IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140324

Docket: M130078

Registry:
New Westminster

Between:

Anita Mosimann

Plaintiff

And

Michelle Grace
Guliker, Deceased, Robert Van Raes,
and Intrinsic Transport Inc.

Defendants

– and –

Docket: M153083

Registry:
New Westminster

Between:

Anita Mosimann

Plaintiff

And

Andrew Caldwell

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
In the two actions before the court, three accidents, none of which were
the fault of the plaintiff, give rise to a claim for damages. The first
occurred on September 19, 2008. The second and third occurred on July 23, 2009
and on June 1, 2013, respectively. Liability has been admitted for each,
with the exception that contributory negligence is pled in connection with the
first accident. The plaintiff was not wearing a seatbelt, and it is alleged
that her injuries would not have been as severe had she done so. This is not
conceded.

II

[2]            
The plaintiff was born in Switzerland in 1959, graduated high school there,
and took training as a nurses’ aide. She married and had a child. Her husband
died in a motorcycle accident leaving her with a five-month old baby.

[3]            
The plaintiff subsequently remarried, and in 1984, joined her new husband
in Canada in his farming operation near Roblin, Manitoba. Two weeks after this
marriage, the plaintiff learned that her husband had been diagnosed with
multiple sclerosis. As time went on she took on a greater and greater role in
the operation of the farm, which consisted of three sections, mostly in grain,
with a herd of 100-130 head of cattle.

[4]            
Eventually the plaintiff’s husband’s condition deteriorated to the point
where they could no longer run the farm and decided to sell and move to Chilliwack,
British Columbia. He could not work and the plaintiff took employment at a
Brownies’ chicken franchise for about a year. Then they started an enterprise
called Anita’s organic mill. They had some success with this, and the plaintiff
decided to open up a bakery. The mill and bakery were heavy work and she
appears to have developed some chronic back issues as a result.

[5]            
The marriage deteriorated and the business was eventually sold. By the
time the plaintiff was divorced she had commenced a relationship with Darryl
Wear, who became her third husband. She began contract work painting hydro
towers, and also obtained a flagging ticket and a PE Fusion ticket which
allowed her to work on gas installations. She worked for a company called
McDonald and Ross on construction contracts until she was laid off in January
of 2008. She then drew employment insurance, and, in connection with that
program, completed training as a hydraulic excavator operator in June of 2008.

[6]            
The plaintiff was accompanying Mr. Wear to a worksite to drop off
resumes on September 19, 2008 when the first accident occurred.

[7]            
The plaintiff had had bladder cancer surgery in 2004, and a knee injury
in 2007. These problems were no longer issues as of the date of the first
accident.

[8]            
The plaintiff says that she was physically very active in her youth. She
rode motorcycles through several countries in Europe and enjoyed skiing, water
skiing and boating. She and her second husband had invested in condominiums at
Sun Peaks. She had tried paragliding. When she and Mr. Wear got together she
bought a motorcycle and they rode with each other.

[9]            
The plaintiff says she had no significant emotional or psychological
issues before the first accident. She had attended a counsellor with Mr. Wear
to address issues related to his difficult upbringing. She maintains that this was
to help her better understand Mr. Wear, and was not concerned with problems in
their relationship.

III

[10]        
The collision of September 19, 2008 occurred on a rural highway between
Agassiz and Mission. Mr. Wear was driving a large Kenworth truck, hauling an
empty trailer. The plaintiff was in the passenger seat. The other party,
Michelle Guliker, was operating a much smaller compact car which crossed the
centre line and struck the truck head on. Ms. Guliker was killed in the
collision. The accident occurred at about 4:50 a.m. in darkness. The
plaintiff saw the headlights coming at them as the vehicle approached. It was a
very alarming event.

[11]        
The second collision occurred on July 23, 2009. The plaintiff was,
again, a passenger in another large truck being driven by Mr. Wear, which was
struck by a large trailer truck that cut the corner at an intersection and
dragged the Wear vehicle backwards. The plaintiff was not physically injured in
the collision, although, again, it was an alarming event.

[12]        
The third collision took place on June 1, 2013. The plaintiff was
operating a pick-up truck as a pilot vehicle for Mr. Wear, who was behind her in
a truck hauling an oversized piece of equipment. Approaching an intersection,
the plaintiff tried to get traffic to stop. A passing vehicle reversed in order
to comply, and clipped the plaintiff’s pilot truck. It was a very minor
accident and the plaintiff was not physically injured.

[13]        
The plaintiff saw her general practitioner, Dr. Whetter, concerning the
first accident on September 22, 2008, or three days after it happened, and saw
him thereafter as described in a report dated March 3, 2010:

I first saw Anita Mosimann following her MVA of September 19,
2008 on September 22, 2008 in my office. Since that time I have seen her on
September 26, 2008, October 3, October 10, October 24, November 10, November
19, November 21, December 19, January 6, 2009, April 27,2009, May 20, July 10,
July 27, July 31, August 24, September 2, January 22, 2010, February 4,2010 and
my last visit March 1, 2010.

On my initial assessment on 22 September 2008 in my office I
reviewed the mechanism of the accident. There was a tremendous impact. She was
belted in but there was no airbags in the truck. Even though Anita saw the oncoming
car and was able to brace herself her face hit the dashboard and she received a
terrific jolt in her upper body. Initial superficial injuries were a bruised
forehead with bruising and swelling around her left eye including a hematoma
and a bruise across the bridge of her nose.

Her myofascial symptoms involved her neck, both shoulders
(especially the left) with pain radiating from the left shoulder part way down
the arm. She also complained of pain in her upper thoracic spine, again mostly
on the left.

On examination she had a stiff neck with a lot of palpable
tenderness and spasm. Range of motion of her neck was limited to about 75% of
normal, particularly in rotation and side bending to the right. There was tenderness
and palpable spasm from her neck down into the area between her scapulae and
including the muscles over her left scapulae and into her left rotator cuff of her shoulder. She also had symptoms suggestive of a
sciatic pain into her right buttock, the back of her right leg and down to the
heel. Range of motion of her lower back was quite good. She could almost touch
her toes.

In subsequent visits through October and
November the persisting problems were constant pain, in the back of her neck,
constant pain in her left shoulder and left scapular area as well as the upper
thoracic spine, particularly medial to the left scapulae. She was also more
aware of continuing pain in her nose.

Through these visits it was very obvious
that she was having a major difficulty with suffering psychologically and
showed all the symptoms of a post-traumatic stress disorder. Her nose was
x-rayed and turned out to be fractured and somewhat deformed and she was
referred to Dr. Kloppers, then referred to a Dr. Tsai. Her nasal symptoms now
included hypersensitivity to her nose, in other words any sharp smells or
change in temperature or dust, caused her burning pain in her nose. Through
December and into January 2009 her main problems continued to be #1 post
traumatic stress disorder, #2 pain and sensitivity in her nose with sinus
symptoms and #3 continuing constant pain in her neck, left thoracic spine and
shoulder-blade area and left shoulder. She continued to have palpable
tenderness and spasm in the back of her neck, more on the left in the upper
thoracic area on the left side medial to and over top of her shoulder-blade and
into her rotator cuff. Specifically she was tender along her left supraspinatus
right to the insertion as well as her infraspinatus to the insertion and her upper
biceps tendon all in the left rotator cuff. These symptoms and findings
continued through the spring of 2009.1 reassessed her on April 27^th
and she had some slight improvement but no major changes. In May her
symptomatology was the same although she had more complaints now of a frontal
sinusitis and burning and sensitivity in her nose with a watery nasal discharge
and a frontal headache.

She had her fractured nose relocated and
repaired by Dr. Tsai – this was followed with episodes of heavy post-op bleeding,
nasal swelling and obstruction which caused her to panic. Through the fall of 2009
she had some small improvements but still had the same major complaints and
problems and continued to have evidence of post traumatic stress such as
extreme anxiety at times, nightmares causing insomnia and great difficulty
riding in a car, particularly at night with oncoming headlights. I saw her
again in January and February of 2010 – her symptoms to do with her neck, upper
thoracic spine and particularly left side and her left rotator cuff were all
still present but continuing to improve. Her main-complaints at this time were
again of a very sensitive nose, acutely reacting to dust, temperature change
and any unusual smells.

Her treatment initially was IBUPROFEN, physio,
heat and ice, ATIVAN and counselling. She was also put on TRAZODONE 50 to 100
mg to take at bedtime to help her sleep. In October 2008 she was receiving
counselling and chiropractic treatments as well as her physio. Her physio
treatments at the physiotherapist’s, and also with her exercises at home,
helped with her range of motion but her pains and symptoms were very slow to
improve. During her symptoms of sinusitis in May 2009 she was put on an
antibiotic called AVELOX for 14 days and given a FLUTICASONE nasal spray. She
was continuing also to use IBUPROFEN.

Following her nasal surgery she was
continued on ATIVAN .5 sublingual for her anxiety and some ADVAIR 250 for
episodes of shortness of breath. She also used a nasal irrigation and in early
2010 started treatments with acupuncture.

My last visit with Anita and her common-law
husband was on the 1^st of March 2010. I reviewed all of her injuries
with her and got her to give me a ballpark assessment of how much she had
improved since the original accident. She felt that she was 85 to 90% better in
her physical symptoms but was only about 80% improved in her mental status. Her
main symptoms and disability was mostly from the sharp pains in her nose
resulting in intermittent nasal obstruction, dyspnea and panic. At this time
she continues to have pain and palpable muscle tenderness in the left side of
her neck posteriorly and around and medial to the left scapula. Range of motion
in her back and her neck is almost normal although there is still some restriction
in her neck in side bending to the left. Range of motion of both shoulders is
normal. She also continues to have some numbness of the upper gums above and
around her upper incisors and says she continues to have some loss of smell and
taste since her nasal surgery.

Prognosis for
Anita: She will never completely recover from her post traumatic stress
disorder and will continue to be frightened at times in traffic, particularly
with oncoming headlights. She may continue to have nightmares. It seems like
she will also continue to have some sensitivity and pain in her nose. I
believe that the myofascial injury symptoms in her neck and left upper back and
left shoulder will continue to improve to maybe 95 or even 100% of normal. [Emphasis
added.]

[14]        
The plaintiff’s treatment has since been taken over by Dr. Jessica
Kennedy. In a report dated August 5, 2013 she summarized her involvement:

My initial office visits with Anita were focused on her nasal
symptoms which caused her a huge amount of anxiety and were interfering with
her ability to function (July 20, July 31, August 13, August 24, October 11,
2012, Feb 1, and May 15 [Dr. Noble], 2013). She perseverated on her nasal
symptoms and was overwhelmed by them, usually crying in my office whenever she
spoke of her nose or nasal symptoms. I believe this is because it was
triggering symptoms of PTSD. Anita often spoke about how her nasal symptoms
reminded her of the MVA of September 19, 2008. She reported that even touching
or thinking about her nose would cause emotional distress. She had a couple of
acute on chronic sinusitis episodes which responded to Septra and nasal
steroids. July 31, 2012 she reported a worsening of the nasal pain and pressure
which she rated at an 8-10/10 in terms of severity, and was located in the area
of the frontal and maxillary sinuses. Symptoms were worsened by elevation
changes (i.e. driving up and down hills) which would cause her to feel
nauseated and presyncopal (light-headed) as well. Her nasal discharge was thick
but clear and I treated her with Septra. August 13, 2012 Anita reported that
her sinus pain and congestion had improved to a baseline of 3/10 in terms of
severity. She still had flares of pain twice a week that were 10/10 in severity
but this was much improved from the daily symptoms she had been experiencing.
She also reported that day that she had a chronic dry cough that I thought may
be from postnasal drip so I asked her to continue on her nasonex. August 24,
2012, Anita informed me that Dr. Tsai was planning on sending her for a CT of
her sinuses. October 11, 2012 I reviewed Dr. Javer’s report and referred her to
get allergy testing as he had recommended. Anita reported again her
difficulties with pain over the bridge of her nose that worsened with elevation
changes while driving. She described it as a twisting sensation and it caused
her to become nauseated. This led to vomiting on two instances. I asked her to
review this with Dr. Tsai as he was seeing her four days later and he had asked
her to follow up with him if she was having difficulties. Her CT scan had
showed mild chronic maxillary and sphenoid sinusitis. February 1, 2013, Anita
presented with another acute on chronic sinusitis which caused increased pain,
pressure and postnasal drip. I treated her with Septra antibiotics and nasonex.
Of note, I referred Anita to the chronic pain clinic in Surrey on June 20, 2013
to have them review her chronic nasal pain. This appointment is still pending.

In March 2013, Anita started to
present to discuss emotional difficulties that she was having, especially
anxiety while driving or even as a passenger (March 7, April 2, June 5, June
11, June 20, June 28, July 12 [Dr. Whetter], July 17 and August 16, 2013). She
reported looking at the wheels of on-coming traffic to ensure that the vehicles
were not driving towards her. She had anxiety attacks, usually related to
driving. She was working with a counsellor, Jane Byra, who was doing EMDR, a
form of treatment for PTSD. These counselling sessions had improved her
psychological symptoms somewhat, but Anita felt she had plateaued and was not
making further progress. I recommended that she try getting in to see a
counsellor with the Anne Davis Society as they are well known for treating
PTSD, however apparently they only help women who are victims
of violence. I also recommended trying to find a community therapy driving
program which a previous specialist had recommended for another patient that I
had been treating with driving phobia and PTSD. Unfortunately we have been
unable to find anyone who actually provides this service. Anita eventually
changed to Lorne Peirce who she has continued her counselling with. Initially
she felt she was making some progress, but then she had the MVA on June 1, 2013
and Anita suffered a severe worsening of her anxiety and PTSD symptoms. She
could not cope with activities of daily living, could not perform any mental
tasks including paperwork or even remembering what she had done that day. She
felt extremely unsafe and remained in her husband’s presence in order to feel
safer and because she did not trust what her reactions would be. She presented
June 5, 2013 in a state of extreme agitation and I started her on cipralex 10
mg and prescribed her several Ativan to take during panic attacks. Anita was
very reluctant to take any medications. I referred her to the Rapid Access
Clinic for expedited psychiatric review. She developed extrapyramidal side
effects from the Cipralex and discontinued it. Dr. Brinks saw her at the Rapid
Access Clinic and diagnosed her with PTSD, panic disorder, Mood Disorder NOS,
and Specific Phobia. She started Anita on Sertraline which has had a good
effect at improving Anita’s mood, anxiety and functioning. The dose has
gradually been titrated up to 125 mg per day. Anita does report that the
medication causes her to be drowsy, and her depression symptoms are not
completely controlled. She has difficulties with motivation and finds it
difficult to force herself to do simple tasks around the house, or to do
administration tasks such as accounting/bookkeeping. Anita continues to
struggle with her PTSD, especially when driving or being in a car. Her symptoms
are now starting to regress, however she has suffered a great set back in terms
of her mental health. I have asked her to stop driving the pilot car as I feel
it puts her in situations with abnormal traffic patterns that increase her
likelihood of triggering her PTSD (i.e. August 16, 2013 she reported that a
semi-trailer “charged’’ at her because the driver was frustrated that he could
not pass her.) If her symptoms do not improve, I plan to increase her
sertraline to 150 mg per day.

[15]        
Dr. Kennedy believes that the plaintiff is presently incapacitated:

Anita is still quite
incapacitated by her mental health barriers. I believe her diagnoses include
PTSD, depression and anxiety, of which I think the PTSD is the most significant
problem. She is struggling to do her activities of daily living such as
housework and office work due to low mood, poor motivation and fatigue. She is
experiencing high levels of anxiety in public and reports having anxiety
attacks while driving. She is very frustrated that her anxiety/PTSD is
inhibiting her ability to perform mental tasks and driving. She complains of
poor memory and difficulties with mental tasks such as bookkeeping that she was
able to do prior to her accidents.

[16]        
Dr. Kennedy addressed the plaintiff’s employment prospects:

I believe that her depression is
currently inhibiting her from being gainfully employed doing clerical work. However,
I believe that with time, counselling and medication, Anita’s anxiety and
depression should improve sufficiently to allow her to do some part-time work
similar to what she was doing before (i.e. bookkeeping and some office work).
I expect that there will be times when her anxiety and depression will flare
from time to time and this may interfere with employment at those times. [Emphasis
added.]

[17]        
Dr. Kennedy addressed her general disability and its effect on the
activities of daily life:

I feel the PTSD is impairing
Anita’s ability to cope with her facial pain, and I feel the PTSD is [exacerbating]
her depression and anxiety symptoms, and complicating the treatment of her pain
and mood symptoms. Taken together, I believe her mental health and pain
symptoms have created a severe disability that is greatly impairing her
activities of daily living as well as her recreational, social and household
activities. I feel her pain and PTSD will be permanent and this will impair
these functions indefinitely, however I am hopeful that the severity will
decrease with time. At this point I cannot comment on how functional she will
be personally in the future.

[18]        
As described by Dr. Whetter, it was determined that surgery was required
on the plaintiff’s nose. Dr. Vance Tsai performed the surgery. He reported:

Surgery was performed on July 20, 2009. Intra-operative
progress was uncomplicated. Post-operative recovery was complicated by
epistaxis for which she had nasal packing. Nasal packing in this setting can
sometimes predispose to increased intranasal scarring. Further recovery has
been complicated by hyposmia and paresthesias in the upper palate and lip.

From a nasal/sinus perspective, she complains primarily of
three issues:

1. Numbness along the palate and upper lip.

This developed after her nasal operation. I would agree with
Dr. Javer’s opinion that “this is a common complication” due to injury to the
nasopalatine nerve. Now that it is more than four years since the onset, I
would conclude that this is unlikely to improve from here.

2. Hyposmia

I would also agree with Dr. Javer’s opinion
that it is difficult to interpret her current sense of smell since testing was
not performed prior to surgery and prior to the MVA. She did not complain
prominently of hyposmia prior to the operation though. Nonetheless, her
pre-operative nasal septal deviation and sinus inflammation is often associated
with hyposmia symptoms.

3. Rhinalgia, midface and peri-orbital
pain

These complaints existed prior to surgery
and were not improved by surgery. There is suggestion that surgery may have exacerbated
her situation as it improved nasal airflow and this can be an irritant. I would
suggest that this occurred to neurological pain fiber involvement secondary to
the MVA and potentially exacerbated by the nasal operation.

I would agree with the opinion from Dr. Javer that I would
not recommend any further treatment at this point. Given the trajectory of her
improvement or lack of improvement so far, I am afraid that her current
symptomatology will likely persist.

Psychiatric assessment by Dr. Anderson on Sep 22, 2011
suggested preferred psychiatric diagnosis of “chronic adjustment disorder with
mixed anxiety and depressed mood”. Further assessment from Dr. Semrau on May 30,
2012 quoted the following “The biggest thing is my nose. It doesn’t feel the
same.”.. . My nose doesn’t look the same. My dad and I had the same nose. Maybe
that’s why it bothers me so much. I don’t know why I can’t get past my nose.”

It is not common for her current
nasal symptoms to produce prominent occupation nor recreational disabilities.
Her hyposmia could become an issue with some activities such as cooking. Given
the psychiatric   reports provided, I think that further improvements could be
considered from this perspective.

[19]        
Dr. Javer observed:

Assessment and Impression:

It is obvious and unfortunate that the MVA on the 19^th
of September 2008 has left a lasting impact on Ms. Mosimann’s functioning and
on her life including her ability to work.

With respect to her sinonasal cavity, I can not find any
objective reason why she is having the feel of reduced oxygen going into her
lungs. Her nasal cavities look very open and healthy on endoscopy. The numbness
on the upper lip and palate is most likely due to injury to the nasopalatine
nerve that supplies this region and travels through the septum. This nerve is
often traumatized during septoplasty particularly if the septum requires
surgery at the level of the maxillary crest. This is a common complication and
may or may not resolve itself. It is hard to understand why Ms Mosimann has a
reduced sense of smell but since a previous smell test had not been done prior
to the surgery or prior to her MVA it is difficult to interpret this result. We
do not know what her smell test would have scored prior to the surgery or MVA.
Her midfacial pain and periorbital pain may very well be secondary to
neurological pain fiber involvement secondary to both the MVA and/or the
surgery although she did have pain prior to the operation. She states that her
nasal pain is now worse particularly in the cold and sometimes that can happen
if there is increased air entry into the nose. This is possibly happening
because her septum has been straightened and there is more air entering her
nose and her nerve endings in her nose are exposed to increased irritants and
is likely creating neurogenic pain particularly in a colder environment.

With respect to recommendation for further treatment; Ms
Mosimann does not need any further surgery to her nose or her sinuses since
everything looks quite healthy and functioning well from my perspective. I
would advise against any other surgical therapy. As far as medical treatment is
concerned she could use very conservative measures such as Vaseline in her nose
which will help humidify and moisturize the air as well as protect her nasal
cavities. She does not need any assistive devices.

Some patients have had success with using Capsaicin nasal
spray in their nose and this is something that she could certainly try in the
future if things don’t resolve. Another thing that maybe helpful for her is to
get formal allergy testing to see if she is indeed allergic to dust mites since
she can be taught and advised on preventative measures which may improve her
nighttime quality of life.

As far as her long term
prognosis is concerned I am afraid that she will probably continue to require
counseling with respect to her post traumatic stress disorder which I think
will most likely continue since this was a significant event in her life. With
respect to her nose, I suspect that she will continue to have sensitivity and
pain in her nose secondary to neurogenic pain. [Emphasis added.]

[20]        
It should be noted that there are several references among the treating
physicians to post traumatic stress and psychiatric factors. The plaintiff was
assessed by two psychiatrists for medical-legal purposes. Dr. Stephen D.
Anderson was engaged by the plaintiff, and Dr. Stanley Semrau was consulted by
the defence.

[21]        
Dr. Anderson summarized his findings following an attendance on
September 15, 2011 and an extensive review of the records, as follows:

11.    I would
like to make the following recommendations for further assessment and treatment
of Ms. Anita Mosimann:

I)      Ms. Mosimann requires further
psychotherapy with an experienced counsellor or psychologist. I suggest that
Ms. Mosimann and Mr. Wear continue to see their present counsellor, Ms.
Jane Byra, for another twenty sessions of cognitive behavioural therapy (CBT)
before re-assessing the need for further treatment.

II) Ms. Mosimann is
unlikely to benefit from a therapeutic dose of antidepressant medication at the
present time. She may require treatment with Ativan (anti-anxiety) medication
in future if she has severe panic attacks. I will defer opinion regarding analgesic
medication to physical medicine specialists.

III)    I suggest that
Ms. Mosimann have an updated assessment from an ENT specialist to determine
whether her nasal deformity could be ameliorated and whether her facial pain
and associated symptoms (dysosmia and rhinorrhea) could be reduced.

IV)    I suggest that
Ms. Mosimann be enrolled in a supervised exercise program. Regular aerobic
exercise may reduce her anxiety and depressive symptoms provided it does not
cause a worsening of her pain.

V)     I suggest that
Ms. Mosimann be assessed in her home by an occupational therapist to better
determine the effect that her injuries have had on her lifestyle, including
homemaking, sports and social activities.

VI)    Ms. Mosimann
requires a vocational assessment in order to develop a better understanding of
her long-term vocational prognosis.

12. Long-term
prognosis for Ms. Anita Mosimann, from a psychiatric point of view, is guarded.
It has been over three years since the first MVA occurred and Ms. Mosimann
continues to have significant emotional difficulties. I anticipate that Ms.
Mosimann will have a reduction of her anxiety and depressive symptoms over time
with further psychotherapy. However, Ms. Mosimann is emotionally vulnerable and
at risk of deteriorating in future if she is exposed to further trauma or if
her physical symptoms (e.g. facial pain) should worsen as she ages.
Ms. Mosimann’s vocational limitations are likely primarily due to her
physical symptoms following the September 19^th, 2008 MVA. I will
defer the prognosis of her physical symptoms to physical medicine specialist. [Emphasis
added.]

[22]        
Dr. Semrau interviewed the plaintiff on April 12, 2012. He also wrote a
very extensive report. His overview was as follows:

Overview of Opinion

This report deals with accidents which have occurred on the
following dates: September 19, 2008 and July 23, 2009. References below to
"the accident" should be understood to refer to the accident of
September 19, 2008 and it should be understood to be the reference point for
the descriptors "pre-accident", "post-accident", etc.

1.     Ms.
Mosimann’s pre-accident history does not include any significant prior mental
health problems.

2. As a
result of these accidents Ms. Mosimann has experienced significant vehicle
travel anxiety/avoidance and posttraumatic stress symptoms, now partially
recovered. These symptoms have been psychologically interwoven with physical
symptoms relating to a nasal injury from the first accident.

3.     Ms.
Mosimann has also developed some depressive and anxiety symptoms, mostly as a
result of these accidents, now also partially recovered.

4.     Ms.
Mosimann has sometimes complained of difficulties with memory and
concentration. These have been caused by pain and emotional factors. Ms.
Mosimann did not experience a brain injury in either of these accidents.

5.     The
mental health treatment provided to Ms. Mosimann has been generally appropriate
and somewhat helpful.

6. Future
mental health treatment for Ms. Mosimann should include further counseling,
mainly focused on the remaining posttraumatic stress symptoms.

7. Ms.
Mosimann’s mental health prognosis is good, in that she has already quite
significantly recovered and with further treatment, it is likely that most
remaining mental health symptoms will resolve.

8. Regarding
Ms. Mosimann’s work and educational capacities, any mental health symptoms
arising from this accident are no longer significantly limiting and are
unlikely to interfere in future either.

[Emphasis added.]

[23]        
Dr. Anderson saw the plaintiff again on August 22, 2013. His opinion on
that occasion was as follows:

Since last assessing Ms. Mosimann she was involved in a third
MVA on June 1^st, 2013. Ms. Mosimann had a marked exacerbation
of her anxiety and depressive symptoms following the third MVA. Her physical symptoms
did not worsen as a result of the third MVA. The June 1^st, 2013 MVA
was a minor MVA, from a physical point of view, but it significantly
exacerbated Ms. Mosimann’s emotional difficulties. Ms. Mosimann was still
recovering emotionally from the first two MVA’s when the third MVA occurred.
She had a significant setback in her emotional recovery as a result of the June
1^st, 2013 MVA.

When I previously interviewed Ms.
Mosimann in October 2009 and September 2011 she did not have sufficient
symptoms to warrant the diagnosis of a major depressive disorder. Ms.
Mosimann now has a major depressive disorder of moderate severity. Ms.
Mosimann’s “depressive symptoms” overlap with symptoms due to pain and anxiety
and include depressed mood (three to five out of ten), marked tearfulness,
hopelessness, helplessness, low self-esteem, weight gain, decreased libido
(likely partly due to medication side effects), cognitive impairment, reduced
energy, reduced motivation and drive, poor self-confidence, insomnia, social
withdrawal, decreased enjoyment of life, irritability and
self-consciousness/mourning regarding her nasal symptoms. [Emphasis added.]

[24]        
Dr. Semrau did not have an opportunity to see the plaintiff following
the third accident. He did, however, comment on Dr. Anderson’s most recent
report:

·       
I had previously reviewed the report of Dr. Anderson dated
September 22, 2011, in the process of preparing my May 30, 2012 report.

·       
Dr. Anderson notes that Ms. Mosimann was involved in a 3rd MVA on
June 1, 2013 and also states that she has experienced emotional/mood
deterioration, increased driving fears and required antidepressant medication
since then.

·       
Obviously I am not in a position to provide any independent
comments regarding the role which this latest MVA might have had with respect
to the evolution of Ms. Mosimann’s symptoms from the first 2 MVAs. However I
would say as a matter of general principle that exacerbation of Ms.
Mosimann’s particular prior symptoms following a subsequent MVA is entirely
unsurprising, so I have no particular reason to question Dr. Anderson’s
opinions in that regard.

·       
Dr. Anderson now diagnoses Ms. Mosimann as suffering from a Major
Depressive Disorder (page 6) and lists various symptoms consistent with such a
diagnosis. Again, I am unable to independently assess the current degree of
depression. However generally speaking, worsened depression would be
unsurprising under these circumstances.

·       
Dr. Anderson indicates that he is “largely in agreement” with
my own prior diagnoses of PTSD in partial remission and vehicle anxiety
(Anderson page 7). I agree with his agreement.

[Emphasis added.]

[25]        
Dr. Anderson testified that the plaintiff had significantly
deteriorated. He suggested that the prospect of long term progress was guarded,
and that the plaintiff would be susceptible to any further incidents of trauma.
He suggested the third accident may have been “the straw that broke the camel’s
back”. He acknowledged that the plaintiff is a rare case, given her apparent
pre-accident functionality.

IV

[26]        
I have recounted the medical evidence at considerable length because the
case is difficult, in some respects, to assess on the basis of the courtroom
evidence. Normally the court hears the plaintiff and the lay witnesses and
accepts those aspects of the medical evidence that are congruent with the
experiences described in-chief and tested on cross-examination. The plaintiff
presents as a person who is susceptible to major trauma over trivial events. Her
reactions seem quite out of proportion to her challenges, as do those of Mr. Wear.
It is apparent that they both live in a rather fraught atmosphere. I would have
been highly skeptical of the plaintiff’s claims, but for the strong medical
evidence, although it remains somewhat at odds with the impression left by the
plaintiff herself.

[27]        
Before the accident of September 19, 2008, the evidence is that the
plaintiff had managed the vicissitudes of life, of which she had had her share,
without resort to medical or therapeutic care. The accident was serious and
caused both Mr. Wear and the plaintiff physical harm. It was not, however,
life-threatening, given the difference in size between the vehicle which struck
them, which was demolished, and the truck in which they were riding.

V

[28]        
Although Dr. Whetter was somehow under the impression that the plaintiff
was wearing a seatbelt, it is clear that that was not the case. According to
Craig Lukar, a professional engineer who gave an opinion to the court, however,
the plaintiff would have suffered her facial injuries in any event, that is, even
she had been wearing seatbelt.

[29]        
Mr. Lukar’s analysis proceeded by using an exemplar vehicle (the one
involved In the accident was no longer available) and placing the plaintiff in
the passenger seat, demonstrating her position. It appears to be critical to
the analysis that the plaintiff is short and the seat is too long for her to
sit with her bottom all the way to the seatback without extending her legs.
That is not evident in the third of the photos put in evidence, where the
plaintiff appears to be seated comfortably back in the seat. Mr. Lukar
suggests that the photograph is deceiving in that regard. The sixth photo shows
the plaintiff apparently striking a part of the console, but from a position
well advanced from the back of the seat. The dashboard in front of the
passenger’s seat is significantly farther away than an instrument panel to the
left of the seat, which is what Mr. Lukar suggests the plaintiff struck.

[30]        
What the photographs did appear to show was that if the plaintiff was
sitting with a properly adjusted lap belt, even allowing for some stretching or
body compression that would allow the plaintiff to move forward, the arc of her
upper body would fall short of hitting the dashboard. In making this
observation, I am not substituting my own interpretation of the evidence for
that of Mr. Lukar. I am simply saying that despite his qualifications, Mr. Lukar
was not able to satisfy me that what he described displaced the inference the
court might have drawn without assistance. His suggestions were simply
unconvincing.

[31]        
The plaintiff’s counsel submitted that the court ought to accept Mr. Lukar’s
evidence on the basis that an adverse inference could be drawn from the
defendants’ failure to produce an expert report. That is not, in my view, a
proper approach to opinion evidence. While it may be risky, counsel are
entitled to rely on cross-examination and argument in relation to an expert
witness as with any other witness. The defendants referred to Lakhani v.
Samson, 1982 CarswellBC 2262, [1982] B.C.W.L.D. 1126, 70 B.C.L.R. 379 a
decision of McEachern C.J.S.C. at para. 3:

I reject the suggestion that
engineering evidence is required in these cases. The court is not required to
leave its common sense in the hall outside the courtroom and the evidence is
clear that upon impact in both cases the Plaintiff’s upper body was flung or
thrown forward striking the dashboard or the steering wheel. And common sense
tells me that the restraint of a shoulder harness would have prevented that,
and therefore some of the injury from having occurred.

[32]        
Sometimes experts state the obvious, in which case they are superfluous.
Sometimes they do not. On those occasions, it is up to the trier of fact to
decide whether the inference the expert invited has the authoritative force of
training or experience, or whether it is just not helpful. Having done my best
to assess Mr. Lukar’s surprising conclusion – that failure to wear a lap
belt would have made no difference in this face-hit-the-dashboard collision – I
am simply unable to say that I am persuaded that that is the correct inference.
I assess the plaintiff’s contributory negligence at 25%.

VI

[33]        
In the witness box, as I have said, the plaintiff gives the impression
of a person whose reactions to the events at issue in this trial are markedly
disproportionate. The first accident was serious and might have resulted in
significant trauma with a somewhat extended recovery period. The second was
certainly alarming. The impact occurred at a slow speed and the plaintiff’s
impression that their vehicle might be pushed over an overpass was objectively
an overreaction, but I accept that it was genuine.

[34]        
The third was utterly trivial, a bump from which no physical harm could
come. It is, however, as I have noted, Dr. Anderson’s view that this was “the
straw that broke the camel’s back”. As a result, he says she is now a chronic
psychiatric patient. Dr. Anderson suggested that the stress she has experienced
has triggered changes in her brain and that she now has a neurological disorder
that renders her permanently emotionally vulnerable. Virtually any stressful
road event could set her back and into counselling.

VII

[35]        
The plaintiff claims an income loss based on her disabilities to the
date of trial. She submits that this can be assessed on the basis that the
plaintiff could have earned an income at the rate of about $40,000 per year for
the periods of time she was not working due to the injuries. She submits that
the $12,000 per year she has been earning working with Mr. Wear should be
treated as mitigation.

[36]        
The records submitted by the plaintiff, particularly respecting what she
realized as a result of her divorce settlement and the sale of her business are
not very extensive, and do not appear to provide a complete picture of her
means. At the time of the first accident she was not working, having been laid
off from a labouring job with McDonald and Ross in January of 2008. It is work
of that kind that she projects as a past income loss to date of trial.

[37]        
Since the first accident the plaintiff has financed Mr. Wear’s
trucking business by buying vehicles and leasing them to his company through a
company of her own. She has been working with him in his business in the
office, riding in his truck as a personal secretary, and operating a pilot
vehicle. She earns $12,000 per month doing this, which is the same amount
Mr. Wear pays himself. The available records suggest that an aggressive
approach to expenses and depreciation may help to supplement the parties’
income and that they are, in fact, engaged in what amounts to a joint
enterprise. It is not particularly well-established whether the $12,000 is a
salary, or amounts to a form of splitting income. Mr. Wear’s evidence suggests
that the plaintiff does not do a great deal of work. It is apparent that he
works quite hard for the same amount he pays her, however.

[38]        
There is not much evidence that enables the court to gauge whether the
$12,000 is the best the plaintiff can do because she is out of the competitive
market for jobs, or whether it reflects a preference that is mutually
satisfactory to her and to Mr. Wear.

[39]        
The plaintiff also submits that she had a realistic prospect of earning
about $40,000 per year to age 65, which is a gross sum of $440,000. Subtracting
$12,000 per year, the plaintiff submits that her future income loss is about
$300,000.

[40]        
The plaintiff seeks costs of future care based on a report tendered by a
woman named Alison Henry. She provided pricing for various treatments that have
been recommended from time to time by various physicians. The plaintiff’s
submission is that the court is left to “crystal-ball estimates as to the
nature and extent that they will be required.” The submission is that this
exercise should result in an allowance of $50,000 under this head of damages.

VIII

[41]        
In this case, as in many personal injury assessments, there is evidence
of substantial improvement in the relatively early going. On March 3. 2010 Dr.
Whetter recorded that the plaintiff said she was 80-90% better in her physical
symptoms and “only” about 80% improved in her mental status. He also noted that
the plaintiff would “never completely recover from her post traumatic stress
disorder and will continue to be frightened at times in traffic, particularly
with oncoming headlights.” He noted that “she may continue to have nightmares.
It seems like she will also continue to have some sensitivity and pain in her
nose.”

[42]        
In light of the evidence in the trial, Dr. Whetter’s early assessment
was astute. The plaintiff’s self-assessment of her recovery from her physical
injuries to that point seems reasonable and in accordance with the evidence.
Dr. Whetter’s guarded prognosis about the plaintiff’s recovery from her post
traumatic stress disorder, however, was obviously more accurate than the plaintiff’s
contemporaneous self-assessment. Whatever use may be made of such percentage
estimates, the plaintiff clearly continued, and continues, to be vulnerable as
Dr. Whetter suggested she might be.

[43]        
The particular difficulty in assessing this case is that the series of
three accidents has, according to Dr. Kennedy, the family doctor who took over
from Dr. Whetter, and Dr. Anderson, the psychiatrist, resulted in ever
worsening consequences for the plaintiff, despite the fact that they were
events of diminishing seriousness.

[44]        
I think Dr. Anderson’s observation that the third accident was “the
straw that broke the camel’s back” may be useful for the purpose of locating,
for him, a low point in the plaintiff’s ongoing struggle with post-traumatic
stress disorder, but is of limited use in assessing causation. The plaintiff’s
condition by then was so fragile that she had a panic attack while she was
performing a simple cognitive test in Dr. Anderson’s office. Hearing an
ambulance siren was enough to cause her acute distress. It is quite clear that
by the time the plaintiff had reached the point at which the third accident
occurred she was vulnerable to very mild vicissitudes, which cannot fairly be
laid upon those who have otherwise caused her no harm whatsoever.

[45]        
The question arises as to whether there is any realistic prospect of
improvement in the plaintiff’s condition. Dr. Anderson gave the following
prognosis:

In summary, Ms. Mosimann has deteriorated emotionally since
she was last seen in September 2011. Ms. Mosimann’s preferred psychiatric
diagnoses at the present time would be a major depressive disorder of moderate
severity and posttraumatic stress disorder (PTSD). As I indicated in my last
report, Ms. Mosimann was emotionally vulnerable and at risk of deteriorating if
she was exposed to further trauma. Although the June 1^st, 2013 MVA
was minor, from a physical point of view, it caused a significant deterioration
in Ms. Mosimann’s emotional functioning.

Long-term prognosis for Ms. Mosimann remains guarded.
Despite further treatment and the passage of time, she will likely continue to
have anxiety and depressive symptoms and not return to her premorbid level of
emotional functioning. Ms. Mosimann also has ongoing physical symptoms. I
am deferring the etiology, diagnosis and prognosis of her physical symptoms to
physical medicine specialists. She has, however, been diagnosed with having
neuropathic pain by ENT specialists. I therefore suggest that Ms. Mosimann be
given a trial of medication for neuropathic pain such as Gabapentin or
Pregabalin. She may also benefit from treatment with low dose tricyclic
antidepressant medication at night (e.g. Nortriptyline).

Cognitively, Ms. Mosimann continues to have
concentration, memory and multitasking difficulties. She continues to score
below the normal range on routine cognitive screening (MOCA 24 out of 30). Some
of Ms. Mosimann’s cognitive difficulties may be due to English not being her
first language. Ms. Mosimann’s cognitive functioning likely deteriorates
at times when she has increased anxiety, depression, pain, fatigue and/or
general stress.

With respect to recommendations, Ms.
Mosimann will likely require ongoing psychotherapy with a registered
psychologist. She may require long-term supportive psychotherapy. Ms. Mosimann may also require treatment with antidepressant
medication on a long-term basis. As indicated in my last report, Ms. Mosimann
should also be enrolled in a supervised exercise program. Regular aerobic
exercise may improve her mood and reduce her anxiety. An occupational therapist
also needs to be involved in Ms. Mosimann’s care. Ms. Mosimann may benefit
from learning cognitive remediation strategies for improving her concentration
and memory and she may benefit from ergonomic interventions to reduce her neck
and shoulder pain. Finally, Ms. Mosimann requires a vocational assessment.
Ms. Mosimann completed an excavator operator course prior to the 2008 MVA
occurring but she would not likely be able to work at that job due to her
physical, cognitive and emotional difficulties. Ms. Mosimann’s vocational
options have narrowed significantly as a result of the three MVA’s.

Ms. Mosimann’s present emotional
difficulties are likely due to the MVA’s of September 19^th, 2008,
July 23^rd, 2009 and June 1^st, 2013. Ms. Mosimann did not
have a history of psychiatric illness prior to the 2008 MVA occurring. She was
able to cope well emotionally following the death of her first husband in a car
accident. Ms. Mosimann did not have driving fears until following the 2008 MVA.

As a result of her symptoms Ms. Mosimann
continues to have a decrease in the overall quality of her life. There also
continues to be a strain placed on her relationship with Mr. Wear due to her
emotional changes following the MVA’s (e.g.
irritability).

I trust this report may be of some help
in understanding Ms. Anita Mosimann and in providing direction for further
assessment and treatment. As indicated in my last report, the longer
psychiatric disorders last the less likely they are to remit with treatment.
Patients who have more than one disorder also have a much poorer prognosis. In
Ms. Mosimann’s case, she has at least two psychiatric disorders, major
depressive disorder and PTSD, in addition to having chronic pain. It is highly unlikely that Ms. Mosimann will return to her
premorbid level of emotional functioning despite further treatment and the
passage of time. Instead, she will likely continue to have anxiety and depressive
symptoms on a long-term basis and be at increased risk of deteriorating in
future if she is exposed to further trauma or if her physical symptoms (e.g.
facial pain) should worsen as she ages.

[Emphasis
added.]

[46]        
Dr. Semrau notes that he did not have the opportunity to see the
plaintiff following the June 2013 accident. He does however note particularly
in relation to Dr. Kennedy’s report of August 5, 2013 (see paras. 14-17 herein)
that:

·       
Most of the new information and opinions relate to clinical developments
since the June 2013 MVA. For the most part, none of this information appears
remarkable or inconsistent with the information or opinions provided by Dr.
Anderson.

·       
However various opinions are expressed regarding disability,
particularly at pages 7-8 [paras. 15-16 herein]. Upon general reading these
opinions appear quite strong in terms of degree of disability and not
necessarily in keeping with symptom severity, so raising concerns as to whether
they are clinically justified. However just as with Dr. Anderson’s report, my
lack of recent assessment of Ms. Mosimann, particularly since the June 2013
MVA, means that I am not really in a position to make properly independent
medical judgments on these issues.

[47]        
In May of 2012 Dr. Semrau had observed:

Ms. Mosimann’s mental health
prognosis for accident-related mental health symptoms is good, in that she has
already quite significantly recovered and with further treatment, it is likely
that most remaining mental health symptoms will resolve.

[48]        
Courts must be cautious in drawing conclusions about the medical
condition of the plaintiff from the limited perspective of one appearance in
the witness box, particularly when the court’s impression is at odds with the
weight of medical opinion. The plaintiff’s reactions to the second and third
accidents nevertheless seemed disproportionate, even allowing that the trauma
of the first might well be exacerbated by subsequent alarming events. At least
one of the doctors agreed that the trial itself was causing very significant
anxiety. Dr. Semrau noted that the plaintiff had reportedly suffered emotional
difficulties as a result of attending the examination for discovery.

[49]        
Dr. Anderson noted:

There was no evidence during the
assessment of conscious secondary gain or malingering.

[50]        
Dr. Semrau made a similar observation:

For the sake of completeness, I will note that there is no
significant basis for a diagnosis of:

·       
Malingering (though the possibility of some component of
malingering can never be fully ruled out in the context of litigation).

[51]        
In the witness box, the plaintiff displayed the kind of anxiety noted by
the physicians, as did Mr. Wear. There is, on the other hand, a body of
evidence that the plaintiff has been able to pursue a number of activities that
do not suggest the degree of disability urged upon the court. She has ridden
her motorcycle for pleasure and gone on a “zipline” at Whistler, both
activities that would cause anxiety (and avoidance) in a large segment of the
population quite apart from any trauma inducing event.

IX

[52]        
I cannot help but conclude that the plaintiff will improve if she can
learn to cope with her preoccupation with this accident. I do not accept Dr.
Kennedy’s bleak assessment of her future. The fact that the plaintiff has been
able to pursue activities that would strike many as dangerous or alarming is an
indication that she is sometimes able to let this preoccupation go. I say so
giving as much credence as possible to the plaintiff’s claims that she is much
less active now than she was before the accidents, and that her interest in
these things has diminished as her condition has worsened with the second and
third accidents. I think putting this litigation behind her will help her
considerably, and that a course of cognitive behaviour therapy should assist
the plaintiff in adopting coping strategies that will be beneficial. I accept
what I took to be Dr. Anderson’s view that “counselling” focussed on reliving
the events and offering sympathy will be of very little benefit.

[53]        
There is clearly a somewhat complicated relationship between the
plaintiff’s psychological injuries and her physical trauma. The plaintiff still
suffers some residual pain in her face and nasal area, and that pain – in fact,
just the sight of her nose, which is not objectively disfigured – brings
on associations that exacerbate her symptoms.

[54]        
Objectively, neither of the first two accidents were near-death events,
although I accept the medical evidence that the plaintiff experienced them as such,
and that the diagnosis of post-traumatic stress disorder is valid. The third
was, as I have said, trivial. The precipitating cause of the plaintiff’s pain
and suffering and loss of enjoyment of life was the first accident, and the
second was responsible for some exacerbation. I do not, for reasons I have
expressed, view the third accident in the same light. The plaintiff’s reaction
on that occasion is properly referable to the earlier accidents and not to the
operator of the third motor vehicle, despite his liability for the event. This
observation affects the attribution of damages but not the quantum.

[55]        
Doing the best I can, and recognizing that damages for pain and
suffering and loss of enjoyment of life are both retrospective and prospective,
I think the range of comparable cases is significantly higher than those
tendered by the defendants.

[56]        
The cases tendered by the plaintiff range between $80,000 and $130,000
or so. There is one at $255,000. The present case calls for significant
damages, but I must account for the prospect of improvement and functionality
when this litigation is behind the plaintiff.

[57]        
I take account of the factors set out in Stapley v. Hejslet, 2006
BCCA 34, 236 D.L.R. (4th) 19 at para. 46:

[46]     The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris (2004), 237 D.L.R. (4th) 193] that influence an award of
non-pecuniary damages includes:

(a)  age of the plaintiff;

(b)  nature of the injury;

(c)  severity and duration of pain;

(d)  disability;

(e)  emotional suffering; and

(f)  loss or impairment of life.

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

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

(h)  impairment of physical and mental abilities;

(i)  loss of lifestyle; and

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

[58]        
The plaintiff is in midlife and has suffered significant emotional
injuries which are integrated with the less serious pain and suffering arising
from her physical injuries in such a way as to amplify their effect. Her
injuries have affected her family and recreational life significantly but not
completely. Although the plaintiff was described by counsel as “stoic”, I do
not think I am likely to penalize her on that score.

[59]        
Doing the best I can on the evidence before me, I think the appropriate
level of damages for pain and suffering and loss of enjoyment of life is $120,000.

[60]        
I do not think the plaintiff has made a case on a balance of
probabilities that she has suffered the past income loss she claims. I do not
see the plaintiff’s election to effectively go into business with Mr. Wear as
mitigation, but as a choice she has made in that direction. It is possible that
had work been available in one of the occupations she was capable of pursuing,
she would have taken such a position, but there is not much evidence that there
were such opportunities, or whether they would have been full or part time or
of long duration. I accept that the plaintiff has not been capable of working
in those kinds of occupations for much of the time since the first accident but
do not accept that damages is a simple matter of projecting a $40,000 per
annum loss through that period. I think work of the kind she had been doing
would probably have been sporadic.

[61]        
I do not think there is much reason to doubt that the plaintiff would
have ended up doing what she is presently doing, given the nature of the
relationship, her available means, and Mr. Wear’s need to raise capital. She
has shown some entrepreneurial initiative in the past and I think that investing
in Mr. Wear and then keeping an eye on that investment is probably what she
would have done in any event. On the basis that something might have come up
had she been in a position to take a position suitable to her past experience
and training, and that her going into business with Mr. Wear might have been
postponed somewhat, I allow $40,000 for past income loss.

[62]        
The plaintiff has lost some part of her work capacity, judged as a
capital asset. She is currently in business with Mr. Wear, but there are a
number of foreseeable contingencies that might cast the plaintiff back on those
residual capacities, including the failure of the business, or the
relationship, or both. I accept the statement of the law contained in Rosvold
v. Dunlop, 2001 BCCA I, 84 B.C.L.R. (3d) 158 at paras. 8-9, per Huddart
J.A.:

[8]     An award for loss of earning capacity is based on the
recognition that a plaintiff’s capacity to earn income is an asset which has
been taken away: Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; Parypa v. Wickware (1999), 65 B.C.L.R. (3d) 155 (C.A.).
Where a plaintiff’s permanent injury limits him in his capacity to perform
certain activities and consequently impairs his income earning capacity, he is
entitled to compensation. What is being compensated is not lost projected
future earnings but the loss or impairment of earning capacity as a capital
asset. In some cases, projections from past earnings may be a useful factor to
consider in valuing the loss but past earnings are not the only factor to
consider.

[9]     Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458.
Possibilities and probabilities, chances, opportunities, and risks must all be
considered, so long as they are a real and substantial possibility and not mere
speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[63]        
I also accept the observations in Perren v. Lalari, 2010 BCCA 140
at para. 32:

[32]   A plaintiff must always
prove, as was noted by Donald J.A. in Steward [Steward v. Berezan,
2007 BCCA 150], by Bauman J. in Chang [Chang v. Feng, 2008 BCSC
49], and by Tysoe J.A. in Romanchych [Romanchych v.
Vallianatos, 2010 BCCA 20], 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 [Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], or a capital asset approach,
as in Brown [Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353].  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 [Pallos v. Insurance
Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260] and Romanchych.
[Underline emphasis in Perren.]

[64]        
Taking account of the plaintiff’s age, the level of difficulty she might
experience in the market place in any event, her capacities, the effects of
aging, and the mathematics of present value, I assess future income loss at
$100,000.

[65]        
I think future cost of care is limited to the amount required for
cognitive behavioural therapy and some occasional pain medications. I fix
$20,000 for costs of future care.

[66]        
Special damages are allowed at the amount claimed, $13,255.40. While I
think there may have been a fair amount of unhelpful therapy included in those
expenditures, I do not think I should fault the plaintiff to date for her
efforts to find assistance. I expect that time and more focussed therapy will
help her improve in the future.

[67]        
I apportion 90% of the damages to the first accident and 10% to the
second. I attribute no damage to the third accident for the reasons I have
expressed.

[68]        
The damages I have fixed are subject to the deduction I have indicated
for the plaintiff’s failure to wear a seatbelt. The apportionment I have
directed between the two accidents takes account of the net effect of the
contributory negligence deduction. I think it artificial and unnecessary to
parse the allocation of damages by breaking the figures down to 75% of a
percentage of a large fraction of damages (90%) and 100% of a small fraction of
damages (10%).

[69]        
Costs may be spoken to if the parties are unable to agree.

“McEwan J.”

_____________________________

The Honourable Mr. Justice McEwan