IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140826

Docket: M120948

Registry:
Vancouver

Between:

Martha
Kuras

Plaintiff

And

Natasha
Kathleen Repo

Defendant

Before:
The Honourable Madam Justice H. Holmes

Reasons for Judgment

INTRODUCTION

[1]            
Martha Kuras was injured on May 19, 2010, when the car she was driving
was rear-ended on West 4th Avenue in Vancouver, B.C., after she slowed or came
to a stop to allow a parked vehicle to pull out in front of her.  The impact
was minor in its force, the cost to repair Ms. Kuras’s vehicle only about
$800.  The defendant admits liability for the accident.

[2]            
The trial concerned Ms. Kuras’s damages.  Ms. Kuras sustained
soft tissue injuries to her neck, upper back, and low back, and began to
experience different and more frequent headaches than the migraine headaches
she had suffered for a long time before.  She claims she experiences pain which
is now chronic and unlikely to improve, and which prevents her resuming some of
the forms of physical exercise that support her emotional health and enrich her
recreational and family life.  She also claims that her injuries will prevent
her working to the extent she anticipated in her new, second career as a
Registered Nurse.  Ms. Kuras seeks substantial damages for her
non-pecuniary losses (pain, suffering, and loss of enjoyment of life) and for
loss of her capacity to earn in the future, as well as more modest damages for
out-of-pocket expenses and costs of future care.  The parties agree that Ms. Kuras
should receive damages of $15,000 to compensate her for income she lost in the
weeks or months after the accident in her former career as a consulting
software developer.

[3]            
The defendant acknowledges that the accident caused the soft tissue
injuries and headaches Ms. Kuras experienced in the months that followed, but
says that those injuries were substantially resolved by the end of 2010.  The
defendant says that Ms. Kuras has not established that any neck or back
pain and headaches after that time resulted from the accident, and not from
other causes, notably the pregnancy that led to the birth of Ms. Kuras’s
child in October 2011, or the early degenerative changes which, as Ms. Kuras
acknowledges, pre-dated the accident.  The defendant says that in any event Ms. Kuras
has established no loss of earning capacity, because not all RN jobs have the
types of physical demands which Ms. Kuras claims her injuries prevent her
meeting, and numerous forms of assistance and accommodations are available. 
Since, the defendant says, the only real effect of her injuries is on some
forms of her recreational exercise, Ms. Kuras’s main damages are properly
for non-pecuniary losses, and not loss of earning capacity.  The defendant
submits that Ms. Kuras’s damages should in any event be assessed with
caution, because her claim is based only on her subjective reports of symptoms
and on the evidence of her husband, Malcolm Patterson, an interested party, and
is unsupported by evidence from more objective witnesses who were or are in a
position to see Ms. Kuras contending with the limitations she claims.

ISSUES

[4]            
The parties’ positions and the evidence give rise to the following
issues:

(a)           
whether Ms. Kuras has established that the accident was the cause
of the symptoms she experienced after the end of 2010 and continuing;

(b)           
taking into account how that issue is determined, the amount of
non-pecuniary damages (as compensation for pain and suffering and loss of
enjoyment of life) Ms. Kuras should receive;

(c)           
whether Ms. Kuras has established a loss of future earning
capacity, and, if she has, the amount of damages she should receive as
compensation for that loss;

(d)           
whether the evidence supports Ms. Kuras’s claim for costs of future
care; and

(e)           
whether Ms. Kuras’s special damages for her out-of-pocket expenses
should include compensation for orthotics and an air foam mattress she
purchased.

[5]            
I will address these issues in turn.

(a) DID
THE ACCIDENT CAUSE SYMPTOMS AFTER 2010?

[6]            
The plaintiff must establish on a balance of probabilities that the
defendant’s negligence caused or materially contributed to the injury in
respect of which the plaintiff seeks compensation.  The defendant’s negligence
need not have been the sole cause of the injury; a plaintiff need establish
only a substantial connection between the two: Sam v. Wilson, 2007 BCCA
622, at paras. 108-109.

[7]            
Causation is generally assessed according to the “but for” test: Athey
v. Leonati, [1996] 3 S.C.R. 458.  Applying that test, the court asks
whether, but for — or without — the defendant’s negligence, the plaintiff
would have suffered the injury.

[8]            
As I have mentioned, the defendant acknowledges that the accident caused
soft tissue injuries and headaches, but submits that those injuries were
substantially resolved by the end of 2010.  The defendant contends that Ms. Kuras
has failed to establish that the neck or back pain and headaches she claims to
have experienced since that time and on an ongoing basis are attributable to
the accident.  The defendant submits that, on the evidence, the more likely
causes are either or both of Ms. Kuras’s pregnancy and the early
degenerative changes that pre-dated the accident.

[9]            
Before addressing this submission, I will note in passing that both
parties recognize or accept that the headaches Ms. Kuras attributes to the
accident are different in nature from the migraine headaches she has
experienced since a teenager.  The migraine headaches continue, at an average
of between two and three per month, and there is no suggestion that the
accident caused or aggravated them.  The headaches Ms. Kuras attributes to
the accident are different in their quality and, Ms. Kuras claims, occur
in addition.  Dr. Russell O’Connor, physiatrist (physical medicine and
rehabilitation), who examined Ms. Kuras in August 2012 and December 2013
and gave evidence for Ms. Kuras, described those headaches as mechanical
or cervicogenic.

[10]        
As to both those additional headaches and her neck and back pain, I am
satisfied that Ms. Kuras has established that those symptoms troubled her
beyond 2010 and that they continue, as she claims, and that the accident was
their cause.

[11]        
I also find that the post-2010 symptoms affected Ms. Kuras in the
various ways she described in her evidence, and find no basis for the
defendant’s submission that Ms. Kuras overstates those effects.  The
defendant’s surveillance video-recording of Ms. Kuras shopping with Mr. Patterson
and their daughter showed no behaviour on Ms. Kuras’s part that was
inconsistent with her account of the pain and limitations she experiences.  In
making that observation, I take into account that Ms. Kuras does not claim
to be completely unable to perform certain tasks, such as picking up and
carrying her daughter, but rather claims that she must limit their frequency if
she is to avoid increasing her pain and fatigue.  And, for reasons similar to
those I will give later in relation to a different aspect of Ms. Kuras’s
claim, I find no weakness in Ms. Kuras’s case in this area as a result of
the absence of evidence from witnesses not called.

[12]        
As to the cause of the post-2010 symptoms, Dr. O’Connor’s evidence amply
supports the conclusion that they were caused by the accident, and I accept
it.  His evidence explains the mechanical cause of Ms. Kuras’s pain, and
how it is that her pain continues for longer than usual.  I will describe the
effects of Ms. Kuras’s symptoms in more detail below when I discuss the
assessment of damages for her pain and suffering and loss of enjoyment of life.

[13]        
Dr. O’Connor was asked, in cross-examination, about the role of Ms. Kuras’s
pregnancy, and he responded that the pregnancy essentially pushed a notional
pause button, placing Ms. Kuras’s recovery from the accident injuries on
hold while her body changed in various ways and while she likely had less time
or opportunity for the strength and conditioning she had been doing before.  He
agreed that the pregnancy likely changed Ms. Kuras’s low back pain,
causing it to shift its location from right of the midline to the left side,
but disagreed with the defendant’s suggestion that the pregnancy caused the
pain in the new location.  Dr. O’Connor explained that although body
changes in a pregnancy often do produce back pain, the pain Ms. Kuras
experienced on the lower left side was not new with the pregnancy:  it began
with the injury from the accident that caused it, and it “grumbled along”,
albeit in a slightly different location, through her pregnancy and afterwards.

[14]        
Dr. O’Connor also rejected the defendant’s suggestion that an
alternative cause or contributor was the early degenerative changes in Ms. Kuras’s
neck and back that came to light in an MRI conducted in December 2012.  There
is no suggestion in the evidence or submissions that these changes caused any
symptoms — or were even known to exist — before the accident.  Dr. Iain Dommisse,
orthopedic surgeon, who gave evidence for the defendant, noted that fully 40%
of the population have degenerative changes without pain.

[15]        
Rather, it is clear that the accident aggravated the previously
asymptomatic condition and rendered it symptomatic.  Dr. O’Connor
testified that this was so, and Dr. Dommisse gave evidence on this point
which was largely consistent with Dr. O’Connor’s, saying that the
pre-existing degenerative changes were activated by the accident, and symptoms
followed.

[16]        
The only evidence to support the defendant’s position that the injuries
from the accident were largely resolved by the end of 2010 is a record, made in
October 2010, of a treating physiotherapist who gave no evidence in the trial:

Currently I have returned her to
almost pain-free status and she has been back to running and other laborious
activity.

[17]        
Ms. Kuras acknowledged that the course of physiotherapy helped the
mobility in her neck, and later with her back, but she testified that it never
returned her to “almost pain-free status”, at least not if she tried to resume
her normal running.  She told the physiotherapist that running almost always
led to considerable pain, especially the next day, but he encouraged her to
continue and predicted that she “would be okay”.  Ms. Kuras testified that
her continuing attempts were not “okay”, and that is why she returned to her
family physician, Dr. Paula Iriarte.

[18]        
In my assessment, Ms. Kuras’s evidence on this point is confirmed
by that of Dr. Iriarte.  Dr. Iriarte explained that Ms. Kuras’s
pain would come and go, sometimes as a result of the anti-inflammatory medication
she was taking.  Clinical records support this evidence:  for example, in
mid-December 2010, Dr. Iriarte saw Ms. Kuras and noted, “[s]lowly her
back getting better” and “still not able to run aggravates her pain”, and in
February 2011, “hasn’t run since the summer, very disappointed”.  Dr. Iriarte
noted also that Ms. Kuras was accustomed to running significant distances
before the accident, and that being able to run only 5 kilometres would not
have been satisfactory to her.  I note also that Dr. Iriarte saw the
physiotherapist’s record before she prepared her report for the trial, if not
long before, but it did not affect her opinion that Ms. Kuras’s pain from
the accident continued after the end of 2010.

[19]        
Neither Dr. O’Connor nor Dr. Iriarte was asked directly to
comment on the proposition that the injuries from the accident were
substantially resolved by the end of 2010.  I find no basis on which to find
that they were, and am satisfied that Ms. Kuras has established that her
symptoms, as she describes them, from the injuries caused by the accident
continue to this day.

(b) WHAT
DAMAGES WILL COMPENSATE MS. KURAS’S NON-PECUNIARY LOSSES?

[20]        
On that basis, I turn to assess the damages Ms. Kuras should
receive to compensate her for the non-pecuniary losses resulting from these
injuries.

[21]        
Before doing so, I will briefly reject the defendant’s suggestion that Ms. Kuras’s
pleadings do not encompass a claim in respect of the chronic pain she alleges. 
The pleadings clearly allege various consequences of Ms. Kuras’s injuries,
including neck and back pain and headaches, and, as I have discussed, the
evidence establishes that they are chronic, in the sense that they have
persisted for four years since the accident and are expected to continue.  It
was not necessary for Ms. Kuras’s pleadings to specify the duration of the
pain and headaches for which she was claiming, or to characterize them specifically
as chronic.

[22]        
Damages for non-pecuniary losses compensate a plaintiff for consequences
such as pain, suffering, loss of enjoyment of life, and loss of amenities.
Consequences, or losses, of this nature cannot be truly or directly compensated
by money.  As McLachlin J. (as she then was) explained in Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.), at para. 262, these damages are
awarded “for the purpose of providing substitute pleasures and amenities to
make the life of the injured person more bearable”.

[23]        
The amount of compensation should be fair to all parties.  Fairness is
generally measured by reference to awards made in comparable cases; however, such
cases, though helpful, can serve only as a rough guide because each case
depends on its own unique facts: Trites v. Penner, 2010 BCSC 882, at paras. 188-189.

[24]        
The factors a court will consider when assessing damages for
non-pecuniary losses are helpfully set out in Stapley v. Hejslet, 2006
BCCA 34, at para. 46:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] 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 BCCA
54).

[25]        
As those factors make clear, the assessment is necessarily influenced by
the individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences.  It will also be influenced by the plaintiff’s ability
to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56, at para. 25.

[26]        
Where a plaintiff’s claim depends on his or her subjective reports of
pain, the court should exercise great caution, especially where complaints of
pain persist long after the usual recovery period.  This is because complaints
of pain cannot easily be disproved.  The plaintiff’s evidence must be
convincing; it may, however, consist of the plaintiff’s evidence alone, if the
surrounding circumstances are consistent.  McEachern C.J.S.C. gave this
guidance in the following oft-quoted discussion in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.), at para. 5:

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

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

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

[27]        
Each plaintiff’s claim is to be assessed according to the unique set of
facts in which it is made.  The accident that caused Ms. Kuras’s injuries
was relatively minor, and her injuries have taken longer than the norm to
resolve and may never do so entirely.  However, as I have explained, I am
satisfied that her injuries and the symptoms she describes are real.

[28]        
The defendant submits that Ms. Kuras overstates those symptoms, and
that the Court may infer this from her failure to see a doctor until about
three weeks after the accident.  However, I am satisfied that Ms. Kuras
believed — rightly or wrongly — that a walk-in clinic would not help her, in
her own doctor’s absence on vacation, and, more significantly, that she
expected her symptoms to resolve.  I note also that Ms. Kuras later undertook
extensive courses of physiotherapy and massage therapy, and, more recently
underwent painful trigger point injections. She would not likely have committed
the time and effort she gave to these therapies, had her symptoms not had a meaningful
effect on her life.

[29]        
I do not propose to summarize the extensive evidence concerning Ms. Kuras’s
background before the accident, and the effects of her injuries since.  Ms. Kuras
and Mr. Patterson each gave credible and detailed evidence that provided a
convincing picture of Ms. Kuras’s personality and her life before and
after the accident, with particular emphasis on her physical activities over
the years.  I will simply summarize my findings concerning the main effects of
the injuries.

[30]        
At the time of the accident, Ms. Kuras was 31 years of age, and had
been married to Mr. Patterson for approximately eight years.  The two had
met two or so years earlier, when they were both close to graduating from the
University of British Columbia with bachelor’s degrees in computer science. 
Fitness was important to them both.  Ms. Kuras engaged in some form of
exercise almost every day, whether gym workouts, running, cycling, or some
other fitness-oriented activity.  Her runs were sometimes as long as 20
kilometres, but were usually between 5 and 10 kilometres.  In addition to their
individual exercise regimes, Ms. Kuras and Mr. Patterson often
undertook outdoor activities together, as part of their recreational or social
life; day-hiking and cycling are examples.  For some of their holidays, they
cycle-toured and camped, without van or other support, travelling substantial
distances each day.  Ms. Kuras had no health problems at all, apart from
the migraines I mentioned earlier.

[31]        
After the accident, Ms. Kuras began to experience increasing neck
and back pain, as well as headaches, that within a few days prevented her
exercising.  She saw Dr. Iriarte’s partner, Dr. Menzies, about three
weeks after the accident, and he noted that her neck appeared to be stiff and
sore, and that it and her spine were restricted in their mobility.  On Dr. Menzies’
recommendation, Ms. Kuras started physiotherapy and massage therapy
shortly afterwards.

[32]        
Ms. Kuras’s pain continued, and she was prescribed a muscle
relaxant and an anti-inflammatory medication.  She had difficulty sitting for
more than thirty minutes at a time, and her work as a software developer was
consequently affected.  It was not until the fall of 2010 that she was able to
take up yoga and swimming, in an effort to maintain her fitness.  As I
discussed earlier, she tried to resume regular running, when her physiotherapist
urged her to, but did not succeed.

[33]        
In early 2011, Ms. Kuras’s pain was worse, not better, and was
waking her at night.  However, in March 2011, after learning unexpectedly that Ms. Kuras
was pregnant, she and Mr. Patterson decided to try another cycle tour that
they had postponed from the fall of 2010 because of her injuries.  However, the
drive to the start of the cycle tour exacerbated Ms. Kuras’s back pain,
and required the couple to take unplanned respite in a hotel.  Also, despite
adjustments to Ms. Kuras’s bicycle at the recommendation of her
physiotherapist, cycling led to neck pain and headaches, and required the couple
to reduce their distance on cycling days and increase the number of rest days.

[34]        
Ms. Kuras had a healthy and normal pregnancy, during which she
continued with physiotherapy.

[35]        
The demands of new motherhood, notably breastfeeding, required Ms. Kuras
to hold positions for extended periods which triggered or worsened her neck and
back pain and gave rise to more frequent headaches.  As the couple’s daughter
grew bigger, lifting and carrying her became more challenging.  Even now, Ms. Kuras
tries to limit the amount that she lifts her daughter, who is now two years of
age and weighs about 30 lbs.

[36]        
As I will discuss later, in relation to Ms. Kuras’s claim for lost
future earning capacity, she decided to start a new career as a registered
nurse after about ten years as a computer software developer.  She applied in
January 2011 for admission to the accelerated (twenty month) nursing degree
program at U.B.C., but, on learning of her pregnancy, deferred her entrance for
a year, until the fall of 2012.  At the time of the trial, Ms. Kuras was
completing her final shifts during the preceptorship that concludes the
program, and expected to write her licensing examination in June 2014.

[37]        
During the program, Ms. Kuras tried to stay active by commuting to
nursing school by bicycle.  However, she found that her symptoms did not allow
her to cycle both ways, and she therefore cycled only one way each day and took
the bus the other way.  She found that cycling inevitably produced neck pain,
which, in turn, led to a headache, which she usually treated with Tylenol or
ibuprofen.  During this period, Ms. Kuras also did yoga, worked out at a
gym, and periodically tried to resume running; however, increases in her
activity level always led to flare-ups of her symptoms.

[38]        
In her nursing program, it was in the clinical portions that Ms. Kuras’s
symptoms troubled her the most.  Her clinical rotations began in late 2012 or
early 2013, continued through to and included her preceptorship, which
concluded at the time of the trial.

[39]        
In her preceptorship, Ms. Kuras shadowed a qualified RN, working with
her on a schedule, typical for RN work, of four 12-hour shifts, followed by
four days off.  The four work shifts consist of two day shifts followed by two
night shifts.  As I will discuss later in relation to her claim for lost future
earning capacity, Ms. Kuras finds her symptoms progressively more
difficult to manage during the course of this four-day course of work.  In
short, Ms. Kuras struggles to get through the four shifts, and has little
energy left for positive family time or other activities except in the short
period of a day or, at most, two, after she has recovered from the four working
shifts and before she prepares herself to start the next.  In noting these
effects for Ms. Kuras, I take into account that a course of 12-hour work
shifts, which includes both day and night shifts, is a demanding regimen even
for the uninjured.

[40]        
Unsurprisingly, Ms. Kuras’s mood is affected by her symptoms and
the limitations they place on her family life.

[41]        
The limitations also affect Ms. Kuras’s emotional health in a less
direct way by reducing the extent to which she can rely on exercise to cope
with stress and other challenges, as she did before.  Ms. Kuras struggled
with an eating disorder in her teens and later, and exercise was one of the
tools she used to keep it in check.  She testified that although the eating
disorder has not resurfaced since the accident, she recognizes in herself the
beginnings of some unhealthy thought patterns she associates with the previous
problems.  Although in cross-examination Ms. Kuras resiled somewhat from
the evidence she had given to this effect in her examination-in-chief, I find
that her eating disorder has the potential to re-emerge, with the loss of
frequent and strenuous exercise as her main coping mechanism.

[42]        
At this point in her recovery, Ms. Kuras continues with yoga and
swimming and some workouts at the gym, but is unable to resume her preferred
forms of exercise at her pre-accident level.  She does cycle, but no longer for
significant distances, and usually with neck pain and headaches as consequences,
and cycle-touring seems to be out of the question.  She walks with Mr. Patterson
and their daughter, sometimes for considerable distances, but rigorous hikes
are no longer enjoyable for her because of the pain they produce.  Her efforts
to resume running produce flare-ups that she cannot tolerate.

[43]        
Ms. Kuras seeks an award of between $100,000 and $125,000 for her
non-pecuniary losses, and relies on the following cases in support: Gosselin
v. Neal, 2010 BCSC 456; Foran v. Nguyen, 2006 BCSC 605; and Fox
v. Danis, 2005 BCSC 102.

[44]        
However, in my view the plaintiffs in those cases generally experienced
injuries with consequences more severe than in the present case.  For example,
the plaintiff in Foran had lasting pain in her neck that radiated to her
head and trapezius and was “always” present, though it ranged in severity (paras. 13-14).
She was unable to sleep through the night and was also left with a
significantly higher risk for re-injury to her neck.  In Fox, the
plaintiff experienced permanent nerve damage in addition to the soft tissue
injury to her lower back.

[45]        
The defendant suggests an award of between $40,000 and $50,000, and
relies on these cases in support: Rozendaal v. Landingin, 2013 BCSC 24;
Sharpe v. Tidey, 2009 BCSC 948; Lees v. Compton, 2013 BCSC 1015; Hatch
v. Kumar, 2013 BCSC 2049; Skusek v. Horning, 2009 BCSC 893; DeGuzman
v. Ge, 2013 BCSC 1450; and Singh v. Borejszo, 2013 BCSC 1584.

[46]        
Some of the cases on which the defendant relies involved consequences
less severe than those experienced by Ms. Kuras.  For example, the
plaintiff in Sharpe, who, like Ms. Kuras, was an athletic person, did
not experience significant changes in his lifestyle and, in fact, found that
sports activity helped him to manage his pain; also, his symptoms were expected
to abate over the longer term, though not to fully resolve.  In both Lees
and Skusek, documentary evidence indicated that the impact of the
injuries had not been so severe as to prevent strenuous recreational activity.  In
Singh, the plaintiff’s symptoms, which included headaches and pain in
her neck, back, and shoulders, were “80% recovered” by approximately two years
after the accident (para. 30).

[47]        
Ms. Kuras’s symptoms are not dissimilar to those of the plaintiff
in Rozendaal, where the award was $40,000.  However, the consequences of
those symptoms on Ms. Kuras’s enjoyment of life supports a higher award.  Like
Ms. Rozendaal, Ms. Kuras is now restricted in her enjoyment of many
aspects of her daily life, and will likely continue to be constrained by her
symptoms, which intrude with varying frequency and intensity.  But in addition,
Ms. Kuras can no longer engage in activities (running, long-distance
cycling, and serious hiking) which she not only enjoyed but also relied on for
her emotional well-being.  Moreover, some of those activities were key elements
of her family life with Mr. Patterson, including vacations.

[48]        
I conclude that the appropriate award for Ms. Kuras’s non-pecuniary
losses is $80,000.

(c) IS
LOSS OF FUTURE EARNING CAPACITY PROVEN?  WHAT DAMAGES WILL COMPENSATE?

[49]        
A claim for loss of future earning capacity raises two key questions: 
first, has the plaintiff’s earning capacity been impaired by his or her
injuries; and second, if it has, what compensation should be awarded for the
financial harm that will accrue over time as a result?  To the extent that this
is possible, the plaintiff should be put in the position he or she would have
been in but for the injuries caused by the defendant’s negligence: Lines v.
W & D Logging Co. Ltd., 2009 BCCA 106, at para. 185.  The Court
thus compares the plaintiff’s working life as it is likely now to be, with the
working life the plaintiff would likely have had without the accident: Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 32.

[50]        
The assessment of loss must be based on the evidence, and is not reached
by the application of a purely mathematical calculation.  The appropriate means
of assessment will vary from case to case.  There are two main approaches to
the assessment of loss of future earning capacity:  the “earnings approach”,
outlined in Pallos v. Insurance Corp. of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.), at para. 43, which is based mainly on projected
income loss; and the “capital asset approach”, outlined in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.), which examines the effects on the plaintiff’s
overall capacity to earn, her value to herself and to others in the applicable
employment market, and the range of job opportunities she is able to take up.  Both
approaches are correct approaches, the choice between them turning largely on
whether the loss in question can be quantified in a measureable way: Perren
v. Lalari, 2010 BCCA 140.  The overall fairness and reasonableness of the
award must also be considered, because the assessment of damages is a matter of
judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1, at para. 18.

[51]        
The standard of proof in relation to future events is simple
probability, not the balance of probabilities.  A plaintiff is entitled to
compensation for real and substantial possibilities of loss, which are to be
quantified by estimating the chance of the loss occurring.  Thus, hypothetical
events are to be given weight according to their relative likelihood: Athey,
at para. 27.  Similarly, since future events are inherently unknown, the
assessment must allow for the contingency that the assumptions upon which the
award is based may prove to be wrong: Milina, at para. 175.

[52]        
Ms. Kuras submits that her earning capacity is significantly
reduced by her inability to take up a full-time nursing position or to work
overtime when that work is available.  She testified that her experience in the
preceptorship, with the shift structure typical for RN work in direct patient
care, led her to conclude that she can manage two consecutive shifts, but not
four.  Ms. Kuras testified that after her first shift, she usually needed
to take a Tylenol in the evening after she returned home.  After the second
shift, she had similar symptoms but they were still “tolerable”.  However,
because she knew that her pain would not likely abate during the day between
her second shift, a day shift, and her third shift, a night shift, she usually
took Tylenol 3 during that time, in order to be able to take up the night shift
on the third day.  She also tried to rest as much as possible during that third
day, and limited her activities with her daughter.  When she worked the two
night shifts, she found herself unable, because of pain, to sleep in the
two-hour rest period available to RNs for that purpose.  By her fourth and last
shift, her pain was distracting and prevented her from concentrating properly
on her work.

[53]        
Ms. Kuras testified that she tried to time her medications during
the course of the four working shifts in her preceptorship so that they
interfered as little as possible with her cognitive function while working, and
she relied also, for safety, on the constant supervision of her work by her
preceptor.

[54]        
She testified that as a result of her experience during her
preceptorship, and contrary to her and Mr. Patterson’s original plan to
recoup the costs of her change of career, she intends not to seek a full-time
nursing position but rather to seek a part-time position allowing her to work
for two days at a time.  She hopes to gain as much experience as she can on
that basis until she is able to work at full capacity.

[55]        
Ms. Kuras submits also that over the longer term, her injuries will
restrict the range of positions she can manage, limiting her to positions with
lighter duties or without shift work.  Furthermore, she submits that her
injuries will place her at increased risk of re-injury in a profession which,
as I find the evidence established, itself involves a high risk of injury. 
These effects all place Ms. Kuras at increased risk of unemployment, she
submits.

[56]        
The evidence made clear that new graduates are expected to work in
direct patient care until, usually after one or two years (occasionally as
little as six months), they secure a permanent full-time position.  Direct
patient care is recognized as physically demanding for nurses, who are required
to shift and manoeuvre equipment and to move patients and to help them move
themselves.  It is this type of care which, as I discussed above, Ms. Kuras
found too difficult to sustain over the course of four consecutive shifts without
pain that interfered with her family and personal life and caused her concern
about safe practice as a nurse.

[57]        
The defendant submits first that Ms. Kuras has not established that
her injuries make her unable to meet the physical demands of a full-time
nursing position, because her own evidence on that point is not credible or
reliable, and it lacks any support from objective sources, such as co-workers,
who could be expected to confirm Ms. Kuras’s limitations if they were
real.

[58]        
This submission cannot succeed, because I find Ms. Kuras’s evidence
convincing about her experience in her preceptorship.  It is also confirmed by
the evidence given by Mr. Patterson and, to an extent, Ms. Kuras’s
mother, and is largely consistent with the result of functional capacity
testing by Russell McNeil, occupational therapist, as well as with Dr. O’Connor’s
observations and opinion, all of which I accept.

[59]        
That Ms. Kuras has chosen not to advise any of her supervisors or
co-workers about her symptoms or limitations says more, on my view of the
evidence as a whole, about her determination to succeed in her chosen field (therefore
not wanting to reveal her limitations) than it does about the nature and effects
of her symptoms and limitations.  Also, although I find Ms. Kuras entirely
credible on the subjects of her symptoms and their effects, I conclude that she
has been strategic in what she chooses to say about those or other subjects to
people in or associated with her workplace or nursing program.  For example, in
an email to an administrator of the nursing program, Ms. Kuras gave false
information about her travel plans in an effort to gain advance information
about her preceptorship placement.

[60]        
The defendant submits also that it is not enough for Ms. Kuras to surmise
that she will have difficulty meeting the physical demands of a full-time job
as an RN; she must prove that this will be so.  As the Court of Appeal noted in
Kim v. Morier, 2014 BCCA 63, at para. 8, a plaintiff must show a
realistic possibility that she will be less able to compete in the marketplace
in a manner that has economic consequences, and not merely psychological ones,
such as anxiety or fear about her future.

[61]        
However, Ms. Kuras’s claim in this area does not rely on her
perception alone.  It has the support of her experience to date, as she
described it in her evidence, and of the evidence of Dr. O’Connor and Mr. McNeil
about her physical limitations and how they are likely to affect her ability to
perform as the job of an RN requires.  Cynthia Startup testified about
vocational opportunities for RNs, and her  report describes those requirements
in detail.

[62]        
Robert Carson, economist, calculates lifetime earnings for a newly-qualified
RN from the time of the trial with a present value of between approximately $1
million (to Ms. Kuras’s age 59) and approximately $1.5 million (to her age
63).  Ms. Kuras submits that the assessment of her loss of future earning
capacity should be based on a conclusion that she will experience a 25%
reduction in her capacity to work over the course of her working career.  She
suggests an award of $371,885, plus additional compensation in respect of lost
overtime shifts, an aspect of her claim I will address later.

[63]        
However, in my view, a lifetime earnings-based approach is not the most
suitable approach to the assessment of Ms. Kuras’s loss, because I am unable
to accept her position that she may be limited to part-time work for most, and
possibly all, of her career as an RN.

[64]        
In my view, once Ms. Kuras has completed the necessary amount of direct
patient care to qualify her for an entry-level permanent position, she will
find such a position, suited to her physical capabilities and interests, that
she will be able to maintain on a full-time basis.  The evidence made clear
that within the wide range of job opportunities for RNs are many for which the
physical requirements are far less onerous than the direct patient care Ms. Kuras
performed during her preceptorship.  Although the work for RNs varies greatly,
the rate of pay does not, subject to lock-step increments reflecting
experience.

[65]        
Ms. Kuras submits that her career choice is to work on an acute
care or medical ward, such as a cardiac ward, where the physical demands are
high, and that she will likely never be able to manage full-time work in such a
position.  However, in my view, Ms. Kuras’s interests within the nursing
field are less fixed than this submission implies.  On the evidence, her
interest in, specifically, cardiac care did not emerge until December 2013 or
January 2014, only months before the trial.  In emails relating to actual or
contemplated job applications, Ms. Kuras indicated interest in entirely
different nursing fields:  for example, in January 2014, she said she felt a pull
toward eventually completing the Nurse Practitioner program.  Qualification as
a Nurse Practitioner would require further education, but would lead to higher
earnings than an RN’s, with significantly lower physical demands than for RN
direct patient care.

[66]        
On all the evidence, the career of Nurse Practitioner seems well-suited
to Ms. Kuras’s interests and to her evident strengths, and is a career
option that I consider her very likely to have pursued at some point, even
without the accident. I therefore cannot conclude that, over the long term, Ms. Kuras’s
earnings will be seriously diminished by the accident’s effects.

[67]        
Nonetheless, Ms. Kuras has established a loss of future earning
capacity that has two main aspects.

[68]        
First, I accept that in order to gain the experience equivalent to
between one and two years in direct patient care, she will not be able to work
more than two shifts on consecutive days before taking days off.  This will
likely mean that she is confined to part-time work, with correspondingly
reduced earnings.  I see a possibility that Ms. Kuras will find a position
which allows her to adjust the shift schedule and to work, for example, two
days on and then two days off.  However, I consider that possibility quite
small:  while employers of RNs generally try to accommodate disabilities and
physical limitations where it is reasonable and practicable to do so, the
evidence in the trial referred to no specifics of how this might be done for Ms. Kuras
in a direct patient care position.

[69]        
The award will therefore include compensation for a loss of approximately
50% of the full-time RN earnings over Ms. Kuras’s first and second years.  Using
Mr. Carson’s and economist Mark Szekely’s calculations as a general guide —
although they did not address this outcome specifically — I conclude that this
aspect of the award should be in the amount of $40,000.

[70]        
With Ms. Kuras confined to part-time work while she completes the
necessary period of work in direct patient care, that period will be longer
than if she were working full-time, delaying the start of her employment in a
higher-paying permanent full-time position suited to her interests and
abilities.  The award will therefore also include compensation to reflect the “lag”
effect on her earnings in her second, third, and fourth working years.  Since
the annual increase in full-time RN earnings in those early years appears to be
approximately $2,500 per year, the award will include approximately $7,500 to
reflect the lag effect.

[71]        
The award will not include compensation for an ongoing or indefinite
“lag” in earnings (beyond four years), resulting from the delayed start to Ms. Kuras’s
first full-time position, because, as discussed above, I conclude that without
the accident she would likely at that stage have taken up additional education to
gain qualification as a Nurse Practitioner, with, then, higher earnings than as
an RN.

[72]        
Second, Ms. Kuras has established a loss of future earning capacity
that has a lifetime aspect.  Although, as I have indicated, I conclude that,
after the period of part-time or shift-modified work in direct patient care, Ms. Kuras
will secure a full-time position suited to her interests and physical
abilities, the range of options open to her, and consequently her marketability,
are nonetheless restricted by her limitations.

[73]        
This aspect of the award will be $60,000.  I see no basis in the
evidence for reducing that amount because of possibilities that other factors
would have limited Ms. Kuras in this way even without the accident.

[74]        
As I mentioned above, Ms. Kuras asks that the award for lost
earning capacity take account also of lost opportunity to work overtime shifts
at substantial increases in the hourly rate of pay.  Based on Mr. Carson’s
calculations, she asks that her award include an additional $170,000 to reflect
this loss.

[75]        
I do not doubt that Ms. Kuras has a strong work ethic, or that she
and Mr. Patterson made financial and other sacrifices to allow her to take
up her new career.  However, they also lead and value full and rich personal lives,
which include substantial amounts of time devoted to exercise and outdoor
recreation, for personal fitness or as family activities.  I do not view the
evidence as establishing that but for the accident Ms. Kuras would have
worked overtime when opportunity presented.

[76]        
On the basis I have outlined, the award for Ms. Kuras’s loss of
earning capacity will be in the total amount of $107,500.

[77]        
On the approach I have taken to the assessment of this loss, I doubt
that the recent change to the discount rate will have any meaningful effect on
the amount.  However, as they suggested by letter after the Court reserved
judgment, counsel will have leave to apply concerning the matter, should
further direction be necessary.

(d)  WHAT ARE THE COSTS OF FUTURE CARE?

[78]        
A plaintiff is entitled to compensation for the cost of future care
based on what is reasonably necessary to restore her to her pre-accident
condition insofar as that is possible.  The award is to be based on what is
reasonably necessary on the medical evidence to preserve and promote the
plaintiff’s mental and physical health: Milina, at para. 172.

[79]        
Ms. Kuras claims a total of $15,000 for the costs of future care,
reflecting the costs of the following:

·                
“trigger point injections including Botox” (plaintiff’s written
submissions), between three and four times per year, at a cost of between $400
and $800 for each set; and

·                
various items or forms of assistance recommended by Mr. McNeil
for pain management or housekeeping, having a total cost of approximately $850
for initial purchases, before taxes, with many of the items requiring
replacement every two to three years; for the initial and replacement costs, Mr. Carson
calculates a total present value of approximately $9,000.

[80]        
Future care costs must be justified as medically necessary, and they
must be reasonable.

[81]        
The defendant submits that the cost of trigger point injections lacks
medical support, but I do not agree.

[82]        
Dr. O’Connor testified that although trigger point injections are
unlikely to give Ms. Kuras any significant benefit, they may offer a
temporary pain management strategy.  In light of that advice, it is reasonable
for Ms. Kuras to undergo the injections in the hope of some relief.  Indeed,
Ms. Kuras has already begun a difficult process to this end, having had
what she testified were extraordinarily painful trigger point injections on two
occasions, without relief at those times but on the understanding that success
often requires on average eight treatments.

[83]        
However, it is not apparent from the evidence that the trigger point
injections come at a cost to Ms. Kuras, or, if they do, what it is.  In
her submissions, Ms. Kuras claims a cost of between $400 and $800 for each
set of “trigger point injections including Botox”, to be administered between
three and four times per year.  However, this cost appears to be taken from Dr. O’Connor’s
December 2013 report, which, as I read it, distinguishes trigger point
injections from Botox injections, and allocates the $400-800 cost to the latter
only:

She could trial trigger point
injections into the neck and peri-facet area.  She could also try a facet block
.  Lastly, she could also trial Botox injections to see if this would help
with her neck pain and headache frequency.  The cost for this is approximately
$400-$800 every three months depending on whether she needs one or two vials of
Botox.

[84]        
There is no evidence of the cost to Ms. Kuras of the trigger point
injections she will continue.  And although Dr. O’Connor does state a cost
for Botox injections, there is no evidence that Ms. Kuras wishes or plans
to undergo those injections.  On all the evidence, including the evidence of Ms. Kuras’s
attention to healthy living and her general dislike of taking medicines, I
cannot infer that she will likely undergo the Botox injections as a form of
treatment.

[85]        
Nor am I persuaded that Ms. Kuras has established her claim for the
costs of all the items recommended by Mr. McNeil.  There is no evidence
that Ms. Kuras has purchased or intends to purchase the various
housekeeping items — or, indeed, that she and Mr. Patterson did not
already have housekeeping equipment with the features Mr. McNeil views as
beneficial.  Nor is there evidence to support a conclusion that Ms. Kuras
will likely purchase and use the various pain management devices, the most costly
of which is a TENS unit, together with training by a physiotherapist in how to
use it.

[86]        
In all these circumstances, the evidence does not support an award for
future care costs.

(e)  SHOULD SPECIAL DAMAGES INCLUDE THE COSTS
OF ORTHOTICS AND AN AIR FOAM MATTRESS?

[87]        
The defendant submits that the evidence does not support Ms. Kuras’s
claim for the cost of orthotics, but I do not agree.  Ms. Kuras testified
that Dr. Iriarte recommended orthotics when Ms. Kuras expressed
concern about embarking on her preceptorship with her usual level of pain.  In
my view, that evidence sufficiently supports the claim for the cost of this
item.

[88]        
However, I reach the opposite conclusion about Ms. Kuras’s claim
for the cost of an air foam mattress.  Ms. Kuras testified that she
purchased the mattress because she hoped it would help her back.  There is no
evidence that it did, or that the purchase was recommended by a medical
professional or, indeed, anyone else.  Ms. Kuras’s hope does not provide a
sufficient foundation for requiring the defendant to compensate her.

[89]        
The award for special damages will reflect the cost of orthotics as well
the expenses the defendant agrees should be compensated, namely for physiotherapy,
massage therapy, acupuncture, and medications to the time of the trial.

[90]        
On this basis, the award will be in the amount of $3,677.

ORDER

[91]        
Damages are awarded as follows:

[92]        
If the parties are unable to agree on costs, they may, within 21 days of
these reasons, and before entry of the order reflecting these reasons, arrange
to speak to the issue at their and the Court’s earliest convenience. 
Otherwise, the order will provide for Ms. Kuras to have her costs at Scale
B.

“H. Holmes, J.”

The Honourable Madam Justice H. Holmes