IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140602

Docket: M140655

Registry:
New Westminster

Between:

Sarah May Gallina

Plaintiff

And

Honda Canada
Finance Inc., Wai Kin Kwan,

Tom Kwan and Li Bo
Cao

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Gallina was injured in a motor vehicle accident on March 5, 2010,
when an oncoming car hit her van head-on. Mr. Tom Kwan was the driver of the
car and admitted liability for causing the accident. Honda Canada Finance Inc.,
as lessor, and Wai Kin Kwan, as lessee, accepted vicarious responsibility for
the accident. Ms. Gallina discontinued her claim against Mr. Cao, whose car
struck the rear of her van moments after the collision with Mr. Kwan.

[2]            
Ms. Gallina’s claim for damages proceeded to a four-day trial subject to
Rule 15-1 of the Supreme Court Civil Rules, the “Fast Track
Litigation” Rule. Ms. Gallina claims that as a result of the accident, she
suffers right hip and low back pain which limits her ability to work and engage
in activities she pursued prior to the accident.

[3]            
At the time of the accident, Ms. Gallina was on maternity/parental leave
from her job with Canada Post as a letter carrier in Surrey, B.C. Ms. Gallina
claims loss of housekeeping capacity, non-pecuniary damages, past wage loss,
future lost earning capacity, special damages, and cost of future care.

[4]            
The expert evidence consisted of evidence from Ms. Gallina’s treating
family doctor, and from consultant orthopaedic surgeons, one on behalf of Ms.
Gallina and the other on behalf of the defence. Neither side called evidence
from a functional capacity evaluator, a vocational consultant, or an economist.

[5]            
The issues are as follows:

a)    What injuries
did Ms. Gallina suffer in the accident?

b)    To what extent
if any will Ms. Gallina be restricted in her work and personal life as a result
of her injuries?

c)     Should Ms.
Gallina’s award be reduced because she failed to apply to Canada Post to
accommodate her in the workplace?

d)    Should Ms.
Gallina’s award be reduced because she did not obtain all the physiotherapy
which was suggested to her?

e)    What is the
appropriate award for each head of damages?

FACTS

a)   
Before the accident

[6]            
Ms. Gallina was born in April 1975. She finished high school in Richmond,
B.C. in June 1993. She then travelled to Australia for a year, working as a
waitress and bartender. She returned to the lower mainland in early 1995, and
worked primarily in the service industry as a waitress and bartender, holding
up to four jobs at one time.

[7]            
In 1997, Ms. Gallina returned to school to upgrade her education.
Starting in the fall of 1998, she attended a two-year program in horticulture at
the Langley campus of the institution then known as Kwantlen College. Ms.
Gallina chose horticulture because she likes to be outdoors.

[8]            
Ms. Gallina supported herself and paid her own way during her
horticulture program. She worked at golf courses in the summer breaks from that
program and also continued to work part-time in the service industry. She suffered
a whiplash injury in 1999 but did not miss any time from work, and her injuries
resolved within about a year.

[9]            
Ms. Gallina graduated in May 2000 with a certificate in horticulture.
She quickly obtained a position as assistant superintendent at a golf course in
Coquitlam which was under construction. This position included a significant
amount of physical work, including using manual lawn mowers until the grass was
sufficiently developed to withstand heavier machines. She remained in this
position for about a year.

[10]        
Ms. Gallina began dating her future husband, Mr. Gallina, in the summer
of 2000. He and Ms. Gallina enjoyed an active life, including baseball, snow-boarding,
hiking, and golf.

[11]        
As well as working at the Coquitlam golf course, Ms. Gallina continued
working in restaurants.

[12]        
In the fall of 2001, Ms. Gallina started working for the City of
Richmond parks and recreation department. This work was similar to her work at
the Coquitlam golf course, although she did not cut putting greens. She was
laid off from the City of Richmond position in the late fall of 2001. She
continued working in restaurants when she was working at the City of Richmond,
and when laid off from the City of Richmond, she worked longer hours in
restaurants.

[13]        
Ms. Gallina injured her shoulder in 2001 and missed about two months of
work.

[14]        
In the spring of 2002 Ms. Gallina was re-hired by the City of Richmond
to do similar work as in the previous year.

[15]        
Ms. Gallina married Mr. Gallina in June 2002. She continued working at
the City of Richmond until she was laid off again around November 2002.

[16]        
Ms. Gallina and her husband decided they would move to Whitehorse,
Yukon. Mr. Gallina had lived there previously, and both he and Ms. Gallina were
interested in the outdoor life available in Whitehorse. Both Ms. Gallina and
her husband obtained jobs in Whitehorse prior to the move. Ms. Gallina’s job
was a bartending job at a Whitehorse curling club.

[17]        
Ms. Gallina worked at the curling club over the fall of 2003 and into
early 2004. The Gallinas did lots of activities together, including golf,
broomball, and curling.

[18]        
In the spring of 2004, Ms. Gallina secured a position at the
Mountainview Golf Course in Whitehorse as an assistant superintendent. This
position included a significant amount of physical work. Ms. Gallina worked at
this job from the spring of 2004 until the late fall of that year.

[19]        
In the period from the fall of 2004 until the spring of 2005, Ms.
Gallina again worked at the curling club, and also worked for a catering
company.

[20]        
In the spring of 2005, Ms. Gallina again worked for the Whitehorse golf
course.

[21]        
Ms. Gallina took her first maternity/parental leave starting in
September 2005. Ms. Gallina’s first child, a daughter, was born in Whitehorse
in November 2005.

[22]        
In the late summer of 2006, when her daughter was less than a year old,
Ms. Gallina obtained a permanent part-time position in Whitehorse with Canada
Post. This position involved work both as a letter carrier and inside clerk.
This position involved a minimum of 20 hours of work each week, and usually
over 25 hours each week.

[23]        
Mr. Gallina’s work contract finished in 2007 and he and Ms. Gallina
re-evaluated their situation. They decided they wanted to live closer to their
extended families in the lower mainland. They thought the drive from Kamloops
to the lower mainland would not be too far, and that in Kamloops they would
still enjoy a more rural setting than in the lower mainland. Ms. Gallina was
able to obtain a position with Canada Post in Kamloops as a postal clerk.

[24]        
The Gallinas moved to Kamloops in April 2007 and Ms. Gallina commenced
her Kamloops job with Canada Post. Mr. Gallina found work in Kamloops a couple
of months after the move.

[25]        
Ms. Gallina worked as a postal clerk at Canada Post in Kamloops from
April 2007 until May 2008. That position included sorting mail and dealing with
magazines.

[26]        
Around February 2008, Ms. Gallina was pregnant with her second child.
Ms. Gallina’s doctor suggested to her that she should not carry heavy boxes and
pallets. Ms. Gallina’s supervisor observed people helping Ms. Gallina when it
was not their job to do so, and suggested to Ms. Gallina that she seek
accommodation at the workplace. Ms. Gallina requested accommodation.

[27]        
Canada Post agreed to accommodate Ms. Gallina for the period from February
13, 2008 until March 28, 2008. Canada Post modified her duties by limiting the
weight of items she was required to lift, limiting her periods of standing to 2
hours maximum without break, allowing her to avoid pushing and pulling heavy
loads, and allowing her to rotate duties to minimize prolonged periods of
repetitive upper arm activity and frequent forward bending.

[28]        
Ms. Gallina stopped working in her Kamloops Canada Post job on April 20,
2008, and began her second maternity/parental leave. Canada Post paid her full
salary for the first two weeks of the leave, when Employment Insurance (“EI”)
does not provide benefits. For the following 15 weeks, when EI provided about
90% of her salary, Canada Post “topped up” her salary, by paying Ms. Gallina
the difference between the amount paid by EI and her salary.

[29]        
The Gallinas’ second child, also a daughter, was born in May 2008.

[30]        
The Gallinas found that Kamloops was still further from their extended
family than they wished to live and they decided to move to the lower mainland.
Ms. Gallina obtained a transfer within Canada Post to a position in Surrey,
B.C.

[31]        
In March 2009, Ms. Gallina and her family moved to Richmond, B.C. They renovated
and lived in a suite in the basement of the home of Mr. Gallina’s parents. Ms. Gallina
commenced work on March 23, 2009, as a full time letter carrier for Canada Post
in Surrey, B.C. At that time, the Gallinas’ second child was less than a year
old.

[32]        
Ms. Gallina worked for Canada Post in Surrey from March 23, 2009 until
early July 2009. She worked 40 hours per week as a fulltime letter carrier.
Among the benefits was extended medical benefits. Canada Post’s extended health
program offers treatments including unlimited physiotherapy, and the plan pays
80% of the costs.

[33]        
Mr. Gallina’s mother passed away suddenly in July 2009, and Ms. Gallina
took a bereavement leave.

[34]        
The Gallinas’ third child, also a daughter, was born in late August
2009. Ms. Gallina was on various leaves from Canada Post during the period from
July to late August 2009, being bereavement leave, sick leave, and vacation
leave.

[35]        
On August 29, 2009, Ms. Gallina commenced her third maternity/parental
leave, and it was scheduled to last one year. Again, Ms. Gallina chose to have
Canada Post top-up her EI maternity leave benefits for the first 17 weeks of
maternity leave. The “Maternity Leave Agreement Form” set out in the collective
agreement between Canada Post and Ms. Gallina’s union provides that Ms. Gallina
must return to work and remain in Canada Post’s employ for at least six months
“unless, for reasons beyond her control or as set out elsewhere in this
collective agreement, the employee is unable to do so.” It provides that if the
employee fails to return to work and remain in Canada Post’s employ as required,
Ms. Gallina “further agrees that she is indebted to [Canada Post] for the
amount received as maternity leave allowance and will repay such amount.”

[36]        
Following the 17-week period, Ms. Gallina was entitled to a further 37
weeks of EI benefits, ending September 12, 2010.

[37]        
Before the accident, Ms. Gallina was a physically active person. Her
work as a letter carrier required her to walk for long periods. She went on
long hikes, often for hours. She played golf and softball and went
snowboarding. She had recovered from her whiplash and shoulder injuries and was
in good health. She was still losing weight after her third pregnancy and was
just a few pounds heavier than her usual weight when she was not pregnant or
following a recent birth.

b)   
Accident on March 5, 2010

[38]        
On March 5, 2010, Ms. Gallina was 34 years old and on maternity/parental
leave from her Surrey letter carrier position. At around 5 p.m., she was
driving her 2008 Dodge Caravan van southbound on No. 4 Road in Richmond between
Alderbridge and Westminster Highway. Ms. Gallina’s two youngest daughters were
in car seats in the back seat. One child was about two years old and the other
was about six months old. The children were properly strapped into their car seats
and Ms. Gallina was wearing her seatbelt. Mr. Kwan was driving a 2007 Honda
Civic car on No. 4 Road northbound.

[39]        
Mr. Kwan’s car crossed the centre lane and was veering towards Ms.
Gallina’s van. Ms. Gallina could see that Mr. Kwan was not paying attention and
she yelled and honked to encourage him to pay attention. However, Mr. Kwan’s
vehicle struck the driver’s side front of Ms. Gallina’s vehicle. The airbag did
not deploy in Ms. Gallina’s vehicle but one in Mr. Kwan’s car did deploy.

[40]        
Ms. Gallina’s vehicle was then struck from the rear by Mr. Cao’s vehicle,
but that collision did not cause much damage.

[41]        
There was significant damage to both Ms. Gallina’s and Mr. Kwan’s
vehicles. Mr. Kwan’s vehicle was written off as being an obvious total loss. Ms.
Gallina’s vehicle was not driveable following the accident. It was repaired at
the cost of about $14,500.

c)   
After the accident

[42]        
Immediately after impact, Ms. Gallina’s whole right side and head hurt
and her neck was sore.

[43]        
Ms. Gallina’s first concern following the accident was for her two youngest
daughters who were in the back seat. They were screaming and Ms. Gallina tried
to calm them down.

[44]        
An ambulance attended at the scene and the attendants examined the
children. They offered to take Ms. Gallina to hospital but she declined so that
she could stay with her children. Mr. Gallina’s father was nearby and he came
to the accident site, and later Mr. Gallina arrived. Ms. Gallina’s vehicle was
towed away and the adults settled the children down. Ms. Gallina and her
father-in-law went to collect the Gallinas’ oldest daughter.

[45]        
Later in the evening of March 5, 2010, after the children were at home
and calmed down, Ms. Gallina went to the emergency ward of Richmond General
Hospital. Her head was very sore. She complained of chest pains and had a chest
x-ray. She was prescribed Tylenol 3 for pain relief and took some. Normally she
avoids drugs like that because she reacts to them strongly. Normally she would
just take something like ibuprofen.

[46]        
On March 8, 2010, three days after the accident, Ms. Gallina saw her family
doctor, Dr. Hu. She complained of pain in the right side of her body, including
her chest and jaw and neck and headache and pain in her right lower back and
some mid back discomfort. She had bruising on her right hip which was the size
of a hockey puck. Her right elbow was sore and her right arm was intermittently
numb. She had difficulty eating at first. The pain was worse on the right side.
Her chest pain seemed to have diminished from the night of the accident. Dr. Hu
suggested physiotherapy, massage therapy, and ibuprofen.

[47]        
Ms. Gallina saw Dr. Hu again on March 10, 2010, at which time she
thought her pain improvement was about 50%.

[48]        
Ms. Gallina commenced physiotherapy on March 10, 2010, and continued for
about two months, until mid-May 2010. Ms. Gallina also had massage therapy in
April 2010. Ms. Gallina found that ibuprofen and the treatments improved her
neck and jaw, but her hip and low back continued to hurt. She found it painful
to hold her youngest child for breastfeeding.

[49]        
Ms. Gallina went for a long walk a couple of weeks following the
accident but found it very painful.

[50]        
On June 4, 2010, Ms. Gallina saw Dr. Hu again. She told him that she was
having discomfort in her right hip, and that she thought there was periodic
clicking in the joint. The pain was intermittent, hurting more some days than
others. Dr. Hu suggested that Ms. Gallina continue physiotherapy, but she did
not do so at that time owing to financial concerns.

[51]        
The Gallinas decided to return to Whitehorse and Mr. Gallina obtained a
job there. The Gallinas moved back to Whitehorse in July 2010. They bought a
house there and they were living in it at the time of the trial.

[52]        
At the time of the move back to Whitehorse, Ms. Gallina was still on maternity/parental
leave from her position as a letter carrier for Canada Post in Surrey. Her
maternity/parental leave remained in effect until September 2010.

[53]        
Ms. Gallina asked Canada Post to transfer her to Whitehorse. Canada Post
was not able to find a position for her there until it found a route for her
starting in February 2011.

[54]        
With Ms. Gallina’s third maternity/parental leave ending September 12,
2010, and the Whitehorse position not starting until February 2011, Ms. Gallina
did not want to fly from Whitehorse back to Surrey to report for work.

[55]        
Ms. Gallina sought and obtained a “care and nurturing” leave commencing
September 12, 2010. This unpaid leave is available for up to five years or when
the worker’s youngest child is in school, and enables the worker to maintain
his or her position. During this unpaid leave, Canada Post is not responsible for
providing the worker with extended health benefits, but a worker can maintain
the benefits, and reimburse Canada Post for the premiums on return to work.
When the worker is working, Canada Post pays about 90% of the premiums for
extended health coverage.

[56]        
Ms. Gallina’s upper body injuries resolved within about six months of
the accident, being by about the fall of 2010. However, she continued to
experience significant hip and lower back pain, particularly after walking. Her
hip would sometimes click.

[57]        
In October 2010, Ms. Gallina went to the clinic of Dr. Gudapati in
Whitehorse. Dr. Gudapati had been Ms. Gallina’s family doctor when she had
lived in Whitehorse in 2005 through 2007. Dr. Gudapati was not available and
Ms. Gallina instead saw Dr. Tadepali, who is Dr. Gudapati’s husband and
practices medicine with her. Ms. Gallina complained of ongoing right hip pain
and a sore lower back, that her hip would click, and that sleeping was painful.
Dr. Tadepali suggested more physiotherapy.

[58]        
Ms. Gallina did not resume physiotherapy right away, primarily because
of the expense. She apparently did not know that Canada Post would pay for the
physiotherapy treatments. In addition, there is a waiting list in Whitehorse
for physiotherapy treatments of one to several months.

[59]        
Ms. Gallina’s Canada Post transfer was not effective until February
2011, but the family needed more income, and in January 2011 Ms. Gallina
started working at night in Whitehorse for a company called “Outside the Cube
Management Consulting”. Ms. Gallina initially did mostly data entry work, and
then did an increasing amount of bookkeeping work. This sedentary job permitted
her to get up and move around if she began feeling sore. She started working for
$15 per hour and for 10 hours a week. She worked nights so that her husband,
who worked days, could care for the children when she was working, and the
family would not incur an expense for childcare.

[60]        
In February 2011, Ms. Gallina was still finding it painful to stand and
to walk long distances. She found that walking or doing physical work caused
her hip pain to flare and then her low back would start to hurt.

[61]        
Ms. Gallina did not report to work at Canada Post in February 2011 because
she did not believe that she could do the job. She believed that she could not do
the walking, standing or carrying required without pain flaring in her right
hip and then her lower back. She did not ask Canada Post to accommodate her
restrictions at the workplace.

[62]        
Ms. Gallina wanted to return to her Canada Post job at that time, and
would have done so if she had not been injured. Ms. Gallina had been looking
forward to returning to working outdoors and as a letter carrier. Had Ms.
Gallina returned to work at Canada Post, she would have been entitled to a base
rate of $24.74 per hour for a 40 hour work week plus additional pay relating to
the Whitehorse location of $2.82 per week, plus benefits including pension.
Without considering pension, that is equal to $27.56 per hour, $1,102.40 per
week, and $57,324.80 per year.

[63]        
Ms. Gallina testified that the type of accommodation she received in
2008 when she was pregnant with her second child would not enable her to do her
job as a letter carrier. She testified that she did not know of an
accommodation that would allow her to do the job, because her job essentially
consisted of standing, walking, and lifting.

[64]        
In February 2011, Ms. Gallina cancelled her extended health care plan
benefits from Canada Post while on her “care and nurturing” leave.

[65]        
Ms. Gallina saw Dr. Gudapati in March 2011 and received a referral for
physiotherapy. She also went for an x-ray, which did not disclose any joint or
bone abnormality.

[66]        
In April 2011, Ms. Gallina started physiotherapy at Physio Plus in
Whitehorse. She received a total of 11 physiotherapy treatments over the period
of about 18 months until around December 2012. Ms. Gallina did not request
benefits from Canada Post. At the time, she was not eligible for extended
health benefits, because she had discontinued them a couple of months earlier. Ms.
Gallina would have attended more sessions in this period if she had had the
money to pay for the treatments. She found that her situation improved with
treatment, but then reverted.

[67]        
In mid-April 2011, Mr. Philipps, Ms. Gallina’s treating physiotherapist
at Physio Plus, suggested to Dr. Gudapati that Ms. Gallina undergo an MRI study
to investigate whether she had a labral tear. Dr. Gudapati referred Ms. Gallina
for an MRI in Vancouver, because there is no MRI machine in Whitehorse. The MRI
was not available in Vancouver for about eight months. During that period, Dr.
Gudapati did not suggest any further investigation of Ms. Gallina’s problems.

[68]        
Some of the Physio Plus notes refer to Ms. Gallina failing to do all the
suggested exercises. Ms. Gallina did as much as she felt she could handle, but
missed some days.

[69]        
By around June 2011, Ms. Gallina was experiencing pain less frequently
than daily.

[70]        
The MRI Arthrogram study of Ms. Gallina’s hip occurred in December 2011 in
Vancouver, B.C., and did not disclose any objective injury. The procedure
included injecting an anesthetic into Ms. Gallina’s hip cavity, but that did
not appear to relieve Ms. Gallina’s pain. Counsel advised that Yukon Health
covered Ms. Gallina’s airfare, and that she stayed with family and thus did not
incur accommodation costs.

[71]        
Ms. Gallina’s gross earnings in 2011 from Outside the Cube were $6,684.00.
Canada Post workers were on strike at some point in 2011, but the evidence did
not establish when or for how long.

[72]        
In February 2012, Dr. Gudapati suggested that Ms. Gallina continue with
physiotherapy as needed, and suggested that she see Ms. Robinson, a physiotherapist
who Dr. Gudapati thought was particularly well-suited to treat Ms. Gallina’s
problems. Ms. Gallina did not start treatments at that time.

[73]        
In March 2012, Ms. Gallina received a raise to $20 per hour from Outside
the Cube. Despite that raise, the family felt financial pressures and
remortgaged their home.

[74]        
Ms. Gallina’s hourly rate at Outside the Cube increased to $22 in May
2012. At that time she started working at least 20 hours each week.

[75]        
In August 2012, Ms. Gallina started working in the daytime at Outside
the Cube.

[76]        
The amount of Ms. Gallina’s total gross earnings in 2012 was $18,934.82.

[77]        
In February 2013, Ms. Gallina commenced physiotherapy with Ms. Robinson.
Ms. Gallina found that the treatments helped, but she was concerned about the
expense of $70 per treatment. Ms. Robinson recommended that Ms. Gallina attend
group Pilates sessions led by Ms. Robinson as a way to achieve some benefits at
a lower cost than physiotherapy treatments. Ms. Gallina started attending those
sessions for $20 per session, and feels they have helped her.

[78]        
In March 2013, Outside the Cube began paying Ms. Gallina $23 per hour.

[79]        
In May 2013, Ms. Gallina was examined by two orthopaedic surgeons, one
being Dr. McKenzie as requested by Ms. Gallina’s counsel, and the other being
Dr. Boyle as requested by defence counsel. The reports of those experts is
discussed below. Both recommended that Ms. Gallina have a bone scan to try to
determine the cause of the lower back pain. That test is contraindicated for
women who are pregnant. Ms. Gallina did not have this test prior to trial
because of her pregnancy with her fourth child.

[80]        
In August 2013, Mr. Gallina’s father, who is widowed and retired, moved
to Whitehorse. He lives in a suite in the Gallinas’ home and helps with the
children, not only allowing the children to have lots of contact with their
grandfather, but also avoiding the cost of daycare when both Ms. Gallina and
her husband are working.

d)   
At the time of trial

[81]        
On the third day of the trial, the defence applied to call a witness who
was not listed in the defence’s witness list in its November 2013 trial brief.
The additional witness was Mr. Gill, a Canada Post manager. Ms. Gallina
objected to evidence from this additional witness, both on the basis that the
witness ought to have been listed earlier pursuant to the rules of court, and
on the basis that Ms. Gallina would be prejudiced because she had returned to
Whitehorse and was not available to observe the testimony and instruct counsel.
I ordered that the defence was permitted to call Mr. Gill to testify, but only
on the basis that Canada Post arranged and paid for video-conferencing so that
Ms. Gallina could observe the evidence from Whitehorse. Mr. Gill testified and
Ms. Gallina was linked by video-conference.

[82]        
Mr. Gill is the manager of Canada Post’s occupational abilities
management group for the Pacific Region, consisting of B.C. and the Yukon.
Among Mr. Gill’s duties is ensuring that Canada Post meets its duties to
accommodate disabilities, which duties are set out in the collective agreements
and in legislation. Essentially, Canada Post is expected to accommodate
disabled employees to the point of undue hardship to Canada Post.

[83]        
Canada Post’s accommodation process begins when a worker identifies that
he or she needs accommodation. Canada Post then works with its third party
disability insurers, who have access to a worker’s medical information, to
obtain an outline of the worker’s limitations. Canada Post then works with
bargaining agents to identify an appropriate accommodation that would be both
productive and meaningful. Canada Post starts by looking for opportunities in
the worker’s existing position, and then expands the search progressively, to
other facilities and other sections, sometimes across the country.

[84]        
For example, Canada Post can look for letter carrier routes with less
walking time, and for internal processing jobs which do not require outside
work. It is unlikely to find a letter carrier position which involves walking
time of as little as 15 minutes without breaks, but there might be a route
using a vehicle for delivery which would do so. Canada Post can also use
assistive devices to reduce the need for the worker to do heavy lifting.

[85]        
Mr. Gill did not know if it would be possible to accommodate a letter
carrier in Whitehorse who had limitations on walking, standing, and lifting.

[86]        
At the time of trial, Ms. Gallina was continuing to work 20 hours a week
during the daytime in the office job at Outside the Cube. She does not have
medical, dental, or pension benefits in that job, and receives 2 weeks annual
holiday pay, in contrast to the 3 weeks of holiday available to her at Canada
Post. Outside the Cube does not offer overtime opportunities, in contrast to
Canada Post, which offers frequent opportunities to work overtime in
Whitehorse.

[87]        
Ms. Gallina’s total gross earnings in 2013 to the time of the trial was
$13,082.39.

[88]        
At the time of trial, Ms. Gallina was expecting her fourth child. Counsel
advised that the child was due in April 2014. If Ms. Gallina had been working
at Canada Post, she would have sought the top-up payments that she received
relating to the birth of her second and third children. Outside the Cube does
not offer such a top-up payment, and Ms. Gallina would only be entitled to EI
maternity benefits of 45% of her part-time earnings.

[89]        
At the time of trial, Ms. Gallina was anticipating that she would return
to work at Canada Post at the conclusion of the “care and nurturing” leave. If
and when she returns to work at Canada Post, she would be required to pay back
some of the maternity leave top-up payments.

[90]        
At the time of trial, Ms. Gallina was continuing to have periodic pain
in her right hip. The pain will flare after prolonged walking, prolonged
standing, certain sleeping positions, carrying her children, and with changes
in weather. Ms. Gallina does not notice the pain as often as daily, but she
tries to forget about the pain. She can walk for about an hour or an hour and a
half, but suffers pain afterwards. When the right hip pain is aggravated, she
often suffers right low back pain as well. She uses ibuprofen periodically for
pain but not often. She sometimes limps.

[91]        
Ms. Gallina is presently far less active than she was prior to the
accident. She can go on hikes for up to an hour but then suffers pain. She goes
on far fewer long walks with her husband and children than she did prior to the
accident, and she misses both the activity and the time with her family. Mr.
Gallina and the children often go hiking or skiing without her while she rests
at home. Ms. Gallina no longer plays baseball or goes snowboarding. She tried
baseball one weekend and suffered significant pain. She has golfed a little but
is only playing 9 holes no more than once a week, rather than the 18 holes she
played previously. She no longer does any gardening at the home, even though
she loves gardening.

[92]        
Ms. Gallina has gained about 20 pounds. She is often exhausted at the
end of an active day. She expects to have difficulty holding her fourth child
for breast-feeding.

[93]        
Mr. Gallina has assumed some of the housekeeping and child-rearing tasks
which Ms. Gallina did before the accident. Ms. Gallina finds that if she does
any vacuuming or standing and making lunches she will suffer pain. Mr. Gallina
has taken over making lunches for the children and cleaning their rooms. He
also does vacuuming and mopping.

[94]        
Ms. Gallina claimed $2,873.48 in special damages, consisting primarily
of fees for physiotherapy and massage therapy, but also including some
medication, childcare costs and Pilates and yoga fees.

e)   
Expert Evidence

[95]        
Ms. Gallina called the evidence of two doctors: Dr. Gerard McKenzie, an
orthopaedic surgeon, and Dr. Gudapati. Dr. McKenzie examined Ms. Gallina and
her medical records and prepared a report. Dr. Gudapati is Ms. Gallina’s
treating family doctor and also prepared a report. The defence called the
evidence of one doctor: Dr. Boyle, an orthopaedic surgeon who, like Dr.
McKenzie, examined Ms. Gallina and her medical records and prepared a report.

i)      Dr. Gerard McKenzie, orthopaedic surgeon called by
Ms. Gallina

[96]        
Dr. McKenzie was accepted at trial as qualified to give expert evidence
as an orthopaedic surgeon with some expertise in the assessment and diagnosis
of chronic pain.

[97]        
Dr. McKenzie examined Ms. Gallina and concluded that there were three different
sources of her pain: first, in the groin; second, in the lower back; and third,
on the outside of her hip, from the trochanteric bursa. Dr. McKenzie found
tenderness in Ms. Gallina’s right L5/S1 area (corresponding with the lower
lumbosacral facet joint), over the trochanteric bursa on the right side, and
over the superior pubic ramis on the right side. Dr. McKenzie testified that
such tenderness would not always be present, and would depend on factors like
the weather and the patient’s recent exercise. Dr. McKenzie also found that Ms.
Gallina had pain with flexion and adduction.

[98]        
In Dr. McKenzie’s opinion, Ms. Gallina sustained injuries to her low
back and right hip area as a result of the accident. In his opinion, the
prognosis is poor.

[99]        
In Dr. McKenzie’s opinion, the right hip pain is likely due to soft
tissue pain at the pelvis. In his opinion, the injury is likely not in the
joint itself, but rather in the area where the tendon attaches to the bone. In
his opinion, the prognosis for resolution of this injury is poor, based on the
amount of time that has passed since the accident.

[100]     In Dr.
McKenzie’s opinion, the lower back pain is likely caused by the lower lumbar
facet and/or the myofascial structures. Like Dr. Boyle, Dr. McKenzie
recommended that Ms. Gallina have a bone scan to try to determine the cause of
the lower back pain. In Dr. McKenzie’s opinion, Ms. Gallina may have a
trochanteric bursitis, caused by the accident. In his opinion, if this bursitis
exists, injections may reduce the pain temporarily.

[101]     In Dr.
McKenzie’s opinion, Ms. Gallina is developing a chronic pain condition.

[102]     In Dr.
McKenzie’s opinion, physiotherapy for the hip injury would not be beneficial,
and physiotherapy would not help with the right groin pain.

[103]     Like Dr.
Boyle, Dr. McKenzie’s opinion is that Ms. Gallina would not harm herself by
doing activities such as prolonged walking, but she may not be able to do such
activities because of the level of her pain.

ii)    
Dr. Boyle, orthopaedic surgeon called by the defence

[104]     Dr. Boyle
was accepted at trial as qualified to give opinion evidence as an orthopaedic
surgeon.

[105]     Dr. Boyle
was not able to provide an explanation for Ms. Gallina’s complaints of pain. He
wrote that it was difficult to determine if Ms. Gallina has true discrete
lumbar spine complaints or whether they are related to the right hip. He wrote
that if Ms. Gallina had a lumbar injury, it would be a myofascial strain, and
her low back complaints would likely resolve over time.

[106]     Dr. Boyle
wrote that it appeared there is no significant dysfunction in that Ms. Gallina
is not favouring her leg, which suggests that she would not come to any harm by
fully participating in any vocational or avocational pursuits that she wishes. Dr.
Boyle wrote that Ms. Gallina could work as a letter carrier, and could have
done so in the fall of 2010 with a return to work graduated over 6 to 8 weeks.

iii)  
Dr. Gudapati, general practitioner

[107]     Dr. Gudapati
is Ms. Gallina’s treating family doctor and was accepted at trial as qualified
to give expert evidence as a physician with experience in family practice.

[108]     Dr.
Gudapati described Ms. Gallina’s complaints since the accident, including a
right hip pain which is dull, achy, and constant in nature. Dr. Gudapati wrote
that she was unable to give an opinion as to how long Ms. Gallina would
continue to have this right hip pain and whether she would ever be cured of
this right hip pain.

iv)  
Discussion

[109]     The
medical evidence is consistent that there are no objective findings that
explain why Ms. Gallina is suffering pain in her right hip and lower back. Both
Drs. Boyle and McKenzie suggest a bone scan to determine whether the lower back
pain is caused by a trochanteric bursitis. If so, injections may reduce the
lower back pain temporarily.

[110]     None of
the experts found objective evidence of a cause of the right hip pain. However,
Dr. McKenzie detected tenderness which was not detected by other physicians. I
accept that such tenderness would not always be present, and that even if
present, some physicians might not detect it.

[111]     I accept
Dr. McKenzie’s findings of tenderness, and that this suggests that the right
hip pain is in the area where the tendon attaches to the bone. I accept his
opinion that the prognosis for resolution of this injury is poor. I also accept
his opinion that physiotherapy would not be beneficial for either the right hip
pain or the right groin pain.

[112]     I accept
that Ms. Gallina probably would not harm herself by doing activities such as
prolonged walking and standing. However, I find that the resulting pain would
be so disruptive to her life that it is unreasonable for her to engage in
prolonged walking and standing.

ANALYSIS

a)   
What injuries did Ms. Gallina suffer in the accident?

[113]    
The parties agree that Ms. Gallina suffered soft tissue injuries which
resolved in about six months and affected her neck, shoulder, upper back, and
mid back. The parties disagree about the extent of Ms. Gallina’s right hip and
low back problems.

[114]    
The position of the defence is that there is no definite explanation of
the cause of Ms. Gallina’s right hip pain, and accordingly, that she has not
proven that it was the result of the accident. In addition, the defence argued
that both Dr. Boyle and Dr. McKenzie agreed that Ms. Gallina might have
myofascial strain, which is a soft tissue injury, and therefore might heal over
time, and therefore the court should accept that the injury will likely heal.

[115]    
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is
often cited as a reminder of the approach the court must take in assessing
injuries which depend on subjective reports of pain. At 397-399 of the reasons
for judgment, Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries normally
resolve themselves within six months to a year or so. Yet every physician knows
some patients whose complaint continues for years, and some apparently never
recover. For this reason, it is necessary for a court to exercise caution and
to examine all the evidence carefully so as to arrive at a fair and reasonable
compensation. Previously decided cases are some help (but not much, because
obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that a
defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

I am not stating any new principle
when I say that the court should be exceedingly careful when there is little or
no objective evidence of continuing injury and when complaints of pain persist
for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer. But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence — which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

[116]     Ms.
Gallina’s complaints are substantially subjective complaints of pain. The
findings of tenderness and pain on examination are substantially subjective
complaints of pain. As a result, assessment of Ms. Gallina’s credibility and
reliability is key.

[117]     I found
Ms. Gallina to be a credible and reliable witness. She did not appear to
exaggerate and in fact appeared to minimalize her difficulties. Her work
history, including working at several jobs at one time and performing physically
demanding work, demonstrates that she has a strong work ethic. Her horticulture
degree and work in the golf industry and as a letter carrier, as well as her
moves to Whitehorse, demonstrate that she has a love for an active outdoor
life.

[118]     I accept Ms.
Gallina’s evidence that she continues to suffer right hip and low back pain,
which flares after prolonged walking or standing and on other occasions. The
likely cause of the right hip pain is an injury from the accident where the
tendon attaches to the bone, and this injury is not likely to resolve. Ms.
Gallina also suffers periodic lower back pain, which may be bursitis. If so,
the pain may be temporarily reduced with injections. Whether or not it is
bursitis, it was caused by the accident, and is not likely to resolve
permanently.

b)   
Impact of injuries on Ms. Gallina’s work and personal life

[119]     Before the
accident, Ms. Gallina was an active person, as a fulltime letter carrier,
mother and wife, and as someone who enjoyed outdoor activities including
snow-boarding, hiking, and baseball.

[120]     Because of
pain resulting from her injuries in the accident, Ms. Gallina has been unable
to return to work as a letter carrier, has been unable to care for her home and
children as she did previously, and has been unable to return to snow-boarding,
hiking, and baseball.

[121]     This is a
significant loss for a person who was previously so active.

c)   
Ms. Gallina’s failure to apply to Canada Post to accommodate her in the
workplace

[122]     Ms.
Gallina did not apply to Canada Post to accommodate her following the accident.
It is most likely that she did not do so because she did not understand that
Canada Post has a duty to accommodate her to the point of undue hardship, and did
not understand that Canada Post might be able to find alternative work for her
despite her limitations. As a consequence of the trial proceedings, Ms. Gallina
is now likely aware of those things.

[123]     Ms.
Gallina resumed working in January 2011 at a lesser hourly rate than her Canada
Post position and in an indoor position. She did so because the family needed
the income. She would have returned to work at Canada Post if she had believed
that she was capable of doing so.

[124]     If Ms.
Gallina had been working at the time of the accident, it is likely that someone
at the workplace would have explained Canada Post’s duty to accommodate to Ms.
Gallina. However, she did not understand the nature of that duty. It was not
unreasonable for her to fail to understand that Canada Post had such a duty.
Although she had been accommodated in her position during her pregnancy with
her second child, she was capable at that time of significant amounts of
standing and walking, and the accommodation required was relatively modest.

[125]     The
evidence of Mr. Gill fell short of establishing that Canada Post would have
been able to accommodate Ms. Gallina in Whitehorse in the period between
February 2011, when the Whitehorse position was available to her, and the date
of trial. Even if Ms. Gallina had sought accommodation as early as February
2011, Canada Post may not have been able to accommodate her in Whitehorse.
Without evidence about what position Canada Post would have offered Ms. Gallina
in what work location, it is not possible to determine whether Ms. Gallina
ought reasonably to have accepted such a position.

[126]    
The burden of proof on the issue of mitigation lies with the defence. As
stated by Rowles J.A., writing for the majority, in Graham v. Rogers,
2001 BCCA 432, at para. 35, regarding the principle of mitigation in personal
injury cases:

Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the
onus of proof on that issue.

[127]    
This principle has been applied to arguments that a plaintiff has not
pursued a course of recommended medical treatment. In Chiu v. Chiu, 2002
BCCA 618, Low J.A. wrote as follows at para. 57:

…the defendant must prove two
things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.

[128]    
The court is slow to determine that good faith decisions are
unreasonable. As set out in Paniccia Estate v. Toal, 2012 ABCA 397, at
para. 86:

…the court only lightly reviews
the decision of the person injured to try to mitigate his loss. Courts are
extremely slow to criticize good-faith decisions by victims of torts about both
whether to take steps in mitigation, or which steps, or how much expense or
risk to incur in doing so.

[129]     In this
case, Ms. Gallina did not know that Canada Post’s duty to accommodate her may
require it to offer her work that she is capable of performing. She made a good
faith decision to try to minimize her losses by commencing office work for
Outside the Cube. In these circumstances, I am not prepared to conclude that
she unreasonably failed to mitigate by failing to apply to Canada Post for
accommodation.

[130]     However,
even if I am wrong in that conclusion, the evidence failed to establish that
Canada Post could have accommodated Ms. Gallina in Whitehorse prior to trial.
It also failed to establish that, if Canada Post could only accommodate Ms.
Gallina by offering her a job outside of Whitehorse, that it was a position
that she ought reasonably to have accepted.

[131]     As a
result, Ms. Gallina’s failure to seek accommodation from Canada Post will not
reduce Ms. Gallina’s award for past wage loss. However, the possibility that
Canada Post may be able to accommodate her in the future is a relevant
contingency for consideration with her claim for lost future earning capacity.

d)   
Ms. Gallina’s failure to obtain all the physiotherapy which was
suggested to her

[132]    
As discussed above, in order to reduce Ms. Gallina’s award on the basis
of her failure to pursue physiotherapy during some of the pre-trial period, the
defence must establish the following:

(1) that the plaintiff acted
unreasonably in eschewing the recommended treatment, and (2) the extent, if
any, to which the plaintiff’s damages would have been reduced had he acted
reasonably.

[133]     In this
case, Ms. Gallina did not know that physiotherapy benefits were available to
her through Canada Post for the period ending February 2011, when she cancelled
her extended health benefits. In the circumstances of Ms. Gallina’s young
family, it was not unreasonable for her to decline to pay the cost for
physiotherapy treatments.

[134]     However,
even if I am wrong in that, the evidence did not establish that Ms. Gallina’s
injuries would have resolved if she had pursued all the recommended
physiotherapy. As a result, her award will not be reduced for failure to pursue
all recommended physiotherapy.

e)   
Appropriate award for each head of damages

i)     
Loss of Housekeeping and Home Maintenance Capacity

[135]     Ms.
Gallina seeks an award of $10,000 to $15,000 for lost housekeeping and home
maintenance capacity. The position of the defence is that any impact on Ms.
Gallina’s housekeeping capacity ought to be reflected in the award for
non-pecuniary damages, rather than as a separate head of damages.

[136]    
The test for loss of housekeeping and home maintenance capacity was
succinctly stated by Blair J. in Menhinick v. Lobesz, 2008 BCSC 1285, at
para. 55:

The plaintiff must establish a
real and substantial possibility that she will continue in the future to be
unable to perform all of her usual and necessary household work, and that the
work she will not be able to do will require her to pay someone else to do it,
or will require others to do it for her gratuitously.

[137]     Damages
may be awarded for loss of housekeeping capacity even if the plaintiff has not
incurred any actual expenses for hired services: see Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652, at para. 9 (leave to appeal dismissed [1995] SCCA
No. 263); Easton v. Chrunka, 2006 BCSC 1396, at para. 45; and Dykeman
v. Porohowski, 2010 BCCA 36, at para. 28.

[138]     In Kroeker,
the majority of the Court of Appeal recognized that damages for past and future
loss of housekeeping and home maintenance capacity may be awarded by a trial
judge, even though housekeeping services were gratuitously replaced by a family
member. Further, it recognized that, depending on the facts, this compensation
may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there
was no reason these damages could not be segregated.

[139]     In this
case, Mr. Gallina has assumed responsibility for housekeeping and home
maintenance work that Ms. Gallina would otherwise have performed. As a result,
I prefer to analyse Ms. Gallina’s loss as non-pecuniary damages.

[140]     In my view
it is appropriate to segregate the non-pecuniary damages for lost housekeeping
and home maintenance capacity from the general non-pecuniary damages. Ms.
Gallina is no longer capable of doing most housekeeping and home maintenance
work without significant pain. She has three young children and is expecting a
fourth. The work that Mr. Gallina has gratuitously replaced is significant. The
sum of $10,000 is an appropriate award.

ii)    
Non-pecuniary damages other than lost housekeeping and home maintenance
capacity

[141]     Ms.
Gallina argued that the appropriate award for general non-pecuniary damages was
in the range of $75,000 to $85,000. She relied on these cases: McKenzie v.
Sidhu, 2013 BCSC 925; Midgley v. Nguyen, 2013 BCSC 693; White v.
Gehricke, 2013 BCSC 377; Knight v. Belton, 2010 BCSC 1305; and Guthrie
v. Narayan, 2012 BCSC 734.

[142]     The
position of the defence was that the award should be in the range of $35,000 to
$40,000, but that was based on the defence position regarding the extent of Ms.
Gallina’s injuries. The defence relied on Rindero v. Nicholson, 2009
BCSC 1018; Spurgeon v. Smith, 2009 BCSC 1526; Harris v. Zabaras,
2010 BCSC 97; Fiorda v. Say, 2011 BCSC 1293; Hsu v. Williams,
2011 BCSC 1412; and Olynyk v. Turner, 2012 BCSC 1138.

[143]     It is
important when looking at these cases to consider whether a separate award was
made for lost housekeeping and home maintenance capacity.

[144]     The facts
differ in each personal injury case. In this case, the appropriate award for
non-pecuniary damages apart from lost housekeeping and home maintenance
capacity is $75,000.00.

iii)  
Past Wage Loss

[145]     Ms.
Gallina claims lost income for the period starting February 2011, because that
is the date that the Canada Post position in Whitehorse was available to her,
and therefore the date when she would have resumed working at Canada Post if
she had not been injured in the accident. She claims the difference between
what she would have earned at Canada Post and what she did earn from Outside
the Cube.

[146]     The
position of the defence is that the court should not make any award for lost wages,
arguing that Ms. Gallina could have returned to work for Canada Post with
accommodation. Alternatively, the defence argued that any award should be
modest.

[147]     I accept
that Ms. Gallina would have commenced working at the Canada Post position in
Whitehorse in February 2011 if she had believed that she was capable of
performing her duties. She did return to working, although at Outside the Cube,
at a lesser hourly rate and reduced hours. As discussed above, the defence has
not established that Ms. Gallina failed to take reasonable steps to mitigate
her damages. Accordingly, she is entitled to the difference between what she
would have earned if she had resumed working at Canada Post and what she did
earn working at Outside the Cube.

[148]     Ms.
Gallina earned a total of about $38,700 from work at Outside the Cube in the
period from February 2011 to the trial. If she had worked at Canada Post during
that period of about 34 months, she would have earned about $162,000
($57,324.80 per year divided by 12 equals about $4,777 per month, multiplied by
34). The difference between those figures is about $123,719. Based on a tax
rate of 20%, the loss would be about $98,975.00, without considering any
possible lost pension benefits. Ms. Gallina is entitled to that amount for past
wage loss.

iv)  
Lost Earning Capacity

[149]     Ms.
Gallina seeks an award of $150,000 to $200,000 for lost future earning
capacity.

[150]     The defence
argued that Ms. Gallina will not suffer any future wage loss, on the basis that
she is likely to be accommodated by Canada Post, and therefore will not suffer
future wage loss. Alternatively, the defence argued that Ms. Gallina’s loss
will be minimal, and that an award should be no more than $70,000. The defence
argued that the court should consider contingencies such as that Canada Post
letter carriers may go on strike for some of the time that Ms. Gallina would
otherwise be working in the future. The defence also argued that Ms. Gallina
may take time out of the workforce to raise her children.

[151]    
The Court of Appeal discussed an award for future income loss in Perren
v. Lalari, 2010 BCCA 140. As set out in para. 32:

A plaintiff must always
prove … 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
or a capital asset approach…. The former approach will be more useful when
the loss is more easily measurable … The latter approach will be more useful
when the loss is not as easily measurable…. 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. … But … an inability to
perform an occupation that is not a realistic alternative occupation is not
proof of a future loss.

[152]     Ms.
Gallina was a hard worker who often worked at multiple jobs. She continued to
work after the birth of each of her three children and plans to return to work
after the birth of her fourth child. She is someone who would work as required
to support her family.

[153]     Ms.
Gallina has a significant history of working at physically demanding jobs,
including in the service industry and at golf courses. Ms. Gallina is likely
precluded from working at physically demanding jobs in the future. But for her
injuries in the accident, she might reasonably have worked at physically
demanding jobs in the future.

[154]     Ms.
Gallina has established that there is a real and substantial possibility that
she will be unable to perform work that she would have done if the accident had
not occurred, and that as a result she will suffer an income loss.

[155]     Assessment
of Ms. Gallina’s lost future earning capacity is difficult. The evidence did
not include physical capacity evaluations or vocational evaluations or any plan
for retraining or any economic evidence. Ms. Gallina suffered a loss of almost
$99,000 in the 34 months prior to trial, being about $2,900 per month. It is
not likely that she will suffer such a large loss in the future primarily
because she is likely to obtain accommodation from Canada Post.

[156]     Ms.
Gallina is presently working only 20 hours per week for Outside the Cube. The
number of hours Ms. Gallina is working appears to be based on the availability
of work rather than her abilities. It is not yet entirely clear whether Ms.
Gallina will be able to tolerate fulltime work. However, her pain appeared to
be triggered by walking and standing, and there is a reasonably good chance
that she will be able to tolerate fulltime work in a sedentary job. The
evidence did not suggest that the physically demanding work Ms. Gallina had
performed in the past would likely be more lucrative than sedentary work she
can do in the future.

[157]     Ms.
Gallina is earning about $24,000 per year at Outside the Cube (20 hours/week x
$23.00/hour x 52 weeks), and if she could work 40 hour weeks she would earn
about $48,000 per year at that rate. At the rate paid by Canada Post, Ms.
Gallina would earn about $57,300.00, being about $33,000 more than she is
presently earning at Outside the Cube.

[158]     An
assessment of Ms. Gallina’s lost earning capacity must take into account factors
which suggest both a greater and a lesser sum, including the following:

a)    if Ms. Gallina
had not been injured in the accident, she would likely have continued to work fulltime
for Canada Post as a letter carrier, and would likely have worked some overtime
shifts;

b)    if she applies
following the trial for accommodation by Canada Post, Canada Post may or may
not be able to reasonably accommodate her in Whitehorse or another suitable
location, but it is more likely than not that Canada Post will accommodate her;

c)     if Canada
Post cannot accommodate Ms. Gallina’s limitations, she will not likely receive
the maternity/parental benefits which would have been available to her through
Canada Post;

d)    if she had not
been injured in the accident, Ms. Gallina might have worked in physically
demanding jobs in the future outside of Canada Post;

e)    if she had not
been injured in the accident, Ms. Gallina might have worked in multiple jobs at
one time including physically demanding work when the family needed funds, but
she is now unable to tolerate physically demanding jobs;

f)      because
she was injured in the accident, Ms. Gallina may experience periods of
unemployment that she would otherwise not have experienced, owing to her
inability to work at physically demanding jobs;

g)    Ms. Gallina may
not be able to tolerate working fulltime hours in any job, although she
probably can tolerate fulltime hours in a sedentary job; and

h)    if Ms. Gallina
had worked continuously for Canada Post, there may have been periods when she
was on strike and not receiving her full salary, or she may have been laid off
because of a decline of work or for other reasons such as a disability
unrelated to the accident or relating to her children or other family members.

[159]     It is
difficult to provide a basis for assessing Ms. Gallina’s lost earning capacity.
That award must be assessed, not calculated.

[160]     Ms.
Gallina was 34 years old at the time of the accident and 39 at the time of the
trial. Her lost earning capacity award should reflect a likely working career
of at least 26 years until she reaches 65 years of age. At the rate of her
pre-trial wage loss of about $2,900 per month ($34,800 per year), that would be
about $900,000, before discounting for present value.

[161]     However,
Canada Post is likely to accommodate Ms. Gallina. If not, Ms. Gallina is likely
to be able to work fulltime in sedentary positions. She is likely to suffer
periods of unemployment or underemployment because of her physical limitations.

[162]     An award
reflecting about three years of salary as a letter carrier is appropriate to
compensate Ms. Gallina for the damage to her future earning capacity. Three
years is about 12% of 26 years. This reflects that over the period of about 26
years following trial, Ms. Gallina may suffer periods of unemployment which
last longer than they would have lasted if she were able to perform physically
demanding work. It also reflects the other contingencies discussed above. Ms.
Gallina is entitled to $175,000.00 for lost future earning capacity.

v)   
Cost of Future Care

[163]     Ms.
Gallina claims $10,000 for the cost of future care. She argued that she may
need further treatment which is not available in Whitehorse, and that the award
for cost of future care should take into account future travel expenses. The
defence suggested a modest award for future care of about $1,000, to pay for items
like such as ibuprofen.

[164]    
The award for the cost of future care was discussed by D.M. Smith J. (as
she then was) in Bystedt (Guardian ad litem of) v. Hay, 2001 BCSC 1735,
at paras. 162 – 163 (aff’d 2004 BCCA 124):

The test for an award of future
care is “whether a reasonably-minded person of ample means would be ready to
incur the expense. When measuring reasonableness, the expense should not be a
squandering of money”

[165]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 84 (S.C.), aff’d
(1987), 49 B.C.L.R. (2d) 99 (C.A.), McLachlin J. (as she then was) wrote at
para. 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.

[166]     The test
in Milina has been read to mean that the care must relate to health
needs, and not simply enjoyment of life. However, the test does not require
that a medical doctor provide the evidence of the specific care that is
required by the plaintiff: Jacobsen v. Nike Canada Ltd. (1996), 133
D.L.R. (4th) 377, at para. 182 (B.C.S.C.).

[167]     The court
may apply common sense to determine whether care is required even in the
absence of medical evidence: Ha v. Fritzke, 1999 BCCA 667, at paras. 16,
17, and 22.

[168]     Ms.
Gallina is likely to require some pain medication in the future, but the cost
is likely to be modest. She is likely to have the bone scan suggested by both
orthopaedic surgeons, but it is likely that any out-of-pocket costs will be
covered by Yukon Health, as was the MRI. If Ms. Gallina requires injections
into the bursa, similarly the out-of-pocket costs are likely to be covered. The
cost of Pilates classes is a modest one. It relates to health needs, and is a
reasonable expense in the circumstances.

[169]     As a
result, Ms. Gallina is entitled to an award of $2,500 for the cost of future
care.

vi)  
Special Damages

[170]     Ms.
Gallina claimed $2,873.48 in special damages, consisting primarily of fees for
physiotherapy and massage therapy, but also including some medication,
childcare costs, and Pilates and yoga fees.

[171]     The
defence argued that the award should be $2,673.48, consisting of the amount
claimed less $200 for Pilates. The position of the defence was that there was
no evidence that Pilates had been prescribed by a doctor.

[172]     The
Pilates classes were not prescribed by a doctor. However, they were recommended
by a treating physiotherapist, as a way to provide Ms. Gallina with some
benefits for less than the cost of physiotherapy treatments. This was a
reasonable cost in the circumstances.

[173]     Ms.
Gallina is entitled to the entire amount of special damages claimed of
$2,873.48.

SUMMARY

[174]     Ms.
Gallina is entitled to the following award:

a)    $10,000.00 in
non-pecuniary damages for lost housekeeping and home maintenance capacity;

b)    $75,000.00 for
non-pecuniary damages;

c)     $98,975.00
for past lost income;

d)    $175,000.00 for
lost earning capacity;

e)    $2,873.48 for
special damages; and

f)      $2,500.00
for cost of future care.

[175]     As
requested, counsel have liberty to address the issue of costs, including the
level of costs, now that these reasons for judgment have been released.

“Gray J.”