IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130215

Docket: M65396

Registry:
Nanaimo

Between:

Natalie Krystle
Schafer

Plaintiff

And

Kaitlyn Whiteley
and Karen Whitely

Defendants

Before:
The Honourable Mr. Justice D.A. Halfyard

Reasons for Judgment

The Action

[1]            
In this trial, the plaintiff Natalie Krystle Schafer claims damages for
personal injuries which she sustained as the result of a motor vehicle accident
which occurred on May 5, 2010, in Nanaimo. The plaintiff alleges that the
accident was caused solely by the negligent driving of the defendant Kaitlyn
Whiteley. The claim against the defendant Karen Whiteley alleges vicarious
liability on the ground that she was the registered owner of the vehicle being
driven by Kaitlyn Whiteley. Both liability and damages are in issue.

The Issue of Liability

The Accident

[2]            
I will summarize the facts relating to the accident which are either
admitted or not in dispute.

[3]            
At shortly before 11:00 a.m. on Wednesday, May 5, 2010, the plaintiff
was driving her 2008 Mazda sedan in a northerly direction on Uplands Drive. She
was approaching the intersection with Hammond Bay Road, which runs in an
east-west direction at that location. The plaintiff was travelling at about 50 kilometres
per hour (kph), which was the posted speed limit. The intersection was
controlled by traffic signal lights. The traffic light was green for vehicles
travelling north on Uplands. The plaintiff did not have to slow down or stop at
the intersection, and she intended to drive through the intersection and
continue going north on Uplands Drive.

[4]            
As the plaintiff neared the intersection, Uplands Drive widened from one
lane to three lanes for north bound traffic:

a)    A lane for
vehicles intending to turn left, so as to travel west on Hammond Bay Road;

b)    A lane adjacent (to
the right of) that left-turn lane, for vehicles intending to drive through the
intersection and continue north on Uplands Drive; and

c)     An outside
or curb lane for vehicles intending to either travel through the intersection
to continue north on Uplands Drive, or to turn right onto Hammond Bay Road so
as to travel east.

[5]            
The plaintiff was driving in the curb lane. For at least 70 metres
before reaching the intersection of Hammond Bay Road, the plaintiff was driving
on a slight uphill grade.

[6]            
The defendant Kaitlyn Whiteley was driving her mother’s 2003 Ford Focus,
travelling south on Uplands Drive, approaching the intersection of Hammond Bay
Road. There were three traffic lanes at that point, for vehicles travelling
south on Uplands Drive, which were similar to the three lanes for northbound
vehicles on Uplands Drive, approaching the intersection. There was an uphill
grade for southbound vehicles on Uplands Drive that were approaching the
intersection, which was somewhat steeper than the uphill grade for northbound
vehicles on Uplands Drive that were approaching the Hammond Bay Road
intersection.

[7]            
Ms. Whiteley was travelling south in the left-hand turn lane. The
traffic light was also green for southbound traffic on Uplands Drive. Ms.
Whiteley was intending to make a left-hand turn so as to travel east on Hammond
Bay Road. It was not necessary for her to stop for the traffic light and she
proceeded into the intersection at a speed of about 30 kph. Without stopping,
she commenced making a left-hand turn.

[8]            
Part way through the left-hand turn, the defendants’ vehicle collided
with the plaintiff’s vehicle, which was proceeding through the intersection in
the same lane that it had been travelling as it neared the intersection. The
front ends of the two vehicles came into collision. The driver’s side front of
the plaintiff’s vehicle sustained heavier damage than its right front. The
passenger side front of the defendants’ vehicle sustained heavier damage than
the driver’s side front. Both vehicles were heavily damaged and were deemed not
repairable.

[9]            
Firefighters, ambulance attendants and a police officer attended very
soon after the accident occurred. The plaintiff required assistance to enable
her to get out of her car (her seat belt was jammed). She was obviously
injured. She was put on a stretcher, placed in the ambulance and taken to
hospital. It appears that Ms. Whiteley was able to get out of her car after the
collision. She was upset and was physically shaken up. She was taken to the
hospital but as it turned out she was not physically injured as a result of the
accident.

[10]        
Weather conditions and road surface conditions were apparently good, and
had no bearing on the accident. The two drivers would have had an unobstructed
view of each other for some time and distance before the collision occurred,
but that time and that distance is unknown. No driving offence was charged
against either driver.

[11]        
Ms. Whiteley saw the plaintiff’s vehicle approaching the intersection
from the south, before she commenced her left-hand turn. The plaintiff did not
see the defendants’ vehicle, at any time before the two vehicles collided.

The Position of the Plaintiff

[12]        
The plaintiff alleges that the defendant Kaitlyn Whiteley was 100% at
fault for the accident. It is submitted that the defendant failed to comply
with her statutory obligation imposed by s. 174 of the Motor Vehicle Act,
in that she failed to yield the right-of-way to the plaintiff’s vehicle, when
the plaintiff’s car was either in the intersection or so close to the
intersection as to constitute an immediate hazard. The plaintiff says that the
defendant’s breach of her statutory obligation was a negligent act and that it
was the sole cause of the collision.

The Position of the Defendants

[13]        
The defence concedes that Ms. Whiteley was partly at fault for the
accident, although counsel did not specifically identify the negligent act that
was being admitted. But from the tenor of the defence argument, I infer that it
is admitted that Ms. Whiteley commenced turning left when the plaintiff’s
vehicle was either in the intersection or so close to the intersection as to
constitute an immediate hazard.

[14]        
But it is contended on behalf of the defendants that there was
negligence on the part of the plaintiff which was also a cause of the
collision. Firstly, it is alleged that the plaintiff’s right-turn signal was
activated and flashing as she approached the intersection of Hammond Bay Road,
and that this induced Ms. Whiteley to believe that the plaintiff was going to
turn right onto Hammond Bay Road, rather than drive through the intersection.
The defence contends that Ms. Whiteley would never have proceeded to turn left,
if the plaintiff had not been signalling her intention to turn right onto
Hammond Bay Road.

[15]        
Secondly, the defence alleges that the plaintiff’s failure to see Ms.
Whiteley’s vehicle when it was there to be seen, was a negligent omission which
was also a cause of the collision. It is implicit in this submission that, if
the plaintiff had seen Ms. Whiteley’s vehicle in the process of making a
left-hand turn, she could have taken steps to avoid the collision.

[16]        
The defence submits that fault for the accident should be apportioned
75% to the plaintiff and 25% to the defendant Kaitlyn Whiteley.

Reply Position of the Plaintiff

[17]        
The plaintiff flatly denies that her right turn signal was activated as
she approached the intersection with Hammond Bay Road. With respect to her admitted
failure to see the defendants’ vehicle before the collision, the plaintiff
argues that, even if she had seen the defendants’ vehicle and realized it was
making a left turn, she could not have avoided the collision. It is argued
that, in the circumstances that existed, there was insufficient time and
distance to enable her to take steps to avoid a collision with the defendants’
vehicle.

[18]        
The plaintiff thus denies that her driving conduct caused or contributed
to the accident.

Issues

[19]        
The defence having admitted that the negligent driving of the defendant
Kaitlyn Whiteley was a cause of the accident, the issue is whether the
plaintiff drove in a negligent manner, and if so, whether her negligence was
also a cause of the collision. The defence bears the burden of proving the
defence of contributory negligence. The defendants allege two facts in support
of the defence of contributory negligence, as follows:

a)    The right-turn
signal on the front of the plaintiff’s car was activated and was flashing, as
she approached the intersection.

b)    If the plaintiff
had seen the defendants’ vehicle when she ought to have seen it, she could have
taken steps to avoid the collision.

Was the right-turn signal on the plaintiff’s vehicle activated as she
approached the intersection?

[20]        
The only evidence that the plaintiff’s right-turn signal was activated,
comes from the defendant Kaitlyn Whiteley. The only evidence that the
plaintiff’s right-turn signal was not activated comes from the plaintiff. I
cannot decide the issue of whether or not the plaintiff’s right-turn signal was
activated without assessing the credibility of the evidence given by these two
witnesses on this issue.

The credibility of the defendant Kaitlyn Whiteley

[21]        
Kaitlyn Whiteley is now 21 years of age. At the time of the accident,
her age was 18 years and 10 months. She said that she had been driving a motor
vehicle since she was about 16 years old. She testified to the effect that she
saw the right-turn signal of the plaintiff’s car flashing as it approached the
other side of the intersection, that this caused her to believe that the
plaintiff was going to make a right-hand turn onto Hammond Bay Road and that
because of this, she proceeded with her intention to make a left-hand turn; but
the plaintiff did not turn right and the collision occurred. She testified to
the effect that, at the accident scene she told the investigating police
officer that she saw the plaintiff’s right turn signal flashing, before she
herself turned left.

[22]        
Ms. Whiteley further testified in direct examination that the
plaintiff’s boyfriend (who was Nigel Ward) approached her when she was sitting
in the emergency room at the hospital, shortly after the accident. She said
that she was upset, she had seen the plaintiff being carried away on a
stretcher and thought she had received a serious injury, and so she
“apologized.” She did not elaborate on what her apology consisted of, but it
was implicit in her testimony that she was apologizing for having caused the
accident.

[23]        
In cross-examination, Ms. Whiteley said that she obtained her learners
drivers licence when she was a few months past the age of 16, and that a little
more than a year later she obtained her “N” drivers licence. She said she had
the “N” licence for two years, meaning that she still had only an “N” drivers
licence at the time of the accident. She said she later took the driver’s test,
to obtain a full and unrestricted driver’s licence.

[24]        
Ms. Whiteley admitted that she had received one speeding ticket and one
ticket for not having her headlights on, while she was driving with an “N”
driving licence. She said these infractions did not cause any delay in her taking
the test for a full driver’s licence.

[25]        
On being questioned extensively about her conduct following the
accident, Ms. Whiteley said that her mother handled all of the dealings with
ICBC and said she could not recall speaking to any person who represented ICBC.
She eventually admitted that she spoke to a person on the phone after her
mother spoke to that person; and she conceded that this person may have been
with ICBC, and that the conversation probably related to the accident in some
way. But she said she could not recall any of the conversation.

[26]        
Ms. Whiteley denied the suggestion that she had lied on her examination
for discovery, on the point of whether she had “seen” anyone from ICBC about
the accident.

[27]        
On being questioned about the accident, Ms. Whiteley gave many answers
which amounted to “I don’t know.” The subject – matters of those questions
included the speed of her own vehicle, the speed of the plaintiff’s vehicle,
whether the plaintiff’s vehicle had slowed down, the distance between her
vehicle and the plaintiff’s vehicle when she saw the right-hand signal
flashing, the distance she travelled while turning left up to the point of
impact and the location in the intersection where the collision occurred.

[28]        
Ms. Whiteley denied counsel’s suggestion that she was mistaken about
whether the plaintiff’s right-turn signal was on.

[29]        
Counsel for the plaintiff submitted that Ms. Whiteley had failed to report
the accident promptly to ICBC, and argued that she was evasive in answering
questions about whether she had talked to ICBC. Plaintiff’s counsel pointed out
that Ms. Whiteley could remember almost nothing else about the accident, except
her assertion that she saw the plaintiff’s right-turn signal flashing. Counsel
further stated that her conduct in apologizing to Nigel Ward at the hospital
without stating that she saw the plaintiff’s right-turn signal flashing,
diminishes the reliability of her trial testimony on this point. It was further
stated that Constable Clayton Wurzinger’s finding the turn-signal lever in the
plaintiff’s car in a neutral position after the collision, supported the
plaintiff’s version.

[30]        
In essence, counsel for the plaintiff submitted that, for these reasons,
Ms. Whiteley’s evidence was unreliable, was not confirmed by any other evidence
and should not be accepted by the court.

The credibility of the plaintiff

[31]        
The plaintiff testified that she is now 30 years of age. At the time of the
accident, she was on her way to work in Lantzville. She said that she left her
residence on Butternut Drive, drove to Uplands Drive and made a right turn and
then travelled continuously on Uplands Drive to the place where the accident
occurred. She said that she would have signaled a right turn onto Butternut
Drive but that the signal light would automatically go off once she
straightened out the steering wheel after making the turn. She said that she
did not activate her right-hand turn signal at any time thereafter, and she was
adamant that the right signal light was not flashing as she neared the place
where the collision occurred.

[32]        
The plaintiff stated that she had driven through this intersection many
times, and that it was her regular route to drive to work in Lantzville. She
intended to drive through the intersection and across Hammond Bay Road and to
continue north on Uplands Drive. She said she had no intention of making a
right-hand turn. She said that the light was green and that there was no need
for her to slow down before entering the intersection and that she did not slow
down. She said she was travelling at about 50 kph.

[33]        
The plaintiff further testified in direct that, if she had activated her
right-turn signal somewhere along Uplands Drive after making her right-hand
turn off Butternut Drive (to change lanes in an area where there were two lanes
for northbound traffic), and if the right-turn signal accidentally remained
activated after she moved to the right, she would have heard the signal clicking
and she would have seen the arrow flashing in her dashboard and would have
turned the signal off. The plaintiff stated that she would have had to slow
down considerably, in order to make a 90 degree right-hand turn onto Hammond
Bay Road but said she did not slow down. She admitted that she did not see Ms.
Whiteley’s car, at any time before the collision.

[34]        
In cross-examination, the plaintiff confirmed that she had not seen the
defendants’ vehicle before the collision. She said that she was paying attention
to the road ahead, but seemed to concede that she was focusing her attention on
the possibility that a vehicle travelling west on Hammond Bay Road might make a
right-hand turn onto Uplands Drive in front of her.

[35]        
In attempting to explain why she did not see the defendants’ vehicle
before the collision, the plaintiff suggested that it might have been obscured
by the hill that sloped down from the intersection to the north. But the
photographs introduced on behalf of the plaintiff, which showed what a driver
would see as he or she drove north on Uplands Drive toward the intersection of
Hammond Bay Road, and Nigel Ward’s evidence in estimating approximate distances
from the intersection reflected in the photographs, were inconsistent with that
explanation of the plaintiff. The evidence establishes that a driver in the
plaintiff’s circumstances could see any vehicle nearing the stop line of the
left turn lane on the north side of the intersection from a distance of at
least 40 metres before reaching the southern edge of the intersection.

[36]        
Counsel questioned the plaintiff about her professed absolute certainty
that her right-turn signal was not on. When he suggested to the plaintiff that
it was possible that the right-turn signal was activated, the plaintiff said
that it was not possible. Counsel suggested that the series of questions and
answers from 189 to 194 of the plaintiff’s examination for discovery show that
the plaintiff previously gave inconsistent evidence on this point in that she
allowed it was possible that she had left the right-turn signal on accidentally;
and in that the plaintiff had also admitted that, if the radio was on (and it
might have been), she might not hear the clicking of the turn signal. At no
time did the plaintiff admit the possibility that she would not have seen the
signal light flashing on her control panel if it had been left on accidently.

[37]        
The plaintiff testified that she had not heard of the defendant’s
allegation that her right signal light had been activated, until the ICBC
adjuster told her, a few days after the accident. She said that was the first
time that she started thinking about that issue.

[38]        
It was demonstrated in cross-examination that the ability of the
plaintiff to estimate distances was exceedingly poor.

[39]        
At the end of her cross-examination, the plaintiff repeated that she was
absolutely 100% sure that she did not have her right-turn signal on, at the
relevant time.

[40]        
I agree with defence counsel that Constable Wurzinger’s finding the turn
signal lever of the plaintiff’s car in a neutral position after the collision,
does not confirm the plaintiff’s evidence. There are simply too many ways in
which the lever could have been moved into the neutral position, if it had been
in the activated position at the time of the collision. I also agree with
counsel for the plaintiff that Gary Booth’s evidence (that he did not notice
whether the plaintiff’s right-turn signal was on or not) does not confirm the
evidence of Ms. Whiteley. I find that Mr. Booth’s evidence to the effect that
if the plaintiff’s right-turn signal was on at the time, that could possibly explain
why the defendant might have made the left-hand turn, is not relevant and is
not capable of confirming the defendant’s evidence.

[41]        
Counsel for the defendants submitted that the plaintiff’s failure to see
the defendants’ vehicle supported the conclusion that she was not keeping a
proper lookout and not paying proper attention to her driving. From this
foundation, counsel argued that the plaintiff’s right-turn signal could have
been accidently left on, and she was not paying sufficient attention to notice
that it was still activated. It was further contended that it was improbable
that Ms. Whiteley would have turned left in the circumstances that existed,
unless she had some reason to believe that the plaintiff was going to make a
right-hand turn.

Conclusions on first issue

[42]        
There are some weaknesses in the credibility of both parties. As to Ms.
Whiteley, it is true that she told Constable Wurzinger, at the accident scene,
that the plaintiff’s right-turn signal was on. That prior consistent statement
cannot be evidence of the truth of its contents, nor can it bolster the
strength of the defendant’s trial testimony on the same subject. But in my
view, that prompt complaint neutralizes the submission by counsel for the
plaintiff that Ms. Whiteley was not being honest when she testified that the
plaintiff’s right signal light was on. I am not satisfied that she was
dishonest.

[43]        
As to the plaintiff, I find that she honestly believed in the truth of
her testimony. Notwithstanding her reluctance to admit the possibility that she
was mistaken, that possibility does exist. But I am not persuaded that the
plaintiff was mistaken, and so I am not prepared to reject her testimony on
this point.

[44]        
The burden of proof rests on the defence. Even if Ms. Whiteley believed
that the plaintiff’s right turn signal was on, I am not satisfied that she was
not mistaken. In that respect, I find that the defence has failed to meet the
burden of proof. I am not persuaded that it is more probable than not that the
plaintiff’s right signal light was on at the time of the accident. There is a
possibility that the signal light was activated, but that falls far short of
the standard of proof required. I find that the defence has failed to prove the
first allegation on which the defence of contributory negligence is based.

If the plaintiff had seen the defendant’s vehicle before the collision,
could she have avoided the collision?

[45]        
A person’s failure to keep a proper lookout when driving a motor vehicle
with the result that that the driver fails to see another vehicle which
constitutes an immediate hazard, is conduct which falls below the standard of
care that a reasonable driver would exercise. If that conduct in breach of the
standard of care is shown to have caused or contributed to an accident, then
negligence (in this case contributory negligence) will be made out.

[46]        
Again, the defendant bears the burden of proving that Ms. Schafer’s
failure to see Ms. Whiteley’s car before the collision, was a cause of the
collision. In order to do this, the defence must establish that, after the
point in time when Ms. Schafer ought to have seen Ms. Whiteley’s car in the
process of turning left across her path of travel, Ms. Schafer had an
opportunity to avoid the collision; and that a reasonable driver in her
position would have avoided the collision. See Pacheco (Guardian ad litem
of) v. Robinson (1993), 75 BCLR (2d) 273 (C.A.) at para. 18; Nerval v.
Khehra 2012 BCCA 436 at paras 35 – 37.

[47]        
Ms. Whiteley saw the plaintiff’s vehicle approaching from the south. But
she was unable to give any estimate of the distance between her vehicle and the
plaintiff’s vehicle at the time she commenced her left turn. Nor was Ms.
Whiteley able to estimate the speed of the plaintiff’s vehicle. She was only
able to say that she was “about halfway through” her left turn, when the
collision occurred.

[48]        
The plaintiff did not see Ms. Whiteley’s vehicle at any time before the
collision. As a consequence, she cannot give any evidence on this issue, beyond
her testimony that she was travelling north at about 50 kph and was intending
to drive straight through the intersection, across Hammond Bay Road. She also
said that she did not slow down as she neared the intersection, and Ms. Whiteley
agreed that the plaintiff’s vehicle did not slow down.

[49]        
Gary Booth was the only other witness to the accident. He was an
independent witness. His credibility was not challenged, and I accept his
evidence. Shortly before the accident occurred, he had been driving west on
Hammond Bay Road. He encountered a red traffic light at the intersection of
Uplands Drive, and was stopped at the east side of the intersection in the
middle lane, when he saw the accident occur. His car was the first in the line
of stopped traffic, and he had an unobstructed view of the intersection.

[50]        
Mr. Booth estimated that the plaintiff’s vehicle was travelling at about
50 kph, travelling north on Uplands Drive. Mr. Booth testified that, as the
plaintiff’s vehicle neared the intersection, it appeared to be going too fast
to make a right-hand turn onto Hammond Bay Road and he saw nothing to indicate
that the driver of that vehicle intended to make a right-hand turn.

[51]        
Mr. Booth testified that the defendant’s vehicle was travelling south on
Uplands Drive, in the left-turn lane, and entered the intersection travelling
at about 30 kph. He said that the plaintiff’s vehicle continued to travel
through the intersection, and the defendant’s vehicle (which did not stop)
proceeded to turn left and the two vehicles collided. His description of the
location of the point of impact was understandably somewhat vague. The two
vehicles moved after the collision, before coming to rest. He thought that it
all happened too fast, for the driver of the Mazda (the plaintiff) to avoid a
collision with the left-turning Ford Focus. In cross-examination, Mr. Booth
agreed with counsel’s suggestion that the arc of the left turn being made by
the Ford Focus would line up with the fast lane for east-bound traffic on Hammond
Bay Road. Mr. Booth did not notice whether or not the right-turn signal of the
Mazda car was on, just before the collision. He did not know, one way or the
other.

[52]        
The admission by the defence that Ms. Whiteley must accept some fault
for the collision necessarily includes the concession that she should have
yielded the right of way to the plaintiff’s vehicle. That implies the further
admission that the plaintiff’s car was so close that it constituted an
immediate hazard when Ms. Whiteley began to turn left.

[53]        
There was no evidence from which the location of the point of impact
between the two vehicles could be identified. No measurements were taken of the
approximate distance that Ms. Whiteley’s vehicle travelled, from the stop line
of the left-turn lane to the point of impact. There was no measurement of the approximate
distance that the plaintiff’s vehicle travelled from the stop line at the south
side of the intersection to the point of impact. There is no expert evidence to
reconstruct this accident. If the location of the point of impact had been
identified, the said measurements could have been made and the speeds of 30 kph
and 50 kph would permit the calculation of the time it took each of the two
vehicles to travel from the two opposite edges of the intersection, to the
point of impact.

[54]        
One of the common sense inferences that may be drawn is that the
plaintiff’s vehicle (travelling at 50 kph) would cover a greater distance in a
shorter time than the defendant’s vehicle would travel (moving at 30 kph). Having
regard to the aerial photograph of the intersection (Exhibit 7, Tab 2), it
seems to be a reasonable inference that the defendants’ vehicle travelled a
greater distance from the stop line at the north edge of the intersection, than
the distance travelled by the plaintiff’s vehicle from the stop line at the
south edge of the intersection, to the point of impact. But as I have said, no
measurements were taken of the intersection at all. Ms. Whiteley testified that
she was intending to turn left into the lane for eastbound traffic on Hammond
Bay Road that was closest to the centre line. The evidence establishes that the
plaintiff was travelling through the intersection, in the curb lane. If some
measurements had been taken, it would have been possible to estimate the
approximate location of the point of impact.

[55]        
The admission of fault was made by defence counsel on the footing that
the plaintiff’s right-turn signal light was activated. This amounts to the
concession that, even if the plaintiff’s right turn signal was flashing, Ms.
Whiteley should not have turned left, unless the plaintiff’s car slowed down or
made some movement to indicate that the plaintiff was going to turn right onto
Hammond Bay Road. Ms. Whiteley admitted that she did not see the plaintiff’s
car slow down or give any indication that it was going to turn right (other
than her assertion that the right-turn signal was flashing).

[56]        
It is common knowledge that, when a driver is confronted with an
immediate hazard, it takes a short time for the driver to react, before he or
she can begin to take steps to try to avoid the hazard. In many cases, there
has been evidence given that this reaction time for a reasonable driver is one
second or one and one-half seconds. There is no such evidence in this case, but
nevertheless, it must be acknowledged that the plaintiff would have required a
short interval of time to react to the hazard created by Ms. Whiteley’s
vehicle, if she had seen it begin to turn left, before the collision. Then, in
order to avoid a collision, she would have had to try to take some evasive
action (such as changing direction, slowing down or speeding up).

[57]        
Mr. Booth testified that the collision happened very fast. He thought
the driver of the Mazda (the plaintiff) had no chance to avoid a collision with
the left-turning vehicle. That opinion of course, is not conclusive, and it may
not even be admissible. But in my opinion, Mr. Booth’s evidence does establish
that there was an extremely short period of time within which the plaintiff might
have been able to take evasive action.

[58]        
It is a simple mathematical calculation to determine how many metres per
second each of the two vehicles was travelling just before the collision. If a
moving object is travelling at a speed of one kilometre per hour, that means
that it would travel 1,000 metres in 3,600 seconds (i.e., one hour). If that
moving object travels 1,000 metres in 3,600 seconds, then in one second (at a
speed of one kph), the object would travel 1,000 ÷ 3,600 = 0.278 metre.

[59]        
The plaintiff’s vehicle was travelling at 50 kph, so that in one second
at that speed she would have travelled 0.278 x 50 = 13.9 metres. The defendant
was travelling at 30 kph so that, in one second her vehicle would have
travelled 0.278 x 30 = 8.34 metres. If it is assumed that it takes a reasonable
driver approximately one second to react to a sudden hazard, then the
plaintiff’s vehicle would travel 13.9 metres in that “reaction” time interval. No
measurements of the intersection were taken, and on the evidence presented, I
am unable to find that, at the point in time when the plaintiff ought to have
known that the defendant was making a left turn ahead of her, the plaintiff’s
vehicle was further away from the point of impact than 13.9 metres. She might
not have had sufficient time to even react to the hazard presented by Ms.
Whiteley’s left-turning vehicle, even if she had seen it.

[60]        
It should also be kept in mind that the front end of the defendant’s
vehicle collided with the front end of the plaintiff’s vehicle. This allows for
the possibility that, even if the plaintiff had seen the defendant’s vehicle
before impact, and speeded up or swerved to her right in an attempt to avoid a collision,
the defendants’ vehicle might still have struck the plaintiff’s vehicle at some
point along the driver’s side. There is the further possibility that, if the
plaintiff had hit the brakes after seeing Ms. Whiteley’s turning vehicle, she
might not have had time to slow down enough to avoid crashing into that vehicle
as it crossed her path.

Conclusions on second issue

[61]        
The burden of proof is on the defence. In my opinion, the defence has
failed to establish that, after she ought to have seen Ms. Whiteley’s vehicle
turning left, the plaintiff had sufficient time and distance within which to
avoid the collision, and that a reasonable driver in Ms. Schafer’s position
would have avoided the collision.

[62]        
For the reasons I have outlined, I conclude that the defendants have
failed to prove that the negligence of the plaintiff (i.e., her failure to see
the defendants’ vehicle) was a cause of the accident. The defence of
contributory negligence fails. The defendants are 100% liable for the damages
that are to be awarded for the plaintiff’s injuries.

Damages

The claims

[63]        
The plaintiff alleges that she sustained soft-tissue injuries to her
neck, lower back, left knee and face as a result of the collision. She claims
damages under the categories of non-pecuniary loss, past loss of earnings, loss
of future earning capacity, special damages and the cost of future care.

The position of the defence

[64]        
The defence admits that the plaintiff is entitled to awards for
non-pecuniary loss, past loss of earnings, special damages and the cost of
future care. The parties are agreed as to the awards that should be made for
past loss of earnings and special damages. The amounts of the damages that
should be awarded for non-pecuniary loss and the cost of future care are in
dispute.

[65]        
The defence denies that the plaintiff is entitled to any award of
damages for loss of future earning capacity.

Overview of the evidence on damages

[66]        
The plaintiff testified and gave evidence relevant to all categories of
damages being claimed. The other witnesses who gave evidence relevant to the
issue of damages were Nigel Ward (Ms. Schafer’s fiancé), Karli Van Vliet (a
friend of Ms. Schafer and a high school physical education teacher), Gregory
Jackson (functional capacity evaluator) and Dr. Mark D. Adrian (specialist in
physical medicine and rehabilitation).

[67]        
The expert report of Gregory Jackson was filed as an exhibit and he was
cross-examined in court by counsel for the defendants. Dr. Adrian’s evidence
was given by way of expert reports and he was not cross-examined. Ms. Van Vliet’s
evidence was given by way of an agreed statement of her evidence (Exhibit 8).

[68]        
The defendants introduced the expert report of Dr. Rajiv Reebye, a
specialist in physical medicine and rehabilitation. Counsel for the plaintiff
cross-examined Dr. Reebye at trial. He was unable to travel to Nanaimo due to
weather conditions, and so he testified by way of video conferencing.

[69]        
I will review the evidence of the witnesses just mentioned, by outlining
what I consider to be the important parts of their evidence, in a summary way.

The Evidence of the plaintiff, Natalie Schafer

[70]        
I will first summarize the testimony given by the plaintiff in direct
examination.

[71]        
The plaintiff was 28 years of age at the time of the accident on May 5,
2010. She grew up in Port Alberni and graduated from high school there, in
2000. She moved to Nanaimo in 2002, where she commenced studies at the
Vancouver Island University (VIU) in September 2002. Her marks were not very good
in her earlier years of study, and it took her until May or June 2010 to obtain
her Bachelor of Arts degree (with a major in physical education, with
distinction).

[72]        
The plaintiff applied to VIU for admission to the program leading to a Bachelor
of Education degree. She was notified that her application was accepted, in
early May, 2010. The plaintiff attended VIU from September 2010 to December
2011, and obtained her Bachelor of Education degree. She said that her goal was
to be a high school physical education teacher.

[73]        
The plaintiff had been active in sports while in high school, including
gymnastics, soccer, volleyball, softball, dancing, skiing and snowboarding.
After high school, she continued to play soccer, softball and volleyball, and
to engage in winter sports.

[74]        
Over the years since graduating from high school, the plaintiff has done
a considerable amount of volunteer work working with children. At the time of
the accident, she was employed by the Boy’s and Girl’s Club, at Lantzville.

[75]        
The plaintiff testified that after the collision, she was experiencing a
lot of pain in her neck and lower back. She said she hit her left knee on the
dashboard which resulted in bruises and soreness. She said that, when the
airbag deployed, it scraped the left side of her face and also caused her to
bite her tongue, which was bleeding. In describing her condition after the
accident, the plaintiff stated “I was in pretty rough shape.”

[76]        
The plaintiff was released from hospital that same day, after having
been x-rayed and given anti-inflammatory medication. She said the pain in her
neck and lower back were the worst.

[77]        
The day after the motor vehicle accident, the plaintiff went to see her
family physician, Dr. Meyer. Her pain continued.

[78]        
The plaintiff was unable to work for about a month after the accident.
When she returned to work, she was unable to continue with her work at the
Boy’s and Girl’s Club, and changed to work involving special needs children.
She was still unable to resume any of the recreational and athletic activities
that she had been engaged in, before the accident. Her work with the special
needs children started on June 16, 2010, and she continued working there until
starting courses at VIU in September 2010, in the Bachelor of Education degree
program.

[79]        
The plaintiff resumed her job working with special needs children in the
summer of 2011, and worked until August 31, 2011. She then returned to VIU, and
completed her Bachelor of Education degree program by the end of December 2011.
In January 2012, she was hired as a teacher on call (TOC) by School District 70
in Port Alberni. The plaintiff stated that she has worked 70% to 75% of
full-time, since then as a substitute teacher.

[80]        
The plaintiff experienced some headaches after the accident. The
injuries to her knee and face had healed and the pain had subsided within a few
weeks after the accident. Her headaches had dissipated within a few months. The
neck and back pain continued, with the lower back injury causing the more
serious pain.

[81]        
The plaintiff undertook a program of physiotherapy treatment on the
advice of her doctor. The physiotherapy commenced a few weeks after the
accident. At several points in her treatment program, ICBC refused to pay for
further physiotherapy treatments, and the plaintiff ended up paying for some of
these treatments herself. She has done daily exercises at home, as recommended
by the physiotherapist, and has used cold and hot packs on her low back and
neck to relieve the pain.

[82]        
In January 2011, after Dr. Meyer moved away from Nanaimo, the medical
clinic assigned a new doctor to the plaintiff, Dr. Bodenstab. He prescribed
more physiotherapy for the plaintiff.

[83]        
The plaintiff had visited Dr. Meyer a number of times for treatment and
advice relating to her injuries, and she continued to see Dr. Bodenstab as
required. She did not feel comfortable with having Dr. Bodenstab as her doctor.

[84]        
The plaintiff says that she has not been able to return to most of the
activities that she had previously been engaged in, since the accident. She has
returned to playing softball, but says she cannot slide into the bases and is
not nearly as competitive now as she used to be. She has not engaged in
basketball, snowboarding or skiing or track and field activities since the
accident and has played soccer only occasionally. She says these activities
require vigorous movements which she cannot do or is afraid to do. She says she
used to run half-marathons, but now can run only a distance of two to three
killometres, and her running must be “low impact” (which I took to mean,
jogging).

[85]        
The plaintiff has been engaged for quite some time in exercise programs
offered by an organization called “Over the Hurdles.” In that program, she
engages in frequent and fairly rigorous exercises (often in groups) which she
has found helpful.

[86]        
In July 2012, the plaintiff began an exercise program supervised by a
personal trainer who was a kinesiologist.

[87]        
The plaintiff says that her neck and low back pain have improved since
the accident.

[88]        
The plaintiff’s work as a substitute teacher in Port Alberni requires
her to drive from Nanaimo to Port Alberni and return on each day that she
works. She says that this requires about one hour of driving each way and that this
prolonged sitting aggravates her symptoms of low back pain.

[89]        
The plaintiff was examined by Dr. Adrian on August 8, 2012, by Greg
Jackson (functional capacity evaluator) on October 17 and 18, 2012, and by Dr.
Reebye on November 14, 2012. Since her examination by Dr. Reebye, the plaintiff
has done some pool exercising, on his recommendation. She says that she has
found her exercising with a personal trainer and group fitness classes, to be
more beneficial to her than the pool exercises.

[90]        
The plaintiff said that she had never experienced pain in her neck or lower
back, before the accident.

[91]        
The plaintiff states that she experiences pain in her lower back every
day. She says that she feels all right when she gets up in the morning, but
that her lower back gets sore by the time she drives to Port Alberni to begin
work. She feels much better on weekends and other days off work. But she says
she still cannot do the activities she used to do.

[92]        
The plaintiff says that she lives with Nigel Ward and that they are
engaged to be married. He has a steady job working for the City of Nanaimo. She
has looked for work as a teacher in Nanaimo, but says that it is unlikely she
will be able to obtain work as a teacher in the Nanaimo School District because
of the fierce competition. She says that her best chance of obtaining a full-time
teaching job is in Port Alberni. But she says that she fears she will never be
able to do the physical work required of a high school physical education
teacher.

[93]        
The plaintiff says that she gets flare ups of her pain, worse in the
lower back, if she does any heavy lifting or other vigorous activity, or sits or
stands for any prolonged period. She says that her symptoms are much reduced or
minimal on weekends or on days when she does not work.

[94]        
The plaintiff says that her intimate relationship with Nigel Ward has
been negatively affected by her injuries.

[95]        
The plaintiff said that her pain symptoms have improved over time, but
said that there has been no improvement in the past few months before trial.
She says that her neck pain is not as often or as bad as her low back pain. The
plaintiff testified that she turned down work as a TOC at Port Alberni “a few
times”, because her back was too sore. She said she did this, by not answering
her telephone when she knew that School District 70 was calling to offer her
work.

[96]        
The plaintiff says that she can do regular housework chores, but cannot
do work in the garden.

[97]        
The plaintiff expressed doubt that she could work full-time as an
ordinary classroom teacher in Port Alberni, if she was offered a full-time
position by School District 70. She said that she is currently working about
70% of the time, and believes that she would have to stick to that amount of
work, even if her job did not require her to teach any physical education
classes.

[98]        
The plaintiff testified, with the aid of documentary evidence, that if
she was currently working as a full-time teacher, she would be earning about
$51,000 per year.

[99]        
The plaintiff seemed to concede that it was unlikely she would be able
to obtain work as a high school physical education teacher in the near future.
But she said that, even if she received such a job offer, she would have to
turn it down because she could not do the work required of such a teacher. She
said that she still holds out hope for further improvement.

Cross-Examination of the Plaintiff

[100]     Counsel
for the defendants first suggested to the plaintiff that she had made a
statement to Dr. Meyer on June 10, 2010 that was inconsistent with her trial
testimony. It was conceded on behalf of the plaintiff that Dr. Meyer had written
a note on June 10, 2010 to the effect that the plaintiff had told him that she
was back to work and was without pain in her neck or back. The plaintiff denied
making any such statement to Dr. Meyer.

[101]    
Defence counsel elicited testimony from the plaintiff to the effect that
her neck and back symptoms at the time she saw Dr. Reebye on November 14, 2012
were similar to the symptoms she had when she saw Dr. Adrian on August 8, 2012.
Defence counsel then established that the plaintiff had testified on
examination for discovery on October 10, 2012, as follows: (Q 344-346)

344      Q         And so you have had some further
improvement in, say, the             last six months?

 A          Yes.

345      Q         Even the last few months?

 A          Yes.

346      Q         So you are continuing to improve with
the low back.

 A          Improving,
but still pain.

[102]     When
confronted with her discovery evidence, the plaintiff seemed to concede that
her neck and back pain symptoms had improved in the two months between her
examination by Dr. Adrian and her examination for discovery. But she testified
that there had been no improvement in her symptoms, between the discovery on
October 10, 2012 and the trial (which started on January 21, 2013).

[103]     The
plaintiff had testified to the effect that she would not be capable of working full-time
as an ordinary classroom teacher, in Port Alberni. Defence counsel confronted
the plaintiff with the evidence given by Greg Jackson, which was to the effect
that the plaintiff should be able to work full-time as a normal classroom
teacher, without difficulty. The plaintiff said that she disagreed with that
opinion of Mr. Jackson, and said that she could not work more than 70% of
full-time as an ordinary class-room teacher. Her main reason for saying this
was the adverse effect of driving back and forth from Nanaimo to Port Alberni,
on her low back symptoms.

[104]      Counsel
for the defendants suggested to the plaintiff that her prior conduct indicates
that she had pursued training to qualify her to work with special needs children,
just as much or more than she had pursued training in physical education. The
plaintiff denied this suggestion and repeated that her goal was to teach
physical education in high school and that she had not switched her focus to
special needs education. She did acknowledge an interest in that field of work.

[105]    
The plaintiff had testified in direct examination that she had turned
down work as a teacher “a few times”, and it was implicit in her testimony that
she did this because her back was too sore. As mentioned, the plaintiff
testified that the way she did this was to not answer the telephone when she
knew she was being called to go to work in Port Alberni. Defence counsel then
established that the plaintiff had given the following testimony on discovery:

441      Q         Alright. You haven’t turned down any
opportunities because of             your back?

 A          Not
since the accident, no.

[106]     In an
attempt to explain this apparent inconsistency, the plaintiff seemed to suggest
that there was a significant difference between expressly “turning down” an
offer of work, and refraining from answering the telephone when her employer
was calling. But she acknowledged that the consequences would be the same, in
each case, that is, that she would miss work.

[107]    
The plaintiff had testified to the effect that she worked about 70% of
full-time as a teacher, between January 2012 and June 2012. She also said that
she did not feel capable of working more than 70% of the time. Defence counsel
then established that the plaintiff had given the following evidence on her
examination for discovery:

452      Q         Okay, so in January to June 2012 how
many day jobs did you             get with the school board?

A          I was called pretty
much every day. I think I counted five days that I didn’t get called in from
when I got hired on until May. And then May I got a contract job for the last
two months of school.

. . .

458      Q         So even though you are teacher on
call, you’ve essentially had             full-time work from January to June,
2012.

 A          Yes.

[108]     The
plaintiff acknowledged giving that evidence on discovery, but said that she had
since looked at the employment records of the school district, and discovered
that she had been mistaken about the number of days that she had worked from
January through June 2012. She said that she only worked every day in May and
June, and that in February, March and April she worked about 75% of full-time.
Finally, the plaintiff said that, when all of her work days were added up for
the six month period, she worked on average from 70% to 75% of the time.

[109]     Defence counsel
suggested to the plaintiff that she should consider moving to Port Alberni or
staying overnight a few times a week at her parent’s place in Port Alberni, so
as to avoid the low back pain caused by driving back and forth from Nanaimo to
Port Alberni on a daily basis. The plaintiff agreed that doing those things
would significantly reduce her episodes of low back pain, but took the position
that it was unreasonable to expect her to do either of those things. She said
her partner and now fiancé Nigel Ward has steady employment with the City of
Nanaimo. The plaintiff stated that they were making their home in Nanaimo. She
acknowledged that the chances were remote for her to obtain employment as a
teacher in Nanaimo due to the fierce competition.

[110]     The plaintiff
conceded that her best chance of obtaining full-time employment as a teacher
was with School District 70 in Port Alberni. She also agreed that she had a far
better chance of obtaining full-time employment as an ordinary classroom
teacher, than as a high school physical education teacher (because there are
far more classroom teachers than physical education teachers).

[111]     The
plaintiff had acknowledged in cross-examination that she had never had to stop
work while she was working in a classroom, due to back pain.

[112]     The
plaintiff testified to the effect that her episodes of low back pain are
ongoing, that her neck pain is “basically . . . resolved” and that her
headaches had disappeared long ago.

Re-Examination

[113]     In
re-examination, the plaintiff stated that if she received a job offer to work
as a full-time ordinary classroom teacher in Port Alberni, she would refuse
that offer. She said that the reason she would refuse is because she would have
to drive back and forth from Nanaimo to Port Alberni every day, which involved
two hours of driving, which caused pain in her lower back. She again stated her
reasons for not wanting to move to Port Alberni.

Nigel Ward

[114]     Nigel Ward
testified that he and the plaintiff started dating in 2008, that they were now
living together and that they were engaged to be married. He said the plaintiff
called him immediately after the motor vehicle accident had occurred on the
morning of May 5, 2010 and that he went to the scene of the accident right
away. By that time, the plaintiff was on a stretcher and was soon taken by
ambulance to the hospital.

[115]     Mr. Ward
recounted his conversation with Ms. Whiteley in the emergency waiting room at
the hospital, when she had told him: “I am sorry, it is my fault.”

[116]     Mr. Ward
said that he had been taking a bachelor’s degree program in physical education
at VIU, and that he and the plaintiff met while both were attending the
physical education program. He described the plaintiff as being a “really
active” person, and said that they engaged in numerous recreational and
athletic activities together including softball, hiking, biking and swimming.

[117]     He said
that when the plaintiff was working as a teacher on call in Port Alberni, she
would look to be exhausted and in pain when she got home at the end of the day.
He said that the plaintiff did not engage in any significant activities after
dinner when she was working, because she seemed to be too tired. He said that
the plaintiff had “up and down” days, depending on her level of activity. Mr.
Ward said that their sexual relationship was affected to some degree, which
frustrated the plaintiff. He said that this “caused some tension . . .  we
worked through it.”

[118]     Mr. Ward
testified that he had worked just over one and one-half years with the City of
Nanaimo. He said he had previously lived and worked in Campbell River. He said
he did not follow up with his earlier interests of being a teacher.

[119]     Mr. Ward
said that he and the plaintiff had discussed moving from Nanaimo to the Parksville
area so as to shorten the plaintiff’s drive to Port Alberni, but that they had
not come to any decision about this.

Karli Van Vliet

[120]     The
evidence of Ms. Karli Van Vliet was given by way of a statement of admitted
evidence.

[121]     Ms. Van
Vliet has known the plaintiff since they were in grade 10 together in high school
at Port Alberni. She has a Bachelor of Education degree with a major in
physical education and a minor in social studies. She is now in her sixth year
of teaching as a high school physical education teacher. She states that she
“created” her own job, to a significant degree.

[122]     Ms. Van
Vliet described the vigorous physical activities required of a high school
physical education teacher, and said that these activities and sports required
twisting, jumping, throwing, running, stooping, grabbing, flexing and rotating.

[123]     Ms. Van
Vliet believes that there is some prospect that one or more part-time jobs may
become available for high school physical education teachers in the near
future, because some teachers are approaching retirement age.

Dr. Mark D. Adrian

[124]     Dr. Adrian
is a specialist in physical medicine and rehabilitation. He was qualified to
give expert opinion evidence in this field, which included the assessment and
treatment of soft tissue injuries to the neck and back.

[125]     Dr. Adrian
examined the plaintiff at his office in Vancouver on August 8, 2012. He wrote a
report on that same date. He later wrote a supplemental report dated December
21, 2012, after being asked by plaintiff’s counsel to comment on some of the
statements made by Dr. Reebye in his report dated November 26, 2012.

[126]     The
plaintiff told Dr. Adrian that her left knee symptoms resolved within several
weeks after the accident, and that her headaches resolved within several months
thereafter. She said that her neck and lower back pain symptoms had improved to
the point where they occurred only intermittently, depending on the degree of
her activity. She told Dr. Adrian, in substance, that she experiences “ongoing
pain symptoms involving her neck and lower back that occur on a regular basis.”
The plaintiff said that she experienced lower back pain on most days, depending
on her activity levels and which could be triggered by prolonged sitting,
prolonged standing, prolonged stooping, and heavy lifting and prolonged
running. She said that her neck pain was less severe than her lower back pain,
and that the neck pain occurs approximately once or twice a week, depending on
her activity levels.

[127]     The
plaintiff described for Dr. Adrian the effects of her injury on her abilities
to perform the activities of daily living and recreational activities that she
had previously engaged in, in a manner consistent with her trial testimony. Her
description of her occupational history and her difficulties related to her job
of teaching in Port Alberni was similar to her trial testimony, except for the
fact that Dr. Adrian reported that she began working as a TOC in January 2011,
when in fact she started in January 2012, (this could have been due to a
mistake by the plaintiff, or to a typing error).

[128]    
The findings made by Dr. Adrian on his examination of the plaintiff
included the following (which are reported at page six of his main report):

Ms. Schafer has neutral alignment involving her neck,
thoracic and lumbar spine. She has full range of motion of her neck that is
pain-free. Tenderness is localized to the mid-cervical spinal segments.

She has full range of motion of
her thoracic and lumbar spine. She experiences lower back pain symptoms with
motion into backward bending (extension). Tenderness is present over the lowest
three lumbar spinal segments. There is no tenderness over the sacroiliac joints.
Faber’s sign is negative.

[129]     The
diagnosis given by Dr. Adrian in his main report was (my summarizing):

a)    The accident of
May 5, 2010, caused injury to the musculoskeletal structures of the plaintiff’s
neck and low back.

b)    The damage to
these musculoskeletal structures has caused and continues to cause her pain,
which may be described as chronic mechanical neck and lower back pain.

c)     The
plaintiff’s lower back pain symptoms are more dominant than her neck pain
symptoms.

[130]    
As to his prognosis, Dr. Adrian stated the following at page 8:

In Ms. Schafer’s situation, over
two years have elapsed since the accident date. The prognosis for further
recovery of her spinal symptoms over time is poor. It is unlikely the injuries
suffered in the motor vehicle accident will undergo progressive deterioration
over time.

[131]    
Dr. Adrian also stated that the plaintiff:

. . . will probably continue to
experience difficulty performing employment, recreational, or household
activities that involve prolonged sitting; prolonged standing; prolonged
stooping; heavy or repetitive lifting; or impact activities. These physical
limitations are unlikely to resolve over time. Ms. Schafer is partially
disabled as a result of the injuries suffered in the motor vehicle accident.

[132]    
Dr. Adrian’s final opinion relating to the prognosis is as follows:

In my opinion, there are no
medical contra indications for Ms. Schafer to work full-time until the age of
65. As indicated above, however, she will probably experience difficulty
performing employment activities that require the above – listed physical
components.

[133]     As to
recommendations for further investigations and treatment, Dr. Adrian did not
recommend further investigations but did recommend an exercise program for the
plaintiff, with the involvement of a personal trainer. He said that the
frequency of supervision could be reduced and eventually discontinued over
time, which he suggested would be three to six months.

[134]    
Finally, Dr. Adrian expressed the following opinion:

Ms. Schafer is vulnerable to experiencing
ongoing periodic temporary flares of her symptoms into the future. If she
suffers a flare of her symptoms in the future that does not resolve in a timely
manner (days to weeks), she may benefit with periodic physical therapy
treatments with goals of reducing the intensity and duration of the flare.
Whether she experiences flares of this degree into the future remains to be
seen.

[135]     In his
supplemental letter dated December 21, 2012, Dr. Adrian commented on certain of
the statements made by Dr. Reebye in his report. I consider the following additional
comments of Dr. Adrian to be the most significant:

a)   
With respect to Dr. Reebye’s statement to the effect that the plaintiff
should be able to develop better coping strategies, Dr. Adrian’s comment
included the following:

. . . It is unlikely that further
healing into the future will occur. In other words, these damaged spinal tissues
will continue to be painful indefinitely. In terms of coping strategies, that
is a consideration which should be deferred to a psychiatrist or psychologist.

b)   
As to Dr. Reebye’s recommendation that the plaintiff should incorporate
water-based therapy and water running into her exercise program (to increase
her running tolerance), Dr. Adrian agreed that water therapy is a suitable exercise
but he stated that:  “It will not cure Ms. Schafer’s pain symptoms.”

[136]     Dr. Adrian
had previously been requested by defence counsel to attend at trial for
cross-examination. But during the trial, that request was withdrawn, and Dr. Adrian
was not cross-examined about his opinions or the reasons relied on to support
his opinions.

Greg Jackson

[137]     Greg
Jackson is an occupational therapist and functional capacity evaluator. He
performed a functional capacity evaluation of the plaintiff on October 17 and
18, 2012. He prepared a report dated October 24, 2012. Mr. Jackson was well
qualified to give expert opinion evidence in the field of functional capacity
evaluation.

[138]     Based upon
direct clinical observation, clinical testing and testing outcomes, personal
interview information and his experience as an occupational therapist, Mr.
Jackson expressed the following opinions relating to the plaintiff’s physical
functional abilities and her physical functional limitations (my paraphrasing
except where quotations are included):

a)    His clinical
findings indicate that the plaintiff’s subjective reports of abilities and
limitations were both reasonable and reliable.

b)    The plaintiff
had a sitting tolerance of one hour and twelve minutes, a static standing
tolerance of 34 minutes and a tolerance for being on her feet for two hours and
ten minutes.

c)     The
plaintiff could crouch and kneel, but had little tolerance for working with her
arms in front of her from either of those positions. Her stooping tolerance was
limited to about 30 to 50 seconds at a time, and “were highly symptom
provocative.”

d)   
The plaintiff:

“. . . is able to meet most
physical/functional requirements of elementary and secondary school teachers.
The most profound limiting factor for classroom work would be sitting tolerance.
However, this limitation could very likely be overcome by exercising postural
freedom within the classroom setting and through use of ergonomic devices for
paperwork. . . .”

e)   
With respect to the occupation of a high school physical education
teacher (which requires physical activities similar to those required by the
occupation of program leader and instructor in recreation and sport), the
plaintiff “is able to meet most physical/functional requirements of that
occupation,” with certain limitations and difficulties. But:

“This is not to suggest Ms.
Schafer is completely disabled in her ability to work as a physical education
teacher. However, she will have to be careful in her specific chosen
occupational path and the level of participation of instruction/demonstration
she participates in. Movements, activities, loading patterns, and possibly
postures that she will be exposed to in her work will more than likely result
in symptom response. Dependent upon the level of symptom response, short-term
absenteeism from work may result.”

f)     
Commuting to and from Port Alberni requires sitting for a considerable
length of time, and this “is symptom provocative for her.”

[139]     It appears
from Mr. Jackson’s report (Appendix B, page 11) that the plaintiff told him she
could drive continuously for 30 minutes, without experiencing pain in her low
back.

[140]     Mr.
Jackson was cross-examined on his report.

[141]     Mr.
Jackson was asked to explain the pain scale (from 1 to 10) that he used to
identify the degree or intensity of the pain that the plaintiff had claimed to
be experiencing. He said that Level 5 is required in order to disable a person
from working, and that the plaintiff did not report any pain that translated
into that high of a level on the pain scale. He noted that on the follow-up
evaluation of October 19, 2012, the plaintiff was reporting pain levels of two
for her low back and one for her neck. Mr. Jackson agreed that the plaintiff’s
reported pain level of three in her low back at the start of the first day
could be explained by her driving from Nanaimo to Victoria that morning. He
also noted that, after the plaintiff had stayed overnight, her reported pain
levels for both her low back and neck (at the start of the second session) were
only at the number one level.

[142]     On being
questioned by defence counsel about the plaintiff’s working capacities, Mr.
Jackson expressed the opinions that the plaintiff was capable of working full
time as an ordinary classroom teacher; and that she might be able to work full
time as a physical education teacher, although she would have difficulties
doing so.

[143]     Mr.
Jackson agreed with the suggestion of defence counsel that the plaintiff’s
subjective reporting of her tolerance for standing still (15 minutes) was
considerably less than her demonstrated capacity on testing (34 minutes). He
also stated that the plaintiff’s subjective reported lifting ability (20
pounds) was less than her demonstrated ability on testing (40 pounds), but
added the qualification that such heavier weights had to be handled very close
to her body.

Dr. Rajiv Reebye

[144]     Dr. Reebye
gave evidence for the defence on the issue of damages. He, like Dr. Adrian, was
eminently qualified to give expert opinion evidence in the field of physical
medicine and rehabilitation.

[145]     Dr. Reebye
examined the plaintiff in his office at New Westminster on November 14, 2012. His
report is dated November 26, 2012.

[146]     The
plaintiff complained to Dr. Reebye that she was experiencing low back and
mid-back pain, and neck pain. She described the positions and activities that
bring on or aggravate her pain symptoms, in a manner which was generally
consistent with her trial testimony. Arguably there was a discrepancy between
what she told Mr. Jackson about her driving tolerance (30 minutes) and what she
told Dr. Reebye (15 to 20 minutes); and her statement to Dr. Reebye to the
effect that “driving more than one hour can increase her left, lower-back pain”
(page 11).

[147]     The
findings made by Dr. Reebye on his examination of the plaintiff included pain
on palpation of the para-spinal musculature in the plaintiff’s lower back, and
pain on palpation of the right and left upper trapezius musculature. He
provoked no pain on palpation of the thoracic para-spinals and no pain on
spinous processes in the cervical, thoracic or lumbar regions.

[148]     Having
taken a history from the plaintiff and having conducted his physical
examination and a review of the relevant documents, Dr. Reebye expressed the
following opinions (my summarizing, except where quotes are included):

a)    He agrees with
Dr. Adrian’s opinion that the plaintiff suffered injuries to her neck and lower
back from the accident of May 5, 2010, resulting in mechanical neck and
lower-back pain symptoms which have become chronic.

b)    He agrees with
Dr. Adrian’s opinion that the prognosis for further recovery of the plaintiff’s
low back pain symptoms over time is poor. But Dr. Reebye believes that the
plaintiff could develop better coping strategies for her pain symptoms in the
future.

c)     Dr. Reebye
agrees with Dr. Adrian’s opinion that it is unlikely that the injuries suffered
in the motor vehicle accident will undergo progressive deterioration over time.

d)    He agrees with
Dr. Adrian’s opinion that the plaintiff is partially disabled as a result of
her injury in that she has physical limitations, namely, difficulty sitting or
standing for extended periods, difficulties lifting (and working with) greater
than 15 pounds, inability to play sports such as volleyball and difficulty in
increasing her running distances. Dr. Reebye says that these limitations are
caused by her chronic neck and low back pain symptoms and they affect her
quality of life.

e)    In the future, the
plaintiff will likely have increases in her pain symptoms in her neck and low
back with activities involving prolonged sitting, heavy or repetitive lifting
and impact activities.

f)      Dr.
Reebye agrees with Greg Jackson’s opinion that the plaintiff is not completely
disabled in her ability to work as a physical education teacher.

g)    The plaintiff,
“will likely have to live with an element of chronic pain symptoms but I am of
the opinion that she will be able to develop better coping strategies from her
exercises and possibly modifications of her work setting.”

h)    If the plaintiff
increases her working hours, then this may increase her pain symptoms which in
turn may require her to modify her work schedule or work environment.

i)      
The plaintiff “will not be totally disabled from her neck and low back
pain symptoms in that she will be able to continue working as a teacher even if
she were to increase her work hours. I do not expect her to take periods of
time off work secondary to her pain symptoms.”

“Modifications in her job such as
obtaining an employment closer to her home with a reduction of driving times
and a teaching job not requiring increased physical demands will likely reduce
some of her pain symptoms and help her better cope with her pain symptoms.”

[149]     Part of
Dr. Reebye’s prognosis is contained in the opinions which I have just set out.
At page 5 of his report, Dr. Reebye lists the limitations on the plaintiff’s
activities which he believes will continue to occur in the future. These
limitations are similar to those described by the plaintiff in her trial
testimony.

[150]    
Dr. Reebye states (at page 5) that:

. . . Ms. Schafer will continue to improve with regard to
coping with her pain symptoms with her ongoing exercises but she will also need
to incorporate water-based exercises to offload some of her pain symptoms so
that she can progress with her land-based running activities.

Ms. Schafer may, however, be limited in participating in some
of her sports such as volleyball, softball, and running long distances, as
these activities may aggravate her neck and low back pain symptoms.

. . .

Ms. Schafer may have flares of
her back and neck pain with increased demands at work and at home with overhead
activities, lifting heavier objects greater than 15 pounds or with increased
demands of standing and walking in the classroom.

[151]    
Dr. Reebye goes on to state (at page 6) that the plaintiff would benefit
from ergonomic changes to her work station and that some of her pain symptoms
would decrease if she were to find a teaching job closer to her home. At the
conclusion of the main part of his report (at page 6) Dr. Reebye gave this
opinion:

. . . I feel that with support in
her work environment, she will do well continuing with her work as a teacher.

[152]     Dr. Reebye
was cross-examined extensively on his report. He was unable to attend court in
person due to weather conditions as so he testified by way of video
conferencing.

[153]     Although
the cross-examination was extensive, in my opinion only a few points were made
which affected the opinions that he had given in his report. I will summarize
his evidence on those points.

[154]     I
understood Dr. Reebye to agree with plaintiff’s counsel’s suggestions that
exercise will not cure the plaintiff’s low back pain nor the underlying injury,
but will only help to reduce the pain and thereby help the plaintiff to cope
with the pain. Water running was included in the exercises being referred to.

[155]     Counsel
for the plaintiff challenged Dr. Reebye’s opinion as to the plaintiff’s ability
to work as a physical education teacher. Dr. Reebye said that he had believed
that the plaintiff “is a phys-ed teacher by trade,” but acknowledged that he
did not know the exact job description for a physical education teacher. The
doctor allowed that it was possible that the plaintiff will have to take time
off in the future due to low back pain but testified that it was “more likely
than not” that she will not miss work as a teacher due to low back pain. One of
the facts he relied on in forming that opinion was the plaintiff’s statement to
him to the effect that she had not missed any teaching work, even though she
had to travel long distances on each day that she worked.

[156]     Dr. Reebye
agreed that increasing the plaintiff’s working hours, if accompanied by vigorous
activities in teaching physical education, would cause increased pain to the
plaintiff. He agreed that increased pain would make it more difficult for the
plaintiff to continue working, but he did not agree that increasing her working
hours would increase the likelihood that she would have to miss work
occasionally due to low back pain.

[157]     At one
point in the cross-examination, counsel for the plaintiff suggested to Dr.
Reebye that his opinion would change to some extent, if the plaintiff had
missed work (as a teacher) in the past due to low back pain and Dr. Reebye
agreed with that suggestion.

The Issue of Credibility

[158]     Defence
counsel does not challenge the plaintiff’s honesty. But he submits that the
plaintiff’s testimony on several issues is not reliable and should not be
accepted at face value. The defence challenges the plaintiff’s assertions that
she could not work full time as an ordinary classroom teacher. It is also
argued that the plaintiff’s refusal to relocate to Port Alberni (or move to a
location closer to Port Alberni), even in the event that she is offered a
full-time teaching position (as a classroom teacher) is unreasonable, and
amounts to a failure to mitigate her injury.

[159]     Defence
counsel does not challenge the credibility of Nigel Ward or Karli Van Vliet
(but does not accept Ms. Van Vliet’s evidence as to the prospects for work as a
physical education teacher).

[160]     The
defence does not challenge the opinions given by Dr. Adrian on grounds of
credibility but it is implied that his opinion that further improvement is
unlikely, is weakened, because the plaintiff admitted to significant
improvement in her condition in the two months following her examination by Dr.
Adrian.

[161]     The
defence not only did not challenge the opinions given by Greg Jackson, but his
opinions were relied on to a significant extent.

[162]     Counsel
for the plaintiff challenged the opinions given by Dr. Reebye, to the extent
that they were inconsistent with the opinions expressed by Dr. Adrian.

The Credibility of the Plaintiff

[163]     There are
several matters that have the potential to adversely affect the credibility of
the plaintiff’s evidence relating to the effects of her injury on her ability
to work as a teacher.

[164]     First, the
plaintiff made a number of statements on her examination for discovery that were
said to be inconsistent with her trial testimony on the same subjects.

[165]     There is
an inconsistency between the plaintiff’s trial testimony to the effect that her
symptoms were similar on August 8, 2012, (when she saw Dr. Adrian) and on
November 14, 2012, (when she saw Dr. Reebye); and her testimony on discovery to
the effect that she had experienced improvement in her symptoms in the few
months before her examination for discovery. There is a discrepancy here but
“similar” is not equivalent to “exactly the same.” As a consequence, I would
place little weight on this inconsistency. But there was another inconsistency
between the plaintiff’s trial testimony (on direct) that there had been no
improvement since the discovery, and her trial testimony (on cross) that her
neck pain had resolved.

[166]     There is
inconsistency between the plaintiff’s testimony on discovery to the effect that
she had not turned down any work opportunities since the accident, and her
trial testimony to the effect that she turned down some work by not answering
her phone when she knew her employer was calling. I find the plaintiff’s
explanation for this discrepancy to be inadequate. The plaintiff had to know
that the lawyer questioning her at the discovery wanted to know whether she had
missed any work, due to her pain symptoms. That is an important issue.

[167]     The
plaintiff denied telling Dr. Myer on June 10, 2010, that she was back to work
and had no pain in her neck or back. The doctor was not called to give
evidence. As a consequence, it has not been established that the plaintiff made
the alleged inconsistent statement.

[168]     I was not
persuaded that the plaintiff’s conduct in pursuit (and further intended pursuit)
of training in special needs education was inconsistent with her professed goal
of teaching physical education in high school.

[169]     There was
an inconsistency between the plaintiff’s discovery evidence to the effect that
she had worked almost full time during the period from January to June 2012,
and her trial testimony to the effect that she had worked about 70% of the
time. I accept her explanation, and find that she was mistaken in giving her
discovery evidence and that she found this out after reviewing her employment
records. The inconsistency might well have been material, if the records had
shown that the plaintiff worked almost 100% of the time, whereas the plaintiff
was insisting she could only work 70% of the time.

[170]     The
plaintiff firmly disagreed with the opinion of Greg Jackson who said, in
effect, that she had the capacity to work full time as an ordinary classroom
teacher. Dr. Adrian gave a similar opinion on this subject. These were
witnesses called by the plaintiff, and she has given evidence which is
inconsistent with their opinions on an important subject. The defence expert,
Dr. Reebye, expressed the opinion that the plaintiff was capable of working
full time as a teacher. In my opinion, this inconsistency diminishes the
reliability of the plaintiff’s assertion that she cannot work full time as an
ordinary classroom teacher.

[171]     The
plaintiff’s demeanour when giving evidence was good. She conveyed the
appearance of a person who believed in the truth of what she was saying. The
defence did not challenge her apparent honesty and I find that she was honest
in giving her testimony. However, as a result of the concerns which I have
described in some of the preceding paragraphs, I have doubt about the
reliability of some of the evidence given by the plaintiff at trial, and in
particular her testimony relating to her capacity to work as an ordinary
classroom teacher.

The Reliability of the Evidence of the Lay Witnesses

[172]     No
challenge was made to the honesty of Nigel Ward or Karli Van Vliet. It was not
suggested that any of Mr. Ward’s evidence was unreliable, and I accept his
evidence. Mr. Ward’s evidence confirms the plaintiff’s trial testimony to some
extent, on the issue of the effects of the plaintiff’s injury on her ability to
engage in her previous physical activities.

[173]     I accept
generally the evidence given by Karli Van Vliet, except for the opinion she has
expressed relating to the likelihood of the plaintiff being offered part-time
employment as a high school physical education teacher. It seemed to me that
her evidence on this point was projecting only a possibility.

The Reliability of the Opinions of Dr. Adrian and Greg Jackson

[174]     There was
no direct challenge to the opinions expressed by Dr. Adrian. I accept that the
opinions he expressed based on his examination of the plaintiff on August 8,
2012 were valid and reliable at the time they were given. But the plaintiff has
admitted that there was significant improvement in her neck and back pain
symptoms, in the months after she was examined by Dr. Adrian. I think the fact
of further improvement (which was of course unknown to Dr. Adrian) should be
considered in assessing the likelihood of further improvement in the future.

[175]     As
mentioned, the defence did not challenge the opinions given by Greg Jackson. I
accept the opinions he has expressed including those which relate to the
plaintiff’s capacity to work full-time as an ordinary classroom teacher.

The Expert Opinion Evidence given by Dr. Reebye

[176]     Counsel
for the plaintiff challenged the reliability of several of the opinions given
by Dr. Reebye. But the doctor did not resile from any of the essential opinions
that he had given in his report. Moreover, he had previously agreed with many
of the opinions expressed by Dr. Adrian, and in cross-examination he did not
expressly disagree with any of Dr. Adrian’s opinions.

[177]     I think
Dr. Reebye did concede, on cross-examination, that the plaintiff (if working
full time) might experience flare-ups of her low back symptoms in the future,
which could possibly cause her to miss work as a teacher. That was the main
(and perhaps the only) inroad made by plaintiff’s counsel on his lengthy
cross-examination of Dr. Reebye. I think this concession was made on the
assumption that the plaintiff would be teaching as an ordinary classroom
teacher. But Dr. Reebye stated that, although possible, it was “more likely
than not” that the plaintiff would not have to take time off work.

[178]     When Dr.
Reebye gave his opinions, the plaintiff was still complaining of some
intermittent neck pain symptoms. At trial, the plaintiff conceded that her neck
pain had now basically resolved. I think that fact must also be considered when
assessing the chance that the plaintiff’s condition may improve in the future.

What Amount of Damages should be Awarded to the Plaintiff for Non-pecuniary
Loss?

[179]     There is
no dispute about the nature of the injuries sustained by the plaintiff as a
result of the accident. She suffered minor injuries to her left knee and to her
face, and experienced some headaches. These injuries, and the headaches, had
resolved within a month or so after the accident.

[180]     I find
that the plaintiff sustained injury to the soft tissues of the musculoskeletal
structures of her neck and lower back. The injury to these structures has
caused pain in the plaintiff’s neck and low back. By the time of trial, the
plaintiff’s neck pain symptoms had resolved, but she continues to experience
pain in her low back on an intermittent basis.

[181]     I find
that the impact of the collision was violent and that the forces exerted on the
plaintiff’s body were capable of causing, and did cause significant injury.
Although the medical experts did not offer an opinion as to the severity of the
injury, I find that the injury was at least moderate in severity.

[182]     The
effects of the injury on the plaintiff’s life have been significant up to the
time of trial. I find that the plaintiff was disabled from working for about
one month after the accident, as a result of the pain caused by her injury.
During that first month, the injury prevented the plaintiff from engaging in any
of the recreational and athletic activities that she had done before the
accident. Thereafter, the plaintiff gradually resumed some of her former
physical activities, such as softball, soccer and running. But she has not been
able to do these activities as strenuously as she had done them previously. She
has not even attempted to resume a number of her former activities, for fear of
aggravating her low back pain.

[183]     I am
reluctant to find that the plaintiff is not capable of resuming some of her
activities (such as basketball, snowboarding and skiing). But I do not fault
the plaintiff for refraining from engaging in these vigorous activities, for
fear of triggering low back pain. Since she has been such an active person, it
seems likely that she will attempt to engage in some of these activities in the
future. But if she does, it seems unlikely that she will ever be able to do
them with the intensity she applied in the past.

[184]     The
plaintiff is able to do the regular housework required of her. But she is not
able to do any of the gardening and yard work that would be described as heavy.

[185]     The
plaintiff’s pain symptoms have had some adverse effect on her ability to
maintain the sexual relationship with Nigel Ward, that she had in the past.

[186]     Since
January 2012, the plaintiff has been working as a substitute teacher on call,
in Port Alberni, about 70 to 75% of full time work. She says that, for a number
of years, she has wanted to become a high school physical education teacher.
But the plaintiff says that she believes she would not be capable of doing the
physical activities required of such a teacher, at least not on a full-time
basis. I accept the plaintiff’s evidence on this issue. I find that she is
presently incapable of working full-time as a high school physical education
teacher, due to her low back condition. If she were offered a job as a
full-time high school physical education teacher, I think it would be
unreasonable to expect her to accept that job. On the other hand, the chances
that she will be offered such a position in the foreseeable future, seems
remote.

[187]     The
plaintiff has testified that she would not be capable of performing the work
required of an ordinary classroom teacher, on a full-time basis. She says she
cannot do more than work about 70% of the time, and that she would refuse any
offer of a full-time position as an ordinary classroom teacher.

[188]     I do not
accept the plaintiff’s trial testimony to the effect that she has missed “a few
days” work as a teacher since the accident. I find that, as she testified on
discovery (and as she told Dr. Reebye) she has not missed any work
opportunities due to low back pain.

[189]     I do not
accept the plaintiff’s testimony to the effect that she is incapable of
performing the work required of an ordinary classroom teacher, on a full-time
basis. Her evidence is inconsistent with the opinion evidence given by Dr.
Adrian, Greg Jackson and Dr. Reebye. I accept that she would experience some
difficulties in doing that work full-time. But it appears that the main
difficulty would be caused by the two hours driving to and from Port Alberni
each day. It seems to me that whether or not she would continue with this long
distance commuting if she obtained a full-time teaching position is a matter of
choice for the plaintiff. The difficulties caused by sitting or standing in the
classroom for lengthy periods of time can be reduced (but not eliminated) by
taking the steps suggested by the expert witnesses.

[190]     The
plaintiff’s ongoing intermittent back pain will continue to impair her ability
to engage in her former recreational activities. The extent of this
interference will continue to be significant. But I infer that her ability to
resume some of her former activities with more intensity would be increased, if
she decided to take steps to reduce her driving time for her employment.

[191]     I find
that the plaintiff has taken reasonable steps in an effort to improve her
condition. Notwithstanding this, she continues to experience intermittent
episodes of low back pain and these episodes will continue to occur in the future,
for an indefinite period of time. But I find that there is a substantial
possibility that the plaintiff will continue to experience improvement in her
condition, in the future. The opinions of Dr. Adrian and Dr. Reebye to the
effect that the prognosis for further significant improvement is poor,
should be accepted. But I think their outlook for the future would have been
less pessimistic, had these doctors known that the plaintiff’s low back pain
had improved, and her neck pain had resolved, during the period from August
2012 up until the time of trial. Moreover, the plaintiff is strongly motivated
to improve her condition, and expressed a positive and hopeful attitude in this
regard.

[192]     Nevertheless,
the plaintiff has incurred a considerable amount of pain and suffering and loss
of enjoyment of life up to the time of trial, and will continue to incur such
effects in the future. She must be fairly compensated for the substantial
non-pecuniary loss that she has sustained and will continue to sustain. It seems
unlikely that she will ever be able to pursue the career that she had wanted
most of all. She is a person who enjoyed vigorous physical activity and, I
infer, she took pride in her ability to engage in these activities.

[193]     Counsel
for the plaintiff cited Stapley v. Hejslet 2006 BCCA 34 at para. 46,
where the court set out a list of factors that trial judges should consider
when deciding the amount of an award for non-pecuniary damages. I have already considered
all of those factors in making my findings of fact, except for one. Plaintiff’s
counsel made reference to the principle that a plaintiff’s stoicism in handling
pain and disability should not be held against him or her. I accept that
submission. To some extent, it may be said that the plaintiff has demonstrated
stoicism when dealing with the pain from her injury, for example by driving
from Nanaimo to Port Alberni and return, on each day that she works.

[194]     Counsel
for the plaintiff submitted that the plaintiff should be awarded an amount
between $90,000 and $110,000 for non-pecuniary loss. He referred the court to
several authorities which he argued supported an award in this range.

[195]     Counsel
for the defendants submitted that a fit award for damages for non-pecuniary
loss would be in the range of $50,000 to $60,000. He cited five case
authorities in support of that position.

[196]     I find it
unnecessary to review the cases referred to by counsel on this issue. Every
case must be decided on its own facts, and there are always significant
differences, even between cases that are somewhat similar. No two plaintiffs
will ever be the same in age, previous state of strength and health, occupation
and other activities. The injuries sustained by one plaintiff will never be the
same as those incurred by another, in kind or severity, and the reaction of any
two persons to the pain of a similar injury or to a particular treatment will
rarely be the same. Other differences can include the apparent length of the
recovery period and, if the plaintiff has not recovered, the kind and extent of
residual effects remaining from the injury at the time of trial and whether any
of the effects will be permanent.

[197]     In my
opinion, having regard to the facts I have found, a fair and reasonable amount
of damages for non-pecuniary loss would be $70,000, and I order that the
plaintiff be awarded that amount under this head of loss.

What Amount of Damages should be Awarded for Past Wage Loss?

[198]     The
parties agree that the plaintiff should be awarded $2,000 for past loss of
income. That will be the amount of the award for this claim of the plaintiff.

Should any Award of Damages be made for Loss of Future Earning Capacity,
and if so, in What Amount?

[199]     The
leading case on the subject of damages for loss of future earning capacity is Perren
v. Lalari 2010 BCCA 140. Counsel agreed that this was the leading case, but
counsel for the plaintiff argued that a trial judge may still decide the issue
of entitlement for damages for loss of future earning capacity, by reference to
the four factors originating in Brown v. Golaiy (1985), 26 BCLR (3d) 353
(S.C.). Mr. Huntsman also contended that this was the method that the court
should use in this case, to decide the issue of entitlement.

[200]    
Counsel for the defendants relied on the principles stated in Perren
v. Lalari, and in particular on paragraph 32 which, stated in part:

A plaintiff must always
prove . . . that there is a real and substantial possibility of a future event
leading to an income loss. If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earnings capacity, either on an earnings
approach . . . or a capital asset approach . . .

[201]     Plaintiff’s
counsel relied on statements made by judges of this court in MacKenzie v.
Rogalasky 2011 BCSC 54 (Ker J.) and Miller v. Lawlor 2012 BCSC 387
(MacKenzie J.) as support for his position.

[202]     I think
that certain statements made by the trial judges in each of those two cases, if
read in isolation, appear to support the submission of counsel for the
plaintiff. However, when the reasons are read in context, it is my opinion that
those judges also stated the correct test for entitlement, as established in Perren
v. Lalari. That is the test that must be applied. If, in either of those cases,
the trial judge at some point misstated the test for entitlement, it is my
opinion that he or she effectively applied the correct test, in deciding that
issue.

[203]     It is
apparent that the test for proof of entitlement to an award of damages for loss
of future earning capacity requires a plaintiff to prove two factual elements,
namely:

a)    There is a
substantial possibility that a future event adverse to the plaintiff will
occur; and

b)    There is a
substantial possibility that, if that event does occur, it will cause a loss of
income to the plaintiff (by reason of the injury caused by the defendant).

[204]     In this
case, the plaintiff submits that there are three potential future events
adverse to the plaintiff that may occur, namely:

a)    The plaintiff
might be offered a job as a full-time high school physical education teacher in
Port Alberni (which she is not capable of doing).

b)    The plaintiff
might be offered a job in another location such as Courtenay as a full-time
ordinary classroom teacher (which she could not accept because of the low back
pain which would be caused by the even longer commute).

c)     The
plaintiff might be offered a job in Port Alberni as a full-time ordinary
classroom teacher (which she could not reasonably be expected to accept due to low
back pain which would be caused by the increased hours of work and by the two
hours of daily driving that would be required. In the alternative, if she
should accept, she would have to miss work, from time to time, due to low back
pain).

[205]     Counsel
for the plaintiff submits that the chance that each of those three future
events will occur, is a real and substantial possibility. Counsel then submits
that, if any one of those events does occur, there is a substantial possibility
that the event will cause a loss of income to the plaintiff.

[206]     Counsel
for the defendants submits that (except perhaps for the possibility of a job
offer as a full-time ordinary classroom teacher in Port Alberni) the future
events postulated by the plaintiff are mere possibilities and that there is no
substantial possibility that any of them will occur. In the alternative, Mr.
Hutchinson submitted that even if there is a substantial possibility that the
plaintiff will be offered a full-time position as an ordinary classroom teacher,
then the possibility that increasing her working hours from 70% or 75% to 100%
of full time will increase her low back pain to the point where she will have
to take time off work, does not amount to a substantial possibility. Counsel
argued that therefore, that event, if it occurred, would not result in a loss
of income.

[207]     In my
opinion, the chance that the plaintiff will be offered a full-time position as
a high school physical education teacher in Port Alberni in the foreseeable
future does not rise to the level of a substantial possibility. As I see it,
the same applies to the chance that she might be offered a full-time teaching
job in Courtenay.

[208]     However,
in my view, the facts in this case do establish a substantial possibility that
the plaintiff will be offered a full-time position as an ordinary classroom
teacher in Port Alberni, in the foreseeable future. I am also of the opinion
that, if she is offered such a full-time position and accepts it, there is a
substantial possibility that she will occasionally experience flare ups of her low
back pain symptoms, some of which episodes may require her to take a day off
work.

[209]     Greg
Jackson opined that the plaintiff might miss work in the future, but he
appeared to be assuming that the plaintiff would be working as a physical
education teacher. Dr. Reebye allowed, in cross-examination, that it was
possible that the plaintiff would miss work in the future due to flare-up
episodes, but he said it was “more likely than not” that she would not miss
work for this reason. However, I think this opinion leaves room for the
co-existence of a substantial possibility. Dr. Adrian noted difficulties that
the plaintiff would experience with some aspects of teaching work, but did not
offer any clear opinion on the point at issue.

[210]     If the
plaintiff suffers a pain episode that requires her to take time off, there is a
substantial possibility that she will incur a loss of income as a result of
missing work. It may be that full-time teachers are allowed one or more “sick
days” per month, which, if the teacher’s absence is supported by a doctor’s
letter, would not result in a deduction from the teacher’s salary. If that was
so, the sick-day allowance might well cover any future absences of the
plaintiff, made necessary by a flare up of her low back pain. However, there is
no evidence in this case to prove any terms of the collective agreement between
School District 70 and the teachers employed by the school district.

[211]     I conclude
that the plaintiff has established a “substantial possibility of a future event
leading to an income loss.”

[212]     It is
impossible to predict with any degree of certainty how often the plaintiff, working
full-time as an ordinary classroom teacher, would suffer a flare up of her
symptoms; or, if she did, whether the flare up would be serious enough to cause
her to take a day off work. It might occur once a month, or even less often. It
seems to me that the chance that the plaintiff will incur a loss of income in
the future due to her injury, on any regularly occurring basis, is quite small.

[213]     Another
complicating factor is that the possibility that the plaintiff will miss work
due to flare ups in the future would be increased considerably if she would be
driving a motor vehicle for two hours each day. That, of course, aggravates her
low back symptoms. According to what she told at least one of the experts, and
on her trial testimony, the plaintiff can drive for 30 minutes continuously
without aggravating her lower back. If she moved to Port Alberni, or even to
Parksville or Errington, it would appear that commuting to and from work would
no longer be a source of such aggravation of her symptoms.

[214]     On looking
at all of the circumstances of this case, including the evidence given by the
plaintiff and Nigel Ward, I think there is some possibility that they may move
their place of residence to accommodate the plaintiff in this way, should she
be offered a full-time teaching position in Port Alberni. But on the evidence,
I am unable to say that this is a substantial possibility at the present time,
while the plaintiff is only a substitute teacher. Thus, there remains the
possibility that the plaintiff might experience a serious flare-up of her
symptoms, even while she is only working about 75% of the time. But I infer
from her work history that this possibility is remote.

[215]     The
evidence establishes that if the plaintiff was working full time as a teacher
she would earn about $51,000 per year. The salary would be the same, whether
she was working as a physical education teacher or an ordinary classroom
teacher.

[216]     Counsel
for the plaintiff submitted that the amount of this award should be assessed
using the method of the “capital asset” approach, rather than the “earnings”
approach. I agree with this submission.

[217]     The four
factors to be considered when applying the capital asset approach are:

a)    Whether the
plaintiff has been rendered less capable over all from earning income from all
types of employment;

b)    Whether the
plaintiff is less marketable or attractive as an employee to potential
employers;

c)     Whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might have otherwise been open to him or her, had he or she not been
injured; and

d)    Whether the
plaintiff is less valuable to himself or herself as a person capable of earning
income in a competitive labour market.

[218]     On the
facts of this case, it is my opinion that all of these issues should be
answered in the affirmative with respect to the plaintiff. The plaintiff has
not lost any income during the year that she has been working part time as a
teacher in Port Alberni. But that fact has only limited relevance to this
issue. She is yet to be tested for full-time work.

[219]     Plaintiff’s
counsel suggested that the court should use the method adopted in several case
authorities where awards were determined by taking “one or more years” of the
plaintiff’s projected annual income. Here, counsel submits that the plaintiff
should be awarded the sum of $204,000, which would be four years of her annual
salary as a full-time teacher. In my opinion, the evidence does not support
that approach.

[220]     As stated,
the first position of counsel for the defendants was that the plaintiff had not
proved entitlement to an award for loss of future earning capacity (because she
had failed to prove a substantial possibility of a future event leading to an
income loss). The alternative position of the defendants was that any award
should be modest, and well below the $50,000 range, because of the relatively small
percentage chance that a loss of income would occur. I agree with this
submission

[221]     The court
must take into account the positive and negative contingencies. The assumptions
upon which an award is based may prove to be wrong. There may be an improvement
in health, an opportunity for advancement, a decline in the economy and loss of
employment, as well as the usual chances and hazards of life. Ultimately, the
award must be one that is fair and reasonable in all of the circumstances of
the particular case. See Reilly v. Lynn 2003 BCCA 49 at para. 101.

[222]     I have
found that the plaintiff’s capital asset (i.e. her capacity to earn income in
the future) has been diminished by the injury caused by the defendant’s
negligence. The degree or extent of this reduction is significant but not substantial.
In my opinion, the award that would be a fair and reasonable compensation for
the plaintiff’s loss is $30,000. The plaintiff shall recover $30,000 for this
aspect of her claim for damages.

What Award should be made for Special Damages?

[223]     The
parties agree that the plaintiff has properly incurred expenses of $1,382.47 up
to the time of trial. That will be the award for special damages.

What Award should be made for the Cost of Future Care?

[224]     The
plaintiff claims in excess of $32,000 for the cost of future care. There was
evidence that the plaintiff intends to continue with a regulated and supervised
exercise program. The evidence established that this type of program would cost
her in excess of $100 per month.

[225]     Both Dr.
Adrian and Dr. Reebye agreed that the plaintiff should continue with a
structured exercise program, and that she would benefit from the supervision of
a personal trainer for some significant (but limited) period of time. I infer
from the evidence of these two experts that there is a substantial possibility
that flare ups of the plaintiff’s low back symptoms will occur in the future
and that such episodes, if extended, might require the plaintiff to attend
physiotherapy. In my opinion, the chance that such potential flare ups will
last so long as to require physiotherapy is quite small.

[226]     The
experts have said that the plaintiff should be able to conduct her own exercise
program, without supervision, within a time frame that I infer to be one year
or less. The evidence showed that the plaintiff commenced this supervised
exercise program in July 2012.

[227]     Counsel
for the defendants suggested an award in the range of $2,000 to $3,000 for this
part of the plaintiff’s claim.

[228]     At some
point in the cost-benefit analysis, it makes sense for a person in the plaintiff’s
situation to set up a home gym in which to carry on her exercise program. That
would require her to purchase some exercise equipment, the cost of which was
not canvassed in the evidence.

[229]     In all of
the circumstances, I find that a just award for the cost of future care would
be $6,000, and I so order.

The Defence of Failure to Mitigate

[230]    
In their response to civil claim, the defendants included the following
pleadings:

Part 1, Division 3

5. The plaintiff has failed to follow medical advice in respect
to treatment or exercise.

. . .

Part 3, Legal Basis

3. The plaintiff could, by the
exercise of due diligence, have reduced the amount of any alleged injury, loss,
damage or expense, and the defendants say that the plaintiff failed to mitigate
her damages.

[231]     It is
apparent that this defence alleged that the failure to mitigate consisted in
the plaintiff’s alleged failure “to follow medical advice in respect to
treatment or exercise.” There was no evidence whatsoever that the plaintiff
failed to follow any medical advice as to treatment or exercise. The evidence
is all the other way. The related allegation that the plaintiff failed to
exercise due diligence must be taken to refer to the plaintiff’s failure to
follow medical advice. I conclude that the defendants have failed to establish
the defence of failure to mitigate.

[232]     In final
argument, counsel for the defendants referred to the plaintiff’s commuting to
and from Port Alberni when the long drives aggravated her low back pain, as
being an issue “of mitigation.” It was also said that, if the plaintiff pursued
a career in teaching physical education in high school that would also
aggravate her low back symptoms, whereas that could be avoided by working as an
ordinary classroom teacher. From this foundation, defence counsel argued that
“the plaintiff has a duty to mitigate her damages.”

[233]     The
defence of failure to mitigate was not pleaded in those terms, and in my view,
cannot be raised at this late stage. It may be arguable that the plaintiff’s
failure to take steps to avoid the long drives to and from Port Alberni is, in
some sense, a failure to mitigate the effects of her low back injury. However,
that matter was argued in the context of the claim for loss of future earning
capacity. The expert medical evidence does not suggest that driving long
distances is hindering the plaintiff’s recovery. Rather, it is to the effect
that the plaintiff will likely never recover fully.

[234]     It is
unknown whether the plaintiff will continue to commute to Port Alberni if she
obtains a full-time teaching position there. At the present time, her decision
to continue driving back and forth while working as a substitute teacher might
properly be described as stoicism on her part. Her desire to continue living in
Nanaimo at the present time is understandable. In any event, the defence of
failure to mitigate was not even raised or argued directly, and I reject it.

Summary

[235]     I
summarize the damages which are awarded to the plaintiff:

·      
Non-pecuniary loss                                     $70,000.00

·      
Past loss of earnings                                  $  2,000.00

·      
Loss of future earning capacity                   $30,000.00

·      
Special damages                                        $  1,382.47

·      
Cost of future care $  6,000.00

 Total Damages                                          $109,382.47

Costs

[236]    
It would appear that the plaintiff should have her costs at the usual
scale. If the parties have a dispute about costs that they cannot settle, a
hearing of the issue may be arranged by contacting the trial scheduling
manager. That contact should be made within 10 days of this date.

 “Mr.
Justice D.A. Halfyard”