IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130515

Docket: 48559

Registry:
Vernon

Between:

Michelle Embleton

Plaintiff

And

Jordan John
Alexander Innes and

Dueck Chevrolet
Buick Cadillac GMC Limited

Defendants

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
The plaintiff was injured in a car accident. The central issue in her
claim for damages is whether there is a substantial possibility that her
injuries will permanently impair her function.

The Facts

[2]            
On September 22, 2009 Ms. Embleton was the right front seat
passenger in her family’s minivan when that vehicle was struck from behind by a
vehicle driven by the personal defendant and owned by the corporate defendant.
The defendants have admitted liability for the collision. Ms. Embleton was
stunned and shocked by the event. In the immediate aftermath of the collision,
her attention was focused on her two children, aged one and three, who were
also in the vehicle. Emergency personnel attended the collision scene. No one
in the Embleton vehicle required immediate medical attention, and no one was
transported to the hospital. The Embleton van was not roadworthy and the family
called for a ride home with Ms. Embleton’s mother.

[3]            
Ms. Embleton was 37 years old when the accident happened. She had
grown up in Vernon, B.C. She graduated from grade 12 and went on to several
years of generally unsuccessful post-secondary study. She first thought to
become a physical education teacher but soon abandoned that plan. She then
thought to become an accountant but after a short while in an accountancy
program she decided against that career as well. Eventually, Ms. Embleton
decided to try her hand in the healthcare industry. In 1992 she enrolled in a
10-month program and she graduated in June of 1993 with a certificate as a care
aide.

[4]            
Earlier, when she was in her teens, Ms. Embleton joined the Cadets.
Later she joined the Army Reserve. After completing her training as a care
aide, Ms. Embleton took a job with the Reserves. She spent about six
months in 1993 posted to a military base in Alberta. There she acted as a
helper at a military driver training program.

[5]            
In 1994, Ms. Embleton obtained casual on-call work as a care aide
at the Vernon Jubilee Hospital. She also found part-time employment as a care
aide at two residential homes in Vernon. These homes were called Gateby Place
and Noric House. Ms. Embleton saw her employment at the Hospital as her
best chance to get secure work in the future. For that reason she concentrated
on building up as many hours of work at the hospital as she could. By that
means she planned to increase her seniority among the care aide workforce and
thus be better positioned to obtain permanent full-time work.

[6]            
In 1997, Ms. Embleton achieved her goal of obtaining permanent
full-time work. In that year she began to work full-time, i.e.: 37.5 hours per
week, as a residential care aide in the Polson wing of the Jubilee Hospital.
Patients in the Polson wing are typically elderly, infirm, and unable to attend
to their own personal care. Care aides are required to provide personal care to
these patients. Care aides attend to dressing, toileting, feeding, washing, and
bathing patients. In order to do these tasks care aides must often lift, roll,
and transfer patients from bed to wheelchair and back again several times per
day. Some of the patients are large individuals. Care aide work is, therefore,
very physically demanding.

[7]            
The work is demanding in other ways as well. Patients require assistance
throughout their waking hours. Care aides must therefore work in shifts. One
shift starts early in the morning and goes until early or mid-afternoon. The
next shift starts in the afternoon and goes until early evening. During each
two-week cycle care aides rotate through morning and afternoon shifts. In the
result, residential care aides cannot count on working a steady day shift, nor
can they count on working weekdays only and enjoying their weekends off.

[8]            
In 1999 or 2000, Ms. Embleton began a romantic relationship with Mr. Burke.
The two moved in together, and they have lived as a married couple since then.
The couple’s first child was born in 2004. Ms. Embleton took a year of
maternity leave following his birth. In 2005, she returned to her full-time rotating
shift work as a residential care aide.

[9]            
Ms. Embleton’s employment at the hospital permits her to apply for
different positions throughout the institution. If she is the successful
applicant she is allowed to try out the new job for three months. Any time
within that three month window Ms. Embleton can switch back to her
previous position. So, if she finds that the new job does not suit her, she can
leave it and return to her regular job. If she stays in the new position longer
than three months, she will lose her old job, and the new job will become her
regular position.

[10]        
In 2006, Ms. Embleton decided to make a change in her work
schedule. She moved over to a job as a hospital housekeeper. This job was days
only, so it suited her lifestyle as a new mother and homemaker. The housekeeper
job paid $4 less per hour than the residential care aide position. Before the
end of the three month try-out period, Ms. Embleton decided to go back to
her regular full-time residential care aide position.

[11]        
Ms. Embleton continued to look for a change. In February 2007 she
took a care aide position working in place of an employee who was on leave.
This job was confined to giving baths to Polson residents. Instead of full-time
work, the bath posting was part-time. It offered .67 of a full-time equivalent
position. In short, by moving to this job, Ms. Embleton had thus elected
to work and be paid less. Ms. Embleton stayed in this position until May
2008 when its owner returned to work.

[12]        
In May 2008, Ms. Embleton returned to her full-time job doing
residential care in the Polson wing of the Vernon Hospital. By then, Ms. Embleton
was pregnant with the family’s second child. She was on sick leave from August
2008 until October 10, 2008 when she gave birth to a daughter. Ms. Embleton
then went on a year-long maternity leave.

[13]        
The traffic accident happened about two weeks before she was to return
to work.

[14]        
Ms. Embleton’s partner Mr. Burke manages a hockey rink. He
works from mid-afternoon until late evening weeknights, and often works on the
weekends as well. Mr. Burke is heavily engaged in hockey for his work and
for recreation.

[15]        
Ms. Embleton has been enthusiastically engaged in recreational
sports throughout her life. In the years before and since the traffic accident,
during the spring and summer she plays women’s and mixed team slo-pitch and
soccer. In the winter season she plays volleyball and hockey. She is a keeper
on the soccer pitch and a goalie on the ice. She is a fielder on her softball
teams and a setter on the volleyball court. She will often play sports three or
four evenings per week throughout the year. This is despite her having to work
evening shifts, despite her partner’s work schedule, and despite her
responsibilities as a homemaker and a mother to two young children. If it were
possible to do so, Ms. Embleton’s preference is to play her sports six
nights per week.

[16]        
Ms. Embleton has attended at her chiropractor Dr. Kinakin at
least monthly since the early 1990s. She started seeing Dr. Kinakin for
relief from work-related low back pain. Ms. Embleton has also seen Ms. Torrie,
a massage therapist, on a regular basis since the 1990s. Ms. Embleton’s
complaints to Ms. Torrie have been of various aches and pains in her
knees, legs, throughout her back including her neck, and her shoulders.

[17]        
The evidence offered by Ms. Embleton, her partner Mr. Burke,
her softball and volleyball teammates, and her co-worker uniformly described Ms. Embleton
as being before the traffic accident fully capable of performing at a high
level in sports and operating without limitation at work.

[18]        
After the accident Ms. Embleton experienced pains in her neck,
upper back, and shoulders. She had headaches which she associated with pain in
her neck. Ms. Embleton started working again after her maternity leave
ended in early October. She resumed her job doing rotating shifts as a
residential care aide in the Polson wing. She felt that her neck and back were
too sore to continue with that work. Two weeks after returning to work, Ms. Embleton
applied for a care aide job in a different unit of the hospital. This unit was
the ALC ward. The patients there are generally less dependent on care aides for
their needs. The work on the ALC ward is, therefore, somewhat lighter and less
demanding than in the Polson wing. The ALC job was part-time – it was .68 FTE. Ms. Embleton
stayed in this position after the three month try out period. In the result,
she lost ownership of her full-time job and owned, instead, the .68 FTE
position.

[19]        
Ms. Embleton’s position has since been increased to .72 FTE. Full-time
work would be 37.5 hours per week. Ms. Embleton does extra shifts when
they are available and averages 30 hours per week.

[20]        
Since the collision, Ms. Embleton’s main accident-related
complaints have been of headaches and fatigue. Notably, by the spring of 2009 Dr. Kinakin,
to whom Ms. Embleton testified she turns for primary care of her aches and
pains, stopped recording headache as a significant complaint.

[21]        
In the summer of 2010, Ms. Embleton developed plantar fasciitis in
her foot. That condition was treated with orthotics. Ms. Embleton has
bilateral chondromalacia in her knees. Her right knee became symptomatic and
disabling in the spring of 2011. She had surgery on that knee in August 2011
and has had a good recovery. Her left knee became symptomatic in 2012 and
surgery was done in it in November 2012. She is still recovering from that
surgery.

[22]        
Ms. Embleton continues to do the sports she played before the
collision, but she is generally slower, more hesitant, and less competitive
than before. The evidence did not clearly delineate the degree to which
accident-related injuries, her foot, and her knee problems have contributed to
the decline of her sporting prowess.

[23]        
In April 2012, the physiatrist Dr. Travlos assessed Ms. Embleton.
She advised him that her last headache had been two weeks earlier, and the last
one before that had occurred two weeks earlier. Ms. Embleton was working
.78 FTE as a care aide doing baths for patients in the Polson wing. She
testified that the bath position was a “dream job” for her because it involved
lighter work and because it was days only. Working days only allowed her to be
with her family in the evenings (when her partner is usually at work) and to do
her sports. Ms. Embleton left the bath team when the incumbent in that
position returned to work. She then returned to her .72 FTE on the ALC ward.

[24]        
Presently, Ms. Embleton’s main complaints are headaches, neck pain,
and fatigue that come on after a hard day of work. She asserts that she did not
feel this way before the traffic accident. Ms. Embleton feels that she is
working at her maximum capacity and that she could not handle her previous full-time
job in the hospital’s Polson wing.

[25]        
She says that she takes over-the-counter pain medication on a daily
basis to deal with her headaches and neck pain. She has been prescribed
sleeping medication, but stopped using it due to the groggy feeling it leaves
with her in the mornings.

[26]        
Ms. Embleton had a housekeeper come in to the family home once per
month before the accident. She has the housekeeper come in twice a month now.
The extra visit is to look after housekeeping tasks that Ms. Embleton says
she cannot do now, such as cleaning the bathtub, mopping, and cleaning walls
and windows. The housekeeper charges $18 per hour and is typically on site 1.5
hours per visit.

Expert Evidence

[27]        
The plaintiff adduced opinion evidence from the physiatrist Dr. Travlos,
the general practitioner Dr. Williams, and the occupational therapist Ms. Galbraith.
The plaintiff also relied on fact evidence from the chiropractor Dr. Kinakin
and the massage therapist Ms. Torrie.

[28]        
The defendant adduced a medical report from the physiatrist Dr. Coghlan.

[29]        
As noted, Ms. Embleton relied on Dr. Kinakin before and after
the accident for primary care of her complaints. Dr. Kinakin’s evidence
simply confirmed that before the accident Ms. Embleton’s complaints were
generally concentrated in her lower back but that she occasionally also complained
of neck, mid-back, and shoulder pains. Dr. Kinakin has persuaded Ms. Embleton
that she should attend his office at least monthly whether she is feeling
symptomatic or not. After the accident her main complaint was of headache, and
that complaint disappeared in the Spring of 2009. After that, her complaints
concentrated on her neck and back. The frequency of Ms. Embleton’s visits
to Dr. Kinakin increased after the accident, but have now returned to
their pre-accident level.

[30]        
The massage therapist, Ms. Torrie, confirmed that her notes show
that before the accident Ms. Embleton complained of aches and pains in
virtually all areas of her body. These complaints were often related to Ms. Embleton’s
sporting activities. After the accident, Ms. Embleton complained primarily
of neck pain and headaches.

[31]        
Dr. Williams saw Ms. Embleton rarely before and after the
collision. She attended at his office for medical problems other than aches,
pains, and strains. She took those latter complaints to Dr. Kinakin. After
the accident, Ms. Embleton saw Dr. Williams on September 30, 2009. He
examined her and found that she had tenderness in her trapezius and
lumbo-sacral muscles. He recommended over-the-counter pain medication. He saw
her again in December 2009 and recommended that she have the benefit of a
personal trainer to develop a rehabilitative exercise regime. Dr. Williams’
clinical records indicate that a personal trainer did work with Ms. Embleton
for six sessions in January and February 2010. The trainer reported that Ms. Embleton
complied with his recommendations and had made progress but had not yet fully
recovered.

[32]        
Under cross-examination, Ms. Embleton’s counsel asked Dr. Williams
whether he agreed that it was likely that her motor vehicle accident-related symptoms
would be permanent, given that they were still bothering her three and a half
years after the collision. Dr. Williams refused to endorse that notion. He
maintained that he was optimistic that Ms. Embleton would go on to
experience a full recovery.

[33]        
Dr. Travlos noted Ms. Embleton’s various complaints before and
after the accident. He reported that Ms. Embleton had difficulty
describing to him how her symptoms differed before and after the accident. Dr. Travlos
opined that Ms. Embleton’s neck and headache pains are accident related in
that they may be new to her or they may be an aggravation of previous symptoms.
He felt that her low back complaints were basically the same as they had been
before the accident. Dr. Travlos said that the arthritis and chondromalacia
in both of Ms. Embleton’s knees is not accident related, will require
further treatment but that treatment will not make the pains go away. He
recommended medication to help her sleep and occasional use of medication for
head and neck symptoms. He recommended against full-throttle recreational
activity, especially as such will likely aggravate Ms. Embleton’s knee
problems. Dr. Travlos’s medical prognosis was this:

Ms. Embleton should continue
to improve in terms of her upper body and should return back to her baseline.
It is possible, however, that she will remain with the same ongoing symptoms as
she has now into the future. Her current level of symptoms will be higher than
that expected for her pre-accident complaints. In my opinion, her lower back
pain is back to baseline.

[34]        
Dr. Travlos’s assessment of Ms. Embleton’s current and future
functional ability was this:

Ms. Embleton will have
restrictions with heavier work and chores around the home due to a combination
of symptoms from her upper body through her low back into her knees. … For
example, vacuuming will affect her back, cleaning bathrooms will affect her
knees and her back, and to a lesser degree her upper body. Cleaning walls,
windows or washing overhead or other such activities will likely impact
primarily her neck more than any other region. In other words, they all
contribute to her current limitations. It is my expectation that Ms. Embleton’s
restrictions will probably remain over the long term.

[35]        
Dr. Travlos wrote this about Ms. Embleton’s current and future
vocational abilities:

… It is my opinion that Ms. Embleton
could work at a lighter-duty job in a full-time capacity if such work were
available. In my opinion, Ms. Embleton would struggle to work at her
previous job (that she was doing prior to the accident) in a full-time capacity
even at this time, as the job was very physical and involved being a care aide
for very physically limited individuals in an extended care environment. I
recommend she not return back to that line of work, as it will almost certainly
aggravate all of her complaints. …

[36]        
In July 2012, the occupational therapist Ms. Galbraith assessed Ms. Embleton’s
functional capacity and her cost of future care needs. Ms. Galbraith
tabulated the physical demands of the care aide job and compared Ms. Embleton’s
measured capacity to those demands. Ms. Galbraith concluded that Ms. Embleton’s
limitations are concentrated around low level crouching, kneeling, and crawling
activities – limitations which are attributable to problems in her knees. Ms. Galbraith
felt that Ms. Embleton’s neck pains somewhat limited her ability to do
overhead work. Like Dr. Travlos, Ms. Galbraith opined that Ms. Embleton
was capable of working as a care aide on a full-time basis provided that she was
not called upon to heavier tasks than she was asked to do during the functional
capacity evaluation. In that regard, Ms. Galbraith wrote:

According to the information from
the job description and job demands analysis Ms. Embleton does not meet all
of the criteria for a care aide. That being said however she meets the majority
of the criteria and has been successfully working as a care aide since 1 month
post accident. It is possible that when Ms. Embleton is at work she
performs tasks of greater demands and as a result experiences higher levels of
pain. This is not to say that she should not work in such a position but that
accommodations should be put in place to ensure that she does not experience
increases in functionally limiting pain. …

[37]        
As for future care, Ms. Galbraith recommended that Ms. Embleton
continue to use over-the-counter pain medication, sleeping medication (it is
unclear whether Ms. Galbraith was aware that Ms. Embleton had
eschewed sleeping pills), counselling, a personal trainer, a back rest and
extended mirrors for her vehicle, and a gym pass.

[38]        
The physiatrist Dr. Coghlan assessed Ms. Embleton in September
2012. Dr. Coghlan diagnosed Ms. Embleton’s accident-related injuries
as an acute whiplash of her neck which caused pain in her neck and shoulders
and headaches. He said that the accident aggravated her pre-existing lower back
pain, but that her lower back had returned to its pre-accident condition. He
said:

As a result of the accident I do
not feel that she is physically restricted in terms of work, household
activities or recreation.

[39]        
But he went on to say:

I do feel that her knees and her
back may be more of a restriction in her physical capability than her other
symptoms and I think this was also the impression of Dr. Travlos. Her
knees may continue to limit her vocational and sporting activities over time
and may indeed become more restrictive.

[40]        
Ms. Embleton’s counsel did not put to Dr. Coghlan the
proposition that because her symptoms have lingered as long as she says, those
symptoms are likely to be permanent.

[41]        
Presently, Ms. Embleton works an average of 60 hours per week at
the same pay rate as she would if she were working full-time. That rate is
$22.38 per hour. Her employer contributes 9.67 percent of her hourly wage to
her pension plan. For every hour of work that she misses due to the accident,
she also loses her employer’s contribution of $2.16 to her pension.

[42]        
Ms. Embleton does exercises at home and goes to a gym on a regular
basis. It has been some years since she last had the benefit of a personal
trainer to formulate and regulate an exercise regime tailored to her needs.

The Parties’ Positions

The Plaintiff

[43]        
Ms. Embleton submits that her accident-related symptoms continue to
severely impact her life. She says that she cannot work full-time as a
residential care aide because her stamina for heavy work is much reduced. She
attributes the reduction to headaches and neck pain and general fatigue. Ms. Embleton
argues that her symptoms will permanently impair her function at work, in the
home, and in her recreational sports play.

[44]        
In support of her claim for non-pecuniary damages, Ms. Embleton
cites Stapley v. Hejslet, 2006 BCCA 34 for the general principles that
guide the assessment of general damages. As to quantum, Ms. Embleton relies
on Morgan v. Scott, 2012 BCSC 1237, Culos v. Chretien, 2012 BCSC
1050, Foster v. Kindlan, 2012 BCSC 681, Delgiglio v. Becker, 2012
BCSC 480, Hosking v. Mahoney, 2009 BCSC 803, Jopling v. Brodowich,
2009 BCSC 653, and Kuskis v. Tin, 2008 BCSC 862. She asserts that the
proper award for non-pecuniary loss in her case is $80,000.

[45]        
For past income loss, after accounting for time she took off work after
her knee surgeries, Ms. Embleton claims $34,338 plus $2,678 for loss of
past pension benefits. The parties agreed that they would work to determine Ms. Embleton’s
net income loss based upon whatever figure the court may award together with
the marginal tax rate that would apply to that award.

[46]        
Ms. Embleton maintains that her injuries will permanently impair
her ability to do all of the work-related tasks she could do before the
accident. She says this will reduce her capacity to earn income in the future.
Her counsel prepared detailed formulas showing how future loss may be
determined based on various scenarios, but in the end counsel acknowledged that
the exercise is really one of assessment rather than calculation. Counsel
argued that Ms. Embleton’s loss of earning capacity should be assessed at
$100,000. Counsel sought to add to that figure an additional $10,000 for loss
of pension entitlement.

[47]        
Ms. Embleton claims future care costs for continued house cleaning
assistance, medications, gym membership, exercise equipment, sleeping and
posture aides, and extended mirrors for her vehicle. She quantifies these
claims at $40,000.

[48]        
In addition to house cleaning, Ms. Embleton says that her capacity
to be a housekeeper has been reduced and that she should have $10,000 to
compensate her for that loss.

[49]        
Finally, the parties agreed on some of Ms. Embleton’s special
damages, and fixed $4,329.79 for those agreed items. The only item they were
not able to agree upon was the cost of one additional housecleaning session per
month from the date of the accident to trial. According to Ms. Embleton,
that cost was $5,230. She claims that figure as a special damage.

The Defendants

[50]        
The defence argues that Ms. Embleton sustained a moderate soft
tissue injury to her upper back and neck and an aggravation of her pre-existing
low back symptoms. The defence says that Ms. Embleton was substantially
recovered from her accident-related problems within about a year of the
collision. The defence relies on Bjarnason v. Parks, 2009 BCSC 48, Hammond
v. Meeker, 2012 BCSC 198, Schmidt v. Hawkins, 2010 BCSC 1154,
Atker v. Nair, 2011 BCSC 1877, Parker v. Lemmon, 2012
BCSC 27, and Travelbea v. Henrie, 2012 BCSC 1532, and says that Ms. Embleton’s
general damages should be assessed at $35,000.

[51]        
The defence acknowledges that Ms. Embleton was properly unable to
work full-time immediately after the accident and that it was appropriate for
her to switch to a .68 FTE position. The defence says that the medical evidence
indicates that she had recovered sufficiently to return to her full-time job
within the three month try-out period allowed by her employer’s policy. The
defence says that Ms. Embleton’s claim for past income loss should be
fixed at $5,000.

[52]        
According to the defence, Ms. Embleton’s claim for future care
should be limited to $1,000 for over-the-counter medications. The defence
argues that her claim for past housecleaning services should be denied because
she would likely have kept her house cleaner twice per month in any event. That
would be because she would have returned to her full-time job, her partner
would be working nights and does no housework himself, and she would have had
two young children to care for. The defence says that Ms. Embleton can do
her housework, albeit with some discomfort, and that discomfort is properly compensated
by non-pecuniary damages.

[53]        
Finally, the defence submits that the medical evidence does not support
the proposition that Ms. Embleton’s accident-related complaints will be
permanent or that they in fact limit her ability to fully participate in the work
force. The defence says that if Ms. Embleton’s capacity to earn income is
less now than before, that loss is attributable to problems with her low back
and especially to her knees, neither of which can be blamed on the accident.

Discussion

Injuries

[54]        
 All of Ms. Embleton’s claims are directly related to the degree
and longevity of her accident-related symptoms and loss of function. It makes
sense, then, to begin discussion of the quantum of her claims with findings of
fact concerning those injuries and consequent loss of function.

[55]        
The collision itself was significant but not catastrophic. Within a few
days of the accident Ms. Embleton complained to her chiropractor and to
her medical doctor of pains in her neck, shoulder, mid-back, lower back, and of
headaches. Several months after the collision she attended at a gym with a
personal trainer and there she faithfully performed the exercise routines he
established for her. She experienced some relief from her pains and some
increase in function and tolerance for activity. About six months after the
accident, Ms. Embleton’s headaches had diminished in frequency and
severity, but they had not disappeared altogether. By the first anniversary of
the accident, Ms. Embleton was attending yoga and was playing all of the
sports that she had played before the accident, albeit with less tolerance for
extreme exertion.

[56]        
Based on Dr. Kinakin’s notes, which I accept as an accurate record
of the complaints that Ms. Embleton voiced during her many visits, I find
that by 2012 her lower back had returned to its pre-accident state.

[57]        
In April 2011 Ms. Embleton’s right knee became symptomatic with
arthritis and chondromalacia. The knee was troublesome to her, and she attended
an orthopaedic surgeon. The surgeon operated on the knee in August 2011.

[58]        
In 2011, Ms. Embleton’s main accident-related complaints remained
headache and neck pain, but they were less intrusive than they had been a year
earlier. By the spring of 2012, the frequency of Ms. Embleton’s headaches
had diminished to once every two weeks. Her left knee had become symptomatic at
this time and it eventually required surgery. That surgery took place in
November 2012.

[59]        
I find that by the time that Ms. Embleton saw Dr. Travlos her
accident-related symptoms had diminished to headaches and neck pain that
bothered her roughly every two weeks. She was doing a relatively lighter bath
job then. She has since returned to her regular duties on the ALC ward. The
frequency of her headaches and neck symptoms increased following the move back
to her usual position.

[60]        
I am satisfied that at present, Ms. Embleton continues to have
headaches and fatigue after a strenuous day at work. Ms. Embleton still
plays her sports, though, and whatever problems she has at the end of a shift
of work are not sufficient to keep her from going to the field, court or rink
to compete. I find that Ms. Embleton’s current accident-related symptoms
are closer to a nagging irritant than they are to an actual disability.

Non-Pecuniary Loss

[61]        
The authorities on which Ms. Embleton relies tend to involve
accident-caused symptoms that will impair the plaintiff’s function in the
long-term.

[62]        
Of the three medical doctors who provided opinion evidence, only Dr. Travlos
allowed for the possibility that Ms. Embleton’s upper body symptoms may
continue to bother her into the future. To repeat, he said:

It is possible, however, that she
will remain with the same ongoing symptoms as she has now into the future.

[63]        
This is at best a lukewarm endorsement of persistent symptoms arising
from the accident. It may be contrasted against Dr. Travlos’s more
assertive opinion that:

Ms. Embleton should continue
to improve in terms of her upper body and should return back to her baseline.

[64]        
In my view, the weight of medical opinion lies on the side of eventual
recovery and return to Ms. Embleton’s pre-accident health (leaving foot
and knee troubles aside, of course). With that prognosis in mind, and giving
consideration to the fact that three and a half years after the collision Ms. Embleton
still has some symptoms, I find that a non-pecuniary award of $60,000 is
reasonable compensation for her pain and loss of enjoyment of life.

Past Income Loss

[65]        
The defence position on past income loss is, basically, that Ms. Embleton
did not take reasonable steps to mitigate her loss. The defence says that she
should have tried to return to her full-time job in the Polson wing shortly
before the three month window for her to make that move closed. It maintains
that by not even trying to go back to her full-time job she prematurely
resigned herself to never holding a full-time position again.

[66]        
The evidence persuaded me that in October 2009, Ms. Embleton was
motivated to fall back to a part-time job by a number of considerations, of
which her accident-caused injury was only one. The other considerations were
her dedication to her sports play and the time sports demanded from her home
life, the fact that her partner was not in the house weeknights, the fact that
her partner does no housework, and the advent of an additional child in the
household. These factors all weighed on Ms. Embleton. They influenced her
decision to try the part-time position.

[67]        
Those factors were also in play when Ms. Embleton decided to stay
in the part-time job. I accept her evidence that by February 2010, Ms. Embleton’s
injuries were still bothering her, and her life circumstances were such that
even without those injuries she would likely have been well motivated to stay
at part-time.

[68]        
If follows, then, that multiple factors led to Ms. Embleton working
only part-time after the accident. The injuries she sustained in the accident
were a significant contributing factor in that event. The principles of
causation laid down in Athey v. Leonati, [1996] 3 S.C.R. 458
dictate that where, in a case such as this, past loss has been caused by
multiple factors, the loss is recoverable so long as the defendant’s negligence
was a material contributing cause of the loss. In Ms. Embleton’s case, the
defendants’ negligence caused her physical injuries and those injuries were a
material contributing factor in her decision to seek and keep part-time work.

[69]        
However, I have no doubt that even if the accident had not happened, Ms. Embleton
would have suffered pain and disability in her arthritic knees. That factor
would have caused Ms. Embleton to decrease her work schedule sometime in
2011 in any event. Ms. Embleton had long-standing arthritis and
degeneration in her knees. The accident neither caused nor aggravated that
condition. The advent of her knee problems is, therefore, a true intervening
cause. The time she had off work due to knee problems must be excepted from her
claim for income loss consequent to the accident.

[70]        
In the result, I find that the accident was a material contributing
cause of Ms. Embleton working part-time rather than full-time from the
accident. After accounting for the intervening problems with her knees, I would
assess Ms. Embleton’s past loss of income, including loss of pension
entitlement, at $36,000.

Special Damages

[71]        
I find that if she had not been injured in the accident, it is more
likely than not that after she returned to full-time work Ms. Embleton
would have increased the frequency of her house cleaner’s visits to twice per
month. I have come to that conclusion because had she been working full-time, Ms. Embleton’s
schedule would have been full what with having two children in the house, a
full-time job, persistent pre-existing low back pain associated with her work,
a partner who did not help with housework, and sports practices, games, and
tournaments throughout the year. I would make no award for the additional
housecleaning services from the accident to the present day.

Reduction of Earning Capacity

[72]        
I accept Ms. Galbraith’s finding that Ms. Embleton’s current
functional capacity limitations arise primarily from her knees and to a lesser
extent from her low back and neck. I also accept the opinions of Dr. Travlos
and Dr. Coghlan that to the extent that Ms. Embleton may have trouble
in the future, that trouble will be caused primarily by her arthritic knees.
Further, she will be at higher risk of disability stemming from her knees if
she continues to play all of her sports at a competitive level. Ms. Embleton’s
evidence was that she intends to continue to play sports notwithstanding the
condition of her knees. It follows that Ms. Embleton’s ability to work in
the future may well be diminished due to her adherence to sport and not due to
anything caused by the accident.

[73]        
The test for proof of a future loss is whether the evidence shows that
there is a “real and substantial possibility” that the loss will occur: Perrin
v. Lalari, 2010 BCCA 140 at paragraph 32.

[74]        
I recognize Ms. Embleton’s lack of confidence that she will
eventually recover from her accident-caused injuries. However, a plaintiff’s
subjective pessimism is not the kind of evidence that can establish a real and
substantial possibility that a future event (in this case: recovery) will not
happen. Medical evidence is, in my view, much the better tool for that
exercise. Dr. Williams testified that he is optimistic for eventual full
recovery. Dr. Coghlan believes that Ms. Embleton is already not
functionally limited by accident symptoms. The weight of Dr. Travlos’s
opinion tends to recovery as well.

[75]        
The evidence indicates that it is a bare possibility that Ms. Embleton’s
accident-related symptoms will continue to impair her function in the future,
but the law is clear that a bare possibility is not sufficient to bottom an
award for future loss.

[76]        
For these reasons I find that there is not a real and substantial
possibility that Ms. Embleton’s accident-caused symptoms will permanently
impair her function.

[77]        
That said, Ms. Embleton’s symptoms do still bother her and her
recovery is not absolutely complete. It may be a few years yet for her to
return to her pre-accident baseline condition. There is a substantial
possibility that during those years, her headaches and neck pain will prevent
her from taking additional shifts of work or from working in her previous job
as a residential aide. I would award $40,000 to Ms. Embleton for the real
possibility that her symptoms may interfere with her ability to earn income and
accrue pension benefits over the next five years.

Cost of Future Care

[78]        
It is not unreasonable for Ms. Embleton to continue to use
over-the-counter medications to manage the headache and neck symptoms that may
continue in the future. An award of $1,000 would be reasonable in that regard.
Likewise, it is not unreasonable for her to have access to a gym pass at $480
per year for the next five years. An award of $2,000 would be adequate for that
future cost.

[79]        
Ms. Embleton has tried and rejected sleeping medication, and no
award for its cost in the future should be made. The cost of the extended
mirrors for her vehicle is very modest – in my view if Ms. Embleton truly
felt that those mirrors were necessary for her to safely drive her car, she
would have already bought them. She has not, and from that I infer that Ms. Embleton
does not actually need the mirrors. I would make no award for them.

[80]        
For the reasons noted above, I make no award for ongoing housecleaning.

Loss of Housekeeping Capacity

[81]        
Ms. Embleton’s evidence at trial was that she felt too tired at the
end of the day to do all of her house cleaning. It is for that reason that she
has her house cleaner come in twice a month. I have already concluded that she
would likely have had the house cleaner in twice a month even if the accident
had not happened. Ms. Embleton did not assert that for reasons
attributable to the accident she is unable to do any other aspect of her normal
housekeeping tasks. These would include laundry, cooking, shopping, making the
children’s school lunches, et cetera. I am unable to conclude, therefore,
that Ms. Embleton has suffered a loss of housekeeping capacity.

Conclusion

[82]        
Ms. Embleton is entitled to an award as follows:

[83]        
The parties may apply for directions if they cannot agree upon Ms. Embleton’s
net income loss.

[84]        
Subject to an application concerning a pre-trial offer to settle, Ms. Embleton
shall have her costs on Scale B.

“P.J.
Rogers J.”
The Honourable Mr. Justice Rogers