IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150210

Docket: M120943

Registry:
Vancouver

Between:

Karen Susan
Redmond

Plaintiff

And

Cole Krider and
Robert Krider

Defendants

Before:
The Honourable Madam Justice Maisonville

Reasons for Judgment

I.  introduction. 4

II.  background. 4

1.  The
Pre-Accident Health of the Plaintiff 7

2.  Pain
and Health Following the Accident 9

(a)  Ongoing
Pain. 9

(b)  Slip
and fall 11

III.  The accident. 13

1.  The
Plaintiff’s Evidence. 13

2.  Evidence
of Bonny Dale. 14

3.  Evidence
of Cole Krider 14

4.  Evidence
of Shayan Noruzi 15

IV.  credibility and reliability
of evidence. 15

V.  liability – Position of
the Parties. 16

VI.  The law – liability. 16

1.  Contributory
Negligence. 17

2.  Discussion. 17

VII.  causation of The plaintiff’s
injuries. 18

1.  Position
of the Parties. 18

2.  The
Law on Causation. 19

3.  Psychological
Injury. 21

VIII.  medical evidence. 23

1.  Expert
Evidence of the Plaintiff 23

(A)  Dr. Stephen
Anderson. 23

(B)  Dr. Rhonda
Shuckett 25

(C)  Dr. Walter J.
Mail 27

(D)  Dr. Underwood. 27

2.  Evidence
of the Defence. 30

(A)  Dr. Kam
Shojania. 30

(B)  Dr. Levin. 30

1.  Admissibility
of Report 30

2.  Dr. Levin’s
Evidence. 32

3.  Discussion
of Dr. Levin and Dr. Anderson’s evidence. 33

4.  Conclusion
on Expert Evidence. 34

IX.  Non-Pecuniary Damages. 35

X.  Past Loss of Capacity. 40

XI.  Loss of Future Earning
Capacity. 41

(A)  Evidence
of Paul Pakulak. 44

(B)  Evidence
of Richard Carlin. 45

(C)  Evidence
of Darren Benning. 45

XII.  Cost of Future Care. 46

1.  Dr. Anderson: 49

2.  Dr. Shuckett: 50

3.  Dr. Underwood: 50

4.  Mr. Benning. 51

XIII.  Special Damages. 54

      
I.         
introduction

[1]            
At approximately 4:00 p.m. on March 24, 2010, in Coquitlam, British
Columbia, the plaintiff, Karen Redmond, was involved in a motor vehicle
accident with a motor vehicle operated by the defendant, Cole Krider.  Both
liability and damages for the accident are in issue.

[2]            
Just prior to the accident, the plaintiff was driving eastbound along
Guildford Way, nearing the intersection at Falcon Drive.  The light facing her
was green.  As she carried on through the intersection, a vehicle operated by
the defendant, moved out from its position in the oncoming westbound left-hand
turn lane and struck the plaintiff’s grey 2006 BMW. The defendant, a high
school student at that time, was in the vehicle with his friend from school,
Shayan Noruzi.  He was driving his father’s red 2001 Suzuki Grand Vitara.

[3]            
The specific issues for determination are liability for the accident,
past loss of income or capacity, future loss of income or loss of earning
capacity, non-pecuniary damages, cost of future care, and special damages.

    
II.         
background

[4]            
The plaintiff was born in May 1962.  She grew up in the Lower Mainland
and graduated from high school in 1980.  She then completed an eight-week
program at a business school.  At the time of the accident she was 47 years old.

[5]            
Her medical history includes the fact that she was diagnosed with
Type I diabetes at a young age.

[6]            
The plaintiff has always worked hard, and after completing her business
school course, she obtained a position as a file room clerk in reception at a life
insurance company and then as a mail room clerk at a law firm.  She married her
first husband in 1982, and her son was born in March 1983.  She took some time
off work to look after her son and re-entered the work force in 1985.  She then
worked until 1989 as a ticketing clerk at a well-known travel agency.

[7]            
Following that employment, she commenced work as a clerk for an airline;
however, she left this position due to the long hours and her inability to care
for her son, which her first husband found difficult doing alone.  In 1990, she
separated from her husband due to personal issues and commenced work as a
server in a restaurant.

[8]            
In December 1990, the plaintiff sustained her first motor vehicle
accident.  This accident resulted in a civil claim which was resolved.  The
plaintiff was paid damages for her injuries and past loss of income.  No future
income loss was claimed.  Following this accident, in 1991, she was diagnosed
with fibromyalgia.

[9]            
The plaintiff eventually divorced her first husband in 1994 and began
work as a receptionist at a film company.  After two and a half years, she
commenced work as an office manager at a different film company, only to suffer
a second motor vehicle accident in July 1996.

[10]        
The second motor vehicle accident, the plaintiff testified, exacerbated
her fibromyalgia symptoms, resulting in significant pain to her low back,
hands, and hips.  Ultimately that claim, too, settled although the plaintiff
took a year off from work to recover.  As in the first accident, the claim was
settled for past wage loss and non-pecuniary damages.  No future income loss
claim was advanced.

[11]        
In July 1997, the plaintiff worked as a sales clerk and manager at an
antique store.  She was laid off four years later and shortly thereafter the
business closed due to financial difficulties.

[12]        
In 1999, she met her second husband.  She then commenced working as a
membership director and sales manager at a firm called Direct Buy from May 2001
to October 2005, leaving in preparation of starting her own design firm.

[13]        
The plaintiff very much enjoyed working for Direct Buy.  The business
operates by the sales of memberships which enable a member to purchase
appliances and other household items on a wholesale basis.  There is no
commission paid to an employee for the sale of the appliances.  Rather, the earnings
stem from sales of memberships to Direct Buy.

[14]        
The plaintiff married her second husband in June 2005.

[15]        
In January 2006, she started her own interior design company.  Her
business, combined with her second husband’s ability to renovate homes,
resulted in the two of them purchasing, renovating, and decorating five
separate homes (in the period from 2002 to 2008).

[16]        
In February 2006, she was contacted by Spence Diamonds, having posted
her résumé on a job site quite some time earlier.  She was offered a position
which she happily took, only to be the victim of an armed robbery after a
period of two months.  This armed robbery left the plaintiff with debilitating
post-traumatic stress disorder (“PTSD”), for which she has received counselling
and is still in receipt of Workers Compensation Board pension.  Over time, and
with help, she has conquered her PTSD.

[17]        
The plaintiff continued to work at her interior design company through
to February 2008.  She then started work at 18Karat, another design company.  She
worked with 18Karat for two years.

[18]        
In May 2009, she separated from her second husband and they divorced in
June 2011.  In January 2010, she met her present partner, Christopher Gonev.

[19]        
In March 2010, she sustained her third motor vehicle accident, which is
the subject of this suit.  Despite the injuries she indicates she sustained in
this motor vehicle accident, she continued working until she was laid off from
18Karat two months after the accident.

[20]        
From April 2011 to October 2012, she worked at Linwood Homes.  She was then
laid off for what she was told were economic reasons.  From December 2012 to March
2014, she worked as an account manager at Van Guard Systems. However, she
was laid off following a brief hospitalization for abdominal pains.  This lay
off occurred in March 2014.

[21]        
Since April 2014 to the present, she has returned to work at Direct Buy,
as a sales director and event planner.  The event planning aspect of the
business was a result of the fact that the managers at Direct Buy began to
realize they were having success at home and garden shows and other events of
this nature, where they were able to meet potential clients and discuss with
them the value of Direct Buy membership.

1.    
The Pre-Accident Health of the Plaintiff

[22]        
The plaintiff has experienced a number of difficult health issues.  She was
diagnosed with Type I insulin-dependent diabetes at 14 years of age. 
She referred to herself as a “brittle diabetic”, meaning that her blood glucose
levels tended to rise and fall despite careful management.  She has an
endocrinologist who treats her regularly.  She testified that she manages her
diabetes well, although some complications arose during the course of her
pregnancy.

[23]        
In 1991, following her first motor vehicle accident, the plaintiff was
diagnosed with fibromyalgia.  This diagnosis was made by Dr. Cecil
Hershler, and he started her on a multi-disciplinary treatment which helped her
recovery and allowed her to get back to full-time work and her normal social
and athletic activities.

[24]        
In 1992, the plaintiff suffered a broken ankle as a consequence of an
ice skating injury, but it healed well.

[25]        
In 1996, following her second motor vehicle accident, the plaintiff had
a recurrence of her fibromyalgia.  That was a head-on collision with a drunk
driver.  As a consequence of those events, she testified that she had pain
throughout her body, including muscular pain in her arm, shoulder, hips, and
headaches.  She was able to return to work and to her exercise activities after
a year and was feeling back to normal by 1999.  She was able to play tennis and
go to the gym five days a week.

[26]        
By early 2000, when the plaintiff began to work on home renovations with
her husband, she would work hard fixing up the homes and then selling them.  She
was additionally able to put her decorating touch to work.  She did the work herself,
included painting, putting in crown mouldings and base boards.  She developed
pain in her shoulder joint as a consequence of this work and was sent for
additional testing.

[27]        
She was seen by Dr. Esdaile in 2000 and was diagnosed with adhesive
capsulitis in both shoulders, also known as “frozen shoulder”.  While it is a
temporary condition, there is no cure.  The plaintiff was told that it normally
runs its course in one to two years.  The plaintiff attended Dr. Esdaile
again in 2004.  He administered cortisone injections but she was not exactly
sure when.  These were intended to provide relief for the pain that she had
reported, including pain to her shoulder, neck, low back and hips.  This pain,
she testified, was intermittent and would often resolve if she applied a heat
pack.  Her frozen shoulder began to subside during this period.

[28]        
After 2005, the plaintiff had no further pain symptoms of significance
until the accident of March 24, 2010.

[29]        
Emotionally, the plaintiff was having difficulty during her separation
and period of divorce from her second husband, whom she referred to as an
alcoholic.  During that separation, she sought counselling from a psychiatrist
and commenced taking Wellbutrin, an anti-depressant medication which had been
prescribed by her family practitioner, Dr. Walter J. Mail.  The
plaintiff continued taking Wellbutrin until prior to Christmas 2009.  She stopped
taking the medication because of other complications that she understood it
could lead to.

[30]        
The plaintiff recovered from the second motor vehicle accident.  With
the exception of the period involving her frozen shoulder, neck, low back and
hip discomfort, she was physically active.  She jogged several kilometres a
day, would often use her home treadmill and would go to the gym to carry out
weight training.  She entered into a new partnership with Mr. Gonev, with
whom she has been living since January 2010.  Together, the couple would trail
run and bike ride.  The plaintiff also enjoyed active play with Mr. Gonev’s
young daughter.  The plaintiff and Mr. Gonev enjoyed a normal intimate
relationship.

[31]        
In addition to Mr. Gonev, a number of witnesses testified to the
plaintiff’s pre-accident activities.  The Court heard from her Direct Buy
employer, Mr. Steve Pippy and her family doctor, Dr. Mail.  According
to Mr. Pippy, the plaintiff was an enthusiastic worker and extremely good
at dealing with clients.  She quickly rose from a sales person position to a
management position with Direct Buy in 2001.  Mr. Pippy had employed her
to May 2005, when she left to try her own work.

[32]        
Mr. Pippy testified to the plaintiff’s excellent “closing ability”
with clients, meaning that she could complete deals.  He testified to her gift
in decorating, having seen her home at a company party which she hosted for
Direct Buy.  He noted that she had had no physical limitations that he was
really aware of.

2.    
Pain and Health Following the Accident

[33]        
Following the accident, the plaintiff experienced terrible pain in her
neck, back, legs, hips, arms and the back of her shoulders.  She testified that
during the period immediately after the accident, she was “aching everywhere”
and experiencing terrible neck pain, headaches, a sharp pain that went from her
neck, travelling into her eyelids, and constant pain in the back of her
shoulders, where the trapezius muscle was.  She also testified that she was
experiencing recurring bouts of stiffness with her hands.  While this has
somewhat resolved, her hands remain stiff but less so.

[34]        
Initially after the accident, the plaintiff suffered jaw pain but this improved
and resolved within four to five months.

(a)  
Ongoing Pain

[35]        
The plaintiff testified that her pain is unrelenting and while the
severity fluctuates and changes from one area to another over the course of the
day or week, it never entirely goes away.  She still suffers pain with numerous
difficulties, including:

·       cervicogenic
headaches;

·       soft
tissue injury to the musculature surrounding her neck, spine, shoulders, and
periscapular region, causing myofascial pain and spasm;

·       mechanical
low back pain;

·       left
hip and buttock pain;

·       sacroiliac
strain;

·       fibromyalgia;

·       persistent
somatic symptoms disorder of moderate severity (chronic pain);

·       reduced
cognitive ability;

·       major
depression (in remission after year 1); and

·      
adjustment disorder with depressive symptoms and anxiety.

[36]        
The plaintiff continues to take pain medication regularly including
Tylenol, both regular and extra-strength.  She takes Tylenol and nortriptyline
mainly to help her sleep.  Since the accident, she has tried numerous methods
of pain control such as physiotherapy, heat, TENS machine, massage,
acupuncture, pain clinics, cognitive behavioural therapy and antidepressants.  She
has gained weight (Mr. Gonev and the plaintiff each estimated
approximately 30 to 40 pounds).  The plaintiff and Mr. Gonev are unable to
exercise together as a couple.  She has gone on a diet and managed to lose 18
pounds.

[37]        
She testified she never has a pain-free day, experiencing daily pain in
her neck, low back, and the muscles between her neck and shoulders.  She
suffers anxiety driving, always fearing another motor vehicle accident.  She
has difficulty sleeping and was sent to a sleep clinic, where she learned she
suffers from sleep apnea.  The plaintiff testified that the accident has
curtailed her work, her recreational activities and her general enjoyment of
life.  She can no longer enjoy outings and travel as she had before the
accident, although she has persisted in trying.

[38]        
Stress can bring on an increase in her symptoms.  She would use hot
compresses, take hot showers and take Tylenol 3 for the pain. 
Nevertheless, she experienced terrible headaches which she felt gave her light
sensitivity, causing her to wear sunglasses throughout the day.

[39]        
Immediately following the accident, the plaintiff did as much work as
she could from home.  By early May 2010, she was laid off from 18Karat.  The
plaintiff felt that she became depressed, upset, and in need of regular work.

[40]        
When giving her evidence, the plaintiff was in apparent pain on
occasion.  She frequently changed seating positions and would occasionally
stand to give evidence.  She often grimaced.

(b)  
Slip and fall

[41]        
In October 2011, the plaintiff was involved in a slip and fall while at
a grocery store, approximately one and a half years after the accident.  She
slipped down to one knee and then went over onto her buttock.  She testified
that following that event, she had a week of increased achiness but she then
returned to her baseline level of pain soon after.

(c)   Work and
relationships

[42]        
In November 2010, the plaintiff was also involved in a verbal
altercation with an individual in a parking lot.  She was shaken by the
incident but recovered from it that evening.  She felt this was linked to her
anxiety about driving either as a passenger or driver.  She tried hypnotherapy to
deal with her anxiety but remains anxious at times.  She has spoken to Dr. Mail
about taking Wellbutrin again and indeed did so, having some leftover from her
prescription.  She commenced in April 2010, but stopped after a couple of weeks
because she felt she did not need it.  This fact was confirmed by Dr. Mail
in his evidence.

[43]        
Since the accident, the plaintiff has endeavoured to find full time work. 
During the trial, she was working at Direct Buy but, as noted, she had worked
at a number of different businesses prior to that.  She has always been an
exceptionally hard worker.  Her employer, Mr. Pippy, testified that she is
working in pain.  He knows this, he testified, because he sees her having
difficulties achieving her former closing ratio, which is now approximately 18%
down from her previous 42%.  This inability to close deals as she previously
had affects her income.

[44]        
When asked why he continues to employ the plaintiff when her performance
is nothing like it used to be, Mr. Pippy indicated that his belief is “not
to give up on people”.  He agreed, however, that she is not the same as before,
but he is optimistic that she will be able to improve her sales.  Effecting a
sale of membership to Direct Buy requires that one be happy, and while he sees
her putting on a “game face”, this seems to be a difficult chore for her.  Mr.
Pippy testified that given the changes he has seen in the plaintiff’s
performance, she will not earn as much as she did when she previously worked
for Direct Buy.

[45]        
As noted above, the plaintiff was laid off from her earlier job at
Linwood Homes in October 2012.  She knows of no sales person who was laid off
at the same time as she was.  When she commenced her work with Van Guard in December 2012,
she had to miss a few days due to her back pain.  On one occasion, she was
forced to go to the emergency for severe abdominal pain, and her employment was
then terminated via email in March 2014.  A settlement was reached in respect
of that matter.

[46]        
She had also similarly been laid off from 18Karat in May 2010.  She was
told that this was for economic reasons, but she noted she was the only person
in her area laid off.  She and her partner remained deeply suspicious that she
was laid off due to her health problems.  I find that there was no proof
tendered in this regard.  While opinions were advanced, I find there was no
evidence on a balance of probabilities that the plaintiff was laid off as a
consequence of her health.

[47]        
The plaintiff’s partner, Mr. Gonev, testified he is finding things
difficult with the plaintiff and that their continued relationship is in doubt. 
He indicated to the Court in his evidence that he would have to consider his
position on their continued relationship carefully, as it becomes more serious. 
He indicated that his overarching priority was to his daughter and that the
difficulties that the plaintiff has may impair his relationship with his
daughter.  In regards to the plaintiff, he indicated that they are no longer
able to be the intimate couple they once were and that she is in pain most of
the time.  While he has endeavoured to be as sympathetic as possible, he has
found it difficult, given that the accident was four years ago.

[48]        
Both Mr. Gonev and the plaintiff testified to her extensive efforts
to feel better, including vitamin supplements, use of a TENS machine, infrared
foot therapy, massage therapy, heat pads, physiotherapy, chiropractic and
acupuncture treatments and attendance at a pain clinic.

  
III.         
The accident

1.    
The Plaintiff’s Evidence

[49]        
On Wednesday, March 24, 2010, the plaintiff testified that she had
been leaving for her work with 18Karat.  It was a dry day, bright but not sunny. 
The plaintiff’s evidence was that she was proceeding eastbound on Guildford Way
towards the intersection with Falcon Avenue on a green light when she saw two westbound
vehicles, one behind the other, waiting to turn left onto Falcon Avenue from
the dedicated turning lane on Guildford Way.  She testified she saw two boys in
the first vehicle, a red truck, talking to each other and laughing.  She
remembers the vehicle continuing to move towards her.  She tried to swerve but,
being aware of traffic in the lane to her right, she only swerved minimally.  Half
a second later, there was a hard collision, which she found shocking.

[50]        
The plaintiff testified that she remained in her vehicle for several
minutes following the impact and developed pain in the left side of her back
soon after.  She testified that she had noted the defendant’s vehicle rolling
into the intersection as she approached, but maintained that it was only as she
passed through the intersection that the defendant turned into her lane, and the
side of her vehicle.

[51]        
Following the impact, her car was not driveable.  No emergency vehicles
attended.  Her son came picked her up.

2.    
Evidence of Bonny Dale

[52]        
Bonny Dale testified that she knew no one involved in the accident.  At
that time, she was at a green light in the eastbound left turning lane on Guildford
Way, waiting to turn left onto Falcon Drive.  She testified that there was a
vehicle across the intersection from her, facing westbound, also turning left,
which was an older style red Suzuki but she could not recall whether its left
turn signal had been on or off.

[53]        
Ms. Dale testified that she saw a silver vehicle (which she learned
was the plaintiff’s) in the left through lane (i.e. between the dedicated left
turn lane and the curb lane) some distance behind her in the rear view mirror. 
It did not appear to be speeding.  She testified she did not see the silver car
make any lane changes.  When the vehicle came to the intersection, the front of
the Suzuki turned into the side of the plaintiff’s vehicle.   She noted that
the plaintiff remained in her car and hesitated after the impact.  Following
the accident, she gave the plaintiff her contact information.

3.     Evidence
of Robert Krider

[54]        
Robert Krider’s examination for discovery evidence was read into
evidence. He confirmed that he owned the vehicle and that his son, Cole Krider,
had been driving it with his consent at the time of the accident.

4.    
Evidence of Cole Krider

[55]        
The defendant Cole Krider testified that the first time he saw the
plaintiff’s vehicle was when it was approximately one-car length from the
intersection and it was between the dedicated left turn lane and the curb lane. 
In direct examination, he stated that her speed was above the speed limit;
however, on cross-examination, he agreed that the car was travelling at a lower
speed.  In cross-examination, the defendant testified he did not see the
plaintiff’s car until it was half a car length from the intersection and that
he did not see her do a lane change.

5.    
Evidence of Shayan Noruzi

[56]        
Mr. Noruzi, who was a passenger in the Krider vehicle, gave
evidence as well.  He testified that while waiting for a gap in the oncoming
traffic, the truck had only partially advanced beyond the median into the
oncoming lane.  Mr. Noruzi testified that the vehicle he was in was
stationary at impact; however, Mr. Krider had indicated that it was
stationary or inching forward.  Both Mr. Noruzi and Mr. Krider stated
that the plaintiff’s vehicle was only visible for a short time before the
accident occurred.  Both speculated that the plaintiff’s vehicle was behind a
large white vehicle in the curb lane until shortly before the plaintiff’s vehicle
entered the intersection, which accounted for why the plaintiff’s vehicle was
not seen earlier.

 
IV.         
credibility and reliability of evidence

[57]        
The Court must carefully assess the credibility and reliability of the
evidence in order to find the facts.  This involves a careful consideration of
the trustworthiness of the witnesses’ testimony, based on the veracity and
sincerity of the witnesses and the accuracy of the evidence they provide: see Bradshaw v.
Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296:

[186]  Credibility involves
an assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 
452, 50 D.L.R. 560 (S.C.C.)).  The art of assessment involves examination of
various factors such as the ability and opportunity to observe events, the
firmness of his memory, the ability to resist the influence of interest to
modify his recollection, whether the witness’ evidence harmonizes with
independent evidence that has been accepted, whether the witness changes his
testimony during direct and cross-examination, whether the witness’ testimony
seems unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanour of a witness generally (Wallace v. Davis,
[1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Farnya]; R.  v. S.(R.D.), [1997] 3 S.C.R. 484 at
para.128 (S.C.C.)).  Ultimately, the validity of the evidence depends on
whether the evidence is consistent with the probabilities affecting the case as
a whole and shown to be in existence at the time (Farnya at para. 356).

[58]        
Faryna v. Chorny, [1952] 2 D.L.R. 152 at 357 (B.C.C.A.) also
confirms the careful assessment that must be made of credibility in determining
the facts of a case.  More recently in Gichuru v. Smith, 2013 BCSC
895 at paras. 129-130, aff’d 2014 BCCA 414, Adair J. quoted Bradshaw
and then summarized:

[130]    Moreover, the
assessment of a witness’s credibility must reasonably subject the witness’s
story to an examination of its consistency with the probabilities of the
surrounding conditions or circumstances.  The real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those circumstances.  See Faryna v. Chorny,
[1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357.

   
V.         
liability – Position of the Parties

[59]        
The plaintiff’s position is that the defendant is 100% liable for the
accident and that his vehicle rolled into the intersection, striking her
vehicle, which had the right of way.

The defendant’s position is that he is not liable, that the
plaintiff drove into the defendant’s vehicle and that, at the very least, there
should be some split in liability. In particular, the defendant’s position is
that the plaintiff’s small BMW vehicle had driven into the defendant’s vehicle,
which was only a foot or so beyond the median into the oncoming traffic lane.

 
VI.         
The law – liability

[60]        
When turning left, the driver must yield to oncoming traffic.  Section
174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, provides:

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.

[61]        
The Supreme Court of Canada considered the duties of drivers in Walker
v. Brownlee and Harmon, [1952] 2 D.L.R. 450 at 461 (S.C.C.). 
Cartwright J. held:

While the decision of every
motor vehicle collision case must depend on its particular facts, I am of
opinion that when A, the driver in the servient position, proceeds through an
intersection in complete disregard of his statutory duty to yield the
right-of-way and a collision results, if he seeks to cast any portion of the
blame upon B, the driver having the right-of-way, A must establish that after B
became aware, or by the exercise of reasonable care should have become aware,
of A’s disregard of the law B had in fact a sufficient opportunity to avoid the
accident of which a reasonably careful and skilful driver would have availed
himself; and I do not think that in such circumstances any doubts should be
resolved in favour of A, whose unlawful conduct was fons et origo mali.

1.    
Contributory Negligence

[62]        
In accordance with the Negligence Act, R.S.B.C. 1996, c. 333,
s. 4, when a plaintiff contributes negligently to causing his or her own
injury, the Court must determine the relative degrees of fault.  Section 4
reads:

4         (1)
If damage or loss has been caused by the fault of 2 or more persons, the court
must determine the degree to which each person was at fault.

 (2)
Except as provided in section 5 if 2 or more persons are found at fault

 (a)
they are jointly and severally liable to the person suffering the damage or
loss, and

 (b) as between themselves,
in the absence of a contract express or implied, they are liable to contribute
to and indemnify each other in the degree to which they are respectively found
to have been at fault.

[63]        
The question for the Court is whether the plaintiff failed to take
reasonable care for her safety and whether that failure was a cause of the
accident: Bradley v. Bath, 2010 BCCA 10 at para. 27.  The
Court must assess the respective blameworthiness of the parties, rather than
the “basis to which each person’s fault caused the damage”: Bradley at para. 24. 
Further, the focus of the analysis is the extent or degree to which the conduct
departs from the standard of reasonable care: Alberta Wheat Pool v.
Northwest Pile, 2000 BCCA 505 at paras. 45-46.

2.    
Discussion

[64]        
I accept the evidence of Ms. Bonny Dale.  While I accept that
there is a curve in Guilford Way as eastbound vehicles approach the
intersection, I do not accept that there was another vehicle obscuring the
defendant’s view as he attempted to make his left hand turn.

[65]        
I find that the accident is 100% the fault of the defendant.  The
plaintiff’s vehicle was there to be seen, yet the defendant commenced his left
hand turn, in which he struck the front of the plaintiff’s vehicle.

 VII.         
causation of The plaintiff’s injuries

1.    
Position of the Parties

[66]        
The plaintiff’s position is that her injuries are completely caused by
the defendant’s negligence and that but for the negligence of the defendant,
she would not have her injuries.

[67]        
The defendant’s position is that the plaintiff’s injuries are the result
of a number of factors and pre-existing conditions, in particular:

·                
osteoarthritis in her hands and
possibly in her neck and back (the defendant relies upon Dr. Shuckett and
his report in this regard);

·                
possible osteoarthritis in her
left hip;

·                
fibromyalgia, first diagnosed in
1991 and which flared up following her second motor vehicle accident in 1996;

·                
adhesive capsulitis, which occurred
in 2002 as a result of home renovation work and for which she received
cortisone injections in 2004;

·                
her Type I diabetes
Mellitus with complications, first diagnosed between 2002 and 2006;

·                
post-traumatic stress disorder, which
she sustained while working for Spence Jewelers;

·                
sleep apnea; and

·                
the plaintiff’s slip and fall in
October 2011.

[68]        
Importantly, the defendant argues that the consensus among the experts
was that the fibromyalgia diagnosis (which all the doctors and the plaintiff
agreed was diagnosed in 1991) was significant and that it waxes and wanes over
time.  In the defendant’s submission, the accident did not trigger any flare up
and that if there was a flare up, it occurred solely as a consequence of the
nature of fibromyalgia.

2.    
The Law on Causation

[69]        
In special situations, the “but for” causation test may prove unworkable
and so the law applies the “material contribution” test: Resurfice Corp. v.
Hanke, 2007 SCC 7 at paras. 21-24.  In Clements v. Clements,
2012 SCC 32 at para. 46, McLachlin C.J.C. wrote for the majority:

[46]      The foregoing
discussion leads me to the following conclusions as to the present state of the
law in Canada:

(1)     As
a general rule, a plaintiff cannot succeed unless she shows as a matter of fact
that she would not have suffered the loss “but for” the negligent act or acts
of the defendant.  A trial judge is to take a robust and pragmatic approach to
determining if a plaintiff has established that the defendant’s negligence
caused her loss.  Scientific proof of causation is not required.

(2)     Exceptionally,
a plaintiff may succeed by showing that the defendant’s conduct materially
contributed to risk of the plaintiff’s injury, where (a) the plaintiff has
established that her loss would not have occurred “but for” the negligence of
two or more tortfeasors, each possibly in fact responsible for the loss; and (b)
the plaintiff, through no fault of her own, is unable to show that any one of
the possible tortfeasors in fact was the necessary or “but for” cause of her
injury, because each can point to one another as the possible “but for” cause
of the injury, defeating a finding of causation on a balance of probabilities
against anyone.

[70]        
Causation must still be established on a balance of probabilities before
assessing damages.  In Blackwater v. Plint, 2005 SCC 58 at para. 78, McLachlin C.J.C. wrote:

78        It is important to
distinguish between causation as the source of the loss and the rules of damage
assessment in tort. The rules of causation consider generally
whether “but for” the defendant’s acts, the plaintiff’s damages would have been
incurred on a balance of probabilities.  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.  Mr. Barney’s submissions that injury from traumas
other than the sexual assault should not be excluded amount to the contention
that once a tortious act has been found to be a material cause of injury, the
defendant becomes liable for all damages complained of after, whether or not
the defendant was responsible for those damages.

[71]        
The plaintiff must be put in the same situation that they would have
been but for the defendant’s negligence.  The tortfeasors must take their
victims as they find them.  This does not mean that the defendant needs to compensate
the plaintiff for the effects of a pre-existing condition which the plaintiff
would have experienced anyway (crumbling skull rule); however, the defendant is
responsible for those injuries that result from the defendant’s actions, even
if those injuries are more severe then what may have been experienced by the
average plaintiff (thin skull rule): Athey v. Leonati, [1996] 3
S.C.R. 458 at paras. 34-35:

(5) The Thin Skull and
“Crumbling Skull” Doctrines

34 The respondents argued that the plaintiff was
predisposed to disc herniation and that this is therefore a case where the
“crumbling skull” rule applies.  The “crumbling skull” doctrine is an awkward
label for a fairly simple idea.  It is named after the well-known “thin skull”
rule, which makes the tortfeasor liable for the plaintiff’s injuries even if
the injuries are unexpectedly severe owing to a pre-existing condition.  The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

35        The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiff’s “original position”.  The defendant need not put
the plaintiff in a position better than his or her original position. 
The defendant is liable for the injuries caused, even if they are extreme, but
need not compensate the plaintiff for any debilitating effects of the pre-existing
condition which the plaintiff would have experienced anyway.  The defendant is
liable for the additional damage but not the pre-existing damage: Cooper-Stephenson,
supra, at pp.  779-780 and John Munkman, Damages for Personal
Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a
measurable risk that the pre-existing condition would have detrimentally
affected the plaintiff in the future, regardless of the defendant’s negligence,
then this can be taken into account in reducing the overall award: Graham v.
Rourke, supra; Malec v. J. C. Hutton Proprietary Ltd., supra;
Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the
general rule that the plaintiff must be returned to the position he would have
been in, with all of its attendant risks and shortcomings, and not a better
position.

3.    
Psychological Injury

[72]        
The Court must apply special considerations when assessing claims for a
psychological injury.  In Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d)
318 at paras. 12-13 (C.A.), Lambert J.A. summarized in his concurring
judgment:

12 It is important to understand what is established and
what is not established by the decision in Maslen v. Rubenstein. 
I propose to set out a number of principles extracted from the reasons of
Mr. Justice Taylor, for the Court, in the Maslen case.  The first
point is a preliminary point and appears in Maslen at p.133 under the
heading “(a) The Background”:

1.  The plaintiff must
establish that the pain, discomfort or weakness is “real” in the sense that the
victim genuinely experiences it.

The remaining ten points are
drawn from the part of the reasons headed “(b) The Basic Principles” at pp.134
to 137:

2.  The plaintiff must
establish that his or her psychological problems have their cause in the defendant’s
unlawful act.

3.  The plaintiff’s
psychological problems do not have their cause in the defendant’s unlawful act
if they arise from a desire on the plaintiff’s part for such things as care,
sympathy, relaxation or compensation.

4.  The plaintiff’s
psychological problems do not have their cause in the defendant’s wrongful act
if the plaintiff could be expected to overcome them by his or her own inherent
resources, or “will-power”.

5.  If psychological problems
exist, or continue, because the plaintiff for some reason wishes to have them,
or does not wish them to end, their existence or continuation must be said to
have a subjective, or internal, cause.  (NOTE: I consider that this
proposition must deal with the conscious mind, otherwise it seems to me to beg
the question; see my first observation, later in this Part of these reasons.)

6.  If a court could not say
whether the plaintiff really desired to be free of the psychological problems,
the plaintiff would not have established his or her case on the critical issue
of causation.

7.  Any question of
mitigation, or failure to mitigate, arises only after causation has been
established.

8.  It is not sufficient to
ask whether a psychological condition such as “chronic, benign pain syndrome”
is “compensable”.  Such a psychological condition may be compensable or it may
not.  The identification of the symptoms as “chronic benign pain syndrome” does
not resolve the questions of legal liability or the question of assessment of
damages.

9.  It is unlikely that
medical practitioners can answer, as matters of expert opinion, the ultimate
questions on which these cases often turn.

10.  Mr. Justice
Spencer, at trial in the Maslen case, put the overall test quite
correctly in these words:

[C]hronic benign pain syndrome
will attract damages …  where the plaintiff’s condition is caused by the
defendant and is not something within her control to prevent.  If it is true of
a chronic benign pain syndrome, then it will be true also of other
psychologically-caused suffering where the psychological mechanism, whatever it
is, is beyond the plaintiff’s power to control and was set in motion by the
defendant’s fault.

11.  There must be evidence
of a “convincing” nature to overcome the improbability that pain will continue,
in the absence of objective symptoms, well beyond the recovery period, but the
plaintiff’s own evidence, if consistent with the surrounding circumstances, may
nevertheless suffice for the purpose.

13 I am sure Mr. Justice Taylor did not consider
that the “basic” principles which he set out exhausted all the possibilities
for the application of principle to the difficult problems in these cases.  The
general principles which apply in relation to causation in law will apply to
psychological injury as they apply to physical injury.

[73]        
While there must be reasonable foreseeability of injury, this is subject
to a qualification if the psychiatric injury arises as a consequence of
physical injury.  As noted by Bennett J.A. in Hussack v. Chilliwack
School District No. 33, 2011 BCCA 258 at para. 74:

[74]      The principle of
reasonable foreseeability in relation to psychiatric injury is subject to a
qualification: where the psychiatric injury is consequential to the physical
injury for which the defendant is responsible, the defendant is also
responsible for the psychiatric injury even if this injury was unforeseeable. 
See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.); Yoshikawa v.
Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.); Edwards v.
Marsden, 2004 BCSC 590; Samuel v. Levi, 2008 BCSC 1447.

[74]        
The Court in Athey at paras. 13, 16, noted that it would be an
error to insist on strict scientific reconstruction to find “but for”. 
Instead, the “but for” causation should be established on a balance of
probabilities.

[75]        
In Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d)
282 at para. 56 (C.A.), the majority of the Ontario Court of Appeal held that
the words “robust and pragmatic” apply to the but for causation test as
follows:

[56]      It is important to
note that Sopinka J. does not reduce the ultimate burden of proof from a
balance of probabilities.  Rather, the “robust and pragmatic” approach is
adopted in evaluating the facts of the case and deciding whether they meet the
civil standard.  Put another way, the burden of proof is the same, but a series
of facts and circumstances established by the evidence led at trial may enable
the trial judge to draw an inference even though medical and scientific
expertise cannot arrive at a definitive conclusion.

[76]        
With this case law in mind, I turn to the medical evidence before the
Court.

VIII.         
medical evidence

1.    
Expert Evidence of the Plaintiff

(A) 
Dr. Stephen Anderson

[77]        
Dr. Anderson appeared as an expert witness, able to give opinion
evidence in the area of psychiatry, with particular training and experience in
the treatment of chronic pain.  His report was tendered with the Court.  In it,
he diagnoses the plaintiff with a persistent somatic symptom disorder, pursuant
to the factors and agreed upon criteria in the Diagnostic and Statistical
Manual of Mental Disorders 5 (“DSM-5”), with predominant pain of moderate
severity.

[78]        
The treatment for patients suffering from persistent somatic symptom disorder
is a referral to a comprehensive multi-disciplinary pain clinic.  While there
are benefits to certain programs, Dr. Anderson testified that
medication-based hospitals and pain programs were not best suited to this
plaintiff, who requires psychiatric intervention.  He recommended in his report
that the plaintiff continue to have treatment at a comprehensive
multi-disciplinary pain clinic.  He testified that the Orion Health
Rehabilitation Assessment Centre or the LifeMark pain management program would
be appropriate.  These are full-time programs lasting approximately five to six
weeks, five days a week, in which participants are taught strategies to deal
with their pain.  The programs include numerous types of therapies such as
group therapy, individual therapy, and bio-feedback, access to experts such as
psychologists, physiotherapists and physiatrists, and means through which medications
can be adjusted.  He recommended a  pain clinic as very helpful for the
plaintiff in terms of learning how to cope, strategies, how to pace oneself,
and relaxation techniques.

[79]        
While the plaintiff did not suffer a brain injury in the accident, Dr. Anderson
testified that she still has significant cognitive difficulties, referring to
her low Montréal cognitive assessment test (MoCA).  Her difficulties would
cause her to have problems with her short-term memory and concentration.  He
testified this was caused by emotional factors such as “anxiety, depression, as
well as insomnia and fatigue and, of course, chronic pain and possibly the
drugs that she’s being prescribed to treat the pain, particularly Tylenol No. 3s,
which can affect concentration and memory”.

[80]        
Dr. Anderson also gave the opinion that the plaintiff’s vocational
functioning is narrowed because of her ongoing problems.  She can no longer do
physically demanding work, nor can she do cognitively demanding work.  She is
emotionally fragile and suffers anxiety and depressive symptoms.  As a
consequence, Dr. Anderson recommended vocational assessment.

[81]        
In April 2010, Dr. Anderson found the plaintiff to have a major
depressive disorder with suicidal ideation, but she has moved away from this
and now has adjustment disorder.  She is, however, susceptible to another major
depression, such as that which she suffered in 2010.

[82]        
Dr. Anderson testified that there is no relapse between depressive
symptoms and anxiety, and depressive symptoms.  He explained her depression and
adjustment disorder as follows:

…sadness, low mood, low
self-esteem, weight gain, loss of interest in pleasure in activities, loss of
libido, irritability.  All of these common depressive symptoms which I thought
would fall under the purview of an adjustment disorder.  The adjustment
disorder being adjusting to having chronic pain, and functional limitations in
the light.  In addition, she also has some ongoing anxiety symptoms.  She was
anxious in traffic situations.  She was worried about being in another accident
in the future.

[83]        
However, the plaintiff was not, in Dr. Anderson’s opinion,
suffering from post-traumatic stress disorder as she did following the robbery
at her employment.  In his opinion, the long-term prognosis for the plaintiff
was guarded, meaning that she will have some symptoms as long as she suffers
from chronic pain and has functional limitations.  She will likely experience
anxiety and depressive symptoms.

[84]        
In Dr. Anderson’s opinion, the difficulties suffered by the
plaintiff were “likely due to the MVA of March 24^th, 2010 superimposed
on her premorbid level of physical and emotional functioning”.  In his report, Dr. Anderson
observed:

Ms. Redmond would not have
likely developed her present constellation of physical, cognitive and emotional
difficulties if she had not been injured in the MVA of March 24th, 2010.  Ms. Redmond
did not have chronic pain, cognitive difficulties or psychiatric illness
leading up to the March 24, 2010 MVA.  Ms. Redmond did have a past
history of FM [fibromyalgia], and PTSD and depression but she was doing well
physically and emotionally in the months leading up to the March 24th,
2010 MVA.

[85]        
Dr. Anderson disagreed strongly in his evidence with the
psychiatrist called for the defendant, Dr. Alexander Levin, whose evidence
is discussed below.

[86]        
Dr. Anderson was asked why his opinion was that the plaintiff would
not improve, given she had improved after her two earlier accidents, he replied:

A          Once again, she was younger at that time.  The
prognosis is better for younger patients for fibromyalgia.  But in answer to
your question, I would like to defer that to the physical medicine doctors. 
Because any condition that’s due purely to physical or medical factors is
outside of my area of expertise.

Q         In this case, if one or the others improved,
her prognosis is better? If the pain could be — is significantly improved or
her emotional stresses in her life could be significantly bettered, she would
have a better prognosis overall?

A          Her prognosis
would improve that the pain is not likely the go way at this point in time.  Patients
who have chronic pain disorder due to physical and emotional factors that last
longer than two years do not have a remission of their symptoms. They can have
some improvement of their symptoms, but their symptoms do not remit by and large. 
So yes, her symptoms may reduce, but her condition is not likely to remit
because of the amount of time that has gone by.

(B) 
Dr. Rhonda Shuckett

[87]        
The plaintiff called rheumatologist Dr. Rhonda Shuckett, who was
qualified as an expert witness able to give evidence in the field of
rheumatology.  She authored a report in which she diagnosed the plaintiff as
suffering from headaches, neck injury into her shoulder blades with myofascial
pain and muscle spasm, mechanical low back pain, sacroiliac strain and fibromyalgia. 
She concluded that the plaintiff also received a soft tissue injury to her low
back secondary to the motor vehicle accident.

[88]        
Dr. Shuckett stated that the plaintiff’s prior motor vehicle
accidents may have caused some pre-disposition to vulnerability or
susceptibility to harm in the region of her neck and low back.  She opined that
the accident at issue in this case caused a new injury to the plaintiff’s low
back and sacroiliac joint.  In respect of the fibromyalgia, Dr. Shuckett
testified that the condition is either symptomatic or not symptomatic, but it
never goes away.  She noted that it is not unusual to see well-functioning people
who have been diagnosed with fibromyalgia who then find that a motor vehicle
accident triggers their symptoms.  She was of the opinion that where there are
still ongoing problems two to three years after a soft tissue injury, there is
lesser likelihood of those problems resolving.  In Dr. Shuckett’s opinion she
has achieved maximum medical improvement.

[89]        
In respect of causation, Dr. Shuckett stated in her report:

But for the subject MVA, I suspect
she would still be functioning at the high level of physical exercise and
function in full time work without interruption.  I believe that her
interruption of work has to do with the MVA, as well as being laid off and
having trouble finding a suitable job. She is working full time now, and I
believe that she will be able to continue working full time although this may
remain challenging for her.  Still, I believe that she is not disabled from the
MVA at this point in time.

[90]        
Dr. Shuckett was cross-examined extensively on the fact that her
written opinions state that fibromyalgia is a lifetime condition; however, she
was resolute in her testimony that the symptoms wax and wane.  Throughout
cross-examination, Dr. Shuckett was adamant that the plaintiff’s
fibromyalgia became symptomatic due to a triggering event.

[91]        
In further respect of causation, Dr. Shuckett wrote in her report, “I
believe that the subject MVA was the major contributor her current and ongoing
headaches”.  In respect of the plaintiff’s neck injury, Dr. Shuckett wrote,
“I believe that the subject MVA is a major contributor to the diagnosis I have
made … with a predisposition from her prior MVAs”.  In respect of the slip and
fall in October 2011, Dr. Shuckett opined that “the incident where [the
plaintiff] fell at the IGA store after the subject MVA in October 2011 may have
exacerbated her pain but she depicts that she had no real injury and milder
short lived symptoms after that.”

[92]        
Dr. Shuckett’s view for treatment was that the plaintiff should do
regular walking, acquasise in the pool, as well as core strengthening
exercises.

(C) 
Dr. Walter J. Mail

[93]        
Dr. Mail testified he had been the plaintiff’s treating physician for
the past 34 years.  He agreed that she has had periods of suboptimal, but
not terrible, control of her diabetes, which would have been revealed in her
blood readings.

[94]        
He was questioned about whether his records reflect that the plaintiff
has osteoarthritis in her hands, as he had referred her to the OASIS Clinic
which specializes in treating osteoarthritis.  He confirmed that the OASIS Clinic
had advised that the x-rays revealed that the pain and swelling in the
plaintiff’s hands was likely not due to osteoarthritis.

[95]        
He was able to confirm that, prior to the accident, the plaintiff was
not suffering from any bouts of fibromyalgia nor with PTSD.

[96]        
Dr. Mail was not called in his capacity as an expert, there having
been no proper notice given or any report filed by him.  However, he did
testify to his care and treatment of the plaintiff, including her symptoms
following the motor vehicle accident.  He testified that her fibromyalgia was
affected by the motor vehicle accident, in that it flared up for a period of
time.  He found that she had no symptoms of fibromyalgia in the year or so
before the accident nor any difficulties from post-traumatic stress disorder
arising from her having been held at a gunpoint.

(D) 
Dr. Heather Underwood

[97]        
The plaintiff called physiatrist Dr. Heather Underwood, who is
qualified as an expert in the field of physical medicine.  Her report was
placed before the Court.

[98]        
In her report, she diagnosed soft tissue injury to the plaintiff’s neck,
low back and periscapular region secondary to her accident on March 24,
2010.  That would be the plaintiff’s shoulder blade region and the musculature
surrounding the shoulder blade.  She also offered evidence of trochanteric
bursitis in her left hip/buttock, cervicogenic headaches likely secondary to
soft tissue injury and chronic pain.

[99]        
Dr. Underwood was cross-examined on the plaintiff’s pre-existing
diabetes and maintained that her presentation was as a result of myofascial
injuries and not a diabetic issue.  She testified that the plaintiff had soft
tissue injury as a result of her previous motor vehicle accidents.  She also
testified that the plaintiff had experienced chronic pain due to her fibromyalgia
in the past and that a stressor can cause a flare up of the symptoms of fibromyalgia.

[100]     Dr. Underwood
was cross-examined on whether the flare up of the fibromyalgia could be
consequent on her slip and fall in the IGA in October 2011.  She noted that the
fact that the plaintiff’s reports of pain were consistent and that her functioning
changed following the motor vehicle accident was critical to her attribution of
the fibromyalgia flare up as being as a consequence of the accident.

[101]     Absent the
accident, Dr. Underwood testified that the plaintiff would have continued
her level of pre-accident activities and that her current symptomology was likely
from the accident.  She concluded that the plaintiff will continue to suffer
from pain and will require strategies for dealing with pain.

[102]    
Dr. Underwood was referred to Mr. Paul Pakulak’s report.  Mr. Pakulak
is an occupational therapist, specializing in functional capacity evaluation
who prepared a report for the Court.  In her report, Dr. Underwood agreed that:

[The plaintiff] would likely be
more suited to part time work with some physical restrictions as recommended in
Mr. Pakulak’s report ….  Part-time work with restrictions would assist in
improving her ability to improve her avocational activities.

[103]     In her
testimony, Dr. Underwood elaborated that “people with chronic pain often suffer
from fatigue, and poor sleep so that they have to pace themselves throughout
the day or it tends to accumulate and they don’t – they are not able to perform
the activities throughout the day”.

[104]    
In cross-examination on the issue of fibromyalgia, Dr. Underwood
confirmed that the plaintiff’s change in function was a factor that she relied
upon to relate the accident to a flare-up of fibromyalgia.  She had taken a
history from the plaintiff in which the plaintiff reported difficulty working
at her computer, difficulty visiting clients, and positional difficulties in
terms of her posture and sitting.  Dr. Underwood was careful to note that even
though the plaintiff puts in extremely long work hours, that does not
necessarily mean that she is not suffering from a flare-up of fibromyalgia.  Dr. Underwood
testified:

People have numerous aspects of
their lives, and it’s not all about work …  So I can go hard, and
I can work 22 hours a day, and I’m not going to have an ability to do
other things.  So I can work 10 hours but do absolutely nothing else
because I’m just bagged at the end of the day.

[105]     The doctor
indicated that people are sometimes compelled to work to pay their bills.  They
can do the work, but they cannot then go out with family and friends or tend to
their lawns or clean up the kitchen at the end of the day.

[106]     Dr. Underwood
was careful to note that the plaintiff has distinct injuries that are not
caused by the accident, such as hearing problems, imbalance and tinnitus, as
well as a neurological problem manifesting as hand pain.

[107]     For the
headaches, possibilities such as injections with Botox and trigger point
injections were reviewed in cross-examination, but these, Dr. Underwood
testified, are not always covered by the Medical Services Plan.

[108]     With
respect to the plaintiff’s left hip, Dr. Underwood recommended steroid
injections.  She testified that the area over the plaintiff’s left hip could be
treated with steroid injections, but again that this is not always covered by the
BC Medical Services Plan.

[109]     Dr. Underwood
agreed that, if an individual with diabetes poorly manages their condition, it
can result in problems with fatigue, tiredness and a lack of energy.

2.    
Evidence of the Defendant

(A) 
Dr. Kam Shojania

[110]     The defendant
called Dr. Shojania as an expert in the field of rheumatology, and his
report was tendered in evidence.

[111]     In Dr. Shojania’s
opinion, the plaintiff’s current limitations were not linked to the accident
but were instead due to her pre-existing diabetes, osteoarthritis in her neck
and back, fibromyalgia and mild sleep apnea.  He testified, and a portion of
his report noted, that he believes that the plaintiff is also suffering from
the lingering effects of adhesive capsulitis — the frozen shoulder that she had
suffered earlier.

[112]     Dr. Shojania
testified that he believed that there was osteoarthritis in the plaintiff’s
hands.  Consequently, he wondered whether her neck and back pain were better
explained by osteoarthritis than a soft tissue injury resulting from the
accident.  However, it was put to him in cross-examination that he had misread
the notes which revealed that osteoarthritis was not suspect in the
symptomology of the plaintiff’s hands.

[113]     As did the
other doctors who testified to the condition of fibromyalgia, Dr. Shojania
agreed that it is a condition that never fully resolves, and instead waxes and
wanes, but he pointed to a number of events preceding or following the accident
by several months and/or years, including the slip and fall, as alternate
causes of the plaintiff’s flare-up of fibromyalgia.

(B) 
Dr. Alexander Levin

1.    
Admissibility of Report

[114]     During the
course of the trial, there was argument on the admissibility of the
Dr. Levin’s report on the basis of his qualification to give an expert
opinion.  The focus of the cross-examination was on Dr. Levin’s
qualifications and on the amount of income he derives annually from the insurer
for the defendant, the Insurance Corporation of British Columbia (“ICBC”).

[115]     Dr. Levin
obtained his initial medical qualifications in the then Soviet Union.  There
was much questioning of the nature of certain patient treatment at one of the
institutes from where he had received his training.

[116]     Dr. Levin
was also cross-examined on the amount of income he received in 2013 from ICBC, and
from the Medical Services Plan. .  Suffice it to say that 91% of his income for
2013 was derived from ICBC reports.  In 2012, it was 87%, in 2011, 78% and in
2010, the year of the accident, 60%.  Plaintiff’s counsel therefore argued that
Dr. Levin’s report was not in keeping with the Supreme Court Civil
Rules, in that it was biased and so not a neutral opinion rendered by an
expert for the benefit of the Court.

[117]     The
leading case with respect to the admissibility of expert reports is R. v.
Mohan, [1994] 2 SCR 9.  In Mohan at 20, the Court set out four
criteria for admissibility: (a) relevance, (b) necessity in assisting the trier
of fact, (c) the absence of any exclusionary rule, and (d) a properly qualified
expert.

[118]     The defendant’s
counsel submitted that the report was necessarily relevant to the case and
submitted that given that the trial was being heard by judge alone, there was
little risk for prejudice with respect to the fact-finding role of the Court
and that any concerns, given the issues raised by the plaintiff, can go to the
weight given to the opinion.

[119]     I find
that Dr. Levin has the necessary qualifications to give expert evidence. 
Given his experience and training both in the former Soviet Union and in
Canada, where he continues to practice as a psychiatrist, is a member of the
College of Physicians and Surgeons and is an instructor at the University of
British Columbia, I find he is a properly qualified expert in the area of
psychiatry and that his report meets the criteria in Mohan.  Any issues
of weight of the report will be addressed later in these reasons.

2.    
Dr. Levin’s Evidence

[120]     Overall, Dr. Levin
testified that the plaintiff did not develop a new major psychiatric condition
due to this motor vehicle accident, and he found that her level of functioning
was inconsistent with the diagnosis of a pain disorder found in her family
physician’s clinical records.  He submitted the fact that she had travelled to Las
Vegas and participated in boating with her partner went against the conclusion
that she was suffering from a psychiatric condition.

[121]     While
I have accepted that Dr. Levin is an expert, I find that his
report is to be afforded very little weight given his testimony at trial, and given
the extent to which his report strayed into advocacy.  It is difficult to
ignore the percentage of yearly income gained by the doctor as an expert for one
particular party, ICBC, although this alone is not determinative in my finding
that Dr. Levin’s report should be afforded little weight.

[122]     I note
that the doctor was argumentative with counsel.  The Court was often required
to direct him to answer, as he would not clearly give his evidence in response to
simple questions asked.  On cross-examination, he agreed he was not a
practicing physical medicine doctor and that he did not assess the plaintiff’s
physical injuries, and would defer instead to the plaintiff’s physical medicine
doctors, and yet he commented that the plaintiff’s pain and limitations were
inconsistent with her stated injuries.  It was difficult to accept his
evidence, for the further reason that Dr. Levin stated that if the DSM-5
criteria were applied as a checklist, everyone in the courtroom would have a number
of psychiatric diagnoses.  I do not accept that evidence.

[123]     The defendant’s
counsel argues that Dr. Levin’s opinion should be accepted, that the
plaintiff’s level of functioning was inconsistent with the diagnosis of pain
disorder: she did not develop any “new, not existing before, major psychiatric
condition due to the motor vehicle accident”.  I find, however, from all of the
records and all of the other doctors who testified, that there was no evidence
that the plaintiff was symptomatic prior to the accident.

[124]     The plaintiff
testified about her various trips and avocational activities with her partner, Mr. Gonev,
who also provided evidence to this Court.  It was clear that the plaintiff was
endeavouring to enjoy activities; however, it was also clear that she would do
so while suffering pain.

3.    
Discussion of Dr. Levin’s and Dr. Anderson’s evidence

[125]     In his
report, Dr. Levin said that the plaintiff does not suffer from somatic symptom
disorder, as the requirements of that diagnosis are a catastrophic perception
of injuries, pervasive preoccupation with pain, and time-consuming, excessive
activities.  However, that is not the criteria set out in the DSM-5 which was
put to Dr. Levin.  That criteria requires only that there be “[o]ne or
more somatic symptoms that are distressing or result in significant disruption
of daily life”.  Somatic symptom disorder is a spectrum disorder, and
Dr. Levin agreed with that proposition, and yet in his report, he was
clearly evaluating the diagnosis as existing only if symptoms fall at the
severe end of the spectrum.

[126]     Most
difficult for the Court, however, was the aspect of Dr. Levin’s evidence
discussing the somatic symptom disorder as it applies to the plaintiff.  As
mentioned, he discussed commentary from the DSM-5 about those symptoms that may
occur with severe cases of somatic symptom disorder, rather than the specific
criteria.  When cross-examined on the actual diagnostic criteria, it became
clear that he had not asked the plaintiff questions to determine if she met the
diagnosis set out in the DSM-5.

[127]     I do
not accept Dr. Levin’s evidence.  I prefer Dr. Anderson’s
evidence over that of Dr. Levin.  Dr. Anderson candidly conceded
matters, such as that the plaintiff would have a better prognosis if the
physical component of her pain disorder was removed, and Dr. Anderson
deferred to the physical medicine doctors respecting the plaintiff’s physical
pain.  In contrast, Dr. Levin assumed this responsibility and asserted
that, as a consequence, the plaintiff did not suffer from any a new psychiatric
condition.

[128]     The defendant
argues that, in cross-examination, Dr. Anderson conceded that the
plaintiff’s episode of depression coincided with her lengthy period of
unemployment after being laid off from her work at 18Karat.  This depression
went away after she gained another position.  The defendant further stresses
that the plaintiff had been able to recover from chronic pain in the past —
four years starting in 1990 and then two and a half years starting in 1996. 
The difficulty with this argument, however, is that Dr. Anderson had
indicated that the plaintiff was able to recover on those earlier occasions
because she did not have emotional problems at those times.

[129]     The
defendant also points to the fact that the plaintiff has enjoyed trips abroad
and has solidified a relationship with Mr. Gonev.  The difficulty with
that is that Mr. Gonev testified that, to the contrary, he is very wary of
entering a common-law relationship with the plaintiff and that, as noted
earlier in this judgment under his evidence, his daughter is the primary focus
in his life.  Despite the fact that the plaintiff and Mr. Gonev have been
together for a significant amount of time, Mr. Gonev was not unable to
state with certainty that their relationship would continue.

[130]     I find
that the plaintiff has established the pain disorder as a psychiatric condition
on a balance of probabilities.

3.    
Conclusion on Expert Evidence

[131]     I do
not accept Dr. Levin’s opinion and give it no weight.

[132]     In respect
of Dr. Shojania’s evidence, I found that Dr. Shojania erred in his
reliance on an erroneous finding of osteoarthritis of the plaintiff’s hands. 
While I accept that fibromyalgia waxes and wanes, I find that it is not
coincidental that the plaintiff suffered a flare-up of her fibromyalgia
following the accident. I accept and prefer the evidence of Drs. Shuckett
and Underwood over Dr. Shojania. Given the evidence of the plaintiff, Mr. Gonev
and the experts, which I accept, I do not find that the plaintiff’s
fibromyalgia flare-up was caused by the slip and fall which occurred quite some
time after the accident.

[133]     In
addition, I find that the plaintiff suffered from major depressive
disorder following the accident, but then went into remission after the first
year following the accident, towards the end of March 2011.  I accept Dr. Anderson’s
evidence on this point.

[134]     As a
consequence, I find that the plaintiff has the following injuries, which
were caused by the motor vehicle accident:

·       soft
tissue injury to her neck, upper back, shoulders and periscapular region,
causing soft tissue pain and spasm;

·       mechanical
low back pain;

·       left
hip and buttock pain;

·       sacroiliac
strain;

·       flare-up
of fibromyalgia;

·       cervicogenic
headaches; and

·      
adjustment disorder with depressive symptoms and anxiety,
including persistent somatic symptom disorder of moderate severity (chronic
pain) and reduced cognitive ability.

 
IX.         
Non-Pecuniary Damages

[135]     I accept
that the plaintiff has suffered significant changes to her life since the motor
vehicle accident.  Her quality of life has changed drastically.  Where she used
to be able to enjoy physical fitness and life with her partner, enjoy travel
and live a pain-free life, she now comes home from work exhausted and preoccupied
with measures to try to lessen her pain.

[136]    
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the majority
of the Court of Appeal enumerated the factors to be considered when assessing
an appropriate award for non-pecuniary damages:

[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, 2005 BCCA 54).

[137]    
I am also, however, mindful of the difficulties in assessing injuries based
on subjective reports of pain, as noted by McEachern C.J.S.C. in Price v.
Kostryba (1982), 70 B.C.L.R. 397 at 397, 339 (S.C.), and quoted in Edmondson v.
Payer, 2012 BCCA 114 at para. 2, as follows:

[2]        In Price [citation omitted] at 397 and 399,
Chief Justice McEachern, in remarks since quoted many times, stated:

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

…

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

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

Equally important, given the issue in this appeal, is the
principle enunciated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
S.C.R.  235.  There the Court referred to the statement by McLachlin J. (as
she then was) in Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby
Hospital, [1994] 1 S.C.R.  114 at 121, that the “finding of facts and the
drawing of evidentiary conclusions from facts is the province of the trial
judge, not the Court of Appeal.”  The majority in Housen stated, at para. 24:

We take the above comments of McLachlin J. to mean
that, although the same high standard of deference applies to the entire range
of factual determinations made by the trial judge, where a factual finding is
grounded in an assessment of credibility of a witness, the overwhelming
advantage of the trial judge in this area must be acknowledged.

[138]     The
plaintiff submits that the appropriate range for non-pecuniary damages in this
case is $110,000 to $200,000.  In support of this range, she relies upon Alden v.
Spooner, 2002 BCCA 592, in which the jury awarded, and the Court of Appeal
upheld, $200,000 for non-pecuniary damages to a plaintiff who had been involved
in a series of motor vehicle accidents, and who had suffered soft tissue
injuries which resulted in chronic pain or fibromyalgia, including major
depression.

[139]    
Also cited was Cumpf v. Barbuta, 2014 BCSC 1898, in which the
plaintiff was awarded $150,000 in non-pecuniary damages.  In this case, Greyell
J. considered a chronic pain situation:

[148]    I am satisfied that the
plaintiff continues to suffer from a chronic pain condition which significantly
affects her in her day to day activities; that she remains disabled from
performing many of the activities, other than light activities, which she performed
at work and around the home.  Based on the evidence, I find that her
medical condition significantly affects her emotionally and affects her family,
marital and social relationships.  At the time of trial, it was four and
one-half years post-accident.  While Ms. Cumpf had improved, she had
plateaued and will not likely improve further without significant further
treatment.  Based on the cases referred to by counsel and Ms. Cumpf’s
circumstances, I award her $150,000 in non-pecuniary damages.

[140]    
Similarly, in the case of Cantin v. Petersen, 2012 BCSC 549,
Bruce J. awarded $150,000 in non-pecuniary damages, and described the soft
tissue injuries in the judgment as follows:

[45]      The soft tissue injuries occasioned by the accident
have led to the development of serious, chronic pain in Ms. Cantin’s upper
and lower spine, hips, and legs.  Despite many types of therapy, she has
continued to experience serious pain and a drastic reduction in her functional
mobility for almost eight years since the accident.  Ms. Cantin has lost
the ability to work in a competitive labour market; she has no social life
outside her home and her relationship with family members has deteriorated
substantially as a result of her constant pain and mental distress.  She is
unable to achieve restful sleep; has suffered a cognitive decline in memory;
and has become a social recluse.  Her prognosis for any level of recovery is
extremely guarded.

[46]      While I believe
the quantum of damages suggested by Ms. Cantin, adjusted for inflation, is
more reflective of her loss than the range posited by Ms. Petersen, a
lower amount is appropriate given the risks inherent in her pre-existing
condition.

[141]    
In the case of Morlan v. Barrett, 2012 BCCA 66, the court
awarded $125,000 for injuries resulting from two motor vehicle accidents which
included soft tissue injuries resulting in chronic pain and fibromyalgia and
where the plaintiff suffered diminished energy and ongoing pain, occasional
headaches and upper back and neck pain.  Frankel J.A. for the court held:

[69]      Ms. Morlan also relies on Courdin v. Meyers,
2005 BCCA 91, 37 B.C.L.R. (4th) 222.  In that case, a 39-year-old plaintiff
sustained minor soft tissue injuries in a motor vehicle accident.  A year and a
half later she was diagnosed with myofascial pain syndrome which had crippling
effects on her life.  Her prognosis was “very guarded”.  A jury awarded
non-pecuniary damages of $1 million.  Subject to the defendants’ right to
appeal, the parties agreed to reduce that award to $292,823.00 in order to
comply with the then rough upper limit.  On appeal, this Court, keeping in mind
that defendants had chosen to have the matter tried by a jury, reduced the
award to $200,000.00.

[70]      Returning to the case at bar, it is clear that
prior to the accidents Ms. Morlan was a hard-working, motivated individual
who applied a high level of energy in all aspects of her life.  She had a long
association with the labour union movement and derived much satisfaction from
her job with the B.C.  Fed, a job she can no longer perform.  The accidents
robbed her of her energy and left her unable to do much of what she did before. 
She now suffers from chronic pain and relies on medication to help get through
each day.

[71]      Although $125,000.00
is a generous award, it cannot, having regard to recent awards in similar
cases, be said to be so excessive as to warrant appellate intervention.

[142]     I find
that the case before the Court is like that found in Cantin since the
plaintiff at bar also suffers from chronic pain or fibromyalgia, sacroiliac
joint dysfunction, ongoing cervicogenic headaches, and cognitive and
psychological complications.  It is also similar to Cumpf, where the
plaintiff was diagnosed with chronic pain and post-traumatic cervical myalgia,
mechanical lumbar pain and adjustment disorder with depressive mood.

[143]     The
defendant’s position on non-pecuniary loss is that based on Shearsmith v.
Houdek, 2008 BCSC 997, and Chamberlain v. Giles, 2008 BCSC 171,
an appropriate amount would be $60,000.  In Shearsmith, the court
awarded $60,000, but it is important to note that in that case there were credibility
issues in respect of the plaintiff in that she had deliberately understated her
income on her income tax returns in order to collect income assistance for a
number of years.  In terms of the injuries in Shearsmith, the court was
satisfied that there was corroborating evidence of the plaintiff’s testimony sufficient
to establish that she suffered injuries and that she had developed chronic pain
syndrome.  However, there was no overlay of a psychiatric diagnosis.

[144]    
In Chamberlain, the injuries were not to the same extent as the
plaintiff experiences in this case.  They were an aggravation of pre-existing
back and neck injuries, pre-existing depression, pre-existing anxiety disorders,
and fibromyalgia.  She also suffered chronic pain as a result of fibromyalgia.  I
note that the Chamberlain plaintiff submitted a non-pecuniary award in
the range of $80,000 to $95,000 for injuries, including fibromyalgia and
chronic pain, depression and anxiety attacks. It is also important bear in mind,
that Chamberlain involved a split in liability:

[135]    … and upon
considering that it is 60% rather than 100% of the Plaintiff’s injuries that
are attributable to the Accident, I am satisfied that an appropriate award
for non-pecuniary damages is $50,000.

[145]     I accept
the defendant’s submission that if this Court were to find there was some
prospect of significant recovery or improvement, futures damages should be
similarly reduced; however, it is now four years after the accident and the
plaintiff’s symptoms have not abated, such that the expert evidence is that those
symptoms have not become anything other than chronic.  Consequently, I find
that the appropriate award for pain and suffering is $150,000.

   
X.         
Past Loss of Capacity

[146]     The
plaintiff is only entitled to recover the net amount of her past damages: Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, s. 98; Lines v. W &
D Logging Co. Ltd., 2009 BCCA 106 at paras. 172-186.

[147]     The burden
of proof for actual past events is a balance of probabilities.  However,
hypothetical events must be considered in my assessment of the loss of both past
earning and future earning capacity.  The plaintiff is not required to prove
these hypothetical events on a balance of probabilities; rather, hypothetical
possibilities will be taken into consideration as long as they meet the
threshold of a real and substantial possibility, and not mere speculation: Smith
v. Knudsen, 2004 BCCA 613 at para. 24.

[148]    
In respect to past loss of earning capacity, Smith J.A. for the majority
of our Court of Appeal has described this claim, in Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30, as follows:

[30]      Thus, in my view, a
claim for what is often described as “past loss of income” is actually a claim
for loss of earning capacity; that is, a claim for the loss of the value of the
work that the injured plaintiff would have performed but was unable to perform
because of the injury.

[149]     In Rowe
at para. 31, Smith J.A. discussed the different ways past wage loss can be
measured.  In the case before this Court, it is important to clarify, and the
doctors who testified in the plaintiff’s case have particularly noted, that the
plaintiff has made Herculean efforts to remain employed, and she did so to the
detriment of her own personal life, paying for it physically being exhasuted at
the end of the day tending to her pain and by being unable to enjoy life as she
had in the past.

[150]     I accept
the evidence of Mr. Pippy concerning the plaintiff’s change in functioning
since he was an employer who knew the plaintiff both before and after the
accident.

[151]     I accept
that the plaintiff has been let go from three jobs following the accident;
however, I do not find that those layoffs were as a consequence of her
condition following the accident.  I note in particular that when she was let
go from one company, Van Guard, where she had worked from December 2012 to March
2014, she was experiencing stomach pain, attended at the hospital and spent time
at home, symptoms which are not related to the accident.  Consequently, I do
not find that the plaintiff has met the burden in this regard; however, given
Mr. Pippy’s evidence of her diminished ability to deal with customers and
attend to small details, I accept that she was not able to meet the same
sales targets that she would have met in the past.

[152]     The
plaintiff’s submissions note that it was a possibility that her termination
from the three jobs resulted from her performance; however, the standard to
meet is not “a possibility” – there must be a “real and substantial
possibility”.  In each of the three instances, the plaintiff was provided with
reasons for her dismissal, and I find that to ascribe other reasons would
amount to mere speculation.

[153]     However, I do
accept, based on Mr. Pippy’s evidence, that the plaintiff has lost some of
her ability to earn commission in the same capacity as she had in the past,
particularly in sales jobs such as at Lynwood, Direct Buy and 18Karat.

[154]     As a
consequence, I award the plaintiff $20,000 in past loss of capacity.

 
XI.         
Loss of Future Earning Capacity

[155]     A claim for
loss of future earning capacity requires the court to consider whether the
plaintiff’s earning capacity has been impaired by her injuries and, if so, what
compensation should be awarded for the resulting harm that will accrue over
time.  This must be based on evidence and is not an application of a purely
mathematical calculation.  As a result, an appropriate means of assessment will
vary from case to case: Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 at para. 8 (S.C.); Pallos v. Insurance Corp. of British
Columbia (1995), 100 B.C.L.R. (2d) 260 at para. 27 (C.A.); Pett v.
Pett, 2009 BCCA 232 at paras. 22-25.

[156]    
The assessment of these damages, as noted by our Court of Appeal in Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18, is a matter of judgment and
not calculation:

[18]      The assessment of
damages is a matter of judgment, not calculation.  Only Mr. Rosvold’s
optimism and willingness to embark on a new and untried line of endeavour
distinguish him from the 47-year old longshoreman who in otherwise very similar
circumstances was awarded $695,000.00 based on the loss of an annual earning
capacity of $49,000.00: Mazzuca .  When account is taken of all the
evidence and the corrected pre-trial annual earning capacity, while having due
regard for the trial judge’s confidence in Mr. Rosvold’s ability to start
a successful business, I consider an appropriate award for loss of future
earning capacity would be $300,000.00.  I would vary the award for future
loss accordingly and the award for past loss to $125,000.00.

[157]    
The plaintiff is to be put in a position as she would have been in but
for the injuries caused by the defendant’s negligence: Lines at para. 185:

[185]    By way of contrast to
the two examples I have given, in the situation where, at the time of
injury, the plaintiff was working at a job and returned to that job after
sufficiently recovering from the injuries, it would be appropriate, absent any
complications, for the judge to allocate the gross income loss to the calendar
years between the date of the accident and the date of trial as if the
plaintiff had continued working.  This would accord with the principle that,
insofar as is possible, the plaintiff should be put in the position he or she
would have been in if not for the injuries caused by the defendant’s
negligence.

[158]    
The court’s task is to consider the plaintiff’s working life had the
accident not happened to the plaintiff’s likely future working life following
the accident: Gregory v. Insurance Corporation of British Columbia, 2011
BCCA 144 at para. 32:

[32]      In my view comparator
cases are of limited utility in the assessment of awards for future losses,
generally.  It is well settled that an individual’s earning capacity is a
capital asset: Parypa v. Wickware, 1999 BCCA 88 at para. 63.  An
award for future loss of earning capacity thus represents compensation for a
pecuniary loss.  It is true that the award is an assessment, not a mathematical
calculation.  Nevertheless, the award involves a comparison between the likely
future of the plaintiff if the accident had not happened and the plaintiff’s
likely future after the accident has happened: Rosvold at para. 11, Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) at para. 8.  The degree of
impairment to the plaintiff’s earning capacity depends upon the type and
severity of the plaintiff’s injuries and the nature of the anticipated
employment at issue.

[159]    
The two approaches to quantification are the capital asset approach, as
set out in Brown, and that of the loss of future earning capacity, the earnings
approach, from Pallos.  As summarized in Perren v. Lalari, 2010
BCCA 140 at para. 12, the earnings approach will generally be more useful
when the loss is easily measurable, and the capital asset approach more
appropriate where the losses are not easily measurable:

[12]      These cases, Steenblok,
Brown, and Kwei, illustrate the two (both correct) approaches to
the assessment of future loss of earning capacity.  One is what was later
called by Finch J.A.  in Pallos the ‘real possibility’ approach.  Such
an approach may be appropriate where a demonstrated pecuniary loss is quantifiable
in a measurable way; however, even where the loss is assessable in a measurable
way (as it was in Steenblok), it remains a loss of capacity that is
being compensated.  The other approach is more appropriate where the loss,
though proven, is not measurable in a pecuniary way.  An obvious example of the
Brown approach is a young person whose career path is uncertain.  In my
view, the cases that follow do not alter these basic propositions I have
mentioned.  Nor do I consider that these cases illustrate an inconsistency
in the jurisprudence on the question of proof of future loss of earning
capacity.

[160]    
I find that the capital asset approach is more appropriate given
the facts in the case at bar.  The capital asset approach involves considering
the four factors set out in Brown at para. 8, which were recently
reviewed in Gilbert v. Bottle, 2011 BCSC 1389 at para. 233:

[233]    In Perren v. Lalari,
2010 BCCA 140, Garson J.A. identified the two approaches to assessment of
loss of future earning capacity commonly adopted by courts in British Columbia. 
One is the “earnings approach” described in Pallos; the other is the “capital
asset approach” described in Brown.  The earnings approach involves a
form of math-oriented methodology such as i) postulating a minimum annual
income loss for the plaintiff’s remaining years of work, multiplying the annual
projected loss by the number of remaining years and calculating a present value
or ii) awarding the plaintiff’s entire annual income for a year or two.  The
capital asset approach involves considering factors such as i) whether the
plaintiff 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.

[161]     The
discussion in Morgan v. Galbraith, 2013 BCCA 305 at para. 56,
also applies:

[56]      If the assessment is
still to be based on the capital asset approach the judge must consider the
four questions in Brown in the context of the facts of this case and
make findings of fact as to the nature and extent of the plaintiff’s loss of
capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting
the capital asset approach does not mean that the assessment is entirely at
large without the necessity to explain the factual basis of the award: Morris v.
Rose Estate (1996), 23 B.C.L.R (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at
para. 43, 63 B.C.A.C. 145.

[162]     Again, the
Court must still explain the factual basis of the capital asset approach
although it is not a mathematical calculation: Morgan at para. 56.

(A) 
Paul Pakulak

[163]    
Mr. Pakulak, an occupational therapist, was called as a witness in
respect to the plaintiff’s functional capacity.  He stated in his report:

In my opinion, Ms. Redmond
is best suited for activity requiring up to light level strength.  She
demonstrated functional limitations specific to prolonged and repetitive below
waist level work, prolonged and repetitive overhead work, prolonged positioning
of the neck and shoulders for work in front of the body, prolonged sitting and
walking.  Given her response to testing (significant increases in pain levels
during the testing and a reduction of work pace and capacity over the course of
the assessment) it is anticipated that prolonged activity above light level
and/or without provisions for the above limitations will adversely impact her
productivity and safety.

[164]     Mr. Pakulak
noted that the plaintiff’s self-reported perception of the degree of limitation
to her physical capacity was less than what was revealed by his testing; she
was underestimating her capacity.

[165]     He also felt
she should be working part-time.  In his report, Mr. Pakulak acknowledged that
the plaintiff is presently currently working full-time but that in a case such
as this, there is a concern for the sustainability of her employment, given her
pain symptoms and her inability to participate in activities outside of work.

[166]     The plaintiff
noted that Mr. Pakulak’s report is only focused on her physical health and
did not take into account her emotional or psychological condition.

[167]     While the
plaintiff testified that she can do things, she has pain doing them.  Further
while she is currently gainfully employed full-time, Mr. Pakulak opined
that her ability to gain employment in an open job market is “significantly
reduced” as a result of her ongoing injuries and limitations.

(B) 
Richard Carlin

[168]    
The plaintiff was also seen by Mr. Carlin, a vocational
rehabilitation expert, who provided a report that was before the Court.  He had
reviewed the reports of Drs.  Shuckett and Anderson and Mr. Pakulak.  By the
time of trial, he had been able to review the report of Dr. Underwood but
he had not reviewed that report before writing in his report:

At this stage post-accident
taking into consideration past events, available medical reports and Ms. Redmond’s
work capacity evaluation, I am of the opinion that the sequelae of the
subject accident have likely resulted in Ms. Redmond sustaining a
significant loss of opportunity for participating in the competitive labour
market.  To date she has failed to sustain competitive employment and it has
been opined that she is best suited to part-time, lighter strength work with a need
for accommodations to better manage her ongoing limitations.

[169]     He noted
that the plaintiff had difficulty with reading comprehension, her results being
significantly below average.  She reported difficulty with concentration due to
increasing pain levels.  Mr. Carlin testified that painful headaches can
also impact memory.  While the plaintiff had been able to find employment, Mr. Carlin
noted her strong work ethic and perseverance as being responsible for her
finding work.

(C) 
Darren Benning

[170]     The Court also
heard from Mr. Benning, a consulting economist, who is qualified as an
expert in the labour market economy.  He prepared a report regarding the
plaintiff’s future income loss.

(D)  Conclusion on
Loss of Future Earning Capacity

[171]     I do
not find that the plaintiff would continue to work only in part-time work and
that her loss should therefore be calculated on the basis that she is unable to
work full time.  While that opinion was advanced by Mr. Pakulak, Mr.
Carlin and Dr. Underwood, the plaintiff has always worked hard, and I find
it is more likely than not that she will continue to do so.  She will not,
however, have the same ability she did prior to the accident.  She must take
breaks and she has difficulty concentrating.

[172]     I accept
that the plaintiff is not able to earn the same commissions as before and that,
mindful of this, she had in fact frequently opted to earn more by way of actual
salary than commission.  Taking into account all of the real and substantial
possibilities, as well being mindful of the economic evidence, I find that
a future capacity award of $250,000 would be just and reasonable in the
circumstances of the plaintiff’s case.

 XII.         
Cost of Future Care

[173]    
The cost of future care is based upon what is reasonably necessary to
restore a plaintiff to her pre-accident condition as far as is possible and
where that restoration cannot be achieved, the court must review what
compensation is necessary to achieve the provision of adequate future care.  The
award must be based on what is reasonably necessary on the medical evidence to
preserve the plaintiff’s mental and physical health: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 78-79 (S.C.), aff’d 49 B.C.L.R. (2d) 99; Tsalamandris v.
McLeod, 2012 BCCA 239 at paras. 62-63.  In Gignac v. Insurance
Corporation of British Columbia, 2012 BCCA 351 at paras. 29-30, Bennett J.A.,
writing for the court, stated:

[29]      The purpose of the award for costs of future care
is to restore, as best as possible with a monetary award, the injured person to
the position he would have been in had the accident not occurred.

[30]      The award is “based on
what is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff”: (Milina [citation omitted] and
adopted in Aberdeen v. Zanatta, 2008 BCCA 420 at para. 41).

[174]    
Such an award should only be made based on the medical evidence, and
must be objectively required.  Accordingly, there must be, firstly, medical
justification for the claims of the future care and, secondly, those claims
must be reasonable.  In Milina at 84, McLachlin J., as she then was,
discussed it as follows:

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

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable. On the latter point, Dickson J. stated in Andrews at p.
586:

An award must be moderate, and fair
to both parties . . . But, in a case like the present, where both courts have
favoured a home environment, "reasonable" means reasonableness in
what is to be provided in that home environment.

…

It follows that I must
reject the plaintiff’s submission that damages for cost of future care should
take into account the cost of amenities which serve the sole function of making
the plaintiff’s life more bearable or enjoyable.  The award for cost of care
should reflect what the evidence establishes is reasonably necessary to
preserve the plaintiff’s health.  At the same time, it must be recognized that
happiness and health are often intertwined.

[175]     Future
care costs must also be likely to be incurred by the plaintiff in order to
justify such an award.  Accordingly, the award is a matter of prediction as to
what will happen in the future.  If a particular item or service has not been
used in the past, it may be inappropriate to award such an item or service as
part of a cost of future care award.  However, if the plaintiff can show that
previously rejected services will not be rejected in the future, there can be
recovery for such services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74;
O’Connell v. Yung, 2012 BCCA 57 at paras. 55, 60, 68-70.

[176]     The
specific care needs of a plaintiff will dictate the amount that the award
should be adjusted for contingencies.  In some cases these contingencies, both
negative and positive, offset each other and such an adjustment is not
necessary.  However, in other cases, the award will be reduced based on a
prospect of improvement in the plaintiff’s condition or increased on the basis
that additional care will likely be required, and each case, of course, must be
determined on its own unique facts: Gilbert at para. 253.

[177]    
In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9
at para. 21, the Court held that an assessment of damages for future care
is not an exercise in precise accounting:

[21]      Damages for cost of
future care are a matter of prediction.  No one knows the future.  Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can.  In doing so, courts rely on the
evidence as to what care is likely to be in the injured person’s best interest. 
Then they calculate the present cost of providing that care and may make an
adjustment for the contingency that the future may differ from what the
evidence at trial indicates.

[178]    
In Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63
at paras. 181-182 (S.C.), Levine J. held:

181      My reading of the test in Milina v. Bartsch
in the context in which it is set out is that the cost of future care that may
be awarded as damages must relate to the plaintiff’s medical needs and not
simply improve the plaintiff’s enjoyment of life.  McLachlin J. accepted
the defendant’s position in that case, which she summarized at p. 83 of her
reasons as follows:

To the extent that money can be used to sustain or improve
the mental or physical health of the plaintiff, it should be awarded under the
head of cost of future care.  But in so far as it serves only as solace by
providing substitute pleasures, it falls under the head of non-pecuniary loss,
not cost of future care, the defendants submit.

The distinction is important, because damages for
non-pecuniary loss, unlike damages for cost of future care, are limited by the
so-called “$100,000 limit”.

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

[179]    
The Jacobsen decision was considered recently in Gregory
at paras. 38-39:

[38]      Courts do accept testimony from a variety of health
care professionals as to necessary and reasonable costs of future care: Jacobsen
[citation omitted] at para. 182; in which Levine J. (as she then was)
said:

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

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

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

[180]    
Accordingly, I must be satisfied that the plaintiff requires the
services based on the evidence advanced at trial, including evidence that the
service sustains or improves her physical and mental health, and I must be
satisfied that the consultants who are not medical doctors have the sufficient
experience, skills and training, and are qualified to assess best care needs
and to provide the expert evidence concerning the care required to meet the
plaintiff’s medical needs and cost of providing for those needs.

(A)  Tracy Berry

[181]    
Tracy Berry is an occupational therapist.  She was called to report on
future care costs for the plaintiff.  In her report, she stated:

On activity questionnaires, Ms. Redmond
reported difficulty with aspects of her daily activities including self-care,
homemaking, work and social and leisure activities.  Based on my activity
analysis, Ms. Redmond’s reported functional limitations are consistent
with her psychiatric diagnoses.  Physically, she may be capable of increase[d]
participation in individual activities of daily living, but her accumulative
activity tolerance is reduced with fatigue and pain exacerbations leading to
reduced participation in activities outside of her immediate priorities, e.g. work.

[182]     Ms. Berry
had reviewed the recommendations made in a variety of reports, including Drs. Anderson
and Dr. Shuckett’s reports.  The doctors made the following
recommendations in the reports before me:

1.    
Dr. Anderson:

·       Treatment
at a comprehensive multidisciplinary pain clinic.  He suggested the Orion Health
Rehabilitation and Assessment Centre and the Life Mark Pain Management Program;

·       A
recommended 20 sessions of cognitive behavioural therapy with a registered
psychologist, after which time the plaintiff would be reassessed;

·       Tricyclic
antidepressant medication at night, for example, nortriptyline, and that she
have a therapeutic dose to treat a major depressive order of antidepressant
medication, for example Effexor, if her mood deteriorates further, although he
would defer to analgesic medication suggestions to the physical medicine
specialist;

·       A
sleep disorder clinic for treatment for insomnia;

·       MRI
scanning of her spine and a referral to an orthopedic surgeon regarding her
back pain;

·       Botox
injections for her ongoing headaches;

·       An
occupational therapist; and

·       Enrolment
in a supervised exercise program under the direction of a kinesiologist and an
experienced personal trainer.

2.    
Dr. Shuckett:

·      
An active rehabilitation program which could include a personal
trainer, a gym membership and core strength training exercises; and

·       An
MRI of her cervical spine and lumbar spine to rule out disc protrusion or herniation.

3.    
Dr. Underwood:

·       Medication
may be beneficial in managing her fibromyalgia symptoms, such as Cymbalta,
gabapentin or Lyrica;

·       Complex
pain program to a deal with her pain and have the support of a group;

·       Relaxation
techniques to help with her posture;

·       Aerobic
exercise;

·       Heat
and stretching program;

·       Trigger
point injections — she wrote in her report that the plaintiff “may require
these in the long-term”;

·       Steroid
injection into the plaintiff’s left trochanteric bursa (hip); and

·       Intermittent
counselling given her ongoing difficulty with pain.

[183]     Ms. Berry
summarized that in respect of the exercise program, it may take six months to
get the plaintiff into a proper exercise routine.

(B) 
Darren Benning

[184]     Mr. Darren
Benning, a consulting economist, was called as an expert in labour market
economics.  He assessed the costs of the plaintiff’s future care based on the recommendations
of the physicians and Ms. Berry’s report.  His report assumed normal life
expectancy and also assumed, in part, that she would move to a larger home
within one year of trial, participate in gentle yoga for the rest of her life,
and require ergonomic assessments to 65 years of age.

[185]     Mr. Benning
discussed the present value of the awards for the various heads of future care
costs proposed by the plaintiff which were before the Court.  He also
calculated the present value multipliers for the discount rates to be applied
pursuant to the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 56.

[186]     The
following costs for future care were advanced:

[187]    
The plaintiff submits the following modifications to Mr. Benning’s
report:

·      
pain clinic – $13,352;

·      
Botox injection – 25% of $1,000 per year ($500 every three to six
months as indicated by Dr. Underwood, who had estimated two to four times
a year, reduced since it does not effectively reduce headaches for everyone).

(C)  Conclusion on
Cost of Future Care

[188]    
I am persuaded by the medical evidence of Ms. Berry,
Dr. Shuckett and Dr. Underwood, and I accept that the following are
necessary:

·       chronic
pain management clinic in the amount submitted by the plaintiff;

·       a
one-time psychological assessment and four sessions of physiotherapy; and

·       the
recommended medications.

[189]    
I am not persuaded that yoga is medically recommended, given that the
plaintiff can attend at the gym as she did prior to the accident for core
strengthening exercises.  She has never tried yoga in the years following the
accident, and I am not persuaded she will use this exercise.

[190]     I am
persuaded that a one-time ergonomic assessment is required.  I also find the
kinesiology personal trainer recommendation of Ms. Berry will usefully
serve the plaintiff.

[191]     I am
persuaded a vocational assessment will be helpful to the plaintiff.  I am,
however, satisfied that she will work full time to age 65.

[192]     Ms. Berry
also recommended a Power Zero Gravity Chair.  I do not find this is a justified
claim but was rather it was a suggestion.  There was no evidence from the
plaintiff herself that she had even tried one.

[193]     I do
accept the medical justification for some homemaking support and for the items
indicated by the physicians for aquatic exercise, and I am persuaded that the
plaintiff will need help in this regard.

[194]     In regards
to the other home support recommendations, I did not find that all of these are
medically justified, nor do I find some items, such as moving every seven
years to age 70, to be reasonable.  These recommendations were also based in
part on the plaintiff obtaining a larger home and so included such items as
lawn care.  Given Mr. Gonev’s evidence that their future as a couple is
currently in doubt and that he is mindful that his daughter is his first
priority, I do not find that there was evidence capable of proving on a balance
of probabilities that the plaintiff will in fact move into a larger home with Mr. Gonev.

[195]     Taking into
account both the positive and negative contingencies, I award the
plaintiff $125,000 for the cost of future care.

XIII.         
Special Damages

[196]      At trial,
the plaintiff outlined the following special damages claims, totaling
$3,411.96, which I find to be reasonable expenses:

·       Family
Services of the North Shore – $360 for counselling to help her with alternative
career options;

·       ContinYou
extended health – $2,536.17 through which she could claim for massage,
acupuncture, chiropractic and possible physiotherapy;

·       Unihealth
– $299.04 for acupuncture treatments for her accident injuries;

·       Chiropractic
treatment – $200; and

·       Parking
– $16.75.

[197]     The plaintiff
also claims $4,009.60 for an elliptical machine.  Since no expert evidence was
advanced on this issue, I do not find this claim to be reasonable.

XIV.         
Conclusion

[198]    
In summary, I find that the following are appropriate damages in this
matter:

[199]     If counsel
are unable to agree as to costs, they may arrange to address costs by
contacting the Registry within 60 days of the judgment.

“Maisonville
J.”