IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130503

Docket: M102398

Registry:
Vancouver

Between:

Joanna Kirstie
Brewster

Plaintiff

And

Wai May Li

Defendant

Before:
The Honourable Mr. Justice Voith

Reasons for Judgment

[1]            
The plaintiff, Ms. Brewster, was injured in
a car accident that occurred on August 3, 2008 (the “Accident"). Liability
for the Accident has been admitted. A central issue in this case is the extent
to which Ms. Brewster’s various post-Accident and ongoing difficulties
were caused by the Accident.

Background and the Plaintiff’s Pre-Accident Condition

[2]            
The plaintiff is presently 38 years old. She was
born in Vancouver and was raised on the west side of the city in a loving and
supportive environment. She was married in 1999. She has two children. Her
daughter Anisa was born in September, 2003. Her son Jayden was born in
September, 2008, just after the Accident.

[3]            
Ms. Brewster’s education and work history
is varied. She finished high school and thereafter took various courses in makeup
and aesthetics and in fashion design. She completed an Associate Certificate in
Marketing Management and Marketing Communication at BCIT in 2006.

[4]            
She has worked at a pharmacy, a spa, a clothing
store, a CIBC Visa Call Centre, as an office administrator and receptionist and
as a collections officer with the Canada Revenue Agency. In September, 2004, Ms. Brewster
took a position as a marketing assistant with the RSC Group (“RSC”), a company
which sold Microsoft products. Her role within the company grew and by late
2007 she was directing some of the marketing campaigns for the company. In
early 2008, her salary was increased to $54,000 and she enjoyed the prospect of
earning up to $60,000 with further bonuses.

[5]            
These aspects of Ms. Brewster’s life
reflect considerable diligence and initiative. She appears to have worked on a
full-time basis at most times. She also periodically pursued various forms of
training or schooling while working including after her daughter was born.

[6]            
Ms. Brewster gave relatively little
evidence about what, if any, further interests she had before the accident. She
had enjoyed some creative interests and had set up a small business through
which she sold home-made cards at local craft fairs. She clearly enjoyed
spending time with her daughter.

[7]            
Most evidence about her interests and activities
came from her friends, her husband and her father. It appears that she would
periodically go camping or on holidays with friends or her family, she would
sometimes ski, play volleyball or co-ed soccer — though I have no real sense
of how often or how seriously she engaged in these activities.

[8]            
Other aspects of her life had been markedly more
difficult. Dr. O’Shaughnessy, a psychiatrist called on behalf of Ms. Brewster,
described her psychological history as "very complicated". Below, I
have described this pre-Accident history at some length because it
significantly informs my conclusions. Aspects of this chronology were
summarized in the defendant’s closing submissions.

[9]            
At about age 15, the plaintiff was sexually assaulted by multiple male
assailants. She suffered in silence for a year or two before confiding in a
school nurse in Grade 12. According to Dr. O’Shaughnessy, the plaintiff
experienced “considerable distress after and ultimately noted social withdrawal
and decline in academic performance”. Dr. Russell, her family doctor of
more than 20 years, describes that the plaintiff was eventually assessed by a
psychiatrist, Dr. Jane Garland, in 1993. Dr. Garland continued to see
the plaintiff for about a year. The plaintiff was subsequently seen by several
different psychologists over the next few years. Her senior high school courses
had to be reorganized so that she could graduate on time. The plaintiff failed
in her goal to get into university after high school. Dr. O’Shaughnessy
described “evidence of anxiety and general distress interfering with her
functioning ability”.

[10]        
The plaintiff testified that, in her early 20s, she struggled with her
self-esteem and consumed alcohol to excess to “help push away those feelings”
arising from the sexual assault.

[11]        
Dr. Russell’s report notes that the plaintiff’s recovery was
stalled by two further incidents of sexual assault that occurred when she was
age 20 and 22, respectively. Though there was only reference to one of these
assaults in her direct evidence and cross-examination.

[12]        
This particular assault, at about age 20, involved a former boyfriend
and a second unidentified male assailant. The police encouraged her to leave
her job and to briefly leave the country, which she did. According to Dr. O’Shaughnessy,
she “went on to experience intrusive memories and fears”. Over the years
following the sexual assaults, the plaintiff was seen on several occasions by Dr. Russell
with complaints of stress-related symptoms of insomnia, irritability and
fatigue.

[13]        
In February 1999, the plaintiff married Matthew Brewster. Following
their marriage, she complained to Dr. Russell of marital stress related to
financial worries and interpersonal conflict with her husband. As reflected in
the records of Greater Vancouver Family Services, the couple undertook marriage
counselling as early as 2000. Their relationship has remained troubled since
that time.

[14]        
Shortly after the birth of her daughter in 2003, the plaintiff learned
that her husband had been having an extra-marital affair. She was diagnosed
with moderately-severe post-partum depression and was prescribed the
anti-depressant Paxil. The couple was referred to marriage counselling. Dr. Russell
testified that the plaintiff remained on Paxil for almost a year, and then
stopped and re-started using this medication several times over the next two
years.

[15]        
The plaintiff and her husband continued to experience marital
difficulties in the fall of 2006 and attended a couples’ workshop in November
2006.

[16]        
In April 2007, the plaintiff suffered a miscarriage. After the
miscarriage, Ms. Brewster reported feeling exhausted and tired. She
admitted that she struggled with her mood. She became significantly depressed in
the ensuing months. She suffered from low mood, irritability, poor sleep and had
difficulty concentrating. Dr. Russell again put her on Paxil.

[17]        
In July 2007, the plaintiff experienced problems with flushing,
stammering and tearing up in meetings at work. She described this in her
testimony as work stress, with associated anxiety at times. She later reported
to Dr. Riar, a psychiatrist called by the defendant, that these events
were actually bullying and intimidation by her colleagues, which became
overwhelming at times and required treatment with an anti-depressant.

[18]        
In August 2007, the plaintiff reported tearfulness, decreased mood and
feeling sad; her sleep was poor, she felt anxious and her mind was racing. She
was having trouble concentrating and making decisions. The plaintiff listed
multiple stressors: her job, her mother’s ill-health, relationship issues with
her husband and feeling responsible for the bulk of her daughter’s care. Dr. Russell re-prescribed Paxil and recommended supportive counseling.

[19]        
On September 28, 2007, Dr. Russell referred the plaintiff to Dr. Diana
Carter, a psychiatrist at the B.C. Women’s Hospital Reproductive Mental Health
Program.

[20]        
The plaintiff ultimately saw Dr. Carter on November 13, 2007,
reporting stress at work, some anxiety, some relationship stresses and
difficulty concentrating. At times, she had trouble concentrating at work to
the extent that she was not getting through all of her tasks as efficiently as
she normally would. Dr. Carter reported the plaintiff’s mental status
included “feeling more irritable, less enthusiasm and more
anxious”. Dr. Carter diagnosed an Adjustment Disorder with mixed
emotional features. At trial, Dr. Ong, a pain specialist who works with
the Pain Clinic at St. Paul’s Hospital and who has treated the plaintiff, explained
that an Adjustment Disorder is a situational depression caused by an external
stressor.

[21]        
In December 2007, the plaintiff’s husband was laid-off from his job. He
participated in a self-employment program sponsored by Employment Insurance to
start his own landscaping business. He incorporated his own landscaping
business in May 2008.

[22]        
On January 9, 2008, the plaintiff again saw Dr. Russell who noted
that she had discontinued taking Paxil about two to three weeks prior to that
date. Dr. Russell explained this was because the plaintiff was either
actively trying to get pregnant in December of 2007 or knew that she already
was pregnant.

[23]        
In late February 2008, the plaintiff’s husband confessed to her
that he had had another extra-marital affair. He also disclosed that something
in his past which he had previously denied was, in fact, true. The plaintiff
was extremely upset by these revelations, particularly as she was pregnant. Dr. Russell
referred the couple for more counselling. On March 31, 2008, the plaintiff
followed up on Dr. Russell’s advice and called Family Services for such
counselling. As reflected in the relevant records, the couple sought
counselling to deal with Mr. Brewster’s “current” extra-marital affair and
his previous affair which took place during the plaintiff’s first pregnancy. To
complicate matters, the plaintiff admitted to having had a number of
extra-marital affairs herself. In addition to their respective trust issues,
the couple was experiencing problems communicating and had financial stress. Counselling
continued once every two weeks for a number of months and stopped shortly
before the Accident.

[24]        
The plaintiff also had some earlier physical
injuries. She was involved in a car accident in 1992 and in two further car accidents
in 1997. In the years that followed, she experienced some intermittent right
shoulder pain and soft tissue symptoms which flared with prolonged sitting.
These symptoms appear to have resolved. In June or July 2008, however, the plaintiff
began seeing a massage therapist, Ms. Perrier, with complaints of pain and
tension in her mid and upper back, in her upper shoulders, between her shoulders
and in her neck. Her symptoms were brought on by prolonged sitting at work
compounded by work she had been doing on her husband’s business plan for his
new landscaping business. Her husband also regularly gave her massages in the
months leading up to the Accident to help with the pain and tension in her
back, neck and shoulders.

[25]        
The foregoing chronology reveals that, on
numerous occasions in the approximately 20 years leading up to the Accident,
the plaintiff had struggled with periods of low mood, depression and anxiety.
Some of these periods were protracted. These conditions gave rise to a wide
range of symptoms including insomnia, difficulty concentrating and
irritability. She had also experienced various stressors including financial
pressures, difficulties at work and her tumultuous relationship with her
husband.

[26]        
Having said this, it does not appear that these
difficulties interfered overtly with her work. Nor is there any evidence that
they interfered in any significant way with her day to day activities or her
ability to care for her daughter or her home.

The Accident

[27]        
Ms. Brewster was the driver of a Toyota
4-Runner that was proceeding eastbound in Vancouver when the defendant pulled
out from a stop sign and drove across her path. Anticipating the impact, Ms. Brewster,
who was then eight months pregnant, was concerned that the airbag in her
vehicle would deploy and pushed away from the steering wheel. Upon impact, she
said she felt a jolt go through her arms and into her neck and said she
experienced immediate pain.

[28]        
Ms. Brewster was assessed by paramedics at
the scene. She had stomach contractions and was taken to Women’s Hospital. Her
daughter, Anisa, who was also in the vehicle, was taken to Children’s Hospital.

[29]        
Ms. Brewster called her husband, who was in
Kamloops for a soccer tournament, and he flew home the next day.

[30]        
Fortunately for Ms. Brewster, the
contractions subsided and she was told that her fetus appeared to be uninjured.
She was discharged and returned home that evening with her daughter.

Events from the Date of the Accident to the Present Time

a)       The First Year or So

[31]        
Ms. Brewster testified that she felt pain
throughout her body on the day following the Accident and that the level of
pain intensified in the days that followed. She saw her family physician, Dr. Russell,
within a few days and almost immediately began to attend at both a massage
therapist and a physiotherapist.

[32]        
Having said that, she went to pick up her
husband at the airport on the day after the Accident and returned to work on
the next workday. She was at RSC for the next two weeks. She completed the work
she was required to and then went on maternity leave, as scheduled, on August
15, 2008. Her son was born, as scheduled, by cesarean birth on September 18,
2008.

[33]        
Ms. Brewster testified that the injuries
she sustained in the Accident resulted in pain in her neck, upper back, mid
back between her shoulder blades, and lower thoracic and lumbar areas. She also
said that sometimes, late in the day, she had pain in her low back and upper
thighs. Various medical reports also suggest that Ms. Brewster struggled
with thoracic outlet syndrome, though this did not form any part of her
evidence and her counsel suggested that it was of limited relevance.

[34]        
The plaintiff’s evidence was that these various
sources of pain and the intensity of the pain were largely static from the date
of the Accident to the present date. She accepted that the intensity of her
pain would abate for short periods, but never in a way that lead to long-term
gain or benefit. I do not consider that this accurately describes the progress or
evolution of her difficulties.

[35]        
It is clear that the months following the birth
of her son were difficult. Because Ms. Brewster was nursing, she was
constrained in her ability to take pain medication. She had to carry her son,
pick him up, bathe him, place him in and out of his car seat and nurse him. She
said, and I accept, that all of these activities caused her difficulty and
pain. She was also unable to sleep properly, partly because of the pain from
her injuries and partly because she had a very young child. She had difficulty
lifting her son’s stroller and going on walks. She testified, and I accept,
that she had no such difficulties following the birth of her daughter.

[36]        
In March, 2009, the family went on a trip to
Cuba with other friends. Ms. Brewster was not, however, able to
participate in any of the more physical beach activities or games.

[37]        
In the first eight or nine months following her
son’s birth, she continued to get treatment from a massage therapist and a
physiotherapist. At one point, on the advice of her doctors, she went to a kinesiologist
but apparently tried to do too much too quickly, with the result that her
exercise regime caused her pain and she discontinued these exercises – a matter
I will return to.

[38]        
She continued to have some difficulty getting
groceries and with more strenuous household tasks. On the advice of Dr. Russell,
she obtained periodic child care so that she could take some breaks during the
day. She had some periodic third-party assistance with housekeeping.

[39]        
The foregoing evidence was also supported by the
evidence of her father, her husband and several of her friends. It is
consistent with the records and reports of Dr. Russell. It was also not
challenged in any meaningful way by the defendant.

[40]        
At the same time, however, she was performing
the bookkeeping, invoicing and tax filings for her husband’s fledgling landscaping
business as the couple had planned that she would. Ms. Brewster was scheduled
to return back to work at RSC in early September, 2009, and she began to make
inquiries to that end in late June, 2009. She told her physiotherapist that she
intended to return to her job at RSC.

[41]        
She had heard indirectly that RSC was
encountering some difficult financial circumstances and, accordingly, she also
began to make inquiries through her friends about other potential job
opportunities. She prepared a new resume. She arranged for child care so that
she could return to work.

[42]        
On an objective basis, this activity, as well as
the relevant records, are consistent with an apparent intention to return to
work on a full-time basis.

[43]        
Ms. Brewster accepted that she was
preparing to return to work as anticipated. She said, however, that she
remained uncertain about how well she would fare at work and whether she would
be able to work full-time from the outset. I accept that evidence. It is
consistent with Ms. Brewster continuing to receive various kinds of
assistance and with her ongoing reports of difficulty to Dr. Russell. I do
not consider it unlikely or unreasonable that she would try, to some extent, to
mask such concerns and difficulties from RSC or, in her resume, from other
prospective employers.

[44]        
In early July, 2009, Ms. Brewster was given
notice of termination of her employment at RSC. She was offered and accepted
eight weeks of severance. She said she hoped to use this money and the extra
time to get stronger and healthier.

[45]        
In a visit to Dr. Russell on August 7, 2009,
Ms. Brewster indicated it was now her intention to only return to work on
a part-time basis and to continue to do the bookkeeping for her husband’s
landscaping business. The reality is that, thereafter, Ms. Brewster never
applied for any form of employment – part-time or otherwise.

[46]        
It is also noteworthy that, for most of the
first year following the Accident, Ms. Brewster accepts that her mood was
good. At page 5 of his report, Dr. O’Shaughnessy notes:

"[n]o other
symptoms or difficulties were noted until an estimated one year after the
accident[,] when she started experiencing again the onset of depressed mood,
frustration, and irritability symptoms as well as anger outbursts. She was
again diagnosed with depression by Dr. Russell and started on an
antidepressant medication (Cipralex).”

[47]        
Both Dr. Russell, in July 2009, and her
locum, in September 2009, sought to refer Ms. Brewster to a psychiatrist
at the British Columbia Women’s Hospital Reproductive Mental Health Program.
Both referrals indicated that the "reason" was
"postpartum". The notes of Dr. Russell’s locum indicate that the
plaintiff was "tearful, can’t sleep, [and had] ongoing stressful
relationship issues". The plaintiff accepted that the description was
accurate. Both referrals indicated that the plaintiff’s current psychiatric
behaviors were "depression" and "anxiety". Ms. Brewster
accepted that she was having difficulty accomplishing tasks and concentrating.
There is no suggestion in either of the referrals that they were related to the
Accident.

b)       Late 2009 to Date

[48]        
Soon after the birth of her son, Ms. Brewster
learned that her husband had had an affair. She accepts that this led to
ongoing distress in her marriage. On March 9, 2010, the plaintiff complained to
Dr. Russell of increasing symptoms of depression. Her Beck Inventory score
indicated "severe depression". She was placed on two different
medications.

[49]        
In early 2010, the plaintiff and her husband
began to again undertake marriage counseling. Later, they were told to seek
such counseling separately. Also in 2010, various circumstances became more
difficult, stressful and complicated for the plaintiff. With Ms. Brewster
out of work, the family suffered from increasing financial pressures. She
reported to Dr. Ong, her pain specialist, that her husband’s business was
not going well. In addition, in November 2010, she began an affair that her
husband only learned of in October 2012 and that ended only a few weeks before
trial. Such conduct could only serve to make her already uneasy home life more
difficult.

[50]        
In addition, at some point in 2010, Ms. Brewster
began to drink more heavily. She accepts that she was not forthright with her
doctors about the severity or extent of her drinking – the import of which I
will return to.

[51]        
Ms. Brewster testified that she also
continued to struggle with the various physical difficulties I described
earlier. She said that these difficulties impacted her ability to care for the
children and her home. She could not get groceries easily. She had difficulty
with physical activity. Her husband said that she was reluctant to go on family
outings. Her friends said that she would sometimes cancel get togethers that
she had scheduled; though she has, for example, gone away overnight with
friends. Several witnesses said that her house is in a state of disarray.

[52]        
She testified that she swims and does stretching
exercises. She has taken up yoga and, indeed, has taken several yoga workshops
with an eye to perhaps pursuing this as a livelihood.

[53]        
Ms. Brewster first saw Dr. Ong in the
spring of 2011 and was treated by her throughout that year for fibromyalgia. Dr. Ong
also referred the plaintiff to Dr. Wiseman, a psychiatrist, to address her
depression and/or anxiety. Both Dr. Ong and Dr. Wiseman continue to
treat the plaintiff today.

[54]        
From January 17, 2012 until March 15, 2012 the
plaintiff attended the Chronic Pain Day Clinic Program (the “Program”) at St.
Paul’s Hospital twice weekly. The Program had multiple components. It involved
such things as an active exercise program and workshops on pain management
strategies, improving sleep quality, stress management and goal setting.

[55]        
Notwithstanding Ms. Brewster’s assertion
that aspects of the Program benefited her, such benefits are not apparent in
any tangible form. She continues to struggle to care for her home and her
children. If anything, the evidence of her husband and friends who have visited
her home suggests that matters may have deteriorated. She eats some of her
meals lying on the couch. She struggles to get her children ready for school.
Relatively modest housekeeping is beyond her. She has trouble concentrating and
is easily irritated by her parents, children and family.

[56]        
Earlier in these reasons, I indicated that I did
not accept that Ms. Brewster’s physical difficulties had been static from
the Accident to the trial. The evidence suggests she improved considerably over
the first year and that her physical condition then began to deteriorate in
mid-2010 and later. In the summer of 2009, though there was some uncertainty
associated with the prospect, she was preparing to return to work on a
full-time basis. Such sustained activity would, at present, be beyond her.

[57]        
In addition, in September 2010, approximately
two years after the Accident, a Notice of Fast Track Litigation was filed. This
speaks to both the perceived relative simplicity of the action and the severity
of Ms. Brewster’s injuries at that time, as well as the expected prognosis
for these injuries.

Issues Which Make this Case Difficult

[58]        
I have the strong sense that very few people know
the plaintiff well. Mrs. Santos was Ms. Brewster’s supervisor at RSC
and also socialized with her. Mrs. Santos spoke very favorably about the
plaintiff’s performance at work. She was not aware, however, that Ms. Brewster
had been struggling with stress at work. From this I can reasonably infer that
she had no knowledge that the plaintiff was getting counseling for such stress.
She had no knowledge or memory of the senior men at RSC being difficult with
the plaintiff.

[59]        
Ms. Fraser, who is a close friend of the
plaintiff and has known her for about 15 years, only learned of the plaintiff’s
marital difficulties relatively recently even though those difficulties span
more than a decade. She was unaware that the plaintiff was having an affair for
the last two years.

[60]        
Ms. Parks, another close friend who has
known the plaintiff for about ten years, was unaware that the plaintiff drank
excessively over the past two years and had never observed such drinking.

[61]        
I raise these matters because, when each of
these witnesses spoke about the plaintiff’s circumstances before and after the
Accident, they did so solely on the basis of what they saw and were told and
without a complete picture of the various difficulties in the plaintiff’s life.

[62]        
I am also troubled by the reliability of the
plaintiff’s evidence, particularly the inaccuracy of the information she gave
her various physicians and the independent medical experts who examined her. Such
inaccuracies are many and varied. The following examples are merely intended to
be illustrative:

1)       She
told Dr. Sovio, an expert in orthopedic medicine, that she did not return
to work after the Accident and that the Cesarean delivery of her son was
brought about by the Accident. Neither of these statements were accurate. She
told him she had had postpartum depression after the birth of her first child
but had not had any other issues with depression. This was not true.

2)       She
did not disclose to Dr. Ong that she had been involved in earlier motor
vehicle accidents, although Dr. Ong said that her questions of Ms. Brewster
ought to have revealed such information.

3)       She
appears to have understated the extent or frequency of her depressive episodes
to various psychiatrists who met with her. She did not tell Dr. Riar that
in 2007 she had a miscarriage which thereafter led to a period of depression
and the need for medication to address that depression.

4)       She told Dr. Riar
that her "overall relationship" with her husband was good – a
statement that cannot be reconciled with the evidence before me.

5)       She told Dr. O’Shaughnessy
that she used Paxil after learning about her husband’s extra marital affair
after the birth of her daughter. She said "she had a good response",
"had a full remission of symptoms and was able to discontinue the Paxil
after approximately six months". She led Dr. O’Shaughnessy to believe
that "she had only the one episode of treatment with antidepressants
before the Accident". Each of these various statements was inaccurate.

6)       Similarly,
she did not disclose to Dr. O’Shaughnessy that she drank excessively in
her early 20s in circumstances where the doctor said that his questions would
have elicited that information from her.

[63]        
I need not address whether such inaccuracies
were purposeful. They do, however, impact the reliability of her evidence.

[64]        
Of greatest concern and significance is the
plaintiff’s lack of candor with her doctors about her excessive drinking. In
her direct evidence, she admitted that she had not been honest with Dr. Russell
or Dr. Ong about the severity or extent of her drinking. She said she had
not been “open [with them] about how bad it was”. The notes of Dr. Wiseman,
which were relied on at trial by the plaintiff, and which plaintiff’s counsel accepted
that I could rely on, indicated that at some points in time the plaintiff would
drink "until she fell asleep". The plaintiff told Dr. Riar that,
in the months prior to when they met, she drank every night and would get drunk
on some nights. Dr. Riar indicated that, when he sought to pursue this
issue, Ms. Brewster was not "clear" with him.

[65]        
At trial, the plaintiff conceded that her
excessive drinking was a problem until the end of 2012, or about two months
before trial. She says that, at that point, she made a commitment to herself to
stop drinking.

[66]        
Each of the reports of Dr. Ong, Dr. Russell,
Dr. O’Shaughnessy and Dr. Riar, which are all dated in 2011 and 2012,
indicate the plaintiff reported that she had drank excessively in the past, but
that she was, at the point in time when she met with them, drinking less both
in terms of quantity and frequency. The plaintiff told Dr. Russell in
March 2011 that she would stop drinking. This clearly did not happen. There are
no further references in Dr. Russell’s report to alcohol. The plaintiff
apparently told Dr. Ong in April, 2012 that she had stopped drinking
completely. This clearly was not true. Other reports, for example those of Dr. O’Connor
and Dr. Sovio, simply make no reference to her drinking at all.

[67]        
It is clear, and not surprising, that
information related to the extent of Ms. Brewster’s alcohol consumption
was important to the physicians who dealt with her.

Alcohol Consumption

[68]        
Three issues arise from the plaintiff’s failure
to truthfully address her excessive alcohol consumption with her various
treating physicians and the medical experts she met with.

[69]        
The first is whether the various medical
opinions I was provided with were undermined by the plaintiff’s dishonesty. Are
the conclusions expressed in those opinions compromised because the plaintiff
was struggling with excessive alcohol consumption and because she misled the physicians
who asked her about the issue? Ms. Brewster, who was the first witness to
testify at trial, accepted that she had not been honest with Drs. Ong and
Russell when they asked her about her drinking. That issue, or what potential
impact Ms. Brewster’s lack of candor may have had on the substantive
opinions of different doctors, was not directly addressed by the defendant in
the evidence or in the cross-examination of these doctors and other doctors.

[70]        
It was open to the defendant to pursue this line
of inquiry. The defendant, generally speaking, chose not to do so. It is not
now my role to speculate on the issue.

[71]        
Second, did the plaintiff’s excessive alcohol
consumption arise as a result of the Accident? There is no evidence that this
is so. Dr. Riar said that individuals who struggle with pain issues tend
to resort to or rely on opiates. Individuals who suffer from depression or
anxiety tend to turn to alcohol.

[72]        
The third issue is whether Ms. Brewster’s
alcohol consumption adversely affected her recovery. Each of the physicians who
dealt with Ms. Brewster and addressed her alcohol use emphasized the
importance of Ms. Brewster significantly curtailing or ceasing such use.
Some such statements were generic in nature and were directed to the plaintiff’s
general health and not to her more acute difficulties. Other aspects of the
evidence, however, were directly relevant to her specific difficulties. Dr. O’Shaughnessy
accepted that excessive alcohol use can cause or worsen depression and said that,
if a person consumed more than perhaps one to three glasses of wine a day, it
might complicate or worsen depression symptoms. He said that excessive alcohol
consumption can reduce functioning and delay recovery.

[73]        
Dr. Riar, who was clearly concerned by Ms. Brewster’s
alcohol consumption, opined that "her drinking counterbalanced the full
benefit of medication". He was also directed to an earlier opinion of Dr. Wiseman
and asked to comment on it. He said that the plaintiff had been drinking at the
time of Dr. Wiseman’s report, that the plaintiff had since moderated her
drinking (based on what she had told him) and that this would have led to an
improvement in her condition. This exchange clearly establishes Dr. Riar’s
view that Ms. Brewster’s drinking impacted her recovery.

[74]        
Dr. Ong was never cross-examined on the
plaintiff’s alcohol use because Dr. Ong’s evidence was taken by deposition
prior to the plaintiff revealing that she had not been straightforward in
addressing the level of her drinking with Dr. Ong.

[75]        
Based on the plaintiff’s own admissions, it is
clear that the plaintiff drank excessively for a protracted period of time. It
is not clear if her drinking would periodically abate. That is what she told
her doctors. She did not, however, say this at trial.

[76]        
Based on the foregoing evidence, I find that her
drinking adversely influenced her recovery and that it likely worsened her
depression.

Causation

[77]        
In cases of negligence, the plaintiff must establish:  (1) that the
defendant was the “cause in fact” of the damage suffered and (2) that the
defendant was a “proximate cause” of the damage, “in other words, that the
damage was not too remote from the factual cause. … The remoteness inquiry
assumes that but for the defendant’s wrongful act, the plaintiff’s loss would
not have occurred, but places legal limits on the defendant’s liability” (Hussack
v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 54, 19
B.C.L.R. (5th) 257).

[78]        
The plaintiff must establish causation for both injury and loss.
If a defendant did not cause an injury, (s)he is not liable for the losses
flowing from that injury. Even if a defendant did cause an injury, (s)he is not
liable for any losses or damages that were not caused by the injury. In Blackwater
v. Plint, 2001 BCSC 997 at para. 364, 93 B.C.L.R. (3d) 228 [Blackwater
BCSC], Chief Justice Brenner, as he then was, adopted the following
dichotomy between “injury” and “loss”:

"injury" refers to the
initial physical or mental impairment of the plaintiff’s person as a result of
the [defendant’s act], while "loss" refers to the pecuniary or
non-pecuniary consequences of that impairment.

[79]        
The basic principle of tort law is that the defendant must put the
plaintiff back in the position she would have been in had the defendant’s
tortious act not occurred (Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32).
The corollary of this principle is that the defendant need not compensate the
plaintiff for any loss not caused by his/her negligence or for “debilitating
effects of [a] pre-existing condition which the plaintiff would have
experienced anyway” (Athey at para. 35).

[80]        
Since the burden is on the plaintiff to prove causation, she must
establish that the defendant’s tortious act caused both an injury (i.e.
her pain disorder and/or her depression) and a resulting loss (e.g. non-pecuniary
loss or lost wages). “The former is concerned with establishing the existence
of liability; the latter with the extent of that liability” (Blackwater BCSC
at para. 363). In the case at hand, if the plaintiff cannot
establish that one of her injuries was caused by the MVA, then she
cannot recover from the defendant for the losses that flowed from that injury.
Additionally, if the plaintiff cannot establish that the injury caused by the
defendant, in turn, caused a certain loss, then she cannot recover from the
defendant for that loss.

[81]        
The test for causation in Canada is the “but-for” test (Bradley v.
Groves, 2010 BCCA 361 at para. 37, 8 B.C.L.R. (5th) 247; Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-22, [2007] 1 S.C.R. 333; Blackwater
v. Plint, 2005 SCC 58 at para. 78, [2005] 3 S.C.R. 3 [Blackwater
SCC]; Clements v. Clements, 2012 SCC 32 at para. 8, [2012] 2
S.C.R. 181). To assess whether the defendant caused an injury, the trial judge
asks if, without the defendant’s tortious act, the injury would have resulted.
If the answer is “yes”, the defendant is not liable for the injury or the
losses flowing from it (Athey at para. 41). If the answer is “no”,
the defendant is liable to the plaintiff for the whole of the losses
flowing from the injury (Athey at paras. 22 and 41).

[82]        
Once causation for an injury is established, the defendant is liable to
the plaintiff for all of the loss(es) flowing from that injury. The
losses “flowing” from an injury are those losses which the plaintiff proves, on
a balance of probabilities, would not have occurred “but-for” the defendant’s
act (Blackwater SCC at para. 78; Smith v. Knudsen, 2004 BCCA
613 at para. 26, 33 B.C.L.R. (4th) 76).

[83]        
It is also necessary to recognize that this case
engages both “thin skull” and “crumbling skull” principles. Both these
principles were succinctly summarized in Athey:

[34]      … The "crumbling skull" doctrine is an
awkward label for a fairly simple idea. It is named after the well-known
"thin skull" rule, which makes the tortfeasor liable for the
plaintiff’s injuries even if the injuries are unexpectedly severe owing to a
pre-existing condition. The tortfeasor must take his or her victim as the
tortfeasor finds the victim, and is therefore liable even though the
plaintiff’s losses are more dramatic than they would be for the average person.

[35]      The so-called
"crumbling skull" rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s "original position". The
defendant need not put the plaintiff in a position better than his or
her original position. The defendant is liable for the injuries caused, even if
they are extreme, but reed not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have
experienced anyway. The defendant is liable for the additional damage but not
the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780
and John Munkman, Damages for Personal Injuries and Death (9th ed.
1993), at pp. 39-40. Likewise, if there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence, then this can be taken into
account in reducing the overall award: Graham v. Rourke, supra; Malec
v. J.C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra,
at pp. 851-852. This is consistent with the general rule that the
plaintiff must be returned to the position he would have been in, with all of
its attendant risks and shortcomings, and not a better position. [Emphasis in
original.]

[84]        
Recent cases from both the B.C. Court of Appeal and B.C. Supreme
Court continue to paraphrase this language. Some examples include: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 26-37,
22 B.C.L.R. (4th) 1; Zacharias v. Leys,
2005 BCCA 560 at paras. 13-21, 219
B.C.A.C. 88; Penland v. Lofting, 2008
BCSC 507 at paras. 93-97, 60 C.C.L.T.
(3d) 265; Carr v. Simpson, 2010
BCSC 1511 at paras. 113-117.

[85]        
It is necessary to address three
distinct classes of injury that the plaintiff has struggled with at different
times since the Accident: (a) various physical injuries; b) depression and
anxiety; and c) Pain Disorder or fibromyalgia.

a)       Physical Injuries

[86]        
There is no doubt that the plaintiff suffered from
various physical injuries and the consequences of them after the Accident. The
defendant does not contest this.

b)       Depression and Anxiety

[87]        
I find, however, that the plaintiff’s
depression, periods of low mood, and anxiety subsequent to the Accident were
not caused by the Accident. Rather they were, on the balance of probabilities,
a product of her historical psychological conditions and challenges.

[88]        
Each of Drs. Russell, Ong, Riar and
O’Shaughnessy said that a person with a history of depression was more likely
to suffer from further episodes of depression. Dr. Russell accepted that
the plaintiff, pre-Accident, had had three depressive episodes. Dr. O’Shaughnessy
said that a person who had had three such episodes was at a 90% risk of further
episodes of depression.

[89]        
Apart from such broad evidence directed at the
general population’s predisposition to suffer from successive periods of
depression, the medical evidence expressly addressed the circumstances of the
plaintiff. Dr. O’Shaughnessy accepted that he was unable to opine that the
Accident caused, on a "but for basis", the plaintiff’s post‑Accident
depression.

[90]        
Dr. Riar was of a similar opinion. He
considered it likely that the various stressors in the plaintiff’s life, such
as disharmony with her husband, together with her previous history of
depression and postpartum depression gave rise to her post‑Accident
emotional and psychological difficulties.

[91]        
Further, Dr. Russell’s report does not relate
the plaintiff’s psychological challenges to the Accident. She has, instead,
opined: "She was at higher risk for depression due to her previous
history, her post-partum state, and personal stressors, and she went on to be
significantly depressed”. I reiterate that both Dr. Russell’s referral of
the plaintiff to a psychiatrist, as well as that of her locum some months
later, were not in any way associated with the Accident.

c)       Pain Disorder or Fibromyalgia

[92]        
Finally, I consider the evidence establishes
that the plaintiff’s ongoing pain condition, described by Drs. O’Shaughnessy
and Riar as a "Pain Disorder", and by Drs. Ong and Russell as
"fibromyalgia" were caused by the Accident. Specifically, I find that,
"but for" the Accident, the plaintiff would not have developed these
conditions.

[93]        
Dr. O’Shaughnessy explained the interplay
between the plaintiff’s physical injuries from the Accident and her existing psychological
condition:

A Pain Disorder is one of the somatoform
illnesses in which the predominating complaints are symptoms of pain but in
which psychological factors are thought to be playing a significant role. There
are three subtypes with the most common being a mixture of physical or organic
factors and psychological factors. I think this occurs in this instance.
…

In my opinion,
the Pain Disorder again was caused by multiple factors including psychological
issues unrelated to the accident as well as the injuries sustained in the
accident. By definition, however, she would not have developed a Pain Disorder
had she not experienced the physical injuries in question. I think the
psychological factors are certainly playing a significant role in the
perpetuation of her complaints and difficulties.

[94]        
Dr. Riar, whose opinions are consistent
with this conclusion, said:

On the issue of
causation, I believe that initially the impact of the accident was responsible
for bringing on the symptoms of pain but with the passage of time they have
become chronic in nature. I believe that her chronic pain disorder is
maintained by psychological factors which are significant, as well as her
medical condition. Her ongoing anxiety and depression complicate the situation,
and by doing so it is perpetuating and aggravating her condition.

[95]        
Dr. Russell succinctly said: “She also
developed a chronic pain syndrome with fibromyalgia, which was clearly
triggered by the MVA”.

[96]        
None of the foregoing opinions were challenged
by the defendant in any meaningful way. The defendant made some effort to
suggest that the source of pain which "precipitated" the plaintiff’s pain
disorder was not the Accident but, potentially, her pre‑Accident neck and
shoulder pain or the pain associated with childbirth or her inability to get a
good night’s sleep because her children would wake her. Dr. O’Shaughnessy
thought this unlikely and I do not accept that any of these sources caused her
ensuing difficulties.

[97]        
Accordingly, though the plaintiff’s
psychological difficulties were not caused by the Accident and though such
difficulties only surfaced a year or so after the Accident, they reflected an
existing vulnerability and predisposition in the plaintiff. It was that
existing vulnerability or predisposition that, in combination with the
plaintiff’s physical injuries, gave rise to and perpetuated the plaintiff’s pain
disorder. Such vulnerability properly engages thin skull principles with the
result that the defendant is responsible for the plaintiff’s present pain disorder
or fibromyalgia.

[98]        
This, however, is not the end of the analysis.
The plaintiff need also establish that the specific difficulties she struggles
with are referable to her pain condition as opposed to her psychological
issues. Simply put, those aspects of her ongoing presentation which flow from
her psychological condition are not the responsibility of the defendant. Such consequences
of her psychological difficulties would have arisen in any event. Thus,
difficulties with low mood or depression, sleep, concentration, irritability,
stress and anxiety are all symptoms she struggled with prior to the Accident
and that she has continued to struggle with thereafter.

Prognosis

[99]        
The plaintiff’s prognosis, based on the whole of
the medical evidence, is significantly at odds with the claim being advanced by
the plaintiff. The plaintiff sought to present herself as significantly
disabled and with relatively limited hope of meaningful recovery. As one basis
for her claim, the plaintiff sought to advance a scenario where, following the
trial, she would begin a course of rehabilitation for perhaps a year.
Thereafter, she might work as a restorative yoga teacher on a part-time basis
for four to five years. At that point, it was suggested that she might be
positioned to secure more conventional employment on a part-time basis. I find
that this scenario considerably understates the plaintiff’s prospects.

[100]    
I start with the observation that the
plaintiff’s actual physical limitations are not as severe as she portrays. The
report of Dr. O’Connor, a specialist in occupational medicine who was
retained by the plaintiff, and who saw the plaintiff in January, 2012, opined:

She has had
chronic neck pain, mid-back pain, and low back pain that comes and goes and
roves from place to place. She rates her neck, mid-back, and low back pain as
severe and daily. Her rating of pain is 9/10 and, when compared with her
functional capabilities and what she describes that she is capable of doing day
to day, is not in keeping with this level of pain, in my opinion. From a
functional point of view she is affected by her pain to a moderate degree but I
would not say she is severely limited. Her mood, anxiety and troubles sleeping are
more likely than not affecting her pain experience and amplifying that pain
experience. From a practical point of view, her physical capabilities are more
in keeping with somebody with a moderate level of discomfort or limitations
rather than somebody with a severe disability or limitation in daily, work and
recreational activities.

[101]     The opinions of Dr. Sovio, recognizing that he is an expert in
orthopedic medicine and that he accepted he had limited experience in dealing
with fibromyalgia, aligns closely with this opinion.

[102]    
The opinions of the various experts that I heard
from are relatively consistent and, in the main, relatively optimistic. Dr. O’Connor
said:

It is my impression that she is capable of
light or sedentary work at present and with further conditioning she will be
capable of doing this on a full-time basis. At present, she is too
deconditioned to be able to manage with full-time work, although over the next
three to six months this should improve to the point where she is capable of
this if she continues to work on her conditioning. Even though she reports that
she has been doing some conditioning, she is quite deconditioned in particular
involving the muscles of the back, neck, and shoulder girdle.

This will realistically take four to six
months for her to build up her strength and do this. I would recommend she work
on this over this period of time and at that point I would say that she would
be ready for an attempt at a return to employment at light or sedentary desk
work.

Negative
prognostic factors are her history of depression and the recurrence of her
postpartum depression after the motor vehicle accident and the birth of her
second child. There were also some marital struggles. She also lost her job,
and was struggling with coping with trying to maintain her duties at home as
well as a new mom. During this time she had to try and do her own physical rehabilitation.
These excess demands on her time have made it difficult for her to progress
through her rehabilitation program after such injuries.

[103]    
Dr. O’Shaughnessy, who saw the plaintiff in
February 2012, said:

It is too early
to offer a final prognosis and I would defer that until she has completed the
St. Paul’s Hospital pain program. On a positive, note, however, is the fact
that she does respond well to antidepressant medications and certainly when I
saw her there were no obvious signs of significant Clinical Depression. She
still remained somewhat fragile and would experience periods of depressed mood
anywhere from one to seven days at a time triggered by stresses and/or
frustrations with her inabilities to do the things she liked because of the
pain symptoms. She was, however, able to carry on other activities and
functions that she enjoys, e.g. seeing friends, enjoying time with her children
and time with her husband on and off, etc. Appetite and weight have been fairly
stable. Sleep patterns remain disrupted in large measure due to a combination
of child care as well as her discomforts and hopefully these will stabilize
with time. I fully expect that if she is able to deal with some of the
extraneous stresses in her life including the financial problems and the
marital conflicts that the tension issues in general will diminish and
hopefully the pain complaints will decline accordingly.

[104]    
Dr. Riar’s opinion also aligns with these
views:

I also believe that she should start doing
some volunteer work and prepare herself to go back to some kind of employment.
The stress of the litigation also should be concluded as this will enhance her
recovery and will take away any tendency to take a sick role for secondary
gains.

As far as
disability is concerned, I do not believe that Ms. Brewster was disabled
at the time of my interview with her. As far as her prognosis, at that time I
felt that she would continue to have those symptoms for the next four to six
months, but with psychiatric treatment, her functioning would have been better.
As far as her long-term prognosis, it is guarded, and this has to do with her
constitutional and genetic vulnerability rather than any effect of the
accident. As far as her pains are concerned, I felt that once her psychiatric
symptoms are under control there would be a significant improvement in her pain
symptoms.

[105]     It is noteworthy that these experts all saw the plaintiff
approximately 3 1/2 years after the Accident or about a year prior to trial.

[106]     Dr. Russell, whose report is dated November 2012, has referred
to segments of the foregoing opinions of Dr. O’Connor and Dr. O’Shaughnessy
and has adopted those opinions. Aspects of Dr. Russell’s report and
evidence are a little inconsistent. On the one hand, she expressed the opinion
that, given the duration of the plaintiff’s symptoms, her prognosis was
guarded. She further said in her cross-examination, that getting the plaintiff
to work four hours a day would be a “reasonable endpoint" given that she
also cares for her two children. At the same time, she expressed the opinion
that "currently" the plaintiff was unable to return to full-time
labor and that at the "present time" she believed that the plaintiff
was best suited to short-term contract work.

[107]    
Mr. Nordin, an expert in vocational rehabilitation,
said:

it is my opinion
Ms. Brewster likely is not able to cope with any kind of full-time
employment at present, and will require flexibility with part-time employment
(in terms of breaks and changes of body positioning). Ms. Brewster is
likely best suited, at present, to work she can perform at home. Whether she
will be able to obtain such work, and the potential earnings involved, remain
to be seen. However, it is my opinion her earning ability has been reduced
relative to her pre-injury condition. Whether Ms. Brewster will make
sufficient improvement in the future to return to full-time employment, as
suggested in Dr. O’Connor’s report, also remains to be seen.

[108]    
The opinion of Dr. Ong was perhaps the most
cautious of the opinions presented. She said:

At this point given her ongoing symptoms
[are] in keeping with fibromyalgia, low energy level and depression, I don’t
believe she will be able to return to full-time employment. Should her symptoms
stabilize, she may be able to return to part-time sedentary occupation if she
continues to work on her rehabilitation program and conditioning.

Unfortunately given
her history of depression and recurrent post-partum depression following the
MVA and birth of her second child associated with her marital struggles and
loss of her job, her prognosis remains guarded.

[109]     A further factor is material to Ms. Brewster’s prognosis. This
pertains to her conditioning. Dr. O’Connor, who described her as
"severely deconditioned" in his report, developed a detailed
strengthening regime for her. He observed that she had stopped going to
physiotherapy in April 2010. He further observed that Dr. King also
prescribed exercises for her which she did not do. Still further, he recognized
that, though she swam at a pool, did stretching exercises and saw both a
massage therapist and a chiropractor, these were not the forms of exercise that
she required. The opinions of Dr. Russell and Dr. Sovio are
consistent with these conclusions. Dr. Russell accepted that the plaintiff
is extremely deconditioned. Both physicians expressed the view that she
requires exercise and active treatments rather than the passive modalities that
she has preferred. Each of Drs. Ong, Riar and O’Shaughnessy also place
some emphasis on the need for the plaintiff to become better conditioned. Thus,
virtually all of the evidence I heard associated her eventual prognosis with
her level of conditioning.

[110]     There is good reason for this. One example will suffice. Ms. Brewster
testified that her injuries interfere with her ability to walk with her
children. The report of Dr. Ong noted that after Ms. Brewster had
completed the program at the Pain Clinic in March 2012, which she was required
to attend twice weekly for eight weeks and which had an active exercise regime,
she was able to walk for 45 minutes four times per week. Ms. Brewster, in
her evidence, testified that she now walks twice a week for ten minutes. In
making these observations, I recognize that Ms. Brewster now attends
restorative yoga classes on a regular basis and that such classes were
recommended at the Pain Clinic. It is not clear to me, however, that these
classes were intended to serve as a substitute for the more active exercise
regimes that the various physicians proposed.

[111]     I consider that the medical evidence, together with a careful
assessment of Ms. Brewster’s circumstances, suggests a relatively positive
prognosis. Certainly, the evidence presents a prognosis which is significantly
more positive than the path the plaintiff has laid out for herself.

[112]     Ms. Brewster’s depression is said to be in remission and is
being controlled by her medication. Her adjustment disorder is situational in
nature and is influenced by the various stressors that are present in her life.
Dr. Riar commented that her psychological improvement was likely to give
rise to "significant improvement in pain". The plaintiff’s
circumstances and a number of the specific stressors in her life are likely to
abate in the near future.

[113]     This litigation was identified by several experts and by Ms. Brewster
as being one such stressor. Its conclusion will provide her with some closure.
Her immediate financial concerns will be addressed by the award that I make.
She has said that she recently stopped drinking. If this is true, this will
help her mood and the efficacy of the medication that she takes. It appears
that she and her husband, who are now living together for financial reasons,
are at a crossroads in their relationship. Whichever way they proceed will
likely abate the turbulence and the stress that flow from their relationship.

[114]     Her children are now 4 1/2 and 9 1/2 years old. They are past the
age where they are likely to wake her at night and to interfere with the
restorative sleep that she requires. They will both soon be in school on a
full-time basis, thereby easing some of the burden on Ms. Brewster and
allowing her some time for exercise, for rest and for herself.

[115]     The extent to which the plaintiff follows an active exercise regimen
will be in her control. She will not be impeded by finances or time. There is
no evidence that her mood limits her ability to engage in a beneficial exercise
regime.

Non-Pecuniary Loss

[116]     In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, 263
D.L.R. (4th) 19, Justice Kirkpatrick identified the following
non-exhaustive considerations that are relevant to an award of non-pecuniary
damages: age of the plaintiff; nature of the injury; severity and duration of
pain; disability; emotional suffering; loss or impairment of life; impairment
of family, marital and social relationships; impairment of physical and mental
abilities; loss of lifestyle; and the plaintiff’s degree of stoicism. The
object is to provide the injured person with reasonable "solace" for
his or her misfortune. Accordingly, an appreciation of the individual’s loss is
central.

[117]     The plaintiff asserts that the foregoing factors, together with a
measured assessment of relevant authorities, supports an award of between
$100,000 – $125,000 for non-pecuniary damages. The defendant, conversely,
argues that an award in the range of $40,000 – $65,000, with a further
reduction of 25% to recognize that the plaintiff’s depression and related
symptoms were not caused by the Accident, is appropriate.

[118]     I consider, on balance, that the cases relied on by the plaintiff
more closely align with the findings I have made and with the circumstances of
the plaintiff. Having said that, I consider that most of these cases are
significantly different in at least one material respect. In each, the
prognosis for the plaintiff was appreciably more negative than in this case.

[119]     In Morlan v. Barrett, 2010 BCSC 1767, affirmed with respect
to the non-pecuniary damages award 2012 BCCA 66, a 46-year-old plaintiff, whose
injuries were "indivisible" (para. 2) and who was severely
restricted in all aspects of her daily life as a result of chronic pain and
fibromyalgia, was awarded $125,000 for her non‑pecuniary loss. The trial
judge found that the possibility of her condition improving was "mere speculation",
while the likelihood of her condition remaining the same or deteriorating were
"both great" (para. 20).

[120]     In Eccleston v. Dresen, 2009 BCSC 332, the plaintiff’s
chronic pain condition, which had existed for the six years since her accident,
remained "almost completely debilitating for her" (para. 138).
The court considered that it was likely to do so for the next five years and
might, thereafter, diminish. The court awarded the plaintiff $120,000. The
award was reduced by 10% to account for the prospect that the plaintiff would
have suffered from her depression symptoms in any event, though the court did
not consider that this was "a large risk" (para. 136).

[121]     In Shapiro v. Dailey, 2010 BCSC 770, 33 B.C.L.R. (5th)
364, varied on other grounds 2012 BCCA 128, the court awarded
$110,000 for non-pecuniary damages. The plaintiff was 23 at the time of her
accident and suffered profound changes in every aspect of her life. The court
considered that her prognosis was "not hopeless”, but was “extremely guarded";
nothing more than "modest improvement" in her condition could be
expected (para. 59).

[122]     Based on the findings I have made, the legal considerations I have
identified and the authorities I have reviewed, I consider that an appropriate
award for the plaintiff’s non-pecuniary loss would be $90,000. Two adjustments
have to be made to this figure.

[123]     First, I have said that I am satisfied that a number of the symptoms
which the plaintiff has struggled with were not caused by the Accident; and would
have surfaced in any event. This latter conclusion is amply supported by the
evidence before me and goes well beyond "mere speculation" and
constitutes "a measurable risk" or a “realistic chance"; Athey
at paras. 27, 35-36, 48; T.W.N.A. at para. 59.

[124]     In such cases, the approach that is normally taken is to apply a
percentage discount to the order that would otherwise be made; York v.
Johnston (1997), 148 D.L.R. (4th) 225 at para. 8, 37 B.C.L.R.
(3d) 235 (C.A.). In this case, I consider the appropriate
adjustment should be 15%. This figure reflects the likelihood Ms. Brewster
would have suffered and/or will suffer from certain symptoms associated with
depression or low mood in any event and the relative severity of those symptoms
at certain times.

[125]     Second, I consider that an adjustment should be made to account for Ms. Brewster’s
excessive drinking and the impact that this has had on her condition and
symptoms. I consider that that her drinking likely exacerbated aspects of her
condition and impeded her recovery. Counsel for the plaintiff submitted, in
response to a question from me, that these conclusions should properly be
treated as a failure on the part of the plaintiff to mitigate her losses. In Smaill
v. Williams, 2010 BCSC 73 at paras. 73 – 77. Justice Russell found
that the plaintiff’s post-MVA drug use impeded his recovery (para. 77) and
amounted to “a failure to mitigate his wage loss and his pain” (para. 73);
see also Norgaard v. Boudreau, [1992] B.C.J. No. 2043 (S.C.) which
also deals with a plaintiff’s continued drinking as a failure to mitigate. The
mitigation framework set out in Chiu v. Chiu, 2002 BCCA 618 at para. 57
by Justice Low requires the defendant to show that: (1) the plaintiff acted
unreasonably by not following a recommended treatment; and (2) the extent to
which the plaintiff’s damages would have been reduced if she’d acted
reasonably.

[126]     I find that Ms. Brewster understood she was being told that her
excessive drinking was impacting adversely on her health. I have considered the
concerns expressed by the court in Wahl v. Sidhu, 2012 BCCA 111, at
paras. 43-46, about the application of mitigation principles in certain cases
and do not consider that those concerns are engaged in this case.

[127]     I consider that an appropriate reduction of the award I would
otherwise have made for Ms. Brewster’s non‑pecuniary losses is
appropriate and have fixed that reduction at 15%.

[128]     In the result, I consider that an appropriate award, after the two
adjustments I have referred to, is $63,000.

Past Wage Loss

[129]     Ms. Brewster has advanced a claim for past wage loss. The
assessment which underlies that claim recognizes that Ms. Brewster’s job
at RSC was terminated before she returned from her maternity leave. The claim
is premised on Ms. Brewster’s loss of earning capacity. The
appropriateness of such an assessment, including for past wage claims, was
recently confirmed in Ibbitson v. Cooper, 2012 BCCA 249 at para. 19,
324 B.C.A.C. 124. The defendant does not question the
validity of the approach being used by the plaintiff to measure this aspect of
her claim.

[130]     In practical terms, the amount that Ms. Brewster had been
earning at RSC, $54,000 per year with the potential to earn a bonus of up to
$60,000, does not quite align with the assumptions contained in the report of Mr. Peever,
an economist called by the plaintiff. The figures he has relied on for persons
engaged in sales, marketing and advertising positions would have the plaintiff
earning approximately $85,000 at the present time. The ensuing calculation
performed by Mr. Peever generated a loss of approximately $240,000 for the
period from September 2009 to the date of trial. A more accurate estimate of
salary would generate a figure of $190,000 – $210,000.

[131]     Apart from the fact that the starting assumptions in Mr. Peever’s
report are too high, two further adjustments are appropriate. Mr. Peever’s
calculations include a "risk and choice" labor market contingency of
32.5%. This contingency accounts for "average" contingencies such as
sickness, injury, child rearing and other factors. I am satisfied that the
application of a similar type of contingency to Ms. Brewster’s
circumstances is appropriate and, indeed, is conservative. Ms. Brewster has
at times drank excessively. She suffered a serious depression in late 2009 and
into 2010. She has continued to struggle with situational depression since
then. Though I accept that Ms. Brewster worked through earlier depressions,
the evidence suggests that this depression was quite severe.

[132]     It is to be recalled that in July 2009 Ms. Brewster was preparing
to go back to work full-time and that she had therereafter decided to both work
part-time and to manage the books of her husband’s company.

[133]     I was provided with a calendar which identified Ms. Brewster’s
various special expenses in given months. That calendar establishes that during
the period from February 2010 to July 2010 Ms. Brewster was only going to
her physiotherapy or to massage therapy on average once a month – less than she
had earlier and less than she did later. From mid-February 2010 until mid-April
2010, she sought no such treatment. She had full-time daycare for her son on
alternate weeks and her daughter was in school during the day for most of the
time. Nevertheless Ms. Brewster considered herself unable to work part-time
or, indeed, to try to find such work. Ms. Brewster said that it was during
this period that her depression was particularly severe.

[134]     I consider that there was limited prospect of any meaningful positive
contingency arising during this three-year period. Ms. Brewster was in an
unhappy marriage, was struggling with her mood, was drinking excessively and
had two young children. These are considerable burdens for any person.

[135]     The second necessary adjustment arises from the income she earned
working for her husband’s company. Had she been working full-time, she could
not have earned this income. Her tax returns for 2009 to 2011 indicate that she
earned $47,372 during that period. To this I have added a further $20,000 for
2012. That figure represents the average of her earnings in 2010 and 2011 and
some small sum for what she would have earned in 2013 prior to trial. Recognizing
this figure and adjusting for primarily negative contingencies, I have assessed
Ms. Brewster’s past wage claim at $75,000. I am satisfied that this
figure, though generated partly as a calculation, properly reflects Ms. Brewster’s
pretrial loss of earning capacity.

[136]     I recognize that I have not expressly addressed the issue of
mitigation and Ms. Brewster’s drinking under this head of loss. I consider
that I have done so, albeit indirectly, in adjusting Ms. Brewster’s wage
loss for "risk and choice" or for negative contingencies. I accept
that these two matters are very different conceptually. Nevertheless, Ms. Brewster’s
drinking did impact her depression which is something I have considered. Moreover,
I consider that a further specific adjustment would ascribe an artificial
precision to the assessment I have undertaken and would yield a result that did
not properly represent Ms. Brewster’s loss.

Special Damages

[137]     Ms. Brewster has claimed $52,015.60 in special damages.
Significant portions of that claim cannot be supported.

[138]     Of this figure, $34,725 relates to child care that Ms. Brewster
placed her children in at various times. All but $760 of that relates to child
care expenses from September 2009 to the date of trial. Ms. Brewster’s
counsel accepted that, had the plaintiff been working, she would have incurred
these expenses in any event. He also accepted that these damages could not
coexist with the claim for past wage loss that Ms. Brewster had brought.
He argued, however, that such child care costs should potentially be split
between Ms. Brewster and her husband. There was no evidence from the
plaintiff or her husband, however, to support this contention. In addition, it
appears to be inconsistent with Ms. Brewster’s tax returns which indicated
that she claimed in excess of $8,500 for child care expenses for the 2010 tax
year alone.

[139]     The second major difficulty with this claim arises from Ms. Brewster’s
regular attendance at chiropractor or massage therapy treatments. She has
attended, for example, at her massage therapist almost 85 times. The combined
cost of these treatments is approximately $10,000. The medical evidence I
heard, and which I have referred to, does not support the need for her to have
attended such treatments with the frequency that she did. Specifically, Dr. Russell
and Dr. Sovio recommended against such passive treatments absent the need
for short-term intervention for acute flares in her pain. Dr. O’Connor
also questioned the value of such treatments.

[140]     Under such circumstances, the full range of the expenses that Ms. Brewster
seeks to recover cannot be justified; Mohan v. Khan, 2012 BCSC 436 at para. 209;
Connolly v. Cowie, 2012 BCSC 242 at para. 56.

[141]     I have reduced these specific expenses by approximately 60% or to $4,000.
I consider that the balance of the individual expenses that Ms. Brewster
has claimed is appropriate. I have awarded $14,015.60 under this head of loss.

Future Wage Loss

[142]    
The legal framework for the assessment of the
plaintiff’s future wage loss claim has been described numerous times. The decision of Reilly v. Lynn, 2003 BCCA 49, 10
B.C.L.R. (4th) 16 contains a useful summary of some of the
principles and approaches that are to be used when assessing future earning
capacity:

[100]    An award for loss of earning
capacity presents particular difficulties. As Dickson J. (as he then was) said,
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had? What
were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has
been lost: what was its value?

[101]    The relevant principles may be
briefly summarized. The standard of proof in relation to future events is
simple probability, not the balance of probabilities, and hypothetical events
are to be given weight according to their relative likelihood: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled
to compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring: Athey v.
Leonati, supra, at para. 27, Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the loss of
earning capacity may involve a comparison of what the plaintiff would probably
have earned but for the accident with what he will probably earn in his injured
condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task
of the Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248
(C.A.). Finally, since the course of future events is unknown, allowance must
be made for the contingency that the assumptions upon which the award is based
may prove to be wrong: Milina v. Bartsch, supra, at 79. In
adjusting for contingencies, the remarks of Dickson J. in Andrews v.
Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small[.][Underlining added in Reilly v. Lynn.]

[143]    
More recently, in Perren v. Lalari, 2010
BCCA 140, 3 B.C.L.R. (5th) 303, the court described the
two approaches that can be used to assess a future loss of earning capacity:

[12]      These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity. One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach
may be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated. The other approach is more appropriate where the loss, though
proven, is not measurable in a pecuniary way. An obvious example of the Brown
approach is a young person whose career path is uncertain. In my view, the
cases that follow do not alter these basic propositions I have mentioned. Nor
do I consider that these cases illustrate an inconsistency in the jurisprudence
on the question of proof of future loss of earning capacity.

[144]     Numerous considerations inform the assessment of Ms. Brewster’s
loss of earning capacity. She is a person who held numerous different jobs for
relatively short periods of time in the decade or so before she joined RSC. In
the five years before joining RSC, she earned an average of $22,000 per year.
She had, however, worked throughout most of this period. In addition, before
she lost her job at RSC, she had begun to look for similar marketing positions
with other companies.

[145]     Ms. Brewster struggled significantly with anxiety and
depression on a regular basis in the years prior to the Accident. The likelihood
that she would have had further periods of low mood or depression on a recurring
basis is very high. She accepts that she has had periods in her life when she
drank excessively. She has two young children that she will have to look after for
at least the next 15 years or so. She may well be a single parent in the
future. All of these considerations are relevant to her ability to work on a sustained
and full-time basis in the future and would be relevant quite apart from the
Accident.

[146]     There are further negative contingencies at play. Prior to the Accident,
and primarily when struggling with depression, Ms. Brewster had problems
with concentration. These symptoms did not, at earlier times, prevent her from
working. Post‑Accident, these symptoms, which appear to be primarily
related to depression, have become more acute. The evidence before me revealed
that such symptoms interfered with her ability to maintain the books for her
husband’s landscaping business to an extent that part of that work had to be
given to a third party accountant. Ms. Brewster said she struggled to keep
up with some of the recordkeeping associated with her role on a parent
committee for her daughter’s class. Mr. Nordin, the occupational
therapist, prepared a report which indicates that her difficulties with
“concentration and multi- tasking" would affect her employability.

[147]     I have said that Ms. Brewster has a history of working
diligently and consistently. Other than this and other generic positive
contingencies, such as the prospect of promotion, there is little direct
evidence before me which would support the existence of further positive
contingencies that would constitute anything more than mere speculation.
Certainly, the plaintiff did not direct me to any such positive contingencies.

[148]     Though I do not consider that this is a case where Ms. Brewster’s
loss of future earning capacity is amenable to being quantified in a measurable
way, the figures derived from some of the expert evidence can serve as useful
signposts.

[149]     The report prepared by Mr. Peever provides estimates of average
full-time earnings for British Columbia females in the occupational group
"Sales, marketing and advertising managers". That report indicates
that the present value of the earnings of a now 37-year-old woman, through to
the age of 60, with an average contingency for "risk and choice"
would yield approximately $1 million. The report used age 70 as an end point; I
consider retirement at age 60 more appropriate in Ms. Brewster’s
circumstances. The "risk and choice" adjustment in the report may
overstate the likelihood that Ms. Brewster would voluntarily be leaving
the workforce – there being no express evidence of any intention to do so. At
the same time, that contingency significantly understates the risks associated
with Ms. Brewster’s pre‑existing and ongoing depression and anxiety,
which I have found were not caused by the Accident.

[150]     Still further, the $83,000 figure used by Mr. Peever as a
starting salary in 2013 is, as I have said, significantly higher than what Ms. Brewster
earned at RSC in May 2008.

[151]     Mr. Peever’s report also contains a chart with estimated
average earnings for “business development officers, marketing researchers and
consultants”. That chart yields a present value for full-time work, adjusted
for "risk and choice" contingencies, to the age of 60 of
approximately $713,000. Recognizing the passage of time since the Accident, the
average salary for this group in 2013 of $57,000 aligns somewhat better with Ms. Brewster’s
actual pre-Accident income.

[152]     I have identified the range of opinions that pertain to the
likelihood of Ms. Brewster returning to work, as well as the extent to
which and capacity in which she is likely to do so. The consensus is that there
is a real and substantial possibility that the plaintiff’s condition may
improve and, with the appropriate steps, is likely to significantly improve. I
have explained why I consider that that is so. The opinions range from Ms. Brewster
being able to work approximately half-time to her being able to work full-time.
Counsel for the plaintiff’s written submissions use the premise that she is, or
will be, able to work on a half-time basis.

[153]     The prognoses which are relatively positive nevertheless recognize
that the plaintiff has suffered an impairment in her earning capacity. She will
require a period of months to become stronger before she can consider returning
to work. There is a very real risk that she will not be able to return to
full-time employment. In addition, it seems clear that she will be limited to
sedentary and light work. She is likely to have some difficulty sitting for any
extended period. She may have to start by doing short-term contract work out of
her home. It may take her some time to get reintegrated into the workforce. It
seems likely that when she re-enters the workforce, and potentially thereafter,
she will require an employer who is prepared to accommodate these limitations.
None of this will be easy or straightforward.

[154]     I do not accept any suggestion that the plaintiff is limited to
employment as a yoga instructor in the short term or otherwise. The various
scenarios that were put to me and that relied on any such limitation do not
have an adequate foundation and are inconsistent with the evidence I have
referred to.

[155]     Having regard to the foregoing considerations, I consider that an
award of $175,000 fairly and reasonably compensates the plaintiff for her loss
of earning capacity. This figure recognizes the contingencies I have identified
and roughly equates to the plaintiff’s loss on the assumption that she is able
to work somewhere between a half‑time and a full‑time basis in the
future.

Costs of Future Care

[156]     The parties agree on the relevant legal principles that govern this
head of loss.

[157]     The test
for determining the appropriate award for the costs of future care is an objective
one based on medical evidence. For an award of future care:  1) there must be a
medical justification for claims for costs of future care; and 2) the claims
must be reasonable: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 at 84 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at paras. 21-22,
[2002] 1 S.C.R. 205, while addressing the assessment of costs of future care, Chief
Justice McLachlin confirmed that courts rely on "evidence as to what care
is likely to be in the injured person’s best interest", and that the
measure of such care is "objective, based on the evidence". That same
test was recently reaffirmed in Shapiro v. Dailey, 2012 BCCA 128 at para. 51,
31 B.C.L.R. (5th) 78.

[158]    
The following additional legal principles govern an award for future
care costs:

a)       Awards
for costs of future care must be reasonable, both in the sense of being
medically required and in the sense of being costs that, on the evidence, the
plaintiff will be likely to incur; see Loeppky v. Insurance
Corporation of British Columbia, 2012 BCSC 7 at para.109.

b)       The
weight to be given to an opinion on future care will depend on the extent to
which recommendations for items like psychological counselling and
physiotherapy are supported by the evidence of experts within the relevant
field of expertise: see, for example, Frers v. De
Moulin, 2002
BCSC 408 at para. 191, 1 B.C.L.R. (4th) 131; and O’Connell v.
Yung, 2010 BCSC 1764 at para. 98, costs of
future care award varied on appeal 2012 BCCA 57; the trial judge erred in
concluding that “future care costs are payable whether or not they may be
incurred in the future” (para. 68).

c)       An award of future care costs should be reasonable
and the award must be moderate and fair to both parties; see Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.
229 at 241 – 242.

d)       Common sense should inform claims for the costs of
future care, however much they may be recommended by experts in the field; see Penner
v. Insurance Corporation of British Columbia, 2011
BCCA 135 at para. 13, 17 B.C.L.R. (5th)
244.

e)       In considering any particular item of future care,
the test is whether a reasonable person of ample means would incur the expense;
see Brennan v. Singh, 1999 CanLII
6932 at para. 78, [1999] B.C.J. No. 520 (S.C.).

[159]     There are numerous decisions of this court where, absent objective
evidence of what future care items might cost, the court has declined to make
any award, see McGough v. Keuhn, [1998] B.C.J. No. 1361 at para. 42
(S.C.); Cumpstone v. Johnson, 2012 BCSC 386 at para. 109, 7
C.C.L.I. (5th) 292; and Chan v. Kao, 2009 BCSC 626 at para. 85.

[160]     Notwithstanding the foregoing authorities, there are also some cases
where, on being satisfied that some item was necessary for the future care of
the plaintiff, the court was willing to "ball park" that figure or "do
the best it can" see, e.g. Chaban v. Chaban, 2009 BCSC 87 at paras. 65-73;
and, Loewen v. Bernardi (1994), 45 B.C.A.C. 190, 93 B.C.L.R. (2d) 242 at
paras. 24 – 27.

[161]     In this case, because of the absence of adequate evidence, aspects
of the plaintiff’s claim under this head of loss would be in jeopardy unless I “ball
park” the figure.

[162]     The parties agreed that there were very significant difficulties
with the cost of future care report of Ms. Berry, an expert called by the
plaintiff. Counsel for the plaintiff accepts that the report is
"flawed" and that there is simply no evidence to support many of Ms. Berry’s
recommendations. The defendant described the report as being of "extremely
limited assistance".

[163]     The deficiencies in the report are many and varied. There is limited
or no medical basis for much of what is proposed. Some of Ms. Berry’s
recommendations are actually at odds with the medical evidence. Other aspects
of her recommendations markedly exceed what the medical evidence indicates is
required. Ms. Berry seems to have a perception of the plaintiff’s present
and future level of impairment that is not in keeping with the medical
evidence. Many of Ms. Berry’s recommendations are not time limited and are
ostensibly required indefinitely with no adequate basis for any such assertion.
Other recommendations are simply not thoughtful or practical.

[164]     I consider Ms. Berry’s report to be distressingly inadequate. I
say distressingly because it ought to be a cornerstone of the plaintiff’s case.

[165]     Ms. Berry’s recommendations were used by Mr. Peever to
calculate present values for particular future care items.

[166]     I intend to deal with the items that are being claimed in the order
that they appear in Mr. Peever’s report.

a)       Medication

[167]     The plaintiff claims almost $75,000 for various medications or health
supplements. Counsel for the plaintiff abandoned the claim for "magnesium
supplements" and accepts that there is no objective medical evidence
before the court to address the need for Omega Trident SAP, vitamin D, or Mila.
Ms. Berry described Mila as a blend of seeds, proteins, Omega 3 and fibers
to assist with irritable bowel syndrome which, in turn, is often associated
with chronic pain.

[168]     There is a claim for Wellbutrin, which Dr. Russell described as
a medication for depression that also helps with a person’s energy. Based on
the findings I have made, there is no basis for the plaintiff to advance a
claim for this medication.

[169]     Cymbalta is also a medication that is primarily used for depression.
Both Dr. Russell and Dr. Ong testified, however, that it had
independent benefits for persons suffering from chronic pain or fibromyalgia.
The claim which is advanced for this medication, however, presupposes that Ms. Brewster
would require her existing dose of this medication for the rest of her life. There
is no evidence which supports any such requirement. I have reduced the cost for
Cymbalta by approximately half based on the medical evidence and my finding
that Ms. Brewster’s condition is expected to significantly improve going
into the future.

[170]     I would award the plaintiff $20,000 for this subcategory of future
care expense.

b)       Therapeutic Modalities

[171]     Ms. Berry’s report recommends various modalities, none of which
is expressly supported by other evidence, and whose combined cost is almost
$80,000.

[172]     Ms. Berry has proposed that Ms. Brewster requires eight
different forms of specialized equipment or items, for example, kneeling stools
to help Ms. Brewster bathe her son and ergonomic chairs. I consider that
the evidence of the plaintiff’s difficulties broadly supports the
reasonableness of such items and that the need for such items falls within Ms. Berry’s
expertise. The plaintiff accepts that other items are inappropriate. The need
for a magnetic white board, for example, is unrelated to the Accident. I consider
that a figure of $10,000 is appropriate for all the items the plaintiff
requires.

[173]     Ms. Berry has also proposed that the plaintiff have access to
almost 130 hours of occupational therapy over two years. Though the breadth of
the program being described seems excessive, I do consider that some assistance
in guiding Ms. Brewster’s future activities would be useful. I would award
her $5,000 for this item.

[174]     Ms. Berry has also recommended both chiropractic and massage therapy
treatments on an ongoing basis for the rest of Ms. Brewster’s life. She
recommends the latter form of treatment on a twice per month basis. The
evidence that I have already referred to does not support any such
recommendation other than on an exceptional basis to deal with periodic flare-ups
and pain.

[175]     The medical evidence not only supports but emphasizes the critical
need for Ms. Brewster to have access to a kinesiologist and a physiotherapist
for some period of time — matters that Ms. Berry fails to address. The
evidence suggests that a three to six month strengthening and conditioning
regime is necessary. I have available some of the costs Ms. Brewster has
paid for such services in the past and I consider $10,000 appropriate for such
a program, as well as for periodic massage therapy treatments.

[176]     I would thus award Ms. Brewster a total of $25,000 for this
subcategory of loss.

c)       Support Services

[177]     Ms. Berry has recommended that the plaintiff be provided with
four distinct categories of support services whose cumulative cost, on a
present value basis, is approximately $170,000.

[178]     The first subcategory is "Homemaking" which, in turn, is
assessed with reference to two time periods. Ms. Berry proposes that the
plaintiff have access to third-party help around the home for six hours a week
for the next 15 years or until her younger child is 19. Thereafter, she is to
have three hours a week of such assistance until she is 80 years old. Such
services range from assistance with "pre‑washing and cutting
produce", and "dusting" to heavier tasks such as vacuuming and
laundry.

[179]     Dr. Russell had proposed that the plaintiff have three hours of
such assistance every two weeks in order to assist with her recovery. It appears
from her evidence that the plaintiff would require less assistance as her condition
improves. Indeed, Dr. Russell has opined that the plaintiff should have
"support for any heavy housework for the first few weeks" of any
kinesiology program that she would undertake.

[180]     There also appears to be no consideration in Ms. Berry’s
recommendation of the plaintiff’s two children participating, in the most
natural of ways, in activities or chores around the home as they get older. I
consider that a figure of $7,500 would be consistent with both Dr. Russell’s
earlier recommendation and with Ms. Brewster’s prognosis.

[181]     The second subcategory pertains to child care. Ms. Berry
proposes that the plaintiff be provided with two hours of childcare everyday
for the next seven years or until her youngest child is 11 years old. These
services are said to be required to get her children ready for school and to
help with meals. There is no medical evidence which indicates that the plaintiff
will require such ongoing assistance. Dr. Russell’s evidence did address
the plaintiff’s need for child care while she attends a carefully graduated
conditioning program. I also consider that some such child care may be required
thereafter until her son is in school on a full-time basis so that she can both
re-enter the workforce and maintain her fitness regime. I consider the figure
of $7,500, using the unit figures developed by Ms. Berry, achieves this
object. That figure is roughly based on Ms. Brewster requiring four hours
of childcare three times a week for the next six months and two hours a day for
the following 18 months.

[182]     The third subcategory is for moving expenses. Ms. Berry
proposes that the plaintiff be provided with two days of such assistance every
eight years until she’s 80 years old. I expect that Ms. Brewster would have
required moving assistance well before she turned 80 even absent the Accident.
I do accept that the Accident has impacted the plaintiff’s ability to move
certain items. I would award $1,500 on account of this expense.

[183]     Accordingly, I would award Ms. Brewster $16,500 for this
category of loss.

d)       Health

[184]     Ms. Berry recommends that the plaintiff have access to both a
gym and pool membership as well as to restorative yoga classes until she’s 80.
The medical evidence consistently emphasizes the importance of Ms. Brewster
maintaining her conditioning. Dr. Ong testified that yoga, walking and
pool exercises were recommended to the plaintiff at the pain clinic program she
attended. Dr. Russell has also recommended that the plaintiff continue
with swimming and yoga. The amounts being claimed seem to merge the gym and
pool membership. The annual fee being sought is reasonable, though it seems
unlikely that Ms. Brewster would continue with all such form of activities
until she is 80 years old. I have also reduced the amount being claimed for
yoga expenses to recognize that, prior to the Accident, the plaintiff already
participated in yoga to address her stress and mood difficulties. I would award
the plaintiff $30,000 on account of this particular category of expense.

[185]     Based on the foregoing assessment, I would award the plaintiff a total
of $91,500.00 for the costs of her future care.

Summary

[186]     I have awarded the plaintiff the following sums:

 a)  Non-Pecuniary Loss                              $
63,000.00

 b)  Past Wage Loss                                         75,000.00

 c)  Future Wage Loss                                    175,000.00

 d)  Cost of future care                                     91,500.00

 e)  Special Damages   
14,015.60

 Total:                                 $
418,515.60

[187]     I am satisfied that this figure of $418,515.60 fairly and reasonably
compensates the plaintiff for her loss.

[188]    
Counsel for the parties agreed that they would
deal with the tax and other adjustments to my award that may be necessary. If
they encounter any difficulty with this, I am available to assist them further.

“Voith J.”