IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110705

Docket: M090319

Registry:
Vancouver

Between:

Twyla Dawn
Sevinski

Plaintiff

And

Elizabeth Anne
Vance, Robert Hornby Vance, Clark Mervin Bulloch, Applied Industrial
Technologies Ltd. and PHH Vehicle Management Services Inc.

Defendants

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]          
The plaintiff, Ms. Sevinski, was a passenger in a motor vehicle
driven by the defendant, Ms. Vance, when she was involved in a motor
vehicle accident. The accident took place on November 27, 2007 (the “Accident”).
Liability for the Accident has been admitted. Ms. Sevinski maintains that
she continues to suffer from various forms of functional impairment as a result
of the Accident and that she now struggles with chronic pain syndrome.

[2]          
The central issues in this case are: a) whether or to what extent Ms. Sevinski
suffers from the difficulties she claims, b) if so, what damages are
appropriate to compensate her for her loss, and c) whether Ms. Sevinski
has properly mitigated her losses.

[3]          
The Accident was serious. The vehicle that Ms. Sevinski was a
passenger in was struck on the right front passenger side where Ms. Sevinski
was seated. The relevant photographs and the evidence of Ms. Sevinski
establish that there was considerable damage to that vehicle. Ambulances were
summoned to the scene. The “Jaws of Life”, a device capable of cutting through
metal, had to be used to extract Ms. Sevinski from her vehicle. She was
originally transported to a hospital in Fernie. As a result of a concern over
possible internal bleeding, Ms. Sevinski was then further transported by
ambulance to Cranbrook. Ms. Sevinski was aware of pain in her back, neck,
hip and right elbow. She had some facial bruising and says she had pain on much
of her right side.

[4]          
Having said this, Ms. Sevinski was discharged from the hospital
later that day. She stayed with her friend Ms. Vance for a few days, then
with her uncle and still later with another friend. Within three to four weeks
she was working at the Stafford Inn in Fernie.

Ms. Sevinski’s
Background and History

[5]          
The plaintiff is a 29-year-old woman who has lived a troubled and
turbulent life. This fact is central to many of the issues before me. It is
relevant to the diagnosis that she has chronic pain syndrome. It explains, in
part, the absence of any third party evidence which would support the plaintiff’s
evidence, for the four or five year period before the Accident to the nine
month period which followed it. It significantly informs both the plaintiff’s
claim for non-pecuniary loss and for future income loss. Finally, it
underlies the significant failure of the plaintiff to mitigate her losses
following the Accident.

[6]          
In her opening submissions, counsel for the plaintiff asserted that Ms. Sevinski
had come from a troubled home. There was very little direct evidence of this.
During the trial reference was made to the report of Dr. Côté Beck, a psychiatrist,
who was not called to give evidence, Ms. Sevinski said, however, that most
of the facts in his report were accurate though she disagreed with the
diagnosis that she had been depressed for much of the past decade. The report
indicates that the plaintiff’s father drank heavily at one time, but has been
sober for the past decade. Ms. Sevinski’s parents divorced when she was
15. She began to move in and out of the family home when she was 14. She said
she finished one-half of Grade 10. Her transcripts suggest she left school in
Grade 11.

[7]          
When she was 18 she met Mr. Desjardin, who was working as a
building contractor. She lived with him for the next six or seven years.
Between 2000 and 2003, she worked intermittently in the construction industry
and apparently enjoyed this work. In December 2003, the couple had a son, Drayten.
Thereafter the plaintiff, at Mr. Desjardin’s request, stayed home and no
longer worked.

[8]          
Between 2003 and 2007, she drank heavily and developed a drug addiction.
She was introduced to cocaine by Mr. Desjardin. Her addiction is described
in the report of Dr. Côté Beck as a “five-year crack addiction”. Ms. Sevinski
said that during this period she would go on “binges”. Ms. Sevinski also
testified that Mr. Desjardin was physically abusive to her and that when
she left him in February 2007, she initially stayed at a safe house. Apparently
it was Mr. Desjardin who initially had custody of Drayten. This prompted Ms. Sevinski
to address her addiction difficulties and in December 2007, she and Mr. Desjardin
were granted joint custody of Drayten. The Accident, as I have said, occurred in
November 2007.

[9]          
In 2008, Ms. Sevinski again faltered and began to drink and use
drugs heavily. In July 2008, the plaintiff met and began spending time with her
present common law spouse, Mr. Rambold. The couple began to live together
in November 2009 and had a daughter, Tegan, who is presently 15-months-old. Ms. Sevinski
testified that she last used cocaine in August 2008 after having had to go to
the hospital for a drug related event. She further said that she was sober
throughout the time that she was pregnant with Tegan. Nevertheless, she again
began to drink after Tegan’s birth and in November 2010, she enrolled in a 60
day rehabilitation program in Maple Ridge. She also attends weekly addiction
counselling and has done so since May 2009. Still further, she has recently enrolled
in school in order to complete her high school education. Both she and Mr. Rambold,
who gave evidence, said that her relationship with Mr. Rambold provides
her with a positive and stable influence.

[10]       
Apart from the foregoing difficulties, Ms. Sevinski has also
struggled with depression. Though she disagreed with Dr. Côte Beck’s
diagnosis that she has suffered from chronic depression over the last decade,
she accepts that she has struggled with depression at different times. She has
taken medication for her depression in the past, although she stopped doing so
in February 2011. She has had some difficulty with anxiety. She has at times
struggled with her sleep habits. In 2009, she put on 40 pounds which, she said,
affected her self-image.

[11]       
Ms. Sevinski has also been involved in two earlier motor vehicle
accidents. The first such accident was in August 2001. At that time she
sustained injuries to her back, neck and shoulders as well as ensuing numbness in
her hands and feet. In February 2002, she continued to complain of “constant
pain total spine 8/10” as well as poor sleep. Eighteen months after this first
accident she continued to complain of pain.

[12]       
Ms. Sevinski was also in a further motor vehicle accident on
October 24, 2007 — a mere month before the Accident. As a result of this
accident, the relevant clinical note indicates that she initially complained of
“lots of neck pain/headaches/occasional nausea/muscle soreness in thoracic and
lower back … pain/knees aching”. Ms. Sevinski went to a series of chiropractic
treatments and said that prior to the time of the Accident she felt “much
better”.

The Plaintiff’s Injuries;
Difficulties with the Evidence and Credibility

[13]       
The plaintiff asserts that as a result of the Accident she suffered from
and continues to suffer from back, neck, hip and knee pain. She also says that
her feet throb and burn. This symptom apparently developed some weeks after the
Accident. She says that her back pain is far worse than it was after the earlier
accidents and that it is is aggravated by virtually everything. This includes walking,
sitting, exercising, lying down and all sorts of activities. She says her back pain
is virtually constant.

[14]       
Her hips hurt when she sits. Her hips will also hurt when she tries to
stand and she has trouble straightening up. She has, as a result of these
difficulties, fallen over on occasion. Nothing other than Tylenol 3 alleviates
her pain.

[15]       
Her knees feel as though they are grinding. Her pain is again aggravated
by exercise, by walking and even by sitting. She finds it hard to hold her neck
up. Her neck pain is also aggravated by many different types of activity and is
virtually constant.

[16]       
Ms. Sevinski says the pain associated with each of these symptoms
has been consistent since the Accident and that there have been no periods of
time where she has felt better. She advised Dr. Finlayson, the expert
called on behalf of the plaintiff that she has consistently struggled with pain
which she rated as an eight or nine out of 10 with a rating of 10 being the worst
pain imaginable. These various difficulties, both in the past and presently, interfere
with most facets of her life. She is unable to play with her children. She
struggles to lift her daughter. She cannot do housework properly. Mr. Rambold
is a person who enjoys the outdoors and physical activity. He likes to hike,
fish, dirt bike and ski-doo. She has tried, but is unable to join him in these
activities. Her physical intimacy with Mr. Rambold is challenged as is her
daily interaction with him.

[17]       
The defendants say that the plaintiff is a poor historian, that she is
not credible and that her evidence should not be accepted.

[18]       
There is a proper basis for some of these submissions. The difficulties
with the plaintiff’s evidence fall into at least three categories. First, the
plaintiff is a poor historian. Second, she has unreasonably ascribed many of
her current problems to the Accident. Finally, there are several instances
where she simply has not been forthright.

[19]       
There is no question that the plaintiff has a very poor memory of many
things. Each of Dr. Finlayson and Dr. McDougall, the expert called by
the defendants, made this observation in their respective reports. This
difficulty was manifested repeatedly in the plaintiff’s evidence. Apparently Ms. Sevinski
had various short term serving positions or other jobs in the summer of 2008. She
had no memory of what these jobs had been. Ms. Sevinski, when asked if she
had knee pain prior to the Accident, said she could not recall. The medical
records indicate that she had had such pain. The plaintiff advised Dr. Finlayson
that she had not had any long-term problems with her previous accidents. It is
clear, at least as it pertains to her 2001 motor vehicle accident, that she
continued to have some pain for least two years after that accident. The
plaintiff similarly advised Dr. Finlayson that she had not suffered from
depression prior to the Accident. Both the report of Dr. Côté Beck and
other clinical records referred to by Dr. Finlayson in her report
established that this is not correct.

[20]       
This last matter leads to the second concern I alluded to earlier. Ms. Sevinski,
who, as I have said, struggled with multiple issues for an extended period of
time, often inaccurately attributed aspects of her present condition to the
Accident. There are several examples of this. Ms. Sevinski told Dr. Finlayson
and the Court that her social life was diminished or affected by the Accident.
First, there was limited evidence before me of what level or nature of social
interaction she had enjoyed prior to the Accident. If anything, she said that during
her relationship with Mr. Desjardin she was often alone. Second, though
this was not developed before me, Dr. Finlayson’s report identifies an
earlier clinical note from October 3, 2003, which notes “sociopathic/antisocial
behaviours”.

[21]       
Ms. Sevinski had also told Dr. McDougall and gave evidence
before me that she gained a significant amount of weight which had, in turn,
affected her self-image. This weight gain prevents her, she said, from doing
the things she used to do. The report of Dr. McDougall indicates, however,
that the bulk of that weight gain took place after the birth of her daughter or
more than two years after the Accident. The report of Dr. Côté Beck indicates
that the plaintiff told him she was uncertain why she was gaining weight.

[22]       
Finally, the plaintiff was not forthright in her evidence. This goes
well beyond having a poor memory. Some of these examples were of lesser
importance. Thus, for example, she told me in her direct evidence that she had
not used marijuana since 2008 when she became pregnant. During her cross-examination,
when she was taken to a clinical record dated October, 2009 where she had
acknowledged marijuana use, she responded that such use was not “regular”.

[23]       
There are three other examples, however, which are more significant.
Following the Accident Ms. Sevinski was employed at several different jobs
for brief periods of time. She was, for example, employed at the Stafford Inn
where she was a waitress and was required to do cleaning, at an A & W
outlet in Fernie where she worked both as a cashier and as a cook, at a golf
course and at an H & R Block office. Ms. Sevinski was fired after
relatively brief periods from each of these jobs. She emphasized that she had
very significant levels of constant pain when she was working. She also did not
accept, in cross-examination, the extent to which her poor performance, her
interactions with others, her tardiness and her drinking contributed to her
inability to hold a job.

[24]       
The defendants called Ms. Joan Martins, who had been the plaintiff’s
supervisor at the Stafford Inn. Ms. Martin’s confirmed that the plaintiff
was fired because she was unreliable. There were days when she was late for
work and other mornings when she simply did not show up. Ms. Martins was
unaware of any drug use on the part of Ms. Sevinski, but had smelled
alcohol on her. Ms. Martins further confirmed that though she worked quite
closely with the plaintiff, she was unaware that the plaintiff was injured and
that Ms. Sevinski did not manifest any overt signs of pain.

[25]       
Mr. William Brown, a part owner of the A & W outlet which had
employed the plaintiff, also gave evidence. He said that though the plaintiff
performed well initially, she had difficulties with both customers and other
staff. Her attitude was poor. There were concerns about her coming to work hung
over. On one occasion, when she came to work drunk, she was sent home. She was
provided an alternative opportunity and was moved to work in the kitchen.
Though she began well, she was soon taking shortcuts and deviating from
procedures relevant to food safety and hygiene. She was then fired. Mr. Brown,
who saw the plaintiff for at least a few hours daily, also confirmed that he
was unaware that the plaintiff suffered from any physical difficulty or
dysfunction.

[26]       
Ms. Sevinski accepted that when, within the first week or two that
she was employed by H & R Block, she called in to report that she would be
late for work, she was told not to bother coming back.

[27]       
I accept the evidence of each of Ms. Thomas and Mr. Brown. It
is important evidence. It is relevant to both the reliability of the plaintiff’s
evidence and helps place the severity of the plaintiff’s symptoms, shortly
after the Accident, into context.

[28]       
Next, Ms. Sevinski has had a family doctor, Dr. Forrest, for a
number of years. Dr. Forrest was not called at trial. Her clinical notes
for the relevant periods of time were, however, made available. Those clinical
notes make virtually no reference to the plaintiff’s injuries or to the
difficulties she claims she has struggled with in the years since the Accident
to the present time. There is similarly no record, for several years after the
Accident, of the plaintiff seeking any physiotherapy, massage therapy or other
assistance for her injuries.

[29]       
In her direct evidence, Ms. Sevinski was adamant that she raised
the problems and symptoms associated with the Accident “every time” she saw Dr. Forrest,
but that Dr. Forrest failed to take any notes of these concerns. Indeed, Ms. Sevinski
said that at one point she expressly raised this failure with Dr. Forrest.

[30]       
In her cross-examination, however, as she was taken to and through her
numerous attendances before Dr. Forrest and others, her evidence changed.
After first reconfirming that she consistently complained of her injuries to Dr. Forrest,
the plaintiff then accepted that she was uncertain whether she had raised the
issues associated with her injuries at numerous of these attendances. Still
later, she said that she had not raised her concerns because she did not want
to complain and that there was no purpose in her doing so.

[31]       
I do not accept that Ms. Sevinski consistently raised or sought to
address the difficulties associated with the Accident with Dr. Forrest.
This is so for several reasons. First, Dr. Forrest was her family doctor. Dr. Forrest
assisted the plaintiff with her addiction issues, her pregnancy and multiple
other problems. It was Dr. Forrest who provided the referral to Dr. Côté
Beck. Her notes are filled with multiple references to problems of varying
severity. On one occasion, in January 2009, some two months after Ms. Sevinski
fell on some ice and hurt her elbow, she came to see Dr. Forrest. There is
a note of this concern. If Ms. Sevinski had communicated the dramatic,
debilitating and ongoing difficulties that she now asserts have existed
throughout, I have no doubt that these problems would have been noted and, more
importantly, would have been addressed or treated in some way. It is
implausible that if Ms. Sevinski complained, as she says, on a consistent
basis over some years in relation to the same acute difficulty, that those
complaints would have been ignored.

[32]       
There is a further example of like nature. Ms. Sevinski undertook
no rehabilitative physiotherapy or other treatment for at least two years
following the Accident. She first obtained some massage therapy in or about
November 2009. She thereafter attended a very few physiotherapy treatments.
This is in marked contrast to her having obtained physiotherapy following her
first accident in 2002 and the chiropractic treatments she immediately obtained
after her second accident in October 2007.

[33]       
Ms. Sevinski said she was unable to seek or obtain any treatment
after the Accident because she could not afford to do so. Later, after Tegan
was born, she said she was unable to go to physiotherapy because she could not
take her daughter with her and because she could not arrange for child care. I
do not accept either of these assertions.

[34]       
Though the precise nature of the plaintiff’s relationship with her
parents is unclear, she has, in the last several years, stayed with them at
different times. She also has an uncle she has stayed with. She has been seeing
Mr. Rambold since July 2008. He works full-time. He owns various outdoor
recreational toys. It is again implausible that if the plaintiff suffered to
the degree and in the manner which she describes, none of these people would
step forward to assist her financially. This conclusion is reinforced by the
relatively short course of physiotherapy that was recommended in the reports of
Dr. Finlayson and Dr. McDougall and the relatively modest costs
associated with such treatment.

[35]       
The assertion that a lack of access to child care interfered with her
ability to seek physiotherapy is similarly unbelievable. When Ms. Sevinski
was first injured in November 2007, she did not have custody of her son.
Thereafter, for a further period of time, she had joint custody of her son.
There were thus times when child care concerns would not have interfered with
the plaintiff seeking or obtaining physiotherapy. When she was pregnant with Tegan,
she was able to have her mother assist her. When she attended at an alcohol-treatment
centre for a full 60 days, she was able to arrange for people to care for both
her children. Now that she is enrolled in school, it appears that Mr. Rambold’s
mother assists with the children so that she can study. Thus, once again, if
the issue of treatment was pressing and as important as she says, it is hard to
imagine that some arrangement for temporary child care could not have been
made, on the few occasions where this would have been necessary.

[36]       
There also appear to have been instances where the plaintiff was not
forthright with the independent experts she attended before. Three such
examples will suffice. The plaintiff told Dr. Finlayson she had been able
to go back to work as a carpenter after her earlier motor vehicle accidents and
had never had any long-term problems related to pain from these accidents. The
clinical records that Dr. Finlayson was directed to during her
cross-examination establish that the plaintiff had significant pain for an
extended period of time after her 2001 accident.

[37]       
Next, the plaintiff told Dr. Finlayson that she was fired from
several jobs after the Accident “because of her pain with prolonged standing”.
As I have said, the plaintiff was fired from these jobs for very different
reasons.

[38]       
The plaintiff also told Dr. McDougall, when she attended before him
in August 2010, that she used alcohol socially. Based on her evidence before me,
she drank heavily in 2010, causing her to check into a rehabilitation program
in the latter part of that year.

[39]       
The only third-party evidence which addressed the plaintiff’s condition
post-Accident came from Mr. Rambold. Though Mr. Rambold had known the
plaintiff in high school, he did not begin to interact with her socially until
July 2008. Mr. Rambold, who briefly addressed the plaintiff’s troubled
past, gave virtually no evidence about her activities prior to the Accident. He
gave evidence about her condition and the difficulties she struggled with after
he began dating her. That evidence largely supported the evidence of the
plaintiff. He confirmed that she struggled with consistent pain and discomfort.
He confirmed that that pain and discomfort was often severe. He further
confirmed that it interfered with the plaintiff’s ability to engage in multiple
recreational activities, to care for and play with her children, to take care
of their home and that it impacted their personal relationship in various ways.

[40]       
Mr. Rambold’s evidence reflected a propensity to downplay certain
difficulties with the plaintiff’s past lifestyle. That propensity detracted
from the reliability of his evidence. When asked about the plaintiff’s drinking
when they met he said she would have one or two beers a week. This is
inconsistent both with the clinical records and with the plaintiff’s own
evidence. Indeed, records from November 2008 indicate the plaintiff was
drinking daily, a fact which she acknowledged. His evidence is also
inconsistent with the need for the plaintiff to attend a rehabilitation program
in November 2010. That need, Ms. Sevinski acknowledged, arose because her
life was becoming “unmanageable”. Similarly, when asked if she used marijuana,
he asserted he was unaware of this. The plaintiff’s evidence, as well as
clinical records from October 2009, a time when the plaintiff already lived
with Mr. Rambold, indicated that she did use marijuana at this time. It is
hard to imagine that Mr. Rambold would be unaware of this drug use.

[41]       
The defendants have argued, as I have said, that as a result of these
and other difficulties with the plaintiff’s evidence, the Court should not
accept her testimony. The defendants further argue that because the assessment
of pain is subjective, an assertion accepted by each Dr. Finlayson and Dr. McDougall,
the difficulties with the plaintiff’s evidence also infuses and undermines the
medical evidence before me.

[42]       
I am quite troubled by the plaintiff’s evidence. Aspects of that
evidence go well beyond a frailty of memory or a natural and excusable tendency
to exaggerate or place given evidence in a positive light. Here the plaintiff
sought to mislead and to create a history that is not forthright. Having
concluded that significant aspects of the plaintiff’s case, which are directly
relevant to both the severity of her injuries and to her efforts to mitigate,
are not reliable, where does the truth lie? This dilemma or difficulty was
addressed by Southin J., as she then was, in Le v. Milburn, [1987]
B.C.J. No. 2690:

When a litigant practices to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration. If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame. …

[43]       
The difficulties with the plaintiff’s evidence are magnified because of the
lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he
then was, identified the difficulties associated with assessing the extent of
an injury without the benefit of objective evidence in each of Butler v.
Blaylok Estate [1981] B.C.J. No. 31 (S.C.) at paras. 18-19 and Price
v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.

[44]       
In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A.,
at para. 15.1, said:

…there must be evidence of a “convincing”
nature to overcome the improbability that pain will continue, in the absence of
objective symptoms, well beyond the normal recovery period, but the plaintiff’s
own evidence, if consistent with the surrounding circumstances, may
nevertheless suffice for the purpose.

[45]       
More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66,
Barrow J. accepted that claims supported by only subjective evidence
should be viewed with a “skeptical eye”. He further confirmed, however, that
such claims can be supported by the “convincing force of collateral evidence”.

[46]       
Two propositions emerge from these cases. First, there is an inherent
level of frailty in the case of a plaintiff whose assertions of injury are not
supported by any objective evidence or symptoms. Accordingly, it is
appropriate, in such cases, to treat the evidence adduced by or on behalf of
the plaintiff with caution. Second, either the evidence of the plaintiff or
collateral corroborative evidence may be sufficient to persuade the Court of
the plaintiff’s position.

[47]       
In this case the usual difficulties associated with the wholly
subjective complaints of a plaintiff are compounded by the reliability problems
which are associated with the evidence of Ms. Sevinski.

[48]       
Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s
evidence and am satisfied that these portions of her evidence are supported by
additional collateral evidence before me.

[49]       
During the course of argument I asked counsel for the defendants if it
was the defendants’ position that the plaintiff’s evidence of her ongoing
physical difficulties was, in its entirety, a fiction or fabrication. He
conceded that the defendants’ position did not go that far.

[50]       
I do not accept that the plaintiff suffers from the degree of
unrelenting pain and disability that she describes. This description is not
consistent with her ability to work in multiple jobs shortly after the Accident.
It is similarly inconsistent with the fact that she was able to perform in
those positions and the people who worked closely with her remained unaware of
her professed difficulties. Finally, her description of her pain is
inconsistent with her ongoing failure to discuss her difficulties with her
family doctor as well as with her failure to seek any therapeutic assistance or
physical treatment for an extended period after the Accident.

[51]       
On the other hand, I do find that the Accident has caused the plaintiff
some physical difficulty of an ongoing or enduring nature.

[52]       
Thus, I am satisfied that, but for the Accident the plaintiff would not
suffer from the pain that she presently does: Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-14. The defendants, in arguing that the plaintiff
has failed to establish causation have, to some extent, conflated the question
of credibility with causation. They confuse the question of whether the
plaintiff’s evidence should be accepted with the question of whether that
evidence, or part of it, once accepted, establishes that the plaintiff was
injured by the negligence of the defendants.

[53]       
The conclusion that the plaintiff suffers from some level of ongoing
pain is consistent with the opinions of each of Dr. McDougall and Dr. Finlayson.
While both accepted that their opinions were based on what they were told by
the plaintiff, both have available to them skills and means, based on their
evaluations, of discerning when they are being misled. Dr. Finlayson, in
particular, testified that the plaintiff’s Waddell signs were all negative. It
is also consistent with the objective record of the plaintiff’s periodic
complaints of pain which she attributed to the Accident as well as to the fact
that she has sought some assistance or relief through massage therapy and, to a
lesser extent, physiotherapy. Finally, it is consistent with the evidence of Mr. Rambold.

[54]       
I further find and accept that the plaintiff’s pain does impact, to some
degree, on her daily life, on her ability to maintain her home, to care and
play with her children and to join Mr. Rambold in various recreational
activities. I do not accept that these consequences are as intense, wide-ranging
or debilitating as the plaintiff asserts.

The Diagnosis of Chronic
Pain

[55]       
There is a significant consistency in the opinions of Drs. Finlayson
and McDougall. Both accept that the physical or objective symptoms of the plaintiff’s
injuries from the Accident have resolved. Neither suggests that the injuries
the plaintiff suffered in the Accident are likely to give rise to or result in
any future degenerative diseases. Importantly, both accept that certain
psychosocial issues in the makeup of an individual can delay recovery from an
injury. Specifically, Dr. Finlayson said:

She has had widespread pain that has now been present for at
least three years. Pain is considered chronic when it lasts beyond three to six
months. Her pain is associated with low mood and poor sleep, which is
consistent with a diagnosis of chronic pain syndrome.

Ms. Sevinski was at increased risk for development of
chronic pain syndrome based on her prior history of probable psychiatric
disorders (addiction, anxiety, and depression) as well as significant social
stressors including a dysfunctional and allegedly abusive relationship. Medical
research has indicated that these factors put people at increased risk of
chronic pain syndrome when they suffer injuries.

Review of the clinical records
indicates that Ms. Sevinski had a prior history of pain in her neck, back,
and knees. It is my opinion that the MVA on November 27, 2007 was probably an
exacerbator of her pre-existing pain, and caused her chronic pain syndrome

[56]       
Dr. McDougall also opined that the plaintiff’s “psychosocial
issues, substance abuse issues and mental health concerns” were all barriers to
the plaintiff “completing a timely convalescence from any injury or illness”. Dr. McDougall
went on to say that the plaintiff’s delayed convalescence from the Accident was
“not unanticipated” given her multiple pre-existing medical conditions.

[57]       
Both physicians were relatively consistent in the prognosis they
provided as well as in their proposed treatment programs. Dr. Finlayson
said:

There is potential for
improvement in Ms. Sevinski’s symptoms if she has the opportunity to
engage in interdisciplinary pain management program. It is improbable that
there will be complete resolution of her pain, but there is potential for her
to develop coping strategies to manage her current level of pain. Engagement in
a regular core strengthening and aerobic conditioning exercise program will
probably also reduce but not eliminate her pain.

[58]       
The interdisciplinary pain management program referred to by Dr. Finlayson
is one which would include “medical intervention, physiotherapy intervention
and psychiatric/psychological support”.

[59]       
Importantly, Dr. Finlayson acknowledged that just as Ms. Sevinski’s
pre-existing difficulties with depression, anxiety and substance abuse made her
more vulnerable to her present chronic condition, those same difficulties
constituted an impediment to her recovery. She also indicated that in instances
where chronic pain persisted beyond two years, the prospect of its resolution
was diminished.

[60]       
Dr. McDougall provided the following opinions:

…The patient now presents as a deconditioned and depressed
patient. The major barriers to this patient completing her convalescence are,
in my opinion, those of her mood disorder and, of course, her deconditioned
status. The other major problem has been the patient’s struggles with drug
addictions, specifically alcohol and cocaine. I also note that marijuana has
been referenced in the clinical record. …

… Again, in my opinion, the
prognosis for this patient is favourable. In my opinion, this patient can be
better than she is. This goes to what in my opinion, are the recommendations
for this patient with respect to her past medical problems, i.e. her substance
abuse issues and the ongoing treatment for her mood disorder. I note, however,
that the mood disorder will almost certainly be resistant to treatment until
the substance abuse issues are under long-term in total control, i.e.
abstinence. It is also my opinion that this patient is deconditioned. This goes
to the delayed convalescence for the patient from these extensive soft tissues
injuries. A short course of physical therapy, more in line with an athletic
therapy model is recommended. In my opinion, the patient should attend at a
physical therapy program, which must be active, going twice a week for another
six weeks. … Pending a resolution and completion of an active physiotherapy
program and ongoing support with respect to the patient’s substance abuse and
mental health issues, a more positive prognosis can be given. I do not expect
this patient to have permanent clinical impairments as a result of injuries from
this motor vehicle accident. In my opinion, the patient is an otherwise healthy
young lady. This goes to your further question with respect to my
recommendations for any further treatments. This goes to avoiding the use of
pharmaceuticals. There is no evidence this patient needs any surgical
resolution to her current problems. Again the physical therapy model is in my
opinion, the most appropriate methodology to help the patient complete her
recovery.

[61]       
I accept the conclusions of each of Dr. Finlayson and Dr. McDougall.
In particular, I accept that the plaintiff’s pre-existing mental condition, her
addiction disorder and her history of abuse and difficult relationships all
contributed to her delayed recovery and to her present condition.

[62]       
There is no doubt and the defendants did not contest that a plaintiff is
to be compensated for her injuries even where, owing to some unusual or unique
attribute of the plaintiff, the injury was greater or of a different type than
one would expect an average person to sustain and the extent of the damage
could not reasonably have been foreseen by the tortfeasor. The last aspect of
the foregoing proposition was confirmed by Rowles J.A., in Yoshikawa v. Yu (1996),
21 B.C.L.R. (3d) 318 (C.A.) at para. 115:

The thin skull principle itself embodies a policy, as Wilson
J.A. said in her concurring reasons for judgment in Cotic v. Gray
(1981), 17 C.C.L.T. 138, (Ont. C.A.) when she was considering the concept of
foreseeability in relation to the thin skull rule (at 178):

…

The concept that the wrongdoer takes his victim as he
finds him has little to do with foreseeabiIity. It has a great deal to do with
who, as a policy matter, should bear the loss when for reasons of peculiar
vulnerability the victim of the defendant’s negligence suffers greater injury
or a different type of injury than the average victim would have suffered. It
premises, as it were, a norm of vulnerability of the average person and makes
the wrongdoer rather than the victim bear the damage suffered by those falling
short of the norm.

[Emphasis added by Rowles J.A.]

Mitigation

[63]       
The parties agree that the following comments of Rowles J.A. in Graham
v. Rogers, 2001 BCCA 432, concisely capture the respective obligations of
the parties when the issue of mitigation is raised in a personal injury case:

[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. …

[64]       
The defendants argue that the plaintiff has failed to mitigate her
losses by failing to:

a)      engage
in a proper exercise routine program;

b)      engage
in a proper physiotherapy program;

c)      take
steps to enrol at the free chronic pain clinics at Vancouver General Hospital
or St. Paul’s Hospital;

d)      take
steps to address her depression; and

e)      address
or seek treatment for her addiction issues.

[65]       
The plaintiff raises several arguments in response. First, she argues
that the defendants failed to lead any evidence that the plaintiff’s condition
could or would have been improved through treatment of her substance abuse and
mental health issues. I do not accept this. Both the portions of the report of Dr. McDougall
which I referred to and the evidence of Dr. Finlayson which I have alluded
to emphasize that the plaintiff’s failure to address her addiction and mental
health issues were and continue to be an impediment to her restoring her
physical well-being.

[66]       
Second, the plaintiff argues that the defendants must establish that she
failed to follow a recommended course of medical treatment. Cases such as Chiu
v. Chiu, 2002 BCCA 618 at para. 57 and Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144 at para. 56, both
relied on by the plaintiff, deal with whether a plaintiff has acted
unreasonably in eschewing a recommended course of treatment from a qualified
medical practitioner. In Niloufari v. Coumont, 2009 BCCA 517, the Court
concluded that there was no evidence that a referral or recommendation was made
by the family doctor, no evidence that the appellant failed to follow her
recommendation, and no evidence that his pain and suffering would have been
reduced if he had seen another psychiatrist. Accordingly, the deduction made by
the trial judge for the plaintiff’s failure to mitigate was improper.

[67]       
These cases do not state or suggest, however, that the doctrine of
mitigation is not relevant in a personal injury action unless the defendant can
establish that a formal medical recommendation for a prescribed course of
conduct was made to the plaintiff. This is simply the factual context within
which the issue of mitigation frequently arises.

[68]       
Instead, the proper starting point is the obligation of an injured
plaintiff to seek appropriate medical assistance. The failure to seek such
assistance cannot and does not displace or diminish the plaintiff’s obligation
to mitigate his or her loss. Thus, in Jamie Cassels and Elizabeth
Adjin-Tettey, Remedies: The Law of Damages, 2nd ed. (Toronto: Irwin Law,
2008) at 389, the authors state:

Plaintiffs who are tortiously
injured have an obligation to take reasonable steps to mitigate their injuries
and cannot collect damages for losses that could be avoided. Mitigation in the
circumstances ordinarily requires the plaintiff to seek appropriate medical
treatment …

[69]       
Similarly, in S.M. Waddams, The Law of Damages, looseleaf
(Aurora, Ont: Thomson Returers, 1991) at 15.260 the author states:

In personal injury cases, the
plaintiff is obligated to submit to reasonable medical treatment and to seek
and follow medical advice where appropriate.

[70]       
I have said that I do not accept that the plaintiff sought adequate assistance
for or described the nature and extent of her difficulties with any medical
practitioner and, in particular, with her family doctor, Dr. Forrest. I
view this failure as significant. Had the plaintiff acted as she reasonably
should have, I am satisfied that Dr. Forrest would, in the first instance
and at a minimum, have prescribed some form of exercise or other rehabilitative
program. If the plaintiff’s condition persisted, I am satisfied that the
plaintiff would have been referred to an individual with increased or more
focused expertise. I believe this is a reasonable inference or conclusion and
it is consistent with Dr. Forrest’s earlier practice. It is she, as I have
said, who referred the plaintiff to Dr. Côté Beck for her depression. It
is also clear from Dr. Forrest’s notes that she referred the plaintiff to
other specialists when it was appropriate to do so. Finally, it is clear that Dr. Forrest
and the plaintiff discussed her substance abuse and the need for her to obtain treatment,
albeit not in the specific context of her physical injuries and the Accident.

[71]       
Had the plaintiff been directed to or sought assistance from someone who
had the skills of either Dr. Finlayson or Dr. McDougall, I am
satisfied and find that she would have been told that in order to address her
ongoing pain she would have to participate in a course of physiotherapy as well
as address her ongoing substance abuse and mental health issues. This
conclusion is reasonable because it is the very advice both doctors are
providing at this time. Dr. Finlayson would also have recommended that the
plaintiff attend an interdisciplinary pain management clinic.

[72]       
Finally, the plaintiff argues that her substance abuse and mental health
issues existed prior to the Accident and that this fact informs the
reasonableness of her efforts to mitigate. The plaintiff drew an analogy with
cases that address morbid obesity, a medical condition that is neither caused
nor exacerbated by a tortious incident, but which can nevertheless contribute
to an injury. Thus, in Humphrey v. Rancier, [1985] B.C.J. No. 835 (S.C.)
the plaintiff was injured in a motor vehicle collision and suffered injury to
her hip, tibia, wrist and back. The plaintiff was obese and was advised to
reduce her weight to diminish her disability and pain. McLachlin J., as she
then was, stated:

The question is whether the
plaintiff has taken reasonable steps to minimize her loss. The court must
assess whether this test has been met by looking at all the circumstances of
the case. Here we have an obese lady before the accident — someone who had been
obese all her adult life. Her brother and sister are both obese. She appears,
as her counsel put it, to be a weak woman in the sense that she has not had
very good success at controlling her smoking or her eating on a consistent
basis in the past despite medical advice and despite her clear efforts. She has
tried to lose weight and has succeeded to an extent, at least temporarily. She
is still trying, she says.

Of equal importance to the principle that the plaintiff must
act reasonably in minimizing her loss and her damages, is another principle,
namely that the defendant takes his victim as he finds him or her. In the
circumstances in this case, given the plaintiff’s pre-accident history of
obesity, given her particular personality, given her honest efforts from time
to time to lose weight and to keep it off, I am not satisfied that it can be
said that the plaintiff has acted unreasonably and has failed to mitigate her damages,
with the result that her damages should be lessened because she has not lost
weight.

[73]       
The plaintiff argues that Humphrey establishes that she is only
expected to go so far as honest effort permits, given her pre-existing and
underlying condition. In order to address this last submission, I must
distinguish between the plaintiff’s efforts to address her injuries with some
type of physical therapy or exercise and her efforts to address her addiction
and mental health issues.

[74]       
As it pertains to this first category of activity, the plaintiff
testified that she first sought, after getting a referral from Dr. Forrest,
to attend physiotherapy in January 2008. She said she could not afford the cost
of the session and did not go. There is no record of any such referral in Dr. Forrest’s
notes. Ms. Sevinski made no further effort to obtain treatment until
September 2009. Thereafter, she went to some massage therapy and to a few
physiotherapy sessions. She did not go to any sustained course of physiotherapy
partly, as I have said, because she said she could not get child care and partly
because she did not believe it helped her. She has also engaged in various
forms of exercise. None of this appears to have started until relatively
recently. It also appears to have been both modest and sporadic in nature. Ms. Sevinski
said she did not do more exercise either because it was painful or because, in
her view, it was not very useful.

[75]       
The value of such treatment is emphasized in each of the reports of Drs. Finlayson
and McDougall. Each emphasized the ongoing importance of such treatment even at
this point in time. Dr. McDougall, in particular, placed significant
emphasis on the plaintiff’s deconditioned state and on the relevance of that
status to her present difficulties.

[76]       
At bottom, the plaintiff did virtually nothing to address her injury and
ongoing difficulties until late in 2009, more than two years after the Accident
and at the point at which, based on Dr. Finlayson’s evidence, reversal of
some of these difficulties would be more challenging. Even since that date her
efforts have been sporadic and without any real focus. I do not accept that Ms. Sevinski
could not afford these treatments or that a lack of child care presented an
obstacle to treatment for the reasons I have stated. Instead, the plaintiff had
options available to her had she asked reasonably and attached appropriate
importance to her physical well-being and physical rehabilitation.

[77]       
I am satisfied that had Ms. Sevinski acted reasonably and undertaken
a focused course of physiotherapy treatment and/or a sustained exercise
regimen, she would have received substantial benefit from such treatment: Gregory
at para. 56. Again, the evidence of both doctors supports this
inference.

[78]       
The plaintiff’s efforts to address her substance abuse and other issues
fall into a somewhat different category. Here the plaintiff, to her credit, has
made significant progress albeit incrementally and over a three and one-half year
period. Prior to the Accident, the plaintiff had a longstanding problem with
drug and alcohol addiction. At the time of the Accident the plaintiff was
sober. Thereafter she relapsed. She has not used cocaine since August 2008.
During the period when she was pregnant with Tegan, she was again sober.
Thereafter she relapsed. She has attended weekly drug and alcohol counselling
since May 2009 and has completed the 60 day inpatient alcohol rehabilitation
program to which I referred. The report of Dr. Finlayson indicates that
the plaintiff has declined to see a mental health advisor but that she has
taken antidepressants.

[79]       
In Janiak v. Ippolito, [1985] 1 S.C.R. 146, the Court dealt with
various pre-existing conditions or attributes in a plaintiff’s make-up which influenced
her or his ability to obtain or pursue some objectively reasonable course of
treatment. In addressing a pre-existing psychological infirmity, Wilson J., for
the Court, said at 159:

The other element that has to be
considered in determining whether the objective test of reasonableness applies
to the decision made by the alleged thin skulled plaintiff is the nature
of the pre-existing psychological infirmity. It is evident that not every
pre-existing state of mind can be said to amount to a psychological thin skull.
It seems to me that the line must be drawn between those plaintiffs who are
capable of making a rational decision regarding their own care and those who,
due to some pre-existing psychological condition, are not capable of making
such a decision. As pointed out by Professor Fleming, a plaintiff cannot by
making an unreasonable decision in regard to his own medical treatment “unload
upon the defendant the consequences of his own stupidity or irrational
scruples”: Fleming, The Law of Torts (6th ed. 1983), p. 226.
Accordingly, non-pathological but distinctive subjective attributes of the
plaintiff’s personality and mental composition are ignored in favour of an
objective assessment of the reasonableness of his choice. So long as he is
capable of choice the assumption of tort damages theory must be that he himself
assumes the cost of any unreasonable decision. On the other hand, if due to
some pre-existing psychological condition he is incapable of making a choice at
all, then he should be treated as falling within the thin skull category and
should not be made to bear the cost once it is established that he has been
wrongfully injured.

[Emphasis in original.]

[80]       
I accept that I have no evidence before me which addresses whether a
plaintiff’s pre-existing drug and alcohol addiction constitutes a psychological
or physical obstacle to their acting reasonably and desisting in an ongoing
pattern of harmful behaviour. I consider, however, that I can take notice of
the significant and serious challenges which exist when a drug addict or
alcoholic struggles to achieve sobriety.

[81]       
The plaintiff’s efforts to achieve sobriety and to address her mental
well-being have not been perfect, but I find that they have been reasonable which
is the legal standard required of her.

[82]       
Similarly, I do not consider that the plaintiff’s failure to attend one
of the free chronic pain clinics at Vancouver General Hospital or St. Paul’s Hospital
constituted a failure to act reasonably or that any such failure constitutes a
failure to mitigate her losses. The plaintiff would not reasonably have sought
to go to such a centre for some time after the Accident and until it became
apparent that her difficulties were enduring in nature. Dr. Finlayson
testified that there is a two or three-year waiting list to attend these
facilities. With these timelines in mind, the plaintiff would not, acting
reasonably, have yet had access to the facilities in question.

[83]       
In summary, I find the plaintiff’s failure to raise her difficulties at
an early stage and/or on an ongoing basis with appropriate medical advisers, her
failure to obtain guidance or advice on the treatment of those difficulties,
and her failure to engage actively and diligently in a course of physical or rehabilitative
treatment, together constitute a failure to mitigate her losses.

Non-pecuniary Losses

[84]       
I have described the plaintiff’s various injuries, her evidence on the
intensity and consequence of such injuries and my conclusions on the extent to
which I accept that they impact on her day-to-day life. The assessment of Ms. Sevinski’s
general loss is rendered much more difficult by the very limited evidence which
addressed her activities and life prior to the Accident. Thus, for example, the
plaintiff says she is now limited in her ability to participate in various
forms of outdoor and recreational activity. I have no sense of how often or
whether Ms. Sevinski participated in any such activities in the past. If
so, was it monthly or annually? Certainly I have no evidence that the plaintiff
historically engaged with any sort of regularity in various past-times, hobbies
or activities that are now rendered more difficult for her.

[85]       
The brief description given by Ms. Sevinski of the three or four
year period prior to the Accident painted a grim picture. She was in an abusive
relationship, had developed and struggled with serious addiction disorders and
spent much time by herself. Some of those realities continued to some extent
after the Accident. If anything, the plaintiff’s life has, in many respects,
improved and is much better today than it was prior to the Accident.

[86]       
Having said this, the medical evidence establishes, and I have accepted,
that the plaintiff does struggle with chronic pain syndrome. Her ability to
function normally and to engage in the breadth of activities which she would
like to, as well as to interact with her children and Mr. Rambold in a
pain-free way, is diminished.

[87]       
Looking into the future there were various contingencies which are
relevant. There is no medical evidence which suggests that Ms. Sevinski’s condition
will deteriorate, that the Accident gave rise to the prospect of any
degenerative condition or that it adversely impacted on her addiction and
mental health issues. Thus, the primary and more difficult question is the
extent to which her present physical condition will improve. Dr. McDougall
has said that the plaintiff “can be better than she is”, that the “prognosis
for this patient is favourable” and that with proper treatment “there is an
expectation of recovery”. Dr. Finlayson was somewhat more reserved in
stating that the “complete resolution” of the plaintiff’s pain is improbable.

[88]       
All of this is premised on the plaintiff addressing her addiction and
depression disorders, on her engaging on a sustained basis in a physical
therapy and exercise program and on other treatment. Whether the plaintiff can
achieve and sustain these various changes, and in particular her sobriety, is
uncertain. However, there is a substantial possibility that she will be able to.
She has, to her great credit, made significant and positive steps forward. She
is also now in a much more positive and nurturing home environment. She has
access to ongoing counselling.

[89]       
Based on these considerations I assess Ms. Sevinski’s non-pecuniary
damages at $60,000. This is without taking the question of mitigation into
account. This figure recognizes and accounts for the various non-exhaustive
factors that are identified in Stapley v. Hejslet, 2006 BCCA 34 at para. 46.
I have also been guided by the results in each of Beaudry v. Kishigweb,
2010 BCSC 915, Jackson v. Mongrain, 2010 BCSC 1866 and Jokhadar v.
Dehkhodaei, 2010 BCSC 1643.

[90]       
Each of these cases has its own unique considerations and my award
recognizes this. For example, the prognosis for the plaintiff’s recovery in Jackson
was worse than that of Ms. Sevinski. In Jokhadar, the plaintiff’s
injury also caused a worsening of her bipolar disorder. In reaching this figure
I have also considered the various and severe limitations on the plaintiff’s
lifestyle and condition prior to the Accident. I have placed little weight on
the cases provided to me by the defendants. In my view, these cases address circumstances
where the plaintiffs suffered injuries of a very different nature.

[91]       
Finally, I consider that an adjustment of 25% should be made to the
award that I otherwise would have made. In arriving at this figure I am
particularly influenced by the fact that the pain and discomfort that Ms. Sevinski
has struggled with over the past three and one-half years as well as the
prospect of her making a full recovery are both significantly affected by her
failure to take those reasonable steps that I have identified. Therefore, the
plaintiff’s award for her non-pecuniary losses is reduced to $45,000 as a
result of her failure to mitigate her losses.

Future Wage Loss

[92]       
The plaintiff’s case for future wage loss was directed, in the main, to
establishing that she will be unable, in the future, to work in the
construction industry. The plaintiff was employed in this trade as a very young
woman from 2000 to 2003. Mr. Doucet, a carpenter, who worked with and
oversaw the plaintiff’s work during this period, described the nature of her
work and abilities during these years. He described her as competent,
hard-working and reliable. She progressed from being a labourer, to putting
walls together and to enjoying a “small supervisory role” wherein she oversaw
the work of other labourers. The plaintiff confirmed that the work was very
physical in nature. It required much lifting, the days were long and the
plaintiff was on her feet all day. The work, however, was intermittent in the
sense that the crew moved from job to job in different towns and there were periods
of time when there was no work.

[93]       
The plaintiff confirmed that she enjoyed this work and that it gave her
a sense of self worth. Her hourly wage during this period increased from $10 to
$18 per hour. Shortly after the plaintiff became pregnant, she stopped doing
this work and, for a variety of reasons, never returned to it.

[94]       
The plaintiff’s claim for future wage loss is difficult. The most the
plaintiff ever earned, as a construction worker, was in 2002 when she earned
approximately $14,000. For all practical purposes, the plaintiff has not worked
on any regular or sustained basis in the past eight years. She has generally
been on welfare. She held a few jobs as a clerk or server in 2007-2008 for a
few weeks or months at a time. Furthermore, the plaintiff does not intend to
return to work for at least the next five years or until her daughter is in
school.

[95]       
At that point the plaintiff will be 35 years old. She will not have
worked in any capacity in almost a decade. She has a very limited work history,
little education and limited skills.

[96]       
The suggestion that she would, but for the Accident, have returned to
the construction industry is very questionable. The plaintiff acknowledged that
in 2002 and 2003 she smoked marijuana daily. She said that in large part this
was to deal with the neck and back pain she had from working such long hours.
Why she would be better able to do this work, at the age of 35 or older, is not
clear. Furthermore, the plaintiff accepted that there was little construction
work in Fernie or the surrounding area. She admitted that in the past she was
reluctant to pursue this work because it would have required moving about.
These factors would be still greater impediments to pursuing such work now that
she has young children and a family.

[97]       
Still further, the plaintiff’s employability is complicated by the
various other health issues that she has only recently begun to control and address. Dr. McDougall,
in his assessment of August 30, 2010, said:

In my opinion, this patient is
currently not fit for employment. The patient is significantly deconditioned
and then note the patient’s mood disorder. I have already referenced the
patient’s substance abuse issues and psychosocial issues above. Given however
the patient’s current physical deconditioned status, particularly with respect
to her weight gain and mood disorder complicated by the body image or dysphoria
issue, there is very little likelihood that this patient will achieve success
in employment at this time. Again, however I think that this is a temporary
issue and that pending completion of the patient’s recovery, there is an
expectation that the plaintiff will be able to return employable status.

[98]       
The evidence of each of Mr. Brown and Ms. Martins also informs
the extent to which the plaintiff’s pre-existing health issues interfered with
her ability to maintain any form of employment.

[99]       
Thus, there are numerous contingencies which are relevant to her
employability. There is a substantial possibility that the plaintiff will be
able to maintain her sobriety. There is similarly, based on history, a
substantial possibility that she will relapse. There is a substantial
possibility that her recent efforts to improve her education will open doors
and create new opportunities for her. There is a substantial possibility,
though not a probability, that with treatment her pain will fully resolve.

[100]    
The test for loss of income earning capacity was recently clarified by
the Court of Appeal clarified in Perren v. Lalari, 2010 BCCA 140:

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

[Emphasis in original.]

[101]    
The various means of potentially arriving at a dollar value for the loss
of capacity to earn income were addressed by Finch J.A., as he then was, and
for the majority, in Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260 (C.A.) at para. 43:

The cases to which we were
referred suggest various means of assigning a dollar value of the loss of
capacity to earn income. One method is to postulate a minimum annual income loss
for the plaintiff’s remaining years of work, to multiply the annual projected
loss times the number of years remaining, and to calculate a present value of
this sum. Another is to award the plaintiff’s entire annual income for one or
more years. Another is to award the present value of some nominal percentage
loss per annum applied against the plaintiff’s expected annual income, in the
end, all of these methods seem equally arbitrary. It has, however, often been
said that the difficulty of making a fair assessment of damages cannot relieve
the court of its duty to do so. In all the circumstances, I would regard a fair
award under this head to be the sum of $40,000.

[102]    
Here the plaintiff’s lack of both an earning history and any past
earning achievement renders reference to a mathematical framework unrealistic.
Though provided with actuarial evidence I do not consider such evidence useful.
In the present case calculating a fixed annual loss, based on an assumed
retirement age is completely artificial and does not even serve to provide a
framework for an assessment. As indicated in Perren at para. 11,
the four factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.) at para. 8, are more useful when the plaintiff’s loss is not easily
measurable. The four 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 him, had he not been injured; and

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

[103]     Here the
plaintiff suffers from some pain when she stands, lifts, bends or sits. These
symptoms will be impediments to her securing the types of waitressing or other
jobs that she has historically held.

[104]     The
defendants argue that in order to establish a “real and substantial possibility
of future income loss, there must be some expert medical evidence in support of
the claim”. The excerpt from the report of Dr. McDougall that I referred
to, though it addresses the plaintiff’s difficulties at large, provides some
such support. So too does the report of Dr. Finlayson in its conclusion
that the plaintiff will likely continue to struggle with pain into the future.
The prospect of the plaintiff living with some level of ongoing pain, even if
manageable, has a real and substantial possibility of rendering the plaintiff
less able to earn income. This is particularly the case when the employment
options available to her are predominantly physical in nature.

[105]     I also
note that Ms. Martins confirmed that had she known the plaintiff had been
injured she would have been less likely to hire her. This evidence supports the
reasonable inference that an employer who is aware that an employee suffers
from some level of chronic pain may be less likely to employ that person. This
is particularly so, again, when that employment is likely to have some physical
component attached to it.

[106]     I consider
that the amount of $30,000 properly accounts for the various considerations I
have described. I note that this figure would reflect approximately two years
of income, without any inflationary adjustment, at the highest level of income Ms. Sevinski
has ever achieved. I would also reduce this figure by 25% to recognize Ms. Sevinski’s
failure to mitigate her losses and to reflect the fact that the prospect of her
suffering future income loss is directly affected by that failure. Therefore,
the plaintiff’s award for future income loss is reduced to $22,500.

Past Wage Loss

[107]     The
parties have agreed on an amount of $1,500 for such loss.

Special Damages

[108]     The
defendants admit that the plaintiff has expended $2,019.25 for various
categories of special damages, but dispute that the special damages claimed
relate to any injury sustained in the Accident. I do not accept that this is
so. The funds in question were spent by the plaintiff for massage therapy and
physiotherapy treatments. Those treatments were necessitated by the Accident.
Therefore, the plaintiff is awarded $2,019.25 in special damages.

Cost of Future Care

[109]    
Future care claims should be assessed by asking what expenses would be
incurred by a reasonable person to obtain medically recommended treatment. In Bystedt
v. Hay, 2001 BCSC 1735, Madam Justice D. Smith, as she then was, observed:

[163] Thus, the claim must be
supported by evidence that establishes the proposed care is what a reasonable
person of ample means would provide in order to meet what the plaintiff “reasonably
needs to expend for the purpose of making good the loss”…. It must also be
based on objective test of what is moderate and fair to both parties. …

[110]    
In her report Dr. Finlayson suggested three forms of care for the
plaintiff:

a)         Interdisciplinary
Pain Management: Dr. Finlayson opined that Ms. Sevinski would benefit
from attending an intensive therapy clinic. Such clinics consist of
physiotherapy, medication and psychological counselling. They usually consist
of a six-week inpatient program. The cost of a private clinic is approximately
$12,000. Public clinics, as I have noted, often have waiting lists of two to
three years. None of this evidence was contested and I consider the expense
reasonable under the circumstances.

b)         Physiotherapy:
Dr. Finlayson has proposed that the plaintiff engage in a core
strengthening and general aerobic conditioning program. This program would
initially be prescribed by a physiotherapist and thereafter followed-up on by a
kinesiologist or personal trainer. Dr. Finlayson considered that the
plaintiff would benefit from six to twelve physiotherapy sessions. I note that
this is consistent with the 12 such sessions which were proposed by Dr. McDougall.
Dr. Finlayson also considered that these physiotherapy sessions should be
followed by a further six to twelve sessions with a kinesiologist or personal
trainer and that there should be a further follow-up every three to six months
on an indefinite basis thereafter.

The evidence before me establishes
that the cost of a single physiotherapy treatment is $50. No amount was
provided to me as to what the cost of a session with a personal trainer would
be. I have assumed a like amount. I have concluded that an amount of $1,500
would properly and fully cover the costs associated with this proposed regimen.

c)         Psychological
Support: Dr. Finlayson indicated that the plaintiff required further
psychiatric and psychological assessment and management. No evidence was
provided, however, of how extended a course of treatment was required or of
what the cost of such treatment might be. Any attempt on my part to fix an appropriate
amount would be entirely speculative and accordingly I decline to do so: Job
v. Van Blankers, 2009 BCSC 230 at para. 147.

[111]     I have
awarded Ms. Sevinski the amount of $84,519.25. This figure is comprised of
the following distinct amounts:

a)         non-pecuniary damages of
$45,000.00;

b)         future wage losses of
$22,500.00;

c)         past wage losses of
$1,500.00;

d)         special damages of
$2,019.25; and

e)         future care costs of
$13,500.00.

[112]     I am
satisfied this global amount fairly compensates the plaintiff for her losses.

[113]    
The parties asked that I defer dealing with the issue of costs. The
parties can either deal with this issue in writing or, alternatively, contact
the Registry to fix a convenient date to speak to the matter before me.

“Voith J.”