 weeks is 1,600 hours. At
the rate of $41 per hour, Ms. Knight would likely have earned $57,400 per year.
Using the 2.5% discount rate present value table for future income loss, that
would be about $1,058,000 in future lifetime earnings for uninterrupted work to
age 65.

[92]        
Ms. Knight’s future career is uncertain. Although she loves dental
hygiene work, in light of her increasing pain after working, it is likely that
she will conclude that she cannot continue in clinical practise.

[93]        
Ms. Knight wants to earn income for her family. It is difficult to know
what would be an appropriate career for her. She should probably obtain
vocational counselling. There was no evidence regarding the cost of such
counselling.

[94]        
Ms. Knight is bright and hard-working. However, she is not able to do
sustained computer work without pain. This limits her career options, making
many office jobs unsuitable, and making further education difficult.

[95]        
Ms. Knight found some work at the college, but it is limited and poorly
paid in comparison to her work as a dental hygienist.

[96]        
It is likely that Ms. Knight will either pursue non-clinical hygiene
work, or some other work in the area of health care which does not require the sustained
static postures required by dental hygienists. While Ms. Knight was not
confident about her skills in teaching the difficult pharmacology course, she
might pursue teaching as a career. This may require further education.

[97]        
Another possibility is that Ms. Knight would work two days per week as a
dental hygienist for a period. She is not likely to be able to sustain that for
the balance of her working life.

[98]        
The best estimate of the income Ms. Knight will earn in the balance of
her working life is to consider what she could earn as a dental hygienist
working an average of 14 hours per week, being half the time she worked prior
to the accident, being $28,700 per year.

[99]        
Applying the present value multiplier of 18.4244 to $28,700 results in
about $529,000.

[100]     The
difference between the figure of what Ms. Knight likely would have earned and
likely will earn is $529,000. However, neither calculation took into account
labour market contingencies, such as unavailability of work, time out of the
workforce for travel or illness or to raise grandchildren or care for parents
or the like. Bearing those contingencies in mind, a fair assessment of the
impact on Ms. Knight’s lost future earning capacity is $300,000.

[101]     In Cleeve
v. Gregerson, the court awarded $414,000 for loss of future earning
capacity to a plaintiff who was 21 years old at the time of the accident.  The
damages were assessed after considering the plaintiff’s likely lifetime
earnings as a dental hygienist if she had not been injured, in comparison to
her likely earnings with the injuries.  Awarding $300,000 to Ms. Knight, who was
about 38 years old at the time of her accident, is reasonable in light of the
award in Cleeve.

[102]     Ms. Knight
is entitled to $300,000 for lost future earning capacity.

d)       Cost of Future Care

[103]     Ms.
Knight’s position is that she should be awarded $20,000 for the cost of future
care. The defence position is that she should be awarded $6,000.

[104]     Ms. Knight
is entitled to an award for costs of future care, based on what is reasonably
necessary on the medical evidence to promote her mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78.

[105]     Dr. Ames
gave the opinion that further treatment may include physiotherapy, massage
therapy, and trigger point injections. She suggested that Ms. Knight might
benefit from an assessment and treatment program in Victoria, British Columbia.
Dr. Dommisse recommended a specialized physiotherapy treatment for 6 to 8
months.

[106]     Ms. Knight
is likely to require periodic use of non-prescription pain medication because
of the accident. In addition, it is likely that her pain will flare up
periodically.

[107]     Ms.
Knight’s claim for special damages does not include any physiotherapy expenses
since March 2009, and does not include any massage therapy expenses since
October 2008. This suggests that she is not likely to require such treatments
with much frequency in the future.

[108]     In the
circumstances, a modest award is appropriate. Assuming expenses for 40 years at
the 3.5% discount rate for costs of future care, the multiplier is 21.3551.
Accordingly, an award of $6,000 assumes annual expenses of about $280.

[109]     The
appropriate award for Ms. Knight’s costs of future care arising from the
accident is $6,000.

e)       Lost Housekeeping Capacity

[110]     Ms.
Knight’s position is that she should be awarded $20,000 for loss of
housekeeping capacity. The defence position is that there should not be an
award for lost housekeeping capacity.

[111]     Mr. Kerr
recommended home help of three hours per week for assistance with the heavier
house work including cleaning the bathroom, washing floors and vacuuming. He
also recommended assistance with yard demands and for annual spring and fall
garden preparation and clean-up.

[112]     Assuming
three hours per week of work at $15 per hour, the annual cost would be about
$2,300. Using the multiplier of 21.3551 for 40 years at the 3.5% discount rate,
the present value is about $50,000.

[113]     This
figure must be discounted to recognize contingencies. The significant ones are
that Ms. Knight might have needed such assistance in the future even if the
accident had not occurred, and that others may have done the work for her.

[114]     An award
for lost housekeeping capacity must be assessed, not calculated. The overall
fairness and reasonableness must be considered.

[115]     Ms. Knight
is entitled to $20,000 for her lost housekeeping capacity.

SUMMARY

[116]     Ms. Knight
is entitled to the following award of damages:

a)       $75,000 for non-pecuniary
damages;

b)       $78,300 for past lost earnings;

c)       $300,000 for lost future earning
capacity;

d)       $6,000 for the cost of future
care;

e)       $20,000 for loss of housekeeping
capacity; and

f)        special damages in the agreed
amount of $1,971.69.

[117]    
If either party has a submission to make concerning costs, such party
should, within 60 days of the release of these reasons for judgment, send a
letter to the registry enclosing such submission, with the request that it be
brought to my attention.  The other party has the right to provide a written
responding submission within two weeks, and the initiating party has a right to
provide a reply within one week. If the parties do not have submissions to make
concerning costs, Ms. Knight is entitled to her costs on Scale B, the scale for
matters of ordinary difficulty.

“Madam
Justice Gray”