IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160303

Docket: M140115

Registry:
Vancouver

Between:

Kimberly Dawn
Williamson

Plaintiff

And

Richard Rutter,
Sandra Rutter,
Government of Province of British Columbia,
Emergency Health Services, Dale Rosenberger

Defendants

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

[1]           
The plaintiff, Kimberly Williamson, was injured in a motor vehicle
accident on April 14, 2014. Liability is admitted and the only issue is damages.

[2]           
Ms. Williamson was driving a 2001 Dodge Durango eastbound and stopped
behind another vehicle on 56th Avenue at the Langley Bypass, waiting for a red
light. A westbound ambulance operated by the defendant Dale Rosenberger
travelled through the red light and collided in the intersection with a
southbound vehicle operated by the defendant Richard Rutter. One or both of the
vehicles then collided with the stationary vehicle in front of Ms. Williamson.
Ms. Williamson’s vehicle was struck four times.

[3]           
Ms. Williamson was taken to the hospital by ambulance. She was 37 weeks
pregnant. Fortunately, her unborn child was not injured. Ms. Williamson
sustained the following injuries:

·       bruising
between her knees;

·       injury
to her low back;

·       soft
tissue injuries to the right side of  her neck, between her shoulder blades,
but more in the right shoulder blade area extending up into the back of her
neck;

·       headaches;

·       anxiety
when she hears a siren.

[4]           
The bruising between her knees resolved within a week or so. The injury to
her low back resolved in a little over a month. However, Ms. Williamson
continues to experience pain in her right shoulder, extending to her neck, and
headaches triggered by the neck pain.

HISTORY BEFORE THE ACCIDENT

[5]           
Ms. Williamson is 33 years old. She and Alex Devlin have been together
since 2005. They have two children. Cadence was born December 1, 2007, and Hailey
was born May 13, 2011, a month after the accident.

[6]           
Ms. Williamson dropped out of school in grade 10. She did not do well in
school and did not like it. She attended Aldergrove Education Centre for about
a year, and completed or nearly completed grade 11. She left AEC because she
wanted to get a job.

[7]           
Ms. Williamson has a short work history. In 2005, she earned $15,778, in
2006, $12,422, and in 2007, $2,025. She worked for about a year at Au Cotton
clothing store as a sales clerk and a manager, before the store closed. She
then worked part time at Suzy Shier as a sales clerk and a key holder, meaning
that she could open and close the store. She then became a merchandiser, which
is a “non-sales position”. A merchandiser receives the clothing stock, puts the
clothes on hangers, and then hangs the hangers on clothing bars or racks. At Au
Cotton and Suzy Shier, Ms. Williamson earned minimum wage. She quit Suzy
Shier in 2007 to have her first child, and has not worked outside of the home
since then.

[8]           
Like her mother, Ms. Williamson planned to return to work when her
youngest child attends kindergarten full time, as long as either she or Mr. Devlin
would be home whenever the children were at home.

[9]           
Mr. Devlin works as a drywaller for a company that generally works on
projects in downtown Vancouver. He leaves for work around 4:45 a.m., and often
returns home at around 3:45 p.m. However, he sometimes does not return home
until 10:00 p.m., depending on the work demands. It takes him up to 1.5 hours
to drive from downtown Vancouver home to Abbotsford. Mr. Devlin’s work demands
mean that Ms. Williamson has the responsibility of getting the children to and
from school, and being home for them when they are not in school.

[10]       
Ms. Williamson was not a physically active person. However, she is part
of a close-knit family who participate in some outdoor activities. She has an
older brother and an older sister. She enjoyed hosting and preparing family
dinners at her home. She enjoyed going camping with her extended family every
weekend from Easter to Thanksgiving. When she went camping, she enjoyed hiking,
boating, and other lake activities. Her mother’s side of the family has an
annual family reunion. Ms. Williamson actively participated in the annual reunion
by preparing collages of photographs, organizing relay races, and helping her
mother prepare food.

After the accident

[11]       
Because of the pain in her right shoulder and neck, Ms. Williamson
had difficulty caring for Hailey. She had planned to breastfeed her for six
months but was unable to do it unassisted, and breastfed her for only a month.

[12]       
Ms. Williamson also had difficulty washing dishes, folding laundry, and washing
the walls, floors, and bathtub. She had difficulty carrying the kitty litter
and 4-litre jugs of milk when she went grocery shopping. The Insurance
Corporation of British Columbia (“ICBC”) offered professional homemaking
services to Ms. Williamson, but she declined because she did not want
strangers working in her house. She chose to have family and friends help her with
homemaking chores, even though she knew that ICBC would not pay them.

[13]       
For the first year after the accident, Ms. Williamson’s mother, Linda
Williamson, came every Friday – her day off work – to help her with Hailey, housework,
and the family dinners.

[14]       
Christina Williamson, Ms. Williamson’s older sister, was a single stay
at home mother who had been out of the workforce for many years at the time of
the accident. She frequently came and helped Ms. Williamson with Hailey and the
housework. At some point in 2012 – no one is clear on the dates – Christina and
her three sons moved into the spare bedroom in Ms. Williamson’s house for 9 or
10 months, until Christina found employment around the fall of 2012.

[15]       
Since that time, Ms. Williamson has looked after Christina’s three sons,
ages 7, 9, and 10, when Christina is at work. Ms. Williamson is paid by the
government. After Christina returned to work, Mr. Devlin’s friend, Travis
Bergman, came in once or twice a week for roughly two to four hours to help
with the housework for about eight months. He was paid an estimated $10 an
hour.

[16]       
After Mr. Bergman left, in 2014 Ms. Williamson’s friend, Michelle St.
Germaine, helped Ms. Williamson with her housework. She came once a week for a
few months, and then twice a week. It varied, but she was at the house for
roughly four hours washing dishes, walls, vacuuming, and folding clothes. At
first Ms. St. Germaine was paid $15 an hour, but then neither of them had any
money, and at the end, they helped out each other as friends. Around Easter
2015, Ms. St. Germaine found employment and since then has spent no time helping
Ms. Williamson.

[17]       
Ms. Williamson has had no help with her housework since early April
2015. She agrees that her injuries have improved significantly since the
accident, but since in or around September or October 2014, her pain symptoms
have “stayed about the same”. She has found new ways to do housework. She now
paces herself, and does smaller pieces of housework, rather than doing it all
at once. Laundry is her last task, so at times she may have as many as seven
loads of laundry to do. If she does all seven loads, her right shoulder is then
in a lot of pain. She has to lie down and use her Tens machine and heating pad,
and it can take as long as two days before she feels “a bit looser”. She still
has difficulties doing the heavier housework, such as folding a lot of laundry
and scrubbing the floors on her hands and knees. She now uses a spray mop to
clean the floors. She cannot scrub the bathroom or the tub because “it pulls in
my shoulder”. She used to vacuum daily, but now does it weekly because the
pulling movement causes pain in her right shoulder. She can no longer use a
steam cleaner because it requires a lot of pulling with her right shoulder. She
does not have a dishwasher. Washing dishes by hand is difficult because she has
to reach down into the sink, and the constant motion of cleaning dishes with
her right hand increases her shoulder pain. She now tends to use disposable
dishes. She no longer washes the walls. She experiences discomfort brushing her
daughters’ long hair with her right hand.

[18]       
When Ms. Williamson goes grocery shopping, she can now carry the 4-litre
jug of milk, although Mr. Devlin helps her unload the groceries when she
returns home.

[19]       
Ms. Williamson still attends the annual family reunion and helps her
mother with the food preparation, but not as much. Ms. Williamson continues to
go camping but no longer goes on 1 or 2 hour hikes, knee boarding, or boating
when the water is choppy. A lot of walking or standing hurts her shoulder and
she says that she can only last about half an hour before she returns to the
campsite. She says that she can only stand about 20 to 30 minutes or sit for
about 30 minutes before she has to start moving around.

[20]       
At present, every school day Ms. Williamson picks up her sister’s three
sons and Ms. St. Germaine’s son – they live in the same complex – and drives
them to school with her daughter. She picks the children up after school, drops
off Ms. St. Germaine’s son, and then returns home with her two daughters
and three nephews. She looks after her nephews until Christine comes to pick them
up after dinner, or as late as 8:00 p.m.

[21]       
When there is no school, such as the summer time, Ms. Williamson takes
care of all five children when Christine is working.

[22]       
Ms. Williamson complains that when Hailey wants to dance, she cannot
pick her up and dance around the living room. She can only hold Hailey for a
couple of minutes before she experiences a shooting pain in her shoulder that
goes into her neck. If she sits down and colours pictures, she will be sore for
a couple of days.

[23]       
Mr. Devlin was very forthright in his evidence. There were times after
the accident when Ms. Williamson’s pain was so bad that she would call him crying,
and ask him to leave work and come home. He said that it has been quite some
time ago – perhaps a year to a year and a half – that she has called asking him
to come home. He testified that her symptoms have plateaued, but the pain is
always there, and it is up and down, depending on what she does. She still gets
really sore if “she gets carried away cleaning the house” or does an excessive
amount of work as if she has OCD. He says it is tolerable, but she will have to
rest and relax.

[24]       
Ms. Williamson has had physiotherapy and massage therapy treatments, but
when and for how long is not in evidence. She finds acupuncture helps her
headaches.

[25]       
After the accident, Ms. Williamson experienced anxiety when she was
driving and heard a siren. Her heart would race. It still happens, but her
heart rate returns to normal a lot sooner. When she hears a siren, her heart
will start racing, but as soon as she sees where the siren is coming from, her
heart rate slows down. It does not affect her ability to drive.

expert evidence

[26]       
Dr. Brian Heller, Ms. Williamson’s family physician, saw her at fairly
regular intervals following the accident. In his report dated November 1, 2015,
he states:

[T]he patient was last seen on
October 8, 2015 and described continued improvement without acupuncture in the
month prior. She continued to describe restricted activities, such as cleaning
and housework due to daily fluctuations in severity of pain intermittent
headaches. She described some days of lesser symptoms of pain, with housework
and childcare duties. Her described focus of symptoms was in the right
trapezius muscle group and she stated that her medication use was ibuprofen for
headaches approximately twice monthly. … there has been overall improvement,
but not complete resolution of her injury. The injuries overall are soft tissue
in nature and continued improvement over time would be expected.

[27]       
Dr. Mark Adrian, a specialist in physical medicine and rehabilitation,
assessed Ms. Williamson on July 24, 2015. He determined that she has full range
of motion in her shoulders and shoulder girdles, but with arm elevation, she
experiences pain in her upper mid back. He opines that she suffered soft tissue
injuries on her neck and upper mid back. Her headaches are triggered by her neck
pain. The most likely cause of her shoulder pain is referred pain from the soft
tissue injuries to her neck. Dr. Adrian suggests that Ms. Williamson’s symptoms
are chronic and the prognosis for further recovery is poor. It is unlikely that
her injuries will undergo progressive deterioration over time, but her neck and
upper mid back area are vulnerable to injury in the future. She will probably
have difficulty performing activities that involve repetitive or heavy lifting,
prolonged stooping, prolonged sitting, forceful pushing or pulling, prolonged
carrying, and prolonged awkward spinal positions. He opines that Ms. Williamson
is probably permanently partially disabled from her injuries.

[28]       
At the request of the defendants, on October 9, 2015 Ms. Williamson was
examined by Dr. O.M. Sovio, orthopaedic surgeon. In his report, Dr. Sovio
states:

SOCIAL HISTORY

She is able to do her activities of daily living although she
has to pace herself. She finds cleaning the bathroom walls and the floors to be
somewhat challenging as well as bathing her children.

She exercises by stretching and she states that she is quite
active with the children. I don’t believe that she does any kind of formal
exercise.

She smokes 1 package of cigarettes per day. Her leisure
activities in the summer include camping and boating but she was not able to do
any water skiing or wake boarding behind the boat this summer.

PHYSICAL EXAMINATION

Range of motion was not a problem except for flexion. The
patient was not able to flex more than 3 fingerbreadths from the chest but when
distracted the patient seemed to have full range of motion without any
complaint.

IMPRESSION AND DISCUSSION

There is no restriction as far as range of motion of the
shoulders is concerned but the patient does complain of some restriction in the
range of motion of the neck into forward flexion causing some significant
tightness for her.

It would appear, then, that the patient suffered some soft
tissue injury involving her neck and her trapezial and right sided levator
scapular region. I would encourage the patient to carry on with an exercise
program. This should be a strengthening program for the musculature as well as
general fitness program to improve physical fitness. Unfortunately, the patient
is busy with her own children and providing after school care for her sister’s
children. This appears to preclude her spending time on an exercise program. I
think it would be very important for her to do that and I would encourage her
to carry on with that. I believe that it would be more beneficial than any
specific formal treatment.

I do not feel that massage therapy, physiotherapy or
acupuncture will make a whole lot of difference in the long term but certainly
strengthening of the various muscle groups of the neck and the shoulder area
would likely be helpful.

I would encourage the patient to carry on with her activities
in as normal a fashion as possible as this is psychologically beneficial.

I do not feel that any further
investigation is warranted at this time and I would expect a recovery to occur
given time and attention to fitness and muscle strengthening.

[29]       
Haley Tencha, an occupational therapist, conducted a functional/work
capacity evaluation of Ms. Williamson on September 24, 2015. In her extensive
report, dated October 6, 2015, Ms. Tencha includes a chart outlining the
changes in pain level for Ms. Williamson before and after testing, as well as
the highest and lowest pain level in the last 30 days, Ms. Tencha used a
functional pain scale, with pain from .25 to 2.75 being non-disabling pain or
discomfort, 7 being “severely disabling pain”, and 10 being the “worst pain
imaginable”. Ms. Williamson’s pre-testing pain level was 0/10 for lower
back pain, 1/10 for the right side of her upper back, and 2/10 for neck pain
and headache. Ms. Williamson also indicated that in the last 30 days, her neck
pain was as low as 1/10 and as high as 7/10. At the end of the testing, her neck
and right shoulder pain was 5/10, and her headache was 6/10. The tests were to
prove a person’s ability to work throughout the day, so most people are
fatigued by the end of 6.5 hours of tests.

[30]       
Ms. Tencha’s testing and observations disclose that Ms. Williamson’s
physical limitations are not as great as she perceives or as Ms. St. Germaine,
Mrs. Williamson or Christine perceives. I am not suggesting that these
women were not telling the truth, but only doing their best to assist Ms.
Williamson with her claim.

[31]       
Ms. Williamson testified that she cannot sit for longer than 30 minutes
or stand for longer than 20 to 30 minutes. However, Ms. Tencha’s report
outlines Ms. Williamson’s demonstrated capacity and limitations with
respect to sitting, standing, overhead reaching, lifting, and carrying, as
follows:

[32]       
Ms. Williamson demonstrated no limitations with respect to climbing
stairs, gripping/pinching, crouching, or kneeling.

[33]       
Ms. Williamson was seen by a psychiatrist, Dr. Rasmusen, at the request
of the defendants. Dr. Rasmusen finds that Ms. Williamson does not meet the
criteria for post-traumatic stress disorder. She only experiences anxiety when
she hears sirens and does not meet the criteria for any driving phobia.

[34]       
Ms. Williamson complains about her migraine headaches, but there is no
medical evidence that she has migraine headaches. There is no doubt that her
neck pain causes her headaches, but they are not migraines.

Damages

(a)  Non-pecuniary damages

[35]       
Ms. Williamson seeks non-pecuniary damages of $80,000 and relies on Boysen-Barstow
v. Insurance Corporation of British Columbia, 2015 BCSC 1740; Gill v.
Bhuller, 2015 BCSC 851; Testa v. Mallison, 2009 BCSC 957; Duda v.
Sekhon, 2015 BCSC 2393; and Davidge v. Fairholm, 2014 BCSC 1948,
where the awards ranged from $70,000 to $90,000. The defendants contend that
the range of award under this head of damages is $40,000 to $50,000, and rely
on Randhawa v. Chiang, 2014 BCSC 631; Perren v. Lalari, 2008 BCSC
1117; and Kelly v. Kotz, 2014 BCSC 244.

[36]       
I find an appropriate award of non-pecuniary damages to be $65,000.

(b)  Loss of earning capacity

[37]       
The law relating to loss of earning capacity was canvassed in Schenker
v. Scott, 2014 BCCA 203. What is being compensated is not the loss of projected
earnings, but the loss or impairment of the plaintiff’s earning capacity. It
can be assessed – as opposed to calculated – on an earnings approach or on a
capital asset approach.

[38]       
Ms. Williamson led no evidence relating to her projected earnings, if the
accident had not occurred. That may be because Ms. Williamson had no career
plans, other than planning to look for work when Hailey starts kindergarten in
September 2016.

[39]       
Ms. Williamson testified that she looks forward to returning to work
because she enjoys having adult conversation and socializing at work. Before
the accident, she thought of returning to work at Suzy Shier or another woman’s
apparel store. The closest Suzy Shier is in Abbotsford about 15 minutes away.
She also thought being a “receptionist of some form would be nice” with “easy
hours”. She also thought of being a secretary because she took typing in high
school. She also thought of completing grade 12 so that she would be able to
tell her daughters that she had grade 12.

[40]       
Other than her thoughts, Ms. Williamson has taken no steps towards
working as secretary or completing grade 12.

[41]       
Ms. Williamson does not plan to start looking for work until Hailey
starts kindergarten in September 2016. The work must be part time and must
accommodate her schedule of dropping the children off at school at 8:30 a.m.
and picking them up from school at 2:30 p.m. It must also accommodate her
requirement that at least she or Mr. Devlin be at home when the children are
not in school. Ms. Williamson said that she would be able to work from 9:00
a.m. to 2:00 p.m., or after her husband returns home from work. She gave no
evidence on what she anticipated would happen during the weekends, summer
holidays, other holidays, or other days when the children would not be
attending school.

[42]       
Ms. Williamson said that she would eventually work full time when
Cadence is old enough to go home from school by herself, and be left alone for
a few hours before she or her husband return home from work. She did not say
when she considered Cadence would be old enough to be home alone.

[43]       
Ms. Williamson testified that at Suzy Shier, and in that industry in
general, most employees work part time for four or five hours a day. There are
only a handful of full time employees. About eight months ago she spoke to Suzy
Shier’s district manager, who indicated that they would take her back. However,
Ms. Williamson never discussed with her the fact that she could only work
between the hours of 9:00 a.m. and 2:00 p.m.

[44]       
Ms. Williamson was asked about her thoughts on when she might retire,
and she said 60 was around the age her mother is retiring and that “seems
pretty fair”. However, from the evidence it appears that Ms. Williamson’s
mother, Linda Williamson, hopes to retire when she is 60 because she will then
have 30 years of service with Revenue Canada and be eligible for an unreduced
pension.

[45]       
John Struthers is a labour economist. He was asked to provide a set of
income multipliers for calculating the present value of any pattern of future
employment income that Ms. Williamson may earn. The only assumptions he was
provided with and used were that Ms. Williamson is female, her date of birth,
and the date of trial. The multipliers he generated were adjusted for survival,
but do not incorporate statistical allowances for any other contingencies. Thus,
the survival-adjusted present value of future employment from the date of trial
to Ms. Williamson’s 55th and 65th birthday is $18,194 per $1,000 of annual
earnings to age 55; and $22,532 per $1,000 of annual earnings to age 60.

[46]       
Ms. Williamson argues that “the body of evidence points to [her] not
working in any meaningful capacity in the future either on a full time or part
time basis”. She claims that given full time employment based on the median
salary of a salesclerk in British Columbia at $24,750 (which was not in
evidence), her loss is $450,319 to age 55 and $610,062 to age 65. She then
advances a claim of $150,000 “using the capital asset approach”.

[47]       
The evidence is not that bleak. Ms. Tencha testified that Ms. Williamson
stood for 2 hours 30 minutes in weight bearing postures, but not continuously.
Her maximum tolerance was one hour before she needed a seated break of a few
minutes, but less than five minutes. Her most significant limitations are
reaching repetitively or for long periods of time. She requires a micro break,
of less than a minute long to stretch, but after the micro break, she would be
able to complete the task.

[48]       
Ms. Tencha opined that Ms. Williamson is able to perform the demands of
a retail sales clerk, although she has limitations with prolonged standing, and
would have difficulty if she obtained a position that required lifting or
carrying boxes of merchandise above her demonstrated capacity. Ms. Williamson
is able to perform her job as a nanny or babysitter but she does not have the
capacity to lift or carry children over 40 pounds from floor to waist level.
She is capable of gainful part-time employment as an administrative clerk or
secretary, but with full-time employment she has functional limitations with
prolonged sitting.

[49]       
Ms. Williamson testified that she could not perform the job that she did
before at Suzy Shier because she would have to wear fitted clothes instead of a
hoody, which means that she would have to wear a bra. After a couple of hours, bra
straps cause pain in her right shoulder, which then extends to her neck, and
she then gets a headache. However, there was no evidence why Ms. Williamson could
not wear a strapless bra. She appears to me to have a fairly slender build.

[50]       
In her report, Ms. Tencha concludes:

Overall Work Capacity
It is also my opinion that her overall capacity to compete for work in an open
job market has also been reduced due to her ongoing limitations related to pain
in her neck, the right side of her upper back and headaches. That is, the
overall number of jobs that she would be able to compete for and sustain is
limited compared to individuals without her physical and functional
restrictions. She will require modifications built into any occupation such as
the flexibility to take frequent breaks to change positions and stretch in
order to manage her symptoms and remain productive. She is best suited for
occupations that require Sedentary to Light Level strength and activity. She
will require appropriate ergonomics and ergonomic equipment with any work
requiring prolonged static sitting. It is likely that she will periodically
require time off work when her headache symptoms are severe.

[51]       
Ms. Williamson may not be able to perform her former job of merchandiser
but there is nothing in the evidence – other than argument – that she is unable
to work in any meaningful capacity.

[52]       
There are other contingencies to consider. Ms. Williamson only intended
to pursue part-time employment for a number of years, and as she said, most
positions in women’s apparel are part-time positions, and few are full-time
positions. Non-union retail positions are subject to the vagaries of lay-offs
and unemployment. Ms. Williamson’s employment with Au Cotton lasted less
than a year before the store closed. She agreed on cross-examination that she
could work selling lottery tickets. However, I find that there are some jobs
that are closed to her because of her physical limitation and her education. The
difficulty is knowing what jobs would have been open to her, and that she would
have accepted, but for the accident. It is most likely in retail sales selling
women’s clothes, or other sales positions, earning minimum or close to minimum
wages. There will be jobs open to her, but she may have to decline those that
exceed her functional limitations. The jobs will also have to meet her family
demands. She suggests that she will work to age 60 like her mother, but her
mother is only doing so because of her federal pension.

[53]       
The defendants argue that Ms. Williamson’s biggest hurdle will not be
related to her injuries but to finding employment in the next few years that
meet her requirements of being with her children until they are old enough to
look after themselves. I agree. However, I also conclude that there is a real
possibility that Ms. Williamson will suffer a loss of future income from
her permanent partial disability, but it is not that great. Doing the best I
can, I assess her income loss at $20,000. The assessment would be the same
whether on the basis of the income approach or capital loss approach.

(c)  Loss of homemaking capacity

[54]       
In her report, Ms. Tencha states:

With respect to avocational or
unpaid tasks, test results and clinical observations indicate that she is
capable of performing light homemaking chores such as cleaning countertops,
sweeping and cooking as long as she paces herself appropriately throughout the
day or week. However, she is likely to experience more difficulty and increases
in symptoms with tasks requiring heavier demands and those activities that
place strain on her neck and the right side of her upper back. She is likely to
struggle with regular inside cleaning tasks such as cleaning the bathtub,
washing the floors, repetitive scrubbing while washing dishes and repetitive cutting/chopping
and stirring during meal preparation. She is also likely to have increased
difficulties with seasonal cleaning tasks such as washing walls and windows,
cleaning out higher cupboards and moving heavy furniture. Given her limitations
and considering that her primary occupation is currently as a Homemaker and
Nanny, I anticipate that it would be reasonable for her to receive consistent
weekly or bi-weekly assistance for the regular inside household tasks and well
assistance a few times per year for the seasonal cleaning tasks in order to
enable to continue to perform her Nanny services at a sustainable level.
However, an assessment of her home environment would be required in order to
provide a more precise recommendation for such services.

[55]       
Ms. Williamson relied on family and friends to help with housework, and
seeks $20,000 for past expenses for housekeeping services on an in-trust basis.
However, I decline to make an award under this heading. Ms. Williamson could
have mitigated her damages by using housekeeping services offered by ICBC. Her
reason for declining on the basis that she did not want strangers working in
her house was not reasonable in the circumstances. I find that the homemaking
assistance provided by Ms. Williamson’s mother and sister were not over and
above what would be expected from the family relationship: Bystedt v. Hay,
2001 BCSC 1735 at para. 180.

[56]       
The Court of Appeal in Bradley v. Bath, 2010 BCCA 10, stated at
para. 43:

[43] An in-trust award is
one made to a plaintiff in trust for one or more of his or her family members,
who are not named as parties to the action, as compensation to the family
members for additional work done by them as a result of the impaired capacity
of the plaintiff to perform housekeeping chores or to care for themselves. It
was affirmed as a recoverable award by this Court in Kroeker v. Jansen
(1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).

[57]       
Ms. Williamson also seeks $20,000 for loss of housekeeping capacity. An
award for loss of housekeeping capacity should be approached cautiously. Except
for heavier household tasks such as washing the floors on her hands and knees,
and washing the walls, Ms. Williamson has had no help with her household tasks
since around Easter 2015. She is able to complete most of her household tasks
if she paces herself. She is unable to do the heavier household work. However,
I accept Dr. Sovio’s opinion that Ms. Williamson needs an exercise and
strengthening program for her musculature and fitness program to improve her
physical fitness. Strengthening the various muscle groups in her neck and
shoulder area would likely be helpful and improve her ability to function. I
find an appropriate award for loss of homemaking capacity to be $9,000.

(d)  Costs of future care

[58]       
Ms. Williamson seeks the following:

[59]       
Ms. Tencha opined that Ms. Williamson currently requires weekly or
bi-weekly assistance for heaving and more repetitive regular housekeeping tasks
“in order to enable her to continue to perform her nanny services” for two
children and three nephews. Ms. Tencha indicates that the cost for a licensed
cleaning business is between $24.75 and $29 per hour, plus GST. Ms. Williamson
seeks four hours biweekly, or $2,574 to $4,016 per annum. Using the tables in Civil
Jury Instructions (CIVJI), and using $2,574, to ages 55, 60, and 65, results in
$45,451, $53,299, and $60,407 respectively. Ms. Williamson seeks an award
of $55,000 for future housekeeping costs.

[60]       
Ms. Williamson will not always be looking after five young children, and
common sense tells me that having five children in the house, between the ages
of 5 and 10, creates more housework. There will come a time when the children
have left home, and it will not be necessary to vacuum daily or wash the walls
monthly. There will also be fewer dishes and clothes to wash. There is also the
prospect of her family physician Dr. Heller that continued improvement is
expected, and the opinion of Dr. Sovio, that with a physical fitness and muscle
strengthening program Ms. Williamson is expected to recover.

[61]       
I consider an award of $15,000 for future housekeeping costs to be
appropriate.

[62]       
Ms. Williamson finds acupuncture helps relieve the pain in her right
shoulder and neck, and resulting headaches. She seeks an award of $30,000 to
allow her two treatments a month at $60 each. The present value using the
tables in CIVJI yields a present value of $33,794 to age 65.

[63]       
No expert has recommended that Ms. Williamson should have acupuncture. In
her closing argument, she referred to Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at paras. 38-39:

[38]  Courts do accept testimony from a variety of
health care professionals as to necessary and reasonable costs of future care: Jacobson
v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377
(S.C.) at para. 182; in which Levine J. (as she then was) said:

[182]  The test she enunciated does not, in my
view, require that the evidence of the specific care that is required by the
plaintiff be provided by a medical doctor. In Milina v. Bartsch,
McLachlin J. accepted the evidence of a rehabilitation expert as to the type of
care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras.
43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39]  I do not consider
it necessary, in order for a plaintiff to successfully advance a future cost of
care claim, that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link
drawn between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional: Aberdeen
at paras. 43, 63.

[64]       
The defence opposes any award for acupuncture because it is not
recommended by any physician. Dr. Adrian in his report states:

I encourage Ms. Williamson to continue with her home exercise
program to maintain her level of fitness.

Ms. Williamson participates with
acupuncture. She will probably continue to experience short-term improvement
with acupuncture treatments. It is unlikely, however, that acupuncture will
lead to long-term further healing of her injuries.

[65]       
Dr. Sovio does not feel that acupuncture will make a whole lot of
difference. Dr. Heller does not recommend acupuncture, which was initially
recommended to Ms. Williamson by her massage therapist. From his report, it
appears that he has provided a requisition for acupuncture when she has
requested it. I find an appropriate aware for future acupuncture treatments is
$5,000.

[66]       
I find that Ms. Williamson’s complaints about her anxiety when hearing
sirens is minor. She has not sought any treatment and I conclude that treatment
is not required.

[67]       
Ms. Williamson is awarded a total of $20,000 for future care costs.

(e)  Special damages

[68]       
Special damages are agreed at $8,052.19.

Conclusion

[69]       
Ms. Williamson is entitled to damages as follows:

“Loo J.”

________________________________

The Honourable Madam Justice Loo