IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120620

Docket: M081853

Registry: Vancouver

Between:

Sabrina Suzanne
Wong

Plaintiff

And

Carla Frances
Hemmings and Dwight Hemmings

Defendants

Docket: M101643

Registry: Vancouver

Between:

Sabrina Suzanne
Wong

Plaintiff

And

Sven Friedlaender
and Ideal Laundry & Linen Supply Service (1980) Ltd.

Defendants

Before:
The Honourable Mr. Justice Fitch

Reasons for Judgment

A. Introduction

[1]            
The plaintiff, Sabrina Wong, is a 36 year old single mother. She left
high school in 1993, two credits short of obtaining her diploma. In 1996, she
gave birth to a daughter, Brooke, who is now 15 years of age. The plaintiff has
worked her entire adult life in the restaurant industry as a server. For the
past 11 years, she has worked as a server at the Fairmont Vancouver Airport
Hotel.

[2]            
Ms. Wong was involved in two motor vehicle accidents. The first
accident occurred on December 13, 2006; the second on December 19, 2008. The
defendants in both actions admit liability. With the consent of counsel, these
two actions were tried together. Vicarious liability is admitted in both
actions. The most serious of the injuries suffered by the plaintiff in the
first accident were to her left shoulder and left knee. Those injuries had not
fully healed by December, 2008 and were aggravated by the second accident.

[3]            
The plaintiff seeks non-pecuniary and special damages as well as
monetary awards for past income loss, cost of future care and loss of future
earning capacity. Although the parties are some distance apart in quantifying
the damages award that should be given in this case under each of the
above-noted heads, the most contentious issue is the plaintiff’s entitlement to
an award for loss of future earning capacity. The plaintiff contends that as a
consequence of her injuries she will not be able to continue the repetitive,
weight bearing activities required of her as a server. Given her limited
education and narrow skill set, she submits that her residual earning capacity
is much lower than what she is making now. The defendants submit that the
plaintiff has not proven a real and substantial possibility of a future income
loss. Alternatively, should this Court find that the plaintiff’s income will
likely be impacted at some future point as a result the injuries she sustained,
the defendants submit that the plaintiff has a substantial residual earning
capacity and that any award for loss of future income should be far less than
what the plaintiff seeks.

B. The Plaintiff’s Work History and Current Work Environment

[4]            
The plaintiff began working as a restaurant server when she turned 19
years of age. She would often hold down two jobs to make ends meet. She was
hired by the Fairmont Vancouver Airport Hotel in August, 2001. She works as a server
in a restaurant called Globe@YVR but also does occasional shifts in an adjacent
lounge called Jetside Bar. She describes her employment at the Fairmont as the
“best job she ever had”. She testified that it is a wonderful workplace and
feels very lucky to be there. She currently earns $15.00 per hour, plus tips,
and has an attractive benefits package. She testified that working for the
Fairmont chain is a “point of pride” for her because it is a highly regarded
company. She described herself as being “excellent at her job”. Her
self-assessment would appear to be accurate. She has been selected as the
hotel’s employee of the month on three occasions and was chosen Fairmont
Vancouver Airport Hotel’s employee of the year in 2002, only 16 months after
commencing employment with them.

[5]            
Fadi Eid, the Fairmont’s food and beverage manager at the hotel,
testified that the plaintiff is one of three restaurant servers who work the
early morning to mid-afternoon shift. He described the workplace as non-stop.
The Globe@YVR is the only dining room in the hotel. It seats 130 people. The
restaurant does not use bussers. The serving staff are required to serve
guests, clean and reset tables and replenish their work stations with cutlery,
glasses, cups and saucers. Mr. Eid testified that servers work 7 to 8 hour
shifts and get a 30 minute break per shift. On busy days, servers can work up
to 5 1/2 hours without a break. They are expected to have their hands full at
all times. Mr. Eid testified that there is an expression in the
hospitality industry – “empty hands, empty head” – that describes the
multi-tasking nature of restaurant service work.

[6]            
Mr. Eid worked as a server before being promoted into management.
He still helps out in the restaurant a couple of times a week for 2 – 3 hours.
A number of photographs were introduced at trial depicting the plaintiff
engaging in routine work activities. Mr. Eid testified that servers lift
coffee urns from the kitchen to the front of the house that weigh about 50 lbs.
Servers continuously carry racks of glasses that weigh about 20 lbs. and rolled
up cutlery and napkins in bins weighing about 40-45 lbs. from the kitchen to
their work stations on the floor. Servers generally carry full pitchers of
water, juice and/or coffee, one in each hand, as they move through the dining
room. Entrees are served three at a time, with the server cradling two plates
in one arm and holding the third with their other hand. The plaintiff is
right-hand dominant. Her practice is to use her left arm to carry the majority
of the weight and serve with her right hand. From his own experience, Mr. Eid
testified that the weight of three full serving plates is significant.
Similarly, clearing dirty tables can involve carrying 30-35 lbs. of dishware
and utensils from the dining room to the kitchen. Behind the scenes, dirty
glasses and cups are stacked in racks for washing that are above shoulder
level. The servers also lift milk crates weighing about 40 lbs. from the floor
to refrigerators in the kitchen.

[7]            
Much of the work of a server involves constant, weight bearing
activities at shoulder level or above with arms extended away from the body,
lifting and pouring.

[8]            
One of the attractions of restaurant serving work lies in the tips
servers make. Mr. Eid testified that there is a general reluctance on the
part of servers to move into management positions because managers make less
money and work longer hours.

[9]            
Mr. Eid testified that the plaintiff is one of the Fairmont’s best
servers. She is hard-working, committed and popular with guests.

C. The Plaintiff’s Activities Prior to the First Accident

[10]        
The plaintiff testified that before the first accident she was always
“incredibly active”. She played basketball and hockey in high school and, in
her teenage years, developed a long-standing interest in running. She has used,
and continues to use, running as mental and physical therapy. For the
plaintiff, running has become a way of keeping fit and processing her thoughts
in a way that promotes good mental health. In addition, the plaintiff
participated in swimming, baseball, snowboarding, kayaking and volleyball. She
did so less after Brooke was born in 1996 but returned to a more active
lifestyle after Brooke turned four years of age. She did so because she enjoys
physical activity and because she wanted to set a good example for her
daughter. Prior to the first accident, she would run 5-10 kilometres on her
days off and participate in the occasional 10 kilometre race to support a
charitable cause. Brooke Wong testified that when her mother is not running she
is less calm, less patient and appears to be “more stressed out”.

[11]        
The plaintiff’s lifelong friend, Wendy Masse, confirmed that, prior to
the first accident, Ms. Wong engaged in a variety of physical activities
including running, swimming, tennis, bocce and badminton. She described the
plaintiff as very healthy and extremely physically fit. She testified that when
the plaintiff was not running she tended to become depressed and sad. She
described the plaintiff as being “freakishly strong for a small girl” and eager
to engage in roughhousing activities.

D. The First Accident – December 13, 2006

[12]        
The first accident occurred on December 13, 2006 at about 5:40 p.m. The
plaintiff was driving southbound on No. 3 Road in Richmond at about 50
kilometres/hour. She was wearing her seatbelt. Brooke was a front seat
passenger. They were returning home from a Christmas shopping excursion and had
presents, including a chopping block, as well as groceries, in the backseat.
Shortly after proceeding through a green light at the intersection of No. 3
Road and Blundell, a northbound travelling vehicle being operated by the
defendant, Dwight Hemmings, turned left directly in front of her in order to
pull into a service station. The plaintiff braked but was unable to avoid the
significant collision that ensued.

[13]        
Just before impact, the plaintiff had her left hand on the steering
wheel and reached over with her right hand to try to protect her daughter. From
photographs taken of the plaintiff’s 1991 Dodge Shadow after the accident, it
would appear that the front, left corner of her vehicle took the brunt of the
impact. The plaintiff recalls being thrown forward and to the left. She felt
the impact on her left side and remembers something hitting both of her knees.
The force of the collision caused the chopping block to be propelled forward
like a projectile from the back seat. It struck the plaintiff on her head
causing a laceration which bled heavily.

[14]        
The plaintiff was unable to exit the vehicle on her own after the
accident. Emergency personnel applied a neck brace and removed her from the
vehicle on a board. She was transferred to Richmond General Hospital for
treatment. Her head wound was sutured and she was released from hospital later
that evening. She testified that she was in severe pain when she got home and
just wanted to lie down. Her head, left shoulder and neck, left hip and both of
her knees were hurting. Brooke recalls her mother crying and holding her head
on the drive home from the hospital. She described her mother as being “spaced
out” over the next few days. She stayed in bed or rested on the couch. Brooke
testified that her mother complained of pain in her head, left shoulder, lower
left thigh and left knee in the days following the accident. Photographs of the
plaintiff taken 4 or 5 days after the accident depict significant bruising to
both of her knees and to her left hip where the seatbelt buckle would be
fastened.

[15]        
The plaintiff’s vehicle was written off as a result of the accident.

[16]        
The plaintiff was off work from the date of the accident to January 10,
2007, at which time she was medically approved to return to work on a gradual basis.
She recommenced her full-time duties on January 19, 2007. The plaintiff testified
that she could not afford to be off work, particularly during the busy and
lucrative Christmas season, and was happy to be back at work making money
again. The plaintiff’s physician also recalls her being anxious to return to
work.

E. Medical Treatment Received by the Plaintiff Following the First Accident

[17]        
The plaintiff went to see her personal physician, Dr. Thompson, the
day after the accident and on numerous occasions thereafter complaining of
severe headaches, sleeplessness and pain in her left shoulder, neck and left
knee. She was prescribed an analgesic (Tylenol 3) and an anti-inflammatory
drug. The plaintiff testified that she found it difficult to tolerate these
medications as they caused gastrointestinal irritation and made her feel
nauseous. In addition, the codeine had a constipating effect on her. She did
not continue to exercise the way she did prior to the first accident. She
eventually lost between 15 and 20 lbs. The plaintiff was referred for
physiotherapy treatments which she has fairly consistently received since the
date of the first accident. Between treatments she would roll her shoulder and
back on a tennis ball in an effort to release a trigger point in the
musculature of her back, particularly in the area of her upper trapezius muscles.
In addition, other treatments, which included various physical modalities like
instruction in core strengthening exercises and stretching, topical
medications, acupuncture and massage therapy, were recommended to and/or tried
by the plaintiff. The plaintiff testified that these interventions provided
only short term relief.

[18]        
Following her return to work in January 2007, the plaintiff testified
that her ongoing symptoms were intensified by the physical demands of her job.

[19]        
She testified that in the two years between the first and second
accidents she “lived on” Advil, taking as many as 21 pills a week and between 2
and 4 just to get herself through a shift. She would sometimes take Tylenol 3
with Advil. Although her headaches gradually tapered off, the plaintiff
continued to experience what she described as awful migraine-like headaches on
a weekly basis up until the time of the second accident. The left side of her
neck, her left shoulder and shoulder blade, the bicep of her left arm and her
left knee caused her a great deal of pain, particularly when engaging in the
repetitive, load bearing and lifting activities her work requires. Her pain was
exacerbated by elevating her left arm when it was bearing weight. She described
the demands of serving up to 300 guests per shift when the hotel was hosting
tour groups going on cruises. With the assistance of her physiotherapist, the
plaintiff tried shoulder taping and a shoulder brace. She testified that the
taping helped, not as a treatment but as a band-aid solution to alleviate her
pain. Over time, the tape cause so much skin irritation that she abandoned this
strategy. She also reported that prolonged standing, twisting and pivoting on
her left knee caused her pain at work. Jogging, which she continued to do after
both accidents, also aggravated her knee pain. The plaintiff testified that the
benefits she derives from running, both mentally and physically, outweigh the
downsides of continuing with her regime.

[20]        
As the plaintiff’s symptoms continued despite conservative treatment
interventions, she was referred by her counsel to Dr. Feldman, a
specialist in physical medicine and rehabilitation (a physiatrist) in July
2008. By report dated August 11, 2008 Dr. Feldman concluded that the
plaintiff suffered soft tissue injuries in the accident, the most significant
of which were mild winging of the left scapula and an injury to the left
peroneal nerve that runs along the anterior aspect of the knee where the tibia
and fibula meet. “Winging” of the scapula means that the scapula does not sit
properly on the chest wall. The condition can be attributable to a musculature
injury or dysfunction. Dr. Feldman was “quite satisfied” when he assessed
the plaintiff that her soft tissue injuries were healing and that a full recovery
would take place over time. His prognosis was summarized in the following
passage:

Relative to possible long-term
symptoms and restrictions, I do not anticipate these occurring. She is working
full time now and is functioning in a way which continues to be competitive and
appropriate. Her present employment should not be adversely affected by her
recovering injuries. Similarly, I would not be concerned about any other
employment which she might want to undertake. She is already performing
recreational activity and should be encouraged to continue to do this without
concern that she might re-injure herself or cause any long term symptoms or
restrictions. The same can be said for her activities of daily living.

[21]        
The plaintiff’s physician, Dr. Thompson, concluded sometime in the
fall of 2008 that the plaintiff’s recovery had plateaued. As there was no
reported improvement in her pain, Dr. Thompson determined that additional
investigation should be undertaken. I should add here that Dr. Thompson’s
conclusion that further investigation was required was not based entirely on
the plaintiff’s self-reporting. She testified that in December 2008 there was
objective evidence of reduced flexion in the plaintiff’s left shoulder and neck
area. In the result, Dr. Thompson referred the plaintiff to Dr. Anton,
also a physiatrist, for further assessment.

F. The Second Accident – December 19, 2008

[22]        
The plaintiff was involved in a second motor vehicle accident on
December 19, 2008 before she met with Dr. Anton. On this occasion, the
plaintiff, who was driving alone, was rear-ended at the intersection of Burrard
St. and West 16^th Avenue in Vancouver by a GMC truck being operated
by the defendant, Sven Friedlaender. At the time of the accident, the GMC truck
was owned by the defendant, Ideal Laundry & Linen Supply Service (1980)
Ltd. (“Ideal Laundry”) and was being operated by Mr Friedlaender with the
consent of Ideal Laundry.

[23]        
The plaintiff testified that she did not anticipate the impact and was
thrown back, then forward and then back again in the driver’s seat. She said
that it felt like being hit from behind by someone coming at full speed.
Photographs of the plaintiff’s vehicle taken after the second accident depict
scuffing and denting of the rear bumper of the Ford Focus she was then driving.
The plaintiff is unable to recall the cost of repairs associated with this
accident. She testified that the second accident exacerbated her anxiety about
driving and aggravated all of her injuries, including those sustained in the
areas of her left shoulder, neck and shoulder blade, her trapezius muscles
extending from the base of her skull along her shoulders and into her back and
her left knee. The pain caused by the second accident eventually settled back
down to the level of discomfort she was experiencing after the first accident.

[24]        
The plaintiff testified that she retreated into herself after the second
accident. She rarely socialized and did very little other than work and pursue
treatment for her injuries. She testified that she was in debt as a result of
borrowing money following the first accident and simply could not afford to
take time off work during the Christmas season. She continued to take significant
doses of Advil to assist in getting through her shifts.

G. Behavioural Changes in the Plaintiff Following the First and Second
Accidents

[25]        
The plaintiff’s evidence that her behaviour changed after the two
accidents is supported by the evidence of Wendy Masse. Ms. Masse testified
that after the first accident plaintiff participated less in recreational
sports and shied away from the type of roughhousing behaviour she engaged in
before the first accident. She described the plaintiff as quieter, more
reserved, less social and less effervescent than she was before the first
accident happened. After the second accident, she observed the plaintiff
sitting and holding her shoulder without appearing to realize that she was
doing so.

[26]        
Similarly, Brooke Wong testified that after returning to work following
the first accident her mother would come home from a shift crying and holding
her shoulder. She would take more frequent naps. She described her mother as
being less patient, moodier, grumpier and consistently more tired than she was
before the first accident. Brooke testified that she can see her mother’s
discomfort on her face and knows when her shoulder is bothering her because,
“she is my mom.”

H. Medical Assessments and Treatment Following the Second Accident

[27]        
Dr. Anton and Dr. Regan, who eventually performed arthroscopic
surgery on the plaintiff’s left shoulder in October 2010, prepared extensive
medico-legal reports documenting their opinions respecting the cause and nature
of the plaintiff’s injuries, her treatment and her future prospects for
recovery. Both gave depositions prior to trial. The audio/video recordings of
those depositions were tendered before me, with the consent of counsel, at
trial.

[28]        
Dr. Anton first saw the plaintiff on February 3, 2009. He is a
clinical professor in the Faculty of Medicine at the University of British
Columbia and an associate member of the Department of Occupational Science and
Occupational Therapy at UBC. He is also Coordinator of Clinical Research at the
G.F. Strong Rehabilitation Center.

[29]        
Dr. Anton treated the plaintiff for or a period of close to three
years, last seeing her on December 1, 2011, a few months before the
commencement of the trial. In total, Dr. Anton saw the plaintiff on
approximately nine occasions.

[30]        
Dr. Anton became aware of Dr. Feldman’s earlier report prior
to his deposition. When asked whether he agreed with Dr. Feldman’s August
2008 opinion that the plaintiff was working full-time and functioning in a
competitive way, Dr. Anton declined to express an opinion on whether the
plaintiff was working competitively as he did not regard that issue as falling
within the area of expertise of a physiatrist. He did, however, express the
view that the while the plaintiff was functioning, she was doing so with pain.

[31]        
Dr. Anton concluded that the plaintiff sustained a number of
injuries in the first accident, the most significant of which were: (1)
injuries to soft tissue structures in the left shoulder girdle, including
probable injuries to the rotator cuff and/or tendon of the long head of the
biceps; (2) an injury to the left knee joint which was causing irritation of
the common peroneal nerve and, according to the plaintiff, some numbness over
the left outer leg below the knee; and (3) myofascial pain relating to soft
tissue injuries in the neck and upper back, most likely involving the trapezius
muscles. The plaintiff’s most significant concern was in relation to the pain
she was experiencing in her left shoulder.

[32]        
Dr. Anton concluded that the second motor vehicle accident also
likely caused further soft tissue injuries to the shoulder girdle, neck and
upper back which were less significant than those caused by the first accident.

[33]        
He testified that the plaintiff’s most significant problem after the
accidents was in relation to her left shoulder. In particular, she went on to
develop what he described as clear cut signs of shoulder impingement syndrome.
Shoulder impingement syndrome refers to a spectrum of disorders associated with
mechanical impingement of the tendons of the rotator cuff. This condition was
aggravated by the physical demands required of the plaintiff in her work as a
server. Dr. Anton explained in his deposition that carrying trays or bins
with arms extended puts stress on the front of the shoulder including the
biceps muscle and the biceps tendon. Rotating an arm while it is extended and
bearing weight puts a load on the shoulder and, specifically, on the rotator
cuff. Pouring coffee was cited as an excellent example of the type of motion
that will cause pain in relation to the kind of injuries sustained by the
plaintiff. Dr. Anton concluded that the plaintiff’s injuries were also
interfering with her ability to get restful sleep.

[34]        
In February, 2009 Dr. Anton administered an anaesthetic and
corticosteroid injection targeting the rotator cuff of the plaintiff’s left
shoulder. The plaintiff reported initial benefits that wore off after about a
week.

[35]        
Because of her poor response to conservative treatment interventions, Dr. Anton
eventually referred the plaintiff to Dr. Regan for consideration of
surgical intervention.

[36]        
Dr. Regan saw the plaintiff in June, 2009. Dr. Regan is an
Associate Professor of Orthopedic Surgery at the University of British
Columbia, Associate Head of the Department of Orthopaedics at Vancouver
Hospital (UBC Site), and Head of the Division of Upper Extremity Surgery in the
Department of Orthopaedics. His practice is devoted to disorders of the upper
extremity and knee.

[37]        
On examination, Dr. Regan noted that the plaintiff had minimal
winging of the left scapula and that her shoulders were dropped forward on the
left versus the right. In his deposition, Dr. Regan testified that when an
individual has a shoulder problem they will try to protect it subconsciously
and their arm becomes drooped on the side that is injured.

[38]        
Dr. Regan’s diagnosis was not significantly different from that
previously made by Dr. Anton. Dr. Regan diagnosed: (1) myofascial
pain in the left paraspinal and left trapezius and levitator scapular muscles;
(2) calcific tendinitis plus subacromial bursa in the left shoulder; (3) a
contusion of the left peroneal nerve (resolving); and (4) proximal
tibular/fibula joint irritability. He concluded that the plaintiff’s injuries were
the direct consequence of the first motor vehicle accident and that they were
temporarily aggravated following the second accident. In his deposition, Dr. Regan
was shown photographs of bruising to the plaintiff’s left knee taken after the
first accident. He confirmed that the bruising was right over where the
peroneal nerve runs from the back of the knee to the lateral, anterior part of
the knee joint.

[39]        
Dr. Regan’s opinion with respect to plaintiff’s prognosis is
instructive. He concluded as follows:

She is stalled in her recovery. This is in part due to the
nature of her injury and the fact that she is expected to use her upper
extremity for serving, which is a constant aggravation of these complaints… I
don’t believe further conservative care will help her at this point in time.
She is not only bothered at work, but she is bothered for normal activities
[such] as a heavy sensation in her arm, [and] sleep disruption and she cannot
perform her normal activities recreationally that she would enjoy other than
[for] this injury.

I believe an arthroscopic review of her shoulder, subacromial
decompression and careful review of her biceps tendon is warranted. In
addition, removal of the calcific focus in the anterior aspect of the
supraspinatus tendon should be done.

This outpatient procedure would be accompanied by a 3 to 4
month rehabilitation phase before she would realize full functional benefit of
the surgery.

I believe this is the only procedure that will help her upper
extremity.

If nothing is done, I am afraid she is going to be left
with a permanent partial disability that may limit her ability to continue in
the workforce given that her job demands almost 100% normal shoulder function
which she currently does not have at the present time. With surgery and
rehabilitation, there is a significant chance of her being helped but one
cannot predict an outcome until she has achieved full functional return
following successful completion of surgery.

With respect to her left lower extremity, she likely has irritable
synovitis of her proximal tib/fib joint with irritation of the peroneal nerve.
The first line of treatment for this would be a cortisone injection into the
proximal tib/fib joint to see how this affects her pain pattern. This could be
done under an anesthetic at the same time as her shoulder surgery. I do not
believe surgical intervention is warranted, however, if she develops more
numbness into the peroneal nerve distribution which she has had in the past, as
evidenced by Dr. Feldman’s Medical Legal Report, then consideration could
be given as a last resort to release of the peroneal nerve, which was contused,
at the time of her first accident.

That is the only procedure that would be of benefit to her.

I believe that [while] the treatment to date has been
appropriate for her injury pattern, it unfortunately has failed to recover the
functional integrity, particularly of the upper extremity, to satisfy her
demands for normal shoulder function for work and recreational activities.

Her time off work is completely understandable given the
nature of her work and the status of her upper extremity following [the]
injury.

If she does not gain any further benefit from surgical
techniques, then she will suffer some long-term consequences that may affect
her current employment and also future employability. There is an opportunity
to help her, but if this does not work, then she will be left with permanence
of her pain pattern affecting her shoulder which will limit her from doing
repetitive above shoulder height activities or repetitive lifting activities,
both of which may not qualify her to continue on as a server.

Given that she has a Grade XII
education she may even require retraining in the future depending on her status
at an appropriate six months time following surgery on her shoulder [Emphasis
added].

[40]        
In his deposition, Dr. Regan emphasized that it was not realistic
to expect that the arthroscopic procedure he was recommending would restore the
plaintiff to her pre-accident level of functioning. What he was hoping for was
a result which would take her to a level of recovery she would not achieve
without surgical intervention.

[41]        
In August, 2009 Dr. Anton repeated the corticosteroid injection
into the plaintiff’s left shoulder in the hope that it would provide some
relief. The plaintiff, who testified that she has a phobia about needles, described
the pain and discomfort associated with the administration of this injection as
lasting for about five days. The relief she was able to get from this injection
was, once again, short-term.

[42]        
The plaintiff testified that she understood from her conversations with Dr. Regan
that while arthroscopic surgery was her “best shot” at getting relief from her
shoulder pain, a recovery to her pre-first accident state could not be
guaranteed.

[43]        
The plaintiff delayed going through with the surgery recommended by Dr. Regan
until after Christmas, 2010 and completion of the Vancouver Winter Olympic
Games the following the spring. The plaintiff testified that she could simply
not afford to be away from work during these busy and lucrative periods.

I. The Plaintiff’s Surgery, Post-Operative Treatment and Prognosis

[44]        
The plaintiff underwent arthroscopic surgery on her left shoulder on
October 19, 2010. Inflamed bursal tissue was removed from the rotator cuff area
in order to ease the impingement of the tendons. In addition, Dr. Regan
performed an arthroscopic biceps tenolysis which is designed to remove scar
tissue from the biceps tendon. Dr. Regan recommended that the plaintiff be
off work for a period of three months and that a course of physiotherapy
treatments be initiated to aid in her recovery.

[45]        
The plaintiff testified that she was incredibly sore after the surgery.
She was prescribed Oxycodin but was unable to tolerate it. Instead, she used
Tylenol 3 and Advil. In addition to taking regular physiotherapy, the plaintiff
completed a bookkeeping course at Langara College during her post-surgical
recovery period. She testified that she did so because her medical caregivers
were clear that having the surgery would not guarantee a full recovery to her
pre-accident state.

[46]        
The plaintiff was medically cleared for a graduated return to work
commencing February 1, 2011 and to full-time duties on February 21, 2011.

[47]        
The plaintiff testified that her symptoms improved immediately following
the surgery and that she was optimistic about a full recovery. When she went
back to work she was initially less sore than before the surgery, had an
improved range of motion and was able to perform her duties with less pain.

[48]        
The plaintiff’s physiotherapist, David Terlicher, was permitted to give
fact-based evidence as to his observations of the plaintiff following her
surgery. The plaintiff did not seek to qualify Mr. Terlicher to give
opinion evidence. Mr. Terlicher testified that six weeks after the
surgery, the plaintiff had improved range of movement and decreased
inflammation in her left shoulder. He assisted the plaintiff following her
surgery with a number of stretching and strengthening exercises. By the end of January,
2011, Mr. Terlicher noted swelling in the plaintiff’s left shoulder. By
May, 2011, he noted increasing tension in the plaintiff’s scapular thoracic
muscles. By September, 2011, he noted increasing tension across the plaintiff’s
left shoulder and that she was bracing herself by tucking her shoulder into her
side. By October 2011, he noted a decrease in the range of movement of the
plaintiff’s shoulder. He testified that these observations are objective in
nature.

[49]        
The plaintiff also continued to be seen by Dr. Anton and Dr. Regan
post-surgery.

[50]        
By report dated July 7, 2011, Dr. Regan noted that the plaintiff
continued to have symptoms of discomfort in her left shoulder aggravated by her
work-related activities. The plaintiff’s range of motion of her left shoulder
was determined by Dr. Regan to be full with excellent strength. However,
there was pain over the biceps tendon, verified by the administration of
clinical tests, which indicated ongoing biceps tendinitis. There was also
continuing pain over the rotator cuff. The plaintiff continued to report pain
over the scapular region on the left side of her back. She also reported
continuing pain over the fibular head of her left knee. The plaintiff’s ongoing
left knee pain was also confirmed by diagnostic testing. Dr. Regan
concluded as follows:

I felt her left shoulder was an ongoing issue secondary to
over-use from her job. I did not feel it was going to improve from that point
in time as she had been 8 months following her arthroscopic shoulder surgery. It
was improved from its pre-operative status, but I did not feel it would improve
from there.

She has undergone an arthroscopic tenolysis of the long head
of biceps and subacromial decompression left shoulder. There was no reservoir
of calcium to remove and she has done well following removal of the bursa,
which was thickened and inflamed.

She has continued pain in her biceps tendon predominantly,
which is likely related to her work-related activities. This may improve
through the passage of time with ongoing icing and gentle progressive rotator
cuff strengthening activities. If [the] condition worsens, then a job change
will need to be discussed with her. She is more financially secure in her job
as it stands than attempting to be retrained; however, pain will need to be
monitored closely.

One final procedure could be done
on her behalf, but would require 3-4 months off work. This procedure would be a
biceps tendonesis if biceps pain continued. I would not subject her to this
unless she has pain for activities of daily living, including night pain in
spite of stopping her job. At the present time, she is able to function at a
high level, with an irritating focus being the repetitive nature of her job for
at and above shoulder height activities, plus repetitive loading to the
shoulder [Emphasis added].

[51]        
In his deposition, Dr. Regan clarified that while the plaintiff’s
shoulder was fully functioning, pain is the main limiting factor for her. He
testified that the primary issue is that plaintiff continues to “pour salt in
the wound” and that, as a consequence, her shoulder will never settle down
because she keeps irritating it due to the vigorous, weight bearing nature of
her work.

[52]        
Dr. Regan concluded that the plaintiff’s myofascial pain had improved
since 2009 and would likely settle. He acknowledged, however, that recovery
from this condition will be prolonged and that the plaintiff may be left with
issues of chronic pain affecting the left side of her neck and the myofascial
muscle groups involving the trapezius, levitator scapula and left paraspinal
regions.

[53]        
With respect to the plaintiff’s left knee, Dr. Regan noted ongoing
irritability of the peroneal nerve and concluded that if the condition worsened
over time and the plaintiff developed a more progressive loss of function of
the peroneal nerve, then consideration could be given to a further surgical
intervention. Recovery time from such a procedure would be 6 to 8 weeks. Dr. Regan
concluded that the problem was not serious enough to warrant surgical intervention
at that time.

[54]        
In conclusion, Dr. Regan testified in his deposition that while the
plaintiff benefited to some extent from the arthroscopic surgery in terms of
her pain levels and in her functioning, she did not return to the level that
she was at before the accident occurred. While decompressing the rotator cuff
by removing the inflamed and thickened bursa appeared to help the plaintiff
quite a bit, the biceps tendon procedure did not provide lasting relief.

[55]        
When asked whether he thought the plaintiff could continue with her work
given the level of functioning she had achieved by the summer of 2011, Dr. Regan
responded, “that’s hard for me to answer that question.” He pointed out that
the plaintiff was working, but doing so with pain and that her pain could get
worse as a result of the cumulative toll of the demands of her job.

[56]        
Dr. Anton reassessed the plaintiff at about the same time. By
report dated August 3, 2011, he concluded that the plaintiff had a reasonably
good, but less than optimum, outcome from the surgery. Unfortunately, she but
had not become pain free. The plaintiff was reporting her current shoulder pain
as being about 3 or 4 out of 10 which was a significant improvement from her
pre-surgery state. The plaintiff reported to Dr. Anton that her shoulder
pain was exacerbated by her work as a server. Dr. Anton noted that heavy
or repetitive lifting, frequently elevating the arms to shoulder level or
above, and repetitive internal rotation of the shoulder with the arm elevated
would exacerbate her pain. Dr. Anton concluded that the plaintiff also
continued to have intermittent irritation of the bicep tendon in her left arm
which would be exacerbated by flexion of the arm at the elbow, lifting with the
left arm or reaching forward and up at the shoulder. Overall, Dr. Anton
felt that the plaintiff’s shoulder was stable at the time of his post-surgical
assessment. He diagnosed continuing myofascial pain.

[57]        
Dr. Anton expressed the following view with respect to the
plaintiff’s prognosis:

Considering the various diagnoses that are
contributing to Ms. Wong’s continuing shoulder pain, the factors that
exacerbate her pain and the specific physical demands of Ms. Wong’s
work as a server, it is my opinion she will probably continue to have shoulder
pain indefinitely. Her pain would probably improve if she did not have to
participate in her current work or any work that placed similar loads on the
shoulder. However she would continue to be at risk for shoulder pain in [the]
future.

Ms. Wong continues to have symptoms in the left leg. My
impression is that she probably has ongoing irritation of the common peroneal
nerve at the fibular neck on the outside of the knee. It is possible that she
has some instability at the superior tibiofibular articulation (the connection
between the tibia and fibula just below the outer knee) which is causing that
irritation.

It is my impression that Ms. Wong will continue in
her current employment because, from a financial perspective, that is the best
option for her. However, her current work is not ideal. It will continue to
exacerbate her shoulder pain.

Ms. Wong would have similar difficulty with other
types of employment that involve any repetitive movement or heavy lifting,
repetitive use of the left arm, working with the left arm, at shoulder height
or above, or sustained positioning of the head, neck and shoulder. That means
her range of employment options is reduced.

Ms. Wong’s left leg problem at this time does not
significantly affect her participation in work, though it could make it
difficult for her to [do] work that required a lot of walking or standing if it
gets worse.

Ms. Wong’s recreational activities are also limited in
the sense that certain activities are likely to cause more pain in the shoulder
as described in the context of her work. In addition, she is at risk for
flare-ups of pain in the left leg with activities that involve repetitive
impact or movement of the knee such as running.

Ms. Wong would also have difficulty with household
chores that placed repetitive loads on the shoulder.

Considering Ms. Wong’s
medical condition and the likelihood she will continue to have pain exacerbated
by her work as a server, I would recommend Ms. Wong consider retraining to
do some type of work that did not involve repetitive loads on the shoulder. The
question of whether that is feasible and what work options would be suitable
for her depends not just on her medical condition and also on other factors
such as her personal circumstances, education and work history [Emphasis
added].

[58]        
Dr. Anton testified in his deposition that while the plaintiff
would experience shoulder pain indefinitely, the intensity of her pain would
fluctuate depending, in part, on the activities she engaged in. He reiterated
his view that the plaintiff’s current work is going to continue exacerbating
her pain. He testified that it was, “a reasonable thing for her … to try
to find another job that doesn’t involve those kinds of loads on the shoulder” [Emphasis
added].

[59]        
Dr. Anton qualified, to some extent, Dr. Regan’s assessment
that the plaintiff was functioning at a high level after her left shoulder
arthroscopic surgery. Dr. Anton noted that the statement was of a general
nature and would have to be verified through the administration of a detailed
functional history. Dr. Anton concluded that while the plaintiff was
functioning after her surgical procedure, she was doing so with pain.

[60]        
Dr. Anton reassessed the plaintiff on December 1, 2011. He
concluded that the plaintiff’s ongoing left knee pain was likely attributable
to the residual effects of ongoing irritation of the common peroneal nerve
secondary to the injury she sustained in the first accident. He termed
“uncertain” the prognosis for improvement in the plaintiff’s left knee and
recommended an orthotic, at least as an interim measure, to stabilize her foot
and ankle.

[61]        
Dr. Anton also reported that, on reassessment, the plaintiff was
complaining of increased shoulder pain. His impression was that the plaintiff’s
pain was attributable to the postural and mechanical loads on her left shoulder
required in her work as a server. He explained that the impact of the
plaintiff’s work had a cumulative effect on her over the course of a day. The
specific diagnoses accounting for her left shoulder pain include impingement of
the rotator cuff, tendinopathy of the tendon of the long head of the biceps,
and myofascial pain. In his deposition, Dr. Anton expressed the view that
while there continued to be some shoulder impingement in the area of the
rotator cuff, the plaintiff’s primary pain generators were from her left bicep
tendon and her ongoing myofascial pain. He concluded as follows:

Ms. Wong has exhausted both non-surgical and surgical
options for her shoulder. The prognosis for further improvement in her left
shoulder pain is poor as long as she continues in her current work.

It is my opinion [that] Ms. Wong needs to find
alternative work better in keeping with her physical capacity. Her work options
will be more limited than would otherwise be the case because of the left
shoulder problem. A vocational evaluation would be required to identify what
her options may be and whether she would require retraining.

Even if Ms. Wong finds suitable alternative
employment, she will probably be at increased risk for episodes of pain in the
left shoulder indefinitely. As a result, she may require medication such as
topical anti-inflammatories… and oral painkilling medication… She would
probably also get symptomatic relief from occasional massage therapy or physiotherapy
focused on modalities for pain relief.

It will be important that Ms. Wong
exercise to maintain range of motion and strength in the shoulder and she
likely would need to go to a gymnasium or fitness facility for that [Emphasis
added].

[62]        
In his deposition, Dr. Anton noted that while pain does cause
impairment and disability, it is also subjectively experienced. He testified
that the question of when it becomes reasonable for someone to stop a
particular activity because it exacerbates their pain does not necessarily have
a medical answer.

[63]        
Dr. Anton testified that while running is hard on the knees, it is
to the plaintiff’s credit that she continues to engage in this activity because
she gets more benefit out of it than downside in terms of any flare-up of pain.

[64]        
The plaintiff testified that her symptoms have since deteriorated to a
level that is comparative to her pre-surgery state. She testified that she does
not know how much longer she can carry on in her current serving position. She
described herself as “hanging by a thread” in terms of her ability to continue
functioning at work. She testified that she does not see herself in that job
one year from now.

[65]        
Sleep deprivation continues to be an issue for the plaintiff. When she
fails to get restorative sleep, it affects her mood. She testified that is hard
to create “a Fairmont experience” for guests when she is so tired. She
describes herself as being less joyful now than before the first accident and
much less social. She does not have the energy to do housework. Her injuries
affect her ability to bake – one of her long-standing recreational pursuits.
While her shoulder hurts at work, she is not open about it with her employer or
colleagues. The work environment at the Fairmont is competitive and she does
not want to be seen as complaining or be regarded as a liability by her
employer. She also does not want to risk losing her job as this is the most
remunerative position she has ever held.

J. The Plaintiff’s Current Compensation and Employment Options

[66]        
At the time of the first accident, the plaintiff was making $13.26/hour.
As noted above, she now makes $15.00/hour. She makes more from her tips than
she does in wages.

[67]        
Wayne Sample, an accountant at the Fairmont Vancouver Airport Hotel, was
called by the plaintiff to give evidence respecting her sources of income. Mr. Sample
testified that each server has a magnetic key card for entering bills incurred
by restaurant and lounge patrons. He testified that the system allows the hotel
to keep track of the total sales of the server and permits the hotel to
determine tips paid to servers when customers pay by credit card or obtain room
service. The system does not keep track of cash sales. Any gratuity earned by a
server on a cash sale would be solely within their knowledge.

[68]        
Mr. Sample testified that, with one exception, tip income does not
appear on a server’s T4 slip as tips are gratuities and not remuneration paid
by an employer. The exception relates to mandatory gratuities paid by tour
groups for package deals or for catering supplied by the hotel. These
gratuities are reflected on an employee’s T4.

[69]        
Mr. Sample confirmed the obvious proposition that gratuities are
income and should be declared by servers as “other employment income” on their
tax returns.

[70]        
Since 2010, the Fairmont has issued to its employees a summary of credit
card gratuities earned each year. Prior to 2010, employees were not
specifically informed of gratuities they earned on credit card sales although
this information was collected and stored internally by the Fairmont’s
accounting department beginning in January of 2007.

[71]        
The Fairmont records entered through Mr. Sample reflect that in
2007 the plaintiff received $30,538.23 in tips on credit card and room charge
sales. In addition, she received $3,090.38 in mandatory gratuities paid by tour
groups or in relation to catered functions in the hotel (“group sales”). The
plaintiff’s cash sales in 2007 were $14,134.59. Assuming an average gratuity of
12% on her cash sales, the plaintiff would have made an additional $1,696.15 in
tips. The total amount of tip income the plaintiff earned in 2007 is $35,324.76.
Tip income totalling $32,234.38 would not have been reflected on the
plaintiff’s T4. On her 2007 tax return, the plaintiff declared income from all
sources totaling $34,003.00. Of this amount, $4,891.00 was reported as other
employment income. $1,391.00 of this “other employment income” consisted of
income replacement benefits received from Great West Life when the plaintiff
was off work in January, 2007. It is apparent from this that in 2007 the
plaintiff reported $3,500.00 in tip income ($4,891.00 – $1,391.00). In the
result, the plaintiff did not declare about $28,734.38 of income in 2007 (Total
tip income not reflected on T4 of $32,234.38 – $3,500.00 actually claimed).

[72]        
In 2008, and assuming an average 12% gratuity on cash sales, the
plaintiff made $45,599.25 in tips. Tip income totalling $42,346.15 would not
have been reflected on the plaintiff’s T4. On her 2008 tax return, the
plaintiff reported total income from all sources of $36,954.00. Of this amount,
$4,800.00 was reported as other employment income. Accordingly, the plaintiff
did not declare about $37,546.15 of income in 2008.

[73]        
In 2009, and assuming an average 12% gratuity on cash sales, the
plaintiff made $37,823.55 in tips. Tip income totalling $35,027.43 would not
have been reflected on the plaintiff’s T4. On her 2009 tax return, she reported
total income from all sources of $37,227.35. Of this amount, $5,000.00 was
reported as other employment income. In 2009, the plaintiff failed to declare
about $30,027.43 of income.

[74]        
In 2010, and assuming an average 12% gratuity on cash sales, the
plaintiff made $36,571.18 in tips. Tip income totalling $32,831.66 would not
have been reflected on the plaintiff’s T4. On her 2010 tax return, she reported
total income from all sources of $40,181.45. Of this amount, $8,159.00 was
reported as other employment income. $4,059.00 of this “other employment
income” consisted of income replacement benefits received from Great West Life
in 2010. It is apparent that in 2010 the plaintiff reported $4,100.00 in tip
income ($8,159.00 – $4,059.00). In the result, the plaintiff did not declare
$28,731.66 of income in 2010 (Total tip income not reflected on T4 of $32,831.66
– $4,100.00 actually claimed). It will be recalled that the plaintiff was
absent from work in 2010, recovering from her shoulder surgery, from October 19^th
until the end of the year.

[75]        
It is noteworthy that the plaintiff was informed by the Fairmont, in
writing, in early 2011 that her gratuities from credit card sales alone for
2010 were $30,652.82. The plaintiff was advised by her employer that, “this
information may be helpful to you when you are preparing your 2010 tax return”.

[76]        
The plaintiff testified that she makes about $63,000.00 a year. She said
it is her practice to declare about $5,000.00 in tip income each year. She is
aware that she is obliged to declare all income, including tips and gratuities,
on her tax return. She testified that she was, “following industry standard” in
not declaring the full amount of her tips and gratuities. She testified that
she does not know anyone in the restaurant service industry who declares the
full amount of their tips. Having said that, the plaintiff admitted knowing
that failing to declare all of her tips and gratuities was wrong. She testified
that she could not have supported herself and her daughter had she declared and
been taxed on the full amount of her income. She testified that, consistent with
her past practice, it was not her intention to declare the full amount of her
tip income on her 2011 tax return.

[77]        
Fadi Eid, the Fairmont’s food and beverage manager, testified that he
approached the plaintiff about changing her role from server to food and
beverage supervisor at the Fairmont. He thought the plaintiff would be capable
of discharging the responsibilities of a managerial position. He testified that
the salary attaching to this position was $42,000.00 a year. The plaintiff’s
recollection is that the position paid something under $50,000.00 a year. The
plaintiff confirmed that she was approached by Mr. Eid in October, 2011
about this position. Their recollections of the discussions they had about this
opportunity are essentially the same. In short, the plaintiff initially advised
Mr. Eid that she was not interested in the position because it would
result in huge pay cut for her. After thinking about the opportunity further
and preparing a household budget, the plaintiff went back to Mr. Eid with
a counter proposal – specifically, a blended supervisory and serving position.
Although initially attracted to the idea, the Fairmont ultimately went in
another direction for business reasons entirely unrelated the plaintiff’s
qualifications for the job.

[78]        
Mr. Eid testified that it is possible within the Fairmont’s
organizational structure to rise to a mid-level management position without a
degree. Such a position would pay up to $55,000.00 a year. He testified that it
would not be possible to rise to an executive level without a degree.

[79]        
The plaintiff describes her resume as “thin”. She has virtually no work
experience apart from serving. She testified that she is essentially computer
illiterate and has a good deal of trepidation about learning computer skills.
She has looked at Fairmont job postings on their website but feels she is only
qualified to apply for similar serving positions. She testified that she hopes
that her experience and skill in the hospitality industry will compensate for
her absence of education, but understands that retraining may be required. She
testified in cross-examination that if she embarked on a retraining program,
she might serve one or two days a week at the Fairmont to supplement her
income.

[80]        
The plaintiff signed up for an additional course at Langara College in
October, 2011 entitled “How to Start Your Own Business”. She did not complete
this course. The plaintiff testified that the demands of her work and parental
responsibilities left her with too little time and energy to complete the
course requirements.

[81]        
The plaintiff called Derek Nordin as a witness at trial. He was
permitted to give opinion evidence as a vocational consultant going, primarily,
to the plaintiff’s residual earning potential. He prepared a vocational
assessment of the plaintiff in the fall of 2011. His report, dated December 12,
2011, was admitted at trial. The report contains a number of factual
inaccuracies on central issues, including the plaintiff’s current compensation
level, which, I find, were the product of errors in the preparation of the
report or miscommunications between the plaintiff and Mr. Nordin. Those
inaccuracies significantly detract from the weight I might otherwise be
prepared to give this evidence.

[82]        
Mr. Nordin concluded that even with retraining, the plaintiff was
unlikely to approximate her current reported earnings at the Fairmont. He
testified that even if the plaintiff completed a college diploma in business
administration, her starting salary for an entry level position would likely be
in the $40,000.00 – $50,000.00 range. He testified that if the plaintiff is
ultimately forced to leave her serving position, her “next best” option would
be to secure a mid-level management position with the Fairmont at a reduced
compensation level. He testified in cross-examination that the plaintiff told
him that such a position would pay less than $50,000.00 a year. He acknowledged
that he did not call the Fairmont to confirm the information provided to him by
the plaintiff nor did he explore issues relating to the value of pension plans
available to managerial employees. He testified that he would not be surprised
to learn that managerial positions at the Fairmont pay roughly $55,000.00 a
year. He acknowledged that this would be close to what the plaintiff currently
makes. He further acknowledged that his vocational assessment suggested that
the plaintiff might have an aptitude for sales. He agreed in cross-examination
that, on average, real estate agents make between $60,000.00 and $70,000.00 a
year. He testified that the plaintiff would be capable of doing the training
required of a real estate agent. In re-examination, Mr. Nordin testified
that even with a hospitality diploma, hotels have a hierarchical structure and
employees are often required to work their way up the ladder, starting with
front desk or clerical postings. He also agreed that the average yearly salary
for real estate agents may not be a true indicator of what the majority of real
estate agents actually make as the average earnings of agents are skewed by the
few who are very successful.

[83]        
Finally, the plaintiff called Darren Benning, an economist, who was
permitted to give opinion evidence respecting the plaintiff’s past income loss,
future cost of care and future income loss. I will address Mr. Benning’s
written reports and his viva voce evidence when I turn to consider the
plaintiff’s claim for damages in each of those areas.

K. The Plaintiff’s Credibility

[84]        
Counsel for the defendants submits that the plaintiff is prone to
exaggeration, has demonstrated a pattern of deception and is prepared to
mislead if it is in her economic interests to do so.

[85]        
She takes the position that as complaints about pain levels are not
objectively measurable, this Court must be careful about accepting the plaintiff’s
evidence where it is unconfirmed by other independent evidence. She reminds me
of the cautionary note sounded in Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.) about the need for convincing evidence when subjective reports of
pain persist well beyond the usual recovery period. I have kept that principle
in mind in assessing the plaintiff’s credibility and in quantifying the
appropriate award for non-pecuniary damages.

[86]        
In support of her submission respecting the findings I should make in
relation to the plaintiff’s credibility, counsel for the defendants relies on
the cumulative impact of the following considerations:

1.     The
plaintiff included as part of her special damages claim a user fee of $25.00
for one physiotherapy appointment she was unable to attend. Counsel for the
defendants submits that the small amount in issue is irrelevant. She contends
that what is important is the fact that this demonstrates that the plaintiff is
prepared to mislead;

2.     The
plaintiff claimed on her special damages summary $129.79 for a prescription
obtained to treat an outbreak of shingles a few weeks before her surgery. The
evidence on this point is that the plaintiff was feeling quite apprehensive about
the upcoming surgery and attributes the shingles outbreak to her worries about
how the surgery would go. Her counsel abandoned this portion of the special
damages claim in closing submissions;

3.     The
plaintiff paid her movers in cash to avoid paying tax;

4.     The
plaintiff told Dr. Anton for the first time in July, 2011 that she hurt
both of her knees in the accident. Counsel for the defendants concedes that
both of the plaintiff’s knees were bruised in the accident but submits that it
is significant that the plaintiff attempted, close to three years after the
second accident, to attribute completely unrelated pain in her right knee to
the accident for the purposes of enhancing her claim for damages;

5.     The
plaintiff told Dr. Regan that in the first accident her driver’s side door
was “caved in” or “crushed in”. The defendants’ counsel points out that the
photographs clearly demonstrate that the door was not affected at all by the
collision. She contends that the plaintiff was deliberately painting a more
dramatic picture of the event in an effort to convince Dr. Regan to assess
her knee injury in a more serious light;

6.     The
plaintiff has continued to work without any modification to her working
environment and led no evidence that she has requested any work accommodation
from her employer to make her job more manageable; and

7.     Most
significantly, counsel for the defendants takes the position that the
plaintiff’s failure to declare a substantial amount of her tip income over the
past years seriously affects her credibility. She argues that the plaintiff’s
explanation for her failure to do so is wholly unsatisfactory and that her
stated intention not to report gratuity income on her 2011 tax return suggests
that she does not even understand the dishonesty of her own conduct.

[87]        
I am unable to accept counsel for the defendants’ position as it relates
to the plaintiff’s credibility.

[88]        
I found the plaintiff to be candid and forthright in her testimony. I
find that she made no attempt, deliberately or otherwise, to exaggerate the
nature and extent of her injuries.

[89]        
In coming to this conclusion, I have relied not only on my own
assessment of the plaintiff’s credibility as she gave testimony but on the
following additional factors.

[90]        
Counsel for the defendants never directly put to Dr. Regan or Dr. Anton
that the plaintiff was exaggerating the extent of her injuries or the duration
and intensity of the pain she continues to experience as a consequence of these
accidents. The failure to do so tends to diminish the force of her submission
on this point.

[91]        
The position of counsel for the defendants that the plaintiff is
exaggerating the extent and duration of her injuries is simply inconsistent
with the medical evidence provided by Dr. Regan and Dr. Anton. I have
no hesitation in accepting their evidence. In coming to this conclusion I
recognize that in August of 2008, Dr. Feldman was considerably more
optimistic in addressing the plaintiff’s prognosis. Dr. Feldman saw the
plaintiff on one occasion. He assessed her before the second accident occurred.
His opportunity to assess the course of the plaintiff’s injuries and her
ability to recover from them is, by far, inferior to the opportunities Dr. Regan
and Dr. Anton had to diagnose the injuries sustained by the plaintiff as a
consequence of the two accidents and monitor her recovery both before and after
her arthroscopic shoulder surgery. Both Dr. Regan and Dr. Anton gave
their testimony from that advantaged perspective. Both are eminently qualified
and very experienced medical specialists. Neither discerned any exaggeration or
malingering on the part of the plaintiff. To the contrary, Dr. Anton
reported that, “on examination, Ms. Wong presented as a straightforward
individual with no pain behaviour or overreaction.” Dr. Regan reported
that on physical examination the plaintiff was, “straightforward although
visibly upset by her injury pattern and its effect on [her] work life and
recreational activities.” I note, as well, that the plaintiff’s family
physician, Dr. Thompson, testified that the plaintiff was a stoic person
who was not known to complain or make frequent medical appointments. The
plaintiff was also described by her friend, Wendy Masse, as a person who
infrequently complains and is generally “pretty stoic”. I discerned no
inclination on the part of Ms. Masse go out of her way to give evidence
favourable to the plaintiff’s cause. She, too, was forthright and candid.
Finally, it perhaps goes without saying that the various medical interventions
conducted by Dr. Anton and Dr. Regan speak volumes about the extent,
ongoing nature and severity of the plaintiff’s injuries. Put simply, those
invasive procedures would not have been undertaken in the absence of
compelling, objectively verifiable evidence that the plaintiff was suffering
with relatively severe shoulder pain.

[92]        
Further, the plaintiff’s subjective report of ongoing discomfort and
pain is confirmed by those who have had the opportunity, before and after the
arthroscopic surgery, to observe her physical condition and behaviour. Shoulder
impingement syndrome and biceps tendonitis was diagnosed after the
administration of clinical tests by Drs. Regan and Anton. The diagnosis was
confirmed by the arthroscopic surgery that resulted in the removal of inflamed
bursa from the plaintiff’s rotator cuff. Mr. Terlicher, the plaintiff’s
physiotherapist, also noted objective signs of increased swelling and decreased
range of movement in the plaintiff’s shoulder after her return to work
following the arthroscopic surgery. Ms. Masse and the plaintiff’s daughter
have also observed behavioural changes in the plaintiff consistent with someone
who is experiencing ongoing and significant pain in the left shoulder.

[93]        
I cannot accede to the defendants’ submission that the plaintiff was,
late in the day, attempting to inflate her claim for non-pecuniary damages by
raising concerns about her right knee. The defendants concede that the
plaintiff’s right knee was injured in the accident. Photographs taken shortly
after the first accident depict bruising to both knees. The plaintiff made
timely complaint to Dr. Thompson and then to Dr. Regan about the
injury to her right knee. It was not, however, among her major complaints after
the first accident or at any time thereafter when she was receiving medical
treatment. I do not find it surprising that a secondary issue would be brought
up by the plaintiff at a later date and I read nothing into the fact that she
did so. Dr. Regan conducted a further investigation of the right knee
including an MRI in July, 2011. By report dated January 5, 2012 Dr. Regan
concluded that the right knee pain the plaintiff was then experiencing was not
attributable to the accident and would likely settle. In my view, it was
entirely reasonable for the plaintiff, in consultation with her orthopaedic
surgeon, to explore the nature and origin of the right knee pain she was
experiencing, particularly in circumstances where her right knee had been
injured in the first accident. I do not draw any conclusions from this adverse
to the plaintiff’s credibility.

[94]        
That the plaintiff has not disclosed to, or perhaps even concealed from,
her colleagues and employer the extent of her discomfort at work is
understandable. She works in a competitive, fast-paced environment and does not
wish to be seen as a liability or something less than a fully contributing
member of the Fairmont team.

[95]        
That the plaintiff has not requested some sort of workplace
accommodation from her employer cannot, in my view, be used in this case as a
factor undermining the veracity of her claim that she continues to struggle
with shoulder pain which is aggravated by the demands of her serving position.
I am at a loss to know what the plaintiff could reasonably request of the
Fairmont that would accommodate her current situation. Her position requires
her to lift heavy items and serve multiple food orders at once. The restaurant
is a busy one. The Fairmont’s business model requires that this lifting be done
by serving staff. As noted above, no bussers are employed in the restaurant.
High standards of service are expected of Fairmont employees. The plaintiff
understands this. She testified that despite the physical nature of her work, a
certain degree of elegance is required of her in the presentation of food
orders tableside in order to give guests what she described as “a Fairmont
experience”. The configuration of the kitchen requires that the plaintiff stack
dirty dishes in racks that are shoulder height and above. The defendants were
unable to suggest in argument what accommodations the plaintiff could
reasonably ask her employer to consider while she remains in this position. I
draw no inference adverse to the plaintiff’s credibility on this account. In
fact, the plaintiff has explored reasonable accommodations with her employer in
the only way she could – by considering how she could remain with the hotel but
in a redefined role. I will return to this issue in considering the claim for
future income loss.

[96]        
The plaintiff has gone to extraordinary lengths to seek out conventional
and unconventional treatments to relieve her pain. Her conduct is simply
inconsistent with someone who has consistently exaggerated their symptoms.

[97]        
In short, and accepting that independent confirmation of the plaintiff’s
testimony is desirable in assessing her credibility, I find that there is ample
independent and objective evidence confirming her account.

[98]        
That the plaintiff still runs several times a week does not, in the
context of all of the evidence in this case, detract from the credibility of
her testimony that she continues to experience knee pain. The plaintiff had a
difficult upbringing and has faced a number of challenges in her life,
including being a single mother and sole supporting parent at the age of
twenty. She continues to run, despite the fact that it aggravates her knee
pain, to maintain her physical and mental health. Dr. Anton testified that
it was to her credit that she does so. I agree. I certainly do not find that
adherence by the plaintiff to her exercise regime operates to undermine her
credibility in this case.

[99]        
With respect to the $25.00 special damages claim for the missed
physiotherapy appointment, it would be grossly unfair to the plaintiff to
regard this as a factor telling against her credibility. The plaintiff
testified that she missed one appointment due to illness. Her evidence on this
point was not challenged. She agreed in cross-examination that this small
amount should be backed out of the special damages claim. Her counsel takes the
position that the claim is proper and should be included as part of the special
damages award as the plaintiff would not have been attending physiotherapy
appointments but for the injuries she sustained in these accidents. There is no
evidence before about the nature of the plaintiff’s illness on this occasion or
whether reasonable steps could have been taken by her to cancel an appointment
she knew she would be unable to attend. In light of the plaintiff’s testimony
on this point, I am prepared to back this small amount out of the special
damages claim. I am not, however, prepared to make anything of it in terms of
my assessment of her credibility. At the very most, the claim reflects
oversight and nothing more.

[100]     I have
come to the same conclusion with respect to the prescription claimed for the
pre-surgery shingles outbreak. The plaintiff testified that she did not even
notice that this was on the list of special damages advanced by her counsel. In
fact, on the evidence before me, including the plaintiff’s evidence of the
phobia she has about getting needles and the evidence of Dr. Thompson that
the plaintiff was becoming increasingly anxious as the surgery approached, I
would have been inclined to grant this amount as part of the special damages
award had it not been withdrawn by counsel for the plaintiff. I wish to be
clear that I intend no criticism of counsel for the plaintiff in this regard.
It was apparent to me that Mr. Logan and Mr. Good were, on behalf of
the plaintiff, taking a practical and flexible approach to resolution of the
special damages claim given the relatively small amounts involved.

[101]     Similarly,
I am not prepared to conclude that the plaintiff’s description to Dr. Regan
of the damage done to her driver’s side door in the first accident tends to
undermine her credibility, either in isolation or in the context of all of the
points made by counsel for the defendants. The accident was undoubtedly a
traumatic one for the plaintiff. Her 10 year old daughter was in the front seat
with her at the time. It was a head-on collision. The front left end of the vehicle
sustained heavy damage. The plaintiff suffered a rather significant blow to the
head in the accident. She was bleeding heavily from this wound. Her daughter
was screaming at the defendant that he had killed her mother. The plaintiff was
attempting to re-assure her daughter that she was not going to die. She was,
however, unable to exit the vehicle on her own after the accident. She was
described by her daughter after the accident as being “spaced out” and not
fully aware of what was going on around her. In this chaotic post-accident
context, it is hardly surprising that the plaintiff’s description of the nature
of the damage done to her vehicle, and the precise mechanism by which her knees
came to be injured, might not be entirely accurate. The plaintiff testified
that something hit both of her knees and that she assumed it was as a result of
the door of the vehicle caving in on her. I accept the plaintiff’s evidence on
this point.

[102]     Neither am
I prepared to find from the fact that the plaintiff paid her movers in cash
that she has a tendency to dishonest acts or that I should view her evidence
with suspicion. The evidence on this point was brief. I do not know who
proposed this arrangement. In my view, it would be unfair to the plaintiff to
view this incident, even in the cumulative way the defendants’ counsel invites,
as a factor which significantly tells against her credibility.

[103]     The
plaintiff’s consistent and ongoing failure to declare all of her income on her
tax returns is another matter. Not reporting her gratuity income is dishonest
and the plaintiff knows it. Her testimony that she does not intend to report
this income moving forward, although perhaps an honest response, does not alter
the fact that the plaintiff has knowingly engaged in a pattern of deceitful
behaviour which unfairly shifts a portion of the tax burden to those Canadians
who declare all the income they receive and pay the taxes they owe. I agree
with counsel for the defendants that the plaintiff’s justification for her
behaviour (that it reflects industry practice) is completely unsatisfactory.

[104]     The impact
a failure to report income has on the credibility of a witness like the
plaintiff is a case-specific inquiry. That inquiry must take account of factors
that are more encompassing and more subtle than the failure to report income in
isolation. A witness who has acted dishonestly in the past is not necessarily a
dishonest witness. In some cases, particularly when combined with other factors,
the persistent failure of a witness to declare all sources of income on their
tax return will result in an adverse finding with respect to the credibility of
that witness: see Rhodes v. Biggar, 2010 BCSC 762 at paras. 59-63; Vardabasso
v. Sundholm-Millar, [1994] B.C.J. No. 408 at paras. 38-46.

[105]     In the
case at bar, I am unable to find that plaintiff’s admittedly dishonest conduct
in the preparation of her tax returns adversely affects on her credibility on the
central issues before me. I would note, in this regard, that virtually all of
the plaintiff’s evidence relevant to the heads of damage that are at issue in
this case is independently and objectively supported by other evidence which I
accept. Even on the contentious issue of future wage loss, Dr. Anton, who
has had the most extensive and ongoing contact with the plaintiff, recommends,
in light of her current medical condition and the likelihood that she will
continue to have pain exacerbated by her work as a server, that she consider
retraining to do some type of work that does not involve repetitive loads on
her left shoulder. A similar view was expressed by Dr. Regan both before
and after the arthroscopic surgery.

[106]     To
discount the plaintiff’s evidence in these circumstances would be to punish her
for misconduct that is not directly before me. It forms no part of my role to
do so. In all the circumstances of this case, it would be unfair to the
plaintiff, and would lead to an unjust result, to make an adverse credibility
finding in relation to her as a consequence of her dishonesty in the preparation
of her tax returns.

L. Assessment of Damages

(a) Non-Pecuniary Damages

[107]     Non-pecuniary
damages are awarded for intangible losses, such as pain and suffering, loss of
amenities and loss of enjoyment of life. Such damages are, by their nature,
less susceptible to scientific itemization. The award must be fair and
reasonable to both parties. Fairness takes its meaning from awards given in
comparable cases, although each case is unique and will turn on its own
particular facts.

[108]     The
factors to be considered in assessing non-pecuniary damages were reviewed in Stapley
v. Hejslet, 2006 BCCA 34 at para. 46. They include: the age of the
plaintiff, the nature of the injury, the severity and duration of the pain
experienced by the plaintiff, any mental or physical disability resulting from
the injury, any emotional suffering caused by the injury, any loss of lifestyle
flowing from the injury and any impairment of life including in marital, family
and social relationships. In assessing non-pecuniary damages, the plaintiff
should not be penalized by virtue of having a stoic nature: Giang v. Clayton,
2005 BCCA 54.

[109]     The
plaintiff submits that an award for non-pecuniary damages in the range of
$85,000.00 – $110,000.00 would be appropriate in this case. In support of this
submission, the plaintiff relies on: Latuszek v. Bel-Air Taxi (1992)
Ltd., 2009 BCSC 798 [$100,000.00 awarded (less $40,000.00 for failure to
mitigate) to a truck driver who sustained multiple soft tissue injuries
including shoulder pain thought to be the result of shoulder impingement
syndrome or bicipital tendinitis following a motor vehicle accident. The
plaintiff also developed post traumatic stress disorder and depression
following the accident and, 4 1/2 years after the accident, had persistent back
pain and headaches but had not yet scheduled arthroscopic surgery because he
did not want to miss time from work]; and, Dycke v. Nanaimo Paving, 2007
BCSC 455 [$125,000.00 in non-pecuniary damages awarded to a plaintiff who
suffered multiple soft tissue injuries, the most significant among them to her
right shoulder. Two arthroscopic surgeries were performed but the plaintiff,
following the procedures, was left with constant discomfort in her shoulder.
She was very physically active before the accident but led a much more
sedentary life afterwards. Her injuries did not affect her job performance because
it was not a physically demanding position].

[110]     The
defendants submit that an award for non-pecuniary damages in the range of
$45,000.00 – $55,000.00 would be appropriate in this case. In support of their
position, they rely on: Langley v. Heppner, 2011 BCSC 179 [$55,000.00
awarded to a plaintiff who suffered a right shoulder injury when the defendant
struck the plaintiff’s motorcycle causing him to crash. The injury was
initially very painful and remained nagging at the time of trial six years
later. Of greater concern were the limitations the injury placed on the ability
of the plaintiff to fully participate in some sports. Overhead use by the
plaintiff of his arms was beyond him permanently. Ongoing pain and inability to
fully participate in recreational sports caused loss of enjoyment of life and
emotional distress. In addition, the plaintiff’s relationships with family and
others were affected, but not significantly]; Driscoll v. Desharnais,
2009 BCSC 306 [$55,000.00 awarded to 45 year old plaintiff who suffered
long-term neck, lower and middle back pain after being rear-ended in an
automobile accident. The plaintiff’s symptoms were aggravated by the physically
demanding nature of his work. His injuries resulted in sleep disturbance and in
a permanently reduced capacity for reaching and overhead lifting or dealing
with heavy weights with his arm in an extended, abducted or horizontally flexed
position. The plaintiff was no longer able to participate in motorcycle riding,
contact sports, golf or roughhousing with his children. No surgical
intervention was required]; and Bain v. Nanji, 2000 BCSC 103 [$35,000.00
awarded to a server who was involved in two motor vehicle accidents. The first
caused soft tissue injuries to the plaintiff’s neck, back and shoulders. The
plaintiff also suffered from headaches following the first accident. The second
accident aggravated her injuries and caused additional emotional upset. The
plaintiff was given an injection of anesthetic in her left shoulder and,
eventually, subacromial decompression surgery was performed (the same type of
procedure performed on Ms. Wong). The surgery was successful. The
plaintiff regained a full range of largely painless motion. At the time of
trial, her complaints were minimal. She experienced only occasional flare ups
of pain. Apart from avoiding overstressing her shoulder, the plaintiff was able
to return to her pre-accident levels of activity. Counsel for the defendants
submits that, adjusted for inflation, the award in this case amounts to about $45,000.00].

[111]     In
assessing non-pecuniary damages, I have had regard to the following
considerations. The plaintiff is a young woman. She has endured 5 1/2 years of
significant shoulder and, to a lesser extent, knee pain as a consequence of the
two accidents.

[112]     She has
undergone two injections of anesthetic and corticosteroids into her shoulder
and has tried a number of different types of therapeutic interventions to
obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing
demands of her position. Despite this, the plaintiff has continued to work as a
server because that position affords her the best opportunity to provide for
herself and for her daughter.

[113]     In
October, 2010 plaintiff underwent arthroscopic subacromial decompression
surgery on her left shoulder in addition to an arthroscopic procedure designed
to reduce pain associated with her biceps tendon. That procedure was conducted
as a result of Dr. Regan’s fear that if no intervention was tried, the
plaintiff was going to be left with a permanent partial disability that could
limit her ability to continue in the workforce given the demands of her job. Dr. Regan
was frank in his pre-surgical assessment that if she did not benefit from these
procedures, she would likely suffer long-term consequences, including
permanence of her pain pattern affecting her shoulder which would limit her
from doing repetitive above shoulder height activities or repetitive lifting
activities. While the subacromial bursal excision provided the plaintiff with some
relief, she continues to experience pain over the biceps tendon which is likely
aggravated by her work duties. Dr. Regan concluded that while her left
shoulder was improved from its pre-operative status, it would not improve in
the future. One further surgical procedure could be performed on the
plaintiff’s shoulder but this would require her to be off work for between
three and four months. Dr. Regan testified that he would only undertake
this procedure if the plaintiff continued to suffer pain associated with the
activities of daily living despite quitting her job. Although the arthroscopic
surgery was a partial success, the fears expressed by Dr. Regan prior to
the surgery have now largely come to pass.

[114]     With
respect to her left knee, Dr. Regan concluded that the plaintiff was
continuing to suffer pain associated with an injury caused by the first
accident to her peroneal nerve. He is of the opinion that a cortisone injection
is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen
over time, a further surgical procedure with a six to eight week recovery
period is the only treatment option available to her.

[115]     With
respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view
that while the condition will likely settle, the plaintiff’s recovery will be
prolonged and she may be left with chronic pain in the left side of her neck
and the trapezius, levitator scapula and paraspinal muscles in her neck and
back.

[116]     Dr. Anton
similarly opines that while the plaintiff had a reasonably good outcome from
her shoulder impingement surgery, she is not pain free and has essentially
exhausted surgical and non-surgical options for her left shoulder. He concludes
that the prognosis for further improvement of her left shoulder is poor as long
as she continues in her current work. In fact, he concludes that so long as the
plaintiff continues in her current position, she will experience shoulder pain.
Even if the plaintiff finds suitable alternative employment, Dr. Anton is
of the view that she will probably be at increased risk for episodes of pain in
her left shoulder indefinitely. With respect to her left knee, Dr. Anton
is of the view that the plaintiff continues to have irritation of the peroneal
nerve and that the prognosis for improvement is uncertain.

[117]     In short,
the injuries suffered by the plaintiff in the two accidents are serious, have
caused long-term and ongoing pain which may, insofar as the myofascial pain is
concerned, be chronic in nature. Those injuries have not been resolved by
various types of surgical and non-surgical treatment. The plaintiff will
continue to suffer pain in the future which will be aggravated by the
repetitive, weight bearing demands of her job as a server.

[118]     Prior to
the accidents, the plaintiff was a vigorous, energetic and physically active
person who participated in a broad range of sporting activities. Constant pain
and sleep deprivation have made her less energetic and much less inclined to
participate in the kinds of sporting activities she enjoyed before the
accidents. The plaintiff’s continuing symptoms have significantly affected her
lifestyle. For an individual who uses physical activity to promote good mental
health, the loss to the plaintiff in this regard has been significant.

[119]     Perhaps
even more significantly, the accidents and the symptoms that the plaintiff
continues to experience have caused her to become more socially withdrawn. She
is moodier and less patient with others, including with her daughter, Brooke. I
find that the accidents have resulted in a significant loss of enjoyment of
life and some impairment of the plaintiff’s social relationships.

[120]     The
plaintiff’s injuries have also taken an emotional toll. The plaintiff has
carried the burden of supporting herself and her daughter as a single mother.
She continues to work through pain because she feels she has no choice to do
otherwise. She faces the stress of an uncertain medical and financial future
with the possibility of additional surgical interventions in relation to her
left shoulder and left knee.

[121]     The
accidents have significantly impacted the plaintiff in physical, emotional and
social ways. They are likely to have that impact into the future and will
certainly persist as long as the plaintiff continues to work as a server.

[122]     In all the
circumstances, I assess non-pecuniary damages at $100,000.00.

(b) Past Wage Loss

[123]     Compensation
for past wage loss is based on what the plaintiff would have, not could have,
earned but for the injury that was sustained:  Rowe v. Bobell Express
Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53. A plaintiff
is only entitled to recover damages for his or her past net income loss. 

[124]     Mr. Benning
testified that the plaintiff’s net income loss on wages and estimated tips for
the periods of time she was unable to work in 2006 and 2007 (following the
first accident) and 2010 and 2011 (following her surgery) totals $19,829.00. Including
an allowance for court ordered interest on this amount to the date of the
trial, the total is $20,250.00.

[125]     The
defendants assert that the plaintiff should not be granted a past wage loss
award that includes undeclared tips. They assert this position to preserve an
ability to argue the issue in another forum as counsel for the defendants
otherwise concedes that this Court is bound by Iannone v. Hoogenraad
(1992), 66 B.C.L.R. (2d) 106 (C.A.), leave to appeal dismissed [1992] S.C.C.A. No. 185,
which holds that failure to declare tip income is no bar to the recovery of
undeclared tips as past wage loss.

[126]     The
defendants also submit that the plaintiff has failed to establish what she
would have earned in gratuities on her cash sales. As noted above, the
Fairmont’s records reflect only the total amount of the plaintiff’s cash sales
as a server. Any tip received by a server on a cash sale would be known only to
them. The defendants point out that in 2006, for example, and assuming an
average 12% tip on cash sales, the tips received by the plaintiff on cash sales
represented 8.6% of her total tip earnings. Using this as a baseline, the
defendants argue that the plaintiff’s past tip loss should be discounted by
8.6% to reflect the amount of cash tips allegedly lost but not proven.

[127]     The
defendants are, at least in theory, on firmer ground on this issue. Iannone
stands for the proposition that the plaintiff has the burden of leading
evidence of past wage loss and that it will be a difficult burden to discharge
where there is no confirmatory evidence, such as income tax returns, to
establish that the amount claimed would, in fact, have been earned. In this
case, however, I am satisfied that the plaintiff has met her burden of proof on
this issue. The records of the Fairmont Hotel clearly establish the total of
the plaintiff’s cash sales as a server. The plaintiff testified that she would
receive, on average, a 12% tip on her cash sales. I accept her evidence on this
point.

[128]     In the
result, I award the plaintiff $20,250.00 for past income loss.

(c) Special Damages

[129]     The
plaintiff prepared a schedule of special damages sought as a consequence of
both accidents. Several items on the schedule were withdrawn by counsel for the
plaintiff at trial, including: a $100.00 claim for gas expenses that
inadvertently duplicates a separate special damages claim for mileage in
relation to the plaintiff’s attendance at appointments with doctors and
physiotherapists; a $129.79 prescription for an antiviral medication to treat
the plaintiff’s pre-surgery shingles outbreak; and, a $3,600.00 claim for
interest on a loan taken out by the plaintiff to finance her post-surgical
period of recovery.

[130]     I would
deduct from the plaintiff’s schedule of special damages two additional claims.
First, the plaintiff claims $205.28 for groceries that were in her vehicle at
the time of the first accident and not recovered. The plaintiff led no evidence
at trial to support this claim. Second, I would not reimburse the plaintiff for
the $395.00 in tuition fees paid by her to Langara College for a course (How to
Start Your Own Business) she chose not to complete. That the plaintiff found
she was too busy to complete the course requirements is understandable. Even
so, I do not think she should be compensated for expenditures that were
essentially thrown away.

[131]     The
defendants also contest a $100.00 special damages claim relating to clothing
and shoes the plaintiff was wearing at the time of the first accident. The
plaintiff contends that these articles were bloodstained and lost to her as a
consequence of the accident. I accept the plaintiff’s evidence on this point
and reject the defendants’ contention that this amount should be backed out of
the special damages schedule. The amount claimed is entirely reasonable and, if
anything, likely does not fully reimburse the plaintiff for the full extent of
her loss.

[132]      With
these adjustments, I award special damages totalling $7,182.72. The plaintiff
also claims court ordered interest on these special damages. At the plaintiff’s
request, I would give the parties an initial opportunity to agree on this
calculation.

(d) Cost of Future Care

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

[134]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care; and (2) the claims must be reasonable: Milina v. Bartsch
at p. 84.

[135]     Future
care costs will be justified when it is shown that they are medically necessary
and likely to be incurred by the plaintiff. The award of damages is thus a
matter of prediction as to what will happen in the future. If a plaintiff has
not used a particular item or service in the past, it may be inappropriate to
include the cost of that item or service in a future care award:  Izony
v. Weidlich, 2006 BCSC 1315, at para. 74.

[136]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases, negative contingencies are offset by positive contingencies and,
therefore, a contingency adjustment is not required. In other cases, however,
the award is reduced based on the prospect of improvement in the plaintiff’s
condition or increased based on the prospect that additional care will be required.
Each case falls to be determined on its particular facts: Gilbert v. Bottle,
2011 BCSC 1389 at para. 253.

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

[138]     The
defendants submit that the only future care recommendation made by the
plaintiff’s physicians is for custom made orthotics. In these circumstances,
the defendants argue that a very minimal award for future care costs, in the
range of $500.00 to $1000.00, should be made.

[139]     The
plaintiff submits that an award for future care costs in the range of
$10,000.00 -$15,000.00 would be appropriate.

[140]     In support
of her position, the plaintiff relies on the evidence Dr. Regan and Dr. Anton
that pain management will continue to be an issue moving forward. Specifically,
Dr. Regan testified that the surgical procedures he performed helped with
the shoulder impingement problem but did not alleviate the plaintiff’s biceps
tendon pain. Further, while Dr. Regan thought that the plaintiff’s
myofascial pain was likely to settle over time, he acknowledged that recovery
from this condition would likely be prolonged and that the plaintiff may be
left with issues of chronic pain affecting the muscle groups in her neck and
upper back. Dr. Regan concluded that the plaintiff’s ongoing left knee
pain would not be assisted by a cortisone injection. If the plaintiff’s condition
worsened, further surgical intervention to address the plaintiff’s left
shoulder and left knee pain would have to be considered. Both would require the
plaintiff to be off work for significant periods of time.

[141]     Dr. Anton
testified that the plaintiff would continue to experience shoulder pain on an
indefinite basis. The intensity of her pain would fluctuate in response to the
demands placed on her shoulder. He similarly concluded that the plaintiff was
continuing to experience pain associated with irritation of the peroneal nerve
in her left knee and that her prognosis, in this regard, was uncertain.
Significantly, Dr. Anton testified that even if the plaintiff found
suitable alternative employment, she would likely be at increased risk for
episodes of left shoulder pain on an indefinite basis. As a result, he
concluded that she would likely require medication such as topical
anti-inflammatories and oral painkilling medication. He also reported that she
would get symptomatic relief from occasional massage therapy or physiotherapy
focused on modalities for pain relief. Finally, Dr. Anton noted that it
was important for the plaintiff to exercise to maintain a proper range of
motion and strength in her left shoulder and that she would likely need to go
to a gymnasium or fitness facility in order to do that.

[142]     I accept
the evidence of Dr. Regan and Dr. Anton as it pertains to these
issues.

[143]     The
plaintiff also relies on the evidence of Mr. Benning in support of her
claim for future care costs. Mr. Benning prepared a report estimating
future cost of care multipliers applicable to the plaintiff. Future cost of
care multipliers are a convenient, shorthand way of expressing the present
value, at a given reference date, of a future expense stream where that stream
is constant each year in real (net-of-inflation) dollars.

[144]     The
plaintiff submits that she will incur about $600.00 of annual cost of care
expenses. On the medical evidence in this case, I regard that as a reasonable,
and perhaps even conservative, estimate of the annual expenses she will likely
incur in relation to such matters as: physiotherapy and/or massage therapy;
custom made orthotics; fitness equipment for stretching and exercise;
anti-inflammatories; and, pain relief medications. Her future care costs may,
in fact, be significantly higher if further surgical intervention is required.
I find that these expenses are reasonably necessary to preserve and promote the
plaintiff’s physical and mental health.

[145]     The
plaintiff’s costs for future care are likely to exceed $600.00 per year for the
foreseeable future and then decline in later years. Assuming that the plaintiff
will incur average annual expenditures of $600.00 attributable to various types
of interventions designed to deal with her post-accident symptoms, and that she
will incur these costs until the age of 70, the cost of care multiplier is
19,771. On these assumptions, and utilizing Mr. Benning’s calculations,
the plaintiff is entitled to $11,862.00 ($600.00 per year/1,000) x 19,771 =
$11,862.60. I would award the plaintiff $11,862.60 for future care costs.

(e) Loss of Future Earnings

(i) Overview of the Applicable Law

[146]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, if so
2) what compensation should be awarded for the resulting financial harm that
will accrue over time? The appropriate means of assessment will vary from case
to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett. v. Pett, 2009 BCCA 232.

[147]     The
assessment of damages is a matter of judgment, not calculation:  Rosvold
v. Dunlop, 2001 BCCA 1 at para. 18.

[148]     Insofar as
possible, the plaintiff should be put in the position he or she would have been
in but for the injuries caused by the defendant’s negligence: Lines v. W
& D Logging Co. Ltd., 2009 BCCA 106 at para. 185. The essential
task of the Court is to compare the likely future of the plaintiff’s working
life if the accident had not happened with the plaintiff’s likely future
working life after the accident: Gregory v. Insurance Corp. of British
Columbia, 2011 BCCA 144 at para. 32.

[149]     There are
two possible approaches to assessing of loss of future earning capacity: the
“earnings approach” from Pallos; and the “capital asset approach” in Brown.
Both approaches are acceptable. Reliance on the capital asset approach will be
more useful where, as in this case, the loss in question is not easily
measureable: Perren v. Lalari, 2010 BCCA 140.

[150]     The
earnings approach involves a form of math-oriented methodology such as: (i)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value; or (ii) awarding the plaintiff’s entire annual
income for a year or two: Pallos; Gilbert v. Bottle, 2011 BCSC
1389 at para. 233.

[151]     The
capital asset approach involves considering factors such as: i) whether the
plaintiff has been rendered less capable overall of earning income from all
types of employment; ii) is less marketable or attractive as a potential
employee; iii) has lost the ability to take advantage of all job opportunities
that might otherwise have been open; and iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown; Gilbert
at para. 233.

[152]     The
parties are agreed in this case that the capital asset approach should be
adopted in light of the difficulties associated with quantifying the
plaintiff’s future loss.

[153]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49, at para. 101:

The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v. Leonati,
supra, at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d)
133 at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the
end of the inquiry; the overall fairness and reasonableness of the award must
be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may prove
to be wrong: Milina v. Bartsch, supra, at 79.

(ii) The Position of the Plaintiff

[154]     The
plaintiff submits that the evidence establishes a real and substantial
possibility that she will sustain a future income loss. While the plaintiff
acknowledges that she has a residual earning capacity, she submits that her
access to the job market is limited by her education, narrow skill set and past
work experience that has been focussed almost entirely on restaurant serving.
Applying the principles in Brown, the plaintiff submits that she has
been rendered less capable overall from earning income from all types of
employment as a consequence of the accidents. She is now less attractive as an
employee given the restrictions caused by her left shoulder. She is effectively
precluded from competing for employment positions which involve vigorous work
and she is less capable of earning income in a competitive job market.

[155]     The
plaintiff reminds me that the entry-level management job she discussed with Mr. Eid
in the fall of 2007 paid $42,000.00/year, roughly $20,000.00/year less than she
currently makes. The plaintiff also reminds me of Mr. Eid’s evidence that
while someone might eventually get to a mid-level management position with a ceiling
compensation level of $55,000.00/year without a degree, a Bachelor’s degree in
hospitality would be required to rise to the executive managerial level he is
at.

[156]     The
plaintiff also reminds me that while Mr. Nordin’s vocational assessment
suggested that she had some aptitude for sales, there is no evidence that the
plaintiff has the background, contacts or skills necessary to succeed in the
real estate industry. In any event, significant retraining would be required as
the plaintiff has no experience outside the serving industry and no computer
skills at all. Further, the plaintiff reminds me that the average income of
real estate agents ($60,000.00 – $70,000.00) is heavily skewed by a few
mega-earners.

[157]     Although
neither party suggests that the income approach is appropriate in this case,
the plaintiff also led evidence from Mr. Benning, an economist, who
prepared reports that are useful insofar as they illustrate different ways of
gauging, at least in a broad sense, the claim relating to loss of future
earning capacity.

[158]     Assuming
that the plaintiff continued to work as a server with Fairmont Vancouver
Airport Hotel until age 65 with her current wage and tip earnings, the lump sum
present value of her future income is $938,877.00.

[159]     For
comparative purposes, Mr. Benning prepared a second report estimating the
future earning capacity of the plaintiff to age 65 in three different
scenarios. In the first scenario, it is assumed that the plaintiff will receive
earnings commensurate with those of an average BC female with a high school
education from the trial date to retirement at age 65. In this scenario, the
lump sum present value of her future income is $697,813.00. The second scenario
is similar to the first but is premised on the notion that if the plaintiff has
to seek employment outside the hospitality industry, she may lack the work
experience of an average BC female high school graduate of her age (36 years
old). However, based on her life experience, the second scenario assumes that
the plaintiff’s expected income would be higher than that of a new high school
graduate (18 years old). The second scenario therefore lags the plaintiff’s
age-earnings profile by nine years, such that her starting earnings would be
equivalent to the earnings of the average 27-year-old BC female high school
graduate. Using the assumptions built into the second scenario, the lump sum
present value of the plaintiff’s future income is $642,246.00. The third
scenario assumes that the plaintiff will return to school to pursue a two-year
college diploma and will receive earnings commensurate with those of an average
BC college graduate from the time of graduation through to her retirement at
age 65. In this scenario, the plaintiff’s earnings have been lagged by 16 years
such that her starting salary will be equivalent to the earnings of the average
22-year-old BC college graduate. This adjustment is based on the assumption
that the plaintiff lacks the work experience of an average BC female college
graduate of her age, given that she will not graduate from college until she is
38 years old. Applying these assumptions, the lump sum present value of the
plaintiff’s future income is $589,738.00. Mr. Benning testified that
tuition fees for a two year college programme would cost about $5,300.00.

[160]     The
plaintiff submits that even attributing to her the highest estimated future
earning capacity posited by Mr. Benning, the difference between the lump
sum present value of what she would have made with the Fairmont, and what she
will otherwise likely make from the date of the trial based on the average
earnings of a BC female with a high school education, is roughly $241,000.00.

[161]     The
plaintiff submits that an appropriate award under this head of damages is a
minimum of $250,000.00. She submits that, viewed differently, such an award
would reflect about a 25% loss of capacity to earn income in the future.

[162]     In support
of her position, the plaintiff relies on Mackenzie v. Rogalasky, 2011
BCSC 54 [41 year old plaintiff with a grade 12 education could not continue to
cope with the physical demands of his job and took alternate employment that
paid him $20,000.00 less per year. The sum of $200,000.00 was awarded for loss
of future earning capacity] and Trites v. Penner, 2010 BCSC 882
[35-year-old plaintiff was working as an apprentice plumber at time of the
accident. Although retraining had been suggested to him, the plaintiff was
determined to struggle along in the plumbing trade despite chronic soft tissue
pain in his neck and back that might persist indefinitely. The Court concluded
that there was a substantial possibility that the plaintiff would not be able
to continue to work as a plumber but, even if he did, it would be with reduced
efficiency which would compromise his marketability. The Court awarded
$250,000.00 for loss of earning capacity].

(iii) The Position of the Defendants

[163]     The
defendants remind me that the plaintiff must always prove that there is a real
and substantial possibility of a future event leading to an income loss: Perren
at para. 32. They submit that the plaintiff has failed to meet that test
in this case. They note that the plaintiff is still working as a server. They
contend that the likelihood of the plaintiff actually leaving her current job
is negligible. They point out that she has been doing her job for over five
years since the first accident, virtually uninterrupted and without work
restrictions or workplace modifications. They submit that the plaintiff has not
taken any real steps to explore career options or retraining that might be
associated with a planned career change. They ask me to infer from this that
the plaintiff is not remotely serious about retraining and is both capable of
staying where she is and content do so. The defendants take the position that
the plaintiff ought not to be awarded anything for future income loss. Even if
the plaintiff were to leave her job, the defendants submit that her residual
earning capacity is as much, if not more, than what she is currently making as
a server. They point out that the plaintiff has managerial opportunities with the
Fairmont that carry with them enhanced pension plan benefits. They also submit
that she has the aptitude and capability to retrain as a real estate agent.
Although they invite me to reject most of Mr. Nordin’s opinion, they rely
on his testimony that, on average, real estate agents earn between $60,000.00
and $70,000.00 per year. The defendants submit that the plaintiff would be
capable of doing either of these jobs with some retraining.

[164]     In the
alternative, the defendants submit that the plaintiff’s future income loss is
minimal. They point out that the plaintiff would likely work part time as a
server during any retraining period. In fact, the plaintiff acknowledged that
she would likely do so in her testimony. In these circumstances, the defendants
submit that an appropriate award would be between six months to one year of
declared income – in other words, a maximum of about $40,000.00.

(iv) Findings and Analysis

[165]     I am
satisfied that the evidence establishes a real and substantial possibility that
the plaintiff will sustain a future income loss. The constant bio-mechanical
loads placed on the plaintiff’s left shoulder are a necessary consequence of
her full-time employment as a server and have aggravated her left shoulder pain
to such an extent that there will come a point, likely in the not-too-distant
future, that she will have to look for other work. It is reasonable for her to
do so now. The plaintiff testified that her ability to tolerate the demands of
her position, and the pain associated with discharging those demands, have
taken her close to the breaking point. In coming to the conclusion that the
evidence establishes a real and substantial possibility that the plaintiff will
suffer a future income loss, I have relied not only on the plaintiff’s
evidence, which I accept, but also on the evidence of Dr. Anton and Dr. Regan.

[166]     Even
before the surgery was performed, Dr. Regan was clear that if the
plaintiff did not gain benefit from surgical intervention, she would suffer
long-term consequences that may affect her ability to continue as a server and
also her future employment prospects. He acknowledged that given her grade 12
education, she may require retraining. While Dr. Regan was ultimately of
the view that the surgery benefited the plaintiff to some extent, she is unable
to continue working in her current position without pain and her pain will
likely worsen over time given the cumulative toll of the physical demands of
her job. Dr. Anton was more explicit in his evidence. He recommended that
the plaintiff consider retraining to do some type of work that did not involve
placing repetitive loads on her left shoulder. He testified that it was
reasonable for the plaintiff, at this juncture, to try to find some other type
of work. He recognized that her work options would likely be more limited than
would otherwise be the case because of her left shoulder injury.

[167]     I agree
with counsel for the plaintiff that her earning capacity has been impaired. She
has been rendered less capable overall from earning income; is less marketable
or attractive as an employee to potential employers; has lost the ability to
take advantage of all job opportunities which might otherwise have been open to
her, had she not been injured; and is less valuable to herself as a person
capable of earning income in a competitive labour market.

[168]     In
quantifying the plaintiff’s loss of earning capacity, I make the following
factual findings specific to this case:

1.     Despite
the pain her job as a server is causing, the plaintiff will continue in this
role for as long as she possibly can. The plaintiff has a number of incentives
to do so. First, I accept that she is able to earn more in her current position
than she will from alternative employment, at least in the short to medium
term. Second, the plaintiff takes great pride in her association with the
Fairmont and, apart from the pain her work causes, enjoys her serving job and
feels very lucky to have it. Third, the plaintiff derives considerable
self-worth from her work. She feels part of a team. She considers herself to be
“excellent at her job”. Her outstanding work has been repeatedly recognized by
her employer. There exists a bond of loyalty between the plaintiff and her
employer which will make it difficult for her to move on. Fifth, she is
apprehensive about change and very concerned that she will not be able to learn
the job skills, including computer skills, required to secure suitable
alternative employment. I would note that Dr. Anton, who treated the
plaintiff for a considerable period of time, came to the same conclusion. In
his report dated August 3, 2011, Dr. Anton related his “impression that Ms. Wong
will continue in her current employment because, from a financial perspective,
that is the best option for her”;

2.     Due to the
various incentives, financial and otherwise, that have kept the plaintiff in
her current job for what is now 5 1/2 years from the first accident, she has
been reluctant and slow to take steps that acknowledge the reality that she
will not be able to manage the pain associated with her full-time employment as
a server indefinitely. There are a number of obvious markers in the evolution
of the plaintiff’s recognition that she needs to transition to some other type
of less physically demanding employment. The most obvious of these occurred in
the fall of 2011 when she was approached by Mr. Eid about transitioning
away from a server to a food and beverage assistant in the lower end of the
management group. Although initially rejecting the idea because of the “huge
pay cut” this transition would entail, the plaintiff thought about the matter
further and went back to Mr. Eid proposing a hybrid server/management
role. That she did so reflects a growing awareness on her part that her
injuries necessitate some movement away from her current duties. In addition, I
note the evidence of Mr. Terlicher, the plaintiff’s physiotherapist, that
the plaintiff began discussing with him changing the nature of her work when
she began to realize that she would not be pain-free following her surgery. Mr. Terlicher’s
evidence on this point also reflects that the plaintiff is gradually coming to
terms with the reality of her situation. So, too, does the fact that the
plaintiff enrolled herself in business courses at Langara College. She has done
so recognizing that she must begin to prepare for a transition in her working
life;

3.     The
plaintiff is capable of and interested in working on a part-time basis as a server
at the Fairmont to supplement her income from other sources or make money
during any educational retraining period she determines to pursue. The
plaintiff acknowledged as much in her testimony. I conclude from this that the
plaintiff accepts that she can handle serving on a part-time basis because it
gives her shoulder adequate opportunity to rest between shifts. That is
undoubtedly why she proposed the hybrid position to Mr. Eid;

4.     The
plaintiff has an excellent relationship with her employer and is highly
regarded at the Fairmont Vancouver Airport Hotel. I conclude from this that the
plaintiff’s prospects for part-time employment as a server and full-time
employment in a redefined managerial role at the Fairmont are very good. I am
mindful, in this regard, of Mr. Eid’s evidence that the plaintiff is
considered to be one of their best servers as well as someone who has displayed
“good leadership skills”. Mr. Eid’s assessment of the plaintiff’s
leadership skills auger well in terms of her being able to secure employment at
the Fairmont in a managerial capacity;

5.     Mr. Benning’s
projections in terms of future earning potential compare the plaintiff with the
average BC female high school graduate or college graduate. But the plaintiff
is not average. She was awarded Fairmont’s employee of the year in her first
full year of employment at the hotel. She has won employee of the month on more
than one occasion. The plaintiff clearly has the ineffable qualities that will
make her successful as a manager in the hospitality industry or, with adequate
retraining, in some other role that involves providing service to the public. It
is very likely that her work ethic and maturity, born of the responsibilities
she faced early in life, will cause her to advance quickly in whatever alternative
employment she seeks. I note, as well, that Mr. Benning’s projections take
no account of the plaintiff’s capacity to continue to earn income as a
part-time server; and

6.     Having
said this, I have no doubt that the plaintiff faces a significant loss in
earning capacity, particularly in the transition years after she leaves her
role as a server and before she gains the skills and experience that allow her
to flourish in a new role.

[169]     Factoring
in these considerations in as best I can, and stepping back to consider the
overall reasonableness of the award, I have included that $150,000.00 provides
fair and reasonable compensation to the plaintiff resulting from her impaired
capacity to earn income in the future.

(f) Summary

[170]     In
conclusion, I award the following:

a)    Non-pecuniary
damages: $100,000.00

b)    Past wage loss:
$20,250.00

c)     Special
damages: $7,182.72

d)    Cost of future
care: $11,862.60

e)    Loss of future
earning capacity: $150,000.00

Total: $289,295.32.

[171]    
The plaintiff is entitled to costs at Scale B. The parties may speak to
the issue of costs should they be unable to agree.

“Fitch J.”

_________________________

G. Fitch, J.