IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130826

Docket: M125953

Registry:
New Westminster

Between:

Rowena Cruz

Plaintiff

And

Tahira Rashid,
Sabir Rashid and Satnam Gill

Defendants

Before:
The Honourable Madame Justice Dardi

Reasons for Judgment

I.                
INTRODUCTION

[1]            
This proceeding arises from a motor vehicle accident that occurred on March 8,
2008 (the “Accident”).

[2]            
On December 1, 2010, the plaintiff filed a notice of
discontinuance, dismissing the claim against the defendant Satnam Gill. The
remaining defendants have admitted liability. This action addresses Ms. Cruz’s
claim for damages.

II.              
FACTS

[3]            
Before addressing the damages analysis, I will turn to the facts
established on the evidence. I will address the facts in the following
order:

(a)   General
background and Ms. Cruz’s circumstances prior to the Accident;

(b)   The
Accident and post-Accident circumstances;

(c)    Ms. Cruz’s
circumstances at trial;

[4]            
I will then summarize the expert evidence and set out my conclusions on Ms. Cruz’s
injuries.

[5]            
My findings on these matters will then guide my determination of Ms. Cruz’s
damages.

[6]            
The defence called no evidence at trial.

A.             
General background and Ms. Cruz’s circumstances prior to the
Accident

[7]            
Ms. Cruz was 54 years old when this matter came to trial. She is
married and has four children. Her youngest child is 16 years old.

[8]            
In 1981, Ms. Cruz obtained a university degree in electronics and
communication engineering in the Philippines. She worked for 17 years in the
Philippines as a supervisor for a telephone company.

[9]            
Ms. Cruz immigrated to Canada from the Philippines on April 20,
2002.

[10]        
In Canada she initially worked as a labourer in a manufacturing company.
In 2004 she obtained a license to sell insurance and other financial products
for Sun Life. She was essentially self-employed and her remuneration was
primarily commission-based and tied to her clients’ premium payments.

[11]        
In January 2006, Ms. Cruz completed a six-month training course to
qualify as a resident care aide. She commenced employment as a care aide at the
Fleetwood Care Facility (“Fleetwood”) in April 2006. Ms. Cruz was a casual
on-call employee and she primarily worked evening or night shifts. The work
offered to her as a casual status employee was offered on the basis of
seniority. Ms. Cruz’s caseload varied depending on the particular unit she
was working in and the shift she was working. Her shift was usually 7.5 hours.

[12]        
As a residential care aide, Ms. Cruz assisted residents with the
activities of daily living, including dressing, bathing, feeding, and personal
care. Her duties included lifting, transferring, and ambulating patients as
required. Residents who varied in size and weight were required to be pushed in
wheelchairs. For some residents, the use of a mechanical lift was required for
transfers. The evidence supports a finding that this was a physically demanding
job.

[13]        
From April 2006 to approximately March 2007, Ms. Cruz worked at
both Fleetwood and in her Sun Life position. In 2007 she stopped taking shifts
at Fleetwood because her manager at Sun Life gave her an inventory of existing
clients as an incentive. As a result of this incentive Ms. Cruz decided to
concentrate her efforts on Sun Life rather than pursuing work at Fleetwood.

[14]        
However, by December 2007 Ms. Cruz’s earnings from Sun Life had not
substantially increased. As a result of her financial circumstances, Ms. Cruz
resolved to resume taking shifts at Fleetwood. She hoped that by doing so, she
would gain seniority at Fleetwood. Her ultimate goal was to obtain a permanent
part-time position at Fleetwood, which would provide her with a reliable source
of income. Ms. Cruz’s stated intention was that if she obtained a
permanent part-time position with Fleetwood, she would nonetheless continue her
work with Sun Life.

[15]        
Prior to the Accident, Ms. Cruz enjoyed cooking for family and
friends, embroidery cross- stitching and camping in the summer with her family.
She regularly walked with her husband on the weekends and after dinner.

B.             
The Accident and post-Accident circumstances

[16]        
On March 8, 2008, Ms. Cruz was in the front passenger seat in
a van driven by her husband, travelling eastbound on 92nd Avenue. While in the
intersection of King George Highway and 92nd Avenue, waiting to execute a left
turn, their vehicle was struck on the front of the driver’s side. A vehicle,
driven by the defendant Tahira Rashid, which had run the light on King George Highway,
had collided with a third vehicle travelling in the westerly direction on 92nd
Avenue. The defendant was travelling at 60 kilometres per hour and did not
apply the brakes before the collision. After first colliding with the third
vehicle, the defendant’s vehicle then collided with the front driver’s side of
the Cruz vehicle. The Cruz vehicle rotated and was pushed backwards. The Cruz
vehicle, which was relatively new, sustained significant enough damage that it was
considered a total loss.

[17]        
At the time of impact, Ms. Cruz was turned and facing her husband
in the driver’s seat. Ms. Cruz was wearing a lap and shoulder belt.

[18]        
At the scene Ms. Cruz was attended to by emergency health personnel
who transported her to the hospital. She was released from the hospital later
that evening.

[19]        
It is uncontroversial that Ms. Cruz sustained injuries in the
Accident.

[20]        
Ms. Cruz described herself as being in shock at the scene of the
Accident. Her recollection was that when she left the hospital, her neck,
shoulders, and back hurt. She recalls in particular that her abdomen and
shoulders were painful in the region which had been in contact with her seat
belt.

[21]        
Ms. Cruz described the symptoms she experienced after the Accident
as including headaches, numbness in her jaw, and pain and stiffness in her neck
and shoulders, primarily on the right side. Ms. Cruz also experienced severe
pain and spasm in her low back and, within a few months from the Accident, a
shooting pain in her buttocks, radiating down the right leg. She also
experienced numbness and tingling in her right thigh and buttock if she walked
longer than 15 to 30 minutes. The pain in her jaw eventually abated, but her
other symptoms persisted.

[22]        
Ms. Cruz’s sleep was regularly disturbed because of the pain in her
neck, shoulders and lumbar area. Notably, nothing in the evidence indicates
that Ms. Cruz experienced any difficulties with sleep prior to the
Accident.

[23]        
After the Accident her family doctor prescribed anti-inflammatories and
muscle relaxants, but Ms. Cruz found that those medications did not
provide her with relief. He also prescribed various types of pain medication, including
Tramadol, but Ms. Cruz found the medication difficult to tolerate.

[24]        
Ms. Cruz attended 29 physiotherapy sessions, from April 1,
2008 until April 6, 2011.

[25]        
Ms. Cruz resumed working with Sun Life approximately one month
after the Accident. I accept her evidence that she was having difficulties
at that time with concentration and focus.

[26]        
Ms. Cruz was unable to carry on as a care aide after the Accident.
She attempted a return to work to Fleetwood in July 2009, because her husband
had lost his job, but she found the return to work too difficult. She did return
to working at Fleetwood in approximately November 2009 because of the financial
needs of her family. Ms. Cruz continued to experience persistent and
worsening symptoms and described herself as “crying in pain” after her shifts.
In order to alleviate her pain symptoms after completing her shifts at
Fleetwood, she took hot showers and her husband’s Tylenol 3 medication.

[27]        
Ms. Cruz was eventually diagnosed with right-sided L4-5
radiculopathy-compression of the nerves in her spine. Her worsening symptoms prompted
her to undergo a lumbar laminectomy/discectomy surgery in January 2011. I note
that after her surgery, she saw Dr. Robbertse on almost a monthly basis regarding
her Accident-related injuries.

[28]        
After her surgery, Ms. Cruz attended physiotherapy and a
rehabilitation program which alleviated some of her symptoms. Ms. Cruz also
attended 15 massage therapy sessions, from April 16, 2011 to August 16,
2011.

[29]        
In 2011 and 2012 Ms. Cruz regularly used various prescription
medications, including narcotic analgesic medication such as Tramacet, for
alleviating her pain. She also continued her regular use of sleeping
medication.

[30]        
She has not worked as a care aide since her surgery.

C.             
Ms. Cruz’s circumstances at trial

[31]        
As of the date of trial Ms. Cruz no longer experiences pain
radiating down her leg. However, she reports a sense of hollowness and
discomfort in her low back. She also experiences intermittent symptoms of
tingling and numbness in her right thigh with walking, sitting and standing for
more than 15-30 minutes. According to Ms. Cruz, she continues to experience
persistent neck and shoulder pain symptoms. She also continues to suffer from
sleep disturbances.

[32]        
As of trial she was consuming two types of prescription medication on a
daily basis: Gabapentin to alleviate her pain and Temazepam to assist with
sleeping.

[33]        
She testified that currently she does not engage in any exercise
programs because she finds it too painful.

[34]        
After recuperating from her surgery, she has continued to work as an
insurance advisor for Sun Life. She has not returned to working at Fleetwood.

D.             
Medical Evidence

[35]        
Ms. Cruz called Dr. Heran, a neurosurgeon, Dr. Dhawan, a
physiatrist, and her family doctor, Dr. Robbertse. The key aspects of
their respective reports are summarized below.

1.              
Dr. Robbertse

[36]        
Dr. Robbertse has been Ms. Cruz’s family doctor since December
2004. His report is dated September 22, 2009. He attended at trial for
cross-examination.

[37]        
Ms. Cruz saw Dr. Robbertse on March 12, 2008, shortly
after the Accident. On examination he found that rotation, flexion and
extension in both her lumbar spine and her cervical spine, were painful and
limited. He referred Ms. Cruz for physiotherapy. On subsequent visits he
prescribed various medications.

[38]        
He notes that in the late summer and early fall of 2008, Ms. Cruz reported
worsening symptoms despite exercise therapy and pain medication. On examination
he found indications of right-sided L4-5 radiculopathy. He ordered a CT scan
and referred her to Dr. Heran for a surgical opinion.

2.              
Dr. Heran

[39]        
Dr. Heran, is a well-qualified neurosurgeon. He assessed Ms. Cruz
on May 21, 2009 and September 8, 2009, and performed a lumbar
decompressive laminectomy/discectomy surgery on Ms. Cruz on January 24,
2011. Ms. Cruz then attended for post-operative follow-ups on March 1,
2011, June 2, 2011 and February 2, 2012. Dr. Heran’s report is
dated April 8, 2012. Dr. Heran attended at trial for
cross-examination.

[40]        
In his report Dr. Heran notes that in November 2009, a CT scan of Ms. Cruz’s
lumbar spine demonstrated “focal pathology at L4-5, with a broad based disc
bulge and ligamentum hypertrophy resulting in severe spinal stenosis”. He
diagnosed a nerve root impingement on the right side, which accounted for her
right-sided L5 radiculopathy. The compressed nerve in her spine caused her
pain, numbness and tingling in her right leg.

[41]        
In Dr. Heran’s opinion, the Accident precipitated the symptoms
which required her surgery. In his report, he concludes as follows:

The motor vehicle accident of March 8,
2008 is directly responsible for the onset of symptoms in Ms. Cruz.
Although she has a congenitally narrowed spinal canal at the L4-5 level, had
the motor vehicle accident not occurred she would likely have remained
asymptomatic in this regard. Therefore the motor vehicle accident is
directly responsible for symptom development in Ms. Cruz despite the
congenitally narrow canal. (Emphasis added.)

[42]        
In Dr. Heran’s opinion, the long-term prognosis for Ms. Cruz
is guarded. He notes that although she has demonstrated improvement following her
surgery, she is not symptom-free.

3.              
Dr. Dhawan

[43]        
Dr. Dhawan is a physical medicine and rehabilitation doctor, who
assessed Ms. Cruz on January 23, 2009 and February 28, 2012. He
prepared three reports dated January 23, 2009, February 28, 2012 and April 11,
2012. He testified by way of deposition.

[44]        
Dr. Dhawan opined that the decompression surgery was required
because of the injuries Ms. Cruz sustained to her lumbar spine in the
Accident. He also opined that had Ms. Cruz not been involved in the 2008
Accident, she more likely than not “would have remained asymptomatic regarding
her back and leg symptoms”.

[45]        
It is also his opinion that the Accident caused soft tissue injuries to Ms. Cruz’s
cervical and lumbar spine resulting in facet strain and muscular spasms.

[46]        
In his February 2012 report, Dr. Dhawan notes that Ms. Cruz’s sciatica
and spinal stenosis symptoms have, for the most part, been alleviated. However,
he notes mild mechanical back pain and symptoms of slight spinal stenosis with
prolonged walking. He also notes that Ms. Cruz continues to experience
neck pain and pain with cervical extension, and that she is tender over the
cervical spine. He concluded that “she is likely to live with long-term pain in
her neck and to a lesser extent the back”.

E.             
Conclusions regarding Ms. Cruz’s current condition

[47]        
The defendants concede that Ms. Cruz was injured in the Accident
and that the Accident was a materially contributing factor to her need for back
surgery. However, the defendants vigorously challenge the reliability and
credibility of Ms. Cruz’s evidence. The defendants emphasize that Ms. Cruz
has had a very good result from her surgery; their overarching submission is
that she has exaggerated the degree and severity of her current symptoms in a
self-interested manner. They urge the Court to approach her evidence with
caution.

[48]        
This is not a case where the plaintiff’s subjective reporting of her
symptoms is key to the assessment of the plaintiff’s condition. In this case
I find objective criteria for assessing Ms. Cruz’s injury. It is common
ground that Ms. Cruz’s imaging results showed the injury Ms. Cruz
sustained to her lumbar spine in the Accident. It is also uncontroversial that the
constellation of symptoms Ms. Cruz experienced from that injury was severe
enough that her condition required surgery.

[49]        
Nonetheless, the assessment of the severity of Ms. Cruz’s post-operative
symptoms requires that the Court assess the credibility and the reliability of
her evidence regarding those symptoms.

[50]        
Accordingly, I turn to comment on Ms. Cruz’s credibility.
I have considered all of the defendants’ submissions on the
inconsistencies in Ms. Cruz’s evidence that they allege point to her lack
of credibility and reliability. I do not intend to address all of the
areas in which it is argued that there were inconsistencies in Ms. Cruz’s testimony.
Many of the matters that were characterized as inconsistencies I do not
find were in fact inconsistencies.

[51]        
As a starting point, I note that the assessment of Ms. Cruz’s reliability
was more complicated, because English is not her first language. I concluded
at times that some of the alleged shortcomings in her evidence were a result of
her sometimes restrained and undetailed  style of communication, rather than an
attempt to be deliberately evasive or misleading. Her evidence must be
considered in this context.

[52]        
The defence points out that Ms. Cruz, at her examination for
discovery, acknowledged that prior to the Accident, after long hours of sitting
at her Sun Life job, she occasionally had a sore or stiff back that she described
as “the next morning it’s gone”. Ms. Cruz did not recall this testimony at
trial. This is, in my view, of no moment. There is no evidence that Ms. Cruz
ever sought or received any form of treatment or required medication in this
regard, except for an episode in 2005 for which she saw Dr. Robbertse. Later
in these reasons, I will return to the back symptoms she reported in 2005.

[53]        
At trial, Ms. Cruz described two workplace incidents at Fleetwood
which caused her significant pain. At her examination for discovery, she
testified that she had not sustained any new injuries at Fleetwood. The defence
contends that this illustrates her evasiveness. I disagree. In my view,
this reflects her inclination to answer only what is specifically asked and
only to respond to what was her literal understanding of the question.

[54]        
The defendants also point to the fact that at the scene of the Accident,
Ms. Cruz reported no low back pain but yet she asserted at trial that she
experienced back pain following the Accident. She explained that she was in
shock immediately following the collision. I found her explanation at
trial plausible, particularly in light of the significant injuries it is
conceded that she sustained in the Accident.

[55]        
Insofar as the defence’s submissions relate to Ms. Cruz’s evidence
at trial and the alleged inconsistency with the information she previously had
provided to various medical professionals, the court’s observations in Edmondson
v. Payer, 2011 BCSC 118, at para. 21, aff’d 2012 BCCA 114, are
instructive:

[34]      The difficulty with
statements in clinical records is that, because they are only a brief summary
or paraphrase, there is no record of anything else that may have been said and
which might in some way explain, expand upon or qualify a particular doctor’s
note. The plaintiff will usually have no specific recollection of what was said
and, when shown the record on cross- examination, can rarely do more than agree
that he or she must have said what the doctor wrote.

[56]        
I found that when responding to questions from medical professionals, Ms. Cruz
was inclined not to elaborate on her symptoms unless specifically asked, and
then only to the degree that a literal understanding of the question required.

[57]        
At trial Ms. Cruz did not recall reporting back pain to Dr. Robbertse
in 2005. I am not persuaded that she was deliberately untruthful about her
lack of recollection about this complaint, particularly in view of the fact
that prior to the Accident, she did not suffer from chronic low back symptoms. Notably,
after May 2005 until the Accident in 2008, there were no further back pain
complaints to Dr. Robbertse. Her lack of recall that she had two
attendances with her family doctor several years prior to the Accident, must
also be viewed through the lens of her various other chronic medical
afflictions for which she regularly sought treatment – diabetes, hypertension
and carpal tunnel syndrome.

[58]        
I found Ms. Cruz to be credible about her symptoms and to be a
credible and reliable witness overall. While I acknowledge that there are
some inconsistencies in Ms. Cruz’s evidence, I am not persuaded that
these inconsistencies are particularly significant on the evidence as a whole.
I find no significant inconsistencies or inaccuracies in what Ms. Cruz
reported to the various doctors who assessed her and her testimony at trial.
I do not find that she embellished or exaggerated her symptoms to advance
her litigation objectives, nor did she ever seek to mislead her examining
doctors. In 2009 and 2010, Ms. Cruz pushed through performing her care
aide duties, even though it was difficult and painful for her to do so. Exaggerating
her symptoms would be incompatible with her clear motivation to work as much as
she is able in order to support her family.

[59]        
I next address the injuries Ms. Cruz alleges she sustained in the
Accident.

[60]        
The evidence supports a finding that Ms. Cruz sustained soft tissue
injuries to her neck, right shoulder and shoulder blade. The medical evidence
concerning the progression of the soft tissue injury to Ms. Cruz’s neck and
shoulder, and her resulting headaches was less well-developed. These symptoms,
while not mild, remained in the background as a point of concern because of the
presence of her more debilitating low back symptoms.

[61]        
At trial, Ms. Cruz’s primary complaint was a persistent pain in her
neck and shoulder blades, primarily on the right side. She experiences varying
degrees of pain and discomfort. While there has been some improvement in the
severity of her symptoms, I accept her evidence that she continues to
experience neck symptoms on a daily basis. The pain radiates into her shoulder
blades. She suffers from episodic flare-ups of her neck and shoulder symptoms. Her
symptoms are aggravated with lifting and carrying heavier items such as her
briefcase. I accept her evidence that the daily pain medication she
consumes alleviates the headache symptoms attributable to her neck injuries.
While Ms. Cruz is managing her headaches, it cannot be overlooked that she
is coping with her daily doses of Gabapentin, which Dr. Dhawan described
as an anti-seizure medication used as a pain control mechanism for neuropathic
pain.

[62]        
After the Accident, Ms. Cruz suffered from what Dr. Heran
described as “severe stenosis”. As I mentioned earlier, Ms. Cruz experienced
sharp shooting pains and spasms in her right leg and buttocks, as well as
numbness and tingling in her right thigh. After her surgery Ms. Cruz
experienced significant improvement in the referred pain in her leg. However, she
is left with residual difficulties. She currently experiences intermittent
numbness and tingling in her right thigh and her feet if she walks, sits or
stands for more than 30 minutes. She also has restrictions with walking,
sitting or standing for more than 30 minutes because of the numbness in her
right thigh.

[63]        
In the period after the Accident until her surgery, Ms. Cruz
suffered from severe and persistent low back pain. With respect to her current back
symptoms, she no longer experiences acute pain. However , she suffers from numbness
and she describes a “hollow feeling” and discomfort in her lumbar area,
primarily on the right side.

[64]        
Ms. Cruz also continues to suffer from sleep disturbances because
of her accident-related injuries.

[65]        
I accept Dr. Heran’s opinion that her prognosis is guarded and Dr. Dhawan’s
opinion that Ms. Cruz is likely to live with long-term pain in her neck
and, to a lesser extent, discomfort in her back. On balance it is more likely
than not that the constellation of Ms. Cruz’s symptoms will persist
indefinitely.

III.            
CAUSATION

[66]        
The defendants sensibly concede that Ms. Cruz has proven a causal
connection between her neck, shoulder and back injuries and symptoms and the Accident.
As I mentioned earlier, the defendants also concede that the Accident was a “materially
contributing factor” to her need for spinal surgery.

[67]        
Whether a defendant is liable to a plaintiff for an injury is a matter
of causation. It is crucial to keep in mind the analytical distinction between
determining causation and assessing damages, since different principles govern
the two questions: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003
BCCA 670 at para. 16; Drodge v. Kozak, 2011 BCSC 1316 at para. 79;
Moore v. Kyba, 2012 BCCA 361 at paras. 35-36. I will address the
principles which govern the assessment of damages in the next section on
damages.

IV.           
DAMAGES

[68]        
I next address Ms. Cruz’s claim for damages under the following
headings:

(a)           
Non-pecuniary damages;

(b)           
Loss of past and future earning capacity;

(c)           
Cost of future care;

(d)           
Special damages.

A.             
Non-pecuniary damages

[69]        
Ms. Cruz seeks an award of $110,000 for non-pecuniary damages. The
defence submits the non-pecuniary damages should be assessed in the range of
$50,000 to $60,000.

[70]        
Non-pecuniary damages are intended to compensate a plaintiff’s pain,
suffering, and loss of enjoyment of life. While recognizing that the loss of
good health cannot be valued in monetary terms, the “functional approach”
attempts to assess the compensation required to provide a plaintiff with
reasonable solace for her injuries. The award should compensate a plaintiff for
the non-pecuniary loss she has suffered up to the date of the trial and for
that loss she will suffer in the future. An award for non-pecuniary damages
must be fair and reasonable to both parties: Lindal v. Lindal, [1981] 2
S.C.R. 629 at 637; Hmaied v. Wilkinson, 2010 BCSC 1074 at para. 55;
Farand v. Seidel, 2013 BCSC 323 at para. 69.

[71]        
While fairness is assessed by reference to awards made in comparable
cases, because of the requirement for an individualized assessment, it is
impossible to develop a “tariff”. Each case must be decided on its own unique
facts because no two individual plaintiffs’ personal experiences in dealing
with their injuries and the adverse consequences of those injuries are
identical: Lindal at 637; Kuskis v. Hon Tin, 2008 BCSC 862 at para. 136;
Kapelus v. Hu, 2013 BCCA 86 at para. 15; Dilello v. Montgomery,
2005 BCCA 56 at para. 25.

[72]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
enumerated the factors to be considered in awarding non-pecuniary damages. The
non-exhaustive list includes: the age of the plaintiff; the nature of the
injury; the severity and duration of pain; the degree of disability; emotional
suffering; the impairment of family, marital, and social relationships;
impairment of physical and mental abilities; loss of lifestyle and the
plaintiff’s stoicism.

[73]        
The essential principle in the assessment of damages is that the
plaintiff must be placed in the position she would have been in absent the
defendants’ negligence. A defendant is not expected to put the plaintiff in a
better position than she was in the moment before the accident happened. A
plaintiff’s loss is comprised of the difference between her original position
and her injured position after the accident: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 35.

[74]        
A pre-existing condition is part of the plaintiff’s original condition.
Where there is a measurable risk that a pre-existing condition, latent or active,
would have resulted in a loss to the plaintiff in the future without the
defendant’s negligence, then the risk of loss must be taken into account in
assessing certain heads of damages and serves to reduce the award: Athey
at para. 35; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA
331 at para. 20; T.W.N.A.

[75]        
The contingency of her pre-existing condition manifesting on its own to
cause a loss does not have to be proven on a balance of probabilities. It is
given weight according to its relative likelihood: Zacharias v. Leys,
2005 BCCA 560 at para. 16.

[76]        
I turn to consider the facts of this case.

[77]        
If there was a measurable risk that Ms. Cruz’s pre-existing
degenerative condition in her spine would have resulted in a loss absent the
Accident, then that pre-existing risk of loss must be taken into account in
assessing damages. This is pertinent because Ms. Cruz must be restored to
the position she would have been in absent the Accident and not to a better position.

[78]        
The evidence shows that prior to the Accident, the condition of Ms. Cruz’s
spine was as follows:

(i)             
She had a congenitally narrow spinal canal;

(ii)            
She had a thickening of the ligamentum flavum in the vicinity of the
nerve in the spinal canal;

(iii)           
She had facet joint arthritis.

[79]        
The evidence on balance does not demonstrate that her disc bulge at
L4-L5 existed prior to the Accident.

[80]        
The essential contention of the defence is that because of Ms. Cruz’s
narrow spinal canal and the pre-existing degenerative changes in her spine,
there was a measurable risk that the plaintiff’s pre-existing condition would
have worsened or become symptomatic at some point in the future regardless of
the Accident, and therefore her damages should be reduced accordingly. The
defendants suggest that a reduction of approximately 40% would be appropriate.

[81]        
The defendants’ submissions in this regard are anchored in two
attendances by Ms. Cruz with her family doctor on April 11 and May 2,
2005. Dr. Robbertse’s notes indicate that her complaints included pain in
the left buttock, a pins and needle sensation and numbness in her left thigh
for three months. He also recorded back pain, similar to what she reported she
had experienced during her last pregnancy. Dr. Robbertse diagnosed an L2 radiculopathy
and he sent Ms. Cruz for an x-ray. He prescribed a muscle relaxant for
her. As I mentioned earlier, Ms. Cruz testified that she did not
recall these episodes of low back pain, although she recalled having low back
pain with her last pregnancy .This would have been in 1996.

[82]        
Notably, when Dr. Robbertse’s clinical entries were put to Dr. Heran
in cross examination, he did not agree with Dr. Robbertse’s diagnosis of
radiculopathy. Dr. Heran, a neurosurgeon, noted that there were other
reasons for an individual to have anterior thigh numbness and he noted that, an
entrapment of the femoral cutaneous nerve was the most common reason for
exhibiting anterior lateral thigh numbness, particularly during pregnancy.

[83]        
In my view it is significant that, prior to April 2005 and from May 2,
2005 until the Accident, Ms. Cruz made no complaints to Dr. Robbertse
about back symptoms nor did she receive any treatments for back symptoms. The
evidence supports a finding that Ms. Cruz functioned fully without restrictions
or limitations in connection with her care aide work.

[84]        
On the totality of the evidence I cannot conclude that the
degenerative changes at L4‑L5 in Ms. Cruz’s lumbar spine were
becoming symptomatic in 2005, or that there was any relationship established
between Ms. Cruz’s lumbar symptoms in 2005 and those degenerative changes.

[85]        
With respect to her spinal decompression, as I noted earlier, it is
Dr. Heran’s opinion that had the Accident not occurred, even with her
narrow spinal canal at the L4‑L5 level, Ms. Cruz would likely have
remained asymptomatic in this regard. In cross-examination he persuasively
discounted the defence contention that there was a predictable correlation
between the degenerative changes shown on her imaging results and the
development of lumbar symptoms.

[86]        
Dr. Dhawan in cross-examination acknowledged that Ms. Cruz was
at some risk of developing symptoms in the absence of a trauma. Dr. Dhawan’s
evidence does not, however, in any way provide any predictions as to the
natural path of Ms. Cruz’s degenerative condition absent the Accident. He
gave no evidence as to what age those symptoms might manifest themselves, how
serious or disabling they would have been, or how rapidly they would have
progressed. He testified that:

We don’t know when and we don’t
know how much and we don’t know what implication it will have in terms of her
function, because we do see surprisingly significant disease, radiographic
disease, with those symptoms, patients riddled with changes … and they have no
symptoms Again, I cannot measure the risk because I can tell
you, as I have said earlier, I have so many patients who have much
worse radiographic findings than her and do not have symptoms and do physically
demanding job. (Emphasis added.)

[87]        
In any case, to the extent there is a conflict between Dr. Heran
and Dr. Dhawan on this point, I prefer the evidence of Dr. Heran.
I am not persuaded that the evidence establishes a measurable risk that Ms. Cruz,
in the absence of the Accident would have required surgery, or that her
pre-existing spinal condition would have otherwise detrimentally affected her.

[88]        
I note parenthetically that neither Dr. Dhawan nor Dr. Heran
was aware of the 2005 attendances on Dr. Robbertse when they formulated
their opinion on causation. However, neither doctor placed much significance on
the 2005 attendances. It is common ground that after being apprised of the 2005
attendances, neither Dr. Heran nor Dr. Dhawan altered their respective
conclusions regarding causation.

[89]        
Dr. Robbertse also testified that on visits for May 20, 2007
and November 12, 2007, Ms. Cruz reported some neck symptoms. It is
important to note that those visits to see Dr. Robbertse were not for neck
problems and he did not prescribe any treatment, nor did he investigate these
symptoms. The entry on May 20, 2007 reads “pain in back of neck”. Notably
the entry on November 12, 2007 which reads “neck pain and stiffness” also
records “flu”. As Dr. Heran observed, patients with flu symptoms can have
related muscle aches and pains. I cannot conclude on the evidence that Ms. Cruz
was suffering from a musculoskeletal condition involving her neck in 2007.

[90]        
In summary on this issue , I am not satisfied that the preponderance
of evidence, both expert and lay, establishes a measurable risk that absent the
Accident, Ms. Cruz’s pre-existing spinal condition would have become
symptomatic or detrimentally affected her in the future. Moreover, there is no
cogent evidence establishing a measurable risk that Ms. Cruz would have
developed symptoms in her neck and shoulders absent the Accident. Accordingly,
there is no principled basis on which to reduce Ms. Cruz’s damages award.

[91]        
Earlier in these reasons I set out my findings on the progression
of Ms. Cruz’s symptoms. As I indicated earlier, based on the medical
evidence, I find that it is more likely than not that her condition will
persist indefinitely.

[92]        
I have concluded that the injuries Ms. Cruz sustained in the
Accident have caused her pain and suffering and adversely affected her
functioning. I am satisfied that her enjoyment of life, including her work,
family life and social and leisure activities have been significantly impacted.
She is less active, has considerably less energy, and has more difficulty
managing household matters.

[93]        
Ms. Cruz presents as motivated to work and, despite her Accident-related
injuries, she has persevered with her employment. She presents as a
hard-working person who is committed to providing for her family. Her life has
been rendered significantly more challenging on account of her having to manage
her pain with daily medication. The daily challenges she faces are no doubt
stressful and frustrating for her.

[94]        
I have considered all the cases cited by each counsel. While the
authorities are instructive, I do not propose to review them in detail, as
they provide general guidelines only. Generally I note the defendants’
authorities involve less serious injuries than those sustained by Ms. Cruz
and none involve plaintiffs whose injuries required surgery.

[95]        
Having reviewed all of the authorities provided by counsel and
considering Ms. Cruz’s particular circumstances, I conclude a fair
and reasonable award for non-pecuniary damages is $90,000.

B.             
Loss of past earning capacity and loss of future earning capacity

[96]        
Ms. Cruz seeks compensation of $80,000 gross for loss of past
earning capacity and $300,000 for loss of future earning capacity.

[97]        
The defendants submit that Ms. Cruz is entitled to an award of $12,700
– $17,700 for past income loss. The defence disputes Ms. Cruz’s assertion
that her future income earning capacity was impaired as a result of the
injuries she sustained in the Accident.

1.              
Legal Framework

[98]        
The legal principle that governs the assessment for loss of earning
capacity is that, insofar as is possible, the plaintiff should be put in the
position he or she would have been in but for the injuries caused by the
defendants’ negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106 at para. 185. It is well-settled that an award for future loss of
earning capacity represents compensation for a pecuniary loss: Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32. Compensation
must be made for the loss of earning capacity and not for the loss of earnings:
Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y,
2011 BCSC 944 at para. 188.

[99]        
The recent jurisprudence of the Court of Appeal has affirmed that the
plaintiff must demonstrate both impairment to his or her earning capacity and
that there is a real and substantial possibility that the diminishment in
earning capacity will result in a pecuniary loss. If the plaintiff discharges
that requirement, he or she may prove the quantification of that loss of earning
capacity either on an earnings approach or a “capital asset” approach as
described in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Perren
v. Lalari, 2010 BCCA 140 at para. 32; Morgan v. Galbraith, 2013
BCCA 305 at para. 53. Regardless of the approach, the court must endeavour
to quantify the financial harm accruing to the plaintiff over the course of his
or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19; X.
v. Y at para. 183. The authorities establish that an inability to
perform an occupation that is not a realistic alternative occupation is not
proof of an income loss.

[100]     As
enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41,
aff’d 2011 BCCA 45, the principles which inform the assessment of loss of
earning capacity include the following:

(i)       The standard of proof in
relation to hypothetical or future events is simple probability, not the
balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101.
Hypothetical events are to be given weight according to their relative
likelihood: Athey at para. 27.

(ii)      The court must make
allowances for the possibility that the assumptions upon which an award is
based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which
supports a contingency must show a “realistic as opposed to a speculative
possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636
(C.A.).

(iii)      The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of) v. Riley
Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.) at para. 43. The assessment
is based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

[101]     Although a
claim for “past loss of income” is often characterized as a separate head of
damages, it is properly characterized as a component of loss of earning
capacity: Falati at para. 39. It is compensation for the impairment
to the plaintiff’s past earning capacity that was occasioned by his or her
injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley
v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185.

[102]     While the
burden of proof relating to actual past events is a balance of probabilities, a
past hypothetical event will be considered as long as it was a real and
substantial possibility and not mere speculation: Athey at para. 27.The
Court in Falati at para. 40, summarized the pertinent legal
principles governing the assessment of post-accident, pre-trial loss of earning
capacity and concluded that:

[40]      … the determination of a plaintiff’s prospective
post-accident, pre-trial losses can involve considering many of the same
contingencies as govern the assessment of a loss of future earning capacity.
… As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at
para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

2.              
Loss of Earning Capacity to date of trial

[103]     I turn to
address whether Ms. Cruz’s injuries and any consequent impairment in her
income-earning capacity generated a pecuniary loss in the post-Accident,
pre-trial period. In assessing Ms. Cruz’s pre-trial loss of earning
capacity, I must consider:

(a)      what
Ms. Cruz would have earned pre-trial period had she not been injured in
the Accident; and

(b)      what,
in fact, Ms. Cruz earned in this period.

[104]     The net
business income Ms. Cruz earned as a financial insurance advisor for Sun
Life from 2004 to 2011, was as follows:

[105]     The hourly
wage at Fleetwood in 2010 and thereafter was $21.94. The evening differential was
75¢ extra an hour and the night rate an extra $1.75 per hour. The weekend rate
is an extra $1.00 per hour on top of these differentials. Fleetwood does not
offer modified or light duties to casual care aide employees, unless they have injured
themselves at work. Achieving permanent status, either part-time or full-time,
is based on seniority. A part-time, permanent employee at Fleetwood works 89%
of the hours that a permanent full-time employee works.

[106]     Ms. Cruz’s
earnings from Fleetwood, from April 2006 to January 2011, as a casual status
employee, were as follows:

[107]     Ms. Cruz’s
earnings must be considered with the following factors in mind:

(i)       In
2007, Ms. Cruz was concentrating her efforts on her Sun Life work because
of the incentives that had been provided to her. Additionally, in 2007 she was having
difficulty managing the logistics of working shifts at Fleetwood because of her
child-care obligations;

(ii)      In
January 2008, changes in her child care arrangements permitted her more
flexibility to work shifts at Fleetwood. Additionally, I accept her
evidence that in late 2007 she had resolved to work more shifts at Fleetwood
because it would be more remunerative than her Sun Life work. However, because
of the injuries Ms. Cruz sustained in the Accident, she was unable to
accept shifts at Fleetwood as she had planned. My view in this regard is
bolstered by a consideration of the fact that, commencing in approximately November
2009 through to the date of her surgery in January 2011, Ms. Cruz worked
each month at Fleetwood and earned an average of $2,433 per month.

[108]     I will
analyze Ms. Cruz’s pre-trial claim for loss of income in terms of her two
different jobs as follows:

(a)      Sun
Life post-Accident – pre-surgery;

(b)      Sun
Life post-surgery;

(c)      Fleetwood
post-Accident;

a)             
Sun Life post-Accident – pre-surgery

[109]     Ms. Cruz
returned to her Sun Life work approximately one month after the Accident.
I accept that because of her injuries she worked reduced hours and experienced
difficulties with concentration and focus. However, I am not persuaded
that she has demonstrated a real and substantial possibility that this impairment
resulted in a pecuniary loss. Given that Ms. Cruz’s remuneration was
largely commission based, the fact that she had to work reduced hours does not
in itself support a finding that she suffered a pecuniary loss.

[110]     Notably, in
2007, the year before the Accident, Ms. Cruz’s net business income from
Sun Life was $10,761. Her net business income in 2008 was $19,093.

b)             
Sun Life – post surgery

[111]     The
defendants concede that Ms. Cruz’s earning capacity was impaired for
several months following her surgery in January 2011. She resumed working in July
2011. They suggest that an appropriate award up to the date of trial is in the
range of $2,500 to $7,500 gross.

[112]     Ms. Cruz’s
Sun Life net business income in 2010 was ($2,856). However, it cannot be
overlooked that in 2010 she was primarily working at Fleetwood. Insofar as Sun
Life was concerned, Ms. Cruz earned $10,761 in 2007, $19,093 in 2008, and
$2,409 in 2009.

[113]     In
considering her historical earnings and all of the pertinent contingencies, including
the fact that there was a real and substantial possibility that in this period
of time Ms. Cruz would have continued to concentrate her work efforts on
Fleetwood, an appropriate award for loss of earning capacity up to the date of
trial in relation to Sun Life is $5,000 gross.

c)             
Fleetwood post-Accident

[114]     The
defendants do not dispute that Ms. Cruz’s income earning capacity – her ability
to work as a care aide – was impaired after the Accident. Rather, the defence
submits that Ms. Cruz likely would not have worked many shifts at
Fleetwood in 2008 absent the Accident. The defendants concede, however, that Ms. Cruz
should be allowed “several months’ worth of loss of income” post-surgery. The defendants
submit an appropriate award would be roughly four months at $2,545, which is Ms. Cruz’s
monthly average earnings at Fleetwood for 2010, which equals approximately $10,200.

[115]     The
plaintiff provided the Court with several illustrative tables to assist the
Court in assessing Ms. Cruz’s income loss from Fleetwood. In essence, in
order to assess what her income would have been absent the Accident, the
plaintiff presented various projections based on Ms. Cruz’s past actual
earnings from Fleetwood.

[116]     As I have
stated, I accept Ms. Cruz’s evidence that, absent the Accident, she would have
concentrated her work efforts at Fleetwood in the pertinent time period and
accepted the shifts offered to her .Taking this into account as well as Ms. Cruz’s
historical earnings, the amount she actually earned at Fleetwood after the
Accident, and the pertinent contingencies, including the fact that her status
at Fleetwood was that of a casual employee, I assess that the Accident
resulted in a total past loss of income to Ms. Cruz of $55,000 for the
period from the date of the Accident to the date of trial.

[117]     In the
result, the total award for the monetary value of the impairment to Ms. Cruz’s
past earning capacity is $60,000 ($55,000 + $5,000) gross.

[118]     As Ms. Cruz
is only entitled to recover her income losses, I direct counsel to carry
out the necessary calculations in order to determine the appropriate amount of
loss. Counsel have liberty to apply if they are unable to agree on this amount.

3.              
Loss of Future Earning Capacity

[119]     As I have
mentioned earlier, Ms. Cruz submits that she is entitled to an award of
$300,000 for loss of earning capacity. The defence submits that Ms. Cruz
has not met the burden of proof in establishing that she has suffered a
diminishment of her future earning capacity attributable to the Accident.

[120]     The
essential task of this Court is to compare the likely future of Ms. Cruz’s
working life had the Accident not happened, with Ms. Cruz’s likely future
working life after the Accident. I note that her counsel is not seeking
any award in relation to her Sun Life remuneration – only Fleetwood. In any
case, the evidence does not reasonably support a finding that there is a claim
for loss of future earning capacity in relation to her Sun Life work.

[121]     As a
starting point in the analysis I turn to address whether Ms. Cruz’s Accident-related
injuries have impaired her future earning capacity. The defence contends that
after her recovery from her surgery Ms. Cruz was capable of working as a
care-aide or alternatively that she her capacity to work as a care-aide was
impaired prior to the Accident because of her pre-existing spinal condition.

[122]     In my view
the evidence amply demonstrates that the Accident is responsible for an
impairment of Ms. Cruz’s future earning capacity .The uncontradicted
opinion of Dr. Dhawan, which I accept, is that Ms. Cruz is “not
fit to return to labour-intensive work as a care aide”. In his April 11, 2012
report he reiterates that working as a care aide is contraindicated despite her
post-surgery improvement.

[123]     I reject
the defence submission that there has been no diminishment in Ms. Cruz’s future
income-earning capacity because she never should have worked as a care-aide
even prior to the Accident. They rely on Dr. Dhawan’s evidence in
cross-examination which, in my view, the defence has misapprehended. When asked
whether he would have recommended against heavy work for Ms. Cruz, even
prior to the Accident, Dr. Dhawan emphasized that since he did not see Ms. Cruz
prior to the Accident, this was a hypothetical question that turned on whether
she had been asymptomatic when performing her duties prior to the Accident. The
ineluctable fact, supported by the evidence, is that Ms. Cruz completed
her training and worked as a care aide prior to the Accident, without low back symptoms.
Moreover, prior to the Accident she had never received any medical advice that care
aide work was contraindicated..

[124]     I have not
overlooked the fact that in 2012, Ms. Cruz attempted to return to work to
Fleetwood as a casual employee. However, she was required to provide a doctor’s
certificate which indicated that she had undergone back surgery, and Fleetwood
put her on the inactive list. In view of Dr. Dhawan’s opinion and my
finding that her income earning capacity in this regard has been impaired, it
is not necessary for me to address the defence submission that Ms. Cruz
should have sought employment as a care aide at other facilities.

[125]     I find
that the limitations caused by her injuries have rendered Ms. Cruz less
capable overall from earning an income, have rendered her a less marketable
employee and have taken from her the ability to take advantage of all job
opportunities that might otherwise have been open to her.

[126]     In summary
on this issue I find that Ms. Cruz’s income earning capacity has been
impaired as a result of the injuries she sustained in the Accident. The
preponderance of the evidence demonstrates that this impairment will likely
harm her earning capacity in the future. I have also concluded that, on account
of her Accident-related injuries and the consequent impairment of her earning
capacity, there is a real and substantial possibility that Ms. Cruz will
suffer some pecuniary loss into the future because her capacity to work as a care
aide has been impaired.

[127]     Having
found that Ms. Cruz’s future earning capacity is diminished and that there
is a real and substantial possibility that the impairment of her capacity will
generate a pecuniary loss, I must now decide the companion issue of what,
in light of all the circumstances, she should be awarded as compensation.

[128]     Ms. Cruz
was 54 years old when this matter came to trial.

[129]     I conclude
that Ms. Cruz’s loss of future earning capacity can best be assessed using
an earnings approach. Applying that approach I have factored in the income
Ms. Cruz earned from Fleetwood both prior to and after the Accident.

[130]     Since the
occurrence of hypothetical and future events is unknown, I must consider
relevant contingencies. The evidence in this case mandates that in my
assessment I take into account the following contingencies which reflect
the likelihood of a future loss occurring:

(i)             
I find there is a real and substantial possibility Ms. Cruz would
have worked as a care aide until she was 65. However Ms. Cruz, absent the
Accident, could miss work or have a shortened work life as a care aide because
of unrelated illness, injury, or disability. There was no cogent medical
evidence that there was a realistic risk her diabetes or carpal tunnel syndrome
would cause her to miss work or to have a shortened work life.

(ii)            
In the future, absent the Accident, Ms. Cruz would have accrued
seniority and may have achieved permanent part-time status at Fleetwood. The
evidence shows that her annual earnings would have been in the range of
$38,000. This is a positive contingency.

(iii)           
In the future, Ms. Cruz may earn a higher wage at competitive
employment that is higher than what she would have earned at Fleetwood.

(iv)          
Since Ms. Cruz was a casual employee at Fleetwood, with no set or
guaranteed shifts, her future earnings absent the Accident could be less than
what she earned at Fleetwood in the years prior to her surgery.

[131]     In this
case, I must forecast Ms. Cruz’s future losses. I recognize that
unknown contingencies and uncertain factors make it impossible to calculate
future earning capacity with any precision. Damages must be assessed, not
calculated and must be fair to both parties: Power v. Carswell, 2011
BCSC 1672 at para. 211.

[132]     Taking into
account all of the evidence, and the relative negative and positive
contingencies, I assess Ms. Cruz’s loss of future earning capacity
from the date of trial as $140,000. I note that, had I employed the
capital asset approach to assessing Ms. Cruz’s loss, and taken into
account the factors identified by the Court in Brown v. Golaiy, I would
have arrived at the same figure.

[133]     I am
satisfied in all the circumstances this is a fair and reasonable award.

C.             
Cost of Future Care

[134]     Ms. Cruz
seeks compensation of $17,400 for the cost of her medication.

[135]     The
purpose of an award for future care is to compensate a plaintiff for costs
which reasonably may be expected to be incurred to preserve and promote the
plaintiff’s mental and physical health: Milina at para. 78; Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351 at para. 30.
The items or services claims must be medically justified and the claims reasonable.
The Court should also consider whether the plaintiff would likely use the items
or services in the future: Penner v. Insurance Corporation of British
Columbia, 2011 BCCA 135 at paras. 12-14; Drodge at para. 194.

[136]     The
quantification of damages for the cost of future care is an assessment and not
a precise accounting exercise; adjustments must be made for “the contingency
that the future may differ from what the evidence at trial indicates”: Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21. General
contingencies and those specific to the plaintiff are to be taken into account
where appropriate: S.R. v. Trasolini, 2013 BCSC 1135.

[137]     Since
shortly after her surgery, Dr. Robbertse has continued to prescribe, and Ms. Cruz
has continued to rely on Gabapentin for pain relief and Temazepam to assist her
with sleep.

[138]     The
evidence shows that the annual cost of the Temazepam is approximately $400 per
year and the cost of the Gabapentin is approximately $800 per year.

[139]     I conclude
that an annual allowance for these medications would be beneficial in providing
Ms. Cruz with relief for her ongoing symptoms. This is a reasonable
expense that is medically justified.

[140]     On the
totality of the evidence and taking into account the relevant contingencies,
I assess an award of $15,000.

D.             
Special Damages

[141]     Special
damages have been agreed in the amount of $3,312.22.

V.             
CONCLUSION

[142]     Ms. Cruz’s
damages are assessed at the following:

[143]     I cannot provide
a total number, because of the need for the past loss of income calculation.

VI.           
COSTS

[144]    
Ms. Cruz is entitled to her costs at Scale B unless there are any
pertinent circumstances that should be brought to the Court’s attention. If a hearing
is required, counsel should reserve a date through Supreme Court Scheduling to
address the issue.

___________ “Dardi
J.”____________
Dardi J.