IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121212

Docket: M080699

Registry:
Vancouver

Between:

Irma Yolanda
Ortega

Plaintiff

And

Rolando Pena and
Helena Rak

Defendants

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

INTRODUCTION

[1]            
This is a claim for damages arising from a motor vehicle accident that occurred
on November 12, 2006.

[2]            
The plaintiff, Irma Ortega, was a passenger in a vehicle driven by the
defendant, Mr. Pena, her common law husband. The accident happened when
Mr. Pena was driving down a hill on Regal Drive in Surrey, British
Columbia in wet conditions. As they approached River Road, Mr. Pena was unable
to stop at a stop sign and collided with a vehicle proceeding through the intersection,
driven by the defendant Ms. Rak.

[3]            
Ms. Ortega was injured in the accident and claims non-pecuniary
damages, special damages, cost of future care, lost earnings between the date
of the accident and the date of trial as well as loss of future earning
capacity.

[4]            
Liability has been admitted and accordingly, the issues in this case
concern the proper assessment of damages.

BACKGROUND

The background of Ms. Ortega and Mr. Pena

[5]            
The plaintiff was born May 10, 1962 in El Salvador where she achieved a grade
six education.

[6]            
At the time of trial she was 50 years old.

[7]            
In 1980, as a result of political disruption in El Salvador, Ms. Ortega
and some of her family members moved to Costa Rica where she married. She moved
to Canada in 1982. She knew no English at the time and she took a three month
English language course.

[8]            
Ms. Ortega initially moved from Costa Rica to the Vancouver area. She
then moved to Toronto but later moved back to Burnaby.

[9]            
Since moving to Canada, Ms. Ortega has worked in a number of positions
involving physical labour, including housecleaning, manufacturing, and folding
and bagging of laundry. Her jobs have included cleaning in office towers and working
as a chambermaid in a hotel, which involved such duties as cleaning lobbies,
washrooms and parking lots. During this period, she and her previous husband had
two young children. Childcare responsibilities largely fell to the plaintiff.
Ultimately, she and her first husband separated.

[10]        
Ms. Ortega then returned to the lower mainland to Burnaby. She again
found work cleaning office towers.

[11]        
She met Mr. Pena and the two have since lived together for about 22
years. They have two daughters who are now 15 and 20 years old.

[12]        
For a number of years following the birth of their last child, Mr. Pena
and Ms. Ortega also cared for foster children at the elementary school level. Ms.
Ortega typically accepted and cared for three foster children in addition to
her own children at any given time.

[13]        
Mr. Pena was also born in El Salvador. He moved to the United
States when he was 17 years old and he then moved to Canada when he was 24
years old.

[14]        
While in the United States, Mr. Pena completed his high school
education and worked for a dry cleaning business. After his move to Canada, he
took college preparatory English and became certified as a nurse’s aide. He
then enrolled at British Columbia Institute of Technology where he took a
medical office assistant course. He was unsuccessful in finding a job in that
field and he ultimately took a position at a local hospital in the laundry
department where he worked for six years before being laid off in 2005 as a
result of the privatization of laundry services.

[15]        
At that time, Ms. Ortega stopped accepting foster children.

Black Swan Cleaners

[16]        
Following Mr. Pena’s lay off from the hospital, Mr. Pena and Ms. Ortega
decided to start their own dry cleaning business. They had built equity in two
homes they owned by this time and they decided to invest that equity into their
new business. In addition to investing the equity from their properties, on the
advice of their accountant, they drew down funds from Ms. Ortega’s RRSP to
finance the first year of their business operations.

[17]        
Ms. Ortega and Mr. Pena opened Black Swan Cleaners (“Black Swan”) in
April 2005 at locations in Surrey and White Rock. They are equal owners of the
business.

[18]        
In April 2007, they closed the White Rock location to focus on the more
successful Surrey location.

[19]        
The two worked hard to build up their business. They worked six days a
week, often 12 or more hours per day.

[20]        
Black Swan is a typical family-run business. Each of Mr. Pena and
Ms. Ortega played an important role in its operation: they invested their own
capital into the business, worked hard to build its clientele and put in long
hard hours working at the business.

[21]        
While they shared the work, Mr. Pena’s past experiences in the laundry
and dry cleaning industry allowed him to focus on the technical aspects of the
business. He was also generally in charge of the dry cleaning service because
of his past training. Ms. Ortega was in charge of shirt pressing. She spent about
five hours a day using the shirt press machine and doing touch-up ironing. She
greeted customers, receiving and dispensing their laundry. She also tagged,
bagged and sorted clothes, rolled heavy carts of clothes to the back of the
store, swept and kept the store clean.

[22]        
The success of Black Swan is reflected in its financial records. The
Sales and Net Income figures in the “Statement of Business Activities” prepared
by their accountant and annexed to both Ms. Ortega and Mr. Pena’s income
tax returns generally show a slow and steady growth:

* gross
income figures are inclusive of all taxes and discounts on sales.

** net
income (loss) before adjustments.

[23]        
There are two matters I will note at this stage of my decision. First,
the figures reflect a business income which was shared equally between Mr. Pena
and Ms. Ortega. Second, during the short time the business has been operating, a
competitor opened in the area but that business has not survived and it recently
closed.

 The accident

[24]        
As noted above, the accident occurred on November 12, 2006. Immediately
prior to the collision, Ms. Ortega braced herself for the impact using her feet
on the floor of the vehicle and her hand on a handle above the passenger door.
She testified that after the accident she was able to get out of the vehicle
herself and that she felt no pain until the following day. She said the pain at
that time was “all over” her back, in her shoulder, hip and arm. She also had
headaches and bruising.

 The plaintiff’s initial pain symptoms

[25]        
Ms. Ortega testified she returned to work the day following the accident
but there were many tasks she could not do because of the pain she experienced.
She could not use the press or iron because of the pain in her shoulders, arms
and back. Ms. Ortega did not immediately consult a doctor. At the time, she
believed her condition would eventually improve.

[26]        
It was not until December 26, 2006 that she finally decided she needed
to seek medical attention. She attended a walk-in clinic close to her place of
work where she was prescribed Tylenol 3 for her pain. Ms. Ortega was seen by
Dr. Guy. Dr. Guy noted she was complaining of pain in the “right neck through
to low back as well as right groin” and that she was “tender involving the
right T10 through to L3 paraspinals.”

[27]        
Subsequently, Ms. Ortega attended her then family physician, Dr. A.
Manes. After ordering x-rays, which showed her thoracic and lumbar spine areas
to be “unremarkable”, Dr. Manes advised her to continue working and
assured her the soft tissue injuries would improve over time. Ms. Ortega was
treated by Dr. Manes from January 11, 2007 to June 1, 2007. His clinical
notes indicate persistent lower lumbosacral pain, left lumbar pain and a diagnosis
of mechanical back pain. He prescribed exercise (which on a later visit he
noted she had not been doing) and the medication Robaxacet.

[28]        
Ms. Ortega said she felt uncomfortable communicating with Dr. Manes at
this time. She felt he did not understand her particularly well and she has
since attended other physicians.

[29]        
Ms. Ortega’s neck and back pain have continued to the date of trial. I will
describe her subsequent medical treatment below

 The plaintiff before and after
the accident

[30]        
Ms. Ortega testified that before the accident she enjoyed salsa dancing
and walking. She said she often walked around Stanley Park or on Robson Street
with her family. She went out dancing on occasion with her family but often
danced at home with her daughters. She no longer does either as both activities
cause her pain. She does not visit her sisters for family get-togethers as
frequently for the same reason.

[31]        
The pain has also affected her ability to work. Ms. Ortega testified
that she can no longer operate the shirt press nor do any heavy lifting at work.
She has to take rests during the day because of the pain in her back, buttocks
and shoulder areas.

[32]        
Mr. Pena confirmed that work became difficult for Ms. Ortega after
the accident. Before the accident, Ms. Ortega worked the press, ironed shirts,
bagged and tagged laundry and worked at the front of the store meeting
customers when they dropped off and picked up clothes. He said that after the accident,
he has taken over these functions and some of the counter work. He eventually
hired an assistant to relieve him of these additional responsibilities. Ms.
Ortega no longer presses and irons. She has difficulty sweeping the floors. Mr.
Pena said she has difficulty lifting the hand iron and heavy garments and she
no longer moves the bins of clothes to the back of the store. She takes twice
the time to complete her tasks. Whereas before the accident she worked 12, and sometimes
14 hours, per day, she now lies down to rest or sit between one and four hours
a day. Her maximum level of productivity is now about four hours a day.

[33]        
Mr. Pena also testified about an incident that occurred in September
2010. At that time, he went home to El Salvador to be with his father who was dying.
He left the operation of the business to the care of Ms. Ortega. He said he
received a call from his sister saying Ms. Ortega did not look well and that he
should come home. He testified that when he returned he discovered the
plaintiff had lost a great deal of weight as a result of worrying over the dry
cleaning business. She was in a great deal of pain. She had been working long
hours, sometimes staying overnight in the store. Also, the boiler had given out
and she did not know how to fix it, adding to her level of stress. He
ultimately had it fixed but Black Swan was unable to do its own dry cleaning
for several months as a result. During this time he took laundry to other dry
cleaners in the area, causing their business to decline.

[34]        
Ms. Ortega’s sister, Ms. Manvijar, also testified as to her
observations of Ms. Ortega’s abilities before and after the accident. The
sisters are quite close: Ms. Manvijar attended the dry cleaning business
to visit with Ms. Ortega about three times a week.

[35]        
She described the plaintiff as being a “happy”, “energetic” person who
worked “really hard”. She testified that before the accident her sister was the
“clown of the family”; she was known to play and kid around. Ms. Manvijar
also confirmed Ms. Ortega’s love of Latin dancing and her keenness in teaching
that form of dance to her daughters.

[36]        
Ms. Manvijar testified that after the accident, her sister was “not
the same anymore”. At work she confined herself to serving customers and she no
longer did the ironing. She also had problems getting clothes from the racks at
work. If she lifted too much she would have to recover and rest in a dressing
room.

[37]        
Ms. Manvijar testified Ms. Ortega did not appear nearly as happy and
carefree following the accident. She became tired more easily.

[38]        
The evidence clearly establishes that Ms. Ortega was an energetic and
hardworking person prior to the accident. During her many years of working in
various cleaning and manual labour positions she also raised two children with
her previous husband and her two daughters with Mr. Pena. During the latter
period, she additionally cared for young foster children until 2005 when Mr. Pena
lost his job. She then worked alongside Mr. Pena to build a growing and successful
dry cleaning business.

MEDICAL EVIDENCE

Dr. Sean Petrovic

[39]        
Ms. Ortega changed family physicians in early June 2007. She saw Dr. Sean
Petrovic on several occasions in 2007 and at least once in 2008 regarding her
injuries sustained in the accident. When she first saw Dr. Petrovic, his clinical
records indicated she was complaining of headaches as well as neck and lower
back pain. In December 2007, she was still complaining of back pain. Dr. Petrovic
prescribed physiotherapy and stretching exercises. She had a CT scan in
December 15, 2007, which showed mild spinal stenosis. In March 2008, Dr. Petrovic
prescribed Tylenol 3 and another drug for chronic back pain. Ms. Ortega was
complaining of continued cervical, dorsal and lumbar back pain and headaches.

[40]        
Between July 2007 and June 2008, Ms. Ortega attended physiotherapy.

[41]        
Because she was not satisfied with the progress she was making and felt
there was something physically wrong which had not shown up in the x-rays, Ms.
Ortega decided to have an MRI performed on her shoulder and lumbar spine. She
travelled to El Salvador in July 2007 for that purpose. The MRI report
concluded:

In the intervertebral spaces of L1-L2,
L4-L5 [and] L5-S1 there are central and multi-directional subligamental disc
protrusions, in L4-L5 associated with a certain facet disorder, resulting in a
certain degree of bilateral foraminal canal narrowing but without clear
evidence [of] radicular compressions.

[42]        
A November 2007 radiology report ordered by Dr. Petrovic showed a
“broad based concentric disc bulge or protruding disc herniation present at
L4/5 … contributing to mild spinal stenosis” and a “mild left paracentral
eccentric disc bulge … to the L5/S1” which was “mildly encroaching on the
L5/S1 neural foramina”. Ms. Ortega underwent an exercise stress test at Surrey Memorial
Hospital on October 5, 2007 where her functional capacity was observed as normal.

Dr. Lisa Caillier

[43]        
In July 2009, Ms. Ortega was referred by her counsel to Dr. Lisa
Caillier, a physician specializing in physical medicine and rehabilitation,
also referred to as physiatry. Her speciality involves the assessment,
diagnosis and treatment of musculoskeletal problems involving, but not limited
to, the neck, back, spine, elbows, knees and hips. Her specialty also includes
rehabilitation and, as such, involves the assessment of impairments and the evaluation
of associated disabilities and treatments. Dr. Caillier is also a clinical
instructor at the Faculty of Medicine at the University of British Columbia and
is a staff member at the GF Strong Rehabilitation Centre and at Vancouver
Coastal Health.

[44]        
Dr. Caillier saw Ms. Ortega for a medical assessment on October 5,
2009 and  conducted an updated assessment on November 9, 2011. Dr. Caillier
prepared four medical legal reports that were filed as exhibits and she was
cross examined at trial. The first two reports, dated October 5, 2009 and
December 12, 2011, were written in response to her assessments of Ms. Ortega’s
medical condition. The second two reports, dated March 4, 2012 and April 29,
2012, dealt with two questions posed to her by counsel, the first dealing with
symptomatic relief of corticosteroid injections and the second clarifying what
she meant by Ms. Ortega’s ability to work “full time hours” in the dry cleaning
business.

[45]        
In her report completed on October 5, 2009, Dr. Caillier made
observations in respect of an evaluation she had conducted on the plaintiff
that day in her office, after reviewing Ms. Ortega’s medical records. Her
opinion was as follows:

Ms. Ortega has a chronic pain
syndrome involving the mid to low back regions that is soft tissue in nature.
Ms. Ortega has chronic mechanical low back pain.

Ms. Ortega has a chronic pain
syndrome which is soft tissue in nature involving the neck, posterolateral
shoulders and upper back. Her headaches are likely cervicogenic in nature.

Ms. Ortega has chronic pain
involving the right shoulder which is also soft tissue in nature and likely due
to intermittent symptoms consistent with an impingement syndrome. It is
likely that a reduction in muscular strength or imbalance about the right
shoulder girdle has allowed for Ms. Ortega to experience symptoms consistent
with impingement on certain activities.

Ms. Ortega has become
deconditioned as a result of a decrease in regular activity at work, within the
home and outside of work. The deconditioning is having a negative impact on
her pain, mood, function and activity.

It is my opinion that Ms. Ortega
sustained a musculoligamentous injury to the neck, shoulders, upper back, low
back and lateral hip regions as a result of the motor vehicle accident of
November 12, 2006. Ms. Ortega’s residual soft tissue symptoms are reflective of
and a direct consequence of, this accident.

It is my opinion that the disc
bulges and degenerative changes noted on the CT Lumbar Spine as well as the
MRI, are likely preexisting, and thus are unlikely to have been caused by the
motor vehicle accident of November 12, 2006.

It is my opinion that Ms. Ortega’s
preexisting degenerative changes within the lumbar spine were likely aggravated
as a result of the motor vehicle accident of November 12, 2006. Her ongoing
mechanical low back pain is likely secondary to this aggravation.

[Bold emphasis in original.]

[46]        
Dr. Caillier was also of the opinion the likelihood of Ms. Ortega becoming
pain-free was poor. It was “likely that she will continue to have constant pain
within the mid to low back region as well as intermittent pain involving the
neck and shoulders into the future and beyond the next 12 – 18 months.”

[47]        
Dr. Caillier made several recommendations for Ms. Ortega’s ongoing
treatment:

·      
involvement in an active rehabilitation program to assist in
reducing the intensity of pain and increasing her ability to do cleaning duties
and handle the workload at the dry-cleaning store;

·      
24 to 36 one-on-one sessions with a kinesiology-based exercise
trainer focused on strengthening her neck, all areas of her back, pelvis,
rotator cuff muscles and her extremities;

·      
a gym pass and a pool pass of at least 6 months duration;

·      
regular exercise three to four times a week; and

·      
trial medication to assist her chronic pain and sleep.

[48]        
Dr. Caillier also opined Ms. Ortega’s symptoms would “probably”
improve if she undertook the above summarized exercise program and said “[i]t
is my opinion that Ms. Ortega will be able to continue within this job without
restrictions.” She further said:

In regards to her dry cleaning
position, at the present time, Ms. Ortega is restricted in heavy lifting and
lifting above shoulder level, ironing and bending and twisting motions. It is
my opinion that through improving the conditioning, muscular strength,
flexibility and endurance of not only the low back and core but also of the
neck and shoulders, it is probable that she will be able to participate in
other activities of dry cleaning including that of ironing, lifting bags from
the counter upwards to the shelf, laundry and bending and twisting motions.

[49]        
In her re-assessment report prepared on December 12, 2011, Dr. Caillier
noted that pre-existing degenerative change shown on Ms. Ortega’s MRI taken in
El Salvador “probably rendered the degenerative changes within the lumbar spine
symptomatic”. She reiterated the opinions expressed in her earlier report. She observed
that Ms. Ortega had been involved in an active rehabilitation program but
remained restricted in her activities. She emphasized the importance of Ms.
Ortega engaging in regular exercise, which included exercises given to her by a
trainer and general exercise to improve her overall physical conditioning. She believed
Ms. Ortega might have right shoulder impingement syndrome and she recommended that
Ms. Ortega be evaluated by an orthopaedic surgeon to be considered for trial corticosteroid
injections to lessen her pain and assist in her mobility. She opined it was not
likely Ms. Ortega would return to her pre-accident activities, such as dancing.

[50]        
With regard to her ongoing work at Black Swan, Dr. Caillier opined:

In regards to working fulltime
in the dry-cleaning shop, she continues to do this, but in my opinion remains
restricted in heavy lifting as well as lifting above shoulder level and ironing
secondary to her right shoulder symptoms and is limited in bending, twisting,
heavier impact activities, as well as repetitive bending and sustained
posturing secondary to her mid to low back symptoms.

Ms. Ortega would likely benefit
from being involved more in the front desk or service portion of the
dry-cleaning business, such as working at the front rather than involving
herself in the heavier aspect of this position.

It is my opinion that she is
restricted in the activities that she did before the MVA, such as picking up
and lifting of the heavy clothes, as well as the ironing and pressing. It is my
opinion that, unless there is significant improvement in her right shoulder
symptoms, particularly that of ironing, she will likely not return to the
ironing and pressing aspect of this job.

It is my opinion that she is capable
of being involved in the [dry] cleaning business on a fulltime basis, but more
involved with the lighter or sedentary tasks.

[51]        
Dr. Caillier reported again in a letter on March 4, 2012 in
response to a request from Ms. Ortega’s counsel to provide an opinion on the
number of injections a patient can undergo and the duration of symptomatic relief
gained from such injections to the shoulder area. Dr. Caillier opined the
number of corticosteroid injections a person could have per year was typically
two but that sometimes a third could be completed. She also opined the duration
of relief varied “from several days to several weeks to several months to up to
a year as well as permanent resolution of impingement of symptoms”. She noted Ms.
Ortega had started this treatment and that she had enjoyed some relief from her
shoulder pain.

[52]        
In her final report completed on April 29, 2012, Dr. Caillier
clarified that when she had observed earlier that Ms. Ortega was able to work
full time, she meant eight hours a day, five days a week and “not … twelve
hours a day for 6 days a week.” In her view, working 72 hours a week diminished
her ability to manage her physical symptoms by lessening her ability to
exercise regularly.

[53]        
Dr. Caillier was cross examined at trial. She agreed it was “possible”
that over the next ten years, absent the motor vehicle accident, Ms. Ortega’s
physical problems that predated the accident could have been aggravated “by
other things” such as heavy lifting or age. She agreed persons involved in
heavy labour were more likely to develop mechanical back pain. She also agreed Ms.
Ortega was physically deconditioned and that it was critical for her to build
core muscles.

[54]        
Dr. Caillier agreed an active rehabilitation program would assist Ms.
Ortega in managing her pain; she also agreed her pain would never recede
entirely.

[55]        
When counsel suggested that Ms. Ortega had not given herself a chance to
improve in the three years following the accident, Dr. Caillier emphasized
that it was critical for persons in Ms. Ortega’s position to have proper
instructions with regard to exercise.

[56]        
Dr. Caillier also testified in cross examination that as Ms. Ortega
had some relief with the corticosteroid injection in March, she may be a candidate
for arthroscopic surgery. She said it was possible injections would permanently
resolve Ms. Ortega’s problems but that such resolution was much more difficult
with chronic pain.

 Dr. Arno Smit

[57]        
Dr. Arno Smit, an orthopaedic surgeon, saw Ms. Ortega on October
24, 2011 on a referral from Dr. Petrovic. He completed a medical legal report,
dated April 29, 2012, which was filed as an exhibit at trial. Dr. Smit was
of the opinion that Ms. Ortega’s pain was related to a rotator cuff
tendinopathy shown on a MRI arthrogram, dated June 14, 2011. He injected her
right shoulder with corticosteroid in two places.

[58]        
When he next saw her on December 8, 2011, Ms. Ortega had informed
him the injection had been “quite helpful” but she also complained about residual
pain on forward elevation. Dr. Smit reported that Ms. Ortega was “very
happy” with her progress.

[59]        
Dr. Smit followed up with a further examination on April 12, 2012. Ms.
Ortega again told him the injection was “very helpful” but that some of the
pain had since returned. He found Ms. Ortega to be “functioning fairly
well” and he suggested a repeat injection if her symptoms increased in severity.
He also proposed, in the alternative, a reassessment for the purposes of
performing an arthroscopy.

[60]        
Dr. Smit’s diagnosis of Ms. Ortega was that she suffered from a contusion
injury to her right hip with soft tissue injury and soft tissue injury of her
lower back and right shoulder. He opined that as it was now five and a half years
after the accident, it was unlikely she would experience any further
spontaneous improvement with time.

[61]        
He concluded his report by stating:

This patient
sustained injury to the right hip, the lower back and the right shoulder at the
time of the motor vehicle accident of November 12, 2006. The accident should be
considered the sole cause of the patient’s injury.

Working
diagnoses are soft tissue of the right hip, soft tissue injury of the lower
back, soft tissue injury of the right shoulder. None of these diagnoses should
be considered exhaustive or definitive. Further diagnostic workup may be
considered, particularly as it relates to the hip and the shoulder, with repeat
injection or shoulder arthroscopy likely indicated within the next year. All of
this has been outlined above.

The patient
cannot realistically expect any significant spontaneous improvement with time.
Most likely, she will experience symptoms similar in intensity to what has been
experienced to date. As it relates to her right hip and lower back, she may
experience a slow deterioration in function and increase in pain over time,
most likely not noticeable until at least 10 or 15 years have passed. Most
likely, her shoulder symptoms will remain unchanged. It is unlikely that she is
at increased [risk] of developing progressive osteoarthritis in the shoulder.

ADDITIONAL EXPERT EVIDENCE

Mr. Min Trevor Kyi

[62]        
Following an examination of Ms. Ortega (which occurred from
approximately 9:00 a.m. to 4:00 p.m.) on January 10, 2012, Mr. Kyi
prepared a Functional (Work) Capacity Evaluation, dated January 17, 2012, which
was introduced at trial. Mr. Kyi was cross examined on his report.

[63]        
Mr. Kyi observed that Ms. Ortega put in a high level of physical effort
and  was pleasant and cooperative throughout the testing process. He noted the
clinical findings supported her subjective reports on her abilities and
limitations to be “reasonable and reliable”. Additionally, he noted that she
did not overstate her pain and disability.

[64]        
He concluded that Ms. Ortega was functionally capable of work that
involved reaching, handling, fingering and feeling, so long as this work was
kept between waist and chest level. He found that her general level of physical
fitness varied from poor to excellent. She had a full-day tolerance for involvement
in medium-strength work activities and he recommended she make on-going active
exercise a part of her lifelong routine. He found she was also fully functional
for “basic level terrain walking, stair climbing, short periods of mild to
moderate bending and short periods of crouching and or kneeling”.

[65]        
Mr. Kyi found Ms. Ortega was capable of sedentary and light
strength lifting as well as pulling, carrying and pushing work activity. She
had a sitting tolerance of one to two hours with a standing tolerance of the
same. He recommended that static standing be limited to 30 to 60 minutes at a
time.

[66]        
He recommended that above-shoulder work be avoided or performed only for
short intervals. He further noted that she should be restricted to short
periods of crawling and that she should avoid working on elevated, wet,
slippery or moving surfaces due to upper level balance limitations. He also
concluded that she should avoid rapid pace walking and prolonged static bending
at the waist, particularly when lifting weight.

[67]        
Mr. Kyi observed that by the end of a full day of testing, Ms.
Ortega had functionally declined. She showed reduced lower back motion range
and reduced muscle velocity in her neck-shoulder region, mid and lower back and
hip areas. She also had reduced walking speed and productivity.

[68]        
He concluded that her suitability for dry cleaning work “is not an
entirely black and white issue.”  He acknowledged that she had returned to work
post-accident and that this was possible in part because she knew the work and she
had some control over her schedule and the tasks she performed and/or delegated
to others.

[69]        
He further opined:

On the not-so-positive side,
results of [Functional (Work) Capacity Evaluation] testing identified
consistent and reproducible limitations to certain physical activities which
are an inherent and unavoidable aspect of work in the dry cleaning field. In
particular, Ms. Ortega showed increased sign of pain and physical restriction
with tasks such as: static standing, bending, above shoulder reaching, and
repetitive upper extremity usage, each of which are required of dry cleaning,
made worse when performed while holding heavier items out from her body (i.e.
overcoats, men’s suits, stacks of shirts on hangers, etc.). From a purely
objective standpoint, Ms. Ortega does not meet the full medium strength work
criteria associated with work as a Drycleaner. [Notation omitted.]

[70]        
Mr. Kyi recommended that Ms. Ortega spend two sessions with a physical
therapist ($60 per hour) to provide her with safe and clear exercise
restrictions. He also recommended that she work with a personal fitness trainer
($60 per hour) to ensure program set-up and design with monthly sessions to be
repeated throughout the year.

[71]        
In addition, he recommended:

·      
an annual gym membership ($340 to $600 per year);

·      
a High Back Oblusform back support ($79.95 to be replaced every three
to five years);

·      
an orthopaedic pillow to improve her sleep ($50 to $200 to be replaced
every three to five years); and

·      
an ergonomic sit-stand stool (cost $199 to $309 to be replaced every
three to five years).

[72]        
These items were suggested “dependent upon accepted prognosis”.

[73]        
In cross examination, Mr. Kyi acknowledged that he had not seen Ms.
Ortega before 2012, over five years after the accident. He also had no idea how
she had performed at work prior to the accident.

Dr. Dean Powers

[74]        
Ms. Ortega was also assessed by Dr. Powers, a vocational
rehabilitation consultant, who prepared a vocational assessment report, dated
February 29, 2012. Dr. Powers interviewed Ms. Ortega on February 21, 2012.
His opinions were based on the interview and on his review of her medical
history as provided by her counsel. He did not administer aptitude or
achievement tests.

[75]        
Dr. Powers testified that given her medical condition, Ms. Ortega
was not likely to be competitively employable in alternate employment unless
she experienced a significant improvement in her medical condition.

[76]        
Dr. Powers recommended provision be made for the services of a vocational
consultant for vocational rehabilitation at a cost of $100 per hour. A
vocational consultant would assist in such matters as “mining employment leads”
as well as interviewing and negotiation preparation. A vocational consultant
could also provide education, monitoring and mentoring to Ms. Ortega at the
work site.

PETA Consultants Ltd.

[77]        
Mr. Darren Benning, an economist with PETA Consultants Ltd., prepared
a report containing an estimate of Ms. Ortega’s past and future income had no
accident occurred. This calculation was based on the incomes earned in
employment positions identified by Dr. Powers to be comparable to Ms. Ortega’s
occupation (Dry Cleaner Machine Operator and Front End Clerk). The average full
time, full-year earnings of these positions for foreign-born females in British
Columbia were calculated based on 2006 Census and Statistics Canada Labour
Force Survey data. These positions were also computed with various retirement
age scenarios, based on Statistics Canada 2000 – 2002 Life Tables data for
British Columbian females.

[78]        
The report opines that without the accident, Ms. Ortega would have earned
$114,124 in the Dry Cleaner position and $125,712 in the Front End Clerk
position from the date of the accident to the date of trial had she been
employed in these employment categories.

[79]        
Mr. Benning also provided figures for loss of future income from
the date of trial based on various retirement age scenarios.

ASSESSMENT OF DAMAGES

 Non-pecuniary damages

[80]        
The principles to be considered and the factors that will influence an
award of non-pecuniary damages were set out by Madam Justice Kirkpatrick in the
oft-cited case Stapley v. Hejslet, 2006 BCCA 34 (Stapley). She
created a helpful, non-exhaustive list of factors that will be taken into
account for determining the appropriate award. These factors include the age of
the plaintiff, the nature of the injury, the severity and duration of the pain,
disability, emotional suffering, loss of impairment of life, the impairment of
family, marital and social relationships, the impairment of physical and mental
abilities, loss of lifestyle and the plaintiff’s stoicism (at para. 46).

[81]        
Other factors may be considered in view of the particular circumstances
of each case. While reference to other cases is useful as a guide to the court for
the assessment of damages, non-pecuniary damages must be determined in each
case based upon its unique circumstances.

[82]        
The plaintiff seeks $120,000 in non-pecuniary damages, relying on Stapley;
Grigor v. Johal, 2008 BCSC 1823; Slocombe v. Wowchuk, 2009 BCSC
967; Ayoubee v. Campbell, 2009 BCSC 317; Smaill v. Williams, 2010
BCSC 73; and MacKenzie v. Rogalasky, 2011 BCSC 54.

[83]        
The defendant argues that an award of $50,000 is a more appropriate figure,
relying on Stapley; Prempeh v. Boisvert, 2012 BCSC 304 (Prempeh);
Eng v. Titov, 2012 BCSC 300; and Sylte v. Rodriguez, 2010 BCSC 207.

[84]        
I have reviewed the authorities cited by both counsel and I have found
them helpful in resolving this matter. However, as I already noted above, each
case must be decided on its own unique facts.

[85]        
Ms. Ortega has suffered significant injuries to her mid and lower back
and to her neck and shoulders. Her ongoing back pain is likely aggravated by
pre-existing problems in her lumbar spinal area.

[86]        
Her injuries have significantly impacted her ability to perform at work.
She is unable to complete tasks that she did before the accident and there are
other tasks that take longer to complete. She is unable to work the long hours
she once worked before the accident.

[87]        
Her injuries have also interfered with her enjoyment of life. She is now
unable to dance or take long walks.

[88]        
I find it likely Ms. Ortega will be troubled by ongoing pain in the
future and that she will be restricted in her work hours (as compared to her
former 12 hour work days). The conditioning programs and treatment recommended
by her care givers are intended to assist her in pain management. According to Dr. Caillier,
this treatment will ultimately enable her to undertake some of the tasks she
presently cannot perform.

[89]        
I award non-pecuniary damages in the amount of $80,000.

 Loss in earnings
to date of trial

[90]        
The plaintiff’s claim for lost earnings to the date of trial is based on
an assessment of the rates of pay for the two comparable positions of Dry
Cleaner and Laundry Machine Operator and Front End Clerk outlined in Mr. Benning’s
report.

[91]        
Counsel for Ms. Ortega submits that her damages for lost earnings should
be based on the market value for rate of pay earned in those comparable positions.
In other words, the Court should assess the number of hours lost per week and
assess that loss based on estimated earnings for these positions.

[92]        
Counsel for Ms. Ortega also argues the Court should take into consideration
that Black Swan pays $13.50 per hour to workers hired to compensate for Ms.
Ortega’s disability. The estimated loss in earnings to the date of trial is $124,000.

[93]        
The defendant says the plaintiff has failed to establish that she is
entitled to a claim for lost earnings. The defendant points to a number of
factors in support of this argument. First, the defendant draws attention to
the fact that Ms. Ortega has continued to work at Black Swan since the accident.
Over this time period, the business has continued to increase its sales.
Moreover, the defendant argues the evidence does not prove any additional
employees were hired as a result of her injuries.

[94]        
The defendant relies on Rowe v. Bobell Express Ltd., 2005 BCCA
141. The Court of Appeal made the following observations with respect to lost
earnings:

[28]      On the
question of the appropriate valuation of the lost asset, the Chief Justice
turned to academic commentary:

49        As Cooper-Stephenson notes, supra,
[Kenneth D. Cooper-Stephenson, Personal Injury Damages in Canada, 2nd
ed. (Scarborough, Ont.: Carswell, 1996)] at p. 138, damages under this head are universally quantified
on the basis of what the plaintiff would have earned, had the injury not
occurred.

As far as concerns lost income, the courts
fluctuate between the notion of "loss of earnings" and "loss of
earning capacity", not for the most part intending any aspect of the
substance of an assessment to depend on the particular wording, since damages are
universally quantified on the basis of what the plaintiff would have,
not what he or she could have, earned absent the injury.

[29]      She
concluded,

50        These damages are not, then,
based on a fixed value that has been assigned to an abstract capacity to earn.
Rather, the value of a particular plaintiff’s capacity to earn is equivalent
to the value of the earnings that she or he would have received over time, had
the tort not been committed. It follows that the loss of this value – the
loss that the plaintiff has sustained, and that the damage
award is intended to compensate for – should be treated as a loss sustained
over time, rather than as a loss incurred entirely at the time that the tort
was committed. …

[30]      Thus,
in my view, a claim for what is often described as “past loss of income” is
actually a claim for loss of earning capacity; that is, a claim for the loss of
the value of the work that the injured plaintiff would have performed but was
unable to perform because of the injury.

[31]      Evidence
of this value may take many forms. As was said by Kenneth D. Cooper-Stephenson
in Personal Injury Damages in Canada, 2nd ed. (Scarborough, Ont.:
Carswell, 1996) at 205-06,

…The essence of the task under this head
of damages is to award compensation for any pecuniary loss which will result
from an inability to work.  “Loss of the value of work” is the substance
of the claim – loss of the value of any work the plaintiff would have done but
for the accident but now will be unable to do.  The loss framed in this
way may be measured in different ways.  Sometimes it will be measured
by reference to the actual earnings the plaintiff would have received;
sometimes by a replacement cost evaluation of tasks which the plaintiff
will now be unable to perform; sometimes by an assessment of reduced company
profits; and sometimes by the amount of secondary income lost, such as shared
family income. …

[Emphasis in original.]

[95]        
These reasons establish a flexible approach to how loss of earnings are
measured.

[96]        
In determining the value of the earnings Ms. Ortega would have received
had the accident not occurred, I find that it is inappropriate to simply apply
a labour market rate to Ms. Ortega’s lost wages, as proposed. She did not work
for a market wage or in a general labour market. Ms. Ortega chose to work with Mr. Pena
in a family enterprise she helped create. Accordingly, her loss must be
assessed in the context of what she would have earned as an equal partner in
Black Swan.

[97]        
The assessment of the plaintiff’s loss for past lost income (and also
for loss of future earning capacity visited below in these reasons) is
difficult for a number of reasons.

[98]        
First, I note that Ms. Ortega and Mr. Pena began their dry cleaning
business only a year and a half before the accident. They invested most of
their assets into their business. It grew over time but it suffered a setback
when a competitor opened in the neighbourhood. The competitor has now closed and
the business has slowly resumed its upward trend. When I refer to growth, I
mean sporadic growth ─ sales have risen substantially in some years and
fallen in others. The general trend, however, has been demonstrably upwards. Gross
sales have risen from $124,200 in 2006 to $160,800 in 2011. In 2010, gross
sales exceeded $181,000. Net income has risen from $23,380 in 2007 (there was a
net loss in 2006 of $53,700) to $30,000 in 2011.

[99]        
In view of the list of employees or subcontractors employed as well as payroll
expenses incurred since 2006, it is difficult to tell precisely what impact Ms.
Ortega’s injuries have had on Black Swan’s growth and its revenue. Nevertheless,
based on the evidence of both Ms. Ortega and Mr. Pena, I accept that Black
Swan has hired additional labour to handle heavier work, including pressing,
lifting, bagging and tagging laundry, tasks which Ms. Ortega can no longer
perform. These employees also cover time periods where Ms. Ortega is unable to
work. This evidence is corroborated by Ms. Manvijar’s testimony as well as
the assessment conducted by Mr. Kai.

[100]     I
am also mindful that Ms. Ortega’s limitations have placed an added workload
burden on Mr. Pena, who might otherwise be involved in further expanding Black
Swan’s business. .

[101]     I am
satisfied on the evidence before me that Ms. Ortega, as a partner in Black Swan,
has suffered a loss in her net income arising from the injuries she sustained
in the motor vehicle accident. The evidence strongly suggests that she is and
has been functionally incapacitated as a result of the accident, which in turn
has prevented her from performing the tasks she used to complete.

[102]     In essence,
the entire enterprise has been impacted because one of its vital members has
been physically injured by this motor vehicle accident.

[103]      As
stated, a labour market rate is more relevant in assessing the cost Black Swan incurred
hiring persons to compensate for the work Ms. Ortega was unable to perform. However,
I also note that Black Swan is not a static business. As stated, the evidence
suggests it has grown and some of the additional labour expense clearly resulted
from such growth. In addition, it is evident that Ms. Ortega has been remunerated
to a large degree by her “sweat equity” ─ investing her efforts into the
building of the business  with Mr. Pena.

[104]     After
reviewing all the above factors, I assess Ms. Ortega’s loss of income from the
date of the accident to the date of trial at $8,500 per year. This amounts to
$52,250.

 Loss of future earning capacity

[105]    
The plaintiff’s claim for loss of future earning capacity is also based
on an assessment of the rates of pay for two comparable positions in
Mr. Benning’s report.

[106]    
The principles applicable to assessing damages under this heading were recently
summarized in Parker v. Lemmon, 2012 BCSC 27 as follows:

[42]      The approach to such
claims is well set out in the decision of Garson J.A. in Perren v.
Lalari, 2010 BCCA 140 at paras. 25-32, which I summarize as
follows:

(1)        A plaintiff must first prove
there is a real and substantial possibility of a future event leading to an
income loss before the Court will embark on an assessment of the loss; 

(2)        A future or hypothetical
possibility will be taken into consideration as long as it is a real and substantial
possibility and not mere speculation;

(3)        A plaintiff may be able to
prove that there is a substantial possibility of a future income loss despite
having returned to his or her employment;

(4)        An inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss;

(5)        It is not the loss of earnings
but rather the loss of earning capacity for which compensation must be made;

(6)        If the plaintiff discharges the
burden of proof, then there must be quantification of that loss;

(7)        Two available methods of
quantifying the loss are (a) an earnings approach or (b) a capital asset
approach;

(8)        An earnings approach will be
more useful when the loss is more easily measurable;

(9)        The capital asset approach will
be more useful when the loss is not easily measurable.

[107]    
This list was referred to recently in Buttar v. Brennan, 2012
BCSC 531 at para. 60.

[108]    
Since the course of future events is unknown in this case, the Court
must make an allowance for the contingency that the assumptions upon which the
award is based may prove to be wrong, a principle that was established in Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 93.

[109]     Counsel
for Ms. Ortega argues that her physical disabilities and diminished working
capabilities have persisted for the past five and a half years, with no signs
of relenting. On this basis, it is inferred that her disability will continue
to cause her pain and impede her working abilities for the rest of her life.

[110]     The
plaintiff suggests an award of $400,000 would be reasonable compensation for
loss of future earning capacity.

[111]     The
defendant argues that the only real risk to Ms. Ortega’s future earning
capacity is the failure of Black Swan or Mr. Pena’s inability to continue
the business, which the defendant says are both unlikely events. The defendant
submits that an award of $50,000 is sufficient to compensate for these “remote
possibilities”.

[112]     In my view,
it is appropriate to use the income approach to assess Ms. Ortega’s loss of
future earning capacity. In using that approach, I do not consider it
appropriate, for the reasons set out above, to measure damages based on comparable
market rates. Rather, I propose to base my award on Ms. Ortega’s earnings as an
equal partner in Black Swan with Mr. Pena.

[113]     In my view
it is reasonable to assume, based on the medical evidence tendered, that if Ms. Ortega
undertakes the treatment recommended by Dr. Caillier, she will be able to
function at least at her present level.

[114]     Ms. Ortega
was aged 50 at the time of trial. She will likely be able to continue to work
at Black Swan until her retirement which I find  to be reasonably set at 70 as
opposed to 65 years of age. She likely has at least 20 more years of working
life ahead of her. I also find, based on Dr. Caillier’s opinion that her current
level of functionality will likely remain relatively stable at minimum if she reconditions
herself over the next several years. Dr. Smit is somewhat less optimistic. He
was of the view Ms. Ortega was at risk of developing premature degenerative
changes in her right hip within the next ten to fifteen years.

[115]     However, I
am also mindful that she has a pre-existing condition which was aggravated by
the accident. It is possible that pre-existing condition could have a negative
impact on Ms. Ortega’s ability to perform her current job at Black Swan.

[116]     Ms. Ortega’s
physicians are in agreement she is not likely to become pain-free, which may
very well impact her earning capacity in the future.

[117]     I agree
with counsel for the defendant that it is unlikely Black Swan’s business will
fail.  The business has survived a competitor and has continued to grow.

[118]     In my view,
Ms. Ortega’s loss of future income must be measured by the loss of her
contribution to Black Swan because of her diminished work capacity.  The best
measure of the amount of that loss is the income lost to her from her share of
the net profits as a result of the necessity to hire labour to perform the many
tasks she performed prior to the accident but which she can no longer do and
which she will not be able to do in the future. After considering these factors
together, I award Ms. Ortega $150,000 for loss in future earning capacity.

 Loss of housekeeping capacity

[119]     Mr. Pena
and Ms. Ortega live in a three bedroom and one bathroom duplex with their two
children. Mr. Pena and the children now assist in housecleaning.

[120]     Dr. Caillier
was of the view Ms. Ortega needed help with the more physically demanding
household tasks. She suggested outside housekeeping assistance be sought two
hours every two weeks if Ms. Ortega was not receiving assistance from her
husband and daughters.

[121]     Counsel
for Ms. Ortega suggests an award in the amount of $25,338 for loss of
housekeeping capacity, utilizing the multiplier provided by Mr. Benning.

[122]     Counsel
for the defendant argues there should be no award under this damage heading as
the amount of loss is “not sufficient to justify a separate award”. Instead,
the defence argues the Court should increase the non-pecuniary damages to
account for loss of housekeeping capacity.

[123]     Damages
may be awarded for loss of housekeeping capacity even if the plaintiff has not
incurred any actual expenses for hired services: see Dykeman v. Porohowski,
2010 BCCA 36 at para. 28; Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652
at para. 9; and Easton v. Chrunka, 2006 BCSC 1396 at para. 45.

[124]     In my view,
an award for loss of housekeeping capacity is warranted. Mr. Pena works
very long hours in his endeavours to make Black Swan  successful. Ms. Ortega’s daughters
may not always be available to assist in the cleaning of the duplex. However, I
find that two hours every two weeks is an excessive estimate for the amount of
time needed to undertake the heavier work that Ms. Ortega requires assistance to
complete. I would allow one-half that amount, awarding damages in the amount of
$12,500.

 Cost of future care

[125]     As
discussed in Prempeh, an award for cost of future case must be based on
medical evidence as to what is reasonably necessary to preserve and promote the
plaintiff’s mental and physical health. In assessing cost of future care, the
court should consider whether the plaintiff would likely use the items or
services in the future.

[126]    
Also, I note that Madam Justice Dardi in Prempeh observed that
this assessment is not a precise exercise:

[108]    The assessment of
damages for cost of future care necessarily entails the prediction of future
events: Courdin v. Meyers, 2005 BCCA 91 at para. 34; Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205 at para.
21. The courts have long recognized that such an assessment is not a precise
accounting exercise and that adjustments may be made for "the contingency
that the future may differ from what the evidence at trial indicates": Krangle
at para. 21; X. v. Y. at [para.] 267. The extent, if any, to which a
future care costs award should be adjusted for contingencies depends on the
consideration of the specific care needs of the plaintiff and the expenditures
that reasonably may be expected to be required – taking into account the
prospect of any improvement in the plaintiff’s condition or conversely the
prospect that additional care will be required: O’Connell v. Young, 2012
BCCA 57 at paras. 67-68; Gilbert v. Bottle, 2011 BCSC 1389 at para. 253.

[127]     I am
satisfied in this matter that I should allow some of the recommendations made
by Mr. Kyi and Dr. Caillier, with certain noted exceptions. I award:

1.     annual
physiotherapy costs for life;

2.     cost of a
trainer for an initial session with cost for follow-up six times a year for two
years;

3.     cost for annual
gym membership for five years; and

4.     costs for back
support, an orthopedic pillow and an ergonomic sit stand stool (including
renewal costs).

[128]     These
costs amount to $9,580.

[129]     In
addition, I accept Dr. Caillier’s recommendation that Ms. Ortega should be
assessed at a pain clinic and that she should take a five week program with
follow-up assessment. The cost of this program and assessment together amounts
to $16,880.

[130]     In my view
the above expenses are required to facilitate Ms. Ortega’s maximum recovery.

[131]     I do not
accept Dr. Powers’ recommendation that Ms. Ortega undertake vocational
counselling as I am of the view that this would be of little practical
assistance to the plaintiff. If she is able to work she is likely to work for
Black Swan. If Black Swan fails, I am satisfied Ms. Ortega will use her own
initiative to find suitable alternative employment.

[132]     Ms. Ortega
is entitled to recover $26,460 for cost of future care.

 Special damages

[133]     The
plaintiff claims $3,948.95 in special damages. The defendant admits this amount,
excluding the $825 incurred for return airfare to El Salvador for the MRI as
well as the cost for an MRI performed on the right hip on May 24, 2012. The
defendant argues the trip to El Salvador is not directly connected to the
accident; this cost should be borne by the plaintiff. The defendant says the
latter MRI was “too far removed” from the accident and it revealed no related
injury.

[134]     Ms. Ortega
testified she travelled to El Salvador to get medical attention because she did
not accept the opinion of her attending general practitioner that her pain
would retreat over time if she continued to work. She testified she was in a
great deal of pain at the time and that she needed “to find out what was going
on”. She believed she could find a doctor in El Salvador who would be able to
discover the underlying problems causing her pain.

[135]     While it
is likely that Ms. Ortega felt much more comfortable talking to a physician in
her native language, I am of the view the cost of the air fare is not
recoverable. It is simply too remote a claim. Further, Ms. Ortega could have
changed physicians and/or taken steps to ensure that she had someone accompanying
her to translate her concerns.

[136]     I do find the
cost of the May 24, 2012 MRI is recoverable. One of her attending physicians
sent her for the MRI to determine the cause of her hip injury. It is therefore
connected to the accident.

[137]     I allow
special damages in the amount of $3,123.95.

 Failure to mitigate

[138]     The
defendant argues that any amount awarded to the plaintiff should be reduced
because she failed to mitigate her damages. Specifically, she failed to consult
a physician within the first month following the accident. Furthermore, she did
not comply with recommendations made in 2009 for her rehabilitation.

[139]    
The test for establishing the defence of mitigation is set out in Fox
v. Danis, 2005 BCSC 102 (Fox) (affirmed 2006 BCCA 324) at para. 37:

To
succeed in proving these submissions, the Defendants must establish, on the
balance of probabilities, that the Plaintiff failed to undertake this
recommended treatment; that by following the recommended treatment she could
have overcome or could in the future overcome the problems; and that her refusal
to take that treatment was unreasonable: Janiak v. Ippolito, supra
and Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.).

[Emphasis
in original.]

[140]     Ms. Ortega
first attended a physician on December 4, 2006, some five and a half weeks after
the accident. Like many people, she was tolerating her pain, hoping it would
lessen over time. She initially went to a walk-in clinic in Surrey where she
lived. She was prescribed medication. There is no evidence that she was told to
stop working at that time or that she was given any other recommendation which
she failed to follow. When she finally did consult her family physician, he
took x-rays. She understood his advice to be that she should continue working
as normal and that her pain would disappear over time.

[141]     I find
that Ms. Ortega did what many would have done in similar circumstances. She
stoically proceeded to go about her life, including her work, hoping that she
would recover . When she did get medical advice, it confirmed her belief that she
could expect to recover and that she should continue working. Later, when she
was advised to seek physiotherapy and to exercise, she followed that advice. She
went to a gym and exercised at home. Ms. Ortega did everything a reasonable
person would have done on the basis of the medical advice she received at the
time.

[142]     I find the
defendant has not established, as it must, failure to mitigate as established
in Fox.

Conclusion

[143]     To
summarize, I make the following award to the plaintiff:

 Non-Pecuniary Damages                       $80,000

 Lost earnings to date of Trial                  $52,250

 Loss of Future Earning Capacity            $150,000

 Loss of Housekeeping Capacity             $12,500

 Cost of Future Care                               $26,460

 Special Damages                                  $3,123.95

 Total Damages                                      $324,333.95

[144]    
The parties may file written submissions on costs if they are unable to
agree. Such initial submission must be filed within 30 days of the date on
which this decision is issued with a response to be filed within 14 days
thereafter.

“Greyell J.”