IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150921

Docket: M112078

Registry: Vancouver

Between:

Lucita Badillo

Plaintiff

And

Prithvi Bedi and
Jatinder Kaur Bedi

Defendants

– and –

Docket: M120317

Registry:
Vancouver

Between:

Lucita Badillo

Plaintiff

And

Brennen Tyler Hurst

Defendant

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
INTRODUCTION

[1]            
The plaintiff claims damages for injuries suffered as a result of two
separate motor vehicle accidents.

[2]            
The defendants have admitted liability for both accidents and do not ask
that the damages be apportioned. The defendants submit that the plaintiff suffered
soft tissue injuries as a result of the first accident and may have experienced
a short aggravation of her injuries as a result of the second accident, but that
the injuries suffered as a result of the two accidents are not as severe as the
plaintiff claims.

[3]            
The defendants also state that two falls the plaintiff experienced
caused significant trauma to the plaintiff’s upper body, in particular, her
left shoulder. In assessing damages, the defendants submit that the Court must consider
the falls as unrelated to the two motor vehicle accidents.

[4]            
The plaintiff submits that the appropriate range of the total award, by the
component heads of damages, is:

[5]            
For the reasons that follow, the plaintiff is awarded $409,100.

II.              
KEY DATES

[6]            
In considering the evidence, I found it useful to have a chronology
handy. To assist the reader, I set forth below the key dates:

III.            
PLAINTIFF’S BACKGROUND

[7]            
The plaintiff is 55 years old. She was raised in the Philippines in
modest circumstances. In 1979, she immigrated to Canada with her parents and
younger brother. They first lived in Winnipeg, Manitoba. Her older brother and
an aunt had immigrated earlier.

[8]            
In the Philippines, she graduated from high school (6 years elementary,
4 years high school) and completed a two-year course as a medical secretary.

[9]            
She has worked hard to build a life for her family and herself in
Canada.

[10]        
The family is close-knit. The plaintiff’s husband works as a technician for
a helicopter repair company, as does their elder son. Each of their children,
all of whom are now in their twenties or early thirties, lives with them (their
daughter with her husband) and helps the plaintiff and her husband financially.

[11]        
Within a few weeks of arriving in Winnipeg she had full-time work as a
seamstress (her mother had been a seamstress) at a jeans factory. She worked
overtime when available.

[12]        
The plaintiff met her future husband at the jeans factory. They married
in July 1982. They had three children.

[13]        
In Winnipeg, the plaintiff was employed in a variety of full-time jobs
while raising her family. After several years, the jeans factory went bankrupt.
She subsequently worked, at a glove factory as a seamstress, as a medical
secretary for a short period of time (approximately 6 months), at a large photo
printing company as a photo enlarger, and as a labourer in the manufacture of
large fibreglass parts for motor coach homes and buses. She also worked at a
bakery her brother had started and in which she had invested some funds
(approximately $1,500). The bakery was not successful.

[14]        
In 1995, the plaintiff and her husband were able to afford their first
home providing a room for each of their children.

[15]        
Although a significant financial commitment, they sent their children to
a private Christian school. The family regularly attended the local Catholic Church.

[16]        
As the plaintiff explained, consistent with Philippines culture, she did
the cooking, laundry, shopping and cleaning. Her husband did all the outside
work.

[17]        
By 1999, the plaintiff and her family were well-settled in Winnipeg. By
this time, the plaintiff’s children were 16, 13 and 8 years of age. The
plaintiff’s husband was working as a helicopter technician. In early 1999, the
plaintiff’s husband was encouraged by his now current employer to move to the
Lower Mainland.

[18]        
The plaintiff’s husband moved to the Lower Mainland in early 1999. The
plaintiff with their children followed at the end of the school year.

[19]        
In order to help her children adjust to the move, the plaintiff did not
seek employment until April 2000. The two oldest children attended public
schools and the youngest child a private Catholic school.

[20]        
In the spring of 2000, the plaintiff started to work at Westbay SonShip
Yacht Builders Ltd. (“Westbay”). Her wage was $13.50 per hour with benefits.
Westbay made luxury fibreglass yachts. The plaintiff helped with the fibreglass
molds for the smaller parts of the yachts (e.g. portals and windows).

[21]        
The plaintiff enjoyed the work and working with her co-workers.

[22]        
In May 2006, Westbay encountered financial difficulties and went into
receivership. The plaintiff’s employment with Westbay ended.

[23]        
Despite the loss of her job at Westbay, the plaintiff was confident she
would find full-time employment.   Although they had financial concerns, she
and her husband proceeded with their plan to buy a home for their family (they
had been renting since their move from Winnipeg).

[24]        
After the loss of her Westbay job, the plaintiff decided to become a
caregiver for the elderly. In September 2006, the plaintiff started a six
month course for caregivers. She found the course challenging but worked hard
and completed the course successfully.

[25]        
By May 2007, the plaintiff had full-time employment at Hilton
Villa, a care facility for the elderly. For several months, she also held a
second job at another elder care facility. She quit the second job to help care
for her father.

[26]        
In May 2008, the plaintiff left her job at Hilton Villa to work at
Rosemary Heights Seniors Village, which was where she was employed on the day
of the first motor vehicle accident (August 9, 2009).

[27]        
Rosemary Heights is a large elder care facility. The plaintiff worked on
the second floor, which provided extended care to residents, many with physical
difficulties.

[28]        
The plaintiff’s work included lifting and transferring residents to help
with their daily personal hygiene and needs. The rooms were equipped with lifts
and other apparatus to help in the moving and positioning of a patient. That
said, the plaintiff’s work included a significant physical component in helping
to walk, balance, move, and seat patient-residents who at times could be irascible.

[29]        
From the plaintiff’s testimony, it was clear that she enjoyed working
with the elderly. She made them happy and they made her happy. Mr. J.
Rodriguez, her supervisor at the time of the first motor vehicle accident, described
the plaintiff as an efficient worker who followed instructions carefully (the
facility had a set plan for each resident).

[30]        
Prior to August 9, 2009, the date of the first motor vehicle accident,
the plaintiff had a good social life, enjoying family and friends.

[31]        
Prior to the first motor vehicle accident, the plaintiff had not suffered
from any psychiatric problems or extraordinary physical problems. There was no
history of musculoskeletal problems or injuries. She testified that she had neither
difficulties sleeping nor problems with balance or dizziness. She was not
taking pain or mood medications.

[32]        
The plaintiff had diabetes (type II). She also had a prior history of
some ringing in her ears.

[33]        
Prior to the first motor vehicle accident the plaintiff was earning
approximately $18 per hour (with benefits). She was working the evening shift
(3 p.m. to 11 p.m.), 5 days a week followed by 2 days off.

IV.           
DEFENDANTS’ POSITION

[34]        
In their closing written submissions, the defendants summarize their
position:

The Defendants accept that Ms. Badillo sustained soft
tissue injuries as result of the minor motor vehicle, accident in August 2009.
She enjoyed a functional recovery and was back to work by November 2009.
She continued to work full time and perform her normal job duties for the next
16 months without incident.

The Defendants do not accept that she suddenly went from
fully functional to totally disabled on April 1, 2011 solely as a result
of injuries allegedly sustained in the low impact rear-end accident 16 months
previous.

Ms. Badillo’s fall down the stairs at home on October 4,
2011 and work injury on December 8, 2011 were significant traumas to her
upper body and left shoulder in particular. These two incidents were not
related to the first motor vehicle accident.

The Defendants cannot be held
wholly responsible for damages which partially flow from subsequent traumatic
events. The Court must take into account the relative contribution of the
subsequent injuries in assessing damages in this case.

[35]        
The defendants also say that before the first motor vehicle accident the
plaintiff had an asymptomatic degenerative neck condition that became
symptomatic as a result of the first motor vehicle accident. The defendants say
that the “crumbling skull” rule applies.

[36]        
The defendants also say that the plaintiff has failed to mitigate her
damages.

V.             
plaintiff’s burden

[37]        
The plaintiff’s burden is to prove her injuries on a balance of
probabilities: F.H. v. McDougall, 2008 SCC 53.

[38]        
Where the alleged injuries are continuing soft tissue injuries, the
Court must be particularly careful in making its findings. In this regard,
Chief Justice McEachern (as he then was) in Butler v. Blaylock Estate,
[1981] B.C.J. No. 31 (S.C.) stated:

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

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

[39]        
A plaintiff does not need to show objective evidence of continuing
injury in order to recover damages: Butler v. Blaylock Estate, [1983] B.C.J.
No. 1490 (C.A.), at paras. 12-13.

VI.           
plaintiff’s credibility and reliability

[40]        
The plaintiff gave her testimony simply and sincerely. Her testimony was
supported by the evidence of other witnesses and was consistent with events. The
plaintiff is not a malingerer and did not exaggerate her injuries. The Court
found the plaintiff to be a credible witness.

[41]        
The Court recognizes that the plaintiff may not be reliable with respect
to some of her physical injuries in that she may have greater physical
capability than she believes she has. She is a truthful witness. However, as
described below, in considering the expert medical evidence, to the extent the
plaintiff has a chronic pain syndrome (as distinct from persistent pain) she
believes she has pain even though there is not a physical basis for the pain.
In this sense and to this extent, she is not a reliable witness.

VII.          
August 9, 2009 motor vehicle accident

[42]        
The accident occurred in the early afternoon of Sunday, August 9,
2009. The Plaintiff was driving to work in a 2003 Honda Civic.

[43]        
At the time of the accident, she was the third car in a left turn lane
and had been waiting for the light to turn green.

[44]        
The light turned green and the two vehicles before her started to move
forward when, without warning, the plaintiff’s car was hit from behind by a
4-door compact car driven by the defendant, Mr. Prithvi Bedi.

[45]        
Mr. Bedi explained that the cause of the accident was that he suddenly
felt a spider on his leg that “creeped him out”. He “kind of got scared” and took
his foot off the brake. As he described, his foot “was in the air”. His car
collided with the plaintiff’s car. He was not looking at the plaintiff’s car
immediately before the collision.

[46]        
Mr. Bedi testified that his car prior to the accident was stopped 1
to 3 car lengths behind the plaintiff’s car. The collision was at low speed but
he did not have a good estimate of the exact speed.

[47]        
Mr. Bedi testified that after the collision, he exited his car, examined
his car for damage and then went over to the plaintiff’s car. The plaintiff was
in her car’s driver’s seat. The plaintiff was holding her neck. They exchanged
the requisite information. The assistance of the police or other first responders
was not sought.

[48]        
Mr. Bedi called the plaintiff’s telephone number later in the day
and reached the plaintiff’s husband.

[49]        
The plaintiff testified that she saw “stars” immediately after the
accident and that she was shaken.

[50]        
After exchanging the requisite information with Mr. Bedi, the
plaintiff completed the left turn and pulled to the side of the road. She then
called her husband. Her husband then met her at the scene. He tried to dissuade
her from going to work. The plaintiff felt committed to go to work. She
testified that she did not wish to disappoint the residents for whom she cared.
After first calling her employer to explain that she would be late, she went to
work.

[51]        
Mr. Joe Rodriguez was the plaintiff’s supervisor on the evening of
the August 9, 2009 accident. He testified that the plaintiff had phoned
him saying that she would be late for work. He testified that the plaintiff was
in pain as she tried to work. He testified that the plaintiff is not the type
of person to miss work unless she must. He told the plaintiff to leave work and
see a doctor.

[52]        
The plaintiff went home and then to a walk-in clinic, but it was closed.
She went home, took Tylenol, and applied a compress. She called her doctor the
following day.

[53]        
There was no damage to the defendant’s car. The plaintiff’s car had
approximately $850 in damage, which included the replacement of the car’s rear
bumper.

[54]        
Mr. Bedi testified that his car only nudged the plaintiff’s car.
The Court rejects this characterization of the force of the collision. The
surrounding circumstances and the plaintiff’s testimony make it clear that the
collision, while at low speed, was more than a nudge. The collision was flush
with the potential to transfer energy like a billiards “full-ball hit”.

[55]        
The collision was of sufficient energy to cause the plaintiff’s
injuries, including making her asymptomatic neck condition symptomatic. The
Court finds that the collision caused the plaintiff’s injuries.

[56]        
The plaintiff’s injuries consisted of neck pain, shoulder pain (a shawl
like distribution with greater pain on the left side), headaches, dizziness, some
“ringing in the ears”, and depression (which as described below subsequently developed).
She had difficulty holding items in her left hand. The pain was constant and was
exacerbated by activities (such as lifting). Her headaches were frequent. As
described below, the injuries persisted beyond the usual recovery period.

VIII.        
Period from the first accident until the fall at home

[57]        
After the August 9, 2009 motor vehicle accident, the plaintiff
struggled with the injuries she had suffered. She took a leave of absence from
work in order to recover and started a graduated return to work on November 17,
2009 with a full return to work on December 16, 2009. The plaintiff’s
family doctor, Dr. R. Lim, had recommended the leave of absence.

[58]        
The plaintiff’s family had previously planned a holiday for later in
August 2009 involving a car trip to California to visit relatives and to go to
Disneyland. The plaintiff did not wish to disappoint her family by cancelling
the trip. It was the family’s first car trip.

[59]        
During the trip, the plaintiff experienced considerable discomfort from
the travel. The trip was cut short as a result of the pain and discomfort the
plaintiff experienced.

[60]        
After returning to work, the plaintiff struggled with the required
tasks. She followed Dr. Lim’s advice, including physiotherapy sessions and
taking the medications Dr. Lim prescribed (e.g. Flexeril). The plaintiff
saw Dr. Lim regularly, approximately every month.

[61]        
The testimony of the plaintiff’s co-workers, her husband, and daughter
were consistent with the plaintiff’s description of her ongoing injuries. In
particular, the plaintiff continued to experience pain in her left shoulder
area. Her headaches were frequent and she had difficulty sleeping. The pain increased
in severity as the months passed and she continued to work.

[62]        
After discussing her condition with Dr. Lim, the plaintiff took a
further leave of absence from work starting April 1, 2011.

[63]        
By the summer of 2011, the plaintiff had been diagnosed by Dr. M.
Van Den Berg, a psychiatrist, as suffering from major depression.

[64]        
The plaintiff was prescribed medications for her depression. In
addition, her other medications were increased in dosage. She also had a
cortisone injection to her left shoulder.

[65]        
The plaintiff continued to follow the instructions of her various
doctors.

[66]        
By October 4, 2011, the plaintiff had not returned to work.

IX.           
October 4, 2011 Fall

[67]        
The fall occurred around 8:00 a.m. The plaintiff had risen around 5:30
a.m. when her husband had left for work. She had taken her medications the
previous evening and that morning. She had eaten breakfast. She had felt a
slight quick dizziness earlier that morning, which she ignored.

[68]        
The plaintiff was in her home reading the newspaper when her brother
phoned to borrow some booster cables. To get the cables, the plaintiff had to
go outside onto the patio and down a set of stairs. She was going down the
stairs from the patio when she fell. She fell down the last two stairs.

[69]        
The plaintiff fell forward onto her left side which included hitting the
left side of her face. She stood up and returned to the house. The plaintiff’s daughter
encouraged her to go to the hospital, which they then did.

[70]        
At the hospital, an x-ray was taken of the eye area and the plaintiff
was discharged. That evening she received a telephone call from the hospital
and she was asked to return the next morning, which she did. At that time a CT
scan was performed which showed a fracture to the left eye socket. Surgery was
performed later that day. The eye injury resolved within approximately four
weeks.

[71]        
The fall also aggravated the plaintiff’s left shoulder and neck pain.
The plaintiff testified that the aggravation had not subsided before the
November 19, 2011 accident.

X.             
November 19, 2011 Motor Vehicle Accident

[72]        
On November 19, 2011, the plaintiff was in the front passenger seat
of her Honda Civic, which was being driven by her daughter. They had just left
a shopping mall and the car was stopped when a large commercial truck backed
into their car. The plaintiff described the impact like a “punch”.

[73]        
Pictures of the Honda Civic show significant damage to the front of the
Honda Civic but not extending into the interior of the car.

[74]        
As noted, liability has also been admitted for this collision.

[75]        
The plaintiff testified that, after this accident, the pain in her left
shoulder increased, her headaches increased, the ringing in her ears was made
much worse, her sleep was “about the same”, and her mood was a “little bit
worse”.

[76]        
The plaintiff is a determined person who, prior to the November 19, 2011
accident, had wished to return to work at the Rosemary Heights facility. The
plaintiff testified that she had wanted to “still go on onto my life”. She said
she is the type of person who “never gives up” and if she “can handle it [she]
will do it”.

[77]        
Prior to the November 19, 2011 accident, the plaintiff had
discussed the return to work with Dr. Lim and Dr. Jaworski, a
rehabilitation specialist. The plaintiff decided to proceed with the plan for a
gradual return to work despite the November 19, 2011 accident.

XI.           
November 28, 2011 Graduated Return to Work

[78]        
On November 28, 2011, the plaintiff started a graduated return to work. At
the time she started the graduated return to work, she was still suffering from
her various injuries and was still taking her prescribed medications and
following the other recommendations of her doctors, such as physiotherapy.

[79]        
The duties on the graduated return to work were light. She did not work
independently. She helped the primary care aide with the feeding and walking of
residents, and generally assisting the primary care aide by doing such tasks as
getting a juice drink for a patient.

[80]        
The graduated return to work was for four hours per day. The plaintiff
testified that even in performing the lighter duties she felt neck and shoulder
pain, including left shoulder pain.

XII.          
December 8, 2011 Fall at Work

[81]        
The fall occurred approximately three hours after the plaintiff started
her four-hour shift. She was still on the graduated return to work program.

[82]        
At the time of the fall, the plaintiff was helping the primary care aide
walk a resident along a hall. The plaintiff was on the right side of the
patient. The care aide was on the left side of the resident. The resident also
had the assistance of a walker. As they approached a corner leading to an
activity area, the plaintiff felt lightheaded. She started to feel as if she
was going to fall and told this to the primary care aide. The plaintiff fell
and hit her head on the foot of the wheelchair of another resident.

[83]        
The plaintiff’s co-worker helped her and called the head nurse. The
plaintiff’s blood pressure was checked. The Director of Care was also called.
The plaintiff’s blood sugar was also checked and it was normal.

[84]        
The Director of Care told the plaintiff that she was concerned for the
safety of the facility’s residents and the safety of the plaintiff. The
plaintiff was sent home. The plaintiff’s daughter picked her up from the
facility.

[85]        
The night prior to the fall, the plaintiff had taken her prescribed
medications (Flexeril, Naproxyn, Gabapentin, Cymbalta, Trazedone). In the
morning the plaintiff had taken her diabetes medication, had eaten breakfast,
and had tested her blood sugars (which were normal and consistent with prior
days).

[86]        
The fall generally aggravated her existing injuries for two to three
weeks.

XIII.        
May 8, 2012 Further Return to Work

[87]        
On May 8, 2012 a further graduated return to work was attempted.
The graduated return to work was to be for four-hour shifts, increasing to
six-hour shifts after two weeks.

[88]        
The graduated return to work was not successful. The plaintiff was still
suffering pain, especially in her left shoulder, and headaches. She did not
achieve the progress necessary in order to care for residents on her own. The
plaintiff testified that her employer told her that reduced hours could not be
accommodated and that she had to be able to work on her own. At this time, the
plaintiff did not feel she could work on her own and that there was a safety
risk for the residents.

[89]        
This return to work attempt lasted until June 6, 2012.

XIV.       
Final Attempt to Return to Work

[90]        
On November 25, 2013, a further graduated return to work was
attempted. The attempt was done in conjunction with Back in Motion Rehab
(Coquitlam) Inc.

[91]        
Back in Motion designed a customized rehabilitation program. The general
purpose of a customized rehabilitation program is to improve functionality and
strength for the particular job before the worker returns to work.

[92]        
The plaintiff followed the rehabilitation program and then attempted the
return to work. The program was an eight-week program, with increasing activity
as the weeks progressed. The plaintiff completed 35 sessions. She missed only
one session. Mr. M. Peters of Back in Motion described the plaintiff as
very diligent even though she struggled.

[93]        
The graduated return to work was on a supernumerary basis. That is, the
employee supplements the employer’s other employees. This removes pressure on
the particular employee and does not impact the employer.

[94]        
The graduated return to work failed. The plaintiff’s pain increased. Mr. Peters
testified that all involved were concerned about the safety of the patients. On
December 16, 2013, the plaintiff’s attempt to work was stopped after the
third week. Mr. Peters reported to the Insurance Corporation of British
Columbia and recommended that the plaintiff may be employable in a more
sedentary role, possibly with retraining.

XV.         
medical evidence

A.                       
General

[95]        
The plaintiff has seen a variety of medical experts in order to diagnose
and address her injuries. At trial, the Court had the assistance of expert
medical reports and expert evidence from Dr. R. Lim, family physician, Dr. Shao-Hua
Lu, psychiatrist, Dr. R. O’Connor, physiatrist, Dr. J. Fuller, orthopaedic
specialist, and Dr. W. Regan, orthopaedic surgeon.

[96]        
Under a document agreement, various medical or clinical records were
admitted as evidence with the following understandings:

(a)       the
doctor or health care professional in question saw the plaintiff on the day in
question;

(b)       the
plaintiff was examined on that day;

(c)       the
examination findings were as recorded;

(d)       the
history was taken as recorded;

(e)       treatments
were prescribed as recorded;

(f)        
medication was prescribed as recorded; and

(g)       any
medical procedures or tests occurred as stated in the records.

[97]        
Dr. Fuller has extensive experience respecting orthopaedic medicine
and disability assessments with a focus on pain management, especially soft
tissue injuries. In his testimony, he explained that the medical profession’s understanding
of the nervous system and the musculoskeletal system is limited. He testified:

Q         In cross-examination, you were
asked questions with respect to a consult with Dr. Telfer and taken to an
entry with respect to a normal neurological exam. And your words were that that
clinical exam is crude.

A          Correct.

Q         What does that mean?

A          Oh, I don’t quite know where
— it ends at, explanation, because it’s very exp[a]nsive in fact. Humanity’s
understanding of the nervous system is still quite limited. Our understanding
of musculoskeletal system, in my opinion is even more limited. As an example,
when I was a medical student, the stethoscope was still a relatively
sophisticated instrument for assessing the heart. Cardiology seems to have
progressed light years and [a] stethoscope would be ridiculed.

 On
the other hand, unfortunately, I would say that our understanding and
management of orthopaedic problems hasn’t progressed that far. And so our
clinical assessments are also still quite limited.

[98]        
Dr. Fuller testified that the medical profession’s understanding of
pain is also poor:

Q         You used — you used the term
“vicious cycle” when you were talking about pain and psychiatric symptoms. What
did you mean by that?

A          I
mean that pain — again, all this is poorly understood. Pain, persistent pain
can lead to depression and post — and post traumatic stress can be present,
and also anxiety. These conditions can then lead to a further sense of
helplessness. And there appears to be some correlation between that condition
and the persistence or exacerbation of pain.

B.                       
Injuries from the August 9, 2009 Accident

[99]        
As discussed above, the plaintiff’s injuries
from the August 9, 2009 motor vehicle accident consisted of neck pain, shoulder
pain (primarily the left shoulder), headaches, dizziness, increased ringing in
the ears, and depression (which subsequently developed).

[100]     Prior to the August 9, 2009 accident, the plaintiff was a full-time
employee, and a spouse and a mother. On the spectrum of attitudes from indolent
to indomitable, she was much closer to indomitable.

[101]    
Prior to the August 9, 2009 accident, the
plaintiff had a previously undiagnosed pre-existing asymptomatic congenital
degenerative neck condition. In his October 17, 2012 report, Dr. Regan (orthopaedic
surgeon) summarized the pre-existing condition:

She has an
underlying problem of cervical block vertebrae with congenital fusion of C2 – 3
and a congenitally narrowed spinal canal with osteophytes encroaching on the
spinal canal at the C3 – 4 level. The accident is not responsible for this
condition, but the congenital fusion and canal stenosis may be, in part,
responsible for her chronic pain disorder that has occurred with the trauma
that she has sustained [at 6].

[102]     In preparing his October 17, 2012 report, Dr. Regan assumed
that at the time of the August 9, 2009 accident, the plaintiff “sustained an
axial load to both her upper extremities plus an acceleration/deceleration back
and forth motion of her upper torso” (at 3).

[103]    
In a similar manner to that of Dr. Regan, Dr. Fuller,
in his November 1, 2012 report describes the possible accident forces on the
plaintiff’s body:

48.       As
already discussed under ‘Causation”, this patient’s axial skeleton/neck would
have been subjected to an excessive load in the accident of August 9, 2009.
Loading was initially in extension/backward bending against the seat back and
headrest followed by flexion/forward bending against the seatbelt. These forces
would be sufficient to cause a degree of musculoligamentous injury to the
structures supporting the cervical spine/neck. As indicated, the cervical spine
is not protected from these forces by the seatbelt. Musculoligamentous trauma
will also be associated with a degree of reflect muscle splinting which will in
and of itself become painful.

[104]     The Court
notes that Dr. Fuller assumed that the plaintiff “braked hard to avoid
hitting the car in front” (at para.10). The Court heard no evidence on this
aspect other than that the plaintiff’s car was just starting to move when it
was hit by Mr. Bedi’s car. As noted, the Court has found that the
collision was of sufficient energy to cause, and did cause, the plaintiff’s
injuries, including the resulting musculoligamentous trauma and making her
asymptomatic neck condition symptomatic.

[105]    
With respect to the pre-existing neck condition, Dr. Regan, in his
October 17, 2012 report states:

It is important
to recognize that a congenital spinal cord compression and block vertebrae
render her very susceptible to chronic pain even if the accident did not occur.
This is likely in the order of 30%. This is due to the fact that with excessive
motion of the disc below the block vertebrae, (in her case L4), has an
increased risk of degeneration without injury [at 8].

[106]     In
cross-examination, Dr. Regan agreed that the plaintiff could have lived
the rest of her life without chronic pain developing as a result of the
pre-existing congenital neck condition.

[107]     In his
July 21, 2014 report, Dr. O’Connor states there was no evidence to suggest
that the plaintiff’s neck condition had been “rapidly deteriorating” before the
motor vehicle accident or that “she would have ended up in this condition
regardless” (at para 45).

[108]     At the
time of the first accident, the plaintiff was almost 50 years old and was
asymptomatic.

[109]     The Court
does not find that there was a “measurable risk” that the plaintiff’s
pre-existing neck condition would have become symptomatic: Athey v. Leonati,
[1996] 3 S.C.R. 458 at para. 35. There was no evidence as to the rate of
degeneration. The plaintiff had suffered no symptoms prior to the August 9,
2009 collision which would help to show that the onset of symptoms the
plaintiff presently experiences were likely in the future. Matters were still
in the realm of speculation, much like predicting whether there will be a
significant earthquake within a particular fault zone within the next, say, 50
years. There may be considerable science and many known facts, but prediction
remains speculation. While there may be risk, it is not a “measurable risk”.

[110]     Before the October 4, 2011 fall, the plaintiff’s injuries from the
August 9, 2009 accident continued to trouble her. It had been over two years
since the August 9, 2009 accident. The plaintiff’s “complaints of pain” had persisted
for a long period “extending beyond the normal or usual recovery”: Butler,
supra. Although the plaintiff was, prior to the October 4, 2011 fall,
planning to return to work, it is clear that her injuries were not on a path of
resolution, or even improvement.

[111]     By the summer of 2011, the plaintiff was seeing Dr. Van Den
Berg, a psychiatrist, for her pain and her “major depression with moderate
severity”: see Dr. Lu’s October 25, 2012 medical legal report (As noted,
Dr. Lu is a psychiatrist who provided expert evidence at trial).
Dr. Van Den Berg had prescribed medications for the plaintiff’s depression,
which the plaintiff took.

[112]     In the summer of 2011, the dosages of the plaintiff’s medications
for her physical injuries were being increased. She was also given injections
to her left shoulder in order to block her pain (the injections were not
effective).

[113]    
With respect to the plaintiff’s injuries resulting from the August 9,
2009 collision relative to the November 19, 2011 collision and the two falls, Dr. Regan
in his October 17, 2012 report opines:

The incident of
August 9, 2009 initiated her complaints, however, she has had additional
injury pattern following a fall down stairs on October 4, 2011 and another
accident of November 19, 2011, followed by a fall directly onto her left
shoulder on December 8, 2011. Overall, her accident is responsible for
initiating complaints, but her overall current complaints are likely only 50%
related to the initial accident in question [at 8].

[114]     In his
November 1, 2012 report, Dr. Fuller states that with reference to the
cervical spine, “the natural history of this type of ligamentous trauma is one
of gradual improvement over a period of approximately two years” (at 10). As
noted, the first fall was more than two years after the August 9, 2009
collision, with the plaintiff’s condition not improving and arguably worsening.
The plaintiff’s injuries were within the exception to the general experience
recognized by Chief Justice McEachern in Butler.

[115]     As Dr. Fuller
observes, the medical profession’s understanding of the nervous system, the
musculoskeletal system, and pain, is limited. In the case at bar, before the
accident, the plaintiff was fully engaged with work, family, and social
activities. Two years after the accident, the plaintiff was struggling
psychologically and physically without ready signs of potential improvement.

[116]     Looking at
matters in a “robust common sense fashion”, the Court finds that the
plaintiff’s current injuries resulted from the August 9, 2009 collision with
the exception of the plaintiff’s ringing in the ears, which was made worse by
the November 19, 2011 accident: Clements v. Clements, 2012 SCC 32, at para. 9.

[117]     Other than
the ringing in her ears made worse by November 19, 2011 accident, her baseline
injuries were caused by the August 9, 2009 collision. While the two falls and
the November 19, 2011 accident may have exacerbated the plaintiff’s injuries, the
effects were temporary.

[118]    
With respect to the October 4, 2011 fall, the Court finds that the fall
would not have occurred but for the August 9, 2009 accident. As a result of the
August 9, 2009 accident, as of October 4, 2011, the plaintiff was not her
normal self physically and psychologically. She was physically sore; she was
depressed, and had, by then, a history of sleeplessness. She was taking a
variety of prescribed medications with dosages of some of these increased in
the preceding few months. In cross-examination, Dr. O’Connor testified:

Q         Well, in fairness to you, Doctor, that’s —
that’s sheer speculation on your part. You don’t really know why she fell in this case, is that correct?

A          I — I don’t think any of us do.  What
I do know is patients that I put on one of those four medications
come back to me and at least one-third of the time say they’re feeling wobbly,
woozy, dizzy and they don’t want to keep taking medication, and she was on four
of them. And I do outline in my opinion I do think that was a — a
part of that situation or — or would have contributed to her fall, but I can’t
— I can’t — there is no way for me to be able to prove that.

Q         Or maybe she just missed the last step, you
don’t know.

A          That’s true, if —

Q         Okay.

A          If I was taking those four medications
I would probably miss the last step. That is — those medications are —
each and every one of them are sedating. I — I go to the point to
mention that in my report, that I think that is contributing to things.

And further:

Q         And earlier in your — your —
your evidence you talked about the various medica — medications she was
taking. Your understanding is she was taking all those very same medications
when you saw her for your first examination here on October 12th, 2012?

A          Yes, Cymbalta, Gabapentin, Flexeril.
She didn’t actually — right, yes, so the main — I think the main
difference was — is around the time where she was — she had that fall she was
having all of those medications escalating or titrated up, so I — you
know, I — I think it would make sense to at least pay attention to
that, knowing what I see with patients that I start just one of those
medications, patients come in saying they feel off or wobbly, that sort of
thing.

And when a — patients have a fall it was
always — almost always — unless it is a real lightheaded sensation, where
they go to get up and they feel woozy and they say I felt dizzy and then
they fell down, the majority would say they tripped. That is basically how they
describe things.

So if you put somebody on a bunch of a
sedating medications and they trip, it may be that those medications
contributed to that, although the end result was they still tripped. This lady
has multiple reasons why she could have tripped.

I’m not saying that those other factors
aren’t at play.

I am saying that during that time where
they were titrating up that medication, in the summer leading up to the fall and whatever it was, October, November, that
fall in 2011, they were ramping up that medication because things were not going
well, and around that time she had her fall, and that’s all I meant by it.

I can’t say to you for sure, look, this is
a guaranteed hundred percent that that caused the fall,
although if I put myself on all four of those medications I would
have trouble functioning. So would most of the people in the room, if you
started all of them at a similar time. So they are all sedating medications and
that’s —

Q         She — she —

A          — that’s why I mentioned
[indiscernible/voices overlapping].

Q         Okay. I — I don’t
want to get bogged down in that, but she — in fairness, Doctor, she had been on all of those
medications for a number of months, if not years, before the fall, correct?

A          She
had been on all of them, but she was having — I — I mentioned in
the report there she was having them titrated up. Both
— the Gabapentin and the Cymbalta were both being titrated up.

[119]     Reviewing
the context of the plaintiff’s pre-August 9, 2009 condition, the nature of her
injuries prior to the October 4, 2011 fall and Dr. O’Connor’s testimony,
the Court, on a balance of probabilities, finds that but for the August 9, 2009
accident the plaintiff would not have fallen on the stairs descending from her
patio. In making this finding, the Court has considered the fact that the
plaintiff’s medications had recently been “titrated up” or increased. Although
the plaintiff has type II diabetes, there is no evidence that she suffered any
dizziness prior to the increase in her accident-related medication.

[120]     With
respect to the December 8, 2011 fall at work, the plaintiff experienced light
headiness just before the fall. Her fall was not accompanied by bumping into
another person, slipping on a recently mopped floor or a hurried movement. She
was at a slow gait, assisting with the caregiver an elderly patient walk with a
walker.

[121]    
In his expert report of October 11, 2012, Dr. O’Connor discusses the December
8, 2011 fall and opines that “it is likely that [the plaintiff] struck her
head” during the fall down the stairs on October 4, 2011”. He further states
that “the December fall is more likely related to secondary head trauma that
occurred and likely multiple medications that she was on related to the
October, 2011 fall]” (at 7). But for the August 9, 2009 accident, the
medication she was on for her accident-related injuries and the related fall of
October 11, 2012, the Court finds on a balance of probabilities that the
plaintiff would not have fallen on December 4, 2011. Such a fall would not be
consistent with her pre-August 9, 2009 health.

[122]     In sum,
all of the plaintiff’s injuries were caused by the August 9, 2009 accident,
with two exceptions: (a) the temporary exacerbation of her baseline injuries as
a result of the November 19, 2011 accident; and (b) the worsening of the
ringing in her ears as a result of the November 19, 2011 accident.

C.                       
Prognosis

[123]     The
plaintiff’s unresolved injuries are neck pain, shoulder pain (left shoulder
primarily), headaches, dizziness, ringing in the ears, and depression.

[124]    
Although significant improvement is a possibility, the high probability
is that such will not occur. In his September 5, 2014 report, Dr. Fuller
states:

[45] In my prior report on page
10, paragraph 53 I indicated that the natural history of musculoligamentous
trauma to the structures supporting the cervical spine and involving the left
shoulder girdle is one of gradual improvement over a period of approximately
two years. It is now five years since the motor vehicle accident of August 9,
2009; the more significant accident. On this basis it would be my opinion that
this patient has reached maximal medical recovery and the prognosis for any
further improvement is indeed poor.

[125]    
In her October 25, 2012 report, Dr. Lu opines:

…However, her pain and major
depression are chronic conditions. She continues to have active symptoms. Even
though her depression has improved, she faces long-term relapse risk. In
general after one episode of major depression, there is a 30% chance of relapse
within 5 years. Chronic pain and secondary losses would increase the general
risk. Ms. Badillo is likely to have long-term psychiatric symptom with
fluctuation and periodic deterioration in response to any changes in her pain
and physical limitations. Lastly, any future accidents to her or her family
members would have a high likelihood of causing PTSD [at 9].

[126]    
In cross-examination Dr. O’Connor explained psychological overlay and
pain, and their often inseparable and intractable nature:

Q         So explain to me — explain
to the court how significant psychological overlay is affecting her pain
experience.

A          So patients or what I see in
— in almost every patient in that scenario is a certain amount of anxiety or
depression. It tends to — and in particular, when pain becomes chronic
patients tend to tolerate that pain less.

They — they
rate their pains higher than you might say, so when they’ll say, oh, you know,
my pain is a ten out of ten and then you kind of go, okay, well, it seems kind
of high. I know they are having pain, but that doesn’t seem like the worst pain
in their life, it seems a little bit high.

So they — they’ll start to — it starts to amplify their pain
experience or make their pain — to somebody who steps back and is watching or listening
to that story, seem like it sounds even more so than — than patients that
haven’t had that pain for a very chronic period of time, or don’t have that
anxiety, or don’t have that depression. That’s not just in her, that’s — that
is the beast of chronic pain, so that’s — that’s what you see.

And further,

Q         So what do we do to address
psychological overlay, so that we can improve her pain experience?

A          You — that’s a really,
really good question. So thank —

Q         It’s about time I asked one,
isn’t it?

A          — thank goodness for that
— yeah, so I — I mean that’s a very — it’s difficult because the — there’s
three ways to treat it.

We already
talked about it. So trying to address the anxiety, trying to address the
depression and then trying to address conditioning, those are the three things
that we have some control over, or you can try and address.

The — part of
it is the reconditioning part. She has had four kind of kicks at the can at
that and we haven’t gotten any further. Medication to help with depression or
anxiety, sometimes some talk therapy will make a difference; sometimes the
exercise does make a difference, sometimes it doesn’t. It usually has to be
fairly consistent and then be tolerating that. The report does make a
difference.

Q         Doctor, just in terms if —
if we’re able to reduce her psychological overlay and improve her pain
experience that can — that can lead to increased function, correct?

A          Yeah, especially if that’s
—

Q         That’s what —

 — kind of early on in the
— in the whole process.

So I’m not a
psychiatrist, but I see these sort of things daily, and my experience has been
that when something like that becomes pretty well entrenched, two, or three,
four years in — four years in, it — for the prac — for all practical purposes
is pretty much the way it is, and so it doesn’t usually dramatically change
with suddenly giving somebody a — an antidepressant.

Those pain
behaviours, that depression and that anxiety becomes fairly hard-wired. That is
what I outlined in my opinion about — my opinion regarding prognosis and that
I think she is reached maximum improvement. I don’t think there is going to be
a dramatic sudden change, if we just say, oh, look, well, if we miraculously
make her psychological overlay go away, that overlay or that psychological
problem — those problems are part and parcel of where she is at now and are
sort of inter — intimately intertwined.

You can’t just
pull them apart now and you just treat that one thing. If that was the case she’d
have been– she’d have been better by now.

Q Where
— you’re not suggesting giving up on — on future therapy, are you?

A          No, I — I — one of my
mottos I tell my kids is never, never, never, ever, ever give up, so I — I don’t
— I believe that, but at some point from when I get asked as an — as an
expert to say do you think this person has plateaued, I do think she has
plateaued at this point. I think it is more management at this point, rather
than a fix or a cure.

Q         In any event, it still
continues to be your opinion that she is capable of full-time employment in a
light or sedentary position, correct?

A          Yeah.
She can find a position that will allow her to do something like that, yes.

[127]     Dr. Fuller’s
view was that while suffering from chronic pain syndrome, much of the plaintiff’s
pain could be attributed to persistent pain (i.e. pain with a recognized
physical source). In either case, with the number of years elapsed since the
plaintiff’s 2009 accident, successful treatment is difficult and unlikely.

XVI.       
mitigation

[128]    
The defendants argue that the plaintiff did not mitigate her damages by
not seeking casual shifts, seeking work at other facilities, or lighter duties
at Rosemary Heights. The test for mitigation is set forth by our Court of
Appeal in Chiu v. Chiu, 2002 BCCA 618:

[57] The onus is on the defendant to prove that the plaintiff could have
avoided all or a portion of his loss. In a personal injury case in which the
plaintiff has not pursued a course of medical treatment recommended to him by
doctors, the defendant must prove two things: (1) that the plaintiff acted
unreasonably in eschewing the recommended treatment, and (2) the extent, if
any, to which the plaintiff’s damages would have been reduced had he acted
reasonably. These principles are found in Janiak v. Ippolito,
[1985] 1 S.C.R. 146.

[129]     The Court
finds that the plaintiff did by try to mitigate her damages. She attempted to
return to work where she was working. None of her doctors or other health
professionals recommended that such a return should not be attempted.

[130]     If the
plaintiff had sought casual shifts, as the defendants suggested she should
have, the plaintiff would still have had to work eight-hour shifts with full
duties. She was not capable of such.

[131]     The
defendants also argued that the plaintiff could have applied to other
facilities. The Court accepts that with her age and injuries, she was less
marketable. It was reasonable for the plaintiff to attempt to return to work
but, unfortunately, this proved unsuccessful. As noted in Butler, soft tissue
injuries usually resolve within a reasonable period of time. In the case at
bar, they did not.

[132]     The
defendants also argue that the plaintiff should have sought work with lighter
duties at Rosemary Heights. Again, the plaintiff’s attempt to return to work at
her position before the accident was reasonable. Moreover, her return to work
in a supernumerary role shows that she would not have been able to handle the
duties, albeit  not as physically demanding, on a routine basis with the
residents on the other floor (the first floor), who had cognitive difficulties
(e.g. dementia) and could be violent at times.

XVII.     
functional and vocational evaluation

[133]     Mr. Chris
Nguyen is a kinesiologist who was qualified to provide expert evidence with
respect to functional capacity. He assessed the plaintiff on October 1, 2012
and July 28, 2014.

[134]    
At page 15 of his July 18, 2014 report Mr. Nguyen opined that:

…, from an occupational perspective, her demonstrated
abilities did not meet the physical strength required to be
competitively employable on an enduring basis in any future occupation that
requires more than a sedentary strength category and/or anything greater than a
light strength category on an occasional basis.

[Mr. Nguyen’s emphasis]

[135]     Mr. Nguyen’s
opinion accorded with the medical evidence. Dr. O’Connor (July 21, 2014
report, p. 8), Dr. Fuller (September 5, 2014 report, p. 11), Dr. Lim
(September 4, 2014 report, p. 6), and Dr. Regan (November 22, 2012
report, p. 8) were each guarded regarding the plaintiff’s ability to
perform more than sedentary work or work with more than light physical duties.

[136]     The Court
finds Mr. Nguyen’s opinion to be an accurate and pragmatic description of
the plaintiff’s functional capacity.

[137]     Mr. Derek
Nordin was qualified to provide expert evidence with respect to the impact of
injury on the ability to work. He conducted a vocational assessment of the
plaintiff.

[138]     Mr. Nordin’s
testing showed that the plaintiff’s reading, spelling, and mathematical skills
were low, as well as her general aptitude. From Mr. Nordin’s March 25,
2014 report, it is apparent that the plaintiff was experiencing pain at the
time of testing. While the plaintiff’s pain may have adversely affected her
test performance, the Court finds that the plaintiff’s academic abilities and
general aptitude are not sufficient for her to realistically find long-term
employment in a clerical or office-like setting.

[139]    
At page 19 of his report, Mr. Nordin opined:

Consequently, while it is apparent that Ms. Badillo is
not completely functionally disabled, she is, in my opinion, vocationally
disabled to the extent that I do not see her returning to the competitive
workforce.

[Mr. Nordin’s emphasis]

[140]     With
respect, I am not as pessimistic as Mr. Nordin. The plaintiff is a person
who perseveres. The Court finds that she will be able to find sedentary or light
duty work, probably in the Filipino community as a result of her more limited
English skills, which will pay minimum wage.

XVIII.     DAMAGES

A.             
Non-pecuniary damages

[141]    
In Stapley v. Hejslet, 2006 BCCA
34, our Court of Appeal sets forth some of the factors which may be
considered in determining an award of non-pecuniary damages:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[142]     The
jurisprudence with respect to awards of non-pecuniary damages is particularly
fact-specific.

[143]     Based on
the following authorities, the plaintiff submitted that a non-pecuniary damage
award should fall within $90,000 to $130,000:

·      
Rajan v Hudon, 2014 BCSC 1678

·      
McCarthy v. Davies, 2014 BCSC 1498

·      
Morlan v. Barrett, 2010 BCSC 1767

·      
Marois v. Pelech, 2007 BCSC 1969 aff’d 2009 BCCA 286

·      
Eccleston v. Dresen, 2009 BCSC 332

·      
Prince-Wright v. Copeman, 2005 BCSC 1306

[144]    
The defendants argued that the quantum of any non-pecuniary damage award
should be reduced:

Having regard to the impact of
the two subsequent falls on the plaintiff’s chronic pain condition and the
apparent activation of the asymptomatic degenerative condition, the Defendants
submit non-pecuniary damages are properly in the $60,000 to $80,000 range.

[145]     With
respect to quantum, the defendants referred the Court to the following
authorities:

·         
Perry v. Vargas, 2012 BCSC 1925

·         
Barnes v. Richardson, 2008 BCSC 1349

·         
Chiang v. Medland, 2014 BCSC 737

·         
LaFrance v. Natt, 2009 BCSC 1147

·         
Carreon-Rivera v. Zhang, 2014 BCSC 709

·         
Lorenz v. Gosling, 2011 BCSC 1250

[146]     With the
Court’s findings above, the Court will not reduce what otherwise would be the
award. The two falls were caused by the accidents. The crumbling skull doctrine
also does not apply in the case at bar.

[147]     In
ascertaining the appropriate award, the Court found the Reasons of our Court of
Appeal in Marois to be particularly helpful (although in the case at bar
there were not the credibility concerns as in Marois) and has considered
the plaintiff’s age as a key factor. The Court will award $110,000 for
non-pecuniary damages.

B.             
Past Income Loss

[148]     Mr. Curtis
Peever is an economist who was qualified to provide expert evidence with
respect to the past and future loss of income. He also provided computations on
the present values of the various costs of future care.

[149]     Mr. Peever’s
computation of past income loss was based on the plaintiff’s payroll records,
employment insurance records, Worksafe BC records, and income tax returns. He
assumed that the December 8, 2011 fall at work was not related to the two motor
vehicle accidents (the plaintiff claimed Workers Compensation benefits for the
fall).

[150]    
With respect to the past income loss, the key portion of Mr. Peever’s
August 29, 2014 report reads:

Table 1 provides
estimates of Ms. Badillo’s “without accidents” and “with accidents”
earnings from the date of the first accident (August 9, 2009) to the date of
trial (December 8, 2014).

As instructed, the estimates of “without
accident” earnings are based on 37.5 hours of work per week at the following
hourly rates of pay which were provided by Rosemary Heights Seniors Village.

As instructed, it is assumed that absent the
motor vehicle accidents Ms. Badillo would have fallen at work, like she
actually did on December 8, 2011. It is also assumed that she would not have
worked from December 8, 2011 to February 8, 2012 while recovering from her
fall, and that she would have received WCB benefits but not wages in this
period.

According to her income tax return, Ms. Badillo
received about 8.6 weeks of WCB benefits in 2012 as a result of her fall at
work, totalling about $3,130. Had she been working full-time at the time of the
fall, these benefits would have been higher (estimated at about $4,472). The
"without accidents” and “with accidents” WCB benefits are included in the
earnings estimates for 2012 in Table 1.

The estimates of “with accidents” earnings
for 2009 (from August 9), 2010, 2011, 2012, and 2013 are Ms. Badillo’s actual
earnings, excluding taxable benefits. As instructed, it is assumed that Ms. Badillo
will not work in 2014 (to December 8), so there are no “with accidents”
earnings shown in Table 1 for this period.

The losses in Table 1 are determined by
deducting the “with accidents” earnings from the “without accidents” earnings.
As shown at the bottom of the table, it is estimated that Ms. Badillo’s total
past loss of earnings is $137,794.

The Court’s
valuation of past loss of earnings for a plaintiff must be reduced for
provincial and federal income taxes, as well as for his or her portion of
Employment Insurance (El) premiums if the individual is an employee. Percentage
deductions for taxes and El premiums may be calculated using a “year-by-year”
approach, as discussed in Lines v. W&D Logging Co. Ltd (2009 BCCA 106) and
Laxdal v. Robbins (2010 BCCA 565). Using the method that was
adopted in “Laxdal”, Ms. Badillo’s total “net” past loss of earnings is
estimated at about $117,400 (rounded).

[151]     The Court
will accept Mr. Peever’s calculation of $117,400 as the plaintiff’s past
income loss. The Court agrees that the “year by year” approach for tax and
Employment Insurance premium adjustment was the appropriate approach in the
case at bar. The Court notes that this figure is conservative because the Court
found that the December 8, 2011 fall was caused by the motor vehicle accidents.
Her lost wages would have been greater than the Workers Compensation benefits she
received.

[152]     The
plaintiff claimed $117,400 as past income loss. The computed past income loss
is an estimate. With this in mind and the fact that the plaintiff did not ask
for an upward adjustment, the Court finds $117,400 to be the plaintiff’s past
income loss.

C.             
Loss of Future Earning Capacity

[153]     In Perren
v. Lalari, 2010 BCCA
140, our Court of Appeal sets forth, at para. 32, the rule that
there must be a “real and substantial possibility of a future event leading to
an income loss” before assessing the loss. The loss may be quantified using the
earnings approach or the capital asset approach.

[154]    
In Rosvold v. Dunlop, 2001 BCCA
1, our Court of Appeal states:

[9] Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3
S.C.R. 458. Possibilities and probabilities, chances, opportunities,
and risks must all be considered, so long as they are a real and substantial
possibility and not mere speculation. These possibilities are to be given
weight according to the percentage chance they would have happened or will
happen.

[155]     Using the
earnings approach to assess the loss of earning capacity, the Court has based
its computation on the finding that the plaintiff would have continued to work
full-time as a care aide until age 63.

[156]     The
plaintiff and her husband had significant financial obligations (a large
mortgage secured by their home). While the plaintiff’s husband enjoyed a good
income (approximately $70,000 to $80,000 per year), the plaintiff’s full-time
income would undoubtedly assist in funding their financial obligations.

[157]     The
plaintiff’s husband is two years older than the plaintiff. The Court finds that
the plaintiff would have retired when her husband retired at age 65. The
plaintiff’s husband testified they had discussed before the August 9, 2009
accident the plaintiff’s retirement coinciding with his retirement. The
plaintiff’s husband will turn 65 on March 6, 2023. The Court will assume that the
plaintiff would have worked full-time as a care-aide until December 31, 2022.

[158]     The Court
finds that the plaintiff will be able to work full-time in a sedentary or light
work environment earning minimum wage. The Court does not find that there is a
real possibility for the plaintiff to continue to work at Rosemary Heights. Even
with possibly less physically demanding care which may be required for
residents other than those for whom the plaintiff cared, there would still be
physical demands that are beyond the plaintiff’s physical capabilities. In his
October 17, 2012 report Dr. Regan stated that: “There is no physical
reason [the plaintiff] could not be re-integrated into a nursing home
environment as a ward clerk for example” (at 8).

[159]     With the
plaintiff’s tested academic levels and vocational aptitude, the Court finds
that the plaintiff would not be able to perform the duties of a ward clerk. The
vocational assessment shows that she is not capable of performing clerical
duties.

[160]     With the
Court’s finding that the plaintiff will work full-time at minimum wage, the imputed
approximate annual salary is $20,000 (using a 37.5 hour work week).

[161]     Mr. Peever
calculated the cumulative present value of risk-only contingency adjusted
income for and including 2022 to be $249,705 based on an annual salary of
$37,245. The Court has adjusted Mr. Peever’s calculation to take into
account a $20,000 annual salary with non-wage benefits as described in Appendix
I of Mr. Peever’s August 29, 2014 report. With the small figures related
to the overall figures I have not included in my calculation the percentage
increase in Canada Pension Plan premiums as income increases.

[162]     The
computation of loss of future income by adjusting Mr. Peever’s computation is:

[($37,245 –
$20,000)/$37,245] x $249,705 = $115,617 rounded $115,600

[163]     The
plaintiff is awarded $115,600 as the loss of future income.

D.             
Loss of Housekeeping Capacity

[164]     The loss
of housekeeping capacity is a loss of an asset–a capacity: O’Connell v.
Yung, 2012 BCCA 57 at paras. 66-67.

[165]     The
plaintiff submitted that the past loss of housekeeping capacity was
approximately $23,000 based on 4 hours per week of housekeeping capacity with a
hourly wage of $22. The computation was:

5 years x 52 weeks
x 4 hours x $22 = $22,880

[166]     Using a
$25 hourly rate the plaintiff calculated a past loss of $26,000. The hourly rates
were provided by Mr. Padvaiskas, an occupational therapist qualified to
provide expert evidence with respect to occupational therapy and the cost of
future care.

[167]     The
plaintiff submitted that 4 hours per week was conservative because the
plaintiff’s daughter was helping with housekeeping at the time of the accident.

[168]     The Court
will award $10,000 as the award for the past loss of housekeeping capacity for
two reasons. First, a $22 hourly rate is high relative to the current minimum
wage ($10.25 per hour, now $10.45 per hour). Second, the plaintiff’s two sons
were also living at home and if they were not sharing in housekeeping duties,
they should have been. The net result is $2,000 per year for 5 years or
approximately $40 per week.

[169]     With
respect to the future loss of housekeeping capacity, plaintiff’s counsel stated
that this aspect be considered under the heading cost of future care claim (as
they did in argument) or could be awarded under a separate head of damages. I
will discuss this aspect below.

E.             
Cost of Future Care

[170]    
Our Court of Appeal in Johal v. Meyede, 2014 BCCA 509 stated that
in considering costs of future care the trial judge should ensure (at para.
44):

a)              
an “evidentiary link between the caregiver’s assessment of pain
or disability and the recommended care”;

b)              
“regard for the real and substantial possibility that the expense
will   be

incurred” and that “an allowance for the contingency that the
cost may not be incurred”; and

c)              
“the specific amount awarded for each item claimed” is
identified.

[171]    
Mr. Padvaiskas estimated the costs of future care based on the
following headings:

i)       massage
therapy;

ii)     
multidisciplinary chronic pain program;

iii)    psychiatry attachment;

iv)    psychological counselling;

v)    
occupational therapy;

vi)    exercise;

vii)   physical therapy;

viii) homemaking services;

ix)    equipment to promote independent residual functioning;

x)    
non-prescription medications; and

xi)    prescription medications.

                                                        
i.         
Massage Therapy

[172]    
In his September 12, 2014 report, at page 8, Mr. Padvaiskas states:

Ms. Badillo
currently reports benefit from massage therapy treatments, however, medical
reports appear to endorse a more active approach to promoting symptom
management through conditioning and exercise rather than passive treatments. I
recommend a contingency for 5 to 10 massage therapy sessions to allow Ms.
Badillo to taper her current participation as she embarks in a chronic pain and
exercise program. She reported that her current massage therapy treatments cost
$100.00 per hour.

[173]     No award will be made for massage therapy. A sufficient evidentiary
link between the caregiver’s assessment and the recommended care was not
established.

                                                      
ii.            
Multidisciplinary Chronic Pain Program

[174]     Mr. Padvaiskas
also recommended a multidisciplinary chronic pain program to
promote the “initiation of functional restoration” (at 7). He estimated the
cost to be $13,500.

[175]     In cross-examination Mr. Padvaiskas acknowledged that St. Paul’s
Hospital has a pain program but viewed the program he recommended as different
in that St. Paul’s program was on a more of an outpatient basis. The
specific program to which Mr. Padvaiskas referred was not mentioned by the
medical experts at trial.

[176]     The Court
is not satisfied that a $13,500 expenditure is warranted where the plaintiff,
upon one of her doctor’s recommendation, could attend, without charge, a pain
program offered by a highly regarded hospital such as St. Paul’s Hospital.

[177]     The Court
will not make an award under this subheading.

                                                    
iii.         
Psychiatric Attachment

[178]     Dr. Lu
recommended further psychiatric treatment. Mr. Padvaiskas stated that such
treatment is covered without cost by our Province’s medical plan. Accordingly,
the Court will not make an award under this subheading.

                                                    
iv.         
Psychological Counselling

[179]     Dr. Lu
stated that plaintiff needed at least 12 sessions of Cognitive Behavioural
Therapy (“CBT”) with longer term therapy anticipated.

[180]     The Court
will award 12 CBT sessions at $200 per session for a total award of $2,400. The
longer term treatment may be addressed by psychiatrists.

                                                      
v.         
Occupational Therapy

[181]    
Under this subheading, Mr. Padvaiskas recommends:

A contingency for occupational therapy is
recommended to continue focus on Ms. Badillo’s functional restoration and
independent productivity. Support with maintaining a routine, role
expectations, exploration of activities providing value and self worth such as
volunteer work and to promote adherence to an ongoing conditioning program is
recommended. Interventions may include assistance with supporting adaptive
symptom management strategies and identification of equipment to promote
independent functioning.

I recommend a tapered support beginning with
a higher level to support Ms. Badillo’s transition from the chronic pain
program. A total of 48 hours over the initial year is proposed. Over the longer
term and then an ongoing support in conjunction to psychological counselling to
assist Ms. Badillo with maintenance of gains. Reintroduction will require
integration of Ms. Badillo’s family physician to identify when a period of
support will be required. A contingency for between 10 and 15 years every 5
years is recommended.

[182]    
The Court does not see the need for occupational therapy. The
plaintiff’s injuries have been diagnosed. The types of exercises are either
well known or available through Dr. Lim, the plaintiff’s general
physician. In the Court’s view, matters are at a stage where the plaintiff can
be advised as to what are the necessary exercises and then do them (which with
her perseverance she will). She also has the support of her family.

[183]     No award
is made under this subheading.

                                                    
vi.         
Exercise

[184]     Mr. Padvaiskas
recommends a gym membership and kinesiology sessions. The Court does not find an
evidentiary link for the kinesiology sessions. As noted, there are exercises
that the plaintiff will be able to perform on her own to help with her
injuries, in particular, weakness on her left side.

[185]     Mr. Padvaiskas
estimated that cost of a work-out facility near the plaintiff’s residence to be
$563 per annum until the plaintiff reaches age 60 and then $383 per annum after
age 60.

[186]     The Court
will make an award based on the annual cost of the work-out facility
membership. Based on Mr. Peever’s September 15, 2014 report the present
value is $9,083.

                                                  
vii.         
Physical Therapy

[187]    
Dr. O’Connor and Dr. Regan each stated that the plaintiff
would benefit at least in the near term from a personal trainer. Dr. Regan
states:

I would suggest a personal
trainer to help her gain safe access to a gym and/or pool to begin a
self-directed exercise program to allow her to take charge of her own health
[at 7].

[188]     The
plaintiff is entitled to $500 per annum for physical therapy under her
husband’s benefits plan (until he turns 65 in March 2023). Based on Mr. Padvaiskas’s
report, the annual projected cost does not exceed $500 per annum.

[189]    
The Court will not make an award under the subheading. Until 2023 the
plaintiff is covered by her husband’s benefits plan. After that time the
evidentiary link has not been established.

                                                 
viii.         
Homemaking Services

[190]     Under this
subheading, Mr. Padvaiskas recommended:

Ms. Badillo is limited with her ability to
perform homemaking which is currently primarily addressed by her daughter. She presents
with chronic pain and functional restrictions but on the basis of medical
reports reviewed, the capacity to increase her involvement in homemaking with
therapy. Accordingly, I recommend 2 to 4 hours per week of support for the
first year concurrent to her participation in therapy. After the initial year,
depending upon her progress, between 2 hours per week and 2 hours per month is
recommended. The cost for the service is between $22.00 and $25.00 per hour.

[191]    
As the plaintiff’s daughter and two sons are all adults, to the extent
they remain living at home the Court expects, as part of the natural course of
matters, they will help (and would have helped if there had been no accidents) with
the household chores, especially the heavier chores. The plaintiff is capable
of lighter chores. As the plaintiff’s daughter and sons move away from home
there will be fewer chores. The Court is not satisfied that the Johal criteria
have been met. However, there has been a loss of physical capacity for
housekeeping activities.

[192]     A further
$15,000 will be awarded under the heading of loss of housekeeping capacity. This
award accords with O’Connell.

                                                    
ix.         
Equipment to Promote Independent Residual Functioning

[193]    
Mr. Padvaiskas states:

I recommend a contingency of between $300.00
and $400.00 for the purchase of equipment identified by Ms. Badillo’s occupational
therapist, to promote her independent functioning. Equipment needs will be
determined following opportunity to achieve gains through proposed therapy.

[194]    
The evidentiary link has not been established. It is a contingency. The Johal
criteria are not met.

[195]     No award
will be made under this subheading.

                                                      
x.         
Non-prescription Medications

[196]    
Mr. Padvaiskas for this subheading states:

Ms. Badillo currently reports taking 4 to 6
extra Strength Tylenol tablets per day. The cost of a bottle of 100 tablets
from London Drugs costs in the range of $9.99 or $0.10/tablet. Based upon her
current consumption pattern, the yearly cost forth is medication is between
$146.00 and $219.00.

[197]    
There was no direct medical evidence that non-prescription medications
were necessary in addition to the prescribed medications. As described under
the next subheading, various prescription medicines have been recommended to
address the plaintiff’s symptoms and help her condition.

[198]     No award
will be made under this subheading.

                                                    
xi.         
Prescription Medications

[199]    
Mr. Padvaiskas states:

ln terms of accident related prescription
medications which include Cymbalta (60mg), Flexeril (10 mg) and Trazedone (50
mg), on the basis of Ms. Badillo’s current consumption patterns and costs
quoted from London Drugs Pharmacy, the costs are as follows:

Cymbalta (60 mg), $135.63 for 30 tablets or
$4.52/tablet, assuming daily use the yearly cost is $1,649.80.

Flexeril (10mg), $22.73 for 30 tablets or
$0.76/tablet, assuming daily use the yearly cost is 277.40.

Trazedone (50 mg), $12.45 for 30 tablets or
$0.42/tablet, assuming daily use the yearly cost is $153.30.

In total,
accident related prescription medications cost $2,080.50 per year

[200]    
In her written submission, the plaintiff stated:

[189] The court heard evidence that Ms. Badillo has coverage
for her prescription medication through he husband’s extended health plan. As
she will only have coverage until her husband turns 65, the plaintiff claims
the recommended costs of prescription medication beginning 2023.

[190] The present value cost of Cymbalta is calculated as
follows:

The applicable multiplier is found
in Table 1 [from Mr. Peever’s September 15, 2014 report] for 2023

14,560 / 1000 * $1,649.80 =
$24,021.09

[191] The present value cost of Flexeril is calculated as
follows:

The applicable multiplier is found
in Table 1

14,560 / 1000 * $277.40 =
$4,038.94

[192] The present value cost of Trazedone is calculated as
follows:

14,560 / 1000 * $153.30 = $2,232.05

[193] The plaintiff claims
$24,021 for Cymbalta beginning 2023, $4,038 for Flexeril beginning 2023, and
$2,232 for Trazodone beginning in 2023.

[201]     The
prescribed medications were supported by the evidence. Moreover, a doctor would
not prescribe a medication unless the doctor in his or her professional opinion
viewed the medication as necessary.

[202]     As
defendant’s counsel argued, there was no direct medical evidence that all of
the medications, in the same frequency, will be necessary in the future. I
accept defence counsel’s argument on this point.

[203]     I also
note that PharmaCare assistance programs may also be available (See Appendix II
of Mr. Padvaiskas’s report).

[204]    
In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, the
Supreme Court of Canada stated at para. 21:

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

[205]     Considering
the vagaries, possibilities, contingencies, and risks, the Court will award
$10,000 under this subheading.

F.             
Special Damages

[206]     The
parties agreed that the plaintiff incurred the $19,634 in the special damages
she claims. The defendants argued that the amount should be reduced to
recognize the application of the crumbling skull doctrine and the fact that the
plaintiff’s falls were unrelated to the motor vehicle accidents.

[207]     As
described above, the Court found that the crumbling skull doctrine does not
apply to the case at bar and that the falls were caused by the motor vehicle
accidents. Accordingly, the plaintiff is awarded $19,634 in special damages.

XIX.       
conclusion

[208]     The
plaintiff is awarded as damages:

[209]    
Unless there are matters of which the Court is not aware, the plaintiff
is awarded her costs at Scale B.

“Funt J.”