IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150127

Docket: M123370

Registry:
Vancouver

Between:

Mary Joyce Valino

Plaintiff

And

Bok Wing Haley Chu
and Shui How Chu

Defendants

Before:
The Honourable Madam Justice Gerow

Reasons for Judgment

Introduction

[1]            
Mary Valino was involved in a motor vehicle accident on October 10,
2010. Ms. Valino alleges she suffered injuries to her right hand, neck and back
in the accident. She asserts the injuries have led to a partial disability, and
have impacted her ability to pursue a career as a mining engineer. She seeks general
damages for pain and suffering, damages for loss of future income earning
capacity and future cost of care. The parties have settled Ms. Valino’s claim
for special damages and damages for past loss of earnings.

[2]            
The defendants, Bok Wing Haley Chu and Shui How Chu, admit liability for
the accident, and concede that Ms. Valino sustained soft tissue injuries to her
neck and back, and an injury to her right hand. However, the defendants
disagree about the extent, seriousness and duration of her injuries. They take
the position that Ms. Valino has not established she has suffered any loss
of future income earning capacity, nor that she will require care in the future
as a result of the injuries she suffered in the accident.

Issues

[3]            
The issues are:

1)    What are the
nature, duration and extent of the injuries Ms. Valino suffered in the accident?

2)    What is the
appropriate award of general damages for pain and suffering?

3)    What amount, if
any, should be awarded for the future loss of income earning capacity?

4)    What amount, if
any, should be awarded for cost of future care?

[4]            
The parties agree Ms. Valino’s past loss of income, net of tax, is
$40,000. The parties agree Ms. Valino’s claim for special damages is $16,500.

Background

[5]            
Ms. Valino was 22 years old at the time of the accident and studying
mining engineering at the University of British Columbia. She was working as a
co-op student in what was to be a 12 month position, which commenced in September
2010.

[6]            
The accident occurred on October 10, 2010. Ms. Valino was the front seat
passenger in an SUV driven by the defendant, Bok Wing Haley Chu, travelling northbound
on Highway 40 near Grand Cache, Alberta. Mr. Chu admits he lost control of
his vehicle at a curve in the road. The vehicle left the highway and rolled a
number of times before coming to rest on its wheels. The front airbags deployed
and the SUV was a total loss.

[7]            
Ms. Valino remained in the vehicle for approximately 15-20 minutes prior
to being removed by emergency services. She was placed in a cervical collar,
put on a spine board and transported to Grand Cache Hospital. She was later
transported by helicopter ambulance to a hospital in Grande Prairie.

[8]            
Ms. Valino travelled back to Vancouver after her release from hospital
with her mother and brother, who travelled to Alberta to assist her. Following
the accident, Ms. Valino had to resign her co-op position because of her
injuries.

[9]            
Ms. Valino returned to school in January 2011, and she was able to
complete the term, with accommodations. Ms. Valino went on to complete her
engineering studies, including a co-op term at the Gibraltar mine near Williams
Lake, B.C. Ms. Valino graduated from the mining engineering program in May
2013.

[10]        
Ms. Valino obtained employment working at the Ekati Diamond Mine in the
Northwest Territories commencing in January 2014 as a graduate mining engineer.
She testified that she has trouble performing her job duties as result of the
ongoing symptoms she is suffering.

What are the Nature, Extent and Duration of the Injuries Ms. Valino Suffered
in the Accident?

Plaintiff’s Position

[11]        
Ms. Valino says the evidence at trial establishes that she suffered the
following injuries in the motor vehicle accident:

1)    Various bruises
and lacerations to her face, arms, waist, hips, chest wall and thighs, and a
black eye, all of which have resolved.

2)    A closed head
injury and two-inch laceration to her scalp. She is left with a scar and a bald
spot on her scalp. The wound site is sensitive to touch.

3)    Soft tissue
injuries and chronic pain to her neck, upper back, posterior shoulder/scapula
and low back, all of which are chronic and ongoing.

4)    A fracture and
lacerations of her right middle finger. The finger had to be fused, and there
is a permanent angulation deformity, pain, scarring, diminished motion in the
finger, and radiating pain, stiffness and weakness through the right hand,
wrist, and forearm causing permanent disability in her right hand.

5)    Mood
disturbance.

[12]        
Ms. Valino asserts that her chronic pain in her neck, back and shoulder
impacts on all of her activities of daily living, both at home and work. While
she has enjoyed periods of recovery, her recovery has plateaued. Since moving
to Yellowknife, her condition is not improving, but worsening.

[13]        
Ms. Valino’s evidence is that ongoing physiotherapy and daily exercise
are necessary to manage her ongoing pain and symptoms. The physiotherapy
treatments and her exercise program allow her to sit longer prior to experiencing
pain, and to manage flare-ups. Ms. Valino’s evidence is that she is unable to
tolerate pain medication because it upsets her gastrointestinal system. She
takes Advil or Tylenol every few weeks during more severe flare-ups of pain.

[14]        
Ms. Valino’s prognosis for future recovery is guarded. Given that it is
now four years post-accident, the consensus of the experts and her health care
providers is to focus on symptom management.

[15]        
As a result of her chronic neck, shoulder and back pain, and the
permanent disability to her dominant right hand caused by the fusing of her
middle finger, Ms. Valino is now, and for the future, limited in the type
of work she can do. As well, she is limited in her activities of daily living,
including day-to-day activities around the house such as cleaning, cooking, and
recreational activities.

[16]        
Ms. Valino says the medical evidence establishes that it is likely she
will have to continue her exercise and stretching regime for symptom management
of her back, neck and shoulder for the rest of her life.

[17]        
As well, the evidence establishes that Ms. Valino has suffered
psychological and emotional injuries flowing from the accident and injuries.
Ms. Valino says she has a reasonable reactive mood disturbance to the pain and
disability she suffers from. She gets irritable and has anxiety regarding her
future as a mining engineer. Following the accident, she had nightmares. She
has become hyper-vigilant as a passenger riding in a car.

Defendants’ Position

[18]        
The defendants agree that Ms. Valino suffered soft tissue injuries to
her neck, and upper and lower back in the accident. As well, they concede that
Ms. Valino has a permanent partial disability in her right hand as a
result of the fused right middle finger.

[19]        
The defendants say there is consensus among the experts that Ms. Valino
will not suffer any deterioration in her condition. Early on in her visits to
Dr. Wee, her family doctor, Ms. Valino reported “marked improvement” of her
back and neck symptoms.

[20]        
Some of the experts expect further improvement to Ms. Valino’s neck,
back and shoulder. The defendants say the fact that Ms. Valino often spends her
time off work in Yellowknife and does not get any physiotherapy treatment or
other treatment while there, and rarely takes pain medication, indicates that
her condition is continuing to improve.

[21]        
Ms. Valino’s finger affects her ability to grasp heavier items or
perform fine work. The defendants concede that Ms. Valino’s neck and upper back
become painful with prolonged sitting or standing, which she deals with by
stretching or changing position.

[22]        
The defendants concede Ms. Valino will continue to have intermittent
neck and back symptoms and may need to get up and move around, but say that she
is managing well as evident from the fact she has been working for over a year
in a very demanding position. Dr. Wee’s report and history obtained from Ms.
Valino over the four years since the accident shows marked improvement with
occasional flare-ups.

Relevant Law

[23]        
In order to establish causation Ms. Valino must prove on a balance of
probabilities that but for the accident she would not have suffered the injury she
complains of.

[24]        
The Supreme Court of Canada considered causation in Clements v.
Clements, 2012 SCC 32. The Court confirmed that the basic test for
determining causation remains the “but for” test articulated in Snell v.
Farrell, [1990] 2 S.C.R. 311, and Athey v. Leonati, [1996] 3 S.C.R.
458. The plaintiff bears the burden of proving that but for the negligent act
or omission of the defendant the injury would not have occurred.

[25]        
In Athey at 473, the Court states that the
general rule is the plaintiff must be returned to the
position he or she would have been in, with all of its attendant risks and
shortcomings, and not a better position.

Application of the Law to the Facts

[26]        
As stated earlier, the defendants concede that the accident caused the
injuries complained of, and that Ms. Valino suffers from some residual
problems. They concede that Ms. Valino has suffered a permanent partial
disability of her right hand as a result of the motor vehicle accident. As
well, they agree that Ms. Valino suffered a laceration to her scalp which has
left a scar with a bald spot. However, the defendants take issue with Ms.
Valino’s position that her back, neck and shoulder symptoms are continuing to
impair her work, household and recreational activities.

[27]        
All of the doctors who examined Ms. Valino agree she injured her neck,
upper and lower back, and hand, in the accident. The evidence is Ms. Valino has
sought ongoing physiotherapy treatment for pain and symptoms from the injuries
for her neck, shoulder, upper and lower back since the accident.

[28]        
 Dr. Mark Adrian, an expert in physical medicine and rehabilitation, was
retained by Ms. Valino’s counsel to conduct an independent medical examination
of Ms. Valino. He examined Ms. Valino on two occasions; October 17, 2011 and
November 1, 2013. Dr. Adrian provided two reports and testified regarding his
findings and diagnosis.

[29]        
In 2011, Dr. Adrian diagnosed Ms. Valino with mechanical neck, mid and
lower back pain, a fracture of her right finger joint, and fusion of the finger
due to the fracture. Dr. Adrian’s opinion was that her complaints of difficulty
in her neck, back, and hand were consistent with his physical findings. Dr.
Adrian found that Ms. Valino suffered from persistent pain in her neck,
and mid and lower back as a result of the injuries she sustained in the
accident.

[30]        
Dr. Adrian’s prognosis in 2011 was that full recovery of the symptoms
over time was guarded but there may be some improvement over the next year. In
his opinion it was unlikely the injuries would undergo progressive
deterioration.

[31]        
Dr. Adrian’s opinion was Ms. Valino’s functional capacity was impacted
as she would likely continue to have difficulties with activities that require
heavy or repetitive lifting, prolonged static or awkward positioning involving
her spinal column, prolonged sitting or standing, and impact activities. As
well, she would probably experience difficulty performing activities that
require gripping with her right hand, or fine motor control using her middle
finger. Dr. Adrian recommended Ms. Valino continue with her physiotherapy and
exercise program.

[32]        
As noted earlier, Dr. Adrian provided a second report dated November 1,
2013, after seeing Ms. Valino again. In the second report, Dr. Adrian notes
there was some improvement in Ms. Valino’s condition since 2011. In 2013, Ms.
Valino’s most dominant complaint of pain involved the base of her neck. The
neck symptoms were more dominant on the right side than the left, and spread to
the upper shoulder girdles and upper back.

[33]        
Dr. Adrian affirmed his findings in his first report. He found Ms.
Valino was still experiencing clinical features consistent with suffering
physical forces to her spinal column during the accident that caused an injury
resulting in persistent and regularly occurring spinal pain symptoms. Dr.
Adrian found the most physically limiting problem was in her neck and upper
back. In Dr. Adrian’s opinion, the prognosis for future recovery is poor;
although it was unlikely the injuries to her spinal column will undergo
progressive deterioration.

[34]        
In Dr. Adrian’s opinion it is probable that Ms. Valino will continue to
experience difficulty in performing employment, recreational, household, and
scholastic activities due to the injuries to her spinal column. She will have
difficulty performing activities that involve prolonged sitting, crouching,
standing or stooping, impact activities, heavy or repetitive lifting, or
repetitive reaching with her right upper extremity. Dr. Adrian opines that Ms.
Valino is probably permanently partially disabled as a result of injuries she
suffered in the motor vehicle accident. As well, Dr. Adrian is of the opinion
that Ms. Valino will probably continue to experience difficulty performing
activities that require prolonged or repetitive gripping or fine motor control
with her right hand.

[35]        
Dr. Adrian again recommended that Ms. Valino continue with a
physiotherapy program to assist with pain management and temporarily assist
with her symptoms. When Dr. Adrian saw Ms. Valino in November 2013, she was
involved in a job search. He was of the opinion that she would probably require
modification of her work environment due to her injuries. Dr. Adrian
recommended that once she found suitable employment, Ms. Valino would benefit
from an occupational therapist performing a work site visit to optimize the
ergonomic set-up for her work station.

[36]        
Dr. Peter Gropper, an orthopaedic surgeon, was retained by Ms. Valino to
provide an independent medical opinion regarding the injuries to the middle
finger on her right hand. He provided two reports dated April 28, 2011 and
September 12, 2013. He did not testify at the trial.

[37]        
Dr. Gropper first saw Ms. Valino six months post-accident. At the time,
he diagnosed Ms. Valino with a fracture of her right long finger resulting in
joint instability. Ms. Valino was suffering from severe post-traumatic stiffness
and angulation deformity caused by a joint irregularity. He recommended that
the best treatment for Ms. Valino was a joint arthrodesis or fusing. Joint
replacement was discussed, but Dr. Gropper’s opinion was that the results for
joint replacement were very unpredictable. He expressed concern about the long
term benefit and likely failure of a joint implant arthroplasty within five to
seven years, necessitating further surgery.

[38]        
Ms. Valino’s finger was fused on August 19, 2011. Dr. Gropper saw
Ms. Valino again in September 2013. At that time, Ms. Valino reported she
was suffering from persistent stiffness in the right long finger, as well as a
loss of range of motion and pain in the adjacent fingers. Dr. Gropper found Ms.
Valino had a deformity of the proximal interphalangeal (PIP) joint of the right
finger as a result of it being fused, with loss of flexion. Dr. Gropper’s
opinion is the fusion is stable and is not at risk of deterioration in the
future. In his opinion, Ms. Valino has a permanent impairment to her right
hand, and specifically the right long finger, as a result of the stiffness in
both the proximal and distal interphalangeal joints.

[39]        
Dr. Wee, Ms. Valino’s family doctor, prepared a report dated September 5,
2014, and testified at the trial. Ms. Valino initially attended his office on
October 18, 2010, eight days after the motor vehicle accident. His
evidence is that Ms. Valino had no pre-existing injuries.

[40]        
At the time of the first visit, Ms. Valino still had bruising and
contusions. Although he reports from time to time in his clinical records that Ms.
Valino is not reporting any back problems and she has had marked improvement,
Dr. Lee’s evidence at trial was that he was aware she has had chronic ongoing
neck and back pain since the accident, and has attended physiotherapy for
treatment since the time of the accident.

[41]        
It is clear from reviewing his report that Ms. Valino complained to Dr. Wee
of recurrent back pain from the time of the accident until her last visit in
September 2014. In Dr. Wee’s notes there are comments that she has improved
with physiotherapy, but there are also notes in 2011, 2012, 2013 and 2014 that
she was complaining of back pain. Dr. Wee confirmed he has recommended that Ms.
Valino continue with physiotherapy to reduce her pain and make her more
functional, since the time of the accident to present. At trial, Dr. Wee
agreed that physiotherapy is recommended as long as Ms. Valino continues to
experience pain.

[42]        
Although in his report Dr. Wee gives a favourable prognosis for further
recovery of her upper and lower back pain with ongoing physiotherapy, Dr. Wee
indicated he would defer to the orthopaedic surgeons and physical medicine and
rehabilitation specialist regarding the future prognosis for Ms. Valino’s
ongoing problems with her neck, back, and hand.

[43]        
Dr. Barry Vaisler is an expert in orthopaedics and hand surgery who was
retained by the defendants to conduct an independent medical examination of Ms. Valino.
Dr. Vaisler prepared a report dated April 22, 2013, but did not testify at the
trial. Dr. Vaisler examined Ms. Valino on March 15, 2013, and reviewed a number
of documents.

[44]        
Dr. Vaisler’s opinion is that:

Mary Valino most probably
sustained a laceration to her scalp, a facial injury and chest contusion, a
soft tissue injury to her neck, upper back and lower back, probable mild subacromial
impingement of her right shoulder, a stiff right index finger and a compound
fracture dislocation of the PIP joint of her right middle finger as a result of
the motor vehicle accident of October 10, 2010.

[45]        
Dr. Vaisler is of the opinion that given the persistent nature of her
upper and lower back pain, it is more likely than not, Ms. Valino is going to
have continuing intermittent annoying, and possibly disabling, neck and upper
and lower back pain from time to time with certain activities. Those activities
include sitting and standing with the head flexed forward, extremes of movement
of the neck, heavy lifting and heavy labour, with resulting fatigue at the end
of the day, and increased psychological tension. Dr. Vaisler also opines that
it is a little more likely than not Ms. Valino will experience right shoulder
pain in the future with sustained or repetitive reaching with her dominant
right upper limb.

[46]        
Dr. Vaisler also provided an opinion regarding Ms. Valino’s index and
middle fingers on her right hand. He noted she had objective stiffness in her
right index finger and recommended physiotherapy. Dr. Vaisler’s opinion was
that fusion was the best option for Ms. Valino because of her young age. Fusion
results in almost complete pain relief but will impact Ms. Valino’s grip and
grasp activities, and result in a marked functional disability in the hand.
Wide grasp is difficult and the middle finger is eliminated from grip
activities with a marked loss of grip strength. The ability to hold small
objects in her right hand, and the hook function of her hand are also impaired.
Dr. Vaisler’s opinion is that the disability to Ms. Valino’s right hand is
unlikely to change in the foreseeable future, and she has a permanent
disability to that hand.

[47]        
Dr. Bernard Tessler, a medical practitioner with a speciality in
neurology, was retained by the defendants to perform a document review, and
provide an opinion. Dr. Tessler provided a report dated October 28, 2013, and
did not testify at the trial. In his report, Dr. Tessler summarizes the various
clinical records and provides an opinion, based on his record review, that Ms.
Valino sustained a closed head injury with a scalp laceration. Dr. Tessler
notes that while Ms. Valino appears to have sustained a significant head injury,
she does not appear to have sustained a concussive injury. Based on his review
of the records Dr. Tessler is of the opinion there was no indication Ms. Valino
suffered a traumatic brain injury (concussion) and there is no documentation of
any ongoing neurological symptoms to suggest a concussive injury.

[48]        
Dr. Kevin Solomons, an expert in psychiatry, was retained by the
defendants to conduct an independent medical examination of Ms. Valino. Dr.
Solomons interviewed Ms. Valino on April 17, 2014, and authored a report dated
April 26, 2014, but did not testify at the trial.

[49]        
Dr. Solomons’ opinion is that Ms. Valino sustained a head injury in the
form of a large scalp laceration, but did not sustain a traumatic brain injury,
and did not develop any neurocognitive impairments as a result of the accident.
Dr. Solomons is of the opinion Ms. Valino did not develop any psychiatric
difficulties or disorders as a result of the accident. Dr. Solomons’ opinion is
that Ms. Valino was mildly and understandably stressed by her injuries, but she
does not require any psychiatric or psychological treatment as a result of the
accident.

[50]        
It is clear from a review of the reports that all of the doctors agree
that Ms. Valino sustained injuries to her head, neck, upper and lower
back, and her right hand in the motor vehicle accident. As well, she sustained
some contusions, a laceration to her scalp, and abrasions. As a result of the
accident, Ms. Valino has been left with a permanently disabled right dominant
hand, and chronic neck, shoulder and back pain.

[51]        
The defendants concede that Ms. Valino’s neck, and upper and lower back
pain are ongoing, as is apparent from Dr. Vaisler’s report. The defendants rely
on Dr. Wee’s report and clinical records to argue that Ms. Valino’s neck,
shoulder and back complaints have largely resolved except for occasional flare-ups.

[52]        
However, Dr. Wee’s evidence at trial was that Ms. Valino has complained
of recurrent neck, back and shoulder pain since the time of the accident, and
he has continued to recommend to Ms. Valino that she attend physiotherapy to
control the symptoms and allow her to function.

[53]        
Contrary to Dr. Wee’s notes of “no abnormal findings” on his
examinations of Ms. Valino, her treating physiotherapists Clare Palmer and Cheryl
Megalos both testified they found objective injury indicators including reduced
range of motion and palpable muscle spasms during the same time period.

[54]        
As well, as indicated earlier, Dr. Wee agreed he would defer to the
experts in orthopaedic surgery and physical and rehabilitation medicine
regarding any ongoing problems with Ms. Valino’s finger, neck and back.

[55]        
As set out earlier, the defendants’ expert, Dr. Vaisler, opined at the
time he examined Ms. Valino she was most probably disabled in regards to
activities involving heavy lifting and heavy labour due to the soft tissue
injuries to her neck and lower and upper back. His opinion was there could be
some improvement with treatment, but there was a definite possibility she will
continue to have a permanent disability regarding those activities in the
future. As well, Ms. Valino was probably disabled from activities that require
prolonged sitting, especially with her neck flexed forward due to her neck,
upper and lower back symptoms. Dr. Vaisler was of the opinion Ms. Valino was
most likely disabled from activities involving sustained or repetitive reaching
at and above shoulder level. He concluded Ms. Valino has a permanent disability
to her right hand which impacts her ability to grip, grasp and carry with that
hand.

[56]        
Dr. Adrian was also of the opinion that Ms. Valino is likely permanently
partially disabled. His opinion was that the prognosis for further recovery of
the injuries to the spinal column over time is poor.

[57]        
The consensus of the medical experts is that Ms. Valino has suffered a
permanent impairment to her right hand. There is no further treatment being
proposed from a curative or rehabilitative perspective but rather from a pain
and symptom management perspective. As noted in Dr. Vaisler’s report, Ms.
Valino is left with a permanent disability for work activities requiring power
or fine grip, and a permanent marked loss in grip strength and a permanent
moderate loss in grasp strength.

[58]        
Ms. Megalos testified she has provided approximately 80 physiotherapy
treatments to Ms. Valino since September 2011. The physiotherapy treatments are
not curative, but are aimed at keeping Ms. Valino moving and relieving some of
her symptoms. When Ms. Valino worked in a co-op position at the Gibraltar mine
following the accident, Ms. Megalos noted a change in her symptoms,
including more physical findings in the lumbar spine and around her neck and
shoulder. Ms. Valino also complained of pain in her wrist with prolonged
desk work, radiating pain and marked pain in her right wrist, forearm and up to
her shoulder. For the past year, since Ms. Valino started working at the Ekati
mine in the Northwest Territories, Ms. Megalos has treated Ms. Valino once
or twice a month, depending on when she can return to Vancouver. Ms. Megalos’
assessment is that Ms. Valino appears to be having more problems in her neck
and hand since starting work at the Ekati mine.

[59]        
There is also evidence that Ms. Valino has suffered from mood
disturbance as a result of the accident. Ms. Valino testified she gets
irritable and has anxiety about her future as a mining engineer. Dr. Wee’s
clinical records contain a number of notations that she is tearful and anxious,
and required reassurance. Ms. Valino’s brother, her boyfriend, and friends
all testified regarding her mood since the accident.

[60]        
Wendy Lu, another mining engineering student and friend of Ms. Valino,
testified that since the accident Ms. Valino has been prone to random outbursts
and crying, whereas before the accident she was “happy go lucky”, and not
subject to mood swings. Ms. Lu has not seen Ms. Valino since she moved to the
Northwest Territories.

[61]        
Travis Nguyen, another fellow classmate in the mining engineering
program, testified that Ms. Valino was moodier after the accident and less likely
to help him with his studies than before the accident.

[62]        
Mark Valino, Ms. Valino’s brother, testified her mood changed after the
accident. Ms. Valino suffered from nightmares for the first two years after the
accident. His evidence is that Ms. Valino is “sad and beat up” when she returns
home after her shifts at the Ekati mine, and the biggest change he has noticed
is the impact to Ms. Valino’s self-esteem.

[63]        
Dr. Adrian noted Ms. Valino has experienced emotional difficulties since
the accident. He indicated Ms. Valino reported she is irritable during flare-ups
of pain, and that her pain symptoms can affect her concentration.

[64]        
Dr. Gouws, a medical doctor with an expertise in occupational medicine,
commented on the emotional factors associated with the chronic pain Ms. Valino
is experiencing. Dr. Gouws noted that Ms. Valino is having emotional difficulties
and will have to come to terms with her disabilities. Her responses to the pain
questionnaires he administered indicated Ms. Valino was having difficulty with
pain focus and fear of re-injury. As well, he noted she was mildly depressed
and suffered from anxiety when driving.

[65]        
Dr. Solomons’ opinion is that Ms. Valino has suffered from some
depression and anxiety following the accident, as well as irritability. Dr.
Solomons’ opinion is that Ms. Valino is not psychiatrically or
psychologically impaired or disabled, and does not require any treatment in the
future.

[66]        
However, Dr. Solomons’ statement that Ms. Valino has spontaneously
recovered from her mood disturbance is not supported by the other evidence I
have outlined. As well, Dr. Solomons noted a number of instances where Ms.
Valino has expressed ongoing mood problems. Ms. Valino told Dr. Solomons she
could be irritable with her family when she is in pain, but that has lessened
because she no longer lives with them. It is apparent from Dr. Solomons’ notes
that Ms. Valino told him she continues to worry about what impact her injuries
will have on relationships, and her ability to have and care for children in
the future. Ms. Valino told Dr. Solomons her last two relationships were
impacted by the limitations she has as a result of the accident. As well, Dr.
Solomons reports that Ms. Valino is frustrated as a result of her pain.

[67]        
Having reviewed the medical evidence, I am of the view it supports Ms. Valino’s
evidence that she is having ongoing symptoms of pain in her neck, back,
shoulder and hand, as a result of the injuries she sustained in the accident, which
are continuing to impact her ability to perform tasks at home and work, and
participate in recreational activities. Although she has had some improvement
over time, Ms. Valino’s recovery appears to have plateaued. The consensus of
the medical experts is that Ms. Valino’s prognosis of future improvement
regarding her neck, shoulder and back is guarded. As well, the consensus of the
medical experts is that Ms. Valino has suffered a significant partial
disability to her right middle finger and hand. She also suffered permanent
scarring to her head and hair loss as a result of the accident.

[68]        
As well, the evidence supports a finding that Ms. Valino suffers from
some ongoing mood disturbance in the form of irritability, mild depression and
anxiety as a result of the accident.

[69]        
I find that but for the accident Ms. Valino would not be suffering from
the chronic pain in her neck, shoulder, back and hand, and the associated
ongoing mood disturbance.

What is the Appropriate Award of General Damages for Pain and Suffering?

Applicable Law

[70]        
A plaintiff is entitled to reasonable damages for her pain and
suffering. The plaintiff should be placed in the same position she would have
been if the accident had not occurred, but not in a better position: Parypa
v. Wickware, 1999 BCCA 88 at para. 29.

[71]        
In Stapley v. Hejslet, 2006 BCCA 34, the court noted that
a non-pecuniary award will vary to meet the specific circumstances of each
case, and set out the factors to be considered in making such an award, at
para. 46 as follows:

[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).

[72]        
Ms. Valino submits the appropriate amount for the award of general
damages is $150,000, given the injury she sustained to her right hand and the
chronic back, shoulder and neck issues she suffers. Ms. Valino argues that if
she had only chronic neck and back pain limiting her ability to sit or engage
in heavier physical activities, an award of $100,000 would be appropriate based
on similar cases such as Sunner v. Rana, 2014 BCSC 1379; Prince-Wright
v. Copeman, 2005 BCSC 1306; MacKenzie v. Rogalasky, 2011 BCSC 54
(rev’d on other grounds, 2014 BCCA 446); and McCarthy v. Davies, 2014
BCSC 1498.

[73]        
However, Ms. Valino says in addition to the chronic neck and back pain,
she sustained a very serious injury to her right hand. The right hand injury
adds another layer of pain and disability in addition to the pain of the
injuries to her neck and back, and an additional amount should be awarded for
the injury to her hand. Ms. Valino relies on the following cases as
support for her argument that an additional $50,000 should be awarded for the
injury to her hand: Lumanlan v. Sadler, 2008 BCSC 1554; Star v. Ellis,
2007 BCSC 512; Laberge v. Wagner, 2002 BCSC 843; Sandher v. Binning,
2012 BCSC 1000; and Simmavong v. Haddock, 2012 BCSC 473.

[74]        
The defendants rely on Dobre v. Langley, 2011 BCSC 1315; Lumanlan;
Tsougrianis v. Marrello, [1998] B.C.J. No. 2087 (S.C.); Leduc v. Toth,
[1997] B.C.J. No. 110 (S.C.); Sandher; Star v. Ellis, 2007 BCSC
512; Combs v. Moorman, 2012 BCSC 1001; and Keller v. White, [1996]
B.C.W.L.D. 709. The defendants submit the most similar case on the facts is Dobre,
in which a young person with professional aspirations suffered a permanent
injury to his dominant right hand and ongoing soft tissue injuries was awarded $70,000
(including $5,000 for loss of homemaking capacity). The defendants submit that
an award of $70,000 is an appropriate award under this head of damages.

Application of the Law to the Facts

[75]        
The defendants admit that Ms. Valino suffered soft tissue injuries to
her neck, upper and lower back, head and right hand in the accident. They point
to the fact that she did not suffer a concussion, nor any psychiatric injury
arising from the accident. The defendants concede Ms. Valino suffered a
permanent partial disability to her right hand as a result of having the middle
finger fused.

[76]        
The defendants submit there is a consensus amongst the medical experts
that Ms. Valino will not suffer further deterioration in her condition. The
defendants say some of the experts expect further improvement. They rely on Dr.
Wee’s opinion that Ms. Valino’s upper and lower back pains will continue to
improve with ongoing physiotherapy. However, as noted earlier, Dr. Wee
indicated that he would defer to the orthopaedic surgeons and experts in
physical medicine and rehabilitation regarding the long term prognosis for Ms.
Valino’s injuries.

[77]        
The defendants’ submissions and supporting cases are predicated on the
argument that Ms. Valino’s neck and back injuries caused by the accident are
largely resolved except for occasional flare-ups. The defendants argued that
Ms. Valino’s evidence regarding the impact of the injuries on her daily
activities was exaggerated. They also asserted that Ms. Valino had a tendency
to anticipate questions and be argumentative during cross-examination.

[78]        
However, I found Ms. Valino to be a straightforward witness. Any
inconsistencies in her evidence pointed to by the defendants were minor in
nature.

[79]        
Despite suffering fairly extensive and serious injuries in the accident,
Ms. Valino has persevered with her schooling and career plan. She deals
with daily neck and back pain, and has done so for four years. Her prognosis
for future recovery is poor. As well, as conceded by the defendants, Ms. Valino
has a serious partial disability to her right dominant hand.

[80]        
While the defendants point to the fact that Ms. Valino is able to work
an arduous schedule of 12-hour shifts, 14 days in a row, and has been doing so
for almost a year at the time of trial, I accept Ms. Valino’s evidence that she
does so at a cost. Her evidence in this regard is supported by the evidence of her
boyfriend, Chris Chan, who described how Ms. Valino has to sleep for a couple of
days at the end of her 14-day rotation, and her treating physiotherapist, Ms. Megalos.

[81]        
The defendants point to the fact that Ms. Valino does not take pain
killers and stays in Yellowknife during some of her breaks, instead of
returning to the lower mainland to seek treatment. However, Ms. Valino’s
evidence is that she has to limit pain killers because they upset her gastrointestinal
system.

[82]        
Ms. Valino has made many trips to Vancouver for treatment. She has
attended for physiotherapy treatments approximately 180 times since the
accident. As noted earlier, Ms. Megalos’ evidence is she currently treats Ms.
Valino once or twice a month when she can return to Vancouver.

[83]        
Ms. Valino’s evidence is that she is finding her current shift work of
12-hour shifts, 14 days in a row, very difficult, and is looking for a new
position where she can work shorter hours, with less sitting. She is looking
for a job that has shorter shifts and has a combination of field and desk work.

[84]        
It is clear from Ms. Valino’s evidence, as well as the evidence of her
friends, brother, boyfriend, treating health care professionals and the medical
experts, that she is suffering from ongoing symptoms in her neck, back and
hand.

[85]        
Prior to the accident Ms. Valino had no problems with her neck, back,
shoulder, head or hand. She was very young when she was injured, only 22 years
old. As noted earlier, it is unlikely her neck and back will improve
significantly, and the prognosis is that there will be no improvement in her
hand.

[86]        
As a result of the accident, Ms. Valino has been left with ongoing
chronic pain in her neck, back and shoulder which is unlikely to resolve, and a
permanent partial disability in her right dominant hand which impacts her
ability to grip and grasp.

[87]        
Ms. Valino had to make some serious decisions regarding the appropriate
treatment for her hand at a very young age. She had to decide whether to have a
toe amputated to replace her finger in the hopes of having some future
mobility, or have the finger fused. There was a third option which involved
having a joint replacement, however, according to Dr. Vaisler and Dr. Gropper,
there were significant concerns given Ms. Valino’s age about the long term
benefit, and the likely failure of the replacement joint within five to seven
years, necessitating further surgery.

[88]        
Ms. Valino has undergone four surgeries to her injured middle finger,
with the attendant pain and discomfort. Her right hand has required three years
of therapy, and she now suffers a permanent disfigurement in her right hand. As
Ms. Valino points out, her right hand is now disfigured in what many in our
culture regard as a rude gesture. The injury to her dominant hand impacts most
aspects of her life.

[89]        
As a result of her injuries Ms. Valino has not been able to return to some
of the recreational activities she enjoyed before, such as ultimate frisbee and
badminton. She is precluded from trying many new recreational activities such
as water skiing, racket sports and climbing, to name a few.

[90]        
Ms. Valino is worried about the impact her injuries will have on her
ability to care for children should she have them in the future. Her concerns
are well-founded in my view, given that she experiences difficulty in carrying
out many household functions such as cooking and cleaning, and is fatigued
easily.

[91]        
Ms. Valino is career driven, and the injuries are likely to impair her
ability to enjoy her job, as many of her work activities are now a source of
pain for her. Finally, Ms. Valino has been left with a scar that has created a
bald spot on her head.

[92]        
I have reviewed the cases provided. Each case has distinctive facts, and
it is often difficult to reconcile them as awards for pain and suffering are
individual in nature.

[93]        
Although the defendants argue that the facts in Dobre are similar
to this case, in my view the plaintiff’s injuries in that case were not as significant
as the injuries suffered by Ms. Valino. Mr. Dobre’s main complaint was an
injury to his right thumb which required one operation, not four as in this
case. As one of the experts stated, Mr. Dobre’s current thumb symptoms were
relatively limited in impact, but the experts were of the view that he would
have some worsening of his degenerative arthritis within 15 years. However, the
court found there was also a chance he could make his way into his middle years
without experiencing a significant decline in function. There was some risk he
would require further surgery to his thumb. The prognosis for the eventual
resolution of the soft tissue injuries to his back was favourable, and there
was no mention of any ongoing back problems in the award of non-pecuniary
damages.

[94]        
The defendants also rely on Combs, in which the award for general
damages was $90,000. However, in my view, the damages do not appear to be as
significant. In Combs, the court found the injury to the plaintiff’s
hand and a hematoma on her knee did not interfere with her activities. However,
she suffered daily neck, back and hip pain.

[95]        
Having considered the evidence and the cases provided by counsel, it is
my view that an award of non-pecuniary damages in the amount $125,000 is
appropriate.

Loss of Future Income Earning Capacity

Plaintiff’s Position

[96]        
Ms. Valino asserts that she has demonstrated there is a real and
substantial possibility of a future event leading to an income loss. She says that
based on the expert evidence it is apparent she has functional impairments
which will likely continue to impact her ability to perform many job activities
of any mining engineering position which involves prolonged sitting, standing,
or physical labour such as climbing ladders or carrying heavy packs of
equipment. Ms. Valino points to the fact Louise Craig, who performed a
functional capacity evaluation, and Dr. Gouws, concluded that as a result
of her neck, back and hand problems, she has diminished capacities.

[97]        
Ms. Valino argues that given her age at the time of the accident and the
fact she was just commencing her career, the capital asset approach rather than
the earnings approach is the appropriate approach to use in determining her
loss of future income earning capacity. The task of the Court is to assess
damages, not to calculate them according to some mathematical formula.

[98]        
Ms. Valino submits the method of making the assessment that should be
used is that set out in Fox v. Danis, 2005 BCSC 102, aff’d 2006 BCCA
324. In Fox, the court compared the likely future income of the
plaintiff if the accident had not occurred with the likely future income of the
plaintiff since the accident occurred.

[99]        
Ms. Valino has provided the following table and says that based on the
table, the appropriate range for the award for her loss of capacity is between
$542,607 and $2,073,025, depending on what average lifetime salary is used, and
what percentage it is determined her capacity is diminished.

[100]     Ms. Valino
asserts her capacity to earn income in the future has been diminished by at
least 25%-50%. One real and substantial possibility is that she will have to
leave her work at the Ekati mine and return to Vancouver to work at a much
reduced salary. She points to the fact that her classmate, Mr. Nguyen, is
working in Vancouver, earning $45,000 a year. Ms. Valino submits that if she
earns $45,000 instead of the $120,000 she is currently earning, she would
sustain an annual loss of $75,000. If that loss continued over her lifetime, she
says that would equate to a loss with a present day value of $1,384,650.

[101]     Ms. Valino
says she has established there is a real and substantial possibility she will
be unable to work in remote locations with the long hours normally associated
with such locations. She points to the fact that $28,770, or 26% of her current
compensation, is the northern living and site allowances she receives.

[102]     Finally,
Ms. Valino submits that the diminishment of the asset is more than just the loss
of future earnings as a mining engineer. Ms. Valino, now at 26 years of age, is
limited with regards to all work that involves sustained sitting or standing, or
greater than “light” physical work.

Defendants’ Position

[103]     The
defendants take the position that Ms. Valino has not demonstrated there is a
real and substantial possibility of a future event leading to an income loss.
They point to the fact that Ms. Valino is earning the same income at present
that she would have earned with no accident.

[104]     The
defendants submit Ms. Valino’s pre-accident condition has to be considered in
determining whether the injuries she has sustained have impacted her capacity
to earn income in the future.

[105]     The
defendants point to the following:

1)    Ms. Valino is a
slight young woman who was unlikely to ever excel in work involving heavy
physical labour;

2)    Her chosen
profession of mining engineer requires brain, not brawn;

3)    In spite of her
“catastrophizing” tendency to fear for the worst, Ms. Valino has so far had a
very successful career with two different employers, three different job
descriptions, and in arduous and demanding conditions; and

4)    It is purely
speculative to hold that Ms. Valino’s future will be negatively impacted by her
apparent inability to perform heavy physical work, even assuming she was
capable of that type of work before the accident.

[106]     The
defendants point to the fact that Ms. Valino is performing a very arduous work
schedule – with 14 day rotations, 12-hour days – and yet she has thrived in all
her placements. The evidence of her current supervisor, Christopher Fedora, is
that he would hire Ms. Valino to do either of the two positions she has been
placed in so far.

[107]     Ms. Valino
has been working since August 2013 in a mainly sedentary position for 12 hours
per day and has not missed any time from work because of her injuries. Ms.
Valino’s evidence is that she has not turned down work tasks, and agreed that
most engineering jobs are sedentary as you move up the ladder.

[108]     The
defendants submit that if it is found that Ms. Valino meets the real and
substantial possibility of loss threshold enunciated in the cases, they rely on
the following cases on quantum for loss of income earning capacity of a
plaintiff with a permanent finger injury: Dobre; Lumanlan; and Tsougrianis.

[109]     The
defendants argue that Dobre is the most similar in terms of facts, and
the award of $60,000 made in that case is the appropriate award in this case.

Applicable Law

[110]    
In Perren v. Lalari, 2010 BCCA 140, the court noted that the
first inquiry in dealing with a claim of this nature is whether there is a
substantial possibility of future income loss. The court stated at para. 32:

A plaintiff must
always prove, as was noted by Donald J.A. in Steward, by Bauman
J. in Chang, and by Tysoe J.A. in Romanchych, that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown. The former approach will be more
useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych.

[111]     If a
plaintiff establishes a loss of earning capacity and that it should be valued as
a capital asset, the impairment must be valued. It is an assessment, rather than
mathematical calculation. However, it is appropriate to compare a plaintiff’s
likely future earnings before and after the accident: Rosvold v. Dunlop,
2001 BCCA 1 at paras. 11 and 12. While under the capital asset approach, a
trial judge may begin by comparing the present value of the difference between
the plaintiff’s earnings before and after the injury, that is not conclusive.

[112]     In
determining a plaintiff’s loss of future income earning capacity, some of the factors
to be considered in making the assessment include:

1)    Has the
plaintiff been rendered less capable overall from earning income from all types
of employment?

2)    Is the plaintiff
less marketable or attractive to an employer as an employee?

3)    Has the
plaintiff lost the opportunity to take advantage of all job opportunities he or
she could have if not injured?

4)    Is the plaintiff
less valuable to him or herself as a person capable of earning income in a
competitive labour market?

Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353; Perren at para. 11.

[113]    
In Shapiro v. Dailey, 2012 BCCA 128, the court discussed the
difficulties in assessing an award for loss of future capacity as follows:

[40] The inherent difficulties of assessing awards for
hypothetical future events are well-known. The exercise has been variously
described as “gazing into a crystal ball” (Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452 at 469) and “an
estimate based on prophesies” (Morris v. Rose Estate (1996), 23 B.C.L.R.
(3d) 256 at 263). In Morris, as Mr. Justice Donald observed at 264:

… The defendant’s arguments unduly focus on the mechanics
of the judge’s calculation and they fail to recognize that in the end it is the
judge’s sense of what is fair compensation that matters. There is much more art
than science in the process. Accordingly, on appeal any missteps that may have
occurred in arriving at an award are unimportant if the figure falls within the
range of reasonable compensation.

Application of the Law to the Facts

[114]     The defendants
assert Ms. Valino has not established a real and substantial possibility that
she has a loss of future income earning capacity. In support of their position
they point to the fact that Ms. Valino was able to complete her engineering
education, perform well in a co-op position, obtain a job as a graduate
engineer after the accident, and perform her current job functions. However, the
defendants’ argument is based in part on the premise that Ms. Valino’s only
limitation is the ability to perform medium to heavy physical labour.

[115]     The defendants
appear to suggest Ms. Valino will advance quickly in her career and obtain a
more sedentary position, and will not be limited by the fact she cannot perform
some of the more physically demanding activities associated with mining
engineering.

[116]     However, I
agree with Ms. Valino that the weight of the evidence establishes there are
significant barriers to Ms. Valino gaining the necessary experience to obtain a
management position in a mine.

[117]     As noted
earlier, the evidence is that Ms. Valino is struggling in her present position,
which is sedentary in nature. Ms. Valino has described her struggles with
sitting. She gets up very early, around 3:00 a.m., so she can go to the gym and
have a workout for an hour before work. Ms. Valino’s evidence is that the
working out assists in pain management and she can tolerate sitting longer. She
eats breakfast at 4:30 a.m. and catches the 5:15 a.m. bus to be at work by 5:30
a.m. Her shift ends at 5:25 p.m.

[118]     Ms.
Valino’s evidence is that she is currently looking for another position with
less onerous hours. Ms. Valino testified that sitting and working on her
computer is painful for her neck and back, and typing causes her right hand and
arm to ache. She says her tolerance for sustained sitting is less than 30
minutes.

[119]     Ms.
Valino’s evidence is that when she first started with her present employer, she
was a ventilation engineer, was able to job shadow other engineers, and go
underground for breaks from sitting. Her current position of drill and blast
engineer involves more desk work, and her evidence is that she is having
difficulty tolerating the increased sitting.

[120]     As noted
above, Ms. Valino is looking for a position that will have a mix of field and
office work. However, she is concerned that she will not be able to do some
activities in the field. Ms. Valino now has difficulty climbing ladders because
looking up causes neck pain, and she has a problem gripping with her right
hand. This may pose a problem in the future in performing field work. For
example, part of the safety route from the underground area in the Ekati mine
involves climbing a series of ladders. As well, Ms. Valino cannot carry a heavy
pack, which means it is unlikely she can participate in emergency response
training. Ms. Valino’s plan prior to the accident was to gain experience in
different mines in order to advance in her career, and eventually become part
of management.

[121]     Mr. Fedora,
one of Ms. Valino’s supervisors, testified by way of audio deposition by
consent. His evidence is that Ms. Valino was hired by Dominion Diamond
Corporation as graduate engineer at the Ekati mine. The graduate program is
designed to give the graduate engineers experience in every aspect of the mine
so they can choose their career paths and progress through certain skill sets.
Ms. Valino started working at the underground mine as a ventilation
engineer and is now moving into a position as a drill and blast engineer. Mr.
Fedora’s evidence is that the next position for Ms. Valino is as an open pit
drilling and blasting engineer. The program lasts approximately three years,
and at the end the company hopes the graduates will apply for a permanent
position.

[122]     All of the
graduates who have worked at the mine before Ms. Valino have been involved in
every aspect of the mine. Many of them end up working with the actual mining
crews so they have an idea of what is entailed in other positions. The
traditional path on the surface is to work with the blasters doing drilling
patterns, as well as designing the drill patterns on the computer. Mr. Fedora
testified that it was unlikely that Ms. Valino will be able to work with the
crew because of her limitations.

[123]     One of Ms.
Valino’s goals is to become a shifter which is a lead person in an operations
crew, but because of her limitations that probably won’t be possible. Ms. Valino
would have to climb a ladder to get onto the decks of the drills used on the
surface, while the drill machine was shaking. The drill/blast engineers do
testing on the vibrations after and during each blast. Mr. Fedora expressed
reservations regarding Ms. Valino’s ability to use a hand drill to drill a hole
in the wall of the pit to screw in the device that monitors the vibrations. As
well, the ground is uneven and the temperature is around minus 50 or 60
degrees. Mr. Fedora testified it is more likely that when Ms. Valino works on
the surface she will mainly be doing office work rather than field work.

[124]     Mr. Fedora
is aware Ms. Valino was injured in a motor vehicle accident, and they try to
accommodate her. Mr. Fedora testified that he was aware Ms. Valino was having a
hard time with sitting at a computer for a long period of time, and with
lifting and other heavy tasks when she is working underground. They give her
help with the heavier tasks underground and try to give her different tasks to
do so she is not sitting all the time when she is in the office.

[125]     Mr. Fedora
also testified about the possible careers for a mining engineer. He has practised
as an engineer for 10 years. His evidence is that a lot of the engineers in
supervisory roles have experience doing the actual manual tasks and working
with the crews. It is a general lead up to a supervisory role. It helps as a
manager to have a familiarity with the types of tasks the people who you are
managing are doing. Mr. Fedora’s evidence is that Ms. Valino’s limitations
could result in her not being able to gain the field experience necessary to
allow her to progress in the manner she wants, or as quickly as she wants.

[126]     As stated
earlier, Ms. Megalos’ evidence was that she had noticed a marked increase in
Ms. Valino’s hand and neck symptoms since she has started working at the
Ekati mine. Her evidence was that Ms. Valino’s symptoms also increased when she
was working in a co-op position in the Gibraltar mine.

[127]     Dr. Gouws
was retained by Ms. Valino to provide an independent medical opinion regarding
her functional limitations for employment. Dr. Gouws has expertise in the area
of occupational health. He provided an independent assessment of Ms. Valino’s
fitness to work, including whether she could meet the requirements for the
physical demands of a mining engineering job.

[128]     Dr. Gouws
provided a report, and testified at the trial. Dr. Gouws assessed Ms. Valino on
October 22, 2013. At the time of Ms. Valino’s consultation with Dr. Gouws,
she had graduated from mining engineering and was looking for work. In order to
become a registered professional engineer, Ms. Valino has to work as a graduate
engineer in her field. Ms. Valino advised Dr. Gouws that her future goal was to
develop a career as a mining engineer, and eventually branch out into
consulting work. Ms. Valino expressed concern to Dr. Gouws that she would not be
able to work 12-hour shifts, which are often required in mining engineering
positions, or lift heavier loads.

[129]     Dr. Gouws
found that Ms. Valino suffered ongoing chronic neck, back, upper shoulder and
upper back pain which is myofascial in nature with associated reduced tolerance
for prolonged body positioning, including sitting and standing. As well, he
found she had low-grade lower back problems, and a deformity to her right long
finger which impacts the dexterity and grip strength of her right hand. Dr.
Gouws found that Ms. Valino’s level of pain, and most specifically her spinal
pain, impacted her quality of life and ability to work, and she had a reduced
capacity at the sedentary to light level. Finally, Dr. Gouws found that Ms.
Valino had emotional difficulties related to her chronic pain and functional
impairment.

[130]     Dr. Gouws
is of the opinion that although Ms. Valino has reached maximum medical
improvement, she has not reached maximum physical rehabilitation, and would
benefit from further physical therapy for symptom management and to allow her
to be as active as possible.

[131]     Dr. Gouws
noted that the profession of mining engineer requires a significant degree of
academic skill, dedication, and a willingness to take on different work
situations and tasks that could present in any geographic location in the
world. Dr. Gouws’ opinion is that Ms. Valino’s injuries have had a very
significant impact on her career trajectory as she does not now meet the full
physical demands of the position of mining engineer. Her ongoing impairments
are of significant concern considering her young age and the fact she has just
embarked on her career. Dr. Gouws’ opinion is that Ms. Valino’s neck and
back symptoms and the injuries to her right middle finger have left Ms. Valino
with a permanent impairment and disable her from performing the heavier tasks
involved in the work of a mining engineer.

[132]     Dr. Gouws acknowledged
that Ms. Valino is currently working 12-hour shifts on a 14 day rotation but is
of the view that she is probably doing it at a significant price in terms of
increased pain symptoms. Dr. Gouws agrees Ms. Valino has the ability to do the
types of work in mining engineering that are light work, such as office work,
but he is of the opinion that it is unlikely she will be able to sustain a
working schedule of 12-hour shifts. Dr. Gouws is of the opinion that Ms. Valino
will experience unreasonable levels of pain if she works in a work-intensive
situation for 12 hours per day, and her symptoms will get worse if she
continues to work beyond her capacity. Dr. Gouws noted that she had been accommodated
by her present employer as she has problems with prolonged sitting or standing.

[133]     Ms. Craig,
an expert in field of physiotherapy and functional capacity evaluation, saw Ms.
Valino on October 21, 2013, at the request of her counsel, for a functional
capacity evaluation. Ms. Craig prepared a report dated October 24, 2013, and
testified at the trial.

[134]     Ms. Craig
conducted a six-hour assessment of Ms. Valino. during which she performed a
short physical examination and had Ms. Valino participate in various tasks, and
complete questionnaires. Ms. Craig’s opinion is that Ms. Valino did not meet
the full physical demands of her job as a mining engineer set out in the National
Occupational Classification (NOC). Ms. Craig found that at the time of the
assessment Ms. Valino demonstrated limitations in her neck, right upper back,
right trapezius area, and right hand that reduced her ability to work at more
physically demanding jobs. Ms. Craig found that Ms. Valino would have
difficulty even with sedentary positions, and would require accommodation
allowing for frequent positional and task changes, avoidance of repetitive
right hand use, regular stretching and proper ergonomics to manage symptom
aggravation in her neck, upper back and right hand.

[135]     At the
time of the assessment Ms. Valino was not working, and Ms. Craig expressed an
opinion that it was unlikely she would tolerate 12-hour shifts. Ms. Craig
also expressed concern that Ms. Valino’s limitations would make it difficult
for her to find and sustain a suitable engineering position. Ms. Craig’s
opinion is that it is likely a part-time position would be better for Ms. Valino
in the long term. At trial, Ms. Craig testified she is aware that Ms. Valino is
currently working 12-hour shifts. Ms. Craig agreed she could tolerate it with
accommodation, but is of the view that even with accommodation she is likely to
experience symptom aggravation with that schedule. Ms. Craig’s opinion is that
Ms. Valino would benefit from further physical rehabilitation to improve
symptom management and maintain function, as well as ongoing exercise.

[136]     Trevor
Lesmeister, a psychologist with expertise in the area of vocational counselling,
was retained by the defendants to perform a document review and provide an
opinion about Ms. Valino’s ability to work as a mining engineer. Mr. Lesmeister
did not meet Ms. Valino. Mr. Lesmeister’s report was filed, but he did not
testify. Mr. Lesmeister agrees Ms. Valino experiences residual physical
limitations from the accident. However, he was of the view that she did meet
the requirements in the NOC for mining engineers. Mr. Lesmeister opined that
due to Ms. Valino’s current limitations she is more suited to lighter positions
where she will not be required to overuse her right hand or engage in certain
activities such as standing, stooping, sitting, and typing for prolonged
periods of time.

[137]    
Mr. Lesmeister summarizes his opinion as follows:

While her physical limitations
will likely affect her ability to perform certain select jobs within her
profession, she has successfully completed an education that allows her to
access a wide range of job opportunities in a field with a strong labour
market. Given the diversity of work within this occupational area, it is likely
that Ms. Valino would be able to identify positions that would be more suited
to her current abilities.

[138]     Mr.
Lesmeister states that if Ms. Valino experiences further improvement there
would be an even broader range of employment opportunities available to her.

[139]     Insofar as
there is any conflict between Mr. Lesmeister and Dr. Gouws in regards to Ms.
Valino’s occupational limitations, I prefer Dr. Gouws who had the opportunity
to interview and conduct an examination of Ms. Valino, as well as review the
records.

[140]     In my
view, it is clear from a review of the evidence that Ms. Valino has established
a real and substantial possibility that she has suffered a loss of future
income earning capacity. Ms. Valino’s evidence that she is not able to sustain
her current work schedule is supported by the medical evidence, and the
evidence of both Dr. Gouws and Mr. Lesmeister. Mr. Lesmeister states in his
report that Ms. Valino is limited from performing job activities which
require prolonged sitting and typing. Ms. Valino’s current job position
requires such activities. Given her current work schedule, it is not surprising
that Ms. Valino is struggling.

[141]     As well,
the defendants agree that there are certain jobs Ms. Valino will not be able to
do. Although Mr. Lesmeister opines Ms. Valino should be able to find positions
that will meet her abilities, and then build her functionality by having the
appropriate ergonomic work station, he has not identified any specific
positions or work schedules which would be appropriate.

[142]     Ms.
Valino’s pre-accident plan was to work at various mines so that she could gain
experience as a mining engineer. She is limited as a result of the accident in
the types of work she can perform, and in particular, work that involves
heavier physical work or long hours. Many of the mining engineering positions
are in remote locations, involve long hours, and have some physical
requirements.

[143]     Ms.
Valino’s current position has long hours, and some of the positions require
more physical work than others. Although Mr. Fedora stated he would hire Ms.
Valino in the two positions she has worked in, he had reservations as to
whether she would be able to perform all of the job duties on the surface. He
also noted the two positions she had worked in were being phased out at the
Ekati mine because the work is going to be more focused on the surface in the
future. Mr. Fedora was uncertain as to how Ms. Valino would perform on the
surface given her physical limitations. I note as well that Ms. Valino reports
increased pain in her hand in cold weather. Working outside on the surface in
minus 50 to 60 degrees will likely pose some challenges for her.

[144]     The
evidence is that the progression of Ms. Valino’s career depends largely on her
ability to gain experience across the spectrum of roles within the field of
mining engineering. The evidence is Ms. Valino’s career and ability to earn
income will likely be diminished if she is unable to work in those various
roles.

[145]     Ms. Valino
is currently seeking other employment which involves shorter hours, and a mix
of office and light field work. I agree with Ms. Valino’s submission that it is
likely she will have to take lower paying jobs that do not require long hours
in difficult working conditions. As noted earlier, Mr. Nguyen, a mining
engineering graduate who completed his course at the same time as Ms. Valino,
earns approximately $45,000 a year in Vancouver working 8-hour shifts as a
mineral processing technician.

[146]     In my
view, the evidence establishes that there is a real and substantial possibility
that Ms. Valino will be unable to gain the experience she needs to move into
the more lucrative managerial positions because she will be limited from
gaining experience in all of the different areas of mining engineering. Accordingly,
I have concluded that Ms. Valino has demonstrated impairment to her earning
capacity and that there is a real and substantial possibility that the
diminishment in her earning capacity will result in pecuniary loss.

[147]     I turn
then to the quantification of Ms. Valino’s loss. As noted in Perren v.
Lalari, once the plaintiff discharges the burden of establishing there is a
real and substantial possibility of a future loss of income loss,
quantification of the loss may be proved either on an earnings approach or a
capital asset approach.

[148]     I agree
that in the circumstances of this case, and in particular the age and stage of
education Ms. Valino was at the time of the accident, the capital asset
approach is appropriate.

[149]      In this
case, Ms. Valino has provided tables based on the reports and tables prepared
by Darren Benning, an expert economist, to assist in assessing the amount of
her loss. As noted in the case law, an analysis of the loss should start with a
consideration of any mathematical aids. However, that is not the end of the
analysis. The overall fairness and reasonableness of the award must also be
considered, taking into account all of the evidence.

[150]     Based on
the table she has provided, Ms. Valino submits her loss is between $542,607 and
$2,073,925. Ms. Valino argues that the higher range is appropriate based on her
earnings at the Ekati mine, and the fact the evidence demonstrates she was more
attached to the workforce than the average Canadian woman. Ms. Valino
argues that it is likely she would have earned more than the average Canadian
female mining engineer.

[151]     While I
agree that Ms. Valino has shown both stoicism and tenacity in completing her
degree, working in a co-op position in the Gibraltar mine, and then working in
her present position despite her ongoing pain, it is very early in her career and
it is difficult to determine the extent to which her future earning capacity is
diminished. I do not agree that her level of impairment is 50% to function as
an engineer overall. Ms. Valino is able to perform both office work and light
field work. While she will likely require accommodation in the form of an
ergonomic work station, the evidence establishes there is a wide spectrum of
job opportunities in mining engineering. There are likely positions available where
she can be accommodated. As pointed out by the defendants, Ms. Valino’s current
employers are willing to accommodate her.

[152]     In my
view, Ms. Valino has established a real and substantial possibility she will be
unable to work in remote areas and the long hours usually associated with those
areas. As well, Ms. Valino has established that she has been rendered less
capable overall from earning income from all types of employment including all
types of employment for a mining engineer, she is less marketable and
attractive as an employee, and she may not be able to take advantage of all job
opportunities. It was evident from her testimony and that of her brother that
Ms. Valino is less valuable to herself as a person as a result of her
diminished capacity.

[153]     The evidence
is that Ms. Valino’s compensation for living in a remote area and working her
current work schedule is 26% of her total compensation. Ms. Valino’s
current base salary is $81,000. The northern living allowance is $15,000, and
there is a site allowance of 17%, or $13,770. As well, Ms. Valino is eligible
for a bonus up to $10,350, for a total remuneration of $109,770 to $120,300.
The average earnings for a female engineer of Ms. Valino’s experience in 2014
dollars is $89,201. A loss of $28,770 times the multiplier provided in Mr.
Benning’s report of 18.462 results in a loss of $531,152.

[154]     Mr.
Fedora’s evidence is that senior managers in mines earn in the range of
$200,000 to $250,000 and up.

[155]     I think it
is reasonable to assess Ms. Valino’s future loss of income earning capacity on
the basis that there is a 50% chance she will be unable to work in the more
lucrative positions available for mining engineers in the more remote areas,
and unable to obtain the skills necessary to move into mine management. The
tables provided show the lump sum present value of an average lifetime salary
of $175,000 is $3,230,850, based on a multiplier of 18.46, or $4,147,850, based
on a multiplier of 23.70. The present day value of the average salary for a
Canadian female engineer of $117,562, using a multiplier of 18.462, is
$2,170,429. The difference between the two if the same multiplier is used is
approximately $1.1 million. On these calculations Ms. Valino’s loss would
be approximately $550,000, which is similar to the amount of loss calculated if
she lost her remote living allowances.

[156]     The
defendants assert that the appropriate award, if Ms. Valino establishes that
she has suffered a loss of future earning capacity, is that set out in Dobre
of $60,000, on the basis that her only diminishment in income earning capacity
is due to her finger injury. However, as discussed earlier, Dobre is
distinguishable on its facts. In this case, not only does Ms. Valino have
diminished capacity due to her hand injury but also due to her back and neck
injuries which preclude her from prolonged sitting at a desk or computer.

[157]     Having
taken into consideration all of the evidence and the submissions of counsel
regarding what is fair in the circumstances, I am satisfied a fair award for
loss of future income earning capacity is $500,000.

Cost of Future Care

[158]     Ms. Valino
advances a claim of $223,343 under this head of damages based on the report of
Terry Berry, an occupational therapist who provided a cost of future care
report.

[159]     The defendants
take the position that Ms. Valino has not established that the items set out in
Ms. Berry’s report are medically justified or that the claim is reasonable.
They say the amount for ongoing physiotherapy is not medically justified, but
simply provides some temporary relief, and it should be more properly
compensated for under the head of general damages. The psychological
counselling is unlikely to be used based on Ms. Valino’s evidence. There is no
medical justification for the claims for housekeeping.

[160]     The
defendants say in the event there is an award for the cost of future care, the
report of Linda Waithman, an occupational therapist who provided a cost of
future care report at the request of the defendants, should be preferred. The
defendants say Ms. Waithman’s report should be preferred because she properly
considers the likelihood of Ms. Valino needing care while living in camp
conditions or an apartment.

[161]     Cost of
future care is established if there is a medical justification for the claim,
and the claim is reasonable: Aberdeen v. Zanatta, 2008 BCCA 420 at para. 42.

[162]     Measures
that provide some periodic temporary relief but little to no medical
improvement ought to be compensated for under the head of general damages,
rather than an expense that is compensable as a cost of future care: Ho v.
Dosanjh, 2010 BCSC 845. As well, services that a plaintiff has not used and
not sought out in the past should not be awarded as the plaintiff will be
unlikely to avail herself of them in the future: Izony v. Weidlich, 2006
BCSC 1315 at paras. 73-74.

[163]     Ms. Valino
has provided the following table which sets out the care items from Ms. Berry’s
report:

[164]     Mr.
Benning provided multipliers for calculating the present day value of care
items needed in the future and a line-by-line calculation of the recommended
items from Ms. Berry’s report.

[165]     Although
the defendants argue that physiotherapy is not medically justified because the
health care professionals have, for the most part, indicated there is not
likely to be further improvement in Ms. Valino’s condition, it is apparent from
the evidence that the physiotherapy treatments Ms. Valino undergoes keep her
functioning and able to exercise. Dr. Wee, Dr. Adrian and Dr. Gouws all
recommend Ms. Valino continue with her physiotherapy in order to assist with
her symptoms and allow her to be as active as possible, and function in her
work environment. In my view, the amount of $31,776 set out in Mr. Benning’s
report as present value of the cost of the physiotherapy treatments is an
appropriate award under this heading.

[166]     The
defendants assert that Ms. Valino does not require any psychological
counselling based on the opinion of Dr. Solomons. However, Dr. Gouws and Dr. Wee
have both identified that Ms. Valino is suffering from ongoing mood
disturbance. Although she did not find counselling helpful on the one occasion
she went while still attending university, Ms. Valino has expressed a
willingness to attend to help her deal with her losses. In my view, given the
opinion of Dr. Gouws and Dr. Wee, some amount for psychological
counselling is appropriate. Ms. Waithman agrees if psychological counselling is
appropriate, a cost of $1,600 to $2,100 is appropriate. Ms. Valino is claiming
$3,000 under this head. I am of the view it is appropriate to award the amount
of $2,000 for psychological counselling.

[167]     Ms. Valino
is claiming costs for various types of home support, including house cleaning,
home maintenance, seasonal yard work and moving, in the amount of $138,600. The
defendants say the home support services listed in Ms. Berry’s report are not
medically necessary and should not be awarded. Ms. Waithman agrees some homemaking
service many be reasonable for Ms. Valino, but two hours per week seems high to
start, particularly when Ms. Valino is working in a camp job where the cooking
and cleaning are done for her. I agree with Ms. Waithman that based on her
described function in the medical reports and in her own evidence, Ms. Valino
is able to complete the majority of household chores.

[168]     However, I
agree that the evidence establishes there is some medical justification for the
provision of some assistance to Ms. Valino in the future in regards to heavier
chores, yard work, and moving. Based on the limited evidence I am of the view
that an award for home support in the future in the amount of $30,000 is
appropriate.

[169]     The
various health professionals have all recommended that Ms. Valino continue with
an active exercise program in order to improve her symptoms and functionality.
Accordingly, I am of the view that an award for a gym pass is appropriate.
However, as noted by the defendants, Ms. Valino’s current claim does not take into
account that she has a gym provided to her at her current location. I am of the
view that the possibility of Ms. Valino having a gym provided by her employer
is a contingency that has to be taken into account in terms of the amount of
the award under this head. I am of the view that a reduction of 50% is
appropriate, for an award in the amount of $6,000.

[170]     None of
the doctors have recommended a TENS machine. Accordingly, I am not awarding any
amount. As well, none of the doctors have recommended a kinesiologist. Ms.
Valino’s evidence is that she is given exercises by her physiotherapist.

[171]     Having
considered all of the evidence, I have concluded the appropriate award for
future care for both one time and annualized expenses is the amount of $69,776.

Conclusion

[172]     In
summary, I am awarding the following amounts:

[173]     As noted
earlier, past loss of income has been agreed to in the amount of $40,000, and
special damages have been agreed to in the amount of $16,500, for a total award
of $751,276.

[174]     As well,
Ms. Valino is entitled to her costs at Scale B, subject to submissions.

“Gerow
J.”