IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131025

Docket: S19958

Registry:
Chilliwack

Between:

Flaire Lee-Ann
Cebula

Plaintiff

And

Stella Smith and The
Estate of John Smith, Deceased

Defendants

Before:
The Honourable Mr. Justice G.C. Weatherill

Reasons for Judgment

INTRODUCTION

[1]            
This action arises as a result of a motor vehicle accident (the “Accident”)
that occurred in the City of Chilliwack, British Columbia.  Liability and
damages are in dispute.

[2]            
The plaintiff says that liability rests 100% with the defendants.  The
damages claimed are significant.

BACKGROUND

[3]            
On July 16, 2007, the plaintiff was driving her son’s 1993 Ford Escort
(“Escort”) southbound on Vedder Road behind a Ford Pick-up truck (“Pick-up”)
that was towing a boat and trailer.  Her 13 year old daughter was sitting in
the Escort’s front passenger seat.

[4]            
The defendant, Stella Smith, was driving northbound on Vedder Road in a
2000 Nissan (“Nissan”) owned by her then husband, John Smith.  Mr. Smith passed
away after these proceedings were commenced.

[5]            
As the Nissan approached the Pick-up, Vedder Road curved to the Nissan’s
right.  Instead of following the road, the Nissan crossed the double yellow centre
line, allegedly entered the southbound lanes and collided with the Pick-up. 
The Pick-up’s boat trailer spun and collided with the Escort.  The Nissan then
collided with the Escort.

[6]            
The plaintiff claims she sustained the following injuries as a result of
the Accident:

a)   
headaches;

b)   
hearing difficulties;

c)    
ear pain;

d)   
fracture of her cervical spine;

e)   
neck, mid and upper back pain and stiffness;

f)     
pain and tightness across her chest;

g)   
numbness and tingling bilaterally in her arms, but predominantly in her
right arm;

h)   
pain and stiffness in her right knee;

i)      
fracture of her right ankle with ongoing pain in her right ankle and
right foot;

j)     
mood swings with moderate symptoms of depression and anxiety;

k)    
posttraumatic stress disorder with generalized anxiety and specific
phobic behaviour regarding being in a vehicle;

l)      
significant sleep disturbance; and

m)  problems with word finding
and memory.

[7]            
Approximately 10 days after the Accident, the plaintiff underwent
surgery to install a plate in her right ankle to stabilize the fracture.

[8]            
Approximately four months after the Accident, the plaintiff underwent
neck surgery to stabilize the fracture of her cervical spine.  Bone from her
hip was grafted onto her spine.  Following the neck surgery, the plaintiff
experienced the following additional symptoms:

a)   
significant problems swallowing foods;

b)   
a painful infection at the site of the bone graft in her right hip that
was used to stabilize her spine;

c)    
nausea and vertigo; and

d)    problems with
her voice.

[9]            
In February 2009, the plaintiff was involved in a second motor vehicle
accident (“Accident No. 2”), which was the subject of a second legal action that
has since been settled.

[10]        
In February 2013, the plaintiff was involved in a third motor vehicle
accident (“Accident No. 3”).  No action has been commenced with respect to Accident
No. 3.

[11]        
The plaintiff’s position is that the injuries she sustained in Accident
No. 2 and Accident No. 3 were merely minor aggravations of some of the injuries
that she sustained in the Accident.

[12]        
Both Accident No. 2 and Accident No. 3 aggravated the plaintiff’s Accident-related
injuries.

[13]        
Upon his death, Mr. Smith ceased to exist in law: McNabb Estate v.
Mills, 1995 CanLII 160 (B.C.S.C.).  Notwithstanding R. 6-2(1) of the Supreme
Court Civil Rules, B.C. Reg. 168/2009, which provides that if a party to a
proceeding dies but the claim survives the proceeding may continue in spite of
the death, until such time as an executor or administrator is substituted as a
party there is no legal person or entity before the court: McCulloch v.
Green, 1995 CanLII 8909 (B.C.C.A.) at para. 30:

If the defendant, in a properly
brought action for tort, dies after the commencement of the action, that action
is suspended until an executor or administrator is appointed and, in accordance
with the Rules of Court, substituted as a party for the deceased, whereupon the
plaintiff may proceed.

[14]        
I was advised by counsel that Mr. Smith’s estate has not yet been
probated.

[15]        
During the trial, the plaintiff sought leave pursuant to R. 6-2(7) to
substitute the Estate of Mr. Smith for Mr. Smith as a defendant in this
action.  In my view, the participation of the Estate of Mr. Smith as a party is
necessary to ensure that all matters in the proceeding may be effectually
adjudicated on.  I ordered that that substitution be made and directed that the
style of cause be amended accordingly.

THE PLAINTIFF’S CASE

[16]        
The plaintiff read into evidence excerpts from the examination for
discovery of the defendant, Stella Smith.  Her evidence was that she was
driving the Nissan northbound in the lane nearest the centre-line.  It was a
clear day and the roads were dry.  Moments before the Accident she had her head
down to look at the speedometer because she was concerned about her speed,
which she said was 60 kilometers.  The next thing she knew the air bag in the
steering wheel deployed and a man came to her window and asked if she was
alright.  Her vehicle was a write-off.  She was issued a traffic violation by
the police “for causing the accident”.

[17]        
The plaintiff filed (as Exhibit 8) an agreed statement of facts
regarding the requirements for a graduate diploma in education and a Master’s
degree in Education Practice.  I will not duplicate Exhibit 8 in these reasons
for judgment.

[18]        
The following witnesses were called as part of the plaintiff’s case:

The Plaintiff

[19]        
The plaintiff is a 48 year old single mother of two.

[20]        
At the time of the Accident, she was an elementary school teacher.  She
obtained her teaching certificate in December 2003 and Bachelor’s degrees in
General Studies and Education in June 2004.  From February 2004 until June 2007
she was a “teacher on call” within the Chilliwack School District.  From March
2005 to June 2007, she worked full-time as a teacher on call at Watson
Elementary School.

[21]        
In June, 2007, the plaintiff obtained a “continuing full-time” position
with the Chilliwack School District, effective September 1, 2007.  This employment
status assured her of full-time employment within the school district regardless
of whether there was a position at the particular school in which she was
working.  She was scheduled to take up this position at Watson Elementary
School.  Her pay scale under the collective agreement between the school
district and the teacher’s union was Category 5, Step 2.

[22]        
The plaintiff was interactive with her students.  She moved around the
classroom, spent extra time with students who needed it and was involved in
organizing school plays and other productions.  She described her job as one
that required a lot of physical movement.  It also required that she work after
classroom hours at school and at home.  She initiated the “smart reader” (now
called “smart learner”) program at her school.

[23]        
The plaintiff was dedicated to and passionate about her work.

[24]        
In September 2006, the plaintiff completed the application materials for
enrollment in a Graduate Diploma in the Education program at Simon Fraser
University that would provide her with a Category 5 Plus designation.  The
program would have begun in January 2007 and taken a minimum of two years to
complete, with meetings with a “cohort” during the school year and courses
during the summers.  One of the benefits would have been an increase in her pay
scale.

[25]        
She decided to delay her application for one year because she and her
husband separated in September 2006 and she did not want to take on any more
tasks until she could determine how her children would react to the separation. 
Her intention was to apply in September 2007 for the program that was to
commence in January 2008.  She testified that if she was not accepted she would
have done what was necessary to upgrade her qualifications until such time as
she was accepted into the program.

[26]        
The plaintiff agreed on cross-examination that the earliest she would
have completed the Category 5 Plus program would have been January 2010.

[27]        
The plaintiff testified that once she had obtained her Category 5 Plus
designation she planned to work towards a Master’s of Education degree, which
would have moved her from Category 5 Plus to Category 6 with both a higher
salary and more opportunities for advancement within the school district.  She
planned to have completed her Master’s degree by September 2013.  Again, if she
wasn’t accepted into the Master’s program initially, she would have upgraded
her qualifications until such time as she was accepted.

[28]        
The plaintiff agreed on cross-examination that the Master’s Degree
program required a minimum grade point average of 3.0 and that her grade point
average was only 2.41.

[29]        
The plaintiff planned to retire with a full pension at the age of 63 and
thereafter to continue to work as a teacher on call.

[30]        
Prior to the Accident the plaintiff was healthy and actively involved in
fitness.  She regularly attended aerobics and step classes.  She regularly went
bike riding, running and hiking.  She volunteered in a church.  She very much
enjoyed her annual family camping vacation at Skaha Lake, where she
participated in many outdoor camping and boating activities.

[31]        
 The plaintiff performed all of the housekeeping, gardening, grocery shopping
and cooking in her home.  She drove her children to their various activities,
which included basketball, baseball, guitar lessons for her son and dancing for
her daughter.

[32]        
The plaintiff enjoyed day trips to Vancouver and camping with her
friends and her children.

[33]        
At the time of the Accident, the plaintiff and her daughter were on
their way to Cultus Lake.  It was a beautiful, warm summer’s day.  She was
travelling in the Escort along Vedder Road, which has two lanes in each
direction.  She testified that she was in the southbound curb lane.  On
cross-examination she admitted that it was conceivable that she had been in the
center lane a block or so before the Accident, but was adamant that she was in
the curb lane at the time of the Accident.  She was preparing to turn right
once her daughter recognized the street that her friend, who they were on the
way to pick up, lived on.

[34]        
She was wearing her seat belt.  She was not exceeding the speed limit of
50 kilometers.  She does not recall what vehicles were in front of her or in
the center lane.  She does recall a moving van in the curb lane behind her.

[35]        
The plaintiff heard a crash in front of her and saw “something grey”
coming at her vehicle.  She braked hard but to no avail.  The Escort was struck
by what turned out to be the boat trailer that was being towed by the Pick-up. 
Her body was thrown forward and then backwards.

[36]        
The Escort was then struck by the Nissan.

[37]        
The plaintiff instantly felt pain in her upper back.  Her right ankle
did not hurt initially but it was in a position it should not have been in. 
She began to hyperventilate.

[38]        
She and her daughter were taken to hospital in an ambulance.  Medical
staff diagnosed that the plaintiff had sustained a broken right ankle.  Once
x-rays were read the following day, she was re-admitted to hospital for a
broken neck.  She wore a neck collar for many months.

[39]        
The plaintiff spent the next six to seven weeks living in the lower
level of her split level house because she was unable to climb the stairs to
the main level.  She slept in a hospital bed that was delivered to her home. 
Her mother and a friend, Sheila Denis, assisted with her personal care.  She
used a wheelchair to get around.  Her mother did the cooking, cleaning, laundry
and shopping for the house.  She also attended to the needs of the plaintiff’s
children.

[40]        
Approximately 10 days after the Accident, the plaintiff underwent
surgery on her right ankle.  A metal plate was installed with screws.  Her
ankle became swollen and painful.

[41]        
In late August, at Ms. Denis’ insistence, the plaintiff went on her
annual camping vacation to Skaha Lake, but was unable to participate in any
activities due to her Accident-related injuries.  She was merely an observer.

[42]        
Upon the plaintiff’s return from Skaha Lake, her mother had returned to
her own home and the household chores were performed by a service provided by
the Insurance Corporation of British Columbia (“ICBC”).  Those services continue
to be provided two times per week.

[43]        
Throughout the next several months the plaintiff was in significant pain
and had difficulty sleeping.  She had flashbacks and nightmares about the
Accident.  She had headaches, sore shoulders and pain in her right ankle.  She
had developed a rash under the neck brace that she had been wearing.

[44]        
Once the casts came off her right ankle and the plaintiff was able to weight
bear on her right leg, her right knee became painful, particularly when she is
walking up or down stairs.

[45]        
The plaintiff had been told by the school district that she no longer
had a job at her school due to decreased enrollment and that when she was able
to return to work she would be placed at a different school.  She became
lethargic and lost interest in doing things.

[46]        
In mid-September, 2007, the plaintiff had a CT scan of her neck and
upper back.  That led to her having an MRI of the same area.  The MRI revealed
that her neck fracture required surgery.  She was terrified that it would not
be successful.

[47]        
The surgery took place in November 2007.  Bone was removed from her
right hip for a graft of her cervical spine.  The plaintiff was in the hospital
for three days.  She has noticeable two inch scars in the front of her neck (from
a surgical drainage tube) and on her right hip (from the bone graft).

[48]        
Upon discharge from the hospital, the plaintiff’s mother once again
moved in with her and provided personal care, emotional support and handled the
day to day living tasks.  The plaintiff did not feel as though she was capable
of doing anything in that regard.  Her mobility was extremely limited.

[49]        
The plaintiff became nauseated from the post-surgery drugs.  She had a
very sore hip from the bone graft and pain in her back and upper neck.  Her
headaches turned into migraines, which she continues to suffer two to three
times a week.  Her voice became “crackly” from time to time and she was unable
to project her voice.  The wound on her right hip became infected, but
subsequently healed with medication.  Her hip was and remains painful.

[50]        
The plaintiff also began to experience muffled hearing in her right ear,
which still comes and goes.  She had developed vertigo, which typically lasts
10 to 20 seconds and makes her dizzy and nauseous.

[51]        
The pain in her neck and upper back intensified after her neck surgery,
predominantly on the right side.  She now has “tingling” down her right arm.

[52]        
She began to choke on her food.  It feels to her as though her throat
has a small pocket at the larynx level that catches food.  Initially the
choking was terrifying for her but she has learned to deal with it.  It
persists to this day.

[53]        
The plaintiff’s emotional state changed significantly after the Accident. 
She began shutting people out of her life, despite the best efforts of her
friend Ms. Denis.  She began “snapping” at her children.  She sensed that she
had completely lost control of her life.

[54]        
The plaintiff’s first attempt at driving after the Accident was a trip
she made with her children to visit her sister in North Vancouver for Christmas
in 2007.  The anxiety that the driving provoked resulted in her enlisting the
help of a community driver to take her where she needed to go.  She began
driving on her own again in approximately February 2008 and increased her
driving thereafter.

[55]        
In February 2008, the plaintiff commenced physiotherapy and
rehabilitation sessions twice per week, initially with Nicole Olsen and then
with Jeremy McAllister.  They did not resolve her headaches, dizziness, back,
neck and hip pain, muffled hearing or choking.

[56]        
In July 2009, the plaintiff began meeting at her home with Michelle
Hodson, an occupational therapist who had been retained by ICBC.  The objective
was to have the plaintiff become more independent.  Ms. Hodson rearranged the
plaintiff’s kitchen to make things more accessible and assisted the plaintiff
in acquiring appropriate pillows for sleeping and helpful household tools that
made her day-to-day living activities more tolerable.  Ms. Hodson was a
tremendous help to the plaintiff.

[57]        
Ms. Hodson initiated a fitness program for the plaintiff at the YMCA
with a kinesiologist.  The plaintiff is now maintaining that program on her
own.

[58]        
During the first several months of 2010, the plaintiff was treated by a
psychologist, Dr. Atkinson, for her anxiety.  Although the treatments helped
the plaintiff understand that the world was not out to get her, they did not
improve other aspects of her anxiety.

[59]        
In conjunction with the school board and the union, Ms. Hodson initiated
a return to work program for the plaintiff.  From the spring to June 2010, she
attended Promontory Elementary School and sat in on Mr. Mark DeBruyn’s grade 5
class, initially for one hour, two times per week to watch him teach.  Occasionally,
she also attended his class on Fridays.  Returning to school was an extremely
emotional and trying time for the plaintiff.  She was nervous and had anxiety
attacks.  She had difficulty hearing the students due to the muffled hearing in
her right ear.  Most of her other pain symptoms continued.  She forced herself
to go.  She was not paid.

[60]        
The plaintiff continued with the return to work program during the
2010/2011 school year as a volunteer, two mornings per week, again in Mr.
DeBruyn’s class.  She slowly became less of an observer and more involved in
classroom activities.  She began to carry out some teaching functions on her
own.  However, anxiety regarding her competence as a teacher continued to be an
impediment to her increasing her hours at school.

[61]        
In the spring of 2011, the plaintiff’s family doctor, Dr. Bright,
suggested that she enroll in a “Mindful Acceptance” course to help her deal
with her anxiety surrounding driving and being with other people.  The course
taught the plaintiff various coping mechanisms.

[62]        
In September 2011, she applied for a full-time position at Unsworth
Elementary School but was unsuccessful because she was only cleared by her
physician to work one day per week, or 20% of the time.  The school district
agreed to allow her to continue with her previous role at Promontory Elementary
School for the 2011/2012 school year and to pay her 20% of her salary.  During
that time, she slowing began to teach Mr. DeBruyn’s students without him being
present.

[63]        
For the 2012/2013 school year, the plaintiff began working one day per
week (Mondays) at Unsworth Elementary School, sharing a class with another teacher
who taught the rest of the week.  She was paid 20% of her salary.  She
currently continues in that position at 20% of her salary.

[64]        
On Sunday evenings, the plaintiff becomes anxious at the thought of
teaching the following day.  She does her best to prepare, takes anxiety pills
and goes to bed, often awaking during the night worrying about the following
morning.  She does not wake up refreshed.

[65]        
The school day is exhausting for the plaintiff.  She is unable to
interact with the students the way she had done prior to the Accident.  She has
trouble hearing them.  It is painful for her to lean over their small desks. 
She finds the daily activities within the classroom “overwhelming”.  She feels
that her classroom management skills have deteriorated due to her anxiety and
stress levels.  She is unable to participate in school supervision duties with
other teachers or in any productions or special programs going on at the
school.

[66]        
At the end of the day, she is fatigued, has a headache (often a
migraine) and her upper back and neck are sore.  She returns home and lies down
for approximately two and one half hours.  The following day (Tuesdays) she
wakes up sore and fatigued.  She attends “aqua fit” swimming, which she finds
therapeutic.

[67]        
She spends Tuesday evenings marking her students’ work, which she is
able to do for a maximum of 45 to 60 minutes (approximately five students’
work) before pain and fatigue make it difficult for her to continue.  Sometimes
it takes her the entire week to complete the marking, a task that she easily
did prior to the Accident before leaving school at the end of the day.

[68]        
Given her physical and mental condition at the end of each Monday, the
plaintiff does not believe she is capable at present of increasing her workdays
above once per week.  Ideally, she would like to work two half days per week,
but that option is not available to her

[69]        
As a result of the Accident, the plaintiff does not feel that she is
capable of pursuing a Category 5 Plus designation because she would not be able
to get through the course work and the stress of the required attendances at
Simon Fraser University.  Although she did drive to Vancouver once or twice per
week for approximately three months in 2011 to visit her mother who was in
Vancouver General Hospital undergoing cancer treatment, she did so because she
had to.  Her mother was very ill.  The drive left her very sore, anxious and
usually with a migraine headache.  Regardless, the plaintiff testified that one
day per week of classroom time is not sufficient to justify a Category 5 Plus
designation.

[70]        
Similarly, the plaintiff does not feel that pursuit of a Master’s degree
in Education is justified because substantial classroom time and the resulting
teacher/student relationships is necessary for the required research.

[71]        
The plaintiff does not feel that she can or will be able to take on the
role of a teacher on call to supplement her current 20% work level.  She feels
that she would not be able to cope emotionally with not knowing where she would
be teaching and who the students were.  Moreover, she does not feel that she
would be able to “wing it” as she was able to as a teacher on call prior to the
Accident.  She has very low confidence regarding her teaching abilities.

[72]        
The plaintiff does not feel that becoming a “distance education teacher”
is open to her because there are no part-time positions available and because
the job requires that the teacher sit at a desk working at a computer on-line
with students.

[73]        
The plaintiff is considering the possibility of becoming a private tutor
but feels she is not qualified to tutor anyone beyond grade six.

[74]        
If her pain and headaches decreased to the point that she was physically
able and if the school board was able to accommodate her, the plaintiff would
increase her work hours or take on other teaching roles such as in the library
or the learning resource centre.

[75]        
The plaintiff’s pre-Accident retirement plans have changed.  Based upon
how she currently feels on a day-to-day basis and on how she feels at the end
of her one work day per week, she cannot see herself working more than 10 more
years.  She does not feel that she will be able to work as a teacher on call
after retirement.

[76]        
The plaintiff testified that her day-to-day living has been
significantly affected by the Accident.  She is unable to do large grocery
shops because of the difficulty she has pushing a heavy grocery cart.  Rather
she makes frequent visits to the store and purchases small quantities of food
supplies.  She can only manage light laundry loads.  Her recreational
activities are restricted to going to “aqua fit” four times per week.  She has
stopped going to the gym because it results in her being unable to effectively
participate in her aqua fit classes.  She has been able to resume hiking but
only at a slow pace and on easy trails.  Her swimming is restricted to doing
the breast stroke for short durations.  She no longer volunteers because she
does not feel she is reliable and can be counted on.

[77]        
The plaintiff has taken several airplane trips since the accident, twice
to Germany to watch her daughter perform in the World Tap Dance Championships
(which her daughter won both times) and once to Mexico with her family shortly
after her father passed away.  Each airplane trip was an excruciating experience
for her.  While in Germany, she spent most of the time in her hotel room and
left only to watch her daughter perform.  In Mexico she did virtually nothing
except sit by the pool in a lounge chair.

[78]        
Since the Accident the plaintiff has continued to go on her annual vacation
to Skaha Lake but no longer participates in bike rides or boating.  She
recently drove to Oregon with her boyfriend but had to stop every couple of
hours to stretch.  That drive also resulted in her suffering several migraines.

[79]        
The plaintiff’s Accident-caused driving anxiety has worsened as a result
of the two subsequent accidents she was involved in.  Accident No. 2 occurred
in February 2009 when, on a snowy day, she slid into a vehicle that had stopped
below the crest of an overpass she was crossing.  She was then rear-ended by
another vehicle.  Damage to the front of the plaintiff’s vehicle was minor. 
The rear bumper of her vehicle had to be replaced.  Accident No. 2 resulted in
the plaintiff having more stiffness in her neck and shoulders and new pain on
the left side of her back between the shoulder blade and spine.  It also
aggravated the pain on the right side of her neck.  The right side pain remains
constant.  The left side pain flares up from time to time.  In addition, the
plaintiff’s headaches initially got worse but have since resolved to the pre-Accident
No. 2 intensity and frequency.  Accident No. 2 also resulted in the plaintiff’s
driving anxiety increasing.  She stopped driving in winter conditions.  She
testified that she cannot say whether that increase in driving anxiety is still
present or whether it has reverted to what it was pre-Accident No. 2.

[80]        
Accident No. 3 occurred in February 2013.  The plaintiff was stopped
waiting for the vehicle ahead of her to turn left and she was rear-ended by
another vehicle.  She flew forward and back again.  Again, damage to the
vehicles was relatively minor.  She had some initial stiffness in her shoulders
and neck but that has resolved to the pre-Accident No. 2 level.  She became
anxious about the plate that had been inserted during her neck surgery in
November 2007.  An x-ray apparently indicated there was no need for concern. 
Nevertheless, her driving anxiety worsened significantly.  That increase in
anxiety continues today.  She now keeps her driving to a minimum.  She gets
anxious and emotional when she sees other car accidents.

[81]        
Accident No. 3 increased the frequency of the plaintiff’s migraine
headaches.  Her neck and back pain increased but has now settled back to the
pain level that existed pre-Accident No. 3.  Accident No. 3 also exacerbated
the pain in the left side of her back that was caused by Accident No. 2.  As
well, it aggravated the upper back/shoulder pain caused by the Accident,
although that pain has reverted to its pre-Accident No. 3 level.  She
temporarily increased her pain medication from three to four pills per day but
she has now returned to three pills per day.

[82]        
As a result of Accident No. 3 she unconsciously clenches her jaw, which causes
pain and temporary sleep disruption.  In addition, she has feelings of grief
and sadness because, as she put it, “I couldn’t believe it was happening
again”.

[83]        
The following is a summary of the plaintiff’s current physical
complaints that she attributes to the Accident:

a)   
headaches approximately four times per week, two of which are migraines’

b)   
food gets caught in her throat.  She avoids eating anything that is
raw.  Going to restaurants is difficult for her;

c)    
muffled hearing in her right ear;

d)   
occasional nausea and vertigo;

e)   
constant pain and stiffness in her neck and upper back, at a levels
varying between three and nine on a scale of one to ten, depending upon her
activities;

f)     
occasional tingling in her right arm, usually related to the level of
her back pain;

g)   
occasional numbness in her right hip at the site of the bone graft; and

h)    occasional pain
under her right knee cap on in her right ankle which she generally can
eradicate with exercise.

[84]        
The plaintiff’s emotional stability continues to fluctuate.  She finds
that she has little patience, particularly when she has a headache.  She
continues to have little confidence as a teacher.  She is open to treatment
that would help her eliminate her use of anti-anxiety medications.  She
testified that “I am tired of being anxious and of lacking self-confidence.  I
want to get better”.

[85]        
Currently, the plaintiff is able to attend to her driving needs
(although with anxiety), walk on a regular basis, go to Aqua Fit classes and
use the cross-trainer in the gym.  She is able to do her laundry, grocery
shopping (limited to four plastic bags), dishes, minor household cleaning and
yard work and attend to most matters of personal care.  She can kneel for
approximately two minutes before her right knee begins to hurt.  She is
comfortable standing and moving around for approximately 45 to 60 minutes
before she needs to sit.  She can sit in her special high-backed chair for 60
minutes before she needs to get up and move around.  Going downstairs causes
her right knee to hurt, but the pain is fleeting and goes away once she is at
the bottom of the stairs.  Walking on uneven surfaces hurts her right ankle,
again fleetingly.

[86]        
The plaintiff’s major housekeeping is performed by a service twice per
week, two hours per day.  She is able to do minor vacuuming and dusting.

[87]        
The plaintiff is no longer able to mow her lawn and do gardening and
relies on a neighbour to assist her in that regard.  She testified that she has
paid the neighbour $80 to $120 per month from April to October to do this
gardening for her but that he generally does the mowing and trimming without
being paid.

[88]        
The plaintiff is able to prepare her own meals but relies primarily on
pre-cooked meals that are simply heated up.  She rarely entertains at home.

[89]        
Choking on food is a daily occurrence for the plaintiff.  She remains
cautious of what she eats.  Lifting her arms above her head causes an
uncomfortable “constricting feeling” in her throat.  She is not prepared to
proceed with surgery to have the plate in her neck removed because none of the
specialists who have mentioned this option to her have been able to guarantee
success.  The mere thought of this surgery scares the plaintiff.

[90]        
On cross-examination, the plaintiff conceded that she had migraine
headaches as recently as one month before the Accident.

[91]        
I found the plaintiff to be a credible, forthright and honest witness.  I
have no reason to doubt the presence, duration and severity of the pain and
emotional symptoms she described.

Nicholas Maslin

[92]        
At the time of the Accident, Nicholas was 14 years old and was
travelling southbound on Vedder Road in a loaded five-ton moving van with his
father, who was driving, and his 15 year old brother Alex Maslin.  Nicholas
does not remember whether he was seated in the middle of the single bench seat or
next to the passenger door.

[93]        
Nicholas recalls that they were travelling in the left (center) lane of
the two southbound lanes.  There was a black Pick-up truck ahead of them that
was towing a trailer with a boat on it.  Between the Pick-up and the moving van
was the Escort.  All three vehicles were travelling at approximately the same
speed.  Nicholas was not able to accurately estimate the distances between the respective
vehicles.  He agreed on cross-examination that the moving van could have been
three to four car lengths behind the Escort.

[94]        
At a point where Vedder Road makes a wide turn to the left (looking
southbound), he saw the Nissan cross the double solid yellow center lines and
collide with either the rear of the Pick-up or with the front of its boat
trailer.  The boat detached from the trailer and went “flipping” down the road
in a southerly direction.

[95]        
Although Nicholas does not have a clear recollection of all of the
events, he has a clear memory of the Nissan crossing both yellow center lines
and impacting the Pick-up in the southbound center lane.  On cross-examination
he was adamant that the impact between the Nissan and the Pickup did not occur
in the northbound lanes or within the two yellow center lines.  He is certain the
impact occurred in the southbound center lane, although he conceded it could
have occurred “a couple of inches” into that lane.  He was also adamant that
both the Pickup and the Escort were in the left southbound lane at the time of
the collision.

[96]        
Nicholas does not recall how the Escort and the moving van ended up in
the southbound curb lane after the Accident.

[97]        
Nicholas Maslin, who is now 21, was an honest and straightforward
witness who had nothing to gain from his testimony.  I have no hesitation
accepting his evidence, although I find he was mistaken as a result of the six
intervening years regarding which of the two southbound lanes the Escort was
travelling in at the time of the Accident.  Rather, I accept the plaintiff’s
evidence that she was in the curb lane at the time of the Accident.

Alex Maslin

[98]        
Alex is Nicholas’ older brother.  He was 15 years old at the time of the
Accident.  He is now 22 years old.

[99]        
He testified that he was sitting in the front bench seat of the moving
van next to the passenger window.  His brother Nicholas was sitting to his
left.  He does not recall which of the two southbound lanes he was travelling
in.

[100]     Alex
confirmed Nicholas’ evidence regarding the Accident.  It looked to him as
though the driver of the Nissan forgot to turn right as the road curved right
in the direction of the Nissan’s travel.  The Nissan kept going straight,
crossed the double solid yellow lines and struck either the back of the Pickup
or the front of the boat trailer “more than a couple of inches” into the
southbound lane.

[101]     Alex
confirmed on cross examination that neither the Pick-up nor the Escort crossed
the center lines prior to being impacted.

[102]     Like his
brother, Alex presented as an honest, straightforward and credible witness.  I
have no hesitation accepting his evidence in its entirety.

Aline Lacey

[103]     Mrs. Lacey
is the plaintiff’s mother.

[104]     She
testified that the plaintiff did not have any physical or mental illness prior
to the Accident.  She described the plaintiff as having been a very relaxed and
easy going person.  The plaintiff had always wanted to become a teacher.

[105]     Mrs. Lacey
confirmed she moved into the plaintiff’s home to help look after her on three
occasions: (1) immediately after the Accident for approximately three weeks;
(2) after the plaintiff’s neck surgery for approximately two weeks; and (3) from
December 2012 to March 2013.  She provided the plaintiff with personal care and
emotional support.  She performed all of the day-to-day household tasks and
child care that the plaintiff would otherwise have performed.

[106]     During the
first two of those occasions, the plaintiff was not mobile and was very
despondent.  She testified that the plaintiff attempts to be “deliberately
cheerful” but the pain and stress in her eyes belie those efforts.  During the
evenings, when there is no one else around, the plaintiff “falls apart”.

[107]     The
biggest change that Mrs. Lacey has noticed in the plaintiff since the Accident is
that she is no longer relaxed and easy going but rather is constantly “on
edge”.

[108]     On cross-examination,
Mrs. Lacey acknowledged that, in 2012, the plaintiff drove to Vancouver General
Hospital approximately once per week for two months while Mrs. Lacey was a
cancer patient there.

[109]     Mrs. Lacey
testified that the plaintiff’s children are now generally self-reliant in terms
of their meals.  She confirmed that the plaintiff is able to take her dogs for
walks.

[110]     She
testified that, in 2009, the plaintiff went on a family vacation to Mexico.

[111]     Mrs. Lacey
is the plaintiff’s mother and, as with most mothers, would be motivated to do
what she could to assist her daughter.  However, I found her to be an honest
and helpful witness whose evidence was balanced, sincere and credible.  I have
no difficulty accepting her evidence in its entirety.

Adam Cebula

[112]     Adam is
the plaintiff’s son.  He was 16 years old on the date of the Accident.  He is
now 22 years old.

[113]     He
described his mother prior to the Accident as outgoing, devoted and actively
involved in his upbringing and education.  She did most of the household chores,
both inside and outside of the house.  She was an avid bike rider and
participant in water sports.

[114]     She was
passionate about school teaching.  She coped well with full-time teaching and
raising her family.  She was not confrontational but was stern when she needed
to be.

[115]     As far as
Adam could tell, his mother was not physically or emotionally impaired in any
way prior to the Accident.

[116]     Adam
testified that when his mother returned home from the hospital after the
Accident she was quiet and in obvious pain.  She had difficulty sleeping.  In
the weeks and months that followed, the plaintiff’s life was spent in the
downstairs part of their home.  She was unable to involve herself in any
physical activities.  He has not seen her ride a bike or swim since the
Accident.  Their family vacations at Skaha Lake and Mexico were spent with the
plaintiff not participating in any activities but generally just observing the
activities of others.

[117]     The
plaintiff has become short-tempered and agitated at things that never bothered
her prior to the Accident.  She seems tense and anxious.

[118]     The
plaintiff’s memory has become demonstrably poor.  She seems to forget
conversations that took place an hour earlier.  She forgets to pay household
bills.  This has resulted in services being cancelled on occasion.  She often
complains of headaches.  On Mondays after the plaintiff has finished teaching
school, Adam typically finds her at home curled up on a couch with the lights
off.

[119]     The
plaintiff continues to choke on her food.  Whereas it used to be terrifying for
him, it has now become routine and commonplace.

[120]     On
cross-examination, Adam agreed that his mother walks the three family dogs and
occasionally goes for coffee with friends.   He also admitted that there is no
particular reason why he could not mow the lawn for his mother.

[121]     I found
Adam to be an honest and sincere witness who gave his evidence in a poised,
composed, forthright and even-handed manner.  I accept his evidence in its
entirety.

Shawna Petersen

[122]     Ms.
Petersen is the Vice-Principal, Curriculum, for the Chilliwack School
District.  One of her duties is to act as a “Helping Teacher” in classrooms
within the school district.

[123]     Ms.
Petersen met the plaintiff in 2005 when both were teachers at Watson Elementary
School.  They worked together for two years.  Ms. Peterson described the
plaintiff at that time as well organized, very calm, easy going and a teacher
who was very approachable and responsive to the needs of students.  She was
vivacious, communicative and lively.  She had a lot of interaction with
parents.  They went on combined field trips with their respective classes and
participated in professional development activities together.  They also
enjoyed time together outside of school hiking and working out in the gym.

[124]     After the
Accident, Ms. Petersen visited the plaintiff at her home approximately once per
month.  She described her as very quiet, withdrawn and disinterested in what
was going on at school.

[125]     Ms.
Petersen explained the “District Initiated Transfer” phenomenon pursuant to
which the plaintiff had lost her teaching position at Watson Elementary School
in September 2007.  The transfer occurred because of a decline in enrollment at
the school.  Correspondingly, other schools had an increase in enrollment such
that positions were posted in those other schools and it is likely that the
plaintiff would have received one of them given her job status.

[126]     Ms.
Petersen testified that she and the plaintiff often have dinner together. 
Since the plaintiff’s neck surgery, the plaintiff routinely chokes while eating
food.  Although she has managed to become more “efficient” at clearing her
throat and while the choking episodes are not as long now as they were
immediately after the surgery, they still occur virtually every time Ms.
Petersen sees the plaintiff eat.

[127]     Ms.
Petersen and the plaintiff no longer participate in physical exercise
activities together as they did before the Accident.

[128]     In the
Fall of 2010, Ms. Petersen worked with the plaintiff at Promontory School as a
Helping Teacher.  She worked with the plaintiff to plan a three day class, with
Ms. Petersen teaching the first day and the plaintiff observing, with the two
of them sharing the teaching duties the second day, and with the plaintiff
taking the teaching lead on the third day.  That plan did not come to fruition
because the plaintiff became anxious and uncertain about what she was to do and
did not participate as had been planned.  She struggled with letting the
students learn as had been planned and was overly rigid with the teaching
module.  Ms. Petersen described the plaintiff at the end of the three days as
tired and insecure.  She was questioning her skill as a teacher.  This was a
marked contrast to how the plaintiff had been prior to the Accident.

[129]     Ms.
Petersen has noticed significant changes in the plaintiff’s physical mobility
since the Accident.  She no longer turns her head but rather her shoulders.  The
plaintiff walks slowly, with those accompanying her positioned on her left side
as she is able to turn her body in that direction easier.

[130]     Although
Ms. Petersen is comfortable as a passenger in a vehicle driven by the
plaintiff, the plaintiff is not a good passenger because she is constantly
pointing out activities going on around the vehicle.  Parking a vehicle is an
issue for the plaintiff, as is pulling down the manual rear tailgate of a
minivan.

[131]     Ms.
Petersen was an impressive witness who gave her evidence in a straightforward
and forthright manner.  I have no hesitation accepting her evidence in its
entirety.

Maryanne Jonk

[132]     Ms. Jonk
met the plaintiff 15 years ago through their respective daughters who were in
pre-school at the time.  Their daughters became good friends.  They enjoyed
many summer activities together as their daughters were growing up.

[133]     Ms. Jonk
testified that when she was with the plaintiff prior to the Accident the
plaintiff never exhibited any physical problems or health issues.

[134]     After the
Accident, Ms. Jonk visited the plaintiff at her home and in the hospital.  It
was apparent to her that the plaintiff was not mobile and was in a lot of pain
and discomfort.  Movement of her neck and back appeared to be particularly
difficult for the plaintiff.

[135]     Ms. Jonk
confirmed that the plaintiff routinely choked on food after her neck surgery. 
She has noticed improvement and has recently observed the plaintiff able to eat
solid food without choking, although she has to take small bites and be
careful.

[136]     Ms. Jonk
has seen improvement in the plaintiff’s mood.  She appears happy in her new
relationship.

Sheila Denis

[137]     Ms. Denis
met the plaintiff 19 years ago when the plaintiff moved into a house across the
street from her.  She and the plaintiff have been friends ever since, although
they did not see a much of each other from 1999 to 2003 while Ms. Denis lived
in Calgary.

[138]     Ms. Denis
testified that prior to the Accident the plaintiff was a happy, outgoing person
with a good sense of humour.  She was fun to be around.  They went on walks
almost daily, hiked, rode bikes, went to the gym and went on shopping trips to
Vancouver.  As far as Ms. Denis observed, the plaintiff had no impairments
either physically or emotionally.

[139]     Since the
Accident, the plaintiff has become “harder to be around”.  She is not as happy
as she used to be.  She is now physically unable to engage in most of the
activities that she and Ms. Denis used to enjoy.  Their walks are limited to
less than thirty minutes.  As a consequence, Ms. Denis does not socialize with
the plaintiff as much as she did prior to the Accident.

[140]     Ms. Denis
confirmed the plaintiff’s limited activities during their annual vacations at
Skaha Lake.

[141]     Ms. Denis
observes the plaintiff having a choking episode almost every time they are
together for a meal.

[142]     Ms. Denis
testified that the plaintiff’s level of driving anxiety increased after
Accident No. 3 but now appears to be at the same level it was pre-Accident No.
3.  The plaintiff is an extremely nervous passenger.  She is much less anxious
when she is the driver.

Janet Carroll

[143]     Ms.
Carroll is the Acting Director of Human Resources for the Chilliwack School
District.  She has been in that position for approximately one year.  Previously
she was the District Principal of Human Resources for seven years.  Her
responsibilities included overseeing personnel matters relating to teachers within
the school district.

[144]     Ms.
Carroll confirmed that the plaintiff received a “continuing full time teacher”
posting at Watson Elementary School that was to commence on September 1, 2007.

[145]     In late
August 2007, the plaintiff met with Ms. Carroll to advise her that she had been
in a car accident and that she would be unable to work for a couple of weeks. 
Ms. Carroll looked at her condition (hobbling and walking with a cane, wearing
a neck brace and barely able to move) and immediately concluded that the school
district would not entertain her returning to work until she had received
medical clearance to do so.  She was placed on full time medical leave.

[146]     Shortly
thereafter, due to unexpectedly low enrollment at Watson Elementary School and
the plaintiff’s low seniority at the school, the plaintiff became a “District
Initiated Transfer with ‘A’ Status.  This meant that the plaintiff would receive
first consideration for a new position that became available within her area of
expertise and training and, until she is placed into a new position, she is
placed in a temporary position or becomes a teacher-on-call receiving her full
salary and benefits.

[147]     However,
that did not happen because the plaintiff was on full time medical leave due to
the Accident.

[148]     In the
spring of 2010, the plaintiff provided Ms. Carroll with medical documentation
clearing her to begin a transition back to work.  In conjunction with the
plaintiff and a union representative, Ms. Carroll created a plan for the
plaintiff’s return to work.  It involved the plaintiff initially job shadowing
in another teacher’s classroom at Promontory Elementary School (Mr. DeBruyn)
followed by a gradual increase in her classroom duties.  The plaintiff remained
on full time medical leave.  The plaintiff continued in that same roll during
the 2010/2011 school year.

[149]     For the
2011/2012 school year, the plaintiff was cleared by her physician for 20% of
full time work.  She was placed as a priority teacher-on-call at Promontory
Elementary School with pay at 20% of her full time salary.  Ms. Carroll
believed that, during her work day, the plaintiff filled in at other classrooms
in the school as needed.

[150]     Commencing
the 2012/2013 school year, the plaintiff was placed in a temporary part-time
position at Unsworth Elementary School, working one day per week for another
teacher who was on medical leave and could only work four days per week.  She
continued to be paid 20% of her salary.  She continues in that position for the
2013/2014 school year.

[151]     The school
district’s obligation to accommodate teachers like the plaintiff who have a bona
fide medical conditions or disability does not extend to creating new
positions for them.

[152]     If the
plaintiff receives medical clearance to increase her work from 20%, the school
district will do its best to accommodate her and would attempt to find a
position that fits the plaintiff’s abilities.  No such position is currently
available but vacancies and opportunities typically arise throughout the school
year.

Dolores Graham

[153]     Ms. Graham
is a senior payroll clerk employed by the Chilliwack School District.  She
testified regarding the salary that the plaintiff received, receives and would
have received but for the Accident.

[154]     Teachers
employed by the Chilliwack School District are paid and receive benefits in
accordance with the terms of a collective agreement with the B.C. Teachers’
Federation.  There has been no new collective agreement since 2010.  Teachers
continue to be paid in accordance with the terms of the agreement that was in
place in 2010.

[155]     Teachers
advance through their particular Category in steps, 0 to 10.  A new teacher
begins at Step 0.  After each eight to 10 months of service, a teacher moves to
the next pay step, effective January 1 or September 1 of the year as is applicable.

[156]     Effective
September 1, 2007, the plaintiff became a continuing full time teacher.  Her
pay rate was Category 5, Step 2.  Her full-time annual salary was $47,745 plus
a 2% salary indemnity, for a total of $48,700.

[157]     Had she
continued to work full-time, by the date of the trial she would have been paid
at the Category 5, Step 8 rate of $66,932 plus 2%, for a total of $68,271 per
year.

[158]     Because
she has only worked at 20% of her salary commencing September 2011, she is
still being paid at the Category 5, Step 2 rate.  If she continues to work only
20% of full-time, she will not achieve her Category 5, Step 3 pay rate until
January 1, 2015.

Mark DeBruyn

[159]     Mr. DeBruyn
is a grade 5 teacher at Promontory Elementary School in Chilliwack.  He
obtained his teacher’s degree from the University of British Columbia in 1992
and his Masters of Education Degree from San Diego State University in 1997. 
He has been a teacher within the Chilliwack School District since 1992.

[160]     Mr. DeBruyn
first met the plaintiff in 2004 when she was assigned as a student teacher to
his grade 5 class at Unsworth Elementary School.  He described the plaintiff as
a “natural teacher”, outgoing, energetic, an outstanding lesson planner and
easily able to establish a very good rapport with parents.  She did not lack
confidence as a teacher.  She did not exhibit any anxiety issues.

[161]     In the spring
of 2010, after the Accident, the plaintiff was placed in Mr. DeBruyn’s
classroom as part of her return to work program.  She was an observer and
volunteer.  She came in one-half morning per week.

[162]     Mr. DeBruyn
described the plaintiff as a very different person from when she had been his
student teacher.  She was “standoffish”, was no longer happy-go-lucky, did not
have the same energy that she had before and seemed to be in pain.

[163]     During the
2010/2011 school year, the plaintiff once again volunteered in Mr. DeBruyn’s
classroom.  He slowly began to encourage her to do some teaching but she, at
least initially, refused due to anxiety issues.  She was not confident in her
teaching ability.  However, she had a good rapport with the students and was able
to deal with them one-on-one.  She sat in a special high-backed chair that she
had moved into the classroom.  Sometimes the noise in the classroom would be
too much for the plaintiff and she would leave.  She was unable to accompany
the class on field trips.

[164]     For the
2011/2012 school year, the plaintiff once again assisted Mr. DeBruyn in his
classroom.  She worked Mondays.  By the end of that school year he had noticed
a general improvement in the plaintiff’s teaching capabilities, primarily
one-on-one with the students.  In his view, the plaintiff responded
appropriately and creatively with them.  Her confidence level had gone up but
she was still lacking the ability to maintain a level of energy that would
allow her to move around the classroom.  In Mr. DeBruyn’s view, the plaintiff’s
anxiety continued to be a stumbling block for her ability to increase her
teaching hours.

[165]     Mr. DeBruyn
does not recall that the plaintiff ever worked in any of the school’s
classrooms other than his own.

[166]     Mr. DeBruyn
has witnessed the plaintiff choking on food.

Nicole Olson

[167]     Ms. Olson
is a physiotherapist who treated the plaintiff from January 2008 until January
2009 when Ms. Olson went on maternity leave.

[168]     Her first
assessment of the plaintiff revealed minimal active range of motion in her
neck.  The plaintiff reported pain at all neck positions.  The plaintiff had no
mobility between the neck and the first level of her spine.

[169]     The
plaintiff regularly attended treatments with Ms. Olson twice per week for one
year.  She testified that, throughout, the plaintiff appeared to be
participating fully and trying her best.

[170]     By August
2008, the plaintiff was able to lift her arms above her head.

[171]     By October
2008, the plaintiff’s neck range of motion had improved and she was increasing
her activities of daily living.

[172]     It was
clear to me that Ms. Olson was an experienced and knowledgeable physiotherapist
whose observations and assessments I find were an accurate reflection of the
plaintiff’s physical and functional abilities and limitations.

Jeremy McAllister

[173]     Mr.
McAllister is a physiotherapist who began treating the plaintiff in February
2009 when Ms. Olson went on maternity leave.  He treated her two times per week
until August 7, 2009.

[174]     His
treatments were primarily exercised based rehabilitation.  During his treatment
sessions, he did not note any change in the plaintiff’s neck range of motion
from that documented by Ms. Olson.

Dr. Winston Gittens

[175]     Dr.
Gittens is a neurosurgeon who has been in practice in British Columbia since
1978.  He was the surgeon on call when the plaintiff was referred by the
Chilliwack General Hospital for neurological follow up for her neck injury.

[176]     Dr.
Gittens examined the plaintiff on July 19, 2009.  She had a fracture of her
cervical spine but Dr. Gittens felt that the fracture was likely stable and
could be managed by the plaintiff’s use of a neck collar.  He arranged to see
the plaintiff again in four to six weeks.

[177]     Dr.
Gittens saw the plaintiff next on September 12, 2007.  A recent CAT scan
disclosed evidence of displacement in the area of the plaintiff’s C6/C7
vertebra.  He ordered an MRI of her neck.

[178]     On October
4, 2007, Dr. Gittens discussed the MRI findings with the plaintiff.  It
confirmed a mal-alignment of the C6/C7 vertebra and a widening of the space
between them.  He recommended an operation to stabilize the neck at this level.

[179]     The
operation took place on November 14, 2007.  Dr. Gittens and his team removed
two pieces of bone from the plaintiff’s right pelvis, removed two discs
(between C5/C6 and C6/C7), replaced the discs with the bone grafts in order to
fuse the vertebra and installed a metal plate, with screws, to stabilize the C5
to C7 area.

[180]     During a
follow up examination on December 11, 2007, the plaintiff complained to Dr.
Gittens about dizziness and difficulty swallowing since the operation.  He
recommended an assessment by specialist.

[181]     During the
next follow up on February 5, 2008, Dr. Gittens found that, neurologically, the
plaintiff was healing well but recommended that she see an ear/nose/throat
specialist regarding her ongoing swallowing problems.

[182]     By Dr.
Gittens’ final examination of the plaintiff on March 11, 2008, he found that
the desired fusion of her neck had been achieved and he referred her to
physiotherapy and rehabilitation.

Dr. Brian Atkinson

[183]     Dr.
Atkinson has a Ph.D. in Psychology and is practiced in the assessment and
treatment of posttraumatic stress disorder (“PTSD”) and associated anxiety and
stress.  He was qualified to give opinion evidence in the field of clinical
psychology.

[184]     The
plaintiff was referred to Dr. Atkinson by a claims examiner at ICBC for
diagnosis and treatment.  He saw the plaintiff on January 14 and 27, 2010 for
the purpose of gathering her history.  He diagnosed that the plaintiff was
suffering from PTSD with some elements of depression.

[185]     He opined
that the plaintiff’s anxiety and PTSD was from two sources: (a) a generalized
sense of feeling threatened, and (b) severe phobia surrounding driving a car. 
Contributing medical conditions included her restricted head movement. 
Contributing social stressors included the separation from her spouse, her
disengagement from teaching, the loss of her father and her mother’s cancer. 
He found that the plaintiff’s General Adaptive Function was 55 out of 100,
meaning that she was compromised to a serious degree.

[186]     Dr.
Atkinson treated the plaintiff on almost a weekly basis from March 15 to May
19, 2010.  During the treatment sessions, Dr. Atkinson found that the plaintiff’s
phobia issues were not limited to driving a vehicle.  He expanded the treatment
to address her socialization issues.  She was having difficulty legitimizing
her role as a teacher.  He worked with the plaintiff on building her confidence
and effectiveness in this regard.

[187]     Dr.
Atkinson agreed on cross examination that the plaintiff’s increased anxiety
after Accident No. 2 was something he would have expected.

[188]     By the end
of his sessions with the plaintiff, Dr. Atkinson has seen some improvement,
although she continued to exhibit PTSD and some elements of depression.  He was
encouraged to perceive an increased flexibility in the plaintiff’s thinking and
the enhanced ability to identify broader perspectives while she struggled to
redefine herself in light of the effect that the Accident had on her.  He
attributed the plaintiff’s improvement to her drive to move forward with her
life and her strong work ethic.

[189]     He opined
that the plaintiff was a powerful woman who copes in spite of her severe,
chronic pain, although by May 2010 she still had “a long road to travel before
her recovery is as complete as it becomes”.

Dr. Murray Morrison

[190]     Dr.
Morrison is a physician who has specialized in otolaryngology for several
decades.  His practice is limited to laryngology (diseases of the throat),
specifically voice, breathing and swallowing.  He is a retired professor in the
Faculty of Medicine at the University of British Columbia.

[191]     Dr.
Morrison was qualified as an expert in otolaryngology and specifically as a
laryngologist.  He was eminently experienced to provide opinion evidence in
that field.

[192]     In Dr.
Morrison’s opinion, the plaintiff is having problems swallowing because, in
layman’s terms, the bone graft and insertion of a plate in her cervical spine
has left a “mass” between her cervical spine and her larynx (voice box) that
has bulged forward into her hypopharynx (bottom part of the larynx).  This mass
has created a “pocket-like” area in the right side of her throat that collects
saliva.  The plate impedes the plaintiff’s ability to clear food from the area.

[193]     Dr.
Morrison has ruled out that the plaintiff’s choking is caused by natural reflex
brought on by anxiety or by irritation of the esophagus with stomach acid,
although he agreed that this could be a contributing factor.  In his opinion,
the main factor causing her choking is the plate in her neck.

[194]     Dr.
Morrison opined that an option for the plaintiff is the removal of the plate
from her neck but he was not competent to opine on the resulting stability of
her cervical spine or on any associated risks that may exist with such a
procedure.

Dr. Neil Longridge

[195]     Dr.
Longridge is an otolaryngologist.  He obtained his medical degree from the
University of Newcastle-upon-Tyne in 1969.  He obtained his PhD in Medicine
from the same institution in 1987.  He is currently a clinical professor of
Otolaryngology at the University of British Columbia.  He has been in that
position since 1994.  His particular specialty is otology, diseases of the
ear.  One of his sub-specialties is “balance diseases”.

[196]     He was
qualified without debate as an expert in the field of otolaryngology and, in
particular, otology and balance diseases.

[197]     Dr.
Longridge examined the plaintiff on November 18, 2009 regarding her complaints
of dizziness and muffled hearing in her right ear.

[198]     In Dr.
Longridge’s opinion, the plaintiff’s dizziness is caused by Benign Paroxysmal
Positional Vertigo which was most likely instigated by the Accident.  A blow to
or rapid deceleration of the head causes calcium carbonate particles within the
ear systems to become dislodged due to their weight being three times more than
the liquid they are normally resting in.  These particles float around within
the ear and eventually affix to the posterior semi-circular canal and cause
acute vertigo.  This affliction frequently does not resolve.  Her symptoms are
mild but are ongoing.  In Dr. Longridge’s opinion, it is likely that this
condition will be present on a long-term, permanent basis.

[199]     On
cross-examination, Dr. Longridge agreed that all of the testing for dizziness
gave results that were normal and that his opinion is based entirely upon the
plaintiff’s subjective complaints.

[200]     Dr.
Longridge was unable to find any abnormality that would cause a muffled
sensation in the plaintiff’s right ear.  In his experience, many people who are
involved in motor vehicle accidents and incur a blow to or rapid deceleration
of the head have significant reduction in their hearing ability, particularly
in crowds, yet no abnormalities are found.  He opined that this could mean that
either the tests used are not sophisticated enough to detect cochlear
abnormalities or that the damage is in the higher cortical function in the
brain and the testing does not measure this area.

[201]     Dr.
Longridge was an impressive expert witness with vast knowledge and experience
in otology.  I accept his opinions in their entirety.

Dr. Alastair Younger

[202]     Dr.
Younger is an orthopaedic surgeon who examined the plaintiff on June 9, 2009. 
He prepared a medical/legal report dated that same day.  The report was
tendered in evidence by agreement without the need for Dr. Younger to attend at
trial for cross-examination.

[203]     Dr. Younger
opined that all of the plaintiff’s ankle and knee complaints related to the
Accident.

[204]     He opined
that the plaintiff may require surgery to remove the screws in her right
ankle.  If the area becomes arthritic, she may require fusion of the subtalar
joint region.

[205]     He also
opined that the plaintiff will likely have ongoing knee discomfort that may
restrict her activities.

Dr. Randall Locht

[206]     Dr. Locht
performed surgery on the plaintiff’s right ankle on July 25, 2007.  He prepared
a medical/legal report dated February 25, 2013.  He was qualified without
debate as an orthopaedic surgeon with expertise to provide opinion evidence
regarding the plaintiff’s ankle injury and knee pain, her prognosis for
recovery and the likely need for further care.

[207]     The
plaintiff’s ankle surgery involved reduction (returning it to its original
position) and fixation (with screws) on her right ankle.  Dr. Locht noted at
the time that the plaintiff had bilateral knee bruising.

[208]     Subsequent
x-rays in October 2007 demonstrated that the plaintiff’s ankle was well aligned
and healed.  However, the plaintiff still complained of ankle pain.

[209]     Dr. Locht
saw the plaintiff next on March 24, 2009 for her right knee pain.  He detected
pain with patellofemoral compression testing and tenderness on the inferior and
medial aspect of the anterior knee.  X-rays indicated mild degenerative changes
to the patellofemoral joint.  He diagnosed early-stage patellofemoral
osteoarthritis and recommended strengthening exercises.

[210]     Dr. Locht
saw the plaintiff next on December 20, 2010 and again on October 16, 2012
regarding her ongoing right knee pain.  His diagnosis remained unchanged.

[211]     He
assessed her again on February 12, 2013.  X-rays showed that her right ankle
had healed and there was no evidence of arthritis or any other degenerative
changes.  He opined that the continuing pain in her right ankle is likely
caused by irritation from the surgical screw heads and possibly from posterior
tibial tendonitis related to the Accident.

[212]     Dr. Locht
addressed in his report the various prognosis concerns that were raised by Dr.
Younger in his report.

[213]     No
abnormalities were found in the plaintiff’s right knee.  In Dr. Locht’s
opinion, the plaintiff suffered a blunt anterior knee trauma during the
Accident which induced articular cartilage injury.  This injury caused ongoing
subclinical inflammation as well as increased subchondral bone pain from loss
of the normal shock absorbing properties of the cartilage.  He considers this
to be a form of early arthritis.  In his opinion, the plaintiff’s knee injury
will not recover any further and that she will have ongoing knee discomfort. 
He recommends continued use of a knee support sleeve and exercise.

[214]     Dr. Locht
also recommends that the screws in the plaintiff’s right ankle be removed,
although there is less than a 50% chance that removal will substantially reduce
her ankle pain.

Dr. Mark Z. Matishak

[215]     Dr.
Matishak is a staff neurosurgeon and Chief of Surgery at the Royal Columbian
and Eagle Ridge Hospitals.  He was certified as a specialist in neurosurgery in
1994.  He was qualified, without debate, as an expert in that field.

[216]     Dr.
Matishak conducted a medical examination of the plaintiff on September 15, 2009
for the purpose of assessing the degree of function of her musculo-skeletal
nervous system.

[217]     His
examination of the plaintiff revealed that she was unable to move easily and
was in some degree of pain.  He observed that her neck range of motion was
limited.  She was unable to forward flex her neck beyond 30 degrees (full
flexion is 80 to 90 degrees) and could not extend her neck at all (normal
extension is 30 degrees).  Her lateral flexion was approximately ten degrees
(normal lateral flexion is 20 to 30 degrees).

[218]     Dr.
Matishak testified that the process of fusion, which was the purpose of the
plaintiff’s neck surgery in November 2007, takes place over time.  Therefore,
the plaintiff’s neck range of motion could have improved or deteriorated
depending upon when it was tested.

[219]     His
examination of the plaintiff’s motor functions indicated that her upper and
lower limb neurological functions were normal.

[220]     Dr.
Matishak found that the plaintiff had a mild “bowing” of the spine caused by
her spine attempting to compensate for the fusion in her neck.

[221]      He opined
that the following injuries suffered by the plaintiff were caused by the
Accident:

a)   
cervical spine fracture;

b)   
right medial malleolar fracture;

c)    
soft tissue knee injury;

d)   
choking issues;

e)   
chronic pain in her neck and thoracic spine;

f)     
chronic pain syndrome; and

g)    reactive
depression.

[222]     In Dr. Matishak’s
opinion, there is no neurological surgery that can be performed to improve the
plaintiff’s condition.  Removal of the plate in her neck is an option for her
and is a relatively low risk procedure from a neurological perspective, however
there is risk of damage to the trachea, esophagus, vocal chords and carotid
artery.  Dr. Matishak has performed between 1,000 and 2,000 surgeries to insert
plates and between 20 to 30 surgeries to remove them.  He has not seen any
serious complications from the removal surgeries but neither has he seen
overwhelming benefit.  Only approximately one-half of the patients have noted
some improvement from the plate removal surgery.

[223]     He opined
that Accident No. 2 did not significantly impair or reduce her recovery, although
it did exacerbate her cervical spine injury.  In his opinion, Accident No. 2
did not contribute significantly to the plaintiff’s current complaints.

[224]     Dr.
Matishak was an impressive witness whose opinions I accept in their entirety.

Dr. Gordon Robinson

[225]     Dr.
Robinson is a neurologist with particular expertise in headache disorders.  He
was qualified, without debate, to provide expert evidence regarding the
plaintiff’s headache complaints.

[226]     Dr.
Robinson examined the plaintiff on November 3, 2009.  He found no apparent
deficits in attention, language or memory.  His eye and neurological
examination of her was normal, as he expected it would be.  However, the
plaintiff’s cervical spine was abnormal.  She had marked restriction of lateral
rotation.  Her forward flexion was approximately 20 to 30 degrees, whereas
normal is 80 to 90 degrees.

[227]     Dr.
Robinson is doubtful that the plaintiff sustained a head injury or damage to
her nervous system as a result of the Accident.

[228]     Dr.
Robinson opined that the plaintiff’s frequent headaches are probably related to
the soft tissue injury of her cervical spine.  They were briefly aggravated by
Accident No. 2.  He agreed on cross-examination that there is a high
co-relation between anxiety, PTSD, and headaches.  He agreed that successful
treatment of the plaintiff’s PTSD would likely have a beneficial effect on her
headaches.

[229]     He doubts
that there is any physical therapy that will substantially benefit or cure the
plaintiff’s headaches, although she may respond favourably to enrollment in a
multidisciplinary pain program, such as one that is offered by St. Paul’s
Hospital.

[230]     Dr.
Robinson, too, was an impressive witness who was plainly knowledgeable in his
field of expertise.  I have no difficulty accepting his opinions in their
entirety.

Dr. Julia Bright

[231]     Dr. Bright
is a general practitioner with a practice in Chilliwack.  She has been the
plaintiff’s regular family physician since July 19, 2007, three days after the
Accident.

[232]     She was
qualified without debate as an expert in the field of family medicine.

[233]     In October
2007, Dr. Bright advised the plaintiff that she would likely be unable to
resume her teaching position that school year.  Among the plaintiff’s many
other symptoms, Dr. Bright also diagnosed a soft tissue injury to the
plaintiff’s right knee.

[234]     The
plaintiff consulted with Dr. Bright many times per year since the Accident. 
Dr. Bright continued to assess her as not being ready to return to work due to
her ongoing pain.  On February 8, 2010 she provided the plaintiff with a note
indicating that she was medically clear to begin to do volunteer work at the
school.  Dr. Bright thought it was possible that the plaintiff’s choking sensations
could be related to her anxiety.

[235]     Throughout
the consultations, Dr. Bright assessed the plaintiff as having continued
anxiety and chronic pain in her back and neck as well as right knee pain.  Dr.
Bright anticipates that the plaintiff will have long-standing pain as a result
of her Accident-related injuries and is doubtful that the plaintiff will return
to full time teaching.

Dr. Theo van Rijn

[236]     Dr. van
Rijn is a physiatrist who has specialized in physical medicine and
rehabilitation in British Columbia since 1983.  He was qualified without debate
to provide opinion evidence in that field.

[237]     Dr. van
Rijn examined the plaintiff on October 1, 2009.  His medical-legal report,
filed as an exhibit in this action, is dated that same day.

[238]     His
findings included a hyperactive response during his examination of her throat
that caused the plaintiff to experience a choking sensation, as well as
severely restricted neck range of motion.  Dr. van Rijn found no neurological
basis for the plaintiff’s arm numbness.  She had no limitation of her lower
back movement.  She was unable to stand unsupported on her right leg because of
ankle and foot pain.

[239]     In Dr. van
Rijn’s opinion, the plaintiff’s complaints of memory and concentration loss are
likely related to her chronic pain, rather than intrinsic brain dysfunction
associated with the Accident.

[240]     He opined
that the plaintiff’s Accident-caused neck movement limitations and pain are the
likely cause of her headaches, which radiate from her neck up into her
forehead.  The plaintiff’s upper back and shoulder pain are the result of
trauma to that region of her body as a result of the Accident.

[241]     Dr. van
Rijn was unable to undertake tests regarding the plaintiff’s right shoulder, arm
and hand pain due to limitations in her neck range of motion.  He opined that
the pain may relate to stressing of the plaintiff’s neck and thoracic outlet
area when she has her arm elevated.

[242]     He opined
that the pain in the plaintiff’s hip at the bone donor site may persist
indefinitely.

[243]     He opined
that the plaintiff’s right knee was likely injured in the Accident and that it
might be rendered more vulnerable to the effects of subsequent trauma.

[244]     In Dr. van
Rijn’s opinion, the plaintiff may learn to cope with her pain and certain
aspects of her emotional well-being but will likely experience ongoing problems
related to pain and functional limitations as a result of her Accident-related
injuries.  Certain aspects of her daily living will likely be compromised,
including personal care, leisure and recreational activities and physical
relationships.

[245]     In
summary, it is Dr. van Rijn’s opinion that the Accident caused a considerable
alteration in the plaintiff’s quality of life that will likely continue,
although with some possible improvement.  Her physical limitations and chronic
pain will restrict the plaintiff in her job functions and she will need
accommodations from her employer.  The plaintiff’s functional limitations will
“wax and wane in intensity” during her lifetime.  The effects of her
Accident-related injuries may become more onerous as she ages.

[246]     Dr. van
Rijn opined that the plaintiff will likely require ongoing assistance for house
and yard maintenance as well as ongoing psychological counselling.

Michelle Hodson

[247]     Ms. Hodson
is a certified occupational therapist who was requested by ICBC to assess and
worked with the plaintiff.  She did so from July 2009 to July 2010, on at least
a bi-weekly basis.

[248]     Ms. Hodson
recommended a psychological assessment of the plaintiff by Dr. Atkinson.  She
also implemented occupational therapy, kinesiology and physiotherapy programs
for the plaintiff.  Those programs included a 10 to 12 week Progressive Goal
Attainment Program and a Stress Anxiety Program.  The goal of the former was to
increase the plaintiff’s level of pain tolerance and to set the parameters for
a graduated return to work program.  The goal of the latter was to teach the
plaintiff self-control strategies for managing her anxiety.  The plaintiff
completed all aspects of both programs.

[249]     In
addition, Ms. Hodson assisted the plaintiff to become more independent in terms
of her activities of daily living, including personal care and homemaking
tasks.  Through the purchase of various devices, such as a light vacuum,
long-handled duster, hair brushes etc., the plaintiff has become able to
increase her capabilities in this regard.  Ms. Hodson testified that, at least
as of July 2010, the plaintiff will continue to require outside assistance for
heavier household cleaning tasks.

[250]     Ms. Hodson
participated with the school district, the union and the plaintiff in planning
and implementing her graduated return to work program.

Derek M. Nordin

[251]     Mr. Nordin
is a vocational rehabilitation consultant.  He was qualified without debate as
an expert in the field of vocational rehabilitation.

[252]     Mr. Nordin
conducted an interview and a series of vocational test batteries with the
plaintiff in October 2012.

[253]     In Mr.
Nordin’s opinion, the plaintiff’s demonstrated tenacity in completing post-secondary
education some 20 years after high school is indicative of her likelihood that
she would have taken advantage of additional education credentialing to
increase her earning potential.

[254]     In his
opinion, the plaintiff is presently not capable of returning to her
pre-Accident position of full-time teaching.  He expects that the plaintiff
will continue to work part-time for the foreseeable future.  In his view, the
accommodations that the School District has put in place likely provide one of
the best settings for the plaintiff to remain productively involved in the
workforce.  However, she may ultimately find that even part-time work is too
challenging for her.

[255]     Mr. Nordin
agreed on cross-examination that, although the plaintiff may be limited by the
number of days she can spend in the classroom, there are other potential
positions for her, such as tutoring, but pointed out that her ability to do so
would depend on her stamina and fatigue levels.

[256]     He also agreed
on cross examination that knowledge of the subsequent opinion of Dr. Randall
Locht, an orthopaedic surgeon, to the effect that the plaintiff’s right knee
and ankle were not likely to be a barrier for her working as a schoolteacher or
similar vocation would have been useful information for him to have had. 
However, Mr. Nordin’s opinion did not change.

Edgar Emnacen

[257]     Mr.
Emnacen is an Occupational Therapist who was qualified without debate as an
expert in that field with particular expertise in functional capacity
evaluation.

[258]     Mr.
Emnacen evaluated the plaintiff on December 7, 2010 and again on February 9,
2012 for the purpose of determining her functional abilities and limitations.  Each
evaluation session lasted between seven and eight hours.

[259]     Although
he reported that the plaintiff completed the evaluation with “mixed effort
levels”, those mixed levels were in part due to Mr. Emnacen not challenging the
plaintiff sufficiently for her to need to give a higher level of effort.  Overall,
the plaintiff’s behaviour was consistent with the plaintiff trying her best to
perform the tasks asked of her.  Mr. Emnacen opined that his findings provide a
reasonable measure of the plaintiff’s physical capabilities and limitations.

[260]     All of the
plaintiff’s symptoms were consistent with injury.  She demonstrated limited neck
and shoulder ranges of motion (right side more than left side) and limited
ability for sustained neck flexion, forward and overhead reaching (again more
with the right hand) and stooping/bending postures.  She experiences headaches
and dizziness with activities involving neck flexion and extension and with
quick or repetitive stooping movements.  Sustained low level work is done with
left sided kneeling or while sitting on the ground.

[261]     The
plaintiff demonstrated that she could perform various body range of motion
tasks but with aggravated pain.

[262]     Mr.
Emnacen limited his evaluation of her ability to lift, carry, push and pull to
the levels that would be required of her as an elementary school teacher.  She
demonstrated an ability to meet light strength capacity.

[263]     Mr.
Emnacen opined that the plaintiff has made improvements in some aspects of her
functioning since his evaluation of her on December 7, 2010, however she continues
to experience similar symptom reactivity to her stressors that continue to
affect her ability to progress with and manage her work demands.

[264]     During a
telephone follow up with the plaintiff five days after his second evaluation of
her, she reported that within three days of the evaluation her symptoms had
returned to the levels they had been prior to the evaluation.

[265]     In Mr.
Emnacen’s opinion, the plaintiff does not have the capacity to meet the
physical demands of full-time work as an elementary school teacher.  She will
likely continue to experience neck, shoulder and back symptom aggravations, as
well as headaches and dizziness, with activities that require right side
forward and overhead reaching, neck flexion and extension and stooping/forward
bending, such as with writing on a whiteboard or overhead projector and with
bending down and viewing work at the student’s desk.

[266]     Mr.
Emnacen opined that, at least currently, the plaintiff is best suited for
working on a part-time basis.  Her ability to work on a durable full-time basis
in the future is guarded.

[267]     Mr.
Emnacen made several recommendations for allowing the plaintiff to maintain and
improve her functioning abilities:

a)   
continued regular exercise to address her neck, back and shoulder
symptoms and overall conditioning.  In his opinion, she would benefit from four
to six kinesiology sessions (cost: $240-$360);

b)   
further sessions with a psychologist to assist with managing her pain
and developing more active pain management strategies, especially when she
attempts to increase her work hours (approximate cost for testing and
30treatment sessions: $7,000);

c)    
continued use of ergonomic aids at home and at work, including her high
back chair.  She would benefit from a review of her ergonomic set up in her school
classroom (cost: $836);

d)   
use of a slant board to view work materials (cost $205);

e)   
use of a low stool as an alternative to crouching, kneeling and bending
(cost $10 – $20); and

f)      supervision
by an occupational therapist when she attempts to increase her work hours who
would assist in developing a plan and would monitor her as she implements that
plan (cost $1,100 to $1,540).

[268]     I found
Mr. Emnacen to be a straightforward, forthright and candid witness who provided
his opinions in an objective and professional manner.  I accept them in their
entirety.

Curtis Peever

[269]     Mr. Peever
is an economist with particular expertise in labour economics.  He was
qualified to give opinion evidence in his field of expertise.

[270]     Mr. Peever
provided the court with a series of tables and calculations regarding the
plaintiff’s present valued past loss of earnings, future loss of earnings, loss
of benefits, including pension benefits and costs of future care.  His tables
and calculations were based upon the assumption that the plaintiff would have
advanced from Category 5 to Category 5 Plus on September 1, 2009.  He also
provided tables and calculations based upon the assumption that the plaintiff
would have advanced from Category 5 Plus to Category 6 (based upon her having
received her Master’s degree) on September 1, 2013.

[271]     Mr.
Peever’s estimate of the plaintiff’s past loss of earnings, net of taxes and Employment
Insurance (“EI”) premiums, is $274,000, assuming the plaintiff would have
advanced from Category 5 to Category 5 Plus on September 1, 2009 and obtained
her Master’s Degree and advanced from Category 5 Plus to Category 6 on September
1, 2013.  On cross examination, Mr. Peever agreed that his calculation of past
loss of earnings would be reduced by approximately $16,000 (to $258,000) if the
plaintiff would have stayed at Category 5.

[272]     Mr. Peever
assumed that a person with a Master’s degree will be more desirable to the
employer and will be more committed and attached to the labour market than
someone without a Master’s degree.  Accordingly, he based his future loss of
earnings calculations on a lower risk that the plaintiff would be forced out of
the labour market into unemployment or into part-time employment and a lower
risk that the plaintiff would chose to leave the full-time labour market.

[273]     Assuming
the plaintiff was a Category 6 teacher on September 9, 2013 (the first day of
trial) and retired at the age of 65, and assuming that post-Accident the
plaintiff continued to work one day per week at 20% of her full time salary, and
taking into consideration various risk factors and contingencies, Mr. Peever
calculated the present value of her future earning loss at $786,400 – $110,500
= $675,900.  His equivalent calculation based upon the assumption that the
plaintiff would have advanced from Category 5 to Category 5 Plus by September
1, 2009 is $659,500.

[274]     Based upon
the same assumptions, Mr. Peever calculated the present value of plaintiff’s
future loss of pension benefits, net of contributions, to be $64,000.

[275]     Mr. Peever
agreed on cross-examination that his use of 6% to calculate the plaintiff’s
future loss of mandatory EI benefits was too high and should be reduced because
of his use of high labour force participation percentages.  He also agreed that
the income multipliers he used should be reduced by 20% to reflect the negative
contingencies for his “risk and choice” models.

[276]     Mr. Peever
provided tables setting out cost of care multipliers and the present value
calculations regarding the plaintiff’s cost of future care.

THE DEFENDANTS’ CASE

[277]     I am
advised that the defendant, Stella Smith, is elderly and resides in a nursing
home.  She did not testify.

[278]     The
following witnesses were called by the defendants.

Lindsay Townsend

[279]     Ms.
Townsend is an occupational therapist with expertise in functional capacity
evaluations.  She was qualified without debate to provided expert evidence in
that field.

[280]     Ms.
Townsend assessed the plaintiff on May 2, 2013 for approximately seven hours,
including a one-half hour lunch break.  Her expert report is dated June 3, 2013. 

[281]     Ms.
Townsend assumed that the plaintiff began a graduated return to work program in
February 2010, comprising two hours per day, two mornings per week.

[282]     Ms.
Townsend agreed that headaches, dizziness and hearing difficulties and
psychological issues can severely impact a person’s ability to work.

[283]     Ms.
Townsend’s assessment of the plaintiff’s functional abilities and limitations
is that a full work day would be intolerable for the plaintiff.  However,
despite her daily pain, fatigue and headaches, she has the potential to
tolerate a maximum of three to four hours of work per day, five days per week
provided she limits herself to short periods of sitting, brief periods of mild
stooping, avoids sustained or repetitive reaching, power gripping, neck
flexion, stooping, crouching, kneeling and higher level balancing. 

[284]     Ms.
Townsend’s clinical records were put to her on cross-examination.  In them, she
recorded that the plaintiff was “feeling exhausted” after three hours.  She did
not make any mention of this in her report, although she did identify in her
report that, by the end of her assessment, the plaintiff was reporting high and
in some instances excruciating pain.

[285]     On
cross-examination Ms. Townsend maintained that she had taken the plaintiff’s
psychological challenges into account in arriving at her functional capacity
assessment because the plaintiff had indicated to her how difficult it had been
to get back into the classroom and was only able to do so through mentoring.  She
made no mention in her report of the plaintiff’s ongoing anxiety in the
classroom and lack of confidence in her ability to teach.

[286]     She
conceded on cross-examination that the three to four hours per day includes
non-classroom time such as marking students’ work at home.  Ms. Townsend was
not aware of the plaintiff’s evidence that she tolerates only 45 to 60 minutes
of marking at home (approximately five of her 28 students) before she needs to
take a break and that, after working Mondays, it generally takes her the rest
of the week to complete this task.

[287]     Ms.
Townsend agreed that test results are only one piece of the puzzle.  To be
accurate, a functional assessment must also consider how the person is coping
in her day-to-day life.

[288]     Ms.
Townsend’s opinion is limited to the immediate future.  Unlike Mr. Emnacen, she
did not provide an opinion on the plaintiff’s long term future functional
abilities and limitations.

Mark E. Gosling

[289]     Mr.
Gosling is an economist with expertise in economic loss assessment and labour
economics.  He was qualified without debate as an expert in those fields.

[290]     Mr.
Gosling provided a detailed report commenting on Mr. Peever’s report and
setting out alternative income and pension loss calculation based upon various
absent-accident and with-accident assumptions and scenarios.

[291]     Mr.
Gosling pointed out that the financial benefits for a teacher moving from
Category 5 to Category 5 Plus are significantly higher than those between
Category 5 Plus and Category 6.

[292]     Like Mr. Peever,
Mr. Gosling provided the court with a series of tables and calculations
regarding the plaintiff’s present valued past earnings loss, future loss of
earnings and loss of pension benefits.  His tables and calculations assumed
various scenarios where the plaintiff stayed at Category 5, advanced to
Category 5 Plus on September 1, 2013 and retired at different ages.

[293]     Mr.
Gosling’s opinion is that the possibility of the plaintiff becoming unemployed
or involuntarily being moved to part-time employment should reduce the figures
in his tables by 3%.  In addition, his calculations of absent-accident earnings
and pension benefits must be reduced by 10% to account for the impact of
voluntary part-time work.

ANALYSIS

a)       Liability

[294]     The
evidence is overwhelming and uncontradicted that the defendant, Stella Smith,
drove across the two yellow center lines on Vedder Road and into the lanes of
oncoming traffic, impacting the Pickup or its trailer, which caused the trailer
to separate from the Pick-up and collide with the plaintiff’s vehicle.  Ms.
Smith’s vehicle then collided with the plaintiff’s vehicle in the southbound
lane.

[295]     The
defendant, Stella Smith, was negligent and was solely responsible for the
Accident and for the injuries sustained by the plaintiff as a result of the
Accident.  John Smith, as the owner of the Nissan at the time of the Accident, was
liable for the negligence of Stella Smith pursuant to s. 86 of the Motor
Vehicle Act RSBC 1996 c. 318.  His liability is now that of his estate.

[296]     The “but
for” test is the general test for factual causation: the plaintiff must prove
on a balance of probabilities that but for the defendant’s negligence, she
would not have suffered her injury.  The defendant’s negligence must have been
a necessary cause of the injury.  This test was most recently summarized and
affirmed by the Supreme Court of Canada in Clements v. Clements, 2012
SCC 32 at paras. 8 – 10 (see also Ediger v. Johnston, 2013 SCC 18 at
paras. 28 – 29).

[297]     On the
basis of the evidence before me, I find that the plaintiff has established that
the injuries she sustained to her neck, shoulders and upper back, right knee
and right ankle, as well as her PTSD, sleep disturbances and anxiety were
caused by the Accident.  I also find that the plaintiff’s swallowing difficulties,
dizziness and voice problems were the result of her neck surgery that was
itself necessitated by the Accident.  The infection in her hip at the site of
her bone graft was also the result of her neck surgery.  Her headaches have
been aggravated by the Accident.  It is more probable than not that these
injuries and other conditions would not have occurred but for the Accident.

b)       Damages

[298]     Prior to
the Accident the plaintiff was a healthy, happy, fun-loving, physically active
and easy going single mother of two teenagers.  She regularly exercised in the
gym, ran, hiked and went bike riding.  She participated in water sports.  She
had an active social life.

[299]     The
plaintiff did most of the housekeeping, yard work and shopping for her home.

[300]     The
plaintiff was successful in and passionate about her career as an elementary
school teacher.  She was fully immersed in teaching, school choir presentations
and the smart reader program.  She had a very good rapport with her students
and their parents.  Just one month before the Accident, the plaintiff received
the security of a continuing full-time position with the Chilliwack School
District.

[301]     As a
result of the Accident, the plaintiff’s life changed permanently and dramatically. 
The various surgeries she underwent, the chronic pain and headaches, the long
period of only partial recovery, the limitations on her mobility and her
inability to continue in her teaching position has had a significant effect on
both her physical and psychological wellbeing.  She has withdrawn from her
social network and previous social activities.  She is short-tempered and not
as much fun to be around.  Driving has become stressful and anxious for her. 
It is worse when she is a passenger.  The dizziness and choking that began
after her November 2007 neck surgery continue to this day.  She is unable to
take care of her home and garden except for minor housekeeping tasks.

[302]     The
plaintiff has become anxious and has lost confidence in her ability to be an
effective teacher.  Teaching is no longer the joy that it was for her prior to
the Accident.  Although psychological treatment and other encouragement enabled
her to gradually return to work, she is only able to teach in the classroom one
day per week.  That one day takes a toll on her such that she requires the
remainder of the week to recuperate and prepare for the next work day.

[303]     The plaintiff
was in obvious pain and discomfort while she was testifying.  It is clear to me
that the Accident has caused her significant stress and anxiety and
significantly affected her ability to function and cope with daily life, a
marked change from her life prior to the Accident.

[304]     The
evidence is that Accident No. 2 resulted in a new injury to the plaintiff’s
left shoulder blade area as well as aggravation of her driving anxiety and
injuries she sustained in the Accident.  Accident No. 3 further aggravated
those injuries and anxiety.

[305]     The
uncontradicted evidence of the plaintiff is that the injuries she sustained in
Accident No. 2 and Accident No. 3 were caused by the vehicles that rear-ended
her.  I find that she was not contributorily negligent for those rear-end
collisions.  Rather, those collisions were caused by the unidentified drivers
of the vehicles that rear-ended hers.  With the exception of the plaintiff’s
left shoulder area injury, all of the injuries she sustained in Accident No. 2
and Accident No. 3 were aggravations of the injuries she sustained in the
Accident.  These injuries cannot be attributable to one particular tortfeasor. 
They cannot be divided into distinct parts and are therefore “indivisible” from
her Accident-related injuries.

[306]     Tortfeasors
whose tortious acts combine to produce indivisible injuries are jointly and
severally liable for the full extent of the injury: Athey v. Leonati,
[1996] 3 S.C.R. 458 at 467-468; B.P.B. v. M.M.B,2009 BCCA 365 at para.
72; Bradley v. Groves, 2010 BCCA 361 at para. 37.  Accordingly, there is
no need for the court to determine the extent to which the plaintiff’s
Accident-related injuries were aggravated by Accident No. 2 and Accident No. 3.

[307]     I am
advised that the plaintiff has settled her claim relating to Accident No. 2.  I
was not advised of the settlement amount.  There has yet been no settlement of
or even a formal claim brought in respect of Accident No. 3.

[308]     That
portion of the settlement amount attributable to the plaintiff’s indivisible
injuries (the plaintiff’s left shoulder injury is a distinct injury from
Accident No. 2) must be deducted from any damages award in this action: Ashcroft
v. Dhaliwal, 2008 BCCA 352.

(i)       Non-Pecuniary Damages

[309]    
The considerations to be taken into account by a court in assessing
non-pecuniary damages were set out in Stapley v. Hejslet, 2006 BCCA 34
at para. 46:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

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

[310]     The
plaintiff submits that an award in the range of $185,000 to $225,000 for
non-pecuniary damages is appropriate in this case, including $25,000 as
compensation for her swallowing difficulties and choking.  She relies on the
following decisions:

a)   
Marois v. Pelech, 2007 BCSC 1969 ($130,000);

b)   
E.(A.) (Litigation Guardian of) v. J. (D.W.), 2008 BCSC 1318 ($150,000);
and

c)     Felix
v. Hearne Estate, 2011 BCSC 1236 ($200,000).

[311]     In Marois,
the plaintiff was a woman in her mid-fifties who led a physically active life,
raised two children as a single mother, was active in her community, maintained
her home and property and worked part-time at her family’s restaurant.  After
the accident, the plaintiff’s house fell into a state of uninhabitable
disrepair and she lived in a basement suite at her mother’s residence where she
received assistance caring for herself from her family.  She was depressed, in
pain, having memory problems and unable to work or provide more than basic care
for herself.  The trial judge found that although she appeared to be improving
by the time of trial, her prospects for further improvement were uncertain.

[312]     The
plaintiff in E.(A) v. J.(D.W.) was a 30 year old woman who was married,
had three children and had a Master’s degree in theology and counselling. 
Before the accident she taught music, composed and produced music and worked as
a counsellor.  She was she was a motivated, well organized individual who home
schooled her children, organized concerts and was active in her church. 
Following the accident, the plaintiff’s life was devastated.  She suffered from
a complicated combination of psychiatric disorders that rendered her unable to
work and unable to care for herself or her children.  She was living in an
assisted care facility and had become separated from her husband.  Although the
trial judge found that some of her psychiatric problems were not caused by the
accident, he held that the accident had caused the plaintiff’s PTSD,
depression, various soft tissue injuries, a pain disorder, tinnitus, and a
visual vestibular mismatch which resulted in dizziness.

[313]     In Felix,
the plaintiff was a 50 year old woman who was self-employed as a verbatim
reporter, recording court and other proceedings.  Prior to the accident, she
was physically active, participating in soccer, ball hockey and baseball and
raised her twin daughters largely on her own.  The ongoing injuries following
the accident included tears in the ligaments in her shoulder, wrist and ankle,
persistent pain in her neck and back and recurring headaches.  In addition, she
was suffering from PTSD and depression that had greatly affected her family
life and social activities.  Her ability to participate in sporting activities
had markedly declined, she was restricted in what housework she could do and
required a great deal of assistance and was unable to continue in her work as a
verbatim reporter.  I note that the defendant did not appear and no submissions
were made to counter those of Ms. Felix.

[314]     The
defendants submit that the cases relied upon by the plaintiff are of no
assistance because they involved injuries that bear no relation to those
suffered by the plaintiff.  The defendants submit that a non-pecuniary damages award
in the range of $140,000 to $150,000 is more appropriate, relying on the
following decisions:

a)   
Sanders v. Janze 2009 BCSC 1059 ($150,000);

b)   
Schenker v. Scott 2013 BCSC 599 ($150,000); and

c)     X. v.
Y. 2011 BCSC 944 ($140,000).

[315]     In Sanders,
the plaintiff was a woman in her late-forties.  Although she had been in a
number of accidents previously, prior to the accident in question she worked at
positions that required a good deal of lifting, bending, and other physical
activity.  She did all of the household work for her three children and her
roommate, participated in household renovations and enjoyed walking with the
family dogs and camping.  She had not worked at all since the accident and was
greatly restricted in what household tasks she could perform.  She experienced
pain daily in her low back, neck, shoulders, arms and hands, had a dramatically
restricted range of movement in her spine and had trouble walking, climbing
stairs and sitting for long periods.  It was likely that she would remain permanently
partially disabled and continue to experience daily pain and have mobility and
strength restrictions.

[316]     The
plaintiff in Sanders established that the injuries to her neck and lower
back were caused by the accident as it was more probable than not that she
would not have suffered the injuries but for the accident caused by the
negligence of the defendant.  However, the trial judge found there was a
measurable risk that the plaintiff would have suffered serious problems,
including surgery, with her neck and low back regardless of the accident and therefore
reduced the damage award by 40 per cent.

[317]     The
plaintiff in Schenker was a 23 year old woman who was active in outdoor
activities, such as snowboarding, mountain biking, slack lining and rock
climbing.  At the time of the accident she had been working as a tree planter. 
She suffered spinal fractures in four different areas of her spine as a result
of the accident.  Her pain levels were initially severe and, although her pain
had lessened over time, she continued to experience pain when pursuing her
daily or recreational activities.  Her employment opportunities and physical
activities would likely be permanently limited by the injuries she suffered.

[318]     In X.
v. Y., the plaintiff, a police officer, was responding to an emergency call
when the motorcycle he was driving collided with a truck.  He suffered a burst
fracture of his T12 vertebrae and underwent fusion surgery.  Prior to the
accident the plaintiff was healthy and physically fit 43 year old.  As a result
of his injuries, he was permanently disabled and could no longer work as a
front-line police officer or maintain his pre-accident level of physical
activity.  He was also at risk of injury and re-injury to his spine and there
was a possibility that he would require further surgery.

[319]     I have
considered the ordeal that the plaintiff has gone through since the Accident. 
She continues to suffer from chronic pain, scarring, headaches, dizziness,
hearing and swallowing difficulties.  The medical experts are of the opinion
that her recovery has plateaued and have given her at best a guarded prognosis
for further recovery with the potential deterioration of her condition and she
will likely have functional and psychological limitations for the rest of her
life.  Her social relationships, physical and mental abilities have all been
impaired.

[320]     I note
that the plaintiff did suffer from migraine headaches prior to the Accident but
they were nowhere near as frequent as they have become since the Accident.

[321]     Having
considered the principles set out in Stapley and the cases relied upon
by counsel, I find that an award of $150,000 for non-pecuniary damages is
appropriate.

(ii)      Loss of Opportunity – Past Loss of Income

[322]     Prior to
the Accident, the plaintiff loved her job as an elementary school teacher.  She
was excited and passionate about it.  She was instrumental in the
implementation of new initiatives for better classroom learning.

[323]     While
Simon Fraser University’s Graduate Diploma Program required a minimum 2.5 grade
point average as a prerequisite, those with a GPA under 2.5 (the plaintiff’s
was 2.41) who provide evidence of their potential to succeed in an academic
graduate program could be excepted from the minimum GPA requirement. 
Alternatively, applicants with a GPA less than 2.5 can raise their GPA to the
minimum required by taking additional undergraduate courses.

[324]     I find
that, but for the Accident, there was a real and substantial possibility that
the plaintiff would have enrolled in the Graduate Diploma Program in the fall
of 2008.  She had a demonstrated history of improving herself and her skills
within the teaching profession.  There is no question in my mind that she would
have been accepted into the program under the “Exceptional Circumstances”
category or, alternatively, would have taken additional courses to raise her
GPA to at least 2.5.  I find that she would likely have successfully completed
the program by no later than September 1, 2010.  At that time she would have
qualified to be paid as a Category 5 Plus teacher, with a corresponding
increase in her salary.

[325]     The
Accident prevented her from pursuing the Graduate Diploma Program and she lost
that opportunity.  She is unable to tolerate the course work, which includes
having to sit at a computer for periods of time.  As well, working only 20% of
the time means that she is unable to complete the practical applications
required by the program.

[326]     I find
that the plaintiff reasonably mitigated her past wage loss by entering the
graduated return to work program as and when she did.  All of the medical
evidence is consistent that she was unable to return to work earlier and more
frequently than she did.

[327]     The
Chilliwack School District is to be commended for accommodating her as it did
and continues to do.

[328]     Using the
calculations provided in plaintiff’s counsels’ written submissions, which I
accept as reasonable, I find that the plaintiff’s gross past loss of income is
$341,082.  Applying at rate of 20% to account for income tax and EI premiums, I
conclude that the plaintiff’s net past loss of income is $269,455 and award
that amount to her.

(iii)     Loss of Opportunity – Future Loss of Income

[329]     An award for loss of earning capacity is made in
recognition that a plaintiff’s capacity to earn income has been reduced.  If a
plaintiff’s permanent injury limits her capacity to earn income, she is
entitled to compensation: Rosvold v. Dunlop, 2001 BCCA 1, at para. 8.  The
plaintiff must demonstrate both impairment to her earning capacity and a real
and substantial possibility that the impairment will result in a pecuniary
loss.  The standard of proof is simple probability, not the balance of
probabilities: Drodge v. Kozak, 2011 BCSC 1316 at paras. 147-148. 

[330]     Once that threshold is met, the plaintiff may prove
the amount of loss by one of two calculation approaches, as set out by the
British Columbia Court of Appeal in Perren v. Lalari, 2010 BCCA 140:

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

[Emphasis in
original]

[331]     There was a
substantial amount of evidence in this case from which the Court can quantify
what the plaintiff’s future pecuniary loss is likely to be.  In such
circumstances, the appropriate approach is the “earnings approach”.

[332]     Although I
have found that the plaintiff has been denied the opportunity to obtain her
Category 5 Plus designation as a direct result of the Accident, I am not
persuaded there is a real and substantial possibility that, but for the
Accident, the plaintiff would have successfully pursued and obtained her
Master’s degree.  That program is very competitive, there are only a few
positions available on a yearly basis and only the strongest applicants are
accepted.  She would have had to have upgraded her qualifications, been
accepted into and successfully completed that program at a time when she would
have been at least 46 years of age.  The Master’s program would have to have
been completed within six years.  The difference in pay entitlement between
Category 5 Plus and Category 6 is much less than between Categories 5 and 5
Plus.  Although a Master’s degree provides for opportunity to advance to a
vice-principal or principal position, it is pure speculation that the plaintiff
would have obtained her Master’s degree and been promoted to one of these
positions prior to retirement, particular in light of the fact that her passion
was teaching and working in the classroom.  She provided no indication that she
was at all interested in administrative work.  On the contrary, such
advancement would have been contrary to her career goal of being a teacher.

[333]     I find
that, prior to the Accident the plaintiff would likely have retired at the age
of 63, the earliest point at which she could have done so without penalty to
her pension.  I find that there was a real and substantial possibility that,
thereafter, she would have continued to work as a teacher on call for at least
another three years.  The plaintiff was passionate about and dedicated to her
employment as an elementary school teacher.  I am unable to find that there would
have been any significant risk of her choosing to leave that labour market or
work part-time prior to the Accident before her planned retirement.  Similarly,
I find that there was no significant risk that she would have been forced out
of that labour market into unemployment or into part-time work prior to her
planned retirement at age 63.

[334]     I find
that the plaintiff has demonstrated she is currently unable to work more than
20% of full time due to her Accident-related injuries.  She still struggles
with working one full day.  By noon, she has a headache.  By the afternoon she
is fatigued.  She cannot move around the classroom and interact with her
students.  The outside of classroom marking of the students’ assignments and
preparing report cards arising from her working one day per week (approximately
12 hours per week) is the most she can tolerate.

[335]     Ms.
Townsend’s opinion is that she has the “potential” in the future to work up to
15 to 20 hours per week with no more than three to four hours per day total
(inside and outside of the classroom).  Ms. Townsend assumed that the plaintiff
began a graduated return to work program in February 2010, two mornings per
week, two hours per day.  In fact, the plaintiff attended class only one hour
per day.  Moreover, it is clear to me that, in arriving at her functional
capacity assessment of the plaintiff, Ms. Townsend did not consider the
plaintiff’s ongoing psychological challenges, including her anxiety when in the
classroom and her lack of confidence in her teaching abilities.

[336]     While I
accept the plaintiff’s evidence that working 20% of full time is her current maximum
functional capacity, she has many more work years left before retirement.  It
is doubtful that she will be limited to 20% for the rest of her working life.  In
my view, there is a real and substantial possibility that she will regain at
least some, if not most, of her pre-Accident teaching confidence and be able to
increase her work hours to two days per week within the next five years.

[337]     The
evidence before me is that, while no position is currently available within the
Chilliwack School District that would accommodate the plaintiff working two
days per week, there is a real and substantial possibility that such a position
will arise in the future.  A wide variety of opportunities frequently evolve
within the school district and it is committed to doing what it can to
accommodate the plaintiff as her working abilities improve.

[338]     I find
that the plaintiff is likely to retire at the same age as she had planned to
retire prior to the Accident, namely at age 63.  The evidence does not convince
me that her part-time work life will be truncated.  I also find that, as a
result of her Accident-related injuries, there is no real and substantial
possibility that the plaintiff will be capable of working as a teacher on call,
distance education teacher or private tutor after retirement.

[339]     I agree
generally with Mr. Peever’s opinion that the applicable labour market contingency
in this case is “risk only”, which accounts for the possibility that the
plaintiff may be forced out of the work force or into part time work due to
unemployment, underemployment or illness.  The plaintiff was passionate about
teaching.  It is very unlikely that she would have chosen to become unemployed
or underemployed.  However, no one can predict the future with certainty. 
There is always a possibility that circumstances might arise such that the
plaintiff choses to leave her employment.  A modest contingency of 10% is
appropriate in this case.

[340]     In summary,
the plaintiff’s loss of future earnings should be calculated on the basis that,
but for the Accident she would have become a Category 5 Plus teacher by
September 1, 2010.  As a result of the Accident, she will remain a Category 5
teacher, working 20% of full time until age 53 and then 40% of full time until
retirement at age 63.

[341]     As best as
I have been able to determine from the tables provided by Mr. Gosling, the
plaintiff’s after-tax without accident earnings would have been $989,573 plus
net pension benefits of approximately $135,000, for a total of $1,124,573.  Her
with accident earnings will be $222,753 plus net pension benefits of $46,788,
for a total of $269,541.  I have estimated the net pension benefits by pro
rating the “retire at ages 62 and 65” amounts shown in Mr. Goslings Table 5 to
age 63.  I have also pro-rated the percentage of full-time work amounts from
between 35% and 50% to determine net pension benefits at 40% of full time work
from ages 53 to 63.

[342]     Given my
finding that the plaintiff will likely retire at age 63, there will be no loss
of benefits in respect of medical, extended health and dental coverage.

[343]     Using this
approach, the plaintiff’s loss of future earnings to retirement at age 63
totals $855,032.

[344]     In
addition, I find that but for the Accident there is a real and substantial
possibility that the plaintiff would have earned additional income as a teacher
on call after her retirement.  In my view, it is reasonable to predict that she
would have worked 60 days annually, including more than three consecutive days,
for three additional years.  The current Collective Agreement provides that she
would have earned approximately $320 per day, or $19,200 annually.  The
applicable multiplier is $1,806 ($14,967-$13,161).  The result is $34,675.

[345]     The total
of the plaintiff’s loss of future earnings to retirement ($855,032) and her
loss of future earnings after retirement ($34,675) is $899,707.  Applying a 10%
contingency reduces this amount to $800,736.  I assess the plaintiff’s loss of
future earnings at $800,000.

(iv)     Cost of Future Care

[346]     The task
of the court is to determine whether there is a real and substantial
possibility that the plaintiff will require future care and, if so, to do the
best it can to predict the present valued cost of providing that care: O’Connell
(Litigation Guardian of) v. Yung, 2012 BCCA 57 at para. 56; Athey v.
Leonati [1996] 3 S.C.R.458 at para. 27.

[347]     I am
satisfied on the evidence of Dr. van Rijn, Ms. Hodson and Mr. Emnacen that
there is a real and substantial possibility that the plaintiff will require
one-time expenditures totalling $2,946 for kinesiology sessions ($360),
psychological support (10 sessions @$175) and an occupational therapy ergonomic
assessment ($836).

[348]     I am also
satisfied that the plaintiff will require various devices to assist her in activities
of daily life that will have to be replaced approximately every five years. 
These include a low-level stool ($20), bathroom aids ($217), kitchen aids
($320) and a pill crusher for swallowing pills ($19).  The total replacement
cost every five years is $576.  According to the tables provided by Mr. Peever,
the present value of these costs is $2,572.

[349]     I am also satisfied
that the plaintiff will require ongoing housekeeping assistance, but not twice
per week and not for the remainder of her life.  Rather, housekeeping
assistance once per week for two hours is reasonable.  Moreover, I find that
there is a reasonable and substantial possibility that by age 80 the plaintiff
will have altered her living arrangements (for example living in a facility
that provides such services).  The parties agreed that the present cost of
housekeeping services is $30 per hour.  Two hours per week equates to $3,120 per
year.  According to the present value tables provided by Mr. Peever, the
appropriate multiplier is $18,712.  Accordingly, the present value of the
housekeeping services the plaintiff will likely require is $58,381.

[350]     Finally, I
am satisfied that the plaintiff is entitled to receive the future costs of
maintaining her yard.  Her evidence is that it will cost $80 to $120 per month
to have her lawn mown, depending upon the season.  I find that is a cost of $80
per month for six months, or $480 per year is reasonable.  I find that it is
reasonable to predict that, by age 70, the plaintiff will either have moved
from her home into accommodation that does not require that she pay for yard
maintenance or she will be in a relationship where her partner will be able to
perform yard maintenance.  The appropriate multiplier is according to Mr.
Peever’s tables is $15,772.  Accordingly, the present value of future yard
maintenance costs is $7,570.

[351]    
In summary, the plaintiff is entitled to recover $71,469 in respect of
the cost of future care as follows:

(v)      Special Damages

[352]     The
parties have agreed the quantum of the plaintiff’s special damages at $11,500.

(vi)     Past Rehabilitation Expenses

[353]     Counsel
for the defendants confirmed during the trial that ICBC will not require any deduction
be made for past rehabilitation expenses or other benefits paid by ICBC to
date.

CONCLUSION

[354]     The
plaintiff is entitled to judgment against the defendants, jointly and
severally, in the following amounts:

[355]     All
amounts paid by ICBC to date in respect of temporary disability benefits will
be deducted from the above award.

[356]     I direct
that the net proceeds received by the plaintiff from the settlement of Accident
No. 2 attributable to the indivisible injuries she sustained in that accident
be deducted from the above award.  If the parties cannot agree on the portion
of the settlement attributable to the plaintiff’s indivisible injuries, they
are at liberty to make written submissions to me.

“Weatherill J.”