IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120126

Docket: M106334

Registry: Vancouver

Between:

Janice Zawislak

Plaintiff

And

Dennis Karbovanec, Kari Lynn Thomassen
& Four Star Auto
Lease Ltd.

Defendants

Before: The Honourable Madam Justice Gerow

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: Janice Zawislak suffered injuries in a motor vehicle
accident on January 14, 2009. Liability is not in issue and the defendants
admit that Ms. Zawislak was injured in the accident. The defendants agree
with the past wage loss being claimed; however, they submit that Ms. Zawislak
is exaggerating the nature, extent and duration of the injuries she suffered in
the motor vehicle accident.

[2]            
The issues are:

a)    What are the
nature, extent and durations of the injuries Ms. Zawislak suffered in the accident?

b)    What is the
appropriate award of general damages for pain and suffering?

c)     What
amount, if any, should be awarded for the loss of past and future earning
capacity?

d)    What amount, if
any, should be awarded for the cost of future care?

[3]            
The motor vehicle
accident occurred on January 14, 2009, when Ms. Zawislak’s vehicle was
rear‑ended by a vehicle driven by the defendant, Dennis Karbovanec. At
the time of the accident, Ms. Zawislak was driving an Oldsmobile and was
wearing her seat belt. She was going to pick up supplies at the Home Depot for
a renovation project she was doing.

[4]            
Ms. Zawislak
stopped in a line of traffic and noticed a car coming up behind her. She thought
it had lots of room to stop. She looked forward just before impact. When the defendants’
vehicle struck her vehicle, her foot went off the brake and her car hit the car
in front of her. Ms. Zawislak describes the impact as a hard impact. The
evidence is that the force of the accident bent the frame of her vehicle. Emergency
vehicles did not attend the accident.

[5]            
After she and Mr. Karbovanec
exchanged information, Ms. Zawislak was able to drive her vehicle. Ms.
Zawislak’s evidence is that she did not continue on to Home Depot, but turned
around and went home as she had a headache and her neck was bothering her. She
did not seek medical attention that day, but called her doctor the next day and
saw him the day after that.

[6]            
Ms. Zawislak
complained of headaches, neck and shoulder pain going into the right arm at the
time she first saw Dr. Kelly, her family doctor. Dr. Kelly advised her to stay
off work, rest, and prescribed Advil for the pain. She returned a week later to
see Dr. Kelly and at that time he recommended that Ms. Zawislak attend
physiotherapy treatments.

[7]            
At the time of the
motor vehicle accident, Ms. Zawislak was working part‑time as a corrections
officer at North Fraser Pre-trial Centre (“NFPC”) and part‑time as a
mental health worker, a job she had for approximately 18 years full‑time.

[8]            
Ms. Zawislak was a
single mother who had brought up two sons. One of her adult sons still resides
with her. Prior to the motor vehicle accident, Ms. Zawislak was very physical. She
lived in a house and did the housework and yard work and had done some
renovations. As well, she went to the gym on a regular basis, bicycled, kick‑boxed
and jogged.

[9]            
Ms. Zawislak
returned to work after approximately six weeks. Although Dr. Kelly recommended
that she return to light duties, full duties were easier than light duties she
had been trained for, so she returned to full‑time full work duties at
the NFPC. When she returned to work her symptoms had improved somewhat, but she
was still suffering from neck and shoulder pain, as well as headaches. She
altered her work routine in order to deal with her injuries.

[10]        
Ms. Zawislak’s
evidence is that she has not been able to return to doing all of the work she
used to do around the house or to her pre‑accident extracurricular
activities.

[11]        
Ms. Zawislak’s
evidence is that she is suffering from ongoing headaches, neck, upper back and
shoulder pain as a result of the motor vehicle accident. She says to the extent
her ongoing symptoms were caused by her pre‑existing degenerative spine
condition, an age‑related event, it was asymptomatic at the time of the
accident and was triggered by the trauma of the motor vehicle accident into an
active symptomatic condition.

[12]        
Ms. Zawislak
asserts that in the absence of the motor vehicle accident, it is more likely
than not that her neck, shoulders, upper back and associated headaches would
not be troubling her today.

[13]        
The defendants
take the position that Ms. Zawislak suffered a moderate whiplash injury. They
submit that any ongoing neck pain is not caused by the motor vehicle accident,
but rather has arisen spontaneously as a result of Ms. Zawislak looking over
her shoulder to reverse her vehicle. As well, they point to the fact that she
had a pre‑existing degenerative disc disease, had injured herself on the
job following the motor vehicle accident, and was involved in a subsequent
motor vehicle accident.

[14]        
In order to
establish causation Ms. Zawislak must prove, on a balance of probabilities that
but for the accident she would not have suffered the injury.

[15]        
The Supreme Court
of Canada recently considered causation in Resurfice Corp. v. Hanke, [2007]
1 S.C.R. 333, and reconfirmed that the basic test for determining causation
remains the “but for” test articulated in Athey v. Leonati, [1996] 3
S.C.R. 458. The plaintiff bears the burden of proving that “but for” the
negligent act or omission of each defendant, the injury would not have occurred.
At para. 23, Chief Justice McLachlin noted:

The “but for” test recognizes
that compensation for negligent conduct should only be made “where a
substantial connection between the injury and the defendant’s conduct” is
present. It ensures that a defendant will not be held liable for the
plaintiff’s injuries where they “may very well be due to factors unconnected to
the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327,
per Sopinka J.

[16]        
The plaintiff is not required to establish that the defendants’
negligence was the sole cause of the injury. The tortfeasor must take his or
her victim as the tortfeasor finds the victim and is liable even if there are
other causal factors for which the defendant is not responsible that result in
the victim’s losses being more severe than they would be for the average person.
At the same time, the tortfeasor need not put the victim in a better position
than they would have been in and need not compensate the victim for the effects
of a pre‑existing condition that the victim would have experienced in any
event: Snell v. Farrell, [1990] 2 S.C.R. 311; Athey v. Leonati.

[17]        
The defendants
submit that Ms. Zawislak’s evidence regarding the extent and ongoing nature of
her injuries should not be accepted because she was not a forthright witness. They
point to a number of what they say are inconsistencies in her evidence between
the trial and her examination for discovery. They also point to a discharge
note from her physiotherapist to Dr. Kelly, dated March 12, 2009, in which the
physiotherapist indicated that Ms. Zawislak had regained full shoulder and neck
range of motion with no pain. The note indicates that Ms. Zawislak was still
reporting tightness at the end of the range of neck movements, but thought the
physiotherapist thought it would improve with prescribed stretching and
strengthening exercises. Finally, they point to the fact that there was a 15‑month
gap in Ms. Zawislak reporting any neck problems to Dr. Kelly. They say if Ms.
Zawislak was continuing to experience the symptoms in her neck, she would have
reported it to him and that the only reasonable inference is that she had reinjured
her neck in some way.

[18]        
The defendants
rely on Price v. Kostryba (1982), 17 B.C.L.R. 397 (S.C.) for the
proposition that where there is little or no objective evidence of continuing
injury, the court should be careful in weighing the evidence. They also rely on
Faryna v. Chorny (1952), 2 D.L.R. 354 (B.C.C.A.), a case involving libel,
for the proposition that credibility cannot be gauged solely on the demeanour
of the witnesses, particularly in cases of conflict of evidence. In Faryna,
the court noted in that case the real test for credibility is whether the story
of the witness is in “harmony with the preponderance of probabilities which a
practical and informed person could readily recognize as reasonable in that
place and in those conditions.”

[19]        
The defendants
submit that Ms. Zawislak’s evidence should not be accepted because she gave her
evidence in order to give the impression she was more injured in the motor
vehicle accident than she is.

[20]        
They say that a
functional capacity evaluation performed on Ms. Zawislak indicated that she
exhibited pain behaviour. The defendants submit that pain behaviour should be
interpreted as exaggerated pain behaviour, contrary to the evidence of Ms.
Craig, the functional capacity evaluator. They say Ms. Craig’s evidence that
Ms. Zawislak did not display exaggerated pain behaviour should not be accepted
because of the placement of the comment in her report.

[21]        
They also point to
the fact that Ms. Zawislak perceives her injuries as crippling in the case of
her neck and severely disabling in terms of her back, which does not accord
with the preponderance of the evidence. They say when Ms. Zawislak gave
her evidence she did not appear severely disabled and she has continued to work
full‑time as a corrections officer since six weeks after the motor
vehicle accident.

[22]        
Further, the
defendants assert that Ms. Zawislak’s evidence regarding activities she can
engage in post‑accident was of low calibre. The defendants suggest that
in direct, Ms. Zawislak gave the impression she could not do any physical
activities, and yet later testified that she could walk, use an elliptical
trainer and a vibrating balance board.

[23]        
As well, the
defendants submit that Dr. Kelly’s evidence regarding Ms. Zawislak’s
injuries should not be accepted as he was an advocate for her. They point to
the fact that he gave evidence that Ms. Zawislak did not complain of neck pain
to him between February 2009 and June 2010, and then gave evidence she could
not kick box because of neck pain. It is the defendants’ position that neck
pain was not in his clinical records because it was not complained of.

[24]        
However, in my
view, Ms. Zawislak was a credible witness. The inconsistencies the defendants
point to in the evidence between her examination for discovery and the trial,
are minor in nature. As Ms. Craig testified, the fact that Ms. Zawislak feels
her injuries are crippling and severely disabling is not surprising given how
active she was pre‑accident, and the fact she cannot participate in many
of her pre‑accident activities. Ms. Zawislak’s evidence is that she felt
like she had gone from 20 years old before the accident to someone who is in
her 60s.

[25]        
Ms. Zawislak’s
evidence in that regard is consistent with co‑workers called to testify,
as well as her son and ex‑husband. All of the lay witnesses who knew Ms. Zawislak
before and after the accident testified that the injuries she suffered had
caused a dramatic change in her energy level and what she could do physically.

[26]        
Their evidence was
not challenged. The evidence of the lay witnesses who knew her both before and
after the accident establishes that Ms. Zawislak was in good health before the
accident. She was an energetic and personable woman without any health problems.
Ms. Zawislak has not been the same since the accident. She cannot participate
to the same extent, or at all, in many of the fitness, household, social or
work activities she used to do. It is apparent that she is a stoic person and
has attempted to carry on with as many of her daily and work activities as
possible, but that the effects of the injuries she sustains impact every aspect
of her life. Ms. Zawislak has done her best to adapt to the injuries, but she
suffers from ongoing symptoms which cause her pain.

[27]        
In my view, there
is a significant temporal connection between the accident and the ongoing
symptoms that Ms. Zawislak has suffered. The evidence from Ms. Zawislak
and the lay witnesses establishes that there has been a dramatic change in Ms.
Zawislak’s physical abilities and energy before and after the accident.

[28]        
Although the
defendants argue that Ms. Zawislak’s evidence that her symptoms are ongoing and
are not improving is not in accordance with the medical evidence, that is not
correct.

[29]        
Dr. Paramonoff,
the specialist in physical medicine and rehabilitation, testified that she had
reviewed all of the records, including the physiotherapist’s note that Ms. Zawislak
had full range of motion and no pain in her neck as of March 2009. She
disagreed that note meant that the symptoms from the accident had fully
resolved. She pointed to the fact that the physiotherapist had reported there
was tightness at the end of the range of motion. The way Dr. Paramonoff
interpreted the physiotherapist’s note was that there was some improvement but
the injury had not resolved. Based on Ms. Zawislak’s history, Dr. Paramonoff’s
opinion is that her ongoing symptoms are as a result of the accident because
the accident made her pre‑existing disc disease symptomatic.

[30]        
Dr. Paramonoff’s
opinion is that the accident caused musculoskeletal injuries that contributed
to making the asymptomatic disc degeneration symptomatic, which has resulted in
Ms. Zawislak’s ongoing symptoms. Dr. Paramonoff could not say when and if the
degenerative disc disease would have become symptomatic without the accident,
but testified that the likelihood of Ms. Zawislak not having symptoms was good.
As well, in Dr. Paramonoff’s opinion the flare‑up in the neck pain in
July 2010 was likely partially contributed to by the symptoms triggered by the
accident. Dr. Paramonoff’s opinion is that in light of the degenerative changes
to her spine, Ms. Zawislak is likely to have ongoing residual symptoms in her
neck and back as a result of the accident.

[31]        
Dr. Cameron, a
neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle
spasm in her shoulder muscles and neck muscles, left side predominant. In Dr.
Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and
musculoskeletal injuries to her neck, shoulders and upper back in the motor
vehicle accident. Ms. Zawislak has developed headaches associated with the neck
pain as a result of the musculoskeletal injuries to her neck and shoulders that
she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains
partially disabled because of the ongoing upper back pain, headaches and neck
pain which had resulted from the soft tissue injuries and musculoskeletal
injuries in the form of a whiplash she sustained in the motor vehicle accidents.

[32]        
According to Dr.
Cameron, 80% of the individuals over the age of 40 have degenerative disc
disease and most of those individuals go around without pain until a trauma,
such as a motor vehicle accident, renders their disc disease symptomatic. Trauma
makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially
degenerated and, in his opinion, her ongoing pain in her neck, with the
attendant headaches, and her back are likely caused by the motor vehicle
accident.

[33]        
Dr. Kelly’s
evidence is that Ms. Zawislak suffered injuries in the motor vehicle accident
which consisted of a flexion-extension soft tissue injury of her neck, the
exacerbation of her pre‑existing asymptomatic cervical degenerative disc
disease, flexion extension thoracic and lumbar soft tissue injuries, chronic
headaches and chronic sleep disruption. As a result of the accident, Ms.
Zawislak continues to suffer neck, shoulder and mid-back pain and stiffness. She
also continues to suffer chronic headaches and sleep disruption. Although the
defendants assert I should put little weight in Dr. Kelly’s opinion because he
was an advocate for Ms. Zawislak, I do not agree. Dr. Kelly’s evidence was
consistent with that of the other witnesses, both expert and lay.

[34]        
Finally, the
defendants suggest that Ms. Zawislak’s ongoing symptoms could be a result of a
subsequent motor vehicle accident or a work‑related accident. However,
the evidence is that the subsequent motor vehicle accident was very minor and
did not injure Ms. Zawislak, and the work‑related accident involved her
knee, not her neck and back.

[35]        
In my view, the
preponderance of evidence establishes there is a temporal connection between
the accident and Ms. Zawislak’s ongoing symptoms of neck pain, upper back pain
and shoulder pain, as well as her headaches. The whiplash‑type injury Ms.
Zawislak suffered in the accident caused or contributed to her asymptomatic
degenerative disc disease becoming symptomatic, which has resulted in the
symptoms she now suffers.

[36]        
I turn to the
issue of general damages. Ms. Zawislak asserts that the evidence, taken as a
whole, demonstrates that she has more than likely suffered a permanent partial
disability relating to her ongoing headaches, neck, upper back and shoulder
pain caused by the motor vehicle accident. To the extent it arose from any pre‑existing
degenerative spine condition and age‑related event, she submits this was
asymptomatic and trigged by the event.

[37]        
The defendants
submit that any ongoing neck symptoms Ms. Zawislak is suffering from were not
caused by the accident, but are the result of some other accident or a spontaneous
onset of her degenerative disc disease. The defendants assert that Ms. Zawislak
suffered a moderate whiplash‑type soft tissue injury to her neck and
back, the majority of which resolve within two months after the accident, except
for some mid-back pain that continues to improve.

[38]        
As set out earlier,
I accept that Ms. Zawislak is suffering from ongoing neck, back, headaches and
shoulder pain as a result of her asymptomatic condition becoming symptomatic as
a result of the accident. The issue in assessing damages is whether there was a
measurable risk that her pre‑existing disc disease would have
detrimentally affected Ms. Zawislak in the future regardless of the defendants’
negligence.

[39]        
In Athey,
the court sets out the way in which a pre‑existing condition may be
relevant to the assessment of damages at p. 473:

[34] …The
“crumbling skull” doctrine is an awkward label for a fairly simple idea. It is
named after the well‑known “thin skull” rule, which makes the tortfeasor
liable for the plaintiff’s injuries even if the injuries are unexpectedly
severe owing to a pre‑existing condition. The tortfeasor must take his or
her victim as the tortfeasor finds the victim, and is therefore liable even
though the plaintiff’s losses are more dramatic than they would be for the
average person.

[35]
The so‑called “crumbling skull” rule simply recognizes that the pre‑existing
condition was inherent in the plaintiff’s “original position”. The defendant
need not put the plaintiff in a position better than his or her original
position. The defendant is liable for the injuries caused, even if they are
extreme, but need not compensate the plaintiff for any debilitating effects of
the pre‑existing condition which the plaintiff would have experienced
anyway. The defendant is liable for the additional damage but not the pre‑existing
damage: … Likewise, if there is a measurable risk that the pre‑existing
condition would have detrimentally affected the plaintiff in the future,
regardless of the defendant’s negligence, then this can be taken into account
in reducing the overall award: … This is consistent with the general rule
that the plaintiff must be returned to the position he would have been in, with
all of its attendant risks and shortcomings, and not a better position.

[40]        
As stated earlier, the defendants argue that Ms. Zawislak’s neck
complaints are not a result of the accident, but have arisen spontaneously as a
result of another trauma she suffered. However, there is no evidence that Ms.
Zawislak was subsequently injured. All of the medical experts testified it was
very unlikely that her symptoms would have arisen spontaneously.  Rather, the
medical experts were of the opinion that Ms. Zawislak’s back and neck would
likely not have become symptomatic without the trauma or injury she suffered in
the accident. Both Dr. Cameron and Dr. Paramonoff testified that
degenerative disc disease is common in individuals over the age of 40 and it is
most often asymptomatic without some trauma occurring.

[41]        
The defendants have provided no evidence of any other trauma causing the
injuries. As stated earlier, the defendants point to the subsequent motor
vehicle accident Ms. Zawislak was involved in, but Ms. Zawislak’s
uncontroverted evidence is that she was not injured in that accident. As well,
they point to the fact that her neck flared up as a result of trying to look
behind her when she reversed her car. However, Dr. Paramonoff’s opinion was
that is consistent with the injuries she suffered in the accident.

[42]        
There was no
evidence to support the defendants’ assertion that the neck pain and ongoing
headaches is somehow distinct from the back pain. The medical evidence is that
the shoulder, back, neck and head muscles are interconnected.

[43]        
The defendants
suggested that the lack of reference to neck pain in Dr. Kelly’s clinical
records for a period from February 2009 to June 2010 supports their argument
that the neck injury resolved. However, both Dr. Kelly and Ms. Zawislak
disagreed with the suggestion that meant the neck pain caused by the accident
was resolved by February 2009. As stated earlier, I accept Ms. Zawislak’s
evidence that the neck and back pain have been ongoing, with the symptoms going
through periods of improvement and periods where they flare up.

[44]        
In my view, the
evidence establishes that the probable cause of Ms. Zawislak’s headaches,
neck pain, upper back and shoulder pain is the motor vehicle accident
exacerbating the pre‑existing asymptomatic degenerative disc disease. While
there was some risk of her degenerative disc disease becoming symptomatic, the
medical evidence was that it was likely it would not become symptomatic absent
a trauma. In my opinion, this case falls within the “thin skull” rule as
opposed to the “crumbling skull” rule enunciated in Athey, and the
defendants are liable for Ms. Zawislak’s injuries even though they may be more
severe than expected due to her pre‑existing condition.

[45]        
Ms. Zawislak and
the defendants have provided me with a number of cases to assist in determining
the appropriate award for general damages. Ms. Zawislak submits an award for general
damages of $75,000 is appropriate, and the range is $70,000 to $90,000. The
defendants submit that their authorities support an award for general damages
in the range of $30,000. I have considered the authorities presented by the
parties. As in most cases, there were aspects of the decisions which were
helpful, but they also have features which distinguish them from this case.

[46]        
In Stapley v.
Hejslet, 2006 BCCA 34 at para. 46, the court noted that a non‑pecuniary
award will vary from case to case to meet the specific circumstances of the
case and set out the factors to be considered in making such an award as
follows:

[46] The inexhaustive list of common factors cited in Boyd
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]
B.C.J. No. 163 (QL), 2005 BCCA 54).

[47]        
The defendants
rely on Lidher v. Toews, 2009 BCSC 1055; Majewska v. Partyka,
2009 BCSC 175; Hunter v. Yuan, 2010 BCSC 1526; and Park v. Arthur,
2007 BCSC 1365, to support their assertion that the appropriate award for
general damages is $30,000 to $35,000. The defendants’ cases are predicated on
their argument that Ms. Zawislak’s injuries caused by the accident have largely
resolved except for occasional flareups. As stated earlier, the evidence does
not establish that Ms. Zawislak has recovered from her injuries to that
extent.

[48]        
Ms. Zawislak
relies on Edmondson v. Payer, 2011 BCSC 118; Kardum v. Asadi‑Moghadam,
2011 BCSC 1566; Schnare v. Roberts, 2009 BCSC 397; and Carr v.
Simpson, 2010 BCSC 1511, to support her assertion that the appropriate
range for damages is $75,000. The awards for general damages in cases relied
upon by Ms. Zawislak range from $40,000 to $100,000. However, Ms. Zawislak
concedes that the injuries in Carr, where $100,000 was awarded, were
more severe and the impact of those injuries was more severe.

[49]        
Having considered
the extent of the injuries, the fact that the symptoms are ongoing three years
after the accident with very little improvement, that the prognosis for full
recovery is guarded, as well as the authorities I was provided, I am of the
view that the appropriate award for non‑pecuniary damages is $60,000.

[50]        
I turn next to
past wage loss. Past wage loss is agreed to in a gross amount of $2,974. The
parties will agree to the amount of tax which should be deducted from that
amount.

[51]        
I turn next to
past and future loss of opportunity to earn income. Ms. Zawislak is
claiming $75,000 as a result of the past and future loss of opportunity to earn
part‑time income, and $100,000 for her loss of income earning capacity
generally. In my view, there is some aspect of overlap in these two claims and
they should be dealt with together.

[52]        
In regard to the
claim for loss of opportunity to earn past and future income from part‑time
work, Ms. Zawislak submits that but for the accident, it had been her intention
to retire at the age of 55, premised on her ability to earn approximately
$10,000 a year working on part‑time casual shifts as a mental health
worker for Melissa Park Lodge to supplement her income as a corrections officer.
Her evidence is that once she had obtained full‑time status as a corrections
officer and settled into a four days on/four days off shift rotation, she would
be able to pick up shifts as a care aid. She also testified that given her
experience in the field of mental health, she would not have found it difficult
to pick up additional part‑time employment when Melissa Park Lodge closed
at the end of 2010.

[53]        
The defendants
take the position that Ms. Zawislak has not established there is a real or
substantial likelihood that she suffered any loss of opportunity to earn income,
either past or future. They point to the fact that Ms. Zawislak was only off
work for six weeks following the accident. They say that Mr. Zawislak’s
evidence that she intended to work part‑time at Melissa Lodge or some
other facility, in addition to her work at Corrections, should be disbelieved. They
note that Melissa Park Lodge is no longer operating and that Ms. Zawislak gave
reasons unrelated to the accident as the reason for leaving Melissa Park Lodge at
her examination for discovery.

[54]        
However, Ms.
Zawislak explained that the reasons she gave at the examination for discovery
were in relation to leaving her full‑time position at Melissa Park Lodge.
It is clear from a review of the transcript that Ms. Zawislak was referring to
when she left Melissa Park Lodge on a full‑time basis. The question
referred to by the defendants is:  "Okay. What was your reason for leaving
Melissa Park?" Ms. Zawislak had stated in answer to the preceding question: 
"Why I left Melissa? No, I hadn’t started work at North Fraser." Although
not read to her, it is my view that Q. 183 in the examination for discovery
gives context to the answers the defendants are relying on.

[55]        
The defendants’
assertion that Ms. Zawislak’s evidence in regard to her part‑time work
should be disbelieved is based on the premise that Ms. Zawislak is not a
credible witness. However, as stated earlier, I found Ms. Zawislak to be a
credible witness who gave her evidence in a forthright manner.

[56]        
Ms. Zawislak’s
income tax returns show she earned income from Melissa Park Lodge predating the
motor vehicle accident when she was working part‑time as a corrections
officer in the amount of $4,343. Ms. Zawislak testified that she was not able
to pick up as many shifts as she had planned due to the training requirements
for her new position and the fact that she was on‑call at the NFPC until
August of that year when she acquired a set shift.

[57]        
The post‑motor
vehicle accident earnings at Melissa Park Lodge in 2009 were $5,335 and in 2010
were $2,763. Ms. Zawislak’s evidence was that she found it too difficult to
work extra shifts due to her ongoing symptoms and that by 2010 she realized she
wasn’t able to handle more work than her full‑time position as a corrections
officer due to those symptoms.

[58]        
In Gill v.
Probert, 2001 BCCA 331, the court discussed the approach to be taken for
past loss of earnings, stating that there was no need to distinguish between
the approach to be taken to hypothetical events such as a loss of opportunity
for past earnings and a loss of opportunity for future earnings. Hypothetical
events need not be proved on a balance of probabilities, but rather they are to
be given weight based on their likelihood.

[59]        
In this case, the
evidence is that before the accident Ms. Zawislak was a very energetic
person who liked to keep busy. She worked full‑time, and then worked for
her ex‑husband in his business or did home renovations in her spare time.

[60]        
I have concluded,
based on the evidence, there is a substantial likelihood that Ms. Zawislak
would have worked at least some part‑time work but for the accident. Having
considered other contingencies, including the fact that she may not have wanted
to work as much as she got older and may not have been able to obtain as many
part‑time shifts as she wanted, particularly once Melissa Park Lodge
closed in 2010, it is my view that an award of $25,000 is appropriate for past and
future loss of opportunity to earn income for part‑time work.

[61]        
I turn next to Ms.
Zawislak’s claim that she has suffered a loss of opportunity to earn income in
the future apart from her part‑time work. In Perren v. Lalari,
2010 BCCA 140, Madam Justice Garson noted that the first inquiry is whether
there is a substantial possibility of future income loss before one is to
venture into an assessment of the loss, stating at para. 30:

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

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

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

[62]        
Madam Justice Garson noted that a plaintiff must always prove that there
is a real and substantial possibility of a future event leading to the income
loss prior to an assessment of the loss being undertaken.

[63]        
In Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, the court discussed the
assessment of award for loss of future income as follows:

[32] In my view comparator cases are of limited utility in
the assessment of awards for future losses, generally. It is well settled that
an individual’s earning capacity is a capital asset: Parypa v. Wickware,
1999 BCCA 88 at para. 63. An award for future loss of earning capacity thus
represents compensation for a pecuniary loss. It is true that the award is an
assessment, not a mathematical calculation. Nevertheless, the award involves a
comparison between the likely future of the plaintiff if the accident had not
happened and the plaintiff’s likely future after the accident has happened: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) at para. 8. The degree of impairment to the plaintiff’s
earning capacity depends upon the type and severity of the plaintiff’s injuries
and the nature of the anticipated employment at issue.

[33] In valuing the award, the judge must consider the likely
duration of the plaintiff’s prospective working life and must account for
negative and positive contingencies which are unique to each case. The final
award must be fair and reasonable in all the circumstances. This assessment
requires a very fact-intensive, case-specific inquiry. I am persuaded by what
Macfarlane J.A. said in Lawin v. Jones, 98 B.C.L.R. (2d) 126, [1994]
B.C.J. No. 2107 at para. 35, about the lack of utility in comparisons to other
cases:

[G]iven the fact that we cannot foresee the future, it is
impossible in a case like this to find any comfort in resort to other cases
where the future may be more predictable. Judges will differ, perhaps widely,
in making assessments in cases which have been said to depend on what may be
seen in a crystal ball. What is certain is that a trial judge who hears and
observes the witnesses is in a much better position than an appellate judge to
come to a conclusion as to what is fair and reasonable in the circumstances.
…

[64]        
In terms of her
claim for loss of future earning capacity generally, Ms. Zawislak asserts
that she has demonstrated a substantial possibility that she has lost the
capacity to earn income in the future. She says based on the evidence of
herself and two co‑workers, it is apparent if she cannot continue to
perform the physical aspects of her job as a corrections officer due to her
ongoing disability, there is a substantial possibility she will have to go on
either short‑ or long‑term disability, face reassignment to a lower
paying government job, or lose employment altogether if her condition continues
to deteriorate and she can no longer work.

[65]        
Ms. Zawislak
relies on a functional capacity evaluation and vocational assessment report
prepared by Ms. Craig that she did not meet the requirements for the physical
demands for a job as either a corrections officer or a mental healthcare worker.
Ms. Craig concluded that, as she presents today, Ms. Zawislak is likely not
safe working in her current position.

[66]        
Ms. Zawislak’s co‑workers
both testified that they saw Ms. Zawislak struggling with aspects of her job. Ms.
Zawislak testified that she had to make accommodations, such as having inmates
help her move the heavy food and laundry carts in and out of the pods. It is
clear from the evidence of Ms. Zawislak and her co‑workers that a corrections
officer’s position is a very physically demanding position. Although her
employer has the duty to accommodate an employee who is unable to work in his
or her position due to physical limitations, all of the corrections officers
who testified noted that in the event a corrections officer could not continue
in their employment, there was a substantial possibility that they would suffer
a loss of income.

[67]        
Given the guarded
prognosis, I agree that Ms. Zawislak has established there is a real and
substantial possibility she may not be able to continue in her job, which would
lead to an income loss.

[68]        
Turning next to
the assessment of her loss, it is my view that since Ms. Zawislak is
continuing to work in her position, the earnings approach is not appropriate
and the capital asset approach is more appropriate. In Perren v. Lalari,
the court confirmed that the approach to be taken for a future loss of earning
capacity in situations where the loss, though proven, is not measurable in a
pecuniary way is the one set out in Brown v. Golaiy, 1985, 26 B.C.L.R.
(3d) 353 (S.C.) at p. 4:

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case. Some
of the considerations to take into account in making that assessment include
whether:

1.         The plaintiff has been rendered less capable overall
from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as
an employee to potential employers;

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

4.         The plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[69]        
In conducting the analysis under this head, the court then has to
consider the contingencies, both positive and negative, which are applicable in
arriving at a final sum.

[70]        
In my view, Ms. Zawislak has established that there is a possibility she
will no longer be able to perform the very physical job she does now in the
future, that she has been rendered less capable overall from earning income
from all types of employments less marketable and less attractive as an
employee and may not be able to take advantage of all job opportunities. As
well, it was evident from her testimony that Ms. Zawislak is less valuable to
herself as a result of her diminished capacity.

[71]        
However, there are also positive contingencies to be factored in. The
evidence that there is a duty on the employer to accommodate her if she cannot
perform her job functions. At this time Ms. Zawislak is able to perform her job.
There is some possibility, based on the medical evidence, that Ms. Zawislak may
have some improvement of her symptoms, or at least pain control, which will
allow her to continue to function in her current position.

[72]        
Having taken the positive and negative contingencies into account, as
well as the evidence as a whole, it is my view that the appropriate award for
future loss of earning capacity, in addition to the loss of opportunity to earn
income through part‑time work, is $30,000.

Cost of Future Care

[73]        
I turn next to the
cost of future care. Cost of future care is established if there is a medical
justification for the claim and the claim is reasonable: Aberdeen v. Zanatta,
2008 BCCA 420 at para. 42.

[74]        
In this case, Dr.
Paramonoff and Dr. Cameron both agree with Ms. Craig’s recommendations. The
recommendations are that Ms. Zawislak undergo an individual rehabilitation
program with a physiotherapist consisting of:

·      
A six-week individualized program;

·      
Physiotherapy treatment on an ongoing basis three to four times a
year, 5 to 6 sessions per course of treatment.

[75]        
Ms. Zawislak has calculated the cost of future physiotherapy treatments
at $1,350 for the initial treatments and 962.50 per year thereafter. She seeks
$10,000 under the head of damages. As stated earlier, Ms. Zawislak is currently
47 years old. In my view, $10,000 is an appropriate award under this head of
damages.

Special Damages

[76]        
I turn next to the
issue of special damages. Ms. Zawislak claims the amount of $2,450.36 for
special damages. She was not challenged on any of these amounts during cross‑examinations.
The defendants’ assertion that she should only recover $180 for the first bout
of physiotherapy is not supported by the evidence that her symptoms have been
ongoing.

[77]        
As a result, I
have concluded that Ms. Zawislak is entitled to recover the full amount of her
special damages.

[78]        
In summary, I have awarded the following amounts:

·      
Non‑pecuniary damages – $60,000

·      
Past loss of income – the net taxable amount of $2,974.33

·      
Past and future loss of income earning capacity – $55,000

·      
Future cost of care – $10,000

·      
Special damages – $2,450.36

·      
Total: $130,424.69, less the applicable tax

[79]        
Ms. Zawislak is
entitled to pre‑judgment interest on both the past loss of income and the
special damages. As well, she is entitled to her costs pursuant to Rule 15‑1
in the amount of $11,000 exclusive of disbursements, subject to submissions.

[SUBMISSIONS
RE COSTS]

[80]        
THE COURT:  All
right.  I will award costs in the amount of $17,500 based on the fact that
there was a settlement offer by the plaintiff which the award of damages has
exceeded.

“Gerow
J.”