IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130403

Docket: M131258

Registry:
New Westminster

Between:

Jennifer Gillam

Plaintiff

And

Gregory Wiebe and
Abbotsford Community Services

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
This is an assessment of damages in relation to personal injuries
suffered by the plaintiff, Jennifer Gillam, in a motor vehicle accident that
occurred February 26, 2009. Liability for the accident is admitted by the
defendants.

[2]            
The plaintiff is a single mother of one child, a daughter, A. On
February 26, 2009 the plaintiff was on her way to work, driving her small four
door vehicle, with her daughter in the back seat of the car. She was planning
to drop her daughter off at day care, before proceeding to her job at a meat
processing facility, Sunwest Food Processors Ltd. (“Sunwest Food”), in
Abbotsford, where she was a production worker.

[3]            
As of the date of trial, the plaintiff was 36 years old. When the
accident occurred she was 32 years of age, and her daughter was 9.

[4]            
The accident occurred at about 8 a.m. The plaintiff was stopped at a
traffic light at the intersection of Maclure Road and Clearbrook Road in
Abbotsford, when her vehicle was hit by a truck driven by the defendant Mr. Wiebe,
and which was owned by the defendant Abbotsford Community Services. Photos of
the plaintiff’s car show moderate damage to the right side of the vehicle,
including a shattered rear passenger side window. The car remained drivable.
Repair costs were approximately $3,000.

[5]            
The plaintiff’s daughter was not physically injured in the accident.

II.              
Issues

[6]            
The plaintiff suffered soft tissue injuries to her neck and injuries to
her right shoulder and arm. She continues to suffer from the effects of her
injuries.

[7]            
She suffers from numbness, tingling and pain in her right arm and hand
which has been diagnosed as thoracic outlet syndrome (“TOS”). She suffers from
frequent headaches. She suffers from pain in her neck and shoulder.

[8]            
A significant issue relates to whether the plaintiff can claim
compensation for the cost of care for her daughter, who has special needs.

[9]            
The position of the plaintiff and of the defendants in relation to the
quantum of damages that should be awarded is as follows:

III.            
Background

A.             
General

[10]        
Prior to the accident Ms. Gillam enjoyed good health. She had some
kidney stone problems both before and after the accident, but that condition is
not material to the case. She had two episodes of serious headaches several
years pre-accident. There is no issue as to whether the injuries she now
complains of were pre-existing or would have occurred in any event. In that
sense there are no causation issues relating to her injuries. The issues relate
to the extent and consequences of the plaintiff’s injuries, and appropriate
compensation.

[11]        
The plaintiff was born in Chilliwack in 1976. She spent her early years
in Lumby and Abbotsford. When she was 12 years of age her mother married a U.S.
citizen and moved to Lynden, Washington. The plaintiff moved to Lynden for one
year, then returned to Lumby until she completed grade 8. Thereafter she moved
back to Lynden, where she graduated from high school. In 1996 (when she would
have been 20 years of age) she obtained a U.S. green card, and began working in
Washington State. In 1998 she met A.’s father, in Surrey, B.C. They began a
relationship. She moved back to Canada. She became pregnant and later gave
birth to A. in late 1999. According to the plaintiff A’s father abused drugs
and was involved in criminal activities. The relationship with A.’s father
ended when he was deported to his native country, England. He does not
contribute to A.’s support and has no relationship with her.

[12]        
At the time of the accident the plaintiff had quite recently begun a new
job with Sunwest Food, as a production worker. She was living in a rented
apartment in Abbotsford with her daughter, A, and a boyfriend. Her relationship
with her boyfriend ended in late 2009, although they have remained friends.

[13]        
Sunwest Food processes chicken, beef, and pork meat products. She earned
a starting wage of $11.90 per hour as a production worker. She was hired to
work part-time. She began the job in December 2008, with an orientation session
and one shift prior to the end of the month. She began working there in earnest
in early January 2009, about 8 weeks prior to the accident.

[14]        
Immediately after the accident the plaintiff drove her damaged car to
ICBC, and then from there to a body shop. She called her employers to tell them
that she would not be able to work that day. She did not immediately feel
injured. She went home and slept on the couch. Upon awakening, she felt
nauseas, and she vomited. She had a severe headache, and she felt stiffness on
the right side of her neck. She took pain medication. She made an appointment
to see her doctor, Dr. Frew, the next day.

[15]        
When she saw Dr. Frew on February 27, 2009 she was complaining of
“migraine” headache, nausea and neck pain. He noted tenderness of her neck
musculature, a normal range of motion of her neck, pain with movement of her
neck, and no neurological abnormalities. He diagnosed a tension headache. She
was sent for x-rays, prescribed pain relief medication, and referred for
massage therapy. She continued to receive massage therapy regularly until
August, 2009.

[16]        
The accident happened on a Thursday. She missed that day’s work, and she
also missed work the next day, Friday February 27, 2009. She went back to work
the next Monday. As a direct consequence of the accident injuries she lost a
total of five or six days of work at Sunwest Food: two days immediately, then
another three or four days in the weeks that followed.

[17]        
In late May 2009 she applied for other part-time work as a Customer
Service Representative with a payday loan company, National Cash Advance. She
began working at National Cash Advance June 15, 2009. She worked at both
part-time jobs until the following year. In May 2010 she accepted a promotion
to full-time work as an Assistant Manager at National Cash Advance, and she resigned
from her position at Sunwest Food.

[18]        
She excelled in her work at National Cash Advance. Following her
promotion to Assistant Manager, she was promoted to the position of Manager of
the Mission branch, then she was promoted again to be a Divisional Training
Manager in addition to Branch Manager.

[19]        
Unfortunately, her employer closed the business in February 2012, and
the plaintiff was rendered unemployed. She remained unemployed at the time of
the trial in September, 2012.

B.             
Extent of injuries sustained and prognosis

[20]        
I found the plaintiff to be a credible and reliable witness in relation
to her description of her injuries sustained in the accident.

[21]        
This view is supported by the evidence of the doctors and other
professionals who have treated or examined her. None of them had any concerns about
the consistency or reliability of the information that she provided to them.

[22]        
She was seen by Dr. Gordon Robinson, a specialist in neurology and
headache disorders. He testified that his findings on physical examination,
although subjective, supported the history she gave him. She was seen by Dr. Barry
Vaisler, an orthopedic surgeon. In his report he commented that she exhibited
no abnormal pain behaviour. He testified that her physical findings correlated
with her symptoms. She also saw Dr. Anthony Salvain, a vascular surgeon,
and Dr. Lisa Caillier, a physiatrist (a specialist in physical medicine
and rehabilitation). Dr. Salvain stated that he had no reason to doubt the
veracity of her reporting to him. The plaintiff initially saw Dr. Caillier
in October 2011 on a referral from Dr. Peter Fry, a vascular surgeon, in
relation to evaluation and treatment of TOS. She subsequently administered Botox
injections on two occasions as therapy for TOS, and was asked to prepare a
medical legal report. She commented that the plaintiff’s presentation and
clinical examinations were quite consistent, and that she exhibited no pain
behaviourisms or mannerisms during examination. All four of these doctors
reviewed the plaintiff’s clinical records with exceptional thoroughness. The
plaintiff has seen Russell McNeil, an Occupational Therapist, who performed a
functional capacity evaluation. He commented that she exhibited a high and
consistent level of effort in testing, and he formed the view that the test
results were reliable.

[23]        
As noted, the plaintiff’s initial complaints of injury relating to the
accident were of headache, neck pain, and nausea. She testified that within a
few weeks of the accident she also began to notice pain and numbness in her
right arm and hand. The plaintiff’s complaints of pain and numbness in her
right arm and hand subsequently led to a diagnosis of TOS on her right side.

[24]        
The defence asserted that the onset of her numbness, tingling and pain
symptoms was delayed, leading to doubt about whether the plaintiff has TOS, or
whether the condition was caused by the accident.

[25]        
The plaintiff testified that to her best recollection she noticed pain
and numbness in her arm and hand in or about March, while at work. In his
records of June 9, 2009 her massage therapist noted: “Right hand going numb
more and more last 3 weeks”. The reference to “more and more” suggests that
this was a problem that was worsening in the three weeks prior to June 9 but
had existed prior to that time. Her doctor’s CL-19 report to ICBC of July 7,
2009 refers to her complaint of nocturnal right hand numbness. There is
therefore, further corroboration of her complaints of right upper limb numbness
as of June and July, 2009.

[26]        
On all of the evidence, I accept the plaintiff’s evidence that she first
noticed this symptom in or about March, 2009.

[27]        
When she saw Dr. Frew on July 7, 2009 she also complained of daily
headache, neck pain, and right biceps pain. Dr. Frew’s CL19 of June 29,
2010 nearly a year later refers to her complaints of daily headache, right side
neck pain, and intermittent right arm numbness.

[28]        
The most recent full medical legal report relating to the plaintiff is
that of Dr. Caillier, dated July 23, 2012. The description of injuries
given by Dr. Caillier in her report is as follows:

1.     Headaches;

2.     Soft
tissue musculoligamentous injury involving the neck and right shoulder region;

3.     Chronic
pain which is soft tissue in nature involving the neck and right shoulder
region; and

4.     Right
thoracic outlet syndrome.

[29]        
I adopt the foregoing description of the plaintiff’s injuries, on the
basis of all of the evidence.

[30]        
Dr. Caillier also refers to other related consequences of the
plaintiff’s injuries, including altered sleep, mood changes, physical
deconditioning, and weight gain.

[31]        
The diagnosis of Dr. Caillier is that the plaintiff has the
following injuries as a result of the accident:

1.     Chronic
right sided neck and shoulder pain;

2.     Right
thoracic outlet syndrome; and

3.     Headaches.

[32]        
The evidence as a whole supports these diagnoses, which are generally
consistent with the other medical opinions and medical evidence, and the other
evidence in the case, including the evidence of the plaintiff.

[33]        
I will discuss the evidence relating to these injuries, in turn.

1.              
Neck and Shoulder Chronic pain

[34]        
She saw Dr. Vaisler January 14, 2011. He was of the view that she
suffered a soft tissue injury to her neck, with subsequent development of
subacromial impingement of her right shoulder, most probably secondary to
paracervical muscle spasm. Subacromial impingement is commonly referred to as
“tendinitis” or “bursitis” of the shoulder. In relation to this condition, he
suggested exercise and general fitness routines, or failing that, other
treatments such as radiofrequency neurectomy, which has a high rate of success,
although the results are temporary. With respect to her shoulder, he stated
that exercise and steroid injections, if needed, would very likely lead to
relief of her symptoms, but if her symptoms continued, surgery could be
considered, with an 80 – 90% success rate. The surgery would be day surgery
followed by three or four months of physiotherapy. In his view, she was
unlikely to have any permanent work disability due to her right shoulder
problems, but there was a 20% risk of permanent limited functionality.

[35]        
However, in his view, she was likely to have a permanent work disability
with respect to heavy labour as a result of the soft tissue injury to her neck.

[36]        
Although this issue was not explored in any detail in the evidence, Dr. Caillier
does not agree with Dr. Vaisler that her right shoulder pain is secondary
to an impingement syndrome. The issue is of minor legal consequence, given Dr. Vaisler’s
opinion regarding the prognosis and consequences of the plaintiff’s neck
injury, and in the context of the other opinions of Dr. Caillier and the
other doctors.

[37]        
Dr. Caillier states that her right side neck and right shoulder
pain are likely soft tissue in nature, but the neck pain is also likely to be
secondary to her TOS. The prognosis is generally negative. Dr. Caillier
states that there is a poor likelihood that she will become pain-free. She
adds: “She is likely to experience pain now and beyond the next 12 months.” 
She recommends a lifelong exercise program, aided by 10 to 12 kinesiology
sessions. She suggests that the plaintiff should attempt to ensure that she has
improved sleep and mood.

[38]        
Dr. Salvian diagnosed headache and right sided neck pain, most
likely as a consequence of soft tissue injuries, and TOS. His report focuses on
her TOS condition. He does not refer to a discrete shoulder injury or
condition.

2.              
Thoracic Outlet Syndrome

[39]        
TOS is an impingement of the veins, arteries or nerves as these
structures exit the thorax (the chest) over the first rib and under the
clavicle to the arm. The most common type is neurogenic TOS, which is
intermittent or continuous compression of the brachial plexus, which is a group
of nerves leading from the upper parts of the spine into the arm and hand.

[40]        
When Dr. Vaisler saw the plaintiff in early 2011 he noted that she
had symptoms consistent with TOS, but he deferred to a vascular surgeon on this
as it is outside his area of expertise. She subsequently saw Dr. Salvian,
a vascular surgeon, who diagnosed TOS involving irritation of the brachial
plexus. Dr. Salvian has a high degree of expertise with respect to TOS.

[41]        
In 2011 the plaintiff was referred to Dr. Caillier who also
diagnosed TOS, specifically impingement of the lower trunk of the brachial
plexus. Dr. Caillier began treating the condition with periodic Botox
injections.

[42]        
The defence adduced an opinion from a cardiac surgeon, Dr. Karim,
who reviewed the plaintiff’s clinical records in detail, but did not have an
opportunity to examine the plaintiff. In his report he states that without
being able to examine the patient he could not give an adequate explanation for
her symptoms nor comment on her prognosis; however he was “hesitant” to
conclude that she suffers from TOS. In his oral testimony he went further and
said that based upon his review of the records he does not believe she suffers
from TOS.

[43]        
I am unable to give any significant weight to Dr. Karim’s opinion
given the limitations he himself expresses, based upon his lack of opportunity
to examine the patient.

[44]        
In a case of this nature I am required to find the facts on a balance of
probabilities. Clearly the weight of the medical opinions is that the plaintiff
does indeed suffer from TOS, caused by the accident. Dr. Karim’s evidence
does not make me doubt the reliability of the TOS diagnosis made by Drs.
Salvian and Caillier, and suggested by others such as Dr. Robinson and Dr. Vaisler.

[45]        
On the basis of all of the evidence and notwithstanding the doubts
expressed by Dr. Karim I find that the plaintiff does suffer from TOS
caused by the accident.

[46]        
Dr. Karim commented that the plaintiff’s symptoms of right arm
numbness developed somewhat late after the accident, based upon the fact that
the first clinical note relation to this condition occurs June 29, 2009.
However, as noted, I accept that the symptom first appeared in or about March,
2009, relatively soon after the accident. In any event, neither Dr. Salvian
nor Dr. Caillier agreed that delayed onset of TOS symptoms would cast
their TOS diagnosis into doubt.

[47]        
Dr. Karim had some concerns based upon variability of the relevant
symptoms and lack of specific objective findings such as diagnostic test
results (e.g. x-rays, CT scans, or MRI exams) or consistent and reproducible
test results on examination. However, none of the concerns expressed by Dr. Karim
led Dr. Salvian or Dr. Caillier to doubt their diagnosis, and I
accept their opinions in this respect.

[48]        
The defence also contended that the diagnosis of TOS in the absence of
specific demonstrated anatomical abnormalities was controversial, generally, in
the medical community. None of Drs. Robinson, Salvian or Caillier agreed that
the diagnosis was generally questionable. Even Dr. Karim did not go so far
as to say that no such diagnosis was valid. He said only that “I am hesitant to
label people as thoracic outlet without specific abnormalities or anatomical
predispositions.”  I conclude that even if there might be some degree of
controversy within the medical community regarding TOS, a question about which
I make no conclusions, on the evidence in this case there is no reason to doubt
the diagnosis that has been made relating to the plaintiff.

[49]        
The plaintiff’s TOS results in numbness, tingling and pain and weakness
in her right arm and hand, specifically her third, fourth and fifth fingers. The
TOS symptoms cause interference with her sleep, in that her whole arm goes
numb. Numbness is also brought on by certain repetitive or prolonged activities
such as reaching, lifting or carrying.

[50]        
In Dr. Caillier’s opinion, the likelihood of her becoming symptom
free is poor. She is vulnerable to exacerbation of the condition through
re-injury. She suggests treatment through Botox injections, which have had good
success so far, massage therapy, and exercise.

[51]        
The plaintiff has had two Botox injections administered by Dr. Caillier
for relief of her TOS symptoms, in November, 2011 and May, 2012. Botox
injections have been beneficial but must be repeated every few months.

[52]        
Dr. Salvian states that conservative therapies will not lead to a
cure in her case. She should modify her activities to avoid aggravating the
condition. He says she “may be able to cope” within her restrictions. However,
if she were forced to overuse her right arm with repetitive or overhead
activities her condition could worsen and she could develop chronic pain
syndrome. In his view, surgical intervention would provide a significant
benefit although there is no guarantee that she could return to a profession
requiring heavy lifting, prolonged overhead work or repetitive activities. Surgery
is not recommended unless the condition is causing significant interference
with the patient’s ability to sleep, work, and engage in reasonable domestic
and recreational activities. There is an 80% chance of making her condition
better, but there is a 1 to 2% risk of making her worse off. There is a risk of
serious nerve injury and a slight risk of mortality.

[53]        
Ms. Gillam testified that she intends to continue with massage
treatment, physiotherapy and Botox injection for her TOS but is not prepared to
undergo surgery, in view of the uncertain outcome and risks.

3.              
Headache

[54]        
Her primary complaint when she saw her G.P., Dr. Frew, in June 2010
was in relation to headache. When she saw Dr. Robinson in May 2010 she
described constant right occipital headache, ranging in intensity from mild,
moderate to severe. She advised Dr. Robinson that, when severe, her
headaches can lead to nausea, and sensitivity to light and sound.

[55]        
A co-worker at National Cash Advance, Karen Jones, noted that there were
occasions when headache pain would cause the plaintiff to stop working and
retreat to the back room of the office, where she would crawl under a table to
avoid exposure to light. She observed that the plaintiff was also bothered by
numbness in her hand. However, she thought there were only two occasions when
the plaintiff had to leave work early due to her injuries. Ms. Jones
worked at National Cash Advance for about eight months from May 2011 until the
business closed in February 2012.

[56]        
When the plaintiff saw Dr. Salvian in late November 2011 she said
that her headache “comes and goes” but occurs 5 days per week, lasting from
five or six hours, to all day and that her severe headaches may be accompanied
by nausea. Dr. Caillier relates that the plaintiff’s headaches occur
several times per week.

[57]        
However, the plaintiff’s massage therapist Abby Janzen noted on August
16, 2012 that she had no headaches at all during that week, and on August 23
she noted that the plaintiff was headache free for a couple of days.

[58]        
The evidence leads me to conclude that the plaintiff’s headache complaints
continue to be significant, although the frequency, duration and severity
appear to be gradually lessening over time.

[59]        
She had two episodes of what she described as “migraine” headaches
several years pre-accident, but since then did not have a problem with headache
until the accident. There is no suggestion in the evidence that her headache
complaints relate to anything other than the accident.

[60]        
Dr. Robinson’s opinion, based upon his 2010 examination, is that it
is probable that she would continue to have headache and neck pain for “many
years to come”. There was in his view a possibility of improvement over the
next three to five years, but he doubted that she would be pain free during
that time period. In Dr. Caillier’s more current opinion, (July 23, 2012) she
states that given the chronicity of her headaches and her ongoing neck
symptoms, the likelihood of her becoming headache free is poor. In her report,
she added that, “[s]he is likely to have ongoing headaches now and beyond the
next 12 months”.

[61]        
In 2010, the plaintiff had Botox injections for relief of her headache,
but the therapy was not effective.

4.              
Other Consequences of Injuries

[62]        
The plaintiff’s injuries interfere significantly with her ability to sleep.
She has gained significant weight since the accident. Recently she has lost
some of the added weight. I accept that in general terms the weight gain she
experienced was caused by the motor vehicle accident.

[63]        
Dr. Caillier noted references in the clinical records to low mood
and irritability but that the plaintiff did not report this to her and she did
not appear depressed.

[64]        
However, lay witnesses testified to changes to her mood and disposition.
She has become more irritable and impatient, for example in relation to her
interactions with her daughter, who has special needs. Her sister described her
as being generally unhappy and irritable. A friend and former co-worker,
Michelle Letkemann, said that she is less happy, more withdrawn, and is “not
quite herself” anymore.

5.              
Summary: Extent of Injuries Sustained and Prognosis

[65]        
In summary, I find that the plaintiff suffered the following injuries
due to the accident:  chronic right sided neck and shoulder pain, thoracic
outlet syndrome, and headaches, all as described above. She has also suffered
from deterioration in her mood and disposition, interference with sleep, and
significant weight gain.

[66]        
Her headache condition is gradually improving but she continues to
suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms
also continue to cause pain and limitation of function. In general, the
prognosis for the plaintiff’s conditions is poor. It is likely that she will
have a degree of limitation of function and pain permanently.

IV.           
Assessment

[67]        
Although contributory negligence and failure to mitigate were pleaded,
no such arguments were made at the trial. I therefore take these contentions as
having been abandoned.

A.             
Non Pecuniary Damages

[68]        
The purpose of an award of non-pecuniary damages is to compensate the
injured person for his or her pain and suffering, loss amenities of life, and
loss of expectation of life. However, the law recognizes that money cannot
provide true restitution, because what has been lost is irreplaceable, and in
any event there is no market in which the value of the loss can be objectively determined.
The award is intended to provide solace, not in the sense of sympathy, but in
the sense that money can be used to make the injured person’s life more
endurable. Money is awarded because it will serve a useful function in making
up for what has been lost in the only way possible; accepting that what has
been lost is incapable of being replaced in any direct way. As was explained in
Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, at para. 171:

For those losses which cannot be made good by money, damages
are to be awarded on a functional basis to the end of providing substitute
pleasures for those which have been lost. This is the philosophical justification
for awarding damages for non-pecuniary loss.

[69]        
Of necessity, the award must be arbitrary or conventional. The award
must be fair and reasonable, fairness being gauged by earlier decisions: Andrews
v. Grand and Toy, [1978] 2 S.C.R. 229, at paras. 87 – 89.

[70]        
The general principles relating to assessment of non-pecuniary loss are
set out in the decision of the B.C. Court of Appeal in Stapley v. Hejslet,
2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45 and 46:

[45] …I think it is instructive to reiterate the underlying
purpose of non-pecuniary damages. Much, of course, has been said about this
topic. However, given the not-infrequent inclination by lawyers and judges to
compare only injuries, the following passage from Lindal v. Lindal, supra,
at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[71]        
The overriding consideration is “appreciation of the individual’s loss”.
As a result, the award will vary in each case to “meet the specific
circumstances of the individual case”: Stapley, at para. 45.

[72]        
Prior to the accident the plaintiff was healthy and vigorous. She
enjoyed dancing and cooking. She often visited her younger sister and her
sister’s family who reside in Lynden. She enjoyed cooking for her sister’s
family. She enjoyed boating with her sister’s family, camping, shopping, and watching
baseball.

[73]        
She no longer engages in many of her former activities.

[74]        
Her sister described her as outgoing, energetic, fun and sociable prior
to the accident. The plaintiff now visits her sister’s family less frequently. Her
sister described her as “miserable”. However she also noted some modest
improvement in the last 5 months or so. She has lost some weight and seems to
be feeling a little better.

[75]        
The plaintiff now often eats fast food instead of cooking for herself
and her daughter. She has difficulty doing housework and her home is untidy.

[76]        
Her pre-existing weight problem has been made much worse by the accident
injuries. In my view, the plaintiff’s weight problem was a pre-existing vulnerability,
rendering her more susceptible to adverse consequence of her injuries.

[77]        
She has suffered substantially from pain and limitation of function over
the past nearly four years since the accident. While in some ways her condition
is improving somewhat, for example in relation to headaches, and she is
benefiting from treatment such as massage therapy and Botox, the overall
prognosis is poor and she is unlikely ever to be completely pain free.

[78]        
While the plaintiff states that she does not plan to undergo surgery for
her TOS, there is a chance she may have to reconsider that decision should her
condition worsen.

[79]        
As noted, the plaintiff’s daughter, A., has special needs. She is
significantly cognitively impaired. She also has a deformed right leg and foot
which cause her to be clumsy and uncoordinated, and affects her gait. She is
very immature for her age and requires a very high degree of attention and
supervision. She has a short attention span. She tends to be hyperactive. A.
needs help in relation to dressing, bathing and meal preparation. The causes of
her condition are unknown.

[80]        
From April 2010 the plaintiff has had about 6 hours of respite care per
week for her daughter’s care. The home care worker testified that after six
hours of looking after A., she is “pretty exhausted”.

[81]        
The plaintiff’s injuries have made it more difficult for her to attend
to her daughter’s needs.

[82]        
There was no evidence that her injuries affected her relationship with
her former boyfriend, or that they affect her currently in relation to romantic
relationships.

[83]        
The plaintiff’s injuries caused difficulties for her in relation to her
work at Sunwest Food, and also at National Cash Advance. Her work at Sunwest
Food was quite physical in nature. The medical consensus and the opinion of the
occupational therapist is that she can no longer engage in that kind of work. However,
she can do sedentary work such as her work as a customer service representative
at National Cash Advance.

[84]        
While recognizing that economic necessity left her with little practical
choice, it is nonetheless notable, however, that the plaintiff was able to
carry out her part-time work at Sunwest Food for about 14 months post accident,
before resigning in May 2010 in order to take on the full-time assistant
manager position at National Cash Advance. She was able to function very well
despite her difficulties in her work with that company, earning two promotions
before the company ceased operations.

[85]        
Some context is also provided by the video surveillance evidence. Video
surveillance was conducted on 3 separate days in April and May, 2012. The video
evidence shows the plaintiff carrying out ordinary activities such as pumping
gas, entering and exiting her vehicle, driving, and also shopping and eating a
picnic lunch with companions. She displays no obvious sign of discomfort or
disability and generally looks comfortable and able to carry out such moderate activities.

[86]        
Nevertheless, the plaintiff suffers from a limitation of function. She
suffers from pain in her neck and shoulder which will likely never completely
disappear. She is unlikely ever to be symptom free in relation to her TOS
condition. She continues to suffer from frequent headaches for which the
prognosis is negative for complete resolution. She is no longer capable of
heavy work, and must avoid other activities that could aggravate her neck and
shoulder injuries and her TOS. She is restricted in terms of employment, domestic
and recreational activities. There has been a very significant change in the
plaintiff’s overall lifestyle. There have been emotional consequences to her
injuries. Her injuries have also made caring for her daughter much more
difficult.

[87]        
While of course each case is unique, other court cases provide useful
guidance with respect to the proper quantum of the award. Consistency with
other decisions of the courts is desirable. The award must be fair to both
sides.

[88]        
The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34
($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit,
2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and
Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the
range for non-pecuniary damages in this case is $95,000 to $135,000. The
defence also relies upon Cimino, and Durand. Additionally, the
defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000), Langley
v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC
1129 ($40,000). The defence submits that Driscoll and Langley
most closely equate to this case, and submits that an appropriate award is
$60,000.

[89]        
Having reviewed these authorities, in my view an appropriate award for
non-pecuniary loss in this case is $90,000.

B.             
Past Loss of Earnings Capacity

1.              
Legal Principles

[90]        
In their submissions both parties used the term “past wage loss” for
this head of damage. The award relates to assessment of the value of the work
that the plaintiff would have performed but for her accident injuries. The
award is properly characterized as a loss of earning capacity: Bradley v.
Bath, 2010 BCCA 10 at paras. 31- 32; Lines v. W & D Logging Co.
Ltd., 2009 BCCA 106 at para. 153; X. v. Y., 2011 BCSC 944 at para. 185.

[91]        
The plaintiff need not establish the actual loss of earnings on a
balance of probabilities. What would have happened prior to the trial but for
the accident injuries is hypothetical, just the same as what may happen in the
future, after the trial.

[92]        
In Smith v. Knudsen, 2004 BCCA 613, at para. 36, Rowles J.A.
stated:

What would have happened in the
past but for the injury is no more "knowable" than what will happen
in the future and therefore it is appropriate to assess the likelihood of
hypothetical and future events rather than applying the balance of
probabilities test that is applied with respect to past actual events.

[93]        
However the plaintiff must establish on a balance of probabilities that
there is a causal connection between the accident injuries and the pecuniary
loss claimed; mere speculation is insufficient: Smith v. Knudsen para. 36;
Athey v. Leonati, [1996] 3 S.C.R. 458, para. 27; Perren v.
Lalari, 2010 BCCA 140, para. 32; Falati v. Smith, 2010 BCSC 465
at para. 41, aff’d 2011 BCCA 45.

[94]        
Just as in the case of the assessment of future loss of earning
capacity, in the case of past loss of earning capacity, if the plaintiff
establishes a real and substantial likelihood of the pecuniary loss asserted,
the assessment of damages to be awarded as compensation depends upon an
assessment of the degree of likelihood of the particular loss, combined with an
assessment of the value of the loss.

[95]        
In cases where it is appropriate to proceed with an assessment of the
value of the loss, sec. 98 of the Insurance (Vehicle) Act , R.S.B.C.
1996, c. 231 stipulates that a person who suffers loss of income is
only entitled to recover the net income amount as damages: see X. v. Y.,
2011 BCSC 944 at para. 187 and Gordon v. Lines, 2009 BCCA 106 at paras. 152-186.

2.              
Positions of the Parties

[96]        
In this case the plaintiff asserts that but for the accident, she would
have been working full-time hours at Sunwest Food either doing the same work as
she was doing prior to the accident,  or perhaps as a lead hand, which would
have resulted in an increase in her wages. She contends that as a result of her
injuries she was required to transition to a less physically demanding job at
National Cash Advance. The plaintiff contends that her injuries have left her
with impaired working capacity which has prevented her from obtaining
replacement employment following the loss of her work at National Cash Advance
in February 2012.

[97]        
She contends that had she been working full-time at Sunwest Food she
would have earned $28,443.43 more than she actually did, to the end of
September 2012. She contends that had she been promoted to lead hand at Sunwest
Food, the loss would be greater, at $35,784.66 to the end of 2011.

[98]        
The defendants contend that the plaintiff lost only 5 or 6 days of work
at Sunwest Food due to the accident, and that at her wage rate of $12.45 per
hour her loss is some $600. The defendants contend that the plaintiff
transitioned to National Cash Advance in order to obtain full-time hours and
would likely have done so in any event. They contend that the closure of
National Cash Advance and the plaintiff’s subsequent unemployment are due to
the vagaries of the economy, and are not causally related to the plaintiff’s
injuries.

3.              
Analysis

[99]        
Prior to the accident the plaintiff had always been a steady, hard worker.

[100]     After
graduating from High School in Lynden Washington she attended Bellingham
Technical School, where she completed the first year of a two year diploma
program in “Administration”. She worked two jobs while she studied part time;
at a Subway restaurant and at People’s Bank. She left school for economic
reasons. The bank job was eliminated. She then worked at Lynden Manor, a
residential care home, where she was a server in the dining area. At the same
time she worked in food court restaurants. She worked well into her pregnancy. From
2002 to 2004 she worked as a shipping and receiving supervisor at a department
store in Abbotsford. The work was quite physical in nature. The store shut down
and the plaintiff was out of work. While receiving employment insurance she
attended a community college in Abbotsford where she studied to be a legal
secretary for a year. She was unable to find work as a legal secretary.

[101]     In May
2005 the plaintiff began working at a book warehouse company, Discover Books. She
again attained the position of shipping and receiving supervisor, and once
again the work was quite physical in nature. Her job was eliminated in October
2008 when the company was purchased.

[102]     As noted
previously, she then obtained part time work at Sunwest Food as a plant
production worker in December, 2008. She began working regular shifts there in
early January 2009. In the meantime, she worked at a Costco store over the
Christmas period.

[103]     From the
beginning of January 2009 to May 2009 she generally worked full-time hours at
Sunwest Food. She missed a few shifts due to the accident injuries. After May
2009 and up until her departure from Sunwest Food in late April 2010 she
typically worked only two days per week, Wednesdays and Thursdays. When she
left Sunwest Food she was earning $12.45 per hour.

[104]     She
started at National Cash Advance working part time as a customer service
representative June 2009, earning $10.50 per hour. She worked in a branch
office, attending to customers who sought short term loans. She worked
approximately 25 to 30 hours per week until May 2010 when she was promoted to
Assistant Manager and given full-time hours. At that time she was being paid
$11.00 per hour at National Cash Advance. Subsequently she was promoted to divisional
training manager and branch manager. When her job at National Cash Advance
ended in February 2012 she was earning $16.30 per hour.

[105]     In
September 2009 she applied for full-time hours at Sunwest Food. She testified
that she sought work as a lead hand, which would be full-time, and would
involve lighter duties and $1 more per hour in pay. However, she did not obtain
full-time hours or a lead hand position. In February 2010 she increased her
availability for work from two days per week to three, by adding Tuesdays.
However, she received few if any extra shifts following this change to her
availability. She worked only 6 shifts at Sunwest Food after March 11, 2010
including her last shift on April 28, 2010.

[106]     She has
been unemployed since the closure of National Cash Advance. She testified that
she has not been able to look for work in warehouse or delivery jobs, or as a
plant production worker. She has looked for work in retail, and with financial
institutions.

[107]     At trial
the plaintiff acknowledged that she needed to work full-time hours in order to
support herself and her daughter. When she left Sunwest Food she told her
employer the reason she was leaving was because she had obtained full-time work
elsewhere.

[108]      The
plaintiff contends that her accident injuries made it difficult for her to keep
up with the work at Sunwest Food and that this was the reason she left to work
at National Cash Advance.

[109]     I accept
that the plaintiff’s injuries made her work at Sunwest Food more difficult and
caused her to suffer pain and aggravation to her injuries. However, she was
managing to cope with the work, with some minor accommodations by the employer.
Although the employees were sometimes exhorted by the employer to work faster,
there is no evidence of any specific complaint by her employer with her work.

[110]     I also
accept that due to her injuries it was prudent to change to lighter, sedentary
work, which was not available at Sunwest Food.

[111]     However,
in my view, the primary motivation for the plaintiff to obtain the job at National
Cash Advance initially was to obtain more hours, which were not available to
her at Sunwest Food. In my view this also accounts for the plaintiff’s decision
to accept the position as Assistant Manager at National Cash Advance in May,
2010.

[112]     I am not
satisfied that full-time hours were available to the plaintiff at Sunwest Food,
or that there was a significant possibility that she would have been able to
achieve a position as lead hand at Sunwest Food but for her accident injuries.
No evidence was called on behalf of the employer about this. When the plaintiff
asked for full-time hours or more hours she was not given them. In my view, on
the evidence, the scenarios suggested by the plaintiff are essentially
speculative. But for the accident, in all likelihood there would have been no
difference in her actual earnings following the accident, other than the loss
of pay for 5 or 6 days directly attributable to her injuries, up until the end
of her work at National Cash Advance in February 2012.

[113]     Her income
for the years 2009 and 2010 was slightly lower than for the pre-accident year,
2008. In 2008 she earned $24,344, whereas in 2009 and 2010 she earned
approximately $22,000. However, until October 2008 she was working full-time at
Discover Books at a somewhat higher wage ($12.50 per hour) than either of her
jobs in 2009 at Sunwest Food and National Cash Advance. In 2011, when she was
working full-time at National Cash Advance she earned $32,902, which was much
more than she had earned in any of the five previous years. Therefore, even if
I were to accept that the plaintiff transitioned from Sunwest Food to National
Cash Advance because of her injuries, the change may have resulted in an overall
increase in her income.

[114]     In light
of the foregoing, I am not satisfied that the plaintiff has established any
loss of value for earnings capacity up to February, 2012 when National Cash
Advance closed, putting the plaintiff out of work.

[115]     As noted,
due to her injuries the plaintiff is no longer capable of heavy work, and must avoid
other activities that could aggravate her neck and shoulder injuries and her
TOS.

[116]     Dr. Salvian’s
opinion is that the most important component of conservative therapy (that is,
without resorting to surgery) for TOS is what he refers to as “good ergonomics.”
He advises that she will need to avoid activities which require overhead use of
the right arm, heavy lifting with the right arm, or repetitive activities with
the right arm. He says as well that she will need a good ergonomic work station
(that is, in an office setting), and assistance with heavy housework. He
further suggests that she avoid repetitive activities such as prolonged
keyboarding or driving. He states that conservative therapy will not provide a
cure.

[117]     On the
basis of Dr. Salvian’s opinion, the other medical evidence, and all of the
evidence in the case, I accept that there is a large range of employment
opportunities that are no longer open to the plaintiff, and have not be open to
the plaintiff since the accident. Specifically, she is no longer capable of the
work she formerly did as a plant production worker at Sunwest Food. While she
was able to cope with that work for about 14 months post accident, the work was
usually only two days per week. She was able to do the work with difficulty.
She has now been advised to avoid such heavy physical work.

[118]     Had she
been uninjured there would have been a broader range of employment
opportunities available to her following February 2012. For example, she could
perhaps have obtained work at Sunwest Food. She could perhaps find work in
warehousing, shipping and receiving, or restaurant or delivery work as she had
done in the past.

[119]     The
plaintiff submits that had she been working full-time at Sunwest Food as a
production worker during 2012, she would have been earning $18.53 per hour by
September 2012, and would have earned approximately $21,000 from March 1 to
September 15, 2012. This gives some indication of the value of her earning
capacity for this time period. The plaintiff produced job postings for various
jobs that she can no longer apply for, which indicate wages in the range of $13
to $16 per hour.

[120]     Based upon
her injuries there is a real and substantial possibility that following the
termination of her employment at National Cash Advance she would have applied
for and obtained such work. The range of jobs that the plaintiff could have
sought and obtained but for her injuries is broad. I consider it more likely
than not that she would have obtained some such work. Her work history shows
that she is industrious and has generally been successful in gaining employment.
It is also possible that she would have remained unemployed in any event.

[121]     I assess
her past loss of earnings capacity at 80% of $20,000, or in other words
$16,000. To that must be added the proven loss of $600 which is acknowledged by
the defendants. The total is therefore $16,600.

[122]     The
parties made no submissions concerning the potential consequences of s. 98
of the Insurance (Vehicle) Act. The parties are at liberty to make
arrangements within 60 days through trial scheduling to make submissions on
this question, either in writing or orally as they may wish.

C.             
Loss of Future Earning Capacity

1.              
Legal Principles

[123]    
The basic principles for loss of future earning capacity were summarized
by Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at para. 30 as
follows:

1.     A future
or hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation [Athey at para. 27],
and

2.    
It is not loss of earnings but, rather, loss of earning capacity for
which compensation must be made [Andrews at 251].

[124]     An award
under this head is only made after the plaintiff has established a “real and
substantial possibility” of a future event leading to an income loss: Perren,
at para 32. Once entitlement has been established, there are two recognized
approaches for assessing the value of the loss; both are considered correct and
therefore the proper approach will depend on the circumstances of each case.

[125]    
Where the loss is more readily quantifiable the award may be predicated
upon an “earnings approach”, where pecuniary loss can be identified by
comparing what the plaintiff would have earned absent the injury with what the
plaintiff is expected to earn in his or her injured condition. However, there
are many cases where that approach is not possible or is inappropriate because
the loss, though proven, is not measurable in a pecuniary way. In such cases it
may be more useful to adopt a “capital asset” approach, where an attempt is
made to assess the loss in value of the plaintiff’s previous earning capacity
as a capital asset that has been lost or impaired: Perren at para 32. In
relation to that exercise, reference may be had to considerations  such as
those enumerated in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

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

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

3. the plaintiff has lost the ability to take advantage
of all job opportunities which might otherwise have been open to him, had he
not been injured; and

4. the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

2.              
Positions of the Parties

[126]     In this
case the plaintiff contends that an earnings approach to quantification is
appropriate, on the theory that, absent the accident, the plaintiff would
likely have continued in her job at Sunwest Food and would have become a lead
hand or taken a higher paying job in the shipping and receiving department. The
plaintiff suggests various specific calculations based upon wage differentials
either to age 65 or to age 70. The plaintiff contends that given her circumstances
she is unlikely to be able to retire at age 65 and will likely work until age
70. Using $19 per hour as the starting point, representing what she would have
earned at Sunwest Food, the plaintiff compares what she would earn at $11, $13,
or $16 per hour, to either age 65 or age 70. The present value of the future
loss is calculated to range from $127,629 ($19 compared with $16 per hour, to
age 65) to $378,124 ($19 per hour compared with $11 per hour, to age 70). The
annual losses are calculated at $6,240, $12,480, and $16,640 respectively. On
this basis, the plaintiff contends that an appropriate award is in the range of
$200,000 to $300,000.

[127]     The
defendants concede that the plaintiff has suffered a loss of future earning
capacity. They contend that the earnings or income approach to quantification is
inappropriate, and that the award should be based upon the loss of a capital
asset approach. They dispute the likelihood that but for the accident the
plaintiff would have stayed at Sunwest Food or earned the posited incomes there.
They further argue that the plaintiff may earn equally remunerative work in a
sedentary setting. They suggest an appropriate award should be based upon two
times the plaintiff’s most recent annual earnings, and that an award of $70,000
would be appropriate.

3.              
Analysis

[128]     It follows
from my findings in relation to past loss of earnings capacity that the
plaintiff has suffered a loss of future earning capacity, as the defendants
rightly concede.

[129]     She has a
substantial impairment of her work capacity due to her injuries. Her impairment
is most significant in relation to the wide range of very physical or
moderately physical which for the most part is the kind of work she has done in
the past. Even in sedentary, office type jobs there is some degree of ongoing
disability, based upon the advice of Drs. Salvian, Vaisler, and Caillier.

[130]     In my view,
but for the accident there was a substantial probability that the plaintiff
would have continued to be employed in the kinds of largely physical jobs that
she was doing when the accident occurred and that she had done in the past. Such
jobs could provide an avenue to better paying supervisory or administrative
jobs. There are many supervisory or lower level management positions that the
plaintiff cannot now obtain because she cannot do the relevant entry-level
work.

[131]     The
plaintiff has only a modest education, and in view of her age, her abilities,
and her socio-economic circumstances, she has a limited ability to retrain for
work that she is suited to.

[132]     On the
other hand, she had some administrative training and some secretarial training
post high school. Clearly National Cash Advance recognized her administrative
skills and promoted her twice. She could have continued in her work at National
Cash Advance had it been available, with some ergonomic accommodations.

[133]     She had
attained supervisory positions in shipping and receiving work at the Saan store
and at Discover Books. However, I infer that she would not have attained these
latter positions had she not had the physical capacity to first work in the entry-level
positions.

[134]     In
relation to the question of past loss of earnings capacity, I concluded that
the plaintiff would likely have left Sunwest Food for the job at National Cash
Advance in any event. This conclusion suggests that the specific scenarios
supporting the earnings approach as contended for by the plaintiff are
inappropriate, as they are all predicated upon the assumption that she would
have stayed at Sunwest Food, working full-time. They are also predicated upon
the assumption that she would earn significantly less in some other position.
There is in fact a possibility that due to her injuries she will earn less on
an annual basis than she otherwise would have. Another possibility is that the
plaintiff will obtain other employment that earns as much or more than she
would have had she in fact remained at Sunwest Food working full-time.

[135]     In
relation to past loss the plaintiff relied upon the 2011 earnings of a lead
hand at Sunwest Food of $38,500, which she compared with her earnings at
National Cash Advance of about $33,000. The difference is $5,500.

[136]     Courts
sometimes resort to using a multiple of prior earnings for guidance when
utilizing the capital asset approach. There is some logic in doing so, as prior
earnings can provide a useful indication of the pre-accident earnings capacity
of the plaintiff. Here, the plaintiff earned about $25,000 in 2008, although
she was unemployed for some time after leaving Discover Books in October. But
for her brief unemployment, I infer she would have earned approximately $30,000
that year. Post accident she earned $33,000 in 2011 at National Cash Advance.

[137]     The
different approaches that may be utilized are not mutually exclusive; they are
simply different ways of attempting to assess the same head of damages: Pallos
v. ICBC (1995), 100 B.C.L.R. (2d) 260, at para. 27. For example, in Simmavong
v. Haddock, 2012 BCSC 473 Justice Greyell considered the plaintiff’s
prospective earnings at reduced hours as compared to full-time hours when
assessing the plaintiff’s loss under the capital asset approach.

[138]     In this
case, a loss of $6,240 per year to the plaintiff’s age 70 has a present value
of $141,796, while a loss of $12,480 per year to age 65 results in a present
value loss of $255,259. As noted, it is possible that her injuries will reduce
the plaintiff’s annual income in future, as she argues. On that approach I
think the first amount is fair but somewhat low, and the second amount is too
high. Another possibility is that she will be more often unemployed or for
longer periods of time due to her limitations.

[139]     I think
the defendant’s approach of taking twice annual earnings provides too low an
amount of compensation, in view of all of the circumstances including the Brown
v. Golaiy considerations and all relevant contingencies, both positive and
negative, I think 5 or 6 times earnings of $30,000 is a better guide in this
case. In all of the circumstances, I assess the plaintiff’s lost earning
capacity at $175,000.

D.             
Cost of Future Care and Loss of Homemaking Capacity

[140]     The
plaintiff claims $330,873 as the cost of future care. The defendant concedes
that some future care costs are appropriate, but submits that reasonable
compensation would be $33,600. The value of the plaintiff’s claims was calculated
by reference to the report of an economist, Robert Carson, dated September 11,
2012. No issue is taken with the manner of calculation.

[141]     In their
submissions, neither party distinguished between future care cost and loss of
homemaking capacity. All of the plaintiff’s claims were put forward on the
basis of future care costs. However, on analysis, in my view some of the
plaintiff’s claims are more appropriately viewed as claims for loss of
homemaking capacity, and I will therefore assess them on that basis.

[142]     As
explained in O’Connell (Litigation Guardian of) v. Yung, 2012 BCCA 57, paras. 65
– 67, although there may be overlap, claims for future cost of care and for loss
of homemaking capacity are distinct. Claims for future cost of care relate to
the value of services that must now be rendered to the plaintiff, whereas a
large portion of homemaking involves the performance of work for others,
namely, the family unit. Damages for the cost of future care serve a different
purpose from awards for loss of housekeeping capacity. Damages for the cost of
future care are directly related to the expenses that may reasonably be
expected to be required by the plaintiff. The full amount is recoverable, although
negative contingencies may be taken into account based on the likelihood that
the cost will be incurred. By contrast, in relation to loss of homemaking
capacity, the award reflects the loss of an asset, and therefore it is not
dependent upon whether replacement housekeeping costs are actually incurred: O’Connell,
at para 67.

[143]     This is
not the first case where I have been presented with claims that are all
presented as cost of future care, when in reality some claims are for loss of
homemaking capacity:  e.g. Power v. White, 2010 BCSC 1084, para. 112,
aff’d 2012 BCCA 197. As O’Connell has made very clear, claims for
cost of future care and claims for loss of homemaking capacity are distinct,
and different principles apply to their assessment: paras. 66 – 67. It is no
longer acceptable for all such claims to be lumped together under “costs of
care”. It is understandable that occupational therapists may not make the
distinction, although it would be helpful if they would attempt to do so, but
it is imperative that legal counsel treat them separately when making their
submissions.

[144]     The
relevant principles relating to the assessment of future care costs were
recently reiterated in Tsalamandris v. MacDonald, 2012 BCCA 239, at paras. 62
– 63, where Harris J.A., for the court, stated:

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

3. The primary emphasis in
assessing damages for a serious injury is provision of adequate future care.
The award for future care is based on what is reasonably necessary to promote
the mental and physical health of the plaintiff.

[63] McLachlin J., as she then was, then went on to state
what has become the frequently cited formulation of the “test” for future care
awards at page 84:

The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable.

[145]     The
defendants relied upon the reminder found in the decision of the court of
appeal in Penner v. ICBC, 2011 BCCA 135 at para. 15, that, “…a
little common sense should inform claims under this head, however much they may
be recommended by experts in the field.”  The comment was in relation to home
care assistive aids or implements in a non-catastrophic injury case.

[146]     The items
claimed will be dealt with in turn, using the same descriptions and headings as
set out in Mr. Carson’s report.

1.              
Pain Management

[147]     The plaintiff
claims for the cost of a heating pad, cervical pillow, and a portable TENS
unit, an electrical device for pain management. The defendants accept these
costs, the present value of which is $2,177.

2.              
Homemaking Assistive Devices

[148]     The
plaintiff claims $1,382 for such things as an extendable duster, long handled
bathroom cleaner, long handled toilet brush, a shopping cart, and a lightweight
vacuum. Based upon the occupational therapist’s report, she is restricted in
her ability to carry out some ordinary household activities to a slight or
moderate degree. I accept the defendant’s submission that these are ordinary
household utensils and there was no evidence of any added cost for lightweight
or extended handled items. As will be set out below, the plaintiff will have
compensation for the cost of assistance with heavier household tasks, thus she
will not require special implements for tasks done by others. In the context of
all the evidence concerning the plaintiff’s abilities and medical condition, I
am not satisfied that the plaintiff has proven the need for this expense nor
the amount of the expense, as distinguished from the expense that would otherwise
be incurred in any event. These expenses are not allowed.

3.              
Household Management

[149]     The
plaintiff claims for the sum of $2,262 per annum, lifetime, as the cost of
homemaking assistance for heavier chores and seasonal cleaning as recommended
by Mr. McNeil, the occupational therapist. This amount is based upon two
hours per week for such tasks as vacuuming and cleaning floors, windows,
bathtubs and toilets. The present value of this claim (including taxes) is
$54,293 according to Mr. Carson’s calculations.

[150]     Mr. Carson
produced a second report which calculates the value of a further claim for $348
per annum for “seasonal cleaning” the basis of which appears to be counsel’s
instructions as reflected in a letter to Mr. Carson dated September 10,
2012. The letter is not in evidence. The claim for $2,262 as set out in Mr. McNeil’s
report already includes “seasonal cleaning”. There is no evidentiary basis for
the additional claim of $348 per annum.

[151]     The
defendants concede that an award for heavier cleaning chores and household
maintenance is appropriate, but submit that the plaintiff’s claim is excessive.
They suggest that two hours per month is more reasonable, for which the present
value would be $11,940. They argue that $10,000 would be reasonable given that the
plaintiff would likely require assistance in her senior years in any event.

[152]     As noted, Dr. Salvian
recommends that the plaintiff modify her activities to avoid aggravating her
TOS. He recommends that she avoid activities which require overhead use of the
right arm, heavy lifting with the right arm or prolonged repetitive activities
with her right arm. If she were forced to overuse her right arm with repetitive
or overhead activities her injuries would worsen and she could develop chronic
pain syndrome, which he says “carries a very bad prognosis and should be
avoided at all costs” in this situation. He says she will need assistance with
heavy lifting, repetitive activities such as wall washing, window washing,
gardening, carrying or washing her daughter or carrying heavy groceries. Dr. Caillier’s
advice was similar to that of Dr. Salvian.

[153]     According
to Mr. McNeill’s report, the plaintiff is slightly restricted in some
areas of household maintenance, and is moderately restricted in other areas
such as shopping, doing laundry, washing floors or cleaning bathrooms. She is
able to make beds and sweep. The video evidence shows the plaintiff engaging in
light shopping activities without apparent difficulty. Some of the activities Dr. Salvian
mentions are perhaps annual or seasonal in nature, such as wall washing or
window washing. She lives in an apartment currently and so, at present,
gardening and outside work is not an issue, and may never become an issue. Carrying
heavy groceries can be avoided using a cart.

[154]     In McTavish
v. MacGillivray, 2000 BCCA 164, the Court of Appeal endorsed the
replacement cost approach to the valuation of lost housekeeping capacity. The
loss of the ability to perform household tasks requires compensation by an
award measured by the value of replacement services where evidence of that
value is available. Thus, the evidence as to replacement cost of the services
which the plaintiff can no longer do forms a reasonable basis upon which to
assess the damages.

[155]     There is
some merit to the defendants’ contention that at some point the plaintiff may
well have required assistance with heavier chores in any event. This is a
relevant consideration in relation to valuation of the loss.

[156]     The
plaintiff’s claim for $54,293 is predicated upon future costs only. In fact,
however, the plaintiff has already suffered a loss of past housekeeping
capacity. There was ample evidence that following the accident and as a result
of her injuries the plaintiff has been unable to maintain her residence to
reasonable standards of order and cleanliness. No claim for past loss of housekeeping
capacity was advanced.

[157]     In my view,
$35,000 represents a reasonable award in relation to this item, in all of the
circumstances of the case, considered as compensation for both past ($5,000)
and future ($30,000) loss of homemaking capacity. In relation to future loss,
compensation of $30,000 will allow the plaintiff to acquire approximately 4 to
5 hours per month of assistance.

4.              
Childcare

[158]     The
plaintiff claims for $43,817 as the cost of future assistance with childcare in
respect of her daughter, A., for five years.

[159]     Once
again, in my view this claim is more appropriately dealt with as a claim for
lost homemaking capacity, even though there is also an aspect of future care to
it.

[160]     As noted,
A. has special needs. She has both cognitive and physical impairments. She is
13 years of age currently. She attends a public school, where she is in grade
five. She is on an Individual Education Plan, which allows her to progress at
her own pace. She is very immature for her age, and in that respect could be
compared to a five or seven year old child. She was described by witnesses as
“hyperactive”. She needs a high level of adult supervision and is very
demanding. She has a very short attention span. She has poor personal hygiene
habits and needs constant reminders to wash, bathe, and in respect of personal
grooming such as combing or brushing her hair. She is unsafe in the kitchen on
her own. She needs some help with bathing, in that she has some physical difficulty
in getting in and out of the bathtub, and with washing her hair. She is
independent in relation to toileting, and feeding herself. She has difficulty
tying her shoes, so she wears Velcro strapped footwear or flip flops. She can
walk, and run, with limitations. She can ride a bicycle or roller-blade, but is
clumsy and is prone to falling.

[161]     The
plaintiff testified that her injuries make it very difficult for her to look
after A. Since April 2010 the plaintiff has had about 6 hours per week of paid
assistance with respect to care for A., through WeCare Home Health Services, a
commercial service. The services are provided by a Certified Care Aide who
attends the residence weekly on a Saturday or Sunday. At the outset of the
provision of services, a Personal Support Care Plan was developed by WeCare
involving making breakfast and lunch for A., assisting her with bathing and
dressing, supervising or participating with her in leisure or recreational activities,
and other general child care duties. The care aide supervises A. constantly. Most
often the plaintiff is absent when the care aide is in attendance.

[162]     Mr. McNeill
attended the plaintiff’s home and concluded that the plaintiff needs assistance
with A.’s care. He recommends 6 hours per week, which coincidentally or not is
the amount that the plaintiff was receiving at the time Mr. McNeill did
his assessment. The cost through the present agency is $22.75 per hour. Mr. McNeill
suggests care for 43 weeks of the year, on the basis that the plaintiff can
rely on family in the summer months. The annual cost is $5,869.50 on this basis.
Mr. McNeill suggests that the need will continue until A. is at least 16
years of age. This claim forms the basis for the plaintiff’s claim of $43,817.

[163]     Mr. McNeill
erroneously states in his report that A. suffers from cerebral palsy, spina
bifida, and scoliosis. In fact, there has been no specific diagnosis of A.’s
conditions. However, no issue was made about this at the trial, and the
specific diagnosis is not material. There is no doubt that A. suffers from
significant cognitive and physical impairments.

[164]     Dr. Salvian
states that the plaintiff will need assistance with heavy lifting and
repetitive activities including “carrying or washing her daughter”, however A.
does not need to be carried, and the washing assistance she requires is not
physically demanding. Dr. Caillier puts the plaintiff’s need somewhat
differently, in saying that, “She also requires in my opinion the respite care
that she has been given to date for her daughter to facilitate management of
her symptoms.”  Dr. Robinson, as well, states that respite care with
respect to A. is reasonable in relation to the plaintiff’s headaches. In
summary, there is ample medical support for limited childcare assistance for
the plaintiff’s benefit.

[165]     The
defendants dispute the amount and level of third party care that A. needs. They
argue that A. is not close to being debilitated. This is true, but on the
evidence it is clear that A. requires a degree of supervision and childcare
which is far beyond the average for any child beyond toddler years.

[166]      The
defendants also argue that, in any event, A.’s needs are not compensable as
they arise from A.’s condition, rather than the motor vehicle accident. The
defendants argue that even able bodied caregivers such as the paid care aid and
others described caring for A. as exhausting, and so, as I perceive the
argument, the plaintiff would have to cope with this difficult burden in any
event.

[167]     At trial, the
plaintiff relied upon the trial level decision in Milliken v. Rowe, 2011
BCSC 1458, in which the court allowed the sum of $30,000 as future care costs
for the benefit of the plaintiff, but in relation to care of the plaintiff’s
disabled husband. The plaintiff’s husband had become disabled about three years
after the accident. The trial judge, Justice B. Davies, held that despite the
fact that the husband’s disability arose well after the tort, the claim was not
too remote. In a decision released after this trial, the majority of the Court
of appeal disagreed, and held that the claims relating to the husband’s care
were too remote: see Milliken v. Rowe, 2012 BCCA 490. In dissent, Donald
J.A. would have affirmed the award as a loss of care-giving capacity, which he
considered analogous to a loss of homemaking capacity, but in his view,
important and distinct enough that it should be analyzed as a separate category
of loss and compensation.

[168]     In the
case before me, A.’s condition and her special needs for assistance predated
the tort; therefore the basis upon which the majority in Milliken held
the claims were too remote does not arise.

[169]     As noted,
the defendants contend that A.’s care needs are caused by her condition, not
the motor vehicle accident. Of course that is literally true, but it does not
address the question of whether the plaintiff should be compensated for her
lost capacity to care for A.’s needs.

[170]     The
accident has not changed A.’s condition or needs. What has changed is the
ability of the plaintiff to care for A., and also the plaintiff’s need for
assistance with A.’s care in order to advance the plaintiff’s own health and
rehabilitation. On the medical and other evidence at trial, the plaintiff needs
help with child care for A. in order to support the plaintiff’s own health and
rehabilitation, and to support her continued ability to function as she could
have done but for her injuries. Awarding damages for the cost of A.’s care is
not for A.’s benefit; it is for the benefit of the plaintiff, and also to
replace a lost capacity the plaintiff would have otherwise had. This is
compensable as a discrete loss of homemaking capacity, or as Donald J.A. termed
it, a loss of care-giving capacity. In my view, there is doctrinal overlap, in
the sense that on the facts of this case the claim is also justified as future
cost of care. However compensation is called for in order to restore the
plaintiff to her original position; that is the position she would have enjoyed
but for the negligence of the defendant: Athey, at para. 20.

[171]     I accept,
therefore, that the plaintiff is entitled to compensation for the cost of
limited assistance with A.’s care. While claims for lost capacity are not usually
matters of precise arithmetic calculation, in my view in the circumstances of
this case the sum claimed, $43,817, represents a reasonable assessment of the
loss.

[172]     There is in
my view no need to discount the claim further for contingencies. I observe that
the claim as advanced is already partial, in that compensation is sought for 6
hours per week, for 82% of the year, and for five years, only. There was no
indication in the evidence that the need will diminish significantly within
that relatively short time frame. The claim as presented is moderate,
reasonable, and justified.

[173]     The
plaintiff has also claimed for $22,764.25 as out of pocket special damage
expense in relation to the amounts paid to date to WeCare. As this was advanced
as a special cost I will refer to this below in that section of this judgment.

[174]     The
plaintiff further claims for an additional amount of $30,840 as child care
costs, should she have a second child, perhaps in 2014. The need for this is
entirely speculative. Moreover, I note that if the plaintiff were to have
another child, it would be reasonable to assume that a father would have child
care and financial responsibilities. The circumstances with A. are unusual, in
that she has special needs and her father is providing no assistance of any kind.
This claim is rejected.

5.              
Office Ergonomics

[175]     The
plaintiff claims $12,508 for the future cost of office ergonomic assistance and
aids such as computer monitor arms, ergonomic chairs, footrests, telephone
headsets, future ergonomic assessments, and so on. Dr. Salvian states that
the plaintiff will need a good ergonomic workstation. The cost as claimed is
based primarily upon a job site assessment conducted by Mr. McNeill at
National Cash Advance in September, 2011. The plaintiff no longer works there. The
defendants properly concede that an ergonomic assessment and some ergonomic
items may be necessary in future when the plaintiff obtains the kind the
sedentary office based work for which she is suited, but submit that $2,000 is
a reasonable assessment of the loss.

[176]     I observe
that the precise needs are not presently known. Mr. McNeill’s assessment
was partially based upon the plaintiff’s unusual needs for ergonomic assistance
at three separate locations of National Cash Advance. About 70% of the claim is
for ergonomic chairs, for three locations. I also observe that many of the items
said to be required would be appropriate for any worker whether injured or not,
and it would ordinarily be the employer’s responsibility to provide an
ergonomically appropriate workplace in all cases. Furthermore, employers have a
duty to accommodate disability. I consider it likely that much of the claim
would not be required or spent for this need. A large negative contingency is
therefore appropriate. In my view, the sum of $3,500 is reasonable.

6.              
Rehabilitation

[177]     The
plaintiff claims for $132,727 for items such as physiotherapy, massage therapy,
a kinesiologist, a gym pass, and exercise equipment.

a)              
Physiotherapy – $34,016

[178]     Mr. McNeill
suggested 6 physiotherapy sessions for a total cost of $330. Physiotherapy
sessions cost $55 per hour. However, the plaintiff’s claim is for annual
lifetime expense of $1,490.40, based upon two sessions per month at $62.10
each, for life.

[179]     Dr. Salvian
suggests Feldenkreis type physiotherapy as a means of attempting to relax the
paraspinal mucles. He does not state the number or duration of treatments. I do
not interpret his evidence to suggest that physiotherapy should continue
indefinitely. Dr. Salvian also states that the plaintiff has significant
ongoing symptoms and limitations she may need to be considered for surgery, with
an 80% chance of improving her symptoms. While the plaintiff has ruled out
surgery, she may have to reconsider, in which case the need for physiotherapy
would likely be eliminated.

b)              
Massage therapy – $73,949

[180]     Dr. Salvian
states that massage therapy is not curative in relation to TOS, but may be
beneficial particularly when a patient has “overdone it.”  I interpret this to
mean that the plaintiff may benefit from massage therapy on an as needed and
occasional basis. Dr. Caillier suggests massage therapy two to three times
per month to facilitate management of her TOS symptoms. She says that typically
she does not recommend passive treatment (such as massage therapy), but massage
therapy “can be beneficial” for managing TOS symptoms.

[181]     The
plaintiff claims for 3 massage sessions per month, at $90 per session, for life.

c)              
Kinesiologist – $2,304

[182]     In
relation to her neck and shoulder pain, and her headaches, Dr. Caillier
recommends a lifelong exercise program, as well as participation in kinesiology
sessions. As noted, Dr. Caillier recommends kinesiology in relation to TOS
as well. The plaintiff submits that the cost of 27 kinesiology sessions would
be $2,304.

d)              
Gym pass – $21,751

[183]     The
plaintiff claims for an annual gym pass at a cost of $953. The present value of
the claim is $21,751.

e)              
Medications – $8,259

[184]     The
plaintiff claims for lifetime Aleve pain medication, $864, and Zomeg (Triptan),
24 pills per annum, lifetime, for which the present value cost is $7,395. The
plaintiff reported to Mr. McNeill that she takes Aleve pain medication,
one pill, 2 or 3 days per week. Dr. Caillier suggested that she “may
benefit from taking triptan on an as-needed basis, particularly if she finds
her headaches are very severe…”

f)               
Botox – $36,518

[185]     The
plaintiff claims for four Botox injections per annum, at a cost of $400 each,
for life. To date, she has had two such sessions. Dr. Caillier suggests
that if the plaintiff is not achieving benefits with Botox injections she may
have to consider surgery. In her evidence Dr. Caillier suggested that the
plaintiff could benefit from 3 sessions per year.

[186]     The
duration of benefits from Botox is unclear. There can be diminishing benefits,
but according to Dr. Caillier some patients have continued with such
treatments for up to 9 years.

g)              
Exercise Equipment

[187]     The
plaintiff claims for an exercise mat, exercise balls, and weights, amounting to
a cumulative cost of $707.

h)              
Discussion – Rehabilitation Expenses

[188]     The
defendants contend that $21,600 is reasonable, in total, in relation to these
claims. Of this $11,100 is for massage, physiotherapy and kinesiology, $6,000
is for Botox, and $1,800 is for pain medications (Aleve, and triptan). An
additional $500 is for exercise equipment. The other $2,200 is for the pain
management items previously discussed.

[189]     It is
clear that the plaintiff’s claims as presented are, globally, at the very
highest possible amounts in relation to these items. I view the claims as
significantly exaggerated in relation to the medical evidence. In an overall
sense, I view the claims as unreasonable in relation to the plaintiff’s medical
condition, the medical evidence, and the plaintiff’s likely actual future
expense.

[190]     In my
view, there will be some natural limit to the duration of “conservative”
therapies such as Botox, physiotherapy, and massage therapy. I would expect
that after a few years the plaintiff will adjust to her condition and reduce
her dependence upon treatments, or if her conditions worsen significantly, then
she may, if fact, have to reconsider undergoing surgery for her TOS. Dr. Caillier
stated in her evidence that if Botox does not work for the plaintiff, the next
step would be surgery.

[191]     The
defendant submits that five years of treatments with Botox, massage and
physiotherapy is reasonable, with Botox injections every 4 months and monthly
massage therapy and physiotherapy.

[192]     In my
view, some further physiotherapy should be attempted, as suggested by Dr. Salvian.
There is no medical basis for continuing with the treatment for life. Regarding
massage therapy for her TOS, I favour Dr. Salvian’s evidence that she may
benefit from massage therapy on as needed, periodic basis. However, I am also
mindful of the plaintiff’s evidence that she felt she was benefiting from a
combination of Botox injections periodically, and physiotherapy.

[193]     In my
view, doing the best I can with the evidence, it is reasonable to provide an
award which would be sufficient to fund continuation of Botox injections and
some further physiotherapy and massage therapy for a period of seven years.

[194]     Taking the
evidence together, in my view $25,000 is a reasonable amount of expected future
costs for physiotherapy, massage therapy, and Botox treatment, taking all
contingencies into account.

[195]     Dr. Caillier
strongly emphasized the benefits of exercise. She also suggested kinesiology
assistance. However the plaintiff has shown limited interest to date in
participating in exercise programs. She attended eight exercise sessions beginning
in early March 2011, over the course of about one month. When she saw Dr. Caillier
on October 23, 2011, Dr. Caillier referred her for further strengthening
and conditioning with a trainer. Instead of following this advice, the
plaintiff pursued massage therapy and physiotherapy in 2012. During examination
in chief she testified that she planned to continue with Botox, massage and
physiotherapy treatments. She did not mention kinesiology or personal trainers
or exercise programs. I have some doubt as to whether the plaintiff would
attend any kinesiology sessions at all, let alone all 27 sessions claimed for. Nevertheless,
it has been recommended and I accept that it would be beneficial and that the
plaintiff could incur the expense. $1,000 should be allowed for this expense.

[196]     The
plaintiff has purchased a gym pass for the past two years, at a cost of about
$950 per year. She has claimed for this as special damages. I have noted what I
perceive to be limited interest in formal exercise on the part of the plaintiff.
I therefore doubt that the award would be utilized in full. I also note that
there are typically costs associated with exercise, whether a person is a
victim of a tort or not. Just about anyone would be glad to receive a free gym
pass for life. However, in principle, only the extra costs necessitated by the
injury are compensable. Doing the best I can with the evidence, in my view
$5,700 represents a reasonable assessment of the increase in exercise
expenditures that the plaintiff is likely to incur as a result of her injuries,
after taking into account all contingencies. This sum includes the exercise
equipment claims of about $700.

[197]     I do not
accept the claim for triptan medication as presented. In my view $2,000 is a
reasonable amount for pain relief medication.

[198]     In summary,
the total award for rehabilitation expenses is $33,700.

E.              
Special Damages

[199]     The
plaintiff claims for special damages in the amount of $31,184.06.

[200]     The
defendants concede the sum of $6,500. They dispute:

1.     $22,764.25
for child care;

2.     $1,945 for
gym memberships and for swimwear.

[201]     It follows
from my conclusions set out above in relation to childcare that I accept that
the WeCare expense is caused by the plaintiff’s injuries and is compensable in
this case as a necessary out of pocket expense caused by loss of homemaking
capacity. I agree with the defendants that the claim for swimwear ought to be
regarded as an ordinary living expense.

[202]     I accept
that the plaintiff incurred the expense involved in relation to the gym
memberships in an effort to mitigate her loss, and based upon medical advice.
She has managed to reduce her weight slightly. I accept that these claims have
been established.

[203]     In the
result, special damages are assessed in the amount of $31,116.78.

V.             
Conclusions/Summary

[204]    
A summary of the award is as follows:

[205]    
Subject to any submissions that the parties may wish to make, the
plaintiff is entitled to costs on Scale B. The parties are at liberty to make
arrangements to make submissions with respect to costs within 60 days of these
reasons. Submissions may be made in writing or orally as the parties may wish.

“Verhoeven J.”