IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130708

Docket: M9100

Registry:
Campbell River

Between:

Shannon Patricia
Proctor-McLeod

Plaintiff

And

Tamara Clarke

Defendant

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

I.                
Overview

[1]            
This trial concerned the assessment of damages for injuries suffered by
the plaintiff in an automobile accident that occurred April 27, 2008 in
Campbell River, B.C. The plaintiff’s car was stopped on Highway 19 waiting to
make a left turn when it was struck from behind by the defendant’s vehicle. The
plaintiff’s Subaru Forrester was damaged beyond repair. Her car was pushed
forward about one car length on impact.

[2]            
The defendant said she was moving at 80 km/h prior to the collision
although her impact speed was not given.

[3]            
The accident caused the plaintiff upper body injuries, some of which
continue to affect the plaintiff on a daily basis. She seeks compensation for
non-pecuniary damages, past wage loss, loss of her capacity to earn income,
loss of housekeeping capacity, future care costs and special damages.

[4]            
Liability for the collision was admitted. The parties also tendered an
agreed statement of facts.

II.              
plaintiff

[5]            
The plaintiff is 51 years old and lives with her husband in Campbell
River B.C. She has three children, Connor aged 22, Marley aged 19 and Walker
aged 15. Her son Walker lives in the family home in Campbell River, Marley
attends University in Victoria and Connor lives independently. The family lives
in a one and a half story house with a garden, chicken coop, garden shed and a
garage.

[6]            
The plaintiff obtained a visual arts degree in ceramic sculpture from
Emily Carr University of Art and Design.

[7]            
The plaintiff has work experience as an animal health technologist and
for the past 20 years she has carried on a business installing window
coverings, blinds and drapes. Her business included some furniture refinishing.
Since April 18, 2012, she has been the acting curator for the Campbell River
Art Gallery.

[8]            
Before the accident the plaintiff was in good health and had no physical
problems with her arms, neck, or shoulders. She did not have significant
headaches and did not have anxiety or emotional issues.

[9]            
Before the accident the plaintiff was an energetic woman who engaged in
a wide range of activity connected to her home, business and recreational
interests. She was happy and enjoyed a flexible work schedule. She demonstrated
an aptitude for building and home improvement related projects around her home and
applied those skills to projects for friends. She raised chickens and turkeys
and produced other crops for the family.

[10]        
Approximately 15 years earlier, the plaintiff completed all of the
refinishing work related to the renovation of her home after the drywall work
had been completed. She installed trim and built a new kitchen. She has worked
on the outside siding and the outbuildings, built a fence and has built cabinets.
She has been active in a glass blowing venture which has generated some income
from the sales of her product.

[11]        
The plaintiff’s window covering business was carried out on a subcontract
basis to developers and interior designers. In the process, she would receive a
request for a quotation which is compiled after consideration of the number of
windows and materials involved in the job. The plaintiff would provide
quotations to clients on the basis of the time necessary to complete a project.
On some occasions she also did service work and piece work.

[12]        
The plaintiff observed that over 20 years she had become quicker and
more efficient in her window covering trade and business.

[13]        
The plaintiff performs most of the household chores. She would often can
vegetables and fruit from her garden in addition to produce she receives from
other friends.

[14]        
She enjoyed glass blowing as a hobby and income producing activity. She
and her husband would travel to Denman Island every weekend to learn glass
blowing techniques and produce glass art. In 2010, she and her husband sold a
piece of their glass work for $8,000. They earned $1,200 from glass work in
2011 but did not have any art income in 2012. Although her participation in the
glass work is now limited, she is hopeful that they may generate new sales in
the future.

III.            
injuries and Medical Evidence

A.             
Injuries

[15]        
The accident was a jarring event and led to significant physical
problems for her.

[16]        
The morning following the accident the plaintiff was scheduled for a
wisdom tooth extraction. Notwithstanding the effects of the collision she
proceeded to have her tooth out and developed a very painful dry socket. She
took pain medications before the dental procedure which seemed to ameliorate
the immediate effects of her accident related injury.

[17]        
She visited her family doctor on May 2, 2008, and complained of pain in
her neck, shoulders, both arms and lumbar and thoracic back. She also had injuries
to her trapezius muscles, wrists, and chest. She experienced “bad” headaches and
ongoing pain.

[18]        
Her low back became so painful she stopped working for about one week. She
has some persisting right sided low back pain.

[19]        
The plaintiff’s right shoulder pain cleared up by the summer of 2008 and
her right arm pain resolved by the end of 2008. She claims her left shoulder,
arm and upper back are a continuing source of pain and discomfort. The left arm
pain is connected to the intermittent shoulder pain flare ups and creates the feeling
of being punched in the arm. These shoulder/arm symptoms disturbed her sleep for
two years during which time she was awoken at night with pain and needed to
move around to obtain sufficient relief that enabled her to fall back to sleep.
Her sleep disturbance has improved substantially but problems can recur
intermittently.

[20]        
The plaintiff’s neck and left upper back regions continue to be symptomatic.
The pain develops in her neck and spreads down into her shoulder and arm.

[21]        
The plaintiff’s headaches were intense after the accident but now occur
mostly when there are flare ups in her arm and shoulder symptoms. She has not experienced
a flare up since February 2012. At that time she developed a constant stabbing pain
starting in the neck and moving into her left arm. She described the pain as ten
out of ten for five weeks. Currently, her flare ups are more modest than the
event in February 2012.

[22]        
The plaintiff’s neck pain eventually led to tingling and pain in her
wrist. This has been improved for about a year and a half.

[23]        
The plaintiff’s hip was stiff and sore until the end of summer 2008; at
present these symptoms recur intermittently.

[24]        
Overall, the plaintiff does not recall any day since the accident when
she has not experienced pain from her injuries. The pain usually starts after
she stops working and stops moving about. On a daily basis she estimated her
pain at a level of three out of ten.

[25]        
The plaintiff’s left arm and shoulder remain the most noticeable areas
of complaint.

[26]        
The plaintiff’s daughter Marley was in the car at the time of the accident.
The plaintiff continues to feel emotional about this fact and the possibility
that her daughter might have been hurt.

[27]        
At the time of trial the plaintiff had recovered from the following
injuries:

a)    right
arm;

b)    middle
back;

c)     right
side trapezius muscles; and,

d)    bruising
to chest and abdomen.

[28]        
During the post-accident period the plaintiff received approximately 12 physiotherapy
treatments and three or four acupuncture treatments. She also attended a
massage therapist weekly and performed a series of exercises.

[29]        
In 2010 she started to attend “Curves” for the purpose of improving her
energy and back strength.

[30]        
The plaintiff described episodes of significant post-accident pain in
her left shoulder which were most pronounced when doing her window covering
work. She described having begun one project involving window coverings for
multiple units but stopped after completing two units because of the discomfort
and pain in her shoulder.

[31]        
The plaintiff said that she suffers mild discomfort or daily pain in her
left shoulder and neck. Her other episodes of intense shoulder pain feel like her
arm has been punched and happen up to two times per month. She also described the
February 2012 flare up as lasting four weeks when the pain spiked significantly.

[32]        
The defence argues that the plaintiff suffered soft tissue injury to
various parts of her body and that the effects of those injuries are
substantially resolved. The defence also accepts that the accident triggered
significant pain and discomfort in the plaintiff’s left shoulder arising from
the disruption of her calcific tendinitis.

[33]        
The defence theory is that the plaintiff’s significant injuries, and in
particular any pain related to the calcific tendinitis triggered from the car
accident, was resolved within two years of the accident. The defence argues
that any ongoing pain or discomfort experienced by the plaintiff is not related
in any way to the car accident, and certainly not caused by the car accident.

[34]        
The defence points to the fact that the plaintiff missed only one week
from work and was able to resume window covering tasks albeit with some help.

B.             
Medical evidence

[35]        
The plaintiff relied on the two medical opinions from Dr. Sohmer in letters
dated February 28, 2012 and July 23, 2012. In Dr. Sohmer’s first report he
concluded that the plaintiff had suffered:

The patient suffered soft tissue injuries to her shoulders,
arms, neck, back, and wrists, hips, chest and abdomen. Fortunately, most of
those had resolved but she did suffer from these earlier on. She currently has
ongoing difficulty with her left shoulder and neck.

I believe she has suffered a soft tissue injury to her neck
and shoulders with the possibility of yet undiagnosed shoulder pathology.

It has been four years from the time of injury. While most of
her initial injuries have resolved she still has a resulting deficit. I believe
these will likely persist into the future. They may slowly improve over time
but I suspect she will end up with a deficit and dysfunction in the future.

She may require future therapy
and rehabilitation services in the future. One may also consider shoulder
arthroscopic surgery, both a diagnostic procedure, and with the possibility of
achieving therapeutic improvement depending on the pathology found in treatment
performed.

[36]        
Dr. Sohmer also noted that an MRI arthrogam from February 17, 2011 reported
that she had periarticular calcifications of the rotator cuff. In February 2012
he said that her current residual symptoms related to her left shoulder and
neck involve intermittent flare ups which can last for several weeks.

[37]        
In his report of July 23, 2012, Dr. Sohmer commented on a medical
opinion he had read from Dr. Hawkins, an addendum to Dr. Hawkins’ report and
the results of an MRI arteriogram.

[38]        
Dr. Sohmer agreed with the diagnosis and prognosis given by Dr. Hawkins
with regard to the plaintiff’s soft tissue injuries to her neck and shoulders.
He said, “With regards to her diagnosis of her shoulder symptoms, it is more
difficult for me to have a definitive diagnosis.”

[39]        
Dr. Sohmer said that further investigative procedures might be useful to
assess the plaintiff’s shoulder symptoms. He believed that arthroscopy was the
optimum investigative technique that would be both diagnostic and potentially
therapeutic. He said:

One would look for any tears of the labrum, long head of the
biceps, and tears of the rotator cuff. We could also look for evidence of
impingement and personal information or any other potential pathology, which could
be the cause of the patients’ [sic] symptoms.

I believe without having that information, I could not
reliably postulate an accurate diagnosis.

I have been asked whether the
patients [sic] left/arm would have become symptomatic in any event of this
accident. I do not believe there is any evidence to suggest this. If in fact
symptoms were from the activation of her calcific tendinopathy by the motor
vehicle accident as Dr. Hawkins   suggests, there is no way to say for certain
that her symptoms would have occurred even if she did not have the accident.
Many patients have radiographic evidence of calcification of the rotator cuff
but are completely asymptomatic and can continue to be so throughout their life
time.

[40]        
It seems that Dr. Sohmer is not able to provide a diagnosis of the
plaintiff’s ongoing shoulder difficulties other than stating that he agrees
with Dr. Hawkins’ diagnosis. He has not given his own diagnosis. He has not
given an opinion because he lacks the information to support a reliable
diagnosis. He seems to have left the question to speculation that the plaintiff’s
shoulder and arm symptoms originated from impingement, a bursal inflammation or
some other pathology.

[41]        
Dr. Sohmer does not opine that those other causes would be related to
the trauma experienced in the car accident; he simply adds that there is no way
to say for certain if her calcific tendonitis would have become symptomatic but
for the accident. Although that may be the case, his opinion stops short of connecting
the plaintiff’s ongoing shoulder problems to the accident.

[42]        
The defendant’s expert, Dr. Hawkins, provided two opinions. His first
letter dated June 20, 2012, reflects an examination he did on January 5, 2011.

[43]        
Dr. Hawkins’ diagnosis was:

1.         I think she suffered a whiplash/extension – type
injury to her neck which caused soft tissue pain through the neck and shoulder
blades, which is now almost but not quite completely resolved.

2.         In her left shoulder,
she has or did have extensive calcification in the rotator cuff, in other
words, calcific tendinitis, as well as ultrasound evidence of partial thickness
tearing of the rotator cuff tendon. Additionally, there may be early oh
osteoarthritis in her left shoulder noted on x-ray and mentioned by her
orthopedic surgeon, Dr. Stephen Sohmer.

[44]        
Dr. Hawkins also considered that her whiplash symptoms were almost but
not quite completely resolved.

[45]        
Dr. Hawkins concluded that the tendinitis did not develop because of the
accident but that the plaintiff’s pain stemmed from the disturbance of the
previously silent calcific tendinopathy. He said that the trauma could
temporarily have activated her pain by jolting or jarring the shoulder tendons.

[46]        
His prognosis included:

1.         Regarding the soft tissue injury in her neck and
shoulder blades, which I believe was caused by the accident she luckily has had
almost – complete resolution. I think she will continue to do well. I do not
see any likelihood of any regression of symptoms or relapse in the future, nor
any long-term problems.

2.         Regarding the
calcific tendinopathy, partial thickness personal sided rotator cuff tear and
possible Arthur osteoarthritis in the left shoulder, I think that the accident
has caused a temporary activation of symptoms and I do not think that any
further problems in the long term will be attributable to the accident, simply because
she has made such a good recovery up to this point. If she develops progressive
osteoarthritis, as she may well do, I would not attribute it to this jolting
accident. If she develops more progressive rotator cuff tearing, I also would
not attribute that to the motor vehicle accident. Additionally, any further
bouts of pain in the shoulder related to the calcific tendinitis, I would not
relate to the accident either.

[47]        
In Dr. Hawkins’ June 27, 2012 report, he commented on the results of the
MRI arthrogram performed on February 17, 2011. He observed that the extensive
calcium previously noted on the plaintiff’s rotator cuff had disappeared. He
qualified this finding: “although the radiologist pointed out that the MRI is
less sensitive for the detection of dystrophic calcification.”

[48]        
Dr. Hawkins continued:

I have often noted that even after the resolution or
resorption of calcium in individuals with calcific tendinitis, that the damage
left by the calcium after it is gone and the swelling and inflammation that it
has caused result in the tendon still being thick and still being associated
with friction in the coraco-acromial arch, so we often find we still have to go
ahead and deal with that, even if the calcium has disappeared because shoulder
pain persists.

I think therefore that, as I
have said before, the calcium was very likely silent in this lady’s shoulder
before the subject accident, but the discomfort was triggered by the motor
vehicle accident and the shoulder was strained and the lumps of calcium in the
tendon were put under tension activating shoulder pain.

[49]        
Dr. Hawkins had made an error in assumptions prior to preparing the
second report. He thought that Dr. Sohmer’s letter of February 28, 2012, was
prepared four months before he had seen the plaintiff and he concluded that she
had had significant improvement since Dr. Sohmer had spoken with her. In his
examination, he said that he was in error on this point and that the comments
he made in relation to Dr. Sohmer’s findings were incorrect and should be
ignored. However, Dr. Hawkins said that the plaintiff’s difficulties in
the future would relate mainly to the mechanical aspects of her left shoulder
and that the soft tissue aspects which have troubled her have improved
significantly. He said that the mechanical difficulties are related to
symptoms revealed with movement or mechanical activity of her shoulder.

[50]        
The defence relies on Dr. Hawkins insofar as his first opinion rejects
the possibility that the plaintiff’s ongoing shoulder problems are related to
the car accident.

[51]        
The defence focused on Dr. Hawkins records of his conversation with the
plaintiff during his examination on February 2, 2011:

·      
She reported that her neck was good; it was better but not perfect.

·      
Her left arm was bothering her on drapery days, that is, when at
work she would have to have her arms outstretched overhead for four hours.

·      
Using the arms in any fashion would aggravate her neck pain and
cause discomfort radiating into the left shoulder.

·      
She was experiencing bad days one to two times per month.

·      
At the time of his interview the plaintiff said she was back to
her regular work ability, but there was not as much business anymore.

·      
She likes doing carpentry principally building cabinets but has reduced
this activity after the accident; she is back doing it less.

·      
She said she was in charge of all of the home maintenance and is
able to do everything but, on bad days, it gets difficult and she gets her
children to help. Her husband helps with cooking.

[52]        
Dr. Hawkins said that from the story contained in his notes he assumed
that she was quite happy with her resolution of pain, although he recognized
she was not fully recovered from her whiplash injuries. In fact, I have
concluded that the plaintiff has a higher level of residual discomfort from the
whiplash injuries than Dr. Hawkins believed was extant at the time of his examination.

[53]        
Based on the medical evidence from Dr. Hawkins and Dr. Sohmer, I have
concluded that the plaintiff’s most debilitating injuries were resolved by
December 2008.

[54]        
The plaintiff took only one week off of work due to her symptoms.
Thereafter she remained engaged in her window covering business on a more or
less regular basis into the latter part of 2008. I accept that the plaintiff
continued to experience limitations with chronic intermittent events of
elevated pain in her left shoulder and neck that interfered with
her ability to freely and functionally complete all of the physical aspects of
window hanging for at least two years. She has some unresolved whiplash injury
symptoms and intermittent shoulder problems and continues to have some pain
that affects her work performance.

[55]        
Dr. Hawkins was very candid and fair in his assessment of the
plaintiff’s condition. He testified that the plaintiff would have experienced
pain in her left shoulder related to the calcific tendinitis for up to two
years after the accident. He suggested that beyond two years the plaintiff
ought not to have had pain or discomfort from calcific tendinitis unless there
was a reoccurrence of the calcium deposits on her tendons. The MRI arthrogram
done February 17, 2011, almost three years after the accident, revealed no
underlying pathology in the plaintiff’s shoulder. The issue is whether the
plaintiff genuinely has ongoing shoulder pain and if so, does the pain
originate in the injuries suffered in the accident.

[56]        
I accept the opinion that the onset of the plaintiff’s calcific tendonitis
was not caused by the accident but that symptoms were activated by the strain
resulting from the collision. I also accept the calcific tendonitis has
resolved and that Dr. Hawkins’ earlier concerns that she had silent
osteoarthritis and a prior previous bursal tear were dispelled by the MRI
results.

[57]        
The more difficult question is whether the plaintiff’s recurring shoulder
symptoms would have occurred if the accident had not happened. Dr. Hawkins
suggests that these symptoms would have appeared in the absence of the trauma
caused by the accident. Dr. Sohmer seems to think that there may be underlying
pathology in her shoulder that would explain her ongoing symptoms. He could not
give an opinion that this underlying pathology might be caused by the accident.

[58]        
Dr. Sohmer does not provide helpful opinion evidence to assess the plaintiff’s
ongoing circumstances. Dr. Sohmer’s analysis sidesteps the fact that he is
unable to give a diagnosis of the cause of the plaintiff’s symptoms.

[59]        
It is significant to note that the calcific tendinitis was a condition
in the plaintiff’s shoulder before the accident occurred. Dr. Hawkins concluded
that the plaintiff was substantially recovered at the time of his interview
with her on February 2, 2011.

[60]        
I accept the plaintiff’s evidence that she has continued to experience
episodic shoulder pain of varying degrees and at times finds the shoulder pain
limits her physical activity.

[61]        
I accept Dr. Hawkins’ opinion that the calcium deposits in the plaintiff’s
shoulder were dissipated by the time of the more recent MRI. Dr. Hawkins’ opinion
is that after the calcium deposits on the tendon have dissipated, patients
often have residual shoulder pain that needs attention; he suggests that the
plaintiff might benefit from another injection of her subacromial bursa.

[62]        
I conclude from his opinion on this point that there is some dysfunction
in the plaintiff’s shoulder that has its origins in the pre-existing calcific
tendonitis activated by the accident that might be resolved by further
injections. He opines that because she has achieved “such a good recovery up to
this point” he does not think that any further long term problems will be
attributable to the accident.

[63]        
The MRI study of the plaintiff was helpful in demonstrating that the
calcium is gone and there is no tear in the rotator cuff or arthritis.

[64]        
Contrary to Dr. Hawkins’ opinion, the plaintiff’s recovery does not seem
to have been as successful as he observed in his June 2012 report. She had told
Dr. Hawkins that her symptoms had improved but that she was not completely
recovered. I accept that her symptoms are more pronounced than assumed by Dr.
Hawkins.

[65]        
Dr. Hawkins said that calcific tendonitis usually becomes painful spontaneously
and without a cause but, in this case, the onset of symptoms were caused by the
accident. It is difficult to reconcile his opinion that, if the accident had
not occurred, her current symptoms would have developed in any event. She was asymptomatic
before the accident and Dr. Hawkins’ analysis did not explain the rational for
his conclusion that, at some point in time, the symptoms would have developed
in spite of the accident.

[66]        
In Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 16-17, the
test for causation was explained:

16        In Snell v. Farrell, supra, this
Court recently confirmed that the plaintiff must prove that the defendant’s
tortious conduct caused or contributed to the plaintiff’s injury. The causation
test is not to be applied too rigidly. Causation need not be determined by
scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward,
[1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it
is “essentially a practical question of fact which can best be answered by
ordinary common sense”. Although the burden of proof remains with the
plaintiff, in some circumstances an inference of causation may be drawn from
the evidence without positive scientific proof.

17        It is not now
necessary, nor has it ever been, for the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury. There will
frequently be a myriad of other background events which were necessary
preconditions to the injury occurring. To borrow an example from Professor
Fleming (The Law of Torts (8th ed. 1992) at p. 193), a “fire ignited in
a wastepaper basket is . . . caused not only by the dropping of a lighted
match, but also by the presence of combustible material and oxygen, a failure
of the cleaner to empty the basket and so forth”. As long as a defendant is part
of the cause of an injury, the defendant is liable, even though his act alone
was not enough to create the injury. There is no basis for a reduction of
liability because of the existence of other preconditions: defendants remain
liable for all injuries caused or contributed to by their negligence.

[67]        
The onset of the plaintiff’s shoulder symptoms was brought on by the
defendant’s negligence. The medical opinions suggest that these symptoms may
have never appeared if the plaintiff was not injured in the accident. Dr.
Hawkins did not explain to my satisfaction why he believed that the shoulder
pain would have become symptomatic if the plaintiff had not been injured. In my
view, the accident was part of the cause of the plaintiff’s ongoing complaints.
Common sense dictates that there is a causal connection due to the uninterrupted
continuation of these symptoms, albeit on an intermittent basis.

[68]        
I accept Dr. Hawkins’ opinion that further treatments might result in a
resolution of her shoulder symptoms and that her soft tissues have improved significantly.
The plaintiff has been suffering from the after effects of the calcium deposits
and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued
pain from flare ups would not have happened but for the accident. Although she
made a good recovery from her other injuries, there is persisting pain developing
intermittently in her neck and radiating to her left arm. This causes her pain
levels to rise from a daily level of three out ten to six or seven out of ten.
These estimates are of limited use; however they do give a subjective measure
of the plaintiff’s perception of her condition during flare ups of symptoms.

[69]        
I conclude that the plaintiff’s symptoms will likely resolve over time.

C.             
Post-accident activities

[70]        
The plaintiff said that her personal life has suffered due to the persistence
of pain. She and her husband separated for a time in 2009; this was at a time
when pain interfered with her intimate relationship with him.

[71]        
Under cross-examination she acknowledged that before the accident she
engaged in yoga and she has since returned to her pre-accident yoga schedule.

[72]        
She also confirmed that her personal relationships with friends and
family had not been impacted by the accident.

[73]        
She has not returned to a regular schedule in the glass blowing studio.
Prior to the accident she would assist her husband in the heavier aspects of
glass blowing because it requires too much left arm strength to keep the pipe
turning. Now, she is unable to undertake the heavier parts of her role in the
glass blowing process and she attends once or twice each month.

[74]        
The plaintiff has not been able to resume the heavier housekeeping
chores and, for a time, relied upon her children to do that type of work. She
has hired a housekeeper who cleans their tile floor, the bathrooms and has
helped her in the garden.

[75]        
The plaintiff has stopped raising meat birds and gardening at the same
level she performed before the accident. She said she has less physical ability
to keep and maintain her home and help out others as had been her practice. She
was not able to work with friends raising turkeys.

[76]        
The plaintiff was unable to perform all of the chores associated with
her window covering business. She became less efficient at the business after
the accident. Now she says large jobs are too much for her because she is limited
in her capacity to carry large ladders or reach certain places on work sites. She
has advised her clients that she has discontinued her business although still performs
some services for clients. She does not think she can return to the window
covering business because of the decrease in her overall strength after this
one year interlude at a desk job in the gallery.

[77]        
She testified that if the accident had not happened she would have
continued in her business as a window covering installer and would not have
accepted the position as the curator of the art gallery. She said she was able
to earn more money in window covering.

[78]        
She said the accident resulted in the loss of some window covering
assignments. The work is more painful and she takes more time to complete the
assignments.

[79]        
At the art gallery she earns $393.75 weekly working three days per week.
She has accepted a new position as program manager at the art gallery which
will occupy four days per week and will pay $525 weekly.

[80]        
The gallery closes for two weeks at Christmas and she is off work
without pay. She is not entitled to holidays but is able to bank her overtime
hours to allow her to take time off. She is uncertain if the contract will be
renewed as is it dependent on funding.

IV.           
Non-Pecuniary damages

[81]        
Non-pecuniary damages are intended to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The compensation
awarded should be fair to all parties and depends on the particular
circumstances of each person and the impact the accident related injuries has
on that plaintiff. Prior court decisions can be helpful in assessing the
plaintiff’s entitlement to compensation under this head of damages.

[82]        
In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined
the factors to be considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in [Boyd v.
Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes: 

(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; 

I would add the following factors, although they may arguably
be subsumed in the above list: 

(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:  Giang v. Clayton,
[2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[83]        
The assessment of non-pecuniary damages is necessarily a function of the
plaintiff’s personal experiences in dealing with her injuries and the unique
impact of those consequences: Dilello v. Montgomery, 2005 BCCA 56 at
para. 25.

[84]        
The plaintiff argues that this accident happened when she was relatively
young and on the verge of seeing her children finish secondary school and
launch into independent living. She was at a point where she would have been
free to increase her time commitment to the business and believed her economic
situation was going to improve. She argues that because her daily experience of
pain is chronic and the symptoms rise to very significant levels on an
intermittent basis, her post accident future is bleaker.

[85]        
She argues that her lifestyle and activities have been greatly impacted
and she does not expect to return to her previous high-level performance in
business and at home. The plaintiff argues that non-pecuniary damages ought to
be assessed between $75,000 and $100,000. She relies on:

·      
Kaleta v. MacDougall, 2011 BCSC 1259, where non-pecuniary
damages of $80,000 was awarded;

·      
Deglow v Uffelman, 2001 BCCA 652, where the plaintiff was
awarded $75,000 (after inflation $90,340); and,

·      
Giang v. Clayton, Liang and Zheng, 2005 BCCA 54, for the
proposition that a plaintiff who continues to work stoically should not be
penalized for exhibiting determination and persistence.

·      
Raun v. Suran, 2010 BCSC 793, wherein the plaintiff was
awarded $75,000 for non-pecuniary damages for injuries affecting the right
shoulder, left knee, middle and upper back. In that case the prognosis for the
shoulder was good but guarded for the neck and low back.

[86]        
The defendant argues a different reading of the evidence. She argues
that the plaintiff’s injuries are mild to moderate and were substantially
resolved within two years.

[87]        
The defendant argues that Dr. Sohmer’s opinion from February 28, 2012 supports
the view that the plaintiff’s ongoing complaints were of a modest nature. Dr. Sohmer
was not cross-examined on his other opinions which included:

The patient suffered soft tissue
injuries to her shoulders, arms, neck, back, and wrists, hips, chest, and
abdomen. Fortunately, most of those have resolved but she did suffer from those
earlier on. She currently has ongoing difficulty with her left shoulder.

While most of her in initial
injuries have resolved she still has a resulting deficit. I believe these will
likely persist into the future. They may slowly improve over time, but I
suspect she will end up with a deficit and this function in the future.

[88]        
The defendant says that the plaintiff had largely recovered from her
injuries by the end of 2008 and that accident had a less limiting impact on her
ability to function. She continued with the window coverings business for
several years and her overall ability to do most things was moderately affected
by the accident.

[89]        
Although the plaintiff testified that the accident affected her
relationship with her husband, she confirmed her discovery evidence that the
accident had not impacted her relationships.

[90]        
The defendant relies on:

·      
Vela v. McKenzie, 2012 BCSC 438, as a comparable case in
which the plaintiff was assessed non-pecuniary damages of $27,000;

·      
Moore v Cabral et al., 2006 BCSC 920, in which a plaintiff
was awarded $20,000 non-pecuniary damages;

·      
Fata v. Heinonen, 2010 BCSC 385, in which the plaintiff
was awarded $45,000 ; and,

·      
Burton v. Insurance Corporation of British Columbia, 2011
BCSC 653, in which the plaintiff was awarded damages of $35,000.

[91]        
In my view, he plaintiff’s injuries do not reach the level described in Raun
or Kaleta. In Raun the plaintiff’s injuries were widespread and
he was faced with a guarded prognosis in relation to his low back and neck
injuries. Mr. Raun was younger and more likely to have longer term issues from
the accident than will be faced by Ms. Proctor-McLeod.

[92]        
In Kaleta the plaintiff was considered at her maximum medical
improvement and would be left with long term shoulder pain as a consequence of
her accident.  Although bearing some similarity to the plaintiff, I have
concluded that Ms.. Proctor-McLeod’s has not proven on the balance of
probabilities that her injuries from the accident will not be as
permanent or long lasting.

[93]        
Fata, cited by the defence, bears many similarities to the
plaintiff’s circumstances. However, given the plaintiff’s age, the duration and
extent of symptoms and the impact on her level of activity caused by these
injuries, I conclude that Ms. Proctor-McLeod’s award engages different
considerations. I have assessed the plaintiff’s loss at $60,000 for non-pecuniary
damages.

V.             
loss of earnings

[94]        
In 2005 – 2007 the plaintiff earned gross incomes of $27,547, $26,984
and $26,992, respectively. For the years 2008 – 2011, she earned gross incomes
of $17,608, $26,598 and $25,349, respectively. Her income from the sale of
glass in 2010 was $8,000 and $1,200 in 2011. The plaintiff did not have any
income from the sale of glass art in 2012.

[95]        
She did not recall telling her doctors that she was able to do some work
in December 2008 and May 2009. She relied on her child for help in the business
until 2009 when Conner left home and she began doing the work herself.

[96]        
There was an overall decline in the prospects for her window covering business
in Campbell River during 2009 – 2011 as development activity slowed.

[97]        
Since April 2012 she has been the acting curator of the Campbell River
Art Gallery. She earns $17.50 per hour over 7.5 hours per day and three days
per week. Commencing November 1, 2012, the plaintiff has been confirmed as the
gallery’s program manager. Her hourly wage will be unchanged but her work week
will be extended to 30 hours per week producing an annual income of $27,300.

[98]        
The plaintiff argues that she lost several income earning opportunities
because of the accident. The parties agreed that she lost an opportunity for
work with Bob’s Flooring which would have produced income of $980.

[99]        
She argues that she lost a house job for Ms. Robinson and estimated the
lost income as between $200 – $300.

[100]     The plaintiff
testified that she was unable to finish a contract with Trail’s Edge. That
project would have earned the plaintiff between $85 and $95 per unit with 50
units to be completed.

[101]     Ms. Kaneer
from Trail’s Edge owns Lloyd’s Interiors. She contracted out installation of
drapes and blinds. Trail’s Edge was a two phase project; one phase was done in
2009 and the second phase in 2010. This was a blind installation project involving
60 units and the plaintiff would have been able to earn $70 per  unit.

[102]     Ms. Kaneer
testified that the plaintiff declined the job because the fee was insufficient.
The plaintiff did not tell Ms. Kaneer that she was unable to do the work due to
her injury. If the plaintiff had required assistance to perform the work,
Ms. Kaneer would have been able to step in and give assistance.

[103]     Ms. Kaneer
said she did have a difficulty with the plaintiff over rates; the plaintiff
wanted to charge more money for doing ladder work and Ms. Kaneer did not think
this was proper. She recalled that the plaintiff had declined work on a couple
of occasions due to the flu but did not recall any times the plaintiff was
unable to work due to injury.

[104]     At her
December 2010 examination for discovery the plaintiff said that she had lost
only two jobs due her injuries and other customers were being asked to wait
until she felt better. Ms. Kaneer said that her business was now closed and
that she moved the balance of her activity into her home due to the bad
economy. She said 2011 was the worst year ever in her business.

[105]     Ms. Kaneer
said that the plaintiff was the best installer she had ever had and she would
hire her now and in the future. Ms. Kaneer acknowledged that the plaintiff had
worked at discounted rates before the accident; she said that the plaintiff had
never started a job which was not finished.

[106]     Ms. Robinson
testified that the plaintiff had worked for Bob’s Flooring doing blind
installation. At Bob’s Flooring, the plaintiff would quote a rate and the
company would add a charge to her rate. For example, if the plaintiff charged
Bob’s Flooring $7 then he would upcharge the customer to $10 per installation.

[107]     She noted
that the plaintiff was quick at her work before the accident and much slower
after. Ms. Robinson recalled one project where the plaintiff brought her son
Connor to help. The plaintiff had missed one job for Bob’s Flooring and
intended to take on a 120 blind installation job at Interfor.

[108]     Ms.
Robinson recalled another project with a vertical blind installation which the
plaintiff did not do due to problems with her arms. Ms. Robinson reported that
in 2012 work was not plentiful in her new position at C.R. Floors.

[109]     The
plaintiff testified that she became less efficient in her work after the
accident and her reported gross income was $9,384 less than the year before the
accident.

[110]     The
plaintiff submits that her pre-trial wage loss is $10,000.

[111]     The
defendant argues that the plaintiff was off work for one week and that the
evidence supports the loss of income from two jobs totalling $1,180. She said
that the Trail’s Edge job was refused because of the rate the customer was
willing to pay and not her physical symptoms. The defendant argues that the
plaintiff did not turn down jobs from Lloyd’s Interiors except when she had the
flu.

[112]     The
evidence relating to the plaintiff’s business, including the work available
through her existing clients and the changes in the market, is somewhat
uncertain. However, I am satisfied that the plaintiff’s earning pattern before
and after the accident demonstrates that she has lost $10,000 in income from
her business. The statement of income and expenses for her business reveals
that the costs incurred to generate the income is approximately 40% of the
total earned. Not all of the expenses recorded in the statement are variable expenses
and after considering the income statements for 2010 and 2011, I assess the plaintiff’s
loss of net business income at $7,000.

[113]     The defendant
accepts that the plaintiff’s children are to be compensated $945 for 2008 but
that nothing is payable after 2009. The plaintiff will recover this sum.

VI.           
LOSS OF future earning CAPACITY

[114]     The
plaintiff alleges that she wound up her window covering installation business
because of her limited physical ability to carry out her work due to the
injuries. She was able to do this work three days per week with a plan to
expand her efforts once the children had left home. She argues that her window
covering installation work could generate $63 per hour based on 10 installations
in 1.5 hours plus $25 for a call fee.

[115]     Her current
position is a one year contract during which she is paid $17.50 per hour; there
is no guarantee that her employment will continue.

[116]     The
plaintiff has recently done picture framing work for $14 per hour.

[117]     The
plaintiff and her husband earned $8,000 in 2010 from glass blowing art. They
earned $1,200 in 2011. There are costs associated with this work but their
sales experience indicates some net income can be derived from glass blowing.

[118]    
The plaintiff says she is not able to do physical work any longer. She relies
on Dr. Sohmer’s report: “The patient’s ability to earn income in the past has
been affected by the motor vehicle accident.”

[119]    
The plaintiff has advised her clients that she will no longer do window
covering work and she expects they will find other service providers. She
argues that she would have continued in the business because she enjoyed the
work and it was more remunerative than her current position at the gallery.

[120]     The
defendant argues that the plaintiff has not made out a case for an award for loss
of future earning capacity.

[121]     The
defendant argues that the plaintiff continued her full-time employment for four
years following the accident with some accommodations. The defendant notes that
the economic downturn has influenced incomes in the window coverings business,
arguing that the plaintiff’s reduction in income is more likely related to
economics than personal injury.

[122]     The
defendant argues that the plaintiff’s income in her current position is $20,562
and will rise to $26,250 in her new position. She does an excellent job although
working longer hours than in her pre-accident role.

[123]     The
defendant says that there is no opinion evidence of the plaintiff’s actual
capacity to work nor any evidence that she will not be able to earn the same
income in any future prospects that may come to her. The defendant argues that
if there were to be an award for impaired earning capacity it should be limited
to $18,000 which represents one year’s lost income based on the plaintiff’s
three year historical average.

[124]     The first
question is whether the plaintiff’s earning capacity had been impaired to any
degree by the injuries caused by the accident. In Athey at para. 27 the Court
affirmed the proposition that a future or hypothetical possibility will be
taken into consideration as long as it is a real and substantial possibility
and not mere speculation.

[125]     In this
regard, the plaintiff has demonstrated that her career path has changed as a
result of decisions she made arising from the injuries suffered in the
accident. I am satisfied that the plaintiff’s ability to perform window
covering work was compromised after the accident but she has not discharged the
burden of proving that her ability to perform this, or other kinds of equally
remunerative work, will be impacted permanently.

[126]      In her
new role, she will likely earn income similar to the level she earned in her
business. I accept that the plaintiff is less physically able to do the work
required in her window coverings business but the limitations caused by the
accident related injuries will continue for a limited time.

[127]     The
plaintiff’s current position does not have security of tenure and if her
employment were to end within the next few years, she will likely suffer some income
loss due to her inability to return to her previous business. The conditions of
employment in the plaintiff’s new role are less remunerative on an hourly basis
than she earned in the window covering business. In this regard, the plaintiff is
less marketable and less capable overall for alternate employment prospects and
will for some time in the future meet the criteria laid out in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.)

[128]     I have
concluded that there is a real and substantial possibility of a diminution in
her income in the future due to the accident related residual effects. This
possibility is not permanent but will likely affect the plaintiff for some time
to come. In my view she has met the test described at by Garson J.A. in Perren
v. Lalari, 2010 BCCA 140 at para. 32

[129]     The
plaintiff argues that Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44
(C.A.), and Kwei v Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.) and Roamnchych
v. Vallianatos, 2010 BCCA 20 support an award to the plaintiff in the range
of $50,000.

[130]     There are
numerous contingencies underlying the plaintiff’s claim under this head of
damage. She may not experience a loss of income in the future or the amount may
be less than she has contemplated based on her expectation that the window
covering business would have become more profitable in the future. She may
fully recover sooner than hoped for, or may continue to experience employment
limiting symptoms longer than is expected. Balancing these contingencies I fix
the amount the plaintiff’s damages under this head at $25,000.

VII.          
Special damages

[131]     An injured
person is entitled to recover the reasonable out-of-pocket expenses incurred as
a result of an accident. This is based on the fundamental principle that an
injured person is to be restored to the position he or she would have been in
had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281.

[132]     The
plaintiff claims special damages of $4,316.30 for various therapies, a vehicle
rental, a new bed, and two months free rent for her son who lived at home to
help with the garden and the house.

[133]     The
defendant argues that the expense claim for the new bed and free rent for
Connor is not appropriate. The plaintiff obtained the bed to enable her to lie
flat and obtained a better sleep because of a continuing difficulty in sleeping
for the first two years.

[134]     No medical
evidence was tendered to support the wisdom or necessity of obtaining the bed. She
obtained a king size bed because it helped her stretch out to relieve the pain.
There was no medical opinion suggesting that the bed was a necessity or would
assist her in obtaining a better sleep. Her sleep interruption lasted only two
years and in my view the plaintiff did not prove on the balance of probabilities
that the cost of this bed was recommended or medically necessary.

[135]     The
defendant accepts the plaintiff’s claim for special damages in the sum of
$1,858.26 and $500 for free rent accorded to Conner in exchange for help he
provided the plaintiff. I accept that it was reasonable for the plaintiff to
engage Conner to assist her for two months and the amount of his help is fairly
valued at $1,000. Accordingly, I award the plaintiff $2,858.26 for special
damages.

VIII.        
Future care costs

[136]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C) McLachlin
J. (as she then was) said at 84:

The test for determining the appropriate award under the
heading of cost of future care, it may be inferred, is an objective one based
on medical evidence.

These authorities establish (1)
that there must be a medical justification for claims for cost of future care;
and (2) that the claims must be reasonable.

[137]     The
plaintiff testified that she continues to make use of medications and other
aides to cope with her condition. She is using Tylenol, ice packs and heat pads.
She would “like to attend massage therapy” and continue with yoga. She attends
Curves which she finds alleviates the pain of her accident related injuries.

[138]     The
plaintiff says the cost of medications and aides is $100 per year; the cost of
physiotherapy would be $720 per year; the cost of yoga would be $80 per eight
week sessions ($480 per year); and Curves would be $600 per year. She argues
that $1,900 per year for 10 years produces a discounted total of $16,000.

[139]     The
defendant says the plaintiff has not proven an entitlement to future care
costs. The defendant argues that the medical recommendations are vague and that
there is no opinion evidence to medically support the plaintiff’s claims. She
proposes that a nominal amount of $500 be allowed for over-the-counter
medications.

[140]     Dr.
Hawkins recommended that the plaintiff receive further injections into her
shoulder to treat her tendonitis. He felt that this procedure would either
produce positive benefits or, at least, confirm a diagnosis and allow for
surgical intervention. A surgeon could then remove her thickened bursal tissue
under arthroscopic surgery and, in his opinion the plaintiff might see positive
results after six months.

[141]     The
plaintiff is not yet fully recovered from these injuries. It is difficult to
assess her requirements for ongoing medical and therapeutic aides to deal with
her ongoing symptoms. The duration is uncertain and I cannot accept the plaintiff’s
submissions as to time and amount. Nonetheless, the plaintiff does require some
ongoing assistance which I will allow at $5,000.

IX.           
loss of housekeeping capacity

[142]     The
plaintiff claims compensation for the diminution in her ability to maintain her
house and gardens. She has hired a housekeeper who works two hours per week at
$20 per hour. The plaintiff points to Dr. Sohmer’s opinion that she will need
assistance in the future to attend to the maintenance of her home.

[143]     She argues
that there is a past and future component to this claim, relying on Kroeker v.
Jansen, 4 B.C.L.R. (3d) 178 (C.A.) and McTavish v MacGillivray,
2000 BCCA 164.

[144]     The
defendant argues that the plaintiff has not made out a claim for this head of
damages. The defence argues that the plaintiff’s evidentiary shortfalls
include:

a.       a
failure to show that services hired or her family replaced services to a
significant extent;

b.       the
contribution by her family is not above the ordinary expectations of support of
spouse and children;

c.       the
family contributed in the past and following the accident;

d.       chores
that take longer or cause discomfort are properly compensable under
non-pecuniary damages; and,

e.       the
housekeeper was not hired until three and one-half years after the accident.

[145]     It is
difficult to rely on Dr. Sohmer’s opinion in support of this claim in view that
he agrees with Dr. Hawkins’ diagnosis and prognosis. He could not postulate an
accurate diagnosis himself. Finally, he said there was no way to say for sure
that her symptoms would have occurred even if she did not have the accident.

[146]     I accept
that the plaintiff is principally responsible for maintenance of the home,
inside and out, and that she reasonably relied on others to perform those
chores beyond her capacity at the time. I accept that the plaintiff eventually
hired a housekeeper to perform chores beyond the plaintiff’s.

[147]     The
evidence does not support an award under this claim to cover home service help
for a period between 10 and 30 years. She is currently paying $20 per hour for
two hours help per week which is reasonable in the current circumstances. She
is constrained by the demands of her new position as well as her capacity to do
all of this work.

[148]     I accept
that the plaintiff will continue to incur costs to obtain these services for a
limited time. Bearing in mind the influence of the various contingencies and
uncertainty regarding her future, I assess her entitlement to future
housekeeping costs at $7,800.

X.             
SUMMARY

[149]     The
plaintiff is awarded the following:

Non-Pecuniary Damages                                         $60,000.00

Loss of Earnings ($7,000 + $945)                              $7,945.00

Future Loss of Capacity to Earn Income                   $25,000.00

Special Damages                                                      $2,858.26

Future Care Costs                                                     $5,000.00

Loss of Housekeeping Capacity                                 $7,800.00

TOTAL                                                                 $108,603.26

[150]    
Unless the parties wish to make submissions as to costs, the plaintiff
will recover her costs.

“Armstrong J.”