IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Dunne v. Sharma, |
| 2014 BCSC 1106 |
Date: 20140618
Docket: M121959
Registry:
New Westminster
Between:
Tara Michelle
Angela Aherne Dunne
Plaintiff
And
Pavamvir Parry
Sharma
Defendant
–
and –
Docket: M132351
Registry:
New Westminster
Between:
Tara Michelle
Angela Aherne Dunne
Plaintiff
And
Matthew James
Seymour and
Susan Elizabeth
Tellier
Defendants
Before:
The Honourable Mr. Justice Williams
Reasons for Judgment
Counsel for the Plaintiff in both actions: | B.R. Findlay and |
Counsel for the Defendants in both actions: | S.N. Baldwin |
Place and Date of Trial: | New Westminster, B.C. February 18-22, 25 |
Place and Date of Judgment: | New Westminster, B.C. June 18, 2014 |
TABLE OF CONTENTS
Issues
and positions of the parties
The plaintiffs personal background
Conclusions
with respect to the plaintiffs condition
Loss of future income earning
capacity
[1]
The plaintiff, Tara Dunne brings these actions to recover damages she
says result from the negligence of the respective defendants in two separate
motor-vehicle accidents.
[2]
Ms. Dunne is now married; she is also known by her spouses
surname, Warmaden. I will refer to her in these reasons by her former name.
Factual background
[3]
Ms. Dunne had, at the time of trial, been involved in a total of
five different motor-vehicle accidents. Two of those predated the matters at
bar – one occurred in June 2006, the other in April 2007. By the time of the
first accident that these proceedings are concerned with, she had settled her
claims arising from those.
[4]
The collisions which are the subject of the present litigation are the
following:
a) On January 10,
2008, the plaintiff was stopped at a red light in Cloverdale when she was
struck from the rear by an automobile. That vehicle was driven by the defendant
Sharma.
b) On February 24,
2010, the plaintiff was stopped at a red light in Surrey. Again, her vehicle
was struck, this time by an automobile driven by the defendant Seymour.
[5]
The defendants admit liability in respect of each of these incidents.
[6]
As well, to complete the history, the plaintiff was involved in another
automobile accident in January 2013, subsequent to the second of the subject
motor-vehicle accidents.
Issues and positions of the parties
[7]
This case requires the Court to determine the nature and extent of the
injuries that the plaintiff sustained in the two subject motor-vehicle
accidents and to decide the appropriate quantum of damages to which she is
entitled.
[8]
In the submission of the plaintiff, the accidents and their injuries
resulted in her suffering from chronic myofascial pain, pain in her neck, upper
and lower back and hips, thoracic outlet syndrome and significant psychological
injury, namely a severe generalized anxiety disorder, depression and
post-traumatic stress disorder.
[9]
The plaintiff says these injuries and conditions have impacted and will
continue to impact upon all facets of her life, including her marital
relations, her employment and her future parenting role.
[10]
In these actions, the plaintiff seeks to recover non-pecuniary damages,
past wage loss, loss of future income earning capacity, cost of future care and
special damages.
[11]
The defendants concede that the plaintiff sustained some injuries in the
two motor-vehicle accidents. However, the position they take with respect to
the extent of the injuries and the damages for which compensation is to be
awarded differs quite dramatically from the position of the plaintiff. The
defendants agree that there should be an award for general damages, but do not
accept that the plaintiff has established an entitlement to recover under any
of the other heads of damages, except for special damages.
[12]
An important issue to be addressed in this matter is with respect to the
plaintiffs condition at the time of the first accident. It will be recalled that
she had been involved in two previous accidents and that injuries resulted from
those. Conceptually, this case raises the issue of whether the plaintiffs
claim is to be viewed as a thin skull matter or whether it is a crumbling
skull situation. That entails an examination of her condition at the time of
the first accident.
[13]
A second issue to be considered is that of divisibility.
[14]
I propose to begin by setting out in some detail the testimony of the
plaintiff: her description of her background, the accidents and the injuries
and their effects on her. I will also discuss the evidence of other witnesses
she called – her husband, her mother and two employment related witnesses.
Reference will be made to the expert evidence, with a focus on the portions
that seem most relevant. After having done that, I will state in a summary way
my findings of the injuries and the effect they have had on the plaintiff.
While I may not make specific mention of all the testimony and all the reports
that have been tendered, I have examined and considered the entire body of
evidence in the process of arriving at the conclusions that I have reached.
[15]
Following that, each of the heads of damage under which the plaintiff
brings her claims will be discussed and dealt with.
The evidence
[16]
In addition to the plaintiff, her husband, her mother and two employment
related witnesses testified at trial. As well, there were a number of expert
opinions tendered in evidence.
The plaintiffs personal background
[17]
At the time of trial, the plaintiff was 25 years of age; she was born
March 13, 1987. As well, she was seven months pregnant. Because of discomfort
that she was experiencing with her pregnancy, although she had not yet started
her maternity leave, she was taking time off work from her current employment
with Westcoast Cylinders; she has been there since July 2010. Her
job responsibility consists of administrative duties, dealing with accounts and
some customer service duties.
[18]
The plaintiff is a high-school graduate. The evidence discloses that she
was a fit and active youth, participating in a number of sports during her time
at school, including basketball, volleyball, floor hockey and competitive
cheerleading. She was socially outgoing and, after leaving high school, she
continued to be active and enjoyed good health. Generally speaking, she was a
healthy, content and well-adjusted young person.
[19]
When she was in high school, Ms. Dunne began to work part-time in
the hospitality industry. Her first employment in that field was at a
restaurant, Joeys, where she started out in May 2003 performing hostess duties
and bussing tables. She remained there for a total of five years, including a
time after her graduation from high school in 2005. Although she did not work
full-time hours, she worked a fairly substantial part-time shift. She left that
job in early 2008.
[20]
After Joeys, the plaintiff found employment with Cactus Club restaurant.
She was there from April 2008 until July 2009 when she took some time off to
prepare for her wedding in July 2009. Ultimately, she chose not to return to
Cactus Club, electing instead to pursue work outside of the restaurant
industry. After taking some time to consider her options, she returned to the
workforce in early 2010 when she took employment with a hair studio. She was
there for a number of months, but then left and subsequently sought work
placement through a personnel agency which matched her with the job at her
current employer, Westcoast Cylinders. After working there for a period of time
and filling a temporary vacancy, she was hired by the company as an employee.
As at the date of trial, she remained employed there, although she was off work
in anticipation of the birth of her first child. As best I can tell, the work
situation at that location is a positive one.
[21]
Also by way of background, I will make brief mention of the two motor-vehicle
accidents which preceded the incidents which are subject of this litigation.
[22]
The first, on June 13, 2006, was an intersection collision. The
plaintiff described herself as stiff and shaken up by the event. She
subsequently saw the doctor, complaining of neck, back and wrist pain. In
accordance with her doctors suggestion, she took time off work, attended
physiotherapy and took anti-inflammatory medication. By the fall of 2006, her
condition was improving. She was resuming her physical activities and receiving
some massage therapy. By the spring of 2007, prior to the second non subject
motor-vehicle accident, she says that she was experiencing occasional neck pain
but was at substantially her pre-accident activity level. She settled the claim
on the basis that she felt that she was essentially recovered.
[23]
The second accident prior to those at bar occurred on April 11, 2007.
The plaintiff was a passenger in a vehicle which struck a parked car. She
describes striking her head on the window and striking her shoulder. As a
consequence, she attended at hospital. She describes experiencing serious
headache, together with neck and shoulder stiffness. She saw her family doctor
who recommended physiotherapy and time off work. As a consequence of the
accident, she experienced some emotional symptoms, namely feeling distress when
she was riding as a passenger in a car. She attended upon a psychologist for
counselling in that regard; she found that to be effective and considered the
situation resolved. As for physical injuries, by August/September 2007, she felt
that her physical injuries were fairly well resolved. Although she had
occasional intermittent neck pain and low back discomfort, she had largely
returned to her normal activity levels.
[24]
She settled her claim in respect of that accident in September 2007.
[25]
In the fall of 2007, the plaintiff sustained a stress fracture of her
foot. She attributes that condition to wearing high heeled shoes. She wore an
air cast for a period of time; by early January 2008, she had resumed wearing
high heels.
The first accident
[26]
On January 10, 2008, the plaintiff was on her way to work at Joeys. She
was stopped at a red light when her vehicle was struck from behind. She
describes the force as pretty hard. She said her body moved and was propelled
forward. She was shaken up and panicked by the experience. She described
pulling over; although the other vehicle did not stop, she was able to get the
licence plate number. She was quite upset and called her mother, then drove
home. Later in the day, she went to work but, because of pain and discomfort,
left part way through her shift.
[27]
As a consequence of the accident, the plaintiff saw her doctor on
January 14. She complained of headache, neck and back pain and described
experiencing anxiety. The doctor recommended that she take some time off work, that
she see a physiotherapist and that she take anti-inflammatory medication. In
fact, she took a little time off work from her hostessing duties but then
returned to a reduced schedule.
[28]
The physical discomfort continued. The plaintiff says that a few weeks
after the accident, she was experiencing significant back pain, neck pain and
had difficulty lifting even light objects.
[29]
Because of that and the reduction of her work schedule, she stepped down
from her assignment as front door manager at the restaurant. She said that was
emotionally distressing for her and that her self-confidence was damaged. As
well, the general pain persisted, including back pain, neck pain, headache and
she also reports that she was nervous while travelling in an automobile. She
was unable to do the usual physical activities that she was accustomed to,
including jogging and fitness. Ultimately, as a result of the impact the
injuries had upon her performance at work and the associated consequences, she
elected to quit her job in March 2008.
[30]
One month later, in April, the plaintiff was hired by Cactus Club
restaurant. Her aspiration was to get into management. However, she was
required to work her way through a series of other positions before she could
be considered for promotion.
[31]
She says that because she was continuing to experience neck and back
pain, she was unable to work full-time. As well, she describes that she began
to have pain in her left hip and knee.
[32]
Between July and October 2008, the plaintiff embarked upon a course of
physical therapy at Back in Motion. That consisted of traction, ultrasound,
exercise and massage. She said that afforded her some relief but the symptoms
continued.
[33]
She described her situation in the latter part of 2008 and over the
winter as experiencing emotional difficulty in that she was anxious when she
was in an automobile. As well, she said that she continued to have pain in her
low and mid back, neck and shoulder pain and some accompanying headache. She
said that because of these conditions, her physical and social activity was
quite diminished.
[34]
Through the spring of 2009, she found the same condition substantially
continued. She said that the neck and back pain she was experiencing made
household chores difficult.
[35]
In the spring of 2009, the plaintiff went through a course of physical
treatment at Karp Rehabilitation. That involved stretching, strength training
and cardio training. Her wedding was scheduled for July of that year, and she
was very much hoping to be in a better state for that occasion. However, she
claims that although her physical condition seemed to be improved, there was no
long term relief from the discomfort.
[36]
The plaintiffs wedding was in July 2009. She described it as being a
happy occasion but that she was not content with how she looked. She said that
because of her physical condition, she had to wear flat shoes; because of her
back discomfort, it was decided that there would be no receiving line.
[37]
The plaintiff had taken some time off for her wedding. Following that,
she intended to return to Cactus Club but recognized that performing serving
duties was problematic for her. In discussion with the employer, she came to
realize that there were no realistic management prospects available to her and
so she quit the job.
[38]
Ms. Dunne remained out of the workforce for the balance of 2009;
she said that she was assessing what was available and wanted to make the right
decision as to what she should do going forward.
[39]
In January 2010, the plaintiff commenced employment at Megahair. That
was a full-time job which she expected to be less physically demanding.
Nevertheless, she experienced continuing back pain, occasional hip pain, and
neck pain sometimes accompanied by headache.
The second accident
[40]
On February 24, 2010, the plaintiff was driving to work. Her vehicle was
rear-ended at a stop light. She describes being jolted forward by the force of
the impact. She exchanged information with the other driver; she said that she
then fell apart emotionally. She said she felt nauseous but nevertheless went
on to work. However, she was only able to remain there briefly and then went to
see her doctor. She was having neck pain, headache and her lower back pain had
flared up. The doctor recommended that she take some time off work, and that
she seek physiotherapy.
[41]
The plaintiff made arrangements to work part-time because of that
situation. She also attended at the Canadian Back Institute in March 2010 for a
program of therapy. That included massage, ultrasound, and exercises. She described
that as having provided some relief.
[42]
In May 2010, Ms. Dunne quit her job at Megahair. As I understand
the evidence, the principal reason for that was not related to the injuries
from the accident.
[43]
In July 2010, she began her employment at Westcoast Cylinders, as
described earlier.
[44]
By July 2010, the plaintiff was continuing to experience the same pain
and discomfort symptoms, and in fact she testified that they were growing
worse. She saw her doctor in this regard; he recommended that she consider leaving
her job. Instead, she arranged to have her hours modified.
[45]
Between August 2011 and October 2011, the plaintiff completed a course
of rehabilitation with a trainer at Fitlife. That consisted of two or three
sessions per week. She testified that the program made her feel stronger and
more fit. As a consequence, she elected to continue to use the services of a
personal trainer and indicates that support is useful in terms of tailoring a
program suited to her needs.
[46]
As mentioned earlier, in October 2011, her employment status changed in
that she was hired directly by Westcoast Cylinders; the employment agency was
no longer a factor in the arrangement.
[47]
In January 2012, the plaintiff went to see her doctor. She explained
that she was having ongoing pain and anxiety and that she was feeling
overwhelmed at work, not able to cope. She found herself tearful and frustrated
because of that condition.
[48]
Ms. Dunne has declined to take medication for anxiety or
depression. She states that the reasons for that decision include that she has
observed an adverse experience in a family member and as well a concern with
becoming reliant upon medications.
[49]
In order to make her time at work less problematic, and particularly in
light of her pregnancy, she took a number of measures, including the use of a
sitball and a kneeling pad type chair. She finds she has to change her position
frequently. As well, she arranged to work a reduced shift and as of February 9,
2013, she began a personal leave. In terms of accommodations for her discomfort,
she advises that she uses a special lumbar pillow and that affords some relief.
[50]
The employment situation with Westcoast Cylinders appears to be a
positive one. The evidence is that the company arranged for the plaintiff to
attend a course of training at BCIT. The plaintiff testified that she had some
difficulties in the course because of the problems she has sitting and being
comfortable. Nevertheless, the course was successfully completed.
[51]
With respect to her work situation going forward, Ms. Dunne
indicates that she is interested in pursuing a career in the field of
operations management.
[52]
The plaintiff says and the evidence indicates that her relationship with
her husband has been adversely affected; she says that is because of the
injuries she sustained and the psychological fallout that accompanied those
injuries. In the summer of 2012, there were serious difficulties in the
marriage. The parties separated for approximately one month. They subsequently
arranged to get back together and have taken counselling that appears to have
been helpful. Nevertheless, there remain matters that will have to be worked
through and resolved. That experience, the difficulty in the marriage, was
obviously very troubling for the plaintiff.
[53]
Physically, the plaintiff is not able to participate in some of the
activities that are important to herself and her husband as a couple. Such
activities include active outdoor pursuits, which I conclude is a significant
part of her husbands recreational interest, and long automobile trips. As
well, it is evident that their intimate relations have been affected.
[54]
Insofar as household chores are concerned, the plaintiff describes her
ability to bend, lift, stretch, and carry as much reduced. She describes
herself as a very particular housekeeper and so these limitations have proven
frustrating to both herself and her spouse.
[55]
The evidence discloses that physical functional testing has been
conducted upon the plaintiff. While those results indicate an ability to perform
specific tests and exercises, the point Ms. Dunne makes is that, when many
usual and ordinary physical activities are done in the course of everyday life,
the discomfort and the limitations from the injuries are often more impactful
than the report would seem to predict.
[56]
The plaintiff says as well that her social life with her peers has been
affected. She finds herself less able to join her friends and enjoy their usual
activities. That is in part, it would seem, a function of the fact that her
mood is quite often down – in the same way that her relations with her husband
have been affected.
[57]
With respect to the issue of parenting, an imminent reality for the
plaintiff, she testified as to her concern regarding her ability to be a full,
hands-on involved parent. She worries that her limitations will adversely
impact her ability to be a fun and active parent.
[58]
A factor of some complication is the plaintiffs husbands career path.
He is employed in the marine industry. As at the date of trial, he was employed
by BC Ferries and, as I understand, had a reasonably manageable work schedule.
However, his aspiration is to find other work in that field, more responsible
work. The plaintiff anticipates this will likely mean that he will be away from
home for multi-day periods. The plaintiff expressed doubt as to her ability to
manage parenting responsibilities and household duties on her own in such a
situation without extra help.
[59]
To summarize, Ms. Dunnes current situation, as at the time of
trial, is that she experiences low back pain on a frequent basis. She reports
that on occasion, usually in the order of a few times per week, she has neck
pain and associated headaches. She testified that when her low back pain is
severe, it sometimes radiates into her mid and upper back. In addition to the physical
discomfort, she says that she has ongoing anxiety while travelling in an
automobile. She feels that her injuries have left her meaningfully
disadvantaged in terms of pursuing the career she most wanted to have, in
restaurant management, and she believes that her general capacity in the
employment field has been diminished. She is concerned and worried that her
injuries are having a deleterious effect upon her marriage. She also testified
that she feels that she needs help in her home, she needs help with respect to
guided physical training and she needs psychological counselling.
[60]
The plaintiffs husband testified as to his observations of her. The
thrust of his evidence is supportive of her testimony as to the discomfort and
particularly her anxiety when she is travelling in an automobile. His evidence
is that her problems, her mood and her disposition, have been a real source of
difficulty and conflict between them. He testified with respect to how her
limitations have affected the allocation of household responsibilities,
imposing a substantially greater load upon him. He also spoke to the way in
which her limitations have impacted the scope of what they do together as a
couple.
[61]
Ms. Dunnes mother testified. She described her observations of the
plaintiffs apparent discomfort and how it appears to her that events have
impacted the plaintiff psychologically. She describes the plaintiffs
unhappiness that she was unable to continue in the restaurant industry and
mentioned the observations she has made concerning the plaintiffs difficulty
while travelling in an automobile.
[62]
Mr. Jesse Cera was a witness called by the plaintiff. He is the
general manager of Joeys restaurant in Coquitlam. He has worked with the
plaintiff both as a co-worker in earlier years and then later as her
supervisor.
[63]
He described the range of compensation available to persons who are
performing management tasks in the industry. He explained that the salary range
is in the order $40,000 to $45,000 per year for persons in mid-management;
assistant general managers can typically expect to earn $60,000 to $70,000 per
year and a general manager can reasonably aspire to earn a salary of $100,000
or sometimes more.
[64]
Mr. Cera described the demands that restaurant management imposes,
including long hours, and a great deal of standing.
[65]
Mr. Cera testified that in his observation, the plaintiff displayed
qualities that typically enable people to succeed in the industry: she was a
hard worker and had a good attitude; she was considered a good employee and was
recognized as having initiative. During her time at Joeys, she had taken
responsible roles in the business.
[66]
In addition, Mr. Cera testified that their company has a culture of
promoting from within and promoting women into positions of responsibility.
[67]
Finally, Mr. Cera testified as to his observations in 2008, namely
that the plaintiff appeared to be in pain. In his view, she seemed to be
struggling to cope with her duties. Her work performance was not satisfactory
and she did not seem upbeat and cheerful as she had previously been.
[68]
Another witness called by the plaintiff was Terry Volpatti. He is the
accountant and office manager at Westcoast Cylinders and is the plaintiffs
supervisor there. He spoke to his observations of her time at the company. In
his view, it appeared that she was having difficulty making herself physically
comfortable at the workplace. Generally, he described her as being a well-regarded
employee.
[69]
The plaintiff tendered two reports of Dr. Toews. He is the
plaintiffs family physician. His reports were dated November 2008 and July
2012. He also testified at trial.
[70]
His evidence is that in the summer of 2011, he recommended to the
plaintiff a reduction of her hours. Also, in early 2012, he diagnosed the
plaintiff as having reactive depression. He did not prescribe anti-depressant
medication.
[71]
In July 2012, Dr. Toews diagnosed the plaintiffs condition as one
of chronic pain syndrome. His prognosis for a full recovery was optimistic,
although he testified that his opinion was formed without the benefit of the
more intensive investigations and opinions of two other witnesses, Dr. Koo
and Dr. Weiss. In light of the information contained in their reports, his
view as to her prospects for full recovery was more restrained and guarded.
[72]
Dr. Koo is a specialist in physical medicine and rehabilitation. He
conducted three assessments of the plaintiff and prepared a total of four
reports. For the most part, I concluded that the work he had done was precise
and thorough and that his opinions were well-based upon careful investigation.
His opinion, as expressed in his report of October 22, 2012, is that the two
motor-vehicle accidents at bar resulted in the following injuries to the
plaintiff:
1. Acute on chronic cervical soft tissue injury, with
myofascial pain of the trapzezius, scalene and paraspinal muscles more
pronounced on the left, and left peri-scapular muscles including levator
scapula, rhomboids and teres major, radiating to mid back;
2. Cervicogenic headaches;
3. Posttraumatic thoracic outlet syndrome with
intermittent numbness and tingling, more pronounced on the left;
4. Acute on chronic soft tissue injury of the
thoracolumbar paraspinal muscles, with mechanical low back pain more pronounced
on the left;
5. Lateral thigh pain originating from iliotibial
band tightness;
6. Exacerbation of posttraumatic stress and anxiety
with hypervigilance and panic symptoms;
7. Deconditioning, weight gain and loss of normal
cervical and hip adduction range of motion;
8. Hypermobility syndrome (pre-existing); and
9. Adjustment reaction.
[73]
With respect to the effect of the two prior motor-vehicle accidents,
that is the plaintiffs condition immediately before the subject accidents, his
evidence is that the earlier accidents rendered the plaintiff susceptible to a
more serious injury and that their effect contributed to the protracted nature
of her recovery from the subject accidents. He also expressed the opinion that,
if the two subject accidents had not occurred, the plaintiff would likely have
continued to enjoy gradual improvement from the prior accidents and that her
circumstances would be markedly different. In his opinion, prior to the first of
the subject motor-vehicle accidents, the plaintiff was in the order of 70%
recovered from the previous accidents. His opinion is that, but for the subject
accidents, her recovery may have plateaued or it may have gone on to a full
resolution.
[74]
He testified that where successive whiplash injuries are incurred, the
effects are often cumulative. The consequence is that persons with unresolved
injuries are more likely to have protracted or permanent injury from subsequent
insults.
[75]
In Dr. Koos opinion, the prognosis for further improvement is
poor. He opines that she is likely to have intermittent mechanical neck and
back pain aggravated by daily postural demands and so her present condition may
be permanent. He notes that the plaintiff continues to have pain and activity
limitations which are related to the soft tissue injuries and myofascial pain.
[76]
Dr. Koo observes that the demands of young motherhood can also have
an exacerbating effect upon pain. In that regard, he recommends that
consideration be given to providing support respecting household chores and
duties.
[77]
Dr. Ganesan, a psychiatrist, examined the plaintiff and prepared a
report which was tendered by the plaintiff. He also testified at trial. His
evidence was generally supportive of the plaintiffs position that she
experienced pain, anxiety and depression symptoms as a consequence of these
accidents and that these are factors that will have some impact in her ongoing
future circumstances.
[78]
The evidence of Janet Hunt, an occupational therapist, is before the Court.
She assessed the plaintiff on two occasions, providing reports respecting
functional/work capacity and the cost of future care.
[79]
Ms. Hunts conclusion is that the plaintiff, by reason of her
present condition, is not suited to work in the restaurant industry. As well,
she considers the plaintiff is not well-suited to a full-time clerical job,
such as she has at Westcoast Cylinders. In the witness opinion, the plaintiff
is better suited to a reduced schedule, which she defines as up to 33 hours per
week.
[80]
Additionally, this witness recommends some housekeeping assistance to be
provided for the plaintiff.
[81]
Dr. Wallace is a psychological and vocational rehabilitation
consultant. He conducted an examination of the plaintiff and provided a report
dealing with a number of elements, including the plaintiffs vocational
aptitudes, capabilities and limitations in the context of available avenues for
her and her prospects. He was not called to be cross-examined.
[82]
Dr. Grypma is an orthopedic surgeon. He conducted an examination
and assessment of the plaintiff and prepared a report at the request of the
defendants. The essence of his conclusion is that the plaintiff sustained a
very mild soft tissue injury in each of the subject accidents, and that
resulted in an aggravation of pre-existing symptoms in her neck. Generally, he
seems inclined to attribute her neck symptoms and back symptoms to deconditioning
and inactivity, and opines that these are unlikely to be consequences of the
motor-vehicle accidents. He observed that her subjective complaints are not
supported by objective findings. He offers the observation that she would
benefit from regular home exercise and can see no reason why she would not be
able to return to full duties at work and resume her leisure activities. In
short, he finds very little of any substance arising from his investigations. His
conclusions are quite markedly at odds with those of Dr. Koo.
[83]
Also before the Court is the evidence of Dr. Weiss. She is a
psychiatrist who examined the plaintiff at the request of the defendants. Her
report is filed and she testified at trial.
[84]
It is apparent that Dr. Weiss was quite thorough in her
investigation. It is also evident that she was favourably impressed by the plaintiff;
she concluded that Ms. Dunne was a stoic and determined individual.
[85]
In her report, Dr. Weiss has provided her diagnosis:
Axis I (psychiatric disorders) after the accident:
1. Generalized
anxiety disorder (GAD)
2. Depression
(MDD)
3. Post
traumatic stress disorder (PTSD)
4. Panic
attacks which do not meet the criteria for panic disorder (5 attacks/2 years
secondary to re-experiencing the accident)
5. Chronic
pain
6. Driving
phobia
Axis: II (personality disorders, developmental delay): None
Axis III (medical conditions): Neck and back pain.
Axis IV (stressors): Severe
1. Death of
four family members
2. The MVAs
Axis V: (functioning): 60
CURRENT CONDITION: Two years
following her last accident, Tara has learned to live with chronic pain. She no
longer takes medication, even when the pain is about a 4/10. At noted by the
OT, she minimizes her symptoms and her numerical rating of her pain was quite a
bit lower than the actual impairment she suffers. Despite her stoic attitude,
she is still constantly worried, fearful of the consequences of pain on the
pregnancy, has a damaged sense of self worth, is hyper vigilant, fearful of
driving, and has multiple symptoms of anxiety.
Conclusions with respect to the plaintiffs
condition
[86]
The plaintiff has described the effects and impacts of the two subject
motor-vehicle accidents upon her. Her description includes the discomfort she
suffered and that she says she continues to suffer as well as the measures she
has taken to find relief and recovery.
[87]
In a matter such as this, where her complaints are really not easily
amenable to objective verification, the court is obliged to take considerable
care in examining all of the evidence in order to be satisfied that the
plaintiffs reports of injury and discomfort are credible. That said, I do not
understand it to be the case that there should be a presumption that such claims
are without merit.
[88]
As well, in this case, there are two other considerations that mandate a
careful and critical assessment of the claim.
[89]
The first of these is that, in each of the accidents, the collisions
were of the low velocity type – there was minimal material damage caused. The
second factor is that some of the injuries that the plaintiff says she incurred
are not physical but rather psychological.
[90]
Dealing first with the low velocity and minimal material damage aspect,
I note that the defendants have tendered a report prepared by an engineer with
expertise in the field of accident reconstruction. The essence of his opinion
is that in each of the subject collisions, the velocity change experience by
the plaintiffs vehicle was probably less than about 12 km. per hour. The
photographs contained in his report also demonstrate that the damage done to
the cars by the collision was quite modest.
[91]
I appreciate that to have to been the case and I accept that common
sense might generally dictate that a minor collision would not be expected to
result in significant injuries. However, there is simply no basis upon which I
am able to extrapolate the information concerning the velocity of the collision
to a conclusion that the plaintiffs injuries must therefore necessarily be of
a certain type and degree. As has been judicially observed in a multitude of
cases, the court cannot conclude that because the impact of the collision was
relatively minor, then any resulting injuries must necessarily be minor as
well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R.
(2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):
Significant
injuries can be caused by the most casual of slips and falls. Conversely,
accidents causing extensive property damage may leave those involved unscathed.
The presence and extent of injuries are to be determined on the basis of evidence
given in court. Objectivity is thus preserved and the public does not have to
concern itself with extraneous philosophies that some would impose on the
judicial process.
The magnitude of the collision is one factor the court will
take into account, but it will be considered in the totality of the evidence.
Generally, its effect with respect to determination of resultant injuries will
not be great.
[92]
As for the issue of psychological injuries, it is recognized that such
claims, where there is no tangible, objective support to confirm the condition,
and where the condition continues past what one might expect to be a sensible
or reasonable recovery, have to be carefully scrutinized. In Yoshikawa v. Yu
(1996), 21 B.C.L.R. (3d) 318, 62 A.C.W.S. (3d) 288 (C.A.), Justice Lambert discussed
the conceptual approach to assessing such a claim. Without treating the matter
too simplistically, it seems to me that the considerations a trier of fact must
take into account include these:
a) Is the pain or
discomfort or unusual condition real? Is the plaintiff actually experiencing
it?
b) The cause of the
condition must be genuinely related to the defendants wrongful act, not driven
by any improper motivation of the plaintiff, such as seeking sympathy or care
for cares sake, or to gain compensation.
c) A claim
will not be compensable if the plaintiff could overcome the condition by
exertion of his or her own resources – willpower and determination. The court
must be satisfied that the plaintiff genuinely seeks to overcome the condition.
d) Expert medical
or psychological opinion evidence relevant to the issue should be carefully scrutinized
and considered by the court.
[93]
That summarization is neither elegant nor, I am sure, perfectly
comprehensive. However, it attempts to capture the courts task: recognizing
that psychological injuries can result from the tortfeasors conduct, and
because such injury is usually not verifiable by the usual objective means, the
court must examine all of the circumstances and all of the evidence, with care,
to ensure that such claims are honest and real. The task is complicated as well
because of the difficulty with respect to predictions and prognosis in such
matters.
[94]
With those observations made, I turn now to my assessment of the injuries
that the plaintiff incurred in these two accidents and the effects that they
have had upon her life and her circumstances.
[95]
The principal evidence is that of the plaintiff. She is the one who has
experienced these events and she is uniquely able to describe them. Of course,
other witnesses and other evidence are to be considered as well.
[96]
I found the plaintiff to be an essentially truthful and reliable
witness. Her description of the pain and discomfort she experienced has not been
meaningfully cast in doubt. Of course, given the magnitude of the documentary
trail that cases of this nature usually generate, it is not surprising that
points of inconsistency can be found. In the present matter, there were
examples of that phenomenon. I will cite one:
·
The plaintiff testified at trial that, after the second subject
motor-vehicle accident, she pulled her vehicle over not once but twice, once to
speak with her husband by telephone. Defence counsel observes that in her
statement to ICBC, the plaintiff did not make mention of that.
[97]
With respect, and taking that example, I see nothing of real importance
in that discrepancy. Nor did I find other such contradictions to be
meaningfully relevant to my assessment of the plaintiff as a witness. Ms. Dunnes
descriptions and her testimony were reasonably well supported by the evidence
of other witnesses that were called.
[98]
The matter of describing in perfectly accurate detail such matters will
inevitably be difficult. Recollections are not always perfect. If there was any
reason to question the plaintiffs reliability, it would be on the basis that
her view of matters may be, to some extent, coloured by a sense of frustration
at her plight.
[99]
Based upon all of the evidence, I make the following conclusions:
1. At the
time of the first subject motor-vehicle accident, her condition (as it relates
to injuries from her two prior motor-vehicle accidents) was that she was
largely recovered. I find that she was experiencing relatively minor and
infrequent symptoms of those injuries, namely some neck pain and back pain. In
other words, those injuries had not fully resolved. It is however, in my view,
telling that she had settled both of those claims.
In a related vein, I accept the
evidence (specifically the evidence of Dr. Koo) that, at the time of the
first subject motor-vehicle accident, her path of recovery from the two prior
motor-vehicle accidents was on track for a continuing and gradual improvement.
Her full recovery was a reasonably likely possibility.
2. The first
motor-vehicle accident resulted in soft tissue injuries. Those injuries
impacted her ability to perform her job. They caused her pain and suffering and
interfered with her ability to engage in her usual recreational activities.
They also had a discernible psychological impact upon her. Although she pursued
rehabilitation programs that were recommended and available for her, the
discomfort persisted.
3. The
effects of the second motor-vehicle accident were similar and, to some extent,
cumulative.
4. In terms
of the physical injuries that the plaintiff sustained in the course of the two
subject motor-vehicle accidents, I generally accept the evidence of Dr. Koo.
5. There was
a psychological dimension to the fallout that the plaintiff incurred. She
experienced, and continues to experience, although in a diminishing way, real
anxiety and an actual distress reaction while travelling in an automobile. The
evidence of other witnesses confirms that she was a difficult passenger. The
proposition is logical and I have no reason to disbelieve it.
6. There was
another aspect as well: that is a feeling of reduced competence and confidence
which resulted in the plaintiffs decision to leave her job at Joeys. She
subsequently experienced some difficulty in finding an acceptable vocational
track. In my view, there is some connection between the consequences of the
injury and those circumstances.
7. With
respect to the specifics and scale of the psychological aspect of her
difficulties, I generally accept the evidence of Dr. Weiss. Her findings
are set out earlier in these reasons.
The plaintiffs damage claims
[100] Before
dealing with the individual heads under which the damage claims are advanced,
there are certain preliminary matters to be addressed.
[101] They
involve the notion of causation, the matter of the divisibility and
indivisibility of injuries and the thin skull/crumbling skull issue that I
mentioned earlier.
[102] The basic
rule is that a defendant is liable for any injuries caused or contributed to by
his negligence. The test for causation, other than in special circumstances not
present here, is the but for test.
[103] Even though
there may be multiple causes of the injury, as long as the defendants act is a
cause of the damage, then the defendant is fully liable for that damage. If the plaintiff has multiple injuries which are divisible
and the court can determine which tort caused which injury, the respective
tortfeasors are only responsible for the injury they caused: Athey v.
Leonati, [1996] 3 S.C.R. 458 at paras. 24-25. On the other hand, if
the plaintiffs injuries are indivisible, any and all defendants who caused or
contributed to the injuries will be fully liable for them: Athey at para. 25.
[104] In
assessing damages, the starting point is the plaintiffs original position,
i.e. before the defendants tortious act. The defendant is not obliged to put
the plaintiff in a position that is better than that original position, and is
not required to compensate the plaintiff for damages that he would have
suffered anyway.
[105] The
crumbling skull principle is engaged where, at the time of the event, the
plaintiff had a symptomatic pre-existing condition or a pre-existing condition
and there was a measurable risk that there would have been a loss in any event.
That factor is considered in the damage assessment.
[106] The thin
skull rule is based on the notion that a tortfeasor takes his victim as he
finds him, and that includes weaknesses or propensities to unusual manifestations
of harm or injury.
[107] The Court
in Athey summarized the two principles at para. 35: [t]he defendant
is liable for the injuries caused, even if they are extreme, but need not
compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyways.
[108]
More recently, the British Columbia Court of Appeal explained the
relationship between divisible/indivisible injuries and the thin/crumbling
skull principles in Moore v. Kyba, 2012 BCCA 361 at para. 43:
If the injury is indivisible, then the plaintiff is entitled
to be compensated for the loss flowing from the indivisible injury. However, if
the plaintiff has a pre-existing condition and there was a measurable risk that
the condition would have resulted in a loss anyway, then that pre-existing risk
of loss is taken into account in assessing the damages flowing from the
defendants negligence.
[109] Applied to
the case at bar, it is my conclusion that the injuries that the plaintiff
suffered and for which she seeks compensation in these actions are indivisible as
between the defendants. The Court is asked to decide what compensation she
should be awarded for a constellation of difficulties she says were caused by
these two motor-vehicle accidents. While I might, I suppose, make some minor
allocation on a temporal basis, particularly with respect to the injuries and
effects she experienced after the first and before the second collision, the
more sensible and logical approach is to recognize that the conditions which
are to be addressed are substantially indivisible – the nature of the injuries
are similar and the consequences of the second are a continuation and an
overlay of the first.
[110] To attempt
to separate or divide the plaintiffs injuries would be largely an exercise in
frustration and futility. Accordingly, I conclude that each of the defendants is
liable for the damages which the plaintiff has proven; there will be no
division.
[111] With
respect to the thin skull/crumbling skull issue, I find that, at the time of
the first subject motor-vehicle accident, the plaintiff was, for the most part,
recovered from the injuries which she sustained in the two prior accidents. She
was experiencing occasional episodes of back and neck discomfort but I am
satisfied that the likelihood is that she would have continued on a course of
effectively full or substantial recovery.
[112] I find no
reasonable basis to conclude that, but for the motor-vehicle accidents at
issue, she would have experienced the injuries and ongoing difficulties that
she did. That observation applies to both physical and psychological injuries.
Non-pecuniary damages
[113] A
plaintiff is entitled to receive an award of damages under this head as
compensation for the pain, suffering, loss of enjoyment of life and loss of
amenities resulting from the tortfeasors negligent conduct. Determination of
an appropriate award will necessarily take into account the injuries and the
effect they have had on the particular plaintiff.
[114]
In Stapley v. Hejslet, 2006 BCCA 34, a number of factors,
described as a non-exhaustive list of matters to be considered, was spelled
out:
(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;
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).
[115] There are
three observations to be made. The first is that the amount of non-pecuniary
damages is a one-time award. It must take into account both the effects which
have been suffered to date of trial and it must also, where circumstances
warrant, have a prospective dimension: it must reflect an assessment of what
the future will likely hold and provide accordingly.
[116] Secondly,
the award of damages must be fair to both the plaintiff and the defendant.
[117] Finally,
there is the matter of referring to other awards made by other courts in
circumstances that have similarities to the case at bar. While that exercise
can be useful, it is generally true that the specifics of any particular case
will be unique, and so, while the process of comparison can be of assistance,
it is by no means a mechanism of calculating a proper award by comparative
analysis.
[118] Turning to
the matter at hand, the plaintiffs position is that the pain, suffering and
damage to her ability to enjoy her life has been of a high order. In the
plaintiffs submission, this effect goes back to when she was 19 years old, the
time of the first accident. The plaintiff says that she was an active and happy
person, working at a job she loved and with good reason for optimism as to her
future in that vocation. Her lot seemed bright.
[119] The
plaintiff says that as a consequence of the accidents, she was left with
chronic pain in her neck and back and frequent headache. That has impacted upon
her ability to enjoy recreational activities. There has been a corresponding
emotional effect in that, as a consequence of these accidents, in addition to
chronic pain, she suffers from anxiety, Post Traumatic Stress Disorder (PTSD)
and depression. Those effects have had other implications, including marital
difficulties, and a persistent state of anxiety while travelling in an
automobile. In short, she says that her ability to enjoy life has been
substantially damaged. She is concerned that these conditions will adversely
and meaningfully impact her ability to play a full parental role with her
children.
[120] To
summarize, she says that the effects of these accidents have been significant
and multi-faceted; she says that her prognosis is not good and that she will
likely continue to experience chronic pain and the emotional adversity that she
is presently facing. In all the circumstances, she contends that an appropriate
award is in the order of $135,000.
[121] She
supports her position by reference to a number of case authorities, reflecting
a quantum of damage awards ranging from a low of $90,000 to a high of $200,000.
[122] The
defendants accept that the plaintiff is entitled to an award of non-pecuniary
damages, but take issue with respect to the nature and extent of the injuries
and their effect, and, therefore, the quantum of a fit award. They say that in
similar cases of chronic soft-tissue injuries with a psychological overlay, the
authorities establish a range of between $45,000 and $75,000.
[123] In
considering the appropriate quantum of damages in this case, I have taken into
account the ongoing discomforts that have resulted from the plaintiffs
soft-tissue injuries, and I accept that there is a reasonable basis to believe
that she will not ever be fully symptom free. I do believe that, with diligent
attention to exercise and lifestyle management, she will be largely able to
keep that situation at a fairly low level and its episodic occurrence
infrequent and intermittent. The evidence satisfies me that the trend is very
much a matter of diminishing acuity.
[124] I accept
that the discomfort has impacted other areas of the plaintiffs life, including
her marital relationship and her ability to be socially comfortable and
content. It is reasonable to expect that her injuries and ongoing affects will
have an impact upon her parental role.
[125] There is
as well the psychological dimension of the plaintiffs injuries. As noted, I
generally accept the findings and conclusions of Dr. Weiss, although,
frankly, knowing what I do of the plaintiffs character and approach to life, I
expect that her resilience and life skill assets will enable her to deal with
her future and her lot more competently than might be predicted.
[126] I have
examined each of the authorities to which I have been referred by counsel. I do
not propose to cite and discuss each for the purpose of these reasons. Some are
less relevant than others. To reiterate a point made earlier, none of them is
this case.
[127] Three of
the cases to which I have been referred are, in my view, particularly useful
and relevant to the assessment of an appropriate award of non-pecuniary damages
in the present case: Olson v. Ironside, 2012 BCSC 546; Murphy v.
Jagerhofer, 2009 BCSC 335 and Shapiro v. Dailey, 2010 BCSC 770.
[128] Taking all
of the circumstances into account, and having regard to the authorities relied
upon by counsel, it is my view that the plaintiff should recover the sum of $110,000
to compensate her for her non-pecuniary damages.
[129] I note
that the defendants contend that the plaintiff has failed to mitigate her
losses, particularly the discomfort she alleges she suffered, by refusing to
act reasonably. The law is clear that a plaintiff in a personal injury action
has a positive obligation to act reasonably in mitigating her losses. This is
premised on the proposition that the defendant should not be held liable for
damages which the plaintiff could have reasonably avoided. In determining the
issue of mitigation, the defendant has the onus to establish on a balance of
probabilities that the plaintiff has failed to act reasonably and, as well, to
establish the extent to which the damages would have been lessened had the
plaintiff so acted.
[130] Specifically,
it is alleged that her decision that she would not take anti-depressant
medication and did not avail herself of counselling in order to treat her pain,
depression and anxiety was unreasonable; the defendants say that if she had
done so, her condition could have been expected to be less difficult for her.
[131] While
there is some basis in the evidence to conclude that anti-depressant medications
were an available method of treatment for the anxiety and psychological
difficulties the plaintiff was experiencing, I am unable to find that such a
course of treatment was recommended for her in such a way that failing to do so
was an unreasonable decision which undermined her recovery process. In so
deciding, I take into account that the plaintiff has provided a viable and
sensible explanation for her decision, namely that she had observed firsthand
the experience of her brother with respect to such medications, and that informed
her view. Her pregnancy was also a consideration in her decision.
[132] In short,
I am unable to conclude, on a balance of probabilities, that the plaintiff
acted unreasonably in this regard. Indeed, it seems to me that, generally
speaking, she was quite appropriately diligent in following courses of conduct
that were recommended for her recovery.
[133] There will
be no reduction of damages to which she would otherwise be entitled because of
a failure to mitigate her loss by acting unreasonably.
Past wage loss
[134] The
plaintiff claims damages arising from her contention that, between the time of
the first accident and the date of trial, her earnings were less because of the
effects of the injuries.
[135] Properly
speaking, the claim is characterized as compensation for a diminished earning
capacity for that period. In Rowe
v. Bobell Express Ltd., 2005 BCCA 141 the Court said, at para. 30, [t]hus, in my view, a claim for what is
often described as past loss of income is actually a claim for loss of
earning capacity; that is, a claim for the loss of the value of the work that
the injured plaintiff would have performed but was unable to perform because of
the injury.
[136]
As detailed earlier, at the time of the motor-vehicle accident in
January 2008, the plaintiff was working at Joeys. Her evidence is that her
ability to perform was adversely affected by the effects of her injuries and
that eventually, in April 2008, the frustration of the matter caused her to
decide to leave that job. She resigned. She then took employment at a similar
restaurant operation, Cactus Club. In both situations, she says that she very
much aspired to advance in the industry, to a more senior management role.
Again, at Cactus Club, she encountered difficulties because of physical
limitations and also the fact that there was no available opportunity for her
to progress to a management level.
[137]
Similar to the Joeys situation, she elected to resign from Cactus Club.
After taking some time to consider her course of action, and in that interval
having her wedding, the plaintiff took a job at Megahair. That did not turn out
well; the reasons were more complex; if the effect of the motor-vehicle
accident injuries was a factor, it was minor. Finally, she took a job at
Westcoast Cylinders. That in fact has turned out to be a fairly positive
situation. The plaintiff seems to be well-regarded there and the indications
are that there is scope for advancement and greater job responsibility.
[138]
Of course, the evidence also establishes that her ability to be there in
an uninterrupted and full-time capacity has been limited by issues attributable
to her injuries from the accidents.
[139]
Determining the proper award is essentially a function of comparing
actual earnings over the relevant time span to a reasonable estimate of what
the plaintiff could have and should have earned, but for the accidents.
Depending on the circumstances, the determination of an appropriate award may
be amenable to calculation or, as in this case, it is quite significantly a
matter of judgment and assessment.
[140]
In the plaintiffs submission, the range for an appropriate award of
damages under this head is somewhere between a low of $22,000 and a high of
$63,000. She says the court should properly award the sum of $50,000.
[141]
The defendants say that the plaintiff continued with part-time
employment following the first and second subject motor-vehicle accidents and
that, in fact, she increased her employment earnings thereafter. In the
circumstances, they contend there is no past loss of income to be compensated.
[142]
My conclusion is that the plaintiffs ability to earn was adversely
impacted by the actions of the defendants. That seems clear beyond argument.
The more difficult issue is the quantification.
[143]
My view of the matter is informed by the conclusion that her track
record prior to the first subject motor-vehicle accident was essentially
something less than a full-time, 40 hour per week, pattern of employment at
Joeys. The restaurant industry is one where the norm is flexibility and a
tendency to a largely part-time labour force. The assumption contained within
the plaintiffs position, of a fairly substantial increasing rate of earning,
is a possibility, but by no means an assured or even likely outcome.
[144]
Relevant as well is that some of the reasons for her particular earning
pattern are due to personal choices, such as time off for her wedding and her
decision to reflect upon her ongoing career path.
[145]
Finally, the job she took at Westcoast Cylinders has turned out to be a
reasonably worthwhile situation, considering that the plaintiffs job skills
and qualifications are not specialized and are, in fact, fairly modest.
[146]
Taking all of that into account, I find the plaintiff is entitled to an
award under this head of damages in the amount of $42,500.
Loss of future income earning capacity
[147] The plaintiff
seeks an award of damages to compensate her for the loss of her future earning
capacity that she says was a consequence of these accidents.
[148] Conceptually,
an individuals capacity to earn an income is viewed as a capital asset. As
award for future loss of earning capacity is thus compensation for a pecuniary
loss. The authorities make clear that determination of the award is an
assessment, not a calculation. It entails comparing what was the likely future
of the plaintiff if the accident had not occurred and the likely future of the
plaintiff after the accident has taken place.
[149]
Madam Justice Dardi has provided a helpful explanation of the relevant principles
in Cruz v. Rahsid, 2013 BCSC 1530. That part of her decision says this:
[98] The legal principle that governs the assessment for loss
of earning capacity is that, insofar as is possible, the plaintiff should be
put in the position he or she would have been in but for the injuries caused by
the defendants’ negligence: Lines v. W & D Logging
Co. Ltd., 2009 BCCA
106 at para. 185. It is well-settled that an award for
future loss of earning capacity represents compensation for a pecuniary
loss: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA
144 at para. 32. Compensation must be made for the loss of
earning capacity and not for the loss of earnings: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229; X. v. Y, 2011 BCSC
944 at para. 188.
[99] The recent jurisprudence of the Court of Appeal has
affirmed that the plaintiff must demonstrate both impairment to his or her
earning capacity and that there is a real and substantial possibility that the
diminishment in earning capacity will result in a pecuniary loss. If the
plaintiff discharges that requirement, he or she may prove the quantification
of that loss of earning capacity either on an earnings approach or a
"capital asset" approach as described in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (S.C.); Perren v. Lalari, 2010 BCCA
140 at para. 32; Morgan v. Galbraith, 2013 BCCA
305 at para. 53. Regardless of the approach, the court
must endeavour to quantify the financial harm accruing to the plaintiff over
the course of his or her working career: Pett v. Pett, 2009 BCCA
232 at para. 19; X. v. Y at para. 183.
The authorities establish that an inability to perform an occupation that is
not a realistic alternative occupation is not proof of an income loss.
[100] As enumerated by the court in Falati
v. Smith, 2010 BCSC
465 at para. 41, aff’d 2011 BCCA
45, the principles which inform the assessment of loss of earning
capacity include the following:
(i) The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA
49 at para. 101. Hypothetical events are to be given
weight according to their relative likelihood: Athey, [1996] 3
S.C.R. 458 at para. 27.
(ii) The court must make allowances for the possibility
that the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency
must show a "realistic as opposed to a speculative
possibility": Graham v.Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).
(iii) The court must assess
damages for loss of earning capacity, rather than calculating those damages
with mathematical precision: Mulholland (Guardian ad litem of)
v. Riley Estate (1995), 12
B.C.L.R. (3d) 248 (C.A.) at para. 43. The assessment is
based on the evidence, taking into account all positive and negative
contingencies. The overall fairness and reasonableness of the award must be
considered: Rosvold v. Dunlop, 2001 BCCA
1 at para. 11.
[150] In the
matter at bar, the plaintiffs evidence is that she was on course to follow a
career in the hospitality industry: she aspired to progress and advance to the
ranks of restaurant management.
[151] She had
established something of a vocational trajectory: she had worked in the
introductory ranks, as a server and a hostess and related assignments, and had
done some supervisory work before she left Joeys.
[152] I accept
that she enjoyed the work and hoped to continue. The evidence discloses that
she had demonstrated some aptitude and that she established some personal
credibility, at least with Joeys.
[153] I also
accept that her decision to drop out of that career path was substantially
because the effects of her injuries hampered her ability to do the work with
the competence and confidence that was necessary to enable her to be
well-regarded and subject to consideration for advancement.
[154] In the
assessment of this aspect of her claim, I proceed from the premise that the
plaintiff is able to perform the duties of the type she presently has at
Westcoast Cylinders, although that is not to confine the analysis to that
particular job. Those duties are consistent with and compatible with her stated
vocational aspiration of operations management. The evidence discloses that she
is well-regarded and that the employer is apparently pleased with her. There is
every reason to expect that she will be able to hold that job or one like it
for so long as she wants, and to the extent it can be done within the demands
of her parental duties.
[155] I say that
with one caveat. I will accept for the purpose of this analysis that the
plaintiff has practical limitations that will prevent her from working 40 hours
per week, but that she will be able to work 32 hours per week, assuming her
other priorities and obligations permit. The limitation of which I speak is
with respect to the pain and discomfort that she experiences while at work.
That observation generally applies with respect to other employment avenues
that she might follow, although there is some reasonable basis to expect and be
hopeful that limitation will, as time proceeds, be less.
[156] The
analysis necessary to assess the value of the loss requires considering the
situation comparatively. Have the effects of the motor-vehicle accidents prevented
her from pursuing any vocational career – one which she was otherwise capable
of pursuing – in which she would have enjoyed a remuneration track, such that
the effect of the injuries has limited her capacity to do that, with a resulting
diminishment of her ability to earn income?
[157] Put
otherwise, the question is this: Is there real and substantial possibility that
the diminishment of her working capacity and abilities will result in pecuniary
loss?
[158] In this
case, the plaintiff says that, if it is accepted that she has reached her
maximum medical recovery, and her current level of functioning is likely
permanent, then it is reasonable to conclude she will likely have a residual
earning capacity of approximately $30,000 per year. The plaintiff says that,
but for the motor-vehicle accidents, it is likely that she would have continued
to advance in her career in the restaurant industry. She says she had the
talent, drive and determination to succeed. In her submission, mid-level
managers earn between $40,000 to $45,000 per year and general managers of such
restaurants are able to earn in excess of $100,000 per year.
[159] Those
premises are considered in the calculation which was provided by the labour
economist Mr. Carson. Using these numbers, his conclusion yields a range
of between $262,500 to $1,837,500. The median is $787,560.
[160] In the
submission of the plaintiff, the range of an appropriate award is between
$350,000 and $1,000,000.
[161] The
defendants say that the evidence does not support that the plaintiff will
suffer a pecuniary loss as a result of the accident. They say it is incumbent
upon the plaintiff to demonstrate a substantial possibility that lost capacity
will result in pecuniary loss. In the submission of the defendants, the
evidence does not establish a real and substantial possibility that the
plaintiff will work less than she ever otherwise would have because of injuries
from the accidents, and accordingly, they say the plaintiff is not entitled to
damages for loss of future income earning capacity.
[162] In my
view, there is some reasonable possibility that the plaintiff would have
continued to work in the restaurant industry. However, to deal with the
specific issue, it is necessary to factor into the assessment a number of real
world considerations. Among them are the following:
·
There is no assurance that the plaintiff would have continued in
that vocation. Her decision to have a family, which she has started and hopes
to expand, would seem to derogate from the proposition that she would have a
full-time management career in that industry.
·
There is no assurance that the plaintiff would succeed in
attaining a full-time management position. The fact is, a great many men and
woman are engaged in that industry; the evidence and common sense support the
conclusion that only a few carry on and find those managerial positions. It is
also relevant, in my view, that the rank and file of the industry is quite
significantly populated by young persons. Again, with respect, that to my mind
detracts from the likelihood of the career advancement that the plaintiffs
argument relies upon.
[163] The
plaintiffs most optimistic scenario requires the Court to consider and weigh the
likelihood that she would have pursued and achieved a full-time management role
in the restaurant industry as a long-term career, while at the same time having
and raising her family.
[164] Obviously
there is no scientific way of making that determination, but the task at hand
involves examining possibilities, considering whether those are real and
substantial, and factoring in, as best one can, the value of the contingencies.
[165] While I
accept there is some possibility that the plaintiff would have been able to
pursue such a career path in the restaurant industry, I am convinced that the
likelihood of that outcome would not be great.
[166] I have
examined the information that is contained in the evidence of Mr. Carson
and of Gordon Wallace, the vocational assessor. In a case such as this, with
the plaintiffs limited workplace history and the general nature of her
vocational qualifications and aspirations, all of that must be taken into
account. Her age is a factor as well. I also consider it relevant that the
plaintiff has not generally demonstrated a keen inclination to pursue post-secondary
education or training, although she did enroll for a course at BCIT at the
behest of her current employer. My sense is that was a quite specific and
situational matter.
[167] All of
these many factors and considerations tend to make more difficult the task of
quantifying the value of the diminishment of the capital asset.
[168] In the
final analysis, it is my conclusion that the plaintiff is entitled to an award
of damages under this head, but I am unable to accept that its quantum is in
the range that the plaintiff argues.
[169] In my
view, a fit and proper award of damages under this head is in the amount of
$275,000.
Cost of future care
[170] The
plaintiff seeks an award of damages under this head. In her submission, there
are a number of elements of future care which the evidence establishes to be
reasonably necessary to promote her mental and physical health. Those include
treatment, both psychological and physical, support with respect to
housekeeping and child care.
[171] The
plaintiff sets out a number of one-time expenses, including physiotherapy,
personal training, occupational therapy costs, equipment and vocational counselling.
As well, she claims compensation for a number of ongoing costs, including three
sessions per year with a personal trainer, for her lifetime, and massage
therapy on the same basis. She also seeks damages to compensate the cost of
counselling including couples counselling, housekeeping assistance for her
lifetime and child care assistance for five years. The total sum she claims
under this head is $75,233. (In fact, I believe there was an arithmetic error
in the calculation of that sum, and that the correct total is $72,933). The
plaintiff notes that her claim does not include additional housekeeping and
child care that would be necessary if her husband is away for extended periods
of time, nor does it reflect the risk she could become a single parent.
[172] In total,
taking all contingencies into consideration, the plaintiff submits that the
appropriate range for cost of future care is between $80,000 and $100,000.
[173] The defendants
say that there should be no award made under this head. They say that the
plaintiff has extended benefits through her husbands employment which will
cover a number of the expenses; they say that whether the plaintiff will
actually incur the expenses is a matter that should be informed by the limited
nature of the special damages that she has incurred; and they say that the Court
should consider whether there are less expensive methods for providing the
recommended care.
[174] Additionally,
in a broader conceptual sense, the defendants say that the types of damages
which were intended to be awarded for cost of future care were not intended to
compensate plaintiffs with injuries such as this plaintiff has, but rather were
intended to compensate those who suffered from catastrophic injuries.
[175]
In Gignac
v. Insurance Corporation of British Columbia, 2012 BCCA 351, the Court, in
dealing with the matter of such awards, said the following:
[29]
The purpose of the award for costs of future care is to restore,
as best as possible with a monetary award, the injured person to the position
he would have been in had the accident not occurred.
[30]
The award is based on what is
reasonably necessary on the medical evidence to promote the mental
and physical health of the plaintiff: (Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (B.C.S.C.) and adopted in Aberdeen v. Zanatta, 2008
BCCA 420 at para. 41.
[176] In my
view, applying that standard, the plaintiff has established a basis upon which
some award should be made in respect of future care costs. That said, I have
difficulty accepting the extent of some of those. It seems to me that some of
the claims tend to be more in the nature of would be nice to have, as opposed
to necessary.
[177] While I
would not say that any specific element of the future care claim is clearly
not reasonably necessary on the evidence to promote the mental and physical
health of the plaintiff, I am not convinced that the extents and durations are
actually and realistically necessary.
[178] In the
result, the award will be less than the sum claimed. In so ruling, I am
confident that the plaintiff is best situated to decide how that future care
will be managed, and I am also confident that the award will be adequate in
providing that care.
[179] It is not,
in my view, the role of the court to micromanage the manner in which the
plaintiffs future care will proceed, nor it is anything that a court can do
with any precision. Accepting that there will be a number of care elements
required by the plaintiff as a consequence of the effects of the defendants
actions and taking into account the contingencies which apply, it is my finding
that a fit and proper award for the cost of future care is $70,000.
Special damages
[180] There is a
dispute by the parties with respect to this claim. The defendants accept that
the plaintiff is entitled to recover the cost of physiotherapy, massage therapy
and fitness expenses that she seeks. It appears to me that one of the principal
basis upon which exception is taken is with respect to claims for travel costs
and tolls. The defence says that the Court should assess whether it is
comfortable with the accuracy of the mileage on the basis that the plaintiff
moved several times and further, the defence submits that it would be
reasonable for these trips to be combined with other errands or that these
trips such as driving to the gym would have been taken regardless.
[181] Upon
reflection, it is my view that the expenses were reasonably incurred and that
the plaintiff should be entitled to recover special damages in the amount
$6,464.76.
Conclusion
[182] In the
result, I find that the plaintiff has sustained injuries resulting from the two
subject motor-vehicle accidents and she is entitled to be compensated. The
award of damages are as follows:
Non-pecuniary
damages: $110,000
Past wage loss: $42,500
Loss of future
earning capacity: $275,000
Cost of future
care: $70,000
Special damages:
$6,464.76
Total: $503,964.76
[183] In the
absence of there being considerations of which I am unaware, the plaintiff
shall recover her costs of this action. If necessary, the parties are at
liberty to make arrangements through the New Westminster Supreme Court
Scheduling to provide further submissions on that issue.
The Honourable Mr. Justice Williams