IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130128

Docket: M133035

Registry:
New Westminster

Between:

Terri Lea Brown

Plaintiff

And

James Leonard
Raffan and

Matcon Excavation
and Shoring Ltd.

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, Terri Brown, was injured in a motor vehicle accident that
occurred in Maple Ridge, B.C. on March 9, 2009. Liability has been admitted by
the defendants. This action concerns Ms. Brown’s claim for damages arising
out of her injuries sustained in the collision.

[2]            
Ms. Brown claims damages for non-pecuniary loss, past loss of
earnings and earnings capacity, loss of future earning capacity, cost of future
care, and special damages.

[3]            
Specifically, the plaintiff claims damages as follows:

a.              
Non-pecuniary damages – $65,000 – $80,000 or higher;

b.              
Past loss of earning capacity – $52,500;

c.              
Loss of future earning capacity – $67,500;

d.              
Loss of housekeeping capacity – $25,000 – $30,000;

e.              
Cost of future care – $20,000; and

f.               
Special damages – $2,500.

[4]            
The position of the defendants is that the plaintiff should be awarded
non-pecuniary damages in the range of $10,000 – $20,000, and that no other
damages have been established by the plaintiff. The defendants also submit that
the plaintiff has failed to mitigate her injuries and losses. The defendants
submit that the plaintiff’s award for non-pecuniary damages and for loss of
future earnings capacity, if any such any award is made, should be reduced for
failure to mitigate.

II.              
Facts

A.             
Pre-Accident

[5]            
Ms. Brown was 44 years of age when the accident occurred on March
9, 2009. Presently she is 48 years of age.

[6]            
She grew up in Fort St. John, B.C. As a child she was the victim of an
abusive older brother. Her brother shot her in the neck when she was four years
of age, resulting in the loss of a lung, and a delay in school entry. She began
school at age 7. On another occasion her brother pushed her causing her to hit
her head on a dresser, resulting in permanent scars to her forehead. Her
brother was also responsible for injury to her right eye, which she hit on a
fish tank, resulting in permanent scarring.

[7]            
She started working at age 13 as a waitress at a truck stop, for minimum
wage and tips. She left home just before her 17th birthday, in order to escape
the abusive circumstances involving her brother.

[8]            
She married at age 18 and was pregnant at the same age. She has one
daughter, who is now an adult and has two young children. Ms. Brown’s
daughter and grandchildren reside in Mission, as does Ms. Brown.

[9]            
When the accident occurred Ms. Brown was recently separated from
her husband. She left her husband in December 2008, three months prior to the
accident, because, she says, her husband was abusive towards her. She testified
that the abuse was mainly verbal, although on three occasions the abuse was
physical. On the final occasion of physical abuse she left the matrimonial home
on Cedar Street in Mission. She moved into a rented basement suite in Mission.

[10]        
Ms. Brown provided little detail as to her employment history in
her testimony. She testified that from 1991 to the end of 2002 she and her
husband operated a business in small engine repairs and equipment rentals. No
detail was provided as to what happened with the business. In 2006, 2007 and up
to July 15, 2008, she worked at a corner store, The Ware Food Market. She also
worked with her husband at the Abbotsford flea market on Sundays. The store
work paid slightly above minimum wage, at $11.75 or $12 per hour. She gave no evidence
and provided no records relating to her pre-accident earnings at the flea market.
There are also no employment records relating to her work at the food market,
other than her tax returns from the years 2006 through 2008.

[11]        
Several months prior to the accident, on June 4, 2008, she was seen and
treated at her family doctor’s clinic as a result of her former husband kicking
her in the back (posterior rib cage) area.

[12]        
A few weeks later, on July 15, 2008, she quit the job at the food market.
In her testimony she provided no specific reason for quitting that job. She simply
said that she needed time to think about where her life was going.

[13]        
After leaving her husband in December 2008, she resided in a rented
basement suite. One month prior to the accident she was forced to leave her
rented basement suite, for some reason that is not clear on the evidence. She
sought shelter in the home of Mr. Alf Racz, a friend that she knew from
the flea market. Mr. Racz took her in, initially pursuant to an
arrangement calling for her to pay $300 per month rent. She was driving Mr. Racz’s
vehicle when the accident occurred. The plaintiff testified that she was not
able to pay rent to Mr. Racz due to the accident injuries. She continues
to reside with Mr. Racz currently, although she has not paid rent since
the very first month that she resided in his home.

[14]        
She testified that at the time of the accident she was working an as
independent contractor for the Opportunities for the Disabled Foundation
(“OFTDF”). She testified that she obtained this work two and a half months
prior to the motor vehicle accident, or in other words in or about December
2008. She testified that she was responsible for picking up cases of chocolate
bars from a warehouse and distributing them to various retail locations.

[15]        
The plaintiff contends that the accident injuries have prevented her
from returning to work at OFTDF, or otherwise.

[16]        
The defendant disputes that the plaintiff has established that she was
employed at OFTDF, noting that despite several requests by ICBC, the plaintiff
never produced any records confirming this employment or the income received.

[17]        
Ms. Brown testified that she was generally healthy and vigorous
prior to the accident. However, she had been previously diagnosed with severe
scoliosis (curvature of the spine). She was missing one lung. She also has Chronic
Obstructive Pulmonary Disease (COPD). COPD involves restriction of the airways
of the lungs. Her General Practitioner, Dr. Morgan Campbell, testified
that COPD is a progressive disease usually associated with cigarette smoking.
Ms. Brown continues to smoke but she testified that she is trying to quit
and is now down to five cigarettes per day.

[18]        
Prior to the accident she regularly took medication for her COPD and for
a low thyroid condition caused by her neck injury as a child.

B.             
The Accident

[19]        
On March 9, 2009 Ms. Brown was driving a 1992 Ford Aerostar minivan
northbound on Wilson Road in Maple Ridge. As noted, the minivan was owned by
Alf Racz, who was a passenger in the vehicle at the time of the collision. The
defendant James Raffan’s vehicle, a pickup truck, was attempting to pass
southbound vehicles. There was insufficient room and Mr. Raffan’s vehicle collided
with the northbound vehicle operated by the plaintiff. The left front area of
the defendant’s vehicle hit the left front of the minivan driven by the
plaintiff.

[20]        
The photographs of the Ford Aerostar driven by the plaintiff show
substantial front end damage. The driver’s door needed to be removed in order
to extricate the plaintiff from the vehicle.

[21]        
She was taken to Mission Memorial Hospital for treatment and discharged
after about two and a half hours. X-rays taken at the hospital of her skull,
left knee, and cervical spine were all considered normal.

[22]        
Ms. Brown testified that she hit her head and her knees on the
interior of the vehicle, and that she sustained a wrenching injury to her right
shoulder. She testified that she sustained severe lacerations in the area of
her right eyebrow, and a bump on her head. There was some bleeding.

[23]        
In her testimony the plaintiff said she was not too sure if she lost consciousness
at the scene. As noted by Dr. Campbell in his report, the hospital records
indicate no loss of consciousness at the scene. On the evidence, then, I find
that the plaintiff did not lose consciousness as a result of the accident.

C.             
Post-Accident Condition of the Plaintiff

[24]        
The plaintiff contends that she is permanently partially disabled as a
result of the injuries she sustained in the accident.

[25]        
The plaintiff testified that prior to the accident she was capable of
working 10 hours per day, seven days per week at The Ware Food Store, as well
as working at the flea market on Sundays. With respect to OFTDF, she testified
that she could lift the boxes of chocolate bars weighing 20 to 25 lbs each, and
she could load 25 boxes of chocolate bars into her vehicle for distribution to
the retail sites required for her OFTDF work. She testified that she did the
bulk of the domestic chores during her marriage, including laundry, cleaning,
yard work and cooking.

[26]        
The plaintiff says that, post-accident, she and Mr. Racz share the
domestic duties more or less equally. However, neither of them are well, and
the work gets done by “whoever has the energy.” In general, she says, “not much
gets done.”

[27]        
She testified that prior to the accident she enjoyed horseback riding,
reading, walking, and driving. Since the accident she testified that she has
given away her horse, is able to walk only a limited distance, drives only when
necessary, and has difficulty reading due to blurring in her eye. She says that
her relationship with her grandchildren has suffered.

[28]        
She saw both Dr. Campbell and ICBC on March 11, two days post
accident.

[29]        
When she saw ICBC she said that she had a black right eye, a cut on her
right eyebrow, swelling on the right side of her forehead, a bump on the back
left side of her head, bruises to her hips and her left thigh, a large cut on
her left knee, and that both knees hurt.

[30]        
According to Dr. Campbell’s medical-legal report, on her first
visit post-accident on March 11, 2009, he observed extensive bruising in the area
of her right eye, and a hematoma on the right frontal forehead. He noted
complaints of pain in the cervical spine, with muscle spasm and rigidity, left
occipital swelling, and complaints of bilateral shoulder pain, with severe pain
in the right shoulder on movement. However her left shoulder was normal. He
noted a large bruise on the left forearm, a large bruise on the left knee,
swelling of the knee, and pain in the left knee on movement. The right knee was
stable with no findings on examination. She had diminished range of motion in
the lower back. There were no peripheral neurological complaints. He found no neurological
signs or symptoms.

[31]        
Dr. Campbell diagnosed: possible whiplash injury of the cervical
spine; possible moderate concussion; acute stress disorder; left knee impact
injury, strain and contusion; right shoulder strain (possible rotator cuff
tear); and a right eye peri-orbital contusion. Ms. Brown was advised to
begin gentle physiotherapy and, if possible, seek psychological debriefing therapy.
She was advised to use analgesic medication and to take time off work.

[32]        
At trial, Ms. Brown testified as to the following injuries caused
by the accident:

1.              
Severe lacerations on the right eyebrow;

2.              
Bump on head;

3.              
Right shoulder wrenched forward;

4.              
Both knees – lacerations and swelling;

5.              
Bleeding (unspecific, but I believe she was referring to bleeding in the
area of her knees, where she sustained lacerations);

6.              
Upper teeth pain, and breakage of her dental plate, which was not
replaced for 1 ½ years post accident;

7.              
Weight loss, and loss of muscle mass and strength. (She testified that
her weight pre-accident was in the range of 115 to 118 lbs, and that post-accident
her weight at the lowest was 89 lbs, but has now recovered to about 116 lbs.)

8.              
Exacerbation of difficulties breathing that she had pre-accident;

9.              
Scarring on the right elbow;

10.          
Scarring on both knees;

11.          
Numbness in the area around the right eyebrow;

12.          
Injury to right shoulder; and

13.          
Difficulty sleeping, depression, fear of driving.

[33]        
At trial, Ms. Brown testified that her complaints are as follows:

1.              
Frequent headaches, ranging from mild to severe, on the right side of the
head in the area of the eye;

2.              
Occasional blurry vision, causing her to blink frequently when reading
or driving;

3.              
Light-headedness;

4.              
Continued anxiety and fear of driving;

5.              
Right shoulder – all but completely healed. Pain is now “a twinge” once
in a while;

6.              
Right knee, much improved, but occasional knee pain; and

7.              
Exacerbation of pre-existing breathing difficulties.

[34]        
The plaintiff testified that she tried to return to work at OFTDF on “three
or four occasions in late May or early June 2009”, but she could not do the
work. She found that she could not lift the boxes and she was unable to do the
driving. However, according to her statements to Dr. Campbell as recorded
in his report, her post-accident work was somewhat more extensive than she
indicated at trial. According to Dr. Campbell’s report, on May 12, 2009
she related that she was trying to get back to work at her previous job three
days per week. His report indicates that on July 14, 2009, she related that she
was back at work part-time, but finding it difficult due to neck pain, right
shoulder pain, fatigue with difficulty concentrating, and periods of confusion.
However, Dr. Campbell’s clinical note of July 28, 2009 records that she is
“not working delivery – work ran out.”

[35]        
For reasons that are unexplained, the plaintiff produced no verifiable
records or other evidence regarding her OFTDF work, either pre or post accident.

[36]        
According to Ms. Brown, other than her attempts to return to the
OFTDF work, the only work that she has done since the accident has been to
assist Mr. Racz at the flea market on Sundays. There is no evidence of any
other efforts to obtain work post-accident.

[37]        
She continues to reside with Mr. Racz. She testified she paid Mr. Racz
rent for the first month that she resided with him, only. She was unable to pay
any rent after the accident forced her to discontinue her work. She testified
that her arrangement with Mr. Racz was that her work at the flea market
would be set off against her rent obligation. However, in cross-examination she
said that she really did not really “work” at the flea market post accident,
she just “helped here and there”, for no pay, and in lieu of rent.

D.             
Assessment of the Evidence of the Plaintiff

[38]        
It appears that in many ways the plaintiff has had a hard life and it is
difficult not to feel a great deal of sympathy for her. However, my task is to
fairly assess the plaintiff’s claims, on the evidence, without being
inappropriately influenced by feelings of sympathy. The difficulty I have is
that much of the evidence relied upon by the plaintiff is not reliable, or is
entirely absent.

[39]        
In a case such as this, the credibility of the plaintiff’s evidence
concerning her injuries and their consequences is obviously central.

[40]        
Unfortunately, I did not find the plaintiff to be a reliable witness in general.
I will refer only to some of the matters that lead me to that conclusion.

[41]        
A central aspect of her claim is that she was generally healthy and
vigorous prior to the accident, as demonstrated, for example, by her capacity
to work long hours at the food market, and also at OFTDF. However I cannot
accept her evidence in relation to these matters.

[42]        
With respect to her work at the food market, Ms. Brown testified
that she worked there seven days per week,10 hours per day, or in other words
70 hours per week, before quitting the job on July 15, 2008. If true, it would
have been easy for her to prove this by documentary records, or failing that, by
calling a witness. However, as noted, she produced no pay stubs or other employment
records relating to her work at the food store. There was no witness testimony at
all concerning her pre accident employment, except to a very limited extent in
relation to her weekend work or assistance at the Abbotsford Flea Market. In
opening, I was advised that her former husband would be testifying, but he did
not testify.

[43]        
The only documentary records relating to the Plaintiff’s work at the food
store is found in her tax returns for 2006, 2007 and 2008. I accept these
documents as reliable evidence of her overall earnings in these years. No
documents indicate her rate of pay, but at trial Ms. Brown testified that
she earned in the range of $11.75 or $12 per hour at the food store. Her 2006
tax return shows earnings of $18,193.88 at the store. For 2007, her last full
year of employment at the store, the tax return shows earnings of $19,337. On
the basis of her stated hourly pay, her 2007 earnings would be the equivalent
of approximately 1,611 hours for the year, or 32.22 hours per week over the
course of 50 weeks, allowing for two weeks of vacation. In 2008 she earned
$12,147 prior to July 15. This would suggest that she was working in the range
of 36 hours per week. Whether these numbers are precisely accurate or not, I
conclude that in testifying that she worked 70 hours per week at the food store,
she was exaggerating substantially.

[44]        
I also cannot accept her testimony concerning her earnings and her work at
the OFTDF.

[45]        
As noted, she testified that she started this work two and a half months
prior to the motor vehicle accident. She testified that she was a “collector.”
Her job was to distribute boxes of chocolate bars to retail locations located
between White Rock and North Vancouver. Her testimony was vague, but she
testified that she did “50 collects in a day, and was paid $2 per box.” She
testified that she was paid in cash, once per week. As I understand her evidence,
she placed counter top boxes for point of sale purchase by customers who could
thereby support the work of the foundation.

[46]        
As noted, she testified that she tried to return to work for OFTDF post
accident but found that she was unable to cope. I took it that she meant that
she quit the job.

[47]        
Once again, her evidence as to her work at OFTDF could easily have been
corroborated by reference to appropriate third party employment documents and
records. However, none were adduced in evidence at trial, although the validity
of her wage loss claims was clearly going to be in issue at this trial.

[48]        
In her statement to ICBC on March 11, 2009 Ms. Brown stated that
she received base pay of $100 per day at OFTDF and was reimbursed for fuel and
other expenses. However, despite repeated requests, Ms. Brown never
produced any records supporting her income loss to ICBC.

[49]        
During cross-examination she was challenged in relation to her failure
to produce such records. Following a lengthy break in her testimony to allow
for the evidence of Dr. Campbell to be heard, Ms. Brown produced
records that she testified she prepared during the period January through March
2009, for submission to OFTDF, by fax. She was allowed to resume her testimony
in chief in relation to the OFTDF documents, and she was then cross-examined on
them.

[50]        
The records she produced were prepared by her, and are not verified in
any way. She testified that she was paid in cash. There are no records of
deposits, as she said she used the cash for expenses. There are no receipts for
any expenses. The records she produced provide no details concerning the
placements made. There are no records of any kind as to cash receipts, or
remittances to OFTDF. I never heard final submissions with respect to
admissibility of the records. However, even if they had been admitted into
evidence as exhibits, I am not satisfied that the OFTDF records the plaintiff
adduced are authentic, and I am not satisfied that they are reliable in any
sense. I place no weight on them whatsoever.

[51]        
The plaintiff testified that to the best of her knowledge, her OFTDF income
was reported to the CRA; however, the evidence does not support this. Again, after
being challenged on cross-examination, the plaintiff produced a form of tax
return for 2009 indicating “other income” of $4,676, which is stated on the
document to relate to contract work for OFTDF from January to March 9, 2009. The
return is unsigned, and there is no indication that it was ever filed. No
Notice of Assessment was produced. A letter from the CRA in evidence indicates
that the 2009 and 2010 income tax returns were not filed. Once again, I am not
satisfied that the so-called tax returns for 2009 and 2010 the plaintiff
produced on cross-examination are authentic, and I place no weight on them
whatsoever.

[52]        
The failure to prove that the OFTDF income was reported to the CRA
fortifies my conclusion that the plaintiff’s testimony concerning her OFTDF
earnings is not reliable.

[53]        
I also find it difficult to understand why the plaintiff was forced to seek
shelter with Mr. Racz in early February 2009 if she was making the kind of
income that she testified to.

[54]        
In the circumstances of this case, the fact that the plaintiff has
adduced no documentary or other corroborating evidence concerning her employment
with OFTDF or her income in that respect leads me to conclude that her earnings
are not as claimed.

[55]        
In that respect, the following principle as stated by Lord Mansfield in Blatch
v. Archer (1774), 1 Cowp. 63, 98 E.R. 969 at p. 970 is apt:

It is certainly a maxim that all
evidence is to be weighed according to the proof which it was in the power of
one side to have produced, and in the power of the other to have contradicted.

[56]        
There are also no records whatsoever relating to her post accident OFTDF
work. The plaintiff’s evidence that she tried to do the OFTDF work on three or
four occasions in late May or early June 2009 is not consistent with Dr. Campbell’s
record of her reports to him, which indicate that she was trying to work part-time
as of May 12, 2009, and was back at work July 14, 2009, but that as of July 29,
2009 the delivery work “ran out”. The inconsistencies in the evidence, coupled with
her failure to produce any records, further erodes my confidence in the
credibility of the plaintiff’s evidence and of her claims generally.

[57]        
I also do not accept the plaintiff’s evidence concerning the physical
nature of the work with OFTDF. She testified that the boxes of chocolate bars
weighed and 20 and 25 lbs each. I have no reliable evidence concerning that
point, and in my view, the plaintiff was likely exaggerating the weight of the
boxes.

[58]        
I accept, however, that the plaintiff was doing some kind of delivery
work for OFTDF. I have no reliable information as to the nature of that work or
of the plaintiff’s earnings in that respect. I do not have evidence that the
OFTDF work would have been available to the plaintiff following July, 2009.

[59]        
The plaintiff’s credibility as a witness is also diminished by my
assessment of her interactions with Dr. Campbell. In my view the plaintiff
misrepresented the facts concerning her dealings with ICBC to Dr. Campbell,
in order to gain his sympathy and support, and it appears to me that she
succeeded in doing so.

[60]        
The only medical-legal report in evidence is that of Dr. Campbell
dated March 15, 2012.

[61]        
The consistent theme of Dr. Campbell’s report is his acceptance of Ms. Brown’s
frequent complaints that ICBC failed to provide funding for appropriate
treatment and for income support.

[62]        
The validity of the plaintiff’s complaints regarding her dealings with
ICBC is relevant to my assessment of her credibility generally. In this
respect, I do not accept that Ms. Brown’s complaints as related to Dr. Campbell
about her mistreatment by ICBC are valid. Details of this are as follows:

1.              
According to Dr. Campbell’s report, on April 7, 2009 Ms. Brown
related that “ICBC was refusing to pay for her physiotherapy and she was very
angry about this”. This was only partially true. At trial the plaintiff
testified that ICBC was refusing to fund the upfront user fee portion of the
physiotherapy costs, of $20 per session, which she could not afford to pay.

2.              
On the April 14, 2009 visit, Dr. Campbell reports that Ms. Brown
told him that ICBC would not provide her with “financial support during the
period of disability”. However, ICBC repeatedly asked her to provide
documentary support for her wage loss claim, and did not receive it. Even at
trial, Ms. Brown did not provide adequate documentary support for her wage
loss claim, as I have noted.

3.              
Dr. Campbell indicates in his report that Ms. Brown needed
psychological therapy. However, there is no evidence of any report,
prescription, or request for such therapy to ICBC. Indeed, Dr. Campbell’s
CL19 medical report to ICBC dated February 18, 2010 (about one year post
accident) makes no mention of any psychological or psychiatric condition,
disorder, or need for treatment. The CL19 report refers only to the need for
physiotherapy and a referral to an orthopedic specialist, Dr. Bhachu, for
her shoulder complaints.

4.              
Ms. Brown reported to Dr. Campbell that ICBC was refusing to
replace her dental plate that was broken in the motor vehicle accident.
However, there is no evidence that ICBC refused or delayed payment for the
broken dental plate once a claim was made for it. Ms. Brown did not
mention the broken dental plate in her initial statement to ICBC. On February
8, 2010, ICBC wrote to Ms. Brown advising her to attend a denturist to see
about her cracked dental plate. ICBC subsequently paid for the replacement cost
of the dental plate.

[63]        
The plaintiff testified that she lost 25 pounds or more due to the
effects of the accident, and that her weight went down to 89 pounds before
rebounding. I accept that she lost weight, but in my view the degree of weight
loss was probably exaggerated. Dr. Campbell testified that her weight loss
was on the order of 10 to15 pounds. Dr. Campbell report states that she
weighs 102 pounds. Dr. Bhachu’s clinical note to Dr. Campbell
indicates a weight of 98 pounds in late 2009.

[64]        
Ms. Brown downplayed the effects of her pre-existing scoliosis and
COPD in her evidence. Her scoliosis was severe. She testified that her COPD was
only mild pre-accident, and that it was worse post-accident.

[65]        
In summary, for the reasons stated, in general I did not find the
plaintiff to be a credible witness.

E.              
Medical Evidence

[66]        
The plaintiff has continued to be treated by Dr. Campbell, who has
seen her more than 70 times since the accident. Unfortunately, in general, I do
not consider the evidence of Dr. Campbell to be reliable. There are
several reasons for this.

[67]        
Firstly, in my view, Dr. Campbell’s sympathy for his patient and her
claims has resulted in him becoming an advocate for the plaintiff.

[68]        
On reading his report and hearing his evidence, the theme that emerges
is one of solidarity by Dr. Campbell with Ms. Brown’s complaints
about lack of support from ICBC, and her plight as a blameless victim.

[69]        
At numerous instances in the report, Dr. Campbell relates Ms. Brown’s
complaints that ICBC failed to refuse to provide for interim wage loss
payments, or cost of treatment such as physiotherapy, psychological
counselling, or reimbursement for her broken dental plate. Although reciting
the plaintiff’s complaints in relation to ICBC might conceivably be relevant
background information, it is clear on the report and on Dr. Campbell’s
testimony as a whole that he shares his patient’s views that she is a blameless
victim of injustice who has been badly treated by ICBC, and, further, that she
deserves compensation.

[70]        
In the summary and opinion portions of his report, Dr. Campbell
mentions several times that Ms. Brown was “blameless” or “blameless
victim” in the motor vehicle accident. Such comments have no proper place in an
expert’s report, and indicate a conflict with the duty of an expert to assist
the court and refrain from being an advocate for a party as set out in Rule
11-2 of the Supreme Court Civil Rules.

[71]        
Dr. Campbell also mentions several times that the plaintiff has
been given no support or treatment by ICBC. These inappropriate comments are
thoroughly enmeshed in his report. I think it best to simply set out some
extracts of the report in this respect, in which I have emphasized the
offending material.

[72]        
The final portion of Dr. Campbell’s report is as follows:

Summary: Ms. Brown is a 47 year old
female patient. She has an ectomorphic body type and is very thin. She has
severe scoliosis. Ms. Brown was blamelessly involved in a
significantly violent motor vehicle accident on March 9th 2009.

Over the post motor vehicle accident period Ms. Brown
developed post concussion syndrome. Acute stress disorder. Major
depression/anxiety disorder. Cervical spine whiplash injury. Right shoulder
strain. Lumbar sacral back strain. Right knee strain. Ms. Brown did not
receive any ICBC support for her motor vehicle accident related injuries
and her treatment and progress was hindered significantly as a result of this
and progression of [her] motor vehicle accident diagnoses were affected
negatively. Her complaints and disabilities are now chronic.

Opinion: Ms. Brown was the blameless
victim of a significantly violet motor vehicle accident on March 9th 2009.
She was diagnosed with the following:

1.         Post concussion syndrome

2.         Acute stress disorder

3.         Major depression/anxiety disorder

4.         Cervical spine whiplash injury

5.         Right shoulder musculoskeletal
injury

6.         Left knee musculoskeletal injury

7.         Lumbar sacral back strain injury

In my opinion the period of her disability
related to the March 9th 2009 motor vehicle accident is appropriate and ongoing
in consideration of the diagnoses.

For reasons unknown to me Ms. Brown
was given no support for her motor vehicle accident related injuries by ICBC.

Prognosis: In
my opinion Ms. Brown was a blameless victim and sustained
significant physical and psychological injury/trauma in the March 9th 2009
motor vehicle accident as well as progression of her condition due to lack of
interventional psychological, medical and physical treatment. In my opinion,
given the type and now chronic status of Ms. Brown’s March 9th 2009 motor
vehicle accident injuries she will have permanent disability including signs
and symptoms of post brain concussion, neck post whiplash injury pain and
limitation of range of movement, right shoulder post soft tissue injury pain
and limited right shoulder range of movement and ongoing symptoms of major
depression/anxiety. In my opinion Ms, Brown will not be able to continue with
her pre March 9th 2009 employment and at best she may be able to do relatively
sedentary work. In my opinion this unfortunate accident and the lack of
appropriate and reasonable consideration and help has permanently adversely
changed and decreased the quality of Ms. Browns working and private life.
In my opinion she requires reasonable support for an indefinite amount of time
to get involved in physical therapy, medical therapy and psychological therapy
for the injuries that she sustained in the March 9th 2009 accident. In my
opinion she needs reasonable financial support and compensation for her
significant injuries and losses so that she can begin efforts to recover to
the extent that this is possible.

[Emphasis added.]

[73]        
The final sentence of the report could not make Dr. Campbell’s
position more clear.

[74]        
As noted, Dr. Campbell has seen the plaintiff post-accident 70 or
more times. She attends together with Mr. Racz, on a regular two week
cycle. Dr. Campbell did not suggest that there was any medical necessity
for the frequency of the visits. He testified that the recurring visits were arranged
by the patient. In relation to this, I concluded that the numerous visits with Dr. Campbell
had more to do with documenting a legal claim than with actual medical need.

[75]        
Secondly, Dr. Campbell’s report is incomplete, and is inconsistent
with his evidence at trial, in relation to the plaintiff’s pulmonary condition.
At trial, Dr. Campbell’s opinion is that Ms. Brown is permanently partially
disabled due to her accident injuries. Dr. Campbell’s report omits any mention
of the plaintiff’s pre-existing COPD or her pulmonary function, generally,
other than noting the loss of one lung as a child. In the context of this case,
it is a striking omission.

[76]        
At trial, on cross-examination, he was asked about a medical note that
he gave to the plaintiff to assist her with a claim for welfare benefits. The
note is dated August 24, 2010. It says that Ms. Brown “has severe COPD and
is unable to work for the foreseeable future”. No mention is made of the motor
vehicle accident. At trial he acknowledged that her COPD and lung issues affect
her ability to work.

[77]        
Dr. Campbell tried to explain his note, by stating that he wrote
the note before she saw a respirologist, Dr. Ervin, who according to Dr. Campbell
diagnosed “restrictive lung disease.” The clinical records of Dr. Ervin in
evidence are non-specific. The only diagnosis set out there is of “respiratory
complications, not elsewhere classified”. I was not able to discern how the
opinion of Dr. Ervin, whatever it was, explains the note.

[78]        
At trial, Dr. Campbell stated, on re-examination, that Ms. Brown’s
restrictive lung disease and COPD were made worse by the accident. As noted his
report does not mention COPD and sets out no opinion concerning the effects of
the accident on her lung function. Even if the opinion were admissible
notwithstanding lack of proper notice, I do not accept the opinion of Dr. Campbell
that Ms. Brown has restrictive lung disease which was exacerbated by the
accident.

[79]        
Thirdly, Dr. Campbell’s report and evidence at trial is not
consistent with his clinical records. Large parts of the report are unsupported
by contemporaneous notes in his clinical records. The report recites the
plaintiff’s complaints at length, in the description of her condition from time
to time, including direct quotes. Virtually none of this is found in his clinical
records. Dr. Campbell’s diagnosis as found in his clinical records is
generally simply “soft tissue injury”. The diagnosis set out in his report is
far more lengthy and detailed. Dr. Campbell’s clinical records end with a
visit January 26, 2010, although Ms. Brown has continued to see him many
times since then.

[80]        
Notably, Dr. Campbell states in his report that Ms. Brown
suffered from post concussion syndrome, acute stress disorder, and major depression/anxiety
disorder, but there is little if anything in his clinical records relating to
these conditions. At trial he said that he tends not to write anything in his
clinical records relating to depression, unless he is absolutely certain.

[81]        
In his report, Dr. Campbell indicates that on May 19, 2009 he
administered PHQ-9 and GAD-7 screening questionnaires, which were highly suggestive
of major depression/anxiety. She was given a prescription for antidepressants. However
Dr. Campbell’s clinical records do not contain the screening
questionnaires referred to. He was challenged on this point on cross-examination.
In response, he testified that the screening questionnaires were “formalized”
at a later time. Dr. Campbell then produced from his file screening
questionnaires administered more than a year later, on July 27, 2010. For
reasons unexplained, no such questionnaires were produced to counsel as part of
Dr. Campbell’s clinical records, thus there was no real possibility of
proper cross-examination on these records or this topic.

[82]        
In another case, the lack of contemporaneous notes or records in a
doctor’s clinical records might make little or no difference to my assessment
of the doctor’s credibility and reliability as a witness. However, in this case
the marked difference and inconsistency between Dr. Campbell’s
contemporaneous clinical records and his report fortifies my conclusion that Dr. Campbell’s
medical opinion is not reliable.

[83]        
In Dr. Campbell’s CL19 report to ICBC dated February 18, 2010 no
mention was made of any psychological effects of the accident. He diagnosed
soft tissue injuries of various kinds and “no hard findings”. He recommended
physiotherapy. He denied that there were any other medical conditions, non MVA
related, that cause or contributed to his patient’s inability to work. He
indicated that she was capable of carrying out her non-work activities. There
is no mention of COPD scoliosis or restrictive lung disease. While I recognize
the significant limitations of a CL19 report in terms of the amount of time a
busy doctor has to fill in the form, and the space available on the form, the
fact remains that Dr. Campbell’s CL19 report is markedly inconsistent with
his medical legal report and his evidence at trial.

[84]        
Fourthly, although Dr. Campbell diagnosed post concussion syndrome,
acute stress disorder, and major depression/anxiety disorder, he never referred
Ms. Brown for any therapeutic treatment or for any consultation in
relation to these conditions. He testified that he did not refer her to therapy
because she could not afford it. (His report indicates that he prescribed
anti-depressants May 19, 2009 but she said she could not afford them.) Later in
his evidence he acknowledged that in fact psychiatric treatment would have been
covered by the Medical Services Plan. Once again, in another case the lack of a
referral for treatment or for consultation with a specialist might mean little
if anything to my assessment of a general practitioner’s evidence. In my view, Brock
v. King 2009 BCSC 1179, (at para. 64-65) relied upon by the plaintiff,
was such a case. In this case, however, the lack of treatment or referral by Dr. Campbell
in relation to these conditions erodes my confidence is his diagnoses.

[85]        
Finally, like any other physician, Dr. Campbell must rely on the
validity of the patient’s information. As I have stated, I do not consider Ms. Brown
to be a reliable witness.

[86]        
In summary I conclude that, in general, I cannot rely upon the medical
report and opinion of Dr. Campbell.

[87]        
In 2009 Dr. Campbell referred Ms. Brown to an orthopedic
surgeon, Dr. Bhachu, for assessment of her right shoulder pain complaints.
In 2011 and 2012 she saw another orthopedic surgeon, Dr. Albert Chan, for
investigation of her right knee. According to Dr. Campbell, neither
surgeon observed any significant abnormalities or pathology. In 2012 she saw a
respirologist, Dr. F.L.C. Ervin. Dr. Campbell did not discuss this
referral in his report, and the clinical records in evidence are notably
incomplete.

[88]        
Ms. Brown has not had any physiotherapy treatment for her injuries.
She said that she could not afford to pay for physiotherapy. Although ICBC
agreed to fund physiotherapy, there was a user fee of $20 per visit which she
would be required to fund and she could not afford to do so.

F.              
Plaintiff’s Other Witnesses – Assessment

1.              
Mr. Alf Racz

[89]        
The plaintiff has resided with Mr. Alf Racz since seeking shelter
in his home in early February 2009. He testified that she told him that she was
locked out of her place by her landlord and had nowhere to stay. They agreed
that she would pay rent of $300 per month until she could find another place to
stay. She paid for the first month only and, according to Mr. Racz, has
been unable to pay since that time.

[90]        
Mr. Racz testified that prior to the accident she was outgoing,
personable, happy, hardworking, and industrious, with no notable disability. After
the accident, she has become a different person. She is depressed, weak, and
feels that everyone has turned their back on her. She feels let down and abandoned.

[91]        
He characterized their relationship as “landlord/tenant”; however, in my
view, that is not an accurate description of the relationship. On Ms. Brown’s
evidence, they clearly share domestic duties and cohabit together in a relationship
of some sort. Dr. Campbell referred to Mr. Racz as her “partner”
which indicates his impression of the nature of their relationship. Mr. Racz
accompanied her on her many visits to see Dr. Campbell.

[92]        
Mr. Racz was her passenger on the day of the accident, when she was
driving his vehicle. Since the accident Ms. Brown has assisted Mr. Racz
to some extent or other at the flea market on Sundays, as she formerly used to
do with her husband or now ex-husband Mr. Greg Brown. Mr. Racz
frankly admitted, in cross-examination, that, possibly, she owes him quite a
bit of money for “rent” and that he has a financial interest of the outcome of
the trial. He testified that he is also in circumstances of financial distress.
He was also very frank in testifying that he attended the trial in order to “stand
up for the rights of Terri Brown”, notwithstanding his own very recent
diagnosis of cancer and his own medical circumstances. He strongly believes
that Ms. Brown deserves a “fair settlement”, to which in his view “she is
entitled.”

[93]        
Although the frank nature of Mr. Racz’s testimony was admirable, in
view of his clear interest and bias I conclude that I must treat his testimony with
a great deal of caution, and in general I am not able to give it very much
weight.

2.              
Mr. Charles [Chuck] Hunniford

[94]        
Mr. Hunniford sells antiques at the Abbotsford Flea Market. He has
a permanent stall there. He has known Ms. Brown for more than 10 years as
a result of their association at the flea market. He described her personality
prior to the accident as being pleasant, upbeat, and he thought her health was
good, with no apparent disabilities. Following the accident, her health has
deteriorated. She doesn’t do much. She has aged terribly in the last few years,
he said. He noted that she has dropped a lot of weight. He acknowledged being
friends with Ms. Brown as well as Mr. Racz, who repairs his vehicle. They
have a cooperative arrangement between them in relation to sourcing merchandise
for the flea market. He feels compassion for Ms. Brown. He gives her
surplus merchandise that she can sell on her own account at the flea market.

[95]        
Mr. Hunniford is a pleasant person, but is biased in Ms. Brown’s
favour, and once again I must treat his evidence with caution.

G.             
Assessment – Plaintiff’s Injuries Sustained in the MVA, Condition at
Trial, and in Future

[96]        
The plaintiff is entitled to compensation which would, as far as money
is able to do so, put her back to her “original position” that she would be in
“but for” the injury. She is not entitled to be put in a better position: see Athey
v. Leonati, [1996], 3 S.C.R. 458, at paras. 32 and 35, where Major J.
states as follows:

[32]      To understand these cases, and to see why they are
not applicable to the present situation, one need only consider first
principles. The essential purpose and most basic principle of tort law is that
the plaintiff must be placed in the position he or she would have been in
absent the defendant’s negligence (the "original position"). However,
the plaintiff is not to be placed in a position better than his or her original
one. It is therefore necessary not only to determine the plaintiff’s position
after the tort but also to assess what the "original position" would
have been. It is the difference between these positions, the "original
position" and the "injured position", which is the plaintiff’s
loss. In the cases referred to above, the intervening event was unrelated to
the tort and therefore affected the plaintiff’s "original position".
The net loss was therefore not as great as it might have otherwise seemed, so
damages were reduced to reflect this.

…

[35]      The so-called
"crumbling skull" rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s "original position". The
defendant need not put the plaintiff in a position better than his or her
original position. The defendant is liable for the injuries caused, even if
they are extreme, but need not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have
experienced anyway. The defendant is liable for the additional damage but not
the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John
Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the overall
award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary
Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is
consistent with the general rule that the plaintiff must be returned to the
position he would have been in, with all of its attendant risks and
shortcomings, and not a better position.

[97]        
The difficulty that I have in this case is fairly assessing the
plaintiff’s “original position” pre accident and her “injured position” post
accident, given the difficulties and limitations in the evidence.

[98]        
As noted, prior to the accident the plaintiff had a thyroid condition,
was missing a lung, and was suffering from COPD and severe scoliosis. She was,
as Dr. Campbell noted, a frail person to begin with.

[99]        
Dr. Campbell testified that COPD is a progressive disease and that
it is associated with smoking, and that Ms. Brown has not quit smoking.

[100]     Dr. Campbell
began treating Ms. Brown in or about August 2007, about a year and a half before
the accident. In this period, he saw her only four or five times. There is very
little in Dr. Campbell’s pre-accident clinical records to indicate ongoing
problems, other than the plaintiff’s thyroid condition and her scoliosis. Other
prior medical records are not in evidence.

[101]     Based upon
the tax returns, prior to July 15, 2008 Ms. Brown was apparently capable
of working between 30 and 40 hours a week (approximately) at the food market. There
was no detail in the evidence concerning the nature of this work, but she must
have had a reasonable amount of stamina just in order to work an almost full
work week. However, no reasonable explanation was given for her departure from
this job, and there is no evidence as to the nature of the work or the
plaintiff’s ability to perform in the job.

[102]     As in any civil
trial, the onus is on the plaintiff to prove her case on the civil standard;
that is, on the balance of probabilities. In the context of a claim for damages
for personal injury, the plaintiff has the burden of establishing that she was
injured in the accident, and the extent of her injuries: F.H. v. McDougall,
2008 SCC 53, [2008] 3 S.C.R. 41 [McDougall], at para. 44; and Cahoon
v. Brideaux, 2010 BCCA 228, [Cahoon] at para. 82.

[103]     I accept
that the plaintiff was involved in a significantly violent motor vehicle
accident. There is clear evidence of significant acute injuries to Ms. Brown.

[104]     It is
clear that she suffered significant contusions and lacerations in the accident.
She suffered significant soft tissue injuries to her face, spine, right
shoulder and both knees. The blow to her face broke her dental plate. She had
upper teeth pain. In general, these have now resolved. There is no evidence of
ongoing pathology in these areas. There were no neurological consequences of
the injuries.

[105]     There was
also evidence that the plaintiff lost significant weight following the motor
vehicle accident, although not as much she said.

[106]     Currently
she is left with some scarring on her right elbow, and on both knees.

[107]     I accept
that the plaintiff suffered a concussion in the accident. I am not satisfied
that any significant sequalae have been established.

[108]     I do not
accept the opinion of Dr. Campbell that she suffered a “major depression” following
the accident.

[109]     I am not
satisfied that the plaintiff has proven any significant psychological injury.

[110]     However,
given the frailty of the plaintiff, I accept that her recovery from the soft
tissue injuries she sustained in the accident would be considerably prolonged
as compared with a more healthy and vigorous person. I accept that the
plaintiff’s injuries would have prevented her from being able to work or to
function normally in domestic or leisure activities for a considerable period
of time following the accident. I accept that the plaintiff was continuing to
suffer significantly from the ongoing effects of her injuries at the time Dr. Campbell
submitted the CL 19 report to ICBC about one year post-accident. In my view, a
generous finding is that the accident injuries caused the plaintiff to continue
to suffer significant consequences for a further year after that; in other
words, for about two years in total.

[111]     I find
that the plaintiff continues to suffer from the following conditions or effects
of injuries brought on by the motor vehicle accident:

1.       Headaches.
The frequency, severity and duration are unclear in the evidence;

2.       Anxiety
associated with fear of driving;

3.       Occasional
pain in the right knee; and

4.       Scarring
on her right elbow and knees.

[112]     There are
therefore some ongoing consequences of the accident injuries.

[113]     I am not
satisfied that the occasional blurry vision and the light-headedness the
plaintiff testified to are related to the accident. I am also not satisfied
that the accident caused exacerbation of her pre-existing breathing
difficulties.

[114]     The
plaintiff has not established on a balance of probabilities that her accident
injuries caused a presently continuing disability which interferes with her
ability to function at work, domestically, or in her leisure activities.

[115]     The
defendant argues that the plaintiff has failed to take reasonable steps to
mitigate her loss, by failing to attend physiotherapy as prescribed by Dr. Campbell
and by failing to exercise her right shoulder.

[116]     Dr. Campbell
recommended physiotherapy. I accept that physiotherapy could or might have been
beneficial. That was Dr. Campbell’s purpose in recommending it. I am not
satisfied that the defendants have established that the physiotherapy would
have been beneficial, or the extent to which the plaintiff’s damages would have
been reduced had she engaged in it.

[117]     The
defendant must do more than show that the plaintiff failed to engage in
treatment that could or might have been beneficial: Gregory v. ICBC,
2011 BCCA 144, at para. 56. The defendant has produced no medical evidence
to indicate that the extent to which the plaintiff’s damages would have been
reduced had she acted reasonably: see Wahl v. Sidhu, 2012 BCCA 111, at para. 32,
citing Chiu v. Chiu, 2002 BCCA 618.

[118]     Moreover,
the plaintiff testified that she did not attend physiotherapy because she could
not afford the $20 per session user fee. I accept this evidence. In my view, it
cannot be said that the plaintiff has acted unreasonably or failed to mitigate
by failing to pursue treatment which she has no means of funding, and which
ICBC has refused to fund.

[119]     The
defendants rely upon Smyth v. Gill, [1999] B.C.J. No. 983, 1999
Carswell B.C. 932 [Smyth], at para. 41, for the proposition that
“financial constraint is not an answer to failure to mitigate.”

[120]     In that
case, the court was satisfied that the plaintiff suffered from thoracic outlet
syndrome in her left arm caused by the motor vehicle accident. According to the
medical evidence, the symptoms could be relieved by massage therapy,
physiotherapy, exercise, anti-inflammatory and analgesic medicine, or by surgery.
The plaintiff said she was financially unable to take undertake massage therapy
or physiotherapy. Madam Justice Quijano said: “financial constraint is not an
answer to failure to mitigate.” No authority was cited for this proposition.

[121]    
 A number of other cases have considered the question of whether limited
financial resources can be considered when assessing whether a plaintiff has
acted unreasonably in failing to undertake the recommended programs or
therapies.

[122]    
In Trites v. Penner, 2010 BCSC 882 Madam Justice Ker stated, at
paras 209-210:

209 Financial circumstances are certainly one factor to
consider in the overall reasonableness assessment of whether a plaintiff has
failed to mitigate their losses. What is reasonable will depend on all the
surrounding circumstances. …

210 … I cannot find that Mr. Trites
acted unreasonably in determining how best to try and pay for all the treatment
modalities that had been working for him in assisting his rehabilitation but
were no longer going to be paid for by ICBC and were beyond his limited means
at the time. As Smith J. noted in O’Rourke v. Claire, [1997] B.C.J. No. 630
(S.C.) at para. 42 "it does not lie in the mouth of the tortfeasor to
say that a plaintiff in such circumstances has failed to mitigate by failing to
arrange and pay for his own rehabilitative treatment."

[123]     In Rozendaal
v. Landingin, 2013 BCSC 24 at paras. 66 to 74 Madam Justice Holmes
found that the defendant had not established the claim that the plaintiff had
failed to mitigate in circumstances where “financial priorities displaced
ongoing physiotherapy or active rehabilitation”: para 70. I came to the same
conclusion in Fifi v. Robinson, 2012 BCSC 1378, at para. 84.

[124]    
In the Alberta Court of Appeal decision in Pfob v. Bakalik, 2004
ABCA 278, 33 Alta. L.R. (4th) 200 [Pfob] the plaintiff, a self employed
contract courier, was unable to pay for the cost of the physiotherapy that had
been recommended to him as part of his rehabilitation regimen following the
motor vehicle accident. The Court upheld the trial judge’s decision that, in
the circumstances, the plaintiff’s impecuniosity relieved him of his obligation
to mitigate. At paras 23-24 the Court explained:

23 The trial judge found that the respondent was relieved
from his duty to mitigate because he followed all recommended treatment except
physiotherapy, which he could not afford, and it was not unreasonable for him
to await the outcome of his appeal of the decision of the Workers’ Compensation
Board to deny him coverage for that therapy: (Ibid. at paras. 44-45).

24 The appellant maintains there
is no evidence to support the contention that the respondent was not able to
afford physiotherapy. However, the trial judge noted the respondent is not a
high income earner, is saddled with indebtedness, and had testified that he was
unable to afford the therapy. As that evidence was uncontroverted, the trial judge
was entitled to rely on it.

[125]     In light
of these decisions I do not accept the principle set out in Smyth. Instead,
the question for this Court is whether the defendant has met its burden of
demonstrating that the plaintiff acted unreasonably in eschewing the
recommended treatment. This is a factual decision to be determined in the
circumstances of each case. I am not satisfied that the defendant has
established that the plaintiff acted unreasonably by failing to undergo physiotherapy
treatment that she could not afford to pay for.

[126]     In the
result I reject the defence contention that damages should be reduced for
failure to mitigate by the plaintiff.

III.            
Assessment of Damages

[127]     I will
asses Ms. Brown’s claims for damages in the following categories.

A.             
Non-pecuniary damages;

B.             
Past wage loss and loss of past earning capacity;

C.             
Loss of future earning capacity;

D.             
Loss of housekeeping capacity;

E.             
Cost of future care; and

F.             
Special damages.

A.             
Non-Pecuniary Damages

[128]     I have
found that the plaintiff’s injuries resulted in significant pain, suffering and
limitation of function for about two years post accident. I have found that she
suffers from some limited ongoing consequences of the accident, but not of such
a degree that they constitute an ongoing disability in relation to work, domestic
or recreational activities.

[129]     The
general principles relating to assessment of non-pecuniary loss are set out in
the decision of the B.C. Court of Appeal in Stapley v. Hejslet, 2006
BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45 and 46.

[130]     As noted,
the plaintiff submits that an appropriate award for non-pecuniary loss in this
case is $65,000 to $80,000, or more. For guidance as to quantum, the plaintiff
cites Schnare v. Roberts, 2009 BCSC 397, and Kasic v. Leyh, 2009
BCSC 397.

[131]     In Schnare,
the plaintiff was a 32 year old teacher with two young children when she was
injured in an accident in March, 2005. At trial in January 2009 Adair J. found
that she was suffering from some permanent disability. She had neck pain and
significant back pain which interfered with most of her normal activities, and
had a very significant effect on the quality of her life. She was awarded
$85,000 for non pecuniary loss. She was also awarded $125,000 for loss of
earning capacity, and $25,000 for loss of housekeeping services, as well as
some other minor amounts.

[132]     In Kasic,
the plaintiff was 45 years of age when he was injured in motor vehicle accident
that occurred in August, 2004. Morrison J. held that he suffered from serious,
continuous, chronic, debilitating lower back pain caused by the accident
injuries. The injuries had changed him physically, mentally and emotionally.
She held that his quality and enjoyment of life had been seriously affected. He
was permanently partially disabled. Non pecuniary damages were awarded in the
amount of $70,000. Additionally, $100,000 was awarded for loss of earning
capacity.

[133]     Neither Schnare
nor Kasic provide useful guidance to me here, given my findings in
this case.

[134]     The
defence submits that the plaintiff’s injuries were limited to mild to moderate
soft tissue injuries to her right shoulder and knees, and a contusion to her
forehead, and that there is no objective evidence of injury beyond about six
months post accident. On that basis the defendant’s submit that an appropriate
award for non-pecuniary loss is in the range of $10,000 to $20,000. The
defendants cited: Campbell v. Makela, 2003 BCSC 634, ($20,000); Pennykid
v. Escribano, 2004 BCSC 954 ($14,000); Mak v. Eichel, 2008 BCSC 1102
($20,000, including an unspecified award for loss of housekeeping capacity); Hussain
v. Cho, 2012 BCSC 194 ($25,000 including $5,000 for loss of housekeeping
capacity); Mohamadi v. Tremblay, 2009 BCSC 898 ($10,000); Eiermann v.
Watts, 2004 BCSC 98 ($20,000).

[135]     In their
submissions the defendants’ understated the scope of the plaintiff’s injuries
as compared with my findings.

[136]     The cases
relied upon by the defendants reflect their submissions and for that reason are
of only limited assistance to me. I will refer to some of the decisions cited,
only.

[137]     In Campbell
v. Makela, 2003 BCSC 634, a ten year old decision of this court, the
plaintiff’s acute injuries were found to have resolved by 50% within two months
of the accident: para 19. At trial almost four years later he continued to
experience flare-ups of pain. The non-pecuniary damages were set at $20,000.

[138]     In Hussain
v. Cho, 2012 BCSC 194 the trial judge concluded that the plaintiff had
suffered headaches as well as soft tissue injuries as evidenced by pain in her
neck, back and shoulder. The judge accepted the medical evidence that the
plaintiff had “probably substantially recovered” within a year of the accident,
but also found that she continued to suffer some pain and headaches for more
than a year after the accident. The plaintiff was awarded $25,000 in non
pecuniary damages, which included $5,000 for diminished homemaking capacity.

[139]     In Mak
v. Eichel, 2008 BCSC 1102, 171 A.C.W.S. (3d) 115  there was little impact
on the plaintiff’s lifestyle beyond the first two weeks following the accident.
The trial judge found that the plaintiff’s soft tissue injuries had
substantially resolved within five months. As compared with the case before me,
the injuries of the plaintiff were of a much shorter duration, and were less
serious; the impact on the plaintiff’s life was minimal and relatively
short-lived. The award was $20,000 including loss of housekeeping capacity for
“two or three weeks”.

[140]     In Eiermann
v. Watts, 2004 BCSC 98 the plaintiff sustained soft tissue injury to her
shoulders, back and neck. Her neck injury was substantially resolved within
about three years of the accident, and her other injuries were substantially
resolved within about five years. Her injuries were not disabling  in respect
of employment. Non pecuniary loss damages of $20,000 were awarded.

[141]     I have
also considered the following cases: Basi v. Buttar, 2010 BCSC 9
($30,000 in non-pecuniary damages and $7,000 for loss of housekeeping capacity);
Bartel v. Milliken, 2012 BCSC 563 ($35,000 non-pecuniary damages); McCreight
v. Currie, 2007 BCSC 127, 155 A.C.W.S. (3d) 90, varied on other grounds 2008
BCCA 150 ($8,000 for loss of housekeeping capacity and $40,000 for
non-pecuniary loss); Estable v. New, 2011 BCSC 1556 ($30,000 in
non-pecuniary damages, and an additional lump sum of $3,000 for past and future
loss of housekeeping capacity); and Johnston v. Day, 2002 BCSC 480, 113
A.C.W.S. (3d) 636 ($32,500).

[142]     Having
considered the relevant factors as outlined in Stapley, and taking into
account the authorities which I have mentioned above, I assess Ms. Brown’s
non-pecuniary damages at $35,000.

[143]     The award
takes into consideration that the plaintiff’s injuries would have interfered
with her ability to carry out her normal housekeeping and domestic activities.

B.             
Past Loss of Earning Capacity

[144]     The
plaintiff argues that her accident injuries rendered her unemployable. The
plaintiff argues that her pre-accident earnings were in the range of $15,000
per annum. Therefore, she contends that appropriate compensation for past loss
of earnings or earnings capacity would be 3 ½ times $15,000, or $52,500.

[145]     A claim for
past wage loss or pre-trial loss of earning capacity involves assessment of the
value of the work that an injured plaintiff would have performed but was unable
to perform because of the injury: Rowe v. Bobell Express Ltd., 2005 BCCA
141, 251 D.L.R. (4th) 290 at para. 30. Although awards are often referred
to in terms of pass loss of earnings, the award is properly characterized as a
loss of earning capacity: Bradley v. Bath, 2010 BCCA 10, 279 B.C.A.C.
240 at paras. 31- 32; Lines v. W & D Logging Co. Ltd., 2009
BCCA 106, 306 D.L.R. (4th) 1 at para. 153; X. v. Y., 2011 BCSC 944
at para. 185.

[146]     I accept
the plaintiff’s evidence that at the time of the accident she was working for
OFTDF by placing boxes of chocolates at retail locations. The plaintiff has not
proven what earnings she was making from that work. She has not established
that the work remained available to her post accident, had she been healthy.

[147]     There was
no evidence the plaintiff has looked for any alternative work since the motor
vehicle accident. As noted, she has helped out at the flea market on Sundays.
She testified that she also sells some goods there. There was no evidence as to
any earnings at the flea market either prior to or after the motor vehicle
accident.

[148]     On the
evidence, the plaintiff has not established that she has lost the value of work
that she would have performed but was unable to perform due to her injuries,
therefore she has not established a compensable past loss of earnings capacity.
I am not satisfied on the evidence that there is an adequate basis for an award
for lost earnings.

C.             
Loss of Future Earning Capacity

[149]     The
plaintiff submits that a reasonable award for loss of future earning capacity
would be equivalent to four to five years of her average income pre-accident,
which was submitted to be in the range of $15,000. On that basis, the plaintiff
claims $60,000 – $75,000 as appropriate compensation for loss of future earning
capacity.

[150]     As the
plaintiff has not established a significant ongoing disability resulting from
the accident injuries, there is no adequate evidentiary basis for an award of
lost earning capacity.

D.             
Loss of Housekeeping Capacity

[151]     In X.
v. Y., 2011 BCSC 944, Madam Justice Dardi summarized the relevant
principles in relation to award for loss of housekeeping capacity at paras. 246
– 249.

[152]     In the
case at bar, the evidence concerning housekeeping services was exceedingly
sparse. The plaintiff testified that prior to her separation, she did the bulk
of the domestic chores including cooking and cleaning and yard work. In his
opening for the plaintiff, plaintiff’s counsel indicated that the plaintiff’s
former husband would be giving evidence on her behalf, but he was not called as
a witness. Thus there is no evidence corroborating the degree to which the
plaintiff undertook domestic chores during the course of her marriage.

[153]     The
plaintiff now resides with Mr. Racz. As noted, in that relationship she
says that domestic duties are done by “whoever has the energy” and “not much
gets done”. The work that is done is split on a more or less even basis. Mr. Racz
gave no evidence concerning household duties. Dr. Campbell’s CL19 report
of February 18, 2010 indicated that the plaintiff was capable of carrying out
her non work activities. His medical-legal report of March 15, 2010 makes no
specific reference to her ability to undertake domestic duties although he says
that her injuries have “permanently adversely changed and decreased the quality
of Ms. Brown’s working and private life.”

[154]     The
plaintiff has not replaced household duties with any paid assistance. There is
no evidence concerning the economic value or replacement cost of household
services that the plaintiff has been unable to do. The plaintiff does not
advance any in-trust claim for services rendered by a family member or other
person.

[155]     In
relation to the past, I accept that the plaintiff’s injuries would have
interfered with her ability to undertake her ordinary household and domestic
chores to a degree commensurate with her injuries. That is a factor that should
be taken into account in assessing the plaintiff’s non pecuniary loss, as I
have done: see X. v. Y. 2011 BCSC 944, at para. 251.

[156]     On the
evidence as it relates to the plaintiff’s injuries at present and into the
future, I am not satisfied that the plaintiff has made out any compensable loss
of future housekeeping capacity, beyond that which ought to be taken into
account as part of the assessment of non-pecuniary loss.

E.              
Cost of Future Care

[157]     The
plaintiff submits that an award in the range of $20,000 is appropriate based
upon the plaintiff’s needs for psychological intervention, and pain management
modalities such as physiotherapy and massage therapy.

[158]     Dr. Campbell’s
opinion is that the plaintiff needs “physical therapy, medical therapy and
psychological therapy.”

[159]     I am not
satisfied that there is any proven need for such services in the future.

[160]     Moreover,
there was no evidence whatsoever concerning the cost of any such treatments. The
plaintiff offers no calculation or rationale supporting the claimed amount of
$20,000. Dr. Campbell’s report provides no detail as to the amounts or
duration of treatment he suggests for the plaintiff. The only specific
recommendation for physiotherapy made by Dr. Campbell in the evidence is
in his CL19 report of February 18, 2010, where he suggested 10 physiotherapy
treatments would be beneficial. The only evidence I have as to cost is the
plaintiff’s evidence that the user fee was $20.

[161]     Therefore
the plaintiff has also failed to establish what the costs of the claimed
services would be.

F.              
Special Damages

[162]     The
plaintiff argues that she should receive $2,500 for the cost of transportation,
by way of mileage for a private vehicle, in respect of medical care, relating, essentially,
to her frequent visits to Dr. Campbell.

[163]     There is
no evidence to support this claim. Moreover, I am not satisfied that many of the
plaintiff’s visits to Dr. Campbell’s office were for any purpose other
than to advance the plaintiff’s legal claims.

[164]     The
plaintiff has failed to prove special damages.

IV.           
Summary and Conclusions

[165]     The
plaintiff is awarded the sum of $35,000 as compensation for non-pecuniary loss.
Her other claims are dismissed.

[166]    
In the absence of submissions, the plaintiff is entitled to costs at
scale B. The parties are at liberty to make further submissions in writing or
orally as they wish, provided arrangements for such further submissions are
made within 45 days.

“Verhoeven J.”