IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120705

Docket: S099424

Registry:
Vancouver

Between:

Karen Wepryk

Plaintiff

And

Gerhard Juraschka
and
Patricia Isable Juraschka

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Reasons for Judgment

[1]            
The plaintiff, Karen Wepryk, was a passenger in a Suzuki SUV owned by
both defendants and driven by Mr. Juraschka, when she was injured in a
motor vehicle accident on December 5, 2008. In this action, she claims damages
for her injuries. The defendants have admitted liability.

[2]            
There is no dispute about how the accident occurred. Mr. Juraschka
was driving on Highway 3 near Rock Creek, B.C. when he encountered a patch of
black ice. He was unable to maintain control of his vehicle and it went off the
road and turned over on its side. The vehicle was a write-off.

[3]            
Ms. Wepryk was suspended in her seatbelt in the rear seat of the
vehicle. She opened the door and someone helped her out. She had no head injury.
She testified that she initially felt fine, but a few minutes later, her body
felt like lead, and she was cold and shivering. She was taken by ambulance to
hospital in Oliver. She had pain in her neck, shoulders, back, hips and thighs.
She had headaches and was dizzy. At the hospital, she was prescribed Tylenol,
and was discharged after a few hours.

[4]            
The defendants testified and gave essentially the same account of the
accident as the plaintiff. They were taken to a different hospital and later
released. Mrs. Juraschka testified that she was initially in a lot of pain
and was stiff and sore, but after some physiotherapy and work with her personal
trainer at the gym, her symptoms resolved, and she was able to resume her
normal routine after about six weeks.

[5]            
Unfortunately, the plaintiff’s symptoms did not resolve so quickly.

[6]            
After the accident, the plaintiff stayed with friends in Keremeos for a
few days until her husband returned from a trip and picked her up. A few days
later, after she had arrived back home in Aldergrove, she visited her family
physician, Dr. Cameron Smith. He prescribed a muscle relaxant and an
anti-inflammatory.

[7]            
Ms. Wepryk continued to see Dr. Smith regularly after the
accident for management of her symptoms. She tried going to a chiropractor, but
she found that it did not help. She attended physiotherapy three times per week
in 2009, but discontinued when ICBC cut her off. By that time, she felt that she
had plateaued and the physiotherapy was not providing any additional benefit. However,
she continued to do those recommended exercises and stretching that she found
helpful.

[8]            
Ms. Wepryk was seen by a number of medical professionals, including
Dr. Albert Chan, an orthopaedic surgeon; Dr. Ansel Chu, a specialist
in physical medicine and rehabilitation; Dr. Richard Loomer, an orthopaedic
surgeon; and Dr. Bernard Tessler, a neurologist. I have had the benefit of
reading their reports and hearing them testify.

[9]            
All of the doctors are agreed that Ms. Wepryk suffered soft tissue
injuries to her neck, left shoulder, and upper back as a result of the
accident, and that she continues to experience pain, discomfort and occasional
headaches from these injuries at the time of trial, three and one-half years
after the accident.

[10]        
In addition, Dr. Chan was of the opinion that Ms. Wepryk
suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer
did not agree with that conclusion. Dr. Chu had no opinion on the
causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of
Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan,
although not a great deal turns on this, since, as Dr. Chu expressed it,
the left adhesive capsulitis is “the least of her problems”.

[11]        
There was also a disagreement between Dr. Smith and Dr. Tessler
regarding the causation of left C-8 sensory neuropathy. Again, I find that
nothing of significance turns on this, as these symptoms were minor and
transient.

[12]        
The important fact is that the defendants accept that Ms. Wepryk
suffered soft tissue injuries to her neck, her left shoulder, and between her
shoulder blades, and that she continues to experience pain to this day. As Dr. Smith
put it in his report dated February 26, 2012:

More than three years have passed
since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of
prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients
still with symptoms more than two years after their motor vehicle accident. Therefore,
Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of
functioning is poor, and Ms. Wepryk must now learn to cope with what I
believe is a permanent functional impairment.

[13]        
I accept that conclusion, notwithstanding that Dr. Loomer expressed
a “hope” of improvement. In cross-examination, even he agreed that there is no
definite evidence that she will get better.

[14]        
It is likely, therefore, that Ms. Wepryk will continue to suffer
from the pain to her neck, left shoulder and upper back, along with occasional
headaches. Her symptoms are aggravated when she has to perform activities that
require her to raise her arms, or to use her left shoulder. This has an impact
on her work as a hairdresser, which requires such activities. It also has an
impact on her recreational activities and activities of daily life.

[15]        
Ms. Wepryk testified that when doing her work as a hairdresser, she
has to take periodic breaks to stretch and roll her shoulder. She did not have
to do this before the accident. This is confirmed by the testimony of several
of her clients and members of her family. As well, Ms. Wepryk testified
that she cannot work more than two days a week because the pain and discomfort increase
to the point that she cannot continue working after two days and must rest
until she is able to work again. She testified that when she begins work on
Monday morning, her pain level is usually about 2 or 3 on a scale of 10, but by
the end of work on Tuesday, her pain has increased to 6 or 7.

[16]        
The issues before me are the assessment of special damages,
non-pecuniary damages, past wage loss, loss of future earning capacity, and
cost of future care. The defendants also raise an issue of failure to mitigate.

Special Damages

[17]        
The plaintiff claims special damages totalling $2,937. Of that total,
$1,221 is for physiotherapy and chiropractic treatments, and the defendants do
not contest those expenses. The remainder is for parking and car expenses at
the rate of 50¢ per kilometre for driving to appointments with doctors, physiotherapists,
and other healthcare professionals, as well as $325 for cleaning services to
complete heavy household cleaning tasks that the plaintiff was unable to
perform due to the accident. The defendants submit that those amounts are not
sufficiently documented.

[18]        
I am satisfied that the evidence is sufficient to support the modest
amounts claimed, and the plaintiff should be awarded the entire amount of
$2,937 for special damages.

Non-pecuniary Damages

[19]        
The plaintiff was 43-years-old at the time of the accident. She is now
46. She is married and has a 20-year-old daughter. She has a high school
education and specialized training in hairdressing.

[20]        
Prior to the accident she was in good health and enjoyed an active
lifestyle. Although she had a pre-existing thyroid condition and an anxiety and
depression disorder, those conditions were of a long-standing nature and were
well-managed with appropriate medication under the supervision of her doctor.

[21]        
Before the accident, the plaintiff enjoyed cycling, hiking, waterskiing
and running, including half-marathons, 10-kilometre races, and triathlons. She
went to the gym two to three times per week. She enjoyed entertaining and
hosting dinner parties.

[22]        
In addition to raising her teenaged daughter, she did most of the
housekeeping work herself, and those who know her described how she kept her
home immaculate.

[23]        
She worked two days a week as a hairstylist in her own salon that she
and her husband set up for her in their home. She worked Mondays and Tuesdays
in order to have time for her family the rest of the week.

[24]        
In June 2007, the plaintiff’s mother was diagnosed with cancer. The
plaintiff cared for her until her death in October 2008, about six weeks before
the accident.

[25]        
In 2006 and 2007, the plaintiff did some part-time work outside the home
in addition to running her salon, but she could not do this in 2008 because she
was caring for her mother, who was living with her during the last year of her
life.

[26]        
The plaintiff testified that she had a long-term plan to do more work
outside the home, perhaps in a professional salon, once her daughter was grown,
but that her mother’s illness, and then the motor-vehicle accident, interfered
with those plans.

[27]        
Since the accident, the plaintiff has not been able to return to her
previous level of physical activity. She testified that she cannot do the more
strenuous aspects of household cleaning and that her husband now has to do such
things as cleaning the bathrooms. He testified that although he tries to help
out, this occasionally causes some friction, as he is tired from his own work
and when he comes home in the evening he would rather not have to take on these
additional chores.

[28]        
The plaintiff continues to cook, but it is less elaborate. She hosts
fewer dinners, with fewer guests.

[29]        
The plaintiff can no longer enjoy sports activities in the same way as
before the accident. She tried waterskiing once after the accident, but she
could not get up on her skis. She still does some hiking now, but no running or
cycling. Her inability to enjoy these activities without pain is a source of
frustration for her.

[30]        
The defendants rely on photographs that show the plaintiff on various
trips and holidays she has taken since the accident. I do not find these
particularly helpful. As has been noted in other similar cases, these simply
show what the plaintiff can still do, but the relevant issue in determining
general damages is what she can no longer do, or at least what she can no
longer do without enduring an unacceptable level of pain. The fact that she has
gone on trips and holidays does not detract from her testimony and the
testimony of friends and relatives about the limitations she suffers as a
result of the accident.

[31]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46 our Court of
Appeal discussed some of the factors that ought to be considered when assessing
non-pecuniary damages:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163, 2005 BCCA 54).

[32]        
The plaintiff submits that in the present case non-pecuniary damages
should be assessed at $75,000. In support of that submission, the plaintiff has
referred to a number of cases, including:

Edmondson v. Payer, 2012
BCCA 114;

Mayenburg v. Lu, 2009
BCSC 1308;

Kardum v. Asadi-Moghadam,
2011 BCSC 1566;

Trites v. Penner, 2010
BCSC 882;

Schnare v. Roberts, 2009
BCSC 397;

Guthrie v. Narayan, 2012
BCSC 734.

[33]        
The awards for general damages in those cases ranged from $50,000 to
85,000.

[34]        
The defendants refer to the following cases, where the awards for
general damages ranged from $35,000 to $45,000:

Salvatierra v. Vancouver
(City), 2008 BCSC 537;

Nisbet v. Pare, 2007
BCSC 1173;

Ragneborg v. Giesbrecht,
2009 BCSC 110;

Fata v. Heinonen, 2010
BCSC 385.

[35]        
While reference to previous cases provides useful guidance, every case
must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old
at the time of the accident and who enjoyed an active lifestyle, suffered
soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than
three and one-half years after the accident, her pain and discomfort have not
fully resolved, and she is likely to have some residual effects for the
indefinite future. She continues to have headaches three or four times a month,
and she cannot engage in vigorous physical activities, particularly those that
require her to raise her left arm above her shoulder-level, without
experiencing pain. She therefore finds it difficult to be as physically active
as she was before the accident. She says that she has gained some weight as a
result, although the medical evidence suggests that any weight gain has been
modest.

[36]        
In the circumstances of this case, on the facts as I have found them,
and considering the factors set out in Stapley v. Hejslet, I find the
proper assessment of non-pecuniary damages to be $50,000.

Past and Future Loss of Earning Capacity

[37]        
Prior to the accident, the plaintiff was working on average two days per
week as a hairdresser in her own salon in her home. Since the accident, she has
resumed working on average two days a week in her salon. She testified,
however, that it takes her longer to complete each hairdressing appointment,
and because of the pain and discomfort associated with work that involves
raising her arms, she cannot work as many hours.

[38]        
Several of the plaintiff’s customers were called as witnesses. They all
attest to the fact that she remains an excellent hairstylist. They say the
quality of her work has not diminished. However, they say that she clearly
experiences pain and discomfort, and she has to take short breaks to stretch
her neck and shoulders during appointments.

[39]        
The plaintiff claims damages for past and future loss of earning
capacity. In submissions, her counsel said that an appropriate award would be
$150,000 for loss of earning capacity, taking into account that had it not been
for the accident, the plaintiff might have increased her work week from two
days to four or more, now that her daughter is no longer a teenager.

[40]        
The defendants acknowledge that immediately after the accident, the
plaintiff missed two days work, for a loss of $150. Beyond that, however, the
defendants submit that the claim for past or future loss of earning capacity
has not been made out.

[41]        
According to her income tax records, the plaintiff’s net income from 2005
to 2011 is as follows:

2005   $5,488

2006   $6,506

2007   $6,198

2008   $8,138

2009   $6,420

2010   $7,600

2011   $9,240

[42]        
The plaintiff testified that her actual yearly income was slightly
higher than shown on her tax returns because she had some cash income that she
did not declare. She said that she was in any event below the income level
where she would have had to pay tax.

[43]        
The defendants point out that the plaintiff’s average annual net income
before the accident was $6,594, and after the accident it was higher, at
$7,753.

[44]        
Moreover, the plaintiff recorded client appointments in ledgers, and in
the defendants’ submission, these records reveal only a modest reduction in the
number of appointments after the accident.

[45]        
The plaintiff recorded 185 hairdressing appointments in 2005, 198 in
2006, 193 in 2007, and 201 in 2008. After the accident, the ledgers show 178
appointments in 2009, 182 in 2010, and 183 in 2011.

[46]        
The plaintiff was also cross-examined about the number of hours she
worked in typical months both before and after the accident, and the defendants
submit that this evidence does not support a claim of a significant
diminishment of earning capacity.

[47]        
The defendants also point to the fact that the plaintiff took Spanish
lessons in the afternoon after the accident as evidence that any diminishment
of work activity was voluntary, as the plaintiff could have been working those
hours. I do not agree with this aspect of the defendants’ submissions. Attending
the Spanish lessons clearly did not involve the lifting and arm raising
activities that cause the plaintiff pain and discomfort during her hairdressing
work. Her attendance at those lessons was a needed break from her work, and did
not encroach on time that she otherwise could have been working. Had she not
been attending those lessons, she would have been otherwise resting.

[48]        
The plaintiff submits that her claim is not specifically for lost income,
but rather for loss of income earning capacity, that is, the loss of a capital
asset. Evidence that a plaintiff’s income has not decreased is not necessarily
inconsistent with a loss of earning capacity.

[49]        
The factors to be considered in assessing the value of the impaired
asset were discussed in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393
(C.A.). There, the British Columbia Court of Appeal referred with approval to
the list set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at 356
(S.C.) as follows:

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

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

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

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

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

[50]        
In the present case, there is expert evidence from Louise Craig, who
carried out a functional capacity evaluation of Ms. Wepryk in November
2010. At page 4 of her report she wrote:

In summary, during this Functional
Capacity Evaluation Ms. Wepryk did not meet the physical demands of her
job as Hairstylist (NOC # 6271.1)…. In addition, her options for employment
outside her field, in view of her background and experience plus her physical
limitations, are reduced.

[51]        
There was also expert evidence from Niall Trainor, who carried out a
vocational rehabilitation assessment. He wrote at page 6 of his report:

With respect to her preferred
occupation of Hairstylist, she is less able to work full-time and her capacity
to take on as many clients is diminished.

On page 7 he wrote:

In view of the foregoing
discussion I would conclude that Ms Wepryk is less competitively employable
than she was previous to the accident. In other words, there are fewer
occupations open to her and she is a less attractive candidate for employment
than she would have been pre-morbidly.

[52]        
It should be noted, however, that in cross-examination Mr. Trainor
agreed that in preparing his report he had inaccurate information about Ms. Wepryk’s
actual work pattern before and after the accident. It was put to him, for
example, that Ms. Wepryk agreed from looking at her ledger for January
2008 that she worked an average of fewer than six hours per day that month, and
Mr. Trainor agreed that this was less than what she had told him. Similarly,
Ms. Wepryk’s ledger for January 2010 suggested that she worked ten to
eleven hours on January 11, 2010, whereas she had told Mr. Trainor that
she could not work more than six hours in a given day.

[53]        
The plaintiff testified that had it not been for the accident, her plan
had been to continue working two days per week at her home-based salon until
age 65, but that she would also consider working up to an additional two days
per week outside the home, either in a professional salon, or in some other
form of part-time work. She says that her functional impairment as a result of
the accident precludes her from realizing this opportunity.

[54]        
The defendants submit that the plaintiff’s past work history does not
support the inference that she would likely have worked more than two days per
week but for the accident. Her income tax records show that prior to the
accident, her only work outside of her home was some part-time work in 2006,
where she earned $1,486, and in 2007 for about $2,665. She had not prepared a
resume to show prospective employers, and she had not engaged in a concerted
effort to look for work in a professional salon. She made only one casual
inquiry in that regard, and the likelihood is that a professional salon would not
want to hire her on a part-time basis when she would effectively be competing
with them for clients as a result of her home-based business.

[55]        
Taking all the evidence into account, I find that some diminishment of
earning capacity has been made out, but it is far more modest than what is
claimed by the plaintiff. No one can know with certainty, of course, what the
plaintiff’s work pattern would have been if the accident had not happened, but
considering all the positive and negative contingencies, I assess that Ms. Wepryk
would likely have earned an additional $2,000 per year from the time of the
accident until she turned 60.

[56]        
I thus assess past wage loss at $7,000 for the three and one-half years
from the date of the accident to the date of trial.

[57]        
For future loss of earning capacity, I have the benefit of the report of
Robert Carson, an economist, whose report shows that the net present value of
$1,000 adjusted for the probability of survival from the date of trial until Ms. Wepryk
turns 60 is $11,361.

[58]        
Damages for future loss of earning capacity are therefore assessed at
$23,000.

Failure to Mitigate

[59]        
The defendants submit that any award of damages should be reduced by 15
to 20% for the plaintiff’s failure to mitigate her loss. It is suggested that
she could vary her work schedule to allow her to work more hours, and that she
could increase her fitness level by doing more exercises and perhaps try active
rehabilitation.

[60]        
I do not agree that there has been a failure to mitigate. I am not
satisfied that Ms. Wepryk would be able to work increased hours per week
if she changed her work schedule, nor am I satisfied that she has unreasonably
limited the extent of her exercise. Ms. Wepryk has tried various ways of
managing her pain and discomfort since the time of the accident. She has found
some things that work for her and many things that do not. For example, she
continues to do stretching exercises because she knows from her own experience
that they help. I believe that she is in the best position to know what works
for her in this regard, and I find that she has not made any unreasonable
choices. There has been, in this case, no failure to mitigate loss.

Cost of Future Care

[61]        
Niall Trainor testified that Ms. Wepryk’s employability would be
improved if she learned better pain-coping skills. He recommended a
multi-disciplinary pain program. The cost for those programs available range
from $4,000 to $20,000. Counsel for the plaintiff submits that a reasonable
award would be $10,000.

[62]        
The evidence before me provides no basis for concluding that Ms. Wepryk
has any inclination or desire to undertake such a multi-disciplinary pain
program. She was never asked about such a possibility in her testimony.

[63]        
That being the case, I can see no basis for making an award for the cost
of future care in the amount suggested by plaintiff’s counsel.

[64]        
Counsel for the defendants submitted that an award of $1,000 would be
suitable to allow the plaintiff to work with a qualified personal trainer. I
agree. There will be an award of $1,000 for the cost of future care.

Summary

[65]        
To summarize. Liability for the accident is admitted. The plaintiff is
awarded special damages of $2,937, non-pecuniary damages of $50,000, past wage
loss of $7,000, future loss of earning capacity of $23,000, and $1,000 for the
cost of future care.

[66]        
The plaintiff is entitled to her costs, unless there are circumstances
of which I am not aware, in which case the parties are at liberty to make
further submissions on costs.

The
Honourable Mr. Justice W.F. Ehrcke