IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111031

Docket: M092888

Registry:
Vancouver

Between:

Kerry Milliken

Plaintiff

And

Cameron Rae Rowe

Defendant

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Kerry Milliken, was injured in a motor vehicle accident
on August 20, 2007, in Roberts Creek on the Sunshine Coast near her home
in Gibsons, British Columbia.

[2]            
While Ms. Milliken was turning left at an intersection, the defendant, Cameron
Rowe, attempted to pass on the left. When he did so, his vehicle struck the
driver’s side of Ms. Milliken’s vehicle.

[3]            
At the time of the collision, Ms. Milliken was the manager of a Panago
Pizza restaurant in Gibsons. After being off work for approximately one month
she returned to work on an irregular trial basis and resumed full-time
employment in January 2008. She still manages the restaurant but can now do so
only with significant accommodation by her employer to ameliorate the effects
of the injuries she suffered in the collision.

[4]            
Ms. Milliken is now 41 years old and is married to Mr. Terry Verhulst.
She is also the mother of a 12-year-old daughter.

[5]            
Since May 2010, Ms. Milliken has been the sole income earner for her
family. That came about because Mr. Verhulst has suffered the debilitating
effects of a rheumatoid disease and cannot work. The nature and extent of his
medical condition and its likely duration have not yet been fully ascertained,
but the outlook is not good.

ISSUES

[6]            
The defendant has admitted liability for the collision.

[7]            
The defendant has also agreed to pay Ms. Milliken $6,753 (net of income
tax) for her past wage losses and $5,513 as special damages.

[8]            
At issue is the assessment of Ms. Milliken’s claims for:

1)    Non-pecuniary
damages for her loss of enjoyment of life;

2)    Damages in the
net amount of $3,500 for the loss of employment bonuses she claims she would
have earned but for the collision;

3)    Damages for her
impaired income earning capacity;

4)    Damages to compensate
her for the cost of her future care; and

5)    Damages for her
loss of homemaking capacity.

BACKGROUND

[9]            
Ms. Milliken has a high school education having graduated in 1989.

[10]        
She has been employed primarily in the “fast food” industry either as a
front line worker or restaurant manager most of her working life. She has,
however, also worked as a child caregiver and briefly worked as a housekeeper
and receptionist in the accommodation industry.

[11]        
In 1997 Ms. Milliken began work at the Panago Pizza restaurant in
Gibsons, a franchise facility owned and operated by Ms. Tricia Perritt.

[12]        
After working there for some time as a regular employee, she left to
take a position with a McDonald’s restaurant in Gibsons, where she eventually undertook
both on-the-job and corporate-sponsored management training.

[13]        
After her work at McDonald’s, Ms. Perritt hired Ms. Milliken to return
to the Panago Pizza restaurant and she eventually became the manager of the
restaurant.

[14]        
Ms. Milliken worked there full time as the manager until the August 20,
2007 collision. During that time she again pursued management training through
courses of study sponsored by Panago Pizza’s head office.

[15]        
At the time of the collision Ms. Milliken was earning a salary of
approximately $38,000 per year. For that salary she worked from 40 to 60 hours
per week, performing not only administrative responsibilities as the restaurant
manager, but also assisting with front line work.

[16]        
Her administrative duties included scheduling, cash deposits, and
paperwork for head office. Front line physical work included cleaning and
maintenance of the kitchen and restaurant, food preparation and cooking, some
deliveries and customer service as needed.

[17]        
Ms. Perritt estimated that 10% to 15% of Ms. Milliken’s workday was
spent on sedentary administrative tasks and the balance was devoted to more
physical operational work.

[18]        
Ms. Perritt also testified that prior to the collision Ms. Milliken was
a “one hundred per-cent reliable” employee who never called in sick and was
“always there.”

[19]        
When Ms. Milliken was injured in the collision in August 2007, her
injuries precluded her from working for about one month.

[20]        
Her inability to work not only cost Ms. Milliken, but also disrupted Ms.
Perritt’s plans.

[21]        
That is so because:

1)    Before the
collision occurred, Ms. Perritt was working towards completion of studies and
examinations leading to qualification as a Registered Massage Therapist. Her
final examinations were scheduled for September 2007.

2)    Ms. Perritt’s
studies required that she spend less time than usual working at her pizza
business. She was also unable to provide as much administrative assistance to
Ms. Milliken as she generally did.

3)    To compensate Ms.
Milliken for taking on some of Ms. Perritt’s responsibilities, she offered
Ms. Milliken two bonuses. The first was a payment of $1,000 after September 20,
2007, for work completed from June through September 2007. The second was a
five-day trip for four to West Edmonton Mall valued at $3,500. It included
flights, hotel accommodations and a spending allowance of $125 per day.

4)    When Ms.
Milliken was injured, Ms. Perritt had to return to work at Panago Pizza and
defer her final examinations.

5)    When that
occurred, Ms. Perritt decided Ms. Milliken had not earned the two bonuses although
had been “on track” before the collision which had rendered her unable to work
in the month before the scheduled examinations.

[22]        
In the collision of August 20, 2007, Ms. Milliken received injuries to
her neck and to the right side of her body with the most serious injuries being
to her right shoulder.

[23]        
After the collision, Ms. Milliken was taken to hospital by ambulance where
she was seen by emergency doctors and x-rays were taken. She was then released
and went home.

[24]        
On August 24, 2007, she saw Dr. Stenardo, a locum who was then filling
in for Ms. Milliken’s regular family physician, Dr. Paetkau.

[25]        
Ms. Milliken primarily complained of muscle spasm and strain in her neck
and right shoulder and as noted was unable to work at all until September 24,
2007, because of her injuries.

[26]        
Because Ms. Milliken could not afford not to work, she went back to work
earlier than she should have. She started on a trial basis on September 24,
2007, and then worked part time until January 5, 2008, after which she then began
to work full time.

[27]        
Before going back to work and also while working part time, Ms. Milliken
attended both massage therapy and physiotherapy sessions and regularly attended
upon both Dr. Stenardo and then Dr. Paetkau concerning the progress of her
injuries, as well as her difficulties with working.

[28]        
Those difficulties included increased pain in her neck and shoulders,
problems with lifting and some forgetfulness.

[29]        
Although Ms. Milliken returned to work “full time” in January 2008, the
evidence establishes that the hours she then was able to work and which she now
still works were significantly less than the 40 to 60 hours per week she had worked
before the collision.

[30]        
Ms. Perritt testified that Ms. Milliken now works at most 40 hours per
week and with less endurance than before. Also, her ability to perform some of
her previous, more onerous physical duties, especially those involving above-the-shoulder
activities and heavier lifting are now restricted.

[31]        
Ms. Milliken’s co-workers who testified offered similar observations
about her physical limitations and endurance, as well as the extra assistance
they have had to provide to help her with such tasks to lessen the pain and
discomfort she suffers as she attempts to do those tasks on her own.

[32]        
Notwithstanding that diminished job performance and the much reduced
hours she now works, Ms. Milliken has not yet suffered direct financial
consequences arising from either since returning to work full time in January
2008. That is so only because of her employer’s salutary approach to her work
difficulties.

[33]        
Ms. Perritt not only accommodated Ms. Milliken’s restricted work hours
and disabilities by herself undertaking more work at the restaurant but has
done so without reducing Ms. Milliken’s remuneration. Ms. Perritt testified
that if she were to look for a manager today she would not hire Ms. Milliken if
she was aware of her restrictions. She has, however, out of loyalty and
friendship, continued to accommodate Ms. Milliken’s needs.

[34]        
In the summer of 2008 when Ms. Milliken was still suffering difficulties
with her work, an occupational therapist, Ms. Laila Karmali, was retained and
attended at the Panago Pizza restaurant on two occasions. She performed both a
work capacity screen and a functional evaluation of Ms. Milliken and her place
of work.

[35]        
Ms. Karmali noted that Ms. Milliken suffered limitations in lifting,
carrying, standing, stopping and twisting. She recommended an active
rehabilitation exercise program as well as a work conditioning program. She
also recommended that staff continue to assist Ms. Milliken with lifting and
carrying tasks as needed.

[36]        
The defendant’s insurer agreed to fund some of the exercise treatment recommended
by Ms. Karmali but not the recommended work conditioning program.

[37]        
Ms. Milliken then participated in the defence-funded exercise program in
December 2008 as well as in January 2009 and March 2009. At her own cost (paid
by her lawyers) she also undertook the recommended work capacity program with a
personal trainer from January to April 2009.

[38]        
Ms. Milliken testified that after participating in those programs, her
right hip and back which had caused her difficulty after the collision were
better but she still continued to suffer pain in her right shoulder.

[39]        
That shoulder pain continued to impact her ability to do the more
physical aspects of her work and also caused a reduction in stamina in not only
work but also home-related activities. In result, time spent at work reduced
her ability to care for her home and enjoy life outside of work.

[40]        
The shoulder pain suffered by Ms. Milliken persisted into late 2009 and
became unbearable during a wedding in which she participated in October 2009.

[41]        
After that wedding, on October 28, 2009, Ms. Milliken saw another doctor
in Dr. Petkau’s office who ordered that x-rays be taken.

[42]        
Ms. Milliken then saw Dr. Petkau in November 2009 who referred her to Dr. Peter
Zarkadas, an orthopaedic physician and surgeon specializing in shoulder, elbow,
and sports medicine.

[43]        
Before seeing Dr. Zarkadas, Ms. Milliken continued to suffer significant
pain in her right shoulder that was aggravated by her work at Panago Pizza.

[44]        
As she had since her return to work, Ms. Milliken continued to require accommodation
and assistance from her employer and fellow workers in order to function
adequately for about 40 hours per week. Her work also continued to leave her
exhausted from pain and effort so that she was unable to attend fully to
outside-of-work activities in the way she had before the collision.

[45]        
Ms. Milliken first met with Dr. Zarkadas in March 2010. He determined
that the x-rays of her right shoulder demonstrated “very mild acromioclavicular
(AC) joint arthritis and joint space narrowing.” His diagnosis was that “it
could be one of 2 things or both in combination which include biceps tendonitis
and AC joint antropathy.”

[46]        
After that, Ms. Milliken underwent a course of exploration and treatment
that Dr. Zarkadas hoped would improve her shoulder conditions without resort to
surgery.

[47]        
That course included:

1)    an ultrasound on
April 29, 2010, performed at the Lions Gate Hospital, that was also to have
included (but for some unknown reason did not) an ultrasound-guided cortisone
injection of her right proximal biceps tendon;

2)    an AC joint
injection for diagnostic purposes administered by Dr. Zarkadas on June 20, 2010,
who also ordered a private MRI examination for further investigation;

3)    the private MRI
examination of her right shoulder on July 15, 2010, which indicated the existence
of “moderate bicipital tendinopathy with mild acromioclavicular arthropathy”;

4)    an ultrasound-guided
cortisone injection into her biceps tendon performed on July 27, 2010; and

5)    another
ultrasound-guided cortisone injection into her biceps tendon on January 11,
2011.

[48]        
While those treatments and examinations were ongoing, Mr. Verhulst’s
debilitating rheumatoid condition was diagnosed. He was unable to work and his
condition also required that Ms. Milliken assist him in performing many
physical activities such as hair washing and assisting him with medical
appointments and medications.

[49]        
Mr. Verhulst was also unable to do the usual work around the house
and yard he had previously done, resulting in the work either not being done or
in Ms. Milliken attempting to do it while still coping with her own physical
limitations and the stress arising from pain she endured at work.

[50]        
Meanwhile, none of the cortisone injection treatments prescribed by Dr. Zarkadas
left Ms. Milliken’s shoulder completely free of pain if she continued to use
her right arm to do work she was required to do. The injections did, however,
provide good relief if she rested the shoulder almost completely.

[51]        
Before the last cortisone injection on January 11, 2011, Dr. Zarkadas
advised Ms. Milliken that if the injections did not work to relieve her
pain, surgery was likely needed.

[52]        
As it turned out, that last injection again did not offer ongoing relief
if she used her arm at work.

[53]        
On May 10, 2011, Dr. Zarkadas told Ms. Milliken that she might want to
consider changing professions rather than undergoing surgery because surgery
might only temporarily or incompletely succeed in treating her ongoing shoulder
injury.

[54]        
At trial, Dr. Zarkadas testified that when he gave that advice, he
sought to avoid a difficult surgery with only about a 50% chance of success. He
also, however, testified that if Ms. Milliken could not dramatically change her
work conditions, then surgery should be attempted because the more benign
treatment which had not been successful to date would not likely benefit her.

[55]        
Dr. Zarkadas was not called as an expert witness at trial but he is
obviously a well-qualified orthopaedic surgeon. He is also Ms. Milliken’s treating
physician concerning her right shoulder difficulties.

[56]        
As such he was able to assist me in assessing Ms. Milliken’s future
prospects if the surgery is undertaken or if it is not. To that extent, his
more immediate involvement with and treatment of Ms. Milliken allows
insight that was not previously available to Dr. Andrew Travlos (adduced as
opinion evidence by the plaintiff) arising from his examinations and enquiries
six months earlier.

[57]        
In those circumstances, notwithstanding the failure of the plaintiff to
seek to have Dr. Zarkadas qualified to provide opinion evidence, I determined
to receive his evidence concerning his diagnosis and prognosis related to Ms.
Milliken’s right shoulder injuries.

[58]        
I did so over the objection of the defendant because of my belief that
the determination of damages in this case should be based upon the best
evidence available.

[59]        
In my opinion, the ability to achieve a just result should be served, rather
than thwarted, by the application of procedural rules.

[60]        
The Court’s power to exercise discretion to allow relief from the harsh
consequences of non-compliance with procedural rules recognizes that principle.

[61]        
I also, however, recognized that the defendant could be prejudiced by
the admission and consideration of Dr. Zarkadas’ prognostic evidence if not
given an opportunity to answer it.

[62]        
I accordingly provided the defendant an opportunity to consider whether
to call rebuttal evidence before rendering judgment.

[63]        
I was subsequently informed that the defendant did not intend to do so.

ANALYSIS AND DISCUSSION

[64]        
Before proceeding to an assessment of the damages suffered by Ms.
Milliken in the collision, I will first address issues of causation and an allegation
of failure to mitigate.

Causation

[65]        
I find that the totality of the evidence establishes that the neck and
shoulder pain as well as the headaches, back pain and right leg pain which Ms.
Milliken has suffered since August 2007 were caused by the defendant’s
negligence.

[66]        
I reach that conclusion because:

1)    Ms. Milliken was
examined on December 4, 2009, by Dr. Andrew Travlos, a specialist in physical
and rehabilitative medicine, and saw him again on December 6, 2010.

2)    Dr. Travlos
testified as an expert witness and opined that the neck and shoulder pain as
well as the headaches, back pain and right leg pain Ms. Milliken has
suffered since August 2007, for which she seeks compensation, all relate
directly to the collision.

3)    Dr. Travlos was
not cross-examined about any causation issues.

4)    The defendant
led no evidence to refute Dr. Travlos’ testimony.

5)    Although Dr.
Zarkadas did suggest in the very early stage of his diagnosis and treatment
that some of Ms. Milliken’s right shoulder concerns could involve arthritis,
that possible diagnosis was not confirmed by later examinations or
interventions and was not relied upon by the defendant as an ongoing causation
issue.

[67]        
The defendant is not responsible for a work-related injury in the spring
of 2009 when Ms. Milliken struck her hip on a countertop, causing hip and some
back pain. Those injuries have resolved and play no part in my assessment of
damages.

Mitigation

[68]        
The defendant submits that Ms. Milliken failed to mitigate the impact of
her injuries, and particularly those to her shoulder, by not fully following recommended
strength and conditioning programs.

[69]        
The defendant relies upon Dr. Travlos’ report of December 4, 2009, in
which he recommended further physiotherapy for her right shoulder as well as a
structured exercise program for her shoulder and continued exercise thereafter.
In Dr. Travlos’ report one year later, he observed that her exercise program
was not structured in that it involved mostly stretching and few strength
components.

[70]        
Ms. Milliken’s recovery from the injuries suffered has been a long and arduous
process.

[71]        
When the occupational therapist, Ms. Karmali, attended at the Panago
Pizza restaurant in the summer of 2008, she determined that Ms. Milliken
suffered limitations in lifting, carrying, standing, stopping and twisting.

[72]        
Ms. Karmali recommended an active rehabilitation exercise program as
well as a work conditioning program including an active rehabilitation exercise
program as well as a work conditioning program.

[73]        
As noted above, the defendant’s insurer agreed to fund some of the
recommended exercise treatment but not the recommended work conditioning
program.

[74]        
Ms. Milliken then participated in the recommended and defence-funded
exercise program in December 2008, January 2009 and March 2009. At her own cost
(paid by her lawyers) she also undertook the recommended work capacity program
with a personal trainer from January to April 2009.

[75]        
Dr. Petkau and Dr. Zarkadas both described Ms. Milliken as a motivated
patient. I find that Ms. Milliken followed her various doctors’ and other
treating professionals’ advice within the limits of her physical and financial
ability to do so.

[76]        
I find that while it may have been beneficial for Ms. Milliken to have
undertaken further conditioning for her right shoulder injury, the defendant’s
suggestions that she unreasonably failed to mitigate her losses ring hollow
when weighed against the refusal to fund a work conditioning program especially
when most of Ms. Milliken’s pain, suffering, and aggravation of her
injuries arose from her work.

[77]        
The defendants have not met the burden of establishing either that Ms. Milliken
failed to mitigate her damages or that any alleged failure to mitigate
increased or perpetuated her suffering.

Damages

[78]        
I now proceed to my assessment of the damages suffered by Ms. Milliken for
which she is entitled to compensation.

Non-pecuniary damages

[79]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life and loss of enjoyment of amenities caused by the fault of a tortfeasor.

[80]        
In Stapley v.Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
set out a useful non-exhaustive list of factors that offer guidance as to what
may influence an award of non-pecuniary damages. The list included the:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

[81]        
She then went on to say:

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[82]        
With those considerations in mind I will now address the factors that I
consider most significant to my assessment of the appropriate award to
compensate Ms. Milliken for her pain, suffering, and loss of enjoyment of life.

[83]        
Ms. Milliken was 37 when she was injured. She suffered from injuries to
her right hip and back that caused significant discomfort (primarily at work).
The effects of those injuries were largely resolved within about two years.

[84]        
Ms. Milliken also, however, suffered from right shoulder pain that did
not resolve and has now been ongoing for four years. The only potential end in
sight for the amelioration of the pain and suffering concerning her right
shoulder is invasive surgery with about an even chance of success. Whether
successful or not, the proposed complex surgery will require an extensive
period of recuperation of from 3 to 6 months.

[85]        
I find that the pain Ms. Milliken has endured has been debilitating.

[86]        
While she has worked through much of it of necessity, the cost to her of
doing so has been great.

[87]        
Her life has become a one-dimensional one in which activities unrelated
to work have largely had to be put aside. She no longer has the stamina or
physical ability to care for her home as she previously did and has become
socially reclusive because of that and her constant tiredness.

[88]        
Ms. Milliken is no longer able to play with her grandchildren as she
once did due to pain and discomfort in her shoulder. She no longer participates
in making crafts or enjoying recreational pursuits with her family.

[89]        
Her injuries have also exacerbated the physical challenges which she now
faces in caring for her husband and that prevented her from taking on some of
the work around the home and yard for which he was previously responsible.

[90]        
While care must be taken not to require the defendant to compensate Ms. Milliken
for costs that have been incurred by the family due only to Mr. Verhulst’s
present condition, it remains the case that the defendant’s negligence has
reduced Ms. Milliken’s physical and emotional ability to cope with the
vicissitudes of life as she would have done but for the injuries she suffered
in the collision.

[91]        
Ms. Milliken’s suffering will also not end with this litigation.

[92]        
At minimum she must endure complex shoulder surgery and a lengthy period
of rehabilitation in which she will continue to be unable to enjoy life as she
once did. Her likely future enjoyment of life is also compromised by the
prospect that the surgery may be wholly or partially unsuccessful.

[93]        
The totality of the evidence satisfies me that there is no question that
Ms. Milliken will continue to suffer pain and suffering as well as loss of
her enjoyment of life at least until after rehabilitation from surgery to her
shoulder.

[94]        
There is also a substantial likelihood that she will suffer ongoing pain
and suffering and loss of enjoyment into the future after the shoulder surgery.

[95]        
Every assessment of non-pecuniary damages is unique.

[96]        
It must be based on the totality of the reliable evidence with intent to
compensate the injured person fairly. It must not, however, be over-compensatory
because that would not be fair to the defendant.

[97]        
Counsel for Ms. Milliken submitted that an award of $85,000 to $95,000
will appropriately compensate her for pain and suffering and loss of enjoyment
of life.

[98]        
Counsel for the defendant submits that a general damages award in the
range of $50,000 to $70,000 would be more appropriate.

[99]        
Both counsel relied upon a number of cases which they say support the
submissions they have made.

[100]     On behalf
of Ms. Milliken, Mr. Maragos relied upon: Garcha v. Duenas, 2011 BCSC
365; Szymanski v. Morin, 2010 BCSC 1; Moussa v. Awwad, 2010 BCSC
512; Vershinin v. Hayward, 2010 BCSC 1315; and, most particularly, Schnare
v. Roberts, 2009 BCSC 397.

[101]     On behalf
of the defendant, Ms. Gauthier relies upon: Heyes and Cabrera v. Lanphier,
2003 BCSC 1126 [Heyes]; Chong v. Tran, 2001 BCSC 1417 [Chong];
and De Gaye v. Bhullar, 2010 BCSC 1798.

[102]     I am
satisfied that, generally speaking, those cases establish that the range of
damages (adjusted for time in the case of Heyes and Chong), for
the type of injury suffered by Ms. Milliken, is from $65,000 to $85,000.

[103]     Although
awards in similar cases offer some guidance as to the range of damages
appropriate, the assistance to be derived from other awards will always be
subject to fact specific considerations.

[104]     I have
concluded that in this case the injuries suffered by Ms. Milliken, the
devastating impact on her life and the pain and suffering and loss of enjoyment
caused by them and her uncertain future, require compensation at the high end
of the established range.

[105]     I award
Ms. Milliken non-pecuniary damages of $85,000.

Damages in the net amount of $3,500 for
the loss of employment bonuses

[106]     As noted
above, this claim arises from Ms. Milliken’s assertion that had she not been
injured in the collision she would have earned the employment bonuses for her
extra efforts at work while Ms. Perritt was engaged in her massage therapy
studies.

[107]     The
parties have agreed that the net (after tax) value of the two bonuses is
$3,500.

[108]     The
defendant submits that Ms. Milliken is not entitled to compensation for the
loss of the bonuses because the terms of the bonus agreements are vague, are
not sufficiently reduced to writing, and because Ms. Milliken has not
established on a balance of probabilities that she would have been entitled to
the bonuses but for the collision.

[109]     I find no
merit to any of those submissions.

[110]     I am
satisfied that Ms. Milliken and Ms. Perritt understood the basics of the bonus agreement
and that Ms. Milliken had to fully perform the extra work needed to receive the
bonuses. The value of the compensation was also ascertainable. Since full
performance was necessary so that Ms. Perritt could complete her studies, it
does not matter that Ms. Milliken was “on track” at the time of the collision.

[111]     There is
also no evidence to support the submission Ms. Milliken would not have
completed her obligations under the bonus agreement if she had not been
disabled from doing so by the collision.

[112]     Ms.
Milliken has established entitlement to damages in the net amount of $3,500 for
the loss of the employment bonuses.

Damages for impaired income earning
capacity

[113]    
In Perren v. Lalari, 2010 BCCA 140 [Perren], our Court of
Appeal settled the question of how claims for lost impaired earning capacity
can be addressed. After a long discussion and review of different approaches
that had been applied in past cases, Garson J.A. stated for the Court at para.
32:

[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.

[Underline emphasis in original.]

[114]     Counsel
for Ms. Milliken submits that an award of $175,000 is necessary to compensate
her for impaired earning capacity.

[115]     The
defendant submits that Ms. Milliken has failed to establish entitlement to an
award for loss of earning capacity because she has been employed as the manager
of the Panago Pizza restaurant full time since returning to work after the
accident. The defendant says that in those circumstances, Ms. Milliken’s claim
for any loss of income earning capacity is speculative and unsupported by
evidence that there is a real and substantial possibility that she will suffer
any loss of future earnings as a consequence of the collision.

[116]     Alternatively,
the defendant submits that any loss of income suffered by Ms. Milliken
will be limited to a relatively short rehabilitative period after the surgery
to her shoulder if she elects to follow that course of treatment.

[117]     In the
further alternative the defendant submits that if an award for lost earning
capacity is made, it must be modest to account for Ms. Milliken’s: complaints
of stress before the accident and the suggestion that she reduce her hours of
work; history of high blood pressure; a family history of diabetes; and proven
managerial experience which should make her readily marketable on the open job
market if she becomes unemployed.

[118]     Both
counsel agree that the determination of any loss of earning award in this case
should be based upon the capital asset approach discussed in Brown v. Golaiy
(1997), 26 B.C.L.R. (3d) 353 (S.C.) [Brown], approved in Kwei v.
Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), and again approved in Perren.

[119]    
In Brown, Finch J. (as he then was) stated:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

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

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

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

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

[120]     After
considering all of those factors in the context of the evidence as a whole, I
have concluded that the award sought by Ms. Milliken is excessive.

[121]     On the
other hand, I also find that the position advanced by the defendant fails to
recognize that Ms. Milliken’s earning capacity has been significantly
compromised.

[122]     In my
view, Ms. Milliken really has no option but to attempt to alleviate both her
present difficulties and also improve her future prospects by undergoing the
shoulder surgery now recommended by Dr. Zarkadas.

[123]     In result,
her future capacity to earn income will be immediately impacted by the
consequences of that shoulder surgery.

[124]     Also, because
of her physical limitations, it is not realistic to suggest that Ms. Milliken
could find employment as a manager in the fast food industry without the
surgery.

[125]     The fast
food industry is the only field in which Ms. Milliken has managerial skills
that are marketable, and management positions in that industry require hands-on
work involving physical activities she cannot do without significant
accommodation both as to hours of work and assistance.

[126]     Re-training
to more sedentary work might be possible but on the evidence before me, given
her age and the potential for jobs for which she would then be suited on the
Sunshine Coast, I am satisfied that the result of re-training and the securing
of more sedentary employment would be a loss of income in the range of $15,000
to $20,000 per year.

[127]     If I were
to compensate her for her lost earning capacity based upon those losses (being the
present value of approximately $400,000) the result would, in my opinion, be
unreasonable when surgery is an option. At worst, surgery will be wholly
unsuccessful but, at best, could significantly improve Ms. Milliken’s future
work capacity.

[128]     I have
concluded that having regard to the totality of the evidence, including the
medical prognostications of both Dr. Zarkadas and Dr. Travlos, that even with
the surgery there is a real and substantial possibility that Ms. Milliken’s
working future will be seriously at risk following the 3 to 6 month period of post-surgery
rehabilitation in which she will not be able to earn any income.

[129]     If the
surgery is unsuccessful or partially so, Ms. Milliken will continue to be considerably
less capable of earning wages commensurate with her pre-collision abilities.
She will be limited in the hours she is able to work and will continue to
require significant accommodation by her employer and staff that an unimpaired
manager would not require.

[130]     Although
Ms. Perritt has been a more than accommodating employer to date and will likely
continue to be so as long as she owns the Panago Pizza franchise in Gibsons, I
cannot ignore that in the recent past she listed the franchise for sale. Also,
while she has no present plans to sell, Ms. Perritt is now qualified in a new
career and her plans could change.

[131]     An
eventual sale by Ms. Perritt during Ms. Milliken’s future working years is
thus a real and substantial possibility and if a sale of the franchise occurs,
it is highly unlikely that another employer would be nearly as understanding
and accommodating of Ms. Milliken’s situation.

[132]     Since Ms.
Milliken is highly unlikely to retire before 65 years of age, that possibility
and its ramifications are real and substantial risks to her future earning
capacity.

[133]     An award
of compensation must not only appropriately factor in those negative
contingencies I have specifically addressed. It must also have regard to loss
of income that could arise from unemployment or other causes unrelated to the
collision that would not be compensable. It is also possible (but unlikely)
that Ms. Milliken could receive promotions or other more remunerative
opportunities to earn income.

[134]     In all of
the circumstances, I have concluded that Ms. Milliken is entitled to an award
of $95,000 for the impairment of her future employment capacity caused by the
defendant’s negligence.

Damages for the cost of future care

[135]    
In Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC
762, at para. 182, Pearlman J. succinctly stated the principles that govern the
determination and assessment of claims for damages for cost of future care in
personal injury cases. He wrote:

[182] There must be a medical
justification for claims for cost of future care, and those claims must be
reasonable and fair to both parties. The court must determine the services,
medications and aids that are reasonably necessary to promote the health of the
plaintiff and assess the likelihood that he will use them in the future. See: Aberdeen
v. Zanatta, 2008 BCCA 420 at paras. 41-42; and Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.).

[136]     For the
most part, in support of her claims for damages for the cost of her future care,
Ms. Milliken relies upon a Functional Assessment and Valuation report prepared
by Ms. Diana Robertson, an occupational therapist who also testified at trial
as an expert witness.

[137]     After the
conclusion of Ms. Robertson’s evidence, counsel for Ms. Milliken appropriately
withdrew some of the items for which future care compensation had been previously
recommended by her.

[138]     Ms.
Milliken’s remaining claims fall into two basic categories.

[139]     The first
is comprised of those care costs that relate directly to her future health and
well-being. The second concerns costs which also involve spousal related care.

[140]     I will
deal with each category separately.

A.         Future care costs specific only
to the plaintiff

[141]     Ms.
Milliken seeks compensation for her future care costs related to her needs for:

1)    A physical
rehabilitation program;

2)    Medication;

3)    Yard work,
routine cleaning and seasonal cleaning;

4)    Vocational
assessment and consulting; and

5)    Post-surgical
services including physiotherapy, home cleaning and a care aide.

[142]     I will
consider each of those claims in turn.

1)         A physical rehabilitation
program

[143]     In his
report of December 6, 2010, Dr. Travlos recommended a further physical
rehabilitation program in addition to that which Ms. Milliken has previously pursued.
Dr. Zarkadas also testified that the complex shoulder surgery she is facing
would be aided by conditioning and weight loss.

[144]     While I
appreciate that Ms. Milliken has had the benefit of some prior assistance with
these issues, that involvement of rehabilitation professionals was not specific
to her shoulder complaints which are now the     focus of her injuries.

[145]     I find
that Ms. Robertson’s recommendation of a one year physical and exercise program
including a one year gym pass at a cost of $5,472 is medically justifiable and
fair to both parties. Given the immediacy of the need for the award and the
relatively short length of time over which the services are needed, I will
discount that           award for present value purposes to $5,400.

2)         Medication

[146]     Dr. Travlos
has recommended medication to assist with Ms. Milliken’s pain-induced disturbed
sleep. Since the need for that continued medicinal assistance will in large
part be determined by the extent to which her shoulder responds to surgery, her
claim for the costs of that medication must reflect that contingency.

[147]     I also
note, however, that Dr. Travlos had opined that even with successful surgery
she will likely have some ongoing pain.

[148]     I am
satisfied that in all of the circumstances the time-adjusted award in the
amount of approximately $2,000 sought by Ms. Milliken for medications is not
medically justifiable or reasonable.

[149]     I find
that an award of $750 for the future cost of medication needed by reason of the
action will reasonably compensate Ms. Milliken.

3)         Yard work, routine cleaning and
seasonal cleaning

[150]     I have
determined that Ms. Milliken’s claims for the cost of her future care related
to yard work, routine cleaning and seasonal cleaning are more appropriately
considered as claims for loss of homemaking capacity than as future care costs.
I will do so in the next sections of these reasons.

4)         Vocational assessment and
consulting

[151]     I do not
accept that the future care costs sought for vocational training or consulting
are either medically justifiable or necessary. Ms. Milliken has spent virtually
all of her working life in the fast food industry. She has had the benefit of a
vocational assessment which assists her in doing that work in her present
condition. She would also likely not need re-training for the type of sedentary
work she might undertake if the surgery is entirely unsuccessful.

5)         Post
surgical services including physiotherapy and a care aide

[152]     If Ms.
Milliken undergoes the shoulder surgery (which I am satisfied she must), the
medical evidence supports a finding that the recovery period will be at least
three months.

[153]     The
defendant accepts that post surgery physiotherapy services are medically
justifiable and that the low end of Ms. Robertson’s cost analysis for those
services (based on a three-month period) are reasonable.

[154]     I agree
and award Ms. Milliken $2,304 for those services. Given the immediacy of the
need for those awards and the relatively short length of time over which the
services will be needed, I will discount that award for present value purposes
to $2,250.

[155]     I will
address related post surgery claims for the provision of a care aide for the
post surgery recovery period in conjunction with Ms. Milliken’s spousal related
claims.

B)        Future care claims involving spousal
related services

[156]     As noted,
Ms. Milliken seeks compensation for future costs that Ms. Robertson has recommended
concerning services Ms. Milliken is now compromised in providing to her now-disabled
husband.

[157]     The costs
identified by Ms. Robertson related to the provision of those spousal related
services total approximately $84,000. They include:

1)    new flooring;

2)    a new kitchen;

3)    a wheelchair-accessible
vehicle assessment and van purchase and conversion; and

4)    driving aids
comprised of pedal extensions and a spinner knob.

[158]     Ms.
Robertson also addressed but did not quantify care aide costs to assist Ms.
Milliken in providing services to her husband.

[159]     These
spousal related claims raise complex questions concerning principles of both
foreseeability and remoteness in the assessment of damages.

[160]     In
addressing these issues, counsel for the defendant submits that the spousal
assistance claims advanced by Ms. Milliken “relate to the needs of the
Plaintiff’s husband which are caused by his condition” and says they are not in
any way compensable.

[161]     After
acknowledging that there is little, if any, direct authority on point
concerning these interrelated personal and spousal claims, counsel for Ms.
Milliken relies upon Lynn v. Pearson [Lynn], an unreported
decision of this Court pronounced by Rowan J. on February 28, 1997, in New
Westminster, Registry File No. S25459.

[162]     In Lynn,
Rowan J. considered issues of future care costs in relation to the injuries
suffered by the 81-year-old plaintiff who at the time of the accident did much
of the family housework and was also the companion and guide outside the home
for his legally blind wife. After the accident in which Mr. Lynn was injured,
his ability to fulfil those roles was compromised.

[163]     Rowan J.
was confronted with the fact that the couple’s needs were co-dependent and that
their prospective future life together while relatively short because of their
ages, would almost certainly be spent together with differing degrees of care
for both being required as they aged.

[164]    
In considering the various stages of their remaining years in which care
would be needed and the extent to which the defendant would be responsible for
the damages suffered by the care costs of the plaintiff attributable to the
accident, Rowan J. firstly observed at para. 26 that:

…The cost of Mrs. Lynn’s future care is not compensable
by itself. The cost of her future care can only be compensable to the extent
that it is a justifiable adjunct to the future care of the Plaintiff.

[165]     He then, however, went on to say at paras. 27-29:

[27] It was suggested in argument that there could be a claim
by Mrs. Lynn for her loss of her husband’s care. That claim is analogous to the
old pleading “per quod servitium amisit” (a claim for loss of services
of a wife or servant) which was abolished by s. 59 of the Law and Equity
Act as amended in 1988. An answer to any claim by Mrs. Lynn for loss of
her husband’s care can be found in the often quoted words of Lord Atkin in Donaghue
v. Stevenson [1932] A.C. 562 (H.L.) at 580:

“The rule that you are to love your neighbour becomes in
law, you must not injure your neighbours; and the lawyer’s question, who is my
neighbour? receives a restrictive reply. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would likely injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be – persons
who are so closely and directly affected by my act that I ought reasonably to
have them in my contemplation as being so affected when I am directing my mind
to the act or omissions which are called into question.”

[28] Save for Mrs. Lynn’s claim for work done in caring
for her husband, which will be the subject of a separate award, Mrs. Lynn’s
claim is not within the ambit of recovery in tort. Mr. Lynn is entitled to full
recovery for loss as a result of the accident, including his loss of capacity
to care for his wife, which will be reflected in the award of general damages
to Mr. Lynn.

[29] The Plaintiff/husband is
to be fully compensated for all losses resulting from the negligent actions of
the Defendant. This includes compensation for his loss of future capacity to
care for his ailing wife.

[Emphasis added.]

[166]     I
recognize the differences in the facts of the situation in Lynn as
compared to those in this case. The most significant of those is that at the
time of the accident Mr. Lynn was already providing the services to his
wife which the accident adversely affected. In this case the need for Ms.
Milliken to care of Mr. Verhulst because of his disabilities arose after
the accident.

[167]     What is
similar, however, is that the fault of the defendant caused the inability of
the plaintiff to care for a spouse.

[168]     On
principle it seems to me that on a foreseeability analysis it is immaterial
whether the services that the injured party is required to perform for a
disabled spouse did not materialize until after the defendant’s negligent act, provided
that the need to provide such services manifests before trial.

[169]     It is, in
my view, readily foreseeable that an injury to a person’s shoulder that causes
them difficulty in the carrying out of usual household tasks will cause the
same or similar difficulty in performing tasks of a related nature even if
those tasks come into existence after the injuries have been caused. In reaching
that conclusion I refer to the discussion under the heading “Damages of the
same type as could be foreseen” in S.M. Waddams, The Law of Damages, looseleaf
(Aurora, Ont: Thomson Reuters, 2010) at 14-27 to 14-28, n.154-158.

[170]     The more
difficult question to be answered in relation to Ms. Milliken’s spousal related
cost of future care claims is the extent to which they may be too remote to be
recoverable by her.

[171]    
As Rowan J. recognized in Lynn at para. 26:

… The cost of Mrs. Lynn’s
future care is not compensable in itself. The cost of her future care can only
be compensable to the extent that it is a justifiable adjunct of the future
care of the plaintiff.

[172]     In my
opinion it is that “justifiable adjunct” distinction which operates to render
the cost of Ms. Milliken’s future care in relation to some of the future
care costs that also involve Mr. Verhulst compensable.

[173]     Costs
arising solely in relation to Mr. Verhulst’s disabilities would be too remote
from the defendant’s negligence to be compensable by him.

[174]     On the
other hand, those costs which arise because of the nature of the injuries
suffered by Ms. Milliken as a consequence of the defendant’s negligence are not
only foreseeable but are also not too remote for compensation. That is so even
if the compensation for those injuries also assists her husband in some
measure.

[175]     The focus
must be on what future care costs are reasonably necessary to promote Ms.
Milliken’s health and well-being that have been negatively impacted by the
defendant’s negligence.

[176]     With that
focus in mind I turn to the specific spousal related future care claims
advanced by Ms. Milliken.

1)         New flooring

[177]     Ms.
Robertson estimated that $11,000 would be necessary to replace the carpets in
Ms. Milliken’s home with hardwood. The objective would be to ease the burden of
vacuuming the carpeted floor and coincidentally make Mr. Verhulst’s ability to
get around the home in his wheelchair easier.

[178]     The
totality of the evidence does not establish that this expenditure on new flooring
is either medically necessary or reasonable for Ms. Milliken. Although Ms. Milliken
has had some difficulty vacuuming, I am satisfied that an award for loss of
homemaking capacity will appropriately address those concerns.

2)         New kitchen

[179]     Ms. Robertson
estimated that $19,000 would be necessary to replace the existing kitchen in
Ms. Milliken’s home with a new one that would accommodate her height as well as
the stress and the pain and discomfort which overhead lifting places on her
injured right shoulder. It would coincidentally make kitchen counters more
accessible for Mr. Verhulst.

[180]     While
lower cupboards could assist Ms. Milliken in coping with overhead lifting, I
understand that she already uses a kitchen stool to assist as needed. An
expenditure of $19,000 to further accommodate her shoulder injuries would be
unreasonable. While it might assist Mr. Verhulst, I am satisfied that to the
extent it would do so without greatly benefitting Ms. Milliken precludes
recovery on the remoteness principles I have discussed.

3)         A
wheelchair-accessible vehicle assessment and van purchase and conversion

[181]     Ms.
Robertson estimated that approximately $55,000 would be necessary to purchase
and convert a van to accommodate Mr. Verhulst’s wheelchair.

[182]     This
request is medically justifiable in two ways. Firstly, Ms. Milliken is required
to drive Mr. Verhulst in the family car to many places that cannot be reached
by walking. Those include many doctor’s and physiotherapy visits. Secondly, it
is not disputed that due to her relatively short stature and her injured
shoulder the lifting of Mr. Verhulst’s wheelchair in and out of the family car not
only exacerbates Ms. Milliken’s shoulder pain but causes back problems.

[183]     While
those lifting difficulties are compensable as being foreseeable consequences of
the defendant’s negligence, I find that the amount sought to remedy those
problems is not reasonable.

[184]     While a
wheelchair-accessible van would prevent the aggravation of her shoulder
injuries and offer relief for her continued disability, there are three factors
that preclude this $55,000 claim as a cost of her future care. Those are:

1)    the benefit to
Ms. Milliken is greatly outweighed by the cost of service;

2)    the wheelchair-accessible
van would only incidentally assist her while enormously benefitting Mr.
Verhulst. The benefit to him would not only be an adjunct of assistance to her,
it would for the most part be a solution to his own out-of-home mobility issues
for which the defendant is neither liable nor responsible; and

3)    Ms. Milliken’s
needs in dealing with the wheelchair can be more reasonably assessed by the
provision of manual assistance in the loading of the wheelchair into the family
car.

[185]     I will
discuss the extent of that means of dealing with those aspects of Ms. Milliken’s
health and well-being when considering her claim for the provision of funding
for a care aide.

4)         Driving
aids comprised of pedal extensions and a spinner knob costing $550

[186]     This claim
is based on Ms. Robertson’s recommendation that to help ameliorate driving
difficulties arising from her relatively short stature and injured shoulder,
her vehicle should be modified by installation of pedal extensions and a
spinner knob for the steering wheel. It is based on the suggestion that if she
is able to sit back further in the driver’s seat less stress will be exerted on
her shoulder. I can find no medical evidence to support the need for the
suggested vehicle modifications.

5)         Care aide costs

[187]    
In her report of April 8, 2011, concerning Ms. Milliken’s post-surgery
needs, Ms. Robertson stated:

I am recommending daily assistance with home cleaning and
other tasks such as meal preparation, driving and personal care for the first 3
months post operatively (decreasing level of service will be required as Ms.
Milliken progresses in her rehabilitation). These costs reflect the services
required in addition to the biweekly services that are outlined earlier in this
report. For example, during the period when Ms. Milliken is not able to drive
she will need to have someone transport her daughter to school and take her
spouse out of the house. She will also need someone to provide personal care
assistance to her spouse. If Ms. Milliken is not provided with these services
for her family, she may risk her own surgical recovery by attempting physical
tasks too soon.

The cost for home cleaning and
personal care aide services are typically quite comparable, and can often be
provided the same worker (this is also the most cost effective option).

[188]     Ms.
Robertson projected those costs at between approximately $4,000 and $4,500
based upon employment of a care aide for two hours per day for three months
following surgery at an hourly rate of $25 to $30.

[189]     The
defendant submits that there is insufficient medical support for this claim.

[190]     I
disagree. The provision of some home care assistance in the recovery period is
also supportable by Ms. Milliken’s own evidence of her difficulty in assisting
Mr. Verhulst with his personal hygiene even in her present condition. I do not
consider that the provision of a care aide, some benefit of which will
incidentally also accrue to Mr. Verhulst, is too remote. Dr. Travlos
testified that it could be beneficial for Ms. Milliken to have home assistance
during the rehabilitative period.

[191]     Given the
complexity of the anticipated surgery and the possibility that the recovery
period could be up to six months, I find that Ms. Robertson’s recommendations
are necessary and reasonable to assist in Ms. Milliken’s recovery to promote
her future well-being. I award $4,500 for the provision of a care aide during
the post surgery recovery period.

[192]    
Concerning care aide costs and Ms. Milliken’s services for Mr. Verhulst,
Ms. Robertson stated in her report:

I have not included costs related
to hiring a care aide for Mr. Verhulst, but it is important to consider that
providing personal care to her husband may well be a significant aggravating
factor to Ms. Milliken’s right shoulder (particularly in light of her small
stature and is likely beyond her demonstrated physical abilities). It would be
helpful to obtain clarification from Drs. Travlos and Vaisler regarding whether
they feel that Ms. Milliken is physically capable of providing personal care
assistance to her spouse, and whether this type of activity (patient transfers,
wheelchair stowing etc) is recommended in the future. Care Aide Services can be
purchased through private companies (such as WeCare) for $25 – $30 / hour.

[193]     I have
previously discussed the difficulties Ms. Milliken has in handling Mr. Verhulst’s
wheelchair when assessing her claim for the purchase and conversion of a
wheelchair-accessible van.

[194]     I found
that that although the request was medically justifiable, the cost was too
great for the relatively small benefit that would accrue to Ms. Milliken as
opposed to Mr. Verhulst.

[195]     I am,
however, satisfied that in addition to the post surgery period for which I have
already ordered compensation, the provision of some assistance to Ms. Milliken
to alleviate the difficulties she has in coping with both the wheelchair and
Mr. Verhulst’s personal hygiene is also medically necessary and reasonable and
not too remote for compensation.

[196]     In my
view, that assistance can be most appropriately met by allowing some funding
for the use of taxis as necessary and the use of casual labour to alleviate the
difficulties associated with transportation of the wheelchair.

[197]     I do not
consider that the services of a qualified care aide are necessary for that
assistance and base my assessment of appropriate funding on a much reduced
casual labour rate of from $10 to $15 per hour. While I appreciate that the
timing of the use of such services will be difficult, I envisage that Ms.
Milliken will attempt to arrange the provision of such by willing neighbours
for approximately 15 hours per month, totalling about $1,750 per year
inclusive of occasional taxi costs.

[198]     I do
accept that a more qualified person will be necessary to assist or relieve Ms.
Milliken with respect to her efforts in relation to Mr. Verhulst’s personal
hygiene needs, and assess those costs at $25 per hour for about four hours per
month totalling approximately $100 per month or $1,200 per year.

[199]     On an
actuarial basis those costs (about $2,950 per year for life expectancies of
about a further 40 years and adjusted to reflect the present value of a present
lump sum award) would result in a lump sum award of approximately $60,000.

[200]     I do,
however, reduce that calculation by 50% to reflect negative contingencies. I
apply that contingency factor rather than the usual 20% factor suggested in Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), to reflect the possibility
of relief that may result from surgery, as well as the presently unknown likely
progress of Mr. Verhulst’s condition.

[201]     In result,
I award Ms. Milliken $30,000 for her future care costs arising from her
physical difficulties in providing services to Mr. Verhulst.

C)        Summary of future care cost
awards

[202]     In
summary, I have concluded that the following amounts are medically necessary
and reasonable awards required to be paid by the defendant for Ms. Milliken’s
future health and well-being because of his negligence:

1)    A physical
rehabilitation program: $5,400;

2)    Medication: $750;

3)    Post surgical
services including physiotherapy and a care aide: $6,750; and

4)    Spousal related
care and transportation assistance costs after surgery: $30,000.

Total: $42,900

Loss of homemaking capacity

[203]     In the
assessment of Ms. Milliken’s losses I have concluded that she has established
entitlement to an award for her loss of the housekeeping capacity caused by the
collision; in addition to the amount that I have allowed for the months
following surgery as a cost of future care.

[204]     I have reached
that conclusion because the evidence establishes that although Ms. Milliken has
in the past not incurred the cost of replacing her housekeeping services with
paid assistance, her ability to do that which she previously did has been
seriously compromised.

[205]     I also
find that she did not engage paid homemaking assistance because of her
inability to pay for it, not due to her lack of need. In result the work was
either not done or was done with concurrent pain and suffering and to a lower
standard than would have been the case if she had not been injured. In the case
of vacuuming, there is also some evidence that Mr. Verhulst undertook some of
that work to the extent he could do so.

[206]    
McTavish v. MacGillivray, 2000 BCCA 164 [McTavish] at para.
43, establishes that:

[43] As I have noted, the
majority in Kroeker quite clearly decided that a reasonable award
for the loss of the capacity to do housework was appropriate whether that loss
occurred before or after trial. It was, in my view, equally clear that it
mattered not whether replacement services had been or would be hired. It did
not adopt the analogy with future care as a general rule. Nor did it permit,
nor in view of the authorities to which I have referred could it have
permitted, a deduction for the contingency that replacement services might not
be hired. Allowances for contingencies are for risk factors that might make the
loss of capacity more or less likely.

[207]     McTavish
also affirms at para. 28 that the opportunity cost of a service provided even
if not incurred will often be a useful measure valuation for past and future
loss of housekeeping capacity.

[208]    
Further, in McTavish at para. 46, Huddart J.A. observed that:

[46] In sum, the possibility that
the respondent may not hire someone to perform the household duties does not
constitute a contingency of which account must be taken on the principles set
down in Athey v. Leonati, supra. A plaintiff need not
prove she will hire someone to perform household tasks in order to be fully
compensated for the loss of her ability to do the work herself.

[209]     Mr.
Maragos has submitted that Ms. Milliken should receive an award of
approximately $40,000 under this head of damage based upon present value
calculations of the cost of replacing her work with paid services.

[210]     The
defendant submits that, at most, a nominal award based only upon three months
of post surgery rehabilitation would be appropriate.

[211]     I have, as
noted, already made that award in assessing Ms. Milliken’s future care claims
so that, in result, the defendant would argue that Ms. Milliken has no
entitlement to any other loss of housekeeping capacity award.

[212]     The loss
of housekeeping capacity claims advanced by counsel for Ms. Milliken are
based upon assessments of needs and calculations of cost provided by Ms.
Robertson in her Functional Assessment and Valuation report.

[213]     I find
that there is evidentiary support for Ms. Milliken’s loss of housekeeping
capacity claim but I also find that the amount suggested by Ms. Robertson is not
in keeping with the actual loss suffered.

[214]     In part,
that overstated loss arises from the fact that Ms. Robertson’s assessment and
calculations include tasks outside of the home that, before the onset of his
incapacitating rheumatoid condition, were performed almost exclusively by Ms.
Milliken’s husband. Since then, for the most part, that work has either not
been performed or has been done gratuitously by neighbours or friends.

[215]     Ms.
Milliken does believe, however, as does Mr. Verhulst, that if she was not
disabled by her shoulder injury she could have done more to replace Mr.
Verhulst’s previous efforts. I accept that evidence. Also, as I have previously
determined in discussing Ms. Milliken’s future care costs involving spousal
related claims, she is entitled to some compensation for the impact of her
injuries upon work that would not have arisen but for Mr. Verhulst’s present
condition even though that compensation may incidentally benefit Mr. Verhulst.

[216]     Applying
that same analysis I find that Ms. Milliken is entitled to some compensation
for the work Mr. Verhulst used to do and that she could do now but for her
injuries.

[217]     The amount
of that compensation must, however, be commensurate with what she could do if
she had not been injured, and the evidence establishes that such work would be
limited to light yard work. To compensate Ms. Milliken based on all of the work
Mr. Verhulst once did but cannot do now would, in my view, improperly allow
compensation for his condition, not hers.

[218]     In all of
the circumstances and bearing in mind both the positive and negative
contingencies that may impact upon Ms. Milliken’s need for future household
assistance including the possibility of at least a partial recovery after
surgery that would increase her capacity to do household work as well as light
outside work, I find that an award of $15,000 will appropriately compensate her
for both her past and future loss of housekeeping capacity.

SUMMARY OF AWARDS

[219]     Ms.
Milliken has established entitlement to the following damage awards:

1)    Non-pecuniary
damages for her loss of enjoyment of life: $85,000;

2)    Damages for the
loss of employment bonuses she would have earned but for the collision: $3,500;

3)    Damages for her
impaired income earning capacity: $95,000;

4)    Damages to
compensate her for the cost of her future care: $42,900;

5)    Damages for her
past and future loss of homemaking capacity: $15,000;

6)    Damages for her
past wage loss (as agreed): $6,753;

7)    Special damages:
$5,513.

TOTAL: $253,666

COSTS

[220]     Unless
there are matters of which I am unaware, Ms. Milliken will have her costs
throughout on Scale B.

“Davies
J.”