IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130812

Docket: M113055

Registry:
Vancouver

Between:

Joselyn
DeGuzman

Plaintiff

And

Liang
Hong Ge

Defendant

Before:
The Honourable Mr. Justice Smart

Reasons for Judgment

I.        INTRODUCTION AND BACKGROUND

[1]            
The plaintiff, Joselyn DeGuzman, is employed as a Licensed Practical
Nurse ("LPN") at the George Derby Centre, a veteran’s long-term care
facility.  She was involved in a motor vehicle accident (the "MVA")
with the defendant while she was driving home from work.  The defendant admits
liability but disputes the nature and extent of the plaintiff’s injuries and
amount of damages that should be awarded.

[2]            
The MVA occurred at approximately 11:15 p.m. on April 26, 2011 as the
plaintiff entered the intersection of Gilley Avenue and Kingsway Street in the
City of Burnaby.  The intersection is controlled by traffic lights.  The plaintiff’s
vehicle was proceeding southbound on Gilley Avenue on a green light when the defendant’s
vehicle entered the intersection from Kingsway Street on a red light and struck
the driver’s side of the plaintiff’s small Volkswagen convertible.

[3]            
The plaintiff was alone in her vehicle and wearing her seatbelt.  She
described being hit without warning, her vehicle spinning around, and the force
of the impact causing her to feel like her head was "coming off". 
She said she was very frightened and panicked when she could not get out her driver’s
side door.  She eventually got out on the passenger’s side and asked other
persons present at the scene for help.  They assisted her to a bench at a bus
stop where she waited until an ambulance arrived and took her to Burnaby
General Hospital.  She was released a few hours later and picked up by her
sister.

[4]            
The plaintiff testified that as a result of the MVA she suffered injuries
to her neck and left upper shoulder, her left hip, her left elbow, her right
forearm and both of her lower legs.  She produced photographs taken by her
sister a few days after the MVA that show bruising to these areas other than
the whiplash type injury to the neck and left shoulder area.  Photographs of
her vehicle disclose extensive damage to the driver’s side door.  The vehicle
was a "write-off".

[5]            
The plaintiff’s description of the accident is not disputed nor is her
description of the injuries she suffered as a result.  What is primarily in dispute
is the accuracy of her complaint of ongoing pain and discomfort and the extent
to which the injuries have and will affect her ability to work.

[6]            
There were five witnesses who testified concerning the plaintiff’s
injuries:  the plaintiff; Suzanne Grandic and Juliet Guinid, co-workers of the
plaintiff; Dr. Constant Leung, the plaintiff’s family physician; and Dr. Heather
Finlayson, a physiatrist, who examined and interviewed the plaintiff on January
31, 2013.  Brenda Leslie, Coordinator, Payroll & Benefits, for George
Derby, also gave evidence.

[7]            
I will briefly review some of the evidence relevant to the issues in
dispute and then address the question of the credibility of the witnesses.

II.       EVIDENCE

Joselyn DeGuzman

[8]            
Ms. DeGuzman turned 53 in June 2013.  She came to Canada with her
family when she was 20 years old.  After taking some English and Canadian studies
courses, she successfully completed a 10-month practical nursing program at the
Vancouver Vocational Institute and became a LPN.  She first worked as a care
worker for five years at UBC Extended Care Hospital before commencing work as a
LPN at George Derby in 1989, where she has worked steadily for the last 24
years.

[9]            
Ms. DeGuzman is single and has no dependents but does have a large
extended family, which includes nieces and grandnieces.  She lives with a
younger sister who is employed as a care worker.  Prior to the MVA, the
plaintiff enjoyed working, looking after her home and yard, going out with
friends, going to the library, cooking for family and friends, and going for
drives in her Volkswagen.

[10]        
She described the soft tissue injuries she suffered in the MVA and their
effect on her work and personal life.  She was off work from the date of the
MVA, April 26, 2011, until February 21, 2012.  She first returned to work part-time
on an eight-week gradual return to work plan following which she resumed full-time
employment.

[11]        
Exhibit 2 delineates the days she worked between April 13, 2012 and
April 25, 2013.  As a full-time employee, she was normally scheduled to
work five days a week, alternating on a weekly basis between day shift and
afternoon shift.  In addition to vacation days, she also received additional
days off to compensate her for the statutory holidays she was required to work. 
Between May 11 and December 31, she used 71 vacation days and 15 compensatory
statutory days to reduce her actual workload.  In other words, although she was
employed full-time during this period, the days that she actually worked were
significantly reduced.  By early 2013, she had exhausted her banked vacation
time and was no longer able to use vacation days to reduce her workload.

[12]        
The plaintiff testified that although she has returned to full-time work,
she finds the work is now more difficult for her than it was before the MVA. 
She says she no longer has the energy to do many of things she used to do at,
and away from, work.  She said she stopped attending physiotherapy and massage therapy
in the spring of 2012, but recommenced treatment in February 2013 after
resuming a full work load.

[13]        
She testified that she remains anxious about driving and no longer
drives for pleasure.  She avoids heavy lifting at work and has difficulty
kneeling and assisting patients who need to be lifted.  She said she now uses
her days off for treatment, and no longer does the amount or kind of cooking
she used to do.  She relies on her sister to do household chores and gardening.

[14]        
She was fairly but thoroughly cross-examined by Mr. Gibb concerning
her ability to do her work and the things she does away from work, before and
after the MVA, as well as some of the answers she gave at her examination for
discovery on May 15, 2012.  She testified at her discovery that after the MVA
she was still doing some housework and most of the cooking, that she could walk
as far as she did before the MVA, that she was comfortable sitting and reading and
going to a movie, that the pain from her injuries was getting less, and that by
March 2012 she had largely stopped taking prescription medication, although she
occasionally took two tablets twice a week.

Suzanne Grandic

[15]        
Ms. Grandic is a registered nurse employed as a care team co-ordinator
at George Derby.  She described the job of a LPN at George Derby as physically
demanding and highly stressful and said George Derby is a place where there is
always work to be done assisting and caring for patients, assisting physicians
and care workers, and dealing with the patients’ families.  She verified the
accuracy of the written job description and job demands but said that in
reality the work requirements exceed the written descriptions.  She explained
that most of the patients are very elderly, often in their 80s and 90s, many
are in wheelchairs, suffer from dementia, cannot speak, and have difficulty
feeding themselves.  She said the LPNs are required, amongst other things, to
give medications to patients, to help position and reposition them, to help
feed them, and to help them to the washroom.

[16]        
Ms. Grandic testified that after the MVA the plaintiff no longer
displayed the same energy and enthusiasm for her work that she did before the
accident and was having trouble doing some of the jobs.  She agreed that she
never reported or discussed it with anyone, and agreed the plaintiff was doing
a regular rotation at the more demanding job of unit nurse.

Juliet Guinid

[17]        
Ms. Guinid has worked with the plaintiff as a LPN for the last 23
years.  She said before the MVA, the plaintiff was a cheerful, happy person who
never complained about anything, had lots of energy, was very dedicated to her
work, and was always there to assist her co-workers.  She said this all changed
after the MVA.  She said the plaintiff has slowed down, sometimes needs help
with her work, is always complaining of pain in her left hip, neck and
shoulders, and for the first time in 23 years is buying food at the vending
machine and lying down on breaks.

Dr. Constant Leung

[18]        
Dr. Leung has been the plaintiff’s family physician since 2006.  In
his medical report of September 3, 2012, he states that his medical partner saw
the plaintiff on April 27, 2011 and, according to the medical charts, she was
diagnosed with neck and upper back strain, left hip contusion, and extensive
contusion of her bilateral lower legs.  Dr. Leung stated in his report
that:

·      
The length of time the plaintiff has had off work is entirely
reasonable given her diagnosed injuries and her occupation.

·      
He last saw the plaintiff on March 23, 2012, and she reported
improvement at that time.

·      
Her injuries have improved significantly but without complete
resolution.

·      
She should continue on physiotherapy, acupuncture and massage as
required.

·      
His prognosis for her injuries is fair.

·      
She would benefit from psychological counselling.

·      
There is a risk that she will not be able to continue in her
capacity as a LPN for the balance of her work life due to the nature of the MVA,
but it is a little early to say definitively as there remains a fair chance of
further improvements over the next several months.

Dr. Heather Finlayson

[19]        
Dr. Finlayson is a registered specialist in physical medicine and rehabilitation
who conducted a medical assessment of the plaintiff on January 31, 2013.  She prepared
a report explaining her assessment and summarized the injuries the plaintiff
probably suffered as a result of the MVA:

·      
Myofascial pain syndrome – she said the plaintiff has pain
affecting her neck and left upper shoulder that is probably due to myofascial
pain syndrome.

·      
Left greater trochanteric bursitis and gluteal tendinopathy.

·      
Right leg pain below the knee probably from a bone bruise
suffered in the MVA.

·      
Psychological changes – symptoms of post-traumatic stress.

[20]        
Dr. Finlayson provided her opinion concerning the impact of these
injuries on the plaintiff and said, in part:

…. Given the areas affected, i.e., her neck, left shoulder,
left hip girdle and right leg, and the nature of her job, which requires
lifting and repositioning of patients, pushing patients in wheelchairs, and
other physical tasks, it is my opinion that it was reasonable for Ms. DeGuzman
to take six to twelve months off from work.  She needed this time to focus on
rehabilitation and allow relative rest for affected areas to prevent increasing
her pain.  Had she not taken this time off work to focus on healing, she may
have progressed to a more severe cycle of chronic pain.

As a result of her injuries
sustained in the MVA, Ms. DeGuzman is probably more vulnerable to future injury,
such as if she were to sustain a fall at work or to injure herself while
positioning or assisting with a transfer of a heavy patient.  If she does not
sustain future injuries, then I do not anticipate that her future work capacity
and longevity will be significantly decreased by effects of the MVA.

[21]        
Dr. Finlayson also made recommendations that included ongoing
physiotherapy, as well massage therapy and acupuncture for at least the next
two years, and said that "consideration" should be given to psychological
counselling.

[22]        
She agreed in cross-examination it is the unexpected event at work that
puts the plaintiff at risk of further injury.  She agreed everyone is at risk
of this occurring but said the plaintiff was at greater risk because of her existing
injuries.  She maintained her recommendation for ongoing physiotherapy, massage
therapy, and acupuncture even though the plaintiff did not attend for such
treatments for much of the latter half of 2012, and had a gym membership where
she could exercise on her own or with a fitness instructor.

III.       CREDIBILITY

[23]        
Credibility involves an assessment of both the
honesty of the witness and the reliability of their evidence.  The evidence of
a dishonest witness will seldom be reliable but the reverse is not necessarily
true.

[24]        
Mr. Gibb urges me to exercise caution when scrutinizing the
plaintiff’s evidence concerning her injuries.  He does not challenge her
honesty as a witness but does challenge the reliability of her evidence.  He
suggests that the tension and stress of this trial, as well as her examination
of discovery, have exacerbated the effects of her injuries and caused her to
ascribe to the MVA the normal aches and pains associated with her demanding
work and the normal consequences of aging.  He suggests that once the stress of
the trial is behind her, so will go many of the health problems she now
attributes to the MVA.

[25]        
Mr. Gibb points to apparent inconsistencies between her evidence at
discovery and her evidence at trial, such as her inability to babysit her
grandnieces.  He also points to inconsistencies between her evidence and what
she told Dr. Finlayson, such as her consumption of Tylenol and her ability
to walk and do garden work.  Mr. Gibb submits "that these
inconsistencies should prompt the court to be exceedingly careful in
considering Ms. DeGuzman’s complaints of ongoing pain."

[26]        
Mr. Gibb also suggests I should be cautious in relying on the
evidence of her two co-workers as they were trying too hard to assist her
case.  He points to their evidence that after the MVA the plaintiff began
asking for assistance when lifting or repositioning patients when the plaintiff
gave no such evidence.

[27]        
With respect to the medical evidence, he states that while he "would
not go so far as to suggest that either Dr. Finlayson or Dr. Leung
were frank advocates for the plaintiff … it was readily apparent that both
practitioners were very sympathetic to Ms. DeGuzman."

[28]        
Notwithstanding Mr. Gibbs’ able cross-examination and submissions, I
generally accept the plaintiff’s evidence concerning her injuries and the
effect those injuries have had on her work and personal life.

[29]        
Ms. DeGuzman is not a sophisticated witness and English is her
second language.  Subtle differences in the meaning and use of certain words are
likely the reason for differences between some of her evidence at trial and her
evidence at her discovery; for example, her answers to questions about her ability
to babysit, cook, or do work around her house after the MVA.  While she could
watch over her grandnieces after the MVA, she could no longer care for them in
the same way she could before; and while she could do some cooking and
household chores after the MVA, she was significantly limited in what she could
do and was often in pain when she did.

[30]        
On the witness stand, Ms. DeGuzman was not evasive and did not
attempt to embellish her answers with self-serving explanations.  She answered
the questions in a direct, simple manner without attempting to qualify or
amplify her answers.  While there were differences between her evidence and that
of her two co-workers, the thrust of the evidence of the three of them is that
the MVA has had a significant impact on her enjoyment of her work, her
enthusiasm towards her work, her ability to perform her work, and her
relationship with her co-workers.  I accept this evidence.

[31]        
The plaintiff’s past work history is consistent with the sincerity of
her evidence concerning the effect the MVA has had on her ability to work.  She
has worked at George Derby as a LPN since 1989 and worked as a care worker at
UBC Extended Care Hospital for five years prior to that.  Over almost 30 years
she has always been steadily employed, never collected social assistance, never
collected Unemployment Insurance Benefits and, except for a day or two when
injured by a patient while working at UBC, has never claimed WCB benefits.  As Mr. Gibb
properly and fairly conceded, she is an honest, straightforward, hard-working
person of integrity who faithfully performed for many years the demanding and
difficult job of caring for elderly patients.

[32]        
I also accept the evidence of both Dr. Leung and Dr. Finlayson. 
Their evidence is generally consistent with the plaintiff’s evidence.  If these
two physicians are sympathetic to the plaintiff, I expect it is because they
accept her statements to them concerning the effects of her injuries, and know
from their own work experience what a difficult and demanding job it is being a
LPN at facility like George Derby.

[33]        
In short, I find the plaintiff to be a credible witness and I accept her
evidence.  I reach this conclusion having considering her exemplary past work
history, her attitude and demeanour as a witness, the general consistency in
her evidence, the general consistency between her evidence and the evidence of
her co-workers and the physicians, and the inherent probability and
reasonableness of her evidence in the context of the evidence as a whole.  I am
satisfied the emotion she displayed on the witness stand was sincere when she
was describing the MVA and its psychological and physical consequences upon her.

IV.      HEADS OF DAMAGES

Non-Pecuniary
Damages

[34]        
Mr. Calder refers me to Prempeh v. Boisvert, 2012 BCSC 304, where
Dardi J. summarized the applicable legal principles when assessing non-pecuniary
damages at paras. 73-75:

Non-pecuniary damages are intended to compensate a plaintiff’s
pain, suffering, and loss of enjoyment of life. The award should compensate
a plaintiff for those damages they have suffered up to the date of the
trial and for those they will suffer in the future. The essential
principle derived from the authorities is that an award for non-pecuniary
damages must be fair and reasonable to both parties and should be measured by
the adverse impact of the particular injuries on the individual plaintiff: Hmaied
v. Wilkinson, 2010 BCSC 1074 at para. 55. While fairness is assessed
by reference to awards made in comparable cases, it is impossible to develop a "tariff";
each case is decided on its own unique facts: Lindal v. Lindal, [1981]
2 S.C.R. 629 at 637; Kuskis v. Hon Tin, 2008 BCSC 862 at para. 136.

The B.C. Court of Appeal in Stapley v. Hejslet, 2006
BCCA 34 at para. 46, leave to appeal to SCC refused, 31373 (October 20,
2006), enumerated the factors to be considered in awarding non-pecuniary
damages. The non-exhaustive list includes: the age of the plaintiff; the
nature of the injury; the severity and duration of pain; the degree of
disability; the impairment of family, marital, and social relationships; and loss
of lifestyle.

The assessment of non-pecuniary
damages is necessarily influenced by the individual plaintiff’s personal
experiences in dealing with her injuries and their consequences, and the
plaintiff’s ability to articulate that experience: Dilello v. Montgomery,
2005 BCCA 56 at para. 25.

[35]        
Mr. Calder also refers me to Koshman v. Brodis, 2013 BCSC
656, Graydon v. Harris, 2013 BCSC 182, and Foster v. Kindlan
and Pineau, 2012 BCSC 681, and submits the appropriate award under this
heading is between $50,000 and $60,000.

[36]        
Mr. Gibb submits the appropriate range is approximately half of
that amount and refers me to Hussain v. Cho, 2012 BCSC 194, and Olianka
v. Spagnol, 2011 BCSC 1013, in support of his position.

[37]        
The awarding of damages is an assessment, not a mathematical
calculation.  Decisions of other trial judges are helpful and provide a range,
but each case is fact-specific.

[38]        
Here, the plaintiff was 50 at the time of the MVA.  She has a physically
demanding job.  She enjoyed a relatively active life away from work.  As
stated, I accept her evidence and I find that while her pain has reduced since
the MVA, she continues to have significant discomfort from her injuries.  I
find that this has impacted her enjoyment of her work and her relationship with
her co-workers.  It has also limited the activities she used to enjoy doing
away from work, such as cooking, keeping her house and yard, walking, driving
for pleasure, and caring for her grandnieces.

[39]        
In my view, a fair and reasonable award of damages under this heading is
$50,000.

Past
Economic Loss

[40]        
Mr. Calder submits that the appropriate award is that set out in
the Notice to Admit – $45,598.26.  This includes the subrogated interest of the
plaintiff’s employer for repayment of her accumulated sick bank time in the
amount of $33,354.73.  Mr. Calder agrees the plaintiff is only entitled to
net past wage loss but argues that the award to replenish the sick bank is the
gross amount of past wage loss, not the net amount.  He refers me to Chingcuangco
v. Herback, 2013 BCSC 268, Chalmers v. Russell, 2010 BCSC 1662, and Bjarnason
v. Parks, 2009 BCSC 48.

[41]        
Mr. Gibb notes that the plaintiff is only entitled under the
provisions of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, to
recover net past wage loss and that income tax contributions and Employment
Insurance premiums are to be deducted from the gross earnings to determine net
past wage loss.  While he does not disagree with Mr. Calder’s arithmetic,
he does disagree that repayment of the sick bank time should be the gross wage
loss.  He argues that it should be consistent with past wage loss awards and
should be the net amount – $39,247.42.  He says to make the award Mr. Calder
suggests would over-compensate the plaintiff.

[42]        
I respectfully disagree with Mr. Gibb.  In my view, the purpose of
an award for past wage loss is to compensate the plaintiff for what she
actually lost as a result of the MVA.  To only compensate her for the net
amount of her sick bank time would result in deductions being taken from her
twice – now and later when she uses them in the future.  This is because when
she does use her replenished sick bank time, she will have income tax and other
deductions taken from her by the employer and will only receive the net amount.

[43]        
The plaintiff is entitled to the past wage loss in the amount of
$45,598.26.

Future Wage Loss/Loss of
Earning Capacity

[44]        
Mr. Calder refers me to Rozendaal v. Landingin, 2013 BCSC 24,
and Tomashewsky v. Linnebank, 2013 BCSC 814, in support of his position
that the plaintiff is entitled to an award for loss of earning capacity.  He
argues that a reasonable award is $20,000, provided the court also makes an appropriate
award for the cost of ongoing care that will enhance her ability to work in the
future.

[45]        
He refers me to Dr. Finlayson’s evidence that the plaintiff is more
vulnerable to future events, which could lead to more than periodic time loss
from work, as well as to Dr. Leung’s opinion that there "is a risk
that Ms. DeGuzman will not be able to continue in her capacity as a
licensed practical nurse for the balance of her work life due to the nature of
the motor vehicle accident injuries."

[46]        
Mr. Gibb reminds me that in Perren v. Lalari, 2010 BCCA 140,
the Court of Appeal said that a plaintiff must always prove a real and
substantial possibility of a future event leading to an income loss, and only
then may seek to prove the quantification of that loss of earning capacity on
either an earnings approach or a capital asset approach.

[47]        
Mr. Gibb submits that the plaintiff has failed to establish a real
and substantial possibility of a future event leading to an income loss.  He
says that while Dr. Leung may have been rather pessimistic in his medical
report, the plaintiff has successfully worked full time and full duties for
over a year since Dr. Leung last saw her, prior to preparing the report. 
He says that Dr. Finlayson expects the plaintiff to be able to continue
her work barring any future injury, and she said the risk of future injury is
present for all workers.  He also says Dr. Finlayson has not set out any
reasons in her report to support her opinion that the plaintiff is at greater
risk of future injury because of her injuries.  He says there should be no
award for future wage loss.  Mr. Gibb adds that if the plaintiff is
injured at work, she will be entitled to WorkSafe BC benefits and could, in any
event, look for other related less onerous work.

[48]        
In Rozendaal, Holmes J. succinctly summarized the applicable
legal principles at paras. 93-95:

A claim for loss of future earning capacity raises two key
questions: first, has the plaintiff’s earning capacity been impaired by his or
her injuries; and second, if it has, what compensation should be awarded for
the financial harm that will accrue over time as a result? As far as possible,
the plaintiff should be put in the position he or she would have been in but
for the injuries caused by the defendant’s negligence: Lines v. W & D
Logging Co. Ltd., 2009 BCCA 106 at para. 185.

The essential task of the Court is to compare the likely
future of the plaintiff’s working life had the accident not happened with the
likely future given the accident. This is a matter of judgment based on the
evidence; it is not a purely mathematical calculation. The appropriate means of
assessment will vary from case to case ….

Low J.A. summarized the principles that apply in assessing
loss of future earning capacity in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real
and substantial possibilities of loss, which are to be quantified by estimating
the chance of the loss occurring: Athey v. Leonati, supra, at para. 27,
Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation
of the loss of earning capacity may involve a comparison of what the plaintiff
would probably have earned but for the accident with what he will probably earn
in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop,
2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995] B.C.J. No. 644
(C.A.) (Q.L.). Moreover, the task of the Court is to assess the losses, not to
calculate them mathematically: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course of
future events is unknown, allowance must be made for the contingency that the
assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79.

[49]        
The plaintiff has candidly testified that her intention is to only work
until she is 60 years of age, approximately another seven years.  Accordingly,
over the next seven years, what is the likely future of the plaintiff’s working
life had the accident not happened compared with the likely future given the
accident?

[50]        
The threshold question is whether the plaintiff has proven a real and
substantial possibility that her earning capacity has been impaired by the MVA.
If so what is the appropriate award?

[51]        
The proper analysis was recently reiterated by Garson J.A. in Morgan
v. Galbraith, 2013 BCCA 305 at para. 53:

As already noted, in Perren, this Court held that a
trial judge must first address the question of whether the plaintiff had
proven a real and substantial possibility that his earning capacity had been
impaired. If the plaintiff discharges that burden of proof, then the judge must
turn to the assessment of damages. The assessment may be based on an earnings
approach (rejected by the trial judge here) or the capital asset approach, as
described in Brown (the approach adopted by the trial judge) to
determine Mr. Morgan’s lost earning capacity, given Mr. Morgan’s
career path was uncertain at the time of the accident. The trial judge stated
at para. 56:

Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.), cited above, and cited elsewhere by our Courts many
times, provides the approach to use for a person whose path is unclear. The
plaintiff’s injury is treated as the loss of an asset. Finch J., as he then
was, listed the following as considerations in Brown for awarding loss
of future income:

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.

[52]        
I find there is a real and substantial possibility that the plaintiff’s
earning capacity has been impaired even if she receives future medical care.  Her
ability to do her physically demanding job is already tenuous as a result of
the MVA.  It is likely to become more tenuous as she moves closer to 60 years
of age.  She is also more likely to be injured at work as a result of the injuries
she suffered in the MVA.  I accept Dr. Finlayson’s evidence on this
point.  It is a matter of common sense based of the demanding nature of her
work and the effect her injuries from the MVA have on her ability to do that
work.

[53]        
In my view, damages are best assessed using the capital asset approach. 
I find the plaintiff is rendered less capable overall from earning income from
most types of employment, is less marketable or attractive as an employee, and
is less valuable to herself as a person capable of earning income in a
competitive labour environment.

[54]        
I am satisfied that amount suggested – $20,000 – is reasonable and fair
in the circumstances, and I make that award.

Cost
of Future Care

[55]        
The plaintiff claims future care costs as suggested by Dr. Leung
and Dr. Finlayson.  Both recommend psychological counselling, and Dr. Finlayson
recommends both physiotherapy and massage therapy one or two times per month
for at least two years and possibly for the balance of her work life.  Mr. Calder
submits a reasonable award under this heading is $19,500, based on one
physiotherapy and one massage treatment every two weeks for the next two years,
and half of that amount thereafter until age 60, plus $2,500 for counselling
with a registered psychologist once every month for the next one to two years. 
Mr. Calder has calculated the net present value for these future care
expenses using a discount rate of 3.5 per cent, as required under the Law
and Equity Act, R.S.B.C. 1996, c. 253, to arrive at the requested
award.

[56]        
Mr. Gibb submits that the plaintiff "has somewhat overstated
her current condition and the cost of future physiotherapy, massage therapy,
and acupuncture is not an expense that ought properly to be borne by the
defendant."  He points out that while Dr. Finlayson says the
plaintiff needs psychological counselling, she cannot say the plaintiff suffers
from post-traumatic stress disorder.  He also notes that Dr. Leung did not
refer the plaintiff for psychotherapy during the months immediately following the
MVA when her psychological symptoms were most acute, and emphasizes that the
plaintiff’s symptoms have diminished and her nightmares about the accident had
stopped by the time of her discovery in March 2012.

[57]        
I generally agree with Mr. Calder’s submissions.  However, there
has not been psychological counselling in the past and most of the emotional
consequences of the MVA appear to have lessened with the passage of time.  I
accept that some counselling will likely be beneficial to the plaintiff but I
am not satisfied the amount requested is necessary.  I am also not satisfied
that the number of requested physiotherapy and massage treatments is necessary.

[58]        
I find that a fair and reasonable award for future care is $16,000.

Special Damages

[59]        
The plaintiff submits that the appropriate amount is $6,487.34.  The
defendant submits that physiotherapy and massage therapy in 2013 was
unnecessary as she coped just fine in the second half of 2012 without such
treatments when she was doing her stretching and strength exercises at the
gym.  The defendant’s position is that an appropriate amount is $6,036.26.

[60]        
I respectfully disagree with the defendant’s position.  I accept the
plaintiff’s position that the treatment she received in 2013, after she had
returned to full-time work, was needed because she was no longer able to reduce
her actual work days by using her vacation time, as she had in 2012.  The
plaintiff’s position is supported by the evidence of Dr. Finlayson.  I
award special damages in the amount of $6,487.34

V.       CONCLUSION

[61]        
For the reasons explained above, I award the plaintiff:

"SMART J."