IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130611

Docket: M127579

Registry:
New Westminster

Between:

Tara Neigel

Plaintiff

And

Lauren Weiler,
Carolyn Weiler,
Donna Lynn McGill and Leon Lilley

Defendants

Before:
The Honourable Madam Justice B.J. Brown

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks damages for injuries that she received in a motor
vehicle accident on June 20, 2008. Liability is admitted.

Background

[2]            
On June 20, 2008, Ms. Neigel was riding as a passenger in a vehicle
driven by her friend, Lauren Weiler. At the intersection of 60^th
Avenue and 264^th Street in Langley, their vehicle was struck on the
driver’s side by a pick-up truck. Ms. Weiler admits that the accident was her
fault.

[3]            
Ms. Neigel is 36 years old.  At the time of the accident, Ms. Neigel was
employed at Hastings Race Track, working as a groom and assistant trainer with
horses.

The Plaintiff’s Position

[4]            
The plaintiff says that she suffered injuries to her neck; upper, mid
and lower back; left shoulder; hips; and rib cage. She says that she had no
significant health problems before the collision.

[5]            
She has recovered from the majority of her injuries. Depending on the
activity, however, she continues to be bothered by pain, subsequent weakness
and decreased range of motion in her mid back, lower back, sacroiliac joint and
pelvic areas.

[6]            
Initially, after the accident, she was off work from June 21 until July
7, 2008. She then returned to work at the racetrack until September 15, 2008
when the work, which is seasonal, ended. She returned to work in the spring of
2009 at the racetrack. She worked there until October 2009 when the season
ended. She also worked at the race track from February 2010 to August 2010. In September
2010, she returned to Simon Fraser University (“SFU”). At the time of the trial
she was still attending SFU, pursuing a science degree.

[7]            
While she attends SFU, she also works part time at a dental office. Furthermore,
she has done some barn work on a part-time and casual basis in 2010 and 2011.

[8]            
The plaintiff says that before the accident, she intended to become a
horse trainer. Working with horses is heavy physical labour, however, and she
found that her injuries continued to bother her. Although she tried to return
to her pre-accident activities, she ultimately found that she was simply unable
to do so. She thus concluded, albeit reluctantly, that she would not be able to
continue with her work as a groom or horse trainer on a permanent basis and that
she would have to retrain herself. Accordingly, she returned to SFU in the hope
of becoming a pharmaceutical sales person in the equine industry.

[9]            
The plaintiff says that the appropriate range of damages for
non-pecuniary injuries is from $65,000 to $150,000. She seeks an award between
$85,000 and $120,000.

[10]        
With respect to past wage loss, she seeks an award of $1,600. Further,
she seeks the nominal amount of $1,000 for a loss of opportunity to earn income
from the track during the 2008 and 2009 off-seasons. For 2010 and 2011, she
seeks $10,000 per year. She has returned to school because of her injuries and
is only able to work part time.

[11]        
Also, the plaintiff seeks an award of $17,393.09 for special damages.
After receiving payments from ICBC, the plaintiff says that $14,284.11 remains outstanding.

[12]        
The plaintiff further argues that she has suffered a loss of future
income earning capacity, as she is no longer able to work as a horse trainer.
She acknowledges that there is a wide range of earnings for horse trainers,
particularly for those without a track record. She says that a fair amount
would be in the range of $80,000 to $150,000.

[13]        
Finally, the plaintiff seeks $15,771.87 for cost of future care.

The Defence’s Position

[14]        
The defence challenges the extent of the plaintiff’s injuries. The
defence says that she suffered, at most, soft tissue injuries and that the
ongoing complaints of mid back pain are due to chronic back pain which Ms.
Neigel suffered from before the accident.

[15]        
The defence further argues that the plaintiff failed to mitigate her
damages because she did not pursue gym, chiropractic and personal training. Nor
did she pursue regular exercise, as recommended by her various treatment
professionals. The defence says that we will never know if the plaintiff could
have fully recovered had she continued to exercise as she was instructed. On
that basis, the defence says that any amount awarded for non-pecuniary damages
must be reduced to reflect her failure to mitigate.

[16]        
With respect to the loss of opportunity to become a horse trainer, the
defence challenges the veracity of that intent. It also says that after she
receives her Bachelor of Science degree, Ms. Neigel can expect to make more
money as a pharmaceutical sales representative than she would have made as a
groom or horse trainer.

[17]        
The defence finally says that any loss of opportunity or capacity should
be accounted for in non-pecuniary damages. In that regard, it says that the
appropriate range for non-pecuniary damages is $38,000 to $44,000, minus 15%
for failure to mitigate.

[18]        
The defence argues that if the court makes an award for loss of capacity,
it should be for one year’s earnings in the amount of $14,814.

[19]        
With respect to past wage loss, the defence points out that the
plaintiff seeks an award for undeclared income. The defence argues that she
should not be rewarded for failing to declare income and pay income tax. In
addition, the defence argues that there was no documentary evidence to support
this claim. Overall, the defence says that her past wage loss is limited to
$1,600.

[20]        
As for special damages, the defence argues that the plaintiff would have
returned to school to finish her degree in any event and that the amount
claimed as tuition should not be awarded.

[21]        
Lastly, with respect to future care, the defence argues that a
reasonable amount would be ten sessions with a personal trainer, or $600.

[22]        
In total, the defence argues that Mr. Neigel should be awarded
$49,776.44.

The Plaintiff’s Evidence

[23]        
The plaintiff testified that she had been riding since she was seven or eight
years old. She owns her own horse, Pip, a thoroughbred hunter/jumper. She has
owned him for approximately 11 years. Before the collision, Ms. Neigel rode Pip
in horse shows, although she has not participated in any horse shows since the
collision.

[24]        
Further, before the accident, Ms. Neigel enjoyed running, skiing and
reading. She and her friends enjoyed the normal active life of young adults.

[25]        
Although Ms. Neigel had attended some post-secondary education,
initially with the goal of becoming a vet, she had decided that this was not a
realistic goal by the time of the accident.

[26]        
In 2005, she started at the Forster stables at the Hastings Racetrack,
initially as a groom for four horses. Starting her day around 5:00 a.m., she
would fill hay nets, remove bandages, start cleaning stalls, fill tubs of
water, brush and tack the horses, and bandage their legs. While the horses were
being exercised by the exercise rider, she would clean the stalls and put down
new bedding. When the horses finished their exercise, she would, among other
things, brush them, pick their feet, go over their legs, and check for health
problems. The track season is from the end of January until October or
November, depending on the season.

[27]        
In 2006, she was still attending post-secondary schooling at the
University of the Fraser Valley. Her goal was to complete her Bachelor of
Science degree. She was also working part time for the Forsters as a groom.

[28]        
Her position at the Forsters evolved over time and she eventually became
a barn manager. As manager, she scheduled horses, hired staff, oversaw the work
of farriers and vets, and ordered feed. She also continued to groom four to five
horses.

[29]        
Her last university course prior to the motor vehicle accident was in
the winter of 2008. She did not intend to return to university in the fall of
2008; rather, she had decided that she wanted to become a race horse trainer. To
do that, she had to complete an apprenticeship and write a trainer’s exam. She
eventually qualified as a trainer in 2010. She has trained only one horse,
namely her girlfriend’s horse in 2011. That horse did reasonably well. Out of
five races, it won once, came in second once, and came in third another time.

[30]        
On the day of the collision, Ms. Neigel and her friend, Lauren Weiler,
were going to Langley to see Pip. She was wearing her seatbelt and was looking
to the right when the vehicle she was in was struck from the left. It was a fairly
significant accident in that a small car was struck by a large truck. Immediately
after, while Ms. Neigel was still in the vehicle, she had difficulty
breathing. She was able to get out of the vehicle, although she was very
shocked and felt shaky and nauseated.

[31]        
She found that every muscle hurt the next morning, so she went to the
Glover Medical Clinic and saw Dr. Matthews. She had pain in her neck, her left
shoulder, between her shoulder blades, in her rib cage, in her mid and lower
back, and in her pelvis and hip area. She had some headaches initially, but
these did not last long.

[32]        
The achiness subsided after the first couple of weeks. Her pain was
mainly in her left shoulder, between her shoulder blades, in her upper and
lower back, and in her pelvis and hip. She received physiotherapy treatment, although
she did not find that it was helpful, and she found temporary relief from
massage therapy. She stopped attending these treatments, however, because she
could not afford them.

[33]        
She continued to work at the track that year, but she continued to have
pain and found the job very difficult even though she had help from other
grooms.

[34]        
Although she did not work during the off-season, she returned to the
track the next season starting March 15, 2009. In May 2009, she changed to a
different barn, the Gilker barn. While working for the Gilkers, she acquired
her trainer’s license. She was able to perform all of her duties, although it
took her longer than it would have before the accident.

[35]        
She also found that she was not able to ride Pip herself, as she did not
have enough strength and would experience pain if she tried to ride.

[36]        
She first saw Dr. Hershler on October 20, 2009. He suggested
chiropractic treatment. Ms. Neigel found that the chiropractic treatment helped.
In April 2010, she returned to Dr. Hershler, who noted improvement and
suggested that Ms. Neigel attend a gym and receive personal training to
increase her core strength. Following these suggestions, Ms. Neigel got a gym
membership and attended the gym with a personal trainer, Cindy Nonis.

[37]        
Although she continued to have daily pain in her upper and lower back,
pelvis and hips, she found that working out at the gym helped.

[38]        
In early 2010, she decided that she had to change her occupation goals. Despite
her efforts to return to her pre-accident activities, she continued to have
pain and she concluded that she would not be able to continue with the heavy
physical work involved in horse training. Accordingly, she decided to finish
her Bachelor of Science degree, with a view to pursuing a pharmaceutical sales
career in the equine field.

[39]        
In 2010, she stopped chiropractic treatments. She instead exercises at
home on her own because she cannot afford chiropractic treatments or a gym
membership and personal trainer. She stretches daily and exercises on an
exercise ball two to three times per week, depending on the pain. However, she
does not find that it is the same as going to the gym and she does not see a
lot of improvement from these exercises. She
says that if she had the funds to do so, she would return to chiropractic
treatment, massage therapy and the gym with a personal trainer.

[40]        
At this time, although her headaches have improved, some of her pains
have become worse. Her neck still gets quite tense, and she experiences pain in
her left shoulder a couple of times per month. She also has pain between her
shoulder blades and in her lower back, hips, and pelvis. As a result, she finds
sitting and studying for long periods to be difficult, though some days are
better than others.

[41]        
She also has suffered from anxiety and depression after the accident. Before
the accident, she was treated for situational depression related to
relationship stress and took antidepressants. Following the motor vehicle
accident, however, she was very depressed because of the pain and because she
was not able to do the activities that she had before. She was again prescribed
antidepressants. Dr. Matthews told her that antidepressants can also help
with pain.

[42]        
Since returning to school at SFU, she has been working part time at a
dental office. She works Fridays and Saturdays as a receptionist. She also cleans
the rooms and sterilizes equipment. Further, she worked as a groom in the
summer of 2011.

[43]        
Before the motor vehicle accident, she had been to the doctor once for
an ache in her upper back, which occurred when she was riding. She says that
although the pain is in the same area, it is not at all the same type of pain
she experiences now.

[44]        
Ms. Neigel’s injuries from the motor vehicle accident have affected her
enjoyment of life. They affected her ability to ski. In addition, she is not
able to run, which is something she often did once or twice a week (and
sometimes six times per week) before the accident. Now, she can only run for
five to ten minutes, and only very slowly.

[45]        
Also, before the accident, she would read for pleasure. It is now
painful to do so. And given that she has to read so much for school, she no
longer reads for pleasure.

[46]        
Finally, her ability to ride and control her horse has been affected.
She does not have the necessary strength and is not able to maintain proper
position.

Medical Evidence

[47]        
Dr. Ronald Matthews is Ms. Neigel’s treating family physician. From June
21, 2008, he has treated her for the injuries that she suffered in the motor
vehicle accident.

[48]        
In his July 7, 2010 report, although she continued to have ongoing
discomfort in her mid and lower back and hip, he said that Ms. Neigel had shown
slow but gradual improvement from her injuries. He anticipated that she would
continue to show improvement and that her injuries would gradually settle,
though he expected that she may have occasional flare-ups of pain in her mid
and lower back and hip. In his opinion, her symptoms related to the motor
vehicle accident, as she had no prior similar symptomatology other than the
occasional mild back discomfort. He thus considered the motor vehicle accident
to be the sole or main cause of her symptoms.

[49]        
He recommended that she continue with regular exercise through
stretching, attending the gym or engaging in related activity. He also stated
that she may benefit from physiotherapy, massage therapy or personal training
on an as-needed basis from time to time. He did not expect that she would
sustain a permanent disability. Although he anticipated that she would have
ongoing discomfort and occasional flare-ups of her mid back, lower back and hip
pain, he did not expect that these would significantly interfere with her work
or life and he expected these symptoms to gradually resolve over time.

[50]        
Dr. Matthews’ report of July 18, 2012 was more guarded. He had seen
Ms. Neigel on one occasion on May 15, 2012. He found that she had
tenderness over her upper mid back and lower lumbar areas, bi-lateral sacral
area, and upper buttocks area. Although she was able to do most activities at
that time, she was still not able to do some of the physical activities associated
with horse grooming.

[51]        
He noted that her symptoms were ongoing and that she would be able to do
most activities, although heavy or strenuous activities would not likely be
tolerated.  This would affect her ability to become a horse trainer,
particularly if heavy lifting, bending, twisting or carrying were involved.

[52]        
In his opinion, she would do well with an active and physical lifestyle,
including swimming, stretching, and other strengthening and aerobic activities.
He noted that this should be done on an ongoing basis and that she may require
massage or chiropractic therapy on an episodic basis should her symptoms flare
up. The goal would be to control and improve her symptoms.

[53]        
As her symptoms had persisted for three years, in his opinion, it is
likely that she would have some persisting symptoms on an ongoing basis,
although these symptoms should improve and become manageable with the
activities recommended. Nonetheless, as a result of these recurring and
persistent symptoms, she would require medication or therapy on an episodic
basis.

[54]        
Dr. Cecil Hershler is a specialist in physical medicine and
rehabilitation. At the request of her family physician, he saw Ms. Neigel on
three occasions: October 20, 2009, April 6, 2010, and August 28, 2012. In his
report of September 6, 2012, he diagnosed a soft tissue injury to the
mid-thoracic spine, a mechanical injury to the pelvis, and traumatic
aggravation of pre-existing degenerative changes in the spine. He said that he
could not be certain that the changes documented in the MRI of May 14, 2012
were all caused by the motor vehicle accident, as some of the changes certainly
pre-dated the accident. However, he said that it is more likely than not that
these changes were rendered symptomatic and were probably made worse by the
accident.

[55]        
It was his opinion that the injuries were caused by the motor vehicle
accident. She did not have similar symptoms before the accident.

[56]        
As to prognosis, Dr. Hershler said that the combination of chiropractic
treatments and exercise training with a personal trainer for a time led to an
improvement of her symptoms. Initially, he had been quite optimistic about her
prognosis. Her symptoms returned, however, as soon as she was weaned off of
chiropractic treatments and the strengthening program at the gym, forcing her
to give up horse training and return to school. Even then, she still suffered
symptoms with prolonged sitting.

[57]        
He recommended that she return to regular exercise training with a
personal trainer. He said that she should see such a trainer at least once a
week for one year and then on an ongoing monthly basis. The objective of the
training would be to increase and maintain core strength and to determine if
this leads to enhanced stabilization of the pelvis and a full range of motion
without pain.

[58]        
He said that the changes in her lumbar spine provide a reason for the
persistence of her symptoms. He could not rule out the disc issues as the
primary cause of pain, however, as they have secondarily resulted in core
weakness and mechanical misalignment due to pain.

[59]        
In his opinion, given the length of time that has elapsed and the
ongoing nature of her symptoms, it is unlikely that her symptoms will resolve
in the near future. More likely than not, she would have to deal with her
symptoms on an ongoing basis. She would therefore have difficulty with any type
of work that involves prolonged repetitive lifting and carrying or prolonged
immobility. As a result, it is unlikely that she will be able to work as a
horse trainer.

[60]        
Dr. Rhonda Shuckett is an expert in internal medicine and rheumatology.
She saw Ms. Neigel on March 7, 2012 at the request of legal counsel for an
independent medical examination.

[61]        
It was Dr. Shuckett’s opinion that Ms. Neigel had suffered:

1.       some whiplash injury to the neck with musculoligamentous
pain;

2.       myofascial pain and muscle spasm
of the left neck shoulder girdle region;

3.       some injury to the ligaments and the
vertebrae in the mid-thoracic spine, and some soft tissue injury to the muscle
around the medial scapula bilaterally; and

4.       mechanical
low back pain.

[62]        
It was Dr. Shuckett’s opinion that the injuries were consistent with the
motor vehicle accident.

[63]        
As to prognosis, Dr. Shuckett was of the view that as it is more than
three and a half years since the motor vehicle accident and she still remains
symptomatic, Ms. Neigel may be left with symptoms in the longer-term
future. The motor vehicle accident has affected her life, changing her career
path and preventing her from enjoying many of her leisure activities.

[64]        
Dr. Shuckett suggested a referral to a kinesiologist to learn some
graded progressive core strengthening exercises of the upper and mid back and
of the lower back and pelvic floor region. Dr. Shuckett also encouraged aerobic
exercise. Dr. Shuckett was guarded as to future prospects, however, saying
that whether these treatments will help her is “something that only time will
tell”.

[65]        
After Dr. Shuckett’s report was prepared, she received the report of an
MRI scan. The scan showed “focal broad based disc protrusion centrally at the
L3-4 level causing anterior compression on the thecal sac”. At the L4/5 space,
there was again “a broad based central disc herniation causing anterior
compression of the thecal sac”. There was also a small tear in the outer fibers
of the annulus fibrosis at this disc level. Finally, the right L5 nerve root in
the recess is abutting the disc material without compression.

[66]        
It was Dr. Shuckett’s opinion that the motor vehicle accident caused a
significant change at the L3/4 and L4/5 levels, which may very well tie her
symptoms in the lower back to the motor vehicle accident.

[67]        
Dr. Patrick Chin is an orthopaedic surgeon. He saw Ms. Neigel on July 5,
2012 at the request of defence counsel for an independent medical examination.

[68]        
Dr. Chin diagnosed Ms. Neigel as suffering:

1.       mechanical thoracic spine and lumbar
sacral spine back pain without neurologic dysfunction;

2.       bilateral sacroiliac joint
inflammation; and

3.       myofascial
pain syndrome of both shoulder girdles, involving the deep trapezius and rhomboid
muscle compartments.

[69]        
He concluded that with reasonable probability, the subject motor vehicle
accident caused Ms. Neigel’s injuries. It was his view that she most likely had
pre-existing upper back and shoulder blade symptoms, albeit less severe and less
frequent.

[70]        
In Dr. Chin’s opinion, given that it had been almost four years since
the accident at the time he observed her and she still had ongoing persistent
soft tissue pain, it is likely permanent. Nonetheless, as the symptoms were
improved with an active exercise program (which, again, she did not pursue
because she lacked the funds), Dr. Chin recommended that she again pursue an
active exercise program under the supervision of a kinesiologist or personal
trainer. In his view, there was still room for improvement. He suspected that
there would be some plateauing of her symptoms over time, although it was
difficult to predict how and when she would plateau. Dr. Chin concurred with
Dr. Hershler that he would have expected that most of her symptoms should have
been resolved within four years if she had actively pursued an active exercise
program and had not lost her physical fitness over the last couple of years
while attending school.

[71]        
Dr. Chin acknowledged that there was not much difference between his
opinion and those of Drs. Matthews, Shuckett, and Hershler. He did not disagree
with anything in Dr. Shuckett’s report. He also acknowledged that some people
require assistance to perform exercises safely and correctly and that he is not
saying that the plaintiff is 100% recovered. He recommended core exercises to strengthen
Ms. Neigel’s front in order to help stabilize the back structures and help her
manage her symptoms. Overall, however, in his opinion, her condition is
permanent.

Discussion

Causation/Credibility

[72]        
I found Ms. Neigel to be a credible witness who did not exaggerate her
complaints. I accept her description of her injuries, her ongoing symptoms, as
well as her efforts to recover.

[73]        
In particular, I accept that the symptoms that Ms. Neigel suffered from post-accident
and those that she continues to suffer from to date are the result of the
injuries received in the motor vehicle accident. I accept her evidence that the
pain that she had suffered before the accident was very occasional and did not
cause her any ongoing problems. For example, she had sought a referral to
physiotherapy before the accident as a result of one of these occasional pains,
but she did not pursue it because the pain did not continue. The pain that she
has continued to experience since the motor vehicle accident is not like these
earlier experiences and has been ongoing.

[74]        
I accept the opinions of Ms. Neigel’s medical witnesses that her
injuries are due to the motor vehicle accident. That is consistent with the
evidence before me. The evidence does not persuade me that Ms. Neigel suffered
from chronic back complaints before the accident.

Failure to Mitigate

[75]        
I also accept that the plaintiff did what she could to continue to
exercise after she could no longer afford therapy or a gym membership and personal
trainer. As all of the doctors acknowledged, some people are more gym savvy and
more able to exercise on their own. Both Dr. Hershler and Ms. Nonis recommended
that Ms. Neigel continue with a personal trainer to recommend exercises
and to ensure that they are properly performed. Ms. Nonis further recommended that
Ms. Neigel change the exercises every few months.

[76]        
I accept that Ms. Neigel did not have sufficient funds to continue with
therapy and exercise after ICBC withdrew funding. She did not have the
financial resources to pay for a personal trainer or a gym membership or to
continue with chiropractic assistance or any of the other modalities suggested
by her doctors. She has done what she can to continue to exercise since. To
properly exercise, however, she requires the assistance of a personal trainer.

[77]        
The test for failing to mitigate is set out in Chiu v. Chiu, 2002
BCCA 618:

[57]      The onus is on the
defendant to prove that the plaintiff could have avoided all or a portion of
his loss. In a personal injury case in which the plaintiff has not pursued
a course of medical treatment recommended to him by doctors, the defendant must
prove two things: (1) that the plaintiff acted unreasonably in eschewing the
recommended treatment, and (2) the extent, if any, to which the plaintiff’s
damages would have been reduced had he acted reasonably. These principles
are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[78]        
The plaintiff behaved reasonably and did what she could with the
resources available to her. This case is different from Tayler v. Loney,
2009 BCSC 742, where Mr. Justice Grauer found that the plaintiff, who taught
fitness and gymnastics, had failed to mitigate her losses by not pursuing an
exercise program. At para. 78, Mr. Justice Grauer said:

[78]      I note, however, that
the plaintiff did not even attempt to maintain her own course of active
therapy, notwithstanding her considerable training and background in that area.
Ms. Tayler had had training and experience as an instructor in fitness, in
gymnastics and in aquatics. … [S]he had ample training, experience and
resources to be able to carry on with an unsupervised program of her own that
would have been beneficial, notwithstanding the lack of financial resources.

[79]        
Ms. Neigel was not a trained fitness instructor. In any event, unlike
the plaintiff in Tayler, she continued with exercises after ICBC stopped
providing funding. I am not persuaded that she did not act reasonably to
mitigate her losses.

[80]        
Lastly, although the defendant faults her for keeping her horse, I was
not provided with any authority to suggest that a plaintiff must liquidate her
assets or be found to have failed to mitigate her losses.

Assessment of Damages

[81]        
All of the doctors agree that Ms. Neigel’s condition is now permanent.
She continues to experience pain more than four years after the accident. The
intent of the exercise program is to strengthen her core muscles so that she
can better cope with her injuries. Nevertheless, she is not expected to fully
recover. Rather, she will experience exacerbations of her pain and discomfort
going into the future. In my view, $85,000 is an appropriate award for pain and
suffering.

[82]        
As for Ms. Neigel’s claim for loss of future earning capacity, it is
well settled that the ability to earn income is a capital asset and that a
plaintiff deserves compensation if this asset is impaired or taken away: Tsalamandris
v. MacDonald, 2011 BCSC 1138 at para. 259, aff’d 2012 BCCA 239. Therefore,
courts may award compensation under this heading of damages when a plaintiff
proves that there is “a real and substantial possibility of a future event leading
to an income loss”: Perren v. Lalari, 2010 BCCA 140 at para. 32. Although
the award is not a mathematical calculation, it involves “a comparison between
the likely future of the plaintiff if the accident had not happened and the
plaintiff’s likely future after the accident has happened”: Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32.

[83]        
The Court of Appeal in Rosvold v. Dunlop, 2001 BCCA 1 set out the
principles governing the assessment of damages for loss of earning capacity.
They were conveniently summarized in Parker v. Lemmon, 2012 BCSC 27 at
para. 42, in the following manner:

[42]      The approach to such claims is well set out in the
decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras.
25-32, which I summarize as follows: 

(1)     A
plaintiff must first prove there is a real and substantial possibility of a
future event leading to an income loss before the Court will embark on an
assessment of the loss; 

(2)     A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation;

(3)     A
plaintiff may be able to prove that there is a substantial possibility of a
future income loss despite having returned to his or her employment;

(4)     An
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss;

(5)     It is
not the loss of earnings but rather the loss of earning capacity for which
compensation must be made;

(6)     If the
plaintiff discharges the burden of proof, then there must be quantification of
that loss;

(7)     Two
available methods of quantifying the loss are (a) an earnings approach or (b) a
capital asset approach;

(8)     An
earnings approach will be more useful when the loss is more easily measurable;

(9)     The capital asset approach
will be more useful when the loss is not easily measurable.

[84]        
With respect to assessing a claim for future loss of earning capacity in
circumstances where it is not possible to assess damages by referring to past
earnings, in Perren at para. 11, the Court of Appeal described the
four factors from Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) as
useful considerations:

[11]      … In Kwei [v. Boisclair (1991), 60
B.C.L.R. (2d) 393, 6 B.C.A.C. 314], where it was not possible to assess damages
in a pecuniary way as was done in Steenblok [v. Funk (1990), 46
B.C.L.R. (2d) 133 (C.A.)], Taggart J.A., speaking for the Court, held that the
correct approach was to consider the factors described by Finch J., as he then
was, in Brown v. Golaiy [citation omitted]. Mr. Kwei had suffered a
significant head injury with significant permanent sequelae that impaired his
intellectual functioning. However, both before and after the accident, he
worked at a variety of low paying jobs, thus making it difficult for him to
demonstrate a pecuniary loss. Mr. Justice Taggart cited the Brown
factors with approval:

[25]      The trial judge, as I have said, referred to the
judgment of Mr. Justice Finch in Brown v. Golaiy. Future loss of
earning capacity was at issue in that case. It stemmed from quite a different
type of injury than the injury sustained by the plaintiff in the case at bar.
But I think the considerations referred to by Mr. Justice Finch at
p. 4 of his reasons have application in cases where loss of future earning
capacity is in issue. I refer to this language at p.4 of Mr. Justice
Finch’s judgment:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1.         The plaintiff has been rendered less capable
overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as
an employee to potential employers;

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

4.         The plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[85]        
Thus, given that a court may not always be able to assess future income
loss in a purely mathematical way—for example, the plaintiff’s work history may
involve a series of low-paying jobs that do not reflect the plaintiff’s future
employment potential had the accident not occurred—a plaintiff may prove her
losses on either an earnings approach or on a capital asset approach. In either
case, however, the first step in assessing a claim falling under this head of
damages is “to enquire whether there is a substantial possibility of future
income loss before one is to embark on assessing the loss under either
approach”: Chang v. Feng, 2008 BCSC 49 at para. 76.

[86]        
The fact that Ms. Neigel, having retrained, may be able to earn as much
as she could have earned if not injured does not preclude an award.  She is
still entitled to compensation because for the rest of her life some
occupations will be closed to her and it is impossible to say that over her
working life the impairment will not harm her income earning ability: Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 (C.A.).

[87]        
If the court is satisfied that the plaintiff has suffered a loss of
future earning capacity, in valuing the award, it must then “consider the
likely duration of the plaintiff’s prospective working life and must account
for negative and positive contingencies which are unique to each case”: Gregory
at para. 33. Overall, the final award must be fair and reasonable in all the
circumstances.

[88]        
In my view, Ms. Neigel has met the initial burden of proof. Based on her
evidence and the medical opinions, she has shown that there is a real and
substantial possibility of a future event leading to an income loss. Namely,
I accept that Ms. Neigel will not be able to return to work as a horse trainer,
groom or barn manager. She simply cannot perform the heavy physical work which
these positions require. That is, although she only trained one horse after her
accident, and there is no reliable evidence as to what she would have made as a
trainer or even what an average trainer makes, she is now precluded from
pursuing this line of work, or any work with horses.  As Dr. Hershler opined in
his September 6, 2012 report:

Given the length of time that has elapsed and the ongoing
nature of the symptoms, it is unlikely that her symptoms will resolve in the
near future.  It is more likely than not that Ms. Neigel will have to deal with
her symptoms on an ongoing basis. … She will have difficulty with any type of
work that involves prolonged repetitive lifting and carrying or prolonged
immobility (such as standing or sitting in one position without changing
posture).

Accordingly, she has suffered a loss of earning capacity.

[89]        
Further, although she will complete her Bachelor of Science degree and
hopes to find employment in pharmaceutical sales, she has not yet done so. She
may earn more than she would have had she continued as a horse trainer, but I
cannot be satisfied that she will. In any event, she will not be able to return
to heavy physical work, as she otherwise could have, if she does not obtain
employment as she hopes to.

[90]        
Lastly, as noted above, Ms. Neigel’s condition is now permanent. She may
be able to manage her ongoing symptoms with an exercise program, but she is not
expected to recover fully and thus will continue to experience exacerbations of
her pain and discomfort in her neck, between her shoulder blades, and in her
lower back, hips, and pelvis going into the future. Accordingly, even if she is
able to find employment in pharmaceutical sales, her ongoing symptoms will likely
affect her ability to earn income.

[91]        
Based on the foregoing, I find that the plaintiff has been rendered less
capable overall from earning income from all types of employment, that she is
less marketable or attractive as an employee to potential employers in
pharmaceutical sales, that she has lost the ability to take advantage of all
job opportunities which might otherwise have been open to her had she not been
injured, and that she is less valuable to herself as a person capable of
earning income in a competitive labour market.

[92]        
Ms. Neigel is still relatively young. The period over which she may
experience an income loss could be 30 years or more. The loss is not
easily measurable in this case, however, making the “capital asset” approach
more appropriate. Assessing this loss as best I am able, and considering the
positive and negative contingencies, I award $75,000 for loss of earning
capacity.

[93]        
With respect to cost of future care, Dr. Hershler recommended regular
exercise training with a personal trainer at least once a week for one year and
then on an ongoing monthly basis. Dr. Matthews anticipated occasional physiotherapy,
massage, and chiropractic treatments. I accept the plaintiff’s claim for cost
of future care of $15,771.87.

[94]        
I also accept the plaintiff’s past wage loss claim of $22,600. Although
the plaintiff did not declare all her earnings, that is not a reason to refuse
to award damages for the loss: Iannone v. Hoogenraad (1992), 66
B.C.L.R. (2d) 106 (C.A.).

[95]        
As to special damages, but for the accident, the plaintiff would not
have needed to retrain and would not have returned to university. Her cost of retraining
is reasonable and is a reasonable special expense. I also accept her other
out-of-pocket claims of $17,393.09.

Conclusion

[96]        
In summary, I award the plaintiff the following damages:

[97]        
With respect to the special damages, the parties are to determine
between themselves the amount that must be deducted. If they cannot agree to a
figure, they may come before me for determination.

[98]        
The plaintiff is entitled to costs at Scale B unless there are matters
of which I am not aware.

“B.J. Brown J.”
The Honourable Madam Justice B.J. Brown