IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151125

Docket: M124909

Registry:
New Westminster

Between:

Jane Tourand

Plaintiff

And

Patricia Ivy
Charette

Defendant

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

Introduction

[1]            
On October 15, 2009, the plaintiff, Ms. Tourand, was in her car,
stopped at a red light, when her car was struck from the rear by a car being
driven by the defendant, Ms. Charette. This caused the plaintiff’s vehicle
to be pushed forward into the rear of the car in front of her (“the Accident”).

[2]            
The defendant admits that her negligence was the cause of the Accident.

[3]            
The plaintiff claims damages under the following heads of damages:

(a)      non-pecuniary damages;

(b)      past loss of income
earning opportunity;

(c)      future loss of income
earning capacity;

(d)      cost of future care and
housekeeping services; and

(e)      special damages.

[4]            
The defendant asserts that the pain the plaintiff has experienced since
the Accident is primarily due to stressors in the plaintiff’s life and her
failure to follow the recommendations of medical experts. The defendant submits
that the plaintiff’s losses as a result of the Accident are very modest. She
denies that the plaintiff suffered any past loss of income earning opportunity
or capacity because it is unlikely that but for the Accident the plaintiff
would have engaged in any employment. The defendant also submits that the plaintiff
has a significant residual earning capacity as compared to her pre-Accident
earning capacity and that her earning capacity has not been materially affected
by the Accident. The defendant denies that the plaintiff requires or is
entitled to the cost of housekeeping services.

[5]            
The defendant also submits that the plaintiff’s symptoms and her losses
would have been lessened if she had accepted and acted upon medical advice with
respect to treatments and therapies, and submits that her damages should be
reduced due to her failure to mitigate.

The Accident and immediate effects

[6]            
Ms. Tourand was seated in the driver’s seat of her motor vehicle,
stopped at a red light at an intersection in Maple Ridge, British Columbia,
when without warning, the defendant struck her vehicle from the rear, pushing
her vehicle into the vehicle that was in front of her. Ms. Tourand was
with her young son, whom she was driving to an orthodontist appointment. Ms. Tourand
was wearing her seatbelt and had her head rest properly adjusted.

[7]            
Ms. Tourand called her husband, who was working nearby. He came to
the scene as Ms. Tourand and their son were being loaded into an ambulance
to be taken to the hospital.

[8]            
Mr. Tourand was able to drive the car to a nearby automotive repair
shop. There is no expert engineering evidence with respect to the force of the
collision, but it was severe enough that the metal bumper assembly under the
plastic bumper covering was damaged. The damage to the vehicle cost
approximately $6,500 to repair.

Plaintiff’s background

[9]            
Ms. Tourand was born in October 1967. She was, therefore, 42 years
old at the date of the Accident. She is now 48 years old. She grew up in the
Lower Mainland of British Columbia. She completed grade 10 in a vocational
program when she was 18.

[10]        
After leaving school, Ms. Tourand worked for a while at a hydroponics
facility that grew alfalfa sprouts. She travelled in Europe for a time. Upon
her return to Canada, she worked in retail sales for a time and then for an
insurance company for a couple of years before getting married in June 1990 and
starting a family. Their first child, Chantelle, was born in December 1990.
Their second child, Joshua was born in November 1991; and their third child, Cole,
was born in October 1995.

[11]        
Ms. Tourand, her husband and children moved to Maple Ridge in 1991
and have lived in that community ever since.

[12]        
Mr. Tourand opened a computer store with his father and his uncle in
about 1996. The income from the computer store has been and remains the
principal source of the family’s income.

Plaintiff’s employment prior to the Accident

[13]        
Ms. Tourand was a homemaker and did not work outside the home for
about ten years, from 1990 to 2000. She concentrated on raising the three
children. In 2000, Ms. Tourand began helping out at the computer store on
a part-time basis while the children were in school. Her duties included
picking up parts for the store, as well as cleaning. She worked 20-30 hours per
week.

[14]        
In 2000, on the advice of their accountant, Mr. Tourand began to
split his income from the store, so that part of it was declared as income
earned by Ms. Tourand. The income spitting continued until 2013, although Ms. Tourand
ceased providing any services for the store in 2003.

[15]        
Ms. Tourand declared earnings from the computer store in the amount
of $28,500 for the period of 2005 to 2009. In the years from 2010 to 2012, the
amount of her declared income from the computer store was increased to $30,000
per year.

[16]        
In late 2003, Ms. Tourand and her husband decided to get into the
business of operating Herbal Magic franchise outlets (“Herbal Magic”). Herbal
Magic sells weight loss programs, counselling services and products to people
seeking to lose weight and become fitter, principally, I gather, through better
nutrition.

[17]        
Their original plan was to open 10 Herbal Magic stores. They opened the
first store in April 2004 in Mission, British Columbia. Ms. Tourand looked
after the hiring and training of staff, ordering of product, as well as participating
in the actually selling of programs and products. Mr. Tourand made the
initial investment, around $250,000, and took care of all financial matters in
connection with the operation of the franchises. Ms. Tourand worked at the
store from Monday to Saturday.

[18]        
In early 2006, the Tourands took over another Herbal Magic
franchise, this one in White Rock, B.C. Shortly thereafter, they opened a third
Herbal Magic store in Port Coquitlam, B.C.

[19]        
Ms. Tourand never drew a salary for her efforts at the Herbal Magic
stores, although they leased and expensed a vehicle through the franchises. The
Tourands’ investment in the Herbal Magic franchises never succeeded
financially. While one of the franchises did better than the other, overall
they were never able to draw an income from the business. In 2008, they sold
the Mission franchise; and in 2009, they returned the White Rock and Port
Coquitlam franchises to the franchisor.

[20]        
In the spring of 2009, Ms. Tourand was looking for another
opportunity where she might earn an income. She saw a teeth whitening machine
at a trade show and thought that she might operate a home business, so she
bought the machine and teeth whitening products. However, that endeavor did not
prove successful.

[21]        
In September 2009, Ms. Tourand engaged the services of a private
employment agency to investigate opportunities for employment. The agency
worked in conjunction with Douglas College to deliver a program called the Career
Builder Plus Program – Group, which was designed to assist clients to,
amongst other things, develop plans to research and explore employment and
prepare resumes.

[22]        
By October 9, 2009, Ms. Tourand had completed a number of modules
of the program. She had begun to prepare, but had not completed a resume for
job searches. The draft resume stated her objective as:

-To further gain more experience
in my Education, to meet the need of the Employer. -To gain a Job that suits
the needs of the potential Employer. -To obtain full or part time employment.

[23]        
The draft resume stated her job preference as full time or part-time
without any further specificity. Ms. Tourand testified that she had
intended to apply for retail or office work and perhaps upgrade her education.

[24]        
Before she could pursue employment opportunities any further, Ms. Tourand
was involved in the Accident.

Plaintiff’s health and activities prior to the Accident

[25]        
Ms. Tourand described herself prior to the Accident as a very
active person who engaged in hiking, riding with her husband on his motorcycle,
walking, camping, going to the gym, karate and driving her children to their
numerous activities. She also enjoyed dancing. Ms. Tourand acquired a
black belt in karate in 2002. She ceased being involved in karate in about 2002
or 2003 because she was too busy with other activities.

[26]        
When she went camping with her family, Ms. Tourand enjoyed riding
dirt bikes and quads.

[27]        
Ms. Tourand was the primary housekeeper. Mr. Tourand’s role
was to earn the family income, while she looked after the children and the
home. Mr. Tourand did do yard work around the home.

[28]        
Ms. Tourand had a number of accidents before the October 2009 Accident.

[29]        
Ms. Tourand was in an accident in 1990 or 1991, when the car in
which she was riding rolled down a cliff. She said the injuries from that
accident cleared up within a month.

[30]        
Ms. Tourand was injured in a car accident in or about 2000. As she
described it, she jarred her right shoulder and had a bit of a sore neck and
some headaches. She said she had headaches for two to four weeks, neck pain for
a couple of months, and right shoulder pain on and off for a few years. She
said she was still having shoulder flare ups in 2009, for which she sought
chiropractic treatments, but for the most part her shoulder was not bothering
her.

[31]        
In 2002, Ms. Tourand was side-swiped by another car but says that
she suffered no injuries.

[32]        
In 2003, Ms. Tourand backed into another car as she was reversing
out of a parking lot. She said this accident caused a flare-up of her shoulder
and some back pain for which she sought some chiropractic and massage
treatments. She rear ended another car, but she said she was not injured.

[33]        
In 2004, Ms. Tourand was involved in a car accident that resulted
in an injury to or aggravation of her right shoulder.

[34]        
Ms. Tourand was involved in two other minor motor vehicle accidents;
one in 2007 and one in 2008, but said she did not suffer any injuries in either
accident.

[35]        
With regard to medical treatments prior to the Accident, from 2001
through to 2005, Ms. Tourand saw her chiropractor, Dr. DuBois, for
treatments for neck, shoulder and back pain. During this time, she saw Dr. DuBois
a total of approximately 65 times for shoulder neck and back treatments. Ms. Tourand
testified that she regularly received chiropractic treatments when she was
involved with karate, for maintenance of her shoulder and back.

[36]        
Ms. Tourand also received massage treatments for shoulder pain
during the period from November 2008 until April 2009.

[37]        
In May 2009, Ms. Tourand went to see another chiropractor, Dr. Bucknell.
At that time, she complained to him of right shoulder pain and low back pain.

Plaintiff’s injuries, symptoms and treatment

[38]        
Immediately after the 2009 Accident, Ms. Tourand felt dazed and
soon experienced severe pain in her right knee. At that time, she was more
concerned about her son, who was distressed and complaining of neck pain, than
about herself. By the time Mr. Tourand picked up Ms. Tourand and their
son up at the hospital, Ms. Tourand was feeling severe pain in the neck
and back. The following day, she began experiencing severe headaches.

[39]        
Ms. Tourand gave the following summary of her pain and its effect
on her life as a result of the Accident:

(a)      Neck –
pain and stiffness in her neck, particularly on the right side of her neck and
trapezius muscles, associated with headaches. As of the date of trial, she
assessed her neck pain as only about 40% improved.

(b)      Headaches
– daily at first, which tapered off over the first nine months to two or three
times per month and have remained at that frequency since then.

(c)      Back – Ms. Tourand
describes almost constant left-sided low back pain with shooting pain down her buttocks
and left leg. She says the pain has improved only slightly over time. She
describes difficulty in walking for any distance, doing housework and sitting
on hard surfaces.

(d)      Sleep
disturbance – Ms. Tourand complains that she cannot get a full night’s
sleep like she did before the Accident. She wakes frequently because of the
pain.

(e)      Mood – Ms. Tourand
testified that she became quite depressed, to the point that, at one time, she
felt suicidal. For a period of two or three years, she tried to self-medicate
by drinking more than she should. She testified that her emotional state has
improved somewhat because she has learned to accept what she can do and what
she cannot do.

(f)       Weight
– Ms. Tourand said that she gained quite a bit of weight due to her
inactivity, going from about 145 pounds to as high as 186 pounds. She now
weighs approximately 179 pounds.

(g)      Marriage
and sex life – Ms. Tourand testified that the Accident impacted her
marriage because she could not be as involved with her husband in physical
activities, including sports and walking. However, she believes that her
marriage is strong and does not believe it is now in jeopardy. She said the
frequency of her sexual activity with her husband has greatly diminished.

(h)      Household
work and social activities – Ms. Tourand complains that she is no longer
able to work around the house as she used to. Vacuuming is particularly
difficult for her and she has to approach household tasks in smaller bites. She
says that she is no longer able to enjoy outings with her girlfriends as often
as she used to before the Accident.

[40]        
Ms. Tourand has participated in a number of different medical
treatments since the Accident, including: massage therapy, chiropractic
treatments, physiotherapy, prolotherapy and nerve ablation treatments.

[41]        
In particular, she received numerous chiropractic treatments and massage
treatments, apparently without any lasting benefit. In June 2010, Ms. Tourand
began receiving physiotherapy treatments from Ms. A. Trip, at Golden Ears
Orthopaedic and Sports Physiotherapist Corporation, with respect to her neck
and low back. Ms. Tourand attended a total of 55 physiotherapy sessions
with Ms. Trip. Following this course of physiotherapy which ended in
September 2011, Ms. Tourand continued with stretching and other exercises
at home as recommended by Ms. Trip, but did not attend the gym as
suggested.

Plaintiff’s employment since the Accident

[42]        
During the winter following the Accident, Ms. Tourand became
involved selling products for a company called MonaVie, but she did not make
any money from that endeavour.

[43]        
On August 16, 2010, Ms. Tourand began work as a manager with
U-Weight Loss Clinic, a weight loss clinic in Maple Ridge. She quit that job on
September 1, 2010. She earned a total of $1,932.12 from that employment.

[44]        
Ms. Tourand next found employment on March 17, 2011, as a
receptionist at an automotive repair facility/muffler shop owned by a friend of
Mr. Tourand. She did bookkeeping-type functions, as well as cleaning. Ms. Tourand
testified that she was in a lot of pain by the end of each day. Eventually, she
was laid off on October 31, 2011 and applied for medical EI. The record of
employment issued by the employer indicates the reason for the layoff was
“injury or illness”. Ms. Tourand earned a total of $10,736.92 from her
employment at the muffler shop.

[45]        
Ms. Tourand has not been employed since October 2011.

Other circumstances in Ms. Tourand’s life following the Accident

[46]        
Ms. Tourand has experienced challenges with her children, both
before and after the motor vehicle Accident.

[47]        
Around the time of the accident, her eldest son, Josh, was abusing drugs
and was moving between the Tourands’ home and his grandmother’s home.

[48]        
In 2010, Josh was charged with several offences. Ms. Tourand ended
up taking him to the courthouse to turn himself in, after a warrant was issued
for his arrest in the summer of 2010. Josh was convicted of a number of
offences and, in January 2012, he received a conditional sentence with
probation. Josh was charged with breaches of recognizance and of the conditional
sentence, resulting in a number of additional court appearances. Ms. Tourand
attended court in support of her son on numerous occasions, between the summer of
2010 and the summer of 2013.

[49]        
In addition to his difficulties with the law, Josh had serious mental
health problems. In the spring of 2012, he was suicidal and was admitted to a
psychiatric ward for six weeks. In June 2013, Josh was diagnosed with
schizophrenia.

[50]        
Josh was in a rehabilitation program for drug and alcohol abuse between October
2013 and January 2014.

[51]        
In addition to these difficulties, Josh has been involved in a number of
car accidents, including one in October 2012, in which he apparently sustained
a brain injury and another in December 2012.

[52]        
Ms. Tourand’s daughter experienced relationship problems with the
father of her child and moved into the Tourands’ home with the child, in
January 2012. Ms. Tourand provided daycare in her home for the child for a
period of about seven or eight months, but said that she had to give it up
because of her ongoing symptoms. Thereafter, Ms. Tourand’s daughter and
grandchild continued to live with the Tourands, but the child was placed in
daycare elsewhere. Ms. Tourand’s daughter moved out with the child in
September 2012 and moved back in February 2014, until June 2014.

[53]        
Ms. Tourand’s younger son, Cole, has also been in a number of car
accidents, in addition to the Accident that is the subject of this litigation.
In September 2014, Cole was involved in a very bad accident and spent four weeks
in the Intensive Care Unit of Royal Inland Hospital in Kamloops. When Cole was
released from hospital, he came home and Ms. Tourand has been caring for
him except for a few months when he lived away from home. Ms. Tourand
expects that Cole will remain living at home for the foreseeable future. In
addition to supporting him with care at home, Ms. Tourand takes Cole to
his medical appointments.

Review of plaintiff’s medical, functional capacity and vocational evidence

Dr. K. Sommi – General Practitioner

[54]        
Ms. Tourand called her family doctor, Dr. K. Sommi, not as an
expert witness to give opinion evidence, but rather as her treating physician,
to testify as to her observations and the medical treatment that he provided.

[55]        
Dr. Sommi practices in a walk-in clinic. He has been Ms. Tourand’s
family physician since 2003, when Ms. Tourand came to see him because of
abdominal problems, which were eventually diagnosed in or about 2008, as due to
diverticulitis. Dr. Sommi saw Ms. Tourand concerning the Accident commencing
in October 2009. He prescribed Robaxacet, Flexeril, and Tramacet. Over the
course of his care, Dr. Sommi, referred Ms. Tourand for massage
therapy, chiropractic treatments, physiotherapy, kinesiology and prolotherapy.
He also referred her to a psychologist, but Ms. Tourand did not follow up
with that referral.

[56]        
In November 2010, Dr. Sommi recommended to Ms. Tourand that
she lose weight and become more active, including swimming and attending yoga
therapy. Ms. Tourand did not carry through with that advice in a
consistent way.

[57]        
When Ms. Tourand did not seem to be making any significant
improvement, Dr. Sommi referred her to the Surrey Pain Clinic.

[58]        
Dr. Sommi described Ms. Tourand as a patient who is reluctant
to take medication. He described her as being frustrated with her lack of
medical improvement, but did not think that she was particularly depressed.

[59]        
In cross-examination, Dr. Sommi testified that he was aware that Ms. Tourand
had been involved in several earlier motor vehicle accidents, but understood
that she had recovered from all of them.

[60]        
Dr. Sommi confirmed that on March 20, 2010, Ms. Tourand told him
that she had been 50% better for six weeks, then worse for three weeks; and at
that time, was “2/7” better. Ms. Tourand told him that her lower back was
50% better. On that date, Dr. Sommi found normal range of motion. On May
4, 2009, Ms. Tourand reported to Dr. Sommi that she was 50% better.

[61]        
On September 17, 2010, Dr. Sommi made a notation in his clinical
records that stated “50% better”.

[62]        
Dr. Sommi testified in cross-examination that he was not aware of
any medical complaints prior the Accident, with the exception of abdominal pain
and was not aware that Ms. Tourand had massage and chiropractic treatments
prior to the Accident. However, when re-examined, he confirmed that in a CL19 Medical
Report prepared for ICBC, he referred to an aggravation of old right shoulder
trauma.

Dr. G. Hirsh – Physical Medicine and Rehabilitation

[63]        
Dr. G. Hirsh, a specialist in physical and rehabilitation medicine
provided a report dated March 30, 2012, based on his assessment of Ms. Tourand
on that date. In the Opinion section of his report (at pp. 7-11), Dr. Hirsch
made the following comments:

Ms. Tourand injured her right shoulder in a remote motor
vehicle accident. … It is my opinion that Ms. Tourand’s pre-existing right
shoulder condition was not affected adversely by the subject motor vehicle
accident. Resultant activity limitations are mild and primarily relate to
sustained or repetitive reaching with her right arm to or above shoulder
height.

Based on today’s obtained history and review of the forwarded
clinical records, Ms. Tourand sustained injuries to her cervical spine in
the subject motor vehicle accident. These probably involved soft tissue
structures such as muscles, tendons and ligaments attaching to the neck.

There is no historical, clinical or radiographic evidence
that Ms. Tourand incurred more significant structural damage to her neck such
as a fracture, disc protrusion/herniation or ligamentous injuries resulting in
spinal instability.

With respect to future management of Ms. Tourand’s
reported neck and shoulder girdle pain, I recommend a structured exercise
program, which should include core neck strengthening exercises as well as neck
stretching exercises.

I would not be in favour of prolotherapy or additional
passive treatments such as chiropractic spinal adjustments or massage. However,
consideration should be given to trigger point injections. Trigger point
injections should be performed by a physician who is well acquainted with this
treatment modality….

Based on today’s obtained history and review of the forwarded
clinical records, Ms. Tourand sustained injuries to her lumbosacral spine
in the subject motor vehicle accident. These probably involved soft tissue
structures such as muscle, tendons and ligaments.

…Today’s clinical assessment revealed findings indicative of
left L5 nerve root compromise. Hence, I would consider it more likely than not
that the left-sided L4-5 disc protrusion is clinically significant.

The MRI scan showed multilevel degenerative changes in the
lumbar spine, most pronounced at L4-5. These degenerative changes undoubtedly
predated the subject motor vehicle accident. However, on balance of all the
evidence, it is my opinion that the radiographically-documented left L4-5 disc
protrusion is probably at least to some extent causally related to this motor
vehicle accident. It is possible that Ms. Tourand had a small left L4-5
disc protrusion prior to the subject motor vehicle accident, which may have
increased in size as a result of additional trauma to her L4-5 disc pertaining
to the subject motor vehicle accident. Another possibility is that the left
L4-5 disc protrusion may have arisen as a result of the motor vehicle accident
in question.

The diagnosis of sacroiliac joint dysfunction has been
entertained. Today’s examination revealed symmetrical sacroiliac joint
movements during Gillette’s test. There was no evidence of pelvic malalignment.

Ms. Tourand recently has started prolotherapy for
treatment of her left-sided low back pain. Based on my understanding of the
medical literature, I would not advocate this therapeutic modality.
Furthermore, I would not suggest additional passive treatments such as
chiropractic spinal adjustment, massage or physical modalities.

With respect to future management of the reported low back
pain, which can extend into the left posterior hip girdle region, I recommend a
supervised exercise program under the direction of a physiotherapist or
kinesiologist. Prior to the implementation of such an exercise program,
consideration should be given to left L4-5 transforaminal epidural steroid
injection. On account of the long waitlist in the public health service, this
may have to be arranged privately.

It is my opinion that the onset and persistence of Ms. Tourand’s
neck and back pain and presumed cervicogenic headaches and resultant activity
limitations are causally related to the October 2009 motor vehicle accident.

Ms. Tourand’s post-motor vehicle accident clinical
course appears to have been complicated by her emotional and psychological reaction
to her circumstances.

Ms. Tourand has been experiencing chronic pain for more
than two years. In conjunction with a functional restoration program under the
guidance of a kinesiologist or physiotherapist, I would suggest cognitive
behavioural therapy for pain management provided by a psychologist. Psychotherapy,
furthermore, should address adjustment and lifestyle issues.

…It is my opinion that Ms. Tourand’s neck and low back
impairments have to date negatively affected her vocational prospects. This is
unlikely to change within the next six to twelve months.

Ms. Tourand has been able to manage all domestic chores,
but reportedly has struggled. She probably has the capacity to perform most
domestic activities, but will have to continue to pace herself and space out
the more physically taxing activities in her home.

At present I would consider Ms. Tourand physically
capable of performing activities that are of sedentary and light physical
demands probably with some limitations in place. These include activities
requiring sustained or repetitive truncal flexion or stooping, working at low
levels, squatting and prolonged sitting, standing, or walking….

I am reasonably optimistic that following the implementation
of the aforementioned recommendations Ms. Tourand will make some
symptomatic gains, which should translate into functional improvement.

It is my opinion that the pre-existing degenerative progress
in the neck will probably not advance at an accelerated rate as a result of the
subject motor vehicle accident.

As outlined above, it is my
opinion that Ms. Tourand probably sustained an injury to her L4-5 disc in
the motor vehicle accident. As a result of her presumed L4-5 disc injury
pertaining to the subject motor vehicle accident, the degenerative process at
this particular level will probably progress at an accelerated rate. In the
long term, this could result in symptomatic regression and a decline in
function.

Dr. J. Purtzki – Physical Medicine and Rehabilitation

[64]        
Dr. J. Purtzki, a specialist in Physical Medicine and
Rehabilitation provided two expert reports: the first dated October 11, 2012;
and the second dated September 26, 2014. In her first report, Dr. Purtzki expressed
her opinion that Ms. Tourand suffered soft tissue injury in her neck area
and that because of pre-existing degenerative changes her symptoms were prolonged,
resulting in chronic pain disorder. Dr. Purtzki also stated that Ms. Tourand
had symptoms of a right thoracic outlet syndrome and a flare-up of a previous
right shoulder injury. Further, Dr. Purtzki opined that Ms. Tourand
had bilateral low back pain, more on the left side than the right. She thought
the right-sided pain in the area of the L4/5 facet joint was likely related to
pre-existing degenerative changes that became symptomatic as the result of the motor
vehicle Accident. Dr. Purtzki also diagnosed left hamstring tendinopathy.

[65]        
Finally, Dr. Purtzki stated that Ms. Tourand had evidence of
chronic pain disorder together with severe depression and anxiety.

[66]        
Dr. Purtzki’s recommendations included:

·      
referral to a migraine specialist for consideration of migraine
medications and/or Botox injections to her neck;

·      
referrals to other specialists for further
investigation/treatment of thoracic outlet syndrome, nerve conduction studies
and possible nerve blocks;

·      
treatment at an interdisciplinary pain clinic, which had already
been initiated with the Surrey Pain Clinic;

·      
marital counselling;

·      
treatment for depression and anxiety; and

·      
physiotherapy focusing on core strengthening exercises after
chronic pain and depression had been addressed.

[67]        
Dr. Purtzki did not believe that a self-directed exercise program
would be sufficient; and that Ms. Tourand required significant coaching,
supervision and encouragement to persist with an exercise program.

[68]        
Dr. Purtzki had significant reservations concerning prolotherapy in
the neck area.

[69]        
Dr. Purtzki’s prognosis for resolution of symptoms was guarded at
that time.

[70]        
In her second report dated September 26, 2014, Dr. Purtzki
concluded that Ms. Tourand continued to suffer from ongoing chronic neck
pain, thoracic outlet syndrome, and chronic low back pain. She opined that
“clinically [Ms. Tourand] does not have any depression or anxiety
currently.”

[71]        
Dr. Purtzki’s prognosis for Ms. Tourand becoming symptom-free
remained guarded. She recommended exercise and weight loss, with the goal of
decreasing the overall pain and becoming more physically functional.

[72]        
Dr. Purtzki thought that she might be able to do some part-time
work within the next couple of years if she continued to make physical gains,
but would not be able to work full-time and could not work at a job that
requires heavy-lifting or prolonged standing. Dr. Purtzki was of the
opinion that Ms. Tourand was permanently restricted from engaging in
recreational activities that involve high impacts, such as: running, twisting,
playing golf or tennis, skiing, dirt-biking and ATV riding. She suggested she
would do alright with walking, hiking, swimming, yoga and Pilates.

[73]        
Further, Dr. Purtzki was of the opinion that Ms. Tourand would
require assistance with household activities involving heavy-lifting and
prolonged bending, but would be able to remain independent with self-care and
be able to do light household activities.

Dr. H. Mok – Psychiatrist

[74]        
Dr. H. Mok, a psychiatrist, assessed Ms. Tourand on February
22, 2012, with regard to her psychiatric and psychological condition. Dr. Mok
diagnosed Ms. Tourand with Major Depressive Disorder, Chronic Pain
Disorder and Post-Traumatic Stress Symptoms. Dr. Mok noted that in
addition to her physical complaints, particularly with regard to her low back, Ms. Tourand
was experiencing a number of psychosocial stressors, including post-traumatic
stress symptoms, depression, vocational limitations and issues surrounding her
son Josh.

[75]        
Dr. Mok recommended that Ms. Tourand be evaluated by a
specialist in physical medicine and rehabilitation, with regard to a possible
pain treatment option. With regard to the management of Ms. Tourand’s
emotional condition, Dr. Mok recommended:

(a)      the use of Cymbalta, an
antidepressant medication; and

(b)      that
she receive one-on-one cognitive-behavioural therapy from a psychologist.

[76]        
In cross-examination, Dr. Mok agreed that psychosocial stressors,
such as marital difficulties and concerns about children, can cause depression
and amplify pain.

Dr. J. Fuller – Orthopaedic Medicine

[77]        
In February 2011, Dr. J. Fuller, a specialist in orthopaedic
medicine, conducted an examination of Ms. Tourand and prepared a report dated
June 27, 2011 of his assessment of her residual injuries from the Accident.

[78]        
Dr. Fuller was made aware of the previous motor vehicle accidents
in which Ms. Tourand had been involved, but was led to understand that she
had recovered from all of them.

[79]        
Dr. Fuller assumed that the vehicle that struck Ms. Tourand’s
vehicle was travelling “at speed”, i.e. around 60 to 70 km/h at the time of
impact, with sufficient force to “crack” the frame of Ms. Tourand’s
vehicle. Dr. Fuller expressed the view that such a collision would have
resulted in forces that were sufficient to cause “a degree of musculoligamentous
trauma to the structures supporting the cervical spine/neck and the lumbosacral
spine/low back to include the sacroiliac complex” (at para. 11). As a
consequence, he expressed the opinion that “it would appear reasonable to relate
the onset of this patient’s more significant neck and low back pain symptoms to
the accident of October 15, 2009” (at para. 18).

[80]        
At the time of his assessment, Ms. Tourand’s chief complaints were
of neck and shoulder pain, headaches, and low back pain with referral to her
left leg.

[81]        
Dr. Fuller noted that an X-ray of Ms. Tourand’s neck conducted
on October 30, 2009 showed mild wedge deformity of C4, suggesting the possibility
of a minor previous compression fracture. The X-ray also showed some
degenerative change at C4.

[82]        
Dr. Fuller also noted the results of MRI investigations, which
showed moderate degenerative changes at the C5-6 level and a left disc
protrusion and degenerative arthritis in the facet joints of the lumbosacral
spine.

[83]        
Dr. Fuller’s physical examination revealed the following findings,
amongst others:

·       
spasm of superior trapezius/musculature involving the shoulder
girdle and neck and the rhomboids/musculature between the shoulder blade and
the thoracic/chest spine

·       
trigger points in the right superior trapezius and the origin of
levator scapulae

·       
trigger points in the rhomboid musculature

·       
reduced range of motion of the neck

·       
spasm of left erector spinae/musculature supporting the lumbar
spine

·       
restricted movement of the roots of the sciatic nerve

[84]        
Dr. Fuller’s diagnoses at para. 44 of his report included the
following:

1.         Headache
[due] primarily … [to] musculoligamentous trauma to the structures supporting
the cervical spine/neck. A contribution from the pre-existing degenerative
change must also be considered.

2.         Neck
pain probably due to the said residual trauma to the musculoligamentous
structures supporting the cervical spine/neck.

3.         Low back pain with referral to
the left lower extremity, again probably due to a degree of compromise to the
musculoligamentous structures supporting the lumbosacral spine. However, there
is also evidence of a pre-existing disc protrusion to the left and also a
significant degree of degenerative change at L4-5 …. There is also evidence of
compromise to the sacroiliac complex.

[85]        
The “Opinion” section of Dr. Fuller’s report further included the
following statements:

·       
It would be my opinion that she is likely to only experience some
further very modest improvement [with respect to her neck] over the next six to
eight months and the symptoms will not entirely resolve (at para. 50).

·       
[S]he can expect to have some persistence of symptoms with
reference to the low back essentially generated by the sacroiliac complex (at para. 51).

·       
[T]he pre-existing L4-5 disc could be a component to this patient’s
symptom complex, however I would not consider it the primary pain generator.
However, it is probably the cause of the symptoms with reference to the left
lower extremity (at para. 52).

·       
With reference to this patient’s occupational capacity it is of
note that her basic physical ability is significantly compromised, that is she
can walk and stand for approximately 20 minutes before exacerbation of
symptoms. Sitting is similarly difficult, needing to shift approximately every
15 minutes and she can maintain this activity over perhaps two to three hours.
This significantly curtails the range of occupational opportunity. A sedentary
position is essentially compromised. However, she is incapable of any
activity requiring more definitive physical activity in that standing, lifting,
etc., is also compromised. It is conceivable that she might be capable of an
occupation where she can easily change position during the work (at para. 54).

·       
…[T]here is a degree of degenerative change involving the
cervical spine/neck and also the lumbosacral spine. It would be my opinion that
the development of such degenerative change preceded the motor vehicle accident
of October 15, 2009. The development of degenerative change is a long term
process and can be considered a normal process of aging. Similarly,
degenerative change tends to progress and I would not relate any such
progression to the motor vehicle accident. It is also of note that degenerative
change is often an incidental finding on x-ray and is quite asymptomatic.
However, as discussed at some length above, this patient’s degenerative change
may well no longer be asymptomatic subsequent to the overload due to the motor
vehicle accident of October 15, 2009 (at para. 55).

[86]        
What I take from Dr. Fuller’s evidence, essentially, is that it is Dr. Fuller’s
opinion that while there were pre-accident changes in Ms. Tourand’s neck
and low back structures, the Accident either caused new damage, resulting in
her symptoms, or the trauma caused the pre-existing degenerative changes to
become symptomatic.

Mr. P. Pakulak – Functional Capacity Evaluation

[87]        
Mr. P. Pakulak performed a functional capacity evaluation of Ms. Tourand
on October 7, 2014, by having her complete a number of tests and exercises. He
concluded that Ms. Tourand’s test results were a reliable measure of her
physical capacity and that she performed the tests with a high level of effort.
His opinions concerning various aspects of Ms. Tourand’s functioning are
as follows in his report dated November 20, 2014:

Upper extremity strength – mild to moderate weakness
in her right shoulder and arm

Lower extremity strength – mild to moderate weakness
in left leg compared to right

Vertical reaching – Ms. Tourand demonstrated the
capacity to perform shoulder to overhead work on an occasional basis

Horizontal reaching – Ms. Tourand demonstrated
the capacity to perform horizontal reaching on an occasional basis

Bending, crouching, squatting, kneeling – Ms. Tourand
demonstrated the capacity to perform below waist work on an occasional basis

Grip strength – within normal limits for both hands

Two-handed lifting – Ms. Tourand demonstrated the
capacity to safely lift a maximum of 25 lbs. from floor to shoulder level on an
occasional basis and the capacity to safely lift a maximum of 10 lbs. from
floor to knuckle level on a frequent basis

Two-handed carrying – Ms. Tourand demonstrated
the capacity to safely carry a maximum of 30 lbs. over a distance of 30 feet

Sitting tolerance – There were mild limitations in Ms. Tourand’s
capacity for prolonged sitting in an office chair

Standing tolerance – There were no noted limitations
in Ms. Tourand’s capacity for prolonged standing (with some moving around)

Walking tolerance –
Maximum walking tolerance was not assessed. Over the course of the assessment, Ms. Tourand
was observed to walk within the testing area with no noted difficulties or
reported increase in symptoms. Her timed speed walk and stair climbing speeds
were below average.

[88]        
Mr. Pakulak expressed the following opinions at p. 30 of his report
with regard to Ms. Tourand’s overall functional capacity:

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

In my opinion, Ms. Tourand demonstrated the physical capacity
to be employable at up to a light level on a part time basis with restrictions
and limitation as noted above. Below waist level work, overhead work and
prolonged neck flexion should be kept to an occasional basis. If completing
work requiring prolonged sitting she will require the flexibility to change
positions and move about periodically in order to manage symptoms. She would be
best suited for work that allows her to alternate between sitting and standing
as needed. Given her ongoing limitations with prolonged sitting and prolonged
positioning of the head and neck she would not likely be capable of sustaining
full time employment in most traditional job settings.

It is also my opinion that her overall ability to compete for
work in an open job market is significantly reduced due to her ongoing injuries
and resultant physical limitations. That is, the overall number of jobs that
she would be able to compete for given her physical limitations are
significantly limited.

With respect to avocational activities
she did demonstrate the capacity to complete the lighter aspects of household
cleaning chores required in her present residence as she should be able to pace
herself through these tasks. She demonstrated limited capacity for the more
physically demanding chores consistent with her reported difficulties.

Mr. R. Carlin – Vocational Rehabilitation

[89]        
Mr. Carlin’s vocational assessment of Ms. Tourand dated
November 24, 2014, was made in reliance upon the various medical opinions
provided to him, the functional capacity evaluation and documentary evidence
concerning her previous employment. Mr. Carlin summarized his opinion as
follows at p.6 of his report:

…I am of the opinion that Ms. Tourand’s
ongoing symptomology and physical restrictions and limitations have
significantly curtailed her job pool. Because of her limited education and work
history she is primarily restricted to unskilled or semiskilled occupations
where training is obtained while working. Superimposed on such a picture is her
chronic pain, headaches, physical limitations and likely inability to work more
than on a part-time basis.

[90]        
Mr. Carlin also opined that if Ms. Tourand had not been
injured it is likely, given her education and past vocational experience, that
she would have been restricted to occupations that require training on-the-job.
He set out a number of these kinds of positions and provided median wages
(based on WorkBC information) of between $11 and $20 per hour.

Ms. T. Fawkes-Kirby – Cost of Future Care

[91]        
Ms. T. Fawkes-Kirby provided reports in which she provided the
estimated costs of various treatments and medications as recommended or
suggested in the various medical opinions. She is not in a position to express
an opinion whether Ms. Tourand needs this care; for that she relies on the
opinions of the doctors. Her task was simply to provide a cost for the various
items to assist the court in determining the cost of future care depending on
what care and medication the court determines is appropriate and compensable. I
simply note, at this stage, that the present value of the items set out in Ms. Fawkes-Kirby’s
reports, based upon the multipliers provided by Mr. R. Carson, an
economist, is a very significant number, over $200,000.

Ms. A. Trip

[92]        
Ms. A. Trip is a physiotherapist, who has a Bachelor of Science
Degree in Physical Therapy and a Bachelor Science Degree in Kinesiology. She
treated Ms. Tourand in an active rehabilitation program at Golden Ears Orthopaedic
and Sports Physiotherapist Corp. between June 23, 2010 and July 14, 2011. Ms. Trip
saw Ms. Tourand a total of 55 times.

Review of defendant’s expert evidence

Mr. Mark Szekely

[93]        
Mr. Mark Szekely is a labour economist, who provided an expert
report dated December 5, 2014, dealing with earnings figures for BC females
with a high school education working in occupations suggested by Mr. Carlin,
based on 2011 data from Statistics Canada.

[94]        
The average income for full-time, full-year workers in those occupations
was $34,732. For workers working less than full-time but 30 hours per week or
more, the average was $15,356. The average employment income for all workers in
those occupations, without regard to whether they were full or part-time, was
$21,726 per year.

[95]        
Mr. Szekely also provided actuarially income multipliers, which are
adjusted only for survival and discounting, as well as economic income
multipliers, which include adjustments for labour market contingencies.

Mr. Edgar Emnacen

[96]        
Mr. Edgar Emnacen, an occupational therapist and certified work
capacity evaluator, provided a functional capacity evaluation (dated December
1, 2014) of Ms. Tourand, based on his assessment and testing on October 8,
2014.

[97]        
The following functional findings are drawn from Mr. Emnacen’s
report:

·      
normal grip strength with right side neck pain and headache
flare-up

·      
full forward and overhead reach with both arms with limited
overhead reaching tolerance due to pain

·      
no difficulties with bilateral handling and dexterity functions

·      
limited basic unilateral balance

·      
limited tolerance for sustained mild to moderate stooping
postures

·      
the ability to crouch for short periods of time with exacerbation
of back symptoms

·      
the ability to sit for approximately one hour and twenty minutes
with periodic weight shifting and adjustment of seating

·      
limited standing tolerance, with the ability to stand for up to
45 minutes provided she is able to move around

·      
sedentary to light strength capacity

[98]        
Overall, Mr. Emnacen is of the opinion that Ms. Tourand is
capable of gainful employment, within the functional demands indicated above.
He is of the opinion that Ms. Tourand is capable of working on at least a
part-time basis in a sedentary to light level type of employment, such as
office-type work. She would require some accommodation to allow her to
alternate between sitting and standing, and would benefit from the use of a
sit-stand desk.

[99]        
Mr. Emnacen recommended that Ms. Tourand re-engage in an
active rehabilitation program with a physiotherapist and/or kinesiologist to
develop a suitable exercise program that she can eventually continue with on
her own.

[100]     Mr. Emnacen
was of the view that if Ms. Tourand continued with the Pain Clinic and
with active rehabilitation and exercise she could maintain and likely improve
her overall level of functioning.

Other evidence

[101]     Ms. Tourand
called two friends, as well as her husband, to give evidence concerning their
impressions of Ms. Tourand’s general nature and level of activity before
and after the Accident; and two witnesses who testified about her performance
while working before the Accident.

[102]     Mr. Tourand
impressed me as an honest and forthright witness. He testified that after being
out of the workforce and raising children for ten years, Ms. Tourand began,
in 2000, to help out at the computer business that he operates with his father.
She drove to Richmond about three times per week to pick up supplies from a
wholesaler and helped to clean the store. He viewed this as being a way to get Ms. Tourand
back into the workforce. Ms. Tourand was never paid a salary commensurate
with the amount of work she did, but notionally received income through income
splitting on the advice of the accountant for the business.

[103]     Mr. Tourand
described their efforts towards establishing the Herbal Magic franchise
businesses. He hoped that this would be his way to remove himself from the
domination of his father, which he did not like. Their Herbal Magic businesses
were financed using personal credit cards. Mr. Tourand took care of all
matters concerning negotiating the purchases, financing, improvements and
payroll. Ms. Tourand managed the day-to-day operation of the stores, hired
and trained staff and sold the products. Mr. Tourand said that Ms. Tourand
was very good at selling products, being the diet plans and the actual food and
health supplements associated with the various plans.

[104]     Mr. Tourand
said the first store was profitable, although they never were able to draw a
salary. However from the time they opened the second store in Port Coquitlam,
it was a financial drain and required most of the attention. They were unable
to make the Port Coquitlam store profitable and when the recession came in
2008, they essentially ran out of money to continue the operations. By February
2009, the last store was gone.

[105]     Mr. Tourand
wanted his wife to get a job and contribute to the family income because
finances were tight. He suggested that she seek work as a server in a pub, but
she did not attempt to do so. She tried the teeth whitening business, which he
financed, but it soon failed.

[106]     Mr. Tourand
testified that when Ms. Tourand worked at the muffler repair shop, she was
sore when she came home at the end of the day. Eventually, she went on
disability and has not worked since.

[107]     Mr. Tourand
testified that following the Accident, Ms. Tourand at first seemed to be
recovering, but then slowly got worse and worse. There seemed to be improvement
after Christmas 2009 into the spring of 2010, but then things went downhill. He
said that Ms. Tourand tried everything to get better, without success. He
heard of someone who advertised himself as a “back healer” and suggested that Ms. Tourand
see him, but she did not get any relief. He heard of prolotherapy and suggested
that form of treatment, which seem to help with her neck, but not her back.

[108]     Mr. Tourand
said that before the Accident, he and Ms. Tourand had an active life
together. They engaged in karate, jogging, hiking, biking, camping, riding on
quads and riding on his motorcycle. They went to the gym daily.

[109]     Mr. Tourand
said that Ms. Tourand had problems with her shoulder from time to time
before the motor vehicle Accident, but went to a chiropractor for maintenance.

[110]     Mr. Tourand
testified that since the Accident, Ms. Tourand’s activity level has
decreased very significantly. If they go camping, she will not ride on the
quad; she just sits by the fire. She will not ride on his motorcycle. She does
not hike. She has gained weight. Their sexual activity has gone from three to
five times per week before the Accident, to once or twice a month. He describes
their marriage now as “OK”. Before the Accident, his wife was very vivacious
and bubbly; now she is very edgy.

[111]     Mr. Tourand
testified that Ms. Tourand has to nap for 1 to
1½ hours during the day in order to cope. She does most of the housework,
but he does some of the vacuuming and sometimes helps with laundry and dishes.
His help is offered reluctantly because, as he said, “I am a little boy who
likes to play outside.”

[112]     Mr. Tourand
has suggested that Ms. Tourand go swimming and attend yoga because he
believes that activity will help her; however, she does not like swimming. He
does not think she will exercise because any activity has a pain cost for her.
She has learned to deal with activities in bunches that she can handle. He says
that she would resist the idea of psychotherapy because she believes that she
is fine emotionally.

[113]     Mr. Tourand
describes his wife as someone who does not show emotion very much, even to him.
He said that they argue about everything – “energetically”. Josh’s difficulties
were a source of friction between them.

[114]     Ms. Linda
Rogers has been a friend of Ms. Tourand for many years. She testified that
prior to the motor vehicle Accident, Ms. Tourand was very active, social
and gregarious. They often went out dancing together. Ms. Rogers was aware
that Ms. Tourand had been involved in “a couple” car accidents but did not
observe any physical limitations on her part. She testified that since the
motor vehicle Accident, Ms. Tourand seems to be in pain all the time, has
difficulty remaining focussed, and is easily fatigued. She said that now, Ms. Tourand
walks “like a little old lady, uses stair rails all the time and shifts her
position frequently when sitting.” As she described Ms. Tourand since the
motor vehicle Accident, it is as though her spirit has been broken. She is not
as sparkly as she used to be.

[115]     Ms. Shelly
King has been a friend of Ms. Tourand since childhood. They get together
at least once every two weeks. Ms. King described Ms. Tourand before
the motor vehicle Accident as being an incredibly strong, active woman. Since
the motor vehicle Accident, she cannot do the things that she used to do. She
is also more emotional now, whereas before the motor vehicle Accident she was
not overly emotional.

[116]     Ms. King
was aware of some of the difficulties that Ms. Tourand was experiencing
with Josh, but said that Ms. Tourand did not seem overly stressed by what
was going on at that time.

[117]     Ms. Nadia
Hawkins worked for Ms. Tourand in the Herbal Magic store in Port Coquitlam,
from 2004 until 2008. She described Ms. Tourand as a great boss –
composed, energetic and very organized. Ms. Hawkins also described Ms. Tourand
as a very skilled sales person. She said that she has seen Ms. Tourand a
couple of times a year since the Accident and noticed a huge difference in her.
She was not her typical happy self.

[118]     The
defendant tendered two video recordings made of Ms. Tourand in the summer
of 2014. One of them showed Ms. Tourand carrying a bag of groceries. The
other showed her sitting in a restaurant for a period of approximately one hour,
having lunch with another woman. The defendant also tendered some postings on Ms. Tourand’s
social media account that refer to her attending concerts, visiting wineries
and going out socially with friends.

Analysis

Causation and non-pecuniary loss

[119]     It is true
that there were occasions in the past when the plaintiff experienced episodes
of neck, shoulder and back pain, for which she received chiropractic
treatments. Some of these episodes were associated with prior motor vehicle
accidents and others appear to have been brought on by the physical activities
in which she engaged, including her participation in karate. However, I am
satisfied, on the whole of the evidence, that prior to the Accident the
plaintiff was not experiencing the kind of chronic pain and symptomology in her
neck and low back that she has experienced since the Accident in question. I am
satisfied that the causal connection between her present symptomology neck and
low back and the Accident has been established. In short, but for the Accident
the plaintiff would not be in the physical condition that she now finds
herself.

[120]     Ms. Tourand
plaintiff had some pre-existing degenerative changes in her neck and low back,
but I am satisfied that her current symptoms are not due simply to the progression
of that degeneration. Rather they are due to either an aggravation of a
pre-existing condition or to trauma that has made symptomatic that which was
not previously symptomatic.

[121]     I accept
that in the years before the Accident, the plaintiff was a physically active,
social person, who enjoyed life and was enjoyable to live with and be around. I
find on the basis of the evidence of her husband and friends that she is now a
very different person. The Accident has negatively impacted her ability to
enjoy physical activity and perform former household management tasks to the
same extent as before. It has led to difficulty sleeping, depression and has
affected her marital relationship.

[122]     On the
other hand, I also find that the other life events that the plaintiff has
endured since the Accident, in particular, the difficulties that her children
experienced and with which she has been integrally involved, have probably
contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand
is not, however, incapacitated. She can still manage most of her household
chores, with moderation and careful sequencing of the tasks. There seems to be
consensus among the experts that Ms. Tourand is capable of some employment,
provided it does not involve heavy physical tasks and provided she is not
required to either sit or stand in one position for a prolonged period of time.

[124]     I am also
of the view that it is probable that the plaintiff’s physical capacity and
general well-being will improve if she becomes more active, including: engaging
in a program involving further physiotherapy under the direction of a
kinesiologist or physiotherapist, swimming and psychotherapy to deal with the
emotional affects of her symptoms. In my view, based upon a consideration of
all of the evidence, it is still open to the plaintiff to accept that advice
and follow that treatment path; and that, if she does so, she can expect to
achieve some further reduction in her symptomology and improvement in her
functioning and enjoyment of life.

[125]    
The assessment of non-pecuniary damages to compensate a plaintiff for
the injuries she has suffered as a result of the defendant’s negligence is, of
course, both case specific and difficult. I bear in mind the factors referred
to by the Court of Appeal in the oft-cited decision of Stapley v. Hejslet,
2006 BCCA 34, at para. 46, including:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering;

(f)         loss or impairment of life;

(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 …)

[126]     I have
considered the cases referred to by the plaintiff: Redmond v. Krider,
2015 BCSC 178 ($150,000); Sirak v. Noonward, 2015 BCSC 274 ($160,000); and
Worobetz v. Fooks, 2015 BCSC 150 ($90,000). I have also considered the
cases referred to by the defendant: Mothe v. Silva, 2015 BCSC 140
($40,000); Sediqi v. Simpson, 2015 BCSC 214 ($80,000); Miller v.
Lawlor, 2012 BCSC 387 ($65,000); and Iliopoulous v. Abbinante, 2008 BCSC
336 ($50,000).

[127]     The
plaintiff submits that an award of $130,000 in non-pecuniary damages would be
reasonable compensation, while the defendant suggests an award of $40,000.

[128]     Considering
the nature of the chronic pain caused by the motor vehicle Accident; the poor
prognosis for anything like a full recovery; the relatively young age of the
plaintiff; and the effects that the symptoms have had and will likely continue
to have on the quality of her life in the future, I assess non-pecuniary
damages at $100,000.

Past loss of income earing opportunity/capacity

[129]     With
regard to the claim for past loss of earning capacity, the onus is on the
plaintiff to prove on a balance of probabilities that the injuries she
sustained in the Accident resulted in a loss of capacity to earn income in the
past. If the plaintiff meets that onus, the test for assessing the quantum of
the past loss of earning capacity, where that loss is based on a past
hypothetical event, is not whether, on balance the hypothetical event
would have occurred, but rather the likelihood that such a hypothetical
event would have occurred (see Smith v. Knudsen, 2004 BCCA 613 at para. 36).
Where a loss of capacity has been proven, the plaintiff the plaintiff need only
establish that there was a real and substantial possibility of a hypothetical
past event occurring but for the injury (Worobetz v. Fooks, 2015 BCSC
150, at para. 107).

[130]     I am
satisfied that the Accident resulted in injuries that impaired the plaintiff’s
capacity to engage in full-time employment after the Accident. The question
then is, what is the likelihood that, but for the Accident, she would have
obtained work and at what level of pay? The plaintiff’s employment record in
the years prior to the Accident was minimal, except for her work in the Herbal
Magic franchises for which she was unable to draw a salary because they were
not financially successful.

[131]     Following
the Accident, the plaintiff had two jobs. For a brief time, she had a
management position with another weight loss clinic, but quit that job. She
then worked for a few months from March to October 2011, at a muffler repair
shop.

[132]     The
plaintiff submits that but for the motor vehicle Accident it is likely that she
would have secured employment earning between $30,000 and $40,000 per year.
That would equate to an hourly wage of between $15 per hour and $20 per hour.
The plaintiff acknowledges that there is a very real possibility that she would
have had to take time off work to deal with family issues. Using a gross income
figure of $30,000 per year and taking the contingency for time off work into
account, the plaintiff submits that her loss of past income earning capacity
should be assessed at a gross loss of approximately $150,000 and a net loss of
approximately $130,000.

[133]     The
defendant says that the plaintiff did not actively look for work in the nine or
ten months preceding the motor vehicle Accident; and that it is unlikely that
she would have looked for work even if she was not involved in the motor
vehicle Accident. The defendant submits that the plaintiff’s family issues,
which are unrelated to the motor vehicle Accident, would have kept her out of
the workforce in any event. The defendant further submits that the plaintiff
has had the ability to work, at least part-time since the Accident and, with
the exception of the job at the muffler repair shop, has chosen not to do so,
likely because of the demands that her children and their problems have place
upon her.

[134]     The
defendant also points to the plaintiff’s lack of education and lack of job
skills as a factor that makes it unlikely that she would have entered the workforce
even if the Accident had not occurred.

[135]     The
defendant submits, therefore, that the plaintiff has not established a real and
substantial possibility that she would have entered the workforce and found a
job, absent the motor vehicle Accident.

[136]     The
plaintiff has limited education and has acquired few marketable skills in the
kind of work that she did engage in prior to the motor vehicle Accident. It
would not have been easy for her, with these limitations and at her age, to
compete in the job market for the kinds of positions that would have been
available.

[137]     On the
other hand, her husband was pressing her to find work before the Accident, in
order to contribute to the family income. I believe that there is a real and
substantial possibility that the plaintiff would have found work; although I
also think it is likely that the work that she would have found would have been
at the lower end of the range suggested by Mr. Carlin. I am also of the
view that there is a very good chance that the plaintiff would not have been
able to maintain full-time employment given her dedication to her children and
the demands that they placed on her time. Employment for the plaintiff was
something that would have helped ease the financial burden on the family, but
was not a necessity for the plaintiff. She and her husband were doing alright
with his income from the computer store. In my assessment of the plaintiff, she
would put her children and grandchild, and their needs, ahead of an increased
family income.

[138]     Taking
into account these negative contingencies and taking into account, as well, my
assessment that the plaintiff has had the capacity to look for and undertake
some part-time employment of a sedentary nature but has not done so, I assess
the plaintiff’s loss earning capacity as a result of the motor vehicle Accident
at $50,000.

Future loss of income earning capacity

[139]    
In Hardychuk v. Johnstone, 2012 BCSC 1359, Dickson J. set out the
principles to be applied in considering a claim for loss of future earning capacity
at paras. 192 – 197:

[192]    A claim for loss of future earning capacity raises
two key questions: 1) has the plaintiff’s earning capacity been impaired by his
or her injuries; and, if so 2) what compensation should be awarded for the
resulting financial harm that will accrue over time? The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett v. Pett, 2009
BCCA 232.

[193]    The assessment of damages is a matter of judgment,
not calculation: Rosvold v. Dunlop, 2001 BCCA 1.

[194]    Insofar as is possible, the plaintiff should be put
in the position he or she would have been in, from a work life perspective, but
for the injuries caused by the defendant’s negligence. Ongoing symptoms alone
do not mandate an award for loss of earning capacity. Rather, the essential task
of the Court is to compare the likely future of the plaintiff’s working life if
the accident had not happened with the plaintiff’s likely future working life
after its occurrence: Lines v. W & D Logging Co. Ltd., 2009 BCCA
106; Moore v. Cabral et. al., 2006 BCSC 920; Gregory v. Insurance
Corp. of British Columbia, 2011 BCCA 144.

[195]    There are two possible approaches to assessment of
loss of future earning capacity: the "earnings approach" from Pallos;
and the "capital asset approach" in Brown. Both approaches are
correct and will be more or less appropriate depending on whether the loss in
question can be quantified in a measurable way: Perren v. Lalari, 2010
BCCA 140.

[196]    The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos;
Gilbert v. Bottle, 2011 BCSC 1389.

[197]    The capital asset
approach involves considering factors such as i) whether the plaintiff has been
rendered less capable overall of earning income from all types of employment;
ii) is less marketable or attractive as a potential employee; iii) has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and iv) is less valuable to herself as a person capable of earning
income in a competitive labour market: Brown; Gilbert.

[140]     On the
basis of the whole of the evidence, I am satisfied that Ms. Tourand’s
capacity for earning income in the future has been impaired and will continue
to be impaired in the future. However, she had limited employment history prior
to the Accident; and her future prospects for employment, if she had not been
injured in the Accident, were likely limited to rather low paying entry-level
type positions. Her potential for re-entering the workforce, even in such
positions, has been impaired by the injuries she suffered in the Accident. Despite
her loss of earning capacity, Ms. Tourand is not totally disabled. She has
the ability to work, at least part time, in positions that will permit her to
have the freedom to move about without having to sit or stand for prolonged
periods of time. However, she does not have the same functional capacity that
she had prior to the Accident. She is entitled to reasonable compensation for
that loss of capacity to earn income in the future. The difficult aspect is the
assessment of the quantum of appropriate compensation for this loss.

[141]     The
plaintiff submits that her loss should be assessed on an earnings approach. She
submits that but for the Accident, she had the capacity to engage in
occupations in which she could have earned between $30,000 and $40,000 per
year, using occupational income data provided by Mr. Carlin. She says that
a reasonable annual income figure upon which to base the future loss, taking
into account the contingency that she has some residual earning capacity is
$25,000 per year. She projects that loss to age 65 and, using the present value
multipliers, submits that her loss of future income earning capacity should be
assessed at $375,000.

[142]     The
defendant submits that because the plaintiff was unemployed for many months
preceding the Accident and has limited employment history, the capital asset
approach is the appropriate approach to assess loss of capacity to earn income,
in which the factors set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.), have to be considered in making a global assessment of fair
compensation, including:

(1)           
the extent to which the plaintiff has been rendered less capable overall
from earning income from all types of employment;

(2)           
the extent to which the plaintiff is less marketable or attractive as an
employee to potential employers;

(3)           
the extent to which the plaintiff has lost the ability to take advantage
of all job opportunities which might otherwise have been open to her had she
not been injured; and

(4)           
the extent to which the plaintiff is less valuable to herself as a
person capable of earning income in a competitive labour market.

[143]     The
defendant submits that the plaintiff’s performance on intellectual testing
demonstrates the challenge facing the plaintiff regardless of the Accident.
According to Mr. Carlin’s testing, her reading comprehension is well below
average with the result that, in his opinion, “it is possible that she would
have considerable difficulty in either a school or work setting which would
require accurate reading comprehension skills.” Likewise, she only scored in
the 16^th percentile of the Raven’s Standard Progressive Matrices
test, which measures an individual’s ability to demonstrate clear thinking and
is correlated with non-verbal intelligence.

[144]     The defendant
submits that the plaintiff has not established a real and substantial
possibility that she would have entered the workforce and found work absent the
Accident. I disagree. Despite the plaintiff’s limitations, she has demonstrated
in the past the ability to find and sustain work within her intellectual
capacity, particularly in the area of sales, where she was apparently quite
successful in the weight loss business, even though those businesses were
overall not financially successful. What she has lost is the same physical
capacity that she had before the Accident to engage in occupations suited to
her intellectual skills.

[145]     The
plaintiff’s husband was actively encouraging her to find work prior to the Accident
and I believe that there was a real and substantial possibility that she would
have worked at some occupation, for some period of time at least, but for the Accident.

[146]     On the
other hand, my impression of the plaintiff is that she is not particularly
career oriented and, for her, working is something that she would do only for
so long and to the extent that she was required to supplement the family
income. I do not intend this comment to mean that I believe that the plaintiff
is lazy; rather her priorities are not in favour of finding and developing a career,
but on being an active and loving wife and mother.

[147]     The
assessment of future loss is not an exact science. At best it involves an
assessment of the likelihood of future possible events and that involves, in a
sense a degree of gazing into the crystal ball to try to determine what is
fair, both to the plaintiff and the defendant.

[148]     The
plaintiff is now 48 years old. I think there is a real likelihood that that the
plaintiff would have retired before the age of 65. In my view, it is likely
that she would have found employment that would have permitted her to spend
time providing care and support for her adult children as required, which
likely would have meant that she would not have worked full-time on a
consistent basis. It is also my view that the kind of jobs(s) that she would
have found would likely have paid something in the area of $15 per hour or
$30,000 per year.

[149]     I am
satisfied that the plaintiff has the capacity to work part-time if she accepts
the advice that she has received to engage in a directed exercise program and to
get and remain as physically fit as is possible. Mr. Carlin suggests that
she has the capacity to work as much as half-time. In my view, the part-time
work for which Ms. Tourand still has the capacity to perform is likely in
about the same pay range as the jobs for which she would have been qualified
had she not been in injured in the Accident.

[150]     I think it
is fair and reasonable to apply a 40% reduction to the potential future loss
based on her residual capacity for employment.

[151]     Taking all
of these factors into account, I assess the plaintiff’s loss of future earning
capacity at $220,000.

Cost of future care

[152]    
The purpose of and the test for the award of the cost of future care was
stated by Bennett J.A. in Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351 at paras. 29 – 30:

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

[30]      The award is
"based on what is reasonably necessary on the medical evidence to promote
the mental and physical health of the plaintiff" (Milna v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (B.C.S.C. and adopted in Aberdeen v. Zanatta,
2008 BCCA 420 at para. 41).

[153]     Based on
my review of the authorities put forward by the parties, I agree with the
plaintiff that she need not go so far as to prove that a future care cost is medically
necessary, but there must be an evidentiary link between the evidence regarding
the plaintiff’s pain and disability and recommended treatment and the care
recommended by a qualified health care professional (see Gregory v.
Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 39).

[154]     The
plaintiff claims a total of $190,465 for the cost of future care based on a
variety of treatments, programs and medications set out in the report of Ms. Fawkes-Kirby
and the present value calculations provided by Mr. Carson. The following
chart sets out the items claimed and their respective present value.

[155]    
I will deal briefly with each of the items claimed.

Multidisciplinary Pain Clinic

[156]     At the
time of trial, Ms. Tourand was attending the Chronic Pain Clinic at the
Jim Pattison Pavilion at Surrey Memorial Hospital and was receiving medical
interventions, including injections. She has a number of workshops available to
her through the clinic to help her manage her pain. The cost of this program is
covered by MSP. I would, therefore, not allow this claim.

MRI

[157]     This claim
is based on a recommendation by Dr. Purtzki to investigate a possible disc
compression in the cervical spine. The cost is claimed for a private MRI
clinic, but the medical service is available through MSP, although the wait
time is longer. Given the passage of time since Dr. Purtzki’s
recommendation, Ms. Tourand has had ample time to have this radiological
investigation if her doctors thought it advisable. I do not allow this claim.

Medications

[158]     The claim
for cost of future medications is based on the prescription medicines and over-the-counter
medicines that Ms. Tourand is currently taking. These include: Toradol (2
tablets per day); Gabapentin (2 tablets per day); Tramacet (2 tablets per day);
Tylenol (6 – 12 tablets per month) and Senokot for constipation (8 to 12
tablets per week).

[159]     The
current annual cost is $1,625 for the prescriptions and $125 for the over the
counter medications. The net present value of the cost of the prescriptions and
over the counter medications to age 106, taking into account survival
probability, is $42,620 and $3,274 respectively.

[160]    
While Ms. Fawkes-Kirby is able to provide the cost of these
medications, she cannot give any accurate assessment whether or how Ms. Tourand’s
prescription needs may change in the future. As she states in her report:

It is unclear if Ms. Tourand
would require the mediations she is currently on into the future. Dr. Purtzki
makes recommendations for changing medications. It is unknown if these changes
will take place. … Considering the guarded medical prognosis in relation to
resolution of her pain, it is likely that Ms. Tourand will need to take
some medication into the future. I would defer to the appropriate specialist to
comment more specifically on the expected timeframe.

[161]     It is
perhaps not surprising that the medical specialists have not provided their
opinions with any degree of certainty concerning the need for medication in the
future. The full effect of Ms. Tourand’s participation in the Pain Clinic
has yet to be seen, although she has shown some improvement in pain levels. The
potential positive effects of a consistent exercise program have yet to be
realized. If her general health and fitness improve, one may reasonably think
that her need for pain relief will diminish to some extent.

[162]     I am of
the opinion that the claim as advanced deals with far too pessimistic a
prognosis for Ms. Tourand’s future pain and the need for pain medicine;
and, consequently, far overstates a reasonable amount of money that should be
awarded under this head of future cost. While I cannot pretend to apply any
science to the assessment of what is a reasonable allowance, I conclude that an
award of $15,000 would be a fair allowance.

Allied Health and Health Maintenance

[163]     I propose
to consider the suggested costs under these two headings together because it
appears to me that with respect to the physical aspects, they are closely
related. It is my opinion, considering the recommendations made to Ms. Tourand
by her health care professionals and her adoption or lack adoption of those
recommendations that a key issue for her is to find the motivation and the
guidance to undertake and maintain an exercise program on a consistent level.
The medical opinions support the thesis that if Ms. Tourand improves her
core strength and maintains, on a consistent basis, a program of exercise
including swimming, stretching and gym exercises, her health will improve and
her ability to cope with her symptoms will increase.

[164]     Ms. Tourand
has been shown how to exercise and has participated in some directed
physiotherapy, but has not been able to maintain a consistent program. Based
upon my appreciation of the evidence, it is my view that Ms. Tourand would
benefit most from participating with a kinesiologist to develop a suitable
program of exercise and remaining with that kinesiologist on a weekly or at
least twice weekly basis for a period of at least three years. After that
amount of time, she should be sufficiently “trained” and self-motivated to
continue with the exercise program at home.

[165]     It is my
view, therefore, that Ms. Tourand should receive an award of $10,000 which
she can use to develop a sustainable exercise program that she can maintain at
home.

[166]     As for the
claim for psychotherapy, Ms. Tourand has demonstrated a clear reluctance
to engage in any form of psychotherapy. Her husband confirmed that it is
unlikely that she would agree to participate in psychotherapy. Consequently, I
make no award for this claim.

[167]     Ms. Tourand
is well versed in the importance of diet and nutrition in maintaining good
health from her work at the weight loss clinics. I am not satisfied that she
needs the services of a nutritionist.

Equipment

[168]     Ms. Tourand
says she obtains some relief by using a Mediflow pillow, Obus Forme back
support and a foam wedge bolster. I think it is reasonable for Ms. Tourand
to be awarded the cost of these items. Based on a cost of $40 every two years
for the pillow commencing in 2015; $90 every 10 years commencing in 2020 for
the back support; and $80 every five years for the wedge, as indicated by Ms. Fawkes-Kirby.
I estimate a present value of these future costs at approximately $1,420 using
the multipliers provided by Mr. Carson.

Home Care Support

[169]     Ms. Fawkes-Kirby
suggests that Ms. Tourand requires outside assistance with heavier
housecleaning on a weekly basis until her adult children move out (five years)
and on a biweekly basis thereafter. Thus far, Ms. Tourand has been
managing to do her housework without outside assistance by pacing herself and
with some help from her husband, which in a modern marriage is not something
that is either unusual or unexpected. Any adult children who are living with
her can also reasonably be expected to assist with household chores.

[170]     If, Ms. Tourand
finds part-time work, which I believe she is capable of doing, her ability to
pace herself in the performance of her housekeeping duties will be more
restricted. I am, therefore, of the opinion that it would be reasonable to
compensate Ms. Tourand for some of the heavier housecleaning on a biweekly
basis, approximately two hours every two weeks a rate of $100 for each cleaning
session for the next 12 years. This rate is less than that charged by a
commercial cleaner; but, in my view, is well within the rate that can be found
for a private housecleaner on an occasional basis. Using those values, I
estimate the present value of this item of future cost to be approximately
$25,000.

Special damages

[171]     Ms. Tourand
claims special damages totalling $17,970.46. The defendant accepts the vast
majority of the special damages claimed with the exception of the following:

(a)      $400.00
for orthotics – I am not satisfied that the plaintiff’s use of orthotics
relates to the injuries suffering in this motor vehicle Accident and this
amount is not allowed;

(b)      $133.26 for special
footwear – I am likewise not satisfied that the purchase of these shoes was
necessitated by the plaintiff’s injuries and do not allow this amount.

[172]     I,
therefore, allow special damages totalling $17,473.20.

Failure to Mitigate

[173]     The
defendant submits that Ms. Tourand has failed to mitigate her loss by
failing to take reasonable steps which would have reduced her pain, suffering,
and loss of amenities and would have enabled her to find employment. He says
that the plaintiff should have undertaken a further supervised rehabilitation
program and should have undertaken psychotherapy as recommended. The defendant
submits that her non-pecuniary damages should be reduced by a third and her
loss of earning capacity by one-half as a result of her failure to mitigate her
loss.

[174]     I believe
that if the plaintiff engages in and completes a supervised exercise program
her ability to cope with her symptoms will be increased and her overall
functionality will increase despite her symptoms such that it is very possible
that she will be able to work part-time. I have taken that possibility into
account in assessing the loss of earning capacity. However, I am not satisfied
that the evidence demonstrates on a balance of probabilities, that the
plaintiff has acted unreasonably by failing to follow prescribed medical advice;
and, in any event, that she would not have suffered substantially the same
symptoms that she has suffered. I am not prepared to diminish the plaintiff’s
non-pecuniary damages as the defendant seeks.

Summary

[175]    
I allow the plaintiff’s damages as follows:

[176]    
Counsel may arrange to speak to the issues of tax gross-up and costs, if
necessary.

“B.M.
Joyce J.”