IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151027

Docket: 12‑0676

Registry:
Victoria

Between:

Sukhwant Tomana

Plaintiff

And:

James Galvin

Defendant

Before:
The Honourable Mr. Justice G. R. J. Gaul

Oral Reasons for Judgment

[1]           
THE COURT: On the morning of 20 August 2010, Ms. Tomana
was driving her car southbound on Blanshard Street in Saanich, B.C. In the car
with her, seated in the passenger’s seat, was her husband Balraj Singh Tomana. While
stopped at a traffic light at the intersection of Blanshard and Saanich Road, Ms. Tomana’s
vehicle was struck from behind by a vehicle being driven by the defendant, Mr. Galvin.

[2]           
The defence has admitted that Mr. Galvin was responsible for the
accident. Consequently, the only issue to determine on this trial is the nature
and quantum of damages Ms. Tomana suffered as a result of the accident. In
this regard, Ms. Tomana seeks awards of damages under the following
headings:

·      
non‑pecuniary damages;

·      
past wage loss;

·      
loss of future earning capacity;

·      
future housekeeping expenses; and

·      
special damages.

[3]           
Ms. Tomana also seeks an in‑trust award to compensate her mother‑in‑law
for the work and effort she has expended on behalf of Ms. Tomana as a
result of the accident.

The Evidence

[4]           
A number of witnesses testified during the trial of this matter. In
addition to Ms. Tomana, I heard from:

·      
Ms. Tomana’s husband, Mr. Balraj Tomana;

·      
Ms. Mary Gerges;

·      
Ms. Tomana’s mother‑in‑law, Gurdev Tomana;

·      
Mr. Tristan Swift; and

·      
Ms. Tracey Gibson.

[5]           
Ms. Tomana also relies on the contents of the following expert
reports that were filed pursuant to the Rules of Court:

·      
a medical report dated 19 July 2012, authored by Dr. Paul
Winston, an expert in physical medicine and rehabilitation;

·       a
medical report dated 12 August 2013, authored by Dr. Felipe Edora, an
expert in family medicine and Ms. Tomana’s former family doctor;

·       a
medical report dated 19 June 2015, authored by Dr. Judith Jones, an
expert in family medicine and Ms. Tomana’s current family doctor; and

·       an
actuarial report on future income loss multipliers dated 15 September
2015, authored by Mr. Darren Benning of PETA Consultants Ltd.

[6]           
The defence did not call any viva voce evidence. It does,
however, rely on an expert actuarial report on future income loss multipliers
dated 24 September 2015, prepared by Mr. Mark Szekely of Columbia
Pacific Consulting.

[7]           
As a general observation, I found all of the witnesses who testified
before me to be credible and reliable. The answers to questions asked of them
in both direct and cross-examination were responsive and I do not find that any
of them unfairly coloured or embellished what they had to say in order to
unfairly advance or prejudice Ms. Tomana’s case.

Facts

Ms. Tomana’s pre‑accident
health and activities

[8]           
Ms. Tomana is 33 years old. She was 28 when the accident occurred. Throughout
her life, she has been an industrious and active person. During high school,
she worked part‑time as a front counter clerk, and then in a supervisory
role at the local Dairy Queen in her home town of Merritt, B.C. When she was 23
years old, she moved to Vancouver to pursue her post‑secondary studies in
education.

[9]           
In 2007, she earned a Bachelor of Arts degree at Kwantlen University
College. After graduation, she worked as an instructor of English as a second
language. Ms. Tomana lived an active lifestyle, participating in a
multitude of activities, including hiking and canoeing with friends.

[10]       
In 2007 or 2008, Ms. Tomana and her then fiancé, Mr. Tomana,
began building a home in Victoria, B.C. Mr. Tomana, who lived in Victoria
at the time, was the general contractor. Notwithstanding the fact that
Ms. Tomana still lived in Vancouver, she assisted and participated in the
building of the home by sourcing and obtaining building supplies and attending
at the worksite on weekends to help with the cleanup.

[11]       
The Tomanas were married in 2008. Immediately thereafter they began
living together in Victoria in Mr. Tomana’s mother’s home. This allowed
them to complete the construction of their new home. In late 2008,
Ms. Tomana, Mr. Tomana, and Mr. Tomana’s mother moved into their
new home.

[12]       
After she moved to Victoria, Ms. Tomana continued for a brief
period of time to work as an English as a second language teacher. In the fall
of 2008, she began working for the Victoria branch of the Multiple Sclerosis
Society of Canada. At first she was an administrative coordinator; however, she
was quickly promoted to fundraising assistant and then in May 2010, she became
the corporate and community development coordinator responsible for a number of
major fundraising initiatives. In that position, Ms. Tomana earns
approximately $41,000 a year.

[13]       
Ms. Tomana maintained an active lifestyle in Victoria, including hiking,
swimming and exercise classes. She also assisted her husband with the care and
maintenance of two investment properties that are owned by Mr. Tomana’s mother.
At home, she was principally responsible for the cooking of meals and the
cleaning of the house.

[14]       
All of the witnesses described Ms. Tomana as a vibrant,
intelligent, and motivated person. “Driven” was an oft-used expression to
describe Ms. Tomana.

The accident

[15]       
The motor vehicle collision was a significant one. It was completely
unforeseen by Ms. Tomana and there was no time for her to react or brace
herself. The photographs of Ms. Tomana’s car, taken shortly after the
accident, confirm the magnitude of the damage. I accept that the damage was so great
that the vehicle was a write‑off.

Ms. Tomana’s post‑accident
health and activities

[16]       
Firefighters and ambulance paramedics attended at the scene of the
accident and began providing first aid to both Mr. and Ms. Tomana. They
were transported by ambulance to the hospital, where they were treated by
emergency physicians. After approximately six hours, they were discharged from
the hospital. Mrs. Gurdev Tomana attended the hospital and drove them
home.

[17]       
In the weeks following the accident, Ms. Tomana suffered from pain
in her head, neck, shoulders, collarbone, lower back, left leg, and left foot. Her
sleep patterns were disrupted to such an extent that she and her husband began
sleeping in separate beds.

[18]       
Ms. Tomana was absent from work until October 2010, when she
attempted a gradual return to work. After a few days, the attempt was abandoned
as her symptoms continued to cause her pain and discomfort. After additional
physiotherapy and treatment, Ms. Tomana embarked upon a second gradual
return to work program in January 2011. She successfully returned to her full‑time
duties with the MS Society in April of that year.

[19]       
In September 2013, Ms. Tomana gave birth to twin daughters. Their
births were premature and the months that followed were very difficult and
stressful for Ms. Tomana and her husband.

[20]       
With the passage of time and with focused effort on the part of
Ms. Tomana, many of the injuries she suffered in the accident have
subsided. She does, however, continue to suffer regular pain in her neck and
shoulders, and occasional pain in her back. Often the pain is triggered by
stress and physical exertion.

Analysis

Non‑pecuniary damages

[21]       
Non‑pecuniary damages are awarded to compensate a plaintiff for
pain, suffering, loss of enjoyment of life, and loss of amenities. In Stapley
v. Hejslet, 2006 BCCA 34, Madam Justice Kirkpatrick outlined a number of
factors that need to be considered when assessing non‑pecuniary damages:

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

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and mental
abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: [citation
omitted]).

[22]       
In Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), Chief Justice McEachern
explained the proper approach to assessing a plaintiff’s claims for
compensation in a personal injury case as follows:

[5]    In Butler v. Blaylock, [1981]
B.C.J. No. 31, decided 7th October 1981, Vancouver No. B781505, I referred to
counsel’s argument that a defendant is often at the mercy of a plaintiff in
actions for damages for personal injuries because complaints of pain cannot
easily be disproved. I then said:

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

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

[23]       
Counsel for Ms. Tomana submits that the extent and magnitude of
Ms. Tomana’s injuries and the impact they have had on her life and
lifestyle justify an award of non‑pecuniary damages in the range of $85,000
to $110,000. In support of that position, counsel has drawn to my attention the
following cases: Rollheiser v. Rollheiser, 2012 BCSC 1512; Dunne v.
Sharma, 2014 BCSC 1106; Prince-Wright v. Copeman, 2005 BCSC 1306; and
Unger v. Singh, 2000 BCCA 94.

[24]       
Counsel for Mr. Galvin argues that the award for non‑pecuniary
damages should be less than that sought by Ms. Tomana. He maintains that
most of Ms. Tomana’s injuries have completely or substantially healed. Moreover,
he points to the fact that Ms. Tomana has returned to her regular full‑time
work and continues to care for her two young children. Additionally, she
participates, albeit to a lesser extent, in the care and maintenance around the
family home. In light of these circumstances, counsel for Mr. Galvin
submits that the award of non‑pecuniary damages should be between $45,000
and $65,000. In advancing this position, Mr. Galvin relies upon the
following cases: Sandher v. Hogg, 2010 BCSC 1152; Atker v. Nair,
2011 BCSC 1877; Cabral v. Brice et al., 2010 BCSC 197; O’Rourke v.
Kenworthy et al., 2009 BCSC 1277; and Guthrie v. Narayan et al.,
2012 BCSC 734.

[25]       
In my opinion, the extent and gravity of the injuries suffered by
Ms. Tomana call for an award that is greater than the range suggested by
counsel for Mr. Galvin. While it is true that many of the injuries
Ms. Tomana suffered as a result of the accident have healed to a significant
degree, she continues to suffer from some ongoing pain and discomfort in her
neck, shoulder and back. I find this has impacted her enjoyment of life and has
diminished her ability to engage in activities to the degree she used to. I say
this recognizing that her reduced energy levels and diminished ability to
participate in the social and sporting activities that she did before the
accident are also likely because of the heavy demands her growing family are
making on her.

[26]       
In his expert medical report under the heading "Diagnosis and
Prognosis", Dr. Winston opined:

Ms. Tomana suffered a strain in her neck with a flare of
headaches initially. She also had pain in the low back mostly focused on the
left buttock area. I would diagnose her with soft tissue injuries to the neck
and low back. There were no signs of neurologic compromise and she had a
negative CT scan of her neck.

In terms of prognosis she has
noticed slow and steady gain since the time of her collision, mostly due to
sheer hard work on her part in multiple therapies. I would expect the natural
course of her history is to continue to improve, however as of October she was
still having flares, particularly when she went off her medications. I fully
expect her to continue to improve with time, undoubtedly however there will be
flares when she has increased pain and difficulty with range of motion and
movement. It would not be unexpected for her to overdo it as she is a very
athletic woman and suffer more pain and cramping. Ms. Tomana herself had
noted even when she has exacerbations and flares the symptoms were going back
to baseline. I would not expect her to have any secondary problems such as
arthritis as a result of her injuries.

[27]       
In his expert medical report, Dr. Edora concluded:

Ms. Tomana has chronic neck
and back strain subsequent to her motor vehicle accident in August 2010. She
continues to have symptoms almost 3 years after the accident. It is very
likely that she will continue to have some degree of neck and back pain in the
future. This will probably continue to limit her work and recreational
activities. There is potential for her symptoms to worsen with activity.

[28]       
Under the heading, "Maximum Medical Improvement (MMI)", Dr. Edora
further opined:

I believe Ms. Tomana has
reached MMI. She may experience improvement with additional exercise therapy. Activities
which put strain on the [injured] areas may lead to further deterioration.

[29]       
Finally, in her expert medical report, Dr. Jones observed:

I did not do a complete back examination of Ms. Tomana
as I did not feel that it would contribute significantly to my impression as
she is now five years past her accident. I believe that she is now at a stable
point. I believe that from her description of her injury, that she suffered a
soft tissue injury of her back, neck and shoulder which have improved over
time.

. . .

I have reviewed your definition
of "maximum medical improvement", which is point 5 on page 2 of your
instructions to me. Over the last several years I have had one or two visits
with Ms. Tomana, each year related to ongoing pain, but no extreme
exacerbations. She is now back to her full time employment. I believe that she
has reached the maximum medical improvement.

[30]       
In my opinion, Ms. Tomana suffered a number of significant soft
tissue injuries as a result of the motor vehicle accident. The injuries to her
neck and shoulders have not healed and have become chronic. The intensity of
the pain is not debilitating, but it is generally constant. She also struggles
with the occasional back pain associated with the accident.

[31]       
The impact of the injuries on Ms. Tomana’s life has been dramatic. She
is not as free as she was to engage in physical activities, either at work or
socially. She is anxious when driving and has lost some of her emotional zeal
and drive. As I have said previously, that may also be because of the demands associated
with being a parent of two young children. Be that as it may, I am satisfied that
the injuries Ms. Tomana suffered in the accident have impacted her life in a
multitude of ways, including a noticeable impact upon her marital life. In my
respectful view, an award of $75,000 would fairly compensate Ms. Tomana
for her non‑pecuniary damages.

Past wage loss

[32]       
The parties have agreed that $14,084.23 represents the gross loss of
past wages Ms. Tomana has suffered as a result of the accident. I will say
nothing further with respect to that head of damages.

Loss of earning capacity

[33]       
There are two questions to address when considering this aspect of
Ms. Tomana’s claim. First, has her earning capacity been impaired by her
injuries? If so, then what compensation should she receive for the loss she
will suffer into the future?

[34]       
The assessment of this type of loss is reliant upon the specific
evidence presented at trial. It is not based on any predetermined mathematical
equation. Insofar as possible, the plaintiff should be returned to the state she
would have enjoyed but for her accident injuries. In Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144 at para. 32, Madam Justice
Garson explained:

[32]      … It is well settled
that an individual’s earning capacity is a capital asset: Parypa v. Wickware,
1999 BCCA 88 at para. 63. An award for future loss of earning capacity thus
represents compensation for a pecuniary loss. It is true that the award is an
assessment, not a mathematical calculation. Nevertheless, the award involves a
comparison between the likely future of the plaintiff if the accident had not
happened and the plaintiff’s likely future after the accident has happened: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) at para. 8. The degree of
impairment to the plaintiff’s earning capacity depends upon the type and
severity of the plaintiff’s injuries and the nature of the anticipated
employment at issue.

[35]       
There are two generally recognized approaches to the assessment of loss
of future earning capacity. The first is the “earnings approach” articulated in
Pallos v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d)
260. The second is the “capital asset approach” described in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353.

[36]       
The governing principles that apply to the assessment to this type of
loss were articulated by Mr. Justice Low and Mr. Justice Smith in Reilly
v. Lynn, 2003 BCCA 49 at paragraph 101:

[101]     The relevant principles may be briefly summarized. The standard of
proof in relation to future events is simple probability, not the balance of
probabilities, and hypothetical events are to be given weight according to
their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at
para. 27. A plaintiff is entitled to compensation for real and substantial
possibilities of loss, which are to be quantified by estimating the chance of
the loss occurring: Athey v. Leonati, supra, at para. 27, Steenblok
v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of the
loss of earning capacity may involve a comparison of what the plaintiff would
probably have earned but for the accident with what he will probably earn in
his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at 93 (S.C.). However, that is not the end of the inquiry; the overall
fairness and reasonableness of the award must be considered: Rosvold v.
Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v.
Paquette, [1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the
Court is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79.

[37]       
Counsel for Ms. Tomana argues that the residual effects of the
accident have left Ms. Tomana less attractive to future employers and to
herself, and less likely to be able to achieve her career goals and aspirations.
I am not convinced that is so. While she now needs to stand or walk around for
short periods during meetings at work, and she no longer has the same level of
intensity at work, I do not find that has or will impact upon her ability to
perform her current duties. Nor am I persuaded on the evidence before me that
the residual symptoms will adversely impact her ability to obtain gainful
employment in the future, including promotions to more responsible and
remunerative positions.

[38]       
Ms. Tomana is still a driven and ambitious individual. She is
skilled and she is articulate. She testified that she wishes to develop a
career in communications with either the Provincial Government or the
University of Victoria. Such a career would be intellectually stimulating and
challenging for Ms. Tomana and would nicely match her skillset. Morover, it
is quite likely that such a position would not tax her physical abilities or be
impeded to any noticeable degree by her post-accident symptoms.

[39]       
Counsel for Ms. Tomana argues that using the “earnings approach”
and the actuarial tables prepared by Mr. Benning, it is more likely than
not that she will suffer a loss of future income of approximately $213,000. Mr.
Faber further contends that using the “capital asset approach” and Mr. Benning’s
calculations, Ms. Tomana is likely to suffer a loss of between $225,000 and
$250,000.

[40]       
Counsel for Mr. Galvin argues the evidence before me is
insufficient to establish any loss of future earnings using either of the two
approaches. In advancing that argument, Mr. Lawler points to the expert medical
reports tendered by the plaintiff herself that conclude she is not likely to
suffer any future loss.

[41]       
I agree with the position of the defence on this portion of
Ms. Tomana’s claim. Ms. Tomana has returned to the position she held
prior to the accident. There is no evidence before me that she has received any
complaints about her work performance. It is true that recently she was not
chosen as the successful candidate for a promotion in her office, but there is
no evidence linking this failure to the accident injuries she continues to
suffer from.

[42]       
Moreover, counsel for Mr. Galvin is correct to point out that some
of the opinions expressed in the reports of Ms. Tomana’s own experts
suggest she will suffer little to no future employment losses. For example, Dr. Winston
concluded, under the heading "Loss of earning capacity":

Ms. Tomana lost income
because of her injuries. She was able to continue working at the time of our
last visit despite having discomfort. I do not believe in the long term she
will be less capable of earning income, less marketable or attractive as a
potential employee. Early on in her injuries with so much time focused on
therapies she might not have been able to take on as many tasks as possible, however
I believe that she will be able to continue this in the future, particularly as
she is so driven. I do not believe her eventual career to be impacted by this,
especially as she does not have a physical job.

[43]       
In her expert medical opinion, Dr. Jones observed as follows:

In terms of earning capacity I
believe that Ms. Tomana is now back to her pre accident employment. In
terms of future jobs, I suspect that she would not be willing to take on an
extremely physical job, but for most of the type of fundraising and
philanthropic work she does with the MS Society, I believe that she is fully
employable.

[44]       
In my respectful opinion, there is no convincing evidence either of an
employment nature, such as a functional capacity evaluation, or of a medical
nature that supports this aspect of Ms. Tomana’s claim. As I am not
convinced that there is a real and substantial possibility that Ms. Tomana
has suffered a loss of future earning capacity as a result of the accident, I
cannot award her any compensation under this head of damages.

Future housekeeping expenses

[45]       
Ms. Tomana seeks an award of $15,000 for future housekeeping
expenses. She says that on account of the ongoing pain and discomfort she
experiences in her neck and shoulders, she is no longer able to perform the
household chores and duties she did prior to the accident. This includes gardening
and maintenance work at the two rental properties owned by her mother‑in‑law.
Ms. Tomana and her husband now retain a gardener to maintain those properties,
as well as the gardens at their home.

[46]       
I accept that Ms. Tomana does not do as much around the home as she
did prior to the accident. I also accept that this is as a result of, amongst
other things, the injuries she suffered in the accident. I also accept the
cultural significance of her role as a daughter‑in‑law in caring
for her mother‑in‑law. While Ms. Tomana has returned to doing
some of the chores that she did before the accident, there are still some that
she cannot do with the same ease or efficiency.

[47]       
The defence acknowledges that there has been a loss under this heading;
however, counsel for Mr. Galvin maintains that it is a minimal loss in the
range of $1,000 to $2,000. I disagree. The loss is more significant than that. While
Ms. Tomana has made efforts to return to the level of housework that she
did prior to the accident, I accept that she is not and likely will not be able
to reach the full pre‑accident level that she was at.

[48]       
I cannot, however, conclude given the evidence before me, that the
amount of compensation is as high as Ms. Tomana is claiming. There is simply no
evidence before me to explain how the $15,000 has been arrived at.

[49]       
In my respectful opinion, a fair and just award under this head of damages
would be $7,500.

Special damages

[50]       
The parties have agreed that $4,115.25 represents the special damages
Ms. Tomana has suffered as a result of the accident. I will therefore say
nothing further with respect to this head of damages.

In‑trust claim

[51]       
Ms. Tomana maintains that her mother‑in‑law is entitled
to some compensation for the amount of work she did for her following the
accident. Counsel for Ms. Tomana submits that an award of something in the
range of $15,000 would be appropriate. He candidly acknowledged that the
suggested amount has no evidentiary foundation and it is one that is based
solely upon what he says is the discretion of the court.

[52]       
I do not find that Mrs. Gurdev Tomana went above and beyond the
call of duty in caring for her son and daughter‑in‑law following
the accident. The fact that she assisted both is of importance in this case,
because I have no way of determining what portion of her work went towards
assisting and supporting her son, what portion went towards helping her daughter‑in‑law,
and what portion may have been applied to assisting both of them.

[53]       
Mrs. Gurdev Tomana is 67 years old. Although she has had a heart
condition in the past, it appears to me that she is now in reasonably good
health. Moreover, I find she was happy to assist the family members with whom
she shares a home.

[54]       
I am not convinced there is a justifiable reason to make the award
sought by Ms. Tomana under this head of damages. Even if there was a way,
there is no possible means of quantifying the amount of compensation that she
would be entitled to. For these reasons, this aspect of Ms. Tomana’s claim
is dismissed.

Summary

[55]       
In the result, Ms. Tomana is entitled to the following awards:

[56]       
The total comes to $100,699.48.

[57]       
Ms. Tomana is entitled to her ordinary costs of this action, with
leave to apply.

“G.
R. J. Gaul J.”