IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150115

Docket: M102785

Registry:
Vancouver

Between:

Fay Carol Cornish

Plaintiff

And

Gian Singh Khunkhun
and Rajdeep Kaur Lalli

Defendants

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
The plaintiff, Fay Cornish, claims damages for injuries sustained as a
result of a motor vehicle accident that occurred on January 25, 2010 at the
intersection of 72 Avenue and Scott Road, also known as 120 Street, in Surrey,
British Columbia (the “accident”).

[2]            
Ms. Cornish was driving west on 72 Avenue in a 2009 Chevrolet Uplander van.
As she entered the intersection at Scott Road, a 2002 Honda Civic heading east
on 72 Avenue turned left in front of her and the vehicles collided. The Honda Civic
was driven by the defendant Gian Singh Khunkhun and owned by the defendant
Rajdeep Kaur Lalli.

[3]            
Both liability and quantum of damages are in issue.

Summary of the Evidence

Ms. Cornish’s Pre-Accident history

[4]            
Ms. Cornish was born on February 20, 1951 and was 58 years old at the
time of the accident. She is currently 63.

[5]            
Ms. Cornish was born in Ontario, but moved to British Columbia when she
was six and has lived here ever since.

[6]            
Ms. Cornish said that she came from a very close family and that she had
a happy childhood. She was particularly close to her father who often took her
and her brother camping, hiking and fishing.

[7]            
Following high school, she took a number of nursing courses at college,
but did not complete her nurse training because her son Ian was born in 1970. Throughout
the 1970’s she had a number of different secretarial and administrative jobs.

[8]            
From 1980 – 1986 she worked as an admitting clerk at Langley Memorial
Hospital and then from 1988 – 2000 she worked at St. Mary’s Hospital in Sechelt,
initially as a care aide and then in various other positions. As a care aide,
she would bathe patients, feed them, monitor their condition and generally
assist the nurses. Ms. Cornish said that she enjoyed the work as she had
originally hoped to be a nurse.

[9]            
While in Sechelt, she also worked for a period of time in a bakery. She
said that she would often work a morning shift at the hospital then go to the
bakery for another eight hour shift.

[10]        
At some point in the 1980’s, she and her parents purchased a property in
Sechelt that she and her father renovated. Ms. Cornish said that her father
taught her all aspects of renovation work, including wiring, plumbing and drywalling.

[11]        
They later bought a second property in Wilson Creek and again did
extensive renovations. While Ms. Cornish was vague on dates, it appears that
this work was done in the late 1980’s and early 1990’s.

[12]        
Ms. Cornish raised two children, largely as a single parent. Her son Ian
was born in 1970 and her daughter Dawn in 1983. Ian was diagnosed with
schizophrenia as a young adult and Ms. Cornish has been closely involved in his
care. Dawn is now married and has two young children.

[13]        
In 1992, Ms. Cornish injured her back at work which resulted in two back
surgeries. Ms. Cornish then engaged in a long dispute about benefits with the
Workers’ Compensation Board (the “WCB”). That dispute was ultimately resolved and
she was awarded a disability pension, which she continues to receive today.

[14]        
In or about 1993, Ms. Cornish suffered what she described as a nervous
breakdown. This was the culmination of a number of factors, most notably the
death of her older brother Fred in a drowning accident, as well as her ongoing
dispute with the WCB and the diagnosis of her son with schizophrenia.

[15]        
Ms. Cornish continued to work at the hospital in Sechelt until 2000. Due
to her injury, she was unable to continue as a care aide, but the hospital
tried her in other positions. She left in 2000 because she said that the
hospital never did come up with a suitable alternative position.

[16]        
In 2000, Ms. Cornish moved to the Lower Mainland. Around that time, she
purchased a large house with the intention of converting it into a residential
care facility. Ms. Cornish said that she did all of the work to renovate the
house, with the assistance of her father. Unfortunately, Ms. Cornish was never
able to secure the proper licence to operate the care facility.

[17]        
Throughout the early to mid-2000’s, Ms. Cornish took in foreign homestay
students who lived in the house with her. She testified that she enjoyed having
the students and remains close to many of them today. While they lived with
her, Ms. Cornish cooked and cleaned for them, drove them to school and
took them on outings.

[18]        
In 2006, Ms. Cornish’s mother was diagnosed with cancer. Ms. Cornish
went back to the Sunshine Coast to care for her. Ms. Cornish’s mother passed
away on December 16, 2006.

[19]        
Ms. Cornish then brought her father to live with her in the Lower Mainland
as he was also in frail health. She said that she did everything for him
including feeding and bathing him. Her father died on December 26, 2007.

[20]        
Shortly after that, she gave up the house she was living in and declared
bankruptcy. She said this was due to the fact that she had been unable to
secure a licence for the care facility and she also no longer had financial
support from her father.

[21]        
Thereafter, Ms. Cornish lived in various rental accommodation in Surrey
and Langley. She currently lives in the Cloverdale area of Surrey.

[22]        
She was also very involved with her children and grandchildren, often
providing childcare for her daughter Dawn’s children.

[23]        
Ms. Cornish testified at some length about her pre-accident activities. For
example, she testified about a trip to Asia in 1999 and motorcycle trips to a
bike festival in Sturgis, South Dakota that she did for a number of years up
until about 2002. She also bred and sold Shih Tzu dogs. She said that at the
peak of this activity, she had one male and eight females and that she would
sell the puppies for $550.00 – 600.00. According to Ms. Cornish, she stopped
breeding in or about 2007.

[24]        
In 2009, Ms. Cornish returned to work part-time as an in-home care aide,
earning $12.00 per hour.

[25]        
In or about 2009, Ms. Cornish began to develop plans to open her own
home care business under the name Stay Home Home Care. Having returned to work
part time as a care aide, it occurred to Ms. Cornish that there was a
significant difference in what her employers charged clients and what they paid
to their employees. She thought that she could recruit good employees by paying
a little bit more than the industry standard wages, yet still charge clients
competitive rates and make money.

[26]        
Ms. Cornish said that her friend Shelley Fraser-Biscoe had agreed to work
for her, although Ms. Fraser-Biscoe had a number of physical ailments and
limitations that would restrict her to light overnight work. She said that she had
also talked to two women who provided care to her friend Mr. Piner who said
they would be interested in joining her once the business started up.

[27]        
There was evidence that Ms. Cornish registered Stay Home Home Care as a
sole proprietorship on October 6, 2009 and that she had business cards prepared.
She also said that she had a website created by the same people who did the
business cards.

[28]        
According to Ms. Cornish, she thought that she could run the business
and interview prospective clients to determine their needs. She also thought
she might do occasional night shifts, recognizing that she could not do the
heavy work often required during the day.

[29]        
Ms. Cornish thought that, based on her experience, there was a heavy
demand for this type of service. She also thought that she could run the
business for many years, well past normal retirement age.

[30]        
A number of witnesses testified about Ms. Cornish’s health and
activities before and after the accident. I do not propose to go through that
evidence in great detail as much of it is duplicative and much deals with Ms.
Cornish’s life and activities many years, even decades, prior to the accident. I
will however highlight some of the key portions.

[31]        
Shelley Fraser-Biscoe is a friend of Ms. Cornish. They met in 2000 when
they lived in the same apartment complex in Surrey.

[32]        
According to Ms. Fraser-Biscoe, she and Ms. Cornish spent considerable
time together and engaged in numerous activities. They often went camping, for
example at Chilliwack Lake, using tents, air mattresses and sleeping bags. Ms.
Cornish often brought her granddaughter or some of her homestay students.

[33]        
Ms. Cornish introduced Ms. Fraser-Biscoe to her hobby of ghost hunting
which involves looking for and photographing shadows in places such as graveyards
and other locations where spirits or other supernatural phenomena might be
present. According to Ms. Fraser-Biscoe, they would go ghost hunting up to
three times per week, often at graveyards in Fort Langley.

[34]        
Other activities that they engaged in included hiking, fishing and
shopping at local farmers markets.

[35]        
Ms. Fraser-Biscoe described Ms. Cornish, prior to the accident, as a
happy and optimistic person who always saw the best in people. She was patient
and a good listener, who often helped Ms. Fraser-Biscoe talk through problems
in Ms. Fraser-Biscoe’s life.

[36]        
Ms. Fraser-Biscoe said that Ms. Cornish was always well dressed and paid
attention to her hair and makeup. Her house was always spotless, even though
she often had numerous dogs living with her.

[37]        
Ms. Fraser-Biscoe was aware of Ms. Cornish’s plan to open a home care
business and, in fact, Ms. Fraser-Biscoe planned to work in the business. She
thought that Ms. Cornish’s plans for the business were good.

[38]        
Ms. Shelley Kyriakidis is another long-time friend of Ms. Cornish. They
met when Ms. Kyriakidis was 15 years old and dating Ms. Cornish’s brother. Ms. Kyriakidis
has known Ms. Cornish for about 44 years.

[39]        
Ms. Kyriakidis also testified at some length about activities that she
and Ms. Cornish did together when they were younger, in the 1980’s and
1990’s, including camping, hiking, fishing and boating. According to Ms. Kyriakidis,
Ms. Cornish was always active and was fun to be around.

[40]        
As noted, in 1992, Ms. Cornish injured her back at work and underwent two
surgeries. Ms. Kyriakidis said that after the second surgery, Ms. Cornish
recovered well, but was less active than previously, for example she could not
exercise to the same degree or lift heavy objects. According to Ms. Kyriakidis,
she and Ms. Cornish also did less camping and hiking together, but this was
largely due to the fact that their children were getting older and their
lifestyles were changing.

[41]        
In 1993, Ms. Cornish’s brother died in a drowning accident. According to
Ms. Kyriakidis, this was devastating to Ms. Cornish and her parents as
they were a close family. Ms. Kyriakidis understood that Ms. Cornish went on
anti-depressants following her brother’s death.

[42]        
Notwithstanding these challenges, Ms. Kyriakidis said that Ms. Cornish
picked herself up and got on with life as that was her nature.

[43]        
Ms. Kyriakidis testified about Ms. Cornish’s plans to develop a home
care business. Ms. Kyriakidis thought the plan made sense and she agreed
to do the payroll for the business.

[44]        
Ms. Cornish’s daughter Dawn Cornish-Suelzle also testified. For ease of
reference and to distinguish her from Ms. Cornish, I will refer to her by her
given name Dawn.

[45]        
Dawn was born in 1983 and is currently 30 years old. She is married to
Will Suelzle and they have two children, a daughter who is nine and a son who
is six. Dawn is a self-employed childrens’ event planner.

[46]        
As with a number of the other witnesses, Dawn testified at some length
about her early life with Ms. Cornish. She said that she had an active and
happy childhood living with her mother and grandparents on the Sunshine Coast. She
described Ms. Cornish as an engaged and supportive parent who attended all of
her school and sporting events. She too described participating in activities
such as camping, hiking, swimming and boating with her mother.

[47]        
At some point, Dawn began living with Ms. Cornish in the house that Ms. Cornish
had purchased to convert to a care facility. Dawn lived in the house during the
time when Ms. Cornish was taking in foreign homestay students. She testified
that Ms. Cornish did everything for those students including cooking, cleaning,
getting them to school and taking them on outings.

[48]        
Dawn’s daughter was born in 2005. At that time, Dawn was working at Peace
Arch Hospital and had gone back to school. Her husband Will was working long
hours so Ms. Cornish looked after her daughter. This was at the same time that
she was also looking after the homestay students. According to Dawn, Ms.
Cornish was very organized and happily dealt with all of the demands on her. When
Dawn’s son was born three years later, Ms. Cornish helped care for him as well.

[49]        
Dawn testified that prior to the accident in 2010, Ms. Cornish always
took good care of herself. She dressed well and had her hair and nails done.
She was also active and fit.

[50]        
Dawn was aware of Ms. Cornish’ plans to start her own home care business.
Dawn discussed the business with her mother and helped by organizing business
cards. Beyond that however, Dawn was not going to be involved in the business.

[51]        
Ms. Cornish’s son-in-law confirmed much of what his wife said about
Ms. Cornish, although it is apparent that he saw Ms. Cornish much less
frequently than Dawn saw her. There were also periods of time prior to the
accident when Mr. Suelzle rarely saw Ms. Cornish at all.

The Accident

[52]        
The accident occurred at about 9:00 a.m. on January 25, 2010. Ms.
Cornish was on her way from her home, located near 68 Avenue and 138 Street in
Surrey, to visit an elderly friend in Delta, Mr. Piner. Ms. Cornish often
visited Mr. Piner to assist him with chores around his house and to take him on
outings.

[53]        
She testified that she was proceeding west on 72 Avenue in the centre
lane. She said that as she approached the intersection of Scott Road, the
traffic light facing her was green. She looked left and right, which was her
habit, and then proceeded into the intersection.

[54]        
She said that as she went through the intersection she looked left and
right again. When she looked left, she saw a car coming at her from the east-facing
turning lane on 72 Avenue. She had no time to react.

[55]        
The Honda Civic driven by Mr. Khunkhun struck Ms. Cornish’s van on the
front left corner. The driver’s side airbag in Ms. Cornish’s van deployed as
did the passenger side airbag in the Civic.

[56]        
Both vehicles were significantly damaged and both were subsequently
written off.

[57]        
Mr. Khunkhun, who testified in Punjabi with the assistance of an
interpreter, gave a different version of events.

[58]        
Mr. Khunkhun was born in 1942 and is currently 72 years old. He was 67
years old at the time of the accident.

[59]        
He said that he was travelling east on 72 Avenue returning home to Delta
after dropping his granddaughter off at school. The Honda Civic that he was
driving belonged to his niece, the defendant Rajdeep Kaur Lalli.

[60]        
He said that as he approached the intersection of 72 Avenue and Scott Road,
he moved into the left turn lane, intending to turn left or north onto Scott
Road. When he moved into that lane, he said that the left turn signal facing
him was activated and that four or five cars in front of him turned left
through the intersection.

[61]        
When he arrived at the intersection however, the left turn signal was
off and the light governing east-west traffic on 72 Avenue had turned green. He
therefore stopped and waited for an opportunity to execute his turn. He said
that he was stopped with his rear tires on the front or eastern white line of
the north-south crosswalk on 72 Avenue.

[62]        
According to Mr. Khunkhun, the traffic light facing him turned to amber
and then to red. As it turned red, he slowly moved further into the
intersection to complete his turn. When he did so, he was struck by the other
vehicle which was travelling west on 72 Avenue. He said that he did not see
that vehicle until it struck him.

[63]        
Mr. Khunkhun said that it was his passenger side front corner that
collided with the driver side front corner of the other vehicle. His passenger
side air bag deployed but the driver side bag did not. He said that the force
of the impact spun his car so that it ended up at an angle facing northwest.

[64]        
In cross-examination, Mr. Khunkhun agreed that when he stopped at the
intersection, he was waiting for the westbound traffic on 72 Avenue to clear so
that he could complete his turn. However, he denied that he accelerated into
the intersection when he perceived a gap in the oncoming traffic. He maintained
that he waited until the light facing him turned red then slowly commenced his
left turn.

[65]        
Ms. Erica Reimer was an independent witness to the accident. On the
morning of January 25, 2010, she was travelling south on Scott Road heading to
work. At the intersection of Scott Road and 72 Avenue, she was in the left
turning lane on Scott Road, intending to turn left or east onto 72 Avenue. The
traffic light facing her was red and she was waiting for the advance turn
signal to change to green. There was one other car stopped in front of her.

[66]        
Ms. Reimer said that she was focussed on watching her traffic light but
she did notice a car in the intersection facing east on 72 Avenue waiting to
turn left.

[67]        
As she was waiting at the intersection, the accident occurred in the
intersection in front of her. She testified that immediately after the
accident, the left turn signal facing her turned to green.

[68]        
The car in line in front of her pulled into the intersection and drove around
the two cars that had collided. Ms. Reimer however pulled into an adjacent
parking lot and went to offer assistance. She went to the female driver’s car
but the woman was apparently speaking with “On Star” and Ms. Reimer did not get
her attention and they did not speak.

[69]        
Ms. Cornish relies on the expert opinion of Dennis Pieschel, who was
qualified to give opinion evidence on the damage done to vehicles as a result
of collisions and the angles of impact. Mr. Pieschel was formerly employed as a
senior damage estimator by the Insurance Corporation of British Columbia and
since 2002 he has operated his own consulting business doing vehicle damage
analyses, safety inspections and repair estimates.

[70]        
Mr. Pieschel prepared a report dated December 1, 2011 that was entered
into evidence. In preparing his report, Mr. Pieschel did not personally inspect
either vehicle as they were unavailable, but he had access to digital
photographs showing the damage sustained.

[71]        
In the photographs, it can be seen that the Chevrolet Uplander sustained
damage to the left or driver’s side front corner and the Honda Civic to the
right or passenger side front corner.

[72]        
Based on the location and nature of the damage to the two vehicles, it
was Mr. Pieschel’s opinion that the Honda Civic struck the Chevrolet Uplander. In
particular, he noted that the damage to the Uplander indicated a “clear sway”. When
a vehicle is struck from the side, the inner structure and the outer sheet
metal of the vehicle are moved in the direction of the force from the impact,
which is called sway. In this case, the front left corner of the Uplander
exhibits a sway to the right, indicating that the Uplander had been struck from
the side.

[73]        
In contrast, according to Mr. Pieschel, the Honda Civic exhibited “mash
damage” only, which occurs when the affected parts of the vehicle are pushed
straight back from front to rear by the impact. In Mr. Pieschel’s opinion, this
is again consistent with the Honda Civic striking the Chevrolet Uplander.

[74]        
Mr. Pieschel also opined in his report that because the amount of damage
to the Uplander was greater than the damage to the Civic, and given that the
Uplander was much heavier than the Civic, the Civic must have been travelling
at a far greater speed than the Uplander. However, he agreed in
cross-examination that without testing of the two vehicles’ structural
integrity or inherent stiffness, he could not say for certain which vehicle was
going faster.

Ms. Cornish’s Injuries and Post-Accident Condition

[75]        
Ms. Cornish testified that she was knocked unconscious by the impact. When
she regained consciousness, she heard a woman’s voice which turned out to be
the OnStar service. Ms. Cornish said that she was very foggy and that it took
some time for her to sort out that she had been in an accident.

[76]        
Emergency personnel attended the scene but Ms. Cornish was not taken
away by ambulance. OnStar called her a taxi and she went to Mr. Piner’s house.

[77]        
While there, she began to feel pain in her back and groin and she
continued to feel very light headed. Mr. Piner called a taxi and took her to
Surrey Memorial Hospital.

[78]        
Ms. Cornish testified that in the period immediately following the
accident, she was in considerable pain and the light headedness and confusion
persisted.

[79]        
At the time of the accident, she was living with her daughter Dawn in a
townhouse. Ms. Cornish’s bedroom was in the basement, but she could not
navigate the stairs so her bed was moved up into the living room on the main
floor. She said she stayed in the living room for two to three months.

[80]        
Thereafter, Ms. Cornish moved back into her own home, but says that her
condition has improved little over time and that she continues to experience
significant symptoms from the injuries suffered in the accident.

[81]        
Specifically, Ms. Cornish says that she suffers from regular headaches,
pain in her neck and shoulder, and back pain. She says as well that she often
experiences vertigo or dizziness, is often confused and that she has
significant memory issues. She also suffers from depression.

[82]        
In terms of her lifestyle, Ms. Cornish says that she is nowhere near as
active as she used to be. She no longer hikes or swims and rarely goes camping.
While she and Ms. Fraser-Biscoe occasionally go ghost hunting, now they simply
set up chairs and watch rather than moving about.

[83]        
According to Ms. Cornish, she is far less social as well. She no longer
hosts dinner parties and seldom goes out. She is also irritable and prone to
lose her temper.

[84]        
A particular point of distress for Ms. Cornish is that she rarely if ever
looks after her grandchildren. She testified about an incident after the
accident when she took the children to a park and forgot them there as a result
of which her daughter would not let her see them for a period of time.

[85]        
Ms. Cornish testified that she has a number of other health issues. She
has suffered from hypertension for some time and takes medication for that
condition. She said that she has stage 3 chronic kidney disease,
gastroesophageal reflux disease and asthma. In addition, she said she has been
told that she suffered a mild stroke in 2012 and another one more recently. Ms.
Cornish said that further tests are scheduled with respect to her heart.

[86]        
Ms. Fraser-Biscoe testified about changes that she has observed in Ms. Cornish
following the accident. She said that Ms. Cornish has memory issues, often
forgetting conversations that they recently had. She told of one incident in
which they were going ghost hunting but Ms. Cornish could not remember how to
get to the graveyard in Fort Langley, although they had been there numerous
times.

[87]        
She described Ms. Cornish’s demeanour as changing significantly. According
to Ms. Fraser-Biscoe, Ms. Cornish is now very short tempered and is always
unhappy. She no longer takes the same care with her appearance or with her home.
She seldom wants to do anything.

[88]        
Ms. Fraser-Biscoe described Ms. Cornish as a “totally different person”
after the accident and said that their relationship is not the same as it used
to be.

[89]        
Ms. Kyriakidis confirmed many of the changes in Ms. Cornish described by
Ms. Fraser-Biscoe. She noted in particular that Ms. Cornish has problems with
her memory which causes her to get frustrated. She testified about one incident
when Ms. Cornish forgot a pot on the stove at Ms. Kyriakidis’ house causing it
to burn, with the result that the pot had to be thrown out. She said that Ms.
Cornish is less sociable now and also less physically active.

[90]        
However, Ms. Kyriakidis said that Ms. Cornish’s physical condition has
improved significantly since the time right after the accident. She also said
that while Ms. Cornish seems less interested in some of her former activities,
she is capable of cooking, caring for herself and managing her own affairs.

[91]        
Dawn testified that since the accident, her mother is often forgetful
and short tempered. She gave an example of one incident when Ms. Cornish lost a
carry bag full of jewelry and other valuables, which she took with her
everywhere, when she left it in the parking garage of her apartment complex. She
testified about other incidents when Ms. Cornish would forget previous
conversations, resulting in angry outbursts.

[92]        
As noted above, prior to the accident, Ms. Cornish often cared for her
grandchildren however Dawn says that she no longer trusts her mother to do so. She
gave an example of a time when Ms. Cornish forgot to pick up her daughter from
a summer camp. She also said that Ms. Cornish gets angry and frustrated with her
grandchildren, which never happened previously.

[93]        
Dawn also testified about a few incidents when she took Ms. Cornish to
events that she was organizing to help with things like face painting. According
to Dawn, she had to stop that because Ms. Cornish often got angry with the
children and scared them.

[94]        
Dawn said that since the accident, her mother is less active, has put on
weight and pays less attention to her appearance.

[95]        
She also said that it is unlikely that Ms. Cornish could come and live
with her family in the future given her present difficulties.

[96]        
Mr. Suelzle again confirmed much of what his wife had to say about
Ms. Cornish’s post-accident condition although it is apparent that he saw
Ms. Cornish much less frequently than Dawn saw her. Mr. Suelzle also that
he would not be comfortable with Ms. Cornish living with his family in the
future.

The Medical Evidence

Dr. Werner Gerntholtz

[97]        
Dr. Werner Gerntholtz is the emergency room physician who saw Ms.
Cornish when she went to Surrey Memorial Hospital after the accident. Again,
Ms. Cornish did not go immediately to the hospital but went first to her friend
Mr. Piner’s house. According to the clinical record completed by Dr.
Gerntholtz, Ms. Cornish arrived in the emergency department at 10:34 a.m., was
triaged at 11:32 a.m. and was seen by Dr. Gerntholtz at 1:25 p.m.

[98]        
Dr. Gerntholtz has no independent recollection of seeing Ms. Cornish and
his evidence in chief was limited to interpreting his clinical notes. According
to Dr. Gerntholtz, Ms. Cornish’s principal complaints were lower back and
neck pain. He also specifically recorded no loss of consciousness and no head
injury, although he did note that she reported feeling light headed.

[99]        
Dr. Gerntholtz testified that his notes reflect a combination of what the
patient tells him and what he observes. On the issue of whether Ms. Cornish
lost consciousness, he said that he would have asked this question of Ms.
Cornish and recorded her response. He agreed however in cross-examination that
the only way to say for certain if a patient lost consciousness in an accident
would be to actually observe the patient at the accident scene.

Dr. Shelaish Desai

[100]     Dr.
Shelaish Desai is a general practitioner and has been Ms. Cornish’s primary
care physician since July 2010. Dr. Desai prepared a medical report dated
October 26, 2011.

[101]     Dr. Desai
first saw Ms. Cornish on July 6, 2010, almost six months after the accident. Ms.
Cornish saw a different doctor shortly after the accident, but she disagreed
with something that he reported in an insurance form and was concerned that he
did not understand her. She therefore began seeing Dr. Desai instead.

[102]     At her
first visit with Dr. Desai, Ms. Cornish reported symptoms of headache, shoulder
pain, neck pain, neck stiffness, dizziness, blurred vision, ringing in her ears
and back pain. She also complained of memory problems and difficulty
concentrating.

[103]     Dr. Desai
said that he saw Ms. Cornish a total of 15 times from July 2010 to October 2011.
By October 2011, there had been some improvement in Ms. Cornish’s physical
condition in terms of pain, but she continued to complain of headaches,
dizziness, confusion and memory loss. She also had symptoms of anxiety and
depression.

[104]     In his
report, Dr. Desai opined that Ms. Cornish had ongoing concussion symptoms
related to the accident. He was unable to offer a long-term prognosis.

[105]     Dr. Desai
testified that after October 2011, he did not see Ms. Cornish again until she
returned for a few visits in June 2014. According to Ms. Cornish, she went to a
doctor closer to home during that interim period. Dr. Desai said that when he
saw her in June 2014, there was no significant change in what he observed or in
the complaints that she described.

Dr. Amita Ghandi

[106]     Dr. Amita
Ghandi is a psychiatrist to whom Ms. Cornish was referred by Dr. Desai. She
prepared a consult report for Dr. Desai dated May 20, 2012, which was based on one
visit with Ms. Cornish.

[107]     Dr. Gandhi
was not tendered as an expert witness and as such her evidence was limited to
describing her observations made during her visit with Ms. Cornish and her
record of what Ms. Cornish complained of during the visit.

[108]     She noted
that Ms. Cornish reported problems with concentration and memory as well as
dizziness, but also noted that cognitive functions appeared to be intact. Dr.
Gandhi recommended a further neuropsychological assessment.

Dr. Mark Riley

[109]     Dr. Mark
Riley is a psychiatrist who examined Ms. Cornish at the request of the
defendants. Dr. Riley prepared a report dated May 26, 2014 which was served on
the plaintiff in accordance with the Supreme Court Civil Rules, B.C.
Reg. 168/2009 (the “Rules”). He also prepared an addendum report dated
August 15, 2014, which was not served. During the trial however, counsel for
the defendants advised counsel for the plaintiff that he was not calling Dr. Riley
as a witness. Counsel for the plaintiff therefore sought and was granted leave
to serve Dr. Riley’s report and to call Dr. Riley as a witness in the
plaintiff’s case. Counsel for the defendants did not object to proceeding in
this fashion.

[110]     Of all of
the medical evidence, which I would note is somewhat thin for a case of this
nature, Dr. Riley provides the most comprehensive assessment of Ms. Cornish’s
medical history and current condition.

[111]     In terms
of history, Dr. Riley notes from his review of her medical records that Ms.
Cornish developed an extreme chronic pain syndrome as a result of her work
injury and that this pain was associated with a marked alteration in her mood
and emotional functioning, including depression, anger and anxiety.

[112]     As for her
condition at the time of his assessment on May 26, 2014, Dr. Riley was of the
opinion that Ms. Cornish meets the DSM-5 diagnostic criteria for Major
Depressive Disorder which is recurrent and of moderate severity. In his
testimony, Dr. Riley said that “moderate” severity means that it affects her
daily in her work and social activities but is not incapacitating. His
description of her condition being recurrent refers to the fact that she has
had previous incidents of depression.

[113]     According
to Dr. Riley, Ms. Cornish also meets the DSM-5 diagnostic criteria for Somatic
Symptom Disorder. He describes her as being preoccupied and anxious about her
pain symptoms which have taken centre stage in her life.

[114]    
As part of his instructions, Dr. Riley was asked his opinion on whether
the accident caused or contributed to Ms. Cornish’s current condition. In response
to this question, he stated in his report:

The motor vehicle accident has aggravated Ms. Cornish’s
pre-existing back pain and the somatic symptom disorder she now appears to
suffer from is similar to the chronic pain syndrome diagnosed by Dr. Deborah
Kerr in 2000.

Ms. Cornish reported that she was
happy prior to her accident in 2010 despite some limitations to her
occupational functioning but [in] the absence of any detailed medical records
covering the period from 2004 to 2010 I am unable to conclude that her
depressive and somatic symptom disorders were in full remission prior to her
accident. However, I am also unable to conclude that Ms. Cornish was suffering
from a somatic symptom disorder and/or a depressive disorder immediately prior
to the accident. Despite this uncertainty over the extent to which she may have
had symptoms of these disorders prior to her accident it is reasonable to
conclude that the accident either precipitated a relapse or exacerbated
pre-existing symptoms of these disorders.

[115]    
Dr. Riley went on to say:

Ms. Cornish’s pre-existing
problems would have persisted in the absence of the motor vehicle accident, but
there is no clear indication that these were a significant factor immediately
prior to the accident. However, her vulnerability was such that any significant
stressor could have caused an exacerbation of these problems in view of the
severity and persistence of those issues from 1992 until at least 2004.

Subsequent Emergency Room Visits

[116]     Two other
physicians testified briefly about emergency room visits made by Ms. Cornish,
the first on September 15, 2012 to Langley Memorial Hospital, and the second on
September 17, 2012 to Peace Arch Hospital. The emergency room form prepared on
September 15, 2012 records Ms. Cornish complaining of low back pain for nine
weeks following a fall. The September 17, 2012 emergency room form records a
fall off a curb on September 15, 2012 but then also notes right hip pain from a
fall two – three weeks previously. The emergency physician could not explain
this apparent discrepancy.

[117]     As I
understand it, the defendants rely on the evidence of these two visits to
suggest that Ms. Cornish may have been hurt in a fall subsequent to the
accident. They point to the fact that while both emergency forms refer to
depression under the heading of patient history, there is no reference to Ms.
Cornish’s other pain complaints.

[118]     However,
in my view, given the nature of emergency room practice, as noted by the two
physicians, and the limited purpose of the emergency room clinical records, it
cannot be inferred that Ms. Cornish was free of her accident-related pain
complaints or that the fall, if that is indeed what occurred, is a cause of her
ongoing problems.

Liability

[119]     A
number of provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the
MVA] are relevant to the liability analysis. Section 174 deals with
vehicles turning left across traffic:

Yielding right of way on left turn

174 When a vehicle is in an intersection and its
driver intends to turn left, the driver must yield the right of way to traffic
approaching from the opposite direction that is in the intersection or so close
as to constitute an immediate hazard, but having yielded and given a signal as
required by sections 171 and 172, the driver may turn the vehicle to the left,
and traffic approaching the intersection from the opposite direction must yield
the right of way to the vehicle making the left turn.

[120]    
Sections 128 and 129 deal with yellow and red lights. The relevant
portions state:

Yellow light

128 (1) When a yellow
light alone is exhibited at an intersection by a traffic control signal,
following the exhibition of a green light,

(a) the driver
of a vehicle approaching the intersection and facing the yellow light must
cause it to stop before entering the marked crosswalk on the near side of the
intersection, or if there is no marked crosswalk, before entering the
intersection, unless the stop cannot be made in safety,

Red light

129 (1) Subject to subsection
(2), when a red light alone is exhibited at an intersection by a traffic
control signal, the driver of a vehicle approaching the intersection and facing
the red light must cause it to stop before entering the marked crosswalk on the
near side of the intersection, or if there is no marked crosswalk, before
entering the intersection, and subject to the provisions of subsection (3),
must not cause the vehicle to proceed until a traffic control signal instructs
the driver that he or she is permitted to do so.

[121]    
In Lee v. Tse, 2013 BCSC 1740, Madam Justice Fleming summarized
the effect of these sections as follows at para. 48:

In summary then, the MVA
requires a left turning driver to yield to oncoming traffic that is in the
intersection or so close as to constitute an “immediate hazard.” A driver
facing a yellow light must stop before entering an intersection unless the stop
cannot be made in safety. A driver must not enter an intersection on a red
light.

[122]    
However, Madam Justice Fleming reviewed a number of authorities dealing
with the obligations of a left turning vehicle and stated that the duties in s.
174 are not absolute, and are subject to what is reasonable in the
circumstances (at para. 49):

The duty on a left turning driver
pursuant to section 174 of the MVA is not absolute. It is well
established that left turning drivers are entitled to rely on the assumption
that other drivers will obey the rules of the road, absent any reasonable
indication to the contrary. In particular, a left turning driver is not
required to wait until he or she sees that all approaching drivers have
stopped:

[123]     Her review
of the authorities also led her to conclude that “[t]he weight of the authorities
dealing with left turning drivers who commence their turn on a stale yellow or
red light is to find the straight through driver entirely at fault” (para. 55).
See for example: Kokkinis v. Hall (1996), 71 B.C.A.C. 97, 19 B.C.L.R.
(3d) 273 and Henry v. Bennett, 2011 BCSC 1254.

[124]     An
exception to that line of authorities exists when it can be shown that both
drivers breached their statutory duties and that both caused or contributed to
the accident: see for example Ziani v. Thede, 2011 BCSC 895 [Ziani]
and Shirley v. Regier (1997), 70 A.C.W.S. (3d) 826, [1997] B.C.J.
No. 1035 [Shirley].

[125]     In the
case at bar, Ms. Cornish was adamant in her evidence that she entered the
intersection on a green light. Mr. Khunkhun was equally adamant that he waited
until the light facing him turned red before he commenced his turn.

[126]     I find
that both are mistaken in their recollection. According to information provided
by the City of Surrey, entered into evidence by consent, once the traffic light
controlling east and west bound traffic on 72 Avenue turns yellow, there are
6.5 seconds of combined yellow and red signals before the light controlling
Scott Road turns green. Thus even if Ms. Cornish’s light turned yellow at the
exact moment she entered the intersection, she would have had 6.5 seconds to
clear the intersection. While there is no evidence as to how much ground she
would have covered in 6.5 seconds going at or below the posted speed limit, it
is fair to assume that she would have travelled beyond the centre of the
intersection which is where the accident occurred.

[127]     Given Ms.
Reimer’s evidence that the advance turn arrow facing her on Scott Road turned
green immediately after the accident, the only logical assumption is that Ms.
Cornish entered the intersection after her light had turned yellow. There is no
evidence indicating that she could not have safely stopped before entering the
intersection as contemplated in section 128 of the MVA. Thus I find that
Ms. Cornish was in breach of section 128(1) of the MVA.

[128]     Ms.
Reimer’s evidence also serves to call into question Mr. Khunkhun’s evidence. He
says he only started to turn after his light turned red. However, were that the
case, based on the information from Surrey which shows no gap in time between the
east/west light turning red and the north/south advance turn signal turning
green, the accident would have happened before Ms. Reimer’s light turned green,
not after, as she testified. I find that Mr. Khunkhun commenced his turn before
his light turned to red.

[129]     On his own
evidence, Mr. Khunkhun did not see Ms. Cornish’s vehicle until virtually the
moment of collision. Thus it is apparent that he did not consider whether Ms.
Cornish’s vehicle constituted an immediate hazard within the meaning of section
174 of the MVA. Further, it is apparent from the point of impact of the
two vehicles, as noted by Mr. Pieschel, that Mr. Khunkhun’s vehicle struck Ms.
Cornish’s vehicle. This would support a finding that she was in the
intersection first and there to be seen had Mr. Khunkhun been paying proper
attention.

[130]     Thus,
based on the above, I find that the actions of both Ms. Cornish and Mr. Khunkhun
caused or contributed to the accident. Considering the parties’ respective
degrees of fault, and that both parties breached statutory duties under the MVA,
I find that this is a case, like Ziani and Shirley, where fault
should be apportioned equally.

Findings of Fact – Ms. Cornish’s Condition

[131]     The
evidence of Ms. Cornish’s condition was largely uncontradicted. I find that she
suffers from a Major Depressive Disorder, as found by Dr. Riley, as well as a
Somatic Symptom Disorder which results in her experiencing chronic pain. I also
find that she experiences confusion and memory loss which Dr. Riley notes is
consistent with her depressive disorder.

[132]     I also
find that Ms. Cornish’s injuries have had a significant impact on her enjoyment
of life. Her own evidence, and that of her supporting witnesses, paints a
compelling before and after picture of a once vibrant woman who, as Ms.
Fraser-Biscoe said, is now a different person.

Causation

[133]     A central
issue in this case is whether Ms. Cornish’s ongoing physical and psychological
symptoms were caused by the accident or are a continuation of her pre-existing
conditions that predate the accident. Also in issue is the interrelationship of
her pain complaints and her psychological condition.

[134]     It is well
established that the plaintiff must prove on a balance of probabilities that
the defendant’s negligence caused or materially contributed to an injury. The
defendant’s negligence need not be the sole cause of the injury so long as it
is part of the cause beyond the range of de minimus. Causation need not
be determined by scientific precision: see Athey v. Leonati, [1996] 3
S.C.R. 458, 140 D.L.R. (4^th) 235 at paras. 13 – 17 [Athey].

[135]     The
primary test for causation asks: but-for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but-for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: see Resurfice
Corp. v. Hanke, 2007 SCC 7, at paras. 21 – 23; Clements v.
Clements, 2012 SCC 32 at para. 8 [Clements].

[136]     Causation
must be established on a balance of probabilities before damages are assessed.
As McLachlin, C.J.C. stated in Blackwater v. Plint, 2005 SCC 58 at para.
78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: Athey.

[137]     As is also
noted in Clements at para. 9, the “but for” test must be applied in a
robust common sense fashion.

[138]     Where, as
here, a plaintiff has pre-existing conditions, the court must consider how
those conditions relate to the plaintiff’s current complaints. A defendant
tortfeasor is liable for all injuries caused by a tort even if those injuries
are more severe than might otherwise be the case due to the plaintiff’s pre-existing
condition (the “thin skull rule”). However, the defendant is liable only for
the injuries actually caused by the accident and not for any effects of the
pre-existing condition that the plaintiff would have experienced in any event
(the “crumbling skull rule”). Put another way, the defendant is liable for the
additional damage but not the pre-existing damage (Athey, at paras. 34 –
35).

[139]     The
evidence is clear that Ms. Cornish had previously suffered from symptoms of
depression and that she had a pre-existing back injury. With respect to the
depression, I am satisfied on the evidence that it was in remission at the time
of the accident and that her current psychological condition was caused by the
accident.

[140]     In terms
of her pain condition, prior to the accident Ms. Cornish’s back condition
caused some limitations with respect to her physical capacity, particularly as
it related to her work. She was only able to do light work. However, I accept
that the accident aggravated her condition and is the cause of her current
chronic pain or Somatic Symptom Disorder.

[141]     The cause
of Ms. Cornish’s confusion and memory loss is less clear as there is no
neurological evidence addressing these symptoms. However, I accept Dr.  Riley’s
opinion that her condition is related to her depressive disorder which I have
found was caused by the accident.

Damages

Non-pecuniary Damages

[142]     Ms.
Cornish seeks non-pecuniary damages in the amount of $200,000.00. She cites McLeod
v. Goodman, 2014 BCSC 839, supplemental reasons indexed at 2014 BCSC 1551; Dionne
v. Romanick, 2007 BCSC 436 and Fournier v. Stevenson Bros. Warehousing, 2003
BCSC 448 in support of her claim. Ms. Cornish also cites Dulay v. Lachance, 2012
BCSC 258 at para. 123 where the court noted that an injury to a person nearing
retirement is often more difficult to endure than a similar injury to a younger
person given that the older plaintiff’s activities may already be constrained
by age (citing in turn Fata v. Heinonen, 2010 BCSC 385 at para. 88).

[143]     The
defendants submit that a more reasonable award would be in the range of
$85,000.00 – $110,000.00. They cite the following authorities: Bjornson v.
Field, 2007 BCSC 1860, Edwards v. Marsden, 2004 BCSC 590, Drodge
v. Kozak, 2011 BCSC 1316, Mayervich v. Sadeghipour, 2012 BCSC 1624
and Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82.

[144]     Awards of
non-pecuniary damages in other cases provide a useful guide to the court,
however the specific circumstances of each individual plaintiff must be considered.
This is because any award of damages is intended to compensate for the pain and
suffering experienced by that specific plaintiff. Moreover, the compensation
award must be fair and reasonable to both parties; see Trites v. Penner,
2010 BCSC 882 at paras. 188 – 189; Miller v. Lawlor, 2012 BCSC 387 at
para. 109 citing Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229, 83 D.L.R. (3d) 452.

[145]    
The factors that the court must consider when assessing non-pecuniary
damages are well known and have been set out in a number of cases, including by
the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34 at para. 46. I
have taken those factors into consideration.

[146]     Given the
ongoing nature of Ms. Cornish’s symptoms and their impact on her enjoyment of
life, I find that a reasonable award of non-pecuniary damages is $160,000.00.

Past Income Loss and Loss of Future Earning Capacity

[147]     I will
deal with these two heads of damage together as Ms. Cornish’s claim under each
turns largely on her contention that but for the accident she would have
successfully launched her home care business.

[148]     Ms.
Cornish submits that prior to the date of the accident, she had taken real and
concrete steps to establish her business. She had a business plan based on her
experience in the home care field and her knowledge of the fees charged to
clients and the wages paid to employees. She had registered the business as a
proprietorship and had business cards printed. Ms. Fraser-Biscoe had agreed to
work for her, doing lighter night shift duties and she said that she had talked
to two other care aides who were willing to come and work for her. Ms. Kyriakidis
was going to do the books for the business.

[149]     Ms.
Cornish calculates that the annual gross profit that she would have realized
from the business was $111,090.43 based on three employees each working three
10 hour shifts per week plus two overnight shifts. Her calculation contemplates
charging clients $35.00 per hour during the day and $250.00 for an overnight
shift, while paying her employees $14.00 per hour during the day and $130.00 at
night. She includes an adjustment for the employer’s Canadian Pension Plan and
Employment Insurance contributions and holiday pay, each increased by 10% for
estimated accounting and administrative expenses.

[150]     Extrapolating
the $111,090.00 figure over the 4.75 years from the date of the accident to
trial results in a total claim for past wage loss of $527,680. If she was able
to increase the productivity level of her business by 50%, for example by
adding more staff and clients, Ms. Cornish submits that her loss would be
$791,519.00. These are gross figures that would require adjustment for income
taxes.

[151]     Ms. Cornish
uses the same methodology for calculating her claim for loss of future earning
capacity. Using the base figure of $111,090.00 results in a future loss claim
of $217,680.00 assuming that she would have operated the business only to age
65 with no increase over her initial projected productivity. Ms. Cornish
submits however that a more likely scenario is that would have operated the
business until age 70, which results in a claimed loss of $732,997.00 with no
increase in productivity or $1,099,495.00 if she increased productivity by 50%.
She also provides figures of $1,211,719.00 and $1,817,578.00 for what she
describes as the “possible but less likely” scenario that she would have worked
to age 75.

[152]     I would
note that there was no expert economic evidence adduced in support of these
figures, however the defendants did not take issue with the basic calculation. Rather,
their position is that Ms. Cornish’s claim that she would have successfully
launched her home care business and would have generated, at a minimum, gross
profits in excess of $100,000.00 is highly speculative, and indeed improbable,
given her work history and her various health issues unrelated to the accident.

[153]     The
defendants submit that the best indicator of what Ms. Cornish would have earned
but for the accident is what she earned before the accident when she returned
to working part time as a care aid for $10.00 – 12.00 per hour, with an annual
income of about $7,800.00.

[154]    
While actual lost income will some times be the most accurate measure of
the damages suffered under these heads, that is not always the case given that
the claims for income loss, both past and future, are in fact claims for loss
of capacity to earn. The Court of Appeal made this point in Ibbitson v.
Cooper, 2012 BCCA 249 at para. 19, citing its earlier decision in Rowe
v. Bobell Express Ltd., 2005 BCCA 141:

While in many cases the actual
lost income will be the most reliable measure of the value of the loss of
capacity to earn income, this is not necessarily so. A hard and fast rule that
actual lost income is the only measure would result in the erosion of the
distinction made by this Court in Rowe: it is not the actual lost income
which is compensable but the lost capacity i.e. the damage to the asset. The
measure may vary where the circumstances require; evidence of the value of the
loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop,
2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and
reasonableness of the award must be considered taking into account all the
evidence. An award for loss of earning capacity requires the assessment of
damages, not calculation according to some mathematical formula.

[155]    
The Court of Appeal has also articulated the principles that will govern
a claim for loss of earning capacity. In Morgan v. Galbraith, 2013 BCCA
305 [Morgan], the Court, citing its earlier decision in Perren v.
Lalari, 2010 BCCA 140 [Perren], described the approach to be taken
by the trial judge as follows at para. 53:

…in Perren, this Court held that a trial judge must first
address the question of whether the plaintiff had proven a real and
substantial possibility that his earning capacity had been impaired. If the
plaintiff discharges that burden of proof, then the judge must turn to the assessment
of damages. The assessment may be based on an earnings approach…or the capital
asset approach,

[Emphasis
in original.]

[156]     The
earnings approach is generally appropriate where the plaintiff has some
earnings history and where the court can reasonably estimate what his/her
likely future earning capacity will be. This approach typically involves an
assessment of the plaintiff’s estimated annual income loss multiplied by the
remaining years of work and then discounted to reflect current value, or alternatively,
awarding the plaintiff’s entire annual income for a year or two: Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, 53
B.C.A.C. 310 at para. 43 [Pallos]; Gilbert v. Bottle, 2011 BCSC
1389 at para. 233 [Gilbert]. While there is a more mathematical
component to this approach, the assessment of damages is still a matter of
judgment not mere calculation.

[157]     The
capital asset approach, which is typically used in cases in which the plaintiff
has no clear earnings history, involves consideration of a number of factors
such as whether the plaintiff:

i)       has
been rendered less capable overall of earning income from all types of
employment;

ii)     is less
marketable or attractive as a potential employee;

iii)    has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and

iv)   is less valuable to
herself as a person capable of earning income in a competitive labour market: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353. 35 A.C.W.S. (2d) 96 (S.C.) at para.
8 [Brown]; Gilbert at para. 233.

[158]     I have no
difficulty finding that Ms. Cornish has established a real and substantial
possibility that her earning capacity has been impaired by virtue of the
injuries suffered in the accident. Dr. Riley offered the uncontradicted opinion
that “Ms. Cornish has been unable to work since her accident in January 2010
and her prognosis for resuming employment is poor”. He went on to suggest that
her best case scenario for future employment was in a light clerical capacity.

[159]     That best
case scenario is however unrealistic in my view. Given the constellation of Ms.
Cornish’s physical, emotional and cognitive issues, I find that she is
unemployable in any capacity.

[160]     I do not
accept however that Ms. Cornish’s damages for past wage loss and loss of future
capacity should be measured by reference to her proposed home care business. I
agree with the defendants that Ms. Cornish has failed to prove a real and
substantial possibility that her business would get off the ground, let alone
succeed. I note that the “real and substantial possibility” test is
typically used, as in Morgan and Perren, to assess whether a
plaintiff has suffered a loss, as distinct from the measure of damages for that
loss. However, where the assessment of the loss turns on hypothetical events or
occurrences, such as the launch of a new and unproven business, the court must
determine whether there is a real and substantial possibility of those events
or occurrences materializing: Reilly v. Lynn, 2003 BCCA 49 at para. 101.

[161]     While I have
no reason to doubt the sincerity of Ms. Cornish’s hopes or intentions vis-à-vis
her proposed business, there are numerous factors that weigh against its likely
viability:

a)    Ms. Cornish’s
business plan was, at best, vague and ill-formed. There was no independent
evidence of the market for the services she was proposing to offer and she had
no clearly identified strategy for identifying and attracting clients;

b)    She had not done
or had done for her any detailed analysis of the costs of such an enterprise,
including overhead costs. She thought that she would simply run the business
out of her home with minimal costs;

c)     Other than
Ms. Fraser-Biscoe, who was only capable of doing light evening shift work, Ms.
Cornish had no other employees committed to the business. At best she said that
she had talked to two unnamed care workers who might be interested in joining
her;

d)    Ms. Cornish had
no recent experience managing a business. Her previous attempt to establish a
home care business failed and resulted in her declaring bankruptcy;

e)    She also had a
minimal work history prior to the accident. Following her workplace accident in
1992, she worked sporadically at various other positions at the hospital in
Sechelt but, on her evidence, none of those positions worked for her. She moved
to the Lower Mainland in 2000 and had no formal work until she returned to
working as a part time care aid in 2009; and

f)      Ms.
Cornish had multiple health issues unrelated to the accident, including a long
history of chronic pain and depression, the latter of which Dr. Riley said
would likely return with any significant stress.

[162]     Taking
account of these factors and the evidence as a whole, I conclude that there is
no basis for measuring Ms. Cornish’s past wage loss or loss of future earning
capacity by reference to what she might have earned in the home care business.

[163]     In my
view, the most likely course that Ms. Cornish would have followed but for the
accident, was to continue working part time as a home care aid. Given her
ongoing back issues relating to her previous work injury, as well as her other
health issues, it is unlikely that she would ever have returned to full-time
work.

[164]     Ms.
Cornish has provided a number of calculations that address various employment
scenarios. In terms of her past loss, the scenario that best accords with the
evidence is that, as noted, she would have continued to work part time. I
accept Ms. Cornish’s calculations, that again were not challenged, that her
loss on the basis of part time work at $11.95 per hour from the date of the
accident until trial totals $56,763.00. I award this amount for past wage loss.
This is a gross figure and the parties agreed that the appropriate adjustment
would be made by agreement following the release of these Reasons.

[165]     In terms
of her future loss, Ms. Cornish has provided present value calculations of
various scenarios. Again, the most likely scenario is that she would have
continued working as a part-time home care worker. Ms. Cornish testified that
she had no plans to retire at age 65. While this was in relation to her
proposed business, I think it is also reasonable to assume that she would have
continued working part time until age 70, if for no other reason that her
financial position would have required her to do so. I therefore accept Ms.
Cornish’s calculation based on continued part time work at $11.95 per hour to
age 70, which totals $78,848.00.

Loss of Housekeeping

[166]     It is well
established that the impairment or loss of one’s ability to do work within the
home is compensable as a pecuniary loss: McTavish v. MacGillivray et al., 2000
BCCA 164.

[167]    
In Westbroek v. Brizuela, 2014 BCCA 48 at paras. 77 – 79, the
Court of Appeal recently reaffirmed the cautionary approach to damage awards
under this head articulated by Mr. Justice Gibbs in Kroeker v. Jansen (1995),
4 B.C.L.R. (3d) 178, 58 B.C.A.C. 1, leave to appeal ref’d [1995] S.C.C.A. No.
263, where he said at para. 29:

There is much merit in the
contention that the court ought to be cautious in approving what appears to be
an addition to the heads of compensable injury lest it unleash a flood of
excessive claims. But as the law has developed it would not be appropriate to
deny to plaintiffs in this province a common law remedy available to plaintiffs
in other provinces and in other common law jurisdictions. It will be the duty
of trial judges and this Court to restrain awards for this type of claim to an
amount of compensation commensurate with the loss. With respect to other heads
of loss which are predicated upon the uncertain happening of future events
measures have been devised to prevent the awards from being excessive. It would
be reasonable to expect that a similar regime of reasonableness will develop in
respect of the kind of claim at issue in this case.

[168]     I accept
that Ms. Cornish’s ability to perform housekeeping work has been diminished
somewhat by reason of the accident. However, the extent of that diminishment is
not entirely clear from the evidence.

[169]     Prior to
the accident, she was confined to light tasks only because of her previous work-related
injury. Further, the evidence of the lay witnesses was that since the accident,
Ms. Cornish continues to care for herself and for her apartment, although it
was generally agreed that her attention to detail in respect of these tasks is
less than what it was before the accident.

[170]    
Quantifying Ms. Cornish’s loss also presents difficulties similar to
those noted by Mr. Justice Johnston in Musgrove v. Elliot, 2013 BCSC
1707 where he said at paras. 92 – 93:

[92] Measuring this loss presents a different problem in this
case. There was no evidence as to the value of any of these services, whether
cooking, laundry or otherwise, and so no basis on which to evaluate either the
replacement cost or opportunity cost. I note that the court in McTavish
expressed a preference for the replacement cost approach over opportunity cost,
at paras. 48-49. Also, nothing has been paid out to replace Mr. Musgrove’s
contributions to household tasks, so that measure is not available.

[93] I am not prepared to pick a
figure out of the air, for either an hourly rate, or for length of time for
which replacement services might be reasonable. In Rezaei v. Piedade, 2012
BCSC 1782, the court accepted $15 per hour, partly because it had been used as
a measure in earlier decisions, but also because it accorded with evidence in
that case of what a witness paid for similar services. In Smusz v. Wolfe
Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the
plaintiff’s previous work as a housekeeper on which to value housekeeping or
cleaning services. I do not have such evidence in this case.

[171]     Based on
the paucity of evidence in that case, Mr. Justice Johnston awarded damages of
$5,000.00. While there is a similar lack of evidence in this case, Ms. Cornish’s
impairment is greater than that of the plaintiff in Musgrove and
accordingly, I think that an award of $10,000.00 is reasonable in the
circumstances.

Cost of Future Care

[172]     The
central thrust of Ms. Cornish’s claim for future care costs is that her care
needs would best be met in a residential care facility. She seeks an award of
damages in the range of approximately $1.2 – 2.0 million, with the lower figure
reflecting the cost of residential care to age 85 and the higher figure to age
105.

[173]     In support
of her claim, Ms. Cornish called Mr. Erroll Hastings as a witness. Mr. Hastings
is currently the executive director of Zion Park Manor, a residential care
facility located in Surrey.

[174]     The
defendants objected to Mr. Hastings’ testimony on the basis that it was, in
essence, opinion evidence for which the plaintiff had failed to provide proper
notice in accordance with the Rules. I permitted Mr. Hastings to testify
about the residential care system in B.C. based on his personal knowledge of
and experience in that system. However, Mr. Hastings was not permitted to, nor
did he purport to, offer any opinion about Ms. Cornish’s eligibility for
admission into a facility. Indeed, Mr. Hastings testified that he had never met
nor spoken to Ms. Cornish.

[175]     Mr. Hastings
testified about the operation and regulation of residential care facilities in
B.C. He explained the different types of care facilities, which range from
assisted living, where residents are largely able to care for themselves with
some assistance from staff with things like meal preparation and medication, to
more complex care facilities where residents require assistance with virtually
all aspects of daily living.

[176]     The
provincial Ministry of Health publishes a Home and Community Care Policy Manual
that sets out detailed requirements for the administration and operation of
care facilities. It also sets out guidelines for determining what type of care
facility might be appropriate for different types of individuals.

[177]     Mr.
Hastings identified a document known as the RAI MDS 2.0 assessment tool which
he said sets out a standardized process for assessing the care needs of
residents in care facilities. Generally speaking, it prescribes a number of
markers intended to assist an assessor in identifying issues with respect to
the resident’s cognitive, emotional and physical care needs.

[178]     In
cross-examination, Mr. Hastings explained further that the RAI MDS 2.0
assessment tool is used by facilities once a person has been admitted to the
facility to determine the most appropriate care plan for that person. Actual
admission to the facility is done by the provincial health authority in the
region in which the facility is located, which in Zion Park Manor’s case is the
Fraser Health Authority. According to Mr. Hastings, that assessment is
extensive and multi-faceted and involves input from a variety of different
health professionals.

[179]     Mr. Hastings
also gave evidence about the cost of care in his facility. The daily cost per
resident at Zion Park Manor is $198.00, although what residents actually pay
depends on a number of factors, such as the complexity of the required care and
the person’s income. Seventy of Zion Park Manor’s 99 beds are subject to some
form of provincial subsidy while the remaining 29 beds are private pay. The
subsidized beds are available to persons who meet certain provincial criteria. Zion
Park Manor charges $150.00-175.00 per day for the private pay beds, again
depending on the complexity of required care. According to Mr. Hastings, rates
will vary from facility to facility.

[180]     Ms.
Cornish bases her claim for damages reflecting the cost of long term
residential care on the fact that she says she meets a number of indicators set
out in the RAI MDS 2.0 for admission into care.

[181]     In my view
however, the evidence falls far short of establishing that Ms. Cornish is
eligible for such care, let alone that she requires it.

[182]     For one
thing, as noted above, the RAI MDS 2.0 is not in fact a tool for assessing
eligibility for admission to long term care. As Mr. Hastings testified,
admission into care is based on a multi-faceted evaluation by a number of
different professionals. No such evaluation was done in this case.

[183]     Further,
the courts have consistently held that there must be a medical justification,
based in the evidence, to support an award for the cost of future care: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 78 – 79, 84, 30 A.C.W.S. (2d) 257,
aff’d (1987), 49 B.C.L.R. (2d) 99, 6 A.C.W.S. (3d) 233 (C.A.); Courdin v.
Meyers, 2005 BCCA 91. Here, there is no evidence of a single medical
professional recommending such care.

[184]     Finally,
the evidence of the lay witnesses did not establish that Ms. Cornish is
incapable of living on her own or attending to her daily living requirements.

[185]     Dr. Riley
does recommend that Ms. Cornish have psychological counselling to address her
pain and her psychological condition. Specifically he recommends a preliminary
course of six to twelve one hour sessions with a registered psychologist plus a
further twelve sessions. He estimates the cost of these sessions to be $150.00 –
200.00. Dr. Riley further recommends that Ms. Cornish attend a
multidisciplinary pain clinic but he gives no estimate of the cost of such
treatment.

[186]     It is also
reasonable to expect that Ms. Cornish will continue to incur expenses for pain
medications, at least until she has the opportunity to obtain treatment for her
pain condition.

[187]     Based on
Dr. Riley’s recommendations, and allowing a reasonable amount for the cost of
medications, a fair award for cost of future care in my view is $12,000.00.

Special Damages

[188]     The
parties have agreed that Ms. Cornish is entitled to special damages in the
amount of $494.50.

Summary and Conclusion

[189]     In
summary, Ms. Cornish is entitled to the following:

[190]     The above
amount is reduced by 50% to reflect the equal apportionment of liability,
leaving a total award of $159,052.75. This figure will be revised further once
counsel agree on appropriate income tax adjustments to the past wage loss
award.

[191]    
Subject to any submissions that the parties wish to make, Ms. Cornish is
entitled to 50% of her costs at Scale B.

“Skolrood
J.”