IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101027

Docket: M96467

Registry:
New Westminster

Between:

Katrina Carr

Plaintiff

And

Randy Reid Simpson

Defendant

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A. Overview

[1]            
On February 19, 2005, the plaintiff, Katrina Carr, sustained multiple
soft-tissue injuries in a high impact motor vehicle collision. She was a
passenger in a minivan which was struck from behind by a Chevrolet Cavalier
driven by the defendant, Randy Simpson. The defendant believes he fell asleep
at the wheel. His liability is admitted.

[2]            
The defendant concedes the plaintiff has entitlement under every claimed
head of damage. The principal matter in issue is the extent of her various
pecuniary losses; in particular, past and future income loss.

B. Evidentiary Synopsis

The plaintiff, pre and post-collision

[3]            
Ms. Carr is a 44-year old woman. She is the divorced mother of
three children: approximate ages 20, 15, and 10. Ms. Carr was, at the time
of the collision, married to John Carr. The marriage broke down shortly after
the collision, in June 2005. During their 18-year marriage Mr. Carr
was the “breadwinner”. He worked long hours, and Ms. Carr was responsible
for child-rearing, homemaking, housekeeping and gardening. By all accounts Ms. Carr
excelled in her roles. Since the marital breakdown, Ms. Carr has remained
the primary caregiver for the children and has not worked outside the home.

[4]            
Ms. Carr left high school in 1982, a few credits short of her high
school diploma. She obtained employment as a full-time care aide for Helping
Hands, working with disabled adults and children. She earned $10/hour. She
married in 1987. After her marriage, Ms. Carr used her equine knowledge and
experience to obtain employment grooming horses and cleaning stables. She
worked six-hour days, six days per week. When she became pregnant with her
first child, she continued the same work for eight months. She returned to this
work when her son was about eight months old. This employment ended in June
1992, when the owners (family members) moved to Clearwater, BC. In March 1995
her second child was born.

[5]            
Ms. Carr testified it was her intention to limit her family to two
children, and to return to the workforce once the younger child had entered
grade one. This plan was delayed, however, by an unexpected pregnancy which led
to the birth of her third child in March 2000. The testimony of family and
friends corroborated Ms. Carr in this regard.

[6]            
In 2000, Mr. Carr started a business supplying plants and other
greenery to the movie industry. Ms. Carr assisted him by taking care of
the books, watering the real plants, and organizing the silk plants.

[7]            
In September 2004, Ms. Carr’s youngest child, Riley, was in pre-school
and she began contemplating her return to the workforce. She completed an
H&R Block tax course which trained her to do personal and small business
tax returns. When she learned she would earn only $8/hour at H&R Block she
opted to complete some tax returns for friends. In January 2005 she was
offered, and accepted, employment as a housecleaner, for 10 hours per week at
$10/hour. Her employer was very impressed with her work; however, the collision
in February 2005 rendered her unable to continue with this job. The plaintiff
has not worked since the collision.

[8]            
In 2005, Ms. Carr’s brother, Harri, was operating a small and
successful concrete business. He testified that prior to the collision he had
offered Ms. Carr, once she was available for work, as much employment as
she wished. The work consisted of pressure-washing, acid-washing, re-planting
and site clean-up; all jobs he considered his sister well able to perform. He
offered a starting wage of $16/hour, eventually leading to $20/hour.

[9]            
In June 2005 Ms. Carr separated from her husband and needed an
income to support herself and to contribute to the support of her children. Ms. Carr
testified that she was interested in working for her brother; however, she was
unable to take his offer of employment due to her injuries. She said she could
have managed working 15 hours per week with the help of friends and family,
until Riley entered grade one in September 2006. Once Riley was in school
full-time, Ms. Carr said she could have managed 25-30 hour work weeks
(five to six hours per day, five days per week) and still met her family’s
needs.

[10]        
Ms. Carr has had the same family physician, Dr. Cordoni, for
26 years. Dr. Cordoni testified that Ms. Carr had very few health
issues prior to the collision. In 2003 Ms. Carr complained to her of a
problem with her right knee, but Dr. Cordoni noted it resolved in six
months without medical intervention. Dr. Cordoni testified that prior to
the collision Ms. Carr had never seen her for headaches or pains in her
neck, back, or shoulder. She was unaware Ms. Carr had seen a chiropractor
in 2002. Ms. Carr said she went to a chiropractor in 2002 because she had
a sore neck; something she attributed to some severe stresses in her life at
the time. Chiropractic records showed that in April 2002 Ms. Carr received
seven treatments, primarily for her neck and upper back, and a final treatment
in November 2002. Ms. Carr said periodically, pre-collision, she suffered
from “stress headaches” which caused her neck and shoulders to ache and her
arms to tingle when she raised them above her head. She said that “every few
years I would get a kink in my neck, but it never stopped me from doing
anything, like gardening, etc.”. She said she would see a chiropractor for a
few sessions and the problem would resolve.

[11]        
Prior to the collision, Ms. Carr’s primary physical activities were
walking, swimming, hiking, housekeeping, and gardening. Since the collision she
says she has been virtually unable to do housework or gardening; the latter a
favoured pastime, and thus a significant loss to her.

[12]        
Friends and family testified to the dramatic changes in Ms. Carr
since the collision. John Carr described his ex-wife, pre-collision, as a nice,
strong, hardworking woman who never complained about anything, including health
issues. She did “everything” in relation to the children, the house, and the
garden. Mr. Carr said that she is, post-collision, slow, unfocused, and
easily frustrated. He noted that “she’s lost her bright sparkling eyes – she’s
a different woman; she never napped before.” He said it is apparent she is in
pain; “she holds her shoulder all day long.”

[13]        
Naomi Dyer prepares tax returns and is familiar with Ms. Carr’s
bookkeeping skills. She described Ms. Carr’s bookkeeping, pre-collision,
as “very well done”. She said it “was a breeze” to do the small business tax
return for John Carr because of Ms. Carr’s good work. After the collision,
Ms. Dyer noted that the quality of Ms. Carr’s work deteriorated:
“even the adding wasn’t good.”

[14]        
Anna McLeod is a close friend of Ms. Carr. She said that,
pre-collision, Ms. Carr was “very capable”: she kept a “gorgeous” garden,
a “beautiful” lawn, and a home that was “well-kept and organized”, without any
help from her husband. She and Ms. Carr were actively involved with their
collective children. Since the collision, Ms. McLeod testified to giving
extensive help to Ms. Carr for all tasks requiring strength (e.g., grocery
shopping, housecleaning, children’s activities). She said Ms. Carr is
always in pain. She recounted an outing to Raleigh Lake with their children,
and said Ms. Carr was suffering so much from a headache and neck and
shoulder pain that she vomited and the outing was cut short.

[15]        
Harri Kujala, Ms. Carr’s brother, testified he and his siblings
come from a family of hard workers. Prior to the collision he considered Ms. Carr
“dependable” and well-suited to working in his concrete business. He said he
discussed this with her prior to the collision and she was excited at the
prospect of doing this work. He noted that Ms. Carr is no longer “happy-go-lucky”.

[16]        
Rona Motz is the woman who, in early 2005, hired Ms. Carr to help
her in her housecleaning business. She said Ms. Carr was eager to work and
would change her plans to make work a priority. She noted Ms. Carr was
punctual, reliable, honest, and did a good job. If Ms. Carr had been able
to continue to work, post-collision, Ms. Motz would have continued to
employ her.

[17]        
Ingrid Kujala is Ms. Carr’s mother. She described Ms. Carr,
pre-collision, as healthy, always working, and very fussy about her home and
garden. After the collision Ms. Kujala noted Ms. Carr “wasn’t doing
great – she’s not a complainer but I could see she wasn’t doing well.” Ms. Kujala
said her daughter is still “likeable and kind” but “she just wants to lie down;
I can see she’s not good; her forehead wrinkles when she’s hurting but she
won’t say anything.”

[18]        
Laurie Wright is a friend of Ms. Carr. She was the front seat
passenger in the minivan at the time of the collision. She described Ms. Carr,
pre-collision, as “bubbly, happy – no complaints.” Post-collision, she has
noted Ms. Carr has been in pain, depressed, and short-tempered.

[19]        
Ms. Woloshyn is an elderly widow who is a former neighbour of Ms. Carr.
She said Ms. Carr is “like a daughter” to her. She recalled that,
pre-collision, Ms. Carr “brought the house and garden into good shape and
kept the lawns nice.” She said Ms. Carr “doesn’t do anything, now – she
can’t.”

[20]        
Nadine Daye is a long-time friend of Ms. Carr. She testified Ms. Carr
was upset her third pregnancy was going to delay her return to the workforce
for another five years. She noted that, post-collision, Ms. Carr does not
have her former strength and stamina (“she would go from morning ‘til night”);
her home is not kept to the same standard; it takes her much longer to do
household tasks; she’s short-tempered with her children; and she has to force
herself to smile.

The collision

[21]        
At the time of the collision, Ms. Carr was seated in the middle
seat of the centre row of seats in a Toyota Previa minivan. The minivan was
stopped at a red light on the Mary Hill Bypass, at the intersection with Pitt
River Road, in the early hours of the morning on Saturday, February 20, 2005. Ms. Carr
was leaning forward to converse with her friends in the front seats. Without
warning, the minivan was struck directly from behind by a Chevrolet Cavalier
driven by Mr. Simpson. The impact pushed the minivan through the
intersection. The Cavalier’s airbags deployed. Both vehicles were “totalled”.

[22]        
Mr. Simpson does not recall approaching Pitt River Road. He
presumes he fell asleep at the wheel of his car. He was the sole occupant. The
speed limit was 70 kmh and he agrees he could have been exceeding this
limit. John Gloslee was an eye-witness to the collision. He was travelling
along the Mary Hill Bypass at an estimated 80 km/h when Mr. Simpson
overtook him. Mr. Gloslee did not see the Cavalier slow down before it
struck the Previa. He described the impact as extreme and directly into the
rear of the minivan without any attempt to stop. He estimated the Cavalier’s
speed at the time of impact as 100 km/h.

[23]        
After the collision, Mr. Gloslee stopped to offer his assistance.
He noted the floor of the Previa was rippled and the seats were disconnected.
He said the Cavalier was “smashed beyond recognition”. He described the
passengers of the van as being “in shock”.

[24]        
Police and ambulance attended. The ambulance took all occupants of the
van to Ridge Meadows Hospital. Ms. Carr was examined and released later
that morning.

Injuries and treatment

[25]        
Within hours of the collision, Ms. Carr complained of headache,
tingling, dizziness, and soreness in the neck, shoulders, knees, and lower
back. Within days, she noticed significant pain in her right thumb. She was
prescribed medications and, in March 2005, she began a course of physiotherapy
which continued, thrice weekly, through August 2005. She used a “theraband” and
an exercise ball at home. She explained she did not do “aerobics” because she
could not bend her left knee until she had surgery 4.5 years after the
collision; however, she said she used a stationary bike, swam, and walked.

[26]        
Ms. Carr said that by the summer of 2005 she was still suffering
from headaches and dizziness, and there was numbness and tingling in her arms.
She was referred to Dr. Keyes. She also had a throbbing pain at the base
of her right thumb and the thumb would not fully extend. She was referred to Dr. French,
and in May 2006 she was diagnosed with ligament damage. She wore a
hand-brace and underwent hand surgery in January 2007. She wore a “soft” cast
for three months and then underwent further physiotherapy for her hand (which
was “stuck in a forward position”). Ms. Carr described the aftermath of
the surgery as “excruciating, once the morphine wore off” and “very sore” after
the pins were removed. The surgery was only partially successful.

[27]        
In September 2006, ICBC ceased paying for physiotherapy and Ms. Carr
noticed an immediate increase in her pain. She began paying for treatments out
of her own pocket. A private exercise program with a physiotherapist was
arranged, and implemented in November and December 2006. In this period Ms. Carr
said she continued to suffer from: (a) neck and shoulder pain (“it starts in my
shoulder; it burns and goes up behind my left ear, where there is a big lump
which is very tight and painful”); (b) thumb pain (“pulsing at the base of the
thumb and coming all the way from my left shoulder”); (c) drooping fingers on
the right hand; (d) constant headaches (“the bad ones caused nausea and I would
end up in bed”); (e) inability to bend the left knee; and, (f) some pain in the
right knee.

[28]        
In the spring of 2007, Ms. Carr was referred to Dr. Pace for
cortisone injections. She found these injections “very painful” and
ineffective.

[29]        
In the fall of 2007, Ms. Carr was referred to Dr. Salvian. Ms. Carr
said Dr. Salvian discussed the removal of one of her ribs as a treatment
option. She was sent home with literature on thoracic outlet syndrome (TOS) and
given a prescription for nerve pain (Lyrica). She tried the medication but said
it made her feel “out of it, moody, and cranky”, so she stopped taking it. In
relation to the option of surgery, Ms. Carr testified she does not want to
undergo this surgery because her understanding is it would only reduce numbness
and tingling; not neck pain and headaches.

[30]        
In January 2008, Ms. Carr tried Botox treatments on the
recommendations of Drs. Robinson and O’Connor. She had six injections
(which she described as very painful) and found that it only calmed the burning
in her shoulder and that the relief was short-lived; eight weeks later the
burning returned.

[31]        
Ms. Carr maintained there was no improvement in her symptoms
throughout 2008. She described the pain as constant.

[32]        
In May 2009, Ms. Carr was referred to Dr. Viscontas for her
left knee symptoms. In June 2009, she underwent 1.5 hours of knee surgery
followed by rehabilitation using an exercise bike. She said her knee is “pretty
good, now” in relation to bending.

[33]        
Ms. Carr said that funding for physiotherapy was, again, withdrawn
by March 2009; however, she continued to attend twice weekly and pay for
the sessions herself.

[34]        
In January 2010, Ms. Carr was referred to Dr. Anderson for a
psychiatric assessment. She was diagnosed with a depressive disorder arising
from chronic pain, and Dr. Anderson recommended she attend a pain clinic.
Another psychiatrist, Dr. Solomons, disagreed with Dr. Anderson’s
diagnosis and found no clinical depression.

[35]        
At the time of trial, Ms. Carr said that she was continuing with
physiotherapy and undergoing acupuncture treatments, both at her own expense.
She takes “Tylenol 3” most days, for pain, and “Gabapentin” to help her sleep.
She testified to:

(a) continuing shoulder pain and burning (“I can work for
about ten minutes before my shoulder starts bothering me”);

(b) an inability to kneel on her right knee (a problem when
gardening);

(c) an inability to move her fingers (e.g., while using a
keyboard) without a burning sensation in her left shoulder (Dr. French has
recommended a $60 brace);

(d) an inability to hold a pen or knife for more than a few
minutes without a sharp pain in the base of her right thumb;

(e) an inability to do anything requiring physical strength
in her upper body (“I grocery shop with my friend, Anna; she pushes the
cart, loads and unloads my groceries from my van”);

(f) tenderness in the lower back and right hip (“if I sit too
long it starts burning”);

(g) constant tingling (“I always have tingling; if I
move my shoulders around it starts going crazy in my back at the base of my
neck”);

(h) dizziness (“if I look up I get dizzy; if I look down I
get a pain across my neck”); and,

(i) trapezius muscle tightness
(“it is always there, but it gets worse when I use my arms”).

Expert Evidence: Medical

[36]        
Gordon Robinson is a neurologist who specializes in headache disorders.
He examined Ms. Carr on November 9, 2007. He found her history and
examination was consistent with a diagnosis of chronic headache related to neck
injury. He opined that Ms. Carr will have headaches and neck pain for many
years to come; probably “indefinitely”. He regarded her as “at risk” for a
level of chronic disability that would not allow her to return to the workforce.
He said that treatment could be difficult; that physical therapy is not
curative and medications are often unhelpful. He did not think that Botox
injections would help Ms. Carr.

[37]        
Dr. Robinson noted that there is a “long observed clinical
association between upper neck injury and chronic headache of a migrainous
variety.” In his report he said:

Although most patients recover
within weeks to months there is a substantial minority (10-15%) that continued
to have headache neck pain for years. Most at risk for chronic difficulties are
females, probably due to their longer, more slender neck with less developed
musculature. Other negative prognostic factors include patients who were hit
without warning, while the head was turned, the presence of a previous neck
injury, underlying degenerative neck disease and/or advanced age. (Medical
report of Dr. Robertson, dated November 13, 2007, p. 8)

[38]        
In respect of Ms. Carr’s post-collision symptoms, Dr. Robinson
testified that he placed “no importance” on the neck “kinks” Ms. Carr had
in 2002.

[39]        
Russell O’Connor is a physiatrist who examined Ms. Carr in
September 2005, July 2006, September 2007, January 2008, February 2008, and
November 2008. In November 2008 he found Ms. Carr was suffering from: (a)
left neck, shoulder, arm and hand pain; (b) neck pain consistent with a
thoracic outlet problem; (c) right-sided thumb pain; (d) bilateral, left
greater than right, knee pain; (e) low back and right hip pain; (f) headaches;
and, (g) temporomandibular joint pain.

[40]        
Dr. O’Connor diagnosed Ms. Carr with thoracic outlet syndrome.
He believes she was predisposed to develop this syndrome; a belief founded
in a history of neck kinks and numbness when she raised her arms over her head.
He opines, however, that the collision was “the main cause of a
significant aggravation and deterioration in her overall function.” He
testified that one of the hallmarks of thoracic outlet syndrome is numbness and
tingling in the fingers within a minute of holding the arms above one’s head.
He said that a classic symptom is a pain in the shoulder which travels down the
arm, into the hand, and causes tingling fingers.

[41]        
Dr. O’Connor also diagnosed: (a) arthritis of her thumb and
residual joint laxity, causing permanent restrictions and persistent chronic
pain; (b) meniscus injury to the left knee, requiring surgery; (c) severe and
mild headaches; (d) chronic low back pain; (e) right hip trochanteric bursitis
which should improve with steroid injections and hip strengthening; and, (f)
anxiety.

[42]        
In relation to the arthritis, Dr. O’Connor said there is no other
probable cause than the collision. He described the injury as “punch-type” and “traumatic”.

[43]        
He noted that the rehabilitation process seemed to trigger Ms. Carr’s
hip pain, but that did not mean the collision was not the cause of the pain. He
distinguished her chronic pain from the sort of transitory pains one might have
from “working out”.

[44]        
Dr. O’Connor described Ms. Carr’s disability as follows:

The combination of her
above-mentioned problems has led to an overall decline in her global
functioning, where she is unable to perform repetitive activities or work in a
competitive work environment, even at a sedentary level, at present, given the
degree of her symptoms and limitations in the use of both her left and right
arms. She is limited with duties around the home and these restrictions, in my
opinion, will be permanent. (Medical report of Dr. O’Connor, dated
November 22, 2008, p. 7)

[45]        
In relation to Ms. Carr’s prognosis, Dr. O’Connor said:

The duration of her symptoms to date, now approaching three
and a half to four years, indicate that it is more likely than not that her
symptoms are going to persist at the present level. There may be some
improvement of her left shoulder, neck and arm symptoms with thoracic outlet
surgery and of her left knee problems with further surgery. However, it is my
experience that most patients still have limitations with repetitive activities
and overhead reach even after thoracic outlet surgery. She may be able to
manage with lighter duty sedentary work after surgery but it is too early to
determine this at present.

It is my expectation that she is going to require surgery for
her left knee. She will probably be able to get by without having surgery on
her right but there is approximately a 10% chance that she may require this as
well. She is more likely than not to require further surgery for her right
thumb. I do not believe any plans are made for surgery on the wrist at all.

She is at increased risk for developing further degenerative
changes in the thumb in particular with the passage of time.

The combination of her multiple
chronic painful conditions put her at increased risk of developing a more
full-blown depression or troubles with mood or anxiety difficulties, which is
quite common in patients with chronic pain. She may have had a predisposition
for this but the motor vehicle accident has aggravated this problem and made it
more likely than not that she is going to struggle in a more significant way
with these types of problems. (Medical report of Dr. O’Connor, dated
November 22, 2008, p. 8)

[46]        
Dr. O’Connor recommended knee surgery, a knee-strengthening
program, a trial of facet joint blocks, and Botox injections.

[47]        
In cross-examination, Dr. O’Connor was questioned about a possible
“secondary gain” motivation of Ms. Carr. In this regard he said he saw
nothing which suggested Ms. Carr was feigning pain: no discrepancies,
inconsistent medical examination findings, or inconsistent accounts from Ms. Carr
to clinicians.

[48]        
Stephen Anderson is a psychiatrist who examined Ms. Carr on January
18, 2010. He diagnosed Ms. Carr as suffering from a chronic major
depressive disorder of moderate severity, arising from physical, cognitive, and
emotional difficulties caused by the collision. He opined that emotional
factors are likely interacting with physical factors to create Ms. Carr’s
pain condition. He said:

In Ms. Carr’s case she has
likely been caught up in a vicious cycle of chronic pain disorder whereby
physical and emotional factors are interacting to create her clinical picture.
When Ms. Carr is under increased stress she often experiences increased
neck, shoulder, and headache pain. However, there is no evidence that emotional
factors are playing a significant role in exacerbating her back pain, knee pain
or right thumb symptoms. (Medical report of Dr. Anderson, dated
January 25, 2010, p. 4)

[49]        
Dr. Anderson opined that Ms. Carr “would not have developed
her present constellation of physical, cognitive, and emotional difficulties if
she had not been injured in the MVA.” She has, as a result, experienced “a
marked decrease in the overall quality of her life” and is “not likely
employable due to the extent of her ongoing physical and emotional difficulties.”

[50]        
Dr. Anderson recommends: (a) a “comprehensive multidisciplinary
pain clinic” because it would teach her to cope with pain and not make it the
primary focus of her life “as it is now”; (b) anti-depressant and pain
medications, and suggests she may be a suitable candidate for “medical”
marijuana; (c) 20 sessions of cognitive-behavioural therapy; (d) a supervised
aerobic exercise program; and, (e) involvement of an occupational
therapist.

[51]        
Dr. Anderson’s long-term prognosis for Ms. Carr, from a
psychiatric perspective, is guarded: “she will not likely return to her
pre-morbid level of emotional functioning as long as she has chronic pain and
functional limitations.”

[52]        
In cross-examination, Dr. Anderson was asked about pre-collision
depression and he said “as far as I could see, Ms. Carr did not have a
major depressive disorder until after the MVA.” He was also questioned about
signs of malingering and secondary gain, and said he saw no evidence or signs
of such. He noted Ms. Carr scored 28/30 on a cognitive functioning test; a
very high score for a malingerer to achieve. In relation to pain clinics, he
did not favour the one at St. Paul’s Hospital over the Vancouver or
Columbia pain clinics, because it was not as comprehensive as the others and it
had a one-to-two year waiting list.

[53]        
Rodney French is a plastic and reconstructive surgeon who, on January 4,
2007, performed surgery on Ms. Carr’s right hand. On February 27, 2007, he
removed the “retained hardware”. He reported, on May 10, 2007, Ms. Carr
had “significantly less laxity in the thumb and CMC joint, now” and “for the
first time in quite a while, the patient had no pain in her thumb base.” By
July 16, 2007, Dr. French found Ms. Carr had a “slight ulnar drift to
the carpus, but no pain or instability in the ulnar side of the wrist.” The
surgery was not a complete success. Dr. French said: “I had hoped for a
home run, but I suspect that the joint has loosened over time and is sliding
out.”

[54]        
Dr. French stated that Ms. Carr’s wrist injury was
“exceedingly difficult to diagnose, requiring almost 20 months from the time of
injury to fully elucidate the pathology and determine a course of action.” In
relation to Ms. Carr’s prognosis, he said:

It is difficult to state with any certainty at the current
time whether or not the surgery will have a lasting impact for her and
completely alleviate her symptoms. I would anticipate that there is a greater
than 50% chance within the next ten years that she will require some form of
further surgery to her right thumb base. This would likely present as further
degenerative osteoarthritis, which may necessitate replacement of the CMC
joint. While she has done well to date with her most recent surgery, the road
to progressive degenerative osteoarthritis in the thumb CMC joint is most often
a relentless one. …

The ulnar side of Ms. Carr’s
wrist also sustained trauma. … Should her thumb symptoms resolve on a more
permanent basis and she begins using the hand for more of her pre-accident
activities, she may note some limitations due to this injury. We have elected
to defer any treatment until such time as she notes any such functional
limitations due to the inherent risks of surgery in this area. (Medical report
of Dr. French, dated July 16, 2007, p. 3)

[55]        
Anthony Salvian is a vascular surgeon who examined Ms. Carr in
September 2007 and September 2008. His focus was on Ms. Carr’s complaints
of left shoulder-blade pain, numbness and tingling radiating down the arms and
into the hands, severe neck pain, and headaches. Dr. Salvian made the
following diagnosis:

Ms. Carr has ongoing soft tissue myofascial pain of the
neck and upper back and muscular headache. I would defer to the opinions of Dr. Robinson
and Dr. O’Connor in that regard. I have seen, however, hundreds of
patients like Ms. Carr and I find this to be typical chronic myofascial
pain due to soft tissue injury of the neck.

Ms. Carr has ongoing bilateral “lower plexus” type
thoracic outlet syndrome leading to the chronic neck pain, shoulder discomfort
and numbness and tingling radiating down to the fourth and fifth fingers of
both hands. This is related to soft tissue irritation of the nerves of the
brachial plexus in the thoracic outlet. This is due to underlying scalene
muscle injury with scarring and shortening and spasm.

She has not been able to work and she is not doing very much
and despite this she continues to be significantly symptomatic.

The physical examination that I carried out, again, is
positive for findings of thoracic outlet syndrome with tenderness and
reproduction of symptoms with palpation over the brachial plexus and scalene
muscles. She had positive thoracic outlet testing with straight arm elevation
and “hold up” manoeuvre, as well as stress test manoeuvres, and negative
testing for ulnar entrapment or carpal tunnel syndrome.

Ms. Carr has ongoing
symptoms in the right thumb. This is not my area of expertise and I would defer
to the opinions of Dr. French and Dr. O’Connor in that regard,
although it does contribute to some degree to her disability. (Medical report
of Dr. Salvian, dated November 14, 2008, pp. 9-10)

[56]        
In relation to causation, Dr. Salvian opined that Ms. Carr’s
bilateral thoracic outlet syndrome and ongoing symptoms of neck pain, upper
back pain, and headache are due to injury to the neck from flexion and
extension from the impact of the collision.

[57]        
In relation to prognosis and treatment, Dr. Salvian said, inter
alia:

I believe the fact that [Ms. Carr] has made no
improvement despite maximal medical therapy recommended by myself and Dr. O’Connor,
for the past year, would make it very unlikely that she would have any
significant improvement in the future.

At this time I believe that she is significantly disabled and
may need to be considered for decompression of the thoracic outlet.

This would involve transaxillary resection of the first rib
with clearing of the fibrous bands and scalene muscles and neurolyisis of the
brachial plexus. …

I would think that the surgery likely would improve the
numbness and tingling of her hand, which occurs with use and elevation. It
would likely not have any significant benefit for her headache or neck pain, which
are related to myofascial injury.

Furthermore, it is possible that she may require surgery on
both arms. …

At this time I believe that she
should be seen by Dr. Bill McDonald or Dr. May Ong at the St.
Paul’s Pain Clinic, who have significant experience managing chronic pain
patients. (Medical report of Dr. Salvian, dated November 14, 2008, pp.
11-13)

[58]        
Dr. Salvian believes Ms. Carr’s injuries preclude her from any
prolonged driving, typing, heavy lifting, or significant overhead work, without
pain. He concluded she is disabled; “any retraining or job consideration would
have to acknowledge that she could not use her arms for prolonged repetitive
activities, heavy lifting, or overhead use”, and “prolonged sitting and
driving” would also be problematic.

[59]        
In cross-examination, Dr. Salvian agreed it was “possible”, based
upon the symptoms of tingling that Ms. Carr reported to her chiropractor
in 2002, Ms. Carr had thoracic outlet syndrome before the collision. He
could not say more because of the absence of a medical examination for it. He
opined it was “probable” that, prior to the collision, she had “threshold for
the development of thoracic outlet syndrome.” He said conventional
physiotherapy does not work for patients with thoracic outlet syndrome: “the more
a patient ‘pushes through the pain’ the worse they get.” Patients tend to get
depressed and gain weight. In relation to the successfulness of surgery, he
said that success with Botox injections augers well.

[60]        
Gerard McKenzie is an orthopaedic surgeon who saw Ms. Carr in
October 2006, November 2008, and December 2009. In his final report
dictated December 9, 2009, he said:

It is now almost five years from the date of this lady’s
accident. The only significant change since I last saw here was in her left
knee joint. She is much better now with her surgery. …

…

She is having ongoing pain in her neck, upper back and
trapezius muscles. It remains my opinion that that is likely myofascial in
nature. Every time I have seen her she has had fairly diffuse pain. In view of
this I don’t think she is a candidate for facet joint blocks.

As it is almost five years from the time of the accident in
my opinion the prognosis for the resolution of this pain is poor. It remains my
opinion that the causation of her neck, upper back and trapezius pain is the
motor vehicle accident. She did have some previous pain in this area on an
intermittent basis. In my opinion if she had not had this motor vehicle
accident she likely would have continued on with the same pattern of pain which
was intermittent, minimally symptomatic and not causing any disability or
impairment.

She is having some ongoing right hand and wrist pain. In my
opinion she continues to have ongoing persistent carpometacarpal pain. She was
asymptomatic prior to this accident. In my opinion were it not for the motor
vehicle accident she likely would have remained asymptomatic for a number of
years and perhaps permanently. …

… she likely has some problems with her brachial plexis …
if she does not have surgery then these symptoms are likely to continue for the
foreseeable future in view of the amount of time that has passed.

…

… she has non-specific lower back pain. …

In my opinion the causation of her lower back pain is her
motor vehicle accident. …

In view of the amount of time
that has passed this lady has certainly gone on to develop chronic pain
particularly in the neck and lower back. She likely has some ongoing anxiety
and depression which could be contributing to her overall pain experience. In my
opinion the anxiety and depression are not causing the pain but certainly could
be impacting on her pain. … (pp. 8-9)

[61]        
Dr. McKenzie testified that while he believes the collision caused Ms. Carr’s
lower back pain, he thinks it only aggravated a pre-existing neck pain.

[62]        
Ms. Carr gained weight after the collision. In this regard Dr. McKenzie
stated:

A weight gain doesn’t imply a
lack of trying to exercise. It is very difficult to exercise if one is in pain
and may be suffering from the side-effects of medications (e.g., drowsiness).

[63]        
Darius Viskontas is an orthopaedic surgeon who performed surgery on Ms. Carr’s
left knee on June 3, 2009. He performed a partial medial meniscectomy of the
posterior horn to resect an intrasubstance cleavage tear. The operation was
successful and Ms. Carr regained full range of motion. Dr. Viskontas
reported that Ms. Carr is now at risk of developing future degenerative
changes; however, due to the significant variability of progression of
degenerative osteoarthritis, he said it was difficult to give a prognosis as to
whether further treatment may be necessary.

[64]        
Teresa Cordoni is a family physician who has treated Ms. Carr for
the past 25 years. She examined Ms. Carr many times, post-collision,
and referred her to various specialists. In her report dated December 7, 2009,
she summarized her assessment of Ms. Carr as follows:

In summary, there has been very
little, if any, change in her condition since my last [November 2008] medical
legal report. The exception to this is that she did have an arthroscopy on her
left knee done on June 3, 2009, and she has had good resolution of her knee
pain after the surgery. She continues to have chronic neck and upper back pain,
chronic headaches, and chronic pain in her right wrist and hand. These conditions
have been well outlined in the past by a variety of specialists, including
Dr Salvian and Dr O’Connor, and I would agree with the general sense
that she is going to have ongoing and chronic issues in these areas. Currently
she is struggling with many aspects of daily life, including recreational
activities, gardening, housework, and certainly has extremely limited ability
to do any kind of functional work, either in or out of the house. I do not see
that any of these issues are going to significantly change in the future. (pp.
2-3)

[65]        
In relation to Dr. Cordoni’s knowledge of Ms. Carr as a
long-time patient, she said:

I’ve treated Ms. Carr for 25
years. I’ve noted that since the accident she’s become overwhelmed with
everything. Prior the accident she was stoic, and a non-complainer.

[66]        
The defendant tendered evidence from three medical experts:
Drs. Solomons, Woolfenden, and Gropper.

[67]        
Kevin Solomons is a psychiatrist retained by the defendant. He examined Ms. Carr
on December 18, 2009. He found that Ms. Carr did not sustain a brain
injury in the collision, or develop any neuro-cognitive deficits/disabilities
or psychiatric disorders/conditions/complications as a result of the collision.
He concluded that no psychiatric treatment was required.

[68]        
In cross-examination, Dr. Solomons said that he “canvassed the
whole issue of depression and concluded that [Ms. Carr] did not suffer
from clinical depression; that it was only colloquial depression.” He noted he
did not believe Ms. Carr was malingering or feigning symptoms.

[69]        
He agreed that the Beck checklist is a recognized diagnostic tool for
the diagnosis of clinical depression; however, it is one he generally does not
use, and specifically did not employ in his examination of Ms. Carr. When
he was questioned about various checklist factors, Dr. Solomons agreed
that he thought Ms. Carr had “somewhat restricted affect”; that he did not
ask her if she suffered from “reduced libido”; that in relation to
“irritability” he understood that her children said she was “cranky” and “not
as happy-go-lucky as she used to be”; that in relation to “reduced cognitive
functioning” her children said her concentration was not as good as it used to
be; that in relation to “insomnia” she did not report a persistent sleep
disturbance, but said she takes medication to help her sleep; that in relation
to “self-esteem” she said she feels “useless and helpless”; and, that in
relation to “suicidal ideation” she had expressed the intention to “drive off a
bridge”.

[70]        
After the foregoing line of questioning, Dr. Solomons confirmed his
opinion that Ms. Carr did not suffer from a depressive illness or
disorder, but added “it wouldn’t surprise me that she was found to have
moderate depression.”

[71]        
Andrew Woolfenden is a neurologist who examined Ms. Carr on December 22,
2009. In his report he stated he did not “entirely” agree with Dr. Salvian’s
diagnosis of chronic post-traumatic thoracic outlet syndrome. He did, however,
believe Ms. Carr has some of the risk factors (extreme pain at onset,
a history of neck pain, and some psychological dysfunction) for “prolonged
pain post-strain injury.” He said:

In my opinion, Ms. Carr’s
sensory complaints in her upper extremities are the result of poorly understood
mechanisms which probably include compression of the brachial plexus at the
thoracic outlet (due to a cervical strain), the central effects of chronic
pain, and psychological factors. … (p. 4)

[72]        
Dr. Woolfenden stated psychological dysfunction is a significant
risk factor for persistent pain. In relation to Ms. Carr, he said:

In my opinion, Ms. Carr has
psychological dysfunction. She has symptoms of moderate depression (as see on
her Beck Depression Inventory II Scale Score). Further, in my opinion, numbness
in her arms caused by neck (i.e. C1) palpation and the almost immediate
development of sensory complaints in her arms with neck extension and arm
movement is likely, in part, psychologically based (meaning that there is
probably a psychological influence on her physical symptomatology) … (pp.
5-6)

[73]        
In relation to prognosis, Dr. Woolfenden said:

It is now four years since Ms. Carr
suffered her injuries. At this point in time it is likely that she will note
some degree of pain in her neck, shoulders, and back, long-term. However, with
a better exercise program, it is likely there will be some further improvement
in the severity of her symptoms. (p. 6)

[74]        
Dr. Woolfenden saw no signs of malingering or feigning. In this
regard he said:

In my opinion, Ms. Carr’s
post-accident symptoms including pain, depressive symptoms, and sensory
disturbance appear genuine. There is no evidence in the records reviewed or on
my examination of non-organic findings. Her neck and upper back pain is more
severe than her low back pain. (p. 6)

[75]        
The only treatment Dr. Woolfenden could recommend for Ms. Carr
was an active exercise program. He recommended she be assessed by someone with
expertise in the psychological dysfunction of pain.

[76]        
In cross-examination, Dr. Woolfenden said he is not a neurologist
who denies the existence of thoracic outlet syndrome. He emphasized he merely
did not “wholly” agree with Dr. Salvian. He said his belief is that Ms. Carr
does not just have thoracic outlet syndrome; such a diagnosis would not
explain all her symptoms. In relation to exercise as treatment, he agreed that
if Ms. Carr had been using an exercise ball and theraband, and doing so
“properly and for long enough” without results, then it is unlikely she will
improve further. He agreed Ms. Carr would be at risk of aggravating
thoracic outlet syndrome if she did overhead exercises. In relation to
psychological dysfunction, he agreed it may develop from chronic pain. He said
he tested Ms. Carr on the Beck Depression Inventory II Scale and that she
scored “27”: an indication of moderate depressive symptoms. He stated he had
reviewed Russell McNeil’s functional capacity report and John Lawless’s
vocational report, and found the conclusions therein to be “consistent and
sensible”.

[77]        
Peter Gropper is an orthopaedic surgeon who examined Ms. Carr on
August 24, 2009. He examined Ms. Carr’s right hand after the surgery
performed by Dr. French. He opined that the injury to Ms. Carr’s
right thumb was caused by the collision. In relation to post-operative
impairment, he said she scored 38/100 for activities of daily living. He noted
a slight prominence of the distal ulna over the right wrist and mild tenderness
over the triangular fibrocartilage. He said Ms. Carr is at “mild to
moderate” risk of progressive degenerative arthritis within this joint and as a
result of this injury, and “activities that require repetitive and forceful
pinch may accelerate the degenerative arthritis related to the basal joint of
her thumb.”

[78]        
Dr. Gropper recommended symptomatic pain control with
anti-inflammatory medications and a thumb brace support “as required for the
level of activity anticipated.” He concluded Ms. Carr may require a second
operation for joint reconstruction, with an ensuing three-to-four month
recovery period requiring a splint and rehabilitative therapy.

Expert Evidence; Non-medical

[79]        
Natalie Allende is an occupational therapist who examined Ms. Carr
on December 17, 2009, and prepared a report relating to future care costs. She
made recommendations for “specific services and equipment to restore or compensate
for [Ms. Carr’s] reduced functional capacities.” In the context of her
comprehensive report, Ms. Allende stated:

My assessment of Ms. Carr
confirms her self-reports of difficulty with occupational performance areas,
including self management, self care, home management, yard work, home
maintenance, work activities, and recreation. (p. 17)

[80]        
Ms. Allende’s examination findings for Ms. Carr included: (a)
decreased cervical spine extension; (b) compromised right thumb extension; (c)
normal muscle strength except in left hip extension; (d) poor standing and
sitting posture; (e) very poor grip strength, bilaterally; (f) significantly
reduced tolerance to sitting with immediate signs of discomfort; and, (g)
reduced tolerance for stooping, bending, crouching, kneeling, and reaching. In
cross-examination, Ms. Allende agreed it was “possible” Ms. Carr’s
poor performance on some of the tests administered may have been due a
de-conditioned physical state.

[81]        
Ms. Allende based her recommendations upon a review of medical and
clinical documents supplied, an interview with Ms. Carr, a physical
assessment of Ms. Carr in her home, an interview with physiotherapist
Renuka Preocanin, and Ms. Allende’s own evaluation of Ms. Carr. Her
recommendations for future services, equipment, supplies, and “future
considerations”, and their associated present-day costs are extensive. They are
annexed hereto, as Appendix “A”.

[82]        
Russell McNeil is physiotherapist who assessed Ms. Carr in March
2010 for the purpose of preparing a functional capacity evaluation. He found Ms. Carr
“demonstrated the capacity to perform activity that requires
sedentary-to-modified light-level strength.” He noted she showed restrictions
in her mobility and overall endurance. In relation to vocations, Mr. McNeil
concluded: (a) Ms. Carr lacked the capacity to perform the critical
physical demands of housecleaner; and, (b) while Ms. Carr would be capable
of part-time work as a bookkeeper, she would have difficulty maintaining a
“competitively employable” work pace. In relation to avocations, Mr. McNeil
found Ms. Carr had “demonstrated restrictions in her capacity to perform
daily housework.” In cross-examination, Mr. McNeil agreed his opinions
were based, in part, on Ms. Carr’s reporting of symptoms in the course of
his assessment.

[83]        
John Lawless is a vocational consultant who saw Ms. Carr in
November 2008, for the purpose of preparing a vocational assessment report. Mr. Lawless
performed a variety of tests upon Ms. Carr. He found her literacy and
numeracy skills were at a high school graduation level, and her test scores
boded well for retraining. In relation to the specific capacity to learn the
skills required for various occupations, however, Ms. Carr’s test scores
were in the “below average” and “very low” range. In relation to “finger
dexterity” and “manual dexterity” Ms. Carr had “extremely low” scores. Mr. Lawless
concluded that Ms. Carr has “little capacity for formal retraining and is
only suited for less skilled occupations.” As for vocational interests, Mr. Lawless
found Ms. Carr would be most satisfied doing “conventional” work: regular,
routine, and detail-oriented.

[84]        
In relation to Ms. Carr’s pre-injury vocational prospects, Mr. Lawless
said:

… I could have foreseen her
continuing to work as she was from home for a time, and later properly access a
range of occupations. This could have included more of the home cleaning and
babysitting she was doing then, either of which she might have parlayed into a
regular, full-time position. With a modicum of formal training and
qualification she might also have become a Home Care Worker … or some kind of
Health Care Attendant. Other more labourious jobs, like Stable Hand and
Landscaping Labourer (in her brother’s company) would also have been feasible.
… (p. 8)

[85]        
Mr. Lawless opined that Ms. Carr’s injuries have had “a
serious impact on her capacity to work, particularly since she wasn’t firmly
attached to the workforce to begin with.” Of her post-injury prospects, Mr. Lawless
said:

… it is my opinion that Ms. Carr
has very little vocational potential. In practical terms she may be able to
handle some clerical work, and perhaps even a bit of babysitting, provided she
worked from home and could spread her duties over many hours. I don’t think she
can secure formal positions like Accounting Clerks nor train for ones like
Bookkeepers, and she’s restricted from heavier jobs like House Cleaners and
Landscaping Labourers. I expect her vocational future will most likely resemble
her recent past, which is marginal employment. I don’t think she will ever
realize her former plan of returning to the workforce full-time once her
children were older. (p. 10)

[86]        
In cross-examination, Mr. Lawless stated the absences of a grade 12
diploma and work experience are “fairly common” and would not pose
“insurmountable barriers” for Ms. Carr. In his view, it is Ms. Carr’s
injuries which “put her out of the game.” He added: “I don’t think she will
find sympathetic employers, such as her (former) husband.”

[87]        
Stephen Bush is a chartered accountant who prepared a report regarding
past income loss for Ms. Carr, for the period between the date of the
collision and the date of trial. Mr. Bush calculated Ms. Carr’s loss
(after tax) to be $84,492.

[88]        
For the purpose of his calculation, Mr. Bush made the following assumptions:

(a) Ms. Carr would have continued to work as a
housecleaner (for 10 hours per week, at $10 per hour) until her marriage
breakdown at the end of May 2005;

(b) in June 2005, Ms. Carr would have begun employment
with her brother (15 hours per week, at $16 per hour) until her youngest child
was in school, in September 2006;

(c) until December 31, 2006 Ms. Carr would work 20 hours
per week;

(d) in 2007 Ms. Carr would work 25 hours per week;

(e) that in 2008, 2009, and 2010 she would work 30 hours per
week;

(f) she would enjoy pay increases of $1 per hour each year;

(g) she would take two weeks off in the summer, two weeks off
in December, and work about half her normal hours in December and January (the
slow months for landscaping);

(h) Ms. Carr would have suitable daycare in place; and

(i) the tax calculations are
based on the entire award being taxed using 2006 marginal tax rates and EI
rates on the basis that the pre-tax loss is the only income earned for income
tax purposes in that year.

[89]        
Mr. Bush’s table of past income loss calculation was entered as
Exhibit 8 at trial, and is annexed to this judgment as Appendix “B.”

[90]        
Robert Carson is an economist whose reports addressed the calculation of
the present value of: (a) any pattern of future annual costs of care which may
be incurred by Ms. Carr and, (b) any pattern of future earnings or loss of
earnings for Ms. Carr: see Appendices “C” and “D”, respectively.

Other evidence

[91]        
John Casey is a chiropractor who treated Ms. Carr in 2002. He
testified that he did not recall Ms. Carr as a patient. He referred to his
clinical notes to refresh his memory about the course of treatment given to Ms. Carr.
He said that in April 2002 Ms. Carr reported that she had “occasional
tingling in her left arm with overhead work”; that she complained of “high”
stress; and, that her chief physical complaints were for pain in her upper back
and neck. He treated Ms. Carr’s neck and upper back for restricted range
of motion on April 6, 9, 10, 12, 16, 19, and 27, 2002. He noted gradual
improvement throughout her therapy, and on the 27th he wrote “better, overall”.

[92]        
Mr. Casey last saw Ms. Carr on November 1, 2002. At this visit
she reported that she had been doing “great” but had suffered with a sore neck
and headaches in the past three to four days. Mr. Casey suggested that Ms. Carr
return in one week for further treatment; however, she did not do so.

[93]        
Kari Barnett is a kinesiologist who treated Ms. Carr three times
during her 18‑session post-collision rehabilitation program in June and
July 2005. Ms. Barnett prepared the final report. Ms. Barnett
testified she did not request any further treatment sessions for Ms. Carr.
In this regard Ms. Barnett said: “if a client has demonstrated improvement
and is able to return to most activities or work, or if she has plateaued, then
further sessions are not requested.”

[94]        
In her report Ms. Barnett wrote: “Ms. Carr is physically able
to return to full-time work in a light labour environment, without undue pain
or discomfort.” When questioned about this entry, she said: “I think I may have
overstated this; perhaps, part-time work.” In cross-examination, Ms. Barnett
agreed it would have been preferable for Ingrid (the “primary treater”) to have
written the final report. She also agreed Ms. Carr presented as a person
highly motivated to recover from her injuries and, when she saw Ms. Carr
on July 28, 2005, she reported “continuing pain”.

[95]        
The plaintiff’s “schedule of special damages” was entered as exhibit #4
at trial. This collection of receipts and records of payment showed a total
expenditure of $15,418.62.

[96]        
The defendant tendered four surreptitious video recordings of Ms. Carr:
the first taken on July 3, 2009, at a Tim Horton’s drive-through take-out
window; the second taken on July 9, 2009, while Ms. Carr was seated in the
driver’s seat of a vehicle and talking on her cell phone; the third taken on
July 23, 2009, while Ms. Carr was pumping gas into a vehicle; and, the
fourth taken outside her residence while she spoke on her cell phone.

C. Findings and Analysis

[97]        
During the course of the trial the live issues shifted and narrowed;
accordingly, a useful starting point to the analysis herein is the defence
position in its closing submissions. It discloses concessions regarding entitlement
to all heads of damages, but places the quantum of each in issue on various
bases. The issues from the defence perspective are summarized as follows:

(a) Has the plaintiff proved her
present complaints were caused by the collision? The defence concedes the
plaintiff sustained some injuries in the collision and that the plaintiff is
not feigning her symptoms; however, the defence submits “there are unconscious
factors at play, such as issues of secondary gain, which have resulted in unconscious
learned pain behaviour”, and which have prolonged her recovery and contributed
to her perception of her pain and physical limitations. The defence also
submits the plaintiff suffered from a “crumbling skull”, (pre-collision neck
and back pain, and symptoms of TOS) which ought to reduce her awards for
non-pecuniary and future income-earning capacity losses by 15%.

(b) Did the plaintiff fail to
mitigate her damages? The defence submits an appropriate range of general
damages would be $55,000-$85,000, but such ought to be reduced by 20-25% for
the plaintiff’s failure to mitigate (by not following doctors’ advice).

(c) Has the plaintiff proved a
past income loss greater than $25,000? The defence submits that the
plaintiff would not have considered, for reasons unrelated to her injuries,
employment until the summer of 2007; and, that even if she took employment with
her brother she would not have worked as many hours as she claims because of
childcare responsibilities and the seasonal nature of the work. The defence
further submits the plaintiff failed to mitigate her losses by not taking any
employment, including a receptionist job offered to her in early 2006. Taking
these factors into account, the award should be no greater than $25,000.

(d) Has the plaintiff proved a
loss of future income earning capacity greater than $45,000-$48,000? The
defence concedes the plaintiff has lost a capital asset due to her inability to
perform some tasks; however, the defence submits the plaintiff has a “residual
earning capacity” of $220,000 which must be subtracted from potential lost
earnings of $340,000. This creates a net loss of $120,000 before a 50%
reduction for negative contingencies is applied; thus, a $60,000 award before a
further reduction of 20-25% for failure to mitigate for a net loss of
$45,000-$48,000 (unadjusted for present value).

(e) Has the plaintiff proved
costs of future care greater than $26,000? The defence takes issue with the
following costs: (i) pain clinic (the one offered at St. Paul’s Hospital is
free); (ii) occupational therapy (not needed); (iii) physiotherapy
(benefits have been exhausted); (iv) psychotherapy (provided at the free pain
clinic); (v) massage therapy (no evidence to support it); (vi) homemaking
service (daughters can assist – eliminate after one year, and reduced from
three hours per week to two hours per week after six months);
(vii) gardening (family and friends can help); (viii) raised toilet seat
and furniture risers (need has not been proved); (ix) prescription pain medication
(not for more than two years, at $400/yr. – Dr. Woolfenden said she should
avoid analgesics).

(f) Has the plaintiff proved her
(special) costs of post-collision dental treatment, a mouth-guard, and an eye
examination were reasonable? The defence submits all costs sought,
except the foregoing (“not related to the collision”), are reasonable.

[98]        
The evidence establishes Ms. Carr sustained multiple injuries in a
high impact motor vehicle collision. Ms. Carr identifies these injuries in
“vaguely descending” order of significance as follows:

(a) Neck/upper back/trapezius:
bilateral, with pain and tingling across the back, shoulders, and down the arms.
Drs. Cordoni, Salvian, McKenzie, O’Connor, Robinson, and Woolfenden rated
the prospect of further improvement as poor.

(b) Thoracic Outlet Syndrome: injury
to the scalene muscles that has resulted in an impingement or irritation of the
brachial plexus, bilaterally. Dr. Salvian testified that even with
minor activity the brachial plexus can become irritated, resulting in numbness,
tingling, and pain down both arms. Drs. Salvian, Woolfenden, and O’Connor
rated the prospect for recovery as poor. The surgical treatment (removal of a
rib) was not recommended.

(c) Headaches and dizziness:
periodic (once every two weeks) incapacitating headaches, including nausea and
vomiting. Dr. Robinson testified it was probable the headaches would
continue indefinitely.

(d) Injury to right hand and
wrist: surgery was not entirely successful; recovery long and painful;
ongoing pain and restricted use of right (dominant) hand; continued
deterioration of joint and further surgery predicted. Dr. French gave a
“guarded” prognosis for right hand and wrist function in the long term.

(e) Injury to left knee:
meniscus tear; surgery two years after injury; excellent results with some risk
of arthritis in the future.

(f) Low back pain and right hip
flexor: aggravated by sitting, bending, leaning, lifting, and standing;
likely permanent, according to Drs. O’Connor, McKenzie, and Woolfenden.

(g) Depression:
psychological reaction to chronic pain; a major depressive disorder of moderate
severity (Drs. Anderson and Woolfenden); no depressive disorder according
to Dr. Solomons.

[99]        
There is an abundance of evidence supporting these claims of injury by
the plaintiff, and I am satisfied they have been proved; the defence has not
submitted otherwise. Similarly, the defendant has not suggested the plaintiff
has fabricated or feigned these injuries or their symptoms; rather, its
position is: (a) the plaintiff is motivated, albeit “unconsciously”, by
secondary gain, and this has contributed to her lack of recovery; (b) the
plaintiff has failed to mitigate her damages by not following doctors’ advice
to exercise; and, (c) the plaintiff had pre-existing neck, back, and thoracic
outlet conditions (a “crumbling skull”). I will address each of these points
separately.

[100]     In keeping
with the foregoing, the incidents of video surveillance of Ms. Carr were
not relied upon by the defendant as evidence Ms. Carr was feigning her
symptoms. Had they been used for such a purpose, I would not have concluded
that they were inconsistent with Ms. Carr’s complaints. The videotapes
show Ms. Carr performing relatively undemanding physical tasks (such as pumping
gas and talking on the telephone) for periods of short duration. Ms. Carr’s
claim is not that she has been rendered completely disabled by her injuries;
only that she has been severely compromised by them.

(a) Secondary Gain/Learned Pain Behaviour

[101]     The
secondary gain alleged is the desire not to have to work to earn a living. The
existence of signs or evidence that Ms. Carr was motivated by secondary
gain was canvassed with many witnesses. No one noted any indication of such,
the plaintiff did not admit it, and no evidence was elicited from which it
might reasonably be inferred. When Dr. O’Connor was questioned about it in
his cross-examination, he said he had seen nothing which suggested Ms. Carr
was feigning her symptoms for secondary gain. He noted no areas of discrepancy
in reports and no inconsistencies in Ms. Carr’s accounts to various
clinicians; to the contrary, he found them “fairly remarkably consistent”. Dr. Anderson
testified he had to address his mind to the question of secondary gain with every
patient, and with Ms. Carr he saw no signs of it. He considered Ms. Carr’s
secondary losses to “far outweigh” any secondary gains. He was not of the
opinion Ms. Carr had “learned pain behaviour” or that she was
subconsciously motivated by secondary gain. Dr. Woolfenden, the defence
neurologist, opined that Ms. Carr’s post-accident symptoms “appear
genuine”.

[102]     As a
witness at trial, Ms. Carr presented as candid, truthful, and incapable of
guile. Her honesty was not seriously challenged. She readily admitted mistakes,
explained any inconsistencies, and freely acknowledged any successes she has
enjoyed in her many post-collision treatments. Her evidence was consistent with
other reliable witnesses. While I have some trouble with the concept of an
unconscious motive, I have no difficulty in concluding there is no direct, or
indirect, evidence the plaintiff was motivated, unconsciously or otherwise, by
secondary gain.

(b) Failure to Mitigate

[103]     The
defence’s assertion is twofold. Ms. Carr failed to take reasonable steps
to mitigate her losses by: (a) not doing recommended physical exercises; and,
(b) not taking gainful employment within her physical capabilities.

[104]     In
relation to the former, the evidence shows Ms. Carr willingly participated
in various post-injury treatments, as recommended by medical and rehabilitation
professionals. Ms. Carr testified that she walked, swam, and exercised
with a theraband, an exercise ball, and a stationary bike. In November 2008, Dr. Cordoni
reported that Ms. Carr had been extremely compliant with treatment; that
she had pursued every avenue open to her; and, that despite extensive amounts
of therapy she had “more or less plateaued“ with respect to her symptomology in
her neck and upper back and her right hand.

[105]     The
nature, extent and combination of the injuries sustained by Ms. Carr are
germane to the question of whether she failed to take reasonable steps to aid
in her recovery and to earn an income. Ms. Carr was unable to bend her
left knee for more than four years after the collision, and the injury to Ms. Carr’s
dominant hand significantly hindered its use. The effect of these two injuries
had a considerable impact on her physical activity; moreover, it is evident Ms. Carr
was in considerable pain much of the time. It is noteworthy that there was no
evidence of a specific “prescribed therapy regime” that Ms. Carr failed to
follow, let alone one that would likely have produced significantly positive
results. Her diagnosis of TOS in late 2007 resulted in radically different
therapy recommendations from those prior to it, and with this an inference that
prior therapy recommendations may have been counterproductive.

[106]     I am
satisfied Ms. Carr did what she could reasonably tolerate to aid in her
recovery. The evidence establishes Ms. Carr was a busy and physically
active woman prior to the collision, and I am satisfied that she was willing
and eager to do what was necessary to recover from her injuries. After the
collision Ms. Carr took, or tried, all recommended courses of treatment. She
paid for physiotherapy out of her own pocket, when she could ill-afford to do
so. She attended to myriad medical and rehabilitation professionals. She
underwent two surgeries and endured a prolonged and painful post-operative
rehabilitation period in relation to her hand.

[107]     I am
similarly satisfied Ms. Carr was not employable in the post-collision
period leading to trial. The injuries sustained by Ms. Carr, and their
debilitating effects, rendered her virtually unemployable. In this period, Ms. Carr
was legitimately preoccupied, if not overwhelmed, by her injuries, and
appropriately focusing her efforts on recovery.

(c) Crumbling Skull

[108]     The
defence submits that prior to the collision Ms. Carr had symptomology
which indicated the presence of: (a) TOS; (b) neck and shoulder pain, with
associated headaches; and, (c) anxiety. The defence says it is not mere
coincidence Ms. Carr’s pre-collision symptoms mirror those in the
post-collision period.

[109]     In
relation to (a) and (b), the defence relies primarily upon the evidence of John
Casey, the chiropractor who treated Ms. Carr in 2002. Mr. Casey
testified that he successfully treated Ms. Carr for pain and restricted
range of motion in her neck and upper back. He said Ms. Carr reported that
she suffered from “occasional tingling in her left arm with overhead work.” Ms. Carr
testified that prior to the collision she suffered from non-migraine “stress”
headaches which caused pain in her neck and shoulders. She also said “every few
years” she would get a “kink” in her neck. She distinguished these kinks and
the tingling sensation from her post-accident neck pain by noting they were not
disabling. She said that when these pains arose she would seek chiropractic
treatment and within a few sessions the problem would resolve. She
distinguished the pre-collision “tingling” from the post‑collision
sensation; the latter she described as a “buzzing” with disabling pain across
her back and into her shoulder blades.

[110]     Dr. Salvian,
an expert in TOS, was questioned and opined about the pre-collision “tingling”.
Although he was hampered by the absence of the results of a medical examination
in relation to it, he believed it was “probable” Ms. Carr had a “threshold”
for the development of TOS. Similarly, Dr .O’Connor thought that Ms. Carr
was probably predisposed to TOS, and rested this opinion upon Ms. Carr’s
complaints to Mr. Casey in 2002.

[111]     In
relation to (c), the defence relies upon evidence Ms. Carr has some
history of anxiety and depression. Ms. Carr testified to a history of
“post-partum depression”, “winter blues”, some anxiety when her niece was
seriously injured and her father-in-law died, and some stress when her father
was in the early stages of dementia.

[112]     When
questioned about Ms. Carr’s pre-collision psychiatric history, Dr. Anderson
said he saw no signs of a major depressive disorder until after the collision.

[113]    
In Athey v. Leonati, [1996] 3 S.C.R. 458, the court distinguishes
the “thin skull” from the “crumbling skull” as follows:

[34] … The “crumbling skull” doctrine is an awkward label
for a fairly simple idea. It is named after the well-known “thin skull” rule,
which makes the tortfeasor liable for the plaintiff’s injuries even if the
injuries are unexpectedly severe owing to a pre-existing condition. The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

[35] The so-called “crumbling
skull” rule simply recognizes that the pre-existing condition was inherent in
the plaintiff’s “original position”. The defendant need not put the plaintiff
in a position better than his or her original position. The defendant is liable
for the injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway. The defendant is liable for the
additional damage but not the pre-existing damage … Likewise, if there is a
measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence,
then this can be taken into account in reducing the overall award …

[114]    
In Zaruk v. Simpson, 2003 BCSC 1748, Garson J. (as she then was)
applied the “crumbling skull” doctrine in the determination of past and future
income losses as follows:

[39] … The test described in Athey requires me to
determine if there is a measurable risk that the degenerative changes would
have become symptomatic without the accident. If the answer to that question is
yes then that finding forms the basis to reduce the award to take into account
such a risk. I am not satisfied on the evidence before me that Ms. Zaruk’s
degenerative changes would have become symptomatic without the accident in the
time period between the accident and the date of trial.

[40] However, application of the crumbling skull doctrine may
not result in the same reduction for past losses as future losses. Past losses
must be assessed on the basis of a balance of probabilities. “Once the burden
of proof is met, causation must be accepted as a certainty,” Athey,
paragraph 30. But for the assessment of future losses, “[a] future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation,” Athey,
paragraph 27.

[41] Based on the degeneration
shown on the x-rays, the fact that some of her symptoms now are consistent with
pain from degenerative changes, and the fact that the plaintiff had other risk
factors enumerated above, I conclude that there is a measurable risk that the
pre-existing condition would have become symptomatic and would have
detrimentally affected the plaintiff at some time in the future regardless of
the accident. …

[115]     Having
regard to all the foregoing, I am unable to conclude the ‘crumbling skull’
doctrine has application to the case at bar. I am satisfied that prior to the
collision, Ms. Carr was a physically active and able woman who enjoyed
good physical and mental health. Ms. Carr and several others testified to
this effect, and I accept this evidence as truthful. Dr. Cordoni’s
evidence is particularly persuasive in this regard. Dr. Cordoni is Ms. Carr’s
family physician, and had treated Ms. Carr for more for more than 20 years
prior to the collision. She was very familiar with Ms. Carr’s
pre-collision physical and mental health. She noted that Ms. Carr had very
few health issues in this lengthy period. Ms. Carr had a history of being
frank and open with Dr. Cordoni. She discussed with Dr. Cordoni the
various stresses in her life, including her cousin’s serious injury, her
father’s dementia, and her unhappiness about her third and unplanned pregnancy.
In 2004, Ms. Carr related various stresses in her life to Dr. Cordoni,
and Dr. Cordoni specifically declined to prescribe an anti-depressant
because Ms. Carr was “coping well” and the stressful situation was, in her
view, “a one-time event”. Dr. Cordoni noted that Ms. Carr had never
complained of headaches or neck, back, and shoulder pains prior to the
collision.

[116]     The
evidence in relation to pre-collision TOS establishes, at its most favourable
to the defence, some degree of predisposition for TOS based upon complaints to
a chiropractor. No medical examination was performed and the report of Dr. Salvian
suggests that the diagnostic test for TOS is multi-faceted. There is no
evidence that the self-reported symptoms of Ms. Carr are a sufficient
basis for predicting the likelihood of her developing TOS in the future. I am
satisfied that evidence raising the mere possibility of such is insufficient to
find that Ms. Carr had a measurable risk of developing TOS regardless of
the collision.

[117]     Similarly,
I am satisfied that neither the evidence of a history of periodic neck,
shoulder, and back pain, nor evidence of prior bouts of anxiety and depression,
is sufficient to reasonably conclude that Ms. Carr either suffered from a
pre-existing physical or psychological condition, or that she had a measurable
risk of developing such regardless of the collision. Ms. Carr’s
pre-collision complaints and symptoms were relatively benign and easily
distinguished from those post-collision. The evidence shows that her neck,
back, and shoulder complaints were likely stress-related; that they were
transitory; and, that they responded well to simple treatments. There is,
moreover, no evidence that Ms. Carr suffered from any neck, shoulder, and
back complaints in the two-year period preceding the collision. In relation to
prior bouts of anxiety and depression, the evidence shows that these, too, were
transitory and situational. They were reasonable responses to sad and stressful
events in her life, and I am satisfied that it would be unreasonable to infer
from them a pre-existing psychological condition or a measurable predilection
for it.

D. Damages

Non-pecuniary

[118]     The plaintiff
submits the appropriate range of damages is $110,000-$125,000 and seeks an
award at the upper end of that range. In support of this submission the
plaintiff cites the following cases: Djukic v. Hahn, 2006 BCSC 154
($125,000); Maillet v. Rosenau, 2006 BCSC 10 ($110,000); Hooper v.
Nair, 2009 BCSC 862 ($110,000); and, Eccleston v. Dresen, 2009 BCSC
332 ($120,000).

[119]     The
plaintiff says that Djukic is most similar to the case at bar. Ms. Djukic
was a 37-year old mother of two. The defendant was found liable for injuries to
Ms. Djukic’s neck, back, shoulders, wrist, and knee: sustained in a motor
vehicle accident. Her injuries remained unresolved, to varying degrees. She
suffered from severe pain and underwent a discectomy to relieve sharp burning
pain through her buttocks and down her leg; however, the pain returned to a
significant degree. She suffered from chronic anxiety and depression. Ms. Djukic
was described as a robust, energetic, goal-driven, emotionally stable, and
hard-working person who had lost most of her quality of life due to the
collision. The collision left her with a permanent partial disability, both
physical and emotional.

[120]     In Hooper,
the plaintiff was injured by the defendant in a motor vehicle accident. She had
one child, who was aged six years at the time. She sustained soft tissue
injuries to her lower back and neck, and she developed TOS. She was found to
suffer from chronic pain and emotional difficulties caused by the collision.
Both her professional and private lives were adversely affected by her
injuries.

[121]     The
defendant submits the appropriate range is $55,000-$85,000. In support of this
range the defendant cites the following cases: Sage v. Renner, 2007 BCSC
1357 ($65,000); Mowat v. Orza, 2003 BCSC 373 ($50,000); Durand v.
Bolt, 2007 BCSC 480 ($75,000); and Cimino v. Kwit, 2009 BCSC
912 ($85,000).

[122]    
The most similar of the defence-cited cases to the one at bar is Cimino.
Ms. Cimino was a 41-year old wife, mother, and dental assistant who
sustained multiple soft-tissue injuries in a motor vehicle accident. She
developed TOS caused by the accident. In awarding $85,000, Dillon J. said:

[46] In this case, the plaintiff
has demonstrated that she is able to work and participate in some recreational
activities and family life. However, the culture within the family changed
dramatically after the accident as the plaintiff could no longer perform all of
the household activities and her sons and husband took on new roles. She
suffers from thoracic outlet syndrome as a result of the accident, but does not
have other recurring problems from the accident. This distinguishes her from
cases where the gravamen of multiple injuries along with the syndrome results
in the highest awards. While the plaintiff has certainly suffered loss of
enjoyment of life, emotional suffering, and must face the daunting prospect of
permanent daily pain, she has not lost the ability to work or her basic
lifestyle.

[123]     In the
assessment of general damages, the court will consider, inter alia, the
following factors: (a) the plaintiff’s age; (b) the nature of the injury; (c)
the severity and duration of pain; (d) disability; (e) emotional suffering; (f)
loss or impairment of life; (g) impairment of family, marital, and social
relationships; (h) impairment of physical and mental abilities; (i) loss of
lifestyle; and (j) stoicism (as a factor for which the plaintiff should not be
penalized): see Stapley v. Hejslet, 2006 BCCA 34.

[124]     The court
will also consider the awards made in other similar cases as a helpful guide.

[125]     Ms. Carr
has, at age 44, many years ahead of her. As a result of the defendant’s
negligence, Ms. Carr has been permanently partially disabled and left with
constant and chronic pain. Since the collision, Ms. Carr has undergone two
surgeries and endured considerable pain and discomfort. Ms. Carr has
developed TOS and surgery is not recommended. She suffers from clinical
depression related to the negative effect her injuries has had upon her, her
family, and her way of life. Ms. Carr’s mental acuity and concentration
has slipped. Ms. Carr’s marriage ended six months after she sustained her
injuries. Her husband was unsympathetic and frustrated by her lack of desire
for sex due to her discomfort. Ms. Carr has been rendered unemployable for
most jobs in a competitive market. She is now unable to enjoy most leisure
activities and active social pursuits with her children. She has a special
fondness for horses and gardening, but meaningful participation in activities
related to these interests is no longer feasible. Ms. Carr has lost much
of the satisfaction from gainful employment, and the purpose and dimension it
gives to life. In short, the negligence of the defendant has had a profoundly
negative and lasting impact upon Ms. Carr.

[126]     I agree
with the plaintiff’s position that the Djukic case is most similar of
the proffered cases on its facts. I also agree with the defendant’s submission
that Ms. Djukic’s pain was more severe than that of Ms. Carr;
otherwise, I am persuaded that Djukic a useful reference point for the
upper end of a general damages award in this case; and that Cimino is instructive
in determining the lower end.

[127]     Having
regard to all the foregoing, I assess Ms. Carr’s general damages at
$100,000.

Past Income Loss

[128]     The
plaintiff submits that the injuries she sustained in the collision caused her
to lose a net income of $84,492 from: (a) employment as a housecleaner (between
February 18, 2005, and May 31, 2005); and, (b) employment with her brother’s
concrete business (between June 1, 2005 and March 2010). The plaintiff quantifies
the loss based upon assumptions (including hours of work and rates of pay) as
set forth in the evidentiary synopsis, herein, and the attached Appendix “B”.
The plaintiff submits there should be no reduction for negative contingencies.

[129]     The
defendant’s position is that the assumptions of the plaintiff are unrealistic,
given: (a) Ms. Carr’s inconsistent work history; (b) Ms. Carr’s
ongoing family obligations; (c) Ms. Carr’s lack of incentive to work
because of other income sources (child support payments of $300/month,
government child subsidies of $500/month, and loans from her mother of $2,000/month);
and, (d) the seasonal nature of the concrete business.

[130]    
Once a causal connection has been established between the claimed
pecuniary loss and the injuries caused by the defendant, calculation of past
wage loss is assessed according to the likelihood of hypothetical past events
for which a real possibility has been established. In Smith v. Knudsen,
206 B.C.A.C. 198, the court said:

[29] …What would have happened
in the past but for the injury is no more “knowable” than what will happen in
the future and therefore it is appropriate to assess the likelihood of
hypothetical and future events rather than applying the balance of
probabilities test that is applied with respect to past actual events.

[131]     I find
there was a very high likelihood, close to certainty, that but for the
collision, Ms. Carr would have: (a) continued to work as a housecleaner
until May 31, 2005; (b) taken part-time employment with her brother on or about
June 1, 2005, and continued in this employment through to March 2010; and (c)
worked the hours and earned the rates of pay Mr. Bush assumed for the
purpose of his calculations.

[132]     I reject
the notion that Ms. Carr’s unemployment history during her child-rearing
years made her return to the workforce less realistic or less likely. Ms. Carr
did not harbour fanciful ideas about her capabilities, her income-earning
potential, or her opportunities for employment. When her youngest child reached
school age, Ms. Carr was relatively young, energetic, able-bodied, willing
to work hard, prepared to accept modest wages in exchange for her labours, and was
fortunate to have a brother who could offer her steady, secure, and reasonably
well-remunerated employment.

[133]     The
evidence establishes that Ms. Carr, shortly before the collision, was
motivated to earn some income (e.g., from housecleaning) until her youngest
child was enrolled in school; thereafter, she planned to seek more fulsome
employment. I do not accept the defence submission that Ms. Carr
lacked the incentive and/or need to earn an income; to the contrary, since she
has been unable to work because of her injuries she has, with some reluctance, turned
to her mother for ongoing loans of relatively large sums of money, just to get
by.

[134]     Ms. Carr
became a single parent as of June 1, 2005. I find it highly likely that this
new status would have impelled her to take the employment her brother offered,
and to do so immediately. Her newly poor economic circumstances would have
necessitated that Ms. Carr make child-care arrangements to bridge the time
until her youngest child was in school in September 2005, and would have
motivated her to work as many hours as she could manage as a single parent.
Similarly, I am satisfied that she would have made any necessary arrangements
for the care of her father.

[135]     I also
find it is highly likely that Ms. Carr, as an employee of her brother,
would have worked the hours and received the rates of pay assumed by Mr. Bush
in his calculations. I find it is most unlikely that the seasonal aspect of the
work would have reduced Ms. Carr’s overall income. Any shortage of work in
the slow season would be offset by the demands of the busy season, and I am
satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am
unable to agree with the plaintiff’s submission that in the determination of
past wage loss there should be no reduction for negative contingencies, I am
satisfied, for the relatively predictable period in question, the reduction
must be minor.

[137]     Having
regard for all the foregoing, I assess the plaintiff’s past wage loss at
$75,000.

Loss of Future Earning Capacity

[138]    
The plaintiff submits that she has suffered a significant and permanent
loss of her income-earning capacity. In support of this position Ms. Carr
relies upon, inter alia, the evidence of:

(a) Mr. Lawless, who assessed her as having “very little
vocational potential”;

(b) Mr. McNeil, who found she is restricted to
“sedentary-to-modified-light-level strength” occupations, she would need an
accommodating employer, and she would have difficulty maintaining a competitive
work pace;

(c) Dr. Cordoni, who opined that she is “markedly
restricted” and has an “extremely limited ability” to perform any kind of
functional work;

(d) Dr. French, who said, even with a successful
surgical outcome on her thumb and wrist, she is very likely to have residual
discomfort and diminished range of motion, which is likely to limit her activity
tolerance and function;

(e) Dr. O’Connor, who stated she will likely be
permanently unable to perform repetitive activities or work in a competitive
work environment, even at a sedentary level;

(f) Dr. Salvian, who described her as “significantly disabled”
in relation to her neck and arm, with no significant improvement likely;

(g) Dr. Robinson, who believed her condition will likely
remain unchanged, indefinitely, and she is at risk for a level of chronic
disability that would not allow her to return to the workforce; and,

(h) Dr. Anderson, who said
she is not likely competitively employable due to the extent of her ongoing
physical and emotional difficulties.

[139]     The
plaintiff acknowledges she has some residual income-earning capacity, perhaps
as a babysitter or a self-employed bookkeeper.

[140]     The
plaintiff invites the Court to find that “scenario two” in Mr. Carson’s
report (see Appendix “C”) provides a reasonable assessment of Ms. Carr’s
future losses. This scenario assumes that an uninjured Ms. Carr would have
worked to age 65; that for the first five years she would have earned $22/hour,
worked 30-hour weeks, and 48‑week years; and, that for the balance of her
working years she would have earned $25/hour, worked 40-hour weeks, and 48-week
years. It also assumes the injured Ms. Carr will work to age 65, earn
$15/hour, work 20-hour weeks, and 50‑week years. Based upon these
assumptions, Ms. Carr’s net loss is $449,205: the difference between
her earnings without injury ($687,105) and her earnings with injury ($237,900).

[141]     The
defendant’s position is that the plaintiff has failed to establish that working
for her brother’s cement company was a substantial possibility; accordingly,
there is no proof of future loss. The defendant concedes, however, the
plaintiff has lost a capital asset, “given her inability to perform some tasks”,
for which there must be some compensation. The defendant notes that Ms. Carr
has lost grip strength in her right hand; that she is slower at performing
tasks involving crouching, kneeling, handling and reaching; and, that she still
has a “residual earning capacity” in part-time
sedentary-to-modified-light-level work such as bookkeeping.

[142]     The
defendant submits the “capital asset approach” should be used to assess Ms. Carr’s
loss; however, his position is that “on either the capital asset approach or
the real possibilities method, an appropriate amount for diminished earning
capacity is $40,000 (to be adjusted for present value).”

[143]     Alternatively,
the defendant submits that the loss should be assessed at $60,000, if the Court
is satisfied employment with Ms. Carr’s brother was a realistic
possibility. This figure is based upon calculations with the following
assumptions: that an uninjured Ms. Carr would work to age 65, start at
$16/hour with increases to $20/hour, and work 25-hour weeks for 36-week years.
It is also assumed that the injured Ms. Carr would earn $10/hour, and work
25-hour weeks for 48-week years. The defendant calculates the net loss at
$120,000 ($340,000-$220,000), but submits that the amount must be reduced by
50% for significant negative contingencies (e.g., early retirement,
injury, re-marriage, job loss, early death, and failing health).

[144]     To prove a
compensable loss, the plaintiff must show a real and substantial possibility of
a future income loss, and the court must assess the loss by taking into account
all substantial possibilities and the likelihood of their occurrence. The
purpose of the award is to compensate the plaintiff for lost earning capacity
as a capital asset: see Parypa v. Wickware, 1999 BCCA 88.

[145]     In
assessing the value of the loss the court may consider, inter alia,
whether the plaintiff: (a) has been rendered less capable overall from earning
income from all types of employment; (b) is less marketable or attractive as an
employee to potential employers; (c) has lost the ability to take advantage of
all job opportunities which might otherwise have been open to her, if she were
not injured; and, (d) is less valuable to herself as a person capable of
earning income in a competitive labour market: see Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.).

[146]     Applying
the aforementioned legal principles to the case at bar, I am satisfied Ms. Carr
has proved a real and substantial possibility of future income loss, and shown
a high likelihood: (a) that she would have returned to the workforce as of
June 1, 2005, if she had not been injured by the defendant; (b) that
her circumstances, capabilities, needs, and opportunities were such that she
would have taken employment with her brother; (c) that she would have
maintained this employment and increased her hours of work to full-time
employment as her children became more independent, in order to provide for
herself and her children; and, (d) that she would have performed well at
this job and enjoyed the increases in wages as testified to by her brother.

[147]     I am
satisfied the evidence establishes a very high probability of occurrence of the
assumptions upon which “scenario two” of Mr. Carson’s report is based;
accordingly, the mathematical calculation shows a future income loss of
$449,205. Although the court is to assess rather than calculate a plaintiff’s
damages, in the case at bar I am satisfied that $449,205 is a reasonably
accurate assessment of Ms. Carr’s lost earning capacity as a capital
asset. Employment with Ms. Carr’s brother represented a unique opportunity
for the plaintiff to secure stable and long-term employment, and to earn a
comparatively high income for her level of education, experience, and skills.

[148]     The
plaintiff submits her future income loss should not be reduced for negative
contingencies. The defendant’s position is that the negative contingencies are
significant, and ought to result in a 50% reduction. The defendant says, for
example, Harri Kujala might move his family and his business to Grand Forks,
BC, and thus threaten the viability of the plaintiff’s job; or Ms. Carr
might not continue working until age 65, especially given the absence of much
employment in the past. The defendant submits that there is a possibility Ms. Carr
might suffer from the exacerbation of existing physical complaints or develop
new ones; or that Ms. Carr’s family or personal needs might result in an
early withdrawal (before age 65) from the workforce.

[149]     I am in
agreement with the defendant that there are several realistic negative
contingencies which must factor into the assessment of the award for future
lost income-earning capacity. I would not, however, consider them so
significant as to reduce the award by half. In relation to the negative
contingencies raised by the defendant, the evidence shows: (a) that Ms. Carr
comes from a family of strong and industrious people – her mother worked until
age 64, and remains healthy and vigorous at age 78; (b) that Ms. Carr was
a strong, healthy, and hard-working woman prior to the collision; (c) that Ms. Carr
is not so tied to her present community that it is unlikely she would move to
Grand Forks if her brother relocated his business there (Ms. Carr’s
mother, to whom she is close, also resides in Grand Forks); and, (d) that Ms. Carr
is a single mother with an ongoing need to provide for herself and to
contribute to the financial support of her children.

[150]     In light
of all the foregoing, I am satisfied that the negative contingencies should
operate to reduce the award by 25%; accordingly, I assess Ms. Carr’s
future lost income earning capacity at $337,000.

Cost of Future Care

[151]     The
plaintiff’s submission regarding future care costs is usefully summarized in a
table, included as Appendix “E” to this judgment. It shows one-time expenses
totalling to $33,470 and periodic expenses totalling to $166,527. The plaintiff
submits that the figures represent a “mid-way” position drawn from, and
supported by, the evidence of Ms. Allende, the occupational therapist who
assessed Ms. Carr.

[152]     The
defendant opposes many of the future expenses claimed on the following bases:
(a) that there are reasonable cost-free alternatives; (b) that Ms. Carr is
not likely to incur them due to their ineffectiveness; (c) that Ms. Carr
has failed to show a real and substantial risk of the claimed future pecuniary
loss; and/or, (d) that Ms. Carr has failed to show the cost is medically
justified and reasonable. The defence submits $26,000 would be a fair award for
these costs, and is; more specifically, opposed to the following expenses, for
the following reasons:

(a) Multi-disciplinary Pain Clinic
($13,500): The St. Hospital Pain Clinic is a reasonable cost-free alternative,
and the ten-month wait list is acceptable.

(b) Occupational Therapy ($700):
The plaintiff has learned how to modify her daily living to account for her
limitations.

(c) Physiotherapy ($5,000): The
plaintiff is no longer obtaining benefit from this passive treatment.

(d) Kinesiology, after one year of
treatment ($6,600): In conjunction with Feldenkreis therapy, one year of
kinesiology is adequate. (The defendant concedes that one year of Feldenkreis
therapy ($3,328) is necessary, as per Ms. Allende’s report.)

(e) Psychotherapy ($3,500): The
plaintiff will receive counselling for pain at the Pain Clinic.
Drs. Cordoni and Solomons do not think Ms. Carr has a depressive
disorder.

(f) Massage: ($7,231): No evidence
that the plaintiff is in need of massage therapy – she has not had it since
2005.

(g) Homemaking Services for more
than one year: The plaintiff’s homemaking services should continue at three
hours per week for six months, be reduced to two hours per week for the next
six months, and then terminate. No more than $5,000 should be awarded. The
plaintiff has children who can assist, and increased activity for the plaintiff
is recommended by Dr. Woolfenden.

(h) Gym pass for greater than five
years ($400/yr): The expense is conceded, but five years is sufficient.

(i) Seasonal
Cleaning/Lawn-mowing/Gardening:($26,190): The defence concedes the expense, per
se, but submits $2,500 is a reasonable figure.

(j) Equipment: The possibility of
the need for a raised toilet seat ($35/10yrs) and furniture risers ($80/5yrs)
has not been shown. There is no evidence supporting the need for a dental
appliance.

(k) Prescription Medications
($30,165): Consumption of eight “Tylenol 3s” per day (per Ms. Allende’s
report) is contrary to Ms. Carr’s testimony of two tablets per day,
five days per week, and Dr. Woolfenden said Ms. Carr should avoid
analgesics as much as possible. The defendant’s position is that $400 per year
for two years is appropriate.

[153]     I will
address each of these disputed claims in the order raised.

(a) pain clinic

[154]    
I note Ms. Allende does not recommend the costly Vancouver Pain
Clinic over the no-charge St. Paul’s clinic; she merely states there would be a
waiting period of approximately 10 months for enrolment in the St. Paul’s
clinic. Dr. Salvian testified he has had many patients enjoy success with
the St. Paul’s clinic. He said the focus is on medications and trying to avoid
narcotic use. He stated the patients tend to be sad or depressed – most are in
chronic pain, can’t sleep, and can’t work – and there is group counselling
available. I am not persuaded the plaintiff has shown that the delay for the
cost-free clinic is unacceptable or that it is unsuitable for her needs;
accordingly, I find that she has not established that the Vancouver Pain Clinic
fee of $13,500 is a medically justified and reasonable expense.

(b) occupational therapy

[155]     Ms. Allende
recommends six to eight occupational therapy sessions “to assist Ms. Carr
in restoring roles of housekeeping, home maintaining, and worker.” She noted that
Dr. Salvian recommended Ms. Carr have an ergonomic assessment to
ensure that she is “ergonomically sound”. I am satisfied the plaintiff has
proved that this therapy is medically justifiable and reasonable; however,
there is a dearth of evidence explaining the need for the number of sessions
recommended. I find that this claim for future cost has been proved, but limit
it to one two-hour session ($200), plus one hour of travel time ($100) and
mileage ($20.00).

(c) physiotherapy

[156]     Ms. Allende
recommends physiotherapy for symptom management and exercise program
supervision. Ms. Carr testified, as of the trial date, physiotherapy gave
her very temporary relief (“the pain returns within a day”). Dr. Salvian
testified patients with TOS do not respond to conventional therapy. He
recommended Feldenkreis therapy for Ms. Carr. Given the foregoing
evidence, I am not satisfied the plaintiff has proved that physiotherapy is
medically justifiable and reasonable; accordingly, I find this claimed future
cost has not been proved.

(d) kinesiology

[157]     Ms. Allende
states it is recommended that Ms. Carr participate in strengthening
activities supervised by a physiotherapist and implemented by a kinesiologist.
I am not satisfied the plaintiff has proved this therapy is medically
justifiable and reasonable, particularly if Feldenkreis therapy (the efficacy
of which is conceded) is undertaken.

(e) psychotherapy

[158]     Ms. Allende
anticipates that Ms. Carr would receive psychological treatment at a pain
clinic; however, she states Ms. Carr “may benefit from ongoing follow-up
with a psychologist for coping strategies for chronic pain and mood
management.” I am not satisfied that the plaintiff has shown that this
proposed treatment is medically justifiable and reasonable, or that she is
likely to incur this expense.

(f) massage

[159]     Ms. Allende
recommends an indeterminate number of massage therapy sessions because Dr. Salvian
recommended it as pain management for TOS patients who have “over-done it”. Ms. Carr
did not testify as to the effectiveness, at present, of massage, and it is
somewhat speculative that she will need or use massage therapy. I am not
satisfied the plaintiff has proved this therapy is medically justifiable and
reasonable, or that this is an expense that she is likely to incur.

(g) homemaking services

[160]    
Ms. Allende recommends Ms. Carr have five hours of
housecleaning help per week, based upon an assumption Ms. Carr requires
help with 75% of a total of 365 hours per year of housekeeping tasks. She
estimated housecleaning services at $19.25-$24.95 per hour, plus GST. Ms. Carr
testified her daughters help with the housekeeping and cooking. She said she
cannot do simple tasks such as wiping a counter, for more than 10 minutes
without her shoulders burning. It is noteworthy that Ms. Carr’s injuries
do not prevent her from doing many household tasks, they simply take her much
longer to perform; however, some cleaning tasks are now beyond her physical
limitations. I am satisfied the plaintiff has shown medical justification for,
and a real and substantial likelihood of incurring, future housecleaning
expenses; however, I am not satisfied the plaintiff has shown a need beyond
that met by the three hours per week of housecleaning help provided to her in
the past. Also, Ms. Carr’s need for such services will diminish by March
2018, when the youngest of her children becomes an adult. I find that the
plaintiff has shown a medically justifiable and reasonable need for three hours
per week of housekeeping (at $22.00 per hour) until March 2018, and four
hours bi-weekly thereafter, until November 2030.

(h) gym pass

[161]     Ms. Allende
states that Ms. Carr “would benefit from participating in an independent
cardiovascular and strengthening exercise program on an ongoing basis”, and
that a gym pass would “allow her to have access to a hot-tub, which she has
reported helps her to manage her pain.” Ms. Allende does not recommend a
specified period. The defence concedes this expense is medically justifiable
and reasonable, but for a period of five years only. Ms. Carr claims a
$400/year membership for the next 20 years; however, I am not satisfied Ms. Carr
has shown a real and substantial likelihood of incurring such an expense
continuously until her 65th birthday. In keeping with the defence concession, I
find the plaintiff has proved a medically justifiable and reasonable need for a
gym membership (at $400/yr) for five years.

(i) seasonal cleaning/lawn-mowing/gardening

[162]     Ms. Carr
and her children reside in a house with a garden. Due to Ms. Carr’s
injuries, Ms. Allende says Ms. Carr will require: (a) 8-12 hours per
year of help for seasonal “heavy” household cleaning, at a cost of $158-$258
plus GST, per year; (b) 30 lawn-mowings per year, at $900-$1,200 plus GST,
per year; and (c) 64 hours per year of gardening help, at $1,600-$3,520, plus
GST, per year. The defence concedes these expenses are medically justifiable
and reasonable, but only to the extent of a total cost of $2,500. I am
satisfied the plaintiff has shown a real and substantial likelihood of
incurring these expenses until her youngest child reaches adulthood
(March 2018); thereafter, it is not likely she will require a residence
with the maintenance demands of a house and garden. I find the plaintiff has
proved a medically justifiable and reasonable need for these future expenses
until March 2018, in the mid-range sought.

(j) equipment

[163]     Ms. Allende
recommends a litany of items for Ms. Carr’s mobility, home management, and
pain management. The defendant concedes $2,500 for home management items, and
$620 for pain management items. The plaintiff claims $3,500 for these expenses.
I am not satisfied the plaintiff has shown a real and substantial likelihood of
incurring each of these expenses. Given the defendant’s concession, however, I find
the plaintiff has proved a medically justifiable and reasonable need for some
of these items, totalling to $3,120.

(k) prescription medication

[164]     Calculation
of the future cost of medications for Ms. Carr is very problematic, and
there has been little evidence led, or much assistance given, in this regard;
yet, it is clear Ms. Carr is likely to need medication to ease her pain
for the foreseeable future. Ms. Carr testified she takes one Gabapentin
tablet daily to help her sleep, and usually two “Tylenol 3s” per day, five days
per week, to help with pain. I am satisfied she has shown a real and
substantial likelihood of incurring the costs of these medications for the next
20 years, at least. Based upon the Pharmacare information provided by Ms. Allende,
it seems likely Ms. Carr will be eligible for a generous subsidy until age
65, and for an even greater subsidy thereafter. Ms. Carr’s receipts in
relation to her claim for special expenses show that she has, in the past, paid
$32.64 for 30 capsules of Gabapentin, and $17.27 for 50 tablets of
“Tylenol #3”. On an annualized basis, the costs for these two drugs would be
approximately $390 and $180 respectively. The cost (unadjusted for present
value) for the next 20 years would be $11,400; however, this figure must be
discounted to account for the likely prospect of subsidies. Given all the
foregoing, I find the plaintiff has proved a medically justifiable and
reasonable need for medications, and assess these future costs at $5,000.

[165]     The
defendant did not specifically address the plaintiff’s future costs claim under
the heading: “Services: Future Considerations”. I am, however, not satisfied
the plaintiff has proved that her claims for future moving expenses and
vocational rehabilitation are medically justifiable and reasonable; otherwise,
I am so satisfied. It is likely, based upon the report of Ms. Allende and
the medical evidence, Ms. Carr will require further hand surgery within
the next ten years. These future costs are assessed at $2,156.

[166]     In
summary, with the foregoing alterations and deletions to the plaintiff’s claim
(as summarized in Appendix “D”), and the addition of the cost of Feldenkreis
therapy (conceded but not specified), the plaintiff’s claim for future costs is
allowed.

Special Damages

[167]     The
plaintiff’s claim for $15,418.72 is supported by receipts tendered into
evidence. The defendant concedes the totality of this claim with the following
exceptions: the costs for dental treatment ($461.90), a mouth guard ($47.25),
and an eye examination ($65.00). The defendant submits the plaintiff has failed
to establish a link between the collision and these expenses, and the plaintiff
has not responded otherwise. I am satisfied that the plaintiff has not proved
the above-mentioned specified costs. Special damages are assessed at
$14,844.57.

E. Costs

[168]    
If the parties cannot agree, then they are a liberty to make written
submissions in respect of costs.

“The
Honourable Mr. Justice Bernard”