IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130813

Docket: M062867

Registry:
Vancouver

Between:

Donna Langille

Plaintiff

And

Van Cuc Nguyen

Defendant

And

Docket: M110943

Registry:
Vancouver

Between:

Donna Langille

Plaintiff

And

Kitada Masahiro,
Hailey Marchant and

Patricia Lynne
Marchant

Defendants

And

Docket: M124892

Registry:
Vancouver

Between:

Donna Langille

Plaintiff

And

Casey Anne
Zimmerman and

Jennifer Jensen

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, Donna Langille, was involved in three motor vehicle
accidents in 2004, 2009, and 2010. Ms. Langille claims that she suffered
injuries in all the accidents ‒
in particular, chronic back and shoulder pain and a mild brain injury ‒ which affect her and
restrict her activities to this day. She claims damages for non‑pecuniary
loss, past income loss, future income loss, future cost of care and the value
of services provided.

[2]            
Liability is admitted for the 2010 accident only (the defendants Casey
Zimmerman and Jennifer Jensen in Action M124892).

II.              
Issues

[3]            
The issues for determination are:

a)    liability for
the first motor vehicle accident on December 19, 2004 involving the defendant
Van Cuc Nguyen (Action M062867);

b)    liability for
the second motor vehicle accident on December 13, 2009 involving the defendants
Hailey Marchant and Patricia Marchant (Action M110943); and

c)     the extent
of injuries suffered by Ms. Langille arising from the third accident on
August 26, 2010, and the first and second accidents in the event that the
defendants are found fully or partially liable for those accidents.

III.            
Background Facts

A.             
Prior to the Accidents

[4]            
Ms. Langille was born in Nova Scotia in May 1960 and was 52 years
of age at the time of the trial. When she was young, her family moved to
Campbell River on Vancouver Island, where she attended high school. She did not
finish Grade 12.

[5]            
In 1978, she took some courses at North Island College for a few months.
She then began working at a financial institution, where she worked for many years
until the late 1980s.

[6]            
In 1988, Ms. Langille began a relationship with Drew Drewoth.
Shortly thereafter, she began working with Mr. Drewoth in his construction
job, which involved supplying and installing stucco. Although this was very
heavy work, Ms. Langille worked long hours in this business. This business
ended after some 12 years.

[7]            
In 1999, Ms. Langille temporarily moved to Alert Bay on Vancouver
Island to look after the affairs of her ailing mother. There, she held down
three jobs. She looked after a rental cabin business, worked as a cashier at a
grocery store, and bartended at the Legion. Around the same time, Ms. Langille’s
relationship with Mr. Drewoth began to fail, although she returned to live
with him in Gibsons, B.C. and then Burnaby, B.C. while continuing in the stucco
business.

[8]            
Between June and October 2002, Ms. Langille and Mr. Drewoth
moved to Edmonton, where Ms. Langille held down two jobs, working in a
data centre and as a bartender. Later that same year, they moved back to the
Lower Mainland and lived together in North Vancouver until April 2003.

[9]            
In March 2003, Ms. Langille secured a position at Securicor (now
known as G4S plc). Securicor is in the business of processing cash from various
sources, including banks, grocery stores and the like. Securicor also supplies
cash to those same businesses and handles bank machines all over the Lower
Mainland.

[10]        
Ms. Langille’s first position at Securicor was in the “cash cage”,
which involves processing deposits from various sources, including verifying
the bags of cash delivered. This involved handling fairly heavy bags of cash,
in the range of 15 to 20 pounds, and pushing tubs of cash around. There was
also some stationary activity. Her co-worker, Marie Viani, described Ms. Langille
as friendly, energetic and fun to be with.

[11]        
Ms. Langille, consistent with her early history, obtained a second
job. In April 2003, she began working afternoon shifts at a beer and wine store
associated with the Squarerigger Pub in West Vancouver. She would work six-hour
shifts on Tuesdays, Wednesdays and Thursdays. She also acted as a bartender in
the pub from time to time on Friday and Saturday nights.

[12]        
She says that she worked so hard in order to fulfill her dream of saving
enough money to move to the Okanagan and buy a condominium and enjoy a better
climate. She says that her second job was her “savings account”.

[13]        
Ms. Langille obtained her own apartment in North Vancouver in the
spring of 2004, as her relationship with Mr. Drewoth came to a close.

[14]        
Prior to December 2004, Ms. Langille had no physical injuries
arising from her various jobs. She describes herself as very active prior to
this time. She says that she was an avid walker and that she enjoyed camping,
hiking, river rafting, riding bikes and gardening. She says that she also
enjoyed being active with her girlfriends. She would organize “girls’ nights
out” with her friends, including Ms. Viani, which involved dancing and
karaoke.

B.             
The First Accident and Aftermath

1.              
The First Accident

[15]        
The first motor vehicle accident occurred on December 19, 2004.

[16]        
Ms. Langille was driving her Nissan Pulsar home at around 6:30 pm
after working a shift at the Squarerigger Pub. She was travelling eastbound on
Marine Drive in North Vancouver after having stopped at Capilano Road. She says
that Mr. Nguyen’s vehicle came out of nowhere and cut across her lane of
travel. Mr. Nguyen confirmed that he was crossing the eastbound Marine
Drive lanes for the purpose of turning left onto that street. Despite slamming
on her brakes, Ms. Langille T-boned his car. She described the impact as
“pretty hard”. Mr. Nguyen agreed, calling it a big collision and a
significant impact.

[17]        
As a result of the accident, Ms. Langille went forward then slammed
into the headrest of her seat. She did not lose consciousness. Mr. Nguyen’s
car was written off.

2.              
Aftermath

[18]        
As luck would have it, some ambulance attendants were at the gas station
kitty corner to the accident scene. They immediately attended to her. One
attendant held her head while the driver’s door was crowbarred open. She was
placed on a stretcher and taken to Lion’s Gate Hospital. At that time, she felt
pain in her neck and lower back and she had a headache. After x-rays, she was
sent home with some Tylenol 3.

[19]        
The following day, she felt very stiff and sore and had a bad headache.
She visited her family doctor, who diagnosed injuries to her shoulder, low back
and neck. She was prescribed muscle relaxants and painkillers.

[20]        
She was off work at Securicor for about a month before undergoing a
graduated return to work. She did not return to the Squarerigger Pub until
February 2005, but even then she considered that she could not do the heavy
lifting that was required of that job. Her last shift there was in November
2005. She says that she has been unable to hold down any second job since that
time, due to what she considers are her physical limitations. She says that she
was unable to do any of the required lifting of boxes or kegs at the pub and
beer and wine store.

[21]        
She describes her injuries as relating to her neck, her left shoulder,
between the shoulder blades (like “razor blade cuts”), and her lower back. She
also had headaches.

[22]        
Ms. Langille’s treatment consisted of physiotherapy, as recommended
by her doctor, from January to April 2005. Those sessions were two or three
times per week. She also tried massage therapy three times a week over that
same time frame. Thereafter, Ms. Langille completed certain exercises at
home and continued her walking routines. Further, she took prescription and
then over-the-counter medications from January to April 2005.

[23]        
Ms. Langille says that she started to feel better by the
spring/summer of 2005. She was walking every day and was happy to return to
work. She saw a medical practitioner (Dr. Quirke) for treatment when
needed, which was maybe only once a month. Aside from a massage session in
2009, she did not require any physiotherapy or massage treatment in the four
years preceding the second accident.

[24]        
Her co-worker, Matthew Stewart, described her during this time as happy
and bubbly, with a smile on her face.

[25]        
Later, in early 2006, Ms. Langille obtained a new position with
Securicor in the turret and equipment room. This position was largely
stationary and involved monitoring access of people and trucks, answering
phones and data entry.

[26]        
In 2006, Ms. Langille met Ron Dooris, who was also an employee of
Securicor working on Vancouver Island. Mr. Dooris lives in Campbell River.
They began seeing each other regularly and they would typically visit each
other twice a month, taking turns travelling between North Vancouver and
Campbell River for a weekend. Ms. Langille did not feel that the first
accident affected their relationship at all at this time.

[27]        
In early 2007, Ms. Langille was trained at Securicor to work on the
armored trucks. She asked for this change due to the higher wage. This position
involved carrying a firearm (a .38 Special after she obtained a license in
November 2007). She was also qualified originally to carry and operate a
shotgun, which was required in the event of a long haul of cash.

[28]        
Securicor operates on a 24/7 basis and has both day and night shifts. Ms. Langille
considered that the daytime work was easier since the loads of cash were
lighter. However, she generally liked the night shifts, which involved dealing
with night safes and bank machines, because there was less traffic and the work
was more interesting and faster paced. She particularly emphasized that working
on the bank machines in the evening was more difficult because she had to kneel
down to get the cash and then lift the cash out.

[29]        
By December 2009, some five years later, Ms. Langille said that her
neck and mid back were about 70% recovered. She still had neck problems that
caused pain when she was watching TV, reading or driving, including doing
shoulder checks. She was also still getting a razor blade feeling between her
shoulder blades. Her lower back was about 80% recovered. She had few problems
with her left shoulder by this time.

C.             
The Second Accident and Aftermath

1.              
The Second Accident

[30]        
The second accident on December 13, 2009 was by far the most serious.

[31]        
Ms. Langille was coming from the Securicor Christmas party in East
Vancouver late at night. The defendant Kitada Masahiro was also coming home
that night. Both were heading to the Second Narrows Bridge leading to North
Vancouver. It was dark, but both parties say there was no rain and the weather
was clear.

[32]        
The bridge has three northbound lanes, and it is accepted that the
bridge rises to a crest or midpoint after which it slopes down towards the
North Shore. The entrance to the bridge from McGill Street is a long on-ramp.
It eventually becomes a third lane on the far right or outside lane on the
bridge.

[33]        
Both Ms. Langille and Mr. Kitada entered the bridge about the
same time, with Ms. Langille’s vehicle slightly behind that of Mr. Kitada.
At this point, their stories diverge.

[34]        
Ms. Langille says that she was in the middle lane and that Mr. Kitada
was to the right of her as they went over the bridge. She wanted to get in the
right lane. As she was shoulder-checking, she says, Mr. Kitada “cut her
off” by moving into her lane without notice. Despite Ms. Langille slamming
on her brakes, she rear-ended Mr. Kitada.

[35]        
Mr. Kitada says that after he entered the highway from the McGill
Street entrance, he moved into the middle lane of travel. He says that sometime
after reaching the crest of the bridge, he noticed police lights flashing and a
traffic jam in front of him. He says he was rear-ended by Ms. Langille
while he was slowing down.

[36]        
After the collision between Ms. Langille and Mr. Kitada,
certain critical events occurred.

[37]        
Ms. Langille says that she was angry about the collision. She got
out of her vehicle, approached Mr. Kitada and yelled at him. He did not
respond. He was preoccupied with picking up certain shopping bags and their
contents, which had been ejected from his trunk onto the road behind his
vehicle.

[38]        
Ms. Langille turned her car off when she got out of her vehicle,
although she says that she left the interior lights on in her car. She says
that there was lots of light. Indeed, there are street lights spaced over the
entire span of the bridge. While speaking with Mr. Kitada, she realized
that they would need to exchange the usual information, so she returned to her
vehicle, which remained stationary in the middle lane. With the door slightly
ajar, she got into the driver’s seat and proceeded to reach across the car to the
glove box for her insurance papers.

[39]        
She did not move her car after the collision, nor did she activate her
emergency lights at any time, even though she obviously realized that she was
in the middle lane of the highway. She thought that cars had lots of room to go
around her and Mr. Kitada’s car.

[40]        
While reaching across to the glove box, her vehicle was hit from behind
by a vehicle being driven by the defendant, Hailey Marchant.

[41]        
The impact was severe.
Ms. Langille’s car was completely turned around by the collision. Mr. Kitada,
who was still picking up his bags, was pinned between his vehicle and that of Mr. Langille,
as the latter was forced forward by the impact. Ms. Langille recalls only
a loud boom and everything going black. She awoke on a stretcher as she was
being transported to the emergency room at Lion’s Gate Hospital. She would
remain there for the next four days.

[42]        
Ms. Marchant says that she was travelling in the middle lane on the
bridge. Just after she had reached the crest of the bridge, she noticed red and
blue flashing lights at the north end of the bridge. Immediately thereafter,
she noticed Ms. Langille’s car stopped in the middle of the road. She
immediately applied her brakes and attempted to swerve to the right, but failed
to avoid a collision. She hit Ms. Langille’s vehicle’s right back side
while travelling at a fairly high rate of speed.

[43]        
Ms. Marchant says that she was unable to stop before the collision.

[44]        
In my view, the issues surrounding the accident involving Mr. Kitada
and Ms. Langille are not relevant to the determination of the issues in
these actions. Ms. Langille discontinued her action against Mr. Kitada,
so it is not necessary to decide who was at fault in respect of the first
collision. Further, I consider that the two collisions were separate events.
Accordingly, while the two accidents occurred within a timespan of only a few
minutes, it is possible to determine the liability for the second accident
without making any such determination for the first accident.

2.              
Aftermath

[45]        
Ms. Langille’s injuries from the second impact in the second motor
vehicle accident were severe. They included a broken nose; a fracture of her C7
vertebrae; a torn rotator cuff on the left side; bruising in the rib cage, back
and left leg (from hitting the steering wheel); and a right foot sprain. She
was required to wear a neck brace. She had black eyes and stitches on her nose.
She was on soft foods at the hospital and had to take morphine for the pain.

[46]        
In the days and weeks following the accident, Ms. Langille required
extensive assistance. Her boyfriend, Mr. Dooris, and his relatives
collected her at the hospital and took her home. In the immediate time frame, Mr. Dooris
attended to all her needs and cared for her. This included bathing and feeding
her, doing the grocery shopping, and helping her with personal care. This took
about eight to ten hours per day. Ms. Viani also helped in this time frame
with buying groceries, feeding her, doing household chores, and helping her
shower. Initially, she went about five days a week for a couple of hours a day;
after a month, she went once a week for a couple of hours.

[47]        
Mr. Dooris took Ms. Langille to Campbell River for Christmas
2009 and continued to care for her there. Ms. Langille returned to her
home in North Vancouver in early January 2010 for a medical appointment with
the neurosurgeon. She was advised to continue wearing the neck brace for three
months and to rest. She continued on medication, including morphine. She obtained
some at-home care for cooking and cleaning.

[48]        
After another short stay in Campbell River with Mr. Dooris, Ms. Langille
continued to convalesce in her home in North Vancouver. Ms. Viani still
came by to help every second or third day. By February, Ms. Langille
noticed some improvement and stopped taking morphine. Mr. Dooris helped
around two to three hours per day in February when he came to Vancouver.

[49]        
After the neck brace came off, on the recommendation of her doctor, she
started physiotherapy sessions about three times a week. She also completed
certain exercises every day. As recommended by her doctor, Dr. Louise
Corcoran, she attended some massage therapy sessions, but she found them
painful. She took various prescription and over-the-counter medications during
this time frame.

[50]        
By June 2010, Ms. Langille returned to work on light duties in the
turret position and on a graduated basis. She returned to regular duties
working on the trucks after two months.

[51]        
After the second accident, due to her ongoing treatments and inability
to drive long distances, she and Mr. Dooris were unable to visit as much
as they had done previously. In addition, the intimacy in their relationship
was negatively affected.

3.              
Conditions Prior to the Third Accident

[52]        
Ms. Langille describes her condition in the time frame between the
second and third accident as follows:

a)    Her broken nose
healed after a couple of months, but it gets red and sore when it is cold out.
Also, she has a scar, which she considers a blemish.

b)    Her right-ankle
sprain bothered her for six weeks. She wore a tensor bandage. It was fully
healed in a couple of months.

c)     Her knee
healed quickly except for unsightly broken veins, which cause her some concern.

d)    Her abdominal
bruising was sore and tender for several months. No treatment was required.

e)    Her left
shoulder was very painful in the first couple of months, causing her to avoid
sleeping on her left side. Ms. Langille described significant restriction
in moving her arm and shoulder, which affected her ability to complete certain
personal care tasks. She did not recall much of a problem by the end of 2009.
She said it was 80% recovered by this time.

f)      Her
headaches remained for six months and lessened after that time. Now she only
gets them a couple of times per month and they last for a few hours. She takes
over-the-counter pain medication for them.

g)    Her neck hurt at
first and was sore and stiff when the neck brace came off after three months.
After six months, it was still painful and stiff, resulting in her going back
to light work duties. Now, she takes it easy and does not lift things. By this
time, her neck was 70% improved.

h)    Her back was
really sore in the first couple of months, but she was doing a lot better after
six months. By this time, she felt good (about 70-80% recovered).

i)       She
had difficulty sleeping and was very moody and irritable.

j)      She
had little energy outside of work.

k)     She found
it difficult to concentrate and she had memory problems.

[53]        
Ms. Langille describes herself as 50% recovered from the second
accident just prior to the third accident.

D.             
The Third Accident and Aftermath

1.              
The Third Accident

[54]        
The third accident occurred only some eight months after the second one,
on August 26, 2010.

[55]        
Ms. Langille was travelling home from a physiotherapy session on
the portion of the eastbound Trans-Canada Highway in North Vancouver commonly
referred to as the “Cut”. She was in the inside lane so as to avoid the merge
lane to the right. At some point, a vehicle cut in front of her and she slammed
on the brakes. However, it appears that the driver of the vehicle behind her, Ms. Jensen,
was distracted and did not stop in time. She rear ended Ms. Langille’s
vehicle.

[56]        
Ms. Jensen describes the impact as a significant jolt. She hurt her
head on the steering wheel. Both women were visibly affected by the collision. Ms. Langille’s
vehicle sustained about $4,500 in damage. Ms. Jensen’s vehicle was written
off.

2.              
Aftermath

[57]        
Ms. Langille’s immediate reaction was concern that her new injuries
would exacerbate her continuing injuries from the prior accidents and disrupt
the progress that she had been making. She immediately visited Dr. Corcoran,
who recommended x-rays and prescribed some medication. Ms. Langille
immediately noted that she felt worse in her lower back and shoulders. Dr. Corcoran
saw her again the next day and diagnosed neck, lower back and shoulder pain.
She recommended physiotherapy, pain medication and rest.

[58]        
Ms. Langille only missed two to three days off work and she shortly
returned to her armored car position at Securicor. She still works the
less-preferred day shifts, where the loads to carry are less and there is less
reaching into the cash machines. Further, since the second accident, due to her
injuries, she has been prohibited from carrying a shotgun. This has excluded
her from the long-haul driving that might have been available to her. There
was, however, no evidence that there was any criticism of Ms. Langille’s
performance at work.

[59]        
Her current co-worker, Mr. Stewart, is very understanding and
apparently assists her with tasks that she finds difficult. Mr. Stewart
confirmed that she is more irritable and gets upset more quickly than before
the 2009 accident. He also confirms that she has difficulty remembering how to
operate the computer for the bank machines.

3.              
Conditions After the Third Accident

[60]        
Ms. Langille says that in terms of ongoing recovery, her condition
has now plateaued. She describes her condition after the third accident as follows:

a)    She continues to
get headaches.

b)    Her right
shoulder is very painful and her overall shoulder area is sore.

c)     Her neck
hurts. She still avoids lifting things.

d)    Her back is
stiff and very painful. The symptoms never go away.

e)    Her right hip is
now sore.

f)      She
still has concentration and memory difficulties.

g)    She has
difficulty sleeping.

h)    She does not now
take prescription medicine, but she takes over-the-counter pain medication,
such as Advil or Motrin, every day.

[61]        
Ms. Langille says that the aftermath of the accidents has severely
affected her day-to-day activities. She has little energy to do anything beyond
going to work. She no longer walks every day and cannot manage more extensive
physical exercise, such as hiking. Her usual activities include home-based ones,
such as watching TV, reading and playing games. She no longer organizes events
with her friends. She has gained weight and feels less attractive. She finds it
painful to do personal care tasks. She is able to do some gardening with the
assistance of Mr. Dooris. She is only able to complete her housework with Mr. Dooris’
assistance, which he describes as split 75/25 between them.

[62]        
Ms. Viani describes Ms. Langille as not as happy as she once
was. She confirms that Ms. Langille has little energy beyond working, so
they have fewer girls’ nights. Her friend, Roberta Stubbs, who has known Ms. Langille
since 1999, describes her as a changed person after the accidents. She is less
cheerful and easygoing and she no longer enjoys the outside as she used to.

[63]        
Finally, Mr. Dooris describes Ms. Langille as less patient,
quicker to anger, and less outgoing and bubbly than when he met her in early
2006. He says that Ms. Langille will often wake in the middle of the night
from the pain. He also describes her physical limitations, particularly
regarding lifting.

[64]        
Ms. Langille has plans to move to Campbell River to live with Mr. Dooris,
but this would likely mean that Ms. Langille would not obtain full-time
employment with Securicor.

IV.           
Liability

A.             
First and Third Accidents

[65]        
Liability is admitted by the defendants for the third accident on August
26, 2010.

[66]        
As for the first accident, Mr. Nguyen called no evidence to refute Ms. Langille’s
version of events. His discovery evidence essentially substantiates her
evidence. Nor did Mr. Nguyen make any submissions concerning the issue of
liability. I conclude that Ms. Langille has met the burden of proof in
establishing that Mr. Nguyen was entirely responsible for that accident.

B.             
Second Accident

[67]        
One of the major issues in this case is who is responsible for the
second accident as between Ms. Langille and Ms. Marchant. I have
already outlined above Ms. Langille’s version of events.

1.              
Liability of Ms. Marchant

[68]        
Both Ms. Langille and Mr. Kitada agree that both cars were in
the middle lane when they came to rest after the first collision. There is,
however, a discrepancy in the evidence about where the collision between Mr. Kitada
and Ms. Langille occurred and where their vehicles came to rest.

[69]        
Mr. Kitada estimated that his vehicle was three-quarters of the way
over the bridge toward the North Vancouver side when he was first hit. He was
still travelling in his vehicle and eventually came to a stop. At that time, he
estimated Ms. Langille’s car was 5-10 meters behind him. Ms. Langille
says that she rear-ended Mr. Kitada when she was close to the midpoint of
the bridge.

[70]        
Ms. Marchant was in her early 20s and was driving her mother’s Mini
Cooper. She was with some friends and was, as the designated driver, driving
them home after a party. She says that she was travelling about 50-60 km/hour,
which is well below the speed limit on the bridge. After merging from the
McGill Street on-ramp, she moved to the middle lane. As she crested the bridge,
she noticed the flashing lights at the north end of the bridge and glanced over
quickly. She then noticed the vehicles of Ms. Langille and Mr. Kitada
stopped in the middle lane. She estimates that the cars were between six and
ten car lengths away from the crest of the bridge.

[71]        
Ms. Marchant did not notice any brake lights from Ms. Langille’s
vehicle, which is consistent with Ms. Langille’s evidence that she only
had her running lights on. Only after around two seconds from first noticing Ms. Langille’s
vehicle did she realize that the vehicles were not moving. She braked and
turned to the right to attempt to avoid a collision, but she hit the back right
side of Ms. Langille’s vehicle.

[72]        
There are difficulties reconciling Ms. Marchant’s evidence that she
had no time to stop through no fault of her own after she saw that the vehicles
were stopped. She candidly admitted at discovery that “it was too fast. I was
too close. I didn’t see it soon enough”. But it begs the question: why could
she not have at least slowed down more to lessen the impact?

[73]        
Generally speaking, when one car runs into another from behind, the
fault is in the driving of the rear car, and the driver of the rear car must
satisfy the court that the collision did not occur as a result of his
negligence: Beaumont v. Ruddy, [1932] 3 D.L.R. 75 (Ont. C.A.); Ayers
v. Singh (1997), 85 B.C.A.C. 307 (C.A.) at para. 11.

[74]        
Both counsel made substantial submissions regarding Ms. Marchant’s
stated rate of speed, the length of time from when she first noticed Ms. Langille’s
vehicle and then noticed it was stopped, her slamming on the brakes, and the
severity of the impact ‒
and what conclusions were to be drawn from those matters.

[75]        
There was no evidence to refute Ms. Marchant’s evidence that she
was going under the speed limit, and I find that she was not speeding.

[76]        
Ms. Langille suggests that it is impossible for Ms. Marchant
to have slowed down in these circumstances and yet still cause the significant
damage that was done to Ms. Langille’s vehicle. Ms. Marchant still
says that there was “little time” or “almost no time at all” to stop. Ms. Marchant’s
position is premised on the theory that the crest of the bridge is so steep
that she could not see the northern half until after passing the crest of the
bridge.

[77]        
While I appreciate that the view would be somewhat restricted until
reaching the crest, absolutely no reconstruction evidence was presented by Ms. Marchant
in support of her view that she could not see the obstruction until after that
point and that she had no way to stop before hitting the stopped vehicles
further along the road.

[78]        
In my view, the most reliable evidence as to the location of the stopped
vehicles comes from both Mr. Kitada and Ms. Langille. Both clearly
stated that their vehicles came to rest some ways along the northern end of the
bridge, well after the crest. I find as a fact that the vehicles were stopped
approximately three-quarters of the way across the bridge.

[79]        
Although there was no evidence about what the distance was from that spot
to the crest of the bridge, pictures of the scene assist somewhat in making a
determination. I further find as a fact that the vehicles were stopped at a
point that was well beyond the crest and further than what Ms. Marchant
stated.

[80]        
It is also a relevant factor that, despite the suggestion from Ms. Langille’s
counsel, one does not ordinarily expect that vehicles would be stopped on a
major highway such as the Trans-Canada Highway over the Second Narrows Bridge,
such that Ms. Marchant should have anticipated possible problems and
slowed down to address any such contingencies.

[81]        
The evidence suggests, however that Ms. Marchant’s inexperience and
inattention were partly to blame.

[82]        
First, she admittedly took her eyes off the road to look at the flashing
lights at the north end of the bridge. This would have contributed to her
inattention about what was happening right in front of her.

[83]        
Further, at the time of the accident, she only had an “N” or new driver
designation, although she had been driving under that designation for some
years. She was in violation of that designation by having more than one other
person in the vehicle. Having more people than is allowed may have contributed
to her being distracted. Ms. Marchant did not call the two friends that
were in her car that evening, and although they were said to be intoxicated, it
is possible that one or both of them might have been able to give evidence to
illuminate what happened that night. I draw an adverse inference that their
evidence would not have been helpful to Ms. Marchant’s case.

[84]        
Notably, Ms. Marchant was ticketed by the police for driving
without due care and attention, pursuant to s. 144(1) of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318 and she paid it without dispute.
She also failed the breathalyzer test administered at the time, despite her
contention that she had only one glass of wine some three to four hours
beforehand. There is no evidence about what the reading was or why she may have
failed it. Although she may not have been intoxicated to any degree,
consumption of alcohol could have contributed to her inattention.

[85]        
Ms. Langille contends that Ms. Marchant is wholly to
blame for the collision, citing the principles from McKee
v. Malenfant (1954), 4 D.L.R. 785 (S.C.C.). In that case, the plaintiff
struck a vehicle which had been negligently left running by the defendant on
the side of the road. Mr. Justice Kellock, for the
majority, rejected the argument that the defendant was contributorily
negligent, stating at 788:

…Whether or not
there was a driver who remained in the truck, there was continuing negligence
in the continuing presence of the truck on the road, but it is well settled in
cases of this kind that where a clear line can be drawn between the negligence
of plaintiff and defendant, it is not a case of contributory negligence at all.
This case may therefore be disposed of upon the first ground upon which the
learned trial judge disposed of it, namely, that after the respondent saw the
vehicle in his path, he had plenty of opportunity to avoid it but failed to do
so.

[86]        
The McKee decision was followed in Bowes
v. Coles, 1975 Carswell PEI 63 (S.C.T.D.). In that case, an approaching
vehicle driven by the plaintiff hit a vehicle which had been stopped at the
side of the road by the defendant. The court stated that “[i]n rear-end
collisions, a heavy burden rests upon the driver of the overtaking vehicle”: para. 14.
The court found that the vehicle was plainly visible and that the plaintiff
could have stopped in time to avoid the collision. The plaintiff’s negligence
was found to be the sole cause of the collision despite the defendant’s
negligence: paras. 13-15.

[87]        
There are various factors in this case by
which I am unable to conclude that Ms. Marchant should have been able to
notice Ms. Langille’s vehicle and notice that it was stopped, and stop in
time to avoid a collision. Ms. Marchant has satisfied me that she faced
rather difficult conditions that night on the bridge, which included the
somewhat restricted view arising from the crest of the bridge, the dark
conditions, and the state of Ms. Langille’s vehicle (which I will discuss
in more detail below). I accept that she did her best to stop her vehicle once
she put her mind to what was in front of her.

[88]        
However, I conclude and find as a fact that Ms. Marchant
was not paying proper attention to the road. In particular, she was distracted
by the lights at the end of the bridge. I therefore conclude and find that her
negligence contributed to the occurrence and severity of the collision,
although it was not the sole cause of the accident, as will be discussed below.

2.              
Liability of Ms. Langille

[89]        
Again, I start from the conclusion that it is not necessary to determine
whether Ms. Langille is at fault for the initial collision with Mr. Kitada.
Accidents happen, and it is rarely the case that one has sufficient foresight
to ensure that the immediate result does not cause a hazard to other users of
the road. Conversely, motorists are intuitively aware that accidents happen and
that they may be required to take defensive or evasive action to avoid such
hazards. Accordingly, even if Ms. Langille was at fault for the collision
with Mr. Kitada, there was a sufficient lapse of time leading to the
second collision to assess these matters separately.

[90]        
The central allegation regarding the second accident is that Ms. Langille
was at fault because she failed to move her vehicle to the side of the road and
failed to engage her emergency flashing lights to better identify the presence
of her vehicle to northbound bridge traffic. Ms. Marchant also says that Ms. Langille
could have physically moved to the pedestrian walkway on the side of the bridge
to avoid any risks arising out of remaining in the middle of the bridge. Ms. Marchant
says that Ms. Langille should be assessed between 80-100% responsibility
for the collision.

[91]        
In Fajardo
v. Horianopoulos, 2006 BCSC 147, the court discussed the duties
of a driver in relation to exposing others to risk of harm. In that case, the defendant had collided with a moose,
throwing it into the oncoming lane. The defendant stopped his vehicle. He
attempted to turn on his hazard lights without success. The plaintiff, who
was traveling in the same direction, suddenly came upon the defendant’s unlit vehicle
and swerved into the southbound lane in an attempt to avoid colliding with the
defendant’s vehicle. Even so, he struck the moose and suffered injuries as a
result.

[92]        
The court found
the defendant was not negligent in striking the moose, as he was traveling
safely given the road conditions. However, the court accepted the plaintiff’s
argument that, following the collision with the moose, the defendant was under
a duty to take steps to warn other vehicles of the hazard:

[37]      The driver of a motor car on a highway is under a
duty to conduct himself in a manner that does not, by his fault in the
management of himself or his car, expose other users of the highway to
unnecessary risk of harm. He is at fault, whether in emergencies or in ordinary
circumstances, when he fails to exercise the reasonable care, skill or
self-possession that the attendant circumstances require: see Sinclair v.
Nyehold (1973), 29 D.L.R. (3d) 614 at 618 (B.C.C.A.).

[38]      Mr. Horianopoulos’ stationary truck and the
moose carcass constituted a hazard to other vehicles. I find that Mr. Horianopoulos
had a duty to take reasonable care under the circumstances to warn passing
motorists. The standard is objective. Therefore, although he was, according to
the testimony of both parties, injured and in shock, he remained under a duty
to take reasonable steps in the circumstances.

[39]      Apart from attempting
to put on the truck’s hazard lights, he took no other steps. He did not ensure
that the truck’s lights were on; he did not move the truck off to the shoulder.
A driver exercising reasonable self-possession in the circumstances would have
taken such steps. Accordingly, Mr. Horianopoulos’ conduct was negligent.

[93]        
The decision in Fajardo
turned on the plaintiff’s evidence that had the defendant moved his car
over to the shoulder, the plaintiff still would have driven his car into the
southbound lane to evade the defendant’s vehicle. Had that occurred, the
plaintiff would still have struck the moose carcass and suffered injuries as a
result. Accordingly, the claim was dismissed.

[94]        
This accident occurred around 11:00 pm. It was dark out. Although Ms. Langille
suggested that there was sufficient lighting along the bridge to illuminate
matters, the fact is that the lights are staggered and do not necessarily
illuminate stopped cars in areas between the lights. For example, there was no
evidence that the stopped cars were close to one of the light standards. In
addition, other lights on the bridge, both oncoming and ahead, would of
necessity be a distraction that would increase the risk of not seeing a stopped
car.

[95]        
The first contention is that Ms. Langille did not move herself or
her vehicle off the road before she and Mr. Kitada exchanged information.
In accordance with s. 68(1)(c) of the Motor Vehicle Act, the
parties were obliged to exchange information. It is questionable, however, that
one has to remain at the scene where the risk to yourself, your vehicle and
others coming behind you is in issue. Section 68(1)(a) refers to a “return” to
the scene, and presumably the parties could agree to pull off to a safe area to
complete the exchange or otherwise exchange the information in the safe
pedestrian area. There is no suggestion in the evidence, nor were submissions
made, that Ms. Langille’s vehicle was not driveable.

[96]        
I acknowledge that there is no shoulder on the bridge where she could
have moved the vehicle. As such, if the vehicles were moved to the outside lane
near the concrete abutment, Ms. Langille would have also been at risk of
being hit by drivers travelling in that lane of travel. In my view, however,
this action would have, at least, lessened the risk of collision and certainly,
in hindsight, would have avoided this particular collision. I find as a fact
that Ms. Langille could have driven her car to the side of the bridge
after the collision with Mr. Kitada. She also could have moved to the
pedestrian walkway until it was safe to return to her vehicle or, if not, she
could have called a tow truck.

[97]        
Baker v. Cade, [1999] B.C.J.
No. 239 (S.C.) involved similar facts to this case, in that some
motorists stopped in the middle of a bridge and a motorcyclist collided from
behind. The defendant, Cade, was driving across a bridge when she
experienced an anxiety attack. She engaged her hazard lights and slowed her
vehicle. Once she realized the vehicle behind her was also slowing, she brought
her vehicle to a stop in the travelled portion of the road, even though she
could have pulled over close to the concrete abutment. The vehicle behind driven
by the defendant, MacBurney, came to a stop, but failed to engage its hazard
lights and was struck from behind by the plaintiff on a motorcycle.

[98]        
The trial judge
found it was reasonable for the defendant, Cade, to have slowed and stopped her
vehicle when she felt the oncoming anxiety attack. He found that she was
negligent “in failing to recognize the importance of pulling over as close to
the concrete abutment as possible, so as to reduce the risk to other drivers”: para. 110.
He similarly found the second defendant to have fallen below the standard of
care in failing to engage his hazard lights when coming to a stop on the
roadway: paras. 111-12. Lastly, he found that the plaintiff, Baker, did
not satisfy the onus of showing that he was not at fault, since he had an
unobstructed view of the vehicles and he could have turned to avoid the
collision: paras. 113-18.

[99]        
Ultimately, the
plaintiff’s claim in Baker was dismissed. The court found that the
plaintiff’s negligence was the only “proximate cause” of the accident. Had he
been paying proper attention, the court held, the accident would not have
occurred.

[100]     I agree
that since the highway exits were some way off, there was little practical
means to get entirely off the highway save with Mr. Kitada’s agreement on
a future exchange of information.

[101]     I find
that the time between the collision with Mr. Kitada’s car and the second
collision was only a matter of one or two minutes. I also conclude that it was
reasonable for Ms. Langille to arrange to exchange their information as
quickly as possible on the bridge and then move off the highway. At that time,
however, she could have moved the car over to the side and further down the
slope, which would have lessened the risk of a collision with other vehicles.
She could have then retrieved the documents.

[102]     A further
issue arises because Ms. Langille did not take any measures to activate
her emergency flashers. She said that it did not cross her mind and that she
thought it was pretty bright out. She said she did not “remember all the
rules”.

[103]     Ms. Marchant
cites a number of further cases, in addition to Baker and Fajardo,
in support of an apportionment of liability between the parties where there was
a failure to move a vehicle off or over to the side of the road and/or a
failure to activate emergency flashers.

[104]    
In Udesen
v. Reimer (1994), 92 B.C.L.R. (2d) 58 (C.A.), the defendant’s car stalled while he
waited in traffic at a red light. He was unable to restart the car, so he left
to phone a tow-truck. He did not take any precautions to warn traffic,
including raising his hood or using his emergency flashers. Shortly thereafter,
while travelling the speed limit, the plaintiff approached the intersection in
the same lane the stalled truck was in. The car ahead of the plaintiff’s
suddenly changed lanes, revealing the stalled truck ahead of her, although she
initially thought it was just moving slowly. She then made attempts but was
unable to move into her right-hand lane due to traffic. It was only at that
point that she realized the truck was stationary. She hit her brakes, but to no
avail. The trial judge found the defendant negligent in not taking any
precautions to either move his truck or warn oncoming traffic of the hazard. The
judge found the plaintiff was also negligent in not taking more time to assess
the rate at which she was gaining on the defendant’s vehicle before checking
her mirrors to see if she was able to move into the right-hand lane. He
apportioned liability 85% to the defendant and 15% to the plaintiff.

[105]    
On appeal, the
Court of Appeal found that the plaintiff was “clearly” negligent in two other
respects: (i) she could have applied her brakes in a more timely way, or (ii)
she could have turned into the left-hand turning lane adjacent to her lane of
travel. The court reapportioned liability 60% to the defendant and 40% to the
plaintiff.

[106]    
In Roblin
v. Smith, [1992] B.C.J. No. 267
(S.C.), the plaintiff
was driving his truck through patches of fog in Surrey when he saw his
temperature gauge begin to quickly climb. While looking for a place to pull
over, the engine stopped, so the plaintiff steered towards the right-hand side
of the road. Knowing that there was a ditch just off the road, he was careful
not to pull over too far to the right, as he could not see where the road ended
due to the dense fog. He neglected to activate his hazard lights. He got out of
his vehicle to inspect the truck when the defendant struck the truck from
behind. The court found that the plaintiff’s truck was fully in the travelled
portion of the roadway at the time of the collision. The trial judge, relying
on a contravention of the Motor Vehicle Act, found the plaintiff
negligent for not attempting to move his truck off the roadway. He also found
the defendant negligent for driving too fast given the fog. Liability was apportioned
20% to the defendant.

[107]    
In Burtt
v. Bazinet, [1996] B.C.J. No. 1821
(S.C.), the defendant was driving a large tank truck in slippery road
conditions. He intended to make a left turn off a highway, but was unable to
slow down enough to make the turn. He stopped some distance past the place
where he wanted to turn and began reversing his vehicle to a point where he
could do so. The driver of the vehicle in which the plaintiff was a passenger,
approaching from behind, saw the large truck ahead, but was unable to stop. The
vehicle struck the rear of the truck, which was then stationary.

[108]    
The trial judge
found that the defendant was negligent because the decision to reverse on the
highway in slippery conditions created an obstacle and hazard to all other
users of an already dangerous roadway: para. 27. His negligence was
compounded by his failure to switch on “upper backup lights”. In addition, the
driver of the plaintiff’s vehicle was also negligent because he was driving too
fast for the road conditions. His negligence was compounded by either failing
to keep an adequate lookout to see the defendant at the first opportunity or by
making an unreasonable decision not to slow down when he first saw the
defendant. He was also negligent for failing to either use the shoulder of the
road for added traction or drive into the shallow ditch where there was room
for his vehicle: para. 30. The court was unable to distinguish between the
degrees of fault of the two drivers. Therefore, liability was apportioned
equally.

[109]    
The court in Burtt
referred to Gill et al. v. Canadian Pacific Railway Co. et al. (1972),
26 D.L.R. (3d) 650 (B.C.C.A.). In Gill, the trial judge apportioned
liability equally in circumstances where a driver rear-ended a front-end loader.
The Court of Appeal overruled that assessment and found the driver of the
loader 100% at fault for travelling slowly on an arterial highway in darkness
with “near total lack of adequate rear lighting”. One taillight was emitting no
light and the other was obscured and only visible within 100 feet. The
approaching driver had no reasonable opportunity to take evasive action.

[110]    
The trial judge in
Burtt distinguished Gill on the basis that in Burtt, the
court was “not dealing with darkness, or near darkness, or a visibility problem
such that a following driver can be held blameless for not seeing the
obstructing vehicle earlier”: para. 32.

[111]    
The night
conditions faced by the parties here move the case closer to Gill than Burtt.

[112]    
Ms. Marchant
submits that the facts justify a finding that Ms. Langille was 100% or at
least 80% at fault for the second collision, suggesting that the facts involved
in this case are closest to Gill (100%), Roblin (80%), and Udesen
(60%).

[113]    
I find that Ms. Langille
was negligent in not moving her vehicle to the side of the road and in not
activating her emergency flashers. Both are reasonable and prudent things to have
done and are consistent with the duty to minimize risk of hazards to other
drivers in accordance with Fajardo. I also find that Ms. Langille
had sufficient time between the collision with Mr. Kitada and the
subsequent collision with Ms. Marchant to accomplish these tasks.

[114]    
Ms. Langille’s
failure to undertake either or both of these preventative measures materially
contributed to the accident and also contributed to the severity of the
accident.

3.              
Apportionment of Fault for the Second Accident

[115]     As per
s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, when a
plaintiff contributes negligently to causing his or her own injury, the court
must determine relative degrees of fault. The correct inquiry is whether the
plaintiff failed to take reasonable care for his or her own safety and whether
that failure was one of the causes of the accident: Bradley v. Bath,
2010 BCCA 10 at para. 27.

[116]     The court’s
task is to assess the respective blameworthiness of the parties, rather than
the extent to which the loss may be said to have been caused by the conduct of
each. Fault or blameworthiness evaluates the parties’ conduct in the
circumstances, and the extent or degree to which it may be said to depart from
the standard of reasonable care: Alberta Wheat Pool v. Northwest Pile,
2000 BCCA 505 at paras. 45-46.

[117]     In this case, I have found that Ms. Marchant
should have been paying more attention. If she had been paying better
attention, she may have realized that vehicles were stopped ahead requiring her
to take action by either slowing and stopping her vehicle or changing lanes
before the collision.

[118]     Aggravating factors here include the
night conditions on the bridge, similar to what was faced in Gill, Roblin
and Fajardo. Ms. Langille, who was familiar with the bridge, would
have been aware that other vehicles coming behind and passing over the crest
would have only a certain amount of time to assess the situation and take
measures to either stop or avoid any stopped vehicles. These aggravating
conditions only exacerbated the risk to other drivers in being able to identify
and address that risk. If Ms. Langille had activated her emergency
flashers, the fact that the cars were stopped would have immediately been
apparent. Ms. Langille provided no explanation why she did not do this
simple task beyond that she did not think about it. I appreciate that she was
upset about the collision with Mr. Kitada. But even Mr. Horianopoulos
in Fajardo, who was in shock, was found to have the capacity to make
such a decision.

[119]     The same can be said for Ms. Langille
moving off the road. This could easily have been done even before Ms. Langille
exited the vehicle or certainly when she went back to the vehicle after first
speaking to Mr. Kitada.

[120]     I conclude that Ms. Langille
bears a greater degree of blameworthiness than Ms. Marchant. I apportion
liability 60% to Ms. Langille and 40% to Ms. Marchant.

V.             
Credibility and Reliability of Evidence

[121]     The defendants
say that Ms. Langille’s statements to various people at various times, together
with her testimony at trial, demonstrate that she is not a reliable historian.
They say that her evidence and statements must be considered in that context.

[122]     In
argument, the defendants raised a litany of instances when Ms. Langille’s
evidence conflicted as between direct and cross-examination, as between her
testimony and advice she gave the medical doctors, and as between her history
and what she told the medical doctors, to name a few. Many of the
inconsistencies can be ascribed to the march of time and the fading of
memories, since many of the events go back to the late 1990s. Although she was
often confused about dates, I consider that she was, for the most part, trying
her best to give her evidence.

[123]     There
were, however, repeated instances where Ms. Langille exaggerated her
difficulties arising from the accidents. She advised her own expert, Dr. Fadi
Tarazi, that she was off work for more time than she was. She exaggerated the
extent of her medical treatment when she met with Dr. Richard Loomer, who
was called by the defence. She denied having any previous back and hip problems
to Dr. Tarazi, despite having a history of these problems only some years
before the first accident. Finally, she failed to disclose any psychological or
emotional problems before 2004 to Dr. Levin, also called by the defence,
despite it being clear that she had experienced such difficulties prior to that
time.

[124]     Given the
large number of inconsistencies, and the nature of the inconsistencies, I
conclude that I must approach Ms. Langille’s evidence with some caution,
particularly as regards to her prior symptoms and the extent of her past and
ongoing symptoms.

VI.           
Causation

[125]     Ms. Langille
contends that the three motor vehicle accidents are the cause of both her past
and current physical and psychological injuries.

[126]     The
defendants acknowledge that Ms. Langille was injured in all three
accidents and that she is entitled to be compensated for her injuries. But they
point to evidence that she had chronic low back and hip problems even before
the accidents and that she would probably continue to have some of these
problems even without the accidents. Further, the defendants say that Ms. Langille
had ongoing, recurrent, episodic and depressive conditions before the first
accident and that she would have experienced emotional and cognitive symptoms
even without the accidents.

[127]     The
plaintiff must establish on a balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury. The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the de minimis range. Further, causation need not be
determined by scientific precision: Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 13-17.

[128]     The
primary test for causation asks: but for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[129]    
Causation must be established on a balance of probabilities before
damages are assessed. In this regard, McLachlin C.J.C. stated in Blackwater
v. Plint, 2005 SCC 58 at para. 78:

[78]      … Even though there
may be several tortious and non-tortious causes of injury, so long as the
defendant’s act is a cause of the plaintiff’s damage, the defendant is fully
liable for that damage. The rules of damages then consider what the original
position of the plaintiff would have been. The governing principle is that the
defendant need not put the plaintiff in a better position than his original
position and should not compensate the plaintiff for any damages he would have
suffered anyway: [Athey v. Leonati].

[130]     The most
basic principle of tort law is that the plaintiff must be placed in the
position he or she would have been if not for the defendant’s negligence ‒ no better or worse. Further,
the tortfeasor must take his victim as he finds them, even if the plaintiff’s
injuries are more severe than they would be for a normal person (known as the “thin
skull” rule). However, the defendant need not compensate the plaintiff for any
debilitating effects of a pre-existing condition which the plaintiff would have
experienced anyway (known as the “crumbling skull” rule): Athey v. Leonati at
paras. 32-35.

A.             
The First Accident

[131]     With
respect to the first accident in December 2004, Ms. Langille called the
following expert medical evidence:

a)    Dr. Tarazi,
an orthopaedic surgeon: Dr. Tarazi examined Ms. Langille on September
16, 2009. He concluded that the first accident caused soft tissue injuries and
was the most likely cause of Ms. Langille’s neck, low back and hip strain.
In addition, Dr. Tarazi noted certain bulges at C5/C6 and C6/C7, which
were pre-existing but aggravated by the accident. A protrusion at C4/C5 was
either caused or aggravated by the accident, causing neck pain. Dr. Tarazi
opined that Ms. Langille’s disabilities would improve to a certain extent
over time, but they would limit her physical activity now and in the future. He
described her pain as “chronic”.

b)    Dr. Peter
Joy, a registered psychologist: Dr. Joy examined Ms. Langille on
August 19, 2009. He concluded that Ms. Langille was suffering from a Pain
and Adjustment Disorder that was most prevalent in the spring of 2007. He
stated that the strongest contributor towards that condition was the motor
vehicle accident and the consequences of that accident. He acknowledged,
however, that her separation from Mr. Drewoth was also a contributing
factor. Further, Dr. Joy acknowledged that Ms. Langille is typically
depressed on a seasonal basis in the early winter months, a matter that Ms. Langille
conceded. As a result, he concluded that these disorders were “in partial
remission”. At the time of assessment, she was not significantly depressed or
anxious and she had no active Pain Disorder. Dr. Joy described her as
doing “quite well”. Her prognosis relating to emotional matters was favourable
and no treatment was recommended. Nevertheless, her chronic pain was
“bothersome and somewhat limiting” and the prognosis was “quite guarded for
significant symptomatic and disability improvement”.

[132]     With
respect to the first accident, the defence called the following expert medical
evidence:

a)    Dr. Loomer,
an orthopaedic surgeon: Dr. Loomer saw Ms. Langille on July 22,
2008, some three and a half years after the first accident. Dr. Loomer
diagnosed soft tissue injuries to the upper part of Ms. Langille’s spine
and the base of her neck. He suspected that this was the cause of her
headaches. He also considered that she had impingement syndrome of her left
shoulder and a possible rotator cuff tear. He was unable to say whether the
bulging discs were caused by the accident.

b)    Dr. Alexander
Levin, a psychiatrist: Dr. Levin saw Ms. Langille on November 7,
2012. Dr. Levin said that Ms. Langille already had a history of
recurrent major depressive disorder and that this condition did not arise from
the accident. He found, however, that the accident likely contributed to her
situational stressors.

[133]     The
defendants challenge Ms. Langille’s allegation that she was physically
without medical issues before the accident.

[134]     Dr. Paetkau
was a general practitioner who practiced at a clinic in Gibsons, B.C. Ms. Langille
saw various doctors at that clinic from December 1997 to May 2001 while she and
Mr. Drewoth were living in Gibsons. Those records indicate a number of
medical issues, both physical and psychological, including the following:

a)    A reference to Ms. Langille
feeling “depressed, tearful and stressed” regarding her “abusive” common law
partner (December 12, 1997).

b)    Reports of
stiffness and soreness in her hips bilaterally (September 4, 1998).

c)     A
reference to “difficulties” with her husband and a “lot of emotional concerns”.
The treating doctor advised her to seek counselling and prescribed her Zoloft
(September 17, 1998).

d)    Her chief
complaint was that she was “more depressed and stressed for the past few
months”. Her sleep was “very interrupted” and she was “stressed out”, although
she reported that she had a “good relationship with her partner”. Ms. Langille
reported that she had “chronic” lower back pain, yet she had “not been doing
her exercise program for this”. Ms. Langille indicated that she had
stopped her Zoloft a year prior and wanted to resume. Dr. Paetkau
recommended physiotherapy for an exercise program for her back and prescribed
Zoloft (September 15, 2000).

e)    Dr. Paetkau
again gave her some exercises for her “hip and low back pain” (May 2, 2001).

[135]     Dr. Tarazi
was not told by Ms. Langille that she had any history of chronic low back
pain. Nevertheless, he stated that even accepting the accuracy of Dr. Paetkau’s
records regarding low back and hip pain, he would have discounted such
historical complaints without more information on their severity and because Ms. Langille
had seemed to function quite well in the face of such issues.

[136]    
Further, in relation to any psychological issues, Ms. Langille saw Dr. Martz
just before the first accident. Her entry on November 18, 2004, using the
well-known “SOAP” method, is as follows:

[Subjective]: mood [down] since [common law] breakup August
2004; angry all the time; [history of] alcoholism – not drinking [for] 2 weeks;
not sleeping; no motivation; poor concentration – not suicidal; [previous]
depression; [prescribed] Zoloft [for] 6 [months]; [family history of]
alcoholism.

[Objective]: tearful

[Assessment]: depression, alcoholism.

[Plan]: Zoloft 50 mg 30 pills,
counselling AA.

[137]     Ms. Langille’s
history of obtaining prescription drugs is extensive and goes back to at least
1993. Her history shows various anti-depressants (Prozac/Zoloft) and
anti-anxiety (Ativan/Valium) medications being prescribed right up to the time
of the 2004 accident. This includes Dr. Paetkau’s prescription on
September 15, 2000 and Dr. Martz’s prescription on November 18, 2004 for
Zoloft. Other than her evidence that she obtained prescriptions for Ativan for
flying, she had little, if any, knowledge as to the circumstances under which
she obtained those prescriptions, whether she filled them, and, if so, whether
she took the medication.

[138]     Ms. Langille
had little, if any, memory of her visits to Dr. Paetkau, but she
speculated that the doctor’s notes indicate that she had been very unhappy with
what she termed her abusive relationship with Mr. Drewoth. Similarly, Ms. Langille
had little, if any, memory of her visits to Dr. Martz, but she again
speculated that she would have been sad as a result of her recent breakup with Mr. Drewoth.

[139]     Neither Dr. Paetkau
nor Dr. Martz has an independent recollection of these visits beyond what
is found in the notes. Dr. Paetkau’s notes indicated no problems with
alcoholism. Dr. Martz also rejected the suggested on cross examination
that the reference to alcoholism could have referred to Mr. Drewoth and
not Ms. Langille in light of the fact that Ms. Langille denied any
such problems in the past. Dr. Paetkau acknowledged that low back pain is
a symptom of pelvic inflammatory disease, which was diagnosed during the
September 15, 2000 examination. Ms. Langille attributed any complaints of
low back pain to her menstrual periods.

[140]     Both Dr. Paetkau
and Dr. Martz confirmed their diagnosis of depressive symptoms in
September 2000 and November 2004, respectively, but also confirmed that their
notes do not indicate any diagnosis of a “disorder” relating to depression.

[141]     Counsel
for Ms. Langille pointed out to Dr. Paetkau that other than the
September 15, 2000 note, there was no indication of depression during the later
visits that year and into mid-2001. Counsel for Ms. Langille pointed out
to Dr. Martz, in particular, that other than the November 18, 2004 note,
there was no indication of depression and that, in fact, as of October 2004, Ms. Langille
was looking to begin dating after her breakup.

[142]     Dr. Gurdeep
Parhar, a doctor specializing in occupational matters, who was called by Ms. Langille,
dismissed the records of Dr. Martz as simply situational depression which
was diagnosed and treated at the time. Although he did not consider Dr. Paetkau’s
reports in his report, he similarly dismissed that this was a clinical
diagnosis of depression. He considered that the symptoms of depression before
the 2004 accident were not as severe as after. Dr. Joy similarly dismissed
these prior records as having particular relevance. Both doctors also placed
little significance on Ms. Langille’s extensive history of prescription
medication for depression.

[143]     Dr. Parhar
also indicated in his opinion of September 4, 2012 that the 2004 accident has
caused a “mild traumatic brain injury/concussion syndrome” by reason of her
hitting her head on the head rest and her subsequent report that she felt
“dazed”. This was said to be impacting her concentration. He recommended
further neurological assessment. Dr. Parhar relied in part on the earlier
opinion of Dr. Quirke in a medical legal opinion that was not put into
evidence. Ms. Langille takes the position that Dr. Parhar was
entitled to rely on Dr. Quirke’s opinion and that it would only affect
what weight might be placed on that conclusion: Klimchuk v. Lebrun
(1992), 72 B.C.L.R. (2d) 360 (S.C.) at para. 11.

[144]     However, Dr. Parhar
acknowledged that depression, stress and anxiety may also cause a lack of
concentration. In addition, Ms. Langille had an accident in June 2006
where a heavy mirror fell and hit her on her head. She reported to the
emergency personnel at Lion’s Gate Hospital that she felt “stunned” as a
result. Dr. Parhar dismissed the mirror incident, stating that Dr. Quirke’s
opinion and the earlier report of Ms. Langille immediately after the first
accident were more significant.

[145]     Dr. Joy
acknowledged that previous depression was in part predictive of future
depression, in that it would make a patient more vulnerable to future occurrences
of depression.

[146]     At the end
of the day, the parties were not terribly far apart in terms of describing Ms. Langille’s
injuries from the first accident. Those include soft tissue injuries to her
neck, shoulder and low back/hip. By Dr. Tarazi’s report of September 2009,
these were considered chronic but were expected to gradually improve over time.

[147]     The first
major point of contention arose from Dr. Parhar’s diagnosis of traumatic
brain injury, which injury was not evident on the MRI. This diagnosis appears
to have principally arisen because Ms. Langille said that her head hit the
headrest on impact. In any event, Ms. Langille does not contend that she
suffered a brain injury that affected her ongoing abilities. She says that it
was not significant and that she recovered from this injury. I accept Dr. Parhar’s
diagnosis that she had a mild concussion and that she recovered quickly from
that injury after the first accident.

[148]     The second
major point of contention arose from Dr. Parhar’s diagnosis of depressed
mood, anxiety and adjustment disorder. It is well taken that Dr. Parhar’s
expertise was not in the psychological/psychiatric field. Dr. Joy, a
psychologist, and Dr. Levin, a psychiatrist, testified for Ms. Langille
and the defence, respectively. Dr. Joy testified that when he saw Ms. Langille
in 2009, she was not depressed and that her mood seemed normal. Dr. Levin
concluded that she did not develop any new major mental illness as a result of
the first accident. Ms. Langille agrees that depression was not a factor
arising from the first accident. Accordingly, Dr. Joy and Dr. Levin’s
conclusions are accepted that this accident did not cause any new emotional or
psychological disorders.

[149]     Again, by
the time of the second accident in December 2009, some five years later, Ms. Langille
said that she had recovered to the extent of 70-80%.

B.             
The Second and Third Accidents

[150]     With
respect to the second and third accidents, Ms. Langille called further
medical evidence:

a)    Dr. Tarazi
examined Ms. Langille after these accidents on November 16, 2010 and
September 6, 2012. He concluded that the second and third accidents further
damaged Ms. Langille’s neck, low back, and hips. In addition, they caused
injuries to her knee and left shoulder. He again described her condition as
suffering from “chronic pain”. Her C7 neck fracture had healed. Dr. Tarazi
considered that she was totally disabled for about seven months after the
second accident and that she had partially recovered by the time of the third
accident. Following the third accident, she was disabled for a period of one
week, and is now partially disabled on a permanent basis due to the injuries
sustained in all three accidents. Dr. Tarazi opined that her depression
and chronic pain was a “significant” aspect of her problems as of late 2012 and
recommended that she see a psychologist or psychiatrist.

b)    Dr. Joy
examined Ms. Langille again on October 1, 2012, almost three years after
the second accident and almost two years after the third accident. He concluded
that Ms. Langille’s pain, anxiety and depression had increased
significantly. He diagnosed her as suffering from a Pain Disorder, which
diagnosis assumed both a physical and psychological contribution to pain. Since
his last report, he found that there was reported and measured disability
related to pain, together with increased anxiety and depressive symptomatology.
There was no diagnosis of any anxiety or depression disorder. Dr. Joy
stated that, in his opinion, the combined effect of the second and third
accidents had brought on more severe psychological symptoms and impairments. Dr. Joy
stated that this condition had become “chronic”. A cure was not expected.

c)     Dr. Parhar
found that Ms. Langille had decreased range of motion in her cervical and
lumbar spine. Dr. Parhar agreed with Dr. Tarazi’s previous diagnosis
that Ms. Langille’s injuries to her neck and back area were caused by the
motor vehicle accidents. He considered this condition to have plateaued and
become permanent.

[151]     Dr. Corcoran
also testified as to Ms. Langille’s course of treatment following the
second and third accidents.

[152]     With
respect to the second and third accidents (and including the first
accident), the defence also called Dr. Levin. Similar to his conclusions
regarding the first accident, Dr. Levin said that Ms. Langille
already had a history of psychological and emotional disturbances and that she
would have continued to suffer from recurrent intermittent episodes of
depression even in the absence of the motor vehicle accidents. He found,
however, that the accident likely contributed to her situational stressors. He
concluded that the accidents did not result in Ms. Langille developing any
new major mental illness or psychiatric condition that would require a separate
psychopharmacological or psychotherapeutic intervention.

[153]     I find
that Ms. Langille suffered the following injuries ‒ and aggravation of injuries ‒ in both the second and
third accidents:

a)    She suffered a
C7 fracture, which has increased the risk of osteoarthritis.

b)    She broke her
nose. It healed after a couple of months, although she still has a scar that
she considers a blemish.

c)     She
suffered a right-ankle sprain, but it was fully healed in a couple of months.

d)    She injured her
knee. It resolved quickly, although there remain unsightly broken veins that
cause her some concern.

e)    Her abdominal
bruising was sore and tender for several months.

f)      Her
left shoulder was very painful in the first couple of months, causing her to
avoid sleep on the left side. Ms. Langille still describes significant restriction
in moving her arm and shoulder, which affects her ability to complete certain
personal care tasks.

g)    Her headaches
lasted for six months and lessened after that time. Now, she only gets them a
couple of times per month and they last for a few hours. She takes
over-the-counter pain medication for them.

h)    She suffered
soft tissue injuries to her neck, back and hip areas, which remain painful to
this day. Although Ms. Langille had back problems before the first
accident, which were no doubt related to the quite physical work she was doing
at the time, they did not impair Ms. Langille’s function at that time or
even after. I accept Dr. Tarazi’s evidence that the back pain now suffered
by Ms. Langille arises from the accidents.

i)      
She suffered various symptomology arising from the accidents: difficulty
sleeping; very moody and irritable; depression; little energy outside of work;
and difficulty concentrating and memory problems. As noted above, there is a
difference of opinion as to whether Ms. Langille has a Pain Disorder (per Dr. Joy)
or is simply experiencing stressors arising from the accidents that is not a
Pain Disorder (per Dr. Levin). In my view, it is not necessary to resolve
this medical debate. I accept Ms. Langille’s evidence that she is
experiencing these symptoms and that they arise from the motor vehicle
accidents. Despite Ms. Langille having had depression symptoms in the
past, these clearly arose in the circumstances of her unfortunate relationship
with Mr. Drewoth, which has been over for some time. I accept Dr. Joy’s
report that this symptomology, including the depression, arises from the
physical pain which Ms. Langille continues to experience to this day (per
the report of Dr. Tarazi). The comments of the court in Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC
82 are apposite:

[91]      While she had suffered brief episodes of
depression in the past, I am satisfied they were reactive depressions and were
fully resolved at the time of the accident. I have no doubt that because she
has suffered depression in the past, she was vulnerable to depression, but she
is the thin-skulled plaintiff here rather than a crumbling skull
plaintiff. 

[154]     In
conclusion, Ms. Langille is currently suffering from a permanent partial
disability, which involves ongoing chronic pain. This ongoing pain has also
given rise to certain emotional or psychological issues, as noted above.

[155]     I also
accept Dr. Levin’s opinion that while Ms. Langille may have
experienced a mild traumatic brain injury or concussion in the second accident,
she suffered no long-term cognitive, psychological or emotional consequences
from that injury.

VII.          
Damages

A.             
Non-Pecuniary Damages

[156]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide.
Each case depends on its own unique facts: Trites v. Penner, 2010
BCSC 882 at paras. 188-189.

[157]    
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the Court
of Appeal outlined the factors to be considered when assessing non-pecuniary
damages:

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

(a)        age of the
plaintiff; 

(b)        nature of the
injury; 

(c)        severity and duration of
pain; 

(d)        disability; 

(e)        emotional suffering;
and 

(f)         loss or impairment of
life; 

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

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

(h)        impairment of
physical and mental abilities;

(i)         loss of
lifestyle; and

(j)         the plaintiff’s stoicism
(as a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, 2005 BCCA 54).

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

[159]      In terms
of the factors, I would note:

a)    Ms. Langille
is 53 years old.

b)    She suffered
soft tissue injuries in the first accident and was off work for a month. She
completed a rehabilitation program over approximately five months, after which
she felt substantially better. She continued to have some symptoms over the
next five years leading to the second accident.

c)     Ms. Langille
suffered more severe injuries in the second accident. In addition to broken
bones, she suffered soft tissue injuries. All these injuries resulted in her
being significantly disabled during the months following the accident. She
returned to work after approximately six months on a graduated return to work
program and was back at regular duties two months after that. She underwent
physiotherapy sessions. She continues to suffer from symptoms to this day,
notably chronic pain in her neck, back and hip. She also has shoulder problems.

d)    Ms. Langille’s
injuries from the second accident were exacerbated by the third accident, which
occurred only eight months later. She only missed a few days off work and she
recommenced physiotherapy sessions.

e)    Ms. Langille
remains partially disabled to this day, in large part due to her chronic pain,
which in turn has caused certain psychological or emotional issues.

f)      Ms. Langille
has gone from an active, fun-loving person to someone who is more sedentary and
reserved. This change of personality has been noted by her co-worker, Mr. Stewart,
her friends, Ms. Viani and Ms. Stubbs, and her partner, Mr. Dooris.
Her injuries have affected her ability to care for herself. They have also
affected her personal relationship with Mr. Dooris.

g)    Finally, I
consider that Ms. Langille has showed considerable stoicism in the face of
her medical problems.

[160]     The
parties were not far apart on the appropriate amount for a global award.

[161]     Ms. Langille seeks the sum of $130,000, citing in support:

a)    Ashcroft v. Dhaliwal, 2007 BCSC 533: A
58-year-old homemaker and clerical worker suffered injuries in two successive
motor vehicle accidents. In the first, she sustained soft tissue injuries to
her neck, shoulders, back, hips, upper arms and legs. She experienced
headaches, dizziness, and numbness in her left arm and hand. The second
accident intensified her neck and back pain and led to chronic pain. In
addition to the physical injuries, the plaintiff experienced intense anxiety,
symptoms of depression and symptoms consistent with post-traumatic stress
disorder (“PTSD”). She had become totally disabled and could not work. The
court awarded damages at $120,000.

b)    Marois v. Pelech, 2009 BCCA 286: A
formerly active 49-year-old single mother and restaurant worker suffered a
musculoligamentous strain to her neck, mid back and low back. She went on to
develop a chronic myofascial pain condition and significant anxiety and
depressive symptoms. Her full and busy life was lost to her over the six years
prior to trial, and would continue to be impacted. Her prospects for further
improvement were found to be uncertain. The court upheld the award of $130,000.

c)    
Morlan v. Barrett,
2012 BCCA 66: A 46-year-old plaintiff was injured in two motor vehicle
accidents on January 6, 2007. The first accident was a head-on collision; the
second was a rear-end collision. She suffered chronic pain in her neck,
shoulders, and upper back, along with headaches. Her symptoms could be reduced,
but not eliminated by medication. The court’s award of $125,000 was upheld on
appeal as generous but defensible.

d)    Smusz: Russell J. assessed the measure
of non-pecuniary damages relating to injuries sustained by a 46-year-old mother
who was an unskilled laborer. In addition to physical injuries, the plaintiff suffered
PTSD and continued to suffer insomnia, occasional nightmares, depression and
chronic pain three years after the accident. The court awarded $100,000. This
included damages for loss of housekeeping capacity, which were assessed at $10,000.

e)    Fox v. Danis, 2005 BCSC 102: A plaintiff
sought damages arising from the permanent injuries to her neck and lower back. These
injuries had an adverse effect on the plaintiff’s quality of life. She was in
pain every day and was unable to get a full night’s sleep due to the pain.
There was a realistic likelihood that she would become depressed as a result of
the chronic pain. The plaintiff was awarded $100,000.

f)     
Rizzottti v. Doe,
2012 BCSC 1330: The 49-year-old plaintiff suffered injuries to her left leg,
hip and lower back. She also had severe bruising across her neck, chest and
abdomen. In addition, the plaintiff experienced depression and anxiety,
including ongoing depressive symptoms consistent with a diagnosis of chronic
adjustment disorder with depressed mood. The court awarded $110,000.

g)    Zawadzki v. Calimoso, 2011 BCSC 45: It
was the evidence of all the experts that the plaintiff, a 44-year-old
automotive technician, had suffered a significant injury to his elbow, causing
osteoarthritic changes that were likely to progress. He was also found to be
suffering from significant and continuing disabling back pain. His injuries
were found to have fundamentally changed his ability to engage in activities
that previously gave him pleasure. As a result, he suffered from depression,
anxiety and alcoholism. Non-pecuniary damages were assessed at $144,000 after
taking into account a failure to mitigate.

[162]    
The defence takes the position that $100,000 is an appropriate
global assessment, on the basis that the injuries are indivisible as between
the joint tortfeasors, subject to the contributory negligence issue: Bradley
v. Groves, 2010 BCCA 361 at para. 32.

[163]    
For a global assessment, the defence cites Caldwell v. Ignas,
2007 BCSC 1816. In that case,
the plaintiff was injured in an accident, including fracturing one or two
vertebrae in his upper back. He also had soft tissue injuries to his neck and
mid back. He was found to have suffered chronic pain and permanent injuries.
The court found that the injuries resulted in restrictions in the capacity to
perform a number of specific functions, to participate in various activities, and
to enjoy a quality of life that he had prior to the accident.

[164]    
On a global basis,
I am satisfied that an award of $110,000 would be appropriate. Given my
conclusion that Ms. Langille is contributorily negligent in respect of the
second collision, however, it is necessary to award individual sums in respect
of the three accidents. I would note, in any event, that some injuries, such as
the fracture of Ms. Langille’s C7 vertebrae, are only attributable to the
second accident.

[165]    
The defence has
made submissions on an appropriate allocation, as follows:

a)    First accident – $30,000-$35,000,
citing Fisher v. Stone, 2008 BCSC 430; Chan v. Lee, 2008 BCSC 594; and Frech v. Langley,
2012 BCSC 1230;

b)    Second
Accident – $50,000, citing Unger
v. Bailey, 2012 BCSC 932; and Jang v.
Khera et al.,
2002 BCSC 60; and

c)     Third
Accident – $15,000, citing Dhillon
v. Ashton, 2009 BCSC 1109.

[166]     Ms. Langille
made no submissions on the allocation between the three accidents in the event
of a finding against her on the second accident. In my view, the cases cited by
the defence are within reasonable ranges given the injuries caused by the three
accidents and their effect on Ms. Langille.

[167]     I
accordingly award non-pecuniary damages for the accidents as follows:  first –
$35,000; second – $55,000; and third – $20,000.

B.             
Past Loss of Earning Capacity

[168]     Compensation
for past loss of earning capacity is based on what the plaintiff would have,
not could have, earned but for the injury that was sustained: Rowe v.
Bobell Express Ltd., 2005 BCCA 141; and M.B. v. British Columbia,
2003 SCC 53.

[169]     Pursuant
to s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231,
a plaintiff is entitled to recover damages for only his or her past net income
loss. This means that, in the ordinary course, the court must deduct the amount
of income tax payable from lost gross earnings: Hudniuk v. Warkentin,
2003 BCSC 62.

[170]     The burden
of proof of actual past events is on a balance of probabilities. An assessment
of loss of both past and future earning capacity also involves the
consideration of hypothetical events. The plaintiff is not required to prove
these hypothetical events on a balance of probabilities. Rather, the future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Athey v. Leonati
at para. 27.

[171]     The
parties agree that in relation to the first accident, Ms. Langille was off
work until January 14, 2005 and that she lost $1,685.75 in regular wages and
$940.80 in overtime during that period. She also lost $842.88 in wages during
her graduated return to work. Accordingly, following the first motor vehicle
accident, she lost wages at Securicor totalling $3,673.71 gross/$3,067.55 net.

[172]     In
addition, from December 26, 2004 to February 12, 2005, she lost seven shifts at
the Squarerigger Pub, for a total of 57 hours or $513 gross/$428.36 net.

[173]     The
parties are also agreed that following the second motor vehicle accident, Ms. Langille
was off work at Securicor for approximately five months resulting in lost wages
of $30,017 gross or $24,043 net.

[174]     There is
no past income loss associated with the third accident.

[175]     The main
dispute between the parties relates to Ms. Langille’s claim for past
income loss of $75,000. This claim arises from her contention that but for the
first accident, she would have continued to work her second job at the
Squarerigger Pub while working for Securicor or alternatively, she would have
worked more overtime with Securicor.

[176]     Ms. Langille’s
history demonstrates that she typically had a variety of jobs at one time. She
had a number of jobs while working in Alert Bay and in Edmonton. I accept that Ms. Langille
has displayed a strong work ethic in the past, which in those years has been
typically motivated by her need to be economically self-sufficient.

[177]     Even when
she secured her full-time position with Securicor in March 2003, she quickly
obtained her part-time bartending job at the Squarerigger Pub. She held that
position until November 2005 when she says that she was unable to continue with
the heavy lifting. She says that but for the first accident, she would have
continued to work another job, which she described as her “savings” account.

[178]     Ms. Langille
relies on the expert report of PETA Consultants Ltd. dated September 25, 2012.
In that report, Darren Benning sets out a calculation of income loss for the
period from December 19, 2004 to December 30, 2012. By that calculation, he has
assumed that Ms. Langille would have continued working at the pub in
addition to her job at Securicor. Mr. Benning calculates that her
estimated loss was $80,557 from the pub and $52,799 from Securicor, for a total
of $91,577 net of taxes and Employment Insurance (EI).

[179]     In
response, however, the defence makes the compelling argument that it is not
likely that Ms. Langille would have continued with her bartending job. The
defence says that Ms. Langille stopped working at the Squarerigger Pub for
two reasons: first, she did not need to work two jobs because she was making
enough money at Securicor to meet her needs; and second, her schedule at
Securicor did not allow her to continue working at the pub. Both arguments have
merit in my view.

[180]     The
evidence demonstrates that when Ms. Langille returned to B.C. in 2002, she
was anxious to obtain employment to pay her bills. Her past jobs had all been
fairly low paying jobs.

[181]     During
2003 and 2004, when she had both jobs, she was earning approximately
$3,000-$3,200 per month, which she considered was sufficient to meet her needs.
The 2003 payroll records from Securicor show that she was making $11 per hour
when she started and that her monthly earnings were rarely over $2,300. During
that same time frame, she was making $9 per hour working at the pub and earning
approximately $800 per month.

[182]     The
defence argues that she worked at more than one job before the accidents because
of need, not because she enjoyed working at more than one job. I agree.

[183]     After the
time off work immediately after the first accident, Ms. Langille continued
working at both jobs and worked almost the same number of hours that she had
been working previously. Thus, Ms. Langille asserts this income loss not
on the basis that she continued working the same hours, but that she had
difficulty in completing her more physical tasks at the pub due to her
injuries. The question then becomes, did she continue to have a need to work
such that she would have chosen to work at the pub in any event?

[184]     I agree
with the defence submissions that Ms. Langille stopped working at the pub
as soon as she was able to make enough to meet her needs working at her
preferred job at Securicor.

[185]     She testified
that by the time she stopped working at the pub, she was very happy with her
job at Securicor. Importantly, she knew that there were opportunities for
advancement within Securicor, and that her income was increasing and would
continue to increase.

[186]     Ms. Langille’s
hourly rate at Securicor increased over the years after the first accident: $11
per hour in March 2003 to $13.89 per hour at the end of 2005; various rates in
the $14 to $17 range throughout 2006; $15 to $18 per hour in 2007; $15 to $23
per hour in 2008; $17 to $24 per hour in 2009; and $21 to $24 per hour in 2010.

[187]     The
plaintiff testified that her income from the Securicor job alone was about
$4,000 per month in 2006, an amount more than her combined incomes in 2004 and
2005 as a result of her increasing hourly rate at Securicor and increased overtime
hours. Ms. Langille’s income tax returns show: 2006 gross employment
income of $46,166, or an average of $3,847 per month; 2007 gross employment
income of $50,090, or an average of $4,174 per month; 2008 gross employment
income of $58,871, or an average of $4,905 per month; and 2009 gross employment
income of $61,113, or an average of $5,092 per month.

[188]     Ms. Langille
confirmed on cross-examination that the decision to work less at the pub after
the accident was her choice. She also confirmed that this decision was based on
her preference to work at her easier job at Securicor where she made more
money.

[189]     The other
issue regarding the job at the pub was Ms. Langille’s acknowledgement that
there would have been scheduling conflicts as between her job at Securicor and
her job at the pub. The plaintiff gave evidence about her various shifts at
Securicor at various times, confirming that her schedule was varied, subject to
change, and included afternoon and graveyard shifts which would have conflicted
with her pub job.

[190]     I find
that Ms. Langille made a considered decision to quit her job at the pub as
a result of her quite reasonable decision to focus her attention on her job at
Securicor, and not as a result of the first accident. She has failed to
establish any loss arising from her decision to forego her job at the pub.

[191]     In the
alternative, Ms. Langille asserts that she would have worked more overtime
at Securicor but for the accidents.

[192]     After Ms. Langille’s
return to work after the first accident, she continued working full time for
the four and a half years before the second accident. When she returned in
February 2005, she signed up to work overtime. She testified that she was
working “a lot of overtime” in 2006. The payroll records confirm that she was
working between 10 and 20 hours of overtime most months during 2005 and 2006,
basically the same amount of overtime that she worked in 2004.

[193]     Ms. Langille
worked full time at Securicor from February 2005 until December 2009. The
evidence also discloses that she occasionally worked overtime before the second
accident, and she continued to occasionally work overtime after her return to
work in June 2010.

[194]     The
payroll records indicate that her overtime hours varied from as low as 15 hours
per month to a high of 48 hours per month in the year before the second
accident in December 2009. However, she worked overtime every month after she
returned to work, from a low of five hours up to a high of 31 hours in November
2010.

[195]     Ms. Langille
asserts that she would have been working on average 20 hours per month in
overtime with Securicor but for the accidents. Initially, after the first
accident, she was offered or signed up for overtime and tried to do it. But she
found it difficult and painful when she tried, or she had to refuse it
altogether. Given her work ethic and her enjoyment of her job at Securicor, I
accept that she would have worked this amount of overtime. I also accept her
submissions and find that her injuries arising from the accidents prevented her
occasionally from working to this level. She testified that she was often tired
and unable to continue or unable to come in for extra shifts because of her
injuries. I also accept that there was abundant overtime at Securicor for her
to have the opportunity to take such work.

[196]     However,
Ms. Langille did not produce any payroll records after January 2011 to
support the actual amount of overtime she did work. No explanation was advanced
for the failure to provide documentation to support the contention that she was
not working as much overtime as her stated average of 20 hours per month.

[197]     The only
evidence as to the proper calculation comes from Mr. Benning’s report. He
was also not provided any income information for 2012 (despite his report being
prepared in September 2012). He therefore simply assumed the same figures from
2011 for that year. He has taken the 2009 income at Securicor at $60,465 and
adjusted the figures for 2010-2012. He then deducted this figure from her
actual income. For 2010, that gives rise to the income loss figure which I
already accepted above – $30,017. For 2011 and 2012, the income loss is said to
be $6,518 per year. Applying appropriate deductions for EI and income tax, that
provides a net figure of $4,522 per year.

[198]     Mr. Benning’s
calculations provide a somewhat accurate comparison for the years 2010-2012,
but they do so on the basis of the T4 income as between those years. They do
not provide any breakdown as between Ms. Langille’s regular income, about
which there is no issue, and the overtime that she worked for the purpose of
comparing the former figure to what she could have worked. Mr. Benning’s
figures therefore do not illuminate the issue as regards Ms. Langille’s
overtime income for 2011-2012.

[199]     Given the
state of this evidence, I am unable to conclude that Ms. Langille has
proved any income loss arising from any inability to work overtime after
returning to work for Securicor.

C.             
Loss of Future Earning Capacity

[200]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and 2) if
so, what compensation should be awarded for the resulting financial harm that
will accrue over time? The appropriate means of assessment will vary from case
to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Pallos
v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260
(C.A.); Pett v. Pett, 2009 BCCA 232.

[201]     Insofar as it is 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 if the accident had not happened
with the plaintiff’s likely future working life after the accident has
happened: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 32.

[202]     The
plaintiff must always prove that there is a real and substantial possibility of
a future event leading to an income loss: Perren v. Lalari, 2010 BCCA
140 at para. 32. If that burden is met, then there are two possible
approaches to assessing the loss of future earning capacity: the “earnings
approach” from Pallos; and the “capital asset approach” in Brown.
Both approaches are correct and will be more or less appropriate depending on
whether the loss in question can be quantified in a measureable way: Perren at
para. 32.

[203]     The earnings approach involves a form of math-oriented
methodology such as (i) postulating a minimum annual income loss for the
plaintiff’s remaining years of work, multiplying the annual projected loss by
the number of remaining years, and calculating a present value, or (ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos;
Gilbert v. Bottle, 2011 BCSC 1389 at
para. 233.

[204]     The capital asset approach involves considering
factors such as whether the plaintiff: (i) has been rendered less capable
overall of earning income from all types of employment; (ii) is less marketable
or attractive as a potential employee; (iii) has lost the ability to take
advantage of all job opportunities that might otherwise have been open; and
(iv) is less valuable to herself as a person capable of earning income in a
competitive labour market: Brown; Gilbert at para. 233.

[205]    
The principles that apply in assessing loss of future earning capacity
were summarized by Low J.A. in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

[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), 84 B.C.L.R. (3d) 158, 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.

[206]     Recently, in Parker v. Lemmon, 2012 BCSC 27, Mr. Justice
Savage summarized the principles from Perrin to be applied:

[42]      The approach to such
claims is well set out in the decision of Garson J.A. in Perren v. Lalari,
2010 BCCA 140 at paras. 25-32, which I summarize as follows:

(1)   A plaintiff must first
prove there is a real and substantial possibility of a future event leading to
an income loss before the Court will embark on an assessment of the loss;

(2)  A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation;

(3)   A plaintiff may be able
to prove that there is a substantial possibility of a future income loss
despite having returned to his or her employment;

(4)   An inability to perform
an occupation that is not a realistic alternative occupation is not proof of a
future loss;

(5)   It is not the loss of
earnings but rather the loss of earning capacity for which compensation must be
made;

(6)   If the plaintiff
discharges the burden of proof, then there must be quantification of that loss;

(7)   Two available methods
of quantifying the loss are (a) an earnings approach or (b) a capital asset
approach;

(8)   An earnings approach
will be more useful when the loss is more easily measurable;

(9)   The capital asset
approach will be more useful when the loss is not easily measurable.

[207]     Ms. Langille
concedes that a plaintiff’s past earnings are a significant
factor that must, at law, be considered in assessing a loss of income earning
capacity and will be a starting point in the assessment of the loss: Vaillancourt v. Molnar Estate, 2002 BCCA 685. She says that she has a
long history of working more than full-time hours, and that it is unreasonable
to deny any claim on the basis that she is making more money now. In addition,
although she concedes that her job is secure, she says that this fact does not
inevitably lead to the conclusion that she will have no loss.

[208]     She says that but for the accidents, the plaintiff would have
succeeded in her employment and would be in position to take advantage of the
abundant overtime available to her. One way or another, the pattern of working
a job and a half would have continued. This was her pre-accident habit, and the
law is that pre-accident employment is assumed to continue but for the
collisions. She says that she is presently working about 40 hours a week, whereas
before the accidents she was working closer to 60 hours a week.

[209]     She also says that the other aspect of the loss arises from the
possibility of her losing her present job. Ms. Langille did not graduate
from high school. She used to do stucco/construction, but her injuries would
prevent her from doing that type of physical job given her partial disability.
Further, she can no longer work in pubs or beer and wine stores. Ultimately,
she can no longer do overhead work, all of which she did previously.

[210]    
I turn firstly to consider whether Ms. Langille
has established a real and substantial possibility of an income loss. Ms. Langille
relies on Garcha v. Duenas, 2011 BCSC 365 as an example of a similar
situation. In that case, a machinist was permanently partially disabled, as I
have found Ms. Langille to be. He was able to return to work full time,
but only as a result of his employer’s accommodation of his physical
restrictions: para. 75. Madam Justice Boyd found:

[82]  Thus
I find that the plaintiff faces the real possibility of a future income loss on
several fronts: If Mr. Ranu or some other charge hand at Avcorp is no
longer able to accommodate his physical restrictions and requires that he
perform a full range of machinist’s duties, he may well lose this employment.
Even if he does not lose this employment, if there are periods when there will
be opportunities for significant overtime work, it is unlikely he will be able
to work those longer hours. If he loses his employment at Avcorp, or if there
are layoffs at Avcorp and he looks for alternative or supplementary work
pending a resumption of work at Avcorp, then I expect he will very likely have
difficulty finding alternative employment or supplementary employment as a
machinist. Relying on both the plaintiff’s and Mr. Ranu’s evidence, I find
that the machinist work at Avcorp is very much on the “lighter’ end of the
scale and that machinist work in other plants often involves much heavier work.
Based on the evidence of Dr. Parhar and Mr. Shew I find that the
plaintiff would not be able to perform that heavy work.

[83]
Finally I expect that in the event the plaintiff retires at age
65, he will likely not be able to pursue the many machinist jobs he would have
likely searched for and obtained, even in his older years. I say this since, in
my view, the plaintiff has, both in the past and on an ongoing basis, demonstrated
a very strong work ethic and a desire to optimize his earnings at every
opportunity.

[84]  I
find that the plaintiff has proven there is a significant possibility of any of
these future events occurring, which would all obviously result in a pecuniary
loss. This is not the case of a white collar worker complaining he is unable to
return to the heavy labour job he performed in his youth. This is the case of a
senior journeyman machinist who has been rendered unable to perform the full
scope of the work in his lifelong career of choice.

[93]  On a review of all of
the evidence, I am satisfied that the plaintiff has proven a real and
substantial possibility of the many different future events outlined earlier,
all of which would lead to an income loss. I am satisfied these events are not
limited to a few occasions when the plaintiff will have flare-ups of symptoms.
Rather I find that he is permanently partially disabled and now effectively
excluded from performing heavy machinist work and any substantial amount of
overtime work. This will substantially reduce his overall employability, make
him less marketable and less competitive as an employee, and finally, less
valuable overall.

[211]     Ms. Langille’s impairment has been the subject of comment from
her doctors.

[212]     Dr. Parhar stated that he expected her to have difficulty
bending, twisting, carrying, squatting and reaching. Repetitive activities with
her left shoulder would also be difficult. He identified that Ms. Langille
stated that she has some difficulty in her current position at Securicor due to
these difficulties, a matter which was confirmed in her evidence and by the
evidence of Mr. Stewart. Both gave evidence that Mr. Stewart
accommodated her limitations.

[213]    
In his September 2009 report, Dr. Tarazi
stated:

… Ms. Langille
will be able to carry out her job duties as they do not involve any significant
lifting. However if she had to change careers, then I would recommend her to
settle for light or medium type physical activities. Highly strenuous
activities at work such as heavy lifting, squatting and kneeling will likely
aggravate her pain. … This pain will also affect her choice of career as she
will not be able to [do] highly strenuous activities.

[214]    
In his September 2012 report, Dr. Tarazi
reiterated his earlier statements:

Ms. Langille
is presently working for G4S in an armored vehicle. She works on a shift that
involves little squatting, kneeling or heavy lifting. In my opinion, she should
continue with these shifts in order to minimize the risk of flare-up of the
pain in her neck, back, left shoulder, hips and knees. However, in the future,
if she had to change careers, she would be limited to sedentary or light jobs
that involve little squatting, kneeling, heavy lifting, sudden movements of her
trunk and torso. Overhead work would also aggravate her left shoulder. Any more
strenuous activities will likely aggravate her pain throughout all of these
joints. These limitations will likely be on a permanent basis.

[215]    
Ms. Langille also presented the functional
capacity report prepared by Marco Aquila of Core Medical Centre dated January
16, 2013. Mr. Aquila was asked to opine on Ms. Langille’s functional
limitations and her ability to return to work as an armored car
guard/custodian. Essentially, he found that Ms. Langille was able to
fulfill all of her required job functions:

1. What are Ms. Langille’s
functional limitations?

Ms. Langille did not demonstrate the
ability to safely lift, and perform above-shoulder work.

Lifting: Ms. Langille’s
performance on the maximum isoinertial lifting evaluation did not demonstrate
the ability to safely lift 50 lbs on an occasional basis.

Above-shoulder work: Ms. Langille’s performance on upward reaching repetitive
movement test, and the overhead to knee transfer test demonstrated her
intolerance to above-shoulder work. She reported immediate pain symptoms in the
right arm and shoulder with this activity.

Ms. Langille also reported limitations
in her ability to perform low-level work and crouching. Dr. F.
Tarazi (Orthopaedic Surgeon) stated that she continued to complain of
significant pain which was aggravated by squatting, kneeling, heavy lifting,
sudden twisting movements and impact activities. Her low back pain had been
ongoing for the past eight years and therefore was most likely chronic and
would likely continue on an ongoing basis. It would continue to cause her
functional limitations in the future (Dr. Tarazi, 2012).

2. Is Ms. Langille able to return to
work as an Armored Car Guard (Custodian)? If she cannot, what parts of the
position is she unable to do?

Ms. Langille’s target job was
identified as having a physical demand level of Medium. The Physical Demand
Characteristics of Work chart (Matheson 1983) describes Medium as consisting of
lifting 20 to 50 pounds for up to one-third of the hours worked daily. Ms. Langille
did not demonstrate the ability to meet this Medium physical demand
characteristic of work. Furthermore, Ms. Langille did not demonstrate the
ability to perform above-shoulder level work without an increase in reported
pain symptoms in the right arm/shoulder.

It is this evaluator’s opinion
that Ms. Langille may be able to return to work as
an armored-car guard/custodian with job duty modifications. Modifications
should include accommodations for activities that involve the use of her right
arm/shoulder, neck, and lower back. More specifically, job duties which involve
lifting, above-shoulder work, and squatting/crouching should be limited.
Lastly, restrictions regarding her reported inability to perform twisting/spinal
rotation and low-level work should also be taken into consideration.

[216]     The defence challenges this claim. It says that the evidence
establishes that Ms. Langille is in a job that she enjoys. She has
received good reviews from her employer and there are no concerns about her job
performance. She has every intention of remaining employed with Securicor.

[217]     I agree that the evidence establishes that Ms. Langille is
fairly secure in her current position and that barring unforeseen
circumstances, she should remain so. In addition, while the defence points to
the current chiropractic treatment as assisting Ms. Langille’s condition
and states that her condition is “improving”, the overwhelming medical evidence
is that Ms. Langille’s pain is continuing and that it is a permanent
disability that she will live with for the rest of her life. That Ms. Langille
has for the most part been able to cope with her employment duties is, in my
view, in large part due to her stoicism in the face of ongoing pain, the
imperative of not jeopardizing her prospects of remaining in what she calls a
good and good-paying job, and most importantly, the accommodation that she
currently enjoys from her co-worker.

[218]     The focus of this enquiry is not whether Ms. Langille is able
to continue in her job. The real question is whether her capacity to
work has been impaired: Pallos at para. 41. In Pallos, the
plaintiff was disabled from his previous duties, although he continued to be
employed at the same income. Conversely, in Perrin, the claim was
disallowed because there was no evidence that the plaintiff was limited in
performing any realistic alternative occupation: para. 33.

[219]     The evidence here clearly indicates that Ms. Langille is either
coping with pain or limited in what she can perform at Securicor. At present,
she is coping with some accommodation from her co-worker, Mr. Stewart.
That might or might not be the case in the future depending on who is working
with her. In addition, Ms. Langille testified to other types of jobs
within Securicor that would be more physically strenuous and that these would
present further challenges to her. Her evidence is, in effect, that she is not
able to take advantage of the overtime that she would usually work, although
there is no documentation to support that contention.

[220]     Finally, the authorities indicate that when considering capacity,
the court must consider the possibility that the plaintiff will not continue in
that position. If Ms. Langille should lose her position, the medical and
functional capacity evidence, as above, clearly indicates that certain
occupations will be foreclosed to her. She has limited education, and in the
past, before obtaining her position with Securicor, her typical occupations
involved some physicality. Stucco work and bartending are all inappropriate
occupations for her. It is these types of jobs which Ms. Langille would
typically have to find in the event that her employment ceased.

[221]     I find that Ms. Langille has proved that her injuries have
resulted in a real and substantial possibility of a future income loss. I turn
to the matter of the amount of an award.

[222]     Ms. Langille asserts that there is a loss of a capital asset
and seeks an award of $175,000.

[223]     Given that Ms. Langille is continuing in her job at Securicor,
I consider that the capital approach makes more sense than taking an income
approach. Nevertheless, I am in the dark as to how Ms. Langille arrives at
this figure, save that it appears to be the same figure as was awarded in Garcha
at para. 95, also on a capital asset approach. In Garcha, however,
the court considered the potential income loss of overtime, which was a major
basis for the contention that there would be an income loss: paras. 88-89.
While the court ultimately assessed the loss rather than apply a mathematical
calculation (as required in accordance with the authorities), it appears that
the court was guided somewhat in coming to an award by the overtime loss
figures.

[224]     It is well taken that an award is an “assessment”. However, an award
must still be based on the evidence. The courts have consistently used
mathematical calculations as “guideposts” to provide some parameters towards
arriving at that assessed figure: Morris v. Rose Estate (1996),
23 B.C.L.R. (3d) 256 (C.A.) at paras. 20-24.

[225]    
Recently, the Court of Appeal in Morgan v.
Galbraith, 2013 BCCA 305 emphasized the necessity under the capital asset
approach of considering the Brown factors and making appropriate
findings of fact as to the nature and extent of the loss of capacity:

[54]  The
economic evidence relied on by Mr. Morgan quantified lifetime earnings of
a sport coach in Oregon at $883,004. The judge did not explain the basis of
his $700,000 assessment. This amount approximates 80% of lifetime earnings
of a coach, notwithstanding that Mr. Morgan is now employed as a coach. I
do not mean to imply that the assessment must be a mathematical calculation.
Rather, my point is that there must be findings of fact on which to base the
assessment. Here, the reasons for judgment on this point are not sufficient
to permit appellate review. The judge gave no hint as to the factual basis
on which he reached the conclusion that on these facts $700,000 was an
appropriate measure of Mr. Morgan’s future damages. The judge did
compare this case to another similar case, but, in my view, that would not be
an appropriate way to assess what is essentially a pecuniary damage award. I do
not consider that it is appropriate for this Court to infer from the judge’s
reasons the necessary findings of fact in order to substitute a different award
or to affirm the correctness of the award.

[55]  The
judge could well have chosen the earnings approach given that Mr. Morgan
was likely to pursue a career in sport regardless of the accident and that
doing so after the accident was possible but with limitations. The judge made
no findings concerning the extent of those limitations. As I have concluded
that the appropriate disposition of this appeal is to remit the question of the
assessment of damages for future loss of earning capacity to the judge, I will
leave to the trial judge the question of the appropriate approach to adopt. To
reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the
judge has already found that there is a loss of future earning capacity under
the Perren test. He need not reconsider that finding. But it will be
necessary for him to revisit the assessment on a proper factual underpinning.

[56]  If
the assessment is still to be based on the capital asset approach the judge
must consider the four questions in Brown in the context of the facts of
this case and make findings of fact as to the nature and extent of the
plaintiff’s loss of capacity and how that loss may impact the plaintiff’s
ability to earn income. Adopting the capital asset approach does not
mean that the assessment is entirely at large without the necessity to explain
the factual basis of the award: Morris v. Rose Estate (1996), 23
B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad
litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63
B.C.A.C. 145.

[Emphasis added.]

[226]     I find that Ms. Langille has met all four of the Brown
factors in that she: has been rendered less capable overall of earning
income from all types of employment; is less marketable or attractive as a potential
employee; has lost the ability to take advantage of all job opportunities that
might otherwise have been open; and is less valuable to herself as a person
capable of earning income in a competitive labour market.

[227]     In
terms of guideposts, no calculations were provided except for Mr. Benning’s
calculation that Ms. Langille’s loss was $6,518 for each of 2011 and 2012,
based on a comparison between her 2009 income and her income for those years.
As I have stated, this calculation has its limitations in terms of separating
out the overtime issue. Again, in terms of the overtime issue, one would have
expected to see records to indicate the actual amount of overtime she worked in
the last two years, as opposed to what she said she would have done. The reason
for this omission may, in fact, be that she has been working on average 20
extra hours of overtime every month. I note that for October and November, 2010
and January, 2011, the overtime hours were approximately 18, 32, and 17,
respectively.

[228]     Mr. Benning’s
further PETA Consulting report dated September 26, 2012 indicates that a
multiplier for both actuarial and economic contingencies is $6,443 per $1,000
of income loss, which accounts for Ms. Langille working until she is 65.
That calculation yields a total loss of $42,000.

[229]     I was not provided with any evidence about what jobs Ms. Langille
might be qualified for in the event that her job at Securicor ended, and what
salary differences might apply.

[230]     Doing the best I can with the available evidence, I award the sum of
$50,000. This amount is based on my assessment of loss of some minimal overtime
at Securicor over Ms. Langille’s remaining working life there. It also
accounts for the risk of loss arising from any other jobs at Securicor and also
the risk that Ms. Langille may have to find a lower paying job if she
should leave Securicor. I have also accounted for positive and negative
contingencies in respect of this figure, including that Ms. Langille may
in the future be able to complete as much or most of the overtime she wanted,
that she may remain in her current position with Securicor for her remaining
working life, and that she may secure a job elsewhere with the same income: Tsalamandris
v. McLeod, 2012 BCCA 239 at paras. 50-53. Finally, this amount
considers the impact of the second accident and Ms. Langille’s share of
responsibility for that accident, as I have found above.

D.             
Costs of Future Care

[231]     The
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore her to her pre-accident condition, insofar
as that is possible. When full restoration cannot be achieved, the court must
strive to assure full compensation through the provision of adequate future
care. The award is to be based on what is reasonably necessary on the medical
evidence to preserve and promote the plaintiff’s mental and physical health: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.); Williams v. Low, 2000
BCSC 345; Spehar et al. v. Beazley et al., 2002 BCSC 1104.

[232]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1) there must be a medical justification for claims for cost of
future care; and (2) the claims must be reasonable: Milina v. Bartsch
at 84.

[233]     Future
care costs must be justified both because they are medically necessary and are
likely to be incurred by the plaintiff. The award of damages is thus a matter
of prediction as to what will happen in future. If a plaintiff has not used a
particular item or service in the past, it may be inappropriate to include its
cost in a future care award: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

[234]     The
extent, if any, to which a future care costs award should be adjusted for
contingencies depends on the specific care needs of the plaintiff. In some
cases, negative contingencies are offset by positive contingencies and a
contingency adjustment is not required. In other cases, however, the award is
reduced based on the prospect of improvement in the plaintiff’s condition or
increased based on the prospect that additional care will be required: Tsalamandris
at paras. 64-72. Each case falls to be determined on its particular facts:
Gilbert at para. 253.

[235]     An
assessment of damages for cost of future care is not a precise accounting
exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.

[236]     Ms. Langille
claims $5,000 for physiotherapy sessions. However, Ms. Langille had not
seen the need for any such treatment for the year prior to the commencement of
the trial. This therapy was recommended by both Dr. Tarazi and Dr. Parhar
for flare-ups, as required. In my view, a reasonable sum for any required
further treatments, at the agreed rate of $60 per session, is $2,500.

[237]     Ms. Langille
claims $5,000 for chiropractic sessions. Those treatments started in late
summer of 2012. Dr. Tarazi recommended that she continue with these treatments
in September 2012. Dr. Corcoran agreed. Her chiropractor, Dr. Campbell,
testified that she visits about two to three times every two weeks and that the
visits would continue at that rate for about six months, after which time they
would diminish. I agree with defence, however, that Dr. Campbell’s
treatment plan is not medically justified, as required per Milina v. Barsch.
The defence says that Ms. Langille should continue to have these
treatments, but only for a few months and on a gradually diminishing basis. I
award the sum of $3,000 for these visits.

[238]     Ms. Langille
claims $5,000 for psychologist or psychiatric sessions. This is said to be
based on Dr. Joy’s recommendation in his November 2012 report that Ms. Langille
undertake a short course of therapy directed at acceptance of and adjustment to
her pain condition. Yet Ms. Langille was clear in her evidence that she
does not want or believe that she needs such therapy. In many past instances,
she was recommended for therapy. It was even available to her at no cost
through her employer’s program (in fact, that program still exists and is
available to her now). She declined to attend in all cases, save for a short
program of counselling in 2005. I conclude that while Ms. Langille may
benefit from such counselling, this is not likely to be incurred by her given
her past history: Izony at para. 74;
and Coulter (Guardian ad litem) v. Leduc, 2005 BCCA 199 at paras. 84-86.
I decline to award any amount for this therapy.

[239]      Ms. Langille
claims $5,000 for medication. Her medical doctors, including Dr. Tarazi,
have recommended medication as needed. Ms. Langille testified that she
does not take any prescription medicine and does not like to take prescription
medicine. In fact, the last expense claimed relating to such medication was in
April 2012. She does take over-the-counter medication almost every day. In my
view, there are likely to be times when Ms. Langille will need to and will
choose to take prescription medication. I consider the sum of $1,000 to be
reasonable for these items.

[240]     Ms. Langille
claims $1,800 for a gym membership (or $180 per year for 10 years) and $600 for
a personal trainer (or 10 sessions). Despite this recommendation from her
doctors, particularly Dr. Parhar and Dr. Tarazi, at no time has Ms. Langille
shown any inclination to attend a gym or obtain such assistance. I do not
consider that she is interested in such a program. I note, in any event, that a
physiotherapist could assist in showing Ms. Langille exercises to
strengthen her body to alleviate the pain. Accordingly, I reject these claims.

[241]     Ms. Langille
claims $300 for sleep aids, including a cervical pillow and mattress cover.
Both were recommended by Dr. Parhar. The agreed cost for these items is
$225, which is allowed.

[242]     Finally, Ms. Langille
claims $5,000 for the cost of future domestic services. Dr. Tarazi stated
in his September 2012 report that Ms. Langille was able to continue to do
all her household chores in her condominium, albeit at a slower pace. He stated
that only if she moved into a large house with a yard would she need assistance
with inside and outside chores and possibly renovations. Ms. Langille is
coping now. In my view, it is speculative to consider the possibility of her
moving into a larger house. Based on the evidence, if that were to happen, it
would only be if she moved in with Mr. Dooris. In those circumstances, he
would then be available to share in the household tasks, particularly the ones
that require more physicality. I conclude that this claim has not been
established.

[243]     Accordingly,
I have allowed the sum of $6,725 for future care. That amount must be adjusted
for the possibility that such treatment arose from the second accident, for
which Ms. Langille shares liability. The amount of $3,500 is allowed.

E.             
“In Trust” Claims

[244]     In the
three and a half or four months after the second accident and her release from
hospital, Ms. Langille was only able to manage her personal care and
household chores with the assistance of Mr. Dooris and Ms. Viani.

[245]     For the
first month, Ms. Viani tried to go over to Ms. Langille’s house for a
couple of hours each night after her own work. She brought her food, cooked,
tidied up the house, did laundry, and helped her to get to the bathroom. After
the first month, her visits tapered off to about once a week for a couple of
hours.

[246]     Mr. Dooris,
who lives on the Island, had, prior to the second accident, seen Ms. Langille
every two weeks for about three to four days each time. After her release from
hospital, Mr. Dooris took her to Campbell River to his home. At that time,
he did everything for her ‒
including bathing, cleaning, cooking, and generally making her comfortable. Ms. Langille
went back to her home after Christmas 2009. Upon her return in January 2010, Ms. Langille
obtained some professional assistance after the second accident. The cost of
this care was claimed as a special expense and has been allowed in this action.

[247]     After her
return to the Lower Mainland, Mr. Dooris continued to visit Ms. Langille
every two weeks, spending eight to ten hours per day on those two weekends per
month caring for her.

[248]     Ms. Langille
claims the sum of $10,000, which is derived from the admitted cost of in-home
care of $24.50 per hour multiplied by 360 hours for Mr. Dooris and 80
hours for Ms. Viani. The number of hours spent is not admitted, but the
defence does concede that both Ms. Viani and Mr. Dooris spent some
time caring for Ms. Langille in the aftermath of the second accident.

[249]     Ms. Langille
cites Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63 (S.C.) at
paras. 242-253. In that case, Madam Justice Levine, as she then was, found
that an award will be justified if the services go beyond those a relative
would ordinarily provide. In addition, the award must be reasonable, and in
accordance with Milina v. Bartsch, it must be modest.

[250]    
The defence cites Frankson v. Myre, 2008 BCSC 795, which summarizes the principles
in relation to such claims, following more recent B.C. Court of Appeal
authority. In this case, the “in trust” claim arose from care provided
by the plaintiff’s mother, Mrs. Frankson, to the plaintiff during the
period following the accident. Mr. Justice Savage stated:

[50]      The law of “in trust” claims is
governed by the principles set out by the British Columbia Supreme Court in Bystedt (Guardian ad
litem of) v. Bagdan 2001 BCSC 1735 at para. 180, aff’d 2004 BCCA 124.

[51]      The six relevant factors are:

(a)        the
services provided must replace services necessary for the care of the plaintiff
as a result of a plaintiff’s injuries;

(b)        if the
services are rendered by a family member, they must be over and above what
would be expected from the family relationship;

(c)        the
maximum value of such services is the cost of obtaining the services outside
the family;

 (d)       where
the opportunity cost to the care-giving family member is lower than the cost of
obtaining the services independently, the court will award the lower amount;

(e)        quantification
should reflect the true and reasonable value of the services performed taking
into account the time, quality and nature of those services;

(f)         the
family members providing the services need not forego other income and there
need not be payment for the services rendered.

[52]      An example of the application of the factors in Bystedt
occurs in Dufault v. Kathed Holdings Ltd., 2007 BCSC 186. In Dufault,
the services provided by the plaintiff involved toileting, bathing, transfer
from wheelchair to shower and toilet, laundry, cooking, feeding, and taking the
plaintiff to visit health care providers.

[53]      In his analysis, Cohen
J. sets out the factors. He reviews the various “in-trust” decisions at
paragraphs 175 and 176, and concludes that the services provided to the
plaintiff did not go above and beyond what would be expected to be performed
out of a sense of love, friendship or family duty. In the result, the “in
trust” claim in Dufault was dismissed.

[251]     In Frankson,
the court did not find that the services provided by the plaintiff’s mother
went beyond what might be performed out of a sense of love, friendship or
family duty: paras. 55-56.

[252]     The
defence submits that the care provided by Mr. Dooris and Ms. Viani
was exactly the type of care considered by the court in Frankson and Dufault.
It was care performed out of a sense of love, friendship, or family duty. While
I acknowledge that they would have cared to some extent for Ms. Langille,
I disagree that their level of care was within the normal bounds of “love,
friendship or family duty”.

[253]     Ms. Viani
no doubt had her own life, but she took specific pains to come over every night
after work for an entire month. Her level of care for Ms. Langille goes
well beyond what friends, even best friends, might expect. Similarly, Mr. Dooris’
care of Ms. Langille went above and beyond the usual care that he might
have provided over the Christmas 2009 holiday or even on the weekends when he
later came to visit.

[254]     While neither
Mr. Dooris nor Ms. Viani suffered any economic loss in the sense of
missing time off work, I do not consider that is a controlling factor given the
principle from Bystedt that the person providing the services “need not
forego other income”.

[255]     I accept
the accuracy of the number of hours spent by Ms. Viani and Mr. Dooris.
However, from the amount claimed must be deducted the amounts that they would
have spent caring for Ms. Langille out of “love, friendship or family
duty”. In Bystedt (B.C.S.C.) at para. 184, the court applied a 30%
discount for this factor.

[256]     Accordingly,
I award the sum of $7,000 for this claim, which is further reduced by 60% due
to her share of liability. The net award is $2,800.

F.             
Special Damages

[257]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina v.
Bartsch at 78. The parties agree that Ms. Langille has incurred
special damages of $1,783.61, arising from the first accident in respect of
medication, physiotherapy and massage.

[258]     Further
special damages of $6,463.48 were incurred after the second accident. I
consider that the fairest, although arbitrary, allocation of the expenses
following the third accident is to divide those expenses as between the second
and third accident. Accordingly, the sum of $4,762.30 is awarded for the second
accident and $1,701.18 is awarded for the third accident.

VIII.        
Summary

[259]     In summary, damages are awarded as follows:

(a) Non-pecuniary damages:

 First Accident –                                 $35,000;

 Second Accident –                             $22,000
(40% of $55,000);
Third Accident –                                $20,000;

(b) Past Income Loss:

 First Accident –                                   $3,495.91;

 Second Accident –                              $9,617
(40% of $24,043);

(c) Diminishment of earning capacity:  $50,000;

(d) Cost of future care: $3,500;

(e) “In Trust” Claims: $2,800
(40% of $7,000);

(e) Special damages:

First Accident –                                   $1,783.61;

Second Accident –                              $1,904.92
(40% of $4,762.30);
Third Accident –                                  $1,701.18;

IX.           
Costs

[260]    
Ms. Langille is entitled to pre-judgment interest on the past
income loss, “in trust” claims and special damages awarded. Ms. Langille
is also entitled to her costs, unless the parties seek to make further
submissions in that respect. If further submissions are to be made, they must
be filed within 30 days of the delivery of this judgment.

“Fitzpatrick
J.”