IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130301

Docket: 11-0112

Registry:
Victoria

Between:

Jayde Farand

Plaintiff

And

Rolf Seidel

Defendant

Before:
The Honourable Mr. Justice Savage

Reasons for Judgment

I.        Introduction

[1]            
On August 7, 2009, in Victoria B.C., the plaintiff, Ms. Jayde Farand,
was struck by a motor vehicle driven by the defendant, Mr. Rolf Seidel, while
crossing Cook Street in a marked pedestrian crosswalk (the “Accident”). It was
about midday. The weather was overcast but dry. The posted speed limit in this
area of Cook Street, near May Street, is 30 kph.

[2]            
Ms. Farand sustained serious injuries in the Accident, including a
comminuted and impacted fracture of the tibial plateau. This injury required
open reduction and internal fixation with metal screws. She also had an
undisplaced sacral fracture, a lateral compression pelvic fracture, and
fractures to her inferior and superior pubic rami. I will detail the rest of
her injuries below.

[3]            
 At the time of the Accident Ms. Farand was married, 28 years old, and a
counsellor at the Victoria Women’s Transition House.

[4]            
Mr. Seidel was driving a red GMC Sonoma pickup truck. He was issued a
ticket for failing to yield to a pedestrian, contrary to s. 179(1) of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318. The ticket was not disputed. In the
pleadings Mr. Seidel denies liability for the Accident. In the alternative, he pleads
contributory negligence. Damages are also in issue.

[5]            
At the time of the Accident Mr. Seidel was retired and 79 years old. Mr.
Seidel testified that he did not see Ms. Farand before striking her with his
vehicle.

II.       Issues

[6]            
The issues before the court are liability for the Accident and damages. Damages
include non-pecuniary damages, past income loss, future income loss, loss of
future earning capacity, special damages, and two “in trust” claims.

III.       Liability

[7]            
Liability is in issue based on the pleadings.

A.       Background

[8]            
Ms. Farand lived and worked in the area of Cook Street Village. On the
day in question she had taken her lunch in Beacon Hill Park, which is on the
west side of Cook Street. Beacon Hill Park includes a children’s play area
immediately west of Cook Street near the intersection of Cook and May. Ms.
Farand was working that day at the Victoria Women’s Transition House.

[9]            
In this area Cook Street is three lanes. There is a centre lane which
vehicles can enter from either the right or left to make turns. The lanes on
opposite sides of the centre lane are for through traffic.

[10]        
At the time of the Accident, Mr. Seidel had been retired for some years.
On the day of the Accident he had had coffee in Oak Bay with some of his former
co-workers. Mr. Seidel decided to get something at the Oxford Market, so he
turned right on Cook Street off Dallas Road.

[11]        
The posted speed limit in this area is 30 kph. The posted speed limit
reflects the character of the area, which is residential on the east side of
Cook Street opposite Beacon Hill Park and transitions into commercial uses further
north on Cook Street, where Mr. Seidel was destined.

[12]        
Ms. Farand testified that she looked in both directions before entering
the marked crosswalk to cross from the direction of Beacon Hill Park east
across Cook Street. Ms. Farand saw Mr. Seidel’s red truck on the right but it
was some distance away. There was no traffic coming from her left. She
proceeded into the crosswalk and across the street.

[13]        
The crosswalk is well marked. In Mr. Seidel’s direction of travel there
is a crosswalk sign visible on the right hand side of the street. There is
another crosswalk sign visible in the centre of the street. The crosswalk is
marked with bold white stripes that run north-south on the pavement across the
street. Immediately in front of the crosswalk there is a planter with flowers that
blocks the centre lane. There is a sign with diagonal black and yellow lines on
the front of the planter. The flowers in the planter, in my opinion, would not
block the view a driver would have of persons in the crosswalk.

[14]        
Ms. Farand testified that although she saw Mr. Seidel’s vehicle, she
thought herself clearly visible and that he would stop. Mr. Seidel, however,
did not see Ms. Farand. It was a bright day, although overcast at or near
midday. She was wearing a light cream coloured top. There was little or no
traffic. Mr. Seidel said he had seen women crossing the street while proceeding
north on Cook. However, he did not see Ms. Farand.

[15]        
There is no evidence that Ms. Farand started and stopped or otherwise
made any misleading movements while in the crosswalk.

[16]        
There is some question as to where Ms. Farand was in the crosswalk when
she was struck by the vehicle driven by Mr. Seidel.

[17]        
Ms. Heidi Kriez, a school teacher, is an independent witness who saw the
Accident. She was parked on May Street after having a dental appointment at an adjacent
premises. She was talking on her cell phone when she saw the Accident.

[18]        
Ms. Kriez said that Ms. Farand was about one-third of the way into the
crosswalk in the northbound lane when she was struck by Mr. Seidel’s vehicle. At
that point Ms. Farand had travelled across the southbound lane, across the
centre lane, and about one-third of the way across the northbound lane, all
within the crosswalk. Ms. Kriez testified that Ms. Farand was thrown into the
air and landed in front of the red pickup truck.

[19]        
It was suggested in cross-examination that Ms. Farand walked into Mr.
Seidel’s vehicle. The police photograph of Mr. Seidel’s vehicle shows damage to
the right front turn-signal light, which is part of the headlight assembly. Mr.
Seidel was able to stop his vehicle after the impact with the rear bumper of
his vehicle within a metre of the crosswalk.

[20]        
Although skillfully cross-examined, I accept Ms. Kriez’s evidence about
what she saw and where the impact occurred. She had an unobstructed view of the
events. She is an independent witness. Although the red pickup truck appears to
have travelled straight through the crosswalk, I cannot infer from the damage
to the turn-signal light that the turn-signal light was the main point of
impact.

B.       Legal Analysis

[21]        
The parties pleaded the relevant provisions of the Motor Vehicle Act
and the Negligence Act, R.S.B.C. 1996, c. 333. During oral argument, the
defendant conceded that the evidence showed that he was negligent. The defendant
argues, however, that the plaintiff was contributorily negligent and fault
should be apportioned equally.

[22]        
Sections 179(1) and (2) of the Motor Vehicle Act read as follows:

179  (1) Subject to
section 180, the driver of a vehicle must yield the right of way to a
pedestrian where traffic control signals are not in place or not in operation
when the pedestrian is crossing the highway in a crosswalk and the pedestrian is
on the half of the highway on which the vehicle is travelling, or is
approaching so closely from the other half of the highway that he or she is in
danger.

(2) A pedestrian must not
leave a curb or other place of safety and walk or run into the path of a vehicle
that is so close it is impracticable for the driver to yield the right of way.

[23]        
The defendant says that s.179(2) applies in this case. Even if s.179(2)
does not apply, the defendant says that the plaintiff had a duty to take
reasonable care for her own safety. This she did not do. The defendant
notes that Ms. Farand was not suffering any impairments to her ability to take
reasonable care of her own safety: she was not old, infirm, or distracted.

[24]        
The defendant argues that the plaintiff was also negligent by leaving a
place of safety and walking into the path of the defendant’s vehicle. According
to the defendant, Ms. Farand left a place of safety by walking past a small
flower bed in the middle of the road, albeit while within the crosswalk.

[25]        
Sections 179(1) and (2) have been the subject of considerable judicial
comment. In Ramsay v. Holt, [1987] B.C.J. No. 2043 (S.C.), the court found
that a pedestrian was as much at fault as a driver, after the driver collided
with the pedestrian while the pedestrian was in a crosswalk. In certain parts
of that judgment, the crosswalk is described as unmarked (see, for example,
para. 1), although the judgment is not consistent in that description.

[26]        
The treatment of Ramsay in subsequent decisions was usefully reviewed
by McEwan J. in Cairney v. Miller, 2012 BCSC 86. Mr. Justice McEwan
noted that Ramsay was distinguished by Donald J., as he then was, in Miksch
v. Hambleton, [1990] B.C.J. No. 1810 (S.C.).

[27]        
Mr. Justice Donald relied on two decisions from the Supreme Court of
Canada: Petijevich v. Law, [1969] S.C.R. 257, 1 D.L.R. (3d) 690; and Coso
v. Poulos, [1969] S.C.R. 757, 5 D.L.R. (3d) 465. Neither of these decisions
was referred to in Ramsay.

[28]        
Mr. Justice Donald interpreted those decisions as standing for the proposition
that once a pedestrian has safely entered a crosswalk, absent any overt
negligence such as running or gesturing that could mislead motorists into
thinking that they may proceed safely, the pedestrian may assume that the
motorists will yield the right-of-way and will share no responsibility if
struck in the crosswalk. 

[29]        
In Ramsay, I note that at para. 8 the court found that “the
Plaintiff did make some gesture which led the Defendant to think he was
hitchhiking which in turn misled the Defendant into thinking that there was no
question of right-of-way”.

[30]        
In Feng v. Graham, [1988] 5 W.W.R. 137 at 142, 25 B.C.L.R. (2d)
116 (C.A.), Wallace J.A. described the burden on the defendant where the
plaintiff pedestrian had the right-of-way. The court held that the plaintiff in
the circumstances of that case was entitled to assume that the defendant was
going to obey the law and yield the right-of-way to her. Her right to rely on
that assumption “continued until such time as she knew, or ought to have known,
that the defendant was not going to grant her the right of way, whereupon the
plaintiff’s obligation to avoid injury to herself superseded her right to
exercise her right of way”.

[31]        
Thus, the onus is on the defendant to establish that the plaintiff knew,
or ought to have known, that the defendant driver was not going to grant her
the right-of-way, and that, at that point of time, the plaintiff could
reasonably have avoided the Accident.

[32]        
In Funk v. Carter, 2004 BCSC 866, 32 B.C.L.R. (4th) 158,
Williamson J. reviewed a number of cases that considered these sections and
concluded that both parties, regardless of the precise wording of the statute,
retain a common law duty of care to act in a manner promoting their own safety
and the safety of others.

[33]        
The defendant’s difficult burden of proof was described by Taylor J. in Olesik
v. Mackin, [1987] B.C.J. No. 229 (S.C.), as follows:

To meet the onus which rests on
the defendants to prove such an allegation of contributory negligence, they
must, in my view, establish much more than inadequate attention on Mr. Olesik’s
part. They must also establish: (i) at what distance a person in Mr. Olesik’s
position should have realized, from the speed of the approaching headlights,
that the defendants’ car was not going to yield him the right of way; (ii) that
it would then have been possible for such a pedestrian, by stopping, going back
or rushing forward, to avoid their car; and (iii) that a reasonable person in
Mr. Olesik’s circumstances – a senior citizen pushing a cart – would have taken
and succeeded in such evasive action.

[34]        
In my opinion, Ms. Farand had the right-of-way, positioned as she was,
in the northbound lane of Cook Street while in the crosswalk. Of course,
whether she had the right-of-way or not, Mr. Seidel did not see her.

[35]        
He should have seen her as she would have been plainly visible on that
street in the prevailing conditions well before she entered the northbound lane.
I do not accept the suggestion that the planter would have obstructed Mr. Seidel’s
view of Ms. Farand. Any pedestrian in those circumstances would reasonably
expect that they would be plainly visible to approaching traffic in the
northbound lane of Cook Street.

[36]        
Mr. Seidel was not travelling at great speed. He testified that he was
travelling at 30 kph “or so”. His vehicle quickly came to a halt with the box
of his pickup truck just past the crosswalk. Accepting that Ms. Farand retained
the common law duty of care to act in a manner promoting her own safety and the
safety of others, in my view Ms. Farand acted reasonably. Ms. Farand did not
know nor could she reasonably know that the driver of the slow moving red pickup
truck would not stop. In my opinion there was nothing Ms. Farand did or failed
to do that contributed to the Accident in any way. Mr. Seidel is wholly at
fault.

IV.      Damages

[37]        
Having found Mr. Seidel wholly liable for Ms. Farand’s injuries, I must
quantify the damages she suffered as a result of the Accident.

1.       Non-Pecuniary Damages

[38]        
I begin by assessing non-pecuniary damages, turning first to Ms.
Farand’s condition before the Accident.

A.       Ms. Farand Pre-Accident

[39]        
At the time of the Accident, Ms. Farand was 28 years old, married to
Daniel Martins, and employed as a counsellor by the Victoria Women’s Transition
House. The Victoria Women’s Transition House Society operates a safe house for
women in abusive relationships. Women may stay at the safe house for up to 30
days. Ms. Farand counselled women who stayed at the safe house but was
also required to do more mundane physical tasks to accommodate women, some with
children, transitioning to and from the safe house.

[40]        
Two years before the Accident, Ms. Farand completed university at the
University of Calgary. While attending the university she achieved a 4.0
average, was on the Dean’s list, and was awarded scholarships. Ms. Farand also
worked for a program geared to counselling street workers while in Calgary
called “Safe Haven”, as well as for the Calgary Emergency Shelter.

[41]        
Ms. Farand embarked on a post-graduate degree while in Calgary. She
transferred to the University of Victoria to work as a teaching assistant and
complete her degree. After a short while, she determined that she did not want
to pursue her academic career. She took employment with the Victoria Women’s
Transition House.

[42]        
The Victoria Women’s Transition House is run by a not-for-profit society
of the same name. It is funded by government and by donations. Ms. Farand
became involved in a number of fund-raising initiatives for the Transition
House, including a production called the “Vagina Monologues”. In order to fund
the cost of putting on the Vagina Monologues, she organized an event that raised
the $5,000-$6,000 required to secure premises and expenses for the main
production.

[43]        
Ms. Farand was the producer of the Vagina Monologues, which is a live
theatrical production. She had been involved in a similar production of the
same name in Calgary. The Vagina Monologues was a success and raised nearly $27,000
for the Transition House. Ms. Farand helped organize other fund-raisers
involving live productions:  the “Get Up, Stand Up” production in March 2009
and the “Summer Celebration of the Arts” event in July 2009.

[44]        
In addition to her full-time employment and charitable activities, Ms.
Farand was physically active before the Accident, enjoying, inter alia, dancing,
skiing and hiking. She went regularly to the gym, yoga and fitness classes. She
contemplated teaching fitness classes as a means of making extra money and
keeping up her level of physical fitness.

[45]        
Ms. Farand also shared domestic duties with her husband, Mr. Martins. Mr. Martins
is an aspiring musician and has written musical scores. Mr. Martins career
showed some sporadic promise but was not particularly remunerative. Ms. Farand
had been a breadwinner in the family even when at university and was the major
breadwinner at the time of the Accident. After the Accident, Mr. Martins took
on night shift hotel janitorial work at $13 an hour to help make ends meet.

B.       Accident Injuries

[46]        
Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the
road surface in front of Mr. Seidel’s truck. She was not run over by the truck.
Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted
that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby
called 9-11.

[47]        
Ms. Farand was taken to the hospital by ambulance. Imaging at the
hospital showed a tibial plateau fracture and a lateral compression pelvis
fracture, inferior and superior rami fractures, and an undisplaced sacral
fracture. Open reduction and internal fixation of the right tibial plateau
fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six
metal screws. The pelvis fractures were treated conservatively.

[48]        
Ms. Farand was hospitalized for 12 days. She was released from hospital,
moving with the aid of a wheel chair. She was also provided with crutches. By December
2009 she used crutches without the wheel chair. She was anxious to return to
work and worked a few partial days in November and December 2009, although she
was able to do this work from home. She was put on a gradual return to work
program. Her timesheets indicate the hours she worked.

[49]        
Ms. Farand suffered and continues to suffer from ongoing neck and back
pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her
cervical spine, with likely injuries to the zygaphophyseal joints as well as
injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with
soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of
the lumbar spine. These injuries result in chronic pain, which interferes with
activities of daily living and is aggravated by her favouring her right leg.

[50]        
Ms. Farand has undergone various treatments, including physiotherapy and
massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail
opines that she is at greater risk for developing osteoarthritis in the right
knee and will likely need knee replacement surgery in 15-20 years. He is
uncertain whether she has meniscal tear or detached meniscus, which cannot be
identified by doing an MRI but could be diagnosed with arthroscopic surgery. If
she has these problems with her meniscus, then those time frames may be
accelerated.

C.       Ms. Farand Post-Accident

[51]        
I have related some of the events involved in Ms. Farand’s treatment. She
was substantially immobile for a significant period, then ambulatory only with
a wheelchair, progressing to walking with assistance with crutches, walking with
crutches, and then finally walking unaided.

[52]        
The family moved from a small suite in a character home to a larger
attic suite to accommodate Ms. Farand’s wheelchair and crutches. She required
external assistance in the home for mundane tasks and was given much more
assistance by her husband, Mr. Martins, and her brother, Mr. Farand. She
required assistance in bathing, which was awkward because she had to keep her surgical
wounds dry.

[53]        
Sleeping was difficult because of her immobilized leg and her various
aches and pains, and she required positioning with multiple pillows, assisted
by Mr. Martins. She continues to have difficulties sleeping and must
specially posture herself with pillows.

[54]        
Ms. Farand, however, was determined to return to work. She commenced a
gradual return to work program with an ultimate goal of working full-time, 35
hours a week (five shifts of seven hours each). Because of the physical demands
of working in the safe house, Ms. Farand transferred to the Children Who
Witness Abuse (“CWWA”) program at the Cedar Hill location. This work did not
involve the heavier domestic-type work that was required in the safe house, but
did require some bending and stooping when dealing with young children, which
Ms. Farand found and continues to find difficult.

[55]        
The Victoria Women’s Transition House timesheets for Ms. Farand from
July 25, 2009 through March 30, 2012, are in evidence. Those sheets show that
the week before the Accident she worked full-time, or 35 hours a week, at the Transition
House, and then in the week of the Accident worked full-time except for the day
of the Accident, where she worked 3 ½ hours. She worked a few hours in November
and December 2009 and then 23 hours during the weeks of January 23 to February
5, 2010, before Ms. Farand commenced working in the CWWA program.

[56]        
In January 2010 Ms. Farand travelled to Mexico for a vacation with her
family, although her activities were limited.

[57]        
Employees of the Victoria Women’s Transition House are required to
complete timesheets, which are approved by their supervisor. Employees are
unionized and have benefit plans. Ms. Farand was therefore required to complete
the timesheets specifying the reason for absences, such as sick time or
“special leave”. Ms. Farand accumulated one day of sick time for each month
worked. If she was sick then she could use a “sick day” so that she did not
lose pay. If her absence was because of her injury, she completed the time
sheet showing an amount for “special leave”. She was not paid for “special
leave”. The timesheets were submitted for approval to her supervisor.

[58]        
Ms. Farand was cross-examined regarding completion of the timesheets. Apart
from supervisor approval, the completion of the timesheets was done by her and
thus involved her judgement. I accept her evidence that she appropriately
recorded special leave as absences related to her Accident injuries and
recorded sick time for illnesses and other absences that were unrelated to her
Accident injuries. The records were approved by her supervisor. I have no
reason to believe those records inaccurate. Indeed, there is no evidence that
she completed these records incorrectly.

[59]        
Those records reveal a pattern that accords with Ms. Farand’s evidence
and is, in my opinion, consistent with the medical evidence. Apart from
scheduled vacation, her work hours gradually increased but were subject to
occasional setbacks, and she was unable to work full-time until just before
taking maternity leave.

[60]        
She was especially motivated to work as many hours as she could leading
up to maternity leave so that she could qualify for enhanced employment
insurance benefits. She intentionally took annual vacation time during this
period, which, it seems, qualified as full-time work. While she did work those
hours, it was difficult for her and she was unable to work as many hours as she
had hoped or pursue the extra-curricular activities she had pursued before the
Accident.

[61]        
Ms. Farand went on to take maternity leave and successfully deliver a
child. She is on maternity leave at this time. She has had some difficulties
associated with infant care because of the limitations referenced in Ms. Ball’s
report, which I discuss below. She has temporarily moved to Calgary because of
the support of her extended family and friends, although she and her family
intend to relocate to Victoria shortly and her household belongings are still
stored there.

[62]        
She is left with chronic neck and back pain and headaches, although she
had periodic headaches before the Accident related to her menstrual cycle. She
is fearful and anxious around motor vehicles, although she commenced driving
again a couple of years after the Accident. She has had some counselling, and it
is recommended that she continue physiotherapy and attend counselling or a
psychologist to help her deal with her anxieties. Although she eschews
medications, she may benefit from medications commonly used for myofascial pain
or regional pain.

[63]        
The consulting physicians and her family physician consider her to have
reached her “maximal medical improvement”. Based on the American Medical
Association Guides to the Evaluation of Permanent Impairment, Dr. Giantomasco
estimated her “whole person impairment rating” at 11%. Dr. Giantomasco’s report
went in evidence unchallenged and he was not called as a witness for cross‑examination.

[64]        
Ms. Jennifer Ball is a registered kinesiologist and functional capacity
evaluator. Her report was filed. Her expertise was not challenged and she was
not asked to attend for cross-examination. Ms. Ball found no overt discrepancy
between Ms. Farand’s reported disability and the ability she demonstrated
during testing. She concluded that Ms. Farand meets the physical requirements
to perform a job within the medium category provided certain functional
limitations are accommodated.

[65]        
In order to accommodate these functional limitations, Ms. Ball
recommends that Ms. Farand: (1) avoid kneeling on the right knee; (2) limit low
level activities to a rare basis; (3) avoid crawling; (4) limit floor to waist lifting
to 30 lbs occasionally and 20 lbs frequently; (5) limit waist to shoulder
lifting to 30 lbs; (6) limit carrying to 30 lbs bilaterally and 20 lbs
laterally; (7) change positions as needed when sitting, which she can do on a
frequent basis; (8) change positions and take rest breaks as needed when
standing, which she can do on a frequent basis; (9) limit standing to an
occasional basis if she is performing increased physical activities such as
lifting, carrying, walking and stair climbing; (10) limit reaching overhead and
below knees to a rare basis; (11) limit forward reaching to an occasional basis;
(12) limit stair climbing to a rare basis; and (13) avoid working from heights.

[66]        
Ms. Ball was of the view that Ms. Farand did not meet the physical
demands of her pre-Accident position as a Women’s counsellor because of the
requirement to perform household duties and child care in what is a
transitional housing facility.

[67]        
Ms. Farand is not involved in theatrical, fund-raising, or social activities,
as she was before the Accident. I found the evidence of Ms. Backus-Marr and
Ms. Tabinner helpful in that respect. Mr. Farand has difficulty with some
of the tasks of daily living. Ms. Ball’s functional evaluation details those
difficulties. Ms. Farand has not pursued the physical activities she was
engaged in before the Accident, such as hiking, skiing, and dancing. Although
she now has a child, she was also unable to return to those activities before
delivering her child.

[68]        
She has not worked full-time for any sustained period of time and is
understandably apprehensive about returning to work after her maternity leave.

D.       Quantum of Non-Pecuniary Damages

[69]        
The rationale for non-pecuniary damages is discussed in Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 262, 83 D.L.R. (3d)
452: “[m]oney is awarded because it will serve a useful function in making up
for what has been lost in the only way possible”. What has been lost ‑ good
health and the pleasure that it brings to the activities of everyday life ‑
cannot be directly replaced.

[70]        
Any award must be inherently particular, that is, it must address an
individual’s loss and cannot be based on a tariff of the injuries suffered: Lindal
v. Lindal, [1981] 2 S.C.R. 629, 129 D.L.R. (3d) 263; Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.); Stapley v. Hejslet, 2006
BCCA 34, 263 D.L.R. (4th) 19.

[71]        
In this case the plaintiff suffered serious injuries. There is
chronicity to her ongoing complaints. She is a young woman who was a very high-functioning
and active person before the Accident in all aspects of her life. She now has
difficulty performing the tasks of ordinary living, as outlined in the evidence
of Ms. Ball, and faces the prospect of invasive surgery in mid-life.

[72]        
The plaintiff referred the court to three cases on non-pecuniary
damages: Stevanovic v. Petrovic, 2011 BCSC 2 ($155,000); Hildebrand
v. Musseau, 2010 BCSC 1022 ($135,000); and Moore v. Brown, 2009 BCSC
190 ($115,000). In argument it was asserted that the proper range in this case
is from $125,000-$150,000. The defendant did not refer the court to cases on
non-pecuniary damages in oral argument or in written submission.

[73]        
 In Stevanovic, the parties agreed on the quantum of non-pecuniary
damages, so the court did not review the cases and it is therefore not useful
as a precedent. In any event, the injuries and sequelae in Stevanovic
are more serious than those at bar.

[74]        
In Hildebrand, Madam Justice Hyslop made an award of $135,000,
although that included an amount of $6,000 that could be characterized as an in
trust claim. The injuries in that case required more surgeries and it featured
a younger plaintiff.

[75]        
In Moore, Mr. Justice Macaulay discussed non-pecuniary damages for
a somewhat older plaintiff with an active life as follows:

[44]           
The defendant concedes that Mr. Moore suffered significant injuries. Counsel
for the defendant contends that an appropriate award for pain and suffering is
$85,000. That submission is predicated largely, in my view, on an acceptance of
Dr. Ellis’ opinions where they are in conflict with the plaintiff’s
doctors. However, I prefer the evidence of the plaintiff’s doctors where it
conflicts with that of Dr. Ellis.

[45]           
Counsel for the defendant relies on Wilson v. Haddock (1998), 50
B.C.L.R. (3d) 325 (S.C.) and Zicari v. Young, 2001 BCSC 1549. In the
first case, the plaintiff, Ms. Wilson, suffered a compound fracture to the
tibia and a fracture of the fibula of the left leg. She underwent four
surgeries but the tibia fracture remained unhealed. As a result, further
surgery was likely at the time of the trial, just over two and one‑half
years after the accident. The award for pain and suffering was $85,000.

[46]           
In the second case, the plaintiff, Ms. Zicari, also suffered significant
fractures in her left leg and was hospitalized initially for 17 days. She
required further surgery 18 months after the accident to remove hardware that
had been placed in her leg to hold bone fractures together. She also suffered
major knee ligament damage to her right leg but it did not require surgery. By
the time of trial, about three and one-half years after the accident, Ms.
Zicari’s left leg remained weak and her right knee was unstable. She also
suffered psychological injury. Ms. Zicari’s award for pain and suffering was
$110,000.

[47]           
While the comparison of alternate factual patterns is of limited value as no
two cases are ever identical, Mr. Moore’s overall circumstances are closer to
those in Zicari, rather than Wilson. Neither decision necessarily
reflects current dollars for similar injury patterns.

[48]           
Counsel for the plaintiff relies on more recent authority for his contention
that $125,000 is a fit award for pain and suffering. He relies on Cole v.
Smith, 2002 BCSC 1235 and Kmetyko v. Harrison, [1998] B.C.J. No.
2918. The awards for pain and suffering in those cases were $125,000 and
$90,000 respectively.

[49]           
In the first case, the plaintiff, Ms. Cole, suffered severe fractures to her
left knee cap and in the bones of her right heel and foot. Those injuries
resulted in four surgeries. She also had pain referred to her back, neck and
shoulders as a result of her injuries. Ms. Cole faced a significant risk of
developing arthritis in her right foot.

[50]           
In the second case, the plaintiff, Mr. Kmetyko suffered headaches, some chest
pain, damage to the left upper arm and a significant injury to the right knee
following a motor vehicle accident with the defendant. He was left with
lingering pain in his upper left arm when he raised it and pain in his right
knee. The injury to the right knee required two arthroscopic surgeries and
resulted in degenerative changes that were going to require a total knee
replacement. I agree that these two decisions assist in setting a broadly
comparable range of $90,000 to $125,000.

[51]           
Many persons in the same position as Mr. Moore would have taken a less active
role in achieving recovery and maintaining a normal lifestyle. It is to his
credit that he has managed to do so. Nonetheless, he faces an uncertain future.
His prognosis is generally poor. I accept that his foot pain will continue to
drive much of the left knee pain as well as the low back, shoulder and neck
pain with associated headaches. He has gone from a very energetic, active
lifestyle to a more controlled one. He can no longer safely participate in some
recreational, athletic, home and work pursuits to the same extent as he did
before.

[52]           
Somehow, Mr. Moore manages his pain at this point. I suspect that he has a
higher than average threshold for discomfort.

[53]           
A fit award for pain and suffering that offers reasonable consistency with past
awards is $115,000. I award that amount for pain and suffering.

[76]        
In my opinion the appropriate award for non-pecuniary damages in this
case is $130,000, which award I so make.

2.       Past Wage Loss

[77]        
The plaintiff says her total past wage loss is either $58,393.78 or
$53,873.68. From this should be deducted 20% for taxes, with the resulting
figures being $46,715.02 or $43,098.94. To this should be added lost RSP and
MPP contributions, producing net figures of $50,099.85 or $46,483.77.

[78]        
The difference between these two figures concerns a period of six weeks
booked as holiday in Portugal. Mr. Martins has family in the Azores and the
parties booked this holiday well in advance of the actual holiday date. The
holidays were scheduled with Ms. Farand’s employer and other employees were
scheduled to work those dates. However, shortly before the holiday Ms. Farand
learned that she was pregnant. The holiday was cancelled and Ms. Farand did not
work the scheduled holiday time as she thought it unfair to displace other
employees.

[79]        
The defendant argues that the past wage loss claim should be curtailed
as of April 2011. In any event, the defendant argues that he should not be
saddled with the lost holiday costs included in the plaintiff’s calculation. Based
on these adjustments, the net loss of past income should be $37,500.

[80]        
I agree with the defendant that this holiday time does not represent a
loss for which the defendant should compensate the plaintiff. Although the
injuries may have played a factor in Ms. Farand’s decision to cancel the trip,
the resulting loss is not, in my view, a foreseeable one.

[81]        
I disagree, however, that the past wage loss should be curtailed as of
April 2011. Dr. Giantomaso’s opinion in October 2012 was that Ms. Farand’s 
“[o]ngoing major issues include soft tissue injuries to the cervical and lumbar
spine”. He found these were “chronic in nature and have evolved through to a
chronic regional pain syndrome”. Ms. Farand’s pattern of work, in my view, is
consistent with her evidence that she pushed herself to work longer but would
relapse, causing her to miss work after these periods.

[82]        
In the circumstances, I find that Ms. Farand’s net loss of past income
is $46,483.77.

3.       Future Wage Loss or Loss of Earning Capacity

[83]        
The parties are far apart under this head of damages. The plaintiff
argues that I should award between approximately $280,000 and $645,000 based on
varying assumptions using a mathematical approach, or $575,000 based on the
capital asset approach. The defendant argues that “…this is an appropriate
case where an allowance of something like six months’ earnings should be made
at this time for the possibility that an unquantifiable loss may occur many
years in the future”.

[84]        
The
legal approach to considering such claims is described in the decision of
Garson J.A., for the Court, in Perren v. Lalari, 2010 BCCA 140
at paras. 25-32, 317 D.L.R. (4th) 729. I summarize that approach as
follows: 

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

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

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

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

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

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

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

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

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

[85]        
In my opinion the plaintiff has met the initial burden of establishing
that there is a real and substantial possibility of income loss, as required by
the authorities. An examination of Ms. Farand’s work history and her
extracurricular activities bears this out.

[86]        
First, Ms. Farand’s work history shows that she has not consistently
been able to work full-time since the Accident, although she has had two short
periods where she achieved full-time work. The evidence falls well short of
showing that Ms. Farand will be a dependably healthy employee. Given the
chronicity of her ongoing complaints, that seems unlikely.

[87]        
Even when she was able to achieve full-time work in a less challenging
physical environment (counselling children), the evidence of a co-worker, Rachel
Winter, is that she assisted Ms. Farand in some of the tasks required of a CWWA
counsellor. Mr. Martin’s evidence was to the same effect: he assisted Ms.
Farand in moving furniture and the like when picking her up after she had
completed her work.

[88]        
The evidence of Ms. Ball is that Ms. Farand does not meet the physical
demands of her pre-Accident position as a counsellor at the Victoria Women’s
Transition House. Ms. Farand meets the demands of a job in the medium category,
but only if she can be accommodated with respect to low level activities and
matters requiring kneeling, crawling, lifting, carrying, reaching, stair
climbing, and so on. These job requirements and Ms. Farand’s limitations were
confirmed in the evidence of Ms. Backus-Marr, who was Ms. Farand’s direct
supervisor from August 2009 until November 2009 and was part of the management
team overseeing Ms. Farand when she was a CWWA counsellor.

[89]        
This evidence is consistent with that of Ms. Farand’s physicians, who
confirm her limitations with respect to working on her knees.

[90]        
The defendant has referenced for the court two periods when Ms. Farand
worked full-time or nearly full-time in the CWWA program. In my view, one
cannot extrapolate from those short periods. While it is true that Ms. Farand
has not been disciplined or otherwise documented for requiring accommodation, I
accept the evidence of Ms. Backus-Marr and Ms. Winter that Ms. Farand has been
significantly accommodated, probably because of sympathetic management
appreciative of her past efforts in assisting the society.

[91]        
In my opinion the plaintiff has also shown more than a substantial
possibility that she could have earned income from fundraising for not-for-profit
societies. For a number of years before the Accident, Ms. Farand was involved
in fund-raising activities, both in Calgary and Victoria. Those efforts raised
over $100,000 for different organizations. In 2008, she first helped raise $5,000-6,000
to cover expenses for a theatrical production, then organized and produced the
“Vagina Monologues”, which raised approximately $27,000 for VWTH. Of course,
Ms. Farand did not do this alone; however, she played a central organizing
role.

[92]        
This potentially remunerative aspect of Ms. Farand’s pre-Accident skill
set was confirmed by the evidence of Ms. Kim Dennes-Thomas. Ms. Dennes-Thomas
had discussed with Ms. Farand involvement in workshops she runs for the Mosaic
Learning Society, as well as fundraising productions for her theatre company, Tumbleweeds
Theatre. I accept that Ms. Farand’s talent for this type of endeavor, and her pre-Accident
energy, suggest that these activities could reasonably be expected to attract
remuneration. What that remuneration might be is difficult to quantify,
although there was some evidence that it might amount to 10-15% of what is
raised, plus hourly fees for other work.

[93]        
Ms. Farand had also considered teaching “Belly Fit” fitness classes as a
method of keeping up her level of fitness while supplementing her income. This
had the potential to earn a small weekly profit.

[94]        
The plaintiff put before the court two scenarios based on stabilized
weekly earnings of 15-20 hours and other income, and two other variations based
on stabilized weekly earnings of 28 hours. Using a conversion factor of 15.827
based on working to age 68, those scenarios produced precise calculations using
the mathematical approach that range from having a present value of $280,731.73
to $644,272.85.

[95]        
The mathematical precision of these figures belies the uncertainties of
this approach. There are numerous contingencies. At the time of the Accident
Ms. Farand was early in her career, which could have developed and could
still develop in a number of different ways. The impact of raising a family as
an involved parent is a factor, but so is the likelihood that Ms. Farand will
require knee replacement surgery. There are many other contingencies that could
impact these calculations positively and negatively. In my view, however, the
range provided by these calculations is helpful to the court.

[96]        
The plaintiff also presented cases using the capital asset approach. In Stevanovic,
the plaintiff suffered a serious right knee injury, chronic pain, anxiety,
headaches and sleep difficulties. At the time of trial, the plaintiff was only
able to work part-time and was awarded $600,000. In my opinion, Stevanovic involved
a substantial possibility of greater loss than is likely to be experienced by
Ms. Farand.

[97]        
In Hildebrand, the plaintiff suffered a fractured right ankle and
wrist, requiring surgery, and a fractured femur that was treated non-surgically.
At the time of trial, the plaintiff had returned to full-time work and earned
the same amount as he had prior to the accident. His injuries, however, limited
him from performing certain activities and impaired his capacity to earn income.
The plaintiff was awarded $250,000. This award involved less potential loss than
Ms. Farand is likely to suffer.

[98]        
 In my opinion, the appropriate award for loss of future income or loss
of earning capacity in this case is $400,000.

4.       In Trust Claims

[99]        
The overarching principle to apply in determining “in trust” claims is
reasonableness. “In trust” awards are generally limited to seriously injured
plaintiffs for support services beyond those normally to be expected in a marital or familial
relationship: Ellis v. Star, 2008 BCCA 164 at paras. 18-21, 80 B.C.L.R.
(4th) 57. Ms. Farand suffered serious injuries.

[100]    
The principles to be applied in determining “in trust”
claims are well described in Bystedt (Guardian ad litem of) v. Bagdan, 2001 BCSC 1735 at para. 180, aff’d 2004 BCCA 124, 24 B.C.L.R. (4th)
205. The six relevant factors are:

(a)      the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b)      if
the services are rendered by a family member, they must be over and above what
would be expected from the family relationship; 

(c)      the
maximum value of such services is the cost of obtaining the services outside
the family;

(d)      where
the opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower
amount; 

(e)      quantification
should reflect the true and reasonable value of the services performed, taking
into account the time, quality and nature of those services; and

(f)       the
family members providing the services need not forego other income and there
need not be payment for the services rendered.

A.       Mr. Martins

[101]     Ms. Farand
had very limited mobility at the beginning of her recovery. She spent
approximately two months in a wheelchair, by January 2010 was on crutches, and
by February 2010 had returned the wheelchair to the hospital.

[102]     Mr.
Martins bathed Ms. Farand, assisted her in getting in and out of bed, assisted
her in the home, washed her hair, cooked her meals, drove her to various
medical appointments, did all the shopping, cleaned the house, and gave
massages. He sanitized the suite to guard against infection. Ms. Farand also
had the assistance of We-Care services during this period.

[103]     Because
Ms. Farand had surgical wounds, bathing was not a simple process, but required
Ms. Farand’s injured leg to be wrapped in plastic. Preparing for bed was also a
challenge: Mr. Martin was required to position and reposition Ms. Farand in bed
to keep her comfortable while she was otherwise immobile.

[104]     Counsel
suggest a calculation that would use the charge out cost of “We‑Care”
services of $29.45 per hour for these services. Based on the authorities,
however, the opportunity cost, if lower, should be used. Mr. Martins had only
episodic employment in his chosen profession. The more appropriate opportunity
cost for Mr. Martins, in my view, is $13 per hour, based on his janitorial
employment with Realto Hotel.

[105]     I accept
that Mr. Martins provided help for Ms. Farand that went beyond that expected of
a family member, primarily during the first six months of her convalescence. The
amount of help varied with Ms. Farand’s progress. I award $7,000 for Mr. Martins’s
in trust claim for the portion of that help that exceeded what would be
expected of a family member.

B.       Mr. Farand

[106]     Ms.
Farand’s brother, Mr. Joe Farand, also assisted Ms. Farand. He explained that she
had been of great assistance to him during his childhood and he wanted to
assist his sister. Mr. Farand moved to Victoria from Calgary to assist his
sister. He would take over Ms. Farand’s care from Mr. Martin, who also needed
rest.

[107]     Mr. Farand
testified that he cooked for Ms. Farand, cleaned the apartment, helped her climb
up and down the stairs so she could attend appointments, drove her to therapy, ran
various errands, bought groceries, and so on.

[108]     I accept
that for five months Mr. Farand did work for Ms. Farand that was directly
related to her injuries and that went beyond what is expected of a family
member. The opportunity cost of that work, in my view, was higher than that
provided by Mr. Martins because of Mr. Farand’s skills as a tiling contractor. On
the other hand, the amount of work varied and was less than that provided by
Mr. Martin. In my view, an appropriate in trust award for the work done by
Mr. Farand is $6,000.

5.       Cost of Future Care

[109]    
The plaintiff relies on the report of Mr. Fred M. Vandeboer dated
November 7, 2012. The defendant objected to the admissibility of the report. The
objection was not made in a timely way in accordance with Rule 11-6(10) of the Supreme
Court Civil Rules. The commentary in Allan P. Seckel & James C.
MacInnis, British Columbia Supreme Court Rules Annotated 2013 (Toronto:
Thomson Reuters Canada Ltd., 2012) at 425 & 427, describes the purpose of
Rule 11-6 thus:

Rule 11-6 sets out the requirements for expert reports
tendered at trial, together with procedures to facilitate access to information
and documents prior to trial. Subrule (1) specifically incorporates the
certification required under Rule 11-2(2) confirming that the expert is aware
of his or her duty to assist the court and not be an advocate for any party and
has made the report in conformity with that duty.

The report must be served on every party of record at least
84 days before the scheduled trial date. This requirement will be subject to
any case planning order, which might extend or shorten the time for service of
the report. The serving party must include with the report a notice that the
report is being served under Rule 11-6.

Any responding report must be served at least 42 days before
the scheduled trial date, together with notice that the report is being served
under Rule 11-6. The shorter notice period provided for in subrule 11-6(4) is
applicable only to reports which are truly responsive to the expert evidence
called by the opposing party: Wright v. Brauer, 2010 BCSC 1282, 2010
CarswellBC 2391 (S.C. [In Chambers]); Luedecke v. Hillman, 2010 BCSC
1538, 2010 CarswellBC 2899 (S.C. [In Chambers]).

Pursuant to Rule 11-7(6), the court retains a discretion to
dispense with any of the requirements of Part 11. Conversely, it was held under
the former rules that, even where a party has technically complied with the
timelines, the court maintains a discretion to exclude the expert evidence in
circumstances where the length of notice creates substantial and irremediable
prejudice to the opposing party. For an example of the application of this
discretion, see: 927966 Ontario Ltd. v. Cogenix Development Corp., 2000 BCSC
747, 43 C.P.C. (4th) 297, 2000 CarswellBC 1012 (S.C.).

…

A party receiving an expert
report must give notice at least 21 days before the scheduled trial of any
objection to the admissibility of the expert’s evidence at trial. Absent a
proper notice, the objection must not be given at trial. [subrules (10) and
(11)] This is of course subject to the court’s discretion in Rule 11-7(6) to
dispense with any part of Part 11 in appropriate circumstances.

[110]     The first
matter to note is that Rule 11-6(10) is mandatory. It uses the term “must” in
relation to the timeframe allowed for an objection to the admissibility of expert
reports.

[111]     Rule
11-6(11) also use the term “must” in relation to the whether the court should
permit an objection; however that section also says “[u]nless the court
otherwise orders”. In short, the court has an overriding discretion to permit
such objection.

[112]     In this
case the defendant gave no particular reason for failing to abide by the
timeline for raising such an objection, except to say “we let our guard down”. I
think it proper to characterize this as simple inadvertence.

[113]     I do not
think simple inadvertence is a good reason for the court to relieve from the
operation of Rule 11-6(10). The timelines for the exchange of expert reports
and the taking of objections to them are part of a general scheme in the Supreme
Court Civil Rules to provide for the timely disclosure of the parties’
positions on matters. That can have a number of benefits, including promoting
the resolution of disputes and promoting the efficient use of court time.

[114]     I have
also considered the nature of the objections to the admissibility of the report.
In my opinion those objections go not so much towards admissibility but towards
the weight to be given to the report. For example, the defendant argues that
the report is advocacy, that it regurgitates the opinions of other experts,
that it is a compilation of hearsay, and that it is not necessary that such
information be presented in the form of an “expert” report. In this case the
author of the report attended trial. He was available for cross-examination but
was not cross-examined.

[115]     Under the
circumstances I admitted the report. I accept that Mr. Vandenboer has a degree
in occupational therapy, is a registered occupational therapist with the B.C.
College of Occupational Therapists, and is a certified member of the Canadian
Association of Occupational Therapists. I accept that he was qualified to give
the opinions in his report regarding the cost of care recommendations.

[116]     Mr.
Vandenboer interviewed Ms. Farand by telephone, reviewed the opinions of Dr.
Esmail and Dr. Giantomaso, and reviewed the Functional Capacity Evaluation
Report of Ms. Ball. No objection was raised by the defendant to the admissibility
of those reports, nor were their authors required for cross-examination. Based
on his review of those opinions and the interview with Ms. Farand, Mr.
Vandenboer made a number of recommendations for the cost of future care and estimated
the cost of those recommendations. He quoted from the reports where he thought
the reports and opinions gave rise to requirements for costs of future care. I
cannot find fault with this methodology, although I do not necessarily agree
that all of his recommendations should be accepted as giving rise to cost of
care requirements.

[117]     For
example, Mr. Vandenboer costs a local YMCA membership at an annual cost of $648.
It is recommended that Ms. Farand participate in an active exercise program. Ms.
Farand, however, included gym membership as part of her ordinary routine prior
to the Accident. As Ms. Farand would have incurred this cost in any event, I do
not think it compensable, as it is not an expense she would not have incurred
but for the Accident.

[118]     Mr. Robert
Wickson, an economist, provided an expert report on the cost of future care.
The defendant took no issue with that report, and Mr. Wickson was not required
to attend for cross-examination. In his report, Mr. Wickson provided a series
of multipliers that can be used to estimate the likely cost of future care
expenses. I use these multipliers to reach an estimate of the present value of
Ms. Farand’s future care.

[119]     I accept
that Ms. Farand would benefit from periodic assistance by a kinesiologist or
personal trainer for a limited period of time. I would allow three sessions a
year for ten years at a cost of $70 per session. Using the cost of future care
multiplier, the total cost is $1,771.77.

[120]     I would
allow Ms. Farand two physiotherapy sessions a month to assist her in dealing
with her symptoms. These sessions cost $70 each. Since Ms. Farand’s
symptoms are chronic and unlikely to improve, I make this award indefinitely.
Using the cost of future care multiplier, the total cost is $37,643.76.

[121]      I also
accept that Ms. Farand would benefit from some counselling to deal with the
limitations arising from her injuries and the stress they place on all other
aspects of her life. I would allow ten sessions per year for two years at $165
per session. Using the cost of future care multiplier, I award $3,187.80.

[122]     I would
allow an orthotic cost of $480 every six years indefinitely. Using the future
cost of care multiplier, I award $1,792.56.

[123]      In my
view, Ms. Farand will require some assistance for the heavier aspects of
homemaking due to her limitations. Three hours every two weeks at $29.45 per
hour for a yearly cost of $2,297.10 is appropriate, and will extend
indefinitely. Using the future cost of care multiplier, I award $51,471.12.

6.       Special Damages

[124]     The
plaintiff is entitled to recover as special damages the reasonable expenses she
incurred before trial if they were made necessary because of the defendant’s
negligence: Loveys v. Fleetham, 2012 BCSC 358 at para. 329.

[125]     Many of
the expenses claimed by Ms. Farand were not controversial: $20 for hospital
parking; $64.83 spent on items to make Ms. Farand’s home more accessible to her
during her recovery; $6.99 for a compress; and $95 for massage therapy from
Victoria Mobile Massage. These expenses were reasonable, evidenced by receipts,
and incurred as a result of the defendant’s negligence. I award them as special
damages.

[126]     After the
Accident, Ms. Farand attended Koi Treatment Centre Inc. for five sessions of
massage therapy, costing $400 in total. Ms. Farand did not pay the bills for the
massage sessions and $182.97 in interest charges accrued. The defendant accepts
that the massage therapy costs were properly incurred, but contends that he
should not be liable for the interest charges associated with Ms. Farand’s
failure to pay.

[127]     As of
January 2013, the massage bill had yet to be paid. Counsel for Ms. Farand
suggests that the reason for the lack of payment was Ms. Farand’s reduced
income, itself a product of the Accident. I do not think that Ms. Farand and
her family were so impecunious that they were unable to pay $400, or some portion
thereof, in the years since the Accident. I note that during this period Ms.
Farand went on vacation to Mexico, which must have cost more than $400.

[128]      While the
massage therapy itself was reasonable, letting the bills go unpaid was not. I
therefore award $400 for the cost of massage therapy, but not the cost of
interest.

[129]     Ms. Farand
also claimed the cost of treatments undergone at Shelbourne Physiotherapy.
Unfortunately, the evidence substantiating these treatments is less clear. An
invoice from the physiotherapist appears to show that Ms. Farand incurred $4,737.30
in physiotherapy expenses. The parties agree that ICBC paid $3,001.25 of these
expenses, leaving a deficiency of $1,736.05. The defendant argues that the
invoice is difficult to interpret and that there is no satisfactory evidence
that Ms. Farand paid Shelbourne Physiotherapy $1,736.05. The defendant says that
the invoice leaves the court unable to determine whether Ms. Farand, a benefit
plan, or a third party ultimately paid the balance of the invoice.

[130]     Ms. Farand
testified that she paid for the physiotherapy and that she submitted receipts
for those payments to her employee health benefits provider. She testified that
her benefit provider reimbursed her for a percentage of those costs. Although
the evidence is not ideal, on balance I accept that Ms. Farand and her benefit
plan collectively paid the remaining $1,736.05.

[131]     Since Ms.
Farand appears to have paid for her employee benefits by payroll deduction, the
amounts paid by the benefit plan are not deductible by the defendant: Cunningham
v. Wheeler, [1994] 1 S.C.R. 359; Killian v. Valentin, 2012 BCSC 1434
at para. 199.

[132]     I
therefore order that the defendant pay $1,736.05 to Ms. Farand for the
physiotherapy sessions.

[133]     The final
area of contention is $3,918.94 in employee benefits. Ms. Farand is given
benefits by her employer based on her hours of work. Ms. Farand claims as
special damages the value of the benefits she lost due to her absence from work
following the Accident.

[134]      The
defendant accepts that these benefits are compensable. However, the defendant argues
that the portion of Ms. Farand’s absence that was related to her cancelled
vacation to Portugal is not compensable.

[135]     Since I
have found that Ms. Farand’s cancelled vacation was not foreseeable, I agree
that it would be inappropriate to compensate Ms. Farand for the benefits that
she would have accrued during that period. The defendant argues an appropriate
amount would be $3,500; I think $3,650 is a more accurate figure, and I so
order.

V.       Summary & Order

[136]     The
plaintiff’s action is allowed. The plaintiff is awarded damages as follows:

[137]     If there
is an issue as to costs, costs may be spoken to.

“The Honourable Mr. Justice Savage”