IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130418

Docket: 19558

Registry:
Cranbrook

Between:

Chastity Nelson

Plaintiff

And

Tim Coyle

Defendant

– and –

Docket: 21531

Registry:
Cranbrook

Between:

Chastity Nelson

Plaintiff

And

Michael Erwin

Defendant

– and –

Docket: 22171

Registry:
Cranbrook

Between:

Chastity Nelson

Plaintiff

And

Tim Chapman

Defendant

Before:
The Honourable Madam Justice Fenlon

Oral Reasons for Judgment

[1]            
THE COURT: The plaintiff, Chastity Nelson, seeks damages for
injuries sustained in three car accidents. The defendants, Messrs. Erwin,
Coyle, and Chapman, admit liability for the accidents. In issue are, first, the
effect of the injuries caused by the defendants’ negligence and, second, the
quantum of damages.

BACKGROUND

[2]            
Ms. Nelson is now 33 years old. She was 28 at the time of the first
accident on February 24, 2008. That collision occurred as she was travelling
uphill and rounding a bend on an icy road. The back end of Mr. Coyle’s
truck, which was travelling downhill in the opposite direction, slid into the
driver’s side front wheel of Ms. Nelson’s vehicle.

[3]            
The second accident occurred just over two years later, on July 22, 2010.
Mr. Erwin was distracted, reading a movie marquee, and rear-ended Ms. Nelson’s
vehicle which was stopped at a red light. Her car was pushed into the car in
front of her, driving it into the intersection.

[4]            
The third accident occurred in Vernon. Mr. Chapman rear-ended Ms. Nelson’s
vehicle as it sat stopped behind a delivery truck which was waiting to make a
left turn. After this accident, Ms. Nelson’s vehicle was written off. She
has been without a car since.

WHAT INJURIES DID MS. NELSON SUSTAIN IN THE THREE ACCIDENTS?

[5]            
The plaintiff claims she sustained soft tissue injuries to her neck,
upper back, right shoulder, and lower back. She claims she has developed
chronic pain in her upper back, neck, and shoulder.

[6]            
In accordance with Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32,
I must determine, first, whether the accidents are the cause of Ms. Nelson’s
current problems and, second, whether there were pre-existing injuries and
therefore "a measurable risk that the pre-existing condition would have
detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence."  The latter question is relevant, of course,
because a plaintiff is entitled only to be restored to his or her original
position.

[7]            
There is little dispute about the nature of Ms. Nelson’s injuries. The
defendants admit that the plaintiff suffered soft tissue injuries in her neck
and lower back in motor vehicle accident number one, a minor aggravation of her
neck injuries in motor vehicle accident number two, and further aggravation to
neck, upper back, and right shoulder injuries in the third accident.

[8]            
Both the physiatrist called by the defendants, Dr. Laidlow, and the
anaesthetist pain specialist called by the plaintiff, Dr. Lau, agree that Ms. Nelson
sustained musculoligamentous strain, that is, soft tissue injuries, to the
cervical spine, mid-back, and lower back in the first accident, with the lower
back pain due to that accident resolving fairly quickly.

[9]            
They agree that the neck and shoulder pain and mid-back injuries
persisted and were aggravated by the second and third accidents. They also
agree that the pain and these conditions have become chronic. Muscle tightness
leading to headaches is also noted.

[10]        
Dr. Laidlow described these injuries as Whiplash Associated
Disorder Type II. Dr. Lau described them as possibly fibromyalgia, soon to
be called widespread pain disorder. Little turns on the names given to Ms. Nelson’s
condition, however. Whether called WAD, fibromyalgia, or widespread pain, the
effect on Ms. Nelson is the same.

[11]        
While Dr. Laidlow questioned whether the second accident caused the
plaintiff’s right arm weakness given the timing of the onset of that problem, I
find it more probable than not that the shoulder and right arm pain were
contributed to and caused by the second and third accidents.

[12]        
Dr. Laidlow understood the plaintiff did not experience right
shoulder pain until a year after the second accident in August 2011, but Dr. Lau
noted an emergency room visit for neck and right arm pain on October 27, 2010,
as well as regular right shoulder pain reports on visits to her GP in 2010. Dr. Lau
therefore held the opinion that the second accident caused an injury to that
area which was aggravated by the third accident. I accept her evidence in this
regard.

[13]        
I will address at this point allocation of responsibility for the plaintiff’s
injuries. These are indivisible injuries. There is no contributory negligence
on the part of the plaintiff. There may nonetheless be issues among the
defendants that require allocation of responsibility.

[14]        
The blameworthiness of the defendants relates to the injuries resulting
from their negligence, that blameworthiness does not necessarily correspond to
the severity of the collisions. Having considered all of the evidence, I
allocate 50% of the plaintiff’s injuries to the first accident, 20% to the
second, and 30% to the third.

[15]        
I have focused on Dr. Laidlow and Dr. Lau’s opinions because
they were the only medical doctors who examined Ms. Nelson after all three
accidents. I note, though, that reports prepared by Dr. McDougall for the
defendants and by Dr. Oppel for the plaintiff before the second and third
accidents occurred were consistent with the opinions of Drs. Lau and Laidlow as
to the effect of the first accident.

[16]        
The medical evidence from both sides is that while the plaintiff’s
injuries due to the accidents are chronic, there is potential for some
improvement with proper treatment.

PRE-EXISTING CONDITIONS

[17]        
There are three significant features of Ms. Nelson’s health before
the accident that must be considered. First, in 2000, the plaintiff hurt her
lower back while a student in a nursing assistant program. She was transferring
a patient when her back wrenched, and she felt nerve pain radiating into her
right leg. Sciatica developed, and the plaintiff’s injury was addressed by the
Alberta Workers’ Compensation Board.

[18]        
The plaintiff admits that this lower back condition has never fully
resolved. It surfaces intermittently. She has stiffness in her lower back
resulting from the 2000 workplace injury. It has affected the rest of her back
at times.

[19]        
Ms. Nelson’s family doctor revealed in August 2005:

Her neck goes out and hurts,
one day so bad that she was down on the floor and not able to get up. This
happened three times in the last two years.

[20]        
The second significant pre-existing condition relates to a strain Ms. Nelson
suffered in her upper back while baling hay in the summer of 2003. I find that
strain had largely resolved by 2005, although in Ms. Nelson’s words to her
family doctor, it was “not entirely better”; she just learned to live with it.

[21]        
The third significant pre-existing condition is Ms. Nelson’s
psychological condition. She was, it is fair to say, somewhat psychologically
fragile even before the three accidents occurred. Ms. Nelson had been
abused as a young child and attempted suicide at age 13. By 15, she was
pregnant with her first daughter, Shaylene. She often reported feeling socially
isolated to the various medical practitioners she saw.

[22]        
All of these conditions were part of Ms. Nelson’s original position.
They do not flow from the accidents, and Ms. Nelson is therefore not
entitled to be compensated for either the pain and suffering related to those
injuries or reduced earnings or additional care costs that flow from them.

ASSESSMENT OF DAMAGES

(a)           
Non-pecuniary Damages

[23]        
In determining the amount of non-pecuniary damages, the factors set out
in Stapley v. Hejslet, 2006 BCCA 34 are to be considered (para. 46):

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering;

(f)         loss or impairment of life;

(g)        impairment of family, marital and social
relationships;

(h)        impairment of physical and mental abilities; and

(i)         loss of lifestyle.

All of the factors listed by the Court of Appeal in that
case come into play in determining non-pecuniary damages in the case at bar.

[24]        
The plaintiff is a young woman, 28 when the first accident occurred. The
pain and severity of that pain has been significant and persistent. The
injuries have affected all areas of her life. Ms. Nelson had some physical
and psychological challenges before the three accidents, but she was managing. She
managed to work, to care for and support her two daughters who were 5 and 12 at
the time of the first collision.

[25]        
Like many mothers of young children, her recreational and social
activities were limited. Ms. Nelson exercised regularly, running and using
a stationary bike and elliptical trainer she had purchased for use at home. She
and her children were involved with the SPCA. Ms. Nelson’s face lit up
when she described how much she used to enjoy walking the dogs at the shelter,
something she can no longer do.

[26]        
I found Ms. Nelson to be a credible, straightforward witness who
did not exaggerate her symptoms. A number of doctors commented on her approach
to life’s difficulties, including her pain. She pushed herself and got through
it.

[27]        
After the first accident, it is evident from her own testimony and from
the medical records and opinions, that Ms. Nelson did just that. After
five weeks away from work, she tried a gradual return-to-work program but could
not manage. She took more therapy and tried again in June, but by July 2008, it
was clear she could no longer handle the work at Bul River Mine where she had
been employed as a labourer for two years before the first accident.

[28]        
Although the Record of Employment refers to Ms. Nelson being let go
because of lack of work, I find that the termination of her employment there
was due to the injuries. It may be that the Record of Employment contains an
error or it may be that the Record of Employment was simply noting candidly
that there was no light work available that suited Ms. Nelson in her
present condition.

[29]        
Ms. Nelson was motivated to get well. She tried doing aerobic
exercise six days a week and resistance training four days a week. She followed
a home exercise routine using Thera-Bands. Despite repeated attempts to find
work, she has remained largely unemployed. Her mood deteriorated over 2009 and
2010. After the second accident in July 2010, Ms. Nelson tried returning
to college to do a human services course but found taking notes strained her
neck. She fell behind, and when her 15-year-old daughter, Shaylene, became
pregnant, Ms. Nelson fell even further behind dealing with this family
crisis. Finally, she gave up and left the program.

[30]        
By June 2011, Ms. Nelson was seeing a psychiatrist. I have his name
noted as Dr. Shope, but that may not be correct. Nothing turns on that. She
was seeing him for significant depression.

[31]        
A move to Vernon in summer 2011 in search of work and a new start led to
a third accident on August 30, 2011, and by the Mother’s Day weekend in May
2012, Ms. Nelson found herself without a job and alone. Shaylene had moved
out to live with her boyfriend. Ms. Nelson did not have the financial or
emotional resources to care for Ashley. Ms. Nelson repeatedly borrowed
food from a neighbour in order to pack Ashley a lunch to take to school. She
asked her mother for help, and she asked Ashley’s father for help. She had been
separated from Ashley’s father since 2006 and described him as a drug addict.

[32]        
Neither Ms. Nelson’s mother nor Ashley’s father were willing or
able to help. Ms. Nelson describes herself at that point as having a
breakdown. In desperation, she phoned the Ministry of Children and Families. Immediate
arrangements were made to place Ashley in foster care where she has been ever
since. Ms. Nelson sees her daughter after school on Tuesdays and Thursdays
and on the weekends. The Ministry has assigned a social worker to assist in
trying to reunite mother and daughter. The plaintiff’s hope is that the Court
will award sufficient damages so that she can prepay her rent, stock up on
groceries, lease a larger place, and have Ashley living with her again and
hopefully Shaylene after the present school year finishes.

[33]        
I refer to Ms. Nelson’s hopes only because they illustrate how
basic are the things that constitute enjoyment of life for Ms. Nelson.

[34]        
While Ms. Nelson had some physical and psychological challenges
before her injuries, she managed to work, to provide, and to care for her
children. The accidents collectively overwhelmed her ability to cope and push
through. By May 2012, she was, it is fair to say, defeated.

[35]        
Despite an aversion to taking medication and a preference for natural
methods of pain control, Ms. Nelson takes significant doses of
over-the-counter painkillers. She uses six Tylenol-3 a day and also Ibuprofen
daily.

[36]        
I find Ms. Nelson has suffered significantly from her physical
injuries due to the accidents. She has also suffered psychologically because of
the loss of Ashley and the loss of financial security when her injuries
prevented her from working.

[37]        
The plaintiff is entitled to be compensated for that pain and suffering
and loss of enjoyment of life experienced up to trial and following trial, but
what of the future?  Ms. Nelson is a fighter. She is motivated to improve
her situation and has been working with the Ministry counsellor to pull her
life back together. Dr. Lau and Dr. Laidlow both recommend therapies
they believe will improve Ms. Nelson’s physical and psychological
symptoms.

[38]        
I agree with the defendants’ submission that brighter days lie ahead for
Ms. Nelson with the right treatment and return to employment.

[39]        
Having set out the factors I consider in assessing damages, I turn now
to the amount.

[40]        
Counsel for Ms. Nelson relies on Soligo v. Turner, 2001 BCSC
205 and Zen v. Readhead, 2011 BCSC 190 in support of damages under this
head of $150,000. I conclude that the magnitude of the injuries and their
impact on the plaintiffs in those two cases were significantly greater than in
the case at bar.

[41]        
The defendants submit that an award of $50,000 to $60,000 is reasonable,
relying on Dakin v. Roth, 2013 BCSC 8, Prempeh v. Boisvert, 2012
BCSC 304 and Kuskis v. Hon Tin, 2008 BCSC 862.

[42]        
In Dakin v. Roth, Mr. Justice Cole awarded $45,000 for
non-pecuniary damages. The plaintiff in that case claimed similar injuries, but
the case is of limited application because the plaintiff was found by the Court,
at para. 54, to be a poor historian who also exaggerated some of her
injuries.

[43]        
I have considered all of the cases submitted by both sides. Ultimately,
of course, each case turns on its own facts. I conclude that an award of
$85,000 is appropriate in this case.

(b)           
Past Wage Loss

[44]        
Past wage loss involves a hypothetical. What would the plaintiff have
earned if she had not been injured in the car accidents?  The burden of proof
is therefore substantial possibility with damages to reflect the likelihood or
chance of the loss occurring. That likelihood may range from zero to 100%, that
is, from no chance to a virtual certainty.

[45]        
At the time of the first motor vehicle accident, the plaintiff had been
working for two years full-time at Bul River Mine. She worked part-time in the
mill and part-time doing labouring jobs. She had no experience in the mining
industry but was described by her supervisors as a hard worker who was willing
to learn.

[46]        
Ms. Nelson did not find the job at Bul River to be an easy one. She
was one of only a few women and felt harassed at times. The commute was long
and the work hard. In the year before the first accident, she had looked into
jobs with Teck Coal at the Elk River Mine. I find, however, that she would have
stayed on at Bul River if a job with Teck had not opened up. There was a ring
of truth to her fiery assertion in cross-examination that she had no choice but
to work to support herself and her two daughters even though the work was hard.
Bul River was the highest paid job she had ever held. In the three years before
she started at Bul river, Ms. Nelson earned very little:  $1,700 in 2003,
$3,100 in 2004, $1,800 in 2005. Those low earnings are explained by two facts. First,
Ashley was born in 2004. Second, Ms. Nelson was in a common-law marriage
with Ashley’s father until about the first year of her work at Bul River, and
she worked helping him with his sign business. She also helped on a  farm they
rented for a time, for example baling hay in 2003  when the injury to her upper
back first occurred.

[47]        
I find there is close to a 100% chance that Ms. Nelson would have
earned about $38,000 based on her income in 2006 and 2007 at Bul River until
the mine closed in the fall of 2009. After that, I find it likely she would
have applied to Elk River, but employment there was far from a certainty. The
evidence at trial established that less than 10% of those who applied were
hired. Ms. Nelson had some experience behind her, but there would have
been many similar applicants after Bul River closed.

[48]        
I find there is a 50% chance that the plaintiff would have found and
held full-time work at Elk River from 2010 to the date of trial in April 2013. That
percentage chance takes into account, as well, the risk that the plaintiff’s
lower back problems would have interfered with her ability to work full-time.

[49]        
Using these assumptions and recognizing that an assessment of damages is
not a precise mathematical calculation, I award the plaintiff damages of
$115,000 gross income for past wage loss in the more than five years since she was
first injured. That number is loosely based on the following.

[50]        
Using Mr. Karp’s table (the actuary who testified on behalf of the
plaintiff), the difference between earnings at a mine and actual earnings in
those years was $28,304 in 2008, and $26,622 in 2009. Now, I recognize, and I
note parenthetically, that I am rounding up for 2009 since the mine closed
roughly after the first three quarters, but I intend to do so. Again, this is
not a precise mathematical calculation. The sum of those two figures is $55,000.
Again, I am rounding, and I intend to do so. For 2010 to 2013, I take 50% of
the figures calculated by Mr. Karp. His total number was $120,562, half of
which is $60,281, rounding down to $60,000. Adding $60,000 and $55,000, I come
to the figure of $115,000. I note, of course, that this is a gross figure from
which tax and EI will have to be deducted; I will leave that to counsel.

(c)           
Loss of Future Earning Capacity.

[51]        
The plaintiff asks the Court to assess damages under this head using a
mathematical approach rather than a capital asset approach, these being the two
methods identified by the Court of Appeal in Perren v. Lalari, 2010 BCCA
140. Mr. Karp was asked to calculate loss of future earnings, assuming Ms. Nelson
will be limited to lighter work. Based on recommendations of Mr. Waldie, a
vocational rehabilitation consultant who provided an opinion on suitable
employment given Ms. Nelson’s experience, training, and physical capacity,
Mr. Karp assumed that the plaintiff will find work as a dispatcher or
meter reader, two occupations Ms. Nelson has in fact shown interest in, in
the past. Mr. Karp’s calculations demonstrate that if Ms. Nelson were
to find employment in either of those occupations, she would, over her
lifetime, actually earn $30,000 to $175,000 more in present value dollars than
she would have if she worked full-time in a mining job like the one she had at
Bul River.

[52]        
Plaintiff’s counsel nonetheless submits that damages of $500,000 under
this head would be appropriate based on an assumption that Ms. Nelson’s
injuries will prevent her from working full-time and she will likely earn 50 to
75% less than she would have if the accidents had not occurred.

[53]        
With respect, I do not accept this calculation of damages because the
assumptions are not supported by the evidence. Neither Dr. Laidlow nor Dr. Lau
suggest that Ms. Nelson cannot work full-time. Dr. Nimchuk, who
prepared a functional capacity assessment at the plaintiff’s request, gave
evidence that there was nothing in his testing to suggest part-time work would
be necessary.

[54]        
Damages for loss of future earning capacity are a pecuniary head of
damages. In other words, the plaintiff must prove that there is a real and
substantial possibility that she will be out of pocket in future because of the
defendants’ negligence. While I do not accept the calculation Mr. Buddenhagen
proposes, in my view, the plaintiff has proved there is a real and substantial
possibility that she could earn less in future because of her injuries. I come
to that conclusion based on the following facts.

[55]        
First, Ms. Nelson has not completed high school. She is about a
course short.

[56]        
Second, she has taken a business course, but it is unclear whether she
obtained a diploma or qualification.

[57]        
Third, in the past she has almost exclusively worked in physically
demanding labour jobs, including shelf stocker, newspaper stuffer, garden
nursery worker, cleaner, food server, and landscaper.

[58]        
Fourth, the plaintiff’s performance on testing for general learning
ability, which is the ability to catch on, understand instructions, reason, and
make judgments, puts her in the bottom one-tenth to one-third of the working
population.

[59]        
Fifth, if Ms. Nelson cannot find work as a meter reader,
dispatcher, or something comparable, she will likely have to fall back on
physical labour. Her accident-related injuries layered on her pre-existing ones
will make holding such a job difficult.

[60]        
I find there is, therefore, a real and substantial possibility she will
have periods of unemployment due to the injuries caused by the defendants’
negligence. That loss cannot be mathematically calculated, but considering the
factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), it
is a real loss nonetheless.

[61]        
In assessing this amount, I take into account the likelihood that the
plaintiff’s condition, both psychological and physical, will improve in future.
I conclude an award of $75,000 is appropriate for loss of future earning
capacity.

[62]        
I turn to special damages only to record that no award is sought under
this head.

(d)           
Future Care

[63]        
Future care costs as set out in Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), are to be awarded where they are medically justified
and reasonable. They do not have to be medically necessary.

[64]        
The plaintiff claims future care costs of $215,000 based on the present
value of care items recommended by medical experts and calculated by Mr. Karp.
The defendants submit $10,000 to $20,000 globally would be adequate. I will
deal with each of the items in turn.

[65]        
First, home cleaning services. The plaintiff seeks two cleaners for 90
minutes twice a month. The plaintiff says she can still do her housework but
has to do it in shorter sessions than she did before and can no longer wash her
floors on her hands and knees, which she greatly prefers to using a mop. That
may seem to be a minor matter, but it is significant to Ms. Nelson. I note
the latter limitation may have been affected as well by her lower back injury
in 2000.

[66]        
I find the plaintiff is limited in doing cleaning overhead such as windows
and walls because of the injuries sustained in the three accidents. In my view,
she should be awarded some amount for heavier overhead cleaning, such as spring
cleaning of walls and windows and ceilings, but that is something that can be
addressed with 10 hours of cleaning help per year. At $24 per hour, that comes
to $250 per year, and I award that sum to age 55 when she likely would have
required some assistance with that kind of work in any event. That sum in
present value dollars is $3,740.

[67]        
Second, Dr. Lau recommended IMS, or dry-needling, to improve the
tightness in Ms. Nelson’s back. That sum was calculated by Mr. Karp
for life, but there was no evidence that the treatment would be required
regularly for life. The sessions cost $65 each. I award 12 sessions at $780. There
is no need to give that a present value because it is assumed that she will
receive those treatments immediately.

[68]        
Next, Dr. Lau recommended massage therapy if the IMS works at a
cost of $65 per session. I award damages for weekly massage therapy for six
months for a total of $1,560 under this claim. I also award physiotherapy on an
intermittent basis allowing for two sessions per year at $65 per year to age 55.
Using present value figures, I round that to $2,000.

[69]        
Next, I turn to the occupational therapy recommended by Dr. Lau. These
are for ergonomic assessments both at home and at work when Ms. Nelson
begins working. In light of her functional capacity and the difficulty she has
had in the past with neck strain in various jobs which became debilitating, in
my view, this is both justified and, to some extent, necessary. I award $1,500
for occupational therapy.

[70]        
Next, vocational rehabilitation services. I award 25 hours of assistance
in this regard. Having considered the submissions of counsel for the
defendants, it appears that the hours requested do not relate to determining
what jobs would be appropriate for Ms. Nelson; rather, those hours are
based on the need to assist her in actually finding employment. I conclude that
Ms. Nelson will need that assistance in order to find work, and much of my
award of damages in terms of loss of future earning capacity is premised on the
fact that she will in fact find full-time work. Therefore, this is both
important for Ms. Nelson and critical to the overall assessment of the
award. The occupational therapy falls into that same category. I therefore
award an additional $2,500 for vocational rehabilitation services.

[71]        
The next claim for future care costs relates to a gym membership for
life. An exercise program was recommended by Dr. Lau and Dr. Laidlow,
but Ms. Nelson worked out regularly at home before the accident. In my
view, she needs help to set up an exercise program that both accommodates her
injuries and targets a program to strengthen her and assist her in overcoming
those injuries. I therefore award five hours at $65 per hour to work with a
physiotherapist — there was no evidence about a kinesiologist or personal
trainer, but that, too, is a possibility — so that that kind of program can be
developed and Ms. Nelson can follow up a few times to make sure she knows
it and can carry on with it at home. I award $325 in this area.

[72]        
Psychological counselling. Ms. Nelson is being seen by a counsellor
through the Ministry who she says is helping her. While there is no guarantee
that that will continue after she and Ashley are reunited, there is psychiatric
counselling available through MSP and I conclude that the psychological overlay
is something which was very much part of her original position. I therefore do
not award anything for psychological counselling.

[73]        
In terms of mindfulness yoga, the defendants agree that that is
appropriate to assist Ms. Nelson in overcoming her chronic pain. They
agree that something in the range of two to five years would be appropriate. I
award three years at $850 per year. The present value of that is $2,425.

[74]        
Next, in terms of medication, there is no medical evidence as to the
appropriate dosages required by Ms. Nelson. We have only her evidence that
she is using significant amounts of over-the-counter medication at this point. It
is the expectation that use will decrease once the other treatments, especially
the IMS and mindfulness yoga, are in place, given the plaintiff’s motivation to
wean herself from painkillers. She stated a number of times that she would
prefer to use more natural methods. I therefore award a sum of $50 per year for
20 years. The present value of that is $725.

[75]        
Transportation costs were requested for the future, but I find no basis
for awarding those costs. Transportation costs are a part of everyone’s
expenses, and there is no evidence that Ms. Nelson will incur additional
costs because of her injuries.

[76]        
Next, I award $100 for the aids for daily living recommended by, I
believe it was, Mr. Brown.

[77]        
Finally, turning to the items for a memory foam pillow and mattress, I
make no award under that head, or for office equipment and computer trays and
that kind of thing. A mattress and pillow are expenses which would have to be
incurred in any event. As for the workplace items, those, it seems to me, will
be provided by the employer, and I find it probable that most employers will
have adjustable trays.

[78]        
I have spent a significant amount of time going through future care
costs because a significant effort was put into providing a report, and the
claim presented by the plaintiff was substantial. But in my view, having
considered all of that carefully, I conclude, adding up all of those items,
that the total for future care costs should be $15,655.

[79]        
The total damages comes to $290,655. It will be somewhat less than that
with the tax reduction, but it could also be somewhat more than that because I
also award court order interest on the past wage loss.

[80]        
The plaintiff is entitled to her costs at Scale B.

The
Honourable Madam Justice L.A. Fenlon