IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131220

Docket: M141869

Registry:
New Westminster

Between:

Janis Dianne Butcher

Plaintiff

And

Peter Anthony Vantol

Defendant

Before:
The Honourable Mr. Justice Blok

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff seeks damages for injuries suffered in
a car accident that occurred on September 22, 2010.  Liability is admitted.

[2]            
The essential dispute between the parties concerns the severity of the
plaintiff’s ongoing symptoms and the effect that these will have in future.

I.                
Witnesses

A.             
Janis Butcher

[3]            
Ms. Butcher was travelling eastbound on Lougheed Highway, west of
Mission, B.C., and had stopped at a light located at an intersection.  While
stopped, she was struck from behind by an International flatbed truck.  The
impact pushed Ms. Butcher’s 2002 Honda Accord into the vehicle ahead of
hers, causing substantial damage to both the front and rear of the Honda.

[4]            
Ms. Butcher was upset and hyperventilating at the scene.  An
ambulance attended and paramedics checked her out.  Ms. Butcher’s husband
was called; he arrived on the scene and he took her to the local hospital where
she was examined, given a medication prescription and released.  Ms. Butcher
said that she felt nauseated, sore, and "not right".

[5]            
The next morning, Ms. Butcher had pain in her neck and back as well
as a headache, none of which were quelled by the pills prescribed for her, so she
went to a walk-in clinic to get an alternate prescription.  Ms. Butcher
said the pain was in her neck (both sides, from her shoulders up to her head),
her upper back and shoulder area, and she was having headaches.  In the ensuing
days the pain spread down her back to the mid-point and out to the sides. 
Ultimately, she developed low back pain as well.

[6]            
Ms. Butcher, who has just turned 60, is employed as a constituency
assistant for a local Member of Parliament.  She earns $60,000 per year.  She
returned to work in the week following the accident, just half days initially,
and her husband drove her to work as she found the driving too painful.  The
work schedule of half-days lasted no more than a week.

[7]            
Through to the end of 2010 Ms. Butcher had some days with extreme
pain and other days when the pain would ease.  The sources of her pain varied
between her neck, upper back, shoulders and her low back, with headaches at
times.  She testified that often the day was influenced by the quality of her
sleep the night before.  She said her sleep was always interrupted as she found
she had to take medication every four hours and make liberal use of a heating
pad, but sometimes the medication would not help and she could not get back to
sleep.  She testified that the pain was terrible when the medication started to
wear off and then the pain "would come from everywhere", making it
such that she could not get comfortable in any position.

[8]            
In October and November 2010 she underwent six sessions of physiotherapy
and five sessions of massage therapy, which offered only temporary relief at
best.

[9]            
After returning to work Ms. Butcher took days off as needed, or
left work early if she was not up to it or had, for example, a therapy
appointment.  She did not, however, keep any record of work days missed or time
lost.  In cross-examination, Ms. Butcher agreed that the days or half-days
of work missed after the initial post-accident time might be just a handful in
number.

[10]        
By early 2011 she was experiencing no improvement of her symptoms so she
attended upon her family physician, Dr. Toews, instead of the walk-in
clinic she had favoured before.  Dr. Toews referred her for further
massage therapy and she underwent sessions in February and March 2011.  Again
these offered limited relief.  Ms. Butcher said that all of the
previously-mentioned areas of her body were still problematic, though the
headaches waned in frequency to once every two to six weeks.

[11]        
Ms. Butcher did not work in her regular employment from late March
to early May 2011 because a federal election had been called and her regular
employment ceased.  She did, however, work on the election campaign but she
said that the physical demands of that work were “totally different” and she
could pick and choose what she wanted to do.  She found that her symptoms eased
up a bit, but they returned by the end of May after she had resumed her regular
employment for some weeks.  Commencing in August 2011 she underwent further
massage therapy, roughly one session per month, through to October 2012.

[12]        
By 2012 the headaches had subsided further, her neck was the same but
her low and mid-back became worse.  She said she felt exhausted by the end of a
work day, although Fridays were somewhat better as her work location on Fridays
was close to her home.  At the end of a work day she would put a heating pad on
her back and take analgesic medication to quell the symptoms.

[13]        
In August 2012 she was referred to Diane Sather, a medical exercise
therapist, with a view to commencing an active exercise program.  Ms. Butcher
was, however, unable to tolerate exercise therapy and two days after the
session she could not get out of bed.  On return to Ms. Sather several
weeks later, Ms. Sather concluded that Ms. Butcher was simply not
ready for this sort of therapy.  Instead, Ms. Butcher was referred for
further physiotherapy and she underwent nine physiotherapy sessions in October
and November 2012.  As a result of the attendance on that physiotherapist, Ms. Butcher
made adjustments to her work station, following the physiotherapist’s
recommendations.

[14]        
Currently, Ms. Butcher uses prescription medications, an analgesic
and muscle relaxant, and an analgesic cream, the latter used for her lower
back.  She also takes a non-prescription analgesic (Robaxacet), a sleep aid,
and Gravol.

[15]        
Because of her sleep difficulties Ms. Butcher has tried adjustments
such as a new bed and pillow but these did not help.

[16]        
Prior to the accident, Ms. Butcher was a very active and fit
individual.  She worked out in her home gym five days per week; three days a
week she went to spinning classes, which I understood to be an aggressive
stationary bike workout; she went on runs of approximately five kilometres in
length two or three times a week; and she played the occasional round of golf. 
She was sufficiently fit to hike the Grouse Grind, a notoriously strenuous hike,
six to eight times per year.

[17]        
Ms. Butcher said that her weekends were spent keeping her house
meticulously clean, something which she took great pride in, and she and her
husband hosted or attended regular dinners with friends.

[18]        
Ms. Butcher’s life after the car accident has been very different. 
She says that now she does not do much housework and does not do heavy
housework at all.  She has attempted to do so but this has had adverse
consequences.  The most she is able to accomplish is to get her work lunch
ready the evening before, to cut vegetables for meals, and to do some light
dusting.  She testified that she avoids doing anything that will aggravate her
symptoms for the upcoming work week.

[19]        
Ms. Butcher said that she does not do any recreational activities
and has not even tried.  She said that one time she tried to bake cookies but
this attempt ended in tears, and because of that she has felt unable to attempt
even modest recreational activities.

[20]        
Ms. Butcher is very dedicated to her work.  Prior to the car
accident she started work at 6:00 or 6:30 a.m. and left at 4:30 p.m.; now she
is the first person in the office to leave work at the end of the day.  She is
worried that her reduced ability to work long hours will adversely affect her
reputation as a diligent and valuable worker.  Prior to the accident she hoped
to work to age 70 or 71, but now she is not sure if she will be able to.  Ms. Butcher
said "I worry a lot about my reputation.  I hope with the 2015 election,
as long as I have a good reputation, I would think I would be hired by another MP",
should for any reason her employment with the current MP not continue.

[21]        
Although it has been suggested to Ms. Butcher that she might wish
to cut back her hours or work part-time, she said she would have to pass on her
extensive knowledge to another employee and this would then render it
unnecessary for her to be employed in the office on a full-time basis when the
time came for her to resume full-time work.

[22]        
In cross-examination, Ms. Butcher agreed that her symptoms were at
their worst in 2010 and that there had been some improvements and fluctuations
since then.  She agreed that she has had good days and bad days; “good days”
being when she has minimal pain, although it is always present.  She agreed
that by summer 2012 she no longer had neck pain every day, but it would come
and go.  Her neck pain would be present perhaps three days per week and then
there would be a clear stretch of days with minimal neck pain.  She agreed that
by this point there were more pain-free days than days with neck pain.  In describing
her neck pain, Ms. Butcher said that her neck pain begins to manifest
itself around 2:00 p.m. in the afternoon while she is at work.

[23]        
As for her back pain, she agreed with her discovery evidence that this
fluctuates; she might not feel back pain for a week but then feel it for the
next two days, and perhaps not again for ten days, then perhaps for five days
in a row.  She said that as of 2012 she was having more good days than bad days
with her back.

[24]        
Ms. Butcher acknowledged that she exercises in her home gym every
second day.  She also agreed that it is a combination of fatigue and fear of
aggravation that prevents her from doing more.

[25]        
Ms. Butcher acknowledged that she and her husband travel three
times per year, to Mexico at Christmas and to Las Vegas twice per year, and
that she travels to Ottawa once per year.  She has not missed any vacations
since the car accident.

[26]        
As to household duties, Ms. Butcher acknowledged in
cross-examination that she had returned to light household tasks by mid-2012,
these being such things as clearing the dinner table, loading and unloading the
dishwasher, dusting, putting groceries away and putting laundry away.  She said,
however, that she continued to have difficulty with the heavier tasks.  As to
cooking, she said that her husband does most of it, although she acknowledged
her discovery evidence that she mostly did the cooking prior to the car
accident and "that really hasn’t changed a lot other than I get to pick
and choose more the days".  On discovery she said that on the good days
she is fine to cook but her husband does the cooking on the bad days.

B.             
Ross Butcher

[27]        
Mr. Butcher is the plaintiff’s husband.  He is a 69 year old
retired truck driver.  He has been married to the plaintiff for 31 years.

[28]        
The couple moved to Mission in 2005 having formerly lived in a townhouse
complex in Maple Ridge.  The Mission home is a 3,500 square foot home with six
bedrooms, four bathrooms and a home gym.

[29]        
Prior to the accident, Mr. Butcher did the outside work at the
Mission home although Ms. Butcher did the flower pots.  Inside the home he
would vacuum once in a while, but the plaintiff did everything else.  Mr. Butcher
described Ms. Butcher as an excellent cook, and it was Ms. Butcher
who did all the grocery shopping.  Mr. Butcher confirmed that his wife was
very fit and active prior to the accident.

[30]        
Mr. Butcher said that now after the accident he does all the
household chores and the plaintiff does none of them.  In particular, he does
all of the cooking and in doing so cooks a lot of pre-packaged meals.  He
testified that this results in higher grocery bills.

[31]        
Mr. Butcher said that Ms. Butcher has gone from "happy go
lucky" in her personality to "downtrodden".

[32]        
In cross-examination, Mr. Butcher agreed that his wife has improved
since the accident and now she is in less pain and is able to do more things.

C.             
Other Witnesses

[33]        
A number of friends, acquaintances or co-workers also gave evidence at
trial.  These were as follows:

1.              
Allison Jack

[34]        
Ms. Jack works at the Mission Chamber of Commerce, where on Fridays
Ms. Butcher does constituents’ passport applications in the upstairs boardroom. 
Ms. Jack said that she always helps Ms. Butcher carry her two bags up
the stairs, having started this because she could see Ms. Butcher was in a
lot of pain.

2.              
Darlene Thiessen

[35]        
Ms. Thiessen is a secretary in a lawyer’s office located in the
premises of the Mission Chamber of Commerce.  Her evidence was to a similar
effect insofar as Ms. Thiessen helps Ms. Butcher carry her bags
downstairs and out to her car.

3.              
Melissa Kramer

[36]        
Ms. Kramer was a constituency assistant in 2009 to 2012 and was a
co-worker of the plaintiff during that time.  She said that Ms. Butcher
complained of being tired and Ms. Kramer was concerned about how much pain
Ms. Butcher was in.  Ms. Kramer said that she did not witness "a
whole lot of recovery" with Ms. Butcher.

4.              
Mike Murray

[37]        
Mr. Murray is the executive assistant for the local MP, having
commenced that position in January 2012.  He described Ms. Butcher’s role
as being the front desk person and so she is the first contact for constituents
both by phone and in person.  Mr. Murray has seen that Ms. Butcher
has issues physically and noted that Ms. Butcher may at times be more
irritable by the end of the day.  He has suggested to her, or she has asked him,
to go home early, and this has taken place about once a week for the last six
months.  Mr. Murray said that Ms. Butcher missed one day of work a
few months prior.

[38]        
Mr. Murray said that Ms. Butcher was a hardworking and
dedicated individual, was an asset to the MP and that, if asked, he would
provide a positive reference for her.

5.              
Brian McKay

[39]        
Mr. McKay is a friend and former neighbour of the Butchers when
they lived at the Maple Ridge townhouse complex.  He described the plaintiff as
a great hostess who was very physically active prior to the accident.  He said
that after the car accident it was Mr. Butcher who did most of the cooking
and that Ms. Butcher is “not her bubbly self anymore".

6.              
Leon Broughton

[40]        
Mr. Broughton is another friend and former neighbour at the
townhouse complex.  He said that prior to the car accident Ms. Butcher was
"a very vibrant, enthusiastic lady, fun to be around", but now she is
“not her effervescent self".  He said that she tires easily and goes to
bed early.  He said that now she listens more than engages, and she appears to
be in discomfort.

II.              
Medical Evidence

A.             
Dr. Bernhard Toews

[41]        
Dr. Toews is the plaintiff’s family physician.  He provided a
report dated July 16, 2012.  In his report he noted that on his initial
examination on January 31, 2011, he noted a loss of cervical lordosis or normal
curvature of the neck.  He also noted a limitation of rotation and lateral
flexion of her neck.  Her low back movement was also restricted.  His initial
diagnosis was that of neck sprain and a back sprain and, in addition, he
diagnosed nerve root depression of the cervical spine.

[42]        
On examination on February 15, 2011 Ms. Butcher told Dr. Toews
that she had less pain at night and that Tylenol No. 3 and Flexeril were
helping with this.  The examination by Dr. Toews showed painful neck
flexion and pain with neck rotation, such as would be the case with shoulder
checking while driving.  His examination of her back showed good back flexion. 
His impression on that visit was Ms. Butcher was continuing to improve. 
On a further examination on March 15, 2011 Dr. Toews noted that Ms. Butcher’s
complaints had altered very little.

[43]        
On June 13, 2011 Dr. Toews noted that there had been significant
improvement in her symptoms and in his findings.  She had less neck pain and
back pain and no further headaches.  She also reported to Dr. Toews that
she had had eight weeks of work without sitting and this had helped.  She was
taking Flexeril and Tylenol No. 3 on occasion.  The examination by Dr. Toews
showed almost full range of neck motion with persistent pain on the left
lateral rotation of the neck.  There was some straightening of the back on
flexion but otherwise movement of the back was normal.

[44]        
On August 31, 2011 Ms. Butcher reported low back pain that was
present when she would sit up, get up, walk or climb stairs and that it was
worse at night.  Her sleep was now poor and described as being interrupted by
pain despite a new mattress.  She reported she was unable to drive long
distances.  Dr. Toews noted on examination that she had very limited range
of back motion.

[45]        
Dr. Toews saw Ms. Butcher again on October 6, 2011 where Ms. Butcher
reported she was waking every three hours at night with pain.  His examination
showed loss of lordosis and decreased flexion of the spine and limited lateral
rotation of the spine "as it was almost a year ago".

[46]        
Dr. Toews next saw her on February 27, 2012, at which time Ms. Butcher
appeared to be improving somewhat.  She reported that she was having a bad day
every three weeks and her description of pain had not changed.  His examination
showed a tender right trapezius, full range of the shoulder, with pain on right
lateral flexion and rotation of the neck.

[47]        
On Ms. Butcher’s last visit to the office (prior to preparation of
his report) of May 14, 2012, she reported recurrence of severe pain in her neck
and an inability to work on that day.  Dr. Toews found that her neck
motion was normal and that she only had a tender right trapezius muscle.  Her
back motion was normal although she had some loss of normal curvature of the
back when she would flex.

[48]        
Dr. Toews opined that flare-ups were “quite likely” given the
nature of her clerical duties and stress of her job.  He noted that her long
drives to work had been somewhat stressful and that the long periods of time
spent sitting at a desk were also likely to cause flare-ups.  He said "I
remain optimistic that she will continue to improve gradually and slowly be
able to strengthen her muscles and return to the level of fitness that she was
at prior to her accident".  Dr. Toews said it was difficult to give a
prognosis for a full functional and pain-free recovery.  He said "given
the fact that she has been disabled for this length of time which is now almost
two years, I’m not as optimistic as I would have been a year ago that she will
make a full recovery".

[49]        
In his testimony at trial, Dr. Toews said that he has been Ms. Butcher’s
family doctor since 2002, and that prior to the car accident he saw her perhaps
once a year or once every two years.

[50]        
Dr. Toews acknowledged that he did not notice any loss of lordosis
or spinal curvature in his later examinations of Ms. Butcher.  He
acknowledged as well that on February 15 he remarked that his impression was
that she continues to improve, with less pain at night, and that she had
significant improvement as of June 13, 2011, meaning less neck and back pain,
no headaches and improved range of motion.  In commenting on the prognosis that
was stated in his report to the effect that he remained optimistic that she
will continue to improve gradually, Dr. Toews said that "there was a
bit of hopefulness in that statement".

B.             
Dr. Tony Giantomaso

[51]        
Dr. Giantomaso is a specialist in physical medicine and
rehabilitation.  He saw Ms. Butcher on May 10, 2013.

[52]        
In his report of May 2013, Dr. Giantomaso said as follows:

Currently Ms. Butcher relates her maximal area of
discomfort is in the neck and upper back region.  She relates constant pain
described as directly around the cervicothoracic junction, at the lower neck
and upper back region.  She notes that the right side is more symptomatic than
the left side.  The symptoms usually occur after a long day at work or after
driving.  She finds that her pain decreases with the use of anti-inflammatories
as well as Tylenol with codeine.

On average her pain is approximately 4/10 in intensity, but
can vary between 2/10 and 8/10, depending on her day’s schedule and activity
level.

Ms. Butcher relates that sitting increases pain after
less than one hour to a significant degree in the upper neck and upper back
region.

Sports and exercise are minimal. She notes that she avoids
any high level physical activities as these general[ly] increase her pain
symptoms which can affect her sleep and work tolerance.

Currently, she avoids lifting, pushing and pulling if at all
possible.

Ms. Butcher continues to be independent of her basic and
instrumental activities of daily living such as cooking, cleaning, but notes
that repetitive flexion and extension maneuvers and bimanual maneuvers
including laundry, vacuuming, wiping, sweeping and cooking can increase her
pain levels.

Sleep is poor and she often wakes
up at night due to night pain or wakes up in the morning due to stiffness.

[53]        
Dr. Giantomaso concluded that the mechanism of the car accident in
all probability is reasonably associated with Ms. Butcher’s post-traumatic
cervical and thoracic pain.  He noted that Ms. Butcher initially also
experienced low back pain but that those symptoms improved over time.  He said
"overall, Ms. Butcher is coping well with her pain issues and continues
to be employed on a full time basis".

[54]        
Dr. Giantomaso made several recommendations, including a strong
recommendation that Ms. Butcher participate in an active rehabilitation
program, noting that she was fairly deconditioned.

[55]        
As to prognosis, Dr. Giantomaso said the following:

It is now over two years post-trauma. The vast majority of
improvement through natural history and rehabilitation would have been expected
to occur in the first six months to one year post-trauma. In my opinion
Ms. Butcher has met maximal medical improvement and will experience
chronic pain permanently in the future.

By following my recommendations,
Ms. Butcher may experience decreased pain and increased function in the
future. However this should be considered part of a long term pain management
strategy and it is not curative.

[56]        
In testimony at trial Dr. Giantomaso said that further passive treatments
were not called for.  While these might provide short-term relief for flare-ups,
they will not improve the overall outcome.

[57]        
Dr. Giantomaso said that the literature suggests that in cases of
chronic pain there is very little recovery after one or two years.  He said an
active rehabilitation program will help with functioning by enabling the
plaintiff to cope or manage better.  He said that this was not curative but it
is to increase her function by decreasing pain.  He said that success rates
generally are still relatively low.

C.             
Michelle Silver

[58]        
Michelle Silver is a registered massage therapist.  She provided 19
treatments to Ms. Butcher between February 2011 and October 2012.

[59]        
Ms. Silver found objective signs suggestive of inflammation,
hypertonicity (overly tense muscles) and scar tissue.  Over time she noted
improvement in the plaintiff’s range of motion — in cross-examination she
agreed that she had described this as “significant improvement” — and she said
that the plaintiff is only experiencing “slight pain” with activities of daily
living.

D.             
Ryan Clifton

[60]        
Mr. Clifton is a kinesiologist.  He saw Ms. Butcher commencing
July 2013.  He gave her exercises designed to improve her posture, which has
improved since her initial attendance.  He also did some range of motion tests,
which he noted were done in a very guarded way by Ms. Butcher and which
disclosed restricted range.  Mr. Clifton said that his “game plan” is to
continue to improve Ms. Butcher’s posture and to improve her capacity for
activities of daily living.  He said that this may take three to six more
months with attendances by Ms. Butcher once every two weeks.  For the
following six to 12 months he recommended that she see him once per month.

E.             
Dr. John Arthur

[61]        
Dr. Arthur is an orthopaedic surgeon who examined Ms. Butcher
on April 25, 2013 at the request of the defence.  He prepared a report dated
May 2, 2013.

[62]        
Dr. Arthur reported what Ms. Butcher told him about her
complaints.  She told him that her neck pain comes and goes and generally
involves the posterior and left side of her neck and it can radiate to the
upper back and shoulder area.  It gives her trouble when driving.  She has
trouble with her neck at nighttime and generally sleeps about four hours and
then has trouble.  She generally uses medication prior to going to sleep.  She
also uses a heating pad.  Ms. Butcher told him that at times the pain in
her neck can go to the mid and low back area.

[63]        
Dr. Arthur found a slight restriction of motion of her cervical
spine "but no true objective finding".  He said that the complaints
are best described as soft tissue in nature and are reasonably related to the
motor vehicle accident in question.  He noted that Ms. Butcher is back to
work and knows to get up and stretch frequently, so he saw no reason why she
should not be able to continue in this job for the foreseeable future.

[64]        
Dr. Arthur is of the opinion that Ms. Butcher did not require
any further passive treatment, but that she would benefit from an active
rehabilitation program, preferably with a kinesiologist.  He said the following:

Reassurance and direction towards
appropriate exercise activity, in my opinion, are all that are required. This
woman’s prognosis, in my opinion is good but, as mentioned above, I think
further attention in an active rehabilitation program will allow her further
improvement.

[65]        
In testimony at trial, Dr. Arthur did not agree that there was no
likelihood of improvement based on the fact that there had been no substantive
improvement after two years, noting that Ms. Butcher had not been
maximally treated thus far.  He said that a good percentage of patients will
improve or get back to satisfactory function although not perhaps to 100%.

F.             
Jeff Padvaiskas

[66]        
Mr. Padvaiskas is an occupational therapist who performed a
functional capacity evaluation in July 2013 and prepared a report dated July
10, 2013.

[67]        
Mr. Padvaiskas noted that Ms. Butcher demonstrated reaching
asymmetries during repetitive movements.  He said Ms. Butcher had a
sitting tolerance of approximately 15 to 30 minutes in work-intensive postures
and requires regular breaks to move and/or stretch.  He said her suitability
for repeated sitting, based on demonstrated performance and self-reports, currently
requires medications.

[68]        
Mr. Padvaiskas concluded as follows in his report:

In terms of overall work endurance Ms. Butcher is able
to perform full time work consistent to the abilities and limitations outlined
in the body of this report. In general she is best suited to limited strength
jobs with flexibility in movement. She requires regular breaks from sitting and
she is not suited to sustained stooping position.

On the basis of work capacity
testing and Ms. Butcher’s self reports, she is capable of full time work
with accommodations but is not fully suited to this work. In particular, she
demonstrates limitations with the full time sitting requirement in work
intensive positions. She continues to be dependent upon daily medication use to
promote durability for work and requires implementation of strategies to take
regular breaks from sitting intensive tasks. Further, despite accommodations on
the job and use of medications she continues to report regular time loss from
work. Additional issues relate to driving to and from work which contribute to
symptomatic aggravations.

[69]        
Mr. Padvaiskas made various recommendations for future care,
including housekeeping services, a new bed and pillow, physiotherapy, a
rehabilitation program and medication.

[70]        
In cross-examination, Mr. Padvaiskas said he expected that there
would be some improvement in Ms. Butcher’s symptoms as a result of an active
rehabilitation program.

III.            
Position of the Parties

A.             
Plaintiff

[71]        
The plaintiff submits that the symptoms from her injuries are chronic
and permanent.  She suggests that the range of non-pecuniary damages is from
$60,000 to $80,000, with the appropriate assessment towards the higher end of
that range.

[72]        
The plaintiff also submits that her necessary absences from work
jeopardize her future employment prospects, as her employment depends in part
on the good graces of her present employer and prospective employers may not
wish to accommodate her in the same manner.  She suggests an award for loss of
future earning capacity equipment to two years’ earnings, or $120,000.

[73]        
Relying on Davidson v. Patten, 2004 ABQB 681, the plaintiff
submits that she ought to be awarded an additional sum of $20,000 as general
damages to compensate her for the loss of satisfaction and pride that comes
with maintaining a meticulously kept house.

[74]        
The plaintiff further submits that an award should be made for future
costs for an active rehabilitation program, a fitness membership, physiotherapy,
an ergonomic assessment and work station equipment, homemaking services,
sleeping bolsters and pillows and ongoing medication, all of which total
approximately $102,000 on a present value basis.

[75]        
Special damages are agreed at $3,347.54.

B.             
Defendant

[76]        
The defendant emphasizes the evidence suggesting improvement of the
plaintiff’s condition and her ability to perform modest housekeeping duties. 
The defendant submits that the plaintiff’s condition will improve with treatment
by way of an active rehabilitation program.  Based on this characterization,
the defendant submits that the range for non-pecuniary damages is between
$30,000 and $40,000, conceding that an assessment in this case would be
appropriately towards the higher end of that range.

[77]        
As to loss of future earning capacity, the defendant notes that the
plaintiff has not suffered any past wage loss in the past three years and so
there is no real and substantial possibility of a future event leading to an
income loss.

[78]        
As to cost of future care, the defendant concedes that there ought to be
an award to enable the plaintiff to pursue and complete an active
rehabilitation program, and that there should be an amount awarded for the
future costs of medication, but the plaintiff has not shown a basis for a
stand-alone award of damages for housekeeping.  The defendant submitted that in
all an award of $3,000 to $5,000 would be appropriate for future costs.

IV.           
Discussion

[79]        
As noted earlier, it is common ground that the plaintiff has suffered
substantial pain and suffering as a result of injuries sustained in the subject
accident.  The differences lie in the characterization of the severity of those
injuries, the degree to which they have or have not improved, and the prognosis
for the future.

[80]        
These matters turn in part on the assessment of the plaintiff’s
evidence.

[81]        
I would say at the outset that the plaintiff is an honest individual who
is obviously hard-working, dedicated and perhaps even driven in terms of her
work.  I did conclude that she had a tendency to recall her various
difficulties with much greater clarity than she did those times where there was
some improvement of her symptoms.  This perhaps is understandable, but
nonetheless it left me with the impression that things are at least somewhat
better than the plaintiff believes or perhaps fears that they are.  They are,
however, not as good as the defendant would have me believe.

[82]        
The weight of the evidence, including the medical evidence, indicates
that the plaintiff’s physical difficulties have had a significant effect on
both her work life and personal life for the past three years and that while
the completion of an active rehabilitation program may alleviate this somewhat,
it will not be a cure.

[83]        
In this regard, I find Dr. Giantomaso’s opinion and prognosis to be
closer to the mark than that of Dr. Arthur, who I conclude left a more
positive impression of the plaintiff’s situation than the evidence warranted. 
For example, Dr. Arthur said that he saw no reason why Ms. Butcher could
not continue her employment in the foreseeable future.  While it is true that Ms. Butcher
has continued her employment with no loss of income, Dr. Arthur’s opinion
does not reflect the reality that Ms. Butcher accomplishes this with the
help of an accommodating employer, who lets her go home early if her physical
problems become too much for her, with the help of medication, and at a cost,
on many days at least, of excessive fatigue at the end of the day, which limits
what she is able to do in her non-work time.

[84]        
I find that Ms. Butcher is capable of light exercise activity in
her home gym and of some lighter household tasks.  It is clear that she has
been incapable of achieving anything close to the former level of physical
exercise and activity that she had prior to the car accident.  I accept that
the heavier household tasks have fallen to be done by her husband, but
nonetheless she is capable of a modest level of activity in and around the home,
including some of the lighter household tasks and some cooking.

[85]        
As for work, as I have said she fulfills her duties by moving around and
taking breaks, through the use of medication, by being very cautious physically,
and with the benefit of an accommodating employer and assistance from
supportive co-workers and others.  Her neck and back pain fluctuate in
intensity and she has good days and bad days.  There are stretches of good
days, perhaps a week or ten days long, where she has just minimal pain and
stretches of bad days that last perhaps three to five days.  By the end of a
work day she is often excessively fatigued.  She has difficulties with sleep. 
Several witnesses spoke of Ms. Butcher not being her former effervescent
and social self, as she was pre-accident.  I accept all these things as proven.

A.             
Non-pecuniary Damages

[86]        
Both parties cited cases that they submitted were comparable for the
assessment of non-pecuniary damages.  Both parties also cited the well-known
case of Stapley v. Hejslet, 2006 BCCA 34, where at paras. 45 and 46,
the Court of Appeal reiterated the purpose of an award of non-pecuniary damages
and set out those factors that may be considered in making such an award.  I
have considered those factors in this case.

[87]        
The plaintiff cited the following cases: Rhodes v. Biggar, 2010
BCSC 762; MacKenzie v. Rogalasky, 2011 BCSC 54; Combs v. Bergen,
2013 BCSC 321; Kaleta v. MacDougall, 2011 BCSC 1259; and Smith v.
Moshrefzadeh, 2012 BCSC 1458.  The cases cited by the defendant included Olianka
v. Spagnol, 2011 BCSC 1013; Laroche v. MacPhail, 2007 BCSC 1451; Crichton
v. McNaughton, 2008 BCSC 556; and Jackman v. All Season Labour Supplies
Ltd., 2006 BCSC 2053.  Each of these cases, while helpful in their way for
comparison purposes, have features that distinguish them from the case at bar. 
It may come as no surprise that I have concluded that the defence cases
generally involved injuries or effects less serious than those suffered by Ms. Butcher,
and those cited by Ms. Butcher involved injuries, pain and suffering that
were more serious than those shown in the presence case.

[88]        
Having regard to all of the factors and circumstances I consider that
$60,000 is an appropriate sum to award by way of non-pecuniary damages.

B.             
Non-Pecuniary Damages for Impaired Homemaking Capacity

[89]        
Relying on Davidson v. Patten, supra, the plaintiff seeks a
specific award of non-pecuniary damages for "the loss of satisfaction and
pride that comes with maintaining a meticulously kept house".

[90]        
I am not persuaded that it is proper to carve out a component or
components of loss of enjoyment of life and to make specific awards of
non-pecuniary damages for any of them.  A general award of non-pecuniary
damages is intended to compensate for all aspects of pain and suffering and
loss of enjoyment of life, and the award I have made is intended to encompass
all of those aspects in this case.

C.             
Loss of Future Earning Capacity

[91]        
As noted earlier, I conclude that Ms. Butcher continues to be
dependent on daily medication, some accommodations from her employer and other
strategies to get herself through many of her work days, and that often she is
excessively fatigued when she gets home from work.

[92]        
The defence submits that the fact that the plaintiff did not lose any
income prior to trial as a result of the accident is a significant factor that
must be considered in assessing the loss of earning capacity, citing Yount
v. Prospect Electric Ltd. et al, 2005 BCSC 322.  I agree with this
proposition, so far as it goes, but this does not mean that just because there
is no past income loss there can be no loss of future earning capacity.

[93]        
Although Dr. Giantomaso and Dr. Arthur noted that Ms. Butcher
was continuing to work, comments that the defendant relied upon in his submissions,
it is important to bear in mind the context in which she manages to accomplish
this.  So while Dr. Giantomaso said that the plaintiff is still working he
also noted that "she is having difficulties in all functional
realms".  I consider that Mr. Padvaiskas, the occupational therapist,
summarized accurately the plaintiff’s work situation when he said:

On the basis of work capacity
testing and Ms. Butcher’s self reports, she is capable of full time work with
accommodations but is not fully suited to this work. In particular, she
demonstrates limitations with the full time sitting requirement in work
intensive positions. She continues to be dependent upon daily medication use to
promote durability for work and requires implementation of strategies to take
regular breaks from sitting intensive tasks.

[94]        
Ms. Butcher testified that her pre-accident plan was to work until
age 70 or 71, but now she is concerned that she may not be physically able to
carry on that long.  While not doubting the sincerity or honesty of Ms. Butcher’s
prognostication or concerns, it is difficult to give substantive effect to it
because the contingencies are so significant.  I do conclude, however, that
there is a real and substantial possibility that Ms. Butcher may
have to reduce her work hours somewhat to accord with her available stamina,
should the long-term active rehabilitation program recommended by the
physicians not result in physical improvement.

[95]        
Another significant factor in Ms. Butcher’s case is the element of
uncertainty with her long-term employment, given that it is dependent on the
political fortunes of her employer.  She may find that she has to seek new
employment, and while in 2005 she found similar employment in a very short time
when her MLA employer failed to be re-elected, she has at least some
limitations now that might make her less attractive as a prospective employee.

[96]        
The factors to be considered in cases involving lost capacity for
earning future income or a reduction in earning capacity are well established
and originate in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).  In
that case the Court said the proper inquiry is whether:

1.  The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.  The
plaintiff is less marketable or attractive as an employee to potential employers;

3.  The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.  The
plaintiff is less valuable to himself as a person capable of earning income in
a competitive labour market.

[97]        
I conclude that the plaintiff meets each of those criteria.  Having
considered the evidence as a whole, I conclude that the plaintiff has shown
that there is a real and substantial possibility of a loss of income in future.

[98]        
I turn now to the question of quantification of damages for loss of
future earning capacity.

[99]        
In considering this issue several considerations predominate.  These
are:

a)  to date,
the plaintiff has not lost any income from work by reason of the accident;

b)  she is dedicated,
indeed somewhat driven, in terms of work.  Also, she has been motivated to
persevere through physical discomfort because she has concerns about job
security should she cut back her work hours;

c)  despite her
difficulties, her supervisor found Ms. Butcher to be a hard-working and
dedicated individual and an asset to the MP and that if asked he would provide
a positive reference for her;

d)  there is
the prospect that the successful completion of an active rehabilitation program
will alleviate some of her symptoms and thereby make work more tolerable in the
long term.  Equally, there is a prospect that the program will not alleviate
her symptoms.

[100]     A
mathematical approach to the quantification of this loss is appropriate in some
cases, but not in this one.  Instead the quantification is in the nature of an
assessment.

[101]     I conclude
that an appropriate award under this head of damages is $30,000, a sum that
reflects a half-year’s earnings, and which I conclude adequately reflects the
various considerations in this matter.

D.             
Future Care Costs

[102]     The
plaintiff seeks an award for the cost of future care, specifically for (1)
ongoing assistance from a kinesiologist for an active rehabilitation program;
(2) an ongoing fitness centre membership; (3) physiotherapy; (4) an ergonomic
assessment of her workplace; (5) homemaking services; (6) equipment, being
pillows, bolsters and special pillow tops to aid with sleep, as well as a
sit-stand work station; and (7) medication.

[103]     I will
deal with all but the last item as follows:

(a)      Kinesiology: the defendant
agreed the evidence showed the need for assistance through active
rehabilitation.  Mr. Clifton, the kinesiologist, recommended seeing
Ms. Butcher once every two weeks for three to six months, then once a
month after that, for six months, as she is “weaned off”.  Based on that
frequency, the visits would be 19 in number, that is, 13 visits over the first
six months, plus six more once-monthly visits.  At $50 per visit, the cost of
these attendances would total $850.  As these kinesiology sessions have taken place
at a local recreation centre with attendant admission costs, I would add $20 a
visit for 19 visits ($380), for a total award of $1,230 for this future cost.

(b)      Fitness centre membership:
Given that Ms. Butcher has a home gym I conclude that the need for this
was not made out in the evidence.

(c)      Physiotherapy: Neither Dr. Giantomaso
nor Dr. Arthur recommended further passive therapy, except perhaps to deal
with occasional flare-ups of pain.  For the latter only, I award the sum of
$500.00, a sum conceded by the defendant.

(d)      Ergonomic assessment and work
station: The evidence is that Ms. Butcher made adjustments to her work
station following recommendations from her physiotherapist.  I am not persuaded
that a full ergonomic assessment of her work area was shown to be reasonably
necessary since Dr. Giantomaso merely said "it may be
helpful" (my emphasis).  I come to the same conclusion concerning a
possible work station purchase.

(e)      Homemaking services: The
evidence does not show a basis for an award for the cost of housekeeping
services, since the housework is being done, with Ms. Butcher doing light
housework and Mr. Butcher doing the heavy work.  I have reflected the
additional housekeeping difficulties of Ms. Butcher in the award of
non-pecuniary damages that I have made.

(f)       Sleep equipment: Ms. Butcher
has tried a new bed and pillow but found these unhelpful.  I see no basis for
an award for this type of expense.

[104]     As for
future medication costs, Ms. Butcher claims future prescription medication
costs of about $3,000 per year plus non-prescription medication costs of about
$300 a year, with the present value of the lifetime cost totalling about
$55,000.  The evidence shows that she has spent $2,172 on prescription
medications over the past three years, or roughly $700 a year, so her claim
based on $3,000 a year is clearly excessive.

[105]     Ms. Butcher
did not track her past non-prescription medication costs, and the claim for the
annual expense for this medication was based on the consumption she reported to
Mr. Padvaiskas, the occupational therapist, who did a cost of future care
analysis.

[106]     The
assessment of this future loss does not lend itself to ready arithmetic or
present-value calculations.  First of all, it is likely that Ms. Butcher’s
medication costs will lessen over time because (a) active rehabilitation will
help to alleviate some symptoms, and (b) Dr. Giantomaso testified that
Ms. Butcher’s prescription medications should not be used on a chronic
basis.

[107]     Doing the
best I can on the evidence before me, I consider that the sum of $4,000 is a
proper sum for this future cost.  Very generally, this is based on a reduction
in the use of prescription medication over the next few years and a continuing
but gradually reducing use of non-prescription medication.

[108]     The total
award under the general heading of cost of future care is therefore $5,730.

E.             
Special Damages

[109]     Special
damages are awarded in the agreed amount of $3,347.54.

V.             
Summary

[110]     Ms. Butcher
is awarded damages as follows:

[111]    
Those conclude my reasons.

“Blok
J.”