IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121204

Docket: 44156

Registry:
Kamloops

Between:

Heidi Louise
Carson

Plaintiff

And

Susan Ann Henyecz

Defendant

Before:
The Honourable Mr. Justice Powers

Reasons for Judgment

[1]            
Ms. Carson was injured in a motor vehicle accident when her mother
backed into her while she was standing in the driveway of her mother’s home.
Her mother was found to be 100 percent liable when the issue of liability was
tried earlier this year. This decision deals with the assessment of damages.
This assessment is complicated by Ms. Carson’s long history of ongoing
psychological problems.

BACKGROUND

[2]            
Ms. Carson is 39 years of age. She was 35 years of age on May 11, 2008,
when this accident occurred.

[3]            
Ms. Carson was staying at her mother’s residence. Her mother was sitting
in the car in the driveway. Ms. Carson went out to speak to her mother. Ms.
Carson stumbled at the edge of the driveway and when she recovered her balance
her mother was backing the car up towards her. The car struck Ms. Carson
knocking her to the ground. The rear of the car passed over Ms. Carson, but
fortunately the car stopped before the tires came in contact with her.

[4]            
Ms. Carson suffered a compression fracture to her L-1 vertebra. She was
taken to the hospital and received surgery to fuse the vertebrae. This included
the insertion of some metal pins and screws to stabilize the L-1 between the
adjoining vertebrae. The doctors also took a bone graft and inserted this into
the vertebra to repair it.

[5]            
She was placed on narcotic pain medications and muscle relaxants. She
was discharged from the hospital May 29, 2008.

[6]            
Ms. Carson was mobile when she was discharged, but also required the use
a wheel chair or a walker and crutches. She was wearing a body brace. In
September of 2008, her surgeon suggested she wean herself from the body brace
and she did begin to do so in November of 2008.

[7]            
She did have a complication by way of an infection of the wound site.
This was successfully treated by application of medications and regularly
changing the dressings. This was an extra complication for Ms. Carson’s
healing. Her fracture and the infections were well healed by the spring of
2009.

[8]            
In November of 2008, she began to complain of left shoulder pain which
she believes is a possible minor rotator cuff injury. She did not notice this
pain until around November of 2008. She believes it is related to the accident.

[9]            
Ms. Carson has a long history of right knee pain, beginning when she
injured her knee as a child. She was taking medications for this pain and
became addicted to pain medication. In order to try to deal with the addiction,
she went on to a methadone program in 2006, and continued receiving methadone
until March of 2008. In March of 2008, she was concerned about the impact the methadone
was having on her physically and emotionally, and she quit the methadone
program cold turkey. She did this without consulting her doctors. She suffered
through withdrawal for approximately a month, but in April and May before the
accident, she was no longer using narcotic medications.

[10]        
Due to the need to control the pain following the accident and the
surgery, she was again placed on narcotic medications and has been unable to
wean herself from them since.

[11]        
Ms. Carson also has a significant history of psychological problems. One
of the difficult issues in this case is the inter-relationship between the
motor vehicle accident and the psychological problems.

[12]        
Ms. Carson argues that just prior to the accident she was making
significant improvements in her psychological condition and in dealing with her
drug addiction. She argues that as a result of the accident, she suffered
significant physical injury and ongoing pain which required the use of the
narcotic pain medication. She argues that this has led to ongoing dependence on
the medication and significant aggravation of her psychological problems. She
argues that she requires extensive future treatment to deal with these issues.
She also argues she has suffered impairment of her future earning capacity. She
says that she continues to suffer with pain which is aggravating her recovery,
and the prognosis for recovery is guarded.

[13]        
The defendant argues that Ms. Carson should be reasonably compensated
for her physical injuries. The defendant agrees that Ms. Carson did suffer a
temporary aggravation of her pre-existing psychological conditions. The
defendant, however, says the issues are:

1)    What residual
effects, if any, does Ms. Carson suffer as a result of the physical injuries?

2)    What is the
exact duration of Ms. Carson’s psychological condition as a result of the
accident?

3)    Has Ms. Carson
suffered any impairment of her earning capacity, past or future?

4)   
What future care does Ms. Carson require as a result of the accident,
and at what cost? Related to this is whether or not she would actually
participate in any future care if it were provided to her.

MS. CARSON’S PRE-ACCIDENT CONDITION

[14]        
Ms. Carson has presented a medical/legal report from her treating
psychiatrist, Dr. Wiehahn. Dr. Wiehahn first saw Ms. Carson August 27, 2008 and
then saw her again six months later. She then saw Dr. Wiehahn approximately
once a month until the breakdown of the doctor/patient relationship in November
2011. Dr. Wiehahn was satisfied that Ms. Carson had a number of psychological
issues pre-dating the accident, and she continues to have these issues or
problems. Using the Multi Axis diagnosis referred to in the DSM IV text, he
concluded as follows:

Axis I

·       
Dysthymic Disorder as well as Major Depressive Disorder with
recurrent episodes (double depression).

·       
Post Traumatic Stress Disorder since 2001.

·       
Polysubstance abuse/dependence mainly sedatives, narcotics and
drugs to address pain and insomnia.

Axis II

·       
Borderline Personality Disorder (probably main diagnosis).

Axis III

·       
Significant and ongoing pain probably related to previous
accidents.

Axis IV

·       
Interpersonal family issues, lacking primary support.

Axis V

·       
Global Assessment of Functioning remains between 40 and 50. This
translates to a distress level high enough to have someone admitted in an acute
psychiatric unit.

[15]        
Dysthymic disorder is described as a long-term chronic depressive
disorder lasting decades.

[16]        
The post traumatic stress disorder arose out of events that Ms. Carson
described which occurred to her as a result of a conflict with an instructor or
professor when she was attending British Columbia Institute of Technology
(“BCIT”).

[17]        
The substance abuse relates to her long-term use of narcotic pain
medications which pre-dated the motor vehicle accident.

[18]        
The borderline personality disorder which is considered the main
diagnosis creates significant difficulties with regard to Ms. Carson’s
functioning and reaction to stressors in her life and treatment. Dr. Wiehahn
said people with this disorder have difficulty processing experiences they
have. They may be over-reactive and read rejection into personal situations.
They may have unstable lifestyles. Their moods are characterized by being
depressed and at other times overly happy. They experience the world in black
and white.

[19]        
Typical behaviours include a frantic effort to avoid abandonment,
repeated self-harm, suicide attempts, or feeling empty or despondent. They may
also have issues with identity.

[20]        
They will have chronic fluctuating symptomatology.

[21]        
An event like this motor vehicle accident, especially where the driver
was closely related to Ms. Carson, would be a significant destabilizing event.

[22]        
Dr. Wiehahn was of the opinion that Ms. Carson had an enmeshed
relationship with her mother, in other words, it was pathologically close.

[23]        
Dr. Wiehahn was also of the opinion that Ms. Carson would be
significantly susceptible to other events in her life, such as difficulties
with inter-personal relationships or the fact that her mother, shortly after
the motor vehicle accident, was diagnosed with dementia.

[24]        
Ms. Carson also suffered significant eating disorders throughout most of
her life with her weight fluctuating significantly over time.

[25]        
Additional evidence of Ms. Carson’s pre-accident condition is contained
in a “Persons With Disabilities Designation Application” form which she
completed and signed April 23, 2004. She spent approximately three months
preparing this document with the assistance of her mother. The application
records a long list of chronic problems from the time of childhood. She
describes:

·       
severe depression

·       
eating disorder

·       
anxiety attacks

·       
panic attacks

·       
insomnia

·       
persistent physical symptoms that do not respond to treatment,
such as headaches, digestive disorders, and chronic pain

[26]        
She then takes approximately two pages to describe how this has affected
her, including anxiety about going outside, essentially being housebound,
staying in her bedroom under the covers without going out for weeks, and
without eating for weeks on end. She describes chronic insomnia, the inability
to unpack in her apartment, and the inability to maintain proper hygiene. She
refers to an inability to work and having not worked since March of 2001. She
refers to a number of hospitalizations in 2001 for eating disorders and
overdosing on prescription drugs, as well as in 2002. She refers to a number of
attempts at suicide from the time she was 13 up to December of 2001, and
ongoing thoughts about suicide. She advises that she has been depressed since
grade school with constant feelings of helplessness, pessimism, guilt, and
worthlessness.

[27]        
She says she is in bed 90 percent of the time and is completely
incapable of coping with life. She is antisocial and has difficulty being
around people, even her own family, and does not answer the door.

[28]        
Ms. Carson refers to the use of anti-depressants on and off for a
minimum of 15 years without any benefit. She also refers to drug and alcohol
abuse; the alcohol while she was a teenager. She also states that numerous
attempts to seek counselling have been unsuccessful. She says that she has had
numerous traumatic events in her life and never been able to deal with anything
and never fully recovered from anything. She also describes a very difficult
history of inter-personal relationships, including with her own family and dysfunctional
relationships with men. She also refers to what to her was a very significant
event in 2001/2002 involving a sexual harassment case while she was attending
BCIT. Subsequent to that, she returned to Kamloops and lived in her brother’s
home for approximately a year and says that she “… literally stayed in bed
(and almost definitely did not leave the basement suite I was in) for one
year.” She said this isolation continued when she got her own apartment in
2003.

[29]        
She confirms that this was difficult for her to write and the report was
just a very generalized brief history.

[30]        
She also makes reference to her right knee injury in fairly dramatic
terms.

[31]        
Ms. Carson was examined by a psychiatrist at the request of the
defendant. Dr. Paul Janke examined her on June 20, 2012 for approximately two
hours. He also reviewed a number of documents provided to him by defendant’s
counsel. This included the Pharmanet print-out covering the period May 11, 2006
to November 18, 2010. He reviewed a MSP print-out from January 1, 2005 to March
8, 2011 and the clinical records of the surgeon, Dr. Brownlee, and his
consultation notes. He reviewed the clinical records of Dr. Kruger, Ms.
Carson’s general practitioner (“GP”) and Dr. Wiehahn’s clinical records and
medical/legal report.

[32]        
Dr. Janke confirms the pre-accident diagnosis of significant
psychological problems.

[33]        
Dr Janke concludes that Ms. Carson’s reported level of functioning at
the time he saw her was remarkably similar to that described in her disability
application form.

[34]        
Ms. Carson argues that prior to the accident she was coming to grips
with the problems with regard to her addiction to medication. In 2006, at the
urging of her GP, she began a methadone program and stopped taking other
narcotic medications. Methadone itself is a narcotic with unpleasant side
effects, but may be better than some of the other narcotics that Ms. Carson was
taking to excess. She was on the methadone program for approximately two years.
Dr. Janke’s comment was that it did not appear that there was any effort made
to wean her from the methadone. This appears to have simply been a substitution
for the other narcotics. Methadone had significant side effects for Ms. Carson,
including affecting her mood and her ability to function. She had significant
swelling of her legs to the extent that it was difficult for her to bend her
legs. Eventually, being unhappy with the side effects, she decided to stop
taking methadone altogether. She did this without the benefit of assistance
from any medical practitioners and did go through a period of withdrawal. Her
own evidence is, however, that by April and May of 2008, she was feeling much
better. She said she was more optimistic about life and had contemplated
further education, including writing an LST exam to see whether law school
would be a suitable option for her.

[35]        
Dr. Kruger said in his medical/legal report of May 30, 2011, that she
“was the healthiest during those 2-3 months that I have ever seen her.” This
refers to the period just before the accident. However, it should be noted that
the only time he saw her in the two or three months before the accident was
twice in April of 2008. Dr. Kruger gave evidence at the trial and confirmed
that he began treating her in July of 2006. He confirmed he was concerned about
the amount of narcotic medication she had been prescribed prior to his treating
her, and with the amount that she continued to take after he was treating her.
He encouraged her to try to deal with what he felt was an excessive use of
narcotics. Eventually, as I said earlier, she did become involved in a methadone
treatment program.

[36]        
He confirmed that throughout the period he treated her before the
accident, she did have periodic complaints of back pain, and particularly pain
in her right knee from her childhood injury. He also tried to deal with her
symptoms of depression and psychological problems.

[37]        
His notes of August 22, 2007 indicate that she was unable to leave her
house because of her knee problems, and that her mood was not good. He noted in
his own observations that she was despondent. He considered referring her to
the community mental health for a follow up and a referral to Dr. Wiehahn.

[38]        
He saw her again on November 7, 2007. She complained of difficulty
walking and an inability to lift her legs. She also referred to weird movements
in her limbs. He noticed that she had severe swelling of her legs that day.
Again, he noted that she had a depressive disorder.

[39]        
He did not see her again until April 11, 2008. She was reporting
significant problems with regard to her mood and difficulty sleeping. She
stated she was not coping well. She also reported a number of incidents of
falling, and his own observation was that her mood was depressed. He considered
a diagnosis of fibromyalgia and recommended she see a rheumatologist. However,
she failed to follow up on that recommendation. She was complaining of
wide-spread connective tissue pain. He also mentioned stresses in the family.
He confirmed that he had no notes at that time that indicated she was exercising
more or exploring education. These comments, in his report, were based on what
she told him when he was preparing the report. Except for the reference to
being “keen to change,” there was no note indicating that she was engaged or
excited about life.

[40]        
I find that prior to the accident Ms. Carson was suffering from
long-term psychological problems, issues of substance abuse, eating disorders,
and particularly borderline personality disorder. These all had a significant
negative impact upon her life and her psychological condition was aggravated by
various events in her life, including the ongoing pain she was experiencing as
a result of her knee injury, and difficulties with inter-personal
relationships.

[41]        
Ms. Carson was attempting to make some changes in her circumstances,
including dealing with substance abuse issues. However, her problems continued
to be significant and disabling.

MS. CARSON’S POST-ACCIDENT PSYCHOLOGICAL
CONDITION

[42]        
Ms. Carson gave evidence outlining her pre-accident psychological condition
and the effects of this accident on her. Her evidence is essentially that
before the accident her mother was really the only support that she had other
than medical advisors. She said that she had a difficult relationship with her
brother and described it as volatile and hostile. The only relative that she
has any contact with now is a half-sister who lives in Calgary. She has never
met this person face-to-face, but does communicate with her by telephone and
online. She describes having only one friend, a person living in Los Angeles
who she has not seen since 2002. She says they communicate by e-mail.

[43]        
Prior to the accident, she had given notice to leave her apartment. She
was planning to move into her mother’s home. When she was released from the
hospital she went directly to her mother’s home and her mother helped with her
care. However, in the fall of 2008, her mother was diagnosed with early onset
dementia and this made it difficult to assist Ms. Carson. Ms. Carson felt a
significant amount of guilt because her mother was required to help with her
care when she felt that she should be trying to help her mother with her
mother’s problems.

[44]        
Ms. Carson’s evidence was that shortly prior to the accident she was
beginning to walk more, walking from her apartment to her mother’s home for
approximately 15 minutes. She helped her mother with shopping or go to movies
with her mother and helped her mother exercise the dogs.

[45]        
Ms. Carson described the accident itself as a traumatic event for her as
it would be for anybody. She described the pain in her back as being something
greater than she had ever felt before. She was also upset when she was told by
the attending physicians at the hospital that she would have to be placed on
pain medication. She was concerned because she had only been off pain
medication and methadone for a short time. She described the difficulty she had
in the hospital needing help to sit up and being unable to stand. She described
the difficulty she had with the back brace which was prescribed and subsequent
infection of the wound. She said she had some difficulty with her memory around
that time because of the medications that she was on to deal with the pain. She
was afraid of falling or being hurt again. When she was released from hospital
she was on a pain medication patch which was a form of opiate.

[46]        
Physiotherapy was recommended for her at the hospital, but she said she
was in too much pain to go. She said she was in bed 90 percent of the time.

[47]        
She reports that when she was at her mother’s home she had significant
psychological issues as well as pain, which prevented her from attending
physiotherapy or seeking other treatment. Her mother became her primary
caregiver.

[48]        
She gave evidence that she essentially was unable to leave her room or
do much of anything. She does report significant weight gains which caused her
additional concern and pain.

[49]        
She continued to wear a brace, except when in bed, into the fall of
2008. In the month following the accident, she said she was heavily medicated
due to that condition and pain. She had difficulty going to appointments or
going for any sort of a walk. Except for the nurses who attended to dress her
wounds, her mother was responsible for her care.

[50]        
During the summer of 2008, her mother prepared her meals, and helped
with her personal hygiene, including washing her hair. She said she could do
nothing around the home and relied on her mother’s help for everything.

[51]        
She said she was unable to shower or bath for three and a half years
after the accident.

[52]        
She says that in August when she tried to go to Dr. Wiehahn’s office
that it was extremely difficult for her, and that her pain was all consuming.
She said she had constant pain which increased with her weight gain. She
continued to see Dr. Brownlee, the surgeon, for post-surgical care until
approximately November of 2008, when she weaned herself from the brace. She did
see Dr. Wiehahn and Dr. Kruger.

[53]        
Her evidence was that she had trouble dealing with the fact that it was
her mother who was driving the car when she was injured, and suffered
personality changes as a result of the medication she was on.

[54]        
In the fall of 2008, she tried to do more things, but said she could not
help her mother in the way that her mother needed. She had difficulty walking
and had swelling in her legs. She did obtain her driver’s license in November
of 2008 because her mother was no longer able to drive. She had reduced her
medication at that time because she needed to be clear headed in order to
obtain her driver’s license. She said she could take her mother shopping, but
only for 15 or 20 minutes at a time before she had to stop and rest because of
pain. She acknowledged she had back pain before the accident, but not like the
pain she had after the accident. She described pain at the site of the incision
and a shooting pain in her back. She described having difficulty breathing and
having to lie down so that her spine would slip back into place from the top of
her spine all the way down. This could take minutes, hours, or a couple of days
to occur. When it did, it would pop into place knocking the wind out of her.

[55]        
She says that her physical problems following the accident have never
stopped or gone away. In some ways they have improved, but not in others she
said. She says that her pain is significant enough that she is still on
medication; the same dosage she had following the accident. She says that she
has back pain daily but is not more specific than that. She said that it is
aggravated depending on her activities and how extensive they may be, such as
walking. She continues to use a pain patch.

[56]        
Other than pain medication, she has taken no treatments for her pain,
although exercise and physiotherapy have been recommended to her.

[57]        
Dr. Brownlee’s consultation notes indicate that Ms. Carson was doing
well from a surgical prospective as early as September 8, 2008. This was
confirmed in November of 2008. The first reference to shoulder pain was in
November of 2008. Ms. Carson complained of shoulder pain, but Dr. Brownlee, on
examining her, found she had a full range of motion and was actually quite
strong. She complained of balance problems and dropping things, but also noted
her gait appeared quite normal and her sensation and motor power testing was
completely normal.

[58]        
In January of 2009, Dr. Brownlee’s notes indicated that she was looking
better and was much more mobile, although she was still complaining about a lot
of different issues.

[59]        
By January 13, 2009, Dr. Brownlee’s notes indicate that he had told her
that they had done everything they could for her and it was up to her at this
point.

[60]        
In April of 2009, Dr. Brownlee’s notes indicate that she had a long
protracted recovery and a lot of emotional trauma associated with the injury.
However, she had done extremely well from a spinal fracture point of view, and
that most of her ongoing problems were emotional. His concern was that she
should be weaned from her medication and should increase her level of activity.

[61]        
Ms. Carson was diagnosed with a thyroid disorder before the accident and
does take medication for that. Since the accident, she has also been diagnosed
with Type 2 Diabetes and takes medication for that.

[62]        
She has had surgery for her knees and is scheduled for further surgery
in November of 2012. She describes it as nothing serious because she has had
three or four surgeries on her knee already.

[63]        
She acknowledges her pre-accident psychological problems and issues. Her
evidence is that she has had significant problems dealing with the
psychological fall out of the motor vehicle accident which has been aggravated
by family issues due to the accident. She stated that her brother was extremely
hard on her about the accident. She confirms that she has been emotionally
unstable since the accident. She said everything was better shortly before the accident
and she was looking forward to a new start on life, but all that went away
after the accident.

[64]        
She confirmed the prior accident, substance abuse, including medications,
and alcohol. In chief, she said that she had had no alcohol issues for twelve
years. In cross-examination, she did acknowledge that she had abused alcohol
for a short period of time in 2001 or 2002 when she was at BCIT, but said
recently she had not been drinking. However, when asked about Dr. Wiehahn’s
notes, confirmed in September 2011 she had been drinking and had discussed this
with him on two occasions. She also had told him she was drinking four to
twelve ciders a day. She stated she had forgotten about this. She said this was
to deal with problems with sleeping.

[65]        
She gave evidence about post-accident panic and anxiety that prevented
her from going to the grocery store. Initially she experienced panic when she
was out in public, and then even the thought of going out caused her to have an
anxiety attack. Her evidence was that she had stopped eating for long periods
of time, and in fact had not eaten since the beginning of this year. Instead
she was surviving on liquid sugar drinks that were delivered to her home. She
says that she has headaches and is not sure whether they are from the
medication or from the lack of food. She continues to take a number of
medications, including pain medication; a Fentanol patch. She states that a
typical day for her now is being unable to sleep which causes her to stay in
bed most of the time. She says she is in bed the better part of the day and
about all she accomplishes is feeding her cats. She is unable to participate in
any activities, including using her computer. She does not answer the door and
is afraid when the telephone rings. There is no structure and no meal times.
She finds it difficult to go to appointments and does not understand what is
happening to her. She says it is like having a nervous breakdown every night.

[66]        
She basically lives in her bedroom and has not unpacked anything except
the necessities. She has not cooked a meal since she has moved into her
apartment.

[67]        
One of the side effects of her medication is uncontrolled sweating and
feeling sick, including her nose running all the time.

[68]        
She says that she has difficulty with her memory and mood changes.

[69]        
She said she did try to get off her medications in the summer of 2011,
but that proved difficult for her. She said she had managed to stay off for
approximately two months, but relapsed.

[70]        
Prior to the accident, she required dental surgery because of the effect
of the methadone on her teeth and gums. Her evidence is that she was unable to
go to see the dentist after the accident and, subsequently, had all of her
teeth removed and now wears full dentures. The evidence does establish that her
dental problems are related to the motor vehicle accident.

[71]        
She is aware of the doctors’ recommendations for treatment for her,
including a comprehensive medical disciplinary approach which she says she
would pursue. She would pursue counselling by way of a dialectical behaviour
therapy (“DBT”). She says she would also like to become involved in an exercise
program and some home making services would also help her.

[72]        
Ms. Carson complains about the difficult relationship she has with her
brother and her sister-in-law, but does confirm that her sister-in-law did
arrange for somebody from the Insurance Corporation of British Columbia to come
to speak to her. The evidence from her sister-in-law, which I accept, is that
her sister-in-law also made sure she got to a lawyer so that she could get
advice about what actions she should take, including legal action to be
properly compensated for her injuries.

[73]        
Ms. Carson confirms that she still exists on a pension provided to her
as a person with a disability.

[74]        
In cross-examination, Ms. Carson confirmed that the symptoms she
described in her application for a person with disabilities do continue to this
date.

[75]        
She confirmed that she felt safer with her mother, but since her mother
has been in care that safeguard is gone and that has had an impact on her
psychological condition. She confirmed that in the person with a disability
application she stated she was paralyzed from leaving her apartment and was
basically inside 90 percent of the time, and that this situation continued or
was similar to her present condition. She said this was a result of traumatic
events upon her, such as the incident at BCIT or this motor vehicle accident.

[76]        
She confirmed that when she made her 2004 application that she would not
go out for days or weeks. She was asked if that was the same now and she said
it was similar but not the same. She confirmed that she would go for months
without eating food.

[77]        
Her evidence was that she had a falling out with her brother and her
sister-in-law in 2006. She said that she had no real relationship with her
brother from there to February of 2008, and although she may see her
sister-in-law from time to time, it is only in passing; they have no
relationship.

[78]        
Ms. Carson said that she was having difficulty with her memory, but she
was able to give her evidence very well with a good deal of detail about the
medications that she had been on from time to time.

[79]        
Ms. Carson confirmed that she has not asked for help from her medical
caregivers to help her wean herself from the narcotics she is presently taking.
She said she was unable to follow the recommendations made to her by her
doctors for treatment or rehabilitation. She said she was simply unable to
follow the recommendations due to her mental and physical state. She did
confirm she would be willing to and would like to follow up on treatment and
rehabilitation.

[80]        
Ms. Carson confirmed that in September of 2011, Dr. Wiehahn wished her
to go into a residential care facility to deal with her psychological
rehabilitation. She said she discussed it with Dr. Wiehahn, but was unable to
find somebody to take care of her cats so could not follow through.

[81]        
This is consistent with Dr. Wiehahn’s comments that often a person with
borderline personality disorder will sabotage their own care. They will find
some reason why they are unable to follow up with treatment which is
recommended to them. He confirmed that they will also focus on particular
events which are beyond their control as the reason for their inability to
follow up with treatment. This is certainly consistent with the evidence I have
heard about Ms. Carson.

THE LAW

The Plaintiff’s Position

Kosugi v. Krueger (Litigation Guardian of), 2007 BCSC 278

[82]        
In this case, a 39-year old woman who had previously been very active
suffered a disc herniation which required surgery and may require a fusion
surgery in the future. She was found to have chronic low back pain which radiated
into her low buttock and this would be a permanent partial disability for her.
She suffered depression because of the ongoing pain and the limitations from
the injury. Prior to the accident, she was physically active and pursued a
number of interests. Almost any activity now aggravates the pain. She has
difficulty sleeping and suffers from constant fatigue. She is no longer the
happy, carefree person she used to be. The court fixed non-pecuniary damages at
$110,000.00.

[83]        
This case is distinguishable from ours in the sense that Ms. Kosugi’s
pre-accident condition and level of functioning was significantly greater than
Ms. Carson’s. Ms. Kosugi’s problems and disability following the accident were
caused by the accident and not as a result of any prior and ongoing
psychological problems.

Rizzotti v. Doe, 2012 BCSC 1330

[84]        
Ms. Rizzotti was 49 years of age and was involved in three separate
motor vehicle accidents. She was a passenger in two of them, and driving in a
third accident when her vehicle was rear-ended. She was in excellent health
prior to these accidents. The defendant driver in the first accident was
killed, and the grizzly scene at the first accident caused her significant
emotional trauma. She was diagnosed with post-traumatic stress disorder as a result
of this. She also developed significant depressive symptoms as a result of the
accident. She was found to have chronic pain and functional limitations. The
physical injuries were injuries to the left leg, hip and lower back, and the
psychological impacts of the first accident. The court found that the
post-traumatic stress disorder was caused by the first accident. Non-pecuniary
damages were fixed at $110,000.00. The court found the physical injuries were
long-standing and chronic in nature, as well as the serious psychological
injuries. Again, there were no significant pre-accident disabilities.

Caldwell v. Ignas, 2007 BCSC 1816

[85]        
This involved a 36-year old single male. He suffered a fracture to one
and possibly two vertebrae in his upper back and a herniated disc. He also had
soft tissue injuries to his neck and mid-back. He was found to have suffered
chronic pain and that these injuries were permanent. After performing a number
of jobs, he returned to university and was a student at the time of the accident.
One of the complications was that the fractures in his spine were not
identified until two years after the accident. The injury and the ongoing pain
are described as permanent and unlikely to improve. The court found that the
injuries resulted in chronic pain of varying degrees and restrictions in the
capacity to perform a number of specific functions and participate in various
activities, or enjoy a quality of life he had prior to the accident. The court
found this was unlikely to change in the future. The court fixed non-pecuniary
damages at $100,000.00.

[86]        
The physical injuries and ongoing physical symptoms of Mr. Caldwell are
worse than those of Ms. Carson. However, he did not have the same psychological
impacts.

Erickson v. Bowie, 2007 BCSC 1465

[87]        
This involved a 50-year old man who had been a fisherman. He suffered a
fractured sternum and a vertebra in his lumbar spine. Due to his physical
injuries he was unable to return to fishing as a career. The court found that
the injuries had dramatically affected his work life and his recreational
activities. The court fixed the non-pecuniary damages at $80,000.00.

The Defendant’s Position

Stapley v. Hejslet, 2006 BCCA 34

[88]        
This dealt with an appeal from a jury award of $275,000.00 for
non-pecuniary damages. The plaintiff suffered significant permanent injuries,
including headaches, and back and shoulder pain after the accident. He was
required to take a great deal of pain medication to deal with this. It was
unlikely his condition would improve and may well result in a loss of his job
on the ranch he worked at as a mechanic. If so, he would have to move from the
ranch. The court found he suffered negative impacts in all the numerated
factors to be considered in a claim for non-pecuniary damages, including
physical well-being, work, home, relationships and recreation. The court found
an appropriate amount of non-pecuniary damages would normally be $100,000.00,
but reduced the jury reward from $275,000.00 to $175,000.00. The plaintiff in
that case developed headaches, a sore back, and shoulder pain following the
rear-end collision. He had residual complaints of pain in his mid-back, right
side, neck pain, a constant burning between his shoulder blades, a stiff neck
and back, and a constant headache. He was diagnosed with thoracic outlet
syndrome and surgery involved a rib resection to relieve pressure, which
improved his arm pain and numbness by approximately 80 percent. He had taken
part in a large amount of rehabilitation and therapy prior to the trial, and
his ongoing complaints were found to be permanent.

[89]        
The factors the court thought were important in determining an award of
non-pecuniary damages include:

(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;

[90]        
Of significance in this case was the court’s finding that the jury must
have concluded that the plaintiff was likely to lose the lifestyle afforded to
him by reason of his employment at the ranch. The plaintiff was able to
continue to work and participate in recreational activities, and the court
found that ordinarily $100,000.00 would be the upper range for that sort of a
loss. The court found, however, something could be awarded for the potential loss
of a lifestyle and said that should not exceed $75,000.00. Therefore, the court
arrived at the figure of $175,000.00. This was a case of permanent injuries
caused by the accident.

Bartel v. Reid, 2004 BCSC 831

[91]        
The plaintiff, Ms. Bartel, was 19 years of age at the time of the
accident. The plaintiff was injured when she was a passenger in a stolen car.
The car was involved in an accident when the driver was attempting to elude the
police. She was found to be contributorily negligent of her own injuries in the
amount of 25 percent.

[92]        
She suffered a compression fracture of the L-4 vertebra requiring
surgery and internal fixation to stabilize the fracture. Two vertebrae were
fused and two metal rods and screws were placed in her back. The accident
occurred in 1999 and the screws and rods were removed in 2001. By March of
2001, she was able to participate in most of her pre-accident activities. She
occasionally experiences pain if she walks too long. Non-pecuniary damages were
fixed at $40,000.00.

[93]        
Ms. Bartel’s outcome was somewhat similar to the plaintiff’s here with
the exception of the psychological impact.

Jang v. Khera, 2002 BCSC 60

[94]        
The plaintiff was involved in two motor vehicles, and in the first
suffered a transverse fracture through T12-L1 disc space which affected the
alignment of the spine, as well as psychological problems. He had a
pre-existing spine condition that impacted upon mobility and function. The
injuries caused difficulty in lifting heavy objects, poor balance, poor
concentration, and affected his work as an artist. Non-pecuniary damages were
fixed at $25,000.00.

[95]        
The treatment for the spinal injury was immobility and bed rest for
several weeks, followed by a brace. The plaintiff had pain in the mid-back
associated with certain activities. The plaintiff did become frustrated and
depressed as a result of the effects of his injuries and the physical
limitations. Non-pecuniary damages were ultimately set at $50,000.00.

[96]        
Mr. Jang’s physical injuries were somewhat similar to Ms. Carson’s, but
the psychological impacts were significantly less.

Uyeyama (Guardian ad litem of) v. Wittenberg, [1984] B.C.J. No. 346

[97]        
The decision I have been referred to, however, deals with the damage
assessment for injuries suffered by Ms. Charlton, who received a serious back
injury. She was just under 18 at the time of the accident and had a difficult
and eventful life up to that point. She had health and behavioural problems
before the accident.

[98]        
Her injuries included severe bruising as a result of the seatbelt,
tenderness of the cervical spine, abrasions on the sternum, an undisplaced
fracture of the right clavicle and a compression fracture of the L-4 and L-5
vertebrae. A large bony fragment extruded from the posterior aspect of the L-5
into the spinal canal. The fragment was removed and the vertebra fused. She was
in a striker frame for two weeks and had a body cast applied. The accident was
February 24, 1981, and she was released from hospital late April or early May
1981. The body cast remained on until July 1981, and she wore a back brace for
a further two months. She underwent physiotherapy five days a week for four
weeks, a nerve blocking procedure, and had to have a myelogram, which was a
particularly painful procedure.

[99]        
She continued to experience severe pain in the lumbar area of her back
and had a second major operation which involved the fusing of L-3 to L-4 and to
refusing L-4 and L-5, and a fusing of L-5 to the sacrum. Rods were also
inserted to stabilize the infusion. She was placed in a body cast again for three
and a half months. The surgery left a large number of scars.

[100]     The
plaintiff was described as having a low pain threshold and required a
substantial number of analgesics to deal with the pain. She became dependent
upon the drugs and it was recommended she attend a detox vocation centre, but
she failed to do so. At the trial, she expressed a willingness to attend such a
detox vocation centre after she underwent some planned surgery.

[101]     Prior the
accident, the plaintiff had been physically active and the back injuries caused
problems with her legs which are probably permanent, but not debilitating.
Non-pecuniary damages were fixed in the amount of $48,000.00. That decision,
however, is from 1984.

Wilson v. Ham, 2004 BCSC 842

[102]     This
involves a 1998 motor vehicle accident. The plaintiff was approximately 45
years of age at the time of the accident. She suffered a compression fracture
of the lateral tibial plateau and the left knee. Prior to the accident she was
in good health. She developed abnormal pain in the knee referred to as reflex
sympathetic dystrophy, although the fracture was well healed. Sympathetic
dystrophy was described as an abnormal pain response. There was a significant
amount of emotional and psychological complications. She was described in one
of the reports as having significant pre-existing personality and psychological
issues that greatly influenced her response to the accident.

[103]     She saw a
psychologist who reviewed her records and concluded she suffered a pain disorder
associated with psychological factors and general medical condition, and a
major depressive disorder of mild to moderate severity. She also had a
generalized anxiety disorder and features of post-traumatic stress disorder,
although not meeting the full diagnostic criteria. The psychological factors
played an important role in the pain, and the pain caused significant distress.
The psychological factors were not found to have an important role in the onset
of her pain.

[104]     She was
described as having considerable physical and psychological vulnerability
before the accident, and was affected by other events in her life such as the
death of her husband and being found to be unemployable prior to the accident.

[105]    
The court had to deal with the issue of the extent to which the
plaintiff’s post-accident condition was attributable for legal purposes to the
accident. The court found that the post-accident symptoms and continuing present
condition were far disproportionate to the physical severity of the injury. The
court found the physical injuries had resolved, but the plaintiff’s chronic
pain disorder was focussed on the original injury:

[24] To the extent that that Pain Disorder is a
psychological phenomenon and due to the plaintiff’s preaccident psychological vulnerability
it is said that the case is simply one of the thin skull principle in
operation. In particular the case of Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d)
318 (B.C.C.A.) is pointed to. The head note which correctly expresses the
judgment of Rowles J.A. says:

It is a long-standing principle in
tort law that if the wrong is established, the wrongdoer must take the victim
as he or she finds them. Under that principle, there is no difference between
an egg shell skull and an egg shell personality.

[25] However, it seems to me the question of causation
presents particular problems for the plaintiff. In Athey (supra), the court
said at page 102:

The general, but not conclusive,
test for causation is the "but for" test, which requires the
plaintiff to show that the injury would not have occurred but for the
negligence of the defendant: Horsley v. MacLaren, [1972] S.C.R. 441.

The "but for" test is
unworkable in some circumstances, so the courts have recognized that
causation is established where the defendant’s negligence "materially
contributed" to the occurrence of the injury: Myers v. Peel County Board
of Education; [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956]
1 All E.R. 615 (H.L.); McGhee v. National Coal Board, [1972] 3 All E.R. 1008. A
contributing factor is material if it falls outside the de minimis range:
Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30
B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

[26] A consideration of Dr. Joy’s and Dr. McCormack’s
evidence in particular can lead only to the conclusion that after all this time
the plaintiff’s present disabilities including the pain she experiences are
psychological in origin. In Yoshikawa (supra), Lambert J.A. said the following
at pages 330 and 331:

It seems to me that there are two
different types of psychological symptoms that may be covered by the principles
that are here being discussed. There are those where the psychological symptoms
have their origin entirely in the defendant’s wrongful act. Clearly they are
compensable. And there are those psychological symptoms where the defendant’s
wrongful act triggers a pre-existing psychological condition so that both the
defendant’s wrongful act and the pre-existing condition are causes-in-fact of
the psychological injury. In the latter cases the psychological injury will be
compensable on the basis of a pre-existing thin skull, except only in cases
where the psychological problem is so dominant as a pre-existing condition and
the injuries sustained in the accident are so trivial that the accident can no
longer be said to be a sufficient cause in law to support an award of damages
on the basis of proximate cause.

[106]    
In that case, the court found that the pre-existing psychological
problem was so dominant as a pre-existing condition and the injuries sustained
in the accident so trivial that the accident could no longer be said to be a
sufficient cause in law to support an award of damages on the basis of proximate
cause:

[28] It is true that Lambert J.A. also said that in
his view the above will not be the case unless the plaintiff’s psychological
symptoms would have eventually appeared even absent the defendant’s tortious
act by reason of the plaintiff focusing or fixating on some other event.
Obviously to come to that conclusion involves crystal ball gazing to a certain
extent. However, I do think it is a fair inference in this case given the
plaintiff’s psychological make-up.

[29] In any event, I think that the conclusion of
absence of causation can be put on the basis of the distinction in Lambert
J.A.’s judgment between "cause-in-fact" based on "but for"
reasoning, and "proximate cause" as a legal question. That is, even
though a "but for" line of reasoning shows a chain of events from the
defendant’s tortious act to the plaintiff’s present complaints, if by the
measure of the ordinary conduct of human affairs it is wholly unreasonable to
say that the one is connected to the other, then it should be said that for legal
purposes, the former did not "cause" the latter. The court simply has
to step in at some point and say "that is far enough". Perhaps it is
difficult to articulate a universally applicable general principle implementing
that process. But courts operate in the realm of the concrete and it seems to
me that fairness dictates that they must have that power.

[30] In my view, in this case the court should not
hold the defendant liable in law for symptoms which are so far disportionate in
severity and so unrelated to the original injury caused by the defendant’s
tortious act that any reasonable person would say that they were not caused by
that act but rather by factors personal to the plaintiff.

[31] The evidence of the
plaintiff’s physical injuries has been set out above. The symptoms of her
reflex sympathetic dystrophy, which were not severe, had resolved by the time
she left Dr. Curry’s practice in 2001. The injuries undoubtedly exacerbated her
symptoms of depression and anxiety and were obviously a factor in the genesis
of her pain disorder. However, my conclusion is that the results of the
accident are no longer a factor in that regard and have not been since at least
some time in 2001.

[107]     Ultimately,
non-pecuniary damages were set at $50,000.00 in 2004.

[108]     The plaintiff
argues that the appropriate amount for non-pecuniary damages would be
$100,000.00 to $120,000.00, arguing that although physically healed, continues
to suffer significant pain and significant aggravation of her psychological
condition. The plaintiff also argues that this amount would reflect the fact
that the plaintiff again became dependent upon narcotic pain medication as a
result of receiving medication while being treated for surgery.

[109]     The
defendant argues that an appropriate amount would be $70,000.00 to $75,000.00
for the non-pecuniary portion of the claim. The defendant acknowledges the
physical injuries to the back the plaintiff complains of and that she did
suffer pain. The defendant, however, argues that any ongoing complaints,
particularly at this time, are not caused by the accident, but rather caused by
the plaintiff’s psychological condition.

[110]    
In Warner v. Cousins, 2012 BCSC 1737, Madam Justice Hyslop
writes:

[201] The most convenient manner in which to address the
plaintiff’s claim for damages for loss of amenities, pain, suffering, and loss
of enjoyment of life, is to consider those factors set out in Stapley v.
Hejslet, 2006 BCCA 34 and summarized by Madam Justice Felon in Fell v.
Morton, 2012 BCSC 428:

[30]      An award of non-pecuniary damages compensates a
plaintiff for loss of amenities, pain, suffering, and loss of enjoyment of
life. In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court of
Appeal outlined the factors a trial judge should consider when assessing such
damages:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and
mental abilities;

(i)         loss of lifestyle; and

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

[111]     I find
that Ms. Carson had essentially recovered from her physical injuries within a
year of the accident. I accept that she continued to have some pain for at
least another year and still occasionally suffers pain from the injury.
However, from a physical point of view she has made an excellent recovery. I am
not satisfied that the shoulder complaints relate to the accident or were
caused by the accident. In November of 2008, when she began to notice shoulder
pain, the doctor’s evidence indicates that she had a full range of motion and
was quite strong.

[112]     I do find
that her pre-existing psychological or borderline personality disorder was a
factor in the impact this accident had on her. These injuries and the
circumstances of the accident had a greater impact on Ms. Carson than they
would on somebody without her pre-existing psychological problems.

[113]     I also
find that the necessity for narcotic medication to deal with the pain
immediately after the accident and for at least a short time after also
complicated and delayed Ms. Carson’s efforts to free herself from her prior
addiction and abuse of pain medication. I find that the psychological impact of
this accident also complicated her efforts to free herself from the pain
medication and made it more difficult for her to do so.

[114]     However,
the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied
her ongoing problems, both psychological and physical, are as a result of her
prior psychological problems. Given her complicated psychological history, I
find that the accident has become the focus of and not the cause of her
complaints. It is difficult to be precise about when the accident was no longer
a significant contributing cause to her complaints. However, I am satisfied
that within two to three years of the accident, and certainly by the time of
the trial, the accident was no longer a significant contributing cause. Similar
to the case of Wilson and the cases cited in that decision that I have
referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing
condition was so dominant in her life and, based on the evidence I have heard,
would have continued to dominate her life whether this accident occurred or
not. Essentially she appears to be back to her pre-accident condition and it
cannot be said that the accident is the cause of her present condition.

[115]     In
considering all of the above, I find that the appropriate damage award for
non-pecuniary damages is $90,000.00.

PAST AND FUTURE INCOME LOSS

[116]     The
plaintiff acknowledges the onus is on her to prove a real and substantial possibility
that she will suffer a loss of earning capacity. Given the fact that she is 39
years of age and has some work history, the plaintiff argues that the
defendant’s psychiatrist is overly pessimistic when he concluded it is unlikely
she would ever work.

[117]     The
plaintiff does argue that she has worked in the past, and despite leaving home
and school at approximately the age of 15, that she did enter the workforce.
She did obtain a grade 12 equivalency and has taken some courses at
post-secondary institutions. She was involved in some employment up until the
time she was approximately 28 years of age in 2001. In addition, she did work
for a short period of time in her brother’s chiropractic office and for another
chiropractor performing receptionist to clerical duties. She may also have done
some work with regard to their computer systems.

[118]     The
plaintiff’s evidence is that just before the accident she was considering
studying the law school admissions test because she thought she might be
interested in criminology and the law. I am not satisfied with her background
that was a realistic option for her at the time. She is intelligent, but her
work and education history and her pre-existing psychological problems simply
make it extremely unlikely that she would have been able to complete the number
of years of formal education that would be required simply to be admitted to
law school, as well as the stresses at law school itself.

[119]     It is
possible that she could have taken some short-term upgrading with regard to her
computer skills, and might have found some work on a part-time or intermittent
basis working with computers.

[120]     One of the
documents referred to in support of her claim for a loss of earning capacity
was a resumé which she prepared in the past. The resumé looks positive on first
glance, but on cross-examination it is obvious that it is not a completely
accurate picture of Ms. Carson’s education or work history.

[121]     Her career
overview states that she has systems and software professional experience in
internal and external fast-paced environments that demand strong
organizational, technical and inter-personal skills. That is certainly an
exaggeration. Most of her computer training is from self-guided teaching. She
did work for approximately eight or nine months in 1999 in England in what she
described as a technical support engineer in her resumé, but which in fact was
a computer technician. She was able to take some training during that time, but
I am satisfied her description of her training and her work experience is as
exaggerated as her career overview.

[122]     The
various job descriptions that she gives again appear to be exaggerations of
what her accomplishments and duties actually were. She did work for almost a
year for a company providing temporary staff to provincial government agencies.
Again, a description of her duties during that time is somewhat inflated.

[123]     I am
satisfied that before the accident Ms. Carson was hopeful of overcoming some of
her psychological problems and was taking steps to deal with the difficulty she
had with pain medications and methadone. It is possible she would have suffered
some set-backs, but certainly before the accident she was committed to trying
to overcome the problems she was facing. It is certainly possible she would
have been able to do so at least for a time, and perhaps upgraded her computer
skills and obtained some part-time employment. The motor vehicle accident and
her injuries and treatment certainly delayed that progress and the
reintroduction of narcotic pain medications has complicated her recovery. I am
not satisfied that any residual pain she may have from the motor vehicle
accident would significantly contribute to any future loss of income. I am also
satisfied that the psychological impacts of the accident have been overridden,
or are no longer a factor, affecting her ability to work.

[124]     During the
time Ms. Carson did work, particularly computer work, she earned very little
money. Often it was simply for friends or acquaintances. Sometimes the computer
work she did was simply ancillary to other duties, such as receptionist or
clerical work. With no real earning record other than her references to hourly
salaries she may have received at jobs she held ten years ago, it is difficult
to assess the amount of money that would compensate her for the effects of the
motor vehicle accident on her past income loss. However, doing the best I can
with the limited evidence I have, and keeping in mind the onus is on the
plaintiff to prove this loss, I fix the amount at $5,000.00. I am satisfied
this is reasonable for the delay that the motor vehicle accident and its impact
may have had on her for approximately two to three years in pursuing her
employment.

COST OF FUTURE CARE

[125]     Ms. Carson
argues that the medical evidence confirms that she needs significant treatment,
including a multi disciplinary approach to treatment and a dialectical
behaviour program. The plaintiff estimated the cost of these based on their experts’
reports of $18,000.00 to $38,000.00. Dr. Janke said that in his experience,
probably $15,000.00 to $20,000.00 would cover that kind of treatment.

[126]     The
plaintiff had been reluctant to participate in similar programs in the past,
although she said that she would do so now. The defendant argues that it is
unlikely that she would participate and also argues that this type of treatment
would have been necessary even without the accident. The plaintiff argues that
the motor vehicle accident was a significant or material contributing cause to
her need for this very extensive course of treatment.

[127]     I agree
that the motor vehicle accident has become the focus of Ms. Carson’s
psychological complaints, but I am not satisfied that it is the cause, and
continues to be a material contributing cause to her condition.

[128]     I find her
past condition was a chronic fluctuating one and that it was impacted by
various environmental incidences such as the motor vehicle accident and her
mother’s dementia.

[129]     Ms. Carson
was in need of this sort of treatment even before the accident. Her present
need is a result of her prior psychological condition and not the accident. The
evidence does not satisfy me that as a result of the accident, she requires any
homemaking care or any dental care.

[130]     She could
use some counselling and support in dealing with her ongoing dependency on pain
medication. The narcotic pain medication was given to her as a result of the
accident and following her efforts to end the reliance on narcotics in the two
months before the accident. Based on the hourly rates referred to in the report
of the occupational therapist filed by the plaintiff, the cost of social worker
services and case management services could be about $135.00 per hour. She may
need the services of somebody more qualified, such as a psychiatrist. There is
some evidence that the hourly rate for a psychiatrist would be approximately
$175.00. Ms. Carson could also use some assistance for a short time with
becoming more physically fit. She has clearly become deconditioned as a result
of no activity during the first two or three years after the accident. She may
have found herself in that condition in any event, but the accident was a
material contributing cause to that. She has not participated in physiotherapy
or physical conditioning in the past, but states that she is prepared to attempt
to do so now. It is uncertain whether she will be able to follow through.

[131]     Ms. Carson
could use the assistance of a counsellor or personal trainer to help her begin
a program of physical rehabilitation. I do not agree that the plan should be as
extensive as that outlined by the occupational therapist. I find in total the
cost of counselling for assisting her with the dependence on pain medications
and physical rehabilitation can be met by an award in the amount of $10,000.00.

SUMMARY

[132]     Therefore,
I have awarded the following:

[133]      I am not
aware of any deductions that need to be taken from this amount, or any special
expenses the parties may have agreed upon.

[134]     Barring
any circumstances that I am unaware of at this time, the plaintiff will have
her costs at Scale B.

“R.E. Powers J.”

POWERS J.