IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130419

Docket: M085184

Registry:
Vancouver

Between:

Paula Cheri
Jurczak

Plaintiff

And

Victor Mauro,
Kathleen J. Rysiew

and Roadway Towing
Ltd.

Defendants

Before:
The Honourable Mr. Justice Silverman

Reasons for Judgment

INTRODUCTION

[1]            
This judgment concerns an assessment of the plaintiff’s damages arising
out of a motor vehicle accident (“MVA”) of December 22, 2006.  Judgment is
sought only against the defendant Mauro (“the defendant”).  By agreement, the
matter is no longer proceeding against the other two defendants.

[2]            
The MVA was a rear-ender.  Liability is admitted, and the defendant does
not dispute that the plaintiff was injured as a result.

[3]            
The parties do disagree with respect to how significant the impact was. 
The plaintiff testified, and argues, that the impact was significant.  The
defendant argues that it was a “minimal fender bender” and that he was
travelling at minimal speed just prior to impact.  He was not injured at all.

[4]            
The evidence indicates that the damage to the plaintiff’s vehicle
amounted to $4,800, although that evidence provides little assistance in
determining the force of the impact, or the extent of any injuries.

[5]            
The plaintiff claims damages under the following headings:

1.       non-pecuniary;

2.       past
wage loss;

3.       loss
of earning capacity;

4.       future
care;

5.       housekeeping;
and

6.       special
damages.

[6]            
The plaintiff gave evidence on her own behalf.  Her father and several
co-workers/friends also gave evidence on her behalf with respect to changes
they had observed in the plaintiff since the accident.

[7]            
The defendant gave evidence with respect to the extent of the impact of
the accident.  Also called by the defendant were two witnesses who work in the
same field as the plaintiff who testified with respect to their understanding
of the type of work that the plaintiff did, and the type of work that might be
available to her.

[8]            
In addition to the foregoing, three expert witnesses gave evidence:

1.       Dr.
Rhonda Shuckett – a rheumatologist called by the plaintiff;

2.       Dr.
John Wade – a rheumatologist called by the defendant; and

3.       Kevin
Turnbull – an economist called by the plaintiff.

PRE-MVA

Health

The Plaintiff’s Argument

[9]            
The plaintiff argues that she was in good health prior to the MVA.  Dr.
Wade noted that she had “no major musculoskeletal complaints before the accident”.

[10]        
In October of 2000, she visited a neurologist, Dr. Beckman, with respect
to a workplace injury.

[11]        
Her only significant pre-MVA health issue was her kidney stones, and at
most this caused her to miss one or two days per year from work.

The Defendant’s Argument

[12]        
The defendant argues that the plaintiff had a number of relevant pre-MVA
health issues:

1.       an
October 2000 visit to Dr. Beckman;

2.       unusual
posture; and

3.       kidney
problems.

[13]        
Dr. Beckman’s consult report of October 6, 2000, notes symptoms similar
to those experienced after the MVA.  The plaintiff had headaches associated
with sensitivity to light and sound as well as dizziness.  She also had
heaviness and weakness in her right arm with some pain in her neck and right
shoulder which Dr. Beckman attributed to soft tissue pain.

[14]        
The plaintiff’s unusual posture has been commented on by many of the
doctors she has seen and may also have been a coexistent and contributing
factor to her post-MVA problems according to Dr. Watterson in his consult
report of March 6, 2008.

[15]        
The plaintiff’s long-standing history of kidney problems has required
ongoing medical attention.

Employment

[16]        
At the time of the MVA, the plaintiff was 37 years old.

[17]        
By 2003, she had a Bachelor of Social Work degree and a Master’s degree
in Counselling Psychology.

[18]        
Before the MVA, the plaintiff had for many years worked about two days a
week with various social service agencies (“agency” or “agencies”) as a child
and family therapist.   The other three days a week she worked in her private
practice as a child and family therapist. She had started her private practice
about five years before the MVA and was trying to develop it.

[19]        
For her agency work, she was paid approximately $24 an hour.  In her
private practice, she was charging clients between $45 and $95 an hour.

[20]        
She had developed a particular interest in working with children with
special needs especially, but not exclusively, autistic children. She had
become interested in a fairly new therapy known as Development, Individual
Differences, Relationship-based (“DIR”) Floortime therapy.

[21]        
Before the MVA, she had started taking some courses towards becoming
certified as a DIR Floortime consultant. By 2004, she had completed the
introductory courses towards this goal.

[22]        
In August of 2006, the plaintiff left her part-time work at one agency,
and had commenced working at another.  In December of 2006, she gave notice at
that agency and arranged a job working part-time with a third such agency to
commence in January of 2007.

[23]        
The MVA occurred before she could start that part-time job.

POST-MVA

Health

The Plaintiff’s Argument

[24]        
With respect to her post-MVA health, the plaintiff relies upon her own
evidence, and that of various friends, relatives, and work colleagues who gave
corroborative evidence about their observations of her abilities, moods, and
changes in her life since the MVA.

[25]        
She suffered injuries to her thoracic spine, neck and shoulders.  She
also developed severe headaches, numbness and tingling in her right arm and
hand.  The evidence indicates that this is likely thoracic outlet syndrome
(TOS).

[26]        
Her mid-back complaints eventually resolved, but she has been left with
constant neck pain, stiffness and restriction of movement.  She was also left
with constant pain and stiffness between and across her shoulder blades.

[27]        
She commenced physiotherapy prior to beginning to return to work in
March of 2007.

[28]        
In March of 2007, she saw Dr. Beckman complaining of headaches, right
arm numbness, dizziness, and photophobia, however her symptoms had generally
begun to clear up.

[29]        
In 2008, she was referred to a rheumatologist, Dr. Watterson.  He
recommended that she return to her physiotherapist, and suggested acupuncture
or Botox.  She also saw Dr. Weiss, who recommended against her taking Botox.
She followed the latter’s advice.

[30]        
In 2010, she returned to see Dr. Watterson.  He again suggested
acupuncture.

[31]        
In December of 2010, she tried acupuncture which she considered to be a
failure.  She testified that not only did it not work, but it set her back in
her recovery.

[32]        
The plaintiff was involved in a subsequent MVA on October 28, 2011 (the
“2011 accident” or the “accident”).  The plaintiff argues that the 2011
accident should be considered irrelevant.  Only the plaintiff gave evidence at
trial regarding any injury related to the 2011 accident, and her evidence was
that she was not injured at all.  There is no evidence from which the defendant
can successfully suggest that the plaintiff suffered any injury at all in the
accident, or that any of her ongoing complaints of injury are the result of the
accident.

[33]        
In 2012, her right arm and hand symptoms worsened in intensity,
duration, and frequency. She saw Dr. Weiss, Dr. Shuckett and Dr. Wade regarding
these symptoms.

[34]        
She still has headaches, although they occur less frequently.  The
numbness and pain in her arm and hand improved for a time, but are now
worsening again.

[35]        
She is in pain every day.  She has to follow a daily routine of
exercises, painkillers, and heat wraps to get through the day.  When her
symptoms worsen, she returns to physiotherapy.

[36]        
She has followed her doctor’s advice on all therapies and treatments,
except that she has declined to take Botox, about which she has received
conflicting advice.

The Defendant’s Argument

[37]        
The plaintiff declined medical attention at the scene of the MVA, even though
it was offered.  X-rays taken later that day were normal.  She followed up with
her doctor after a week.

[38]        
She began to note improvement as early as February 2007 and reported
this to her family doctor.  She testified that there had been improvement when
she returned to work at the beginning of March 2007.  She indicated that her
headaches were less frequent, her right arm was only occasionally tingly, the
pain in her lower back had cleared up, and her balance and memory problems had
resolved.

[39]        
The foregoing is confirmed by Dr. Beckman in his consultation report of
March 22, 2007.  He notes that her headaches had decreased in frequency and
severity and that her right hand and arm symptoms had been resolved completely
for the previous three weeks.

[40]        
In April of 2007, the plaintiff reported to her family doctor, Dr.
Parnes, that she was feeling recovered to the extent of 7 out of 10.  In
October of 2007, she said she felt recovered 7.5 to 8 out of 10.  She repeated
that at her examination for discovery in March of 2010.

[41]        
The plaintiff failed to tell any of her doctors, treating or consulting,
about the 2011 accident.

The Medical Evidence

The Plaintiff’s Argument

[42]        
The plaintiff called Dr. Shuckett as an expert in rheumatology who
called the plaintiff’s condition myofascial pain syndrome.  She also diagnosed
TOS.

[43]        
Dr. Shuckett testified that since more than five years have passed since
the subject MVA, and the plaintiff remains symptomatic, she has probably
attained maximum medical improvement.  It is probable that she will be left
with her current symptoms indefinitely.

[44]        
She testified that many studies note that patients do not improve much
more than two years after a whiplash.  While it is possible that there might be
further improvement after that time period, it is unlikely.

The Defendant’s Argument

[45]        
There are no opinions in evidence from any of the treating physicians.

[46]        
Dr. Wade was called by the defendant as an expert in rheumatology.

[47]        
He concludes that the plaintiff had symptoms of moderate mechanical neck
pain and mild upper mechanical thoracic pain which could in part be explained
by the plaintiff’s high thoracic kyphosis and possible mild scoliosis.  The
symptoms of right TOS were mild.  At the time she was examined by Dr. Wade, the
plaintiff described her neck pain as “intermittent”.

[48]        
He ultimately felt that the symptoms of mechanical neck and back pain
were in part residual from the subject MVA.  He noted that the similar problems
she experienced with headaches and right arm pain in 2000 suggested a possible
pre-existing structural problem dating back to that time.

[49]        
He described her ongoing TOS symptoms as being related to muscle spasm
which is reversible with appropriate rehabilitation.

[50]        
He agrees that it is “true statistically” that whiplash injuries are not
likely to improve very much after two years, but says that this may be
different for any particular individual.  There is no reason from a medical
perspective to suggest that she will not further improve.  He believes that she
would benefit from more rehabilitation, primarily physiotherapy.  He suggests
at least twice a week for six to 12 months, after which she must learn to
incorporate what she is taught into her daily life.  He thinks there is a
possibility for surgery but this is low, possibly 5%.

[51]        
He also expressed the opinion that the plaintiff has been successfully
“accommodating” her symptoms and that she will continue to do so.  He believes
that she can continue to increase her work to a level similar to what she was
working prior to the MVA.

[52]        
Dr. Shuckett’s opinions should be considered in light of the following:

1.       She
did not have entirely accurate information from the plaintiff.  The plaintiff
had overstated the damage to the vehicle and had failed to advise the doctor of
the 2011 accident, which had occurred less than four months prior to her
assessment.

2.       Dr.
Shuckett’s diagnosis is essentially one of soft tissue injuries and the
prognosis that the plaintiff has reached maximum medical improvement.  While she
does not expect further improvement, neither does she suggest any deterioration
or worsening of the plaintiff’s condition in the future.

Employment

The Plaintiff’s Argument

[53]        
Following the MVA, the plaintiff was off work for approximately two and
a half months.  She has never returned to working for an agency, including the
one with which she had arranged, shortly before the MVA, part-time employment
to begin in January 2007.

[54]        
Beginning in about March 2007, she started seeing clients again in her
private practice, at first working about three hours a week (usually three
clients at one hour each).  By late spring/early summer 2007, she was working
about 10 hours a week.  By the fall of 2007, she was able, most weeks, to work
about 12 to 15 hours a week, but sometimes less.

[55]        
From 2008 to 2010, while continuing to work private practice hours, she
completed the courses for her DIR certificate.  Today she is the only person in
British Columbia certified as a DIR Floortime consultant.

[56]        
After she completed the first level of the DIR Floortime program in
2008, she was listed on the DIR website as a DIR Floortime therapy provider. 
Once this happened, her private practice began to expand.  She has developed a
reputation for handling some of the most severely challenging autistic and
special needs children.  She has a long list of interested potential clients.

[57]        
DIR Floortime therapy is a type of play therapy that therapists use for
primarily autistic children or children with significant mental health
problems.    This type of therapy requires the therapist to literally get down
on the floor with the child and work on finding ways to engage the child with
their parents and others.  The children are often non-verbal and frequently
violent.  Screaming, hitting, and running around are common.  The plaintiff’s
job requires her to be very physically active with the children in an effort to
engage them in appropriate human contact.

[58]        
By 2009, she was finally able to work 15 hours a week on a consistent
basis.  Since then she has, from time to time, tried to increase her hours to
18 hours a week, but she has not been able to maintain this consistently.  She
continues to average 15 hours a week.

[59]        
Despite many treatments, therapies, medications and investigations by
specialists, she has not improved over the last few years.  In fact, if
anything, she is getting worse.

[60]        
To accommodate her symptoms, she sees only about three clients a day and
spaces out the appointments so she has breaks between them.  When her symptoms
get especially bad, she returns to physiotherapy.

[61]        
Even though she has only been working a 15-hour week over the last
several years, her income has increased.  This is because she earns a much
higher hourly rate as a DIR consultant than she did as a traditional social
worker.

[62]        
Before the MVA, she worked at various agencies and was paid
approximately $24 an hour.  In her private practice, she was charging clients
between $45 and $95 an hour.  Since the MVA, she has never returned to agency
work.  Today, she charges between $125 and $150 an hour in her private
practice.

[63]        
Before the MVA she was earning around $35,000 to $40,000 per year. 
Today she earns from $60,000 and $80,000 per year.

[64]        
Even before the MVA, her intention had been to build up a private
practice.  If she were physically capable, she would be working 30 billable
hours a week, which she considers would be full-time work.  Instead, she works
half that amount.

[65]        
The plaintiff argues that she is in significant demand and could be
earning more than double what she is currently earning if she could work
full-time hours.

[66]        
Her claim that she would be working 30 billable hours a week is
reasonable, as it allows for ample time for administrative tasks, promotion and
continuing education.

The Defendant’s Argument

[67]        
The defendant argues as follows:

1.       The
plaintiff’s reliability on the issue of her employment must be examined
closely.

2.       The
number of hours of work lost as a result of the MVA was minimal.

3.       It
was never the plaintiff’s intention, prior to the MVA, to increase her private
practice hours.

4.       After
the MVA, the plaintiff returned to working more hours, more quickly, than she
testified to.

5.       From
an employment/income point of view, the plaintiff has benefitted from the MVA.

[68]        
The plaintiff’s reliability on this issue must be examined closely:

1.       A comparison
of her evidence at trial to what she told her various doctors requires
scrutiny. 

2.       Her
comments to Dr. Parnes, as noted in Dr. Parnes’ clinical notes, are
inconsistent with her testimony in court with respect to how many hours she was
working pre-MVA and how quickly she was back to working 15 hours per week.

[69]        
The number of hours of lost work, as a result of the MVA, was minimal.    She
was off work for less than three months post-MVA.

[70]        
It was never the plaintiff’s intention, prior to the MVA, to increase
her private practice hours:

1.       Prior
to the MVA, she had never come close to working 15 private practice hours per
week.

2.       The
plaintiff had had her private practice since 2001.  From that date until the
end of 2006, her self-employed hours worked were always significantly less than
half the number of hours she worked as an employee of an agency.

3        Shortly
before the MVA, in December of 2006, she had arranged new part-time employment
with a new social service agency to commence in January of 2007.

4.       She
suggests that her interest in DIR therapy dated back to the late 1990s and she
undertook a pre-requisite course in 2004. Yet it was not until 2008 that she
pursued certification. Clearly this was not something the plaintiff intended to
seriously pursue until she had the time and opportunity to do so post-MVA.

[71]        
After the MVA, the plaintiff returned to working more hours, more
quickly, than she testified to:

1.       According
to the plaintiff’s reports to Dr. Parnes, she was working up to nine hours per
week in her private practice by April 17, 2007. Within two months of the MVA, she was able to build her private practice beyond
the six private practice hours per week that she averaged in 2006, according to
Mr. Turnbull.

2.       On
July 5, 2007, Dr. Parnes noted that the plaintiff told her that she "hoped
to go back to full work slate which is 20 hours per week by
August/September".  This must have meant a full slate including her six
hours of private practice in combination with the 14 agency hours she had been
working prior to the MVA.

3.       By
August 2007, Dr. Parnes noted the plaintiff was working up to 15 hours per week
and on October 11, 2007, she noted the plaintiff was working 12 to 15 hours
which is "close to her pre-accident load".

4.       The
reports to Dr. Parnes indicate that the plaintiff has been seeing clients 15
hours per week since December 20, 2007. She has continued at this level,
occasionally working as much as 18 hours per week.

[72]        
From an employment/income point of view, the plaintiff has benefitted
from the MVA:

1. While
she lost the agency job (which was to commence in January, 2007) as a result of
the MVA, it provided her with the
opportunity to build up her private practice to a degree it had never been
before.

2.       Having
lost the part-time agency job set to commence in January of 2007, she took the
opportunity to increase her volunteer counseling and pursue certification in a
new type of therapy.

3.       As
the plaintiff is now focused solely on private practice, which is more lucrative
than working for an agency, she is making more money than she did before the MVA.

[73]        
The plaintiff has earned much more income since, and as a result of, the
MVA.  Her past wage loss has been zero.

RELIABILITY

[74]        
The defendant argues that the Court should be concerned about the
reliability of the plaintiff’s evidence, due to a number of inconsistencies
that appear when comparing her evidence to objective facts, and to comments
that she made on earlier occasions:

1.       With
respect to the MVA:

(a) The defendant disagreed
with the plaintiff’s account of how fast he was travelling at the time of
impact.

(b) She overstated to Dr.
Shuckett the dollar value of the damage to her vehicle caused by the MVA.

2.       With
respect to the significance of other incidents which potentially may have
caused injury:

(a) The plaintiff failed to
advise any of her doctors, treating and consulting, about the 2011 accident.

(b) She told different
doctors different things about whether or not she had symptoms from an incident
in 2008 when she had been hit by a stroller.  She reported to her family
doctor, Dr. Parnes, that she developed neck stiffness and pain in her right
knee after the stroller incident, but told Dr. Shuckett that she had not
been injured at all.

3.       She
tends to understate the significance of her other health problems, including:

(a) her
kidney condition;

(b) the
extent of the symptoms reported to Dr. Beckman in 2000; and

(c) the
stroller incident of 2008.

4.       She
told different doctors different things at different times.  For example:

(a) There are inconsistencies
when comparing her evidence to what she reported to various doctors concerning
when she had been able to return to work on a full-time basis.

(b) She told different
doctors different things about whether or not she had symptoms from an incident
in 2008 when she had been hit by a stroller.

(c) She told different
doctors different things about the extent to which she considered herself
recovered at various times.

(d) She told Dr. Shuckett
that her neck pain was always there to some degree but advised Dr. Wade that it
was intermittent.

5.       She
testified inconsistently about the need and/or possibility of re-training if
she were to do a less strenuous type of work:

(a) She testified that she
would have to stop working if she were going to re-train, but also stated that
she completed the DIR training while working at essentially her current level
of 15 hours per week.

(b) She testified that she
would not be able to go back to agency work because she would need to obtain
medical certification as to her fitness.  However, other evidence suggests that
such certification may be unnecessary.

6.       Her
self-description about her own abilities has internal consistencies in it:

(a) The description of the
person who is partially disabled:

i. She requires three days
to clean her bathroom, and takes numerous trips to her car to unload a box of
paper.

ii. She is in great pain,
and has difficulty going out for dinner or a movie.  She cannot walk more than
15 to 20 minutes, and then may be curled up on the bed due to muscle spasms.

(b) The description of the
person with abilities consistent with being fully recovered:

i. She embarked upon and
successfully completed an intense certification program, and in a short time
has been recognized in that organization as a leader.  She travels to
conferences, gives presentations, networks extensively, and works exclusively
with the most challenging special needs children.

ii. She is able to support a
three-year-old upside-down for 30 minutes, conduct a bear hug for the bulk of a
session, and play tag with a nine-year-old for 40 minutes.

7.       There
are inconsistencies with respect to whether, before the MVA, she had intended
to eventually stop working part-time at agencies and instead work full-time in
private practice.

8.       She
testified that she moved into her parents’ home to save money to purchase her
own place and that things are tight financially, yet her income tax records
clearly show that she is earning much more than she was prior to the MVA.

[75]        
I am satisfied that the plaintiff has not deliberately attempted to
mislead me with respect to any of the foregoing.  I am satisfied that she has
attempted to tell the truth.  Having said that, I am satisfied that there are a
number of inconsistencies, some of which are noted above, which do have a
bearing on her reliability.  I am also satisfied that most of those
inconsistencies are easily and innocently explainable by reference to the
context in which she was speaking.  When she said various things at various times
to various doctors about the pain she was having, the difficulties it was
causing her, and the extent to which she felt recovered, I am satisfied that
each of those comments was true when she was speaking them.  This is consistent
with the evidence that her condition varied, that it continues to vary, and
that she feels more pain and has more difficulties some days over others.  I
accept that.

[76]        
The issue that causes the greatest difficulty is her failure to report
the 2011 accident to any of her doctors.  This is of concern for several
reasons, including:

1.       her
symptoms appear to increase in the several months following the accident; and

2.       to
what extent would the opinions of the doctors, especially Drs. Shuckett
and Wade, be affected if they had known about this accident?

[77]        
The plaintiff argues that the only evidence about injuries from the 2011
accident is her evidence.  She testified that she was not injured at all. 
However, in that regard, I am satisfied that the increase in her symptoms after
that date is circumstantial evidence from which it can be inferred that she did
suffer some injuries in that accident, and I consider that fact in assessing
her damages.

[78]        
However, even that inference allows me to conclude no more than that
those injuries created nothing more than a temporary aggravation of the
injuries which she had already suffered in the subject MVA.  I am satisfied of
this because it is consistent with the plaintiff’s failure to report the 2011
accident to any doctors.  In other words, I am satisfied that if she were
seriously injured, she would have sought medical attention.

DAMAGES

Non-pecuniary damages

The Plaintiff’s Argument

[79]        
I have been referred to several cases with similar background and
injuries to the present case as guidelines for the appropriate range of
damages: Durand v. Bolt, 2007 BCSC 480; Kaleta v. MacDougall,
2011 BCSC 1259; and Clark v. Kouba, 2012 BCSC 1607.

[80]        
The plaintiff suggests that the foregoing cases provide support for an
award, in this case, in the range of $85,000.

The Defendant’s Argument

[81]        
While the plaintiff’s symptoms have been ongoing for over six years
post-MVA, her x-rays, bone scan and MRI have been clear. She has ongoing
complaints but does not meet the criteria for a diagnosis of chronic pain
syndrome. While dramatic improvement in her current symptoms is not forecast,
neither are they expected to deteriorate. Further, treatment options have been recommended
which would indicate some potential for further improvement.

[82]        
There have been recommendations made to the plaintiff which she has not
pursued, including Botox injections, warm aqua pool therapy, more time spent
walking, and Pilates.

[83]        
The defendant does not argue that there should be a reduction in damages
in this case due to a failure to mitigate, but does argue that the plaintiff’s
failure to pursue the recommended treatment options goes to her motivation to
change her current situation.

[84]        
The defendant relies on the following cases with similar background and
injuries as guidelines for the appropriate range for damages: Wiebe v.
Juraschka, 2012 BCSC 974; Wiebe v. Neal, 2004 BCSC 984; and McKay
v. Powell, 2012 BCSC 1935.

[85]        
The defendant suggests that the appropriate amount for non-pecuniary
damages in this case is $50,000 to $65,000.

Decision

[86]        
As noted previously, I generally accept the evidence of the plaintiff. 
I believe that she told me the truth to the best of her ability with respect to
the difficulties she has experienced as a result of the MVA.  I also have
regard to the corroborative evidence of the other witnesses who gave evidence
on her behalf.

[87]        
I prefer the evidence of Dr. Shuckett to that of Dr. Wade with respect
to the likelihood of any improvement after two years has passed.  In this case,
more than six years has passed.

[88]        
While I acknowledge the importance of Dr. Wade’s view that patients
should be considered and treated as individuals, rather than as statistics,
that approach does not address the balance of probabilities standard by which I
must be guided.  I am satisfied, on a balance of probabilities, that the
plaintiff is unlikely to experience further significant improvement, and has
been unlikely to do so for several years.

[89]        
I accept as a fact that she suffered a temporary aggravation of injuries
as a result of the 2011 accident, and the amount of non-pecuniary damages which
she will be awarded will not include a component for that aggravation.

[90]        
I am satisfied that she was approximately 75 percent recovered by
sometime in 2007, and she remains at that level of recovery.

[91]        
I am satisfied that there are no pre-existing issues which have had an
effect on her injuries or the amount of non-pecuniary damages to which she is
entitled.  Neither her pre-existing kidney issues, nor her unusual posture,
have any bearing on this matter.  The defendant’s suggestion that they do is
based upon nothing more than speculation.

[92]        
Her visit to Dr. Beckman in 2000 was isolated and occurred long before
the MVA.  If it had any bearing on her post-MVA symptomology, it supports the
notion that she was a thin-skulled victim at the time of the MVA.  The
plaintiff’s symptoms in 2000 indicate an increase in the risk that the injuries
of the subject MVA would be severe and prolonged.

[93]        
I acknowledge the defendant’s argument  that the plaintiff failed to
follow various recommendations from various doctors.  However, I am satisfied
that her failure to do so has not caused her recovery to be impaired or
delayed.  To the contrary, she has acted reasonably in attempting to improve
her condition and when she has not taken a doctor’s advice, she has made a
reasonable decision in all the circumstances and based on the information that
was available to her at the time.

[94]        
Considering all of the foregoing, I award $70,000 for non-pecuniary
damages.

Past Wage Loss

The Plaintiff’s
Argument

[95]        
The plaintiff testified that, but for the MVA, she would now be working
a 30-hour week, all of it as billable self-employed work.  She testified that
she would consider this to be full-time work, as it would leave her enough time
for additional non-billable hours for office administration, promotion, and
continuing education.

[96]        
The plaintiff called an economist, Mr. Turnbull, as an expert witness. 
He provided and explained a report, which has been entered as an exhibit.

[97]        
In that report, Mr. Turnbull offers his expert opinion with respect to
past wage loss and future loss of earning capacity.

[98]        
He also gathers together useful data, and provides them in various
tables, with respect to, among other things, the plaintiff’s:

1.       T4
earnings (from “employment” income); and

2.       professional
income (from “self-employment”), net of expenses.

[99]        
“Employment” income refers to income earned from her jobs at various
agencies prior to the MVA.

[100]    
“Self-employment” income refers to income earned as the result of hourly
billings of clients in her private practice.

[101]    
From the foregoing information, together with information with respect
to the hourly rates of her employment income, and of her self-employment income
(both of which required some minor assumptions on the part of
Mr. Turnbull), he has formed and provided his opinion with respect to the
average weekly hours worked in each relevant year.

[102]    
The plaintiff argues that if she had been working full-time since the
MVA, she would have worked 30 hours per week.  She then argues that her past
wage loss should be calculated by determining the difference between the number
of hours which she has actually worked, and the 30 hours which she would have
worked, but for the accident, then multiplying those hours by the professional
billing rate which she charges to her private clients.

[103]    
Mr. Turnbull’s calculations suggest that the most hours she ever worked
were an average of 23 hours per week in the year of 2006, that is in the almost
12 months prior to the MVA.  As a result, Mr. Turnbull’s subsequent
calculations are not based on the assumption that the plaintiff would have
worked 30 hours per week; rather, they proceed on the assumption that the
maximum hours she would have worked would be 23 hours per week.

[104]    
From 2002 to 2012, his calculations indicate that she averaged the
following numbers of hours per week:

[105]    
In the above chart, from 2002 to 2006, the hours listed are a
combination of agency hours and private practice hours.  Since she did not
return to agency work after the MVA, the entirety of the hours (from 2007
onwards) are private practice hours.

[106]    
Mr. Turnbull then calculated the difference between the hours that the
plaintiff actually worked after the MVA, and the maximum number of hours she
had ever worked before the MVA, that is, 23.  For example, in 2007 (average 10
hours), she worked an average of 13 hours per week less than the maximum 23. 
In 2010 (average 17 hours), the year since the MVA when she put in the most
weekly hours, she worked an average of six hours less per week than the maximum
23.

[107]    
Using that method, he calculated the difference in hours for the years
2007 to 2012, and for the year 2013 until the first day of trial (January 28,
2013).  With the difference in hours calculated, he then determined the
plaintiff’s annual net loss (net of taxes) in two alternative ways:

1.       Assuming
she would have worked the missed hours at an agency, for the hourly rate given
in evidence (plus a minor assumption on Mr. Turnbull’s part), he determined
that the total loss from 2007 to 2013 is $43,061.

2.       Assuming
she would have worked entirely in her private practice, at the hourly
self-employment rate given in evidence (plus a minor assumption on Mr.
Turnbull’s part), the total loss from 2007 to 2013, net of taxes, is $176,863.

[108]    
The plaintiff argues that the past wage loss claim should be based upon
a maximum of 30 hours per week which she says she would have been working but
for the MVA.

[109]    
However, assuming the Court relies upon Mr. Turnbull’s assumption of a
maximum of 23 hours per week, then the plaintiff argues that the evidence
establishes that she would have worked those 23 hours as a self-employed
person, and not as a salaried employee of an agency.  On that basis, her wage
loss would be $176,863.

The Defendant’s Argument

[110]    
The defendant argues as follows:

1.       Any
wage loss she suffered ended in 2008.  In that year, and every year since, she
has earned more than she ever earned prior to the MVA.  Even in 2007, she
earned only $5,800 less than she had earned in the year of the MVA.

2.       Prior
to the MVA, it was not her intention to work full-time on a self-employed
basis.  Rather, it was her intention to return to doing agency work. 
Therefore, her wage loss should not be calculated on the basis of self-employed
billing rates.

[111]    
The law requires that the defendant put the plaintiff in the same
position, or as close as possible, as she would have been in but for the MVA.

[112]    
The Court should conclude that, but for the MVA, the plaintiff would
have continued to work part-time in an agency and part-time in private
practice.

[113]    
Given the likelihood that she would have continued to split her time
between agency and private practice had the MVA not occurred, it is reasonable
to assume that her earnings would have continued at the level they had been at
the time of the MVA. As a consequence of the MVA, the plaintiff has focused
solely on private practice and as a result, her earnings have increased.

[114]    
It follows that she has suffered no past wage loss other than the $5,800
reduction in income in 2007.  Only in that year did the plaintiff earn less
than she did prior to the MVA. This was a function of the loss of the agency
job and the time it took to build up her private clientele.

[115]    
In each of the years from 2002 to 2012, the plaintiff has earned the
following amounts (before expenses):

[116]    
With respect to the foregoing amounts earned, the figures for the years
2002 to 2006 are a combination of employment and self-employed income.  The
years 2007 to 2012 are exclusively self-employed income.  (The year 2007
includes $1,068 of employment income earned in 2006, but not paid until 2007).

[117]    
The defendant therefore argues that the entirety of the plaintiff’s wage
loss is the difference between what she earned in 2006 and 2007; that is,
$5,800.  In every subsequent year, there was no loss at all.

[118]    
In the alternative, if there was a wage loss, and if Mr. Turnbull’s
methodology is acceptable, the defendant argues:

1.       His
use of 23 hours as the maximum from which the number of lost hours should be
calculated is misleading.  This is because the plaintiff testified that she
devoted a number of hours per week to administrative matters for which she
received zero pay.  Mr. Turnbull does not take this into account.

2.       The
evidence indicates that the plaintiff would not have worked the entire number
of lost hours as a self-employed person.  Rather, her history indicates that
she would have worked most, and perhaps all, of them on salary at an agency.

[119]    
Therefore, the defendant suggests that:

1.       the
23-hour maximum should not be used as a basis for calculations; and,

2.       even
if the 23-hour maximum is used, Mr. Turnbull’s calculation resulting in a loss
of $176,863 should not be relied upon because it is based upon the notion that
the plaintiff would have worked full-time self-employment hours, with no agency
hours.

Decision

[120]    
I make the following findings of fact:

1.       Prior to the
MVA:

(a) Between one-quarter and one-half of
the total of the plaintiff’s hours worked were self-employed hours; the rest
were salaried agency hours.

(b) It was not the plaintiff’s intention
to subsequently work full-time in self-employment.

(c) It was not the plaintiff’s intention
to work 30 hours per week in the future.

(d) It was the plaintiff’s intention to
continue working part-time doing agency work, and part-time doing self-employed
billable work, in the same proportions as before the MVA, to a maximum total of
23 hours per week.

(e) It was the plaintiff’s intention to
change the nature of her private practice to include primarily DIR Floortime
consulting clients.

2.       Mr. Turnbull’s
method of calculating the average number of hours worked each week is the
preferred method, rather than relying upon the notes of Dr. Parnes with respect
to what the plaintiff told her, or upon the plaintiff’s evidence, or the
defendant’s arguments.

3.       I am satisfied
that the various assumptions, conditions and contingencies that Mr. Turnbull
had regard to in preparing his report and forming his opinions were appropriate
in the circumstances.

4.       Prior to the
MVA, the plaintiff was being paid approximately $24 an hour working for
agencies.  She was charging between $45 to $95 an hour in private practice. 
Since the MVA, she charges between $125 and $150 per hour in private practice. 
Mr. Turnbull has made minor assumptions increasing all of those figures to
represent likely increases consistent with inflation and general labour force
increases.  I am satisfied that those assumptions are appropriate and accurate
and within his expertise.

5.       I am satisfied
that the numbers of hours calculated by Mr. Turnbull in each of the years
were hours for which she received direct payment (either as an employee or on a
self-employed basis) and that unpaid administrative hours that the plaintiff
filled were in addition to the hours calculated by Mr. Turnbull.

[121]    
As a result of her injuries in the MVA, the plaintiff has been unable to
work to her intended maximum of 23 hours per week.

[122]    
The plaintiff’s choice to complete the courses for her DIR certificate
after the MVA was an unusual one.  This is because DIR Floortime work is far
more strenuous than ordinary family child therapy whether in private practice
or working for an agency.  It is also far more remunerative.

[123]    
The defendant is not entitled to benefit from the fact that the
plaintiff has consistently earned more income since the MVA than prior to it. 
The reason for this occurrence is because she trained to do much higher paying
work, and she has succeeded at it. If she had decided to do this, with no
indication of a prior intention to do so, after the MVA, I would come to a
different conclusion.  However, it is clear from the evidence that it was
always her intention to become a DIR Floortime consultant − she took the
introductory courses in 2004.  The fact that she has followed through with that
to her financial benefit is not something that the defendant can rely on to
deny that she has a wage loss.

[124]    
The loss arises from the fact that, if not for the accident, she would
have been able to work more hours at this higher paying work, and it was always
her intention to do so.  It was the inability to work those additional hours at
that higher paying rate which forms her past wage loss.

[125]    
On the basis of Mr. Turnbull’s opinions, if she had continued to work full-time
doing only agency work, her net income loss would be $43,061; on a full-time self-employment
only basis, it would have been $176,863.  The plaintiff’s actual loss is
somewhere between those two figures.

[126]    
Considering all of the foregoing, I am satisfied that the plaintiff’s
past wage loss to January 28, 2013, is $110,000 (net of taxes).

Loss of Earning Capacity

The Plaintiff’s Argument

[127]    
Mr. Turnbull provides opinions with respect to loss of earning capacity
which rely upon the same methodology as that used for past wage loss.  That is,
if the plaintiff’s intention had been to work a maximum of 23 hours, then the
difference between that figure and the number of hours which she physically
will be able to work will continue to be the basis for determining her lost
wages into the future, assuming a purely mathematical approach is employed.

[128]    
Using that methodology, Mr. Turnbull then provides tables using
multipliers, discount rates, adjustments and contingencies and arrives at the
following:

1.       Based
exclusively on work at agency rates until age 65, her loss would be $167,000.

2.       Based
exclusively on self-employment rates from the trial date to the age of 65, her
loss would be $755,000. 

[129]    
On the evidence, the plaintiff’s injuries will be permanent. Because of
the injuries, she has been denied the opportunity to take advantage of the
demand for her services. She could be and would be earning twice as much income
(working an average of 30 hours per week, rather than 15) but for the injuries
suffered in the MVA.

[130]    
The evidence that bears on what the future holds includes the following:

1.       Dr.
Shuckett’s opinion that the plaintiff’s condition six years after the MVA is unlikely to improve.

2.       The
plaintiff has been investigated by specialists.  She has complied with the
treatment advice she has received.  Nevertheless, after six years, she is not
better and appears to be worsening.  Perhaps there is a chance that she may
improve to the point that she could work full-time hours, but that chance is
limited, and therefore should be given limited weight. 

3.       At
best, Dr. Wade’s hope for the plaintiff’s future should be taken into account
according to its relative likelihood (which is low).  Dr. Wade testified that
his opinion emphasized the individual, rather than statistical
probabilities. 

[131]    
The plaintiff agrees that the Court is not to take a strict mathematical
approach.  The plaintiff suggests that the appropriate determination should be
approximately half-way between $755,000 (Mr. Turnbull’s calculation based on
23-hour week), and a significantly greater figure (also provided by Mr. Turnbull)
based upon a missed 30-hour work week.

The Defendant’s Argument

[132]    
The plaintiff suffered soft tissue injuries as a result of the MVA on
December 22, 2006. The injuries have been characterized by Dr. Shuckett and Dr.
Wade as mild to moderate. It is apparent she has, at various times since the
spring of 2007, reported her recovery to be 70%. It is accepted that she has
ongoing complaints six years post-MVA and that they may, in part, be
attributable to the MVA. However, the medical evidence does not adequately
support the apparent worsening of her symptoms being attributable to the
subject MVA.

[133]    
The plaintiff has failed to satisfy the onus upon her that there is a
real and substantial possibility that she will suffer a loss in the future:

1.       The
Court should exercise caution before accepting a plaintiff’s testimony, in the
absence of objective evidence, and without having proper regard to conflicting
medical evidence.

2.       If
Dr. Parnes has been unable to certify the plaintiff as being fit for work (as
testified to by the plaintiff), why is there no opinion from Dr. Parnes to this
effect?

3.       If
the plaintiff is functionally limited as a result of her injuries, why is there
no functional capacity evaluation in evidence?

4.       Instead
of the foregoing, the Court has only the plaintiff’s own assertions as to her
limitations as a result of the MVA and
into the future. 

5.       Her
hours have essentially returned to pre-MVA
level and she is making more money now than she would have had the MVA not occurred.

6.       One
must also consider that given her chronic kidney problems and possible
underlying structural problems causing periodic neck and arm symptoms, the
plaintiff was unlikely to work more in the future than she is now. 

[134]    
There is no medical opinion supporting the plaintiff’s contention that
she is limited now or in the future from working more hours in private
practice.  Dr. Shuckett provides no useful opinion in this regard.  She
only describes the plaintiff’s self-assessed limitations.

[135]    
The plaintiff may have been left with certain ongoing symptoms after the
MVA.  However, this does not necessarily equate to an impairment.  There is not
sufficient evidence to support a claim for a permanent impairment as a result
of the MVA.  The plaintiff appears to be working as much as she did prior to
the MVA and doing a more physical job. She is apparently doing it well as her
reputation and professional standing have flourished.

[136]    
If the MVA had not occurred, the plaintiff would likely have continued
to split her time between agency employment and private practice.  Since the MVA,
she has not reconsidered agency work as she has now realized how lucrative and
fulfilling private practice can be.  She has convinced herself that this has
always been her goal, despite evidence to the contrary.

[137]    
She could work more hours by doing less physically demanding work:

1.       The
defendant should not have to pay because the plaintiff chooses to do more
physically demanding work, when less physically demanding work is available to
her.

2.       The
plaintiff testified that it is because of her physically demanding work that
she has chosen to pursue that she has not been able to increase her hours. 
However, she agreed that a wide range of clients can benefit from DIR therapy
including those that are less physically demanding.  Yet she has chosen not to seek
out such a clientele.

3.       She
is also qualified to train others in DIR therapy.  She is an expert provider
and trainer.  She agreed that such an activity would be less physical.  Yet,
she has not pursued that as an alternative.

4.       The
plaintiff suggested that in order to do a different type of work she would have
to re-train.  However, the evidence suggests otherwise.

[138]    
The law is that if the plaintiff can earn as much doing something else,
she must do so in order to mitigate her damages: Parypa v. Wickware,
1999 BCCA 88 (para. 67).

[139]    
It follows that there should be no award for loss of earning capacity.

[140]    
In the alternative, if the Court accepts that because of the MVA the
plaintiff has suffered a loss of earning capacity and is less marketable as a
result of her injuries, the loss is not one that is appropriate for
mathematical calculation.  Rather, it should be seen to be a loss of a capital
asset and an award should be in the range of one year’s income: Brown v.
Golaiy, [1985] B.C.J. No. 31.

[141]    
An appropriate amount, based on the foregoing analysis, would be in the
range of $60,000.

Decision

[142]    
I rely upon the findings made earlier in this judgment under the heading
“Past Wage Loss”.

[143]    
I also find that:

1.       Prior to the
MVA, the plaintiff’s intention was to work into the future at a combination of
employment and self-employment hours in the same proportions as before the MVA
and to a maximum of 23 hours per week.

2        The plaintiff
would have had enough clients to fill the number of self-employed hours that
she intended to work.

3.       If the
plaintiff did re-train to do less physically demanding work, she would earn
significantly less than she is now earning.

4.       As a result of
the injuries suffered in the MVA, the plaintiff will continue to be unable in
the future to work to her intended maximum of 23 hours per week.

[144]    
The plaintiff advances the following principles of law:

1.       The
onus is on her to establish that there is a substantial possibility of an
actual loss in the future.  The award may be reduced or increased for “material
risk”.

2.       Future
events are given weight according to their relative likelihood.  For example,
if there is 30 percent chance that a plaintiff’s injuries will worsen, the
damage award may be increased by 30 percent to reflect this risk as long as it
is a real and substantial possibility and not mere speculation: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27.

3.       Hypothetical
events (such as how the plaintiff’s life would have proceeded without the
tortious injury) or future events need not be proven on a balance of
probabilities.  Instead, they are simply given weight according to their
likelihood: Moore v. Brown, 2010 BCCA 419.

[145]    
I have previously noted that I accept the opinion of Dr. Shuckett over
that of Dr. Wade with respect to the unlikelihood of the plaintiff’s condition
improving in the future.

[146]    
I am satisfied that the plaintiff has suffered a permanent impairment as
a result of the MVA and that there is a real and substantial possibility that
she will suffer an actual loss as a result of the MVA.

[147]    
I am also satisfied that the amount of that loss will be affected by a
number of contingent factors, including the following:

1.       There
is some possibility that the plaintiff’s condition will improve, although this
is not likely.  There is also some possibility that her condition will
deteriorate, although based on the evidence, this is also not likely.

2.       There
is some possibility, although it is unlikely, that the plaintiff’s condition
might improve if she pursues retraining and/or rehabilitation.  On the other
hand, there is also some possibility that, if the foregoing is pursued, she
will have to take time off work, will suffer a loss of income as a result, and
may never earn an amount as great as she is now earning.

[148]    
The evidence does not lead me to conclude that the plaintiff’s
pre-existing kidney and posture issues will cause her to suffer any wage loss
in the future.  Consequently, the evidence of those conditions plays no role in
this determination.

[149]    
I am satisfied that the correct approach is not a mathematical one.

[150]    
Rather, the appropriate approach is to consider that the plaintiff’s
loss of earning capacity arises from her being less marketable as a result of
her injuries.  That loss of earning capacity is a loss of a capital asset and
it is that loss that she is entitled to be compensated for.

[151]    
In all the circumstances and considering all of the foregoing, I am
satisfied that the plaintiff’s loss of a capital asset is properly valued at
$120,000 (net of taxes).  I award that amount for her loss of earning capacity.

Future Care Costs

The Plaintiff’s Argument

[152]    
The plaintiff claims the following based on her current annual costs for
treatment and medications:

1.       Physiotherapy:
The plaintiff spent $350 on physiotherapy in 2012.

2.       Thermacare
heat wraps:  The plaintiff spent $414.30 on these products in 2012, almost all
purchased in the United States.  In Canada she will spend at least double or
more. The plaintiff suggests $800.

3.       Muscle
relaxants:  The plaintiff spent $266.91 in 2012.

4.       Parking
for physiotherapy:  The plaintiff spent $21 in 2012.

5.       Miscellaneous: 
The plaintiff purchased replacement pads for a TENS machine (cost $50.87 but
not recurring); topical ointment at $13.43, estimated at four purchases per
year. The plaintiff reduces this estimate to $50 per year.

[153]    
The foregoing totals $1,487.91.  Mr. Turnbull provides a multiplier
taking into account contingencies, adjustments and the discount rate resulting
in a future loss of $31,320.50.

[154]    
In addition, if the Court concludes that Dr. Wade’s suggestion of
continuing physiotherapy is appropriate, the calculations should be based upon
the payments she has made for physiotherapy to date.

The Defendant’s Argument

[155]    
The test for assessing future cares costs is whether the costs have a
medical justification and are reasonable. Reasonableness should be taken to
mean moderate and fair to both parties: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.) at para.199, aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

[156]    
The only opinion regarding future care was provided by Dr. Wade during
his oral testimony. Dr. Wade’s recommendation for future care consisted solely
of physiotherapy treatment for six to 12 months. Three months at two visits per
week and weekly visits for six to nine months is reasonable in light of Dr.
Wade’s opinion.   At a rate of $50 per session, which is the rate charged to
the plaintiff by Richmond Physiotherapy in 2012, this amounts to a range of
$2,400 to $3,600.

[157]    
Dr. Shuckett recommended aerobic exercise and a trial of Flexeril. Given
the plaintiff’s evidence that Dr. Weiss advised her against using Flexeril
because of her kidney condition, there are no costs associated with Dr.
Shuckett’s recommendations.

[158]    
There are no opinions on file to support the continued use of
over-the-counter or prescription medications, nor is there support for ongoing
use of a TENS machine.

[159]    
The plaintiff has failed to prove that her anticipated expenses, other
than the physiotherapy treatment recommended by Dr. Wade, are medically
justified or reasonable.

Decision

[160]    
I am satisfied after a consideration of all the foregoing, that the
evidence leads to a reasonable inference that there will be future care costs
which arise directly from the injuries caused by the MVA.

[161]    
The evidence leads me to the conclusion that the appropriate award for
future care costs is $7,500, and I do award that amount.

Impaired Housekeeping Capacity

The Plaintiff’s Argument

[162]    
The plaintiff’s claim is modest but the Court should consider that she may
move to a larger home one day and then will be more affected by her impairment.
She completes most tasks but needs help with heavier items. She no longer
takes out the garbage or shovels snow. She gets help to carry heavy grocery
items or copy paper for her office.

[163]    
The plaintiff’s evidence in this regard was supported by that of her
father and several of her friends.

[164]    
The tasks take her longer than they used to. Many tasks like vacuuming
are things she now does less frequently.

[165]    
The plaintiff suggests an award in the amount of $20,000.

The Defendant’s Argument

[166]    
In Travis v. Kwon, 2009 BCSC 63, the court stated at para. 114
that:

While the defendants cannot expect a family member to take on
an unreasonable burden created by injuries to another member of the family it
is not reasonable to expect defendants to pay to have someone perform services
that can and should reasonably be taken on by members of the family.

The court also stated at para. 128, "In
my view, the claims advanced for housekeeping in this case are better dealt
with under non-pecuniary damages and an allowance will be made there.”

[167]    
The defendant submits that any tasks performed by the plaintiff’s father,
other relatives, and friends are of the sort that would reasonably be expected
to be undertaken by members of her family. The defendant further submits that
there is no medical justification for loss of housekeeping in this case.  Alternatively,
if the court finds such a loss exists, recognition of that may be considered in
the award for non-pecuniary damages.

[168]    
Neither doctor commented upon the plaintiff’s capabilities with respect
to housekeeping.

Decision

[169]    
I am satisfied that an award under this category of damages is
appropriate, and I award the amount of $7,500.

SPECIAL DAMAGES

[170]    
The plaintiff’s claim for special damages totals $8,074.73.

[171]    
The defendant does not dispute that the costs as noted were incurred,
however, submits that the extent to which the plaintiff used the heat wraps was
unnecessary. The plaintiff’s evidence was that "heat" helps with her
symptoms.  The defendant submits that while it was not unreasonable for the plaintiff
to try the Thermacare heat wraps, the duration and frequency of their use was
not medically recommended.  Therefore, the $2,204.34 claimed for the heat wraps
should be reduced by half.

[172]    
The defendant further submits that the bulk of the plaintiff’s special
damages, namely the physiotherapy treatment and the heat wraps, resulted from
self-directed and not medically-directed care. For example, the plaintiff
"cycled" through physiotherapy treatment at her own discretion.

[173]    
After consideration of all of the foregoing, I am satisfied that the
correct amount of special damages for which the plaintiff is entitled to be
compensated is $6,500.

SUMMARY

[174]    
The damages awarded are as follows:

“Silverman J.”

________________________________

The
Honourable Mr. Justice Silverman