IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140709

Docket: M140121

Registry:
New Westminster

Between:

Darlene May
Rogalsky

Plaintiff

And

Randolph Lee
Harrett

Defendant

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.                
Introduction

[1]            
This is an assessment of damages arising out of a motor vehicle accident
that occurred on April 30, 2010 in Abbotsford, B.C., for which the defendant
admits liability.

[2]            
At trial more than four years post-accident the plaintiff contends that
she continues to suffer from neck, upper back, right shoulder and other
injuries, which are essentially chronic and from which she is unlikely to
recover.  She claims damages for non-pecuniary loss, loss of homemaking
capacity, cost of future care, and special damages.

II.              
Background Facts

A.             
The Plaintiff – Background

[3]            
The plaintiff, Darlene Rogalsky, was 53 years of age when the accident
occurred.  She is now 58.  She is married and has two independent, adult
children. She has recently become a grandmother.  She and her husband reside in
their own single family home in Maple Ridge.  They have lived there for 35
years.

[4]            
She is a Certified Dental Assistant.  She has worked as a dental
assistant for the same dentist for many years.  Currently she works as a dental
assistant part-time, two days per week, in a dental office in Maple Ridge.  She
has worked on average two days per week as a dental assistant for at least the last
7 to 10 years.

[5]            
She also works part-time from her home.  The work primarily involves
administration of online registrations for continuing education programs.  This
work is mostly computer based, and takes up on average about one day per week.  She
can do this work at her own pace.

B.             
The Accident, Initial Injuries, and Treatment

[6]            
At about noon on Friday, April 30, 2010, the plaintiff was driving a 1996
Chevrolet Astro minivan she owned jointly with her husband northbound on Vedder
Road in Abbotsford.  She was shopping with her mother, who was seated in the
passenger seat.  The defendant exited the Home Depot parking lot to her right,
attempting to make a left turn in order to proceed southbound on Vedder Road.  In
doing so he obstructed the plaintiff’s path.  The plaintiff braked hard but was
unable to avoid a collision.  The plaintiff’s vehicle collided with the side of
the defendant’s vehicle.

[7]            
There was fairly minor damage to the front, driver’s side of the plaintiff’s
vehicle.  The bumper, fender, hood, grill and lights were damaged.  Including
the replacement parts, the repair costs were estimated at $1,905.  ICBC
declared the vehicle a constructive total loss, but allowed the plaintiff to
keep it on the condition that she repair the lights.  No emergency personnel
attended the accident.

[8]            
The plaintiff testified that she was partially braced for the impact.  She
felt jarred, but felt no immediate physical injury.  Her mother was uninjured.  She
and the defendant exchanged information at the scene.  The plaintiff proceeded
on her way. She took her mother home, and then went to her own home in Maple
Ridge.  She developed a headache, and pain in her upper, mid and lower back.  Several
hours after the accident she went to a walk-in clinic in Maple Ridge.  She
complained of neck pain, pain between her shoulder blades, and headache.  The
doctor prescribed massage therapy.

[9]            
As it happened the accident occurred just three days prior to scheduled
surgery to her gall bladder.

[10]        
The plaintiff testified that on the day after the accident she had a severe
headache, stiffness and soreness in her neck and upper back, and her right
shoulder.  Her pain intensified the next day but she avoided taking medications
such as pain relievers due to the scheduled surgery.  The surgery proceeded as
scheduled on Monday, May 3, 2010.  She took Tylenol 3 for pain relief in
connection with the surgery.  The medication also provided relief from her
accident injuries.

[11]        
Due to the surgery the plaintiff was planning to be away from work for
one or two weeks.  She returned to her usual, part-time work duties two weeks
after the accident.

[12]        
The plaintiff first saw her own doctor, Dr. Ken Burns, for
treatment relating to her accident injuries on May 11, 2010.  He has continued
to treat her regularly since the accident and remains her family physician.  She
complained of neck and back pain, interference with sleep, and pain in her
right shoulder when sleeping.  He too recommended massage therapy treatments.  He
also prescribed Celebrex, a pain relieving medication.

[13]        
She began receiving massage therapy treatment on May 13, two days after
seeing Dr. Burns.  She continued receiving massage therapy treatments once
or twice per week for about five weeks, until the end of June 2010.  Since
then she has continued with massage therapy somewhat sporadically, most
recently in August 2013.  She also had two acupuncture treatments.  She did not
find acupuncture to be helpful.  On August 3, 2010, Dr. Burns prescribed
physiotherapy treatment.  She took some physiotherapy and chiropractic
treatments in 2010 commencing in August, and took a few chiropractic treatments
in 2012 and 2013.  Her last chiropractic or physiotherapy treatment was on
February 1, 2013.

[14]        
In early 2011 she participated in a conditioning and exercise based
rehabilitation program, which she testified was of some benefit.

[15]        
Although the plaintiff contends that performing her work duties has been
made more difficult due to her injuries, she has not lost income as a result of
the accident, and does not claim either past or future loss of income or
earning capacity.

[16]        
Her husband is a school teacher who is of similar age to the plaintiff. 
They plan to retire together, probably in one or two years.

C.             
The Plaintiff’s Pre-Accident Condition

[17]        
The plaintiff testified that prior to the accident her health was
generally good. She had a long-standing thyroid condition for which she took
medication.  She injured her neck in March, 2001 when she saw a chiropractor
for an “adjustment.”  Shortly after this incident she felt “excruciating”
pain.  The pain radiated to her left shoulder and left arm.  She received 12 to
16 physiotherapy treatments and saw a neurologist.  She was diagnosed with a C6-7
disc protrusion on the left side.  She felt substantially recovered by July
2001.  She recalled being practically symptom free in the fall of 2002.  She
testified that as of April 30, 2010, when the accident occurred, she suffered
only from occasional left side neck pain with certain heavier activities.  However
prior to the accident she continued to have chiropractic treatments several
times per year for lower back complaints, and massage therapy treatments occasionally
for neck, shoulder, and back pains.  She received five acupuncture treatments
in December 2009 and January 2010.

[18]        
X-rays of her cervical spine dated August 5, 2010, showed moderate
cervical spondylosis at C5-6 and C6-7 with narrowing of disc spaces,
osteophytes with moderate encroachment on the neural foramina, and facet joint
osteoarthritic changes at these levels.  Dr. Koo, the physiatrist the
plaintiff saw for purposes of a medical legal opinion for this litigation,
summarized this as a “history of cervical degenerative disease.”  He states
that prior to the accident her cervical degenerative disc disease was “mildly
symptomatic with exacerbating activities, was predictable, and unlikely to have
been acutely progressive or spontaneously deteriorate, in the absence of
additional injury or trauma.”

[19]        
Despite some degree of ongoing complaints and treatment, and
pre-existing cervical degenerative disease, the plaintiff testified that she
was virtually symptom free prior to the accident and was unrestricted in her
domestic, work and leisure activities.

D.             
Post-Accident Condition of the Plaintiff

[20]        
When the plaintiff saw Dr. Koo on December 2, 2011, approximately
19 months post-accident and about two and a half years prior to trial, she
reported that her condition had gradually improved since the accident.  She
complained to Dr. Koo of persisting pain and stiffness of her neck, upper
back and shoulders.  She stated that she continued to have some degree of neck
pain and stiffness with provocative activities but had “learned to ignore it.” 
On average she had little pain when not working, but moderate pain towards the
end of a shift as a dental assistant.

[21]        
She complained to Dr. Koo of intermittent moderate headaches,
occurring about three days per week and lasting for up to six hours per day,
brought on by activities such as prolonged sitting and computer work.  She
thought her headaches were related to her neck and back pain.

[22]        
She told Dr. Koo she had suffered from tingling and numbness in her
arms and hands post-accident, but these complaints had gradually improved over
a period of several months.

[23]        
At trial the plaintiff testified that her condition had “plateaued”
since she saw Dr. Koo, in that she had seen little overall improvement
since then.

[24]        
She testified that her sleep had improved. She suffers from severe
headaches several times per month, and has less severe headaches on three or four
days of the week.  Headaches are activity related.

[25]        
She testified that she suffers from neck pain, also activity related,
about four days per week.  The pain does not last all day.  She has activity
related upper back pain of similar frequency.  She has pain in her right
shoulder three to four times per week.  She has low back pain two to three
times per week with activities such as prolonged sitting or driving.  She
moderates or limits her activities in order to control her condition.  She
generally avoids pain medications but takes acetaminophen or ibuprophen for pain
relief about once per week.

[26]        
My impression is that her complaints of pain at trial are in fact worse
than those she reported to Dr. Koo in December 2011.

E.             
Medical and Expert Evidence

1.              
Dr. David Koo, Physiatrist

[27]        
The only medical opinion evidence adduced at trial was that of Dr. David
Koo, a specialist in Physical Medicine and Rehabilitation.  The plaintiff saw Dr. Koo
on one occasion, December 2, 2011, at the request of her legal counsel, for
purposes of a medical legal report.

[28]        
The defendant argues that I should give little or no weight to Dr. Koo’s
opinion evidence.  Among other things the defendant argues that Dr. Koo is
biased in favour of plaintiffs, in that over the last several years he has
prepared approximately 300 independent medical reports, overwhelmingly at the
request of counsel for plaintiffs, and that this work has formed the basis of a
substantial proportion of his income.  During 2012 and 2013 Dr. Koo was
preparing two medical legal reports per week on average.  In 2013 Dr. Koo’s
private independent medical examination (IME) and expert evidence work
accounted for approximately 44% of his income.

[29]        
However in 2014 Dr. Koo has reduced his IME work to one report per
week on average, due to other work commitments.

[30]        
The court is dependent on the ability and willingness of medical doctors
to assist the court by giving expert testimony in personal injury cases.  Many
medical professionals come to derive a significant or even substantial
proportion of their incomes through such work.  That is not an unusual
circumstance.  In some cases it could be a relevant factor to take into account
in assessing the credibility of the opinion evidence.  However in my view, in
this case, the mere fact that Dr. Koo has developed a lucrative sideline
practice from such private work has no impact on his credibility.  His
credentials are not in question, and in fact are impressive.  I found his
report and testimony generally very thorough, careful, precise and fair.

[31]        
The defence also argued that the background facts Dr. Koo assumed
including the information provided by the plaintiff herself were inaccurate,
incomplete or unreliable.  However with one minor exception I am not persuaded
that there are any significant gaps or errors in the assumptions and facts
relied upon by Dr. Koo.

[32]        
I accept Dr. Koo’s diagnosis, which he summarized in his report as
follows:

Based on my review of the information provided and my
interview and examination of Ms. Rogalsky, it is my opinion that the motor
vehicle collision on April 30, 2010 likely resulted in the following acute
injuries and conditions:

1.     Whiplash
mechanism of injury, with acute soft tissue injuries affecting the neck,
shoulders and upper back.

2.     Acute
sleep disruption.

3.    
Post-traumatic headaches.

Her condition has since gradually improved with physiotherapy
and massage therapy, and she was able to persist at work, albeit with residual
stiffness and discomfort.

In my opinion, the following conditions were present at the
time of today’s assessment, and are likely the resultant effects, or
complications of, her original acute injuries sustained in the motor vehicle
accident in question:

1.     Chronic
soft tissue injury with myofascial pain arising from:  bilateral cervical
paraspinals, trapezii and thoracic paraspinals T2-6; and right splenius
capitus, scalene, rhomboid, infra and supraspinatus muscles.

2.     Chronic
intermittent cervicogenic headaches.

3.     Possible
thoracic outlet syndrome (symptomatically resolved) with concomitant carpal
tunnel syndrome.

4.    
Right rotator cuff tendinopathy vs.tear.

[33]        
Dr. Koo explained that “myofascial pain” is a form of chronic
soft-tissue muscle and related tissue pain.  “Cervicogenic” headaches are
headaches that are related to neck injuries, as opposed to a brain or skull
injury.  On his clinical examination he was unable to confirm whether the
plaintiff’s right shoulder problem was a rotator cuff tendinopathy or a tear. 
However this question was subsequently resolved.  An MRI conducted January 17,
2012, showed a partial thickness tear of the supraspinatus tendon.

[34]        
Dr. Koo was aware of the plaintiff’s history of neck injury and
ongoing residual complaints, and her pre-existing “mildly symptomatic” cervical
degenerative disease, but nonetheless concluded that prior to the accident she
was healthy.  In his opinion, her pre-accident medical condition was unlikely
to have spontaneously progressed in the absence of trauma, such as the
accident, but she was at increased risk of injury.

[35]        
In his view, which I accept, the accident was the cause of the injuries of
which she complains.

[36]        
I will refer to Dr. Koo’s prognosis below.

2.              
Janet Hunt – Occupational Therapist

[37]        
Ms. Janet Hunt assessed Mrs. Rogalsky on March 26, 2012 for
purposes of making cost of care recommendations. She was assessed at her home.

[38]        
She found her to be mildly to moderately deconditioned.  She opines that
Mrs. Rogalsky is capable of sedentary to light strength activities.  Her lifting
and carrying abilities were limited.  Her ability to sit or stand for prolonged
periods was somewhat limited.

3.              
Dr. Ken Burns

[39]        
As noted, Dr. Burns is the plaintiff’s general practitioner and has
treated her regularly since the accident for accident related injuries.  The
plaintiff saw Dr. Burns on February 26, 2014, for purposes of a medical
legal report for use at trial.  The plaintiff has chosen not to adduce Dr. Burns’
report into evidence.

III.            
Analysis

A.             
Assessment of the Plaintiff’s Evidence

[40]        
The accident was a minor one, and the nature of the plaintiff’s injuries
are such that they would normally be expected to resolve within days, weeks or
months of the accident.  However the plaintiff complains at trial, more than
four years after the accident, that while there has been some improvement since
the post-accident period, some of her injuries persist and seem to have
plateaued.  She complains of significant, ongoing effects of her injuries.  Proof
of the plaintiff’s continuing injuries and their consequences depends largely
but not exclusively on her own reports.  There is some objective evidence in
the form of, at least, the right shoulder MRI results.  Thus, the circumstances
call for significant caution on the part of the Court in evaluating her
evidence.

[41]        
In overall terms I found the plaintiff to be a reasonably credible
witness. I accept that she genuinely suffered and continues to suffer from the
injuries of which she complains.  I accept her description of her pre accident
physical condition and level of function.  I accept that she continues to
suffer some limitation and restrictions in her work, domestic and leisure
activities.

[42]        
However I have some reservations concerning the reliability of the
plaintiff’s evidence.  My impression of her testimony was that she was somewhat
overly concerned about avoiding saying things that might be seen to be
detrimental to her case for monetary compensation.  She was often very careful
in her testimony, or very hesitant to answer questions.

[43]        
The plaintiff has chosen to present very little in the way of
corroborative evidence.  The only lay witness other than herself was her
husband, an obviously interested person.

[44]        
I am very troubled by her decision to not call evidence from her doctor.
As noted, she confirmed that she saw him on February 26, 2014, for examination
in relation to a medical legal report. His report is not in evidence, nor are
his prior reports.  The plaintiff denied seeing the recent report or being
aware of its contents. I do not accept that part of her evidence.  I cannot
accept that the plaintiff had no input into the decision not to adduce the
report.  At a minimum, she must be aware of the optimistic opinion Dr. Burns
set out in an earlier report dated April 5, 2011, also not adduced in evidence,
the contents of which are referred to in Ms. Hunt’s report, which the
plaintiff acknowledged reading.  In her evidence the plaintiff downplayed the efficacy
of the treatment provided by Dr. Burns and in effect his opinions by
stating that her appointments with him are rushed and he does not seem
appropriately focussed on her concerns.  In my view the plaintiff has simply
chosen to suppress and downplay Dr. Burns’ evidence because it is not
helpful to her case.  This adversely affects her credibility as a witness.

[45]        
Moreover, in the circumstances of this case I consider it appropriate to
draw an inference that Dr. Burns’ evidence would not have been favourable
to her case.

[46]        
Dr. Koo was not asked to provide an updated report based upon a
further more recent examination of the plaintiff.  Thus his report is somewhat
dated. In addition the weight I can give to the report depends upon the weight
I can give to the evidence of the plaintiff herself, in respect of which I have
some reservations, as indicated.

B.             
Other Evidence

[47]        
Mr. Rogalsky fully corroborated his wife’s testimony concerning her
pre-accident health and activities, and the effects of the accident on her
activities, particularly the many activities they formerly enjoyed together.

C.             
Current Condition of the Plaintiff and Prognosis

[48]        
Dr. Koo’s prognosis is generally negative for a complete recovery. 
He states in his report, “In my opinion the persistence of myofascial pain, now
over two years post-accident, is suggestive that some degree of chronicity is
probable and spontaneous cure or resolution is unlikely.”  He recommends consideration
of several treatment options, such as various forms of physiotherapy,
acupuncture, massage, and medications.  He also suggests consideration of
therapeutic soft-tissue injections of various types.  He recommends an exercise
based rehabilitation program, initially under the supervision of a
physiotherapist for a month, then continued independently.  He recommends if
possible a gradual increase to three to five sessions per week of moderately
intensive activities such as bicycling, yoga, swimming, walking, or Tai Chi. 
He suggests a gym membership or access to a community facility for an activity
program.  He suggests avoidance of high impact activities such as running,
skiing or tennis.  He suggests avoidance of activities that cause an increase
in symptoms.

[49]        
With respect to her right shoulder injury, whether tendinopathy or
partial tear, he recommends physiotherapy.

[50]        
Dr. Koo made a minor error in saying that at the time of his
examination her myofascial pain had persisted for over two years, when in fact
he saw her 19 months post-accident.  However given the persistence of her
symptoms since he examined her on December 2, 2011, this error is not of much
significance.

[51]        
Mrs. Rogalsky gained 20 pounds after the accident.  Janet Hunt
noted that she was about 8 lbs. overweight when she saw her in March, 2012.  Mrs. Rogalsky
indicates that she does not like going to the gym. She prefers exercising at
home. She purchased a treadmill in January 2013.  She walks on the treadmill
daily.  This has been very beneficial as she has lost 35 lbs. since acquiring
the treadmill.

[52]        
Other than massage therapy, and use of the treadmill at home, Dr. Koo’s
treatment recommendations have largely not been attempted.  Physiotherapy
treatments ended February 1, 2013.  Massage treatments continued regularly
until late May 2013.

[53]        
I do not have the benefit of any current medical opinions concerning
treatment options.

IV.           
Assessment

A.             
Non-Pecuniary Damages

[54]        
I find that the plaintiff suffered moderate soft tissue injuries to her
neck, upper back and right shoulder in the motor vehicle accident.  She
sustained a partial thickness, right shoulder rotator cuff tear.  The accident
caused her to suffer from symptoms of thoracic outlet syndrome and carpal
tunnel syndrome, which symptoms are now resolved.  She has persistent
intermittent headaches associated with her neck, back and shoulder pain.

[55]        
Although the plaintiff complained at trial of worsened low back pain
resulting from the accident, I am not persuaded that she suffered a significant
injury to her low back.  Dr. Koo made no such diagnosis.  This problem
seems to have been pre-existing.  On her examination for discovery in June 2012,
she testified that her low back complaint had resolved a year previously. 
Clearly it was not a major complaint in any event.  Her low back pain
immediately after the accident seems to have been a somewhat transient problem.

[56]        
I accept that pre-accident the plaintiff had some minor limitations of
function, caused by her pre-existing spinal degenerative condition.  I accept
that but for the accident she would likely have continued to remain generally
healthy and functional.  I accept that the accident injuries have caused
ongoing pain and limitation of function with respect to work, domestic and
leisure activities.  I accept that her pain and limitation of function
persists, and is likely to continue to persist indefinitely.  However in my
view the current severity of her injuries and their effects are likely
overstated to some degree.

[57]        
Moreover, there is also a possibility that her condition will improve.  As
noted, her home exercise program using the treadmill has been very beneficial. 
Treatment modalities suggested by Dr. Koo remain largely untried.

[58]        
I adopt my comments regarding the principles of assessment of non-pecuniary
loss set out in Gillam v. Wiebe, 2013 BCSC 565, at paras. 68-71:

[68] The purpose of an award of non-pecuniary damages is to
compensate the injured person for his or her pain and suffering, loss amenities
of life, and loss of expectation of life. However, the law recognizes that
money cannot provide true restitution, because what has been lost is
irreplaceable, and in any event there is no market in which the value of the
loss can be objectively determined. The award is intended to provide solace,
not in the sense of sympathy, but in the sense that money can be used to make
the injured person’s life more endurable. Money is awarded because it will
serve a useful function in making up for what has been lost in the only way
possible; accepting that what has been lost is incapable of being replaced in
any direct way. As was explained in Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33, at para. 171:

For those losses which cannot be
made good by money, damages are to be awarded on a functional basis to the end
of providing substitute pleasures for those which have been lost. This is the
philosophical justification for awarding damages for non-pecuniary loss.

[69] Of necessity, the award must be arbitrary or
conventional. The award must be fair and reasonable, fairness being gauged by
earlier decisions: Andrews v. Grand and Toy, [1978] 2 S.C.R. 229, at paras. 87
– 89.

[70] The general principles relating to assessment of
non-pecuniary loss are set out in the decision of the B.C. Court of Appeal in Stapley
v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45
and 46:

[45] …I think it is instructive
to reiterate the underlying purpose of non-pecuniary damages. Much, of course,
has been said about this topic. However, given the not-infrequent inclination
by lawyers and judges to compare only injuries, the following passage from Lindal
v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case" (Thornton
at p. 284 of S.C.R.).

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

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

[71] The overriding consideration
is “appreciation of the individual’s loss”. As a result, the award will vary in
each case to “meet the specific circumstances of the individual case”: Stapley,
at para. 45.

[59]        
In overall terms, the plaintiff’s injuries and pain have somewhat
restricted her work, domestic, and leisure or recreational activities and
diminished her enjoyment of life.  She is now significantly less physically active
than she was.  She is not as happy and sociable.  Prior to the accident she
enjoyed many activities together with her husband, such as motorcycle riding
(she as passenger), boating, sports, walks, home repairs, maintenance and
refurbishing, church activities, and travel.  She also enjoyed cooking and
entertaining.  For the most part these sorts of activities have continued, but
to a reduced degree and they are not as enjoyable as they were previously.  Her
relationship with her husband, while still very strong, has been somewhat
negatively affected.  Their plans for activities for their upcoming joint
retirement may be affected.

[60]        
I accept that her work as a dental assistant causes exacerbation of her
injuries, as does her home based work to some extent.

[61]        
She was and remains a fastidious housekeeper.  However she is less able
to do heavy housework and yard work, and her husband has had to take over more
of the work.

[62]        
Dr. Koo states that she is at increased risk for re-injury and
protracted recovery from future soft tissue injuries.

[63]        
To her credit, for the most part she has carried on with her work and
other activities, with adaptations.  Her husband described her as a non-complainer,
and it was argued that I should conclude that she was stoical by nature.  However
I do not consider her presentation at trial consistent with that description.

[64]        
In assessing her overall injuries I must take into account that she was
not completely symptom free prior to the accident.

[65]        
The plaintiff contends that an appropriate award for non-pecuniary
damages would be in the range of $60,000 to $80,000, while the defendant argues
that at best for the plaintiff the appropriate range of non-pecuniary damages
would be $15,000 to $25,000.

[66]        
In support of its position, the plaintiff cites: Miller v. Lawlor,
2012 BCSC 387 ($65,000); Gregory v. Insurance Corportion of British
Columbia, 2010 BCSC 352 ($60,000); Courtney v. Hutchinson, 2012 BCSC
188 ($70,000); and Smith v. Fremlin, 2013 BCSC 800 ($90,000). The
defendant cites: De Abreu v. Huang, 2013 BCSC 398 ($25,000); Lessey
v. Canuel, 2013 BCSC 455 ($16,500); Jensen v. Felker, 2008 BCSC 541 ($18,000);
and Boutin v. MacPherson, 2012 BCSC 1814 ($25,000).

[67]        
In the circumstances of this case, having regard to the authorities and
the principles noted above, an award of $35,000 is appropriate.

B.             
Loss of Homemaking Capacity

[68]        
The plaintiff claims damages for loss of homemaking capacity, in the
amount of $25,000.

[69]        
The legal principles relating to a claim for lost homemaking capacity
were conveniently summarized by Dardi J. in X. v. Y., 2011 BCSC 944, at paras. 246-248,
as follows:

[246]    In Dykeman v. Porohowski, 2010 BCCA 36,
Newbury J.A. at para. 28 summarized the governing principles with respect
to awarding damages for the loss or impairment of housekeeping capacity. She
affirmed that damages for the loss of housekeeping capacity may be awarded even
though the plaintiff has not incurred any expense because housekeeping services
were gratuitously replaced by a family member. Recovery may be allowed for both
the future loss of the ability to perform household tasks as well as for the
loss of such abilities prior to trial. The amount of compensation awarded
must be commensurate with the plaintiff’s loss: Dykeman at para. 29.

[247]    In McTavish v. MacGillivray, 2000 BCCA 164,
the Court of Appeal endorsed the replacement cost approach to the valuation of
lost housekeeping capacity. Madam Justice Huddart’s comments at paras. 67-68
are instructive:

[67] … The loss of the ability to
perform household tasks requires compensation by an award measured by the value
of replacement services where evidence of that value is available.

[68] In my view, when housekeeping
capacity is lost, it is to be remunerated. When family members by their
gratuitous labour replace costs that would otherwise be incurred or themselves
incur costs, their work can be valued by a replacement cost or opportunity cost
approach as the case may be. That value provides a measure of the plaintiff’s
loss.

[248]    In assessing the damages on the replacement cost
approach, the court must carefully scrutinize the gratuitous services done by
the family member. A relatively minor adjustment of duties within a family will
not justify a discrete assessment of damages: Campbell v. Banman, 2009
BCCA 484 at para. 19. In Dykeman at para. 29, Madam Justice
Newbury cautioned that:

Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the
services – were they simply part of the usual ‘give and take’ between family
members, or did they go ‘above and beyond’ that level? – and with respect to
causation – were the services necessitated by the plaintiff’s injuries or would
they have been provided in any event?

[Emphasis added.]

[70]        
Another useful summary of the principles applicable to assessment of
damages for loss of homemaking capacity was provided by Sigurdson J., in Ladret
v. Stephens, 2013 BCSC 1999, at paras. 100-110.  There,
Sigurdson J. noted that such claims are invariably difficult to assess: Ladret
at para. 103.

[71]        
As noted, prior to the accident the plaintiff was an enthusiastic and
fastidious housekeeper.  She was primarily responsible for the inside domestic
chores such as laundry, cooking, linens, seasonal cleanings, bathrooms and
floors.  Her husband did the vacuuming once per week, and was primarily
responsible for the outdoor work such as lawn mowing, washing cars, pruning,
power washing, and cleaning gutters, although she liked to help with the
outdoor work including lawn mowing occasionally.  She also helped with house
maintenance such as painting and refurbishing or renovating portions of the
house.  When the accident happened she and her husband were planning to
renovate the master bedroom and bathroom in the fall of 2010.  Mr. Rogalsky
did the work without much help from her.  She no longer assists with the
outside work.  She continues to do most of the indoor housekeeping but not to
her former high standards.  Cooking, baking and entertaining have decreased.

[72]        
The plaintiff contends that a reasonable award is $25,000, based upon
the replacement cost of regular and seasonal housecleaning of $1,040 per annum
and outdoor yard work of $1,210, to age 75, which when discounted total
$32,156.78.  These figures derive from Ms. Hunt’s report.  On this basis,
an award of $25,000 is alleged to be conservative.

[73]        
No such expenses have yet been incurred, nor in my view is there any
likelihood that Mrs. Rogalsky and Mr. Rogalsky will incur expenses to
replace Mrs. Rogalsky’s lost homemaking capacity, especially given their
impending retirement.

[74]        
There is no evidence that Mr. Rogalsky suffers from any health
concerns.  He appeared fit to me.  What has occurred is that to some extent the
work is not being done, and to some extent Mr. Rogalsky has compensated by
doing more of it.  However the extra work that Mr. Rogalsky does is more
than a “minor adjustment” in the relative duties of the Rogalskys.

[75]        
Dr. Koo notes that Mrs. Rogalsky reports some restrictions on
her ability to do heavy lifting or overhead reaching with her right arm, with
limitations of stamina, and consequential pain.  He makes no specific
recommendations regarding domestic activities or restrictions.  Ms. Hunt’s
report provides evidentiary support for some degree of diminished homemaking
capacity.

[76]        
I am satisfied that on the evidence in this case an award is justified. 
The award should be commensurate with the value of the loss: Dykeman. 
In the circumstances of this case, the award should be modest, for several
reasons.  The plaintiff’s limitations are partial only.  In the main she is
managing to carry on much as before. The prognosis is not clear (therefore
there is a contingency, that her restrictions relating to the accident may
diminish).  The plaintiff’s capacity would naturally have diminished gradually
in any event as she ages, particularly having regard to her pre-existing spinal
condition.  Her circumstances include the fact that her husband can readily
compensate, and will soon retire.  No one is dependent on her services.

[77]        
I assess the value of the loss of homemaking capacity at $15,000.

C.             
Cost of Future Care

[78]        
The plaintiff claims for $11,485 as the cost of future care, based upon
the report of Ms. Hunt, as follows:

[79]        
There must be a medical justification for claims for cost of future
care, and the claims must be reasonable: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33, at 84.

[80]        
I am not satisfied that any of the above noted claims are medically
justified and reasonable.

[81]        
As noted, in his report dated December 2, 2011, Dr. Koo recommended
that the plaintiff try various treatment options such as physiotherapy,
acupuncture, massage, or chiropractic.  He suggested that a “therapeutic trial
of three or four sessions is generally indicated to see what is most efficacious
and worth continuing with.”  He also suggested that “ongoing use” of such
therapies would likely be beneficial.  Ms. Hunt’s report followed that
report on April 12, 2012.  Although his report is unspecific in this respect,
as I interpret Dr. Koo’s opinion he does not suggest that such treatment
be continued regularly and indefinitely, and in any event his advice is no longer
current.  Following that report the plaintiff had a few chiropractic treatments
and also some massage treatments, but has discontinued receiving such
treatments.  There is no current medical opinion evidence supporting further
such needs.

[82]        
The plaintiff has some level of insurance coverage for medical
treatments such as massage, physiotherapy, through her husband’s employment. 
She utilized this benefit to pay for the treatments she was receiving prior to
the accident.  How this benefit could affect her claim for such expenses in
future was not dealt with in evidence or referred to in the submissions.

[83]        
The plaintiff has not pursued professional assistance with exercise
rehabilitation.  She prefers to exercise at home, and on her own.   The work
site ergonomic or occupational therapist consultation expense is not reasonable
at this stage, given that the plaintiff works two days per week, has coped for
more than four years so far, and will likely continue to work as a dental
assistant for only one or two more years.  In my view in the circumstances of
this case if the plaintiff was of the view that the expense of the personal
trainer or the ergonomic aids was reasonable she would have incurred them
herself by now, as she has with other items such as an ergonomic chair, special
telephone, and the treadmill.

D.             
Special Damages

[84]        
The plaintiff claims special damages in the amount of $4,767.65.  The
defendant provided no useful submissions in relation to this claim, and merely
states that the expenses are “not proven.”  The expenses claimed include the
costs of physiotherapy, chiropractic treatment, massage therapy, acupuncture,
some prescriptions, and mileage for medical treatments.  These are all
reasonable expenses, supported by the evidence.  The expenses relating to an
ergonomic chair and a new telephone for her home office (both recommended by Ms. Hunt)
and the treadmill and are also supported by the evidence and are reasonable.  The
only claimed expenses I reject are mileage to Save On Foods ($15.00) and costs
to purchase turmeric, which I am not satisfied is medically necessary or
reasonable. Thus the proven special damages are $4,668.84.

V.             
Summary

[85]        
The plaintiff is awarded the following amounts:

VI.           
Costs

[86]        
Subject to matters of which I am unaware, the plaintiff is entitled to
costs.  The parties are at liberty to apply in respect of costs provided application
is made within 60 days.

“Verhoeven J.”