IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110628

Docket: 11361

Registry:
Duncan

Between:

Debra Lynn Burke

Plaintiff

And

Simone Alexis Artz
and Justin Trevor Eric Rivard

Defendants

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
In this personal injury damages assessment, the main issues are the
quantum of the plaintiff’s claims for non-pecuniary loss, loss of past and
future opportunity to earn income and cost of future care. The plaintiff’s
claims arise out of her complaints of psychological injury including
post-traumatic stress disorder, depression and anxiety together with chronic myofascial
pain and headaches, all of which she attributes to a motor vehicle accident.
The defendants have admitted liability for the accident, but contest the
plaintiff’s claims for compensation.

Credibility

[2]            
I found the plaintiff, her children, her friends and her co-worker to be
honest, forthright and reliable witnesses. I accept them as accurate historians
of the facts relating to this case.

[3]            
I accept the testimony of the plaintiff’s expert witness as well. I find
that the testimony of defence experts, a kinesiologist and a physiatrist, was
honestly given but deserving of little weight. That is because the defence
experts had last assessed the plaintiff in 2006 and 2007 respectively. Their
opinions were, therefore, dated. Neither defence expert could cast light on the
plaintiff’s current condition.

The Facts

Pre-Motor Vehicle Accident: History

[4]            
The plaintiff is a 47-year-old female. She was born in Winnipeg,
Manitoba and grew up in Calgary, Alberta and in Vernon, B.C. The plaintiff
completed Grade 10 and attended one month of Grade 11 classes. She quit school
to take employment. Her purpose was to earn enough money to afford to move out
of her parent’s home. From age 16 to age 29 the plaintiff worked in a wide
variety of jobs. Her employment during that time included retail sales, hotel
desk clerk, newspaper advertising sales, fashion model, restaurant wait staff,
bartender, editor of a monthly magazine, accounts receivable collector, hotel
sales coordinator, publisher’s assistant for a technology magazine, and owner and
operator of a coffee house and consignment clothes sales boutique. Over this
span of approximately 13 years, the longest the plaintiff held any one position
was two years. That was on the wait staff at a pizza restaurant in Calgary. The
plaintiff’s wages during those years were typically at or slightly above
minimum wage.

[5]            
The plaintiff married Louis Burke in April 1992. They lived in Vernon. Mr. Burke
worked on oil rigs in Alberta. He was often away from home. The couple’s first
child, Maxwell, was born in April 1993. In 1994 the family moved from Vernon to
Calgary. Their second child, Macy, was born in Calgary in January 1996.

[6]            
The plaintiff and Mr. Burke separated in 1998. The plaintiff did
not work outside the home since Maxwell’s birth.

[7]            
The plaintiff has a serious problem with alcohol. She started drinking
when she was 12 years old. Alcohol was a negative feature of her life. After
she and her husband separated in 1998, the plaintiff decided to stop drinking.
She checked into a detoxification center in Kamloops and after her discharge
she attended three months of Alcoholics Anonymous meetings. Then she attended a
42-day residential substance abuse program in Vancouver. That the plaintiff
required this level of intervention satisfies me that she has a very serious
problem with alcohol. That the plaintiff completed that intervention and has,
for the most part, maintained sobriety since then, satisfies me that she is
determined and has the resources to not allow her alcoholism to rule or ruin
her life.

[8]            
In 1999 the plaintiff began to work at a magazine based in Vernon. She
sold advertising and set up promotional displays. She earned on the order of $2,000
per month. That job ended in early 2000 when the plaintiff felt that a
co-worker had harassed her and, after complaining to management, the employer
took no remedial steps on her behalf.

[9]            
In 2000 the plaintiff and her husband reconciled. They moved into a
house that Mr. Burke bought in Vernon. The plaintiff tried to establish a
business making and selling specialty butter products. The business did not
have sufficient capital to continue and the plaintiff terminated the
enterprise.

[10]        
The plaintiff and her husband separated again in 2003. Mr. Burke
moved to Calgary; the plaintiff and the two children stayed in Vernon. Marital
and financial stress caused the plaintiff to experience depression and anxiety.
She complained of her emotional state to her family physician. He prescribed
anti-depressant medication for the depression and a tranquillizer for anxiety. The
plaintiff continued to suffer from depression and anxiety for the next several
years. Her condition was serious enough to cause her to tell her doctor about
it and to merit prescriptions for anti-depressant medications; it was not so
serious as to interfere with her ability to function in everyday life.

[11]        
Commencing in 2003 Mr. Burke provided financial support to the
plaintiff and the children. He contributed approximately $2,000 per month for
the plaintiff’s support. In 2004 the plaintiff began to provide in-home care to
an elderly couple. They paid her $50 per day for four hours’ work per day. She
provided in-home care for the couple five, and sometimes six, days per week.
The plaintiff did not report this income to Revenue Canada. The plaintiff
worked for this couple between February and November 2004. Sadly, the couple
passed away. The plaintiff would have earned on the order of $8,000 from this
employment.

[12]        
Between the end of 2004 and the motor vehicle accident in December 2005
the plaintiff did odd jobs of work for acquaintances. She did some
housekeeping, gardening, painting and in-home care, all on an ad hoc
basis. The plaintiff relied primarily on financial support from her estranged
husband to meet the family’s budget.

[13]        
In late 2005 the plaintiff came to the conclusion that of all the jobs
she had done in her life, the ones that gave her most pleasure involved caring
for other people. She decided to undertake a 10-month course of training at the
Okanagan College leading to a residential care aide certificate. The plaintiff
applied for a job at a privately operated home care facility for elderly women
in Vernon. The home was called Anjou House. The plaintiff was to work 20 hours
per week for a wage of $10 per hour. The plaintiff anticipated that she would
have to work fewer hours when her college course commenced. The plaintiff was
scheduled to start work at Anjou House on December 13, 2005.

[14]        
On December 12, 2005, the plaintiff was involved in the accident that
gave rise to this proceeding.

The Motor Vehicle Accident

[15]        
On December 12, 2005 the plaintiff was alone in her mid-size four-door
sedan. She was just completing a left-hand turn onto a highway near Vernon. The
road was frosty and slightly slippery. The defendant approached the plaintiff’s
car from the side. The right front of the defendants’ vehicle struck the left
rear quarter panel of the plaintiff’s vehicle. The collision caught the
plaintiff completely unawares. The impact caused the plaintiff’s car to rotate
through 180 degrees. The plaintiff was thoroughly jolted about in her car, and
as her car stopped its partial spin her forehead banged into something solid.
When the plaintiff looked out her windshield she saw some logging trucks
heading her way on the highway. The plaintiff became very afraid for her
safety. She went to open her driver’s side door. It was balky. She began to
panic. After a brief struggle with the door, the plaintiff got it to open and
she left her car.

Post-Motor Vehicle Accident: Injuries, Treatment and Recovery

[16]        
Immediately after the accident the plaintiff felt light-headed and
dazed. Her right buttock and foot were sore. She had a sore spot on her
forehead, just to the right of center. The plaintiff went to the hospital by
ambulance. She was examined briefly. By then the plaintiff was complaining of a
severe headache. She was given some medication for pain and released with
instructions to visit her family physician the next day. Her ex-husband drove
her home.

[17]        
As a consequence of the accident, the plaintiff has experienced four
significant areas of injury. They are: psychological upset consisting of
post-traumatic stress disorder, depression and anxiety; pain in her neck; pain
in the right side of her face, including her jaw; and headaches.

[18]        
The plaintiff has undertaken a reasonably intense course of
psychological treatment for her post-traumatic stress disorder. Those
treatments addressed her symptoms of aversion to driving, intrusive memories,
bad dreams and hyperarousal. The treatments have been generally successful. By
2010, the plaintiff’s post-traumatic stress disorder reached a point of
remission. She is able drive again, albeit with some nervousness. The
psychological treatments also addressed her depression and anxiety. Those
conditions have diminished as well, but the plaintiff continues to be troubled
by the impact that the motor vehicle accident has and will have on her life and
livelihood. The consensus of medical, psychiatric and psychological opinion
expressed at trial was to the effect that the plaintiff would benefit from
ongoing psychological treatments for some time. A schedule of approximately six
sessions per year for an extended period of time was the general recommendation.

[19]        
The plaintiff’s neck pain has plagued her since the accident. She
recently began to receive injections of botox in the muscles of her neck. The
botox paralyses the affected muscles and deadens the nerves that enervate them.
These injections afford the plaintiff considerable relief from what would
otherwise be constant neck pain. The relief lasts approximately two months, and
the injections can be repeated only every three months. Again, the consensus of
medical opinion adduced at trial was to the effect that if the botox injections
afford the plaintiff relief from her pain, then they should continue on an
indefinite basis.

[20]        
Shortly after the accident the plaintiff began to experience severe pain
in the right side of her face and around her right jaw. I accept the opinion of
the neurologist, Dr. Donat, that originally this pain was caused by
injuries to the soft tissues in and around the plaintiff’s right
temporomandibular joint and to the right side of her face. I also accept Dr. Donat’s
opinion that although the physiological injury has healed, the plaintiff’s pain
continues. The pain has persisted because, to put it colloquially, the pain
processors in the plaintiff’s brain have failed to keep abreast of the times.
That is to say, the plaintiff’s brain is still delivering the sensation of pain
to the plaintiff’s consciousness, even though the tissues that originally
caused the pain have repaired themselves. This is, according to Dr. Donat,
chronic myofascial pain and it explains the plaintiff’s complaints of
persistent and constant pain around the right side of her face. I accept that
diagnosis as an accurate explanation for the plaintiff’s continuing pain. The
pain is chronic. The pain does, however, respond to botox injections in the
area of the plaintiff’s face. The pain is diminished by those injections. The
diminishment occurs on roughly the same schedule as the pain in the plaintiff’s
neck.

[21]        
The plaintiff experienced a severe headache immediately after the
accident. She has gone on to develop two types of headache which continue to
affect her ability to function. One type of headache is a post-traumatic
migraine. Currently these headaches come on periodically and are unpredictable.
The plaintiff’s ability to function is severely limited when she is afflicted
by one of these headaches. She takes medications to ward off the symptoms, but
the medications are not wholly effective.

[22]        
The second type of headache that the plaintiff experiences is an
electric shock type of pain involving a linear path from around her right eye
down to below the right corner of her mouth. These headaches come on without
warning. The pain is extreme but not long lasting. When this type of headache
occurs the plaintiff is pretty much stopped in her tracks.

[23]        
The persistent nature of the plaintiff’s symptoms and the continuing
psychological upset have negatively affected the plaintiff’s ability to
concentrate, recall recent matters and to perform physical work. These factors
have left the plaintiff more easily fatigued. Her stamina for physical and
social activity is much diminished. Before the accident the plaintiff was,
despite her ongoing depression, nevertheless fully engaged in the lives of her
children and was an active participant in social activities with her friends.
Since the accident the plaintiff has withdrawn somewhat from her friends’
company. She no longer takes pleasure in cooking and baking. She is forgetful
at her work.

[24]        
One consequence among many of the plaintiff’s accident-caused physical
and psychological symptoms was an inability to start her job as a residential
care aide at Anjou House. The plaintiff’s post-traumatic stress disorder and
her anxiety over driving prevented her from operating a vehicle for
approximately two months after the accident. She was a very nervous and
hesitant driver after that. She would venture out only so far as her immediate
neighbourhood. As her counselling sessions with the psychologist Dr. Wakefield
progressed, her tolerance for driving increased and her post-traumatic stress
disorder related symptoms decreased. Her post-traumatic stress disorder reached
a point of remission approximately four years after the traffic accident.

[25]        
The plaintiff continues to be affected by depression and anxiety. Those
conditions are fuelled by worry over financial stress and concern for her
ability to provide for herself and her children. The plaintiff’s worries were
exacerbated in 2008 when the support her ex-husband paid went from $2,000 to
$1,500 per month, and again in 2010 when her support was further reduced to
$500 per month.

[26]        
The plaintiff did some very casual ad hoc employment between the
accident and July 2010. She worked for about a week in a restaurant operated by
an acquaintance. The plaintiff was too fatigued and lacked adequate
concentration to be reliable help in the restaurant kitchen, and she was let
go. The plaintiff did a few days of house cleaning and helped out with some of
her friends’ elderly relations. In July 2010 the plaintiff secured work at the
Vernon hospital. She works there still. The plaintiff works in the hospital’s
food preparation and delivery system. She still has problems with concentration
and short term memory. Her co-workers provide support for her and cover for her
or back her up when she misses some detail in her duties. Absent that
assistance, the plaintiff’s employment could be in jeopardy. The plaintiff’s
wage at the hospital is $16.78 per hour plus 12 percent in lieu of benefits,
making a total hourly wage of $18.79. The plaintiff’s ability to work is still
restricted by her accident-caused injuries. Her chronic pain and fatigue have
limited her to working no more than two shifts in a row. Between July and the
end of December 2010, the plaintiff earned gross wages of $8,103 ($6,810 net of
deductions) and has worked approximately half of the shifts that were offered
to her.

[27]        
The plaintiff’s physical limitations and psychological condition have
persisted over a period of five and a half years since the accident. I accept
the opinions of the plaintiff’s medical doctors that her situation is
permanent.

The Parties’ Positions

The Plaintiff

[28]        
The plaintiff argues that the decrease in her function caused by her
injuries is permanent. She seeks non-pecuniary damages of $90,000 to $115,000.
She claims past income loss on the theory that but for the accident in 2007 she
would have worked at least part-time at $10 per hour, then attended college for
10 months to obtain her certificate as a residential care aide, and then she
would have worked full-time at a wage of at least $10 per hour through to the
trial. The plaintiff maintains that her past loss of income should be assessed
at $70,000 net of income taxes. The plaintiff also claims compensation for
reduction of her earning capacity. She quantifies that claim by pointing to the
evidence of her economist, who said that the present value of full-time wages
of $18 per hour to her age 70 is $232,000. She says that she can now work only
part-time, and so, after taking into account the appropriate contingencies, her
loss of income in the future should be fixed at $130,000. Finally, the
plaintiff claims special damages for (primarily) psychological treatment
totalling $11,224, and cost of future care for ongoing psychological treatment,
medications for headache, pain, depression and anxiety, and for botox
injections.

The Defendants

[29]        
The defendants argue that the court should draw an adverse inference
from the plaintiff’s failure to adduce evidence from her family physician. They
also argue that the plaintiff suffered from an active depression and was
plagued by anxiety before the traffic accident. They say that they should not
be required to fund treatment for those conditions after the accident, nor
should they be required to compensate the plaintiff in damages for functional
limitations caused by those psychological conditions. The defendants maintain
that the plaintiff has now returned to work and is working at a capacity and
income level commensurate with, if not better than, her situation before the
accident. They say that no significant damages can therefore be awarded to the
plaintiff for ongoing complaints. For non-pecuniary damages, the defendants say
the plaintiff should receive $60,000.

Discussion

Non-Pecuniary Loss

[30]        
As noted above, I accept the plaintiff’s testimony, and the testimony of
her children, her friends and her co-worker. They all describe a person who is
now forgetful, distracted, often fatigued, somewhat socially reclusive and
unsure of herself. These were not typical characteristics of the plaintiff
before the traffic accident. Before the accident, the plaintiff was socially
engaged and energetic. She cooked and baked with enthusiasm.

[31]        
I also accept the opinions of the plaintiff’s medical treaters. I am not
worried about the lack of evidence from the plaintiff’s family physician. It
was he who referred the plaintiff to specialists, and it was those specialists
who diagnosed and treated the plaintiff’s accident-caused symptoms. The family
physician’s evidence would, in my view, likely have consisted of little more
than confirmation that the specialists were engaged and progress was made under
their care. As such, I am confident that the family physician’s evidence would
have added little new into the mix.

[32]        
Turning to the plaintiff’s injuries, the overall weight of the evidence
paints a clear picture: before the traffic accident the plaintiff had some
depression and she was sometimes anxious. The breakdown of her marriage and the
emotional upheaval and fiscal uncertainty that flowed from that breakdown
fuelled her depression and anxiety. Both conditions were sufficiently active as
to prompt her to obtain medical attention. The plaintiff’s depression and
anxiety were, therefore, present and active maladies before the accident. The
plaintiff did not, however, suffer from post-traumatic stress disorder or from
pain in her neck, jaw and face, and the plaintiff did not suffer from migraine
or neuralgic headaches. The plaintiff was not fatigued and her ability to
function in everyday life was not limited in any significant way. After the
accident the plaintiff does now, and will in the future continue to, suffer
from myofascial pain in her face and jaw. She does, and will continue to,
suffer from periodic migraine and neuralgic headaches. Her neck will be sore
after physical activity. She will be fatigued and socially withdrawn. These
changes in her life have deepened her depression and made her more susceptible
to anxiety.

[33]        
Where a plaintiff suffered from a malady before sustaining a compensable
injury, or where the evidence shows that there is a measurable risk that a
plaintiff’s pre-existing condition will become symptomatic, the court must
decrease the defendant’s liability for damages to account for the pre-existing
condition: Athey v. Leonati, [1996] 3 S.C.R. 458. In this case,
the plaintiff’s depression and anxiety were active shortly before the accident.
I find it likely that, even if the accident had not happened, the plaintiff would
have continued to suffer from a degree of depression and anxiety for some years
to come. I find that because those conditions were not disabling before the
accident, there was no measurable risk that they would have disabled the
plaintiff absent the accident. They would, however, have required medication
and the plaintiff would have benefited from some psychological counselling for
depression and anxiety.

[34]        
That said, the plaintiff’s pain, headaches and post-traumatic stress
disorder were not features of her life before the accident and there was no
measurable risk that, absent the accident, they would have become features of
her life. Likewise, the plaintiff’s difficulties with memory and concentration
were not a problem before the accident. Although the plaintiff argued that
these latter problems stemmed from a minor traumatic brain injury, I find that
that they are, in fact, a product of the effect on her mentation of pain,
depression and anxiety.

[35]        
On an overall assessment of the whole body of the evidence at trial, I
am satisfied that the plaintiff’s claim for non-pecuniary damages should be
reduced by a relatively modest amount in order to accurately reflect her
pre-existing emotional condition. I fix that reduction at 10 percent of the
total.

[36]        
I find that were it not for her pre-existing condition, I would have
fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after
subtracting the pre-existing condition, the plaintiff is entitled to judgment
for general damages of $81,000.

Past Loss of Opportunity to Earn Income

[37]        
The plaintiff’s claim for past income loss is based on the premise that
but for the accident she would have worked full-time from 2008 to trial. The
flaw in that premise is that no admissible evidence supported the proposition that
full-time work would have been available to the plaintiff. The plaintiff said
various things in her testimony about how much residential care aide work was
available and at what rates of pay, but all of that was pure hearsay, and
unattributed hearsay at that.

[38]        
The only evidence at trial relating to the plaintiff’s post-accident
prospects for work consisted of the part-time job she was to start at Anjou
House the day after the accident, and the plaintiff’s current part-time
position at the Vernon Hospital. The former would have paid $10 per hour for 20
hours per week. The latter pays $18.79 for approximately the same number of
hours. The evidence also established that the plaintiff intended to spend 10
months of 2007 attending college.

[39]        
The plaintiff was, no doubt, well motivated to work. The two decreases
of her child and spousal support that she experienced in 2008 and 2010 would
have added to that motivation. That said, the only evidence concerning the
plaintiff’s post-accident employment concerned part-time work.

[40]        
Given these data, I find that the best way to assess the plaintiff’s
loss of income to trial is assume that the plaintiff would have:

1)       worked part-time at
Anjou House from mid-December 2006 to the end of that year. That would be two
weeks at 20 hours per week times $10 per hour, for a total of $400;

2)       worked two months in
2007. That would have been 2 months at 83 hours per month times $10 per hours,
for a total of $1,660;

3)       attended college for
10 months in 2007;

4)       in 2008 begun part-time
employment at an hourly rate that would have reflected the residential care
aide certificate she would likely have obtained at college. Doing the best that
I can with the available evidence, I find that from 2008 through to July 2010
the plaintiff would have worked part-time at a rate of $12 per hour (I have
arrived at that figure because it roughly accords with the pay that the
plaintiff received from the elderly couple she cared for before the accident).
That would be 2.5 years at 1,000 hours per year times $12 per hour for a total
of $30,000;

5)       taken the job she
currently has at the hospital in July 2010 because it offers a higher rate of
pay than she would have otherwise earned. Absent the accident though, the
plaintiff would have worked approximately twice as many hours as she in fact
worked. The plaintiff injured her shoulder at work in 2011, and as of the trial
she had not yet returned to work. That at-work injury has interrupted the
plaintiff’s claim for past income loss. In 2010 the plaintiff earned $8,100
at the Vernon Hospital. Absent the accident she would have earned another
approximately $8,000.

[41]        
The plaintiff’s total claim for past loss of opportunity to earn income
is, therefore, $40,000 (rounded) before taxes. The plaintiff is entitled to
judgment for that sum less taxes and less the $6,975.02 she received by way of
temporary total disability benefits. In the event that the parties are unable
to agree upon the amount to be deducted for taxes, they may apply to the court
for further directions.

Reduction of Earning Capacity

[42]        
Given my findings that the plaintiff’s myofascial pain, her headaches,
and her neck pain are permanent, and given that the plaintiff’s opportunity to
work in the health care have been negatively affected by those injuries, it
follows that the plaintiff’s ability to take advantage of all employment
opportunities that would otherwise be open to her has been diminished. The
plaintiff is entitled to compensation for that reduction of her earning
capacity.

[43]        
This award is not amenable to calculation according to one formula or
another. The plaintiff is still able to work; her loss lies in a restriction of
her ability to fully participate in her work. I find that the plaintiff’s
reduction of earning capacity merits an award of $60,000.

Special Damages

[44]        
The plaintiff’s claim for special damages is comprised of $8,840 for
psychological treatments, $333 for dental expenses, $72 for travel, $393 for
mileage and $1,585 for medications. I find that all these expenses, with the
exception of the psychological treatments, are fully recoverable by the
plaintiff.

[45]        
The difficulty with the plaintiff’s claim for 100 percent of the
psychological counselling she received is that she suffered from depression and
anxiety before the accident and, as earlier noted, those conditions were active
in the period immediately preceding the accident. Some portion of the
psychologist’s treatment was aimed at resolving those pre-existing and active
conditions. The plaintiff’s claim for psychological treatments must, therefore,
be reduced by some degree to account for that fact. Somewhat arbitrarily, I fix
that reduction at 20 percent. The plaintiff is entitled to judgment for the
cost of psychological treatments to up to the trial in the sum of $7,072,
together with the $2,383 for the balance of the items claimed under this head
of loss.

Cost of Future Care

[46]        
The plaintiff seeks judgment for the present capital value for annual
future care costs comprising: medications at $1,181 for 15 years; botox at
$1,600 for 20 years; acupuncture at $780 and massage at $780 for 3 years; and
counselling at $780 for 10 years.

[47]        
The medical evidence clearly supported the plaintiff’s need for
medications for her migraine and neuralgic headaches and the botox injections.
The plaintiff is entitled to those costs for the shorter of the periods
claimed, that is 15 years. The medical evidence also endorsed the plaintiff’s
need for counselling sessions. However, the plaintiff’s post-traumatic stress
disorder is in remission and her employment situation has stabilized. She will
also have the benefit of the fruits of this litigation. This judgment will, to
the extent possible under civil law, put the plaintiff back in the position
that she was in before the traffic accident. If that is so and if, as the
evidence indicates, her post-traumatic stress disorder requires no further
treatment, then any need for ongoing counselling could only arise from
depression and anxiety that existed prior to the accident. It follows that no
award can be made for the future cost of counselling or for anti-depressants or
anxiety medications. The annual cost of the latter medications is, according to
the plaintiff’s chart of future loss claims, $445.68.

[48]        
There was no medical evidence to support the notion that the plaintiff
would benefit from massage or acupuncture, and no award can be made for those
items.

[49]        
The plaintiff shall have judgment for the present value of 15 years of
expenses for medications totalling $735.32 per year and botox injections
totalling $1,600 per year. According to the tables tendered by the plaintiff’s
economist, that present value is $26,860.

Conclusion

[50]        
The plaintiff will have judgment under the following heads of damage:

[51]        
The plaintiff is also entitled to court order interest on those items of
loss on which interest accrues. Subject to any applications the parties may
wish to make concerning costs, the plaintiff is entitled to her costs on Scale
B. Any such application regarding costs must be filed within thirty days of the
release of these reasons.

“P.J.
Rogers J.”
The Honourable Mr. Justice Rogers