IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130812

M59087

Registry:
Nanaimo

Between:

Misty
Dorosh

Plaintiff

And:

Jason
John and Florence John

Defendants

Before:
The Honourable Madam Justice J. A. Power

Reasons for Judgment

[1]
The plaintiff is a 35-year-old woman who seeks damages for injuries and
loss sustained in a motor vehicle accident.  The accident took place on March
11, 2008 in Nanaimo, British Columbia, when the plaintiff was 30 years of age.

[2]
Liability for the accident is admitted.  At issue is the extent of the
plaintiff’s injuries and the amount of damages that should be awarded for
them.  The plaintiff seeks substantial sums including a large claim for future
income loss and future cost of care.

[3]
The defendants do not deny that the plaintiff was injured but argue that
the plaintiff’s evidence must be viewed with caution and that the expert
evidence in support of her claim must be carefully considered and weighed by
the court.  The defendants argue that the evidence supports a much more modest
award.

BACKGROUND

The Accident

[4]
The only evidence about the accident came from the plaintiff Ms. Dorosh
since the defendants did not testify.

[5]
The accident occurred on March 11, 2008 at approximately 2:45 p.m.  Ms. Dorosh
was driving westbound on Albert Street in Nanaimo, B.C. at a speed of 40 to 45
km per hour.  She intended to go to a market on Albert Street before taking the
ferry home to Gabriola Island to pick up her daughter Grace who was 8 years old
at the time.

[6]
She was proceeding up the hill on Albert Street when a vehicle driven by
the male defendant southbound on Selby Street approached her vehicle on the
right hand side and struck the passenger side of her vehicle.  There was a stop
sign at Selby for the defendants’ vehicle at that intersection and the manner
in which the accident occurred suggests that the defendants’ vehicle went
through that stop sign. However, there is no conclusive evidence on that point
since Ms. Dorosh was struck when she was not expecting it, and had not seen the
defendants’ vehicle until the last minute.  Ms. Dorosh was wearing her seatbelt
at the time the accident.

[7]
The impact was surprising to Ms. Dorosh and It felt like her vehicle
spun several times.  There was significant damage to her vehicle and it was
eventually written off for insurance purposes.  There was significant damage to
the defendants’ vehicle as well.

[8]
Ms. Dorosh pulled her vehicle over to the side of the road out of
traffic and was able to get out of the vehicle.  Her legs were weak and shaky.
She sat down.  The defendant driver and passenger approached and the defendant
driver indicated to Ms. Dorosh that the sun was in his eyes.

[9]
Defence suggests in argument that I should take judicial notice of the
fact that the sun could not have been in the defendant’s eyes based on
direction of travel of the defendant and that this somehow affects Ms. Dorosh’s
credibility generally at trial.  I do not accept that submission.  The
defendant was not called at trial and there is no evidence to challenge Ms.
Dorosh on this point.  I will not take judicial notice of the sunset and what
effect the sun may have had on the cause of the accident.  In any event
liability is admitted and I do not consider Ms. Dorosh’s evidence about what
the defendant driver may have said to be of significance to this decision.

[10]
Defence also argues that Ms. Dorosh’s vehicle did not spin and she
exaggerated her evidence on this point particularly to the medical experts.
Again, I do not accept that submission.  There is no evidence before me as to
whether Ms. Dorosh’s car actually spun and at trial Ms. Dorosh testified
that it felt like her vehicle spun.  It is not surprising that given the nature
of the impact Ms. Dorosh would not remember all of the details immediately
post-accident.  In any event, one of the medical experts, Dr. Lynne MacKean,
indicated that it would not make a difference to her evidence whether or not
the vehicle in fact spun.

[11]
In summary, it is clear that this was a collision of some significance
which resulted in significant vehicle damage.  That of course, does not end the
inquiry into the nature of the injury suffered by Ms. Dorosh in order to
determine the appropriate compensation for it, since it is clear that even
minor impacts can result in significant injuries and significant impacts can
result in minor or no injury.

PERSONAL CIRCUMSTANCES

[12]
At the time of the accident Ms. Dorosh had overcome some difficult
personal circumstances earlier in her life.  She left the regular school system
in Grade 10 and when she was 16 or 17 years old she took a chef training course
in the Culinary Arts Department of Malaspina College.  She dropped out of the
course within a few weeks of conclusion and decided not to be a chef.

[13]
She became involved in a bad relationship and made some poor choices.
She became addicted to heroin and cocaine from the ages of 19 to 23.  She
became pregnant with her daughter Grace and managed to extricate herself from
the relationship and the drug dependency.  She has been clean and sober for
over 11 years.

[14]
Ms. Dorosh next took a two-year course as a legal assistant but never
worked as a legal assistant.  Between 2006 and 2007 Ms. Dorosh was attending
Vancouver Island University in order to upgrade her education with a view to
eventually becoming a Registered Nurse (RN) or a Social Worker.

[15]
At the time of the accident the plaintiff was working as a coffee
barista in a small café called Raspberry’s on Gabriola Island.  In light of
difficulties in performing that position post-accident the plaintiff ultimately
left that position, and retrained as a Licensed Practical Nurse (LPN).

[16]
At the time of the accident Ms. Dorosh was living and continues to live
with her daughter Grace on a large family property on Gabriola Island.  She is
responsible for the garden and other household chores including chopping wood
although she testified she has had trouble performing those chores as a result
of the accident.

[17]
She had some pre-existing health problems including endometriosis,
irritable bowel syndrome, diverticulitis and depression and anxiety.

[18]
David Soy, a family friend, who has known Ms. Dorosh for eight years,
described Ms. Dorosh as upbeat, vivacious, easy to love and a caring person
with an extremely positive work ethic.  He encouraged her to pursue her
education, not just as an LPN but as a Medical Doctor.  He saw that potential
in her.  He described Ms. Dorosh as very much affected by the accident and “not
as lively as she had been”.  He said that post-accident she takes things easier
and needs more sleep.  He thought the house was kept tidy when he visited.  He
indicated that some of the changes he has noticed in Ms. Dorosh could be
attributable to age and personal growth.

[19]
Ms. McNeil also testified.  She has known Ms. Dorosh since 2005 and
described herself as a mentor/ mother figure to Ms. Dorosh.  She noticed that
Ms. Dorosh was not as bright, outgoing and she had been before the
accident and that she was running at “three quarters capacity”.

[20]
Mr. Soy and Ms. McNeil acknowledged that Ms. Dorosh had some challenges
in raising her daughter Grace who is now a teenager.

The Medical Evidence and Capacity Reports

[21]
Ms. Dorosh first attended for medical attention for injuries suffered on
March 13, 2008.  Her general physician Dr. Roe works in a clinic setting
and she was first seen by another physician in the clinic.  Dr. Roe testified
at trial and provided two reports dated July 18, 2011 and July 30, 2012.  He
had clinical records which go back to 1995 and was cross-examined on those
records.

[22]
Dr. Roe first saw Ms. Dorosh on March 26, 2008 with regard to her
injuries.  In his report dated July 18, 2011 he stated:

I first saw her on March 26, 2008 with regard to the injuries
from the accident of March 11, 2008.  She reported that her neck and entire
back were sore since her motor vehicle accident with occipital and bitemporal
headaches daily.  She was working at a restaurant and needed to continue to do
so for financial reasons but found it difficult.  Examination of her neck showed
reduced range of movement with diminished flexion and extension and rotation to
the left.  Her lower back showed decreased forward flexion and extension with
wide-spread tenderness over her neck and upper and lower back.

These are typical soft tissue injury
symptoms from a motor vehicle accident.  She was referred to physiotherapy,
given a prescription for a muscle relaxant – methocarbamol 400 mg, 1-2 at
bedtime.  She was asked to use ibuprofen +/- Tylenol 1000 mg three times a day.

[23]
His impression is stated as follows in the July 18, 2011 report:

My impression is that she has
persisting soft tissue right shoulder girdle pain.  I do not believe there is
any underlying injury otherwise because an x-ray and ultrasound of her right
shoulder, done in Parksville on July 9, 2008, was normal.  Another right
shoulder x-ray was done August 27, 2008, which was normal.  An MRI of her right
shoulder was done on September 23, 2008, which was normal with the exception of
some fluid in the subacromial bursa, which is nonspecific but consistent with
bursitis.  An arthrogram of her right shoulder, done December 17, 2008, was
normal.  The MRI and the arthrogram were ordered by Dr. William Malone, an
Orthopedic Surgeon who saw Misty regarding her right shoulder.

[24]
Although Ms. Dorosh had previously complained of shoulder pain Dr. Roe
stated:

Since March 5, 2002 until the
motor vehicle accident of March 11, 2008, there were no further reported
symptoms regarding her neck, upper back or right shoulder.

[25]
In his opinion about general disability Dr. Roe said this:

The patient reports that her symptoms limit her ability to
bicycle, play baseball, ski, canoe, run, chop wood or wash her windows. Despite
this, she has done very well with her life, in pursuing and attaining an LPN
certification and being a successful single mother of now an approximately 12
year old daughter.  She reports that her symptoms have plateaued for the last
year.  I cannot say when they will settle.

My opinion is that the long-term
probability of complete recovery from this soft tissue injury is good.  I
cannot say, though, how long it will take.  I don’t believe there will be any
permanent sequelae from these injuries.

[26]
Dr. Roe provided an updated medical report dated July 30, 2012.  The
second report is based on his medical record and appears to consist of an
updated based on the reported symptoms of Ms. Dorosh.  In summing up Dr. Roe
stated:

She has told me that regular
massage reduces her need to use anti-inflammatories and Tramacet, but does not
result in any lasting improvement in her right shoulder girdle or headache pain
pattern.  She has persisting right shoulder girdle soft tissue pain which does
not appear to have changed significantly since the last medical legal report.
She continues to have significant frequency and duration of headaches that
again appear to be not significantly changed from July 2011.

[27]
On July 20, 2009, Dr. Roe wrote a letter for Ms. Dorosh indicating that
she would be employable as an LPN.  The letter was required in order to obtain
the financial support of the Employment Assistance Program.  At trial, Dr. Roe
testified that he discussed her future hopes to become an LPN and he did not
express any concerns to her that she would not be physically able to do the
tasks of an LPN.

[28]
Ms. Dorosh was sent on defence’s request for an independent medical
examination to Dr. Alan Richardson an Orthopedic Surgeon.  Ms. Dorosh was seen
on August 2, 2012 by Dr. Richardson.  The defence did not seek to tender the
report at trial and ultimately, after argument, it was tendered by the plaintiff.

[29]
In his report, Dr. Richardson summarized Ms. Dorosh’s history as
follows:

Ms. Misty Dorosh presents with a distant history of neck and
right shoulder problems with no intervening symptoms between 2002 and 2008.

The only pre-existent condition was the presence of an
anatomical variant of normal noted as a type 2 acromion that is an acromion
with a mild anterior curve found on MRI.

On March 11, 2008, Ms. Dorosh was involved in a motor vehicle
accident subsequent to which she developed symptoms in her neck, upper and
lower back, as well as the right shoulder.

The symptoms in the low back
initially improved, but then recurred for unknown reason in 2010.

[30]
Dr. Richardson outlined his prognosis as follows:

Ms. Dorosh has:

 i.          Chronic
myofascial pain in the cervical spine, the causation             and prognosis
is listed above.

 ii.         Recurrent
acute low back pain of unknown etiology.

 iii.         Right
shoulder rotator cuff impingement/bursitis/tendonitis.

She has ongoing symptoms in the right shoulder and the neck
as a result of:

 i.          The
original soft tissue injury.

 ii.         Aggravation by the
activities of daily living.

[31]
He stated further:

…Ms. Dorosh is not maximally medically improved with regard
to her right shoulder.

With regard to Ms. Dorosh’s present and future ability to
work, in my opinion Ms. Dorosh would probably not be suitable for repetitive
activity particularly with the right hand at or above shoulder level.

With respect to surgical treatment, this is a possibility and
not a probability.  Ms. Dorosh is not an ideal candidate for surgical treatment
because of her chronic myofascial pain in her right parascapular and trapezius
muscles.  Any surgical treatment performed would be done knowing that these
symptoms will persist.

However, given that Ms. Dorosh had no specific injection in
the subacromial bursa with Depo-Medrol and a long acting anaesthetic that
certainly could be done to see if it provides some relief and information with
regard to the actual source of her symptoms in the right shoulder joint itself.

Therefore, further consultation
with an operating orthopedic shoulder specialist would be recommended prior to
proceeding with any further treatment, invasive or otherwise.

[32]
The defence argues that Dr. Richardson’s report should be given little
or no weight since the defence argues that it is based on inaccurate or
incomplete information.  I am of the view that Dr. Richardson’s report is
entitled to weight and the issues pointed to by the defence such as Ms.
Dorosh’s reports of the vehicle spinning are in my view not significant to Dr.
Richardson’s ultimate opinion.  I do however consider it important that Dr.
Richardson opines that Ms. Dorosh has not reached maximum medical improvement.

[33]
Dr. Lynne MacKean, a specialist in Physical Medicine and Rehabilitation,
provided another independent medical examination.  Dr. MacKean examined Ms. Dorosh
on February 23, 2012.  She did not notice any “evidence of exaggerated pain
behaviour”.

[34]
In her report Dr. MacKean provided her impression as follows:

This young woman sustained soft
tissue injuries involving the right shoulder girdle region with chronic
myofascial pain involving the right shoulder girdle region, right upper arm,
and right side of the neck.

[35]
Dr. MacKean states further:

It has been almost 4 years following the date of the motor
vehicle accident that occurred on March 11th, 2008.  It is unlikely that she
will see further significant improvement and she has most likely reached the
point of maximal medical improvement.  She will probably be left with chronic
right shoulder girdle pain into the indefinite future.

She is able to work on a
part-time basis as an LPN at a long-term care facility with patients with
dementia and she can continue with that type of work.  I do not think she would
be able to increase her work hours or do more physically demanding work which
would require use of her right shoulder and arm for reaching, lifting or
carrying activities.

[36]
Dr. MacKean includes a recommendation that the plaintiff attend at the
Nanaimo Pain Clinic and testified at trial that if she attended the Pain Clinic
she would have less pain and better function.  The plaintiff has not attended
the pain clinic.

[37]
Both the plaintiff and defendant provided Functional Capacity
Evaluations.  Mark Swain testified for the plaintiff and provided a report
based on assessment on July 5 and 6, 2012.

[38]
In his report,  Mr. Swain summarized Ms. Dorosh’s work tolerance summary
as:

Based on the results of the
Functional Ability Evaluation, Ms. Dorosh’s current physical abilities are in
the Sedentary strength category as defined by the Dictionary of Occupational
Titles.

[39]
In discussing the reliability of her pain reporting and abilities,  Mr.
Swain said this:

When comparing this clients [sic] neck and right shoulder FPS
ratings against her demonstrated abilities during the functional testing
activities including the repeated tests in the Baseline/Repeat tests, the
reported intensity of pain and the corresponding functional impact was
significantly greater than what was observed (i.e. the client was able to
participate and complete assigned tests versus “unable to complete” a test [FPS
= 5/10] or “cannot use or move the painful area” [FPS = 7/10]).  Having stated
this, it does not imply intent nor is it intended to discount or dismiss Ms.
Dorosh’s pain reporting’s [sic].  Throughout the FCE, Ms. Dorosh did appear
functional [sic] limited by her pain, but was not incapacitated or unable to participate.
Furthermore, when the client was asked to continue or repeat testing, she was
willing and able.

The remaining test findings, in
combination with clinical observations (i.e. non-organic testing, ROM
consistency, objective signs of pain) suggest that symptom magnification is not
dominating this client’s subjective symptom presentation.  The consistency of
Ms. Dorosh’s overall presentation between the two days of testing suggests that
she is consistent and reliable in her perception and reporting of her
subjective symptoms and functional abilities.

[40]
Ralph Cheesman, an occupational therapist, provided a report and
testified on behalf of the defence.  The purpose of his report and evidence was
to comment on the functional capacity report and evaluation of Mr. Swain.  He
did not interview or assess Ms. Dorosh in any way and prepared his report based
on the Functional Capacity Evaluation of Mr. Swain, the Medical Report of Dr.
MacKean and the Medical Report of Dr. Roe dated July 18, 2011, along with Dr. Roe’s
clinical records.

[41]
At p. 10 of his report dated September 25, 2012, Mr. Cheesman states:

…Globally, in my opinion, the
FCE process has illuminated that Ms. Dorosh is not reliable in reporting the
level of disability she incurs from symptom reactivity.  While she may have
some limiting factors related to her pain they certainly, in my opinion, are
not at the limiting levels Ms. Dorosh reports.

[42]
He says further:

As indicated above I am of the
opinion that the multiple indicators of low efforts and inaccurate perceptions
of the limiting effects of Ms. Dorosh’s pain place into question the utility of
the FCE results in illustrating her present functional capacities.

[43]
The defence argues that I should consider the words of McEachern
C.J.S.C. in Price v. Kostryba, [1982] B.C.J. No. 1518 at paras. 6 and 7
that the court should be cautious where complaints of injury extend beyond the
normal range of recovery and where there is little or no objective evidence in
injury.

[44]
However, in this case I am satisfied overall by the plaintiff’s evidence
concerning her injury and pain and am of the view that there is objective
medical evidence which supports it.

[45]
Having considered all of the medical evidence I accept the plaintiff’s
submission that Ms. Dorosh has sustained soft tissue injuries to her neck, back
and right shoulder with the shoulder injury being the most significant ongoing
injury.  According to Dr. Richardson, the prognosis to the neck and spine is
moderate and the prognosis in respect of the shoulder is guarded.  Ms. Dorosh
also suffers from headaches.

[46]
I am of the view that any pre-existing shoulder injury was substantially
or completely resolved at the time of the accident and she had not complained
of it since 2002.

[47]
Although it was raised in argument that Ms. Dorosh has failed to
mitigate her loss, I am not satisfied on the evidence that is the case.  I turn
now to an assessment of damages for the injuries sustained.

NON-PECUNIARY DAMAGES

[48]
In Stapley v. Hejslet, 2006 BCCA 34 the court provided a helpful
reminder of the underlying purpose of non-pecuniary damages and noted 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 added.]

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[49]
In this case the plaintiff cited Coutu v. Rowe, 1996 Carswell
B.C. 1696; Milliken v. Rowe, 2011 BCSC 1458 and Dyke v. Nanaimo
Paving, 2007 BCSC 455 and seeks $90,000 in non-pecuniary damages.

[50]
The defence argues that the court should impose an award in the range of
$50,000 to $60,000.  The defence points to a number of authorities including Redl
v. Sellin, 2013 BCSC 518; Cripps v. Overend, 2010 BCSC 1779; Rozendaal
v. Landingin, 2013 BCSC 24; Skusek v. Horning, 2009 BCSC 893; Strazza
v. Ryder, 2012 BCSC 1693; and Warner v. Cousins, 2012 BCSC 1737.

[51]
Considering the factors outlined in Stapley I note the following.

[52]
The plaintiff is now 35 years old and has been suffering as a result of
the injury for five years.  After her early difficulties including substance
abuse and addiction, she had succeeded in turning her life around and was poised
to reach her maximum personal potential when the accident occurred.

[53]
Her soft tissue injuries particularly to her right shoulder have left
her in chronic pain and her prognosis is guarded.

[54]
She was vulnerable because of her medical history including a previous
history of depression, irritable bowel syndrome and endometriosis.  As a result
of the accident, she has suffered impairment of her relationships particularly
with her young daughter Grace who was eight at the time of the accident and who
is now 13.  I accept Ms. Dorosh’s evidence that she was unable to fully focus
on her relationship with Grace in large part because of her pain from the
accident combined with her need to upgrade and retrain for employment.  These
years post-accident were critical years for the development of that
relationship and to prepare Ms. Dorosh for the challenges of raising a
teenager.

[55]
Considering all of the circumstances in this case, and having considered
the cases cited, I am of the view that the plaintiff’s claim for $90,000 is a
reasonable one, and I award $90,000 under this head of damage.

EMPLOYMENT HISTORY

[56]
Although Ms. Dorosh has substantially completed a chef’s training
course, and completed a two-year legal assistant course, she had never worked
as a chef or a legal assistant.  In the past she has worked in miscellaneous
positions such as at Subway fast food restaurant, as a chambermaid, as a
landscaper and in a clothing store.

[57]
At the time of the accident Ms. Dorosh was employed as a barista at
Raspberry’s Jazz Café on Gabriola Island, B.C.  Her hours were variable in that
position, and she tended to work more in the summer than in the winter.  She
worked 20 to 40 hours per week in the winter and 40 hours a week or even more
in the summer.  She was paid $8.00 per hour plus she received some tips.

[58]
After the accident Ms. Dorosh continued to work at Raspberry’s but in a
reduced capacity. She could no longer fulfill some of the repetitive tasks
including with the espresso machine and other heavier duties including stocking
shelves, cleaning and sweeping.  In a reduced capacity she would take orders
and work the cash register.

[59]
Mr. Christie, the owner of Raspberry’s Café testified at trial and
indicated that he did not notice any limitations prior to the accident, but
after the accident Ms. Dorosh was able to do “so much less”.

[60]
Ms. Dorosh left her job at Raspberry’s at the end of August 2008 due to
her injuries.  She went on medical Employment Insurance benefits for 15 weeks
and then remained off work from January until September 2009.

[61]
On July 20, 2009 Dr. Roe wrote a letter in support of her retraining
claim which included the following:

…She had a rotator cuff injury.  This continues to cause her
symptoms and limits her activities.  She describes a specific series of
movements peculiar to her work as a Barista having to twist a levered arm on
and off an expresso machine repeatedly through the day.  This specific activity
is something that she is unable to do with her right arm with her injury the
way it is.  She is a right-handed person.  She reports that she can do almost
anything she needs to with her right arm on a one off basis but cannot do this
specific activity on a repeated basis, hour after hour, day after day.

For the above reason, she could
not be employable in this specific occupation as a Barista but would be
employable in her hoped-for future endeavors as an LPN.

[62]
Ms. Dorosh began the Practical Nursing Program at Vancouver Island
University in Nanaimo, B.C. in September 2009.  She obtained a certificate in
Practical Nursing on September 3, 2010.  She was able to fulfill the course
requirements including a preceptorship throughout the program.

[63]
After her LPN certification, Ms. Dorosh obtained employment as a casual
LPN at the Nanaimo Travellers Lodge, a long term care facility, in November
2010.  Dr. Roe signed a document for a the Nanaimo Travellers Lodge dated
October 29, 2010 that stated:

The person named above is
physically and mentally able to carry out the duties of a LPN or RCA.

[64]
Ms. Dorosh worked on an on-call basis at Nanaimo Travellers Lodge and
continues to work there at the time of trial.  She gave evidence that she is
physically unable to complete a 12-hour shift and has modified the way she
performs her duties in order to cope with her employment for example she
distributes medications from a tray rather than push a medical cart.  She works
mainly with dementia patients and works on average three days per week.

[65]
Ms. Dorosh also obtained employment as an Emergency Unit Aide at Nanaimo
Regional Hospital on March 1, 2011.  She did so because it was slow at the
Travellers Lodge during that period and she was not getting called in.  However
after performing a few shifts, it became apparent to Ms. Dorosh that position
was too demanding and she has not accepted shifts there for some time.

[66]
In September 2011 Ms. Dorosh obtained a term position with benefits at
the Nanaimo Travellers Lodge.  That position was for September through December
2011.  This position was four nights on and four off.  Ms. Dorosh testified
that the duties were somewhat lighter because the position was a night position
which is why she was able to complete four days per week.  It appears from the
evidence that she was able to perform that four day position without missing
any shifts.

[67]
During 2012 and up to trial, Ms. Dorosh worked an average of three
shifts per week on call at the Nanaimo Travellers Lodge.  Ms. Dorosh did not
call anyone from the Nanaimo Travellers Lodge at trial to support her evidence
that she was unable to work more than three days per week.

[68]
Ms. Dorosh’s income tax returns show that she earned $5,155 in 2007;
$5,952 in 2008; $14,150 in 2009; $17,670.42 in 2010; $25,205.09 in 2011; and
$18,030 in 2012.

[69]
I turn now to an assessment of income loss based on this background.

PAST INCOME LOSS

[70]
In assessing damages under this head I must quantify them in an amount
of the wages or salary that Ms. Dorosh would have earned if she had not
sustained the injuries in the accident.  The overall fairness and reasonableness
of the award must be considered taking into account all of the evidence (see Rosvold
v. Dunlop, 2001 BCCA 1).  The task is to “… assess damages not calculate
them on some mathematical formula” (Mulholland (Guardian ad litem of) v.
Riley Estate, (1995), 12 B.C.L.R. (3d) 248 at para. 43).

[71]
The plaintiff submits that Past Income Loss should be assessed at
$50,000 based on the Report of the Economist, Mr. Carson, and the evidence of
Ms. Dorosh combined with the medical evidence of Dr. MacKean.

[72]
The defendants dispute the past wage loss amount, argue that there is no
continuing disability past 2009 and argue that I should impose a sum of $6,720 —
primarily representing sums before the LPN training.

[73]
In my view, the assessment of income loss both past and future is
difficult in this case because of the plaintiff’s sporadic employment history
and difficult background prior to the accident, and the fact that she chose to
retrain as an LPN and obtained Dr. Roe’s support to do so based on an
optimistic assessment of her health post-accident.

[74]
Considering all of the evidence, I am satisfied on the balance of
probabilities that Ms. Dorosh has suffered a disability as a result of the
accident which has resulted in some past income loss.

[75]
In my view there are a number of factors that make it inappropriate to
assess damages under this head by calculating them based on a loss of
employment of two days per week based on an inability of Ms. Dorosh to fulfill
the duties of an LPN.  I am not satisfied on the evidence that the sole reason
Ms. Dorosh has worked on average three days per week is related to the
accident.

[76]
Additional factors I have considered include the following:

• Ms. Dorosh is a
single parent responsible for spirited daughter who is now entering her teenage
years.  She required time to care for her daughter and accepted or declined
employment based on her childcare responsibilities.

• Ms. Dorosh only
averaged part time work prior to the accident and is currently earning three
times her earnings before the accident.

• Ms. Dorosh’s
employment at Raspberry’s café was dependent on business and there was more
work available in the summer months.

• Ms. Dorosh’s
employment in Nanaimo requires her to take a ferry from Gabriola Island which
can be unpredictable.  I am of the view that Ms. Dorosh has considered the
ferry schedule in her decision to take a shift and has at times refused shifts
because of the ferry schedule.

• Ferry travel adds
between 2 – 3 hours to a work day.  It is merely common sense to conclude that
such a commute is tiring and impacts on Ms. Dorosh’s decision to take a
shift.

• Mr. Carson’s
calculations assume that full-time work would have been available and it is
clear from Ms. Dorosh’s own evidence that such work was not always available.
For example in the Spring of 2011 call work at Nanaimo Traveller’s Lodge was
very slow.

• On completion of the
LPN Ms. Dorosh suffered a foot injury unrelated to the accident, and went on a
vacation to Cuba.

[77]
In summary, I am not satisfied on the evidence that the only reason that
Ms. Dorosh works three days per week on average relates to her injuries
from the accident.  There are many other factors present that influence her
decision to accept or decline on-call work.

[78]
Having considered all of the evidence I am of the view that damages for
past income loss should be assessed based on a net income loss as follows:

FUTURE INCOME LOSS

[79]
The plaintiff in this case seeks a substantial sum of $350,000 based on
an earnings approach based on a loss of two days per week as an LPN until the
age of 65.

[80]
The defence argues that the plaintiff has not proved any disability or
future loss of income; and in the alternative argues that pre-existing medical
conditions may have limited her future work capability and in the further
alternative she has not reached her maximum medical improvement.  The defence
argues that if the court is satisfied that there is some future loss of
capacity to earn income it is submitted that this loss should be assessed based
on the capital asset approach and should be limited to a range of $40,000 to
$50,000.

[81]
In Perren v. Lalari, 2010 BCCA 140 after a discussion of the
caselaw, the Court set out the two approaches to the assessment of future loss
of earnings capacity as follows:

[32]      A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.  If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.  The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok.  The latter approach
will be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych.  A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment.  That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.  [emphasis in original]

[82]
Although much was made in argument about the Functional Capacity
Evaluation and the concern that Ms. Dorosh was exaggerating her pain response
to Mr. Swain’s testing, I am of the view that both reports are of limited
assistance in this case.  I accept the defence argument that the best
assessment of the plaintiff’s ability should be based on her demonstrated
abilities both pre and post-accident.  I have considered that she completed a
demanding program as an LPN and worked in a permanent position four days per
week in 2011, albeit with some pain, so she has a demonstrated ability to work
more than three days per week post-accident.

[83]
In any event, I am of the view that the plaintiff cannot have it both
ways; that is, retrain after the accident in a position as an LPN with the
medical support of her general practitioner and then claim that she is
incapable of fulfilling that employment more than three days per week.  At some
point, if she cannot tolerate full-time work in the occupation she retrained
in, it is incumbent on her to retrain again.

[84]
As I have stated, I am of the view that there are many reasons why Ms. Dorosh
has limited her employment to three days per week and those reasons do not all
relate to the accident.  She was forthright in her evidence about the
considerations that brings to mind in determining whether to accept an on-call
shift which I have previously outlined at para. 76.  I am of the view that the
loss in this case is not easily measurable and that therefore the capital asset
approach is the correct approach in this case.

[85]
In assessing damages on the capital asset approach I must consider the
factors outlined in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353:

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 income in a competitive labour
market.

[86]
Overall I accept based on all of the evidence that Ms. Dorosh may not be
fully capable of fulfilling a highly physical LPN position and she has managed
to modify her existing position to accommodate her chronic pain including by
working nights on occasion which are less demanding.  However, she has shown
herself to be a resilient person who has been able to continue to work through
her pain on many occasions.

[87]
In considering the Brown factors, taking a common sense approach,
I am of the view that a plaintiff such as Ms. Dorosh, who is suffering from
chronic pain and modifies her duties in order to function in her employment is
rendered less capable overall from earning income from all types of
employment.  Ms. Dorosh’s prognosis with respect to her shoulder is guarded and
even though she may not have reached maximum medical improvement, and she has
not pursued treatment at the Nanaimo pain clinic, I conclude that the injury
will likely impact the balance of her working life.  I conclude, for example,
that she may require more sick days which may make her less reliable or
desirable as an employee unless she has an understanding employer.

[88]
I am of the view that Ms. Dorosh is rendered less marketable or
attractive as an employee as a result of injuries suffered in the accident.
Further based on the

evidence before me in this trial, it is reasonable to assume
that she would have to disclose her limitations if she applied for other
positions as an LPN and she may have lost the ability to take advantage of all
job opportunities in that field or in other fields.  I am of the view that some
job opportunities are now closed to Ms. Dorosh as a result of the accident.
Her view that she can no longer pursue her original goal to be an RN is
evidence of that.

[89]
In determining an amount under this head of damage I have to consider
other positive and negative contingencies that come to mind in this case.  At
the time of the accident, Ms. Dorosh appears to have overcome her difficult
past and was being mentored to pursue a career as an RN for which she would
have received even greater income.  It appears on the evidence that she likely
has the ability and intellect to reach that goal.  However, she may in the
future have been limited in her employment by her pre-existing health
difficulties which were not insignificant.  Further, although she had in the
past demonstrated an aptitude for coursework for example as a chef and a legal
assistant, she had not demonstrated reliability in fulfilling her demonstrated
skills and has a very sporadic work history.

[90]
Other contingencies include that Ms. Dorosh’s condition may improve if
she pursues the pain clinic or other therapies recommended by Dr. Richardson or
Dr. MacKean.  Alternatively, it may be necessary for Ms. Dorosh to retrain
again to a more sedentary position if she decides that long term she cannot
sustain her work as an LPN which currently she seems to enjoy.

[91]
Considering all of the positive and negative contingencies in this case,
I am assessing Future Loss of Earning Capacity at $150,000.  Although I have
not used an earnings approach in this case, this number accords more closely to
lost work in the range of three-quarters of a day per week as an LPN to the age
of 65 which in my view would be a more appropriate assessment were I to take an
earnings approach.

COST OF FUTURE CARE

[92]
The plaintiff seeks a substantial sum ($180,000) for cost of future
care.  The claim is made based on the evidence at trial including a report by
Nancy Head of Ahead Rehabilitation Management Services Ltd.  Ms. Head testified
at trial.  Robert Carson, economist, has provided an expert report in which he
calculated the total present value of the cost of care items and services in
Ms. Head’s report to be $143,193.  The plaintiff claims the greater amount of
$180,000 based on an error with respect to calculation of pain medication,
particularly Tramacet.

[93]
The defence argues that they should only pay a minor claim for cost of
future care in the range of $4,000 and argues that the evidence does not
support the plaintiff’s claim.

[94]
In Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205
the court summarized the principles that should be brought to the assessment of
damages for the cost of future care:

[21]      Damages for cost of future care are a matter of
prediction.  No one knows the future.  Yet the rule that damages must be
assessed once and for all at the time of trial (subject to modification on
appeal) requires courts to peer into the future and fix the damages for future
care as best they can.  In doing so, courts rely on the evidence as to what
care is likely to be in the injured person’s best interest.  Then they
calculate the present cost of providing that care and may make an adjustment
for the contingency that the future may differ from what the evidence at trial
indicates.

[22]      The resulting award may
be said to reflect the reasonable or normal expectations of what the injured
person will require.  Jane Stapleton, “The Normal Expectancies Measure in Tort
Damages” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort
measure of compensatory damages may be described as the ‘”normal expectancies’
measure”, a term which “more clearly describes the aim of awards of
compensatory damages in tort:  namely, to re-position the plaintiff to the
destination he would normally have reached … had it not been for the tort”.
The measure is objective, based on the evidence.  This method produces a result
fair to both the claimant and the defendant.  The claimant receives damages for
future losses, as best they can be ascertained.  The defendant is required to
compensate for those losses.  To award less than what may reasonably be
expected to be required is to give the plaintiff too little and unfairly
advantage the defendant.  To award more is to give the plaintiff a windfall and
require the defendant to pay more than is fair.

[95]
The award of future care must be based on what is reasonably necessary
on the medical evidence to promote the mental and physical health of the
plaintiff.  There must be medical justification for the claims and the claims
must be reasonable: Milina v. Bartsch, [1985] 49 B.C.L.R. (2d) 33 at 78
(B.C.S.C.), aff’d [1987] 49 B.C.L.R. (2d) 99, paras. 184 and 211 (B.C.C.A.)

[96]
Overall on the evidence it is my view that the claims are inflated based
on the demonstrated abilities of the plaintiff post-accident.  Although the
plaintiff is suffering from chronic pain, she may not have reached maximum medical
improvement.  Further some of the claims are inconsistent; for example she
claims a large amount for massage therapy which does not seem to offer anything
other than temporary relief since she also claims a substantial sum for
medication.  Dr. Roe has stated that massage therapy decreases the need for
medication.

[97]
Considering her claims by category as identified in Mr. Carson’s report,
I award the following as present value of costs including taxes.

Treatment, Therapy and Services

[98]
I am awarding a rounded sum of $9,500 for these anticipated future
costs.  In considering these items I have awarded the current year sums for the
physiotherapy and massage therapy including the IMS treatments.  I am taking
this approach based on the evidence of Ms. Dorosh and the therapists and in
order to allow her to conclude her current treatments to determine whether
completing the course of treatment will provide any additional relief.  Since
these treatments seem to provide limited relief, I am limiting the amount for future
massage therapy to approximately $5,000.  I have also considered the fact that
Ms. Dorosh may not have reached maximum medical improvement and may reach a
point where she does not require them.

Equipment and Supplies

[99]
I am rounding the award to $1,800 for these future costs and am
discounting the claim on the basis that the plaintiff may not have reached
maximum medical improvement and may not require the liniment rub and ice packs
or the TENS machine or may have required them in any event of the accident or
for other purposes.

Medications

[100]  I am
awarding $5,000 as the present value of future medication costs.  I am
satisfied on the evidence that Ms. Dorosh does require some medication to
assist with pain as a result of the accident, but it is difficult to determine
with any degree of precision since the medication particularly Tramacet is used
to treat all of her conditions including her pelvic pain based on the evidence
of Dr. Roe.

Home Support Services

[101]  I am
significantly reducing the plaintiff’s claim under this head since I am not
satisfied on the evidence that Ms. Dorosh requires the housekeeping help she
claims and is now at a position where she can do most of her own housekeeping.
Further, the evidence is clear that Ms. Dorosh will be moving from the current
property and will likely not require the yard maintenance she claims.  I am
awarding $2,000 as the present value of future costs under this category.

Transportation

[102]  I am
heavily discounting the claim under this category which includes a large claim
for ferry costs from Gabriola to Nanaimo since there are various contingencies
that must be considered including that Ms. Dorosh may move to Nanaimo or she
may obtain a position on Gabriola Island.  It is clear from all of the evidence
that she will be moving and that move may already have occurred.  I am awarding
$2,000 under this category which reflects the claim for attendance at
physiotherapy and the Nanaimo Pain Program for the current year along with a
small amount for future ferry travel necessitated as a result of the accident.

[103]
In summary, I award for Future Cost of Care:

SPECIAL EXPENSES

[104]  The plaintiff’s
special expenses are set out in Exhibit 3.  Some of them are agreed to between
the parties and the plaintiff has already received some payments which will be
received after trial.

Medication

[105]  The plaintiff
claims $1,777.75 however acknowledges that the claim for Nbilone should be
discounted.  Considering all of the evidence I am discounting this claim to $1,000
since it is clear from Dr. Roe’s evidence that the Tramacet was used for all of
her conditions not just the accident related pain.

Physiotherapy and Massage Therapy

[106]  I am
awarding the entire amount claimed for a total of $5,368.  I am satisfied that
these treatments were necessitated by the injury in the accident and did
provide some relief which allowed Ms. Dorosh to function in her role as an LPN
and in other aspects of her life.

Transportation and Housework

[107]  I am
discounting this claim to $5,000 from $6,200.74 in light of the fact that some
of the housework claimed may in fact have been for childcare which was
unrelated to the accident or would have been incurred in any event.

Transportation While Taking
the LPN

[108]  I am of
the view that the bulk of these costs would have been incurred in any event.  I
am however awarding $1,200 since I accept that on some occasions Ms. Dorosh
took her car rather than walk on the ferry and bicycle as a result of pain from
the accident.

[109]
In summary, I award for Special Expenses:

CONCLUSION

[110]
In conclusion overall, I award:

[111]
From this will be deducted the amounts already paid out as agreed by
counsel including the $50,000 interim payment I awarded at the adjournment
application on May 2, 2013.

[112]  I am
leaving the issue of interest and tax gross up to counsel since I understand
that this issue may be able to be resolved by counsel.  That issue and costs
may be spoken to if they cannot be agreed between counsel.

 “J.
A. Power, J.” 

The
Honourable Madam Justice J. A. Power