IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140616

Docket: M66273

Registry:
Nanaimo

Between:

Jennifer
MacDonald aka Jennifer Nass

Plaintiff

And

Timothy
Mark Kemp

Defendant

Before:
The Honourable Mr. Justice Baird

Reasons for Judgment

Introduction

[1]            
This is a damages assessment in a motor vehicle accident case. Liability
is admitted. There are no factual disputes or issues of credibility, and no
allegations of exaggeration, malingering, or failure to mitigate. Apart from
reasonably minor disagreements about the amount of non-pecuniary damages,
special damages, and the cost of future care, the only issue in this case is
whether the plaintiff is entitled to compensation for the loss of future income
earning capacity.

The Accident

[2]            
The accident occurred on September 18, 2010, when the plaintiff was 25
years old. She was a passenger in a vehicle driven by her father. They were
headed eastbound on the Trans-Canada highway near Chase, BC, on their way to
the Lloydminster, where the plaintiff’s grandmother lay on her deathbed. The
defendant entered the highway at the intersection with Squilax-Anglemont Road
when it was not safe to do so. The plaintiff’s father was obliged to swerve to
the right to avoid a collision with the defendant’s vehicle. In the process,
unfortunately, he ran his vehicle off the road and crashed. The vehicle was a
write-off.

The Plaintiff’s Injuries and Progress

[3]            
As a result of the accident, the plaintiff suffered a number of soft
tissue injuries. To this day she continues to experience pain in her lower
back, neck and shoulders, primarily the left shoulder. Following the accident
and as a result of her injuries she also developed bursitis in her left
shoulder. She experiences a consistent dull pain in these locations throughout
the day and finds it is aggravated and flares up following strenuous physical
activity, thereby requiring that she take non-prescription pain medication. She
has suffered occasionally from headaches and tingling in her arms, and
sometimes experiences anxiety when she is in a motor vehicle on a busy highway.
She had no pre-existing injuries and enjoyed good health before the accident.

[4]            
The plaintiff has taken massage, physiotherapy and acupuncture
treatments in an effort to rehabilitate these injuries. These passive
interventions have afforded her a measure of relief. She also takes Advil to
manage her pain and exercises in a home gym to the increase her strength and
fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland,
recommends that these treatments continue.

[5]            
Dr. Markland also recommended that the plaintiff avoid “forceful
activities” at or above shoulder level, but observed that she “is fortunate
that her work is not physically demanding, and that she finds her workstation
well adapted. She is still able to pursue many of her pre-accident activities,
although at a lower level than before.” While acknowledging that there is still
a chance that the plaintiff’s condition may improve, Dr. Markland
indicated that, almost four years after the accident, the likelihood is that
her back, neck and shoulder pain and weakness are here to stay.

The Plaintiff

[6]            
The plaintiff is now 29 years of age. She presented as a pleasant and
cheerful person and gave her testimony in a forthright, unaffected manner. She
testified that her injuries have had a deleterious impact on her quality of her
life. She has had to cut back on the kind of physical activities that gave her
pleasure before the accident. These included ATV riding, Tae Kwon Do, softball,
boating, hiking, camping, running, yoga and going to the gym. With respect to
ATV riding, for example, she continues to ride with her husband, but whereas
they used to travel long distances over many hours, she is now restricted to
short trips. Her ability to go boating has been restricted by her inability to
assist her husband in loading their boat onto their pickup truck. They sold
their boat because of this.

[7]            
Generally speaking the plaintiff is less physically strong and able than
before, and lacks stamina in the pursuance of quotidian activities. For
example, she now finds it difficult to collect and stack firewood, an activity
she must do regularly as she uses wood to heat her home. The injuries have also
had a negative effect on her ability to manage her home with the kind of
briskness and efficiency that used to be second nature.

[8]            
The plaintiff’s evidence about all of this was confirmed by her husband,
Dwight Nass; her mother, Debbie MacDonald; and her friend, Megan Barker, each
of whom gave straightforward and uncontested evidence. Ms. Barker also
testified that, since the accident, the plaintiff has had difficulty lifting
and holding Ms. Barker’s infant child. The plaintiff and her husband are
hoping to start a family, and I was urged to conclude that her injuries may
limit her future ability to care adequately for her own children. I will
discuss this further when addressing damages for future care.

[9]            
The plaintiff was raised in Calgary, where she graduated high school.
She did not go to college or university but has been consistently and fully
employed. While in Calgary, she worked as a retail clerk at SportChek, where
she met her husband. Her husband is from Port Alberni, and the couple moved to
that community in 2005. The plaintiff worked for a time as a veterinarian’s
assistant but left that employment in the autumn of 2008. Since April 2009 she
has become a successful retail insurance salesperson. Her position involves
typing, data entry, filing, talking on the phone, and dealing with members of
the public.

[10]        
The plaintiff did not take any time off work following the accident, so
there is no claim for past loss of income. Furthermore, with some minor
accommodations provided by her employer (a new chair, an adjustment to her
computer screen, and a modification to her telephone receiver), the plaintiff
has been able to function at work without difficulty. The evidence discloses no
plausible reason for me to think that this will not continue.

[11]        
The plaintiff mentioned in her testimony that she loves animals, and if
she had her way, she would prefer to work in the veterinary field. She made
reference to a two-year college course which would result in some sort of
marketable qualification to be a veterinarian’s assistant. However, she has
never applied for such a course, and did not provide any details about where
and when it might be offered, how much it would cost, whether she would be
eligible to enroll, or what kind of career and income it might lead to.

[12]        
I conclude that the plaintiff left the veterinary field years ago and
has never evinced any real inclination to return to it. In any event, I was
told that her last job as a veterinary assistant paid $17.00 per hour, whereas
in her present career as an insurance agent, she makes close to $30.00 per
hour. Furthermore, over the years she has taken additional training and
accreditation courses offered by the Canadian Association of Insurance Brokers
which have led to steady wage increases. She now earns close to $50,000.00 a
year, a great deal more than she earned as a veterinarian’s assistant.

[13]        
I am satisfied that the plaintiff is settled in this career, and that
her future in the work force will involve work of a similar, if not identical,
nature. I am also satisfied that her accident-related deficits will have no
impact on her ability to continue working and excelling in the insurance
industry. I will discuss this point further in the context of the claim for
loss of future earning capacity.

Non-pecuniary Damages

[14]        
Non-pecuniary damages are awarded to compensate a plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. In Stapley v.
Hejslet, 2006 BCCA 34 at para. 46, the British Columbia Court of
Appeal provided an inexhaustive list of factors to be considered when assessing
non-pecuniary damages. They include:

(a)      age of
the plaintiff;

(b)      nature
of the injury;

(c)      severity
and duration of pain;

(d)      disability;

(e)      emotional
suffering;

(f)       loss or
impairment of life;

(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).

[15]        
While awards made in similar cases can useful tools in assessing
non-pecuniary losses, each case depends on its own unique facts, so that case
law can serve only as a rough guide: Trites v. Penner, 2010 BCSC 882 at paras. 118-119.

[16]        
Prior to the accident the plaintiff was healthy and active young woman
in the prime of her life. The defendant’s negligence has compromised her
ability to enjoy the full, pain-free use of her body. I have said in other
cases, and will repeat here, that for a young woman such as the plaintiff to be
forced now to deal with physical deficits that do not afflict most of us until
middle age is an unfortunate and serious matter (see, for example, Aubin v.
Ball, 2013 BCSC 962 at para. 129).

[17]        
The plaintiff submits that an appropriate award for non-pecuniary
damages would be in the $60,000 to $70,000 range. She cited 14 cases in support
of this position, including Donovan v. Parker, 2014 BCSC 668; Guthrie
v. Narayan, 2012 BCSC 734; Roy v. Storvick, 2013 BCSC 1198; Milliken
v. Rowe, 2011 BCSC 1458; Dorosh v. John, 2013 BCSC 1442; and Small
v. Upshaw, 2012 BCSC 1225.

[18]        
The defendant argues that a just and reasonable award under this head
would be $35,000 to $40,000. The cases cited by the defendant included Christoffersen
v. Howarth, 2013 BCSC 144; Lumley v. Balilo, 2013 BCSC 1052; Hunter
v. Yuan, 2010 BCSC 1526; Carter v. Zhan, 2012 BCSC 595; and Nair
v. Cindric, 2013 BCSC 2128.

[19]        
In my view, the plaintiff has relied on authorities which, generally
speaking, involve more serious injuries than those she has endured, while the
defendant has chosen cases in which the injuries and resulting pain and
suffering are more innocuous than in the present case.

[20]        
For example, the plaintiff particularly emphasized Guthrie v. Narayan
(non-pecuniary damages of $65,000). In that case the 26-year-old plaintiff bank
teller missed two months of work after the accident, then gradually returned as
her condition improved. Three years post-accident she was still not able to
perform all of her work-related duties, could not carry a backpack and had to
decline social activities because she was not able to participate in them. She
was incapable of certain types of housework, and her intimate life with her
boyfriend was seriously affected. These are, in my view, more drastic
consequences than those in evidence before me.

[21]        
On the other hand, the defendant relies on Christoffersen v. Howarth
(non-pecuniary damages of $35,000), where the 25-year-old plaintiff, an office
receptionist, was involved in a low-velocity impact collision. While after two
and a half years she was suffering from injuries similar to those the plaintiff
in this matter describes, there was no accident-related bursitis, she was far
better able to return to her pre-accident activities, and a full recovery was
anticipated. In other words, she was not as badly injured as the plaintiff
here.

[22]        
In my view, the appropriate award is somewhere in the range delineated
by these two cases. I intend to emphasize the upper end of that range,
primarily because, as previously mentioned, the plaintiff has been compromised
in her physical health during the years of her life when she should be enjoying
peak strength and functionality. I award $55,000 under this heading.

Special Damages

[23]        
The plaintiff claims $5,465.67 in special damages. The defendant says
the plaintiff cannot recover a portion of this on the basis that she has
attended massage therapy more often than is reasonably necessary. I disagree.
The plaintiff derives a good deal of comfort from these treatments, and they
assist in improving her physical functioning. In my view, all of these expenses
are well in order and the plaintiff’s demand under this heading is reasonable.
I will make the award accordingly.

Cost of Future Care

[24]        
The plaintiff called an occupational therapist named Lorraine McDuff who
had prepared an expert report entitled “Life Care Plan for Jennifer Nass”. Ms. McDuff
testified that she considers it to be her duty to evaluate the plaintiff’s
accident related deficits and to recommend every possible means of remediating
them. Her goal is for the plaintiff to operate to the same level of
functionality as before the accident.

[25]        
While I agree with this sentiment in a general way, the test for
determining the appropriate award under the heading of cost of future care is
an objective one based on medical evidence. There must be a medical
justification for each claim under the heading of cost of future care, and the
claims must be reasonable: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
(S.C.) at 84.

[26]        
In my view, a number of Ms. McDuff’s recommendations are neither
medically justifiable nor reasonable. For example, in addition to recommending
continued recourse to analgesic medication, massage, acupuncture,
physiotherapy, and a personal trainer — all of which I consider to be
justifiable and reasonable — Ms. McDuff’s report calls for the defendant
to pay for such items as a “Symphony Side Sleeper Pillow”, a “Shark Steam
Pocket Mop” and a “Vileda Bath Magic Mop”. There was little or no evidence to
establish why these items were justified. The plaintiff would have been obliged
to purchase mops, pillows, dusters and similar sundries absent the accident,
and such evidence as was adduced concerning the difference in the value or
efficacy of, say, a “Vileda Bath Magic Mop” over some other bath cleaning
implement struck me as neither persuasive nor significant.

[27]        
Ms. McDuff also provided details of a claim for the cost of future
housekeeping assistance. This included the expense, until the plaintiff reaches
the age of 75, of the annual cost of canine pedicure services (the plaintiff, I
was told a number of times during this trial, now finds it difficult to clip
her dog’s toenails), and yard work and home maintenance services. In my
respectful assessment, however, the plaintiff is perfectly capable of dealing
with all of her household chores. Such pain as she continues to experience may
force her to spend more time on daily tasks of this sort, but the award for
non-pecuniary damages has taken this loss of amenities into account. It would
seem that the plaintiff’s husband is helping out more with the household chores
since the accident, but not to an extent that might not legitimately have been
expected of him before it. The plaintiff’s household is running satisfactorily,
in other words, and there is no justifiable or reasonable basis upon which to
order a subsidy or contribution from the defendant.

[28]        
Finally, Ms. McDuff suggested that the plaintiff should be funded
for a “TENS” unit, something called a “Theracane”, and “occupational therapist
education”, with this last item designed to teach the plaintiff to deal with
the physical rigors of dealing with small children once she starts a family.
These items were not adequately explained in evidence. I do not have any firm
idea of what they are, how they might benefit the plaintiff, or if she would
have any practical use for them. As for child-rearing concerns, the plaintiff
has no children at present, and to this extent the “occupational therapist
education” might be said to be too remote. In any event, the likelihood that
she may experience minor difficulties with the physical aspects of childcare
has been accounted for in what I consider to be an upper-end assessment of
non-pecuniary damages.

[29]        
The plaintiff, to recap, has persistent but low-grade soreness in her
neck and lower back with associated shoulder pain. Luckily, her injuries are
only minimally debilitating. While I intend to order a reasonable amount for
additional analgesic medication, massage, acupuncture, physiotherapy, and for
the expense of a personal trainer to assist in the plaintiff’s rehabilitation,
the claims for household cleaning supplies, pain management implements,
household maintenance, dog nail clipping, and the like, are dismissed as being
unreasonable or unnecessary in the circumstances.

[30]        
Bearing in mind that this is an assessment and not a mathematical
calculation, in my view a fair, just, and reasonable award under this head
would be $3,000.

Loss of Future Income Earning Capacity

[31]        
It is well known that, in evaluating a claim under this heading, I must
first address the question of whether the plaintiff has proven a real and
substantial possibility of a future event leading to income loss. It is only if
the plaintiff discharges this burden that I should turn to the assessment of
damages: Perren v. Lalari, 2010 BCCA 140 at para. 32.

[32]        
In this case, as previously stated, I have concluded that the plaintiff
is well settled in her career path. I find that she will remain in sedentary
office-based work. I also find that she is capable of continuing on the same
upward trajectory she has already established in the insurance business, or in
a comparable field.

[33]        
In my view, the notion that the plaintiff might return to school for a
veterinary assistant’s qualification is purely speculative. It is now over a
decade since the plaintiff left high school and she has pursued no further
education other than that which has improved her credentials and earning power
as an insurance agent. In any event, as previously stated, there was no
evidence about the veterinary assistant’s program, whether the plaintiff would
be eligible to enrol in it, or what kind of career prospects or income its
successful completion might generate.

[34]        
It may be true that the plaintiff is foreclosed now from entering into
fields of occupation that require significant upper body strength or that
require the repetitive performance of heavy tasks above shoulder level. But as
I contemplate the plaintiff’s future and the likely working career that she
would have had absent the accident, I see no reason to suppose that she would
have entered into such fields, and no evidence was led to suggest that higher
income might have resulted if she had. The claim under this heading amounts to
speculation that runs contrary to the plainly established trend of the
plaintiff’s career to present and cannot sustain an award.

[35]        
I am unable to find that there is a real and substantial possibility
that the plaintiff’s earning capacity has been impaired by the defendant’s
negligence, and this part of her claim is dismissed.

Summary

[36]        
In summary, I award the following amounts:

[37]        
Costs may be spoken to if necessary, otherwise the plaintiff will have
her costs on Scale B.

“Baird J.”