IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120914

Docket: M105520

Registry:
New Westminster

Between:

Riechelle
Christine Hardychuk

Plaintiff

And

Rosanne Johnstone,
Nissan Canada Inc., also known as
Nissan Canada In., James Elliott McFarlane and
Karen Geraldine McFarlane

Defendants

Before:
The Honourable Madam Justice Dickson

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Riechelle Hardychuk, claims damages for personal injuries
sustained in a motor vehicle accident on May 20, 2006.  The defendants admit
liability but dispute the nature and extent of Ms. Hardychuk’s alleged
injuries and the amount of damages claimed.

[2]            
Ms. Hardychuk was a 20-year-old apprentice cabinetmaker employed at
a high-end custom woodworking business at the time of the accident.  Prior to
its occurrence she was in generally good health and led an active, busy
lifestyle.  Throughout most of her life Ms. Hardychuk functioned well and enjoyed
close relationships with family and friends, although in her late teens she
suffered a period of depression.  She enjoyed school, excelled in many sports
and looked forward to a career in cabinetmaking or construction with optimism
and pleasure.

[3]            
Ms. Hardychuk contends that, as a result of the accident, she
suffered soft tissue injuries to her neck, shoulders and upper back and a mild
traumatic brain injury.  Thereafter, she says she developed chronic pain in her
neck and back, headaches, anxiety and cognitive deficits such as difficulty
with memory and concentration.  In consequence, although she continued her
employment as a cabinetmaker for four years post-accident, Ms. Hardychuk
says that by October, 2010 she had to stop work due to the effects of her
injuries.  She has been unemployed since and says she is permanently partially
disabled vocationally, recreationally, and interpersonally.  She claims
substantial damages for pain and suffering, past and future loss of
housekeeping capacity, past and future loss of capacity to earn income, cost of
future care and special damages.

[4]            
The defendants accept that Ms. Hardychuk suffered soft tissue
injuries to her neck and back and a concussion in the accident.  They contend,
however, that she has seriously exaggerated the extent of her injuries and
their effect on her life and future prospects.  In particular, the defendants
deny that Ms. Hardychuk is physically, mentally or emotionally unable to
work as a cabinetmaker as a result of her injuries or that her personal life
has deteriorated to nearly the extent she alleges.  In so far as her condition
continues to be affected negatively by her injuries, they say it should improve
with further time and treatment.  In sum, they submit Ms. Hardychuk is
entitled to a moderate award for non-pecuniary damages and modest, if any,
awards under the other heads of damages claimed.

ISSUES

[5]            
The issues for determination are:

a)             
What was Ms. Hardychuk’s condition before and after the accident,
and why?

b)             
What is Ms. Hardychuk’s future prognosis?

c)              
What quantum of damages should be awarded to Ms. Hardychuk?

FACTS

Preliminary Comment on
Credibility and Reliability

[6]            
The credibility and reliability of Ms. Hardychuk’s account of her
condition before and after the accident are key issues for determination.  They
are also hotly contested by the parties.

[7]            
According to her counsel, Ms. Hardychuk was a sincere witness who
described significant post-accident changes in her physical, mental and emotional
health and functioning in a believable manner that was supported by the
testimony of knowledgeable others.  According to defence counsel, much of Ms. Hardychuk’s
testimony was inconsistent with her prior statements, common sense and the
testimony of disinterested third parties.  In addition, her subjective
complaints of pain are unsupported by objective evidence.  In the result,
defence counsel says Ms. Hardychuk’s account is not credible or reliable
and it should not be believed.

[8]            
The factors to be considered when assessing credibility were summarized
by Dillon J. in Bradshaw v. Stenner, 2010 BCSC 1398, as follows:

186      Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452,
50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various
factors such as the ability and opportunity to observe events, the firmness of
his memory, the ability to resist the influence of interest to modify his
recollection, whether the witness’ evidence harmonizes with independent
evidence that has been accepted, whether the witness changes his testimony
during direct and cross-examination, whether the witness’ testimony seems
unreasonable, impossible, or unlikely, whether a witness has a motive to lie,
and the demeanour of a witness generally (Wallace v. Davis, [1926] 31
O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.)
[Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[9]            
Where, as here, a plaintiff’s case relies on subjective symptoms with
little or no objective evidence of continuing injury the court must be
exceedingly careful in examining the evidence and assessing credibility: Price
v. Kostryba (1982), 70 B.C.L.R. 397.  If deliberate falsehood is established
it may be difficult to disentangle truth from deceit and some truthful aspects
of the plaintiff’s testimony may lose their force, particularly in the absence
of corroboration.  That being said, when a plaintiff is accused of deliberate
deceit more than speculation or innuendo is required.  A charge of deliberate
deceit under oath is a serious attack on an individual’s integrity which should
not be lightly treated or lightly made: Halteren v. Wilhelm, 2000
BCCA 2; Edmondson v. Payer, 2011 BCSC 118; Vasiliopoulos v.
Dosangh, 2008 BCCA 399.

[10]        
The typical starting point in a credibility assessment is to presume
truthfulness: Halteren.  Truthfulness and reliability are not, however,
necessarily the same.  A witness may sincerely attempt to be truthful but lack
the perceptive, recall or narrative capacity to provide reliable testimony. 
Alternatively, he or she may unconsciously indulge in the human tendency to
reconstruct and distort history in a manner that favours a desired outcome. 
There is, of course, also the possibility that a witness may choose,
consciously and deliberately, to lie out of perceived self-interest or for some
other reason.  Accordingly, when a witness’s evidence is demonstrably inaccurate
the challenge from an assessment perspective is to identify the likely reason for
the inaccuracy in a cautious, balanced and contextually sensitive way.

[11]        
The presumption of truthfulness will be displaced by convincing evidence
of deliberate falsehood.  Such evidence may take many forms.  There is no hard
and fast rule as to how falsehood on a plaintiff’s part may be demonstrated in
a personal injury action.  In my view, however, in most such cases fairness
will require that a plaintiff be given an opportunity to respond directly to an
assertion of deliberate untruthfulness before his or her credibility, as
distinct from reliability, is successfully impeached: R. v. Lyttle,
2004 SCC 5; Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.).

[12]        
If Ms. Hardychuk’s account of her pre and post-accident condition
is not convincing then the hypothesis upon which the expert opinions rest will
be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431. 
In consequence, the opinions proffered will have little, if any, evidentiary
value.  To varying extents, all of the experts who assessed Ms. Hardychuk
relied on her to describe or demonstrate her history and condition in a
truthful and reliable manner.  If she failed to do so, the resulting opinion
lacks foundation and is thus not entitled to weight.

[13]        
In this case I have found assessment of Ms. Hardychuk’s credibility
and reliability to be unusually challenging.  As her counsel points out, it is
inherently unlikely that she would consciously and deliberately mislead expert
assessors or the court on matters she must know could be easily recognised and
contradicted.  It is also unlikely she would attend upon multiple health care
practitioners or quit her job in an effort to build up a personal injury claim.
On the other hand, as defence counsel points out Ms. Hardychuk’s complaints
of pain and disability have improbably increased recently rather than stayed at
a plateau or improved and seem inconsistent with much of her earlier post-accident
performance.  In addition, she has said different things to different people at
different times about how she feels and what she can do.  She has also showed questionable
effort on recent tests administered by experts to measure her mental and
physical capacities.

[14]        
As discussed below, I conclude that Ms. Hardychuk’s account of her
pre and post-accident history and condition is in some respects unreliable. 
When testifying her memory was often extraordinarily poor, her evidence vague
and her prior statements occasionally inconsistent on non-trivial matters.  For
example, the cause of Ms. Hardychuk’s depressed mood is a significant
issue for determination.  She testified, however, that she did not recall taking
medication for depression in 2003, although clinical records reveal that she
did and she previously reported having done so to Dr. Schmidt, a
neuropsychologist.  She was also unable to recall other aspects of her health
history and claimed to suffer a current level of disability at odds with her post-accident
academic, vocational and recreational activities, as well as with objective
testing.

[15]        
In addition, Ms. Hardychuk’s demeanour in the witness stand was
occasionally argumentative and seemingly directed at making the case rather
than responding to questions.  For example, when defence counsel asked her to
confirm her high marks at B.C.I.T., earned post-accident, she replied at considerable
length about how some courses were “incredibly easy” and how frustrating it had
been for her to absorb new information.  She also volunteered that she probably
did well because of her practical experience and familiarity with the materials
and equipment.

[16]        
Further, Ms. Hardychuk repeatedly squirmed and changed position
when she was testifying in the witness stand.  Sometimes she crouched on her
knees to alleviate neck and back discomfort associated with prolonged sitting. 
Although I accept that, as she stated, Ms. Hardychuk found it
uncomfortable to sit and testify, her frequent movements had an extreme and
rather theatrical quality not apparent when she sat for prolonged periods in
other contexts such as lengthy meetings with experts.  They detracted from her
overall credibility, although only in a minor way.

[17]        
Despite the weaknesses in her testimony and presentation, however, I am
not persuaded that Ms. Hardychuk was deliberately untruthful.  This
proposition was not put to her directly, nor do I think it justified on the
evidence.  On the contrary, at least for the most part I conclude Ms. Hardychuk
has convinced herself that her physical, mental and emotional condition are in
the dire state she described and attempted to demonstrate throughout the course
of her testimony.  Although I do not accept her description as entirely
accurate, I find that she has exaggerated in a largely unconscious or, at
worst, semi-conscious way.  She has also retrospectively over-attributed some of
her difficulties to the effects of the accident.

[18]        
All things considered, I approach Ms. Hardychuk’s evidence with considerable
caution.  I do not, however, necessarily discount it, even where
uncorroborated, in making the factual findings set out below.

Before the Accident

[19]        
Ms. Hardychuk was born on March 26, 1986.  She grew up in North Delta,
British Columbia in a close and supportive family.  Her father is a fire
fighter.  Her mother works at Pacific Blue Cross.  She has one older brother.

[20]        
Ms. Hardychuk graduated with a grade 12 diploma from North Delta
Senior Secondary School in 2004.  She was a reasonably good student, although
her interests and aptitudes were primarily practical rather than academic in
orientation.  She was also an excellent athlete who played several sports at a
competitive level, including soccer and “Rep A” fast pitch baseball.  Recreationally,
she engaged in activities such as rollerblading, kickboxing and snowboarding. 
As she stated in her testimony, sports were, for Ms. Hardychuk, “a part of
me, who I was”.

[21]        
In addition to the physical benefits of sports, Ms. Hardychuk
thoroughly enjoyed the social aspects.  Her friends were similarly
sport-oriented and they spent much of their time together engaged in sporting
activities.

[22]        
Despite her generally good physical health, Ms. Hardychuk experienced
a period of depression in 2003 at the age of seventeen.  Unfortunately, the precise
nature and extent of that experience are difficult to discern on the evidence
presented at trial.  Ms. Hardychuk testified only to a vague recollection
of feeling depressed about a boyfriend and family conflict and denied any
recollection whatsoever of having taken antidepressant medication.  In
contrast, she said she recalled that her mood was negatively impacted by acne
medication.

[23]        
Ms. Hardychuk’s father, Shawn Hardychuk, and a close high school
friend, Joanna Vulcano, were also vague in their recollections regarding her
early experience with depression.  Her mother and family physician at the time,
Dr. Shokeir, did not testify.  Dr. Shokeir has since moved to another
province and produced her clinical records.  Accordingly, I do not draw a
negative inference with respect to her non-attendance as a witness.

[24]        
It is less clear why Ms. Hardychuk’s mother, Kim Beavan, did not
testify, and somewhat troubling.  This is particularly so given that Ms. Beavan
provided a collateral interview upon which Dr. Schmidt relied in
formulating his opinion regarding Ms. Hardychuk’s psychological condition. 
The absence of that aspect of the foundation upon which Dr. Schmidt’s
opinion is based reduces its evidentiary value.  I decline, however, to infer
that Ms. Beavan would likely have given unhelpful evidence with respect to
Ms. Hardychuk’s depressive episode in 2003.

[25]        
I am able to find some facts based on Ms. Hardychuk’s vague
recollections, her statements to Dr. Schmidt and Dr. Shokeir’s
clinical records.  Dr. Shokeir’s records were admitted on the basis
outlined by Metzger J. in Seaman v. Crook, 2003 BCSC 464, as proof of
the fact that the doctor made the recorded observations, prescribed the
recorded treatments and the patient made the recorded statements.

[26]        
When Ms. Hardychuk met with Dr. Shokeir in 2003 she was
sometimes accompanied by her mother.  Unless it is apparent on the face of the records
that it was Ms. Hardychuk and not her mother who made a particular
recorded statement, I consider such recordings to be potentially inadmissible hearsay
and do not take them into account in making my factual findings.

[27]        
In January, 2003 Dr. Shokeir treated Ms. Hardychuk for acne
and prescribed a drug known as Acutane.  Ms. Hardychuk found that the
Acutane made her feel depressed.  As a result, she stopped taking it.

[28]        
In May, 2003 Dr. Shokeir saw Ms. Hardychuk in connection with depressed
mood and prescribed Celexa, an antidepressant.  I am unable to identify the underlying
reason(s) for Ms. Hardychuk’s depression, although I accept that, as she
testified, relationship distress was a contributing factor.  There may have
been others.  Regardless of the cause(s), however, it is plain that Ms. Hardychuk
was treated for depression for several months with Celexa.  It is also plain
that her mood eventually improved in response.

[29]        
As of October, 2003, Ms. Hardychuk was still reporting symptoms such
as sadness, irritability, anxiety, crying and angry outbursts.  By December,
2003, she stopped taking the antidepressant medication for unexplained reasons
I cannot identify.

[30]        
Early in her high school career Ms. Hardychuk took a course in
woodworking, which she enjoyed thoroughly.  Thereafter, she also took courses
such as framing and carpentry.  In Grade 12, she participated in a house building
project and a practicum program at a cabinetmaking company in Langley.  That
company, Doug Harris Contracting, offered her an apprenticeship following her graduation
from high school.

[31]        
Ms. Hardychuk loved cabinet making, had a knack for it and wished
to pursue the trade as a long-term career option.  She enjoyed producing “cool
things”, was careful and detail-oriented, and responded naturally to working
with wood.  In these circumstances, she sensibly decided to enroll in the cabinetmaking
apprenticeship program at B.C.I.T. and accepted the job offer from Doug Harris
Contracting.

[32]        
The B.C.I.T. program takes four years to complete and involves both
course work and practical experience.  The course work is spread over the
entire four-year program and separated into four six-week blocks.

[33]        
In June, 2004 Ms. Hardychuk was hit by a car while rollerblading. 
She suffered scrapes and bruises, soft tissue injuries to her back and a possible
left rotator cuff injury.  In consequence, she missed a week of work and
attended for physiotherapy and massage for several months thereafter.  She
testified, and I accept, that by the time of the May 20, 2006 accident her
injuries from the rollerblading accident had largely resolved and she had
resumed all of her previous activities.  She had also successfully completed
the first block of her B.C.I.T. program with impressively high marks.

[34]        
In December, 2005 Ms. Hardychuk moved from Doug Harris to Hycraft Design
Custom Woodworks Ltd.:  a high-end woodworking business located on Annacis
Island.  There she continued with her cabinetmaking apprenticeship.  She was
the only female employee who worked at Hycraft in this capacity.  As a result
she was sometimes referred to as “girl”, which she tolerated.

[35]        
Ms. Hardychuk’s job description at Hycraft was a joiner.  Her
duties included layout, machine work, assembly and installation of items
constructed out of plastic, metal and wood.  She worked in the assembly area of
the plant.

[36]        
The work environment at Hycraft was competitive, upbeat and generally supportive. 
Ms. Hardychuk was a valued and capable employee who, for the most part,
maintained positive relationships with her work colleagues.  These included Rod
Dixon, a co-worker, Grant Smith, the foreman, and John Schmidt, Hycraft’s
owner, all of whom testified at trial.

[37]        
Messrs. Dixon and Schmidt were credible, objective, reliable
witnesses.  They were both familiar with Ms. Hardychuk’s job performance
before the accident and able to describe it in clear and balanced terms.  I
accept their descriptions as accurate and rely upon them.

[38]        
In contrast, Mr. Smith appeared to be defensive about his role in Ms. Hardychuk’s
departure from Hycraft and to allow his dissatisfaction with her immediate pre-departure
performance to colour his overall testimony.  He also refused to speak with Ms. Hardychuk’s
counsel prior to trial.  This conduct demonstrated partiality to the defence
and detracted from his credibility.

[39]        
Nevertheless, it emerged from the evidence of all three Hycraft
witnesses that Ms. Hardychuk showed considerable skill and promise as an
apprentice cabinetmaker.  It also emerged that before the accident she showed
no signs of mental or physical limitation or, in particular, back pain at work. 
Like all Hycraft employees, Ms. Hardychuk sometimes required assistance
with heavy lifting but she had ample physical strength and mental ability to
fulfill the job requirements without accommodation.  She worked hard,
progressed well, and earned the respect and confidence of her co-workers and
employer.

[40]        
Although she was reasonably healthy in the year preceding the accident, Dr. Shokeir’s
records reveal that Ms. Hardychuk complained of breathing problems in late
2005 and early 2006.  These problems led to concern that she may be suffering
from asthma with a possible anxiety component.  When testifying at trial, again
Ms. Hardychuk did not recall this aspect of her health history.  Nevertheless,
the clinical records show that shortly before the accident Dr. Shokeir
prescribed a puffer for her ongoing coughing complaints.

[41]        
In sum, before the accident Ms. Hardychuk was in generally good physical
and emotional health although she had a history of periodic problems in both
areas.  Nevertheless, she enjoyed a satisfying social and recreational life,
was physically and mentally fit and pursuing a career of interest and
aptitude.  Her long-term goal was to open a veneer shop of her own, and
possibly also to renovate and flip houses.  She further planned eventually to
marry and raise a family.  All of these goals were realistic and well within
her reach.

The Accident

[42]        
On May 20, 2006 at approximately 2:00 a.m. Ms. Hardychuk was a
seat-belted passenger in the right rear seat of a Ford Explorer driven by the
defendant, James McFarlane.  Mr. McFarlane was driving her and others home
after a social evening out.  As he proceeded through the intersection of Scott
Road and 72^nd Avenue his vehicle was “T-boned” by another, which ran
a red light and struck the front passenger side of the McFarlane vehicle.

[43]        
When the impact occurred, Ms. Hardychuk heard metal crunching.  Her
head hit the side window and she experienced a brief altered state of
consciousness.  Ms. Hardychuk testified, and I accept, that her
recollection of what transpired immediately after the impact is foggy and
patchy.  For example, she recalls a firefighter holding her neck at the
accident scene and aspects of the ambulance ride to the hospital.  She was,
however, disoriented and faded in and out for several hours thereafter.

[44]        
Ms. Hardychuk was able to provide accurate information regarding
her history to emergency personnel who attended upon her at the scene of the
accident.  According to Dr. Cameron, a neurologist whose evidence I accept,
this sort of conduct is not inconsistent with a concussive head injury.  Ms. Hardychuk
was transported by ambulance to Surrey Memorial Hospital.  There she was
examined and released to the care of her parents with a prescription for pain
medication.

[45]        
The McFarlane vehicle was written off.

After the Accident

[46]        
In the accident’s immediate aftermath, Ms. Hardychuk suffered a
huge lump on her head and a massive headache.  Within a few hours of its
occurrence, she also began to suffer sharp pain in her neck that travelled down
through her shoulder blades and into her back.  She felt dizzy, anxious, stiff
and sore all over her body.  She slept most of the next day and could hardly
move for three weeks.  Her sleep was often interrupted by pain and nightmares.

[47]        
On May 23, 2006 Ms. Hardychuk attended at Dr. Shokeir’s
office.  She described the accident and its effects, including neck, shoulder
and back pain, headaches, dizziness and short-term memory loss.  Dr. Shokeir
conducted a physical and mental examination.  Amongst other things, she noted
the range of motion in Ms. Hardychuk’s neck was limited to 50% in all
directions.  She recorded a diagnosis of mild concussion, whiplash and soft tissue
injuries, prescribed Naproxen (an anti-inflammatory), and recommended icing the
upper back and physiotherapy.

[48]        
Ms. Hardychuk continued to suffer from neck, shoulder and back
pain, frequent headaches and cognitive difficulties such as forgetfulness for
several months after the accident.  She saw Dr. Shokeir repeatedly
regarding these complaints and, on August 17, 2006, underwent a CT of her
head.  The results were normal.  She also attended for regular physiotherapy
and massage and followed Dr. Shokeir’s advice to stay active.  She worked
out at the gym regularly and gradually returned to her prior sporting
activities, including soccer and baseball.

[49]        
As she reported to Dr. Hershler, a physiatrist, by mid-July, 2006 Ms. Hardychuk
felt she was about 70% recovered from her injuries.  She had a full range of
motion in her head, neck, shoulders and back, but continued to experience
periodic headaches and neck and back pain and discomfort.  Her sleep also
continued to suffer; she felt nervous when driving; and she had occasional
nightmares.

[50]        
From mid-July 2006 onward, Ms. Hardychuk took muscle relaxants and
anti-inflammatories to help deal with the pain and discomfort caused by her
injuries.  She also attended for massage and physiotherapy, which provided
short-term relief.

[51]        
I find that Ms. Hardychuk’s own assessment of her 70% recovery by mid-July,
2006, as reported to Dr. Hershler, was generally accurate.  I also find that
it represented the early stage of a recovery plateau.  As discussed below, I am
satisfied that Ms. Hardychuk’s soft tissue injury symptoms never fully
resolved and she continues to experience back discomfort and occasional flares
in pain, as well as occasional headaches.  I am also satisfied that the
persistence of these symptoms has been frustrating, fatiguing and distressing
for Ms. Hardychuk.

[52]        
Although her condition improved marginally over the next two years, by
mid-2008 Ms. Hardychuk reached a plateau in her recovery.  Her levels of
pain and disability have not deteriorated significantly thereafter except in so
far as they were otherwise caused.

[53]        
Since reaching her plateau Ms. Hardychuk’s day-to-day experience of
discomfort, pain and limitation has been variable.  In her own words, she has
“good days and bad days” dependent in part on her activity level.  Heavy lifting
at work or prolonged participation in sports leaves her sore and stiff and she
tires more easily than she did before the accident.  Heavy housework can also
be difficult.  When she is tired, like most people, she has trouble focusing.

[54]        
Despite the foregoing, Ms. Hardychuk was able to resume the vast
majority of her former vocational, social and recreational pursuits within a
few months of the accident.  To do so, however, she required extra help and more
frequent breaks.  She also experienced discomfort and occasional flaring back
pain.  As noted, Ms. Hardychuk suffered some memory loss and other cognitive
deficit for several months immediately after the accident.  I find, however,
that those problems fully resolved.

[55]        
In reaching these conclusions I have considered the entire body of evidence,
including Ms. Hardychuk’s description of her condition and functioning.  Some
of that evidence is summarised below.  In particular, in addition to Ms. Hardychuk’s
testimony I have considered her satisfactory performance and progress at work
from July, 2006 until shortly before her departure from Hycraft, together with
her completion of extra side jobs including construction of her own kitchen
cabinets.  I have also considered her strong academic post-accident achievement
at B.C.I.T., her ongoing participation in travel and sports, and her prior statements
to various health care providers and assessors.

[56]        
In addition, I have considered the evidence of Ms. Hardychuk’s
father, Shawn Hardychuk, her roommate, Joanna Vulcano, and her co-worker, Rod
Dixon.  All three testified that Ms. Hardychuk’s activities, mental acuity
and comfort level noticeably reduced after the accident, and never fully returned. 
Although helpful, these witnesses were quite vague in their recollections and,
in the case of Ms. Vulcano and Mr. Dixon, spent limited time with Ms. Hardychuk
in the year or two immediately following the accident.  As a result, they were better
able to provide overall impressions rather than detailed accounts of the change
they observed.

[57]        
Further, I have considered the evidence of Messrs. Schmidt and Smith that
they were unaware of any serious health problems Ms. Hardychuk might be
experiencing in connection with performing her work duties.  As noted, given
his partiality to the defence Mr. Smith’s evidence was of limited value. 
He did, however, confirm that Ms. Hardychuk sometimes appeared to
experience back pain when she was at work.  On the other hand, Mr. Schmidt’s
lack of awareness that Ms. Hardychuk was suffering serious physical or
mental problems and his disappointment with her decision to leave Hycraft was far
more telling.

[58]        
Like Mr. Smith, Mr. Schmidt knew that Ms. Hardychuk occasionally
complained of back pain when working.  From his perspective, however, she
seemed to be doing pretty well most of the time and he learned of a slip in her
performance only shortly before she left Hycraft in October, 2010.  If long-standing
problems of the nature and magnitude Ms. Hardychuk described actually existed
at work one would expect her employer to know about them, investigate and take
steps to address the situation.  The fact that he did not contributes to my
view that Ms. Hardychuk has exaggerated and retrospectively
over-attributed some of her difficulties to her injuries.

[59]        
Further, to the extent I found it helpful and reliable I have taken into
account the expert evidence in making my factual findings.  As discussed below,
however, its value is limited by my concerns about the reliability of Ms. Hardychuk’s
reported history and the extent to which the opinions were founded on those
reports.  In a few instances, it is also limited by her questionable effort on
objective testing.

Post-Accident Medical
Treatment

[60]        
Dr. Shokeir closed her practice in the late summer of 2006. 
Thereafter, Ms. Hardychuk became a patient of Dr. Roy Rampersaud.  Her
first appointment with Dr. Rampersaud was on September 6, 2006.  By the
time he testified at trial, Ms. Hardychuk had attended upon Dr. Rampersaud
59 times.

[61]        
Dr. Rampersaud was a strikingly fair and balanced witness.  He
answered the questions put to him carefully and thoughtfully and maintained an objective
stance throughout.  In the course of testifying he confirmed that 37 of Ms. Hardychuk’s
59 visits included complaints associated with the accident, but of those 27
were also for other reasons and 22 did not involve complaints that were
accident-related.  Her accident-related complaints related primarily to ongoing
neck and back pain which would flare from time to time, as well as headaches.  Her
range of motion and flexibility in the neck and back area were consistently
normal.

[62]        
It is clear that Ms. Hardychuk does not hesitate to seek medical or
other attention with respect to her health concerns.  On the contrary, she is
careful to ensure that she obtains assessment, assistance and treatment
whenever such concerns might arise.  I intend no criticism in noting this
tendency.  I remark it, however, because it is inconsistent with the suggestion
that Ms. Hardychuk soldiered on stoically for four years and then finally
gave up work because she could no longer tolerate the pain.

[63]        
Dr. Rampersaud’s records reveal that Ms. Hardychuk’s accident-related
complaints were treated primarily with anti-inflammatory medication and
non-prescription analgesics, together with massage, physiotherapy and other
forms of complementary treatment.  For example, in January, 2007 he records
“going to massage and physioTx” and “pain controlled [with] Advil/Tylenol”.  In
January, 2008, he records “concerned re: ongoing back pain; exercising … try
massage tx – chiropractor”.  Thereafter, Dr. Rampersaud’s clinical records
include periodic references to massage, physiotherapy and acupuncture, as well
as prescriptions for anti-inflammatory medication and muscle relaxants.  Ms. Hardychuk
testified, and I accept, that she took these treatments and medications on an as-needed
basis.  She also testified, and I accept, that she stayed active and exercised
as recommended by her treatment providers.

[64]        
Ms. Hardychuk further testified that as time passed and her back pain
did not resolve she became concerned that she might need to change careers due
to her injuries.  From August, 2008 onward she occasionally expressed this
concern to Dr. Rampersaud, who noted it in his clinical records.  All things
considered, I accept that Ms. Hardychuk was genuinely concerned about the possible
impact of her back pain on her ability to continue working successfully as a
cabinetmaker.  I also find that she was consistently able to do so with minor modifications
despite her concerns.

[65]        
In September, 2009 Ms. Hardychuk had a flare-up of her back pain.  Her
range of motion was normal on examination, but she was tender over the upper
back and paraspinal muscles.  In November, 2009 Dr. Rampersaud referred Ms. Hardychuk
to Dr. Chu, a physiatrist.  For unknown reasons, she did not attend for an
appointment until a second referral was made in July, 2010.  Thereafter, she
began receiving treatment from Dr. Chu, which treatment apparently includes
injections Ms. Hardychuk described as helpful but very painful.

[66]        
Dr. Chu did not testify.  In these circumstances, I make no
findings in connection with the injections he administers except that Ms. Hardychuk
receives them and finds they provide pain relief.

[67]        
Dr. Rampersaud also confirmed that Ms. Hardychuk consulted him
regarding many health concerns with no connection to the accident.  For
example, in the year after its occurrence, amongst other things, she had her
tonsils removed and was referred to an infectious diseases specialist regarding
a spider bite.  Between 2006 and 2011 she also suffered several unrelated
injuries.  For example, in 2008 she sprained her ankle playing soccer, in 2009
she injured her knee in a fall, and in 2011 she suffered shin splints from
running on cement.

[68]        
In January, 2009 Ms. Hardychuk complained to Dr. Rampersaud
about low mood, lonely feelings and crying spells.  She also reported increased
stress and said she had consulted with a counsellor.  Surprisingly, she did not
inform Dr. Rampersaud that in 2003 she had been successfully treated for
depression with Celexa.  Nevertheless, Dr. Rampersaud prescribed Celexa
and by June, 2009 Ms. Hardychuk’s mood had improved considerably.  Since
then, he has also prescribed another antidepressant known as Pristiq and Ativan
for anxiety.  He recently referred Ms. Hardychuk to see a psychiatrist.

[69]        
On November 16, 2010 Ms. Hardychuk told Dr. Rampersaud she was
laid off of work due to her chronic pain.  She made similar statements to other
experts, including Dr. Cameron, Dr. Powers, and Mr. McNeil.

Post-Accident Social Life

[70]        
Ms. Hardychuk was living at home with her parents when the accident
happened.  At the time, she had a boyfriend named Jayce whom she had known since
high school.  That relationship ended three months after the accident.  Jayce
did not testify.  Although in her testimony Ms. Hardychuk attributed the
break-up to the accident, I make no findings as to why the relationship came to
an end.

[71]        
Ms. Hardychuk gradually returned to most of her previous social and
sporting shortly after the accident.  These include, amongst others, soccer,
baseball, and snowboarding.  Since the accident she has worked out regularly at
the gym, as recommended by her treatment providers.  She has also travelled to
the Philippines and the Bahamas with friends.

[72]        
Ms. Hardychuk testified that she feels nervous and anxious when driving
since the accident.  I accept this assertion, but find such feelings are
fleeting and do not affect her driving or other habits in any way.

[73]        
In the spring of 2007 Ms. Hardychuk moved into a house that she
purchased with her parents.  They planned to renovate and sell it for profit.  Ms. Hardychuk
built kitchen cabinets, but did not help with other renovations to the extent and
at the pace all concerned had expected.  As matters unfolded, she continued to
live there and they have earned rental income instead of selling the house.  In
September, 2009 Ms. Vulcano moved in and became Ms. Hardychuk’s
roommate.

[74]        
On July 17, 2007 Ms. Hardychuk attended for a follow-up visit with Dr. Hershler. 
She told him that she had recently moved into the new house and was independent
in activities of basic living.  She also said that heavy tasks affect her more
than they did before the accident.  In contrast, however, at trial she
testified that she cannot do most housework or yard work because of her back pain. 
She also testified her mother and Ms. Vulcano do almost all such work.  Ms. Vulcano
testified to similar effect.

[75]        
I am not persuaded that Ms. Hardychuk is able to perform only very limited
housework or yard work.  Her statement to Dr. Hershler is inconsistent
with this claim.  In addition, she was able to work as a cabinetmaker for four
years after the accident and managed successfully without a roommate for about
two years.  Further, Ms. Vulcano’s evidence on the point was general and
included assumptions about what Ms. Hardychuk’s mother did in her
absence.  Ms. Hardychuk’s mother did not testify.

[76]        
On the other hand, I accept that Ms. Hardychuk finds heavy
housework more difficult that she did before the accident.  As a result, she performs
the tasks more slowly and sometimes feels stiff and sore afterwards.  I also
accept that Ms. Hardychuk’s mother helps her out from time to time and Ms. Vulcano
does rather more than her fair share around the house.

[77]        
Matt Corrin also testified as a witness.  He was involved romantically
with Ms. Hardychuk from May to October, 2009 and lived in the house for
about a month near the end of their relationship.  Mr. Corrin was not
acquainted with Ms. Hardychuk before the accident, but knew she had been
in one at some point.  He also knew that she suffered back pain and discomfort,
which he thought contributed to relationship problems involving Ms. Hardychuk’s
temper, energy and activity level.  As with Jayce, Ms. Hardychuk
attributed the failure of her relationship with Mr. Corrin to the effects
of her injuries.

[78]        
Like Ms. Vulcano, Mr. Corrin’s recollections of Ms. Hardychuk’s
condition and conduct were quite general and impressionistic.  Based on his
testimony, Ms. Vulcano’s and that of Ms. Hardychuk I am satisfied Ms. Hardychuk
was often irritable and moody.  All things considered, however, I make no
findings as to the reasons her relationship with Mr. Corrin failed.

Post-Accident Work Life

[79]        
Ms. Hardychuk missed three weeks of work at Hycraft immediately
after the accident.  When she returned she performed light duties for a few
weeks and was frequently assisted by co-workers.  For several months thereafter
she found it difficult to read and follow plans because of problems with memory
and concentration and headaches.  She also found it painful to perform the
job’s physical demands, which frequently caused her neck, shoulder and back pain
to flare.  As a result, she often felt irritable and tired at work.

[80]        
Ms. Hardychuk testified that she never returned to performing full
duties at Hycraft following the accident.  She made similar statements to some
of the experts.  I do not accept this assertion as accurate.  It is
inconsistent with her statement to Dr. Herschler that she had been performing
regular work since late June, 2006.  It is also inconsistent with the testimony
of Messrs. Dixon, Schmidt and Smith.

[81]        
I find that Ms. Hardychuk returned to performing the full duties of
her job within approximately two months of the accident.  This is not to say that
her work life was entirely unaffected by her injuries from that point on.  It
was not.  After she reached her recovery plateau, she required more assistance
with heavy lifting than she did before the accident.  She also took more breaks
and suffered intermittent flares of back pain when working.  This pattern
continued throughout the time she was employed at Hycraft.

[82]        
As Mr. Smith testified, all Hycraft employees occasionally assist
one another with heavy lifting.  As Mr. Dixon testified, however, Ms. Hardychuk’s
need for assistance with lifting increased after the accident.  In addition,
her co-workers occasionally gave her back massages when she complained of pain,
which she did every few months, and she took more breaks to maintain her
stamina.  With these modifications, however, Ms. Hardychuk was able to perform
her job well, repeatedly received pay raises and progressed in skills and
responsibility.

[83]        
Ms. Hardychuk was also able to complete “side jobs” after regular work
hours in the years after the accident.  Unfortunately, the evidence on this
point was decidedly vague.  As a result, I am unable to make detailed findings
as to what she did and when except to note that one of her side jobs was
construction of kitchen cabinets for the house she owns with her parents. 
Although I accept that she turned down other possible side jobs I cannot make
detailed findings as to how many or when.

[84]        
Ms. Hardychuck was further able successfully to complete the
remaining three blocks of her B.C.I.T. coursework after the accident and
receive her provincial certification.  Her course marks were excellent,
although she sometimes became sore and tired after prolonged studying.  She did
not pass the “Red Seal” exam for cross-Canada certification when she recently attempted
to do so.  Not surprisingly, she felt disappointed and discouraged as a result.

[85]        
The circumstances surrounding Ms. Hardychuk’s departure from
Hycraft are contentious.  Ms. Hardychuk testified that she left due to her
ongoing chronic pain and its negative impact upon her job performance.  Defence
counsel asserts that she chose to leave for unrelated reasons, perhaps involving
a loss of interest in the trade.

[86]        
I conclude that Ms. Hardychuk’s attitude, performance and
productivity at Hycraft began to slip in the late spring of 2010.  I do not
accept that she lost interest in cabinetmaking except in so far as she generally
lost interest in most activities as part of a depressed mood.  I accept that
her mood was persistently low and depressed from mid-2009 onward, but am not
persuaded this was associated with her soft tissue injury symptoms.  I also accept
that she found work stressful.  This was due in large measure to conflict with
her foreman, Mr. Smith.

[87]        
Ms. Hardychuk’s physical condition did not change significantly in
the spring of 2010.  On the contrary, the level of back pain and discomfort she
experienced remained essentially as the same as they had been since she reached
her recovery plateau.

[88]        
Mr. Smith was aware of the slip in Ms. Hardychuk’s job
performance.  He responded negatively, which contributed to the growing tension
and animosity between the two.  He also confronted Ms. Hardychuk in an
inappropriate manner about a personal relationship and openly criticized her to
others.  Ms. Hardychuk was understandably distressed and angry.  In
reaction, she went to Mr. Schmidt on October, 2010 and announced the job
was not working out for her.  In the course of so doing, she also informed him that
she believed her productivity had been slipping.

[89]        
Mr. Schmidt accepted Ms. Hardychuk’s statements and laid her
off, although he was disappointed by her decision to leave Hycraft.  Prior to
her announcement in October 2010, he was not concerned about Ms. Hardychuk’s
job performance.  She had not previously expressed such concerns, nor had she
sought special accommodations for physical or mental problems in performing her
work.

[90]        
Between October 2010 and the trial Ms. Hardychuk was unemployed.

June 29, 2011 Accident

[91]        
On June 29, 2011 Ms. Hardychuk was in another motor vehicle
accident.  She was a passenger in a vehicle travelling on the highway en route
to Penticton.  Her friend was driving, veered to avoid a deer and lost
control.  The car flipped and landed in a field.

[92]        
Ms. Hardychuk testified, and I accept, that she was injured in the
June 29, 2011 accident.  In its immediate aftermath, her existing condition was
seriously aggravated and her symptoms of pain and mental compromise regressed
to a similar state to that immediately following the accident of May 20, 2006.

[93]        
I am unable to make any detailed findings regarding the precise nature
or extent of Ms. Hardychuk’s aggravated condition after the June 29, 2011
accident.  This is so because of the paucity and generality of the evidence presented
regarding her injuries.  As I understand it from her testimony they include a
possible concussion.

Expert Evidence

Dr. Rampersaud

[94]        
Ms. Hardychuk’s family physician, Dr. Rampersaud, provided expert
opinion as well as factual evidence.  In his opinion, Ms. Hardychuk
suffered from a mild concussion, whiplash and soft tissue injuries to her neck
and upper back as a result of the accident.  He also opined that in the past
few years these injuries developed into a widespread chronic pain syndrome with
headaches and psychological effects such as decreased memory, labile mood and
anxiety.

[95]        
Dr. Rampersaud went on to opine that it is unlikely Ms. Hardychuk’s
headaches and back pain will fully resolve in the future.  In his view, both
will likely affect her recreational activities and she will require assistance
with heavy and seasonal household and yard work.  He further opined that her
injuries will likely affect future employment opportunities as constant
moderate to heavy physical work will aggravate her symptoms.  In consequence, in
his view it is likely Ms. Hardychuk will be unable to pursue cabinetmaking
and will need job retraining in a less physically demanding job.  It is also
likely that she will require intermittent physiotherapy and massage to help her
cope with flare-ups of back pain.

[96]        
Dr. Rampersaud’s opinion rests largely upon Ms. Hardychuk’s
reported symptoms and functioning, together with his ongoing examinations.  The
history included her reports to the effect that she had been on light duties at
work since the accident and had limited ability to participate in sports.

[97]        
As noted, Dr. Rampersaud did not know that Ms. Hardychuk was
treated for depression in 2003.  Although he is familiar with the symptoms of post-traumatic
stress disorder he did not note them in his records or make this diagnosis.

[98]        
In his October 28, 2010 report, Dr. Rampersaud provided helpful general
information regarding the likely resolution of soft tissue injuries in most
cases.  He wrote:

In the majority of people, soft
tissue injuries resolve without sequelae in a finite period of time.  A review
of the medical literature states that 21%-45% of patients with a whiplash type
injury will be symptomatic at two years.  Another study concluded that “after
two years, symptoms did not alter with further passage of time.”  However,
another study did reveal that a small percentage of people did continue to
improve after two years (ie., 22% of patients with soft tissue injury of the
cervical spine had significant pain at two years, which decreased to 18% at
three years and 14% at five years).

Dr. Hershler

[99]        
Dr. Hershler is a physiatrist.  He saw Ms. Hardychuk for
assessment on July 17, 2006 and July 17, 2007.  On both occasions he
conducted a physical examination, the results of which were identical.  They
included findings that: movements of Ms. Hardychuk’s lumbar spine were full
and normal; head and neck movements were full with respect to range, with
palpation eliciting pain in the lower region and the cervical spine and tender
points in the upper right trapezius, but otherwise normal; full shoulder
movements and neck and shoulder girdle strength was strong; strong handgrips
and normal fine motor coordination; normal head and face; normal neurological
examination; normal tone, deep tendon reflexes, strength, sensation and
coordination; and excellent reflexes in all extremities.

[100]     Ms. Hardychuk
appeared to be anxious when Dr. Hershler assessed her.  She complained of
ongoing neck, shoulder and back pain and tightness, fatigue, increased
moodiness, and difficulty with memory.  As noted, in July, 2006 she estimated
her recovery level at 70%.  In July, 2007 she estimated it at 60%.

[101]     Based on her
reported history and presentation, Dr. Hershler concluded that Ms. Hardychuk
sustained musculo-ligamentous injury to her neck with ligament tenderness in
the cervical spine and muscle tenderness in the right upper trapezuis.  In his
view, this is the most likely reason for her persistent neck pain and
headaches.  He also diagnosed post-traumatic anxiety and post-traumatic
concussion resulting in impaired short-term memory, difficulty with immediate
recall, and problems with concentration and focus.

[102]     As of July
17, 2007, Dr. Hershler opined that Ms. Hardychuk’s prognosis for
recovery was guarded.  He thought it unlikely that her symptoms would disappear
in the near future and she would likely be symptomatic for a further two
years.  He recommended that she continue with a regular exercise regimen.  He
also recommended physiotherapy, massage and psychological counseling for
anxiety and stress.

Dr. Cameron

[103]     Dr. Cameron
is a neurologist.  He saw Ms. Hardychuk for assessment on August 22, 2006
and April 7, 2011.  On both occasions he performed a neurological and a physical
examination.  In August, 2006 the results of both were entirely normal.  For
example, on both Ms. Hardychuk showed normal tone, bulk and power in all extremities. 
In contrast, in April, 2011 although her neurological examination was normal she
exhibited decreased range of movement of her neck due to a complaint of pain.

[104]     Ms. Hardychuk’s
principle complaints to Dr. Cameron were physical and subjective in
nature.  In addition to complaints of ongoing neck, shoulder and back pain, she
complained of headaches, decreased concentration and memory, irritability and
mood swings.

[105]     Based on
her reported history and presentation, Dr. Cameron concluded that Ms. Hardychuk
suffered soft tissue injuries and a mild traumatic brain injury or concussion
in the accident.  For several months thereafter she suffered cognitive problems
such as decreased concentration, memory and information processing in part due
to residual effects of her mild traumatic brain injury and in part due to pain
and discomfort associated with her physical injuries and developing psychological
problems.  In Dr. Cameron’s opinion, however, after the first few months post-accident
any cognitive problems Ms. Hardychuk experienced were due to chronic pain
and emotional dysfunction rather than the traumatic brain injury.  In
particular, in his view Ms. Hardychuk is probably not suffering with
long-term residual cognitive deficits as a result of her mild traumatic brain
injury.

[106]     In
explaining his opinion as to why Ms. Hardychuk continues to report cognitive
deficits Dr. Cameron noted that depressive symptoms can develop gradually
after an injury.  When this happens, the injured person may describe the
physical pain as increasing rather than decreasing over time.  This occurs
because the perception of pain is compounded by the depression and it may
become challenging to sort out the degree to which psychological factors are a
contributing factor.  That being said, on cross-examination Dr. Cameron
agreed that Ms. Hardychuk’s complaints of musculoskeletal pain five years
after the accident “raise questions”.

Dr. Schmidt

[107]     Dr. Schmidt
is a neuropsychologist.  He saw Ms. Hardychuk for assessment on January 10
and 18, 2007 and August 26, 2010.  Following those assessments he wrote a report
dated May 11, 2007 and a follow-up report dated September 22, 2010.

[108]     In
conducting his initial assessment Dr. Schmidt reviewed the ambulance crew
report of May 20, 2006, Dr. Hershler’s report of July 17, 2006, and Dr. Cameron’s
report of October 11, 2006.  He also interviewed Ms. Hardychuk and her
mother, Kim Beavan, and performed neuropsychological testing.  As he remarked
in his May 11, 2007 report, Dr. Schmidt was provided access to only
limited records.  In particular, he did not review any educational or
vocational records.  In addition, he did not review any medical records from
prior to the accident.

[109]     In
conducting his follow-up assessment in August, 2010, Dr. Schmidt
interviewed Ms. Hardychuk again and performed further neuropsychological
testing.  On this occasion he had access to a greater volume of records.  Some
of them were placed before the court; others were not.  Included in the package
he reviewed were Dr. Rampersaud’s clinical records from September, 2006 to
July, 2010 and a report from Dr. Shokeir.  Dr. Shokeir’s report was
not placed before the court at trial.  Her clinical records were apparently not
provided to Dr. Schmidt.

[110]     At the
initial assessment Ms. Hardychuk told Dr. Schmidt that she took
anti-depressant medication when she was 13 years old, but he had no further
information on this aspect of her history.  As part of the foundation of his
report, he assumed that she had no pre-accident psychological problems.  Ms. Hardychuk
described the accident and her experience of pain and functional limitation
thereafter, including complaints of memory, concentration and attention
difficulties.  She also described the presence of intrusive nightmares,
together with ongoing mood and sleep disruption.

[111]     In 2007 Dr. Schmidt
found no evidence of cognitive impairment or deficit on objective testing.  His
findings in this regard were substantially the same when he conducted the 2010
reassessment.

[112]     Following
the 2007 assessment, taking into account her reported history, together with cognitive
and personality testing, Dr. Schmidt concluded that Ms. Hardychuk
suffered from post-traumatic stress disorder and a mild traumatic brain injury
as a result of the accident.  He noted the presence of some generalized
anxiety, but opined that she did not then show a significant mood disorder. 
Rather, in Dr. Schmidt’s view it appeared that Ms. Hardychuk’s post-traumatic
stress disorder was “well encapsulated” and had not evolved into more widespread
emotional disruption.

[113]     By the
August 2010 reassessment Ms. Hardychuk’s presentation had noticeably deteriorated. 
Although her reported post-traumatic stress disorder symptoms had reduced, she
continued to complain of poor memory and concentration, as well as intensified
pain, anxiety and depression.  Dr. Schmidt administered several
neuropsychological tests, none of which revealed any cognitive deficits.  On
one test, however, three of Ms. Hardychuk’s scores were below the cut off,
which the test manual provides indicates an underestimation of actual abilities
owing to poor effort.  On two other tests Ms. Hardychuk’s results yielded
invalid profiles.  On a personality test, Ms. Hardychuk’s response pattern
was consistent with possible exaggeration.

[114]     Dr. Schmidt
opined that, as of August, 2010, Ms. Hardychuk’s difficulties with
cognitive functioning were a manifestation of the effects of pain, anxiety and
reduced frustration tolerance.  He also opined that her low mood likely
explained the test results on which she appeared to make a poor effort.  He
went on to say that since 2007 Ms. Hardychuk’s acute symptoms of post-traumatic
stress disorder had improved, but her general emotional state had deteriorated,
with higher levels of depression, anxiety and rumination.  He stated further
that Ms. Hardychuk’s perceptions and coping mechanisms are not optimal and
could interfere with her ability effectively to deal with her ongoing pain.  He
strongly recommended psychological intervention.

[115]     Dr. Schmidt
went on to describe Ms. Hardychuk’s prognosis as guarded.  In his view,
her prospects for improvement are largely dependent on whether she receives and
benefits from further treatment interventions in the future.

Dr. Powers

[116]     Dr. Powers
is a vocational rehabilitation consultant.  He saw Ms. Hardychuk for
assessment on April 26, 2011 and prepared a report dated April 30, 2011 on his
findings and opinion.

[117]     In
conducting his assessment Dr. Powers interviewed Ms. Hardychuk and,
with an assistant, administered vocational testing.  Paragraphs 27 and 28 of
the April 30, 2011 report include observations of Ms. Hardychuk made by
his assistant, Ms. Eyrl.  Ms. Eyrl did not testify.  Accordingly, I
have disregarded those portions of the report as they constitute inadmissible
hearsay.

[118]     In
addition to interviewing Ms. Hardychuk and conducting testing, Dr. Powers
reviewed several reports authored by other experts.  He did not, however, have
access to Ms. Hardychuk’s school records and was thus unable to compare
her post-accident performance on testing to her pre-accident baseline.  That
being said, her cognitive and aptitude testing produced scores that were
generally within the average or low average range, with a few in the superior
range.  Her top four interest areas were identified as carpentry, medical service,
writing and electronics.

[119]     As part of
the foundation for his opinion, Dr. Powers assumed that Ms. Hardychuk
continues to suffer from headaches, anxiety and depression in addition to
chronic neck and back pain as a result of her soft tissue injuries.  He also
assumed that, after the accident, she returned to work as a cabinetmaker on
light duties in an accommodated capacity until October 2010.  He further
assumed that Ms. Hardychuk stopped working as a cabinetmaker because she
was physically and cognitively unable to maintain competitive employment.

[120]     Based on
the foregoing assumptions Dr. Powers opined that Ms. Hardychuk is
competitively unemployable for the foreseeable future, at least until her
medical condition improves substantially.  He also opined that she should
attend a chronic pain management program, participate in vocational
rehabilitation and retrain for less physically demanding work, preferably in a
job training rather than formal educational setting.

Mr. McNeil

[121]     Mr. Russell
McNeil is an occupational therapist and certified work capacity evaluator.  He
saw Ms. Hardychuk on April 28, 2011 for assessment of her work capacity
and other functional abilities.  Mr. McNeil performed a full day of
physical testing, interviewed Ms. Hardychuk and reviewed reports and
records of other experts.  He prepared a report dated May 15, 2011setting out
his findings, opinion and recommendations for care.

[122]     Mr. McNeil
expressed the view that Ms. Hardychuk showed high levels of effort
throughout the testing he administered.  Given the results, this view is, at
best, surprising.  On virtually all of the tests Ms. Hardychuk performed
at below average levels for her age and sex; in other words, she demonstrated
less strength, less endurance, less ability to sit, less ability to walk, less
ability to lift, push, pull and carry than an average woman of her age.  On one
of the tests she scored at the first percentile.  Although Ms. Hardychuk
misinformed Mr. McNeil about the extent of her post-accident employment
and recreational activities, he knew she was able to work as a cabinetmaker for
four years.

[123]     Mr. NcNeil
opined that Ms. Hardychuk did not have the physical strength or stamina to
perform her previous work as a cabinetmaker on a full or even part-time basis. 
Taking into account the many restrictions he identified in her capacity for
activity he concluded that her vocational alternatives are extremely limited. 
He also concluded that Ms. Hardychuk demonstrated many restrictions in her
ability to perform tasks involving home and yard maintenance.  He went on to
recommend a wide range of interventions and supports to assist her functioning
in regular activities.

CAUSATION

Legal Framework

[124]     The
plaintiff must establish on a balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury to justify
compensation.  The defendant’s negligence need not be the sole cause of the
injury so long as it is part of the cause beyond the range of de minimus.
Causation need not be determined by scientific precision: Athey v. Leonati,
[1996] 3 S.C.R. 458.

[125]     The
primary test for causation is the “but-for” test:  but for the defendant’s
negligence would the plaintiff have suffered the injury?  In exceptional
circumstances (which do not arise in this case), the “material contribution”
test may be applied.  The “but-for” test recognizes that the plaintiff is
entitled to compensation for negligent conduct only where there is a
substantial connection between the injury in question and the defendant’s
conduct: Resurfice Corp. v. Hanke, 2007 SCC 7.

[126]     Causation
must be established on a balance of probabilities before the court proceeds to
assess damages.  As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58:

78.       It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort.  The rules of causation consider generally whether “but
for” the defendant’s acts, the plaintiff’s damages would have been incurred on
a balance of probabilities.  Even though there may be several tortious and
non-tortious causes of injury, so long as the defendant’s act is a cause of the
plaintiff’s damage, the defendant is fully liable for that damage. The rules of
damages then consider what the original position of the plaintiff would have
been.  The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: [Athey]…

[127]     The
essential purpose of tort law is to place the plaintiff in the position he or
she would have occupied but for the defendant’s negligence.  For this reason the
defendant must take the plaintiff as he or she is found, even if the
plaintiff’s injuries are more severe than they would be for a normal person
(the “thin skull rule”).  On the other hand, the defendant need not compensate
the plaintiff for any debilitating effects of a pre-existing condition which
the plaintiff would have experienced in any event (the “crumbling skull rule”):
 Athey.

[128]     Where the
plaintiff’s injuries have multiple causes a question arises as to whether the
injuries are divisible or indivisible.  Divisible injuries can be separated so
that their damages can be assessed independently.  In contrast, indivisible
injuries cannot be separated: Bradley v. Groves, 2010 BCCA 361.

[129]     If an
injury is divisible, the plaintiff can recover from a particular defendant only
the damages attributable to the injury caused or contributed to by that
defendant.  If the injury is indivisible, the plaintiff can recover from the
defendant all of the damages attributable to the injury regardless of the
contribution made by others.  In each case, the determination will depend upon
the facts found based on the evidence.  In some cases of earlier and later
injury in the same region of the body, the injuries may be divisible.  In
others, it may be impossible for the worsening of an injury to be divided up:  Athey;
Bradley.

[130]     Causation
is sometimes asserted based primarily on a temporal relationship between the
negligent conduct and injury in question.  In such cases, close scrutiny of the
evidence is required because the inference from a temporal sequence to a causal
connection is not always reliable: White v. Stonestreet, 2006 BCSC 801.

Psychological Injury

[131]     Cases
involving alleged psychological injuries require particularly close scrutiny of
the evidence.  As Newbury J.A. remarked in Sandegren v. Hardy (1999), 67
B.C.L.R. (3d) 123, claims of debilitating pain that persists long past the
usual recovery period are notoriously difficult for the court to assess.

[132]     Mr. Justice
Lambert summarized the principles to be applied in assessing claims of
psychological injury in Yoshikawa v. Yoshikawa and Yu (1996), 21 B.C.L.R.
(3d) 318:

12.       It is important to understand what is established
and what is not established by the decision in Maslen v. Rubenstein. 
I propose to set out a number of principles extracted from the reasons of Mr. Justice
Taylor, for the Court, in the Maslen case.  The first point is a
preliminary point and appears in Maslen at p. 133 under the heading
“(a) The Background”:

1.         The plaintiff must
establish that the pain, discomfort or weakness is “real” in the sense that the
victim genuinely experiences it.

The remaining ten points are drawn from the part of the
reasons headed “(b) The Basic Principles” at pp. 134 to 137:

2.         The plaintiff must
establish that his or her psychological problems have their cause in the
defendant’s unlawful act.

3.         The plaintiff’s psychological
problems do not have their cause in the defendant’s unlawful act if they arise
from a desire on the plaintiff’s part for such things as care, sympathy,
relaxation or compensation.

4.         The plaintiff’s
psychological problems do not have their cause in the defendant’s unlawful
wrongful act if the plaintiff could be expected to overcome them by his or her
own inherent resources, or “will-power”.

5.         If psychological
problems exist, or continue, because the plaintiff for some reason wishes to
have them, or does not wish to end, their existence or continuation must be
said to have a subjective, or internal, cause. (NOTE: I consider that this
proposition must deal with the conscious mind, otherwise it seems to me to beg
the question; see my first observation, later in this Part of these reasons.)

6.         If a court could not say
whether the plaintiff really desired to be free of the psychological problems,
the plaintiff would not have established his or her case on the critical issue
of causation.

7.         Any question of
mitigation, or failure to mitigate, arises only after causation has been
established.

8.         It is not sufficient to
ask whether a psychological condition such as “chronic, benign pain syndrome”
is “compensable”.  Such a psychological condition may be compensable or it
may not.  The identification of the symptoms as “chronic benign pain
syndrome” does not resolve the questions of legal liability or the question of
assessment of damages.

9.         It is unlikely that
medical practitioners can answer, as matters of expert opinion, the ultimate
questions on which these cases often turn.

10.       Mr. Justice Spencer,
at trial in the Maslen case, put the overall test quite correctly in these
words:

[C]hronic benign pain syndrome will
attract damages … where the plaintiff’s condition is caused by the defendant
and is not something within her control to prevent.  If it is true of a
chronic benign pain syndrome, then it will be true also of other
psychologically-caused suffering where the psychological mechanism, whatever it
is, is beyond the plaintiff’s power to control and was set in motion by the
defendant’s fault.

11.       There must be evidence of
a “convincing” nature to overcome the improbability that pain will continue, in
the absence of objective symptoms, well beyond the recovery period, but the
plaintiff’s own evidence, if consistent with the surrounding circumstances, may
nevertheless suffice for the purpose.

…

13.       I am sure Mr. Justice Taylor did not consider
that the “basic” principles which he set out exhausted all the possibilities
for the application of principle to the difficult problems in these
cases.  The general principles which apply in relation to causation in law
will apply to psychological injury as they apply to physical injury.

Discussion

[133]     Ms. Hardychuk
submits that she suffered serious and permanent injuries as a result of the
accident.  These include soft tissue injuries her to neck, shoulders and back
leading to chronic pain, frequent headaches, cognitive deficits and psychological
dysfunction.  She also submits that she suffered post-traumatic stress disorder
and a mild traumatic brain injury.

[134]     According
to Ms. Hardychuk the symptoms of her injuries are widespread and seriously
debilitating.  They include daily back discomfort and pain, frequent headaches,
reduced physical strength and stamina, cognitive deficits such as decreased
memory and focus, and ongoing depression and anxiety.  In her submission, these
symptoms are all real in the sense that she genuinely experiences them, cannot
overcome them by willpower and does not wish them to continue.  But for the
accident, she says they would not be present and the damages she has suffered would
not have been incurred.

[135]     Defence
counsel responds that Ms. Hardychuk has seriously exaggerated the nature and
extent of the symptoms she suffers in connection with her soft tissue
injuries.  She has also failed to prove that she suffered post-traumatic stress
disorder or a mild traumatic brain injury as a result of the accident.

[136]     I have
concluded that Ms. Hardychuk’s description of her physical, mental and
emotional condition is exaggerated, although she has convinced herself
otherwise.  The reasons for this conclusion are outlined above and need not be repeated
here.  Although I accept that Ms. Hardychuk suffers from ongoing symptoms
associated with her soft tissue injuries, I do not accept that she genuinely
experiences them in the moment as intensely as she described in her testimony or
that they are nearly so debilitating as she now claims.

[137]     In sum, I
am satisfied that Ms. Hardychuk suffered soft tissue injuries to her neck,
shoulders and back which reached a recovery plateau within two years of the
accident, leaving her with residual symptoms of back discomfort, occasional
flaring pain and periodic headaches.  The persistence of these symptoms has frustrated
and sometimes fatigued Ms. Hardychuk, but it has not prevented her from
resuming her vocational and other activities.  Their persistence also did not
trigger or evolve into a mood disorder nor do they interfere with her cognitive
capabilities.

[138]     I accept
that Ms. Hardychuk suffers from depression, anxiety and emotional
dysfunction.  The cause and onset of these conditions is unclear on the
evidence presented, however, although they have apparently been notable since
early 2009.  In particular, I am not persuaded that there is a substantial connection
between Ms. Hardychuk’s mood disorder symptoms and her accident-related
injuries.  On the other hand, I am satisfied that she suffered a mild traumatic
brain injury and post-traumatic stress disorder as a result of the accident,
the symptoms of which have long since resolved.

[139]     As noted,
in reaching this conclusion I have considered the entire body of evidence. 
Taking into account Ms. Hardychuk’s vocational, academic and recreational
activities and achievements since 2006, as well as the results of objective
testing, in my view it best harmonizes with the preponderance of probabilities.

[140]     The expert
evidence was of limited value, given the divergence between some of my factual
findings and the assumptions underlying the opinions.  For example, to varying
degrees all of the experts assumed Ms. Hardychuk was significantly more
functionally debilitated in her work and home life than I have found.  In
addition, none knew the details of her early history with depression, Ms. Hardychuk
could not remember much and her mother did not testify to clarify the matter. 
This evidentiary hole seriously undermined the value of the expert opinions that
drew a causal link between Ms. Hardychuk’s depression and her
accident-related injuries.  Further, objecting testing by Dr. Schmidt and Mr. McNeil
produced results of questionable validity and incompatibility with her
post-accident activities, including her four years of full-time employment as a
cabinetmaker.

[141]     Despite
the foregoing, I accept Dr. Cameron’s diagnosis of a mild traumatic brain
injury.  The symptoms Ms. Hardychuk reported at their meeting in August,
2006 generally accord with my factual findings and her experience in the
accident is consistent with his conclusion.  All things considered, I am
satisfied that, as Dr. Cameron opined, the problems with cognition Ms. Hardychuk
experienced for the first few months post-accident were attributable to a mild
traumatic brain injury.  I am also satisfied that, as he further opined, she
suffered no long-term residual cognitive deficits as a result.

[142]     I also
accept Dr. Schmidt’s 2007 diagnosis of well encapsulated post-traumatic
stress disorder.  Again, I do so largely on the basis that the facts he assumed
in support of the diagnosis generally accord with my findings.  As noted, Ms. Hardychuk’s
symptoms, the most serious of which is nightmares, have reduced significantly
since the accident.  In addition, her driving and other habits of daily life
are unimpaired by this condition.

[143]     The
injuries Ms. Hardychuk suffered in the June 29, 2011 accident are
divisible from those suffered in the May 20, 2006 accident.  As outlined above,
her persistent residual symptoms were well established by the time she was in
the subsequent collision.  Accordingly, damages can be assessed independently
between the two accidents.

[144]     As to prognosis,
I conclude Ms. Hardychuk’s ongoing accident-related symptoms will likely
improve further with proper treatment, including pain management counselling,
physiotherapy and massage.  I accept, however, that her symptoms may never
fully resolve.  In reaching this conclusion I rely to some degree on the
opinions of Dr. Rampersaud and Dr. Hershler regarding Ms. Hardychuk’s
future prognosis.  Although the factual foundations of their opinions differ
somewhat from my findings, particularly as to her functional limitations, the
general information provided and applied with respect to future prognosis is
helpful and illuminating.

DAMAGES

Non-Pecuniary Damages

Legal Framework

[145]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities.  The compensation awarded should be
fair to all parties.  Fairness is measured against awards made in comparable
cases, which, though helpful, serve only as a rough guide to
appropriate compensation.  Each case will depend on its own unique facts: Trites
v. Penner, 2010 BCSC 882.

[146]     In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors for
consideration when assessing non-pecuniary damages.  The court stated:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[147]     The
assessment of non-pecuniary damages is influenced by the plaintiff’s personal
experiences in dealing with his or her injuries and their consequences, as well
as the plaintiff’s ability to articulate that experience.  A functional
approach should be employed by the court.  In so doing, a clear appreciation of
the individual plaintiff’s loss and need for reasonable solace is the key: Dilello
v. Montgomery, 2005 BCCA 56; Dikey v. Samieian, 2008 BCSC 604.

Position of the Parties

[148]     Counsel
for Ms. Hardychuk submits the range for non-pecuniary damages established
by comparable cases is between $170,000 and $230,000.  Based on his
characterization of her condition, he seeks an award of $215,000.

[149]     Counsel’s
submission is based on the assertion that Ms. Hardychuk suffers from debilitating
back and neck pain, cognitive impairment and emotional dysfunction associated
with widespread chronic pain and a mild traumatic brain injury.  It is also
based on the position that she cannot work as a cabinetmaker, has limited alternative
employment opportunities and is unable to engage in most of her former sporting
activities.

[150]     In support
of his submission, counsel for Ms. Hardychuk relies upon the following
case authorities: Bransford v. Yilmazcan, 2010 BCCA 271; Sirna v.
Smolinski, 2007 BCSC 967; Taraviras v. Lovig, 2011 BCCA 200; Danicek
v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111; Cikojevic
v. Timm, 2010 BCSC 800; and Bouchard v. Brown Bros. Motor Lease Canada
Ltd., 2011 BCSC 762.

[151]     In Bransford,
the 26-year-old plaintiff suffered chronic neck and arm pain that were associated
with thoracic outlet syndrome.  Her condition deteriorated over time and she
went from enjoying a healthy, active lifestyle to an unemployed state of near
semi-invalidity.  On appeal from a jury award that exceeded, and was reduced
to, the upper limit, the Court of Appeal awarded $225,000 in non-pecuniary
damages.

[152]     In Sirna,
the 22-year-old plaintiff suffered a mild traumatic brain injury which compromised
her attention span, memory, energy level and sense of smell.  She also suffered
soft tissue injuries to her neck and back, a hip injury and ongoing
depression.  As a result, she could no longer continue her education and career
path or participate in prior athletic endeavours.  Her relationships were also
impacted negatively.  The court awarded $200,000 in non-pecuniary damages
(which adjusts to approximately $215,000 for inflation).

[153]     In Taraviras,
the 44-year-old plaintiff suffered neck and back injuries that led for six
years to severe leg pain and, eventually, spinal decompression treatment. 
Thereafter, he was left with persistent dull back pain, moderate disability and
a devastated previously active sporting life.  On appeal from a jury award, the
Court of Appeal awarded $200,000 in non-pecuniary damages.

[154]     In Danicek,
the 32-year-old plaintiff suffered a mild traumatic brain injury, soft tissue
injuries, and persistent debilitating headaches.  Her life was profoundly
affected by these injuries, particularly in connection with her compromised ability
to work as a lawyer.  The court awarded $185,000 in non-pecuniary damages.

[155]     In Cikojevic,
the 17-year-old plaintiff suffered soft tissue injuries to her back and neck
leading to chronic pain and a mild traumatic brain injury.  As a result of her
injuries, her likely career path was significantly compromised and she was
restricted in her previous abilities and enjoyment with respect to sports.  The
court awarded $160,000 in non-pecuniary damages.

[156]     In Bouchard,
the 26-year-old plaintiff suffered soft tissue injuries to his back and neck
leading to chronic pain, legal cramps, a sleep disorder, and anxiety.  These
injuries contributed to the breakdown of his marriage and unemployment.  The
court awarded $160,000 in non-pecuniary damages.

[157]     Counsel
for Ms. Hardychuk submits her injuries and their effects are generally comparable
to those suffered by the plaintiffs in the above noted cases.  He says the most
similar case is Sima and seeks a similar award.

[158]     Defence
counsel submits the appropriate award for non-pecuniary damages is $40,000. 
Her submission is based on her assertion that Ms. Hardychuk’s complaints
of physical and emotional pain, and their effects on her life, are significantly
exaggerated.  In so far as her complaints are genuine, she relies on the
assertion that Ms. Hardychuk is likely to recover further as time goes by.

[159]     In support
of her submission, defence counsel relies upon Le (Guardian ad litem) v.
Milburn, 1987 Carswell BC 1589 and Schweighardt v. Palamara, 2003
BCSC 1149.

[160]     In Le,
the 17-year-old plaintiff suffered a concussion, multiple abrasions and a chip
fracture through the C5 cervical spine vertebrae.  Although she had no
permanent organic brain damage, she experienced post-concussion syndrome
symptoms such as memory loss, anxiety and irritability in the following year. 
Her prospects for a full recovery were good.  The court awarded $25,000 in
non-pecuniary damages (which adjusts to approximately $44,000 for inflation).

[161]     In Schweighardt,
the 34-year-old plaintiff suffered soft tissue injuries to her back, shoulders,
neck and hips which led to depression, chronic pain and anxiety.  Four years
after the accident she was unemployed, but with proper treatment she would be
able to return to work.  The court awarded $40,000 in non-pecuniary damages
(which adjusts to approximately $46,700 for inflation).

Discussion

[162]     I have found
that Ms. Hardychuk suffered soft tissue injuries to her neck, shoulders
and back in the accident.  After a two-year process of gradual recovery, these
injuries left her with residual symptoms of back discomfort, occasional flaring
pain and periodic headaches.  Ms. Hardychuk also suffered post-traumatic
stress disorder and a mild traumatic brain injury as a result of the accident. 
The symptoms of her post-traumatic stress disorder are well encapsulated,
resolving and non-debilitating.  The mild traumatic brain injury caused Ms. Hardychuk
to suffer cognitive deficits for several months but those symptoms have now
fully resolved.

[163]     As a
result of her ongoing soft tissue injury symptoms Ms. Hardychuk experiences
pain, frustration, and fatigue, but not a mood disorder or cognitive deficits. 
Her vocational, home and recreational activities have been somewhat modified,
but she has not been rendered sedentary or unemployable.  As discussed below,
her decision to leave her cabinetmaking job in 2010 is not causally related to
the accident, nor is her state of depression.  The prognosis for further
improvement in her ongoing accident-related symptoms is good, but she may never
recover fully.

[164]     Before the
accident, Ms. Hardychuk was an extraordinarily athletic and
physically-oriented young woman.  Vigorous, enthusiastic, unimpeded physical
activity in her work and recreational pursuits was, for her, a major pleasure
in life.  For this reason the compromise to her physical state and activities
caused by her ongoing symptoms, while not highly debilitating, represents an unusually
significant loss for which she is entitled to be fully compensated.  That being
said, her loss is not nearly of the nature or magnitude of those addressed in
the cases cited by her counsel.  It is, however, somewhat greater than those
addressed in the cases cited by counsel for the defence.

[165]     All things
considered, I conclude that an award of $60,000 in non-pecuniary damages is
appropriate in the circumstances of this case.

Loss of Housekeeping
Capacity

Legal Framework

[166]     Housekeeping
services have economic value.  The loss or impairment of a plaintiff’s capacity
to perform them is, therefore, compensable: Harrington v. Sangha, 2011
BCSC 1035.

[167]     The
governing principles that apply to awards for the loss or impairment of housekeeping
capacity were summarised by Newbury J.A. in Dykeman v. Porohowski, 2010 BCCA
36.  As noted by Dardi J. in X. v. Y., 2011 BCSC 944:

246      … She affirmed that
damages for the loss of housekeeping capacity may be awarded even though the
plaintiff has not incurred any expense because housekeeping services were
gratuitously replaced by a family member.  Recovery may be allowed for both the
future loss of ability to perform household tasks as well as for the loss of
such abilities prior to trial.  The amount of compensation awarded must be
commensurate with the plaintiff’s loss: Dykeman at para. 29.

[168]     When
housekeeping services have been provided by other household members a claim for
compensation must be scrutinised carefully.  Although grievous injury need not
be established, the court should ask whether the services went above and beyond
the ordinary give and take to be expected in a home and were required by the
plaintiff’s injuries or would have been performed in any event.  A relatively
minor adjustment of duties within a household will not justify a discrete award
under this head of damages: Dykeman, Campbell v. Banman, 2009
BCCA 484.

Position of the Parties

[169]     Counsel
for Ms. Hardychuk submits this is a case in which the loss of housekeeping
capacity is significant enough to warrant a separate and substantial award
under this head of damages.  He seeks an award for past and future loss of
housekeeping capacity in the range of $220,000 to $325,000.

[170]     Counsel’s
submission is based on his assertion that Ms. Hardychuk cannot perform
most household chores due to her ongoing back pain.  It is also based on the
position that her loss of housekeeping capacity is unlikely ever to change.  He
further asserts that Ms. Hardychuk will likely experience significant
difficulties in the future with child care due to her injuries.  Accordingly,
he seeks additional compensation for the extra assistance that he says will be
required during the child-rearing years.

[171]     Mr. McNeil
opined that Ms. Hardychuk will likely need two hours of housekeeping
assistance every week for heavy household duties, at an annual cost of $2,262. 
In addition, in his view she will likely need four hours of yard work and home
maintenance every week for 30 weeks of the year, at an annual cost of $3,474. 
Counsel for Ms. Hardychuk relies on this evidence in support of his
submission.  He also points to an award of $195,000 made to the 45-year-old
plaintiff in Harrington and submits a larger award is appropriate in
this case given the plaintiff’s relative youth.

[172]     Defence
counsel submits that no award should be made for loss of housekeeping
capacity.  Her submission is based on the assertion that Ms. Hardychuk’s
ability to perform household chores is not compromised to the extent that a
separate award for impairment of housekeeping capacity is justified.  In
particular, even if she has found housework more difficult and time consuming
since the accident, defence counsel submits that, as in Travis v. Kwon,
2009 BCSC 63, any such loss is appropriately addressed within the non-pecuniary
damages award.

Discussion

[173]     I have
found that Ms. Hardychuk finds heavy housework more difficult than she did
before the accident.  In consequence, she performs tasks more slowly than she
did before and is sometimes left feeling stiff and sore.  I have not found,
however, that her capacity to perform housework is compromised to nearly the
extent she claimed or Mr. McNeil assumed based on her reports and
unreliable testing presentation.  For that reason, Mr. NcNeil’s opinion on
this matter is of little, if any, evidentiary value.

[174]     Although Ms. Hardychuk’s
mother has sometimes helped her with housework since the accident and Ms. Vulcano
does rather more than her fair share around the house, these are relatively
minor adjustments of household duties.  In my view, they do not justify a
discrete award under this head of damages.  Rather, I have taken the impact of Ms. Hardychuk’s
injuries on her housekeeping capacity into account in the non-pecuniary damages
award.

Past Loss of Earning
Capacity

Legal Framework

[175]     An award
of damages for loss of earning capacity, whether in the past or the future,
represents compensation for a pecuniary loss.  The goal is to restore the
plaintiff to the position he or she would have occupied but for the defendant’s
negligence.  Accordingly, compensation for past loss of earning capacity is to
be based on what the plaintiff would have, not could have, earned but for the
accident-related injuries:  Rowe v. Bobell Express Ltd., 2005 BCCA 141;
M.B. v. British Columbia, 2003 SCC 53; Gregory v. Insurance Corporation
of British Columbia, 2011 BCCA 144.

[176]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss.  In the ordinary course this means the court must deduct the amount of
income tax payable from lost gross earnings:  Hudniuk v. Warkentin
(2003), 9 B.C.L.R. (4th) 324.

[177]     The burden
of proof of actual past events is a balance of probabilities.  An assessment of
loss of both past and future earning capacity, however, involves consideration
of hypothetical, not actual, events.  The plaintiff is not required to prove hypothetical
events on a balance of probabilities.  Rather, the future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation: Athey; Falati v.
Smith, 2010 BCSC 465; aff’d 2011 BCCA 45.

[178]     As with
the loss of future earning capacity, the court’s task is to assess damages for
past loss of capacity rather than to calculate them mathematically.  Allowances
for contingencies should be made and the award must be fair and reasonable
taking into account all of the circumstances: Falati.

Position of the Parties

[179]     Counsel
for Ms. Hardychuk seeks an award of $60,000 in connection with the past
wage loss component of this head of damages.  In support of this submission he
says Ms. Hardychuk lost three weeks of wages immediately after the accident,
with a gross loss of $1,800.  He goes on to say she also lost at least one week
of wages every year until October 22, 2010 to attend accident-related medical
appointments and 43 weeks of regular full-time work thereafter, with a total
gross wage loss of $40,960.  In addition, he says she would probably have
earned approximately $2 more per hour at Hycraft but for the accident and her
associated limitations, leading to a further loss of $19,280 in gross wages. 
He acknowledges the past loss figure on this aspect of the analysis should be adjusted
to reflect income tax deductions.

[180]     Counsel
for Ms. Hardychuk also seeks an award of between $50,000 and $100,000 for
past loss of earning capacity in connection with the loss of overtime and
independent business opportunities.  In his submission, the evidence
establishes a real and substantial possibility that Ms. Hardychuk would
have earned extra income from side jobs and renovating and flipping houses.

[181]     Counsel
concedes that it would be difficult to estimate the profit Ms. Hardychuk might
have earned from home renovations.  He says, however, that at a minimum she
would likely have put in 8-16 hours of labour per week beyond her regular work
with Hycraft.  On this analysis, calculated at a rate of $23 per hour, he
asserts that her additional loss over five years would be in the $100,000
range.

[182]     Taking
into account the foregoing, counsel for Ms. Hardychuk seeks an award of
between $110,000 and $160,000 for past wage loss and past loss of capacity to
earn.

[183]     Defence
counsel responds that Ms. Hardychuk is entitled to an award for no more
than the three weeks of lost wages from Hycraft that immediately followed the accident. 
In support of this position, she submits that Ms. Hardychuk has failed to
prove, on a balance of probabilities, that she sustained any additional past
wage loss after she returned to work.  She emphasizes there is no evidence as
to how much work may have been missed as a result of Ms. Hardychuk’s attendance
for medical treatments.  She also notes that Ms. Hardychuk was able to
work after regular employment hours constructing her own kitchen cabinets and
performing side jobs.  In these circumstances, she says the award for past loss
of earning capacity award should not exceed $1,800.

Discussion

[184]     I have
found that Ms. Hardychuk missed three weeks of work at Hycraft immediately
after the accident.  When she returned she performed light duties for a few
weeks and then resumed the full duties of her job.  There is no reliable
evidence regarding the extent, if any, to which she lost wages due to
attendances for medical appointments.  There is also no reliable evidence that
she lost pay increases due to her soft tissue injury symptoms and associated
work compromise.  On the contrary, Ms. Hardychuk repeatedly received pay
increases while she worked at Hycraft and progressed well in both skills and
responsibility.

[185]     Despite
the foregoing, I have also found that due to her soft tissue injuries Ms. Hardychuk
required more assistance with heavy lifting at work than she did before the
accident.  She also took more breaks to maintain her stamina.  Further, from
time to time she complained of back pain and received massages from her
co-workers.  She was also more fatigued by work as a result of her residual
back discomfort, headaches and occasionally flaring pain.

[186]     Significantly
for purposes of this analysis, I am not persuaded that Ms. Hardychuk left
her cabinetmaking job at Hycraft due to the effects of her accident-related
injuries.  Rather, she left because she was dissatisfied with the work
environment and her productivity had been slipping since early 2010 for
unrelated reasons.  Those reasons no doubt include the impact of her depression
on her overall attitude, focus and productivity, but that condition has not
been reliably connected causally to the accident on the evidence presented.  In
these circumstances, she is not entitled to an award for lost wages since
leaving her job at Hycraft.

[187]     I am also not
persuaded that Ms. Hardychuk is disabled from working full-time as a
cabinetmaker due to her accident-related injuries.  On the contrary, she is
demonstrably able to do so if she receives accommodations such as extra help
with heavy lifting and extra breaks to maintain her stamina.  Those
accommodations were available to her at Hycraft without her employer even knowing
that she needed them or learning she had a significant health problem.  That
being so, it is clear only minor accommodations are required for Ms. Hardychuk
to work full-time in the cabinetmaking trade.

[188]     Nevertheless,
I am persuaded there is a real and substantial possibility Ms. Hardychuk
would have earned extra income by completing additional side jobs but for the
accident.  Her residual soft tissue injury symptoms caused fatigue, stiffness,
and frustration, all of which slowed her down in connection with physical
activity.  Before the accident, Ms. Hardychuk was an unusually energetic, strong
and hard-working young woman.  Given those attributes, I am satisfied that but
for the accident she would very likely have taken on more side jobs than she
did to supplement her Hycraft income.  She is entitled to an award to restore
this aspect of her original position.

[189]     Although
precision is impossible, particularly given the vagueness of the evidence
regarding side jobs, I estimate Ms. Hardychuk would probably have earned
something in the range of $3,600 to $4,000 in extra side job income each year
had she not been suffering from the symptoms of her soft tissue injuries. 
These figures are based on an assumed additional 180 to 200 hours of labour per
year remunerated at $20 per hour.

[190]     My task is
to assess, not calculate, the value of Ms.  Hardychuk’s past loss of
earning capacity allowing for contingencies and aiming for overall fairness. 
In my view the positive and negative contingencies cancel one another out.  For
example, it is possible that after May, 2006 Ms. Hardychuk would have
devoted most of her after-hours time and energy to her sporting activities
rather than to earning extra income through side jobs.  It is equally possible
that she would have put in more additional hours working side jobs than I have
assumed.

[191]     All things
considered, including the need to compensate Ms. Hardychuk for the three
weeks of wage loss suffered immediately after the accident, I assess her past
loss of income and income earning capacity at $20,000.

Loss of Future Earning
Capacity

Legal Framework

[192]     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 assessment of loss must be based on the evidence,
and not an application of a purely mathematical calculation.  The appropriate
means of assessment will vary from case to case: Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260; Pett. v. Pett, 2009 BCCA 232.

[193]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA.

[194]     Insofar as
is possible, the plaintiff should be put in the position he or she would have
been in, from a work life perspective, but for the injuries caused by the
defendant’s negligence.  Ongoing symptoms alone do not mandate an award for
loss of earning capacity.  Rather, 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 its
occurrence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106; Moore
v. Cabral et. al., 2006 BCSC 920; Gregory v. Insurance Corp. of British
Columbia, 2011BCCA 144.

[195]     There are
two possible approaches to assessment of loss of future earning capacity:  the
“earnings approach” from Pallos; and the “capital asset approach” in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way: Perren
v. Lalari, 2010 BCCA 140.

[196]     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.

[197]     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.

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

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…

Position of the Parties

[199]     Counsel
for Ms. Hardychuk seeks an award of $1,000,000 to $1,500,000 for her loss
of future earning capacity.  In his submission, on either an earnings or capital
asset approach her future loss is of this magnitude given her youth, well established
pre-accident career path, the effect of her injuries on that path and her compromised
physical and emotional state.

[200]     Counsel’s
submission is based on his assertion that Ms. Hardychuk has completely
lost her capacity to work in the construction industry.  If she does work again
he says it will likely be in a minimum wage job and probably limited to part-time. 
Had she continued employment as a full-time cabinetmaker, however, there is a
real and substantial possibility she would have become a foreman by age 35 and
consistently earned a solid middle class income.  There is also a lesser, but
real, possibility she would have earned considerably more as a renovation
entrepreneur.

[201]     Applying
an earnings approach counsel submits that, but for the accident, Ms. Hardychuk
would likely have earned something in the range of $2,289,000 in regular wages over
the course of her working lifetime.  As a result of the accident, however, he
says she is likely to earn only something in the range of $616,000.  The
difference is approximately $1,666,000, for an average annual wage loss in the
range of $41,659.  When this figure is discounted by 2.5% for present value he
says her lifetime net wage earning capacity loss is $1,045,762.  He also says
she would have earned at least an additional $200,000 to $400,000 in other
project work.

[202]     Counsel
goes on to say that a capital asset approach to assessment produces a similar value
for Ms. Hardychuk’s diminished future earning capacity.  In advancing this
submission, he says she is now significantly less capable of performing most
types of employment due to her chronic back and neck pain, as well as her associated
cognitive, memory and emotional compromise.  She is also less attractive as a
potential employee due to her permanent partial disabilities; has lost the
ability to take advantage of otherwise available job opportunities such as
cabinetmaking and home renovations; and is less valuable to herself as a skilled
and capable income earner.

[203]     Defence
counsel responds that Ms. Hardychuk is not entitled to any award for loss
of future earning capacity.  In support of this submission she emphasises that Ms. Hardychuk
was able to work in a competitive environment for four years after the
accident.  At the same time she studied for and passed three apprenticeship
levels at B.C.I.T., played various sports, built her own kitchen cabinets and
performed some side jobs.  Further, she left her job at Hycraft for reasons
unrelated to the effects of her soft tissue injuries.

[204]     Defence
counsel goes on to say that Ms. Hardychuk is likely to continue her
recovery in the future with appropriate treatment.  All things considered, if
the court is satisfied Ms. Hardychuk’s future earning capacity has been
impaired she submits the award should be no greater than a single year’s
salary.

Discussion

[205]     Most of the
facts relevant to analysis of Ms. Hardychuk’s loss of future earning
capacity are outlined in the preceding section.  Accordingly, there is no need
to repeat them.  In summary, I have concluded Ms. Hardychuk has not lost
her capacity to work as a full-time cabinetmaker due to her accident-related
injuries.  There is a real and substantial possibility, however, that since the
accident she would have taken on more side jobs had it not occurred.  I also
conclude this likelihood would have continued into the future.  I further conclude
that the prospect she will open her own veneer shop has been modestly reduced.

[206]     This is
not a case in which the loss of future earning capacity can be easily measured
and quantified.  Ms. Hardychuk was in the very early stages of her
cabinetmaking career when the accident happened and a clear pattern of overall
income-earning had not yet emerged.  Accordingly, I prefer the capital asset
approach to assessment of her loss.

[207]     Applying
the capital asset approach I find that Ms. Hardychuk has been rendered
less capable of earning income through side jobs and self-employment by virtue
of her reduced energy and physicality associated with her soft tissue
injuries.  She is also less attractive as a potential employee given her need
for minor accommodations at work; has the lost the ability to take advantage of
opportunities that might otherwise have been open; and is less valuable to
herself as a person capable of earning income in a competitive construction
market.

[208]     Despite
the foregoing, Ms. Hardychuk’s future prognosis is reasonably positive.  With
proper treatment, such as pain management counselling, physiotherapy and
massage, her accident-related symptoms will likely continue to improve.  That
being said, there is also a real possibility that her symptoms may never resolve
fully and the associated compromise to her earning capacity may be permanent. 
This possibility is real, but relatively low.  Other contingencies, such as the
risk that unrelated impediments to future income-earning such as debilitating
depression would have reduced her capacity regardless are offset by the equally
likely possibility that, with greater physical stamina, she would have earned
substantial profits by renovating and flipping properties.

[209]     All things
considered, I conclude an appropriate award for Ms. Hardychuk’s loss of
future earning capacity is $75,000.

Costs of Future Care

Legal Framework

[210]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him or her to the pre-accident condition in
so far as that is possible.  When full restoration cannot be achieved, the
court must strive to assure full compensation through the provision of adequate
future care.  The future care 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] B.C.J. No. 408 (S.C.); Spehar
(Guardian ad litem of) v. Beazley, [2002] B.C.J. No 1718 (S.C.).

[211]     The test
for determining the appropriate award for the 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.

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

[213]     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.

[214]     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.

Position of the Parties

[215]     Counsel
for Ms. Hardychuk seeks an award in the range of $600,000.  Counsel’s
submission is based on his assertion that Ms. Hardychuk requires
psychological intervention, pain management modalities and job retraining to
provide relief and restore her, in so far as is possible, to her pre-accident
state.  He relies heavily on the evidence of Dr. Powers and Mr. McNeil
in this regard.

[216]     Defence
counsel responds that Ms. Hardychuk does not require the multitude of
future care benefits recommended by Mr. McNeil in his report and
testimony.  In support of this submission she emphasises that none of Ms. Hardychuk’s
physicians have found a restricted range of motion in her neck, shoulders or
back and she worked successfully as a cabinetmaker after the accident for four
years.  She also says that Ms. Hardychuk has not always followed the
advice of her treatment providers, particularly with respect to taking anti-depressant
medication.  In these circumstances, she submits no award should be made under
this head of damages.

Discussion

[217]     I have
concluded that Ms. Hardychuk’s ability to work as a full-time cabinetmaker
has not been lost due to the accident.  That being so, she does not require job
retraining to restore her to her pre-accident state.  She also does not require
the multitude of devices and services Mr. McNeil recommended based on
flawed assumptions regarding the nature and extent of her disabilities.

[218]     I accept,
however, that, as Dr. Schmidt opined, Ms. Hardychuk’s perceptions and
coping mechanisms are not optimal and could interfere with her ability to deal
with her residual soft tissue injury symptoms effectively.  Accordingly, I conclude
that she requires psychological counselling for pain management.  She does not,
however, require a residential program in this regard.  I also accept that, as Dr. Rampersaud
and Dr. Hershler opined, she will likely require intermittent
physiotherapy and massage to help her cope with flare-ups of back pain.  In
addition, she will periodically require analgesics and muscle relaxants, as
well as ongoing access to a gym.  All of these future care items are medically
necessary and likely to be incurred by Ms. Hardychuk.

[219]     Taking
into account the likely costs of the foregoing, as outlined by Mr. McNeil,
and considering the likelihood that Ms. Hardychuk’s condition will improve
over time I assess the cost of future care at $10,000.

Special Damages

Legal Framework

[220]     An injured
person is entitled to recover the reasonable out-of-pocket expenses incurred as
a result of an accident.  This is grounded in the fundamental governing
principle that an injured person is to be restored to the position he or she
would have been in had the accident not occurred: X.; Milina.

Position of the Parties

[221]     Counsel
for Ms. Hardychuk seeks an award of $3,069 for out-of-pocket expenses said
to be incurred in connection with her accident-related injuries.  In his
submission, Ms. Hardychuk’s testimony, together with that of her father,
establishes her entitlement to such an award.  The expenses claimed concern
prescriptions for medication, massage therapy and physiotherapy.

[222]     Defence
counsel responds that the evidence does not establish any entitlement under
this head of damages.  In particular, Mr. Hardychuk was unable to say
whether various medical expenses, including massage and drug expenses, submitted
to Sun Life were connected with the accident or whether reimbursement is
required.  In addition, and in any event, she notes Ms. Hardychuk had
extended health coverage through Hycraft until October 2010 and, therefore, was
generally reimbursed.

Discussion

[223]     The burden
of proof is on a plaintiff to establish entitlement to an award for damages. 
In this case, Ms. Hardychuk’s evidence as to out-of-pocket expenses was
extremely vague and unreliable.  For example, some of the prescriptions that
were included in the special damages list are for antibiotics and plainly do
not relate to the accident.  In the circumstances, I am not satisfied she has
discharged the burden of proof and find no entitlement has been established under
this head of damages.

SUMMARY

[224]     In
summary, damages are awarded as follows:

COSTS

[225]     If the
parties are unable to agree on costs, they may speak to the issue.

"DICKSON J."