IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131125

Docket: S112356

Registry:
Vancouver

Between:

Sharon Celeste
Brown

Plaintiff

And

Gladys Alma Bevan

Defendant

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

Reasons for Judgment

I.                
Introduction

[1]            
This is a personal injury action arising out of a motor vehicle
collision that occurred on May 4, 2009 at the intersection of Davie Street and
Pacific Way at approximately 8:45 a.m. (“collision”). Both liability and
damages are in issue. If liability is proven, the plaintiff claims general
damages, special damages, future care costs and loss of future earning capacity.

[2]            
The plaintiff’s position is that the defendant is 100% responsible for
the collision and her damages. The defendant’s position is that the plaintiff is
partially responsible.

[3]            
The plaintiff claims the collision caused the following injuries:

a.       chronic and
unrelenting headaches;

b.       chronic
neck pain;

c.       chronic
upper back and shoulder pain;

d.       injury
to her right foot resulting in an subsequent injury to her left Achilles
tendon;

e.       mild
traumatic brain injury resulting in ongoing post concussive syndrome type issues;

f.        injury to
her knees; and

g.       cuts and
bruising to various parts of her body.

II.              
The Collision

[4]            
At approximately 8:45 a.m., the plaintiff left her home on Gilford
Street in Vancouver and was driving to work. The traffic was typical for
morning rush hour – busy but not bumper to bumper. She was travelling eastbound
on Pacific Blvd in the right lane. To her left and slightly in front was an SUV
that she had been keeping pace with for a number of blocks. She cannot recall
if vehicles were in front of her in her lane.

[5]            
She was not preoccupied and was paying attention to her driving.

[6]            
As she approached Davie Street, she saw a green light. She saw the
pedestrian crossing signal on Davie showed “walk” indicating to her that the
traffic light would be green for some time to come. She estimates her speed was
50km/h.

[7]            
Nearing Davie Street, the SUV was still ahead of her. As she entered the
intersection, a white Smart Car appeared immediately in front of her. She only had
time to register it was a Smart Car and that its passenger side was right in
front of her before her car hit the Smart Car. She described the impact as an
“explosion”.

[8]            
The plaintiff had no time to brake or take evasive action. As she
stated, it was as if the Smart Car dropped out of the sky right in front of her.

[9]            
Although no vehicle photographs were tendered in evidence, the impact appears
to have been significant. Both vehicles were total losses.

[10]        
The plaintiff called Shannon Mackenrot, a Canada Post driver, as an eye
witness to the collision.

[11]        
Ms. Mackenrot was parked on the South East corner of the intersection of
Davie Street and Pacific Blvd facing north. She was on a break sitting in her
van. She had an unobstructed view of the intersection. She saw the events preceding
the collision, the collision itself and its aftermath.

[12]        
Her evidence, which I accept, was that the defendant’s vehicle, a Smart
Car, was travelling westbound on Pacific Blvd in the left turn lane and had
stopped in the intersection waiting for traffic to clear. She saw the
plaintiff’s vehicle (an Acura) approaching the intersection along Pacific Blvd from
the east. The Acura was in the lane nearest the parking lane. She next saw the
defendant starting to make a left hand turn onto Davie St, and she saw the
defendant “gun it”. She knew a collision was imminent. She recalls wondering to
herself why the Smart Car was turning. The front of the Acura struck the Smart
Car’s passenger side.

[13]        
She was unable to be precise about where the Acura was relative to the
intersection when the defendant turned left. She was also unsure exactly where
in the intersection the impact occurred. She did not notice the plaintiff
attempting to swerve or brake. It all happened suddenly, and the plaintiff had
no time to brake.

[14]        
The defendant testified. She was age 68 when the collision occurred. She
worked full-time as a bookkeeper/accountant.

[15]        
The morning of the collision was the first day of her holidays. Her 2008
Smart Car’s left front signal light was not working, so she drove to the
Mercedes dealership on Broadway in Vancouver to see about getting it repaired. Being
at the dealership is her last memory until she was lying on the ambulance
gurney at the Vancouver General Hospital. Specifically, she cannot recall
driving from the Mercedes dealership to the collision scene or the collision
itself. Her best guess is that she was going to the HSBC bank on the southwest
corner of Davie and Pacific.

[16]        
She suffered what appeared to be significant injuries in the accident,
including a crushed left tibial plateau and stomach and back injuries. She was
off work for four months, and initially, she only returned to work part-time
before resuming full-time status. She retired two years later to write a book.

III.            
Liability

[17]        
I accept the plaintiff and Ms. MacKenrot’s evidence regarding the
collision. Simply put, the defendant did not see the plaintiff’s vehicle about
to enter the intersection and made her left turn immediately in front of the
plaintiff. The plaintiff had no chance to avoid the collision. Once the
defendant made the decision to turn, the collision was inevitable.

[18]        
The plaintiff was not partially responsible as the defendant suggests. The
defendant negligently attempted a left hand turn before it was safe to do so. The
defendant failed to keep a proper lookout and failed to yield the right of way
to the plaintiff. The defendant is 100% responsible for the collision.

IV.           
Damages

A.             
The Plaintiff’s Case

1.              
Background

[19]        
The plaintiff is age 63 and resides with her 77 year old common law partner,
Ms. Kratzer, in a condominium they own jointly.

[20]        
She worked in various hospital settings over her career. She usually
worked 50 – 60 hours a week, and she had not missed more than three days of
work for health related reasons in the past 10 years.

[21]        
In 2001, she was hired as the Hospital Administrator of the Canada West
Veterinary Specialists & Critical Care Hospital (“Canada West”), a large veterinary
referral hospital. She was responsible for managing the entire facility. She
was working in that capacity at the time of the collision.

[22]        
For reasons unrelated to the collision or her injuries, she was
terminated from that position in January 2012.

[23]        
In May 2012, she secured employment as the long term care administrator
at the Arbutus Long Term Care Centre in Vancouver (“Arbutus Care”). Her new job
is less physically demanding than was her job at Canada West.

[24]        
Her pre-collision recreational pursuits were walking, golfing and
travelling. She was independent in all respects.

[25]        
When the collision occurred, the plaintiff was age 59. Her long term
plan was to continue working well into the future. She had no plans to retire
as she has no pension. Although her partner has a pension from her prior
teaching career, it ends on Ms. Kratzer’s death. The plaintiff still plans to
work as long as she can, but she believes her constant pain will shorten her work
life expectancy.

2.              
The Plaintiff’s injuries

[26]        
The plaintiff alleges the collision caused a mild traumatic brain injury;
injuries to her neck, upper back, shoulders, knees, and right heel; and cuts,
bruises and abrasions on her arms, chest, ribs, abdomen. She alleges she has
suffered indirect injuries and symptoms, including a left Achilles tendon
injury; headaches and post-concussion syndrome symptoms of reduced
concentration and memory; sleeplessness and emotional instability.

3.              
Summary of Evidence

[27]        
The following is a summary of the evidence that I have accepted and has
formed the basis of my decision on damages.

[28]        
Immediately following the collision, the plaintiff was dazed and
disoriented. She does not believe she was unconscious. She tried to get out of
her car, but she could not move her neck in either direction. She felt
discomfort in her right foot and knees. Her chest, ribs, and left side of her
tongue were sore. She had a goose egg on the left side of her head. She was
bloodied.

[29]        
The ambulance arrived, and she was taken to St. Paul’s Hospital for
assessment. She was discharged later that day in Ms. Kratzer’s care who took
her home to rest. Bruising started to develop on her breast and left side of
her neck. She was in extreme pain. She had to sleep in an upright position,
propped up by pillows.

[30]        
Her symptoms increased the next day. Her entire body was stiff,
particularly her neck, shoulders and back. She had a bad headache.

[31]        
Over time, her symptoms got progressively worse. She would often have
blinding headaches. She had to continue sleeping at a 90 degree angle for
approximately one year because it hurt to lie down. She woke up multiple times
at night and consequently did not get a restful sleep.

[32]        
While some of her symptoms progressively settled down, the symptoms in
her neck, shoulders and back did not. In the following years, her family
doctor, Dr. Brown ordered various imaging studies to understand why she was not
recovering. These studies generally proved unhelpful.

[33]        
Still suffering from the collision’s effects and contrary to Dr. Brown’s
advice that she take three to four months off work, the plaintiff returned to
Canada West one week after the accident. She was in charge of a busy facility
and felt obligated to return to work as soon as possible. She expected her
symptoms would slowly resolve. But she continued to have physical and cognitive
difficulties.

[34]        
She found work exhausting. Her right heel and knees made it difficult to
walk. She could not sit for long periods of time without increased symptoms. Reading
was problematic. She had difficulties trying to concentrate and absorb details.
She could not remember things she read or heard and found herself having to
make detailed notes. While her initial cognitive difficulties improved over
time, she continues to struggle with concentration and memory. She finds
herself being short tempered, irritable and impatient. She is not as positive a
person as she was before.

[35]        
Before the collision, she was an early riser and typically worked 50 –
60 hours per week. She would come home from work with energy to spare and go
for walks or social outings with Ms. Kratzer. Now, to get through the work day,
she is in bed earlier and gets up later. After work, she has no energy left for
extra activities.

[36]        
She now has trouble with the heavier homemaking duties and home
maintenance. Ms. Kratzer has taken over many of the duties the plaintiff once did.

[37]        
In 2010, a housecleaner was hired to perform the heavier household
cleaning duties. The cleaner continues to come bi-weekly for two hours. In the
interim, the plaintiff does what she can to keep things tidy.

[38]        
In December 2011, the plaintiff and Ms. Kratzer decided to list their
three level, two bedroom, two bathroom townhome on Gilford Street and move to a
one level home. The property was listed in January 2012 and sold in May 2012
for $750,000. The couple purchased a one level, one bedroom, and one bathroom
condominium on Homer Street for $550,000 and moved in June 2012. While the
Court was not provided particulars, the plaintiff agreed the move reduced the couple’s
mortgage expenses.

[39]        
Despite doing her best to follow her treating practitioners’ advice and
religiously doing her daily exercises, she has not recovered. Her current
physical issues include a headache she describes as constant; stiffness in her
neck and shoulders, her knees; and a left heel injury that she believes
developed because of having to compensate for her right foot injury.

[40]        
Because of overcompensating for her injured right foot by continually
loading the left foot, she developed a left sided Achilles Tendonopathy that may
require surgery.

[41]        
She tries to carry on with her work and life and manages her pain with
the maximum recommended dosage Extra Strength Tylenol.

[42]        
The left heel injury became a focus at trial. The plaintiff testified
that her right foot was injured in the collision. However, it was minor
compared to her other injuries. The right foot was not the focus of her visits
to her doctor or physiotherapist. Nevertheless, it continued to be an issue for
about one year after the collision. During that time, she tended to shift her
weight to her left leg and, although she tried not to show it, she limped. At
some point, her left foot also began to hurt. She recalls an overlap in time
where, as the right foot got better, the left foot got worse. Because of her
left heel and knee issues, she avoids stairs whenever she can.

[43]        
On June 1, 2013, the plaintiff had second car accident. The plaintiff
and Ms. Kratzer had just finished having their car washed and were stopped
waiting for traffic to clear so they could enter the street from the car wash.
While stopped, the vehicle behind them rear-ended them. This accident exacerbated
her neck, upper back and headache symptoms for approximately one month.

4.              
Evidence at trial

a)             
Dr. Terri Schiller

[44]        
Dr. Terri Schiller is a doctor of veterinary medicine. In fall 2001, she
met the plaintiff during the interview process at Canada West.

[45]        
Before the collision, Dr. Schiller saw the plaintiff on nearly a daily
basis. She saw nothing indicating the plaintiff had any physical or cognitive
limitations, complaints or issues. The plaintiff had an excellent memory for
details and was active, strong, energetic, organized, and intelligent.

[46]        
After the collision, Dr. Schiller noticed many intellectual and physical
changes with the plaintiff. Intellectually, her memory was poor. She could not
recall discussions they had. She became reliant on writing things down and took
copious notes. Physically, she noted changes to the plaintiff’s posture and how
she carried herself. Before the collision, the plaintiff was a brisk walker. After
the collision, she was much slower and looked to be in constant pain.

[47]        
Before testifying, Dr. Schiller had only seen the plaintiff twice since
2011. On those two occasions, she noted improvement in how the plaintiff
carried herself; she was not limping as much, but she still walked slowly. She
noted the plaintiff seemed to have trouble looking to the left and had to move
her whole body to do so. She thought the plaintiff still had ongoing physical
issues.

[48]        
Dr. Schiller was candid and credible, and I accept her evidence as
accurate.

b)             
Gaylene Powell

[49]        
Gaylene Powell is a teacher who has been the plaintiff’s friend for seven
or eight years.

[50]        
Approximately six years ago, Ms. Powell purchased an older home that
required major renovations. When the renovation budget got tight, the plaintiff
volunteered to help her with the renovation, including framing windows and doors.
This physical work involved using heavy power tools overhead. She said the
plaintiff was very strong with superior upper body strength. She had no
difficulty performing this work before the collision. Ms. Powell expected that
had the collision not happened, the plaintiff would have continued helping with
the renovation.

[51]        
A few weeks after the collision, Ms. Powell and a friend went to visit
the plaintiff at her home. The plaintiff looked to be in bad shape. She was
propped up on pillows looking pale and miserable. The plaintiff was stoic and trying
to carry on.

[52]        
In the years following, Ms. Powell did not often see the plaintiff. When
they did meet, Ms. Powell described the plaintiff as being very stiff in her
body. Her entire manner was different. She has difficulty moving and turning.

[53]        
Ms. Powell gave an example of the difference. When the plaintiff moved
to her new one level residence on Homer Street, she was not able to hang a
large picture and a large chandelier. Before the collision, she would have easily
completed both tasks. Ms. Powell and a friend did those jobs for her while the
plaintiff watched.

[54]        
Ms. Powell was credible, and I accept her evidence.

c)             
Lynn Chapman

[55]        
Ms. Chapman has been a physiotherapist for almost 40 years and is very
experienced.

[56]        
She started treating the plaintiff soon after the collision and has been
treating her fairly regularly ever since. The physiotherapy treatments’ prime
focus is the plaintiff’s neck and upper torso region, including her upper back.
The neck and upper back complaints were consistent since the collision. The
plaintiff would sometimes mention her feet, but they were not the focus of
treatment.

[57]        
Ms. Chapman used various techniques including manual therapy,
stretching, manipulations and needles. Over the first few months, the plaintiff
did not make the progress that was hoped. Ms. Chapman questioned whether the
doctors missed something potentially dangerous. In her experience, an accident victim
can usually lie flat. The plaintiff could not. She recommended a bone and CT
scan. The plaintiff’s general practitioner, Dr. Brown, followed those recommendations,
but the tests did not disclose anything sinister.

[58]        
Ms. Chapman treated the plaintiff three times after the June 1, 2013 accident.
That accident appeared to have aggravated her existing neck and upper back
symptoms and caused new pain in her right shoulder blade area.

[59]        
Ms. Chapman continued treating the plaintiff through June 2013. She
believes that her symptoms have plateaued. The treatments seem to help the
plaintiff’s mobility and reduce the spasms restricting her movements. She
believes ongoing treatments will allow the plaintiff to maintain her current
level of function.

[60]        
Physiotherapy costs $60 for 30 minutes. The plaintiff has been paying the
$30 user fee. Because treatments are only 30 minutes, Ms. Chapman could not
discuss or treat every area of complaint. In her experience, patients with
multiple symptomatic areas commonly focus and ask for treatment on the main
complaints and not the minor issues.

[61]        
Ms. Chapman is aware of Dr. Adrian’s recommendation for a personal
trainer. But she is concerned with that recommendation because Ms. Brown cannot
lie flat without her neck/back symptoms and headaches flaring. Until she can,
Ms. Chapman does not belief a personal trainer is appropriate.

[62]        
Ms. Chapman was credible and helpful, and I accept her evidence.

d)             
Theresa Kratzer

[63]        
Ms. Kratzer has been the plaintiff’s co-habitation partner for 28 years.
She is a retired a school teacher and principal. Some of her evidence was
hearsay and, to the extent it was, I have not taken it into account.

[64]        
She described the pre-accident plaintiff as robust, capable, happy and
energetic. She was a take charge person, had a good approach to life and an
easy person to live with. She described the various activities the couple used
to do together – e.g., walks, travel and socializing. She said Ms. Brown was an
avid golfer.

[65]        
After the collision, she described a significant change in the plaintiff.
She is now fatigued after work and does not like to socialize during the week. She
still sleeps on a 45 degree angle propped up by pillows, and she is a restless
sleeper who wakes up multiple times per night.

[66]        
She said the plaintiff has not recovered from her injuries and remains
in pain. She noted numerous examples: difficulty doing heavy housework;
climbing or descending stairs; and stooping. Consequently, friends persuaded
the couple to get a housecleaner. The house cleaner comes every Thursday for a
few hours and charges $60.

[67]        
Of the two of them, the plaintiff was the handy one. She tiled the entry
and fire exit. She installed baseboards and light fixtures, she handled routine
repairs. She also helped on renovations projects for friends. In their current
home, the plaintiff was unable to hang large pictures or a chandelier.

[68]        
The couple was passionate about travelling. The plaintiff took charge of
organizing the trips. She always looked after the luggage. The last trip they went
on included a visit to the south of France the year before the collision. The
topography was steep, and the plaintiff was able to manage the steep climbs
without difficulty.

[69]        
In terms of the future, the plaintiff had no intentions of retiring. She
intended to continue working as long as she could. She enjoyed working.

[70]        
The couple purchased their Gilford Street town home a number of years
before the accident. It had three levels with a number of stairs inside and out.
It was unsuitable for a disable person. The town home complex had a sense of
community, and the couple knew the other residents quite well. They enjoyed
living there. During the weekdays, the plaintiff worked long hours, and Ms.
Kratzer enjoyed the other residents’ companionship. She said it was a joy to be
there.

[71]        
The main consideration for selling their townhome and moving to a one
level apartment on Homer Street was the stairs. Ms. Kratzer could see that the
stairs in their townhome were too difficult for the plaintiff to manage.

[72]        
She agreed that the plaintiff’s symptoms have improved, but the
improvement has leveled off. Although Ms. Kratzer tended to embellish some of
the plaintiff’s difficulties, I generally accept her evidence that the
plaintiff is not the same as she was before the collision and that the
plaintiff’s injuries have profoundly impacted every aspect of her life.

e)             
Elizabeth Monrad

[73]        
Ms. Monrad is the provincial director for the plaintiff’s current
employer, Revera. Revera runs Arbutus Care where the plaintiff is the executive
director. Mr. Monrad is the plaintiff’s immediate superior.

[74]        
Ms. Monrad testified that since being there, the plaintiff’s performance
has been excellent; she brings maturity and a wealth of experience to her role
as executive director. Her job is purely administrative with no real physical
aspect to it. In her position as executive director, the plaintiff can delegate
work to her five managers.

[75]        
Ms. Monrad infrequently sees the plaintiff and usually only when she has
weekly two hour meetings with her. She notices that the plaintiff’s stiff neck
makes it difficult for her to turn. At meetings or video conferences, the
plaintiff likes to position herself so she is looking straight ahead otherwise
it is uncomfortable for her. She believes the plaintiff had a stiff neck from
the time she started with Rivera, but she did not make the connection until she
heard about the accident some time later. The accident was not discussed during
the interview process. Other than the neck restrictions, Ms. Monrad has not
noticed any other limitation.

[76]        
She was asked about the trip home from a week long Seattle conference
earlier this year. Ms. Monrad had travelled there by train and had planned on
returning to Vancouver by train. The plaintiff offered to drive her home
because the train would have taken longer. During the drive, Ms. Monrad did not
observe the plaintiff having any driving difficulties.

[77]        
Ms. Monrad does not socialize with the plaintiff. She described the
plaintiff as a private person who neither complains nor discusses her private
life. The plaintiff is high energy, very capable, enjoys her job and expects
her employment with Rivera to continue. The plaintiff told her she will work as
long as she can.

[78]        
Ms. Monrad’s observations of the plaintiff are limited to seeing her sporadically
during work settings. Although she was a straightforward and honest witness,
her evidence is helpful only to describe the plaintiff functioning at her very
best; the rest of the evidence painted a different picture.

f)               
Dr. Laurence Braun

[79]        
Dr. Braun was one of Canada West’s founding partners and was there in
2002 when the plaintiff started as the hospital administrator.

[80]        
Dr. Braun knew about the May 4, 2009 accident. The plaintiff returned to
work a week later. Dr. Braun knew the plaintiff was hurt. She was limping,
appeared to have back pain and was complaining of heel pain. The plaintiff was concerned
her heel problem was improperly diagnosed.

[81]        
The plaintiff appeared visibly hurt for about six months. Dr. Braun
would see the plaintiff often but usually only in the plaintiff’s office. The
plaintiff had no reason to be walking around the hospital.

[82]        
In February 2012, when the plaintiff left her employment due to
restructuring, Dr. Braun does not recall the plaintiff having any observable
physical issues.

[83]        
Dr. Braun was straightforward and honest. Nonetheless, similar to Ms. Monrad,
her observations were periodic and restricted to the office environment when
the plaintiff would be expected to function at her best.

g)             
Dr. Deborah Brown

[84]        
Dr. Brown has been the plaintiff’s general practitioner for
approximately 18 years. She prepared a medical/legal report and testified.

[85]        
She said the plaintiff was physically and mentally healthy until the May
4, 2009 accident. Over the previous 18 years, the plaintiff came into discuss
neck and upper back issues on very few occasions with the last occasion in
November 2008, some six months before the accident. On that occasion, she was
complaining that work stress and fatigue were causing neck and upper back pain.
She took Tylenol to control the pain, but it was still present. Dr. Brown
recommended Arthrotec as an alternative because Tylenol may cause stomach
issues. The pre-accident complaints were mild and not worth further
investigation. Her clinical records – e.g. annual physical examinations – disclosed
some previous neck and back complaints.

[86]        
Whatever Dr. Brown recorded in her pre-accident chart pertaining to neck,
upper back and headache complaints, was infrequent and not functionally
disabling. These notations would be typical considering the plaintiff’s age.

[87]        
The plaintiff first saw Dr. Brown four days post-accident. Because it
was a motor vehicle accident visit, Dr. Brown spent extra time assessing and
recording the complaints. The symptoms were mainly the upper torso area
including the neck, upper back and shoulders. Additionally, she complained of
headaches, a sore tongue on the left side, difficulty chewing and a goose egg
on the crown of her head toward the back. Dr. Brown examined that area but did
not find a goose egg.

[88]        
On the next visit, May 15, 2009, the symptoms had developed further. The
plaintiff told Dr. Brown of three episodes of feeling lightheaded while at work
and almost falling. She felt confused and incapable of organizing things
herself. She also told Dr. Brown about a problem she was having with her right
foot. The chart recorded a diagnosis of “peripheral neuroproxia”. Dr. Brown
felt the right foot issue was likely stemming from either a bruised or pinched
nerve elsewhere in her leg. The foot itself seemed fine. The right foot
complaints continued until August 2010 when the plaintiff reported improvement;
she could walk daily with no discomfort.

[89]        
The first entry in Dr. Brown’s chart regarding the left heel is October
12, 2011 when she noted the left heel pain was greater than the right. She
believed the plaintiff had developed Achilles tendonitis on both feet. The
clinical records were silent regarding the left heel over preceding year
because the focus was the plaintiff’s neck and upper back complaints. Additionally,
no assessment was done because, at the time, the left heel was probably not
significant enough to mention.

[90]        
Dr. Brown thought the plaintiff’s right foot issue was Achilles tendinopathy
that settled spontaneously. She therefore believes the left foot Achilles tendinopathy
will also settle eventually.

[91]        
 On cross-examination, Dr. Brown was asked about the November 14, 2008 pre-accident
visit for neck and upper back discomfort. The neck range of motion decrease was
sufficiently restricted, so Dr. Brown ordered an x-ray that disclosed cervical degeneration
that could account for the restricted range of motion. She also felt trauma
could accelerate the degeneration process.

[92]        
No firm diagnosis of the tingling sensation the plaintiff has in her
arms has been made, but Dr. Brown’s working diagnosis is that the nerves going
into the arms may be compromised at the neck area where the x-rays revealed
degeneration (C4/5 and C5/6). She thought the neck and upper back symptoms had
stabilized. While they would not improve, they were unlikely to get worse.

[93]        
By the July 16, 2009 visit, the right foot was getting worse. Additionally,
she was complaining of cognitive and emotional changes. Dr. Brown described the
plaintiff as a happy and upbeat person in the past, and the changes were
concerning.

[94]        
She was referred to her clinical records regarding the neck range of
motion before and after the collision. The plaintiff’s evidence was that
rotation to the left continues to be restricted, and turning left requires her
to turn her torso. Dr. Brown stated that it was turning to the right that was
the issue notwithstanding her records indicating otherwise. When referred to
the clinical records indicating left rotation was more restricted than right
rotation, she stated that the clinical records were erroneous. In my judgment,
Dr. Brown was mistaken in giving that evidence. She was trying to make the
clinical records fit her mistaken recollection regarding the plaintiff’s left versus
right neck rotation issues.

[95]        
She was asked about the June 1, 2013 accident’s effects on the
plaintiff’s injuries. She said this accident briefly aggravated the neck and
upper back issues. But she felt the plaintiff returned to the pre-accident base
line within a month or two.

[96]        
Dr. Brown did her best to help the court understand what the collision did
to the plaintiff and how different she is now. In doing so, she occasionally
acted as an advocate. But overall, her evidence was useful and generally
persuasive. I accept her opinions in most respects.

h)             
Dr. Mark Adrian

[97]        
Dr. Adrian was the plaintiff’s treating physiatrist. He assessed her on
two occasions, June 15, 2010 and October 25, 2011 per Dr. Brown’s referral. In
March 2012, he saw and assessed her for a third time to prepare a medical/legal
report on behalf of plaintiff’s counsel. That report was entered as an exhibit
without debate.

[98]        
Dr. Adrian also testified.

[99]        
He knew of the pre-accident neck and upper back complaints. He
understood these complaints were tension (or stress) related and episodic. He
believed these symptoms did not interfere with her work, domestic or
recreational activities.

[100]     Due to the
plaintiff’s periodic pre-collision headaches and neck symptoms, he opined her
neck was probably vulnerable to injury. The plaintiff was referred to him to
specifically investigate the neck, upper back and headache complaints. While the
plaintiff did discuss other areas of complaints during the third assessment in
2012 (for example, the left foot pain), he did not concentrate on them.

[101]     During the
2012 examination, he noted her gait was painful and she limped. The x-rays
disclosed pre-accident mild degeneration that was related to her age.

[102]     Numbness
in her arms was noted at all three visits. Nerve conduction studies and MRI
testing to determine the problems source were not helpful.

[103]     Regarding
the plaintiff’s ongoing physiotherapy, Dr. Adrian felt that, although it was
not a cure, it was and would help the plaintiff maintain her level of function.

[104]     He
recommended she would benefit from a personal trainer. The objective of a
personal trainer and an exercise program would be to optimize her general
conditioning, maintain other parts of her body the accident did not affect, and
prevent “collateral damage”. He did not expect a personal trainer to cure the
neck and upper back issues, but he thought it would improve her overall
function.

[105]    
He opined the plaintiff was suffering from chronic (and likely
permanent) neck and upper back pain that triggered her headaches. These
symptoms were accident related. Her symptoms have plateaued. They will not get
better or worse.

[106]    
He provided a prognosis at page 8 of his report:

In Ms. Brown’s situation, over two
years have elapsed since the accident. She experiences persistent mechanical
neck pain symptoms and neck-related headaches that affect her activity levels. The
prognosis for further recovery of the injuries suffered in the accident to her
neck over time is poor. It is unlikely the injuries suffered in the accident
will undergo progressive deterioration over time….

[107]     Although
the left foot was not really something he focussed on, he thought she had an Achilles
tendinopathy. It can be caused when a person does something different form
their normal activity, for example, consistently shifting weight onto one foot.
Any abnormal activity that shifts the load to one foot can trigger the problem.

[108]     On cross
examination, he agreed that if a long period of time existed between the right
foot resolving and the left foot symptoms starting, it would be less likely
that the left foot issues were related to compensating for the right foot.

[109]     I accept
Dr. Adrian’s opinions.

i)               
Dr. Gavin Chalmers

[110]     Dr.
Chalmers is a podiatric surgeon with impressive credentials. He was qualified
as an expert in podiatric medicine and podiatric surgery without objection.

[111]     On July 9,
2013 he examined the plaintiff at her counsel’s behest to prepare a report in
this litigation. The examination lasted around 90 minutes. Before the
examination, he had the benefit of reviewing a SPECT scan, Dr. Brown’s pre and
post-accident clinical records, the physiotherapist’s chart and various other
reports.

[112]     He opined the
plaintiff is suffering from Achilles Insertional Calcific Tendinosis (“AICT”)
in her left heel. AICT develops slowly and occurs where the Achilles tendon
inserts into the bone (“insertion site”). His examination revealed a boney prominence
at the back end of the left heel that coincides with the plaintiff’s pain. He
described the area being like a “tic-tac-toe” grid with the middle portion of
the grid representing the area where the Achilles tendon attaches to the bone; that
area is where the plaintiff complains of pain. Pressing on the insertion site
stimulates her pain.

[113]     He opined the
plaintiff’s altered gait pattern caused AICT. He said the plaintiff’s right
foot injury caused increased loading on the left foot. In other words, her
altered gait, caused by her right foot issue, caused the AICT in her left heel.

[114]     AICT
cannot be cured and is permanent. A surgical procedure can detach part of the
Achilles tendon, remove the boney growth and re-attach the Achilles tendon. This
procedure would improve the plaintiff’s symptoms, but it would not resolve them
completely.

[115]     On cross
examination, Dr. Chambers agreed a person can have both an AICT condition and
“Pump Bump”, but he had never seen it. And his examination of the plaintiff did
not reveal a Pump Bump injury.

[116]     Dr.
Chalmers opines that the plaintiff’s AICT is indirectly related to the
collision because of overcompensation due to the right foot injury.

[117]     I accept
Dr. Chalmers opinion regarding the causation, diagnosis and prognosis of the
plaintiff’s ongoing left heel pain.

j)               
Dr. Hendre Viljoen

[118]     Dr.
Viljoen is a psychologist specializing in assessing and treating persons with
cognitive issues including the effects of a mild traumatic brain injury (MTBI).

[119]     He was
qualified without debate as an expert in the field of neuropsychology.

[120]     He
conducted a neuropsychological assessment of the plaintiff in June/July, 2013
at her counsel’s behest. His report was filed in evidence without objection,
and he was produced for cross-examination.

[121]     He opined the
plaintiff suffered a MTBI because of the accident. Even though the accident
crew recorded a normal GCS of 15 at the scene, he understood (confirmed by the
evidence of the plaintiff and Ms. MacKenrot) that she was somewhat dazed and
disorientated at the scene.

[122]     While most
people recover from the organic insult to the brain following a MTBI, some do
not. Secondary emotional symptoms (sometimes called Post-Concussion Syndrome)
can result in ongoing disability well after the collision’s direct consequences
have resolved.

[123]     In the
plaintiff’s case, she had a high level of intellectual functioning before the
accident and therefore had a lot of intellect in reserve. She is still
functioning above average but not at her pre-accident level.

[124]     Dr.
Viljoen made recommendations for the plaintiff’s continued rehabilitation. He
would like to see an active exercise program to hopefully maximize her energy
level and mood. He likened a person with chronic pain to an elastic band. If
you stretch an already tight rubber band, it will break.

[125]     He also
suggested that counselling would assist the plaintiff if she lost a loved one
or changed employment circumstances. She would need it because, in his opinion,
her coping mechanisms are not what they were before.

[126]     He
performed intellectual testing that revealed a person in the superior range
with some subtle memory, distractibility and attention span deficits. He agreed
the deficits were mild and caused by having to deal with pain or being anxious
during the testing. But he felt that she was underreporting her difficulties.

[127]     Dr.
Viljoen was helpful and unbiased. I accept all his opinions.

k)             
Karen Winkler

[128]     Ms.
Winkler is an Occupational Therapist. She conducted a physical capacity
evaluation of the plaintiff on January 6, 2012 and a cost of future care
analysis on February 24, 2012. Her reports were filed.

[129]    
In her March 22, 2012 report, she discusses Ms. Brown’s employability:

In my opinion, with
consideration only to her present physical capacity, Ms. Brown is considered to
be employable (i.e. with some physical restrictions) on both a part-time basis
and a full-time basis, with the potential to work in limited strength
occupations. The extent of her physical restriction, as listed below, is what
renders her employable versus competitively employable. In other words, Ms.
Brown would not have the physical capacity to be able to access in an open
labour market any jobs that have requirements for those restrictions as given
below, despite being qualified in other ways (for example, education, training,
interests and aptitudes). She may require modified job duties or other
environmental/ergonomic intervention related to the restrictions listed below,
which may limit the number of job titles that she is able to obtain or maintain.

[130]     She found
the plaintiff could not sit, stand, walk, bend, kneel/crouch, climb/balance, and
reach items for long periods.

[131]     Ms.
Winkler’s report and evidence was quite helpful understanding both the
plaintiff’s current level of physical restrictions and what her future care
needs will be. I generally accept her evidence, opinions and, as will be seen
later in these reasons, recommendations for future care.

l)               
Dr. Robert Froh

[132]     Dr. Froh
is an orthopedic surgeon (knee and hip) and was also qualified as such without
debate. He has been practising in British Columbia since 1987.

[133]     On May 17,
2013, he assessed Ms. Brown at the defence’s behest. His report is dated July
11, 2013 and was filed.

[134]     His
examination lasted approximately 1.5 hours. He observed small “Pump Bumps” on
the lateral side of both feet but no abnormalities of either ankle joint.

[135]     Regarding
the neck issue, he only reviewed the pre and post-accident x-rays reports. He
did not review the actual images. He said the plaintiff had long standing
degenerative changes to the C4-5 and C5-6 vertebrae. His opined the
degeneration began many years ago and has become progressively worse. He
acknowledged that findings of degenerative changes on x-ray are part of the
normal aging process and people with degenerative spinal changes spines are
often asymptomatic.

[136]     His
diagnosis was Grade II whiplash involving the soft tissues of the neck. He
agreed that while some people recover from these injuries, others do not. He
agreed that scarring created while the soft tissues heal can cause ongoing
symptoms. He agrees with Dr. Adrian that the plaintiff’s condition in the neck
has stabilized, that is, it will not get better or worse.

[137]    
His assessment confirmed her left sided neck rotation was restricted and
painful. On page three of his report, he states:

This patient had a decrease in
cervical spine range of motion. This involved both flexion and extension and
left-side rotation. Passive range of motion was smooth and similar. Extremes of
range of motion caused posterior neck pain, especially to the right paraspinal
area. This was especially prominent with left-sided rotation. There was posterior
aching with extension.

[138]     He agreed
that degenerative changes in the neck would make the neck more susceptible to
injury from a traumatic event. Less force would be required to cause injury
than would be required of a normal neck.

[139]     He
observed her walking for a short distance and found her gait was normal. He did
not see her walking up stairs and agreed he did not know if that would
reproduce pain. He also agreed that the August 2009 right foot bone scan showed
findings consistent with a significant contusion to the right heel.

[140]     He agreed
that the June 9, 2012 SPECT scan of the left heel showed Achilles Tendinopathy
at the insertion sight. He agreed it was in different area than the Pump Bump
he observed. He also agreed the June 14, 2013 MRI showed the same thing.

[141]     His said
the plaintiff should discontinue physiotherapy because he does not believe that
ongoing physiotherapy is helpful. In fact, he believes it could be inhibiting
her wellness. He believes she should become active by walking more, getting
exercise and riding a recumbent bike. At the same time, he agrees that her
injuries will prevent her from engaging in certain activities.

[142]     He agrees the
plaintiff’s symptoms will not change.

[143]     Dr. Froh
testified in a straightforward and impartial manner. His opinions regarding the
plaintiff’s neck and upper back issues generally do not significantly differ from
the opinions of Drs. Brown and Adrian. His opinion of the plaintiff’s left heel
issue differs from Dr. Chalmer’s. Where it differs, I prefer Dr. Chalmer’s opinion.

m)           
Edgar Emnacen

[144]     Mr.
Emnacen is an occupational therapist and was so qualified.

[145]    
On May 9, 2013, he conducted a full day physical capacity evaluation of
the plaintiff at the defence’s behest. As it happens, his assessment was three
weeks prior to the plaintiff’s second accident on June 1, 2013. It was a one
day assessment, and the plaintiff completed it with high levels of physical
effort. He observed her walking relatively short distances (including a 5
minute brisk walk) with a normal gait pattern, but he noted a slight painful gait
on the left. Her strides between steps were short. She was also able to walk a
set of eighteen stairs during the assessment albeit using the handrail most of
the time. His findings were quite similar to the FCE Ms. Winkler conducted 16
months before. Any improvement in her physical symptoms appears to have been
marginal. For example, at page 27 of his report he states:

Ms. Brown demonstrated limited neck flexion, extension and
rotation ranges. She demonstrated limited tolerances for sustained neck flexion
and extension positioning due to reported neck and upper back burning sensations;

Ms. Brown worked with sustained neck flexion positioning to
up to approximately one minute durations at a time without difficulties; longer
periods elicited reports of neck and upper back symptoms and demonstrations of
compensatory method. For example, when completing questionnaires in sitting,
she sat in a task intensive position, or in a forward lean position, with
minimal neck flexion. She eventually held the papers up to eye level while
sitting straight and neutral neck position, suggesting difficulties reading the
papers on the desk with her neck flexed.

When completing sustained
overhead work, Ms. Brown extended her back to compensate for extending her
neck; she eventually kept her neck and back in neutral, and intermittently
gazed upwards with her eyes to view the overhead work.

[146]     Mr.
Emnacen’s evaluation findings indicated the plaintiff was suited for full-time
work within the limited (sedentary) to light strength NOC range of job
classifications. Any work she did needs to have the flexibility to allow her to
alternate between sitting and standing postures to manage her neck/upper back
symptoms, especially when working at a desk. Those activities would require an
ergonomically designed office/work station. He agreed with Ms. Winkler’s
opinion that she is employable on a part-time and full-time basis with some
physical restrictions.

[147]     Based on
his understanding of the plaintiff’s work environment and duties as the
Executive Director of Arbutus Care, he said her physical limitations were well-suited
for this job; she can continue working there on a full-time basis.

[148]     Mr.
Emnacen made recommendations to assist the plaintiff in functioning at work and
at home. He supported an active rehabilitation program for two months then transitioning
to a community based program. He did not support ongoing physical therapy until
retirement. An active rehabilitation program incorporating pain management
strategies would suffice. He did not support a gym pass.

[149]     Regarding
housecleaning and home maintenance, he agreed that two hours of cleaning every
two weeks was appropriate, but these services should be reduced starting at age
75 by 20% per year and stopped at age 80. This reduction acknowledges that, regardless
of the collision, the plaintiff would likely have required housecleaning
services to some degree later in life. The same was true regarding home
maintenance requirements.

[150]     He
supported Ms. Winkler’s recommendation for a work place ergonomic assessment;
however he did not support all of the listed equipment – e.g., a vertical
mouse, tented keyboard and voice activated software.

[151]     Given the
plaintiff’s ongoing sleep difficulties, Mr. Emnacen agreed with Ms. Winkler’s
recommendations for sleep aids and adjustable bed.

[152]     Mr.
Emnacen was unbiased, objective and quite helpful and I accept this evidence.

n)             
Darren Benning

[153]     Mr.
Benning is an economist with PETA Consultants Ltd who prepared two reports on the
plaintiff’s behalf.

[154]     The first
report was dated December 12, 2012; he provided the Court with the present
value of the future care cost recommendations contained in Karen Winkler’s
March 22, 2012 report. He also provided Future Cost of Care Multipliers.

[155]     In the
second report dated December 13, 2013, he provided future income loss multipliers.

[156]     The
defence did not require Mr. Benning for cross-examination on his reports.

[157]     I found
his reports helpful.

B.             
The Plaintiff’s Position

[158]     Before the
collision, the plaintiff was a healthy, active, strong and capable woman. She
was functional in all respects. She had a strong work ethic and took great
pride in jobs well done.

[159]     She was
handy around the home. She was responsible for the heavier home making and
maintenance. She fixed appliances; installed light fixtures; and installed
tiling, flooring and baseboards. She was skilled at and able to perform
renovations and repairs when required to not only her own home but also other’s
homes.

[160]     She stated
that although she did have occasional work stress related headaches, stiff
shoulders and neck, they were intermittent and were relieved by taking Tylenol.
She had no significant health issues.

[161]     The
plaintiff’s injuries from the collision have significantly impacted her day to
day life at home and work, and they compromise her ability to travelling participate
in recreational activities. Whereas before the collision she did the heavier
homemaking activities, went for walks, golfed and travelled without
restriction, she is now limited in what she can do. If she pushes herself
beyond her limits, she pays for it with increased pain in her neck and
shoulders and increased headaches.

[162]     She has
trouble in many aspects of her previously unimpaired day to day life including:
bending; extending or rotating her head; and overhead work, such as changing a
light bulb. She has to compensate. She now plans ahead on where she will sit at
a meeting. And she carefully ensures visitors to her office are seated in a
chair that does not require her to turn her head to the left. She tries to keep
her head level and pointed straight. She takes elevators instead of stairs even
if it is one flight.

[163]     She also
has cognitive troubles. Her memory, concentration and ability to multi-task are
reduced. She is fatigues easily and is far less sociable.

C.             
The Defendant’s Position

[164]     The defendant’s
position is that the plaintiff had pre-accident signs and symptoms of cervical degeneration
and, indeed, six months before it, she was being investigated for pain
complaints arising from it. While the defendant does not dispute the plaintiff
was injured and suffered neck/upper back injuries and headaches, the plaintiff
was suffering from many of those complaints before the collision.

[165]     Regarding
the plaintiff’s claim for loss of future earning capacity, the defendant says
she has a full time steady job she capably performs; her employer likes her and
has no plans to replace her. Accordingly, despite the plaintiff’s ongoing
complaints and disability, no real or substantial possibility of any future
loss of earnings exists. In other words, the plaintiff’s earning prospects are the
same notwithstanding the accident.

[166]     Regarding
the plaintiff’s claim for future care needs, the defendant says that
physiotherapy and other passive modalities are not helping the plaintiff (by
that I take it the defence means curing the plaintiff) and therefore those
claims should not be considered. The defence also disputes the claim for the
cost of selling the plaintiff’s townhome and replacing it with a home with one
level.

D.             
Expert Evidence – Summary

[167]     The expert
evidence was generally consistent and in agreement. It establishes the
plaintiff suffered soft tissue injuries to her neck and upper torso that,
although stabilized, are chronic. While she functions at home and work, she is
in constant pain and completes tasks at a level much lower than she is used to.

V.             
Damages Assessment

A.             
General Damages

[168]     The
plaintiff seeks $115,000 for general damages. The defendant, while
acknowledging the plaintiff’s symptoms from her injuries have become chronic,
argues she should only receive $65,000.

[169]    
The law regarding to general damages was helpfully summarized by
Russell, J. in Hartnett v. Leischner, 2008 BCSC 1589:

[80]      The purpose of non-pecuniary damage awards is to
compensate the plaintiff for “pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at
para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248. While each
award must be made with reference to the particular circumstances and facts of
the case, other cases may serve as a guide to assist the court in arriving at
an award that is just and fair to both parties: Kuskis at para. 136.

[81]      There are a number of factors that courts must take
into account when assessing this type of claim. Justice Kirkpatrick, writing
for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th)
19, outlines the factors to consider, at para. 46:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life.

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

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

[170]     Generally
speaking, the plaintiff was a credible witness. I accept her evidence that her
pre-collision complaints were not an issue for her in the months preceding the collision.

[171]     I find the
left heel issue is indirectly related to the collision and resulted from
overcompensating for the injury she received to her right foot. There was no
evidence of any pre-accident issues with the plaintiff’s feet. Despite the
somewhat sparse references to right foot complaints in the various clinical
records, I find that shortly after the collision and because of some unknown
mechanism that occurred during impact, the plaintiff developed pain in her
right foot. This pain resolved over the following year but during that time because
of over use, her left foot became symptomatic. It gradually started to bother her
much more than the right foot. By the fall of 2011, it began to affect her
work, home, and social life.

[172]     Currently,
her left foot symptoms present restrictions in her work, home and social
environment. Dr. Chambers expects the condition will not improve or worsen. With
surgery, therapy or by using specialty equipment (e.g, clogs, recumbent
bicycle, strengthening exercises and therapies), she may experience symptomatic
relief; however the symptoms will likely never resolve altogether. And her
right heel pain may return with the right leg compensation caused by the left
foot pain.

[173]     Dr.
Chalmers opines her left foot issue will not affect her current employment,
which she is able to do, albeit with difficulty. But daily living and walking activities
will continue to be restricted into the future.

[174]     The
plaintiff has suffered significantly from the injuries the collision caused. Despite
her efforts to soldier on with work and home life, she continues to suffer from
headaches, neck, upper back, knee and left heel symptoms. She will suffer from
these symptoms well into the future and quite likely permanently.

[175]    
The plaintiff is to be given credit for moving forward with her life as
best as she could despite her injuries. As Goepel J. stated in Guthrie v.
Narayan 2012 BCSC 734 at para 30:

Ms. Guthrie is seeking
compensation for what she has lost, not what she can still do. … She should not
be punished for trying to get on with her life and enjoying it the best she can
regardless of the limitations imposed on her as a result of the accident.

[176]     The
medical evidence is consistent: the plaintiff’s symptoms have likely plateaued.
While she will not get any worse than she currently is, she likely will not
improve. While she can function, it is at a much lower level than before the
accident.

[177]     Having
regard to all the evidence, the principles set out in Stapley v. Hejslet,
2006 BCCA 34 the plaintiff suffering for 4.5 years to date and continued future
suffering, as well as the helpful case law counsel provided, I award $95,000 in
general damages.

B.             
Special Damages

[178]     Exhibit 17
sets out the details of the plaintiff’s claim for Special Damages. Many of the
usual items were claimed, including amounts for damaged clothing, prescription
medications, physiotherapy, parking, housecleaning costs and mileage.

[179]     The
defendant agrees that the claims for damaged clothing ($300), prescription
medications ($620.76), physiotherapy ($4,055), parking ($260.75), housecleaning
services ($5,640) and mileage ($318.04) are reasonable expenses and agrees to
pay for them. An agreement regarding these items was reached towards the end of
the trial. The total special damages agreed to are $11,194.55.

[180]      The
largest and only disputed item is the claim for $33,801.79 representing the net
commissions on the sale of the plaintiff’s Gilford Street town home ($20,680),
storage ($599.55), costs associated with purchasing the Homer Street property
including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).

[181]     The issue
is whether the costs related to moving are reasonable expenses that can be
claimed. But for her injuries and resultant difficulty she had negotiating the
stairs inside and outside of home, the plaintiff argues she would never have
sold, moved and incurred those expenses. She relies on Rodger v. McDowell,
[1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189.

[182]     The
defendant’s position is that the plaintiff’s decision to move residences is not
supported by the medical evidence and, in any event, is not a reasonable
expense that defendant should bear. The reason given for the move relates to
the plaintiff’s difficulties with stairs due to her knees and left foot issue. The
defendant’s position is that the left heel complaints did not start until over
one year after the problems with her right heel resolved. The defendant points
to Dr. Brown’s clinical records in August 2010 that suggest the plaintiff was
able to complete her daily walks without problems. The October 12, 2011 entry
describes the left sided heel problem as a “new” symptom. The decision to sell
was made in November 2011.

[183]     The
defendant says it is probable, given Ms. Kratzer’s age, that despite the
fondness the couple had for the Gilford townhouse, they would have moved in
time to a smaller, single level home and incurred commissions and moving costs.
In other words, the plaintiff is really not out of pocket these expenses – they
have simply been incurred sooner than they otherwise would have.

[184]     The
defendant also points out that the plaintiff can still climb stairs, albeit not
as well as before.

[185]     In Rodger,
an award for commission expenses was made in similar circumstances where a
plaintiff moved from a two level home to a one level home. The basis of the
award is unclear. It apparently was based on defence submissions that “Ms.
Rodgers would be adequately and appropriately compensated if she is reimbursed
for real estate commission and moving expenses.”

[186]     In Piper,
a claim for real estate commissions, moving costs and taxes related to changing
residences was dismissed because the plaintiff’s low back injury was not proven
to have been caused by the motor vehicle accident.

[187]     In this
case, the plaintiff argues the expenses associated with changing residences are
directly attributable to the collision and the plaintiff’s prolonged distress
from having to use multiple stairs in the Gilford residence on a daily basis. She
could not manage them and a move to a single level home was necessary.

[188]     In my
view, these expenses are not recoverable from the defendant because:

a.       the
principles of compensatory damages in tort require the plaintiff to be
compensated for all reasonably foreseeable losses directly or indirectly caused
by the tort (BG Checo International Ltd. at para 47);

b.       the
plaintiff is not to be placed in a position better than his or her original one.
The court must determine the plaintiff’s “original position” before the tort
and her “injured position” after the tort. It is the difference between these two
positions that is the plaintiff’s loss (Athey at para 32).

[189]     While the accident
indirectly caused the plaintiff’s left heel pain and that moving residences was
a foreseeable risk, on the Athey test, the plaintiff’s claim under this
head must fail. I find that the plaintiff would have moved residences to a one
story home in the future in any event. These expenses would have been incurred
regardless, albeit sooner (perhaps a year or two) than otherwise expected. In
other words, these expenses were not incurred “but for” the collision.

[190]     Consequently,
I will award $11,194.95 in special damages.

C.             
Loss of Future Earning Capacity

[191]     The plaintiff
seeks $200,000 for loss of future earning capacity. The plaintiff had no retirement
plans and intended to work as long as she could, perhaps into her 70’s; now her
injuries will likely force her to retire much sooner.

[192]       
The defendant argues the Court should not make an award under this head.
She argues that the plaintiff’s injuries have not disabled from her work as an
Executive Director at Arbutus Care. It is not a physical job, and the problems
noted during the two FCE’s (e.g., bending, kneeling, crouching, climbing,
balance, reaching, etc.) are not part of her regular duties or any other
position she would realistically be expected to assume given her age, education
and experience. The defendant points out that the plaintiff is happy with her
new job as being a good fit for her. It allows her to take breaks as necessary.
She has five managers reporting to her to whom she can delegate work, and
generally, she works fewer hours than at Canada West. Her current job is also
less stressful.

[193]         
The defence points out that her employer is happy with her and both
expect this to continue. The plaintiff can and will remain in her current
position for the long term, and the evidence demonstrates no real or
substantial possibility that the plaintiff will suffer an accident related
income loss into the future.

[194]         
In considering if the plaintiff is entitled to damages for loss of
future earning capacity, the evidence must demonstrate a real and substantial
possibility that her capacity to earn income in the future is reduced and that the
reduction will result in lost income (Sobolik v. Waters, 2010 BCCA 523
at paras. 39 – 43); the test is two-pronged (Rosvold v. Dunlop, 2001
BCCA 1; Perren v. Lalari, 2010 BCCA 140).

[195]     In Morlan
v. Barrett, 2010 BCSC 1767 the Court was faced with a similar fact pattern.
That case involved a 50 year old female who was a highly energetic, well-motivated
executive assistant; she easily handled the rigorous demands of her job and
life in general. Because of persisting soft tissue injuries to her neck,
shoulder, upper back, she left her job and was employed in a less demanding but
higher paying job. Regarding loss of future earning capacity, Stewart, J
stated:

[22]  I take into account
factors and those that relate to the state of the health of the plaintiff and
her ability to work. The plaintiff has established a real and substantial
possibility – not mere speculation – that had she not had to forfeit her job at
the B.C. Fed she would have, within a few years of the date of the motor
vehicle accidents, taken advantage of an opportunity to perhaps move up
in the hierarchy of the B.C. Fed to the point of becoming a Director and with
that received an increase in salary and benefits. That is the net effect of the
evidence of the plaintiff and of Lynda Bueckert. Moreover, as of January 6,
2007 the plaintiff had to assume that she would retire from the B.C. Fed when
she turned 65. After January 6, 2007 the law changed. I find that the
plaintiff’s love for her job at the B.C. Fed combines with my picture of what
she was before January 6, 2007 and results in my accepting her evidence to the
effect that it is a real and substantial possibility that absent the
defendants’ negligence she would have continued to work at the B.C. Fed even
after she had turned 65. I have considered the positive and negative vagaries
of life, i.e., the contingencies. Having considered the whole of it I award the
plaintiff $425,000.

This amount was reduced on appeal to $275,000.

[196]     The
defendant points to five cases supporting her argument that the plaintiff has
not shown an impairment of her earning capacity: Cheng v. Kamboz, 2009
BCSC 1160; Lorenz v. Gosling, 2011 BCSC 1250; Rutter v. Allen, 2012
BCSC 135; Daitol v. Chan, 2012 BCSC 209; Werner v. Ondrus, 2013
BCSC 100.

[197]     I reviewed
all these cases. They are distinguishable from the instant case.

[198]     The
defendant’s argument is flawed because it fails to appreciate the medical
evidence that persuasively demonstrates the plaintiff’s injuries will likely cause
her to retire earlier than she would have had she not been injured.

[199]     Dr. Brown
has been the plaintiff’s general practitioner for over 18 years. She knows the
plaintiff well. She described her as, for the most part, enjoying good health
throughout her adult life. The accident compromised that health.

[200]    
At page 9 of her report (Exhibit 1, Tab 1) she said:

At 63 years of age, retirement
will probably be necessary sooner than she had envisioned because of the
fatigue of managing her chronic pain. Retirement plans for travel and golf have
been drastically altered.

I accept Dr. Brown’s opinion on this point.

[201]    
Dr. Adrian also provides assistance. Although he did not discuss
retirement, he provides a helpful prognosis at page 9 of his report (Exhibit 1,
Tab 10):

In general, individuals experiencing
mechanical spinal pain following a whiplash-type impact experience improvement
over time. Some individuals, however, experience persistent pain despite the
passage of time. In other words, not all individuals recover from these types
of injuries. In my experience, individuals suffering symptoms beyond two years
from the injury date are unlikely to experience significant improvement.

[202]     In Ms.
Brown’s situation, over two years have elapsed since the accident. She
experiences persistent mechanical neck pain symptoms and neck-related headaches
that affect her activity levels. The prognosis for further recovery of the
injuries suffered in the accident to her neck over time is poor. The injuries
suffered in the accident will likely undergo progressive deterioration over
time.

[203]    
I also have before me Dr. Viljoen’s uncontradicted opinion that is
helpful in determining the plaintiff’s ability to function in the future. He
assessed her in the summer of 2013 after she had been employed at Arbutus Care
for over one year. At page 7 (Exhibit 1, Tab 11), he opines:

Although she describes being able to cope appropriately with
her duties, it is my experience that the ongoing strain associated with having
to rely on compensatory strategies will tend to place a person at increased
risk for earlier retirement than would have been the case but for the injuries
sustained in the accident. When considered in the context of ongoing chronic
pain, sleep disturbance, and physical functional limitations, as described in
the reports reviewed, such an eventuality would appear even more likely.

[204]     This
assertion makes complete sense, and I accept it. Early retirement is not “mere
speculation” as the defendant suggests. It is a real and substantial
possibility.

[205]     Having
considered all of the evidence, the first prong of the test is met. The
plaintiff’s earning capacity has been reduced; she will, on more likely than
not basis, be forced to retire earlier than would otherwise be the case.

[206]     I must now
assess that loss. The plaintiff is a relatively high income earner and has been
for many years. In evidence are her income tax returns from 2006 to 2012. In
those returns she reported T4 income as follows (round numbers):

 2006   – Canada West        $132,000;

 2007   – Canada West        $125,000;

 2008   – Canada West        $158,000;

 2009   – Canada West        $137,000;

 2010   – Canada West        $135,000;

 2011   – Canada West        $123,000;

 2012   – Revera                 $115,000;

[207]     It is
impossible to predict the future and impossible to precisely know how many
months or years the plaintiff’s working career will be shortened, but I am
satisfied that it will be.

[208]     All things
considered – including positive contingencies and negative contingencies – I
award the plaintiff $150,000. This amount is roughly equivalent to what her
loss would be if she prematurely retired from Arbutus Care 15 – 16 months
sooner than she would have but for her injuries.

D.             
Future Care Costs

[209]     Future
care costs are a matter of prediction requiring the Court to review the
evidence as to what care is likely to be in the plaintiff’s best interest: Krangle
(Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205 at para 21.

[210]     The
plaintiff must prove a real and substantial risk that she will incur these
expenses. In other words, the evidence must demonstrate a realistic possibility
that the plaintiff will incur the claimed expenses in the future.

[211]     The
plaintiff seeks future care costs for ongoing physiotherapy, housecleaning,
home maintenance, an ergonomic assessment, sleeping equipment and medications
based on the recommendations of her doctors and Ms. Winkler. Mr. Benning
received a schedule of some of those costs, and he provided the Court with a
present value calculation of these costs and a helpful multipliers schedule.

[212]     In her
submissions, the defendant agreed to a future care award for:

i)        adjustable
bed and/or sleeping equipment : $2,000;

ii)        8
week active rehabilitation program@ $60/session; 3 sessions per week: $1,440;

iii)       10
months of further passive physiotherapy ($60/visit for 20 visits): $1,200;

iv)       4
years of further physiotherapy ($720/yr): $2,880;

v)       non-prescription
medications and prescription medication costs not covered by the plaintiff’s
extended health : $1,000; and

vi)       cleaning
assistance ($1,560/ yr for 3 years): $4,680.

[213]     The
defendant says the plaintiff is entitled to $13,200. She says this amount accounts
for all general contingencies including age related dysfunction.

1.              
Physiotherapy

[214]    
The physiotherapy frequency and duration is disputed. The medical
evidence is that the best hope the plaintiff has to keep functioning at her
current level is with future support. Ms. Winkler recommended continuing physiotherapy
with a rehabilitation focus. She said:

the goal of the program is to
maintain, if not improve, Ms. Brown’s tolerance to activity. The physiotherapist
will also be able to provide treatments to manage any flare-up symptoms as a
result of a change in activity.

[215]    
Dr. Brown reviewed the recommendations Ms. Winkler made and set out in
her reports of March 22, 2012 (Exhibit 1, Tab 6) and June 25, 2013 (Exhibit 1,
Tab 7). At p. 9, Dr. Brown states:

I do endorse O.T. Karen
Winkler’s recommendations of March 2012 and June 2013 and deem medically
reasonable her allowance for continued physiotherapy for symptom management; a
personal trainer to initiate an active rehabilitation program that could be
self perpetuated by a community gym pass; assistance with regular and seasonal
housekeeping and the provision of an adjustable bed to facilitate sleep
positioning. Although the frequency for all these services will diminish in
retirement, they will continue to be medically reasonable supports.

[216]    
Dr. Adrian (Exhibit 1, Tab 9) agreed the plaintiff would probably
continue experiencing difficulty performing activities that place physical
forces on her neck.

[217]    
In Cole v. Smith, 2002 BCSC 1235, the plaintiff had chronic soft
tissue injuries and continued physiotherapy to control her symptoms. The court
accepted that ongoing physiotherapy was required to maintain her present
function.

[218]    
Physiotherapy is required for the plaintiff’s symptom management. As Dr.
Adrian put it, the idea is to prevent “collateral damage”. The treatment frequency
will depend on her activity level. If her activity level picks up, more
physiotherapy will be required. Once she retires, less physiotherapy will
likely be needed.

[219]    
The plaintiff claims she needs 48 physiotherapy treatments per year (4
times per month) until age 75 tapering to 12 per year thereafter. Given the
evidence that required physiotherapy treatments will vary with her activity
level, given that she has not attended physiotherapy four times per month in
the past, and given my finding that the plaintiff will be forced to retire
earlier than she otherwise would have, physiotherapy once per week for the next
five years or so tapering off to once per month until age 75 will meet her
rehabilitation needs.

[220]    
Using Mr. Benning’s present value table as a guide and recognizing that
future care costs are an assessment and not a calculation, I award $20,000.

2.              
Gym pass

[221]     I am not
persuaded the plaintiff would use a gym pass in the future. She has not gone to
a gym in the past even though her building has a gym. I decline to make an
award for a gym pass.

3.              
House Cleaning and home maintenance

[222]     For the
reasons provided above, the plaintiff will continue to require help for the
heavier aspects of cleaning and maintaining her residence. However, at some
point in the future, she likely would have hired a housecleaner and someone to
maintain her home as needed notwithstanding the Collision, likely at the age of
70, not 75 as she suggests. I award $12,000.

4.              
Ergonomic assessment and equipment

[223]     Both OT’s,
Ms. Winkler and Mr. Emnacen, support and recommend an ergonomic assessment of
her work place and equipment to make her as functional as possible at work.

[224]     The
plaintiff would benefit from such an assessment, and her work duties now
require an ergonomically designed office/work station. Ms. Winkler priced a
one-time assessment at $380. She priced equipment at $1,053 (the recommended
voice activated software was not pursued by the plaintiff). I award $1,433.

5.              
Cognitive Rehabilitation Therapy

[225]     Dr.
Viljoen’s neuropsychological assessment revealed the plaintiff was having
continued cognitive and emotional difficulties. He opined that post-concussion
syndrome symptoms can linger well past the direct consequences of any organic
injury to the brain has resolved.

[226]     The
plaintiff is experiencing this situation. Although she continues to cognitively
function relatively well, she has not recovered to her pre-collision function.

[227]     In his
July 22, 2013 report (Exhibit 1, Tab 11), Dr. Viljoen makes recommendations to
assist the plaintiff in maximizing her level of functioning and improving her
quality of life. One of those recommendations is periodic psychological
therapy/counselling. I agree with his recommendations that some degree of
counselling will likely be needed to provide her with coping strategies in the
future. These sessions range from $1,000 – $1,800. I award $1,400 under this
category.

6.              
Adjustable bed

[228]     The
plaintiff continues to sleep at a 45 degree angle while propped up on pillows.
She is not sleeping well and the sleep that she does get is not restful. She
needs an adjustable bed. The defendant, quite properly, agrees but suggests that
$2,000 should suffice. The evidence suggests a wide range of costs from $2,000
to $7,400. Taking everything into account, including the replacement cost and
the cost the plaintiff and her partner would have incurred to replace mattresses,
I award $5,000. That sum includes the cost of a cervical pillow. She will not
need a body wedge once she purchases the adjustable bed.

7.              
Medications

[229]     To
continue functioning at work, recreationally, socially and at home, the
plaintiff will continue to need Extra Strength Tylenol and Nortriptyline on a
regular basis. Once she retires from work, her need for these medications will
decrease. Based on the evidence and doing my best to strike a balance, I award
$2,000.

8.              
Summary

[230]     To
summarize my award for future care costs:

a.       Physiotherapy:
$20,000

b.       Gym: no
award;

c.       House
cleaning and Maintenance: $12,000;

d.       Ergonomic
assessment and equipment: $1,433;

e.       Psychological
Therapy/counselling: $1,400

d.       Adjustable
bed: $5,000; and

e.       Medications:
$2,000

Total: $41,833.00

VI.           
Allocation of damages between the May 4, 2009 and June 1, 2013 Accidents

[231]     When the
evidence concluded, the Court was advised that the parties agreed on how the
damages should be allocated between the two collisions. No action has been
commenced regarding the June 1, 2013 accident. The parties requested that the Court
assess damages globally and then allocate the damages between the two
accidents. Mr. Wong advised the court that the defendant’s insurer (who is the
same insurer for both at fault drivers) would honor the Court’s allocation and
pay the plaintiff 100% of the damages awarded.

[232]     This
approach makes sense, and the Court appreciates counsel’s pragmatic solution to
this issue.

[233]     The second
accident was very minor by comparison. The second accident aggravated her neck,
upper back, shoulder, and headache symptoms for approximately one month. By approximately
the end of June 2013, she had recovered to the base line that she was at before
the second accident. There is no evidence that the second accident had any
effect on the plaintiff’s claim under any head of damage other than general
damages.

[234]     The functional
capacity evaluation Mr. Emnacen conducted three weeks before the second
accident assists in making this assessment.

[235]     I assess
general damages for the second accident in the amount of $5,000.

VII.          
Summary

[236]     The
plaintiff shall have judgment as follows:

VIII.        
Costs

[237]    
Subject to matters I am not aware of, the plaintiff is entitled to
costs.

“G.P. Weatherill J.”