IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120210

Docket: M093060

Registry:
Vancouver

Between:

Minveluz
Daitol

Plaintiff

And

Adrian
Phillipe Chan and Melanie Agostinho

Defendants

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
The plaintiff, Minveluz Daitol, was injured in a car accident on July 1,
2007.  She was driving a 4-door sedan owned by her friend, Melanie Agostinho (a
named defendant) who was a passenger in the car.  Suddenly, they were struck by
a car driven by the defendant, Adrian Chan.  The accident occurred in the early
morning hours, when Mr. Chan dozed off while driving and allowed his car
to drift into the oncoming lane of traffic in which Ms. Daitol was
driving.

[2]            
This accident occurred on Granville Street in Vancouver, B.C.  The
collision was significant enough to spin Ms. Daitol’s car off the road and
against a tree located on the sidewalk.  Due to damages caused to the car, Ms. Daitol
was unable to open her door.

[3]            
Mr. Chan’s Honda vehicle was also extensively damaged and was
written off.

[4]            
At the start of trial, the court was advised that the defendant Mr. Chan
admits liability, and that the proceeding had been discontinued as against Ms. Agostinho. 
As the liability portion of the trial had been ordered to proceed first, the
court rendered judgment to the plaintiff declaring the defendant liable for the
plaintiff’s damages arising from the accident, with the damages and costs to be
assessed.

[5]            
This judgment addresses Ms. Daitol’s claim to damages.

Plaintiff’s Background

[6]            
The plaintiff, Ms. Daitol, was born in the Philippines in 1975, and
is currently 36 years old.  She lives with her common-law spouse, Mr. Huso
Hadzic.  She does not have any children.

[7]            
Ms. Daitol was born and raised in the Philippines.  She completed
high school there and a four year college course, obtaining a bachelor’s degree
in computer science in 1996.  I pause to note that her description of that
degree suggests that it might not involve similar training as an equivalent
degree in Canada.  It did not involve any computer programming but was more
akin to office training.  This was not canvassed in detail in the evidence.

[8]            
After her college course, Ms. Daitol saw an ad in the newspaper for
a program that would allow someone to be a caregiver in Canada, and so she took
that six-month program in a private school.  After completing the program, she
ultimately immigrated to Canada in 2001 as a caregiver.  Before that, she
worked as an office assistant in a small architectural firm in the Philippines.

[9]            
Ms. Daitol’s first job in Canada was as a caregiver in Fort
Saskatchewan, a suburb of Edmonton, Alberta.  She was looking after three
children.  After approximately 6-7 months, her employer lost her own job and
according to Ms. Daitol’s understanding, could no longer afford to have
this assistance, and so let Ms. Daitol go.  She then obtained a second job
as a caregiver, looking after two children.  Ultimately under this caregiver
immigration program, Ms. Daitol earned her permanent residency in Canada. 
She then obtained a job as a waitress in St. Albert, Alberta.

[10]        
In October 2005, Ms. Daitol moved to Vancouver, where she has lived
ever since.  She became a Canadian citizen in October 2006.  One of her jobs in
her early years in Vancouver was as a telemarketer, selling newspaper
subscriptions over the telephone.  While doing that, she decided to take
medical office assistant training at a private college in Vancouver.  She
obtained a student loan for that program.  That program lasted about nine
months and she obtained her medical office assistant diploma from that private
college on December 22, 2006.

[11]        
Upon finishing her medical office assistant training, she did not get
hired in that field right away, but her friend, Melanie Agostinho, told her
about a job opportunity at a driving school, where Ms. Agostinho was
working.  Ms. Daitol applied and obtained employment there (the “driving
school”).  Ms. Daitol’s employment at the driving school was sedentary:
she answered the telephones and worked at a desk.  Essentially she was
receiving calls from the driving students and new customers and registering
customers.

[12]        
Ms. Daitol’s place of employment was the driving school when the
July 1, 2007 motor vehicle accident occurred.

The Plaintiff’s Injuries

[13]        
The accident was serious and an ambulance was called to the scene.  It
took both Ms. Daitol and Ms. Agostinho to Vancouver General
Hospital.  There, the plaintiff was examined and released in the early morning
hours of July 1, 2007.  The ambulance crew report noted that she had some
c-spine discomfort, softness in the abdomen, low lumbar pain, and left knee
discomfort.

[14]        
Ms. Daitol described in her evidence that the force of the
collision had caused the driver’s side door next to her to be bent inwards
towards her.  However, she does not recall it hitting her.  She recalls that
her left knee was very painful and swollen, and that she found it difficult to
move it, and thus needed help to get out of the car.  She found her knee to be too
painful to allow her to stand up.

[15]        
When Ms. Daitol was discharged from the hospital that morning, she
was taken by wheelchair to the exit.  She also recalled being told to return to
the hospital if she vomited.  This did happen, and so she returned to the
hospital later that day and had a CT scan.

[16]        
All of the scans and x-rays at the hospital came back normal.

[17]        
Ms. Daitol’s history did not involve many visits to doctors.  She
recalls having good health growing up and maybe seeing a doctor only two or
three times in the Philippines.  One of those times was as part of her
requirements to immigrate to Canada, when she needed to be certified as having
good health.  Another time was when she was a teenager and had a fever and was
vomiting.

[18]        
Thus, Ms. Daitol did not have a family doctor in Canada prior to the
accident.  Rather, she would attend at a drop-in medical clinic if she needed. 
In this regard, she had a prior history of occasionally visiting the West End
Medical Clinic.  This is where she went after the accident.

[19]        
The doctor that Ms. Daitol saw after the accident, at the West End
Medical Clinic, was Dr. Johann van Eeden.  She saw Dr. van Eeden on
July 4, 2007.

[20]        
Dr. van Eeden testified at trial.  He was taken to his clinical
records for the first visit of July 4, 2007.  His notes indicate that the plaintiff
complained of left knee pain, neck pain, upper back pain, hip, groin, upper
chest (seatbelt injury), and “TM” pain, referring to the temporomandibular
joint (TMJ) which is the jaw.

[21]        
The accident occurred in the early hours of Sunday, July 1, 2007.  The
next day, Monday July 2, was a statutory holiday.  The plaintiff took off the
remaining work days of that week (July 3, 4, 5, and 6, 2007).  She returned to
work the following week, but did not work July 17, 18, 19 and 20 as a result of
the accident.

[22]        
Ms. Daitol recalls her most severe complaint when she first saw Dr. van
Eeden to be the pain in her left knee.

[23]        
Ms. Daitol could only recall having some upper back pain after the
accident and no mid-back or low back pain.  She believed the upper back symptoms
resolved approximately one year after the accident, although she could not put
a precise date on it at trial.  At least by the time of her April 27, 2011
examination for discovery in this proceeding, she testified that she was not
suffering from any back pain, and had not been for at least six months, i.e. by
sometime in late 2010.

[24]        
As well, Ms. Daitol had some pain as a result of the seat belt
restraint, after the accident, but this pain also resolved within the first
year after the accident.

[25]        
Ms. Daitol also experienced headaches after the accident which she
felt were associated with pressure in her ears, and ultimately her TMJ
problem.  She said that sometime in 2008 the headaches went away and the
pressure in her ears, which was accompanied by feelings of nausea and
feverishness, resolved.  However, this did not mean her TMJ problems were
resolved.

[26]        
Ms. Daitol did not complain of any long term neck problems.  She
felt some sharp pains at the back of her neck for a short period right after
the accident, but that largely resolved over time.  By the time of trial she
felt that it was very occasional that she would get neck pain.  She
acknowledged that she has been in another car accident since, in December 2010,
and her current neck symptoms could be attributable to that accident.

[27]        
By and large, the chief lingering medical problems of Ms. Daitol
appear to be problems with her left knee, some problems with her right knee as
a result of it compensating for her left knee, and her TMJ problems.

[28]        
At her doctor’s recommendation Ms Daitol has undergone physiotherapy for
these problems.  The physiotherapy was not simply passive (such as massage or
heat) but involved her exercising on a stationary bike and doing such exercises
as leg squats.  I found Ms Daitol’s evidence to be entirely credible in respect
of her efforts to follow her doctor’s and physiotherapist’s advice with respect
to exercise.  There is no evidence to suggest that she failed to exercise
sufficiently or failed to follow medical advice given to her concerning
exercise.

[29]        
I find that the plaintiff continues to suffer from left knee pain as
well as TMJ pain.  This is now more than 4½ years since the accident.

Medical Experts

[30]        
The plaintiff tendered the expert opinions of:

(a)           
Dr. David Fenton, radiologist, who provided an MRI report regarding
the left knee dated September 28, 2007;

(b)           
Dr. Patrick Chin, orthopedic surgeon, who provided a report dated
October 26, 2007 and a report dated August 8, 2011;

(c)           
Dr. Bruce Blasberg, dentist and certified specialist in oral
medicine, who provided a report dated September 23, 2009.

[31]        
The defendant did not require the attendance of these physicians at
trial for purposes of cross-examination, and so they did not appear as
witnesses.  Rather, their reports were simply tendered in evidence.

[32]        
In addition, the plaintiff called as a witness Dr. van Eeden, who
provided a report dated January 10, 2010, which was entered into evidence.  Dr. van
Eeden was cross-examined at trial.

[33]        
The defendant called Dr John Arthur, an orthopedic surgeon, who gave
expert opinion evidence by way of a December 15, 2010 report.  He was
cross-examined at trial.

Dr. van Eeden

[34]        
As noted by Dr. van Eeden, prior to the motor vehicle accident, Ms. Daitol
did not suffer from any problems related to her neck, left knee, jaw pain, or
earaches.  He determined this from taking her history and from his review of
her medical records, as he was not her physician prior to the accident. 
However, his evidence in this regard was consistent with Ms. Daitol’s
evidence.   I find as a fact that Ms. Daitol did not have these health
problems prior to the motor vehicle accident.

[35]        
It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol
during the motor vehicle accident were:

·       
New-onset neck-, mid-and-upper back, lower back, right shoulder
and right hip area pain: soft tissue (muscular and connective tissue).  Pain in
this area is largely resolved with some intermittent neck and back pain.

·       
Bilateral TMJ (jaw) pain, right side more than left.

·       
Pre-patellar bursitis of the left knee due to direct trauma to
the knee.  This explained the initial swelling of the left knee patellar area,
which resolved after a few months.

·       
Left knee PFS (patellofemoral syndrome) which is a condition of
direct damage to the kneecap cartilage, causing pain with squatting, deep knee
bending and climbing stairs.

·       
Left knee medial meniscus tear. This is consistent with the
mechanism of injury of the MVA (direct knee impact), supported by direct pain
upon palpation of the joint line, the MRI findings and the longstanding
duration of symptoms.  This is still symptomatic today.

[36]        
The reference to the MRI findings above is a reference to the MRI report
of Dr. David Fenton, which found “possible superiorly surfacing tear” in
the medial meniscus of the left knee.

[37]        
Dr. van Eeden’s opinions that Ms. Daitol sustained these
injuries in the accident were not challenged.

[38]        
I accept Dr. van Eeden’s opinion, and find as a fact that the
accident caused Ms. Daitol to suffer these injuries.  Dr. van Eeden
was a credible witness and had followed Ms. Daitol as his patient from the
July 4, 2007 visit just after the accident through to December 9, 2009, just
prior to the preparation of his report.  While he had not seen her since that
date, there is no suggestion that her condition required follow-up visits with
him.

[39]        
At the visits to Dr. van Eeden, Ms. Daitol consistently
reported ongoing left knee problems and TMJ problems.

[40]        
It is Dr. van Eeden’s prognosis that:

Unfortunately the duration of
injury/symptoms seem to be the most accurate predictor of the future prognosis
thereof, which means her prognosis for complete resolution of symptoms, is at
best guarded at this time.

[41]        
Dr. van Eeden also gave the opinion that:

Chronic left knee and right TMJ
pain will likely limit her physical activities, which may affect her mood and
bio-psycho-social functioning significantly.

[42]        
I found Dr. van Eeden to be a careful witness who did not overstate
his evidence and I did not find any significant flaws in his opinions to arise
during cross-examination, nor were his opinions contradicted.  I therefore
accept this aspect of his evidence regarding prognosis.

Dr. Chin

[43]        
Dr. Chin is an orthopedic surgeon who saw Ms. Daitol at her
lawyer’s request for an independent medical evaluation on October 26, 2007, and
August 8, 2011.

[44]        
In his August 8, 2011 report he noted that Ms. Daitol’s current
complaints pertained to an ongoing primary complaint of persistent left knee
pain and a secondary issue of ongoing right sided jaw pain in the TMJ area.  He
noted that both had not changed over the last four years.  He noted that she
has a walking tolerance of about 15 minutes and has issues in both of her
knees.  In his opinion, her right knee symptoms are likely from
overcompensation.  It is Dr. Chin’s opinion that:

At this juncture, it is still
early or premature to predict Ms Daitol’s prognosis.  However, in the absence
of surgical intervention and four years of non-operative treatment, given that
she has had no improvement, her current prognosis without surgical intervention
is poor to guarded.  As a result, she is now faced with the option of
proceeding with surgical intervention if she is not able to live with what she
has.

[45]        
In addition, Dr. Chin was asked the following question, and gave
the following opinion in his report of August 8, 2011:

Is it possible or is it likely that she will have any
future or permanent residual problems and if so, what is the likely degree of
functional disability she will suffer as a result?

In my opinion, if the medial meniscus tear is confirmed
through arthroscopy and dealt with or treated surgically, Ms Daitol conceivably
could have ongoing or persistent anterior knee pain but improvement in her
medial-sided knee pain.  In my opinion, her current examination is suggestive
that her primary symptoms seem to be medial-sided knee pain and the surgical
procedure would alleviate some of her medial-sided knee pain but unlikely her
anterior knee pain, unless she is able to fully rehabilitate her knee
post-operatively.

In my opinion, it is likely that
she will have a certain degree, albeit a lesser degree, of functional
disability if surgical intervention was considered.

Dr. Arthur

[46]        
Dr. John Arthur, an orthopedic surgeon, was called as a witness by
the defendant and gave expert opinion evidence by way of a December 15, 2010
report.  He generally agreed with Dr. Chin’s first report.  Dr. Arthur
did not disagree that Ms. Daitol has ongoing complaints related to her
right TMJ but noted this was outside his area of expertise.  He agreed that she
also has ongoing complaints referable to her left knee, which on his clinical
examination he felt was largely related to patellofemoral disorder.  He also
noted that the MRI scan indicated, based on Dr. Fenton’s report, the
possibility of medial meniscal tear in the left knee.  Dr. Arthur agreed
with Dr. Chin that there is a possibility that arthroscopic surgery might
provide some benefit to the plaintiff regarding her medial joint complaint in
her left knee, but he felt that it was “unlikely to produce any change in her
patellofemoral complaint”.  He described that complaint as “notorious for lasting
a long time”.

[47]        
Dr. Arthur found that the left quadricep muscle had undergone some
wasting and was measured at 3 cm less than the right quadricep at a point 10 cm
above the kneecap.  While some of that might be related to Ms. Daitol being
right footed, as a right handed person, he thought that perhaps 2 cm of that
measurement was abnormal, and agreed that it could be related to her pain
levels.

[48]        
Dr. Arthur did not think that the knee problem would interfere with
Ms. Daitol’s work as a medical office assistant in the future, but thought
it might compromise her ability to get back into some of her recreational
pursuits, although it was his opinion that she should be encouraged to do so.

[49]        
Dr. Arthur also thought that further physiotherapy, with a specific
emphasis on a quadricep strengthening program, could be appropriate.

[50]        
Dr. Arthur also suggested that Ms. Daitol could benefit from
losing weight.

Dr. Blasberg

[51]        
Dr. Blasberg’s report of September 23, 2009 followed his
examination of Ms. Daitol on September 22, 2009.  In his physical
examination, he noted pain to palpation on both the right and left, but most
severely on the right masseter muscle.  He noted that “[p]ain-free mouth
opening was limited”.  He suggested some “jaw self-management including behavior
modification” and he prescribed a topical non-steroidal anti-inflammatory
medication.

[52]        
Ms. Daitol explained in her evidence that Dr. Blasberg advised
her of some jaw exercises, which she did, and to avoid certain foods, which she
also has done.  Primarily, she no longer eats corn on the cob, nor ribs where
the meat is still on the bone.

Conclusions re Lasting Effects of the Injuries

[53]        
In considering all of the medical evidence, and Ms. Daitol’s
testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol
is likely to have long-term continuing TMJ problems and left knee pain
problems, as well as some right knee problems well into the future, and that
these injuries were caused by the accident.

[54]        
Ms. Daitol was not an athletic woman prior to the accident, but she
was healthy and moderately active, enjoying walking.  While physicians have
made some recommendations to her, the defence does not advance any argument
that Ms. Daitol has failed to mitigate.

[55]        
It was not established in the evidence that any physician had
specifically recommended to Ms. Daitol that she lose weight as part of the
treatment for her knee pain.  However, Ms. Daitol did testify that she had
been attempting to lose weight.  She testified that prior to the motor vehicle
accident, her weight fluctuated in the range of between 120 pounds to 140
pounds, but post-accident she had reached as much as 178 pounds.  She testified
that currently she weighs closer to 159-160 pounds.  Her height is 5 feet
tall.  She testified that she is somewhat frustrated in her attempts to lose
weight because her form of exercise is walking and even simple walking is very
hard for her.

[56]        
Ms. Daitol testified that after the accident, on her doctor’s
recommendation, she started taking physiotherapy three days per week, and as
much as four days per week at one point.  At the physiotherapist’s office, she
did exercises such as a stationary bike and squatting.  For some period of time
she also went two days per week and eventually this became one day per week. 
She recalls going to physiotherapy treatments for close to a year.  Ultimately,
she felt that she had not really been helped much and so stopped attending.

[57]        
The physiotherapist also gave her some acupuncture treatment to her
jaw.  She did not feel that it assisted her.

[58]        
The controversy on the evidence is the extent to which Ms. Daitol’s
injuries might affect her future earning capacity.  In this regard, the medical
evidence was mixed.  No medical evidence suggests that the TMJ problems
suffered by Ms. Daitol will affect her ability to work in the future. Dr. van
Eeden gave the opinion that her chronic left knee pain will likely impact her
job functioning; Dr. Arthur was of the opinion that it would not.  Both
medical experts were simply drawing conclusions based on their assumptions
about the requirements of Ms. Daitol’s work.  Neither physician explored
this issue with the patient or attended her job site or did any formal analysis
of her occupational abilities.

[59]        
I should note that Dr. Arthur’s opinion with respect to prognosis
was somewhat informed by his assumption that Ms. Daitol’s past
physiotherapy program was passive and not active.  I find that this assumption
was not proven, and in fact was incorrect.  On the evidence, it is clear that Ms. Daitol’s
physiotherapy program was an active exercise program, but it did not assist
her.  Regardless, the evidence of the medical doctors is all consistent with
the conclusion that Ms. Daitol is likely to continue to suffer from serious
left knee problems in the future.

[60]        
Whether or not her injuries will affect her future earning capacity is
ultimately a question for me as a trial judge, assessing the evidence as to her
past work history and likely future work history.  Thus, I do not give much
weight to either physician’s opinion as to the impact the left knee injury will
have on her ability to work.  I simply accept and find that she does have
limits in her ability to walk and stand, and suffers pain, due to the injury to
her left knee caused by the accident.

Damages

[61]        
There are four areas of damages claimed by Ms. Daitol: past income
loss; special damages; general damages; and damages for loss of future earning
capacity.  The plaintiff does not advance a claim for cost of future care.

Past Income Loss

[62]        
The parties are agreed that the plaintiff lost 8 days of work at the
driving school as a result of the accident, and that her damages in this regard
total $675.86.  I award these damages to the plaintiff.

Special Damages

[63]        
Ms. Daitol advances a claim for the user fees she was required to
pay for her physiotherapy sessions.  She estimates that she paid in the range
of $1,500-$1,900 in fees out of her own pocket.  She therefore advances a claim
for special damages of $1,500.

[64]        
Unfortunately, Ms. Daitol, who was not represented by her current
counsel at the time, did not keep track of her physiotherapy expenses and has
no corroborating evidence regarding the number of treatments or the exact cost
of them.  At best, her evidence as to her total out-of-pocket cost was a guess. 
While I do not believe that Ms. Daitol would in any way attempt to mislead
the court, nevertheless, her evidence as to her physiotherapy expenses is
inherently unreliable due to the fact that she did not in any way keep track of
her sessions or the cost of them.  As such, I do not award her any amount in
respect of this claim.

Non-Pecuniary Damages

[65]        
Both parties concede that Ms. Daitol is entitled to an award for
pain and suffering and loss of enjoyment of life.  The defendant suggests that
the appropriate range of this award is $25,000; the plaintiff suggests that the
appropriate range is $75,000.

[66]        
My first observation in respect of the analysis under this head of
damages is that I found Ms. Daitol to be a credible witness.  She did
not exaggerate her injuries.  Indeed, some of the problems she reported to her
physician right after the accident she readily conceded in her evidence were
ultimately resolved or so transient as to be minor (such as neck and back
pain).  Furthermore, Ms. Daitol was not a malingerer as she continually
pursued employment.  She also pursued approximately one year of physiotherapy right
after the accident.

[67]        
I find as a fact that Ms. Daitol’s greatest discomfort in the years
since the accident, and likely in the future, and greatest interference with
her enjoyment of life, is due and will continue to be due to the pain in her
left knee.  She continuously is required to use a left knee brace.  For a
lengthy period of time, she was on crutches.  She limits her physical movements
and hence her recreational activities due to the limits of her left knee as she
does not want to set herself back.

[68]        
This is not a case where Ms. Daitol claims to have been active in a
wide variety of athletic pursuits prior to the accident.  She has a life where
she loves to spend time with friends, enjoy good meals, watching television,
and shopping.  She is still able to enjoy these activities, although her knee problems
do limit her ability to walk around shopping.  However, she has also always
enjoyed walking as her main form of exercise.  Given the lack of experience in
her life in pursuing other forms of exercise, it is unlikely that Ms. Daitol
will replace walking with some other activity that does not involve her knee. 
No such activities were suggested by any witness. 

[69]        
I find that she has suffered severe restrictions in walking and will
continue to do so in the future and likely for the rest of her life.  I conclude
that there is no readily apparent alternative exercise for Ms. Daitol at
this stage of her life, other than walking.  As a 36 year old woman, the permanent
impairment of her ability to walk any measurable distance or for any
measureable period of time, without suffering extreme pain, is a significant loss. 
While she still will have plenty of enjoyment in life, she will frequently
suffer pain, both in her recreational pursuits and at work when she is required
to move around to retrieve files or do other light tasks.

[70]        
The plaintiff relies on the following cases as somewhat informative on
an appropriate range of general damages in situations that might be considered
analogous to that here:

·       Bradshaw
v. Matwick, 2009 BCSC 564 (var’d on other grounds, 2011 BCCA 111);

·       Fortin
v. Cousins, 2009 BCSC 720; and

·      
Parker v. Ingalls, 2007 BCSC 1763.

[71]        
In Bradshaw and Fortin, the general damages awarded were
$70,000 each; in Parker, $80,000 was awarded as general damages.  The
defendant relies on the following cases which the defendant says are more
closely similar to the facts in the case at bar:

·       Loy
v. Deacon, [1986] B.C.J. No. 1092 (;S.C.);

·       Robinson
v. Anderson, 2009 BCSC 1450;

·       Boehm
v. Ramage, [1992] B.C.J. No. 2275 (S.C.);

·       Anderson
v. Wilkinson, [1991] B.C.J. No. 3982 (S.C.); and

·      
Varriale v. Westfair Food Ltd., [1994] B.C.J. No 2161
(S.C.).

[72]        
The defendant submits that these cases awarded non-pecuniary damages in
the ranges of approximately $25,000-$35,000 when the awards are adjusted for
inflation to today’s dollars.

[73]        
I find neither set of cases to provide facts very similar to Ms. Daitol’s
situation.

[74]        
In this case, I find it very significant that the one physical activity Ms. Daitol
used to enjoy, walking, has essentially been lost to her.  While she can still
walk somewhat, it is clear that she is no longer going to enjoy it, it is going
to very limited in duration, and she is always going to fear and suffer the
aftermath of increased pain.  Walking is essential to most of daily life, and
is not a luxury that if lost, will not be missed.  For someone who has never
had a natural inclination to pursue a range of physical activities, this is an
even more significant loss as she is unlikely to have the natural athletic
ability that will allow her to generate some other replacement activity.  While
I find that the range suggested by the plaintiff may be high in these
circumstances, I find the range suggested by the defendant to be far too low.

[75]        
I find that an appropriate award for general damages in the circumstances
of this case, taking into account the left knee damage, the fact that it is
causing some problems with the right knee, and the ongoing TMJ complaints, all
caused by the accident, is $60,000.

Loss of Earning Capacity

[76]        
The plaintiff’s counsel suggests that the plaintiff has suffered a loss
of future earning capacity that should be assessed in the range of
$50,000-$70,000.  The defendant submits that the plaintiff has suffered no loss
of future earning capacity.

[77]        
The relevant facts with respect to loss of future earning capacity, as I
find them, are as follows.

[78]        
As mentioned earlier, prior to the accident, Ms. Daitol had taken a
medical office assistant course, but had not yet found employment in that
field, and was working at a driving school.  After the accident, she continued
to work at the driving school, although missed 8 days of work.  A few months
later, she was offered a job as a medical office assistant and took it,
commencing November 28, 2007.

[79]        
Since then, she has working continuously as a medical office assistant,
changing jobs from time to time but over time increasing her income and her own
sense of job security.  She currently works full time as a medical office
assistant at a clinic earning her best rate of pay in the last four years.  She
intends to remain at her current place of employment, and currently enjoys her
job and her relationship with her employer.  She expects this to continue and
has no plans for any job changes or career changes in the future.

[80]        
Counsel for the plaintiff argues that a close look at the plaintiff’s
job history reveals that she has worked at five different jobs since the
accident.  Prior to then, she worked at least four other jobs, three of which
were physically demanding (two caregiver or nanny jobs, and a waitressing
job).  As well, counsel for the plaintiff argues that there have been times in
her past employment as a medical office assistant where Ms. Daitol has
found the job to be physically demanding, for example, where she has had to
move around a clinic to escort patients or to locate and deliver files or
records.  While this is not a current requirement of her job, it is foreseeable
that in future she might need to find another job and her choices will be
restricted due to her physical limitations.

[81]        
Referencing the factors in Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (S.C.), counsel for the plaintiff argues:

The Plaintiff submits that there
is a real and substantial possibility she will sustain future income loss, and
that it should be awarded on a capital loss of earning capacity.  She obviously
has residual earning capacity.  She also obviously has limited access to the
job market based on her skills, training, capacity and experience.  Ms. Daitol
has been rendered less capable overall from earning income from all types of
employment.  She is less attractive as an employee given the restrictions
caused by her left knee. She cannot take advantage of MOA [medical office
assistant] positions which involve the more vigorous job tasks.  She is less
capable of earning income in a competitive job environment.

[82]        
Counsel for the defendant argues that the notion that the plaintiff
might in the future have to work at a job that is physically demanding, as
opposed to the line of work which she has clearly succeeded at in the last four
years, is mere speculation.  The defendant argues that there is no “real and
substantial possibility” that the plaintiff will be unable to work as a medical
office assistant or in a similar administrative capacity at a desk job in the
future, and therefore she has suffered no loss of future earning capacity.

[83]        
In this regard, the defendant emphasizes the case law summarized in Perren
v. Lalari, 2010 BCCA 140, which emphasizes that the onus is always on the
plaintiff to prove “that there is a real and substantial possibility of a
future event leading to an income loss” (at para. 32).

[84]        
The defendant argues that “history is the best predictor of the
future”.  I agree that this aphorism is applicable in this case, both in terms
of general damages and loss of future earning capacity.

[85]        
In terms of general damages, I have found that it is likely that Ms. Daitol’s
past history since the accident of suffering ongoing limitations in the use of
her knee, and her knee pain and TMJ pain, is likely to continue in the future.

[86]        
With respect to loss of future earning capacity, I find that Ms. Daitol’s
preference for working desk jobs that do not require her to walk in excess of
her physical abilities is likely to continue in the future, as will her success
in finding such employment, just as it has since the accident.  I find that
there is no real possibility that Ms. Daitol will be unable to continue to
find employment of a sedentary nature and no real possibility that she would
return to employment that would be physically demanding.  As such, I conclude
that the plaintiff has failed to prove a loss of future earning capacity.  I
therefore award no damages in this category.

Conclusion

[87]        
Ms. Daitol is a hard working woman who had the misfortune of being
in a serious car accident, through no fault of her own.  She has suffered some injuries
that will likely plague her for the rest of her life.  I find that, luckily,
these injuries will not impair her future earning capacity.  I award her the
following damages as against the defendant Mr. Chan:

[88]        
I consider costs payable to Ms. Daitol on Scale B to be
appropriate, but if the parties wish to make submissions in this regard due to
the need to bring facts to my attention, they may seek a further hearing before
me.

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin