IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140129

Docket: M130163

Registry:
New Westminster

Between:

Isabella Morena

Plaintiff

And

Manminder S.
Dhillon,
Coast Capital Savings Credit Union

H & R Stone Slinger
Ltd.

Defendants

Before: The Honourable Madam Justice
Arnold-Bailey

Reasons for Judgment

Introduction

[1]            
Isabella Morena (“the plaintiff”) was involved in a motor-vehicle
accident on September 29, 2008 (“the accident”) in relation to which she is
claiming damages for personal injuries. Liability is admitted on behalf of the
defendants and therefore, the issues before the Court relate to the assessment
of damages.

[2]            
Just prior to the accident the plaintiff was driving her 2001 GMC Jimmy
on Highway 1 near Willingdon Avenue in Burnaby, BC when she came to a full
stop due to traffic congestion. She was wearing her seat belt and her two-year
old daughter was buckled into a child’s car seat in the back seat immediately
behind her. While stopped, the plaintiff’s vehicle was hit suddenly from behind
by a Mazda, which, in turn, had been hit by a dump truck owned by the
defendant, H & R Stone Slinger Ltd. and driven by their employee, the
defendant, Manminder S. Dhillon (“the defendants”). The plaintiff became completely
overwrought and traumatized at the scene of the accident, fearing initially
that her daughter had been killed or injured. Subsequently, the plaintiff
developed significant physical and psychological symptoms arising from the
accident that have not resolved over time.

[3]            
Medical evidence on behalf of the plaintiff claims to establish that,
caused by the accident, she suffers from: a severe and chronic major depressive
disorder; chronic Post-Traumatic Stress Disorder (“PTSD”); a chronic pain
disorder; chronic myofascial pain syndrome in her neck, shoulders and upper
back; chronic mechanical low back pain; chronic sleep disruption; heart
palpations; problems with memory, concentration and focus; and fatigue.

[4]            
Evidence from the plaintiff’s husband, Mike Morena, and a long-time
female friend, Connie diCicco (who is pursuing work as a Special Education
Assistant (“SEA”), which was also a goal of the plaintiff’s), confirms the
negative impact that the accident and the injuries sustained by the plaintiff
have had on her mental and physical condition, as well as her ability to
function at her pre-accident level. Specifically, she claims that the injuries
she sustained in the accident and what has flowed from them have had a profoundly
negative impact on her life in terms of energy, drive, ability to interact
socially with friends and family, to parent her children and fully participate
in their lives, and to contribute to family finances by returning to the
workforce as she had planned once her youngest child reached school age.

[5]            
The defendants’ position is that the objective medical evidence shows
that the plaintiff’s physical injuries have improved since the accident. Her
self-reporting also confirms improvement. Her ongoing difficulties appear to be
in the realm of her “apparent struggles” with depression, PTSD and chronic pain
syndrome. Counsel for the defendants submits that the Court must carefully
scrutinize the evidence of the plaintiff and evidence supporting her claims
under the various heads of damages in light of inconsistencies in the evidence,
her prior treatment for headaches due to anxiety, and her “perfectionist”
personality. In particular, he submits that the plaintiff’s claim for loss of
capacity is not supported by the applicable law or the contradictory evidence
adduced by the plaintiff regarding her work history. In the event that the
Court finds that the plaintiff would have pursued a career as a SEA but for the
accident, the defendants submit that the substantial award of damages the
plaintiff seeks for future wage loss is still not supportable.

The Issues to be Decided

[6]            
The plaintiff seeks damage awards for: non-pecuniary damages for pain
and suffering and loss of enjoyment of life; an amount for past loss of income;
an amount for future loss of earning capacity; an amount for cost of future
care; and special damages.

[7]            
The defendants’ position is that, with the exception of special damages,
the claims made by the plaintiff are too high considering the evidence or not
supported by the evidence and the law.

[8]            
The issue is what quantum of damages ought to be awarded under each head
of damages based on the evidence.

The Evidence

[9]            
The evidence at trial is comprised almost solely by evidence tendered on
behalf of the plaintiff, which was thoroughly tested by thoughtful and skilled
cross-examination by counsel for the defendants. The defendants did not present
any evidence except the expert medical report of Dr. Richard Loomer, an
orthopedic surgeon, which was admitted by consent. The plaintiff did not seek
to cross-examine Dr. Loomer on the findings he set out in his report.

The Plaintiff, Isabella Morena

[10]        
The plaintiff, who was 47 years old at the time of trial, is a married
woman with two children. She described a happy childhood. She was born in Italy
and moved to Canada with her parents and three older siblings when she was 18
months old. Her family settled in East Vancouver and she grew up in a close-knit
Italian family. Both her parents are still alive and she described them as
“amazing people.” She graduated from Vancouver Technical High School in 1983
when she was 18 years old. She said she loved school and was a C+/B student.

[11]        
In 1984 the plaintiff completed a one year program in hairdressing at
Vancouver Vocational Institute and was kept on for several years at the salon
where she had done her practicum. She and a colleague planned to open their own
salon but that plan was abandoned when the colleague became pregnant and no
longer wished to participate.

[12]        
At age 17 the plaintiff met “the love of her life”, Mike Morena, when
they were both working at the PNE in the summer. They married in October, 1988.

[13]        
The plaintiff decided to try employment other than hairdressing and
became employed at West Coast Fasteners in 1989. She was initially employed
there in a secretarial capacity, but rose to have considerable managerial responsibilities
in the business, to the point that she was in charge of accounts payable, data
entry, and opening and closing the business. When the owners were away she was
in charge of operating the business. She continued to be employed there
full-time until 2002 and was earning $50,000 annually when she left to spend
more time at home looking after their first child.

[14]        
The plaintiff and her husband were keen to have a family. They were
unable to conceive and they engaged in three costly cycles of In Vitro Fertilization
(“IVF”) that proved unsuccessful. They chose to adopt two children, a son in
2000 and a daughter in 2005. Their son was adopted from Romania and the
plaintiff said that the process brought her and her husband even closer
together. Their daughter was adopted from the United States and they were
chosen by the child’s natural mother and were present for her birth. They
brought her with them back to Vancouver immediately after her birth. Both
children were healthy babies and are apparently doing well. The cost of the IVF
attempts and the adoptions combined totalled approximately $125,000. The
daughter, who was two years old, was with her mother, the plaintiff, when the
accident occurred.

[15]        
The plaintiff testified that although they had good daycare available
for their son he would cry when she left for work. In March 2001 she returned
to work after a three month parental leave and worked until December 2002 when
she and her husband decided that they would “tighten their belts” and she would
stay at home. The plaintiff said that she made additional income that she did
not declare as income from cutting hair from her home. She estimated that
initially she was making up to $10,000 per year and then in time leading up to
the accident she did less of this, such that her income was approximately
$5,000 to $6,000 a year.

[16]        
Then in 2005 when their daughter arrived they decided that the plaintiff
would not return to work until their daughter started in school in full-time
kindergarten, which occurred in September 2010. By that time the plaintiff had
sustained the physical and psychological injuries caused by the accident. Her
plan had been to pursue employment within the school system, either as a
teacher’s assistant or a SEA. She considered this to be her best option as it
would give her a work schedule consistent with that of her school-aged children
and give the family the additional income they needed. She explained that she
needed to return to work because raising a family was expensive, neither she
nor her husband had pensions, her husband’s annual salary was only $65,000,
they wanted to assist their children with higher education and they still had a
small mortgage on their home.

[17]        
In relation to her health the plaintiff testified that in the two years
prior to the accident she had been in excellent health. Her mood had been great
and she had no back, neck or shoulder complaints.

[18]        
Previously, she said she had a history of tension/anxiety headaches in
her late 20s and early 30s, which started around the time of their infertility
and adoption of the children. She was referred to a specialist and prescribed
Paxil, which she took for about a year. She developed a rash from the Paxil and
her family doctor switched her to Trazodone that she took for a time and then had
ceased taking about 18 months prior to the accident. She said that after
stopping Trazodone she successfully controlled the occasional headache with
exercise and diet. When asked in cross-examination about what caused her
anxiety headaches, the plaintiff said that she was a very high strung, “go, go,
go” type of person who liked to get things done. She was not the type to spend
time relaxing. She admitted that external stress could have been a factor,
particularly when she was going through the IVF treatments and the adoptions.

[19]        
Prior to the accident the plaintiff did not have sleep problems but would
typically wake up at 6 a.m. “ready to go.” She indicated that in her 20s she
had become allergic to many foods, including shell fish, citrus fruits and
strawberries, but other than these allergies she had no health, emotional or
sleep issues in the two years prior to the accident. She was very physically
active and did many physical activities with her children, including playing
soccer, bike riding, and going to play groups with other mothers and children.
She was the vice president of one such play group and was socially active in
that regard. The plaintiff also said that she enjoyed going out with her
husband for dinner and hosting large family dinners and dinner parties. For
such parties she did all the planning, cooking and cleaning. She went to the
gym regularly to keep fit. She and her husband enjoyed going out with each
other for long walks and to movies. She described herself as a meticulous
housekeeper, something in which she took great pride. She did all the inside
housework, including cleaning floors, windows and vacuuming. She enjoyed taking
the children wherever they needed to go and belonged to a book club that met
once a month. She tackled large jobs with energy and described herself as “a
work horse,” up for any task.

[20]        
On the day of the accident, September 29, 2008, the plaintiff was
returning from a birthday lunch for her mother-in-law and had her two-year old
daughter in her Jimmy SUV sitting directly behind her, in the rear seat in a
five point restraint child’s car seat. The plaintiff had stopped in traffic
backed up on Highway 1 as she was proceeding east on her way back to Coquitlam.
Without any warning her vehicle was hit by the vehicle behind it, which in turn
had been hit by a dump truck that had failed to stop.

[21]        
The plaintiff described the accident as the worst day of her life and
how she felt her daughter hit the back of the driver’s seat twice. As she
described what happened to the Court she became very obviously, genuinely and
deeply upset and tearful, as she did a number of other times in her testimony
despite her best efforts to remain composed. The plaintiff described not being
able to see her daughter but hearing her screaming and crying, and not knowing
what had happened to her. She did not know if her daughter was bleeding. She
became hysterical to the point that she could not unlock her own door to get
out of the vehicle, and instead locked herself into the vehicle. She said she
was screaming, “Help my baby, help my baby.” A person came and helped her to
focus and unlock her door. This person helped her and her daughter to the side
of the road. She was unable to call her husband herself on her cell phone because
she was so upset and shaken, and the same person assisted her to use her cell
phone to call Mr. Morena, who came to the scene.

[22]        
The plaintiff described the force of the collision as severe and said when
she looked at her vehicle and how it had been hit she thought her daughter
could have been killed, but for the fact that her vehicle was higher than the
one that hit her, which appeared to have gone under her vehicle as opposed to
directly into it.

[23]        
The plaintiff said that after the accident, although she was very upset,
she did not feel injured. After the paramedics checked her and her daughter out
at the scene her husband drove her vehicle home with her daughter in it and she
drove his truck because she did not feel able to drive her own vehicle and her
daughter. She understood after the fact that the child’s car seat had been
damaged in the collision and that her vehicle should not have been driven from
the scene. Her daughter complained of a sore head but she calmed down and
settled in bed that night. It was then that the plaintiff started to experience
significant pain in her lower back, head, upper back, neck, between her
shoulder blades and to experience the sensation of pins and needles in her
feet. She recalled the night after the accident was horrible. She went to bed
and her husband gave her Advil and Tylenol every four hours for the pain. She
spent time reliving the accident, worrying about her daughter, and tossed and
turned unable to sleep due to the pain she was experiencing. The next day she
went to see her family doctor, Dr. Salvino, who prescribed Percocet for
the pain.

[24]        
Over the next several weeks the plaintiff returned to see Dr. Salvino.
She continued to experience pain in her low, mid and upper back, neck,
headaches, and pain in her arms and legs. She said she was bedridden for the
first three to four weeks. She said that as of October 7, 2008 when she saw Dr. Salvino,
of her injuries, her lower back was the worst. She went off the Percocet
because she was a “zombie” on it and could not care at all for her daughter. She
was taking Advil and Tylenol for pain and Dr. Salvino prescribed Dilaudid
and recommended she take laxatives to deal with the side effects from the pain medications.
Her husband, who had recently left his job with Phelps Coin Laundry, was at
home and looked after the children and the household. He took off several
additional weeks to help at home before returning to Phelps, having decided not
to pursue work in the real estate field.

[25]        
The plaintiff said that she tried her best to get active again but her
recovery was slow and limited. She and her husband hired her mother to come and
help with the house and the children. Her mother helped out from October 2008
until September 2009, initially coming basically every day for the first five
months and then less frequently as the plaintiff was able to resume some
lighter inside household chores. Her husband did childcare and household chores
after work and on weekends. They paid her mother for her time at $10 per hour
for a total of $5,800 because she was on a fixed income and it was a
significant effort for her.

[26]        
The plaintiff testified that by the time of her appointment with Dr. Salvino
on October 21, 2008 (about three weeks after the accident), she had started to
feel depressed and badly about not being able to do anything. She told him that
she could not look after her children, felt like a failure and was in pain
every day. For the balance of 2008 the plaintiff tried to be more active. She
went to the gym and for walks but found that little helped to reduce her pain.
At Christmas 2008 she was experiencing pain in her lower back, neck and between
her shoulder blades. She felt exhausted and was unable to do any of the usual
family Christmas activities that had been part of her family’s tradition. She
was saddened by the fact that her family missed doing these things because of
her injuries.

[27]        
The plaintiff testified that she attended physiotherapy as recommended
by Dr. Salvino from October 15, 2008 until February 28, 2009, with the
focus being on her lower back only because the pain there overshadowed pain in
her neck. She said that neither her back nor neck pain has improved to an
appreciable degree over time, although she did experience periodic, short term
improvement. She did not find physiotherapy to be helpful and opted at the end
of February 2009 to end it and to continue with exercising on her own, which
she did.

[28]        
By February 2009 the plaintiff described her mood as “not good.” By the
summer of 2009, in addition to her ongoing physical pain, she felt depressed,
empty, hollow and like a “wreck.” She spent the summer mostly staying at home
and doing relatively little, which was in stark comparison to how she spent
summers prior to the accident being very physically active with her family and
friends.

[29]        
By late 2009 the plaintiff said she was feeling terrible and was very
discouraged that she never got better, but rather just kept feeling worse. She
did not experience any improvement in her physical symptoms. Dr. Salvino
tried her on various anti-depressant medications that she did not find to be
helpful and found to have negative side effects. Her prior use of Paxil had
caused itchiness. The Remeron started in January 2009 caused her to gain weight
and the Effexor started in November 2009 caused her to develop hives. Celexa,
tried next, had other negative side effects. She was also started on Trazodone
in December 2009 to help her sleep with some positive effect. She was started
on Topamax in October 2012. The plaintiff testified that none of these
medications seem to have helped her with her continuing feelings of sadness,
emptiness and failure.

[30]        
The plaintiff underwent a second course of physiotherapy from March to
June 2010. She said that she received little benefit from this physiotherapy.
Her low back pain remained and the pain in her neck seemed to get worse. By the
end of 2010 the plaintiff said that she was at such an emotional low point that
she could not deal with things on her own and felt she needed help. She agreed
in cross-examination that she had regained some of her ability to function, but
said that she was pushing herself because she had children to look after.

[31]        
At the suggestion of her counsel she attended for a medical legal
assessment with the psychologist, Dr. Owen James, who she then started to
see for ongoing counselling throughout 2011 and 2012. She testified that on
some occasions she found counselling with Dr. James to be helpful and on
other occasions not. However, she continues to see Dr. James and had an
appointment to see him the week after the trial. Although Dr. James is
semi-retired and not always available, the plaintiff said that she felt
comfortable with him and it had not been suggested that she needed more
frequent psychotherapy sessions with a psychologist. She said she had not asked
Dr. Salvino about seeing a psychiatrist as it was her impression of
psychiatry that she would likely be heavily medicated and she needed to be able
to function for her children. She said that she would not lose her children due
to her depression “even if it killed” her.

[32]        
The plaintiff testified that since the accident her level of energy had
dramatically decreased. She said at the time of trial she had no energy and felt
like staying in bed all the time. But for her children she would not get out of
bed in the morning. She also said that she feels alone, ugly, that she is
letting everyone down, guilty and like she has nothing to offer. Her weight
increased about 15 lbs. after the accident due in part to the side effects of
medications and also to inactivity. Now her weight has dropped to four or five
pounds below her normal weight of 119 lbs. She said that she has lost her
appetite and forgets to eat. She continues to try to go to the gym to exercise
and has only been a few times in recent months because she can’t muster the
will and energy to go. She has no libido and no interest in sexual relations
with her husband, which saddens her.

[33]        
The plaintiff said that her husband has been exceptionally kind and
supportive since the accident. She feels like a horrible wife because she
cannot give him what he deserves emotionally or sexually. She worries that she
will lose him because he will tire of “babysitting” her and living with the
burden that she has become. Before the accident the plaintiff said that the two
of them shared everything and did all kinds of activities together. They were
close prior to having a family and the process of adopting their children
brought them even closer. Whereas prior to the accident she used to enjoy
dinner parties and going out with her husband and friends, now she does not
feel like going out, although sometimes her husband makes her go. She said she
recognizes that it is important to get out and so she tries.

[34]        
In terms of her children, the plaintiff testified that she cries a lot since
the accident and tries to hide this from her children. She said her children
ask for more time with her and she tries her best, but then she can’t follow through
and breaks promises she has made to them. Her children are her joy and the best
things in her life, and she feels that by being unable to function properly she
has let them down and her “dream has crashed.”

[35]        
In terms of her social relationships, the plaintiff said that prior to
the accident she had an active social life with friends and relatives. She has
distanced herself socially from friends and now just has one close friend. She
explained that she feels embarrassed by her depression and she feels distant
from people when she tries to put on a happy face.

[36]        
She described her typical day as getting up and making breakfast for the
children and helping them get ready for school. She drops them off, does some
errands, and then gets herself ready for her one-hour shift as a lunch hour
supervisor. She does her hour of work, picks up the children from school, makes
dinner and then says “I sleep and sleep and sleep,” as compared to before the accident
when she described herself as a “go getter” who never wanted to sleep and would
have been doing some activity with her children.

[37]        
The plaintiff testified that she has suffered from sleep problems since
the accident, including nightmares two to three times per week in which she
loses her daughter when someone steals her. She wakes up from sleep and does
not feel refreshed and sometimes her eyes are swollen from crying in her sleep.
She wakes up fearful that something bad will happen to her daughter.

[38]        
In terms of pain, the plaintiff continues to experience pain from
injuries sustained in the accident, she testified that the pain in her low back
and neck is unrelenting and she wakes up with pain every day. At times she said
the pain is excruciating. She has placed herself on a regime of Extra Strength
Tylenol alternating with Advil every four hours, which she takes upon waking in
the morning. On bad days she takes Tylenol 3s and sometimes muscle relaxants as
well. In addition, the plaintiff takes Trazodone for sleep, Topamax for
depression and a beta blocker for the heart palpations she recently developed.
She also takes laxatives to deal with side effects from the other medications.

[39]        
In terms of her physical injuries the plaintiff said that overall her
lower back pain has reached a plateau and her neck pain has worsened. She
thought that she might have aggravated her lower back at the gym in April 2011,
which prompted her to see a chiropractor named Dr. Klein, but she was
unable to say what she did that might have increased her discomfort. She
started seeing Dr. Klein once a week and then approximately every three
weeks. She said the treatments he provides give her some temporary relief from
the pain in her lower back and she will continue them in the future. She was
asked in cross-examination about a note in Dr. Klein’s records that she
had returned to running in 2012. She said that she had been on a treadmill and
walking five to six minutes and then running for one minute, which was
significantly less than before the accident when she could run 50 to 60
minutes.

[40]        
In February 2012 the plaintiff attended an occupational therapist on a
referral from the Insurance Corporation of British Columbia. She discussed the
pain she continued to feel in her lower back and neck and aspects of her life
before and after the accident. The therapist provided her with some relaxation
tapes and recommended that she spend more time with her children. The plaintiff
said she did not find the tapes helpful because the tapes said that if she did
not think about the pain she would not experience it, and that did not work for
her. She could not do that because she did have the pain and said “If I could
check out of my brain I would.”

[41]        
In the month prior to trial the plaintiff said that she still
experiences a lot of pain. She experiences pain in her neck, upper back and
shoulders, especially between her shoulder blades, where she gets a “shooting
pain.” Her neck is a bigger concern for her now than her lower back, which bothers
her every day if she tries to do things, whereas if she doesn’t do anything her
lower back doesn’t bother her that much. However, she tries to be active. She
describes the pain still as excruciating and when she wakes up in the morning
she takes her regime of Tylenol and Advil and sometimes muscle relaxants. Then
if she needs to she takes Tylenol 3s. She limits her Tylenol consumption to six
per day and finds she gets better relief if she alternates them with Advil.

[42]        
In court the plaintiff estimated her neck pain to be an “eight or nine”
on a pain scale of one to ten, and she said with medications on a good day she
can get it to a “five” but never below that. In terms of lower back pain she
always has some pain, she has some good days but more bad days, and she
estimated it too to be an “eight or nine”. She said with medications and “not
doing anything” she can get it down to “a three or a four.” She said that she
does not often get headaches now but if she does it is “just a regular
headache.”

[43]        
In cross-examination when it was put to the plaintiff that her mental
state had improved, she said that in the three to four month period after the
accident she got physically slightly better but her depression got worse. When
asked if her mood improved in early 2012, the plaintiff said it may have
appeared she had improved because she was trying to move past her depression.
She said she would do her hair, put on makeup and put on a happy face, but in
fact she was not feeling any better. When she was asked about experiencing a
“relapse”, the plaintiff said that she had never gotten better and after a
while she just got tired of pretending. In relation to recommendations that she
be more active she agreed that it was better to be more active. She testified
that she wanted to help herself and was trying to do so as hard as she could.
She appreciated that passive treatments were not as effective but was doing her
best. She also said that she could not fight “that demon” inside of her but she
was trying very hard to do so. When she was asked about other stressors in her
life the plaintiff said that her depression was her stress. She agreed that a
messy house drove her crazy but said that even if everything was good with her
children and her husband she still felt empty and like she had nothing.

[44]        
In direct examination the plaintiff also complained that her ability to
focus on a conversation is not good and her short term memory had been
negatively affected. She finds it hard to focus on activities like doing
homework or a craft activity with her daughter. She recently forgot the title
of the book she needed to order for her bookclub during the time it took her to
log on and buy it.

[45]        
In terms of driving the plaintiff said that she only drives when she has
to and she is always shoulder checking. She lets trucks go by and if she sees a
truck coming up behind her she leaves an escape route for herself. At times she
pulls over to let trucks go by.

[46]        
In direct examination when the plaintiff was asked what bothered her
most in relation to her injuries from the accident she responded “This isn’t
Isabella. I hate her. I’m just a weak person. I’m a shell. I want Isabella
back.” She clearly suffers from great self-loathing and a profound sense of
personal loss.

[47]        
With regards to her part-time employment as a lunch time supervisor for
School District 43, the plaintiff said that she started this work in October
2011 and got a permanent part-time position as a lunch time supervisor in
September 2012. She earns $18.11 plus 16% in lieu of benefits. She prefers to
work with children in kindergarten to grade three as she finds it too exhausting
to supervise older children. She also explained that SEAs, the type of employment
she aspired to before the accident, earn $23.80 per hour plus benefits. The
program to become an accredited SEA at Capilano College can be completed in two
years going part-time by attending two evenings a week and Saturdays. She has
the prerequisites and said there is a high demand for SEAs. Had she become a
SEA she said that retirement age now for someone in that position is age 67.

[48]        
The plaintiff said that she had made no plans to start the SEA training
before the accident because her daughter was just two-years old. Her plan was
to start her training for the SEA work when her daughter entered grade school.
Since the accident the plaintiff said that she had not made efforts to pursue
becoming a SEA because she could not manage it mentally, although she was aware
of job postings in her school district for SEA positions for 30 hours per week
as of March 2013. In terms of other employment possibilities, the plaintiff said
that she could have pursued returning to work for West Coast Fasteners without
upgrading.

[49]        
When it was put to the plaintiff in cross-examination that she had made
a lifestyle choice since the accident not to pursue work outside the home and
be at home to raise the children, she said that the reason she was not working
once her children were in school as she had planned was because of her health
problems.

[50]        
The plaintiff was asked about the amount of time experts retained by the
defendants had spent with her talking to her and examining her. She said that
her appointment with Dr. Loomer was 20 minutes in length and of that, 13
minutes were spent in interviewing her and seven minutes in examining her. Her
appointment with the defendants’ psychiatric expert, Dr. Axler (from whom
no report is in evidence) took place on December 13, 2012. She said it took two
hours and they spoke extensively. She said she opened up to him and felt
comfortable in doing so. Her appointment with Dr. Koo, called on her
behalf, was about three hours in total.

[51]        
I found the plaintiff to be a forthright and compelling witness in
direct and cross-examination. It is very clear from her testimony that she was
an active, healthy person prior to the accident and has become seriously
debilitated by the injuries sustained in the accident and the chronic pain,
PTSD and the severe depression that have followed them. She answered questions
in a way that did not exaggerate her problems. For example, she indicated that
her lower back did not hurt as much as it had if she did not try to do
anything. To the contrary, she was clear about what she felt and how she
managed the pain she continued to experience. Furthermore, she did not claim that
she continued to have serious headaches or that the pain in her back and neck
could not be reduced by medication. She recognized some improvement in her
lower back and acknowledged that she could function in the more limited way she
described in the context of her typical day. She sought and found employment to
the degree she felt she could manage. She also acknowledged a temporary
reduction in pain by visiting the chiropractor. It is clear that she found it extremely
painful to testify about certain aspects of her life that had been negatively
affected by the accident, which other persons less injured would have found
considerably less upsetting.

[52]        
It is notable that the plaintiff did not minimize the things in her life
since the accident that have brought her some pleasure or joy like family trips
or walking the Sun Run, although it was evident that the family holidays she
enjoyed the most were those where extended family members were there to help
with her children. She likes her work and prefers to supervise younger
children. Her one-hour-a-day job is significant because, were she not motivated
to work and just planning to capitalize on the injuries she sustained in the
accident, why would she bother?

[53]        
I also note that the plaintiff has sought medical treatment and followed
the advice she has been given. She has been compliant and tried what has been
suggested to her to improve her symptoms or alleviate her pain and depression. However
overall, her formerly positive outlook has been completely overtaken by
depression. This continues to be the case despite mounting independent evidence
that she is struggling with severe and disabling physical and psychological
injuries arising from the accident. The trauma of the accident and the ensuing
depression has been very difficult for her. Despite this, she has persevered in
terms of trying to improve her condition, which is consistent with her
previously upbeat and “go getter” personality. I accept her evidence about her
plan to return to work once her daughter was in school. Prior to having
children she held regular full-time employment for approximately 12 years with
West Coast Fasteners. A return to work to contribute to family finances is
consistent with her past work history and her pre-accident personality.

[54]        
Every aspect of her previously active, positive and healthy life has
been profoundly negatively affected by the injuries she sustained and the
ensuing PTSD, chronic pain syndrome and the serious and lasting depression that
has engulfed her. She views herself as “a weak person, a shell”. There is no
doubt that the plaintiff was a healthy, high functioning person prior to the
accident and has descended in a steep decline to a very painful and dark place
psychologically where she remains at present. She sees her depression as
relentless and appears to have lost hope that she will recover.

The Plaintiff’s Husband, Mike Morena

[55]        
In his testimony, Mr. Morena, the plaintiff’s husband, confirmed
his wife’s robust health, high energy and good spirits prior to the accident. She
was a happy person and people gravitated to her. She was very sociable and
initiated contact with other people. She had a very high level of energy “for a
little person”, liked to do things and was a very hard worker. She did not have
problems with her mood or emotions. She did not suffer from sleep problems or
depression, and she did not have back or neck problems. She did the inside
house cleaning and chores and helped him with outside chores. She took pride in
her appearance, both in terms of staying fit by going to the gym and in terms
of how she looked in terms of her clothes, hair and makeup.

[56]        
Mr. Morena said that he and his wife did all kinds of outdoor
activities together, initially when it was the two of them and their son; and
then when they turned into “a four person unit” in 2005 with adoption of their
daughter. He too, said that the adoption of their children had been a very
positive experience for them, so positive in fact that they had been asked to
speak to other prospective parents and do seminars on adoption.

[57]        
In terms of finances, Mr. Morena indicated that they led a frugal
lifestyle on his annual base salary of $65,000, in addition to which he
sometimes gets bonuses (in 2012 he received an additional $20,000). He
recognized that they needed to provide for their children’s post-secondary
education and their own later years. In terms of his wife’s past ability to
work outside the home, Mr. Morena said that she had never had any
difficulty maintaining full-time employment prior to their agreement that she
be at home while the children were young. He also confirmed the need for his
wife to return to work when both their children were in school and her plans to
become a SEA.

[58]        
As an example of the things he used to do with his wife prior to the
accident he talked about how they worked together on home renovations and
improvements; and gave the examples of the two of them painting rooms, ripping
up carpet and plumbing a bathroom in their home.

[59]        
He also testified about how hysterical and terrified his wife was
immediately after the accident. He recalled that she was inconsolable when he
went to the scene and their daughter was complaining that her head hurt. Then
he said in the first few weeks afterwards his wife was unable to do anything
other than “lie around.” She was in excruciating pain in her neck and back. Her
motions were slow and her mobility was very limited. He took off some extra
time from work and then they had to hire his mother-in-law at $10 per hour to
help out with the household chores that prior to the accident his wife would
have done.

[60]        
Mr. Morena still does many of the household chores previously done
by the plaintiff. She does light housework but she cannot do vacuuming or wash
floors so he does those chores now. He does the grocery shopping, makes the
children’s lunches and tries to keep the kitchen clean. He researched the cost
of housekeeping services and found it ranged from $20 to $25 per hour.

[61]        
Mr. Morena said that his wife’s one hour a day job combined with
regular day-to-day things is the most that she can handle physically and
emotionally. He does not think that she could handle classes at night and on
Saturdays as it would be too much for her and as much as she has said she wants
to do it, he does not think she has the focus to do so. On cross-examination, Mr. Morena’s
estimate of the amount of money his wife made annually prior to the accident
cutting hair, $300 to $400, is significantly less than hers, and he said she
just cut hair sporadically for some extra cash. He said now she cuts his hair
and the children’s and occasionally someone else’s but that typically involves
her to stand for only 15 to 20 minutes.

[62]        
He has had to take on many of the more physically active aspects of
parenting that she previously enjoyed. He said that pain is “the number one
injury” for his wife and the physical injuries to her neck and back are still
there. He said they have not improved despite all the things she has done to
try to make them better. When he wakes up he hears her say that her back is
killing her, and that is how she starts her day. He has observed that she is
not able to stand at the soccer field to watch their son’s games or sit to
watch baseball. She also can’t play sports with her children as she did before
the accident. She is short-tempered with their son in a way she was not before.
His wife complains of restless nights and sleeping poorly. She tells him of her
nightmares in which she is terrified that their daughter will be harmed. She is
also more “clingy” with their daughter.

[63]        
Mr. Morena testified that since the accident his wife has become
socially isolated and falls to him to arrange social outings and events. They
no longer go to the concerts and sporting events together that they did before.
His intimate relationship with his wife has also suffered as she is generally
no longer interested in sexual relations. He has noticed their conversations have
changed. They no longer enjoy the level of intellectual intimacy they had prior
to the accident because his wife’s ability to focus has diminished and she
drifts off during their conversations. According to him she seems to “zone out”
at times and to lose her focus. Prior to the accident they both participated
equally in making family decisions, whereas since the accident he makes the
important family decisions on his own. He said he used to rely on her as a
sounding board and as someone he could trust. He misses that aspect of their
relationship very much. When he has a tough day or wants to share his worries
or concerns with her he finds that she is unable to offer him the support that
she did prior to the accident.

[64]        
Mr. Morena agreed on cross-examination that they had walked the Sun
Run together in 2012 as part of a team from his daughter’s school. He said they
knew it would be hard for his wife but she really wanted to support the cause.
The holidays they have had in 2010 and 2011, a cruise and staying in a resort
respectively, were to take a break from the rigours of the day-to-day routine,
to create some memories for their kids and to try to tell themselves “it is
ok.” They were times to connect with family and neither the cruise nor staying
in a resort was physically taxing.

[65]        
Mr. Morena said his wife was a happy person prior to the accident,
whereas now she is sad and unhappy with herself. He often sees her sitting on
the sofa crying when they are watching television. Since the accident he sees
that she has sunk into a deep depression. Her moods are often low. He observes
her self-confidence to be very low. She lacks the motivation to try new things
that she had prior to the accident and now she just hopes things won’t go wrong.
He said that they have been married for 25 years and he has known her for 30
years. It pains him that she worries he will leave her for someone else and he
encourages her to discuss her fears if it helps. He said their son and
daughter, in Grades 7 and 2 respectively, are doing well.

[66]        
Mr. Morena impressed the Court as a very thoughtful and truthful
witness. I accept his evidence as set out above. His testimony confirmed all
significant aspects of the plaintiff’s testimony. It is clear that Mr. Morena
remains devoted to his wife and his family and that his life too has changed
significantly for the worse since his wife’s accident.

The Plaintiff’s Friend, Connie diCicco

[67]        
Ms. diCicco was 44 years old at the time of the trial. She is a
friend of the plaintiff’s and has known her since 2004. Ms. diCicco has
two school-aged children and a background in accounting. She started working
doing noon hour supervision on a casual basis for School District 43 as a
springboard to becoming a SEA. She provided the Court with details as to what
training and experience is required to become a certified SEA and said that she
had recently seen SEA positions posted. Her plan is to apply to Capilano
College and to attend an upcoming orientation. The advice she has been given is
that she ought to keep her noon hour supervision position and amass sufficient
hours to become a permanent employee and a member of the union. Then, upon
becoming a SEA she is likely to obtain a permanent full-time position at a
school.

[68]        
Ms. diCicco first met the plaintiff in the fall of 2004 when she
joined a mother and child play group in which the plaintiff was active. Ms. diCicco
said that the plaintiff approached her and initiated the friendship, suggesting
that they plan to take their children to the park. Ms. diCicco said that
the plaintiff was the initiator and planner of the activities they did
together. She considered the plaintiff to be one of her closest friends.
Between September 2004 and September 2008 they did many activities together, taking
their children places like Splashdown Park, Science World, tobogganing and for
swimming lessons. They involved their husbands and both families went to
Disneyland together in 2006. Ms. diCicco said that the plaintiff planned
it all and all she did was pay their family’s share of the bill. She said that
without the plaintiff’s involvement she doubted that she would have done so
many things with her children as she was a procrastinator, whereas the
plaintiff initiated things. Ms. diCicco described the plaintiff during
that time as open, high energy and outgoing. Ms. diCicco also recalled
that the plaintiff tackled many things around her house that Ms. diCicco
would not have considered doing. She recalled how positive the plaintiff was
about pursuing the adoption of their second child. She did not recall the
plaintiff having problems with her moods, sleeping, headaches, anxiety or
depression prior to the accident.

[69]        
Ms. diCicco recalled that the plaintiff called her the day after
the accident and told her about it. She sounded somber and shaken up. When Ms. diCicco
saw her a few days later, the plaintiff looked stiff and sore, and was not
moving her neck as one would expect. As time passed Ms. diCicco noticed
that the plaintiff’s energy level was low, she did not participate as she did
before and she would complain that her neck and back were sore. She did not
move as much and complained about her sleep.

[70]        
Ms. diCicco said they did not see as much of each other as they had
before the accident and they did not do as many activities together. Their
trips to the gym became fewer and fewer. The plaintiff complained that the
medication she was on was not working and she could not sleep. She had become
very short with her children and would jump at them or not let them finish
something. Ms. diCicco also noticed that the plaintiff became “weepy” and
would cry over things. She mentioned that she was going to therapy because of
emotional strain from the accident. Ms. diCicco said that she did not
notice an improvement in the plaintiff’s condition even with therapy. She
recalled that she and the plaintiff had a discussion about the her condition in
September 2012 when Ms. diCicco was talking about going into the SEA program
and asked the plaintiff to join her. The plaintiff told her that she would love
to but could not. Ms. diCicco said that she felt the plaintiff was
depressed, in a dark place and self-loathing. Ms. diCicco said that the
plaintiff is not happy and that the light she had in her eyes before is gone. Ms. diCicco
said that she knew the plaintiff did not get this way overnight and she has asked
herself why had she not realized the extent of the plaintiff’s depression
earlier. Ms. diCicco said that in August 2011 her own husband had a heart
attack and she thought that the plaintiff was keeping things from her. She
noted that when they both work their lunch hour supervision shifts she has to
force the plaintiff to come out afterwards for coffee. The plaintiff will put
her off and then when she does come she is tired and lacks energy after an
hour. Ms. diCicco’s view was that the plaintiff was not physically able to
work for more than an hour at present.

[71]        
Ms. diCicco was not cross-examined on her evidence. I accept her
evidence. She impressed the Court as a balanced and fair-minded witness who had
a good recollection of how the plaintiff acted before and since the accident. Ms. diCicco’s
evidence about becoming a SEA is important because it confirms that the
plaintiff had a similar plan and even with a good friend to embark upon the
program with, she found herself unable to consider doing it.

Dr. Luigi A. Salvino

[72]        
Dr. Salvino, the plaintiff’s long-time family doctor, was found to
be an expert in family medicine qualified to provide opinion evidence regarding
the diagnosis, treatment and prognosis of physical and psychological injuries
caused by a motor-vehicle accident. In the course of his practice he indicated
that he treats patients suffering from depression, anxiety, chronic pain and
PTSD diagnosed by others. The plaintiff has been his patient since 1989. He
indicated that he had previously treated the plaintiff for tension headaches
associated with anxiety prior to the accident but had last done so in January
2007, 18 months prior to the accident.

[73]        
Dr. Salvino saw the plaintiff in relation to injuries sustained in the
accident (September 29, 2008) one day later and has treated her since. He wrote
two reports and answered questions about his treatment of the plaintiff.
Initially, as may be seen by his first report, dated May 13, 2010, Dr. Salvino
was optimistic that the plaintiff would make a full recovery.

[74]        
In his May 13, 2010 report, Dr. Salvino noted:

MEDICATIONS PRESCRIBED:

Tylenol Extra Strength, Tylenol #3, Advil, Remeron, Percocet,
Dilaudid, Robaxacet, Tiaprofenic Acid, Effexor, Imovane, Celexa, Trazodone,
laxatives, benadryl, reactine, claritin, atarax.

[…]

MANUAL THERAPY:

Physiotherapy commenced in October 2008 and Mrs. Morena
was able to rapidly push herself to a more active role, including a home stretching
and walking program, rapidly despite pain. In January 2009, gym exercises as
well as treadmill and elliptical walker were added. Physiotherapy ended in
March 2009 and Mrs. Morena continues with her exercise routine on her own.

SIGNIFICANT PAST:

Mrs. Morena had been on Paxil in the
past to help control tension headaches and not for depression.

CONSULTANTS: none

INJURIES SUSTAINED, RECOVERY COURSE AND
PROGNOSIS:

1. Headache 
2. Strained Entire Spine
3. Bilateral Leg Contusions
4. Depression/Anxiety

Mrs. Morena was seen in my office one
day following her MVA. She was found to be in significant pain and narcotic
analgesia (Percocet) was prescribed. Due to side effects, Dilaudid was then
prescribed in addition to a muscle-relaxant. As a home-maker and mother of two
children (8 and 2 years old), being unable to care for the household
contributed to her anxiety and subsequently to her pain. From the onset of her
injuries Mrs. Morena was an active participant in her recovery pursuing
physiotherapy and an individual exercise program despite significant pain. Initially,
Mrs. Morena relied heavily on family and friends for homemaking duties,
including child-minding or pick up, cooking, cleaning, and shopping. Mrs. Morena
sometimes found her situation overwhelming, "I can’t do anything … can’t
take care of my kids properly … can’t even pick up my daughter… in pain all
the time…"

In addition to rehabilitative exercises,
medication has also played a role in assisting Mrs. Morena’s recovery.
Ineffectiveness and side effects forced us to try a number of different
medications before suitable ones could be found. Mrs. Morena is still
using Tylenol#3 and Tylenol Extra Strength for analgesia, and no longer
requiring the stronger Percocet. Trazodone is functioning as a sleep aid and
muscle relaxant.

By early 2009, Mrs. Morena was driving,
doing light housework and cooking. Shopping was undertaken with the assistance
of her spouse and other family members. Washing floors and vacuuming was being
done by others. Throughout the last year with exercise and medication progress
has been made. Pain persists and family continues to help with the floors,
carpets and shopping. Mrs. Morena remains active in her day to day life as
well as in a gym. Optimistically, a full recovery can be anticipated by
September 2010.

[Bold in
original removed.]

[75]        
In his second report, dated January 7, 2013, Dr. Salvino indicated
that the plaintiff had not made the recovery he had anticipated. Instead, four
years after the accident, she continued to be plagued by various symptoms that Dr. Salvino
attributed to the accident and he did not expect significant further
improvement:

In this time frame, the only new medication added is
Topiramate. Other medications have been contemplated but Mrs. Morena has a
history of difficulty tolerating a number of medications. In my May 2010 letter
I had fully anticipated a full recovery by Fall 2010. Needless to say, this has
not occurred.

Mrs. Morena’s predominant symptoms are soft tissue and
mood-related. Mrs. Morena remains active in the gym regularly, limited by
pain. Over the year intermittent chiropractor and occupational therapist
intervention have helped the muscular issues. Regular psychotherapist
appointments help address some of the (sic) Mrs. Morena’s mood issues.
Ideally some medication would also help but Mrs. Morena has difficulty
tolerating a fair number of them.

Mrs. Morena in the past suffered from tension headaches
and some anxiety over the last twenty years. Prior to the aforementioned motor
vehicle accident I had prescribed some Paxil for Mrs. Morena in 2005, and
last prescribed Trazodone in 2007, the latter helping with sleep. Mrs. Morena
complains predominantly of depression. In this case I believe that
depressive symptoms and anxiety are post-motor vehicle accident related in one
who may be prone to anxiety, as an adjustment type reaction due to her
disability following the motor vehicle accident. Mrs. Morena is currently
suffering from Chronic Pain Syndrome (CPS).

The condition of Chronic Pain Syndrome includes a mood
component and longstanding pain. Pain treatment involves psychological support,
analgesics as required, mood stabilizing medication, and encouraging activity.
All of these modalities are being addressed. Other than perhaps some medication
changes I don’t know what else can be offered. At four year post-motor vehicle
accident I don’t expect further significant gains in Mrs. Morena’s
recovery.

[Bold in original removed and
underlining added.]

[76]        
Dr. Salvino was cross-examined about his treatment of the plaintiff
in 2007 as referred to in a clinical note dated January 9, 2007 and a reference
to a prescription for Trazodone. He was asked about having prescribed Paxil in
2005 and indicated that Paxil can be used for anxiety, and given that the
plaintiff suffered from tension headaches one could include anxiety. He also
agreed that being tense as a personality type can contribute to being in a
worse condition after a traumatic event. However, I note that Dr. Salvino
also clearly distinguishes between anxiety and depression generally, the
plaintiff’s earlier treatment for tension headaches with some anxiety and the
depression symptoms and anxiety that he associates with her involvement in the
accident “as an adjustment type reaction.” As of October 21, 2008 he noted that
she was depressed. He also testified about the four different classes of
antidepressant medication that he has tried with the plaintiff to alleviate her
depression, to date unsuccessfully. While a fifth class of anti-depressant
remains untried, Dr. Salvino did not believe it would help. He fairly
admitted that while he had gone through most options there were still some
options available and there was a “possibility” that the plaintiff could show
some improvement.

[77]        
On re-examination, Dr. Salvino was asked about his response that he
could not pinpoint a date when the plaintiff had moved into a full-blown
depression. However, he acknowledged his clinical note from January 21, 2009
when he first started treating her for depression. He said even as late as May
2010 he thought she was depressed but not clinically so, but recognized that Dr. James
diagnosed her as clinically depressed in November 2010.

[78]        
Dr. Salvino impressed the Court as a very calm, careful and
thoughtful witness, who no doubt brings these same attributes to his medical
practice. He seemed to have considerable experience in treating those injured
in motor-vehicle accidents and suffering from depression. He also seemed to
have a good knowledge of anti-depressant medications that he brought to bear on
the plaintiff’s condition. I accept his opinion that, having tried the various
forms of treatment and types of medication to alleviate the plaintiff’s
symptoms and improve her condition, that he does not expect “further
significant gains in her recovery.”

Dr. Owen James, the plaintiff’s treating psychologist

[79]        
Dr. Owen James specializes in the assessment
of psychological illnesses, particularly those involving significant
personality factors in their presentation. Dr. James was initially engaged
to assess the plaintiff and then he continued to see her for counselling and
treatment. He spent three hours interviewing her and administering several
tests as part of his assessment. Then he provided counselling and therapy to
her subsequently for a total of 11 hours.

[80]        
In preparing his first report, dated November
22, 2010, Dr. James observed the plaintiff’s gait to be normal and that she
did not exhibit any marked pain-related behaviours. His view was that she
answered all the questions put to her in a forthright manner, did not appear to
be apprehensive and “her emotions were for the most part well regulated.”
Overall, he found her to be “open and co-operative.”

[81]        
In his first report Dr. James reviewed, in
some detail, the plaintiff’s life before the accident. He concluded (at
p. 4) that “…there do not appear to be any personal or family stressors
prior to September 29, 2008, that would account for any psychological sequelae
observed thereafter.” He described her history as “remarkably normal.” However,
post-accident his opinion is as follows:

Based on the above ratings [the DSM-IV
diagnostic criteria for Major Depression], it is likely that Mrs. Morena
would even now, 2 years after her MVA, meet the diagnostic criteria for a Major
Depressive Disorder. The only point of contention centres [sic] around whether
her sleep disruption is caused by a physical injury (pain), or mood. If the
former is considered to be the primary cause, then she would just fail to meet
the diagnostic criteria for Major Depression.

[…]

The second psychological injury suffered by Mrs. Morena
can be described as a ‘Pain Disorder’. Before expanding on this, it is perhaps
worth noting that pain is subjectively experienced, and not simply related to
peripheral pathology. Despite this added complexity and general lack of objective
measurement, research has continually reaffirmed the fact that there is no
reason to dismiss pain reports as having no basis in objective reality, nor to
consider them as reflective of a self-serving bias. There are still some who
hold to the long outdated opinion that physical injury and tissue damage
predict pain experience in a dose-response relationship. It does not; pain is
multiply determined, and includes the effects of stress.

To quantify the impact of Mrs. Morena’s
pain, she was asked to complete the Medical Outcomes Questionnaire (MOQ), and
the McGill Pain Questionnaire. On the MOQ, Mrs. Morena rates her health as
‘good’, but then rates her bodily pain in the month preceding interview as
‘severe’.

[…]

Mrs. Morena’s responses on the McGill
Pain Questionnaire were consistent with the foregoing. She described her pain
as ‘pounding, splitting and exhausting’. When asked to select a descriptor of
her pain at its worst, Mrs. Morena chose ‘excruciating’ (not ‘horrible’ or
‘distressing’). Asked to describe her pain ‘when it is least’, Mrs. Morena
chose the term ‘discomforting’. She also identified a series of
actions/situations which impacted her perceived pain, it increased with
fatigue, noise, intercourse, and weather change.

Mrs. Morena stated that she experiences
headache on a daily basis, and that lower back pain is particularly troublesome.
"For the longest time, I could not pick my daughter up." She also
realizes that she "can’t overdo things" even on apparently good days,
as she will suffer more debilitating pain the following day.

The third psychological injury suffered by Mrs. Morena
can be described as a marked anxiety in relation to driving.

[…]

Not surprisingly, an MVA can lead to fear of
driving or an adjustment in how a person drives. Fear of driving can be placed
on a continuum from driving reluctance to PTSD. There is considerable research
evidence to show that PTSD is common in the aftermath of motor vehicle
accidents, with a conditional prevalence of approximately 15% of total
survivors subsequently meeting criteria for PTSD.

[…]

Put simply, there is voluminous research to
show that PTSD is a difficult diagnosis to make if only because of its overlap
(co-morbidity) with other diagnostic entities. Thus, a "thorough
assessment is critical". Mrs. Morena was first administered the TSQ
during her interview with the writer; this is a 10-item symptom ‘screen’ that
was designed for use with survivors of all types of traumatic stress. The TSQ
has 5 ‘re-experiencing’ items and 5 ‘arousal’ items. Respondents are asked to
endorse those items that they have experienced at least twice in the past week.
Brewin et al. (2002) considered the screen "positive" when at least 6
items were endorsed. Mrs. Morena’s responses [were 8 out of 9 positive.]

[…]

Whilst the above
responses suggest that Mrs. Morena would likely meet DSM-IV diagnostic
criteria for PTSD, to be sure of the diagnosis, she was also administered the
Clinician Administered PTSD Scale for DSM-IV (CAPS), which is the acknowledged
‘Gold Standard’ measure for the syndrome. The CAPS ratings also suggest also
suggest that Mrs. Morena has experienced PTSD in the aftermath of her MVA,
although it also appears that some of her early marked symptoms are now in
remission.

[Footnotes
omitted.]

[82]        
Dr. James’ opinion regarding the plaintiff’s prognosis is as
follows:

In reviewing Dr. Salvino’s
clinical notes, it would appear that there has been some improvement over time in
Mrs. Morena’s mental health. Her depression, PTSD, and pain, all seem to
have improved. Despite this, I believe it is necessary to view her prognosis
with some degree of appropriate caution. This is necessary because of the
considerable evidence showing, for example, that depression is highly resistant
to treatment, and renders those who have experienced an episode at risk of
relapse. […] Similarly, those exhibiting
ongoing symptoms of PTSD; if not treated to full remission, they also are at
significant risk of relapse or reactivation. It is exceedingly difficult to
make any prediction in regard to Mrs. Morena’s ongoing pain as it is not
only influenced by her physical injuries, but is also linked to her mood. I
would have to defer to experts in pain management on this issue. Given this
prognosis, there is some considerable likelihood that Mrs. Morena will
likely continue to experience ongoing limitations in her daily activities,
including work. The full extent of these limitations are [sic] beyond the scope
of my expertise.

[Footnotes
omitted.]

[83]        
Dr. James made the following comments about
the recovery time for a person suffering from major depression:

There currently
are no markers or diagnostic tests to help clinicians determine when a patient
will recover from an episode of major depression. Although it is known that the
median length of a major depressive episode is approximately 20 weeks, the
duration of illness is highly variable from one patient to another, and for any
individual patient, the duration of illness varies considerably from one
recurrent episode to the next.
One should also bear in mind that a significant number of people who experience
depression are ‘treatment resistant’. For such individuals, the probability of
recovery within 10 years is about 40%. Unfortunately, the same lack of a good
research data base on predictors of recovery from PTSD also exists.

[Footnotes
omitted.]

[84]        
In his second report, almost a year later (dated
November 7, 2011), Dr. James indicated that he had conducted six treatment
sessions with the plaintiff since his earlier report. In this report he
commented:

By way of recap […] As a result of the
accident, Mrs. Morena sustained three psychological injuries; major
depression, a pain disorder, and posttraumatic stress disorder. The writer
recommended that she receive on-going Cognitive Behaviour Therapy (CBT) treatment
for a period of 3-6 months (at fortnightly intervals), to supplement the
treatment she was then receiving.

I met with Mrs. Morena again on October
26, 2011, with the express purpose of reviewing her treatment progress. My
overall impression is that Mrs. Morena has shown some modest improvement
in all areas; that said, she has by no means made a complete recovery.

Specifically, she described her mood as “not
happy much of the time” in the 12 months since she was previously assessed. She
also added “I can’t seem to handle any stress in life”. Symptomatically, she is
still troubled by some sleep disruption, diminished appetite, poor energy, and
poor memory. However, on a positive note, I note that Mrs. Morena is now
working (on a casual basis) as a noon-hour supervisor for the school district.
She also acknowledged many positives in her life (especially her family), but
she still feels that “something is not right”.

Turning next to the experience of pain, Mrs. Morena
continues to be troubled by back pain. Her headaches “come and go” and have
shown some improvement. She explained that it now takes her more time to
accomplish tasks, and it takes her a great deal of time “to get going in the
morning”. Mrs. Morena has resolutely committed to engaging in exercise at
her local gym, but also notes there are days she “pays for it”. To control her
pain, Mrs. Morena continues to take Advil on a daily basis, and will take
T3 on an occasional basis.

Finally, there
is the issue of PTSD. Again, Mrs. Morena has shown some improvement in
this area, but without complete remission.

[85]        
In his third and most recent follow-up report, dated February 4,
2013, Dr. James’ opinion is as follows:

Given the foregoing, I met with Mrs. Morena
on January 31, 2013, to determine her current status. The re-assessment
indicates the following:

1. Pain Disorder. Mrs. Morena
continues to experience high levels of pain, and on a daily basis. The primary
location of this pain is her head, neck, upper and lower back. On the day of
interview, she rated her pain as 9/10 when at its worst, and 7/10 when at its
best [on a scale where 0=No pain, and 10 is indicative of pain ‘As bad as you
can imagine’]. Whilst she acknowledged receiving some relief with pain
medication”, that was somewhat modest. Mrs. Morena was of the opinion
that pain interferes with her ‘general activity’ considerably, pain interferes
with her mood also, with her sleep, and with her enjoyment of life.

2. PTSD. You will likely
recall that when Mrs. Morena was assessed for the presence of PTSD, she
was first administered the TSQ, which is a well validated screening instrument
for identifying PTSD. [She scored 9/9 regarding positive symptoms for PTSD].

[…]

The results from the TSQ again confirms that
Mrs. Morena remains highly symptomatic of PTSD, and does [sic] has shown
no improvement since 2010.

3. Clinical Depression. Mrs. Morena’s
mood was showing some signs of improvement until early 2012, at which time she
relapsed quite heavily. Currently, she would easily meet DSM-IV diagnostic
criteria for Major Depressive Disorder. Mrs. Morena is perpetually sad,
hopeless, very tearful, irritated, has no interest in other people, has
difficulty making decisions, is constantly tired, her sleep and appetite are
disrupted, and she has completely lost interest in sex.

In considering the above deterioration in Mrs. Morena’s
psychological condition it is obviously important to identify the presence of
any other stressors that may have impacted her since my prior report in 2010.
To the best of my knowledge, Mrs. Morena has not experienced any severe
stressors since 2010.

Despite the fact that 4 years have now
passed since the [MVA], and the fact that she has undergone considerable
treatment, she has shown no sustained improvement in her psychological
condition. I had suggested in my initial report that the prognosis for each of
her psychological injuries should be viewed as guarded. Given the lack of
progress in the last two years, I would now have to ‘down grade’ her prognosis
to that of ‘poor’.

[Underlining
added except in titles, footnotes omitted and some test results summarized.]

[86]        
Dr. James impressed the Court as a highly
skilled and experienced psychologist who, like Dr. Salvino, was initially
more positive about the plaintiff’s likelihood of recovery. It is clear from
his most recent report that the plaintiff relapsed quite significantly in 2012,
such that she easily meets the standard diagnostic criteria for Major
Depressive Disorder, in addition to continuing to suffer from Chronic Pain
Disorder and PTSD. He frankly stated in direct examination that he did not
expect her to recover, that there had been minimal change, she had gotten worse
and “as far as we can predict this is as good as it will get.”

[87]        
In cross-examination Dr. James said he had
learned that she had suffered from anxiety in the past in his sessions with
her, after he did his initial assessment. As to whether that would have
affected his views he indicated that he would have had to know more about the
anxiety. He agreed that he could see elements of perfectionism in her
personality but that he had not observed that she could never be comfortable.
He did not agree with the suggestion that a prior history of anxiety makes a
person more vulnerable to PTSD. He said that if someone was treated for anxiety
to full remission and off medication for at least 12 months then there is no
additional risk of PTSD. He said the plaintiff achieved partial remission in
terms of her post-accident symptoms and then relapsed quite seriously. He said
that she had received considerable treatment from her family doctor and by
taking prescribed medication. In re-examination Dr. James confirmed that
he learned about the plaintiff’s prior treatment for anxiety in the form of
tension headaches during his sessions with her, but he confirmed that did not
affect his opinion regarding his diagnosis of her condition after the accident.

Dr. David Koo, an expert in Physical Medicine and Rehabilitation

[88]        
Dr. Koo, as an expert in physical medicine and rehabilitation, was
found to be qualified to provide expert opinion evidence in the diagnosis,
prognosis, and management of rehabilitation of individuals with motor vehicle
accident injuries, both with regards to physical and psychological injuries,
and to provide expert opinion evidence on the assessment of disability and the
effect of medical conditions and injuries on a patient’s functional abilities.
He impressed the Court as an exceedingly well-trained and competent physician,
scrupulously neutral in the provision of his expert opinion and possessing
“state of the art” credentials and experience in his areas of expertise.

[89]        
In his direct examination Dr. Koo explained aspects of his detailed
report, dated January 7, 2013, which followed a comprehensive assessment of the
plaintiff. I have considered all of Dr. Koo’s testimony and set out
portions of his report here.

[90]        
Dr. Koo summarized the treatment the plaintiff had received to date:

She recalls
narcotic medications helping with her pain, but they numbed her personality
like she was a "zombie" and she was not there. Nonnarcotic
painkillers can temporarily lessen the pain but they do not take it away.

Previous medications that have been
prescribed for her accident conditions include Tylenol ES, Tylenol-#3, Advil,
Remeron, Percocet, dilaudid, Robaxacet, Tiaporfenic Acid, Effexor, Imovane,
Celexa, Trazadone (sic), laxatives, Benadryl, reactine, Claritin, and atarax.

Her current medications include:

1.    
Robaxacet, two to four tablets daily.

2.    
Advil or Tylenol #3 as needed, alternating with
Robaxacet.

3.    
Trazodone 75 mg hs (for sleep).

4.     Topamax 30 mg hs (for headaches).

5.    
Metoprolol 12.5 mg bid (for heart palpitations related
to anxiety).

[91]        
Dr. Koo set out the plaintiff’s recent complaints:

Since the
accident, she has had constant neck pain across the back of her neck,
especially with rotation to the left or extension and looking upwards. By the
end of the day, or upon awakening in the morning, she is particularly painful.
Her neck has not improved significantly with heat, position changes or
stretching. Her neck pain tends to shoot into her midback between her shoulder
blades. It is worse than her back pain in that it is more frequent and severe.
Over time, it appears to be spreading. Her least pain is 5/10 without
medication, and with medication it can be as little as 2-3/10 (on a 0 to 10
scale, where 0 is no pain, and 10 is excruciating pain). With aggravation
towards the mid-morning or end of the day, it is 8-9/10. Her neck pain seems to
cause a mild ache and heaviness to her head towards the end of the day. She
denies true headaches, however, and this is quite distinct from her
pre-accident headache sensations.

Her lower back hurts almost every day and is
worse with certain activities. If she does absolutely "nothing", her
back does not hurt. However, it is typically aggravated with normal daily
activities such as sitting or standing for more than half an hour, jogging,
extended walking, or even cuddling with her daughter in a lying position. Her
low back pain is mostly midline, along the lumbosacral region. Its severity can
escalate to 8/10 but she typically will take medications to bring it back down
to a 5 or 6/10. She denies sciatica symptoms, or bowel or bladder changes. She
tends to be constipated from all the medications.

Her Revised Oswestry responses indicate that
her back pain intensity comes and goes and is moderate; that her personal care
has not changed in the way she washes or dresses, even though it causes some
pain; that she is unable to lift heavy weights but can manage light to medium
weights if conveniently positioned; that she cannot walk for more than a mile
without increasing pain; she is unable to sit for more than half an hour or
stand for more than half an hour without increasing pain; that even with
medications her pain limits her night’s sleep to less than one-quarter; her
pain does not impact her social life other than for more energetic interests
such as dancing; that she has extra pain when travelling but this has not
compelled her to seek alternative forms of travel; and that her back pain seems
to be getting better but improvement is slow at present.

She states that she gets tired of hearing
her children telling her that she is always tired or sick, so she tries to
control her pain so that she can function and be part of the family.

She has had poor
sleep since the accident even with trazodone. This dosage has increased over time
and she remains fitful in her sleep due to anxiety and pain. She has been
dreaming a lot more since the accident and these are bad dreams that do not
always make sense, often involving her daughter. She often awakens thinking she
has been crying during the night and her eyes are puffy and swollen. She is
unable to sleep past 4:30 or 5:00 in the morning and is unrested when she
awakens. She avoids napping during the day. She feels fatigued all the time and
yet has a lot of anxiety inside.

[Emphasis added.]

Her Patient Health Questionnaire-9 scored
24, suggestive of a severe major depressive disorder. In particular, in the
last two weeks she states that "nearly every day" she has had
little interest or pleasure in doing things; felt down, depressed or hopeless;
has had trouble falling/staying asleep; feeling tired or having little energy;
poor appetite or overeating; feeling badly about herself, or that she was a
failure or let herself or her family down; trouble concentrating on things such
as reading the newspaper or watching TV; and-moving or speaking so slowly that
other people could have noticed, or the opposite, being so fidgety or restless
that she has been moving around more than usual. She denied suicidal ideation.
Overall, she feels that these problems have made it "extremely
difficult" to do her work, take care of things at home, or get along
with other people.

Her PTSD
Checklist – Civilian Version suggests unresolved post-traumatic stress disorder
symptoms. Ms. Morena endorsed that in the last
month she has been "extremely" bothered by feeling very upset
when something reminded her of the accident from the past; had physical
reactions such as her heart pounding, trouble breathing or sweating when
something reminded her of the accident; a loss of interest in the things that
she used to enjoy; feeling distant or cut off from other people; feeling
emotionally numb or being unable to have loving feelings for those close to
her; feeling as if her future will somehow be cut short; trouble falling or
staying asleep; feeling irritable or having angry outbursts; having difficulty
concentrating; being super alert or watchful on guard; and feeling jumpy or
easily startled. She has also been bothered "quite a bit" by
repeated, disturbing memories, thoughts or images of the accident from the
past; avoids thinking about or talking about the accident from the past to
avoid the feelings related to it; and avoids activities or situations because
they remind her of the accident. She is bothered "a little bit" by
repeated, disturbing dreams of the accident from the past; and suddenly acting
or feeling as if the accident were happening again, as if she were reliving it.

[Emphasis
added.]

[92]        
Dr. Koo conducted a detailed physical examination of the plaintiff.
He noted the following:

Pertinent examination findings were cervical
neck pain that was reproduced with end range of extension, left and
right rotation, and right side flexion.

She had myofascial trigger points with
pain reproduction in the right scalenes, tapezius, supraspinatus, infraspinatus
and rhomboid muscles. On the left, myofascial trigger points were found in the
trapezius, levator scapula, rhomboids and supraspinatus and infraspinatus
muscles.

There was midline midback tenderness at
the T3-4 and T4-5 interspaces that was augmented and with active midback
extension.

She had full active range of motion but
had mechanical back pain at the lumbosacral junction at end extension and right
side flexion. She had mild tenderness to palpation at the midline from L4-5 and
L5-S1 levels, right SI joint, and the quadratus lumborum muscles bilaterally.

There was no
evidence of sciatica or neurologic sequelae. Waddell’s signs were negative for
nonorganic back pain pathology. Fibromyalgia screening was normal.

[Emphasis
added.]

[93]        
As indicated above Dr. Koo found myofascial
trigger points in various muscles groups in the plaintiff’s neck, upper back
and shoulders. With regards to the myofascial trigger points indicative of soft
tissue injury, Dr. Koo explained that he feels them with his fingers and
trains other physicians how to do this. If one doesn’t press hard enough or too
softly or if the person is “plump” one may not feel them. He explained that he
feels within the top bands of tightly bound chords of the patient’s muscle, and
if myofascial trigger points are present, they feel like soft peas, 3 to 6 mm.
in diameter. He said by feeling them they produce pain in the patient. Sometimes
the pain will radiate elsewhere in the patient’s body by a pathway and some
sensory changes of numbness or tingling may occur. He said the presence of
myofascial trigger points in a patient may be reproduced by other physicians
similarly trained. Continuing from his report, dated January 7, 2013, it is Dr. Koo’s
diagnostic opinion that:

[…] the motor vehicle accident on September
29, 2008 likely resulted in, or significantly contributed to, the development
of the following injuries and conditions:

1.         Soft
tissue injuries to the neck, shoulders, arms, lower back and legs with chronic
residual sequelae of:

a)   Chronic whiplash injury with mechanical neck pain, myofascial
origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus
and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus,
and infraspinatus muscles.

b)   Mechanical low back pain.

2.         Chronic
sleep disruption.

3.         Posttraumatic
stress disorder.

4. Severe depression.

5.         Heart
palpitations.

[94]        
As to whether the accident was the cause of the
plaintiff’s post-accident psychological state and physical symptoms, Dr. Koo
stated:

In my opinion, Ms. Isabella Morena did
not demonstrate significant pre-accident vulnerabilities related to her neck,
back, sleep, or depression.

She had a pre-accident history of tension
headaches attributed to anxiety and self-described "perfectionistic
qualities"; however, her symptoms were well managed on Paxil and
remained so after this was discontinued due to a drug allergy. Thereafter, her
anxiety symptoms were managed with regular gym attendance that included
unrestricted cardio, weights and step class activities that were done without
notable neck or back pain.

In my opinion, the motor vehicle accident
as described likely resulted in significant acceleration-deceleration impact
forces causing soft tissue injuries to her neck, shoulders, back and lower
extremities, that were severe enough that she was rendered significantly
disabled as it related to her activities of daily living, child care and
domestic responsibilities. […]

She has attended and participated in a
rehabilitative program that included physiotherapy and chiropractic treatment,
and a self-directed exercise program. Despite adherence to this treatment and
returning to limited employment as a lunch room supervisor, Ms. Morena has
had persisting difficulties with chronic mechanical neck and back pain that
limit her daily activities and sleep.

Her physical examination shows soft
tissue origin of her neck and back pain with myofascial trigger points present
in the neck and periscapular muscles, as well as pain reproduction during low
back extension, right side flexion, and palpation of the midline structures at
the L4-5 and L5-SI levels, right SI joint and quadratus lumborum muscles.

These examination findings are consistent
with a chronic soft tissue injury condition that has failed to resolve in the
four years since her original motor vehicle accident and likely represents
chronic sequelae of her initial soft tissue injuries.

She appears to have had additional
psychological injury by way of a severe depression and posttraumatic stress
disorder.

Her constant pain, pain medications
sleeplessness, and inactivity likely contributed significantly to the
development of a depression, which was first noted by her family doctor on
October 24, 2008 and has continued to persist since that time despite
psychological therapy. This is likely compounded by her perfectionistic
qualities and difficulties in maintaining her high level of standards as it
relates her person, home, and child rearing capabilities.

Her psychological symptoms are likely
compounding and contributing to her insomnia, cognitive and emotional symptoms,
and reducing her ability to cope with her chronic musculoskeletal injuries and
disability. In my opinion, the absence of a depressive history and
posttraumatic stress disorder symptoms prior to the accident in question, and
the onset of depression and posttraumatic stress disorder symptoms following
it, suggest that the accident more likely than not resulted in her psychiatric
injuries.

I would defer to a psychologist or
psychiatrist who has assessed Ms. Morena to further discuss any pre-injury
vulnerability that she may have had and causality as it relates to her mental
health conditions, and further characterization of her mental health diagnoses.

Since the
accident, Ms. Morena has been noted to have episodic heart palpitations
(September 24, 2012 and October 23, 2012), with noted family history of narrow
complex supraventricular tachycardia controlled with beta-blocker medication.
Accident-related conditions that would increase her risk of heart palpitations
include pain, insomnia, fatigue, anxiety, and possible side effects of Trazadone
(sic). I would defer to a cardiologist to further discuss any pre-accident
personal or family risk factors for palpitations, and causality as it relates
to the accident.

[Empahsis
added.]

[95]        
Dr. Koo’s opinion as to the plaintiff’s prognosis for recovery is
not positive. He noted the following in his report:

In my
opinion, the persistence of chronic soft tissue injuries and myofascial pain
more than four years post-injury is a negative prognostic factor. In my
opinion, her prognosis related to her chronic soft tissue injuries as it
relates to symptomatic and functional improvement is poor.

I would defer prognostication of
her depression and posttraumatic stress disorder to a psychiatrist or treating
psychologist. In my experience, however, the persistence of ongoing pain, disrupted sleep, loss of recreational and leisure pursuits,
and the psychosocial stressors of her disability are likely negative prognostic
factors that will impede her recovery from her psychiatric conditions.

[Emphasis
added.]

[96]        
His view of her physical limitations and level of disability arising
from the accident is as follows:

Ms. Morena has physical examination
findings of a painful cervical range of motion, particularly at end extension,
rotation in both directions, and right side flexion. She also has midback pain
with active extension. Her lower back pain was made worse with extension,
immobility in standing or sitting, and passive hip flexion. She had palpable
myofascial trigger points within the postural muscles of the neck and
periscapular regions, as well as soft tissues of the midline low back and
quadratus lumborus muscles.

In my opinion, Ms. Morena is likely to
experience significant aggravation of her neck and low back pain based on
relatively moderate activities of daily living, including housework, repetitive
or extremes of neck bending or rotation, prolonged sitting, standing or
sustained stationary postures. Her ability to stand, stretch and take short
breaks as required will likely be helpful in prolonging her ability to endure
such activities as it relates to her neck and low back injuries.

Her overall disability, however, is likely
further impacted on the basis of her severe depression and posttraumatic stress
disorder, which remain relatively refractory to treatment thus far. Her psychological
injury likely contributes to her insomnia, fatigue, memory impairment, and
reduced ability to persist in activities that are painful, and limit her
initiation and motivation to continue in an active rehabilitation program.

She is presently totally disabled related
to her pre-accident plans for further education as a special teaching
assistant, and I do not believe she would be capable of returning to six hours
per day of employment in such a capacity.

She remains partially disabled as it
relates to her pre-accident responsibilities in childcare, home maintenance and
personal leisure and recreation.

While she is able to maintain a reduced
level of home cleanliness and maintenance, she feels overwhelmed and stressed
that she is unable to maintain her high level of standards, or do a thorough
job of this. She is ashamed to have people visit her home as a result and this
likely causes additional depression and anxiety.

She has been unable to attain her previous
level of gym attendance or engage in higher impact activities such as running
or jogging. Her tolerance for even lower level activities such as flat
treadmill walking or relatively light weights is limited due to pain, fatigue
and depression.

Physical restrictions related to her
musculoskeletal injuries may be more thoroughly quantifiable during a
Functional Capacity Evaluation. The validity of such observational testing,
however, is likely to be impacted negatively by the presence of her depression,
posttraumatic stress disorder, and would best be deferred until she has had
adequate psychological supports and is felt to be medically stabilized in this
regard.

The limitations
attributable to her depression and posttraumatic stress disorder are deferred
to a psychologist or psychiatrist for further quantification.
Neuropsychological testing may also be useful in this regard as it relates to
impact on future schooling and vocational possibilities.

[97]        
In his report Dr. Koo made the following recommendations for
treatment:

The principal goals of treatment for
myofascial pain is relief of pain and inflammation, prevention of further
injury, reducing muscle spasm, correcting abnormal postures, and improving
circulation and disrupting the pain-spasm-ischemia cycle.

Initial treatment should include noninvasive
and low-risk maneuvers including stretching of the affected muscles, exercise
and postural correction, ergonomic education for lifting and carrying
techniques, and the use of deep pressure massage, laser and/or
acupuncture/acupressure for symptom relief.

There is moderately strong evidence for
manipulation and ischemic pressure for immediate pain relief of trigger points,
but only limited evidence that long-term pain relief should be expected.
Evidence also supports the use of laser therapy (strong), transcutaneous
electrical nerve stimulation, acupuncture and magnet therapy (all moderate) for
trigger points and myofascial pain. More limited evidence suggests potential
benefit with the use of ultrasound.

[…]

If medications, activation and noninvasive
treatments do not produce significant benefit in her myofascial pain, she may
warrant a trial of myofascial trigger point injections or IMS therapy. It
remains to be seen whether Ms. Morena would be tolerant of such treatments
and what her response would be, if any. In my experience, such benefits are
typically partial and difficult to predict on an individual basis.

Ms. Morena reports heaviness to her
head towards the end of the day, particularly when her neck has been
aggravated. This is quite distinct from her pre-accident history of
tension-headaches. In my opinion, she is likely describing recurrent
cervicogenic headaches that are typically exacerbated with pain and activities
that worsen underlying neck problems, although this may also be aggravated by
physiologic or emotional stress. The persistence of her chronic neck pain at
this time suggests that her cervicogenic headache frequency and intensity are
also likely to be chronic.

The mainstay of treatment for addressing her
posttraumatic headaches is addressing the pain arising from her neck and
shoulders, from a preventative sense.

I would recommend ongoing access to passive
pain-relieving modalities through physiotherapy, chiropractic treatment,
massage therapy and/or acupuncture that may be helpful in temporarily reducing
her soft tissue pains in her neck and back, so that she can continue
participating in her daily activities and recreation in as comfortable a
fashion as possible.

She should be
encouraged to stay as active as possible to prevent further deconditioning and
loss of range of motion. Lower impact activities such as swimming, walking and
gentle stretching should be encouraged on a daily basis, with a goal to
gradually increase the frequency, then duration and intensity in such
activities as she is able to tolerate without undue aggravation of her neck and
back symptoms. A physiotherapist or kinesiologist is recommended to help
develop, oversee and progress such an activity program, as well as to provide
scheduled reinforcement of such activities, which may be difficult to maintain
independently, given the severity of her depression and reduced interest and
motivation.

[98]        
In particular, Dr. Koo recommended that the plaintiff continue to
receive psychological counselling and treatment, including cognitive-behavioural
therapy to assist her with coping and adjusting to her injuries and
disabilities. He also recommended family and marital counselling as her
injuries have had a negative impact on her relationships with her husband and
children.

[99]        
In Dr. Koo’s opinion the plaintiff requires further assessment and
treatment from a psychiatrist to assist with her depression, PTSD and insomnia
in light of the pharmacological treatments that she has had to date and her
intolerance to certain medications. He adds:

If insufficient response to supportive
counselling, cognitive-behavioral therapy and medication review do not improve
her posttraumatic stress disorder symptoms significantly, she may benefit from
a trial of rapid eye movement desensitization treatment.

Further
recommendations and treatment strategies for her depression and posttraumatic
stress disorder are deferred to a psychologist or psychiatrist.

[100]     Dr. Koo also recommends home-making assistance and certain
medications for the plaintiff in light of her reduced ability to cope with
daily living. In these regards he notes:

Ms. Morena has reduced overall reserves
for maintaining her balance between personal, domestic and child-rearing
responsibilities. She feels overwhelmed and stressed with her inability to
actively participate and stay on top of these different areas of her life, and
this is likely compounding her depression and anxiety, and creating a negative
self-perception cycle.

She would likely benefit from homemaking
supports for regular housecleaning, vacuuming and heavier housework. This would
allow Ms. Morena to rebalance her limited reserves and direct them towards
areas that are more personally relevant, such as raising her children and
feeling like she is a good mother. Reducing pain-aggravating activities during
her daily routine may also allow her to reduce the amount of pain medications
she is taking, and may improve the quality of her sleep.

She reports partial benefit from the regular
use of Robaxacet, ibuprofen and Tylenol #3. The temporary pain-reducing
benefits of these medications are symptomatic only, and are unlikely to be
curative. She would likely require the use of such medications on an ongoing
basis to maintain a therapeutic level of effect. These medications can cause
some degree of drowsiness, constipation and/or gastrointestinal upset.

The combination of her neck and back pain,
headaches, depression and anxiety has led to a change in the quality of her
sleep. She now reports frequent awakenings and early rising. Upon awakening, she
feels unrefreshed. Insomnia can lead to increases in fatigue, memory impairment
and depression.

Trazodone
appears to be reasonably effective for improving her sleep but this continues
to be disrupted from her pain and anxiety. This may require further increases
in the dose of such medication and/or substitution following psychiatric
review.

[101]     Dr. Koo concluded his recommendations by indicating that the
plaintiff may benefit from the input of an occupational therapist to help her
improve her sleep.

[102]     Dr. Koo was cross-examined widely in relation to his
examination of the plaintiff, his report and his findings regarding the
plaintiff. None of his major findings were disturbed. When asked if he was
recommending things that the plaintiff had not found to be helpful in the past
like physiotherapy and occupational therapy, he said that different therapists
have different approaches and sometimes it is worth it for a patient to try
four to six sessions and if there is no benefit then move on. In other words,
there could still be benefit to the plaintiff in pursuing various forms of
treatment. He also indicated that when someone is severely depressed their
motivation and initiation may be reduced. It is not easy to get someone in with
pain to endure treatments and activities, and depression is an additional
source of disability that makes it harder for the plaintiff to initiate and
endure treatment. He reiterated that it is very hard to separate physical and
mental disabilities co-existing in the same person. With regards to his
findings that he listed in Appendix II of his report, he acknowledged that he
rated power in her upper and lower extremities as 5/5 and that he did not find
any neurological cause for weakness. In terms of aspects of his physical
examination of the plaintiff, he said he sets all his findings out and then
extracts what he considers to be relevant, “the pertinent positives”, and puts
them in the summary section. The rest he said is available for the reader to
consider.

[103]     In terms of Dr. Koo’s findings (at p. 13 of his report)
that the plaintiff is “presently totally disabled related to her pre-accident
plans for further education as a special teaching assistant” and that he did
“not believe she would be capable of returning to six hours per day of employment
in such a capacity”, he explained that her work disability relates to her
impairments and activity limitations in terms of sitting, standing and lifting,
and applies to other forms of employment as well. He indicated it did not
relate just to her pursuing employment as a SEA. He said that if her depression
and PTSD stabilized and were treated then a functional capacity assessment
would be useful. At a clinical level Dr. Koo said it was artificial to
separate the physical and the emotional in one person because if you don’t
address the emotional and try to measure their physical capacity you may not
get a true measurement, or the physical may be underestimated if emotional
barriers like depression and pain existed that prevented the person from providing
a full effort. He provided additional details as to why he did not consider her
to be able to physically manage the demands placed upon a SEA when assisting a
special needs student in class.

[104]     In terms of the plaintiff’s treatment for depression to date Dr. Koo
considered the medications tried by Dr. Salvino to be appropriate. He
recommended that she try a SNRI but by “no means” was he sure that would reduce
her depression. He said that each time a medication for depression is tried
without favourable results “the pool of people that might respond is smaller”
and the same negative result would be likely here.

Dr. Richard Loomer, an orthopedic surgeon, engaged on
behalf of the Defendants

[105]     Dr. Richard Loomer, an orthopedic surgeon, examined the
plaintiff and prepared an Independent Medical Report that was filed on behalf
of the defendants. He was not called as a witness at trial.

[106]     In his report, dated November 27, 2012, Dr. Loomer reported
that the plaintiff had a full range of motion in her lumbar spine; her upper
and lower extremities seemed normal; she had some tenderness in her neck that
intensified with extension; and there was no tenderness in her shoulders. After
noting there were no imaging studies for him to examine, he stated:

I have reviewed a letter from Dr. L.
Salvino dated May 13, 2010. His diagnoses included; headache, strained entire
spine, bilateral leg contusions, and depression/anxiety.

My diagnosis would be a cervical sprain or
soft tissue injury to the cervical spine with associated headaches. I could
find no evidence of neurological involvement.

As I am an orthopedic surgeon I will not
comment on the psychological diagnoses.

Causation:

I think it is very clear that the motor
vehicle accident in question caused her problems as her symptoms were not
present prior to the car accident.

Treatment Suggestions:

She seems to be very dedicated in helping
herself by going to the gym and doing exercises and I would strongly recommend
that she continue with these. I do not think that any further intervention or
more interventionist treatment is indicated. I would encourage her to return to
all recreational activities even though they may cause some pain as activity
does help to recover.

[Bold in
original titles omitted.]

[107]     Dr. Loomer’s opinion regarding the plaintiff’s prognosis is:

As it has been 4
years since the motor vehicle accident I think it is very likely that the
symptoms from the musculoskeletal system will continue. The symptoms have
improved over the 4 years and I think there is reason to think that they will
gradually decrease but I think that she is likely to have these for quite some
time, I would estimate another 4 years.

Dr. Koo’s Further Report and Testimony in Response to
Dr. Loomer’s Report

[108]     Dr. Koo was provided with an opportunity to respond to the
report of Dr. Loomer. Although Dr. Koo found Dr. Loomer’s
findings to be in general agreement with his own, Dr. Koo provided
additional insights and commentary regarding the plaintiff’s overall condition.
In his further report of February 4, 2013, Dr. Koo commented as follows:

Important Facts and Assumptions that were
not explicit in his [Dr. Loomer’s] report, or that bear elaboration
include:

1.    
Although Ms. Morena was a housewife at the
time of the accident, she had worked for many years as a hairstylist and office
manager prior to starting a family, and had intentions of re-entering the
workforce when her children were older.

2.    
He incorrectly assumes that Ms. Morena is
taking Trazadone (sic) and Topiramate “as I understand, psychotropic
medications for her anxiety.”

Her low-dose
trazadone (sic) 75 mg at night is likely for insomnia management. Although
trazadone (sic) is commonly used for depression management, this is at doses
starting at 150 mg and higher per day. It would not be typically used for
anxiety.

Topirimate (sic)
has indications for headache prophylaxis and seizure management (which Ms. Morena
doesn’t have), and off-label indications for neuropathic pain. It would not be
a medication typically used for anxiety.

3.    
While we both found soft-tissue tenderness in
her cervical spine, Dr. Loomer “could not find any increased tone in
the muscles”, and found her low back examination to be normal did not
comment on whether the mid-back was examined.

This is in
contrast to my examination less than 2 months later, where I found:

·       
She had myosfascial trigger points with pain
reproduction in the right scalenes, trapezius, supraspinatus, infraspinatus and
rhomboid muscles. On the left, myofascial trigger points were found in the
trapezius, levator scapula, rhomboids, and supraspinatus and infraspinatus
muscles.

·       
There was midline midback tenderness at the T3-4
and T4-5 interspaces that was augmented with active midback extension.

·       
She had full active range of motion but had
mechanical back pain at the lumbosacral junction at end extension and right
side flexion. She had mild tenderness to palpation at the midline from L4-5 and
L5-S1 levels, right SI joint, and the quadratus lumborum muscles bilaterally.

His lack of pain
on palpation to her low back may be due to variability in Ms. Morena’s
level of pain aggravation on the day he assessed her, or alternatively, due to
variability between our respective examination techniques.

As it relates to
her myofascial trigger points, however, studies have shown fair consistency in
these points over time, and it is unlikely they would have suddenly appeared in
the intervening months; in my opinion, the most probable explanation would be
inter-rater variability between the palpatory examination technique utilized
between Dr. Loomer and myself.

4.    
He understandably defers on commenting on her
psychological diagnosis, however does not consider this further when
prognosticating her future recovery. In my opinion, ongoing depression and
severe post-traumatic stress disorder are significant negative prognostic
factors in the recovery from her physical symptoms, and vice versa.

5.    
I disagree with the recommendation that “I do
not think that any further intervention or more interventionist treatment is
indicated.” Ms. Morena reports significant, temporary pain reduction
following chiropractic treatment that lasts upwards of 2 weeks; she has not
tried acupuncture or massage therapy to date. In my opinion, these potentially
pain-reducing therapies, although unlikely to be curative, are of significant
merit in a comprehensive, palliative, treatment plan directed at optimizing Ms. Morena’s
well being and reducing her pain without incurring undue medication side
effects. The role of certain forms of physiotherapy myofeedback, and massage
therapy in particular, have reasonable evidence for effectiveness following
chronic soft-tissue injury.

6.    
I disagree with his recommendation that she “return
to all activities even though they may cause some pain as activity does help to
recover”. In my opinion, a return to unrestricted activities is unlikely
based on her activity tolerances to date, and is likely to result in increased
potential for harm by increasing her pain levels, anxiety, insomnia, and
depression through failure.

I would suggest
that a supervised, graduated return to activities that are lower-impact such as
swimming, walking and gentle stretching with oversight by a physiotherapist or
kinesiologist to promote her re-activation, while minimizing risk for physical
or psychological set-back.

7.    
I agree with his prognosis that “as it has
been 4 years since the motor vehicle accident I think it is very likely that
the symptoms from the musculoskeletal system will continue.” However, I
disagree that “there is reason to think that they will gradually decrease
but I think she is likely to have these for quite some time, I would estimate
another 4 years.”

In my experience, maximal medical recovery
from most soft tissue injuries takes place by the 2 year post-injury mark, and
it would be very unlikely for Ms. Morena to have significant symptomatic
or functional recovery in the future. Treatment recommendations are for
palliation only, and would not be considered curative at this stage of her
recovery process.

[109]     Dr. Koo’s analysis of the similarities and differences between
his findings and those of Dr. Loomer is clear and comprehensive. While
both physicians found that the plaintiff had likely sustained cervical sprain
or soft tissue injury to the cervical spine, which was associated with the
headaches the plaintiff experiences, the findings of Dr. Koo were more
far-reaching and included the presence of myofascial trigger points not found
by Dr. Loomer. Dr. Koo’s findings relating to the plaintiff’s physical
injuries from the accident are broader and all-encompassing than those noted by
Dr. Loomer. Unlike Dr. Loomer, Dr. Koo’s assessment of the
plaintiff includes the impact of severe depression and PTSD on the likelihood
of plaintiff making a full recovery, which he regards as “highly unlikely” at
this point. Dr. Koo’s expertise includes an assessment of physical and
psychological injuries, the management of rehabilitation and an assessment of
disability and injury on the plaintiff’s functional abilities, whereas as an
orthopedic surgeon, Dr. Loomer’s focus was by definition a much narrower
one that did not take into account the plaintiff’s depression, PTSD and chronic
pain syndrome. Dr. Koo acknowledged aspects of Dr. Loomer’s findings
that were congruent with his own and discussed inter-rater variability as
between doctors, saying that Dr. Loomer’s techniques may not have
encompassed examining myofascial trigger points, which he said were likely to
have been present when she was examined by Dr. Loomer about five weeks
prior to when Dr. Koo examined her.

[110]     Where the evidence of Dr. Loomer as to the nature and extent of
injuries sustained by the plaintiff in the accident conflicts with that of Dr. Koo,
I accept the evidence of Dr. Koo. In terms of a prognosis for recovery I
accept the evidence of Dr. Koo that the plaintiff likely reached the maximal
medical recovery from her soft tissue injuries by the two year post-injury mark,
over that of Dr. Loomer’s that her symptoms will gradually decrease but
will likely continue for an estimated four more years.

Robert Carson, an economist

[111]    
Mr. Carson, an economist with an area of
expertise in labour economics, provided a report on behalf of the plaintiff. He
did not testify at trial and his findings were not challenged on behalf of the
defendants. He prepared a multiplier table that may be used to calculate the
present value of any pattern of future earnings or loss of earnings in relation
to the plaintiff. Values were calculated using an annual discount rate of 2.5%,
the rate required by regulation in BC in matters pertaining to future loss of
employment earnings. He determined that:

The net present value of an annual sum of
$1,000 from the trial date to the plaintiff’s 65^th birthday is
$13,621. To age 70 it is $16,430. As an example of the use of the values, a
constant annual sum of $10,000 over the time period to Ms. Morena’s age 65
has a present value of:

($10,000/$1,000) x
$13,621

= 10 x $13,621

=$136,210.

Damages

Non-pecuniary damages

[112]     The plaintiff seeks an award in the range of $130,000 to $150,000
for non-pecuniary damages.

[113]     The defendants argue that the plaintiff has recovered significantly
from her physical injuries. Further, they argue that her depression, PTSD and
chronic pain syndrome must be regarded as being exacerbated by her prior problems
with headaches, anxiety, and managing stress in the context of her perfectionist
personality. They submit she would have struggled with these problems
notwithstanding the accident and urge the Court to consider the alleged
inconsistencies in her testimony. Therefore, they advance a “crumbling
skull” argument that the plaintiff had pre-existing headaches and anxiety, and
would have continued to experience these symptoms despite the accident.They submit that this ought to be reflected in any award for
non-pecuniary damages.

[114]    
I will briefly consider the basic legal principles associated with the
“crumbling skull” doctrine. In Athey v. Leonati, [1996] 3 S.C.R. 458,
Major J. writing for the Court stated the following basic principles:

34        The respondents argued that the plaintiff was
predisposed to disc herniation and that this is therefore a case where the
"crumbling skull" rule applies. The “crumbling skull” doctrine is an
awkward label for a fairly simple idea. It is named after the well-known “thin
skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries
even if the injuries are unexpectedly severe owing to a pre-existing condition.
The tortfeasor must take his or her victim as the tortfeasor finds the victim,
and is therefore liable even though the plaintiff’s losses are more dramatic
than they would be for the average person.

35        The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiff’s “original position”. The defendant need not put the
plaintiff in a position better than his or her original position. The
defendant is liable for the injuries caused, even if they are extreme, but need
not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway. The defendant is
liable for the additional damage but not the pre-existing damage:
Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages
for Personal Injuries and Death (9th ed. 1993), at pp. 39-40.
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton
Proprietary Ltd., supra; Cooper-Stephenson, supra, at
pp. 851-852. This is consistent with the general rule that the plaintiff
must be returned to the position he would have been in, with all of its
attendant risks and shortcomings, and not a better position.

[115]    
The relationship between indivisible injuries and a pre-existing
condition was recently explained by the BC Court of Appeal in Moore v. Kyba,
2012 BCCA 361, at para. 43:

If the injury is indivisible, then the plaintiff is entitled
to be compensated for the loss flowing from the indivisible injury. However,
if the plaintiff has a pre-existing condition and there was a measurable risk
that the condition would have resulted in a loss anyway, then that pre-existing
risk of loss is taken into account in assessing the damages flowing from the
defendant’s negligence. This principle is called the “crumbling skull”
rule. As explained in Athey (at para. 35): “This is consistent with
the general rule that the plaintiff must be returned to the position he would
have been in, with all of its attendant risks and shortcomings, and not a
better position.”

[Emphasis added.]

[116]    
In the present case, the plaintiff had seen her doctor about tension
headaches and anxiety prior to the accident. She was, however, largely symptom
free for 18 months prior to the accident when all the other “stressors” of her
life were active. During that time she was a busy mother with very high
standards for looking after her children. She was managing her home and meals
with ease and enjoying social outings and interactions with friends and family.
She was meeting her family responsibilities and had a good relationship with
her husband. She was a happy, active, energetic individual with perfectionist
tendencies. She experienced only occasional headaches during that time. She
managed stress with exercise.

[117]     The evidence establishes that she was injured in the accident and as
a result developed of the following injuries and conditions as listed by to Dr. Koo:

1.         Soft tissue injuries to the neck,
shoulders, arms, lower back and legs with chronic residual sequelae of:

a)         Chronic
whiplash injury with mechanical neck pain, myofascial origin, involving the
right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left
trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus
muscles.

b)         Mechanical
low back pain.

2.         Chronic sleep disruption.

3.         Posttraumatic stress disorder.

4.         Severe depression.

5.         Heart
palpitations.

[118]     Post-accident,
the plaintiff has describes severe pain in her neck, upper back, between her
shoulder blades and in her lower back. At times she experiences headaches
associated with this pain. The headaches that she has experienced since the
accident are distinctly different in kind and intensity and are considered to
be related to injuries she sustained in the accident, particularly to her neck.

[119]     In this
regard I particularly note the evidence of Dr. Salvino and Dr. Koo.

[120]     Dr. Salvino
clearly distinguishes between anxiety and depression generally and between the
plaintiff’s earlier treatment for tension headaches with some anxiety, and the
depression symptoms and anxiety that he associates with her involvement in the
accident “as an adjustment type reaction.”

[121]     Dr. Koo
noted that the plaintiff had a pre-accident history of tension
headaches attributed to anxiety and self-described "perfectionistic
qualities"; however, her symptoms were well managed on Paxil and
remained so after this was discontinued due to a drug allergy. Thereafter, her
anxiety symptoms were managed with regular gym attendance that included
unrestricted cardio, weights and step class activities that were done without
notable neck or back pain.

[122]     Dr. Koo noted that when Ms. Morena reports heaviness to
her head towards the end of the day, particularly when her neck has been
aggravated, this is quite distinct from her pre-accident history of
tension-headaches. His opinion was that she is likely describing recurrent
cervicogenic headaches that are typically exacerbated with pain and activities
that worsen underlying neck problems that may also be aggravated by physiologic
or emotional stress; and that the persistence of her chronic neck pain at this
time suggests that her cervicogenic headache frequency and intensity are also
likely to be chronic. In his view the mainstay of treatment for addressing her
posttraumatic headaches is to address the pain arising from her neck and
shoulders, from a preventative sense.

[123]     There is no evidence to support the proposition that the headaches
she has experienced since the accident are related to her prior tension
headaches and much evidence to the contrary.Therefore, I do not find
that the plaintiff had a pre-existing condition in relation to headaches that
gives rise to a measurable risk that she would have sustained a future loss
regardless of the accident.

[124]     In
terms of psychological injuries, the plaintiff suffered great shock and trauma
in the accident largely because of her fear that her young daughter had been
seriously injured. That trauma, combined with the pain from the physical injuries she suffered, caused her to suffer from pain and anxiety
leading to chronic pain, PTSD and depression, the latter which became full-blown
and severe, worsening despite appropriate treatment. This has occurred despite the
plaintiff’s diligent pursuit of medical treatment and compliance with treatment
recommendations. The psychological problems she has experienced post-accident
and continues to experience are markedly different from her pre-accident state
of mind when she was described by those who knew her to be happy, socially
engaged, loving and very involved with her husband and children, and full of
positive energy to do tasks and try new things. In my view her “perfectionist”
personality is hardly a pre-existing condition unless and until it has moved
into the realm of the obsessively compulsive, so as to give rise to a form of a
recognized psychiatric disorder or limiting psychological condition, which is
not the case here. As a result of the accident the plaintiff
sustained myofascial pain syndrome in her upper back, shoulders and neck and
recurring mechanical lower back pain. She suffers from a form of chronic pain syndrome,
PTSD and major depression as well as chronic sleep disruption and heart
palpitations. These conditions have affected her ability to sleep and enjoy her
daily activities. She struggles to get out of bed in the morning; her appetite
is gone; she has poor memory and trouble focusing; and, she feels like a shell
of her former self. Her relationships with her family and friends have been
significantly and negatively affected by the accident. In short, she has
suffered a significant reduction in her enjoyment of life.

[125]     In support of her claim for non-pecuniary damages in the range of
$130,000 to $150,000 the plaintiff relies on the following authorities:

·      
In Sulz v. Attorney General et al., 2006
BCSC 99, an RCMP officer suffered from chronic Major Depressive Disorder after
experiencing harassment in the workplace. Her disorder resulted in loss of
enjoyment in all aspects of her life. Although she endured no physical
injuries, the Court found her psychological harm would be lasting and awarded
her $125,000 in general damages.

·      
In Charlebois v. Vandas, 2004 BCCA 356, a
21-year-old active female experienced chronic pain from soft tissue injuries to
her neck, back and shoulders arising from a motor vehicle accident. The
plaintiff’s previously active lifestyle was and would continue to be negatively
affected. The BC Court of Appeal upheld the jury’s $110,000 award for
non-pecuniary damages.

·      
In Alden v. Spooner et al., 2002 BCCA
592, the female plaintiff was in four motor vehicle accidents and experienced
soft-tissue damage, chronic pain syndrome, and depression. The BC Court of
Appeal upheld a jury award for non-pecuniary damages at $200,000. The Court
found that although the amount was high, the accidents occurred “when the
plaintiff was at a vulnerable age and stage of her life, and their combined
effect was physically and emotionally devastating to the plaintiff” (at para. 28).

·      
In Flex v. Hearne, 2011 BCSC 1236, a 44-year-old
female was injured while driving her car when her boyfriend, who was in the
passenger seat, grabbed the wheel causing the vehicle to overturn off the
highway. Her partner died from the crash. She sustained neck and back injuries,
PTSD, and significant depression. The Court found that combined, these injuries
led to a significant loss in relation to her vocation, family life, and social
activities. She was awarded $200,000 for non-pecuniary damages.

·      
In Marois v. Pelech, 2007 BCSC 1969, the
plaintiff was 49 years old when she was in a motor vehicle accident. She sustained
physical injuries and experienced chronic pain, as well as significant anxiety
and depression. The court awarded her $130,000 for non-pecuniary damages.

·      
In Ashcroft v. Dhaliwal, 2007 BCSC 533,
the plaintiff was in her 50s when she was in a motor vehicle accident. She had
a pre-existing spinal condition that was projected to be asymptomatic for 10-15
years. As a result of the motor-vehicle accident, she sustained soft tissue
injuries and experienced chronic pain. She also suffered from depression and
PTSD. The court awarded her $120,000 for non-pecuniary damages.

·      
In Eccleston v. Dresen, 2009 BCSC 332, a
43-year-old plaintiff was in a motor vehicle accident. She suffered moderate
soft tissue injuries in her neck and upper back and suffered from chronic pain.
She also suffered from depression. The Court found that the plaintiff had a
predisposition to depression and related pain conditions. It concluded there
was a 10 percent risk these predispositions would have come to the fore
regardless of the accident. The non-pecuniary award of $120,000 reflected that
contingency.

·      
In Morlan v. Barrett, 2012 BCCA 66, a 46-year-old
female who was previously described as “high energy” and a “perfectionist” was
in a motor-vehicle accident. She experienced chronic pain and fibromyalgia. The
BC Court of Appeal upheld a non-pecuniary award of $125,000, noting that the
accident had robbed her of her energy and lifestyle.

·      
In Rizzotti v. Doe, 2012 BCSC 1330, the
49-year-old plaintiff was involved in three separate motor vehicle accidents.
She suffered physical injuries as well as ongoing depressive symptoms and PTSD.
The Court awarded her $110,000 for non-pecuniary damages.

·      
In Knauf v. Chao, 2009 BCCA 605, the
35-year-old female plaintiff was rear-ended on two separate occasions within
two months of each other. She sustained soft tissue injuries that improved over
time but she continued to experience intermittent pain. The BC Court of Appeal
found the jury’s award of $235,000 for non-pecuniary damages to be wholly
disproportionate and reduced it to $135,000, finding that while the plaintiff’s
injuries were unfortunate, they were not devastating or catastrophic.

[126]     The defendants submit that an appropriate award for non-pecuniary
damages in this case is in the range of $60,000 to $80,000. They rely on the
following cases:

·      
In Badyal v. Sidhu, 2006 BCSC 1877, the female plaintiff sustained
injuries after her vehicle was struck by another vehicle while she was stopped
on the road. She suffered injuries to her neck, upper back, shoulder, low back
and hip. She also suffered from depression and a mood disorder, which continued
to the date of trial. The Court found the pain from her injuries would not
resolve for some time and not until after her depression subsided. She was
awarded $75,000 for non-pecuniary damages, but on appeal the parties agreed to
reduce the award to $55,000: see Badyal v. Sidhu, [2007] B.C.J. No. 1528
(C.A.).

·      
In La France v. Natt, 2009 BCSC 1147, the 54-year-old plaintiff
was involved in three motor-vehicle accidents over the course of 14 months. The
Court found she suffered physical injuries resulting from the first accident,
which were aggravated by the following two. The Court found the pain was
chronic. Non-pecuniary damages were assessed at $80,000. The court found she
had a predisposition to anxiety attacks and discounted damages by 25% to
reflect that; she was awarded $60,000 for non-pecuniary damages.

·      
In Poulton v. Inderbosch, 2010 BCSC 711, the plaintiff was
33 years old when her vehicle was struck by another vehicle that ran a red
light, causing her to suffer from pain (most significantly in her knee),
headaches, fatigue, anxiety and depression. The plaintiff’s knee injury
continued to trouble her four years after the accident and the Court concluded
her prognosis was poor. Her headaches had improved somewhat by the time of the
summary trial. She was awarded $70,000 for non-pecuniary damages.

·      
In Qiao v. Buckley, 2008 BCSC 1782, the 45-year-old female
plaintiff was rear-ended by the defendant’s vehicle. She suffered from “chronic
pain, a disc herniation in her neck, soft tissue injury to her neck, anxiety
(including panic attacks), and depression” (at para. 3). The plaintiff had
a pre-existing anxiety disorder and periodic depression; these symptoms had
ameliorated in the eight months leading up to the accident. The accident
aggravated her symptoms and caused the plaintiff to develop new phobias. The Court
found her neck and back pain was chronic and became worse if she was anxious or
stressed. Her relationships suffered as a result of the injuries. The Court
found the plaintiff failed to mitigate and reduced her award by 30%. General
damages were assessed at $50,000.

·      
In Warren-Skuggedal v. Eddy, 2009 BCSC 1085, the defendant
lost control of his vehicle and struck the plaintiff’s vehicle in oncoming
traffic. The plaintiff suffered “soft tissue injuries to her neck, low and mid
back and legs” (at para. 5). The plaintiff had suffered from a heart attack
years before the accident. She continued to have angina and panic attacks in
the years after. Additionally, three significant people in her life, including
her husband, had died before the accident. These deaths caused her to
experience severe depression. The Court found her anxiety and depression were
not caused by the accident but her soft tissue injuries were. Non-pecuniary
damages were assessed at $60,000.

[127]    
Once the extent of the injuries for which the defendant
is liable is determined, the next step is to quantify them. The defendants rely
on Schubert v. Knorr, 2008 BCSC 939, for a concise statement of the
general principle of a non-pecuniary award. The Court in Schubert states,
at para. 97:

The “purpose of
non-pecuniary damages is to “ameliorate the condition of the victim considering
his or her particular situation”. The gravity of the injury is not
determinative: Stapley v. Hejslet, 2006 BCCA 34 at ¶45).
[…] Ultimately, however, as Sinclair Prowse J. identified in Caldwell v.
Ignas, “no two situations are identical” and the specific circumstances of
the plaintiff’s case must be addressed in determining an award of non-pecuniary
damages.

[128]    
The decision of Stapley v. Hejslet, 2006 BCCA 34,
reviews the factors that inform an award of non-pecuniary damages:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[129]     Considering the authorities and legal principles to which I have
been referred, I find that the cases relied upon by the defendants are
distinguishable on their facts. Generally none of them involve a plaintiff who
has the long-term poor prognosis of this plaintiff, particularly in relation to
severe depression. I note that in Badyal the Court found that the
plaintiff’s injuries would resolve once her depression subsided; in La France
the plaintiff suffered from chronic pain with a predisposition to anxiety
attacks resulting in a 25% reduction of the award; in Poulton the
prognosis for the plaintiff’s knee pain resolving was poor, but the plaintiff’s
headaches had improved and her depression was not classified as severe; in Qiao
the plaintiff had a pre-existing anxiety disorder and periodic depression and
had failed to mitigate; and in Warren-Skuggedal there were contributing
causes to the plaintiff’s severe depression that were unrelated to the accident.

[130]     In the present case, prior to the accident, the plaintiff was a
vital, energetic 43-year-old wife and mother of two. The extent of her injuries
and the ensuing conditions is clearly set out above. She is likely to continue
to suffer from pain, depression, PTSD, sleep disruption and potentially heart
palpitations in to the future. Her depression is severe and seems to be
entrenched. Her pain is severe at times and she requires constant pain
medication. Her emotional suffering is great due to her great sadness and regret
that she is not able to make the contributions to her family life that she did
prior to the accident. Her relationships with family and friends have been
negatively affected although her family remains intact. The best evidence is
that she is fully disabled from work except for the one hour a day as a lunch
supervisor she currently performs during the school year. She remains partially
disabled from housework and other physical activities. Her enjoyment of all
aspects of her life is significantly reduced. She is prevented by the injuries
and their aftermath from living what otherwise was likely to have been a very happy,
productive and fulfilling life. She has lost much.

[131]     Considering the range of awards in the authorities provided on
behalf of the plaintiff, I find the decisions of Marois and Morlan
to be of the most assistance. I award non-pecuniary damages in this case in the
amount of $130,000.

Loss of Past Earning Capacity

[132]     The plaintiff seeks an award of $20,000 to $35,000 under this head
of damages.

[133]    
The defendants’ position is that the plaintiff
was a stay-at-home mom at the time of the accident and claims to have been
cutting hair from her home. However, the defendants submit that her evidence on
that point is contradictory and she has failed to establish a loss in this
regard. They submit that the facts do not support her claim for past wage loss
or a past loss of capacity.

[134]    
In particular, the defendants note that although the
plaintiff stated that it was her intention to become a SEA when she left the
workforce, she took no steps to pursue that employment until 2012. She had not
pursued this plan prior to the accident in September 2008 even though she had
“lots of energy” during that time and the program appears to be available on a
part-time basis. They submit that her claim assumes once she had completed the
necessary training she would have immediately found a full time job as a SEA.
The defendants submit the present case is similar to Park v. Arthur,
2007 BCSC 1365.

[135]    
I do not accept this submission. Given that the
plaintiff’s daughter was two years old at the time of the accident it is not
reasonable to expect that the plaintiff would have embarked upon the required
training to become a SEA prior to September 2008. The plaintiff’s present work
as a lunch break supervisor for an hour on school days, despite the injuries
she sustained in the accident, is a testament to her work ethic and
determination; she likely would have returned to work once her youngest child
was school age. Her lengthy history of employment prior to leaving West Coast
Fasteners is indicative of her commitment to employment outside the home. The
inference that the defendants ask the Court to draw is that because she had not
pursued SEA training prior to the accident, or since with her injuries, is a
faulty one. The BC Court of Appeal recently affirmed that an injured plaintiff
is entitled to compensation for loss of their earning capacity, not just their
lost wages (Ibbitson v. Cooper, 2012 BCCA 249 at para. 19). This
decision followed the Supreme Court of Canada’s directions in M.B. v.
British Columbia, 2003 SCC 53, in which McLachlin C.J.C. noted that loss of
capacity to earn is an asset (at paras. 46 and 47). The valuation for this
asset is “equivalent to the value of the earnings that she or he would have
received over time, had the tort not been committed” (at para. 50).

[136]    
In Ibbitson, the BC Court of Appeal re-affirmed
its decision in Rowe v. Bobell Express Ltd., 2005 BCCA 141, where it
found that the loss of income a plaintiff would have earned, but for the
injury, is only one measure of a person’s earning capacity. At para. 19,
the Court said:

…The measure may
vary where the circumstances require; evidence of the value of the loss many
take many forms (see Rowe). As was held in Rosvold v. Dunlop,
2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and
reasonableness of the award must be considered taking into account all the
evidence. An award for loss of earning capacity requires the assessment of
damages, not calculation according to some mathematical formula.

[137]    
The plaintiff submits the following:

101. In our case, Mrs. Morena could
have and more likely than not, would have earned income but for the accident. We
know she had been earning income by cutting hair in her home which she stopped
as a result of the accident. Furthermore, it is respectfully submitted that but
for the accident she would have returned to the work force or attended school
when her daughter [name deleted] entered school in September of 2010. But for
the accident it is more likely than not she would have commenced working as an
SEA in September of 2012.

102. At the very least, Mrs. Morena had
the capacity to earn $5,000 to $10,000 per year cutting hair. Alternatively,
had she started working as an SEA in September of 2012 she would have earned
approximately $3,200 per month. ($23.80 + 16% x 6 hrs per day x 193 = $31,970,
over 10 months = $32,000). In this case she would have made $3,200 x 7.5 months
[to the end of March 2013] = $24,000.

103. As a lunch time supervisor she makes
$18.11+ 16% per hour. Thus, the annual income can be calculated as follows:

 $18.11 +16% x 1 x
193 = $4,053

104. Therefore, assuming Mrs. Morena would
have started working as an SEA in September, 2012 the loss since then would be
approximately $20,000.

105. Adopting
the approach set out by the Court of Appeal in Ibbitson v. Cooper and
assessing the loss rather than calculating it the Plaintiff respectfully
submitted that an award of $20,000 to $35,000 would be fair. This range takes
into consideration Mrs. Morena would likely have cut hair but reduced her
efforts in that area while she attended school.

[138]     In the present case, the loss of the income the plaintiff would have
earned is a sufficient comparator to assess her past loss of earning capacity. However,
her income from hair cutting at home is undocumented and undeclared. Her
evidence as to how much of this work she was doing prior to the accident in
September 2008 conflicts with that of her husband. I do not find her to be
dishonest but simply inaccurate in this regard, her recollection being coloured
by her depression and profound sense of guilt and loss in relation to letting
her family down since the accident. Her main source of declared income in 2007
and 2008 is the universal child care benefit in the amount of $1,200. Accepting
that she cut hair from her home or provided other hair services for
remuneration and taking her husband’s evidence into account, I find it is
unlikely that she provided more than 50 such services in a year at the average
price of $40 per service. I estimate her lost income from providing hair
services post-accident to be $2,000 per year from September 2008 to September 2010
when her youngest started school, totaling $4,000 for this two year period.

[139]     After September 2010 I find it is likely that the plaintiff would
have engaged in training to become a SEA and worked reasonable hours part-time as
a SEA, in a comparable position or provided hair services. She likely would
have earned on average $6,000 for each of these years, totaling $12,000 up to the
beginning of September 2012. From this amount it is necessary to deduct $500 (to
approximate the $462 she earned during this time in 2011 as a lunch hour
supervisor) and a further $2,000 for 2012, up to September 2012 as a portion of
her actual wage as a lunch hour supervisor, for a total estimated lost income
from September 2010 to September 2012 of $9,500.

[140]     Assuming a similar pattern for the balance of 2012 and up to the
trial, a period of 7.5 months, her income was likely to have increased once she
became a qualified SEA to $3,200 per month, for a total of $24,000, such that I
estimate her lost income from this period to be $24,000 minus the approximately
$4,000 she made as a lunch hour supervisor during the same time, for a total of
$20,000.

[141]     These amounts total $33,500 and taking into account that the
plaintiff may have encountered delays in taking training as a SEA or finding
suitable employment, I estimate her past income loss for the period of time
from the accident in September 2008 to April 2013 to be $28,000 and fix it at
that amount.

Future Loss of Earning Capacity

The Plaintiff’s Position

[142]     The plaintiff seeks a substantial award for future loss of earning
capacity, an award in the range of $350,000 to $400,000.

[143]     The plaintiff submits that based on her evidence regarding her
employment at West Coast Fasteners she had a capacity to earn $50,000 per year.
She also had the additional capacity to earn $5,000 to $10,000 per year from
cutting/styling hair. The evidence as to her school lunch supervisor position
for one hour a day on school days indicates that she has a residual earning
capacity of approximately $4,000 per year. Both her husband and her close
friend Ms. diCicco confirmed that the plaintiff’s plan was to return to the
workforce in order to make a significant contribution to her family’s finances
once her youngest child entered school and to become a SEA like her friend Ms. diCicco.
The accident and the injuries she sustained in it intervened, and, except in a
most limited way in terms of her one hour a day job as a lunch supervisor, she
is according to Dr. Koo wholly disabled in terms of pursuing more demanding
and remunerative employment in the future.

[144]     The plaintiff submits the formula to calculate the present value of
future earnings contained in Mr. Carson’s report may assist the Court in
assessing the plaintiff’s future loss of earning capacity. In this regard, if
one were to consider the plaintiff’s pre-accident total earning capacity to be
$55,000 per year and then to subtract her residual earning capacity of $4,000,
she is left with an annual loss of $51,000. Utilizing the multiplier provided
by Mr. Carson this would result in a potential maximum loss of $694,671
(51 x $13,621).

[145]     More conservatively, if the Court was to find that the plaintiff
would have engaged in some work as a hair stylist and part-time work as a lunch
hour supervisor, earning a combined total annual income of $15,000, then her
annual loss would be approximately $11,000 ($15,000 – $4,000). Again, utilizing
the multiplier provided by Mr. Carson this would result in a loss of
$149,831 (11 x $13,621).

[146]     Counsel for the plaintiff submits that both these scenarios
represent the extremes of a range, and that the most likely future employment
for the plaintiff “but for” the accident would have been working as a SEA.

[147]     The evidence indicates that SEAs are paid $27.61 per hour ($23.80
per hour, plus 16% in lieu of benefits) and they work six hours per day over a
school year comprised of 193 days. Based on that evidence, this would have
resulted in a total annual income for the plaintiff of $31,972.38 or roughly
$32,000 per year. Given that she is presently able to earn approximately $4,000
this would result in an annual loss of $28,000 ($32,000 – $4,000). Again using
the multiplier provided by Mr. Carson the plaintiff calculates her lost
future income as $381,388 (28 x $13,621).

[148]     These being the parameters of the range, taking into consideration
positive and negative contingencies, and accepting that this is an assessment
and not a calculation, the plaintiff submits an award in the range of $350,000
to $400,000 would be fair and reasonable.

[149]     The plaintiff provided the Court with detailed written submissions
on the law and relies upon the following authorities pertaining to this head of
damages:

·      
O’Brien v. Anderson, 2000 BCCA 460;

·      
Ruffle v. Canada (Correctional Service), 2007 BCSC 1264; and

·      
Ibbitson v. Cooper, 2012 BCCA 249.

The Defendants’ Position

[150]     The defendants submit that the award for future loss of earning
capacity in this case ought to be considerably less than the amount sought on
behalf of the plaintiff.

[151]     The defendants submit that the accident did not play a significant
role in the plaintiff’s work-related decisions. They point to evidence that
prior to the accident, she left the workforce to be with her older child and then
she and her husband decided she would provide childcare and maintain their household
until their second child entered school; that she has taken no steps to pursue
a career as a special education assistant; and, that she continues to balance
her family, personal interests, and work interests. They further submit that
the plaintiff has successfully been able to find work in a job she likes in the
form of her one hour a day school lunch supervisor position. The defendants
submit that in the event the Court finds a loss of capital asset, the Court
should limit the award to an amount equivalent to one year’s salary as a SEA.

[152]     The defendants rely on Reilly v. Lynn, 2003 BCCA 49 as a
seminal authority and also cited Brown v. Golaiy, (1985), 26 B.C.L.R.
(3d) 353 (S.C.); Perren v. Lalari, 2010 BCCA 140; and Pelkinen v.
Unrau, 2008 BCSC 375. Counsel for the defendants reminds the Court that the
plaintiff must first and foremost prove there is a real and substantial
possibility of future events leading to income loss. The defendants hold the
plaintiff to strict proof of her loss in this regard (Perren at para. 32).
They further submit that if the Court finds that there is a real and
substantial possibility of a future event leading to an income loss, it must
determine which of two approaches to take in assessing the loss (either on an
earnings approach or a capital asset approach), and in the present case that
the capital asset approach is appropriate as a loss in the present case is not
easily measurable. The Court must also consider the overall fairness and
reasonableness of the award.

The Relevant Law and its
Application to the Present Case

[153]    
In Reilly, the Court of Appeal summarized
the legal principles that inform an analysis for future loss of earning
capacity as follows:

[101] The relevant principles may be briefly
summarized. The standard of proof in relation to future events is simple
probability, not the balance of probabilities, and hypothetical events are to
be given weight according to their relative likelihood: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 27. A plaintiff is entitled to compensation
for real and substantial possibilities of loss, which are to be quantified by
estimating the chance of the loss occurring: Athey v. Leonati, supra,
at para. 27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133
at 135 (C.A.). The valuation of the loss of earning capacity may involve a
comparison of what the plaintiff would probably have earned but for the
accident with what he will probably earn in his injured condition: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.). However, that is
not the end of the inquiry; the overall fairness and reasonableness of the
award must be considered: Rosvold v. Dunlop (2001), 84 B.C.L.R.
(3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to assess
the losses, not to calculate them mathematically: Mulholland (Guardian ad
litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally,
since the course of future events is unknown, allowance must be made for the
contingency that the assumptions upon which the award is based may prove to be
wrong: Milina v. Bartsch, supra, at 79. In adjusting for
contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy
Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection with
respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiff’s occupation,
but generally it will be small …

[Emphasis added in Reilly]

[154]    
More recent authorities reflect a certain
refinement of how to fairly and properly assess future loss of earning capacity
and provide guidance on which approach is appropriate in a particular case, the
earnings approach or the capital asset approach. In Perren, Garson J.A.
for the Court of Appeal describes these two approaches:

[11] Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, 6
B.C.A.C. 314, was cited by Finch J.A. in Pallos. In Kwei, where
it was not possible to assess damages in a pecuniary way as was done in Steenblok,
Taggart J.A., speaking for the Court, held that the correct approach was to
consider the factors described by Finch J., as he then was, in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353. […] Mr. Justice Taggart cited the
Brown factors with approval:

[25] The trial
judge, as I have said, referred to the judgment of Mr. Justice Finch in Brown
v. Golaiy. Future loss of earning capacity was at issue in that case. It
stemmed from quite a different type of injury than the injury sustained by the
plaintiff in the case at bar. But I think the considerations referred to by Mr. Justice
Finch at p. 4 of his reasons have application in cases where loss of
future earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice
Finch’s judgment:

The means by which the value of the lost,
or impaired, asset is to be assessed varies of course from case to case. Some
of the considerations to take into account in making that assessment include
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.

[12] These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to the
assessment of future loss of earning capacity. One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach
may be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated. The other approach is more appropriate where the loss, though
proven, is not measurable in a pecuniary way. An obvious example of the Brown
approach is a young person whose career path is uncertain. In my view, the
cases that follow do not alter these basic propositions I have mentioned. Nor
do I consider that these cases illustrate an inconsistency in the jurisprudence
on the question of proof of future loss of earning capacity.

[155]    
After reviewing the jurisprudence, Garson J.A.
states:

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

[Emphasis in
original.]

[156]     I find on the evidence in this case that there is a real and
substantial possibility of a future event leading to a loss of income for the
plaintiff. The medical evidence establishes that the plaintiff is totally
disabled from pursuing full-time employment as a SEA or in fact, any full-time
employment in the future. All of the experts, except Dr. Loomer (whose
prognosis was very guarded and did not take into account aspects of
psychological injury), are of the opinion that it is unlikely that the
plaintiff’s ability to function will improve. The sad reality for the plaintiff
is that she is unlikely to be able to work more than she is now. It is a mark
of her determination that post-accident she has sought out and maintained the
minimal employment that she has. Prior to the accident the plaintiff was not
the kind of person who would have simply chosen to do less. The decision she
reached with her husband regarding staying at home with her children until her
youngest was of school age in 2010 is not indicative of a decision not to work
outside the home later in a full-time and committed way. In these times it is
not to be assumed, absent clear evidence to the contrary, that if a woman
leaves the workforce after an established period of full-time employment, she
has decided not to return when her childcare responsibilities lessen. The
plaintiff had a realistic plan to become a SEA, which she saw as affording her
meaningful work for sufficient remuneration and hours that would permit her to
continue to parent her children. These findings, coupled with her significant
prior work history, found my decision that the correct basis upon which to
assess her future loss of earning capacity is based upon the earnings approach.

[157]     Based on the evidence that a SEA working as the plaintiff planned
would have resulted in a total annual income of approximately $32,000 per year
and she is presently able to earn approximately $4,000, her annual loss is $28,000
($32,000 – $4,000). Using the multiplier provided by Mr. Carson her lost
future income is calculated at $381,388 (28 x $13,621), or approximately
$380,000.

[158]     When the plaintiff was injured she was not working outside the home
except for her minimal income from styling hair. She had a solid plan to become
a SEA but she had not taken steps to move toward that goal because of the ages
of her children. I am mindful that no level of projected future earnings can be
treated as a certainty: West v. Cotton (1995), 10 B.C.L.R. (3d) 73
(C.A.); and Nelson v. Nelson (1994), 98 B.C.L.R. (2d) 182 (C.A.).

[159]    
In my view this is a case where the figure of
projected future income loss must be adjusted to reflect the degree of
likelihood that these events would come to pass. In Reilly, the majority
reasons of the Court of Appeal state the following regarding contingencies when
assessing future loss of earning capacity:

[121] We turn
now to contingencies. Contingencies must be considered in order to take into
account the chance that the assumptions upon which the loss has been assessed may
turn out to be wrong. […]

[160]     Mr. Carson’s calculations that result in the multiplier of
$13,621 are based on the plaintiff working until age 65. At the time of trial
the plaintiff was age 47. Mr. Carson’s projection reaches ahead almost 20
years into the future. Many things can change in a person’s life over 20 years.
They may make different choices depending on what life brings and the
assumption that the plaintiff would work as a SEA or in a similar form of
employment until age 65 is certainly not immutable.

[161]     It is also not certain that the plaintiff would have completed the
training to become a SEA and obtained employment income upon which Mr. Carson’s
calculations are based. I am mindful of the need not to undervalue a legitimate
claim by arbitrarily reducing it by contingencies. However, this is a case
where both the assumed age of retirement and the likelihood of full-time
employment for the plaintiff as a SEA or in an equivalent position warrant a
reduction based upon these contingencies. I am of the view that a ten percent
reduction for each, for a total reduction of 20 percent, is appropriate.

[162]     Therefore, I assess the plaintiff’s entitlement to damages for
future loss of earning capacity to be $300,000 (which represents an approximate
amount based on $380,000 less 21% or $79,800).

Cost of Future Care

[163]    
The defendants submit, and I agree, that awards for future care are
based on what is reasonably necessary on the medical evidence to promote the
mental and physical health of the plaintiff. The test to be applied when courts
consider awarding the cost of future care is set out by McLachlin J. (as
she then was) in Milina v. Bartsch (1985), 63 B.C.L.R. 122, [1985]
B.C.J. No. 2762 at paras. 198-201, as follows:

[198] …The test for determining the appropriate award under
the heading of cost of future care, it may be inferred, is an objective one
based on medical evidence.

[199] These authorities establish (1) that there must be a
medical justification for claims for cost of future care; and (2) that the
claims must be reasonable. […]

[201] …The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health.

[164]     In the present case I accept that the medical evidence establishes
that the plaintiff will require ongoing counselling, chiropractic treatments
and medications. It was Dr. Koo’s opinion that it would be beneficial in
terms of pain management for the plaintiff to try physiotherapy, massage
therapy and acupuncture. He was also of the view that a consultation with an
occupational therapist would be of assistance to her, and that she would
benefit psychologically from some housekeeping assistance.

[165]     In the present case the Court must determine what amounts are
reasonable for such future treatments and services without a cost of future care
report, and I will endeavour to do so, keeping in mind that the burden rests
with the plaintiff to establish a medical justification for her claim.

[166]     It is submitted on behalf of the plaintiff that the following
services and estimated amounts are reasonable in light of the evidence: counselling
for the plaintiff and her family ranging in cost from $1,000 to $1,500 per year
for five to ten years, amounting to $5,000 to $15,000; chiropractic care at $40
per month or $480 per year for five to ten years, amounting to $2,400 to $4,800;
medications for pain and other conditions related to the accident of
approximately $500 per year for life estimated at 30 years, amounting to approximately
$15,000; and other recommended therapies totaling $5,000.

[167]    
In addition, the plaintiff also seeks an amount for
housekeeping assistance based on the following ranges and calculations:
housekeeping assistance ranging from two to ten hours per week at a cost of $20
to $25 per hour for 48 weeks per year, amounting to a range of $1,920 to
$12,000 per year (depending on the number of hours and cost per hour) which,
using the multipliers provided by Mr. Carson, results in a range of $26,152
and $163,452 (1.92 x $13,621 and 12 x $13,621 respectively).

[168]    
Based on all of the services, medications and
therapies claimed above, including housekeeping services, the plaintiff seeks
an award for the cost of future care in a range between $53,552 and $203,252,
and submits that a fair and reasonable award would be from $75,000 to
$100,000.The defendants do not propose an appropriate award but concede the
plaintiff should receive an award for psychological therapy for a limited time,
some housekeeping services, medication, and physical treatment to alleviate
pain.

[169]     The Court of Appeal recently articulated a distinction between a
claim for the loss of homemaking capacity and a claim for future cost of care (O’Connell
v. Yung, 2012 BCCA 57 at paras. 65-67). Madam Justice Kirkpatrick cited
Professor Cooper-Stephenson as he explained the difference in Personal
Injury Damages in Canada, 2d ed. (Scarborough: Carswell, 1996) at 315:

…However, a
large portion of homemaking involves the performance of work for others,
namely, the family unit, and in many cases the claim for loss of homemaking
capacity is wholly distinguishable from that for cost of care, particularly if
the plaintiff is hospitalized. The loss is a “negative” loss, in the sense that
it is the loss of something the plaintiff would have had (her homemaking work)
but which she now does not have because of the accident. This places it
squarely under the head of loss of working capacity. In contrast, the expenses
of services provided by others to care for the plaintiff are “positive” losses
— the addition of an extra expense — and they clearly fall under cost of
care.

[170]    
The distinction between housekeeping capacity as
an asset that is lost as opposed to housekeeping as an additional expense one
will incur in the future was re-addressed by the Court of Appeal in Milliken
v. Rowe, 2012 BCCA 490, when it said, at paras. 54 and 57:

…Future costs for caregiving are directly
related to services that will reasonably be expected to be provided to the
plaintiff in the future to assist her or replace her in carrying out her
duties, based on the evidence of need and opportunity. The fact that her
supplemented or replaced care directly benefits her family members is
irrelevant…

[…]

…Loss of
caregiving capacity is a separate category of non-pecuniary damages which
compensates for the damage to the plaintiff’s asset, while future care costs
are the actual replacement costs the respondent will incur, based on need and
opportunity, to assist her in her future caregiving responsibilities to
her disabled spouse, which necessarily benefits herself and her spouse.

[Emphasis in
original.]

[171]     Although this distinction was not addressed in the submissions
before me, I do not interpret the plaintiff’s claim for housekeeping to be for
loss of caregiving capacity. The loss claimed here is for a “positive loss” in
relation to her and costs she will incur. It is Dr. Koo’s opinion that hired
housekeeping services will benefit the plaintiff by assisting her to balance
the various areas of her life and to focus on her relationship with her family,
given her severe depression, chronic pain and PTSD.

[172]     I have considered the Court of Appeal’s recent decision in Shapiro
v. Dailey, 2012 BCCA 128, where it addressed a trial judge’s decision to
award a plaintiff homemaking and nanny services as future care costs. The Court
of Appeal overturned the trial judge’s decision to order an award for nanny
services since the plaintiff never planned to be a “stay at home” mother and
had always planned to hire a nanny when she returned to work (at para. 44).
Such an award put her in a better position than she would have been but for the
accident. The Court of Appeal did note, however, that the judge properly
accounted for the housekeeping services by discounting some of the award. He
found she would have hired some services notwithstanding the accident, but
would need them longer due to her injuries (at paras. 51-57).

[173]     In the present case, absent the accident, it is very unlikely that
the plaintiff would have hired someone to perform housekeeping tasks even in
the event that she worked six hours on school days as a SEA. She took pride in
keeping her home clean and I find she would have made efforts to do so outside
of her SEA work hours.

[174]     I find that three hours of housekeeping assistance per week at
$25/hr for 48 weeks of the year will medically assist the plaintiff. I accept that
the expert evidence with regards to her physical and mental condition indicates
that she is unlikely to improve over her present level, and I estimate that she
will need this future care for at least ten years and fix the amount at $36,000.
I am not inclined to go beyond ten years because by that time her children will
be grown and the pressures on her time will likely have lessened.

[175]    
In relation to the amounts claimed I find the
following to be reasonable and medically justified, and reasonably necessary to
maintain the plaintiff’s health in the future:

·       $10,000 for counseling;

·       $4,800 for chiropractic services;

·       $12,000 for medications;

·       $5,000 for other recommended therapies; and

·       $36,000 for housekeeping services;

·       Total future costs of care: $67,800.

Special Damages

[176]     The plaintiff seeks an award in the amount of $12,879.19 for special
damages. The parties are in agreement as to the amount of the claim such that
the plaintiff is not required to prove each individual expense. I find on the
evidence provided that the plaintiff did incur the various expenses claimed,
including for chiropractic treatments, which Dr. Salvino cryptically noted
in his clinical records for June 13, 2011, and that he testified may have been
helpful to the plaintiff. I award the plaintiff $12,879.19 in special damages.

Conclusion

[177]     Based on these reasons I find that the plaintiff is entitled to the
following relief and so order:

1.    
Non-pecuniary damages in the amount of $130,000;

2.    
Past income lost in the amount of $28,000;

3.    
Future loss of earning capacity in the amount of
$300,000;

4.    
Cost of future care in the amount of $67,800;
and

5.    
Special damages in the amount of $12,879.19.

[178]     The
plaintiff is entitled to pre-judgment interest at the prevailing rate.

[179]     With regards
to costs, unless there are offers which have been exchanged which affect the
matter, I find that the plaintiff as the successful party is entitled to her
costs at Scale B.

[180]     If parties
still wish to make submissions based upon offers that have been made, then
arrangements may be made through the registry.

“The Honourable Madam Justice Arnold-Bailey”