IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120511

Docket: M094347

Registry:
Vancouver

Between:

Tracey Lynn Foster

Plaintiff

And:

Carolyn Marie
Kindlan

and Justin Thomas
Pineau

Defendants

Before: The Honourable Mr. Justice
Savage

Reasons for Judgment

I.                
Introduction

[1]            
The Plaintiff Tracy Lynn Foster (“Ms. Foster”) alleges she was
injured in two motor vehicle accidents which are admitted to be the result of
the negligence of the Defendants.  She is currently a licensed practical nurse
(“LPN”) but was formerly employed as a personal trainer and exercise instructor.

[2]            
The first accident occurred in Maple Ridge on September 25, 2007
when a vehicle owned and negligently driven by the Defendant Carolyn Marie
Kindlan rear-ended Ms. Foster’s vehicle (the “2007 Accident”).  The second
accident occurred in Port Coquitlam on May 5, 2009 when a vehicle owned
and negligently driven by the Defendant Justin Thomas Pineau rear-ended Ms. Foster’s
vehicle (the “2009 Accident”).

[3]            
Prior to the 2007 Accident Ms. Foster had been in two earlier motor
vehicle accidents, one in 1999 and one on February 1, 2005.  Between the
2007 Accident and the 2009 Accident Ms. Foster had been in a workplace
incident on November 3 2008 in which she sustained an injury while restraining
a combative patient (the “2008 Workplace Incident”).

[4]            
The Defendants deny that the 2007 Accident or the 2009 Accident are
related to any of Ms. Foster’s current complaints.  The Defendants say
that Ms. Foster is a “crumbling skull”, having sustained pre-accident
injuries of a significant nature, which had effects that were still symptomatic
at the time of the accidents.  Alternatively, the Defendants say that Ms. Foster
is a “thin skull” and causal issues related to pre-existing and subsequent
conditions are relevant.

[5]            
The Defendants say that one of Ms. Foster’s injuries, a hip injury,
was not caused by either the 2007 Accident or the 2009 Accident, but was either
caused by a the 2008 Workplace Incident, or by prior unrelated causes.  Thus
the parties are far apart on the various heads of damage including
non-pecuniary damages, past wage loss, loss of earning capacity, the cost of
future care and special damages.

II.              
Issues

[6]            
The primary issues are (1) whether the Plaintiff’s injuries were caused
by the 2007 Accident and 2009 Accident or by some other cause; and (2) the
damages suffered because of the two accidents.  Fundamental to the position of
the Defendants is the Plaintiff’s credibility.

III.            
Background

[7]            
Ms. Foster is 47 years old.  She is a single parent who lives with
her 18 year old daughter in Maple Ridge, B.C.  Prior to 2004 she worked as a
health care aide.  From November 2004 to 2007 she was employed as a personal
trainer and fitness instructor at Good Life Fitness in Pitt Meadows, B.C.

[8]            
On February 1, 2005 Ms. Foster was involved in a motor vehicle
accident (the “2005 Accident”) which is not the subject of this action.  When
stopped, her vehicle was struck by another car.  She saw her family physician Dr. Sam
3 days after the 2005 Accident.  Her major complaints at that time were a sore
neck and shoulder and stiffness in her lower back.  Ms. Foster had x-rays
of her lumbar spine and pelvis and hips in August 2005.  By January 2006 she
reported that she was 60-70% recovered.  Ms. Foster continued with her exercise
classes but at reduced intensity.  By the end of 2006 Ms. Foster had made
significant recovery from these injuries.  She continued, however, to see a
chiropractor, Dr. Pollard, for periodic “tune-ups” and was not completely
asymptomatic.

[9]            
In July 2007 Ms. Foster commenced a Licensed Practical Nurse
(“LPN”) course at Vancouver Career College in Abbotsford, B.C.  This is a yearlong
course which she completed in July 2008.  Nursing had long been a goal of hers
as her mother had been a registered nurse, but she put this ambition on hold
while raising her daughter.  She took out student loans to help finance the
course.  She ceased most personal training and fitness instructing in 2007 and
has worked as an LPN since she received her certification.

[10]        
The 2007 Accident occurred on September 25, 2007 on the Lougheed
Highway near the intersection of Dewdney Trunk Road, in Maple Ridge, B.C.  The
Defendant Carolyn Kindlan was driving a 1997 Honda Civic that “rear-ended” Ms. Foster’s
2005 Honda Civic.  The damage to both vehicles, including labour, was less than
$3,000.  The parties had a polite interaction at the scene and Ms. Kindlan
recalls receiving a phone call from Ms. Foster later inquiring after her
health.  Ms. Kindlan, who is now 25, was not injured.

[11]        
Ms. Foster saw Dr. Sam on October 4, 2007 following the
2007 Accident.  She complained of soreness to her neck, mid back and right arm;
pain with head and shoulder movement; and low back stiffness although she had
good range of movement in her head and shoulder.  Ms. Foster saw various
care providers after the 2007 Accident including a physiotherapist, a massage
therapist, a personal trainer and her chiropractor, Dr. Pollard.

[12]        
On July 24, 2008 Ms. Foster was hired as a casual LPN at Ridge
Meadows Hospital (“RMH”).  Effective August 25, 2008, she obtained a
permanent part-time position as an LPN at RMH, which was .43 of a full time
equivalent (“FTE”) position.  She later obtained a .91 FTE position, followed
by a .73 FTE position that afforded her less physically demanding tasks.

[13]        
On November 3, 2008 Ms. Foster was involved in a Workplace
Incident.  A “code white” was called when a patient in withdrawal tried to
escape and became fractious.  She was pushed forcefully to the floor while
standing near the patient, landing on the left side of her body.  Ms. Foster
felt pain in her left knee, left buttock area, left lower back and left side of
her neck.  A WorkSafe BC incident report was completed.  As a result of her
injuries she missed shifts on November 5-8, 2008, for which she received
wage loss benefits.

[14]        
She saw Dr. F.S. Lim regarding the Workplace Incident.  His
diagnosis was of “Contusion L buttock, lower back strain”.  He estimated that Ms. Foster
would be off work for one to six days.  Under the heading “Clinical
Information”, he wrote: “Fell at work while trying to take down an agitated
patient.  Landed on buttock.  Onset of pain L buttock + L knee thereafter.  Worked
yesterday + worse.  Tender L buttock over ischial tuberosity.  SLR [normal].  Tender
L [sacroiliac joint].  L hip – internal rotation [caused] pain in groin.  L
knee- ROM full – stable.  Rx advil…”.

[15]        
In 2009 before the 2009 Accident, Ms. Foster obtained a temporary 0.84
position at the Gardenview unit of RMH.  This was a temporary position and
intended to continue until August 2009 at which time she would return to her
.43 FTE position.  In the spring of 2009 Ms. Foster also took motorcycle
training.  She obtained her licence and in April 2009 went to Victoria to pick
up a 1300 CC motorcycle which she had purchased.

[16]        
On May 5, 2009 she was involved in the 2009 Accident.  This was
also a rear-end collision.  The Defendant Justin Thomas Pineau was 18 at the
time of the 2009 Accident.  He was driving a 1996 Nissan Altima that collided
with Ms. Foster’s 2005 Civic, which was stopped on the Mary Hill Bypass in
Port Coquitlam, B.C.  Damage to the Defendant’s vehicle was estimated to be
$1,943.47 but the older vehicle was determined to be a total loss.  There was
damage and cracking to the rear bumper of Ms. Foster’s vehicle.  Mr. Pineau
testified that he saw Ms. Foster throw her hands up in the air after the
collision in evident frustration.  Despite this, they had a polite exchange
after Mr. Pineau called his father on his cell phone.  Mr. Pineau was
not injured.

[17]        
On May 6, 2009 Ms. Foster attended at the RMH Care Clinic. 
She complained of a sore neck, upper back and low back, left and right knee,
stiff muscles and a headache.  She said she would not miss work.  On May 19,
2009 she attended Dr. Sam’s office.  She complained of pain to the left
knee, left hip and neck, and low back soreness.

IV.           
Credibility of the Plaintiff

[18]        
The Defendants raise as an issue the credibility of the Plaintiff.  The
Defendants say that there are at least 12 different matters that give rise to
significant questions about the credibility and veracity of the Plaintiff’s
evidence, including (1) false statements she made to Workplace BC, (2)
statements made concerning the hours worked, (3) failing to disclose her full
medical history to her examining doctors, (4)  misrepresenting her health
immediately before the 2007 Accident, (5) misrepresenting a health care
provider as doing a study on her condition, (6) blaming weight gain on the
accidents, (7) blaming her financial circumstances on the accidents, (8)
activities she did while on disability, (9) misrepresenting her mental state,
(10) acting inconsistently, (11) testimony about hours worked, and (12) her manner
of giving evidence.

[19]        
The Plaintiff, contra, says that while there may be occasional
inconsistencies, it is an error to give too much weight to them, as the
circumstances testified about occurred years before, and the record taker may have
differing concerns.  For example, in considering inconsistencies between
testimony and clinical records in Carvalho v. Angotti, 2007 BCSC 1760,
N. Smith J. noted that “it is a rare case…where such inconsistencies
cannot be found” (see paras. 14-16).  Parrot J., in Burke-Pietramala
v. Samad, 2004 BCSC 470 at para. 104 found “little surprising in
the variations of the plaintiff’s history…given the human tendency to
reconsider, review and summarize history in light of new information”.  I agree
with those observations, although I note that it is entirely appropriate that
such matters be pursued in cross-examination, as was done here, as part of the
pursuit of truth.

[20]        
The first matter concerns a statement made to WorkSafe BC on July 13,
2011, following a back injury suffered while moving a patient on July 3,
2011.  Ms. Foster was off work from July 4 until she returned to work
July 12, 2011.  The WorkSafe BC record contains the following statements:
“Worker denies any prior problems to her back”, “She stated she was in a MVA in
2009 but injured her hip and pelvis” and “Worker stated she has not sought
medical treatment or lost time from work in the past due to back problems”.  It
is apparent that Ms. Foster has had prior back problems.  The context of
this report must be borne in mind.  The concern was the immediate injury for
which she had been off work for a very limited time, for a period commencing a few
days earlier, and following which she had already returned to work.  The
statements do not purport to be direct quotes, nor do we know the questions
asked.

[21]        
The second matter concerns a statement recorded in notes made by Derek Nordin,
a vocational rehabilitation consultant, that she had worked 3,000 hours in the
ten months between July 2008, when she commenced work, and May 5, 2009,
the date of the 2009 Accident.  Ms. Foster acknowledged that if the
statement was recorded in the notes she must have made it, but the statement is
obviously wrong.  This statement is clearly and obviously in error, as can readily
be shown by employment records.  Ms. Foster did not remember making it. 
The Defendants say “The statement amounts to a knowing misrepresentation by the
plaintiff of her work history to her vocational expert on a significant
point”.  Why Ms. Foster would want to mislead her vocational expert on a
significant but readily verifiable point is not said.  Ms. Foster
suggested she may have added up wrongly the workplace records.  The workplace
records produced by Ms. Doutaz were confusing, so much so that the
Defendants themselves reformatted that information into a much more readily
understandable format, which was of benefit to all of the parties and the Court. 
I cannot conclude that Ms. Foster deliberately misled anyone on this point,
or that the vocational expert fell into error because of it.

[22]        
The Defendants say that Ms. Foster failed to disclose her full
history to her examining doctors.  In particular, she failed to disclose
evidence of long-standing problems in the general hip area.  This is important
as the etymology of the labral tear in her left hip is the main issue in this
trial.  There is evidence of hip pain in the records, in particular the
documents found in tabs 1-6, 8-11 in Ex. 46.  The Defendants say that “The
plaintiff attempted to explain these records by stating that ‘when I said
‘hip’, I really meant ‘lower back and glute…’ However, there are enough
obvious references by medical practitioners to the ‘hip joint’ to suggest that
this is a later attempt to cover up her inaccurate history.”

[23]        
The Plaintiff’s theory of the case is that the labral tear was caused by
the 2009 Accident.  The 2009 Accident is the first occasion that the plaintiff
complains of anterior hip pain, pain in the area on the anterior aspect where
the thigh meets the pelvis (the “anterior hip”).  The Defendants argue that
this is not so, pointing to the above referenced evidence and the important
evidence of Dr. Lim.  They say that evidence belies the Plaintiff’s
assertion that she had never experienced pain in the anterior hip.  Dr. Lim’s
evidence concerns the Workplace Incident, which occurred in November 2008.  At
that time, the Plaintiff presented with pain in the left buttock and left
knee.  On internal rotation of the left hip she experienced pain in the groin. 
Dr. Lim’s diagnosis, however, was “Contusion L buttock” and “lower back
strain”, not any injury to her hip.  Nor does the record indicate that she
presented complaining of any pain in her hip; rather, on Dr. Lim
performing the internal rotation he elicited a report of pain in the groin.

[24]        
It is apparent that Ms. Foster saw a variety of physicians and
health care providers over an extended period for her various complaints.  I
cannot conclude, however, that by not providing a “full history”, as revealed
by a thorough analysis of all of her clinical records, that she ever sought to
mislead her examining doctors as the Defendants allege.

[25]        
The Defendants argue that Ms. Foster was misleading in describing her
pre-2007 Accident condition.  Specifically, they say that the evidence of Dr. Pollard
shows that she continued to have symptoms following her 2005 Accident at the
time of the 2007 Accident.  Dr. Pollard considered a once-a-month visit a
“tune up”.  Her records show that Ms. Foster attended at her clinic on two
occasions in May 2005, three occasions in June 2005, 3 occasions in July 2005,
5 occasions in August 2005, 3 occasions in September 2005, 3 occasions in
October 2005, once in January 2006, once in March 2006, twice in May 2007,
twice in June 2007, once in August 2007 and once in September 2007 until the
2007 Accident.  The records reveal that she was attending Dr. Pollard with
declining frequency.  On balance these records reveal that Ms. Foster was at
or near what Dr. Pollard would describe as a “tune-up” schedule prior
to the 2007 Accident.

[26]        
The Defendants say that Ms. Foster misrepresented to her physician
that Dean Kotopski was doing a study on labral tears.  As a result Dr. Sam
recommended she see Mr. Kotopski.  This is significant because she had
earlier seen Robert Gander who had recommended that “Ms. Foster would
benefit from participating in an occupational rehabilitation program (OR) as a
precursor to an eventual GRTW program”.  Based on Mr. Gander’s report she “could
have returned to work by July 6, 2010 and should have returned to work at
the latest by August 15, 2010”.  This then delayed Ms. Foster’s
return to work which belies her assertion that she was anxious to return to
work.

[27]        
It is agreed that Mr. Kotopski was not doing a study on labral
tears.  It is unclear to me why Ms. Foster would have thought this.  Mr. Kotopski
did testify that he focused on hip injuries and had a lot of experience with
labral tear injuries, so it is possible that Ms. Foster was confused.  In
any event, there is no evidence before me that any misstatement was made with
the intent to deceive.  The proposition that one is asked to infer from this,
however, is not supported by the evidence.

[28]        
 With respect, I do not read Mr. Gander’s report as supporting the
propositions alleged.  While Mr. Gander supported participating in an
occupational rehabilitation program, he said that “…consideration should be
given to Ms. Foster’s potential barriers to realizing a relatively expeditious
and durable return to work….”  She “…requires re-gaining her confidence in
her capacities to perform the full scope of her pre-disability LPN duties and
establishing her durability, via undertaking graduated exposure to potentially
provocative activities.  She would benefit from increasing the strength and
functioning of her low back and left hip musculature with the aim of improving
her function and durability….”

[29]        
In abiding her family physician’s advice, Ms. Foster was doing no
more or less than attending to her long term medical care giver’s
recommendations.  The consequence of failing to abide such advice, in other
contexts, can result in negative inferences:  See Chiu v. Chiu, 2002
BCCA 618, 8 B.C.L.R. (4th) 227, at para. 57; Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, 17 B.C.L.R. (5th) 101;
Wahl v. Sidhu, 2012 BCCA 111 at para. 31-32.

[30]        
The Defendants say that Ms. Foster is incorrect that her weight
gain is consequential on the motor vehicle accidents.  In support they
reference the surveillance photographs taken in August 2009 which they say
“suggest the plaintiff has roughly the same physical appearance as she has
today”.  Try as I may, I am quite unable to draw the conclusion the Defendants
seek based upon my courtroom observations.

[31]        
It is asserted that Ms. Foster wrongly blames her poor financial
circumstances on the accidents.  In doing so, the Defendant’s reference, in
part, her earnings in 2007 and 2008.  Of course in half of each of those years
she was not working because she was taking the LPN training, so those years are
not good comparators.  Nor do I infer that Ms. Foster’s blames her
financial situation on the accidents.  There is a confluence of circumstances
that include her age, her previous work history, her marital status, her
existing debt and her late entry into a new career.  All those circumstances
were acknowledged to contribute to her stress.

[32]        
The Defendants further attack Ms. Foster’s credibility saying that
she “marshalled activities around disability”, or the collection of disability
benefits.  It is agreed that Ms. Foster was on short-term disability from
June 16, 2009, to September 14, 2009.  Further she was on long-term
disability from November 17, 2009, to April 18, 2011.  The activities
so marshalled included motorcycle trips, a holiday, and elective breast-reduction
surgery.

[33]        
During these periods Ms. Foster did go on a couple of significant motorcycle
trips with friends.  The Defendants introduced surveillance video showing Ms. Foster
riding her motorcycle.  There is no suggestion that Ms. Foster ever denied
taking such trips or being capable of doing so.  There is no medical opinion
evidence before me that a person with her injuries is or should be incapable of
such trips.  It was Ms. Foster’s evidence that she found riding her
motorcycle easier than driving an automobile.  She and her companions testified
about these trips.  They stopped every hour or hour and a half to rest and
stretch.

[34]        
Also while on disability, Ms. Foster took a three-week holiday in
the Philippines to attend her brother’s wedding.  She also had elective breast-reduction
surgery in November 2010.  However, as counsel for the Plaintiff notes, Ms. Foster
was also undergoing various treatments during the disability period, although
not immediately following recovery from the breast reduction surgery.  Those
treatments are referenced in the treatment records of Golden Ears Orthopaedic
& Sports Physiotherapy, Westgate Wellness, and Kotoposki Physio.

[35]        
Ms. Foster testified that during her disability period she was at
times despondent and emotional.  Some of her friends testified that she was
absent from their lives and was not herself.  She returned to work in April
2011.  Another friend, Susan Taylor, testified that she attended a birthday
party for Ms. Foster in 2011 which was a good party with socialization and
dancing.  Although the Defendants admit that this is “a small detail”, they say
it is “wholly inconsistent” with the evidence of an emotional withdrawal prior
to her return to work.  I agree that this is a small detail.  An occasional
cheerful episode is not inconsistent with the weight of the evidence that Ms. Foster
had periods of general malaise while off work during this period.

[36]        
In 2011 Ms. Foster applied for and accepted a full time job at
Chilliwack Hospital.  This was a permanent full-time job.  After reflection Ms. Foster
declined to take the job.  She said she was concerned about her ability to do
what the job demanded.  Although these decisions show prevarication on her part
on an important matter, this speaks less about general credibility than to her
ability for self-assessment.

[37]        
The Defendants assert that the records show some discrepancy between the
hours Ms. Foster says she is capable of working, and the hours she
actually worked.  The Defendants make special mention of the hours worked in
October, November, and December 2011.  They say that this shows that Ms. Foster
is capable of more work effort than she claims to be capable of.  As I
understand the evidence, however, her financial circumstances made it incumbent
on her to work more, and she did so by taking the less eventful night shifts. 
This matter will be elaborated on further in the reasons which follow.

[38]        
As a general point, the Defendants say that less weight should be given
to Ms. Foster’s evidence because of leading questions and matters raised
on re-examination.  Both parties at times used leading questions with their
witnesses.  It is, of course, not always immediately apparent that part of what
otherwise appears to be narrative touches on a matter that is in issue.  In
this case the Plaintiff was testifying as to matters which occurred over a
relatively protracted period, at times as early as seven years before.  At
other times the Plaintiff may not have understood the nuance of the questions
and was directed to the topic at hand.  Of course, witnesses vary in
perspicacity.  Ms. Foster is who she is.  I am not prepared to draw an
adverse inference simply from the manner or method of questioning in this case.

V.             
Causation

A.             
Generally

[39]        
In this case there is a serious issue regarding causation.  The parties
agree that the test for causation in the law of negligence is the “but for”
test.  The Plaintiff bears the burden of showing that “but for” the negligent
act or omission of the defendants the injury would not have occurred: Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7 at para. 21.

[40]        
The “but for” test is not one demanding scientific certainty but is to
be proven on a balance of probabilities.  It must be more likely than not that
without the tort the injury or medical condition would not have occurred: Tsalamandris
v. MacDonald, 2011 BCSC 1138, per Griffin J. at paras. 143-144,
Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 16.

[41]        
In determining liability it is not necessary to show that a defendant’s tortious
conduct is the sole cause of the injury: Athey at para. 17. 
However, the Plaintiff must establish that there is a substantial connection
beyond the de minimus range between the injury and defendant’s
negligence in order to find a defendant liable: Sam v. Wilson, 2007 BCCA
622 at para. 109, Farrant v. Laktin, 2011 BCCA 336 at paras. 10-11.

B.             
The Medical Opinions on Causation

[42]        
There are opinions on causation from four physicians.

[43]        
Dr. Janie Sam is a general practitioner and has been Ms. Foster’s
family physician since 1991.  She attributes Ms. Foster’s right shoulder
injury to the 2007 Accident and the labral tear of her left hip to the 2009
Accident.

[44]        
Dr. Russell O’Connor is a physiatrist.  In his opinion the 2007
Accident caused musculoligamentous strain to Ms. Foster’s neck, mid-back
and low back, and the 2009 Accident caused left knee pain and left hip pain and
was the cause of the labral tear of her left hip.

[45]        
Dr. Gilbart is an orthopaedic surgeon.  It is Dr. Gilbart’s
opinion that “…the condition of Ms. Foster’s right shoulder, neck and upper
back pain is related to the first motor vehicle accident of September 25,
2007”.  He continues “Ms. Foster then suffered from an aggravation of her
neck and upper back pain, as well as a new injury and pain in the left side of
her low back, left hip, left knee, left ankle and left foot during the second
motor vehicle accident of May 5, 2009”.  In a second opinion Dr. Gilbart
said  “…I cannot see any evidence of her medical notes of documented clinical
findings consistent with labral pathology that pre-existed this May 5,
2009 motor vehicle accident”.

[46]        
Dr. Brian Day is a highly qualified orthopaedic surgeon who
pioneered labral surgery.  Based on his review of the clinical records he
“could not find any direct correlation between her apparent ongoing disability
with respect to the left hip joint and the motor vehicle accident of May 5,
2009”.  Following examination he continued of this view, noting that “There
appears to be a significant history of recurrent hip problems that preceded the
accident of May 5, 2009” and “There are also documented clinical findings
consistent with labral pathology that pre-existed the motor vehicle accident”. 
It was his opinion that the 2009 Accident was not the cause of the labral hip
tear although he conceded in cross-examination that it may have aggravated a
pre-existing injury.

[47]        
The Plaintiff says that her experts’ opinions are to be preferred
because her experts took a more detailed history, at least when confronted with
the causation issue.  That history revealed facts that allow them to pinpoint
the cause of the labral tear as the 2009 Accident.  The Plaintiff says that Dr. Day
produced his opinion without seeing her or taking a history, and when he did
examine Ms. Foster he did so inevitably trammelled by his previous conclusion.

[48]        
The Defendants say that the opinion of Dr. Day is to be preferred
over the other expert medical witnesses because he formed his opinion only
after having done a more thorough review of the clinical records.  Dr. Sam
is Ms. Foster’s long time general practitioner and more an advocate than
an independent expert.  Drs. O’Connor and Gilbart ignored the evidence of
previous hip pathology and accepted unreliable accounts from Ms. Foster
concerning her history, which might be summarized as “when I said ‘hip’ I
really meant ‘lower back’”.

C.             
Discussion and Analysis

[49]        
The causation issue concerns the most serious of Ms. Foster’s
injuries, the labral tear to her left hip.  The clinical records show that Ms. Foster
had previously reported pain in her hips to her family physician, Dr. Sam
and to her chiropractor, Dr. Pollard.

[50]        
Dr. Sam testified that, prior to the 2009 Accident Ms. Foster’s
prior hip complaints involved pain in the posterior aspect of the hip and in
the area of the low back.  Following the 2009 Accident Ms. Foster’s
complaints were of pain in the anterior aspect of the hip and in the groin.

[51]        
Ms. Foster’s reports eventually led Dr. Sam to suspect a
labral tear in the left hip such that she ordered an MRI, which was done on
February 1, 2010.  The results of the MRI eventually crystallized in the
diagnosis of a labral tear, a diagnosis with which all the medical practitioners
agree.

[52]        
While I accept that Dr. Sam is Ms. Foster’s long-time general
practitioner, and for that reason a sympathetic listener, I do not consider her
testimony before the Court to have been tainted by this fact.  I also accept
the evidence that complaints about non-specific pain in the hips can actually
reference injury to the back.

[53]        
The previous complaints of hip pain date to late 2005 and early 2006.  At
that time Ms. Foster was a fitness instructor.  There is no reference to
hip pain following 2006, except in the record of Dr. Lim in November 2008
following his examination of Ms. Foster consequent to the Workplace
Incident.  That was not a matter of Ms. Foster presenting with a complaint
of anterior hip pain, but rather Dr. Lim eliciting a report of hip pain on
him performing interior rotation of the joint.  Despite this report, Dr. Lim
did not diagnose any injury to the hip.

[54]        
Ms. Foster was back to work within a few days of the Workplace
Incident and there were no further reports of hip pain until after the 2009
Accident.  When Ms. Foster returned to work in November 2008 she reported
that she was able to perform all of the duties of an LPN as she had prior to
the Workplace Incident.  She continued to perform those duties until the 2009
Accident, and for several weeks thereafter.  The employment records bear this
out.

[55]        
These facts led to the opinions of Dr. O’Connor and
Dr. Gilbart that the 2009 Accident, not the Workplace Incident, caused the
labral tear in the left hip.  Dr. Gilbart said that “Although she clearly
did have some intermittent documentation of low back and ‘hip’ pain, I cannot
see any evidence of her medical notes of documented clinical findings
consistent with labral tear pathology that pre-existed this May 5, 2009
motor vehicle accident”.

[56]        
Concerning the mechanism of injury, Dr. O’Connor considered Ms. Foster’s
reported leg position in the vehicle at the time of the 2009 Accident. 
Although the Defendant emphasized the nature of the collision as a factor for
consideration, it has not been opined that such collision was incapable of
creating the injury.

[57]        
On balance I accept the opinion evidence of Drs. O’Connor, Gilbart, and
Sam over that of Dr. Day.  On the evidence before me I find that, on a
balance of probabilities, the 2009 Accident caused the labral tear in
Ms. Foster’s left hip.  I accept the opinions of the physicians that the
historical evidence of what Ms. Foster was able to do both before and
after the 2009 Accident, in the context of the factual matrix of this case,
proves on a balance of probabilities that the labral tear occurred at the time
of that accident.

[58]        
Concerning her other injuries there is no opinion evidence contrary to
that of Dr. Sam, Dr. O’Connor and Dr. Gilbart.  If I were to
accept the Defendants submission that these injuries were overuse injuries that
pre-existed the accidents, it would be based on speculation rather than
evidence.  I accept the evidence of the Plaintiff’s experts that the right
shoulder, neck and back injuries were caused or contributed to by the 2007
Accident.  Ms. Foster experienced improvement in those injuries leading up
to the 2009 Accident.  Those injuries were also aggravated by the 2009
Accident.

[59]        
With respect to the knee injury, Ms. Foster reported a knee injury
to Dr. Lim following the Workplace Incident.  Dr. Lim noted that the
knee was stable and had full range of motion.  Thereafter Ms. Foster did
not report any further left knee pain to her treatment providers until after the
2009 Accident.  In my opinion her left knee injury is as a result of the 2009
Accident.

VI.           
Non-Pecuniary Damages

[60]        
The rationale for non-pecuniary damages is articulated by the Supreme
Court of Canada in Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229 at p. 262.  There the Court acknowledged that restitution is
impossible and thus “[m]oney is awarded because it will serve a useful function
in making up for what has been lost in the only way possible” since what
has been lost cannot be directly replaced.

[61]        
In Lindal v. Lindal, [1981] 2 S.C.R. 629 the Court emphasized at
p. 637 the need to appreciate the individual’s loss, eschewing a ‘tariff’
and noting that the need for solace will not necessarily correlate with the
seriousness of the injury, a matter emphasized by McLachlin J., as she
then was in Milina v. Bartsch, (1985), 49 B.C.L.R. (2d) 33.  The need
for a particularized award was emphasized by the Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34.  However, a plaintiff’s stoicism should not
penalize or minimize consideration of the injury: Giang v. Clayton, Liang
and Zheng, 2005 BCCA 54 at paras. 54-55. 

[62]        
The parties are significantly apart on non-pecuniary damages.  The
Plaintiff argues that non-pecuniary damages should be set at $100,000, relying
on Grant v. Gonella, 2008 BCSC 1454 ($70,000), Bove v. Lauritzen,
2009 BCSC 1698 ($70,000), Gosal v. Singh, 2009 BCSC 1471
($95,000), MacKenzie v. Rogalasky, 2011 BCSC 54 ($100,000), Fox
v. Danis, 2005 BCSC 102 ($100,000), Gosselin v. Neal, 2010 BCSC 456
($100,000), Foran v. Nguyen et. al., 2006 BCSC 605 ($90,000), and Crane
v. Lee, 2011 BCSC 898 ($100,000).

[63]        
The Defendants say that non-pecuniary damages should be in the $40,000
to $60,000 range, distinguishing the cases cited by the Plaintiff and relying
on cases such as Pavlovic v. Shields and Pavlovic v. Dickinson, 2009
BCSC 345 ($40,000), Wilkinson v. Whitlock, 2011 BCSC 1781
($40,000), Fortin v. Lowden, 2009 BCSC 1123 ($50,000), Grant v.
Gonella, 2008 BCSC 1454 ($70,000).

[64]        
In this case the Plaintiff suffered soft tissue injuries to the neck,
back, knee, and shoulder and a labral tear to her left hip.  Prior to the 2007
Accidents she led a physically demanding lifestyle working as a fitness
instructor, and had a high level of physical fitness.  She was, however,
transitioning out of this employment at the time of the 2007 Accident, by
training for career as an LPN that would not involve fitness as part of her daily
employment activity.

[65]        
Ms. Foster was not entirely asymptomatic from her 2005 Accident at
the time of the 2007 Accident.  It is also apparent that she has had ongoing
back issues that required periodic chiropractic treatment unrelated to the 2007
Accident and 2009 Accident.  She also had an earlier knee injury that required
surgery.  These factors affect the “original position” to which Ms. Foster
must be returned by the award of damages.

[66]        
I find it unlikely that Ms. Foster will have surgery to the labral
tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose
opinions are to be preferred over that of Dr. Sam.  Dr. O’Connor and Dr. Gilbart
have more specialized experience in this area than Dr. Sam, who is a
general family physician.  While Ms. Foster experiences pain during her physically
demanding employment activities, she is able to take extended (one week or
longer) motorcycle trips without any impairment that is apparent to her
companions.  The videotape evidence shows a cautious rider but not one
prevented from enjoying this pursuit.

[67]        
Ms. Foster has suffered emotionally during periods where she has
not been able to work.  However, her emotional state has not prevented her from
taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the
East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs
and the Tri-cities area.  Moreover, her emotional issues have had a variety of
causes, including relationship issues which are admittedly unrelated to the two
accidents.

[68]        
I have reviewed the cases provided by counsel.  There are aspects of
those cases that are helpful, but there are also differences that prevent
direct application.  The Defendants’ cases generally involve less seriously
injured persons.  Many of the cases submitted by the Plaintiff involve a
prognosis for chronic daily pain.  That is not the prognosis for Ms. Foster. 
In the circumstances, I award $75,000 in non-pecuniary damages.

VII.          
Loss of Capital Asset / Earning Capacity

[69]        
Ms. Foster claims damages for future loss of earning capacity in
the amount of $500,000.  It is argued that the medical evidence shows Ms. Foster
has a permanent partial disability and “cannot sustain her present occupation”
such that it is anticipated that she “will have to go to part time hours, she
will be seeking light work whenever it is available, and she will not be able
to work overtime in any meaningful/longterm capacity”.

[70]        
On the other hand the Defendants say that Ms. Foster’s recent record
of employment shows that she is able to work in excess of 40 hours a week for
successive weeks, including more than 50 or 60 hours a week on a
“not-infrequent basis”.  Since she returned to work in May 2011, she has not
had any time loss owing to the issues she says were due to the accidents.  According
to the Defendants, Ms. Foster either has not shown any diminishment in
earning capacity, or if she has shown a substantial likelihood of sustaining
pecuniary loss, it is minimal at best.

[71]        
The Plaintiff’s estimate of loss of earning capacity involves certain
assumptions, including working to age 70 and sustaining overtime work over much
of that period.  Neither of those assumptions, in my opinion, has been proven
on a balance of probabilities as a reasonable assumption to apply to Ms. Foster
but for the accident.  That is, nothing in her past work history in my view supports
these assumptions over the long term, nor is there statistical evidence that
suggests these are reasonable assumptions to make for LPNs generally.

[72]        
Regarding capacity, in Dr. O’Connor’s report of April 7, 2011
he opined that “At present, I do think that is capable of returning to work at
her previous position in a graduated return to work fashion” although he also
said that it is “too early to determine if she will be able to remain a durable
employee at either part-time or potentially full-time intensity”.  Although
there would be a challenge for her to maintain her physical condition and work
he noted that “…she has made such good progress with the active strength and
conditioning, there is quite a good chance that she will be able to cope with
this with the passage of time”.

[73]        
In fact, since Ms. Foster returned to work in May 2011, she has
worked the hours set out in Schedule 1(although she also testified that such a
schedule was not sustainable).

[74]        
This recent history certainly supports the proposition that Ms. Foster
is capable of performing the duties of an LPN with extra hours over a period of
4-5 months, including work on night and evening shifts.  I note that the work
on evening shifts involves some of the heavier duties of an LPN.  Ms. Foster
says that she did this motivated in part by financial pressures.  She also says
this is not sustainable for a combination of reasons.

[75]        
The legal approach to considering such claims is aptly described in the
decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at
paras. 25-32, which I summarize as follows: 

(1)      A
plaintiff must first prove there is a real and substantial possibility of a
future event leading to an income loss before the Court will embark on an
assessment of the loss;

(2)      A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation;

(3)      A
plaintiff may be able to prove that there is a substantial possibility of a
future income loss despite having returned to his or her employment;

(4)      An
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss;

(5)      It
is not the loss of earnings but rather the loss of earning capacity for which
compensation must be made;

(6)      If
the plaintiff discharges the burden of proof, then there must be quantification
of that loss;

(7)      Two
available methods of quantifying the loss are (a) an earnings approach or (b) a
capital asset approach;

(8)      An
earnings approach will be more useful when the loss is more easily measurable;

(9)      The
capital asset approach will be more useful when the loss is not easily
measurable.

[76]        
In my opinion the Plaintiff has met the initial burden of proof.  That
is, she has shown, based on her evidence and the medical opinions, that there
is a real and substantial possibility of a future event leading to an income
loss. 

[77]        
The Plaintiff, although doing the job presently, is still impaired from
performing the most difficult physical tasks of an LPN, which probably go
beyond the de facto job description.  She is at an increased risk for injury.  Such
an injury could entail time missed from work or even a period of retraining in
some other area of the health care industry.

[78]        
Robert Carson, an economist, testified on behalf of the Plaintiff.  Part
of his evidence included what he called a “multiplier table”, which could be
used to calculate the present value of any pattern of future earnings or loss
of earnings.  The multipliers were calculated using an annual discount rate of
2.5%, the rate required by s. 1(a) of the Law and Equity Regulation,
B.C. Reg. 352/81.  Madam Justice Deschamps explained it this way in Townsend
v. Kroppmanns, [2004] 1 S.C.R. 315, 2004 SCC 10 at para. 5:

Compensation aims at restoring
the victim to the position that person would have been in had no loss been
incurred.  Compensation is awarded in the form of a lump sum payment.  The
dollar amount received for future costs is actually lower than projected costs
because it is assumed that the amount paid will be invested and will earn
income before being used for future needs.  The same reasoning applies for loss
of future income.  The victim is awarded a lower amount for income than that
person would have actually earned at a future date.  In other words, the
amounts are discounted to reflect the present value of the expenses incurred or
the income earned at a future date, taking inflation adjustments into
consideration.  The purpose of the discount rate is thus to insure that victims
will be fully compensated but that defendants will not be called on to overpay.

[79]        
Although this methodology might be useful in some cases I do not find it
helpful here in determining this loss.  What I am considering are future or
hypothetical possibilities.  The method requires that I forecast losses into
the future work period.  There is simply no evidence before me that is capable
of supporting the specific projections which would allow me to instantiate the
variables in this method.

[80]        
This methodology, in another context, is known as a “discounted cash
flow”.  Instead of calculating the present value of future losses, the method
is applied to calculate a present value of a stream of income.  The method,
while appearing mathematically precise, invites one to be captive of the method
instead of exercising the broad judgment necessary for determination of such
losses: see, for example, in another context the decision in Cypress Anvil
Mining Corp. v. Dickson (1986), 8 B.C.L.R. (2d) 145 (C.A.).

[81]        
In British Columbia, it has long been established that the Court’s task
is to assess damages, not to calculate them according to some mathematical
formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12
B.C.L.R. (3d) 428.  The Court of Appeal for British Columbia explained
the method of assessing loss of future earning capacity in Rosvold v. Dunlop,
2001 BCCA 1 at paras. 10-11:

[10]      The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128
(S.C.) (Q.L.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.)
(Q.L.).  Guidance as to what factors may be relevant can be found in Parypa
v. Wickware, supra, at para. 31; Kwei v. Boisclair (1991),
60 B.C.L.R. (2d) 126 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353 (S.C.) per Finch J. They include:

[1]     whether the plaintiff has been rendered less
capable overall from earning income from all types of employment;

[2]     whether the plaintiff is less marketable or
attractive as an employee to potential employers;

[3]     whether 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]     whether the plaintiff is less valuable to
himself as a person capable of earning income in a competitive labour market.

[11]      The task of the court
is to assess damages, not to calculate them according to some mathematical
formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995),
12 B.C.L.R. (3d) 248 (C.A.).  Once impairment of a plaintiff’s earning capacity
as a capital asset has been established, that impairment must be valued.  The
valuation may involve a comparison of the likely future of the plaintiff if the
accident had not happened with the plaintiff’s likely future after the accident
has happened.  As a starting point, a trial judge may determine the present
value of the difference between the amounts earned under those two scenarios.  But
if this is done, it is not to be the end of the inquiry: Ryder (Guardian ad
litem of) v. Jubbal, [1995] B.C.J. No. 644 (C.A.) (Q.L.); Parypa v.
Wickware, supra.  The overall fairness and reasonableness of the award must
be considered taking into account all the evidence.

[82]        
Mr. Carson estimated the current average full time earnings of LPNs
working in public heath care facilities to be $49,900.  Ms. Foster’s LPN
program took one year to complete although it is now a two-year program.  Were
some future event to require her to retrain she could lose up to twice that
amount of annual income.

[83]        
There is some cost associated with retraining, however, these funds
would be expended in the future, and these losses would occur in the future, so
some discounting would apply.  There are, of course, other contingencies that
might cut short her working life, as well as positive contingencies.  In the
circumstances, in my view an award of $125,000 is appropriate in this case.

VIII.        
Past Loss of income

[84]        
Ms. Foster claims past loss of income in the amount of
approximately $118,000.  This is based on her working full time plus an
additional 10-15 hours a week.  Past income loss is calculated from May 5,
2009.  The hours worked leading up to the accident of May 5, 2009 are set
out in Schedule 2.

[85]        
Based on this information, and the other income figures in evidence I am
not prepared to base past income loss on full-time work and doing an additional
10-15 hours per week.  Although Ms. Foster said that absent her injuries
she would have worked full time hours plus taken as much overtime as available,
in my view the best indicator of that is past work history, rather than stated
intentions.  Of course, the availability of overtime work is something outside
the control of the employee.

[86]        
Nor do I think it fair to base past wage loss on Ms. Foster’s most
recent work history.  She indicated that she was in need of funds and worked
exceptionally hard in the months leading up to trial.  She also indicated that
such a level of work was not sustainable.  I do not think it appropriate to
project that period backwards to calculate past wage loss.

[87]        
As I see it, the correct approach in this case is to base the award on Ms. Foster’s
previous work history, but reduce it by the period of time she was off work
during elective surgery, and for an amount based on her history of unrelated
work absences.

[88]        
In total, Ms. Foster was off work for between one and a half and
two years, including accident-related sick days following her return to work. 
She should be compensated for those days, as well as for the loss of her
employer-paid pension contributions, which are not paid while an employee is on
long term disability leave.  That amount must be reduced for any time Ms. Foster
would not have worked due to her unrelated surgery and occasional sick days.

[89]        
In my opinion, her gross past income loss is $65,500, and I award damages
based on this amount.

IX.           
Cost of Future Care

[90]        
An award for cost of future care is a pecuniary claim for those expenses
that may reasonably be expected to be expended in returning the injured party
to the position she would have been in if she had not sustained the injury: Andrews
at p. 241.  The standard of proof is the balance of probabilities: Athey
at para. 28.

[91]        
In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1
S.C.R. 205, the Court explained the method of assessing damages for future care
at paras. 21-22:

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

The resulting award may be
said to reflect the reasonable or normal expectations of what the injured
person will require. Jane Stapleton, “The Normal Expectancies Measure in
Tort Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58,
that the tort measure of compensatory damages may be described as the “‘normal
expectancies’ measure”, a term which “more clearly describes the aim of awards
of compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached … had it not been for the tort”. The
measure is objective, based on the evidence. This method produces a result
fair to both the claimant and the defendant.  The claimant receives damages for
future losses, as best they can be ascertained.  The defendant is required to
compensate for those losses.  To award less than what may reasonably be
expected to be required is to give the plaintiff too little and unfairly
advantage the defendant.  To award more is to give the plaintiff a windfall and
require the defendant to pay more than is fair.

[92]        
Because the overriding principle is returning the Plaintiff to the
position she would be in had the injury not occurred, it is important that the
Plaintiff not be overcompensated by an award of future care costs that includes
costs that the Plaintiff would have incurred despite the accident.  Accordingly,
in cases like this one where the plaintiff will continue to lead basically be
same life had she not been injured, but with the aid of additional assistance
and physical facilities, Courts will total the cost of the extra
assistance and facilities that the Plaintiff will require: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33, 30 A.C.W.S. (2d) 257at para. 187.  As I see
it, this means that if a Plaintiff would have chosen to expend funds on
recommended care in any event, those costs should not be included in the award
for future care.

[93]        
The parties are again far apart on the cost of future care.  The
Plaintiff claims $36,301 in future care costs, although that initial position
was revised during final argument.  In final argument, the Plaintiff conceded
that the cost of future care award should not include the cost of a gym pass
because Ms. Foster would likely have maintained a gym pass despite the
accidents.  I accept that concession, and will not include the gym pass in the
award for cost of future care.

[94]        
The Plaintiff primarily relies on the recommendations made in an expert
report prepared by Mr. Russell McNeill, an occupational therapist and work
evaluator.

[95]        
The Defendants takes issue with many of Mr. McNeill’s
recommendations, and suggest an award of $2,500.

[96]        
Mr. McNeill recommends that Ms. Foster attend a gym to perform
pool-based exercises.  He recommends six ninety-minute sessions with a
kinesiologist to review and outline a light program for her.  He advises that
this will result in a total cost of $540.00 plus mileage, travel time and
applicable taxes.  The Defendants point out that Ms. Foster indicated that
she does not like the water and would not be likely to participate in a
water-based program.  If the evidence shows that a Plaintiff would not accept
or use recommended care, that is a relevant consideration in determining the
amount of a future care award: O’Connell v. Yung, 2012 BCCA 57 at
para. 60.  Based on Ms. Foster’s own evidence, she would not be
likely to use a pool-based fitness program if one was designed for her.  Accordingly,
I decline to award Ms. Foster the cost of kinesiology sessions.

[97]        
Dr. O’Connor opined that Ms. Foster will require intermittent
use of Tylenol or Advil.  Mr. McNeill agreed, and estimated the cost at
$18.00 per month.  The Defendants point out that Ms. Foster did not
produce any receipts for Advil in her list of special damages.  Accordingly, in
the Defendants submission, payment for the cost of Advil is not justified.

[98]        
Although Ms. Foster did not produce receipts I accept that she had
some of this expense.  On the other hand, a physically active person, such as
she was, and is, is likely to require use of this medication in any event.  I
would allow one half of this expense.

[99]        
Mr. McNeill recommends pain management devices such as hot and cold
gel packs and a hot medicated patch to provide temporary relief or to reduce
neck and back pain at a yearly cost of $145.60 per year.  Mr. McNeill also
recommends several devices to assist Ms. Foster with her pain while
sleeping: an aerus memory foam topper at a cost of $429.99 to be replaced every
three years; a contoured cervical pillow at a cost of $89.95 to be replaced
every year; a full body pillow at a cost of $157.85 to be replaced every three
years; and a back wedge at a cost of $119.45 to be replaced every 5 years.

[100]     The
Defendants point out that Mr. McNeill admitted that each of these devices
could be purchased at a much more reasonable cost from other suppliers.  They
also say that no physician has recommended these items, and that the Plaintiff
may have been able to seek funding for these devices through her disability
carrier.  I decline to award any of these amounts.

[101]     Mr. McNeill
also recommends a back support for home and vehicle use at a cost of $144.99 to
be replaced every five years.  I accept this item as a reasonable expense.

[102]     Mr. McNeill
recommends that Ms. Foster purchase a portable TENS machine at a cost of
$186.99, to be replaced every 10 years.  The Tens machine would include that
additional cost of replacing TENS electrodes at a cost of $19.04 per year.  He
also opines that Ms. Foster would need six physiotherapy sessions to
instruct her how to use the machine, for a total cost of $360.00.  The
Defendants say that this is an extravagant recommendation, and point out that
none of Ms. Foster’s treating physicians have recommended this.  They
further say that the physiotherapy treatments to address the TENS machine are
“overkill”.

[103]     Ms. Foster
also claims for ongoing physiotherapy.  In my view this claim overlaps with the
claim for a continuation of physiotherapy.

[104]     Ms. Foster
asks for continuation of physiotherapy on an intermittent basis as recommended
by Dr. Gilbart and Dr. O’Connor.  She specifically requests 12
sessions per year at $60.00 per session, for a cost of about $720.00 per year
for the balance of her working life.  The Defendants say that Ms. Foster
has already had a considerable amount of therapy.  I allow this amount, based
on a working life to age 65, and decline to award the costs associated with the
purchase of a TENS machine

[105]     Ms. Foster
also requests homemaking expenses under the future care costs.  She explains
that her daughter has helped with many heavier household tasks.  She says that
in the future her daughter will no longer live with her, and Ms. Foster
will require some assistance.  Mr. McNeill recommends some homemaking
assistive devices that will assist her in the future: a telescopic handy scrub,
at a one-time cost of $20.95; a telescopic handy scrub replacement head at a
cost of $15.95, to be replaced every year; a long handle toilet brush at a cost
of $14.95 to be replaced every two years; and a feather light vacuum at a cost
of $59.99 to be replaced every three years.  The Defendants concede that these
are appropriate expenses.  I therefore accept that these are appropriate future
care expenses.

[106]     Finally,
it is possible that Ms. Foster will require surgery to the labral tear of
her left hip.  If that circumstances arises, then Mr. McNeill recommends
the following: three physiotherapy sessions per week for sixteen weeks, for a
total cost of $2,880.00; six sessions with a kinesiologist to create an
exercise therapy program at a cost of $540.00, plus mileage and travel time; four
hours of homemaking assistance per week for four months for a cost of
$1,547.00; a bathtub seat or shower char at a one-time cost of $129.99; a hand
held shower at a one-time cost of $73.25; a bathtub grab bar at a one-time cost
of $98.95; a shower grab bar at a one-time cost of $229.00;  non-slip bath mat
at a one-time cost of $189.99; and a Hip Kit at a one-time cost of $123.85.  The
Defendants say that since future surgery is unlikely, any recommendations
concerning care after such surgery should not be given any weight.

[107]     The proper
approach to awarding damages for hypothetical future events is set out in Athey. 
There, Mr. Justice Major explained that damages should be adjusted for
contingencies.  Hypothetical events need not be proven on the balance of
probabilities.  Instead, so long as they are real and substantial possibilities
and not mere speculation, they are given weight according to their relative
likelihood.  Accordingly, if there is a 30% chance that a plaintiff will
require surgery, then the damages award will be increased by 30% of the costs
associated with that surgery: Athey at para. 27.

[108]     In this
case, Dr. O’Connor opined that there is a 10-20% chance that the Plaintiff
will require surgery to repair the labral tear to her left hip.  Accordingly, I
will award her 15% of the future care costs associated with that surgery.

[109]     However, I
am not satisfied that all of the costs outlined by Mr. McNeill are
reasonable.  For example, Mr. McNeill opined that Mr. Foster would
require a non-slip bath mat at a cost of $189.99.  In my view, this is an
unreasonably high cost for a bath mat.  I will accordingly reduce the cost of
these items to values that I believe to be more reasonable.

[110]     Unlike the
quantification of loss of earning capacity, these ongoing costs are matters
that are appropriate to apply the methodology suggested by Mr. Carson.  I
have evidence before me of the precise type of care that Ms. Foster may
require in the future.  The “multiplier tables” can be used to reduce the
overall amount of this award to account for contingent future events, as well
as discount the probable cost to a present value.  The amounts are set out in
Schedule 3, below.  In my opinion, Ms. Foster is entitled to $19,336.09
for the cost of her future care.

X.             
Special Damages

[111]     Consistent
with the governing precept that an individual is to be restored to the position
she would have been in had an accident not occurred (Milina at 78), the
Plaintiff is entitled to recover for those reasonable expenses she incurred
before trial arising out of the Defendants’ negligence.

[112]     The
Plaintiff claims $40,418.71 in special damages.  She originally also included
in her claim transportation costs.  However, the Plaintiff conceded that the cost
of transportation to and from appointments should be offset against the cost of
not traveling to work, a concession that I accept.  The amount of $40,418.71
does not include the transportation costs.

[113]     The
Defendants accept a number of the Plaintiffs claims for special damages.  Specifically,
they agree to pay the costs of 18 physiotherapy sessions with Shannon Blackburn
at a cost of $270.00; as well as the cost of the MRIs.

[114]     The
Defendants also agree to compensate the Plaintiff for those benefits that she
paid herself while on leave following the second accident, but asks that those
benefits be pro-rated to account for the fact that the Plaintiff should have
returned to work sooner.  I have already rejected the argument that the
Plaintiff ought to have returned to work sooner to mitigate her loss.  Accordingly,
I decline to pro-rate the costs of the self-paid benefits as requested by the
Defendants.

[115]     The
Defendants say that a number of other expenses were not reasonably incurred or
attributable to either accident.

[116]     The
Plaintiff also claims for expenses related to chiropractic visits with Westgate
Wellness.  The Defendants say that they should not be responsible for the fees
associated with many of those visits because the Plaintiff has a history of
attending physiotherapy on a regular basis, and would have attended
chiropractic sessions despite the accident.  The Defendants also say that some
of the physiotherapy visits should be attributed to the Plaintiff commencing
her employment with Ridge Meadows Hospital.  Accordingly, the Defendants submit
that they should not be liable for half to two-thirds of the 26 visits in 2008;
the three visits in 2009 that pre-date the second accident; half the remaining
visits in 2009; and all visits in 2010 or 2011.

[117]     I accept
that the Plaintiff would have attended chiropractic sessions at a “maintenance”
level- or one session per month- if the accidents had not occurred.  As such, I
will reduce the number of chiropractic sessions for which the defendants are
liable by one per month since the First Accident.

[118]     The
Plaintiff claims expenses arising out of regular massage therapy treatments
between November 2007 and December 2007, then again in February, March, May and
June 2008, and sporadically thereafter until November 2009.  The Defendants
submit that only the first ten sessions, between November 2007 and December 12,
2007, are appropriate out of pocket expenses.

[119]     The
Defendants say that the latter sessions are not attributable to the accidents.  In
that respect, the Defendants rely on the notations in the chart from the latter
visits indicating that the Plaintiff reported stress and the Workplace Incident
to her massage therapist.  The Defendants also rely on the long gap between the
second accident and any massage therapy treatments for the proposition that the
visits subsequent to the Second Accident cannot be attributed to that event.

[120]     Ms. Foster
did not have a history of attending massage therapy as she did for chiropractic
visits.  She sought a variety of treatments at various times in the course
of her recovery.  It should not be held against her that she only attended
massage therapy sporadically as her condition improved.  That said, she
did report other incidents to her massage therapist that may have related to
her decision to attend treatments.  I would therefore allow the treatments
between November 2007 and January 2008, and then half of the treatments
thereafter.

[121]     The
Plaintiff claims expenses for pilates sessions commencing in March 2009.  The
Defendants dispute those expenses on the basis that they are not therapeutic
treatments provided by a registered professional, relying on Raguin v.
Insurance Corporation of British Columbia, 2011 BCCA 482.  The
Defendants also say that the Plaintiff only began attending the sessions nearly
a year and a half after they were initially recommended by Dr. Sam, which
they say supports the therapy is not properly attributed to the accidents.

[122]     In Raguin,
the Court considered whether massage therapy was a treatment that ICBC was
obliged to pay for under s. 88(1) of the Insurance (Motor Vehicle) Act
Regulation, B.C. Reg. 447/83.  That provision provides that ICBC is obliged
to pay reasonable expenses for physical therapy, amongst other types of
therapy.  The gravamen of that decision is that massage is included in physical
therapy for the purposes of the Insurance (Motor Vehicle) Act Regulation. 
Of course, claims for special damages are not as limited as Part 7 “no-fault” benefits
provided pursuant to statute and an insurance contract.  Notably, however, in
reaching their decision, the Court said at para. 59:

In this case, the respondents’
doctor recommended massage therapy as part of the infant plaintiffs’
recovery.  There is no suggestion that the recommended treatment was
unnecessary or provided by someone other than a registered massage therapist,
or that the expense was unreasonable.

[123]     In this
case, pilates was recommended by Dr. Sam as part of the Plaintiff’s
recovery following the first accident.  Ms. Foster declined to heed Dr. Sam’s
advice for some period of time.  However, she did begin the program because of
her discussions with Dr. Sam in an attempt to improve her physical
condition following the accidents.  I am therefore satisfied that the cost of
the classes was reasonably incurred.

[124]     The
Plaintiff claims special damages for the expense of receiving naturopathic
treatments at Kotopski Physiotherapist Corporation/naturopathic including B12
injections, herbal laxatives and energy formulas.  The Defendants say that
these treatments cannot be reasonably attributed to accidents.  However, I note
that Ms. Foster attended Kotopski Physiotherapy at the suggestion of her
physician.  I accept that these treatments assisted her rehabilitation and
would allow this expense.

[125]     The
Plaintiff additionally seeks compensation for the cost of her student loans. 
In her submission, had the accidents not occurred, she would have been able to
work at Fraser Canyon Hospital and had her loans forgiven.  The Defendants
oppose those expenses, saying that the Plaintiff is still physically capable of
returning to work at Fraser Canyon Hospital.  They also point out that the
Plaintiff had not applied for the loan forgiveness program at the time of the
Second Accident.  Further, in their submission, the Plaintiff has received a
taxable benefit arising out of the payment of interest on the loans.

[126]     I agree
with the Defendants.  The loss of ability to apply for a student loan
forgiveness program is too remote of a possibility to qualify as special damages. 
The loans are not a reasonable expense incurred before trial as a result of the
Plaintiffs’ injuries.  Moreover, it is not clear to me that Ms. Foster
might not still qualify for such loan forgiveness.

[127]     Special
damages are also sought for payments made by Great West Life.  These include
physical therapy sessions with Momentum Therapeutics, which the defendants
agree to pay since causation is proven for the labral tear.

[128]     The fees
paid by Great West Life also include user fees paid to Kotopski Physiotherapy,
which the Defendants dispute because Dr. Sam should not have recommended
the therapy in light of the fact that Mr. Kotopski was not, in fact, doing
a study on labral tears.  I have already explained why I believe that it was
reasonable for Ms. Foster to attend that therapy, and the Defendants will
be liable to Great West Life for the associated costs.

[129]      Great West
Life also paid benefits to Maureen Chapman for counselling services.  The
Defendants oppose paying for those expenses because the Plaintiff discussed
matters with Ms. Chapman that are unrelated to either accident.  While
this is true, I also accept that the accidents caused Ms. Foster some mental
and emotional distress for which some counselling was necessary.  Accordingly,
the Defendants will be liable for one half of the fees associated with the
counselling sessions.

[130]     The
Defendant did not address the benefits the Plaintiff paid herself during her
leave.  I accept that those are reasonable out-of-pocket expenses.

[131]     A summary
of those fees is included in Schedule 4, below.  In total, the Plaintiff is
entitled to $17,563.09 in special damages.

XI.           
Summary

[132]     The
Defendants are liable for all of Ms. Foster’s injuries.  In summary, in my
opinion, the Plaintiff has established that she is entitled to the following
damages:

XII.          
Costs

[133]     Unless
counsel wish to bring to my attention some matters of which I am unaware, the
Plaintiff is entitled to her costs on a party and party basis.

“The
Honourable Mr. Justice Savage”

Schedule
1

Schedule 2

Schedule 3

Schedule 4