IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120323

Docket: M090700

Registry:
Vancouver

Between:

Christine
Mary-Lynne Campbell

Plaintiff

And

Emily Anne
Swetland

Defendant

Before:
The Honourable Mr. Justice Wong

Reasons for Judgment

“If you can look into the seeds of time,

And say which grain will grow and which will not,

Speak
then to me.”

Macbeth I, 3

Banquo
to the witches

By William
Shakespeare

Introduction

[1]            
This is a personal injury claim arising from a motorcycle and automobile
collision that occurred on June 17, 2008 at 6:45 p.m.. The plaintiff, Christine
Campbell, was riding her red 2010 Triumph motorcycle northbound on Highway 6
when the south bound defendant, Emily Swetland, driving a white 1998 Subaru
Forester turned left across her path. Visibility was good, the weather dry and
the roads were dry.

[2]            
The plaintiff’s sustained severe, debilitating and life threatening
injuries.

[3]            
Apportionment of liability is in issue together with assessment of
various heads of damages.

The Background

[4]            
The collision occurred at the intersection of Highway 6 and Storbo Road
about 7 kilometres north of Crescent Valley near Nelson.

[5]            
Highway 6 is a two lane Highway with single lanes in each direction. The
two lanes are divided by yellow lines. The accident occurred at the three way
intersection of Highway 6 and Storbo Road. Storbo Road is a gravel road that
intersects the east side of the highway and leads to a small residential
community; a few metres north of Storbo Road is another gravel road
intersecting the highway from the east side. This road is a driveway leading to
the residence of Randy Negrieff. In between Storbo Road and the Negrieff gravel
driveway is a small creek, some grass, and a mail box. Highway 6 is a winding
road south of the Storbo intersection but the sight line for traffic southbound
to the accident scene is about 400 metres, while northbound traffic line of
sight to Storbo Road would be 300 metres. Police accident investigators
measured a 18.6 meter skid mark left by the plaintiff’s motorcycle prior to it
striking the defendant’s vehicle.

[6]            
The speed limit on Highway 6 is 90 kilometres per hour. Prior to the
collision, the plaintiff passed Aaron Bebleman also traveling northbound on
Highway 6. Mr. Bebleman testified he was traveling between 95 to 100
kilometres per hour when the plaintiff passed him at speeds between 110 to 120
kilometres per hour. She also later passed two other vehicles ahead of Mr. Bebleman.
Being a motorcyclist himself, Mr. Bebleman described the plaintiffs riding
style as methodical, cautious, non aggressive and competent.

[7]            
Mr. Bebleman lost sight of the plaintiff but 15-20 seconds later he
came upon the aftermath of the collision.

[8]            
Mr. Randy Negrieff was ahead of the plaintiff travelling
approximately 90 kilometres per hour.

[9]            
Mr. Negrieff testified he was about 250 metres from the turn to his
driveway, which is the road several metres north of Storbo Road, when he
signalled his intention to make a right-hand turn. At that point he glanced in
his mirror and saw the plaintiff on her motorcycle. He said the rider of the
motorcycle was approximately five or six car lengths from his vehicle and was
in her lane and hunched over her motorcycle in a “tucked position”. He then
looked forward to see his neighbour, the defendant, approaching from the
opposite direction. She was signalling her intention to make a left turn. At
this point, Mr. Negrieff began to slow down as he normally exits the
highway to his driveway at 40-45 kilometres per hour. As he reached the point
where he was about to pass the defendant, he was going half the speed he was
before starting to slow down. He glanced in his rear-view mirror and again saw
the plaintiff. This time she was the same distance behind him or maybe slightly
closer. He also noticed at this point the rider of the motorcycle was sitting
in an upright position causing him to believe that she was slowing down.

[10]        
Mr. Negrieff testified the defendant almost turned in front of him
before hesitating and turning back into her lane. He said his vehicle was quite
a bit larger than the defendant’s vehicle and as he passed by her he looked
down in to her car and noticed she was not looking southbound for oncoming
traffic but was looking back up at him.

[11]        
As he passed the defendant and began to turn off the highway into his
driveway, he realized that the defendant had started to make her left-hand turn
in behind him without stopping. He testified she was going at a speed of one or
two miles per hour as he went by before she accelerated to cross the northbound
lane just prior to the impact. He knew at that point a collision was imminent
and stated the rider of the motorcycle “never had a chance”.

[12]        
Mr. Negrieff immediately pulled over in his driveway after the
impact and ran to the scene. He saw the defendant and described her as
“frantic” and heard her say, “what happened, I never seen anything”. He helped
her out of her vehicle. At that point he could not see the rider of the
motorcycle. He recalls standing with the defendant off the road because it was
unsafe to remain where they were. Shortly after the accident the first
responder, Mr. Bebleman was on the scene. Mr. Negrieff went about
stopping traffic until an ambulance arrived.

[13]        
He described a helicopter landing on his property nearby. Mr. Negrieff
gave evidence that it was apparent that the rider of the motorcycle was badly
injured. He described her foot near her head and she was bleeding badly from
the groin area. He stated she was “mangled pretty badly”.

[14]        
In cross-examination, Mr. Negrieff confirmed that the point of
impact is sixty to seventy feet away from the front of his driveway. He has
owned the property for seventeen years and is familiar with Highway 6. He
admitted that when he looked in his rear-view mirror the first time it was only
to make a quick glance however, he was sure that he saw the motorcyclist at
roughly the same distance both times based the location of the adjacent
telephone poles. He was also sure she was in an upright position when he saw
the plaintiff the second time. He made it clear that he is an experienced rider
himself and was therefore aware an upright seating position meant the rider was
slowing down.

[15]        
At the conclusion of cross-examination the Court asked Mr. Negrieff
to confirm what he saw as he drove past the defendant. He again testified that
he looked down at the defendant in her car as he was driving past her and that
she was looking back up at him. She did not stop but continued to move south
before turning east in front of the motorcycle.

[16]        
The plaintiff testified that she has no memory of the collision except
that a car was turning in front of her and she muttered: “oh you fucking
bitch”.

[17]        
She has no memory of what preceded before the collision. The only
recollection is of her waking up in the hospital. I had the impression she was
clearly trying to recount the event but could not do so. She seemed forthright.

[18]        
Ms. Swetland testified that she was building a home with her
husband in Slocan Park on Highway 6 when the accident occurred. She had been
living at the residence since March 2008 and was familiar with the road. She
was on her way home from the co-op and travelling southbound on Highway 6. She
normally travels the road at 80 kilometres per hour even though the posted
speed is 90 kilometres per hour. When turning off the highway, her routine is
to check for traffic behind, activate her turn signal, slow down and look south
to ensure traffic is clear for the turn. If it is clear she begins her turn
while watching for potholes on Storbo Road. On June 17, 2008, she recalls
slowing, activating her signal, looking south and not seeing any northbound
traffic. She began her turn and slowed to around 10 kilometres or less. She
only saw the motorcycle just before impact.

[19]        
She also testified that she did not stop prior to making her left turn
and that the accident happened on the safest part of the road. She also said
that she could see “pretty far” to the south from the intersection, yet she did
not see the motorcycle until just before impact. She also said the “invisible
motorcycle was travelling north but unfortunately I didn’t see it”.

[20]        
The defendant then testified that the reason she did not see the
motorcycle was because she was looking in her rear view mirror. She said she is
always checking her rear view mirror and that’s possibly how she could have
missed seeing the motorcyclist because she is so paranoid of being hit from the
rear when making a turn because it’s a very narrow road.

[21]        
Jonathan Lawrence, a mechanical engineer and an expert in accident
reconstruction was asked specifically to estimate the speed of the motorcycle
at and prior to the collision.

[22]        
His opinion was based on the following assumptions:

1)    The supplied
police materials accurately and completely describe physical evidence at the
accident scene.

2)    At impact the
Subaru was in the middle of a typical left turn maneuver.

3)    The Triumph
motorcycle weighed 198 kgs.

4)    Christine
Campbell applied an average level of emergency braking prior to the collision.

[23]        
He relied on supplied police material to describe the accident location
and physical evidence at the scene.

[24]        
The police photographs reveal the Subaru at rest at the north east
corner of the intersection. The motorcycle is lying on its right side in the
northbound lane pointing south. There is a continuous skid mark extending south
from the rest position of the motorcycle. According to the police materials
this skid mark was 18.6 meters long. There is also a short secondary skid mark
visible alongside and parallel to this primary skid mark. The secondary skid
mark appears to be about two-thirds of the way along the primary skid mark.

[25]        
He relied on the supplied police material to describe the damage to the
1998 Subaru Forrester driven by Emily Swetland. The supplied photographs
indicate that the Subaru sustained impact damage to the right side just behind
the right front wheel. The right side of the windshield was also damaged,
probably from contact with the rider.

[26]        
He relied on the damage to the Subaru and the Triumph to determine how
they were positioned relative to one another at impact and their closing speed
at impact. He calculated the speed of the Triumph at the beginning of the skid
mark by accounting for the deceleration due to braking.

[27]        
The damage to the vehicles indicates that the front of the motorcycle
struck the right side of the Subaru just behind the right front wheel. Rearward
crush of the Subaru right front door and damage to the right side of the
windshield indicates that the Subaru was on an angle of about 45 degrees across
the path of the motorcycle.

[28]        
The evidence indicates that the motorcycle was stopped suddenly by the
impact. It does not appear to have moved significantly after the impact as it
came to rest at the end of the straight pre-impact skid mark.

[29]        
He compared the damage to the Subaru and the motorcycle to the damage
produced in staged crash tests and estimate that the vehicles were closing on
each other at a speed of between 80 to 95 km/h at impact.

[30]        
The evidence indicates that the Subaru was moving forwards at impact: it
continued moving east after the impact, and the front wheel of the motorcycle
was twisted to the right. He assume that at impact the Subaru was in the middle
of a typical left turn and was therefore travelling at about 19 to 23 km/h at
impact.

[31]        
Based on his assumptions and analysis including the assumptions that the
Subaru was making a typical left turn and was travelling between 19 and 23
kilometres per hour at impact, Mr. Lawrence concluded the following:

1)    The Subaru was
on an angle of about 45 degrees across the path of the motorcycle at impact.

2)    The motorcycle
was probably travelling between 64 and 82 km/h at impact.

3)    The motorcycle
was probably travelling between 83 and 98 km/h at the start of the skid mark.

The Liability Issue

[32]        
In Gervais (Guardian ad litem of) v. Yewdale (1994), 99 B.C.L.R.
(2d) 62, 51 B.C.A.C. 97, 84 W.A.C. 97 the Court of Appeal held a left turning
driver will be negligent when a left turn is commenced in front of a dominant
driver when the dominant driver poses an immediate hazard at the time the left turn
is made. An immediate hazard was defined by the Court in Raie v. Thorpe,
[1963] B.C.J. No. 14, which stands for the proposition that, if an
approaching car is so close to the intersection when the driver attempts to
make a left turn that a collision threatens unless there be some violent or
sudden avoiding action on the part of the driver of the approaching car, the
approaching car is an “immediate hazard” (para 18).

[33]        
Following a review of the law in Luvera v. Benedict, [2010]
B.C.J. No. 2492 it was determined the “onus is on the servient driver
to prove that the dominant driver was also negligent in that his or her
negligence was a cause of the accident” and that a “servient
left-turning driver has an obligation to take reasonable steps to determine if the
dominant driver poses an immediate hazard. The time this is determined is at
the moment just before the turn is commenced”

[34]        
In application of the law, the plaintiff was a dominant driver and the
servient defendant was to ensure there was enough time to make the left turn
without threatening “violent or sudden avoiding action on the part of the
[plaintiff]”. Here the defendant failed in her duty to recognize the
plaintiff was on the road and therefore breached her duty in this regard.

[35]        
Further, the defendant failed to recognise the plaintiff was an
immediate hazard and could not have stopped if the defendant proceeded into the
turn. The plaintiff submits she was an immediate hazard because she attempted
to stop and could not stop before striking the defendant’s car. This fact
suggests the plaintiff was at a point in the road where she was an immediate
hazard before the defendant began her turn.

[36]        
Finally, according to Beecroft v. Ravenek Greenhouses Ltd.
(1997), 46 B.C.L.R. (3d) 324 a speeding motorcycle was not at fault when it
struck a left turning vehicle because the driver of the truck failed to prove
that the motorcyclist deprived themselves of opportunity to avoid collision.
Similarly, in Burgess v. Fisher, 2009 BCSC 1766 the plaintiff had
accelerated to above the speed limit when the defendant made a left turn. Speed
was the main point of dispute as the plaintiff was likely travelling above the
speed limit however, given the facts it was not possible to know if the
collision could have been avoided even if the plaintiff was travelling at the
speed limit. Therefore, since the defendant did not look far enough ahead to
assess whether the plaintiff would pose an immediate hazard the defendant was
100 percent liable.

[37]        
The defendant here has not shown how the plaintiff denied herself an
opportunity to avoid similarly striking the defendant.

[38]        
The plaintiff was there to be seen by the defendant before commencing
her left turn. The defendant failed to keep a proper lookout for oncoming
traffic and commenced her turn without stopping. She was also distracted by
looking in her rear view mirror for any potential speeding vehicle behind her
and looking at the same time at Sturbo Road to line up her turn to avoid gravel
pot holes. Unfortunately she quickly made her turn without further
consideration of potential oncoming traffic. The collision was unavoidable. I
find the defendant one hundred percent in the wrong and wholly liable for the
collision.

The plaintiff’s injuries

[39]        
Emergency crews transported the plaintiff to the hospital in Trail, BC,
by air ambulance. It was there she was stabilized and transferred to Vancouver
General Hospital for immediate surgical intervention.

[40]        
As a result of the collision, Christine Campbell suffered the following
injuries:

1)    severe traumatic
brain injury requiring sedation for intubation to relieve brain swelling, three
areas of abnormality within the brain, cerebral atrophy and post-traumatic
hypothyroidism;

2)    bilateral
internal carotid artery dissection;

3)    open pelvic
injury with an unstable “open book” type fracture construct, requiring open
reduction and internal fixation;

4)    bladder
incontinence because of altered pelvic anatomy and possible sacral nerve
injury;

5)    left forearm
degloving injury;

6)    right wrist
fracture;

7)    left wrist
fracture;

8)    open right tibial
fracture;

9)    left clavicle
fracture;

10) closed right femur fracture with
intra-articular extension;

11) sacral nerve injury affecting
bladder function;

12) chronic pain, mostly pelvic;

13) right foot drop with peroneal
nerve and right thigh numbness;

14) left greater trochanteric
bursitis;

15) post splenectomy requiring
vaccinations;

16) left thumb extensor tendon
rupture;

17) loss of range of motion in the
right knee secondary to multiple intraarticular fractures;

18) laceration of 3/4 of her vagina
and bruised perineum;

19) exposed bone on the right
obturator fossa;

20) Multiple contusions to neck,
thorax and lower extremity;

21) multiple soft tissue injuries;

22) multiple scarring;

23) anxiety; and

24) major depression.

[41]        
The plaintiff has been diagnosed with a mild traumatic brain injury.
Friends testified the plaintiff is no longer the person she was before the
collision. They say her memory is deficient, she is argumentative and is easy
to anger.

[42]        
The plaintiff has sustained serious physical injury. Witnesses testified
she is no longer capable of doing many things she did before the collision. She
lives in constant pain and basically cannot physically manage her home.

[43]        
She spent months in various hospitals including, Trail Hospital,
Vancouver General Hospital, GF Strong, Kelowna Hospital and Nelson Hospital.
She has undergone several surgeries to date it is anticipated she will undergo
several more. People have attended her house to assist with homecare and
rehabilitation. She continues to receive treatment and still receives
assistance at her home.

[44]        
Dr. Simon Horlick, Orthopaedic Surgeon specialist, did an
independent medical examination on the plaintiff on June 23, 2011.

[45]        
His report at Exhibit 4, tab 2 at pages 6-8 state the following:

Assessment: Christine Campbell was involved in a significant
motorcycle vehicle accident on June 17, 2008 resulting in multiple injuries
including but not limited to:

1.     Traumatic
brain injury.

2.     Closed
left clavicle fracture.

3.     Open left
fractures of the distal radius and ulna.

4.     Closed
displaced Smith type fracture of the distal right radius.

5.     Severe
open vertically and rotationally unstable pelvic fracture with some neurologic
involvement involving the sacral nerve roots.

6.     Closed
fracture of the right distal femur with intraarticular extension.

7.   Open displaced fracture of the right proximal tibial
diaphysis metaphysic.

She has gone on to have multiple operations
and is scheduled for possibly more to manage her complex orthopaedic injuries.
Presently, she is left with ongoing complaints referable to her left clavicle
fracture consisting of pain and some functional limitation associated with the
use of her left upper extremity. However, she has accommodated this well and
from her exambatioa and x-rays, it is unlikely that further operative
intervention or specific treatment will be required to manage this problem.

She has residual deformity and loss of
function associated with her severe left distal radius and ulna fracture. She
is scheduled to have further surgery in this regard to relieve possibly some
pain emanating from prominent hardware. Regardless however, she will have
permanent loss of function in her wrist with respect to wrist extension and
flexion, although she should maintain her full pronation and supination. A loss
of this range of motion will have some ongoing impairment with respect to use
of her left hand and grip strength. This will be permanent. However, because
she is right hand dominant, she should be able to accommodate some of this
impairment fairly well. However, some of her vocational and recreational pursuits
will be impacted significantly because of this permanent loss of range of
motion in the wrist region. There is the possibility that she may require
further intervention with respect to her loss of range of motion in the wrist
and the development of posttraumatic osteoarthritis necessitating wrist fusion.
However, at the present time, I think the likelihood of this is relatively low
and less than 51%.

With respect to her right wrist, she has had
good resolution of her fractured distal radius and has essentially regained
normal function and use of her right wrist joint and hand. It is unlikely she
will require any further treatment save for possible hardware removal in the
future. The likelihood of her developing posttraumatic arthritis in the right
wrist region is small in my opinion.

With respect to her pelvis, she has a very
complex injury. She has had to have her pelvis operated on twice because of a
complex non-malunion. Despite these surgeries, she is exhibiting signs,
symptoms and radiographic changes compatible with posttraumatic osteoarthritis
and or non-union in the sacroiliac region. She is under discussion with Dr. O’Brien
about further surgery in this regard including sacroiliac joint fusion. She is
now four years post injury and noting increasing pain and discomfort in the
sacroiliac region and associated functional limitation with restriction in
walking tolerance and sitting tolerance. Although Dr. O’Brien would be the
best person to opine on the probability of further surgery with respect to her pelvic
injury, in my opinion, from her findings to date, it is highly likely, i.e.
greater than 51% that she may require further treatment of her complex severe
pelvic injury to alleviate some of her pain and improve some of her function.
Her pelvic complaints remain her chief and most disabling ones.

With respect to her right lower extremity,
she had a severe injury to the distal femur with intraarticular involvement of
the fracture. She has had two surgeries to improve some of the range of motion
and hopefully reduce some of her pain but in my opinion, based on her
assessment, it is likely that she will develop further posttraumatic
osteoarthritis in this joint and associated functional limitation.
Specifically, it is likely she will develop further loss of cartilage and
associated restriction in range of motion and pain with weight bearing and
weather changes. Treatment options at this point in time will be through
observation and appropriate low impact exercise, and possible use of an
Unloader brace. However, If nonsurgical measures fail and she gets progressive
pain and stiffness in I her knee, then definitive management would be by way of
total knee arthroplasty. Hopefully she can delay or defer this for as long as
possible.

It is my opinion at the present time that
her likelihood for total knee arthroplasty in the short to near term future is
low but that in the long term, i.e. in approximately 7-10 years from now, the
likelihood of a need for right knee arthroplasty will be high and likely in the
neighbourhood of greater than 51%.

Christine Campbell continues to exhibit
dysfunction in the right ankle and foot. The etiology is not exactly clear but
it appears that she had some neurologic deficit associated with some weakness
in her ankle extension and loss of sensation over the dorsum of the foot. This
is suggestive of a peroneal nerve injury or at a possible higher level in her
lumbosacral plexus. This should be investigated further and monitored
carefully. Further assessment by way of neurologic studies, EMG, nerve
conduction would be of benefit. If it is does show progression, then further
intervention will be required based on the etiology of same. A drop foot in the
presence of her associated knee and pelvic injuries would be very disabling for
her and significantly impact on her functional capacity and potential.

Given the severity and multitude of her
musculoskeletal injuries and the fact that several of them are exhibiting
evidence of posttraumatic osteoarthritis, it is unlikely that Christine Campbell
will ever be able to return to her previous vocational or recreational
pursuits. She will also require permanent assistance with activities of daily
living such as cleaning, household chores and procurement of provisions.
Ongoing assistance with respect to physiotherapy, access to a recreational
facility where she can undertake appropriate range of motion and strengthening
exercises for her multiple musculoskeletal injuries will also be
required. Modifications to her house to facilitate level access and avoidance
of stair climbing would also be of benefit.

Summary:
Christine Campbell has sustained multiple musculoskeletal injuries with
significant impact on her activities of daily living. They have also had
significant impact on her physical and emotional wellbeing as well as with
vocational and avocational pursuits. Although the injuries surrounding her
right wrist and to a lesser extent her left shoulder have resolved and left her
with a reasonable outcome, those surrounding her pelvis, left forearm and right
knee and lower extremity have not and will likely require further treatment and
ongoing management and possible surgical intervention. The functional
impairment and disability associated with her pelvic, left forearm and right
lower extremity injuries will be permanent and possibly progressive.

Damages

[46]        
The following items of damages have been settled between the parties.

1)    Non pecuniary
damages $290,000

2)    Special damages:

3)    To January 6,
2012 $14,733

4)    After January 6,
2012 $682.78

5)    Motorcycle
replacement value $9,000

Past Wage Loss

[47]        
At the time of the accident the plaintiff was a 39 year old single
mother with an 18 year old son, Joel, living with her. Joel, from a young age
was diagnosed with hyperactivity disorder, Attention Deficit Disorder (ADD) and
anxiety issues. He was also afflicted with Tourettes Syndrome, had frequent
stomach aches and trouble eating. Joel had trouble sleeping at night and a hard
time simply sitting at the dinner table. It was soon understood he had severe
anxiety disorder, which created difficulties for him in school and in any
social situations.

[48]        
The concern about Joel’s health was magnified shortly after he started
school at age five. It was then he acquired Alopecia Universalis, which
resulted in the loss of all of his hair at the beginning of Kindergarten. The
plaintiff took him out of school for a month, which resulted in his hair
growing back. However, when Joel was later returned to school he lost all his
hair again. The plaintiff pursued several available avenues for help, which
lead eventually to Joel being medicated for his various difficulties.

[49]        
The plaintiff eventually enrolled Joel in the Waldorf School in Nelson,
which went from Kindergarten to Grade 9. The Waldorf School was designed to
allow each student to be taught by the same teacher for every year they
attended. In the beginning of Grade one, Joel had particular difficulty with
one teacher who didn’t want him in his class and Joel had to leave. The
plaintiff home-schooled Joel instead for approximately one year. She then made
an agreement with the school to take him back on condition he remained
medicated.

[50]        
Joel’s Alopecia has left him permanently bald. He continues to suffer
from severe anxiety disorder, social anxiety disorder, Tourette’s Syndrome,
(ADD), anorexia and insomnia. He has more recently been diagnosed with a
seizure disorder, similar to epilepsy. He requires medical marijuana on a daily
basis using marijuana left over from one of the early attempts to produce it
for him.

[51]              
Apparently Joel’s conditions are alleviated when he smokes
marijuana. It eases his anxiety, although it has never fully resolved. His
hyperactivity is not the same as he was when he was a child but his ADD is
still an ongoing issue. His Tourettes is less noticeable problem and he has not
had any verbal or motor "ticks" for some time. Joel still experiences
stomach pain if he is anticipating something that would cause anxiety.

[52]              
Joel uses marijuana to help control his nervous stomach and to
help with his eating. It also helps him to focus. Marijuana seems to have a "reverse
effect on him" when comparing the effect marijuana has on most other
people. It slows him down and narrows his focus.

[53]              
The plaintiff gave evidence that around the time Joel was 13 or
14 he began experimenting with marijuana. The plaintiff noticed this was
beneficial for him. It was helping with his
appetite, relieved his anxiety and made him much calmer. The positive effects
were encouraging so she started allowing him to smoke marijuana before his meals.
She also allowed him to smoke marijuana before going to bed to help him sleep. The plaintiff gave evidence he was not ever
abusing marijuana and was not getting high, rather it was simply helping
him cope.

[54]              
The plaintiff was aware of the
risks of buying marijuana off the street, which she believes can often
contain dangerous additives. She admitted that she began growing Joel’s marijuana
without a licence. She did not feel comfortable broaching the subject with a
physician, as she was afraid of the response she would get and was concerned
with the stigma associated with marijuana.

[55]        
The plaintiff gave evidence that she first started growing marijuana in
the basement of her home on Delbruk Street.
It first started out as just a few plants. She tried growing marijuana
outside of her house because she was uncomfortable having plants in the home,
particularly when Joel’s friends were around. She was also very concerned about
security issues or the potential for a home invasion. It was for this reason
she had partially concealed the access to the basement of her home where the
plants were growing.

[56]        
The plaintiff also grew marijuana illegally in her parents’ house in
Winlaw.

[57]        
In March 2007 the Nelson RCM police executed two search warrants at the
plaintiff’s residence and at her parent’s residence in Winlaw.

[58]        
In November 2007 she was charged with unlawful cultivation of marijuana
for which she later plead guilty on December 9, 2008. Both the plaintiff and
Joel later obtained federal government licences to grow medical marijuana for
personal use.

[59]        
There is a suggestion from defendant’s counsel that she was prior to
March 2007, besides supplying marijuana to Joel for medical reasons also
trafficking marijuana for financial profit.

[60]        
Although the plaintiff’s previous employment were as a barmaid, waitress
or a sales person for a motorcycle accessory shop, for the year 2001 the
plaintiff had no taxable income. For the year 2002, the plaintiff did not file
an income tax return. For the year 2003 the plaintiff’s tax return shows gross
business income of $29,000 and net business income of $20,278. For the year
2004, the plaintiff’s tax return shows gross business income of $38,000 and net
business income of $26,661. For the year 2005, the plaintiff’s tax return shows
gross business income of $39,000 and net business income of $24,812. The
plaintiff was operating a studio gallery featuring ceramic pottery art created
by her. For the years 2006, 2007 and 2008 – the year of the accident – there is
no income tax evidence.

[61]        
Iannone v. Hoogenraad, 1992 CanLII 1630 (BC CA), addresses the
evidentiary burden on a plaintiff to prove a wage loss claim in the absence of
filed income tax returns. The Court of Appeal held (at page 3):

This plaintiff, like others in
similar circumstances, had the burden of leading evidence of past accident
wages losses. That will be a difficult burden to discharge where there is no
corroborating evidence such as income tax returns, but it is not an impossible
burden to discharge.

[62]        
In this case, there is no corroborating documentary evidence in support
of pre-accident income or earnings from:

1)    pottery;

2)    Kootenay Sled
and Wheels; or

3)    Main-Jet Motor
Sports for the years 2006-2008.

[63]        
There are no T-4’s. There are no invoices. There are no receipts. There
are no books or ledgers. The Plaintiff has retained a business card, fliers and
even a floor-plan for a craft show, but there are no sales records.

[64]        
Two potters from the Nelson/Slocan Valley region testified at trial. Mr. Lance
Hall said that he and his wife – a fellow potter – have a combined annual
family income of $40,000. Mr. Robin Dupont testified that he earns $10,000
per year. The Defendant submits that those witnesses are more educated, established
and well-known than the Plaintiff ever was.

[65]        
Mr. Struthers, the Plaintiff’s economics expert, was not able to
reconcile the Plaintiff’s alleged earnings with her education and background.
On the stand, he took great lengths to distance himself from any pre-accident
track record of earnings. His report [Exhibit 12, tab 3, page 5] includes:

“The 2006 Census data on average
incomes reported for females who were employed primarily full-time, full year
in 2005 and who were identified as being in these groups were the equivalent of
approximately $20,780 for the ‘artists’ group, $13,570 for the ‘artisans’
group, and $29,070 for the sales group, if expressed in 2012 dollar values.”

[66]        
I am prepared to use the sales group category, as it approximates the
plaintiff’s previous income. Using the figure $29,070 three and a half years,
it’s gross past income loss is $101,745. Deducting 15% for income tax, the net
figure becomes $86,483.25.

[67]        
Post-accident, the Plaintiff has received social assistance from the
Provincial government. In 2009, she received $9,895.56 [Exhibit 8, tab 23].

[68]        
She continues to receive social assistance/welfare in the amount of
$900/month. From January 1, 2010 to March 1, 2012, that totals $23,400.

[69]        
The Supreme Court of Canada affirmed the deductibility of welfare
payments from income loss awards in M.B. v. British Columbia, 2003 SCC
53, [2003] 2 S.C.R. 477, holding:

25        It is argued that social assistance is not a form
of income replacement, because it is given on the basis of need for the purpose
of relieving poverty.

26        In my view, this
argument is mistaken. It is true that social assistance benefits are intended
to relieve poverty, and that need is the relevant criterion. However, as Smith
J.A. pointed out in his dissenting judgment in the Court of Appeal in the case
at bar, this does not mean that they are not intended as wage replacement. On
the contrary, it suggests that they are intended to replace that part of
employment income that would normally be spent on meeting basic needs (para. 162).
Most people who require welfare require it because they lack sufficient income
to meet their basic needs, and the normal source of sufficient income is
employment of one sort or another. Social assistance therefore replace income
that most people would have obtained through employment. It does not purport to
replace all of the income they would have obtained if they had a job. It only
replaces enough to satisfy basic needs. But it is no less “wage replacement”,
simply because it only replaces a portion of the income a person might
otherwise have had.

[70]        
Following M.B. v. B.C., $33,295.56 (i.e. $9,895 + $23,400) must
be deducted from the Plaintiff’s past wage loss award.

[71]        
Finally, the Plaintiff has received tort advances totalling $19,500
which should be deducted from her pecuniary losses.

[72]        
The net figure for past income loss is therefore fixed at $33,687.69

Loss of Opportunity of Family Income

[73]        
On the date of trial, Mr. Mitchell Hart was 72 years of age. He
first met the plaintiff, who is 29 years younger than Mr. Hart, in 1995.
She was a bartender and server at the time and recalls one of their first
conversations about moving a house onto some land. They started dating, a year
later began co-habitating. Joel was six or seven years old at the time and Mr. Hart
describes him as being a difficult child. He had attention deficit disorder
(ADD), Tourettes Syndrome, an anxiety disorder and an eating disorder. The
plaintiff and her son lived together with Mr. Hart and his son in his home
for five or six years. Joel became more difficult to handle over the years and
it was decided it was better if the plaintiff moved into her own home. In
approximately 2001, the plaintiff moved to her Delbruck home as a renter and
the relationship continued.

[74]        
Mr. Hart gave evidence that he was able to eventually develop a
relationship with Joel and eventually allowed Joel to come and work for him. He
described Joel as being quite good at what he does in construction. He is
working as a Carpenter’s Helper and Labourer. He said Joel is physically very
agile. He took to the work quickly and has gotten better. He has worked with Mr. Hart
for the past six years. The work is seasonal in nature with spaces in between
jobs with each job ranging from four to seven weeks.

[75]        
Mr. Hart gave evidence that prior to the plaintiff’s accident she
was pretty, engaging, sparkling and vivacious. He testified that a year before
the accident the topic of marriage had come up as it had from time to time.
Prior to that there were issues with Joel and with money. Mr. Hart said he
could not afford to get married again at that point so it never happened.

[76]        
He testified that he asked her to marry him some months before the
accident and she said “yes”. The proposal was made when they were out
for dinner in Castlegar some months before the accident. There was nothing
really firm, no discussion about specifics, no date set, although Ms. Campbell
did begin looking for rings.

[77]        
Mr. Hart recalls asking her again a few months after the accident
if she would marry him and she said “yes”. This time it was in Vancouver
when the plaintiff was in a wheelchair and was being pushed along by Mr. Hart.
Things began to change shortly thereafter however, and he noticed her
personality was different. She was forgetful, angry, confrontational, in pain,
and difficult to live with. They have not had a physical relationship since the
accident but remained good friends.

[78]        
Mr. Hart gave evidence that the motor vehicle accident has
prevented their relationship from moving forward. He stated that if the
accident hadn’t happened they would be married. He testified his annual income
is between $30,000 to $70,000 per year and $30,000 to $40,000 per year on
average. He owns his own home, which has an assessed value of $450,000 and
currently has a mortgage balance of $50,000.

[79]        
Ms. Campbell gave evidence that Mr. Hart was determined to
marry her and he had asked repeatedly. He asked her again one evening when they
were out for dinner before the accident and this time she accepted. She wanted
to elope but Mr. Hart wanted a large ceremony and it was something that
had remained unresolved.

[80]        
Ms. Campbell gave evidence that after the accident Mr. Hart
was extremely supportive and after work each day he would return home and feed
Joel before attending to her in the hospital. His show of support rekindled
things and he proposed marriage after the accident while Mr. Hart was
pushing her in a wheelchair on Broadway Street. She started shopping for a ring
and they talked about living together at his house. They moved in together
after she was released from the hospital but she began to realize that she was
becoming a burden on him.

[81]        
Ms. Campbell gave evidence that she has had changes to the anatomy in
her pelvic region. Her bladder is damaged leaving her completely incontinent.
In certain areas of her body she has no feeling and is mostly numb in large
sections of her right leg, right foot, hip and buttock. Her genitalia is
deformed, missing pieces without sensation.

[82]        
After her second pelvic surgery he lost all interest and broke off the
relationship for good.

[83]        
In Reekie v. Messervey, [1989] B.C.J. No. 797, 59
D.L.R. (4th) 481 (B.C.C.A.) the Court of Appeal awarded the plaintiff $50,000
for the loss of opportunity to marry. Lambert J.A. explained the significance
of this head of damage and suggested a more appropriate heading:

This aspect of the damage award
was called “Loss of Opportunity to Marry” by counsel and by the trial judge.
But marriage itself is not the significant point. The significance lies in the
loss of an opportunity to form a permanent interdependency relationship, which
may be expected to produce financial benefits in the form of shared family
income. Such an interdependency might have been formed with a close friend of
either sex or with a person with whom a plaintiff might have lived as husband
and wife, but without any marriage having taken place. Permanent financial
interdependency, not marriage, is the gist of the claim. For the sake of
simplicity and consistency, I will now usually call this head of loss: “Lost
Opportunity of Family Income”.

[84]        
Lambert J.A. then explained that there is a pecuniary and a
non-pecuniary aspect to this head of damage and they must not be confused:

The second point to note is that
there is both pecuniary and a non-pecuniary aspect to loss of opportunity to
form a permanent interdependency relationship. The proper course is to consider
the non-pecuniary aspect in the award for non-pecuniary damages, and the pecuniary
aspect in the award for other pecuniary losses. Care must be taken to
distinguish the two and care must be taken to avoid double compensation. Loss
of the rich emotional benefits of a loving relationship must be compensated for
under the heading of “non-pecuniary loss” or not at all. “Lost opportunity
of family income” deals only with the financial aspects of the loss of an
opportunity to form such a relationship.

[85]        
Accordingly, the plaintiff claims that but for the accident she would be
married to Mr. Hart. She points out that he is almost 30 years her senior
and that in all likelihood he would predecease her and that she would have been
entitled to receive the majority of his estate. Mr. Hart testified he has
some income with savings and approximately $400,000 equity in real estate.

[86]        
The plaintiff submits Mr. Hart’s two sons may be entitled to a
portion of his estate however, this calculation is easily quantified and that
as a spouse she would be entitled to more than fifty percent of his net worth.

[87]        
The plaintiff submits her loss is $250,000 under this head
of damages.

[88]        
In response defendant’s counsel submitted:

However the factual evidence is completely contradictory. The
Plaintiff testified on Discovery that she had broken up with Mitch Hart long
before the accident and did not have a gentleman friend at the time of the
accident. On the other hand, Mr. Hart testified that a few months prior to
the accident, he had proposed marriage to the Plaintiff who said “yes” and was
even looking for a ring.

Albeit, Mr. Hart also said that he was only ready to
propose marriage to the Plaintiff when he was satisfied that she would not be
economically dependent upon him. His earnings average $30,000 to $40,000 per
year. Mr. Hart was quite clear that he could not afford to take on the
economic burden of the Plaintiff and/or her son.

The Defendant submits that
Plaintiff has not met the burden of proof of establishing a pecuniary loss of
inter-dependency on a balance of probabilities.

[89]        
In the end result, I think the plaintiff’s claim of loss is
unsubstantiated or speculative at best. Mr. Hart had previously stated
that he was not prepared to marry the plaintiff if he could not afford the
economic burden of the plaintiff. He finally also broke off any thought of marriage
with the plaintiff, post accident when she became confrontational and difficult
to live with.

[90]        
Accordingly, this item of claim must fail.

Interest on Loans

[91]        
The plaintiff in opening and closing submissions has claimed interest
incurred on loans post accident in order to complete necessary renovations to
her home and funds to cover her living expenses. She submitted that post accident,
with her severe injuries, she was incapable of gainful employment. Her only
source of income was a $900 monthly government disability cheque. Hence the
loans from lending institutions with high rates of interest. The total interest
now owing from two loans is now $42, 453.

[92]        
It should be noted the plaintiff’s claim for the cost of financing her
loans is not pled in her Notice of Civil Claim.

[93]        
The Defendant submits that it is not a recoverable head of damage. It is
not known to law, by virtue of remoteness, or it is a special damage; special
damages have already been resolved by agreement of the parties.

[94]        
Dating back to the 1933 decision of the House of Lords in Leisbosch,
Dredger v. Edison S.S. (Owners) [(1933) A.C. 449], the basic principle is
that the subject of negligence:

Should recover such a sum as will
replace them, so far as can be done by compensation in money, in the same
position as if the loss had not been inflicted on them, subject to the rules of
law as to remoteness of damage.

[95]        
The House of Lords denied compensation for a special loss or extra
expense due to the financial position of the plaintiff. Lord Wright held at
page 460:

But the appellant’s actual loss
in so far as it was due to their impecuniosity arose from that impecuniosity as
a separate and concurrent cause, extraneous to and distinct in character from
the tort; the impecuniosity was not traceable to the respondents’ acts, and in
my opinion, was outside the legal purview of the consequences of these acts.
The law cannot take account of everything that follows a wrongful act’ it
regards some subsequent matters as outside the scope of its selection, because
‘it were infinite for the law to judge the cause of causes,’ or consequences of
consequences.

[96]        
In employment law, interest paid on monies borrowed to cover personal
expenses while in between jobs have been held not to be recoverable as special
damages [Millman v. Leon’s Furniture Ltd. [1983], 83 CLLC 14,071 ((Ont.
Co. Ct.) and Kozak v. Montreal Engineering Co. (1984), [1985] 2 WR 641
at page 647 (Alta. Q.B.)].

[97]        
Similarity, in contract law, losses arising from a
plaintiff’s impecuniosity or lack of financial resources have been held not
recoverable [Freedhoff v. Pomalift Industries (1971) 19 DLR 3d 153 at
page 158 (Ont. C. A.)].

[98]        
At this trial, it has been established that the Plaintiff carried a
heavy debt load prior to this accident, this included:

a)       
money borrowed from multiple friends and family members for the
down payment on her house;

b)       
a mortgage on her house in 2005;

c)        
$30,000 added to her house mortgage in 2006;

d)       
$50,000 added to her house mortgage in 2007;

e)       
$30,000 borrowed from Mitch Hart to purchase her truck
immediately prior to this accident;

f)          
unspecified and unpaid income tax for 2006 (when she allegedly
earned $60,000); and

g)       
unspecified and unpaid income tax for the year 2007 (when she
allegedly earned $60,000).

[99]        
The Plaintiff spent the initial months post-accident in hospital,
but her first lawyer arranged a $30,000 “litigation loan” on November 13, 2008.
Of that $30,000, $3,000 was immediately paid as a “processing fee”. After 18
days, $600.00 of interest was already due and owing.

[100]    
The Defendant submits that the loan was a result of the Plaintiff’s
pre-accident indebtedness, not any losses sustained by the Plaintiff as a
result of any negligence by the Defendant. If they were, then such losses are
too remote and were not reasonably foreseeable to the Defendant.

[101]    
If a person’s own impecuniosity is the cause of damage, then that
damage is not recoverable [Roopam
Fashions v. Greenwood Insurance and Broco (2008) BCPC 0254].

[102]    
The Defendant further submits that the Plaintiff has not
reasonably mitigated her financial situation. She has not tried to sell off her
classic and prize-winning Harley motorcycle, her exercise machine and the clay
art remaining in her studio.

[103]     The
cost of litigation financing, while not a recoverable head of damage, may be
a proper disbursement. However, the most recent law out of both British
Columbia and Ontario is that claims for litigation loan financing and interest
are not recoverable [MacKenzie v. Rogalasky, 2012 BCSC 156 and Giuliani
v. Region of Halton, 2011 ONS C5119]. In Giuliani, Mr. Justice
Murray commented that the loan which the Plaintiff had obtained from Lexfund
Inc. was:

in effect a contingency arrangement which allows the lender
to make huge profits from the proceeds of litigation rather than from a
commercially normative interest rate on a risky loan. (para. 52)

and

I am in complete agreement with
the submissions of Defendants’ counsel that: "this Court should not
reward, sanction or encourage the use of such usurious litigation loans, which
in this case has interest provisions that are arguably illegal, otherwise such
loans will be seen to be judicially encouraged and could become a common-place
tactic." I agree that an award of interest in this case would likely have
an adverse impact on other Defendants’ decisions to proceed to trial or to
Appeal. I think the Defendants’ counsel is correct in stating that access to
justice is a two-way street. As I have indicated above, to award interest as
requested by the [Plaintiff’s counsel] would not facilitate access to justice and
would undoubtedly bring the administration of justice into disrepute. (para. 59)

[104]     I agree
with defence counsels submissions on this head of claim and conclude that it is
not recoverable.

In Trust Claim – Mitchell Hart

[105]     Mr. Hart
learned about the plaintiff’s accident when he received a call from a friend on
his cell phone. He said “Chris is hurt and it is pretty bad”. He knew
she was being taken to the Trail Hospital, so he went there directly and
arrived before she did.

[106]     For the
first six months the plaintiff was bedridden and he traveled with her on
several occasions to Vancouver for treatment. He would also bring things to the
hospital for her. She was in hospital in intensive care and in less intensive
care for three or four weeks. She also spent time at the Nelson Hospital
afterwards. She returned to Vancouver for a second operation nine or ten months
later. She had to go through another recovery and surgical procedure again. He
provided assistance to the plaintiff by pushing her wheelchair whenever she was
able to go outside. He stated he helped with nearly everything after she was
released from hospital.

[107]     She came
to live again at his house for a couple of months after the accident. When she
returned to the hospital Mr. Hard was responsible for moving her in and
out, running errands, taking care of business for her on the outside, picking
up bills, doing banking or whatever was needed. Every time she traveled to
Vancouver he went with her. He made arrangements to take time off from his jobs
to be with her when she needed him. He normally likes to be on the job site at
all times but made exception in this regard.

[108]     Mr. Hart
described the plaintiff’s home as being in the middle of renovations at the
time of the accident. There was a hole in one wall, missing sliding door,
kitchen was torn apart, it needed full
electrical supply and it did have a functional washroom. It is a small house
with two bedrooms. The rest of the house was in the framing stage. It was "a
construction site". He got busy and enclosed the porch, made the
ceilings uniform eventually turning the enclosed porch into a dining room. He
said there was a lot of structural work to be done.

[109]     The plaintiff gave evidence that after the
accident Mr. Hart was extremely supportive. He would work all day and then
return home, feed Joel, and return to the hospital to sit with her. Mr. Hart
cared for the plaintiff’s dogs for six or seven months while they lived in his
home. Although he is not really ”a dog person" he nevertheless fed
them and let them out when necessary.

[110]     Compensation
and trust claims are allowed where a family member’s efforts result in
replacing expenses which would otherwise have been incurred, such as hiring a
housekeeper, personal assistant or care attendant: Cummings v. Olsen
(1996), 82 B.C.A.C. 241 (C.A.)

[111]    
Based on the circumstances, I think it is appropriate that the
plaintiff be entitled to advance an ‘in-trust claim’ for
Mr. Hart for his role in completing her renovations to her house, looking
after Joel and transporting the plaintiff to Vancouver to attend the hospital.

[112]     I would award her $15,000 to be held in trust for
Mr. Hart.

Loss of Future Earning Capacity and Income

[113]     The
plaintiff attended several doctors who provided evidence that she will likely
not work again.

[114]    
Dr. Christopher Watt, Occupational Physician, wrote in his report
of December 1, 2011 (Exhibit 5, Tab 1)

State of Recovery:

70.       It is my opinion that with respect to her pelvic
and right leg injuries she is not at maximal medical improvement. These are her
most serious and disabling problems. She has further surgery pending. This may
provide further pain relief and perhaps some modest functional improvement.
However, in my opinion even further surgical management is unlikely to
significantly improve her current functional limitations. Therefore, while she
may not yet be at maximal medical improvement with respect to her pelvic and
right leg impairments, it is my opinion that regardless of further medical
management these current impairments are permanent and she will continue to
have permanent disabilities with respect to her pelvis and right leg.

71.       It is my opinion that with respect to the injuries
involving her left shoulder, left forearm and wrist, right forearm, and right
foot drop, she is probably at maximal medical improvement. Therefore these
impairments should be considered permanent.

72.       In my opinion it is probable that her left wrist
and right knee impairments will be progressive and degenerative. She is
probably going to go on to require a right knee arthroplasty within the next
five years. It is also my opinion that she probably has a progressive
degenerative condition with respect to her pelvis and sacroiliac joint. Despite
two surgical procedures on her pelvis she continues to have significant disabling
pain. She is probably going to go on to require further surgery.

73.       In summary then, it is my opinion that she has
permanent impairments with respect to her pelvis, left wrist, right knee, right
ankle, pelvis, and sacroiliac joint/low back.

Barriers to Recovery and Return to Work:

74.       She cooperated fully throughout the assessment.
There was no evidence of drug or alcohol abuse. There was no evidence of
exaggerated nonorganic pain behaviour. She does not over emphasize her
complaints. She appears to be appropriately motivated to be as functional as
possible. There are no obvious barriers to full recovery over which she has
control.

Return to Work:

75.       It is my opinion that she is not fit to return to
either of her pre-accident jobs as a self-employed potter or in motorcycle
sales. Based on her functional limitations observed during medical assessment
and functional testing over two days she does not meet the physical demands for
either of these jobs.

Validity of Effort Assessment:

80.       It is my opinion that she gave a satisfactory
Validity of Effort Assessment. It is my opinion that she did not limit herself
because of her reported symptoms during the functional capacity testing. It is
my opinion that she gave a reasonable and consistent effort during the
functional capacity testing. It is my opinion that this is a reasonable
assessment of her current physical abilities.

Competitive and Future Employability:

81.       It is my opinion that
both her competitive and future employability have been very significantly and
adversely affected as a result of the injuries sustained in the motor vehicle
accident of June 17, 2008. She has marked limitations for all body positions
(sitting, standing, walking, kneeling, stooping, and crouching) as well as
virtually all other functional activities (lifting, reaching, pushing, pulling,
carrying).

[115]    
Dr. Donald Cameron, neurologist, prepared a report on October 27,
2011, opining (Exhibit 4, Tab 1):

44.       It is my opinion that Ms. Campbell has been
rendered permanently severely disabled and probably unable to resume
competitive employable status permanently in the future because of ongoing
cognitive problems due to residual effects of the complicated mild traumatic
brain injury that she sustained at the time of the accident, the chronic pain
condition, and the chronic psychological problems that have developed as a
result of these multiple severe injuries that she sustained at the time of this
accident. It is my opinion that Ms. Campbell will probably remain
permanently severely disabled because of this chronic pain condition. Ms. Campbell
has not been able to, and she will not be able to return to recreational
activities that she enjoyed prior to this accident predominately due to her
physical and psychological problems that she has suffered with following this
accident.

45.       I have assessed Ms. Christine Campbell at the
age of 42 years. Over the next 10 years Ms. Campbell will start to notice
a decline in physical capacity, ability to cope with stress and associated
psychological dysfunction as well as increased physical limitations with
respect to stamina, mobility and daily functional ability. It is my opinion
that Ms. Campbell will probably require an increased level of assistance
regarding activities of daily living and she may have to move into a supervised
living situation earlier than would have been anticipated had she not been
involved in this motor vehicle accident because of these marked disabilities
with respect to physical, cognitive and psychological function, all as a result
of the multiple severe injuries that she sustained at the time of the motor
vehicle accident of June 17, 2008.

50.       I have assessed Ms. Campbell
in June of 2011, three years following the date of the motor vehicle accident.
It is my opinion that Ms. Campbell will probably not improve to any
further significant degree with respect to the physical injuries including the
neurological injuries to her brain and lumbosacral plexus of nerves that she
sustained at the time of the accident of June 17, 2008. It is my opinion that Ms. Campbell
will remain permanently severely disabled and will probably not be able to
regain competitive employable status probably permanently in the future because
of these ongoing combined deficits resultant from the multiple severe injuries
that she sustained at the time the motor vehicle accident of June 17, 2008.

[116]    
Dr. Simon Horlick, orthopaedic surgeon, wrote on June 23, 2011 (Exhibit
4, Tab 2):

Given the severity and the multitude of her musculoskeletal
injuries and the fact that several of them are exhibiting evidence of
posttraumatic osteoarthritis, it is unlikely that Christine Campbell will ever
be able to return to her previous vocational and recreational pursuits. She
will require permanent assistance with activates of daily living such as
cleaning, household chores, and procurement provisions. . (page 8)

The functional impairment and
disability associated with her pelvic, left forearm and right lower extremity
injuries will be permanent and possibly progressive. (page 8)

[117]    
Dr. Remi Nader, psychologist, wrote on September 8, 2011 (Exhibit
4, Tab 3):

Finally, Ms, Campbell’s cognitive
symptoms (related to possible traumatic brain injury, poor sleep, ongoing pain,
anxiety symptoms and depression) would make it almost impossible for Ms. Campbell
to function effectively in any work environment. She has very low levels of
tolerance for mental effort, as demonstrated by her inability and unwillingness
to complete questionnaires as part of the assessment. She tires very easily and
the more tired she gets, the more irritable and angry she becomes; this was
observed in her behaviour over the course of the assessment. Other cognitive
deficits such as executive function problems, impaired planning and memory
problems would all interfere with her ability to function in any vocational or
recreational activities that required mental effort. Ms. Campbell is
easily overwhelmed and has very little tolerance for stress, making it highly
unlikely she would be able to work or function effectively in any potentially
stressful environment/work setting. (pages 11-12)

[118]    
Dr. R. V. Wilkinson, neuropsychologist, wrote on July 31, 2011 (Exhibit
4, Tab 5):

I expect that she will have great
difficulty forming new close lasting relationships because of personality
changes attributable to brain trauma and the numerous psychological adjustments
required by her physical injuries and secondary complications. I anticipate
that she will never be able to earn her living. (para 5, page 5)

[119]     Prior to
the collision the plaintiff was a single mother working different jobs with a
history as a waitress and bartender. In the years leading up to the collision,
she had worked as a self employed potter under her company name, Chrizm Clay
Studio and as a sales representative at Kootenay Sleds and Wheels and Main Jet
Motorcycle Performance. There was every indication she would have continued to
work in these fields and taken advantage of new opportunities.

[120]     Also she
said she would have branched into real estate and if she lived to age 70, she
hypothesized her present value loss would be $1,389,282.

[121]    
From Loeppky v. ICBC, 2012 BCSC 7

[93]      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.

[122]     The
starting point for this head of damage is the Plaintiff’s pre-injury capacity.
There is no good evidence of what she
earned or was capable of earning in the 2 ½ years immediately pre-accident.

[123]     The
Plaintiff says that she was working full-time at pottery and part-time at
motorcycle sales. The Defendant says that there is an equal likelihood that she
was supporting herself and her son through the production and distribution of
marijuana. There no compelling paper-trail for either. The onus of proof is on
the Plaintiff.

[124]    
Again, the Defendant submits that the best evidence is either:

a)      
$10,000 to $20,000 per year as a potter as per Mr. Hall and Mr. Dupont,
other potters who gave evidence; or

b)      
$13,570 per year for artisans, $20,780 for artists, and $29,070
for salespeople as per Mr. Struthers [Exhibit 12, tab 3, page 5].

[125]    
The Defendant agrees that Mr. Struthers’ multiplier to age
65 is $16,533 per $1,000 of annual income (or loss) [Exhibit 10, item #9,
Attachment #6; Exhibit 12, tab 3, page 7]. Therefore:

·      
at $13,570. the net present value of the loss to age 65 =
$224,353;

·      
at $20,780. the net present value of the loss to age 65 =
$343,556; and

·      
at $29,070, the net present value of the loss to age 65 =
$480,614.

[126]    
However, the product of that multiplier assumes: (i) no residual
income earning capacity; and (ii) survival based upon probabilities for the
average BC-resident female of the Plaintiffs age. The Defendant submits that
neither of those assumptions is appropriate to the facts of this case, so the
product of Mr. Struthers’ multiplier must be scaled downward.

[127]    
In terms of residual income earning capacity, back in June of
2011, the Plaintiff saw "herself as capable of working at a Physical
Demand Capacity of ‘sedentary’." Dr. Watt opined that "this is
generally consistent with her observed performance and therefore suggests that
she has an accurate and realistic appraisal of her current abilities and
limitations’" [Exhibit 5, tab 1, page 16]. Dr. Watt concluded that
"her current Physical Activity status, in accordance with the national
Occupational Classification, is estimated to be [Exhibit 5, tab 1, pages 17, 19
and 20]:

·      
B2 –  Capable
of sitting and/or standing

·      
LI –  Capable
of upper limb coordination

·      
SI –  Capable
of limited physical demand – lifting, pushing, pulling and carrying up to 5
kilograms occasionally

[128]    
Additionally, on the basis of Dr. Watt’s assessment,
"she has no specific restrictions for Environmental Conditions (EC’s)
tolerances" [Exhibit 5, tab 1, page 10].

[129]    
How do those capabilities compare with jobs the Plaintiff has had
or might have in the future?

[130]    
According to Mr. Nguyen’s report [Exhibit 5, tab 2, page 5],
the physical demands of "Sculptors" are B4, L1 and S2. That is to
say, the Plaintiff would need some improvement in regard to her body position
and strength capabilities to work as a sculptor.

[131]     More
significantly, the physical demands for ”Technical Sales Specialists –
Wholesale Trade” are Bl, L0 and S1 [Exhibit 5, tab 2, page 5]. Therefore, the
Plaintiff already meets the physical capabilities to work in sales.

[132]    
There is evidence that the Plaintiff may engage in any or all of these
four (4) vocational interests:

i.  Renovations

·       
Mitch Hart is a contractor and builder by trade. He testified
that, after her February 2009 surgery, the Plaintiff was directly involved in
the renovations to her home, including supervising the work, arranging for
sub-trades, and travelling to Calgary to pick out her kitchen.

ii.  Medical Marijuana
Production

·       
The Plaintiff was licensed to produce medical marijuana for the
periods September 24, 2010 to September 24,
2011 and November 16, 2011 to
November 16, 2012. Those licences remain current [Plaintiff’s Opening,
paragraph 16].

·       
Ms. Campbell-Wyman started working for the Plaintiff in July
of 2011 testified that the Plaintiff drives out to Winlaw for the purpose of
producing marijuana. That cannot be reconciled with the Plaintiff’s testimony
that her grow-op was ”shut down for good*’
in the late Spring or early Summer of 2011.

iii.  Vocational Pottery

·       
As at September 3, 2010, the Plaintiff "reported she feels
more capable of trying pottery in her studio for leisure and pre-vocational
activity", "requested some assistance to clean-up her studio area to
enable safe access with her compromised mobility" and "she also
requested support for funding materials for pottery work".

·       
When Ms. Boniface, Occupational Therapist, assessed the
Plaintiff in July of 2011, the Plaintiff identified "clay artist"’ as
an activity that she would like to resume.

·       
Ms. Boniface recommended: "She would benefit from
assistance from a vocational counsellor to help her explore alternative
productive activities (paid and unpaid) as well as an occupational therapist to
assist her to adapt activities that she
would like to resume (e.g. clay artist)".

·       
Mr. Cory Anderson is the Plaintiff’s treating Occupational
Therapist. He was the only treating health care professional to testify at
trial. Mr. Anderson was called to testify by the Defendant.

·       
According to Mr. Anderson, the Plaintiff went out and bought
some clay of her own initiative. The August 19, 2011 invoice from Greenbarn
Pottery was submitted for reimbursement by the Plaintiff to Kootenay Health
Services. ICBC reimbursed that expenditure.

·       
On October 25, 2011, Mr. Anderson conducted an in-home
assessment. The Plaintiff already had
instructed her home-care girls to clean up her Studio. The Plaintiff
"reported that she was previously employed as a potter and is looking
forward to returning to her studio on a regular basis". They discussed
that she now required an ergonomic potter’s wheel. They put their heads
together and the Plaintiff put Mr. Anderson on to a company that makes
wheels. She requested a Shimpo model which could be used on her table-top.

·       
Mr. Anderson had both
that new wheel and an adjustable height potter’s stool delivered to
Kootenay Health Services’ clinic in Nelson. The Plaintiffs son picked them up and delivered them to her studio.

·       
The Plaintiff told Mr. Anderson
that she was ‘"looking forward to returning to her previous
occupation".

·       
Mr. Anderson testified that all efforts to get her back into
pottery over the last year have been Plaintiff-driven.

·       
These steps were taken so the Plaintiff "may gradually
increase participation in this pre-mva vocational interest".

·       
With her inherent passion and skill, the Defendant submits that
the Plaintiff’s return to vocational
pottery will be accommodated with her new table-top wheel and adjustable
height potter’s stool in combination with appropriate future care.

iv.  Real Estate

·       
Both the Plaintiff and her sister, Robin Pettit, testified that
she presently follows the real estate market with an eye to purchasing
investment properties. Apparently the Plaintiff is on her computer, following
the Multiple Listings Service ("MLS") daily.

·       
The Plaintiff testified that, post-accident, she has discussed
her opportunities in real estate with her long-time friend, Mr. Burke
Jones, himself a successful Nelson-area realtor.

[133]     Moreover,
in terms of her abilities around the house – the Plaintiff is six-fold more
able that she perceives herself to be.

[134]     Based upon
the Plaintiff’s true residual ability now and for the rest of her life
expectancy, the Defendant submits that all
future income loss/loss of capacity calculations be reduced by 25% to reflect the
Plaintiff’s residual earning capacity.

[135]    
In terms of survival rate, it is regrettable but unavoidable to account
for the evidence that the Plaintiff is a
real suicide risk [testimony of Dr. Nader]. This has been documented by
the Plaintiff’s experts as follows:

·       
"’She is at high risk for recurrence of depression and,
given her past history of suicidality, even completed suicide. It should be
noted that she says she continues to harbour an undisclosed provisional suicide
plan." [Dr. Watt, Exhibit 5, tab 1, page 21, para. #92];

·       
”Ms. Campbell also endorsed daily suicidal ideation and a
current plan to take her life (which she did not want to disclose)." [Dr. Nader,
Exhibit 4, tab 3, page 6. para. #10];

·       
"When asked about suicidal ideation, Ms. Campbell
endorsed that she used to think about it all day, every day. Ms. Campbell
acknowledge that she has a plan to take her
life, but did not want to state what it was. She expressed that she is
currently thinking about suicide daily, but denied any current intent,
or past suicide attempts." [Dr. Nader, Exhibit 4, tab 3, page 28];

·       
"Ms. Campbell indicated suicidal ideation and that she
has a plan as she does not want to live in her state forever. She indicated
that she has discussed her suicide plan with her family." [G. Boniface,
Exhibit 5, tab 3, page 8, item #9];

·       
"I would like to kill myself [G. Boniface, Exhibit 5, tab 3,
page  12, Beck Depression Inventory];

[136]     Finally,
future Welfare or social assistance payments are also deductible from an award
for future loss of income/loss of capacity.

[137]     The
Defendant submits that the net present value award under this head of damage
should be $200,000.

[138]     The plaintiff is currently 42 years of age.
Assuming she lived and worked to 70 years of age, her general overall capital
earning capacity has been diminished. I would fix that loss at $50,000: Pallos
v. Insurance Corporation of British Columbia (1995) 100 BCLR (2d) 260
(B.C.C.A.).

[139]     Pre-accident the plaintiff’s sculpturing business
net income was:

1)    2003 – $20,278

2)    2004 – $26,661

3)    2005 – $24,812

4)    This averages $23,917 or approximately $24,000
per year.

[140]     I am
satisfied she would have also obtained the position of manager offered by Mr. Burke
Jones at Kootenay Storage at $3,000 per month or $36,000 per year.

[141]     Mr. Jones
testified that the plaintiff could also create and operate her pottery art
business as a sideline on the premises of Kootenay Storage. The total annual
income would then be ($24,000 + $36,000) $60,000 per year.

[142]     To age 70,
the plaintiffs income would be 19012/1000 x $60,000 = $1,140,720 + $50,000
(loss of general earning capacity) = $1,190,720.

[143]     This
amount should be reduced by 25 percent to reflect any future positive residual
income earning capacity and possible reduced life expectancy before age 70.
This amount is then $893,040.

[144]     Provincial
Government disability payments received by the plaintiff should also be
deducted. Present value of $900 per month or $10,800 per year (19012/1000 x
$10,800) = $205,329 less 25 percent reduced potential life expectancy =
$153,996.75.

[145]     Future
loss of income is therefore fixed at ($893,040 – $153,996.75) = $739,043.25.

Cost of Future Care

[146]     Ms. Chouinard
testified for the plaintiff that she commenced homemaker services on or about
November 2008, when the plaintiff first returned from hospital. She is still
working for the Plaintiff two hours per week as dictated by ICBC on a once per
week basis.

[147]     Ms. Chouinard
was initially providing the plaintiff with housecleaning services, laundry and
help with meal preparation. She confirmed the plaintiff refused to accept help
with her bathing although she needs someone in the house whenever she was
bathing because she is unsteady on her feet.

[148]     When the
plaintiff initially moved back to the Delbruk residence, there was a
significant amount of clean up to perform because the home was in the process
of renovation. Ms. Chouinard has been assisting the plaintiff with her
needs since April 2009. The services she provides now include cooking,
cleaning, shopping, laundry, some meal preparation and bathing.

[149]     Ms. Chounard
testified that she also does grocery shopping and running errands for the
plaintiff, performing tasks like going to the bank, buying dog food, and
groceries.

[150]     She
described the plaintiff as being slow and unsteady on her feet. She is unable
to lift anything and tires very easily. Ms. Chouinard gave evidence that
the plaintiff has difficulty with incontinence, both bowel and bladder. She
purchases numerous incontinence pads for the plaintiff’s bladder difficulties
and also provides the plaintiff with enemas for her bowel.

[151]     Ms. Chouinard
gave evidence that whenever speaking with the plaintiff she frequently has to
stop, slow down and think about the words whenever speaking. Ms. Chouinard
also telephones the plaintiff in advance of arriving to request she begin
preparing a grocery list so that by the time Ms. Chouinard arrives the
plaintiff has put her mind to some of the items that she needs from the store. Ms. Chouinard
frequently will get to the plaintiff home and find out that she has either
forgotten to do it or forgotten that she was coming.

[152]     Ms. Chouinard
has also noticed the plaintiff has trouble writing down the words that she is
attempting when preparing the list. Ms. Chouinard also described the
plaintiff as frequently having difficulty understanding or realizing what it is
that Ms. Chouinard is saying to her.

[153]     Ms. Chouinard
was asked whether or not the plaintiff assists in the preparation of meals and Ms. Chouinard
gave evidence that in the past the Plaintiff could help start the meal but
would get too tired or frustrated and then end up going and laying down.

[154]     Ms. Chouinard
also gave evidence that although Joel lives in the home off and on he doesn’t
help really at all. The only time she notices Joel assisting is if the
plaintiff asks him 2 or 3 times pleading for him to help. Ms. Chouinard
described Joel as being not very ambitious and whenever she is there he either
is in his room or watching TV or playing video games.

[155]     Under
cross-examination, Ms. Chouinard confirmed that the plaintiff has great
difficulty walking up her front stairs and has to hold the railing and walk one
step at a time.

[156]         
Ms. Aveighlee Campbell-Wyman gave evidence for the plaintiff
that she has been operating a cleaning business called Clean Sweep Cleaners
since April, 2010, and took the plaintiff on as a client in July 2011. She
initially commenced working for the plaintiff strictly as a cleaner but shortly
thereafter became more of a personal assistant and someone who runs errands for her. Her work schedule is 8 hours a
week, working Monday’s and Wednesday’s from 11:00 a.m. to 3:00 p.m. She
is paid $20.00 per hour.

[157]         
They have a set schedule that they work within which typically
starts in the morning with Ms. Campbell-Wyman running a bath for the
plaintiff, making her tea and then going into the kitchen where she does some
general cleaning, emptying the dishwasher and cleaning the fridge. She then
goes and cleans the bathroom tub, toilet, sink and dusts, vacuums and mops
throughout the rest of the house. She said her home is quite dirty at times
because she has 2 large dogs.

[158]         
Ms. Campbell-Wyman gave evidence she also sorts mail for the
plaintiff. Opens and responds to e-mail on her behalf and makes phone calls for
her. She has helped the plaintiff organize
a schedule with color-coded sticky notes to keep things organized.

[159]         
Ms. Campbell-Wyman gave
evidence the help she provides with cooking is mostly "prep work".
She will chop veggies or put hamburger patties together and into the fridge or
freezer etc. She will also help the plaintiff organize a grocery list and
schedule and remind her of her doctor’s appointments. She will occasionally
take the plaintiff to some doctor’s appointments.

[160]         
Ms. Campbell-Wyman gave evidence the plaintiff has trouble
paying bills and recalled on one occasion
where the plaintiff forgot that she had actually paid a bill over and over until
it had been paid 3 times.

[161]         
Ms. Campbell-Wyman gave evidence she helps the plaintiff pay
some bills online and some of the bills are
paid in person at the bank. She also helps the plaintiff with travel arrangements
and scheduling doctor’s appointments.

[162]         
Ms. Campbell-Wyman described the plaintiff as having
difficulty waiting on hold when making calls
to Shaw Cable or Rogers for example. Although the plaintiff has a computer she
needs reminders to check her e-mails and help drafting e-mails.

[163]     Ms. Campbell-Wyman
gave evidence that the plaintiff can do some work on her own in the kitchen but
it is very limited. She can boil an egg for instance but can’t toast the toast
or make the bacon. She simply peters out. She said the plaintiff would have
trouble making a well-rounded meal for herself
as she simply gets too tired.

[164]     Ms. Campbell-Wyman gave evidence that Joel
is a sweet and caring person but lacks motivation. The plaintiff will
have to ask him several times for him to do things like cut the lawn or shovel
the walk. Joel can make himself food but won’t clean up after himself and does not make
"meals". She was not sure exactly what the extent of Joel’s condition
was but did say that he had alopecia and anxiety issues.

[165]     Ms. Campbell-Wyman
described the plaintiff’s two dogs as large boxers. The plaintiff had to hire
the services of a professional dog walker in order to get them exercise. Sometimes
Ms. Campbell-Wyman will take them out for a run. She confirmed the plaintiff
is not able to walk the dogs herself and Ms. Campbell-Wyman expressed concern
that if the plaintiff ever attempted to go out alone, particularly in the
winter when it is icy.

[166]     Ms. Campbell-Wyman
gave evidence that when the plaintiff does venture out alone she always has a
walking aid, either 1 cane but sometimes 2. When she is maneuvering down the
front steps to her home she will take the steps one at a time with both hands
on the railing. Her home has front and rear entrances but only the rear is
wheelchair accessibile.

[167]     Ms. Campbell-Wyman
has noticed the plaintiff has very limited functional abilities. She describes her
as being very stiff and can’t bend over. She has seen the plaintiff bend over
to empty the dishwasher 90 degrees but then get stuck. She has observed the
plaintiff to frequently use heating pads to lie on her bed or couch.

[168]     Ms. Campbell-Wyman gave evidence that the
plaintiff is unable to do any cleaning of her home. Sometimes the
plaintiff will try to do her own dishes but gets too sore and has to stop. She
described the plaintiff’s conversation as being very slow. The words come out backwards
sometimes and she can’t deal with or comprehend questions that are too numerous or come too quickly. Even simple
questions are hard for her.

[169]     Ms. Campbell-Wyman
gave evidence that the plaintiff can’t delegate anything. She described the
plaintiff’s mood as usually in very poor spirits. She is usually very sad all the
time and alone. She is very short with people and has alienated herself.

[170]     Ms. Campbell-Wyman
gave evidence she is aware that the plaintiff attends physio and goes to the pool where she will sit in a hot tub
that makes her feel nice.

[171]         
The plaintiff anticipated the
Defence in closing will argue she has been noncompliant with treatment recommendations
and she will therefore not require many of the future care items that were
recommended.

[172]         
The court heard evidence from Dr. Nader who offered an
explanation as to why the plaintiff had difficulty complying with many of the
treatment recommendations made. Dr. Nader diagnosed the plaintiff with
Post Traumatic Stress disorder (PTSD), which stemmed not from the accident
itself but rather from the treatment the plaintiff received in hospital.

[173]         
The plaintiff’s mother, Deanna Reid, provided evidence that
corroborated and supported the basis for Dr. Nader’s conclusions. She gave
evidence that the plaintiff had extended stays
at three separate hospitals throughout her recovery in the months that followed
the accident. Ms. Reid made the trip to Nelson and recalls talking
to the hospital staff and nurses who reported her condition as getting worse
and worse.

[174]         
Ms. Reid gave evidence that despite this the nurses who
cared for her daughter were extremely neglectful and "out and out
cruel". She described one incident where the plaintiff was left lying in her own urine for hours and other instances
where the plaintiff would have to literally beg for pain control.

[175]         
Ms. Reid described another incident where after the
plaintiff received some help from a nurse she said "Oh, thank you
sweetie". The nurse turned and said to her very sternly "don’t
you ever call me sweetie."

[176]         
Ms. Reid described another incident where there were some
physiotherapists in the plaintiff’s room that were to provide her with help.
Instead they dropped her onto the bed, which was unbearably painful for her
given her condition. The plaintiff’s treatment was so bad that Ms. Reid found it necessary to make three separate
complaints about the treatment she was receiving but, as she said, "no one
would listen".

[177]         
According to Dr. Nader
the treatment the plaintiff received in hospital has resulted in her developing
an aversion to hospitals and difficulty accepting treatment from "health
professionals" in general. As he stated:

Ms. Campbell’s anxiety
around contact with medical professionals and nurses will likely continue to
interfere with her physical rehabilitation and treatment, as she is scheduled
to require further surgeries for her injuries. She is highly fearful of being
in hospital before and after the surgeries and how she will be treated by hospital staff. This may manifest in
overly negative predictions and perceptions of how she will be treated
in hospital and this could lead to future conflict with medical staff, further
interfering with her physical recovery.

[178]         
There was evidence from
several of the medical experts of the ease with which they were able to
establish rapport with the plaintiff and how that became progressively more
challenging as time went on. In nearly every case, establishing rapport with
the plaintiff was relatively easy but maintaining rapport was not.

[179]     The
plaintiff was able to establish rapport with nearly all the doctors who
assessed her, Dr. Horlick, Dr. Cameron, Dr. Watt, Dr. Wilkinson
and Dr. Nader. It was a common experience for the plaintiff’s stamina and
energy to run out within 1 to 2 hours, leading to a break-down in rapport and
in some cases an incompleteness of testing. Fortunately, in every case, the experts were able to collect,
gather and assess enough information from the plaintiff to enable them
to arrive at their stated conclusions.

[180]         
Plaintiff’s counsel submitted
that simply because the plaintiff may present health care professional with challenges
in providing her with treatment is no reason not to provide the treatment that
the experts in this case have deemed to be necessary.

[181]         
More specifically, Dr. Nader felt the barriers the plaintiff
is currently faced with can be overcome with appropriate treatment measures. He
felt the plaintiff should be treated and followed by a psychiatrist for
medication management before engaging in psychological therapy. He felt that
would allow her to become receptive to further therapies. He stated:

It is my opinion that Ms. Campbell
requires further treatment for her current psychological
and emotional difficulties. However, given her past experience with a
psychologist and her apparent lack of interest and motivation for participating
in active therapy for pain, mood or anxiety management, it is unlikely that
therapy will be beneficial for her at this time. As with most of her
relationships with health care professionals following the accident, her
therapeutic relationships with mental health providers have seemed strained at
best and she expressed limited benefit from therapy sessions in the past.
Therefore, before she engages in further psychological therapy, I recommend
that she be treated and followed by a psychiatrist for medication management to
attempt to address her emotional symptoms with anti-depressant and anti­anxiety
medication. Additionally, having a conclusion to her current litigation would
likely eliminate a major stressor (both financially and emotionally), which
could free up more emotional and psychological resources to allow her to
participate in psychological therapy.

[182]     Under
cross examination, Ms. Reid was asked about the history the plaintiff had
given to Dr. Nader, which appeared to
suggest the plaintiff had a rather difficult upbringing. Ms. Reid
denied several of the facts stated therein. For instance, she confirmed the plaintiff had attended four or five schools
before grade ten, not 10, as Dr. Nader had reported. Ms. Reid denied
that she had thrown the plaintiff out of the home when she was fifteen
years of age. However, Ms. Reid admitted that the plaintiff had been
sexually assaulted by a chiropractor at a young age and had declined to pursue
it. Ms. Reid also disagreed with defence counsel’s suggestion that prior
to her accident the plaintiff was
"demanding, stubborn, controlling and not always willing to listen
to medical advice." Ms. Reid also denied that the plaintiff’s father
was an alcoholic.

[183]         
As opined by both Dr. Rosemary Wilkinson and Dr. Rami
Nader, the treatment the plaintiff received
while initially hospitalized was in itself traumatizing, forever deepening her
post-traumatic complex psychological and emotional state.

[184]         
The plaintiff’s present condition is marked by chronic pain,
chronic incontinence of urine, severely depressed mood, and irritability. She
sleeps poorly. Her walking is limited as is the use of her left arm and has a
walking tolerance of perhaps 2-3 blocks with the use of a walker. Cognitive
functions are markedly reduced secondary to brain injury, severe pain, and
narcotic medication. She requires a care aide 2 to 3 times a week.

[185]    
With respect to permanency of her cognitive deficits, D.
Wilkinson opined:

I believe that she has a moderate
degree of permanent disability with respect to cognitive functions, attention,
memory slowness of processing and impaired
manual dexterity of the left hand. The latter interferes with all motor skills
and use of the computer. Cognitively, she is slower to think, learning will be difficult, and communication by writing
will be slower. Attention and memory
deficits will be expected to render her disabled from her previous occupation,
and any others. Ordinary tasks will be performed more slowly. From the neuropsychological perspective, chronic
pain and sleep disorder will be
expected to reduce stamina considerably.

[186]         
Dr. Wilkinson has predicted the plaintiff will have "great
difficulty forming new close lasting relationships" because of personality
changes attributable to brain trauma and the
numerous psychological adjustments stemming from her physical injuries and secondary complications.”

[187]         
The plaintiffs previously close relationship with her family
has all but ended. Joel has moved away from home and her mother, Deanna, refers
to June 17, 2008 as "the day I lost my daughter."

[188]    
The future care recommendations made by Dr. Horlick,
orthapaedic surgeon, are set out as follows:

She will also require permanent
assistance for activities of daily living such as cleaning, household chores
and procurement of provisions. Ongoing assistance with respect to physiotherapy,
access to a recreational facility where she can undertake appropriate range of
motion and strength doing exercises for her multiple musculoskeletal injuries
will also be required. Modifications to her house to facilitate level access
and avoidance of stair climbing would also
be a benefit.

[189]         
The plaintiff testified that
prior to the accident she was independent with home management tasks and
was responsible for 100% of indoor housekeeping tasks such as cleaning, meal
preparation and laundry.

[190]         
Since the accident, the plaintiff has difficulty with almost all
tasks. She can only manage very light
duties, such as wiping counters, light meal preparation, and occasional light shopping,
and she requires assistance with all other tasks.

[191]         
Ms. Campbell estimated that she currently participates in 4%
of her pre-injury home management activities and that she receives help for
everything else. She reported that ICBC
funds 1-2 hours per week of home support and that she self-funds an additional
8 hours per week of help, for a total of 9-10 hours/week.

[192]         
Giovanna Boniface prepared a report dated October 17, 2011
outlining the plaintiffs future cost of care items based on the recommendations
of the plaintiffs various assessing specialists and set out a list of future
care recommendations for the plaintiff.

[193]         
According to John Struthers, economist, the present value of the
future cost of care as presented by Ms. Boniface is calculated to be
$678,986.

[194]      The Defendant submitted that a critical piece of evidence in
this trial came from the opinion of Ms. Boniface. She is an expert
Occupational Therapist hired by Plaintiff’s counsel to assess the Plaintiff in
her own home.

[195]     Ms. Boniface
opined that the Plaintiff was 25% capable of managing her household affairs although
the Plaintiff insisted that she was only 4% capable.

[196]     Moreover, Ms. Boniface
testified in chief that, as the Plaintiff ages, she will continue to be 25%
capable of managing “on her own”.

[197]     Close
family described her pre-accident personality as demanding, stubborn,
controlling and not always willing to listen to medical advice. For whatever
reason, the Plaintiff consistently underestimates her own post-accident
ability. The Defendant submits that this same principle applies to “future loss
of capacity” as it does to “future care costs”.

[198]    
Some legal principles governing an award for future care costs are
summarized as follows:

There must be a medical justification for claims for cost of
future care: Milna v. Bartsch 1985 CanLII 179 (BC SC), (1985), 49 B.C.L.R.
(2d) 33 (S.C.) aff’d (1987), 49 B.C.L.R. (2d) (C.A.). The expense should not
be a squandering of money. In considering any particular item of future care,
the test is whether a reasonably minded person of ample means would incur the
expense: Brennan v. Singh, [1999] B.C.J. No. 520 (S.C.).
[emphasis added] [Fullerton (Guardian ad litem of) v. Delair et al.,
2005 BCSC 204 at para. 263, upheld on appeal: 2006 BCCA 339]

The weight to be given to an opinion on future care
will depend on the extent to which recommendations for things like
psychological counselling and physiotherapy are supported by the evidence of
experts within the relevant field of expertise: see, for example, Frers,
at para. 191. [emphasis added] [O’Connell v. Yung, 2010 BCSC 1764
at para. 98]

Future care costs are intended to compensate a plaintiff
for an amount that may reasonably be expected to be expended in putting him
or her in the position he or she would have been in absent the injury. Again,
the plaintiff’s original positions must be considered because they are not
entitled to be compensated for any damages they would have suffered anyway: see
Blackwater, para. 78.

In awarding future care costs,
there is a duty to be reasonable and an award must be moderate and fair to both
parties: see Andrews v. Grand and Toy Alberta Ltd., 1978 CanLII 1
(SCC), [1978] 2 SCR 229 at pp. 241-42.

In Krangle (Guardian ad litem of)
v. Brisco, 2002 SCC 9, the court stated at paras. 21-22:

Damages for cost of future care are
a matter of prediction. No one knows the future. Yet the rule that damages must
be assessed once and for all at the time of trial … requires courts to peer
into the future and fix the damages for future care as best they can. In doing
so, courts rely on the evidence as to what care is likely to be in the injured
person’s best interest. Then they calculate the present cost of providing that
care and may make an adjustment for the contingency that the future may differ
from what the evidence at trial indicates.

The resulting award may be said to
reflect the reasonable or normal expectations of what the injured person will
require.

  It is also important to prevent double
recovery where social assistance benefits may be received in the future. In
Krangle, the issue was whether the plaintiffs would incur future costs
to care for their disabled son once he became an adult. The trial judge
concluded that they would not, because the cost for his care in a group home
was covered by the province’s welfare scheme. He did, however, make an award of
$80,000 as a 5% contingency that the government would in the future change its
policy of providing group home care. The Supreme Court of Canada affirmed this
conclusion and agreed that the cost of care would be fully met by the social
security program in force in British Columbia.

Awards for cost of future care must be reasonable, both in
the sense of being medically required and in the sense of being costs that, on
the evidence, the plaintiff will be likely to incur [Loeppky v.
Insurance Corporation of British Columbia, 2012 BCSC 7 at para. 109]

A little common sense should
inform claims under this head [costs of future care], however much they may be
recommended by experts in the field. [Penner v. Insurance Corporation of
British Columbia, 2011 BCCA 135 at para.13]

[199]     The Plaintiff’s
future care cost claim is set out in to the reports of Ms. Giovanna Boniface
with present value calculations provided in the report of Mr. John Struthers.

[200]    
The Defendant summarizes the evidence on Ms. Boniface’s Schedule “B”, bearing
in mind the principles that the award must be (i) reasonable
in the sense of being medically required, (ii) reasonable in the sense of being
likely to be incurred, and (iii) moderate and fair to both parties:

A1.       Prescription Medication

For all prescription medications under Part A1, Ms. Boniface
testified that the dose, frequency and duration is “as prescribed by doctors to
life expectancy”. She admitted that it was beyond her expertise. However, there
is no evidence from any treating physicians to prove the recommended dose
frequency or duration.

For all prescription medications under Part A1, Ms. Boniface’s
footnote 1 indicates that the Plaintiff may be eligible for some medication
coverage through the B.C. Fair Pharmacare Plan. The Plaintiff does not know
whether or not she has applied for such assistance as of yet.

Re items #2 and 3, the Plaintiff told Ms. Boniface that
Fentanyl Patches no longer worked for her.

Re item #5, the Plaintiff told Ms. Boniface the she only used
Oxycodone on an “as needed” basis.

Dr. Nader recommended treatment by a psychiatrist for
medication management with anti-depressant and anti-anxiety medication, but the
Plaintiff told Ms. Boniface that “she has tried anti-depressants medication,
but that they do not work for her”. Even after reviewing Dr. Nader’s report,
Ms. Boniface did not recommend anti-depressant and anti-anxiety medications.
The Defendant submits that the Plaintiff will not avail herself or incur the
cost of anti-depressant or anti-anxiety medication. Post-accident, she already
tried a variety of anti-depressant and anti-anxiety medications without success

A2.       Non-Prescription Medication

For all non-prescription medications under Part A2, Ms.
Boniface testified that the dose, frequency and duration is “as prescribed by
doctors to life expectancy”. She admitted that it was beyond her expertise. However,
there is no evidence from any treating physicians to prove the recommended dose
frequency or duration.

For all non-prescription medications under Part A2, Ms.
Boniface’s footnote 2 indicates that the Plaintiff may be eligible for some
medication coverage through the B.C. Fair Pharmacare Plan. The Plaintiff does
not know whether or not she has applied for such assistance as of yet.

Re item #2, the Plaintiff told Ms. Boniface that she only
used Voltaren on an “as needed” basis.

Re item #4, the Plaintiff told Ms. Boniface that she only
used Sennosides on an “as needed” basis.

B.         Medical Care

Included in MSP – no cost to the Plaintiff.

C.        Therapy Services

Re item #1, the Defendant submits that the Plaintiff will not
avail herself or incur the cost of psychological assessment and treatment.

Dr. Nader described that, post-accident, the Plaintiff “was
resistant to psychological pain management approaches and she discontinued
treatment with her psychologist in 2010 following a breakdown of rapport”
[Exhibit 4, tab 3, page 8, para. 9].

Mr. Cory Anderson, treating Occupational Therapist, testified
that the Plaintiff requested psychological counselling with Dr. Beresford in
October of 2011 [Exhibit 5, tab 1C, page 3], but when he arranged the
counselling with funding from ICBC, the Plaintiff declined. According to Mr.
Anderson’s testimony, “It fell through on her end”.

When examined for discovery on November 16, 2011, the
Plaintiff testified:

Q. 1111 Do
you go to a psychologist, counsellor, or a physiatrist?

A.         No.

Q.1112 Why is that?

A.          It
takes all the energy that I have in a day just to do what I’m managing to do. There’s
no more mental or physical energy to add more appointments or situations. I’m
maxed.

The Defendant further submits that any need for psychological
management for PTSD is not recoverable on the legal bases that it is too remote
and was not foreseeable to a reasonable person. Dr. Nader opined that the
Plaintiff’s PTSD symptoms “do not appear to relate to the accident itself”. Rather,
her PTSD arises from “her experiences with health care professionals since the
accident”. The Plaintiff’s mother, Deanna Reid, vividly described the
deplorable treatment which her daughter received in hospital. Ms. Reid agreed
that such treatment was well beyond what any reasonable person might expect.

Alternatively and specific to item #1, Ms. Boniface testified
that it was outside her expertise to opine whether a psychologist or clinical
counsellor was preferred. The cost of a clinical counsellor is in the range of
$75 to $100 per hour rather than $160 to $170 per hour.

Re item #7 – occupational therapy treatment sessions – this
is primarily “to provide education…” The Plaintiff is not unintelligent; the
Defendant submits that she will learn her lessons within a few years and does
not require this expense annually for the remainder of her life expectancy.

Further on item #7, Ms. Boniface priced out 2-hour sessions
at $250 per session. But Kootenay Health Services’ rate for occupational
therapy is $90 per hour.

Re items #8 through 10 – a residential pain program – Ms.
Boniface writes that the option of a comprehensive pain program “should be
explored with (the Plaintiff’s) current medical/rehabilitation team.”  She is
specific to note that “this cost should only be included if the medical team
agrees with this treatment option.”  However, there is no evidence in this
trial from the Plaintiff’s treating medical or rehabilitation team in support
of a comprehensive pain program. The question was never put to the treating
Occupational Therapist, Mr. Anderson. Presumably, Mr. Anderson does not endorse
a residential pain program; Ms. Boniface received input from him but made no
changes to her original recommendations.

Alternatively and specific to item #10, Ms. Boniface did not
price out a hotel for a 37-night reduced rate.

D.        Support Services

Re items #3 through 7 – home management services – Mr.
Struthers calculates a net present value totaling $372,179:  nearly ½ of the
total future care costs claimed.

Both the cost per hour and number of hours of home management
services are disputed by the Defendant.

As for cost, Ms. Boniface priced out only one caregiver. She
was looking for someone who was “bonded, licensed and insured”. She agreed that
those characteristics attracted a premium price. Ms. Linda Chouinard of Karen’s
Home Help Service charges $18.00 per hour. Ms. Campbell-Wyman charges $20.00
per hour. The Defendant submits that the hourly rate should be in the range of
$18.00 to $20.00 per hour.

As for the number of hours, Ms. Boniface relied upon Stats
Canada averages for specified age groupings. The Defendant submits that these
are not applicable to the Plaintiff. First, the Plaintiff has a “small” house
with only two bedrooms and one bathroom on a single level. Second, Stats Canada
is based upon individuals who work 5:15 hours per day on top of their household
work. The Plaintiff portrayed to Ms. Boniface that she was working full time as
a self-employed clay artist plus part time in a motorcycle shop and part time
as a motorcycle tour guide. Ms. Boniface agreed that if the Plaintiff was
working more than 5:15 hours per day, then that would leave less time for her
household work. Also, the Plaintiff is portrayed as a woman who, at the time of
the accident, was “just getting to a stage in her life where her son was old
enough to care for himself and this was allowing her more freedom to reach her
true potential.”  Ms. Boniface agreed that “more freedom to reach her true
potential” likely equated with less time spent doing housework.

The Defendant submits that, at most, 7 hours per week of home
management services should be awarded.  That is the amount recommended by the
treating Occupational Therapist, Mr. Anderson for a 12-week treatment plan in
November of 2011.

For items #3 through 7, the Defendant’s grand total equals
$120,563.66.

Re item #8 – dog walking – Ms. Campbell-Wyman testified that
the Plaintiff has not had a dog walker for a number of months, so she does some
of it herself.  The Plaintiff testified that she drives both of her dogs to an
off-leash park where she walks them around a trail circuit.

E.         Equipment

For all of the equipment under item E, Ms. Boniface was not
aware that the Plaintiff was in receipt of social assistance.  She testified
that individuals on social assistance/welfare can apply to the Ministry for
financial assistance with the acquisition of equipment.

Re item #1, Dr. Horlick recommended this on the premise that
the Plaintiff did not have a knee brace.  The evidence is that she already has
one.

Re item #7 – bathlift – the Plaintiff testified that she (a)
gets in and out of her bathtub independently, (b) bathes in her house when no
one else is there, and (c) has had no incidents, other than breaking a grab
bar.

Re item #15 – a 4-wheeled scooter – if the Plaintiff still
has dogs at age 55, then she will be able to walk them independently with a
four wheeled scooter.

F.         Architectural Considerations

Both Mitch Hart and the Plaintiff’s son Joel are construction
workers.   They can maintain her ramp.

The Defendant’s total future care
costs following upon Ms. Boniface’s Schedule equals $256,780.71.

[201]     After
consideration of both parties submissions on Ms. Boniface’s schedule, I think
the plaintiff’s proposed amount is extravagant. A more nuanced and appropriate
amount to reflect her future requirements would be achieved by 25% reduction of
$678,986. Accordingly I fix cost of future care at $509,239.50.

Conclusion

[202]     The
plaintiff is entitled to the following award of damages:

1)    Non pecuniary
damage $290,00 0 (previously settled)

2)    Special damages:
(previously settled)

To January 6, 2012 $14,733

After January 6, 2012 $682.78

3)    Replacement
value of motorcycle $9,000 (previously settled)

4)    Past income loss
$33,687.69

5)    In Trust claim
for Mitchell Hart $15,000

6)    Future income
loss $739,044.25

7)    Cost of future
care $509,239.50

Total $1,611,389.20

[203]     If
applicable, the plaintiff is entitled to costs and court order interest on
applicable items of damage.

[204]    
Leave is granted for further submissions pertaining to management fees,
tax gross up and structured settlement.

“Wong J.”

______________________________

The
Honourable Mr. Justice Wong