IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120518

Docket: M104249

Registry:
Vancouver

Between:

Lindsay Guthrie

Plaintiff

And

Deo Narayan and
Krista Elaine Kobitzsch

Defendants

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

[1]          
On February 9, 2009, the plaintiff, Lindsay Guthrie, was travelling as
the front seat passenger in a vehicle driven by her friend Krista Kobitzsch. Their
vehicle was rear ended by a van driven by the defendant, Deo Narayan. Mr. Narayan
has admitted liability for the accident. The action against Ms. Kobitzsch
has been discontinued. The issues at trial are limited to assessing the damages
to which Ms. Guthrie is entitled.

OVERVIEW

[2]          
Ms. Guthrie is presently 26 years old. She graduated from high school
in 2003. At the time of the accident she worked as a members’ service
representative for the Community Savings Credit Union (“CSCU”). She commenced
employment at CSCU in 2006.

[3]          
At the trial the plaintiff led evidence from Ms. Guthrie, her
father, her brother, two long time girlfriends, a friend of Ms. Guthrie’s
parents, and two CSCU employees. These witnesses all testified concerning Ms. Guthrie’s
life before and after the accident and the impact her injuries have had on her
life. In addition, the plaintiff called Dr. Cordoni, her family doctor
since birth, Dr. Badii, and Mr. Bruce Hunt who prepared a Functional
Capacity Evaluation. The defendant called no witnesses.

[4]          
The evidence of the plaintiff concerning the impact of the injuries on
her life was generally corroborated by her family, friends and co-workers. I
find that the plaintiff and the lay witnesses called on her behalf are all
credible. They testified in a forthright and honest manner and their
credibility was not seriously challenged by the defendant. What emerges from
the testimony of the various witnesses is a body of evidence that supports the
plaintiff’s claims of injury and continued pain and suffering. Based on that
evidence I make the following findings of fact.

FINDINGS OF FACT

A. Pre-Accident

[5]          
Prior to the accident, Ms. Guthrie was positive and upbeat. She was
socially active and participated in many sports. She enjoyed such diverse
activities as hiking, kick-boxing, waterskiing and tubing. She had gone ziplining
and bungee jumping. Through most of her youth she had played soccer and
softball. When living at home with her parents, she did household chores such
as cleaning and vacuuming and assisted her mother on occasion in carrying
grocery bags. At the time of the accident, she was in general good health and
subject to no physical limitations.

[6]          
Ms. Guthrie commenced employment at the CSCU in June 2006. Her
duties included meeting and dealing with customers, keyboarding, stamping
cheques and deposit slips, carrying a heavy cash book and loading and unloading
the ATM machine. Much of her work required repetitive motions. She was
physically able to carry out all her job duties.

[7]          
The CSCU is a relatively small credit union. There are limited
opportunities for advancement. At the time of the accident Ms. Guthrie was
not certain it would be her life career.

B. The Accident and Aftermath

[8]          
The accident occurred on February 9, 2009. Ms. Guthrie was a
passenger in a car driven by Ms. Kobitzsch. Their vehicle was at a dead
stop as it waited to merge with other traffic. The vehicle driven by Mr. Narayan
struck them from behind. The impact was significant. Both Ms. Guthrie and Ms. Kobitzsch
were wearing sunglasses and the accident propelled their sunglasses into the
backseat of the vehicle. The vehicle itself was moved forward several feet. Both
vehicles suffered significant damage.

[9]          
Following the accident, Ms. Guthrie and Ms. Kobitzsch were
somewhat shaken up. Ms. Guthrie had a significant headache. Her brother
took them both to the hospital where they were x-rayed and released shortly
thereafter.

[10]       
When Ms. Guthrie awoke the day following the accident she could not
lift her head. She was in great pain. She could not sit up. She called her
father who drove her to Dr. Cordoni’s office.

[11]       
Dr. Cordoni observed that she was very tearful. She was tender over
the paracervical muscles bilaterally and over the anterior neck muscles. The
range of motion of her neck was painful in extension. Dr. Cordoni
prescribed an analgesic and a muscle relaxant, gave her a note for massage
therapy and provided her with a note for work.

[12]       
In the first two months post-accident, Ms. Guthrie was in
significant pain. She was constantly heating and icing her back. Most of her
pain was on the right side of her neck and upper back.

[13]       
In the weeks following the accident, Ms. Guthrie attended
physiotherapy and massage therapy five days a week. In August 2009, her
physiotherapist recommended that she commence intramuscular stimulation (“IMS”)
treatments. She undertook IMS treatments on a weekly basis between August 2009
and January 2010 and then every second week until July 2010. Those treatments
require the insertion of needles. Ms. Guthrie found the treatments very
painful but continued with them in the hope that they would help. She stopped
the IMS treatments after a year because the limited relief they provided did
not outweigh the pain of the treatments. The treatments did help with her
headaches, but they did not provide lasting relief with regard to the pain in
her neck and shoulders.

[14]       
In February 2011, Ms. Guthrie attended six exercise sessions with Karp
Rehabilitation. Those sessions provided some improvement.

[15]       
Ms. Guthrie’s injuries were such that she could not immediately
return to work. An initial attempt to return to work in March 2009, approximately
one month post-accident, was unsuccessful. She commenced a graduated return to
work approximately two months following the accident.

C. Present Condition

[16]       
Ms. Guthrie still has pain on a daily basis. The pain is
concentrated on the right side of her neck and shoulders. The pain can vary in
intensity. The pain is less in the morning but can worsen over the course of
the day and can be particularly difficult at the end of a long workday.

[17]       
Ms. Guthrie has resumed fulltime employment at the CSCU. Her
employer has made various accommodations to assist her at work. The
accommodations include an ergonomic chair and an elevated keyboard. Ms. Guthrie
can no longer carry out all of her job requirements. For example, she finds it
too difficult to carry the cash box. She finds work difficult because of her
ongoing pain. It is more difficult in the afternoon and she is usually sore by
the end of her workday.

[18]       
Ms. Guthrie can no longer participate in numerous activities in
which she was involved prior to the accident such as softball, waterskiing,
tubing, or kick-boxing. She has tried bocce, horseshoes and bowling but all
have caused her considerable pain. While she can still go on limited hikes, she
cannot participate in hikes that require her to carry a backpack. From time to
time she has had to decline certain social opportunities because she is physically
incapable of participating. She can no longer do certain household tasks such
as vacuuming, cleaning bathtubs, carrying groceries or garbage. She finds sitting
for extended times uncomfortable. Her injuries have affected her relations with
her boyfriend. Simple cuddling can be painful.

[19]       
Ms. Guthrie has attempted to cope with her injuries as best she can.
She tries to stay positive but is discouraged that she is not better. She is
upset that she can no longer partake in all the sports and social activities
that she could participate in prior to the accident. She finds her limited
recovery difficult and frustrating. Her friends and co-workers note that she is
no longer as positive and upbeat as she was prior to the accident. Although Ms. Guthrie
seldom complains, they have observed that she appears to often be in pain.

[20]       
Ms. Guthrie does continue to work out on a regular basis. Her
workouts, however, are limited to lower body movements. Exercises involving the
use of her arms cause her difficulties.

EXPERT  EVIDENCE

A. Dr. Cordoni

[21]       
Dr. Cordoni has been Ms. Guthrie’s family doctor her entire
life. Ms. Guthrie first saw her concerning her injuries the day after the
accident. Thereafter, there have been many additional visits.

[22]       
Dr. Cordoni notes that since the accident Ms. Guthrie has had
persistent localized pain in the right side of her neck, right trapezius and
right shoulder blade area. Her condition has not improved in spite of
physiotherapy, IMS treatments and massage treatments. She has developed some
depressive symptoms with tearfulness, a sense of frustration and being somewhat
overwhelmed with the concept of chronic pain. Dr. Cordoni is of the
opinion that Ms. Guthrie is suffering from chronic myofascial pain. Although
she observed that Ms. Guthrie has made some improvements, she continues to
have neck pain on a chronic basis, primarily on the ride side with discomfort with
rotary movements. Given the length of time she has remained symptomatic, Dr. Cordoni
is of the opinion Ms. Guthrie is likely to have continued symptoms and her
condition will likely continue to affect her recreational activities. She does
note that Ms. Guthrie appears to have obtained some symptomatic
improvement with massage. She recommends that Ms. Guthrie should continue
to exercise on a regular basis and that another session with Karp
Rehabilitation may be of assistance.

B. Dr. Badii

[23]       
Dr. Badii is a specialist in rheumatology and spine medicine. He prepared
a medical/legal report after seeing Ms. Guthrie in his office on November
15, 2010. He has reviewed her medical history including Dr. Cordoni’s
reports. In his initial report dated March 14, 2011, Dr. Badii concluded
that the motor vehicle accident was directly responsible for Ms. Guthrie’s
injuries leading to her neck pain, upper back pain and headaches. He noted that
although her symptoms improved initially, by November 2010 they had reached a
plateau. In his subsequent report of February 15, 2012, Dr. Badii concluded
that Ms. Guthrie had reached a point of maximal medical improvement and he
did not expect any significant change in her condition. While he did not expect
her condition to deteriorate, he believes that the limitations she was presently
experiencing would likely continue into the indefinite future.

C. Mr. Hunt

[24]       
In January 2012, Mr. Hunt conducted a physical capacity and work
tolerance assessment. Mr. Hunt detailed his findings in his report of
January 26, 2012. Mr. Hunt noted that the occupational demands of Ms. Guthrie’s
present employment are within her current functional level and tolerance. He
noted that sustained sitting, prolonged desktop reaching and computer data
entry aggravate her neck, shoulder complex and low back pain symptoms. He found
that her employment opportunities are limited due to the injuries she suffered
in the accident. He found that she is presently suited to sedentary employment
with occasional outward unsupported reaching and infrequent bending. She will
require accommodations to work with regard to positions that require prolonged
sitting and computer data entry.

[25]       
Mr. Hunt found that Ms. Guthrie is not presently suited to any
occupations that require sustained and repetitive unsupported reaching,
particularly below the waist and above the shoulders and recurrent bending. This
would include all labour intensive occupations, light duty cleaning,
cashiering, warehouse/material handling, gardening/landscaping, nursing, dental
assistant/hygienist and assembling occupations.

[26]       
Mr. Hunt testified at the trial. The findings set out in his report
were not seriously challenged.

DISCUSSION

A.
Overview

[27]       
I accept the testimony of Dr. Cordoni and Dr. Badii. I find
that Ms. Guthrie sustained soft tissue injuries to the neck and back as a
result of the motor vehicle accident. These soft tissue injuries have led to
chronic neck and shoulder pain. I find that it is unlikely that there will be
any significant change in her condition for the foreseeable future.

[28]       
I further find that Ms. Guthrie has aggressively attempted to deal
with her injuries. She has followed the medical recommendations made to her. She
has attended physiotherapy and message therapy. She took a series of painful
IMS treatments. She works out regularly. She has done all she can to assist in
her recovery.

[29]       
Unfortunately, however, Ms. Guthrie’s injuries have not resolved.
They continue to seriously impact her daily life and will likely do so for the
foreseeable future. The injuries have affected all facets of her life. She
needs accommodation at work, cannot partake in some sports she formerly
enjoyed, must avoid certain social events and even has difficulty when she
attempts to cuddle with her boyfriend. She is no longer suited for many
occupations and requires accommodation to carry out many of the occupations
that are still available to her.

[30]       
In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s
Facebook page concerning her trip to Las Vegas. Those pictures are of limited
usefulness. Ms. Guthrie is seeking compensation for what she has lost, not
what she can still do. The fact that she can spend a weekend with her friends
in Las Vegas does not gainsay her evidence that she continues to suffer from
the aftermath of the accident. She should not be punished for trying to get on
with her life and enjoying it the best she can regardless of the limitations
imposed on her as result of the accident.

[31]       
Ms. Guthrie seeks non-pecuniary and special damages and awards for past
wage loss, loss of earning capacity and cost of future care. The parties have
agreed on special damages and past wage loss. The remaining heads of damage are
contested.

B.
Non-Pecuniary Damages

[32]       
In Simmavong v. Haddock, 2012 BCSC 473 at paras. 65-68, Greyell J. summarized the
purpose of non-pecuniary damages, the principles underlying such awards and the
factors to be considered in making such awards:

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

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

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

[Citations omitted.]

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

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

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

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

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

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

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

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

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

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

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and

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

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

[33]       
In this case, Ms. Guthrie submits that $75,000 would be an
appropriate and just award for her ongoing pain and suffering. She refers
specifically to Mayenburg v. Lu, 2009 BCSC 1308 (general damages
$50,000); Kardum v. Asadi-Moghadam, 2011 BCSC 1566 (general damages
$70,000); Trites v. Penner, 2010 BCSC 882 (general damages $75,000); and
Schnare v. Roberts, 2009 BCSC 397 (general damages $85,000).

[34]       
The defendant suggests a more modest award. He cites Olianka v.
Spagnol, 2011 BCSC 1013 (general damages $30,000); Basi v. Buttar,
2010 BCSC 9 (general damages $30,000); and Sandher v. Hogg, 2010 BCSC
1152 (general damages $40,000).

[35]       
While the subject cases are of general assistance and provide a
guideline as to the range of damages awarded in cases with some similarities to
the case at bar, each case must be decided on its own facts. Of primary
importance in this case is the age of the plaintiff, the manner in which the
injuries have impacted on her life, and the medical evidence which suggests
that any future improvement is unlikely. I note in the cases cited by the
defendant the prognosis for the plaintiffs was much more favourable than that
concerning Ms. Guthrie. I award $65,000 in non-pecuniary damages.

C. Past
Wage Loss

[36]       
As a result of the accident, the plaintiff took two months off work and
then entered a graduated return to work program, before returning to fulltime
duties in May 2009. The parties have agreed that Ms. Guthrie’s net past
wage loss is $4,258.62.

D.
Special Damages

[37]       
The parties have agreed that the plaintiff has incurred special damages
of $11,323.93.

E. Loss
of Earning Capacity

[38]       
Ms. Guthrie seeks an award under this head of $150,000. The
defendant submits that the plaintiff is not entitled to any award as she has
not proven there is a real potential for a loss of future income. Alternatively,
he submits that if an award is to be made under this head of damage, it should
be nominal.

[39]       
The parties are in general agreement concerning the principles that
govern awards under this head. They were recently summarized by Walker J. in Ruscheinski
v. Biln, 2011 BCSC 1263 at paras. 114-119:

[114]    For an award under this head of damages to be made, Ms. Ruscheinski
must demonstrate a “substantial possibility that lost capacity will result in
pecuniary loss”: Perren v. Lalari, 2010 BCCA 140, at paras. 4, 7,
21, 31, and 32, 137 D.L.R. (4th) 729; Steward v. Berezan, 2007 BCCA 150
at para. 17, 64 B.C.L.R. (4th) 152. A future or hypothetical possibility
will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation: Perren at para. 30.

[115]    If the plaintiff discharges the burden of proof,
then he or she may prove quantification of that loss by an earnings approach or
by a capital asset approach: Perren at para. 32; Chang v. Feng,
2008 BCSC 49 at para. 76, 55 C.C.L.T. (3d) 203.

[116]    Garson J.A. wrote in Perren at para. 11
that where the loss cannot be measured in a pecuniary way, “the correct
approach [is] to consider the factors described by Finch J., as he then was, in
Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. In Brown, he said
at para. 8:

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.

[117]    In para. 12 of Perren, Garson J.A. said:

These cases, Steenblok, Brown,
and Kwei, illustrate the two (both correct) approaches to the assessment
of future loss of earning capacity. One is what was later called by Finch J.A.
in Pallos the ‘real possibility’ approach. Such an approach may be
appropriate where a demonstrated pecuniary loss is quantifiable in a measurable
way; however, even where the loss is assessable in a measurable way (as it was
in Steenblok), it remains a loss of capacity that is being compensated.
The other approach is more appropriate where the loss, through proven, is not
measurable in a pecuniary way. An obvious example of the Brown approach
is a young person whose career path is uncertain. In my view, the cases that
follow do not alter these basic propositions I have mentioned. Nor do I
consider that these cases illustrate an inconsistency in the jurisprudence on
the question of proof of future loss of earning capacity.

[118]    A useful summary of the principles governing the
determination and measure of an entitlement of an award for loss of income
earning capacity is set out at para. 32 in Perren:

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

[Emphasis
in original]

[119]    In Sinnott v. Boggs, 2007 BCCA 267, 69
B.C.L.R. (4th) 276, Mackenzie J.A. made these remarks at paras. 16-17 in a
case involving a 16-year-old female who was awarded $30,000:

[16]      In the case at bar, Ms. Sinnott
is a young person who has not yet established a career and has no settled
pattern of employment. In such circumstances, quantifying a loss is more at
large. Southin J.A. commented on this distinction in Stafford

[42]      That there can be a case
in which a plaintiff is so established in a profession that there is no
reasonable possibility of his pursuing, whether by choice or necessity, a
different one is obvious. For instance, on the one hand, if a judge of this
Court were to be permanently injured to the extent that he or she could not
longer do physical, in contradistinction to mental, labour, he or she would
have no claim for impairment of earning capacity because the trier of fact
gazing into the crystal ball would not see any possibility that the judge would
ever abandon the law for physical labour, assuming that immediately before the
accident the judge was capable of physical labour. But, on the other hand, if a
plaintiff is young and has no trade or profession, the trier of fact gazing
into the crystal ball might well consider whether the impairment of physical
ability will so limit his future employment opportunities that he will suffer a
loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380
(C.A.).

[43]      There is, if I may use
the word, a continuum from obviously no impairment of earning capacity from a
permanent physical impairment, no matter how serious the impairment, to a very
large potential loss which must be based on all the circumstances of the
particular plaintiff.

[17]      I agree with those observations. Ms. Sinnott
is in a category of those who are young and without a settled line of work. The
trial judge has found that Ms. Sinnott faces limitations on her ability to
work competitively in jobs that were previously open to her. In my view, that
finding is an adequate foundation for the trial judge’s award.

[40]       
At the time of the accident, the plaintiff was 23 years old. She had
worked at the CSCU for less than three years. She had not reached any decision
as to whether or not it would be her permanent employment. As she stated in
evidence, when she was 16 years old she never dreamed that she would be working
at a financial institution. At the time of the accident she was considering
other possible career options.

[41]       
CSCU is a relatively small credit union. While Ms. Guthrie’s salary
has increased since the accident, she is now at her maximum earning level for
her present position. There are limited opportunities for advancement.

[42]       
As a result of the accident, Ms. Guthrie has been rendered less
capable overall from earning an income from all types of employment. She is
less marketable or attractive as an employee to potential employers and has
lost the ability to take advantage of all job opportunities which might
otherwise have been open to her had she not been injured. She is less valuable
to herself as a person capable of earning income in a competitive labour market.

[43]       
Ms. Guthrie has been able to succeed at her present job due in no
small part to her employer’s willingness to make accommodations for her. The
need for such accommodations, however, will undoubtedly make her less
attractive to other prospective employers. Ms. Guthrie faces limitations
on her ability to work competitively in jobs in her present field of employment
and there are many jobs outside that field which she can no longer work in at
all.

[44]       
Given her present circumstances, it is likely that Ms. Guthrie will
remain at the CSCU. Her ability to find other work in the banking field is
adversely impacted because of the accommodations any potential employer would
have to make for her. This case is, in my view, distinguishable from Perren
v. Lalari, 2010 BCCA 140 where the Court found there was no substantial
possibility that the plaintiff would suffer a loss of future earnings as a
result of her injury.

[45]       
That is not the case here. I find that there is a real and substantial
possibility that as a result of the accident Ms. Guthrie will suffer a
loss of future earnings. While Ms. Guthrie has returned to her past
employment, her injuries have precluded her from many opportunities that might
otherwise have been available that may have led to increased future earnings.

[46]       
It is of course impossible to determine exactly what path Ms. Guthrie
would have taken absent the accident. The award cannot be made with any
mathematical precision. I would award $75,000 for loss of future earning
capacity.

F. Cost
of Future Care

[47]       
Ms. Guthrie seeks an award of $10,000 for cost of future care. In
support of this claim, she relies on the evidence of Dr. Cordoni who
recommended a four to six week session at the Karp Rehabilitation Program,
ongoing exercise and ongoing yoga classes. Dr. Badii, in his report of
February 15, 2012, recommends ongoing yoga classes, an exercise program and a
gym membership and confirms the recommendations made in his earlier report of
ongoing pain medications and physiotherapy or kinesiology sessions up to 12
times annually. Mr. Hunt, in his report, recommended weekly massage,
osteopathic therapy, 8 to 12 weeks of physical therapy or sessions with a
kinesiologist.

[48]       
I note to date that the plaintiff has spent approximately $8,000
attending various therapies. The evidence indicates that she will not get
better in the foreseeable future. The medical experts have indicated that
continued treatment will alleviate symptoms and allow her to maintain her
maximal medical improvement.

[49]       
Given Ms. Guthrie’s age, and the findings that her medical
condition is chronic and will likely continue indefinitely, the suggested award
of $10,000 is more than reasonable. I award $10,000 for the cost of future
care.

SUMMARY

[50]       
In summary therefore, I make the following awards:

COSTS

[51]       
Unless there are matters of which I am not aware, the plaintiff is
entitled to her costs. If either party seeks a different award with regard to
costs, they should file written submissions within 30 days of the date of these
reasons. Any responsive submission should be filed within 14 days thereafter.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice Richard
B.T. Goepel