IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111207

Docket: 41739

Registry:
Kamloops

Between:

Leanne Power

Plaintiff

And

Derek
Carswell and Desert City Investigations Inc.

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Power was injured in a motor vehicle accident in Kamloops, B.C.,
on November 8, 2006 (“Accident”). The Accident occurred in the intersection of
Lansdowne St. and 3rd Avenue, which is controlled by traffic signals. Ms. Power
was driving a Pontiac Sunfire westbound on Lansdowne when she struck the Jeep
which Mr. Carswell was driving northbound on 3rd Avenue, turning left onto
Lansdowne. Both liability for the accident and the quantum of damages were in
issue. Ms. Power’s claims proceeded to a 6-day trial.

[2]            
At the time of the Accident, Ms. Power was 28 years old and working
as an instructor at the Interior Academy of Hair and Esthetics (“Hairdressing
School”). At the time of trial, Ms. Power had been accepted into a program
at Thompson Rivers University (“TRU”) which she hopes will lead to a Bachelor
of Social Work and a career as a social worker.

[3]            
Generally, the defence argued that Ms. Power was not entirely
credible.

[4]            
On the question of liability, Ms. Power argued that Mr. Carswell
was wholly responsible for the Accident, while the defence argued that Ms. Power
was partially responsible for it.

[5]            
Ms. Power claims that the Accident has caused her continuous pain
in her lower back and hips, as well as periodic pain in her left shoulder and
neck. She claims that as a result of these injuries, she is no longer able to
work as a hair stylist or instructor, and must retrain. She also claims that
she has a reduced ability to look after herself and her family, and to enjoy
herself. The defence argued that Ms. Power’s symptoms were not as severe
and long-lasting as she claimed.

[6]            
The primary issue regarding damages was the extent to which Ms. Power’s
work and activities would have been restricted even if the Accident had not
occurred. The defence argued that Ms. Power would have suffered
restrictions because of her injuries in a December 2002 accident (“2002
Accident”), because of issues with her weight, and because of the physical
strain of working as a hairdresser. The defence also argued that Ms. Power’s
claim for future lost earning capacity is exaggerated, and that she failed to
mitigate her losses.

[7]            
Ms. Power argued that the proper award would be about $390,000,
consisting of $100,000 for non-pecuniary damages, $31,573 for past lost income,
$201,651.40 for retraining and lost future earning capacity, $55,292.05 for the
cost of future care, and $406.69 for special damages.

[8]            
The defence argued that the proper award would be about $60,000,
consisting of $50,000 for non-pecuniary damages, $501 for past lost income, $25,000
for lost future earning capacity, and $5,000 for cost of future care, all
reduced by 25% for failure to mitigate.

[9]            
I am grateful to counsel for their focussed and efficient presentation
of this case.

FACTS

a) Prior to the accident on November 8, 2006

[10]        
Ms. Power finished grade 12 in Valemont, B.C. in 1998, but was not
able to graduate because she had not completed sufficient credits. In the
courses she took in grades 11 and 12, she had an average grade of about 74%.
She wanted to become a residential care aid, but when a family friend suggested
she pursue work as an aesthetician, she decided to do so.

[11]        
Ms. Power has struggled to reduce her weight since she became an
adult.

[12]        
Ms. Power moved to Kamloops in 1999. She completed a training
program to be an aesthetician which lasted about six months. Following that,
she completed a training program lasting about ten months at the Hairdressing
School. Ms. Power received high grades at the Hairdressing School. She
took a further examination and became a licensed hair stylist.

[13]        
The head of the Hairdressing School was Ms. Stark, who was
impressed with Ms. Power’s talent as a hairdresser, and who thought Ms. Power
had the potential to be an instructor at the Hairdressing School one day.

[14]        
Ms. Power worked for about a year as an aesthetician and hair
stylist, and then moved to a second job where she was primarily a hair stylist.
When she had worked in the second job for about 6 months, Ms. Stark
offered her a teaching job at the Hairdressing School and Ms. Power accepted.

[15]        
Ms. Power began working at the Hairdressing School in 2002. There
were essentially three roles for instructors: teaching theory, teaching
practical skills, and supervising practical work. When teaching theory, the
instructor would lecture using a white board and props. When teaching practical
skills, the instructor would demonstrate hairstyling techniques on a mannequin
head or a student. When supervising practical work, the instructor would walk
around the floor where students were styling the hair of customers or each
other and observe, correct, and demonstrate as appropriate.

[16]        
Usually Ms. Power would be on her feet for most of her working days.
Her working hours were 8:30 a.m. to 4:30 p.m. four days a week and 8:30 a.m. to
8:30 p.m. the fifth day. Class size varied from about 4 to 12 students, but
when the students were doing practical work, several classes were combined and
there were often about 20 students. The work which was most physically
demanding for the instructor was supervising practical work, also called working
“on the floor”. The least physically demanding work for the instructor was
working in the classroom teaching theory.

[17]        
Ms. Power’s plan was to work hard at the Hairdressing School, and
if she stopped enjoying the work or for some other reason could not continue,
to pursue a career as a residential care aid.

[18]        
By December 2002, Ms. Power was working 32 hours per week for the
Hairdressing School. She was considering breast reduction surgery to relieve
pressure on her neck, but her doctor wanted her to lose weight before
undergoing such surgery.

[19]        
In the 2002 Accident, Ms. Power was in a car, wearing a seatbelt, when
the car struck another vehicle in an intersection. As a result of the accident,
Ms. Power had problems with her shoulders and neck, primarily on her right
side, and some pain in her lower back.

[20]        
It was not entirely clear how long Ms. Power stopped working after
the 2002 Accident. It appears that she was off work completely for about two
months. Ms. Power testified that she returned to work on a gradual basis,
increasing her hours over a period of about two months. She testified that she
found it difficult to stand for long periods or to hold up her arms for long
periods without aggravating her right shoulder. She testified that she was
still able to do the majority of her duties, but her work had to be modified,
and Ms. Stark would help her from time to time over a period of about two
years after the accident.

[21]        
Ms. Power impressed Ms. Stark with her talent and ability to
teach both theory and practical skills. Ms. Power redeveloped the teaching
program. Ms. Power received very good to excellent performance evaluations
in the records which were in evidence. In March 2003, her scores were very good
to excellent. Starting in November 2004, all her ratings were excellent.

[22]        
Ms. Power loved her work as a hairstyling instructor and was very
good at it.

[23]        
Ms. Power’s employment income in 2003 was about $14,700. She also
received about $2,600 in employment insurance benefits.

[24]        
Ms. Power’s friend, Ms. McKay, began working as an instructor
at the Hairdressing School in July 2004. Ms. McKay testified that she did
not observe Ms. Power being limited in performing any of the duties of
instructor, although from time to time Ms. Power would complain of soreness
and take ibuprofen or Tylenol.

[25]        
Ms. Power’s employment income in 2004 was about $23,000.

[26]        
Ms. Power testified that by about 2005 she was on track after the
injuries she suffered in the 2002 Accident, and simply had occasional flare-ups
from overuse. She testified that her main concern was her right shoulder blade,
and that she just had a periodic dull ache in her lower back and hips. She
testified that she may have modified some tasks to suit her physically.

[27]        
Ms. Stark wrote a letter dated June 10, 2005, addressed “to whom it
may concern.” This was for a lawyer, in connection with Ms. Power’s claim
arising from the December 2002 accident, which settled at some point in 2005.

[28]        
Ms. Stark’s letter describes Ms. Power’s work history and
abilities. Ms. Stark wrote that “in December of 2002, [Ms. Power’s]
accident had left her with major back and shoulder pain.” She described Ms. Power’s
performance on returning to work as “extremely limited”, writing that she was
not able to do any floor work because of pain on lifting her arms. She wrote
that Ms. Power was not able to do the same workload as she had previously.
Ms. Stark wrote that Ms. Power taught theory classes, but had
difficulty standing or sitting for long periods of time.

[29]        
Ms. Stark wrote that Ms. Power returned to practical teaching
because the Hairdressing School needed that work performed, but that Ms. Power
was in pain and took extra breaks and missed work as a result.

[30]        
Ms. Stark wrote that:

[Ms. Power] has continued to teach the theory and
practical work but can only do modifies [sic] amounts at one time. She has a
problem with the practical part still but struggles through it. …

My floor supervisor recently informed me she was leaving and
the position could have been [Ms. Power’s]. She would be amazing in that
position and it would be the last step for her to take prior to running things
here at the school. Unfortunately, [Ms. Power] is not able to take this
position on because it involves major hands on teaching and she is in no way
physically able to take that position on. This is so unfortunate as I had to
hire someone else to fill the position.

This was not only a set back to [Ms. Power’s] career but
it also would have meant a pay raise for her. I feel that the accident that
Leanne had has been a major set back for her career. She will never be able to
function the way she did before.

If [the Hairdressing School] ever closed its doors, [Ms. Power]
would struggle to ever work in the industry again. … The accident jeopardized
[Ms. Power’s] career as she is limited now to how she’s able to perform as
not only an instructor but as a stylist.

To even lift her arms cause her
pain over a short period of time. She continually has to pace herself. My
experience is that as we get older our bodies can’t tolerate as much and this
industry is hard work and I can’t see [Ms. Power] doing this for any long
period of time….

[31]        
Ms. Power testified that in June 2005 she may have had some
limitations which would have affected her ability to run the Hairdressing
School, but that for the most part she had healed quite well. She agreed that a
fulltime job as a hair stylist would have been very hard on her, but testified
that she was able to work as an instructor with accommodations.

[32]        
Ms. Stark testified that in fact she did not hire someone else for
the position of floor supervisor, and that she moved Ms. Power to that
position after June 2005. Ms. Stark testified that initially she had
concerns about whether Ms. Power could physically handle that job, but Ms. Power
surprised Ms. Stark and ended up being able to handle the position.

[33]        
Ms. Power and her family moved into a townhouse in July 2005. Ms. Power
painted all the upstairs walls and baseboards and changed light fixtures,
although she obtained help with the wiring.

[34]        
Ms. Power’s employment income in 2005 was about $25,600.

[35]        
Ms. Power continued to work at the Hairdressing School as an
instructor, including as a floor supervisor. She was working about 41 hours a
week and earning $15 per hour. She again worked 8:30 am to 4:30 pm for four
days per week, and 8:30 am to 8:30 pm on the fifth day. Because of lunch breaks,
she was paid 7.5 hours for each of the four days and 11 hours for the fifth
day.

[36]        
In February 2006, Ms. Power saw Dr. Howie, who was then her
family doctor. He made a note that she had issues with her weight and was
having difficulty doing her job as a hairdressing instructor. Ms. Power
agreed that her weight in general has always played a factor in her job as a hairdressing
instructor, but testified that she could not say whether her shoulder and neck
were concerns at that time. She agreed that the pressure from her large breasts
was an issue at that time.

[37]        
Ms. Power first saw Dr. McLaren on March 1, 2006. He recorded
that she had decreased mood, increased weight, poor sleep, restlessness, and
worry. He did not make any notes which related to complaints about the neck,
back or shoulders. Ms. Power testified that she has seasonal depression
which afflicts her from time to time.

[38]        
For a couple of days on four occasions in the period from May to October
2006, Ms. Power assisted a neighbour in her townhouse complex with the
care of a baby and toddler, and did not have difficulty doing so.

[39]        
In May 2006, Ms. Hatcher began working at the Hairdressing School
in an administrative position. She shared a small office with Ms. Power
and worked with her closely on a daily basis. Ms. Hatcher observed Ms. Power
to be very exuberant and passionate in her work. Ms. Hatcher did not
observe Ms. Power displaying any physical limitations in her work. Ms. Hatcher
did not learn that Ms. Power had been injured in an accident in December
2002 until she reviewed employee files in 2010.

[40]        
Ms. Power testified that, by the time of the Accident, she had rare
lower back pain and occasional flaring of a knot under her right shoulder blade
from overuse.

[41]        
Ms. Power was an enthusiastic, bubbly individual who loved her work
as a hairdressing instructor. Her friend, Ms. McKay, was still an
instructor at the Hairdressing School in the first days of November 2006. Ms. McKay
testified that Ms. Power was able to do everything the instructors did,
including demonstrating all the techniques. Ms. McKay and Ms. Power
used to go for lots of walks, and Ms. Power did not have any problem
completing the walks.

[42]        
Ms. Stark testified that, in the period just before the Accident, Ms. Power’s
physical abilities were not interfering with her work, apart from a few little
things.

  b) The November 8, 2006 Accident

[43]        
Ms. Power and Ms. McKay went to the Hairdressing School and
did some unpaid work in the evening of Wednesday, November 8, 2006. At around
11:45 p.m., Ms. Power was driving a 2003 Pontiac Sunfire 4-door sedan in
which Ms. McKay was a passenger.

[44]        
There was little traffic. There was moisture on the road, but it was not
raining or snowing.

[45]        
Ms. Power was driving west on Lansdowne toward 3rd Avenue in
Kamloops, B.C., with Ms. McKay in the front passenger seat. Ms. Power
was wearing a seatbelt and the head rest was adjusted for her height. Lansdowne
is a one way street west. Ms. Power was driving in the most southerly
lane, being the furthest lane to her left as she drove. There is a tall
building on the southeast corner, which obscured Ms. Power’s view looking
south on 3rd Avenue.

[46]        
Mr. Carswell was working that night as a mobile security officer
for Desert City Investigations Inc. He was driving his employer’s black Jeep
north on 3rd Avenue, approaching Lansdowne, and was planning to turn left onto
Lansdowne. Mr. Carswell was driving in the most easterly lane of 3rd
Avenue, being the furthest lane to his right.

[47]        
On the south side of Lansdowne, 3rd Avenue is one way north.
On the north side of Lansdowne, 3rd Avenue is a two way street.

[48]        
The accident occurred in the intersection. The point of impact was at
the front of Ms. Power’s Sunfire and the rear passenger side of the Jeep.

[49]        
Ms. Power testified that when she entered the intersection, her
light was green, and it had turned green three or four car lengths before she
reached the intersection. She testified that she was travelling less than 50 km
per hour, and she saw the Jeep briefly before hitting it. She testified that when
she saw the Jeep, she applied her brakes and tried to swerve to the left, but
still struck the Jeep. She testified that her head hit the headrest and her
shoulders hit the top of the seat. She testified that the Jeep went up on two
wheels and continued left before stopping. She testified that she was not able
to get out of her car until someone bent open the door for her. She testified
that Mr. Carswell said that he was very sorry and he was not paying
attention. She went by ambulance to hospital.

[50]        
Ms. McKay testified that she checked the traffic light when the car
was about two to three car lengths before 3rd Avenue and the light was green.
She testified that she did not see the light turn green. Ms. McKay
testified that she saw that the Jeep was not stopping, and she shouted Ms. Power’s
name, and at the same time Ms. Power started braking, but the vehicles
collided. Ms. Mckay thought that the Jeep was in the most easterly lane.

[51]        
Mr. Carswell testified that his light was yellow as he approached
the intersection intending to turn left. He testified that he did not see it
turn from green to yellow. He testified that he was signalling a left turn. At
trial, he estimated his speed at 20 or 30 km/hr, while on examination for
discovery he had estimated it at 15 km/hr. He testified that he saw the Sunfire
only a split second before the collision. He testified that the Sunfire struck
the right rear quarter panel of the Jeep, causing the jeep to rock onto the two
driver side wheels and then return to four wheels. He observed one of the
Sunfire’s front doors to be crumpled and stuck, so he assisted in opening it.
Mr. Carswell testified that he did not see a red light, and may have said
at the accident scene that he did not see a red light.

[52]        
Ms. Allen was working as a security guard at the time of the
accident. She had chased an intruder by foot and in her vehicle but he escaped.
She then drove southbound on 3rd and stopped at the intersection with Lansdowne
for a red light. She testified that she saw the collision, and that it occurred
before her light changed from red to green. She estimated that the Jeep was
travelling 55 or 60 km/hr, and the Sunfire about 40 km/hr. She testified that
the Jeep was not displaying a left turn signal. She testified that after the
accident, Mr. Carswell said that his light may have been red.

[53]        
Mr. Storry was also a security guard. He was not on shift at the
time of the accident, but he had just been visiting with Ms. Allen. He was
standing near the corner of 3rd and Lansdowne at the time of the accident. He
heard the sound of the collision and turned suddenly. He testified that the
traffic light for Ms. Power’s vehicle was green immediately after the
collision.

[54]        
On the day of the Accident, Ms. Power was 28 years old.

 c) Following the November 8, 2006 Accident

[55]        
Ms. Power testified that at the accident scene she felt pressure on
her chest, difficulty breathing, pain in her lower back, a lump on the back of
her left shoulder and a smaller one in front, pain in her neck generally but
more on the left, pain in her ankle, and pain down her arm to her wrist.

[56]        
Mr. Carswell was given a violation ticket for failing to stop at a
red light at an intersection. He understood that it was not an admission of
guilt to pay the fine, and he paid it.

[57]        
Ms. Power was examined at the hospital, including by x-rays of her
chest and left arm. She was discharged with medication.

[58]        
Ms. Power testified that the morning following the Accident, she
had a lot of pain and stiffness and restricted movement. She did not go to
work. Her doctor, Dr. McLaren, was fully booked with appointments, so she did
not go to see him until November 10, 2006.

[59]        
On November 10, 2006, Ms. Power did not go to work. Ms. Power
reported to Dr. McLaren that she had pain, more on her left side including
her left shoulder, arm, and along the arm into her wrist, and problems with her
left hip. She reported difficulty breathing and bruises on her chest. Dr. McLaren
prescribed medication, which Ms. Power purchased and used.

[60]        
The lump on Ms. Power’s left shoulder discoloured after a period of
time and then went away.

[61]        
Ms. Power’s Sunfire was repaired at a cost of about $7,300. The
driver side of the front bumper had fallen off and the front end was crumpled. Desert
City’s Jeep had a dented rear right side bumper and was repaired at a cost of
about $1,300.

[62]        
Ms. Power returned to work on the Monday following the Accident,
which was November 13, 2006. The time she took off before returning to work resulted
in a loss of $510 in gross pay. She did not believe that she could afford to
take more time off work. She also thought that Ms. Stark would allow her
to modify her day to enable her to work.

[63]        
In fact, Ms. Stark took over some of Ms. Power’s duties to
give her relief. Ms. Power had difficulty standing for long periods and
holding her hands up in one position for extended periods. Ms. Stark and
the two other instructors shifted the work so that Ms. Power would spend
less time on her feet and less time with her arms at or above chest level.

[64]        
Ms. Stark completed a certificate of earnings dated November 29,
2006, in which she certified that Ms. Power had lost $510 in gross income
to that date. She included an explanatory letter in which she described the loss
of 11 hours of work on November 9 and 16, of 7.5 hours on November 10, 2 hours
on November 14, and 2.5 hours on November 22.

[65]        
In addition, Ms. Power frequently took days off work. The time she
took off work was not documented.

[66]        
Ms. Power became less active. She had difficulty walking. She did
not do much apart from work and then go home.

[67]        
Ms. Power had three physiotherapy treatments in November 2006, and
then one in each of December 2006 and January 2007.

[68]        
Ms. Power saw Dr. McLaren again on November 20, 2006. She felt
a bit better compared to how she had felt initially. She noticed that her left
hand was starting to swell, and that she had mild pain going down her left leg.
These were new symptoms and concerned Ms. Power. Dr. McLaren
recommended that Ms. Power work half days for one to two weeks, but Ms. Power
worked full time.

[69]        
Ms. Power took some of the pain medication prescribed for her. She
also used prescription medications which had been prescribed to friends or
family. She did so to avoid paying for prescription medications and because she
got relief from the medications provided by others.

[70]        
Ms. Power’s employment income in 2006 was about $28,200.

[71]        
In January 2007, Ms. Power reported to Dr. McLaren that she
was suffering significant hip pain which continued even with medication and
that seemed to be getting worse. She reported continuous pain in the centre of
her lower back, and that the pain would increase depending on activity and
would travel into her hip and buttocks and sometimes past her knee. She reported
that her left knee was always painful, but other problems had subsided.

[72]        
Dr. McLaren referred Ms. Power to Dr. Navratil, a
rheumatologist. Dr. McLaren also referred her for further physiotherapy, but Ms. Power
did not believe it was assisting her and stopped going. She did not want to
take the time off work or pay the user fee for the treatment when she thought
it was not helping her.

[73]        
Dr. McLaren also prescribed pain medication for Ms. Power. She
did not fill this prescription or a number of later prescriptions, and did not
tell that to Dr. McLaren. She also lied to experts who examined her in
connection with this litigation, telling them that she was taking the
prescribed medication. She told them the correct amount that she was taking,
but not the correct drug. She did that because she was using drugs which had
been prescribed to other people, and she did not want to cause the people who
gave her drugs to get into trouble. One person had provided her with morphine
tablets.

[74]        
Dr. McLaren again recommended to Ms. Power in January 2007
that she work part time, but she resumed fulltime work in February 2007.

[75]        
Ms. Power saw Dr. McLaren in March 2007 and told him that she
was not pursuing physiotherapy, and he said he would look further into other
treatment. Dr. McLaren recommended that Ms. Power obtain a personal
trainer and start using a gym. She did not pursue this option until early 2008.

[76]        
Dr. Navratil saw Ms. Power on April 3, 2007. He diagnosed her
with “chronic myofascial pain in low back, buttocks and hips”. He recommended
cortisone injections and that she reduce her weight.

[77]        
Dr. Navratil injected cortisone into both of Ms. Power’s hips
by a procedure in hospital in April 2007. Ms. Power found the injection
painful during the 15 minute procedure and for about a day afterwards. The
injection reduced the pain from the injury for a couple of weeks. It did not completely
relieve the pain, and after a couple of weeks, she reported that the pain was
back at the pre-injection level or worse.

[78]        
Dr. Navratil also ordered a CT scan. The scan was conducted on July
17, 2007, and showed that Ms. Power had an L4-5 disc herniation which had
not compromised the ligament.

[79]        
Ms. Power had cortisone injections a second time in July 2007, and
suffered pain as she had following the first injection. This time the relief
lasted days or a week, and then the pain returned to the previous level or
worse.

[80]        
Ms. Power testified that she was also still suffering pain in her
left arm and her neck more on the left side than the right, but that the
greatest pain was from her hips and lower back.

[81]        
Ms. Power worked as school manager until August 16, 2007. Ms. Stark
considered that Ms. Power did very well handling the management
responsibilities.

[82]        
Ms. Power resigned from her position as school manager on August
16, 2007, and asked to return to the position of instructor. In her letter of
resignation as manager, she stated that there were many reasons, but the
foremost reason was that she felt she was not leading the school in the
direction that it needed to go. Ms. Power testified that giving up the
school manager role meant a reduction in some paperwork duties, but did not
substantially change her duties, and did not change her remuneration.

[83]        
Ms. Power worked as one of three instructors. She still loved the
work at the Hairdressing School, but found the work painful, even though the
other instructors were often able to assist her and give her breaks.

[84]        
Dr. McLaren’s notes of Ms. Power’s visit on September 19, 2007
refer to left and right shoulder pain with prolonged haircutting. They do not
refer to lower back pain. Ms. Power testified that the back pain may not
have been predominant at that point, but that the problem with her hips and
lower back was a continuing problem and Dr. McLaren was already aware of
it. She also testified that having pain in her left shoulder was much worse
than she had felt before and that is why she raised it with her doctor.

[85]        
Ms. Power left the Hairdressing School in October 2007 and began
working as a sales representative for a beauty products firm known as “Oasis”.
She hoped that the work as a sales representative would be better for her
physically and permit more breaks.

[86]        
Ms. Power’s duties as a sales representative required her to drive
to client premises and to deliver and receive smaller shipments of products.

[87]        
Ms. Power was paid on a commission basis, and she earned more
working for Oasis than she had working for the Hairdressing School. She also
received two holiday trips.

[88]        
Ms. Power testified that she found that the work as a sales
representative was not good for her physically. She reported difficulty
carrying products to and from her car. She testified that she had trouble
spending long periods in the car travelling to client premises in locations
like Salmon Arm, Merritt, Revelstoke, and Princeton. She testified that she felt
that her pain was increasing.

[89]        
Ms. Power’s employment income in 2007 was about $36,100.

[90]        
Ms. Power first saw Dr. Singh, a neuorosurgeon, on January 9,
2008, on referral from Dr. McLaren. By that time, Ms. Power reported
that she was still having pain on the left side of her neck and into her
shoulder, which would radiate into her left arm, but her hips and lower back
were causing her the worst pain. Dr. Singh examined her, and found that
her range of motion was slightly restricted bending both forwards and
backwards. Dr. Singh recommended that she try epidural cortisone
injections, which could reduce the inflammation around the nerve root. He
referred her to Dr. Diehl, anesthetist, for such injections. Dr. Singh
also recommended that Ms. Power lose weight.

[91]        
Ms. Power first saw Ms. Carter, a personal trainer, in January
2008. They worked together for a few months and developed a gym program for Ms. Power.

[92]        
Ms. Power had a repeat CT scan on February 10, 2008 which did not
show any change to the disc bulge.

[93]        
Ms. Power resigned from her position as an Oasis sales
representative in about September 2008. She did so because she felt that she
could not keep up with the demands of the job because of her injuries.

[94]        
Ms. Power told Ms. Stark that she was resigning as a sales
representative. Coincidentally, one of the Hairdressing School instructors was
leaving, and Ms. Stark hired Ms. Power to return to the Hairdressing
School as an instructor. Ms. Power was paid the same salary as when she
had left, $17 per hour, and received the benefits and vacation credit that she
had at the time she left the Hairdressing School.

[95]        
Ms. Power saw Dr. Singh again on September 17, 2008. Again, he
found that she had a mildly restricted range of motion in the back. He found a
slight improvement in her ability to raise her leg straight.

[96]        
Ms. Power testified that she found it physically difficult to
resume her position as instructor. She was now one of only two instructors.
Ms. Stark stepped back from the business and there was a school manager
who handled the day to day matters. There was a greater turnover of
instructors.

[97]        
Ms. Power testified that, after a period, her pain level reduced
slightly and then stabilized. She reported that she continued to have pain on a
daily basis.

[98]        
Ms. Power’s staff performance evaluation of October 20, 2008
consisted entirely of excellent scores, as did the evaluations of January and
November 2009.

[99]        
Ms. Power had three epidural cortisone injections. The first was in
November 2008 and required a half-day stay in hospital. She testified that she found
them extremely painful and had trouble walking afterwards and stayed in bed for
about one and one-half days. She testified that the first injection helped her
significantly once she had healed from the injection. She testified that she
could sleep properly and felt some hope of a resolution of her pain. However,
she testified that the pain relief lasted only about five weeks, and then the
pain returned.

[100]     Around
late 2008, Ms. Power went on the “Atkins” diet. She lost about 17 pounds,
but stopped the program and regained the weight.

[101]     Ms. Power
had a second epidural cortisone injection in December 2008. She testified that
the pain of the procedure was a little less, and that this injection reduced
her pain for a few weeks.

[102]     Ms. Power’s
employment income in 2008 was about $39,900, inclusive of commission income.
She claimed about $9,200 in employment expenses for the purposes of income tax
reporting.

[103]     Ms. Power
had the third epidural cortisone injection in January 2009. She testified that,
like the second injection, the pain was not too severe and did not last as long
as the first. She testified that this injection reduced the pain from her
accident for a week or two.

[104]     Ms. Burden,
occupational therapist, examined Ms. Power in June 2009 for one day in Ms. Burden’s
office, and visited Ms. Power in her home. Ms. Power reported that after
doing the physical tasks, she was exhausted, and was in enough pain in her neck
and shoulder and lower back and hips that she stayed in bed for about one and
one-half days.

[105]     In June
2009, Ms. Power’s job at the Hairdressing School was changed so that she
received Fridays off with pay because of her physical difficulties. Ms. Stark
had offered Ms. Power a raise, but Ms. Power wanted more time off
instead. These hours did not work out for the Hairdressing School and Ms. Power
returned to working five days a week, but at $18 per hour.

[106]     Around
late 2009, Ms. Power attended the Weight Watchers program in an effort to
lose weight. She lost about 15 pounds but did not find it easy to stay on the
plan.

[107]     Ms. Power’s
employment income in 2009 was about $33,300.

[108]     By 2010, Ms. Power
was struggling with her work at the Hairdressing School. There was a new group
of instructors who were learning their own jobs and were not able to assist Ms. Power
by taking over much of her work.

[109]     Ms. Power
left her position at the Hairdressing School on June 17, 2010. She was earning
$18 per hour at the time. She was planning to resign because she felt that she
was continually struggling on a physical level and did not have adequate
support from management or the other staff. She did not have another position
to go to. There were also changes at the Hairdressing School, and as a result Ms. Stark
laid off Ms. Power from work.

[110]     Ms. Power
started collecting unemployment insurance benefits.

[111]     Ms. Power
ran a very small salon in a retirement home over the period from about August
2010 to January 2011. She worked one or two days a week, with two to five
clients per day. Her clients were the elderly residents of the retirement home.
Despite the small workload, Ms. Power testified that she found working as
a stylist to be physically difficult. She testified that her back pain
increased, apparently from working on a concrete floor with a small low sink in
a small area. She testified that the clientele could have difficult physical
problems, such as requiring a wheelchair, which required Ms. Power to assume
difficult postures. Ms. Power testified that she had increased pain in her
left shoulder.

[112]     In
September 2010, Ms. Power saw Dr. McLaren and complained of right
heel pain. He prescribed a pain reliever, which she took, and which helped all
her symptoms. Dr. McLaren also recommended that Ms. Power look into
orthotics, and try to get more rest.

[113]     Ms. Power
investigated her options and concluded that she would pursue a program leading
to a Bachelor of Social Work degree. She followed the steps necessary to obtain
admission to the human services diploma program at TRU. She would like to
complete the full bachelor program, because she thinks it would enhance her job
opportunities.

[114]     Ms. Power
was examined on November 8, 2010, by Dr. Padilla, a neurosurgeon, at the
request of the defence.

[115]     Ms. Power’s
employment income in 2010 was about $17,100. She also received about $9,800 in
employment insurance benefits. Her income tax return includes a page entitled
“record of employment and earnings, August 31, 2010 to January 19, 2011”, which
relates to her work at the retirement home. It states that her last day of work
was January 19, 2011, due to lack of work.

[116]     Ms. Power
has requested and received gifts from family members of items like a massaging
heat mat for her car and bed and a contour pillow. It was her position that
desiring such gifts demonstrates that she had continuing pain.

[117]     Ms. Power
stopped working in the retirement home in January 2011. There were several
reasons, including the physical difficulty she had with the work.

[118]     There were
further renovations to the Power’s townhouse following the Accident, primarily
involving the basement, but Ms. Power did not do any of the work because
of her limitations.

[119]     In
February 2011, Ms. Power told Dr. McLaren that she had not been
taking the drugs prescribed to her and instead had been using drugs prescribed
to others.

[120]     In
February 2011, Ms. Power and her common law spouse, Mr. Whittingstall,
started a new eating plan. By the time of trial, Ms. Power had lost about
50 pounds and Mr. Whittingstall had lost almost 60 pounds. Ms. Power
would like to lose more than a further 50 pounds. She has not noticed any
changes in her symptoms resulting from the weight loss.

  d)       At trial

[121]     At the
time of trial, Ms. Power was 33 years old. She lived in a townhouse in
Kamloops with Mr. Whittingstall and her 14 year old daughter. She
regularly does exercises suggested by Ms. Carter, and uses her own set of
weights and exercise balls. She walks at least every other day. She can walk
for about 45 minutes before she needs a break or risks pain the following day,
but she seldom walks on inclined surfaces. She uses a computer fitness program
for stretching and weights.

[122]     Ms. Power
will now occasionally style a friend’s hair, but only on a day that she is
feeling up to it, and by taking many breaks. She has trouble sitting for
extended periods in one position. She uses pillows, medications, and frequent
breaks on long drives. She has stopped bowling. She has significantly reduced
the time she dances and socializes.

[123]     The lower
level of Ms. Power’s home has the laundry facilities, her daughter’s
bedroom, and a second living room. The strata corporation cares for the common
property and looks after snow removal, although individual owners shovel a path
to their cars while awaiting the snow removal. The townhouse has a garden area
in the front and back. Mr. Whittingstall filled two small backyard plots
with gravel recently, because Ms. Power did not want to maintain the
gardens there because of the pain of working at ground level. She is maintaining
some vegetable and flower plants in pots.

[124]     Ms. Power
testified that she has had difficulty with home chores since the Accident. In
particular, she complains of pain in her lower back from leaning over a sink,
loading and unloading a dishwasher, folding and carrying laundry and carrying
laundry soap, moving heavy items into and out of the oven, carrying groceries,
ironing, cleaning, and vacuuming. She complains of pain in her left shoulder
from moving wet laundry between the washer and dryer. She no longer cleans the
bathrooms and relies on Mr. Whittingstall or her daughter to do it and
also to carry laundry and laundry soap up and downstairs. As well, she has had
to modify how she does some of the chores, such as by using a rolling chair to
access cupboards and spreading out cleaning work over a period of days.

[125]     Ms. Power
testified that she has difficulty with personal care chores like blowdrying her
hair and applying makeup and that she has modified her hairstyle and her
postures to do those things. She testified that she has also stopped wearing
stylish shoes, because wearing high heels causes her lower back pain.

[126]     Ms. Power
reported that she sleeps on a king size bed with a memory foam topper, and that
without the memory foam, her hip and back pain are increased. She reported that
she no longer takes baths, instead showering, sometimes twice a day.

[127]     Ms. Power
is less active with family events than she was before the Accident. She
testified that she cannot go up and down water slides without pain or walk long
distances on uneven surfaces. She stopped camping with a mattress and now
travels with her family in a tent trailer. She testified that she has trouble
sitting on firm chairs for extended periods, or sleeping in unfamiliar beds.
She travels with at least two pillows.

[128]     Ms. Power
testified that she now has constant pain, which is like a toothache rather than
a dull ache. She is less energetic than she was before the November 8, 2006
accident, and becomes frustrated more easily. She is less physically active.

[129]     At trial, Ms. Power
was using extra strength ibuprofen and Tylenol every four to six hours during
the day, and taking stronger medications in the evening three to five times a
week, depending on her pain level. She sometimes takes Robaxacet. She limits
the use of stronger medications to the evening so that she will be more alert
during the day, but will sleep better at night. She testified that her
predominant pain is in her lower back and hips, and generally her left hip. She
testified that she also has a lot of problems with her left shoulder and at
least twice a week suffers pain radiating to her knee. She testified that she occasionally
has problems with her neck.

[130]     Ms. Power
was accepted into the human services diploma program at TRU for the fall of 2011.
This is a two-year degree program, which can then be followed by a further two
years leading to a Bachelor of Social Work degree. The tuition cost is
estimated to be $4,500 for each of the four years. The cost of books and
supplies is estimated to be $1,300 for each of the four years.

[131]     Ms. Power
would like to pursue counselling and reinstate her gym membership. She would
like to use thermal wraps for sleeping. She purchased a memory foam topper for
the bed, and testified she believes it has helped her sleep since the accident.
She would like a digital voice recorder to record lectures so that she does not
have to sit and make notes continually. She would also like an ergonomic work
station and a wheeled book bag. She would like assistance for heavy cleaning.

Medical evidence

[132]     Ms. Power
relied on the evidence of her family physician, Dr. McLaren; her treating
neurosurgeon, Dr. Singh; an occupational therapist, Ms. Burden; and
an economist, Mr. Carson. The defence relied on the evidence of Dr. Padilla,
a neurosurgeon.

  a)       Dr. McLaren, family physician

[133]     Dr. McLaren
was accepted as able to give opinion evidence in the field of family medicine.
His opinion was based on his examinations of Ms. Power, including taking
her history, and consultation reports from other treatment providers.

[134]     Dr. McLaren
diagnosed Ms. Power with moderate soft tissue injuries to her chest, left
neck, back, left shoulder, lower back, and left leg. He also diagnosed her with
a subligamentous L4-5 disc rupture resulting in chronic back pain. Dr. McLaren
suspects that her back pain will be permanent, that she will struggle to find
gainful employment which will not aggravate her back, and that she will have
problems with housework and lifting items. In his opinion, her back pain may
decrease if she is successful in losing significant weight.

[135]     In Dr. McLaren’s
opinion, the L4-5 disc herniation is more likely than not to have been a result
of the Accident.

[136]     Dr. McLaren
prescribed medication for Ms. Power which she did not take. He also
recommended physiotherapy, but she attended only a few sessions. He recommended
that she see a personal trainer about a year before she saw a personal trainer.
He recommended that she lose weight.

[137]     Ms. Power
did not present to Dr. McLaren any problems arising from the 2002 Accident,
although she began seeing him about eight months prior to the Accident.

b) Dr. Singh, treating neurosurgeon

[138]     Dr. Singh
was accepted as qualified to give opinion evidence as a neurosurgeon. He first
saw Ms. Power on January 9, 2008, on referral from Dr. McLaren. Dr. Singh
saw Ms. Power again on September 17, 2008, at the request of Ms. Power’s
counsel. Dr. Singh wrote reports dated October 24, 2008, March 7, 2011,
and March 24, 2011. He based his opinion on the history he received from Ms. Power,
his two examinations of her, and his review of medical records including a CT
scan.

[139]      Dr. Singh
diagnosed Ms. Power with a subligamentous disc herniation at L4-L5. Dr. Singh
wrote that the central disc bulge at L4-L5 may be responsible for a lot of Ms. Power’s
symptoms, but the result of an operation is unpredictable, with the chance of
success less than 50% and with a chance that the symptoms will get worse. Dr. Singh
does not recommend surgery at this time, and does not anticipate recommending
surgery unless Ms. Power develops critical nerve root signs. In his opinion,
the chance of that happening is perhaps less than 20%.

[140]     In Dr. Singh’s
view, Ms. Power will probably have to live with the disability that she
has. In his opinion, she will be compromised in her ability to do a job
requiring a lot of sitting, lifting of heavy objects, or being in awkward
postures for prolonged periods of time. He recommended that she exercise and
try to lose weight. In his opinion she might be limited in doing heavy physical
work or vacuuming at home, but could probably manage it if she took her time
and changed positions frequently.

[141]     In Dr. Singh’s
opinion, the most likely cause of Ms. Power’s disc herniation, as well as
the subsequent back strain and myofascial pain, is the Accident. In his view
the shoulder area discomfort is most likely related to the seatbelt, with some
muscular ligament injury.

[142]     In Dr. Singh’s
opinion, if Ms. Power were to lose weight, there is a very good chance
that she can be more active at home and work. He also testified that sitting
was one of the worst positions for a person with a disc bulge to be in, because
the disc has a tendency to bulge out more when a person is seated.

  c)       Dr. Padillo, examining neurosurgeon 

[143]     Dr. Padillo
testified at the request of the defence. He examined Ms. Power on November
8, 2010, and prepared a report dated January 19, 2011, based on his examination
and interview of Ms. Power and his review of medical records.

[144]     Dr. Padillo
concluded that Ms. Power had chronic myofacial pain related to her back,
buttocks, and hip from the 2002 Accident. He based this on correspondence from Dr. Howie
in May and June 2004, which was not in evidence. Dr. Padillo did not have
any information other than Ms. Power’s history about her condition between
June 2004 and the Accident.

[145]     In Dr. Padillo’s
opinion, the Accident may have temporarily aggravated the pre-existing chronic
myofacial pain, but did not cause any present problems or residual
disabilities. As a result, he concluded that the Accident will not affect Ms. Power’s
ability to work in the future.

[146]     Dr. Padillo
agreed at trial that on November 8, 2010, Ms. Power was suffering
aggravation of injuries she received in 2002.

[147]     In Dr. Padillo’s
opinion, it is likely that Ms. Power will continue to have chronic neck
and back pain with a secondary chronic pain syndrome that might aggravate her
ongoing pre-existing issues of back pain and headaches. In his opinion, there
is no good surgical alternative and passive modalities of pain control will
have limited if any success. He recommends aggressive weight reduction,
modification of life style, and treatment for depression and chronic pain
syndrome.

[148]     Dr. Padillo
testified that about 60% of people over the age of 50 will have asymptomatic
disc herniations.

  d)       Carol Burden, examining occupational therapist

[149]     Ms. Burden
was accepted as qualified to give opinion evidence as an expert in occupational
therapy, life care planning with respect to functional capacity, and cost of
future care. She provided three reports, dated June 9, 2009, July 8, 2009, and
March 10, 2011. Her first report was a functional capacity evaluation, her
second report was a cost of future care analysis, and her third report was a
revision to the earlier reports based on new information.

  i)        Functional Capacity
Evaluation

[150]     Ms. Burden
conducted functional capacity testing of Ms. Power on June 5, 2009. Ms. Burden
also saw Ms. Power on February 8, 2011, at her clinic, and on February 16,
2011, at Ms. Power’s home. Ms. Burden also met with Ms. Power on
February 8 and 16, 2011, and administered assessment questionnaires.

[151]     Ms. Burden
wrote that the overall test findings, in combination with clinical
observations, suggested the presence of good physical effort on Ms. Power’s
part. She wrote that Ms. Power’s overall heart rate analysis suggests good
effort, and that she displayed abundant examples of competitive test
performance, like asking to repeat a slow trial. There were some findings which
were inconsistent with that conclusion, but overall the findings suggested good
effort.

[152]     Ms. Burden’s
report includes the following:

a)       Ms. Power
was able to sit for periods of two hours, but benefited from being able to
shift position and stand;

b)       Ms. Power
was able to stand for periods of 60 to 90 minutes, but benefitted from short
seated breaks;

c)       Ms. Power
was able to walk one mile at a slow to moderate pace, but was not suited for
fast paced walking;

d)       Ms. Power
was not suited for bending, stooping, crouching or squatting;

e)       Ms. Power
was not suited for repetitive reach below shoulder level, or for repetitive or
sustained reach at or above shoulder level;

f)        Ms. Power was able
to manage stairs on an occasional basis;

g)       Ms. Power
was able to carry 10 pounds a distance of 50 feet on an occasional basis;

h)       Ms. Power
was not suited for frequent lifting at any level, and was best suited for work with
limited (sedentary) lifting demand.

[153]     At the end
of the testing day, Ms. Power reported increased pain in her lower back
and left shoulder. Ms. Power reported a significant migraine on the day
following the testing, as well as significant increases in pain, and that she slept
much of the day following the testing. Ms. Burden wrote that it is
apparent that Ms. Power worked beyond a sustainable level during the
testing on June 5, 2009.

[154]     In Ms. Burden’s
opinion, Ms. Power does not meet the full range of occupational demands
for a hairdressing teacher, and in particular, does not meet the demand for
upper limb coordination (which refers to reaching below, at, or above shoulder
level).

[155]     In Ms. Burden’s
opinion, Ms. Power is best suited for work with limited (sedentary)
lifting demand.

  ii)       Cost of Future Care
analysis

[156]      Ms. Burden’s
March 10, 2011, report essentially superseded the June 9, 2009, report with
respect to the costs.

[157]     Ms. Burden
recommended about $17,500 in initial future care costs and about $3,300 in
ongoing future care costs. That consisted of the following future care items:

a)       about $690 for counselling
for depression;

b)       about $1,250 for a
supported weight loss program;

c)       about
$23,200 for tuition and books for retraining as a social worker, about $100 for
a digital recorder, about $150 for the extra cost of a wheeled book bag
compared to a back pack, and about $450 for an alternate computer station and
chair for home;

d)       about
$650 starting in 2015 plus annual amounts of about $650 for access to a pool
and gym;

e)       about
$700 per year for periodic treatments of chiropractic manipulation,
physiotherapy, massage therapy;

f)        about $1,650 annually for
assistance with household chores;

g)       about
$200 every 5 to 10 years starting in 2008 for replacement of the memory foam
mattress topper;

h)       about
$250 per year for medication consisting of amitriptyline, Excedrin Migraine,
and Extra Strength Tylenol; and

i)        about
$60 per year for reusable hot and cold packs and disposable thermal wraps.

  e)       Robert Carson, economist

[158]     Ms. Power’s
counsel provided a letter from Mr. Carson, which included a set of tables of
present value multipliers and tax gross-up.

ANALYSIS

  a)       Liability

[159]    
Ms. Power’s counsel argued that Mr. Carswell was wholly
responsible for the Accident. The defence argued that Ms. Power was 10% or
15% at fault. The defence argued that Mr. Carswell went through the
intersection toward the end of an amber light, and that Ms. Power ought to
have seen the Jeep and slowed down enough to avoid the collision.

[160]    
The most compelling evidence on the question of liability was the evidence
of Ms. Allen. She was independent of the parties. She was driving a car
southbound on 3rd Avenue, waiting for her light to turn green before she proceeded.
Her evidence was that the Jeep entered the intersection while her light was
still red. Her evidence is consistent with that of all the other witnesses
except Mr. Carswell.

[161]    
Mr. Carswell entered the intersection when the light facing him was
red. Ms. Power’s view of the Jeep was blocked by the large building on the
southeast corner of the intersection. She took immediate action to brake and
swerve to the left when she saw the Jeep. There was nothing more that she could
have reasonably done to avoid the collision.

[162]    
Mr. Carswell was wholly responsible for the Accident. His employer,
Desert City Investigations, consented to Mr. Carswell’s use of the Jeep
for work. Desert City Investigations is vicariously liable for Mr. Carswell’s
negligence.

  b)       Quantum of
Damages

 i)        Generally

[163]     Ms. Power’s
complaints are predominantly subjective complaints of pain.

[164]    
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is
often cited as a reminder of the approach the court must take when assessing
injuries which depend on subjective reports of pain. At 397-399 of the reasons for
judgment, then Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries
normally resolve themselves within six months to a year or so. Yet every
physician knows some patients whose complaint continues for years, and some
apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at a
fair and reasonable compensation. Previously decided cases are some help (but
not much, because obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that
a defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

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

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

[165]     The
defendants are only responsible for any increased aggravation of Ms. Power’s
pre-existing problems. That is because Ms. Power is only entitled to an
award of damages which will theoretically restore her to her condition prior to
the Accident. She is not entitled to recover a sum which represents a complete
recovery, because she was not a completely healthy person at the time of the Accident.

[166]     The
defence argued that Ms. Power has exaggerated her symptoms, and that her
lies about what medication she was taking puts all of her evidence in question.

[167]     Ms. Stark’s
letter of June 10, 2005, was troubling in its suggestion that Ms. Power
had not recovered from her injuries in the 2002 Accident. However, both Ms. Stark
and Ms. Power testified that Ms. Power’s condition improved
significantly following the date of that letter.

[168]     The most
persuasive evidence was that of Ms. Hatcher. She worked closely with Ms. Power
in the six months prior to the Accident, but did not observe any physical
limitations, and did not even know until years later that Ms. Power had
been injured in an accident in December 2002.

[169]     It was
troubling that Ms. Power took medication prescribed to others and was not
forthright with the doctors about what medication she was taking. She should
not have taken any prescription drugs that were not prescribed for her.

[170]     However,
the fact that Ms. Power did these things does not cause me to disbelieve her
evidence. She lied about what she was taking because she knew it was wrong to
take medication prescribed to someone else, but she did not appear to understand
that it may have been important for the experts to know exactly what pain
medication she was taking. There was no evidence that the experts would have
changed their treatment plan if they had been told accurately what medication
she was taking.

[171]     The
defence also argued that the consistently perfect scores Ms. Power
achieved in her evaluations at the Hairstyling School demonstrated that she was
not suffering physical limitations following the Accident. However, Ms. Stark
completed these evaluations, and it was apparent that Ms. Stark was
assessing Ms. Power’s performance in the context of her physical
limitations, not comparing her performance to the expected performance of an
individual without such limitations.

[172]     Ms. Power’s
evidence about the extent of her injuries was generally reliable. It was supported
by several other witnesses including Ms. Hatcher, Ms. Stark, Ms. Loucks, Ms.
Liebrecht, and Mr. Whittingstall. Ms. Power loved her job at the Hairstyling
School, but found that she could not continue without others taking over more
of her duties. She tried the sales job, but found it also triggered pain.

[173]     Dr. Padilla’s
opinion was principally based on his assumption that Ms. Power had
substantial lower back and shoulder pain at the time of the Accident, which I
have rejected. Where his opinion conflicts with Dr. Singh’s, I prefer the
evidence of Dr. Singh.

[174]     The
defence argued that Dr. McLaren was an advocate for Ms. Power and
that his opinions ought to be given little weight. The defence also argued that
there were surprising omissions in Dr. McLaren’s records and that his
written report omitted aspects of his clinical records.

[175]     Dr. McLaren’s
opinions were based on the information provided by Ms. Power, which I have
substantially accepted. His clinical records were generally consistent with his
evidence, considered in the context of a busy family medicine practice. I
accept Dr. McLaren’s evidence, except where it conflicts with Dr. Singh’s,
in which cases I prefer the evidence of Dr. Singh owing to his qualifications
as a neurosurgeon.

[176]     By the
time of the Accident, Ms. Power had substantially recovered from the 2002
Accident and was able to perform all her teaching duties at the Hairstyling
School. She was susceptible to periodic flare-ups of pain from overuse, but
these did not interfere with her work or other regular activities.

[177]     At the
time of the Accident, Ms. Power was an enthusiastic, energetic, and
talented hairstyling teacher who loved her job. The job required her to spend
most of her work day standing, much of it with her hands above her head cutting
hair.

[178]     Ms. Power
suffered moderate soft tissue injuries to her chest, left neck, left shoulder,
and lower back in the Accident. The Accident caused a subligamentous disc
herniation at L4-L5 which has caused her significant pain in her lower back.
Despite painful treatment by cortisone injections into her hips and epidurally,
her pain persists.

[179]     Ms. Power
now experiences hip and lower back pain which limits her ability to sit, stand,
walk, and bend. She also experiences shoulder pain which limits her ability to
hold her hands near or above shoulder level. As a result of these limitations,
she can no longer work as a hairstyling teacher. Ms. Power made
significant efforts following the Accident to continue in that line of work,
but even with significant modifications, she was not able to do so on a
prolonged basis. She has made the reasonable decision to pursue a different
career which will more likely suit her physical capacity.

[180]     As a
result of her injuries, Ms. Power is also less able to care for herself
and her family. For example, she has difficulty styling her own hair and doing
laundry and other chores.

[181]     As a
further result of her injuries, Ms. Power suffers pain and is less able to
enjoy recreational activities. For example, she is less able to go on long
walks, to dance, and to sit for long drives or movies.

 ii) Non-pecuniary damages

[182]     The
purpose of an award of non-pecuniary damages is to provide solace to Ms. Power
for such things as pain, suffering, inconvenience, and loss of enjoyment of
life. Non-pecuniary losses are the personal injury losses that have not
required an actual outlay of money. One purpose of an award of damages for
non-pecuniary losses is to substitute other amenities for those that Ms. Power
has lost. The award must address losses Ms. Power suffered not only to the
date of trial, but also those that she will suffer in the future.

[183]     Non-pecuniary
losses have no objective ascertainable value, because there is no market in
health and happiness. It is generally not possible to put a claimant back
in the position she would have been in had the injury not occurred, and this is
especially true of non-pecuniary loss. The Court must fix a sum that is
tailored to Ms. Power, and that is moderate but fair and reasonable to
both parties, keeping in mind that Ms. Power will be fully compensated for
her future care needs and other pecuniary losses. The Court does not try to
assess a sum for which Ms. Power would have voluntarily chosen to suffer
such pain, inconvenience, and loss of enjoyment of life.

[184]     Awards in
other cases can provide some assistance, but each case varies depending on its
facts.

[185]     Mr. Hori argued
on behalf of Ms. Power that an appropriate award for non-pecuniary damages
would be $100,000. He relied on these cases: Ayoubee v. Campbell, 2009
BCSC 317; Knickle v. Filipovic, 2006 BCSC 1693; Jackson v. Lai,
2007 BCSC 1023; and Smaill v. Williams, 2010 BCSC 73.

[186]     Ms. Ginter
argued on behalf of the defence that an appropriate award for non-pecuniary
damages would be $50,000, before consideration of any possible reduction for
failure to mitigate. Ms. Ginter relied on these cases: Antoniali v.
Massey, 2008 BCSC 1085; Morrison v. Gauthier, 2009 BCSC 1271; and Leung
v. Foo, 2009 BCSC 747.

[187]     I also
considered these cases: Driscoll v. Desharnais, 2009 BCSC 306; Bove
v. Lauritzen, 2009 BCSC 1698; Burton v. Bouwman, 2010 BCSC 371; and Knight
v. Belton, 2010 BCSC 1305.

[188]     In all the
circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

 iii)      Past Lost Income

[189]     Ms. Power
claims $31,573.00 for past income lost from the Accident to the June 2011
commencement of the trial. The defence did not dispute her claim for the
initial loss of $510 in wages, but argued that she was not entitled to anything
else for past wage loss. The defence argued that Ms. Power did not
adequately seek less physically demanding work.

[190]     Following
the accident, Ms. Power missed 34 hours of work. As the defence accepted, Ms.
Power is entitled to the $510 in wages she would have earned in that period.

[191]     The
evidence did not clearly establish how much work Ms. Power missed in the
period of about three and one-half years until June 2010. She was regularly
absent. She did not, however, make a claim for that period.

[192]     Ms. Power
left her job at the Hairstyling School in June 2010. She claims income for the
period of about one year that she remained off work after that, less her
earnings at the retirement home. The position of the defence was that Ms. Power
ought to have remained working at the Hairstyling School.

[193]     It was
reasonable for Ms. Power to leave her job in June 2010. She loved the work
and had tried very hard to continue it, but finally concluded that she could
not do so. The evidence of Ms. Burden and of Dr. Singh is consistent
with the conclusion that Ms. Power was not able to continue in that job.

[194]     A couple
of months after leaving the Hairstyling School for the final time, Ms. Power
started working part-time as a hair stylist at the retirement home. She did
this work for about six months, but it created too much pain for her to
continue. In light of Ms. Power’s training and physical limitations, it was
reasonable for her to try that work on a part-time basis, and it was reasonable
for her to give up that work after six months.

[195]     Ms. Power
did not work in the period of about four and one-half months between leaving
the part-time job at the retirement home and the trial. However, in that
period, she took steps to qualify for the program at TRU. It was reasonable for
her to consider what employment would suit her physical limitations, and to
take steps to pursue it. There was no evidence that there were any jobs available
to Ms. Power which would have been suitable for a person with Ms. Power’s
physical limitations and level of training. Common sedentary work, such as
clerical or administrative work, may have required too much sitting or bending
for Ms. Power, and would likely have required Ms. Power to pursue further
training.

[196]     Ms. Power
is entitled to compensation for the period commencing June 2010 until the trial
in June 2011.

[197]     Ms. Power’s
income in 2009 was about $33,350 and she paid about $1,800 in income tax, for a
net receipt of about $31,550. In the period between June 2010 and June 2011, Ms. Power
earned about $900 gross from working at the retirement home. Deducting $900
from $31,350 results in $30,450. Together with the $510 lost wages for the
period before she returned to work, and with modest rounding of figures, Ms. Power
is entitled to $31,000 net.

 iv)      Lost Future Earning Capacity and Retraining

[198]    
Mr. Hori argued on behalf of Ms. Power that she should recover
$201,651.40 for future wage loss and retraining. That consists of $21,651.40
for the cost of retraining, $100,000 for lost earnings during four years of
retraining, and $80,000 for lost earning capacity. The defence argued that a
fair award regarding future earning capacity would be $25,000.

[199]    
The factors relevant for assessing the value of lost future earning
capacity are set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at
para 8:

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.

[200]    
In Reilly v. Lynn, 2003 BCCA 49 at paras. 100-101, Low and
Smith JJ.A. summarized the approach to assessing lost earning capacity as
follows:

[100]    An award for loss of earning capacity presents
particular difficulties. As Dickson J. (as he then was) said, in Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251:

 We must now gaze more deeply into the crystal
ball. What sort of a             career would the accident victim have had? 
What were his prospects             and potential prior to the accident?  It is
not loss of earnings but,             rather, loss of earning capacity for
which compensation must be             made: The Queen v. Jennings, supra.
A capital asset has been lost:             what was its value?

[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.) (Q.L.). 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. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v. Grand
& Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small…

[emphasis added by Low and Smith
JJ.A.]

[201]     Ms. Power
had a duty to mitigate her damages by seeking a line of work that she can
pursue despite her injuries, and to obtain any required education or
retraining. See Parypa v. Wick Wave, 1999 BCCA 88 at para. 67.

[202]     The cost
of reasonable retraining is a proper element of compensation: see Palmer v.
Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (BCCA).

[203]     The
defence argued that Ms. Power’s choice to pursue a four-year degree
exceeds what is reasonable in light of her pre-accident training and earnings
history. Her training in aesthetics and hairstyling took a total of less than
two years, and at the time of the accident Ms. Power was earning $18 per
hour.

[204]     There was
no evidence of other jobs that would be suitable for Ms. Power’s physical
and other abilities with less training, nor of the income Ms. Power could
likely achieve after completing a Bachelor of Social Work degree. It is
notorious that jobs requiring less education and training usually require more
physical ability.

[205]     The
defence argued that Ms. Power should have looked for other employment that
was more suited to her abilities. However, there was no evidence that such
employment was available. I accept that the physical strain of hairstyling
would be at least as bad as the physical strain of teaching hairstyling. Ms. Power
attempted a sales position in the beauty field, but was unable to meet the
demands for carrying products. She was not capable of doing the work that she
had training for, and it was a reasonable decision to pursue education and
retraining.

[206]     It was
reasonable for Ms. Power to take steps to pursue a career which will be
compatible with her physical abilities. She will be more readily employable in
her injured condition following that education. There was no evidence regarding
whether Ms. Power will be likely to earn more or less as a social worker
than she earned as a hairstyling instructor.

[207]     Ms. Power
may have pursued such retraining even if the accident had not occurred. For
example, Ms. Power may have stopped working at the Hairstyling School when
Ms. Stark sold it, or if it had closed. However, Ms. Power was so
enthusiastic about her work that she would likely have continued teaching
hairstyling or working as a hairstylist for as long as she reasonably could.

[208]     The
evidence did not disclose Ms. Power’s anticipated earning potential with
the further educational qualifications as compared with her qualifications at
the time of trial. It is likely that more opportunities will be available to
her following the training which would not have been available to her without
that training.

[209]     The
benefits of a Bachelor of Social Work degree will largely offset the
disadvantages arising from Ms. Power’s physical limitations arising from
the Accident. However, she will still be less valuable to herself as an
employee because of her physical limitations.

[210]     Ms. Power
is entitled to an award for the loss in her earning capacity which reflects
both some of the costs of retraining and the remaining loss of physical
capacity. The present value of the retraining costs for the four years of
tuition and books is about $21,650. Because of Ms. Powers physical limitations,
it is not reasonable for her to do substantial work outside the academic
program, although she may be able to perform part-time work during her studies.
She was earning about $25,000 per year, and therefore would lose about $100,000
in earnings during the period of completing such a program.

[211]     Damages
must be assessed, not calculated, and must be fair to both parties. The
contingencies include the possibility that Ms. Power would have pursued
the retraining even if the Accident had not occurred, that more opportunities
will be available to her because of an increased level of education, and that
she will experience difficulty obtaining employment and will suffer periods of
unemployment as a result of her physical difficulties.

[212]     A fair
award for Ms. Power’s lost earning capacity is $80,000.

 v)       Cost of Future Care

[213]     Ms. Power
claims $55,292.05 for the cost of future care for most of the items discussed
in Ms. Burden’s report. The defence argued that $5,000 would be a fair award
for Ms. Power’s future care costs arising from the Accident.

[214]     On
balance, the evidence shows that as a result of the Accident, Ms. Power
needs the following future care items:

a)       for
aids while retraining, about $100 for a digital recorder, about $150 for the
extra cost of a wheeled book bag compared to a back pack, and about $450 for an
alternate computer station and chair for home;

b)       about
$650 starting in 2015 plus annual amounts of about $650 for access to a pool
and gym;

c)       about $1,000 annually for
assistance with household chores;

d)       about
$200 every 5 to 10 years starting in 2008 for replacement of the memory foam
mattress topper;

e)       about
$250 per year for medication consisting of amitriptyline, excedrine migraine,
and extra strength tylenol; and

f)        about
$60 per year for reusable hot and cold packs and disposable thermal wraps.

[215]     The
evidence did not support making an award for counselling for depression,
because it was not recommended by any treating physicians. Although it was
mentioned by Dr. Padillo, Dr. McLaren has not referred Ms. Power for such
treatment, and I did not accept the factual assumptions underlying Dr.
Padillo’s opinion. Ms. Power does not wish to pursue a supported weight
loss program and is doing well with her own program, and so did not pursue the
claim for the costs of such a program. Ms. Power did not want to pursue a
claim for physical therapy costs because she did not think it improved her
condition and discontinued using it. The costs of tuition and books for
retraining as a social worker has been considered in connection with lost
future earning capacity.

[216]     The
one-time costs total about $700. The present values of the recurring costs are
as follows:

a)       of the
$642 annual cost of the pool and gym pass from 2015 (using the multiplier of
19.679 provided by Mr. Carson), about $12,600;

b)       of the
$1,000 annually for assistance with household chores, about $23,400 (using the
multiplier of 23.412);

c)       of about
$200 every 7 years for a memory foam mattress topper starting in 2015, about $650
(using the multiplier of 3.195);

d)       of $250
per year for medication, about $5,850 (using the multiplier of 23.412); and

e)       of the
total of $60 per year for hot and cold packs, about $1,400 (using the
multiplier of 23.412).

The total of those figures is $44,600 ($700 + $12,600 +
$23,400 + $650 + $5,850 + $1,400).

[217]     Ms. Power
would likely have required housecleaning assistance later in life even if the
Accident had not occurred. Taking into account that contingency, and the
contingencies that Ms. Power may not need all these items or may have needed
them even if the Accident had not occurred, Ms. Power is entitled to an award
of $40,000 for the cost of her future care arising from the accident.

 vi)      Special Damages

[218]     Ms. Power
claims $406.69 for special damages, consisting of the cost of a gym pass and of
a memory foam mattress topper. Those costs were reasonably incurred and are
recoverable.

  vii)     Mitigation

[219]     The
defence argued that Ms. Power failed to mitigate her losses, and that her
award should be reduced by 25% to reflect that. The defence argued that Ms. Power
waited too long before using a personal trainer and before taking significant
steps to reduce her weight.

[220]    
  The defence bears a heavy burden in establishing a reduction in
damages on the basis of failure to mitigate. The applicable law is
well-summarized in Fox v. Danis, 2005 BCSC 102 at paras. 35-37, aff’d
2006 BCCA 324.

[35]      There is no dispute that
every plaintiff has a duty to mitigate his/her damages, and that the burden of
proving a failure to fulfil that duty rests with the defendant, the standard of
proof being the balance of probabilities: Janiak v. Ippolito, [1985] 1
S.C.R. 146.

[36]      In this case, the
Defendant submits that the Plaintiff failed to mitigate her loss in that she
failed to exercise as recommended by her family doctor.

[37]     
To succeed in proving these submissions, the Defendants must establish, on the
balance of probabilities, that the Plaintiff failed to undertake this
recommended treatment; that by following the recommended treatment she could
have overcome or could in the future overcome the problems; and that her
refusal to take that treatment was unreasonable: Janiak v. Ippolito, supra
and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[221]     Ms. Power
had a duty to mitigate her damages. She did not work with a personal trainer
until more than a year after Dr. McLaren recommended that she do so.
However, there was no evidence that following that recommendation would have
overcome her problems.

[222]     Similarly,
Ms. Power did not lose weight as early as it was recommended. Weight loss
is notoriously difficult. Ms. Power recently lost 50 pounds, but the
weight loss has not improved her symptoms. Again, the defence failed to
establish that if Ms. Power had lost weight earlier, it would have reduced
her symptoms.

[223]     In short,
the defence has failed to establish that Ms. Power’s award should be reduced
for failure to mitigate.

SUMMARY

[224]     In
summary, Ms. Power is entitled to an award of $221,406.69, consisting of
the following:

a) $70,000 for non-pecuniary
damages;

b) $31,000 for past lost income net
of income tax;

c) $80,000 for lost future earning
capacity;

d) $40,000 for the cost of future
care; and

e) $406.69 for special damages.

[225]    
If the parties are unable to agree on the question of costs, they should
provide written submissions. If they are not able to agree on a schedule for
the exchange of such submissions, they should arrange a telephone hearing
before me through the Registry.

“Gray J.”