IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130529

Docket: 44548

Registry:
Vernon

Between:

Jodi Beagle

Plaintiff

And

Henry Frank
Cornelson, Deceased and the Estate of

Henry Frank
Cornelson, by its litigation representative,

Wayne Moser, and
Chrysler Financial Services Canada Inc./Services Financiers Chrysler Canada
Inc.

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

[1]            
This action involves a claim for damages arising from a motor vehicle
accident which occurred July 8, 2007 on Highway 97, a short distance north of
the town of Oyama, B.C., which part of the Municipality of Lake Country, B.C
located in the Okanagan Valley.

[2]            
The plaintiff, Ms. Beagle, was 36 years of age at the time of the
accident and is now 41 years old, married and mother of three teenage children who,
at the time of the accident were 13, 12 and 10 years old.

[3]            
Prior to the accident, the evidence discloses Ms. Beagle as an active,
hard-working and very social mother who, along with her husband Kelvin, were
very supportive of the activities of their children including sports, camping
and school activities. Ms. Beagle also played softball on a team with her
husband, played on a soccer team, assisted her husband in home renovations and
was very active, along with the rest of her family, in their church congregation.

[4]            
At all material times, Ms. Beagle has been employed by a company known
as Mascon Cable Systems, an independent cable provider, located in Salmon Arm.
Ms. Beagle has been working at Mascon since approximately 1992. As of July 2007
she was working a four day week and since late 2009 or early 2010 has been
working full-time. She is currently the office manager for Mascon where she is
primarily desk-bound, working at a computer but also necessarily moving about
and interacting with her colleagues and Mascon’s customers.

[5]            
Also prior to the accident, Ms. Beagle was a very fastidious and busy
housekeeper. She liked a “super tidy house” and stated “no one will do it like
I want it done” and so she did all of the interior house work by herself with
little help from Mr. Beagle or their children.

[6]            
Finally, prior to the accident, Ms. Beagle was generally in good health.
She had seen her family doctor on one occasion for stress or anxiety problems
due to dealings with her children at a time when Mr. Beagle was working out of
town. Also on one occasion, she recalled having experienced a “tender spot” in
her back which, as she stated in evidence, “turned out to be nothing”.

I.                
The Accident

[7]            
At the time of the accident, the plaintiff was seated in the front
passenger seat in a 2006 Pontiac Torrent, which is a small four door SUV. The
vehicle was being driven by the plaintiff’s husband, Kelvin Beagle, and their
two young daughters were seated in the back row of seats.

[8]            
Immediately prior to the accident, the Beagle vehicle was southbound on
Highway 97 and had slowed to a stop due to an accident that had occurred ahead
of them on Highway 97. Ms. Beagle had turned to her left to talk to her girls
and noticed a brown van approaching from behind “too quickly”. She “shrunk”
into her seat and pushed out her right foot to brace for the impact. Their
vehicle was struck with a significant impact by the van, pushing the Beagle’s
vehicle into the vehicle in front of them. All members of the Beagle family 
were secured by their seat belts which restrained them, however, the air bags in
their vehicle did not deploy. The value of the damage to the Beagle vehicle was
estimated at approximately $13,000. Their vehicle was not driveable and Ms.
Beagle’s parents eventually came to pick them up and drive the family back to
Salmon Arm.

[9]            
After the accident, Ms. Beagle and her family were very shocked and it
was not until later on the day of the accident after returning home that she
began to realize she was in pain. Ms. Beagle did not receive medical attention
on the day of the accident.

[10]        
The next day, Ms. Beagle was experiencing much more pain and stiffness,
primarily in her neck, right shoulder, right hip and knee. She attended her
family doctor’s office for an assessment and was seen by an associate of her
regular family doctor (Dr. Kirkman), who prescribed massage therapy for
“whiplash injuries”. She also soon began to experience headaches.

II.              
Post-Accident Symptoms, Diagnoses and Therapy

[11]        
The medical diagnoses of Ms. Beagle’s injuries are included in the
reports filed in evidence prepared by Ms. Beagle’s family doctor, Dr. Stacey
Kirkman, and by Dr. H.A. Anton, a specialist in Physical Medicine and
Rehabilitation. After a review of these reports and the others which I will
refer to below, I am of the opinion that the most reliable medical evidence was
that of Dr. Anton, whose opinions were accepted by Dr. Kirkman.

[12]        
Dr. Anton’s findings are detailed in his report of November 4, 2010
which is the same day Dr. Anton assessed Ms. Beagle’s injuries. Dr. Anton’s
opinion, on page 5 of his report was that Ms. Beagle had suffered the following
injuries in the accident:

1.         Whiplash
injuries to soft tissue structures in the neck and shoulder girdle

2.         Probable soft tissue injuries
to the area of the right lower back, hip and upper leg.

Also at p.5 of the report he
elaborated as follows:

The diagnosis that best explains Ms. Beagle’s current pain is
a myofacial pain syndrome, probably involving the right upper trapezius muscle
and possibly involving other muscles.

The term myofacial pain syndrome refers to a regional soft
tissue pain syndrome arising from muscles. Myofascial pain may develop after
soft tissue injuries like those suffered by Ms. Beagle. In that setting, the
soft tissue injury precipitates the myofacial pain. It is then perpetuated by
aggravating factors in daily life, including postures and activities that load
the affected muscle and psychological stressors.

The diagnosis that best explains
Ms. Beagle’s headaches is tension-type headache in association with her neck
pain (cervicogenic headache).

[13]        
Dr. Anton continues, on page 6:

Ms. Beagle has received extensive treatment to date and thus
far has not had much improvement. Her treatment has, in general terms, been
appropriate. However, I recommend she see a physiotherapist or kinesiologist
for assistance with the development of an exercise program. Strengthening exercises
in isolation could actually exacerbate her pain. I recommend she instead focus
on stretching exercises and postural exercise. I would also encourage Ms.
Beagle to participate in some type of general cardiovascular exercise on a more
regular basis.

I recommend Ms. Beagle be referred to a registered
psychologist for therapy focussed on her anxiety in an automobile. In addition,
I recommend she see a registered psychologist for a course of cognitive
behavioural therapy focussed on pain management.

Ms. Beagle’s prognosis is going to depend to some degree on
her response to further treatment. However, it is unlikely further treatment
will lead to significant improvement in her pain. The goal of treatment instead
will be to help her cope and function better with her pain.

The duration of Ms. Beagle’s
pain symptoms to date is a negative prognostic factor. It is my opinion she
still has the potential to improve but is not likely to become pain free. She
will probably be at risk for episodes of pain with some activities
indefinitely.

and later on page 6:

Ms. Beagle should be able to
continue working in future despite exacerbation of her pain by work.

At pages 11 through 14 of
his report, which is the medical history taken from the patient, Dr. Anton
recorded the following:

On review of systems Ms. Beagle reported her sleep now was
good when she took the amitriptyline. She felt a bit dozy for a few minutes in
the morning which she attributed to amitriptyline but generally felt rested.

Ms. Beagle told me that her energy was adequate for her
day-to-day activities. She could be tired at the end of the day but she
attributed that to the fact that she had a busy life as a mother and working
full time.

Ms. Beagle told me she had a bit of stiffness in the back and
neck in the morning but it usually cleared up by the time she took a shower.

…

I asked Ms. Beagle about other joint problems. She had some
symptoms in the right knee which she attributed to previous surgery for an
anterior cruciate ligament injury. Those symptoms did not interfere with her
participation in activities such as playing soccer.

…

Ms. Beagle told me that she played soccer once per week,
either in a league or casually. She continued to do that. She tolerated playing
but did notice she could have more pain the following day.

Ms. Beagle told me she was not
doing the physiotherapy exercises any more because they seemed to hurt more
than help. She often stretched during the day, mainly doing what felt most
comfortable.

[14]        
Ms. Beagle’s family physician, Dr. Kirkman, stated that Ms. Beagle is
unlikely to fully recover given that it had been, at the time of his report in
October of 2012, over five years since the accident. I also note from Dr.
Kirkman’s report that on January 17, 2012, he advised Ms. Beagle “to start a
gym program with Heather Stanton of ProActive Fitness” and later also suggested
kinesiology support.

[15]        
Ms. Beagle also paid a visit to Dr. Ann Piroli in June of 2010 which
resulted in a report from Dr. Piroli dated July 12, 2010 which was described as
a “Psychological Assessment Report”. Dr. Piroli has, for several years, been conducting
neuropsychological assessments and has practiced in the area of Cognitive
Behavioural Therapy. Dr. Piroli firstly noted Ms. Beagle’s self-reporting that
she had been highly stressed prior to the accident due to the pressures of
raising a family while working almost full time. After referring to the notes
of Dr. Kirkman regarding Ms. Beagle’s medical visits following the accident,
Dr. Piroli came to several conclusions, which I have summarized as follows:

Ms. Beagle has developed an anxiety specific to being in a
car which is directly attributable to the accident. Ms. Beagle reported that
she “does not think she has avoided driving since the accident but, as a driver
she said she is more alert”.

Ms. Beagle has not developed any depression or Post Traumatic
Stress Disorder as a result of the accident.

Ms. Beagle has been experiencing pain since the accident and
she would benefit from “some cognitive behavioural strategies to better manage
her pain. Such strategies would include relaxation techniques, learning to pace
and prioritize activities, etc.”

Ms. Beagle’s anxiety as a result
of being in an automobile will likely remain at the same level without
psychological treatment.

[16]        
I also note that Ms. Beagle told Dr. Piroli that she had continued to
work since the accident and had not missed any work except for some visits to
doctors and that she “continues to play soccer and feels better when she’s
actually playing.” Elsewhere Ms. Beagle mentioned that, since the accident, she
does experience pain after attempts to play soccer since the accident.

[17]        
Also, I note that Dr. Anton and Dr. Pirelli do not recommend continued
massage therapy and instead recommend a comprehensive exercise program.

[18]        
In the over five years since the accident, Ms. Beagle has sought out and
received many types of treatment, including pain management, massage therapy,
chiropractic treatment, occupational therapy, physiotherapy, yoga, trigger
point injections, acupuncture, prolotherapy and more. Ms. Beagle stated that
massage therapy has been the most effective therapy but the relief provided by
massage therapy was of short duration. She was continuing to receive massage
therapy as of the date of the trial. Many of the treatments which Ms. Beagle
undertook were for very short periods of time save for the massage therapy,
which is not considered a rehabilitative treatment but does provide temporary
relief from pain.

[19]        
Chiropractic treatment was not helpful.

[20]        
Ms. Beagle received physiotherapy on 15 occasions between October 2008
and February 2009 when that therapy was discontinued. Again, Ms. Beagle stated
that the treatment did, at first, provide temporary relief only and some of the
exercises recommended by the physiotherapist worsened the pain, specifically,
she testified that “[the physiotherapist] wanted me to exercise and it started
hurting”. In spite of the advice of Dr. Anton, in particular his recommendation
in November 2010 that Ms. Beagle seek out the assistance of a kinesiologist or
a physiotherapist to develop an exercise program including cardiovascular
exercise and stretching, she has not done so. According to the records
exhibited as part of Ms. Beagle’s claim for special damages, the only exercise
she has undertaken which could be considered as recommended by Drs. Anton and
Kirkman would be gym membership invoices in early 2012 which amounted to a cost
of less than $200 and some recent participation in yoga. It does not appear as
though Ms. Beagle has undertaken a comprehensive exercise program as
contemplated by Dr. Anton.

[21]        
Ms. Beagle was also referred by her family doctor to Dr. Etheridge, a
pain specialist, who, according to Ms. Beagle, provided her with various
injection treatments, including prolotherapy, which is also known as
“proliferation therapy”, “regenerative injection therapy” or “proliferative
injection therapy” which, she stated, provided temporary pain relief lasting up
to 4 to 6 weeks. The prolotherapy provided only partial relief, not total pain
relief and also did not alleviate any of her headaches. There was no expert
evidence tendered at trial from Dr. Etheridge.

[22]        
Ms. Beagle testified that the pain she has been experiencing since the
accident has not subsided save that the pain in her right hip and knee resolved
at some point between 6 months and a year after the accident. The pain she
experiences in her right shoulder, arm and right side of her neck have
continued to plague her. Her headaches are similarly bothersome and she testified
that she feels that her progress has stagnated.

[23]        
In October of 2011, Ms. Beagle was also assessed by Danielle Ponder, an
occupational therapist, who prepared a “Cost of Future Care Analysis”. In her
report, Ms. Ponder referred to her interview with Ms. Beagle and to
questionnaires filled out by Ms. Beagle “to gain more information about how she
perceives her pain to affect her in her life functions.” Included in the report
by Ms. Ponder are the following assessments:

Mrs. Beagle does not have any difficulties with her mobility.
She stated that prior to the accident she used to run (in soccer). She does not
run any longer due to the pain and discomfort experienced in her neck after the
game. She did not find the pain was worth playing the game.

She did not think that there was anything in her job that she
could not do and if there was she would ask someone to assist, e.g. putting the
water jug in place and packing a box.

She tried the gym but it didn’t really work out for [her].

Prior to the accident Mrs.
Beagle reported that she played soccer but that most of her leisure time was
used running errands for her children. Since the accident she stated that this
has not changed a lot and because her children are older she does not have to
do as much of the physical “running around”.

[24]        
Regarding Ms. Beagle’s comment that the gym “didn’t really work out for
me”, I note that her assessment by Ms. Ponder was in October of 2011. The
records of special damages claimed by Ms. Beagle do not refer to any costs
incurred for a gym until January 31, 2012 and as stated above, the costs were
less than $200 and ended in March of 2012.

[25]        
Regarding the questionnaires of which there were seven, one test
referred to as the “McGill Pain Questionnaire” indicated a “high focus on
pain”, a Neck Disability Index resulted in a score considered “severe
disability category” while the results of others were not significant. However,
Ms. Ponder did make the following significant statement regarding the
questionnaires:

The results of the
questionnaires indicate that Mrs. Beagle has a tendency to over-rate her pain.
This does not mean that she [is] an unreliable source it indicates that her
ability to complete functional activities may be influenced by her perception
of her pain.

On cross-examination, Ms. Ponder stated that Ms.
Beagle’s “over-rating” her pain is equivalent to “exaggerating” the pain.

[26]        
In addition to the professionals seen by Ms. Beagle and referred to
above, Ms. Beagle attended sessions with a clinical counsellor by the name of Mr.
Garth Merceron five occasions between September and November 2011. Mr. Mercer’s
report referred to the assessments of Drs. Anton and Pirolli and noted the pain
issues and constraints which had been documented by those physicians. Mr.
Mercer’s treatments for Ms. Beagle included breathing relaxation strategies,
visualization exercises and a cognitive behavioural approach toward relief of
pain symptoms. Ms. Beagle stated in evidence that Mr. Mercer had taken her
driving in a car on occasion and when asked at trial if the treatments had
helped, she responded “not really”. Ms. Beagle later stated that she would like
to work on such strategies longer but could not afford the cost. Mr. Mercer’s
report included a recommendation for 10 further counselling sessions over each
of the following two years at a cost of $178 per session.

[27]        
I note that the medical-legal reports entered at trial, save for the
most recent report from Dr. Kirkman, were all prepared based on assessments
made by the doctors in 2010. The reports of Mr. Mercer and Ms. Ponder, which
dealt with counselling and a future cost of care report, were based on visits
made by Ms. Beagle in 2011.

[28]        
Ms. Beagle continues to take medication for the pain and most recently
has commenced using Nucynta which I understand is a powerful narcotic pain
killer. She also continues to use Cymbalta and Elavil for pain and to assist
her in sleeping. She is concerned that continued medication will have an effect
on her ability to perform at work although she did admit that her employer was
pleased with her performance. Ms. Beagle did say that she enjoys her work and
wishes to continue, however, she is uncertain as to whether she will be able to
continue due to her being exhausted at the end of a work day and allegedly
unable to continue with her household activities in the evening after work. Her
lack of energy at home has contributed to the family needing to become more
involved when they were not involved in the past and Ms. Beagle has been less
able to participate in recreational and personal activities due to the pain and
the exhaustion she continues to suffer.

[29]        
Although Ms. Beagle has clearly suffered pain as a result of the
accident, she has missed only three days of work as a result, is working
increased hours and has assumed additional responsibilities since the accident.
A question I must consider in these circumstances is whether Ms. Beagle is
being stoic and carrying on with her work due to financial concerns and her
determination to continue and overcome the pain and exhaustion or if she is
exaggerating the pain and other suffering she alleges have been caused by the
accident.

[30]        
Ms. Beagle testified that at age 41, with her children now active teens,
she had hope to be in a much better and healthier condition so that she would
be more able to enjoy her own activities as well as those she participates in with
her husband and family. She now feels frustrated and concerned that she will
not improve.

III.            
Claim for Non-Pecuniary Damages

[31]        
It is admitted that Ms. Beagle suffered soft tissue injuries in the area
of her neck and right shoulder which were caused by the accident. The injuries
as described by Dr. Anton and Dr. Kirkman are not significant soft tissue
injuries, however, the pain in Ms. Beagle’s neck and shoulder, as well as her
headaches, have continued for over five years. The opinion of Dr. Anton is that
further treatment is not likely to lead to a significant improvement in Ms.
Beagle’s pain and future treatment is intended to help her cope and function
with the pain. He stated that Ms. Beagle’s “main impairment at present is
chronic pain.” Dr. Anton did not go so far as to say that Ms. Beagle will never
be totally free of pain but “will probably be at risk for episodes of pain with
some activities indefinitely.”

[32]        
Ms. Beagle testified that the headaches that she began to suffer after
the accident have continued, however, are not as frequent as they were in the
few years after the accident.

[33]        
In assessing non-pecuniary damages, it is important to consider not just
the seriousness of the injury but also the effect of the injuries and the
special circumstances of the plaintiff. In Stapley v. Hejslet, 2006 BCCA
34, 263 D.L.R. (4^th) 19, Kirkpatrick, J.A. stated, at para. 45:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for non-pecuniary damages should
not depend alone upon the seriousness of the injury but upon its ability to
ameliorate the condition of the victim considering his or her particular
situation. It therefore will not follow that in considering what part of the
maximum should be awarded the gravity of the injury alone will be
determinative. An appreciation of the individual’s loss is the key and the
“need for solace will not necessarily correlate with the seriousness of the
injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada (1981),
at p. 373. In dealing with an award of this nature it will be impossible to
develop a “tariff”. An award will vary in each case “to meet the specific
circumstances of the individual case” (Thornton at p. 284 of S.C.R.)

[34]        
In assessing non-pecuniary damages in this case, I have in mind the
statements of Ms. Ponder that the one finding from the questionnaires completed
by Ms. Beagle was that she “has a tendency to over-rate her pain”. My
assessment of the whole of Ms. Beagle’s evidence is consistent with the finding
of Ms. Ponder.

[35]        
As well, there is evidence that if Ms. Beagle were to follow a prescribed
exercise regimen, including stretching and general cardiovascular exercise
under the direction of a physiotherapist or kinesiologist, there is a
likelihood that she will be better able to manage or control the pain. My
understanding of Ms. Beagle’s evidence is that although she has attempted to
undertake an exercise program in the past, she soon found the effects to be
painful and then discontinued the program. However, it may well be that she has
simply given up prematurely; while some short-term treatments are designed to
have an immediate effect, the medical opinions suggest that an individually
structured exercise program may be more helpful to her condition in the long
term. The expert evidence indicates that perseverance in such a program will likely
be beneficial to Ms. Beagle’s further recovery. This finding is significant in
that the same indicates a failure to mitigate the loss when opportunities and
advice, if followed, could well have improved Ms. Beagle’s overall well-being.

[36]        
Stoicism is a factor to consider in assessing non-pecuniary damages, ie.
a victim should not be penalized for attempting to continue with activities,
including work, while facing pain or other injury-caused limitations. I suspect
that in this case Ms. Beagle is persevering and attempting to continue to be
active in spite of the pain but I am of the opinion that the pain is not as
debilitating as she suggests.

[37]        
Counsel for Ms. Beagle has provided me with several authorities with
awards for non-pecuniary damages ranging from $70,000 to $125,000 and suggests,
when considering the findings in those cases, that an award of $125,000 for
non-pecuniary damages would be appropriate. After review of the authorities,
two of those decisions referred to me by counsel for Ms. Beagle are, in my
opinion, helpful in assessing non-pecuniary damages in this case.

[38]        
The first decision is a judgment of Justice Sinclair Prowse in Grigor
v. Johal [2008] B.C.J. No. 2651, 2008 BCSC 1823. At paras. 18-21, Justice
Sinclair Prowse described the plaintiff’s injuries and symptoms:

18.       Although the plaintiff’s injuries also include a
soft tissue injury to his neck and shoulders; although that injury did cause
him pain; and although that injury resolved in 18 months to 2 years, as the
plaintiff explained in his evidence, he never considered it to be too serious:
It was more of a nuisance.

19.       Though his back symptoms did improve somewhat
during the fall of 2006 and the early winter of 2007, they then plateaued and
have not improved noticeably since. Moreover, the prognosis is that it is
unlikely that they will ever resolve.

20.       Not only have these injuries (and in particular his
back injury) interfered with his capacity to work, they have also lessened the quality
and enjoyment of other aspects of his life. For example, prior to the collision
the plaintiff was physically active – ie. ice skating and biking with his
children; playing soccer with friends; and performing such household tasks as
vacuuming. The plaintiff is no longer able to do these activities. It is too
painful to do them. In addition, with respect to the ice skating and biking, he
is concerned that he might fall and injure himself further.

21.       By the end of the day,
he is exhausted and in pain. His disposition has changed. He is frequently
grumpy and no longer has the energy to interact with his children in the
meaningful way that he did before the collision. This interaction is not
limited to recreational activities but also extends to engaging with them
verbally in quality discussions about what is going on in their lives. As his
wife put it in her testimony, the children miss their dad – they miss the
person that he was before the collision.

In many respects these statements bear considerable
resemblance to the testimony of Ms. Beagle.

[39]        
At paras. 113 and 114, Justice Sinclair Prowse concluded her decision on
the issue of non-pecuniary damages as follows:

113.     As the evidence disclosed, his back injury has
adversely affected all aspects of his life, including his sleep, his personal
life with his wife, his relationship with his children, his involvement in
sporting and recreational activities, his work life, and his ability to
contribute to household maintenance. Although the financial consequences of
this injury have been addressed through the pecuniary income loss claims, the
change to his employability has caused him stress and the ongoing pain has
reduced the enjoyability of his job.

114.     Given all of these
circumstances and having reviewed the authorities presented by counsel, I am
satisfied that general damages should be assessed at $90,000. In my view, this
is a reasonable assessment for the injury that the plaintiff has suffered and therefore,
the award is made in that amount.

[40]        
Ms. Beagle, unlike the plaintiff in Grigor, has not experienced
any significant time away from work and her employability does not appear to
have been affected, however, Ms. Beagle is clear that she continues to suffer
pain at work and perseveres.

[41]        
The second decision which is of assistance is that of Neumann v.
Eskoy [2010] B.C.J. No. 1783, 2010 BCSC 1275, a decision of Mr. Justice
Brooke. Paragraph 14 summarizes the learned judge’s findings:

[14]      I am satisfied that
before the accident and despite the asymptomatic degenerative conditions, the
plaintiff was not only functioning adequately, but also at a very high physical
level. But for the accident and the injury sustained to his neck, the plaintiff
would not have sustained the chronic pain syndrome from which he now suffers. I
am satisfied that the plaintiff’s long and commendable work history was
interrupted by the injury sustained by him in the accident, and that despite
the plaintiff’s best efforts he continues to suffer from chronic pain which is
moderated somewhat by medication. I am also satisfied that the medication
itself has an adverse aspect in addition to its therapeutic effect in that the
plaintiff now suffers from sleep apnea and fatigue. Pain and fatigue on a
continuing or chronic basis can and do dramatically impair the quality of life
and the enjoyment of life. The work that Mr. Newmann now does is well
paying and secure, but Mr. Newmann worries that he may not be able to
continue indefinitely. Worry is burdensome and can also impair the enjoyment of
life. I find that an appropriate award for non-pecuniary damages is $90,000.

[42]        
Again, the Neumann case involves a significant interruption to
the plaintiff’s employment not present in the case at bar. The decision does
find ongoing pain and an opinion that the neck pain would continue through the
foreseeable future which is similar to the prognosis in the case at bar.

[43]        
I have considered the relevant principles relating to the assessment of
non-pecuniary damages as set out in the decision of the Court of Appeal in Stapley
v. Hejslet, supra, and have considered the decisions referred to above and
others submitted by both counsel. Ms. Beagle has now suffered for over 5 years
and will likely continue to suffer in various ways. In formulating an
appropriate award I have taken into account: the emotional suffering including
frustration; the adjustments she has had to made to her lifestyle as opposed to
loss of lifestyle, the effects of the injuries having impaired Ms. Beagle’s
relationship with her husband, children and her social relationships, and the
limitations in her physical abilities. However, I find that Ms. Beagle has
likely, although not deliberately, over-stated or exaggerated her pain to some
extent. When all of the factors are considered, I find an appropriate amount of
damages for pain and suffering in this case amounts to $85,000.

IV.           
Claim for Past Loss of Income

[44]        
The parties have agreed upon past loss of income in an amount of $450
for the loss of three days of work.

V.             
Future Income Loss / Loss of Earning Capacity

[45]        
Counsel agree the decision of the Court of Appeal in Perren v. Lalari,
2010 BCCA 140 is the leading case in British Columbia in setting out the
principles to consider in a claim for future income loss or loss of earning
capacity. Madam Justice Garson stated, beginning at para. 30:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27], and

2.         It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made [Andrews at 251].

[31]      Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and
substantial possibility of a future event leading to an income loss. If the
plaintiff discharges that burden of proof, then depending upon the facts of the
case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment. That was the case in
both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[46]        
The significant words relied upon by the Court of Appeal and applied in Perren
are the requirement for the plaintiff to prove, on a balance of probabilities,
that there is a real and substantial possibility of a future event leading to a
loss of income.

[47]        
The plaintiff relies in part upon the opinion of Dr. Anton and on her
subjective concerns that she may not be able to carry on with her job in the
future. When being interviewed by Dr. Anton in the fall of 2010, Ms. Beagle
stated, according to Dr. Anton’s notes confirmed by Ms. Beagle at trial:

Ms. Beagle told me that her
energy was adequate for her day-to-day activities. She could be tired at the
end of the day but she attributed that to the fact that she had a busy life as
a mother and working full time.

[48]        
In his report, Dr. Anton stated, at p. 6:

Ms. Beagle’s main impairment at present is chronic pain. She
described some need to modify her participation in household tasks due to her
pain. She also described exacerbation of her pain by sitting required in her
work. Pain is subjective and it is not possible to objectively measure
disability associated with pain. With that caveat, it is my opinion Ms.
Beagle’s pain does at time require she modify her participation in some
activities.

Ms. Beagle should be able to
continue working in future despite exacerbation of her pain by work. If there
were a change in her work circumstances, and in particular if she had to do
more physically demanding work, her pain would increase to the point where she
would have to give up such work.

[49]         
At trial, Ms. Beagle was asked if she had consulted any medical professionals
regarding how long she could continue with her job and she advised she had not
and stated: “I just know
how I feel. I am emotionally worn out at the end of the day and sometimes need
medication.”

[50]        
Ms. Beagle also stated: “I haven’t had a doctor tell me I can’t. I have
not consulted with any medical people.”

[51]        
Ms. Beagle also testified that since 2010, she has not returned to see
Dr. Anton.

[52]        
Also at trial, when asked if she was going to continue to do her job
until she decided to retire, Ms. Beagle stated: “I would like to be able to
continue my job. Whether I will be able to or not, I am not sure. I don’t know
how much I can continue doing this job.”

[53]        
Since the accident, Ms. Beagle has continued in her job, has received a
promotion and pay raises and has gone from working 4 days to 5 days each week.
She also testified that insofar as she understands, her job is not in jeopardy
and has received no advice from her employer that her work performance has
deteriorated. There is no question that Ms. Beagle is concerned over whether
she will be able to continue in her job and I have no doubt, based upon her
evidence and that of Dr. Anton, that she does continue to suffer pain and that
pain can be exacerbated by her work and other activities. The question I have
to decide, however, is whether “there is a real and substantial possibility of
a future event leading to a loss of income”.

[54]        
The plaintiff asks me to rely on the case of Morlan v. Barrett,
2012 BCCA 66 for the proposition that in cases of chronic pain a common sense
approach can be employed to determine that the plaintiff’s condition will
worsen over time and eventually result in a future event leading to a loss earning
capacity: see Morlan at paras. 40-44. However, I find that on the state
of the medical evidence there is still possibility for improvement in Ms.
Beagle’s condition, and at this time is has not been determined that her recovery
has reached an indefinite plateau or that her pain is worsening. In these
respects I find this case distinguishable from the situation in Morlan.
Notably, Dr. Anton reported that the plaintiff will be able to continue to work
in the future. There is also no evidence that Ms. Beagle’s injuries will
prevent her from pursuing future promotions.

[55]        
What else might amount to a “future event”, leading to a loss of income
arising from Ms. Beagle’s accident injuries?   It could be a decision by a
doctor that it is in her best interest as a result of the injuries to discontinue
her work. It could also be a change in her work conditions which, based on the
evidence, appears to be extremely unlikely as Ms. Beagle testified that the
only other type of job with her employer would be as a technician in the field,
presumably installing cablevision which is not a realistic consideration. Even
if Ms. Beagle were to have to switch to a job with another employer, the
possibility that that work would be more physically demanding or that her
employer would not be able to make reasonable accommodations is purely
speculative at this juncture.

[56]        
I have concluded that although there is a remote possibility that Ms.
Beagle may have to leave her job at some time in the future due to her
injuries, such a possibility is not a “real and substantial possibility” and
most likely she will be able to continue, albeit with some pain and other
ailments until the normal age of retirement. In coming to this conclusion, I
have considered the evidence referred to above as well as the finding of Ms.
Ponder that Ms. Beagle has a tendency to overrate her pain and the failure of
Ms. Beagle to carry through with an exercise program and routine which could
help her cope with the pain. Dr. Anton, Dr. Kirkman and Mr. Mercer have all
recommended such a program to control and manage pain.

[57]        
I dismiss the plaintiff’s claim for future loss of income capacity.

VI.           
Cost of Future Care

[58]        
Ms. Beagle makes a claim for the cost of future care in relation to
several items including: medications, the cost of a gym membership and assistance
in establishing an exercise regimen to help with pain management, yoga classes
for relaxation and stretching, the potential cost of further counselling by Mr.
Mercer for anxiety issues, the cost of homemaking assistance and prolotherapy.
I agree with counsel for Ms. Beagle that it is necessary to prove that these
costs are reasonably necessary and that there is a real and substantial
possibility Ms. Beagle will incur the costs into the future.

[59]        
In support of her claim, plaintiff’s counsel has provided the Cost of
Future Care Report of Ms. Ponder referred to above and a report from an
economist, Robert Carson, opining on a present value calculation for the costs
which may be incurred in the future.

[60]        
The calculations of Mr. Carson assume a continuing expense for costs of
care through to the age of 65 and takes into consideration her age at the time
of his report, ie. 41 years of age. I am not of the opinion that Ms. Beagle
will continue to need all of the future care she has been receiving to date, especially
based upon the evidence of Drs. Anton, Kirkman and Mr. Mercer to the effect
that a continued exercise program, yoga and counselling can significantly assist
in her pain management and control in the future.

[61]        
Regarding the cost of medications, according to the report from Ms.
Ponder, Ms. Beagle is currently incurring costs of approximately $1,800 per
year including the cost of Nucyntal, the pain medication recently prescribed by
Dr. Kirkman. Based upon the evidence of Dr. Kirkman and Dr. Anton and as stated
above, the need in the future for medication can be mitigated. Accordingly I am
prepared to estimate a future cost of medications at a total of $20,000. I
appreciate this amount is speculative, just as the assessment of the cost of
medications to age 65 is highly speculative, but it is far more realistic that
with reasonable attempts to control and mitigate the pain, her reliance on
medication can be significantly reduced. Accordingly, I award the lump sum
amount of $20,000 for the future cost of medication.

[62]        
I agree that the cost of a gym membership, which is estimated at $516
annually, is a medically necessary cost. However, I am not prepared to extend
that cost out to the age of 65. Having considered the contingency that Ms.
Beagle may not follow through with this course of treatment, and that a gym
membership may have become a reasonable cost notwithstanding the accident, it
is more reasonable that this cost be awarded to cover six years. I am prepared
to award a lump sum amount of $3,000 for a gym membership.

[63]        
Regarding the claim for the cost of yoga sessions, I am satisfied that relaxation
and stretching techniques taught in yoga will be of assistance to Ms. Beagle.
Ms. Ponder stated, in her report:

Whilst an exercise program was
already recommended and quoted, participation in yoga will also be of benefit
to Mrs. Beagle. The emotional and the physical gains of yoga will particularly
assist Mrs. Beagle in maintaining her current abilities and perhaps improving
her active range of motion.

[64]        
Ms. Ponder testified that the annual cost of yoga in Salmon Arm would be
$1299. Considering a five year period as reasonable, I award the cost of yoga
for five years amounting to $6,500.

[65]        
Mr. Mercer recommended an additional 10 sessions of counseling for Ms.
Beagle at a cost of $178 excluding tax. Although Ms. Beagle did not appear to
be optimistic that such counselling could help her, according to Mr. Mercer
there is a definite possibility that the counseling, including driving lessons
to deal with anxiety issues, will be of assistance to Mr. Beagle. I award a
total of $2,000 to cover the cost of additional counselling with Mr. Mercer.

[66]        
A claim has been made for homemaking assistance. It is very important to
Ms. Beagle that her home be well maintained and cleaned on a regular basis. Ms.
Beagle had done all of that work for the family before the accident and now she
does have appropriate assistance from her husband and children but the state of
her home does not yet satisfy her.

[67]        
Clearly, her needs for assistance in homemaking will diminish in the
future as her children continue to grow and eventually “leave the nest”. She is
entitled to be awarded funds to cover the cost of housekeeping assistance to
the extent that there is a real and substantial possibility that the costs will
be incurred. While I find that there is some evidence to ground Ms. Beagle’s
need for housekeeping assistance, I am not satisfied that it will be necessary,
or in fact utilized, for the period suggested in her submissions. Based upon
the rates for cleaning set out at Tab 16 of Exhibit one and a reasonable
estimate of the assistance Ms. Beagle is entitled to, I award the costs for a
five year period of $672 per year for a total of $3,360.

[68]        
Prolotherapy provides Ms. Beagle some pain relief over 3 month periods
after injections. Based upon the costs of the same and considering the relief
provided, I also award the cost of prolotherapy (which Ms. Beagle had been
continuing to receive at trial) of $400 per year for five years or $2,000.

[69]        
Massage and chiropractic treatment have not been recommended by Dr.
Anton or Dr. Pirolli and there will be no award for the cost of the same.

[70]        
Finally, there is a claim for equipment including a lightweight vacuum,
a memory foam overlay, foam cushion and form backrest which have been
recommended but some of which Ms. Beagle had before the accident, ie. the
vacuum. I award a further $500 for equipment.

VII.          
Past and Future Loss of Housekeeping Capacity

[71]        
The plaintiff makes a separate claim in the amount of $35,000 for past
and future loss of housekeeping capacity as separate and distinct from both the
claim for non-pecuniary loss and the cost of future care. The defendant submits
that because the claim is based upon speculation, a nominal amount of $5,000
would cover any positive contingency justifying an award on this category of
loss.

[72]        
The plaintiff relies on Campbell v. Banman, 2009 BCCA 484 which essentially
reiterates and confirms the principles as set out in the earlier cases of Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652 (C.A) and McTavish v. Mac
Gillvray, 2000 BCCA 164. Here there is evidence that the plaintiff’s family
members, her husband and children, have provided some assistance in house cleaning
and with cooking, however, for the most part it appears that Ms. Beagle has
continued to perform most of these tasks albeit that she has restructured her
cleaning tasks over the course of the week and may be less efficient than she
was before the accident.

[73]        
In Gron v. Brown, 2012 BCSC 391 Brown J. summarized the approach
for compensation on this ground as follows:

[56]      …when family members
provide free labour in the form of housekeeping to replace labour costs the
plaintiff would otherwise have incurred, or lose income or incur costs
themselves, the court may compensate the plaintiff’s loss of capacity by
valuing either the cost of replacing the labour or by valuing the family
member’s lost opportunity. Where the evidence permits a replacement cost or
loss of opportunity award, the court should apply that approach. Otherwise, if
the court finds the evidence does not permit the structuring of an award based
on replacement costs, but does support a finding the plaintiff has suffered a loss
of housekeeping capacity, the court may award an assessed amount as a separate
component of non-pecuniary damages to compensate "the reasonable need of
the plaintiff for housekeeping help".

[74]        
The plaintiff has not provided the Court with a breakdown of the hours
or specific tasks that her family members have taken on as a result of her
diminished housekeeping abilities following the accident. I am also not
satisfied on the evidence that the amount of $25/hour as set out in the plaintiff’s
claim for future care costs is an appropriate rate upon which to make an
assessment of replacement cost given the unsatisfactory state of the evidence.
I am equally hesitant to make a valuation based on the loss of opportunity
approach.

[75]        
However, I accept that the plaintiff has established that to some
extent, she has been limited in performing her housekeeping and that her
capacity to maintain her home to her high standards into the future has been
compromised. Doing the best I can on the evidence available to me, and
considering that I have made a reasonable award for housekeeping assistance
under costs of future care, I assess the plaintiff’s past and future loss of
housekeeping capacity at $15,000. This amount will be added to the total
assessment of the plaintiff’s non-pecuniary damages.

VIII.        
Special Damages

[76]        
Special damages have been agreed at $8,536.

IX.           
Summary

In review, I have made the following awards:

X.             
Costs

[77]        
There has been some divided success in this claim. I will receive
submissions on costs if the parties cannot agree.

“Jenkins
J.”