IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130508

Docket: 104854

Registry:
Victoria

Between:

Jennifer Smith

Plaintiff

And

Alana Christine
Fremlin and

Deborah K.
Sutcliffe

Defendants

Before: The Honourable Mr. Justice
Groves

Reasons for Judgment

[1]            
This trial was conducted under the Fast Track rules and relates to a
motor vehicle accident which occurred on March 19, 2009.  It is conceded
that the plaintiff was injured in that accident and the defendants have
admitted liability.

[2]            
The plaintiff seeks damages for non-pecuniary losses, special damages,
loss of earning capacity in the future, and a modest claim for both cost of
future care and past income loss to the date of trial.

[3]            
The plaintiff was 31 years old at the date of the accident and was 35 at
the time of trial.  She has been a resident of Sooke, B.C. with her partner,
Matt Morrison, since 2006.  She completed a Bachelor of Science degree at the
University of Calgary in 2003.  In September 2006, she began the LL.B. program
at the University of Victoria (“UVic”), which she graduated from early, in
August 2008.  She began her articles shortly thereafter and was called to
the Bar in September 2009.

[4]            
The accident occurred during her articling year.

[5]            
The plaintiff was articling at the Environmental Law Clinic, which the
evidence suggests is associated with the University of Victoria.  She was a
good way through her articles on March 19, 2009, a Thursday, when she was
driving home from a day of work and a chiropractor’s appointment.  She was in a
2004 Ford Escape which was stopped on Sooke Road, indicating an intention to
make a left-hand turn.  She testified that a number of vehicles saw her and
passed her on the right and that there was busy traffic in both directions.  While
waiting to turn left, she was hit from behind by the defendant Ms. Fremlin.
She immediately felt her seatbelt engage and the car was directed across
traffic about 20 metres.  She described the force as strong and hard and that
her body fell forward and back.  She had no warning before impact.

[6]            
She described that, after the accident, she was stunned and disoriented
and got out of her car.  She was taken to the hospital by ambulance.  When the
paramedics arrived, she was given a cervical collar and placed on a spine
board.

[7]            
The evidence of the defendant driver at discovery, as well as statements
which the plaintiff overheard someone she believed to be the defendant say at
the hospital that day, lead to the conclusion that the defendant was inattentive
to the road and was going approximately 70 kph when she rear-ended the plaintiff’s
vehicle.

[8]            
The force of the collision was considerable.  The plaintiff’s vehicle
was written off.  Though the plaintiff was not admitted to the hospital.  She
was transported there out of concern, again, on a backboard and with a collar,
but was released later in the evening.  She described significant injuries over
the first few days; she described feeling hurt all over, in her left shoulder,
especially.  She noted a throbbing, raw pain in this area.

[9]            
At trial, the plaintiff stated that, though the injury is not “raw” at
this stage, she continues to have an ache in her shoulder all of the time.  This
ache is particularly pronounced when she does any activity which causes her to
elevate her arms and move them in a forward direction, such as driving,
bicycling, mowing the lawn, vacuuming, rock climbing and chopping wood, all
activities she did regularly prior to the accident.  Of particular note, she
has significant difficulty working at the computer, particularly operating a
mouse.

[10]        
The extent of the plaintiff’s injuries and her ongoing source of pain were
not significantly challenged in cross-examination.

[11]        
The plaintiff struck me as a diligent, hard-working and somewhat driven
individual, not prone to exaggeration of her symptoms or her limitations.  She
was a very credible witness.  She has worked hard through a painful situation;
she has adjusted her life expectations and adjusted to a great degree a number
of her personal activities.

[12]        
Of particular note, Ms. Smith was a very active person.  Cycling is
something she can no longer do.  Prior to the accident, Ms. Smith was an
advanced cyclist.  She would regularly cycle a considerable part of the distance
to work/school each day, the distance from Sooke to the University of Victoria.
She had also taken long bicycle trips throughout Vancouver Island and, on at
least one occasion, took an extended bicycle trip as far as California.  As
noted, cycling is an activity that she can no longer undertake as it requires
her arms to be placed forward on the handlebars, which she finds painful.

[13]        
Despite the limitations of her injury, Ms. Smith continues to
regularly attend at yoga, though there are certain exercises/positions which
she cannot undertake as a result of the accident.  She continues to be an avid
runner.  She has not run a marathon since the accident but she has, in the past
year and a half, competed in three half-marathons, though her race times were considerably
longer than pre-accident.

[14]        
In regards to her work-related restrictions, the most notable
restriction is her inability to keyboard and to use the computer as she did
before.  She describes how the motion of keyboarding and using a mouse is
something that she can only undertake for approximately 30 minutes before having
to stop, take a break and either stretch and/or apply heat to the shoulder area
where she feels pain.

[15]        
Post-accident, the plaintiff had neck and back pain as well, but those
have resolved.  What she is left with is continued left shoulder pain and
occasional flare-ups behind her right ear, causing significant headaches.  The
headaches also place some restrictions on her ability to work an extended day.

[16]        
The plaintiff has done exactly what one would expect someone injured in
a motor vehicle accident to do.  She has attended regularly at a physician and
followed her physician’s instructions.

[17]        
Additionally, the plaintiff attended at a functional capacity assessment
in October 2012, designed to test her range and strength.  Of note is that,
after the functional capacity evaluation in Vancouver and the stresses
associated with traveling back home on that same day, the plaintiff was in very
poor shape.  She required two days of bed rest and it took her the better part
of the week to get back to the modest level of pain that she generally lives
with.

[18]        
As noted earlier, the plaintiff was in the latter part of her articles
when the accident happened.  Apart from a few days off, she managed to continue
to work for approximately six weeks until the middle of May, when she enrolled
in the professional legal training program, which lasted until the end of July.
This program began about six weeks post-accident and the more modest pace of
the program allowed her to complete it on time.  Following the professional
legal training program, she then completed her final months of articles at the
Environmental Law Clinic.

[19]        
Prior to the accident, the plaintiff had decided to pursue a Master’s
degree in Law.  It was her hope prior to the accident that after her Master’s
degree, which she planned to complete in one year, she would begin the practice
of law, possibly with a friend, doing environmental law, aboriginal law,
immigration law and possibly family law.  As such, she hoped to be working as a
lawyer, with a Master’s degree by the fall of 2010.  For reasons unrelated to
the accident, the plaintiff took two years to complete her Master’s degree,
which she finished in the fall of 2011.  Of note, the plaintiff was successful
in her Master’s program.  She graduated with an A- average.

[20]        
As a result of recognizing her limited ability from the time of the
accident through to the end of her Master’s degree, the plaintiff decided that
the rigours of the traditional practice of law, either working in a law firm or
working in partnership with other lawyers, was not something that she could
realistically achieve.

[21]        
The plaintiff adjusted her expectations and enrolled in a Ph.D. program in
Law at the University of Victoria.  This choice, completing a Ph.D., which the plaintiff
hopes to complete in 2015 or 2016, would allow the plaintiff to focus on the
academic side of law and perhaps obtain a position as a professor in a law
school, or some such similar occupation.

[22]        
The evidence at trial suggests that there is one law school on Vancouver
Island, the University of Victoria Law School, and that in the past five years
they have hired three people into professorial positions.  The average starting
salary for people in this position is $100,000 a year and the average salary
within the faculty, excluding extraordinary faculty such as visiting chairs or
the like, is $128,000 a year.  The range of a professor’s salary, again
excluding the extraordinary income earners, is between $100,000 and $166,000 a
year.  This evidence, provided by Kim Hart-Wesley, a Vice President at UVic,
also suggests that professors were hired to need-specific teaching positions.  As
such, for the plaintiff to even be in the running for a possible future
position teaching at UVic Law School, there must not only be a position
available, but it must also be in her area of study.

Non-pecuniary loss

[23]        
The plaintiff argues for non-pecuniary loss in the range of $85,000 to
$95,000.  The plaintiff relies on a number of authorities including Miller
v. Lawlor, 2012 BCSC 387; Trites v. Penner, 2010 BCSC 882;
Peso v. Hollaway, 2012 BCSC 1763; and Clark v. Kouba, 2012
BCSC 1607.

[24]        
The Miller case saw an award of $65,000 for a plaintiff who, I
agree, was not as significantly injured as was Ms. Smith.  That plaintiff
suffered from sporadic ongoing pain, whereas the uncontradicted evidence of Ms. Smith
is that her pain continues and is constant.  Additionally, Peso saw an
award of $100,000 for a plaintiff who had already undertaken one back surgery
17 months after an accident and was found to have a high risk of requiring
additional surgeries in the future.  That injury is on the higher end of the
scale than the injury to Ms. Smith.

[25]        
The defendants argue for non-pecuniary loss in the range of $45,000 to $50,000. 
The defendants rely on a number of authorities including Gregory v.
Insurance Corporation of British Columbia, 2010 BCSC 352, varied on other
grounds 2011 BCCA 144; Hauer v. Clendenning, 2010 BCSC 366; Moussa
v. Awwad, 2010 BCSC 512; and Rozendaal v. Landingin, 2013 BCSC 24.

[26]        
In Gregory, the plaintiff was injured in a motor vehicle accident,
although she was able to leave the accident on her own.  She immediately had a
sore neck, back, legs and shoulders.  A number of her soft tissue injuries
resolved relatively quickly but she continued to have pain in her left
shoulder.  The bulk of the medical evidence suggested that this was a mild
impairment and that there was no restriction in motion or loss of strength.  The
non-pecuniary loss in that case was $60,000.  I find the injuries to be less
significant than the injuries suffered by Ms. Smith.

[27]        
In Hauer, the court found that the plaintiff’s enjoyment of life
had been significantly diminished by persistent pain in her shoulder while
other soft tissue injuries had resolved.  The pain the plaintiff suffered did
not appear to be as dramatic or consuming as the pain in the present case.  Ms. Hauer
was awarded $50,000 in non-pecuniary loss.

[28]        
In Moussa, the plaintiff was a 53-year-old male who was involved
in sports.  The plaintiff had surgery but continued to experience left shoulder
limitations and arm limitations.  The non-pecuniary award was $75,000.

[29]        
In Rozendaal, the non-pecuniary award was $40,000.  In that case
it was found that the plaintiff would likely have improved to a greater extent
had she undertaken focused strengthening and conditioning therapy as
recommended.

[30]        
I agree with counsel for the plaintiff that Clark is the closest
case to Ms. Smith’s situation.  In that case, the court ordered
non-pecuniary damages of $85,000 for a 49-year-old plaintiff who was physically
active and athletic prior to the accident and who, after some recovery time,
was able to return to her passion of long-distance running.  Though, in the two
years immediately prior to trial, her running had been curtailed for unknown
reasons.

[31]        
The difference I find between the Clark case and the present case
is the impact which this injury has had on this plaintiff in regards to her
career and her employment opportunities.  Although those will be compensated under
loss of future income, which I will deal with later in these Reasons, there is
a significant turmoil in one’s life when one has to choose an alternate career
over one that had been planned and pursued for some time.  I find that to be a
factor, although a minor one, in assessing the non-pecuniary damages of this
plaintiff.  As set out in the Rozendaal decision at para. 78, a
number of factors impact a non-pecuniary damage award, including loss of
lifestyle.  I consider that being forced, through the actions of another, to
interrupt one’s career path and substitute a new, albeit related, career path
properly impacts this head of damage.

[32]        
I assess non-pecuniary damages at $90,000.

Special Damages

[33]        
Before the court are receipts totalling $10,501 for out-of-pocket
medical expenses incurred since the accident to October 31, 2012.  Additionally,
the plaintiff submits chiropractic expenses of approximately $480 from October
to the date of trial and makes a claim for $10,981.

[34]        
It is the defendants’ position that, since the plaintiff regularly
utilized chiropractic treatments prior to the accident, the plaintiff’s
expenses in this regard are at the same level as her pre-accident use. 
Alternatively, the defendants submit that the plaintiff’s documentation supporting
the claim for special damages is inadequate.

[35]        
I find that the documentation is adequate to support the claim.  Additionally,
prior to the accident, the plaintiff used chiropractic treatment on a much less
frequent basis than she has post-accident.  There must, however, be some
adjustment to the cost of chiropractic treatment incurred by the plaintiff
post-accident to reflect the fact that chiropractic treatment was a regular
part of her life.

[36]        
Of the total claim for special expenses, chiropractic expenses appear to
constitute $8,548, the balance being $1,250 for laser therapy and $1,183 for
massage therapy.  I would discount the $8,548 by approximately one-third, or $2,848,
leaving the chiropractic claim at $5,700.  I would allow the laser therapy
claim and the massage therapy claim bringing the total special damages claim to
$8,133.

Cost of Future Care

[37]        
The plaintiff’s cost of future care claim is based on the necessity of
ongoing chiropractic treatment due to the accident, specifically, one
chiropractic treatment per month at $80 (or $960 a year).  In light of what was
said earlier about the plaintiff requiring periodic chiropractic treatment
prior to the accident, and in light of the increased number of treatments she
has had since the accident, I find that a reasonable basis on which to
calculate a claim.

[38]        
Additionally, I agree with counsel for the plaintiff that it is
appropriate to estimate this cost based on the plaintiff reaching the age of 70
or for a period of 35 years.  Using the present value tables of Appendix E of
the Civil Jury Instructions, the factor for 35 years at the current discount
rate of 3.25% equals a calculation component of 20.0007.  That works to a
present value of $19,200 for chiropractic treatment.

[39]        
I agree with counsel for the defendants that a slant board could be a
benefit to the plaintiff to help her limit the need for neck flexion in her
work.  The cost of that is $200 and I would also make that award.  As such the
total cost of future care award is $19,400.

Loss of Earning Capacity:  Past Loss and Future Capacity Loss

[40]        
This is the most controversial aspect of this case.  The plaintiff’s
overall position is that, but for the accident, she would have completed her
Master’s degree and entered into the full-time work force as a practicing
lawyer by the fall of 2011.

[41]        
It is her submission that, if she was able to fulfill this intention,
she would be able to earn more than she will likely now be able to earn as a
person with significant academic credentials but an inability to cope with the
rigours associated with the full-time practice of law.

[42]        
The major piece of evidence in support of the plaintiff’s claim for loss
of earning capacity is the report of Robert Wickson of Discovery Economic
Consulting.  This report essentially provides the court with the National
Occupational Classification (“NOC”) for women born in 1977, working in the occupational
group of “Lawyers and Quebec Notaries”.  After subtracting contingencies for
part-time work, unemployment and EI programs, and adding the value of employee
benefits and allowing for contingency of probability of participation, the
report finds that the total potential loss from the date of trial to retirement
at age 69 is $1,940,100.  To age 65, the figures suggest $1,899,318.

[43]        
Counsel for the defendants took significant objection to the report of
Robert Wickson.  At trial, I rejected their argument that the report should not
be admitted as evidence.  The substance of that argument is worth considering
in these Reasons.

[44]        
It was the position of the defendants that any report which attempts to
provide evidence to the court as to average income of persons within certain
employment designations is fundamentally flawed.  It was the position of the
defendants that the court should require the plaintiff to produce evidence of
persons, working as practicing lawyers, who could testify as to what they earn. 
The suggestion was further made that these witnesses should be women practicing
law in British Columbia.

[45]        
One must keep in mind that all parties appear to have agreed to this
matter being litigated under the Fast Track model in three to four days.  It is
nonsensical to require a party to prove a claim by calling a potentially large
number of witnesses, in this case, female lawyers in British Columbia of the
same age, to testify.  It is folly not only as to the time and cost, but also
as to the possibility of finding this information in advance.  It would require
people to willingly disclose their income.  Additionally, it is folly when one
considers the number of persons that would have to be called to create any
level of statistical reliability.

[46]        
What this Discovery Economic Consulting report shows is that for
persons who fall within the NOC classification of ”Lawyers and Quebec Notaries”,
the potential earning capacity is approximately $1.94 million over the course
of their career.  Importantly, the persons that fall within this classification
are a much larger body of persons then simply practicing lawyers.  Although
numerous types of lawyers and notaries are included in this classification, it
also includes judicial assistants, advisory counsel, articling students,
advisors of law and corporate affairs, and a number of other job
classifications which may not require law degrees, such as legal officers and
legislative advisors.

[47]        
I accept that this report is evidence of lifetime capacity for someone
with the career path that Ms. Smith was undertaking.  In fairness, however,
the number should be increased as a number of persons falling within the
classification are not lawyers and employed in occupations, likely to be
earning less, such as articling students.  I find that working to age 69
is not unreasonable.  As such, I would find that a reasonable dollar figure for
lifetime earnings for a lawyer is $2,000,000.

[48]        
Having heard the plaintiff’s medical evidence and having determined that
she is a conscientious, driven and hard-working individual, I conclude, but for
the accident, she would have succeeded, after finishing her Master’s degree, as
a lawyer in private practice.  As a result of the accident, she cannot do what
is required of a lawyer in private practice.  She is unable to spend a significant
amount of time doing computer work which is particularly essential in the
practice of law.  Creating documents, corresponding with counsel, corresponding
with clients, doing legal research, preparing pleadings, formulating opinions:
all these tasks require significant computer work and computer skills. 
Although the plaintiff has these skills, as a result of her injuries, she
cannot do the computer aspect of her job for an 8-hour day or longer.

[49]        
Additionally, as a result of her pain, it is hard to imagine that this
plaintiff could, for example, work evenings during the course of trial to
prepare for the next day, including preparing any necessary submissions which
the court would require.

[50]        
Having considered all the evidence, the functional capacity report and
the believable evidence of the plaintiff, it is my view that, at best, this
plaintiff would be able to function at 70% capacity as a lawyer in private
practice.  That would, on the face of it, make her loss 30% or approximately a
$600,000 loss, based on the determination that, from the date of trial, a
reasonable lifetime earning potential is $2,000,000.

[51]        
That loss, however, is not the loss that is claimed by this plaintiff.  The
plaintiff advocates for a past wage loss of $100,000 from October 2011 to
the date of trial.  She calculates this loss based on the tables provided in
the Robert Wickson report.  She advocates a further claim for $350,000
representing future loss of earning capacity from the date of trial.

[52]        
It is fair to say that it is often easier to calculate a past loss
because the court can be cognizant of the various contingencies and variables
at play up to the date of trial.  Here, but for the accident, this plaintiff
would have been in the work force as of October 2011 when she finished her
Master’s degree.  It is reasonable to assume that, to the date of trial, she
would have had the earning capacity of a junior lawyer for approximately 15
months.  Table 1 suggests that in the first full year, the present value of
earnings after contingencies is approximately $77,316.  Again, I find the table
to be somewhat modest in its calculations for reasons noted earlier.  Yearly
earnings of $77,316 translate to $96,645 over a 15-month period. Though this
does not take into account the increased earnings that one would likely have in
the second year of employment nor the fact that these tables are, as I noted, in
need of upward adjustment based on the classifications of persons surveyed as
compared to lawyers in private practice.  That being said, during this period
of time, the evidence suggests that the plaintiff has been able to earn some
money, perhaps $10,000, while working on her Master’s degree.  That should be
factored in as well.  As such, I have determined her past wage loss at
$90,000.

[53]        
Turning to the future loss of earnings and loss of capacity claim, again
this does not lend itself well to arithmetic calculation.  A number of factors
have to be taken into account.

[54]        
Here, this plaintiff would ultimately like, as a result of the accident
and her additional training through her Ph.D. program, to become employed as a
professor at the University of Victoria Law School.  If she was to do so, it is
likely that she would suffer very little future loss from the date that she
accepts that position to her date of retirement.  However, based on the
evidence before me that there have been only three positions to fill at the
University of Victoria Law School in the past five years, based on the fact
that those positions have been where the Law School has a specific need for a
professor, and based on the fact that there are very few law schools in British
Columbia, that possibility is somewhat remote.  The likely scenario is that,
for the balance of her working life, this plaintiff will be employed in some
capacity as a lawyer, but will only be able to work a modified schedule and her
practice area will be limited to matters outside the cut and thrust of a litigation
practice.  It is to the defendants’ distinct advantage that the court can
conclude that this plaintiff, Jennifer Smith, is a hard-working, driven
individual.  She has worked through her pain and there is no doubt that she
will continue to do so.  She has made the best of her limitations and, in that
sense, the defendants get the benefit of a diligent individual who will no
doubt succeed at what she undertakes.  But she will, nonetheless, succeed in a
modified way.

[55]        
Based on the entirety of the evidence, I am satisfied that the plaintiff
has proven on a balance of probabilities, as a result of the accident, that she
has suffered a loss of earning capacity.  The medical evidence is completely
supportive of this position and, including the functional capacity evaluations,
confirms the limitations she has which would prohibit her from the full-time
practice of law, which she had intended to pursue.

[56]        
I disagree with the defendants’ submissions that there is only a small
amount of evidence on which to infer facts and that the evidence is inadequate
to support the damage claims of the plaintiff.  The defendants rely on Perren
v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303 in support of their
position.  My reading of Perren suggests that the onus is on the plaintiff
to establish that there is a “real possibility of future loss”.  Additionally,
the Court of Appeal has determined in Sinnott v. Boggs, 2007
BCCA 267 at para. 15, 69 B.C.L.R. (4th) 276 that a loss of earning
capacity can be established if a plaintiff continues to work in her particular
field but at a reduced level of performance and income.  That is the
circumstance I find present here in regards to this plaintiff.

[57]        
Considering the significant salary expectations that one would have
starting a career as a lawyer and considering the limitations which this
plaintiff now faces as a result of her injuries, I have concluded that a
reasonable assessment for loss of future earning capacity is $300,000.

Conclusion

[58]        
In summary, I award the plaintiff damages as follows:

1.              
Non-pecuniary loss – $90,000

2.              
Special damages – $8,133;

3.              
Cost of future care – $19,400;

4.              
Past wage loss – $90,000; and

5.              
Future loss of opportunity – $300,000.

[59]        
The plaintiff is entitled to her costs, but as this matter was on the
fast track model, there may be restrictions on the level of costs to be
awarded.  If counsel cannot agree on the appropriateness of costs or the level
of costs to be awarded to this successful plaintiff, they can arrange to get
back in front of me through trial scheduling in Victoria.

"The
Honourable Mr. Justice Groves"