IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130507

Docket: M110157

Registry:
Vancouver

Between:

Rachael Froese
Zamperini

Plaintiff

And

Norman Da Costa
and Danica Mladenovic Da Costa

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff was injured in a motor vehicle accident on January 15,
2009, when a 2005 Chevrolet Cavalier owned by Norman Da Costa and operated by
Danica Da Costa ran a stop sign and struck her 2008 Kia Rondo on the driver’s
side door. Liability for the collision is admitted by the defendants. No
contributory negligence is alleged. The trial proceeded on the assessment of
damages.

II

[2]            
The plaintiff was born on March 14, 1976, and is 37 years old. She
graduated from Simon Fraser University in 2000 with an Arts degree in French and
History. She also acquired a Diploma in Communications in 2007.

[3]            
The plaintiff married Tomaso Zamperini in October 2004. She is the
mother of two children, Damien, born July 17, 2006, and Anna, born June 3,
2010. Mr. Zamperini is a native of Italy who met the plaintiff on a
student exchange in Grenoble, France. She moved to Italy with him in about 2000
and taught English while he finished his degree. They returned to Canada in
2001 and the plaintiff started working in the field of communications, while
Mr. Zamperini joined Price Waterhouse Cooper as an accountant.

[4]            
The plaintiff’s first employment was with the Heart and Stroke
Foundation as a communications coordinator. In September of 2004, she went to
work for Genome British Columbia (“Genome”), a funding agency for life-sciences
projects. The work was similar to what she had done at the Heart and Stroke
Foundation. It entails planning and writing public relations and media event
materials, and involves meetings and considerable computer work under the
pressure of deadlines. The plaintiff described the work as “intense” and
requiring the person doing the job to be “fully present.”

[5]            
In July of 2006, after the birth of her son, Damien, the plaintiff took
a year of maternity leave.

[6]            
In mid 2007, she returned to Genome part-time, but found it awkward to
balance work with a young child to care for, and she resigned her position. She
put some energy into exploring a wine importing business, but it did not
generate an appreciable amount of income. She also started working on a
contract basis for Genome, the Royal Bank, and for some other bio-technology
companies. She developed a routine of working three days a week at these
contracts while her son attended daycare. She said it was essential that she be
able to devote uninterrupted time to her work and placing her son in daycare enabled
her to do that. She thought her opportunities were expanding when the accident
occurred, and that she was developing a personal niche in the communications
industry.

[7]            
The plaintiff’s future plans at that time were to continue work
part-time and to have a second child. She did not plan to work full-time until
the children were in school.

III

[8]            
On the morning of the accident, the plaintiff had dropped her son off at
daycare and was returning home by her usual route along Gilmore Street in
Burnaby. The defendant ran a stop sign at Georgia Street, causing the plaintiff
to swerve, but her vehicle was struck and driven sideways “fast and hard”. She
felt an immediate “pop” in her neck and developed a headache at the scene, running
from the base of her skull up to the top of her head. Her vehicle was driveable
and was new enough that it was worth repairing, despite significant damage.

[9]            
The plaintiff was in significant pain after she got home, and felt
stiffness and pain in her upper neck and shoulders. She needed help to dress
and could not drive. She said the pain got “really intense, really fast”. She
saw a locum for her family physician, who sent her for x-rays. She then
arranged to see Dr. Kagan, whose office was closer to her home. She also took
massage treatments on her own initiative, without seeking a doctor’s referral.

[10]        
At its worst, in the weeks immediately after the accident, the plaintiff
was having trouble moving her head, dressing, or getting in and out of a car.
She could not do much housework or cook. She was able to take calls but did
very little work. She says the neck pain was very acute for about two weeks and
then began to abate slowly. The headaches were acute for over a month. Dr.
Kagan recommended physiotherapy.

[11]        
The plaintiff says she found that as she got out of the most acute phase
of her pain, she had difficulty sitting or feeling comfortable in chairs or in
bed. She had pain in her lower back, hips and tailbone.

[12]        
In the months following the accident, the plaintiff took 25 massage
treatments (between January 21, 2009 and July 18, 2011), 25 chiropractic
treatments (between April 27, 209 and September 2009), and 9 physiotherapy
treatments (between February 11, 2009 and April 4, 2009). She also took a twice
weekly course of exercise kinesiology at Karp Kinesiology starting in April or
May of 2009 and again in October of 2009.

[13]        
The plaintiff’s complaints of pain and suffering and restriction of her
activities continue to the present time. She finds sitting for prolonged
periods at a computer hard on her lower back and neck. She says she gets
uncomfortable after about 15 minutes. She also has difficulty lifting weights
(including her children) and finds that any sustained position will cause
problems. She says she still experiences sleep interruptions. She found her
second pregnancy more difficult than the first due to the pain in her back and
neck. She continued with treatments and massage therapy at the BC Women’s
Hospital. Following her second pregnancy she feels she is back to the levels of
pain she was experiencing before.

[14]        
In August of 2011, the plaintiff moved to Verona, Italy where her husband
has taken a two-year secondment with his accounting firm. This was an
opportunity to be in frequent contact with his family. During this time, the
plaintiff has been teaching English. She finds that teaching is less stressful
than computer work because she can stand and move around. The family expects to
return to British Columbia in the summer of 2013.

[15]        
The plaintiff says the pain due to her injuries has not changed much in
the past two years. She says the back problems have not resolved and still
require attention. She is still seeing a physiotherapist, doing pilates, and
swimming to help alleviate her symptoms.

[16]        
Before the accident, the plaintiff was active and athletic and involved in
dance, tennis, running, swimming and skiing. Rhian Walker, a friend who has
known her since the age of 12, described the plaintiff as someone who did
anything physical well. Her mother testified to similar effect and described
her as having no physical difficulties before the accident. Another friend,
Laura Sloan, said the same things.

[17]        
The plaintiff had had previous injuries. She said that she had suffered
injuries in a motor vehicle accident when she was 16, and one in her 20’s, in
both of which she suffered neck pain. She was also involved in two further
accidents in 2007 and 2008, for which she was responsible. She sought massage
therapy after the 2008 accident and had had two massage treatments shortly
before she was involved in the latest accident. She says that that pain from
those injuries did not interfere with her work or her activities.

[18]        
The plaintiff’s family doctor provided a report and attended the trial
for cross-examination. Dr. Kagan summarized what she had been told about the
accident and what she noted at her first examination.

10.    At the time of the
accident Ms Zamperini felt an immediate popping sensation in her neck at the
base of her skull in the left side of her neck. The pain spread into her upper
back, neck and head, and caused a headache that had been present for 2 weeks at
the time that I initially examined her. My initial exam was on Feb 3 2009. My
initial exam revealed tenderness to palpation in the cervical, trapezius and
rhomboid areas, with muscle spasm in the cervical and trapezius areas, with no
tenderness in the lumbar or lower thoracic areas. She had pain with movement of
her neck and upper back but good range of motion. She was diagnosed with soft
tissue injury neck and back.

[19]        
Her first note of lumbar pain is on April 15, 2009:

11.    On April 15, 2009 Ms Zamperini stated she had been
having increasing lumbar pain and was working with a chiropractor. She
requested lumbar spine and hip x-rays, which were normal. I have no report from
her chiropractor. She was having trouble sleeping due to the pain and I placed
her on gabapentin.

12.    On April 22, 2009 Ms
Zamperini was complaining of increasing lumbar back pain with radiation down
the legs. She was sent for a lumbar CT scan which was normal. Her examination
on that date revealed tenderness to palpation of her neck, upper and lower
back, with normal movement and no symptoms on straight leg raise.

[20]        
The plaintiff’s progress thereafter was documented as follows:

13.    On Sept 21, 2009 Ms Zamperini complained
of ongoing neck, upper and lower back pain as well as pain in the hips. She
felt the left hip was getting stuck, and was attending chiropractic and
kinesiology treatment.

14.    On March 31, 2010 Ms Zamperini was
seen in the office with increasing back pain during pregnancy. She stated she
was attending the BC Women’s back pain centre for treatment. I have no records
from the BC Women’s Centre. She stated the increasing back pain was causing her
difficulties and that she was having to cut back on work. She planned to be off
work in April, due to her back pain and for her maternity leave.

15.    On Jan, 12, 2011 I completed a CL19-9
form for Ms. Zamperini. During that visit she stated she had ongoing headache,
neck pain, back pain and hip pain. Objectively she had tenderness ongoing of
her cervical and lumbar spine, pain and limitation of movement of her cervical
spine, and pain with movement of her thoracic and lumbar spine. She had been
using medications of Tylenol 3, gabapentin and ativan throughout her recovery.
She had been attending physiotherapy, chiropractic, massage and kinesiology at
various times in her treatment.

16.    Ms Zamperini was unable to work the
same number of work hours as a free lance writer after the accident. She had
returned to work within 2 weeks after the accident, but required more frequent
breaks. She was unable to do the same number of hours at work and had
significant pain in her upper back, neck, and low back when working.

17.    After her motor vehicle accident Ms
Zamperini was unable to do her housework due to her injuries and required the
aid of a housekeeper.

18.    After her accident Ms Zamperini was
unable to participate in her previous recreational activities such as running
and going to the gym.

19.    Ms
Zamperini was seen many times at this office with ongoing symptoms of neck and
back pain secondary to the injuries she sustained in her motor vehicle accident.
Her last visit at this office was July 27, 2011. At that time she stated she
was moving out of the country. At that visit she complained of an ongoing
pinched feeling in her neck and back since the accident. She had a normal
objective exam.

[21]        
Dr. Kagan noted that the plaintiff told her she had been injured in a
previous accident but did not have any records or notes from other
practitioners about it. She also noted that she had limited her work hours and
had hired a housekeeper. These adaptations were at the plaintiff’s initiative,
not on the doctor’s orders.

[22]        
Dr. Kagan summarized her opinion as follows

In my opinion Ms Zamperini
suffered from soft tissue injuries of her neck and back. As long as 2 years
after the accident she continued to experience symptoms and limitations
secondary to her injuries. I do not anticipate degenerative changes secondary
to her soft tissue injuries. I acknowledge the possibility that her soft tissue
injuries will require ongoing intermittent treatment with treatment modalities
such as medication, chiropractic or massage treatment etc., depending on her
symptoms. I do not know if her ongoing symptoms secondary to the soft tissues
injuries she sustained in her motor vehicle accident will affect her employment
currently and in the future.

[23]        
The plaintiff also saw Dr. John le Nobel who was qualified to give
opinion evidence in the field of physical medicine and rehabilitation. He
provided a report dated June 28, 2011, and was cross-examined on it.

[24]        
Dr. le Nobel gave his report in the form of a series of answers to
questions. On the link between the accident and the plaintiff’s complaints of
injuries, he wrote:

1)    Did Ms.
Zamperini suffer injuries as a result of the motor vehicle accident January 15,
2009.

Answer: Yes. 
Immediate injuries were to her neck and upper back. The symptoms in her neck
and upper back have continued and are by now chronic. She has low back pain,
the onset of which appears to have been six or so weeks following the motor
vehicle collision. Assuming that she did not experience further physical injury
during the interval between the motor vehicle collision and the onset of low
back pain, then the motor vehicle collision January 15. 2009 has contributed to
her chronic low back pain since that time. Rachael Zamperini’s inability to
continue with her pre-accident fitness activities subsequent to the motor
vehicle collision may in addition have rendered her more vulnerable to onset of
low back pain in the course of day to day activities such as childcare and
household tasks subsequent to the motor vehicle collision.

[25]        
He offered a diagnosis:

2)    What is my diagnosis of Ms. Zamperini’s injuries.

Answer: It is now over two years and five
months since the January 15, 2009 motor vehicle collision. Based on the time
elapsed since being injured I diagnose Rachael Zamperini’s pain as chronic. (Chronic
pain is pain which persists for longer than tissue healing is felt to require.
Tissue healing is generally felt to occur within 10 to 12 months of injury).

I diagnose her with chronic myofascial pain.
(Myofascial pain is pain understood to be generated in injured
musculoligamentous soft and connective tissue structures. These structures are
at times deep to the body surface and not readily evaluated with techniques
such as inspection and palpation. Myofascial pain is felt to be a cause of some
cases of chronic pain).

I diagnose
deconditioning based on Rachael Zamperini’s account of weight gain prior to her
pregnancy, as well as her assessment today with tightness of the hip flexors
and reduced activity tolerance. Her deconditioning presently is multifactorial
and contributed to by reduced activity level during pregnancy. That said, she
did participate in exercise classes during her pregnancy. Absent the motor
vehicle collision January 15, 2009 her degree of deconditioning would likely be
less were it just on the basis of the pregnancy.

[26]        
He addressed pre-existing conditions as follows:

5)    Does Ms. Zamperini suffer from any pre-existing
conditions relative to the injuries she sustained in the accident.

Answer: Rachael Zamperini had pre-existing
neck and upper back pain. She did not have low back pain, from her account
today and from review of the pre-accident documentation from the massage
therapist. The pre-accident episodes of neck and upper back pain likely rendered
her neck and upper back at increased vulnerability to more severe effects from
the January 15, 2009 motor vehicle collision.

Rachael
Zamperini has very flexible limb joints, particularly her shoulders. She
indicates today having been told of this flexibility by her massage therapist.
People with intrinsic increased flexibility are at increased risk for more
severe consequences from exposure to motor vehicle trauma.

[27]        
He commented on the future:

8)    What is your opinion as to the likelihood of any future
disabilities or future degenerative changes, as well as any future treatment
and/or operative procedures.

Answer: Barring
some as yet unrealized improvement, Rachael Zamperini is likely to have
symptoms and limitations over the next several years and possibly longer. A
further review once these steps have been taken could be of help in providing a
more complete prognosis if such is necessary for today’s purposes.

[28]        
Dr. le Nobel did comment, as well, that “some improvement is reasonably
projected.”

IV

[29]        
Counsel for the defendants submits that the plaintiff should have told
her doctors that she had sought massage therapy twice in the three days before
the accident, and that she should have been more explicit with Dr. le Nobel
about the number of previous accidents and their effects. She also notes that
neither doctor considered the plaintiff’s condition serious enough that they
were prepared to recommend that she stop working, or reduce her hours, or
retrain.

[30]        
Counsel for the defendants submits that the plaintiff’s complaints are
aggravations of her pre-existing complaints and that, in any event, the ongoing
symptoms are mild and do not interfere with her functioning or enjoyment of
life.

[31]        
The plaintiff’s income tax returns show the following:

[32]        
The plaintiff’s evidence respecting her income is that she was in the
process of building up her consulting business when the accident occurred. She
had a series of contracts with her former employer Genome, which authorized
work up to a certain ceiling. Comparing the contracts to the plaintiff’s
billings, it appears that she fell short of the maximum hours combined by about
$13,196 at $65 per hour. She claims that this represents a loss and that she
lost contract work she did not bid on, worth perhaps $30,000, because her pain
prevented her from working as hard as she could before the accident.

[33]        
The defendants submit that no loss of past income has been shown. They
suggest that without corroborative evidence from Genome, the court should draw
an adverse inference. The defendants also note that the plaintiff signed one
contract after the accident for the period from April 1, 2009 – September 1,
2009 and came within $100 of performing to the contracted limit, and that she
signed another on November 2, 2009 without suggesting she might not be able to
complete it.

V

[34]        
The plaintiff seeks compensation for future loss of opportunity based on
the theory of loss of a capital asset. This is predicated on a finding that she
is likely unable to carry on in the communications field specifically because
of her chronic low back pain. The plaintiff’s present plans are to retrain to
become a teacher. She estimates the cost of that retraining to be $13,000 to
obtain a teacher’s certificate and about $8,000 to obtain a Master’s degree.
She seeks compensation for the amounts which she expects to spend when her
daughter Anna reaches the age of five in 2015.

[35]        
There is no reliable evidence that remaining in the communications field
would have generated any particular range of income or that the prospect of
higher earnings was significant. On the basis of the evidence available it
appears that once the plaintiff retrains as a teacher, she will be able to
achieve a comparable level of income in teaching. The analysis of future loss,
if any, must be on the basis that of the range of physical abilities the
plaintiff had pre-accident some percentage that may affect her range of
employment prospects has been lost to her. In other words, it has not been
demonstrated that the plaintiff is precluded from using her highest and best
skills to achieve her best income earning potential. The evidence does not support
an expectation of lost income higher than she will be able to earn, in any
event, as a teacher.

[36]        
The defence submits that the claim for future loss of income earning
capacity does not survive the test set out in Perren v. Lalari, 2010
BCCA 140, per Madam Justice Garson at para. 32:

[32]      A
plaintiff must always prove, as was noted by Donald J.A. in Steward
[Steward v. Berezan, 2007 BCCA 150], by Bauman
J. in Chang [Chang v. Feng, 2008 BCSC 49], and by Tysoe J.A. in Romanchych [Romanchych v. Vallianatos,
2010 BCCA 20], that there is a real and substantial possibility of a future
event leading to an income loss.  If the plaintiff discharges that burden
of proof, then depending upon the facts of the case, the plaintiff may prove
the quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok [Steenblok v. Funk (1990), 46
B.C.L.R. (2d) 133 (C.A.)], or a capital asset approach, as in Brown
[Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353]. [emphasis in
original.]

[37]        
The defence submits that the plaintiff has not proven any real and
substantial possibility of a future event leading to an income loss.
Notwithstanding the degree to which the plaintiff said she must pace herself
and take more breaks than she used to do, the defence submits that she remains
capable of working full time as a consultant. The defence notes that the
plaintiff has not been told to retrain and has not been told that she will not
be able to work full time in the future, and submits that the plaintiff’s
situation is similar to that of the plaintiff in Mayenburg v. Lu, 2009
BCSC 1308. There, Myers J. dealt with a claim for future loss as an accountant
based on somewhat similar evidence:

[54]     The real question, therefore, is whether Ms.
Mayenburg’s ability to earn income as an accountant or similar job is
impaired.  I do not think that is the case.

[55]      Ms. Dobbin’s finding with respect to sitting was
based on testing Ms. Mayenburg in a sitting position over the course of
two hours and 25 minutes in a non-supportive chair.  Furthermore, Ms.
Mayenburg was able to sit in a classroom for two hour lectures.

[56]      In the absence of evidence to the contrary I think
I can assume – whether as a matter of judicial notice or common sense – that an
accountant or similar professional is not tied to his or her seat for any fixed
duration.  Ms. Mayenburg will be free to get up and stretch as she
wishes.  Similarly, I do not think that a prospective accounting firm or
similar employer would balk at hiring Ms. Mayenburg if she told them that she would
have to get up and stretch periodically.

[57]      Just as Ms. Mayenburg was able to complete her
studies successfully, there is no reason to think that her injuries will impede
her ability to be a successful accountant.  She might suffer some
discomfort while performing her job, as she does when hiking and running, but
that is what the general damages are meant to compensate.

[58]      These comments apply
with greater force to prospective self-employment as an accountant or similar
professional.

VI

[38]        
The plaintiff claims for the cost of future care and for loss of
housekeeping capacity. This is based on projecting the cost of swimming and
pilates sessions in 2012 (some $956.98) into the future. An allowance of some
$20,000 is suggested. The plaintiff also claims for loss of housekeeping
capacity at an estimated yearly cost of around $3,000. An allowance of $25,000
is suggested.

[39]        
The defence submits that a distinction must be made between claims which
provide only solace, which properly fall under general damages for pain and
suffering and loss of enjoyment of life, and those which are medically
necessary, as set out in Milina v. Bartasch (1985), 49 B.C.L.R. (2d) 33
at para. 201:

201   … I must reject the plaintiff’s
submission that damages for cost of future care should take into account the
cost of amenities which serve the sole function of making the plaintiff’s life
more bearable or enjoyable. The award for cost of care should reflect what the
evidence establishes is reasonably necessary to preserve the plaintiff’s health.

[40]        
The defence position is that nothing should be allowed for either future
care or housekeeping as neither is “reasonably necessary” for her future care
but are simply “amenities”.

[41]        
The plaintiff claims special damages of $10,123.89, $2,160 of which have
been paid by insurance, for an outstanding balance of $7,963.89. The defendants
submit that costs of present treatment, that is, for chiropractic, massage and
physio treatments, until the end of 2009 are reasonable. Inasmuch as Dr. Kagan
reported that one of the plaintiff’s activities before the accident was “going
to the gym”, the defence submits that claims for a gym pass reflect the
resumption of previous activities and not a cost necessitated by the injuries
suffered in the accident.

[42]        
The defence submits that the housekeeping claims are unreasonable,
largely on the basis that the doctors, while noting that the plaintiff reported
difficulties with housework, did not say she needed a housekeeper. The
defence describes housekeeping assistance as a “luxury” and submits that
housekeeping claims to date and in the future ought not to be allowed.

VII

[43]        
This case, as with many others of its kind, present the court with
complaints of pain and suffering for soft tissue injuries that are largely
unverifiable, objectively, and that depend on the credibility of the plaintiff
herself and the reasonableness of the medical and other surrounding evidence.

[44]        
I accept that the plaintiff was sincere and honest and was doing her
best to be accurate about her condition. I accept the evidence of her
supporting witnesses as well. It is not unusual for the courts to deal with
subjective reports of pain. In such cases it is appropriate to remember the caution
given by McEachern C.J.S.C. (as he then was) in Price v. Kostryba
(1982), 70 B.C.L.R. 397, where he observed:

1      The assessment of damages in a moderate or moderately
severe whiplash injury is always difficult because plaintiffs, as in this case,
are usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

2      In this endeavour, we attempt to apply legal
principles; otherwise every damage award would stand alone in isolation from
other cases, depending largely upon how each individual plaintiff reacts and
responds to his injuries and how he or she describes them. This question was discussed
in Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229 at 243-44, where
Dickson J., speaking for the court, said:

The focus should be on the injuries of the innocent party.
Fairness to the other party is achieved by assuring that the claims raised
against him are legitimate and justifiable.

[45]        
In assessing damages in this case there are several factors to consider.
There is first of all, the plaintiff’s pre-accident experience of pain and how
that relates to the accident that is the subject of this claim. I do not think
the evidence supports the defendants’ suggestion that the accident in January
of 2009 is properly characterized as an aggravation of a previous condition or
injury. There is no question that the January 2009 accident involved a
significant impact and that the plaintiff’s immediate complaints were
characteristic of the kind of injuries that might have been expected. I think
that Dr. le Nobel’s observation that the plaintiff’s neck and back were more
susceptible as a result of the earlier injuries, and that her flexibility may,
to some degree, account for the fact that she suffers from the injuries longer
that might have been expected. I think it appropriate to recognize that the
plaintiff was not entirely pain free but was still undergoing some therapy for
neck pain when the accident occurred.

[46]        
The plaintiff’s complaint of back pain does not appear to have been a
problem right after the accident but to have arisen some weeks later. The
defence submits that this cannot be logically connected to the injuries
suffered in the accident. Dr. le Nobel addresses this in his report
(see para. 24, herein). He accepted that the late onset of the low back pain
was likely connected to the motor vehicle accident in the absence of any other
intermediate cause. I accept this, not as an opinion on causation outside Dr.
le Nobel’s expertise, but as the statement of a physical and rehabilitation
medical specialist that such a complaint is not something he would exclude on
the basis of his experience. I accept that it is a consequence of the motor
vehicle accident since no other intervening cause has been identified.

[47]        
I accept that the plaintiff’s ability to work at a desk job was
inhibited by her lower back pain. The plaintiff’s description of the kind of
work she had to do required intense concentration and working to deadlines.
This is not quite the situation described in Mayenburg. Beyond a certain
point, however, and certainly by the time the family moved to Italy it is difficult
to discern actual disability, although the plaintiff continues to suffer some
injury-related aches and pain.

VIII

[48]        
The plaintiff’s claims can, in my view, be largely addressed by an
adequate assessment of damages for pain and suffering and loss of enjoyment of
life.

[49]        
There is not enough evidence to allow me to infer that the plaintiff was
likely to make significantly larger sums of money in the future working in
public relations than she may as a teacher. I do not have specific information about
what teachers make but cannot assume that it is less than the plaintiff was
making in her consulting work, given the amounts she was earning. I think it
possible that, quite apart from the accident, the plaintiff may have gravitated
toward teaching in any event. She has discovered that she likes it. She is
close to her mother who is a very experienced and still active teacher.

[50]        
As I have already indicated, I found the plaintiff and her supporting
witnesses credible and accept that she has suffered a significant soft tissue
injury. I think her damages, not surprisingly, fall between the ranges cited by
counsel. The defence has suggested a range of $20,000 – $35,000, while the
plaintiff’s counsel submits that $70,000 is appropriate.

[51]        
I accept that in this case, the effects of the injuries have been
prolonged. I think she will continue to suffer to a degree that is irritating,
but not disabling, for some time to come. I accept that improvement can be
expected. Taking account of these factors, I assess damages for pain and
suffering and loss of enjoyment of life at $65,000.

[52]        
I do not think a past loss of income was established on the evidence.
More would have had to be shown above the nature of the contracts the plaintiff
was working on. I do not think it can be assumed that a “shortfall” in the
amounts allowed and the amounts billed leads necessarily to an inference of
loss. Nor do I think the plaintiff has raised more than a speculative prospect concerning
contracts that might have been secured but for the injuries suffered in the
accident. Accordingly, I find that no past income loss has been established.

[53]        
I accept that the plaintiff’s injuries have left her more vulnerable to
injury and have made it doubtful that she could meet the demands of the more
stressful forms of sedentary employment such as her work in the communications
industry. Whether, given her other options, she will ever find this limitation
a cause of loss is difficult to assess. I do, however, accept that she has lost
some of her full range of physical abilities, and that given the vagaries of
life and the kind of changes that may occur in the way work is done in the
future, there is some possibility that her earning capacity may be affected. In
weighing the effect, which could be significant, against the likelihood that
the plaintiff will someday need that lost capacity, which I think a little more
remote, I assess future loss of income earning capacity at $60,000.

[54]        
I accept that some of the special damages claimed were incurred as a
result of the injuries the plaintiff has suffered. I allow the therapeutic
claims, but consider the claims for a gym pass, for yoga, for the swimming
course and physio/pilates in Verona to be the sort of things the plaintiff
might otherwise have done just to stay in shape. The cleaning services in
Verona appear high relative to the degree of actual disability supported by the
evidence. I think some occasional housekeeping may have been required but not
more than about $1,000 per year. I allow $2,000 rather than the $4,824 claimed.
I am not sure I can reconcile the figures I have been given. I will simply say
that with reference to the table produced by the plaintiff, I disallow items 5,
6, 10, 11 and 12 (to the extent I have suggested).

[55]        
I make no allowance for the cost of future care. I will allow a one-time
payment of $3,000 for occasional household assistance in the future on the
basis that the plaintiff’s condition is likely to improve and the need will
decrease as her children got older. I do not think the plaintiff is disabled to
the degree necessary to justify further damages. To the degree that the
plaintiff finds she needs other services, they are subsumed in the award for
pain and suffering and loss of enjoyment of life.

[56]        
The plaintiff is entitled to costs unless further submissions are made.

“The Honourable Mr. Justice McEwan”