IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120330

Docket: M092959

Registry:
Vancouver

Between:

Hailie Simmavong

Plaintiff

And

William Robert Haddock

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

[1]            
This trial concerns the plaintiff’s claim for damages arising from a
motor vehicle accident, which occurred on June 24, 2007.

[2]            
Liability for the accident is denied as there is an action yet to be
commenced relating to the plaintiff’s daughter.  The parties have agreed to
litigate the claim for the plaintiff’s damages only at this time.

THE ACCIDENT

[3]            
The accident occurred as the plaintiff was travelling northbound on the
Cedar Valley Connector at or near the Lougheed Highway in Mission.  Her vehicle
and that driven by the defendant struck one another in a head-on collision. 
There was significant damage to both vehicles.

[4]            
At the time of the motor vehicle accident the plaintiff was pregnant. 
Her daughter Emily was born the next day, some seven weeks premature.

THE PLAINTIFF
PRIOR TO THE ACCIDENT

[5]            
The plaintiff is 33 years old, married and has a four and one-half year
old daughter.

[6]            
The plaintiff grew up in British Columbia, graduating from high school
in 1996.  In 2005 she and her husband moved to Saskatchewan in order for her
husband to pursue a job opportunity.  In the spring of 2007, several months
prior to the accident, they returned to British Columbia.

[7]            
The plaintiff had no known health issues before the accident.  She and her
husband enjoyed a number of activities together including playing basketball,
skiing, snowboarding, camping, hiking, going to the gym and golfing.  She was described
by her husband and others as being a self reliant “go and do it” kind of person. 
She was also a gardener and enjoyed crafts.

[8]            
She had been involved in an earlier motor vehicle accident in 2000, but
was symptom free at the time of the current accident.

[9]            
The plaintiff became pregnant in late 2006.  She was seven months
pregnant when the accident occurred.  She applied for and received employment
insurance benefits when her daughter was born.

[10]        
Both she and Mr. Simmavong testified they relied on two incomes to
“make ends meet” and to plan for the future.

THE PLAINTIFF’S
WORK HISTORY PRIOR TO THE ACCIDENT

[11]        
Following her graduation from high school, the plaintiff worked in a
number of jobs which included waitressing in a Chinese restaurant and working as
a barista in a coffee shop.  She then attended a business college for a year
and obtained a certificate in travel and tourism, in 1999.  She was unable to
find work in that field and continued working at various restaurants, at times
holding multiple jobs.  She also worked for her aunt for a period before moving
to Saskatchewan.

[12]        
The plaintiff’s aunt, Ms. Monica Dowker, testified that before the
accident the plaintiff was a “bubbly easy going, outgoing person”, she was “very
active” and was “hard working and bright.”

[13]        
Ms. Dowker commenced building a personal care business providing
raw materials to soap makers in or about 2001.  She employed the plaintiff
between 2001 and 2005 to assist her in invoicing, receiving, packaging and
shipping various oils, salts and powders.  She paid the plaintiff $10 per hour
until the plaintiff moved to Saskatchewan.

[14]        
In Saskatchewan the plaintiff worked as a server in a Chinese restaurant
before leaving to work for the Marriott hotels.  Initially she worked in their
reservations department at a call centre.  Afterwards she worked as a trainer
for new employees.  She enjoyed her latter job and would likely have stayed employed
with Marriot had she not moved back to British Columbia.

[15]        
When she did return to British Columbia, the plaintiff had hoped to find
work with Marriott.  She also hoped to work in the travel and tourism business.

THE PLAINTIFF
FOLLOWING THE ACCIDENT

[16]        
As stated, the accident involved a significant head-on collision between
the vehicle Ms. Simmavong was driving and the defendant’s vehicle.

[17]        
The plaintiff was taken to the Mission Hospital where primary attention
was focused on saving her child.  The plaintiff suffered a placenta separation
as a result of the accident.  Her daughter Emily was born the next day, weighing
some 4 pounds 2 ounces, after a caesarean section.

[18]        
The days immediately following the accident were very worrying for the
plaintiff and her husband as shortly after her birth Emily was found to have
blood in her bowels.  Twelve days later she was transferred to BC Children’s
Hospital where she remained for five weeks.

[19]        
The plaintiff suffered multiple bruises and abrasions, as well as injuries
to both knees, her right ankle and her left elbow.  Most of these injuries are now
resolved, although the scar on her knee remains painful if she kneels on it.

[20]        
The plaintiff alleges more lasting discomfort in her right pinky finger,
ongoing neck and significant back pain which interferes with her ability to
perform her duties at work and with her daily living activities.  She also
alleges ongoing anxiety and depressed mood resulting from her ongoing back
pain.

[21]        
Her right pinky finger was broken and then dislocated at the proximal
interphalangeal joint and is now permanently bent at the middle joint of the
finger, making it difficult to use.  She cannot extend it beyond 45 degrees.  She
is right-handed and occasionally drops or spills drinks in her work as a
waitress as a result.  She is embarrassed by the deformity and often holds her
hand in a fist to hide her finger.

[22]        
Her main complaints, however, are with her neck and persisting back
pain.  She testified she could not hold Emily for long periods as too much
sitting put pressure on her lower back.  Her evidence is that her back pain bothers
her every day both at work and at home.  It has not improved since the
accident.  She does not sleep well at night because of pain and when she wakes
up she does not feel rested.  She finds it draining on her energy level to have
persistent pain.  Sitting, lifting and bending aggravate her pain.  She
testified she is very careful with what she lifts.  She finds it difficult to lift
her daughter to give her a hug or to comfort her.

[23]        
Ms. Simmavong testified she takes up to six Tylenol 3 per day, as
well as Advil, to dull the pain.  However, she is careful how much she takes
when she is at home as she has her daughter to care for and must remain alert. 
She testified she has little energy.  Her mother assists her (as does her
husband) in housekeeping tasks, but she says she does not like to ask for
help.  She is used to being self sufficient.  Her mother comes to the house for
two to three hours every week to assist in housekeeping.

[24]        
The plaintiff testified she feels her mood has changed as a result of
the ongoing pain she is experiencing.  She is not as optimistic or outgoing as
she was and does not entertain as she did before the accident.  She testified
she is moody and often does not have the patience she had with her husband
prior to the accident.  She is now less tolerant of her husband’s attitude
toward household tasks.  Much of this arises from the fact he is not able to
perform a number of tasks to the standard she expects, which she acknowledged
are high.  Both she and her husband testified their sexual relationship had
significantly declined since the accident.

[25]        
The plaintiff testified she has restricted her recreational activities
since the accident as a result of her lower back pain, but does walk, when the
weather permits, and she swims.  She testified she has followed her physician’s
advice and exercises three times a week for thirty minutes.  She testified she
had tried to lose weight as recommended by her physicians, but had not noticed
any change in her symptoms notwithstanding having lost 10 pounds in the last
six months.

THE IMPACT OF
THE PLAINTIFF’S INJURIES ON HER WORK

[26]        
The plaintiff testified that although her husband had a supervisory
position at a packing plant, she needs to work to supplement the family income. 
This has always been the family’s plan.  Before her employment insurance
benefits ran out in about May 2008, she started to search for employment.  She
searched for work in the travel and tourism industry without success.  She
had experience as a waitress and ultimately found work as a server at Sneakers,
a pub-style restaurant, in August 2008.

[27]        
She initially started working eight-hour shifts four days per week (she
was looking for full-time work but only four days was available), but found she
was experiencing pain in her back.  She tried this for two months but because
of recurring lower back pain, with the agreement of her employer, reduced her
work week to three shifts a week.  She has worked three shifts per week since.

[28]        
As one would expect, her job entails being on her feet and carrying
heavy trays of drinks and food, with considerable lifting and bending.  When
she commenced employment she was expected to work one day a week as a
bartender.  She had to give this work up as she was not able to perform the
bending and lifting required.  Her work as a waitress brings on her back pain,
which then becomes progressively worse during her shift.  She testified she is
able to manage by resting and by taking Tylenol 3 and Advil.  She works
Mondays, Thursdays and Fridays.  By Friday she says she feels exhausted from dealing
with the pain and, at the same time, trying to deal with customers in a
professional manner.  She testified there were times at work when she would
break down in tears.

[29]        
The plaintiff’s evidence about her difficulties at work was supported by
two fellow employees, Ms. Ellis and Ms. Johnstone.  Both had worked
full time for a number of years at Sneakers and were employed in supervisory
positions.  Each testified to the nature of work which was required of a server
and to their observations of the plaintiff’s difficulty performing her work. 
Each observed Ms. Simmavong appeared to be in pain and had seen her “teary
eyed” during portions of her shift.  They testified that bar tending was an
expected function of the plaintiff’s position, but her employer was
accommodating Ms. Simmavong by relieving her of those duties.  Ms. Johnstone
testified she thought the plaintiff was functioning at perhaps 60% of full
capacity.  Both colleagues testified that while the employer was prepared to
accommodate the plaintiff, they would not hire an employee with her physical
limitations.

[30]        
Both Ms. Ellis and Ms. Johnstone testified that servers made
approximately $100 per shift in tips and $9.50 per hour, amounting to an annual
income for full-time work of $50,000 to $55,000.  Each said the plaintiff was a
conscientious, professional employee who related well to customers.

[31]        
Ms. Dowker testified the plaintiff worked for her again in January
2011 to assist her to do invoicing when Ms. Dowker was moving her shop. 
She testified the plaintiff could not do the job quickly enough, that she was
in pain and could not sit for long or perform the work according to Ms. Dowker’s
requirements.  Ms. Dowker told the plaintiff she would have to replace
her.  She did so, paying the replacement person $14 per hour.

MEDICAL EVIDENCE

Dr. Todorov

[32]        
Dr. Todorov has been the plaintiff’s attending physician since a
few months following the accident.  Initially, she had been seen by another
family physician who had prescribed physiotherapy.  Dr. Todorov first saw
the plaintiff for accident related complaints on October 15, 2007.  At that
time her main complaint was of pain in the right upper trapesius muscle.  He
sent her for massage therapy.  She saw him again on January 18, 2008,
complaining of a sudden onset of lower back pain.  She told him she had had
lower back pain after the accident, but it had improved with physiotherapy.  Dr. Todorov
continued to follow the plaintiff up to the present.  His last office attendance
on her was July 20, 2011.  I pause to note here Ms. Simmavong had seen
Dr. Beytell immediately following the accident for lower back pain.

[33]        
In his medical legal report of July 21, 2011, Dr. Todorov noted the
motor vehicle accident had “caused significant soft tissue injuries and changes
in her lower spine, which have been the cause of ongoing pains and discomfort.” 
He stated “Probably the accident has caused significant deterioration in
pre-existing degenerative changes (seen on the MRI)”.  He noted the plaintiff
had experienced lower back problems as a result of a motor vehicle accident in
2000, but had recovered fully and had not experienced lower back pains until
the accident of 2007.  He concluded his report with the following observation:

Mrs. Simmavong will probably
continue to experience frequent lower backaches and discomfort with periods of
exacerbation.  Prognosis is guarded at this time.

[34]        
Dr. Todorov testified the plaintiff’s back pain had first been
reported during a visit to him in January 2008.  At that time, she was experiencing
pain radiating down her legs.  She reported increased back pain in September
2008 after returning to work.  He prescribed Tylenol 3 and a muscle relaxant.

[35]        
He said her complaints of back pain were consistent during her visits to
him thereafter, mostly brought on by carrying her daughter or by her work.  Dr. Todorov
considered referring her to an orthopaedic surgeon and an anesthetist for
cortisone treatments (which the plaintiff initially declined, but later
accepted although such treatment had not occurred as of the date of trial due
to a scheduling problem).  He ultimately referred her to a neurologist, Dr. Tanha,
who sent her for an MRI.  The results of the MRI are set out in the report:

MRI from June 17, 2011 shows
degenerative disc disease at L4-5 level with broad-based disc bulge and subtle
suspected annular tear.  L4 nerve root is contacted as it exists.  Subtle
compression of L5 nerve roots.  L5-S1 disc bulge, contacting right S1 nerve
root without compressing it.  Degenerative changes of the facet joints at
multiple levels.  L2-3 disc bulge contacting right L3 and L2 nerve roots. 
Probable paravertebral muscle atrophy.

[36]        
When Dr. Todorov last saw the plaintiff in July 2011 she was still
having ongoing back pain.  He continued his recommendation of exercise and
weight loss, but testified he was of the opinion while exercise and weight loss
may help her improve her symptoms, she would not return to her pre-accident
state.

[37]        
In cross-examination, he agreed Ms. Simmavong had not reported back
pain to him during the period he saw her until January 15, 2008, when she
had had a spontaneous onset of lower back pain while walking down a corridor.

Dr. McKenzie

[38]        
Dr. McKenzie, an orthopaedic surgeon, saw the plaintiff at the
request of Ms. Simmavong’s counsel.  Dr. McKenzie prepared a medical
report dated December 4, 2010, and testified at trial.

[39]        
He reviewed Ms. Simmavong’s medical history and saw her on December
1, 2010.  It was Dr. McKenzie’s opinion that:

She may indeed have some
discogenic pain but the other pain generators include the myofascial
structures, the facet joints and the right SI joint.  In my opinion the
causation is her motor vehicle accident.  In my opinion the prognosis for
resolution of this is poor.  I base this on the fact that it has been basically
3 ½ years from the time of the accident and she has shown no trend or tendency
towards improvement since the accident.

[40]        
Dr. McKenzie was also of the opinion the plaintiff’s neck pain was
the result of the accident and that the prognosis for resolution was “poor”. 
He noted that her neck pain had improved significantly since the accident.

[41]        
With reference to her back pain, he stated:

In my opinion the problems this
lady is complaining of are consistent with a motor vehicle accident of this
nature.  In my opinion the difficulties that she is expressing with her work,
household and recreational activities are also consistent with her injuries,
particularly her lower back. It appears by her history that the major problems
she is having with regard to pain and resultant disability is the lower back
issue.

[42]        
Dr. McKenzie recommended managing her injuries with “ongoing core
exercises and an attempt to lose weight back to her pre-pregnancy weight.”

[43]        
In cross-examination, Dr. McKenzie agreed there were no
neurological findings to support the plaintiff’s complaints of pain.  He said
most patients plateau in their symptoms within two to two and one half years. 
He agreed that he had recommended core exercises and weight loss, but noted the
plaintiff should only exercise within her pain level and that the best form of
weight loss was diet.

Dr. Vaisler

[44]        
Dr. Vaisler, an orthopaedic and hand surgeon, saw the plaintiff at
the request of her counsel on August 8, 2011.  Dr. Vaisler prepared a
report dated August 18, 2011 in which he noted:

… She will most probably notice
improvement in the severity and frequency of her low back symptoms with the
above noted treatment recommendations, [as per the Hunt report to be discussed
later] but in view of her continuing to complain of low back pain for over four
years after the motor vehicle accident, it is more likely than not that she is
going to continue to complain of intermittent annoying and disabling low back
pain with the above noted activities for the foreseeable future.

If she experiences acute exacerbations of
low back pain, she may require repeat short sessions of physiotherapy, massage
therapy or chiropractic treatments.

…

Disability

I reviewed the conclusions of Bruce Hunt in
his Functional Capacity Evaluation Report dated July 7, 2011 and am in
agreement with his conclusions and recommendations with respect to treatment
and work. She will most probably have a permanent disability with respect to
competitive full time employment involving prolonged standing, prolonged
walking, sustained or repetitive bending, along with repetitive moderate
lifting and heavy lifting and heavy labour. She was managing in her part time
job as a server at the time of my seeing her, but will continue to require help
with work activities involving any heavy lifting and moderate lifting above
shoulder level for the foreseeable future.

She is most
probably going to require help with the heavier aspects of housework and
gardening for the foreseeable future due to her low back symptoms. She will
most probably experience an exacerbation of low back pain with repetitive
bending and lifting if she has more children in the future. Her tolerance to
snowboarding, hiking and dancing will most probably improve with the above
noted treatment recommendations but she will most probably be left with some
permanent limitation on account of her low back symptoms.

[45]        
He further noted that with the treatment recommendations made by Mr. Hunt
she “may be able to increase her work load as a server to full time, but this
is too early to say for certain.”

[46]        
In cross-examination (by deposition evidence read in at trial), Dr. Vaisler
testified the range of motion in the plaintiff’s finger could be partially
corrected by a surgical procedure with a recovery period of possibly up to
eight months to regain full strength in her hand.  He testified when he
examined her cervical and thoracic spine, she had a full pain-free range of
motion.  He noted that the bulging of the disk at L 4/5 “was more than what I
would expect based on age”; however, he could not “definitely say that’s
associated with her symptoms”.  He confirmed the plaintiff’s weight was 185
pounds which he agreed would put her on the “borderline between overweight and
obese.”

[47]        
He did recommend at his deposition that:

… she should be avoiding heavy lifting,
heavy labour, repetitive bending, sustained bending, prolonged walking,
prolonged standing, ideally a job with alternating periods of sitting and
standing that is light to medium capacity.  That’s [what] I would recommend. 
And if she gets a job that involves more sitting then she would be best to have
a contoured chair, an ergonomic assessment of her workplace to make sure she is
in the right position with respect to the desk and computer and writing
surfaces, and to be able to get up and move about for short periods if she
experiences discomfort.

Dr. Devlin

[48]        
Dr. Devlin, a psychiatrist, saw the plaintiff on August 11, 2011,
at the request of her counsel.  He prepared a medical-legal report dated August
22, 2011, which was filed at trial.  He noted the plaintiff had experienced “considerable
emotional trauma, particularly regarding the birth of her daughter Emily, and
the initial, extremely serious health problems the child endured after the
emergency C-section.” He also noted that Ms. Simmavong remained concerned
about how Emily might function at school because she was lagging in
developmental milestones.  Ms. Simmavong remained “considerably anxious”
when driving and has occasional flashbacks about the accident.

Physiotherapy/Massage Therapy

[49]        
The plaintiff attended physiotherapy on the advice of Dr. Beytell, the
family physician she saw before seeing Dr. Todorov.  She was assessed at
Glenn Mountain Orthopaedic and Sports Physiotherapy on August 22, 2007, with
symptoms of pain in her neck, low back and soreness in both knees and right
ankle.  She had a number of physiotherapy treatments, initially attending three
times per week.  She also took massage therapy, which she later abandoned
because her insurer would not cover the cost of treatment.

[50]        
In 2010 Ms. Simmavong returned to Glenn Mountain for a further
session of physiotherapy.  The therapist’s consultation report, dated July 7,
2010, noted the plaintiff had not continued with the core strengthening
exercises recommended in 2008.  In 2010 Ms. Simmavong attended for a further
nine treatments and was discharged July 7, 2010, with another program of home
exercise.  She was asked to return once those exercises became easy for her to
do.  The plaintiff has not returned.  Her evidence at trial was that she is
still performing core exercising three times a week at home.

Functional Capacity
Evaluation

[51]        
Mr. Bruce Hunt of Ultima Health Assessments Corp. performed a
Physical Capacity and Work Tolerance Assessment of the plaintiff on July 4,
2011.  She was assessed performing various activities in a number of body
positions and postures.  I will set out Mr. Hunt’s findings and
recommendations in some detail.  Mr. Hunt set out his clinical impressions
in his report dated July 7, 2011, which included, at paras. 17 to 36:

17.       Ms. Simmavong
currently has sufficient body positioning, strength and stamina to meet the
entry level physical demands of a part time Food & Beverage Server (NOC #
6453).  She does not currently have sufficient body position stamina to manage
the full time work demands of a Food & Beverage Server due to chronic
central low back pain.  She requires intermittent sit, stand and walk
positional breaks and periodic time to lay down during an 8 hour work shift and
will require some accommodation on a recurrent basis when she returns to full
time work hours.

…

19.       Ms. Simmavong
is having moderate difficulty managing her chronic back pain symptoms.  She
became tearful during functional testing and required time to lie down and rest
several times during the assessment.  She was identified to have an elevated
perceived pain response, scoring 26% and 36% on the neck and spine disability
indices.  Pain impacted on her ability to participate fully in the assessment. 
She took pain medication and recurrent sitting, standing and walking breaks and
stretched her back various times for pain control.

20.       Ms. Simmavong
noted feeling fatigued and exhausted, described as “drained” after 5 hours of
testing and following repeat walk testing.  She attributed her symptoms of
fatigue to persistent and recurrent back pain during test activity.

21.       Ms. Simmavong
rated her low back pain at 2/10, at completion of testing.  She had taken two
Tylenol 3 at 1pm, forty five minutes prior to the end of the assessment.  She
reported repetitive bending and waist to shoulder lifting and carrying to
produce the greatest low back pain, described as “burning” in the central low
back with symptoms radiating laterally across the hip crests.

25.       She
will likely experience progressive degenerative change due to the existing
pathology and exposure to recurrent biomechanical loading of the lower spine. 
Her chronic lower back pain will impact on her ability to manage a second
pregnancy and occupations involving bending, lifting, carrying and awkward
unsupported body positioning.  She is now susceptible to further degenerative
lumbar spine changes.  She will likely experience increased back pain with
disease progression.  She should be referred to a neurosurgeon or orthopaedic
surgeon for prognosis of degenerative spine condition.

26.       Ms. Simmavong’s
low and central mid back pain symptoms continue to impact on her ability to
engage in home and domestic activities and restrict her to sedentary to entry
level light occupations. She continues to break up routine domestic activities
of cleaning due to ongoing pain. Her back pain is presently impacting on her
ability to engage with her four year old daughter and restricts her from
lifting and carrying the child for any length of time or playing in low level
positions or on the floor. She has not returned to previous sport and
recreational pursuits such as [snowboarding], running [and/or] water skiing.
She would likely have considerable difficulty managing the more physically
demanding aspects of sport, recreation and leisure pursuits due to chronic low
back pain.

…

36.       Ms. Simmavong
is currently not suited to labour intensive occupations such as light house
cleaning, [warehouse work/material handling], cashiering, assembly, cooking,
data entry [and/or] filing clerk. She meets the entry level occupational
demands for receptionist and secretary, provided the work does not involve
prolonged static sitting, forward writing intensive posturing and computer data
entry.

[52]        
Mr. Hunt made a number of recommendations including:  a structured
exercise program such as “pilates” based physiotherapy and one-to-one training
to address core musculature; swimming lengths on a regular basis; the use of an
SI joint and/or lumbar spine support belt when working; and a referral to a
specialist for consideration of a localized injection and pain management
counselling.

[53]        
Mr. Hunt considered the plaintiff’s employment opportunities in the
labour market to be limited due to her chronic low back pain, which impacted on
her sitting, standing and walking tolerance.  He considered her pain symptoms
presented “moderate barriers for employment requiring light to entry level
medium (9.5kg to 12kg) material handling and sustained outward unsupported arm
reach.”

[54]        
As to her present position as a server, he commented:

38.       Ms. Simmavong
is presently meeting the part time work demands of a Food and Beverage Server
as the jobs physical demands are within her current positional and strength
tolerance. She is presently not suited to full time restaurant server work due
to the prolonged standing and walking demands. As she is not currently limited
to sedentary and entry level light occupations, she should be referred for
vocational testing to identify her aptitudes and interests and employment
opportunities within this functional level. She would likely benefit from a job
coach or career counsellor, [particularly] if her back pain increases and
impacts her ability to work as a [pub/restaurant] server.

[55]        
In cross-examination, Mr. Hunt agreed he did not go to the
plaintiff’s workplace, nor did he speak to her supervisors.  He agreed she was
competitive and on many of the tests performed above the standard of measurement
he was using in terms of her time measurement to perform the test.  However, he
noted such performance did not necessarily measure tolerance and that the
plaintiff took medications around noon when she experienced pain.

POSITION OF THE PARTIES

The Plaintiff

[56]        
Counsel for the plaintiff argues the plaintiff suffers from ongoing
chronic pain to her lower back which is likely permanent, has suffered neck,
knee and ankle pain, and suffers from significant depression.  Counsel says the
plaintiff will suffer a significant loss of future earnings as she will not be
able to tolerate full-time work in the future.

[57]        
Counsel says the plaintiff is entitled to non-pecuniary damages in the amount
of $90,000; past wage loss of $43,000 (based on tips being $100 per hour) from
September 1, 2008, to the date of trial, representing the difference in
earnings between full time work, which the plaintiff says would have commenced
September 1, 2008, had her daughter been born after a full-term pregnancy,
and the plaintiff’s actual earnings; loss of future earning capacity in the
amount of $300,000; special damages and cost of future care, including compensation
for lost housekeeping capacity.  I will assess each of these heads of damages
separately.

The Defendant

[58]        
The defendant acknowledges that while the plaintiff suffered a number of
physical injuries as a result of the accident, the medical evidence indicates
her injuries had improved significantly before the end of 2007.  There are no
neurological findings that warrant further treatment or surgical intervention
and the plaintiff has sought minimal therapeutic treatment for her low back
complaints.

[59]        
Mr. Walsh pointed out that the plaintiff’s visits to Dr. Todorov
during which she had specifically complained about lower back pain were sporadic
after January 2008, occurring in September 2008 then February 2009, July 2009
and then March 2010.  However, Dr. Todorov testified the plaintiff’s complaints
of lower back pain on each of the occasions she complained were consistent.

[60]        
The defendant says the plaintiff’s subjective pain rating relating to
her lower back has improved since the accident and that it continues to show a
tendency to further improvement.

[61]        
The defendant acknowledges the plaintiff sustained a fracture of her
right little finger, a laceration of her right knee, multiple contusions and
soft tissue injuries to her neck, knees, right ankle and lower back.  The
defendant says the plaintiff’s injuries improved significantly before the end
of 2007, including her lower back complaints, although the defendant
acknowledges she is left with some low back complaints.  The defendant says the
plaintiff’s complaints with respect to her impaired capacity to perform
household tasks and work full time are not supported by the evidence; the
plaintiff has shown “an extremely high level of capacity and functionality”
since September 2008 by working part time while at the same time being her
daughter’s primary caregiver and being largely responsible for the family’s
household tasks.

[62]        
The defendant argues the plaintiff and her husband were not able to
afford the cost of day care and, accordingly, it was not likely the plaintiff
would have worked other than part time, regardless of the accident.  Further,
she would have had to be at home during her husband’s work hours.  The
defendant pointed to what counsel described as the plaintiff’s “extraordinary”
work schedule, arriving home at 2:00 a.m. following her night shift and then
arising at 8:00 or 9:00 a.m. with her daughter.  The plaintiff’s husband left
for work at 5:00 a.m. and worked to 3:30 p.m., arriving home just before the
plaintiff left for work.  Counsel suggested it was not sensible or realistic
for the court to conclude the plaintiff would have worked full time on such a
schedule.  At best, she would have worked part time and the position she had at
Sneakers was an optimal one, permitting her to make a good salary while working
part time.

[63]        
The defendant submits the quantum of damages for non-pecuniary damages
should be in the range of $50,000.  He denies the plaintiff has suffered any
loss of income as a result of the accident and should be awarded a modest
amount for future income loss.  The defendant also took issue with the
plaintiff’s claims for cost of future care, loss of housekeeping and special
damages.  I will consider these arguments under the heads of damage discussed
below.

[64]        
The defendant also argued the plaintiff had failed to mitigate her losses
by not following her physicians’ recommendations to exercise and lose weight.

ASSESSMENT OF DAMAGES

Non-pecuniary damages

[65]        
Madam Justice Ker summed up the purpose of non-pecuniary damages in Trites
v. Penner, 2010 BCSC 882 as follows:

[188]   Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
 The compensation awarded should be fair and reasonable to both parties ...

[189]   For the purposes
of assessing non-pecuniary damages, fairness is measured against awards made in
comparable cases.  Such cases, though helpful, serve only as a rough
guide.  Each case depends on its own unique facts ...

[Citations omitted.]

[66]        
The principles underlying an award of non-pecuniary damages were
discussed by Madam Justice Gray in Dikey v. Samieian, 2008 BCSC 604:

[139]    Non-pecuniary damages are those that have not and
will not require an actual out-lay of money.  The purpose of such an award
is to compensate Mr. Dikey for such things as pain, suffering, disability,
inconvenience, disfigurement, and loss of enjoyment of life.  The award is
to compensate him for losses suffered up to the date of trial and that he will
suffer in the future.

[140]    As stated by the Supreme Court of Canada in Lindal
v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637:

Thus the amount of an award for non-pecuniary
damage should not depend alone upon the seriousness of the injury but upon its
ability to ameliorate the condition of the victim considering his or her
particular situation.  It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative.  An appreciation of the individual’s loss is the key and
the "need for solace will not necessarily correlate with the seriousness
of the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages
in Canada (1981), at p. 373).  In dealing with an award of
this nature it will be impossible to develop a "tariff".  An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).

[141]    Prior to the accident, Mr. Dikey was a social
and athletic young man with the ambition to work in the hotel industry and the
courage to come to Canada to pursue his education.  He was independent and
showed initiative.

[142]    Mr. Dikey’s life
has changed profoundly as a consequence of the accident.  He is unlikely
to work, and has lost the self-esteem, enjoyment and income that is available
from work. …

[67]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages, at para. 46:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes: 

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff: Giang v. Clayton, … 2005 BCCA 54).

[68]        
The assessment of non-pecuniary damages is necessarily “influenced by
the individual plaintiff’s personal experiences in dealing with his or her
injuries and their consequences, as well as the plaintiff’s ability to
articulate that experience”: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[69]        
The correct approach to assessing injuries which depend on subjective
reports of pain was discussed in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) by McEachern C.J.  In referring to an earlier decision, he said at
399:

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

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

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

See
also Edmondson v. Payer, 2012 BCCA 114.

[70]        
The plaintiff relies on Dikey, Stapley and Lindal v.
Lindal, [1981] 2 S.C.R. 629, for a discussion of the general principles
underlying an award of non-pecuniary damages and on: Beaudry v. Kishigweb,
2010 BCSC 915 (chronic pain in neck, back and shoulders, headaches, anxiety and
dizziness: non-pecuniary damages – $85,000); Kosugi v. Krueger et al.,
2007 BCSC 278 (disc herniation, chronic low back pain, foot weakness and
depression: non-pecuniary damages – $110,000); Pett v. Pett, 2008 BCSC
602 (concussion and chronic low back pain: non-pecuniary damages – $85,000); Predinchuk
v. Spencer, 2009 BCSC 1396 (chronic pain, soft tissue injury to neck, back
and shoulders and headaches: non-pecuniary damages – $80,000); Prince Wright
v. Copeman, 2005 BCSC 1306 (severe chronic neck pain, headaches and depression:
non-pecuniary damages – $100,000); Smusz v. Wolfe Chevrolet Ltd., 2010
BCSC 82 (disc herniation in neck, bulging lumbar disc, chronic pain in neck and
lower back, post-traumatic stress disorder and depression: non-pecuniary
damages – $100,000); Murphy v. Jagerhofer, 2009 BCSC 335 (chronic pain
in neck and back, sleeplessness and hearing loss: non-pecuniary damages –
$100,000); Notenbomer v. Andjelic, 2008 BCSC 509 (aggravated
pre-existing disc herniation and second disc herniation, both operated on, and
low back pain and depression; plaintiff working four days a week at time of
trial: non-pecuniary damages – $100,000) Schnare v. Roberts, 2009 BCSC
397 (various soft tissue injuries with significant SI joint issues causing
chronic back pain: non-pecuniary damages – $85,000) Pham-Fraser v. Smith,
2010 BCSC 322 (TMJ problem, aggravation of carpel tunnel, ongoing lower back pain
with radiation into left leg and loss of some bladder control: non-pecuniary
damages – $95,000).

[71]        
The defendant relies on: Day v. Nicolau, 2011 BCSC 490 (lifeguard
suffered soft tissue injuries to back, neck and shoulders.  Diagnosis of
chronic pain, but that with further active exercise program and proper back
care could have further improvement; plaintiff unable to return to life
guarding: non-pecuniary damages – $50,000); Thauli v. Gill, 2009
BCSC 1929 (plaintiff waitress suffered multiple soft tissue injuries to neck,
shoulders, back and knees, leaving her with chronic pain.  Pain was largely
improved within two years of accident, but left her with residual symptoms;
court felt with continued treatment she would continue to improve. Plaintiff
never returned to position as a waitress:  non-pecuniary damages – $50,000); Chalmers
v. Russell, 2010 BCSC 1662 (pregnant plaintiff school teacher with
injuries to neck, back, chest and shoulders; injuries exacerbated by second
accident.  Court accepted plaintiff’s evidence that ongoing symptoms and
injuries caused her to curtail former active lifestyle: non pecuniary damages –
$50,000); Runghen v. Elkhalil, 2009 BCSC 467 (29-year-old plaintiff four
and a half months pregnant suffered cramping and bleeding, soft tissue injuries
in her neck and lower back and headaches.  Court accepted medical evidence that
if plaintiff undertook an active exercise program her lumbar condition would
substantially improve: non-pecuniary damages – $40,000).

Discussion: 
Non-pecuniary Damages

[72]        
The evidence establishes that prior to the accident Ms. Simmavong was
a vigorous and energetic person.  She had a “go and do it” attitude and enjoyed
participating in a wide variety of activities, including camping, hiking,
skiing and going to the gym.  She had a strong and stoic personality.  It was
her plan to have a family and at the same time to work to improve the family’s
fortune.  Regrettably, her life changed dramatically as a result of the
accident of June 24, 2007.

[73]        
She has been significantly impacted by the accident.  Instead of being
able to enjoy a full-term pregnancy of her daughter, she was faced with the
worry, at least initially, of whether her daughter would survive, followed by a
forced premature delivery and now concerns over her daughter’s health and
development.

[74]        
Ms. Simmavong sustained multiple bruises and abrasions, a broken
and disfiguring finger injury, an injury to her right ankle, both knees, left
elbow, neck pain and persisting lower back pain.  Her ankle, elbow and
abrasions have resolved, but she remains with a tender right knee when she
kneels on it, as well as the occasional recurring pain in her neck and shoulder. 
She also has constant chronic back pain, which bothers her daily and is
particularly troublesome for her at work.  In addition, she suffers from
anxiety and depressed mood which resulted from the trauma of the accident and
her ongoing pain.  Her relationship with her husband has been negatively
affected as she becomes easily agitated at home.  Their sexual activity has
suffered as a result of her ongoing back pain and her depressed mood.

[75]        
The defendant suggested in argument that the plaintiff’s back pain had
improved significantly since the accident and that it continues to show a
tendency toward improvement.  In support of this argument, Mr. Walsh
referred to the evidence of Dr. McKenzie and to the testing done by Mr. Hunt. 
Dr. Mackenzie had noted her pain level at 9/10 in the acute stages of her
injury; 6/10 in late 2010; and 4/10 in the summer of 2011.  While the
plaintiff’s pain level undoubtedly fluctuates with her activity level,
particularly at work, the plaintiff is left with substantial and disabling pain
in her lower back.  Having said that, several of the plaintiff’s physicians
were of the view her back pain would improve if she exercised to strengthen her
core muscles and lost weight.

[76]        
The evidence of the plaintiff, her husband Mr. Simmavong, Ms. Ellis;
Ms. Johnstone and Ms. Dowker supports the fact the plaintiff is
having ongoing significant back pain.  She functions working part time as a
waitress, but with difficulty.  If anything, my view of the evidence is that
the plaintiff’s pain level has, at this time, reached a plateau; it is not
improving.  I draw this conclusion from the opinions of the various physicians
who have seen her.  Dr. Todorov said she would “probably continue to
experience frequent lower backaches.”  Dr. McKenzie said “In my opinion
the progress for resolution of this is poor.”  Dr. Vaiser opined “(I)t is
more likely than not she is going to complain of intermittent, annoying and
disabling low back pain with the above noted activities for the foreseeable
future.”

[77]        
I accept Ms. Simmavong gave her evidence in an honest and
forthright manner.

[78]        
The defendant argues the plaintiff has failed to follow her physician’s
recommendations to exercise and lose weight and, therefore, she has failed to
mitigate her losses.  I am of the view there is some merit in this argument and
have taken it into account in my assessment of non-pecuniary loss.  Had
the plaintiff kept up with the set of core exercises recommended to her following
her first set of sessions and had she undertaken a diet or other weight loss
program she may well have improved her tolerance at work.  Those
recommendations by her physicians and the physiotherapists she has seen have
been consistent throughout her course of treatment.

[79]        
On the other hand, the evidence is that the plaintiff has been
performing some exercises at home following the advice of her physiotherapist. 
She also walks regularly, a recommendation made by Dr. McKenzie.  The
plaintiff also testified she has recently lost 10 pounds.  Furthermore, it
should be noted that not only does the plaintiff work, her husband works an
opposing shift.  She has a young child to attend to and a household to
maintain.

[80]        
The defendant argued the plaintiff had twice not taken a cortisone
injection recommended by Dr. Todorov.  Dr. Todorov explained there
was an administrative error which caused her to miss the appointment to have
this assessment done.

[81]        
I have reviewed the cases cited by each counsel.  Each case, of course,
is dependent on the particular facts.  I have found the cases useful to give me
a general guide of the range of damages appropriate in this case.  I assess
non-pecuniary damages at $75,000.

Lost Wages

[82]        
The plaintiff claims lost wages from September 1, 2008, (the date she
expected to return to work following a full-term birth of her daughter) to the
date of trial.  The amount claimed is $43,000.

[83]        
The plaintiff based her claim for both past and future lost income on a report
dated August 12, 2011, prepared by Mr. Benning, an economist, who was
called for cross-examination at trial.

[84]        
For the purposes of his calculations, Mr. Benning assumed that had the
plaintiff worked full time as a server at Sneakers she would have earned $9.50
per hour and $75 per shift in tips.

[85]        
The defendant says it is most unlikely, given the plaintiff’s prior work
history of low paying jobs and part-time work, as well as with the birth of her
young daughter, that the plaintiff would have worked full time commencing in
September 2008.  The defendant also refers to the “extraordinary” stress and strain
put on the plaintiff and her husband by her part-time work schedule, to which I
have referred earlier, and the fact both the plaintiff and her husband have
acknowledged the cost of day care for them would have been prohibitive.

[86]        
I find on the evidence the plaintiff has established a claim for wages
lost to the date of trial.  The issue to be determined is the quantification of
such loss.

[87]        
I am satisfied that absent the accident, the plaintiff would have
returned to full-time employment.  She had been engaged in full time employment
with the Marriott prior to returning to British Columbia.  There was no
challenge to her evidence, or that of her husband, that the couple’s financial
position required her to work full time.  When employment insurance benefits
expired in May 2008, Ms. Simmavong commenced looking for full-time
employment.  She was looking for full-time employment when she became employed
at Sneakers.  She started at Sneakers working four shifts per week only because
full-time employment was not available.  Both Ms. Johnstone and
Ms. Ellis testified full-time work was available, although the evidence
was unclear when such work would have become reasonable for Ms. Simmavong
subsequent to September 2008, had she been able to perform a full five-day per
week shift.  It was only as a result of her recurring back pain she felt it
necessary to reduce her shifts to three shifts per week.

[88]        
It may be true, as suggested by defence counsel, that she and her
husband have an “extraordinary” schedule.  That is a sacrifice Ms. Simmavong
and her husband chose to make in order to meet their financial commitments.  It
is a schedule that will become less rigorous on Ms. Simmavong as her
daughter approaches her school years.  While their work schedules may be
“extraordinary” to some, there are many who make such sacrifices to improve
their financial positions for the future.

[89]        
Mr. Walsh took issue with Mr. Benning’s assumption the
plaintiff worked only three shifts per week based on calculations of her annual
income since she commenced working at Sneakers.  I accept the evidence provided
by the plaintiff and her co-workers that the plaintiff was working three shifts
per week.  Her wages varied as she was sometimes paid overtime if she worked
longer hours on a shift.  As well, her paycheques included holiday pay and
uniform cleaning.

[90]        
Ms. Simmavong’s earnings from employment while employed at Sneakers
have been:

[91]        
These amounts include an allowance for laundry expense, holiday pay and
some overtime.

[92]        
The evidence of the amount of tips earned varied.  The plaintiff
testified her tips averaged between $50 and $100 per shift, but in
cross-examination acknowledged they could be as low as $40.  The plaintiff’s
husband thought they were between $60 and $80 per shift.  Ms. Ellis and Ms. Johnstone
testified servers earned approximately $100 per shift although neither knew
what amount the plaintiff accurately earned in tips.

[93]        
In my view, an amount of $70 per shift fairly represents the evidence of
the average tips received by the plaintiff and is an amount which represents
her loss of income from tips.  Taking into account Mr. Benning’s assessment
of past wage loss at approximately $42,000, as well the vagueness of the
evidence as to when a full-time position may have been available to the
plaintiff, and my finding that the plaintiff averaged $70 per shift in tips, I
set her loss of wages to the date of trial at $38,000.

[94]        
The fact the plaintiff did not declare her tips as income does not
prevent recovery of her loss of income: Iannone v. Hoogenraad (1992),
66 B.C.L.R. (2d) 106 (C.A.); Bain v. Nanji et al., 2000 BCSC
103.

Loss of Future Income

Discussion
of Law

[95]        
A claim for loss of future earning capacity raises two key questions:

(1)      has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so,

(2)      what
compensation should be awarded for the resulting financial harm that will
accrue over time?

[96]        
The assessment of loss must be based on the evidence and is a matter of
judgment.  It is not an application of a purely mathematical calculation.  The
appropriate means of assessment will vary from case to case: Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.); Pett v. Pett,
2009 BCCA 232; Rosvold v. Dunlop, 2001 BCCA 1.

[97]        
The essential task of the court is to compare the “likely future of the
plaintiff if the accident had not happened and the plaintiff’s likely future
after the accident has happened”: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at para. 32.  I also
note that “insofar as is possible, the plaintiff should be put in the position
he or she would have been in if not for the injuries caused by the defendant’s
negligence”: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185.

[98]        
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 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 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. …

[99]        
The test is set out in Perren v. Lalari, 2010 BCCA 140 at para. 32:

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

[100]     There are
two possible approaches to assessment of loss of future earning capacity:  the
“earnings approach” discussed in Steenblok v. Funk (1990), 46 B.C.L.R.
(2d) 133 (C.A.); and the “capital asset approach” discussed in Brown.  As
noted in the above quote from Perren, both approaches are correct and
will be more or less appropriate depending on whether the loss in question can
be quantified in a measureable way:  at para. 32.

[101]     The
earnings approach and the capital asset approach were described in Gilbert
v. Bottle, 2011 BCSC 1389, by Madam Justice Dickson, at para. 233:

In Perren v. Lalari, 2010 BCCA 140,
Garson J.A. identified the two approaches to assessment of loss of future
earning capacity commonly adopted by courts in British Columbia.  One is
the “earnings approach” described in Pallos; the other is the “capital
asset approach” described in Brown.  The earnings approach involves
a form of math-oriented methodology such as i) postulating a minimum annual
income loss for the plaintiff’s remaining years of work, multiplying the annual
projected loss by the number of remaining years and calculating a present value
or ii) awarding the plaintiff’s entire annual income for a year or two. 
The capital asset approach involves considering factors such as i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) is less marketable or attractive as a potential
employee; iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and iv) is less valuable to herself as a
person capable of earning income in a competitive labour market.

Discussion
of the plaintiff’s loss of future income

[102]     The
plaintiff’s monetary claim is based in part on the evidence of Mr. Benning
who assumed the plaintiff would have worked full time, five days a week as a
server, until she reached the age of 65.  Mr. Benning assumed that as a
result of the motor vehicle accident she would continue in part-time employment
working three shifts per week and assumed she would continue to earn $9.50 per
hour and $75 per shift in tips.  Based on these assumptions, Mr. Benning
calculated her future wage loss at slightly in excess of $200,000.

[103]     Mr. Stanley
argues this figure is conservative and seeks an award of $300,000 future wage
loss.  He bases his argument on the following:

1.       Ms. Simmavong
may have found more lucrative work.  He noted that her interest was in the tourist
and travel industry and that while employed at the Marriott she had been
earning $11 per hour;

2.       Mr. Benning’s
calculations did not take into account the possibility Ms. Simmavong might
not be able to work three shifts in the future or that she might lose or be
unable to perform her job as a result of her injuries in the future;

3.       Mr. Bennings’
assumptions did not account for the contingency that should Ms. Simmavong
lose her position as a server, she would be limited to “sedentary to entry
level light positions and will also have problems with a desk job” as noted in Mr. Hunt’s
evidence.  In argument, counsel notes that “the Court must query the extent to
which this situation [working three shifts a week] is sustainable for the
Plaintiff”;

4.       but for
the accident, there might have been an increase in the plaintiff’s real
earnings;

5.       the
evidence establishes the plaintiff would have performed better than the average
British Columbia female in the labour market; and

6.       the
plaintiff may lose three to four months earnings if she has an operation on her
finger.

[104]     The
defendant says it is unlikely the plaintiff would have worked more than the
hours she is presently working even had the accident not occurred.  As stated
earlier, I do not accept this argument.  The plaintiff started working at
Sneakers four shifts per week, although she had intended to work full time.  No
full-time positions were available at that time but did, subsequently, become
available.  The only reason she cut back to three shifts was because she could
not tolerate working four shifts with her back pain.

[105]     The
defendant also says that in the absence of “any serious rehabilitation program”
in the past three and one-half years the plaintiff has demonstrated “an
extremely high level of capacity and functionality.”  The defendant’s argument
ignores the fact the plaintiff has attended for some physiotherapy as
recommended by her attending physician and physiotherapist and is doing the
exercises recommended by her physiotherapist.  I accept she probably could have
done more in this area.  I do not accept the defendant’s argument the plaintiff
has demonstrated a high level of capacity and functionality.  In my view, such
an argument is inconsistent with the evidence of the plaintiff and her husband and,
more importantly, with the observations of her co-workers, aunt and the
opinions of her attending physicians as to her present and future limitations.

[106]     The
accident has had and will continue to have a significant effect on the
plaintiff’s earning capacity going into the future.

[107]     In
assessing her loss in this area I have based my award of damages on a number of
conclusions I have drawn from the evidence.

[108]     First, Ms. Simmavong’s
motivation for working is to provide financial security for her family.  She
appears to me to be a highly motivated person.  Her resolve is shown by her
perseverance at work notwithstanding the obvious discomfort she is
experiencing.

[109]     Next, as
much as she may have had an interest in the travel and tourism industry, her
qualifications in that field are limited and dated.  She has also maximized her
income working in her present position.  She is likely earning more waitressing
at Sneakers three shifts per week than she would earn working full time
elsewhere.  I conclude that unless she is able to do so because of her back
pain, she will likely continue to work three shifts per week in her present
position for a number of years.  I do not believe she will seek out other work
in the near or medium term.

[110]     In
addition to providing her with optimal earnings for part-time work, the shifts
the plaintiff presently works fit well with those worked by Mr. Simmavong. 
It is not likely she could or would change those arrangements, given the age of
her young daughter.

[111]     The
physicians and others who have assessed Ms. Simmavong have recommended
various programs to mitigate against worsening of the plaintiff’s lower back
pain and which may even assist her to tolerate a move toward more full-time
work as a server.  As stated, Dr. Todorov has recommended a program of
exercise and weight loss.  Dr. McKenzie recommends exercise within her
pain level and weight loss through dieting.  Dr. Vaisler agrees with Mr. Hunt’s
recommendations, as I have set out earlier in this decision.

[112]     I have
made provision for the cost of such programs in this decision.  There is reason
to believe, based on those opinions, and assuming Ms. Simmavong follows
the recommendations of Mr. Hunt, her pain will be alleviated to some
degree and she will be able to continue working in her part-time position as a
waitress for some number of years, if not, as stated, move toward more full-time
work.

[113]     It is also
likely the plaintiff’s family circumstances will change as her daughter attends
full-time kindergarten and then school, thereby reducing her childcare
obligations and the stress on her at home.

[114]     The
family’s financial circumstances may also improve as time progresses, making it
less necessary for her to engage in heavy work or full-time work.  I conclude,
however, had she not been involved in the accident it is likely Ms. Simmavong
would have engaged in some type of work until she was 60 or 65 years of age,
and that given the treatment recommendations she will continue to be involved
in the work force in some manner until she reaches that age.

[115]     I have
considered Mr. Stanley’s arguments that Mr. Benning’s assessment of Ms. Simmavong’s
loss of future earning capacity is “conservative and understates her loss”.  I
have also considered Mr. Stanley’s submissions that Mr. Benning did
not take into account the fact Ms. Simmavong may lose her job or be unable
to work three days a week in the future, that she is not physically suited for
work as a server, that she may be “consumed” by her symptoms and that she may
have to take time off to have surgery on her finger.

[116]     I do not
accept it is likely Ms. Simmavong would have been able to find more
lucrative work in the future.  In my view, she is optimally positioned for
income and flexibility of her shifts in her present employment, with the
ability to align her work with that of her husband.

[117]     However, I
do agree that while Ms. Simmavong is currently 33 years old, it is
reasonable to assume that as she progresses in age, even if for a period she is
able to increase her work load as a server to full time, it will be more
difficult for her over the longer term to perform the heavy duties required in
her present position due to her existing pathology and her exposure to
repetitive bio-mechanical loading of the lower spine (see Mr. Hunt’s
report).  She will at some stage in the future likely have to look for other
work.

[118]     I do not
accept Mr. Stanley’s suggestion that the plaintiff will be consumed with
her injuries.

[119]     Mr. Walsh
suggested Ms. Simmavong would be out of the work force for a period and
not earning an income should she have another child.  Ms. Simmavong was
not cross-examined on this issue and, given her ongoing back pain, I consider
the possibility she will have another child to be remote.  There was simply no
evidence from either Ms. Simmavong or her husband they were planning to
have another child.

[120]     In my view,
the plaintiff has established a real and substantial possibility she will lose
income in the future as a result of injuries she suffered in the accident.  Given
the uncertainties present in this case, the most appropriate method of
assessing such loss is the capital asset approach set out in Brown. In
this case, the four factors to be addressed must, on my view of the evidence,
be answered in the affirmative.  She has been rendered less capable overall
from earning income from all types of employment; she is less marketable as an
employee to prospective employers; she has lost the opportunity to take
advantage of all job opportunities which would have been open to her had the
accident not occurred; and she is less valuable to herself as a person capable
of earning income in a competitive labour market: see Brown, at para. 8. 
At the same time, she is able to coordinate her shifts with those of her
husband and maximize her income for the number of hours she does work.  The plaintiff
is, for the present and immediate future, in an optimal employment position.

[121]     Although
the income approach is not one I am using, it is useful to note that Mr. Benning
assumed the plaintiff would have earned roughly $42,000 per year as a server
based on working five days a week, earning $9.50 per hour and earning $75 per
shift in tips.  Mr. Benning applied a 30% “negative contingency” for
economic factors and a 6% negative contingency for reduced life expectancy and
disability factors.

[122]      Ms. Johnstone
and Ms. Ellis each earned in the vicinity of $50,000 a year working full
time, but each was paid a greater hourly rate and a management bonus.  The
plaintiff earned approximately $22,550 per year including tips, which I have
determined to be $70 per shift.

[123]     Balancing
all the factors, including the medical opinions that the plaintiff’s prognosis
regarding her lower back pain is poor or “guarded”, with Dr. Vaisler’s
opinion that if the plaintiff embarks on core strengthening program she may, in
the future, be able to return to some full-time light to medium heavy-duty work,
I assess the plaintiff’s loss of future income at $150,000.

Cost of Future Care

[124]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition in so far
as that is possible.  When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care.  The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000
BCSC 345; Spehar et al. v. Beazley et al., 2002 BCSC 1104.

[125]     In
his text The Law of Damages, loose-leaf ed. (Toronto: Canada Law Book,
updated November 2011, release 20), Professor Waddams states, at 3-63:

. . . the tenor of Dickson J.’s judgment in
Andrews v Grand & Toy makes it clear that the court will lean in favour
of the plaintiff in judging the reasonableness of his claim.  The court
made it plain that the restraint imposed on damages for non-pecuniary losses
was an added reason for insuring the adequacy of pecuniary compensation.

[126]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence.  For an award of future care: (1) there must be a medical justification; and (2) the claims must
be reasonable: Milina, at 84.  Furthermore, future care costs
must be likely to be incurred by the plaintiff.  The award of damages is thus a
matter of prediction as to what will happen in future.  If a plaintiff has not
used a particular item or service in the past it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006 BCSC
1315 at para. 74.

[127]    
Contingencies must also be considered when assessing cost of future
care.  In Gilbert, the court discussed adjusting for contingencies at para. 253:

The extent, if any, to which a
future care costs award should be adjusted for contingencies depends on the
specific care needs of the plaintiff.  In some cases negative
contingencies are offset by positive contingencies and, therefore, a
contingency adjustment is not required:  see Spehar (Guardian ad litem
of).  In other cases, however, the award is reduced based on the
prospect of improvement in the plaintiff’s condition or increased based on the
prospect that additional care will be required:  see Morrison
(Committee of).  Each case falls to be determined on its particular
facts.

[128]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[129]     Ms. Scullion,
an occupational therapist, prepared a cost of future care report following an
in-home assessment of the plaintiff on August 15, 2011.  The premise of the
report was based on the plaintiff being able to sustain her part-time position
as a server, as well as being a mother, wife and homemaker.  She performed a
physical assessment of the plaintiff, reviewed the medical reports and Mr. Hunt’s
report and prepared a list of recommendations for the plaintiff’s future care
and the costs attached to those recommendations.  I will discuss each of her
recommendations in turn.

(a) Psychological
Counselling

[130]     Ms. Scullion
considered it to be “critical” Ms. Simmavong be provided with
psychological counselling services because of what she described as the “complexity
of her presentation.”  Such services were not specifically included in any
recommended course of treatment by any of the physicians who saw her, including
her family physician or Dr. Devlin, the psychiatrist who saw her August
11, 2011.  A reading of Dr. Devlin’s report, however, provides a
foundation for providing for such counselling.  Dr. Devlin had “no doubt”
the motor vehicle accident “has had a significant effect on Ms. Simmavong’s
recent and ongoing health history”:  the “diminished … joy” of Emily’s birth;
the baby’s subsequent serious health problems; the strain from concerns about
how Emily will function at school; the considerable anxiety when driving and the
flashbacks; and occasional bad dreams about the accident.

[131]     Ms. Scullion
recommends 25 sessions at a cost of $175 per hour for a total cost of $4,375.

(b) Vocational Assessment/Counselling

[132]     I do not
consider a vocational assessment or vocational counselling as recommended by Ms
Scullion to be appropriate given my conclusion Ms. Simmavong is optimally employed
in her present position.

(c) Occupational Therapy
Assessment

[133]     Such
services would facilitate Ms. Simmavong’s functional abilities and would
likely assist her to manage her pain better in her work as a server.  Ms. Scallion
estimates an initial assessment cost of $270 and the cost of four treatment
sessions to be $360, for a total of $630.

(d) Physical Therapy/Supervised
Exercise Program

[134]     Ms. Scallion
recommends a physical therapy assessment on a periodic basis over the plaintiff’s
lifetime as well as a one-to-one supervised exercise program for a period given
her limitations.  Given the recommendation of the physicians that exercise
programs and core strengthening may well prolong the plaintiff’s ability to
work in her current capacity, if not increase that capacity, I accept Ms. Scallion’s
recommendation.  Using her average costs, I award $4,567.50 representing seven
assessments and six sessions for each of the seven assessments.

[135]     I am
satisfied it is not also not necessary to make provision for a supervised
exercise program as recommended by Ms. Scullion in addition to the above
program.

(e) Massage Therapy

[136]     Ms. Scullion
recommends the plaintiff be provided with 10 massage therapy sessions at a cost
of $700.  Given the plaintiff did find such sessions helpful but discontinued
them when her insurer stopped covering the cost, I award this amount.

(f) Housekeeping Costs

[137]     Ms. Scallion
recommends Ms. Simmavong be provided with housekeeping services as she is
unable to meet the physical demands associated with the completion of
homemaking tasks.  She had assessed the plaintiff’s need at one to two hours
per week at an average cost of $98.25 per week.

[138]     In support
of their respective arguments under this heading of cost of future care, both
counsel rely on Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178 (C.A.),
but for different propositions.  The plaintiff says Kroeker stands for
the proposition a claim for housekeeping services may be advanced even though
the services have been replaced gratuitously from within the plaintiff’s
family.

[139]     The
defendant says the case stands for the proposition others with whom the
plaintiff shares accommodation are expected to make a contribution to maintenance
of their joint household.  In this case, the defendant says a combination of
the plaintiff’s high expectations for housekeeping along with a requirement her
husband contribute more effort to housekeeping should negate any award for
housekeeping costs.

[140]     After a
review of Kroeker, I agree with the plaintiff’s interpretation of the
decision.

[141]     The
plaintiff and her husband live in a two-bedroom condominium.  The plaintiff
testified, and I accept her evidence, that her mother attends her residence
once a week for two to three hours to perform housekeeping tasks.  I am also
satisfied her husband assists as he is able.  The plaintiff’s husband testified
he did about 25% of the housework before the accident and was now doing about
one-third of it.  I also find the plaintiff is particular about housework.

[142]     I accept
the plaintiff’s injuries are such she finds it difficult to perform such tasks,
particularly after working the three shifts per week she currently works.  The
measure of damage, of course, must take into account what the plaintiff’s
circumstances would have been had she not been injured in the accident.

[143]     In this
case, the assessment is not straight forward.  Both the plaintiff and her
husband have testified their financial position makes it necessary for them
both to work.  They cannot afford daycare or a nanny.  Accordingly, they have
had to organize their lives around their respective work schedules.  This has
resulted in the extraordinarily long days for the plaintiff as, upon returning
home early in the morning hours after conclusion of her shift she must, on at
least three mornings of the week, arise early to look after Emily before her
husband leaves for his work.  While the plaintiff’s tenacity must be admired, it
is little wonder she is exhausted.  These factors would have existed notwithstanding
the accident.  It will be recalled the plaintiff would have been working full
time.

[144]     In
my view, it is likely the plaintiff’s mother would have assisted the plaintiff
with housekeeping chores regardless of the accident.  Nonetheless, I am also
satisfied there are tasks the plaintiff cannot perform as a result of her
injuries and that some of the assistance her mother provides is intended to
compensate for those tasks.  The plaintiff claims the cost of two hours per
week for housekeeping at $25 per hour for 52 weeks or $2,600 per year.  The
plaintiff claims $11,000 for housekeeping as special damages from the date of
the accident to date of trial and $57,000 for housekeeping as part of its claim
for cost of future care.

[145]     Taking
into account the above findings and discussion, I award $5,000, which will be
added in below to the calculation under the head of special damages, for past
loss of housekeeping capacity.  I also award $25,000 for the cost of future
care for housekeeping expenses which amount includes the cost of any periodic
heavy cleaning.

(g) Handyman
services

[146]     I make no allowance under this head as there is no justification in
the evidence to make such an award.  Mr. Simmavong is able to perform
whatever handyman chores there may be in the couple’s two-bedroom condominium.

(h) Pain
Medications

[147]     The plaintiff takes four to six Tylenol 3 per day, as well as extra-strength
Advil to control her back pain.  Ms. Scullion has costed these medications
at $1,029.61 annually or $24,095.  I allow this amount for medications

(i) Equipment

[148]     I consider Ms. Scullion’s recommendations for a bath tub wall
bar, hand held shower, Obus Forme Back support and an ergonomic chair to be
reasonable and allow those items for an aggregate amount of $2,568.

(j) Summary
of Costs of Future Care

[149]     In summary, the items allowed for cost of future care are:

Special Damages

[150]     The plaintiff claims $2,918 for special damages in addition to the
amount discussed above for past loss of housekeeping capacity.  The defendant
admits all expenses but $480.90 (mileage, wear and tear and gas) which is in
addition to an amount claimed for gasoline and $193.45, which are for unrelated
prescriptions.  Taking these deductions into account, I allow special damages
of $2,243.65.  With the $5,000 I have allowed in special damages for past loss
of housekeeping capacity, the total for special damages is $7,243.65.

SUMMARY

[151]     In
conclusion I award the following:

[152]    
The parties may speak to the issue of costs should they be unable to
agree.

"GREYELL J."