IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: 50890

Registry:
Vernon

Between:

Donna Reimer

Plaintiff

And

Jesse Paul
Bischoff and Helen Elaine Cheesman

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

I.                
INTRODUCTION

[1]            
This dispute concerns the quantum of damages arising from a motor
vehicle accident.

[2]            
On June 19, 2011, the plaintiff, Donna Reimer, then 55 years old, was
heading north on Highway 97A in her 2003 Toyota Echo. She slowed to make a
left-hand turn onto Harding Road allowing oncoming vehicles to pass. Helen
Cheesman was driving a 2003 Toyota Corolla and came to a stop behind Ms. Reimer.
The defendant, Jesse Bischoff, was also heading north in his 2000 Ford F-350. Mr. Bischoff
was towing a flat deck trailer at the time. Mr. Bischoff failed to stop. His
Ford truck rammed into the back of the Corolla which pushed forward into the
back of Ms. Reimer’s Echo. The parties agree on these circumstances.

[3]            
As a result of the accident, the plaintiff’s Echo was a total loss. The
defendant Bischoff admits liability. Although Helen Cheesman is also named as a
defendant, the parties did not dispute that she bears no liability for the
accident.

[4]            
The plaintiff seeks general damages, past wage loss and/or earning
capacity, loss of future earning capacity, an award for loss of sale of her business,
cost of future care, and special damages.

II.              
BACKGROUND INFORMATION

[5]            
The plaintiff was born April 23, 1956. She did well academically at
school, especially in math and English. She was married at age 15, completed
her high school education and obtained a certified general accounts accreditation
(a “CGA”) through correspondence. She then worked in the accounting field until
2006 when she purchased a franchise called Surecopy.

[6]            
Prior to the accident, the plaintiff enjoyed reading, gardening, music, computers,
and spending time with her children and grandchildren. She was physically
active and socially went to movies and plays with friends. Her only
pre-accident health concern was that she developed menstrual migraines that
would begin within a couple days of her period and last from two to five days.

[7]            
The plaintiff’s version of the accident was that she was stopped to make
a left-hand turn, allowing oncoming traffic to pass her when she was on Highway
97A and Harding Road. She said she started her initial turn and saw the
defendant Bischoff’s truck, but that the car behind her was “gone”. She states
that she did not have time to brace herself. She recalls gritting her teeth, being
pitched forward then backwards, and states that she struck her head on what she
would later conclude was a seatbelt post. She recalls thinking that she had
actually struck a headrest but questioned as to why it was so hard. Her head
“really, really hurt” and she had a swollen bump or “goose egg” on the back
left side of her head.

[8]            
She believes her car was propelled about 100-200 feet down the road to a
pull out. The photographic evidence showed that the car in fact only travelled
a very short distance. She got out of the vehicle, talked to the police, and called
her son Danny as she could not recall her son Manny’s phone number. Her son
Danny arrived. She then drove her car a few blocks to her home. She called the
Insurance Corporation of British Columbia (“ICBC”) and reported the claim.

[9]            
She recalls feeling nauseous. Her son drove her to a rental car agency
where she rented a car and then drove herself to the emergency room at the
Vernon Jubilee Hospital where she was examined. The physician noted a head
contusion and discharged her with an information sheet on head injuries. The
emergency doctor noted there was no lack of consciousness.

[10]        
She further states that her whole body ached, including her head. She
felt nauseous. She had to lean against the shower to stay upright. Her head was
spinning. She went to work the next morning and she was unable to correctly fill
in some invoices. She had to lean on a photocopy machine. Four days later she
went to see her family doctor, Dr. Williams. He noted her complaint of
headaches and nausea, experiencing pain in her left side down to her left
buttocks, and having trouble concentrating. She was referred to physical
therapy.

[11]        
The nausea, intense dizziness, and imbalance remained constant for the
first three weeks, after which her migraines increased in regularity. She
states that she was having up to 20 migraines in a 30-day period after the
accident, but that she now averages about six migraines a month. Her migraines
do not always coincide with her menstrual period.

[12]        
She describes work as difficult. She states that she was struggling to
make change, and that she sometimes forgets to signs cheques. She further
states that her energy level has been down since the accident and her mood has
changed from being a happy person to one that feels tired and grouchy.

[13]        
The plaintiff also states that her memory has been affected. She has
left the burner running on her gas stove, and she no longer reads novels as she
would forget what she had read the night before.

[14]        
The plaintiff’s soft tissue injuries substantially resolved in May 2012.
However, she stated that she had a series of nightmares involving car accidents
and that those only recently dissipated in the spring of 2015.

[15]        
The plaintiff’s daughter, Kim Jackson, owns her own business and lives
in Kimberley, British Columbia. In the years leading up to the accident she
would visit her mother four times a year and they would speak on the phone
almost weekly. She described her mother prior to the accident as being quiet
but social. They would watch movies and go to the beach. In addition, the
plaintiff enjoyed spending time with her children and grandchildren and was an
avid reader. She said her mother, prior to the accident, was content with her
work, was energetic and was good with customers. However, immediately after the
accident she noticed her mother’s speech pattern on the phone had changed,
describing her as grasping for words and there were gaps in her speech, often
filled with an “um” or an “ah”. She also states that her mother had an
increased frequency of migraines.

[16]        
The summer following the accident, Ms. Jackson saw her mother for
three to four days. She also noticed a change in her mother’s walking. She
seemed to shuffle and wobble. She states that her mother was holding on to
walls and door frames.

[17]        
Ms. Jackson describes her mother’s mood as changing after the
accident. She was frustrated, did not seem to have the same “coping mechanism”.
She states that having a conversation with her mother now is frustrating. She states
that her mother appears “less intelligent” and that she finds a conversation
with her somewhat of a “drag”.

[18]        
She believes that the accident has affected her mother’s accounting
abilities. She states that when she now asks her mother for assistance with an
accounting program which was very familiar to her mother prior to the accident,
her mother struggles with the appropriate inputs for the program and becomes
very frustrated. She also believes that the quality of her mother’s life has
been adversely affected. Her mother no longer has the same amount of energy to
interact with her family, and her confidence has decreased and she is no longer
as happy as she was before the accident.

[19]        
Denise Rogers, a long-time acquaintance of the plaintiff, met up with
the plaintiff in 2006/2007. They would attend movies, go to lunch, and engage
in other activities. She described the plaintiff as a quiet but happy person,
taking swimming lessons before the accident. Shortly after the accident the
plaintiff called Ms. Rogers to ask for her help in the Surecopy business,
and Ms. Rogers worked for approximately five months for an average of two
days a week. She said her training was limited and the plaintiff’s instructions
to her were not clear. The plaintiff was unable to walk in a straight line at
the office and she would often trip over her own feet or step on something. She
was described as being tired or vacant with a glossed-over look in her eyes. Her
energy was low, she was cranky and “bitchy”. She also describes the plaintiff
as constantly confused, stating that she would forget what she was doing. Ms. Rogers
further states that she, with no prior experience in the copy business, could
do a job in five minutes where the same job would take the plaintiff 15 minutes.

[20]        
The plaintiff called a total of nine experts who filed reports and were
cross-examined. These include the following:

1.              
Dr. Nelson Collins, a psychiatrist who assessed the plaintiff on
May 10, 2013.

2.              
Dr. Neil Longridge, an expert in otolaryngology, who specializes in
evaluation of hearing loss and dizziness. He assessed the plaintiff on
September 3, 2013.

3.              
Ms. Dawn Chisholm, an occupational therapist who did a functional
capacity evaluation on the plaintiff on May 13 and 14, 2014.

4.              
Dr. Ann Pirolli, a registered clinical psychologist with expertise in
the diagnosis and treatment of mental disorder and mild traumatic brain injury.
She assessed the plaintiff on February 21 and March 17, 2014.

5.              
Dr. Bruce Blasberg, an expert in oral medicine, with expertise in
the diagnosis and natural and primary non-surgical management of oral, maxillofacial
and temporomandibular disease and disorder who assessed the plaintiff on March
27, 2014.

6.              
Mr. Curtis Peever, an expert in the field of labour economics.

7.              
Dr. Donald Cameron, a neurologist who assessed the plaintiff on
October 17, 2013.

8.              
Mr. Donald Spence, a business valuator.

9.              
Dr. Rosemary Nairn Stewart, an expert in physical medicine and
rehabilitation who examined the plaintiff on June 18, 2013.

[21]        
The defendant called the following experts who also filed reports.

1.              
Dr. Rehan Dost, a neurologist who assessed the plaintiff on July
25, 2014.

2.              
Dr. Kulwant Riar, an expert in psychiatry, who assessed the
plaintiff on July 20, 2014.

III.            
THE PLAINTIFF’S CLAIMS

[22]        
The plaintiff says that as a result of the motor vehicle accident she
has suffered from the following:

·                
Chronic dizziness and imbalance;

·                
Soft tissue injury to her neck and back;

·                
Jaw pain;

·                
Migraine headaches;

·                
Adjustment disorder/depression/anxiety;

·                
Post-traumatic stress disorder symptoms;

·                
Fatigue; and

·                
Mild traumatic brain injury (“MTBI”)/cognitive defects.

[23]        
The defence says that the plaintiff has suffered only the following
injuries as a result of the accident:

·                
Aggravation of pre-existing migraine headaches, which have now
resolved to pre-accident levels;

·                
Dizziness/loss of balance;

·                
Soft tissue injuries to the neck, which are significantly
resolved;

·                
Injury to right hip and lower back, which resolved in eight
months; and

·                
Adjustment disorder with anxiety depression leading to cognitive
difficulties.

[24]        
The defendant says that the plaintiff’s credibility and reliability are
important issues especially when it comes to detailing the history she has
provided to medical professionals, including to the Vernon Jubilee Hospital
emergency staff.

[25]        
In cross-examination, the plaintiff said on three occasions that she was
nauseous when she attended the Vernon Jubilee Hospital at 6:00 p.m. on the day
of the accident. The issue of being nauseous is an important complaint given
that both Drs. Cameron and Pirolli recorded that fact and have used that
as a basis for their opinion regarding MTBI, that is the immediate symptoms of
concussion. However, the complaints of nausea following the accident conflict
with the Vernon Jubilee Hospital records and the evidence of the attending
doctor, Dr. Friesen, which make it clear that the plaintiff did not
complain of nausea when she attended the emergency room. I accept the evidence
of Dr. Friesen.

[26]        
The plaintiff gave direct evidence concerning her temporomandibular joint
(“TMJ”) or jaw pain. She stated that she told Dr. Blasberg that she
suffered from right jaw pain beginning shortly after the accident on a
daily/nightly basis and this pain continued up to the present time. There is,
however, no note of jaw pain in records of the plaintiff’s family doctor prior to
December 2012, no record of any dental visits until September 2012, and no
report of complaints to her dentist on eight subsequent visits between
September 12 and December 13, 2012. I accept the fact that the plaintiff does
not have to provide the same litany of complaints to every medical professional.
Some complaints are more important than others and purely because the plaintiff
does not mention these complaints on a consistent basis should not automatically
adversely affect the weight to be given to her evidence. However, here there is
no evidence of complaints for several years after the accident.

[27]        
Save and except for the psychologist Dr. Pirolli, all medical
doctors were of the opinion that in the absence of either a loss of
consciousness or alteration in consciousness, the diagnosis of MTBI cannot be
made. This opinion was shared by Dr. Cameron, who the plaintiff says is
the best expert in this field. Consequently, the evidence of loss of
consciousness or alteration of consciousness is an important factor. When
cross-examined as to what she told Dr. Friesen in the Vernon Jubilee
Hospital emergency room, she said:

Q.        All right. So if somebody would have asked you
had you lost consciousness, you would have said at that point [in the ER] I
didn’t lose consciousness?

A.         I don’t know what I would have said.

Q.        Would you have said I don’t know or would you
have said I didn’t lose consciousness?

A.         I would have said
I don’t know if I did, because if I didn’t know, I would say I don’t know. I
wouldn’t say I didn’t lose consciousness if I don’t know.

[28]        
In his notes, Dr. Friesen wrote “no lack of consciousness”, which
clearly indicates that is what the plaintiff told Dr. Friesen. Dr. Friesen
confirmed the accuracy of his notes when he gave evidence.

[29]        
The subsequently prepared documents also indicate that the plaintiff did
not lose consciousness. There is no loss of consciousness or alteration of
consciousness mentioned in the notes prepared four days after the accident by Dr. Williams,
the plaintiff’s doctor. Similarly, the CL-22 form from ICBC which the plaintiff
signed does not disclose any loss of consciousness. The plaintiff’s evidence
was, however, that she told the witnessing adjuster about her possible loss of
consciousness but then agreed not to write that down on her CL-22 form. It is
admitted that the witnessing adjuster has been deceased for several years and
consequently could not give evidence to confirm or disprove this point. However,
in the circumstances I do not find the plaintiff’s evidence on this point to be
compelling.

[30]        
On May 10, 2013, the plaintiff was interviewed by Dr. Collins, who
was retained by the plaintiff. His detailed history of the accident concludes: 
“There was no disruption of consciousness.” He furthermore states, “There was
no altered level of consciousness nor was there interruption in normal memory
function. There was no anterograde or retrograde amnesia.”

[31]        
Dr. Stewart was also retained by the plaintiff and examined her on
June 18, 2013. Dr. Stewart notes:  “Ms. Reimer has full memory of the
motor vehicle collision of June 19, 2011”. She further states, “She did not
lose consciousness”. Dr. Stewart gives the following opinion:

In my opinion, it is unlikely
that Ms. Reimer sustained a concussion or injury to her brain at the time
of the collision. Though she hit her head, she did not lose consciousness and
she was able to negotiate a car rental to drive herself to hospital shortly
after the collision.

[32]        
In November 2013, when the plaintiff saw Dr. Cameron some two
years, five months post-accident, the plaintiff’s history seemed to change or
evolve. She now claims an inability to remember what she struck her head on and
she further claims that she now recalls a gap in her memory. Specifically, she
asserts that her vehicle must have been rolling down the road some 100-200 feet
from the accident site without her awareness of it.

[33]        
When shown a copy of Dr. Stewart’s report, the plaintiff had made a
note on the copy of Dr. Stewart’s report. The note reads as follows:

I told her I did not know if I did
or not:  she said something to the effect “Oh, you would definitely know.”

[34]        
Dr. Stewart was quite clear in her cross-examination that she would
not have recorded that section of the plaintiff’s history incorrectly and would
have probed further had the plaintiff actually said she did not know if she
lost consciousness.

IV.           
EXAGGERATION

[35]        
In 2012 the plaintiff worked by herself in the copy business for the
first three-quarters of the year and earned gross revenues of over $125,000 and
net income before taxes and amortization over $45,000. The $45,000 represents a
second best “net income” for a year-to-date in the plaintiff’s business. It was
only in 2008 that she had a greater net income of $47,427.16. Despite this,
however, the plaintiff told Dr. Collins in May 2013, “It’s felt really
devastating. It changed my whole life”, followed by “I couldn’t do my self-run
business. I was just sitting in the back doing nothing.”

[36]        
The plaintiff had been doing her own accounting with respect to her
business. Since the accident, on two occasions in 2013 and 2014 she also did a
small amount of accounting for a long-time client. Despite this, in November
2013 the plaintiff told Dr. Cameron about her accounting ability and Dr. Cameron
recorded, “She used to be a certified accountant years ago. She was doing her
own books at her business, and she cannot do the books since the accident.”

[37]        
The defendant also says that the plaintiff failed to follow-up on
medication and treatments that could mitigate her injuries. The plaintiff asserts
that those options were not used because of her lack of funds. I do not place a
great deal of weight on this evidence because the plaintiff made a choice to spend
money on Botox which was recommended by one of her doctors to help her
migraines, in addition to making her look younger. She says that her physical
appearance makes her feel much better than medication. Although purely
aesthetic treatment would not be a valid form of mitigation, in the
circumstances of this case I cannot disagree with her that Botox made her feel
better and consequently in my view was a reasonable attempt to mitigate her
damages.

[38]        
I accept that the plaintiff has had difficulties with her memory but her
memory difficulties do not explain all the inconsistencies in her evidence and
the documentary evidence, particularly the conflict between her testimony and the
evidence of the various doctors. I am very hesitant to give a great deal of
weight to the plaintiff’s evidence save and except where it has been
corroborated by other independent witnesses.

V.             
FINDINGS OF FACT REGARDING THE PLAINTIFF’S INJURIES

A.             
Chronic Dizziness and Imbalance

[39]        
On the day of the accident, the plaintiff experienced dizziness and
imbalance. Her symptoms are confirmed by Ms. Rogers who observed the
plaintiff working shortly after the accident. Ms. Chisholm, the
occupational therapist, observed the plaintiff losing her balance and correcting
herself without falling on several occasions during her evaluation.

[40]        
Dr. Longridge performed a battery of tests and determined there was
subjective evidence of the plaintiff’s complaints of dizziness and imbalance. He
found that there was “evidence of a vestibular deficit” and he postulates that
her balance issues are originating in the inner ear. It was his opinion that
the motor vehicle accident was the probable cause of her inner ear problems.

[41]        
In contrast, Dr. Dost was of the opinion that there were no
vestibular cerebellar abnormality on examination and that her symptoms were
subjective without any objective correlation and that her dizziness and
imbalance are related to psychological distress and migraine headaches and the
effect of her medication, mainly Topamax. Dr. Dost, however, did not have
the advantage of Dr. Longridge’s report and based on Dr. Longridge’s
report he now concedes that there is objective evidence of abnormality in the
plaintiff’s inner ear. He also accepts that the accident is the cause of the plaintiff’s
dizziness.

[42]        
I prefer the evidence of Dr. Longridge. He is an expert in this
particular field of otolaryngology. I further note that Dr. Dost was
combative and tended to be more of an advocate than an independent expert. Finally,
I note that Dr. Dost did acknowledge some of the evidence of vestibular
abnormality set out in Dr. Longridge’s report.

[43]        
Accordingly I find that the plaintiff likely suffers from some chronic
dizziness and imbalance issues as a result of the accident.

B.             
Soft Tissue Injuries

[44]        
The plaintiff experienced neck and shoulder pain and low back injuries
immediately after the accident. She attended at a physiotherapist for
approximately one year and her injuries for the most part have now been
resolved. However, she does still suffer intermediate pain in her neck at the
extremes of her range of motion or if she is suffering a headache.

[45]        
I accept the evidence of Dr. Stewart on this point and find that
these complaints were most likely the result of soft tissue injuries to the
plaintiff’s neck and low back in the accident. Although these issues have
largely been resolved, I find that the plaintiff is likely to continue to
suffer some neck pain in the future.

C.             
Jaw Pain

[46]        
The plaintiff recalls gritting her teeth as she braced herself for the
impact of the accident. She was assessed by Dr. Longridge on September 3,
2013 and he noted tenderness over her TMJ and recommended that she be assessed
by an oral medical specialist.

[47]        
Dr. Blasberg, an oral medical specialist, assessed the plaintiff on
March 27, 2014 and diagnosed her as suffering from a myofascial pain of her masticatory
(jaw) muscle with referral contributing to jaw pain, dental pain, ear pain, and
temple headaches.

[48]        
Dr. Blasberg also diagnosed the plaintiff as suffering from
arthralgia of the right TMJ which is characterized by pain and tenderness in
the joint capsule and/or synovial lining of the TMJ.

[49]        
Dr. Blasberg was of the view that her failure to immediately complain
about specific jaw pain is not unusual when there are injuries to the head. With
proper treatment as laid out in his report, he was of the view that “There were
no clinical findings identified that would prevent Ms. Reimer from fully
recovering from these jaw conditions. While in my opinion it is more likely
than not that Ms. Reimer will fully recover, she might not, continuing to
experience jaw pain, ear pain and headache requiring self-management and
professional advice and treatment.” I accept Dr. Blasberg’s evidence that
professional treatment would take between 12 and 24 months.

D.             
Migraine Headaches

[50]        
The plaintiff has a 20-year pre-accident history of migraine headaches
corresponding with her menstrual cycle. The headaches usually last for two to
three days per month but occasionally last up to five days a month. During that
period of time she also experiences photosensitivity, nausea, and sensitivity
to movement.

[51]        
It is acknowledged that the plaintiff had low grade headaches continuously
for three months after the accident. One year post-accident she had hormone
therapy which resulted in her having migraine headaches as a result of her
menstrual cycle once every four months. She still reports, however, that she
has migraine headaches two to three times per month that are not related to her
menstrual cycle.

[52]        
Dr. Dost accepts that the accident has exacerbated the plaintiff’s
migraine headaches. Dr. Cameron opined that the plaintiff is suffering
from post-traumatic migraine headaches and suggests that “she also is probably
suffering with intermixed musculoskeletal headaches following this accident as
a result of the head trauma that she sustained at the time of the accident”.

[53]        
I am satisfied that the plaintiff still suffers migraine headaches that were
a direct result of the accident. Although the plaintiff had a history of
migraine headaches prior to the accident, the evidence indicates that these
migraines increased in severity and frequency after the accident, and her
attempts to mitigate these migraines have not completely returned her to her
pre-accident condition.

E.             
Adjustment Disorder/Depression/Anxiety

[54]        
As a result of the accident the plaintiff has experienced a significant
degree of emotional distress, primarily due to her difficulties with her memory
and cognitive function. She feels constantly tired, grouchy, her life is
composed of work and sleep, she does not enjoy learning new skills, reading and
even participating with her family is sometimes difficult.

[55]        
I accept the evidence of Dr. Collins and Dr. Riar that she is
suffering from a mood disorder. The severity of her mental health systems, which
include low mood and anxiety, is such that Dr. Collins diagnosed her with
an adjustment disorder with mixed anxiety and depression.

[56]        
I am satisfied on the balance of probabilities that the plaintiff’s
emotional stress and mood disorder are a result of the accident. Given the
nature of her injuries and the related stress she experienced, it is more
likely than not that the accident caused or significantly exacerbated these
conditions.

F.             
Post-Traumatic Stress Disorder

[57]        
Dr. Pirolli states that:  “Current testing and interview results
further revealed that Ms. Reimer is suffering significant psychological
distress in the form of depression and symptoms of post-traumatic stress
disorder (PTSD)”. Dr. Pirolli is of the view that the PTSD symptoms were
caused by the accident. Her opinion is based on a specific questionnaire that
she administered called a Detailed Assessment of Posttraumatic Stress (DAPS)
questionnaire and in her report she states:

Mrs. Reimer’s responses to
the DAPS were considered valid. Her overall clinical profile was consistent
with the diagnosis of PTSD.

[58]        
Dr. Riar, however, in his report, says that the plaintiff did not
suffer any symptoms suggestive of PTSD. While on cross-examination he conceded
that that statement was not entirely correct and he did agree the plaintiff was
suffering from a number of symptoms of PTSD including nightmares, exaggerated
negative beliefs, markedly decreased interest in participating in activities,
distress over the loss of occupational function, concentration problems, and inability
to feel positive emotions.

[59]        
I accept some of the evidence of Dr. Pirolli. I find that the
plaintiff suffers a number of PTSD symptoms that negatively impact her quality
of life and that these symptoms were caused by the accident. However, I do not
find that the plaintiff suffers from PTSD. Given the number of cognitive
injuries asserted by the plaintiff, these symptoms are more appropriately
viewed as the effects of the other claimed injuries such as depression,
fatigue, cognitive deficits and so on.

G.            
Fatigue

[60]        
Both Ms. Rogers and the plaintiff’s daughter Kim Jackson confirmed
that the plaintiff suffers from lack of energy. This fatigue has had an impact
on the plaintiff’s life by, among other things, affecting her mood and her
interactions with her grandchildren.

[61]        
Ms. Chisholm administered a fatigue questionnaire and concluded
that the plaintiff presented with “severe fatigue”. Ms. Chisholm’s own
observations during her assessment of the plaintiff confirm that she exhibited
signs of fatigue by the second day of testing.

[62]        
I am satisfied that she has suffered fatigue as a result of the motor
vehicle accident.

H.             
Cognitive Deficits

[63]        
The evidence indicates that the plaintiff has numerous cognitive
difficulties. These include difficulties with memory, difficulties with
arithmetic and calculating change with her customers, forgetting to turn off
the stove, and forgetting what she read the day before. Dr. Cameron’s
evidence was that she could not subtract serial sevens in her head at all
despite repeated attempts and that she had lower than expected auditory memory
when there was no context. According to Ms. Chisolm the plaintiff scored
in the fifth percentile for complex mental arithmetic.

[64]        
The plaintiff says that there are three possible origins of the
plaintiff’s cognitive complaints:  MTBI, vestibular insult, or non-organic
psychological sequelea.

[65]        
In order to diagnose MTBI all doctors who provided evidence except Dr. Pirolli
were of the opinion that in the absence of either a loss of consciousness or an
alteration in consciousness, the diagnosis of MTBI cannot be made. I am
satisfied that there is no credible evidence that the plaintiff suffered a loss
of consciousness or an alteration in her consciousness. I reject the
plaintiff’s evidence in respect to her statements that suggest that she lost
consciousness immediately after the impact of the motor vehicle accident. This
is directly contradicted by other evidence, including the records of Dr. Friesen,
the physician at Vernon Jubilee Hospital who attended to the plaintiff
following the accident; the notes of Dr. Williams, the plaintiff’s doctor,
prepared shortly after the accident; and certain documents filed with ICBC
after the accident.

[66]        
Dr. Stewart and Dr. Collins opined that the most probable
explanation for the plaintiff’s current cognitive symptoms is that they result
from a vestibular insult. Dr. Stewart states her conclusions as follows:

In my opinion, the most
significant most disabling problem resulting from the motor vehicle collision
has been a probable injury to the vestibular mechanism and the inner ear
causing the dizziness/imbalance and fatigue. Individuals with dizziness often
report memory and other cognitive problems. Dizziness and imbalance are very
distracting and can limit the individual’s ability to pay attention to
information and tasks, resulting in memory problems and errors in thinking.

[67]        
Dr. Collins states:

This head injury – specifically
injury to Mrs. Reimer’s inner ear and balance system – most probably
significantly contributes to Mrs. Reimer’s pattern of mood and cognitive
symptoms. The experience of recurrent dizziness and impaired balance is a
significant psychological stressor contributing to psychological symptoms.

[68]        
Dr. Collins, who on June 24, 2013 opined that she suffered a mild
traumatic brain injury but in his report of April 27, 2015 he changed his
opinion. His summary of the plaintiff’s difficulties I find to be most helpful.
He states:

In summary, Ms. Reimer has had a complex cluster of
persisting physical, mood and cognitive symptoms since the accident.

Ms. Reimer’s symptoms most probably are related to
different yet interconnected areas of pathology, initiated by the motor vehicle
accident. She has an injury to the inner ear and balance system. There has been
persistent impairment of balance and hearing. She has developed a psychiatric Adjustment
Disorder. She has recurring headaches (which predate the accident but are
relevant to her psychological health and functioning). She is distressed by her
physical impairment. Her occupational functioning is impaired. These
interconnected physical, psychiatric and social factors are a more probable
explanation of her cognitive symptoms than possible traumatic brain injury,
given that there is limited evidence of concussion at the time of the accident.

The physical impairments and symptoms are interlinked with
the mood and cognitive symptoms. The impaired balance, hearing, and cognitive
function contribute to depressed and anxious mood.

The depressed and anxious mood
contribute to greater sensitivity to physical symptoms and reduced ability to
cope with the symptoms and impairments.

[69]        
After reviewing the conflicting evidence, I am satisfied that the
plaintiff suffers from some cognitive deficits due to the accident. These
symptoms have arisen as a result of a number of interconnected factors related
to the accident, including a likely injury to the plaintiff’s vestibular
mechanism and inner ear sustained in the accident, and the psychiatric and
social stressors connected to the accident, such as increased difficulty at
work due to dizziness and more debilitating migraines. Although these symptoms
might not have been totally caused by the accident, the plaintiff’s injuries
from the accident are significantly interconnected with these symptoms. Essentially,
I find that the plaintiff’s cognitive difficulties are caused by the cumulative
effect of her other injuries resulting from the accident, particularly
vestibular injury.

I.                
Prognosis and Summary of the Plaintiff’s Injuries

[70]        
As set out above, in general the evidence indicates that many of the
plaintiff’s physical disorders have resolved or are likely to resolve in the
future, such as her TMJ disorder and certain psychological issues. However,
there was a large amount of conflicting evidence on whether the plaintiff’s
cognitive issues were likely to resolve in the future.

[71]        
Dr. Longridge is of the view that as the plaintiff ages, “it is
probable that she is more likely to run into difficulties with balance and
unsteadiness than someone who has not had the insult to her balance system
which she has incurred. Potentially there is an increased likelihood of fall
and fracture and for this reason osteoporosis management has to be optimized.”

[72]        
Dr. Longridge also states, “My experience with imbalance is that if
it is present for two years, in my opinion, it is likely to be present on a long-term,
permanent basis”.

[73]        
Dr. Pirolli is of the view that in respect to her psychological
well-being, her prognosis is “guarded to fair”.

[74]        
Although Dr. Pirolli concludes that she has suffered from PTSD, I
am satisfied based on all the evidence that the plaintiff does not suffer from
PTSD and I reject Dr. Pirolli’s opinion in respect to that issue.

[75]        
In respect to the plaintiff’s cognitive abilities, Dr. Pirolli says
that her prognosis is guarded, stating that “[w]hile there may be some
improvement in cognition if her mood improves, there is no way of telling at
this time whether some of her cognitive difficulties will be permanent”.

[76]        
Dr. Stewart is of the view that, “At the time I saw Ms. Reimer
it had been two years since her injury in the motor vehicle collision. Given
the duration of her symptoms it is likely that she will continue to experience
right neck pain, increased frequency of migraine headaches, and dizziness,
imbalance, fatigue and related cognitive problems in the future because of her
injuries in the collision.”

[77]        
Dr. Riar states, “I believe that she will achieve remission from
her psychiatric symptoms in future, but I cannot say how long it will take with
or without treatment. Once her psychiatric treatments are under control or in
remission, there will be significant resolution of her other cognitive and
physical complaints.”

[78]        
I do not accept that opinion from Dr. Riar, in part because he did
not have the report of Dr. Longridge available when he made that statement
and because he altered his opinion somewhat upon having the benefit of reading Dr. Longridge’s
report. He defers to Dr. Longridge’s opinion.

[79]        
Dr. Collins was of the view that counselling and pharmacological
intervention with a standard treatment for adjustment disorder and that
improvement was possible with this type of treatment.

[80]        
After considering all the evidence, I find that the plaintiff’s
cognitive issues are likely to be chronic conditions of a long-term and
possibly indefinite duration. The majority of evidence agreed on key aspects of
her cognitive conditions and I reject the evidence indicating that treatment
would be likely to substantially relieve her conditions in the near or medium-term
future.

[81]        
In summary, I find that the plaintiff’s prospects for long-term recovery
are mixed. I am satisfied that the plaintiff’s TMJ problems and remaining neck
soft tissue injuries will resolve with proper treatment. I am also satisfied
that her psychological difficulties including mood disorder, fatigue and
migraine headaches will be improved over the long run with proper counselling
and pharmacological assistance. However, the evidence indicates that for her
balance, dizziness and memory difficulties, the outlook is poor.

VI.           
DONALD M. SPENCE’S REPORT IN RESPECT TO PAST AND FUTURE LOSSES
AND VALUATION OF THE LOSS OF THE PLAINTIFF’S BUSINESS

[82]        
Mr. Spence, a business evaluator, filed a report and gave evidence
concerning the plaintiff’s financial losses. However, his evidence is of
limited assistance because of several problematic assumptions.

[83]        
Several of his assumed facts seem to be based on unreliable statements
made by the plaintiff. He states that Ms. Reimer, as a result of the motor
vehicle accident “was unable to properly train the replacement employee and the
employee was undercharging for services which caused the Business to lose
revenue. In addition, Ms. Reimer advises us that the Business also lost
revenue as a result of Ms. Rogers occasionally forgetting to fill orders.”
He also assumes that the average annual revenue that was generated by the
business prior to the motor vehicle accident had to be adjusted for inflation.

[84]        
In contrast, the evidence at trial indicates that the only evidence of Ms. Rogers
undercharging occurred on one occasion, and this uncorroborated evidence was
provided solely by the plaintiff. If this event occurred, it was never brought
to the attention of Ms. Rogers, and the documentary evidence to
substantiate this event would have been easily accessible but was never
produced. The statement that Ms. Rogers occasionally forgot to fill orders
also lacks any documentary evidence. Surely there would be some evidence of
customer complaints or cancelling orders but nothing was produced. This lack of
documentary evidence was considered in the case of Yannacopoulos v. Cronk,
2015 BCSC 1154. There a claim for past loss of income was rejected for lack of
documentary evidence (at paras. 88-101).

[85]        
Similarly, Mr. Spence’s statements concerning the plaintiff’s
business requiring a loss of income adjustment to account for inflation is not
sustainable because the plaintiff has only recently, according to the
plaintiff’s submission, increased her cost of services. Applying the business’
current, higher rate retroactively would compensate her for lost profits that
she would not have charged for.

[86]        
Mr. Spence suggests that past loss of income is $69,100 and loss of
capital value between $50,000 and $75,000. Based on the calculations of Mr. Peever,
the plaintiff submits that the future loss of income is $157,296.

[87]        
Mr. Spence failed to give proper weight to the downward trend in
revenues from 2008:  $141,000; 2009:  $132,000; 2010:  $137,000; and 2011: 
$119,000. Significantly, in 2011 the plaintiff worked the first six months of
the year prior to the accident by herself and was on track to earn $115,000,
and had the assistance of Ms. Rogers for the last six months. This
evidence clearly indicates that the business revenues had been on a downward trend
in any event. Mr. Spence failed to take that trend into account, or to
consider the possibility that the decrease in revenue might be consistent with
market forces or the general deterioration of the plaintiff’s business. I
therefore place very little weight on the evidence of Mr. Spence.

VII.          
DISCUSSION OF DAMAGES

A.             
Non-pecuniary Damages

[88]        
I am satisfied that the plaintiff has had a significant change in her
life from being a positive, intelligent individual that enjoyed family and
friends to an individual whose life is now all work and mostly sleep with the
inability to enjoy reading or going to movies and playing with her
grandchildren and generally socializing. I have taken into account the fact
that she has to work longer hours in order to keep her business going and that
she no longer has the same enjoyment of working in and around her home and
being independent. I have considered the principles set out in Stapley v.
Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19. The plaintiff says that this
case is almost identical to Hill v. Murray, 2014 BCSC 1528, where the
award was $120,000 or $120,819 adjusted for inflation. The Hill case,
however, dealt with an individual that was in her 30s and suffered from MTBI. The
plaintiff also refers to Williamson v. Suna, 2009 BCSC 576. There, the
plaintiff was also younger, 38 years of age, suffered cognitive defects,
personality shift and the disruptive family life and $115,000 was awarded,
adjusted for inflation $121,718.

[89]        
The defendant refers to:

·                
Fillmore v. McKay, 2010 BCSC 1401, where there was an
award for non-pecuniary damages of $75,000.

·                
Sekhon v. Nguyen, 2013 BCSC 281, non-pecuniary damages of
$45,000.

·                
Dakin v. Roth, 2013 BCSC 8, where non-pecuniary damages
were awarded in the amount of $45,000.

·                
Hardychuk v. Johnstone, 2012 BCSC 1359, with non-pecuniary
damages of $60,000.

[90]        
I am satisfied that the proper award for non-pecuniary damages in this
case is $100,000.

B.             
Past Loss of Income/Past Loss of Capacity to Work

[91]        
The plaintiff claims the sum of $80,000 under this head of damages. According
to Mr. Spence the past income loss for the plaintiff is $69,100 and that
includes the additional labour expense of some $26,300.

[92]        
Mr. Spence’s report calculates the past loss as follows:

To calculate the Income Loss, we
totaled the loss of adjusted gross profit and the additional labour expense as
estimated above during the Loss Period. We then deducted our estimate of the
income taxes payable on the pre-tax income loss as calculated to arrive at our
estimate of the Income Loss

He calculated $69,100.

[93]        
The plaintiff refers to Ibbitson v. Cooper, 2012 BCCA 249. In
that case the plaintiff was a heli-faller and could no longer continue to work
in that field because of the accident. He commenced work as a heavy equipment
operator and was successful in replacing his income but it required him to work
longer shifts at a lower hourly rate.

[94]        
As a heli-logger, he worked 6.5 hours and earned between $455 and $545
per day. As a heavy equipment operator he worked 12-hour shifts and made $32.20
per hour.

[95]        
The Court of Appeal in Ibbitson quotes with approval Smith J.A.’s
comments in Rowe v. Bobell Express Ltd., 2005 BCCA 141 at paras. 28,
31, 251 D.L.R. (4th) 290, who relies in part on the Chief Justice in M.B. v.
British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477:

[28]      On the question of the appropriate valuation of the
lost asset, the Chief Justice turned to academic commentary:

49        As Cooper-Stephenson
notes, supra, [Kenneth D. Cooper-Stephenson, Personal Injury Damages
in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1996)] at p. 138,
damages under this head are universally quantified on the basis of what the
plaintiff would have earned, had the injury not occurred.

As far as concerns lost income, the
courts fluctuate between the notion of “loss of earnings” and “loss of earning
capacity”, not for the most part intending any aspect of the substance of an
assessment to depend on the particular wording, since damages are universally
quantified on the basis of what the plaintiff would have, not what he or
she could have, earned absent the injury.

[31]      Evidence of this value may take many forms. As was
said by Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada,
2nd ed. (Scarborough, Ont.: Carswell, 1996) at 205-06,

… The essence of the task under
this head of damages is to award compensation for any pecuniary loss which will
result from an inability to work. “Loss of the value of work” is the substance
of the claim – loss of the value of any work the plaintiff would have done but
for the accident but now will be unable to do. The loss framed in this way
may be measured in different ways. Sometimes it will be measured by
reference to the actual earnings the plaintiff would have received;
sometimes by a replacement cost evaluation of tasks which the plaintiff
will now be unable to perform; sometimes by an assessment of reduced company
profits; and sometimes by the amount of secondary income lost, such as shared
family income.

[Smith J.A.’s underscoring; other
emphasis in original.]

[96]        
Here, the plaintiff did not take a different job at a reduced income. She
continued to work as she had before but hired part-time help. Ms. Reimer worked
longer hours in the evening and on weekends. Ms. Rogers testified that it
took the plaintiff sometimes 15 minutes to do a job she could do in 5 minutes. Ms. Rogers
started working a day after the accident and worked one to two days per week,
sometimes full-time, sometimes part-time. The plaintiff claims Ms. Rogers
underbilled a customer in November 2011 but there is no documentary evidence of
this occurrence nor that it occurred more than once. The plaintiff also says
that there was non-fulfillment of orders by her but again there is no
documentary evidence which would seem to be readily available to the plaintiff.
There is, in fact, no evidence that the plaintiff lost any business. Instead,
the evidence seems to be from the income statements that the revenue pattern shows
a general decrease in revenue beginning in 2008:

2006:  seven months, $84,752

2007:  $132,680

2008:  $141,062

2009:  $132,656

2010:  $136,788

2011:  $118,732

2012:  $125,691

2013:  $122,118

2014:  $125,267

[97]        
For the first six months of 2011 when the plaintiff worked alone in the
business, she was on track to earn revenues between $115,000 and $120,000. In
fact, she made $118,732 with the assistance of Ms. Rogers for the last six
months of the year. In 2012, she had $45,311 in revenue and that was the second
highest revenue she had. Only in 2008 did she earn a net income before taxes
and amortization of more than that and that was $47,427.

[98]        
I appreciate the plaintiff has suffered having to work longer hours but
that she has been compensated in non-pecuniary damages. I estimate that the
proper award for loss of past income/capacity to work is $30,000.

C.             
Future Loss of Income/Loss of Capital-Earning Capacity

[99]        
The Court of Appeal in Perren v. Lalari, 2010 BCCA 140 at para. 12,
317 D.L.R. (4th) 729, states:

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

[100]    
At para. 32, the Court of Appeal states:

A plaintiff may indeed be able to
prove that there is a substantial possibility of a future loss of income
despite having returned to his or her usual employment. That was the case in
both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss.

[101]     There is
no suggestion by the plaintiff that she will return to her former occupation as
a bookkeeper and utilize her CGA. She has given up her CGA, done work for only
one client on two occasions post-accident, and continues to do her own
bookkeeping. Her future loss is that she is going to need some part-time help
in order for her to continue to operate her business as she did prior to the
accident.

[102]     Mr. Spence’s
report uses her past income loss which he used as a reference for the
calculation of the plaintiff’s loss of future earning capacity. He says that
the present value of the plaintiff’s loss to age 65 is $132,870, or to age 67
in the amount of $157,296.

[103]     For
reasons already stated I do not accept Mr. Spence’s calculation of past
income loss and his calculation of future income loss to the plaintiff is based
on his past income loss and therefore his analysis is flawed.

[104]     I am
satisfied that the plaintiff will have to hire part-time help, that the part-time
help may decrease in the future, that she will most likely retire at age 67, and
that the counselling and other medical interventions that she is entitled to
will improve her ability to work. I am satisfied an appropriate sum for the
loss of a capital-earning is $60,000.

D.             
Loss of Business Value

[105]     I do not
accept that there is a loss of a business value as the plaintiff has not lost
any business due to the motor vehicle accident as compared to market forces
having an effect on lower gross sales. I therefore award nothing for the loss
of business value.

E.             
Future Care Costs

[106]     The
purpose of award for costs of future care is to restore, as best as possible
with a monetary award, the injured person to the position she would have been
in “had the accident not occurred” (Gignac v. Insurance Corporation of
British Columbia, 2012 BCCA 351 at para. 29, 35 B.C.L.R. (5th)
333). In addition, the claims must be reasonable: Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.) at 84.

[107]     The
plaintiff claims the sum of $99,873.61 for future cost of care plus a claim for
loss of housekeeping capacity of $10,000.

[108]     The claim
for seasonable housecleaning, however, in my view is not reasonable. The
suggestion that the plaintiff would be doing her own seasonable housekeeping at
80 years of age but for the accident is not reasonable in my view. I am satisfied
that for the next seven years seasonable housecleaning or home maintenance in
the amount of $7,000 is reasonable. In respect to snow removal and lawn care,
this has always been done by the plaintiff. There is no reason why she cannot
continue to do so. She has had to have help on two occasions last January to
help with snow removal. That in my view should be covered under seasonable
housecleaning.

[109]     All the
remaining future costs of care have been recommended by medical professionals
including the occupational therapist and all in my view are reasonable. For
future costs of care I award the sum of $84,000.

F.             
Loss of Housekeeping Capacity

[110]     This has
been factored in under non-pecuniary damages.

G.            
Special Damages

[111]     The
plaintiff has a claim of $8,044.93. The plaintiff claims for a rec centre
swimming pass/lessons but that was something that she did prior to the accident
and therefore is not a valid claim. The balance of special damages are
appropriate. Costs can be spoken to if necessary.

The
Honourable Mr. Justice F.W. Cole