IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111017

Docket: M060334

Registry:
Vancouver

Between:

Ricci Lynn Gilbert

Plaintiff

And

Anthony Solamon
Bottle and Steven Whitford

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Dickson

Reasons for Judgment

INTRODUCTION

[1]            
On March 8, 2005 the plaintiff, Ricci Lynn Gilbert, was injured in a motor
vehicle accident in Williams Lake, British Columbia.  She was a passenger in
the backseat of a vehicle driven by the defendant, Anthony Bottle, and owned by
the defendant, Steven Whitford, when the accident occurred.  Mr. Bottle was
impaired by alcohol when he approached a corner too quickly and lost control of
the vehicle, which spun across the roadway and came to rest suspended off the
ground against a fence.  Ms. Gilbert, who was not wearing a seatbelt, was
ejected from the rear hatch window and found unconscious on the ground below.

[2]            
Ms. Gilbert suffered a traumatic brain injury, a fractured clavicle
and soft tissue injuries as a result of the accident.  She claims substantial pecuniary
and non-pecuniary damages for those injuries and the associated loss that she has
sustained.

[3]            
Mr. Bottle testified at the trial but was not represented by
counsel.  He pleaded guilty to dangerous driving causing bodily harm in prior
criminal proceedings related to the accident and does not contest liability.  Mr. Whitford
and the third party, Insurance Corporation of British Columbia (“ICBC”), admit that
Mr. Bottle negligently caused the accident and that Mr. Whitford is
vicariously liable for his negligence.  They say, however, that Ms. Gilbert
was contributorily negligent because she failed to take care for her own safety
by getting into a vehicle driven by an obviously impaired driver and riding in
a position not equipped with a seatbelt. They also dispute the extent to which the
accident injured Ms. Gilbert’s physical, mental and emotional health and the
quantum of her claims for damages.  They say further that she failed to
mitigate her loss.

[4]            
Ms. Gilbert was 30 years old at the time of the accident.  She is a
First Nations woman who has lived much of her life on the Sugarcane Reserve
near Williams Lake.  Proud of her heritage and accomplished in many cultural
activities, Ms. Gilbert was exposed over the years to poverty, substance
abuse and other tragic circumstances often associated with reserve life in
Canada.  Nevertheless, while affected by these experiences, before the accident
she was a popular, warm-hearted woman who worked part-time with her mother and
others in “New Directions”, a personal development program offered to First
Nations communities.  Her intention for the future was to continue with New
Directions and also to work with single mothers or First Nations youth.

[5]            
Ms. Gilbert contends that, as a result of the accident, she
suffered a moderate traumatic brain injury with permanent sequelae, including
significant memory impairment, low frustration tolerance and emotional
disconnection.  She also suffered injuries to her collarbone, neck, shoulder, back
and legs which have led to chronic pain.  Although she acknowledges past
struggles with substance abuse, anxiety and emotional lability Ms. Gilbert
says these problems were not debilitating and they have increased substantially
since the accident.  As a result, she says her enjoyment of life, work skills
and future prospects are seriously compromised and claims damages for pain and
suffering, loss of past and future income earning capacity, and the cost of
future care.

[6]            
Mr. Whitford and ICBC concede that Ms. Gilbert suffered
injuries to her brain and body in the accident for which she is entitled to an
award for non-pecuniary damages.  They contend, however, that viewed from a
functional perspective her condition before and after the accident is
essentially unchanged.  In particular, they say that Ms. Gilbert’s work
and social life before and after the accident were seriously limited by her substance
abuse and emotional difficulties and deny that she has suffered any loss in
earning capacity.  They also challenge her reliability as a witness and claim
she was contributorily negligent and failed to mitigate her loss by exercising
and attending for recommended treatment.

ISSUES

[7]            
The issues for determination are:

a)             
Did Ms. Gilbert contribute negligently to her own injuries by
getting into the vehicle driven by Mr. Bottle and sitting in a position
not equipped with a seatbelt?  If so, to what extent?

b)             
What was Ms. Gilbert’s physical, mental and emotional condition and
level of function before and after the accident, and why?

c)              
What is Ms. Gilbert’s future prognosis?

d)             
Did Ms. Gilbert fail to mitigate her loss by not undertaking
reasonable forms of rehabilitation?

e)             
What quantum of damages should be awarded to Ms. Gilbert?

CREDIBILITY AND
RELIABILITY OF EVIDENCE

[8]            
The truthfulness, reliability and accuracy of Ms. Gilbert’s accounts
of her personal attributes and experiences before and after the accident are
key issues for determination.  The experts who assessed her relied to varying
extents on her accounts and the weight to be attributed to their opinions on
diagnosis, causation and prognosis depends largely on whether I find facts
consistent or otherwise with what she has said.  In particular, if I am not
satisfied that Ms. Gilbert’s account of a significant change in her
physical, mental and emotional state and behaviour is accurate then the
hypothesis upon which many of the expert opinions rest will be undermined: Samuel
v. Chrysler Credit Canada Ltd., 2007 BCCA 431, paras. 15, 49-50.

[9]            
In undertaking the fact-finding exercise I bear in mind the guidance of
the Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354, that I
must consider the preponderance of probabilities evident in the surrounding
circumstances and consider the evidence as a whole.  I am also mindful that
truthfulness and reliability are not necessarily synonymous.  A witness may sincerely
attempt to be truthful, but lack the perceptive, recall or narrative capacity
to provide reliable testimony on a given matter.  In cases such as this where
issues of substance abuse, cognitive impairment and the passage of time loom large
the ability of each witness to provide reliable testimony requires particularly
close scrutiny: R. v. Khelawon, 2006 SCC 57, para. 2; Tai v. De
Busscher et. al., 2007 BCCA 371, para. 44.

[10]        
Ms. Gilbert’s counsel submits that she was sometimes mistaken in
her testimony and prior statements but, nevertheless, was a generally credible
and reliable witness.  He attributes her poor memory and unusual presentation
on the witness stand to her brain injury and focuses on the areas of consistency
between her self-reports and those of her family and close friends.  In his
submission, although Ms. Gilbert inexplicably exaggerated the extent of
her pre-accident substance abuse her description of her life experiences and
mental, physical and emotional state before and after accident should, for the
most part, be accepted as accurate.

[11]        
In contrast, counsel for Mr. Whitford and ICBC submits that Ms. Gilbert’s
testimony was frequently vague, internally inconsistent and inconsistent with
her prior statements to others and on discovery.  Importantly, it was also
inconsistent with other more reliable testimony, including that of Mr. Bottle
and Ms. Judd.  In sum, regardless of the underlying explanation for her many
errors, he says that Ms. Gilbert was an entirely unreliable witness. 
For this reason, in his submission, her testimony should be approached with
great caution and, in several respects, rejected out of hand.

[12]        
There is merit to elements of both submissions.  Ms. Gilbert’s
memory is undeniably poor and she often contradicted herself both inside and
outside the courtroom.  That said, Ms. Gilbert impressed me as a sincere
individual who was genuinely anxious and confused about aspects of her life
experience, including aspects of her pre-accident and post-accident condition
and prior statements.  I am not persuaded, however, that she consciously
attempted to mislead, at least on most matters.  Rather, I conclude that in the
moment she believed much, if not all, of what she said, although she was
sometimes careless and mistaken.  Occasionally, she was also flippant and
immature.

[13]        
All things considered, I agree with defence counsel that Ms. Gilbert’s
testimony must be approached with considerable caution.  For this reason, I have
paid close attention to areas of consistency and inconsistency between her
evidence and that of others, including Ms. Coutlee, Ms. Antoine, Ms. Zabatel,
Ms. Chelsea, Ms. Dick, Ms. Basil, Ms. Gilbert’s mother,
Margaret Gilbert, Ms. Judd and her family physician, Dr. Bannerman, as
well as relevant records and reports.  I have also considered her many prior
inconsistent statements, most of which I am satisfied were a product of her memory
deficits and poor mental health.

[14]        
Ms. Coutlee, Ms. Antoine, Ms. Zabatel, Ms. Chelsea, Ms. Dick,
Ms. Basil, Ms. Judd and Dr. Bannerman were all generally credible
witnesses.  As defence counsel noted, they had variable opportunities to
observe Ms. Gilbert and, in that sense, their evidence is of variable
assistance in the fact-finding exercise.  Nevertheless, I am satisfied that
much, though not all, of their testimony was consistent with Ms. Gilbert’s
own impressions and account of her life.

[15]        
Defence counsel also submits that Margaret Gilbert was not a reliable
witness.  He says she did not actually know what her daughter was doing
before or after the accident, particularly in connection with substance abuse. 
As a result, he says she presented an inaccurate picture of Ms. Gilbert’s
functioning throughout.

[16]        
I do not accept this submission.  Like many mothers, Margaret Gilbert
was not as familiar as she believes with all of her daughter’s conduct and was inclined
to minimise troubling past experiences.  Nevertheless, I am satisfied that she
attempted to be truthful and was a largely reliable witness.  Importantly,
her description of Ms. Gilbert’s personal attributes was consistent with
that of other witnesses, as was her sense of a significant change in Ms. Gilbert’s
behaviour after the accident.  Taking into account her limited recall of her
daughter’s early life, I approach some of Margaret Gilbert’s testimony with a
measure of caution but I do not discount it.  On the contrary, I find it
helpful in the fact-finding exercise.

[17]        
I also accept that, for the most part, Mr. Bottle attempted to be
truthful.  Given his level of impairment at the time of the accident and confusion
regarding the background circumstances, however, I conclude that his testimony
must be approached with considerable caution.  In reaching this conclusion, I
have taken into account the different versions of events that Mr. Bottle
provided in different contexts and his tendency to describe them in a self-serving
manner.  For example, Mr. Bottle untruthfully told police he had not been
drinking prior to the accident and at trial admitted he was intoxicated.

[18]        
Mr. Bottle also spoke with an ICBC lawyer about the accident.  The ICBC
statement was produced to Ms. Gilbert’s counsel following a voir dire
conducted in the course of the trial.  Despite his expressed desire to keep the
statement confidential, I ruled that it was not privileged based on the
principles set out in authorities such as Steeves v. Rapanos (1982), 39
B.C.L.R. 60, affirmed at (1982) 41 B.C.L.R. 312 and Rutherford v. Sagard,
2001 BCSC 365.

[19]        
Mr. Bottle testified that he did not recall why he gave the ICBC statement
and said he felt he had to give one if asked to do so.  This testimony did not
establish the statement was provided for the dominant purpose of litigation and
given its relevance I ordered him to produce it for purposes of
cross-examination.  After the ICBC statement was put to him on
cross-examination, Mr. Bottle admitted considerable uncertainty as to the
background circumstances of the accident.  As discussed below, this concession
was significant with respect to my findings on liability.

LIABILITY

[20]        
The defendants do not contest liability.  The issue for determination is
whether Ms. Gilbert contributed negligently to her own injuries by getting
into the vehicle driven by Mr. Bottle or sitting in an area not equipped
with a seatbelt and, if so, to what extent.

The Law

[21]        
When a plaintiff contributes negligently to causing his or her own
injury, pursuant to s. 4 of the Negligence Act, R.S.B.C. 1996,
c. 333, the court must determine relative degrees of fault.  The
prerequisite to a liability apportionment is that damage or loss was caused by
the fault of two or more persons.  The fault of the plaintiff at issue is the
failure to take reasonable care for his or her own safety: Bradley v. Bath,
2010 BCCA 10, paras. 24-27

[22]        
The onus is on the defendant to establish contributory negligence.  Once
established, apportionment is based on the degree to which each person was at
fault, not on the basis to which each person’s fault caused the damage or loss. 
In assessing comparative fault, or blameworthiness, the court must consider the
degree of risk created by each of the parties and apportion liability based on
the nature and extent of each party’s departure from the relevant standard of
care.  The levels of fault under consideration may vary from a reckless
disregard for safety to a minor lapse of care: Cempel v. Harrison Hot
Springs, [1997] B.C.J. No. 2853 (B.C.C.A.), paras. 23-24; Alberta
Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, para. 46; Bradley,
para. 24.

[23]        
In motor vehicle accident cases the defence of contributory negligence
may be advanced in a wide variety of circumstances.  Not uncommonly, a
plaintiff’s failure to wear a seatbelt is one; voluntarily riding with an impaired
driver is another.  In this case, both forms of the defence are advanced on
behalf of Mr. Whitford and ICBC.  It is desirable, therefore, to summarise
the core ideas that emerge from the authorities in similar cases.

[24]        
A plaintiff may be found to have failed to take reasonable care for his
or her own safety by not wearing an available seatbelt or by accepting a ride
in a vehicle not equipped with seatbelts.  If a seatbelt was available but not
worn, the evidence must establish that it was operational and the plaintiff’s
injuries would have been reduced by usage to justify a finding of contributory
negligence.  Although there is no hard and fast rule as to apportionment in
cases involving a successful seatbelt defence, the plaintiff is often held to
be 10% to 25% contributorily negligent: Harrison v. Brown, [1985]
B.C.J. No. 2889 (S.C.); Thon v. Podollan, 2001 BCSC 194; Ford v.
Henderson, 2005 BCSC 609.

[25]        
In Thon, A. F. Wilson J. found the plaintiffs were contributorily
negligent for accepting a ride in a vehicle not equipped with seatbelts and
apportioned liability of 10% to each of them.  In so doing, he explained the
difference between cases involving an available but unused seatbelt and those in
which a seatbelt is unavailable.  At paragraphs 56 and 57, he stated:

56        Counsel for the defendants submits that the
plaintiffs were contributorily negligent in assuming the risk of driving in the
back seat of the Podollan vehicle when it was not equipped with seat belts.  He
submits that if they had refused that risk, by not getting in the backseat of a
vehicle not equipped with seat belts, they would not have sustained their
injuries …

57        I find the defendants’
argument that, in this case, Tammy and Tanya did not take reasonable care for
their own interests, and thus contributed to their own injuries, by riding in a
vehicle not equipped with seat belts, to be unanswerable.  Counsel for the
plaintiffs submits that, even if the defendants have established the first part
of the so-called “seat belt defence”, as set out in Gagnon v. Beaulieu,
[1997] 1 W.W.R. 702 (B.C.S.C.), they have not established the second branch,
that the injuries would have been prevented or less severe if it had been
worn.  However, the argument is not that the injuries would have been prevented
or reduced, if the plaintiffs had worn an available seat belt.  Rather, it is
that the injuries would have been avoided entirely if the plaintiffs had not
assumed the risk of riding in the back of the Jeep without seat belts.  As
counsel for the defendants pointed out, the important distinction between
choosing to ride in a vehicle without a seat belt, and choosing not to wear an
available seat belt, relates to the consequences of the negligence.  In the
former circumstances, the exercise of reasonable care would have avoided the
injuries in their entirety; in the latter circumstances, involvement in the
accident would not have been avoided, and the issue thus arises as to whether
the injuries would have been reduced by seat belt usage…

[26]        
A plaintiff may also be found to have failed to take reasonable care for
his or her own safety by accepting a ride with an intoxicated driver when the
plaintiff knew or should have known of the driver’s intoxication when the ride
was accepted.  An objective assessment of all of the circumstances is required
and, where the plaintiff joins the defendant in becoming intoxicated, liability
may be imposed taking into account their joint participation in a hazardous
enterprise.  In such cases, the plaintiff is often held to be 25% to 40%
contributorily negligent: Pottage v. Patterson (1980), 24 B.C.L.R. 43
(S.C.); Walsh v. Gougeon, [1989] B.C.J. No. 1446 (S.C.); Neufeld
v. Foster, [1999] B.C.J. No. 764; Holton v. MacKinnon, 2005
BCSC 41.

[27]        
In Neufeld, L. Smith J. considered defences of contributory
negligence based on both the plaintiff’s failure to wear an available seat belt
and voluntary riding with an impaired driver.  The plaintiff, the defendant and
others were over-served alcohol at a pub, left the pub intoxicated and were involved
in an accident shortly thereafter.  L. Smith J. concluded that the evidence did
not prove the plaintiff’s injuries would have been reduced if she had worn the
seat belt.  She accepted, however, that the plaintiff knew the driver was
intoxicated and failed to show appropriate regard for her own safety by
accepting the ride.  In these circumstances, she apportioned liability 50% to
the defendant, 20% to the pub and 30% to the plaintiff.

The Facts

[28]        
Ms. Gilbert and Mr. Bottle both testified about the events
surrounding the accident.  Their accounts differed in several significant
respects.  Both were poor historians and, in the absence of independent
evidence, the degree to which the differences between the two accounts can be
resolved is limited.  For this reason, certain contentious factual assertions relating
to contributory negligence must be dealt with based on the burden of proof.

[29]        
Ms. Gilbert was living with a friend on the Sugar Cane Reserve at
the time of the accident.  She and Mr. Bottle were not previously
acquainted but they had mutual friends, including Chris Wycotte.  Mr. Wycotte
lived on the reserve in what Ms. Gilbert described as a “party house”. 
His house was located near Margaret Gilbert’s house.

[30]        
On the afternoon of March 8, 2005 Ms. Gilbert drank some beer at
her friend’s home, but she did not become heavily intoxicated.  When the others
present left or passed out she went over to her mother’s home.  Shortly after
she arrived, however, Ms. Gilbert and her mother got into an argument.  As
a result, she decided to leave and find a ride into Williams Lake, where she
planned to go to the bar.

[31]        
Ms. Gilbert heard music coming from Mr. Wycotte’s house and
began to walk toward it.  She insisted when testifying, however, that she did
not go inside the house.  In her direct testimony Ms. Gilbert claimed that
she encountered Mr. Bottle, Mr. Wycotte and Sean Cloutier in a vehicle
driven by Mr. Bottle pulling out of the Wycotte driveway.  She said she asked
for a ride, Mr. Bottle agreed, and she immediately jumped into the
backseat of the car.  It was dark outside and she did not notice Mr. Bottle
exhibiting signs of impairment before she got inside.

[32]        
On cross-examination Ms. Gilbert revised her testimony slightly but
significantly.  In response to questions about a prior inconsistent statement, she
claimed she spent about 15 minutes in the yard of Mr. Wycotte’s house
before the group departed for Williams Lake.  She remained adamant, however, that
she did not go inside the house.  When asked if she previously acknowledged
drinking at the Wycotte house, she repeated her assertion that she’d been
drinking before her arrival but denied doing so when she was there.

[33]        
Mr. Bottle’s account was quite different from that of Ms. Gilbert. 
He testified that she came into Mr. Wycotte’s house and joined him and the
others in drinking beer and smoking marijuana.  He initially estimated that Ms. Gilbert
spent 40 minutes inside the house before the group departed.  After a
prior inconsistent statement was put to him, however, he testified he could
only say with confidence that he recalled Ms. Gilbert being inside the
house, drinking beer at a table.  He also testified that he and his friends
were speaking loudly and expressed the view that he was obviously impaired.

[34]        
When these events occurred Mr. Bottle was, by his own description,
a problem drinker.  To his credit, by the time of trial he had stopped drinking
alcohol entirely.  On March 8, 2005, however, Mr. Bottle had spent the afternoon
drinking a large amount of beer on a mountainside prior to arriving at Mr. Wycotte’s
home.  As he candidly conceded, when active, his drinking habit caused him
considerable confusion, difficulty and disruption in life.

[35]        
After sifting through the two accounts, I conclude that Ms. Gilbert
left her mother’s home, walked over to the Wycotte house, went inside and drank
some beer.  In my view, it is inherently unlikely that, as she claimed on
cross-examination, she spent 15 minutes standing outside of the house before the
group set off for Williams Lake.  In addition, Mr. Bottle’s claim that he clearly
recalls seeing Ms. Gilbert inside the house drinking beer rang true and harmonizes
with the preponderance of probabilities.  Accordingly, I accept this aspect of Mr. Bottle’s
testimony and reject that of Ms. Gilbert.

[36]        
I do not know if Ms. Gilbert attempted consciously to mislead when
she testified that she did not enter the Wycotte house or drink alcohol after
she went inside.  It may be that her poor memory has left her uncertain and she
has tried to fill in the blanks in a manner she perceives as favourable to her
own interests.  On the other hand, it may be that poor judgment and perceived
self interest have led her intentionally to misrepresent what she remembers.  Given
her impaired mental and emotional state, I am unable to reach a view on this
point.

[37]        
Regardless, I am not satisfied that the defence has established what
probably occurred when Ms. Gilbert was inside the house except that she
sat at a table and drank an unknown quantity of beer over an unknown period. 
In particular, I am not satisfied that Ms. Gilbert saw Mr. Bottle
drinking or displaying obvious signs of impairment.  As is apparent from Mr. Bottle’s
prior inconsistent statements and revised testimony, his memory of these events
is hazy and his impaired condition at the time limited his capacity to provide
reliable testimony.  In addition, Mr. Bottle was an experienced drinker
whose level of intoxication might not be apparent to those around him, particularly
strangers.  Although I do not doubt the sincerity of his belief that he was obviously
impaired I am not persuaded that he is correct.

[38]        
At some point shortly after Ms. Gilbert arrived at the Wycotte
house the group left for Williams Lake with Mr. Bottle driving Mr. Whitford’s
1982 Capri.  Mr. Cloutier sat in the front passenger seat; Mr. Wycotte
and Ms. Gilbert sat in the back.  Ms. Gilbert sat in the middle because
there was a baby seat, strapped in with one of the two available rear seatbelts,
occupying the left side of the backseat.  There was also a large “boom box” in
the rear cargo area of the car.

[39]        
Mr. Bottle pulled away quickly.  Ms. Gilbert did not realise
the left rear seatbelt was affixed to the baby seat until she was already inside
the car.  Unfortunately, there was no other seatbelt available for her to use when
Mr. Bottle began to drive away.

[40]        
Throughout the trip, Mr. Bottle drove quickly and erratically.  Ms. Gilbert
scrambled about for a seatbelt and tried, without success, to gain access to the
seatbelt affixed to the baby seat.  She also asked Mr. Bottle repeatedly to
slow down and let her out of the vehicle, but he refused.

[41]        
When the group arrived in Williams Lake, Mr. Bottle continued to
drive dangerously. Ms. Gilbert asked again to be let out.  Again, Mr. Bottle
refused.  Immediately before the accident, he took off fast from a stop sign
and geared down as he approached the corner of 2^nd Avenue and
Cornwall Crescent.  The vehicle caught some gravel and slid sideways into the
curb, spun around, slid across a grass embankment, struck a tree, vaulted a
ditched, rolled and ended up suspended on a fence with its front end in the air.

[42]        
The accident happened at approximately 8:30 p.m. Ms. Gilbert
recalls seeing lights coming toward the vehicle, but does not recall the crash
itself.  When the vehicle came to rest Mr. Bottle found her lying on the
ground directly below, apparently having fallen out of the rear hatch window. 
According to Mr. Bottle, Ms. Gilbert seemed to be snoring.  He tried
to assist her, heard sirens, panicked and ran away.

[43]        
Ms. Gilbert suffered many injuries as a result of the accident.  They
include a traumatic brain injury, fractured clavicle, head laceration, and soft
tissue injuries to her neck and back.

[44]        
Mr. Harvey West is a professional engineer and expert in traffic
accident reconstruction and seatbelt effectiveness.  He provided opinion
evidence in these areas with respect to the accident and certain injuries that Ms. Gilbert
sustained.  Based on a document and photographic review Mr. West was able
to assess some of the collision and occupant dynamics.  He did not, however, examine
the vehicle and could not comment on whether the left rear seatbelt was
functioning properly.  As he conceded, he also could not comment on Ms. Gilbert’s
personal susceptibility to brain injury.

[45]        
In his report, Mr. West opined that Ms. Gilbert’s head
laceration and fractured clavicle probably occurred as a consequence of her
ejection from the vehicle.  As he explained, her large head laceration is more
consistent with having been struck by something other than the rear window
glazing because an impact with tempered glass typically causes multiple light
lacerations, which were not apparent on the photographs.  Because Ms. Gilbert
was found on the ground outside the vehicle after the accident, Mr. West
concluded that her head laceration and fractured clavicle were most probably
caused by her ejection.

[46]        
Mr. West also opined that Ms. Gilbert would not have been
ejected had she occupied the left rear of the vehicle and worn a properly
functioning seatbelt.  He went on to say that, even if belted, her head could
have struck the rear hatch glazing if the glass remained intact throughout the
course of the collision.

[47]        
After hearing evidence on a voir dire I concluded that Mr. West’s
opinion on whether such an impact would likely have caused Ms. Gilbert to
suffer a brain injury was inadmissible.  I reached this conclusion because, in
my view, he did not have sufficient specialised knowledge on this matter to
render his opinion helpful.  His report was edited accordingly.

[48]        
Despite Mr. West’s admissible evidence I am not satisfied that any
of Ms. Gilbert’s injuries were probably caused by her ejection or would
probably have been avoided had she been wearing a seat belt.  I accept his
opinion that her head laceration was probably not caused by striking the rear window
glazing, but that does not make it more probable than not that ejection was the
injury’s cause.  The accident involved multiple impacts and the mechanism of Ms. Gilbert’s
injuries and movements within the vehicle are not clear on the evidence.  Items
such as the baby seat or boom box could have struck her and she could have
struck areas of the vehicle’s interior or its other occupants.  In addition,
her susceptibility to injury in the circumstances is entirely unknown.

Discussion

[49]        
Defence counsel submits that Ms. Gilbert contributed negligently to
her own injuries by voluntarily riding with an impaired driver.  He urges me to
accept Mr. Bottle’s testimony in preference to that of Ms. Gilbert
and find Ms. Gilbert must have known Mr. Bottle was impaired.  In the
alternative, he submits that, regardless of her state of knowledge as to Mr. Bottle’s
impairment, Ms. Gilbert knew the Wycotte house was a party house and
should have inquired into his level of sobriety before accepting a ride.  In
the circumstances, from an objective perspective, her failure to do so amounted
to a failure to take reasonable care for her own safety.  Accordingly, he says she
should be found contributorily negligent and a liability apportionment in the
range of 25% – 40% should be imposed.

[50]        
I do not accept that Ms. Gilbert contributed negligently to her own
injuries by riding with Mr. Bottle.  I have declined to find that Mr. Bottle
was obviously impaired or that, as in Neufeld, Ms. Gilbert actually
knew of his intoxication.  I also decline to find that she should have made
inquiries into his level of sobriety before accepting a ride with him into
Williams Lake.

[51]        
This is not a case in which the plaintiff and defendant were drinking together
for hours before the negligent driving in question.  On the contrary, although
she drank beer at the Wycotte house, Ms. Gilbert was there with Mr. Bottle
for only a brief period of time.  The evidence does not establish that he
displayed obvious signs of impairment and the surrounding circumstances did not
suggest he might well be intoxicated.  For example, no one mentioned that Mr. Bottle
was drinking all afternoon.  The single fact that the Wycotte house was a known
“party house” did not make it unreasonably risky for Ms. Gilbert to accept
a ride from anyone there regardless of his apparent state of sobriety or some
indication that heavy drinking had recently occurred.

[52]        
Defence counsel also submits that Ms. Gilbert contributed
negligently to her own injuries by agreeing to ride as a passenger in a
position not equipped with an available seatbelt.  He says the circumstances
are similar to those in Thon and, had Ms. Gilbert exercised
reasonable care, she could have avoided her injuries entirely by not assuming
the risk of riding in the middle backseat.  On this analysis, it is unnecessary
to consider the extent to which proper seatbelt use would have avoided or reduced
her injuries.  If, however, such an analysis is required he says, based on Mr. West’s
evidence, those injuries caused by ejection from the vehicle could have been
avoided.  He concedes that, on a Thon analysis, an apportionment in the
10% range would be appropriate.

[53]        
Despite his able submission, I cannot agree with defence counsel.  In my
view this case is not analogous to Thon, which concerned plaintiffs who
knowingly rode in an area of a vehicle not equipped with seatbelts (having done
so in the same area earlier in the day).  In this case, the backseat of the
Capri was equipped with two seatbelts but one was affixed to the baby seat and
the other was located in the position occupied by Mr. Wycotte.  Ms. Gilbert
was unaware of this situation until after she got in the car and, by that time,
Mr. Bottle had pulled away.  Thereafter, her attempts to access the
seatbelt used by the baby seat were unsuccessful, as were her attempts to
persuade Mr. Bottle to stop the car and let her out.

[54]        
In a perfect world Ms. Gilbert would have noticed the baby seat and
checked the availability of seatbelts in the backseat before she got into the
Capri.  It was dark outside, however, and I do not consider her failure in this
regard to amount to a want of reasonable care for her own safety.  In any
event, even if she had done so, moved the baby seat and used the now available seatbelt
there is no evidence that it was operating properly and I have not found her
injuries would have been reduced by seat belt usage.

[55]        
If I am wrong and Ms. Gilbert failed to take reasonable care for
her own safety either by failing to determine Mr. Bottle’s state of
sobriety or assuming a position in the vehicle unequipped with an available
seatbelt I would have found her comparative degree of fault was minimal.  Mr. Bottle
drove in a criminally dangerous manner, while intoxicated, and thus departed
dramatically from the relevant standard of care.  Ms. Gilbert, on the
other hand, failed to elicit information that would have protected her from the
terrible risk created by Mr. Bottle’s serious driving misconduct.  In
these circumstances, at most I would have assessed her contributory negligence
at 5%.

CAUSATION

[56]        
The parties agree that Ms. Gilbert suffered a traumatic brain
injury as a result of the accident.  They also agree that she suffered a
fractured clavicle, head laceration, and soft tissue injuries.  The issue for
determination is the extent to which her ongoing physical, mental and emotional
condition and associated level of function are caused by the accident, given her
pre-existing condition.  Put another way, the issue is whether there is a
substantial connection between the accident and Ms. Gilbert’s compromised physical,
mental and emotional state and associated loss.

The Law

[57]        
The plaintiff must establish that the defendant’s negligence caused or
materially contributed to an injury to justify compensation.  The burden of
proof is a balance of probabilities.  The defendant’s negligence need not be
the sole cause of the injury so long as it is part of the cause beyond the
range of de minimus.  The plaintiff is entitled to compensation for
negligent conduct proven to the requisite standard to be substantially
connected to his or her injury: Athey v. Leonati, [1996] 3 S.C.R. 458, paras. 13-17;
Resurfice Corp. v. Hanke, 2007 SCC 7, paras. 20-28.

[58]        
The general test for causation is the “but for” test:  “but for” the
defendant’s negligence would the plaintiff have suffered the injury?  In
exceptional circumstances, however, the “but for” test is unworkable and the
“material contribution” test may be applied.  There are two requirements for
its application: 1) for reasons outside of the plaintiff’s control it is
impossible to prove that the negligence caused the injury using the “but for”
test; and 2) the defendant breached a duty of care owed the plaintiff, thereby
exposing the plaintiff to an unreasonable risk of injury and the injury falls
within the ambit of the risk created: Resurfice Corp, paras. 24-28.

[59]        
In Farrant v. Laktin, 2011 BCCA 336, Neilson J.A. explained the
different senses in which the phrase “material contribution” was used by the
Supreme Court of Canada in Athey and in Resurfice Corp. At para. 10,
she stated:

10.       In Resurfice Corp. v. Hanke, 2007 SCC 7, 1
S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic
test for determining causation, but developed the concept of “material
contribution” in a different manner than that used in Athey, formulating
a “material contribution” test as an exception to the “but for” test, a matter
that is not relevant to this appeal.  The Court replaced the Athey
definition of “material contribution” to the plaintiff’s injury with the
concept of “a substantial connection” between the injury and the defendant’s
conduct.  These developments were usefully summarized by Mr. Justice
Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey
v. Leonati, is synonymous with “substantial connection”, as that phrase was
used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal
yardstick should not be confused with the “material contribution test”.  As
McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24-29,
the “material contribution test” applies as an exception to the “but for” test
of causation when it is impossible for the plaintiff to prove that the
defendant’s negligent conduct caused the plaintiff’s injury using the “but for”
test, where it is clear that the defendant breached a duty of care owed the
plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and
where the plaintiff’s injury falls within the ambit of the risk …

[60]        
The test for causation must not be confused with the rules for assessing
damages.  Causation must be established on a balance of probabilities before
damages are assessed.  As McLachlin, C.J.C. stated in Blackwater v. Plint,
[2005] 3 S.C.R. 3 at para. 78:

78.       It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort.  The rules of causation consider generally whether “but
for” the defendant’s acts, the plaintiff’s damages would have been incurred on
a balance of probabilities.  Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s damage, the defendant is fully liable for that damage.  The rules
of damages then consider what the original position of the plaintiff would have
been.  The governing principle is that the defendant need not put the plaintiff
in a better position than his original position and should not compensate the
plaintiff for any damages he would have suffered anyway: Athey …

[61]        
Where, as in this case, the plaintiff has suffered several sources of
trauma that fuse to create problems, untangling the different sources of damage
and loss is extremely challenging.  If the defendant’s negligence is a cause of
the damage, however, the plaintiff is entitled to compensation for the loss.  As
discussed below, the defendant must take the plaintiff as she is found which
may include an already damaged condition that affects the extent of the loss actually
suffered (the “thin skull rule”).  On the other hand, the defendant need not
compensate the plaintiff for the debilitating effects of other concurrent or
subsequent wrongful acts or contributory negligence that would have occurred in
any event (the “crumbling skull rule”): Blackwater, paras. 79-81.

[62]        
In some cases, causation is asserted based primarily on a temporal
relationship between the negligent conduct and the damage in question.  In White
v. Stonestreet, 2006 BCSC 801, Ehrcke J. commented on the need for close
scrutiny of the evidence in cases of this kind.  At paras. 74 and 75 he
stated:

74.       The inference from a temporal sequence to a causal
connection, however, is not always reliable.  In fact, this form of reasoning
so often results in false conclusions that logicians have given it a Latin
name.  It is sometimes referred to as the fallacy of post hoc ergo propter
hoc: “after this therefore because of this”.

75.       In searching for
causes, a temporal connection is sometimes the only thing to go on.  But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully.  Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[63]        
Cases involving psychological injuries may require particularly close
scrutiny from a causation perspective.  As Newbury J.A. noted in Sandegren
v. Hardy (1999), 67 B.C.L.R. (3d) 123, claims of debilitating pain that
persists long past a reasonable recovery period are notoriously difficult for
trial judges to assess.  Nevertheless, as a matter of law, psychological and
physical injuries are indistinguishable.  If the defendant’s negligence caused
psychological injury to the plaintiff that injury is fully compensable, even if
the plaintiff’s pre-existing psychological state rendered her unusually
vulnerable.

[64]        
In Yoshikawa v. Yoshikawa and Yu (1996), 21 B.C.L.R. (3d) 318,
Lambert J.A. summarised the principles to be applied in assessing claims
of psychological injury.  At paras. 12 and 13, he stated:

12.       It is important to understand what is established
and what is not established by the decision in Maslen v. Rubenstein.  I
propose to set out a number of principles extracted from the reasons of Mr. Justice
Taylor, for the Court, in the Maslen case.  The first point is a
preliminary point and appears in Maslen at p. 133 under the heading
“(a) The Background”:

1.              
The plaintiff must establish that the pain, discomfort or weakness is
“real” in the sense that the victim genuinely experiences it.

The remaining ten points are drawn from the part of the
reasons headed “(b) The Basic Principles” at pp. 134 to 137:

2.              
The plaintiff must establish that his or her psychological problems have
their cause in the defendant’s unlawful act.

3.              
The plaintiff’s psychological problems do not have their cause in the
defendant’s unlawful act if they arise from a desire on the plaintiff’s part
for such things as care, sympathy, relaxation or compensation.

4.              
The plaintiff’s psychological problems do not have their cause in the
defendant’s unlawful wrongful act if the plaintiff could be expected to
overcome them by his or her own inherent resources, or “will-power”.

5.              
If psychological problems exist, or continue, because the plaintiff for
some reason wishes to have them, or does not wish to end, their existence or
continuation must be said to have a subjective, or internal, cause. (NOTE: I
consider that this proposition must deal with the conscious mind, otherwise it
seems to me to beg the question; see my first observation, later in this Part
of these reasons.)

6.              
If a court could not say whether the plaintiff really desired to be free
of the psychological problems, the plaintiff would not have established his or
her case on the critical issue of causation.

7.              
Any question of mitigation, or failure to mitigate, arises only after
causation has been established.

8.              
It is not sufficient to ask whether a psychological condition such as
“chronic, benign pain syndrome” is “compensable”.  Such a psychological
condition may be compensable or it may not.  The identification of the symptoms
as “chronic benign pain syndrome” does not resolve the questions of legal
liability or the question of assessment of damages.

9.              
It is unlikely that medical practitioners can answer, as matters of
expert opinion, the ultimate questions on which these cases often turn.

10.           
Mr. Justice Spencer, at trial in the Maslen case, put the overall
test quite correctly in these words:

[C]hronic benign pain syndrome will
attract damages … where the plaintiff’s condition is caused by the defendant
and is not something within her control to prevent.  If it is true of a chronic
benign pain syndrome, then it will be true also of other psychologically-caused
suffering where the psychological mechanism, whatever it is, is beyond the
plaintiff’s power to control and was set in motion by the defendant’s fault.

11.       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
recovery period, but the plaintiff’s own evidence, if consistent with the
surrounding circumstances, may nevertheless suffice for the purpose.

…

13.       I am
sure Mr. Justice Taylor did not consider that the “basic” principles which
he set out exhausted all the possibilities for the application of principle to
the difficult problems in these cases.  The general principles which apply in
relation to causation in law will apply to psychological injury as they apply
to physical injury.

The Facts

Ms. Gilbert’s
Condition and Level of Function Before the Accident

[65]        
Ms. Gilbert was born on September 25, 1974 into a powerful First
Nations family.  Her father, Rick Gilbert, was Band Manager and Chief of the
Williams Lake Band during her childhood and youth.  Her mother, Margaret
Gilbert, was a community leader and co-founder of the New Directions program.  She
has one sister born of the same parents, as well as several half-siblings and
close cousins.  She was raised primarily on the Sugarcane Reserve.

[66]        
Like many of their contemporaries, Ms. Gilbert’s parents attended
residential school when they were children.  Their accomplishments in adult
life are all the more impressive taking into account the hardship they experienced
when they were young.  Despite their resilience, however, both struggled with
the aftermath of childhood trauma and deprivation.  Margaret Gilbert did not seriously
abuse alcohol but her emotional health and relationships with men were very troubled. 
Rick Gilbert abused alcohol until mid-life, when he stopped drinking, and his
12-year marriage to Margaret was marked by periodic separations.

[67]        
While she was growing up Ms. Gilbert sometimes lived with both of
her parents, her siblings and other children taken in by the family.  At other
times, she lived with one or the other parent or with extended family and close
friends.  According to her cousin, Elizabeth Coutlee, whose evidence I accept, the
Gilbert family home was a relatively privileged home environment and Ms. Gilbert
was obviously loved a great deal.

[68]        
Ms. Coutlee and two other cousins, Wilma Dick and Marlene Basil, described
Ms. Gilbert as a free spirit who was happy, fun-loving and social
throughout her childhood, adolescence and early adulthood.  I accept their
descriptions as sincere and generally accurate, but incomplete.

[69]        
Ms. Gilbert also states that she was well loved by her parents. 
She acknowledges, however, and I find, that she was often struck by her mother,
grandmother and siblings when she was a child and adolescent.  She described
physical punishment with objects such as a belt or kindling as “normal on the
reserve” and attributed her mother’s use of such disciplinary measures to her
experiences at residential school.  From Ms. Gilbert’s perspective, this
treatment was not physically abusive.  I cannot agree, but conclude that she
has come to terms with it by seeing it this way.  The physical punishment at
home stopped by the time Ms. Gilbert reached her mid-teens.

[70]        
Life on the Sugarcane Reserve was marked for many by extreme poverty,
hardship and a myriad of abuses.  As her counsel accurately put it, Ms. Gilbert
escaped much of the worst abuse and, in that sense, she was fortunate. 
Nevertheless, over the years she was exposed to considerable tragedy, including
the deaths of many intimates and physical violence in an early romantic
relationship.  She was also exposed to unwanted sexual contact from “drunken
men around my reserve”.  Her interpretation of those experiences is telling and
poignant.  While testifying about them Ms. Gilbert stated:  “I was lucky. 
It wasn’t severe … My friends got raped again and again and again.  I have
never been raped.”

[71]        
Not surprisingly, Ms. Gilbert often felt depressed, anxious and
angry about what was taking place in her life.  All things considered, she
could hardly have felt otherwise.

[72]        
Despite her often troubled and stressful environment, Ms. Gilbert
was popular, warm-hearted and influential amongst her peer group.  She had many
friends and socialised with them regularly, offering emotional support and
guidance to those less fortunate than herself.  By the time she was 12, like
many of her peers she began to use alcohol and smoke marijuana.  From that
point forward her life was affected adversely by substance abuse.

[73]        
The extent of Ms. Gilbert’s alcohol and drug use in adolescence and
early adulthood was a matter of considerable contention between the parties.  Ms. Gilbert
told Dr. Bishop, a neuropsychologist, that from age 12 onward she drank 10
beers every weekend evening and smoked marijuana daily, with increased alcohol
consumption and the addition of cocaine use by her 20s.  In cross-examination,
however, Ms. Gilbert testified that this estimate was “ridiculous”,
although she also said she tried to be truthful with Dr. Bishop.  Taking
into account her statement to Dr. Bishop, together with the other relevant
evidence, defence counsel submits that Ms. Gilbert’s alcohol and drug abuse
before the accident was extreme.

[74]        
Dr. Bishop’s impression was that Ms. Gilbert seemed almost proud
of the high levels of alcohol and drug consumption she reported in the course
of her interview.  I accept this impression as correct and find her statement
to Dr. Bishop was a flippant exaggeration.  Nevertheless, taking into
account all of the relevant evidence, including that of Ms. Dick, Ms. Basil
and Ms. Gilbert herself, I find that she consumed large quantities of
alcohol and marijuana throughout her teen years and early adulthood on a
regular basis.  By her 20s, she also used cocaine on occasion and, for a few
years, joined a boyfriend in abusing prescription medications such as Tylenol
3.  At no point, however, was she an extreme or utterly debilitated alcoholic
or drug addict.  In the colourful language of Phyllis Chelsea, she was not a “trooper”.

[75]        
Ms. Gilbert’s early drug and alcohol abuse undoubtedly contributed
to her poor academic performance and negative attitude toward schooling.  She attended
school full-time until Grade 8 and then withdrew for reasons related to both
truancy and fighting with schoolmates.  Prior to her withdrawal from school her
marks ranged from low to average and she struggled with math and reading.  Thereafter,
she enrolled in alternative programs but repeatedly withdrew without completing
further formal grade level requirements.  In her early 20s she enrolled in many
adult basic education courses, although she did not complete most of them.

[76]        
As a young adult, Ms. Gilbert lived a distinctly itinerant
lifestyle.  She enjoyed moving from place to place and did so throughout most
of her 20s.  An enthusiastic cook, she would sometimes perform cooking and
cleaning services in exchange for rent and food at the homes of family members
and friends.  She also did other sorts of short-term work such as tree
planting, cashiering and general labour.  At one point she worked in a daycare
for several months.  In 2003, she considered, but did not follow through with,
a course to become an aesthetician.

[77]        
As with school, Ms. Gilbert’s drug and alcohol abuse impacted
negatively upon her vocational performance.  She exhibited poor judgment, poor
planning and poor focus in her failure to engage with work in a consistently
productive way.  This failure was not, however, entirely unremitting.  As discussed
below, over the years Ms. Gilbert was able to work on a regular, albeit
part-time, basis assisting her mother and others with New Directions workshops.

[78]        
Unsurprisingly, given her circumstances, Ms. Gilbert had a
complicated medical and psychiatric history before the accident.  As noted, she
was often troubled by anxiety, anger and depression in response to painful life
experiences.  From 2001 onward she took diazepam and other medications to help
manage her emotions and assist with her sleep.  She also met briefly with a
counsellor and underwent an anger management program in connection with a
probation order.  She did not take anti-depressant medication, however, and I
find that her depression was episodic and reactive to frequent tragedy.  The
same is true of her periodic panic attacks.

[79]        
Ms. Gilbert’s substance abuse, on the other hand, was consistent
from her early adolescence onward.  As noted, while her substance abuse affected
her negatively it did not completely dominate her life.  I do not accept, as the
defence suggests, that Ms. Gilbert was regularly prone to violence or
aggression, although she engaged in physical conflicts in an early romantic
relationship.  I do accept that she was often anxious and inclined to behave
impulsively.

[80]        
I reach the foregoing conclusions based on all of the evidence, which was
complex and in some respects inconsistent.  For example, Ms. Gilbert
acknowledged that she had long-standing problems with anxiety, anger and
depression but disavowed prior statements that she had aggressive rages and was
constantly depressed.  The descriptions of Ms. Gilbert’s family members
and New Directions co-workers are inconsistent with the view that she was a
chronically angry, aggressive, depressed woman overwhelmed by alcohol and drug
addiction.  The same is true of her single conviction for impaired driving.

[81]        
Ms. Gilbert’s history with her long-term general practitioner, Dr. Bannerman,
was also inconsistent with a picture of such a woman.  Although it is true that
Dr. Bannerman treated her for emotional complaints over the years, it is
also true that those complaints arose in response to significant situational
stressors.  For example, in 2003 Dr. Bannerman treated Ms. Gilbert
for acute depression in connection with the deaths of five family members that
occurred within a two-month period.  Not surprisingly, she felt unable to work
or sleep and requested medical assistance.  She did not, however, attend upon Dr. Bannerman
routinely seeking medical treatment for her mental health regardless of what
was happening in her life at the time.

[82]        
In addition to her periodic mental health concerns, Ms. Gilbert
struggled with several physical health challenges.  She suffered from asthma
and diabetes, which was poorly controlled, and, in 1999, experienced a
frightening episode of necrotizing fasciitis under her arm.  In 2003, Ms. Gilbert
also experienced numbness in her feet in connection with her diabetes and acknowledged
to health care providers that she often forgot to take her diabetes control
medication.  In 2000, she fell and hurt her low back and on two or three occasions
thereafter experienced transient but severe low back pain.  She also had
surgery to correct a problem with her jaw.

[83]        
In 2002, Ms. Gilbert obtained a note from Dr. Bannerman to the
effect that she was unable to work as a tree planter because of low back pain. 
Before the accident, however, Dr. Bannerman did not think it necessary to
send her for X-rays in response to her complaints of transient back pain.  Taking
into account Ms. Gilbert’s evidence together with that of Dr. Bannerman,
I am satisfied that her transient back pain was not a significant or disabling
physical challenge for Ms. Gilbert before the accident.  Like substance
abuse, however, poor control of diabetes was a regular factor that impacted
negatively upon her general health and quality of life.

[84]        
Although Ms. Gilbert’s life before the accident was plainly difficult,
it also held real and deep satisfactions.  High amongst them is her sense of
pride in and connection to her First Nations heritage.  As a youth she was active
and accomplished in many cultural activities including drumming, singing and “fancy
dancing”, a form of traditional native dance that requires strength, focus and
dedication.  Ms. Gilbert was very committed and very good.  She and her
mother created the elaborate regalia that she wore and she travelled the
province as a successful competitive fancy dancer.  At the age of 12, she was
crowned the Sugarcane Princess.

[85]        
Ms. Gilbert stopped competitive fancy dancing in her early teens
shortly after she began to abuse alcohol and drugs.  The physical demands of
fancy dancing were hard on her ankles and legs, which contributed to her decision
to stop.  I conclude that her motivation and focus also diminished once she
began to consume alcohol and drugs regularly.  She did, however, continue to
enjoy music and singing throughout her adolescence and early adulthood.  She
did not engage in other hobbies or sports.

[86]        
In addition to participating in cultural activities, Ms. Gilbert
became involved at an early age in the New Directions program.  New Directions
was co-founded by her mother and Phyllis Chelsea, an extraordinary First
Nations woman who, amongst other achievements, was awarded an Honorary
Doctorate of Laws and the Order of British Columbia.  Like Margaret Gilbert,
Phyllis Chelsea attended residential school as a child and, in consequence,
suffered greatly.  At the age of 29, however, she overcame alcohol addiction
and embarked on a life of community service.

[87]        
From the age of 12 onward, Ms. Gilbert joined Margaret Gilbert,
Phyllis Chelsea, and other impressive First Nations women, including Julie
Antoine and Rosalee Zabatel, in delivering New Directions programs in various locations
across Western Canada.  New Directions offers five day workshops in personal
healing, growth and development.  The program addresses a wide range of topics
such as historical abuse, family dynamics and anger management in a First
Nations cultural context.  In her teen years Ms. Gilbert participated in
New Directions as a youth trainer.  In her 20s she was responsible for the music
component of the program, although she also interacted with workshop
participants and provided them with encouragement, guidance and support.

[88]        
The frequency with which Ms. Gilbert worked with New Directions
prior to the accident is difficult to determine with precision.  Record keeping
was incomplete and, because income was largely generated on reserves, tax
records are not available to assist.  Taking into account all of the available
evidence, particularly that of Margaret Gilbert, I am satisfied that in the two
years preceding the accident Ms. Gilbert participated in approximately six
or seven New Directions workshops per year.  She was typically paid
approximately $1,000 per five-day workshop.  Her earnings from other forms of
part-time work were minimal.  She also received social assistance benefits from
time to time in unspecified amounts.

[89]        
One of the most common issues addressed in New Directions workshops is
substance abuse.  For this reason, and others, it is imperative that presenters
(known as trainers) abstain completely from alcohol and drug use, at least
while the workshop is going on.  Ms. Gilbert testified that she did so
without fail whenever she worked as a New Directions trainer because of her
respect for the program and commitment to workshop participants.  Taking into
account the evidence of her mother, Ms. Chelsea, Ms. Antoine and Ms. Zabatel,
all of whom observed and praised her pre-accident New Directions performance, I
accept her testimony on this important point.

[90]        
I conclude that, although she often abused alcohol and drugs in other
contexts, Ms. Gilbert was able to exert sufficient self control to abstain
for purposes of her part-time work.

[91]        
I also conclude that her work with New Directions was a source of deep
satisfaction for Ms. Gilbert, and she was good at it.  Margaret Gilbert, Ms. Chelsea,
Ms. Antoine and Ms. Zabatel all described her positive attitude,
strong interpersonal skills and energetic engagement at workshops.  Ms. Gilbert
testified to similar effect.

[92]        
It was apparent to Ms. Antoine that Margaret Gilbert was grooming
her daughter to take on greater responsibility within the New Directions
program.  Ms. Gilbert and her mother confirmed that this was the long
range plan.  With advancing age and family commitments, Margaret Gilbert wished
to reduce her own role in the program and hoped to increase that of her daughter. 
Nevertheless, I infer that she understood Ms. Gilbert’s existing lifestyle
and habits limited her to part-time participation.  I also infer that Margaret
Gilbert accommodated her daughter’s limitations to a greater extent than would
an unrelated employer.

[93]        
Despite the foregoing, I am satisfied that Ms. Gilbert’s plan for
increased future participation in New Directions had real potential.  I am also
satisfied that it could only be realised if she joined the others in abstaining
completely from the consumption of alcohol and drugs.  Ms. Gilbert’s
itinerant, borderline lifestyle was significantly related to her ongoing abuse
of substances.  When living in this manner, she did not and could not display
the necessary focus, organisation and persistence required for full-time work.

[94]        
Prior to the accident, Ms. Gilbert made no serious attempt to stop
consuming alcohol and drugs completely.  As noted, however, she did abuse pain
medication for a period in her 20s and then she stopped.  She was also able to
avoid substance abuse when she worked with New Directions because she was
strongly motivated and committed to the program.  Taking into account her history
of determined effort with fancy dancing, an activity of interest and aptitude, and
her periodic control of substance abuse, I conclude that Ms. Gilbert had
the capacity to stop abusing substances if and when she chose seriously to try.

[95]        
In sum, Ms. Gilbert’s physical, mental and emotional condition and functioning
before the accident involved a complex blend of strengths, limits and
vulnerabilities.   Her strong connection to family, social network and cultural
engagement helped Ms. Gilbert develop a measure of resilience and optimism
despite the tragedy and hardship that surrounded and beset her.  At the same
time, the tragedy and hardship took a toll.  Her minimal education, frequent substance
abuse and physical and emotional problems impeded Ms. Gilbert’s life, but did
not rob it of all quality or promise.  On the contrary, she experienced life as
often satisfying, as well as hard, and contributed to the lives of others in
her orbit.

The Accident

[96]        
As noted, Ms. Gilbert recalls events leading up to the accident but
is unable to recall its occurrence.  Immediately after the accident Mr. Bottle
found her lying on the ground beneath the vehicle, apparently snoring.  An
ambulance was dispatched to the scene and arrived within minutes of the
accident’s occurrence.  Mr. Bottle fled when he heard sirens and did not,
therefore, report his observations to the ambulance crew.

[97]        
The Glasgow Coma score is a scale for the assessment of consciousness. 
According to the ambulance crew report, Ms. Gilbert had a Glasgow Coma
score of 10 at 8:50 p.m.  Based on the crew report and Mr. Bottle’s
evidence, I conclude that Ms. Gilbert lost consciousness due to the head
injury she sustained in the accident.  Given that she was an experienced
drinker and her blood alcohol level was 29 mmol/L at 9:50 p.m., I also
conclude that alcohol consumption did not play a significant role in either her
loss of consciousness or post-traumatic amnesia.

[98]        
Ms. Gilbert was transported by ambulance to the Cariboo Memorial
Hospital.  She was admitted at approximately 9:15 p.m.  By 10:09 p.m. her Glasgow
Coma score had risen to 14 and by 7:00 a.m. the next morning it was 15, which
is a normal score.

[99]        
X-rays of Ms. Gilbert’s chest, skull and left clavicle were taken
at the hospital, but a CT scan was not performed.  Her head laceration was
stapled and she first received pain medication at 1:10 a.m.  She was discharged
into her mother’s care later in the day on March 9, 2005.

[100]     Ms. Gilbert
recalls almost nothing of her stay in hospital.  She has only patchy
recollections of what occurred over the course of the next few weeks.

Ms. Gilbert’s
Condition and Level of Function After the Accident

[101]     Ms. Gilbert
moved into her mother’s home following her discharge from hospital.  She
experienced severe pain throughout her body due to her injuries and slept in a
chair for awhile because she was unable to lie down.  According to Margaret
Gilbert, Ms. Gilbert was up and around again with assistance within about two
weeks of the accident.  It took about another month, however, before she was
able to take care of herself.

[102]     Although Ms. Gilbert’s
recollection is hazy, it is clear from Dr. Bannerman’s evidence, as well
as her own memories, that Ms. Gilbert suffered widespread pain throughout
her body in the immediate aftermath of the accident.  This pain included jaw
pain, shoulder, back and leg pain, headaches, dizziness and memory loss. 
On March 20, 2005 she reinjured her shoulder by walking into a wall.  Within months,
her head laceration and fractured clavicle had healed and her physical pain and
memory loss improved somewhat.  She testified, however, that within a year she
reached a plateau and her physical, mental and emotional health has remained
compromised ever since.

[103]     According
to Ms. Gilbert, her physical, mental and emotional state has changed
significantly since the accident, as has her level of function.  For example,
she says that whereas she was outgoing, empathic and socially attuned before
the accident, afterwards she became irritable, forgetful and emotionally disconnected. 
Her transient states of depression and panic attacks were replaced by constant
sadness, inappropriate rages and difficulties with memory, focus and
concentration.  She also suffers from pain throughout her body, including daily
headaches, shoulder, neck and back pain radiating into her legs, and tingling
in her extremities.  As a result of her pain, her sleep is poor and her energy
level is low.

[104]     Ms. Gilbert
claims that she has tried to work, socialise and move forward, but her efforts
have been largely unsuccessful.  She says she is always physically
uncomfortable, anxious and tired.  She also cannot connect emotionally with others
and worries she will hurt them with her aggressive temper outbursts.  As a
result of one such outburst she is now facing criminal charges of assault.

[105]     Ms. Gilbert
goes on to say that she is embarrassed by her inability to recognise
acquaintances, including former New Directions participants.  She is also
embarrassed by her frequent failure to remember past experiences with close
friends.  As a result of her changed condition, she says she increased her
already high level of alcohol consumption for a time after the accident.  More
recently, she has taken to dulling the pain with crack cocaine.  She now spends
most of her time in self-imposed isolation and avoids Williams Lake.

[106]     Defence
counsel challenges Ms. Gilbert’s description of a significant change in
her physical, mental and emotional condition and level of function.  He
emphasizes that she abused drugs and alcohol before the accident and has always
suffered poorly controlled physical and emotional problems that impair her
ability to function well.  He notes that Ms. Gilbert was able to complete
the Culinary Arts course in 2006 and continued cooking and cleaning for family
members and friends after the accident.  He also notes that her itinerant
lifestyle has continued much as before, as has the seemingly endless series of personal
tragedies that cause her to suffer emotionally.

[107]     In defence
counsel’s submission, Ms. Gilbert’s condition before and after the
accident must be viewed from a functional perspective.  Assessed in this way,
he submits that her physical, mental and emotional condition is substantially
unchanged.

[108]     Although I
agree that Ms. Gilbert’s functioning is the appropriate focus of inquiry, I
do not accept defence counsel’s submission.  Rather, I find that Ms. Gilbert’s
physical, mental and emotional condition have changed significantly since the
accident, as has her level of function.  As she claims, Ms. Gilbert is no
longer the social, free-spirited woman she was before the accident.  Instead, she
has become irritable, forgetful and emotionally labile and her limited ability
to focus and concentrate has deteriorated considerably.  She has also become isolative,
prone to aggression and socially distant and inept.  In addition, she now suffers
from frequent headaches and chronic neck, shoulder and back pain.

[109]     I further
conclude that Ms. Gilbert’s headaches and body pain limit her ability to
cook and clean as well as she did before the accident.  They also interfere
with her mood and her sleep.  Most significantly, Ms. Gilbert is no longer
able to work with New Directions due to her forgetfulness, irritability and increased
emotional disturbance.  This change has led to a substantial deterioration in
the overall quality of her life.

[110]     Ms. Gilbert
continues to indulge in regular substance abuse, as she did before the accident. 
Her consumption pattern, however, has also undergone a significant and troubling
change.  As noted, her alcohol intake increased and then abated after the
accident.  Unfortunately, her substance of choice has recently become crack
cocaine.

[111]     Ms. Gilbert
continues to socialise with others on occasion.  I accept, however, that she does
not connect with them well and often behaves in an inappropriate manner.  Although
she continues to cook and clean, she tires easily and finds it difficult and
unsatisfying.  When she works in the kitchen, she now cleans dishes and arranges
towels in a compulsive way.

[112]     Ms. Gilbert
is also less able to cope emotionally with the tragic deaths of intimates that have
continued with dreadful regularity since the accident.  In 2008, for example, she
experienced emotional flatness and extreme anxiety in connection with the deaths
of several friends and two former romantic partners.  As a result, she was
briefly hospitalised.  I find, however, that these distressing post-accident
deaths did not alter her overall level of function in any long-lasting way.

[113]     The foregoing
picture emerges from Ms. Gilbert’s testimony and that of her family,
friends, and Dr. Bannerman.  It is also consistent with the opinion
evidence provided by experts who generally relied upon Ms. Gilbert’s account
of a post-accident physical, mental and emotional change in her functioning.  Although
it is unnecessary to identify all of the evidence that supports these findings,
its most salient features are summarised below.

[114]     Margaret
Gilbert noticed a significant change in her daughter immediately following the
accident.  Whereas beforehand she says Ms. Gilbert was bubbly and affectionate,
afterwards she became short-tempered and emotionally disconnected.  She also
became quiet, forgetful and prone to repeating herself.  Although Margaret
tried to speak with her daughter clearly, Ms. Gilbert often misunderstood
and would lash out in uncharacteristic anger.  Within a year, Margaret no longer
felt comfortable in her home and asked her to move out. Since then they have
stayed in touch but Ms. Gilbert’s communications are curt and
goal-directed, not caring and intimate as they were before.

[115]     After the
accident Ms. Gilbert joined her mother and others in presenting three New
Directions workshops.  Her performance at all three was distinctly different and
unsatisfactory.  Ms. Gilbert played the wrong music, needed reminders and
failed to engage emotionally with workshop participants.  In 2009, in response
to her concerns and those of others, Margaret Gilbert decided that her daughter
could not continue to work as a trainer unless and until her mental and
emotional state improves.

[116]     I accept
Margaret’s Gilbert’s description of Ms. Gilbert’s changed condition and behaviour. 
In addition to its consistency with Ms. Gilbert’s own account, it is
consistent with many observations made by other family members.  For example, Ms. Coutlee,
with whom Ms. Gilbert lived from September, 2009 to September, 2010, said she
often retreated within herself, became more easily frustrated and seemed less
happy than she was before the accident.  Ms. Basil, with whom she
currently lives, remarked that since the accident Ms. Gilbert has a noticeably
shorter fuse, is forgetful and tends to isolate.

[117]     Importantly,
the observations of Ms. Gilbert’s family members are consistent with those
made by others to whom she is not related.  For example, Julie Antoine, who
knows her only through work, was struck by her moodiness, lack of energy and
emotional disconnection at a New Directions workshop.  As a result of this
change, she asked Margaret Gilbert not to bring her to workshops anymore.  Margaret
Gilbert testified that Ms. Antoine asked her to stop bringing Ms. Gilbert
to New Directions workshops after the accident occurred.

[118]     When she
testified, Ms. Antoine expressed confusion about the workshop at which she
noticed Ms. Gilbert’s changed performance.  Under cross-examination she
said it was at a workshop held in Kamloops.  Other evidence revealed that the
Kamloops workshop took place before, not after, the accident.  Not surprisingly,
defence counsel submits that, for this reason, Ms. Antoine’s testimony
does not corroborate Ms. Gilbert’s claim of a post-accident behavioural change.

[119]     I conclude
that Ms. Antoine was mistaken in her testimony on cross-examination about the
workshop at which she noticed Ms. Gilbert’s changed performance.  I do so based
on Margaret Gilbert’s recollection that Ms. Antoine asked her to stop
bringing Ms. Gilbert after the accident, not before.  Margaret Gilbert was
attuned to the accident’s occurrence and its effect upon her daughter.  Ms. Antoine
was not and had no reason to focus on the workshop at which she noticed the
change.  In addition, Ms. Antoine participated in her last workshop with Ms. Gilbert
well after the accident and made her observations near the end of her New
Directions tenure.  On balance, I am satisfied that Ms. Antoine noticed a
change in Ms. Gilbert at a workshop conducted after the accident.

[120]     Ms. Antoine
was not the only non-family member who noticed a change in Ms. Gilbert
after the accident.  In 2009, her sister, Rosalie Zabatel, worked at the last
New Directions workshop in which Ms. Gilbert was ever involved.  Ms. Zabatel’s
evidence was helpful and compelling.  It supported Ms. Gilbert’s
description of her changed condition and its negative impact upon her work.

[121]     Like Ms. Antoine,
Ms. Zabatel knew Ms. Gilbert only from working with her in New
Directions.  In Ms. Zabatel’s case most of that work took place in the
1980s, when Ms. Gilbert worked as a youth trainer.  In 2009, however, she
accompanied Ms. Gilbert and her mother to a New Directions workshop in
Manitoba.  Although she did not know about the accident it was immediately
obvious to her that Ms. Gilbert was not the same person she had known
years before.

[122]     Ms. Zabatel
noticed that Ms. Gilbert was short-tempered and seemed to lack feelings. 
She also noticed that she had to repeat herself several times before Ms. Gilbert
appeared to understand.  Ms. Zabatel has a brother who suffers from brain
damage.  Ms. Gilbert reminded her of her brother.  By the end of the week,
Ms. Zabatel felt worn down from spending time with her.  When she got home,
she called Ms. Antoine and remarked that Ms. Gilbert had “lost her
marbles”.

[123]     Ms. Gilbert
attended at Dr. Bannerman’s office with many complaints in the year
following the accident.  They included headache, double vision, dizziness,
memory and thinking problems, as well as shoulder and back pain radiating down
her legs, leg numbness and increased emotional lability.  In December, 2005 Dr. Bannerman
referred her for spinal X-rays, which showed early degenerative changes but no
evidence of fracture or dislocation.  In January, 2006 she referred her to a
neurologist, who diagnosed persistent polymyalgias and arthralgias.  He
recommended medication for pain and for sleep.

[124]     Dr. Bannerman
encouraged Ms. Gilbert to walk, exercise and lose weight after the
accident.  She also prescribed medication for her diabetes, diazepam for her
emotions, and analgesics for her pain.  In addition, Dr. Bannerman recommended
that Ms. Gilbert attend for physiotherapy.

[125]     Ms. Gilbert
did not follow all of Dr. Bannerman’s recommendations.  In particular, she
did not attend for physiotherapy to help address her physical complaints and
associated pain.  At trial, she claimed her failure to do so was related to her
intense post-accident dislike of being touched by others.  I am not persuaded,
however, that this is the primary explanation.

[126]     I accept
that, as she claims, Ms. Gilbert became less comfortable with physical
contact after the accident.  That discomfort impacted various areas of her
life, including sexual desire.  Nevertheless, she was able and willing to
engage in sexual contact with a boyfriend after the accident, albeit in a less
than satisfying manner.  In these circumstances, I conclude that, standing
alone, her post-accident dislike of physical contact did not prevent her from
attending for physiotherapy.

[127]     I find
that Ms. Gilbert’s pre-accident tendency not to attend appropriately to
her health care needs continued after the accident.  This tendency was
exacerbated by her increased mental disorganization, poor self-monitoring and
inclination to isolate.  Her failure to follow up on Dr. Bannerman’s
recommendation with respect to physiotherapy was primarily associated with this
increased, but pre-existing, pattern of behaviour.  Her dislike of physical
contact also contributed, but only minimally.  Her failure to manage her
diabetes continued and increased.

[128]     Ms. Gilbert
did lose some weight after the accident.  The extent of her weight loss is
unclear, however, and she remains significantly overweight.  She did not
exercise as Dr. Bannerman recommended because she found it too painful
when she attempted to do so.  Eventually, she simply gave up.

[129]     In 2006 Ms. Gilbert
decided to take a five-month Culinary Arts course at Thompson River
University.  Her goal was to move forward with her life and become a
professional chef.  In order to register she needed a medical form from Dr. Bannerman
confirming that she was physically and mentally fit for the course, which form Dr. Bannerman
provided.  On it, she referenced Ms. Gilbert’s history of depression but
expressed the view that she was cured and without physical or psychological
limits.

[130]     Dr. Bannerman
was cross-examined thoroughly in connection with the medical form and its
contents.  She testified that she believed Ms. Gilbert was sufficiently physically
and mentally fit to take the Culinary Arts program and had improved since the
accident.  She went on to say, however, that in 2006 she did not believe Ms. Gilbert
was fully recovered from her injuries.  She also said that she wished to
support Ms. Gilbert in her efforts to improve her life.

[131]     I accept Dr. Bannerman’s
explanation of her views and intentions with respect to the medical form in
question.  She was presenting her patient in the best possible light in a
supportive effort to assist her when she signed the form.  She knew, however,
that Ms. Gilbert continued to struggle with a range of physical, mental and
emotional problems.

[132]     Dr. Bannerman’s
confidence in Ms. Gilbert proved to be well-founded.  She was able to
complete the Culinary Arts course, which represented her highest academic
achievement to that point in her life.  She testified, however, that she found
the course physically and mentally exhausting and was able to get through only
because she sat down frequently and received a lot of help from the other
students.  Taking into account the evidence of her instructor, Kim Judd, I
accept that this is true.

[133]     Ms. Judd
was a strikingly fair, balanced and objective witness.  Although she did
not corroborate all aspects of Ms. Gilbert’s testimony, her account did
not conflict significantly with much of what she had to say.  Rather, Ms. Judd’s
perspective and impressions differed somewhat from those of Ms. Gilbert,
as did her focus and the extent of her recollection.  Overall, however, it
generally fit with Ms. Gilbert’s own description of her experience at the
Culinary Arts course.

[134]     Ms. Judd
confirmed that Ms. Gilbert attended class regularly, showed no sign of
substance abuse and got along well with other students.  She described Ms. Gilbert
as a quiet, average student who kept to herself and seemed to start out
determined but “fizzled” as time passed.  She did not notice Ms. Gilbert sit
down frequently, exhibit signs of physical discomfort or receive help from
others, but she was busy and did not spend much time observing her students. 
She also did not notice Ms. Gilbert display anger, but did see her display
frustration and difficulty in connection with computer testing.  Ms. Judd
testified, and I accept, that Ms. Gilbert’s practical work in the course
was good but she clearly found the theory challenging.

[135]     After Ms. Gilbert
finished the Culinary Arts program she left Williams Lake and resumed her
pre-accident pattern of living with friends and relatives throughout the
province.  She did not seek or obtain work as a professional chef because she
did not feel able to manage the physical or mental demands of the job.  She
did, however, cook and clean for family and friends in exchange for room and
board.

[136]     Ms. Coutlee
and Ms. Basil confirmed that Ms. Gilbert has provided them with
household assistance, including cooking and cleaning, when they lived together. 
It was clear, however, that they placed minimal demands upon her due to her obviously
compromised physical and mental state.  I am satisfied that these arrangements,
while somewhat mutually beneficial, were largely a matter of family support.  I
am also satisfied that Ms. Gilbert correctly assessed her own inability to
manage the demands of work as a professional chef.

[137]     Although a
CT scan of Ms. Gilbert’s head was not obtained immediately after the
accident, on January 17, 2008 an MRI scan was performed at St. Paul’s Hospital
in Vancouver.  It showed three separate foci of hemorrhagic shear injury in the
right frontal, left parietal and left thalamus areas of Ms. Gilbert’s
brain, with each measuring 3 mm in size.  Each is consistent with hemosiderin
deposition which is in turn consistent with the effects of a traumatic brain
injury.

[138]     In July,
2008 Ms. Gilbert met with John Millard, the Executive Director of the
Cheshire Homes Society of British Columbia (“CHSBC”).  CHSBC provides a range
of programs for individuals who have suffered a brain injury, including a
residential rehabilitation program.  Mr. Millard assessed Ms. Gilbert
as suitable for placement in a CHSBC residential program.  She could not
attend, however, because she could not afford the fees.

[139]     Ms. Gilbert
has not sought or received other counselling or structured support since the
accident beyond her brief crisis hospitalisation in 2008.  Although she has
previously remarked that she had no desire to seek counselling, I accept her
trial testimony that she is now prepared to do so.  I conclude that her recent
willingness is the product of slowly developing insight into the full nature and
implications of her post-accident condition.  Its slow development is not
something that Ms. Gilbert could control.

Expert Evidence

[140]     Ms. Gilbert
was assessed by many experts who expressed a range of opinion on the diagnosis,
prognosis and cause of her ongoing physical, mental and emotional problems. 
All agreed that her case is very complex from a causation perspective because
of her compromised pre-accident condition and questionable reliability as an historian. 
All agreed that a reliable pre-accident and post-accident history is a central
factor for assessing causation.

[141]     Although the
experts accepted that Ms. Gilbert suffered a traumatic brain injury,
fractured clavicle and multiple soft tissue injuries, they disagreed on the
extent to which those injuries inform her current presentation.  The
differences were based primarily on whether the expert in question assumed there
was a significant change in her cognitive and executive function, emotional
state, physical complaints and associated behaviour after the accident, as
reported or at all.  The experts also disagreed on whether Ms. Gilbert’s
traumatic brain injury is properly categorised as mild or moderate.

[142]     A considerable
body of evidence concerning traumatic brain injury and chronic pain disorder, generally
and specifically regarding Ms. Gilbert, was presented.  In simplified
form, the key elements of these conditions established by the general evidence are
summarised below.  The experts’ differing opinions on how they apply in Ms. Gilbert’s
case are also summarised, as are the experts’ views on the impact of her
injuries and appropriate treatment recommendations.   The summaries of expert
evidence are followed by my conclusions on causation, analysis of the duty to
mitigate and assessment of damages.

Traumatic
Brain Injury

[143]     A
traumatic brain injury is an insult to the brain that may cause organic change
and brain disruption.  Such injuries are typically categorised as mild,
moderate or severe.  According to Dr. Nairn Stewart, a physiatrist, the frontal
lobe of the brain is the area most vulnerable to traumatic injury.

[144]     The
categorisation of a traumatic brain injury is relevant to but not determinative
of its likely outcome.  As Dr. Prout, a neurologist, explained, the higher
the categorisation the more likely it is that there will be significant ongoing
sequelae.  According to Dr. Smith, a psychiatrist, the most common
cognitive sequelae following a brain injury are difficulties with processing
speed, attention and memory.  According to Dr. Bishop, executive function difficulties
such as low frustration tolerance, emotional lability, poor initiation, poor
organization and poor judgment are also commonly associated with trauma to the
brain.

[145]     The
frontal lobe of the brain controls executive functioning.  Executive functioning
involves the use of cognitive processes and skills effectively and appropriately
in the course of daily living.  The experts all agreed that frontal lobe damage
can compromise an individual’s ability to use his or her cognitive processes
and skills in an effective and appropriate manner.  For this reason,
personality change, emotional disturbance and behavioural problems are
sometimes experienced following a traumatic brain injury.

[146]     Psychometric
tests measure aspects of an individual’s cognitive and psychological function. 
For example, tests of attention, memory, intellect, mood and personality may be
administered and objective scores obtained.  Neuropsychologists and others
interpret the test results within the larger context, including the individual’s
pre and post injury social, educational, vocational and medical history.  Standing
alone, however, such testing does not reveal the cause of an identified decrement.

[147]     In some cases
it is difficult to isolate the cause of problematic symptoms and behaviours
following a traumatic brain injury.   This is true in part because symptoms of
traumatic brain injury may overlap with psychiatric or other symptoms.  For
example, memory problems following a brain injury may be caused by frontal lobe
damage or by distractibility associated with chronic pain or emotional
dysregulation.  In addition, symptoms such as emotional flatness or numbing may
be caused by a brain injury, depression or extreme stress.

[148]     To
complicate matters further, substance abuse may produce problems similar to
those caused by traumatic brain injury.  For example, memory loss, poor
motivation and emotional dysregulation may also be associated with chronic
substance abuse.  In addition, substance abuse is itself a risk for brain
injured individuals. As noted by Dr. Travalos, a physiatrist, reduced
inhibition and increased impulsivity caused by traumatic brain injury may
accelerate or accentuate alcohol and drug abuse.

[149]     Individuals
who experience a mild traumatic brain injury usually recover fully in three to
six months, although the recovery period may be prolonged by pre-existing
vulnerabilities.  In approximately 10% of cases, however, mild traumatic brain
injury victims continue to suffer from significant ongoing symptoms.  When the
brain injury is moderate the likelihood of ongoing symptoms is increased.

[150]     According
to Dr. Wilkinson, a neuropsychologist, if a mild traumatic brain injury is
“complicated” the functional recovery pattern is more like that of a moderate
traumatic brain injury.  According to Dr. Prout, the typical pattern of
recovery from brain injury symptoms is a period of improvement for several
months, followed by a plateau.

[151]     Factors
for consideration in classifying the severity of a traumatic brain injury include
the individual’s Glasgow Coma score and degree of pre and post traumatic
amnesia.  Dr. Prout testified, and I accept, that the presence of imaged
brain lesions does not change the classification of the injury from mild to
moderate.  It does, however, place an otherwise mild traumatic brain injury
into the complicated category.

[152]     In this case,
Ms. Gilbert participated in psychometric testing with Dr. Bishop and Dr. Wilkinson
as part of their neuropsychological assessments.  Test results showed low
average verbally-mediated skills with average reasoning capacity.  They also
showed variable attentional capacity, distractibility, above average nonverbal
reasoning, weak verbal memory, strong visual learning and variable
visual-spatial and visual perceptual capacity.  Ms. Gilbert was anxious,
spoke slowly and seemed fatigued during much of the testing process, but she gave
good effort and the results she produced were valid.

[153]     Ms. Gilbert
also participated in clinical interviews with the experts who assessed her.  Although
some of the detail of what she told them varied, she made it clear to all that
her pre-accident life included considerable stress and trauma, as well as
prodigious substance abuse.  The experts also reviewed a range of pre and post
accident records, such as those of Dr. Bannerman, Ms. Gilbert’s
school records, the MRI report and other written materials.  Dr. Bishop
conducted a collateral interview of Margaret Gilbert as well.

[154]     Dr. Bishop
assumed Margaret Gilbert’s description of a significant change in Ms. Gilbert’s
neurobehavioral functioning after the accident was generally accurate.  She
noted the complexity of separating out problems caused by substance abuse and
pre-existing emotional and behavioural difficulties from those caused by the
traumatic brain injury.  Nevertheless, Dr. Bishop concluded that Ms. Gilbert
suffered moderate trauma to the brain with at least moderate sequelae as a
result of the accident.  In her view, Ms. Gilbert’s pre-existing emotional
and neurobehavioural problems such as poor judgment, poor insight and impulsivity
were exacerbated by her traumatic brain injury.

[155]     Dr. Bishop
classified Ms. Gilbert’s brain injury as moderate based on her loss of
consciousness and the MRI findings, together with the reports of increased
post-accident problems such as memory loss, poor concentration and low
frustration tolerance.  She noted that all of these reported problems are
consistent with a blow to the head.  Dr. Bishop also opined that Ms. Gilbert’s
recovery from the traumatic brain injury had plateaued and her cognitive
functioning was impacted negatively by chronic pain as well by the damage to
her brain.

[156]     Dr. Wilkinson
did not share Dr. Bishop’s opinion on the classification of Ms. Gilbert’s
traumatic brain injury or its likely ongoing sequelae.  In her view, the injury
met the criteria for a complicated mild traumatic brain injury, not a moderate
traumatic brain injury.  She also opined that Ms. Gilbert suffered no loss
of cognitive ability as a result of the accident.  She went on to say that her
current executive function difficulties all pre-existed the injury and were not
causally connected to it.

[157]     Like Dr. Bishop,
Dr. Wilkinson expressed the view that Ms. Gilbert’s brain was
probably affected negatively by substance abuse prior to the accident.  For
this reason it was vulnerable to the effects of the brain trauma, which
probably lasted longer than would ordinarily be expected.  Although she could
not be definitive, Dr. Wilkinson indicated that Ms. Gilbert likely suffered
cognitive symptoms caused solely by brain trauma for something in the range of six
months after the accident.  Thereafter, in her view, her recovery was
confounded by other problems such as pain, fatigue and ingestion of medication. 
She attributed symptoms such as emotional numbing to the many other traumas in Ms. Gilbert’s
life.

[158]     Dr. Prout
agreed with Dr. Wilkinson that Ms. Gilbert likely suffered from a
complicated mild traumatic brain injury.  He accepted that she experienced related
problems with cognitive function shortly after the accident, but expressed the
view that when he assessed her in 2008 she was cognitively intact.  In his
opinion, any subjective cognitive complaints Ms. Gilbert continued to
experience were likely the result of pain, poor sleep, substance abuse and
psychological difficulties, not her traumatic brain injury.  For example, he
associated her slow speech with depression and her memory loss with distractibility
caused by pain.

[159]     Dr. Anderson
and Dr. Smith are both psychiatrists.  The focus of their assessments was,
therefore, Ms. Gilbert’s emotional and psychiatric complaints.
Nevertheless, both expressed views on the classification of her traumatic brain
injury and associated cognitive and neurobehavioral functioning.  In Dr. Anderson’s
view, given the MRI findings, Ms. Gilbert suffered at least a moderate
traumatic brain injury.  In Dr. Smith’s view, she suffered somewhere
between a mild and moderate traumatic brain injury.

[160]     Like Dr. Bishop,
Dr. Anderson assumed Ms. Gilbert’s account of a significant post
accident change in her personality, mood and neurobehavioral functioning was
generally accurate.  Like Dr. Wilkinson, by and large, Dr. Smith did
not.  Unsurprisingly, given this difference in underlying assumptions, the two
psychiatrists reached different conclusions on the extent to which Ms. Gilbert’s
brain injury had ongoing sequelae.  Dr. Anderson concluded that her
pre-existing personality, mood and neurobehavioral problems were markedly
exacerbated by the traumatic brain injury.  Dr. Smith concluded that,
other than possible compulsive kitchen cleaning, Ms. Gilbert’s ongoing
problems were all pre-existing and probably unrelated to the accident.

[161]     Dr. Nairn
Stewart and Dr. Travalos are both physiatrists, expert in the field of
physical medicine and rehabilitation.  They, too, expressed opinions on the
classification of Ms. Gilbert’s traumatic brain injury and its effects.  Dr. Nairn
Stewart described her brain injury as falling within the mild to moderate
classification.  Dr. Travalos described it as more of a mild than a
moderate head injury.

[162]     Dr. Nairn
Stewart characterised Ms. Gilbert’s brain injury as her most significant accident-related
injury.  She accepted as accurate the reported changes in her personality and
functioning and emphasized that her cognitive and emotional difficulties are
“absolutely characteristic of frontal lobe brain injury”.  She went on to note
that Ms. Gilbert exhibited inappropriate anger, loud laughter and apparently
unconscious self-contradiction in the course of her assessment.  In her
opinion, Ms. Gilbert’s brain injury creates considerable risk and
difficulty with regard to her general health and rehabilitation.

[163]      Dr. Travalos
opined that Ms. Gilbert’s cognitive, emotional and behavioural problems
are multifactorial in nature.  In his view, there is no doubt that her symptoms
of dizziness, cognitive complaints and to some extent irritability over time
were in part related to her head injury.  He went on to say that chronic pain and
sleep problems compounded her clinical picture and cognition, as did her
pre-existing emotional and substance abuse problems.  He also remarked that Ms. Gilbert’s
ongoing headache pain may be post-concussive in origin.

Chronic
Pain Disorder, Depression and Anxiety

[164]     Physical
illness or injury may cause an individual to perceive pain, which may, in turn,
contribute to psychiatric symptoms such as depression and anxiety.  Conversely,
symptoms of depression and anxiety may also increase pain perception and negatively
affect an individual’s ability to cope with pain.  The same is true of chronic sleep
deprivation.  When pain endures for six months or longer, becomes the
predominant focus of an individual’s presentation and is severe enough that
clinical attention is required a diagnosis of chronic pain disorder is
warranted.

[165]     Chronic
pain disorder causes significant impairment in social, occupational or other
important areas of functioning.  According to Dr. Anderson, psychological
factors play a significant role in the onset, severity, exacerbation or
maintenance of the pain.  Although the pain perceived is not produced
exclusively by physical factors, it is also not produced intentionally or
feigned by the individual.   The most appropriate treatment for chronic pain is
a multidisciplinary approach that addresses both the physical and emotional
factors that are at play.

[166]     Dr. Anderson
described Ms. Gilbert as an emotionally vulnerable person who had
difficulty coping with life stressors prior to the accident.  After its
occurrence, in his view, she developed a chronic pain disorder.  Her physical
pain reduced her already compromised coping ability and contributed to her
ongoing cognitive and emotional difficulties, which may be further compromised
by her abuse of substances.  Although she did not develop posttraumatic stress
disorder as a result of the accident, she experienced increased anxiety.  She
also suffered from a major depressive disorder for a time and continues to
suffer from significant and related depressive symptoms.

[167]     Dr. Smith
agreed that Ms. Gilbert was emotionally vulnerable prior to the accident. 
He also agreed that she did not develop posttraumatic stress disorder in its
aftermath.  In his view, however, none of her ongoing cognitive or emotional
difficulties are attributable to the injuries she suffered in the accident,
with the possible exception of mild obsessive compulsive symptoms caused by her
brain injury.  He described these symptoms, which involve compulsive cleaning,
as innocuous and even a positive social attribute.

[168]     As noted, in
Dr. Nairn Stewart’s opinion Ms. Gilbert’s most significant
accident-related injury was her frontal lobe brain damage.  She also commented,
however, on Ms. Gilbert’s physical state and experience of pain.  Dr. Nairn
Stewart acknowledged Ms. Gilbert’s pre-accident diabetes and asthma, but
described her, inaccurately, as well before with accident “with none of her current
problems”.  On physical examination, she noted some decreased range of motion
in Ms. Gilbert’s neck and shoulders, full range of motion in both hips and
full rotation in the mid-back.  She associated Ms. Gilbert’s daily
headaches with her ongoing neck pain.

[169]     Dr. Travalos
remarked on Ms. Gilbert’s pre-accident history of low back pain and
emotional difficulties.  He acknowledged, however, that the early records do
not describe or explain the vast array of symptoms that she now presents.  He
went on to say that her substance abuse, sleep problems and profound
deconditioning contribute negatively to her general wellbeing.  In his view, Ms. Gilbert’s
deconditioned stated is a major factor in her current physical, mental and
emotional presentation.

[170]     Dr. Gouws
is an occupational health physician.  He assessed Ms. Gilbert’s fitness to
work.  In the course of so doing he took a history and conducted a physical
examination, in which he noted tenderness and reduced rotation of the cervical
spine.  Dr. Gouws diagnosed widespread myofascial pain related to soft
tissue injuries and cervicogenic headaches.  Like Dr. Travalos, he
remarked on Ms. Gilbert’s pre-existing problems and seriously
deconditioned state.

[171]     Dr. Prout
also conducted a physical examination.  He recorded multiple areas of
myofascial tenderness in the neck and back, but noted the absence of objective
signs such as muscle spasm.  Like many other experts, Dr. Prout associated
Ms. Gilbert’s headaches with her soft tissue neck and back injuries.  He
also described her occasional and slight feelings of dizziness as a residual
symptom of the effects of the accident.

Vocational
Impact of Injuries

[172]     The
experts disagreed on the extent, if any, to which Ms. Gilbert’s injuries
impact upon her vocational capacity.  The division was based primarily on
whether the expert in question accepted that her level of vocational function
before and after the accident did or did not undergo a significant change.  For
present purposes, it is unnecessary to review each of these opinions in
detail.  Aspects of the most pertinent are summarised below.

[173]     Dr. Gouws
explained that understanding an individual’s baseline pre-accident vocational
performance is critical to assessing the extent of any post-accident loss of capacity. 
In formulating his opinion, he assumed that, despite her many challenges,
before the accident Ms. Gilbert was able to work successfully with New
Directions on a part time basis for approximately 14 years.  He acknowledged
that, in so doing, Ms. Gilbert was operating in a sheltered work
environment.  Nevertheless, he concluded that but for the accident she would have
continued with that work and due to its occurrence she could not.

[174]     Richard
Carlin is a vocational rehabilitation consultant.  In conducting his
assessment, he interviewed Ms. Gilbert, reviewed medical reports and
administered a battery of vocational tests.  Taking into account that body of
information, Mr. Carlin concluded that, given her post-accident condition,
Ms. Gilbert is probably incapable of working in the labour market at a competitive
level.

[175]     Mr. Carlin
also commented on Ms. Gilbert’s pre-accident condition from a vocational
perspective.  In so doing, he noted the multifaceted benefits of her New Directions
work and stated the workshops allowed her to experience and heal her own wounds
at the same time she was helping participants.  He went on to state:

From a vocational rehabilitation
perspective, I am of the opinion that Ms. Gilbert was likely receiving
significant support in her own life by participating in these workshop presentations. 
Through helping participants live with the painful events in their lives, Ms. Gilbert
gained meaning and purpose in her own life.

[176]     Dr. Travalos
expressed the view that Ms. Gilbert is capable of working in an
appropriately structured and controlled environment, but is not competitively
employable.  In his opinion, her limitations include prolonged immobility or
prolonged sitting and any work she undertakes should not be mentally taxing.  In
comparing Ms. Gilbert’s pre-accident and post-accident functioning in
connection with her work at New Directions, Dr. Travalos stated:

If one assumes that the level of
functioning was borderline previously and now is slightly worse than that, then
this could certainly impact on her longevity of the work.  If she had started
out with a fairly good level of capacity then the head injury may have reduced
her level of function but not impacted on her ability to do her work.  Ms. Gilbert
described to me that she was fired by her mother for an inability to do the work. 
It would appear, therefore, that the accident was just enough to reduce her
pre-accident level of ability to one that was no longer functional within the
non-competitive and controlled environment with which she was working prior to
the accident.

Treatment
and Prognosis

[177]     The
experts all agree that Ms. Gilbert would benefit from a wide range of
therapies regardless of the cause of her currently compromised condition.  For
example, she would benefit from substance abuse, pain management and other
forms of counselling, medication, a structured living environment and a
stringent supervised exercise program.  They also agree that the absence of
such interventions to date has negatively affected her recovery.

[178]     According
to Dr. Nairn Stewart, given the passage of time since the accident Ms. Gilbert
will likely continue to experience her current physical, cognitive, emotional
and behavioural problems over the long term.  In her view, she will probably
remain competitively unemployable because of these problems and need long term
support, as recommended by an occupational therapist.  In addition, Ms. Gilbert’s
cognitive and executive function deficits will make rehabilitation efforts and
provision for her needs unusually difficult.  Nevertheless, in Dr. Nairn
Stewart’s view, such efforts should be made.

[179]     Drs. Bishop,
Anderson and Gouws and Richard Carlin all expressed similar views to those of
Dr. Nairn Stewart.

[180]     Tracy
Berry is an occupational therapist.  She met with and assessed Ms. Gilbert
in June, 2010 when she was living in Ms. Coutlee’s home.  Like several other
experts, Ms. Berry interviewed Ms. Gilbert, reviewed medical reports
and obtained collateral information, in this case from Ms. Coutlee, who
answered “caregiver questions”.  She based her recommendations for future care
on the assumption that the reports and information provided were factually
accurate.  She also assumed that family and friends would not continue to
provide Ms. Gilbert with shelter and care in the future.

[181]     In Ms. Berry’s
opinion Ms. Gilbert does not possess the cognitive skills to live
independently.  She also holds the view that Ms. Gilbert likely would not have
required specialized intervention to learn independent living skills before the
accident.  Given her post-accident condition, Ms. Berry recommends the
provision of a supported living environment, drug and alcohol treatment and a
multidisciplinary pain clinic.  She also recommends structured activity to help
address chronic pain management and emotional regulation, together with
medication, homemaking support and financial management assistance.

[182]     Dr. Travalos
agrees with Drs. Nairn Stewart, Bishop, Anderson and Gouws that Ms. Gilbert’s
long term prognosis is poor but that rehabilitative efforts are nevertheless
appropriate.  In his view, the window of opportunity for physical, mental and
emotional improvement is closing, but it is not yet entirely shut.  In his
opinion time-limited, goal-oriented and structured interventions may improve Ms. Gilbert’s
overall clinical presentation and general wellbeing in the future.  Depending
on their outcome, her lower than normal life expectancy may be extended and the
quality of her life may be enhanced.

[183]     Drs. Smith
and Wilkinson concur with the pessimistic view of Ms. Gilbert’s future
prognosis expressed by the other experts.  Dr. Smith also opined that her
life expectancy is lower than normal, due in large measure to her substance
abuse and poorly controlled diabetes.  Dr. Travalos also indicated that
these were significant factors in connection with Ms. Gilbert’s lower than
normal life expectancy.  He identified her substantial deconditioning and high
blood pressure as additional contributing factors.

[184]     Defence
counsel sought to introduce an expert medical opinion specifically concerning Ms. Gilbert’s
life expectancy in purported response to the report of Robert Carson, an
economist.  Mr. Carson’s report included various factual assumptions with
respect to Ms. Gilbert’s possible life expectancy.  I ruled the opinion evidence
put forward by the defence was not admissible because it was not truly
responsive to the Carson report.

[185]     Mr. Carson
did not purport to express an opinion on Ms. Gilbert’s actual life
expectancy.  Rather, he provided calculations in accordance with factual
assumptions provided to him by her counsel.  The weight of Mr. Carson’s
evidence is affected by the extent to which those assumptions are otherwise established. 
Their inclusion in his report, however, does not render them an expert opinion
to which responsive expert opinion may be adduced.

[186]     Given the
foregoing ruling, there was no evidence presented regarding the precise extent
of Ms. Gilbert’s reduced life expectancy.  As referenced above, however, opinions
from Drs. Travalos and Smith were admitted to the general effect that her life
expectancy is lower than normal.

Discussion

[187]     As
previously noted, counsel for Ms. Gilbert submits that she suffered a moderate
traumatic brain injury in the accident which caused significant and permanent
sequelae.  These include memory impairment, decreased concentration, low
frustration tolerance, diminished organisational capacity and obsessive
compulsive behaviour.  In addition, he says she suffered soft tissue injuries
in her neck, shoulder and back which led to chronic pain and daily headaches. 
According to her counsel, as a result of her injuries Ms. Gilbert’s
pre-existing problems with alcohol, drugs and emotions were significantly exacerbated. 
In consequence, she can no longer function as effectively as before in a personal,
social or vocational sense.

[188]     As also noted,
defence counsel disputes Ms. Gilbert’s claim of a significant change in
her cognitive, emotional and behavioural functioning.  Based on this position,
he submits she has not established that “but for” the accident her ongoing
problems would be any different.  Given Ms. Gilbert’s pre-existing condition
and post-accident stressors, he says that, beyond the initial recovery stage,
she is in the same functional position that she was in before the accident.  All
things considered, he submits there is no causal link between Ms. Gilbert’s
injuries and her ongoing physical, mental and emotional difficulties and complaints.

[189]     I have
accepted that Ms. Gilbert’s cognitive, emotional and behavioural condition
and functioning are significantly different than they were before the
accident.  My findings in this regard are set out in detail above and need not
be repeated here. I also accept that there is a substantial connection between
the defendants’ negligence and these changes.  Given Ms. Gilbert’s pre-existing
condition that negligence is not the only source of the damage.  For purposes
of establishing causation, however, it is only necessary that the negligence is
a cause of the damage.  Accordingly, Ms. Gilbert has met the
requisite burden of proof and is entitled to compensation for her associated loss.

[190]     I conclude
that Ms. Gilbert suffered a complicated mild traumatic brain injury with significant
and permanent sequelae as a result of the accident.  This finding is based on
the following factors:

1.              
Ms. Gilbert lost consciousness for at least 20 minutes after the
accident and experienced posttraumatic amnesia for over a day.  The posttraumatic
amnesia period includes several hours prior to her first receipt of pain
medication at 1:10 a.m. on March 9, 2005.

2.              
Ms. Gilbert’s brain was vulnerable to injury due to her pre-existing
and long-standing pattern of significant substance abuse.

3.              
Ms. Gilbert’s increased post-accident problems with cognitive
processes, including poor memory and focus, executive function and associated personality
change, are characteristic of frontal lobe brain injury.

4.              
There is a strong temporal relationship between Ms. Gilbert’s increased
cognitive and executive function problems and the accident in that the
increased problems appeared immediately after its occurrence and have persisted
ever since.

5.              
Ms. Gilbert’s increased problems with cognitive function improved
for a time, then plateaued, in a pattern typical of partial recovery from brain
injury symptoms.

6.              
The MRI findings show organic change to Ms. Gilbert’s brain, which,
given her presentation, I am satisfied was caused by the accident.

7.              
There is no plausible alternate explanation for the constellation of
altered cognitive, executive function and emotional compromises consistently displayed
by Ms. Gilbert since the accident.

[191]     I also
conclude that the change in Ms. Gilbert’s substance abuse pattern is substantially
connected to her brain injury symptoms.  Dulling physical and emotional pain with
crack cocaine shows markedly poor judgment and poor self-control.  Ms. Gilbert’s
already inadequate functioning in these areas has been further compromised by
her injuries.  In consequence, her substance abuse problem has altered in a
significantly negative way.

[192]     As noted,
I am satisfied that the tragedies Ms. Gilbert experienced after the
accident had no lasting impact on her overall level of function.  Her
pre-accident life was also filled with tragedy, but those sad events did not
render her forgetful, aggressive or emotionally numb, nor did they stop her
from working with New Directions.

[193]     Taking
into account my findings as to Ms. Gilbert’s altered pre-accident and
post-accident condition and functioning I prefer the opinions of Drs. Bishop,
Anderson and Nairn Stewart to those of Drs. Wilkinson, Smith and Prout on
causation regarding Ms. Gilbert’s traumatic brain injury.  This is so
because the hypotheses upon which the former rest more closely align with the
facts established on the evidence.

[194]     As is
apparent from the foregoing, I agree with Dr. Travalos’ view that Ms. Gilbert’s
ongoing cognitive, emotional and neurobehavioural problems are multifactorial in
nature.  I also agree that her increased problems in these realms are related,
at least in part, to her head injury.  I accept that Ms. Gilbert’s cognitive,
executive function and emotional problems are also compounded by chronic pain
and sleep deprivation.  I find, however, that her problems in areas such as
memory loss, low frustration tolerance and poor concentration are primarily
connected with her traumatic brain injury.

[195]     I further
conclude that Ms. Gilbert suffers from chronic pain disorder as a result
of the accident.  The pain includes frequent neck, shoulder and back pain,
together with cervicogenic headaches which originate from soft tissue injuries
to her neck.  I am satisfied that her pain is genuine in the sense that it is not
feigned or goal-directed, although it has a significant psychological, as well
as physical, component.  In particular, Ms. Gilbert’s pre-existing
emotional vulnerability and increased emotional disturbance caused by her brain
injury are both substantially connected to the severity and maintenance of her
ongoing pain.  The onset of the pain is a result of the accident.

[196]     As with
her brain injury symptoms, there is strong temporal relationship between Ms. Gilbert’s
chronic pain and the accident.  Her headaches, neck and shoulder pain began
immediately thereafter and her back pain became a consistent, not transient,
feature of her life.  As Dr. Travalos points out, while Ms. Gilbert
was not particularly healthy before the accident she did not present the vast
array of physical complaints she has presented ever since its occurrence.  This
is true despite the fact that she has long been overweight, deconditioned and emotionally
troubled, and her diabetes has long been poorly controlled.

[197]     I find
that the tingling in Ms. Gilbert’s extremities is probably caused by her
diabetes and not her accident-related injuries.  I am, however, satisfied that
her pre-existing health problems do not otherwise explain her chronic pain
complaints, nor do any post-accident events.  Although it is true that Ms. Gilbert
does not exhibit objective signs such as muscle spasm, she does demonstrate
decreased range of motion in the neck and shoulder areas and her psychological
condition has deteriorated significantly.  All things considered, I am
satisfied on balance that but for the accident Ms. Gilbert would not be
suffering from widespread chronic pain.

[198]     The extent
of Ms. Gilbert’s loss due to her accident-related injuries is substantial.
She is, in my view, a thin skull plaintiff.  Before the accident, she lived a
borderline existence due to her harsh environment, disorganized lifestyle and
poor general health and habits.  As Dr. Travalos points out, however, she was
nonetheless able to work with New Directions.  She was also able to participate
in and enjoy intimate personal connections.

[199]     As a
result of the accident, Ms. Gilbert can no longer do either.  In effect, she has
lost the two major sources of pleasure, purpose and meaning in an already difficult
life.

[200]     Ms. Gilbert
is and will probably remain competitively unemployable due to the effects of
her traumatic brain injury.  Although her post-accident functional change is more
substantial than Dr. Travalos assumed, I accept his view that her injuries
tipped her over the edge in a vocational sense.  I also accept that Ms. Gilbert’s
quality of life may improve with appropriate support and treatment.  I am
satisfied, however, that, even with support, she will probably never work for
pay again.

DAMAGES

DUTY TO MITIGATE

The Law

[201]     The
plaintiff has a positive duty to mitigate by taking all reasonable measures to
reduce loss and damages caused by the defendant’s negligence.  This duty
includes an obligation to undertake reasonably available treatment that would
assist in alleviating or curing his or her injuries.  The principle of
mitigation is based on the general proposition that a defendant should not be
held liable for loss and damages the plaintiff could have reasonably avoided: Janiak
v. Ippolito, [1985] 1 S.C.R. 146; Danicek v. Alexander Holburn Beaudin
& Lang, 2010 BCSC 1111.

[202]     Once a
plaintiff has established that the defendant is liable for causing his or her
injuries, the burden of proof shifts to the defendant.  To succeed on a
mitigation defence, the defence must prove that the plaintiff acted
unreasonably and reasonable conduct would have reduced or eliminated the loss. 
Whether the plaintiff acted reasonably is a factual question.  Its answer
depends on consideration of all of the surrounding circumstances: Byron v.
Larson, 2004 ABCA 398.

[203]     A relevant
circumstance in cases such as this is the plaintiff’s personality and condition
before and after the accident.  The law does not require a plaintiff to do that
which cannot be controlled, nor does it require perfection in the pursuit of
rehabilitation.  In addition, the defendant must take the victim as found,
which may affect what is to be reasonably expected.  For example, a person who
has struggled with life-long obesity may not be expected to lose substantial weight
to discharge the duty to mitigate, even though weight loss would assist
recovery.  What the law requires is that the plaintiff makes contextually reasonable
and sincere efforts to limit his or her damages and loss: Qiao v. Buckley,
2008 BCSC 1782; Antoniali v. Massey, 2008 BCSC 1085.

Discussion

[204]     Defence
counsel submits that Ms. Gilbert failed to mitigate her loss by exercising
regularly and attending for physiotherapy and counselling.  Had she done so, he
says any accident-related exacerbation of her physical and emotional problems would
have been limited.  According to defence counsel, given Dr. Bannerman’s
recommendations with respect to these matters the plaintiff ought reasonably to
have undertaken them.  She did not, and her damages should be correspondingly
reduced.

[205]     Counsel
for Ms. Gilbert responds that she cannot be faulted for failing to follow Dr. Bannerman’s
recommendations given her personal circumstances and injuries.  Her increased
problems with executive function made it impossible for her to organise and
attend appointments, particularly as she did not have a stable home.  In
addition, her aversion to being touched interferes with her willingness to
undertake physiotherapy.  Further, her attempt to participate in a residential
brain injury program with Cheshire Homes in 2008 was frustrated by an inability
to secure funding.

[206]     Counsel
goes on to say that, in any event, the evidence fails to establish Ms. Gilbert
would have improved functionally had she undertaken physiotherapy and
counselling.  He further submits that, in contrast, the evidence does establish
she took reasonable steps to mitigate her loss by trying to return to
remunerative work.  Those efforts included attending the Culinary Arts program
and participating in three post-accident New Directions workshops. 
Unfortunately, while sincerely made, they were unsuccessful due to the effects
of Ms. Gilbert’s injuries.

[207]     I agree
with Ms. Gilbert’s counsel and conclude she has not failed to mitigate her
damages.  While I do not accept that her living arrangements since the accident
have been any less stable than before, I do accept that she is more mentally
disorganised and her already poor self-care habits have deteriorated
considerably.  This deterioration contributed materially to Ms. Gilbert’s
failure to follow Dr. Bannerman’s recommendations in connection with
physiotherapy, exercise and counselling, as did her pre-existing personality
and condition.  Her accident-related, uncontrollable lack of insight into her
need for treatment also contributed.  In addition, her inability to afford programs
such as Cheshire Homes means that such treatment was not reasonably available
to Ms. Gilbert.

[208]     I also
conclude that Ms. Gilbert took reasonable steps to mitigate her loss in connection
with employment, despite her compromised condition.  The Culinary Arts program
was difficult for her, but she persisted and was just able to pass.  This
does not mean, however, that she has been able to work as a professional chef
since the accident.  On the contrary, I am satisfied that, for reasons beyond
her control, she has not.

[209]     The
Culinary Arts program environment was sheltered and Ms. Gilbert was
regularly supported by her fellow students in fulfilling its requirements.  Her
post-accident efforts to cook and clean for family and friends were also marked
by shelter and support.  I am, however, satisfied that Ms. Gilbert’s
chronic pain and mental disorganisation make it impossible for her to work in
an unsheltered employment environment such as a restaurant or work camp.  As
previously noted, I am also satisfied that she is no longer able to work with
New Directions or a comparable program in any capacity.

Non-Pecuniary Damages

[210]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities.  The compensation awarded should be
fair and reasonable to both parties.  For purposes of assessment, fairness is
measured against awards made in comparable cases.  Each case is, however,
unique and fact-driven.  For this reason, other cases can serve only as a rough
guide: Trites v. Penner, 2010 BCSC 882.

[211]     An award
of non-pecuniary damages compensates the plaintiff for losses suffered up to
the trial date and into the future.  Common factors for consideration include
the plaintiff’s age, the nature of the injuries, the severity and duration of
pain and disability, relationship impairment, and loss of life style.  A
functional approach to quantification is appropriate and damages are to be assessed
in light of the plaintiff’s individual circumstances.  A clear appreciation of
his or her loss and need for solace is the key: Dikey v. Samieian, 2008
BCSC 604.

[212]     Counsel
for Ms. Gilbert submits that the appropriate range for non-pecuniary
damages in this case is between $200,000 and $250,000.  He seeks an award in
the middle of that range.  He emphasizes that Ms. Gilbert is permanently
unemployable and has suffered a great deal because she can no longer work with
New Directions.  He also emphasizes the painful nature of her loss of close
relationships and realistic hopes for a better future.

[213]     In support
of his submission, counsel for Ms. Gilbert relies upon Young v.
Anderson, 2008 BCSC 1306; Adamson v. Charity, 2007 BCSC 671; Hodgins
v. Street, 2009 BCSC 673; and Danicek v. Alexander Holburn Beaudin &
Lang, 2010 BCSC 1111.

[214]     In Young,
the 51-year-old plaintiff suffered a mild traumatic brain injury, as well as
other serious injuries.  As a result, he experienced, amongst other problems,
chronic pain, depression and a cognitive disorder.  The court awarded $200,000
in non-pecuniary damages.

[215]     In Adamson,
the 42-year-old plaintiff also suffered chronic pain, depression and a range of
symptoms related to a mild traumatic brain injury.  As a result, he was rendered
competitively unemployable for the remainder of his life.  The court awarded
$200,000 in non-pecuniary damages.

[216]     In Hodgins,
the 16-year-old plaintiff suffered a traumatic brain injury, together with
other injuries.  As in this case, her ongoing symptoms were produced by an
interaction of organic factors from the brain injury and psychological factors
in a psychologically vulnerable person.  She was significantly functionally
disabled as a result of her injuries, although she could work at 50% capacity. 
Non-pecuniary damages were assessed at $220,000 and reduced by $30,000 based on
a finding that she was a “crumbling skull” plaintiff.

[217]     In Danicek,
the 32-year-old plaintiff suffered a mild traumatic brain injury, soft tissue
injuries and chronic headaches.  Her life was profoundly affected by these
injuries, particularly in connection with her work.  The court awarded $185,000
in non-pecuniary damages.

[218]     Defence
counsel submits that the appropriate range for non-pecuniary damages is between
$50,000 and $95,000.  This submission is based on the position that Ms. Gilbert
suffered cognitive deficits and pain due to her injuries for a time after the
accident, but her ongoing condition has not been significantly or permanently changed.
In support of his submission, defence counsel relies upon Dial v. Grewal,
2010 BCSC 759; Sedor v. Snider (December 14, 1999) New Westminster
Registry S029844; and Pham-Fraser v. Smith, 2010 BCSC 322.

[219]     The cases defence
counsel relies upon involve soft tissue injuries, headaches and emotional
complaints, but not traumatic brain injuries with permanent sequelae.  As a
result, I do not find them helpful given the factual findings that I have made. 
In contrast, while different in some respects, the Adamson and Hodgins
cases are somewhat comparable to this case.  I look to those authorities as
a rough guide to the appropriate range of non-pecuniary damages awards.

[220]     I conclude
that an award of $200,000 in non-pecuniary damages is appropriate in all of the
circumstances.  Ms. Gilbert’s permanent loss of capacity to work and
engage emotionally with others is a great loss given their central significance
in her difficult life.  In my view, Ms. Gilbert’s consequent need for
solace is also great.  Nevertheless, she is entitled to compensation for only the
change to her original position.  The award should not extend to her pre-existing
difficulties that would have persisted or deteriorated further regardless of her
injuries.  In other words, the award must be fair and reasonable to both parties.

[221]     As noted, Ms. Gilbert
was often anxious, depressed and self-defeating in her habits and lifestyle
before the accident.  Her most serious pre-existing problem was with substance abuse
and its wide-spread impact upon her life.  As also noted, however, Ms. Gilbert
had the capacity to abstain from consuming substances had she chosen to do so. 
As discussed below, I am satisfied that she likely would have made that choice in
time and her substance abuse problem would eventually have resolved.

[222]     The
foregoing are all aspects of Ms. Gilbert’s original position.  The
$200,000 awarded for non-pecuniary damages is intended to take them all into
account.

Past Loss of Earning
Capacity

[223]     The
plaintiff is entitled to compensation for loss of the value of work he or she
would have performed but could not perform because of accident-related
injuries.  Depending on the circumstances, evidence of that value may take many
forms.  For example, in some cases actual earnings that the plaintiff would
have received, but did not, may evidence the value of his or her lost earning
capacity.  In others, an assessment of reduced company profits or the
replacement cost of unperformed tasks may be the best measure of the loss. 
The key point is that compensation for past loss of earning capacity is to be
based on what the plaintiff would have, not could have, earned but for the
injury that was sustained:  Rowe v. Bobell Express Ltd., 2005 BCCA 141;
M.B. v. British Columbia, 2003 SCC 53.

[224]     The burden
of proof of actual past events is a balance of probabilities.  Where the
plaintiff’s claim for past loss of earning capacity depends on proof of past
hypothetical events, however, a different standard will apply.  Once liability
and causation have been established on a balance of probabilities, past
hypothetical events that were a real and substantial possibility must be
considered and taken into account.  Such events are to be given weight
according to the relative likelihood that they would have occurred: Smith
v. Knudsen, 2004 BCCA 613; Danicek.

[225]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231
a plaintiff is entitled to recover damages for only his or her past net income
loss.  This means that in the ordinary course the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin
(2003), 9 B.C.L.R. (4th) 324.  In a case involving a status Indian who earned
income on a reserve, however, no income tax on earnings would have been payable. 
That being so, in such cases a deduction for income tax is not appropriate: Moses
v. Kim, 2007 BCSC 1388.  Social assistance benefits received are deductible
from a past income loss award: M.B.

[226]     Counsel
for Ms. Gilbert seeks an award of $65,000 for her past loss of earning
capacity.  In his submission, but for the accident Ms. Gilbert would have
continued working with New Directions and eventually gone on to run a
comparable program of her own.  In addition, there is a real and substantial possibility
that she would have earned supplementary income through work in the food or
some other industry.  As a rough measure, he submits that a past loss of $1,000
per month from the date of the accident to the first date of trial is
appropriate.  He also submits that most, if not all, of that income would have
been earned on reserve and, therefore, there should be no deduction for income
tax.

[227]     Defence
counsel responds that, at most, the evidence establishes Ms. Gilbert lost
the value of three missed New Directions workshops in 2005.  In 2006, however,
she was enrolled in the Culinary Arts Program and would not have earned New
Directions income during that time.  Thereafter, she participated in three
further New Directions workshops.  Since then, he says the evidence does not
indicate there were many more New Directions workshops in which Ms. Gilbert
could have participated, but did not.  It does indicate, however, that she received
an unspecified amount of periodic social assistance benefits.

[228]     I conclude
that, but for the accident, Ms. Gilbert would likely have continued her pre-accident
earning pattern throughout the pre-trial period.  This does not mean, however,
that her pre-accident earning pattern was necessarily permanent.  On the
contrary, I am satisfied that Ms. Gilbert probably would have overcome her
substance abuse problem and her income earning capacity would have improved significantly. 
Taking into account her circumstances, however, I find that such a change was not
a real and substantial possibility until Ms. Gilbert reached her mid to
late 30s, particularly given the emotional traumas she experienced in 2008.

[229]     I do not
accept the defence contention that there was limited work with New Directions
available to Ms. Gilbert during the pre-trial period regardless of her
condition.   Although records were limited and testimony on the point vague, it
was abundantly clear that the program is in high demand and I am satisfied many
workshops probably were, or could have been, conducted between 2005 and 2010. 
While it is true that Margaret Gilbert is aging and has begun to withdraw from
New Directions, the program can also be delivered by other qualified trainers. 
Ms. Gilbert was held in high regard by all concerned and, but for the
accident, could have worked well with any of them in delivering New Directions
or a comparable program.

[230]     I accept
that Ms. Gilbert probably would have enrolled in the Culinary Arts program
in 2006 regardless of the accident’s occurrence.  She has long enjoyed cooking
and sometimes supplemented her New Directions work with other short-term forms
of employment.  That being so, there is a real and substantial possibility that
she would have added modestly to her New Directions earnings with additional
employment earnings, some of which would probably not have been taxable.  I do
not accept, however, that there is a realistic possibility she would have
sought and maintained regular remunerative work in the food industry, or
elsewhere, during the pre-trial period.  This is so because her substance abuse
and related borderline lifestyle would likely have continued as before.

[231]     Taking
into account all of the foregoing, I assess Ms. Gilbert’s past loss of
earning capacity at $36,000.  This figure is based on the view that, but for
the accident, Ms. Gilbert would have probably have earned something in the
range of $5,000 in 2005, $3,000 in 2006, $6,000 in 2007, 2008, and 2009, and
$5,000 in 2010 from New Directions and approximately $5,000 in additional,
non-taxable earnings.

Loss of Future Earning
Capacity

[232]     A claim
for loss of future earning capacity requires the court to gaze into a crystal
ball with respect to the future, a notoriously difficult undertaking.  It raises
two key questions:  1) has the plaintiff’s earning capacity been impaired by
his or her injuries? and, if so 2) what compensation should be awarded for the resulting
financial harm that will accrue over time?  The loss is to be quantified by assessment
based on the evidence, not application of a purely mathematical calculation.  The
appropriate means of assessment will vary from case to case: Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett. v. Pett, 2009 BCCA
232.

[233]     In Perren
v. Lalari, 2010 BCCA 140, Garson J.A. identified the two approaches to assessment
of loss of future earning capacity commonly adopted by courts in British
Columbia.  One is the “earnings approach” described in Pallos; the other
is the “capital asset approach” described in Brown.  The earnings approach
involves a form of math-oriented methodology such as i) postulating a minimum
annual income loss for the plaintiff’s remaining years of work, multiplying the
annual projected loss by the number of remaining years and calculating a
present value or ii) awarding the plaintiff’s entire annual income for a year
or two.  The capital asset approach involves considering factors such as i) whether
the plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) is less marketable or attractive as a potential
employee; iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and iv) is less valuable to herself as a
person capable of earning income in a competitive labour market.

[234]     Garson
J.A. stated in Perren that both approaches are correct and will be more
or less appropriate depending on whether the loss in question can be quantified
in a measurable way.  She went on to consider several related case authorities
and stated:

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

1.              
A future or hypothetical possibility will be taken into consideration as
long as it is a real and substantial possibility and not mere speculation [Athey
at para. 27], and

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

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

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.

[235]     In Reilly
v. Lynn, 2003 BCCA 49, the principles that apply to assessing loss of
future earning capacity were comprehensively summarized.  Low J.A. stated as
follows in this regard:

[101]    The relevant principles
may be briefly summarized.  The standard of proof in relation to future events
is simple probability, not the balance of probabilities, and hypothetical
events are to be given weight according to their relative likelihood: Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 27.  A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133
at 135 (C.A.).  The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.).  However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA
1 at para.11; Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.). 
Moreover, the task of the Court is to assess the losses, not to calculate them
mathematically: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of future events
is unknown, allowance must be made for the contingency that the assumptions
upon which the award is based may prove to be wrong: Milina v. Bartsch,
supra at 79 …

[236]     Relevant
contingencies for consideration may be general or specific in nature.  Such
contingencies include, for example, the potential for improvement in health,
opportunities for advancement, loss of employment and the usual chances and
hazards of life.  The contingency allowance will typically be modest.  It
should be based upon the evidence and a healthy dose of common sense: Trites;
Danicek.

[237]     The
plaintiff’s pre-accident earning pattern may be a significant factor for consideration
in assessing loss of future earning capacity.  While not determinative, that
pattern will often assist in illuminating the likelihood of hypothetical future
events: Parypa v. Wickware, 1999 BCCA 88.  As is the case with past
loss of earning capacity, social assistance benefits must also be taken into
account: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9.

[238]     Counsel
for Ms. Gilbert seeks an award of $400,000 for her loss of future earning
capacity.  In his submission, Ms. Gilbert’s pre-accident plan to increase
her New Directions work and move into other areas of assisting First Nations
community members was entirely realistic.  As a result of the accident,
however, she has been rendered permanently unemployable.  Given her age,
aptitudes and the high demand for such services he says the value of her future
loss of earning capacity is substantial.

[239]     In support
of his submission, counsel notes the life trajectories of Ms. Gilbert’s
New Directions colleagues.  He emphasizes that Margaret Gilbert, Phyllis
Chelsea and Julie Antoine all experienced lives of extraordinary hardship and
engaged in self-defeating behaviour in their early adulthoods.  Nevertheless,
all three developed personally and stopped drinking by the time they reached
their 30s.  Thereafter, all three dedicated themselves fully to remunerative community
service work.

[240]     According
to her counsel, Ms. Gilbert would probably have followed a path similar to
that blazed by these three impressive women.  While acknowledging the challenges
of crystal-ball gazing and limits of mathematical calculation, he submits that
an award of $400,000 would provide reasonable compensation for Ms. Gilbert’s
future earning capacity loss.  The $400,000 figure he proposes is based on the
current value of an estimated loss of $2,000 per month in earnings to age 65.

[241]     Defence
counsel responds that Ms. Gilbert has established little, if any, real loss
of future earning capacity.  In his submission, continued opportunities with
New Directions were scarce and Ms. Gilbert’s vocational limitations were
all part of her pre-existing condition.  Accordingly, in his submission, even
if Ms. Gilbert would have continued working with New Directions but for
the accident the value of any future loss of earning capacity is modest.  Taking
into account her pre-accident earning pattern, he also says it is unlikely that
Ms. Gilbert would have earned other income in other ways.

[242]     I have
found that Ms. Gilbert is no longer able to work with New Directions, or
elsewhere, due to the effects of her traumatic brain injury.  I have also found
that there was ample work available with New Directions or comparable programs in
the period prior to trial.  In my view, the high demand for such work will very
likely continue indefinitely into the future.  As Ms. Chelsea observed, it
is a sad fact that poverty, substance abuse and other challenges continue to
mar the lives of many First Nations citizens.  Much remains to be done.

[243]     In all of
the circumstances, I agree with Ms. Gilbert’s counsel as to her probable
career path but for the accident.  I find that she would probably have overcome
her substance abuse habit eventually and gone on to perform increased community
service work.  In reaching this conclusion I consider the fact that both of Ms. Gilbert’s
parents stopped drinking in midlife and devoted themselves to community service. 
The same is true of influential others in her orbit such as Ms. Chelsea
and Ms. Antoine.

[244]     I also
consider, and agree with, Mr. Carlin’s view that Ms. Gilbert’s work
with New Directions was personally healing.  Had she been able to continue, I
find her work would likely have had a cumulatively positive and healing effect. 
I further consider the fact that Ms. Gilbert has demonstrated an ability
to control her abuse of substances, albeit on a temporary and variable basis. 
With increased maturity, however, there is every reason to believe this ability
would have strengthened and grown.

[245]     Taking
into account Ms. Gilbert’s inner resources, family support and positive influences
I find it highly likely that she would have discontinued abusing substances entirely
by her mid to late 30s.  Thereafter, she would likely have increased her work
with New Directions or a comparable program and experienced a corresponding increase
in earnings.  Taking into account her previous history of substance abuse,
ongoing diabetes and harsh environment, however, I find that Ms. Gilbert
had a lower than normal life expectancy.  For similar reasons, I also find she
likely would not have worked beyond age 60.

[246]     Mathematical
precision in assessing the likelihood these possibilities would have materialised
is impossible.  That said, I estimate there is approximately an 85% chance they
would have come to pass but for the accident.  Had this happened, it is likely
that Ms. Gilbert’s annual earnings from community service work would quickly
have at least quadrupled.  There is also a real possibility that she would have
supplemented her community service income with part-time work in the food
industry.  In the result, I find that her annual earnings would likely have reached
something in the $25,000 – $30,000 range.

[247]     As is
apparent from the foregoing, this is not a case in which the value of Ms. Gilbert’s
loss of future earning capacity is easily measureable.  For this reason, I
prefer the capital asset approach to assessment of her loss.  Application of
the Brown factors supports the conclusion that Ms. Gilbert has
suffered a significant loss of her capital asset.  She has been rendered incapable
overall of earning income from employment as a result of the accident; is not
marketable as a potential employee; has lost the ability to take advantage of
any job opportunities that might have been open; and is not valuable to herself
as a person capable of earning income.

[248]     Ms. Gilbert’s
counsel seeks an award of $400,000 for loss of future earning capacity based on
the present value of an annual loss of $24,000 in earnings to age 65.  I
have found that her likely annual loss is slightly higher and loss period
somewhat lower than what he suggests.  Nevertheless, I am satisfied that,
overall, a $400,000 award for loss of future earning capacity is fair and
reasonable to both parties in all of the circumstances.  In reaching this view,
I have considered the risk that Ms. Gilbert might have continued her
substance abuse habit and related low earning pattern beyond midlife. I have also
allowed for the contingency that her health might improve somewhat with
treatment and structured, untaxing work might become available to her.

[249]     All things
considered, I assess the value of Ms. Gilbert’s loss of future earning
capacity at $400,000.

Cost of Future Care

[250]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition in so far
as that is possible.  In reality, however, in cases of serious and permanent
injury such as this, true restoration can never be achieved.  In these
circumstances, the court’s paramount concern is to assure full compensation
through the provision of adequate care into the future. The award is to be
based on what is reasonably necessary on the medical evidence to preserve and promote
the plaintiff’s mental and physical health: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.); Williams (Guardian ad litem of) v. Low,
[2000] B.C.J. No. 408 (S.C.); Spehar (Guardian ad litem of) v. Beazley,
[2002] B.C.J. No 1718 (S.C.).

[251]     To be
awarded, future care costs must be justified both because they are medically
necessary and they are likely to be incurred by the plaintiff.  The award of
damages is thus a matter of prediction as to what will happen in future.  If a
plaintiff has not used a particular item or service in the past it may be inappropriate
to include its cost in a future care award: Izony v. Weidlich, 2006
BCSC 1315, para. 74.  In my view, however, while the plaintiff’s past
conduct may assist in predicting the future it is not necessarily determinative. 
Rather, the focus of inquiry when an item or service is reasonably necessary,
but previously unused, is whether it is likely to be incurred on going forward
basis.

[252]     Where
future care costs will be fully met by a social security program they are not
recoverable through an award of damages.  This is so because they are not
reasonably required to restore the plaintiff to his or her pre-accident state. 
The risk that access to public funds may be lost in future is, however, a proper
consideration with respect to contingency adjustment.  In this regard, the
court must assess the possibility that anticipated future care costs may turn
out to be more or less than presently contemplated and adjust the award
accordingly: Krangle (Guardian ad litem of); Boren v. Vancouver
Resource Society for the Physically Disabled, 2003 BCCA 388; Morrison
(Committee of) v. Cormier Vegetation Control Ltd., [1998] B.C.J. No. 3279
(S.C.).

[253]     The extent,
if any, to which a future care costs award should be adjusted for contingencies
depends on the specific care needs of the plaintiff.  In some cases negative
contingencies are offset by positive contingencies and, therefore, a
contingency adjustment is not required:  see Spehar (Guardian ad litem of). 
In other cases, however, the award is reduced based on the prospect of
improvement in the plaintiff’s condition or increased based on the prospect
that additional care will be required:  see Morrison (Committee of). 
Each case falls to be determined on its particular facts.

[254]     In Fenn
v. Peterborough (City), [1979] O.J. No. 4312 (CA), the Ontario Court
of Appeal considered the approach to contingency adjustment best suited to
cases involving total disability.  The Court stated as follows in this regard:

173      … In Oliver et. al. v. Ashman et. al., [1961] 3
All E.R. 323 at p. 340, Pearson, L.J., said:

Where a plaintiff has been rendered
helpless by his injuries, which have been caused by the defendants’ negligence,
the sum awarded as compensation should be sufficient to ensure that he will be
properly looked after by others in any situation which can reasonably be
foreseen, so that even rather improbable contingencies will be covered.

174      In cases such as this
where a plaintiff has been totally disabled and Courts are faced with the task
of providing sums to ensure proper care for a lifetime, one should not be quick
to reduce those sums under a ritualistic theory of contingencies.  In this
case, it is not difficult to foresee that in countless ways Sandra Fenn will be
put to extra expense to accomplish the ordinary small tasks and to partake of
the small pleasures in life and this contingency should as well be weighed in
the balance.  In the result we are not persuaded that there should be any
percentage reduction of the figures already arrived at under the theory of
contingencies.  Those possibilities which may tend to increase the financial
burden on Sandra Fenn are at least the equal to those possibilities which may
tend to diminish the sums awarded.

[255]     Counsel
for Ms. Gilbert seeks an award of $680,000 for the cost of future care in
this case.  In support of his submission, he relies on Ms. Berry’s recommendations
in connection with her June, 2010 occupational therapy assessment.  He concedes
that Ms. Gilbert does not have a normal life expectancy, which he says
should be reduced by five years for assessment purposes.  On Mr. Carson’s
evidence the present value of the cost of the services and items Ms. Berry
recommends, assuming a five-year reduced life expectancy, ranges from $632,839
to $734,871.  The $680,000 figure he proposes is in the middle of the range. 
He says further that Ms. Gilbert’s positive and negative contingencies
cancel one another out.

[256]     Defence
counsel responds that Ms. Gilbert is entitled to an award for only those costs
in addition to costs she would have incurred regardless of the accident’s
occurrence.  Amenities which serve the sole function of making her life more
bearable or enjoyable should not be covered by the future care award and are properly
compensated through an award for non-pecuniary damages.  In his submission,
given Ms. Gilbert’s pre-existing state, most, if not all, of Ms. Berry’s
recommendations do not qualify as additional expenses.  That being so, he says
a modest award to cover the cost of physical activation may be appropriate, but
the evidence does not support anything more.

[257]     I have
concluded that the accident caused Ms. Gilbert’s pre-existing mental,
physical and emotional condition to deteriorate significantly.  Although she
has not been rendered completely helpless, her traumatic brain injury sequelae
are serious, debilitating and permanent.   Her chronic pain may improve in time,
but it is also debilitating.  As a result of Ms. Gilbert’s injuries a variety
of treatments are now necessary to preserve and promote her mental and physical
health.  Restoration to her pre-accident condition is impossible but the
provision of adequate care into the future is not.

[258]     Ms. Gilbert
would plainly have benefited from drug and alcohol treatment, psychological counselling
and exercise therapy before the accident.  Nevertheless, given her past conduct
I find it unlikely that she would have accessed such treatment despite its
desirability.   Since the accident, however, she has begun slowly to develop insight
into her condition and need for treatment.  Although she did not follow Dr.
Bannerman’s recommendations, I am satisfied that, with appropriate support, she
will likely participate in treatment in future.  Her 2008 inquiry into the
Cheshire Homes program supports this conclusion.  Access to funds to pay for treatment
will make it possible.

[259]    
Ms. Berry recommends a staged approach to treatment, which, in some
respects, I find reasonable and realistic.  She summarises her recommended approach
to Ms. Gilbert’s future care as follows:

Stage 1:           Medical follow-up to inform her family
physician of her diagnosis and counselling initiated.

Stage 2:           Drug and alcohol treatment, 5-6 weeks

Stage 3:           Multidisciplinary Chronic pain program,
5-6 weeks.

Stage 4:           Residential brain injury rehabilitation
program to replace supported living assistance provided by family.  This
duration of this stage is unknown as it is dependent upon Ms. Gilbert’s
progress within the program.  The stage could last a few months to several
years.  Based on her current level of functioning she requires supported living
environment.

Stage 5:           If Ms. Gilbert
progresses with her programs it is possible that she is able to live
semi-independently with external supports such as occupational therapy,
rehabilitation assistant to supervise an exercise program, homemaking and
financial assistance and vocational services to participate in meaningful
activity.

[260]     I have
considered each item and service recommended by Ms. Berry and whether the
evidence supports the claim for its provision.  I have also considered that
future care costs are to be assessed, not calculated.  In making my assessment
I accept that Ms. Gilbert has a reduced life expectancy, although the extent of
the reduction is not discernable on the evidence.  For assessment purposes I
accept that her life expectancy is at least 5 years lower than normal.

[261]     Taking
into account the evidence of Drs. Bishop, Anderson and Nairn Stewart, I agree
with Ms. Berry that Ms. Gilbert does not possess the cognitive skills to live
independently.  I also agree with Ms. Berry that she likely would not have
required specialized intervention to learn independent living skills but for
the accident.  Considering her pre-accident pattern and personality, however, I
am satisfied that Ms. Gilbert would likely have shared accommodation with
family and friends for most of her life regardless of the accident.

[262]     Since the
accident, Ms. Gilbert has continued to live with family and friends in shared
accommodation.  It is abundantly clear from the evidence of Margaret Gilbert,
Ms. Coutlee and Ms. Basil that her family members are not inclined to abandon
Ms. Gilbert despite her difficult personality and behavioural change.  Given
the strength of their bonds, I do not accept Ms. Berry’s assumption that Ms.
Gilbert’s family will stop providing her with shelter and care in future.  On
the contrary, I think it highly likely that they will continue to help and
support her for the rest of her life.

[263]     I agree
with Ms. Gilbert’s counsel that her positive and negative contingencies offset
one another.  For example, the prospect that her mental and physical health
will improve with treatment such that she requires less assistance than
anticipated is offset by the risk that her substance abuse problems will
increase, as will her related need for increased care.

[264]     Doing the
best I can to predict the future and noting that the goal is fair compensation,
not money-saving, I reach the following conclusions with respect to the cost of
future care.

Drug and alcohol treatment

[265]     Drug and
alcohol treatment is necessary and recommended by virtually all of the experts. 
Amongst other benefits, its provision will optimize the value of subsequent
rehabilitation services.  Due to her growing insight, I am satisfied that Ms.
Gilbert is now ready to accept this form of treatment.

[266]     Ms. Berry
recommends that Ms. Gilbert participate in the Roundlake program located in
Vernon, B.C.  The program is publicly funded and lasts 5-6 weeks.  Admission
requires referral from a mental health counsellor and six sessions of pre-admission
counselling.  The cost of counselling is approximately $650.  There will also
be modest travel costs.  These are reasonable future care costs.

Multidisciplinary pain
clinic

[267]     Dr.
Anderson recommends a multidisciplinary pain clinic, as does Ms. Berry.  Given
her chronic pain disorder, I find that this treatment is medically necessary
and likely to be incurred.  The cost of assessment and treatment at a 5-6 week
program in the Lower Mainland is approximately $12,000.  In addition, Ms. Gilbert
will need to incur travel, meal and accommodation costs of approximately
$4,000.  These are reasonable future care costs.

Residential brain injury
rehabilitation program

[268]     Drs.
Bishop and Anderson recommend a residential brain injury rehabilitation program,
as does Ms. Berry.  As previously noted, in 2008 Mr. Millard concluded that Ms.
Gilbert is an appropriate candidate for the Cheshire Homes program.  I am
satisfied that such treatment is medically necessary and likely to be
incurred.  The duration of treatment would likely be something between 3-6
months.  The cost is approximately $46,000.  This is a reasonable future care
cost.

[269]     Following
completion of a residential brain injury rehabilitation program, Ms. Berry
recommends that Ms. Gilbert transition to semi-independent living by residing
in a supported living apartment for up to three years.  Although such an
arrangement may well be optimal, I think it unlikely that Ms. Gilbert will incur
such a cost.  Given her strong family ties and past pattern, in my view it is more
likely that she will return quickly to some form of semi-independent living
with family or friends after completing a residential brain injury program.  At
most, in my view a period of 4-6 months in a transitional supported apartment at
a cost of approximately $30,000 would likely be incurred.

[270]     Allowance
for the prospect that Ms. Gilbert will transition to semi-independent living in
a supported living apartment for 4-6 months is appropriate. Such an allowance
is included in the award for the cost of future care.

Medications and supplies

[271]     Ms.
Gilbert has increased her intake of over-the-counter analgesics due to her
chronic pain.  The cost of her annual intake is approximately $36.  The present
value of such intake for a life expectancy reduced by 5 years is approximately
$780.  This cost is reasonable and justified.  No evidence was presented
regarding the cost of necessary prescription medication.

[272]     Ms. Berry
also recommends the provision of grab bars every 5 years and a firm mattress every
10 years to improve the quality of Ms. Gilbert’s sleep.  Although I agree with
defence counsel that she would have required a mattress in any event, but for
the accident I am satisfied she would have limited herself to an inexpensive
brand.  The present value of such items over a five-year reduced life
expectancy is approximately $4,700.  Allowance for these costs, with an
adjustment to confine the award to only additional cost, is appropriate.

Ongoing provision of
therapies and health maintenance

[273]     Drs.
Anderson and Nairn Stewart recommend that Ms. Gilbert undertake psychological
counselling.  The various residential programs referenced above will include a
significant psychological services component.  Nevertheless, Ms. Berry recommends
a further allowance for additional psychological counselling following
completion of the residential programs.  Taking into account the effect of Ms.
Gilbert’s traumatic brain injury on her emotional state, I accept that this is a
reasonable cost likely to be incurred.  An allowance in the $1,000 range for
this purpose is included in the award for the cost of future care.

[274]     Ms. Berry also
recommends occupational therapy services for Ms. Gilbert on an ongoing basis
once she is living in the community.  She says Ms. Gilbert will likely require
a case manager to assist with functional problems, structured activity and
rehabilitation support.  She further recommends the services of a
rehabilitation assistant to monitor an exercise program, together with an
annual gym membership.  Ms. Berry acknowledges the difficulty of predicting how
many hours per month would likely be required and expended by such individuals,
but suggests 4-6 hours per month for an occupational therapist and up to three
times per week for a kinesiologist for the rest of Ms. Gilbert’s life.

[275]     Taking
into account the evidence of Drs. Nairn Stewart and Travalos, I find that both
forms of service are medically necessary given Ms. Gilbert’s compromised
physical and mental condition.  I do not accept, however, that Ms. Gilbert
needs or will likely use kinesiology services as frequently as Ms. Berry
recommends.  In particular, I think it distinctly unlikely that Ms. Gilbert
will work with a kinesiologist up to three times per week for the rest of her
life in a structured exercise program.  I accept that she likely will work with
an occupational therapist as recommended by her physician and other care-givers
in connection with her traumatic brain injury.

[276]     All things
considered, an allowance for occupational therapy support in the range
recommended is, in my view, reasonable and realistic.  The present value of its
cost over Ms. Gilbert’s reduced life expectancy is approximately $100,000.  An
additional allowance for an annual gym membership at a cost of approximately
$6,000 and regular kinesiology services for a few years at a cost of up to $20,000
is also reasonable and realistic.

Support services

[277]     Ms. Berry
acknowledges that Ms. Gilbert is able to complete basic homemaking tasks in her
current condition.  She recommends, however, that she receive additional
homemaking support for heavier seasonal cleaning and maintenance such as window
cleaning and cleaning under furniture.  Ms. Berry suggests an allowance of 48
hours per year for such services, at a cost of approximately $45,000, for the
balance of Ms. Gilbert’s reduced life expectancy.

[278]     Given my
conclusion that Ms. Gilbert will likely continue to reside with family members
I am not persuaded that she will incur costs in connection with homemaking support
services.  According, I decline to include an allowance for them in the award.

Financial management

[279]     Ms. Berry
recommends the provision of monthly financial services to assist Ms. Gilbert in
paying monthly bills and completing her annual taxes.  Again, I am not
persuaded that she will incur such costs given the likelihood that she will
live with, and be assisted by, family members in such straightforward
activities.  I decline to include an allowance for such costs in the award.

Rehabilitation Supplies

[280]     Ms. Berry
recommends that Ms. Gilbert use a day planner to compensate for memory,
planning and pacing activities.  This is a reasonable and realistic
recommendation.  The present value of its cost over the course of Ms. Gilbert’s
life expectancy is in the $600 range.

Overall Assessment

[281]     Taking
into account all of the foregoing, I assess the cost of Ms. Gilbert’s
future care at $200,000.

CONCLUSION

[282]     In
summary, Ms. Gilbert’s damages are assessed as follows:

[283]    
The parties have leave to make submissions as to costs and apply for any
further direction that may be required arising out of these reasons for
judgment.

"DICKSON J."