IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130627

Docket: M113059

Registry:
Vancouver

Between:

Lindsey Frances
Dobbin

Plaintiff

And

Corey Gregory
Siewert, Richard Wayne Siewert and
Theresa Lily Hall

Defendants

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

A.   
Introduction

[1]            
This action arises out of a motor vehicle collision that occurred on July
8, 2009 (the “accident”) on Highway 97 in West Kelowna.  Liability has been
admitted.

[2]            
It is obvious from the photographs of the vehicles after the accident
that they collided at high speed.  The plaintiff is fortunate that her injuries
were not as serious as they otherwise could have been.  She says that, as a
result of the accident, she is suffering from continuous and unrelenting pain
that has permanently changed her life.  She seeks non-pecuniary damages, damages
for loss of past income and future income earning capacity, cost of future care,
special damages and damages for diminished housekeeping capacity.

[3]            
The defendants say that the plaintiff’s accident-related injuries have resolved
or should be resolved in a short period of time.  They also take the position
that the plaintiff is de-conditioned from her pregnancy between the date of the
accident and trial and that she will recover completely from her injuries once
she begins a proper exercise regime.

B.   
Evidence at Trial

The Plaintiff

[4]            
The plaintiff was 23 years old at the time of the accident.  She is now
27.

[5]            
On July 8, 2009, at approximately 5:00 p.m., she was driving eastbound
on Highway 97 near Kelowna.  The posted speed limit was 50 kph.  She was
wearing her seatbelt.  It was rush hour and the four lane highway was busy. 
The weather was warm and sunny.

[6]            
Suddenly, the defendants’ westbound vehicle crossed the center-line and
collided head-on with a Subaru that was travelling eastbound in front of the
plaintiff’s vehicle.  The plaintiff took evasive action but was unable to avoid
colliding with the Subaru as it violently spun around after impact with the
defendants’ vehicle.  The plaintiff’s vehicle was equipped with air bags that
deployed.

[7]            
 The plaintiff described the impact as “intense”, as if she was being
thrown against a brick wall.  Immediately before impact, she raised her left
arm over her head to brace for the impact.  Her arm and face were “burned” by
the air bag.  Her knees hit the dashboard.  She briefly lost consciousness.

[8]            
When the plaintiff awoke, she saw smoke and steam rising from the scene. 
Fluids were leaking.  People were screaming and there was general chaos.

[9]            
The plaintiff was able to exit her mangled vehicle unassisted.  She lost
a shoe in the process and cut her feet on broken glass.

[10]        
Emergency personnel arrived.  The “jaws of life” had to be used to free
the driver of the Subaru.  The plaintiff was in shock.  She began to vomit. 
She was taken to the Kelowna General Hospital where she was examined.  She was
released approximately four hours later.  Complete bed rest was prescribed. 
She complied.

[11]        
The damage to all three vehicles was significant and extensive.  The
plaintiff’s vehicle was written off by ICBC.

[12]        
The injuries the plaintiff sustained were varied and included burns to
her forehead and left arm from the airbag, a sore neck, shoulders and shoulder
blades, bruising from her seat belt, bruises to her face, a bruised spleen
(although a subsequent ultra sound of the area was normal), a sore upper, mid
and lower back, pain in her hips and sore knees.  She was nauseous for
approximately one month after the accident, vomiting two to three times per
week.  She began to experience what she described as migraine headaches three
to four times a week.

[13]        
The cuts to her foot, the burns from the airbag and the bruising to her
face and chest gradually cleared up uneventfully.

[14]        
The plaintiff was unable to tolerate prescription medication for her
ongoing pain due to the side effects.

[15]        
The plaintiff commenced physiotherapy treatments approximately two
months after the accident.

[16]        
The plaintiff did not drive a car for about four to five weeks after the
accident because she was unable to perform a proper shoulder check due to pain
in her shoulders and neck.

[17]        
The accident caused the plaintiff to become anxious about driving.  She has
become terrified of being involved in another car accident.  She “freaks out”
when she is a passenger in a vehicle and is constantly “back seat driving”. 
She is less anxious when she is the driver because she is in control, but
remains extremely anxious about other drivers.

[18]        
The plaintiff described her emotional state after the accident as having
spiralled downhill.

[19]        
The plaintiff’s father owns an earth-moving construction company called
Wiltech Developments Inc. (“Wiltech”).  Wiltech has been in the plaintiff’s
family for at least three generations.

[20]        
The plaintiff worked for Wiltech during her high school summers.  Upon
graduation from high school in 2004, she commenced full time work with Wiltech
as a rock truck driver.  Wiltech’s rock trucks are large and carry 40 tons of
material.  The plaintiff’s job was physically demanding.  She worked 10 hour
shifts and earned $27.50 per hour.  The work was seasonal and she generally did
not work during the winter months.

[21]        
Driving a rock truck is physically demanding.  The plaintiff was
required to service the vehicle each morning, which involved climbing with
lubrication buckets and fuel hoses.  Operating the truck involved a great deal
of bouncing and jostling, particularly while loading and when driving over
rough terrain.  Dumping the load also involved substantial twisting and
shoulder turning.

[22]        
The plaintiff’s plan was to eventually train on other Wiltech earth
moving equipment and to “move up the ladder”, eventually to management.

[23]        
At the time of the accident, the plaintiff was working full time at
Wiltech.  As a result of the accident, she was unable to return to work and she
began to receive Employment Insurance (“EI”) benefits.

[24]        
In November 2009, four months after the accident, the plaintiff felt she
had improved enough to return to work at Wiltech.  However, the long hours of
twisting, bouncing and sitting in the rock truck aggravated her accident-related
injuries to the point that, after only four days, she had to stop work and
return to bed rest.

[25]        
In January 2010, the plaintiff began seeing a kinesiologist twice a
week.  The kinesiologist prescribed stretching and light exercises in order to
improve the plaintiff’s conditioning.   This increased activity caused the pain
in her neck, back, shoulders, hips and knees to flare up.  The plaintiff had to
cancel several of her appointments due to the intensity of the flare-ups.

[26]        
In March, 2010, the plaintiff’s EI benefits expired.  She began working
as a server at a Kelowna pub which she enjoyed.  However, she was only able to
work approximately four weeks due to her accident-related pain which was
aggravated by the fast pace and physical requirements of the job.

[27]        
By April 2010, the plaintiff’s financial situation was such that her
mother began assisting with her mortgage payments as well as her strata fees. 
Subsequently, Wiltech began paying her a small salary even though she was
unable to work as a rock truck driver.  Instead, she performed various small
errands from time to time for the company, such as delivering bids and banking. 
In 2010 the plaintiff received $12,756.00 from Wiltech, essentially as a gift. 
The plaintiff has no obligation to repay this money.

[28]        
In July 2010, the plaintiff once again attempted to return to full time
work at Wiltech.  She continued for approximately one week but had to stop
because her neck and lower back pain flared up.  Her driving anxiety became
heightened.

[29]        
During the summer of 2010, the plaintiff saw a psychologist on four or
five occasions for the purpose of trying to resolve her depressed emotional
state and driving anxiety, both of which she attributes to the accident.  Those
sessions were unsuccessful, in part due to the plaintiff’s dislike of the
psychologist.

[30]        
In the fall of 2010 the plaintiff enrolled in the Certified Education
Assistant program at Okanagan College.  She did well and graduated in January
2011.

[31]        
In March 2011, the plaintiff commenced employment with School District
23 in Kelowna as a Certified Education Assistant, working full time 25 hours
per week.  Her duties include dealing with potentially aggressive children,
children with self-abuse behavioural difficulties and children suffering from seizures. 
She also supervises children at lunch time and on field trips, dispenses first
aid and handles emergency situations.  She continues to be employed in this
capacity.  Although the job is physically and mentally demanding, she
nevertheless finds it rewarding and enjoyable.

[32]        
The School District is aware of her accident-related injuries.  The
plaintiff has not requested any special accommodations from her employer in
respect of them.  Nor has she taken any days off due to her accident-related
injuries.

[33]        
The School District’s annual two-week spring break occurred shortly
after the plaintiff commenced her employment.  During that time, the plaintiff
returned to Wiltech and drove a rock truck at a project in Yellow Lake, east of
Okanagan Falls.  Again, her neck, shoulder, back and knee pain flared up. She
tolerated 47.7 hours of work and earned $1,311.75.  She returned to her job at
the School District after the spring break school holiday.

[34]        
During the summer of 2011, while school was out, the plaintiff collected
EI benefits.  She also did occasional “respite” work, relieving another
caregiver.  She earned $20 per hour for that respite work.  She made no other
attempt to “top up” her School District work hours.  She returned to her job at
the School District in September 2011.

[35]        
Throughout this period, the plaintiff increased her activity.  She
attended spin classes, the gym and yoga.  She walked and did the home exercises
recommended by her kinesiologist.  She also purchased and used a heating pad,
which she found helpful.

[36]        
She described her condition as of late 2011 as follows;

a)    pulsating
headaches, three to four times per week;

b)    sore
neck;

c)     burning
feeling in her upper back between the shoulder blades which became worse with
activity;

d)    lower
back pain;

e)    achy
knees and hips, especially after walking or climbing stairs;

f)     
poor sleep due to pain; and

g)    anxiety while
driving in a vehicle.

[37]        
In early 2012, the plaintiff unexpectedly became pregnant.  She
continued to work at the School District until the summer break and then again
in September 2012 until mid-October 2012 when she went on maternity leave.

[38]        
The plaintiff’s son was born on November 16, 2012.  During the delivery,
the plaintiff broke her tail bone, which resulted in her post-natal recovery
being prolonged.  She was inactive for several months while she recovered.  She
expects to remain on maternity leave until October 2013 at which time she plans
to return to work as a Certified Education Assistant with School District 23 on
a graduated basis, initially working only two days per week to accommodate her child
care responsibilities.  A graduated return to work program would not have been
available to her at Wiltech.

[39]        
The plaintiff lives with and is engaged to the child’s father, Tom
Bowles.  The plaintiff would like to have more children someday but she has no
plans at the moment to do so.

[40]        
Prior to the accident, the plaintiff had no history of pain, headaches
or sleep issues.  She was highly active.  She danced jazz and ballet three
hours per week.  She periodically played golf and tennis.  She snow boarded,
wake boarded, water skied, played baseball and volleyball.  She regularly
attended the gym, including boot camp, and ran.  She was also involved in belly
dance/aerobics during the summer months.

[41]        
As a result of the accident, the plaintiff is unable to participate in
any of those activities.  She has become a spectator.  She attempted to play
tennis but her pain flared up.  In September 2011, she enrolled in a dance
class but was only able to attend three sessions.  Depending on the level of
pain she is in, the plaintiff is able to engage in non-vigorous walking, spin
classes, bike riding on flat terrain yoga and occasional massage therapy.  She
continues to complete her at-home exercises recommended by her kinesiologist to
the extent her pain level allows it.  The greater her physical activity, the
greater her pain.  She found that, during the several months following the
birth of her child when she was inactive recovering from her broken tail bone,
her pain level reduced significantly.

[42]        
The plaintiff’s social life has changed markedly since the accident. 
She described herself before the accident as lively, active, athletic, carefree
and social.  She loved her life.  Since the accident, she feels bitter and sad
that she cannot do what she used to be able to do.

[43]        
The plaintiff’s accident-related injuries have also impacted her ability
to perform household chores.  She is able to do vacuuming and cleaning but it
aggravates her pain.  She has to stagger those activities and pace herself. 
When he is not out of town for work, her fiancé
Tom does the majority of the household chores, including cooking meals and
lifting the baby.

[44]        
The plaintiff described her current condition as 50% of what it was
prior to the accident.  She remains in pain, both physically and mentally.  Her
ongoing complaints from the accident include frequent migraines, daily neck,
shoulder and back pain, and pain in her hips and knees.  She also wakes up at
night due to pain.  Her condition is aggravated by having to lift and care for
her now six month old, twenty pound baby.

[45]        
The plaintiff’s goal is to begin a program of re-conditioning her body
once she finishes breast feeding and feels that she can handle the pain
associated with the exercise regime recommended by Dr. Paramonoff, a
physiatrist whom she saw in preparation for this action.

[46]        
Prior to the accident, the plaintiff’s career plan was to continue to
work at Wiltech, move up the ranks and, together with one or more of her two
siblings, ultimately take over the company upon her father’s retirement.  She
would have done so even with the unexpected birth of her child.  In her words,
“Wiltech was my career”.  She did not have a “stay-at-home” personality.  She
described herself as a competent and respected employee.

[47]        
The plaintiff maintained that, had she been physically able to drive a
rock truck without pain on the three occasions when she returned to Wiltech
after the accident, she would have done so on a permanent basis.  However, her
father made it clear that he was not going to replace a full time worker simply
to allow the plaintiff to experiment as to whether or not she could return to
work.  Wiltech is not a company with a program allowing injured employees to
gradually return to full time work.

[48]        
I found the plaintiff to be a forthright and credible witness.

Valerie Dobbin

[49]        
Valerie Dobbin is the plaintiff’s mother.  She is Wiltech’s bookkeeper
and office manager.

[50]        
Mrs. Dobbin testified regarding how the plaintiff’s personality and physical
condition changed from before to after the accident.  Prior to the accident,
the plaintiff was in good physical condition.  She confirmed the pre-accident
activities that the plaintiff testified to.  Skiing and water sports, in
particular, were a large part of the Dobbin family life.  Since the accident,
the plaintiff has not been able to participate in those and many other family
activities.  She and the plaintiff have gone on occasional hikes and have
participated in spin classes together, but not nearly as frequently as prior to
the accident.  She described the plaintiff as a person who is dedicated to doing
what she can to get better.  She is beginning to see some improvement in the
plaintiff’s condition but, in Mrs. Dobbin’s words, she is living the life of an
older, unfit woman.

[51]        
Mrs. Dobbin confirmed that the plaintiff is coping with housework but
that it is strenuous for her.

[52]        
She also confirmed the plaintiff’s evidence that she becomes hysterical
as a vehicle passenger, constantly worrying that the driver is not seeing what
is happening around the vehicle.

[53]        
Mrs. Dobbin confirmed that she and Wiltech assisted the plaintiff
financially, both before and after the accident. The payments were a gift to
the plaintiff.  The payments made after the accident were made because the plaintiff
was struggling financially.

[54]        
Regarding Wiltech and its future management, Mrs. Dobbin testified that
the company is in her children’s blood and, in her opinion, there is
opportunity for all three of her children to work for the company if they wish
and are able.

[55]        
Mrs. Dobbin provided evidence, through the wages paid to the plaintiff’s
former co-workers, of the income the plaintiff would have earned and could expect
to have earned at Wiltech but for the accident.

Jesse Van Exan

[56]        
Mr. Van Exan is a former employee of Wiltech.  He operated a variety of
Wiltech earthmoving equipment including rock trucks, bulldozers, excavators,
packers and water trucks.

[57]        
He testified that, even though the rock trucks were relatively new and
were equipped with air ride seats and suspension, a driver still “felt it at
the end of the day”.

[58]        
He confirmed that, as an equipment operator working for Wiltech he
earned $64,405 in 2009 and $70,912 in 2011.

Alison Huggins

[59]        
Ms. Huggins has been a close friend of the plaintiff’s since 2001 when
they met in Grade 9.  She testified regarding the plaintiff’s physical
condition, activity level, personality and level of driving anxiety, both
before and after the accident.

[60]        
Prior to the accident, the plaintiff was always fit, athletic and
active.  She was heavily involved in dance.  She also snowboarded, went to the
gym and exercised.  She was bubbly, free spirited, friendly and outgoing.

[61]        
Since the accident, the plaintiff is not as mobile or active as she was previously. 
She usually cuts her physical activities short due to discomfort.  Her energy
level is substantially lower.  She is more irritable.  Lifting her son is
sometimes an effort.  While driving, she is anxious and has trouble making
shoulder turns.

Tom Bowles

[62]        
Mr. Bowles is the plaintiff’s fiancé and the father of the plaintiff’s
child.  He met the plaintiff in Grade 9 and they dated for approximately four
years.  They rekindled their relationship in 2009 shortly after the accident.

[63]        
Mr. Bowles confirmed that, prior to the accident the plaintiff was
actively engaged in several sporting and other activities, including
snowboarding, volleyball, wake boarding, running and dance.  Since the accident,
the plaintiff has not been able to snowboard or wake board.  She signed up for
a dance class with her sister but dropped out after only one session.  In his
words: “she just can’t do those activities any more”.

[64]        
He confirmed that he and the plaintiff travelled to Mexico approximately
six months after the accident and that she seemed to be able to tolerate the
five hour flight, although she did not engage in much physical activity while
in Mexico.

[65]        
He described the plaintiff as being frustrated with her inability to do
what she used to be able to do.  Her current physical activities are comprised
of yoga classes and walking with her son.  Approximately four evenings per
week, for approximately 20 to 60 minutes, the plaintiff does stretching and
“plank” exercises at home and also exercises with an exercise ball and free
weights.  Mr. Bowles has noticed “some” improvement in the plaintiff’s
condition but not much.

[66]        
Mr. Bowles gives the plaintiff a shoulder and back massage most
evenings.  The level of her pain seems to depend upon her activities during the
day.  She doesn’t seem to be able to sit for prolonged periods of time without
changing her position or moving around.

[67]        
Her mood and personality is much more reserved than it was prior to the accident.

[68]        
The plaintiff and Mr. Bowles share the cooking responsibilities but he
does most of the housework.  He hires cleaning ladies approximately once per
month to do the heavier cleaning, for which he pays $100.

[69]        
Mr. Bowles also confirmed the plaintiff’s driving anxieties.

Dr. Gerhard Verster

[70]        
Dr. Verster has been the plaintiff’s family physician since 2004.  He
has been a general medical practitioner for 28 years, both in Canada and in his
native South Africa.  He testified regarding his examinations of the plaintiff
after the accident.  He was also qualified as an expert in general family
medical practice.

[71]        
Coincidentally, Dr. Verster was driving along Highway 97 shortly after
the accident and witnessed the physical damage to the vehicles.  He learned
that the plaintiff was one of the drivers involved when she saw him approximately
six days later on July 14, 2009.

[72]        
During that first consultation, the plaintiff complained of severe pain
in her shoulders, neck and lower back, as well as constant headaches.  She also
reported experiencing abdominal pain.  An ultra sound revealed nothing abnormal
with her abdomen.

[73]        
During the period July 14, 2009 to April 18, 2013, Dr. Verster saw the
plaintiff 25 times.  Most if not all of these consultations were to deal with her
accident-related injuries.  Occasionally, the plaintiff reported improvement in
some aspects of her pain and/or range of motion.  However, during subsequent
consultations she reported that her pain had returned.  Her pain and range of
motion varied from consultation to consultation depending upon what the
plaintiff had been doing physically.

[74]        
Dr. Verster prescribed various pain relief medicines and muscle relaxants. 
Those prescriptions did not help the plaintiff.  He also recommended that the
plaintiff see a physiotherapist and, later a kinesiologist.

[75]        
In Dr. Verster’s opinion, the plaintiff sustained severe soft tissue
injuries to her neck, lower back, shoulders, knees and hips as a result of the accident. 
He believes that she may continue to require physiotherapy, massage therapy in
the future.  He is of the opinion that the plaintiff’s condition is gradually
improving.

[76]        
Dr. Verster agreed that active rehabilitation, including muscle strengthening
and conditioning programs should help the plaintiff, provided the intensity of
her pain allows her to participate in those programs.  However, he pointed out
that there is no “time-line” for when the majority of soft tissue injury
patients recover.  Given that the plaintiff still has pain after almost four
years, it is Dr. Verster’s opinion that the probability of a full recovery has
lessened.  As he put it, some patients simply do not fully recover despite
conditioning and exercise efforts.

Kamila Zloty

[77]        
Ms. Zloty is an occupational therapist who gave expert evidence, without
objection, as part of the plaintiff’s case by way of video deposition.  She was
well spoken, thoughtful, exceptionally knowledgeable and engaging.  She was an
impressive and refreshingly objective expert witness.

[78]        
Ms. Zloty’s physical capacity evaluation of the plaintiff took place on
February 5, 2013.  It was thorough and lasted for 6.5 hours.  It followed a
functional capacity evaluation of the plaintiff on February 1, 2013 conducted
by Robert Gander, an expert for the defendants, an examination on February 4,
2013 by the defendant’s physiatrist expert, Dr. Reebye, and an examination on
February 5, 2013 by the plaintiff’s physiatrist expert, Dr. Paramonoff.

[79]        
The plaintiff gave Ms. Zloty “full and consistent effort” during the
evaluation and provided to Ms. Zloty an accurate representation of her physical
function at that time.  Ms. Zloty was of the opinion that the plaintiff did not
embellish her symptoms.  If anything, the plaintiff overestimated her capacity
for activity.

[80]        
During the evaluation, the plaintiff did not do well with either work
intensive standing or work intensive sitting (although the sitting issues could
have been related to her recently fractured tail bone).  The plaintiff did not
tolerate sustained periods of above-shoulder level reaching.

[81]        
When it was pointed out to her on cross-examination that Mr. Gander, the
occupational therapist retained by the defendants, found the plaintiff was able
to effectively perform in all test situations, she pointed to two differences
in the respective assessments: one, that Mr. Gander did not perform Valpar 4
testing (which specifically assesses prolonged periods of reaching) and two,
the difference between Mr. Gander’s and her assessment could well be
attributable to the fact that, by the time Ms. Zloty examined the plaintiff,
she had been examined by three other professionals over a four day period which,
if anything, reflects the plaintiff’s decreased functioning after sustained
activities.

[82]        
In Ms. Zloty’s opinion, the plaintiff is employable, with the potential
to work in a limited selection of light and medium strength occupations on a
part-time or full-time basis.  Her physical restrictions for employment relate
primarily to any work that requires intensive sitting, reaching, bending,
crouching, kneeling, lifting and carrying.

[83]        
Ms. Zloty is of the opinion that the plaintiff does not meet the
requirements necessary for a rock truck driver due to her reaching and strength
limitations.  In her opinion the plaintiff will not be able to tolerate that
job over long periods of time without aggravating her neck and upper back pain. 
She agreed that attendance at a Wiltech job site to observe the actual rock
trucks in operation would have provided her with a better understanding of the
specific job function and endurance requirements.  She based her assessment on
the normal components of driving trucks that come into play.

[84]        
Ms. Zloty is also of the opinion that, although the plaintiff is not
functionally limited in her role as a Certified Education Assistant, she does
not meet the full requirements of that job because it requires sitting,
possible crouching/kneeling, looking down while working with the student at a
desk, some components of bending to reach for school material and quick
responsiveness to the needs of students.  As she put it:

… when you’re talking about
someone’s ability to work, it’s not just whether or not they can work day in
and day out.  It’s also whether or not they’re comfortable working, whether or
not they’re able to work productively, whether they’re able to do all the
different requirements of their job as well.

The plaintiff is able to do the job, but with discomfort and
pain.

[85]        
Ms. Zloty agreed on cross-examination that future improvement in the
plaintiff’s symptoms may result in an increase in her capacity to function in a
job environment.  She also agreed that the plaintiff is currently
“deconditioned” and that it is possible a graduated return to work program
would allow her to resume her previous job as a rock truck driver, provided the
employer was prepared to accommodate such a program.

[86]        
I have no hesitation in accepting Ms. Zloty’s opinion evidence in its
entirety.

Kevin Turnbull

[87]        
Mr. Turnbull is an economist who provided expert evidence regarding the
plaintiff’s lost earnings and cost of future care claims.  The defendants agreed
that he was qualified to do so.  His report dated March 1, 2013, went into
evidence without objection.

[88]        
Mr. Turnbull’s future care costs report was essentially comprised of
mathematical calculations to help guide the Court in the event that it awarded
such costs.  He pointed out that any award for future care costs should be
grossed-up to offset any income taxes that will be incurred on the investment
income earned.

[89]        
Mr. Turnbull agreed on cross-examination that the information he had
received regarding wage loss was somewhat limited and that a more complete
history of the plaintiff’s earnings would have been helpful.  However, the
information he received, though limited, was focused on Wiltech and in his
opinion was more useful than statistical averages would have been.

[90]        
Mr. Turnbull’s calculation of past wage loss totalled $108,937.  He
based his calculation on the following:

a)    the plaintiff’s
2008 earnings were 85% of those of Mr. Van Exan who essentially did the same
job.  He therefore assumed that the plaintiff’s 2009 (the accident occurred on
July 8, 2009) earnings would have been 85% of those of the same co-worker;

b)    for 2010, 2011
and 2012, he used the average of the highest incomes of Mr. Van Exan and one or
two other co-workers (depending on the year) on the basis that the plaintiff,
by then, would have had the same capacity to earn as the other Wiltech
employees.  For 2012 he included 80% of that average due to the plaintiff’s
pregnancy; and

c)     all actual
income, including EI payments, but not including Wiltech gift payments, were
subtracted as were the income taxes and EI premiums that would otherwise been
paid.

[91]        
Mr. Turnbull agreed on cross-examination that any EI benefits received by
the plaintiff during the summer of 2011 and 2012 would reduce the loss and
should be deducted from this calculation.

[92]        
Mr. Turnbull’s calculation of future wage loss totals $560,701.  He
based that calculation on the following:

a)    a base-line
annual income of $56,757, based upon an average of what the plaintiff would
have earned for 2009 through 2012 had she not become pregnant;

b)    a graduated
return to work at Wiltech after her pregnancy of two days per week during 2013
to 2015; three days per week during 2016 to 2018; four days per week during
2019 to 2021 and full time from 2022 to 2051 when she will turn 65;

c)     subtraction
of projected actual earnings from the plaintiff’s Certified Education Assistant
position with the School District , 25 hours per week, 52 weeks per year;

d)    a discount rate
of 2.5% per annum and adjustments for the plaintiff’s probability of survival,
assuming normal life expectancy, based upon mortality statistics for Canadian
females of her age as published by Statistics Canada; and

e)    there was no
deduction for contingencies associated with early retirement, unemployment or
inability to work due to accident or future pregnancy.

[93]        
Mr. Turnbull was a thoughtful and thorough expert witness who provided a
fair and objective basis for his calculations.

Dr. Catherine Paramonoff

[94]        
Dr. Paramonoff is a physical medicine and rehabilitation specialist
(physiatrist).  She was qualified without debate as an expert in the field of
physical medicine and rehabilitation.

[95]        
Dr. Paramonoff examined the plaintiff on two occasions: September 24,
2010 and February 5, 2013.  Her examination on each occasion was thorough.  Her
reports set out her findings and opinions.  They are detailed and dated the
same date as the respective examinations.

[96]        
The plaintiff’s reported levels of pain in her neck, shoulders and back
improved slightly between Dr. Paramonoff’s first and second examination.  By
February 2013, the plaintiff’s neck extension range of motion had resolved. 
There was some improvement in neck flexion.  There was a mild decrease in neck
bending to the right, although neck bending to the left had generally
improved.  The plaintiff’s back flexion showed some improvement but back
extension showed no improvement.

[97]        
In Dr. Paramonoff’s opinion, the plaintiff sustained soft tissue
injuries as a result of the accident that have yet to fully resolve.  The
subsequent decreased level of physical activity due to the resulting pain
caused a deconditioning of and muscle imbalance within her body which is contributing
to the plaintiff’s ongoing pain symptoms.  The plaintiff is and will continue
to be able to function, but with pain.  The plaintiff’s pregnancy has likely
prolonged her recovery.

[98]        
Dr. Paramonoff opines that there are no medical restrictions to the
physical activities that the plaintiff may participate in and that she will be
better able to tolerate her activities with strengthening and reconditioning. 
Dr. Paramonoff recommends up to 18 sessions of physiotherapy to help guide the
plaintiff towards an independent exercise program for her to carry out on her
own over the long term.

[99]        
Dr. Paramonoff’s prognosis is that the plaintiff will likely improve,
both symptomatically and functionally.  However, the plaintiff will continue to
have residual symptoms and consequential pain as a result of the accident.  In
her opinion, the plaintiff is unlikely to ever fully recover and will simply
have to learn to manage her pain, which will likely continue to flare up from
time to time.

[100]     Dr.
Paramonoff was an impressive witness.  I accept her opinion evidence in its
entirety.

Robert Gander

[101]     As noted
above, Mr. Gander is an occupational therapist.  He was qualified without
debate as an expert in his field.

[102]     He
performed a full-day functional capacity evaluation of the plaintiff for the
defendants on February 1, 2013.  His expert report is dated February 25, 2013. 
It is thorough as well.

[103]     Throughout
the examination the plaintiff exerted consistently high physical effort levels and
behaved in a manner consistent with a person who was interested in doing well. 
Mr. Gander was of the view that there was no basis for questioning the
reliability of her subjective reports or the test results.

[104]     Mr. Gander
observed that, throughout the day, the plaintiff was able to fully and
effectively reach forward and overhead.  She demonstrated normal grip strength
and fingering movements.  She met the reference standard for full body range of
motion.  During some of the testing, the plaintiff requested and was permitted
accommodations in terms of how she performed some of the tasks.  The plaintiff
was able to dependably and safely lift weights of 30 pounds on both an
occasional and frequent basis.

[105]     Mr. Gander
found that the plaintiff was able to function but became fatigued which, in his
opinion, was a reasonably accurate and reliable indicator of her actual
functional capacity.

[106]    
Mr. Gander did not perform an on-site evaluation of the demands of a
rock truck driver for Wiltech.  Instead, he used American and Canadian
published handbooks that rate the job requirements in various occupations,
including dump truck drivers.  He equated the physical demands of a dump truck
driver to those of a rock truck driver.  They included “medium strength force
application”, “frequent reaching and handling” and “being physically able to
endure the strain of driving for long time periods with limited rest stops”.

[107]     In Mr.
Gander’s opinion, the plaintiff does not currently possess sufficient
neck/trunk positioning capacity to effectively manage the entirety of her pre-accident
job demands on a dependable basis.  However, he is also of the opinion that the
plaintiff’s strength capacity meets the majority of that job’s strength
demands.

[108]     Mr. Gander
is also of the opinion that the plaintiff is capable of performing typical
household management and homemaking endeavours, although those activities may
have to be “paced”.  He did not comment on whether the plaintiff would “pay the
price” with increased pain.

[109]     Mr.
Gander’s opinion did not differ substantially from that of Ms. Zloty.

[110]     Mr. Gander
was a credible and helpful expert witness.

Dr. N.K. Reebye

[111]     Dr. Reebye
is a physiatrist who examined the plaintiff on behalf of the defendants on
February 4, 2013.  The appointment lasted approximately three hours, 20 minutes
of which were devoted to a physical examination.  The balance of the time was
used to obtain from the plaintiff’s a detailed account of her history.  He
found the plaintiff to be “a very straight forward young lady” and had no reason
to disbelieve what she told him.

[112]     Dr. Reebye
has impressive credentials and was qualified as an expert in Physical Medicine
and Rehabilitation without debate.

[113]     Dr.
Reebye’s diagnosis is that the plaintiff likely suffered mild to moderate soft
tissue injuries as a result of the accident.    Although he is of the opinion
that these injuries have objectively healed without complication, he nevertheless
agreed that the plaintiff’s pain is likely still present.

[114]     According
to Dr. Reebye, the anxiety that the plaintiff is experiencing about driving is
quite common in serious car accident victims.  Her driving anxiety did not
surprise him.

[115]     Dr. Reebye
agreed that the longer a patient’s pain symptoms last, the worse the prognosis for
full recovery.  He agreed that if pain symptoms are present for more than two
years after a motor vehicle accident, those symptoms are far less likely to
completely resolve.  However, in the plaintiff’s case, he is of the opinion
that, because she is still young and active, her prognosis remains “good” even
though her symptoms have persisted for more than three years.

[116]     Dr. Reebye
recognized that the plaintiff’s pre-accident employment as a rock truck driver
was “very physically demanding” and that she could not have been expected to
return to such a job immediately after maternity leave.  However, he is of the
opinion that the plaintiff will be able to gradually return to that position as
her ability to tolerate residual pain improves.

[117]     Dr.
Reebye’s opinion did not differ substantially from that of Drs. Paramonoff and
Verster.  To the extent there is a difference, it is that Dr. Reebye is more
optimistic the plaintiff will recover significantly.

[118]     Dr. Reebye
is of the opinion that the physiotherapy and kinesiology treatments the
plaintiff received were appropriate.

Mark A. Gosling

[119]    
Mr. Gosling is an economist who testified as a rebuttal expert on behalf
of the defendants with respect to the expert opinion of Mr. Turnbull.  He was
qualified to critique and opine on income loss (past and future) calculations
and projections as well as the cost of future care multipliers that were provided
by Mr. Turnbull.

[120]     One of Mr.
Gosling’s main criticisms of Mr. Turnbull’s calculations is that he made no
adjustment for applicable labour market contingencies such as unemployment and
other reasons the plaintiff might withdraw from the labour force.  Mr. Gosling
was of the view that the application of those contingencies will reduce the
plaintiff’s loss of income estimate by 28%.

[121]     He also
criticized Mr. Turnbull’s use of post-accident former co-worker earnings to
assess the plaintiff’s future wage loss because those co-workers were male. 
This comparison was inappropriate because the plaintiff now has child care
responsibilities and there had been no analysis of the age of those co-workers,
their seniority or their skill level.

[122]     Mr.
Gosling provided the court with various alternative income projections and loss
calculations.  He calculated the plaintiff’s pre-trial loss of income to be
$82,100 if her gift income is not included as income and $66,200 if her gift
income is included as income.  He calculated the plaintiff’s future income loss
to be $179,700 (if she continues working as a Certified Education Assistant)
and $70,900 if she returns to working as a truck driver at Wiltech.  For the
latter eventuality, he assumed a 10% earnings impairment due to her injuries.

[123]     Mr.
Gosling was of the opinion that Mr. Turnbull’s estimate of the plaintiff’s
post-accident income was underestimated if the plaintiff is capable of working
more than 25 hours per week.

[124]     Mr.
Gosling agreed with the future care cost multipliers used by Mr. Turnbull.

C.   
Analysis

a)    Non-Pecuniary
Damages

[125]     The
assessment of non-pecuniary damages in each case is decided on its unique facts. 
It is, however, helpful to consider other cases with similar factual
circumstances for guidance when determining the appropriate award.

[126]    
Counsel for the plaintiff submits that non-pecuniary damages in the
range of $80,000 to $100,000 should be awarded in this case.  He relies on the
following decisions in support of this submission:

1.    
Olson v. Ironside, 2012 BCSC 546 ($100,000);

2.    
Murphy v. Jagerhofer, 2009 BCSC 335 ($100,000); and

3.    
Foran v. Nguyen,
2006 BCSC 605 ($90,000).

[127]     In Olson,
the plaintiff was 19 years old when she was injured in a motor
vehicle accident.  The accident prevented her from continuing a healthy, active
and outgoing life style.  She suffered soft tissue injuries to her back and
neck along with headaches, anxiety and depression.  She also continued to
suffer from chronic cervicogenic headaches on a daily basis, exacerbation of
pre-existing migraines, post-traumatic thoracic outlet syndrome, chronic sleep
disruption, major depression (in remission at trial), post-traumatic stress
disorder (in partial remission at trial) and permanent right temporomandibular
joint dysfunction.  Like the plaintiff here, she was unable to perform
restaurant work, due to her physical limitations.  The court awarded $100,000
for her non-pecuniary damages.

[128]     In Murphy,
the 36 year old plaintiff sustained soft tissue injuries in a
rear end collision.  He also suffered from headaches and neck and back pain. 
Some effects of the accident had not resolved and would continue into the
future.  The court awarded non-pecuniary damages of $100,000.

[129]    
In Foran, the plaintiff
suffered chronic pain in her neck and the right side of her upper back.  In
addition, she had chronic daily headaches.  Although some of her symptoms had
improved, it was probable that she would continue to experience these
problems.  As well as losing sleep, feeling constantly fatigued and gaining
weight, there was an increased risk of re-injury.  The court awarded her
$90,000.

[130]    
The defendants submit that an appropriate award for non-pecuniary
damages in this case is $45,000.  They rely on the following decisions:

1.     Hill v.
Durham, 2009 BCSC 1480 ($40,000);

2.     Stone
v. Kirkwood, 2008 BCSC 1295 ($40,000)

3.     Chinguangco
v. Herback, 2013 BCSC 268 ($45,000)

4.     Peck v.
Peck, 2012 BCSC 1617 ($45,000)

5.     Iliopoulous
v. Abbinante, 2008 BCSC 336 ($50,000); and

6.    
Thauli v. Gill, 2009 BCSC 1929 ($50,000)

[131]     In Hill,
the plaintiff was 44 years old at the time of the accident and three years had
passed by the time of trial.  She was an active person before the accident. 
She had worked briefly as a heavy equipment operator before entering the
service industry, eventually gaining a sales management position with a hotel,
travelling between 12 and 14 times a year for its promotion.  The plaintiff’s
only health problem of note before the accident was difficulty with her knees. 
After the accident, Ms. Hill experienced headaches and soreness in her back,
which interfered with her ability to sleep.  She also suffered from pain in her
right knee, which the court found was attributable to the accident.  The court
held that the plaintiff had sustained a moderate soft tissue injury that caused
her significant pain in the first six months.  Her condition was likely to improve,
with the exception of her right knee injury.

[132]     In Stone,
the plaintiff was 25 years old at the time of the accident.  He suffered a
flexion extension injury to the soft tissue in his neck, back and shoulder,
which was moderate in nature.  Demanding activities would cause him significant
pain.  The court accepted the plaintiff’s evidence that his previous back
injury only caused him intermittent plain.

[133]     In Chingcuangco,
the plaintiff was 25 years old at the time of the accident.  She developed
debilitating pain in her neck and lower back as well as headaches.  She also
sustained bruising to her chest and abdomen, pain in a right foot toe and a
chipped tooth.  While the bruising and toe pain resolved relatively quickly,
her lower back pain persisted with flare ups as well as tension headaches,
continuing to the time of trial four years later.  It was determined that she
would be fully recovered within the following year.

[134]     In Peck,
the plaintiff was in university at the time she was involved in a motor vehicle
accident.  She sustained moderate injuries, suffering from continuing neck and
shoulder pain, headaches as well as anxiety.  She experienced limitation in her
ability to engage in her former recreational activities.  The court found that
she was not physically disabled and that she should get better over time.  The
court also found that while the trauma of the accident caused her anxiety, her
prognosis was less guarded than estimated by consulting therapists.  Her
description of her discomfort was at odds with her level of activity.

[135]     In Iliopoulous,
the plaintiff was in two accidents within one year of one another.  At the
time, she was a 45 year old mother of four teenagers and the sole income earner
of the home.  She brought an action against the driver of the motor vehicle
that caused the first accident, alleging she suffered soft tissue injuries that
persisted and were likely permanent in nature and that the second accident had
only aggravated those injuries for a two-week period.  At the time of trial,
the plaintiff complained of pain in her right hip radiating through her waist
and lower back, tingling and, similar to the plaintiff in this case, anxiety
while driving.  The court found the plaintiff had sustained significant soft
tissue injuries in the first collision and that the second collision had only briefly
aggravated her condition.  Her chronic pain was unlikely to resolve.

[136]     In Thauli,
the plaintiff was a 24 year old server at a popular restaurant. She was an
outgoing and active young woman before the accident.  The court found that the
plaintiff sustained an injury to her knee, neck and left upper back as well as
headaches.  The court also found that the pain in her upper left back caused
her depression, which was fully resolved within two years of the accident.  At
the time of trial, she was still having difficulty with heavier tasks, such as
carrying her growing baby.  However, the court concluded that her injuries were
likely recovered, despite her complaint of pain, and that she required more
application in her rehabilitation.

[137]     There is
no question that the plaintiff’s life has changed dramatically as a result of
the accident.  She went from being a highly active, happy, athletic and social
person who engaged in dancing, exercise and many sports to a person who is a
substantially less active spectator, has become more irritable, is anxious
while in a vehicle and has much less energy.  At one point after the accident
the plaintiff, in her words, reached “rock bottom”.  Despite almost four years
having elapsed since the accident, she continues to live with and tolerate pain
in her neck, shoulders and back as best she can.  She still experiences anxiety
when she is in a vehicle.

[138]     Both
Dr. Paramonoff and Dr. Reebye agree the plaintiff will need to manage her
injuries (over the long term, if not for the rest of her life) by active
exercise one hour a day, at least five days a week.  Even with such a regime, in
Dr. Paramonoff’s opinion, she will likely continue to have flares of pain from
time to time.

[139]     After
considering all of the evidence, I find that the plaintiff suffered moderate
soft tissue injuries to her neck, shoulders and back.  Although there is
insufficient evidence to support a finding that she also suffered a mild
concussion, she did experience a brief period of unconsciousness immediately
after the accident and vomiting for approximately one month thereafter.  I also
accept that she continues to suffer from pain and anxiety.

[140]     I find
that an appropriate award for non-pecuniary damages in this case is $60,000.

b)    Past
Loss of Income

[141]     I find
that, but for the accident, the plaintiff would have continued to work at
Wiltech as she had in previous years.

[142]     The
plaintiff’s pre-accident earnings, including EI benefits (during Wiltech’s off
season) were $38,317 in 2007, $52,715 in 2008 (which was 85% of what Mr. Van
Exan earned that year) and $20,164 in 2009 from March to the date of the accident
on July 8, 2009.

[143]     I disagree
with counsel for the defendants that the plaintiff’s average earnings from 2007
to 2009 should be used.  In 2008, the plaintiff earned $50,000 working full
time at Wiltech and received $2,715 in EI benefits.  There is no evidentiary
reason for finding that the plaintiff would not have continued to have
increased her earnings into the future.

[144]     I find it
is more probable than not that (a) the plaintiff would have earned
approximately $54,744 (85% of Mr. Van Exan’s earnings of $64,405) in 2009 ($54,744)
and (b) thereafter, the plaintiff would have had the same capacity to earn as
other Wiltech rock truck operators doing the same job as the plaintiff was
doing prior to the accident.

[145]     I accept Mr.
Turnbull’s projections of what the plaintiff’s gross post-accident earnings to
trial would likely have been but for the accident ($206,413).  I also accept
his calculations of the plaintiff’s gross actual earnings during that period
($63,976) and his resulting calculation of total net loss equal to $108,937,
net of income taxes and employment insurance premiums that would have been paid
by the plaintiff on her lost income.

[146]     However,
it is clear on the evidence that the money the plaintiff received from Wiltech
in 2010 and 2011 ($18,044) would not have been received had the accident not
occurred and had she continued working as a truck driver for Wiltech.  That amount
must be deducted from Mr. Turnbull’s net loss calculations.

[147]     Accordingly,
the plaintiff is entitled to an award for past wage loss of $90,893.

c)     Loss
of Future Income Earning Capacity

[148]     The
burden of proof to be applied to future or hypothetical events has been
discussed by our Court of Appeal in several cases.

[149]     In Parypa v. Wickware, 1999 BCCA 88 the Court of Appeal
stated:

[65] Then how shall we determine the extent
of the damage? What certainties, probabilities or possibilities must the plaintiff
demonstrate in order for the court to conclude there has been damage to the
plaintiff’s earning capacity?  This issue was addressed in Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133 (C.A.).  In Steenblok, the trial judge dismissed
the plaintiff’s claim for damages for loss of future earning          capacity,
finding that the plaintiff had failed to show on a balance of probabilities,
that his chronic pain from a soft tissue injury to his neck and upper back was
irreversible. Hutcheon J.A. allowed the appeal, awarded $150,000 for loss of future
earning capacity, and commented on the applicable burden of proof.  He said at
135:

I think that placed upon the plaintiff an
unduly high burden in the proof of future loss of earning capacity.  I shall
return to a discussion of the burden on a plaintiff in respect of future
events.  It is sufficient at this point to state the proposition of law that in
dealing with future loss substantial possibilities must be considered by estimating
the chance of the event occurring and that the balance of probabilities is
confined to determining what did in fact happen in the past.  That is the law,
as I understand it, decided in Kovats v. Ogilvie, [1971] 1 W.W.R. 561, 17
D.L.R. (3d) 343 (B.C.C.A.); Schrump v. Koot (1977), 18 O.R. (2d) 337, 4
C.C.L.T. 74, 82 D.L.R. (3d) 553 (C.A.); and Janiak v. Ippolito, [1985] 1 S.C.R.
146, 31 C.C.L.T. 113, 16 D.L.R. (4th) 1, 9 O.A.C. 1, 57 N.R. 241.  The
proposition is based on language taken from those three cases.

[150]    
More recently, the Court of Appeal in Moore v. Brown, 2010
BCCA 419 said:

[40]
As was noted in Rosvold (Rosvold v. Dunlop, 2001 BCCA 1, 84
B.C.L.R. (3d) 158)
 at para. 9, the capital asset approach requires an evaluation of
hypothetical events that may affect the award based on simple probability, not
on a balance of probabilities. In Athey v. Leonati, [1996] 3 S.C.R. 458,
Major J. explained the applicable principles, commencing at para. 27:

27.  Hypothetical events (such as
how the plaintiff’s life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities. Instead, they
are simply given weight according to their relative likelihood: Mallett v.
McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary
Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, [1985]
1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s
injuries will worsen, then the damage award may be increased by 30 percent of
the anticipated extra damages to reflect that risk. A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation: Schrump v. Koot
(1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R.
(4th) 1 (Ont. C.A.).

***

29 This point was expressed by Lord
Diplock in Mallett v. McMonagle, supra, at p. 176:

The role of the court in making an assessment of damages
which depends upon its view as to what will be and what would have been is to
be contrasted with its ordinary function in civil actions of determining what
was. In determining what did happen in the past a court decides on the balance
of probabilities. Anything that is more probable than not it treats as certain.
But in assessing damages which depend upon its view as to what will happen in
the future or would have happened in the future if something had not happened
in the past, the court must make an estimate as to what are the chances that a
particular thing will or would have happened and reflect those chances, whether
they are more or less than even, in the amount of damages which it awards.

[151]     Other
British Columbia cases that have applied the same burden of proof: see Perren
v. Lalari, 2010 BCCA 140 at para. 32 and Drodge v. Kozak, 2011 BCSC
1316 at para. 147.  The plaintiff must demonstrate both impairment to her
earning capacity and a substantial possibility that the impairment will result
in a pecuniary loss. As noted, it is open to the Court to
either increase or reduce the damages award based on the percentage chance that
the plaintiff’s condition will worsen or improve. 

[152]     In determining
the extent of loss of earning capacity I must take into account all substantial
possibilities and give them the appropriate weight in relation to how likely
there are to occur: Parypa, at para. 67.  As well, I must consider the
plaintiff’s ongoing duty to mitigate.

[153]     Prior to
the accident, the plaintiff was not simply working in the regular labour market
as truck driver employed by another business without further opportunity.  She
was working for a family company – one that her family had operated for at
least three generations.  She was hard working and respected within the company. 
I find that, but for the accident, she would have likely continued working for
Wiltech and, over time, advanced within the company.  I find it is more
probable than not that she would have ultimately taken over the running of the
company with her siblings upon her parents’ retirement.

[154]     Instead,
she became a Certified Education Assistant.  That was not by choice.  It was an
alternative career she turned to after she was no longer able to work at
Wiltech due to her accident-related injuries.

[155]     I agree with counsel for the plaintiff that, as a result of the accident,
she is less capable overall of earning income and less marketable as an
employee.  She has lost the ability to take advantage of any physically heavy
or medium requirement job opportunities.

[156]     The impairment of her capacity to earn income is not just the
difference between what she would be earning as a rock truck driver and what
she is now earning as a Certified Education Assistant.  Her capacity to earn
income from all sources has been impaired, as was evidenced by her inability to
work as a waitress: Parypa at paras. 30 and 32.

[157]     Despite her
ongoing challenges, the plaintiff remains dedicated to doing what she can to
get better within the limitations she faces.  I have no doubt that she will
continue to strive beyond these limitations and will, in time, improve.  Both
Ms. Zloty and Mr. Gander are of the opinion that, currently, the plaintiff is
not functionally limited from working as a Certified Education Assistant.  However,
she will not be able to function without suffering from pain.  There is
certainly the potential for the plaintiff returning to Wiltech in the future,
if not in operations then in a management capacity.  Regardless, I find that that
there is a substantial possibility she will continue to be affected by her accident-related
pain regardless of her vocation.

[158]     I find
that had the accident not occurred and had the plaintiff become pregnant as she
did in 2012, she is the kind of person who would have adapted and found a way
to continue working at Wiltech.  I make this finding despite her evidence that
her father expected his employees to work full time.  Such is the reality of
being part of a family business, particularly in circumstances where that
business is as integral as it was to the plaintiff’s life.

[159]     Mr.
Turnbull’s calculation of the net present value of the plaintiff’s gross future
loss of earnings, to age 65, taking into account probability of survival
statistics, is $560,701.  The calculations assume a fixed base-line annual
income of $56,573.  They also assume that, after her pregnancy, the plaintiff
would have returned to work at Wiltech two days per week for the first three
years, three days per week for the next three years, four days per week for the
next three years and full time thereafter to the age of 65.  His calculations assume
actual annual earnings of $27,586 from her job as a Certified Education
Assistant.  There is no evidence that more than 25 hours per week will be
available to the plaintiff in that job.  I also note that none of his
calculations take into account potential increases in earnings from cost of
living or the realistic possibility of future training on other pieces of
equipment or management responsibilities at Wiltech.  In my view, Mr.
Turnbull’s calculations are conservative.

[160]     In
contrast, Mr. Gosling’s loss of future earnings calculations focus on broad
statistical data for B.C. truck drivers and include only negative
contingencies, such as potential unemployment and the likelihood of a female
leaving the work force.  In my view, it is not appropriate in the case of
employment in a family company to use statistical average contingencies.

[161]     Mr.
Gosling’s calculations assumed that the plaintiff had worked at Wiltech in 2009
from January 1 to July 8.  He was unaware that Wiltech does not operate during
the winter months and that the plaintiff did not start work that year until
March.  He used statistical labour market contingencies which did not take into
consideration that the plaintiff likely had a greater attachment to the
workforce because her job was in the family business, or that unemployment at
Wiltech was less likely than the statistical average or the opportunities
available to the plaintiff in the management of the family business.

[162]     I prefer
Mr. Turnbull’s approach.

[163]     However, I
find that there is a 50% chance the plaintiff will return to Wiltech at some
point in her working life.  Accordingly, I find that an appropriate award for
her loss of future earning capacity is $280,000.

d)    Cost
of Future Care

[164]    
The
plaintiff has the onus of establishing that the future care costs are
reasonably necessary based upon medical evidence to promote her mental and
physical health: Milina v. Bartsch, (1985), 49 B.C.L.R. (2d) 33 (S.C.) (affirmed
(1987), 49 B.C.L.R. (2d) 99 (C.A.)) at page 78.

[165]     The plaintiff claims the following costs for future care:

[166]     Her claimed one-time
expenses (physiotherapy and counseling) total $1,580.00.  Her claimed annual
expenses total $2,876.00.  The plaintiff says there will be other periodic
expenses such as new heating pads and occasional over-the-counter medication. 
Using Mr. Turnbull’s multiplier (column 8, table 1) to age 65, her claimed
expenses total $60,675 (21,097/1,000 = 21.097 x $2,876 = $60,675}.

[167]    
The
defendants acknowledge that the plaintiff will require the strengthening and
conditioning that has been recommended by the medical experts.  However, they
say that a reasonable rehabilitation program will only occupy six months of
full time attendance and that, thereafter, she should be able to return to work
at Wiltech as a rock truck driver.  On that assumption, they say that the
plaintiff should be entitled to recover a loss of six months of earnings
adjusted for her working only two days per week on a graduated return to work
program, or $9,978.20.

[168]    
There
is no evidentiary basis for the proposition that the plaintiff will become
fully rehabilitated after attending a program for six months full time.  Dr.
Reebye expects that the plaintiff will improve her condition by participating
in a rehabilitation and conditioning program for several months.  He stated
that “relaxation
techniques, breathing exercises, yoga, meditation and other natural methods
will be helpful.  However, if her symptoms do not improve it is better for her
to have a brief period of counselling and/or the use of medications to help
improve her (sic) normalize her emotional upsets”.  He also stated she will
benefit from active exercises, including stretching and strengthening
exercises, breathing techniques, walking and core strengthening.

[169]     On the other hand, Dr.
Paramonoff opined:

I continue to
recommend Ms. Dobbin be referred to a physiotherapist; with a focus now (given
the symptom improvement since I last saw her) on guiding Ms. Dobbin with
implementing an independent exercise program for strengthening and conditioning
(to address the deconditioning and muscle imbalance); up to 18 sessions are
recommended, including checking in over the next approximately 6 months to
guide the exercise progression.  I recommend Ms. Dobbin carry out a regular,
independent exercise program, gradually building up, ideally to 5 days a week,
of one hour each time, and continue with this over the long term, to manage
residual symptoms over the long term.

[170]     I am
persuaded that Dr. Paramonoff’s opinion concerning the plaintiff’s future
treatment needs is more probable than that of Dr. Reebye.  However, I am not
persuaded that the plaintiff’s claim for a gym membership or yoga costs is
justified beyond five years.  I am also persuaded that the plaintiff will not require
massage treatments for her accident-related injuries beyond ten years.

[171]     The
plaintiff is entitled to her claimed one-time physiotherapy and counseling
expenses totaling $1,580.00

[172]     The
plaintiff is also entitled to recover annual expenses for a gym membership and
yoga classes of $1,700 for five years.  The present value of that award (from
Mr. Turnbull’s Table B) is ($5,225 / $1,000) x $1,700 = $8,882.25.

[173]     Finally,
the plaintiff is entitled to recover annual expenses for 12 massages amounting
to $1,176.00 for ten years.  The present value of that award, in 2013 (also
from Mr. Turnbull’s Table B) for ten years is ($9,307 / $1000) x $1,176 = $10,945.03.

[174]     Accordingly,
the plaintiff is entitled to an award for her cost of future care of
$21,407.28.

e)    Diminished
Housekeeping Capacity

[175]     The
plaintiff argues that she has been and continues to be unable to do her
housekeeping chores.

[176]     In Jones
v. Davenport, 2008 BCSC 18, Mr. Justice Halfyard stated, at para. 92
that the plaintiff must:

…establish a real and substantial
possibility that she will continue in the future to be unable to perform all of
her usual and necessary household work.  It would also need to be shown that
the work that she will not be able to do will require her to pay someone else
to do, or require others to do it for her gratuitously.

[177]     The
plaintiff’s evidence is that it takes her much longer to do her household
chores than it did before the accident.  She has to “pace” herself, often
having to rest between chores or stagger them day to day.  Mr. Bowles does much
of the housework and, unbeknownst to the plaintiff until recently, had hired a
cleaning service to clean the house approximately once per month, at a cost to
him of $100 per visit.

[178]     I am
persuaded that there is a real and substantial possibility the plaintiff will
be unable to perform all of her usual and necessary household work as a result
of her past and ongoing accident-related injuries.  However, in my view, any
award in that respect should be modest given that she has been and continues to
be able to do that work, albeit not as efficiently.

[179]     I award
the plaintiff $1,000.00 for past diminished housekeeping capacity.

[180]     I also
award the plaintiff an amount based on a future annual housekeeping expense of
$500.00 for ten years.  Using Mr. Turnbull’s Table B, the present value of that
award is ($9,307 / $1000) x $500 = $4,653.50.

f)     
Special Damages

[181]     The
plaintiff claims the following special damages:

[182]     The
defendants have concerns regarding some of these claims:

a)    the $3,700 yoga
expense is an unsupported estimate.  The plaintiff could not say with any
confidence how many yoga classes she had attended.  Moreover, yoga was not a
modality that was recommended by her doctor.  I accept that the plaintiff
incurred some additional expense for yoga that she would not have incurred but
for the accident.  I assess this expense at $2000.00.

b)   
the mileage expense claim fails to take into consideration the fact
that, but for the accident, the plaintiff would have driven to work at Wiltech,
the daily commute for which took between seven minutes  and one-half hour.  In Bilinski
v. Smith, 1996 CanLII 2821 (B.C.S.C.), Madam Justice Satanove observed:

The Plaintiff claimed $1,521.00 for the cost of travelling
for medical treatment.  The Defendants submitted this was more than offset by
the savings of the cost of travelling to the Langley office on all these days
the Plaintiff never attended work.  As I have assessed damages for the
Plaintiff’s past wage loss without taking into account the amount of money she
saved by not travelling to Langley (over $5,000.00), the Defendant’s point is
well taken.

The defendants say that the mileage for attending
medical appointments is offset by her not having to commute to work at
Wiltech.  I agree.

[183]     The
plaintiff is entitled to recover special damages in the amount of $11,226.32.

g)    Mitigation

[184]     The
defendants argue that the plaintiff has failed to mitigate her loss.  They say
the plaintiff’s attendance at her 26 kinesiologist sessions was fairly
infrequent (usually once per week and twice per week on only 5 occasions).

[185]     The
plaintiff ceased her kinesiologist treatments because they increased her pain
symptoms.  The more active she was, the worse her symptoms became.  Since then,
the plaintiff has focused on yoga and at-home exercises that the kinesiologist recommended. 
The defendants submit that the plaintiff’s failure to continue her
kinesiologist sessions was unreasonable.  They submit that the plaintiff’s
award for non-pecuniary damages should be reduced by 25%.

[186]     It is
trite law that the defendants bear the onus of proof that the plaintiff failed
to take reasonable steps to mitigate her loss: Hsu v. Williams, 2011
BCSC 1412, at para. 42.  In my view, there is no evidentiary basis for a
finding that the plaintiff has failed to mitigate her damages.  Throughout, she
has been motivated to get better.  To the extent that she did not follow a
particular rehabilitation and conditioning time-table, it was because of either
her pregnancy or her accident-related pain.  As Dr. Paramonoff put it, she is
able to function in her daily life but with pain and will have to adapt
accordingly.  That is precisely what she has done and continues to do.

D.   
Conclusion

[187]     The
plaintiff is entitled to judgment against the defendants in the following
amounts:

[188]     The awards
for loss of future earning capacity, cost of future care and future diminished
housekeeping capacity will have to be grossed up to account for income taxes on
investment income earned from the award.

[189]     The plaintiff
is entitled to recover her costs at Scale B.  If the parties are unable to agree
on costs, they are at liberty to apply.

“Weatherill J.”