IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111206

Docket: 47117

Registry:
Vernon

Between:

Trinity Rae Smith

Plaintiff

And

Patricia Ann
Williams

Defendant

Before:
The Honourable Mr. Justice Betton

Oral Reasons for Judgment

Introduction

[1]            
THE COURT: The plaintiff, Trinity Rae Smith, advances a claim for
damages arising out of a motor vehicle collision that occurred on July 9, 2009.
Liability for the collision is admitted by the defendant.

[2]            
The plaintiff received soft tissue injuries primarily to her upper body.
She was traumatized by the accident and was subsequently diagnosed with post
traumatic stress disorder. The most contentious and challenging elements of the
assessment of damages are in relation to determining the ongoing impact of
these conditions to the plaintiff’s professional and personal life. These are,
of course, key to determination of any award for loss of future earning
capacity and non-pecuniary damages.

The Facts

[3]            
The collision occurred on Highway 6, east of Vernon, as the plaintiff
was returning from work in Lumby, as a locum in a veterinary practice. She was
driving a 2005 Jeep Liberty. The defendant’s vehicle crossed the centreline and
there was a head-on collision. Photographs taken after the accident, by the
attending RCMP, are at Exhibit 2, Tab 1. It was a significant impact. The
plaintiff was taken by ambulance to the Vernon hospital, where she was treated
and released later that evening.

[4]            
The plaintiff is a 33-year-old doctor of veterinary medicine. She was
married September 10, 2009, and gave birth to her first child on August 20,
2010. The plaintiff completed her education with distinction from Saskatoon’s Western College of Veterinary Medicine in 2004. Although not required as any
part of post graduation training, the plaintiff secured a prestigious
internship at a Boston area veterinary hospital, where she worked for a period
of 13 months. Following that, she worked in her home town of Prince George,
where she met her future husband. In 2006, she worked in a Calgary emergency
veterinary hospital. In December 2006, she moved to Vernon, following her
husband, an RCMP member, who had been transferred.

[5]            
From January 2007 to February 2008, she worked as an associate in a
veterinary clinic in Vernon. From February 2008 to November 2009, she worked as
a locum at the various area veterinary clinics, including Central Animal Hospital. During her time at Central Animal Hospital, the plaintiff came to know Dr. Keith,
who was also working as a locum at that business. The plaintiff also
became aware that the business’s owner was interested in selling. The plaintiff
and Dr. Keith developed plans to possibly purchase the business, which led
to negotiations for the same. These negotiations had begun before the date of
the collision. A deal was ultimately struck and was completed on November 1,
2009. The plaintiff continues in her partnership with Dr. Keith at Central Animal Hospital.

[6]            
Each of the phases of the plaintiff’s work as a veterinarian, since her
graduation, has had quite different qualities and demands. While in Prince
George, the clinic she worked at had contracts with the SPCA for spaying and
neutering animals, which often meant long, physically-demanding days carrying
out those procedures, in addition to other general work.

[7]            
In Calgary, the plaintiff worked at the Calgary North Veterinary Hospital doing shift work and almost exclusively dealing with emergencies. She
described this as a very intense job, often involving overtime. Indeed, her
income for that year spiked, according to her tax returns, to $156,000, the
highest of her earning years to date.

[8]            
Upon her move to Vernon, to follow her husband in his transfer, the
plaintiff worked as an associate from January 2007 to February 2008. It was a
40-hour workweek and she was on call 50 percent of the time. Her earnings that
year were approximately $70,000. Following that and prior to her acquisition of
the Central Animal Hospital, the plaintiff worked as a locum at various clinics
in the area. She often worked in more than one town in a given day, working as
many as seven days per week, sometimes in double shifts. In 2008, her earnings
were in the $70,000 to $75,000 range. The evidence is somewhat unclear in that
respect. Indeed, at the time of the accident, she was returning from a shift in
Lumby, in the order of 30 kilometres east of Vernon.

[9]            
When the plaintiff and Dr. Keith acquired Central Animal Hospital,
it was known to them to be a “one-vet practice”. Their intention is and was to
build the practice over time. As is apparent, the acquisition of the practice
was after the motor vehicle accident. The arrangement struck between Dr. Keith
and the plaintiff was to split the on-call time and the workdays. In addition,
they have divided the administrative or ownership responsibilities based on
their attributes, but also approximately equally.

[10]        
The plaintiff, throughout her high school years, was socially immersed
and was both active and successful in team sports. She was a very good student.
After her professional career began, she remained very physically active,
focusing on running and workout classes. By all accounts, she pushed herself
hard in her physical endeavours and enjoyed it.

[11]        
The plaintiff’s pre-accident health was very good. The plaintiff is of
small stature. She is left-handed.

[12]        
She had, on approximately three occasions prior to the accident, been
treated for depression or depression-like symptoms, but they appear to have
been of relatively short duration and arose during adolescence or early adult
development and with stresses of life.

[13]        
The physical injuries received in the motor vehicle accident included
soft tissue injuries to the plaintiff’s neck, back, right shoulder, arm and
hand. She had bruising and swelling to her face, primarily her nose area. She
also had bruising to her chest and legs. With the exception of her right
shoulder and arm, the plaintiff’s injuries healed in a fairly typical fashion
over a period of weeks or up to six months. Her recovery was aided by regular
physiotherapy and massage treatments. On medical advice, she also had
trigger-point injections. Her right arm and shoulder symptoms continue to
exist. Following the accident, the plaintiff was assessed for psychological
complaints and symptoms, and was ultimately diagnosed with Post Traumatic Stress
Disorder.

[14]        
The plaintiff received medical treatments and assessments. Various
reports were filed, setting out opinions regarding her diagnosis and prognosis.
These are collectively marked as Exhibit 1. They include the following:

1.       Dr. Chris Cunningham

[15]        
Dr. Cunningham is the plaintiff’s treating family physician. In a
report dated June 25, 2011, Exhibit 1, Tab 4, the following statements are
included:

It is my opinion that Trinity Smith has had soft tissue
strain injuries resulting from her accident. She still experiences neuropathic-type
pain in her right arm…In addition, it is my opinion that she has suffered Post
Traumatic Stress Disorder (PTSD) and anxiety as a result of this accident. This
has affected her ability to drive, ride as a passenger, and her sleep.

…

She has shown some improvement in her right arm symptoms. She
is able to perform many activities including recreation, daily care, and her
work duties. She is however, still affected with pain and numbness at times and
this does limit her activities. She will continue to have to adjust her
activities. If her right arm pain and numbness continues, she will find that
her recreational activities, her household activities of daily living (ADLs),
and her work duties will be limited…

Her PTSD and anxiety has been reduced with psychological
treatment, but she is still greatly affected and I expect her driving and sleep
will be affected negatively for many years…I would however leave the
determination of the severity of this disability to the opinions of [a] specialist
like Dr. Neilson an occupational therapist.

In reference to her work as
a veterinarian and her duties, Dr. Cunningham says:

…I would suggest an assessment
by an occupational therapists (sic) or rehabilitation medical specialist to
determine the severity and duration of such disability as they relate to her
vocation…

[16]        
In his viva voce evidence, Dr. Cunningham was cautious about
any suggestion that the plaintiff would have full recovery or that she would be
unrestricted by her ongoing symptoms.

2.       Dr. Patricia Nielsen

[17]        
Dr. Nielsen is the plaintiff’s treating psychologist in respect of
her post traumatic stress disorder. In Dr. Nielsen’s report dated January
28, 2011, Exhibit 1, Tab 6, the following comments are included:

Since her initial session, Ms. Smith appeared to make
slow but gradual progress…

…[The plaintiff] acknowledged that her driving is
restricted, she continues to be very fearful of another accident, and she is
very physical and mentally tense while driving…

…

My opinion is that Ms. Smith
continues to experience symptoms that indicate a diagnosis of Posttraumatic Stress
Disorder. Given that Ms. Smith has made gradual progress over the last
year, and that she continues to work on management of her symptoms, I am not
able to provide an opinion regarding whether or not this condition is
permanent. I would expect that Ms. Smith will continue to make gradual
progress and improvement. However, given that her symptoms have persisted for
the past year and a half, I would expect that some degree of increased driving
anxiety is likely permanent. I am not able to comment on how this condition
will impact her future occupational functioning. At this point, she would be
restricted from work that requires her to drive routinely, particularly under
more difficult driving conditions.

[18]        
In her viva voce evidence, Dr. Nielsen noted that the
plaintiff tends to minimize her symptomology. Like Dr. Cunningham, she
adopted a cautious tone toward any suggestion of full resolution, given the
severity and duration of the symptoms.

3.       Dr. Lee Rasmusen

[19]        
 Dr. Rasmusen prepared a report dated February 22, 2011, at Tab 10
of Exhibit 1. He is a psychiatrist retained by the plaintiff to comment on her
psychological conditions. His report contains the following comments:

DSM IV Diagnosis

Axis I   Post Traumatic Stress Disorder in partial remission
…
Axis V  Current GAF – 80
Best GAF in the past year – 80
Worst GAF in the past year – 40

…

There has been a gradual
improvement, and in my opinion, at this time she does not meet the criteria for
full Post Traumatic Stress Disorder…

[20]        
He goes on to explain the criteria that must be satisfied to meet the
diagnosis of Post Traumatic Stress Disorder. One of them is “Category F”, which
is described as “the disturbance causes clinically significant distress or
impairment in social, occupational or other important areas of functioning”. In
respect of that category, Dr. Rasmusen notes:

Ms. Smith met this criteria in the past, but in my
opinion, her symptoms no longer causes (sic) “clinically significant distress
or impairment”.

…

The current residual symptoms she
continues to have, I suspect, may not fully resolve. It has been my experience
with individuals such as Ms. Smith that she will likely continue with a
greater degree of worry about the future and a sense of foreshortened future.
Her hypervigilance while driving will likely continue indefinitely.
Fortunately, with the assistance of Dr. Neilson, she has developed coping
strategies that reduce the intensity of her symptoms and permit her to continue
driving.

4.       Dr. Andrew Travlos

[21]        
Dr. Travlos, a physical and rehabilitation medicine specialist,
prepared a report dated February 20, 2011, which is at Tab 8 of Exhibit 1.
Excerpts from his report include the following:

…There is reasonable expectation for a full recovery from
the chest and thumb symptoms and it is more probable than not that the arm
symptoms will improve further. It is possible that the arm symptoms will
resolve but I think it is more likely that she will have intermittent achiness of
the arm depending on her activities. For example, if she undertakes very
lengthy surgical procedures or excessive physical activities such as cleaning
the house for spring cleaning, then she can expect to have some flare in pains
for several days before the pains settles. It is probable that that pattern of
symptoms will persist with her over time. A more definitive prognosis will,
however, need to await the passage of another 18 months, by the end of which
she will either have recovered or be left with symptoms. Whatever she is left
with at that time will probably be the symptoms that she remains with.

…

…Dr. Smith is capable of working regular full time
work hours and duties but it is probable that longer surgical procedures,
heavier, more repetitive lifting will typically trigger her symptoms for now.
As she recovers, such restrictions will reduce. I would expect her to be able
to return back to regular full duties in an unrestricted way but potentially with
discomfort from her pains but not enough to prevent her from going about her
usual duties.

Dr. Smith is able to partake in regular home chores and
activities. She does have someone do the work for her but could do the work if
she needed to or wanted to.

…

Dr. Smith is capable of
participating in recreational activities. Currently, her restrictions are in
part related to the accident symptoms and in part related to her pregnancy and
post partum period. She probably would have difficulties with things such as
racquet sports, waterskiing, kayaking, and canoeing. Nevertheless, as she gets
fitter and stronger, these restrictions should subside and resolve.

5.       Lydia Phillips

[22]        
Ms. Phillips is an occupational therapist who carried out a
worksite evaluation. Her report is dated July 11, 2011, and is at Tab 12 of
Exhibit 1. That report included the following observations of Dr. Smith’s
work at the Central Animal Hospital:

In summary her job demands can be described as follows:

·       
[Her] job is generally in the “light” category, but sometimes
moves to “medium”. On the rare occasion, there are “heavy” demands (i.e.
lifting a large dog onto the x-ray table when no other help is available).

·       
Standing is frequent to constant depending on the day.

·       
Stooping is occasional to frequent depending on the day…

[23]        
Following the collision in 2009, the plaintiff did not work for the
first few weeks. She then returned to work as a locum on reduced hours until approximately
October 31, 2009, when she acquired the Central Animal Hospital with Dr. Keith.
Thereafter, she and Dr. Keith have essentially split the veterinary work
50/50, as well as having divided the administrative work. This meant doing
veterinary work two days one week and three the next. From August 2010 to
August 2011, the plaintiff was on maternity leave, but she did attend and work
some shifts and carry out some administrative duties at the Central Animal
Hospital.

Relevant Provisions of the Law

[24]        
In Stapley v. Hejslet, [2006] B.C.J. No. 128 (C.A.), the
court confirmed the purpose of non-pecuniary damages and some of the factors
influencing an award of non-pecuniary damages. Those are set out in detail at
paras. 45 and 46. In those paragraphs, the court quotes from Lindal v.
Lindal as follows:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury"

In para. 46, a number of factors, which are described as
"an inexhaustive list of common factors that influence an award for
non-pecuniary damages”, are set out." I will not repeat that.

[25]        
In Perren v. Lelari, [2010] B.C.J. No. 455, the Court of
Appeal reviewed and summarized a number of authorities dealing with the loss of
earnings capacity awards in addressing the question before it. It articulated
that question at para. 4 as follows:

Put another way, the question is
whether a plaintiff who demonstrates a diminishment in her earning capacity no
matter how slight, is entitled to some award of damages, even where she cannot
demonstrate any substantial possibility that that lost capacity will result in
a pecuniary loss.

[26]        
The court answered the question in the negative. One of the cases
referenced was that of Justice Bauman in Chang v. Feng, [2008] B.C.J. No. 48
(S.C.), at paras. 75 and 76. Those paragraphs read as follows:

[75]      Justice Donald, for the court, noted the trial
judge’s use of the phraseology from Palmer v. Goodall (1991), 53
B.C.L.R. (2d) 44 (C.A.) (at ¶ 17 and 18):

[17]      But the language in
question there was used in the context of appellate review and, with respect,
it cannot be transposed to an original analysis at the trial level. The
claimant bears the onus to prove at trial a substantial possibility of a future
event leading to an income loss, and the court must then award compensation on
an estimation of the chance that the event will occur: Parypa ¶
65.

[18]      When the record is
examined according to that approach, I cannot see the basis for a substantial
possibility giving rise to compensation for diminished earning capacity. There
being no other realistic alternative occupation that would be impaired by the
plaintiff’s accident injuries, the claim for future loss must fail.

[76]      This appears to be an
express direction to first enquire into whether there is a substantial
possibility of future income loss before one is to embark on assessing the loss
under either approach to this head of loss, in particular, under the capital
asset approach as well. (I note that Justice Russell arrived at a similar
conclusion in Naidu v. Mann, 2007 BCSC 1313 and see also Bedwell
v. McGill, 2008 BCCA 6, ¶ 53.)

[27]        
At paras. 30 to 32 of Perren, the Court of Appeal concludes:

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

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

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

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

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

[28]        
A case not cited by counsel, but to which I will make reference  since a
significant part of the argument by the defence was that the plaintiff had not
proved the substantial possibility, is the case from the Court of Appeal in Stegemann
v. Pasemko, 2010 BCCA 151. There, the court was dealing with an appeal on
the issue of a dismissal of a prospective increase in revenues as being
speculative. At paragraph 24 and 25 the court said:

[24] In my view, the trial
judge’s use of the word “speculation” must be considered carefully. In a sense,
all assessments of future events can be called “speculation” in that they
predict matters that are contemplated rather than established. In a narrower
(and somewhat pejorative) sense, though, the word “speculation” is often used
to describe predictions that are matters of mere conjecture – fanciful guesses
which lack a basis in the evidence, and which can, therefore, be disregarded. The
anticipated growth of the College [referencing the facts of that particular
case] was not a matter of speculation in that sense; rather, there were
plans to expand the programs offered, and there was a history of success in
that regard. In my view, the evidence of Mr. Collier would be better described
as a “projection” rather than as “speculation”.

[25] When a court is assessing
damages for potential future events, it does not require that those events be
proven on the balance of probabilities. Instead, there merely has to be
evidence establishing a real likelihood (or substantial possibility) of the
events occurring. The assessment of damages is then based on the relative
likelihood that the postulated event will occur (Athey v. Leonati,
[1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235; Smith v. Knudsen, 2004 BCCA
613, 247 D.L.R. (4th) 256, [2005] 1 W.W.R. 216). The trial judge should not,
therefore, have dismissed anticipated future growth as “speculative”. He
should, instead, have accepted such growth as a real possibility and, taking
into account his assessment of the likelihood that such growth would have been
realized, reflected it in his evaluation.

[29]        
In Kroeker v. Jansen, [1995] B.C.J. No. 724 (C.A.), there is
confirmation that an award of pecuniary damages is appropriate where there is a
diminution in, or impairment of, an ability to perform normal household tasks.

Analysis

[30]        
The plaintiff seeks awards of damages for non-pecuniary or general
damages, past income loss, loss of future earning capacity, loss of
housekeeping capacity, costs of future care, and special damages. Counsel
advised that an agreement has been reached in respect of past loss of income
and special damages in the amounts of $13,500 and $3,700 respectively.

[31]        
No issue has been raised with respect to the adequacies of the
plaintiff’s mitigation of her losses. Indeed, all of the evidence supports a
conclusion that she has been fully compliant with any recommendations made to
her and has implemented all strategies to minimize the effects of the injuries
on her.

[32]        
There is no real disagreement in respect to the assertion that she
continues to have symptoms. As noted in my introduction, the disagreement is in
relation to the significance of those ongoing symptoms and how, if at all, they
might affect her future. In addition to the conclusions in the medical reports
summarized above, I note the following evidence.

[33]        
The plaintiff indicated that the accident has left her with a feeling of
vulnerability. She is very anxious in a motor vehicle, especially on highways,
envisioning accidents unfolding. There are occasional panic attacks. She gets a
tingling and pain down her right arm that is aggravated by repetitive motion
and particular movements or positions. One of these, I note, was holding her
child while breastfeeding. Others relate to her work as a vet.

[34]        
She spoke of how the physical and psychological injuries have adversely
affected her enjoyment of her wedding and her regret for how she reacted to the
stresses associated with the wedding toward her husband. For her part, the
plaintiff indicates that she simply battles through her restrictions. She says that
the more physically demanding her day, the greater the consequences in
symptoms.

[35]        
She does have the ability to adapt her schedule in her current work
situation, but she does not believe that she has the ability to work five days
per week. Pain limits her exercise tolerance and work capacity, although she
can work through it. As a consequence, she will not take locum work now, even
though her practice does not require her five days per week. She will not take
all the time that will be available while Dr. Keith is away on her
anticipated maternity leave.

[36]        
Dr. Keith’s evidence was to the effect that the plaintiff had,
prior to the accident, unbelievable energy, as she described it, with a
"bring it on" approach, but now she is cautious about structuring her
days.

[37]        
Kevin Rutten, the plaintiff’s husband, indicates that his observation is
that the plaintiff remains short-tempered and that she is anxious while
driving.

[38]        
There are a number of features of this case that make the assessment of
damages more complicated. They include the fact that the plaintiff is a new
mother. The evidence also indicates that she and her husband plan to have more
children, although how many is unclear. This has, to some extent, been a factor
for her in determining what she has done and what she may do in the future in
terms of her employment.

[39]        
In addition, she has become a partner in a practice since the accident,
which is quite different from the previous phases of her professional career.
As a result there is no established status quo in that specific workplace
against which one can measure the effects of her injuries. She is not now
working full-time in the context in which that phrase might typically be used,
but she is working full-time in the context of the state of the practice at the
Central Animal Hospital at present. How the growth of that practice and its
development may change from what would have been the case is unknown. These are
all important changes for the plaintiff that are independent of the accident
consequences.

[40]        
The report of Dr. Travlos, including those portions quoted, states
quite clearly that the plaintiff is capable of regular full-time work and
duties. Further, in the longer term, restrictions on her recreational
activities "should subside and resolve". He is careful to defer comments
regarding her psychiatric or psychological wellbeing to others.

[41]        
In respect of that, Dr. Nielsen and Dr. Rasmusen are
consistent in their description of the plaintiff and the nature of her
difficulties. Dr. Rasmusen concludes that the plaintiff does not meet the
criteria for full Post Traumatic Stress Disorder, based on one of the six
categories of factors to be considered. He acknowledges that the particular
category is a subjective determination. Dr. Nielsen indicates that she
would come to a different conclusion on that point.

[42]        
On the whole, that difference of opinion is more academic in nature than
any material disagreement between the two as to the plaintiff’s functioning.
There is agreement in that the elements of the condition will remain permanent.
Dr. Nielsen is of the opinion that the plaintiff would be restricted from
work that requires her to drive routinely.

General Damages

[43]        
This plaintiff is a young professional, early in her career. She has
historically been a high-achiever, endowed with intelligence, motivation and
physical ability. The motor vehicle collision came as she was planning her
wedding and the purchase of a business. Her wedding, as described by her,
was not the enjoyable experience that she, as a young woman, had dreamed of.

[44]        
The purchase of the business completed, and she has been able to live up
to the work demands of that practice, facilitated in part by the fact that it
is less demanding than work she did prior to acquiring the practice. In
addition, her absence for maternity leave coincided with her rehabilitation.
She has actively engaged in rehabilitation during all of the significant
developments in her life, including being a new mother. The Post Traumatic Stress
Disorder symptoms linger and also influence the enjoyment of an activity which
is part of everyday life, that is, driving.

[45]        
I have been referred to many authorities contained in the books provided
by both plaintiff and defence. I am directing that copies of the indexes of
those books of authorities be included in the court file and if this decision
is transcribed, they should be attached as an appendix to that decision.

[46]        
As is commonly observed, authorities in this context are useful for
perspective on what courts have awarded in other cases with varying degrees of
similarity. It is trite to say, however, that each case is unique and there
will always be distinguishing features. Even if one accounts for those
distinguishing features, there will always be some decisions that seem
difficult to reconcile, other than by observing that it is difficult in a
decision such as this to give full and complete description of the sometimes
subtle variables and impressions left by the evidence that drive a court to a
particular monetary conclusion. It is not unlike the task of explaining
assessments of the credibility of witnesses.

[47]        
On the strength of its authorities, the defence submits that the
appropriate award of non-pecuniary damages would be $40,000 to $45,000. The
plaintiff argues that an award of $100,000 should be made.

[48]        
I note that several of the plaintiff’s authorities seem to involve cases
with more significant ongoing problems. In Neumann v. Eskoy, 2010 BCSC
1275, the court accepted that the plaintiff had chronic pain syndrome from the
accident, which was moderated somewhat by medication, and that "[P]ain and
fatigue on a continuing or chronic basis can and do dramatically impair the
quality of life and the enjoyment of life" In Kasidoulis v. Russo,
2010 BCSC 978, the court concluded that the plaintiff suffered from debilitating
mid and low-back pain. This pain and attendant low energy had had a significant
impact on her life. In each of those two cases, the court awarded non-pecuniary
damages of $90,000.

[49]        
In Trites v. Penner, 2010 BCSC 882, the court concluded:

[195]    …Mr. Trites sustained soft
tissue injuries to his neck and back as a result of the accident and that,
nearly four and a half years post-accident, he still experiences pain in his
neck and back, mainly the lower back area. The injuries can be described as moderate
in nature but they have developed an element of chronic pain that continues to
affect most every facet of Mr. Trites’ work and non-work life…

[196]    Mr. Trites
is a stoic and determined person. Despite the neck and back pain and attendant
headaches he has tried to continue to work as a plumber and also to remain
physically active but is far less active than he was prior to the accident…

In that case, non-pecuniary damages of $75,000 were
awarded.

[50]        
In Johnstone v. Canada (Attorney General), 2006 BCSC 1867, a
young man suffered physical and psychological injuries, specifically Post Traumatic
Stress Disorder. He had pre-existing depression that he managed through
vigorous exercise. The limitations noted by the court there were expected to be
indefinite, and the court awarded general damages of $100,000.

[51]        
Among the authorities cited by the defence is Tung v. Allen,
[2008] B.C.J. No. 970 (S.C.). There, Justice Cole described physical
injuries of similar severity. He specifically did not accept a claim for PTSD,
although he did find the incidents had resulted in anxiety. He awarded $60,000
for non-pecuniary damages.

[52]        
The defence also referred to Hunter v. Yuan, [2010] B.C.J. No. 2118
(S.C.). There, the collision was minor and the plaintiff suffered soft tissue
injuries. There was no PTSD or psychological consequence. Following the
accident, the plaintiff had trained for and completed a half-marathon. The
medical prognosis was for intermittent neck and back symptoms. The court
awarded $35,000.

[53]        
Taking what one can from those authorities and applying the general
principles, as referenced in Stapley, it is my conclusion that an
appropriate award for general damages is $75,000.

Loss of Earning Capacity

[54]        
The plaintiff argues that loss of earning capacity will be manifested in
three ways. First, and almost immediately, the plaintiff will be unable to
absorb all of the days that Dr. Keith will be absent while she is on
maternity leave. In addition, it is argued that she is less capable, generally,
of doing the work of a veterinarian. Last, it is argued that she will be
restricted from pursuing certain types of employment, should that emerge as a
desire or a need in the future.

[55]        
The defence argues that the threshold question, of whether there is a
real and substantial possibility of a future event leading to an income loss,
must be answered in the negative. In its written argument, the defence says:

At best, we are being asked to speculate as
to a potential loss of income capacity which as set out in Lorenz, does
not equate to a real and substantial possibility. There is no evidence
supporting a possibility of an event which would suggest a worsening or
lessening of the Plaintiff’s capacity, at best, it is submitted that in fact
there is a good possibility that her present condition (with no apparent
limitations) will improve.

[See
Lorenz v. Gosling, [2011] B.C.J. No. 1747 (S.C.)]

[56]        
The plaintiff is in the early stages of her professional career. It is
indeed possible that she will remain for many years with her present business. She
has, however, demonstrated in her short years as a veterinarian that the nature
of the work can vary significantly. One of the cases referenced with approval
in Perren is Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, a
Court of Appeal decision which references earlier decisions setting out the
types of considerations relevant to determination of whether the capital asset,
that is, future earning capacity, has been impaired. They 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.

[57]        
The medical opinion of Dr. Travlos can only be read to mean that
the physical problems will not prevent the plaintiff from carrying out the
duties of a vet in the short or longer term. The symptoms will subside to some
degree yet. On its face, there may seem to be some inconsistency between this
opinion and the evidence of the plaintiff. She said in direct that she could
not work as a locum to the level she had done previous to the motor vehicle
collision, nor could she cover Dr. Keith while Dr. Keith is on
maternity leave. The plaintiff does, however, acknowledge that she can do all
the tasks of a vet. Her work scenario is not nearly as demanding as any of
those that preceded her current situation, and this may explain to some degree
that apparent consistency.

[58]        
It is my opinion that the plaintiff simply is not as driven in her work,
some of her motivation having been sapped, if you will, by the ongoing
symptoms, both physical and psychological. The residual effects of the Post Traumatic
Stress Disorder have a real potential to restrict her ability to travel in the
course of her employment if the driving requirements are significant. Her work
history demonstrates that that certainly can be the case.

[59]        
If, for any reason, the plaintiff leaves Central Animal Hospital or seeks to supplement her income there, travelling to do locum work would likely have
been one of her options, based on her history. The prospect of her leaving Central Animal Hospital seems small, but she is young, her ownership of the business is
new, and many things can happen. The plaintiff’s husband is an RCMP member with
at least some prospects of transfer.

[60]        
There is enough, in my view, to satisfy the tests sets out in the
authorities listed, to make an award for loss of capacity. The plaintiff is
clearly a stoic individual and has a tendency and a will, as Dr. Nielsen
described it, to soldier on.

[61]        
The plaintiff reported to Ms. Phillips, in the course of her worksite
evaluation, that she can do the work and still function at the end of a
workday. All of this is, however, in the context of working less than five days
per week as a veterinarian. The limitations are, in my view, modest; and while
there is a real and substantial possibility that they will influence her, I
must weigh their relative likelihood. This is not a loss that is suited to a
calculation or a mathematical measure, although the plaintiff has argued that
some portions of it are.

[62]        
Her earnings historically as a vet, with the exception of her year in Calgary, have been in the order of $75,000. It is my conclusion that an appropriate award,
considering the facts of this case and the legal principles, is $85,000 for
loss of earning capacity.

Loss of Housekeeping Capacity

[63]        
With respect to the loss of housekeeping capacity, again the opinion of Dr. Travlos
is key. He specifically concludes that the plaintiff could do the work if she
needed or wanted to. There is no suggestion that she should not do the work. He
also notes, and her evidence confirms, that the plaintiff has hired assistance
both before and after the motor vehicle collision.

[64]        
The plaintiff says that the work she did do before the collision, now
causes her pain, so she does not do it. In my view, the law does not support an
award in this category based on the evidence in this particular case.

Costs of Future Care

[65]        
Shortly after the collision, the plaintiff was referred to and began physiotherapy
and massage therapy for her physical symptoms. For the first approximately six
months, she attended more frequently, but attendances tapered off thereafter.
She now attends approximately monthly to each for symptom or pain management. Dr. Cunningham
is supportive of these ongoing treatments.

[66]        
For her Post Traumatic Stress Disorder, she was referred to Dr. Nielsen.
Prior to the report of January 28, 2011, the plaintiff had seen Dr. Nielsen
eight times. Since that report and to the date of trial, there were four
further visits. The plaintiff says that these ongoing treatments allow her to
manage flare-ups in her symptoms and to maximize her functioning. Given the
evidence that both work and home care activities provoke the symptoms and will
continue to do so, these treatments on an ongoing basis serve to reduce the
impact of the motor vehicle collision injuries on her life and are thus reasonable.
There must be recognition that the medical evidence generally confirms that the
symptoms should continue to subside, especially over the next 18 months.
Treatments from Dr. Nielsen cost $150 per hour and are of one-hour
duration. Physiotherapy costs per visit are $63 and massage costs are $63 to
$83 per visit.

[67]        
The plaintiff introduced evidence from Mr. Carson, an economist, with
present value multipliers for damages of this nature. The defence consented to
its introduction. If, as the plaintiff asserts, these multipliers are used to
calculate the present value of the costs of these treatments for 20 years, they
would total $37,102.16. This number, in my view, needs to be reduced to
recognize the likely diminishing need. Again, there can be no precise
calculation in this regard. In my view, the appropriate award is $20,000.

[68]        
In summary then, the plaintiff is entitled to $75,000 for non-pecuniary
damages, $13,500 for past income loss, $85,000 for loss of future earning
capacity, $20,000 for costs of future care, $3,700 for special damages, and if
my arithmetic is correct, the total is $195,200.

[69]        
Subject to any information or submissions to the contrary, it would seem
that the plaintiff should be entitled to her costs.

Betton J.