IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100713

Docket: M57751

Registry:
Nanaimo

Between:

S.T.

Plaintiff

And:

S.K.

Defendant

Before:
The Honourable Madam Justice L. Smith

Oral Reasons for Judgment

[1]          
THE COURT:  These are my reasons for judgment.  I may edit the
transcript for clarity or to correct errors, but the outcome will remain
unaltered.

[2]          
The plaintiff, S.T., is 20 years of age.  When she was 17, in the summer
between Grade 11 and Grade 12, she was injured in a motor vehicle
collision in Nanaimo.  The accident occurred on July 26, 2007, when the
defendant, S.K., who was the driver of the vehicle in which S.T. was a back-seat
passenger, drove into the path of an oncoming truck.  The impact was severe.  S.K.’s
vehicle was a total loss, and the other passengers suffered serious injuries.  S.K.
has admitted liability and therefore the only issue before me is the measure of
damages that will compensate S.T. for her injuries.

[3]          
The main injuries suffered by S.T. were to her right ankle and left
shoulder.  Although she also experienced some problems with her neck, back and
knee, those resolved shortly after the accident.  The plaintiff does not claim
that the ankle injury will cause her any ongoing problems, although she says
that it causes her pain every once in a while.  She does say that her left
shoulder injury has not resolved, and that she has suffered, in addition, some
injuries of a psycho-social nature.  She seeks compensation for lost wages,
special damages and non-pecuniary losses, and loss of future earning capacity.

[4]          
In addition to evidence from the plaintiff herself, I heard evidence
from the plaintiff’s mother, L.B., and from two expert witnesses called by the
plaintiff:  Dr. V., who has been the plaintiff’s family physician since
2005, and Mr. Russell McNeil, an occupational therapist who performed a
functional capacity evaluation.

[5]          
As for the defence, I heard from two witnesses in addition to the
defendant himself, namely, Dorothy Ryan and David Beatty, both ICBC claims adjusters.

[6]          
I will begin with some observations about the credibility of the plaintiff. 
I have concluded that, unfortunately, I cannot rely with entire confidence on
her testimony.  The reasons for this conclusion are as follows.

[7]          
First, some of her claims are exaggerated.  For example, at the
examination for discovery, at Question 319, the plaintiff was asked:

Q         All right, so explain to me about the
depression.  How is it that you relate that to the accident?

A          To give an
example, if I said before the accident if I had – I was healthy, I was happy, I
had good choice of boyfriends really to the point that they were motivated,
outgoing, took care of me, respectful.  After the accident I couldn’t do
sports, I couldn’t do anything that I did all my life with all my best friends
that I grew up with for twelve years.  I couldn’t do to the best of my ability
of sports that I used to do, and acting, and stuff like that.  And because of
that it brought me down, it brought me extremely down to the point of where I –
I was just so lonely and alone that I was pretty much willing to have any kind
of boyfriend that would take me, literally, just because I was – I felt like
I had nothing left by the time, you know.

[8]          
The answer at discovery was an exaggeration, I must conclude, in light
of the  plaintiff’s admission at trial, under cross-examination, that after the
accident she led a very active social life, had a lead role in the school
musical, and participated (though in a reduced way) in sports, including
volleyball and soccer.

[9]          
Second, where one might expect witnesses to be called to corroborate the
plaintiff’s evidence regarding her symptoms, the plaintiff called only one
witness in that respect, her mother.  I do not suggest that L.B. is not a
credible witness, but she does have a very close relationship with her daughter
and an obvious motive to view the evidence in a way that would be favourable to
her daughter.  Also, L.B.’s ability to corroborate the plaintiff’s evidence was
limited by the fact that the plaintiff has not lived at home for extended periods
of time since the accident, and is currently not living at home.  No friends of
the plaintiff were called, nor any fellow employees or supervisors, to relate
their observations of the plaintiff experiencing the kinds of difficulties she
described in her testimony.

[10]       
Third, in her application for admission to the licensed practical nurse program
at Vancouver Island University, the plaintiff wrote:  “I am also in very good
health.  I know that working as a care aide is at times heavy work.”

[11]       
Under cross-examination, she was asked whether she was in very good
health and answered, “No.”  Asked whether she was misrepresenting her health in
the application letter, she was unable to explain this discrepancy, as seen in
the following extract from her evidence at trial.  I quote from page 73 of the
transcript of the May 21 evidence, beginning at Line 29:

Q         Well, S.T. ‑‑

A          At the time I’m sure I would not have been
thinking about healthwise related to my pain in my shoulder or as of that time,
pain in my ankle.  I would have probably been referring to my mental health and
not thinking about my physical health.  I was ‑‑

Q         Well, when you comment that you know that
working as a care aide is at times heavy work, you’re specifically relating
that to the physical requirements, certainly not heavy mental work.

A          Well, not heavy meaning literal heavy.  I
mean ‑‑ I meant hard work.  That doesn’t ‑‑ that doesn’t
include physical work.  Mental work.  For example, as a care aide, it’s very
heavy work with dealing with seniors, seniors passing away.  Having that emotional
part of it is very heavy too.  So —

Q         S.T., are you suggesting that when you wrote: “I
know that working as a care aide is at times heavy work”, you were referring to
the heavy emotional requirements of the job?

A          Not all but that
is a big factor.  Hard work.  I would have rephrased it but that’s the way I
wrote it.

[12]       
That answer is, to put it charitably, disingenuous.

[13]       
Fourth, the plaintiff was cross-examined at trial about a statement she
made to the claims adjuster, David Beatty, on May 29, 2009, when she was
in his office to discuss a possible settlement.  She agreed that she “may have
said” that she had recovered and was able to do virtually all that she could do
before the accident.  At trial, she said at one point that it was “not true”,
and at another point that it was “true at the time”.

[14]       
On her examination for discovery at questions 228 to 229, however, she
said:

Q         So, will [the left
shoulder] cause you some difficulty once a month, or –

A          I can’t estimate, it’s just kind of a random
kind of act.

Q         Okay, and have you had any other problems as a
result of the accident that weren’t specified in the Statement of Claim?  Any
other injuries that haven’t been covered?

A          No.

[15]       
At trial, she tried to suggest in her testimony that she had given that
answer on discovery because at that exact time her shoulder was not troubling
her.  Asked at trial whether she understood that the question was not about the
exact time, but about that period of time, she said she did not know if she
understood that, adding, “My shoulder hurts me when it is used:  If I sleep on it,
I’m in pain, or if I reach with it I’m in pain.  I can’t put dates and times on
it, it’s whenever I aggravate it.”

[16]       
Having noted those reasons for viewing the plaintiff’s evidence with
some caution, I will briefly review her testimony and the testimony of other
witnesses relating to her injuries.

[17]       
Immediately after the accident, S.T. recalls, she experienced pain in
her ankle, and a piece of glass was lodged in that area, which she says has
resulted in a permanent scar.  The symptoms from the right ankle were initially
severe and prevented her from placing any weight on the ankle for several
weeks.  Her mother corroborated that report.  Later, those symptoms (pain and
swelling in her ankle), interfered with her ability to play sports in Grade 12,
and thus had some impact on her social life, which was largely bound up with
sports.  However, it appears that the ankle symptoms had largely ceased by January 2009.

[18]       
Although the initial focus of the paramedics and emergency room
personnel after the accident was on the plaintiff’s ankle, she said that she
also felt pain in her shoulder.  Indeed, stated problems with her shoulder
appear in the medical records beginning almost with her first visit to her
family practitioner’s clinic.  The physiotherapy she undertook was focused on
both the ankle and the shoulder.

[19]       
 She testified that unusual or intense exertion still causes her to
feel pain and limitation in her left shoulder, for example when she reaches
overhead to lift objects, moves her arms rapidly, or performs the rotating
movement involved in washing a window.  She says that sleeping on her left
shoulder causes her pain.  It is also relevant to note that S.T. testified that
she felt significant pain in her shoulder for almost a day after the functional
capacity evaluation testing – which, her counsel suggests, is consistent with
the fact that she has not routinely tested her left shoulder since her
graduation from high school.

[20]       
The plaintiff’s position is that she has also sustained injuries of a
psycho-social nature.  She testified that the injuries caused by the accident
resulted in her separation from her sports-minded friends, and made her feel
isolated and lonely.  She testified that although her Facebook profile
consistently depicted her as a happy person, that was inaccurate.  She said
that was “just Facebook”.

[21]       
S.T. and her mother, L.B., testified that there have been a number of
stresses in her life, arising from being part of a blended family, from a bad
relationship that she entered into but has now left, and other matters.

[22]       
The plaintiff also agreed that she has had some other medical issues,
including what appears to be fairly serious dysmenorrhoea.  This was confirmed
by Dr. V.

[23]       
S.T.’s position is that the injuries and the resulting isolation
exacerbated her response to the other sources of stress in her life.

[24]       
She saw a counsellor and a psychologist, but no evidence was called from
those sources.

[25]       
Counsel for the plaintiff stated in his opening that the psycho-social
injuries, although they existed, were not being emphasized in this matter.

[26]       
S.T.’s academic performance in high school was good in Grades 9
and 10, a little weaker in Grade 11, and fell off in Grade 12. 
She graduated at the appropriate time with her class.

[27]       
S.T. has worked part time as a waitress for a number of employers, and
as well worked with seniors at a Nanaimo seniors centre from September 2008
to February 2009.  She left that job because she had the opportunity to go
to Florida with a friend and her friend’s family during Spring Break in February 2009. 
She said that initially she expected to be employed in Florida, but that a downturn
in business caused that prospect to vanish.

[28]       
Aside from the period immediately after the accident, when she missed
some shifts in her job at Tim Horton’s and eventually left the job because the
employer objected to her leaning on the counter, S.T. has not had to leave any
jobs or miss any work as a result of injuries suffered in the accident.

[29]       
She has never worked full time except for the brief period in the summer
of 2007 just before the accident.  There is no evidence that her failure to
work full-time is related to the injuries caused in the accident; rather, the
lack of full-time work seems to flow from the nature of the work she has been
doing, the availability of such work, and from her attention to other matters
such as school and her social life.

[30]       
S.T.’s earnings in 2008 were $4,152 and in 2009 were $2,495.

[31]       
 She completed one semester in a Theatre program at the University of
Vancouver Island in the fall of 2008, but testified that she then decided she
would prefer to pursue a career as a residential care aide or licensed
practical nurse.  She was admitted to the residential care aide program but
decided not to attend.  In order to be admitted to the licensed practical nurse
program, S.T. will have to upgrade her Biology 12 marks, among other
requirements.  She was working on the Biology upgrade at the time she gave
evidence.

[32]       
I turn to the evidence of Dr. V.  In her medical-legal report dated
January 11, 2010, she states that a colleague in her clinic saw S.T.
immediately after the accident, and that she first saw S.T. for her injuries on
September 12, 2007.  She diagnosed a Grade III soft tissue injury of
her left shoulder with pain on internal rotation and abduction and winging of
her left scapula, and a Grade II soft tissue injury of her right ankle,
likely with ligamentous strain.  She wrote as follows, with respect to the
plaintiff’s prognosis:

On examination today S.T. looks well and moves easily during
the exam.  S.T. did not display any pain behaviours throughout the exam.  Her
cervical spine range of motion was good with lateral bending of 58 degrees left
and 50 degrees right, rotation of 74 degrees left and 74 degrees right.  Her
shoulder girdle muscle bulk was symmetrical, and she still had slight winging
of the left scapula.  Upper limb strength was full to gross resistance
testing.  Her low back range of motion was full.  Her right ankle had some
subtle swelling but the range of motion was equal to the left and she had
minimal tenderness over the joint line.  S.T. displayed a broad and appropriate
affect when discussing her mental health and the distressing relationship that
she had entered shortly after the accident.  S.T. reports still struggling with
issues related to her self esteem and that her athleticism and acting were a
very integral part of her identity and life, and without these activities, she
was not resilient to significant dysfunction in her recent relationship.  Her
mental health remains of concern.

With respect to prognosis; it is
my opinion that S.T. will probably return to most of her former athletic
activities in some form.  I anticipate that she will possibly not be able to
participate to the same degree (league sports) as she formerly did, particularly
with her soccer as this requires repetitive use of her right ankle – running,
plant and twist, kicking etc.  Likewise, she may have difficulty returning to
downhill skiing because of the injury to her right ankle[.]  I anticipate she
will be able to fully participate in musical theatre providing the dance
component is not too repetitive.  In my opinion, the slight winging of her left
scapula is a permanent injury.  However it is not likely to cause any pain or
significant dysfunction for her usual activities.  S.T. will be able to carry
out her usual activities of daily living including housework and yard work.  I
also note at this time, that her right ankle will probably decompensate, with
swelling and pain in the face of a sudden increased demand on it.  S.T. has
been advised of this.  Please see the section on further treatment.

[33]       
There are further comments about S.T.’s mental health, and the final
paragraph under Prognosis states:

In my opinion the injuries that I observed and diagnosed in S.T.
are consistent with her being injured in an MVA.  I know of no “pre-collision”
medical condition or trauma, or any “post-collision” medical condition or
trauma that would explain these injuries.  I also know of no antecedent problem
with anxiety or mood disorders.

Employment

S.T. reports being off work from
the time of the accident for approximately one month.

The
doctor continues:

With respect to future
employment; providing the nature of the work is light to moderate, S.T. is
unlikely to have any limitations from her soft tissue injuries.  S.T. should be
able to easily bend, stoop, climb stairs, squat, kneel and do most usual work related
activities.  Activities that possibly would cause pain and swelling of her
right ankle include lengthy standing, repetitive climbing of ladders, jumping
on to hard surfaces and similar sudden or repetitive impacts, or employment
that relies heavily on ankle strength (ski instruction/ski patrol and
similar).  Her left shoulder injury could possibly be aggravated by repetitive overhead
reaching or use with her arms in full reach.

[34]       
Dr. V. also testified about observations she made of S.T. on
examination the day before the trial, May 18, 2010.  She noted for the
first time a difference between the tiny joints in the clavicle on the
plaintiff’s left side and those on the right side.  Dr. V. tested the
resistance of S.T.’s left arm in comparison with her right arm and felt there
was a marked difference, with the left arm being weaker.  She said the plaintiff’s
scapula was still slightly winged and that her left shoulder appeared to be
drooped a little.

[35]       
In cross-examination, Dr. V. agreed that on September 12, 2007,
when she wrote a report to ICBC, she expected that the plaintiff would
experience full recovery from her soft tissue injuries.  She also agreed that
as of December 10, 2009, when she saw the plaintiff and examined her in
order to prepare her medical-legal report, dated January 11, 2010,  she
felt that the plaintiff had not yet made maximum medical improvement.  Her view
was that the plaintiff was steadily improving and had not reached a plateau. 
In the report of January 11, 2010, she recommended a functional capacity
evaluation if S.T. did reach a plateau in her progress.

[36]       
Dr. V. agreed on cross-examination that her findings regarding
joints in the clavicle area on examination on May 18, 2010 were new and
stemmed from her having directed her attention to an area that had not been the
subject of previous examinations.

[37]       
Dr. V. also agreed on cross-examination that the plaintiff had not
mentioned any psychological issues to her until the December 2009 visit,
in connection with the medical-legal report, and that the discussion in her medical-legal
report of the psychological impact of the accident was wholly based on the
plaintiff’s retrospective account.  She added that she did receive, in November 2009,
the Nanaimo Hospital Emergency Room report of S.T.’s visit in connection with a
panic attack.

[38]       
The records of the physiotherapist whom the plaintiff saw for treatment
show numerous references to the left shoulder.  S.T. admitted that she did not
attend physiotherapy or do her exercises as regularly as she was told to, and
that at a certain point, I believe it was in the fall of 2009, her
physiotherapist sat her down and told her she had to be diligent about it.  S.T.
said that the physiotherapy did seem to cause her symptoms to improve.

[39]       
Mr. Russell McNeil performed a functional capacity evaluation and
prepared a report.  Although counsel for the defendant submitted that the
report should not be admitted, in the end I agreed that Mr. McNeil was
qualified to give expert opinion evidence as an occupational therapist, and
that his report could be received in evidence.  I do, however, note the
following factors bearing on the weight that Mr. McNeil’s report can be
given.

[40]       
 First, Mr. McNeil was found, in a case that was brought to my
attention by defence counsel, Rizzolo v. Brett, 2009 BCSC 732, [2009]
B.C.J. No. 1098, to have been guilty of a “shocking lack of candour” in
failing to reveal that the functional capacity evaluation technique he had used
in that case, dubbed “FAB” (Functional Assessment of Biomechanics System) was
his own invention and that he was a principal of the company that provides the “FAB”
system (at para. 105).

[41]       
Second,  Mr. McNeil, on cross-examination before me, testified that
he did not use the “FAB” system in testing the plaintiff.  Instead, he used the
“Matheson” approach.  He had previously given evidence as to the lack of
precision in the testing methods involved in the more traditional “Matheson”
approach, and this was put to him on cross-examination.  He testified before me
that the Matheson approach tests were better than no tests and reflected a “tried
and true” approach.

[42]       
Third, Mr. McNeil’s report is limited to two occupations – waitress
and licensed practical nurse – and does not specifically address other
occupations the plaintiff might pursue.

[43]       
However, Mr. McNeil did perform a number of tests over a full day
using a method that has been previously accepted in the courts.  The results
are relevant to the issues I must decide.

[44]       
Mr. McNeil reported as follows, and I quote from his report which
is dated March 15, 2010, paras. 22 and 25:

Demonstrated Capacity:  Based on assessment results of
March 2nd, 2010, S.T. has demonstrated restrictions in her capacity to
perform her work as a Waitress on a parttime basis but is capable of obtaining
and maintaining a competitively employable work pace.  She has not demonstrated
the capacity to perform the physical demands of the work on a fulltime basis. 
If she was working full time, she has demonstrated restrictions in her capacity
to perform the strength and stamina requirements of the work.   She has also
demonstrated restrictions in her capacity for prolonged repetitive reaching
using her left arm.

Demonstrated Capacity: 
Based on assessment results of March 2nd 2010, S.T. has not demonstrated
the capacity to perform the work as an LPN [licensed practical nurse] on a fulltime
basis at a competitively employable work pace.  She has not demonstrated the
capacity to perform the strength and stamina requirements of the work.  She has
also demonstrated restrictions in her capacity for prolonged and repetitive
reaching.

[45]       
To summarize the medical evidence, the diagnoses have been soft tissue
injuries to the right ankle and left shoulder.  The evidence is clear that the
injuries were sustained in a vehicle subjected to a severe impact.

[46]       
There is no dispute about causation with respect to the right ankle
injury.  There is no assertion that it will continue to cause problems for S.T.. 
Nor is there any real dispute about causation of the shoulder injury, though
there is a dispute as to the extent of the injury and as to the asserted link
between the May 18, 2010 observations of Dr. V. and the injury
suffered in the accident on July 26, 2007.

[47]       
S.T. consistently complained of pain to her left shoulder from the time
immediately following the accident.  There is no evidence of pre-existing
problems with her shoulder, and Dr. V.’s evidence is that she had not been
aware of any pre-existing issues with the shoulder.  There is no medical
evidence that x‑rays, MRIs, or CT scans have shown damage.  Dr. V.
said that the May 18, 2010 examination led her to conclude that she should
order an ultrasound and a consultation with an orthopaedic surgeon, but no
results are yet available.

[48]       
However, in addition to the findings of Dr. V. on examination and the
findings of Mr. McNeil on his tests, there are the physical observations
of the winging of the scapula, drooping of the left shoulder, and disparity of
the “strut” on the right clavicle.  There is no clear evidence that these
physical findings correlate with shoulder weakness or pain, or that they
indicate a risk of long-term disability, but they are physical findings,
possibly confirmatory of an injury to the left shoulder.

[49]       
There was no expert opinion tendered by the defendant other than a
report well outside the notice period, allegedly as rebuttal, that I did not
admit in evidence because I found that it was not proper rebuttal.  Therefore,
the uncontradicted medical evidence is that of Dr. V., and I accept her
evidence.

[50]       
I find that the plaintiff suffered an ankle injury that was disabling
for about a year and prevented her from carrying on a number of her usual
activities.  It was somewhat disabling, much less so, for another year, and it
does not cause any serious ongoing problem today.

[51]       
I find that the plaintiff suffered an injury to her shoulder that was
disabling initially (in that it interfered, for example, with her ability to
play basketball and volleyball) but that has improved over time to the point
where it causes her pain only occasionally, upon intense exertion (as in the
functional capacity evaluation tests) or sometimes after sleeping the wrong way
on the left shoulder.

[52]       
The evidence suggests that the plaintiff will continue to improve,
especially if she pursues physiotherapy.  I find that it is most likely that
she will experience a full recovery from the shoulder injury over time.

[53]       
No witness addressed the question of when the plaintiff will likely be
fully recovered, but on the evidence, given her steady improvement in the three
years since the accident to which Dr. V. testified, I find that two more
years is the likely timeframe in which she might continue to find the shoulder
causing her pain upon exertion or during sleep.

[54]       
Although much of the plaintiff’s testimony, and that of her mother, was
to the effect that she is not a complainer and believes in getting on with
life, I am not wholly persuaded of the accuracy of that characterization.  I
found that the plaintiff’s attempt to say that her Grade 12 year with her
friends had been ruined by the injuries was a remarkable exaggeration, particularly
given her vibrant social life, starring role in the school musical, attendance
at the prom and other parties, and ongoing (though limited) participation in
sports.  And her evidence at trial – particularly her answers when asked about
the prospect of full-time work – was not that of someone who is motivated to
press on, achieve financial independence, and establish a career.

[55]       
Aside from the evidence of Dr. V., which was based entirely on the
plaintiff’s retrospective account, there is no medical or other expert evidence
establishing that the accident caused or contributed to psychological damage to
the plaintiff.  However, I do find that the injuries interfered to some extent
with her enjoyment of life in 2007 and 2008, not only by causing her pain but
also by removing her from the competitive sports environment in which she had
thrived, and distancing her, to some extent, from her sports friends.

[56]       
I accept that the injuries caused her to have a more difficult year on
several dimensions following the accident than she otherwise would have had,
and I will take that into account in my assessment of non-pecuniary damages.

[57]       
I will turn to non-pecuniary damages.  The plaintiff’s position is that
an appropriate range of damages is $70,000-$90,000.  The defendant’s position
is that an appropriate and fair award would be in the sum of $30,000.

[58]       
The plaintiff pointed to the following cases: Dycke v. Nanaimo
Paving and Seal Coating Ltd., 2007 BCSC 455, [2007] B.C.J. No. 2961; Hauer
v. Clendenning, 2010 BCSC 366, [2010] B.C.J. No. 497, Paller v. Paller,
2004 BCSC 977, 133 A.C.W.S. (3d) 794; Andres v. Leslie, 2005 BCSC 1096, 141
A.C.W.S. (3d) 961; and Chappell v. Davis, (21 November 2008), Nanaimo
M51818, B.C.S.C.).

[59]       
The defendant pointed to these cases:  Edwards v. Khuong, 2001
BCSC 380, 105 A.C.W.S. (3d) 561; Moore v. Cabral, 2006 BCSC 920, 150
A.C.W.S. (3d) 613; and O’Leary v. Rupert, 2010 BCSC 240, [2010] B.C.J. No.
344.

[60]       
The purpose of an award for non-pecuniary damages is to compensate the
plaintiff for pain and suffering and loss of enjoyment of life experienced in
the past and to be experienced in the future.  The award must be fair and
reasonable to both parties.

[61]       
Looking at the cases both counsel brought to my attention, the range of non-pecuniary
damages for cases similar to this one (soft tissue injuries causing initial
acute pain, then some resulting impairment over a few years, but without
surgeries or proven psychological sequelae), is between $20,000-$70,000.

[62]       
Taking into account what the plaintiff has experienced in the past, and
what she may suffer in terms of shoulder pain and resulting limitations in the
future, I have concluded that the appropriate and fair award under this head is
$40,000.

[63]       
I turn to the claim for loss of future earning capacity.  The Court of
Appeal has recently clarified the law in this regard, stating in Perren v.
Lalari, 2010 BCCA 140, 317 D.L.R. (4th) 729, that the plaintiff must first establish a real or
substantial possibility that he or she will experience a future loss.  The Court
stated at paras. 30‑33:

Having reviewed all of these cases, I conclude that none of
them are inconsistent with the basic principles articulated in Athey v.
Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229. These principles are:

1. 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 at para. 27], and

2. It is not loss of earnings but, rather, loss of earning
capacity for which compensation must be made [Andrews at 251].

Furthermore, I conclude that there is no conflict between Steward
and the earlier judgment in Pallos. As mentioned earlier, Pallos
is not authority for the proposition that mere speculation of future loss of
earning capacity is sufficient to justify an award for damages for loss of
future earning capacity.

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

[Emphasis in original]

[64]       
I find that the plaintiff has met the burden in this case of showing a
real and substantial possibility that the injuries suffered in the accident
will interfere with her ability to earn income in the future.  The only work
she has pursued to date, before and after the accident, has been moderately
physical in nature.  At the moment, work in the service industry involving
physical exertion is the main type of work that she is qualified to do.  Both
waitressing and working as a residential care aide or licensed practical nurse
require the use of arms and shoulders, for example lifting heavy trays or
turning patients in beds.  In short, it is not a matter of speculation that the
plaintiff might be involved in physical work of this nature in the future.

[65]       
I also note that the plaintiff’s mother is a registered nurse, and I
accept that S.T. has a genuine intention to try to enter that field.  If she
does succeed in her application for entry to the licensed practical nurse program,
and if she does complete that program, the physical work demands on her will be
greater than in her current work, it would appear.

[66]       
Both the evidence of Dr.V., which I accept, and the evidence of Mr. McNeil,
which I view with caution (but which was uncontradicted), suggest that at the
current time S.T. may face difficulty in doing the work of a waitress or a licensed
practical nurse on a full-time basis.  Of course we would know more if she had
tried in the past to work full time, but she has not.  (I note that her counsel
did not suggest, in his submissions, that the reason for this was the accident. 
The plaintiff’s evidence essentially was that she had only worked part time
because that was the kind of work available to her.)

[67]       
I find that the degree of likelihood is low that the plaintiff will face
such difficulty that she will be unable to perform full-time work even in the
heavier job of a licensed practical nurse, including with the overtime
expectations described by L.B.  This assessment is confirmed by the plaintiff’s
conduct and words – her pursuit of a career as a licensed practical nurse shows
that she must believe that she will be able to do the job.  Indeed, that is
what she asserted in her letter accompanying her application to the program.

[68]       
To summarize, then, having found that the threshold of establishing a
real and substantial possibility of a future loss has been passed, I have also
found both that the future loss is likely to be short term, and that the degree
of probability that the future loss will materialize is low.

[69]       
I turn to the assessment of damages under this head.  Both counsel
submitted that the capital asset approach is the appropriate one in this case,
with a young person who has not established a clear career path.  I agree.

[70]       
Looking at the factors relevant to this assessment, I find that (for the
short term) S.T. has been rendered less capable overall of earning income from
all types of employment, and has lost the ability to take advantage of all job
opportunities which might otherwise have been available, insofar as those opportunities
require the kind of use of her shoulder that she says causes her occasional
pain, and I accept that they do.  She is somewhat less valuable to herself as a
person capable of earning income in a competitive labour market.

[71]       
In assessing future losses, both positive and negative contingencies
should be taken into account.  In the future, S.T. may find herself back on a
more academic path, a path which she appears to be well capable of taking, and
a path that would lead her to be non-reliant on her ability to do physical
work.

[72]       
Given that she has shown a somewhat tenuous attachment to the workforce,
she may leave the workforce for reasons unrelated to the accident.  Her
aspiration to become a licensed practical nurse may change, or she may not be
admitted to or complete the program.  By the time she completes the program, if
she does, she may have completely or almost completely recovered from the
shoulder injury.

[73]       
Finally, if she completes the program and finds herself unable to work full
time as a licensed practical nurse or to do the overtime work apparently
expected in that position, she is only 20 years of age and has time to embark
on a different career path that would be less physically demanding.

[74]       
Taking all of the evidence into account, all of the submissions of
counsel and the authorities to which they referred me, as well as the
contingencies I referred to, I have concluded that the award for lost future
earning capacity should be in the modest amount of $10,000.

[75]       
Counsel for the defendant argues that the plaintiff has failed to
mitigate her losses, pointing to two matters:  (1) that she did not
diligently pursue physiotherapy treatment or recommendations, such as regular
attendance for treatments, doing prescribed exercises, and wearing a brace on
her ankle when she played volleyball; and (2) that she has failed to
pursue training or education in a field that does not entail moderate or heavy
physical work.

[76]       
I have taken the latter point into account already, as a contingency in
my assessment of lost future earning capacity, and I will not consider it for a
second time in the context of mitigation.

[77]       
As for the former point, I agree with what was said in Turner v. Coblenz,
2008 BCSC 1801, [2008] B.C.J. No. 2561, para. 101:

The defendant bears the onus of proving the essential
elements of failure to mitigate, which are the following:

(a) That a qualified medical expert recommended that a
plaintiff undergo a particular form of treatment;

(b) That the plaintiff failed or refused to take the
recommended treatment although it was available to him or her; and

(c) That the plaintiff’s refusal or failure was
unreasonable, in that if the plaintiff had taken the recommended treatment,
there is some likelihood that he or she would have received substantial benefit
from it, and the treatment would not expose the plaintiff to significant risk.

[78]       
The plaintiff conceded that she missed some physiotherapy appointments
in the fall of 2007, but explained that she could not drive, and her mother was
working.  Thus, transportation, because the physiotherapist was some distance
away, created a barrier.

[79]       
The evidence of Ms. Ryan, an ICBC claims adjuster, on
cross-examination, confirmed that although the plaintiff and her mother on two occasions
raised the matter of financial support for the plaintiff’s transportation to
physiotherapy appointments, nothing was done to provide such support.

[80]       
Subsequently, in 2008, the plaintiff went back for further physiotherapy
and there is no suggestion that lack of transportation was a problem then.

[81]       
The plaintiff testified that she did the required exercises from time to
time, but not as diligently as she could have.  She also agreed that the
physiotherapy appeared to help her.  It appears to be common ground that the
physiotherapy was recommended by her doctor.

[82]       
What is lacking, however, is medical evidence that, if the plaintiff had
been fully compliant with the requirements of the physiotherapy, she would have
recovered more quickly and, if so, to what extent.  The defendant has not
established a likelihood that S.T.’s damages would have been reduced if she had
acted reasonably.

[83]       
On the evidence before me, I find that the defendant has not met the
burden to establish that the plaintiff has failed to mitigate her damages.

[84]       
There was no claim for cost of future care or (as I understand it) for
special damages.

[85]       
The amount of damages for past lost income was agreed at $1,037, some of
which has already been paid.

“Lynn Smith J.”