IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121207

Docket: M100248

Registry:
Vancouver

Between:

Mona Kwong

Plaintiff

And

Brian Thomas
Leonard

Defendant

Before:
The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
This action arises out of a motor vehicle accident (the “MVA”). 
Liability is in dispute.

[2]            
The plaintiff claims damages for:

1.       non-pecuniary damages;

2.       past loss of income/past loss of capacity;

3.       future income loss/future loss of earning
capacity;

4.       cost of future care; and

5.       special
damages.

LIABILITY

[3]            
The MVA occurred at approximately at 7:30 p.m. on February 2, 2008.  It
was a dark Saturday evening.

[4]            
At the time, the plaintiff was driving westbound on Smithe Street in the
City of Vancouver between Homer Street and Richards Street.  At that point,
Smithe was a four-lane one-way road.  The most northerly curb lane (lane #1)
had parked vehicles in it.  The other three lanes had through traffic westbound
approaching Richards.  At the time of the MVA, the plaintiff was in the
southernmost curb lane, (lane #4).

[5]            
Traffic is generally busy on Smithe Street.  Both parties agreed that
traffic was particularly heavy that Saturday evening.

[6]            
The point of the MVA was in lane #4 at approximately the halfway point
between Homer and Richards.  Although there was no evidence of the distance
between Homer and Richards, I infer that the point was approximately halfway
because it was at the point where the alleyway between Homer and Richards
(which runs parallel to those two streets) intersects Smithe Street.

[7]            
The reason the MVA occurred at that point was because the defendant had
chosen to cross all four lanes of Smithe Street, exiting the alley on one side
with the intention of re-entering it on the other.

[8]            
More specifically, he had exited the alley from the north of Smithe
Street, travelling in a southerly direction, had crossed lane #1, then slowly crossed
lanes #2 and #3, intending to cross lane #4 into the alleyway on the other side
of Smithe Street.  The MVA occurred when he entered lane #4.

[9]            
His goal in doing this was to pick up a friend in the alley entrance to
his friend’s apartment building to the south of Smithe Street.

[10]        
There were numerous other less hazardous routes by which he might have
accomplished that goal, and he knew that to be the case, having picked up his
friend several times before.  In that regard, I infer from all of the evidence
that the defendant had not expected the traffic on Smithe Street to be as heavy
as it was.

[11]        
Even so, he knew the traffic downtown was heavy.  He described it as “gridlock”. 
He also said he had decided to take this particular route in order to avoid the
heavy traffic.  He certainly knew how heavy it was as he entered the parking
lane of Smithe Street from the alley.  Even then, a less hazardous route
(although more time consuming) was clearly available to him − he could
have turned right onto Smithe Street instead of continuing his attempt to
cross.

[12]        
The defendant impressed me as a thoughtful, credible, reasonable and generally
careful man − all the more difficult to understand why he pursued this
route which was fraught with risk and danger.

[13]        
It is important to note at this point that the plaintiff also impressed
me as a thoughtful, credible, reasonable and generally careful woman.

[14]        
The defendant was negligent in what he attempted to do.  Nevertheless, I
am satisfied that he attempted to be careful, evidenced by the fact that he
moved slowly and successfully across three of the four lanes.

[15]        
As he waited to enter the fourth lane, his view of traffic coming from
his left (the direction from which the plaintiff was coming) was blocked by a
truck stopped in the third lane immediately to his left.  He did not see the
plaintiff before he entered the lane.  He did not see her before the MVA.  He
entered the lane slowly and carefully, but entered nevertheless, and the MVA
occurred.  I am satisfied that the point of impact of the two vehicles was
likely the defendant’s left front corner with the plaintiff’s right front
corner.  I am satisfied that the defendant’s vehicle was probably between one
and two feet into the lane.  At the time of the MVA, I am satisfied that the
defendant was moving slowly.

[16]        
I am also satisfied that, at the time of the MVA, the plaintiff was
travelling at 40 to 45 kilometres per hour.  This speed was reasonable in the
circumstances.  She was intending to turn left on Richards.  She does not
recall noticing anything in particular about traffic before the MVA, other than
that it was heavy.

[17]        
The defendant acknowledges that he was negligent but argues that the
plaintiff was contributorily negligent.  First, she was travelling too fast in
the circumstances.  Second, since the view to his left was blocked by a truck, it
means that her view to her right must have been blocked by the same truck. 
This created an obligation on her to exercise caution and slow down −
what if the truck had been stopped for a jaywalking pedestrian?

[18]        
There was a traffic light at Smithe and Richards, where the plaintiff
was intending to turn left.  The defendant said that the traffic was stopped
for the light and this created an opening through which he had safely navigated
the first three lanes.  He agreed that the traffic in the fourth lane was not
backed up all the way to the opening he described.

[19]        
The driver of the truck was called as a witness.  He was refreshingly
candid in his admission of his inability to recall anything of value.  The MVA
was over four years before the trial.  Refreshing his memory from the statement
that he provided to ICBC (although it was not completely clear to what extent he
recalled even that) did little to help him recall.  His evidence does not
assist me at all.

[20]        
The defendant argues that:

1.       He proceeded with reasonable caution when
entering on to Smithe Street, his vehicle did not constitute an immediate
hazard, and he therefore did not breach s. 176(2) of the Motor Vehicle Act,
R.S.B.C. 1996, c. 318, which requires that a driver crossing a highway from an
alley “must yield the right of way to traffic approaching on the highway so
closely that it constitutes an immediate hazard.”

2.       He kept a proper lookout when crossing into
each of the lanes, and reasonably concluded that no immediate hazard was posed
by oncoming traffic.

3.       Even acknowledging that he was the servient
driver, all drivers including the plaintiff, have a common law duty of care to
avoid a MVA which can reasonably be foreseen and avoided.

4.       All drivers are required to keep a proper
lookout and drive with due care and attention when operating a motor vehicle. 
The plaintiff failed to do this.

5.       The parked truck should have made it clear to
the plaintiff that a possibility of danger emerging was reasonably apparent. 
This created an obligation for her to take precautions.  Failing to do so is
negligence.

6.       In the circumstances, the plaintiff had a
duty to slow down and look.  Failing to do so is negligence.

7.       The
plaintiff was driving in an excessive speed, considering that she was passing a
stopped vehicle.  Even a dominant driver must bear some responsibility for an MVA
which is caused by her excessive speed.

[21]        
The defendant argues that the plaintiff should bear 40 percent
responsibility for the accident.

[22]        
I am satisfied that the plaintiff must bear a degree of responsibility
for the accident.  However, that degree is small.  The plaintiff was the
dominant driver.  The defendant had undertaken a route filled with risk and
danger to himself, and to others.  The responsibility for that risk falls
almost exclusively upon him.  He should not have entered the plaintiff’s lane
of travel without ensuring that it was safe to do so.

[23]        
In the circumstances, one could easily argue that the plaintiff’s
responsibility is zero; to rule otherwise would essentially require all cars
travelling down a main road to slow down at every alleyway where there is heavy
traffic and other traffic in the adjacent lanes.  The law does not require
that.

[24]        
In all the circumstances, I find the defendant responsible for 95
percent of the accident; the plaintiff 5 percent.

INJURIES

Pre-MVA

[25]        
The plaintiff gave evidence.  She gave evidence about her injuries, her
attempts to deal with them, the effects they have had on her life and on her prospects
for her future.  She is an extremely accomplished and impressive woman.  I
believed her evidence.

[26]        
She was born on January 12, 1974; she is 38 years of age. She is single
and lives in Downtown Vancouver, and did so in 2008.

[27]        
Prior to the MVA, she did not have any musculoskeletal complaints.

[28]        
She did have several unrelated medical issues:

1.       She had a prior history of migraines that
occurred approximately every three months prior to the MVA, since high school.
Her evidence was that these headaches were caused by the weather, and caused
her nausea, as well as sensitivity to light and sound.

2.       She
had also been diagnosed with Polycystic Ovarian Syndrome (“PCOS”), and
hypertension.

[29]        
She had been advised that it was necessary, in order to control her PCOS
and hypertension, to be physically active, perform cardiovascular exercise, and
control her weight.  Toward that end, she was actively involved in going to the
gym, hiking, biking, dancing, swimming, doing yoga, and participating in Kung
Fu.

Post-MVA

[30]        
Since the MVA, many of the steps that the plaintiff had taken before to
tone her body, and to remain active to control her hypertension and PCOS, have
become much more difficult.  The pain she has experienced has interfered with
her ability to continue with those activities.

[31]        
She has not been able to participate in many of her pre-MVA activities
including going to the gym, hiking, biking, dancing, swimming, doing yoga and
Kung Fu.  She has tried returning to Kung Fu a few times, but she stopped
because the movements aggravated her symptoms.

[32]        
She has developed pain, most prominently in her neck, right shoulder,
and upper back, as well as numbness and tingling in her right arm, wrist, hand,
and 4th and 5th fingers, poor sleep and fatigue.

[33]        
She testified that, at times, she cannot move her neck in a certain way.
She also has headaches and numbness in her ring and pinkie fingers.

[34]        
The numbness and tingling in her right arm and hand that causes her some
ongoing distress is exacerbated by holding her arms out before her for an
extended period, or reaching over her head.

[35]        
The tightness and neck pain sometimes causes headaches that cause her
distress. These are a different type of headache than her pre-MVA headaches
which appear to have resolved.

[36]        
It has been 4½ years since the MVA. Her condition has plateaued and has
not been improving.  Her symptoms wax and wane; some days are better than
others.

[37]        
She testified that her symptoms have also caused her to lose enjoyment
from her work.

[38]        
The plaintiff’s brother, Vincent Kwong, gave evidence.  He testified
that he lived in a two bedroom condominium with the plaintiff from December
2003 until June 2010. His evidence was that, before the MVA, she was more
exuberant and chipper, whereas since the MVA, she has been more withdrawn and
has had to rest and sleep more. After the MVA, he noticed that she would wake
up during the night.  After the MVA, Mr. Kwong and Evan, another brother,
hauled large books for her, whereas before the MVA, the plaintiff’s ability to
lift things gave them reason to call her "the Incredible Hulk".

[39]        
Mr. Kwong also noted that after the MVA, he took on more responsibility
for the household chores.  The plaintiff was unable or less able to vacuum,
clean the curtains at their apartment, and clean the floor-to-ceiling windows. 
He testified that, while living there, he performed these tasks once every few
months, and it took approximately a morning to do so.

[40]        
Her lesser ability to perform certain housekeeping chores was supported
by Mr. Pakulak in his Functional Capacity Evaluation Report.

[41]        
The plaintiff makes no specific claim for damages for loss of
housekeeping capacity, but argues that this loss should be considered as a
factor in assessing non-pecuniary damages.

Professionals

[42]        
On the recommendation of Dr. Murphy, her family physician, the plaintiff
started physiotherapy shortly after the MVA. Dr. Murphy referred her to Dr.
Heather Finlayson, a Physical Medicine and Rehabilitation specialist. Dr.
Murphy defers to Dr. Finlayson’s expertise with respect to the latter’s
diagnosis and treatment of the plaintiff.

Dr. Finlayson

[43]        
Dr. Finlayson initially saw the plaintiff in July 2008.  Since then, she
has examined her on seven occasions (from July 8, 2008 to February 16, 2012) and
has diagnosed and treated her specifically for thoracic outlet syndrome (TOS), chronic
myofascial pain, cervicogenic headaches, and poor sleep, all of which Dr. Finlayson
attributes to the MVA.

[44]        
Dr. Finlayson went on maternity leave in early 2012, and that is when
her colleague, Dr. Simonett, started to treat the plaintiff.  Dr. Finlayson
agreed during her cross-examination that she had not reviewed the records of
Dr. Simonett, who had seen the patient on a number of occasions for follow-up.

[45]        
The defendant offered no expert medical evidence.

[46]        
Dr. Finlayson testified that the plaintiff’s pre-accident headaches were
different from the post-accident headaches.  This is consistent with the
plaintiff’s evidence that her post-accident headaches seem to be different than
her pre-accident headaches, and that the latter appear to have resolved since
the MVA.

[47]        
On April 21, 2009. Dr. Finlayson noted that her clinical impression was
that the bulk of the plaintiff’s symptoms were related to her myofascial pain
syndrome and the TOS was less prominent.

[48]        
On October 21, 2010, she noted that her clinical impression was that the
plaintiff continued to have symptoms of myofascial pain, and also an element of
mild TOS which was much less prominent.

[49]        
On December 15, 2011, Dr. Finlayson noted that the plaintiff had symptoms
consistent with TOS, although her main source of pain was more likely the myofascial
pain.

[50]        
Dr. Finlayson’s medical evidence supports a determination that the plaintiff
suffers from myofascial pain syndrome, and has ongoing complaints related to
pain in her right neck and upper back.

Mr.
Pakulak

[51]        
On April 24, 2012, the plaintiff was functionally assessed by Paul
Pakulak, an occupational therapist and certified functional capacity evaluator. 
During testing, Mr. Pakulak had the plaintiff simulate her job duties as a
pharmacist and found that she had physical limitations that require
accommodation.  The plaintiff gave a good effort during the testing and the
results were reliable. Her post-test ingrain levels showed an increase in her
neck and upper back pain, tingling in her right hand, and she developed a
headache. The functional pain scale (attached to the report), show that the
symptoms in her neck, upper back, and right hand were disabling after testing.

Treatment

[52]        
The plaintiff has attended numerous physiotherapy and personal training
sessions.  She continues to attempt to do so, although her ability to pay for
the sessions limits those attempts.

[53]        
Since January 2012, the plaintiff has had at least five invasive
lidocaine injections for her neck and upper back that have only resulted in
temporary relief. After a short period of time, the pain and numbness has
returned. The plaintiff is apprehensive about needles, especially after she
fainted once after the MVA when her physiotherapist gave her an injection for
intra-muscular stimulation.

[54]        
Since the MVA, the plaintiff has taken various medications in an effort
to manage her pain, while she has to be careful that the side effects of
medication do not affect her judgment while she is working as a pharmacist.

[55]        
She is willing to try Botox injections when she finishes with the
trigger point injections.  Dr Finlayson testified that less than half of
patients feel benefits from Botox injections and those who do typically report
a 50% reduction in pain, and so it is highly unlikely that Botox will eliminate
the plaintiff’s pain or cure her.

[56]        
Both Drs. Finlayson and Murphy consider the plaintiff to be a compliant patient
who has followed their advice.

[57]        
The plaintiff argues that numerous sessions of physiotherapy and
personal training that she has paid out of her own pocket, combined with the
invasive injections that she is enduring, speaks volumes about her commitment
to get better and the degree of pain she has been experiencing as a result of
her injuries.

FAILURE TO MITIGATE

[58]        
The defendant argues that the plaintiff failed to mitigate her damages.

[59]        
He argues that she has demonstrated an unwillingness to try alternative
treatments suggested by doctors because she personally did not consider them appropriate,
including:

1.       not taking certain medications for headaches
described by Dr. Murphy in April of 2006;

2.       being resistant to Tramacet, suggested by Dr.
Finlayson in July of 2008;

3.       being resistant to Lyrica, suggested by Dr.
Chapman and discussed with the plaintiff by Dr. Finlayson in April of 2009;

4.       resisting the concept of Botox injections;
and

5.       being
resistant to Baclofen to control muscle spasms.

[60]        
I reject this defence argument.  The medical evidence suggests that the
plaintiff was compliant with her doctor’s recommendations.  What the defendant
argues was resistance to her doctor’s suggestions is not properly characterized
as resistance.  All the doctors had respect for the plaintiff’s concerns about their
various recommendations, and considered her concerns to be reasonable in her
personal circumstances.  None of the doctors suggested that she was
unreasonable for what the defendant says was a failure to accept some of their
recommendations.

[61]        
I am satisfied that the plaintiff has not failed to mitigate her
damages.

NON-PECUNIARY
DAMAGES

[62]        
The defendant argues orally that non-pecuniary damages should be awarded
in an amount no greater than $50,000, and relies upon the following cases with
similar facts, which awarded a similar amount:

Gordon v. Timins, 2009 BCSC 1082

Mowat v. Orza, 2003 BCSC 373

Langley v. Heppner, 2011 BCSC 179

[63]        
The plaintiff argues that non-pecuniary damages should be awarded in the
amount of $100,000, and relies upon the following cases, with similar facts,
which awarded a similar amount:

Cimino v. Kwit, 2009 BCSC 912

Kardum v. Asadi-Moghadam, 2011
BCSC 1566

Kaleta v. MacDougall, 2011 BCSC
1259

Olson v. Ironside, 2012 BCSC 546

[64]        
In view of all the foregoing, I am satisfied that non-pecuniary damages
are properly assessed at $75,000.

PAST WAGE LOSS/PAST LOSS OF
CAPACITY

[65]        
The plaintiff had various sources of income at the time of the MVA, all
of which had variables which make the task of determining her past wage loss
something more than simple mathematical calculation.

[66]        
Her sources of income included:

1.       her employment as a pharmacist;

2.       her employment with UBC;

3.       her work with Dr. Kassam; and

4.       her work as a consultant (including attending at
injection sites).

[67]        
At the time of the MVA, she worked 60 hours per week as a pharmacy manager
at the Howe Street Pharmacy (the “Pharmacy”) and as a lecturer, coordinator,
and researcher at UBC. She has worked at the Pharmacy since 2002 and worked at
UBC from 2005 until February 2011. She has also been doing consulting work.
Whether she was working at the Pharmacy or UBC, her employers and colleagues
hold her in high regard for the way she treats her co-workers, the high
standard of care she provides for her patients, and her unique background and
knowledge as a pharmacist.

The Plaintiff’s Submission

[68]        
The following are the plaintiff’s taxable earnings from 2006 through
2011:

[69]        
It is apparent that the plaintiff’s income basically remained stagnant
from 2006 to 2011.  She argues that, were it not for the accident, her income
would have risen to at least $95,000 by 2012.  She asks the court to come to
the same conclusion based upon the following evidence:

1.       At the Pharmacy, her per hour income increased,
which would ordinarily have resulted in an increase in her overall income. 
However, it failed to have that result because her injuries required her to
work less hours.

2.       She and her research supervisor at UBC were
actively pursuing grants and other funding, which could well have seen her
being paid for the many evening and weekend hours she would have put into the
research.

3.       She
had to turn down opportunities to participate in injection clinics, as part of
her consulting work, for which she would have been paid.

[70]        
The plaintiff argues that, in view of the foregoing, her income would
likely have increased to $95,000 by 2012.

[71]        
Dr. Finlayson validates the plaintiff’s need to reduce her hours of
work.  In her medical/legal report, she states the following:

Her work has been affected as she has had pain when using her
arm to dispense medications, type and write with a pen when taking a statistics
course. She has had discomfort when sitting for prolonged periods in meetings
and holding static postures.

…

… [H]er research productivity was impacted by her inability
to work longer hours because of her pain.

It is my opinion that her
episodes of reduced work hours and time off from work were reasonable and
medically sound for management of her pain and other symptoms secondary to the
MVA from which she has been partially disabled.

[72]        
The plaintiff refers to the recent decision of the BC Court of Appeal in
Ibbitson v. Cooper, 2012 BCCA 249, to support an award for past loss of
opportunities.  She argues that this case is the same as the case at bar in the
sense that the plaintiff had to work longer hours to earn the same amount of
money.

[73]        
The plaintiff claims $30,000 for her past income loss and past loss of
opportunities.

The Defendant’s
Submission

[74]        
There are three possible approaches to determining the plaintiff’s past
wage loss:

1.       determine
the  number of hours not worked multiplied by her hourly rate;

2.       determine
the percentage of lesser hours and measure them against the percentage of prior
tax returns (averaging them); or

3.       ballpark
a lump sum.

[75]        
The plaintiff has, at the defendant’s request, generated documents
herself purporting to articulate her wage loss claim.

[76]        
She explained during her cross-examination that she had generated the
figures for the lost wages from the Pharmacy by dividing her hourly rate by the
wages she was paid each pay period, as described in documents provided by her
employer.

[77]        
There are a number of problems with this approach during the February
2008 to December 2010 period, including that the plaintiff’s evidence that she
would sometimes bill time she worked to her employer outside the pay period
when the work was done; that she did not record the proportion of her time
spent working for the Pharmacy both before and after the MVA; and that she did
not account for or include amounts made pursuant to her consulting business.

[78]        
The plaintiff’s net income in the following years was as follows:

[79]        
It is to be noted that there was no increase in net income the two years
prior to the MVA.  In the year of the MVA, her net income increased.  In 2009,
it fell.  In 2010, it increased again, in addition to whatever undisclosed
income from her consulting operation she had left in the corporate entity which
she had incorporated that year.

[80]        
Further, if the plaintiff has established a past wage loss claim for the
period from February 2008 to December 2010, the defendant says that such an
award should take into account that increased hours at the Pharmacy may have
decreased the plaintiff’s ability to earn additional income from the other
sources that previously caused her income to grow, and that she may have chosen
to pursue a less lucrative, but more prestigious employment or contract
position, in order to bolster her resume.

[81]        
The defendant says that the plaintiff is not entitled to any award for
loss of earning capacity from January 2011 onwards, as:

1.       The
plaintiff agrees that she reduced her hours from the period from January 2011
through June 2011 due exclusively to personal issues.

2.       Her employer,
Leon Jung, who gave evidence for the plaintiff, stated during his cross-examination that he understands the plaintiff to have requested
coverage from a replacement pharmacist at the Pharmacy only two to four times
in the last 12 months.

[82]        
From January 2011, the plaintiff did not miss much
work, and therefore her past wage loss should not go beyond that date.

[83]        
Considering all of the foregoing, the plaintiff has failed to prove past
loss of wages and economic loss on a balance of probabilities. The onus rests
with the plaintiff to prove any past loss.

[84]        
The defendant argues that the correct amount to be awarded is somewhere
between $0 and $10,000.

Conclusion

[85]        
I agree with both counsel that determining the past wage loss requires
more than the application of a simple mathematical formula.  This is because of
the plaintiff’s different sources of income, each with different methods of
payment, and the lack of regular hours with respect to any of them.

[86]        
Nevertheless, I am satisfied that the plaintiff has proven a past wage
loss and past loss of opportunity.  The difficulty is in determining the
amount.

[87]        
I agree with the defendant that the plaintiff is not entitled to damages
under this head of damages for the period from January of 2011 through June of
2011 because of her evidence that she would not have worked during that time
period for personal reasons unrelated to the accident.

[88]        
I am satisfied that, for the balance of the period in question, the
plaintiff had opportunities that she was unable to take advantage of.  I am
also satisfied that she would have earned greater sums from all of her sources
of income if she had not been involved in the MVA.

[89]        
Considering the evidence, and all of the foregoing, I assess her damages
in this category at $20,000.

FUTURE
WAGE LOSS/FUTURE LOSS OF EARNING CAPACITY

The Plaintiff’s
Submission

[90]        
The plaintiff argues that her injuries will permanently prevent her from
earning what she would have earned but for the injuries.

[91]        
As a result of her injuries, the plaintiff transformed from a very
productive pharmacy manager, lecturer, coordinator, and researcher, who was
working 60 hours per week before the MVA to a person who is struggling with
pain to meet the demands of her job. She has worked reduced hours since the MVA,
and has had to miss time from work to attend physiotherapy and personal
training sessions.  Her injuries continue to adversely affect her work
productivity.  Among other things, it has become more difficult for her to
dispense medication and work with a computer, both essential aspects of her
various methods of earning income.

[92]        
Mr. Pakulak testified that the plaintiff could continue to work as a pharmacist
full-time, as long as she had accommodations.  The plaintiff says that
full-time now means 30 hours per week, however, she used to work 60 hours per
week before the accident.

[93]        
Takashi Yamazaki, a fellow pharmacist and former pharmacy technician,
has noticed the plaintiff’s struggles at work. He stated that she did not have
any problem performing her work as a Pharmacy Manager before the MVA; however,
since the MVA, when he has worked with her side by side, either as a pharmacy technician
or more recently as a pharmacist, he has noticed that her productivity has
declined because at times she has to go to the back room so that customers do
not see her take a break to stretch and manage her pain, or sit in the back
room when she has a headache.

[94]        
Leon Jung, a pharmacist and part-owner of the Pharmacy, testified that
after the MVA, there have been times when the plaintiff had to call in sick in
the morning or leave work early because she was in pain. This put the Pharmacy
in a bind for the day as they would have to scramble to find a pharmacist from
an affiliated pharmacy to replace her. This did not happen before the MVA. The Pharmacy
bought her an ergonomic chair and headset to use after the MVA. Mr. Jung
testified that there are more hours available for the plaintiff to work at the
Pharmacy if she wants, however, because of her injuries and pain, it is not
feasible for her to work more than the 24 to 30 hours per week that she had
been working at the Pharmacy.

[95]        
Dr. Rosemin Kassam was the plaintiff’s supervisor and mentor at UBC,
where the plaintiff was employed.  Prior to the MVA, the plaintiff’s work there
involved working 2½ days per week as a lecturer and coordinator, and a half day
per week as a researcher.

[96]        
Dr. Kassam’s evidence was compelling.  She referred to the plaintiff as
"exceptional" and said that the plaintiff had no problem handling a
60-hour per week workload before the MVA.

[97]        
Dr. Kassam’s evidence was that prior to the MVA, the plaintiff was
"really productive, quite capable, conscientious, intelligent, creative,
and quite amazing with numbers and analysis." Much of her productive work
and creative ideas she had came in the evenings and weekends, and that work
helped them receive a few grants.

[98]        
After the MVA, her injuries and pain resulted in her lack of
productivity and creativity. Dr Kassam could no longer count on her and the
plaintiff’s limitations were a source of frustration for both of them.

[99]        
Dr. Kassam testified that after the MVA the plaintiff became a
completely different person who was in excruciating pain and at least two out
of the three mornings she was scheduled to work during the week at UBC, she did
not come to work until the afternoon because she was awake during the night,
vomiting and taking medication, or seeing if a physiotherapist could fit her in
for an appointment. Instead of working evenings and weekends to analyze and
work on new research as she did before the MVA, the plaintiff was using that
time trying to catch up on her work as a coordinator; work that she normally
accomplished in the daytime before the MVA.

[100]     The
plaintiff argues that this lack of productivity due to pain interfered with her
ability to research, which denied her the opportunity to receive larger grants
for research projects. This, in turn, affected Dr. Kassam’s plan to increase her
hourly rate and pay her to work an extra day or two per week as a researcher.

[101]     Dr. Kassam
had to pick up the slack as she could no longer rely on the plaintiff to get
the research done in a timely manner. She had to hire research consultants to
do the analysis.

[102]     The
plaintiff also lost, as the result of her injuries, the opportunity to travel
to Uganda to work on a project involving malaria.

[103]     The
plaintiff’s inability to be as productive as she was before the MVA was a major
factor that culminated in the plaintiff leaving her position in the Faculty of
Pharmaceutical Sciences at UBC in February 2011.

[104]     Dr. Kassam
testified that before the MVA, the plaintiff was on a track which likely would
have resulted in her obtaining a PhD in Pharmaceutical Sciences.  She was
satisfied that the plaintiff had the ability, energy, and motivation to attain
that objective.  The plaintiff has an aptitude for pharmacy research, and this
PhD would potentially lead to a lucrative career in that area.

[105]     Since the
MVA, and the consequent changes that she has seen in the plaintiff, Dr. Kassam
is less certain that a PhD is attainable.  She believes that a more suitable
and likely goal for the plaintiff is a significantly lesser degree which will leave
the plaintiff with less lofty opportunities, and lesser financial rewards.

[106]     As a
professor, Dr. Kassam earns $130,000 per year plus benefits and pension.

[107]    
Dr. Finlayson’s medical legal report gives the following long term
prognosis:

She will probably intermittently need to reduce her hours
and/or take time off from work in the future while she remains symptomatic.

…

As it has been over four years
since the onset of her pain, and the prognosis for resolution of chronic pain
is poor after two years, it is my opinion that she will probably continue to
suffer from at least some degree of pain and partial disability from her
vocational and recreational pursuits on a long-term, permanent basis.

[108]    
Mr. Pakulak, in his Functional Capacity Report concluded that the
plaintiff:

Prolonged and repetitive overhead work, and repetitive
forceful use of the right arm should be kept to an occasional basis and avoided
whenever possible in order to avoid back, neck and right arm strain.  If she is
required to complete tasks requiring prolonged positioning of the neck and
shoulders for work in front of the body (including below waist level work) she
will be expected to experience increases in symptoms that will be likely to
result in reduced productivity over time….

…

Testing results suggest that
prolonged positioning of the neck and shoulders and repetitive use of the right
hand will result in increases in symptoms and as such, she should continue to be
provided with opportunities to take breaks as needed to stretch and change
positions.  She reported that she has reduced her workload compared to that
which she was completing prior to the subject MVA.  Testing results are
consistent with reported difficulties and support this reduction in work load.

[109]      Based on
the evidence of Dr. Kassam, Paul Pakulak, and Dr. Finlayson, while the plaintiff
is capable of working full-time (37 to 40 hours) as a pharmacist with
limitations, as a result of her injuries sustained and her ongoing pain, she is
no longer capable of working the 60 plus hours per week she was working before
the MVA.

[110]       The plaintiff has presented, in evidence, an economist’s report with
future income loss multipliers. Based on a hypothetical loss of $10,000,
$15,000, or $20,000 per year in income, because she is partially disabled, from
now until age 65, the net present value of her loss will be:

a $10,000 loss per year = $133,450

a $15,000 loss per year = $200,175

a $20,000 loss per year = $266,900

[111]     The
plaintiff argues that the $20,000 option is reasonable considering the amount
of money that Dr. Kassam earns, compared to what a simple pharmacist would
earn.

The Defendant’s
Submission

[112]    
The defendant argues the following positions, in the alternative:

1.       The
defendant agrees that the plaintiff cannot perform with the same effort in the
future as she did before the MVA.  However, this should be reflected in
non-pecuniary damages, not in loss of future earning capacity.

2.       The
plaintiff has failed to provide evidence to substantiate a loss of a future
capacity claim.

3.       If there is
going to be a future loss award, it should be for a period of one year, subject
to contingencies.

[113]     The
appropriate legal principles to be applied are as follows:

1.       The
claimant bears the onus of proving a substantial possibility of a future event
leading to an income loss, and the court must then award compensation on an
estimation of the chance that the event will occur.

2.       Compensation
may be available for loss of earning capacity, in an appropriate case, rather
than for a calculation of future loss of earnings.  A future or hypothetical
possibility of a future event must not be one of mere speculation; it will only
be taken into consideration if it is a real and substantial possibility.

3.       The capital
asset approach is more appropriate where the loss, though proven, is not
measurable in a pecuniary way: Perren v. Lalari, 2010 BCCA 140.

[114]    
The evidence does not support any loss:

1.       The plaintiff’s
net income has generally increased steadily since the MVA, with the exception
of a small decrease in 2009. Her pre-accident earnings are demonstrative, as they
indicate that while the plaintiff was working at her alleged full capacity, she
was earning less than she was after the subject accident.

2.       The plaintiff takes the position that her
injuries may prevent or limit her pursuing a career in research, as described
in the oral evidence of Dr. Kassam. However, Dr. Kassam’s evidence was that the
plaintiff would have no problem being accepted into the doctoral research
program, and she agreed that the program has accommodations for students
requiring them.

3.       The plaintiff has failed to discharge her burden
to prove there is a real and substantial possibility of a future event leading
to income loss.

4.       The
plaintiff’s work at the Pharmacy has been, and will continue to be, minimally
impacted.  Her fellow employees testified that:

(a) there was
always a technician working with the pharmacist, whose role is to assist the
pharmacist;

(b) there were
often volunteers available to assist the pharmacist; and

(c)  during the
last 12 months, the plaintiff has only asked that a replacement pharmacist fill
in for her on two to four occasions.

5.       The evidence of Mr. Pakulak was as follows:

(a) She
is able to perform all the work associated with being a pharmacist, with
restrictions on reaching out.

(b) The
plaintiff is “competitively employable”.

(c) The
plaintiff was able to perform the full day of testing required, including the
vigorous testing at the end of the day, with good effort, although displaying
and reporting some pain symptoms.

[115]    
If there is a substantial possibility of a future event leading to
income loss, the defendant argues that the assessment should consider the
following contingencies:

1.       The plaintiff, in an effort to improve her
resume and career skills, has demonstrated a willingness to take less lucrative
jobs, and may do so again in the future.

2.       The plaintiff, in order to improve her resume
and career skills, has indicated that she wishes to continue pursuing
opportunities outside of the Pharmacy dispensary.

3.       The plaintiff has not provided evidence of
periods when she was unable to work for more than a few hours or a few days at
a time.

4.       Her
natural intelligence, creativity, and project management skills, namely the
skills that Dr. Kassam stated made her an excellent candidate, along with her
unique and impressive resume, make her marketable.

[116]     The
defendant argues that he should be able to benefit from the plaintiff’s
continuing strong work ethic, in the same way he would suffer if the plaintiff
had a thin skull.

[117]     The
defendant argues that nothing should be awarded in this category.

Conclusion

[118]     I am
satisfied that there is a real and substantial possibility that the plaintiff
will be unable to earn future income as a result of the MVA, which she would
have otherwise been able to earn.  This real and substantial possibility is
based on the evidence, and is not mere speculation.

[119]    
In that regard, I am satisfied of each of the following:

1.       The plaintiff is no longer working the
60-plus hours per week that she was working before the MVA.

2.       She will be unable to work as many hours, or
as effectively, as a clinical pharmacist, lecturer, coordinator and researcher.

3.       She is much less likely to earn a PhD in
Pharmaceutical Sciences than she would have been prior to the MVA.

[120]     Prior to
the MVA, the plaintiff was a unique and accomplished pharmacist and Researcher. 
If she were able to continue on the career path that she established before the
MVA, she had a chance to be extraordinary. The MVA has taken that chance away
from her.

[121]     I accept
as reasonable and accurate the opinions of Dr. Kassam with respect to the
consequences of the plaintiff’s injuries to her career goals.

[122]    
The foregoing represents an impairment of the plaintiff’s capital asset,
for which she is entitled to be compensated.

[123]    
I am satisfied that each of the following descriptions is applicable to
the plaintiff in the circumstances of this case:

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

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

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

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

Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d)
393 at 400 (C.A.)

[124]     In view of
all the foregoing, I am satisfied that the appropriate assessment for loss of
future earning capacity is $200,000.

COST OF
FUTURE CARE

The
Plaintiff’s Submission

[125]    
Dr. Finlayson recommends that the plaintiff pursue the following:

1.       physiotherapy two to four times per month on
an indefinite basis for pain management;

2.       kinesiology/personal training, eight to 10 sessions
every six months;

3.       medications; and

4.       Botox
injections at $375 per treatment, which may need to be repeated as often as
every three months.

[126]     Dr.
Finlayson testified that these treatments will be needed for years, not months,
and possibly for the rest of her life. This is consistent with the opinion that
Dr. Finlayson expressed in her medical legal report that the plaintiff "will
probably continue to suffer from at least some degree of pain and partial
disability from her vocational and recreational pursuits on a long-term,
permanent basis."

[127]     The
plaintiff’s evidence was that she has not taken physiotherapy in the past year,
partially because she is obtaining injections but also because of the expense.

[128]     She
testified that Dr. Murphy said that the sessions are necessary because they
help to motivate a person who is in pain, and who might not do the exercises on
her own without the motivation.

[129]     There is a
Future Cost of Care Report in evidence estimating the yearly cost of
physiotherapy, kinesiologist/personal training, and Botox at $4,794 per year.

[130]     The report
allows for different scenarios for the cost of future care based on the total
estimated yearly cost of $4,794.  The following are scenarios for the net
present value of the treatment assuming that the plaintiff needs these
treatments for the next 10 years, 15 years, or 20 years or the rest of her life:

For the next 10
years:       $40,365.00

For the next 15 years:       $55,711.00

For the next 20 years:       $68,444.00

For the rest of her life:       $106,970.00

[131]     The
plaintiff argues that the 20-year option is reasonable in view of the evidence
of Dr. Finlayson.  The plaintiff is not suggesting that the calculations should
be based on the rest of her life.  The plaintiff suggests $65,000.

The Defendant’s
Submission

[132]     The
defendant does not dispute the plaintiff’s scenarios or calculations.  Rather,
the defendant disputes whether the plaintiff needs the future care for which
she is claiming compensation.

[133]     The court
should apportion these damages at 50/50 between the MVA and the PCOS.

[134]     Dr.
Finlayson testified that the plaintiff requires physical training in order to
treat her symptoms arising from the accident, as well as to treat her high
blood pressure and PCOS.  An award for amounts to cover personal
training costs should be reduced by half to take this into account.

[135]     The test
for assessing future care costs is well-settled: are the costs reasonable and
are the items medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (S.C.) at page 78; aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.)

[136]     Dr. Finlayson’s
evidence is that physiotherapy is unlikely to improve the plaintiff’s
condition, but is a pain-control mechanism.

[137]     The
plaintiff testified that she did not receive much relief from physiotherapy.

[138]    
Furthermore, the defendant says there is no evidence that so many
physical training sessions are medically necessary or reasonable.  Dr.
Finlayson’s evidence was that the sessions were recommended to:

1.       show the plaintiff how to use gym equipment
appropriately and safely;

2.       to teach her appropriate exercises; and

3.       to
motivate and push her.

[139]    
In the circumstances, the defendant says the plaintiff has failed to
substantiate a medical justification for further physiotherapy treatments:

1.       The defendant argued orally that Dr.
Finlayson said that only eight to 10 sessions every six months are necessary.

2.       The
defendant submits that someone as intelligent as the plaintiff does not require
dozens of sessions of personal training in order to learn to exercise properly,
and there is no evidence that the plaintiff requires any assistance motivating
herself to succeed.

[140]     With
respect to Botox:

1.       There is no evidence that the plaintiff
intends to take the recommendation of Dr. Finlayson, provided in her report,
that she take the Botox injection treatment.

2.       The defendant argued that Dr. Finlayson
testified that she is on the cusp of actually recommending this, but that the
plaintiff has no inclination to do it.

3.       The plaintiff argued that she testified that
if Dr. Finlayson does actually recommend it now, she is prepared to weigh the
risks and benefits.  She will ask Dr. Finlayson.

4.       If
the court finds that the plaintiff is entitled to an award for Botox injection
therapy, the amount awarded should be reduced to reflect the potential
effectiveness of the program for the plaintiff, as described above.

Conclusion

[141]     I am
satisfied that the portion of the damages which relate to physical training
should be apportioned 50/50 between the MVA and the PCOS.

[142]     The
evidence is not clear what amount of the annual figure of $4,794 is intended
for physical training.

[143]     I am
satisfied that the plaintiff is entitled to the future cost of care with
respect to all of the other recommendations of Dr. Finlayson.

[144]     Considering
all of the foregoing, I am satisfied that the correct assessment is one of $50,000.

SPECIAL
DAMAGES

[145]     The
plaintiff claims $9,630 for special damages arising from physiotherapy,
personal training, and prescribed medications.

[146]     The
defendant acknowledges that he is responsible for $6,500 of those damages. 
With respect to the balance of $3,130, he acknowledges that the plaintiff has
paid that amount.

[147]     What the
defendant disputes is the extent of personal training that is attributable to
the MVA.  He argues that the amount in dispute represents an amount that should
be attributed to the plaintiff’s pre-existing condition of PCOS.

[148]    
More specifically, the defendant argues as follows:

1.       The evidence was that the plaintiff required
physical training in order to treat her symptoms arising from the accident, as
well as to treat her high blood pressure and PCOS.

2.       There is no evidence that so many physical
training sessions were medically necessary or reasonable – Dr. Finlayson’s
evidence was that the sessions were recommended to:

(a)
show the plaintiff how to use gym equipment appropriately and safely;

(b)
to teach her appropriate exercises; and

(c) to
motivate and push her.

3.       Someone as intelligent as the plaintiff does
not require dozens of sessions of personal training in order to learn to
exercise properly, and there is no evidence that the plaintiff requires any
assistance motivating herself to succeed. 

[149]     The
defendant argues that any award for amounts spent to cover personal training
costs should be reduced by half to take this into account.

[150]     I agree
with the defendant that the amount of $3,130 should be divided 50/50 between
the MVA injuries and the PCOS.

[151]     Therefore,
the plaintiff’s special damages are the total of $6,500 plus 50% of $3,130 ($6,500
plus $1,565) for a total of $8,065.

CONCLUSION

[152]     The
defendant’s negligence caused the MVA; the plaintiff is contributorily
negligent.  The defendant’s responsibility is 95%; the plaintiff’s 5%.  The
defendant is responsible for 95% of the plaintiff’s damages.

[153]     The plaintiff
did not fail to mitigate her damages.

[154]     Damages
for her non-pecuniary loss are assessed at $75,000.

[155]     Damages
for her past wage loss/past loss of capacity are assessed at $20,000.

[156]     Damages
for future wage loss/future loss of earning capacity are assessed at $200,000.

[157]     Damages
for her cost of future care are assessed at $50,000.

[158]    
Damages for her special damages are assessed at $8,065.

“Silverman J.”

_______________________________

The Honourable Mr. Justice Silverman