IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130625

Docket: M103398

Registry:
Vancouver

Between:

Jodi
Gormick

Plaintiff

And

Sebastian
Amenta

Defendant

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment

Introduction

[1]            
This is an assessment of damages for the personal injuries suffered by
the plaintiff, Jodi Gormick, a young, athletic police officer, who on August
21, 2008 was injured in a motor vehicle accident, which was caused by the
defendant’s negligence.

[2]            
Following the accident, the plaintiff had neck surgery to her cervical
spine, involving a neck fusion.  Ms. Gormick had a pre-existing neck
condition, but it had not required surgery before the accident.  The surgery,
which she had six months after the accident, was successful.  However, the
extent to which the plaintiff’s symptoms were caused by the accident, whether
she would have had symptoms if the accident had not occurred, and the extent to
which her symptoms from the accident persist, are matters that are in dispute.

[3]            
The plaintiff is a very capable police officer.  Although the defendant
acknowledges that Ms. Gormick is entitled to damages for past wage loss and
general damages, the defendant disputes whether the plaintiff is entitled to
compensation for the loss of an opportunity to work overtime during the
Olympics, or whether she is entitled to damages for the cost of future care. 
The most significant issue at trial is the extent to which the plaintiff’s
earning capacity was impaired by her injuries in the accident, if at all.  The
plaintiff says that she has persisting problems which impact her ability to
work overtime and achieve promotions in the police force.  The defendant says to
the extent that the plaintiff suffers any ongoing discomfort, that is
compensable as part of a general damages award.  However, the defendant says
that the plaintiff has not shown a real and substantial possibility that she
will suffer a loss of income or a loss of capacity in the future.

Issues

[4]            
The issues are as follows:

(1)           
What amount is the plaintiff entitled to for general damage for
non-pecuniary loss?  This issue concerns the plaintiff’s pre-existing condition,
and its significance to the assessment of damages.

(2)           
What damages should be awarded for loss of past income?  This issue
concerns loss of hours used for sick time following surgery, and loss of
overtime opportunities in terms of extended tours of duty, callouts, and an
opportunity to work on an undercover project with the RCMP during the Olympics.

(3)           
What amount is the plaintiff entitled to for loss of earning capacity? 
This issue largely concerns the extent to which the plaintiff has or may have
persisting symptoms from the accident that may affect her capacity to earn
income or achieve promotions and greater pay.

(4)           
What amount is the plaintiff entitled to for cost of future care, if
any?

(5)           
What amount is the plaintiff entitled to for special damages?

Facts

General Background

[5]            
The plaintiff was 34 years of age at the time of the trial, and was 30
at the time of the accident.  From an early age, she was very active in
competitive sports.  She competed at the provincial and national elite levels
in volleyball, basketball, and baseball.  She met her husband, a firefighter,
in 2001 at the Justice Institute, where she was training after commencing her employment
with the West Vancouver Police Department.  The couple enjoyed active lives,
cycling, rock climbing, and snowboarding.  Prior to the accident, Ms. Gormick
was training for the World Police and Fire Games in two-person volleyball.

[6]            
The plaintiff was an accomplished athlete, having played on the select
baseball team for Canada, and after high school receiving an award as Tri-City
Athlete of the Year.  After attending Douglas College, she transferred to Simon
Fraser University, where she completed a degree in psychology.  At university,
she played softball and volleyball and, as a catcher, had a strong throwing
arm.

The Plaintiff’s Pre-Accident Employment

[7]            
The plaintiff began her policing career as part of the West Vancouver
Police Department.  Shortly after she married, the plaintiff applied to work
for the Port Moody Police Department, where she started in January 2005.  It is
a small police force.  The department had 54 members including management; 32
of its members were in the general patrol section, which was divided into four
squads.  Her work duty as a patrol constable was two twelve-hour day shifts,
followed by two twelve-hour evening shifts, then four days off.  After working
in patrol, where thefts, motor vehicle accidents and more serious matters were
investigated, she moved to the Project Target team in October 2005, doing
surveillance work.  This sometimes involved lengthy surveillance on a roof or
hiding in bushes.  In January 2008, she obtained her Level II undercover certification.

The Plaintiff’s Pre-Accident Condition

[8]            
The plaintiff had some health issues prior to the accident.  However,
she says that these issues resulted in no physical limitations on any aspect of
her life, including her ability to sleep, do household chores, or participate
in athletic endeavours.  The extent of her pre-accident difficulties is to some
extent in dispute, and I will discuss that below.

[9]            
The plaintiff saw her general practitioner, Dr. Choo Fone, in 2006 as
a result of some intermittent neck and right shoulder symptoms, as well as
numbing and tingling in her right pinky finger.  She was referred to Dr. Richard
Chan, a neurosurgeon, who directed she undergo a CT scan.

[10]        
The follow-up MRI ordered by Dr. Chan, done in November 2007, revealed
an osteophite at the C6-7 level, causing some narrowing of the intervertebral
foramen.  Dr. Chan advised Ms. Gormick that the tingling sensations in
her right pinky finger were from an ulnar nerve neuropathy, as a result of her
having surgery on her right elbow when she was 12 years old.

[11]        
The medical evidence at trial from both Dr. Chan and Dr. Prout,
the expert called by the defendant, was that the plaintiff, prior to the
collision, was not a surgical candidate.

[12]        
Notwithstanding these symptoms, the plaintiff reports that prior to the
accident, she was functioning at an extremely high level.  She worked in
surveillance, performing sophisticated undercover tasks.  She also participated
in various sports, including snowboarding, rock climbing, and cycling with her
husband.  The plaintiff had, prior to the collision, attended a chiropractor,
and there is a question as to whether this was because of a symptomatic back or
neck problem. Counsel for the plaintiff says that although there is evidence
that Ms. Gormick had a degenerative spine prior to the accident, this is
not significant, as 90% of people with disc degenerations never require surgery. 
I will discuss this when assessing the extent to which her injuries were caused
by the accident and whether her symptoms would have occurred in any event
because of her degenerative condition.

The Accident

[13]        
On August 21, 2008, the plaintiff was a passenger in a motor vehicle (a
Volvo station wagon) driven by her husband on East Hastings Street.  The
defendant was attempting to cross East Hastings Street in his vehicle, suddenly
darting in front of the plaintiff’s vehicle which had the right of way.  The
plaintiff’s husband attempted an immediate stop, but the vehicles collided, and
the defendant’s vehicle was spun around 180 degrees.  The plaintiff was thrown
forward in her seat; her right knee hit the dash and her right arm and head hit
the passenger door or window.  The plaintiff said that she was thrown back into
her seat.

[14]        
The defendant’s vehicle was inoperable, and the plaintiff’s car
sustained front‑end damage which cost $6,592 to repair.

Circumstances Following the Accident

[15]        
Later in the evening of August 21, 2008, the plaintiff began to feel
stiff and sore in her neck, right upper shoulder and trapezius areas.  She also
had pain in her knee and lower back.

[16]        
The plaintiff went to her chiropractor the next day.  On August 25, 2008,
four days after the accident, at the first available opportunity, she went to
see her family physician, complaining that her neck symptoms were getting worse,
although her knee and lower back symptoms had resolved.  The plaintiff
testified that her neck and shoulder pain continued to worsen and by the end of
the first month she was in a lot of pain.  Her condition continued to
deteriorate, and she was experiencing severe neck pain, severe headaches, right
arm pain with numbness, as well as losing strength in her right arm.  The
plaintiff said that she did not let on at work the extent of her injuries but
there is evidence from the plaintiff’s husband that she came home fatigued, only
able to watch television.  She withdrew from all sports and physical
activities, including training for the World Police and Fire Games.  This was
out of character for her.  By November 2008, the plaintiff said that her
symptoms became so bad that she had severe shooting pains down her arm, and debilitating
headaches.  Her mother described her right arm as flaccid, almost like that of
a stroke victim.

The Plaintiff’s Surgery

[17]        
The plaintiff, in consultation with her family physician, arranged for another
MRI to be done in December of 2008.  It was assessed by Dr. Gittens, a
neurosurgeon, who indicated that there was a significant narrowing of the
intervertebral foramen at the C6-7 level.  This led to his recommendation for surgery.

[18]        
Ms. Gormick described being terrified by the surgery and that in
the period leading up to it had migraines all the time, was unable to sleep
without Tylenol 3, was overwhelmed by pain, and had difficulty holding things
such as a bottle of orange juice.  After being bumped twice, her surgery took
place on February 23, 2009.

[19]        
The plaintiff underwent disc replacement surgery to her C5 and C6 spine
and a neck fusion.  The plaintiff’s surgery was regarded as successful,
although there is an issue about whether she still continues to experience symptoms.

[20]        
The plaintiff said that prior to her surgery date, she was approached by
the municipal undercover team to work for one year on undercover projects for
the Olympics.  She says that although she was very interested, she informed
them of her anticipated surgery, and that she would be in a neck brace for a
couple of months after the surgery.  She said that they then turned her down to
work on the Olympics project.  Ms. Gormick said that this opportunity, for
which she had the required Level II qualification, would have lasted for at
least a year.  In the end, she said another police department gave an employee
release time to work there.  This opportunity, as I will discuss below, is
disputed by the defendants.

The Plaintiff’s Time Off Work and Recovery

[21]        
Ms. Gormick described that in the summer of 2009, her activity
level was down, she still had pain regularly, but not like it was prior to the
surgery, and she still had neck soreness and limited range of motion.

[22]        
Following the surgery, Ms. Gormick said the numbness in her arm was
gone but she still experienced weakness in her arm and stiffness.  She said
that six months after the surgery, she no longer had headaches, but described
being able to sleep only on one side.  She was always active, she said, but she
knew her limitations.  She said she could not move her neck, nor work or
compete physically as she could before.  She said she could not throw a
softball anymore, and she experienced stiffness in the upper part of her neck
and weakness in her upper deltoid.

[23]        
As to her present condition, she testified that although her numbness
subsided and she quickly regained strength, her right arm strength only came
back to 70-75% of what it once was, that she experienced daily stiffness and
discomfort and what she described as dull pain.  She testified that her range
of motion is restricted, particularly when she shoulder checks while driving,
which results in her having to move her body around to properly see her blind
spot.

[24]        
The plaintiff asserted that she has stopped doing activities that she
did before such as volleyball, baseball, rock climbing, cycling, and
snowboarding.  She said she used to have a “rocket for an arm”, but now she finds
it difficult to throw a ball.  She said she cannot move her neck as before; she
described major stiffness in the higher part of her neck.  Although still
active, she no longer participates in competitive sports and is not as fit as
she was.

[25]        
Since the accident, there have been a number of developments in the
plaintiff’s work and personal life.  Following the surgery, the plaintiff
became pregnant.  She gave birth to her first child on December 4, 2009.  She
returned to work after maternity leave, and then had her second child on October
15, 2012.  She is presently on maternity leave. She said her condition affected
how she could hold her son.

[26]        
The plaintiff called her husband, her mother, and a friend, Ms. Vincent,
as witnesses in the trial.  Her husband described her as plateauing and
continually stiff.  The plaintiff described her current situation as not
improving, but the pain is not debilitating.  She is stiff all the time and the
pain, she said, is always there.

The Medical Evidence

[27]        
Dr. Choo Fone, a general practitioner in family medicine and Ms. Gormick’s
family doctor since 2002, prepared a report dated August 7, 2012, and testified
at trial.  He had seen Ms. Gormick before the accident in 2004 and 2006 for
right shoulder pain and numbness down the right arm.  He sent her for the CT
scan in 2006, and she was seen by Dr. Chan, a neurosurgeon.  Dr. Chan
ordered an MRI, which was done on November 3, 2007, however Ms. Gormick
was deemed not to be a surgical candidate at that time

[28]        
Dr. Choo Fone was of the opinion that Ms. Gormick suffered a
grade two whiplash associated disorder injury to her neck and her lumbar spine from
the accident, and developed numbness in her right arm within one month of the
accident.  He believed the aggravation in her neck pain was a direct result of
the motor vehicle and the pre-existing degenerative neck disease was aggravated
by the accident by worsening of the neck lesions, when the post-accident MRI (from
December 2008) was compared with the CT scan from 2006 and the MRI from 2007.

[29]        
Following the accident, the plaintiff was referred to Dr. Gittens,
a neurosurgeon.  Dr. Gittens saw Ms. Gormick on January 23, 2009.  Dr. Gittens
summarized the cause of her injuries this way:

Ms. Gormick suffered a soft
tissue injury to the neck, right scapular area, right knee, shoulders, along
with early posttraumatic headache.  The accident also aggravated/activated her
cervical spondylosis resulting in neck pain, radicular pain and paresthesias in
the right upper extremity which ultimately resulted in her requiring surgery.

[30]        
He noted the previous referral to Dr. Chan and observed that the November
3, 2007 cervical spine MRI study showed mild degenerative change at the C4-5
level, and degenerative changes were also noted at the C5-6 with uncovertebral
joint changes and facet joint arthritis.  He said:

At the C6-7 level in addition to
facet joint arthritis and uncovertebral joint changes, there was a posterior
osteophyte predominantly on the right side causing mild stenosis of the
intervertebral foramen.

[31]        
Dr. Gittens defined radiculopathy as symptoms of a pinched nerve in
the neck including neck pain, pain which extends into the shoulder or extremity
along with numbness, tingling and weakness.

[32]        
When he referred to the accident aggravating or activating the
plaintiff’s cervical spondylosis, he said it “activated a condition that was
asymptomatic”.  He agreed the spondylosis was pre-existing to the motor vehicle
accident.  In terms of cervical spondylosis, he said some people use the term
degenerative disc disease which just means a degenerative change in the discs
associated with those arthritic changes.  He opined that doctors on MRI scans are
seeing such degenerative changes in younger people.  He agreed it was unusual
to see these changes in someone of the plaintiff’s age (she was in her 20’s at
the time), but he pointed out that more MRI scans are now being undertaken, as in
the past on the basis of a CT scan such degenerative changes would not be
apparent.  He agreed she was symptomatic when she saw Dr. Chan in 2007 and
agreed that it brings up the possibility that she is going to have problems in
the future with her neck.

[33]        
Dr. Gittens described her as having made an excellent recovery
(from the surgery) and gave this prognosis:

In regard to the prognosis, it is anticipated that Ms. Gormick
will continue to do well.  However, there is a slight risk of adjacent segment
disease i.e. degenerative changes at the level adjacent to spinal fusions.  The
risk of this is small but occasionally the symptoms may be such that further
interventions including physiotherapy and even surgery may be considered.

…

When I saw Ms. Gormick I anticipated that she would be
able to resume her full activities including household tasks, yardwork, and to
function as a police officer without restriction.

I have commented on the remote
possibility of surgery.  It is possible that Ms. Gormick may experience
from time to time some neck pain and discomfort.  Whether this would be related
to the motor vehicle accident would be doubtful and more likely the result of
degenerative changes in the cervical spine.

[34]        
When Dr. Gittens said that there is “no contraindication to her
doing surveillance work as long as she is not involved in any altercations” he
said he thought surveillance work meant just looking and reporting, rather than
going out and actually doing an arrest.  He described the surgical procedure was
not undertaken to improve the range of motion of the neck; the surgery was a
fusion, the purpose of which was to relieve her symptoms, which were pain and a
pinched nerve.  He agreed that her range of motion before the accident was
likely not normal.

[35]        
Dr. Choo Fone, after commenting that Ms. Gormick had missed
eight months of work, said:

I believe that Ms. Gormick’s
injury has been ameliorated by the surgery and she is not having any issue with
her neck at present to the best of my knowledge.  I do not rule out that Ms. Gormick
may experience some discomfort or low grade symptoms in her neck in the future.
Her injuries are not interfering with her full work duties.  She may require
symptom relief now and again with any of the allied health professional such as
physiotherapy or anti-inflammatory medications.  I believe Ms. Gormick’s
prognosis is good based on her present condition.  I do not believe she will
have any permanent limitations or disability.

[36]        
The plaintiff was seen by Dr. Alister J.E. Prout, a neurologist, at
the request of the defendant.  Dr. Prout does about 85% of his reports for
ICBC.

[37]        
Dr. Prout, like Dr. Gittens, agreed that before the accident the
plaintiff had an elevated amount of degeneration in her neck for her age.  He
said that after returning to work after the accident, Ms. Gormick became
disabled for a period of months as a result of injuries she sustained in the
accident and the development of subsequent increased cervical nerve root
impingement due to disc protrusion and degenerative changes in the cervical
spine.  In his opinion, the subject accident caused or precipitated the nerve
root impingement in the cervical spine in the setting of pre-existing
underlying degenerative cervical spine disease.  He said:

At this time there do not appear to be any specific medical
problems that will result in any temporary or permanent disability with the
exception of some residual neck stiffness and decreased range of motion due to
her spinal fusion that may limit her ability to perform at a higher level in
very vigorous recreational physical activities.  Ms. Gormick will have a
permanent mild reduction in the flexibility of the neck.

There is a possibility that Ms. Gormick
will develop more degenerative cervical spine disease that would have occurred
in the absence of the subject accident.  Given that Ms. Gormick has had a
cervical fusion it is unlikely that they will be the development of significant
increased problems with the passage of time at the level of fusion although
increased degenerative changes above and below the cervical spine fusion may
occur with the passage of time although these changes would not be attributable
to specific injuries sustained in the subject accident, those injuries having
represented primarily soft tissue injuries with as well as an increase in the
amount of pre-existent disc protrusion at the levels described.

[38]        
In terms of future treatment, Dr. Prout recommended that “[s]he
should be encouraged to continue a vigorous self-directed physical exercise
program”.  Dr. Prout said that the limitation on “her ability to perform
at higher levels in very vigorous recreational physical activities” was a
reference to things of the intensity of ballet dancing or hip-hop dancing.  In
terms of vigorous recreational physical activities, he said:

Well, I didn’t find any signs or
get any story of a limitation that would stop her from returning to all the
duties that she could do as a policeperson, so that would include having to be
in situations of conflict, running, jumping, being physically active.  I didn’t
see anything on the examination that would restrict her from doing those.

[39]        
Dr. Prout acknowledged that Ms. Gormick was at risk for a
small disc bulge because of her pre-existing problem but it was the accident
that made the narrowing worse.  Dr. Prout agreed that before the accident
she was clearly not a surgical candidate and only potentially would have required
surgery in the future.  He also agreed that having the level of degeneration she
had does not mean that she was going to be symptomatic.

[40]        
As a result of the surgery, the plaintiff experiences neck stiffness and
decreased range of motion, symptoms which Dr. Prout indicated occur
together.

[41]        
Dr. Prout said that he was not told by Ms. Gormick that she
had residual weakness in her arm.  His impression from what she said was that
if she did certain things more she gets tightness or tension or discomfort, he
could not recall which it was, but he did not get the impression she said more
pain.

[42]        
The plaintiff called Dr. Gouws who examined the plaintiff for the
purposes of giving an opinion on her degree of impairment.  He was allowed to
testify as a physician with expertise in a person’s ability to return to work.

[43]        
Dr. Gouws acknowledged that the plaintiff had a good outcome from
surgery and was doing well, was highly regarded in her career, and was without
incapacitating or debilitating problems.  He gave these opinions in his report:

76.       Ms. Gormick’s responses on the pain disability
index and the catastrophization and kinesiophobia questionnaires indicated that
she is well adjusted and that she has a realistic perception of her own mental
and physical abilities.  Her scores on the depression inventories indicated
that she has no emotional comorbidities.

77.       Ms. Gormick cooperated fully throughout this
assessment and appears to be appropriately motivated to be as functional as
possible. There are no obvious barriers to full recovery in aspects over which
she has control.

78.       Ms. Gormick continues to experience pain with
prolonged activities, including sustained work-intensive sitting postures,
which is an integral part of her current work.  Ms. Gormick reported that
she usually copes by alternating tasks, taking breaks when possible and by
moving around.

79.       Although Ms. Gormick will most likely meet the
physical demands of her occupation as a police officer once she resumes work
following her maternity leave, it is my opinion that she will be at increased
risk of reinjury and aggravation of her symptoms should she continue with
operational duties. Ms. Gormick’s specialized skill set and experience
will most likely allow her more options to do alternative work (similar to what
she has been doing up to date).

80.       In view of the fact that Ms. Gormick is now
more than four years post injury, it is my opinion that her prognosis for a
full resolution of her symptoms remains guarded, and that she will most likely
continue to have to contend with her symptoms and adapt her work and
non-occupational activities to allow her a reasonable degree of symptom
control, indefinitely.

81.       It is my opinion that, as a result of the motor
vehicle accident of August 21, 2008, Ms. Gormick is not as competitively
employable in her occupation as she was before.  Following this accident she
experienced significant neurological symptoms, which included weakness and
numbness as well as headaches and upper back and shoulder pain.  Her
neurological symptoms responded well to surgery but she has been left with
ongoing muscle pain and an associated intolerance for sustained activity.

82.       In view of Ms. Gormick’s
relatively young age, and the fact that she has at least 17 years left in her
career with the Port Moody Police Department, it is unlikely that she will be
able to perform operational duties for the remainder of her career.

[44]        
Although Dr. Gouws indicated the plaintiff would be at an increased
risk of re-injury, the defendant points to Dr. Prout’s opinion when he
indicated on cross-examination:

She’s now got a fused neck that’s
stable and not at risk of slipping, herniating the disc causing increased
compromise.  She would’ve been at risk for those things before the surgery
because she had potentially unstable disc degeneration at two levels.  If I
restricted her, I would’ve restricted her before the neck surgery and before
the accident if I’d restrict her now.

[45]        
Ms. Gormick noted a pain threshold of 1-2 out of a 10 basis scale
and the defendant pointed out that Dr. Gouws found no abnormalities on a
functional examination, and no weakness or muscle wasting in her limbs. 
Counsel suggested Dr. Gouws’ opinion that she can no longer perform
operational duties to be without a basis, given his concession she will meet
the physical demands of her occupation as a police officer when she returns
from maternity leave.

Damages

Causation

[46]        
The burden, of course, is on the plaintiff to prove the extent of the
damage caused by the defendant’s negligence.

[47]        
This case involves a consideration of the law where a plaintiff suffers
from a pre-existing condition.  The law concerning the so-called thin skull
rule and the so‑called crumbling skull doctrine was described in Athey
v. Leonati, [1996] 3 S.C.R. 458 at paras. 34-35:

34        The respondents argued that the plaintiff was
predisposed to disc herniation and that this is therefore a case where the
"crumbling skull" rule applies.  The "crumbling skull"
doctrine is an awkward label for a fairly simple idea.  It is named after the
well-known "thin skull" rule, which makes the tortfeasor liable for
the plaintiff’s injuries even if the injuries are unexpectedly severe owing to
a pre-existing condition.  The tortfeasor must take his or her victim as the
tortfeasor finds the victim, and is therefore liable even though the
plaintiff’s losses are more dramatic than they would be for the average person.

35        The so-called
"crumbling skull" rule simply recognizes that the pre-existing
condition was inherent in the plaintiff’s "original position".  The
defendant need not put the plaintiff in a position better than his or her
original position.  The defendant is liable for the injuries caused, even if
they are extreme, but need not compensate the plaintiff for any debilitating
effects of the pre-existing condition which the plaintiff would have
experienced anyway.  The defendant is liable for the additional damage but not
the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780
and John Munkman, Damages for Personal Injuries and Death (9th ed.
1993), at pp. 39-40.  Likewise, if there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence, then this can be taken into
account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th)
1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson,
supra, at pp. 851-852.  This is consistent with the general rule
that the plaintiff must be returned to the position he would have been in, with
all of its attendant risks and shortcomings, and not a better position.

[48]        
In the recent decision of Sangha v. Chen, 2013 BCCA 267, Saunders
J.A. at para. 30 referred to the decision of the Supreme Court of Canada
in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3:

[78]      It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort.  The rules of causation consider generally whether
"but for" the defendant’s acts, the plaintiff’s damages would have
been incurred on a balance of probabilities.  Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that
damage.  The rules of damages then consider what the original position of the
plaintiff would have been.  The governing principle is that the defendant need
not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: Athey.

[49]        
The plaintiff was clearly a “thin skull” who was injured in the
accident.  One issue in assessing general damages and loss of earning capacity
is whether there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence.  If there was a measurable risk, that must be taken
into account in determining the appropriate award.

General Damages

Plaintiff’s Position

[50]        
The plaintiff argues that, but for the accident, she would not have
sustained the injuries and losses claimed.  Although she had spondylosis of her
cervical spine before the accident, Ms. Gormick was not a surgical
candidate, only experienced mild, episodic pain every couple of months, and was
not disabled in any manner.  The plaintiff argues that, but for the accident, she
would not have undergone surgery, would not have been left with her neck having
functional limitations, permanent stiffness, and discomfort, vulnerable to
flare-ups, deterioration, and decreased right arm strength.  The plaintiff says
that the expert evidence confirms that the collision aggravated her condition
and is uncontradicted.  Ms. Gormick’s current injuries, according to her counsel
are indivisible from those sustained that existed before the collision, and, the
defendant is responsible for the whole of her loss.

[51]        
The plaintiff claims that there was no evidence of a real or substantial
possibility, or even a measureable risk, that her pre-existing cervical
spondylosis would have become symptomatic in the future, other than mild
intermittent symptoms that she was experiencing, and as such she could be
described as a thin skull with no measurable risk that her pre-existing
condition would become symptomatic.  As a result of the accident, according to
the plaintiff’s counsel she now faces  a 25% risk of suffering adjacent segment
disc disease within 10-15 years, requiring possible surgery or physiotherapy; she
is limited in her capacity to perform some aspects of her work, particularly as
it pertains to operational policing and callouts; her right arm is weaker; her
capacity to lift is diminished; and she is unlikely to ever be able to return
to anything close to her pre-collision activity level.  The injuries, her
counsel submits, are permanent and life-changing, and the fact that she is
stoic should not reduce her award.

[52]        
In the plaintiff’s submission, the proper award for non-pecuniary
damages should be in the range of $110,000-$120,000 with the award being
$110,000.

Defendant’s Position

[53]        
In terms of the damages for personal injuries for non-pecuniary damages
the defendant reviewed a number of authorities and cited Athey at
para. 35:“if there is a measurable risk that the pre-existing condition
would have detrimentally affected the plaintiff in the future, regardless of
the defendant’s negligence, then this can be taken into account in reducing the
overall award”.

[54]        
The defendant’s argument is that damages should be awarded with a 25%
reduction for the measurable extent to which the plaintiff would be disabled in
any event, or in the alternative, an award between $50,000-$70,000.

[55]        
A major factual question, according to the defendant, is whether the
plaintiff had fundamental pre-existing problems greater than she lets on in her
evidence.  Importantly, the defendant says that her circumstances before the
accident were sufficiently serious such that her GP ordered a CT scan of her
cervical spine and noted that it revealed an abnormality at the C6-7 level and referred
her to a neurosurgeon.  The MRI done prior to the accident noted that there
were unconvertabral joint changes and facet joint arthritis.  Although it was
mild, there was pressure being put by the posterior osteophite (bone spur) on
the nerve.  The plaintiff was warned not to put herself in situations where she
could hurt her neck.

[56]        
Drs. Prout, Gittens, and Gouws all said that Ms. Gormick had an
elevated amount of degeneration in her neck and she was vulnerable before the
accident.  The defendant noted that Dr. Gittens said that in most people
there is a gradual worsening of the degree of disc narrowing and arthritis as
they age.  Dr. Prout said that a patient still in her 20s with that kind
of disc degeneration was quite likely at some point in her life to need to have
something done about it.

[57]        
The defendant said that prior to the accident Ms. Gormick concedes having
impairment of range of motion, trouble turning her head to the right, and that her
symptoms were aggravated by heavy work.

[58]        
The defendant acknowledges that the surgery was brought about or caused
by the accident, and that following surgery it took three months for her to
recuperate.  However, the surgery had an excellent result and, according to Dr. Gittens,
she had gross normal sensation in the upper extremities and her strength and
reflexes returned to normal.

[59]        
Not only was her recovery good, but importantly, the defendant says, the
medical prognosis that should be accepted is not for any continuing problems
caused by the accident.  Dr. Choo Fone, her general practitioner, noted on
August 15, 2009, on what was the last visit regarding her motor vehicle
accident, that for all intents and purposes she was deemed to have recovered
from her accident injuries.  He reported that her injury had been ameliorated
by the surgery and she was not having any issue with her neck at present to the
best of his knowledge (he pointed out that in his note that he does not believe
she will have any permanent limitations or disabilities).  The defendant says that
Dr. Choo Fone’s comment is a very strong statement. If it was not true the
plaintiff would have made that quite clear to him, but she did not.

[60]        
Dr. Gittens indicated that as of his report of July 7, 2012, he
anticipated Ms. Gormick would be able to fully resume her full activities,
including household tasks, yard work, and function as a police officer without
restrictions.  He said that “whether the plaintiff will experience neck pain
and discomfort on occasion in the future” and “whether this would be related to
the motor vehicle accident would be doubtful and more likely the result of
degenerative changes in the cervical spine”.

Discussion

[61]        
What is the appropriate award for non-pecuniary
damages? 

[62]        
Stapley v. Hejslet, 2006 BCCA 34, describes some of the factors to be considered when
assessing general damages.  They include:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

(h) impairment of physical and mental
abilities;

(i) loss of lifestyle; and

(j) the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff).

[63]        
The plaintiff suffered injuries that were caused by the accident which
resulted from the defendant’s negligence.  Although the injuries resulted in
the need for neck surgery because the plaintiff had a pre-existing condition, the
accident was the cause.  Her neck condition had in the past been symptomatic
but at the time of the accident it was largely asymptomatic, the plaintiff was
fit and feeling well generally and surgery was unlikely but for the accident.  It
appears on the evidence that the likelihood of surgery was in the range of
10%.

[64]        
The injury to the plaintiff’s neck that resulted in surgery was painful
and debilitating.  She suffered from the neck pain until she was able to have
the surgery some six months after the accident and it took her three more months
to recover from the surgery.

[65]        
The surgery, according to my assessment of the evidence, was a success
and resulted in the extreme pain being removed.  Although the plaintiff has
restricted range of motion and some stiffness in her neck, the evidence
supports the conclusion that after the surgery and the recovery time of three months
post-surgery she has largely recovered from her debilitating symptoms.

[66]        
The defendant says that although the thin-skull rule indicates the defendant
“takes his victim as he finds him”, the defendant here should only be
responsible for the injury that he has caused, and not the symptoms that Ms. Gormick
would have suffered in any event.  That is correct.  Although surgery was
unlikely, I find that the plaintiff would have had some neck pain in the future
given her pre-existing condition.  However, the symptoms that the plaintiff
suffered pre-accident were much less severe than the condition that resulted from
the accident, and which led to her surgery.  However, her pre-accident condition
was not without complaint, and I think was somewhat more troublesome than the
plaintiff suggests.

[67]        
The question is whether there a measurable risk that the plaintiff would
have required surgery in the future in any event, which would have resulted in similar
stiffness and restriction on her range of motion to that which she presently experiences. 
The evidence, although very general, shows that most people with spondylosis do
not require surgery, but some — about 10% — do.  In the plaintiff’s case, she
had, according to the medical evidence, an elevated amount of degeneration in
her neck, and it appears that, at some point during her life (although it was
by no means clear when), she may have required surgery for her neck.

[68]        
I think that there is a measurable but modest risk that the plaintiff’s
condition that resulted in surgery would have manifested itself in any event. 
That factor, though measurable, is much more modest than the defendant asserts.

[69]        
I also take into account in assessing the impact of the injuries on the
plaintiff that she did not have a trouble free neck prior to the accident. 
However, it did not particularly limit her activities which she maintained at a
very high level.  Accordingly, although her neck caused her problems and lead
to her investigating and discovering that she had spondylosis, it did not
significantly impair the active life she engaged in.  Although she had flare-ups
that resulted in her need to see specialists and a chiropractor, her activities
in her daily life and her work showed that it did not have a significant
impact.

[70]        
The surgery was successful.  There was no medical evidence to the
contrary.  However the plaintiff complains about problems that persist.  I find
that the plaintiff does have restricted range of motion and neck stiffness
following the surgery.  The difficult question is whether the plaintiff suffers
more than that.  The plaintiff says that her right arm is weaker, she has a
reduced capacity to lift, and she is unable to return to her pre-accident
physical condition.  The plaintiff was generally a credible witness and her reports
of ongoing pain found support in the observation of family witnesses.  However,
the weight of the medical evidence indicates that not only was the surgery
successful, but her surgeon thought that future neck pain would more likely to be
the result of degenerative changes in her cervical spine.  Her family physician
thought that after having missed eight months of work she was not having any
issue with her neck.  Although Dr. Gouws’ assessment provides some support
for the plaintiff’s ongoing pain and discomfort, I think that the whole of the
medical evidence establishes that apart from some ongoing restriction of motion
and stiffness, the plaintiff only has modest ongoing discomfort and some
weakness in the strength of her arm.

[71]        
In sum, the plaintiff had some neck pain and restricted motion prior to
the accident that did not impair her work or ability to enjoy life to any
measurable degree.  Because of her underlying condition, which was largely
asymptomatic, she suffered injuries in the accident that were extremely painful
and required surgery.  The surgery, though successful, has resulted in
stiffness and restricted motion that appear to have affected the strength of
her throwing arm and her ability to lift.  Although surgery was not a likely
option for her pre-existing condition, now that she has had it she is at 25%
risk of suffering adjacent segment disc disease within 10-15 years.

[72]        
In all the circumstances, I assess general damages at $90,000.  In doing
so, I also take into consideration the pain and suffering that she will suffer
in the future as a result of her injuries that were caused by the accident.

Past Wage Loss

Plaintiff’s Position

[73]        
The plaintiff also claims past loss of income, which her counsel
describes as a claim of past loss of income-earning capacity.

[74]        
Following the surgery, Ms. Gormick used 480 hours or $17,850.03 in
lost sick hours (her acknowledged lost straight time from February 24, 2009 to
May 14, 2009) and should be compensated for that amount.  That is not in
dispute.  There is an argument whether there should not be a deduction for tax;
I did not receive full argument on this point and if the parties cannot agree on
the extent there should be a deduction from the award for past loss of income
they may make further submissions in that respect.

[75]        
In terms of other past wage losses, the plaintiff submits that a patrol
officer normally works four days on, four days off, with several weeks of
holidays, and that there is often opportunity for overtime, as well as leisure
and rest.  The plaintiff says that she lost overtime, particularly given the
undercover designation which she acquired in early 2008, in terms of extended
tours of duty and callouts which she could not accept.  The plaintiff says that
an eight‑hour callout at $42.713 per hour equates to $683 gross pay per
shift.  The plaintiff says that but for her injuries, she would have had 15 callouts
between September and December 2008, she would have had an overtime contract
with the Olympic project for at least $32,000 (a low estimate according to the
plaintiff’s counsel), 15 callouts in 2011 and five callouts up to April 2012, when
she went on light duty assignment due to her 2012 pregnancy.  The plaintiff
suggests that the lost overtime during the Olympics cost her $32,000 and the
lost callouts in 2008, 2011 and 2012 resulted in a further loss to her of $23,905.

[76]        
The plaintiff therefore advances a loss of past income claim of $55,905
less applicable tax in addition to the sum not in dispute of $17,850.03 (the
amount of her sick bank loss that she says does not attract tax).

Defendant’s Position

[77]        
In terms of past wage loss, the defendant agrees that the plaintiff has
suffered a loss and that the proper determination is characterized as an
assessment of damages for loss of past earning capacity.  This, the defendant
says, should be done on a net of income tax basis.  In terms of the lost
straight time wages, the defendant agrees with the claim for $17,850.03 gross
for the post-surgery period between February 24, 2009 and May 14, 2009.  The
defendant does not agree with the defendant’s position that there should be no
tax deducted when the funds were taken from the sick hours bank but I will hear
further submissions on this point if the parties are unable to agree.

[78]        
In terms of the alleged opportunity to work overtime at the Olympics, the
defendant says that the evidence in this respect is inadequate and not
corroborated.  The defendant argues that the plaintiff did not name the person who
in fact offered her a job.  Further, the defendant says that the evidence as a
whole suggests that the plaintiff was trying to become pregnant, and would not have
seized any overtime opportunity.

[79]        
The defendant says the plaintiff is entitled to lost overtime for the
period November 28, 2008 to June 6, 2009, from when she went on light duties
because of her accident-related injuries, until the date when she entered the
second trimester of her first pregnancy and was not permitted by her employer
to work overtime.  The defendant’s position is to assess her loss of overtime by
measuring the difference between her overtime following the accident and
surgery, and her average overtime earned over a three-year period prior to the
accident.  The defendant says that the plaintiff’s claim for loss of overtime is
exaggerated, and a better calculation based on the overtime that she historically
earned in 2006, 2007, and 2008 would be $6,012.31 for a six-month period, which
would equate to $5,500 net of a deduction for tax.

[80]        
The defendant says that the plaintiff suffered no loss of overtime
income during the 2011 to 2012 years, as during that time she earned her
historical average overtime income.

Discussion

[81]        
It is not in dispute that the plaintiff used 480
hours in sick time in the period following her surgery, or that this amounts to
a total of $17,850.03 in lost income. 

[82]        
The areas of dispute surround callouts and the opportunity of the
plaintiff to work overtime in undercover work during the Winter Olympics.

[83]        
On the assessment of past income loss, in Smith
v. Knudsen, 2004 BCCA 613, Rowles J.A. said this at para. 31:

[31] A case decided after Athey v.
Leonati, supra, and to which the trial judge was apparently not referred,
is Gill v. Probert, 2001 BCCA 331. In that case, Mackenzie J.A. said
this in relation to a plaintiff’s claim for pecuniary loss prior to trial:

[8] As the plaintiff was unable to return
to his employment after the first accident his earnings from that employment,
but for the accident, are hypothetical. The trial judge started with a gross
figure assuming no contingencies. She then considered both positive and
negative contingencies. Positive contingencies included the possibilities of a
further promotion to lead-hand and an absence of lay-offs due to economic
conditions. Negative contingencies included: delay in promotion to printer
until later than 1995; periodic lay-offs due to maintenance closures;
variations in the amount of overtime; and potential illness or injuries
requiring absence from work.

[9] Athey v. Leonati , [1996] 3
S.C.R. 458, relied on by the plaintiff, held that past events such as negligence
and causation between fault and injury must be proved on a balance of
probabilities and thereafter treated as certainties. However, Mr. Justice
Major stated (at para. 27) that hypothetical events need not be proved on
a balance of probabilities, and they are simply to be given weight according to
their relative likelihood. In assessing hypothetical events there is no reason
to distinguish between those before trial and those after trial. In making
an allowance for contingencies the trial judge was assessing the hypothetical
events that could have [a]ffected the plaintiff’s employment earnings,
according to the assessment to their relative likelihood.

[Emphasis
added in Smith]

[84]        
I will discuss callouts and then the alleged Olympic
overtime opportunity.

[85]        
The plaintiff must demonstrate that but for the
injuries that she suffered in the accident, she had a real possibility to earn
more money in terms of callouts and the Olympics work opportunity.  If so, then
I must assess those opportunities as to their likelihood and determine an award.

Callouts

[86]        
The plaintiff claims that she lost 15 callouts at $683
per callout between August 22, 2008 and December 30, 2008.  She claims the loss
from her sick bank in February 2009 to May 2009 for her regular time hours lost
after surgery.  She also claims a loss of 15 callouts in the calendar year 2011
and a further loss of five in 2012.  These are the callouts that she said she
had to turn down because of her injuries in the accident.  She said there could
have been more.  She does not claim for 2010 as she was on maternity leave, and
in 2012 only claims for part of the year as she was on maternity leave for balance
of that year.

[87]        
The question is whether the plaintiff has demonstrated a real and
substantial possibility that she suffered a loss in past income by reason of
her injuries in the motor vehicle accident.  The first issue is the assessment
of the loss that she suffered by not being able to work overtime by callouts.

[88]        
The defendant says that her six-month average prior to the accident was
$6,012.31 and that should be subject to a reduction for some contingencies such
as the possibility she would have worked less overtime due to other injury,
pregnancy-related issues, or time spent completing courses.  This, the defendant
says, suggests a figure for missed overtime opportunity in the period of
November 28, 2008 to June 6, 2009 of roughly six months, of $5,500
gross.

[89]        
The plaintiff says that her overtime opportunities for callouts to fill
in for sickness or injury to others, to attend special events, or to cover
special police incidents such as a kidnapping or murder investigation, is
underestimated by the defendant.  The plaintiff says that she ordinarily would
have a callout of between eight and twelve hours. She testified to turning down
callouts for the remainder of 2008 because of her injury symptoms, and that in
2011 she turned down approximately 15 callouts, and in 2012 she turned down
five, all of which she would have worked if she was uninjured.  She suggested
there could have been as many as twenty in 2011.

[90]        
The plaintiff points to the evidence of Constable Faulkner who worked 38
callouts in 2011 and 27 callouts in 2012 for earnings of $23,212 and $21,063, respectively,
more than double the three year pre-accident average of the plaintiff.   The
plaintiff suggests it is really a matter of personal preference as there is no
shortage for overtime for a Port Moody officer.

[91]        
The evidence suggests that the plaintiff was probably offered more
overtime opportunities in the period following the accident than she had before,
and simply relying on the historical average may lead to an unreasonably low
assessment..  However, apart from that factor, I find that generally her
pre-accident overtime work history is a relatively good indication or a measure
of her loss.  I doubt she would have worked less than her historical average.  The
defendant says that in terms of her claim, at different times relevant to the
litigation, the plaintiff was not entitled to overtime hours because she was on
maternity leave or on light duties due to pregnancies, and for the latter part
of 2010, all of 2011 and early 2012, the plaintiff was fully operational and
earned approximately the same amount of overtime as she had in 2006.

[92]        
I assess her loss of overtime for the period of August 22, 2008, the day
after the accident, to June 6, 2009 (when she went on light duties as a
result of entering the second trimester of her first pregnancy), a period of
nine months, at $12,000.  I take into account the callouts she was offered,
which I find she accurately described, her interest in working overtime, a
somewhat increased opportunity for overtime, the track record of her fellow
employees, her desire to advance her career, and her past overtime earnings
which were increasing.

[93]        
The plaintiff also claims loss of past income for the period in 2011 and
2012 when she says that she had to pass on 15 callouts or more in 2011 and five
callouts in 2012 because of her injuries.  While the defendant says that she earned
pre-accident overtime in 2006 and should not be further compensated for her
average pre-accident overtime when she was not on light duties or maternity
leave, I think that underestimates the callouts that were available to her.

[94]        
I assess her loss of opportunity to earn further overtime for this
period in 2011 and 2012 at a value of $5,000.

Olympics

[95]        
I turn to the claim for past loss of overtime due to losing the
opportunity to work on the Olympic project.  The plaintiff claims the sum of
$32,000 for the calendar year 2009.  I have already awarded some compensation
for the loss of opportunity to work overtime for approximately the first five
months of 2009, which covers a part of the Olympic overtime claim period.  However,
the plaintiff says the Olympic overtime was a greater opportunity, and I think
that if she had received this opportunity and could work it and had not become
pregnant, the measure of this overtime opportunity that was available would be
about $32,000.

[96]        
The defendant points to a number of factors that suggest that this was
not a realistic or substantial possibility, or at least that the claim should
be significantly discounted.  The defendant questions whether there was a real
offer, in that the plaintiff did not identify the person who offered her this
opportunity.   Further, the defendant argues that she would not have worked
during this time as it appears that Ms. Gormick was no longer using an
oral contraceptive since early 2008, which suggests that her intention at the
time was to become pregnant, if possible.

[97]        
However, I conclude, on all of the evidence, that the Olympics project
was a real and substantial possibility for Ms. Gormick.  I accept her
evidence that she was approached to join the Olympic project and although no
formal offer was made it was a more than a serious prospect.  She appears on
the evidence to be an excellent police officer, doing well at undercover work, and
would likely have been a serious candidate for this project.  I found her
evidence to be credible, and not effectively challenged, that she was
approached with the possibility of joining the undercover Olympic team.  Although
Ms. Gormick was off her birth control medication, she said it was for
medical reasons, and although I accept that she was trying to become pregnant,
she was not pregnant at the time she was taken out of consideration for the
Olympic project.  The reason she was taken out of consideration for the Olympic
project was because of her upcoming surgery.  I find she may well have
postponed her pregnancy if she had received the opportunity to join the Olympic
project.

[98]        
I take into account that the opportunity may have afforded greater
overtime to her but, on the other hand, she may have declined it for many
reasons if it was formally offered.  Given that I have already included some
compensation for lost overtime in 2009, and taking into account the likelihood
of this opportunity coming to fruition, and taking into consideration the
negative and positive contingencies, I assess the plaintiff’s loss for the
opportunity of not getting the overtime with the Olympic project at $10,000.

[99]        
Accordingly I award the plaintiff the sum of $27,000 for past income
loss, plus the amount of $17,850.03 for sick time paid out.

Loss of Earning Capacity

Plaintiff’s Position

[100]     In terms
of loss of future earning capacity, the plaintiff says that notwithstanding
that she continues to do well at her particular occupation, she does so at a
reduced level of performance and income and she is entitled to damages for loss
of earning capacity.

[101]     She says
that she has to turn down callouts as she finds taking these callouts too
difficult because work aggravates her injury symptoms.  She relies on Dr. Gouw’s
opinion that she is “at an increased risk of re-injury and aggravation of her
symptoms should she continue with operation duties”.

[102]     In her
submission, because of her neck fusion, it is neither reasonable nor safe for
her to go back to operational policing.  It is her plan to work another 19-23
years, at which time she will consider retiring.  This impacts on her future income
in in two ways.  First, she says, that she will continue in the foreseeable
future to work less overtime through callouts.  Second, she says she has a decreased
ability to be promoted to the rank of sergeant, a rank that based on a $5 per
hour pay adjustment pays about $10,000 more per annum than a constable.  This
impacts the amount of income she will earn over the years, as well as her
pension which is calculated based on the average of her best five years.  Her
position is that to become a sergeant, although there is a multi-stage process,
part of the requirement is to be operational.  The work after the accident that
she found difficult was patrol or operational work because long patrol shifts
sitting in a car impact on her neck to the point that the next day it becomes stiff
and sore.  Ms. Gormick testified that she could not see how she could be
promoted because of her neck limitations and how they impact on her
operationally.  All sergeant positions, she said, requires time in patrol.  She
testified that there are no positions for non-operational sergeants in Port
Moody.

[103]     Various
approaches were advanced by the plaintiff as guidelines to assessing this future
loss.  The plaintiff says that on an earnings approach basis, i.e. if she lost
$10,000 per year until retiring at age 53, or $15,000 a year and retiring at
age 60, that would indicate a present value loss of between $150,000 and
$283,000.  The loss at $10,000 per year, the plaintiff says, reflects the
difference between a constable’s and a sergeant’s annual wage, but does not
reflect the lost pension.

[104]     Another
approach the plaintiff points to is assessing the loss of overtime and the loss
of chances to be promoted on a capital asset basis.  The plaintiff says that
one approach noted in Pallos v. Insurance Corp. of British Columbia
(1995), 100 B.C.L.R. (2d) 260, 53 B.C.A.C. 310, was to award the plaintiff’s
entire annual income for one or more years.  Three years of the plaintiff’s
annual salary, Ms. Gormick’s counsel says, would total $285,000.

[105]     Taking
into account positive and negative contingencies, the plaintiff’s counsel
argues that an award for future earning capacity loss of between $275,000 and
$325,000 is reasonable.

Defendant’s Position

[106]     The defendant
says that according to Steward v. Berezan, 2007 BCCA 150, the plaintiff
bears the onus to prove at trial a substantial possibility of a future event
leading to an income loss.  The Court must then award compensation on an
estimation of the chance the event will occur.  The defendant argues that there
is no evidence of a capacity loss; although the plaintiff might suffer some
discomfort while performing her job as she does when hiking and running, that
is what general damages are meant to compensate: Mayenburg v. Lu, 2009
BCSC 1308.

[107]     Counsel for
the defendant refers to the report of Dr. Choo Fone that her injuries have
been ameliorated by the surgery and Ms. Gormick is not having any issue
with her neck, Dr. Prout’s evidence that Ms. Gormick is able to
return to her full work duties and he does not see anything that would restrict
her from doing these, and Dr. Gittens’ report of July 12, 2009 is that she
is able to resume her full activities including household tasks, yard work, and
to function as a police officer without restriction.  The defendant points out
that Dr. Gouws’ opinion that the plaintiff could no longer perform
operational duties stands alone, and Dr. Gouws conceded that she will meet
the physical demands of her occupation when she returns from maternity leave. 
His functional examination, the defendant says, revealed no abnormalities. 
Although she was vulnerable before the accident, the defendant says that,
according to Dr. Prout’s evidence, she is not at risk for slipping,
herniating her disc and that if he had restricted her, he would have restricted
her before the surgery.

[108]     The
defendant relies on how well Ms. Gormick is doing, and the assessment of
her work by her supervisor, Staff Sergeant Arruda.  The defendant simply says
that her career is not compromised and the fact that she says that she has done
a few shifts and finds her neck stiff after working on the computer is not an
adequate basis for an award for loss of earning capacity.  Counsel for the
defendant says that there is no proven case of loss of earning capacity.

[109]     The
defendant’s position is that while the plaintiff may experience discomfort in
the course of her work, that is insufficient to show a substantial possibility
of a future event leading to an income loss.

[110]     The
question before me is whether the plaintiff has established in the evidence a
real and substantial possibility that the injuries from her accident will
impair her earning capacity to any extent, and if so, what is the proper
assessment?

Discussion

[111]    
As the Court of Appeal pointed out in Perren v Lalari, 2010 BCCA
140:

[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] 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. [as he then was] 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.
…

[112]     The
question initially is whether she has established a real and substantial
possibility and not mere speculation that there will be a future loss.

[113]     As the
plaintiff points out, in Perren at para. 32, Garson, J.A. noted
that the plaintiff may 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 v. Wickware,
1999 BCCA 88.

[114]     The
medical evidence as a whole indicates that the surgery following the accident
was successful.  I recognize that the plaintiff has some ongoing symptoms but
her general practitioner said in 2009 for all intents and purposes she had
recovered and the plaintiff, although she saw this doctor after that report, did
not tell him she disagreed.  Dr. Prout thought she could return to full
duties as a police officer, including being physically active; Dr. Gittens
thought that she could return to function as a police officer without
restriction.  Although Dr. Gouws stated that she could not perform
operational duties for the remainder of her career, his medical examination of
her revealed normal range of motion and no weakness in her limbs.  Ms. Gormick
was a high functioning athlete with a problematic neck who after surgery has
some stiffness and some restricted range in motion.

[115]     Although Dr. Gittens
said that the plaintiff may suffer some neck pain, it was doubtful, in his
view, that it related to the motor vehicle accident and more likely was the
result of degenerative changes in her cervical spine.

[116]     The
plaintiff is a very capable police officer.  She has done well in her career
and I expect, given the evidence of Sergeant Arruda, that she will continue to do
well.  She has had two children and has maintained an active busy life.  I
recognize that she appears to have some symptoms that persist, but to the
extent they were caused by the motor vehicle accident, I have included that in
my assessment of general damages.  I expect that her patrol work may make her uncomfortable
due to stiffness or lack of range of motion, but I am not satisfied that the
plaintiff has demonstrated that the injuries in the accident have given rise to
a real and substantial possibility of a loss of income or capacity in the
future, and as such, I make no award under this head.

Cost of Future Care and Special Damages

Plaintiff’s Position

[117]     In terms
of cost of future care, the plaintiff claims $5,000 for the need for some form
of treatment as it pertains to a kinesiologist or a personal trainer.  Special
damages are sought in the amount of $1,845.

Defendant’s Position

[118]     In terms
of future care, the defendant says the claim for a fitness trainer is simply
not made out on the evidence as she is extremely fit .

[119]     Special
damages are agreed at $1,845.  I do not think that a requirement for a personal
trainer is made out on the evidence.

Summary

[120]    
In summary, the plaintiff is entitled to the following:

(a)           
$90,000 for general damages;

(b)           
$27,000 for past wage loss, in addition to $17,850.03 to compensate her
for lost sick hours;

(c)           
No award for loss of future earning capacity;

(d)           
Special damages of $1,845.

_____________________________________
The Honourable Mr. Justice J.S. Sigurdson