IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130424

Docket: M128679

Registry:
New Westminster

Between:

Lenore Marie
Prince

Plaintiff

And

Dillon D. Quinn,
Mohamed Ahmed Abrre aka Mohamed A. Abrre,

John Doe, Richard
Roe, XYZ Corporation and

Insurance
Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
The plaintiff, Lenore Marie Prince, claims damages for personal injuries
resulting from a motor vehicle accident. Liability for the collision is
admitted by the defendants. The extent of the injuries and their effect upon
the plaintiff, and thus the quantum of damages, are the subject of dispute.

The Circumstances

[2]            
At the time of the collision, the plaintiff was 39 years of age. She was
living in the community of Gibsons on the Sunshine Coast and at the time,
although not employed at a specific job, was interested in pursuing certain
business ventures. As well, she was an active mother in a household that
included her husband and a blended family of six children.

[3]            
The accident occurred in Vancouver at around midday on March 18, 2009. Ms. Prince
was alone in her Dodge minivan vehicle; she was travelling eastbound on
Hastings Street. She was wearing her seatbelt and had her headrest adjusted
appropriately.

[4]            
As she passed the intersection at Hawks Avenue, the defendant, Mr. Quinn
was making a right turn onto Hastings. Evidently, he swung his vehicle wide and
struck the front passenger side of the plaintiff’s automobile. That caused the
plaintiff’s van to veer into the oncoming lane, with the result that she had a
second collision with a vehicle that was proceeding westbound on Hastings. The
identification of that driver is not known. Apparently he stopped briefly and
then left the scene.

[5]            
Ms. Prince got out of her vehicle. She was obviously somewhat
shocked and upset by the accident. She did not indicate any injury at that time
and there is nothing to suggest that she lost consciousness at any time in the
event.

[6]            
Neither the police nor the ambulance were called to attend at the scene.
A tow truck arrived and her vehicle was removed.

[7]            
There are photos in evidence which depict damage to the right front
(from the first collision) and also to the left front corner of Ms. Prince’s
vehicle. As well, there is a scrape down the left side. That presumably was
from the second part of the accident. In terms of the extent of the damage, the
evidence is that the estimated cost to repair the vehicle was in the order of
$3,500. In fact, because that exceeded the value of the vehicle, it was
declared a total loss and the plaintiff was paid its value.

[8]            
 A short while after the accident, Ms. Prince began to experience
discomfort, notably a headache and pain in her neck and upper-back area.

[9]            
Later that day, the plaintiff went to see a doctor at a nearby clinic, Dr. Polay.
She reports that she was prescribed medication, she believes Naproxen. She says
that she did not sleep well that night. She subsequently attended on doctors at
a clinic in her home community of Gibsons on what appears to be two occasions
or thereabouts; she describes having seen the doctor “a couple of times”.

[10]        
One of the doctors recommended that she attend upon a physiotherapist
for treatment. She says she did so on a couple of occasions and also tried
massage therapy but did not care for it.

[11]        
Her evidence is that for some time after the accident, she experienced
the discomfort to her neck and upper-back and the headaches on a fairly
constant basis. There was little or no improvement for that first while.

[12]        
The extent and severity of the pain and discomfort is somewhat unclear
in the evidence and I will delve into that later in these reasons. The essence
as I understand is that the pain and discomfort did in fact plateau after a
period of time but that the plaintiff continues to have what she describes as
“flare-ups”.

[13]        
She testified that the flare-ups involve stiffness in the upper back and
neck and pain in that region. Her ability to move her head is lessened during
those times and she finds herself unable to drive or raise her arms over her
head. As well, she says that she sometimes feels a “flu-ish” sensation in
conjunction with those symptoms. With respect to the frequency of those, she
testified that the flare-ups occur every four to six weeks, and that they last
anywhere from two to seven days. She said one was longer, approximately one month
in duration.

[14]        
In order to deal with her condition, the plaintiff testified that she
has been to yoga and that she continues to do exercises. As well, she applies
heat and ice to the affected area and she uses Advil regularly and in some
abundance.

[15]        
The plaintiff says that the injuries have had significant effect upon
many aspects of her life. She describes a feeling of being less able to be
active and handle stress; she says that her ability to see her friends and
socialize is diminished and that she finds managing her household
responsibilities to be difficult. She also says that the consequences of the
accident have rendered her less able and less confident to perform the tasks
she wants to perform, such as business ventures in which she is interested. She
describes that her mood is different now; she is sometimes grumpy, sad and
angry. She says that her sleep patterns are disturbed and that she experiences
nightmares. She says that she is a nervous driver and that activities such as
being at a computer or at a sewing machine cause her discomfort.

Claims for Damages

[16]        
In this action, the plaintiff seeks an award of damages under six
separate headings:

a. Non-Pecuniary Damages;

b. Loss of Homemaking
Capacity;

c. Past Loss of Earning
Opportunities;

d. Diminishment of Future
Earning Capacity;

e. Future Cost of Care; and

f. Special Damages.

[17]        
The position of the defendants is that this is a situation where any
accident-related injury which the plaintiff sustained substantially, if not
completely, resolved within two or three months of the accident, and
accordingly, it is appropriate that there would be an award for non-pecuniary
damages, but relatively modest in quantum. The defendants say that none
of the other heads of claim have been made out, with the exception of special damages.
It is conceded that there is some fairly minimal entitlement under that head.

Discussion

Observations

[18]        
By way of overview, it is to be noted that the plaintiff relies upon her
own testimony, plus that of her common-law spouse and a close friend, plus the
evidence of one medical expert, a physiatrist who examined her some
considerable time after the event. No treating doctors have been called nor are
there any clinical records in evidence. As best I can discern, attendances upon
physical therapy specialists were very limited and there are no reports or
records relating to any such treatment.

[19]        
In the result, in this matter, the usual sort of evidentiary record that
one often sees in such cases, pertaining to the nature and treatment of the
physical injury, is scant.

[20]        
Almost as a matter of course in cases of this type, the court is
referred to an excerpt from the judgment of McEachern C.J.S.C. (as he then was)
in Price v. Kostryba, [1982] B.C.J. No. 1518. That was a case where
his Lordship found that there was little or no objective evidence of continuing
injury and there were inconsistencies in the testimony of the plaintiff.

[21]        
McEachern C.J.S.C. made reference to an earlier decision, Butler v.
Blaylock, [1981]
B.C.J. No. 31, where he stated as follows:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to
be fully and properly compensated for any injury or disability caused by a
wrongdoer. But no one can expect his fellow citizen or citizens to compensate
him in the absence of convincing evidence – which could be just his own
evidence if the surrounding circumstances are consistent – that his complaints
of pain are true reflections of a continuing injury.

[22]        
It is to be noted that, subsequent to the trial decision in Price v.
Kostryba, the trial judgment in Butler v. Blaylock, to which
reference had been made, was successfully appealed ([1983] B.C.J. No. 1490);
the non-pecuniary award was increased from $7,500 to $15,000. In its per
curiam judgment, the court said this at para. 13:

… the plaintiff testified that
he continued to suffer pain. His wife corroborated this evidence. The learned
trial judge accepted this evidence but held that there was no objective
evidence of continuing injury. It is not the law that if a plaintiff cannot show
objective evidence of continuing injury that he cannot recover. If the pain
suffered by the plaintiff is real and continuing and resulted from the injuries
suffered in the accident, the plaintiff is entitled to recover damages. …

[23]        
In a related vein, almost without exception, the cross-examination of
plaintiff’s medical experts focuses on the very significant difference between
subjective and objective indicators. The tenor of such cross-examinations
generally suggests that where meaningful findings are principally based upon
subjective evidence – the self-reports of the plaintiff – the evidence should
be afforded much diminished weight.

[24]        
These propositions are understood.

[25]        
With respect, as regards this latter point, it seems to me that this is
an approach that must be considered with care. Taken to its ultimate
conclusion, it would, in many cases, quite unfairly put a plaintiff in a
position where proving a claim would be exceedingly difficult and verging on
impossible.

[26]        
In my view, the point to be observed is this: where a plaintiff’s claim
is founded quite substantially on self-reported evidence, it is necessary for
the trier of fact to scrutinize the plaintiff’s evidence carefully and evaluate
it in the light of other evidence, such as the circumstances of the collision,
other relevant information concerning the plaintiff’s activities and statements
made by the plaintiff on other occasions. However, where the evidence of
physical injury is substantially based on subjective evidence – the testimony
of the plaintiff – that should not constitute an effective barrier to proof of
a claim.

[27]        
In the final analysis, it is the court’s duty to examine the evidence
carefully and critically. That is what I have done in this case.

[28]        
In reaching my conclusion as to what the extent and effect of the
injuries to Ms. Prince were, I have taken into account her testimony, as
well as the testimony of her two witnesses. I have also taken into account the
evidence of her expert, Dr. le Nobel.

The Medical Evidence

[29]        
Dr. le Nobel is a medical doctor with a specialty in physical
medicine and rehabilitation. As noted, he examined the plaintiff on one
occasion, two years and seven months after the accident, and from that prepared
a report which is in evidence. He was not at any time engaged in her treatment.

[30]        
To summarize his findings and opinion, he made a diagnosis which
consisted of the following principle observations:

A.    He concludes
that her condition is chronic, meaning it is a condition which persists for
longer than tissue healing is felt to require.

B.    He concludes
that the plaintiff has myofascial pain, which is defined to be pain generated
in injured musculoligamentous soft and connected tissue structures, deep
beneath the body’s surface.

C.    Mechanical
spinal pain.

D.    Low back pain.

E.    Neck and
shoulder girdle pain with headache.

F.    Abnormal
parathesia sensations in her right thumb, index and long finger.

[31]        
He offered certain recommendations, namely that there should be further
investigation with respect to her spine, that she should try carpal tunnel
wrist splinting for a period of time, and that she should undertake additional
exercise rehabilitation under the direction of a kinesiologist or exercise-oriented
physiotherapist, several times monthly, with liberal access to a facility. As
well, he recommends referral to a psychiatrist in order to assess the issues of
sleep quality and mood.

[32]        
Dr. le Nobel also provides a general prognosis, which he describes
as “guarded”. Based upon the fact that she continues to have the symptoms he
has described, he opines that her symptoms and limitations will continue for
the future, most likely for the next several years and possibly longer,
depending on her response to treatment.

[33]        
In my view, the utility of Dr. le Nobel’s report is somewhat
limited. It is based entirely on a single examination, and was substantially
reliant on the plaintiff’s self-report. Some of the elements of his diagnosis
seem unhelpfully broad.

[34]        
I note as well, that certain of his findings, namely the low back pain
and the parathesia in her right hand, are not conditions that the plaintiff has
ever said resulted from her accident. In the result, I do not see how those
findings are material to the issue at bar. Accordingly, his recommendations
with respect to the wrist issue are similarly irrelevant.

[35]        
In the final analysis, as I understand the matter, the most relevant
recommendation he makes is with respect to exercise.

[36]        
Finally, in regards to his prognosis, its effect is substantially
informed by the extent to which I conclude the symptoms and limitations which
the plaintiff described, and which Dr. le Nobel accepted at face value,
are in fact present and attributable to the accident.

The Testimony of the Plaintiff

[37]        
Ms. Prince impresses as a person of decency and sincerity. She has
had her adversities in life, but has persevered. She is a bright woman who has
many interests and pursuits. I do not believe that she is an untruthful person.

[38]        
That said, there are in fact discrepancies between her testimony at
trial and statements made on prior occasions, and those cannot be ignored.
Although I find she is an essentially honest person, her recounting of events
and description of circumstances shows itself to be, from time to time,
disconcertingly unreliable.

[39]        
In reaching my conclusions, I have carefully examined her testimony at
trial, as well as statements she made on prior occasions, that is, in the course
of examination for discovery and in her interview with Dr. le Nobel.

[40]        
There were discrepancies of consequence between some of her statements
in evidence and things said elsewhere. To her credit, when met with
differences, she appeared to do her best to answer the matter honestly, even
when that resulted in positions that were not beneficial to her claim.

[41]        
Because of the discrepancies which have been shown, the matter of making
the necessary determinations that this case requires has not been entirely
straightforward. Those are troubling. I will provide three examples of such
inconsistencies.

[42]        
The first is with respect to the matter of the plaintiff’s complaint of
headache. At trial, her testimony was to the effect that those headaches and
the associated neck and upper back discomfort occurred frequently and that the
condition continues to affect her in a serious way. Relatedly, she described
using what I think could fairly be described as copious quantities of Tylenol.
However, in cross-examination, it was put to her that she had told Dr. le
Nobel at the time of his examination that she had headaches at the base of her
skull two or three times per year, in conjunction with pain in her neck and
upper back. When confronted with that, she agreed that she had told him that
and that it was true. The matter was clarified, namely that for the balance of
2009, after the motor vehicle accident, there were two or three flare-up
related headaches. I take from the evidence as well that since calendar year
2009, the incidence of such events have been experienced at that rate, and thus
have been notably less frequent than was initially suggested.

[43]        
A second example is the plaintiff’s testimony in chief that, for two
years after the motor vehicle accident, she didn’t hike with her dogs. The
evidence was that the family had two large dogs and they needed to be walked
daily. In cross-examination, the plaintiff agreed that she had said at the
examination for discovery that, other than for the first few weeks after the
motor vehicle accident, she did take the dogs on runs on nearby trails for
durations of 45 minutes to an hour. She accepted that the statement was true.

[44]        
Finally, the trial testimony of the plaintiff and her husband was to the
effect that the injuries of the motor vehicle accident have rendered her
substantially unable to perform household chores such as housecleaning and
gardening. However, in cross-examination, she said that she does most of the
housework. As well, she told Dr. le Nobel that she keeps busy with
gardening work and household tasks. She accepted that she had made those
statements and conceded that they were true.

[45]        
Dealing with the issue of reliability of the plaintiff’s evidence, and
more particularly where there are inconsistencies, counsel has referred me to
two trial decisions of this Court: Eblaghie v. Lee, 2010 BCSC 703, and Grewal-Cheema
v. Tassone, 2010 BCSC 1182. Both are decisions of Stewart J. and both speak
to the issue of credibility and, more specifically, where there are
inconsistencies between things said by a witness on different occasions. In Eblaghie,
it appears there were alleged to be differences between testimony at trial and
statements made at an examination for discovery.

[46]        
As I understand the submission of plaintiff’s counsel, relying on those
cases, he says that where there are such discrepancies, the court must be
cautious about allowing the inconsistencies to be applied too broadly as a
basis to discredit testimony of a witness.

[47]        
To my mind, the comments of Stewart J. reduce to two fairly concise
points:

(a)      Where
inconsistencies are alleged, fairness requires that the witness be squarely
confronted with the discrepancy and provided an opportunity to explain it.
Subtlety, or letting the issue simply lie, and then raising it later, in
argument, is generally not acceptable. Confrontation is critical.

(b)      The
materiality of the substance of the discrepancy is important. Where it concerns
a relatively minor or tangential matter, its relevance to the issue of the
witness’s credibility may well be quite insignificant. On the other hand, if
there is an inconsistency relating to an important matter, it warrants careful
attention.

[48]        
Each of these propositions is sound and significant.

[49]        
Applying them here, I proceed on the basis that where a party asks the
court to attach significance to inconsistencies in a witness’s evidence, the
discrepancy must be of real importance to the issues at bar and the witness
must be presented with a clear statement of the inconsistency and allowed an
opportunity to explain the difference.

[50]        
Applying the concept to the instant matter, I am of the view that the
inconsistencies which I have described are quite meaningful. I reach that
conclusion because the subjects which they concern are pointedly relevant to
the merits of the plaintiff’s case: the extent and degree of the pain she
experienced and the extent to which the injuries meaningfully interfered with
her everyday activities. I also attach significance because the contradictions
were brought to her attention in the course of cross-examination. She had an
opportunity to explain the discrepancies. No explanation was forthcoming. In
each case, she adopted as true what she had said on the prior occasion.

[51]        
In the result, notwithstanding my conclusion that Ms. Prince is a
sincere witness and that she has not deliberately sought to be untruthful in
her evidence, there are problems that arise from simply accepting at face value
her testimony in chief as to the extent and effect of the injuries she has
sustained.

[52]        
All that said, I do not disbelieve the plaintiff’s evidence when she
says that the accident caused her to feel frazzled and frustrated, less able to
accomplish the things she does in life, and periodic episodes of sadness.

[53]        
The plaintiff is an unusually active and busy person. She and her
husband both have families from prior relationships. In 2008, they merged their
families and moved from the lower mainland to a fairly spacious home in
Gibsons, BC. On the basis of her testimony, it is apparent that the move and
the subsequent matter of having this new family dynamic work was a challenging
one. She put enormous energy into making that a success, notwithstanding the
difficulties. Outside of the home, she was pursuing a number of interests. She
is active in a First Nations arts festival which is held annually. She was also
attempting to organize and start a new business. At the same time, her husband
was in the process of starting up a new business on the Sunshine Coast, and the
plaintiff was attempting to help him by “networking” in the community, as well
as providing administrative and other services for that business. Of course,
any activities she pursued which took place in the greater Vancouver area
necessitated commuting from the Sunshine Coast, an element which undoubtedly
made life more challenging.

[54]        
Taken altogether, it seems to me the plaintiff had taken on a host of responsibilities
that would have challenged anyone. It is not difficult to understand that she
felt frustrated and frazzled in her efforts to make all of that happen. I
conclude that the injuries from the motor vehicle accident contributed to her
feeling of being frazzled and overwhelmed, but they were not wholly responsible
for the problems she experienced.

Conclusion as to the Plaintiff’s Injuries

[55]        
In the final analysis, it is my conclusion that the plaintiff suffered
soft tissue injuries in the accident and that those resulted in her
experiencing pain in her upper back and neck area and related headache. The
pain was constant or substantial for an initial period; I find that to have been
no more than three months. After that, she has experienced intermittent
episodes of discomfort, namely the headache and the upper back and neck pain. I
would characterize the first phase as acute; the second, subsequent phase I
would describe as occasional and of much less intensity.

[56]        
During the acute phase, I am satisfied that her discomfort was of some
moderate severity. I accept that condition made managing her home tasks and her
activities outside the home difficult and challenging.

[57]        
I also conclude that in the subsequent phase, that is, some two or three
months after the event and following, there were times when the injuries caused
discomfort and caused other aspects of her life to be problematic, resulting in
feelings of discomfort, frustration and being unable to fully manage. I find those
were infrequent.

[58]        
I accept that those episodes have not fully resolved and that they do
occur from time to time. There is no assurance that they will resolve, although
I would expect that, given the conclusion of the litigation and the plaintiff’s
evidence that the pursuit of physical exercise is a useful therapy, the
problems will diminish.

[59]        
I turn now to the specific heads of damage claimed.

Non-Pecuniary Damages

[60]        
The plaintiff is entitled to fair and reasonable compensation for pain,
suffering, loss of enjoyment of life and the loss of amenities occasioned by
the injury inflicted by the defendants. The amount of compensation should be
fair and reasonable to both the plaintiff and the defendants.

[61]        
The accepted manner of assessing the appropriate quantum of
non-pecuniary damages is primarily by comparing the circumstances against other
cases and the awards made in those cases. It is well accepted that such an
approach, although it can be helpful, is but a rough guide. The appropriate
award for each case will depend upon the particular facts of that case.

[62]        
In the present matter, I take into account the pain and suffering which
I find Ms. Prince suffered. That has been particularly described at paragraphs
55 to 58. I also take into account that her pursuit and enjoyment of
ordinary everyday activities was impaired. That includes her ability to look
after her home, interact with her family and enjoy the many pursuits in which
she is interested. In this case, it also takes into account that there remains
some residual discomfort which is ongoing.

[63]        
In her submissions, the plaintiff also seeks to be compensated for the
loss of her homemaking capacity. The evidence is that others in her family were
to some extent required to contribute because she was less able.

[64]        
I decline to make a specific award under that head. Rather, I have
elected to take that aspect of her claim into account in determining an
appropriate non-pecuniary award.

[65]        
The plaintiff relies upon a series of cases, five in all. In those
cases, awards, adjusted to current value, ranged between approximately $60,000
and approximately $80,000.

[66]        
As noted, the defendants take the position that the injuries sustained
by Ms. Prince were essentially resolved within two or three months and
that the impact the injuries have had upon her life is really not especially
significant. Counsel has made reference to two decisions of this Court: Dolha
v. Heft, 2011 BCSC 738 and Liao v. Doe and ICBC, 2005 BCSC 431.
Both are summary trial decisions. In each case, non-pecuniary damages were
assessed at $10,000.

[67]        
In my view, the authorities which are relied upon by the plaintiff are
not comparable to the injuries and effects which I have found for Ms. Prince,
and the damages in those cases exceed what is appropriate in the matter at bar.
At the same time, I am not satisfied that the quantum of damages urged by the
defendants represents a fair and proper award.

[68]        
In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick J.A. set out the
factors to consider in a non-pecuniary damage award:

[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).

[69]        
I have examined other authorities and find the following to be most
relevant to this matter, considering the aforementioned factors: Hunt v.
Ugre, 2012 BCSC 1704; Cummings v. Shanks, 2012 BCSC 1731; and Djukic
v. Hahn, 2006 BCSC 154. In each of those cases the plaintiffs were awarded
$40,000 in non-pecuniary damages.

[70]        
In Hunt, there was an award of $40,000 where Mr. Hunt
sustained moderate soft issue injuries and continued to experience occasional
episodic flare-ups. In Cummings, the plaintiff endured painful injuries
but generally had a good recovery. His time with his children and doing yard
and landscaping work was frustrated by his injuries. He was awarded $40,000 in
light of the ongoing challenges he has experienced. In Djukic, the
plaintiff was awarded $40,000 in non-pecuniary damages. He was a 45-year-old
man who suffered soft tissue injuries to his neck, back and shoulder accompanied
by anxiety and depression.

[71]        
In all the circumstances, it is my view that an appropriate award for
non-pecuniary damages in this case is $40,000, and I so order.

Past Loss of Earning Opportunities

[72]        
In Rowe v. Bobell Express Ltd., 2005 BCCA 141, Smith J.A.
provided this explanation:

[30]      Thus, in my view, a
claim for what is often described as “past loss of income” is actually a claim
for loss of earning capacity; that is, a claim for the loss of the value of the
work that the injured plaintiff would have performed but was unable to perform
because of the injury.

[73]        
The plaintiff says that in this case, she has missed out on opportunities
to earn income and has suffered a diminishment of her capacity to earn income.
She says that the evidence establishes that she suffered a past wage loss since
the accident, and that she is entitled to an award for past income loss.

[74]        
This is not a case where the plaintiff was employed at a specific job
with a specific salary, and was prevented from earning that salary because of
her injury. In fact, she had no regular job at the time of the accident.
She had previously been employed at a store in Vancouver. At the time of the
accident, she was pursuing the possibility of certain entrepreneurial ventures.
These included the possibility of being part of an aboriginal crafts sale table
at the 2010 Olympics. She was also interested in buying and then re-selling
used vintage clothing. She testified that she was a skilled seamstress and that
skill formed part of her plan to market clothing. As well, there was evidence
that she wanted and intended to support her husband’s newly commenced concrete
pumping business on the Sunshine Coast. She proposed to do that by providing
networking services with the community and particularly the First Nations
community. She also hoped to provide administrative and other clerical support
for the business.

[75]        
As for the plan to have a concession at an Olympic venue, it is evident
to me that while she may have wished to do so, the necessary arrangements would
have required some considerable lead time. By the time of the accident, those
arrangements would have had to have been substantially in place. They were not,
and I am left to conclude that that was not a venture which would have come to
fruition.

[76]        
The matter of buying and selling the used clothing and having a store
was a general aspiration. Ultimately, in very late 2011 the plaintiff did put
such a plan into action. That consisted of working with other persons to set up
a store in Vancouver. The plaintiff testified that she had committed to take
25% of the available space in the store facility. Her evidence was that the overhead
for that was in the order of $500 per month or more. She also testified that
the income from that venture in the first two months of operation had been
something in the order of $1,000, with the result that it was a venture which
was not making any profit.

[77]        
That is not to say that her business will not be successful, but on the
evidence before this Court, there is unfortunately no basis to find that a loss
has been the consequence of the accident.

[78]        
Finally, there is the matter of her husband’s business. There was no
hard evidence of the business’s activities, its productivity or its ability to
generate a profit. The best that I could understand was that the plaintiff
hoped to gain some inroads into the community on the Sunshine Coast on the
basis of her First Nations status, but to date of trial, that had not proven to
be an approach that yielded any tangible success.

[79]        
As I indicated, the actual extent of the concrete pumping business was
not made known. The plaintiff’s husband did indicate that, because of the
plaintiff’s ongoing injuries and the burden that placed upon him to contribute
to the operation of the household, he believed that he was less able to be
available for the business. He offered some rough estimate that this was
possibly causing him to lose one job per week.

[80]        
With great respect, I find that I am unable to conclude that the
plaintiff has shown that, because of the injury, she has sustained a specific loss
representing the value of work that she would have performed but was unable to
perform because of the injury. None of these plans provides a sufficiently
clear and tangible situation from which a discernible loss can be concluded on
a balance of probabilities.

[81]        
However, in spite of that, I am satisfied in a more general sense that
the injuries and their effect have had a real impact upon her ability to
perform work, and that there is a real and substantial possibility that she
would have earned income but for the accident. Because there is no basis upon
which to make a calculation with any precision, it is a matter of making my
best assessment, taking into account the various relevant contingencies. In all
the circumstances, I find the plaintiff is entitled to recover $5,000 on
account of lost earning opportunities to date of trial.

[82]        
Ordinarily, that would be treated as a gross loss and subject to
adjustment through the application of the marginal income tax rates for the
period in question, in accordance with s. 98 of the Insurance (Vehicle)
Act, R.S.B.C. 1996, c. 231. In this case, given the relatively modest
quantum of the award and the fact that there is no evidence before me that
would indicate this would have attracted tax, it should be considered as a net
loss and the plaintiff is entitled to recover the entire sum.

Diminishment of Future Earning Capacity

[83]        
The plaintiff seeks restitution for the diminishment of her future
earning capacity by virtue of the injuries she sustained and the continuing
disabilities which she experiences. The plaintiff says that because of her
injuries, she has been forced to end her involvement in some of the ventures
and opportunities which she had prior to the accident, and that she is unable
to participate as fully in some of them.

[84]        
This particular head of claim has been the subject of some judicial
consternation which is reflected in a number of authorities dealing with the
matter.

[85]        
I find the following excerpt from the decision of Fitzpatrick J. in Milburn
v. Ernst, 2012 BCSC 93, to be a useful statement:

[132]    There are two possible approaches to assessment of
loss of future earning capacity: the “earnings approach” from Steenblok v.
Funk, 46 B.C.L.R. (2d) 133, [1990] 5 W.W.R. 365 (C.A.) and the
“capital asset approach” in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353
(S.C.). Both approaches are correct and will be more or less appropriate
depending on whether the loss in question can be quantified in a measureable
way: Perren v. Lalari, 2010 BCCA 140, 317 D.L.R. (4th) 729.

[133]    The earnings approach involves a form of
math-oriented methodology such as (i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value; or (ii)
awarding the plaintiff’s entire annual income for a year or two: Steenblok;
Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.

[134]    The capital asset
approach involves considering factors such as (i) whether the plaintiff
has been rendered less capable overall of earning income from all types of
employment; (ii) is less marketable or attractive as a potential employee;
(iii) has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and (iv) is less valuable to herself as a
person capable of earning income in a competitive labour market: Brown
at para. 8; Gilbert at para. 233.

[86]        
The plaintiff has provided submissions that attempt to frame her loss in
terms of quantifying a decrease in the plaintiff’s working hours, subsequent to
the collision, and then valuing that decrease in terms of an hourly rate and,
finally, establishing a present discounted value for that loss. She also
submits that quantification can be assisted by assuming that the concrete
pumping business could have earned an extra $500 or $1,000 per month but for
the collision.

[87]        
Those submissions are essentially the math-oriented methodology referred
to in Milburn.

[88]        
I have difficulty accepting that they represent a realistic approach to
the matter.

[89]        
I consider the better approach to be the so-called capital asset
approach. In this case, I proceed from my acceptance that Ms. Prince
currently has some residual effect from the injuries she sustained. I am not
able to say when or if those injuries will fully resolve. Accepting that they
are part of her new reality, I conclude that the answer to each of the
questions posed by the capital asset analysis is in the affirmative. That is, I
find that she has been rendered less capable overall of earning income from all
types of employment; she is less marketable or attractive as a potential
employee; she has lost the ability to take advantage of all job opportunities
that may otherwise have been open; and she is less valuable to herself as a
person capable of earning income in a competitive labour market.

[90]        
That having been established, the issue then becomes a matter of
assessing what value is to be placed upon that.

[91]        
In my view, an appropriate award under this head is in the amount of $25,000.

Future Care

[92]        
The plaintiff seeks an award of damages to compensate her for the costs
that will be incurred in managing the pain and discomfort which she says continue
to plague her.

[93]        
In order to determine an appropriate award under this head, it is necessary
to decide what is reasonably required for Ms. Prince and what expenses she
will likely incur. In this case, my approach is informed by my conclusion that
the discomfort she continues to experience from her injuries is relatively
infrequent and transitory.

[94]        
My view is also very substantially informed by what I took as the clear
tenor of the evidence, namely that a diligent program of physical fitness is
the most valuable treatment which she will experience.

[95]        
In her submissions, the plaintiff seeks a whole host of components
including gym membership, pool membership, yoga, kinesiology, physiotherapy,
together with heating pads, pillows and over-the-counter medication.

[96]        
In my view, the claim as it has been advanced in the course of
submissions is not tenable.

[97]        
It is my conclusion that a modest award should be made. I would expect
that the plaintiff will use that to meet the costs of a fitness membership or
access to an appropriate fitness facility, and it will also provide her an
opportunity to engage a trainer or kinesiologist from time to time in order to
ensure that her physical fitness endeavours are maximally effective for her. As
well, I make some allowance for ongoing over-the-counter pain medication.

[98]        
The sum to be awarded under this head is $2,500.

Special Damages

[99]        
Finally, the plaintiff seeks to recover what she claims to be special
damages, that is, expenses incurred directly or indirectly to date of trial.
The sum she claims is in the amount of $1,175.54.

[100]     The
specific items and services claimed include physiotherapy treatments and one
massage therapy treatment. I am satisfied that she incurred those expenses. I
am also satisfied that she incurred the expense of a heating pad, a pillow and
a back massager. All of those are reasonably related to the injuries sustained.

[101]     The final
component is a claim for Advil; the claim is for two bottles per month.

[102]     It is my
conclusion that, given the evidence which I have accepted – that the neck/back
pain and headache was substantially abated within months of the accident – this
seems to be excessive. I would reduce that to a total of $400.

[103]     In the
result, the plaintiff will be awarded the sum of $769.86.

Summary of Conclusions

[104]     The
accident of March 18, 2009 was caused by the negligence of the defendants. In
that accident, the plaintiff sustained injuries which entitle her to recover
damages as follows:

Costs

[105]    
Given the outcome of this litigation, unless there are matters of which
I am not aware, I would conclude that the plaintiff is entitled to recover her
costs. This was a matter which proceeded under Rule 15-1, and accordingly her
entitlement to costs is governed by that provision.

“The
Honourable Mr. Justice Williams”