IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140926

Docket: 11-4347

Registry:
Victoria

Between:

Amber Dawn Hawkins

Plaintiff

And

Christina
Laudencia Espiloy

Defendant

Before:
The Honourable Madam Justice Fenlon

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff was injured in a rear-end collision while completing her
nursing degree. Liability for the accident is admitted. The defendant disputes the
extent of the plaintiff’s injuries and the need for the plaintiff to work
part-time.

BACKGROUND

[2]            
The plaintiff Amber Hawkins grew up in the small northern town of
Mackenzie, British Columbia, where she continues to live with her husband,
Justin Hawkins. From a young age Ms. Hawkins’ goal was to become an acute
care nurse. She trained first as a licensed practical nurse (“LPN”), working in
that role to support her husband through his education. Once he qualified as a
teacher, Ms. Hawkins decided to further her own career by completing a
four-year nursing degree in Victoria.

[3]            
When the accident occurred in early December 2009, Ms. Hawkins had
almost completed the first term of her nursing program. She was a rear seat
passenger in her classmate’s car. They were stopped at a red light when the
vehicle driven by the defendant Christina Espiloy struck their vehicle from
behind, pushing it into the car ahead of them. At the time of the collision, Ms. Hawkins
was leaning forward and twisted to the right to speak to another classmate who
was in the front passenger seat.

[4]            
Immediately following the collision, Ms. Hawkins felt tightness
from her neck to her low back and within a few days had a significantly
restricted range of motion.

[5]            
Within several days of the accident, Ms. Hawkins began experiencing
pain in her right buttock; bilateral foot numbness developed within a few weeks.
She also experienced one major episode of urinary incontinence and several
other minor events of this kind over the ensuing weeks.

[6]            
In early January 2010, about one month post-accident, Ms. Hawkins
started a practicum as part of her nursing program. She missed 10 of 24
sessions due to her injuries.

[7]            
In February 2010, one of Ms. Hawkins’ treating physicians
prescribed Lyrica for sciatica which helped with pain and allowed her to sleep.
However, the Lyrica made her drowsy and dizzy; she did not feel well rested and
felt mentally slow and unable to focus at work or concentrate in class. Ms. Hawkins
stopped using Lyrica after about six weeks based on her doctor’s instructions,
and focussed on a home exercise program which she continues to do.

[8]            
By spring 2010, Ms. Hawkins’ condition had become sufficiently
acute that she consistently walked with a limp. She became less social and
struggled to meet minimal expectations in her practicum.

[9]            
By the summer of 2010, Ms. Hawkins had become frustrated and irritable.
Her relationship with her husband began to suffer. In October 2010, she resumed
using Lyrica despite her concerns about the side effects because she needed
pain relief. Ms. Hawkins remained on Lyrica until June 2011, but over time
the benefits of the drug were overshadowed by the negative side-effects,
notably:  fluid retention, a 25-pound weight gain, increased emotionality, and cognitive
decline. In addition, the drug became less effective at treating her pain.

[10]        
In February and March 2011, Ms. Hawkins saw a psychologist, Dr. Boissevain,
three times because she was overly emotional, would cry in public, and thought
she was losing her ability to cope with life in general.

[11]        
By summer of 2011, Ms. Hawkins was exhausted. Her husband described
her as using all of her energy to meet school obligations and deal with her
symptoms. He said there were several times when she broke down and did not feel
that she could continue with her nursing program. Ms. Hawkins was so irritable
that he questioned whether they would ever have a normal relationship again.

[12]        
In December 2011, the plaintiff began taking Nortriptyline. This
medication provided improvement with sleep and nerve pain. Ms. Hawkins’
mood also improved.

[13]        
In April 2012, Ms. Hawkins completed her nursing program with her
classmates. She accepted a full-time position as an acute care nurse at the Mackenzie
Hospital that she held until August 2013 when she changed to a part-time 0.62
position.

ANALYSIS

What injuries has the plaintiff sustained due to the accident?

[14]        
The defendant argues that Ms. Hawkins sustained mild soft-tissue
injuries in the accident. The defendant says that Ms. Hawkins experiences
mild, non-disabling symptoms that are likely to improve:  symptoms that do not functionally
limit her in any significant way. The defendant’s position is that Ms. Hawkins
has largely recovered, and that her recovery is evident from her excellent
performance during nursing school and full-time work as a nurse in the
Mackenzie hospital for 17 months.

[15]        
The defendant’s characterization of Ms. Hawkins’ injuries is not
consistent with the vast majority of the evidence at trial. For the reasons
that follow, I find the plaintiff sustained significant, ongoing, and likely
permanent injuries due to the motor vehicle accident.

[16]        
First, the plaintiff was a credible, reliable witness, who did not
exaggerate her symptoms. Despite one-and-a-half days of skilled
cross-examination, she was not shaken from her evidence.

[17]        
Second, Ms. Hawkins’ evidence was corroborated by that of her
husband, mother, classmates, practicum instructor, and the head nurse at the
Mackenzie Hospital. All of these witnesses presented a consistent picture of Ms. Hawkins’
limitations and her determination to overcome those limitations. I found each
of the plaintiff’s witnesses to be candid and generally reliable.

[18]        
Third, the defendant’s submission that Ms. Hawkins’s symptoms are
not supported by objective findings is not in keeping with the medical evidence
as a whole. A functional capacity evaluation conducted by Min Kyi found
restricted range of motion and reduced muscle velocity after a day of testing.

[19]        
Fourth, I prefer the opinion evidence of the plaintiff’s physiatrist, Dr. Filbey,
over the opinion evidence of Dr. Winston, the physiatrist called by the
defendant.

[20]        
Dr. Winston examined Ms. Hawkins on one occasion in November
of 2013. He opined:

Ms. Hawkins reports that she
is improving with time. I suspect that with ongoing work at strengthening she will
continue to improve. There is nothing to suggest that she has developed any
degenerative processes from her injuries and her x-rays and imaging have been
stable. Her physical examination in my presence was entirely normal and quite
symmetrical with the exception of slight tightness in her right quadriceps, and
discomfort to deep palpation. Therefore I would expect her to continue to
improve over time.

[21]        
It is notable that Dr. Winston’s assessment was conducted five
months after Ms. Hawkins’ move to part-time work, at a time when her
symptoms had declined. On cross-examination Dr. Winston acknowledged he
did not ask Ms. Hawkins about the impact of full-time work on her
avocational activities and her mood.

[22]        
Dr. Winston noted there were no objective findings on imaging to
support a degenerative condition. However, in cross-examination he acknowledged
that MRIs do not always identify a reason for a patient’s pain. Dr. Winston
disagreed with Dr. Filbey, who holds the view that Ms. Hawkins’ right
leg neuropathic pain is due to piriformis syndrome, but Dr. Winston did
not palpate the piriformis muscle or perform any specific piriformis test. Nor
does his opinion account for Ms. Hawkins’ nerve pain and foot numbness.

[23]        
Dr. Filbey examined Ms. Hawkins on three occasions in 2011,
2012 and 2013. He noted various objective signs of injury, including decreased
lumbar range of motion, lumbar tenderness on palpation, and a positive
piriformis test. The symptoms Dr. Filbey observed were similar to those
found by Dr. Winston on physical exam. In his November 20, 2013 report Dr. Winston
noted:

a.         Lumbar flexion
limited by pain;

b.         Hip discomfort
during hip range of motion;

c.         Right quadriceps musculature tightness;

d.         Right buttock tenderness to deep palpation; and

e.         Greater trochanteric
tenderness to palpation.

[24]        
Dr. Filbey testified at trial. Counsel for the defendant did not
cross-examine him.

[25]        
I accept Dr. Filbey’s opinion that Ms. Hawkins suffers from piriformis
syndrome, ongoing low back pain, residual stiffness from largely resolved
cervical/thoracic spine strain, right hip/groin pain related to the piriformis
muscle tightness, and secondary trochanteric pain due to the ongoing hip and
buttock symptoms.

[26]        
I also accept Dr. Filbey’s opinion that these injuries are due to
the motor vehicle accident. Ms. Hawkins was a healthy and physically
active 26-year-old at the time of the accident with no back or leg problems. All
of her symptoms began within weeks of the accident.

[27]        
Finally, I accept Dr. Filbey’s prognosis that the low back symptoms
will continue over the long term with periodic exacerbations on activity, and
that this problem is likely to worsen over time in Ms. Hawkins’ middle and
upper working years. I also accept Dr. Filbey’s opinion that the
piriformis syndrome and related symptoms will likely remain present at a
similar or gradually lesser intensity, but will remain vulnerable to
reoccurrence.

[28]        
The defendant argues that I should draw an adverse inference because Ms. Hawkins
did not call two doctors:  Dr. Fougere, the family physician who treated Ms. Hawkins
in Victoria for the first one-and-a-half years; and Dr. Vincent, a
specialist in back pain who gave Ms. Hawkins a number of injections over
the years to control pain.

[29]        
An inference adverse to a litigant may be drawn by the Court if, without
sufficient explanation, that litigant fails to call a witness who might be
expected to give supporting evidence: Buksh v. Miles, 2008 BCCA 318 at para. 31.

[30]        
However, it is not necessary to call every medical doctor who saw the
plaintiff: Buksh at paras. 32-35. In the present case, Dr. Vincent
prepared a report and was on the plaintiff’s list of witnesses at the start of
trial. Counsel for the plaintiff explained that Dr. Vincent was not called
in order to accommodate the limited trial time.

[31]        
Counsel for the plaintiff explained that Dr. Fougere was on the
plaintiff’s list of witnesses originally to address causation because she saw
the plaintiff very early on as a walk-in patient. When causation did not arise
on cross-examination of the plaintiff, counsel determined that it was not
necessary to call Dr. Fougere. Dr. Fougere now resides in
Saskatchewan.

[32]        
The defendant had the medical records of both of these doctors and the
report produced by Dr. Vincent. The parties were under pressure to
complete the trial within the time allotted. I accept the plaintiff’s
explanation for not calling the two doctors and I see no basis for drawing an
adverse inference in the circumstances.

Non-pecuniary Damages

[33]        
The plaintiff seeks non-pecuniary damages of $80,000 – $100,000. The
defendant submits $65,000 is an appropriate award.

[34]        
Each party provided me with a number of cases with similar facts
supporting the range they propose. Ultimately, each case must be decided on its
own facts. The factors to be considered are set out in Stapley v. Hejslet,
2006 BCCA 34 at para. 46:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s
stoicism (as a factor that should not, generally speaking, penalize the
plaintiff

[35]        
In this case the plaintiff’s injuries have had a negative effect on all
areas of her life. Before the accident she was a young woman with extraordinary
energy, drive, and enthusiasm. Since the accident she has become more guarded,
engaging in fewer activities and conserving her energy.

[36]        
Ms. Hawkins’ recreational activities have been markedly curtailed. There
is snow in Mackenzie from November to April. Before the accident Ms. Hawkins
was an avid cross-country skier. She now avoids that activity. In the summer
she enjoyed fishing trips with her parents but now needs help getting in and
out of the boat and finds the pounding of the boat aggravates her symptoms. She
needs help reeling in a fish, something she used to do easily.

[37]        
In high school, Ms. Hawkins worked as a skate patroller and had
good form as a skater. Her mother describes her now as looking “like a little
old lady” when she plays recreational hockey:  hunched over and skating poorly.

[38]        
Ms. Hawkins’ ability to do housekeeping has been diminished. She
said she takes pride in her house, and although she continues to care for her
home, the work is painful and can only be done in small stretches. Driving has
also been affected because Ms. Hawkins cannot consistently apply pressure
to the accelerator.

[39]        
Ms. Hawkins broke down and wept on the stand when describing the
need to move from being a full-time acute care nurse to a part-time one – a change she described as a “failure”.
She spoke convincingly of the guilt she feels when she has to refuse a request
to cover an extra shift so that she has enough energy for the other parts of
her life. She knows this is something she has to do, but it bothers her a great
deal because it means patients in her community are left without good care.

[40]        
The defendant questions how significant Ms. Hawkins’ injuries can
really be given that she completed her nursing degree and worked full-time for
17 months after the accident. I find that Ms. Hawkins managed studies and
work through sheer grit and determination, but had little left for any other
area of her life. As noted in Stapley, those who are stoics are not to
be penalized in the assessment of damages. To the contrary, I find that Ms. Hawkins
experienced more pain because she pushed herself to perform despite her
limitations and discomfort. While the move to part-time work has alleviated
some of her symptoms, they are likely to flare-up on activity and to affect her
to some degree throughout her life.

[41]        
I find $90,000 to be an appropriate award of non-pecuniary damages.

Past Wage Loss

[42]        
Ms. Hawkins did not have an established work pattern at the time of
the accident. She was a student who planned to accept occasional shifts as an LPN
while obtaining her degree, and then to work full-time in Mackenzie. Ms. Hawkins
said she would have followed this plan but for the accident. The standard of
proof for past hypothetical events is proof of a real and substantial
possibility that the events would have occurred: Smith v. Knudsen, 2004
BCCA 613 at paras. 27-29.

[43]        
The plaintiff claims damages amounting to $1,270 for 2009 because she
says she would have worked more than she actually did over the Christmas break
in 2009. Ms. Hawkins and her husband estimated that she worked three to
five shifts during this period, although they did not keep precise records. However,
there was no evidence of shifts being offered and refused. I find the plaintiff
has not established a real and substantial possibility that she would have
worked more shifts over the Christmas break but for the injuries in 2009.

[44]        
For 2010 the plaintiff claims $12,422. This figure is based on adjusting
the 2009 earnings to provide a typical full year’s earnings as an LPN and then
taking one-quarter of that income to reflect the plaintiff’s plan to work three
to five shifts each month during her schooling. The $12,422 figure represents
the difference between one quarter earnings of $28,000 and actual earnings of
$15,578.

[45]        
The plaintiff led evidence from a fellow student, Ms. Wooldridge,
who worked three to five shifts each month. She earned $25,000 in 2009 and 2010.
I find that her earnings are a reasonable basis for assessing what Ms. Hawkins
would have earned but for her injuries. I therefore find past wage loss for
2010 of $9,500, which is the difference between $25,000 and the sum actually earned

[46]        
For 2011 the plaintiff claims past wage loss of $7,463 based on working
three shifts per month on average. In 2011 Ms. Hawkins had transferred
from the college program to the University of Victoria. It was the first university
year in her academic history. She testified that the academic requirements were
different and included a lot of academic papers. Additionally, the practicum
for nursing at this level required her to work the shift hours of a full-time
regular nurse.

[47]        
Ms. Wooldridge, who was in the same bridging LPN program as Ms. Hawkins,
said she too planned to work several shifts per month as an LPN in 2011 but
stopped taking shifts after the first few months because of the academic
demands. I find it highly probable that Ms. Hawkins, who put school first,
would have taken a similar approach. I therefore do not find she has
established a loss for 2011.

[48]        
The plaintiff makes no claim for 2012 because for the first
three-and-a-half months she was working in a busy practicum and thereafter was
employed full-time.

[49]        
For 2013 the plaintiff claims past wage loss for the period of August
2013 to the date of trial. The plaintiff seeks $12,000 taking into account a
number of contingencies, but generally based on the difference between working
full-time and working part-time (0.62 of a full-time position). I find the
plaintiff has established a real and substantial possibility of a loss of this
magnitude for the same reasons set out in the next section dealing with loss of
future earning capacity. I therefore award that sum. The tax rate to be used in
calculating loss of past earnings is 15%.

Loss of Future Earning Capacity

[50]        
I turn now to the plaintiff’s most significant claim. Ms. Hawkins
submits that her injuries prevent her from working full-time. She says she
tried to work full-time for 17 months at a tremendous cost to her health and
family and social relationships. Ms. Hawkins submits that there is a
causal connection between her reduced work hours and her reduced symptoms. This
causal connection is supported by Dr. Filbey’s evidence and the functional
capacity evaluation conducted by Mr. Kyi. Counsel for Ms. Hawkins
argues that 0.62 represents Ms. Hawkins’ “realistic residual capacity”.

[51]        
The defendant disputes that Ms. Hawkins is working part-time
because of her injuries. The defendant argues that the plaintiff has chosen to
work part-time to take advantage of two significant benefits associated with
the part-time position she currently holds. Some background is required to
assess this argument.

[52]        
Nurses are employed in two types of positions:  “permanent” and “relief”.
Within these two categories hours may be part-time or full-time. In a permanent
position the nurse “owns the line”, i.e. her shifts are scheduled “into
infinity” and she can predict her schedule with certainty. A relief position
provides the same total hours and job security as a permanent position and has
full benefits, but shifts are scheduled by the clinical nurse leader and may
vary from month to month.

[53]        
Ms. Hawkins obtained her first permanent full-time position in
January 2013. However, that position was cancelled by a new contract the union
entered into in April 2013. Thereafter, Ms. Hawkins’ employment continued
as a full-time relief position.

[54]        
The defendant submits that when a permanent part-time job became
available in July 2013, Ms. Hawkins applied for it in order to regain the scheduling
certainty associated with a permanent position. Although it was part-time, the
defendant says Ms. Hawkins knew she could pick up extra shifts and
essentially turn it into a full-time position.

[55]        
Second, the defendant submits that Ms. Hawkins was simply choosing the
benefit of work-life balance when she moved to part-time work. The defendant
says Ms. Hawkins’ decision was driven by the lower level of enjoyment she
was deriving from life by having to work full-time, and argues that Ms. Hawkins
had the luxury of reducing her work hours because she and her husband, who is
the principal in the local high school, live in a low cost community, have
relatively high incomes, and are quite comfortable financially.

[56]        
I find that the plaintiff has established that she is working part-time
because of her injuries and not by preference. I earlier alluded to Ms. Hawkins’
testimony concerning her passionate desire to serve her community as a
full-time acute care nurse. If Ms. Hawkins really was interested in
working less and enjoying life more given the low cost of living in Mackenzie
and her relative financial security, she could have worked part-time from the
date of her graduation. In this regard it is telling that she did not apply for
the permanent part-time position when it was first created in April 2013
despite being urged to do so by her family. She applied only in August 2013, as
her ability to cope declined, when she finally and reluctantly admitted that
she could not continue as she had been.

[57]        
The defendant points out that the plaintiff’s sick days did not increase
as her 17 months of full-time work at the Mackenzie Hospital unfolded. While
that is true, I attribute it to Ms. Hawkins’ general stoicism and her sense
of responsibility to her patients. I accept that it was the avocational aspects
of her life that increasingly suffered, rather than her attendance at work.

[58]        
Ms. Hawkins is expecting her first child in November 2014. The
defendant argues this too supports a move to part-time as a matter of choice,
not necessity. I do not find that argument persuasive for the following
reasons.

[59]        
Ms. Hawkins has always been a hard worker. In high school, as soon
as she turned 16, she began working the graveyard shift every Friday at the
local mill, doing hard physical tasks. In the winter, Ms. Hawkins often
went straight to her shift at the mill after working at the skating rink as a
patroller. She also worked at the mill during summer vacation each year. Despite
being only 5 feet tall and at that time 100 pounds, she was described by her
husband, who also worked at the mill, as “working harder than some of the men”.
She also cleaned offices and residences as a teenager in order to earn
additional income.

[60]        
The description of Ms. Hawkins’ pre-accident energy and work ethic
is not consistent with someone who prefers leisure time. I accept Ms. Hawkins’
testimony that she always planned to be a full-time worker. Both Justin
Hawkins’ parents and Ms. Hawkins’ parents live in Mackenzie and are eager
to provide childcare. I find it highly probable that Ms. Hawkins would
have worked full-time throughout her career but for the accident, other than
during maternity leaves.

[61]        
In summary on this issue, I find Ms. Hawkins chose to work part-time
because her injuries make full-time work unsustainable.

[62]        
Dr. Winston opined that Ms. Hawkins could work full-time if
she worked 8‑hour shifts. However, 8-hour shifts are not available at the
Mackenzie Hospital. Mr. Kyi identified nursing positions that Ms. Hawkins
would be better suited to than acute care, such as public health nurse, or employment
in a doctor’s office. Again, however, there is no evidence that such jobs are
currently available in Mackenzie. While there is a full-time public health
nurse position and a part-time public health nurse position, they are not open
at this time. Nor is it clear that the plaintiff is suited to that type of work
as it is constituted in Mackenzie. The public health nurse must drive
significant distances to small outlying communities, a requirement that would
pose challenges for Ms. Hawkins.

[63]        
The plaintiff’s home is in Mackenzie where she and her husband and their
extended family live and work. I must assess Ms. Hawkins’ losses in the
context of her circumstances, and not on the basis of a hypothetical nurse in a
larger city with many options. Insofar as possible, the plaintiff should be put
in the position she would have been in but for her injuries: Lines v. W.
& D. Logging Co. Ltd., 2009 BCCA 106, at para. 185.

[64]        
The standard of proof in relation to future events is simple probability.
Hypothetical events are to be given weight according to their relative
likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.

[65]        
As stated in Perren v. Lalari, 2010 BCCA 140, there are two
possible bases for assessing loss of future earning capacity:  the earnings
approach and the capital asset approach. Where the loss is quantifiable in a
pecuniary way, the earnings approach will be appropriate, while the capital
asset approach will be appropriate where it is not: Perren at para. 32. In this case, the mathematical
earnings approach is appropriate because the sums payable for full-time and
part-time work are easily determined. The plaintiff has an established career
in a field where demand is strong and her position is secure.

[66]        
In assessing damages, the out-of-pocket loss to the plaintiff due to her
lost earning capacity must take into account contingencies, both negative and
positive: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.). Such
contingencies include the potential for improvement in health, opportunities
for advancement, loss of employment, and the usual chances and hazards of life.

[67]        
Mr. Wickson, a consulting economist, calculated the loss of future
earnings at $852,400 based on the difference between full and part-time
earnings. However, that base calculation must be adjusted for positive and
negative contingencies. In the case before me, the plaintiff might in future work
more than 0.62 of a full-time position. Ms. Hawkins testified that she
accepted on average one extra shift per month. This contingency would therefore
decrease the magnitude of the loss.

[68]        
The plaintiff might also become accustomed to better managing her
chronic pain and may be able to increase her regular hours of work.

[69]        
On the negative side, as Ms. Hawkins ages, Dr. Filbey predicts
that her condition may worsen, making it more difficult for her to continue in
her physical job, even on a part-time basis.

[70]        
Other contingencies include the possibility of a full-time public health
nursing position in Mackenzie and a move to a larger community where the
plaintiff could find a position more suitable for her.

[71]        
The plaintiff submits that, taking contingencies into account, damages
under this head in the amount of $500,000 to $750,000 would be appropriate. The
defendant submits that a sum of $25,000 is adequate compensation.

[72]        
The plaintiff is 30 years old. She has a career of 35 years ahead of her.
I accept that the plaintiff has lost capacity for work due to her injuries and
that she will suffer a significant out-of-pocket loss as a result. Damages are
not a precise calculation but an estimate of loss. I fix that loss at $525,000.

Failure to Mitigate

[73]        
The defendant argues the plaintiff has failed to mitigate her losses in
relation to non-pecuniary damages, past and future income loss, and cost of
future care by not seeking formal accommodation from her employer.

[74]        
The defendant called Ms. Doricic who is a team leader on the
disability management team which provides services to the Interior Health
Authority and the Northern Health Authority. She discussed at length the
sophisticated accommodation process available to all employees in the British
Columbia Nurses’ Union and confirmed that Ms. Hawkins had not requested an
accommodation.

[75]        
This proposition was not put to the plaintiff in cross-examination or to
her supervisor Ms. Barwise. Ms. Barwise testified that there were no
light duty jobs available at the Mackenzie Hospital and that it would not be
reasonable to ask another nurse to do the parts of the job that caused Ms. Hawkins
difficulty. She also confirmed there were no other Registered Nurse positions
available within their department.

[76]        
In contrast, Ms. Doricic did not know what accommodations could be
made in Mackenzie. She also acknowledged that keeping a worker in her position
part-time can be considered a successful accommodation.

[77]        
The defendant has the burden of proving the plaintiff could have avoided
all or a portion of her loss. This involves proving two elements:  first, that
the plaintiff acted unreasonably in not taking the step advocated by the
defendant; and second, the extent, if any, to which the plaintiff’s damages
would have been reduced had she taken that step: Chiu (Guardian ad litem
of) v. Chiu, 2002 BCCA 618 at para. 57. The test is a
subjective/objective one, which takes into account the knowledge possessed by
the plaintiff in considering the advocated step: Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144 at para. 56.

[78]        
Although in both Chui and Gregory the alleged failure to
mitigate involved recommended medical treatments, this test has also been
applied in cases where the defendant alleges the plaintiff ought to have
mitigated his or her loss by seeking formal employment accommodation or other
positions within his or her field: Gallina v. Honda Canada Finance Inc.,
2014 BCSC 974 at paras. 122-131; Sendher v. Wong, 2014 BCSC 140 at
paras.126-132, 139-145.

[79]        
In the present case, the defendant has not proved the second component
of the mitigation test. There is no evidence before me either that accommodation
was available or that if it were, it would have permitted Ms. Hawkins to
work more than 0.62 of a full-time position.

[80]        
In summary on this issue, the defendant has not established that the
plaintiff failed to mitigate her losses.

Cost of Future Care

[81]        
Madam Justice Dardi summarized the guiding principles concerning cost of
future care awards in Smith v. Moshrefzadeh, 2012 BCSC 1458 at para. 122:

[122]    The assessment of this
pecuniary claim is to be based on what is reasonably necessary on the medical
evidence to sustain and promote the plaintiff’s mental and physical health: Milina
at 78; Gigmac v. Insurance Corporation of British Columbia 2012 BCCA
351 at para. 30. In assessing what is reasonably necessary to promote the
plaintiff’s health, the court should consider whether the plaintiff would
likely use the items or services in the future: Penner v. Insurance
Corporation of British Columbia, 2011 BCCA 135 at paras. 12-14; Drodge
at para. 194.

[82]        
The defendant disputes the need for a custom foam cut-out seat cushion
and for an ObusForme back support on the basis that those items can be supplied
by Ms. Hawkins’ employer. Ms. Doricic confirmed that such assistance
is available from the Northern Health Authority. Accordingly I do not award the
cost of those items.

[83]        
The defendant also disputes the annual physical therapy and kinesiology
session on the basis that there is no physiotherapist available in Mackenzie
and no evidence Ms. Hawkins would use a personal trainer even if one is
available. Given that Ms. Hawkins has been diligently pursuing her
exercise program on her own for a number of years, I find the plaintiff has not
established that this is an appropriate cost of future care.

[84]        
I award the plaintiff the remaining costs claimed on the basis that they
are reasonably necessary to promote the plaintiff’s health, are available in
Mackenzie, and are likely to be services or items used by the plaintiff. These
costs are:

SPECIAL DAMAGES

[85]        
The parties largely agree on special damages. The plaintiff claims
$13,637.59; the defendant disputes $2,039.79 of this total.

[86]        
The defendant disputes the gym membership in Victoria on the basis that
a free gym membership was available to Ms. Hawkins at her college and
university. I agree with that submission. The claimed amount of $725.76 is
therefore not allowed.

[87]        
Some prescription receipts were not out-of-pocket expenses for Ms. Hawkins
and those too should be disallowed in the amount of $804.03.

[88]        
The defendant disputes the $510 claim for counselling with Dr. Boissevain
on the basis that Ms. Hawkins admitted “it was not a necessary treatment”.
That mischaracterizes Ms. Hawkins’ evidence:  she said that she did not
require more than three treatments. I would therefore allow the cost of those
treatments.

[89]        
In summary, Ms. Hawkins is entitled to special damages of
$12,107.80.

SUMMARY

[90]        
The plaintiff is entitled to damages as follows:

COSTS

[91]        
In the usual course, the plaintiff is entitled to her costs at scale B. If
the parties cannot agree on costs, they have leave to set a hearing before me
within three months of the date of these reasons for judgment.

The
Honourable Madam Justice L.A. Fenlon