IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140725

Docket: 46774

Registry:
Kamloops

Between:

Narinder
Chouhan also known as Nina Chouhan

Plaintiff

And

Cindy
Carol Allemeersch

Defendant

Before:
The Honourable Mr. Justice Dley

Reasons for Judgment

I.        Introduction

[1]            
Ms. Chouhan was the victim of a sideswipe motor vehicle collision for which
liability has been admitted.

[2]            
Ms. Chouhan suffered from depression and fibromyalgia before the
collision, but says that the collision exacerbated those conditions. Ms.
Chouhan has been unable to work since and claims for damages, including loss of
opportunity and costs of future care.

[3]            
The issue in this proceeding is whether and to what extent the collision
caused or contributed to Ms. Chouhan’s ongoing symptoms.

[4]            
For the reasons that follow, I award Ms. Chouhan the following damages:

II.       Background Facts

Pre-Collision

[5]            
Ms. Chouhan is 34 years old, married, and has two children. She was born
and raised in Kamloops, BC.

[6]            
Ms. Chouhan obtained a diploma in computer systems through the British
Columbia Institute of Technology (“BCIT”) in 2001. After that she started
working for an internet provider, Urban Communications Inc., in the Lower Mainland
and was eventually promoted to systems administrator, a position which required
her to be on call 24/7. Other than for two weeks in the summer of 2007 when she
had injured her back, Ms. Chouhan was able to fulfill all of her employment duties
without physical or mental limitations.

[7]            
Ms. Chouhan suffered from depression during her first winter at BCIT.
She was treated by a physician and a counsellor, and took Paxal for one year. By
December 2001, the depression-related symptoms had resolved and she
discontinued taking the medication.

[8]            
In August 2001, she married Mr. Chouhan. They had planned to live in the
Lower Mainland. However, that plan changed because of Mr. Chouhan’s father’s terminal
illness.

[9]            
Ms. Chouhan moved back to Kamloops in December 2007 and her husband
followed a month later. Ms. Chouhan was pregnant at that time, and planned to
take a one-year maternity leave before returning to her previous employment as
a computer systems administrator.

[10]        
Ms. Chouhan gave birth to her first child in February 2008. She suffered
from postpartum depression and as a result she received counselling from Ms.
Nelson at the Mental Health Clinic. She also spoke with her family physician,
Dr. Wiltshire, about her symptoms, which included being irritable, tearful,
overwhelmed, and sad.

[11]        
 In May 2008, Ms. Chouhan’s father died unexpectedly. Ms. Chouhan had
been very close to her father. She was in shock from the sudden death and very
sad.

[12]        
In November 2008, her father-in-law passed away. Ms. Chouhan and her
husband decided to stay in Kamloops as a result of both their mothers being
widowed.

[13]        
Upon deciding to stay, Ms. Chouhan initially looked for work similar to her
previous employment, but was unable to find that in Kamloops. As a result, she
decided that opening a daycare would be a viable option.

[14]        
Ms. Chouhan enrolled in and completed a course offered by the YMCA which
would qualify her to open a daycare in her home. She received her certification
in April 2010. She anticipated being able to accommodate six children and
intended to open her daycare in September 2010.

[15]        
In March 2010, Ms. Chouhan had designed a Punjabi education puzzle,
which was intended to assist in teaching youngsters the Punjabi alphabet. She
and her husband had the concept copyrighted, arranged for its manufacture, and
commenced its distribution in September 2011.

[16]        
In April 2010, Ms. Chouhan was still depressed and on medication. Ms.
Chouhan spoke with Ms. Nelson about possibly applying for disability benefits, but
never made such an application.

The Collision

[17]        
On April 22, 2010, Ms. Chouhan was driving at about 90 km/h on the
highway approaching the Peterson Creek Bridge in Kamloops. Her two-year-old son
was in his car seat in the middle of the back seat. Ms. Chouhan had moved his car
seat from the left side of the back seat to the middle that morning.

[18]        
A truck driven by the defendant and towing a U-Haul trailer was passing
Ms. Chouhan when the U-Haul trailer struck the side of Ms. Chouhan’s car. This
caused the U-Haul trailer to jump to the left with the right tires going up in
the air about a foot. The U-Haul trailer then bounced back and collided with
Ms. Chouhan’s car a second time.

[19]        
Ms. Chouhan could not recall what happened to her body within the
vehicle, but recalls her arms being rigidly attached to the steering wheel as
she brought her own vehicle under control.

Post-Collision

[20]        
Ms. Chouhan had suffered from symptoms of fibromyalgia prior to the
collision, but had been able to look after her son and do all of the cooking
and cleaning. After the collision, Ms. Chouhan has required her mother and
husband’s assistance to care for the house and children.

[21]        
Mr. Chouhan quit his job with British Columbia Lottery Corporation so
that he could spend more time at home caring for his children and doing many of
the tasks that Ms. Chouhan would have done before the collision. Mr. Chouhan
started a home-based accounting and consulting practice, which he continues to
do.

[22]        
Ms. Chouhan has been diagnosed with Post Traumatic Stress Disorder
(“PTSD”), and an exacerbation of her fibromyalgia symptoms. She has been
disabled since the collision.

III.       The Issue

[23]        
There is no question that Ms. Chouhan sustained injuries from the
collision and suffered damages as a result. However, the defence argues that (a)
Ms. Chouhan’s ongoing symptoms are those that pre-dated the collision and (b)
there are unrelated intervening events that must be considered in assessing her
damages.

[24]        
It is not disputed that Ms. Chouhan suffered from both depression and some
soft tissue pain prior to the collision.  It is also not disputed that she did
not suffer from PTSD prior to the collision.

[25]        
The issue I must determine in assessing Ms. Chouhan’s damages is whether
and to what extent the collision caused or contributed to Ms. Chouhan’s ongoing
symptoms.

IV.      Evidence

A.       Ms. Chouhan’s Credibility

[26]        
Most of Ms. Chouhan’s complaints are subjective. Her claim is thus
minimised if her testimony is neither reliable nor credible. Even though I must
examine all of the evidence, in this case Ms. Chouhan’s testimony is the
cornerstone to her claim.

[27]        
Ms. Chouhan was a very impressive witness. She was frank and consistent.
She was not dramatic. She did not exaggerate. I adopt the words of Dr.
Milanese, who examined Ms. Chouhan for the defence: Ms. Chouhan was “genuine
and sincere”.

[28]        
She did not suggest, either during her testimony or in her histories to
various medical practitioners or care givers, that the collision was the sole
cause of her symptoms. Ms. Chouhan readily acknowledged that she had suffered
from physical and mental distress before the collision. Ms. Chouhan agreed that
there were many stressors in her life that factored into her depression and
which were not related directly to the collision. Ms. Chouhan acknowledged to
Dr. Wade, her exposure to “family conflict, marital conflict, grief and loss,
relocation and complications of pregnancy”.

[29]        
In my view, considering other evidence in relation to her testimony further
buttresses Ms. Chouhan’s credibility.

(i)       Evidence of the Collision

[30]        
Ms. Chouhan described the collision as a traumatic experience. She was
emotional when recalling the incident.

[31]        
However, her description paled in comparison to Ms. Knies’ and Ms.
Pepper’s descriptions of the collision as they viewed it from following Ms.
Chouhan. Those witnesses saw two impacts whereas Ms. Chouhan only recalled one.
Ms. Pepper expected that the consequences of the collisions were going to be
horrific; so much so that she had dialed 9-1-1 even before the second impact
occurred. Ms. Knies saw that Ms. Chouhan was very distraught, shaken, and
concerned about her child.

[32]        
Ms. Chouhan did not describe the collision and her reaction to it with
the same clarity as the other witnesses. However, that does not mean that the
collision was less than that described by Ms. Knies or Ms. Pepper. I accept the
version given by those witnesses and conclude that Ms. Chouhan’s lesser
description supports her credibility.

(ii)      Ms. Chouhan’s approach to life

[33]        
Ms. Chouhan has not let life’s negative experiences hold her back.

[34]        
Ms. Chouhan was determined to succeed in her chosen career prior to the
collision. She did that by rising to the level of a systems administrator at
Urban Communications. Even though she had symptoms of fibromyalgia, Ms. Chouhan
was not hampered from carrying out all of her employment duties.

[35]        
Mr. McLeod was Ms. Chouhan’s superior at Urban Communications. He spoke
of her proficiency in completing assignments and of her “detailed problem
solving skills”. Mr. McLeod had expected Ms. Chouhan to return to Urban
Communications after her maternity leave.

[36]        
Ms. Chouhan was not deterred in her efforts to earn an income after it
became apparent that she was not going to secure a job in Kamloops that was
comparable to her position at Urban Communications. Rather, Ms. Chouhan
embarked on a plan to open a daycare and also developed an educational puzzle
to sell.

[37]        
Ms. Chouhan intended to open her daycare in September 2010 even though
she had been suffering the effects of depression and physical pain. She had
considered applying for a disability pension, but decided not to. I infer that
she decided against such an application because she felt she was capable of
running the daycare. That decision was made before the collision.

[38]        
Ms. Chouhan’s determination to continue with a career and her steps at
recovery were succinctly stated by her treating psychiatrist, Dr. MacBeath, who
said that she had rarely seen any patient show Ms. Chouhan’s degree of
commitment to recovery. Dr. MacBeath was very emphatic and entirely convincing
in emphasizing that point.

(iii)     Ms. Mann’s evidence

[39]        
Ms. Chouhan’s mother, Ms. Mann, has been living with her daughter since
the end of 2010. Ms. Mann, along with Mr. Chouhan, have done all of the
household duties, including caring for the children.

[40]        
Ms. Mann was not aware that her daughter suffered from depression prior
to the collision or that she had been taking counselling. By contrast, Ms. Mann
was quite aware of the depression issues that arose after the collision.

[41]        
Ms. Mann left for Calgary on the day of the collision and did not return
until five weeks later. Upon her return, she was shocked at the state her
daughter was in. Ms. Chouhan had difficulty getting out of bed; she could not
take care of her son or do basic household chores.

[42]        
Ms. Mann described her daughter as friendly and outgoing prior to the
collision. Ms. Chouhan would be up at 6 – 7:00 a.m. and go to bed at 10 p.m. Now,
she says Ms. Chouhan is unhappy, irritable, and may not get out of bed until
the evening.

[43]        
Like her daughter, Ms. Mann was a very impressive witness. She was
responsive and thoughtful. Her evidence was consistent, considered and
credible.

[44]        
Most telling about Ms. Mann’s testimony was that she was unaware that
Ms. Chouhan suffered from depression prior to the collision. The inference I
draw from this is that although Ms. Chouhan was suffering from depression prior
to the collision, it did not limit her activities at home and with her son. Nor
did the depression affect her to the extent that her demeanour changed from
being friendly and outgoing.

B.       The Medical Evidence

(i)       The family physician

[45]        
Ms. Chouhan’s family doctor was Dr. Wiltshire, who had been treating her
since April 2009. He examined Ms. Chouhan the day after the collision. Dr.
Wiltshire noted that Ms. Chouhan had pain in the left side of the neck, both
shoulders, right arm, mid and lower back, right thigh, and right knee. Dr.
Wiltshire regarded these injuries as mild to moderate and expected that they
would resolve with physiotherapy.

[46]        
In the weeks following, Dr. Wiltshire noted the onset of other pain
areas and consequently diagnosed Ms. Chouhan with fibromyalgia.

[47]        
Dr. Wiltshire was aware that Ms. Chouhan had suffered from depression,
but noted an increase in the symptoms after the collision. He referred Ms.
Chouhan to a psychiatrist, Dr. MacBeath.

[48]        
Dr. Wiltshire was not certain that the fibromyalgia pre-dated the
collision. He described the ongoing symptoms as moderate to severe and said that
Ms. Chouhan has been permanently disabled as result of the depression and
fibromyalgia.

[49]        
It is apparent from other medical practitioners who have examined Ms.
Chouhan that she did suffer from fibromyalgia before the collision. It is also
apparent from the other medical practitioners that Ms. Chouhan is not going to
be permanently disabled. However, Dr. Wiltshire’s observations are relevant to assessing
the extent of Ms. Chouhan’s symptoms of depression and fibromyalgia prior to
the collision. It is apparent from Dr. Wiltshire’s reports that those
conditions were not previously disabling.

(ii)      The physical medicine and rehabilitation specialist

[50]        
Dr. Raghavan is a specialist in physical medicine and rehabilitation. He
noted that Ms. Chouhan had not received the appropriate education in dealing
with the symptoms from which she suffers. Dr. Raghavan opined that although
there may not be a complete cure, an appropriate treatment program can result
in significant improvement.

(iii)     The rheumatologists

[51]        
Drs. Hudson and Wade are rheumatologists. They both agree that Ms.
Chouhan had fibromyalgia prior to the collision.

[52]        
Dr. Hudson says that the symptoms will “wax and wane over time with
little chance of full resolution”. She also says that a long term exercise program
would be of assistance, which is in keeping with Dr. Raghavan’s evidence.

[53]        
Dr. Wade said that it was “likely that the accident was one of the major
contributors” to Ms. Chouhan’s symptoms, but that there were also other
non-accident stressors involved. He opined that Ms. Chouhan “may well have had
very mild soft tissue rheumatism or fibromyalgia prior to the accident…”, but
after the collision the fibromyalgia was more prominent.

[54]        
Dr. Wade reviewed the connection between the collision and other non-collision
stressors:

…There has been accident and
non- accident factors that have perpetuated her ongoing symptoms of
fibromyalgia through to the present time. A lot of these factors are
non-accident related although it is quite clear that the soft tissue injuries
from the accident of April 22, 2010 were at least at play in exacerbating the
symptoms in the weeks following the accident.

[55]        
Dr. Wade said that normalizing her sleep would be important for
recovery, but that her chance of doing so was affected by her youngsters waking
up at night. Dr. Wade recognized that Ms. Chouhan would be compromised in
receiving the benefits of a rehabilitation program as long as she was not
sleeping well.

[56]        
Dr. Wade concluded that with appropriate rehabilitation and the resolution
of family stressors Ms. Chouhan would be able to reintegrate into the workforce
from a physical standpoint. Dr. Wade also concluded that if Ms. Chouhan’s
mental health improved there would be no physical limitation to her operating a
family daycare.

(iv)     The psychiatrists

[57]        
Dr. MacBeath has been treating Ms. Chouhan since July 2010. Dr. MacBeath
assessed Ms. Chouhan as suffering from PTSD and considered that to be her
primary psychiatric illness. Dr. MacBeath was aware of Ms. Chouhan’s history of
depression and the associated counselling she had received.

[58]        
Dr. MacBeath referred Ms. Chouhan to the Canadian Mental Health
Association’s “Bounce Back” cognitive behavioral therapy program. Ms. Chouhan
understood the principles of the therapy and has been applying them in her
everyday life.

[59]        
Dr. MacBeath’s most recent report of March 25, 2014, states that Ms.
Chouhan’s symptoms of PTSD have improved over the past year. However,
hyperarousal symptoms continue to plague Ms. Chouhan, with problems relating to
concentration, sleep, and anxiety. Dr. MacBeath was not able to distinguish how
much those symptoms were due to physical pain and fibromyalgia.

[60]        
Ms. Chouhan’s depression symptoms continued to be a significant issue
until early March 2014. Ms. Chouhan found that taking medication (Cymbalta) was
beneficial but now questioned whether she still needed the medication as she no
longer felt depressed.

[61]        
Dr. MacBeath concluded that Ms. Chouhan’s mental health issues had
improved over the past year, in part due to therapy, medication and her own determination.

[62]        
Dr. MacBeath was of the view that because of her physical limitations
involving chronic pain, Ms. Chouhan would require retraining, but only for part
time employment because of stamina limitations.

[63]        
Dr. MacBeath testified most eloquently that Ms. Chouhan was doggedly
determined to regain her health. Dr. MacBeath said that she rarely saw a
patient with the degree of commitment shown by Ms. Chouhan in her efforts at
recovery.

[64]        
Dr. Milanese examined Ms. Chouhan on behalf of the defendant in February
2013. He concluded that the collision had escalated Ms. Chouhan’s depression
symptoms from a mild to a moderately severe level. On the date of his
examination, Ms. Chouhan’s depressive symptoms were at a moderate level.

[65]        
Dr. Milanese confirmed that Ms. Chouhan suffered PTSD as a second
psychiatric injury from the collision.

[66]        
Dr. Milanese did not include fibromyalgia as a factor in his opinion. He
agreed, however, that fibromyalgia could aggravate depressive symptoms and that
depressive symptoms could elevate physical pain; “a vicious cycle”.

[67]        
Dr. Milanese concluded that Ms. Chouhan was totally disabled from
performing the duties of any job as a result of her depressive symptomology.
Ms. Chouhan’s limited concentration, focus, and short-term memory interfered
with her capacity to competently and adequately complete cognitive tasks.

[68]        
Dr. Milanese was optimistic that Ms. Chouhan had a very good prognosis
to become fully employable once her major depressive disorder resolved, which he
expected to happen over the six to 12 months following his examination. Thus, his
expectation was that she would have recovered by February 2014.  It is apparent
that the optimism was overstated.

[69]        
Dr. Milanese recommended that Ms. Chouhan continue with her psychiatric
treatment and counselling. He also recommended that Ms. Chouhan concentrate
more on physical activity, both for her physical health and to assist her in
recovering from the depressive disorder.

V.       Causation

[70]        
Ms. Chouhan was a vulnerable person at the time of the collision. She
had suffered from mild symptoms of fibromyalgia and from depression, for which
she was receiving treatment. She had previously suffered from depression in
2000, but those symptoms resolved with the aid of medication.

[71]        
There were numerous other stresses in Ms. Chouhan’s life, but she was
coping with them. She was receiving counselling, but was able to function.

[72]        
Ms. Chouhan was confident enough of her recovery and ability to cope that
she planned to open a daycare in September 2010. I find her expectation that
she could operate the daycare to be reasonable. She was able to complete her
training and had prepared a budget to proceed.

[73]        
The collision changed everything; it was the tipping point.

[74]        
Causation is proved if Ms. Chouhan shows on a balance of probabilities
that the defendant caused or contributed to her injuries: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 13.

[75]        
The defendant need not be the sole cause of Ms. Chouhan’s injuries. As
long as the defendant is part of the cause of Ms. Chouhan’s injuries, the defendant
is liable for all injuries caused or contributed to: Athey at para. 17.

[76]        
The medical evidence is clear that the collision is a factor that has
caused or contributed to Ms. Chouhan’s compensable injuries.  I therefore conclude
that the defendant’s negligence caused the injuries which have disabled Ms.
Chouhan.

VI.      Assessment of Damages

[77]        
In the assessment of damages, unrelated intervening events and
pre-existing conditions are treated in the same way. If an unrelated
intervening event would have affected a plaintiff’s original position adversely
in any event, the net loss attributable to the tort will not be as great and
the damages attributable to the defendant will be reduced proportionately. This
principle of assessment applies equally to non-pecuniary damages and to damages
for loss or impairment of earning capacity.  I take this statement of the law
from T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at
paras. 36-37.

[78]        
A pre-existing condition with a measurable risk that would have resulted
in a loss in any event, must be taken into account in assessing the damages
caused by a defendant: Moore v. Kyba, 2012 BCCA 361 at para. 43.

A.       Non-Pecuniary Damages

[79]        
The following factors are to be considered in assessing non-pecuniary
damages:

a)    Ms. Chouhan’s
age;

b)    nature of the
injury;

c)     severity
and duration of pain;

d)    disability;

e)    emotional
suffering;

f)     
loss or impairment of life;

g)    impairment of
family, marital and social relationships;

h)    impairment of
physical and mental abilities; and

i)      
loss of lifestyle.

Stapley v. Hejslet, 2006 BCCA 34 at para. 46.

[80]        
Before the collision, and in spite of depressive and mild fibromyalgia
symptoms, Ms. Chouhan was active and able to care for her household and child.
She had taken the necessary steps to open a daycare. She was motivated and
determined to keep up the household and to generate an income.

[81]        
The consequences of the collision have been devastating. Ms. Chouhan has
had difficulty caring for her children and has required constant assistance
from her husband and family. Ms. Chouhan has been unable to keep up the
household. Ms. Chouhan has difficulty getting out of bed and often sleeps until
the early afternoon. Ms. Chouhan has become irritable and unhappy. Her relationship
with her husband has become strained. Her social activities have been
significantly curtailed.

[82]        
It is now over four years since the collision changed Ms. Chouhan’s
life. She has made some progress. The PTSD has improved, but she still has symptoms.
Counselling and medication have provided Ms. Chouhan with some relief.

[83]        
Ms. Chouhan’s recovery has been hampered by fatigue and sleep
deprivation. However, the sleep interruption should lessen and eventually cease
as her children grow older.

[84]        
The medical advice is consistent that Ms. Chouhan needs to improve her
physical conditioning and with that her overall symptoms will likely improve.
However, Ms. Chouhan has been engaged in physical conditioning, but has been
restrained due to the pain involved. Nonetheless, there is optimism that in
time her condition will improve.

[85]        
The defence says that the damages for pain and suffering should be
assessed at $65,000; Ms. Chouhan submits that the appropriate sum is $130,000.

[86]        
The authorities provided by counsel are helpful in setting out the range
of damages awarded for similar injuries. However, each person is to be assessed
in his or her unique circumstances.

[87]        
Having regard for Ms. Chouhan’s pre-collision symptoms and considering
the factors set out in Stapley, including Ms. Chouhan’s loss of
homemaking capacity, I award $90,000 for non-pecuniary damages.

B.       Past Income Loss

[88]        
The past loss of income claim is to be analyzed as a loss of earning
capacity. Ms. Chouhan’s after collision, but before trial losses involve many
of the same contingencies applicable in the assessment of her future losses: Midgley
v. Nguyen, 2013 BCSC 693 at paras. 236-240.

[89]        
Ms. Chouhan must prove that there is a real and substantial possibility
that she has suffered a loss of earning capacity: Perren v. Lalari, 2010
BCCA 140 at para. 32.

[90]        
Madam Justice Rowles succinctly stated the test for assessing pre-trial earnings
loss in Smith v. Knudsen, 2004 BCCA 613 at para 29:

[29]      … What would have
happened in the past but for the injury is no more "knowable" than
what will happen in the future and therefore it is appropriate to assess the
likelihood of hypothetical and future events rather than applying the balance
of probabilities test that is applied with respect to past actual events.

[91]        
Ms. Chouhan had decided to operate a daycare prior to the collision. She
had taken the necessary training, received the required certification, and had
a home that was suitable for such an enterprise. Ms. Chouhan was physically and
mentally capable of operating a daycare. I conclude that running a daycare was
a suitable and realistic source of earning income.

[92]        
Ms. Chouhan had prepared a budget which outlined her expected return
from operating a daycare. I accept the anticipated earnings in this budget as
reasonable. As such, I can assess Ms. Chouhan’s past and future loss of earning
capacity using an earnings approach.

[93]        
Ms. Chouhan anticipated the attendance of six children at a charge of
$42 per day for each child. She anticipated a gross annual income of $60,000
(rounded off) with estimated expenses of $18,300 per year.

[94]        
Of course, contingencies need to be applied to ensure that the award is
fair. First, although Ms. Chouhan’s research indicated that there was a
shortage of daycares in her area, there is no assurance that she would have had
a full complement of children. In addition, there must be an allowance made to
take into account Ms. Chouhan’s pre-existing condition, particularly her
postpartum depression after the birth of her first son. These factors would
have likely reduced Ms. Chouhan’s ability to operate the daycare at full
capacity. There must also be a further adjustment to account for Ms. Chouhan’s
second child who would have reduced the eligible spaces for fee-paying children
(there was a limit of seven children in the house overall).

[95]        
Mr. Nordin, a vocational consultant, identified Ms. Chouhan’s pre-existing
conditions as factors to be considered as negative contingencies. His concerns
are more than just speculation and accordingly must be given weight in determining
the award.

[96]        
Calculations have been provided which assist with the assessment of
damages for lost earning capacity. Ms. Clark has provided actuarial
calculations which make the following assumptions:

In her daycare, Ms. Chouhan would
have had six paying full-time children from September 1, 2010 to the end of
August 2011. She would have then taken two months off following the birth of
her second son. From November 1, 2011 to August 31, 2013, Ms. Chouhan would
have had five paying full-time children in her daycare. From September 1, 2013
onward (when her oldest son starts kindergarten), Ms. Chouhan would have had
six paying full-time children, for the foreseeable future

[97]        
Based on those assumptions, Ms. Clarke concluded that the daycare could
have earned $39,960 net per year for six paying full-time children and $30,300
net per year for five paying full-time children. Therefore, the full value of
the past loss of earning opportunity through the daycare is $127,800.

[98]        
That does not take into account any contingencies. Based on the cautions
expressed by Mr. Nordin, I conclude that Ms. Chouhan would not have earned the
full value and there must be a reduction.

[99]        
The defence submits that the loss is $40,000.

[100]     I conclude
that Ms. Chouhan was motivated and capable of operating a successful daycare.
Taking into account all of the negative contingencies, I assess the sum of
$110,000 for past income loss.

[101]     I have
assessed Ms. Chouhan’s loss on a yearly basis as follows:

2010: $10,000

2011: $27,500

2012: $27,500

2013: $30,000

2014: $15,000

[102]     The past
income loss is to be net of taxes. The tax deductions may be calculated using a
year by year approach: Laxdal v. Robbins, 2010 BCCA 565.

[103]     Ms. Clark
has provided a helpful summary of the annual tax rates. After deducting the applicable
taxes, the net amount of the award for past income loss is $101,500.

C.       Future Loss of Income

[104]     The
following principles apply in assessing future loss of earning capacity:

       i.         
the standard of proof for future events is simple probability and
hypothetical events are to be given weight according to their relative
likelihood;

      ii.         
Ms. Chouhan is entitled to an award for real and substantial
possibilities of loss;

    iii.         
evaluating Ms. Chouhan’s future loss of earning capacity may include comparing
what her earnings probably would have been without the accident to what she will
probably earn given the accident;

    iv.         
the court is to assess the losses, not to make a mathematical
calculation;

     v.         
an allowance must be made for the contingency that the assumptions upon
which the award is based may not come true; and

    vi.         
the overall award must be fair and reasonable.

Reilly v. Lynn, 2003 BCCA 49 at para. 101.

[105]     The medical
opinions regarding the chronic nature of Ms. Chouhan’s injuries are of
particular relevance to assessing her future loss of earning capacity. While
her injuries continue to disable her at present, I cannot conclude that Ms.
Chouhan will be permanently disabled.

[106]     Dr.
Wiltshire opined in his most recent report that Ms. Chouhan’s condition is not
expected to deteriorate further. His prognosis of the ongoing symptoms of
fibromyalgia was guarded. His prognosis of Ms. Chouhan’s depression which pre-dated
the collision was also guarded. In both cases, Dr. Wiltshire was of the view
that future stressful events would likely exacerbate those conditions.

[107]     Dr.
Wiltshire agreed that Ms. Chouhan’s current symptoms would prevent her from
operating a daycare now. Dr. Wiltshire concluded that Ms. Chouhan could open a daycare
when her symptoms improved.

[108]     Dr. Wiltshire
has been Ms. Chouhan’s physician pre and post-collision. He is at an advantage
in knowing and seeing Ms. Chouhan’s symptoms – whether related to the collision
or not – over an extended period. Most notably, Dr. Wiltshire does not say that
Ms. Chouhan is permanently disabled.

[109]     Dr.
Raghavan concluded that Ms. Chouhan’s depression, PTSD and fibromyalgia could
not be cured, but “significant symptomatic improvement can be achieved in a
proportion of patients with an appropriate treatment program”.

[110]     Dr. Raghavan
acknowledged that Ms. Chouhan had not been able to establish a rehabilitation
program because of her inability to exercise and take pharmacological
treatment. Dr. Raghavan reported that with a comprehensive multi-disciplinary
pain clinic program, a significant proportion of patients achieve significant
progress. Dr. Raghavan concluded that without a comprehensive and lengthy
rehabilitation program, Ms. Chouhan would likely be left with significant
disabilities. He also said that unless Ms. Chouhan made significant improvement
to her fibromyalgia and psychiatric symptoms, she would not be employable.

[111]     Dr.
Raghavan’s report thus concludes that unless Ms. Chouhan embarks on a
comprehensive and lengthy rehabilitation program, her symptoms will not
improve. However, it is also apparent that Dr. Raghavan was of the view that a
significant proportion of patients can achieve significant improvement with the
proper treatment. He did not exclude Ms. Chouhan from the group of patients
that would benefit from extensive rehabilitation. I therefore conclude that
there is reasonable optimism to expect that Ms. Chouhan will probably return to
her pre-collision condition, which allowed her to function albeit with some
mild discomfort.

[112]     Dr. Wade
also emphasized the need for Ms. Chouhan to embark upon a rehabilitation
program. In his view, if Ms. Chouhan’s mental health improved, and with the
appropriate physical rehabilitation, there would be no physical limitation
preventing her from operating a daycare.

[113]     Dr. MacBeath
was of the view that in spite of the improvements to her psychiatric disorders,
Ms. Chouhan would not have the required stamina to work full-time. Although I
prefer the opinion of Dr. Wade, who is more qualified to give an opinion
regarding Ms. Chouhan’s physical limitations, Dr. MacBeath’s caution must be
kept in mind, particularly in assessing the time needed for Ms. Chouhan to
improve her physical health.

[114]     It is
apparent that Ms. Chouhan is not yet in a condition where she can operate a daycare.
She is determined to recover. The medical opinions overall are optimistic that
with an appropriate, but lengthy period of rehabilitation, Ms. Chouhan should
be able to operate a daycare.

[115]     Ms.
Chouhan submits that the award for the loss of future earnings should be based
on her inability to work as a data entry clerk, daycare operator or computer
network technician. The range of damages is from $586,000 to $1,320,000.

[116]     The
defendant submits that the future loss of earning capacity should be approached
on a capital asset basis rather than on an earnings approach. The defendant
submits that the consequences of the collision are only part of the cause of
any impairment to earning capacity. The defendant argues that the future loss
is $50,000.

[117]     Based on
Ms. Chouhan’s plans to open and operate a daycare, I am satisfied that that the
loss of future earnings should be assessed using an earnings approach.

[118]     Ms.
Chouhan will probably be able to operate a daycare once she has received the
benefits of a comprehensive and lengthy rehabilitation program. It is apparent
from the medical opinions that recovery will be a long-term venture. Ms.
Chouhan must thus be compensated to the extent that the disabling symptoms
arising from the collision and caused by the defendant provide a fair award.

[119]     Ms. Chouhan
will not be able to operate her daycare while she is undergoing physical
rehabilitation. Given both the optimism and the cautions contained in the
medical opinions, I have concluded that Ms. Chouhan should be provided with
damages that cover her for three years. That does not mean Ms. Chouhan will be
unable to work for three years. The length of time simply takes into account
the long-term nature of the recovery process.

[120]     Taking
into account the contingencies and Ms. Chouhan’s pre-existing condition, I
assess her future loss of earning based on an annual income of $35,000.

[121]     The
present day value of $35,000 for three years is just over $100,000. That is
purely a mathematical calculation. However, the award for future loss of income
is an assessment rather than a strict mathematical equation.

[122]     Unknown
contingencies and uncertain factors make the assessment of future capacity loss
an imprecise calculation: S.R. v. Trasolini, 2013 BCSC 1135 at para 176.

[123]     Taking
into account all of the contingencies, I award $100,000 for loss of future
earnings.

D.       Costs of future care

[124]     The awards
for non-pecuniary damages and future loss of income are based upon Ms. Chouhan
receiving the benefits of rehabilitation programs. If there were no
rehabilitation programs that would assist Ms. Chouhan’s conditions, those
awards would be much higher. Thus, Ms. Chouhan is to be given those costs which
will give her the best opportunity to improve her symptoms.

[125]     Occupational
therapist, Ms. Carman, has outlined services, equipment and supplies that take
into account the doctors’ recommendations for rehabilitation and treatment.
Before an award can be made, I must conclude that the costs are medically
justified and necessary to assist Ms. Chouhan in her recovery.

a) Counselling

[126]     Ms.
Chouhan will be able to access counselling through Mental Health Services on a
long term basis. There is no cost to Ms. Chouhan and no suggestion that there
will be in the future. There will be no award for this service.

b) Occupational Therapy

[127]     Ms. Carman
recommends the services of an occupational therapist for a period of 8 to12
months. In order for Ms. Chouhan to receive the best and most effective
benefits from an occupational therapist, the time should be at the upper end. I
award consultation and travel expenses of $7,000 which will cover 12 months.

c) Supervised Exercise Program

[128]     Ms. Carman
recommends the services of a kinesiologist to assist with an exercise program.
The cost for 20-30 sessions would be $1200 – $2250. I award $2,000.

[129]     Ms. Carman
also recommends that Ms. Chouhan have access to a kinesiologist two to three
times per year to review and revise her exercise program. This would be of benefit
to Ms. Chouhan to assist her in maintaining a long term structured exercise
program. I award $2,000.

[130]     The costs
for Ms. Chouhan to utilize a gym range from $350 to $534 per year. Presently,
Ms. Chouhan’s home is significantly closer to the Tournament Capital Centre
which has an annual cost of $534. I will base the award on that cost.

[131]     Ms.
Chouhan is determined to recover and I am satisfied that she will utilize a gym
pass. However, it may also be that Ms. Chouhan will decide to purchase a home
gym that will be a one-time purchase and eliminate the annual costs of
attending an outside gym. Taking into account that Ms. Chouhan will use a gym,
whether at home or at a facility, I award $7,500.

d) Vocational Counselling

[132]     Ms. Carman
recommends vocational counselling services to ensure that Ms. Chouhan’s return
to the workforce provides her with the best opportunity for success. Ordinarily
this would be a reasonable cost to award, but Ms. Chouhan has the ability and
dedication to return to an occupation to which she is qualified and suited.
There will be no award for vocational counselling.

e) Homemaking Assistance

[133]     Ms. Carman
suggests that Ms. Chouhan requires assistance of four hours per week with
cleaning, bulk meal preparation and laundry. Ms. Carman also provides
alternatives with lesser hours if other family members assist with homemaking
tasks.

[134]     Ms. Mann
has assisted in the home, but she is getting on in years and her health has had
its own challenges. Mr. Chouhan has been working from home and doing the
cooking. Ms. Chouhan’s brother and sister-in-law have also been contributing,
but they intend to move back to Calgary. The result is that the homemaking
tasks will fall largely on Mr. Chouhan.

[135]     Mr.
Chouhan has not expressed an unwillingness to take on more around the home, but
he has to balance his time requirements with the demands of his accounting and
consultation practice. The result is that Ms. Chouhan must be provided with
homemaking assistance, which will also lessen the stress on her and enhance her
prospects for recovery.

[136]     In order
to allow Ms. Chouhan the best opportunity to concentrate on her rehabilitation
programs, four hours per week for the first year is reasonable. I award $5,500
for year one.

[137]     As Ms.
Chouhan recovers she will be able to do more around the home and will require
less assistance. In addition, as the children grow older they will probably
require less maintenance and be able to assist with household chores. As a
result, I award a further sum of $15,000 for homemaking assistance.

f) Child Care Assistance

[138]     Ms. Carman
suggests that the services of a nanny would allow Ms. Chouhan to concentrate on
her recovery and reduce the dependency for child care as presently being
provided by Mr. Chouhan and other family members.

[139]     Some of
what a nanny would do is covered under the award for homemaking assistance,
such as some cleaning, cooking and laundry. To make an award for nanny services
would duplicate some of the costs already awarded. To ensure that there was no
duplication, I awarded homemaking assistance on the generous side to ensure
that, without a nanny, Ms. Chouhan’s role in the family would be taken care of.

[140]     As long as
the homemaking assistance is provided for adequately, Mr. Chouhan and Ms. Mann
can provide, in the short term, the necessary services to ensure that the
children are properly cared for. Ms. Chouhan’s condition is expected to improve
in the long term such that she can participate to a larger degree.

[141]     By reason
of the damages granted for homemaking assistance, I decline to make an award
for nanny services.

[142]     However,
Ms. Carman and Dr. MacBeath suggest that Ms. Chouhan would benefit from her
youngest child going to day care while she concentrates on her rehabilitation.
It will be just over a year before the youngest child will be ready to attend
kindergarten. Dr. MacBeath recommends that 5 hours each day should be provided
either in home care or through a day care.  In order to give Ms. Chouhan the
best opportunity for recovery, she should be provided with the 5 days of day
care assistance. Allowing that Mr. Chouhan or Ms. Mann may provide some respite
by giving the equivalent of day care assistance, an award of $15,000 for one
year is reasonable.

g) Medication

[143]     Ms. Carman
acknowledges that it is difficult to predict what medications Ms. Chouhan may have
to take as a result of her collision-related injuries.

[144]     Currently,
Ms. Chouhan takes non-prescription medication that has an annual cost of $112 –
$154. Her prescription medications have an annual cost of $1,576 -$1,604.

[145]     It is
apparent that Ms. Chouhan is taking less medication and has expressed a desire
to no longer take Cymbalta. However, there may be occasions when Ms. Chouhan
has setbacks and where medication will be required and allowances should be
made for those events.

[146]     Ms. Chouhan
has suggested an award of $82,507, while the defendant argues that the amount
should be $2,500.

[147]     Ms.
Chouhan is entitled to be compensated for pharmaceutical costs that are related
to the collision. I award $10,000.

E.       Special Damages

[148]     The
parties agree that the special damages are $11,309.64.

VII.     Interest

[149]     Ms.
Chouhan is entitled to interest on the award for past income loss and special
expenses pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79,
at the rates set by the Registrar of the Court.

VIII.    Costs

[150]    
Ms. Chouhan is entitled to her costs. If either party has further submissions
with respect to costs, an application must be filed within 30 days of this
decision.

“S.D. Dley J.”

DLEY J.