IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20130802

Docket: M091933

Registry: Vancouver

Between:

Yuho Sekihara

Plaintiff

And:

Kirandeep Kaur Gill and Surjit Kaur
Gill

Defendants

Before: The Honourable Madam Justice Watchuk

Reasons for Judgment

Table
of Contents

INTRODUCTION…………………………………………………………………………………… 3

LIABILITY……………………………………………………………………………………………. 3

1.  Factual
Background………………………………………………………………………. 3

2.  Discussion…………………………………………………………………………………… 6

DAMAGES…………………………………………………………………………………………. 10

1.  The
Plaintiff’s History and Circumstances…………………………………………. 10

(a)  Pre-Motor
Vehicle Accident History……………………………………………. 10

(b)  The
Motor Vehicle Accident……………………………………………………… 15

(c)  Post
Motor Vehicle Accident Events, Treatment and Recovery………… 16

2.  The
Medical Evidence………………………………………………………………….. 21

(a)  Dr. Ian
Tamplin…………………………………………………………………….. 21

(b)  Dr. C.
Hershler……………………………………………………………………… 24

(c)  Dr. K.
Riar……………………………………………………………………………. 30

(d)  Dr. M.
Grypma……………………………………………………………………… 31

3.  Discussion…………………………………………………………………………………. 32

(a)  Diagnosis
and Prognosis…………………………………………………………. 32

(b)  Damages…………………………………………………………………………….. 37

(i)  Non-pecuniary
Damages……………………………………………………… 37

(ii)  Past
Wage Loss/Past Loss of Opportunity……………………………….. 42

(iii)  Loss
of Future Earning Capacity……………………………………………. 43

(iv)  Loss
of Insurability……………………………………………………………… 47

(v)  In
Trust……………………………………………………………………………. 48

(vi)  Past
and Future Loss of Housekeeping…………………………………… 48

(vii)  Cost
of Future Care……………………………………………………………. 50

(viii)  Special
Damages……………………………………………………………….. 51

SUMMARY…………………………………………………………………………………………. 52

INTRODUCTION

[1]            
The plaintiff, Yuho Sekihara, claims for damages arising out of a motor
vehicle accident which occurred on August 27, 2007.  Liability for the
accident is in issue.

[2]            
The accident occurred when the defendant, Kirandeep Kaur Gill, was
driving a vehicle owned by her mother, the defendant Surjit Kaur Gill,
northbound on McCallum Road in Abbotsford, B.C.  Ms. Kirandeep Gill
entered the intersection of McCallum Road and McDougall Avenue without stopping
and initiated a left hand turn.  Ms. Gill hit the front passenger corner
of the southbound vehicle driven by Ms. Sekihara.

[3]            
Ms. Sekihara, who had been a high ranked professional snowboarder, continues
to be an avid snowboarder.  She is an entrepreneur with many interests.

[4]            
As a result of the accident Ms. Sekihara sustained injuries to her
neck and back along with headaches, difficulties sleeping and depression.  She continues
to suffer from chronic back pain and depression.

[5]            
Ms. Sekihara claims damages for her non-pecuniary loss, a loss of
past and future opportunity to earn income, past and future loss of
housekeeping, loss of insurability, cost of future care, an in trust claim, and
special damages.

LIABILITY

1.              
Factual Background

[6]            
The accident occurred on August 27, 2007 at approximately
2:00 p.m. on a clear afternoon.

[7]            
There was steady traffic in both directions on McCallum Road which has
two lanes southbound and two lanes northbound at the location of the accident. 
McDougall Avenue which intersects has two lanes.

[8]            
Ms. Sekihara testified that she was in Abbotsford that day to
purchase a storage trailer for resale.  She had been lost but after stopping
and getting directions, she continued southbound on McCallum Road and was
travelling slightly faster than the speed limit of 50 kmh.  As she
approached the intersection with McDougall Avenue, the traffic light facing her
was green.  It was her intention to travel straight through the intersection.

[9]            
Ms. Sekihara was travelling in the curb lane.  She testified that
there were some cars in the lane adjacent to her stopped in order to turn
left.  The car at the front of that line was in the middle of the intersection. 
This was a car driven by Carl Welt, an independent witness to the accident.

[10]        
As Ms. Sekihara entered the intersection, she saw a northbound
vehicle initiating a left hand turn in front of her.  She slammed on her brakes
as hard as she could, bracing hard as she was braking.

[11]        
Ms. Sekihara testified that the light facing her turned yellow just
as she was entering the intersection.  She denied that the light was “an
extremely stale yellow light” and further denied that it was red.  She denied
that she was on a cell phone at the time of the collision.  She stated that she
could not safely stop.

[12]        
Carl Welt testified by way of video deposition in advance of the trial.

[13]        
Mr. Welt was also travelling southbound.  He entered the
intersection on the green light and stopped to wait for northbound traffic to
clear in order to make his left turn.  He waited for 2 to 3 seconds.  He saw
the light turn yellow.

[14]        
While waiting he noticed a northbound vehicle (the Gill vehicle)
approaching.  Its left turn signal light was illuminated at the last minute. 
The vehicle did not stop.  It entered the intersection and started into its
left turn at the same speed or with some slowing to about 30 to 50 kmh.

[15]        
Mr. Welt commenced his turn as the other vehicle had just started
its left turn.  Out of the corner of his eye he then saw a glimpse of a
southbound vehicle (the Sekihara vehicle) beside him in the intersection.  As
he was about 30% into the arc of his turn, and his vision was forward, he did
not see the vehicle beside him or its speed.  He had a limited opportunity to
observe.  About 1 to 2 seconds later he heard the impact.

[16]        
Ms. Gill testified that she was driving her mother’s black 2003
Honda Civic from her home in Abbotsford the short distance to Abbotsford
Collegiate School.  She was travelling northbound on McCallum Road.  Her
intention was to turn left on to McDougall Avenue.

[17]        
At the time of the motor vehicle accident the defendant Ms. Gill
was 20 years old and held a class seven, new driver’s licence, or “N” licence. 
She had obtained her learner’s licence in 2005.  When asked in cross examination
if she was an inexperienced driver, she replied that she considered herself
experienced.

[18]        
Ms. Gill testified in direct examination that as she proceeded
north on McCallum Road, the light was green and traffic was busy.  Four to five
cars passed, the light turned yellow and Ms. Gill started her left turn. 
She saw the truck (driven by Ms. Sekihara) about 10 cars away when she was
just starting to make the turn.  Ms. Gill was looking where she was to
go.  She was hit by the truck.

[19]        
When asked what she thought the truck was going to do, Ms. Gill
stated that because the light was a late yellow, she assumed it would stop
before the intersection.

[20]        
In cross examination, Ms. Gill agreed that as she entered her left
turn, she had taken her foot off the brake and started to accelerate before she
looked at oncoming traffic.  She said that it seemed that she would be okay.

[21]        
Although Ms. Gill initially stated that the events were clear, in
cross examination she stated that she does not remember much of the accident.  She
cannot recall everything that happened.  She does not remember if she stopped
before she entered the intersection but says that she must have.  She does not
remember her speed while making the turn but remembers it as slow.  She does
not have much memory about 2007 and stated that her memory is really blurry.

[22]        
Ms. Gill confirmed that she had taken her eyes off the truck and
never looked back at the truck after she initially saw it approach the
intersection.  She disagreed that the truck was in the intersection when she
started her turn.

[23]        
As a result of the accident, the Sekihara vehicle had $5000 worth of damage,
and the Gill vehicle was written off.

2.              
Discussion

[24]        
The issue raised by the parties in the determination of liability for
the accident requires a determination of which vehicle had the right of way. 
The defendant submits that the plaintiff, Ms. Sekihara, should have
yielded the right of way to Ms. Gill.  The plaintiff submits that Ms. Sekihara
was the dominant vehicle and therefore had the right of way.

[25]        
The defendants submit that the evidence of Mr. Welt ought to be
relied upon in that 3 to 5 seconds passed after the light turned yellow and
before the collision.  As the yellow light changes to red after 3.4 seconds, it
is likely that the light was red at the time Ms. Sekihara entered the
intersection, and if it was yellow, it must have been a very stale yellow.

[26]        
The plaintiff submits as follows with regard to the evidence of Mr. Welt:

 It is submitted that Mr. Welt’s evidence on
this point is consistent with that of Ms. Sekihara.  Ms. Sekihara had
entered the intersection as the defendant turned left in front of her.

 The only point of contention between the evidence
of Mr. Welt and that of Ms. Sekihara is with respect to the yellow
light.  Mr. Welt testified that he sat in the intersection at a yellow
light for two to three seconds before he caught a glimpse of Ms. Sekihara’s
vehicle.  Ms. Sekihara, on the other hand testified that the light turned
yellow just as she entered the intersection.  Ms. Sekihara testified on
cross examination that she was unable to safely stop.

 If Mr. Welt’s evidence is accepted, it is
possible to calculate where Ms. Sekihara’s vehicle would have been when
the light turned yellow.  Ms. Sekihara was travelling at approximately 14
m./sec. (50 kph = 50,000 metres /hr. divided by 3600 sec./hr. = 13.89 m./sec.
or 14 m./sec).  In two to three seconds, Ms. Sekihara would have travelled
28 to 42 metres.  Mr. Welt was in the intersection when he saw her.  There
is no evidence as to how far Mr. Welt was in to the intersection.  If it
is assumed that he had moved his vehicle adjacent to the east lane of McDougall
Street he would be approximately 7 metres into the intersection.  This in turn
would put Ms. Sekihara 14-28 metres from the intersection (1-2 sec.) when
the light turned yellow.  Taking into account reaction time for braking
purposes once she saw the yellow light, Ms. Sekihara would have either
been in the intersection or half a second from it.  Clearly she would have been
unable to bring her vehicle to a safe stop in those circumstances.  This also
supports Ms. Sekihara’s contention that the light turned yellow as she
entered the intersection.

 Given the circumstances of this case, it is
submitted that Ms. Sekihara’s vehicle constituted an immediate hazard when
the defendant decided to initiate her turn for the following reasons:

                                  
(i)         
Ms. Sekihara testified that she was travelling just over the speed
limit of 50 kph (14 m./sec.) and intended to travel straight through the intersection;

                                 
(ii)         
Ms. Sekihara testified that the traffic light turned yellow just as
she entered the intersection;

                               
(iii)         
given the defendant’s own evidence, Ms. Sekihara had, at best, less
than 1.5 seconds to bring her truck to a safe stop if she was 8-10 car lengths
away from the intersection and travelling 50 kph;

                               
(iv)         
For the more likely scenario is that Ms. Sekihara was at most 14-28
metres (1-2 sec.) from the intersection when the light turned yellow and, given
normal reaction time, would have been within the intersection or a half a
second outside of it before attempting to bring her vehicle to a stop.

[27]        
In making findings of fact in these circumstances, I must assess the
credibility of the witnesses to the accident.

[28]        
I find Ms. Sekihara to be entirely credible.  Throughout the trial
she testified in a calm, thoughtful and understated manner.  She was unshaken
in cross-examination on all issues, including the accident itself.

[29]        
As Ms. Gill admitted that her memory of the events is “really
blurry” her evidence is not reliable.  As her evidence was often internally
inconsistent, and she was somewhat evasive, her evidence is not credible in
many respects.

[30]        
Mr. Welt is an independent witness who did his best to assist the
court by testifying.  While his sincerity and intentions are not questioned,
his evidence regarding the time that he was waiting to make his left turn is
unclear or likely inaccurate.

[31]        
The facts not in issue are that the duration of the yellow light was 3.4
seconds and that no witness gave any evidence of having observed a red light
before the impact.

[32]        
Mr. Welt testified that he was stopped waiting to make his left
turn for 2 to 3 seconds, and that the impact occurred 1 to 2 seconds after he
saw the Sekihara vehicle beside him.  With regard to the 2 to 3 seconds, as a
result of some differences in the evidence as he gave it and as it was restated
to him in questions, I take his evidence to be that he waited a total time of 2
to 3 seconds in the intersection before and after the light turned yellow. 
With no evidence of the light turning red, the total time that Mr. Welt
was in the intersection on the yellow light cannot be the sum of the times,
possibly 4 to 5 seconds, as the yellow light lasted only 3.4 seconds.

[33]        
With regard to the 1 to 2 seconds interval, I take his evidence to be
that it took Ms. Gill a short time to travel the distance from entering
the intersection to the location of the Sekihara vehicle in the intersection’s curb
lane of southbound McCallum Road.  It is understood and accepted that lay
witnesses have a general difficulty measuring time accurately especially when
an unexpected event occurs.

[34]        
I accept Ms. Sekihara’s evidence that when she entered the
intersection the light just then turned yellow.  She was not distracted and not
on the phone at the time.  I do not accept Ms. Gill’s evidence that the
light was a stale yellow when Ms. Sekihara entered the intersection as Ms. Gill
also testified that the light was green as she herself approached.  That the
light was green as Ms. Gill approached the intersection is consistent with
Mr. Welt’s evidence.

[35]        
When Mr. Welt was also in the intersection having just begun his
left turn, Ms. Sekihara’s vehicle was in the intersection beside him to
his right and Ms. Gill’s vehicle had just commenced its left turn without
stopping or looking to see where the Sekihara vehicle now was.  The Sekihara
vehicle was properly in the intersection and was there to be seen if Ms. Gill
had looked.  Ms. Gill did not look.

[36]        
Two sections of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 are relevant to these circumstances.  Sections 128
and 174 state:

Yellow light

128      (1)  When
a yellow light alone is exhibited at an intersection by a traffic control
signal, following the exhibition of a green light,

(a)  the driver of a vehicle approaching
the intersection and facing the yellow light must cause it to stop before
entering the marked crosswalk on the near side of the intersection, or if there
is no marked crosswalk, before entering the intersection, unless the stop
cannot be made in safety,

(b)  a pedestrian facing the yellow light
must not enter the roadway, and

(c)  a pedestrian proceeding across the
roadway and facing the yellow light exhibited after he or she entered the
roadway

(i)   must proceed to the sidewalk as
quickly as possible, and

(ii)  has the right of way for that
purpose over all vehicles.

(2)  When a yellow light alone is exhibited at a place other than an
intersection by a traffic control signal,

(a)  the driver of a vehicle approaching
the signal must cause it to stop before entering the nearest marked crosswalk
in the vicinity of the signal, or if there is no marked crosswalk, before
reaching the signal, unless the stop cannot be made in safety, and

(b)  a pedestrian must not enter the
roadway in the vicinity of the signal until either

(i)   the traffic control signal facing
the vehicular traffic exhibits a red light, or

(ii)  a traffic control signal instructs
the pedestrian that he or she may cross the roadway.

Yielding right of way on left turn

174            When a vehicle is in an
intersection and its driver intends to turn left, the driver must yield the
right of way to traffic approaching from the opposite direction that is in the
intersection or so close as to constitute an immediate hazard, but having
yielded and given a signal as required by sections 171 and 172, the driver may
turn the vehicle to the left, and traffic approaching the intersection from the
opposite direction must yield the right of way to the vehicle making the left turn.

[37]        
The case of Raie
v. Thorpe,
[1963] B.C.J. No. 14 (C.A.) is the leading authority on s. 174.  At
paragraph 18, Mr. Justice Tysoe states:

I do not propose to attempt an
exhaustive definition of “immediate hazard.”  For the purposes of this appeal
it is sufficient for me to say that, in my opinion, if an approaching car is so
close to the intersection when a driver attempts to make a left turn that a
collision threatens unless there be some violent or sudden avoiding action on
the part of the driver of the approaching car, the approaching car is an
“immediate hazard” within the meaning of s. 164.

[38]        
Mr. Justice Tysoe also stated that the time the question of
immediate hazard and right of way arises is the moment before the driver who
intends to make a left turn actually commences it and not some earlier time.

[39]        
In Campbell
v. Swetland,
2012 BCSC 423, the defendant driver turned left in front of the plaintiff,
a motorcyclist.  The court held that because the plaintiff was there to be seen
by the defendant before commencing her left turn and she commenced her turn
without stopping, the defendant was 100% responsible for the accident.

[40]        
In these circumstances Ms. Sekihara’s vehicle constituted an
immediate hazard when Ms. Gill made her decision to initiate a left turn. 
I therefore find that the defendants are 100% liable for this accident.

DAMAGES

1.    
The Plaintiff’s History and Circumstances

(a)           
Pre-Motor Vehicle Accident History

[41]        
Ms. Sekihara was born on April 22, 1978 in Tokyo, Japan
and immigrated with her family to Canada when she was 3 years old.

[42]        
Ms. Sekihara was a good student.  She began elementary school in an
ESL class, but by Grade 6 was in a learning enrichment class for advanced
students.  She continued to excel in academics and graduated on the honour
roll.

[43]        
In addition, she was very active in sports, and participated on
every team including wrestling, softball and judo.  She attended Point Grey
Secondary School with the exception of Grade 10 when she attended Prince of Wales Secondary
School in an outdoor education program where she discovered a passion for
snowboarding.

[44]        
In Grades 9 and 10, Ms. Sekihara took some of her academic classes
in the summer so that she would have more time to snowboard after school.  In
Grades 11 and 12 she was a snowboard instructor at Cypress Mountain.

[45]        
Other high school jobs included working in her father’s dental
technician’s office, participating in a television show, and organising parties
and a graduation weekend for which she charged admission fees.

[46]        
After graduation from high school in 1996 she moved to Whistler so she
could snowboard there.  She also travelled to Australia and New Zealand to snowboard.

[47]        
Ms. Sekihara followed this passion and became a professional
snowboarder in 1997.  At one point, she was ranked 10^th in the
world.

[48]        
For a period of time she lived with Maelle Ricker, who is a recent
Olympic gold medalist, and Natasza Zurek, one of the best female snowboarders
in the world.  Together they snowboarded at every opportunity.  Ms. Sekihara
travelled extensively around the world while she was a professional, a life she
describes as characterized by arduous training and competing.

[49]        
After she left professional snowboarding in 2001, Ms. Sekihara
pursued a number of activities.  She became a coach and a sports photographer. 
She acted as an agent for Natasza Zurek, Tadashi Fuse, Korean and Japanese
snowboarders and Maelle Ricker for her 2006 Olympic contract.  She operated a
tour company.  She bought and sold cars, snowmobiles and trailers.  She sold
snowboarding equipment.  She bought, renovated and sold real estate.

[50]        
Ms. Sekihara had bought her first piece of real estate, a
condominium in Whistler, in 1998 when she was 20 years old.  She paid
approximately $150,000.00 for it.

[51]        
In 2005, Ms. Sekihara became a consultant for a professional
snowboarder from Japan, and in 2007 became general manager of Tadashi Fuse
Snowboarding Limited.  At the time of the accident, the company was in the
business of producing snowboarding films and was in the process of taking the
films to an international market.  In that role she assisted Mr. Fuse with
the negotiation of contracts, travel arrangements, and the production of
promotional videos.  Two videos of the snowboarding series of Heart Films were
completed.

[52]        
In the four or five years before the motor vehicle accident, Ms. Sekihara
described herself as a “go, go, go type of person” and wishes she could have
bottled that energy to use today.  She was really happy, quite outgoing, and
described herself as “curious, energetic and social”.

[53]        
Ms. Sekihara described her physical condition before the
motor vehicle accident as very good.  Being active was “just who she was”.  She
had had a back injury in approximately 1997.  Although it was described in an
article as a broken back, she did not recall it as she was not in a brace or
hospitalised.  It did not cause her any
prolonged period of pain or disability.  She was unable to remember a 2002
x-ray of her low back or the reason for it and could not remember any back pain
during that period.

[54]        
Ms. Sekihara was also unable to remember anything about a massage
she had on October 1, 2006.  She did not see a doctor during that period
for a sore back or obtain any physiotherapy treatments during that period.

[55]        
At the time of the accident, Ms. Sekihara was just married and at
the “start of a new chapter”.  It was an exciting time with everyone in her
circle “so amped to succeed”.  The film crew was working hard on another volume
of the snowboarding film series.

[56]        
It was her goal to retire by age 30 with four children in her future. 
By retire, she meant that she would by then be financially free to choose how
to continue to earn income rather than having to leave the house to be on time
for a job or live paycheque to paycheque.  She is now not sure if she is
capable of having four children.

[57]        
Ms. Zurek testified at the trial.  She is a retired snowboarder
having competed in the 1998 and 2002 Olympics.  Her friendship with Ms. Sekihara
started in Grade 10 in 1995 and they have continued to be great friends.  Ms. Zurek
lived in Ms. Sekihara’s home until 2008.

[58]        
Before the accident, Ms. Sekihara was described as strong and
athletic.  In addition to her snowboarding abilities, Ms. Sekihara
skateboarded, hiked, swam, and biked.  Her disposition was upbeat, social,
enthusiastic, friendly, disciplined and tough.  She never complained about back
pain.

[59]        
Ms. Zurek described how Ms. Sekihara became a sports
photographer after she left professional snowboarding and spoke of the physically
demanding aspect of that work.

[60]        
Ms. Zurek also testified of Ms. Sekihara’s role as an agent
for her.  She negotiated sponsorship contracts for her and assisted with
renovations of her Yaletown property.

[61]        
Tara Teigen testified.  She was also a snowboarder and competed in the
1998 Olympics and competed with Ms. Sekihara on the World Cup circuit
which is the highest level before the Olympics.  She described Ms. Sekihara
as being passionate about snowboarding:

It’s what she lived and breathed
and it’s what her circle of friends did and how she made a living.  It was her
whole life, her passion.

[62]        
Ms. Teigen stated that Ms. Sekihara had no physical
limitations “off the hill.”  On the hill, she had hurt her knee and her
shoulders, but it did not stop her from snowboarding.  She would go home and
ice her knee and she would wear a harness for her shoulder.

[63]        
Before the accident, Ms. Teigen described Ms. Sekihara as
spontaneous, fun loving, enthusiastic and funny.  She was the instigator of the
good times.

[64]        
Dianne Buschell also testified.  She stated that Ms. Sekihara was
one of her best friends and was the first friend Ms. Sekihara made after
she immigrated from Japan.  They still talk many times a week.

[65]        
Ms. Buschell described Ms. Sekihara in high school as
outgoing, confident and fun.  After high school she was into business, selling
snowboarding and skateboarding gear, buying and selling cars and planning
events they paid to go to.  She was making money most of the time as well as
being very sporty.

[66]        
When Ms. Sekihara was in her 20’s, Ms. Buschell said that she
was managing snowboarders, pursuing photography and had rental properties.  She
described her as confident, a risk taker and as having an entrepreneurial
spirit.  She was smart and motivated.  Before the motor vehicle accident, Ms. Buschell
described Ms. Sekihara as happy, active, a lot of fun and very social.

[67]        
Mrs. Yushiko Sekihara is the mother of the plaintiff.  She is
retired and lives in Vancouver.  She sees her daughter often.

[68]        
The mother testified that growing up, Ms. Sekihara was very active,
smart, outgoing and enjoyed every sport.  When she started snowboarding in high
school she wanted to go to the Olympics.

[69]        
While snowboarding she had two knee surgeries and a shoulder injury
which resulted in her not being able to attain Olympic levels.  The injuries
did not slow her down; she worked hard to recover and go back and snowboard. 
She does not remember her daughter complaining of a sore back.

[70]        
Before the motor vehicle accident, Ms. Sekihara was business
oriented and enjoyed meeting people.  She liked challenges.  Easy going is how
her mother described her emotionally.

[71]        
Dave Murphy testified that he married Ms. Sekihara two weeks before
the motor vehicle accident in 2007.  He has worked for Whistler Blackcomb as a
certified tree faller since 2001.

[72]        
Mr. Murphy met Ms. Sekihara in 2003.  He was attracted to her
because she was energetic, lovely, outgoing and unique.  They snowboarded and mountain
biked and enjoyed being active together.  The only activity he knew of that Ms. Sekihara
was unable to do was running due to her hurt knee.

[73]        
Other than her knee, Ms. Sekihara had no physical complaints, and
no back pain.  She was a very strong girl, he testified, freakishly strong. 
His wife was happy, energetic, outgoing, fun and interesting before the
accident.

[74]        
He spoke of Ms. Sekihara’s work as a sports photographer and the
physical requirements involved.  He said the backpack of equipment was pretty
heavy, and he did not like to carry it himself.

[75]        
Ms. Sekihara also did the car repairs for the family.  She had done
a front-end repair and replaced the brakes on the Chevy truck.

[76]        
Mr. Murphy testified with respect to the real estate properties of Ms. Sekihara. 
She had bought and sold in Sun Peaks and owned a large house in Whistler which
they live in and rent rooms.  Before he lived there, a huge addition was put on
the back of the house by Ms. Sekihara.  After he moved in, they did
another renovation of the hardwood flooring, tiling, trim, painting, “basically
everything on the inside”.  Ms. Sekihara did most of the home and yard
maintenance prior to the accident.

(b)           
The Motor Vehicle Accident

[77]        
At the time of the accident Ms. Sekihara was 29 years of age.

[78]        
Ms. Sekihara testified that she felt the impact of the collision as
a crash, not at high speed but not a soft rear ending.  It was frightening. 
She knew that she was injured right away.  She had a very acute pinching in her
neck, a really bad headache and she was stiff and sore as though a metal pole
had gone through her body.  She did not go to the hospital because she is a
“suck it up” person and thought that she would get better.

[79]        
During the night the pain was not tolerable and something felt wrong.  The
following day, Ms. Sekihara attended the Whistler Health Care Centre where
she complained of headaches, difficulty sleeping and neck and back pain.

[80]        
Ms. Sekihara’s first saw her family doctor, Dr. Ian
Tamplin five days after the accident.  Ms. Sekihara recalls the
appointment as being fairly brief.  She told her doctor that she was very sore
and she was concerned.  She compared it to snowboarding injuries where she
would be sore but the next day it would go away.  The pain that she was
suffering from the motor vehicle
accident was not going away.  She was having difficulty sleeping and she was
very anxious. 

(c)           
Post Motor Vehicle Accident Events, Treatment and Recovery

[81]        
Ms. Sekihara testified that in the weeks and months following the
motor vehicle accident she had constant back pain which did not resolve.  All
of her previous injuries had gotten better.  She pursued chiropractic,
physiotherapy and massage therapy treatments.  She was unable to pursue her
usual activities and could not skateboard or surf because of the pain.

[82]        
There was a two-month promotional tour in Japan in the fall of 2007 for
the film she had produced for Tadashi Fuse.  As a result of the pain, Ms. Sekihara
could not participate in any of the activities and returned home after two
weeks.  The flights to and from Japan were painful.  She stated that she did
not achieve her business goals on the trip because since boarding is a guy
thing, the only way to succeed is to do as good or better.  By being unable to
skateboard and having to lie down in the van to rest during the trip, she was
not doing as good as the guys.

[83]        
Ms. Sekihara continued to see Dr. Tamplin.  She was also
referred to specialists and saw a neurologist, Dr. Johnson, a
rheumatologist, Dr. Badii, and a physiatrist, Dr. Hershler.  She was
excited when the bone scan showed a hot spot as it was the exact point where
her back hurt.

[84]        
In an attempt to heal herself, Ms. Sekihara took the month of March
2009 off work as medical leave.  She eliminated all of her responsibilities and
focused on rehabilitation efforts through physiotherapy and massage.  She found
no improvement.

[85]        
When Dr. Badii saw Ms. Sekihara the second time in the spring
of 2010, he concluded that there was nothing more he could do for her and that
the main stays of treatment would be medication, staying active, core
strengthening and stabilizing exercises.

[86]        
In 2008 she started day trading as another area of investing in order to
make money.  The funds came from the sale of a duplex she owned in Sun Peaks. 
She did the trading from her house in a reclined position so that there was no
pressure on her low back.  In the first year, it did not go well and she lost
approximately $400,000 when the market crashed.  When she attempted to recoup
her losses the following year, she lost a further $300,000.

[87]        
By early 2010, Ms. Sekihara had laid herself off from Tadashi Fuse
Snowboarding Ltd. as she was unable to perform her duties.  She also thought
that if she simplified her life, because she had tried virtually everything
else without success, her back pain might be ameliorated.

[88]        
The summer of 2010 saw some improvements in energy and mood as she was
getting outside more and fishing with her husband.  However, in September 2010
Ms.  Sekihara experienced a significant aggravation of her back pain
requiring three days of hospitalization at Squamish General Hospital.  Her back
pain was so severe that Ms. Sekihara had difficulty mobilizing and had to
crawl on the floor to telephone 911 for an ambulance.  Ms. Sekihara
testified that the episode in September 2010 was shocking because it came
out of nowhere.  She became more fearful of doing regular activities such as
mushroom picking by herself as she could have another pain episode.

[89]        
After her discharge from hospital in the fall of 2010, Ms. Sekihara
underwent a series of IMS (intramuscular stimulation) treatments which provided
some relief to her back pain.  In early 2011, Ms. Sekihara became pregnant
and during her third trimester, she experienced relief as well.

[90]        
In early 2011, she bought the snowboard film company from Tadashi
Fuse, and now makes a limited income from that investment.

[91]        
Although she had planned to try to conceive a child soon after her
marriage in 2007, she delayed until the radiographic imaging was completed in
2010.  In the third trimester of her pregnancy she had no pain and felt like
her old self again.  After her son was born in October 2011, the back pain
returned.  She testified that her back pain is now worse because her son is
heavier and crawling and she has difficulty lifting him.

[92]        
With regard to exercise, she is outdoors more, walking with her husband
and fishing.  If the pain goes away she would love to do more exercise, but
there is intense pain even with gentle exercise.  She is doing everything she
can to strengthen her core muscles.  The weight gain of eleven kilograms since
2007 and her deconditioning is of concern to her.

[93]        
Ms. Sekihara testified that she is really worried about the future,
about having back spasms, and being unable to deal with her son.  She would
like to have more children but she is concerned about being able to care for
them.  Although her husband has assisted her while he is on parental leave, he
has to return to work and Ms. Sekihara does not know how she will cope.

[94]        
The injuries sustained in the motor vehicle also had a psychological
component.  Ms. Sekihara stated that the first winter after the motor
vehicle accident, 2007/2008, she would wake up with pain and go to bed with
pain while everyone else was out doing great things.  She would wait for them
to come home.  She described it as “perpetual ground hog day.”  She did not
think she was depressed; she thought she was “hermitting” and feeling very
trapped in her house.  These feelings of being trapped were worse in the
winters.

[95]        
Ms. Sekihara denied the proposition put to her on cross examination
that it was the day trading stock losses which caused her depression.  She
agreed that she was embarrassed and upset about her loses but they were not the
source of the depression.  In fact, day trading in stocks gave her something
she could do at home and it was interesting.  Her monetary losses were simply
that; she said that it was “just money, not an arm”.

[96]        
Ms. Sekihara agrees that since her son was born her mood has
improved although she has not returned to being the person that she was.  She
testified that she is trying to be happier.

[97]        
Over the five years after the accident, her mood was up and down with
some dark times.  The first winter there were changes, and the first and second
trimester of her pregnancy were also difficult.  Anti-depressant medication was
not possible while she was pregnant or breastfeeding.  If she needs it later,
she will consider medication to assist her mood.

[98]        
Before the accident, she would describe herself as being super confident,
active and fit, and young and excited at an awesome time.  After the accident
she feels confused, tired, fat, a little bit hopeless, anxious, and questioning
life as she said:  “What’s the point?”

[99]        
The family and friends who testified described changes to Ms. Sekihara
after the accident.  Since the accident, Mrs. Sekihara has noticed that
her daughter does not participate in many outdoor activities anymore.  She is
trying hard to care for the baby by herself but lifting him triggers back pain. 
She does not complain because she is the kind of person who does not complain. 
She does not go out but stays at home.  Mrs. Sekihara is worried about
her.

[100]     Mrs. Sekihara
denied that the losses in stock trading were the cause of depression.  She said
that her daughter can gain it back in other ways.

[101]     Dave
Murphy testified that he is worried about his wife.  He confirmed that
following the motor vehicle accident they pretty much stopped all of the
activities they used to do together.  He sees that she still has pain from
simple movement.  She has isolated herself and is not as bubbly, outgoing or
energetic as she used to be.  Before the accident she thought she could do anything
and now she cannot do so many things.  He helps her in every way he can around
the house and does all the driving.

[102]     With
regard to the losses from day trading, he knows that the outcome was not the
best but he thinks that his wife is fine with the experience.

[103]     Natasza
Zurek described her friend these days as being calmer, lethargic, out-of-shape
and tired.  She has noticed that she is limited and unable to do the things she
used to be able to.  She also noticed a change in her social behaviors which worried
her.  The depression is attributed by Ms. Zurek to Ms. Sekihara’s
loss of ability to use her body.  The loss took a toll.

[104]     Ms. Zurek
was aware of the monetary losses from stock trading.  She said that Ms. Sekihara’s
response to the losses was nonchalant.  She has a positive outlook and has learned
a lesson, albeit in a very hard way.

[105]     Dianne Buschell
has noticed a decline in Ms. Sekihara.  She has observed her being in pain
and she appears to be very stiff and sore.  She has noticed that it is Dave Murphy
who tends to carry their child around most of the time.

[106]     Ms. Buschell
describes Ms. Sekihara as being inactive, not motivated and depressed. 
She is doing less and less because she is in pain every day.  Most of the time
she stays around her house.  Things are better in the last year with the baby. 
Although recently she has been able to go boating and fishing, it is not the
same as she and Dave used to do many sports-related things together.

[107]     Although Ms. Buschell
had known Ms. Sekihara to lose money from time to time on her various
endeavours, they were not setbacks to her.  With regard to the loss from day
trading, Ms. Buschell said that Ms. Sekihara was quite calm and relaxed
about those things saying that “that’s business” and “sometimes you win and
sometimes you lose”.

[108]     Tara
Teigen became tearful when discussing the changes she has noticed in her friend
Yuho Sekihara.  She spoke of the day of snowboarding with gold medalist Maelle
Ricker after the 2010 Olympics and how Ms. Sekihara had to leave early
because her back hurt too much.

[109]     Ms. Teigen
described it as a shame that Ms. Sekihara is unable to snowboard given
where she lives, the fact that her husband still works for Whistler Blackcomb
and that certainly her little boy will want to become a snowboarder.

[110]     Post-motor
vehicle accident, Ms. Teigen described Ms. Sekihara to be like a
grandma.

2.              
The Medical Evidence

(a)           
Dr. Ian Tamplin

[111]     Dr. Tamplin
testified regarding his medical-legal report of March 21, 2011.  When he
saw her after the accident on September 1, 2007, she complained of
headache, insomnia and flashbacks of the accident.  She was prescribed
medication to help her with sleep.

[112]     On
November 8, 2007, when Ms. Sekihara saw Dr. Tamplin’s partner,
she stated that she had had ongoing low back pain since the accident but her
headaches had resolved.

[113]     Dr. Tamplin
ordered an X-ray of her lumbar spine, and because some degeneration at L4-5 and
L5-S1 was noted, a CT scan was ordered.  That report concluded:  “Minimum disc
bulging.  There is spondylosis of L5 without a spondylolisthesis.”

[114]     As the low
back pain persisted, Ms. Sekihara was referred to a neurologist, Dr. Johnson,
who saw her on July 10, 2008.  Dr. Johnson noted that her low back
pain has persisted, and is accompanied by some numbness over the buttocks with
radiation down the left side.  He did not have the CT scan for review.  He
thought that this was predominantly mechanical back pain, but ordered an MRI
scan for further evaluation.

[115]     The MRI on
November 9, 2008 indicated marked disc space loss at L4-5 and bilateral L5
pars interarticularis fractures with no associated spondylolisthesis.

[116]     Dr. Johnson
wrote a follow-up report to Dr. Tamplin after the MRI which showed some
degenerative change, a pars fracture at L5, and a small annular tear at the L5
disc.  His assessment was that there was no evidence for neurological
dysfunction in association with her chronic mechanical back pain.  His
recommendations were gentle stretching, yoga, and a stationary bicycle for
fitness.

[117]     Dr. Tamplin
notes that the symptoms were exacerbated on February 23, 2009 when Ms. Sekihara
slipped while walking her dog.  He prescribed medications due to the underlying
chronicity of her pain.

[118]     A referral
to Dr. Badii, a rheumatologist, was made by Dr. Johnson.  Dr. Tamplin
attributes the referral as being due to the two-year duration of the symptoms
and their unresponsiveness to non-invasive measures.  Ms. Sekihara also
twice saw Dr. Hershler, a physical medicine and rehabilitation specialist.

[119]     Dr. Badii
notes that Ms. Sekihara was completely asymptomatic until the accident. 
He notes that her back pain has become constant and although she has tried many
treatments, nothing has provided any lasting pain relief.  Pain medications
either did not help or had side-effects of drowsiness or dizziness.

[120]     In his first
report to Dr. Tamplin, Dr. Badii states that he thinks the pain is
mechanical in nature.  He also states that the injury from 1995, said to be a
fracture, was likely pars defects, and “[c]ertainly they would not have any
bearing on her current symptoms, as she was highly active and free of any pain
right up until the motor vehicle accident of August 2007.”

[121]     A
follow-up report by Dr. Badii notes that the bone scan shows abnormal
uptake anteriorly at the L4-5 disc space which is in keeping with early
degenerative disc changes or injury.  He states that Ms. Sekihara has pain
which is fairly consistent and that she has developed chronic back pain with
symptoms which appear to have reached a plateau.  The mainstays of treatment,
he opined, will have to be with pain medications, staying active, core
strengthening and stabilizing exercises.

[122]     As
previously mentioned, on September 1, 2010, Ms. Sekihara was
hospitalised at Squamish General Hospital where she was transferred from
Whistler Emergency as a result of a severe exacerbation of her lower back
pain.  The hospital records note that she has “chronic back pain possibly
secondary to a L4/5 or L5/S1 ligament of disc issue”.  The report notes that
“this is quite significant spasm that she is experiencing.”

[123]     Symptoms
were ongoing when she saw Dr. Tamplin on November 15, 2010.  IMS had
provided some improvement.  She was continuing core strengthening exercises and
had lost weight.  The impact on her sleep was severe, limiting sleep to four
hours per day.  Her mood was down, and she was unable to continue with her
profession as an extreme sports photographer, her home maintenance and other
endeavours.

[124]     In his
medical legal report, Dr. Tamplin diagnoses Ms. Sekihara as having
sustained a severe loss of disc height at L4-5 with no evidence of
radiculopathy, and depression secondary to her reduced function, both of which
were caused by the accident.  He states that the prognosis for further
improvement in her physical limitations is poor considering the time that has
lapsed.  In addition, he states that:  “She will also be prone to further
severe acute exacerbations of her now chronic problem.” and “… she has reached
a plateau and no further improvement is expected.”  He noted with regard to the
psychological perspective, there is a definite potential for improvement but
she may require therapy.

[125]     Dr. Tamplin
also notes that these injuries from the accident have had a “very severe
impact” on Ms. Sekihara’s quality of life both from a physical and mental
perspective.  He states in his report:

She has been unable to return to
her pre-accident high level of business activity in the prime of her productive
phase of life.  She is now unfit to follow her passion for snowboarding from a
business and recreational perspective because of her physical limitations.  She
has also been denied the freedom to have a child when she wanted to, because of
investigations and treatments.  This was a great disappointment for her.  She
has been highly motivated to recovery and has been compliant to all reasonable
suggestions.

[126]     In his
oral testimony, Dr. Tamplin stated that he had no reason to disbelieve Ms. Sekihara
when she said on November 8, 2007 that she had ongoing low back pain since
the accident.  He described Ms. Sekihara as being very stoical and has
difficulty reporting and describing pain.  He said further that it was his
impression that Ms. Sekihara worked very hard on her recovery and was very
motivated.  He attributed her deconditioning to the lack of her ability to do
her usual activities because of back pain.  He reiterated that the injuries
from the motor vehicle accident had a “huge effect” on Ms. Sekihara’s
quality of life.  Finally, he confirmed that Ms. Sekihara did not seek
medical assistance from him for back pain prior to the accident and there was
no way to predict if there would have been any symptoms in the future from her
pre-existing degenerative condition.

(b)           
Dr. C. Hershler

[127]     Dr. Hershler
is a physiatrist and a specialist in physical medicine and rehabilitation.  He
has practised in Vancouver since 1985 at the GF Strong Rehabilitation Center
and has taught in both the school of Rehabilitation Medicine and in Mechanical
Engineering at the University of British Columbia.  He is also a Diplomate in
the Canadian and American Academies of Pain Management.

[128]     Dr. Hershler
saw Ms. Sekihara on April 9, 2009 and April 12, 2010.  His
medical legal opinion and addendum to medical legal opinion were written after
those visits.

[129]    
In his first report dated April 9, 2009, he noted that:

…in the initial three months
following the accident, Yuho developed intense pain and stiffness in her neck
and body, as well as headaches.  She had difficulty with mobility.  She saw her
family doctor and began an intensive program of physical therapy that included
frequent chiropractic treatments, massage therapy and physical therapy.  She
was also given medication for pain management.

[130]     He noted
that one-and-one-half years after the accident, Ms. Sekihara estimated her
recovery at about 60 percent of her pre-accident capacity.  He notes that
although there had been improvements with resolution of the headaches, and the
pains in her neck and upper body, the low back pain had persisted.  The low
back pain is present daily and is made worse with prolonged sitting, standing
and other physical activities.

[131]    
With regard to the history of presenting complaints, Dr. Hershler
wrote as follows:

As mentioned earlier, Yuho was
completely pain free in the neck and back prior to the accident.  She does have
a remote history of injuries to the right knee and left shoulder and, in 1995,
had suffered a compression fracture to the lumbar spine (from which she had
recovered fully).  Following the 2007 accident she also had pains in the neck,
upper body and head, but these symptoms resolved.

[132]    
The diagnosis in Dr. Hershler’s first report was that the “history
and physical findings are consistent with low back pain due to a disc injury”. 
He states:

Based on the history, the
physical examination, a review of the documentation (and, in particular, the
MRI examination of November 9, 2008) and a description of the accident, it
is my opinion that the low back pain is due to an injury to the disc at L5-S1. 
This opinion is further strengthened by virtue of the history that Yuho
experiences more pain with weight-bearing activities and less pain when she is
in a position to relieve pressure on the spine.  It is my opinion that the disc
injury was caused by the motor vehicle accident on August 27, 2007.  Yuho
had no similar history of back pain prior to the accident.  There were no signs
of any radiculopathy and the pain originates from the injury to the disc
itself.

[133]     In his
second report dated July 6, 2010, Dr. Hershler notes that there have
been no significant improvements in Ms. Sekihara’s clinical condition over
the past year.  She is aware of low back pain on a daily basis, with the level
of pain varying from 3 out of 10 to 6 out of 10.

[134]     Dr. Hershler
also notes that there was evidence of deconditioning and weakness in the low
back, as Ms. Sekihara had gained a total of 30 lbs since the accident
including pregnancy weight gain.  This is attributed to reduced exercise.

[135]     Dr. Hershler,
in his second report, confirms the diagnosis of low back pain due to a disc
injury.  Based on the recent bone scan evidence, his opinion is that the injured
disc is most likely to be the L4/5 disc, not the L5-S1 disc as he had
previously concluded.

[136]    
It is his opinion that the tear was probably in the L4/5 disc space and
the active region of inflammation in that disc space is the reason for Ms. Sekihara’s
ongoing pain.  He states:

Although there were no signs of
radiculopathy, it is my opinion that the injury to the L5 disc is significant
and has led to chronic pain that is made worse with loading of the spine.  As
stated in the previous report, it is my opinion that the motor vehicle accident
on August 27, 2007 caused this disc injury.

[137]    
The prognosis of Dr. Hershler is:

Yuho has had chronic pain for
over 2½ years.  Given this history, it is unlikely that her pain will simply
resolve over time.  It is more likely that she will have to continue dealing
with pain on an ongoing basis.  She needs support for further interventions.

[138]     Dr. Hershler’s
strong recommendation is that Ms. Sekihara be supported in a trial of
Pulsed Signal Therapy or Pulsed Electromagnetic Field Therapy as there is a 70%
chance that it could result in further healing.  In conclusion he states that
“at this stage, and for the foreseeable future, Yuho is disabled from gainful
employment due to the nature of her injury”.

[139]     In his evidence
at trial, Dr. Hershler explained some medical terms relative to Ms. Sekihara’s
examination.

[140]     Ms. Sekihara
has a very minor pars defect at L5.  A pars defect and his conclusion was
described as follows:

A          Well, if — if one were looking at a model of
the spine, you would have these various vertebral bodies adjacent to discs. 
They sort of alternate, so you have a vertebral body, then a disc, then a
vertebral body, disc, and — and attached to the vertebral body is an — is an
arc of bone and the function of the vertebral body and that arc of bone, which
is — which is called — part of that arc is a pars, called a pars.  It’s like
a little — it’s like a little round bridge.  The — the — the function is to
— is to protect the nerve roots and the spinal cord.

And in some people they’re born
with either a weaker piece — the actual bridge of bone is thinner or weaker or
— or may be cartilaginous rather than bony.  That’s a defect.  That’s what
they mean by a pars defect.  It just means that the bone in a particular little
bridge attached to a vertebra was noted to be less bone — less dense than
other bone.  And it’s typically totally benign and most people don’t even know
they have it for all their lives.  It doesn’t seem to have  — it doesn’t seem
to render anybody symptomatic by itself.

Q         And then the —
again, the finding in the MRI repeats the fact that there’s this pars defect,
but then it goes on and says "No associated — associative spondylolisthesis."

A          Right.

Q         What does that
mean?

A          So if you’ve got
this bridge of bone that’s holding the vertebral body in a particular position,
if you have a sufficient defect, then there might be slippage of the vertebra
relative to another vertebra, and that’s called spondylolisthesis, where the
vertebral body, instead of being like blocks, exactly on top of each other, the
one block shifts slightly, and that’s because the bridge of bone is — is a
little elongated or the defect was a little longer, so that the piece of
vertebra slips a little.  She obviously didn’t have that, so it was a very
minor defect.

[141]     The MRI
examination revealed a small tear of the annulus fibrosis.  The annulus
fibrosis is the skin or covering of the disc.  This tear is the disc injury
which is the most likely cause of the pain:

A          So we’ve talked about the bony vertebra, the
little bridge of bone attached to the vertebra, and next to the vertebra are
these soft joints which are called discs, and they comprise of gelatinous
substance enclosed by a skin, and that skin or that covering of the disc is
called the annulus fibrosis.  So think of the discs as very tiny balloons that
are bridging the different vertebral bodies.

Q         Okay.

A          And it’s important to know that that annulus
fibrosis is not without its own nerve supply and blood supply.  So the annulus
fibrosis is a living piece of organism.  It has nerves and it has blood supply.

Q         So then you go on in your report and talk
about the presenting complaints and the history — sorry, the history of
presenting complaints, and you do a physical examination, and then you make
your diagnosis and — and your prognosis.  And you — in your diagnosis, you
say that the history and physical findings are consistent with low back pain
due to a disc injury.  So what are you referring to when you talk about a disc
injury?

A          So for a variety of reasons, which I can go
into, based on the history that she’s telling me and the fact that there is
this objective evidence of a tear in that skin that’s covering the disc, I’m
saying that the most likely etiology or cause of her pain is coming from the
disc.

Q         Okay.

A          That’s what I mean by disc injury.

Q         Okay.

A          And that more
likely than not it’s related to that tear.

[142]     From his
experience, Dr. Hershler was of the opinion that approximately
80 percent of individuals with disc injuries heal spontaneously.  However,
a bone scan will light up if the disc remains injured and at a certain point of
loading becomes symptomatic; “then at any time you’ll see signs of irritation,
inflammation, and injury” because it has not healed.

[143]     Dr. Hershler
also explained that the difference between acute pain and chronic pain is a
difference in the physiological mechanism.  Chronic pain is not simply acute
pain which lasts longer.  Chronic pain, from a time definition, lasts more than
six months and could last for years or indefinitely.  There is a change in the
pain loop which means that the tiny nerves in the injury area change and become
hypersensitive as well as the area of the brain that the pain message is being
sent to becomes hyposensitive and the pain can spread in the brain.  It is an
absolute neurophysiological change that occurs with chronic pain which is why
it lasts longer.

[144]    
Other doctors diagnosed mechanical pain.  Dr. Hershler describes
the term in this answer on his direct examination:

Q         What does that mean, “primarily mechanical in
origin”?

A          It means that the symptoms are generated by
forces in the spine that usually occur with — with movement of the spine.  So
another way would be say activity-generated symptoms.  And other ways of saying
it would be different loads that go through the spine at different times can
generate different types of symptoms.

Q         Well, and you do use that phrase “loads” in
your — it’s either this first report or in the second report, and the use of
that word is — is — means something different to people in the medical
profession.  So when you say “loading the spine”, what are you referring to?

A          Yeah, I think —
I think “load” means pressure or force down through the spine, and that means
that that pressure or that force or that load would be transmitted through the
various joints of the spine, including the bone-on-bone joints with cartilage
and including the softer joints or the discs.  So you have the hard joints and
you have the soft joints that all play a role in smooth movement of the spine.

[145]    
In responding to a question regarding Dr. Grypma’s opinion, Dr. Hershler
described degenerative changes to the spine as follows:

A          I think both Dr. Grypma and I agree that
degenerative changes take many years to develop.  I would totally agree that
the degenerative changes that have been shown on x-ray and on MRI probably
started many years ago, pre-dating the accident.  And in fact that is the rule
of thumb for all of us human beings.  As we age, changes occur in our spine. 
We might get small bone spurs, we might get narrowing of disc spaces, or get
thickening of ligaments, and so on.

 Everybody, to some extent, is going to show
the signs of degeneration.  That’s an unfortunate word, but it really can be
replaced by “age-related changes”.  I agree.  I agree that those changes
occurred probably long before the subject motor vehicle accident.

The other thing one has to
realize in medicine, which is — it’s an interesting observation and it’s well
known among doctors, that simply developing these age-related changes in your
spine does not mean you get pain.  Otherwise we would be simply going to
doctors every single day, every single week, because we’re developing these
changes constantly through our life.  So the rule of thumb is that most of the
time most people are asymptomatic while these changes are developing.  Clearly,
something else has to trigger the pain because they’re not happening
spontaneously, yet we’re developing degenerative changes.  I don’t think —
honestly don’t believe any doctor would argue with that statement.

Here we
have a young woman who is developing degenerative changes but is a
highly-skilled athlete, doing incredible feats of super-loading of the spine.

(c)           
Dr. K. Riar

[146]     Dr. Riar
is a psychiatrist with a practice which is primarily forensic involving both
civil and criminal matters.  He interviewed Ms. Sekihara on January 10,
2011 and wrote a report dated June 18, 2011.  Dr. Riar testified at
the trial and the report was entered into evidence.

[147]     In his
report, he diagnosed Ms. Sekihara as having a chronic pain disorder with a
medical condition and psychological factors.  He notes that she had endured
symptoms of a major depression after the accident, which symptoms were quite
severe until about six months prior to the interview, or mid-2010.  His opinion
is that “her major depression was most likely brought on by the accident in
question and in the absence of it she most likely would not have suffered these
symptoms.”

[148]    
Dr. Riar’s prognosis is set out in the following paragraph of his
report:

As far as psychiatric disability
is concerned I believe that until about six months ago prior to my interview
with her she was certainly disabled due to her depression but at the time of my
interview her mood was improved significantly and if there was any disability
it was partial.  Having said that she was functioning marginally and there is a
high probability of her drifting into severe depression again and becoming
disabled especially if there is any extra stress to occur.  As far as her
psychiatric prognosis for next 4 to 6 months is concerned it is guarded but
with above-mentioned intervention her functioning can be improved.  Once her
present symptoms settled, I believe that her long-term prognosis is
favourable.  As far as her chronic pains are concerned they will be around for
some time to come but with the improvement in her mental state there will be
improvement in her perception of the ongoing pains and also she would have
better ability to deal with her remaining ongoing pains and discomforts.

[149]     On
cross-examination, Dr. Riar was asked if the cause of Ms. Sekihara’s
depression was the losses she sustained from day trading.  Dr. Riar was
unaware of those losses.  He agreed that they could cause stress but stated
that they do not necessarily cause depression.  Being helpless causes
depression.  It all depends on if the person has “a way out” which may depend
on the person’s assets.  He gave the example of having $1,000,000.00 and losing
$400,000.00 and the fact that that would not be a big stress.  In the case of Ms. Sekihara,
he understood her assets to be close to $2,000,000.00 so he disagreed that her
losses would have put her into depression.

(d)           
Dr. M. Grypma

[150]     Dr. Grypma
is an orthopaedic surgeon who saw the plaintiff at the request of the defence
on January 30, 2012.  He wrote two reports dated January 30, 2012 and
February 23, 2012, and he testified at the trial.

[151]     In
summary, Dr. Grypma found that Ms. Sekihara sustained a soft tissue
injury to her neck which likely healed in 3 to 4 months.  She also likely
sustained a soft tissue injury to her low back.  He disagreed with Dr. Hershler’s
diagnosis:

However, I disagree with this diagnosis, especially since Dr. Hershler’s
physical examination, it appeared to be completely normal.  It is my impression
that Ms. Sekihara highly unlikely sustained a disc injury from the motor
vehicle accident based on the following reasons.

1.   There is no record of severe
immediate low back pain.  Instead, Ms. Sekihara describes stiffness in her
back the next day.  There were no immediate visits to the emergency room and Ms. Sekihara
tolerated the drive home to Whistler, which, from Abbotsford, would have taken
about two and a half to three hours.

2.   Ms. Sekihara was first seen by
her family doctor five days after the accident complaining of headache and
insomnia but no complaints of neck or back pain.

3.   Dr. Hershler on April 9,
2009 described movements of the lumbar spine were fluid and attained full range
in all directions tested.  This is not compatible with a disc injury.  In fact,
Dr. Hershler’s physical examination appears to be completely normal.

4.   Ms. Sekihara had no complaints
of radicular pain or radiculopathy.

5.   The MRI scan indicates that the left
L5 root abuts the annulus; however, Dr. Hershler described symptoms mostly
on the right side on July 6, 2010.

6.   The SPECT bone scan on
March 10, 2010 increased uptake in the anterior L4/5 disc space
approximately two and a half years after the motor vehicle accident and
indicated that it was hot.  This would suggest a more recent injury than the
motor vehicle accident.  Bone scans usually become normal after about a year to
18 months after an injury.  Therefore, I am wondering whether this positive
bone scan could be due to the fall that occurred on February 23, 2009 when
Ms. Sekihara slipped while walking her dog.  Therefore, I agree with Dr. Badii
and Dr. Johnston.  The enduring symptoms are due to mechanical or ordinary
back pain and not a disc herniation or injury as described by Dr. Hershler.

[152]     Dr. Grypma
agreed that Ms. Sekihara had continuing complaints of back pain at the
time he saw her in January 2012.  However, he attributes her enduring
complaints to deconditioning, her recent pregnancy and weight gain, the
pre-existing asymptomatic pars defect at L5 becoming symptomatic and the
pre-existing degenerative changes at L4/5 also becoming symptomatic.

[153]     Dr. Grypma’s
impression is that the prognosis for Ms. Sekihara is good and is related
to future exercise efforts although she may continue to have lower back pain
secondary to the advanced degenerative changes at L4/5 as well as pars defect
at L5, “however, this is unlikely accident-related”.

[154]     In his
addendum report dated February 23, 2012, Dr. Grypma states that it is
“much more likely that activities of daily living and deconditioning are the
cause for previous asymptomatic degenerative disc disease to become symptomatic
rather than a single motor vehicle accident”.  He further states because Dr. Tamplin’s
medical legal report dated March 21, 2011 indicated that on her first
visit five days after the accident, there was not a complaint of neck pain or
back pain, there was therefore “unlikely any significant lower back injury
related to the motor vehicle accident”.

3.              
Discussion

(a)           
Diagnosis and Prognosis

[155]     The issues
to be considered are the nature of the injury to Ms. Sekihara’s low back
and whether it was caused by the accident.  There is also an issue regarding
the onset of the depression and its cause.

[156]     On behalf
of the defendants it is submitted that the injury suffered by Ms. Sekihara
in the accident was likely a soft tissue injury to her neck and lower back. 
The neck injury healed quickly and is resolved.  The lower back injury was also
mild, and the ongoing back problems are best considered to be mechanical or
ordinary back pain.

[157]    
The plaintiff submits that the evidence supports that Ms. Sekihara
sustained an injury to her neck which resolved within months, and an injury to
her low back which has continued and is now chronic.  In addition, she has
suffered depression secondary to her loss
of function.  Although the depression appears to be treatable and is resolving,
the chronic pain from the low back is not.

[158]     I have set
out Dr. Hershler’s evidence in detail above.  In sum, he diagnosed a disc
injury to L4/5 with chronic pain that had persisted for 2.5 years at that time and
is unlikely to resolve.

[159]     In cross
examination, Dr. Hershler disagreed with the opinion of Dr. Grypma
that the pre-existing conditions of degeneration or the pars defect
coincidentally became symptomatic at the time of the motor vehicle accident. 
During the entire period prior to the motor vehicle accident, according to Dr. Hershler,
Ms. Sekihara was putting tremendous loads on her spine without complaints
of back pain.  She became symptomatic at the time of the motor vehicle accident
because other forces went through her spine during that accident and caused a
disc injury.  Dr. Hershler stated that there is no relationship between a
pars defect and the disc injury.  A pars defect is on the outside of the spine and
the disc is on the inside.  They are independent findings.

[160]     On behalf
of the plaintiff, it is submitted that Dr. Grypma’s opinion should be
given no weight for the following reasons:

1.    
He took what can only be described as a cursory history from Ms. Sekihara;

2.    
he made a number of editorial comments in the section titled “medical
records review” which were not identified as being his own comments;

3.    
in that same section he left out salient facts which tended to support Ms. Sekihara’s
complaints;

4.    
also in that section, if he was unable to read handwriting, he simply
left those sections out of his summary without stating that he had done so; and

5.    
he was evasive at times in his oral testimony.

[161]     I agree
with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma
does not appear to have demonstrated an open mind in his examination of and
conclusions regarding Ms. Sekihara or to have taken into account the
complete medical history.

[162]     Most
importantly, Dr. Grypma’s opinion that the enduring complaints of back
pain are related to any of the four unrelated conditions is inconsistent with
the evidence of Ms. Sekihara and of the objective evidence of the tear of
the annulus fibrosis.

[163]     Ms. Sekihara,
as a snowboarder and professional athlete, many times per day for years, would
load her spine with at least 3 times her body weight every time she made a jump
with no back pain.  I do not accept Dr. Grypma’s evidence that it is
coincidental that she suffered back pain immediately following the motor
vehicle accident due to degeneration or a previously existing pars defect.

[164]      It was Ms. Sekihara’s
inability to pursue her regular activities due to her back pain which caused
the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back
pain long before she became pregnant.  The pars defect was congenital and the
degenerative changes longstanding.

[165]     The
characterisation of the low back injury is the major issue.  I prefer the
evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His
conclusions are based on his interpretation of the imaging, his examinations,
and on Ms. Sekihara’s reporting of her symptoms, both pre and
post-accident.

[166]     With
regard to the evidence of Ms. Sekihara about her symptoms and her progress
and lack of progress over the five years from the accident to the trial, I find
her to be a credible witness.  Although the substance of the evidence about the
loss of a passion and a way of life built around that passion was compelling,
her manner of testifying was calm and rather detached, reflective of her
stoicism.  Her evidence was similar to the manner described by Dr. Riar: 
“… Ms. Sekihara was very cooperative and polite.  Initially she was very
matter of fact but later on she was able to express her emotions.”

[167]     Ms. Sekihara
was unshaken in cross-examination.  Her reporting of her symptoms and
circumstances to all medical providers was consistent and was consistent with
her evidence.  The issue raised as to whether she told Dr. Tamplin of her
low back pain on her first visit to him after the accident is resolved by Dr. Tamplin’s
evidence that he may have been told and did not record that information.  I
understand that she did not inform Dr. Riar of the financial losses
because she did not consider it to be relevant to her depression.  Ms. Hunt
and Mr. Hohmann were aware of the losses as they assessed her future
employment capacity.

[168]     I accept
the evidence of Ms. Sekihara in its entirety.

[169]     Ms. Sekihara
testified that she has had pain in her back since the accident.  She has a fear
that she will have another episode of extreme pain similar to the occasion in
September 2010 when she was hospitalised.  The only time that the pain resolved
was in her third trimester of pregnancy.  It is generally worse now when she
carries her son.  Exercise, although she has always been fit and active,
exacerbates the pain.  The pain prevents her from continuing with most of her
previous income earning and recreational activities.  It interferes with her
sleep.

[170]     With
regard to pre-existing injuries, I find that the back pain experienced by Ms. Sekihara
since August 22, 2007 is unrelated to any previous injuries.  There was a
complete recovery from the lumbar spine injury which occurred in 1995.  The
massage in 2006 was likely a gift from her husband, and the 2002 x-ray was for
reasons not recalled by Ms. Sekihara but, she stated, not for back pain.

[171]     I rely
upon the opinions of Dr. Tamplin and Dr. Badii.  Dr. Tamplin
stated that she had not complained of back pain prior to the accident.  The
family and friends who testified all confirmed that Ms. Sekihara did not
complain of back pain before the accident.  In particular, her husband said the
only activity she could not participate in was running because of her knee.

[172]     The
prognoses of Dr. Tamplin and Dr. Hershler for the resolution of the
chronic back pain are poor.  Dr. Hershler states that:  “… it is unlikely
that her pain will simply resolve over time.  It is more likely that she will
have to continue dealing with pain on an ongoing basis.”  Dr. Tamplin is
of the opinion that Ms. Sekihara has reached a plateau and “no further improvement
is expected.”

[173]     The
defendants submit that with the depression, there is an issue of causation. 
The cause of the depression is, they submit, the financial losses from day
trading which coincide with the onset of the depression in 2008.

[174]     The evidence
of Ms. Sekihara is that she was “hermitting” in the first winter after the
accident, 2007.  She returned early from an unsuccessful business trip to Japan
and was housebound in pain while her new husband and all of her friends were
outdoors and snowboarding.  For the first time she was not able to be outdoors
snowboarding, doing her photography on the mountain, and being with her
friends.  It was like a “perpetual groundhog day”.  The change in her life was
dramatic.

[175]      Ms. Sekihara
felt helpless.  Although she did not use the word “depressed” to describe
herself in that time period, the other descriptions are synonymous.  Since that
time she has become more aware of the signs of depression and now describes
them as easing and resolving.

[176]     The
financial losses, she testified, did not cause her an inordinate amount of
concern.  As a person who had earned a significant amount of money early in her
life, she was philosophical about the loss of approximately one third of her
net worth.  Her family and friends confirmed that this loss was taken by Ms. Sekihara
in stride.  Her husband said that she had been depressed before the losses
occurred.

[177]     I rely on
the opinion of Dr. Riar who stated that:  “Her major depression was most
likely brought on by the accident in question and in the absence of it she most
likely would not have suffered these symptoms.”  The depression, I find, was
also caused by the accident.

[178]     The long-term
prognosis for the depression is favourable in the opinion of Dr. Riar. 
The improvement in her mental state will also assist her to deal with the
ongoing physical pain.

(b)           
Damages

(i)              
Non-pecuniary Damages

[179]    
The law regarding the assessment of non-pecuniary damages is set out in Bansi
v. Pye, 2012 BCSC 556, as follows:

[45]      In assessing non-pecuniary damages, the leading
case is Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19.  At
paragraph 45, Kirkpatrick, J.A. stated as follows:

[45]      Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. 
Much, of course, has been said about this topic.  However, given the
not-infrequent inclination by lawyers and judges to compare only injuries, the
following passage from Lindal v. Lindal, supra, at 637 is a helpful
reminder:

Thus the amount of an award for non-pecuniary damage
should not depend alone upon the seriousness of the injury but upon its ability
to ameliorate the condition of the victim considering his or her particular situation. 
It therefore will not follow that in considering what part of the maximum
should be awarded the gravity of the injury alone will be determinative. An
appreciation of the individual’s loss is the key and the "need for solace
will not necessarily correlate with the seriousness of the injury"
(Cooper-Stephenson and Saunders, Personal Injury Damages in Canada
(1981), at p. 373).  In dealing with an award of this nature it will be
impossible to develop a "tariff". An award will vary in each case
"to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).

[Emphasis included]

[46]      In other words, in
assessing non-pecuniary damages, it is not only a matter of comparing the
injuries suffered but also the effect of those injuries on the lifestyle and
personality of each person.

[180]     These
injuries, primarily the low back injury, have had a significant effect on Ms. Sekihara. 
By her own account and that of her friends and family she is now a very
different person.  Snowboarding and being physically active was a passion for Ms. Sekihara. 
She was outgoing, active, and entrepreneurial.  Now she is none of those
things.

[181]     Ms. Sekihara’s
unique ability to earn income from the various activities which she pursued
depended to a large extent on her physical capabilities.  Those capabilities
have been greatly reduced.  It is the inter-relationship of her passion for
snowboarding and her business activities of sports photography, coaching, and
producing snowboard films which exacerbates the loss suffered by her from the
back injury caused by the accident.  She can no longer snowboard as she once
did, and likely will not ever be able to.  Because of that, she cannot pursue
the business activities which were intertwined and which gave her great joy and
satisfaction.  Her passion was also a large part of her avocation.  She has
lost both.

[182]      In
addition, her other income earning strengths depended on her physical abilities
and are no longer available to her, such as renovating homes for resale.  She
can no longer do carpentry or auto mechanics as she previously did.  Her
professional and personal life has been dramatically affected.

[183]     The
plaintiff relies on the cases of: Slocombe v. Wowchuk, 2009 BCSC
967, Marois v. Pelech, 2009 BCCA 286, and Djukic v. Hahn,
2006 BCSC 154, in support of an award of non-pecuniary damages in the amount of
$135,000.

[184]     In Slocombe,
the plaintiff was 25 at the time of the accident and 29 at the time of trial. 
He was a construction worker and an energetic and physically active
outdoorsman.  He had a pre-existing asymptomatic lower back condition.  After
the accident he experienced debilitating and chronic pain.  He was awarded
$125,000 in non-pecuniary damages.

[185]     In Marois,
the 49 year old single mother of two children suffered soft tissue injuries to
her neck and back which developed into chronic pain and depression.  The trial
judge rejected the claim of mild traumatic brain injury but did find that her
prospects for improvement were uncertain and awarded the plaintiff $130,000.00
in non-pecuniary damages.

[186]     In Djukic,
the female plaintiff had pre-existing degeneration of her L4/5 disc which was
asymptomatic at the time of accident.  The court accepted it became symptomatic
as result of two motor vehicle accidents.  She had a discectomy but with
minimal success.  She continued to complain of chronic pain with anxiety.  She
was unable to continue working in her successful deli and the business was
sold.  She was awarded $125,000.00 in non-pecuniary damages.

[187]     The
defendants submit that the appropriate range of damages is $40,000 to $75,000. 
They rely on the cases of Masoodi v. Dennis, 2000 BCSC 825, Morrison
v. Gauthier, 2009 BCSC 1271, and Bansi.

[188]     In the
case of Masoodi, the plaintiff was a 41 year old cook at the time of his
accident in 1997 and 43 years old at the time of trial.  Prior to the accident
he had an asymptomatic disc generation.  Afterwards, he suffered soft tissue
injuries which continued to produce pain in his low back and right hip.  This
pain was exacerbated by physical activity, and he also suffered from
depression.  It was held that the plaintiff’s psychological symptoms would
improve with psychological counselling and other treatment.  He was awarded non
-pecuniary damages of $30,000, which the defendants submit has a present day
value of approximately $40,000.

[189]     In the
case of Morrison, the plaintiff’s injuries consisted of a sore back and
neck accompanied by persistent headaches.  The accident had also caused a L4-5
disc herniation, which resulted in low back pain extending into the buttocks
and down the leg.

[190]     There was
a significant impact on Ms. Morrison’s active lifestyle.  The accident
took away the plaintiff’s ability to compete in ironman and marathon
competitions, weekday workouts, run long distances, cross country ski,
snowshoe, hike, swim, cycle, golf, etc.  All of her activities were a thing of
the past following the accident.  Her personality also dramatically changed, as
she became moody, withdrawn, and inactive.

[191]     She went
from “a woman operating at an athletic level undreamt of by 99% of the
population to a woman who must now, often, be helped out of a chair” (para. 41). 
She was awarded $55,000, which included an amount to reflect loss of domestic
capacity.

[192]     In the
case of Bansi, the plaintiff was a 37 year old construction manager who
had been injured in two separate accidents.  The plaintiff suffered from mental
and emotional health problems, mood and anxiety, depression, chronic ongoing
back pain, and a significant diminishment in his ability to work.  The lower
back injury was permanent.

[193]     The Court
found that there had been a significant negative impact on the Mr. Bansi’s
lifestyle and quality of life.  Previous to his accidents, he had been an
active and energetic individual.  After the accidents, he rarely participated
in family events and had considerable issues continuing with his duties as a
construction manager.  Physical tasks took much longer, resulting in decreased
productivity.

[194]     Mr. Bansi
was awarded non-pecuniary damages of $75,000.

[195]     After
consideration of all the cases submitted, the cases of Slocombe, and Marois
most helpful in assessing damages in this case.

[196]     In Slocombe,
the plaintiff suffered a similar injury to Ms. Sekihara at a similar age. 
Also like her, he had a previously asymptomatic back injury and had a
professional and recreational life that was characterized by physical
activity.  The injury dramatically affected his ability to pursue his
professional goals and enjoy his life.  I find this also to be the case for Ms. Sekihara.

[197]     In Marois,
the plaintiff similarly suffered chronic back pain and depression that left
her unable to participate in the activities she enjoyed.  It also affected her
ability to care for her young children at the same capacity, which Ms. Sekihara
also struggles with.  I find the trial judge’s words in that case aptly
describe Ms. Sekihara’s situation: her “life was full of interest and joy;
that has been taken from her” (para. 55).

[198]     The cases
cited by the defendants are not as helpful.  The soft tissue injuries suffered
in Masoodi were less severe than Ms. Sekihara’s.  While Morrison
involved a similar injury, and a similarly physically active plaintiff, I
note that the plaintiff in that case was over ten years old than Ms. Sekihara
at the time of injury.  Further, while intense physical activity was a
predominant part of that plaintiff’s recreational life, in Ms. Sekihara’s
case, snowboarding absolutely defined her life: both recreationally and
professionally.  Ms. Sekihara has also been delayed in starting her
family.  She has lost a huge part of her life.  For similar reasons, the
situation in Bansi is not comparable.

[199]     The
defendants submit that Ms. Sekihara failed to mitigate her damages by not
exercising as much as she should have and by not taking counselling or
medication for the depression.  I have dealt with the issues of exercise-induced
pain and the reasons for not taking medication above.  With regard to the
submission that she did not attend counselling, I do not find that she failed
to act reasonably in mitigating her losses in that regard as at the time of the
diagnosis of Dr. Riar, her mood was beginning to improve.  Dr. Tamplin
described her as motivated to recover.  Ms. Sekihara’s nature was to
continue to try to improve her situation independently.  There has been some
success and she will attend counselling in the future if needed.

[200]     Each case
is to be assessed on its particular facts.  Considering all of the
circumstances in this case including Ms. Sekihara’s age, the significant
effects of the injuries sustained in the accident, on her personal as well as
on her professional life, and the opinion that she will have to continue
dealing with the pain on an ongoing basis, I assess non-pecuniary damages at
$130,000.

(ii)            
Past Wage Loss/Past Loss of Opportunity

[201]     It is
submitted by the plaintiff that the claim for past income loss arises from three
sources: the loss of employment income as a result of being laid off from Tadashi
Fuse Snowboarding Ltd., the loss of business income from being unable to
continue acting as agent and sports photographer; and the loss of opportunity
to purchase, renovate and sell real estate.  She seeks damages of $247,750
under this heading.

[202]     The
defendants submit that $25,000 is the appropriate award because Ms. Sekihara
has not had significant financial loss.

[203]     In 2008, Ms. Sekihara
earned $51,000.00 in employment income from Tadashi Fuse Snowboarding Ltd. 
That income declined slightly in 2009 when she took the month of March off to
try to rehabilitate herself.  Ms. Sekihara was laid off from the company
at the beginning of 2010.

[204]     Ms. Sekihara
earned on average $10,000.00 per year in business income as an agent and a
sports photographer.  Because she is unable to snowboard, she has lost her
contacts in the snowboarding industry.  She is also incapable of the physical
requirements of sports photography.

[205]     Ms. Sekihara
testified that she bought, renovated and sold real estate at a profit.  She
assisted her client, Natasza Zurek and her parents to do the same.  It was her
intention to carry on conducting these kinds of activities.  She continued to
monitor the real estate market and made some investment income by purchasing
property through municipal property tax sales.

[206]     As a
result of her injuries, Ms. Sekihara no longer has the physical capabilities
of doing the work required to improve any properties she would purchase and
thereby enhance the profit.

[207]     Ms. Sekihara
sold her Whistler condominium in 2001 at a $60,000.00 profit.  She sold her Sun
Peaks duplex in 2007 and made $305,000.00 profit.

[208]     The loss
is assessed at $120,000 from all sources of income.  In arriving at this amount
I take into account that Tadashi Fuse returned to Japan in 2011 so that job
would have ended at near the time that Ms. Sekihara planned to take time
off to raise a family and pursue income-earning avenues that did not require
her to keep regular hours.

[209]     As Ms. Sekihara
is only entitled to recover her net income loss, I direct counsel to carry out
the necessary calculations, with such expert assistance as may be required, in
order to determine the appropriate net loss.  They may apply if they are unable
to agree.

(iii)          
Loss of Future Earning Capacity

[210]    
In Hildebrand v. Musseau, 2010 BCSC 1022, the factors for
consideration are not set out as follows:

[237]    The court is required to take into consideration all
the factors that arise from the evidence.  In Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353, 35 A.C.W.S. (2d) 96 (S.C.), Mr. Justice Finch (as he
then was) lists the following considerations:

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

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

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

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

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

[211]     On behalf
of the plaintiff, it is submitted that throughout her life Ms. Sekihara
has relied on her ability to work in physically demanding areas (professional
snowboarder, mountain photographer, house renovator) and her ability to work
for extremely long hours (up to 18 hours a day, with the Tadashi Fuse company
as a promoter and/or film maker).  This extraordinary ability and work ethic
translated to financial success far beyond her years.  Her accident-related
injuries have taken away both her ability to perform physical labour and work
for long hours, hence eliminating any job opportunities in employment fields
where she is already established.

[212]     The
defendants submit that Ms. Sekihara still has available to her an ability
to earn income from passive sources such as from rentals and tax sales.  They
also submit that with re-training she has the capacity to earn as much yearly
income in the future from a job such as being a real estate agent.

[213]     Counsel
agreed that the capital asset approach is the appropriate method to assess
damages for loss of future earning capacity.

[214]    
Both Dr. Tamplin and Dr. Hershler are of the opinion that no
further improvement is expected.  Dr. Hershler states:

At this stage, and for the
foreseeable future Yuho is disabled from gainful employment due to the nature
of her injury.  Her particular work involves climbing mountains and traveling
in airplanes, as well as networking, but she is not capable of doing this work
in any gainful manner due to pain.

[215]     These
medical opinions were supported by the findings of Janet Hunt who conducted a
functional capacity evaluation on April 20, 2010.  Ms. Hunt
recognized the physical demands associated with the various jobs Ms. Sekihara
held.  She also states that it appears that Ms. Sekihara was successful
due to other non-physical attributes such as drive to succeed, ability to
identify, create and follow through on business opportunities, ability to
network, and ability to inspire and motivate others.

[216]    
At page 8 of her report, Ms. Hunt concludes that Ms. Sekihara
has physical limitations which have affected her in these ways:

In summary, work capacity
findings support Ms. Sekihara does have physical limitations which have
affected her ability to participate in many of her pre-accident business
ventures to the same level as pre-accident, as well as impacting her ability to
actively pursue business opportunities.  In addition, there appear to be
accident related non-physical factors that have impacted on her ability to
achieve the same level of success.  She continues to be involved in business
with accommodations, available to her as she works independently from home.  In
my opinion, she will be able to continue working within the limitations
outlined in this report, but will not be able to engage in the full range of
business ventures or opportunities that would have previously been available to
her due to a combination of physical and non-physical factors.

Ms. Hunt reviewed more recent medical information
and confirmed that her opinion had not changed in light of that evidence.

[217]    
Mr. Joe Hohmann provided a vocational opinion with regard to the
future employment potential of Ms. Sekihara.  He describes her past income
earning as:

Ms. Sekihara pursued a high energy mix of work and
work-related activity, mostly on a self-employed basis with the exception of
two short-term jobs which she held for less than six months.  Nonetheless, from
her varied pursuits, many of which occurred simultaneously, she was able to
achieve her own financial and other goals, as well as help others (i.e.
athletes) to achieve theirs.

Although she was not employed in a traditional setting, and
although she had no formal qualifications in terms of certifications, diplomas,
or degrees, the type of work activities in which she was engaged would have
spanned all of the skill levels at one time or another (see appendix ill for
skill level definitions).  This means that prior to the referenced accident she
had demonstrated the ability to potentially perform a broad range of
occupations and to tolerate physically demanding work.

She did not feel that she
required formal education to succeed in life.  She functioned according to her
own philosophy that the only barrier preventing her from success was herself. 
Although she indicated that her employment related to the field of snowboarding
was not highly paid, she was nonetheless reportedly able to amass a
considerable net worth through her various entrepreneurial activities.

[218]     It is his
opinion that “given the nature and diversity of her pre-injury employment
activities, her employment potential has been reduced.”  In assessing her
ability to resume her former employment, he states:

I believe that she is only
partially capable of resuming her former employment activities.  There are
parts of each activity that she could do, and other parts that would be
problematic for her.  This is based on the occupational ratings, the medical
information, and the information provided by Ms. Sekihara.  This is
somewhat of a two edged sword insofar as on the one hand, being for the most
part self-employed in her various pursuits, she has some flexibility to adjust
her activities and level of involvement according to her tolerances.  However,
in making accommodations and curtailing her activity, she becomes less
effective in her ventures.  Being self-employed, there is no one else to “pick
up the slack”, and no safety net to ensure that the operation continues to
function smoothly and efficiently.  This in turn will likely have an impact on
her “gross vocational product”, and therefore on her earnings.

[219]    
The plaintiff relies on the cases of Wormell
v. Hagen, 2009 BCSC 1166 and Hildebrand.

[220]    
Wormell offers very similar facts to this case:

Assessing the plaintiff’s claims
for loss of past and future earning capacity is not without difficulty.  The
plaintiff is a non-conventional earner.  Over the years he has had many
different careers and earned income from many different and varied sources.  He
has operated his own companies and worked as a consultant for others.  Much,
but not all, of his work has required physical labour (para. 108).

[221]     In Wormell,
the plaintiff’s primary income at the time of the accident was derived from
buying a principal residence, doing significant renovations to this property,
and reselling it when the market dictated.  Of course, in this line work there
are numerous contingencies.  The judge in Wormell considered: the
effects of the economic downturn on housing prices; variable business
opportunities; and, the effects of the plaintiff’s future treatment.  The
largest positive contingency in Ms. Sekihara’s case is the fact that the
economic downturn had just hit and housing prices were low (creating
opportunity in her line of work).  She was also much younger and more active
than the 50 year old plaintiff in Wormell. In Wormell,
the plaintiff was awarded $300,000.00 in loss of earning capacity.

[222]     In Hildebrand,
the 21 year old male plaintiff sustained injuries including a number of
fractures.  He was off work for eight months and he was left with a partial
permanent disability.  The court took into account the statements in Brown
v. Golaiy
(1985), 26 B.C.L.R. (3d) 353, and agreed that the assessment of loss of earning
capacity is not a mathematical formula.  The court also took into account the
fact that he had returned to the same employment he had prior to the accident. 
This plaintiff was awarded $250,000.00 for loss of earning capacity.

[223]     On the
evidence I find that there is a diminished capacity to earn income and that it
will actually result in a loss of income.

[224]     Although Ms. Sekihara
likely can earn yearly income in an amount similar to her income from the Tadashi
Fuse company from being a real estate agent and other potential avenues of
alternate employment outlined by Mr. Hohmann, Ms. Sekihara’s future
income loss is primarily attributable to the restrictions on her
entrepreneurial enterprises.  She has said:  “There is money to be made
everywhere”.

[225]     It will be
more difficult and less profitable to earn that money.  Although, for example, she
can buy and sell real estate, she will need to hire others to renovate.

[226]    
As stated in Wormell at para. 138:

[138]    Determining Mr. Wormell’s
loss of future earning capacity requires a deep look into a clouded crystal
ball.  That he will suffer such a loss is clear.  The amount of that loss is
much less clear as it is impossible to determine with any degree of certainty
how his future will unfold.  Contingencies include the number of surgeries he
requires, how he recovers from those surgeries, business opportunities which
may present themselves and ongoing economic conditions over which he has no
control.  Taking these various matters into consideration, I assess Mr. Wormell’s
loss of future earning capacity at $300,000.

[227]     I
therefore assess the loss of future capacity to earn income at $215,000.

(iv)          
Loss of Insurability

[228]     The
plaintiff submits that Ms. Sekihara has applied for and been turned down
life insurance coverage from three separate companies.  All three indicated
their decisions were based on information obtained during the insurance medical
examination, although Manulife stated that its decision was influenced by
depression.

[229]     The plaintiff cites the case of Nicolls v. B.C. Cancer Agency,
[1999] B.C.J. No. 1475 (S.C.), paras. 82-89. In that case, the
plaintiff was successful in an action for medical malpractice, and claimed the
sum of $10,000.00 representing a potential of a loss in long-term disability
insurance benefits.  At the time of trial, she was employed in an executive
capacity with a large company and she was entitled to long-term disability
benefits in the event of disablement.  She argued that if she left her current
employment, given her condition as a result of the medical negligence, if she
was insurable at all it would be at a substantially increased rating and
corresponding cost.  Although the court only found one case in which an award
was made in that regard, it did award the plaintiff the sum of $5,000.00.

[230]     Although Ms. Sekihara testified that she had
never been turned down for life insurance prior to the motor vehicle accident,
unlike the Nicolls case, the evidence is incomplete with regard to the
reasons for the denial of coverage.  I cannot conclude that this is a loss
compensable in regards to the accident.  There is no award for loss of
insurability.

(v)            
In Trust

[231]     The plaintiff seeks compensation for approximately five
hours per week of her family member’s time that has been spent taking care of
her needs, particularly driving, which Ms. Sekihara could not do as a
result of the accident.  A reasonable rate is $15 per hour to assist her as she
has been disabled.

[232]     I award $18,300 for the in trust claim taking into
account the application of the evidence to the relevant principles.

(vi)          
Past and Future Loss of Housekeeping

[233]     In the
plaintiff’s claim under this head she relies on the case of McTavish
v. MacGillivary, 2000 BCCA 164.

[234]     That case was recently discussed in the case of
S.R. v. Trasolini, 2013 BCSC 1135.  Madam Justice Ballance reviews the
principles of claims for loss of housekeeping and states:

[237]    In McTavish, Huddart J.A. comprehensively
surveyed the majority and minority decisions in Kroeker, as well as
other pertinent authorities, and summarized the essential principles in
relation to past and future loss of capacity claims.  At para. 43, her
Ladyship emphasized the important point that claims for loss of housekeeping
capacity are distinct from claims respecting the plaintiff’s future cost of
care:

As I have noted, the majority in Kroeker quite
clearly decided that a reasonable award for the loss of the capacity to do
housework was appropriate whether that loss occurred before or after trial.  It
was, in my view, equally clear that it mattered not whether replacement
services had been or would be hired.  It did not adopt the analogy with future
care as a general rule.  Nor did it permit, nor in view of the authorities to
which I have referred could it have permitted, a deduction for the contingency
that replacement services might not be hired.  Allowances for contingencies are
for risk factors that might make the loss of capacity more or less likely.

[238]    Because an award for the loss of housekeeping
capacity reflects the loss of personal capacity, which is an asset, the issue
of whether the plaintiff had used replacement services or is likely to hire
such assistance in the future does not inform the analysis.  That distinguishes
those damages from future cost of care awards as recently affirmed by Kirkpatrick
J.A. in O’Connell v. Yung, 2012 BCCA 57 at para. 67:

…Damages for the cost of future care serve a different
purpose from awards for loss of housekeeping capacity.  Unlike loss of
housekeeping capacity awards, damages for the cost of future care are directly
related to the expenses that may reasonably be expected to be required (Krangle
at para. 22).  Determining the amount of a reasonable cost of future care
award entails a unique set of considerations, as Professor Cooper-Stephenson
explains at 416:

It is clear that both the need and the opportunity
for the expenditure of moneys is relevant to the assessment.  Therefore, if the
plaintiff’s medical condition may require care of a less expensive nature—such
as institutional care—then the award for future cost of care should reflect
that possibility.  Equally, it would seem, if the evidence is not conclusive
that more expensive care will be available, or that the plaintiff will find
such care to be physically and emotionally satisfactory, then the award should
reflect those possibilities; the reduced award will then reflect the best
estimate of what will be reasonably necessary to provide optimum care.  In this
sense, the court is bound to look to the actual spending potential of the
plaintiff.

[235]     Ms. Sekihara and Mr. Murphy have unusual
living arrangements involving renters in their home.  Mr. Murphy confirmed
in his evidence that before the accident, Ms. Sekihara did the majority of
home maintenance and housekeeping.  Mr. Murphy now does approximately 10
hours per week of this work.  Ms. Sekihara testified that she will
periodically ask her renters to assist.  It is clear from the evidence that she
is no longer able to, and will not be able to, do the heavier household work. 
Since the accident she has suffered an impairment of her housekeeping capacity.

[236]     The claim for past loss of housekeeping is for
$14,640.  The claim for future loss of housekeeping is based on an assumption
that 3 hours per week of housekeeping by others will need to be done as a result
of Ms. Sekihara’s inability to do so at $20.00 per hour.  Mr. Benning’s
report quantifies the future loss of housekeeping claim at $72,053.30.

[237]     As an award for the loss of housekeeping capacity is
compensation for an asset, it is an assessment and not a mathematical
calculation.  On the basis of the evidence including the relevant
contingencies, I conclude that the amount of $45,000 is the appropriate award.

(vii)         
Cost of Future Care

[238]    
The law with regard to the cost of
future care is also set out in the case of S.R. v. Trasolini.  Madam
Justice Ballance states:

[222]    The purpose of damages for the cost of future care
is to compensate for a financial loss reasonably incurred to sustain or promote
the mental and/or physical health of an injured plaintiff: Gignac at
para. 30.  The services and items must be justified as reasonable in the
sense of being medically required or justified, and in the sense that the
plaintiff will be likely to incur them based on the evidence: Milina; Izony
v. Weidlich, 2006 BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.

[223]    Recommendations made by
a medical doctor or made by various other health care professionals are
relevant in determining whether an item or service is medically justified: Gregory
at para. 38.  An evidentiary link between the medical assessments and the
recommended treatment is essential: Gregory at para. 39; Gignac
at paras. 31-32.  General contingencies and those specific to the
plaintiff are to be taken into account where appropriate: Gignac at para. 52.

[239]     In her report of September 29, 2011, Janet Hunt
identified care requirements suggested by both herself and other medical
professionals.  I find those recommendations to be medically justified on the
evidence.

[240]     In particular, the cost of a gym pass and personal
trainer is a justified expense because exercise and core strengthening are
fundamental to Ms. Sekihara’s ongoing treatment.  Although these are
expenses often incurred in the normal course, Ms. Sekihara’s previous
normal routine was to be outdoors or on the mountain.  The gym is a substitute
and the personal trainer will assist to refocus her on rehabilitation rather
than on strength training for competition.

[241]     The costs for psychological counselling, physiotherapy
and occupational therapy are also allowed.  Similarly ergonomic equipment for
office work and childcare is justified.

[242]     With regard to childcare, on the evidence I prefer the
first scenario with babysitting assistance rather than the full-time nanny
which Ms. Hunt referred to as Scenario #2 in the case of significantly
increased symptoms.  Although many families with young children employ
babysitters, Ms. Sekihara requires this assistance as a result of the pain
incurred with lifting her child.  It is also understood that she hopes to have
more children, and caring for them will be more difficult with her ongoing back
pain.

[243]     Ms. Hunt’s
recommendations were quantified by Darren Benning, an economist, at $91,179. 
There is an award for the cost of future care in that amount.

(viii)       
Special Damages

[244]     The
plaintiff submitted a list of Special Damages along with supporting receipts in
the amount of $11,000.41.

[245]     The defendants
take issue only with the costs of counselling ($475), a mattress ($1612.79) and
car repairs ($4313.09).

[246]     The
counselling was a course which was paid for by Ms. Sekihara’s friend, Ms. Zurek. 
There is insufficient evidence to establish allowance of either the mattress or
the car repairs.  The special damages claimed will be reduced by these amounts.

[247]     The amount
awarded for special damages is $4,599.53.

SUMMARY

[248]    
There is therefore an award of
damages to Ms. Sekihara in the amount of $624,078.53 calculated as
follows:

[249]     I have
reviewed the total amount of the various awards and am satisfied that it is
reasonable in the circumstances.

[250]     With
regard to the matter of costs, unless there are matters of which I am not
aware, my conclusion is that Ms. Sekihara is entitled to her costs.  If
either side seeks a different cost result they should make submissions in
writing within 21 days.  Any responsive submissions should be filed within 15
days thereafter.