IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150102

Docket: M094252

Registry:
Vancouver

Between:

Lenie Lim Luis

Plaintiff

And

Lori Marchiori and
Ram Mechanical Ltd.

Defendants

– and –

Docket: M120460

Registry:
Vancouver

Between:

Lenie Lim Luis

Plaintiff

And

Robert J.
Christian, Cheryl Lynn Christian and Geoffrey Lim Luis

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

Introduction

[1]            
Ms. Luis was injured in two motor vehicle accidents. The first was about
six and a half years ago on July 10, 2008, when she was 43 years old (“First
Accident”). The second was about three years later on July 9, 2011 (“Second
Accident”).

[2]            
The defendants admitted liability for both accidents. Counsel did not
seek an allocation of Ms. Luis’s damages between the two accidents. Ms. Luis’s
injuries were largely indivisible, in any event, with the exception of a
shoulder injury she sustained in the Second Accident. The assessment of Ms. Luis’s
damages proceeded to a trial occupying seven days of court time over eight
hearing days. The defence did not call any evidence.

[3]            
At the time of the First Accident, Ms. Luis was working full-time as a
customer service representative for Hutchings Canada Inc. (“Hutchings”), a
wholesaler of housewares. Ms. Luis was off work for about 20 months following
the First Accident. She started a gradual return to work in April of 2010 and returned
to full-time work of 40 hours per week in November 2010.

[4]            
Ms. Luis was working full-time at the time of the Second Accident. Ms.
Luis did not work for three weeks after the Second Accident. She then returned
to work, but only 32 hours a week, for about 20 months. She continued working
those hours until she had shoulder surgery in April 2013.

[5]            
Ms. Luis has not worked since April 2013. Initially she was on leave
from her job, but the job came to an end on March 31, 2014, when Hutchings
ceased operations.

[6]            
Ms. Luis claims that she has suffered both physically and emotionally as
a result of the accidents. She claims to suffer significant, disabling, and
chronic back pain and neck pain, and headaches. She claims to suffer anxiety,
depression, post-traumatic stress disorder (“PTSD”), and somatic disorder,
predominately pain, (formerly termed “chronic pain disorder”). Ms. Luis claims
that the First Accident caused a herniation of a disc in her lumbar spine and
the Second Accident caused a torn rotator cuff tendon in her right shoulder requiring
surgery.

[7]            
The main issues raised at trial were the following:

a)    What is the
extent of Ms. Luis’s symptoms and is her evidence credible and reliable, or
exaggerated?

b)    What is the
likelihood that Ms. Luis will be able to return to work in some capacity?

c)     What is the
significance of Ms. Luis’s medical problems which existed prior to the
accidents?

d)    Should the court
accept the diagnosis of PTSD?

e)    What is the
likelihood that Ms. Luis will pursue recommended treatments and take prescribed
medications?

f)      Should
the award be reduced on the basis that Ms. Luis failed to mitigate her damages?

[8]            
I will first address the issue of credibility, reliability, and the
extent of Ms. Luis’s symptoms. After setting out the facts, I will begin the
analysis of the other main issues. I will complete the analysis by addressing
each claim for damages.

Credibility and Reliability

[9]            
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is
often cited as a reminder of the approach the court must take in assessing
injuries which depend on subjective reports of pain. At 397-399 of the reasons
for judgment, Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries
normally resolve themselves within six months to a year or so. Yet every
physician knows some patients whose complaint continues for years, and some
apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at
fair and reasonable compensation. Previously decided cases are some help (but
not much, because obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), 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.

[10]        
There were objective findings about Ms. Luis’s injuries, being the disc
herniation and her torn right shoulder rotator cuff tendon. However, she makes
significant subjective complaints of pain, and so assessment of her credibility
and reliability is important.

[11]        
Ms. Luis grew up in the Philippines and immigrated to Canada when she
was about 23 years old. English is her second language.

[12]        
It appeared at trial that Ms. Luis struggled to use different English
tenses. She mostly spoke in the present tense, and sometimes did so when she
meant the past tense. As a result, Ms. Luis’s evidence was sometimes confusing
about when symptoms occurred.

[13]        
Defence counsel raised the following four issues and argued that they
suggested Ms. Luis’s evidence ought to be rejected:

a)    Ms. Luis’s
evidence on examination for discovery (“XFD”) and at trial conflicted regarding
a two-week trip she took to the Philippines after the First Accident.

b)    Ms. Luis’s
evidence at trial conflicted with her evidence at XFD about when she looked for
jobs.

c)     There was
a contradiction between Ms. Luis’s evidence at XFD and at trial about whether
she was on medication on the day of the Second Accident.

d)    There was a difference
between Ms. Luis’s evidence at trial and a letter from Hutchings about the
reason that Ms. Luis’s job duties changed between the time of the First
Accident and her return to work in April 2010.

[14]        
I will discuss each of these issues.

a)   
April 2009 trip to the Philippines

[15]        
At XFD, Ms. Luis was asked if she had taken any holidays since the
accidents, and she said no. She was then asked whether she had gone anywhere
out of town, and she said no.

[16]        
Ms. Luis’s family doctor, Dr. Shu, testified at trial before Ms. Luis
testified. Dr. Shu has been Ms. Luis’s family doctor since 1992, which was
about 16 years before the First Accident. Dr. Shu’s notes included a notation
on April 2, 2009, that Ms. Luis was going to the Philippines. Dr. Shu testified
that he understood that the trip was for a family funeral which Ms. Luis was
obliged to attend, and he told her to get up and move around while on the
flight.

[17]        
At trial, Ms. Luis testified that she went to the Philippines for two
weeks for this family matter. She went in early April 2009, which was about
nine months after the First Accident. Ms. Luis testified about discussing the
trip with Dr. Shu and that she suffered pain during the flight and tried to
avoid sitting down as much as possible.

[18]        
I accept that Ms. Luis had forgotten about this trip at the time of the
XFD. The line of questioning began by referring to holidays. Her memory of a
trip for a family funeral apparently was not triggered by a line of questioning
referring to holidays, even though the following question asked her about trips
generally.

b)   
Job Searches

[19]        
Ms. Luis’s evidence was essentially that, before the First Accident, she
was content in her job at Hutchings, but she was open to pursuing a better
opportunity if it became available to her. Hutchings did not have a pension
plan and she was particularly interested in finding a job that would provide
her with a pension. It appeared that, about a week before the trial started, Ms.
Luis found documents on her computer which related to job applications,
including applications in 2005, and this refreshed her memory and caused her to
give evidence at trial which conflicted with her evidence at XFD about looking
for jobs.

[20]        
Ms. Luis’s recently-disclosed job applications did not proceed to
interviews. Sending inquiry letters is consistent with Ms. Luis’s position that
she was open to pursuing better opportunities, but that she had forgotten that
she inquired about some positions a few years before the First Accident.

[21]        
I accept Ms. Luis’s explanation that she had forgotten about making the
job applications. They would not have been particularly memorable because they
did not proceed beyond an inquiry letter. I accept Ms. Luis’s evidence that,
before the First Accident, she was planning to continue working at Hutchings
until she retired, but she was open to moving to any better opportunities,
particularly if she could get a job with a pension.

c)   
Medications

[22]        
Ms. Luis testified at trial that on the day of the Second Accident, she
had taken Advil or Tylenol in the morning and the accident occurred in the
afternoon. She testified that she wished to correct her evidence from her XFD, when
she had testified that she was not on any medication at the time of the Second
Accident.

[23]        
I consider Ms. Luis to have made an innocent error about whether she was
on medication at the time of the Second Accident. The trial occurred about
three years after the Second Accident. Ms. Luis’s medication regimes have changed
several times over the period since the First Accident and some of the
medication she was on was prescribed for use as needed. In these circumstances,
it is not surprising that she might be confused about whether she took pain
medication in the morning on the day of the Second Accident.

d)   
Reason for Change in Job Duties

[24]        
The defence sought to rely on a letter from Hutchings about why Ms. Luis’s
job duties had changed. While the letter was admissible for proof of what Ms.
Luis was told about the reason for the change, it does not establish in fact
why Hutchings changed her duties.

[25]        
Hutchings wrote Ms. Luis a letter dated March 25, 2010, before she began
her graduated return to work. Hutchings wrote that a number of her duties had
been reallocated to others given her long absence. It also wrote that she would
no longer ordinarily enter orders because Hutchings was trying to streamline
operations.

[26]        
Ms. Luis’s evidence was that Hutchings had removed some of her duties
because her back symptoms made it difficult to perform them.

[27]        
The evidence is equivocal about why Ms. Luis’s job duties changed. Hutchings
may have been concerned to avoid writing anything that suggested it was failing
to accommodate Ms. Luis’s difficulties. Ms. Luis may have made assumptions
about why things were changing. Hutchings’s decision to reorganize may have
arisen because of its concerns about Ms. Luis’s abilities.

[28]        
The difference in the letter and Ms. Luis’s evidence was insignificant
and does not cause me to reject Ms. Luis’s evidence.

e)   
Ms. Luis’s Overall Credibility and Reliability

[29]        
Overall, I found Ms. Luis to be honest. Important parts of her evidence
were corroborated by other witnesses, including her husband, son, and the
vocational rehabilitation consultant, Mr. Carlin. Ms. Craig, a physiotherapist
who performed a functional capacity evaluation of Ms. Luis, found her pain
reports to be reliable and found that Ms. Luis made appropriate efforts to
complete the evaluation.

[30]        
Ms. Luis’s perception of her pain is more than what others may perceive
with similar physical changes. That does not suggest that Ms. Luis is exaggerating.
Instead, it is consistent with the diagnosis of somatic disorder, predominately
pain (formerly termed “chronic pain disorder”).

Facts

a)   
Before the First Accident (of July 10, 2008)

[31]        
As stated, Ms. Luis grew up in the Philippines. She obtained a
university degree there in business management. She married in 1985. Her
husband is a Canadian. She met him when they were both at university in the
Philippines. Ms. Luis immigrated to Canada in late 1987, when she was
about 23 years old.

[32]        
Ms. Luis’s children were born in 1988 and 1991. Apart from time off after
their births, and brief periods of unemployment, Ms. Luis was generally employed
in the period from 1987 until the accidents. She worked as a seamstress,
cashier, and human resources assistant. She briefly held two jobs, a day job
and an evening job, but she found that she did not have enough time for family
so she stopped working two jobs at once. Ms. Luis took a course to be an
administrative assistant, which she completed around 2000.

[33]        
Ms. Luis was in a motor vehicle accident in 1988 when she was pregnant. She
suffered lower back issues which fully resolved within six months.

[34]        
Dr. Shu referred Ms. Luis to an ear, nose and throat specialist in 1994
because she made complaints of dizziness. The specialist did not report any
pathology to Dr. Shu and this referral did not result in a diagnosis or
treatment.

[35]        
In the mid-1990’s, a doctor at Dr. Shu’s office prescribed
antidepressant medication to Ms. Luis. This was during the illness of the
grandmother who had primarily raised Ms. Luis. Ms. Luis took the medication
briefly.

[36]        
Ms. Luis started working for Hutchings in the year 2000 and continued
until after both accidents. She started at Hutchings as a receptionist and
received promotions. Ms. Luis testified that, before the accidents, she thought
she would retire at 65 or 70 years of age.

[37]        
Ms. Luis reported lower back pain and numbness in both legs to Dr. Shu
in September 2001. She only mentioned the numbness to him once.

[38]        
As stated, Ms. Luis sent out some letters seeking other jobs. She sent letters
in the period March 2005 through 2006, and again in 2008. She saw the jobs
advertised in newspapers or on government websites. However, her inquires did
not progress to any interviews.

[39]        
In February 2007, Ms. Luis suffered some lower back pain radiating into
her left leg. This occurred at a time when she was moving into a new home, but
it was not from heavy lifting. Dr. Shu prescribed a muscle relaxant and suggested
that Ms. Luis take over-the-counter medications. This problem resolved within
days.

[40]        
Ms. Luis had periodic anxiety and low mood before the First Accident.
From time to time Dr. Shu prescribed anti-anxiety medication to her.

[41]        
Ms. Luis suffered some urinary incontinence and nocturnia (urination at night
after waking) before the First Accident.

[42]        
Ms. Luis’s pre-accident symptoms of anxiety, dizziness, urinary/stress
incontinence, and lower back pain did not lead her to take time off work. She
did not see a psychiatrist or psychologist or counsellor before the First
Accident.

[43]        
Before the First Accident, Ms. Luis was energetic and independent. She
drove herself places by car. Ms. Luis’s husband did most of the family cooking,
although Ms. Luis loved baking. Ms. Luis’s home duties consisted of being primarily
responsible for the inside housework, including washing dishes, doing laundry and
vacuuming. She participated in the following activities:

a)    walking;

b)    jogging;

c)     baking;

d)    cooking;

e)    picnicking;

f)      attending
concerts;

g)    attending church;

h)    watching movies;

i)       shopping;

j)      taking
trips to Washington state;

k)     spending time
with family; and

l)       hosting
events roughly monthly.

[44]        
By the time of the First Accident, Hutchings had promoted Ms. Luis to
the position of customer service representative. There were five other office
employees and four warehouse employees. There was no real prospect of
advancement for Ms. Luis at Hutchings. The vast majority of her time was spent
sitting and working on a computer in the office. She was also required from time
to time to go to the warehouse. The office was in a mezzanine area in a
warehouse building, and going to the warehouse involved walking down about
thirty stairs.

[45]        
At the time of the First Accident, Ms. Luis was working 40 hours a week
at Hutchings. Her base salary was $38,000, with a possible bonus based on Hutchings’s
productivity. Ms. Luis liked her job. Her boss considered her to be a great
worker who was efficient, got along well with others, and had a good attendance
record.

[46]        
At the time of the First Accident, Ms. Luis was a happy individual who
had a good relationship with her husband and children. She had other relatives
in the area and numerous friends.

b)   
The First Accident (on July 10, 2008)

[47]        
Ms. Luis was 43 years old at the time of the First Accident. She was driving
her car to merge onto Lougheed Highway when her car was rear-ended. She
immediately felt nervous and dizzy. She lived nearby and drove home. She
started experiencing a headache. She took a Tylenol and lay down, but had
trouble sleeping.

[48]        
The next day, Ms. Luis saw Dr. Shu. He prescribed Tylenol 3 and a muscle
relaxant. Ms. Luis did not return to work for about 20 months. Ms. Luis went on
a two-week waiting period for employment insurance benefits. She used vacation
time and was fully paid for those two weeks. She received employment insurance
benefits for 15 weeks. After that, she received 80% of her salary in insurance
benefits from The Equitable Life Insurance Company of Canada (“Equitable Life”).
The Equitable Life policy provides that Equitable Life is entitled to recover
benefits paid to Ms. Luis from a third party.

[49]        
Ms. Luis suffered pain in her neck, shoulder, and lower back radiating
to her left leg. She was dizzy, had headaches, nausea, and imbalance, and
suffered sleeplessness. She had nightmares of the accident during the two weeks
after the First Accident.

[50]        
Ms. Luis had an x-ray of her lumbar spine on August 13, 2008, about a
month after the First Accident. The x-ray showed the disc herniation and
degenerative disc disease in her lumbar spine at all levels. The First Accident
either caused the disc herniation or caused it to become symptomatic.

[51]        
Ms. Luis essentially stopped performing household activities. She
stopped vacuuming, cleaning floors and windows, and baking. She dramatically
reduced her driving; she drove only short distances, not more than once or
twice a month. She was irritable, anxious, and moody. She gained weight and
avoided intimacy with her husband.

[52]        
Ms. Luis took treatments recommended by Dr. Shu. They included the
following:

a)    physiotherapy;

b)    massage therapy;

c)     acupuncture;

d)    spinal
decompression; and

e)    medication.

[53]        
In May 2009, Dr. Shu referred Ms. Luis to Dr. McKenzie, a chiropractor,
for spinal decompression. Ms. Luis went two or three times a week for about a
year. She felt that initially it reduced the pain temporarily, and that over
time, it helped her lower back and left leg.

[54]        
Ms. Luis made more complaints to Dr. Shu of dizziness following the
accident than she had made before it.

[55]        
During the period Ms. Luis was off work after the First Accident,
Hutchings called her most days to get information about the needs of specific
customers.

[56]        
As stated, Ms. Luis started a graduated return to work in April 2010,
after about 20 months off work. She discussed it with Dr. Shu and Hutchings. Her
hours increased every two months for the following six months. She started
working four hours a day, three times a week, then she worked five hours a day,
three times a week, and then five hours a day, four times a week.

[57]        
Ms. Luis had difficulty with the stairs from the office to the
warehouse. Initially she went up to the office once per day, upon arriving at
work, and down to the warehouse once per day, on leaving for home. She did not
do much of the order entry, and testified this was because her back was so sore
that she could not sit down for too long.

[58]        
Ms. Luis modified her work environment by bringing her own chair and a
foot rest, as well as by using hot and cold packs. Despite this, she sometimes
cried at the office from pain.

[59]        
By November 2010, about 2⅓ years after the First Accident, Ms. Luis
felt she was 75% improved. Counsel agreed that Ms. Luis resumed working 40
hours per week and that the evidence given by Hutchings’s controller at trial
was wrong about how many hours she worked at that time. Ms. Luis understood
that her benefits from Equitable Life were going to be cut off on November 7,
2010, so she had returned to work full-time just before she expected the
benefits to stop.

[60]        
Ms. Luis’s work continued to be light duties. She found she had to stand
up after three to four hours of sitting, but she was much improved. She started
doing some household activities, including baking, cooking, and light cleaning such
as laundry and dishwashing. She was able to groom herself and look after her
own personal care. In terms of exercise, she used her treadmill and elliptical
machine, walked, and jogged short distances. However, she remained anxious
about driving and she had difficulty with intimate relations with her husband.
She felt that she was moody and short-tempered. She was still taking Tylenol 3
and a number of other medications.

[61]        
Ms. Luis sent out letters inquiring about alternative jobs in February,
March and June 2011.

c)   
The Second Accident (of July 9, 2011)

[62]        
Ms. Luis was aged 46 at the time of the Second Accident. Her son was
driving and she was a front seat passenger. She was looking down and eating
when she heard a loud bang. An oncoming vehicle apparently drove through a stop
sign and turned left in front of the car she was in and the vehicles collided.

[63]        
There was smoke and Ms. Luis’s son was screaming that she had to get out
of the car. Ms. Luis had difficulty breathing, pain in her chest, right shoulder,
neck and back, and she felt dizzy. She was not able to get out of the car on
her own so her son helped her get out. Ms. Luis was taken by ambulance and stretcher
to Burnaby General Hospital and stayed there about four hours.

[64]        
Although it was not investigated until 2012 (after Dr. Le Nobel, a
specialist in physical medicine and rehabilitation medicine also known as a
physiatrist, recommended an MRI), Ms. Luis suffered a torn rotator cuff in her
right shoulder in the Second Accident. It was a nearly full thickness tear of
the tendon.

[65]        
Since the Second Accident, Ms. Luis has suffered from tinnitus. It is
worse in her right ear. It is so loud that she cannot sleep without putting on
music and cannot sleep on her right side.

[66]        
Ms. Luis became even more anxious about driving after the Second
Accident. She has not driven a car since the Second Accident. She has relied on
her family members and friends to drive her to appointments. For a time, Ms.
Luis’s son arranged his work schedule around Ms. Luis’s appointments.

[67]        
Ms. Luis was off work for three weeks following the Second Accident. She
used vacation time so she was fully paid during that absence.

[68]        
Ms. Luis returned to work because she needed to earn a living for her
family. It was a hard decision for her because she was in a great deal of pain.

[69]        
When Ms. Luis returned to work after the Second Accident, she was
working only 32 hours a week. Dr. Shu and her employer were involved in working
out the number of hours she worked. Hutchings reduced her workload.

[70]        
Ms. Luis continued to suffer significant pain and discomfort at work, in
particular, when using a computer mouse and typing. Ms. Luis is right-hand
dominant. Because of the right shoulder pain and weakness, she has little use
of her right arm. She tried using her left hand, but found that very slow.

[71]        
Ms. Luis’s work area was modified by the lowering of her computer
keyboard. She used hot pads for her neck. Hutchings moved a microwave oven close
to her desk so that she could heat pads for her neck and shoulder. Despite
these accommodations, Ms. Luis still felt dizzy and exhausted at the end of a
work day and suffered from headaches and pain.

[72]        
Ms. Luis took physiotherapy and massage treatments. She also had steroid
injections into her right shoulder and took medications. Despite this, she was still
in pain. The pain was so bad that she did not think she could continue to work.

[73]        
Ms. Luis had difficulty with light household chores, and personal care
like dressing and fixing her hair.

[74]        
Ms. Luis saw Dr. Le Nobel, a physiatrist, for assessment on March 9, 2012.

[75]        
In April 2012, Dr. Shu referred Ms. Luis to two psychiatrists, Drs.
Ancill and Liang. Dr. Shu estimated that he treats 99% of cases of anxiety and
depression himself, rather than referring a patient to a psychiatrist. Dr. Shu
also discontinued his prescription for Ativan and added Clorazepam.

[76]        
Ms. Luis saw Dr. Ancill on April 3, 2012, although it was for an
examination for a medical-legal report for this trial.

[77]        
Dr. Shu made a second referral for Ms. Luis to Dr. Liang. Ms. Luis told
him that Dr. Liang’s office was too far from her home for her to attend.

[78]        
Dr. Ancill’s office made an appointment for Ms. Luis for August 22, 2012.
However, Ms. Luis did not see Dr. Ancill for treatment, seeing him only for the
purposes of his medical-legal opinion.

[79]        
Ms. Luis saw Dr. Ferry, a psychologist, for two or three sessions
starting in June 2012. Her lawyer referred her to Dr. Ferry. Ms. Luis found the
sessions helpful, but did not continue because she could not afford it.

[80]        
Dr. Shu referred Ms. Luis to a local mental health team. Dr. Shu
understood that the team concluded around June 2012 that Ms. Luis did not need
help from it because she was seeing a psychologist.

[81]        
Hutchings advised Ms. Luis in February 2013 that her job was terminated.
Ms. Luis was very upset and worried about her family’s financial future.
Hutchings paid Ms. Luis salary continuance or severance payments for five
months. On my calculations, that was the amount of about $14,000 net of tax.

[82]        
Despite the various shoulder treatments, Ms. Luis continued to have
significant pain in her right shoulder. After the other therapies failed to
give her relief, surgery was recommended. Ms. Luis was continuing to have
difficulty with personal care, dressing, and household chores like cleaning.

[83]        
As stated, Ms. Luis had right shoulder surgery in April 2013. This was a
painful procedure. It took two or three pain-filled months for her to recover
from the surgery. During that time she required assistance to dress and bathe.

[84]        
The shoulder surgery resulted in a slight reduction of Ms. Luis pain,
but does not enable her to use her right hand much more. She still suffers
significant weakness in her right hand. She continues to use her left hand when
she can. She has not returned to work or sought new employment since the
surgery.

[85]        
Starting around late April 2013, Ms. Luis received paid assistance. Initially,
she had a care aid four hours a day and a cleaner twice a week.

[86]        
By June 2013, Ms. Luis was receiving care from the care aid of only one
hour per day.

[87]        
Ms. Luis has various aids and accommodations in her home. She has a
wall-hung hair dryer, a chair in the shower, a bidet, a back washer, a
reclining chair, and an exercise pulley system.

[88]        
Ms. Luis first met with an occupational therapist named “Tanya” in June
2013. Tanya recommended a program to Ms. Luis. Ms. Luis initially declined to
participate because she was in so much pain and did not want someone to come to
her home, but after giving the matter some thought, she decided to try it. Tanya
suggested that Ms. Luis go to a pain clinic and a psychiatrist. Tanya met with
Dr. Shu and Ms. Luis together to discuss that. At the time, Dr. Shu did not
agree to refer Ms. Luis to a pain clinic. Tanya also assisted Ms. Luis with
arranging appointments and medications. Ms. Luis was provided with funding for Tanya’s
work.

[89]        
Tanya referred Ms. Luis to Dr. Browning, a psychologist. Ms. Luis
started seeing Dr. Browning around August 2013. Ms. Luis was not required to
pay for the sessions. Initially, Ms. Luis saw Dr. Browning twice weekly. Later,
she saw him weekly, then once every two weeks. He taught her strategies to deal
with being in a car and with anxiety and depression. She told him that she had
thought about suicide.

[90]        
Dr. Shu prescribed antidepressent medication to Ms. Luis. In December
2013, he increased the dosage of Remerol from 15 mg daily to 30 mg daily.

[91]        
Ms. Luis saw Dr. Ancill for a second time on January 15, 2014.

[92]        
Ms. Luis saw Dr. Le Nobel for a second time on February 13, 2014.

[93]        
In early March 2014, Dr. Shu suggested to Ms. Luis that she attend a
pain clinic. He told her that the pain clinic would likely want her to take
stronger medications and she said she did not want to take medications stronger
than Tylenol 3. She testified that she has suffered from stomach upset and
bloody stools when she takes too many medications.

[94]        
Dr. Shu understood that Ms. Luis refused to attend a pain clinic.

[95]        
Dr. Browning told Ms. Luis about a Filipino psychiatrist named Dr. Paragas.
Ms. Luis asked Dr. Shu for a referral to him. Shortly before the trial, Dr. Shu
made that referral. Ms. Luis understands that Dr. Paragas can speak her native
language. She expects that her husband can drive her to Dr. Paragas’s office
for appointments.

[96]        
Ms. Luis found her sessions with Dr. Browning to be helpful. The funding
ended shortly before the trial, so she did not expect to see him again.

d)   
At the Time of Trial

[97]        
Ms. Luis lives in Port Coquitlam with her husband and her son and
daughter. Both of her children are in their early twenties. Ms. Luis is often
irritable, and as a result, her relationship with her husband and children is
strained. She worries about how she can manage if her children move into their
own homes.

[98]        
Ms. Luis is not working. Ms. Luis has gained about 15 pounds. She has
difficulty managing her personal care. She sees extended family members as
little as once per year, when she had seen them roughly monthly prior to the
accidents.

[99]        
Ms. Luis uses a number of medications: Mirtazapine for depression; Tylenol
3 for headache and pain; Gabapentin and Cyclobenzaprine for inflammation or
pain; Attempta for tinnitus, and Betahistine for her stomach pain and irritable
bowel. She is willing to continue taking the medications and believes that the
antidepressent is helping her. She testified that whether she will take a
medication if recommended by a psychiatrist will depend on how strong it is and
whether it causes her to suffer an upset stomach and bloody stools.

[100]     Ms. Luis
is proficient in her home exercise program. She uses the home pulley system for
exercise. She also walks short distances with a cane and performs stretching
exercises. She uses a cane only when her back pain flares after long sitting or
long walking.

[101]     Ms. Luis
can make a simple meal, such as soup, by using her left hand. She can also
brush her hair independently.

[102]     Ms. Luis
is presently receiving one hour of assistance from a care aid each weekday. The
care aid assists Ms. Luis with her hair and does light housekeeping.

[103]     In
addition, Ms. Luis is receiving assistance twice a week for housecleaning.

[104]     Ms. Luis
testified that she was willing to see a psychiatrist if she has the funding.
She did not understand that sessions with a psychiatrist would be free for her
under the medical services program. Ms. Luis testified that she will try the
chronic pain clinic and would not close the door to any treatment.

[105]     Ms. Luis
continues to take antidepressants. She continues to be in pain and is usually
exhausted. She remains sad and anxious, has a depressed mood, and has trouble
sleeping. She has not driven a car since the Second Accident. She occasionally
rides as a passenger in a taxi or a car, but she is anxious and tries to limit
those trips. She does not use public transit because of her dizziness and
stress incontinence. She seldom goes out of the house for family events.

e)   
Expert Evidence

[106]     Ms. Luis’s
counsel called the following witnesses who were accepted as qualified to
provide expert evidence:

i)       Dr.
Ancill, psychiatrist;

ii)     Dr. Le
Nobel, specialist in physical medicine and rehabilitation (often referred to as
a “physiatrist”);

iii)    Dr. Gouws,
general practitioner physician with a special interest in occupational health;

iv)   Ms. Craig,
physiotherapist and functional capacity evaluator;

v)     Mr.
Carlin, vocational rehabilitation expert;

vi)   Ms. Berry, occupation
therapist and life care planner; and

vii)  Mr. Turnbull, economist.

[107]     Ms. Luis
also relied on the report of Dr. Martin, radiologist, regarding the MRI of Ms.
Luis’s right shoulder which showed a near complete full thickness tear of the
supraspinatus tendon.

i)     
Dr. Ancill, Psychiatrist

[108]     As stated,
Dr. Ancill assessed Ms. Luis twice, first on April 3, 2012 and next on January
15, 2014. Both assessments were after both accidents, but the first report was before
Ms. Luis’s shoulder surgery in April 2013.

[109]     Dr. Ancill
found that the accidents caused Ms. Luis moderate to severe major depression, PTSD,
and a chronic pain disorder associated with psychological factors and her
general medical condition. In his opinion, the Second Accident caused PTSD.

[110]     At the
time of his first report, Dr. Ancill’s prognosis for depression and PTSD was
guarded. His prognosis for chronic pain disorder was poor.

[111]     At the
time of his second report, Dr. Ancill’s prognosis was downgraded to poor for not
only chronic pain disorder but also for depression and PTSD. Dr. Ancill
recommended that Ms. Luis obtain both psychiatric treatment and psychological
treatment.

ii)    
Dr. Le Nobel, Physiatrist

[112]     Dr. Le
Nobel also assessed Ms. Luis on two occasions. As with Dr. Ancill, both
assessments followed both accidents, but the first assessment was prior to the
April 2013 shoulder surgery. As stated, Dr. Le Nobel’s first assessment was on
March 9, 2012, and his second assessment was on February 13, 2014.

[113]     In his
first report, Dr. Le Nobel noted the importance of resolving Ms. Luis’s right
shoulder issue before active rehabilitation. Dr. Le Nobel suggested an urgent MRI
arthrogram assessment of Ms. Luis’s right shoulder, which ultimately led to the
proper diagnosis of the rotator cuff injury. In Dr. Le Nobel’s opinion, such an
injury would be very painful.

[114]     In his
first report, Dr. Le Nobel noted that Ms. Luis’s pain, sleep interference, and psychological
distress reinforced one another. He noted the importance of addressing the
psychological and physical pain issues concurrently. He recommended review by a
psychiatrist for assessment of the benefits of medications, counselling, and
other treatments for Ms. Luis’s psychological condition. Dr. Le Nobel recommended
that, once Ms. Luis’s shoulder issue was addressed, she participate in a
multidisciplinary active rehabilitation regime involving guidance from a
physiotherapist and kinesiologist. Because he anticipated that Ms. Luis would
suffer increased pain in such a program, Dr. Le Nobel recommended that she have
access to pain modulating medication and other therapies, with concurrent
treatment for sleep difficulties, mood disorder, and driving anxiety.

[115]     In his
first report, Dr. Le Nobel diagnosed Ms. Luis with the following:

a)    chronic pain;

b)    myofascial pain;

c)     cervicogenic
headaches;

d)    symptomatic
cervical spondylosis restricting range of motion of the cervical spine;

e)    mechanical low
back pain;

f)      right
shoulder pain, tenderness and restriction of movement, rotator cuff tendentious
and adhesive capsulitis;

g)    calcification in
the right shoulder connective tissues and calcific tendentious;

h)    interference
with sleep; and

i)       anxiety
and depression.

[116]     In his first
report, Dr. Le Nobel concluded that Ms. Luis’s prognosis was guarded.

[117]     In his second
report, Dr. Le Nobel’s diagnoses remained generally the same. Ms. Luis reported
to him that she thought her shoulder had improved after the surgery, but he
found a significant reduction in her range of motion. Dr. Le Nobel recommended
further investigations to assess radiating abnormal sensory symptoms to Ms.
Luis’s right upper arm, which indicated irritation of the nerves supplying her
upper right arm. He also noted reports of tinnitus, dizziness, and problems
with urinary control and nocturia. In Dr. Le Nobel’s opinion, Ms. Luis’s urinary
control and nocturia were exacerbated as a result of the accidents.

[118]     In his second
report, Dr. Le Nobel downgraded his prognosis to poor. In his opinion, her
prognosis is for ongoing pain and ongoing limitations with respect to her work,
vocational pursuits, and recreational pursuits. He recommended a
multidisciplinary exercise-based rehabilitation program over a period of 14 to
20 months, concurrent with treatment for psychological difficulties.

[119]     Dr. Le
Nobel testified that improvement to the restriction and pain in Ms. Luis’s
right shoulder was unlikely. He testified that she would be subject to
increased pain in an active multi-disciplinary program, and he hoped that pain
modulating therapies like cortisone injections, heat, and stretching would be
part of that program. He testified that he did not see a way to resolve the
pain and the restriction in her right shoulder range of motion and get her back
to work.

[120]     In Dr. Le
Nobel’s opinion, the accidents were the cause of Ms. Luis’s present lower back
symptoms. He testified that it was possible that she would have suffered
symptoms from degenerated disc disease in her lumbar spine even if she had not
been in the accidents. However, her lower back was not significantly symptomatic
before the accidents.

iii)  
Dr. Gouws, Physician with Special Interest in Occupational Health

[121]     In Dr.
Gouws’ opinion, Ms. Luis developed a chronic pain condition with chronic myofascial
neck, upper back and upper shoulder pain; cervicogenic headaches with
associated facial pain (pericranial allodynia); mechanical low back pain with
possible discogenic features; ongoing right rotator cuff dysfunction with
significantly reduced range of motion and reduced strength; mood disturbances
with low mood, anxiety and post traumatic symptoms; and ongoing tinnitus.

[122]     In Dr.
Gouws’s opinion, Ms. Luis’s prognosis for improvement in her symptoms and
function is guarded, meaning that improvement is not probable. In Dr. Gouws’s
opinion, it is unlikely Ms. Luis will recover to a point where she would be
capable of returning to full-time competitive employment.

[123]     In Dr.
Gouws’s opinion, Ms. Luis needs a multi-disciplinary approach. He recommended
addressing Ms. Luis’s chronic pain condition through psychiatric intervention
and counselling and active physical rehabilitation. He also recommended
household assistance.

iv)  
Ms. Craig, Physiotherapist and Functional Capacity Evaluator

[124]     Ms. Craig
assessed Ms. Luis on January 6, 2014, which was after the accidents and the
shoulder surgery. The assessment lasted about six and one-half hours with a
lunch break of about two hours.

[125]     As stated,
Ms. Craig found Ms. Luis’s pain reports to be reliable and to match the pain
behaviour Ms. Craig observed. Ms. Craig concluded that Ms. Luis did not give
either her very best effort or low effort. Ms. Luis declined to perform some
tests on the basis of pain. Ms. Luis’s right hand grip measured so low that the
related testing was not valid.

[126]     Ms. Craig
found that Ms. Luis did not meet the physical demands of a general office
worker. Ms. Craig found that pain was Ms. Luis’s main limiting factor. Ms. Craig
did not feel that Ms. Luis had reached her maximum physical rehabilitation. Ms.
Craig did not believe that Ms. Luis could return to work even in a part-time
capacity without physical improvement.

[127]     Ms. Craig
recommended an individualized rehabilitation program guided by a physiotherapist.
She recommended assistance for household cleaning. She noted that Ms. Luis
would have to pace herself to avoid aggravating her symptoms. Ms. Craig
anticipated that Ms. Luis would need additional assistance for heavier and
seasonal cleaning.

[128]     In Ms.
Craig’s opinion, Ms. Luis was physically capable of work in a part-time
capacity of two to four hours per day with restrictions and accommodations and
an optimal ergonomic setup. However, Ms. Craig did not take into account Ms. Luis’s
emotional and psychological problems.

v)   
Mr. Carlin, Vocational Rehabilitation

[129]     Mr. Carlin
assessed Ms. Luis on two occasions. Both of them were after the accidents and
the first assessment was before the shoulder surgery. The dates of the
assessments were May 3, 2012, and January 29, 2014.

[130]     In his
second report, Mr. Carlin concluded that Ms. Luis was not competitively
employable in her pre-accident occupation or, in fact, in any occupation in the
labour market. He was doubtful that she would ever be competitive in the labour
market. He testified he could not see any employer being willing to ignore her
physical and psychological presentation.

[131]     Mr.
Carlin’s testing of Ms. Luis demonstrated that she did poorly in math and English.
She did poorly on a test for malingering. Mr. Carlin speculated that she was
having difficulty with concentration, although she may have been distracted by
a need to leave for the day or could have been trying to perform poorly.

[132]     Mr.
Carlin’s assessment of Ms. Luis’s vocational capacity was based on a range of
factors including her manner of presentation. I accept Mr. Carlin’s opinion
that Ms. Luis is unlikely to be competitively employable even if she makes some
improvement. I accept his opinion that Ms. Luis would likely only find work
with a compassionate employer who wanted to assist her and who was not seeking
the best available worker.

vi)  
Ms. Berry, Occupational Therapist

[133]     Ms. Berry
assessed Ms. Luis twice. Both assessments were after both accidents and the
second assessment was after the shoulder surgery. The dates of the assessments
were June 13, 2012 and January 23, 2014. Ms. Berry prepared one report dated
March 12, 2014. Ms. Berry made recommendations as an occupational therapist and
set out the costs of the recommendations she made and of recommendations made
by others.

[134]     In Ms.
Berry’s opinion, Ms. Luis can likely do more for herself than she is doing
presently. For example, in Ms. Berry’s opinion, Ms. Luis should be able to shower
herself and apply lotion, and the barriers appear to be pain and her emotional
functioning. In Ms. Berry’s opinion, the assistance Ms. Luis requires could be
provided by a care aid and does not require the services of a licensed
practical nurse.

vii)
 Mr. Turnbull, Economist

[135]     Mr.
Turnbull provided tables setting out multipliers to determine present values
using the prescribed discount rates.

Analysis

a)   
Issues

1)   
Likelihood that Ms. Luis will Return to Work

[136]     It is
unlikely that Ms. Luis will return to work. I accept Mr. Carlin’s opinion that
Ms. Luis is not presently competitively employable and that it is unlikely she
will ever be competitively employable. Mr. Carlin’s opinion is consistent with
Dr. Gouws’s opinion and the overall evidence.

[137]     None of
the experts anticipated enough improvement in Ms. Luis’s condition that she is
likely to return to work.

[138]     The
defence argues that Ms. Luis might recover to the point she could return to
work on a part-time basis.

[139]     This is
unlikely. Ms. Luis’s issues are significant enough that it is unlikely an
employer would choose to hire her. As suggested by Mr. Carlin, it is only an
employer which is not seeking the best available worker which would be likely
to employ Ms. Luis part-time. There is no reasonable prospect of such an
employer.

2)   
Significance of Pre-Existing Issues

[140]     Ms. Luis
suffered transient lower back problems in 1988 and in February of 2007. These
problems resolved. While it is possible Ms. Luis had pre-existing degenerative
disc disease, if she did, it was asymptomatic before the accidents.

[141]     Ms. Luis’s
prior lower back problems are insignificant in assessing her damages from the
accidents.

[142]     Ms. Luis’s
low mood when her grandmother was ill in the mid-1990s, which resulted in Dr.
Shu’s colleague prescribing a brief course of antidepressants, is not
significant for assessing Ms. Luis’s damages from the accidents. Ms. Luis was obviously
close to that grandmother and a brief period of difficulty is not surprising.

[143]     Ms. Luis
had some anxiety and obtained anxiety medications from Dr. Shu prior to the
accidents. This did not impact her work and was not pursued with other
treatments. The evidence did not clarify whether this pre-existing anxiety made
her more susceptible to suffering emotional issues following the accidents. In
any event, there was no evidence suggesting that Ms. Luis’s pre-existing
anxiety issues would have led her to suffer the severe symptoms she has now, in
the absence of the accidents.

[144]     Ms. Luis
had complaints of dizziness prior to the accidents and complaints of tinnitus
following the accidents. Ms. Luis called the evidence of a number of experts, but
did not provide evidence from an urologist or an ear, nose and throat
specialist. There was no evidence suggesting that Ms. Luis had suffered
tinnitus prior to the accidents or was likely to have suffered it in the
absence of the accidents. Based on the timing of the onset, I accept that the Second
Accident caused Ms. Luis’s tinnitus. However, I am not able to determine
whether Ms. Luis’s present symptoms of dizziness were caused by the accidents
and, therefore, do not take them into account in assessing her damages.

[145]     Ms. Luis
also complained of stress incontinence prior to the accidents. As stated, in Dr.
Le Nobel’s opinion, her problems with urinary control and nocturia were
exacerbated as a result of the accidents. I accept that opinion.

3)   
Accuracy of PTSD Diagnosis

[146]     Dr. Ancill
is a psychiatrist who has been qualified as such in Canada for about 27 years.
He qualified in the UK about 35 years ago. He has a special interest in
post-traumatic psychiatry. Many of his patients have brain injuries and often
also suffer depression and chronic pain.

[147]     Dr. Ancill
diagnosed Ms. Luis with PTSD following the Second Accident. However, neither
his notes nor his reports show that he discussed with her whether she felt she
had suffered a life-threatening event.

[148]     The
Diagnostic and Statistical Manual (DSM) describes criteria for psychiatric diagnoses.
It gives guidance to psychiatrists, but ultimately, they must rely on their
clinical judgment. One of the DSM criteria for PTSD is that the person has been
exposed to a traumatic event that involved death or threatened death or serious
injuries to that person or others.

[149]     Dr. Ancill
did not make any note of discussing with Ms. Luis whether she thought her life
or that of her son was threatened in the Second Accident. Dr. Ancill observed
that Ms. Luis was quite distressed when talking about the Second Accident. He
considered her symptoms, which included avoiding driving a car following the Second
Accident.

[150]     It was Dr.
Ancill’s clinical judgment that Ms. Luis’s reaction to the Second Accident was such
that, in his opinion, she is suffering from PTSD.

[151]     Ms. Luis’s
counsel, Mr. Collette, argues that the facts that Ms. Luis saw smoke immediately
following the Second Accident, that her son told her she had to get out of the
car and subsequently had to help her to get out, and that she was removed by
ambulance from the accident scene, could all be significant events to make Ms.
Luis think she or her son or both of them were in a life-threatening situation.

[152]     Initially I
was concerned about the accuracy of the PTSD diagnosis because of the absence
of evidence that Dr. Ancill explored with Ms. Luis whether she found the Second
Accident to be a life-threatening situation.

[153]     However, I
found Dr. Ancill’s evidence to be consistent and thoughtful. Dr. Ancill
appeared to find the other factors so strongly indicative of PTSD that he did
not make any note of discussing with Ms. Luis whether she thought the Second Accident
was life-threatening to either her or her son. The PTSD diagnosis is primarily
an exercise of Dr. Ancill’s clinical judgment.

[154]     On the
balance of probabilities, I accept Dr. Ancill’s diagnosis of PTSD arising from
the Second Accident.

4)   
Likelihood that Ms. Luis will Pursue Treatments and Take Recommended Medications

[155]     Dr. Shu
testified that he found Ms. Luis to be a compliant patient. He testified that
she told him that she did not like to take strong medications because she was
worried about becoming addicted. He testified that she said she wanted to avoid
narcotics or tranquillizers and Dr. Shu tended to agree.

[156]     Dr. Shu
referred Ms. Luis to two psychiatrists in May 2012, both of which had waiting
lists for appointments. One was Dr. Ancill, who had been retained by Ms. Luis’s
legal counsel to provide a medical-legal opinion. Dr. Ancill’s office made an
appointment for Ms. Luis for August 22, 2012, but she did not attend.

[157]     Dr. Ancill
first saw Ms. Luis on April 3, 2012. Ms. Luis told Dr. Shu that she had seen
Dr. Ancill and that Dr. Ancill had not prescribed drugs for her. Dr. Shu
appeared to have expected Dr. Ancill to prescribe medication for Ms. Luis, if
appropriate, even though Dr. Ancill was only providing a medical-legal opinion.

[158]     Ms. Luis
was initially reluctant to work with Tanya, the occupational therapist, but
ultimately she did work with her.

[159]     I am
concerned that Ms. Luis did not fully understand when Dr. Shu was recommending
treatment to her. I found Dr. Shu to be somewhat indirect in his manner of
speech. I consider it most likely that Ms. Luis misunderstood Dr. Shu from time
to time about whether he was recommending treatment to her or simply discussing
ideas with her.

[160]     It was
clear at trial that Ms. Luis was interested in seeing Dr. Paragas. I
accept her evidence that she was reluctant to travel long distances because of
her stress incontinence and her concern about being unable to find a washroom
when she needs it. I accept that this is what troubled her about travelling to
see Dr. Liang.

[161]     It became
clear during the course of the trial that Ms. Luis was taking prescribed
medications and pursuing treatment such as surgery. She appeared genuinely
willing to pursue recommended treatment, although she has sometimes reacted
with initial apprehension.

[162]     In the
circumstances, I conclude on the balance of probabilities that Ms. Luis will
pursue the treatments recommended to her and take the medications recommended
to her.

5)   
Whether Ms. Luis Failed to Mitigate

[163]     The
defence argues that Ms. Luis failed to mitigate by failing to obtain
psychiatric treatment prior to the trial and failing to obtain psychological
treatment earlier than she did.

[164]    
The burden of proof on the issue of mitigation lies with the defence. As
stated by Madam Justice Rowles, writing for the majority, in Graham v.
Rogers, 2001 BCCA 432 at para. 35, regarding the principle of mitigation in
personal injury cases:

Mitigation goes to limit recovery
based on an unreasonable failure of the injured party to take reasonable steps
to limit his or her loss. A plaintiff in a personal injury action has a
positive duty to mitigate but if a defendant’s position is that a plaintiff
could reasonably have avoided some part of the loss, the defendant bears the
onus of proof on that issue.

[165]    
This principle has been applied to arguments that a plaintiff has not
pursued a course of recommended medical treatment. In Chiu v. Chiu, 2002
BCCA 618, Mr. Justice Low wrote as follows at para. 57:

…the defendant must prove two
things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiff’s damages would
have been reduced had he acted reasonably.

[166]    
The court is slow to determine that good faith decisions are
unreasonable. As set out in Paniccia Estate v. Toal, 2012 ABCA 397 at
para. 86:

…the court only lightly reviews
the decision of the person injured to try to mitigate his loss. Courts are
extremely slow to criticize good-faith decisions by victims of torts about both
whether to take steps in mitigation, or which steps, or how much expense or
risk to incur in doing so.

a)   
Psychiatrist

[167]     Dr. Shu
did not refer Ms. Luis to any psychiatrists until April 2012. Ms. Luis did not
see Dr. Liang because of the distance she would have been required to travel
for appointments in light of her driving anxiety, incontinence and dizziness.
That was reasonable. Ms. Luis saw Dr. Ancill for the purposes of the
medical-legal opinion, but did not see him for treatment. Even though Ms. Luis
saw Dr. Shu frequently and did not see a psychiatrist, Dr. Shu did not pursue
referring Ms. Luis to any other psychiatrist until just before the trial when
Ms. Luis suggested Dr. Paragos.

[168]     While it
would likely have been better if Dr. Shu had persisted earlier in referring Ms.
Luis to a psychiatrist, Ms. Luis did not refuse to pursue recommended
treatment.

[169]     However, even
if I am wrong in that, the evidence did not establish that Ms. Luis’s
damages would have been reduced if she had seen a treating psychiatrist prior
to the trial.

b)   
Psychologist

[170]     Ms. Luis
saw the psychologist Dr. Ferry in June 2012, but did not continue after a few
sessions for financial reasons. The defence argued that Ms. Luis might have
been able to obtain funding through her husband’s extended medical plan, but
that plan was not in evidence and the submission that she might have obtained
funding through that plan was simply speculation. Ms. Luis did not unreasonably
refuse to pursue treatment with Dr. Ferry.

[171]     Ms. Luis had
numerous treatments with Dr. Browning once she was referred to him in the
summer of 2013 and the treatment was funded.

[172]     In all the
circumstances, Ms. Luis did not unreasonably refuse to pursue psychological
treatment earlier. Again, even if I am wrong in that, the evidence did not
establish that Ms. Luis’s damages would have been reduced if she had seen a
psychologist before she saw Drs. Ferry and Browning or if she had pursued more
treatment with Dr. Ferry.

c)   
Assessment of Damages

1)   
Non-pecuniary Damages

[173]     Ms. Luis
claims non-pecuniary damages of $150,000, arguing that she suffers from severe
chronic pain. She is 49 years of age. The plaintiff relies on Best v. Thomas,
2014 BCSC 1033 (in which the award was $225,000), and McLeod v. Goodman,
2014 BCSC 839, reconsideration allowed on other grounds 2014 BCSC 1551 (in
which the award was $130,000).

[174]     The
position of the defence is that an appropriate award is $75,000 to $100,000.
The defence relies on the following cases: Burtwell v. McCaffrey, 2013
BCSC 886; Carr v. Simpson, 2010 BCSC 1511; Westbroek v. Brizuela,
2012 BCSC 1955, varied on other grounds 2014 BCCA 48; and Kralik v. Mt.
Seymour Resorts Ltd. et al, 2007 BCSC 258, varied on other grounds 2008
BCCA 97.

[175]     The purpose of an award for non-pecuniary damages is to compensate
Ms. Luis for her pain, suffering, and loss of amenities of life.

[176]     Ms. Luis is entitled to an award to provide solace and to make her
life more endurable with the injuries that she lives with.

[177]    
Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, leave to appeal ref’d [2006]
S.C.C.A. No. 100 [Stapley], is a commonly-cited decision of the B.C.
Court of Appeal regarding non-pecuniary damages and the principles behind them:

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

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

[Emphasis added in Stapley.]

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

(a) age of the
plaintiff;

(b) nature of the
injury;

(c) severity and
duration of pain;

(d) disability;

(e) emotional
suffering; and

(f) loss or
impairment of life;

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

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

(h) impairment of
physical and mental abilities;

(i)  loss of
lifestyle; and

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

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue
injuries which have led to painful shoulder surgery, chronic disabling pain in
her neck and right shoulder and lower back, moderate to severe major
depression, PTSD, and significant weakness in her dominant right hand;

c)    
Ms. Luis’s pain has been severe, particularly
since the Second Accident, and it is unlikely that her pain or depression or PTSD
or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from
working and driving and is significantly disabled from personal care, home
care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the
impairment of her relationships with her husband and children, and the loss of
the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both
counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

2)    Past Loss of Earnings and Earning Capacity

[181]     On my
calculation, Ms. Luis’s claim for past wage loss is for about $113,000. That
consists of $127,000 for the whole period, less about $14,000 for the five
month period when Ms. Luis received salary continuance payments from Hutchings
because her job was ending. This was calculated on the basis of the difference
between what Ms. Luis earned following the accidents and what she would have
earned had she continued to be employed by Hutchings at the rate she was
earning at Hutchings, with an assumed 1.2% salary increase about midway
through.

[182]     The
position of the defence is that Ms. Luis should receive $10,000 to $14,000 for
past lost earnings, on the basis that she would reasonably have worked only
part-time for a short period after the First Accident, and would reasonably
have taken off two to three months of work following the shoulder surgery. The
defence argues that Ms. Luis’s three-week absence following the Second Accident
did not result in a loss because she was paid using vacation and sick time and,
because Hutchings closed, her vacation and sick time had no value to her.

[183]     The
defence argues that Ms. Luis did not lead medical opinion evidence supporting
her 20-month absence from work following the First Accident and that, therefore,
the court should refuse to award damages for her lost earnings in that period. Although
Dr. Shu testified, he testified as a factual witness and not as an expert
witness. The defence similarly argues that Ms. Luis did not lead medical
opinion evidence to justify the three-week absence after the Second Accident.

[184]    
The evidence as a whole supports the conclusion
that Ms. Luis’s absences from work were caused by the accidents. It was not
necessary for Ms. Luis to qualify as an expert the treating physician, Dr. Shu,
who was involved with Ms. Luis’s decision to stay off work. Ms. Luis saw Dr.
Shu frequently. She was entitled to rely on his recommendations, whether his
recommendations were based on correct or incorrect medical opinion.

[185]    
The defence argument raises the issue of the
deductibility of the benefits Ms. Luis received through Equitable Life and
employment insurance. I discussed this issue in Dionne v. Romanick, 2007
BCSC 436, at paras. 113-121 as follows:

[113] The question of whether benefits received by an injured
plaintiff should be deducted from the plaintiff’s claim for lost earnings has
been the subject of significant  judicial and academic comment. The policy
reasons suggesting that they should be deducted consist  largely of a desire to
avoid double recovery, and to restore the plaintiff to his or her pre-tort
position rather than to punish the wrong-doer. The policy reasons suggesting
that they should not be deducted focus on the contribution made by the
plaintiff to acquiring the benefits, suggesting that the tortfeasor should not
benefit from the plaintiff’s sacrifices in obtaining the benefit. In some
cases, this is referred to as the "insurance exception" to the
general rule that benefits are deductible.

[114] The starting point for analysis is the decision of the
Supreme Court of Canada in Ratych v. Bloomer, [1990] 1 S.C.R.
940, [1990] S.C.J. No. 37. In that case, the court considered whether a
plaintiff who had lost work as a result of injuries caused by a tortfeasor
could recover from the tortfeasor damages for loss of earnings where the
plaintiff had been paid his full salary pursuant to his contract of employment.
In that case, the plaintiff was a police officer. He continued to be paid pursuant
to the terms of his collective agreement, and did not lose accumulated sick
credits. He did not pay premiums for the salary continuation protection.

[115] Madam Justice McLachlin wrote for the five-member
majority of the court, in paras. 94-101 as follows:

94. The general principles
underlying our system of damages suggest that a plaintiff should receive full
and fair compensation, calculated to place him or her in the same position as
he or she would have been had the tort not been committed, in so far as this
can be achieved by a monetary award. This principle suggests that in
calculating damages under the pecuniary heads, the measure of the damages
should be the plaintiff’s actual loss. It is implicit in this that the
plaintiff should not recover unless he can demonstrate a loss, and then only to
the extent of that loss. Double recovery violates this principle. It follows
that where a plaintiff sustains no wage loss as a result of a tort because his
employer has continued to pay his salary while he was unable to work, he should
not be entitled to recover damages on that account.

…

96. The argument that wages paid by
an employer pursuant to a contract of employment are akin to insurance and
hence should not be deducted on the principle in Parry v. Cleaver cannot
prevail, in my view. First, it is rejected in Parry itself, Lord Reid
stating that in such a case, no loss ever arises. Second, the argument rests on
the assumption that the employee has in fact suffered a loss or actually
contributed to the fund from which the earnings are paid, an assumption which,
in the absence of evidence, is far from self-evident.

97. Without placing them in a
determinative role, it appears that considerations relating to loss
distribution generally support the view that wage benefits paid to a plaintiff
while he or she is off work should be deducted from damages awarded for loss of
earnings.

…

99. These considerations suggest
the following rule. As a general rule, wage benefits paid while a plaintiff is
unable to work must be brought into account and deducted from the claim for
lost earnings. An exception to this rule may lie where the court is satisfied
that the employer or fund which paid the wage benefits is entitled to be
reimbursed for them on the principle of subrogation. This is the case where
statutes, such as the Workers’ Compensation Act, expressly provide for payment
to the benefactor of any wage benefits recovered. It will also be the case
where the person who paid the benefits establishes a valid claim to have them
repaid out of any damages awarded. …

100. These comments should not be
taken as extending to types of collateral benefits other than lost earnings,
such as insurance paid for by the plaintiff and gratuitous payments made by
third parties. Those issues are not before the Court and must be left for
another day.

101. In this case the plaintiff was
paid his full salary during the period he was off work as a result of his
injuries. The principles to which I have alluded suggest that in these
circumstances his claim against the tortfeasor for loss of earnings on the
ground that the plaintiff has not established a loss, should be dismissed
unless a valid claim is established on the part of the employer who paid the
benefits.

[116] In summary, Ratych provides that as a
general rule, wage benefits paid while a plaintiff is unable to work must be
brought into account and deducted from the claim for lost earnings.

[117] In Cunningham v. Wheeler, [1994] 1 S.C.R.
359, [1944] S.C.J. No. 19, the Supreme Court of Canada considered a similar but
distinct issue. Mr. Cunningham collected disability benefits under a disability
plan established under the provisions of a collective bargaining agreement. He
was not required to pay those benefits back pursuant to any subrogation
agreement. Evidence established that the disability benefit provision resulted
from a trade-off against wages negotiated by the union. Cory J., on behalf of
the four-member majority of the seven-member panel of the court, wrote as
follows at para. 94:

In my view Ratych v. Bloomer,
supra, simply placed an evidentiary burden upon plaintiffs to establish
that they had paid for the provision of disability benefits. I think the manner
of payment may be found, for example, in evidence pertaining to provisions of a
collective bargaining agreement just as clearly as in a direct payroll
deduction.

[118] Cory J. also referred to a non-union employee. He wrote
as follows at para. 99:

The application of the insurance
exception to benefits received under a contract of employment should not be
limited to cases where the plaintiff is a member of a union and bargains
collectively. Benefits received under the employment contracts of non-unionized
employees will also be non-deductible if proof is provided of payment in some manner
by the employee for the benefits. Although there may not be evidence of
negotiations for the wage/benefits package which makes up the employee’s
remuneration, evidence that the employer takes the cost of benefits into
account in determining wages would adequately establish that the employee
contributed by way of a trade-off against higher wages. Clearly, if the
non-union employee contributed to the plan by means of payroll deductions, that
would prove the employee’s contribution. Again, these suggested methods of
proof are not an exhaustive list.

[119] An aspect of the deductibility issue was considered in Kask
v. Tam (1996), 72 B.C.A.C. 133, 21 B.C.L.R. (3d) 11 (C.A.)). Donald
J.A., whose reasons were adopted by the other members of the panel, wrote at
para. 18 that the crucial issue is the proper characterization of the benefits
received. Benefits properly characterized as wages are deductible; benefits in
the nature of insurance are not.

[120] Donald J.A. wrote at para. 20 that the majority in Cunningham:

mitigated the rigor of the direct
payment test for proof of the insurance exception as enunciated in Ratych.
The effect of Cunningham is that the insurance exception has swallowed
the rule.

[121] He wrote at paras. 23 and 24 as follows:

23 While Ratych survives to
the extent of requiring some demonstration that the salary continuance was paid
for in some way by the plaintiff Cunningham so lightened the burden of
proof as to reverse the philosophical rationale in Ratych. …

24 There will be few cases where the tortfeasor can escape
paying compensation to an employee for lost time at work when the absence was
covered by the employer or its insurer. Either the employer was obliged by
contract to pay or to provide insurance coverage, in which case it can be
easily shown that the benefit formed part of the overall compensation package,
or the employer was under no obligation but continued the salary ex gratia,
in which case the law says that the tortfeasor cannot take the benefit of
another’s generosity.

[186]     In this case the employment insurance benefits, the Equitable Life
benefits, Ms. Luis’s use of vacation time, and her use of sick time, all fall
within the “insurance exception” and it is not appropriate to deduct them from
Ms. Luis’s award for past wage loss.

[187]     With respect to past loss of earnings, Ms. Luis is entitled to
recover the amount of her damages only after deducting the applicable income
tax, pursuant to section 98 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231, and Lines v. W&D Logging Co. Ltd., 2009 BCCA 106 at
paras. 152-186, leave to appeal ref’d [2009] S.C.C.A. No. 197. Mr. Turnbull’s
calculations took income tax into account.

[188]     Mr. Turnbull’s past wage loss calculations assumed that Ms. Luis’s
salary increased in the period between the First Accident and trial, but that
was based on a misunderstanding of some documentation. As a result, his
calculation must be reduced by the amount net of tax of about $2,000. On my
calculations, with that reduction, Ms. Luis’s claim for past lost wages is for
$111,000.

[189]     I have utilized Ms. Turnbull’s calculations made on the assumption
that Ms. Luis would have continued work at Hutchings, or for an employer paying
a similar amount, if she had not been injured in the accidents. It is unlikely that
Ms. Luis would have found a better-paying job in that period.

[190]     Ms. Luis is entitled to $111,000 for past wage loss.

3)   
Future Loss of Income or Lost Earning Capacity

[191]     The
plaintiff claims $700,000 for future loss of earnings and earning capacity.
This is based on the assumption that Ms. Luis would likely have secured
alternate employment as a general office assistant earning at least the
statistical average earnings of $48,000 per year in 2014.

[192]    
The manner of assessing future lost income or lost earning capacity was
discussed in Burtwell v. McCaffrrey, 2013 BCSC 886 at paras. 97 and 98,
as follows:

[97] In Brown v Golaiy (1985), 26 BCLR (3d) 353 (SC)
Finch J. (as he then was) set out some general factors for assessing a loss of
earning capacity at para. 8:

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case.
Some of the considerations to take into account in making that assessment
include whether:

1. The plaintiff has been rendered less
capable overall from earning income from all types of employment;

2. the plaintiff is less marketable
or attractive as an employee to potential employers;

3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. the plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.

[98] The quantification of a loss
of earning capacity may be done on either a capital asset approach or an
earnings approach. The capital asset approach is used where the loss is not
easily measureable, such as where the plaintiff is young and his or her career
path is uncertain. The earnings approach is more useful when the loss is more
easily measurable, such as here, where the plaintiff has a work history: Perren
v Lalari, 2010 BCCA 140 at para. 32. The amount of damages should
reflect the degree of chance that the future loss will occur, as well as any
other negative or positive contingencies pertinent to the case.

[193]     I accept
that Ms. Luis has suffered a complete loss of her earning capacity.

[194]     However, I
do not accept that Ms. Luis would likely have earned as much as the statistical
average earnings of a general office assistant of $48,000 per year if the
accidents had not occurred. She would be more likely to have found work at a
similar rate to what she was earning at Hutchings.

[195]     As stated,
Ms. Luis testified that she anticipated staying at Hutchings until she was 65
or 70 years old.

[196]     On my
calculations, using the multiplier of 13.285 provided by Mr. Turnbull, if Ms.
Luis had continued to earn $38,000 per year to age 65, she would have earned
about $505,000 for the period commencing with the trial. The multiplier
reflects adjustment for present value and survival probability, but it is not
discounted for the possibility of any periods of unemployment.

[197]     I consider
that the likelihood that Ms. Luis would have suffered periods of unemployment
is roughly financially equivalent to the likelihood that she would have worked
until she was older than 65 years of age. As a result, Ms. Luis is entitled to $505,000
for loss of earning capacity.

4)   
Cost of Future Care

[198]     Ms. Luis
claims about $585,000 for the cost of future care.

[199]    
In the case of Tsalamandris v. McLeod,
2012 BCCA 239 at paras. 62 – 63, the B.C. Court of Appeal recently succinctly
summarized how an award for cost of future care should be assessed:

[62] The test for assessing future care
costs is well-settled: the test is whether the costs are reasonable and whether
the items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

3. The primary
emphasis in assessing damages for a serious injury is provision of adequate
future care. The award for future care is based on what is reasonably necessary
to promote the mental and physical health of the plaintiff.

[63] McLachlin J., as she then was, then
went on to state what has become the frequently cited formulation of the “test”
for future care awards at page 84:

The test for
determining the appropriate award under the heading of cost of future care, it
may be inferred, is an objective one based on medical evidence.

These authorities establish (1) that there
must be a medical justification for claims for cost of future care; and (2)
that the claims must be reasonable.

[200]    
The opinion of a physician is not necessary to
ground an award for cost of future care: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 [Gregory]. In Gregory, the
court said, on this point:

[38] Courts do accept testimony from a variety of health care
professionals as to necessary and reasonable costs of future care: Jacobson
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.)
at para. 182; in which Levine J. (as she then was) said:

[182] The test she enunciated does
not, in my view, require that the evidence of the specific care that is
required by the plaintiff be provided by a medical doctor. In Milina v.
Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as
to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras.
43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it
necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional: Aberdeen
at paras. 43, 63.

[201]     Mr.
Collette argues that Ms. Luis should be awarded the cost of a private pain
clinic. The evidence was not clear on whether she would qualify for a publicly
funded pain clinic. Ms. Luis’s difficulties are severe and require a
multi-disciplinary approach. She is entitled to an award for the cost of a
private pain clinic.

[202]     Ms. Luis
claims about $3,700 for physiotherapy treatments. The defence argues that this
figure should be reduced to reflect the fact that Ms. Luis received some
physiotherapy treatments after the recommendations and prior to trial.
Ms. Luis is entitled to $3,500 for physiotherapy following the trial.

[203]     Ms. Luis seeks
about $13,000 for the cost of future psychological treatments. Ms. Berry
provided a range reflecting different numbers of treatment sessions. Ms. Luis
is entitled to $12,500, which reflects a $500 discount for the treatments Ms.
Luis received between the reports and the trial.

[204]     Ms. Luis
claims about $50,000 for the cost of future medications. Ms. Luis’s medications
are likely to change over the balance of her life, depending on how she reacts
to them over time. She is likely to pursue psychiatric treatment and to be
prescribed relatively expensive medications. Ms. Berry’s calculations lead to a
figure closer to $80,000. In the circumstances, Ms. Luis is entitled to $50,000
for the cost of future medications.

[205]     Ms. Luis
claims about $218,000 for the cost of future home support. Ms. Berry’s
recommendations lead to a figure closer to $255,000, but Mr. Colette argues
that the figure should be reduced to reflect the probability that Ms. Luis will
be able to resume more personal care in time. The amount claimed is reasonable.
Ms. Luis is entitled to $218,000 for the cost of future home support.

[206]     Ms. Luis
claims about $21,500 for the costs of health strength maintenance, being the
cost of gym memberships, ongoing gentle yoga classes, and the like. Ms. Luis
is proficient at her home exercise program, but would likely benefit from the
assistance of ongoing teaching and social interaction. She is entitled to
$21,500 for the costs of health strength maintenance.

[207]     Ms. Luis
claims $250,000 for the future cost of taxi transportation. Ms. Berry made
detailed calculations regarding taxi transportation, and Mr. Turnbull provided
the present value of each of Ms. Berry’s recommendations. The total is about $430,000.
Of that, about $320,000 relates to taxi service for up to five days per week or
260 trips per year at $57.60 per trip for structured daily outings and shopping
and the like. About $65,000 relates to taxi service for 59 to 65 one-time trips
within six months, and then two to three trips per week on an ongoing basis for
physiotherapy and exercise at $23.34 per round trip. The balance of about
$45,000 relates to trips for medical and counselling treatments, assuming up to
$115.20 per round trip for some specialists but only $23.34 per round trip for
visits to her family physician.

[208]     Mr.
Collette argues that $250,000 would be a reasonable figure for Ms. Luis’s
future transportation costs. Mr. Hinton argues for the defence that little or nothing
should be awarded, on the basis that any taxi costs she will incur as a result
of the accidents would be offset by the cost of purchasing and maintaining a
car if she were able to drive. Mr. Hinton also argues that the award should
take into account the fact that Ms. Luis had taken some of the recommended
counselling and physiotherapy treatments by the time of the trial, and the
contingency that Ms. Luis may improve enough to return to driving.

[209]     Ms. Luis
is presently unable to drive because of the symptoms of her PTSD. She cannot
reasonably take public transportation because of the distances involved from
her Port Coquitlam home, her need for access to washroom facilities because of
her incontinence, and her periodic dizziness.

[210]     Ms. Luis
is unlikely to recover fully from her PTSD. She is unlikely to recover enough
that she can drive herself. She is likely to need assistance with
transportation in the future.

[211]     However,
the amount claimed is excessive. Ms. Luis is not likely to need transportation
five days a week to go shopping or on outings for $57.60 per trip. She will
likely be able to obtain some transportation with family members or friends.
She is not likely to need to shop or go on outings as often as five days a
week, and not all of her outings would likely require $57.60 per trip. Ms. Luis
is also not likely to require transportation for physiotherapy and exercise two
to three times a week on an ongoing basis at $23.34 per trip. She might combine
such trips with shopping trips, or travel with family or friends, or exercise
at home, or exercise at locations closer to her home.

[212]     The award
should also take into account the fact that Ms. Luis would have had
transportation expenses even if she had not been injured in the accidents. Such
expenses would include the costs of purchasing and maintaining a vehicle,
although if Ms. Luis had not been injured, she likely would have been able to
share some of those costs with other family members.

[213]     Considering
all of these factors, a fair award for Ms. Luis’s future transportation costs
is $75,000.

[214]     Ms. Luis
claims about $2,400 for the cost of vocational counselling services on the
basis that it would assist her to pursue a volunteer position. It is not likely
that Ms. Luis would require such services in addition to counselling and
psychiatric treatment in order to pursue a volunteer position. She is not
entitled to an award for such serves.

[215]     Ms. Luis
is entitled to an award for the costs of future care taking into account the
following:

[216]     The costs
of future care cannot be calculated with precision and an award requires an
assessment taking into account various contingencies. Ms. Luis is entitled to $400,000
for the cost of future care.

5)   
Past Loss of Driving Services

[217]     Ms. Luis
argues that she should be entitled to a payment to reflect the fact that her
family members have been driving her when required. Family members drove Ms. Luis
to her workplace when she was working after the accidents, and have also driven
her to many medical appointments and for general errands. Ms. Luis argues that
this is analogous to a loss of housekeeping services because it is an activity
she did previously, which is now performed by family members.

[218]     Ms. Luis
claims an award based on one hour of driving per day since the First Accident
at an hourly rate of $15. On that basis, she claims past losses of $32,445.

[219]     In my view
it is not appropriate to make a separate award regarding driving services. Past
transportation expenses can be considered within the award for lost house-keeping
services and the award for special costs. Future transportation expenses can be
considered within the costs of future care, as set out above. The policy
reasons which have led to consideration of house-keeping services as a separate
head of damages do not apply with the same force to driving services.

6)   
Past Loss of Housekeeping Services

[220]     Ms. Luis claims $46,350 for the past loss of capacity to perform
housekeeping services.

[221]    
The test for loss of housekeeping and home maintenance capacity was
succinctly stated by Blair J. in Menhinick v. Lobesz, 2008 BCSC 1285 at
para. 55:

…The plaintiff must establish a
real and substantial possibility that she will continue in the future to be
unable to perform all of her usual and necessary household work, and that the
work she will not be able to do will require her to pay someone else to do it,
or will require others to do it for her gratuitously.

[222]     Damages
may be awarded for loss of housekeeping capacity even if the plaintiff has not
incurred any actual expenses for hired services: see Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652 at para. 9, leave to appeal dismissed [1995] SCCA
No. 263 [Kroeker]; Easton v. Chrunka, 2006 BCSC 1396 at para. 45;
and Dykeman v. Porohowski, 2010 BCCA 36 at para. 28.

[223]     In Kroeker,
the majority of the Court of Appeal recognized that damages for past and future
loss of housekeeping and home maintenance capacity may be by pecuniary or
non-pecuniary damages, and if non-pecuniary, that there was no reason these
damages could not be segregated.

[224]     Mr. Collette argues that Ms. Luis has been substantially unable to
perform most of her housekeeping duties since the First Accident. Ms. Berry has
recommended 10 hours per week of homemaking services and personal care. Using
Ms. Berry’s recommendation as a base and an hourly rate of $15, Mr. Collette
argues that the past loss of housekeeping services has a value of $46,350 for
the six years between the First Accident and the trial (309 weeks x 10 hours x
$15).

[225]     Ms. Luis has not required ten hours of care since the First
Accident. She was unemployed but improving over the first 20 months, and then
worked for about 15 months. She required more care after the shoulder injury in
the Second Accident, but received paid assistance about 21 months later. She
has received significant family assistance, including driving services,
particularly in the 21 months after the Second Accident.

[226]     Ms. Luis is entitled to $25,000 for past loss of housekeeping
services including driving services.

7)   
Special Damages

[227]     Ms. Luis
claims $25,917 for special damages. Mr. Hinton argues that Ms. Luis should receive
$6,169.91 and challenges a number of the items claimed.

[228]     Mr. Hinton
argues that the court should not make an award for expenses Ms. Luis incurred
in the absence of medical evidence to the effect that the expenses were
required medically.

[229]     I do not
agree that expenses are reasonable only if there is opinion evidence that the
expenses were medically required. Ms. Luis was entitled to follow Dr. Shu’s
recommendations, whether or not she proves that his recommendations were
correct. As a result, Ms. Luis is entitled to recover the costs of treatment
Dr. Shu recommended to her, including the spinal decompression treatments from
Dr. McKenzie and the acupuncture and herbal formula costs.

[230]     Ms. Luis
claimed $390.00 for the cost of orthotics. Ms. Luis purchased orthotics in May
2010 on Dr. Shu’s recommendation because she was experiencing foot pain. There
was no medical evidence connecting this foot pain with the First Accident. Ms.
Luis is not entitled to $390.00 for the cost of orthotics.

[231]     While the
evidence did not demonstrate whether someone recommended the bidet purchase to
Ms. Luis, the cost of about $217.00 claimed is reasonable in light of her
difficulties with personal care.

[232]     Ms. Luis’s
claim for special costs includes about $5,800 regarding payments to Equitable
Life. Mr. Hinton argues that Ms. Luis is not entitled to these payments because
she would have made the payments to Equitable Life even if she had been
working.

[233]     My
examination of the invoices suggests that they reflect the contribution that
Ms. Luis was required to make for the uninsured portion of treatments and costs
such as for physiotherapy and medication. The Equitable Life invoices do not
appear to be claims for premiums that Ms. Luis would have paid even if the
accidents had not occurred.

[234]     However, I
am concerned that there may be some duplication between the amount Ms. Luis
claimed for treatments and costs and the amount she paid to Equitable Life. I
did not have the opportunity to address that question to counsel.

[235]     If the
parties are not able to reach agreement about this, they will be entitled to
make further submissions. I will set out the award on the basis that there is
no duplication and the parties may agree to a reduction in the amount of
special damages to reflect duplication.

[236]     Ms. Luis’s
special damages claim included some amount for taxis and for gasoline costs
regarding trips for medical and other appointments arising because of the
accidents. She is entitled to receive payment for those expenses as special
damages.

[237]     After
deducting from Ms. Luis’s claim $390.00 for orthotics and $230.00 for an
unrelated item, Ms. Luis is entitled to the rounded figure of $26,000 for
special damages, subject to further agreement or order regarding Ms. Luis’s
payments to Equitable Life.

8)   
Tax gross-up and Management Fee

[238]     The
parties have agreed that the questions of assessing tax gross-up and determining
whether there should be a fund management fee awarded will be deferred until
the release of these reasons for judgment.

Summary

[239]     In
summary, Ms. Luis is entitled to $1,187,000 plus applicable pre-judgment
interest, subject to further agreement or order regarding Ms. Luis’s award for
special damages and her payments to Equitable Life. The award consists of the
following:

a)    $120,000 for
non-pecuniary damages;

b)    $111,000 for
past wage loss;

c)     $505,000
for lost earning capacity;

d)    $400,000 for the
costs of future care;

e)    $25,000 for past
loss of housekeeping services including driving services; and

f)      $26,000
for special damages.

[240]    
As stated, the parties have liberty to make further submissions
regarding Ms. Luis’s award for special damages and her payments to Equitable
Life and regarding tax-gross up and management fees. If the parties cannot
agree on the figures relating to pre-judgment interest, the question is
referred to the registrar. If either party wishes to make submissions on costs,
counsel should estimate the time required and schedule a hearing before me
through the registry. If neither party wishes to make submissions on costs, Ms.
Luis is entitled to her costs on Scale B, for matters of ordinary difficulty.

“Gray
J.”