IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20121002

Docket: No:  M60296

Registry: Nanaimo

Between:

Julie Lynn Smith

Plaintiff

And

Behrooz Sani
Moshrefzadeh

Defendant

Before:
The Honourable Madam Justice Dardi

Subject
to Rule 15-1

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Julie Smith, was injured in a motor vehicle accident in
Nanaimo, British Columbia, on October 23, 2008.

[2]            
Liability has been admitted.  This action addresses Ms. Smith’s
claim for damages.

FACTS

[3]            
Before addressing the damages analysis, I turn to the facts
established on the evidence.  I will address the facts in the following
order:

(a)      general background
and Ms. Smith’s circumstances prior to the accident;

(b)      the accident;
and

(c)      Ms. Smith’s
circumstances post-accident and at trial.

[4]            
I will then summarize the expert evidence and set out my
conclusions on Ms. Smith’s injuries.

(a)      General Background and
Ms. Smith’s Circumstances
Prior to the Accident

[5]            
Ms. Smith, who is 54-years old, is married and has two teenage
daughters.

[6]            
After completing her high school education, she attended, but did not
complete, a two-year secretarial administration course.  Following this, she
worked in various capacities, such as a cashier and bartender, and eventually became
the manager of the pro shop at a golf course in the Nanaimo area.  She left
that job in 1989 to work as a deck hand and as a cook on a commercial fishing
boat.  Her husband was the skipper of the boat.  Since that time, except for a
period when her daughters were babies, Ms. Smith has continued to fish
commercially.  She clearly enjoyed this line of work.  She typically worked on
her husband’s boat and engaged in three types of fisheries: salmon, herring and
prawns.

[7]            
The work is seasonal – the herring fishery is typically open in February
and March, the prawn from May through July, and the salmon from July through
October or November.  The evidence establishes that commercial fishing is
physically demanding work.  The crew work long hours; the salmon and herring
fisheries sometimes require the crew to stay on the water overnight.

[8]            
After her daughters were born, Ms. Smith ceased working on the
northern salmon openings, which are situated north of Vancouver Island, because
this would have required her to be away from home for extended periods of time.
However, she continued to work on the southern salmon openings.

[9]            
The only other job Ms. Smith has held, since she began commercial fishing,
is that of a telemarketer.  She worked in this capacity for approximately one month
in September 2008.  I accept her evidence that she never intended this to
be a permanent position; she only took the job to replace the income she had
lost because there was no southern salmon fishery in 2008.

[10]        
Ms. Smith has a history of bilateral knee osteoarthritis unrelated
to the accident.  However, according to Ms. Smith, the condition of her
knees has never restricted her commercial fishing work or precluded her from
fulfilling her duties on her husband’s fishing boat.  In cross-examination, she
steadfastly maintained that she does not encounter difficulties walking on fishing
boats.  She last saw an orthopaedic surgeon about her knees in October 2006.  After
reviewing surgical options, she decided to postpone knee surgery as long as
possible.  I find that, while Ms. Smith experienced knee problems
prior to the accident, for the most part that condition did not detrimentally
impact her fishing work or her family life.

[11]        
I will return to Ms. Smith’s knee condition later in these
reasons in the section on her income loss claim.

[12]        
Prior to the accident, Ms. Smith enjoyed swimming and bowling and she
occasionally golfed with her husband.  She was an active volunteer at her
daughters’ school.

[13]        
She performed all housework duties without restriction and was responsible
for the yard work – cutting the grass, weeding and gardening – when her husband
was away fishing in the summer.

(b)      The Accident

[14]        
At the time of the collision, Ms. Smith, who was driving a Dodge
Caravan, had just turned left onto Turner Road from the Island Highway.  She
observed that the traffic was stopped and she therefore stopped her own vehicle. 
Without warning, the defendant collided with the rear end of her vehicle,
pushing it into the vehicle ahead. At the time of impact, Ms. Smith’s head
was turned to the right, as she had been speaking to her oldest daughter who
was sitting in the passenger seat.  The evidence establishes that the collision
caused approximately $4,000 in damage to the front and back of her vehicle.  After
she had exchanged information with the defendant and the police had attended
the scene, she drove her vehicle home.

[15]        
Ms. Smith developed  a headache that evening, and the next day her
neck and upper back were painful.  Her condition deteriorated over the next few
days and, in particular, the severity of her headache increased.  She called her
doctor’s office a few days after the accident and booked the first available
appointment.

(c)      Ms. Smith’s Circumstances Post-Accident and at Trial

[16]        
It is uncontroversial that in the accident, Ms. Smith sustained
soft tissue injuries involving her neck and upper back.  She testified about
the progression of her symptoms, which she attributes to the accident, and the
treatments she has received in respect of them.  Her evidence is summarized
below.

[17]        
Since the accident, Ms. Smith has pursued various forms of
treatment.  She has regularly attended her family doctor, Dr. Lam.  She
attended a series of regular physiotherapy sessions in 2008 and 2009 and, from
2009 to 2011, she saw three different chiropractors.  She has also been treated
by a massage therapist.  In 2010 she received some injections from a pain
specialist.  None of these modalities of treatment have provided her with any
long-lasting or effective relief.

[18]        
At one point, Ms. Smith undertook a structured exercise program.  She
also regularly attended the local community swimming pool and did the
self-directed exercises recommended by various health care professionals.  In
2009, at the request of the defence, she saw Ms. Mary Kemp, an
occupational therapist, who prescribed an exercise program which Ms. Smith
could not tolerate.  Ms. Smith found that those particular exercises
aggravated her neck and back.

[19]        
After the accident, Ms. Smith’s doctors prescribed a variety of
medications for her.  In addition to the over-the-counter medication that she
takes regularly, her doctors have prescribed nortriptyline, tramadol, bacloflen
and rizatriptan, all of which she has continued to use.  Ms. Smith takes
the tramadol and nortriptyline daily to alleviate her pain and discomfort.  She
only takes the rizatriptan when she intends to be at home because it makes her
very sleepy.  She could not tolerate the muscle relaxant medication prescribed
by Dr. Lam and therefore she has discontinued its use.

[20]        
Ms. Smith says that her symptoms have not significantly improved
since the accident and that she continues to experience neck and upper back pain
on a daily basis. Her upper back is worse on the right side.  Physical activity
such as vacuuming, repetitive use of her arms, lifting, bending and driving for
any extended period of time aggravates her symptoms.  Increased neck pain
exacerbates her headaches.  According to Ms. Smith, she has experienced
persistent and daily headaches since the accident.  The headaches are bilateral
and radiate from the back of her neck into her forehead and temples.  She says that
on some days, Advil alleviates the pain, whereas on other days her head throbs
and she experiences a pounding sensation.  With the onset of her more severe
headaches, she becomes sensitive to light and sound, experiences nausea and lies
down in a dark room with a cold cloth over her eyes.  The prescription drug
rizatriptan provides her with some relief for her more severe headaches.

[21]        
Since the accident, Ms. Smith’s marriage and family life have been
strained and she has significantly reduced levels of patience and tolerance.  She
no longer sleeps with her husband because her sleep is so easily disturbed.  Their
intimate relationship has been adversely affected.  She is less active with her
teenage daughters and participates less in their extracurricular activities.  While
she could not be described as an athletic woman prior to the accident, the recreational
activities that she did enjoy such as golf and bowling have been restricted. She
has continued to do some swimming, but on a less frequent basis than prior to
the accident. Her home projects such as window painting have been curtailed.

[22]        
She continues to work with her husband in the salmon and herring
fisheries, however, she has been forced to modify how she performs her duties
and has encountered difficulty with the heavier work demands.  She typically suffers
increased symptoms at the end of the work day.

[23]        
I will return to the prawn fishing later in these reasons, in the
section on Ms. Smith’s income loss claim.

[24]        
Ms. Smith had x-rays taken of her cervical spine on November 3,
2008.  It is common ground that the imaging revealed mild degenerative or
general arthritic changes at the C5-6 and C6-7 level.

(d)      Medical Evidence

[25]        
Ms. Smith called Dr. Robinson, who is a neurologist, and Dr. Helper
and Dr. Craig, who are both physiatrists.  The defence called Dr. Wahl,
who is an orthopaedic surgeon.  The key aspects of their respective reports are
summarized below.

[26]        
I note that, at the request of the defence, a functional capacity
evaluation of Ms. Smith was conducted by the occupational therapist, Ms. Kemp,
on May 27 and 28, 2009.  Neither party relied upon Ms. Kemp’s opinion
regarding Ms. Smith’s functional capacity to advance their respective cases.
However, the defence called Ms. Kemp, not as an expert tendering an
opinion, but rather to testify as to her observations of Ms. Smith during
the testing.  Dr. Craig and Dr. Helper’s evidence, elicited in their
respective cross-examinations regarding their respective understanding of Ms. Kemp’s
report, cannot become the functional equivalent of Ms. Kemp’s opinion
having been properly tendered at trial: Jackson v. Mongrain, 2010 BCSC
1866.

(i)       Dr. Robinson

[27]        
Dr. Robinson is a very experienced and well-qualified neurologist,
whose practice has a particular focus on the diagnosis and management of
headaches.  He assessed Ms. Smith on June 30, 2011, and his report is
dated August 2, 2011.

[28]        
With respect to causation, Dr. Robinson opined that Ms. Smith’s
condition is consistent with a diagnosis of chronic headache, caused by the
neck injury she sustained in the accident.  According to Dr. Robinson, her
headache is properly designated as a “post-traumatic headache related to
whiplash”.

[29]        
Insofar as a prognosis, he concluded as follows:

It is now well over 2 years since the motor vehicle accident.
It is probable that she will continue to have headache, neck and upper back
pain for many years to come.  It is possible that there will be improvement
over the next 3-5 years, particularly if there is a response to the treatments
suggested.

…

I believe that her overall
physical symptomatology will continue, and that the limitations that she
currently experiences will result in a permanent partial disability. …

Her chronic pain does result in a
reduction in her quality of life.

(ii)      Dr. Craig

[30]        
Dr. Craig was qualified as an expert in physical medicine and
rehabilitation. He assessed Ms. Smith on April 19, 2011, and his
report is dated the same day.

[31]        
Dr. Craig opined that Ms. Smith has sustained a moderate soft
tissue injury to her neck and a mild to moderate soft tissue injury to her
posterior shoulder girdle as a result of the accident.  It is his opinion that
she has ongoing headaches due to the soft tissue injuries.

[32]        
His prognosis is as follows:

Ms. Smith has made
functional gains and symptomatic improvements through treatment since the October 23,
2008 accident but continues to have headaches, neck and upper back pain.  I do
not feel that she has reached her point of maximum medical improvement.  Given
that symptoms have been present though for approximately two and a half years,
prognosis is guarded for full resolution of her symptoms.

(iii)     Dr. Helper

[33]        
Dr. Helper, who is also a specialist in physical medicine and
rehabilitation, assessed Ms. Smith on September 15, 2011.  His report
is dated September 19, 2011.

[34]        
Dr. Helper diagnosed Ms. Smith with soft tissue injuries and
mechanical bilateral pain in her neck and upper back and associated frontal
headaches.  He opined that the source of her headaches is most likely soft
tissue or myofascial pain.  Although she has persistent right-sided upper back
symptoms, his primary diagnosis is soft tissue or musculotendinous pain.  He
identified her persistent right-sided upper back symptoms as potentially having
a mechanical source.  He recommends that, if future treatment does not result
in any improvement for her right upper back pain and “periscapular spasm”,
consideration should be given to the diagnostic testing of her right C5-6 and
C6-7 facet joints.

[35]        
In Dr. Helper’s opinion, Ms. Smith’s symptoms – bilateral neck
and upper back pain and associated headaches – are directly related to the
motor vehicle accident.

[36]        
Dr. Helper concluded that Ms. Smith has a poor prognosis for
spontaneous resolution of her bilateral neck and upper back pain and headache
complaints.  She has a guarded prognosis for a natural partial recovery from
her current symptoms.  He opined that it is possible, through further medical
management, that her symptoms may be reduced significantly.  However, it is
unlikely that even with further medical treatment Ms. Smith will
experience a full resolution of her presenting complaints.

(iv)     Dr. Wahl

[37]        
At the request of the defence, Dr. Wahl, an orthopaedic surgeon, examined
Ms. Smith on April 13, 2011, and prepared a report of the same date.

[38]        
In his report, Dr. Wahl opines that Ms. Smith sustained a “mild
musculo-ligamentous strain to her neck”.  In his opinion, Ms. Smith’s
ongoing symptoms “are most likely due to the progression (clinically) of her
cervical degenerative disorder rather than directly due to the injury.”  He
states as follows: “The probability that a minimal injury such as this would
result in what is now 2½ years of disability would be negligible.”

[39]        
He is also of the view that she has “a relatively good prognosis for
continued improvement and positive moderation of her symptoms”.

[40]        
In his report, under the section Facts and Assumptions, Dr. Wahl
states as follows: “The delayed onset of her interscapular right shoulder pain
(two weeks later) seriously questions the causal relationship to the
accident.” [Emphasis Added]

[41]        
Dr. Wahl conceded in cross-examination that six days after the
accident, Ms. Smith had in fact reported to her family doctor that she had
been experiencing right shoulder pain.  He maintained nonetheless that the
reference in his report to a “two-week delayed onset of interscapular right
shoulder pain” was accurate because her pain had increased over this two-week interval.
It is obvious on the face of Dr. Wahl’s report that in reaching his
conclusion on causation, he relied heavily on his erroneous misconception as to
the timing of Ms. Smith’s reports of her symptoms.  In any case, he
conceded that the words “seriously questions the causal relationship to the
accident” should be deleted from his report.

[42]        
Dr. Wahl also agreed in cross-examination that a percentage of the
population would have degenerative signs on x-rays, like Ms. Smith has, and
will remain asymptomatic.  He further agreed that, prior to the accident, Ms. Smith’s
records do not show any complaints of neck or upper back pain.  He also
conceded that some percentage of patients do not recover from the type of
injury  Ms. Smith sustained.

[43]        
In his report, Dr. Wahl recommended that Ms. Smith consult a
neurologist regarding her headaches.  In cross-examination, he acknowledged
that he would defer to Dr. Robinson in this regard.

(e)      Conclusions Regarding Ms. Smith’s Condition

[44]        
The assessment of the severity of Ms. Smith’s current headache and neck
and upper back symptoms necessarily requires the Court to assess her
credibility and the reliability of her evidence regarding her complaints and
reported symptoms: Szymanski v. Morin, 2010 BCSC 1 at para. 106; Shapiro
v. Dailey, 2010 BCSC 770 at para. 35, var’d on other grounds 2012 BCCA
128; and Drodge v. Kozak, 2011 BCSC 1316 at para. 69.

[45]        
As defence counsel emphasized in his closing submissions, the
interpretation, reporting and assessment of the level of pain suffered by Ms. Smith
is, at its core, a subjective exercise.  The medical opinions as to prognosis
have been largely based on the symptoms reported by her.  The weight that can
be given to those opinions ultimately turns on the Court’s assessment of Ms. Smith’s
credibility and the consistency of her evidence at trial with the information she
previously communicated to the various healthcare professionals who treated and
assessed her: Edmondson v. Payer, 2011 BCSC 118 at para. 21, aff’d
2012 BCCA 114.

[46]        
The observations of the Court in Fan v. Chana, 2009 BCSC 1127 at para. 73,
var’d on other grounds 2011 BCCA 516, are apt in this case:

…
As courts have observed on any number of occasions, the approach taken by
medical professionals is not forensic: they assume that the patient is
accurately reporting to them and then set about a diagnosis that plausibly fits
the pattern of the complaint.

[47]        
Accordingly, I turn to comment on Ms. Smith’s credibility.

[48]        
The defendants vigorously challenge Ms. Smith’s credibility and
contend that she has engaged in fabrication and exaggeration regarding her
current condition and its effect on her functioning.  Courts in this province
have repeatedly stated that the absence of objective physical findings is not determinative
as to whether a plaintiff continues to suffer from chronic pain. However, I am mindful of the caution expressed by the Court in Maslen
v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 at para. 15.1 (C.A.), that “courts
should exercise caution when there is little objective evidence of continuing
complaints of pain persisting beyond what the defence asserts is the ‘normal
recovery period’.”

[49]        
I have considered all of the examples of what the defence alleges
were inconsistencies in Ms. Smith’s testimony that point to her lack of
credibility and reliability.  I do not regard all of the examples as
constituting inconsistencies.  Moreover, I am not persuaded the
inconsistencies that can be found are particularly significant in the context
of all of the evidence.

[50]        
Defence counsel points out that Ms. Smith has changed her evidence
concerning her anticipated post-accident earnings from the prawn fishery.  In
her examination for discovery, she testified that she anticipated she would
have earned $5,000 in each of 2009 and 2010.  In contrast, she testified at
trial that she would have earned $6,185.75 and $7,454.50 respectively in those
years.  She explained that her review of the pre-accident prawning records, which
were retrieved after the discovery from her father-in-law and the Canadian
Fishing Company, refreshed her memory.  These records show that in the years from
2002 until the accident, Ms. Smith was paid more than her husband’s other
crew members.  She also explained that her inability to recall this information
at the examination for discovery was attributable to her pounding headaches and
inability to concentrate at the time.  In the context of the evidence as a
whole, I found her explanation credible and I accept her testimony on
this point.

[51]        
The defence also emphasizes that, in response to a question on her discovery
regarding relief of her headaches, Ms. Smith did not mention that with the
onset of her more severe headaches she lies down in a dark room.  I note
that her husband and daughter each corroborated Ms. Smith’s evidence on
this point.

[52]        
Defence counsel also points out that, although Ms. Smith does her
husband’s bookkeeping and prepares his tax returns, at trial she stated that “off
the top of her head”, she could not recall her husband’s annual income.  Her
daughter credibly testified that since the accident, Ms. Smith “seems like
she is not thinking straight” and she “sometimes has trouble remembering things”.

[53]        
Although Ms. Smith’s evidence on these two points is a
consideration to be weighed in the Court’s overall assessment, I have
concluded that, on balance, these two points are not particularly significant
in the context of her evidence as a whole.

[54]        
Overall, I found Ms. Smith to be a credible and forthright
witness.  She presented as a straightforward woman who at times found aspects
of the litigation process to be somewhat disconcerting.  I accept that, on
occasion, her concentration and recall was less than optimal at both her
discovery and at trial. For the most part, however, her evidence was not
meaningfully challenged on cross-examination.  I found her evidence
regarding her symptoms reliable and consistent with her reported level of
function between the date of the accident and the date of trial.  Moreover, her
testimony at trial was strikingly consistent with what she reported to the
various medical doctors who assessed her.  During their assessments, none of
the four medical experts, including Dr. Wahl, noted any aberrant
pain-related behaviour or “red flags” that Ms. Smith was fabricating or
exaggerating her symptoms.  Her frustration at her current limitations and the
impact that her condition has had on her family life was palpable in her
testimony.  I do not find that she embellished or exaggerated the nature
or severity of her symptoms to advance her litigation objectives.

[55]        
I am fortified in reaching this conclusion by the corroborative
evidence of Ms. Smith’s husband and her 17-year-old daughter regarding
their respective observations with respect to the changes in Ms. Smith
after the accident.  Although Mr. Smith was sometimes a poor historian, he
presented as a sincere witness who genuinely tried his best to give accurate testimony.
I found both his testimony and that of his daughter regarding their respective
observations of Ms. Smith to be credible and reliable.

[56]        
I note that, at trial, objection was taken by the defence to
evidence being elicited from Ms. Smith’s daughter and her husband
regarding Ms. Smith’s contemporaneous complaints of pain.  I ruled
that the evidence be heard and I reserved my ruling as to the
admissibility of that evidence.

[57]        
In closing submissions, the defence conceded that those statements are
properly admissible in light of his contention that Ms. Smith has
exaggerated and fabricated her symptoms.  These out-of-court statements are
admitted, not for the truth of their contents, but rather to rebut the defence
allegations of fabrication: Aberdeen v. Township of Langley, 2006 BCSC
2063.  In any case, in making my findings, I have not relied on the testimony
of Ms. Smith’s husband and daughter regarding Ms. Smith’s out-of-court
complaints of pain.

[58]        
I turn to consider causation.

[59]        
The primary test to be applied in determining causation is commonly
articulated as the “but for” test: a defendant will be fully
liable for the harm suffered by a plaintiff, even if other causal factors were
at play, so long as the plaintiff establishes a “substantial connection”
between the injuries and the defendant’s negligence beyond the de minimus
range: Farrant v. Latkin 2011 BCCA 336 (B.C.C.A), at paras 9 and 11; Athey
v. Leonati, [1996] 3 S.C.R. 458; Blackwater v. Plint, 2005 SCC 58; Resurfice
Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32.

[60]        
While the defendant concedes that Ms. Smith sustained a soft tissue
injury in the accident, he argues her current symptoms are not due to the
injuries she sustained in the accident.  Rather, he contends that those
symptoms are manifestations of her pre-existing condition – namely the degenerative
changes shown on her x-rays.

[61]        
On the evidence, I find that prior to the accident, Ms. Smith did
not experience symptoms relating to her neck or upper back.  I do not
regard the one entry in 2007 in Dr. Lam’s records referring to occasional
headaches as a significant consideration in determining causation.  I accept
Ms. Smith’s explanation that, prior to the accident, the frequency of
those headaches was every few months.

[62]        
I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig
and, where they differed, I prefer their opinions to that of Dr. Wahl.
I found each of Dr. Robinson, Dr. Helper, and Dr. Craig,
who are very well-qualified and experienced practitioners, to be careful and fair-minded
in their testimony.  Their opinions, without exception, were not weakened in
cross-examination.  Each of the doctors persuasively discounted Dr. Wahl’s
opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays
is the cause of her current symptoms.  While Dr. Wahl is no doubt a
well-qualified orthopaedic surgeon, his practice is focused on the surgical
management, not the medical management, of the spine.  Dr. Wahl clearly
had not reviewed Ms. Smith’s medical records as carefully as the other expert
witnesses and as I mentioned earlier his report was predicated on a
misconception as to the timing  of the onset of Ms. Smith’s symptoms.  Given
the significant concessions he made in cross-examination and the Court’s impression
that he displayed a somewhat compromised objectivity in preparing his report, I consider
it unsafe to rely on his opinion.

[63]        
While I recognize the dangers inherent in applying simple temporal
reasoning when determining legal causation, on the totality of the evidence, I find
that it was the injuries Ms. Smith sustained in the accident that have caused
her current constellation of neck, upper back and headache symptoms.  Ms. Smith
has proved, on a balance of probabilities, that but for the accident, she would
not have experienced these symptoms.

[64]        
Insofar as the assessment of damages, in accordance with Athey,
at para. 36, I must consider Ms. Smith’s  pre-existing
condition and whether there was a “measurable risk that the pre-existing
condition would have detrimentally affected her regardless of the defendant’s
negligence”.  This is pertinent because Ms. Smith is only entitled to be
restored to her original, pre-accident position.  The evidence I prefer
does not support a finding that, absent the accident, there was a measurable
risk that Ms. Smith would have experienced her current symptoms or that
her pre-existing degenerative changes would have become symptomatic.

[65]        
In summary on this point, Ms. Smith’s chronic headaches and neck
and upper back pain and discomfort which were caused by the accident have
persisted for some three and a half years.  She experiences episodic flare-ups.
The pain fluctuates in intensity and is aggravated by physical activity.  Ms. Smith’s
symptoms are exacerbated by the physical demands of the commercial salmon and
herring fisheries.  She can no longer engage in the prawn fishery.  She has
constant and daily headaches which vary in intensity.  The headaches are
usually of a mild to moderate severity, but at least a few times per week they
become severe enough that she needs to rest in a quiet environment.  For the
most part, however, even though she describes feeling like she is “hanging on
by a thread”, she forces herself to carry on with her fishing work and with
maintaining her household routines and family life.  In order to carry on, she
takes prescription medication on a daily basis.

[66]        
There is a possibility that, by undertaking the treatments recommended
by the specialists who testified at trial, Ms. Smith will experience some
improvement in her symptoms and will be able to manage her pain and discomfort more
effectively.  However, I find that it is unlikely that she will make a
full recovery to her pre-accident status.

DAMAGES

[67]        
I next address Ms. Smith’s claim for damages under the
following headings:

(a)      Non-Pecuniary
Damages;

(b)      Loss of Past Earning Capacity and Loss of Future Earning
Capacity;

(c)      Loss
of Housekeeping Capacity;

(d)      Cost
of Future Care; and

(e)      Special Damages.

(a)      Non-Pecuniary Damages

[68]        
Ms. Smith seeks an award of $100,000 for non-pecuniary damages.  Counsel
for the defence concedes that she sustained injuries in the accident and that
she is entitled to fair compensation for those injuries.  However, the defence
submits that if the Court accepts that Ms. Smith’s current complaints are
entirely attributable to the accident, non-pecuniary damages should be assessed
in the range of $45,000-$50,000.

[69]        
Non-pecuniary damages are intended to compensate a plaintiff’s pain,
suffering and loss of enjoyment of life.  The award should compensate a
plaintiff for those damages he or she has suffered up to the date of the trial
and for those he or she will suffer in the future.  The essential principle arising
from the authorities is that an award for non-pecuniary damages must be fair
and reasonable to both parties and should be measured by the adverse impact of
the particular injuries on the individual plaintiff: Hmaied v. Wilkinson, 2010
BCSC 1074 at para. 55.  While fairness is assessed by reference to awards
made in comparable cases, it is impossible to develop a “tariff”; each case is
decided on its own unique facts: Lindal v. Lindal, [1981] 2
S.C.R. 629 at 637; Kuskis v. Hon Tin, 2008 BCSC 862 at para.136; and Drodge
at para. 134.

[70]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave
to appeal to SCC refused [2006] S.C.C.A. No. 100, the B.C. Court of Appeal
enumerated the factors to be considered in awarding non-pecuniary damages. The
non-exhaustive list includes: the age of the plaintiff; the nature of the
injury; the severity and duration of pain; the degree of disability; the
impairment of family, marital, and social relationships; and loss of lifestyle.

[71]        
The assessment of non-pecuniary damages is necessarily influenced by the
individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[72]        
I have concluded that the injuries Ms. Smith sustained in the
accident have caused her pain, suffering and loss of enjoyment of life.  Earlier
in these reasons I summarized my findings regarding the progression of her
symptoms.

[73]        
The injuries that Ms. Smith sustained in the accident have
materially impacted her life and she will continue to endure some limitations
in the long term.  On the totality of the evidence, I find that her
symptoms, and in particular her chronic headaches, have and will continue to significantly
diminish the quality of her life.  I have considered the adverse emotional
impact of her inability to carry on her commercial fishing work in the same
manner as before the accident.  Her family life has also been detrimentally affected;
her relationship with her husband and daughters has been strained.  She is no
longer the cheerful wife and mother with a generally positive attitude that she
was prior to the accident.  According to her daughter Ms. Smith “rarely smiles”.
The evidence supports a finding that since the accident Ms. Smith has become
more impatient , critical and irritable ; she is easily frustrated.  She should
not be penalized for pushing herself to do her regular activities despite her
injuries.  The limitations her injuries have cumulatively imposed upon her have
been distressful and have created a genuine emotional strain on her.

[74]        
I have considered the following cases cited by Ms. Smith’s counsel
on the issue of quantum of non-pecuniary damages: Gojevic v. Philpott,
2002 BCCA 483; Foran v. Nguyen, 2006 BCSC 605; Barnes v. Richardson,
2008 BCSC 1349; Mohan v. Khan, 2012 BCSC 436; and Morlan v. Barrett,
2012 BCCA 66.

[75]        
I have also considered the cases cited by defence counsel: Butler
v. Blaylock Estate, [1981] B.C.J. 31 (Q.L.)(S.C.); Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.); Ching v. McCabe, 2006 BCSC 1589; Gilmour
v. Machibroda, 2008 BCSC 260; Salvatierra v. Vancouver (City),
2008 BCSC 537; Dutchak v. Fowler, 2010 BCSC 128; Schmidt v. Hawkins,
2010 BCSC 1154; Hmaied; and Harris v. Zabaras, 2010 BCSC 97.

[76]        
I have reviewed all of the authorities provided by both counsel.  Although
the cases are instructive, I do not propose to review them in detail as
they only provide general guidelines.  In broad terms, the cases relied upon by
the defence involve plaintiffs with symptoms that had significantly improved by
trial.  In considering Ms. Smith’s particular circumstances, I conclude
that a fair and reasonable award for non-pecuniary damages is $80,000.

(b)      Loss of Past Earning
Capacity and Loss of Future Earning Capacity

[77]        
Ms. Smith submits that she should receive an award of $29,644.13 for
gross loss of past earning capacity up to the date of trial, and an award in
the range of $125,000 for future loss of earning capacity.

[78]        
The defence submits that Ms. Smith is not entitled to any
compensation for either the loss of past earning capacity or the loss of future
earning capacity.

Legal Framework

[79]        
An
award for loss of future earning capacity represents compensation for a pecuniary
loss: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 32.
The legal principle that governs the assessment of damages under this head is
that, insofar as is possible, the plaintiff should be put in the position he or
she would have been in but for the injuries caused by the defendant’s
negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para. 185,
leave to appeal to SCC refused [2009] S.C.C.A. No. 197.  Compensation must
be made for the loss of earning capacity and not for the loss of earnings: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y., 2011
BCSC 944 at para. 182.

[80]        
The
recent jurisprudence of the Court of Appeal affirms that the plaintiff must
demonstrate both an impairment to his or her earning capacity, and that there
is a real and substantial possibility that the diminishment in earning capacity
will result in a pecuniary loss.  If the plaintiff discharges that requirement,
he or she may prove the quantification of that loss of earning capacity, either
on an earnings approach or a “capital asset” approach: Perren v. Lalari,
2010 BCCA 140 at para. 32.  Regardless of the approach, the Court must
endeavour to quantify the financial harm accruing to the plaintiff over the
course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19;
X. v. Y. at para. 183.

[81]        
As
enumerated by the Court in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45, the principles which inform the assessment of loss of
earning capacity include the following:

(1)      The standard
of proof in relation to hypothetical or future events is simple probability,
not the balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
Hypothetical events are to be given weight according to their relative
likelihood: Athey at para. 27.

(2)      The Court
must make allowances for the possibility that the assumptions upon which an
award is based may prove to be wrong: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).  Evidence
which supports a contingency must show a “realistic as opposed to a speculative
possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).

(3)      The Court
must assess damages for loss of earning capacity and not calculate them
mathematically: Mulholland (Guardian ad litem of) v. Riley Estate (1995),
12 B.C.L.R. (3d) 248 at para. 43.  The overall fairness and reasonableness
of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.
The assessment is based on the evidence, taking into account all positive and
negative contingencies.

[82]        
Although
a claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39.  It is a claim for the loss of
the value of the work that an injured plaintiff would have performed but was
unable to perform because of the injury: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32;
X. v. Y. at para. 185.

[83]        
This
court in Falati, at para. 40, summarized the pertinent legal
principles governing the assessment of post-accident, pre-trial loss of earning
capacity and concluded that:

[40]      …
the determination of a plaintiff’s prospective post-accident, pre-trial losses
can involve considering many of the same contingencies as govern the assessment
of a loss of future earning capacity. … As stated by Rowles J.A. in Smith
v. Knudsen, 2004 BCCA 613, at para. 29,

“What
would have happened in the past but for the injury is no more ‘knowable’ than
what will happen in the future and therefore it is appropriate to assess the
likelihood of hypothetical and future events rather than applying the balance
of probabilities test that is applied with respect to past actual events.”

[84]        
With
respect to the loss of earning capacity from the date of the accident to the date
of trial, the defendants are only liable for the net income loss, as defined in
s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.  In
Lines at para. 184, the Court of Appeal held that “it was the
intention of the Legislature to give a discretion to the judge to determine
what period or periods are appropriate for the determination of net income loss
in all of the circumstances”: X. v. Y. at para. 187.

i.          Loss of Earning Capacity to the Date of Trial

[85]        
Ms. Smith claims loss of past earning capacity only in relation to
the prawn fishery.  The defence submits that it was the condition of her knees and
not her accident-related injuries that precluded her from participating in this
fishery up to the date of trial.

[86]        
Typically, Mr. Smith engages two other crew members to assist him
with the prawn fishery.  This work is physically demanding and requires repetitive
overhead lifting and the repetitive lifting of 300 baskets, each weighing 15-20
pounds.  During the prawn opening, typically the crew works long hours and  sometimes
they work seven days a week for several weeks.

[87]        
I am satisfied that, absent the accident, Ms. Smith would have
participated in the prawn fishery in 2009, 2010 and 2011, and that she was
unable to do so because of her accident-related injuries.  The medical evidence
supports this finding.  Dr. Craig states in his report that chronic
myofascial pain in the neck and shoulder girdle tends to be aggravated by
repetitive use of the arms and shoulders.  In his opinion, it was reasonable
for Ms. Smith not to participate in the prawn fishery because she could
not tolerate the repetitive carrying and lifting and the prolonged set posture
associated with that work.  In cross-examination, Dr. Helper also
expressed the same view.  Notably, no opinion evidence was tendered at trial
that but for the condition of her knees  Ms. Smith would be in fact
capable of performing the physical requirements of the prawn fishery.

[88]        
I have not overlooked Ms. Kemp’s evidence regarding the
results of her testing of Ms. Smith during the functional capacity
evaluation.  For example, during the testing, Ms. Smith had the strength
to lift up to 70 pounds.  However, I am not persuaded that the conditions
in which that testing was conducted can properly be extrapolated to the actual
demands of the prawn fishery.  Furthermore, after the first day of Ms. Kemp’s
testing, Ms. Smith was awake for several hours and, in the middle of the
night, had to take pain medication.

[89]        
In view of the fact that Ms. Smith has carried on working in the salmon
and herring fisheries since the accident, I cannot accept as a tenable
proposition that absent the accident, her knees would have precluded her from
prawning.  Rather, the evidence establishes that it was the significant amount
of repetitive heavy lifting specific to the prawn fishery which precluded her
from continuing in that line of work after the accident.  Moreover, there was
no opinion evidence that, absent the accident, the condition of Ms. Smith’s
knees would have precluded her from participating in prawning up to the date of
trial.

[90]        
Ms. Smith’s husband and brother-in-law were co-owners of a prawn
fishing boat.  Historically, they had always conducted their fishing operations
separately.  However, in 2009 and 2010 they entered into an arrangement for
pooling the income from their respective prawning trips.  In closing
submissions, the defence contended that, absent the accident, Ms. Smith likely
would not have participated in the prawn fishery in 2009 and 2010 because Mr. Smith
had entered into this “pooling” arrangement with his brother.  Ms. Smith
was never confronted with this theory and accordingly she was never afforded an
opportunity to dispute the allegation.  In all the circumstances I do not
accept the defendant’s submissions on this point.

[91]        
As an alternate submission, the defence submits that, if the Court
determines an award for past loss of earning capacity is appropriate, Ms. Smith
should be compensated not in the amount she claims, but rather on the basis of
the amounts actually paid to each of Mr. Smith’s crew members in
2009-2011.

[92]        
The prawning records produced at trial for the years prior to the accident
were not complete.  However, the records that were produced for the years 2002-2008
show that prior to the accident, Ms. Smith received a higher percentage of
the crew share of income than the other crew members.  Ms. Smith received
an average of 60% of the gross crew earnings per prawning trip.  According to Mr. Smith,
he paid his wife a greater amount than the other crew members because of the
additional services she provided, such as picking up supplies and performing
bookkeeping services.

[93]        
From 2009-2011, Mr. Smith hired other crew members to replace the
services Ms. Smith would have performed on the prawning boat.  For those
years, Ms. Smith received no compensation in relation to the prawn fishery.

[94]        
The defendant points out that Mr. Smith paid himself a higher
portion of the crew share from 2009-2011 than he paid himself in the years
prior to the accident when Ms. Smith was a crew member.  The fact that Ms. Smith’s
husband received more income in the subject years is of no moment and should
not affect Ms. Smith’s position in relation to the defendant tortfeasor: Hall
v. Miller (1989), 41 B.C.L.R. (2d) 46 (C.A.).

[95]        
The defendant also argues that Mr. Smith historically did not pay Ms. Smith
based upon the value of her services, but instead engaged in income-splitting
with her.  In my view, there are no legal grounds for the defendant to dispute
the basis upon which Mr. Smith historically paid Ms. Smith.  This flows
from 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.

[96]        
In applying the principles summarized in Loik v. Hannah, 2009
BCSC 1196, Ms. Smith is entitled to be compensated for the loss of her
earning capacity.  Ms. Smith has suffered a real pecuniary loss and therefore
she should be compensated for what she would have earned for her involvement in
the prawn fishery absent the accident.

[97]        
I find that from 2009-2011, the percentages of the crew’s share Ms. Smith
would have received would have varied depending on whether her husband and
brother-in-law were pooling their respective incomes.  On the totality of the
evidence, I find that in 2009, she likely would have been paid 35% of the
crew share.  In 2010, with the exception of the one trip sold through Hub City Fisheries
in which she would have earned 60% of the crew share, she likely would have
earned 30% of the crew share.  Her share would have decreased to 30% in 2010
because in that year the third crew member also participated in the pooling.  The
pooling arrangement ceased in 2011.

[98]        
In 2011, Mr. Smith bought a custom-made trailer and “live tank” in
order for Ms. Smith to transport prawns to the buyers.  That year, she
earned $4,750 from undertaking this work.  The defence concedes that Ms. Smith
reasonably mitigated her damages in 2011 by undertaking this fishery-related
trucking work.

[99]        
However, the defence submits that any award should be reduced to reflect
Ms. Smith’s failure to mitigate her damages by finding alternate work in
2010.  Given her age, training and skills, I am not persuaded by the
defendant’s contention that in this one-year period she could have
realistically pursued alternate forms of employment.  Moreover, the
unpredictability of her chronic headaches would make it very difficult for her
to commit to any type of structured work schedule.  In the result, I have
not reduced the award for loss of past earning capacity on account of Ms. Smith’s
failure to mitigate her damages.

[100]     I accept
Ms. Smith’s submission that the following table accurately sets out what
she would have earned for prawning in the years 2009-2011 but for the accident:

[101]    
Ms. Smith also claims $2,000 for what she says would have been her
share of the compensation Mr. Smith received for undertaking a biological
station charter in 2010.  In my view, the evidence falls short of establishing
that, but for the accident, Ms. Smith would have participated in the biological
station charter in 2010.  Nor does the evidence establish the amount she would
have earned had she participated in the charter.

[102]     In
assessing the totality of the evidence, and taking into account all of the
contingencies, I exercise my discretion as follows: I assess the
gross value of Ms. Smith’s loss of earning capacity from the date of the
accident to the end of December 2009 as $6,185.72, and as $7,454.50 for 2010 .  In
2011, I find that she would have earned $18,753.91.  However, from the sum
of $18,753.91, I have deducted $4,750, which is the amount Ms. Smith earned
for carrying out the trucking work for her husband.  On my calculations, the
sum for 2011 totals $14,003.91.

[103]     In summary
on this issue, I conclude the accident has resulted in a total past loss
of income to Ms. Smith of $27,644.13 for the period from the date of the accident
to trial.  As Ms. Smith is only entitled to recover her net income losses,
I direct counsel to carry out the necessary calculations in order to
determine the appropriate net loss.  Counsel may apply if they are unable to
agree as to this amount.

ii.         Loss of Future Earning Capacity

[104]     Ms. Smith
seeks an award of $125,000 for loss of future earning capacity.  The defence
submits that she has not met the burden of proof in establishing that she has
suffered a diminishment of her future earning capacity attributable to the
accident.

[105]     The
authorities direct that the essential task of this Court is to compare the
likely future of Ms. Smith’s working life if the accident had not happened
with her likely future working life after the accident: Gregory at para. 32;
Rosvold at para.11; and X. v. Y. at para. 188.

[106]    
This claim raises two essential questions:

(a)      has Ms. Smith’s
earning capacity been impaired by her injuries? and, if so,

(b)      what
compensation should be awarded for the financial harm that will accrue over
time?

Discussion

[107]     For the
reasons that follow, I conclude that Ms. Smith’s accident-related
injuries have impaired her income-earning capacity and that there is a real and
substantial possibility that this impairment will continue to harm her earning
capacity into the future.

[108]     As a
starting point in my analysis, I note that since 1989, with the exception
of the one-month telemarketing job, Ms. Smith’s entire working life has
been in commercial fishing.  On the totality of the evidence, I find that
the physical limitations caused by her accident-related injuries have impaired
her employability in that occupation.

[109]     As I stated
in the preceeding section, Ms. Smith is unable to perform her functional
duties in the prawn fishery because she cannot tolerate the repetitive carrying
and lifting that is required in that occupation.  She is now unable to perform
a job that, absent the accident, was a viable and realistic option for her.  She
has therefore proven a loss of earning capacity.  There is a real and
substantial possibility that this impairment will impact her potential earnings.

[110]    
Additionally, Ms. Smith’s abilities in the salmon and
herring fisheries have been diminished because of her accident-related injuries.
These injuries have rendered her a less marketable employee.  Although Dr. Craig
expects that Ms. Smith should be able to continue with the salmon and
herring fishing, he opined that her neck and upper back symptoms would
interfere with her ability to perform the heavier physical aspects of this work.
It is critical to appreciate that while Ms. Smith has continued to
perform her duties in the salmon and herring fisheries, she has modified how
she performs those duties and she requires some accommodation when her symptoms
are exacerbated by the physical demands of the work.  Her husband has
accommodated her by modifying her duties and on occasion anchoring the fishing boat
in order to permit her to lie down.  If Ms. Smith is unable to work for her
husband in the future because of marital discord, economic factors or other
vagaries of life, there is a real possibility that it would be very difficult
for her to find employment with another commercial fishing boat captain.  There
is a real and substantial possibility that this impairment would also impact
her potential earnings in the future.

[111]    
If Ms. Smith has to retrain because of her knee problems,
there is a real possibility that the injuries she sustained in the accident – particularly
her chronic headaches – would restrict her ability to be employed on a
full-time basis.  Her injuries have deprived her of the ability to take
advantage of job opportunities that given her skills and experience might
otherwise have realistically been open to her.
Although the degree of her impairment in this regard is relatively modest, it
exists nonetheless.

[112]     On the
totality of the evidence, I am satisfied that on account of her accident-related
injuries and consequent impairment of earning capacity, there is a real and
substantial possibility that Ms. Smith’s future earnings will be less than
they would have been had she not been injured and, therefore, that she will
suffer a future pecuniary loss.  Accordingly, I must determine, in light
of all of the evidence, what is fair and reasonable compensation to Ms. Smith
for the pecuniary loss accruing because of her impairment.

[113]     It is well
recognized that unknown contingencies and uncertain facts make it impossible to
calculate the loss of future earning capacity with any precision.  The process
of quantification is not a mathematical calculation, but rather one of
assessment based on the evidence: Gray v. Fraser Health Authority, 2009
BCSC 269 at para. 121.

[114]     In my
assessment, I have considered the income which Ms. Smith historically
earned from fishing and the income generated by Mr. Smith’s prawn fishery,
both prior to and after the accident.  I have also factored into my
assessment that, into the future, there is a real and substantial possibility
that Ms. Smith will continue to earn income from the fishery-related
trucking work that she commenced in 2011.  The evidence in this case mandates
that I also consider the following contingencies which reflect the
probabilities of the future income loss occurring:

(i)             
Beyond the various doctors’ general remarks about Ms. Smith’s knees
and the fact that she is overweight, there was no cogent medical evidence
adduced regarding the predictable deterioration of the condition of her knees.  Although
it is difficult to pinpoint with precision when her knee surgery will occur, the
evidence as a whole supports a finding that at some point in the future the
condition of her knees will cause her to miss work or to have a shortened work
life.  This is a significant negative contingency.

(ii)            
I have also factored into my assessment the contingency that Ms. Smith
could be prevented from taking on the fishery work or have a shortened work
life because of unrelated illness, injury or disability.

(iii)           
I have also considered Mr. Smith’s evidence that in the near
future, he plans to sell the prawning boat that he currently owns with his
brother and that he intends to purchase his own prawning boat.  Absent the
accident, this would have potentially provided Ms. Smith a greater ability
to earn a higher income from the prawn fishery.

[115]     Taking
into account all of the evidence and the relevant contingencies, I assess Ms. Smith’s
loss of future earning capacity from the date of trial to be $37,000.  I am
satisfied that in all of the circumstances this is a fair and reasonable award.

(c)      Loss of Housekeeping Capacity

[116]     Ms. Smith
seeks an award of $5,000 for past loss of housekeeping capacity and $15,000 for
future loss of housekeeping capacity.  The defence submits that the evidence
does not support such a claim.

[117]    
In Dykeman v.
Porohowski, 2010 BCCA 36 at para. 28, Newbury J.A. summarized the
governing principles with respect to awarding damages for the loss or
impairment of housekeeping capacity.  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 the 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; X. v. Y. at para. 246.

[118]     In assessing damages under this head,
the authorities mandate that the Court must carefully scrutinize the gratuitous
services provided by the family member.  A relatively minor adjustment of
duties within a family will not justify a discrete assessment of damages: Campbell
v. Banman, 2009 BCCA 484 at para. 19.  In Dykeman at para. 29,
Newbury J.A. cautioned that:

Instead,
claims for gratuitous services must be carefully scrutinized, both with respect
to the nature of the services – were they simply part of the usual ‘give
and take’ between family members, or did they go ‘above and beyond’ that level?
– and with respect to causation – were the services necessitated by the
plaintiff’s injuries or would they have been provided in any event?  [Emphasis
in original]

[119]     Ms. Smith
testified that since the accident, she has carried on with her household tasks;
however, she experiences considerable difficulties and discomfort in doing so.  She
typically has to break up the housework and her daughters now provide her with
some assistance.  While I accept that since the accident her children have
assumed some greater responsibilities for housekeeping matters, I am not
persuaded on the evidence that the adjustment is sufficiently significant such that
it justifies a discrete award of damages.

[120]     In so
finding, I note that I have considered Ms. Smith’s difficulties
and discomfort in performing household tasks as a factor in the assessment of
non-pecuniary damages.

(d)      Cost of Future Care

[121]     Ms. Smith
seeks compensation of $60,000 for the cost of future care.  The defence submits
that an award of $15,000 would be appropriate.

[122]     The assessment
of this pecuniary claim is to be based on what is reasonably necessary on the
medical evidence to sustain and promote the plaintiff’s mental and physical
health: Milina at 78; Gigmac v. Insurance Corporation of British
Columbia 2012 BCCA 351 at para. 30.  In assessing what is reasonably
necessary to promote the plaintiff’s health, the court should consider whether
the plaintiff would likely use the items or services in the future: Penner
v. Insurance Corporation of British Columbia, 2011 BCCA 135 at paras. 12-14;
Drodge at para. 194.

[123]     The
quantification of damages for the cost of future care is an assessment and not
a precise accounting exercise.  Since the assessment necessarily entails the
prediction of future events, adjustments must be made for contingencies.  The
extent, if any, to which a cost of future care award should be adjusted for
contingencies depends upon the specific care needs of the plaintiff and the
expenditures that reasonably may be expected to be required.  The assessment
must take into account the prospect of any improvement in the plaintiff’s
condition or, conversely, the prospect that additional care will be required: O’Connell
v. Yung, 2012 BCCA 57 at paras. 67-68; Gilbert v. Bottle, 2011
BCSC 1389 at para. 253.

[124]     I turn
now to consider each of the items claimed.

[125]    
Ms. Smith submits that based upon her past use, the future cost of her
medication is as follows:

a.     Tramadol – $50 per month = $600 per year

b.     Nortriptyline – $40 per month = $480 per year

c.     Rizatriptan – $250 per year

d.     Baclofen – $90 per year

[126]     The total amount sought for medication is $1,420 per year. Assuming
her life expectancy as age 84 and applying the pertinent multiplier, Ms. Smith’s
counsel calculates the amount to be awarded for medication as $26,000.

[127]     The defendant
acknowledges that it would be reasonable to make some allowance for
prescription medication.  While he does not dispute the accuracy
of the $26,000 calculation, he submits that it would be appropriate to
award Ms. Smith $13,000 for this item.  Firstly, he says that the Court should factor into the assessment the possibility for
improvement in Ms. Smith’s condition.  I agree that this is a
contingency which is properly factored into the assessment.  The defence also
emphasizes that, absent the accident, Ms. Smith would require some of this
prescription pain medication for her knees.  In my view, the evidence does not
support a finding that, absent the accident, Ms. Smith would have been
prescribed any of the above-referenced medications.

[128]     I turn
next to Dr. Wahl’s recommendation that Ms. Smith engage in a
supervised and structured strengthening fitness program.  There was no evidence
tendered at trial of the cost, but the defence is prepared to concede that
$2,000 would be appropriate for this item.

[129]     Dr. Helper
recommended that Ms. Smith receive some counselling for depression.  However,
there was no evidence as to the cost of that treatment tendered at trial, nor
any evidence from Ms. Smith that she would likely access such counselling.

[130]     Dr. Craig
recommended six to eight sessions of intramuscular needling to be administered
by a physiotherapist.  He also recommended that Ms. Smith undergo another
trial of trigger-point injections or three Botox injections for her neck and
upper back pain.

[131]     As treatment
for her headaches, Dr. Robinson recommended Botox to be administered four
times a year, the cost of which would be approximately $1,625 on an annual
basis.  Applying the relevant multplier, the plaintiff says she should be
awarded $30,000 for this item.  Although the recommendation was made in August 2011
by Dr. Robinson, Ms. Smith did not pursue the Botox treatments until
sometime in early 2012, after this trial had commenced.  Ms. Smith’s evidence
at trial was that the Botox treatment she had in April 2012 provided her with some
limited relief from her headaches.

[132]     The
defence says that this is too short a window to assess the efficacy of the
Botox treatments.  Further, they submit that it is unlikely that Ms. Smith
will even pursue the treatments.  I am satisfied that with the elimination
of any financial impediment, Ms. Smith would pursue the Botox treatments
for her headaches.  In my assessment, I have considered that if the
treatment ultimately proves to be ineffective, it is likely Ms. Smith will
discontinue it.  On the other hand, if it is effective, the treatment may be
extended for a number of years.

[133]     In summary
on this issue, I am satisfied that the prescription medication referred to
above, the Botox treatments for her headaches, the physical fitness program and
the intramuscular needling are all reasonably necessary on the medical evidence,
and that with the elimination of any obvious financial impediment, Ms. Smith
would access all of these treatments.  I am not persuaded, however, that
she would access the counselling or the Botox treatments for her neck
recommended by Dr. Craig.

[134]    
On the totality of the evidence and taking into account the relevant
contingencies, I assess an award for the cost of future care in the amount
of $35,000.  This is based on an assessment of the present value of the costs
of care to be incurred in the future.

(e)      Special Damages

[135]     The
parties have agreed to special damages in the amount of $5,084.29.

CONCLUSION

[136]     Ms. Smith’s
damages are assessed at $184,728.42, consisting of the following:

[137]    
I am satisfied that this global amount fairly compensates Ms. Smith
for her losses.

COSTS

[138]    
Ms. Smith is entitled to her costs of this action unless there are
any pertinent circumstances that should be brought to the Court’s attention.

“Dardi J.”