IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101201

Docket: S41425

Registry:
Vernon

Between:

Crystal Bergman

Plaintiff

And

Geoffrey Standen

Defendant

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]          
The plaintiff was injured in a motor vehicle accident on February 28,
2006. Liability for the accident is admitted. The matter is before the court
for an assessment of damages.

The Accident

[2]          
Ms. Bergman is 32 years old. She was 27 at the time of the
accident. She lives with her husband and children in Lavington, British
Columbia, a small community outside of Vernon. The accident happened at about
10 a.m. when Ms. Bergman and her two daughters were en route to Vernon to
purchase a birthday present for her husband. As she approached a stop sign on
Learmouth Road, where it intersects with Highway 6, she was struck by the
defendant. Mr. Standen was attempting to turn from the highway onto
Learmouth Road when he lost control of his vehicle. Ms. Bergman was
driving a 2003 Pontiac minivan. It was damaged beyond economic repair. She was
wearing her seatbelt and her daughters were properly restrained in their car
seats. Her daughters were not injured.

[3]          
The police attended. Although Ms. Bergman was shaken in the
collision, she did not require an ambulance. A police officer drove her and the
children home. Marty Bergman, the plaintiff’s husband, was at home sleeping. He
had just finished a graveyard shift. Ms. Bergman woke him up and he
remained up to look after the children while she went to bed.

[4]          
Ms. Bergman was sore immediately after the accident and felt worse
the next day. She went to her family doctor, Dr. Williams, to whom she
complained of stiffness in her neck and shoulders. In addition, as a result of
the airbag deploying, her chest was sore and she had a contusion on her nose.
Her wrist was also sore, likely as a result of bracing on the steering wheel in
anticipation of the collision. Finally, and most significantly, her lower back
was painful. Dr. Williams prescribed a muscle relaxant and Ms. Bergman
returned home. Over the next six months, all of her injuries resolved except
for the injury to her lower back.

[5]          
At the time of trial, some four and a half years after the accident, the
plaintiff’s lower back remained painful. She testified that the pain is such
that it affects many aspects of her life, including her ability to care for her
young family, maintain the family home, participate in recreational activities,
and simply enjoy life.

Position of the Parties

[6]          
The plaintiff argues that she has done all that can be reasonably
expected of her, and yet she remains significantly limited and in more or less constant
pain. It is her position that there is no realistic prospect that her low back
injury will improve. Thus, given the degree of pain she experiences and its effect
on virtually all aspects of her life, the plaintiff suggests that an award for
non-pecuniary damages in the range of $120,000 is appropriate.

[7]          
Although Ms. Bergman was a stay-at-home mother at the time of the
accident, and remains a stay-at-home mother today, she testified that she hopes
to return to the paid workforce once the youngest of her children reaches
school age. Despite not knowing where her working life may have taken her, Ms. Bergman
argues that an award for loss of future income earning capacity of $150,000 is
appropriate.

[8]          
In addition to the foregoing, Ms. Bergman argues that an award for
loss of housekeeping capacity, both past and future, is in order. She also claims
for various future care and rehabilitation costs, and seeks an in trust award
for her mother and husband as a result of their assumption of the bulk of her
housekeeping activities.

[9]          
For his part, the defendant concedes that the plaintiff was injured in
the accident but argues that the injury to her lower back is not as significant
as she portrays it. The defendant does not take the position that the plaintiff
lacks credibility, but rather that her evidence is, in some respects, not
reliable. The defendant also argues that the plaintiff did not properly mitigate
her losses. Finally, the defendant argues that the plaintiff has not met the
test set out in Perren v. Lalari, 2010 BCCA 140, thus no award for
loss of income earning capacity is appropriate.

[10]       
As to non-pecuniary damages, counsel for the defendant argues that an appropriate
award is in the range of $50,000 less 20 percent to account for the plaintiff’s
failure to mitigate. Further, counsel argues that no award should be made for
either the loss of housekeeping capacity or an in-trust claim based on the same
foundation. As to the cost of future care, the defendant concedes that some
costs are appropriate, but significantly fewer than those sought by the
plaintiff.

The Plaintiff’s Injuries

[11]       
In addition to seeing her family doctor, Ms. Bergman was assessed
by Dr. Travlos for purposes of this litigation on February 7, 2008, and
September 10, 2009. Dr. Coghlan carried out an independent medical
examination at the behest of the defendant on August 27, 2009. Both Dr. Travlos
and Dr. Coghlan are specialists in the field of physical medicine and
rehabilitation. The plaintiff was also assessed by Dr. Cunningham on April
7, 2009, and June 15, 2010. Dr. Cunningham is a general practitioner with
an interest in soft tissue injuries. In addition to seeing his own patients, he
sees people on referral from other general practitioners.

[12]       
It is beyond dispute that Ms. Bergman was a healthy, active young woman
prior to the accident. Other than relatively minor injuries sustained playing
organized sports, she had not experienced any significant injury in her life
prior to February 28, 2006. All of the doctors who have seen her agree that she
suffered a mechanical low back injury in the accident. Her injury, whatever its
extent, is not capable of being objectively proven. Ms. Bergman’s low back
was subjected to a plain x-ray, a bone scan and an MRI; none of these revealed any abnormality.

[13]       
Dr. Coghlan, in his September 21, 2009 report, expressed surprise
at the longevity of Ms. Bergman’s symptoms. This is, therefore, the kind
of case that McEachern C.J.S.C. (as he then was) had in mind when he observed
in Butler v. Blaylock (7 October 1980), Vancouver B781505 (B.C.S.C.):

I am not stating any new principle when I say that the Court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence ‑‑ which could be just his own evidence if the
surrounding circumstances are consistent ‑‑ that his complaints of
pain are true reflections of a continuing injury.

(See also: Price v. Kostryba (1982),
70 B.C.L.R. 397 (S.C.) at 399)

(a) Reliability of the Plaintiff’s Evidence

[14]       
Given the defendant’s position that the plaintiff’s evidence is
unreliable, it is convenient to deal with that issue first. Counsel for the
defendant points to three matters in support of this proposition. First, she
argues that there was a remarkable lack of detail in the plaintiff’s evidence.
In particular, Ms. Bergman acknowledged that she was not consistently
attending a recommended fitness program, but was unable to provide even broad
timeframes in relation to this. Further, and within the relatively recent past,
Mr. Bergman has been away from home for relatively long, but infrequent,
periods in connection with a new job. Ms. Bergman was unable to say when
or how long these absences were. Counsel for the defendant also argues that her
evidence lacked detail in relation to the relatively few medications she has taken
since the accident. Second, the defendant notes two aspects of a functional
capacity evaluation prepared by Sheila Branscombe, an occupational therapist
retained by the plaintiff. Ms. Branscombe concluded, based on the
responses to a questionnaire completed by Ms. Bergman, that her
demonstrated physical ability exceeded her perceived physical ability. Further,
Ms. Branscombe administered the “Waddell’s Inappropriate Symptoms
Questionnaire”, a test predicated on the assumption that there are approximate
anatomic and pathologic patterns to various kinds of pain. When the descriptions
of pain given by a patient do not correspond with expected patterns, the result
is said to be “inappropriate”. Ms. Bergman had a number of “inappropriate”
responses on this test. Finally, in Dr. Travlos’ first report, he
expressed the view that Ms. Bergman was focussed on her pain as opposed to
being focused on improving her function. For all of these reasons, the
defendant argues that Ms. Bergman’s complaints of pain and the limitations
she experiences as a result should be viewed critically and sceptically.

[15]       
I found Ms. Bergman to be a credible witness. There is no
doubt that she was unable to provide details on a variety of matters. It is not
the case, however, that her somewhat vague presentation was limited to areas
that might be perceived as harmful to her case. On the contrary, she was
equally vague about matters that would assist her case had she been able to
provide even a modest level of detail. For example, she maintained that she
took reasonably large and frequent dosages of Ibuprofen and Tylenol over the
past four and a half years. I accept that she did. She did not, however, keep
the receipts for the purchase of these medications. She explained that she
usually purchased them in conjunction with her weekly grocery shopping and that
she simply threw the receipts out without giving it further thought. In
summary, I accept that her inability to recall details is genuine and is simply
a reflection of the way she relates to the world.

[16]       
As to the testing administered by the occupational therapist, and Dr. Travlos’
view that Ms. Bergman is focussed on her pain as opposed to improving her
function, I regard these matters as related. While they do not cause me to
doubt her credibility, they are relevant to her reliability. Ms. Branscombe
gave evidence in addition to preparing a report. She found that the plaintiff had
difficulty describing the pain she was experiencing, which Ms. Branscombe
said is sometimes a feature of patients who are focussed on their pain. In the
process of attempting to understand Ms. Bergman’s functional capacity, Ms. Branscombe
showed her a series of pictures depicting various activities and asked her
whether she thought that she could do them, and if so with what level of
difficulty. Ms. Bergman’s responses were scored and revealed that she viewed
herself as capable of functioning in a “less than sedentary” way. On the other
hand, Ms. Branscombe had Ms. Bergman perform a number of physical tasks.
When her ability to complete those tasks was similarly rated, it revealed that she
had significantly more than “less than sedentary” capacity. On the Waddell’s
test, the plaintiff was asked questions about the nature of her pain; on four
of the seven questions, her answers were “inappropriate”.

[17]       
As against the foregoing, none of the professionals who assessed Ms. Bergman
thought she was anything other than candid and forthcoming. Further, and in
particular, Ms. Branscombe found that Ms. Bergman put forth a full
effort on all of the physical tests she was asked to perform. Her conclusion
was not simply based on casual observation. Rather, it was supported by collateral
observations. For example, in time-limited activities, Ms. Bergman would
sometimes be anxious to start and reluctant to finish when told to stop.

[18]       
In light of this, I am satisfied that Ms. Bergman was candid when
she gave her evidence and candid when she met with the various professionals
who have assessed her injuries. However, I also think that Ms. Bergman is
not as limited by her pain as she honestly believes she is. Other aspects of
her evidence support this conclusion. Ms. Bergman was a highly skilled
soccer player prior to the accident. She dearly loves the sport and continued
to play after the accident, although at a much reduced level. I found it mildly
surprising that she was able to play soccer at any level given her description
of the pain and the limitations she said it poses for her. Dr. Coghlan
reached a similar conclusion, writing that he found it “difficult to accept”
that she could tolerate playing soccer given the subjective pain that she
reported.

(b) Expert Evidence

[19]       
In his February 2008 report, Dr. Travlos concluded that Ms. Bergman’s
low back pain was likely mechanical in origin. He also concluded that she had
developed “secondary myofascial symptoms” in her buttocks and groin area as a
result of inactivity. Because her pain regularly interrupted her sleep, he
recommended two prescription medications to help her get to and stay asleep. He
expressed the opinion that if she was able to sleep, she would be more
refreshed and better able to manage the pain. Aside from these medications, Dr. Travlos
recommended conditioning and exercise. He did so in strong terms, writing:

…I would strongly recommend
that Ms. Bergman begin a structured conditioning program. Although she
states that she tries to exercise and keep active, she is not really doing a
structured activation or conditioning program. Additionally, simply going out and
playing a game of soccer once a week is really not helping her situation…Ms. Bergman
should have a three-to-four-day-a-week exercise routine of up to an hour and 20
minutes that includes cardiovascular training, stretching, strengthening and
specific core stabilizing exercises. I would encourage her to get going with
such a routine. Once she is more active and more supple, she should obtain the
services of a trainer to work with her to advance her program…

[20]       
In addition, Dr. Travlos expressed the view that even if Ms. Bergman
pursued the exercise regime and medications he suggested, she will likely
continue to remain as symptomatic as she was when he saw her. In other words,
his prescription was intended to improve her function rather than resolve her pain.
He said that “currently” Ms. Bergman was restricted from participating in
all chores and activities around the home, and “at the present time” she should
limit herself to lighter activities and look to her husband for assistance with
the rest. He felt that she remained restricted from fully participating in recreational
activities, by which I take him to include soccer. He thought that she should
continue to participate but increase her level of participation incrementally.
As to her role as a homemaker and mother, he felt that she was restricted due
to her injury, but as with other aspects of her life, her capacity should
improve if she implemented his recommendations.

[21]       
When Dr. Travlos saw Ms. Bergman some 17 months later, she
presented largely as she had on her first visit. In his report of September 10,
2009, he confirmed his earlier diagnosis (mechanical back pain) and rejected
any suggestion that her complaints were the product of a mood disorder or
depression. He noted that in the intervening period, specifically in June 2009,
some three months before the second assessment, Ms. Bergman gave birth to
her third child. In addition, she saw Tim Cooper, a kinesiologist, who assessed
her level of fitness and created an exercise regime for her.

[22]       
Dr. Travlos noted that the birth of Ms. Bergman’s third child
had two consequences. First, it exacerbated the sleep deprivation that she had
been experiencing as a result of her pain. Second, because she was
breastfeeding, she was unable to take the sleep aid medications that he had
earlier recommended. He suggested she take those medications once she finished
breastfeeding. I digress to note that Ms. Bergman was still breastfeeding
as of the trial.

[23]       
As to Ms. Bergman’s physical condition, Dr. Travlos found her
“quite deconditioned”. He noted that her efforts to engage in an exercise
program had been limited, in part because of her pregnancy and in part due to
unrelated medical difficulties she experienced during that pregnancy.
Notwithstanding all of this, he repeated, again in strong terms, the need for Ms. Bergman
to engage in an exercise program. He wrote:

…I would again strongly
recommend that Ms. Bergman return back to structured regular exercising.
She needs to focus on core strengthening exercises. Having said that, the
complete lack of improvement as described by her; and by Mr. Cooper
regarding her response to exercise, does not bode well for her to improve much
with further exercise. Regardless, she should be doing a regular exercise
program…With the exercise, her range of activity and functioning should
improve before her symptoms flare…

He remained of the view that Ms. Bergman’s symptoms
would likely remain unchanged for the indefinite future, although her level of
functioning may improve.

[24]       
In terms of Ms. Bergman’s ability to function, Dr. Travlos found
that she was capable of doing some home chores, but heavier chores were beyond
her capacity and will likely remain so. As to recreational activities,
exercises involving impact, such as running, and activities that significantly
engage her back, such as kayaking, were then and will likely remain beyond her
capacity. He recommended activities such as cycling and swimming. He noted that
participating in activities such as arts and crafts may be challenging for her,
given the nature of the posture she may have to maintain.

[25]       
Finally, as to the prospect of Ms. Bergman of returning to the paid
workforce, Dr. Travlos wrote:

In the long term, should Ms. Bergman
eventually decide to return back into the paid employment work force, she will
have to pick and choose jobs that allow her to manage her symptoms. In other
words, her access to the unrestricted job market will be reduced and will
remain so. She will need to find work that will allow for some movement, that
is not too physically demanding, but at the same time not too sedentary. She
will need to find work that allows her to sit, stand and move around in order
to accommodate her symptoms. She will, nevertheless, be capable of gainful, full
time employment once she finally makes the decision to do so…

[26]       
Dr. Coghlan reached similar diagnoses to those reached by Dr. Travlos;
however, he is more sanguine about Ms. Bergman’s future. As to diagnosis,
he wrote:

…Ms. Bergman did suffer an
acute soft tissue injury to her neck and upper back consistent with a whiplash
injury with associated headaches. This did resolve over a period of months with
no recurrent symptoms at the present time. I would classify her injury in this
regard as a Grade II whiplash associated disorder.

As to her lower back pain, he noted
the “quite major subjective symptoms” and the complete absence of any clinical
support or explanation of those symptoms. He expressed surprise at the
persistence of her condition. He encouraged her to become involved in a
swimming program and suggested some posture adjustments which, in addition to
general improvement in her condition, may serve to ameliorate her symptoms. He
classified her low back injury as a Grade II soft tissue injury and found no
evidence of any neurological involvement. He expressed the opinion that “it is
important for her to work on general conditioning to improve her functional
level”.

[27]       
Unlike Dr. Travlos, Dr. Coghlan would not restrict her
activity level provided she stabilizes her back. Additionally, as to the possibility
of Ms. Bergman returning to the workforce, Dr. Coghlan wrote: “I
would not restrict her activity level in terms of jobs on the basis of today’s
findings.”

[28]       
At various times since the accident, Ms. Bergman received physiotherapy and massage therapy, and
was treated by a chiropractor. In the first five months following the accident,
she had 20 physiotherapy treatments. She testified that she stopped going when
the insurance corporation stopped paying for the treatments. Ms. Bergman
also received some massage therapy during the first few months following the
accident. She said that she experienced some relief from these physiotherapy
and massage therapy treatments, but it was short-lived. Between January and
April 2007, Ms. Bergman received five chiropractic treatments; she
received very little relief as a result of these treatments and, in fact, often
felt worse afterwards. In the fall of 2007, she returned to physiotherapy, but
stopped when she could not longer afford the treatments. Finally, she tried
acupuncture on two occasions but experienced no relief as a result.

[29]       
Mr. Bergman was employed at a glass manufacturing facility in
Lavington at the time of the accident. Ms. Bergman was not covered under
his extended medical plan. As a result, she limited her attendances at
physiotherapy and massage therapy to times when the family could afford them. In
June 2008, Mr. Bergman secured a new job as an apprentice elevator
mechanic. After his probationary period ended, his extended health care plan
paid for some of Ms. Bergman’s therapies. In the fall of 2009, she returned
to massage therapy and continued those treatments off and on until August 2010.

[30]       
Dr. Cunningham assessed Ms. Bergman twice, first on April 7,
2009, and again on June 15, 2010. The latter is the most recent assessment of Ms. Bergman
in evidence. Ms. Bergman was pregnant in April 2009. Dr. Cunningham
suggested that following her pregnancy she should continue with physiotherapy,
begin core conditioning and, after she finished breastfeeding her child, take
the medication recommended by Dr. Travlos and others. Dr. Cunningham
agreed with Dr. Travlos’ diagnosis and ruled out depression as a source of
or explanation for Ms. Bergman’s pain. Nevertheless, he thought she should
try a course of antidepressant medication, not because of that medication’s
antidepressant qualities but rather because they can be of assistance in coping
with chronic pain. In June 2010, Ms. Bergman reported to Dr. Cunningham
that her pain was worse than it had been in April 2009. He observed that
although it had been a year since the birth of Ms. Bergman’s third child,
she remained deconditioned. He repeated his endorsement of sleep medication
once she finished breastfeeding.

[31]       
In summary, Dr. Cunningham supports the diagnoses of both Dr. Travlos
and Dr. Coghlan. He added his voice to the chorus of professionals
recommending more diligent physical conditioning.

[32]       
Finally, there is the functional capacity evaluation prepared by Ms. Branscombe
in September 2009. She noted various strength limitations based on the testing
she had administered. For each of those limitations, she recommended exercise
to ameliorate the condition. She also noted significant mobility limitations,
specifically when Ms. Bergman was required to sit, stand or walk for any
significant length of time. Ms. Branscombe did not see exercise as being
capable of mitigating these limitations; however, a number of mechanical and
other aids might. Lastly, Ms. Branscombe noted limitations on Ms. Bergman’s
ability to work at low or overhead postures.

Non-pecuniary Damages

[33]       
As earlier noted, Ms. Bergman suffered a Grade II whiplash-type
injury to her neck. This injury was painful and symptomatic for approximately
six months. She also suffered a contusion to her nose, some discomfort in her
chest, and a sore wrist, all of which resolved within six months. The most
problematic and persistent injury is the mechanical injury to her lower back.
The pain associated with this injury has affected Ms. Bergman’s sleep on a
more or less continuous basis since the accident. Because of the pain she
experiences and her fatigue, she has found that she has much reduced patience
for her children. She feels considerable guilt as a result.

[34]       
Prior to the accident, Ms. Bergman took great pride in her house
and her yard. She described herself as a meticulous housekeeper, proud of her
role as a stay-at-home mother. After the accident, because she had difficulty
bending over, she often left the dishwasher full and did not do the laundry.
The Bergmans have a canister-style vacuum, and Ms. Bergman found that she
could vacuum perhaps one room at a time before becoming too tired and sore to
carry on. As a result, she simply did not vacuum to the degree or with the
frequency she had prior to the accident. She took pride in making meals for her
family prior to the accident; since, she has often not made dinner or prepared
much less elaborate meals. This, too, causes her to feel significant guilt.

[35]       
Ms. Bergman’s parents live in Lavington. She enjoys a close
relationship with both of them. Her mother has taken to regularly visiting her
daughter. She often does the laundry and sometimes cleans the oven. Prior to the
accident, she would sometimes come over simply to share a cup of coffee. When
she comes over now, she does housework. She also helps with the groceries, accompanying
Ms. Bergman on grocery-shopping outings and carrying the bags of groceries
to and from the car.

[36]       
Prior to the accident, Ms. Bergman and her mother used to enjoy
taking trips to Kelowna. They stopped taking these trips because Ms. Bergman
is incapable of carrying her young children, and leaving that to her mother is
more than her mother can reasonably accommodate.

[37]       
As earlier noted, Ms. Bergman played soccer at a high level prior
to the accident. She played varsity soccer for the University of Lethbridge for
one year following high school. Since returning to the Vernon area, she has
played continuously on competitive women’s teams. She played outdoor soccer in
the spring and summer, and indoor soccer in the winter. Since the accident,
while she has continued to play intermittently, the manner in which she plays
has changed dramatically. She used to be an aggressive and fast striker. She
plays midfield now and does so poorly. She says that she feels like a pylon.
Prior to the accident, she would resent being substituted; she would try to
play all game, every game. Since the accident, she welcomes substitutions and
misses games on a regular basis. She managed to finish the summer soccer
outdoor season in 2006 following the accident. She could not recall if she
played indoor soccer over the winter of 2006-2007, but she did play most of the
following outdoor season. She played the indoor season in the fall of 2007 and
the outdoor season of 2008.

[38]       
Even though Ms. Bergman continued to play soccer, she testified
that she suffered as a result. She said that she was careful to rest for a
couple of days before each match and had to rest the day after. She testified
that playing soccer has always been a significant part of her life. In addition
to the physical activity and the enjoyment she received from simply playing the
game, it was also an opportunity to get out of the house and experience some of
the social aspects of an organized activity. She did not want to simply give
up, although she has not played since the fall of 2008.

[39]       
Ms. Bergman experienced three medical situations, unrelated to the
motor vehicle accident, which affected her ability to follow some of the
recommendations her healthcare providers made. First, probably in the spring of
2008, she had difficulty with her ovaries and was unable to exert herself for
some time. In the fall of 2008, she became pregnant with her third daughter.
She had difficulties during that pregnancy, which also limited her ability to
exert herself. Finally, she hurt her wrist in the spring of 2008, although not
seriously.

[40]       
Ms. Bergman testified that her mother helps her a great deal in caring
for the children. The Bergmans, as a family, eat dinner at her mother’s house
two or three times per week. Ms. Bergman is there almost every day for
other purposes.

[41]       
Ms. Bergman and Mr. Bergman used to enjoy kayaking and
mountain biking together. Since the accident, they have sold their kayaks, and
although Mr. Bergman purchased a new mountain bike for Ms. Bergman in
the hope that she would be able to ride it, that has proven beyond her ability thus
far. Prior to the accident, Ms. Bergman and Mr. Bergman also enjoying
camping and golfing. They rarely do either now. When they do camp, they do so
at her aunt’s cabin. Ms. Bergman tried sleeping in their tent but found it
too uncomfortable. As a result, she sleeps in the cabin with the youngest child
while her husband and the two older girls sleep in the tent.

[42]       
As earlier noted, Ms. Bergman took significant pride in the way she
kept her yard. She had planted a vegetable garden, flowers and shrubs. Since
the accident, she has not planted the vegetable garden and has largely ignored
the upkeep and general maintenance of the yard.

[43]       
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick
J.A. set out a non-exhaustive list of factors to be considered in an award of
pecuniary damages. That list includes the following:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(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)         the plaintiff’s stoicism [in
the sense that stoicism ought not to penalize a plaintiff]…

[44]       
I am satisfied that Ms. Bergman has been in relatively constant
discomfort and pain in the area of her lower back since the motor vehicle
accident. While I am not persuaded that her pain has been or is as significant
as she perceives it, I am satisfied that it is ongoing and significant. I
accept that she is focussed on her pain, which accounts for much of the
discrepancy between how she describes her pain and its actual nature. I am
satisfied that the pain that Ms. Bergman does experience has significantly
affected her ability to function as a mother and homemaker. I accept that she
has significantly reduced patience when dealing with her children and is unable
to provide a home in the way that she did prior to the accident; both are a
source of guilt. Finally, Ms. Bergman was physically active prior to the
accident, which was a significant source of enjoyment for her and the rest of the
Bergman family. Even allowing for the overstatement of her pain, I am satisfied
that virtually all of the recreational activity she formerly enjoyed are now
either no longer open to her or are significantly less enjoyable.

[45]       
Finally, I am satisfied on a balance of probabilities that Ms. Bergman’s
condition will not significantly improve. On the other hand, if she were to
follow the recommendations of Dr. Travlos, including the pursuit of a
structured and reasonably rigorous conditioning program, and learned to focus
on improving her function as opposed to dwelling on the pain, her function will
improve and the impact of her injury on all facets of her life will moderate,
although it will never abate entirely.

[46]       
The plaintiff argues that the case of Fox v. Danis, 2005 BCSC
102, most closely approximates Ms. Bergman’s situation, although the
injuries suffered by the plaintiff in that case are said to be less severe.
Other cases to which the plaintiff points include: Dycke v. Nanaimo Paving
and Seal Coating Ltd., 2007 BCSC 455; Whyte v. Morin, 2007 BCSC
1329; Pelkinen v. Unrau, 2008 BCSC 375; and Ashmore v. Banicevic,
2009 BCSC 211.

[47]       
In Fox, the 34-year-old plaintiff suffered moderately
severe soft tissue injuries. In addition, some eight months after the accident,
a disk in her lumbar spine herniated, which required surgical repair. The
surgery reduced but did not eliminate her pain. At para 32, Sinclair-Prowse J.
summarized the plaintiff’s injuries as follows:

…the Plaintiff suffered a
moderately severe soft tissue injury to her cervical and lumbar spine. In
addition, she suffered a prolapsed disc in her lumbar spine and continues to
suffer from a compression of one of her nerves at the L5-S1 level. These
injuries cause the Plaintiff periodic pain in her neck and right shoulder and
chronic pain in her lumbar spine, left buttock, and left leg. All of these
injuries are permanent.

She awarded the plaintiff $100,000 in general damages. The
award was upheld on appeal: 2006 BCCA 324. The plaintiff’s injuries in Fox
are significantly more serious than the injuries sustained by Ms. Bergman.

[48]       
In Dycke, Warren J. awarded the plaintiff $125,000 in
non-pecuniary damages, in circumstances that he found “remarkably similar” to
those in Fox (at para. 155).

[49]       
Bruce J. assessed non-pecuniary damages in Pelkinen at $90,000,
which she reduced by 10 percent because of the plaintiff’s failure to mitigate
her loss in regard to the physical injuries (at para. 94). The plaintiff’s
most significant injury was chronic myofascial pain in her shoulders and neck.
The condition was so serious that Ms. Pelican underwent repeated cortisone
and anaesthetic block injections. The condition gave rise to severe and
recurring headaches, as well as sleep disturbance and anxiety. Over and above
the foregoing, the plaintiff suffered a panic disorder associated with driving.
The 10 percent reduction took into account the plaintiff’s debilitating
psychological disorders, which “undoubtedly had the effect of reducing her
motivation to exercise” (at para. 92). Again, the injuries sustained by
the plaintiff in Pelkinen are more serious than those suffered by Ms. Bergman.

[50]       
Whyte and Ashmore are both decisions of C.L. Smith J. In
both cases, the plaintiffs were awarded $80,000 in non-pecuniary damages. In
both cases, the plaintiffs were described as either stoic or committed to
working through their pain. The injuries and associated pain sustained by the
plaintiffs in Whyte and Ashmore are similar to those described by
Ms. Bergman but, I am satisfied, somewhat more serious than those she
actually has suffered.

[51]       
For his part, the defendant points to Salzmann (Guardian ad litem of)
v. Bohmer, 2009 BCSC 1586; Dial v. Grewal, 2010 BCSC 759; and Fennell
v. Hiebert, 2010 BCSC 824.

[52]       
In Dial, MacKenzie A.C.J. awarded the plaintiff $50,000 in
non-pecuniary damages for injuries that, while ongoing, only gave rise to
intermittent pain and difficulty as of the date of trial. On balance, the
injuries suffered by the plaintiff in Dial are not as serious as those
suffered by Ms. Bergman.

[53]       
The plaintiff in Fennell was 10 years old at the date of the
accident and 22 at the date of trial. She suffered “mild to moderate soft-tissue
injury to her neck and right shoulder” (para. 20). That injury was
asymptomatic for two or three years, but the symptoms returned when the
plaintiff reached an age where she was able to participate in heavy chores on
her family farm. At paragraph 25, Rogers J. concluded that the plaintiff’s
symptoms would not disappear. Her injuries were clearly less serious and had a
much more modest effect on her life than the injuries sustained by Ms. Bergman.

[54]       
Finally, in Salzmann, Melnick J. awarded the plaintiff $35,000 in
non‑pecuniary damages. He reduced that award by 20 percent for Ms. Salzmann’s
failure to mitigate. This award was based on a finding that she suffered
“chronic regional myofascial pain” in the soft tissue surrounding her cervical
spine. Notwithstanding her injuries, her life “carried on much as normal” (para. 20).
Her injuries were less serious than those suffered by Ms. Bergman.

[55]       
In Graham v. Rogers, 2001 BCCA 432, Rowles J.A. summarized the
law relating to mitigation at para. 35:

Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the
onus of proof on that issue…

[56]       
The defendant argues that any non-pecuniary damage award should be
reduced by 20 percent for Ms. Bergman’s failure to mitigate. Counsel for Ms. Bergman
argues that the defendant has not proven any failure to mitigate.

[57]       
The defendant points to two areas in which the plaintiff has failed to
follow the suggestions and advice of the various medical professionals who have
assessed her. The first and most significant relates to exercise, and
particularly core conditioning. The second, and much less significant area,
relates to the plaintiff’s failure to follow up on a referral made by her family
physician to Dr. Etheridge, a general practitioner with a particular
interest in patients suffering from chronic pain.

[58]       
In May 2010, Dr. Williams referred Ms. Bergman to Dr. Etheridge.
As of the trial in September 2010, Ms. Bergman had not yet made an
appointment to see Dr. Etheridge. She testified that she called his office
and spoke to his secretary or receptionist. From that conversation, and perhaps
from conversations with her general practitioner, she understood that the
primary form of treatment offered by Dr. Etheridge involved injections of
pain relieving drugs. Ms. Bergman is open to that therapy, but not until
she finishes breastfeeding. In my view, her stance is reasonable. Thus, I find
that her failure to follow up with Dr. Etheridge does not amount to a
failure to mitigate.

[59]       
As to her participation in an exercise program, the issue is not as
clear. As earlier noted, Dr. Travlos has twice strongly recommended a
conditioning program. As a result of his first recommendation, Ms. Bergman
saw Tim Cooper, a kinesiologist. He carried out an assessment in March 2008,
and recommended a fitness program customized to Ms. Bergman’s limitations
and needs. He found her to be deconditioned with a reduced level of aerobic
fitness and an unhealthy body mass index. The program that he recommended
involved eight supervised sessions following which Ms. Bergman was to
exercise on her own.

[60]       
Mr. Cooper reassessed Ms. Bergman after the completion of the supervised
aspect of his recommended regime. He found her motivation to be “fair to good”.
He expressed his conclusion in that way because Ms. Bergman had cancelled
three of the eight sessions. Two of those occasions were as a result of the
difficulties she experienced with her ovaries. The cancelation on the third
occasion is simply unexplained. I digress to note that, consistent with the
other evidence, Ms. Bergman reported to Mr. Cooper at the end of the
supervised sessions that she was feeling about the same as she felt when she began
the program. However, Mr. Cooper found that she demonstrated “good
improvement of her lumbar spine function”. He also found, in spite of Ms. Bergman’s
intermittent attendance, that she had improved somewhat in her overall
conditioning.

[61]       
There is no question that Ms. Bergman could have done more in the
way of exercise and conditioning. The issue, however, is whether it has been
established that she failed to take reasonable steps to limit her losses. At
the time of the accident, Ms. Bergman was the mother of two young
children. In the four and a half years since the accident, she has given birth
to a third child. For a significant period between the date of the accident and
her third pregnancy, Ms. Bergman was physically unable to participate in any
significant way in an exercise regime. Once she had recovered sufficiently to
allow her to do that (specifically by the spring of 2008), she did participate,
albeit intermittently. By October 2008, she was pregnant. During her pregnancy,
she had medical complications that made
it difficult, if not impossible, for her to significantly exert herself. She
did, however, participate in exercises at home. In addition, she attempted,
perhaps unwisely, to continue to play soccer.

[62]       
On balance, I am not satisfied that the defendant has established a
failure to mitigate. That is not to say, however, that Ms. Bergman cannot
now commit to an exercise program and benefit significantly from it. The impediments
to her ability to follow up on the sensible recommendations of the doctors,
including sleep medication, are or shortly will be past. I will take this into
account in assessing her non-pecuniary damages, as well as the other heads of
damage.

[63]       
To summarize, Ms. Bergman was a 27-year-old mother of two young children,
who suffered a Grade II whiplash injury to her neck and upper back, which
resolved after several months and left her with no recurrent symptoms. She also
suffered contusions, bruises to her face and chest, and a sore wrist, which resolved
without ongoing difficulties shortly after the accident. Finally, and most
significantly, she suffered a mechanical injury to her lower back that, I am
satisfied, caused her significant pain and discomfort in the four and a half
years since the accident. I am not persuaded that the discomfort is as
significant as Ms. Bergman describes it, but it is nevertheless
significant. I am satisfied that her lower back will remain symptomatic
indefinitely. If, however, she follows the advice of Dr. Travlos and
others, and commits to a program of physical conditioning and determines to
work through the limitations that her low back may present, rather than dwelling
on them, the degree to which that injury will affect her life in the future
will moderate. In light of this, I am satisfied that an appropriate award for
non-pecuniary damages is $77,500. This amount includes $2,500 for past loss of
housekeeping capacity for reasons I will explain below.

Cost of Future Care

[64]       
Ms. Branscombe prepared a cost of future care report based on her
own assessment of Ms. Bergman, as well as the recommendations of Dr. Travlos
and Dr. Cunningham. The services and aids that she analysed fall into
seven categories: exercise, pain therapies, self-care tools, homemaking, yard
work, leisure and vocational. Christiane Clark calculated the present value of
these various aids and therapies in her report dated July 6, 2010. They total
some $284,000.

[65]       
In Kuskis v. Hon Tin, 2008 BCSC 862 at paras. 163-164,
Dickson J. summarized the principles applicable to the cost of future care as
follows:

[163]    An award for the cost of future care is notional and
imprecise in nature: Strachan (Guardian ad Litem of) v. Reynolds, 2006
BCSC 362. The court must consider evidence regarding what care is likely in the
injured person’s best interest and calculate its present cost, with appropriate
adjustment for contingencies in all of the circumstances of the case: Courdin
v. Meyers, 2005 BCCA 91.

[164]    In making an award for
future care costs the court must take into account both what is medically
required and what expenses the plaintiff will likely incur. Items and services
that the plaintiff is unlikely to use in the future cannot be justified as
reasonably necessary aspects of the cost of future care: Izony v. Weidlich,
2006 BCSC 1315.

[66]       
The exercise assistance consists of a kinesiology assessment, supervised
exercise sessions following that assessment, and an annual pool pass. All
of these are, in my view, reasonably required to allow Ms. Bergman to
achieve the greatest reasonably possible functional capacity and to ameliorate
her ongoing pain. She is entitled to the cost of a kinesiology assessment at
$619, the cost of supervised exercise sessions during the next year in the
amount of $2,300, and a pool pass for the balance of her expected life span (52
years) on the order of $8,775 (inclusive of HST).

[67]       
As to “therapies”, I consider that a chronic pain assessment is
reasonably necessary. The O’Ryan Pain Management Assessment is the least
expensive, and there is no evidentiary basis for preferring any of the other
assessment programs. Ms. Bergman is therefore entitled to $2,457 for the
cost of that program. I am not persuaded that any award for future acupuncture
treatment is appropriate, given that Ms. Bergman tried it in the past and
found it to be of no therapeutic benefit. She is, however, entitled to an
elliptical trainer which provides low impact cardiovascular training. The cost
of that equipment is $2,022 (based on the frequency of replacement and other
assumptions in Ms. Clark’s report). I am not persuaded that a hot tub is
reasonably required, in part because I expect Ms. Bergman’s pain to
moderate with improved fitness and improved rest, and in part because when that
occurs, the relief that can be achieved through a hot bath will likely be as
therapeutic as the relief achieved with a hot tub.

[68]       
All of the self-care aids set out in Ms. Branscombe’s report are
reasonably required. They total, inclusive of HST, $2,979.

[69]       
As to homemaking equipment, all of the items in Ms. Clark’s report
(except the bottom-mount freezer fridge, the upright freezer and the
self-cleaning range) are reasonably necessary. The appliances mentioned as
exceptions are no doubt necessary, but not their entire cost. There was no
evidence as to what, if any, additional cost is associated with appliances
configured or outfitted in the manner just noted. In the result, I am not
prepared to make any award for those items. The award for the other homemaking
equipment is $3,643.

[70]       
As to homemaking services, Ms. Branscombe wrote at p. 5 of her
report:

…Because she should stay
active, and because I anticipate functional improvement with therapy and
adaptive aids, I do not feel that ongoing regular homemaking assistance will be
required for Mrs. Bergman. I have recommended that Mrs. Bergman have
homemaking assistance during the period of time in which she is participating
in an active program with a gradual reintroduction to homemaking tasks…

I am satisfied that Ms. Bergman
will require routine housekeeping assistance for the next year, and reduced
routine homemaking assistance for the year following. I am also satisfied that
the cost and extent of those services are six hours per week at $22 per hour
during the first year, and three hours per week at $22 per hour during the next
year. Rounded, the present value of that service is $10,000.

[71]       
Next, I am satisfied that Ms. Bergman will require assistance for
the heavier seasonal homemaking tasks indefinitely. Again, I accept the cost
and extent of that service as set out in Ms. Branscombe’s report. The
present value of those services amounts to $9,309.

[72]       
The Bergmans live in a single-family house on a level, fairly large,
landscaped lot. As earlier noted, Ms. Bergman enjoys and took considerable
pride in maintaining her yard. I accept Ms. Branscombe’s conclusion that Ms. Bergman
will require 10 hours of assistance per year with the seasonal heavy yard work
that Ms. Bergman, as opposed to Mr. Bergman, has traditionally
performed. I am satisfied that the hourly cost of such assistance is $27 per
hour and that it is needed, not for the balance of Ms. Bergman’s life, but
rather for the next 40 years. The present value of that assistance is $5,770.

[73]       
I accept that Ms. Bergman traditionally did much of the snow
shovelling necessary in the winter. Further, I accept that she will require
assistance in that task in future. I do not accept that she will require that
assistance permanently or to the degree estimated by Ms. Branscombe. There
will, therefore, be an award in the amount $1,000 for the future costs of
assistance with snow removal.

[74]       
I am satisfied that the long-handled garden equipment recommended by Ms. Branscombe,
as well as the construction of raised garden beds are reasonably required to
allow Ms. Bergman to enjoy that which she previously enjoy without unduly
straining her lower back. The cost of those items (i.e., raised garden beds,
telescopic garden tools, standing weeder, rolling seat with tool tray and
folding kneeler) comes to $3,671.

[75]       
Next, Ms. Branscombe made a number of recommendations for
ergonomically designed furniture and other household items. Of the items
recommended, I am not persuaded that an electric bike, a hands-free telephone
system, or a wireless computer mouse are reasonably necessary or that they are
items that would not otherwise be routinely acquired by Ms. Bergman. I am
satisfied that monitor risers, an ergonomic keyboard, an under-desk footrest, a
sit/stand stool, and a portion of the cost of an ergonomic chair and adjustable
desk are reasonably necessary. These items, except for the adjustable desk and
ergonomic chair, come to $1,611. I award an additional $3,000 for the estimated
difference in the cost of an ergonomic chair as opposed to an ordinary chair
and a height adjustable desk and an ordinary desk. As to the electric bike, it
was recommended in order to allow Ms. Bergman to enjoy cycling with her
family, an activity she previously enjoyed but now finds beyond her abilities. However,
I am not persuaded that cycling will be beyond her abilities if she commits to
an exercise program and takes advantage of the other advice and therapies available
to her.

[76]       
Finally, Ms. Branscombe recommends a vocational assessment together
with a further ergonomic workplace assessment and a functional capacity
evaluation. For reasons that will become apparent when I deal with the cost of
future care claim, I am satisfied that a vocational assessment is
reasonably necessary. Ms. Bergman is entitled to $3,077 in that regard.

Loss of Future Capacity

[77]       
The Court of Appeal most recently revisited this issue in Perren.
Both the facts and the law in that case assist in resolving the loss of future
capacity aspect of the plaintiff’s claim. The plaintiff in Perren suffered
soft-tissue injuries in a motor vehicle accident. She was employed with the
provincial government in a management position at the time of the accident. Her
symptoms were found to be chronic and indefinite in duration. Although the
plaintiff had not and was unlikely to give up her existing occupation, the
trial judge awarded $10,000 by way of compensation for loss of future earning
capacity. This conclusion, however, he based largely on the analysis in Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, as
well as Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.), and Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.). Garson J.A. set aside
the award. In doing so, she reviewed the authorities and from them concluded,
at para. 32, that “[a] plaintiff must always prove…that there is
a real and substantial possibility of a future event leading to an income loss.”
If the plaintiff establishes such a possibility, then the authorities recognize
two different ways of valuing the loss. One is to value the loss of
earnings, an approach most useful when the plaintiff has earning experience and
the loss can be quantified in that way. The other is to value the capital asset
and more specifically the degree to which that capital asset has been impaired.
(See also: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.))

[78]       
The defendant takes the position that the plaintiff has not satisfied
the first test articulated in Perren, namely, that there is a real and
substantial possibility (as opposed to mere speculation) that the plaintiff
will suffer a future event leading to an income loss.

[79]       
I am satisfied that the plaintiff has established a real and substantial
possibility of a future event giving rise to an income loss. Ms. Bergman
is not particularly academically inclined. Although she attended the University
of Lethbridge for a year, she did that primarily because of the opportunity it
gave her to play varsity soccer. She has not furthered her education since. In
addition, her interests and work experience have almost invariably inclined
toward either the outdoors or more physical activities. Her parents have
pursued a number of small business ventures. Ms. Bergman worked in those
enterprises from a young age. For several years, she worked in a coffee shop
run by her older sister where she made muffins, bussed tables and waited on
customers. It was physical work. Based on all of the evidence, I am satisfied
that Ms. Bergman has a good work ethic and is inclined towards physical as
opposed to what might be described as more cerebral endeavours.

[80]       
Ms. Bergman does not have an established record of employment
because of the conscious choice she and her husband made to have and raise
their children to school age with the benefit of a stay-at-home mother. I
accept that Ms. Bergman planned to and will return to work when her
youngest child reached school age. I accept that the sort of work she is
destined to do will likely involve an emphasis on physical as opposed to mental
exertion. There is a mill in Lavington that Ms. Bergman thought about
applying to. She impresses me as the sort of person who would find work of that
nature rewarding and challenging. It is with a view to those real and
substantial possibilities that the question of her indefinite, albeit
moderating disability, needs to be assessed.

[81]       
Given the absence of an employment history and the absence of a readily
available method by which to quantify this aspect of Ms. Bergman’s claim,
I propose to use the capital asset approach described by Garson J.A. in Perren.

[82]       
In Kwei at para 25, Taggart J.A. quoted with approval the four
factors that Finch J. (as he then was) expressed at para. 8 in Brown
to consider in assessing the value of the lost asset. Those factors are:

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

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

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

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

All four of these considerations apply to Ms. Bergman.

[83]       
I agree with Dr. Travlos’ assessment in his September 10, 2009
report at p. 5, where he wrote:

…should Ms. Bergman
eventually decide to return back into the paid employment work force, she will
have to pick and choose jobs that allow her to manage her symptoms. In other
words, her access to the unrestricted job market will be reduced and will
remain so. She will need to find work that will allow for some movement, that
is not too physically demanding, but at the same time not to sedentary. She
will need to find work that allows her to sit, stand and move around in order
to accommodate her symptoms. She will, nevertheless, be capable of gainful,
full time employment once she finally makes the decision to do so…

[84]       
I recognize that Dr. Coghlan, in his September 21, 2009 report,
concluded that he would “not restrict her activity level in terms of jobs on
the basis of today’s findings”. I am not sure that the opinions of the physiatrists
are in conflict. Whether they are or not, I am satisfied that Ms. Bergman
has established an impairment of her capital asset, being her ability to earn
an income in the future. Valuing that loss is necessarily an imprecise
exercise. Lacking any better measure, I consider that an award equivalent to
between one and two years of Ms. Bergman’s likely future annual income to
be reasonable. I fix her loss of future earning capacity at $65,000.

Loss of Housekeeping Capacity and In Trust Claim

[85]       
The plaintiff seeks an award of $50,000 for past and future loss of
housekeeping capacity relying, in part, on the principles summarized by
A.F. Wilson J. in Paller v. Paller, 2004 BCSC 977. In
addition, the plaintiff seeks an in trust award for both Mr. Bergman and Mrs. Magnus,
the plaintiff’s mother, in the sums of $8,000 and $5,000 respectively.

[86]       
The defendant argues that the evidence does not support any award for
loss of housekeeping capacity, nor should there be an in trust award for the
plaintiff’s husband or her mother.

[87]       
In Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R.
(3d) 178 (C.A.), leave to appeal ref’d [1995] S.C.C.A. No. 263, Gibbs
J.A., on behalf the majority (3:2), held at para. 9 that:

…housekeeping and other spousal
services have economic value for which a claim by an injured party will lie
even where those services are replaced gratuitously from within the family.

[88]       
How to value such a claim is not comprehensively addressed in Kroeker,
although, Gibbs J.A. notes at para. 29:

…It will be the duty of trial
judges and this Court to restrain awards for this type of claim to an amount of
compensation commensurate with the loss. With respect to other heads of
loss which are predicated upon the uncertain happening of future events
measures have been devised to prevent the awards from being excessive. It would
be reasonable to expect that a similar regime of reasonableness will develop in
respect of the kind of claim at issue in this case.

[89]       
In McTavish v. MacGillivray, 2000 BCCA 164, Huddart J.A. held
that the loss of housekeeping capacity is to be compensated for on a
replacement cost basis. That is so even when the services are performed
voluntarily or gratuitously by other family members. The trial judge in McTavish
made an award for loss of past housekeeping capacity that he characterized as
“pecuniary general damages”. Huddart J.A. concluded that was an acceptable
characterization of such an award. At para. 69, she also noted that the
loss of housekeeping capacity may affect the amount of non-pecuniary damages in
at least two circumstances: first, for those housekeeping tasks that the
plaintiff performed but with increased difficulty or pain; and second, for
those tasks that were left undone because they were beyond the plaintiff’s
capacity.

[90]       
The evidence dealing with this issue comes from the plaintiff, her
husband, and her mother, Shirley Magnus.

[91]       
Ms. Bergman testified that she took pride in the manner that she
kept her house and yard prior to the accident. Since the accident, she has
difficulty bending down and, as a result, has often left the dishwasher full. Operating
the vacuum cleaner is also challenging, so much so that she is only able to do
one room at a time and often does not get the house entirely vacuumed. This is
also true with respect to cleaning the floors, especially in the bathrooms and
kitchen. Additionally, she testified that she has difficulty lifting and
bending to the degree required to do the laundry and in making dinner when that
involves using the oven. Because of all these limitations, she testified that
both her mother and her husband have assisted in these tasks, to the extent
that they are done at all. In addition, her mother accompanies her grocery
shopping and carries the bags of groceries and sometimes the children as
necessary.

[92]       
Mr. Bergman testified that prior to the motor vehicle accident, Ms. Bergman
was responsible for virtually all of the chores in the house. He would assist
with some of the heavier tasks both inside and outside the house, but they
arranged their lives such that, to the extent possible, their weekends were
left free to be enjoyed doing recreational activities. He testified that since
the accident, Ms. Bergman continues to try to do housework, but she is
simply unable to do many of the tasks. As a result, he does the laundry, most
of the vacuuming, and many of the other routine housekeeping chores. He also
does most of the yard maintenance work, to the extent that time permits.

[93]       
Mrs. Magnus testified that before the motor vehicle accident, she
and her husband would visit her daughter and her son-in-law approximately once
or twice a week. She confirmed the high standards to which her daughter adhered
in keeping her house and yard. Those are standards that Mrs. Magnus
herself aspires to. She testified that since the accident, she visits her
daughter much more frequently and has noticed, on many occasions, unwashed
dishes in the sink, laundry to be done and unattended yard work. Mrs. Magnus
has her daughter and grandchildren over more frequently since the accident. Ms. Bergman
estimates that she is at her mother’s house almost every day and frequently for
meals.

[94]       
Mr. Bergman estimated that the additional time that he spends on
housekeeping and yard work as a result of Ms. Bergman’s inability to
attend to those matters is approximately 8 to 10 hours per week. Mrs. Magnus
did not provide a specific estimate of the additional time that she devotes to
her daughter’s home and domestic responsibilities, but I infer that it is
approximately 5 or 6 hours per week. I accept the evidence of Mrs. Magnus
and Mr. Bergman without reservation. They both impressed me as honest,
careful and practical witnesses. Mr. Bergman in particular impressed me as
conservative in his description of the assistance the plaintiff requires and
that he has required.

[95]       
Bearing in mind the restraint counselled by Gibbs J.A. in Kroeker,
I consider it reasonable to value the additional assistance provided by Mr. Bergman
and Mrs. Magnus at $15 per hour. I assess that Mrs. Magnus’
additional contribution at 5 hours per week and Mr. Bergman’s at 7
hours per week. Rounded, the annual cost of Ms. Bergman’s loss of
housekeeping capacity prior to trial is $9,000.

[96]       
For about a year, specifically from October 2008 until December 2009, Ms. Bergman
was pregnant, and as a result of medical issues unconnected to the motor
vehicle accident, she was unable to exert herself to any significant degree.
But for the motor vehicle accident, during that period, she would have been
able to do some housekeeping, but not all of the tasks that she would
ordinarily have done. I assess Ms. Bergman’s past loss of housekeeping
capacity at $30,000.

[97]       
As alluded to above in dealing with non-pecuniary damages, I am
satisfied that a number of housekeeping tasks were simply left unattended to
over the past four years. I have increased the non-pecuniary damage award that
I would otherwise have made by $2,500 to reflect that circumstance.

[98]       
I am not persuaded that any award for future loss of housekeeping
capacity over and above the award I have concluded is reasonable under the cost
of future care analysis.

[99]       
The principles governing an “in trust” claim were summarized by D. Smith
J. (as she then was) in Bystedt (Guardian ad litem of) v. Hay, 2001 BCSC
1735 at para. 180. The first of the six factors noted in that case is that
the services which an “in trust” claim is intended to address must be services
that “replace services necessary for the care of the plaintiff as a result of
the plaintiff’s injuries”. The second principle is that the services must be
“over and above what would be expected from the family relationship”. There is
no evidence in this case, aside from the evidence relating to housekeeping
services broadly defined, that either Mrs. Magnus or Mr. Bergman were
required to provide services for the care of the plaintiff. In the result, I am
not satisfied that there should be any award in the form of “in trust”
compensation beyond that already provided for.

Special Damages

[100]    
As I understand the parties’ positions, they agree that Ms. Bergman
is entitled to $2,481.94 for the total cost of an elliptical training machine,
physiotherapy treatment, chiropractic treatment and Advil. They also agree that
Ms. Bergman is entitled to mileage for attending at various treatments.
The amount of that mileage is not in evidence. If the parties are unable to
agree, they have liberty to apply and I will set that amount.

[101]    
The parties disagree as to whether a hot tub, massage therapy and Purica
Recovery Formula are properly compensable. I am not satisfied that the hot tub
is properly recoverable. I am, however, satisfied that Ms. Bergman is
entitled to recovery of the cost of the massage therapy she participated in (totalling
$1,003) but not the Purica Recovery Formula.

Summary

[102]    
To summarize, the plaintiff is entitled to damages in the following
amounts:

(a)       Non-pecuniary Damages – 75,000;

(b)       Cost of Future Care – $60,233;

(c)        Loss of Future Capacity – $65,000;

(d)       Loss of Housekeeping Capacity – $30,000;
and,

(e)       Special Damages –
$3,484.91 plus mileage as agreed upon by the parties.

[103]    
Unless there are matters about which I am unaware, the plaintiff is
entitled to her costs at Scale B. If either party wishes to address the issue
of costs because of matters about which I am unaware, they are at liberty to do
so.

“G.M.
Barrow, J.”

The
Honourable Mr. Justice Barrow