IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150925

Docket: S134513

Registry:
Vancouver

Between:

Selma Susan
Boysen-Barstow

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

[1]            
The plaintiff, Susan Boysen-Barstow (Ms. Barstow), brings this
action to recover damages arising from a motor vehicle collision. The driver of
the other vehicle involved left the scene before her particulars could be
determined. As a consequence, ICBC is the nominal defendant. Liability has been
admitted. The task of this Court is to assess the damages to which the
plaintiff is entitled.

[2]            
The accident occurred in Richmond shortly after noon on July 14, 2011. Ms. Barstow
was alone in her vehicle, a Mini Cooper, travelling on Bridgeport Road. She had
just come to a stop at a red light when her car was struck from behind. The
force of the collision was substantial. Ms. Barstow was stunned by the
crash. After a moment, she got out to inspect the damage, and she spoke briefly
with the other driver. The parties then moved their vehicles off the roadway
and into a nearby parking lot. As they did that, the driver of the other
vehicle drove away, not to be seen again.

[3]            
Ms. Barstow contacted her husband and he attended at the scene a
short time later. A passing police car was flagged down and an ambulance was
called.

[4]            
The ambulance attendants indicated their view that the plaintiff should
be transported to the hospital. Ms. Barstow refused; instead she had her
husband drive her to the office of her family physician where she saw the
doctor.

[5]            
Since that time, the plaintiff has experienced a number of consequences
which she says are attributable to the injuries she sustained: some are
physical; some are psychological. Her testimony and the evidence she has
adduced speak to the extent of the injuries and the effects they have had upon
her life, including her relations with others, her employment, and also the
prospects for her future.

[6]            
Ms. Barstow claims damages under a number of heads. Those are:

·      
Non-pecuniary damages

·      
Past income loss

·      
Loss of future earning capacity

·      
Special damages

·      
Cost of future care

·       Cost
of tuition and books for alternate career training

[7]            
I will deal with each of these heads of damages individually. However,
before doing so, it will be helpful to set out a little bit of the plaintiff’s
background and circumstances.

[8]            
Ms. Barstow was 48 years old at the time of trial. She is married
and has three children, ages 20, 18 and 9. Prior to the accident, she was
physically active and generally enjoyed good health.

[9]            
Earlier in her life, she had worked in the travel industry and had been
a real estate assistant. In 2001, she began to work as a territory sales
manager for a firm that supplied restroom hygiene supplies and services. She
was in that job at the time of the accident at bar.

[10]        
The plaintiff says that the accident resulted in injuries to her neck,
shoulders, and upper and lower back and that she sustained a mild concussion,
although not certain, she believes she may have had a momentary loss of
consciousness following the impact. She experienced neck, shoulder, and back
pain, initially quite severe, and had significant headaches for a period of two
to three months following the accident. She found it difficult to sit for
anything other than fairly short periods of time. As well, she says that she
suffered from a condition diagnosed as a situational phobia (travel anxiety),
and says that was particularly disruptive for her: recovering from that
condition has been difficult for her. Initially she was afraid to drive and was
an extremely nervous passenger when riding with others.

[11]        
Ms. Barstow remained off work from the time of the accident until
December 2011, when she began a graduated return to her job. I note that her
doctor recommended she try to begin her return in September, but the plaintiff
did not feel ready at that time. By March 2012, she had returned to work full
time.

[12]        
The plaintiff says that her return to work was difficult, and that was
principally due to the fact that her job required a substantial amount of
driving to meet with her customers and other associated duties. By July 2012,
she felt that the anxiety was not resolving but was becoming more of an issue.
She decided to quit her job.

[13]        
I pause to note that the decision to quit was not an entirely
straightforward matter of being unable to continue because of consequences of
the accident. There had been changes in the corporate structure of Ms. Barstow’s
employer, with the result that her duties and responsibilities had become much
more difficult. The evidence at trial is that others of her colleagues found
the situation untenable and have since elected to leave and find other work.

[14]        
In the circumstances, I am not prepared to find that the accident and
its effects were solely responsible for the termination of that employment.
Other considerations also informed that decision, but the effects of the accident
were a dominant reason.

[15]        
In July 2012, Ms. Barstow’s counsel sent her to see a psychologist,
Dr. Bishop, to deal with the driving anxiety. Dr. Bishop referred Ms. Barstow
to another psychologist, Dr. Murdoch, who first saw her in January 2013.
There were four to six sessions with Dr. Murdoch, ending in July 2013.

[16]        
Prior to the accident, I am satisfied that the plaintiff was a very fit
person for whom physical activity was an important part of her lifestyle. Her
long-term objective was to be able to run a marathon, and she was training for
that when she sustained these injuries.

[17]        
At trial, there was considerable dispute between the plaintiff and the
defendant with regard to what level of activity she was able to achieve
following the accident. For example, in October 2012, she, along with others,
climbed Mount Kilimanjaro as part of a fundraising initiative. Much was made of
the level of fitness that accomplishment evidenced. The plaintiff took the
position that the climb was in fact more in the nature of a careful and
methodical hike, not a basis to conclude that her former level of fitness had
been fully recovered.

[18]        
In July 2013, Ms. Barstow began to see a kinesiologist, Ms. Tung;
there were a total of 21 sessions, ending in November, and it seems evident that
those were effective.

[19]        
Since that time, the plaintiff has attended at a fitness studio in her
neighbourhood and has regularly practised hot yoga.

[20]        
 My understanding is that, by diligently following this routine in
conjunction with her other fitness activities, she is able to remain pain free
and enjoy a quite satisfactory level of physical health and fitness.

[21]        
Ms. Barstow tendered the evidence of Dr. le Nobel, a
physiatrist. He first saw her in February 2013, and it was apparently at his
recommendation for increased cardiovascular and physical fitness activity that
she began to see Ms. Tung and began her attendance at the fitness studio.

[22]        
Dr. le Nobel has also provided his opinion with respect to the
plaintiff’s injuries and her status. His diagnosis, made in February 2013, is
chronic pain, chronic post-traumatic headache, myofascial pain, myofascial
syndrome, and deconditioning. He assessed Ms. Barstow eighteen months
later. His opinion at that time was that she was disabled as a result of the
accident and that her prognosis is poor; he found she had chronic pain in the
myofascial tissues around the spine and that she was deconditioned. He
recommended against any prolonged sitting and a job that entailed any
significant driving.

[23]        
The evidence discloses that the plaintiff saw her family doctor a total
of nine times following the accident and in relation to the effects of it. None
of those visits was after December 2012. No medications were ever prescribed to
Ms. Barstow for the effects of the accident, and I note that there was
never any radiology examination conducted nor was there ever any physiotherapy
treatment taken. There was some massage.

[24]        
Defence counsel, in final submissions, asked the Court to draw
conclusions from certain inconsistencies in the plaintiff’s evidence. I decline
to do so. While there were some inconsistencies, I do not believe they rise to
a level where I should doubt the plaintiff’s credibility. As a practical matter,
it is not uncommon for persons who are describing their injuries and the
effects of those injuries at trial to remember and describe those matters in a
way that doesn’t accord perfectly with all of the other evidence. The nature
and extent of that deviation may be significant, or of small moment.

Non-Pecuniary Damages

[25]        
My conclusion is that the plaintiff sustained moderate soft tissue
injuries in the accident, causing her neck and back pain and headaches. The
headaches resolved within a few months, and the other physical discomfort
gradually resolved to the point that, by taking appropriate care, Ms. Barstow
was substantially pain free by the end of 2013. I accept that she has a certain
vulnerability to back discomfort with prolonged sitting and that requires some
management; that is a condition which has not fully resolved, although it is
certainly not characterizable as an acute disability. It is a relatively minor
artefact of the accident requiring some accommodation.

[26]        
It follows that I am not fully able to accept the opinion of Dr. le
Nobel as an accurate view of Ms. Barstow’s condition and prognosis. With
respect, it simply does not accord with the substantial body of evidence that
is before me.

[27]        
As for the psychological aspect of the effects of the accident, the
phobia experienced while travelling in a motor vehicle, both as a passenger and
a driver, I accept that was, certainly initially, a problem that caused serious
difficulties for the plaintiff. It contributed to her difficulties in carrying
out her duties at work when she returned and was, I am sure, a factor in her
decision to end that employment. However, I am also satisfied that by the time
of trial, that has substantially resolved and whatever lingering unease she may
have in an automobile is of a quite minor magnitude.

[28]        
I accept the evidence of the plaintiff and Mr. Barstow that the
plaintiff’s disposition and temperament was adversely affected to an extent by
the accident, though that has diminished over time. I also acknowledge that the
plaintiff’s marriage was, during that time, made more difficult as a result.

[29]        
In terms of determining the appropriate quantum of damages to compensate
the plaintiff for her pain, suffering, and loss of enjoyment of life, the role
of the court is to arrive at a sum which is fair to both the plaintiff and the
defendant, and which provides a full and proper one-time compensation for all
of the effects that have been caused by the defendants’ negligence—effects past,
present, and future.

[30]        
Both the plaintiff and the defendant make reference to the guidance
provided by our Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34. A
trier of fact is required to take into account the principles stated there and
to consider the full range of criteria that are enumerated. I have examined the
evidence relating to this claim in accordance with the dictates set out in Stapley.

[31]        
As well, the court will have reference to decisions of other courts
where there are similarities between the relevant facts. Those can provide some
useful guidance in ascertaining quantum, although the effect is not to be
overstated, and ultimately, each case is decided on its own facts.

[32]        
In the matter at bar, the plaintiff submits that an appropriate amount for
damages under this head is in the order of $90,000. In support of that, she
relies upon three cases that she says are useful comparators:

·      
Smith v. Williams, 2011 BCSC 1806 – $75,000

·      
Kilian v. Valentin, 2012 BCSC 1434 – $75,000

·       Wangert
v. Saur, 2013 BCSC 99 – $50,000

[33]        
The defendant submits that an award in the range of $50,000 to $60,000
is appropriate in the circumstances of Ms. Barstow. The following three
cases are cited as suitable comparators:

·      
Tung v. Allen, 2008 BCSC 666 – $60,000

·      
DeGuzman v. Ge, 2013 BCSC 1450 – $50,000

·       Bissonnette
v. Horn, 2012 BCSC 518 – $50,000

[34]        
The defendant asks that the Court draw an adverse inference from the
plaintiff’s failure to call her family physician as a witness, citing Buksh
v. Miles, 2008 BCCA 318. While I appreciate the point made by the defendant
and have considered it, I am not satisfied that the circumstances of this case
warrant that measure being taken. Accordingly, I decline to draw such an
adverse inference.

[35]        
In my respectful view, when the circumstances are considered in their
totality, together with the cases relied upon, the quantum of the award sought
by the plaintiff is excessive. I find that an appropriate award for pain,
suffering, and loss of enjoyment of life is $70,000.

Past Income Loss

[36]        
As described earlier, the plaintiff resigned from her job at
Sani-Service in July 2012. She considered taking other employment similar to
the job she had; the evidence is that she would have been a promising candidate
for positions at Canadian Linen and COIT but that she did not believe that
those jobs were suitable for her, given her physical issues and, particularly,
the driving required.

[37]        
She remained unemployed until early 2013, when she began to work for her
husband’s residential construction company. She worked there from that time and
was so employed as at the date of trial. The work, as I understand, is less
than full time.

[38]        
This is not a matter which lends itself to a precise calculation. There
are a number of considerations that, in my view, inform the analysis and
outcome. My determination and the explanation for it follow.

[39]        
The analysis begins by establishing a benchmark for the plaintiff’s
demonstrated earning capacity prior to the motor vehicle accident. Her income
in 2009 was approximately $64,000. The following year, it was substantially
more: $81,500.

[40]        
The plaintiff says that the Court should use her 2010 income as the
comparator; the defendant says that the comparator should be based upon an
average of the two prior year’s income, 2009 and 2010.

[41]        
I conclude that the appropriate sum is closer to the 2010 than the 2009
figure. I do not consider her 2010 income to have been an anomaly, but rather a
reasonably reliable indicator of Ms. Barstow’s earning ability in the
field in which she worked. Of course, there are always contingencies in matters
such as this. In the result, I conclude that a proper number to use is $75,000.

[42]        
In 2011, the year of the motor vehicle accident, the plaintiff’s actual
income was 62,322. That was $12,700 less than the benchmark.

[43]        
In 2012, the plaintiff returned to work at Sani-Service, but then quit
that employment in July. Her income for the year was $49,646. That was
approximately $25,400 less than the benchmark. I note that year she took vacation
time in order to make her climb of Mount Kilimanjaro. That was a not-insubstantial
amount of time that she removed herself from availability for the workforce,
and allowance should be made for that. I conclude that it is appropriate to
reduce the sum for 2012 by $3,000. Accordingly, I determine her income loss for
the year to be $22,400.

[44]        
In both 2013 and 2014, the plaintiff worked doing interior decoration
and other duties for her husband’s company. There is some confusion in the
evidence with respect to the actual amount paid and the basis of the
calculation. For tax purposes, the plaintiff is recorded as having earned
approximately $37,500 in 2013 and was, as of the time of trial, expected to
claim a similar amount in 2014. Ms. Barstow contends that her actual
income for those two years was approximately $18,000 per annum. In her submission,
that is an appropriate sum considering the company’s limited ability to
monetize the services she provided and that this arrangement was effectively an
income-splitting measure undertaken in significant part by Mr. Barstow’s
wish to provide his spouse with an opportunity to feel that she was making a
meaningful contribution.

[45]        
The defendant takes quite a different view, submitting that

[t]he evidence suggests that
there is no clear basis for the plaintiff’s remuneration in salary from Barstow
Construction, a family owned company, and her income from dividends as a
shareholder’s it is entirely discretionary. The defence submits that the
plaintiff’s income from wages and dividends do not reflect the proper
remuneration for her services and contribution to Barstow Construction, and
that the injuries from the Accident do not preclude her from receiving a level
of income that meets or exceeds her earned pre-Accident salary. [Defendant’s
submissions, para. 93]

[46]        
My conclusion with respect to the plaintiff’s compensable wage-loss
claim for 2013 and 2014 is derived by another analysis. Based on the evidence, I
proceed from the position that she earned $37,500 for each of those years; that
conclusion is informed by the evidence of the company’s accountant at trial. Accordingly,
without further adjustment, her loss, when compared to the benchmark of $75,000,
is $37,500 for each year.

[47]        
However, I find it necessary to adjust that loss, because, in my view,
in those years, the plaintiff’s health had substantially improved, such that it
is reasonable to expect she would take steps to find more remunerative work, work
more in accord with her established earning ability. That observation applies
to 2013 and, to a greater extent, 2014. In effect, given Ms. Barstow’s
recovery, there was an obligation upon her to seek employment commensurate with
her demonstrated capability to earn income.

[48]        
The adjustment to be made is to reduce the calculated loss by 25% for
2013 and 35% for 2014.

[49]        
In the final result, the plaintiffs wage loss claim, to date of trial,
is as follows:

·      
2011       $12,700

·      
2012       $22,400

·      
2013       $28,125

·      
2014       $24,375

Total: $87,600

Loss of Future Earning Capacity

[50]        
The parties are agreed as to the principles that govern the adjudication
of a claim of this nature and that will inform the Court’s assessment of the
claim. They cite Perren v. Lalari, 2010 BCCA 140, as a proper statement
of the current law.

[51]        
Courts can use either of two different approaches when making a
determination for loss of future earning capacity: one is the earnings
approach, based on the projected annual income loss to the plaintiff; the other
is the capital asset approach, which looks at the loss of value in the
plaintiff as an income-earning individual. The former is better suited for
cases in which the plaintiff’s loss is more easily measureable.

[52]        
The burden in these claims is on the plaintiff to prove that there is a
real and substantial possibility of future income loss. Regarding hypothetical
and future events, the standard of proof to meet is simple probability, not the
balance of probabilities. Courts may also make contingencies for potential
improvements in the plaintiff’s health or employment prospects. The exercise is
an assessment, not a calculation.

[53]        
The plaintiff says that she has proven that a loss will occur; she says
that the opinions of Dr. le Nobel and Dr. Bishop are “that she should
not and is not capable of doing the type of job she did before” (plaintiff’s
submissions, page 28).

[54]        
Ms. Barstow says that she has tried to find new work for herself.
Given her permanent limitations, she has chosen interior design, for which she
appears to have an aptitude.

[55]        
The evidence is that the range of salary for that vocation is between
$44,000 and $53,000 per annum.

[56]        
Ms. Barstow says that is a reasonable choice and it is a job that
she would enjoy doing. She proposes to work for her husband’s construction
company in that capacity (and, I would expect, to some extent, also in the
broader commercial marketplace) and she seeks an award of damages under this
head, based upon an income, going forward of $37,000 per annum.

[57]        
In her the submissions, the plaintiff says this:

Mr. Darren Benning of PETA Consultants has estimated
that if the Plaintiff continues working at Barstow Construction for the rest of
her working life, her future loss will be $425,409. However, the evidence is
concerning as to whether she will actually add this level of profit to Barstow
Construction, and thus be paid what is fair and reasonable, as opposed to
merely income sharing with her husband. In fact the Plaintiff may be making a
claim for less than her actual loss.

Mr. Benning has calculated that if she were to take the
BCIT Certificate program and complete it in 12 months, and find a job in the
marketplace, then her loss would be $408,420 (using the statistics of the range
of salary in BC for interior designers.) If she were to complete it in 18
months, the loss would be $415,225 if she found a job in the marketplace.

Therefore, the Plaintiff submits
that at the very least her award should be $408,000 for future loss of
capacity, but to be in line with the evidence should be $425,409. [Plaintiff’s
submissions, page 29]

[58]        
With the greatest of respect, I have great difficulty accepting that
analysis. My difficulty stems from the considerations which follow.

[59]        
The first is my conclusion that Ms. Barstow is not, at this time,
disabled in any meaningful way. By the time of trial, her complaints had
largely resolved. At worst, she feels a degree of unease with spending a great
deal of time driving. As well, she experiences discomfort with prolonged
sitting.

[60]        
In my view, those do not rise to the level of disability that the
plaintiff contends.

[61]        
Furthermore, her recovery track and serious commitment to fitness will,
I am confident, act to her benefit with respect to the sitting issue as time
moves forward.

[62]        
The other consideration flows from the impression that I formed of the
plaintiff from the trial. The quality of Ms. Barstow that most struck me is
the initiative and confidence that she demonstrated in her pre-accident
employment and toward life generally. She has undoubtedly been a dynamic and
successful performer. Her advances in the workforce and her increased income
attest to that. Furthermore, it was her testimony that she enjoyed the work she
did.

[63]        
Given those attributes and a proven ability to meet the demands of a
challenging job, manage accounts in a practical and effective manner, deal with
clients, and train and supervise others, I gravely doubt her contention that
she is not able to return to the completive workforce as a result of the
injuries she sustained in the subject motor vehicle accident. To say that there
are no jobs of a generally equivalent type available to her is not tenable.

[64]        
Taking all of that into account, and meaning Ms. Barstow no
disrespect, I am unable to accept her evidence that the ceiling for her career,
going forward, is to do interior design projects, principally for her husband’s
company, earning less than half of the income she made in her last full year
prior to the motor vehicle accident.

[65]        
While there may be an element of personal preference to that path, when
it is considered fairly and objectively, it is not a reasonable proposal. The
plaintiff’s position brings to mind a reference made by Cumming J.A., for the
majority, in Parypa v. Wickware, 1999 BCCA 88, at para. 67:

[67] These cases demonstrate that the trier of fact, in
determining the extent of future loss of earning capacity, must take into
account all substantial possibilities and give them weight according to how
likely they are to occur, in light of all the evidence. However, in calculating
such likelihoods, the plaintiff is not entitled to compensation based solely on
the type of work she was performing at the time of the accident. There is a
duty on the plaintiff to mitigate her damages by seeking, if at all possible, a
line of work that can be pursued in spite of her injuries. If the plaintiff is
unqualified for such work, then she is required, within the limits of her
abilities, to pursue education or training that would qualify her abilities, to
pursue education or training that would qualify her for such work. If the
plaintiff claims she is not able to mitigate by pursuing other lines of work or
by retraining, she must prove this on a balance of probabilities. The
requirement for mitigation is addressed by this court in Palmer, supra,
at 59:

A plaintiff is not entitled at the cost of the defendant to
say, “The only sort of work I like is such and such. I cannot do that. Therefore,
you must give me sufficient capital to replace the income I cannot earn on that
sort of job”.

What the respondent proved in this case was that he had lost
his capacity to follow the sort of occupation he was pursuing at the time of
the accident. But that did not prove, on a balance of probabilities, that he
could not earn by pursuing some other sort of occupation, as much as before.

The plaintiff is obliged to take reasonable measures to
mitigate her damages by seeking other work that can be pursued, taking account
of her injuries, and retraining if necessary.

[66]        
In the result, I decline to follow the plaintiff’s approach to
quantifying her loss, as it is articulated in the evidence of Dr. Powers
and Mr. Benning.

[67]        
I conclude that the plaintiff is entitled to an award of damages to
compensate her for a loss of capacity to earn income, but that the appropriate
method of quantifying the damages is by way of the capital asset approach.

[68]        
I find that she has sustained some impairment of earning capacity, and I
am satisfied there is a real and substantial possibility that will result in a
pecuniary loss to her.

[69]        
Determining the quantum of that loss is challenging. Prediction of the
future in such a situation is notoriously difficult. There are of course a
number of contingencies to consider, both positive and negative. Ultimately,
the Court is left to make its best assessment of the value of the loss.

[70]        
In the case at hand, I find that an appropriate award under this head is
$100,000.

Special Damages

[71]        
Ms. Barstow claims $6,153.79 for past special damages. The elements
of that claim are set out in her written submissions:

The Plaintiff claims for $6,153.79 for past special damages. This
is comprised of her user fees (the part ICBC did not pay) for her various
treatments after the accident, namely massage therapy, and her claim for the
Bikram Yoga sessions and the clothing she needed to purchase to participate,
Thompson Community Centre, and Russel Sean Fitness. She also claimed for her
massage treatment at Sandinave Spa at Whistler.

Further amounts have been claimed for her mileage to
appointments for massage therapy, yoga and Russel Sean Fitness.

And finally, the Plaintiff is
claiming for an unpaid invoice for the towing of her vehicle after the accident.
I note that the Defendant, who would have been the one to pay the invoice for
towing of the vehicle, had it been paid, did not produce any evidence that it
had been paid. [Plaintiff’s submissions, page 30]

[72]        
The defence takes issue with certain of the expenses claimed, contending
that certain minor expenses and the nature of towel rental, water, and clothing
costs associated to physical rehabilitative activities are not compensable. The
defendant also disputes a claim of $164.85 for massage on the basis that it was
rendered in the context of a luxurious resort spa, and, when compared to the
usual cost for a massage, the claim is excessive. Finally, the defendant
challenges the claim for the cost of towing, contending that the plaintiff
testified at her examination for discovery that the expense had been
reimbursed.

[73]        
I decline to make the reduction sought by the defence, other than for
one item. I find that the minor amounts claimed with respect to equipment and
supplies in the course of attendance for fitness and yoga are not unreasonable,
given that they are related to her participation in those rehabilitative
activities. The plaintiff is entitled to recover those.

[74]        
The claim for massage at the spa in Whistler is substantially in excess
of cost of the usual therapeutic massage treatment. The sum of that claim will
be reduced by $100.

[75]        
As for the towing cost, there is confusion in the evidence. On balance,
I am not satisfied that the plaintiff has been reimbursed and so that part of
her claim is allowed.

[76]        
The plaintiff is entitled to recover the sum of $6,053.79 for her
special damages.

Cost of Future Care

[77]        
The plaintiff claims a total sum of $61,863 under this head. That is
comprised of the present value of yearly gymnasium and fitness studio fees and
the fees to continue with Bikram Yoga, both for the duration of her life.
Additionally, she seeks the sum of $2,550, representing a one-time expense for
the cost of 15 psychotherapy “booster” sessions as recommended by Dr. Powers.

[78]        
The defence takes the position that the sums claimed are not reasonable
and not compensable in the quantum claimed. The defence says that the “booster
sessions" have not been shown to be medically justified and that a sum of $1,000
would adequately cover the cost of those.

[79]        
As for the yoga and fitness cost claims, the defendant says there is no
medical evidence that either of those are required from the date of trial for
the balance of the plaintiff’s life. The defence notes further that the
plaintiff testified the monthly cost of the fitness facility where she has
elected to attend is nearly double the charge of the community centre. In
summary, the defence’s position is that a reasonable amount for the yoga and
gym pass is $2,000, noting that the evidence of the kinesiologist was that Ms. Barstow
is capable of performing her exercises independently.

[80]        
As my reasons make clear, I accept Ms. Barstow’s diligent pursuit
of her workout regime and the yoga practice has been an important component in
her recovery and in enabling her to remain pain-free.

[81]        
I also accept that the plaintiff is continuing in this fitness regimen,
and I believe, based on her long history of athletic pursuits, she will likely
continue to do so. The plaintiff is to be commended on this as it has no doubt
been beneficial to her recovery.

[82]        
However, I am not convinced that there are not resources available that
would be just as beneficial to the plaintiff in a more economical format. In a
recent decision of this Court, I relied on the judgment in Gignac v. Insurance
Corporation of British Columbia, 2012 BCCA 351, for the principle that
awards for future care should be based on what is reasonably necessary to
promote the health of the plaintiff, not merely what is desired: Dunne v.
Sharma, 2014 BCSC 1106 at paras. 10–11.

[83]        
I therefore award the plaintiff $20,000 for the costs of future care. I
am satisfied that amount fairly and adequately covers her needs as they arise
from the other driver’s negligence in the subject motor vehicle accident. With
respect to the funds for the booster therapy sessions, I am of the view that $1,500
properly compensates Ms. Barstow.

[84]        
The plaintiff is consequently entitled to a total amount of $21,500 for
costs of future care. She will, I am confident, spend those funds for this
general purpose as she requires and her needs will be adequately met.

Cost of Tuition and Books for Alternate Career Training

[85]        
Ms. Barstow claims the sum of $8,505 to compensate her for the cost
of tuition at BCIT and $630 for books related to that.

[86]        
The defence contends that, given the plaintiff’s testimony and that of Dr. Powers,
she is not likely to attend the BCIT and as such no award should be made for
books for tuition.

[87]        
In my view, this claim must be assessed in the light of my ruling with
respect to Ms. Barstow’s claim for loss of future earning capacity.
Essentially, I declined to accept her analysis, which included that she would retrain
as an interior decorator.

[88]        
Notwithstanding that, the conclusion I reached with respect to her
future earning scenario allows for the reasonable likelihood that there will be
some further training required. I find it appropriate to award the sum of $5,000
for future training, as the plaintiff may require.

Summary

[89]        
In the final result, the plaintiff is entitled to recover the following
sums:

1.     Non-pecuniary
damages:             $70,000

2.     Past
income loss:                        $87,600

3.     Loss of
future earning capacity:   $100,000

4.     Special
damages:                        $6,053.79

5.     Cost of
future care:                     $21,500

6.     Costs of
training:                         $5,000

Total: $290,153.79

[90]        
With respect to costs, of course the ordinary rule is that costs follow
the event. There may be considerations of which I am unaware.

[91]        
For present purposes, I will leave this matter unaddressed with the
expectation that counsel will be able to resolve that. In the event that the
Court’s involvement is required, arrangements can be made to appear before me.

“J. Williams, J.”