IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20150616

Docket: S22831

Registry:
Chilliwack

Between:

Etagegne Belayi
Vashti Renaerts

Plaintiff

And

Eskedar Shoshana
Renaerts

Defendant

Before:
The Honourable Justice N. Brown

Reasons for Judgment

Table of Contents

Overview.. 5

1  Injuries
alleged. 6

2  The
parties’ positions on range of damages. 7

3  The
Accident 8

Effects of Injuries. 9

1  Lay
witnesses. 9

.1  Troy
Burge. 9

.2  Dawn
Tilley. 11

.3  Lori-Ann
Van Klei 11

.4  Carey
Morris. 12

2  Plaintiff’s
evidence of symptoms and limitations. 13

3  Recreational
activities. 13

4  Treatments. 15

.1  Physiotherapy
& Chiropractic. 15

5  Work
History. 16

.1  Trip
to Ethiopia September 2008 to December 2008. 17

.2  Return
to Subway after Ethiopia trip. 18

.3  Subway
after the accident 18

.4  Vedder
River Inn April 2011 to December 2011. 18

.5  Lynwood
Retirement Residence March 17, 2011. 19

.6  YWAM
Trip January 2012 to June 2012. 19

.7  Resumption
at Lynwood. 21

.8  Sodexo. 21

6  Educational
upgrading. 23

.1  HCA
program.. 23

.2  MTI
application, SETA program – December 23, 2012. 24

.3  UFV’s
Social Services program – April 9, 2013. 26

7  Medical
witnesses. 30

.1  Dr. Deepak
Grover 30

.2  Dr. Cecil
Hershler 31

.3  Dr. Mark
Frobb. 31

.4  Dr. Derryck
Smith. 33

.5  Mr. Dominic
Shew. 35

.01  Second
functional capacity assessment 36

.02  Suitability
for Social Work. 36

.03  Shew
cost of care recommendations. 38

.6  Ms. Mair
Edwards. 41

.7  Dr. Olli
M. Sovio. 42

facts admitted. 44

1  Timeline
of significant events including the first Notice to Admit 44

Plaintiff’s credibility. 44

1  Defence
submissions on credibility. 44

2  Plaintiff’s
position on credibility of the plaintiff’s testimony. 45

3  Discussion
on plaintiff’s credibility. 46

loss Earning capacity past and future. 47

1  Past
loss of earning capacity. 47

.1  Lost
earnings before return to Subway one month post-accident 47

.2  Additional
pre-trial earnings losses. 47

2  Loss
of future earning capacity. 50

.1  Legal
Principles. 50

.2  Plaintiff’s
position. 52

.01  Earnings
method. 54

.02  Loss
of Capacity Brown method. 55

.3  Defendant’s
position. 56

.4  UFV’s
LPN program information. 57

.5  Other
relevant program information on UFV website. 59

.01  HCA
program.. 59

.02  Social
Services program.. 59

.6  Prognosis
and capacity for improvement 60

.7  Plaintiff’s
without-accident suitability. 62

.8  Plaintiff’s
with accident chances of completing an LPN program.. 62

.9  Prospects
for career as a Social Services worker 63

Cost of future care. 65

2  Guiding
principles. 65

.1  Cost
of Care Table of Awards. 66

Non-pecuniary damages. 68

Did the plaintiff mitigate her
damages?. 73

adverse inferences for failing to
call witnesses. 74

Summary of damages. 77

APPENDIX. 78

1  Schedule
“A” 78

2  Schedule
“B” 79

Overview

[1]            
The plaintiff is a 24-year-old woman injured in a motor vehicle accident
on June 12, 2009, at the intersection of Kingsway and Slocan Street in Vancouver,
British Columbia. The defendant driver of the car in which the plaintiff was the
right front seat passenger admits liability. The driver ran a red light and “T-boned”
the other car in the intersection; the impact spinning their car around and
into a streetlight standard. The plaintiff wore her seatbelt. She had no airbag
on her side of the car.

[2]            
The plaintiff was born in Ethiopia. Her mother died of AIDS. This and
other trying childhood experiences had a lasting formative influence on the
plaintiff, but also had more positive repercussions than what one might assume.
An American family adopted her, but for some reason that did not work out. She
then immigrated to Canada, adopted by a Fraser Valley family. The plaintiff
describes her adoptive mother as a kind and selfless person, dedicated to the
care of 25 foster children, most of them with special needs. The plaintiff
attended a private Christian school until grade 11. In January 2007, halfway
through grade 12, she left home to support herself. Still in high school, she
began to work full-time at a Subway restaurant. In September 2007, she enrolled
in grade 12 at Sardis Secondary School, graduating in June 2008.

[3]            
Evidently, she was an active, happy, optimistic and outspoken girl, who
attracted friends. In high school, she met Troy Burge, who became her boyfriend
for eight years, and remains a friend. He saw the plaintiff a lot before and
after the accident and testified about what he saw.

[4]            
She developed a strong work ethic early in life because she had to help her
mother care for some of the younger children and do some of the many chores
required around the house. About age 15, she started to pick blueberries in the
summer. She also found another summer job running a concession stand in a theme
park. Around the same time, she started to volunteer as a candy striper in the Chilliwack
General Hospital. This strengthened her interest in a career caring for others.

[5]            
In June 2008, she graduated from high school; and, in September 2008,
she travelled to Ethiopia for three months, returning in December 2008. On her
journey, she reunited with a few relative still there; saw the orphanage she
had lived in; and obtained more information, some of it puzzling, about the events
that led to her adoption.

[6]            
The accident happened about six months after her return from Ethiopia.

[7]            
This case is mostly about what happened to the plaintiff’s career plans
after the accident. Since high school, she had her heart set on a career as a Licensed
Practice Nurse (“LPN”). The question here becomes the extent to which her
residual symptoms from the accident precluded her pursuit of her pre-accident goal
to work in the medical care field.

[8]            
Although counsel managed to agree on a wide range of facts and dates,
little of the plaintiff’s case went unchallenged; the plaintiff’s witnesses were
closely cross-examined, the plaintiff for seven hours.

[9]            
A wide gulf of between $400,000 and $600,000 separates the parties’
assessment of damages.

                          
1         
Injuries alleged

[10]        
The plaintiff alleges the following soft tissue injuries and the psychological
trauma related to them:

a)       neck;

b)       shoulders;

c)       chest;

d)       back;

e)       headaches;

f)        chronic pain disorder;

g)       dysthymic disorder;

h)       panic disorder with agoraphobia;
and

i)        other female sexual dysfunction
due to pain.

[11]        
Most of the plaintiff’s soft tissue injuries resolved fairly quickly. Her
lower back pain persisted, and became chronic. Anger, frustration, and
disappointment over her failure to fully recover as she had expected, darkened
her mood and discouraged her. Her persistent back pain precluded her from taking
part in some former recreational activities and frustrated her long-term career
plans.

[12]        
About two months after the plaintiff returned to work at the Subway
restaurant, her neck pain, shoulder pain, and headaches cleared. Upper back
pain located between her shoulder blades and at the base of her neck also
cleared eventually.

[13]        
The plaintiff’s lower back pain persisted. At first, the low back pain bothered
both sides of her back. Over time, pain on the right side predominated; and
pain on the left side receded and was less intense when noticed.

[14]        
The plaintiff did not at first notice numbness and tingling in her arms
and right hand. When she began to notice it, it lasted about 15 to 25 minutes,
sensate into the right hand as well as her arm. It occurs now about once a
month, usually when she works for longer hours. There is no evidence these
sensations originate from a radiculopathy and they are not a significant medical
concern.

                          
2         
The parties’ positions on range of
damages

[15]        
The plaintiff claims non-pecuniary damages, special damages, past wage
loss, loss of earning capacity, loss of housekeeping capacity, future cost of
care, and an in trust claim for services rendered. The parties submitted the
following range of damages:

                          
3         
The Accident

[16]        
The accident, which happened on one of Vancouver’s major urban north-south
highways, generated considerable forces. The defendant driver, the plaintiff’s
sister, tried to beat a late yellow light, but she could not clear the
intersection and T-boned a car trying to turn in the intersection. The impact
deflected and spun the defendant’s car into a street light post. Between them,
the two vehicles sustained about $7,000 in damages. The defendant’s vehicle was
not drivable after the collision, but it was not worth much. The plaintiff’s
description and the photographs suggest the force of the collision lies between
moderate and moderately heavy.

[17]        
The plaintiff felt her head hit the back of seat on the first impact.
When their car struck the street light pole, her chest came into contact with
the dashboard. The plaintiff thought her shoulder might have struck the
passenger window. The seatbelt left a mark on her stomach and likely caused the
sharp abdominal pain she noticed for a while after the accident. The left side
of her hip hurt. She felt “terrified” right after the collision and “scared”
for a couple of days later. Her sister’s air bag went off. The passenger side
did not have an air bag for some reason. Emergency personnel attended, but they
evidently did not think a trip to Emergency was necessary and for that matter, neither
did the plaintiff.

[18]        
The plaintiff called her then boyfriend, Mr. Troy Burge, to drive
in. He drove the plaintiff and her sister back to Chilliwack. The plaintiff
there attended Chilliwack General Hospital, arriving around 1:00 a.m. She
stayed at Mr. Burge’s home that night. She began to feel more generalized
pain and slept fitfully until Mr. Burge gave her pain medication. On
awakening, she felt pain in her head, shoulder, neck, back, stomach and chest.
She felt very scared. The pain continued in the weeks following. She booked off
from Subway. She went to see her family doctor, Dr. Enns. The court saw no
report from him, but his clinical records were available.

[19]        
One month later, on July 12, 2009, she returned to work at Subway on
light duties. She earned $9 hourly, plus 4% holiday pay. The parties agreed on
a wage loss of $1,404, inclusive of holiday pay. The plaintiff is entitled to an
award in that amount for wages lost for that one-month period.

Effects of Injuries

                          
1         
Lay witnesses

[20]        
The plaintiff called four lay witnesses: Troy Burge, Dawn Tilley, Carey
Morris, and Lori-Ann Van Klei. Also called were seven medical experts and an economist.

[21]        
I found all the lay witnesses credible. Their testimony supported much
of the plaintiff’s evidence.

.1         
Troy Burge

[22]        
Mr. Burge has known the plaintiff since school days. They had a
personal and sometimes romantic relationship that started in April 2006 and
ended in January 2014. They remain friends. Mr. Burge testified about his
observations of the plaintiff before and after the accident. I found him insightful,
honest and reliable. He graduated from UBC, with a degree in Geography. My note
is not clear whether he is currently teaching Geography at UBC, or whether that
was his goal. He has been a Big Brother for a fatherless boy since 2006. He has
known the plaintiff since 2006, when they met at a private Christian school.

[23]        
Asked for the overall impact of the plaintiff’s injuries on the
plaintiff, Mr. Burge testified:

The whole of the five years has
really taken a significant toll on her. … [H]er career changes and where she
wanted to be, five years ago – her five-year plan per say, has changed
drastically and it’s really taken a toll. She’s not … the bubbly outgoing vivacious
self that she usually is. … It’s taken a lot of joy out of her life, we just
haven’t been able to do the stuff that she’s used to doing that we’ve been used
to doing before that. [August 12, 2014, 3:41.]

[24]        
I will not review Mr. Burge’s extensive testimony in detail.
Suffice to say, he had ample opportunity to see the plaintiff in most
activities of everyday living, at home, on walks, on hikes, at the gym, after
medical appointments, in the car, in her studies, and in intimacy. His
descriptions have about them an air of reality. They extend up to and including
the time around the trial in 2014. They corroborate much of the plaintiff’s
testimony and harmonize with observations of other credible lay witnesses. I
will refer to only a few of the many observations he made.

[25]        
He could not recall a time when they had slept together when the
plaintiff had slept soundly through the night. She shifts position and tosses
and turns a lot. From his perspective, she had become a night owl, groggy and
tired in the morning. He bought the plaintiff a back support, which she wears
to work and at the movies. She is too tired to cook after a long day and lies
on the couch exhausted. When she does cook, she does not bend over to get pots
in the lower cupboards, but gets down on hand and knee to retrieve them.
Following her appointment with Mr. Shew, an occupational therapist, in
fall 2012, he recalled she returned home emotionally and physically exhausted. He
felt she had worsened in 2014. He testified that when he goes to the
plaintiff’s home to visit now, he often finds her in bed sleeping until late
afternoon with the doors locked.

[26]        
It was he who advised her to drop one of her post-secondary upgrade
courses because she was having so much difficulty completing her practicum (two
academic) courses at the same time. He tutored the plaintiff and was well aware
of her schedule. He testified she cancelled tutoring sessions they had set up.

[27]        
He sees the plaintiff as a hard-working person and one who wants to
work.

[28]        
He cares a great deal for the plaintiff. He would like to restart the
relationship, but not now.

.2         
Dawn Tilley

[29]        
Dawn Tilley managed the Subway restaurant where the plaintiff worked.
She first met the plaintiff about eight years ago. She saw the plaintiff’s work
performance both before and after the accident. She found her to be a credible
and reliable witness. She recalled that when the plaintiff returned from work
she could not lift or put away plates of food. Ms. Tilley and other
employees did that for her. When the plaintiff tried to do tasks she had done
before, she saw the plaintiff grimace and become frustrated that she could not
do it. She could not scrub or mop. Other employees had to take over these tasks.

.3         
Lori-Ann Van Klei

[30]        
The plaintiff became Lori-Ann Van Klei’s tenant in 2012. They shared the
upstairs floor of the home that Ms. Van Klei owned. She had ample opportunity
to observe the plaintiff. She told the court about the plaintiff’s activities,
moods and signs of discomfort she noticed. I found her an honest and reliable
witness, as well. She is a part-time teacher and also works part-time with autistic
children at a local child development centre.

[31]        
Ms. Van Klei became friends with the plaintiff. They spent about
two days a week together, to share a meal or watch a movie. She met the
plaintiff in 2012. Over a two-year period, she noticed little change. She noticed
‘pain reaction’ in the plaintiff’s face at times. She squirmed sometimes. She
noticed the plaintiff went to bed early. After school, she would lie on the
couch with a heating pad and then retire early. She recalled the plaintiff attended
a Biology course in 2012, on Tuesdays and Thursdays, with each class lasting
two hours. She attended the same class. There, she noticed the plaintiff was
often squirmy, and grimaced. Sometimes the plaintiff stood at the back of the
class with her hand at her back and sometimes left. She understood the
plaintiff was taking the class as part of her application to become an LPN.
They studied together. She noticed that the plaintiff was often in pain that
she would stuff a pillow behind her back for relief.

[32]        
Ms. Van Klei was aware the plaintiff did exercises.

[33]        
After the plaintiff had seen a specialist, (likely referring to Mr. Shew,
the occupational therapist) she noticed a mood change. The plaintiff became angry,
emotional, discouraged, and became tearful. Ms. Van Klei encouraged the
plaintiff to continue with Biology, which the plaintiff did. She recalled that
she finished well.

.4         
Carey Morris

[34]        
Ms. Carey Morris has been married for 13 years. She worked with the
plaintiff at Lynwood Retirement Residence and saw how she performed from when
she started working there, starting about 21 months after the accident and over
a period of about eight months, between April 2011 and December 2011. She was
also a credible witness.

[35]        
Her schedule overlapped the plaintiff’s schedule at Lynnwood Retirement over
about 12 months and for roughly three-quarters of that time. She recalled the
plaintiff worked as a casual server between 4:00 p.m. and 8:30 p.m., and that
for a time she took on the position of a woman on maternity leave. They worked
together for about two hours per shift, in the same general areas. She noticed
that the plaintiff could not mop, and had to use a wheeled cart to clear tables
and collect dishes, unlike the other employees who did not need to use trays.
The plaintiff could not bend over to clean the steam table or the bins beneath
it. Ms. Morris saw the plaintiff bent over in pain and try to lift the
garbage into a big bin, but she could not do it. The plaintiff could scrub the
inside of the big soup pot, but could not then lift it into the sink for
cleaning.

                          
2         
Plaintiff’s evidence of symptoms
and limitations

[36]        
The plaintiff said she noticed lower back stiffness after the accident. For
the following three months or so, she felt a constant sharp pain and tightness.
After she tried to become more active, back pain interfered with activities she
had done formerly did without any difficulty. She could no longer exercise in
the gym or skip up to 30 minutes at a stretch, or perform the advanced skipping
maneuvers she used to enjoy. Everything physical she tried to do she found
hard. Over time, the pain diminished to the extent that it no longer was
constant. On particularly bad days, she feels both throbbing and a sharp pain
that reaches down to both sides of her buttocks, around the waistline. On good
days, the symptoms are not so noticeable. The plaintiff expected to recover fairly
quickly from her lower back injury, and other injuries. Instead they became
chronic and interfered with sleep. As she saw her pain persisting and pushing
against her career plans and former recreations, she in turn became angry,
frustrated, discouraged, and depressed.

                          
3         
Recreational activities

[37]        
Before the accident, the plaintiff liked to go on long hikes, walks by
the river, and the movies. Because she had no driver’s licence for quite a
while, and used to live further outside the central part of Sardis, she faced a
five kilometre walk and steep climb, twice daily, from where she lived to the
Subway. This took the plaintiff about one hour and 20 minutes, in all. She was
very fit. Now, she can walk up to 45 minutes without difficulty, but beyond
that, she begins to feel irritation and a throbbing in her back. Troy Burge
observed this when they went on hikes after the accident.

[38]        
Before the accident, the plaintiff exercised in a gym two to three times
a week. After the accident, she tried to resume her former regimen of skipping,
elliptical training and light-moderate weight lifting, but was not able to do
so. Before the accident, she could skip for a half-hour at time. Now, she skips
for no more than 15 minutes, and avoids the more complex and challenging
skipping moves she used to enjoy. Except for occasional light routines, she
avoids weight lifting now. Before the accident, she exercised two to three times
a week. She does that less often now. Generally, she limits it to about 30 to
40 minutes, compared to the hour she used to.

[39]        
In contrast with her outgoing, happy personality before the accident, the
plaintiff now generally feels down, discouraged by her pain and limitations.

[40]        
The plaintiff can tolerate sitting for 45 minutes before she starts to
feel uncomfortable. She finds driving for long periods, e.g. a drive to and
from Vancouver, induces a throbbing pain in her back. A tough day at work and
school intensifies her pain. She has to take medication to continue. She has
used Advil, Tylenol and Robaxacet. Between six and eight pills brought relief
until concern about side effects induced her to reduce her usage. In the last
six months, she estimates she took medication, usually Tylenol, twice a week,
generally Tylenol.

[41]        
The plaintiff can lift something from waist level above her shoulders.
When she tries to lift something from the ground, however, she feels a sharp
pain in the middle area of her lower back and continuing pain as she rises. Bending
forward and backward hurts, backward more so.

[42]        
Troy Burge bought the plaintiff a back brace on March 26, 2013. She uses
it at school, work, and on other occasions. In all, an estimated four or five
times a week.

[43]        
The plaintiff also stretches and uses a medicine ball and a rope, etc.
Exhibit 20 shows photographs of various exercises she does for rehabilitation purposes
about twice every other week. Each routine takes up to 35 minutes to finish.

[44]        
Pain affected the plaintiff’s sleep more in the earlier months following
the accident. Pain still interferes with her sleep, usually dependant on what she
has done that day. Some days, she wakes up with throbbing pain.

[45]        
Troy Burge, Dawn Tilley, Lori-Ann Van Klei and Carey Morris, variously
support the plaintiff’s descriptions of her pain and limitations.

                          
4         
Treatments

.1         
Physiotherapy & Chiropractic

[46]        
Soon after the accident, the plaintiff started attending physiotherapy
at Fraser Valley Physiotherapy. To the time of trial, the plaintiff had
received a total of 52 physiotherapy and chiropractic treatments and two
registered massage therapist treatments; 54 in total. She testified physiotherapy
gave temporary relief.

[47]        
Troy Burge drove her to the physiotherapy 15 times, between June 24,
2009 and December 19, 2011. During her initial sessions, she found she could
not do all that the physiotherapist asked of her. She felt stiff and sore to
the touch.

[48]        
She had two massage therapy treatments on January 14 and 21, 2010 which
she found irritating and not beneficial.

[49]        
Between September 2012 and May 2013, the plaintiff had 15 treatments
with Dr. Jacobs, a chiropractor. She found these the most helpful of all
the treatments she received. Although she found some improvement from his
treatment, she stopped them because she could no longer afford the fee.

[50]        
Starting in November 2012 and ending in May 2013, partly coterminous
with Dr. Baker’s beneficial chiropractic treatments, the plaintiff received
21 beneficial physiotherapy treatments at Sport & Spine Physiotherapy, over
a five-month period. The therapist at Sport & Spine taught the plaintiff
exercises she still performs about twice a week. Therefore, although symptoms
continued to bother the plaintiff during this period, she saw improvement in
her ability to manage pain.

[51]        
Asked why she continued to seek treatment, she explained:

I tried them because every time I
have talked to doctors and whatnot, it’s like, oh, if you do this exercise for
this many, for this length of time, it should be fine, you’re – you will be
fine, you know. An x-ray didn’t show anything, so I should be fine with the
exercise. But as the years went by, I, my neck, my shoulder, … the top part,
might have gotten better, but the lower back is still there. But if it’s such a
little thing, why am I not better? So I kept trying different things, because I
start to get overwhelmed with the amount of time it’s taking. It’s almost 5
years today, so.

[52]        
Counsel for the defendant closely cross-examined the plaintiff on the
question of whether she had substantially improved as a result of her
treatments with Dr. Jacob and Sport and Spine Physiotherapy.

Q:        … I am suggesting to you that your time at
Sport and Spine Physiotherapy helped you in dealing with the pain management of
your lower back.

A:         Yes.

Q:        That is an improvement that continues to this
day. You are better able to manage her pain in your low back now, partially due
to the time he spent at Sport and Spine and Physiotherapy?

A:         Yes, it plays
part in it. … [This] improvement is seen for short periods of time and it has
not made enough progress for me to actually [to say I have improved]. I have
tried to give it time and then in those times I have given it, it came back, I
find that the pain gradually his back to the way it was two, three days before
I saw them.

[53]        
Ultimately, the plaintiff agreed that her ability to manage, deal with,
and adapt to her low back pain, was better in February 2014 than it was in
2013. The improvements in her back pain lasted only for a certain period and
the pain would then return. This evidence is somewhat more positive than what
we heard from Mr. Burge about the plaintiff’s functioning in 2014.

                          
5         
Work History

[54]        
The plaintiff’s life of work began as a child performing household
chores in a family of up to 30 foster children. With no automatic dishwasher,
dishes could take between an hour and an hour and-a-half to clean and put away.

[55]        
At about ages 14 to 16, she started berry picking. Her next outside summer
job was at the Townsend Fun Park, where she worked at a concession, serving hot
dogs, hamburgers, onion rings, etc.

[56]        
As we saw earlier, between 2004 and 2007, she volunteered as a candy
striper at the Chilliwack General Hospital. Her interest in a career in the
medical field was one of the main reasons she volunteered. The plaintiff
explained she always felt interested in helping others, connecting with them
and understanding their perspective. Candy striper duties included putting trays
of food on the patients’ tables, changing their water, and visiting patients who
had no visitors. The plaintiff became interested in a career as a LPN in early
high school, after a brother showed her a brochure. The plaintiff’s experience
of seeing her birth mother die of AIDS with no one to support and care for her,
and the way her adoptive mother cared selflessly for her and the foster
children became formative influences of her strong motivation  to become a
caregiver.

[57]        
At age 17, halfway through high school, the plaintiff left home and
school, and with no job, little money and no assets in hand. On January 9,
2007, she found a full-time position at a Subway restaurant in Sardis.

[58]        
Three elements combined to precipitate the plaintiff’s move from home;
the most significant being what she saw as her mother’s failure to support her
regarding a highly personal matter. She felt a sense of betrayal from this. She
also chafed at parental restrictions.

[59]        
The plaintiff, to support herself, took a full-time position at Subway. When
the plaintiff returned to finish high school in the fall, she had to enrol at
Sardis Secondary School because High Road Academy would not enrol students who
did not live with a guardian or parent while attending school. She had to work
36 hours at Subway to support herself. Fortunately, she lived quite near the
high school at the time. She took her work uniform to school, changed and then
worked after school, between 4:00 p.m. until 10:30 p.m. She also worked
weekends and opened the store at 5:30 a.m., staying until 2:00 p.m. She had to
work that many hours to pay bills and save towards a trip she wanted to take to
Ethiopia. The church she attended contributed to the cost of the trip

.1         
Trip to Ethiopia September 2008 to
December 2008

[60]        
Several reasons motivated the plaintiff’s desire to journey to Ethiopia.
One reason was to “sort out the truth” about her adoption. She still had family
in Ethiopia she wanted to see. She left in September 2008 and returned in
December 2008. The plaintiff found the trip worthwhile. Aspects of her
experiences left her feeling confused. She explained the act of forgiveness she
engaged in. She saw people she had grown up with on the streets, and people who
had mistreated her. She looked them in the eye and said she forgave them. She saw
the orphanage she lived in.

.2         
Return to Subway after Ethiopia
trip

[61]        
When the plaintiff returned from Ethiopia, she resumed work at Subway. When
the accident happened about six months later, on June 12, 2009, she was working
full-time at Subway. By then, she had advanced to supervisor/manager. Her
responsibilities included training new employees, covering shifts for employees
who did not show up for their shift and the scheduling of employees.

[62]        
The plaintiff’s history to this point portrays a teenager and young
adult with determination, initiative, energy, good health, and career goals in
life. Self-reliant, but with a supportive group of wholesome friends. These traits
should factor in a fair assessment of her earning capacity. She was also a somewhat
exposed and vulnerable young adult. Many, if not most, children in her
circumstances would still be living with their parents. She was still maturing,
forming her adult identity, still trying to come fully to terms with her early
childhood experiences and integrate them into her self-identity.

.3         
Subway after the accident

[63]        
When the plaintiff returned to Subway one month after the accident, she
could not perform all of her regular duties, such as mopping and sweeping, etc.
Her co-workers did those tasks.

[64]        
She later moved to a new Subway location and became a supervisor and
manager. She was able to put into play skills she had acquired in her former
location. On May 18, 2010, she applied at University of the Fraser Valley (“UFV”)
to finish upgrading her credentials in courses that were prerequisites to admission
to the LPN program. She continued those studies until February 21, 2011.

.4         
Vedder River Inn April 2011 to
December 2011

[65]        
In April 2011, she began work as a front desk attendant at the Vedder
River Inn. She remained there until December 1, 2011, for 30 months. She took
that position because it did not involve physical work, the graveyard shift
worked out well, and she could finish homework after things slowed down on her
night shift. As for back pain, she had difficulty standing or sitting for
longer periods. She occasionally took pain medications.

.5         
Lynwood Retirement Residence March
17, 2011

[66]        
On March 17, 2011, the plaintiff started to work at Lynnwood Retirement
Residence. She sought work there because she enjoyed working with elderly
people. She earned $14 hourly and initially, worked casual hours. The position
eventually became permanent. She worked approximately 18 hours weekly, between
4:00 p.m. and 8:30 p.m., with a half-hour break, four shifts weekly. Some of
her duties at Lynwood, such as sweeping, mopping, taking the garbage out, and
lifting, caused back pain. She could not perform all her duties. . She worked
around her limitations by asking someone else to do it, by switching duties
when possible, by loading smaller quantities of dishes, and compensating by
working faster. As we saw earlier, Carey Morris saw the plaintiff’s pain and
was aware of her physical limitations at Lynwood. Despite the pain she was
experiencing, the plaintiff stayed on because she found connecting with the
people there an “amazing experience.”

.6         
YWAM Trip January 2012 to June
2012

[67]        
In January 2012, the plaintiff left her job at the Vedder River Inn to
participate in an overseas project with a Christian organization called Youth with
a Mission (“YWAM”). She returned in June 2012. The main objective of the trip
was spiritual growth. The trip cost the plaintiff approximately $10,000. She
took pain medication with her. Apart from the stated objectives of the trip, the
plaintiff felt it also gave her a chance to get away from home and to come better
to terms with her life experiences, a process she felt the accident had frustrated.
The trip encompassed travel, first to Hawaii for two months of lectures and studies
on the practise of evangelism. The group then travelled to Thailand and
Cambodia. There, the young people provided physical labour and materials to
repair and improve an orphanage; play with the children, care for them and read
Bible stories, etc.

[68]        
Repair work at the orphanage included cleaning, sweeping, painting,
repairs and the laying down of a new tile floor. The group engaged in work
activities for about 1 to 1½ hours each day. The plaintiff testified she found
the work and playing with the children (the bending, etc.) hard on her back.
She took part in the tiling work by helping to spread the cement the tile was
set into. The girls did the work. She asked one of the boys to lift things for
her. The boys mixed and brought cement for the girls to spread. The girls,
including the plaintiff, helped trowel the cement and set the tiles. The
plaintiff found this hard on her back.

[69]        
Following Cambodia, the group spent a month in Thailand. That part of
the trip mostly entailed evangelizing. On their return trip, they stopped off in
Hawaii for two to three weeks. She recalled experiencing back pain when she
performed chores once or twice a week. She found sitting for up to two hours
during lectures painful.

[70]        
Defence counsel had in hand dozens of photographs from the trip, a good
number with the plaintiff in them. They depict a healthy-looking group of happy,
young people. Directed to various photographs, such as one that showed the
plaintiff participating in a human pyramid on the beach, the plaintiff recalled
her back felt uncomfortable, but as the pyramid lasted a short time, it was okay.

[71]        
As for her emotional state during the trip, she testified it
strengthened her spiritual growth. At the same time, she felt discouraged by
her inability to go out during free-time as much as she would have otherwise
liked to have done. Compared to when she worked at the Lynnwood Retirement
Residence, the plaintiff found her experience with YWAM produced more back
pain. She explained that at Lynwood, she only worked four and one-half hours, and
this included a half-hour break. At Lynwood, she could control her pace and how
she managed her duties. YWAM, on the other hand, could entail three hours of
sitting and listening to a lecture and completing chores by a specific time,
which she found difficult.

[72]        
Even so, the plaintiff still found the experience rewarding. She felt able
to participate fully in the experience, albeit with pain, and she had a good
time.

[73]        
The evidence does not support the defendant’s submission that the
plaintiff’s evidence shows that her pain did not prevent her from doing any of
the group’s activities and that she inconsistently engages in types of recreational
activities which she says she cannot perform in a work setting. The evidence,
fairly and fully considered, does not support this contention.

.7         
Resumption at Lynwood

[74]        
When the plaintiff returned from her YWAM trip, she resumed her
employment at Lynnwood, and again worked 18 hours weekly. She remained there
until July 1, 2013, having worked a total of about 28 months since starting
there in March 2011.

.8         
Sodexo

[75]        
At the beginning of August 2012, the plaintiff started to work for a
company called Sodexo. Sodexo had the contract for food services at Chilliwack
General Hospital. At first, the plaintiff worked in food services. She found
this hard on her back and felt the position did not suit her. When Sodexo
opened up a coffee bar, she asked to be transferred to that position. The
company agreed, and she worked as a barista in the hospital. She continued there
until June 2013, about 10 months later.

[76]        
When the plaintiff was a barista for Sodexo, she became upset at what she
saw as incidents of poor patient care. She described one incident in particular
where she tried to help a man who could not stand up from a bench in the lobby.
She complained some nurses on a coffee break refused to help. In his
submissions, counsel for the defendant submitted the plaintiff’s emotional
response revealed naivety and that the experience had fundamentally discouraged
her from the pursuit of a career in the healthcare field. I agree her reaction
was somewhat naïve and perhaps a little presumptuous, too. But the plaintiff’s
testimony regarding its effects was opposite to what the defendant suggested:
She testified the experience ended up strengthening her commitment to caring.

[77]        
She left her position at Lynnwood Retirement Home on July 1, 2013, which
means she had been there for 49 months. She left that position for a job at
Blessings Christian Marketplace. She served customers looking for Bibles,
books, CDs, etc., working an average of 25 to 30 hours weekly and earning
$10.25 hourly. She left her position at Blessings Christian Marketplace on
February 1, 2014, six months after she started.

[78]        
That same summer that she started to work at Blessings Christian
Marketplace, she also worked at a blueberry farm in Chilliwack for about 10 to
12 shifts, earning approximately $2,000. She left at the end of the season, in
September 2013. She explained that she enjoyed berry picking, something she had
enjoyed doing as a child. She had back pain while berry picking because it
required bending. Further, some bushes are higher than her and some lower,
which requires some reaching up and some bending down. During those times, her
back ached. She used Advil to medicate the pain. The blueberry farm manager
accommodated her by having his children pick up the buckets of berries that she
had picked and took them to the weighing-in place.

[79]        
She left her position at Blessings in 2014 because it interfered with
her practicum. Further, Blessings had changed its business hours. This required
letting some staff members go, her among them.

[80]        
At the time of the trial, the plaintiff was seeking employment.
Positions she had sought were at a leisure centre, a retail outlet in the mall,
and at a restaurant as a hostess. Asked whether her back pain limited her job
options, she stated she limited her search to positions where there was no
heavy lifting or a lot of physical work, bending, etc. She turned down a job
offering to work with Dawn Tilley in a wine store because of her back problems.
She also gave up for an opportunity at Napa Auto Parts after a friend who
worked there told her that most of her duties involved lifting and bending,
which she did not think she would be able to do.

                          
6         
Educational upgrading

[81]        
The plaintiff continued to upgrade and complete her prerequisite courses;
Math and Biology in particular. She had to repeat Biology, a prerequisite for
the LPN program.

.1         
HCA program

[82]        
Although the plaintiff originally had planned to enrol in the LPN
program, on June 29, 2012, she applied for admission into the UFV’s Health Care
Assistant (“HCA”) program. She planned to complete the HCA program in six months
and use this as a stepping stone up to the LPN program. In conjunction with
this, she began to volunteer at the Hampton Retirement Residence to satisfy a HCA
program requirement. She enjoyed this experience, particularly the time she
spent visiting with residents.

[83]        
The plaintiff had yet to complete her Biology course, a prerequisite for
both the HCA and the LPN programs. As mentioned, she had become increasingly
frustrated with her situation, particularly following the October 26, 2012
functional capacity assessment conducted by Mr. Dominic Shew and his
November 16, 2012 report. The plaintiff testified the experience and
recommendations of Mr. Shew brought her physical limitations and
consequent unsuitability to a career as an LPN fully home to her. This
realisation depressed her, made her feel hopeless and left her feeling she
should give up. Accordingly, she saw no point in completing the prerequisite Biology
course. But Ms. Van Klei and Troy Burge encouraged her to keep going,
convincing her that the education was not a waste of time and that eventually
she would be able to use it in an LPN or some other program. Thus encouraged by
her friends, especially Ms. Van Klei and Troy Burge, December 23, 2012,
she passed Biology 12.

[84]        
The plaintiff did not complete the application process for the HCA
program because she had not obtained a medical certificate from her family
physician. Mr. Burge testified he helped the plaintiff with her
application. He recalled that when the plaintiff learned she needed a doctor’s
note to gain admission, she did not complete her application. Considering the
work of a HCA entails functions similar to those of an LPN, one would expect
the plaintiff to see that the same cautioning functional capacity experience
and advice that pushed against a career as an LPN would have applied to the
work of a HCA, despite its much shorter program length. This lack of foresight
may reflect the plaintiff’s intense desire to get started on a career as soon
as possible. Consequently, she ended up not paying close attention to the
details of program prerequisites like medical certificates.

[85]        
The defendant submitted the fact that the plaintiff continued to
volunteer at the Hampton Residence after she failed to complete her application
for the HCA program shows she was capable of working as a nurse. But the
plaintiff was not engaged in nursing at the Hampton Residence. She basically
visited with the residents and played games with them. Tasks such as bringing
fresh beverages to the residents were not mentioned; but I assume some work
like that went on. In any case, accepted evidence shows the plaintiff was
passionate about being with and helping people. The fact she continued to
volunteer consists with that and does not prove her capable of working as an
LPN.

.2         
MTI application, SETA program – December
23, 2012

[86]        
That same month that the plaintiff did not follow through with the HCA
application, on December 23, 2012, the plaintiff applied for admission into the
Special Education Teaching Assistant program, (“SETA”) at MTI, a private
institution that offers career courses. Mr. Burge found out about the SETA
program and showed information about it to the plaintiff after he found her
angry and discouraged from her discussions with Mr. Shew. He encouraged
her to press on and to keep positive. By then, the plaintiff had satisfied all
the HCA admission requirements except for supplying a medical certificate to
confirm she was physically fit enough to complete the program.

[87]        
As discussed more fully a little further on, MTI declined the
application; the plaintiff lost all motivation, and did not want to do
anything.

[88]        
Counsel for the defendant strongly criticised what he submitted was the
plaintiff’s abandonment of, or false career starts in, the HCA program.

[89]        
In April 2013, she enrolled in the Social Services program at UFV and
was about halfway through it when the trial ended in the fall 2014. In effect,
the defendant submits the plaintiff abandoned chosen career options prematurely
or unnecessarily. I will deal with this theory and the plaintiff’s response
later, but mention it here so that the relevance of events now to be canvassed
will be more obvious.

[90]        
The plaintiff met with two career advisors at MTI about what programs
were available in fields that involved working with people, and in which she
might enroll straight away. An MTI advisor recommended the SETA program to her
which was set to start in January 2013. The first of the two advisors told the
plaintiff she needed to apply for a student loan and pay the pre-registration
fees, which she did. A second interview occurred with another advisor. It did
not go well from the plaintiff’s perspective and the advisor told the plaintiff
her application had been declined.

[91]        
The plaintiff’s testimony about the contents of the interviews was
confusing. In the second interview, I gleaned that the plaintiff learned her
application had been declined and that in the same second interview, the
subject of her back problem arose. One would logically expect this subject to have
come up in the first interview, but it appears to have come up in the second
interview. The plaintiff recalled the second interviewer telling her she should
apply again and bring a medical certificate to show that she was physically
capable of completing the program. As we saw, a medical certificate was
mandatory and the plaintiff had not obtained one from her family physician. In
my view, it was likely this deficiency that formed the backdrop for the subject
of back problems at the second interview. In any case, it was from the body
language and tone of the advisor’s comments that the plaintiff formed an
impression her back problems had prevented her admission into the program.

[92]        
The plaintiff told the court how angry and frustrated she felt after MTI
declined her application just four days before classes were scheduled to begin.
This prompted her to send MTI a strongly worded email about her perceived
unfair treatment. On cross-examination, the plaintiff granted that the advisor
never actually came out and said concerns about her back were the reason her
application had been declined; she inferred it from body language and tone. It
is noteworthy that when MTI responded to her email, they offered three other
options and suggested she apply for admission into the SETA program, again.

[93]        
The plaintiff agreed the LPN and HCA programs had both required a
medical certificate, and that she had never obtained one. She did not
satisfactorily explain why she had overlooked this requirement for the SETA
program. It is also hard to see why she would have been so upset when she had
not met what was a stated compulsory perquisite to registration. If the plaintiff
had a medical certificate in hand, the plaintiff and an advisor could have
discussed it and determined whether it was an impediment, whether some
accommodations might be made for her, and so on. So it is somewhat speculative
to assume the contents of a medical certificate inevitably would have barred
admission.

[94]        
But the plaintiff stressed her experience in Mr. Shew’s functional
capacity assessment and his comments about the incompatibility of her lower
back problems with the demands of an LPN career had brought home to her the
realization that a career as an LPN was not open to her. This is
understandable, but it begs the question why proceed with the application, or
why be so angry at what the plaintiff seems to have already thought was the
inevitable. Further, the plaintiff did not follow up and obtain a medical
certificate for a new application for the HCA program at the next opportunity.

.3         
UFV’s Social Services program – April
9, 2013

[95]        
On April 9, 2013, UFV accepted the plaintiff’s application for the UFV
Social Services diploma program. Mr. Burge looked into that program and helped
her to complete the application. The plaintiff explained she relied on him so
much because this was her third try for admission into a program and she was
left feeling “hopeless, overwhelmed and weak” from the experiences and Mr. Shew’s
advice to try again on her own. Mr. Burge, on the other hand, remained “so
positive”. He repeatedly reminded her of her main goal which was involvement
with people and to make a difference in their lives. He encouraged her to keep an
open mind and to change careers if necessary. She thus became more willing to
see things from a different career perspective and to apply for the Social
Services program.

[96]        
It is noteworthy that a person working in this field is not a Social
Worker. They perform para-social worker functions, at a level of responsibility
somewhat comparable to the standing of a paralegal in a law office. Social
Service workers provide a variety of social services. Accreditation and
experience in this field produce credit towards a professional social work
degree, in which the plaintiff expressed interest. The plaintiff attended the
summer 2014 term for the Social Service worker program and earned six credits.
In the 2014 term, which is when the trial ended in November, she was still enrolled.

[97]        
The plaintiff, already in the Social Services program when she testified,
expressed reservations about this career. She said she had come to believe from
what she had heard from a teacher and others in the field how much office and
desk work was involved. She did not like this. She stressed she was a hands-on
person, that her heart’s desire was to help troubled women and children,
especially, one on one, and that she did not want to be sitting at a desk in an
office all day.

[98]        
To contradict this negative perspective, counsel for the defendant referred
the plaintiff to Exhibit 23, which contained a few excerpts from a bursary
application she submitted to UFV, written after she had had been admitted into
the Social Services program. Its contents contrarily expressed a highly
positive outlook on the program. The plaintiff explained Mr. Burge had persuasively
encouraged her not to give up, rather to press on and continue pursuit of a
career, keeping in mind her main objective was to work with people. The
plaintiff said she decided to focus on Mr. Burge’s positive-thinking
narrative and began to discern a career in the Social Services field would give
her opportunity to help others.

[99]        
In the application, the plaintiff mentions her car accident five years
earlier, the fact that she suffers from chronic back pain, and that it makes
sitting uncomfortable. She stated that “the job I am currently in [referring
here to Blessings Christian Marketplace] presents no issues for my back”. On
cross-examination, the plaintiff testified that she was not meaning to say her
back pain did not prevent her from performing her duties, not that she suffered
no pain when working there.

[100]    
The second para. of the bursary application states:

[C]hronic back pain … has prevented
me from getting into any [LPN] related programs. While that was emotionally
challenging, I was able to take a new look at things and what I wanted to do
career-wise, and discovered that a career in Social Work actually fits my
personality and desires better in some ways. I haven’t yet narrowed my career
goals down, as my experience in the field is still somewhat limited. … My main
goal is to obtain a job that allows me to help people in need. Helping troubled
women and children is what my heart desires to do, and I hope that my
educational path in Social Work can provide me with opportunities to do this.

[101]    
A para. headed ‘Academic/educational goals’ expresses the
plaintiff’s interest in attending University, to which end, she states:

…I am also choosing my electives
in a way that will allow a seamless transition into a Bachelors of Social Work
degree, which is another two years on top of my current program. Once my
diploma program is done, I plan to complete the additional two years to obtain
my degree over a three to five year period, as I start a family, so that I have
my degree by the time I turn 30, in 2019.

[102]     Asked on
cross-examination about her statement that social work fit her personality and
desires better in some ways, the plaintiff agreed that was a false statement, explaining
it was one made in an attempt to see things in a positive way, as Mr. Burge
had been encouraging her to. The plaintiff acknowledged, however, that someone
would be relying on that statement when they considered her bursary
application.

[103]     At this
point, the plaintiff was only four and a-half weeks into the practicum, her experience
in the field still limited; and she agreed one of the ways to meet her heart’s
desire to help “troubled women and children” was through social work.

[104]    
Defence counsel also referred the plaintiff to a portion of the
plaintiff’s application for admission to the UFV Social Services diploma
program: Exhibit 25. In the sixth unnumbered para. of that exhibit, after
the plaintiff wrote about having seen her mother’s unconditional love and
acceptance of all the children in her care, and of seeing the difference one
person can make, something she hoped to replicate in a career, she continued to
write:

Initially, I was leaning towards
healthcare. Looking closely at the two fields, I have come to believe that the
field of social work provides more opportunity for my passion for helping
others to more directly impact people’s lives.

[105]     Although Mr. Burge
helped the plaintiff craft the language, she agreed the statement represented
her true feelings at the time. However, then backing away from them, she explained
she had expressed these feelings based only on what she had been reading about
the work. Now, however, she had begun to appreciate she would have to spend a
lot of time behind the desk.

[106]     Even so, she
agreed she enjoyed moments in the programing and found satisfaction in her
practicum.

[107]    
At p. 102 of the February 26, 2014 transcript, the plaintiff testified:

Q         … [You are] roughly perhaps halfway through
the diploma program, you don’t have a complete and full understanding of what’s
available with your social work diploma.

A          It has nothing to
do with the amount – whether I get paid or not … . What I’m saying is just
being behind the desk is where the irritation comes in. … [I]f the practicum
was to do one-on-one people throughout that time, if I was to be in a hospital
like changing a diaper or actually talking to the person, sitting beside their
bed and whatnot, if that was the practicum, I would not be – that wouldn’t be
an issue. If the practicum was involved in actually people, me being out there
instead of behind a desk, and just on my own, it’s – I find that I’m – what I
have to offer is being destroyed, right? I feel like that part of me isn’t
being put to practice. That is what I’m – that’s where the frustration comes
in.

[108]     On further
cross-examination, the plaintiff acknowledged the work she was doing on her
practicum had been a positive experience, that it fed her “heart’s desire”
because she was connecting with the clients on a human level, sitting with them
and helping them, etc.

[109]     The
plaintiff also agreed with counsel’s suggestion that although she had been
involved in the motor vehicle accident and had experienced difficulties, she
had continued throughout the years since to be a resource to others; a person
others could lean on.

[110]     The
plaintiff’s testimony and expectations about the caring professions reflect a naivety
about the paperwork required in the caring professions, and its indispensable
part in any institutional caregiving work. From further training and experience
she will come to appreciate the careful maintenance and charting of service
reports and patient care provides valuable information about clients and
patients, which in turn, reduces the chances of negligence, makes available to
caregivers historical information about the person being cared for that may
lead to insights into their conditions and needs; and, over-all lead to
superior caregiving. The plaintiff will have to come to terms with that fact of
life that abides in all fields involving service to people, secular or
religious, in education, in medicine, in social work, or in any of the
professions. I expect the plaintiff will come to appreciate those significant benefits
that will come from diligent record keeping; and that having such information
can make the time spent one-on-one with the client or patient safer and more
illuminating for the both her and the person cared for. I expect the plaintiff
will mature and come fully to terms with the inevitability and the benefits of
good client charting and see that it will make her a more effectively caregiver.

                          
7         
Medical witnesses

[111]     Five
medical witnesses and one economist testified. Briefly summarized, they
testified the following.

                                                                          
.1         
Dr. Deepak Grover

[112]     In his
fourth and final report dated December 28, 2013, Dr. Grover agreed with
other experts that what was thought at one time to be a subtle fracture of the
L1 vertebra was not a fracture, rather a minor wedging, either congenital or
caused by an imaging error. He agreed with Dr. Sovio, called by the
defendant, that the plaintiff should not be subjected to further investigations,
which he opined were “totally pointless.” He felt the plaintiff needed to
“continue to lead an active lifestyle and needed some reinforcement to return
back to work if possible.” As for the future, however, on the assumption that
the plaintiff continued to experience pain, he opined she had come to the point
where she was suffering with Chronic Pain and that this was very hard to manage
and cure. He felt this will persist to a degree permanently.

.2         
Dr. Cecil Hershler

[113]    
Dr. Hershler is a physiatrist practising in Vancouver for thirty
years. He provided three reports, dated September 26, 2012, January 18, 2013,
and September 5, 2013. In the last report, he opined at p. 3:

Diagnosis:

…As was noted in the Addendum to Medical Legal Opinion dated
January 18, 2013, the MRI of the lumbar spine has ruled out disc protrusion,
impingement of nerve roots and/or radiculopathy. I remain of the opinion that Ms. Renaerts
has chronic mechanical low back pain.

Prognosis:

Over four years have now elapsed since the accident on June
12, 2009. Throughout this period, Ms. Renaerts has experienced persistent
pain affecting her spine. The pain is made worse with prolonged sitting,
standing or heavy lifting and carrying. It is eased to a degree with
chiropractic treatments and stretching or traction of the back.

Although [there] is still some chance of further improvement,
it is unlikely that she will ever reach a fully pain free state. It is more
likely than not that she will have to deal with some degree of back pain
indefinitely.

.3         
Dr. Mark Frobb

[114]     Dr. Frobb
has been a physician for 40 years and in active clinical practice for 35 of
those years. He focuses his practice on the non-surgical treatment of chronic
neck and back pain. He sees roughly 1,000 patients each year. Of those referred
by counsel, 90% are plaintiffs. He has prepared over 500 expert medical legal
opinions and has been qualified as an expert in this court on the non-surgical
treatment and management of vertebral spinal column pain syndromes, including
whiplash – associated disorder. He examined the plaintiff on July 31, 2013.

[115]    
At p. 6 of his 46-page report dated July 31, 2013, he diagnosed as
follows:

1.         Biomechanical
dysfunctional vertebral movement disorder affecting the pelvic girdle, lumbar
vertebral segments and thoracolumbar junction vertebral segments – secondary to
acceleration/deceleration spinal injury.

2.         Chronic
myofascial pain syndrome – secondary to biomechanical dysfunctional vertebral
movement disorder.

3.         Early
degenerative spondyloarthrosis of the lumbar spine associated with mild disc
bulge at L5/S1.

4.         Chronic pain disorder –
secondary to an acceleration/deceleration spinal injury.

[116]     In his
report at p. 43, he explains biomechanical dysfunctional vertebral
movement disorders are generally secondary to the “torsional forces experienced
in the acceleration/deceleration spinal injury whereby the facet joints moved
to their extended physiological range of motion, become fixed in position and
are prevented from returning to the central neutral position.”

[117]     At
p. 39 of his report, he explains myofascial pain syndromes are
characterized by “regional muscular pain patterns typically involving a group
of muscles which functionally control complex movements in a specific
anatomical area. Myofascial pain syndromes often begin following a specific
discreet injury such as may be described in an acceleration/deceleration injury
as in Ms. Renaerts’ case. He further notes myofascial pain syndrome
typically involves a referral of pain, “radiating to the gluteal assembly and a
posterior lower limbs”.

[118]     He
believes the plaintiff’s chronic pain was not accounted for by a mood, anxiety
or psychotic disorder.

[119]    
As for prognosis, at p. 7 of his report, he opined:

[The plaintiff’s] failure to demonstrate significant
improvement in her chronic pain disorder following the accident in spite of
multiple modalities of therapy places her complete recovery at significant
risk.

 [A]lthough there is a possibility that functional capacity
will improve over time with the recommended therapy … in light of the chronic
nature of the complaints this outcome is not certain, indicating that Ms. Renaerts’
present clinical condition on the balance of probabilities likely represents a
status of maximum medical improvement and accordingly is likely to affect
competitive employment opportunities.

[120]    
He also opined that Ms. Renaerts pre-existing “spondyloarthropathy
in the MRI study of October 2012, places Ms. Renaerts at a risk of
developing these accelerated degenerative changes.” And that could subsequently
result in “peripheral nerve root impingement” with contribution of greater
disability and impairment.”

.4         
Dr. Derryck Smith

[121]     Dr. Smith
is a psychiatrist. He assessed the plaintiff on April 9, 2013. He has been a
physician and practising psychiatrist for 45 years. He has been a clinical
professor of Psychiatry at UBC since July 1993. He has been widely published,
presented, and has been recognized for his achievements in his field. He has been
extensively involved, in various ways, in the faculty of medicine at UBC.

[122]    
At p. 6 of his 22-page April 23, 2013 report, he noted the
plaintiff presented as having no particular emotional difficulties until asked
directly. On direct questioning of the plaintiff, he noted:

7.         … [It]
is clear that she is unhappy, depressed and worried. She cries more than she
has done in the past. She has had vague suicidal thoughts, particularly when
she is in pain. She is worried that her career choice of being a licensed
practical nurse will not unfold because of back pain. She also reports
spontaneous anxiety attacks that are infrequent.

9.         She has disturbed sleep with
difficulty initiating and maintaining sleep.

[123]    
At p. 6 of his report, Dr. Smith diagnosed:

Axis I  1. Pain Disorder Associated With Both Psychological
Factors and a General Medical Condition

2.         Dysthymic Disorder [i.e. low grade
depression]

3.         Panic Disorder Without Agoraphobia
[i.e. literally, fear of the marketplace]

4.         Other Female Sexual Dysfunction Due to Pain

Axis II No diagnosis

Axis
III Low back pain
– specific diagnosis deferred to other experts

Axis
IV Psychosocial stressors:
moderate. The biggest stressor appears to be that this woman is unable
to pursue her desired occupation as a licensed practical nurse due to ongoing
back pain.

Axis
IV Global Assessment of Functioning (GAF) …. I am assigning
her a GAF score of 60, indicating moderate symptoms. I do not believe that her
psychiatric symptoms are currently causing much in the way of impairment with
social or occupational functioning. This scale does not rate impairment due to
her back pain.

[124]    
Dr. Smith agreed with Dr. Frobb’s first letter, that if the
plaintiff were to continue to have back pain over the next few years stating “it
is likely to become a chronic lifetime condition”, p. 7 of 22. With
respect to her psychiatric conditions he opined at p.8:

I am guardedly optimistic that
with the implementation of the treatment recommendations I have made there will
be significant improvement in Ms. Renaerts’ sleep, pain, anxiety and
depression. I will defer to others on the specific issue of whether [there]
will be an improvement in low back pain per se and the subsequent disability
associated with low back pain.

[125]     The
defendant criticised Dr. Smith’s statement the plaintiff presented as
having no emotional difficulties in the face of daunting, difficult childhood
experiences, which I will not detail here. Also criticised is his failure to
note a reference in Dr. Enn’s clinical records to previous emotional or
psychiatric complaints and a prior referral for sexual functioning that is also
relevant to a claim for the cost of future sexual counselling. This may go to
weight and the tenability of an award for sexual counselling. But, I see no
reason not accept what are, in effect, diagnoses of chronic pain disorder, low
grade depression, pain related pain disorder, and panic disorder. The latter
may not feature in other reporting and elicited only on direct questioning, but
consists with other testimony. Those conditions have not deterred her
activities of daily living. Dr. Smith noted the plaintiff had a good set
of friends, had been in a romantic relationship for several years, and had maintained
a reasonable level of energy and interest in her usual activities: This is a
fair and balanced assessment.

.5         
Mr. Dominic Shew

[126]     Mr. Dominic
Shew has been an occupational therapist since 2003. He conducted a first
functional assessment on October 26, 2012. The assessment occurred over the
course of seven hours. After the plaintiff completed a series of questionnaires,
Mr. Shew conducted a musculoskeletal assessment. The plaintiff then
participated in physical and functional testing that included sitting,
standing, walking, lifting, carrying, crouching, squatting, bending, stooping,
grasping, and overhead and forward reaching: see p. 3 of Mr. Shew’s
report.

[127]    
Mr. Shew summarized at p. 5:

In summary, during testing Ms. Renaerts
demonstrated the capacity to perform activity that requires sedentary to
modified medium level strength through full body range; for example, occasional
two handed lifting from floor to shoulder height level from 0-30 lbs. She also
demonstrated the capacity to manage loads from sedentary to medium level
strength as long as they were maneuvered between floor to knuckle height; for
example, occasional two handed caring over 50 feet from 0-50 lbs.

She did not demonstrate any significant functional
restrictions tolerating activity requiring hand dexterity, grasping, walking,
climbing, balancing and vertical and horizontal reaching.

She consistently demonstrated
restrictions tolerating activity requiring standing and below waist level
positions requiring bending, stooping, squatting and crouching. There were
measured restrictions in two handed lifting. In addition, there were also
restrictions in her tolerance for sitting.

[128]     When
assessed, the plaintiff worked in food services at Lynnwood Retirement Home,
and as a barista at Chilliwack General Hospital. Mr. Shew concluded (at
p. 6) the plaintiff was “likely safe and gainfully employable on a part time
or “casual” basis with the accommodations and work modifications currently in
place.” As for her position as a barista, he opined, “this occupation is a
“good fit” for her physical capacity as she is able to change positions as
needed to manage her symptoms while attempting to remain productive.”

[129]    
Regarding her overall employability, he stated at p. 6:

…[W]hen considering her
functional restrictions and the measured decline in her capacity over the
course of the one-day assessment, her overall capacity to compete for work in
an open job market has been reduced. That is, the overall number of jobs that
she would be able to compete for and sustain is likely limited as a result of
her physical restrictions related to her trunk/spine.

                                                   
.01         
Second functional capacity assessment

[130]    
The second assessment report, dated November 12, 2013, was about as long
and as extensive in its elements as was the first assessment. At the time of
the second assessment, the plaintiff was enrolled as a student in the Social
Services program at UFV. At p. 6 of the second assessment, he stated:

…[If] she completed this
program, she would be eligible to work as a Social Worker. Regarding
this occupation, based on my clinical experience, I would generally concur with
the NOC’s and DOT’s descriptions of the typical physical requirements of this
line of work …. [The NOC refers to the National Occupational Classification
system that is accepted nationally for rating occupations in Canada. The DOT is
the USA counterpart of the NOC.]

[131]     Mr. Shew
noted at p. 4: “a decline in speed and function on the second assessment
in the areas of bending, stooping, encroaching (repetitive and prolonged);
sitting (during the follow-up interview and completion of tasks requiring her
to maintain a work intensive posture); walking (fast/repetitive); and standing
(prolonged).” Again, he noted high levels of physical effort and opined further
at p. 4 that “the results of testing are an accurate representation of her
present physical and functional abilities and limitations.”

                                         
.02         
Suitability for Social Work

[132]    
On the subject of working as a Social Services worker after the
plaintiff graduates from UFV, Mr. Shew clarified that upon graduating from
the diploma program, the plaintiff would work at a paraprofessional level in
the Social Services field. Completion of the diploma program in Social Services
would allow her to work in the various occupations that Mr. Shew had
identified in his report, these include: Financial Assistance Worker, Community
Service Worker, Family Support Worker, Residential Service Worker, Mental
Health Worker, Teacher’s Aide, Special Education Assistant, Case Aid Caseworker,
Family Support Worker, Activity Worker, and Companion/Home Support Worker. These
categories are all essentially rated limited strength/sedentary/light, except
for Activity Worker, which is rated light to medium strength; and Companion
Home Support Worker, which is rated medium.

[133]    
Mr. Shew opined that “based on test results, Ms. Renaerts
demonstrated adequate strength and cardiovascular ability to safely manage the
basic physical demands typically required of this line of work.” He noted
further at p. 6:

[She] demonstrated difficulties tolerating tasks requiring
her to sustain her spine in various positions while reaching in front and/or to
the side of her body in a seated position (e.g., static positioning of the body
while reading, writing, using a computer, et cetera). In my clinical
experience, the ability to perform and tolerate lengthy periods of sitting
while either driving throughout the community to attend meetings and/or
completing desk- type duties is a crucial requirement of this work.

…She is likely safe and gainfully employable to work as a
Social Worker since she demonstrated the capacity to perform brief periods of
the essential demands. However, her difficulties with lengthy periods of
sitting suggest that she is best suited for a position that allows her the
opportunity to take breaks as needed to rest, stretch, or change positions. In
addition, the measured restrictions suggest that prolonged and repetitive
sitting will likely result in a reduction in her productivity as her work day
and week progresses. To better manage her symptoms while attempting to remain
functional, I anticipate that she will also require ongoing and appropriate
ergonomic equipment and an appropriately set-up workstation.

[Emphasis added.]

[134]    
Regarding the plaintiff’s capacity to complete the LPN program, Mr. Shew
opined at p. 8:

…[S]he has the residual physical capacity to perform some
aspects of this line of work for brief periods but did not demonstrate the
capacity to safely manage the full strength requirements. She also demonstrated
the capacity to periodically manage the fundamental body positional demands;
however, she is not well-suited for the standing and low-level positions
particularly if such demands are required for extended and frequent periods.

Thus, she is best suited to remain in nursing specialties
that do not require significant or repetitive physical demands. For example, if
she was to obtain a position that required light activities such as the
administration or monitoring of medication, I anticipate she would likely be
safe and capable of physically tolerating such work on a part time and full time
basis at a competitive level.

In contrast, if Ms. Renaerts was to attempt to work in
areas such as Palliative Care, Emergency, Geriatrics, et cetera, she may be
placing herself, her co-workers and her patients at risk of injury due to her
restrictions with heavy lifting and managing low-level positions. Thus, she did
not demonstrate the ability to perform or tolerate more physically demanding
specialties within this occupation on a part time or full-time basis at a
competitive level on a durable basis.

In essence, her restrictions as noted above will likely
adversely impact her overall ability to compete for the full scope of positions
within this profession.

[Emphasis added.]

[135]     Mr. Shew
clarified that when students enter a program, they must meet the physical
requirements for a LPN or RN. After they complete their schooling, they can
then move into more specialized areas that may demand less physicality or
difficult body positions.

[136]     On the Social
Science worker field, he noted, “the ability to perform and tolerate lengthy
periods of sitting while either driving throughout the community to attend
meetings and/or to complete desk-type duties is a crucial requirement of this
work”, p. 6, Nov. 12, 2013.

                                         
.03         
Shew cost of care recommendations

[137]     Mr. Shew’s
cost of care recommendations at pp. 9 -10 of his second assessment dated
November 16, 2012 are as follows:

Recommendations and
Comments

Rehabilitation Efforts

1.         In my
opinion and in accordance with the medical information, Ms. Renaerts
should continue to be involved in an active, directed and goal-oriented program
with the purpose of increasing her overall strength and tolerance to activity
particularly involving her trunk/spine. An active program may also help in
reducing the frequency and intensity of flare-ups.

Although it is my understanding
that she previously attended a rehabilitation program, based on my review of
the medical documentation this occurred back in 2009.

a.         Considering
the results of the FCE/WCE and the duration of her restrictions, I anticipate
that she would benefit from update sessions with [a] Physiotherapist to
help her create an individualized program and to ensure that she is performing
the exercises appropriately and at the correct frequency and duration.

I called Fraser Valley Physiotherapy
(604-792-2141) and was informed that the cost for the initial assessment is
$60/session and subsequent sessions are $45/session (they do not charge HST).

In my clinical experience,
individuals typically participate in initial sessions twice per week for
a period of six to eight weeks (12-16 sessions) and then followed by a re-assessment
to determine if further directed/supervised sessions are required.

Based on the information above, the
estimated cost for the initial six to eight weeks is from $555
([1 session x $60] + [11 sessions x $45]) to $735 ([1 session x $60] +
[15 sessions x $45]).

b.         In
order to promote her ongoing involvement in an active exercise program, I
recommend that Ms. Renaerts have access to a fitness facility of
close proximity to her residence.

The cost of a gym pass through the
Chilliwack Leisure Landing is $41/month, $116.75/3-months and $410.25/year
(604-793-7946).

Supportive Footwear

To reduce stress to her spine while participating in her
exercise routine and activities within her community, Ms. Renaerts would
likely benefit from supportive footwear.

1. Supportive
athletic/orthopaedic shoes such as brands as New Balance and Saucony from
locations such as The Running Room typically cost from $120 to $180. However,
since Ms. Renaerts would be purchasing shoes for her daily usage anyway at
approximately ½ of the
cost, the difference would be approximately $60 to $90 per pair.

At the lower differential cost of
$60 per pair, I anticipate that the approximate yearly cost is $67
(taxes included; $60/pair x 12% HST).

2. Supportive
casual/orthopaedic shoes which can be purchased from organizations such as
The Right Shoe, New Balance, et cetera, typically cost from $100 to $200.
However, again since she would be purchasing shoes for her daily usage anyway
at approximately ½ of
the cost, the difference in cost between regular casual shoes as opposed
to more supportive casual shoes would be approximately $50 to $100 per pair. I
anticipate she will require a replacement once per year.

At the lower differential cost of
$50 per pair, I anticipate that the approximate yearly cost is $56
(taxes included; $50/pair x 12% HST).

Vocational Assistance

1.         Based
on the results of the FCE/WCE, she did not demonstrate the capacity to perform
the complete physical requirements of the work of either a Nurse’s Aide or a
LPN. However, when considering her age, residual capacity and functional
limitations, she is likely gainfully employable at other various other
occupations.

As such, it is my opinion that she
would benefit from the assistance in the form of a Vocational Assessment and
Vocational Counseling to assist in developing a future and long-term
vocational path that will accommodate for her ongoing limitations.

Vocational Counselors presently
charge from $90 to $110 per hour for their services.

Presently I am unable to determine
the precise amount of time and/or assistance that Ms. Renaerts will
require from a Vocational Counselor and/or Job Coach as this is beyond my area
of expertise.

a.         In addition,
if she were to be retrained, there may be further costs for, for
example, schooling, equipment and books. However, I cannot provide a cost
estimate for such items at the current time.

2.         In the
future, if Ms. Renaerts was to participate in further schooling, it
is my opinion that an Ergonomic Assessment of her home workstation
occur. The assessment is to identify the most appropriate ergonomic equipment
and modifications to her workstation to aid in the management of her symptoms
and to maintain or increase her productivity.

I anticipate that approximately 1.5
to two hours of assistance from an Occupational Therapist to complete this
assessment and to monitor the recommendations/equipment would likely be
sufficient and be reasonable.

Occupational Therapists working
performing case management services working in the private sector in B.C.
presently charge from $96 to $125 per hour. Travel time is currently billed at ½ the hourly rate or full
rate if deemed excessive and $0.50 to $0.60 kilometer for travel distance.

The estimated cost is approximately
$144 to $192 (1.5-2 hours x the lower rate of $96/hour) plus travel time
and distance and HST if applicable.

a.         This
estimate does not include any costs for potential ergonomic equipment
(e.g., an adjustable task chair, a footrest, a laptop workstation, et cetera)
or workstation modifications.

3.         If Ms. Renaerts
was to obtain in a future occupation that required her to be situated at
a workstation either in sitting or standing, it is my opinion that the
provision of an Ergonomic Assessment should be provided. The assessment
is to identify the most appropriate ergonomic equipment and modifications to
her workstation and to provide suggestions regarding her body mechanics to
manage her symptoms and increase her productivity.

I anticipate that approximately two
to three hours of assistance from an Occupational Therapist to complete
this assessment and to monitor the recommendations/equipment would likely be
sufficient and be reasonable.

Occupational Therapists working
performing case management services working in the private sector in B.C.
presently charge from $96 to $125 per hour. Travel time is currently billed at ½ the hourly rate or full
rate if deemed excessive and $0.50 to $0.60 kilometer for travel distance.

The estimated cost is approximately
$192 to $288 (2-3 hours x the lower rate of $96/hour) plus travel
time and distance and HST if applicable.

a.         This
estimate does not include any costs for potential ergonomic equipment
(e.g., an adjustable task chair, a headset, an anti-fatigue mat, a sit-stand
stool, et cetera) or workstation modifications.

[Emphasis in original.]

[138]     I note some
positive findings in Mr. Shew’s assessments highlighted during the
defendant’s extensive cross-examination. For example, in the areas of range of
motion, vertical reaching, ability to do overhead shoulder work and horizontal
reaching repetitively; and an ability to carry 50 pounds over 50 feet. Measured
restrictions and reported increases in symptoms with moderate to heavy two-handed
carrying and lifting should also be noted. Further, the repetitiousness of an
action in a work setting was a pivotal element. The strengths Mr. Shew
noted did not redress the plaintiff’s functional limitations or attenuate his
conclusions and recommendations, considering all the test results from the two
assessments and the conclusions he drew from them.

.6         
Ms. Mair Edwards

[139]     Ms. Edwards
is an occupational therapist. Her November 13, 2013 report incorporates various
recommendations by physicians and Mr. Shew, and adds some of her own recommendations
for future care and treatment. Her report was well-organized and easy to follow.
Ms. Edwards’s extensive experience extends to 1983. From there, it encompasses
work in, and service to, a very wide variety of hospitals, care institutions, government
agencies and private clinical work. Included in her report, are instructive
photographs of the plaintiff’s living accommodations, utility areas at home, vacuums
she uses, etc., and her workstation.

[140]     Ms. Edwards
made a positive impression as an experienced, occupational therapist. She took
considerable care to present her report and estimate in a logical and readable
fashion, but I do not accept all her recommendations. I will dispose of them
and their associated costs later in these reasons.

.7         
Dr. Olli M. Sovio

[141]     The
defendant called Dr. Sovio. He graduated from medical school in May 1974
and began to serve residencies in 1975 in Finland, continuing with them between
July 1980 and July 1985. He was admitted as a fellow of the Royal College of Surgeons,
in 1985. He saw the plaintiff on June 11, 2013. He noted at p. 2 of his July
15, 2013 report, the plaintiff did not complain of any problems in her neck, no
loss of range of motion there, no limitations, no pain, no headaches and no
problems with her eyes, ears, mouth and throat.

[142]     At
p. 2 of his report, he further noted that although the plaintiff did not
relate any trouble with her shoulders, elbows, wrists, or hands, she did state
that she “occasionally does feel pins and needles in her hands and the fingers.
Similarly, she feels the same thing in her toes”.

[143]     Further on
p. 2, he notes the plaintiff reportedly told him that “[a]s far as her
back is concerned she feels discomfort in the low back in the lumbosacral
region. She has a good range of motion but it hurts.” And at p. 3, he
notes “She doesn’t have any pain radiating into the lower extremities.” The
plaintiff also reported that she has exercise equipment that she has at home
and went to the gym two or three times weekly using the elliptical trainer and
doing some weights.

[144]     At
p. 5 of his report, Dr. Sovio opined that the plaintiff “suffered
some soft tissue injury in this particular accident and continues to complain
of ongoing low back discomfort.”

[145]    
When doing his physical examination (at p. 6), he stated:

[He] could not demonstrate any
abnormality which was suggestive of any type of specific injury to the bony
structures or any specific area. The patient, however, had some generalized
discomfort in the spine and the paravertebral muscles from T8 or 9 downwards all
the way to the lumbar spine. Range of motion was well maintained. There was
nothing to suggest neurologic abnormality.

[146]    
At p. 4 of his report, he states the following findings on physical
examination:

As far as the spine was concerned
the alignment was normal. The patient complained of some discomfort from
approximately T8 to 10 and down to the lumbosacral region on palpation of the
spines. All across the lumbosacral region she complained of some discomfort on
palpation. Range of motion of the lumbar spine in flexion, extension, side
bending and rotation was normal but the patient complained of some mild
discomfort with extension and flexion but as mentioned there was no limitation.
Straight leg raising was normal. Femoral stretch test was normal and Faber test
was normal.]

[147]    
He recommended the plaintiff carry on with an exercise program, but did
not feel any further formal treatment was going to be of any benefit or that
any further investigation was indicated. He did not feel that the plaintiff’s
situation should be unduly limiting. He disagreed with Mr. Shew’s opinion
that the plaintiff was not suited to work as a LPN, or that she should work as
a food service worker only on a part-time basis. He states at p. 6, “I do
not agree with Mr. Shew and generally speaking mechanical back pain does
not usually limit one to that agree and permanently.” Finally, he notes at the
bottom of p. 6:

It would appear that from the standpoint of emotional
situation it would be important to reassure this patient that nothing drastic
is ongoing as far as her back is concerned and that a positive attitude would
be very beneficial. It has been shown that an exercise program is beneficial both
from the physical and psychological standpoint and I would encourage the
patient to continue on with that.

facts
admitted

                          
1         
Timeline of significant events
including the first Notice to Admit

[148]     I prepared
two tables of dates and events that conveniently set out an overview of many of
the significant dates and activities that have occurred since the accident. They
also incorporate some of the admissions the defendant made in response to two
Notices to Admit that the plaintiff served on her. The first table shows how
many months elapsed between the accident and the event. As these reasons
traverse the matters summarized in the tables, the tables will be marked as Schedules
“A” and “B”, and appended to these reasons. As they incorporate admitted
facts, the admission may also be significant if this matter proceeds further.

Plaintiff’s
credibility

[149]     The
defendant challenged the plaintiff’s credibility.

                          
1         
Defence submissions on credibility

[150]     Counsel
stressed the plaintiff’s medical experts relied on her reporting and left the
question of reliability and credibility to the court. He submits the court must
be exceedingly careful when little or no objective evidence explains a
continuing injury and when complaints of pain persist for periods that extend
beyond what would be considered a usual recovery.

[151]     In
particular, he submits the plaintiff’s evidence should be considered cautiously
on the question of what the plaintiff did, or failed to do with respect to
becoming an LPN. He submits the plaintiff overstated her injuries, particularly
when contrasted with her actual recreational and vocational pursuits. Counsel
submits it is clear the plaintiff is not entirely reliable and that a full
representation of the facts came to light only on cross-examination.

[152]     Counsel
for the plaintiff replied directly to some specific matters defence counsel relied
on to show the plaintiff’s testimony was not trustworthy, namely: only learning
from cross-examination of Mr. Burge she had picked blueberries in 2014;
that the plaintiff’s completion of her 40 volunteer hours at Hampton Residence
showed she had the capacity to work as an LPN; that she had not been truthful about
her promotion after the accident to the position of manager at a new Subway
location; that she had not restricted her activities on her YWAM trip; that
what she saw as poor patient care when she worked at Sodexo had discouraged her
from pursuit of a career in health care; that there is no reliable medical
evidence to support Dr. Smith’s diagnoses of dysthymic disorder, panic
disorder, and sexual dysfunction with pain.

[153]     The
plaintiff could not testify about her having picked blueberries in 2014, as she
had in 2013, because this happened after she testified. The plaintiff testified
her activities at Hampton Residence consisted of spending time with the
residents and playing games with them, which she had enjoyed. The plaintiff specifically
mentioned her Subway promotion on direct examination. As for her activities at
YWAM, as previously discussed, the plaintiff specifically mentioned back
problems she experienced and how she could not go out on free time as she would
have liked to do. The plaintiff specifically stated that her experience at
Sodexo had strengthened her resolve.

                          
2         
Plaintiff’s position on
credibility of the plaintiff’s testimony

[154]     Counsel
for the plaintiff submitted that after seven hours of detailed
cross-examination the plaintiff’s testimony was unshaken; that she presented as
honest and trustworthy, and was careful when she gave her evidence. He submitted
it is only natural her recollection of past events would be incomplete, given
the accident occurred five years ago. He stressed collateral witnesses,
particularly Mr. Burge, Ms. Van Klei, Ms. Tilley, and Ms. Morris,
corroborated the plaintiff’s testimony and symptoms of pain, low mood, and persistent
significant functional limitations. Counsel further stressed that none of the physicians
who examined Ms. Renaerts, including Dr. Sovio, had any concerns about
exaggeration. Counsel also stressed that their findings conformed to the
plaintiff’s subjective complaints. In particular, he noted that after two full
days of testing and functional assessment separated by a year, Mr. Shew
was able to conclude his assessment consisted with the plaintiff’s report, and he
found her reliable.

                          
3         
Discussion on plaintiff’s
credibility

[155]     Credibility
essentially involves an assessment of witness’s demeanour and the
trustworthiness of a witness’s testimony based on their apparent sincerity as a
witness and on the accuracy of their testimony, as discussed by Dillon J. in Bradshaw
v. Stenner, 2010 BCSC 1398, at para. 186. Referring to the cases, she
noted this assessment entailed consideration of many factors; that the
credibility of a witness depends ultimately on the consistency of their
evidence with other accepted evidence; and with the probabilities of the case
proven to exist at the material time. Faryna v. Chorny, [1952] D.L.R.
152 (B.C.C.A.); R. v. S. (R.D), [1997] 3 S.C.R. 484, at para. 128.

[156]     During the
course of these reasons, I touched on a handful of concerns from the
plaintiff’s testimony. At times, the plaintiff did not directly answer
questions. But I did not find her overall credibility as a witness shaken in what
was an able, detailed, and probing, seven-hour cross-examination. The fact the
plaintiff’s low back pain has persisted calls for scrutiny, but it is also an
implicit must-have in the operative diagnosis of a chronic pain disorder. The
plaintiff recovered from her other soft tissue issues. Dr. Sovio did not
deny an injury or symptoms, though he did find the plaintiff’s situation should
be unduly limiting to her. He recommended physical fitness, core exercises, and
a positive attitude. There is merit in that recommendation. Experts called by the
plaintiff also recommended core exercises.

[157]     The
defendant’s stand on credibility demands an assumption that the plaintiff
deliberately exaggerated or falsified her symptoms. The whole of the
plaintiff’s life aspirations, character, and conduct before the accident argue
against such a mindset. I accept the plaintiff’s testimony she expected to
recover soon after the accident; that her failure to do so caused her much
consternation and frustration; the court saw that she sought appropriate
treatment; sought and maintained employment; furthered her education, more or
less; and was, effectively, fairly stoic, which, in a sense, was what Dr. Sovio
had recommended. Her testimony consisted in essentials with admitted facts,
accepted facts, the medical evidence, and the probabilities. Where there was
less than full correspondence, the discrepancies were not such as to unsettle
her testimonial honesty and to warrant a finding she lacked credibility.

loss Earning
capacity past and future

                          
1         
Past loss of earning capacity

.1         
Lost earnings before return to
Subway one month post-accident

[158]     The
parties agreed that the plaintiff’s loss of earnings for the period between the
accident and her return to work at Subway was $1,404. But, the defendant maintains
the actual amount owed is nil because EI payments and payments by ICBC covered
the full amount. The plaintiff points out, however, that the only amounts
received from ICBC were advanced payments for the total amount of $1,265. This
amount is deductible from any judgment obtained, and pursuant to the agreement
the parties made with respect to the advance would be applied first towards
wage loss. As for the $550 in EI benefits the plaintiff received in 2009, these
are not deductible. Accordingly, the plaintiff is entitled to a judgment of $1,404,
with the advance to be applied once the judgment is finalized.

.2         
Additional pre-trial earnings
losses

[159]     The plaintiff
seeks an additional award for income for lost employment earnings between the
accident and the trial. The plaintiff relates these losses to her diminished
capacity to pursue a career as a LPN or a HCA, the latter of which would have
ushered in her entrance into the LPN program. The plaintiff relies on
calculations Mr. Hildebrand made to assist the court in making this
assessment.

[160]     Mr. Hildebrand
presented two different sets of facts for the court to consider. The first one
assumes the plaintiff would have become licenced as an LPN by spring 2014. If
this is correct, she would have earned $14,143 as an LPN before trial. The next
scenario assumes the plaintiff would have found employment as a HCA a year
earlier, by spring 2015. If this happened, he calculates the plaintiff could
have earned $38,928. For both of these possibilities, Mr. Hildebrand
assumed the plaintiff will have completed her studies in the Social Services
program by the spring of 2015.

[161]     As we saw
earlier, the plaintiff applied on June 29, 2012 for admission into the HCA program
at UFV, believing this diploma program would prepare her for her admission into
the LPN program.

[162]     The
defendant points out that the plaintiff had to take the required Biology course
twice and did not complete her academic perquisites until January 2013, just in
time for her to apply for a position as a SETA. The defendant suggests her PASS
grade suggests the true level of her ability and interest. In fairness to the
plaintiff, credible evidence strongly supports the view that the plaintiff’s poor
mood and the discomfort and frustration caused by her pain detracted from her academic
performance.

[163]     The
plaintiff makes a reasonable point about the plaintiff’s failure to take step
the HCA program required of her and to obtain the required medical certificate
from a physician. She did not make an appointment to see Dr. Enns, or
other physician. As noted earlier, the plaintiff’s confidence in her capacity
to work as an LPN had been sapped by her functional capacity assessment with Mr. Shew
in October 12, 2012, and by what she took to be his opinion she was not suited to
that field. However, that appointment would not occur for about four months, in
October 2012 and the report was not completed in November 2012.

[164]     The
evidence does suggest a pattern of incomplete or abandoned applications. The
defendant can argue that events never developed to the stage where the court
could see if she could be cleared medically to take the course, or if some
accommodations might be available, or whether the plaintiff’s performance,
perhaps buoyed by being in the program, might exceed her low expectations.

[165]     But the
plaintiff and her situation must be viewed in proper context. I accept she was
experiencing pain and that her limitations frustrated and discouraged her. She
had difficulty putting matters in the longer-term perspective her friends urged
her to assume. She had supportive friends and childhood experiences in life to
steel her against adversity, but she was on her own, worked to live, and
worried a lot about her future. It is not as if she stood passively by and,
within a few months after the incomplete HCA application, she gained admission
into the Social Services program at UFV.

[166]     A finding
that the plaintiff suffered from a chronic back pain condition does not
automatically mandate the assumptions Mr. Hildebrand used to make his
calculations. But considering the evidence as a whole, I find the plaintiff’s diminished
capacity limited her completion of a post-secondary career program to a
significantly compensable extent. As the plaintiff points out, she showed
commitment to hard work and financial independence at a young age. She
maintained nearly full-time hours while attending school. Without her injuries,
she likely could have worked longer hours and obtained higher paying and more
physically challenging positions. She would not have any injury to prevent from
obtaining a medical certificate for admission into one of the programs she
applied to enter.

[167]    
The plaintiff’s earnings have been:

[168]    
We do not have Ms. Renaerts’ earnings for 2013. But as she
successfully gained admission in the Social Services program at UFV, they are probably
low.

[169]     I find the
plaintiff likely suffered some pecuniary loss caused by her diminished physical
capacity from the date of the accident to the date of trial. A fixed calculation
would have to stand on too much speculation; only an assessment is feasible. Allowing
a moderate amount for the fact that the plaintiff faced some restrictions in
the number of hours and nature of work she could engage in following the
accident, I award the plaintiff $5,000 for past loss of earning capacity in
addition to the one month’s loss of wages in the month following the accident.

      
2         
Loss of future earning capacity

.1         
Legal Principles

[170]     Correctly
conceived,
damages for loss of earning capacity compensate the plaintiff for the
loss of the value of the work they would have done if the accident had not
occurred; i.e. for the loss of the earning capacity the plaintiff used to have,
not for the loss of their earnings per se: Rowe v. Bobell Express Ltd., 2005
BCCA 141.

[171]     The future
that leads to an income loss must be a substantially possible one; conducive to
the estimation of chances that future will occur: Steward v. Berezan, 2007
BCCA 150 at para. 17.

[172]    
In Perren v. Lalari, 2010 BCCA 140 [Perren] at para. 32,
the Court of Appeal explained the plaintiff’s burden of proof.

[32]      A plaintiff must always prove … that there
is a real and substantial possibility of a future event leading to an income
loss. If the plaintiff discharges that burden of proof, then depending upon the
facts of the case, the plaintiff may prove the quantification of that loss of
earning capacity, either on an earnings approach, as in Steenblok, or a
capital asset approach, as in Brown.

[Emphasis in original.]

[173]     A judge
determining the plaintiff’s future loss of earning capacity must account for
all substantial possibilities and assign those possibilities weight based on the
likelihood of their occurrence in light of all the evidence: Parypa v.
Wickware, 1999 BCCA 88 as cited in Perren at para. 14.

[174]     A judge
may assess future loss of earning capacity in a variety ways.

[175]     First, if
a plaintiff manages to prove a quantifiable pecuniary loss, the judge may use
what Finch J.A. in Pallos v. Insurance Corporation of British Columbia, [1995]
B.C.J. No. 2 (C.A.), called the “real possibility” approach. It may
also be referred to as the “earnings” approach. This approach involves
mathematical calculations that use a variety of data. For example, a minimum
annual income for the present value of the plaintiff’s projected earnings for
the working years available to them may be calculated, its total present value then
calculated and the present value of projected actual earnings during those
remaining work years deducted. A second method is to award the plaintiff the
present value of their entire annual income for a certain number of years. A
third method is to award a percentage of the present value of the plaintiff’s
projected earnings. Or, if the plaintiff has to retrain and take a lesser
paying job, or to work fewer hours, the difference between their
without-accident earnings and with-accident earnings may be calculated and
awarded. Ultimately, even if some form of the earnings method is adopted, the judge
must still consider the final tally of the calculations, and after considering
the evidence as a whole, ensure the award overall is reasonable and fair to
both parties.

[176]     If the plaintiff
has proved a capital loss that cannot be quantified in a pecuniary way, which
is often the case with young persons with no academic or earnings history, the
court should adopt the method used in Steenblok v. Funk, [1990] B.C.J. No. 1158
(C.A.) [Steenblok]; Brown v. Golaiy, [1985] B.C.J. No. 31
(S.C.) [Brown]; and Kwei v. Boisclair, [1991] B.C.J. No. 3344
(C.A.).

[177]     The first question, therefore, is
whether the plaintiff’s injuries have caused them a loss of future income. The
second question is whether the plaintiff has proved the substantial possibility
of a quantifiable loss of future income that warrants an earnings-based ‘real
possibility approach’. If not,
damages must be assessed using the capital asset approach and a Brown
methodology. This approach regards a person’s capacity to earn income as a
capital asset. It is the nature and the extent to which a person’s injuries
have diminished the value of that capacity that becomes compensable. Putting a
value on that capital loss engages assessment of the value of the loss monetarily
proportionate to the following considerations:

a)       the plaintiff has been rendered less capable
overall from earning income from all types of employment;

b)       the plaintiff is
less marketable or attractive as an employee to potential employers;

c)       the plaintiff
lost the ability to take advantage of all job opportunities that might
otherwise have been open had they not been injured; and

d)       the
plaintiff is less valuable to themselves as a person capable of earning income
in a competitive labour market.

[178]     These considerations are not
exhaustive.

[179]     The Brown method is also
subject to the overarching principle that future possibilities must be
both realistic and substantial. Therefore, this qualification has to be
read into those considerations, or any other ones the judge finds appropriate. To
be realistic, a possibility must be one to which the court can reasonably attribute
a meaningful percentage, such as 25%. If not, this may imply the possibility is
speculative.

[180]     If a future loss is not conducive
to arithmetic methods, the use of relevant economic data, statistical
information on earnings, and other relevant numbers is not precluded. The
purpose of such information is to enhance judicial assessment and to ensure the
award is fair to both parties. Likewise, the four considerations in Brown
are useful guides when considering a Steenblok type of loss.

.2         
Plaintiff’s position

[181]     The
plaintiff stressed the following points:

§ 
The plaintiff’s long-time interest in a career in the healthcare
field, exemplified by her volunteering at Chilliwack General Hospital as a
candy striper for three years in the interest she developed in an LPN program
while still in high school.

§ 
Her pursuit of the
goal after the accident, confident at first her injuries would improve and
determined to accomplish her original goals.

§ 
That it was only after three years and during the final stages of
completing academic prerequisites for the HCA program when the results of the
Functional Capacity Evaluation brought fully home to her that she did not meet
the physical requirements to work in the healthcare field.

[182]     The
plaintiff relies as well, on the following further considerations:

[183]    
Mr. Shew’s opinion stated at p. 7 of his November 16, 2012
report:

Overall, if Ms. Renaerts
completed this program and attempted to work as this occupation, she would
likely be safe and able to manage aspects of this line of work. However, her
restrictions in terms of strength indicate that she may be placing herself, her
co-workers and her patients at risk of injury since she was unable to safely
perform the full strength requirements.

[184]    
At p. 8, Mr. Shew summarized:

…[I]f Ms. Renaerts desired
to complete her education towards becoming a LPN, she has the residual physical
capacity to perform some aspects of this line of work for brief periods but did
not demonstrate the capacity to safely manage the full strength requirements.

[185]     On
cross-examination, Mr. Shew, responding to the counsel’s proposition that
nursing involves types of work with fewer and lesser physical demands, agreed
that an RN or LPN’s tasks are significantly
different. But, he pointed out, that trainees must demonstrate a baseline
ability to perform all tasks necessary to complete their schooling. He
testified he had conducted considerable research and found that students have
to meet certain basic physical requirements their duties required. Further, he
stated, while it is true that nurses can select certain areas in which to work,
they must first work as a general duty nurse or, in the case of an LPN, general
duty. Further, he explained, moving into other areas of the occupations likely
requires additional schooling.

[186]     The plaintiff referred as well to the
opinion of Dr. Frobb and his description of the plaintiff’s impairments as
"both significant and important", and his recommendations that the
plaintiff restrict her activities to avoid exacerbating her pain. The
limitations involved limiting hours when performing tasks that challenge the
muscles that were involved in her underlying myofascial pain syndrome; the need
for frequent and self-controlled changing of body positions or duties throughout
the day, and the need for permission to sit, stand, and walk around, as
required, to avoid the aggravation caused by static positioning; the need to
limit the frequency or duration of work; the need for small and frequent
breaks, and change of work duties, and/or physical positioning to prevent
exasperation; flexibility in scheduling to allow time off when required; and
possible greater employment costs related to ergonomic accommodations.

[187]     The plaintiff submits she is in the
very early stages of her career path and that it is clear already that her
limitations will affect her opportunity in her current field of study, Social Services.
She submits her inability to pursue hands-on positions means she is left only
with sedentary positions that also aggravate her back pain and leave her
feeling unfulfilled.

[188]     As for the actual loss, the plaintiff
relies on Mr. Hildebrand’s research and calculations.

                                                   
.01         
Earnings method

[189]     According
to Mr. Hildebrand’s calculations, an LPN employed full-time, from April 1,
2014, would earn $1,151,573 to age 65. This represents annual earnings adjusted
for labour market contingencies and a starting annual salary of $41,396.
Undiscounted wages are assumed at $49,000.

[190]     As for a HCA,
the plaintiff would earn $951,410, using the same criteria. This represents an
annual salary also fully adjusted, of $30,583, or $36,636 for full-time,
undiscounted salary.

[191]     As for a Social
Service worker, the plaintiff’s lifetime earnings, using the same criteria,
except a start date of August 7, 2015, to age 65, would be $871,244. If
adjusted for the same start date as for the other careers, the figure would be
over $900,000. This figure assumes the plaintiff would not seek further
education or pursue a degree in social work. This figure is based on an annual
fully adjusted salary in 2015 of $27,709, including non-wage benefits of 9%, and
full-time wages of $25,684.

[192]    
This produces the following annual differentials, using 2015 wage
projections:

[193]    
A loss of $10,000 in wages each year, which represents about 20% of a
LPN’s annual salary, produces a present value loss of $296,440: Hildebrand
report, p. 3.

                                         
.02         
Loss of Capacity Brown method

[194]     Plaintiff’s
counsel points out that a calculation based on a 30% reduction of capacity as a
result of the plaintiff’s injuries, would produce a loss of $352,425. He
submits:

§ 
the plaintiff may be unable to complete, or experience delay in
completing, her diploma;

§ 
she may be unable to find a position after she completes her
schooling, or change jobs more frequently, if she is unable to find a job that
fits her personality;

§ 
she may be unable to work full-time, depending on her position;

§ 
if she has to control her work environment and schedule or work
fewer hours, her chances for promotion and over time will be reduced;

§ 
she may suffer an aggravation of her injury; and

§ 
given her attachment to the work force, she is likely to continue
working if she has children.

[195]     Accordingly,
the plaintiff submits she satisfies the four criteria in Brown et al in
that she is rendered less capable overall from earning income from employment
to which she was reasonably suited and have the capacity to perform. She is
less attractive as an employee to employers than she would have been but for
her injuries; she has lost the ability to take full advantage of all job
opportunities that might otherwise be open to her; and she is less valuable to
herself as a person capable of earning income in a competitive labour market,
compared to what was the case before the accident.

[196]    
In summary, counsel submits:

The evidence of Ms. Renaert’s
desire to pursue a career as a LPN was real and substantial. She was passionate
about healthcare, and she would likely have succeeded in pursuing her dream but
for the collision. Her chronic pain and emotional difficulties are a
significant roadblock in her career progression and the defendant must
compensate for her loss.

[197]     Accordingly,
the plaintiff submits an award in the range of $250,000 – $350,000 is
appropriate.

.3         
Defendant’s position

[198]     Virtually
all of the defendant’s submissions with respect to the range of damages are
influenced by counsel’s position on the plaintiff’s credibility and his
critiques of the medical evidence. Counsel submits the plaintiff failed to
prove the loss of future earning capacity on the balance of probabilities. He
points out that she only first obtained her St. John’s Ambulance First Aid Certificate
in 2013, which was a requirement for the LPN program. He points out, as well,
that the plaintiff never obtained a certificate of fitness for the LPN or HCA programs
Counsel further points out that the plaintiff falsely told Mr. Shew someone
at MTI had told her they rejected her because of her lower back problem. The
plaintiff agreed at trial this information was incorrect.

[199]     Counsel
further submits what is fundamentally absent is any reliable evidence from the
administrators of the LPN program, or the SETA program offered by MTI, on the
plaintiff’s potential or opportunity to enter either program. Counsel submits
this is fatal to much of the plaintiff’s submitted loss.

[200]     Counsel
stressed as well that the plaintiff never submitted a full application for
admission into the LPN program at UFV program or at MTI; whereas she did she
did submit a full application for the Social Services program and was accepted.

.4         
UFV’s LPN program information

[201]     A November
2012 ‘Practical Nursing Program Update’ posted on the UFV website and admitted
into evidence, advises that UFV had changed its one-year Practical Nursing
certificate program to a two-year diploma program, beginning in fall 2012. The
update explains that the new curriculum was developed “because of changing
expectations of Licensed Practical Nurses in workplaces across Canada and in
British Columbia”. The update further explains that the College of Licensed
Practical Nurses of British Columbia required all post-secondary institutions
offering Practical Nursing programs to use the new curriculum.

[202]     According
to the update, the new program at UFV would be longer than the then current one
and would involve 19 months of instruction over a 21-month period. The update
further advises UFV intended to intake students into the program every second
year and that the tuition would increase accordingly to reflect the fact that
Practical Nursing had become a diploma program.

[203]     The notice
cautions that the LPN program is very demanding and that “students will not
have time to work either full-time or part-time. “Effective time management
skills, computer skills, and study skills are critical to success,” the update
cautions.

[204]     The update
advises that the first diploma intake would be December 2012, with a projected
end date of mid-June 2014; the second intake was planned for September 2014,
with an end date of mid-May 2016.

[205]     Another
admitted document, apparently directed towards applicants applying for intake
in September 2014, sets out the higher academic entrance requirements, which
now included a minimum C+ grade in Biology 12 or equivalent, and a minimum C
grade in any of ‘Principles of Mathematics 11’, Foundations of Mathematics 11,
Pre-Calculus 11, or Math 085. Also required, was completion of a ‘Practical
Nursing Human Anatomy and Physiology’ course, with a minimum of a C+ grade,
within five years prior to enrollment.

[206]     This
advisory evidence raises the question as to whether the plaintiff would have
completed her academic prerequisites in time for admission to the December 2012
intake date. The next intake date would have been September 2014. The plaintiff
grants she expected to enroll in 2014. To qualify academically, the plaintiff
would have to take the Human Anatomy and Physiology course. It is not clear
whether the plaintiff’s mathematics upgrading would satisfy the new requirements;
but I understood she had met both her Math and Biology prerequisites as of
December 23, 2012, as this was not contentious.

[207]     It might
be fair to assume that an applicant who had already filed an application under
the old regimen might find some accommodation, but that is speculative.

[208]     What can
be derived fairly from information in the UFV notice is that, as matters stood
for the plaintiff, she would not have been able to enter the program before
September 2014, with an end date of mid-May 2016. The plaintiff can reasonably
contend that pain and mood disturbance hindered her timely completion of her Biology
course, and that but for her injuries, she likely could have completed her
academic pre-requisites before December 2012, and so avoid repetition of her Biology
course, and thus come under the old guidelines. As matters stood under the new
regimen and its plan to take in a new cohort of students every two years, the
plaintiff might not have gained admission until September 2014 at the earliest
or, at worst, 2016. Had she entered the HCA program in January 2013, in the
meantime, a program that also required a student’s full-time attention, it
would have been a challenge for her to take additional courses.

[209]     In any
case, Mr. Hildebrand’s assumption of graduation from the LPN program in
either the spring of 2012 or 2011 is tenuous. At best, there is a reasonable
chance, but for the accident, the plaintiff would have completed a HCA program
by the spring of 2013.

.5         
Other relevant program information
on UFV website

[210]    
UFV information on the Health Care information on the UFV website and
admitted into evidence included the following:

                                                   
.01         
HCA program

What type of career can I expect as a health care
assistant?
Our program will train you to provide daily, personal care for elderly clients
with chronic health problems. Many HCAs find employment in residential care
facilities. Others find employment in home support, providing care in the
individual’s house rather than an institutional setting. A small number of HCAs
are employed in acute care areas in hospitals. All employment involves working
shifts and for the first two to five years will involve being on call.
All HCAs start with casual work and initially may need to work at more
than one job site in order to get sufficient hours of work. Starting salary
ranges from $12 to $19 per hour depending on the worksite. 

                                         
.02         
Social Services program

[211]    
Some relevant information on the Social Services program advised:

Why earn a Social Services
diploma?

UFV’s two-year Social Services diploma program will establish
a strong foundation your career in the human services field. Your studies will
prepare you for a career at the paraprofessional level in social services. This
program will also set you up if you later choose to continue your education
past the diploma level.

The two-year Social Services Diploma Program at the
University of the Fraser Valley will help you prepare for a career at the
para-professional level in the social services field. If you would like to
continue your education past the diploma level, you may if you take the
required pre-requisites, ladder your Diploma into the UFV Bachelor of Social
Work Degree program. You can then work in the field while earning your
degree part-time. Our program plans are tailored to meet your personal
education and career goals.

Why earn my diploma at UFV?

By Taking the Social Services diploma as a foundation
program, you will gain practical job-related skills while earning university
transfer credits. Many of the courses provide transfer credit to universities
in B.C. Besides the core Social Services program, the Social Services electives
give you the opportunity to take courses in specialized topics such as
substance abuse or First Nations studies. Our Social Services diploma program
is offered at both the Abbotsford and Chilliwack campuses.

What type of career can I expect?

As a diploma graduate, you will qualify for a number of
interesting jobs. You will be able to put your skills and knowledge to work in
a variety of careers including community service worker, teacher aide,
residential service worker, home support coordinator, social work assistant,
mental health worker, family support worker, and seniors’ support worker. Many
of our students find jobs through their fieldwork placements, which are
carefully selected to best suit you and your employment potential and career
goals. However, completion of the program does not guarantee that you will
find the job of your choice immediately upon graduation.

…You must be physically and emotionally prepared to undertake
this program of studies.

[Underline emphasis added.]

.6         
Prognosis and capacity for
improvement

[212]     Altogether
considered, no form of treatment will produce substantial permanent improvement
in the plaintiff’s symptoms. A combination of chiropractic treatments,
appropriate fitness activities, including strengthening exercises, and a
supervised fitness regimen would likely reduce her pain and improve her level
of function to a degree. Dr. Frobb opined anaesthetic spinal blocks at the
possible site of the pain and a facet rhizotomy (injection of a heated needle
into the nerves at the facet joint) if further testing confirmed the right
site, could moderate the plaintiff’s chronic pain and her improve her functioning.
This is not a curative procedure and would have to be repeated every six to 18
months.

[213]     The radiological
opinions on whether the December 11, 2012 MRI shows a mild disc bulge and mild
bilateral facet degenerative changes at L5/S1 are at odds. Dr. Connell is
silent on it. Dr. Sovio noted those artifacts, likely based just on the
report, but he thought the spine was normal. Those changes were not caused by
the accident, but Dr. Frobb pointed out acceleration-deceleration injuries
can accelerate degenerative change. There is no evidence that process occurred
in this case. Given the evidence, it is not possible to reliably say either
that the plaintiff’s pre-accident condition disposed her to degenerative
changes and possible interference with her future earning capacity, or whether
her injuries will accelerate the degenerative condition and, in that way,
interfere with the plaintiff’s future earning capacity.

[214]     In summary
on this point, based on the plaintiff’s testimony, and the medical evidence as
a whole, I find the plaintiff had no significant back symptoms before the
accident. There is no consistent medical evidence upon which to find that
whatever spinal condition the plaintiff had predisposed her to future problems,
or that her back injury would accelerate them.

[215]     Given
accepted evidence as a whole, I agree with Mr. Shew that rehabilitation
should focus on healthy activity, core strengthening, and a guided exercise
program. I do not see this form of therapy requires only one assessment, off
you go, and good luck to you. A kinesiologist and properly trained fitness
instructor would encourage the plaintiff to expand her functioning and strength
within safe medical limits and increase her confidence. Further, the plaintiff
would benefit from instruction from her family physician, at no cost, on how to
make the most effective choice and use of pain medication. The plaintiff had
consumed six to eight pills a day.

[216]     Dr. Jacob’s
chiropractic treatments improved the plaintiff’s pain management. An extended
period of his treatments, combined with a guided fitness program, would likely
increase the plaintiff’s physical confidence, and teach her to distinguish
between pains that are harmful and pain that signals a need to stand down.
Further, some short term visits with a physiotherapist to review the
plaintiff’s overall progress, and if necessary to deliver passive modalities
they deemed beneficial as the plaintiff increased her level of activity, would
be a reasonable adjunct.

[217]     Why these
findings in the face of the plaintiff’s evidence that chiropractic adjustments
and physiotherapy treatments were not curative and only helped her manage her
pain better between sessions and two medical opinions the plaintiff does not
required further treatment? Since the accident, the plaintiff has been exposed
to a number of strong stressors as discussed earlier. It includes the stress
caused by the litigation, as the defendant pointed out. She will soon complete
her Social Sciences program, have this case behind her, and see her life settling
into a more predictable pattern. One in which she can commit time and energy to
becoming as strong and functional as possible, no longer subject to the stress
and worry she has been experiencing.

[218]     In
summary, while the plaintiff’s symptoms and limitations are likely to be
permanent, and the general tenor of the opinions on prognosis is at best
guarded, there are also reasonable grounds to expect that through strengthening
exercises, increased activity, and appropriate use of the treatment modalities
and the program just outlined, the plaintiff’s symptoms and level of
functioning could see some improvement on a more sustained basis.

                                            
.7         
Plaintiff’s without-accident
suitability

[219]     Looking at
the plaintiff’s suitability for a career in the medical field without the accident,
the defendant pointed out the plaintiff has a small physical frame. The labour
market contingencies include non-negative labour market contingencies and the
evidence showed the field of opportunities for LPN’s is wide ranging, once an
LPN has spent time as a general duty nurse. The plaintiff was a fit and active
person before the accident. I find no convincing reason to introduce a further
negative contingency based on the speculative possibility that the plaintiff
would not have been able to handle the physical demands of an LPN without the
accident.

.8         
Plaintiff’s with accident chances
of completing an LPN program

[220]     While there is a chance the plaintiff’s symptoms and
functioning could improve enough at least to earn LPN credentials, there is a
substantial risk she could reinjure her back and worsen her situation. Further,
even with some improvement from her current condition her chronic mechanical
back pain would likely expose her to significant risk of aggravation or further
injury, were she to work as a general duty LPN for an extended period and Mr. Shew’s
cautions about safety and functional limitations make sense.

.9         
Prospects for career as a Social Services worker

[221]     Looking at the plaintiff’s present future, she is able
to work as a Social Services worker with confidence. She is concerned about the
amount of sitting involved but ergonomic adaptations can, along with some
common sense adjustments, ameliorate this. A desk that that allows changes
between standing and sitting was not mentioned, but their availability is well-known.
The court saw, the wide range of options and opportunities for advancement
available to graduates in this program. It includes the possibility of
laddering up to a university degree and professional standing as a Social
Worker. The plaintiff expressed keen interest in this. Of course, this requires
further education. With the traits of ambition and focus in hand, there is no
reason to think, and no evidence to say, she could not achieve that goal. I saw
no figure about how much a professional Social Worker earns; of course it would
have to exceed a diploma graduate.

[222]     I find a blended assessment of the plaintiff’s loss of
earning capacity, one that considers Mr. Hildebrand’s earnings information
and calculations, but assesses the award using the Brown capital asset
method, which produces a more fair and realistic award. This would partly
reflect the fact that the plaintiff had not been enrolled in, nor had completed,
a medical caregiver program; and she had never worked in the medical field
before the accident happened. A capital loss assessment should recognize the
plaintiff has the capacity to advance in her current field and to earn
significantly higher earnings than base levels for Social Science workers.

[223]     Considering the evidence as a whole and counsel’s
submissions, I find:

§    
The plaintiff suffers from chronic
lower back pain that will permanently render her less capable overall from
earning income from all types of employments to which she was suited before the
accident, particularly as a caregiver in the medical field. Before the
accident, she owned a real and substantial possibility she would have qualified
as an LPN or HCA. As stated earlier, while there is a chance the plaintiff
could improve enough to complete the LPN program, she would remain exposed to a
greater real and substantial risk she would re-injure or aggravate her back,
prevent further employment in that field, and make her even less capable of
earning income in other employment to which she is now suited.

§    
The plaintiff is less marketable
or attractive as an employee in fields that require “higher physical demands
such as assisting seniors or mentally handicapped or disabled individuals with
personal care, transfers, et cetera”, as identified by Mr. Shew [in his
November 22, 2013 Report].

§    
The plaintiff has lost the ability
to take advantage of all job opportunities that might otherwise have been open to
her had she not been injured; and

§    
The plaintiff is less valuable to
herself as a person capable of earning income in a competitive labour market,
especially in the field of medical caregiving. However, the plaintiff is
capable of employment in the Social Service field and its adjunctive
specialities. There is a realistic and substantial chance the plaintiff could
improve her earnings through further education and training in the field –
including a degree in Social Work. Accordingly, she could substantially improve
her earnings in that field.

[224]     In placing a value on the loss of capital asset, I have
considered the contents of Mr. Hildebrand’s scenarios, and the evidence as
a whole.

[225]     I award the plaintiff $200,000 for loss of future
earning capacity. This includes some recognition for the realistic possibility the
plaintiff will require further education and training to reduce the gap between
her earnings as an LPN, and that the plaintiff’s injuries likely delayed her
entry into employment in the caregiving field by about six months.

Cost of future
care

                          
2         
Guiding principles

[226]     The base test for determining whether a claim for
future care is justified requires recourse to the medical evidence. The
plaintiff must satisfy two basic criteria. First, the item or service must be
medically justified. Second, the claims must be reasonable: Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d (1987), 49 B.C.L.R. (2d)
99 (C.A.), at para. 192.

[227]     An award for cost of future care does not substitute
for health and personal happiness, though to the extent money can sustain or
improve the plaintiff’s mental or physical health, it may form part of the
claim: Andrews v. Grand & Toy Alberta Ltd., [1978] S.C.J. No. 6,
at para. 25.

[228]     The following table integrates information and
recommendations in Ms. Edwards’ report, the actuarial and economic
calculation of Mr. Hildebrand, including further expositions contained in
his last report dated May 15, 2014. (Multipliers are included only if they
deviate from what Mr. Hildebrand, assumed. The amounts awarded in the
table do not account for negative or positive contingencies on the gross
amounts.)

[229]     The operative assumption is that the plaintiff suffers
from chronic back pain, that it can be challenging to treat, and that she
derived some benefit, for pain management, from some types of treatments, such as
chiropractic. I discussed the rationale for making an award for physiotherapy,
kinesiology, chiropractic treatments, and physiotherapy earlier, when
considering the claim for loss of future earning capacity, as it had somewhat
influenced that award.

[230]     Claims where the evidence of medical benefit or necessity
was insufficient, or were a cost likely incurred without the accident, or were
otherwise unreasonable, were cut or reduced.

[231]     The plaintiff had required some counselling relating
to intimacy before the accident and, if the foundation for the claim is pain,
the plaintiff can seek counsel from her family physician. Some of the claims
are unduly speculative.

[232]     I have not grossed up the total or reduced it, as I
considered the realistic future possibilities when making the individual
awards. The following table summarizes the items claimed, the amounts claimed,
and the awards.

                                                                   
.1         
Cost of Care Table of Awards

[233]    
I see no need for an increase or decrease for negative or positive
contingencies.

Non-pecuniary
damages

[234]     The defendant
referred the court to the following cases on non-pecuniary damages (I have not
listed further referred cases that are too dissimilar, my own, or those out of
the appropriate range):

§ 
Bilanik v. Ferman, [2014] B.C.J. No. 767 (S.C.) – in Bilanik,
the 32-year-old female plaintiff’s soft tissue injuries resulted in persistent
headaches and pain, difficulty sleeping, and occasion depression and low mood.
She was nonetheless able to participate in travel, sports, and recreational
activities. She was able to continue to work full time. Although no significant
physical disability resulted, the court found some impairment of life and
lifestyle would continue. [$60,000.]

§ 
Devilliers v. McMurchy, [2013] B.C.J. No. 862 (S.C.)
– in Devilliers, the female plaintiff suffered a significant back injury
that caused significant and chronic pain, likely permanent. Medication allowed
her to function with restrictions, but the court was concerned about the
medications losing their efficacy; and if her pain could not be effectively
controlled, her condition could become more disabling. [$75,000].

§ 
Elgood v. Ellison, [2010] B.C.J. No. 574 (S.C.) – in Elgood,
the 65-year-old male patient suffered a low back injury which, three years
post-accident, left a guarded prognosis. The judge considered it likely the
plaintiff would experience indefinite low back pain that would likely limit his
ability to perform tasks that biomechanically stressed the low back. He could
work, but only by enduring a level of chronic pain not likely to be alleviated
over time. Noting the plaintiff’s age, the judge awarded $35,000.

§ 
Lubke (Litigation guardian of) v. Mattin, [2009] B.C.J. No. 1084
(S.C.) – In Lubke, most of the plaintiff’s injuries resolved within
about 12 months, leaving him, however, with back pain that limited his physical
activities from time to time. His chronic intermittent mechanical low back pain
was either triggered or exacerbated by activities such as heavy labour, lifting
and bending. However, the pain was not constant, and manageable with
medications. The court noted the plaintiff was a young teenager when injured
and that an adult lifetime was a long one to suffer chronic back pain. Moreover,
the court found his injuries affected other aspects of the plaintiff’s life
significantly, including reduced participation in sports and some social
withdrawal. [$30,000].

§ 
Miley v. Abulaban, [2014] B.C.J. No. 2030 (S.C.) – in
Miley, the plaintiff suffered a permanent back injury, but the resulting
pain had been significantly alleviated by medical treatment. The judge found
the plaintiff would continue to have difficulties with recuperation, work and
yard activities; and had to be careful not to aggravate his back. The injury
was deemed permanent. [$52,500.]

§ 
Prempeh v. Boisvert, [2012] B.C.J. No. 413 (S.C.) –
in Prempeh, the plaintiff suffered chronic mechanical low back pain and
experienced varying levels of pain and discomfort persistently, as well as
episodic flare-ups. She worked in a residential care home and was required to wear
a lumbar corset for support, which the court found in the medical evidence
would lead to progressive weakness in her core muscles. She was also found to
be prone to episodic aggravations of a wrist injury that she suffered.
[$60,000.]

§ 
Rutter v. Allen, [2012] B.C.J. No. 170 (S.C.) – in Rutter,
the male plaintiff also suffered chronic back pain. The court found it unlikely
he would return to his pre-accident level of activity but, through exercise,
could achieve some improvement. The plaintiff had led a very active lifestyle
before the accident and was involved in a number of sports, particularly golf
and running. His injuries, particularly the back injury, led to a significant
change in his lifestyle. He also curtailed other day-to-day activities including
housework and household maintenance. He had difficulty sleeping and was more
irritable. He had been able to maintain full-time employment. The judge found
his chronic pain would likely continue well into the future. [$65,000.]

§ 
Sandher v. Hogg, [2010] B.C.J. No. 1612 (S.C.) – in Sandher,
the court found the plaintiff’s injuries to her shoulder, upper back, and lower
back, had caused pain and suffering; and that in future, she would suffer
continuing chronic pain for an uncertain period of time. [$40,000.]

[235]     The
plaintiff referred the court to Stapley v. Hejslet, 2006 BCCA 34 at para. 46,
in which Kirkpatrick J. writing for the Court of Appeal, set out a number of
factors that could influence an award in non-pecuniary damages, which I have
considered. Having regard to these factors, the plaintiff emphasized that she
was 19 when the collision occurred and that five years later, at age 24, her
injuries had continued to take a toll on her, both physically and emotionally.
She submits her prognosis for recovery is poor, and likely she will have to
contend with chronic pain permanently. Counsel also submitted that the injuries
she sustained affected her during the prime of her life as an important
transitional time.

[236]     Counsel
stressed as well the chronic nature of the pain, submitting it
"infiltrates" every aspect of her life, that the medical evidence,
considered as a whole, suggests that the plaintiff has reached maximum medical
improvement and the condition will be permanent. Also stressed is the
significant affect on her work and recreational activities.

[237]     The
plaintiff is still able to engage in former recreational activities, but not to
the same degree or for as long as before.

[238]     As for
emotional suffering, the loss of lifestyle, and impairment of social and
marital relationships, counsel stressed the testimony of Mr. Burge and the
changes he observed in her personality. The plaintiff relied on the following cases:

§ 
Trites v. Penner, 2010 BCSC 882 – a 30-year-old
male plaintiff. Moderate soft tissue injuries to neck and back, and some
chronic pain affecting most aspects of life. Non-pecuniary damages awarded:
$80,000 [in 2014 $].

§ 
Andrusko v. Alexander, 2013 BCSC 985 – a 26-year-old male
plaintiff, DJ and labourer. Soft tissue injuries many resolved, some
intermittent chronic back pain, permanent difficulties, outside of work not
affected. Non-pecuniary damages awarded: $80,000.

§ 
Hawkins v. Espiloy, 2014 BCSC 1804 – a 30-year-old female
plaintiff, LPN. Soft tissue injuries and permanent low back, hip and gluteus
symptoms. Decrease required from full-time work, became guarded, engaged in
fewer activities discouraged by limitation to part-time work. Non-pecuniary
damages awarded: $90,000.

§ 
Olson v. Ironside, 2012 BCSC 546 – a 19-year-old female
plaintiff, cook. Soft tissue injuries to neck and back, related headaches, a
painful jaw disorder, nightmares, depression, panic attacks, post-traumatic
thoracic outlet syndrome and chronic sleep disruption. Non-pecuniary damages
awarded: $103,000 [in 2014 $].

[239]     I
considered the cases cited, which assist somewhat. However, each case, as is
commonly stated, is different. Assessment of non-pecuniary damages is a
somewhat nuanced matter. Not many cases can be slotted into the same range as a
specific case.

[240]     While it
is true that the plaintiff’s inability to pursue a career as an LPN had a major
impact on her emotional well-being and self-confidence, she likely will find her
current field in Social Sciences just as rewarding, particularly after she becomes
involved in areas that interest her and give her opportunities for the personal
contact with others she finds so satisfying.

[241]     Chronic
mechanical back pain is her only really significant injury, as the others
cleared up within a couple of months or so of the accident. The record shows
that she made some improvement with chiropractic treatment and physiotherapy,
but I agree with those medical opinions that have opined the emphasis should be
on strengthening, fitness and suitable activities. I do not see chiropractic
adjustments and physiotherapy and the assistance of a kinesiologist and fitness
instructor as the means of a cure, rather, as the means of helping her progress,
and through strengthening, building self-confidence, be better able to cope with
her limitations and reduce them, to some degree. This is not a case where the
plaintiff has had to give up on her recreational activities. She is capable of
independent living, albeit, she will require some limited assistance with housekeeping,
such as annual cleaning. I have made some allowance for loss of homemaking
capacity; but in my view, considering the nature of her homemaking limitations,
$5000 is a reasonable representation of her loss in that area.

[242]     The
plaintiff has sought to get on with her life to the best of her ability, with
the encouragement of her friends, who amply attest to her limitations and the
pain and limitations she has experienced. It is important to note that the
plaintiff sustained these injuries at a time when she was somewhat vulnerable,
not living at home, supporting herself and having to manage what was a fairly
complex life and difficult set of responsibilities.

[243]     I award
the plaintiff $75,000 for non-pecuniary damages, inclusive of loss of
homemaking capacity.

[244]     The
plaintiff is entitled to an award of special damages for medication and
treatment aids of $374; for physiotherapy and chiropractic treatments of
$1,208; and for travel expenses of $1,950.81, less meals of $12.81. Therefore,
$1,938 in total. Irrespective of whether Mr. Burge drove the plaintiff to
the appointments, or the plaintiff would have had to make them herself, her
injuries necessitated travel costs to attend appointments that, but for the
accident, she likely would not have had to undertake.

Did the plaintiff
mitigate her damages?

[245]     The
plaintiff has a positive duty to take all reasonable measures to reduce her
damages, including undergoing treatment that could be beneficial. Danicek v.
Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 234;
Brown v. Raffan, 2013 BCSC 114 at para. 117.

[246]     Once the
defendant has proved the defendant caused their injuries, the defendant has the
onus of proving the plaintiff acted unreasonably, and considering all the
circumstances, reasonable conduct would have reduced or eliminated the loss. Gilbert
v. Bottle, 2011 BCSC 1389, at para. 202;
Brown at para. 117.

[247]     In
assessing the reasonableness of the plaintiff’s actions, limited financial
resources and medication side effects become relevant factors. Brown, at
paras. 122, 125; Polovnikoff v. Banks, 2009 BCSC 750, at paras. 468
– 470.

[248]     The
plaintiff testified Dr. Jacob’s chiropractic treatment proved the most
beneficial treatment she received. She discontinued treatments because her
income did not allow her to continue. Her annual income in the years 2009 to
2012 was no more than $25,000 annually. In 2010, it fell to $10,519. As
admitted, the plaintiff several times requested Part 7 funding from ICBC for a
kinesiologist, psychologist, and personal trainer but received no response. Dr. Jacob’s
treatments were not curative but gave some temporary relief and helped the
plaintiff manage her pain better.

[249]     The
plaintiff remained reasonably active, exercised, and used pain medications to
control her symptoms. The defendant criticized the YWAM trip and its costs, and
submits she could have used those funds for treatment. The plaintiff
participated in physical activities on the trip, albeit with pain, and took
medications as necessary. Activity is evidently beneficial and the trip apparently
had psychological benefits.

[250]     The
plaintiff maintained employment throughout and had to support herself. The
defendant has not shown what losses claimed to the date of trial would have
been eliminated or reduced in a significant way. She likely would have gained
some benefit from extended sessions with a kinesiologist, trainer and
psychologist, and she asked the adjuster to fund. She could not afford these
treatments. Dr. Sovio opined the plaintiff does not need any more
treatment.

[251]     Considering
all the circumstances, I find the plaintiff has acted reasonably to mitigate
her damages and her damage award should not be reduced for a failure to
mitigate.

adverse inferences
for failing to call witnesses

[252]     Regarding
adverse inferences for failing to call witnesses, these related to a failure to
call treating physicians, particularly the family practitioners, Dr. Enns
and Dr. Lynch; various lay witnesses the plaintiff had listed in her trial
brief, but did not call; a representative from MTI, the ICBC adjuster; and
other friends and work colleagues of the plaintiff.

[253]     It is not
necessary for a party to call every possible witness who could provide relevant
testimony in support of a claim or a reverse-onus defence. They must call
sufficient evidence to satisfy the burden of proof.

[254]     The idea
that the court ought to draw an adverse inference against a party for not calling
a particular witness is connected to the “best evidence” rule, in the sense
that an inference adverse to a party’s case can be drawn fairly only where it
can be shown that the witness whose testimony was not produced was superior to
that which was presented to the court: Buksh v. Miles, 2008 BCCA 318, para. 30.

[255]     If a party
provides sufficient reason as to why they did not call a witness, the court
should not draw an adverse inference: McTavish v. MacGillivray, [1997] B.C.J.
No. 1719 (S. C.), at para. 14.

[256]    
As Saunders J.A. explained, the threshold question is whether a
reasonable inference can be drawn that the party did not call the witness
because they would have given detrimental evidence to that party’s case: Buksh,
at para. 35. The court also noted that asking for an adverse inference has
become an overused tactic: Buksh, at para. 32.

[257]    
Regarding the adverse inference counsel asked the court to draw for an unidentified
medical report listed in part four of the plaintiff’s list of documents and not
served, the plaintiff submitted there is no evidence the evidence in the report
over which privilege was claimed would be superior to the evidence the court did
hear. In Milburn v. Ernst, 2012 BCSC 93, where Fitzpatrick J. stated at para. 89:

[89]      Counsel for Mr. Milburn
is entitled to prepare his case, and obtain whatever expert reports that might
assist in advancing his case. To suggest that any decision not to use an
unidentified expert report leads to an adverse inference in respect of any case
is going well beyond the general proposition relating to adverse inferences.
The disclosure process is intended to provide opposing counsel with the means
of testing the claim of privilege, not to allow such claims to be made that an
adverse inference should be drawn in these circumstances.

[258]    
As for the plaintiff’s decision not to call Dr. Hans and Dr. Lynch
as witnesses, the plaintiff relied on Fabretti v. Gill, 2014 BCSC 899, paras. 32
– 33. In that case ICBC had asked the court to draw an adverse inference rising
from the plaintiff’s failure to call her family physician. The court said:

[32]      The family physician, Dr. Low, did not
testify. ICBC submitted that I should draw an adverse inference from his
failure to do so. The plaintiff submitted that Dr. Low’s testimony was not
required because ICBC had available to them his entire clinical records, plus
the opportunity to speak to him directly and call him as a witness if it so
desired.

[33]      I agree with counsel
for the plaintiff. In this day and age of broad discovery of documents and free
exchange of information, the possibility of an adverse opinion should have been
known to ICBC, who could have subpoenaed Dr. Low (Buksh v. Miles,
2008 BCCA 318 at paras. 33-35). While the onus is always on the plaintiff
to prove his case, he does not have to call every conceivable witness in order
to avoid adverse inferences being drawn. I accept that the viva voce evidence
of Dr. Low which would have added little to what was already in evidence
by way of his clinical records

[259]     Counsel
for the plaintiff submitted that there was no need to call either Dr. Enns
or Dr. Lynch, given the disclosures already made. In the case of Dr. Enns,
he pointed out Dr. Enns’ clinical records contain no reference to pre-accident
musculoskeletal complaints or lower back pain and that the defendant’s counsel
extensively cross-examined the plaintiff on pre-accident clinical records and
the visits she had with Dr. Enns. The plaintiff called experts who had Dr. Enns’
records and reviewed them. Nothing in them changed their opinions; further, as Dr. Enns
is not an expert, his testimony would not have assisted the court more than experts
who testified and were cross-examined. Perhaps most significantly, the
defendant conducted an interview of Dr. Enns, but chose not to obtain a
report from him or to call him as a witness.

[260]     I agree
with the plaintiff that no inference can be fairly drawn that Dr. Enns
would have given evidence detrimental to the plaintiff’s case.

[261]     As for the
various lay witnesses not called, the plaintiff relied on Chabot v. Chaube,
2014 BCSC 300 at para. 137. In that case, I noted that contemporary
disclosure rules, which are more expansive than in the past, had given parties
equal opportunities to call witnesses who might assist the litigation position.
There is no indication any of the lay witnesses not called were not available
or unknown to the defendant. As for the 13 lay witnesses listed in the trial
brief, counsel for the plaintiff advised that they were listed as a precaution;
and that it was unrealistic to expect all those witnesses would or should have
been called given the days available for conduct of the trial. The parties did
not have enough days to complete the trial as it is. Shorter trials, not longer
ones, should be encouraged. If parties are going to be met with a finding that
an adverse inference ought to be drawn against them every time they fail to
call a possibly relevant lay witness, trials would be unnecessarily longer,
adjournments more common, and costs higher. Particularly now, where contact
information for parties is exchanged, or their identity and contact information
is well-known to both parties, it should be rare to see an adverse inference
drawn from a failure to call a lay witness unless it is clear they could offer
superior evidence, or particular evidence significantly relevant to a point in
issue that no other witness could provide.

[262]     In any
case, the reasoning of counsel for the plaintiff is satisfactory. An adverse
inference is not warranted in this case.

Summary of damages

[263]     In summary,
the plaintiff’s damages are assesses in the following table:

[264]    
The plaintiff is entitled to costs at Scale B, unless some offers to
settle have been considered.

“N. Brown J.”

APPENDIX

                                                                                                             
1         
Schedule “A”

                                                                                                             
2         
Schedule “B”

Notice to Admit No. 2