IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130614

Docket: M113289

Registry:
Vancouver

Between:

Theresa Lumley

Plaintiff

And

Corazon Balilo

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
On July 10, 2009, the plaintiff, Theresa Lumley, had stopped for a red
light when her vehicle was struck from behind by the vehicle driven by the
defendant Corazon Balilo.  Ms. Balilo admits that the accident was caused by
her negligence.  Ms. Lumley suffered soft tissue injuries to her neck and back
as a result of the collision.  The parties disagree about the severity and
duration of her symptoms and the quantum of damages to be awarded to compensate
Ms. Lumley for her injuries.

[2]            
Ms. Lumley was born in December 1986; she was 22 years old when the
accident happened and 25 years old at time of trial.   She grew up in the Lower
Mainland of British Columbia and went to high school in Surrey.  She has always
been a physically fit, active and athletic person.  In school, she was involved
in many sports, including baseball, volleyball, basketball, tennis,
snowboarding and water sports.

[3]            
Ms. Lumley graduated from high school in 2005.  Soon after graduation,
she moved out of her mother’s home and began working at two jobs – at a
restaurant and at a warehouse.   Ms. Lumley continued to be very physically
active; playing baseball in a summer league, hiking with friends, working out
at the gym almost every day, and playing pick-up games of volleyball with
friends on weekends.  Her gym routine included exercises for cardiovascular
fitness, and she also did some kick-boxing.  She often finished her work-out by
swimming a few laps in the pool.

[4]            
Ms. Lumley was in good health.  In 2006, she began taking prescription
Zoloft, an anti-depressant medication.  She testified that her mother had been
taking the same medication for about twenty years and that the medication
regularizes a chemical imbalance that she believes to be hereditary.

[5]            
Between 2006 and 2007, Ms. Lumley attended a one-year full-time program
at MTI Community College to obtain a diploma as a Child and Youth Care Worker. 
Following completion of the program she worked at a group home for about one
year.

[6]            
In November 2007, Ms. Lumley was involved in a motor vehicle accident in
which her head struck the windshield with sufficient force that the windshield
shattered.  Following the accident, she had a lot of headaches.

[7]            
Ms. Lumley has a half-sister, Angela Kelly, who is five years older than
Ms. Lumley.  For about a year, from the spring of 2008 until May 2009, Ms.
Lumley and Ms. Kelly shared an apartment.  Ms. Kelly and Ms. Lumley’s mother,
Debbie Stephenson, were both employed by Loblaw Companies Limited.  In May
2008, Ms. Kelly hired Ms. Lumley to work for Loblaw as a coordinator at a
company training centre in Surrey.

[8]            
Ms. Lumley testified that Loblaw and Superstore employees came to the
learning centre for six or eight week stints to train to become supervisors,
assistant store managers, or department heads.  Ms. Lumley’s job involved a lot
of phone calls and data entry as it was her responsibility to coordinate travel
arrangements for trainees, liaise with regional vice-presidents, and keep
records of information related to the program.  She was also teaching first aid
level one to Loblaw employees and travelled to various locations in the
province to do in-store training.  Her starting salary, she testified,
was $41,000.

[9]            
Ms. Lumley was interested in becoming a personal trainer and she
sometimes volunteered to teach after-hours fitness classes for employees
attending the Loblaw learning centre.

[10]        
On Friday, July 10, 2009, at around 7:00 p.m., Ms. Lumley had been to a
restaurant with co-workers and was heading home.  She was driving a 2007
Hyundai Accent that she had recently purchased.  She was on 72nd Avenue and
stopped for a red light at the intersection of 72^nd Avenue and 144^th
Street.  She had her foot on the brake.  She was wearing a lap and
shoulder belt, had both hands on the steering wheel and was looking straight
ahead.

[11]        
Corazon Balilo was driving her 2000 Buick Century on 72^nd
Avenue.  She was going to her church to drop off one of her sons, who was
supposed to be at the church by seven.  Her two sons were with her in the
vehicle; one in the front passenger seat and the other in a rear passenger
seat.  As she approached the intersection of 72^nd Avenue and 144^th
Street, Ms. Balilo saw that the light was red for traffic on 72^nd
Avenue and she brought her vehicle to a full stop, immediately behind Ms.
Lumley’s vehicle.  Ms. Balilo estimated that there was about one car-length
between the rear of Ms. Lumley’s vehicle and the front of her Buick.  After she
was stopped for a few minutes, Ms. Balilo noticed the car in the lane to her right
start to move.  She assumed traffic was moving, took her foot off her brake and
applied slight pressure to her gas pedal.  One of her sons alerted her that she
was going to strike Ms. Lumley’s vehicle but it was too late, and the front of
Ms. Balilo’s vehicle struck the rear of Ms. Lumley’s vehicle.

[12]        
Ms. Balilo estimated that she was travelling only 5 or 10 kph when the
collision happened.  She had a cup of coffee in her vehicle and testified the
coffee did not spill.  She and Ms. Lumley got out of their cars and inspected
the rear of Ms. Lumley’s car and the front of Ms. Balilo’s car.  Ms.
Balilo did not notice any new damage to her vehicle – her licence plate holder
had been damaged previously.  No repairs were required.  None of the occupants
of Ms. Balilo’s vehicle suffered any injuries as a result of the collision.

[13]        
The rear bumper of Ms. Lumley’s vehicle was damaged and repaired. 
Documents submitted at trial indicate the repairs cost about $3,000.

[14]        
Ms. Lumley testified that she had not anticipated the collision before
she felt the impact.  She recalled her body moving forward and that her glasses
fell off.  She thinks her vehicle was pushed forward a little.

[15]        
After Ms. Lumley and Ms. Balilo exchanged information, Ms. Lumley drove
home.  She called her mother, who was living in Calgary at the time, and her
mother suggested that she go to the hospital.  Ms. Lumley said she was
beginning to feel tightness in her neck, shoulders and back.  She drove to the
hospital and was checked out in the emergency department.  No x-rays were taken
and the only medical advice Ms. Lumley was given was to take over-the-counter
Advil for discomfort.

[16]        
July 10, 2009 – the day the accident happened – was a Friday.  Ms.
Lumley went to work on Monday July 13 as scheduled and has not missed any work
as a result of the accident injuries.  She used various strategies – getting up
to stretch, changing positions, changing chairs, and taking Advil – to manage
her symptoms at work.  She testified that her supervisor was flexible and let
her rearrange her schedule if she needed to go to appointments with her doctor
or physiotherapist.

[17]        
Four days after the accident, on July 14, 2009, Ms. Lumley went to see
her family doctor, Dr. Fransen.  Dr. Fransen had been Ms. Lumley’s doctor since
birth.  She reported to him that she had pain in her back and neck, and was
also having headaches; and that her discomfort had increased in the days
following the accident.  Ms. Lumley testified that following the accident her
neck and the top of her shoulders felt really “tight”; and that her lower back
was also sore.

[18]        
Dr. Fransen noted on July 14, 2009 that Ms. Lumley appeared to be
sitting comfortably and moving her neck spontaneously while in his office.  She
had no palpable spasm over the trapezius muscles and good range of motion of
the cervical and lumbar spines.  She had been taking Advil and he recommended
she continue to take it twice a day and to return for reassessment in one week.

[19]        
Ms. Lumley testified that she did not keep any receipts for the Advil
she was taking because it is a medication she buys all the time.

[20]        
Ms. Lumley was seen by Dr. Fransen’s locum, Dr. Dechert, on July 21,
2009.  According to notes made by Dr. Dechert, Ms. Lumley reported she was
getting no relief from the pain medication she was using.  Although the
examination elicited reports of tenderness in the neck and lumbar areas, Ms.
Lumley continued to have full range of motion in her neck and back.  Dr.
Dechert gave Ms. Lumley a prescription for Tylenol #3 and Naproxen, and a
referral for physiotherapy.

[21]        
Ms. Lumley testified that her lower back pain resolved about two weeks
after the accident but her neck continued to be sore and she also had headaches
that she attributed to tension in her neck muscles.  She testified at trial
that these symptoms have persisted.

[22]        
Ms. Lumley began having physiotherapy treatments on July 29, 2009.  She
had six treatments in August and five in September.  She did not have any
treatments after September 21 until December 16, 2009.  She had one further
treatment in December, two in January 2010; and her last treatment was on
February 19, 2010.

[23]        
Ms. Lumley testified that the physiotherapy treatments provided a lot of
relief at the time but eventually the physiotherapist suggested she could do
the exercises on her own at home.   Ms. Lumley testified that her symptoms have
remained unchanged since she stopped physiotherapy.

[24]        
Ms. Lumley was seen by Dr. Fransen on August 4, 2009, August 20, 2009
and September 24, 2009.  On each visit she had good range of motion in her neck
and back; but reported she was still having upper back pain and headaches for
which she was taking medication occasionally.  On September 24, 2009, she asked
for a referral back to physiotherapy as she was still having some neck
discomfort.

[25]        
After September 24, 2009, Ms. Lumley did not see her doctor about the
accident injuries until April 15, 2010.  She reported in April that she was
still having neck pain, with headaches, and that she had difficulty sleeping at
times.  On examination she had full range of motion with no palpable spasms.

[26]        
Ms. Lumley testified that for a year after the accident she did no
activities and just sat at home.  She said that she did only basic stretches.

[27]        
I am satisfied that Ms. Lumley is mistaken in her recollection. 
According to Dr. Fransen’s notes, Ms. Lumley told him on April 15, 2010 that
she had returned to doing all the exercises she had done before the accident
and was “…pursuing her life as it was before, albeit with some pain.”  The
latter quotation comes from the medical legal report of Dr. P. Mukheibir, who
replaced Dr. Fransen as Ms. Lumley’s family doctor.

[28]        
Ms. Lumley began playing baseball again when the league started in the
spring of 2010.  While continuing to work full-time at Loblaw, in May 2010,
only nine months after the accident, Ms. Lumley began a 10-month part-time
training program at Douglas College to qualify her to work as a personal
fitness trainer.  On March 31, 2011, she obtained her registration with the
British Columbia Recreation and Parks Association as a leader in fitness
theory, personal training and weight training.

[29]        
Ms. Lumley saw Dr. Mukheibir for the first time on May 13, 2010.  She
said she changed doctors because Dr. Mukheibir was Angela Kelly’s doctor and
Ms. Kelly said he was really thorough.  Ms. Lumley had become dissatisfied
with Dr. Fransen.

[30]        
When Ms. Lumley first saw Dr. Mukheibir she told him she was struggling
with ongoing headaches.  Dr. Mukheibir was initially unaware that the headaches
were related to the motor vehicle accident.  After learning about the accident,
Dr. Mukheibir’s opinion was that the headaches were probably muscle
tension headaches arising from her neck.  He gave Ms. Lumley Flexeril, a muscle
relaxant, to take at night.

[31]        
When Ms. Lumley saw Dr. Mukheibir on July 14, 2010 she reported that she
had stopped taking the Flexeril because it made her constipated.  Ms. Lumley
and Dr. Mukheibir discussed a referral for chiropractic treatment and he
advised Ms. Lumley to have a few chiropractic treatments and report back. 
Ms. Lumley testified she did not see a chiropractor because she did not have
time and did not want to pay the cost up front.  She also did some research and
formed the belief that chiropractic treatment was not right for her condition.

[32]        
After seeing Dr. Mukheibir on July 14, 2010, Ms. Lumley did not see him
again about the accident injuries until November 4, 2011.  I infer that the
visit on November 4, 2011 was to allow Dr. Mukheibir to update his information
as he had been asked by Ms. Lumley’s counsel to prepare a medical-legal
report.  Dr. Mukheibir’s report is dated December 6, 2011.

[33]        
In November 2010, while she was attending part-time courses at Douglas
College, and continuing to work full-time at Loblaw, Ms. Lumley took a second
job working as a personal trainer at Fitness World.  She said she went to
Fitness World at about 5:00 p.m. after leaving work at Loblaw; and worked
between two and 20 hours a week at Fitness World in addition to her 40 hours a
week at Loblaw.  At Fitness World, she had one-hour appointments with clients,
or if she did not have an appointment, her practice was to walk around the gym
and recruit clients or call prospective clients and offer them free workout
sessions.  She taught exercises – she gave teaching someone to do “squats” as
an example.

[34]        
Ms. Lumley testified that although her injuries affected her, no one
knew she worked with at Fitness World knew she was injured and she pushed
through, although she said she did not do a lot of repetitions of overhead
exercises.  She testified that she had been able to perform all duties as a
personal trainer.  She had also resumed running and hiking, including hiking
the Grouse Grind and other Lower Mainland trails.  She testified that she did
not avoid activities, although she sometimes knew that she would be sore the
next day.

[35]        
In December 2011, Ms. Lumley quit working at Fitness World and started
her own business as a personal trainer, while continuing to work full-time at
Loblaw.

[36]        
Ms. Lumley’s job at Loblaw was made redundant in April 2012, although
Loblaw continued to pay her salary at time of trial and had committed to pay
her until the end of August 2012.  Ms. Lumley indicated that she had not
pursued any other position with Loblaw because she decided it was time for a
career change.  She enrolled in an Early Childhood Education course that was
scheduled to start in September 2012.  Ms. Lumley testified she planned to work
part-time as a restaurant server while taking the course and to continue to
work as a personal fitness trainer.

[37]        
In direct examination, Dr. Mukheibir testified that he had seen Ms.
Lumley in connection with her complaints of neck pain and headache on April 2,
2012 and had sent her for cervical spine x-rays.  He said that the x-ray report
indicated there had been some “loss of lordosis” in the neck and some
degenerative change – disc narrowing – between the 6th and 7th vertebrae.  No
notice had been provided to the defendant or defendant’s counsel that Dr.
Mukheibir would be asked to testify about the April 2, 2012 visit or the X-ray
results and he was not permitted to expand his medical-legal opinion at trial. 
The admissible evidence does not establish a causal connection between the
degenerative changes and the accident injuries.

[38]        
In June 2012, Ms. Lumley participated in an event at Whistler Mountain
called “Tough Mudder”.   Ms. Lumley posted photos of herself and others
participating in the event on her Facebook page.  Information taken from a
“Tough Mudders” web-site is also in evidence.   Ms. Lumley’s testimony and the
information provided indicate that the two-day event requires participants to
complete an obstacle-race involving numerous challenging physical activities,
including climbing under and over obstacles of various kinds, carrying logs,
swimming through cold water, crawling, squatting, sliding down a hill of mud,
and hanging from monkey bars.  Ms. Lumley testified she completed the course,
along with a team of other women from Loblaw.  She said that she trained for
the event for six months before the event.  She took Advil before the race and
said she was sore for two days afterwards.

[39]        
At trial, Ms. Lumley testified she continued to get headaches and to
experience neck pain, and uses Advil to control her symptoms.

[40]        
Ms. Lumley was the last of the plaintiff’s witnesses to testify.  Before
she testified, the Court had heard from Dr. Mukheibir and from Joseph Marino,
who had been Ms. Lumley’s boyfriend for four years prior to trial.  Mr. Marino
and Ms. Lumley had been living together for two years prior to trial.  The Court
had also heard the testimony of Angela Kelly, Ms. Lumley’s half-sister; and
Debbie Stephenson, who is Ms. Lumley’s mother.  Ms. Stephenson was living in
Calgary when Ms. Lumley’s accident happened and did not move back to the Lower
Mainland until January 2011.  No explanation was given for why Ms. Lumley’s
testimony was deferred until after all the other plaintiff’s witnesses had
testified.

[41]        
Mr. Marino testified that after they began dating, he and Ms. Lumley did
a lot of sports together, including jogging, baseball, volleyball, and working
out at the gym.  He said he and Ms. Lumley routinely jogged outdoors for at
least one half hour and went to the gym at least five times a week.  He
recalled that after the accident, Ms. Lumley cancelled a lot of activities for
a time and he went on his own.  He said that she often asks him to massage her
neck and that she is sometimes moody.  He attributes her irritability to
discomfort in her neck.

[42]        
Ms. Kelly testified that after the accident Ms. Lumley did no physical
activities for the “first couple of years”, but I am satisfied, based on the
medical evidence and Ms. Lumley’s own testimony, that Ms. Kelly is not a
reliable historian on this point.  I accept that Ms. Lumley likely did refuse
some invitations from Ms. Kelly to participate in activities in the first few
months following the accident, due to discomfort from her injuries.  I note
also however, that Ms. Kelly and Ms. Lumley were no longer sharing an apartment
when the accident happened; and that Ms. Lumley was doing a lot of
recreational activities with her boyfriend, Mr. Marino, with whom she later
began cohabiting.  Ms. Lumley also began taking the course at Douglas College
which meant she had less time available to do social and recreational
activities with Ms. Kelly.  Ms. Lumley testified, for example, that she did not
do kick-boxing because she had no time to fit it into her schedule.

[43]        
As stated earlier, Ms. Stephenson was living in Calgary from before the date
of the accident until January 2011 so had little opportunity to observe Ms.
Lumley following the accident.  She testified that Ms. Lumley complained of
pain and stiffness and seemed more emotional and less energetic after the
accident.

[44]        
Dr. Mukheibir’s ultimate diagnosis was cervical muscle sprain, leading
to muscle tension headaches.  In his report, he said his prognosis for full
recovery in December 2011 was “guarded” given the fact that Ms. Lumley
continued to report symptoms more than two years after the accident.  In
cross-examination at trial, however, he conceded that Ms. Lumley appears to
have resumed an extremely active lifestyle and does not appear to have any
ongoing disability as a result of the accident injuries.

[45]        
I conclude that Ms. Lumley’s injuries did not incapacitate her from
work; or from any of the social and recreational activities she enjoyed before
the accident, although discomfort in her neck and back caused her to limit her
physical activities for a few months following the accident.  After a few weeks
she stopped using prescription medication and relied on occasional use of an
over-the-counter analgesic to manage her discomfort.  She had resumed her
normal activities by April 2010 – nine months after the accident, although she
continued to have stiffness and some discomfort in her neck and muscle tension
headaches from time to time.  She was able to combine a full-time job with
attendance at a part-time college course to become a physical fitness trainer;
and began working as a trainer while completing the course, in addition to
working full-time at her regular job.  Although Ms. Lumley testified that she
had not improved at all after terminating physiotherapy treatments in February
2010, I conclude that she has made a significant recovery and that her current
symptoms are mild and controlled with only occasional use of a non-prescription
pain medication.

[46]        
While inconsistencies in Ms. Lumley’s testimony – between her evidence
on examination for discovery and at trial, for example – were not glaring; I
did form the impression that Ms. Lumley was exaggerating her ongoing and
current level of symptomatology when testifying at trial.  There were long gaps
between Ms. Lumley’s visits to her doctors.  She did not see her doctor
for treatment of her symptoms between September 24, 2009 and April 15, 2010,
for example; or between July 4, 2010 and November 4, 2011.  The latter visit, I
infer, was prompted by the fact that Dr. Mukheibir had been asked to provide a
medical-legal opinion for use in this litigation.   Ms. Lumley discontinued
physiotherapy altogether after six months; and had only five physiotherapy
treatments after September 21, 2009, according to the Schedule of Special
Damages.  Her last prescription for medication was in May 2010, after which
occasional use of Advil was sufficient to control her symptoms.

[47]        
Ms. Lumley is health-conscious.  I infer that if her symptoms were as
significant as she testified at trial, she would have actively pursued
treatment from her doctor or other health care providers; and would have taken
advantage of prescription medications available to control her symptoms.  Both
Ms. Lumley’s activity level and her disinclination to pursue treatment are
indications, I infer, that her symptoms had largely resolved within a year
following the accident and thereafter did not significantly interfere with her
enjoyment of life or her resumption of all of her normal activities.

DAMAGES

SPECIAL DAMAGES

[48]        
Ms. Lumley’s claim for out of pocket expenses is for the sum of $721.69 comprised
of physiotherapy user fees of $340, mileage to attend physiotherapy and
doctors’ appointments of $322 and medication and miscellaneous expenses of
$59.69.  I award the sum of $722 for special damages.

COST OF FUTURE CARE

[49]        
I am not persuaded that Ms. Lumley will require any further treatment
for her soft tissue injuries or related muscle tension headaches.  Her last
physiotherapy treatment was in February 2010 and the last medications –
prescription or non-prescription – for which she has included a claim for
special damages were purchased in May 2010.  Dr. Mukheibir’s opinion is that it
is possible that Ms. Lumley may need further treatment in future for muscle
tension headaches, but he did not suggest what that treatment might be; or that
any expense would be associated with it.  Ms. Lumley did testify that she
continues to use non-prescription Advil on occasion to relieve muscle
soreness.  I award $300 for the cost of Advil that Ms. Lumley may require
in future.

LOSS OF THE CAPACITY TO EARN INCOME

[50]        
As I stated earlier in these Reasons, Ms. Lumley did not miss any work
or suffer any loss of income as a result of the accident or the accident
injuries in the three years between the date of the accident and trial.  Her
tax returns indicate her income from her employment at Loblaw increased in 2009
over 2008 (from $38,500 to $42,000); in 2010 over 2009 (from $42,000 to
$45,100); and in 2011 over 2010 (from $45,100 to $48,800).  In addition to her
income from Loblaw in 2011, Ms. Lumley earned an additional $10,773 from
her second job as a personal fitness trainer at Fitness World.

[51]        
At time of trial, Ms. Lumley’s job at Loblaw had become redundant and
she had elected not to take another position with Loblaw, or to look for a new
job elsewhere.  She said that would continue to receive her salary from Loblaw
until August 2012 if she did not work elsewhere.  Her plan was to start a
course in Early Childhood Education in September 2012.  She continued to work
as a personal fitness trainer.  She testified she planned to get a part-time
job as a waitress when she started school in September 2012; and could also
work as a daycare assistant.  Her plan is to eventually open her own daycare
center and continue to work as a personal trainer on the side.

[52]        
I am not persuaded that Ms. Lumley’s capacity to earn income has been
impaired by the accident injuries.  Even in the days and weeks immediately
following the accident, Ms. Lumley retained full range of motion in her neck
and lower back.  Less than a year after the accident, Ms. Lumley was able to
continue to work full-time at Loblaw and also take a part-time college course
to become a personal fitness trainer.  For a time she was working one full-time
job, a second part-time job and taking courses at Douglas College, all at the
same time.  She has never lost income because of her injuries.  The evidence
indicates she is capable of functioning at a high level of physical activity.

[53]        
Ms. Lumley testified on her examination for discovery in November 2011
that the accident had not interfered with her ability to do household
activities like cleaning and cooking; that there were no household activities
she could not do; and that doing the activities was “not necessarily” more
painful.

[54]        
I am not persuaded that there is a substantial possibility that Ms.
Lumley will suffer a pecuniary loss in the future as a result of any impairment
to her capacity to earn income.  I am not persuaded her capacity to earn income
has been impaired.  I make no award for damages for impairment or loss of the capacity
to earn in income in future.

NON-PECUNIARY DAMAGES

[55]        
Counsel for Ms. Lumley provided the Court with the following
authorities: Connolly v. Cowie, 2012 BCSC 242; Ruscheinski v.
Biln, 2011 BCSC 1263; Dutchak v. Fowler, 2010 BCSC 128; Zawislak
v. Karbovanec, 2012 BCSC 666; Lehtonen v. Johnston, 2009 BCSC 1364; Sevinski
v. Vance, 2011 BCSC 892; Sinnott v. Boggs, 2007 BCCA 267 and Morlan
v. Barrett, 2012 BCCA 66.  He submits that the appropriate range of
non-pecuniary damages, based on the awards in Dutchak v. Fowler,
Lehtonen v. Johnston, Connolly v. Cowie, and Zawislak v.
Karbovanec (all cited above) is between $40,000 and $60,000.

[56]        
Counsel for Ms. Balilo provided the Court with the following
authorities: Hall v. Day, 2006 BCSC 874; Mangat v. Jackson, 2004
BCSC 319; Mohammed v. Rai, 2005 BCSC 1918; Perren v. Lalari, 2010
BCCA 140; and Price v. Kostryba, (1982) 70 B.C.L.R. 397.  He submits
that the appropriate range of non-pecuniary damages, based on the awards in Hall
v. Day, Mangat v. Jackson, and Mohammed v. Rai (all cited
above) is between $3,000 and $10,000.

[57]        
Ms. Lumley is a person who enjoyed a high level of fitness before the
accident, and derived an important source of enjoyment and satisfaction from
her participation in sports and recreational activities.  Ms. Lumley continues
to be very fit and active but as a result of the accident, sometimes
experiences stiffness or discomfort in her neck; and headaches that her doctor
believes are causally related to muscle tension in her neck.  While these
residual symptoms are not disabling; they do occasionally interfere with Ms.
Lumley’s enjoyment of life and in particular, her enjoyment of the sports and
athletic endeavours that are so important to her.

[58]        
I am not persuaded, however, that the symptoms are likely to persist in
any significant way and that the symptoms Ms. Lumley continues to experience
are mild and can be managed with the use of non-prescription analgesics.

[59]        
I have considered the authorities cited.  I award Ms. Lumley $25,000 in
damages for pain, suffering and loss of enjoyment of life.

COSTS

[60]        
The parties asked to defer submissions about costs until the Reasons
were delivered.  I am aware of no reason why the plaintiff should not have her
costs, on Scale B.  If there are factors which counsel believe should be
brought to the Court’s attention on the issue of costs – offers of settlement,
for example – they are at liberty to file written submissions or to arrange for
an oral hearing about costs.  If no further submissions are received, the
plaintiff shall have her costs on Scale B.

SUMMARY OF DAMAGES

Special Damages                             $722

Cost of Future Care                          $300

Non-Pecuniary Damages                  $25,000

TOTAL                                            $26,022

“W.G. Baker J.”