IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160331

Docket: M114802

Registry:
New Westminster

Between:

Danica
Violette Rutter

Plaintiff

And:

Russell George
Adams

and
Jacqueline Lois Adams

Defendants

– AND –

Docket: M139131

Registry:
New Westminster

Between:

Danica Fletcher

Plaintiff

And:

Kevin M. Simpson

and Hollie M.
Schuurman

Defendants

Before: The Honourable Madam
Justice Watchuk

Reasons for Judgment

I.                
INTRODUCTION

[1]            
The plaintiff, Danica Rutter, now Danica Fletcher, claims for damages
resulting from two motor vehicle accidents:  July 21, 2007 and September 9,
2011.  The trials of the actions arising from both accidents were heard
together by consent.

[2]            
On July 21, 2007, the plaintiff was the driver of her own vehicle when
it was struck on the driver’s door by a vehicle owned by the defendant, Russell
George Adams, and operated by the defendant, Jaqueline Lois Adams (the “first
accident”).  Liability for the first accident has been admitted by the
defendants.

[3]            
On September 9, 2011, the plaintiff was again driving her own vehicle
when it collided with a vehicle that was owned by the defendant, Hollie M.
Schuurman, and driven by the defendant, Kevin M. Simpson (the “second accident”).
Liability for the second accident is not contested by the defendants.

[4]            
Ms. Fletcher claims damages for the physical, psychological and
emotional injuries she sustained and the losses suffered as a result of the first
accident and the second accident.  In particular, she claims non-pecuniary
damages, past and prospective loss of earnings and lost opportunity, diminished
earning and housekeeping capacity, the cost of future care, damages in trust
for others, special damages, and accelerated depreciation in the value of her
vehicle following the first accident.

II.              
ISSUES

[5]            
As liability for the first accident was admitted, and liability for the
second accident is no longer contested, liability is not in issue.

[6]            
The issues for determination are the nature and extent of the injuries
and losses suffered by Ms. Fletcher, the degree of recovery from those
injuries, and the damages to which she is entitled.  In this case, there were both
physical and psychological injuries sustained.  Six physicians, including two
neurologists, a psychiatrist, a psychologist, a physiatrist and a family physician
provided expert evidence.

[7]            
It is the submission of the plaintiff that the negligence of the
defendants fundamentally changed Ms. Fletcher’s life and permanently
altered its course.  She says that she is not, nor will she ever be, the woman
she was on July 20, 2007.

[8]            
The defendants in both actions, collectively “the defendants”, submit
that although it is not disputed that the plaintiff sustained neck and back
soft tissue injuries and headaches as well as psychological injuries from the first
accident with a minor aggravation from the second accident, it is contested that
she continues to suffer a great degree of impairment from her injuries.  They
say that there has been a significant recovery since 2011 in the areas of neck
and back pain and suffering from headaches as well as the psychological and
psychiatric effects from the accident.

III.            
EVIDENCE AT TRIAL

[9]            
Many of the facts including the chronology of the plaintiff’s
pre-accident life, work-related history and the treatments following the
accidents are not in issue.  The defendants challenge the plaintiff’s
credibility and reliability with regard to her evidence of injuries and
recovery, and submit that that evidence is rife with inaccuracies and
inconsistencies.  I will resolve those issues in the Discussion section below.

A.             
Danica Fletcher

1.              
Prior to the First Accident

[10]        
Ms. Fletcher is 37 years old and has spent most of her life in
British Columbia.  She grew up in Coquitlam, the only child of Robert and
Marion Rutter, and other than 18 months in Sechelt and attending the Banff
Centre for the Arts in Alberta, she has resided in the Lower Mainland.  She
described her early years as idyllic.  When she was eight her parents separated
then reconciled three years later.

[11]        
Ms. Fletcher was born with dislocated hips and she was first taken
to a chiropractor as a toddler.  She has remained a patient of the same
chiropractor since then.  In junior high school, she also struggled with
suicidal ideation and self-harm as a result of bullying and teasing.  During
this period Ms. Fletcher moved to Sechelt to live with her aunt.  Upon
returning to Coquitlam, she made new friends and finished high school in 1996.

[12]        
Ms. Fletcher has maintained a close and loving relationship with
both of her parents.  In a family active in the arts, including her mother who
worked as a fine arts educator, she enjoyed various fine art subjects,
including ballet, modern dance and painting.  These interests developed into a passion
for stagecraft.  In high school she was responsible for making masks for a
production of Madame Butterfly.  She developed skills in this area, learning
carpentry, rigging and stage lighting.

[13]        
Ms. Fletcher began working in high school part-time and upon
graduation found a job at H&R Block.  She was accepted to an interior
design program at Kwantlen College but opted instead to attend Douglas College
from 1998-2000 in their stagecraft program.  She received a full scholarship to
the Banff Centre for the Arts and attended there for two summers.  At the Banff
Centre for the Arts, Ms. Fletcher met various professionals in the
industry and was inspired to pursue a career in stagecraft and someday work for
Cirque du Soleil.

[14]        
In this industry her first position was working as a lighting supplier
in a warehouse for what was then Showtime Lighting but was later known as Q1
Production Technologies and Epic Production Technologies (“Showtime”).  This
position involved designing, moving, loading, unloading, setting-up and taking
down lighting and other heavy equipment.  She often had to climb ladders
carrying equipment and frequently drove a one tonne truck to venues, sometimes
out of town.  Work days were long and she sometimes worked seven days a week. 
She excelled in this industry and became a crew chief.

[15]        
It was in this role that Ms. Fletcher met her future husband, Kevin
Fletcher.  They began dating in July 2004.

[16]        
Ms. Fletcher was involved in two motor vehicle accidents during
this period on October 17, 2000 and December 9, 2003.  In both accidents she
was hit from behind.  As a result of the 2000 accident she injured her back and
missed about three weeks of work.  The 2003 accident resulted in further injury
to her neck and back.  In 2003, she was cautious for several weeks but did not
miss work.  After these accidents, Ms. Fletcher was able to return to full
duties at her work and all of the physical demands that went with it.  She
underwent chiropractic treatment after each accident.

[17]        
Later in 2004, Ms. Fletcher was offered a position at Art of the
Party Design (“Art of the Party”) as a full-time shop manager.  This position
involved all aspects of event staging and design and, like her position at
Showtime, had long hours and involved designing and constructing sets which
involved everything from construction with lumber and power tools to the
finishing aspects of painting and lighting.

[18]        
In late 2005, Ms. Fletcher resigned from Art of the Party as she
felt burned out and taken advantage of due to the working conditions.  In
January 2006 she commenced work in a new position at Cinequip White
(“Cinequip”) as a shipper/receiver of movie and theatrical equipment.  This job
involved heavy work loading and unloading trucks of film equipment.  Ms. Fletcher
saw this position as a short-term, 18 to 24 months, solution and a less
stressful position.

[19]        
In this position Ms. Fletcher occasionally had lower back pain if
she exerted herself or lifted beyond her capacity.  She found that chiropractic
treatments were effective when needed and does not recall missing any work due
to back symptoms.  She also continued freelance work striking shows and lights
at Showtime.

[20]        
In September 2005, Ms. Fletcher and Kevin moved in together and
began planning life as a couple.  They enjoyed going on 4×4 “wheeling” trips together
where she would clear the path for the truck by moving obstacles and operating
the winch.  During these trips Ms. Fletcher was an enthusiastic and active
participant who greatly enjoyed what amounted to deliberately rough and
challenging rides off-road.  She was able to participate fully without
hesitation or restriction.  She also enjoyed camping, hiking and scaling rocks.

[21]        
At home they gardened, painted and otherwise improved the unit they had
rented.  Household duties were shared but Ms. Fletcher performed roughly
70% of those tasks.  They were financially independent and rarely needed to
rely on others for assistance.  Their long-term plan included Kevin going to
school for electrical engineering at BCIT with the assistance of Ms. Fletcher’s
father.  During 2006 and 2007, Ms. Fletcher and Kevin were talking about
marriage and children.

[22]        
Before the first accident, Ms. Fletcher was able to work extremely
long hours performing physically demanding work.  While she would sometimes
have to take care with heavy lifting and occasionally experienced some back
symptoms, she was not functionally restricted or limited in her ability to work
or participate in social, recreational or any other activities of daily life.

[23]        
Ms. Fletcher described herself at this time as bubbly and extremely
social.  She was motivated, positive, optimistic and able to offer support to
family and friends when the need arose.  In her words, she was “rarely in one
spot for very long.”  She was physically active and emotionally healthy and
happy.

2.              
The First Accident

[24]        
On July 21, 2007, Ms. Fletcher was turning left from Woolridge onto
King Edward in Coquitlam when a vehicle driven by the defendant, Ms. Adams,
struck her vehicle on the driver’s side.  The impact caused Ms. Fletcher’s
head to strike the driver’s side window, knocking raindrops from the window
where it had been struck by her head.

[25]        
Ms. Fletcher then observed what she thought was an attempt by the
defendant to leave the scene.  The defendant’s vehicle struck her vehicle a
second time and drove away.  Ms. Fletcher panicked thinking the other
driver was going to get away.  Two people at the scene called 911 and located
the defendant’s vehicle a short distance away where it had stalled.  The
vehicle damage estimates and photographs in evidence depict significant damage
to both vehicles.

[26]        
Ms. Fletcher was petrified and shaking severely at the scene.  She
felt faint and nauseous.  Her physical symptoms included a burning sensation
and pounding in her head that caused her to ask someone if she was bleeding.  When
no blood was reported she began to worry that she might be bleeding inside her
head.  Firefighters and paramedics attended and one supported her head and neck
until she was given a neck brace, removed from the vehicle, placed on a spine
board and transported by ambulance to Royal Columbian Hospital.

[27]        
At the hospital she had an x-ray of her neck.  Ms. Fletcher was
told that the x-ray had revealed a possible neck fracture and a CT scan was
ordered.  She was told not to move while she waited several hours for the CT
scan.  Ms. Fletcher was extremely scared that she had a broken neck.  Ms. Fletcher
remained in a neck brace, confined to the spine board and was not permitted
pain medication or even water until the results of the CT scan became known.  Ms. Fletcher
was advised that there was no fracture, reassured, sent home with pain
medication and instructed to return if she experienced any numbness in her
extremities.  Ms. Fletcher left the hospital at approximately 5:00 a.m.,
over nine hours after she had arrived, and was driven home by her mother.

3.              
After the First Accident

[28]        
Given that Kevin was working in the United States at the time of the
first accident, Ms. Fletcher’s mother stayed with her for the following
day, during which she remained in bed.  During the days that followed she
experienced cognitive disruption, extreme nausea, dizziness and fainting.  She
described herself as feeling vulnerable and easily overstimulated by lights and
sound.  She was unable to read or watch TV.  It was uncomfortable to ride as a
passenger in a car.  She was suffering from headaches.  Her neck and back were really
stiff and her body was sore.

[29]        
Ms. Fletcher was also very concerned about being left alone and
felt her safety had been compromised.  She felt a constant flight or fight
impulse.  When her regular family physician, Dr. Heather McLeod, was not
available she saw a locum at her office and was prescribed painkillers, muscle
relaxants and anti-inflammatory medication.  Her mother drove her to that
doctor’s appointment and stayed with her until Kevin returned a few days later.

[30]        
Ms. Fletcher was homebound except for medical appointments.  Over
the next three or four weeks Ms. Fletcher’s mother and Kevin continued to
assist her and drove her to various appointments.  She would sometimes take a
taxi if necessary.  Eventually she was able to begin walking to appointments
for massage therapy at Legacies Massage Therapy (“Legacies”) and physiotherapy
at Sungod, both of which were within walking distance.  She was sometimes able
to remain out of the house for as long as four hours before increasing nausea,
headaches and dizziness would cause her to return home.  She had a large “goose
egg” on the side of her head for a number of weeks and fainted a number of
times in the months that followed the first accident.

[31]        
For two or three months following the first accident, Ms. Fletcher convalesced
at home, relying heavily upon the assistance of Kevin and her mother.  Kevin
took over most of the household chores, including shopping, cleaning, vacuuming
and taking care of their three cats.  He also drove her to appointments, in
addition to keeping her company because she did not want to be left alone.  When
Kevin was at work, her mother would keep her company, do the housework and
shopping and provide transportation.  After the first months, she was able to
do 30% of the household work, with Kevin doing 70%.

[32]        
Other symptoms following the first accident included left knee pain,
stiffness in her neck, numbness/tingling extending down her arms and into her
fingers, and tension and migraine headaches.  Her back symptoms spanned an
eight inch band across her lower back and she sometimes experienced associated
symptoms of shooting pain extending into her left buttock and left leg.  She
had milder tension headaches that seemed focused behind her eyes and more
severe migraine headaches that included sensitivity to light and sound.  Her
migraines typically began with stiffness in her neck that would extend over her
head “like a hood” and prove debilitating such that she would lock herself in a
dark room.

[33]        
Ms. Fletcher did not return to driving until November 2007.  When
she did begin to drive again, an activity she previously enjoyed, she was
anxious and nervous on the roadway and worried about other drivers.  She
returned to the repair shop on a number of occasions to ensure that all damage
done to her vehicle by the accident was adequately repaired.  When she and
Kevin became frustrated with the quality of the repairs to their vehicle, they
traded it in for two Hyundais.  They believed the larger vehicles would be
safer with features such as side and front airbags and Kevin did not want to
maintain and drive his 4×4 jeep in the city any longer.

[34]        
Ms. Fletcher remained under the care of her family physician, Dr. McLeod,
who prescribed time off work, physiotherapy and massage therapy.  Ms. Fletcher
attended physiotherapy approximately once a week for several months but did not
find that treatment particularly helpful.  She gained more relief from massage
therapy, which she received at Legacies as often as twice a week for some time
and less thereafter.  She also found aquatic or pool therapy and home exercises
helpful for both her physical and her cognitive symptoms.  Due to persistent
symptoms of dizziness and nausea, Dr. McLeod referred Ms. Fletcher
for assessment by neurologist Dr. Javidan, whom she saw on October 17,
2007 and February 29, 2008.  Although she felt that improvement was slow, there
were some improvements between the two visits to Dr. Javidan.

[35]        
Ms. Fletcher also returned to see her chiropractor of many years, Dr. Shepherd.
Although Dr. Shepherd had helped her with various issues in the past, she
experienced little relief with traditional chiropractic treatment following the
first accident and eventually stopped seeing Dr. Shepherd.

[36]        
On December 3, 2007, after consultation with Dr. McLeod and feeling
some pressure from her employer, Ms. Fletcher returned to work at Cinequip
on modified duties.  She was not to perform any heavy lifting or other
activities that would aggravate her injuries.  She tested the boundaries but she
was restricted primarily by neck and back pain to administrative tasks.  After
ten months, in October 2008, she resigned because it had become obvious to
her that she could not resume her full duties, and the initial plan was for
this position to be temporary because, as a warehouse job, it was not her
career path.

[37]        
All aspects of Ms. Fletcher’s life were adversely affected by the
first accident.  She was unable to participate in the 4×4 trucking and other
physically demanding recreational activities with her friends.  Intimacy and
her physical relationship with her husband were significantly impacted.  She
felt that she and Kevin had become hermits who were cut off from social
activities and connections, frequently declining invitations to engage in
activities and attend events.  Before the first accident she loved going on the
most challenging of carnival rides, but now goes only infrequently and cannot
risk any of the more challenging rides.

[38]        
Ms. Fletcher and Kevin became engaged in 2008 and were married on
September 26, 2009.  Ms. Fletcher testified that her enjoyment of her bachelorette
party in Las Vegas and wedding were negatively affected by the injuries from the
first accident.

[39]        
In October 2008, Ms. Fletcher obtained a position as project
coordinator with Panther Constructors Ltd. (“Panther”).  The position offered
better pay and the opportunity to work with designers and architects designing
and constructing for various events.  It was a job that involved significant
stress and very long hours.  Ms. Fletcher did well at Panther for some
time.  During late 2009 and early 2010 she worked on Live City sites for the
2010 Winter Olympics.  She worked extremely long hours, for up to 70 hours per
week for almost six months.

[40]        
After the Olympic projects were completed, the work and hours at Panther
became more normal between April and September 2010.  Ms. Fletcher
testified that it was an amazing place to work.  However, at the same time, Ms. Fletcher
was also breaking down as she came to the realization that she could not return
to the hands-on work about which she was so passionate.  She felt that her
chosen career was over.

[41]        
As a result, she started to suffer panic attacks and was having
difficulty with basic functions and thought processes.  While still working at
Panther, she contemplated suicide scenarios, but she never took any active
steps in that direction because of the effect her death would have upon her
parents and Kevin.  She did not speak with family or healthcare practitioners
about her suicidal ideation in 2010 as she attempted to hold on to what
remained of the woman she had been.  She felt telling people she was suicidal
would mean she had officially lost the person she was prior to the accident in
2007.

[42]        
She struggled to accept that she might be mentally ill and what that
could mean for her life, her friends and her family.  As she began to feel she
was losing control, she developed dysfunctional and obsessive behaviours.  She
began to pick at her skin.  She shopped compulsively for silly things to bring
her some instant gratification, which strained her relationship and led to
arguments with Kevin.

[43]        
Ms. Fletcher’s desire to control everything made her job that much
harder.  Inside she felt she was spiraling and there were a few episodes of
disassociation.  She gave an example of one such dissociative event when she
went grocery shopping and found herself in the middle of the cereal aisle, but
did not remember leaving her house, driving to the store or putting the loonie
in the cart.  She thought she might be dreaming.

[44]        
In September 2010, Ms. Fletcher was laid off by Panther due to a
shortage of work after the Olympics.  When she received notice of the lay-off
by registered mail she went through the shock of realizing she had no job,
followed almost immediately by feelings of relief that there would be no more
stress of working.  She remained off work for 11 months.  She collected
Employment Insurance benefits during the interval but did not apply for medical
E.I. benefits.

[45]        
Ms. Fletcher knew she needed to do something about her poor
emotional and mental health so she went to see Dr. McLeod who recommended
counselling and medication.  She began taking the antidepressant drug Paxil,
which she continued until early 2012.  It helped to control her intrusive
thoughts and her anxiety, but did not diminish her obsessive or compulsive
behaviours.  The medication also had the side-effect of interfering with her
regular emotions and caused her to become distant and emotionally unavailable.  She
felt drained and avoided interaction with people closest to her.  She lost
interest in socializing with friends and saw much less of them.

[46]        
Her relationship with Kevin also suffered.  She stopped sleeping in the
same bed as her husband and spent months on the living room couch.  Dr. McLeod
recommended that Ms. Fletcher find a therapist close to her home.  She chose
Charlene Kostecki, whose counselling sessions were helpful in working through
depression and dealing with anxiety and intrusive thoughts.  Ms. Fletcher
learned how to talk herself through anxiety and panic attacks by training her
brain to stop what it is doing.  She also felt guilty about her relationship
with Kevin, whom she described as a saint.  They attended a few counselling
sessions with Ms. Kostecki together to address their relationship and the
fact that Ms. Fletcher was no longer the person Kevin had met, fallen in
love with and married.  She said that she was a shell of her former self and
not the vibrant, bubbly wife and partner that he remembered.

[47]        
Ms. Fletcher’s relationships with her parents were also impacted as
she became increasingly frustrated with her difficulties and ongoing
disability.  She lashed out at loved ones, particularly her mother, to whom she
described herself as being really mean.  Ms. Fletcher and Kevin withdrew
approximately $11,000 from their RRSPs to support themselves, which had never
been necessary in the past.

[48]        
Before the first accident she and Kevin had only rarely received
financial assistance from others, but thereafter they became increasingly
reliant upon her parents who were not wealthy.  Her father borrowed money,
cashed in stocks or had to go without to provide financial assistance to his
daughter.  Such financial support came in the form of loans, some of which Ms. Fletcher
repaid when she received an advance payment from the Insurance Corporation of
British Columbia in relation to her claim.  She still owed her mother between
$20,000 and $25,000 at the time of the trial, whereas her father had forgiven a
similar amount before his death, which was to be considered her inheritance.

[49]        
Ms. Fletcher also continued to struggle with her physical symptoms,
primarily headaches and neck and back pain, which fluctuated with activity.  She
had not had a day without pain from the time of the first accident to 2011. 
Her left knee still bothered her, and some numbness and tingling in her
fingertips continued.

[50]        
While Ms. Fletcher was off work during early 2011, she sought a
creative outlet.  In order to turn her craft skills into something profitable, she
started a small business called Morningstar Creative.  She made greeting cards,
jewelry and small décor items, which she sold through her website and at
farmers’ markets and craft shows.  More recently, she began teaching card-making
classes to between 12 and 16 students for $25 a class.  The main reason she created
the business was for the satisfaction it gave her as she was going through a
particularly difficult time.

[51]        
Due to the ongoing effects of the first accident, Ms. Fletcher had to
rely upon her friend, Leanne Robb, Kevin and her mother to assist with the
heavier tasks required in getting to the events and setting up and taking down
the displays.  Those were tasks she could have easily done on her own prior to
the first accident.

[52]        
After 11 months off work, Ms. Fletcher had some improvement in her
psychological state on Paxil and with counselling and she told friends and
former colleagues that she was again looking for work.  During the summer of
2011 she learned of an opportunity to work for Comedy Central – Destination
Funny (“Comedy Central”).  She was scheduled to start work in mid-to-late
September.  She said that part of her was excited to be semi-involved in the
event industry in a position she believed was within her physical capacities.

4.              
The Second Accident

[53]        
Ms. Fletcher described traveling northbound on Schoolhouse Avenue
in Coquitlam on September 9, 2011, when the defendant, Mr. Simpson, drove
the white Chevrolet Cavalier, which was also heading north on Schoolhouse, into
a left turn across the path of the vehicle that she was driving.  Her mother was
the passenger.  Mrs. Rutter attempted to warn her daughter but only had
time to say “watch this guy” as the defendant’s vehicle moved from the right
lane into and across the left lane, leaving Ms. Fletcher no opportunity to
avoid a collision.

[54]        
The front of Ms. Fletcher’s vehicle collided with the front left
fender and driver’s door of the defendant’s vehicle.  Ms. Fletcher’s
vehicle sustained almost $3,000 in damage to the front end.

[55]        
The plaintiff and her mother testified that Mr. Simpson apologized
at the scene of the accident saying words to the effect of “Sorry, I didn’t
even see you”.

5.              
After the Second Accident

[56]        
As a result of the second accident, Ms. Fletcher’s ongoing neck and
lower back symptoms were aggravated and she felt some new symptoms on the right
side of her body.  The physical effects of the second accident persisted for
only a few months and Ms. Fletcher believed she had returned to her “baseline”
by approximately Christmas of 2011.  However, her anxiety about driving was
exacerbated and she continues to have what she described as a permanent feeling
of vulnerability or lack of safety.  She no longer enjoys driving or travelling
as a passenger, although she does feel somewhat better when she is the driver
and in control of the vehicle.

[57]        
Ms. Fletcher was still able to commence employment with Comedy
Central nine days later, as scheduled on September 18, 2011.  While
working at Comedy Central, Ms. Fletcher was in direct contact with 18
hotel managers and with Ticketmaster to coordinate accommodation and ticketing
packages.  She worked full-time earning $20 per hour until the job ended in
early December 2011 due to a lack of funding for the project.

[58]        
On November 17, 2011, the trial of Ms. Fletcher’s claim arising
from the first accident, which had been scheduled to commence on December 5,
2011, was adjourned and an advance payment was made on behalf of the defendants
in the amount of $50,000.  Ms. Fletcher used the funds advanced to pay off
credit card debt and pay back money that she had borrowed from her parents.  She
used funds to pay for hypnotherapy and other treatments, in addition to
covering basic living expenses as she had been off work for 11 of the preceding
14 months.  She had a veterinarian bill of a few thousand dollars, and she
bought an orthopaedic mattress in an attempt to ease her discomfort.  She also
spent approximately $1,500 on her craft business.

[59]        
Four months after the Comedy Central job ended, Ms. Fletcher learned
from her friend, Erin Salo, of an opportunity to work again as a project
coordinator, this time for Golder Construction (“Golder”).  She was hired to
commence a full-time contract position from April to December of 2012.  Based
on-site at the Ruskin Dam in the Maple Ridge/Mission area, her starting wage
was $20 per hour with no benefits.

[60]        
Golder is a subsidiary of Golder Associates, which is a global company
with roughly 9,000 employees.  Golder Associates is an employee-owned company
of consultants with environmental, mining and geotechnical divisions.  Golder
operates as a separate entity.  Ms. Fletcher’s job with Golder was and
remains an office job—100% clerical—at which she has had considerable success. 
She is responsible for high level reports and works in the area of finances.

[61]        
Ms. Fletcher had trouble remaining either seated or standing for
extended periods due to pain and discomfort.  While on contract with Golder and
without benefits, Ms. Fletcher missed between 10 and 15 days of work that she
was not entitled to pay and had to cash banked overtime, which would have been
paid out or used as extra vacation time.

[62]        
During mid-2012 when she was commuting to work in the Maple
Ridge/Mission area, Ms. Fletcher experienced increased pain in the region
of her coccyx.  While she had experienced some discomfort in that region before
the first accident and felt that the symptoms were aggravated by that accident,
it was not to the same extent.

[63]        
During the process of learning of and getting her position at Golder, in
February 2012, Ms. Fletcher received news that her father was diagnosed
with stage 4 liver cancer.  Immediate surgery was performed but he was given
only a matter of weeks or months to live.  Ms. Fletcher became directly
involved in his treatment and care.  However, taking Paxil to control
depression left her feeling disconnected and unable to access or regulate
normal human emotions.  Ms. Fletcher said that her inability to feel
anything made her feel like a horrible person and she decided to wean herself
off Paxil over several months.  She then felt better able to connect with
family and friends, but her anxiety and panic attacks returned.

[64]        
When the Ruskin Dam project was complete and her contract ended, Ms. Fletcher
moved to the Golder offices in Burnaby.  In May 2013, she was hired full-time
as a project controls administrator.  This position came with benefits and a
salary of $45,000 per year, which has since increased to $50,000 per year or
about $25 per hour.  The extended health benefits available to Ms. Fletcher
through her employer require pre-payment by employees who must then seek
partial reimbursement of such expenses.  The insurer has a subrogation policy,
pursuant to which it reserves the right to seek reimbursement of the funds paid
out under the Golder employee plan.

[65]        
In 2013, Ms. Fletcher was given the Collaborating for Success Award
at Golder, which came with a $2,000 taxable benefit.  She received her most
recent raise six months prior to the trial.

[66]        
In late 2013, Ms. Fletcher saw Dr. McLeod who recommended an
MRI of her coccyx and lumbar spine, but because of the delay she had a private
MRI.  After reviewing the results of the MRI, Dr. McLeod referred Ms. Fletcher
to a neurosurgeon.  She saw Dr. Gittens on May 12, 2014.

[67]        
When she saw Dr. Stewart in July 2014, she told her that her coccyx
pain worsened in 2012 and is now 100 times worse than it was earlier.  Ms. Fletcher
had an ergonomic assessment at Golder and she received a sit/stand workstation
and other accommodations.  In her testimony, she said that it was only painful
on sitting, and the sit/stand desk has made a significant improvement.  Her
coccyx symptoms decreased and administrative work was made more tolerable physically
as she could do everything standing.  She has not missed any work due to the
coccyx symptoms.

[68]        
However, she continued to suffer from headaches, neck pain and back
pain, and any sustained position causes her to become uncomfortable over time. 
Over the course of a five-day work week, chronic pain wears on her nerves and
reduces her energy levels and her tolerance.  By the end of the week, she is
physically exhausted and does her best to keep it together.  Some of her
co-workers are aware of her physical problems but few know about her ongoing
emotional and psychological issues.  There are weekends that she stays in bed.

[69]        
Ms. Fletcher does not have any plans to leave Golder.  However, she
is concerned about how long she will be able to continue in her present
position.  Recently, there was a large lay-off of Golder employees, reducing
the number from 80 to 30.  Seven of Ms. Fletcher’s friends and colleagues
at Golder were let go on a single day.  Her immediate supervisor, with whom she
had worked most closely and to whom she reported directly, and his boss, have
also since left the company.  Ms. Fletcher observes that Golder is facing
increasing competition and was due to be absorbed into the parent corporation,
Golder Associates, in January 2015.  In her current position, Ms. Fletcher
receives information about new projects and at the time of the trial she had
seen only smaller jobs on the horizon when compared to the larger scale
projects in which she had been involved previously at Golder.

[70]        
With the departure of Ms. Fletcher’s immediate superiors, along
with three of four members of the cost control team, she feels without support
in a position for which she has only limited on-the-job training, little
experience and no formal education.  She feels that she is in over her head in
many respects and the pressure, combined with her existing physical and
emotional problems is taking a toll.  She has a great deal of difficulty
getting to work each day and sometimes finds herself in tears en route.

[71]        
There are days when she calls in sick due to her anxiety, stress and
depression which leave her feeling unable to interact with people and the
demands of her job.  Ms. Fletcher used all of her allowed 12 sick days
during 2013 and drew upon banked overtime to maintain her income.  While she
missed some time due to her father’s illness, much time was lost due to her
emotional and anxiety issues.  An additional cause of her missed work was migraine
headaches which cause sharp pain, extreme sensitivity to light and sound,
nausea and vomiting.

[72]        
In cross-examination, Ms. Fletcher gave evidence that the parent
company, Golder Associates is rated among the top ten companies for which to
work.  They will accommodate employees who work part-time.

[73]        
If she did not continue at Golder, Ms. Fletcher would consider
going back to school.  She would attend Kwantlen College to take the interior
design program as the work would be creative and more sedentary.

[74]        
Over the years since the first accident, Ms. Fletcher has undergone
many treatments and been assessed by various treating health care
practitioners.  In addition to initial courses of physiotherapy and massage
therapy, in early 2008 Ms. Fletcher attended Karp Rehabilitation, where
she worked on core stability and strengthening, which helped her feel better, especially
improving her left knee.

[75]        
She also attended Canadian Medi-Pain Centre for spinal decompression
treatments for her back, which she thought might be helpful.  She still
receives a “bit of relief” from those treatments.  She underwent hypnotherapy
with Ms. Cam Oxendale, which she found extremely helpful in addressing her
anxiety, depression, obsessive compulsive behaviours and her panic attacks.

[76]        
She also tried acupuncture, Bowen Therapy, prolotherapy and
neurolinguistic programming as she considered and investigated numerous
possibilities to deal with the physical, mental and emotional issues arising
from the accidents, but she did not find such treatments helpful.

[77]        
Ms. Fletcher described a typical weekday for her starting about
6:45 a.m.  She usually drives in the morning because she is a better driver
than passenger, but she is shaky and can get teary on the way to work, usually
after she drops Kevin off at BCIT.  She is able to fulfill duties during the
work day but finds she is easily distracted and that anxiety can develop into
intrusive thoughts.  She is troubled by physical symptoms during the day but
can alleviate some discomfort by changing position.  Her coccyx is still
problematic when she remains seated.

[78]        
Since early 2014, Ms. Fletcher and her friend Erin Salo, who also
works for Golder, frequently go for walks as long as 5.5 kilometres during
their lunch breaks.  After work she picks up Kevin, drives home and makes
dinner.  On Wednesdays once per month she teaches a crafts class, and spends
about 20 to 24 hours per month preparing classes and doing crafts.  Some nights
she goes to group fitness class.  Other nights after dinner she is exhausted
and just watches television or goes straight to bed.

[79]        
In 2014, she also embarked on more rigorous fitness programs with
friends, including Tuesday night video workouts at the homes of various
participants and walking or hiking on the weekends.  Although it makes the neck
and back pain worse than in 2013, she has continued as she realised that
exercise would help her.  The hikes include one called the Coquitlam Crunch,
about four kilometres uphill and mostly stairs, which she did about four times,
and other 4 to 12 kilometre hikes.  She also continues to perform exercises on
her own at home with various pilates or strengthening DVDs in addition to
working on core strengthening.  She uses a treadmill, free weights and
therabands to exercise at home a couple of days per week.  With the additional
exercise she lost 25 pounds but had more pain in her neck and back.

[80]        
Since 2009 Ms. Fletcher has continued to do Bikram and other yoga
up to five days per week.  She can do most postures but some cause too much
stress on her neck and back.  She described Bikram yoga as an extremely intense
and enjoyable workout.

[81]        
With regard to housework, she testified in cross-examination that she
now does 75%.  Ms. Fletcher also said that she does almost 100% of the
shopping and cooking and most of the laundry.  She is able to do all areas of
housework although some are more difficult and all are done in pain.  If she does
cleaning, vacuuming and laundry all day it brings on pain, stiffness and
discomfort, especially in her lower back and left knee and it takes a day to
recover.

[82]        
In 2014 she went back to the PNE and tried two less challenging rides
which she found manageable.

[83]        
Ms. Fletcher would like to have children.  She loves them and it
brings her joy to see the world through their eyes.  She is concerned about
difficulties in physically caring for children, especially because any lifting
causes an exacerbation of her neck and back pain.

B.             
Kevin Fletcher

[84]        
Kevin, the plaintiff’s husband, is 32 years old, has worked as a
lighting technician since he was 15 years old and has always made a good living
in the lighting industry.  He continues to do part-time free-lance work at
present while studying electrical engineering at BCIT.

[85]        
Kevin met Ms. Fletcher, then Ms. Rutter, in July 2002 when she
was his supervisor at Showtime.  He observed her to work just as hard as anyone
else.  He also found her to be warm, lovely and fun to be around.  She kept the
atmosphere friendly on-site.  She was considered one of the top technicians who
never shied away from difficult tasks and was a good leader.  She was always
enthusiastic, happy to be there and fun to be around.  Mr. Fletcher described
the long work hours and physical nature of the job.

[86]        
Kevin and Ms. Fletcher began dating in July 2004 and moved in
together in September 2005.  They went camping, hiking, walking around the
neighbourhood and spent a great deal of time in his 4×4 jeep out in the back
country.  Despite long hours and days at work and rough rides on extreme
terrain, Kevin was not aware of Ms. Fletcher having any physical
limitations or restrictions of any kind.  Nor was he aware of any psychological
issues prior to the first accident.  She was always happy, easygoing, able to
deal with change quite easily and fun to be with.  She always had a good
attitude towards work and life in general.

[87]        
With respect to household chores, Kevin described a fairly even
distribution of work before the first accident, but conceded that Ms. Fletcher
may have done a little bit more than he did.  When they worked in the garden, Ms. Fletcher
helped with the digging and planting and mowed the lawn.

[88]        
Before the first accident, Ms. Fletcher was always able to find
work when she needed it.  She worked very hard and had built a good name for
herself in the industry.  She was on top of the list to be called for a show.  She
liked to build sets, do artistic design and figure out how to set things up in
the most efficient way.  She was always using her creative abilities and made
events special for clients who were always happy to have her on their shows.  She
was also creative at home and was always scrapbooking and making cards for
people.

[89]        
In 2005 and 2006, Kevin saw Ms. Fletcher as being in “perfect
health” and able to do whatever she needed to do without any trouble.  She was
very calm and able to deal with things and happy.

[90]        
Before the first accident, Kevin and Ms. Fletcher were planning for
him to go to school.  They had started to save money and planned for him to
attend classes in math and physics toward a return to school in September 2008.

[91]        
However, the car accident changed all of their plans.  Kevin was working
in the United States at the time of the first accident.  When he first saw Ms. Fletcher
following the first accident, he saw that she was extremely stiff and immobile. 
She was very upset, in pain and angry over what happened.  She was not able to
do anything around the house and spent most of her time lying in bed with hot
and cold compresses.

[92]        
As a result, Kevin did all of the chores around the house for several
months.  Ms. Fletcher felt badly that she was not helping around the house
and eventually started doing some light work, but Kevin testified he continued
doing most of the chores.  Generally after Ms. Fletcher would try to do something,
she would spend the next day on the couch or in bed because of the pain.  Kevin
says he is still doing a greater percentage of the household work, and
estimated a ratio of roughly 70:30 over the past five to six years.  Ms. Fletcher
is unable to take out the garbage and still calls as she nears the house so
Kevin can carry in the groceries.

[93]        
He would also drive Ms. Fletcher to and from appointments when he
was available.  He remembers Ms. Fletcher beginning to drive again in late
2007 but said she was afraid of other drivers being out to get her, a condition
which remains.  Before the first accident Kevin found she was a competent
driver who was generally calm and would not react much to other people.  Since
the first accident, Kevin finds it hard to be in a car with Ms. Fletcher
because she gets angry with other drivers, often loses her temper and yells. 
Even as a passenger she is on edge.  If a vehicle beside her starts to move she
will make him aware.

[94]        
After Ms. Fletcher returned to work in December 2007, she seemed to
develop a short fuse.  She was not as tolerant as she had been and was
frustrated she was not able to do all her usual work.  Even when small things
would happen outside of the norm she would not be able to react in a normal and
calm way.  She had temper tantrums and sometimes threw things, behaviours Kevin
had never observed in Ms. Fletcher before.

[95]        
Between 2008 and 2010, Ms. Fletcher began to exhibit signs of
depression.  She was upset that she was not able to do her normal things and
that they were not able to go on trips with friends.  She began to seclude
herself and turn down invitations to parties.  By the end of the work week, she
was exhausted and wanted to stay at home, which was also not typical before the
first accident.

[96]        
In addition, they had very few parties after the first accident because Ms. Fletcher
was not able to get the house ready the way she wanted it.  She was very upset
by this as it is in her nature to plan parties.  Nor was she able to
participate in 4x4ing with him, though she did attend to see the people on a
few occasions but did not travel in the rough terrain anymore.

[97]        
When he began attending BCIT in 2010, he did so with a lot of help from
his father-in-law who had always wanted him to go to school.

[98]        
For a time following the first accident, the intimate relationship
between Kevin and Ms. Fletcher basically did not exist.  Still, to this
day, Kevin cannot really give her a big hug as it ends up hurting her back.  When
intimate relations did return, it was not the same because of Ms. Fletcher’s
back pain.  Those issues caused a lot of stress and strain on the relationship.

[99]        
Kevin and Ms. Fletcher had planned to have children after Kevin
finished school and established his new career.  However, they are now concerned
about possible complications with injuries and pregnancy and have thought of
adoption to eliminate such problems.  Kevin also expressed concern with Ms. Fletcher’s
short fuse and how she will react to children.

[100]     Kevin also
noticed Ms. Fletcher beginning to shop a lot more after the first accident
as an outlet for her frustration or to fill a void by buying things.  She had
been reasonably frugal before the first accident but began to buy frivolous
things and spend money without speaking or consulting with him about
purchases.  Such expense added to the financial burden which they could not
really afford but it helped her be happier.

[101]     After the
first accident, when Kevin and Ms. Fletcher became frustrated with the
quality of the repairs to their vehicle they cleaned it up and prepared it for
sale as best they could.  It was a fully loaded 2006 Matrix which appeared to be
in reasonably good condition.  As they did not believe they would be able to
sell it privately with its history, they concluded the best option was to trade
it in at a dealership, which they did.

[102]     When Ms. Fletcher
ceased employment with Cinequip and began to work for Panther, Kevin testified
that she saw the new job as being in the same realm of industry with the
possibility of design work.  However, as the job progressed, she realized she
was not going to be involved in design, which caused her more stress.  Ms. Fletcher
was unhappy that she was stuck in the office doing paperwork.  When she was
eventually laid off she was initially quite happy but in the weeks and months
that followed she entered a deep depression.  She was not able to cope and
ended up creating a futon fort in the living room where she remained at all
times.  She just stayed in the living room rather than coming to bed.

[103]     After
about six months, a prescription for Paxil and seeking some therapy, Ms. Fletcher
started to emerge from that dark time.  She began to work toward starting her
own crafts business making custom cards and other items.  She made items to take
to farmers’ markets with her friend, Leanne Robb, during the summer of 2011.  However,
as a result of her injuries, Leanne or Kevin had to help her move the heavy
objects and supplies at the beginning and end of the day.  Before the first
accident, Ms. Fletcher was capable of carrying such items and performing
such tasks on her own.

[104]     During the
summer and fall of 2011, Ms. Fletcher was still experiencing neck pain and
back pain which often led to migraine headaches and made it difficult for her
to get up and go out.  She was also taking Paxil, which Kevin observed made her
very flat.  While the drug seemed to eliminate the highs and lows, Kevin found
she was not responsive to anything.

[105]     After the second
accident on September 9, 2011, he noticed reports of a slight increase in pain
but from Kevin’s perspective the physical effects of the second accident
appeared to have been relatively short-lived.  He did not notice any
significant change in her physical condition or abilities.  She was able to
start her job with Comedy Central as scheduled, which was her indirect way of
getting back into the entertainment industry, but that proved to be
short-lived.

[106]     When Ms. Fletcher’s
father was diagnosed with cancer in February 2012, she did not respond
well.  She began to develop some obsessive symptoms as she tried to control her
environment, and with her father’s illness she decided to go off Paxil so she
could feel more of what was going on and not be a robot.

[107]     Kevin
testified that when Ms. Fletcher started working with Golder she seemed
happy at first.  She was in the field where she thought she would be more
involved and the work would be more interesting.  However, the position soon
turned to more paperwork in which she does not have much interest.  She also
continued to struggle with neck pain, back pain and headaches and also started
to complain that her tailbone was starting to hurt as a result of sitting.  Kevin
observed that she is not happy going to work in the morning.

[108]     During her
father’s illness, Ms. Fletcher put on a brave face for everyone else and
then collapsed at home.  She would spend days in bed, unable to cope, which was
a pattern Kevin had observed when Ms. Fletcher was having trouble coping
before her father’s illness.  Since her father died on October 14, 2013, Ms. Fletcher
still spends a lot of time in bed, sometimes days at a time.  She still cannot
interact with others on a regular basis and continues to experience back and
next pain.

[109]     Lately the
Fletchers have been revisiting the possibility of Ms. Fletcher returning
to school to pursue interior design.  Because she is not happy with her current
position and is not able to do the physical jobs, she is looking at interior
design as an alternative by which she could use her creative skills.  According
to Mr. Fletcher’s inquiries, such a program would require another three to
four years in school at a cost of $4,000 or $5,000 per year.

[110]     At the
conclusion of examination in chief, Kevin emotionally described his wife: “She
is a drastically different person than the one I originally met and I really
wish I could have her back.”

C.             
Robert Rutter

[111]     Robert
Rutter, Ms. Fletcher’s father, died on October 14, 2013.  Mr. Rutter
was diagnosed with stage 4 liver cancer in February 2012.  His evidence was
recorded at a video deposition on March 27, 2012.  He and his wife lived only a
five minute walk from their daughter’s home and saw her every couple of days.

[112]     Mr. Rutter
described his daughter’s childhood as normal and happy with a very close family
life and close relationships with her parents.  She was an average student who
was very physically involved in swimming and trampoline.  He recalled she was
bullied in junior high school and his account of that and other events on his
daughter’s early life, her academic and vocational pursuits were consistent
with the evidence given by Ms. Fletcher.

[113]     Mr. Rutter
described his daughter completing a program in stagecraft, which he described
as her desired career path.  She wanted to work in the entertainment industry
and thought of doing stage work for Cirque du Soleil.  She loved physical work
with props and painting and did heavier jobs with wiring and equipment.  He was
not aware of any physical or psychological issues for his daughter before the
first accident.  She liked camping and hiking and was quite a physical person.

[114]     Mr. Rutter
remembered his daughter being fully employed before the first accident.  She
sometimes worked two jobs and as many as 12-14 hours per day performing jobs
“almost like a roadie for large events.”  She did not have to rely upon him for
financial support beyond a few gifts of cash from father to daughter of perhaps
$500 per year.

[115]     Following
the first accident, Mr. Rutter noticed that his daughter’s ability to get
around was severely impaired.  She was frequently bed-ridden because her back
was tender and sore.  She improved over time to some extent and was able to get
back to work but at a desk job which was not her preferred work.  He also
noticed she cannot lift anything of any weight.

[116]     Before the
first accident she was very outgoing and friendly.  However, Mr. Rutter
noticed changes in his daughter’s emotional state after the first accident.  He
found her to be more aggressive and argumentative, which was not at all typical
for her.  She would fly off the handle and was more emotional than she had been
in the past.  She was also a little bit more withdrawn.  While he had noticed
some improvement with psychotherapy, she was nowhere near what she was prior to
the accident.

[117]     Following
the first accident, Mr. Rutter loaned his daughter and Kevin approximately
$40,000, some of which was repaid.

[118]     Mr. Rutter
did not notice any change in his daughter’s condition following the second
accident.  At the time of his testimony, she had recent improvement in her
condition with psychotherapy, but physically she was still impaired.  An
example was Ms. Fletcher bowling and being in bed the next day with neck
and back pain and spasms.  Prior to the first accident he had known her to bowl
with ease.

[119]     When asked
whether his daughter was back to her old self, he answered “definitely not.”  She
is unable to deal with stressful situations the way she could before.  He
indicated that she becomes overwhelmed and sometimes explodes with emotion and
does not deal with such situations on a rational basis.  This was definitely
not typical of his daughter before the first accident.

[120]     Mr. Rutter
stated that he was aware of his daughter’s wish to have children and that she
was concerned it could be difficult for her.

[121]     In cross-examination,
Mr. Rutter described his daughter as very frugal prior to the first
accident, whereas after that accident she was not.  He said that she had been
paid an advance on her claim, but it is pretty much gone.  He described her
trying to start a business and spending money on other things he did not
believe were appropriate.  When she then did not have sufficient funds for
rent, he felt it was up to him and his wife to assist.  He said his daughter
had become an impulsive buyer which was also uncharacteristic.

[122]     Under
cross-examination Mr. Rutter also described his daughter when driving as
nattering on about all other drivers in a non-stop verbal tirade.

D.             
Marion Rutter

[123]     Marion
Rutter, Ms. Fletcher’s mother, is 68 years old and worked as a public
school teacher for seven years but took some time off when she had Ms. Fletcher
and became a fine arts educator when she returned to work.  She has since
retired.  Her evidence about her daughter’s childhood, her time at school, and
her academic and vocational history was consistent with the evidence from Ms. Fletcher
and her father.  She added that Ms. Fletcher had, as a young child, been
enthralled with Cirque du Soleil and she had the goal of attending its school
in Montreal.  She was bilingual but she found out she needed years in the
industry first.

[124]     Mrs. Rutter
described her daughter’s involvement in numerous family celebrations for which
she was in charge of decorations and setting up the backyard and the deck.  She
was a very creative, active, happy and sociable girl who was also somewhat
vulnerable.  She had a strong work ethic and always seemed to be seeking some
form of employment or creating some sort of employment for herself.  She wanted
to work in the entertainment industry and directed her education and work
experience toward that end.

[125]     Mrs. Rutter
remembered her daughter being involved in one motor vehicle accident before the
first accident, but did not recall any lasting effects of such a collision. 
When asked about her daughter’s condition in the years leading up to the first
accident she said she was in very good health both physically and mentally.  She
was very strong and wanted to continue doing things that would further her
career.

[126]     When Mrs. Rutter
learned of the first accident by telephone from her husband, she went to meet
her daughter at Royal Columbian Hospital.  Before her daughter was discharged
from the hospital, Mrs. Rutter was told someone had to stay with her
overnight because they were concerned she might have a concussion.

[127]     Mrs. Rutter
stayed with her daughter for the first few days following the first accident,
during which time she observed that her daughter could barely move.  She said Ms. Fletcher
was worried about going back to work and her finances.  Mrs. Rutter helped
prepare meals for her daughter, tried to make her comfortable, observed her,
looked after her pets and took her to her family doctor.  Even after Kevin
returned, Mrs. Rutter continued to assist her with the shopping, meal
preparation and driving her to appointments when Kevin was at work.

[128]     Before the
first accident, her daughter was financially independent.  Since the first
accident, she has loaned her daughter roughly $25,000, in addition to the
$40,000 she borrowed from her father.

[129]     Previously
Ms. Fletcher was always patient and she was able to discuss any topic with
her without being judged or criticized.  During the interval from 2008 to 2010,
Mrs. Rutter found her daughter to be frustrated, impatient, short-tempered
and angry with her.  Mrs. Rutter noticed that Ms. Fletcher started to
attempt to order her parents’ lives and tell them what they should be doing. 
She became more distant.  Little things would agitate her.  She was not
interested in doing any parties anymore.  She seemed to lose her direction or
decisiveness and was really anxious about her future.  Her mobility was limited
and she suffered a lot of migraines.  She seemed to have less fun and laughter
in her life.  She was fearful of what she could or could not do with her body
and became very anxious about any activity that might aggravate her back or
give her a headache.  Mrs. Rutter said she heard a lot of:  “I can’t do it
anymore”.

[130]     When asked
about her daughter’s condition in late 2010 and early 2011, Mrs. Rutter
recalled her “being a basket case in all parts of her life.”  She was really
anxious and depressed about not being able to manage the pain and headaches. 
To her, it felt like her daughter’s world was shrinking, getting smaller and
smaller.  She also remembered her daughter being involved in craft fairs.

[131]     Mrs. Rutter
was a passenger in her daughter’s vehicle when the second accident occurred. 
Her account of that event is consistent with that of Ms. Fletcher.  After
the second accident, Mrs. Rutter indicated that her daughter had a stiff
neck, back and headaches.

[132]     On
February 2, 2012, her husband was diagnosed with cancer and given six to twelve
months to live.  Mrs. Rutter said her daughter was initially shocked but
then became very angry with her father, who had been having symptoms for some
time before seeking treatment.  Initially, her daughter ended up spending a lot
of time with her father at the hospital as he was recovering from surgery.  Once
he began chemotherapy and had chosen to die at home, she came over less and
less but still tried to be supportive of him.  She had conversations with him
and even cut his hair.  Eventually, he was moved to a hospice where she and her
daughter visited him every evening.

[133]     Following
the death of her husband, Mrs. Rutter thought her daughter would be more
of a comfort to her, but that was not the case.  Instead, she feels her
daughter is angry with her and finds it very difficult to have conversations
with her.  Mrs. Rutter feels the compassionate person she raised is not
there.  She feels like she has lost two people in her life; the daughter she
used to have and her husband.

E.             
Stephen Matthews

[134]     Stephen
Matthews met and hired Ms. Fletcher in the late 1990s when he was rentals
manager for Showtime.  Ms. Fletcher began working on Showtime’s call list
of roughly 20-25 people.  He hired Ms. Fletcher because she had a very
positive attitude and a keen interest in the industry, along with the drive and
physical ability required.  Mr. Matthews’ evidence regarding the heavy
physical work required of his employees was consistent with the evidence given
by Ms. Fletcher and others in that respect.

[135]     Mr. Matthews
also gave evidence of the prospects and fortunes of individuals who work for
him at present.  Within a year or two of starting out, his employees earn in
the range of $20-$22 per hour.  Those with between five and ten years of
experience earn between $28 and $32 per hour and those with more than ten years
can earn more than $32 per hour.  He indicated jobs such as those at Showtime
could be a stepping stone for people in the industry and he saw Ms. Fletcher
as one of those people with drive, a good attitude and good interpersonal
skills.  He said: “She had what I was looking for.”

[136]     When asked
whether he was aware of any accident in which Ms. Fletcher was involved,
he remembered calling her around only to learn that she was unable to perform
the required duties and their communication declined after that.

F.             
Leanne Robb

[137]     Leanne
Robb met Ms. Fletcher during the fall of 2004 on a 4X4 “wheeling” trip. 
She remembered getting up early and spending full days on the mountain riding
in the trucks with their boyfriends, later husbands.  For the first few years,
they would go wheeling as often as twice a month, as well as go camping and out
for dinners together.  She described Ms. Fletcher as very strong in mind
and body.  She was feisty, dependable and someone you want to be with if you
were in trouble.  She loved the outdoors, could chop wood with an axe and had a
lot of parties.

[138]     After the
first accident, Ms. Robb felt as though she had lost her 4×4, craft and
camping buddy.  She described wheeling as being hard for anyone, even without
injuries.  Ms. Robb believed Ms. Fletcher had attempted to 4×4 again
following the first accident but found it too difficult.  Ms. Robb also
said it was the loss of Ms. Fletcher’s physical abilities that really
shook her.  She became apprehensive and fragile and that was not like her.  She
became almost like a hermit.  Ms. Robb said she could see the depression
and remembered asking Kevin if Ms. Fletcher would come out only to have
him say that she would not.  She saw Ms. Fletcher as plagued by the first
accident and it was weighing her down.  As a friend she thought she was
suffering from depression.  She was not the vivacious, bubbly, loud Danica.

[139]     In May
2011, Ms. Fletcher and Ms. Robb began doing crafts pretty intensely
and attended craft fairs frequently between July and Christmas of that year.  Ms. Fletcher
participated but it was hard on her body and eventually she stopped coming
altogether.  Ms. Robb would then take her crafts to the markets to sell
and give her the money.

[140]     Ms. Robb
gave evidence of assisting Ms. Fletcher, along with Kevin, as she
struggled with the transporting and setting up tents, tables, chairs and other
items for the craft fairs.  Ms. Robb would sometimes pick up Ms. Fletcher
and her material in her truck and observed Kevin helping bring things down the
stairs.  When there was lifting to be done, Ms. Fletcher could not do it.

G.            
Erin Salo

[141]     Ms. Erin
Salo met Ms. Fletcher while they were both attending the stagecraft
program at Douglas College.  Since then, they have studied, socialized and
worked together for a number of employers.  Ms. Fletcher and Ms. Salo
worked together at Showtime, Panther, and Art of the Party before they both
ended up in their current positions working for Golder, though Ms. Salo
works for the parent company Golder Associates.  She testified to Ms. Fletcher’s
strong work ethic and her enthusiasm.

[142]     Ms. Salo
knew Ms. Fletcher very well before the first accident as they were part of
the same social circle of couples and had camped in tents, travelled and
socialized with her in the past.  She described Ms. Fletcher as extremely
bubbly, with an effervescent personality and someone who could work, go out
later and stay until the end of the party.  She had a lot of energy and was
extremely happy.

[143]     Ms. Salo’s
evidence with respect to very physically demanding jobs and long hours at
Showtime and Art of the Party prior to the first accident was consistent with Ms. Fletcher’s
evidence on such issues.  She had the opportunity to work with Ms. Fletcher
and recalled “new guys” on the job being shocked by her strength and being
challenged to lift as much as she could.  Ms. Fletcher had no difficulties
with the heaviest of tasks and was usually one of strongest on a crew.

[144]     After the
first accident, Ms. Salo noticed a slow down with less frequent social
activity, lower energy levels and exhaustion.  She gave examples of having
plans with Ms. Fletcher that just did not happen, with back pain, neck
pain, a migraine or a headache or some combination thereof offered as reasons. 
She still retained her innate cheerfulness but was less outgoing, less
energetic and prone to mood swings and lethargy which seemed to be brought on
by pain.

[145]     After the first
accident, when Ms. Salo worked with Ms. Fletcher at Panther, she
noticed she had a high number of absences.  It was not unusual for her to call
in sick when she would wake up in the morning and be in pain and not be able to
come to work.  Ms. Salo was aware of the second accident but did not
notice any change in Ms. Fletcher’s condition thereafter.

[146]     Ms. Salo
and Ms. Fletcher remain in close contact through email and during their
lunch-time walks at work.  She said Ms. Fletcher still has issues and just
cannot make it into work in a pattern similar to what she had observed at
Panther.

[147]     Ms. Salo
was asked about her knowledge of Ms. Fletcher’s career plans or goals and
her future prospects at Golder.  She explained that she and Ms. Fletcher
had both studied stagecraft, which is directed at theatre but many graduates
end up working in the concert, wedding and film industries in which there is a
lot of work.  Ms. Fletcher always wanted to be in a creative industry,
making things such as set pieces and did not mind the hours expected in the
event industry.

[148]     With
respect to her understanding of opportunities at Golder, Ms. Salo
confirmed Ms. Fletcher’s evidence that it is pretty standard for Golder
employees to have one or more degrees such as engineering.  With Ms. Fletcher
holding only a diploma there would be limits on how high she can rise in the
company and the kind of salary she can expect.

H.             
Expert Evidence

[149]     The
plaintiff adduced expert evidence from various medical experts whose written
opinions are in evidence:  Dr. Heather McLeod, family physician; Dr. Nairn
Stewart, physiatrist; Dr. Gordon Robinson, neurologist; Dr. Winston
Gittens, neurosurgeon; Dr. Frederick Shane, psychiatrist; and Dr. Larry
Krywaniuk, neuropsychologist.  With the exception of Dr. Krywaniuk, all of
the experts were cross-examined on their opinions.

[150]     Also in
evidence are written expert opinions and testimony from Ms. Giovanna
Boniface, occupational therapist and certified life care planner; Mr. Hassan
Lakhani, economist; and Mr. Carey Scarrow, vehicle appraiser.

[151]     The
defendants did not call any expert opinion evidence in either action.  Although
they had opinions from medical experts, that evidence had been obtained prior
to the first trial date in 2011 and was thought to be out-of-date at this trial
date.  Further, the defence chose to rely on the evidence of the plaintiff’s
witnesses with regard to the significant degree of recovery made by the
plaintiff.

[152]     Due to the
number of expert witnesses and the nature of the information and diagnoses, the
following summary of the expert evidence includes some lengthy quotations from
the reports.  The quotations will be referred to in the Discussion section
below.

1.              
Dr. Heather McLeod, Family Physician

[153]    
Dr. McLeod has been Ms. Fletcher’s family physician since May
2003.  She was accepted as an expert qualified in the areas of family practice
with a focus on obstetrics.  Dr. McLeod prepared opinions dated June 19,
2009, July 13, 2011 and July 20, 2014.

[154]    
In the first report, Dr. McLeod listed the issues reported by Ms. Fletcher: 
left side of head, and feelings of dizziness and nausea; right side of neck;
left side of neck; low back; and left hip, the latter four relating to pain.  On
the November 27, 2007 visit, Ms. Fletcher reported that most of her
concussion symptoms were gone.  On the May 12, 2009 visit, she reported that
she did hot yoga four to five times per week and aquacise.  She could not do any
bowling or 4x4ing, and with regard to household chores she could not do any
vacuuming.  Headaches were once per week.  She had a full range of motion of
her thoracic spine, shoulders and lumbar spine.  Dr. McLeod felt her neck
still had another 50% to go for complete recovery, and that, overall, the
plaintiff was “50 to 60% recovered with a lot more neck and upper back progress
to go.”

[155]    
In the next report on July 13, 2011, Dr. McLeod notes that she
recommended a psychiatrist to assist with the ongoing fear and anxiety.  With
regard to prognosis, it will be “linked to how she recovers physically as this
will directly affect her psychiatric issues.”

[156]    
Ms. Fletcher did not see Dr. McLeod from October 25, 2011
to January 17, 2013.

[157]    
The July 20, 2014 report contains a summary of her opinion and includes
the following:

A summary of her injuries as
of the July 13, 2011 letter are:

1.     mild to
moderate concussion -partial remission

2.     cervical
spine strain and anterior and posterior neck muscle spasm/strain(whip-lash) in
partial remission

3.     mild
thoracic outlet syndrome

4.     low back
or lumbar strain with periodic sciatic distribution pain

5.     moderate
tension headaches and migraines

6.     post
traumatic stress disorder

7.     generalized
anxiety disorder

8.     depression

9.     pain
disorder

2. My diagnosis and prognosis.

1.     chronic
neck and low back strain.  This started with the first mva and continued
through to the 2011 mva with little progress.  This will be her most difficult
issue in the future.

2.     Coccodynia. 
This is new with the second mva of Sept 9 2011.  It is possible that this
started with her desk job after sitting most of the day with the pre-existing
back issues.  This may continue for as long as she has this type of job.

3.     Left
sciatica and the disc bulging at L-5/S-1 and [] less so at the L-4/L-5 level.  This
is new and could be a chronic issue for the future needing ongoing
rehabilitation.

4.     Anxiety
and depression.  She is helped by an exercise program and has weaned herself
off medication and stopped seeing the therapists.  These issues are not gone
but simply doing better at this time.

5.     L knee
strain.  She has embarked on a more vigorous program of work-outs that may have
exacerbated her early osteoarthritis.

6.     Muscle
contraction and periodically vascular headaches.

I do believe that her neck and low back pain will leave
Danica at least partially disabled regarding what job she can do, loss of
recreational activity she once enjoyed.  She had some mild pre-existing lumbar
changes on x-ray prior to the first mva but not the sciatic symptoms and the
mri changes to correlate with her symptoms.  She needs to consider starting a
family very soon and these injuries will certainly impact her pregnancy and
delivery and then caring for a baby as well.  Chronic pain will predispose
Danica to depression and anxiety and this will come and go in her life,
depending on the circumstances.

I always wanted Danica to have weekly physio and massage
therapy but she could not afford it.  They had to modify her work station at
work.  Housekeeping at home was not easy for her and no vacuuming or floors
could be done.  She needs a bone scan for her coccyx.

I anticipate she will need weekly or q [sic] 2 week physio
and massage and continue the chiropractic for the spinal decompression weekly. 
This may need to go on for the next year or two.

If she does become pregnant this
will likely need to intensify as the pelvis and low back are normally put under
alot of strain and this could be very difficult for her to manage without
medication.  She will likely need a nanny who can help with the baby and
housework for the first year.  Ongoing weekly housecleaning after the first
year might be necessary.

[158]    
In cross-examination, Dr. McLeod was responsive to most questions. 
However, she could not respond to the apparent disconnect between Ms. Fletcher’s
long work hours in the winter of 2009-2010 and her self-report of pain at 8 out
of 10.  She did acknowledge the apparent inconsistencies between her
understanding of Ms. Fletcher’s residual pain from the prior accidents and
previous depression.

[159]    
Dr. McLeod also clarified in cross-examination the conclusion in
the July 20, 2014 report regarding the coccodynia being new with the second accident
of September 9, 2011.  She testified that it had been there since 2007, as
noted by orthopaedic surgeon Dr. Kokan.  She also acknowledged that with
the delay in reporting symptoms of coccodynia, it was difficult to draw a
connection between the accident and the symptom.

[160]     When
cross-examined with respect to the evidence regarding the efficacy of spinal
decompression therapy, Dr. McLeod stated that she would be more likely to
tell her patients to try decompression if they have tried everything else.

2.              
Dr. Nairn Stewart, Physical Medicine and Rehabilitation
Specialist

[161]    
Dr. Stewart saw the plaintiff twice and prepared written opinions
dated February 25, 2010 and July 18, 2014.  Dr. Stewart was accepted as an
expert qualified to give opinion evidence in the areas of her specialty in
physical medicine and rehabilitation.

[162]    
In the report of February 25, 2010, Dr. Stewart recommends that Ms. Fletcher
take a yoga class for the stretching and relaxation benefits of yoga.  She also
recommended a personal trainer for a gym and aquatic program as well as psychological
counselling for anxiety and pain management.  Dr. Stewart understood that
massage therapy assisted Ms. Fletcher and recommended that continue every
two weeks.

[163]    
In cross-examination, Dr. Stewart agreed that rather than full
recovery from the prior motor vehicle accidents, she would opine that Ms. Fletcher
had largely recovered.

[164]    
Dr. Stewart’s July 18, 2014 report contains the substance of
her opinion and includes the following:

It continues to be my opinion that Ms. Rutter sustained
soft tissue injuries to her neck and back in that accident and that her
symptoms of those injuries have been aggravated by increased muscle tension. 
Her emotional distress resulting from the accident has contributed to her
pain.  As anticipated, she has continued to experience neck and back pain and
headaches resulting from the 2007 motor vehicle accident.

Ms. Rutter also complained of worsening pain in her
coccyx (tailbone) since the 2007 accident when I saw her in July 2014.  However,
she had not reported that symptom when I saw her in 2009.  Dr. Kokan
recorded that the coccygeal pain was present prior to the 2007 accident and was
aggravated by that accident.  In my opinion it would be reasonable to conclude
that that was the case.

Ms. Rutter derives significant symptomatic relief from
massage therapy and spinal decompression treatments from a chiropractor.  In my
opinion it would be reasonable for her to continue both types of treatment,
each every two weeks, alternating weeks so that she is having one or the other
treatment every week.

It would be advisable for her to continue to exercise
regularly, but to a degree that does not aggravate her symptoms.

Ms. Rutter reported that her low mood is better
controlled than it was earlier after the 2007 accident.  However, in accordance
with Dr. Shane’s recommendation, I would recommend that Ms. Rutter
have ongoing access to psychological counselling.

With regard to her work, my recent assessment of Ms. Rutter
indicates that she has poor balance in her life in that she spends her evenings
resting and feels exhausted by the end of her work week, to the point that she
has to spend every second weekend in bed.  She also misses work often because
of her symptoms.  This is not a sustainable situation.  In my opinion, because
of her chronic pain and low mood resulting from her injuries in the 2007
accident it would be preferable for Ms. Rutter to work three or four days
of the week rather than full time and for her to have mid-week breaks (that is,
that she work Monday, Wednesday and Friday, or Monday/Tuesday and
Thursday/Friday, to allow her to recover better from her work days rather than
becoming progressively sore and tired over her workweek.  This would probably
also provide her with more energy to pursue activities outside of work in the
evenings and on weekends.

It has now been seven years since the 2007 motor vehicle
accident and it is likely that Ms. Rutter will continue to experience all
of her current symptoms and limitations resulting from her injuries in that
accident in the future.

She would be unable to do physically demanding work because
of her injuries and is best suited to work at the sedentary to light level of
physical activity, with the flexibility to change her work tasks and position
periodically throughout her workday.  She will continue to require good
ergonomics and a sit/stand workstation in any future office work.

Ms. Rutter will continue to be limited with respect to
more strenuous household and leisure activities in the future much as at
present because of her injuries and 2007 accident.

Ms. Rutter’s injuries in the
motor vehicle accidents are unlikely to have a significant adverse effect on
any future pregnancies.  However, it is likely that Ms. Rutter will
require assistance with childcare when her children are at the infant and
toddler stages of development, because of the physical demands of caring for
young children.

[165]     In
examination-in-chief, Dr. Stewart clarified the nature of Bowen Therapy as
being a type of gentle massage therapy.  When cross-examined with respect to
her recommendation for spinal decompression and massage therapy, Dr. Stewart
admitted that generally passive therapies are not indicated but Ms. Fletcher
experienced some relief.  She agreed that spinal decompression is somewhat
controversial and has not been adequately studied but she recommended such
measures only on the basis of symptomatic relief.  Dr. Stewart also agreed
that spinal decompression may have a placebo effect and that similar relief may
be obtained from a hot bath.

[166]     Under
cross-examination, Dr. Stewart agreed that if the history provided by the
patient is inaccurate, it may lead to inaccurate medical opinions.  Ms. Fletcher
told her that she spent every other weekend in bed, and Dr. Stewart
accepted that statement although it was not contained in any other medical
report which she had reviewed.  She did not know how it was co-incident with
hiking the Coquitlam Crunch and did not ask about the other weekends although
she was aware of walking six kilometres three times per week.  Dr. Stewart’s
opinion did not change when she was made aware of the evening and weekend time
spent by Ms. Fletcher on her craft business.  Her opinion was not affected
by learning that Ms. Fletcher did not see her family doctor for a year in
2012.  The discrepancy in the reporting of the coccyx pain did not cause
particular concern to Dr. Stewart.

[167]     Dr. Stewart
did not know or would not acknowledge that Bikram yoga was physically
demanding.  However, it was her opinion that bending and lifting are the causes
of the pain that make it difficult for Ms. Fletcher to do housework or
would impede child-rearing.

[168]     Dr. Stewart
assumed from Ms. Fletcher’s statement that she was a “little bit stiff” at
the end of the workday that that meant that there was also increased pain.

[169]     In re-examination,
Dr. Stewart stated that patients with chronic pain are sometimes prepared
to try almost anything to seek relief from their symptoms, including even less
traditional or controversial therapies.

3.              
Dr. Gordon Robinson, Neurologist

[170]    
Dr. Robinson is a neurologist who was accepted as an expert
qualified to give opinion evidence in the area of his expertise in neurology,
including the assessment and treatment of headaches.  Dr. Robinson saw Ms. Fletcher
twice and prepared written opinions dated March 9, 2011 and June 9, 2014.

[171]    
In the report of March 9, 2011, Dr. Robinson noted that initially Ms. Fletcher
had a constant headache that began to improve a year or more following the
accident:  “Headaches continue to occur 3-4 times a week, lasting hours to
days.”  There were at that date frequent tension headaches and occasional
migraines.  In testimony, Dr. Robinson stated that it was significant that
after one year the more severe headaches were improved.

[172]    
He noted her considerable emotional upset following the accident and
opined that it was a generalized anxiety disorder followed by feelings of
depression, stating “[h]er level of anxiety and feelings of panic are probably
important aggravators to her headaches.”  He believed that “her persisting headaches
are a combination of her chronic neck pain and mood disorder.”

[173]    
With regard to treatment, he stated that treatment of chronic headache
is usually difficult and the best advice is to maintain an active lifestyle. 
Medications are often unhelpful, but botox injections to her head, neck and
upper back were recommended.  Dr. Robinson believed that “successful
management of her psychological distress is critical in her eventual
prognosis.”  Psychotherapy and appropriate medication may reduce the impact of
the headaches.  He believed that she was capable of working a full-time job
with light physical demands.

[174]    
In his description of the effects of the first accident, Dr. Robinson
also gave the opinion that there was no damage sustained to the nervous system.

[175]    
The report of June 9, 2014 includes the following:

Opinion

This lady continues to suffer from difficulties arising from
the July 21, 2007 motor vehicle accident.  She has frequent headaches which are
occasionally severe along with constant discomfort in her neck, upper back,
shoulders and low back.

Her headaches have gradually improved since my previous
review in early 2011.  Her mild to moderate headaches now occur on average
every couple of weeks, and up until recently her more severe migraine-like headaches
were relatively infrequent.

During the last 6 months she has become much more physically
active, and not surprisingly there has been an increase in her headaches.  She
has been able to continue working full-time and is committed to her desire to
improve her level of physical fitness.

Her symptoms of depression and anxiety have continued but
appear to be substantially improved.  She is no longer on psychoactive
medication and denies feeling depressed.  Her anxiety surrounding the fright of
the accident continues to be present, particularly while riding as a passenger
in a motor vehicle.

I do not believe that there is any further investigation
which would be helpful in understanding her headaches.

As noted in my previous report the treatment of chronic
post-traumatic headache is usually difficult.  I doubt that her return to any
physical therapy would be of benefit to her.  To her credit she has embarked on
an active rehabilitation program that is self-directed.  It is possible that
there will be better tolerance to the increased activity and that her more
severe headaches will return to being less frequent.

I believe that she will continue to experience headaches for
many years to come.  It is possible that her headaches will improve further but
probable that she will be subject to mild to moderate headache, usually with
physical activity.  Her more severe headaches will continue causing occasional
periods of incapacitation.

She did try triptan medication but this was unhelpful and had
side effects.  Although she could be provided with other drugs in the same
class it is probable that they will also be ineffective.  Other than continuing
with her simple analgesics and anti-inflammatory drugs I doubt that there are
any other medications that would be helpful for acute therapy of her headaches.

There are daily medications that could be utilized, however
many result in appetite stimulation and increased weight.  I believe that this
would be a contraindication for her, and given the relatively low chance of efficacy
I would not suggest these drugs.

I continue to believe that botulinum neurotoxin type A
(Botox) could possibly result in improvement in her headaches, neck and
shoulder pain.  Although she does have extended benefits she believes that she
would have to “put the money up front” before collecting from the insurance
company.  At the present time this is not feasible given the financial
constraints on her and her husband.

She has proven to be capable of working a full-time in a job
with light physical demands.

By their nature the symptoms of
headache and neck pain are subjective.  There are no objective measures such as
a blood test or image that can document the presence, absence or magnitude of
these complaints.  However, this is almost universally true in patients with
chronic headache disorders.  The assessment of the headaches, which includes
diagnosis and impact, can only be determined by self-report.

[176]     Dr. Robinson
addressed a letter sent to him by Ms. Fletcher on June 17, 2014 regarding
his 2014 opinion.  Dr. Robinson said that he viewed such issues as
reflecting relatively minor inaccuracies which are normal in the context of
taking a prolonged history.  In short, his opinion did not change.

[177]     When cross-examined
with respect to the plaintiff’s report to treating neurologist, Dr. Javidan,
regarding the frequency of her headaches, he stated that they were not
necessarily inconsistent.  Patients in his practice do not necessarily mention
headaches unless they are serious or impact function.  He also pointed out that
Dr. Javidan had seen Ms. Fletcher with respect to “blackout spells.”

[178]     With
regard to inconsistencies in the report of headaches to Dr. McLeod, Dr. Robinson
acknowledged that there may be inconsistencies.  He testified that although
there was almost no mention of headaches to her family doctor for three years, it
may be that some people seem to accept headaches.  Dr. Robinson was alive
to the issue of reliance on self-reporting of headaches and he accepted Ms. Fletcher’s
reports to him of headaches.  I accept his evidence which relied in part on
those self-reports.

[179]     Ms. Fletcher
reported to him that in 2013 her headaches were much improved.  She did not
tell him that she spent every other weekend in bed.  Dr. Robinson
testified that most of the present headaches are relatively mild.  There is an
impact but it is not substantial.

4.              
Dr. Larry Krywaniuk, Psychologist

[180]    
Dr. Krywaniuk saw Ms. Fletcher on October 22, 2009 and
November 5, 2009 for a neuropsychological assessment.  He administered a series
of psychological and neuropsychological tests and prepared a report dated
August 31, 2010, which includes the following:

Opinion

Ms. Rutter’s physician and a neurologist she saw
indicated that Ms. Rutter likely experienced a mild concussion as a result
of her accident and she also reported to me symptoms consistent with this
diagnosis.  Although initial cognitive symptoms were probably associated with
this, the results of my assessment indicated that she is probably no longer
experiencing residual symptoms associated with the initial concussion.  However,
these symptoms were initially concerning to her and it seems likely to me that
she found the overall experience, including the initial accident, extremely
frightening.

In my opinion, the major consequences of Ms. Rutter’s
accident have been in the emotional domain and are coupled to symptoms of
depression and anxiety with the result that there is likely to be a
psychological component in her overall symptom pattern.  Because of her
perceived slow recovery and continuing difficulties, Ms. Rutter has
developed a pessimistic attitude towards further recovery and her overall
future.

Ms. Rutter likely qualifies for a diagnosis of Mood
Disorder although her overall profile also is consistent with a diagnosis of
Chronic Pain, to which psychological factors are likely to contribute.  It
appears to me that Ms. Rutter does not have strong insight into her
psychological dynamics and the contribution that this has to her overall
symptom pattern.  Ms. Rutter probably qualifies for diagnosis of Post
Traumatic Stress Disorder although there are indications that her symptoms have
diminished to a degree.

The indications I have are that Ms. Rutter is a highly
sensitive individual from an emotional perspective and this probably has been a
factor in the strong emotional reactions she has had due to her accident and
the difficulties she has had in overcoming its effects.  The indications I have
are that Ms. Rutter has developed a maladaptive psychological adjustment
pattern in response to her accident and injury she sustained as a result.  When
she was younger, she struggled with self-concept issues although she seemed to
have overcome them prior to the accident.  However, it may be that she was
somewhat more vulnerable in this area than others would be as a result.  Despite
this, she recently has been coping with the basic aspects of the job she
subsequently obtained as a project manager for a construction firm.

Overall, Ms. Rutter’s accident has had a significant
impact over most aspects of her life.  This includes aspects of daily living,
her employment, her spousal and family relationships, her emotional adjustment,
her overall physical condition and her perception of her future.

Prognosis

The fact that she has been able to return to work contributes
to a favorable prognosis.  However, this would be tempered by the medical
prognosis regarding residual physical difficulties, including the contribution
from psychological factors.  At this point, Ms. Rutter continues to
experience significant emotional sequelae to her accident.  The fact that she
is now three years post-accident has allowed her maladaptive psychological
adjustment patterns to become relatively deeply entrenched in her psychological
makeup.  Because she tends to be a ruminative individual, these feelings are
continually reinforced.  From an emotional perspective, Ms. Rutter’s
prognosis is somewhat guarded and this will continue until her disturbed
emotional adjustment is addressed through treatment.  On the other hand, she
has strong cognitive abilities, especially in the verbal area, and this does
give her potential for further education and training.

RECOMMENDATIONS

1.     I would
recommend that Ms. Rutter be referred for psychological counseling and
therapy to address her psychological adjustment issues, self-confidence,
self-concept, pessimistic attitude towards her future and residual PTSD
symptoms.

2.     I would
also recommend that Ms. Rutter attend a pain management program to address
the continuing pain issues.

3.     Ms. Rutter
reports diminished sexual functioning.  This may be a combination of diminished
libido based on psychological factors in correlation with physical factors.  I
recommend that this be specifically addressed as a topic of her rehabilitation
with further referrals, if required.

4.     Although Ms. Rutter
reported that she has found a job that she is able to manage, I would recommend
that she have vocational counseling to determine if she is optimally employed
and to help her identify other vocational and career options.

5.    
Ms. Rutter should work with an occupational therapist to help her
identify alternative social, recreational and leisure pursuits.

[181]     Dr. Krywaniuk
was not required to attend trial for cross-examination and his opinion was not challenged.

5.              
Dr. Harold Frederick Shane, Psychiatrist

[182]    
Dr. Shane saw Ms. Fletcher twice on March 7, 2011 and November
21, 2013.  He prepared a written opinion dated March 20, 2011, and addenda
dated June 28, 2011 and November 24, 2013.  Dr. Shane was accepted as an
expert qualified to give expert opinion evidence in the field of psychiatry.  Dr. Shane’s
March 20, 2011 report includes the following:

Diagnostic Considerations

– Pain Disorder Associated With Both Psychological Factors
and a General Medical Condition

This is a significant history which is well documented by
specialists in the area of musculoskeletal pain and it[s] causes.  Associated
with this pain over the years have been anxiety, panic and symptoms of Post
Traumatic Stress Disorder as well as issues of a possible period of
depersonalization.

– Depression
Major Depression

It would appear that there is a reasonable case to be made
for Ms. Rutter having a major depression subsequent to the accident in
terms of loss of pleasure, sleep disturbances, agitation, decreased energy,
tiredness and fatigue, a sense of worthlessness, loss of appetite, suicidal
preoccupations and difficulties with her cognition.  To a great degree this has
ameliorated over the last number of years and it is difficult to say when it
began to become less prominent but there has been a sustained sense of sadness
and underlying depression.  It is of note that she has functioned in a
reasonable manner.  It is also of note that there has been some documentation
of neuropsychiatric testing regarding depressive issues.

Obsessive Compulsive
Disorder

There are some mild symptoms of ritualistic approaches to the
time she gets out of bed during the day as mentioned.  It has not been
accompanied by other symptoms which would qualify her for an Obsessive
Compulsive Disorder.

Post Traumatic Stress
Disorder

Following the accident of 2007, Mr. [sic] Rutter
developed significant symptoms related to the development of Post Traumatic
Stress Disorder.  She went on to experience a great deal of general anxiety,
psychic numbing, difficulties enjoying previous activities, reduced stability
of her emotions, depressive symptoms, panic attacks, recurrent thoughts and
intrusive occasional flashbacks of the accident.  These symptoms have muted
with time.

Generalized Anxiety
Disorder

Ms. Rutter continues to worry a great deal about her
pain, her future occupational status, her marriage and issues in her daily life
more days than not.  It is also accompanied by significant somatic tension,
subjective anxiety and pervasive worry as indicated.

Panic Disorder without
Agoraphobia

She continues to experience intermittent panic attacks
characterized by physiological symptoms although they have been muted in terms
of frequency over the years, they are still present from time to time.

She has discussed with me the issue of her self abuse.  This
is not a diagnostic disorder but certainly is a psychological symptom that
affects her general medical condition and impacts upon her treatment and the
course of her problems.

Impulse – Control Disorder
Not Otherwise Specified

Ms. Rutter indicated she has had moments where she has
deliberately broken items in her home when she has felt stressed.

Dissociative Disorder

This is characterized based on the DSM-IV criteria of a
disruption of usually integrated functions of consciousness, memory, identity
or perception of the environment.  This may be transient or protracted by of [sic]
behaviour.  The subtypes of dissociative amnesia usually are characterized by
an inability to recall important personal information usually of a stressful
nature.

Tinnitus

Ms. Rutter has experienced Tinnitus on a regular basis
she indicated since the accident of 2007.

Personality Disorder Not
Otherwise Specified

This category as reflected in the DSM-IV disorders of
personality function is characterized by the presence of features of more than
one personality disorder.  These features do [sic] meet the full criteria for
any one personality disorder but together result in clinically significant
distress.  Her job difficulties and self abusive behaviour all reflect aspects
of this disorder.

DSM-IV Diagnosis

This is a compendium of mental disorders used by psychiatrists
for the diagnosis of mental disorders.

Axis I – Pain
Disorder With Both Psychological Factors and a General Medical Condition –
chronic

– Post Traumatic Stress Disorder –
in partial remission

– Panic Attacks Without Agoraphobia
– in partial remission

– Generalized Anxiety State – in
partial remission, mild, chronic

– Impulse-Control Disorder not
otherwise specified – in remission

Axis II – There
is no distinct personality disorder but she uses maladaptive mechanisms such as
masochistic behaviour to deal with psychological conflicts.  She has moments
when she has destroys [sic] inanimate objects.  The diagnosis of Personality
Disorder Not Otherwise Specified would be appropriate.

Axis III –
History of motor vehicle accident in 2007 predisposing her to Pain Disorder With
Both Psychological Factors and a General Medical Condition, Post Traumatic
Stress Disorder, Generalized Anxiety State, Panic Disorder Without Agoraphobia
and Impulse-Control Disorder Not Otherwise Specified

Axis IV –
Economic stress
– Problems related to well being related to motor vehicle accident of 2007
resulting in musculoskeletal pain and other somatic symptoms

Axis V – GAF at this time is in the range of 65

– My detailed diagnosis and
prognosis;

I have discussed the diagnosis in detail.  In terms of the
prognosis, there is certainly concern from a psychological perspective as there
have been ongoing issues of changes in terms of her self esteem, her feelings
regarding her inability to work within the community in a gainful manner and her
ability to cope in the future with her life.  I am somewhat optimistic that she
will be able to deal with this but it is critical she receive ongoing therapy
to help her with her problems.  In terms of her physical symptoms I would refer
this to experts in this area.

– Was there or is there any
period of total or partial disability as a result of the accident and, if so,
what is my estimate of the nature and duration of such disability?

It is my opinion that for the better part of four months
after the accident in 2007 she was disabled to work.  Since then she has
struggled with her work situation and since the fall of 2010, has not been able
to work because of what she claims is her inability to cope psychologically
with any occupational setting at this time.  She is not actively looking for
work she indicated since September 2010.  It is my opinion that her ability to
adapt to the stresses of her occupational setting within the context of her
emotional and physical health has been responsible for her not working at this
time.

– Will there be any permanent disability as a result of
the accident (even if that disability is a partial disability) and, if so, what
is the nature and extent of such permanent disability?

It is difficult to state from a psychological perspective how
long her symptoms will last.  I do think that with the appropriate support
there is a reasonable chance this will resolve to a reasonable degree.  The
issues of pain are best referred to a specialist in that area.

– What recommendations, if any, would I make with respect
to future treatment and what would be the likely duration, frequency and
anticipated cost of such treatment?

I would think that her receiving
psychotherapy on an ongoing basis would be appropriate.  The length of time
involved in this type of therapy would be determined by the therapist in the
context of his/her relationship with Ms. Rutter.  The type of therapy she
would require would be that of a frequent nature, ongoing and lasting up to a
few years.

[183]     Dr. Shane’s
November 24, 2013 report contains his opinion following his re-evaluation of Ms. Fletcher
after the second accident, his review of the then newly available medical
opinions, including the opinion of the psychiatrist, Dr. Grant Chernick,
whose October 5, 2011 report was not adduced as evidence at trial.  Dr. Shane’s
November 24, 2013 report includes the following:

I note that in reviewing my report, I omitted to document in
Axis I the diagnosis of Major Depression, single episode, non psychotic in
remission.  I note in my diagnostic considerations I had documented this
issue.  It was an oversight that this disorder was not documented on the Axis I
considerations.

My diagnosis and prognosis;

Somatic Symptom Disorder, predominant pain, persistent
and moderate

It is my opinion she is experiencing significant pain which
certainly has an impact upon her psychological and physical well being.  This
has been documented.  Although she tolerates the pain it is a symptom that has
predisposed her to depressive symptoms.

Post Traumatic Stress Disorder
(PTSD), chronic

She has experienced symptoms of this disorder since 2007.

Panic Disorder in remission

Excoriation
(Skin Picking Disorder), chronic

This is a new disorder added to the DSM-V

Prognosis

It is my opinion unless her pain is alleviated the struggle
with the quality of her life will continue to persist.  I see the symptoms of
the Post Traumatic Stress Disorder continuing indefinitely although she is a
young woman and certainly it is likely with time unless there is intervening
stress of a significant nature, these symptoms will probably become less of a
problem.  She has continued to drive as indicated.

It is also of note that her skin picking continues to be a
problem for her although it does not disrupt her daily functioning.  This is a
reflection of her anxiety about pain and accompanying limitations.

You have asked me to address the issue of whether there
are any permanent disabilities as a result of the accidents and if so, what is
the nature and duration of such disabilities;

Following the initial accident in 2007 it appears Ms. Rutter
was off work for some months because of the pain she had experienced and the
depression.  Other than that period it appears she has been employed, has been
laid off from time to time.  I do not see her as being occupationally limited
within the context of her abilities and work experience.  I do not view any
psychological symptoms that she is experiencing reaching the magnitude where
they are significantly impairing her ability to cope occupationally.  Having
said this, there has certainly been an impact upon her sense of psychological
stability as she has to cope with her pain, skin picking, mood vacillations,
and symptoms of the Post Traumatic Stress Disorder.

You have asked me to address the issue of whether she has
any permanent disabilities as a result of the accidents, either wholly or
partially?;

At this time it appears she is able to cope in a highly
demanding occupational position.  There is no evidence she is disabled in any
way whatsoever to work in the type of position in which she is now involved.

You have asked me to address the issue of future
treatment;

It is important she continue to have psychotherapeutic
support.  She has a good relationship with her present counsellor but as
indicated she has not seen her for some time because of economic considerations. 
She did indicate she hopes to return soon as her present occupational setting
has a plan which will pay for this intervention.  I am not sure why she has not
returned as she has been working at this present firm for over a year.  Perhaps
she feels it is not important and she has been able to manage.

She would like to return to massage therapy treatments and I
support this.

[184]     Dr. Shane
explained his use of the diagnostic Axes I-V under the DSM-IV, which were
eliminated under the DSM-V, and the global assessment of function or GAF, which
is no longer part of an evaluation under the DSM-V.  His initial diagnoses
included Pain Disorder with Both Psychological Factors and a General Medical
Condition, as defined in the DSM-IV, which has been incorporated into a new
disorder in the DSM-V, resulting in his final diagnosis of Somatic Symptom
Disorder, Predominant Pain, Persistent and Moderate.

[185]     With
regard to the diagnosis of Post Traumatic Stress Disorder, Dr. Shane
testified that Ms. Fletcher met the criteria for a period of time, and
although she still shows some symptoms, it was sub-clinical in 2013.

[186]     In
response to a question from the bench, Dr. Shane further explained the
nature and effect of a Somatic Symptom Disorder such as he diagnosed in Ms. Fletcher. 
Dr. Shane indicated such a disorder is a condition where individuals
experience pain from organic causes such as a motor vehicle accident or ulcer,
but factors such as emotional stress and distress of the illness itself
contribute to psychological or psychiatric distress emotionally, physically and
occupationally.  He responded in the affirmative when asked if it is the
experience of pain that leads to the difficulties and depression.

6.              
Dr. Winston Gittens, Neurosurgeon

[187]    
Dr. Gittens was accepted as an expert witness qualified to give
opinion evidence in the field of neurosurgery.  Dr. Gittens saw Ms. Fletcher
on May 12, 2014, conducted a review of the available medical records and
reports, and prepared a written opinion dated May 22, 2014.  His report
includes the following:

…At the time of my
assessment, the predominant complaints related to me were:

1.     Lower back
pain and stiffness related to the motor vehicle accident of 2007;

2.     Left lower
limb pain extending from the back and coccygeal area to the posterior aspect of
the knee, which she related to 2012;

3.     Neck pain
and stiffness dating back to the 2007 motor vehicle accident;

4.     Headaches
(migraines) with neck pain dating back to the motor vehicle accident of 2007.

Other symptoms highlighted in the patient questionnaire
included fainting spells, muscle weakness, loss of feeling or tingling
sensations, nausea, vomiting, neck pain, lower back pain and lack of
concentration.

Having reviewed the documents provided and interviewed and
assessed Ms. Fletcher, to summarize the salient features, it should be
noted that prior to the motor vehicle accident of 2007 Ms. Fletcher had
been involved in three other motor vehicle accidents.  Although the dates may
not be accurate, it is believed that the first was minor in 1997 and that she
suffered no injuries as a result of that, that she had in the other two
accident believed to have occurred either in 2000 for the first one and 2003 or
2004 for the second one, injuries to the back and also a whiplash type injury
to the neck, resulting in symptoms which persisted into at least 2004 based on
the records of Dr. Shepherd and also required in 2004 an x-ray of the
lumbar spine.  There is also a suggestion based on the information provided by
KARP that she may have had ongoing back symptoms dating back to the motor
vehicle accident of 2004.  Most of the records, however, make no other
reference to back symptoms immediately prior to the 2007 motor vehicle
accident.

The motor vehicle accident of July 21, 2007 was an accident
that resulted in no loss of consciousness and an impact that resulted in her
head striking the window or the window frame area.  The records would suggest
that the primary result of that incident was soft tissue injury to the
paraspinal muscles in the cervical, thoracic and lumbar areas of the spine; but
mainly in the neck and lower back as well as contusions to the scalp on the
left side, left hip area and thigh along with post-traumatic headache arising
from the scalp, neck and possibly vascular structures.  This motor vehicle
accident also resulted in nausea and dizziness, which has brought up the
following diagnoses:  Mild concussion or traumatic brain injury or some sort of
vestibular injury.

However, everyone is of the agreement in there [sic] findings
that the motor vehicle accident on July 21, 2007 did not result in any
neurological injury.  Dr. Stewart considered the possibility of thoracic
outlet syndrome.  However, the neurologist who saw her, as well as Dr. Hirsch,
did not consider this in their list of possible diagnoses and the clinical
information did not indicate the presence of any disc injury to result in the
left-sided sciatica.

The records, with the exception of the comment and Dr. Kokan’s
report, would indicate that there was no significant tailbone area pain
referred to in the records until 2013.

The second motor vehicle accident of September 9, 2011, based
on the clinical data available to me, would suggest that there was an increase
in symptoms from the soft tissues and soft tissue injury resulting from the
previous motor vehicle accident but again there did not appear to be any
neurological injury as a result of this accident and there was nothing in the
clinical data to suggest a permanent change secondary to this accident.  The
subsequent assessment of various studies, including the MRI scan, did not
suggest any structural injury to the spinal column, including the coccygeal
area.

At the time of my assessment, Ms. Fletcher was still
reporting ongoing lower back pain and stiffness, neck pain and intermittent
headaches, particularly with the neck pain.  One of the predominant complaints,
however, was left lower extremity pain extending from the coccyx and pain in
the coccygeal area.

OPINION:

2.         Diagnosis and
prognosis.

Current Diagnoses:

1.     Chronic
neck and lower back pain;

2.     Headaches
with the cervicogenic and vascular component;

3.     Mild
carpal tunnel syndrome (positive Tinel’s sign);

4.     Coccydynia
(pain in the tailbone area); and

5.     Possible
sacroiliac joint dysfunction.

Motor
Vehicle Accident-Related Diagnoses:

1.     Soft
tissue injury to the neck and back;

2.     Possible
mild traumatic brain injury with possibly mild concussion symptomology;

3.     Contusion
to the scalp, left hip, left knee and possibly left thigh;

4.     Cervicogenic
headaches, post-traumatic in nature with a vascular component; and

5.     Possible
vestibular injury.

Comment:

In regard to the diagnosis of
possible mild traumatic brain injury or concussion, as indicated earlier, there
is a difference of opinion in the reports in regard to whether this lady
suffered a concussion.  The initial presentation does suggest the possibility
of some change in sensorium prior to when she was assessed by the paramedics,
at which time she was fully conscious, alert and well-oriented, but she had
shortly after the incident some dizziness and nausea, which could be explained
on the basis of the mild concussion or vestibular injury and as I am not in a
position to absolutely exclude the possibility of a mild traumatic brain
injury, I would like to state that I believe that this possibility does exist,
that it was mild in nature and should not have resulted in any sequelae except
for possible transient mild concussional symptomology.

In regard to the prognosis, Ms. Fletcher
has chronic and ongoing pain, particularly in the neck and the lower back with
some stiffness.  I think the prognosis for the persistence of this pain is that
it is likely to do so.  As far as the coccygeal or tailbone pain is concerned,
I find it difficult to relate this symptom to any of the two motor vehicle
accidents based on a thorough review of the clinical documentation on the
records.  It is not possible to absolutely state the cause of this.  It should
be a local traumatic problem or referred pain to that area from problems
unrelated to the motor vehicle accident.

3.         Whether Danica had any prior or existing medical or health
problems or conditions pertinent to any injuries she may have sustained in the
Accidents.

Yes, prior to the two motor vehicle accidents, Ms. Fletcher
had been injured in prior motor vehicle accidents; at least two which produced
symptoms in the neck and in the lower back and we have radiographic evidence
that would indicate that she had pre-existing degenerative changes in the
lumbar spine at least prior to the first accident.  This degenerative condition
may have and could have pre-disposed her to pain which might persist longer
than anticipated.

4.         Whether
Danica’s complaints were caused or contributed to by the Accidents.

The first accident, Accident #1 of July 21, 2007,
contributed ongoing neck and lower back symptoms which are aggravated by the
second motor vehicle accidents [sic], but I believe, based on the records, that
this aggravation was temporary and that the ongoing neck and back symptoms are
residual from the first motor vehicle accident.

5.         From what, if any, ongoing problems or complaints does
Danica continue to suffer at this point, which were caused or contributed to by
the accidents?

The neck and lower back pain, I believe, is likely to
continue and relate to the first motor vehicle accident.  There are
psychological and psychiatric issues which have been noted in the records and
you should have the psychiatrist address the relationship of those symptoms to
her pre-accident issues and the accidents themselves and the prognosis.

7.         Will
there be any permanent disability as a result of the Accidents (even if that
disability is a partial disability) and, if so, what is the nature and extent
of such permanent disability?

I do not anticipate any permanent neurological disability as
a result of the two accidents.  Ms. Fletcher’s disability is a reflection
of chronic pain.  I believe that this will result in a long-term, possibly
permanent, partial disability.  I am referring in regard to the neck and lower
back symptoms, which I believe are related to the motor vehicle accident.  As
far as the coccygeal pain is concerned, this may respond to treatment to the
point that it may not impact on her in the long-term.

It is not possible to apply a percentage to this disability,
but it would be partial disability in regard to the neck and lower back.

8.         What recommendations, if any, would you make with respect
to future treatment, and what would be the likely duration, frequency and
anticipated cost of any such treatment.

As a result of my assessment and review of the various
records, I would like to make the following recommendations:

1.    
That she be sent for a bone scan, looking for inflammatory change in the
spine, sacroiliac area and coccyx.

2.    
To diagnose whether the possible disc pathology is contributing to some
of the pain, i.e. nerve root compromise, and as such, therefore, I would like
to recommend a diagnostic left L4 nerve root block.

3.    
For therapeutic purposes following #1 and #2, sacroiliac blocks may be
diagnostic and therapeutic as well as blocking in the coccygeal area.

4.    
No surgery is anticipated in regard to the axial spine.

5.    
I would recommend a continued exercise program.

6.    
Because of the history of possible vestibular dysfunction, I think it
would be appropriate to have her undergo a full assessment by an ENT surgeon as
well as a series of vestibular function tests to identify whether there is a
possible explanation for the dizziness originating from the vestibular
apparatus.

[188]     Dr. Gittens
corrected a factual error at page 22 of his report and agreed that if Ms. Fletcher’s
father was not sick from October 2010 to September 2012, then that would not
have been a factor in her time off work during that interval.  Dr. Gittens
also explained his use of the pain scale from 0 to 10, and the nature of the
pre-existing degenerative condition found in Ms. Fletcher’s spine, which
can be aggravated by trauma, may not be symptomatic and may cause symptoms
arising from trauma to persist longer than anticipated.

[189]    
Under cross-examination, Dr. Gittens was responsive to questions
and stood by his opinions.  Under cross-examination and later in response to
questions from the bench, Dr. Gittens clarified the meaning of the
contents of his report found in the last paragraph at the bottom of page 20,
and in the first complete paragraph on page 21, which read, as follows:

CURRENT SYMPTOMS:

Lower back pain and
stiffness:

This pain is mainly in the coccygeal area and is reported to
be severe, worse on sitting; but there is also pain in the lower back
bilaterally and in the loin along with stiffness.  The coccygeal pain, she
believes, started after the motor vehicle accident.  It is now constant, 7 to 8
on the pain scale, worse on sitting in excess of half an hour, lifting,
bending, doing exercises that are strenuous, standing more than half an hour
and doing household chores, including vacuuming.  It is less prevalent when she
has massage therapy, which helps for one or two days.  It is eased to some
extent by the muscle relaxants for a few hours and she has also lost some
weight, which has helped to some extent.

The second component of her pain
is related to the lumbar area and the loins.  It is 6 to 7 on the pain scale of
1 to 10, constant, becoming shooting with activity.  In fact, at times it is
severe to the point that she may become stuck in certain positions.  There is
also a history of shooting intermittent lower back pain and pain which extends
from the tailbone into the buttock and the posterior aspect of the thigh to the
posterolateral knee.  This pain occurs daily.  It is variable in severity and
last seconds, but at times may last for hours, during which time she has noted
difficulty with weight bearing and has a limp.

[190]     Dr. Gittens
stated that the first paragraph is a composite that “deals with both coccygeal
and back pain,” whereas the second paragraph reproduced above addressed just
the lower back pain.  He also clarified the meaning of the sentence which reads:
“It is now constant, 7 to 8 on the pain scale, worse on sitting in excess of
half an hour, lifting, bending, doing exercises that are strenuous, standing
more than half an hour and doing household chores including vacuuming.”  The
words “worse on sitting” referred to the coccyx, and the remainder of that
sentence, refers to both the coccyx and the back.

[191]     Dr. Gittens
was also cross-examined with respect to the efficacy of spinal decompression
which is a form of traction.  He thinks it does help some individuals but the
same help is gained with physiotherapy.  Some of his colleagues send patients
for the treatment, but for 75% of back and neck pain he would never recommend
spinal decompression.  He also said that there is no evidence that passive
therapy such as massage makes a long-term difference.

7.              
Giovanna Boniface, Occupational Therapist and Certified Life Care
Planner

[192]    
Ms. Boniface was initially asked to review the medical information
available and prepared a future cost of care projection report dated September
8, 2011.  She then saw Ms. Fletcher and again reviewed some of the
available medical reports with respect to the recommendations made by the
various practitioners and prepared a July 17, 2014 Future Cost of Care Report
and a July 23, 2014 Addendum.  Ms. Boniface was qualified to give opinion
evidence in the areas of her expertise in occupational therapy and the cost of
future care.  Ms. Boniface’s July 17, 2014 report includes the
following:

OPINION

Ms. Rutter was involved in MVAs on July 21, 2007 and September
9, 2011.  Prior to these accidents, Ms. Rutter was independent with all
activities of daily living including self-care, productivity (full-time work,
home management) and leisure.  She was seen in her home on July 17, 2014 for a
cost of future care evaluation.  She continues to experience physical
difficulties specifically, neck pain, headaches, low back pain, and bilateral
knee pain.  In addition, Ms. Rutter experiences fatigue and emotional
symptoms (depression and anxiety).

These difficulties have an adverse impact on her ability to
engage in activities of daily living including reduced ability to engage in
heavier housekeeping and leisure tasks.

A detailed explanation for each of the recommendations is
provided in a table format in Appendix B.  The goals of these recommendations
are to enable Ms. Rutter to:

·       
maintain a quality of life which resembles, as closely as
possible, that which she would have led but for the injuries she sustained in
the MVAs of July 21, 2007 and September 9, 2011;

·       
functional [sic] optimally on a daily basis;

·       
develop and maximize her skills in order to allow her to pursue a
meaningful and productive life, including personal relationships and
recreational pursuits;

·       
cope optimally and compensate for her functional losses;

·       
optimize her ability to live independently (including the
provision of paid assistance so that she does not have to rely on family,
friends or charitable organizations to enable independent community living);

·       
access aids and supplies that are now necessary as a result of
her limitations;

·       
reduce (or prevent) future complications;

·       
reduce the need for crisis-based interventions’

[193]     Under
cross-examination, Ms. Boniface acknowledged the scope of her report and
her expertise.  She also explained the difference between the Cost of Care
Projection she had initially prepared in 2011, which does not require an
in-person meeting with the subject, whereas a Future Cost of Care Report does
require such a meeting.

8.              
Hassan Lakhani, Economist

[194]     Mr. Hassan
Lakhani of Peta Consultants prepared a July 22, 2014 Future Cost of Care Report
and a July 24, 2014 Addendum, in which he calculated the present value of the
items and services found in Ms. Boniface’s July 17, 2014 Future Cost of
Care Report and her July 23, 2014 Addendum.

[195]     Mr. Lakhani
also prepared a July 18, 2014 Future Income Loss Multipliers Report to assist
in determining the present value of the income the plaintiff will lose in the
future as result of the first accident and the second accident.  Mr. Lakhani
was qualified to give opinion evidence in the areas of his expertise in
economics.

[196]     Mr. Lakhani
explained the nature and scope of the reports.  His opinions are tools to determine
how much an individual would need today to compensate for a future loss.  Mr. Lakhani
also explained that Table 1 of his July 24, 2014 Addendum-Future Cost of Care
Report replaces Table 2 of his July 22, 2014 Future Cost of Care Report.

[197]     The table he
produced lists the “Item[s]/Service[s]” and the “Cost” of such items and
services using the same numbering as appears in Appendix “B” to Ms. Boniface’s
July 17, 2014 report and Appendix “A” to her July 23, 2014 addendum.  The
column “Claimed” has Mr. Lakhani’s calculations of the present value of
the items and services found in Ms. Boniface’s reports.  The table is
discussed below in the Cost of Future Care.

9.              
Carey Scarrow

[198]    
The plaintiff claims that her 2006 Toyota Matrix was damaged and its
value was reduced as a result of the first accident.  When Ms. Fletcher
and her husband purchased new vehicles during the spring of 2008, they traded in
her 2006 Toyota Matrix.  Mr. Scarrow was asked to review the available
photographs and damage estimates and to determine the amount of any accelerated
depreciation or diminishment in the value of Ms. Fletcher’s vehicle.  Mr. Scarrow
was qualified to give opinion evidence in the areas of vehicle evaluation and
appraisal.  Mr. Scarrow prepared an Accelerated Depreciation Assessment
Report dated September 8, 2011, which includes the following:

It is my opinion the result of
the collision repairs upon the vehicles Actual Cash Value was accelerated in
terms of depreciation by Two Thousand Five Hundred Dollars [$2500/Cdn.] plus
applicable taxes.

IV.           
DISCUSSION

A.             
Overview

[199]     The
ultimate issue for the court is the quantum of damages under the applicable
heads that the plaintiff is entitled to as a result of the two accidents in
2007 and 2011.  In order to reach those conclusions, it is necessary to assess
the credibility and reliability of the plaintiff, and to determine the weight
to be attributed to the evidence of the expert witnesses.

[200]     The law is
not in issue between the parties.  It is set out to summarise the principles
that counsel agree are to be applied to the findings of fact.

[201]     The
plaintiff says that in the more than seven years which have passed since the
first accident and three years since the second accident, she continues to
suffer from chronic, disabling pain and psychiatric maladies.  As a result, she
requires ongoing care and assistance.

[202]     It is the
submission of the defendants that Ms. Fletcher has made significant
recovery in many areas of injury, particularly with regard to the headaches and
psychological symptoms.  They say that the plaintiff’s residual pain complaints
and psychological distress are wholly subjective.  Further, she suffers from
symptoms unrelated to the accidents and her reports of pain and disability lack
both consistency and accuracy.

[203]     I will
turn first to a discussion of the evidence of the plaintiff.

B.             
Credibility and Reliability of the Plaintiff’s Evidence

[204]     It is
submitted on behalf of Ms. Fletcher that her evidence ought to be assessed
in light of the fact that more than seven years have passed between the first
accident and the trial.  During that time she has had four jobs and seen many
health care practitioners and experts.  In such circumstances, she says that
the minor inconsistencies on the documentary record should be expected as a
matter of course.  It is submitted that Ms. Fletcher was a credible and
reliable witness overall.

[205]     The
defendants submit that there are inaccuracies and inconsistencies in the
plaintiff’s evidence.  If the plaintiff’s account of his or her change in
physical, mental, and/or emotional state as a result of the accident is not
convincing, then the hypothesis upon which any expert opinions rest may carry
less weight: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431
at paras. 15,49.

[206]     The
defendant says that although it is not submitted that the plaintiff
intentionally misled the doctors and the court, there is a repetition of
inaccurate and inconsistent reporting.  I agree.  Some examples follow.

[207]     The first
area of concern is not of itself relevant, but is indicative of a pattern of
generalisation and exaggeration.  The plaintiff described her childhood as
“idyllic”.  However, she suffered when her parents temporarily separated, and
in Grade 9 she was bullied to the degree that she became clinically depressed
and suicidal.  She moved away to live with an aunt and attend a different
school for a year.

[208]     With
regard to residual effects from the 2000 and 2003 motor vehicle accidents prior
to the first accident, she reported to Drs. Stewart, Gittens and Ms. Boniface
that she had recovered or fully recovered from those injuries.  However, in
2007 she told Dr. Kokan that she had a sore back from a previous injury
and it would flare up if she lifted something too heavy or turned the wrong
way.  Her testimony confirmed that prior to the first accident she had back
pain about 2 to 3 times per month for 2 to 3 days each time.

[209]     Similarly,
she told Dr. Kokan at the same time in 2007 that she had injured her
coccyx when she was young and that it remained a source of pain when sitting. 
With regard to the absence of any report to Dr. McLeod of coccyx pain
prior to August 2013, she blamed it on the fact that Dr. McLeod only
permitted her to discuss her top three complaints.  Dr. McLeod, a most
caring physician, denied that that was her practice.

[210]     In her
testimony, Ms. Fletcher was, at times, understandably upset.  At other times,
she was very professional and articulate.  However, her evidence in
cross-examination was frequently defensive and argumentative such as in
describing the Coquitlam Crunch hikes; inconsistent such as in describing the
days missed from work at Golder for headaches; or evasive as in describing why
she received so little treatment in 2012.  Although she is a highly organized
person, her memory was sporadic; she could not remember how many or what jobs
she applied for when unemployed.  It was most concerning when, with regard to
her testimony about spending weekends in bed, she could not remember the
previous weekend and what she had done on that weekend three days prior.

[211]     I am
unable to agree with the plaintiff that the inconsistencies between Ms. Fletcher’s
evidence and the documentary record or the opinions of the experts before the
court were of limited, if any, significance.  There is a pattern of
inconsistencies in her evidence and reports to physicians and Ms. Boniface. 
I accept that her testimony was well-intentioned, but it is not entirely
reliable. While I generally accept her evidence that
she was injured in the accidents and that she suffered pain, the degree of
pain, the history of improvement and the effects of the injuries must be more
carefully considered in the context of the evidence as a whole.

C.             
The Evidence of the Expert Witnesses

[212]     The
substance of the specific evidence of the doctors who provided expert opinions
will be discussed below.

[213]     However,
the manner of calling the evidence caused a concern which I expressed during
the trial.  After the plaintiff commenced her evidence on the first morning of
the trial, Dr. Stewart was called as a witness the first afternoon.  Dr. Robinson
was called the following morning, the second day of the trial.  The evidence of
the plaintiff then continued, and the evidence of Dr. Stewart was
completed later in the trial, it also being interrupted.

[214]     It would
not have been possible to have concluded the evidence of the plaintiff in a
half day, nor was the plaintiff’s evidence more than introduced in that time. 
I then requested counsel not to schedule any further witnesses until after the
plaintiff’s evidence was complete in direct, cross-examination and re-direct. 
These were the reasons for that request.

[215]     Generally,
and particularly in personal injury cases, it is preferable that the plaintiff
testify first.  Not only is the plaintiff’s evidence important on its own, it
is the framework or foundation for assessing the evidence of each witness that
the plaintiff may call.  A trial is much more than simply creating a record. 
It is the best opportunity for the trial judge to absorb the evidence and begin
the analysis of the evidence.  The orderly calling of the witnesses is crucial
to the ability to consider and analyze.  Sequence matters.  It is very
difficult to understand the evidence as a whole if the plaintiff’s testimony is
preceded by or interrupted by an expert or other witness.

[216]     For
example, in this case, Dr. Stewart gave evidence regarding the limited physical
capacity of the plaintiff.  I later heard from the plaintiff that she, since
two years post-accident, had participated regularly in Bikram or hot yoga, and
also had frequently done strenuous hiking as well as working extremely long
hours.  It would have been of assistance to have had a full understanding of
the history of the plaintiff’s injuries and recovery as a framework on its own,
and by which to assess the evidence of the expert witness.

[217]     While I do
appreciate the necessity for courtesy to the busy and often over-worked
professionals who are the expert witnesses, the orderliness of the trial
proceedings should take priority.  When an expert witness accepts the important
task of providing a report, the witness is aware that attendance in court is
possible.  Pursuant to Rule 11-6(9) of the Supreme Court Civil Rules,
the witness is notified by counsel in advance of the trial date.  Subject to
any last minute emergencies, it is then incumbent on the witness to attend at a
time that facilitates the orderly calling of the evidence.

D.             
Non-Pecuniary Damages

[218]     Of the two
accidents, the first accident was much more serious.  The expert reports and
evidence attribute the most significant injuries and the ongoing symptoms to
the first accident.  Neither counsel sought an apportionment of damages between
the two accidents.  I have therefore assessed damages globally with the only
increase due to the second accident being in non-pecuniary damages.

[219]     The
parties have differing views of an appropriate quantum of general damages.  The
plaintiff seeks $110,000 to $140,000.  The defendant submits that damages under
this head should be assessed at $75,000.

[220]     Ms. Fletcher
is entitled to damages for the pain, suffering and loss of enjoyment of life
she experienced as a result of the first accident and the second accident.  The
compensation awarded should be fair to all parties, and fairness is measured
against awards made in comparable cases.  Such cases, though helpful, serve
only as a rough guide.  Each case depends on its own unique facts.

[221]     In Stapley
v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be
considered when assessing non-pecuniary damages at para. 46:

The inexhaustive list of
common factors cited in [Boyd v. Harris, 2004 BCCA 146 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: Giang v. Clayton, [2005] B.C.J. No. 163
(QL), 2005 BCCA 54).

[222]     The assessment of non-pecuniary damages is necessarily
influenced by the individual plaintiff’s personal experiences in dealing with her
injuries and their consequences, and the plaintiff’s ability to articulate that
experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

1.              
Consideration of the Factors

[223]     Ms. Fletcher
was 29 years old on the day of the first accident, and is now 37 years old. 
She was living with Kevin Fletcher and they were starting to plan for marriage
and children.  She had studied for and obtained experience in a field about
which she was passionate.  She was very active vocationally, recreationally and
socially.  She had a positive and outgoing personality and attitude.

[224]     The first
accident was a significant collision that caused Ms. Fletcher’s head to
strike the driver’s side window of her vehicle.  There was no loss of
consciousness.  Her anxiety at the scene was increased because the defendant’s
vehicle collided with hers a second time as it drove away.  While in hospital
she remained in a neck brace on a spine board while she waited for the results
of diagnostic imaging to determine whether she had suffered a fracture to her
spine.  She has been experiencing various degrees of neck pain, back pain,
headaches and psychiatric problems ever since.

[225]     However,
the degree of pain and psychiatric issues have significantly diminished.

[226]     It is not
in issue that Ms. Fletcher’s physical pain and the onset of the associated
psychiatric problems left her totally disabled for approximately four months
following the first accident.  She was unable to care for herself and was
afraid to be left alone for that time.  She had cognitive difficulties
consistent with a concussion and experienced nausea, dizziness and fainting in
addition to neck and back pain and headaches.

[227]     The
diagnoses are consistent that she suffered from a concussion, which was likely
mild.  By November 2007, the symptoms were mostly gone and resolved within a
year.  There was no neurological injury.

[228]     In
December 2007, Ms. Fletcher returned to her job at Cinequip.  Although her
passion was stagecraft, she had decided in January 2006 to take a break, and
Cinequip was intended to be a temporary job in what she described as warehouse
work.  It involved hard physical labour lifting and carrying heavy equipment
and long hours.  When she returned to that job, she could not do what she had
done prior to the accident.  Her employer accommodated and she did
administrative tasks.

[229]     In 2009
there were improvements to Ms. Fletcher’s physical injuries and
abilities.  As the Cinequip work was no longer satisfying with her reduced
capacity, Ms. Fletcher quit in October 2008 and went to work at Panther as
a project coordinator.  This job was also administrative as her injuries
prevented physically demanding work.  In the fall and winter of 2009 she worked
consistent long hours, up to 70 hours per week for six months prior to the Olympics
to complete projects.  In May 2009, Ms. Fletcher reported to her family
doctor, Dr. McLeod, that she was doing Bikram or hot yoga four or five
times per week and aquacise.  In May 2009, Dr. McLeod concluded that she
was 50% to 60% recovered with a lot more neck and upper back progress to go.

[230]     When the
work returned to more normal hours in April 2010, Ms. Fletcher began a
serious spiral into depression and suicidal ideation with the realisation that
her dreams of work in the physically demanding area of stagecraft were over. 
In September 2010, she was laid off from Panther and felt relief that she did
not have to go to work.  She then became severely depressed and withdrawn.  Dr. McLeod
prescribed Paxil for her depression, and she remained on Paxil until February
2012 when her father was diagnosed with terminal cancer.  The medication was
interfering with her ability to be emotionally present for her parents at that
difficult time.

[231]     Ms. Fletcher
did not attend to see her family doctor at all in 2012.  Her explanation is
that she was more concerned with her father’s health.  I accept that
explanation, and I also conclude that in 2012 her physical symptoms, including
her coccyx, had improved to the extent or were not in issue such that she did
not feel the need for medical attention for that period of time.

[232]     Ms. Fletcher
was unemployed for eleven months.  During that time she started her crafts
business and participated in fairs where she sold the crafts she made.  That
business continues to the present along with monthly craft classes she teaches.

[233]     When she
returned to work in September 2011, Ms. Fletcher worked in ticket sales
for four months until a lay-off when her employer had a lack of funds to
continue.  After four months of unemployment, she obtained her present position
at Golder where she works at a desk having started as a project coordinator and
is now working as a controls administrator.  After a year working on contract,
she became a permanent full-time employee in May 2013.  At Golder she has received
an award and raises.  The work results in back and neck discomfort but the
sit/stand desk and changing positions assists.

[234]     Ms. Fletcher’s
symptoms persist although improved.  Her testimony was that she continues to
suffer from neck and lower back pain which is exacerbated by some activity. 
Housework causes pain, and she does housework in pain.  She no longer
participates in 4x4ing, and has not since the first accident.  She can now do
the gentle rides at the PNE.

[235]     I accept
the evidence of Dr. McLeod that Ms. Fletcher has a chronic neck and
low back strain.  She opined that that would be the most difficult issue in the
future.  Dr. Gittens makes the same diagnosis of chronic neck and lower
back pain.

[236]     It is to Ms. Fletcher’s
credit that she has, since 2009, made exercise a priority.  In addition to continuing
yoga in 2014, she started a program of frequent hiking, daily noon hour walks
with a coworker and exercising with friends once or twice per week.  Although
her headaches have increased with the exercise, Dr. Robinson is hopeful
that the headaches will subside to previous levels.

[237]     It was the
evidence of Dr. Stewart that Ms. Fletcher reported to her that she
spends every other weekend in bed, and that she consistently collapses at the
end of a work day after dinner.  At trial, Ms. Fletcher said that “there
are weekends” that she stays in bed.  In this area, the evidence was concerning
as Ms. Fletcher, who is a highly organised person, could not recall the
prior weekend.  Given the evidence of her exercise program, weekend hikes and
craft business and fairs which I do accept, I find that Ms. Fletcher
spends an occasional weekend in bed as she testified.  I do not find that Ms. Fletcher
spends every other weekend in bed and every weekday evening after dinner
resting.

[238]     With
regard to the frequency and intensity of the headaches, I accept the evidence
of Dr. Robinson.  He notes that the migraines or more severe headaches
improved after a year, and there was gradual improvement in both severe and
mild to moderate headaches from his initial review in 2011 to his second report
in 2014.  Ms. Fletcher reported to him that the headaches were much
improved from 2013.  Most of the present headaches are relatively mild although
he states in his last report that the more severe headaches will continue.

[239]     The
evidence of Ms. Fletcher and Dr. Stewart raised the issue of pain in
the coccyx.  This pain had its onset when Ms. Fletcher was 12 years old. 
It becomes worse as a result of sitting, which is what her jobs have entailed
since the first accident.  She told Dr. Stewart that in 2012 it was “100
times worse”, and at the time she met with Dr. Gittens in 2014 it was one
of the predominant complaints.  Recently, with the sit/stand desk it has been
ameliorated.  Ms. Fletcher did not attend to or report the coccyx pain to Dr. McLeod,
blaming it on there being insufficient time in her appointments.  However, Dr. Gittens
concludes that it is difficult to relate the coccyx symptom to either of the
two accidents.  I accept his evidence, and the plaintiff’s final submissions
agreed that there is insufficient evidence on which to base a finding that the
first accident was the cause of the coccyx pain.

[240]     There is
also continuing pain in Ms. Fletcher’s left knee.

[241]     The
emotional, psychological and psychiatric problems as a result of the first
accident had the most significant detrimental effect on her quality of life. 
The evidence of her husband and her mother was compelling:  Mrs. Rutter
feels that she had lost not only her husband but also her daughter, and Kevin
would like to have his wife back.

[242]     I rely
upon and accept the evidence of Dr. Shane and Dr. Krywaniuk.  The
experience of the pain from the physical injuries led to and caused the
psychiatric conditions.

[243]     Dr. Krywaniuk
stated that “the major consequence of Ms. Rutter’s accident have been in
the emotional domain and are coupled to symptoms of depression and anxiety.” 
He opines that she “has developed a maladaptive psychological adjustment
pattern in response to her accident and injury she sustained as a result.”

[244]     The
diagnosis of Dr. Shane was that she had Major Depression, now in
remission, Somatic Symptom Disorder, persistent and moderate, Post Traumatic
Stress Disorder, now sub-clinical, Panic Disorder in remission, and Excoriation
Disorder, chronic.  The symptoms include underlying depression, and a sustained
sense of sadness, some obsessive-compulsive traits, and ongoing anxiety.  She
continues to struggle to maintain her relationships with family and friends and
her equilibrium while at work.  Her emotional suffering has been profound.  It
has also improved and ameliorated, although it continues to affect her life.  Dr. Shane
stated that with appropriate support there is a reasonable chance this will
resolve to a reasonable degree.

[245]     Dr. McLeod
noted in her last report that the anxiety and depression are not gone but doing
better.  From the first to second report of Dr. Shane, improvements are
noted in all areas except for Somatic Symptom Disorder.  He states in his last
report that although he recommended that she have psychotherapeutic support, Ms. Fletcher
had not continued with her counsellor.  He concluded that it was perhaps because
she had been able to manage.

[246]     The period
of disability was four months following the first accident.  In 2009, after
approximately two years, her physical injuries were 50% to 60% resolved.  The
self-reports of pain using the pain scale are not of assistance since with pain
at 8 out of 10, Ms. Fletcher worked long hours for six months in the winter
of 2009-2010.  Dr. McLeod concludes that with regard to some jobs and
recreational activity, the chronic neck and low back pain will be partially
disabling.  Dr. Gittens states that the chronic neck and back pain:  “will
result in a long-term, possibly permanent, partial disability.”

[247]     I accept
the evidence of Dr. Shane that due to the psychiatric issues, Ms. Fletcher
was unable to work for the eleven months of unemployment from September 2010. 
I also accept the evidence of Dr. Shane that:  “there is no evidence she
is disabled in any way whatsoever to work in the type of position, in which she
is now involved.”  Dr. Robinson opines, and I accept his evidence that, Ms. Fletcher
has proven to be capable of working full-time in a job with light physical demands.

[248]     I do not
accept the opinion of Dr. Stewart that Ms. Fletcher is not able to
sustain her present work schedule.  The opinion is based on an assumption that
the plaintiff spends every other weekend in bed.  That is not a fact found by
the court.  Further, Dr. Stewart did not know or did not take into account
the plaintiff’s admirable physical exercise regime and abilities.  The opinion
was based on her incomplete understanding of the factual background.  Further,
when Dr. Stewart was questioned in cross-examination about other facts
before the court, she did not acknowledge any adjustment to her opinion.  She
therefore assumed to some degree the role of advocate for the plaintiff.

[249]     With
regard to the indication of thoracic outlet syndrome made only by Dr. Stewart,
I prefer the evidence of Dr. Gittens who did not consider this a possible
diagnosis.

[250]     The most
helpful description of the effects of the second accident is found in the
report of Dr. Gittens.  He states that the aggravation from the second
accident was temporary and the ongoing neck and back symptoms are residual from
the first accident.  This accords with the evidence of the plaintiff.  The
aggravation lasted approximately four months.

[251]     The
defendants submit that the present neck and back pain and present depression
were caused in part by prior motor vehicle accident injuries and by previous
periods of depression.  The fact that she had those injuries and symptoms in
the past and was more susceptible after the first accident does not assist the
defendants.  I am satisfied that the neck and back pain and depression as set
out above are caused by the first accident.

[252]     Ms. Fletcher
is both stoic and prone to catastrophizing.  She was tested by Ms. Boniface
as having “a very high level of perceived injustice and a very high level of
catastrophic thinking.”  Her accomplishments in overcoming adversity are many
notwithstanding her perception.

[253]     Although her
parents separated for a time when she was a child and she was the victim of
significant bullying during junior high, Ms. Fletcher completed high
school and succeeded in her post-secondary academic pursuits at Douglas College
and the Banff Centre.  She began a career in stagecraft and design.

[254]     Since the
first accident, Ms. Fletcher has done her best to move forward.  When she
could not meet the physical demands of her pre-accident employment, she
obtained a series of positions better suited to her post-accident physical
capabilities, even though they were less rewarding jobs.  She attempted to find
work related in some way to the entertainment and event industries, such as her
job with Panther working on Live City sites for the 2010 Olympics.

[255]     After a
period of severe depression, she obtained a temporary position with Comedy Central
beginning nine days after the second accident.  Ms. Fletcher obtained her
current job with Golder in April 2012, despite the fact that her father had
been diagnosed with terminal cancer in February 2012.  Ms. Fletcher
weaned herself off her anti-depressant medication to support her family, and
was able to excel at her new job.

2.              
Authorities and Assessment

[256]     The
plaintiff seeks $110,000 to $140,000 in non-pecuniary damages relying on Shapiro
v. Dailey, 2010 BCSC 770, varied on other grounds 2012 BCCA 128; Crane
v. Lee, 2011 BCSC 898; Sekihara v. Gill, 2013 BCSC 1387; and Marois
v. Pelech, 2007 BCSC 1969, aff’d 2009 BCCA 286.

[257]    
Shapiro is particularly helpful in its similarities in the pre-
and post-accident effects on the plaintiff.  In that case, the plaintiff was 23
years old and happy, ambitious and outgoing when she was involved in the motor
vehicle accident.  After the accident, along with her physical injuries, the
plaintiff suffered from multiple psychological issues, including chronic pain
disorder, depressive symptoms, post-traumatic stress disorder, anxiety disorder
and panic attacks.  Like the plaintiff in this case, Ms. Shapiro went from
being very active to “a lifetime of struggling with pain and fatigue in
everything she does” (at para. 59).  The description in that case is not
unlike the circumstances of Ms. Fletcher:

This has wrought a profound
change in every aspect of her life, from interpersonal relationships with her
family, friends and partner to her ability to love, work, play, exercise,
relax, sleep, and her ability to move forward with her life (at para. 59).

The plaintiff was awarded $110,000 in non-pecuniary
damages.

[258]     In Crane,
the extent of the plaintiff’s psychological effects was comprised of panic
attacks associated with driving.  The physical injuries included soft tissue
injuries in her neck and upper back and a herniated disc in her lower back. 
The pain associated with her lower back was found to likely be permanent.  I
find that in this case the psychological effects were much less severe but the
physical effects were somewhat more serious.  She was awarded $100,000 in
non-pecuniary damages.

[259]     In Sekihara,
the plaintiff had some psychological effects.  She experienced depression due
to her pain and the inability to do what she used to be able to.  The
psychiatrist in the case found that she had a chronic pain disorder and periods
of depression.  The depression was found to be caused by the accident.  Her
physical symptoms related to her lower back but were found to be significant
due to her previous professional snowboarding career and she was awarded
$130,000.

[260]     Athough in
Sekihara the injuries were similar to those suffered by Ms. Fletcher,
the effect on the plaintiff’s life was more severe.  Ms. Sekihara lost her
established career as a professional snowboarder and photographer about which
she was passionate and which formed the basis of her life in Whistler as well
as her work.  In this case, Ms. Fletcher had a dream of a career in
stagecraft and design, but was not working in that area at the time of the
first accident.

[261]     In Marois,
the plaintiff suffered from suffered from PTSD, a chronic pain disorder and
depression as the result of the accident.  The plaintiff was also awarded $130,000.

[262]     The
defendants rely on Ladret v. Stephens, 2013 BCSC 1999; Azuma-Dao v.
MKA Leasing Ltd., 2012 BCSC 10; Loveys v. Fleetham, 2012 BCSC 358;
and Klim v. Purdy, 2014 BCSC 578.  They suggest that non-pecuniary
damages of $75,000 are appropriate in this case.

[263]     In Ladret,
the plaintiff suffered from chronic, significant back pain and was awarded
$60,000 in non-pecuniary damages.  However, there were no psychological
conditions in this case that developed as a result of the accident.  There was
no mention at all that her pain resulted in symptoms of depression.

[264]     In Azuma-Dao,
the plaintiff had some depressive symptoms and found to be withdrawn and moody
as a result of her chronic pain.  However, her psychological symptoms are
significantly less severe and did not result in any psychiatric diagnoses.  She
was awarded $65,000 in non-pecuniary damages.

[265]     In Loveys,
there is an extensive discussion on the plaintiff’s psychological symptoms but
the trial judge ultimately finds that none were caused by the accident.  She is
awarded $65,000 for soft tissue injuries in her neck, back and shoulder and the
chronic pain associated with them.  Given this finding, this case is similar to
the others relied on by the defendants as the psychological symptoms were not
factored into any assessment of damages.

[266]     In Klim,
there is also no discussion of psychological symptoms.  The frustration that
the plaintiff experienced in that case as a result of his pain is
distinguishable from the multiple psychological conditions that are present in
this case.  The physical injuries were neck and should pain and headaches and
the plaintiff was also awarded $65,000.

[267]     I find all
of the cases relied on by the defendants distinguishable as none address the
serious level of psychological effects that have been found in this case. 
While the physical injuries are somewhat similar, the damages awarded in those
cases are insufficient considering the additional psychological symptoms of Ms. Fletcher
that were the result of the first accident.

[268]     The
ability of Ms. Fletcher to function physically, recreationally, socially
and vocationally has been significantly affected.  The witnesses all described
the physical and emotional effects of the first accident upon Ms. Fletcher,
and those who knew her best gave compelling testimony regarding the changes
they had observed.  The evidence of the expert witnesses upon which I rely is
that there have been improvements in the seven years since the first accident. 
The physical effects were most acute for the first four months, then improved
again after two years.  However, the emotional and psychiatric effects worsened
at two years when Ms. Fletcher realised the limitations on her career
path.  After a further year, she was able to return to work, and her emotional
stability has continued to improve.  There are present physical and emotional
effects, and the physical effects on her neck and low back are likely chronic.

[269]     Ms. Fletcher
was disabled for four months.  I am mindful that the ongoing physical injuries
have resulted in the loss of a dream for Ms. Fletcher.  Taking into
account the evidence in this case and the guidance provided by the cases cited,
I award the plaintiff damages in the amount of $115,000 under this head for
both accidents.

E.             
Loss of Past and Future Housekeeping Capacity

[270]     The law
with respect to loss of past and future housekeeping capacity is summarized in Klim
as follows:

[146] Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178
(C.A.), is the leading authority in British Columbia on this head of damage. 
It is a separate head of damage that can be awarded in circumstances where the
plaintiff’s capacity and ability to perform household tasks have been
compromised by injury.  The damage award is to be commensurate with the loss.

[147]    In Wesbroeke v.
Brizuela, 2014 BCCA 48, at paras. 74-77, Garson J.A. stated for the
Court of Appeal:

[74]      I agree that the trial judge miscategorised the
homemaking award under the head of future cost of care damages.  In O’Connell
v. Yung, 2012 BCCA 57 at paras. 59−68, this Court clarified that
homemaking costs, properly considered, are awarded for loss of capacity and are
distinct from possible future cost of care claims.  An award ordered for
homemaking is for the value of the work that would have been done by the
plaintiff but which he or she is incapable of performing because of the
injuries at issue.  The plaintiff has lost an asset: his or her ability to
perform household tasks that would have been of value to him or herself as well
as others in the family unit but for the accident.  This is different from
future care costs where what is being compensated is the value of services that
are reasonably expected to be rendered to the plaintiff rather than by
the plaintiff.

[75]      In O’Connell, the required service was
correctly seen as damages for future cost of care.  What was required in that
case were the services of a personal care attendant for 16 hours daily to
ensure the safety of the plaintiff, who had suffered a brain injury, in addition
to cuing and guiding her in activities of daily living.  At the time of trial
the plaintiff’s husband was rendering this care on a full-time basis.  The
judge erred by misapplying case law related to homemaking to find that an award
for future cost of care was justified regardless of whether there was a
reasonable expectation that the financial losses would be incurred.

[76]      As noted in O’Connell damages for loss of
capacity to complete homemaking tasks are not dependent upon whether
replacement costs are actually incurred because what is being compensated is
the loss of capacity itself.  In contrast, damages for future cost of care are
“directly related to the expenses that may reasonably be expected to be
required” (O’Connell at para. 67) and cannot be awarded should no
such reasonable expectation of an actual future expense be found.  In the
instant case, the evidence supports an award for the loss of capacity to
perform certain homemaking tasks; however, I agree that this award should be
approached conservatively.

[77]      Gibbs J.A., speaking for the majority in Kroeker,
suggested a cautionary approach to awards for the loss of ability to perform
household tasks.  At para. 29 he wrote:

There is much merit in the contention that the court ought
to be cautious in approving what appears to be an addition to the heads of
compensable injury lest it unleash a flood of excessive claims.  But as the law
has developed it would not be appropriate to deny to plaintiffs in this
province a common law remedy available to plaintiffs in other provinces and in
other common law jurisdictions.  It will be the duty of trial judges and this
Court to restrain awards for this type of claim to an amount of compensation
commensurate with the loss.  With respect to other heads of loss which are
predicated upon the uncertain happening of future events measures have been
devised to prevent the awards from being excessive.  It would be reasonable to
expect that a similar regime of reasonableness will develop in respect of the
kind of claim at issue in this case.

Ultimately, the award for loss of ability to perform
household tasks in Kroeker was reduced by two-thirds, from $23,000 to
$7,000.  As in Kroeker, a cautionary approach should be taken here.

[78]      Mr. Kerr estimated the annual cost of
replacement homemaking at $1,872 on the basis that Mr. Westbroek required
three hours of homemaking services every two weeks to assist with his share of
household tasks.  He based his calculation on an hourly rate of $24.00.  My
understanding of the evidence is that Mr. Westbroek did not pay anyone
else to perform the household chores he was unable to do himself but rather his
wife assumed those responsibilities.  The judge appears to have awarded and
capitalized the $1,872 to age 65.  There was no evidence at the second trial as
to the allocation between the spouses of household tasks.  A cautionary
approach would suggest that this award should be reduced by two thirds.

[271]     The
evidence of Ms. Fletcher regarding her ability to perform housework was
inconsistent.  In direct examination, she testified that the ratio was about
70:30 between her and her husband before the first accident and a ratio of
40:60 at present.  However, in cross-examination she agreed that she is able to
do about 75% of the household tasks.

[272]     The report
of Ms. Boniface states that Ms. Fletcher does 75% of her pre-accident
duties.  That percentage is consistent with the list provided by Ms. Boniface
which indicates difficulties with the tasks involving bending and reaching such
as high level dusting, unloading the dishwasher, vacuuming and cleaning the
litter box.  It is bending that throughout the evidence has been identified as
a cause of pain.

[273]      I award
the amount of $4,000 for loss of past and future housekeeping capacity.

F.             
Past Income Loss

[274]     At the
time of the first accident, the plaintiff was employed as an inside sales
representative for Cinequip.  She remained off work following the first
accident from July 21, 2007 until December 3, 2007.  The parties have agreed on
the amount of the plaintiff’s net past income loss for that interval of
$11,328.53.

[275]     The
plaintiff did not miss any work as a result of the second accident.

G.            
Loss of Opportunity

[276]     Ms. Fletcher
claims damages for the opportunities she lost to earn income following her
lay-off by Panther (over 11 months); the four months she was off after her job
at Comedy Central ended in December 2011, and before she started her current
job with Golder on April 12, 2012; the additional on-call work she could not
accept in the entertainment industry; and income lost from her own business. 
It is submitted that but for the first accident, Ms. Fletcher would have
remained consistently employed as demonstrated by her pre-accident work
history.  With the exception of the year of the first accident, Ms. Fletcher
earned an average employment income of approximately $35,000 in each year since
2003.

[277]     Before the
first accident, Ms. Fletcher worked on a casual, on-call basis for
companies such as Showtime.  She remained on Showtime’s call list for some
time, but was unable to accept such work after the first accident because of
the heavy labour required.  The plaintiff says that her inability to take
advantage of all employment opportunities previously available to her resulted
in financial hardship.

[278]     However,
the plaintiff did relatively little call out work prior to the first accident. 
Although there is a claim that she lost the opportunity for “call outs” as a
freelance roadie for Showtime, in 2005 she earned only $97.00 from Showtime,
and $713.00 in 2006, notwithstanding that Mr. Matthews testimony that she
would have been at the top of the call out list.  She had no call outs in the
first half of 2007 to the date of the first accident.  The claim for lost
opportunity to earn income as a freelance lighting worker is not proven.

[279]     I rely on
the evidence of Dr. Shane that Ms. Fletcher was unable to work after
the layoff from Panther in September 2010 due to the first accident.  But for
the first accident, she would have earned that additional income.  After making
allowances for the short period that would have been required to obtain a new
job after being laid off by Panther in any event, and for other contingencies
of the labour market, I accept Ms. Fletcher’s claim of $30,000 for the
loss of opportunity to earn income from October 2010 to September 2011.

[280]     There is
no award for the claimed additional $20,000 for the four month period of
unemployment in late 2011 and April 2012.  I am not satisfied that it was
caused by the first accident.  Nor is there any evidence that she lost income
from her own business as a result of the accident.

[281]     Ms. Fletcher
is therefore awarded damages in the amount of $30,000 for loss of past income
earning opportunities as a result of the first accident.

H.             
Loss of Future Earning Capacity

[282]     The law
governing awards of damages for loss of future income and loss of future income
earning capacity is summarized in Shapiro as follows:

[101]    The law concerning loss of future income and loss of
future income earning capacity was recently reviewed most helpfully by Garson
J.A. for the court in Perren v. Lalari, 2010 BCCA 140.  Madam Justice
Garson again approved the considerations set out by Finch J. (now C.J.B.C.) in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), as previously approved by
the Court of Appeal in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393. 
What Mr. Justice Finch had said was this:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case.  Some of the
considerations to take into account in making that assessment include whether:

1.   The plaintiff has been rendered less capable overall
from earning income from all types of employment;

2.   The plaintiff is less marketable or attractive as an
employee to potential employers;

3.   The plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4.   The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[102]    Madam Justice Garson then went on to say this:

[12]      These cases, Steenblok [v. Funk (1990), 46
B.C.L.R. (2d) 133 (C.A.)], Brown, and Kwei, illustrate the
two (both correct) approaches to the assessment of future loss of earning
capacity.  One is what was later called by Finch J.A. in Pallos [v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260] the
‘real possibility’ approach.  Such an approach may be appropriate for a
demonstrated pecuniary loss is quantifiable in a measurable way; however, even
where the loss is accessible in a measurable way (as it was in Steenblok),
it remains a loss of capacity that has been compensated.  The other approach is
more appropriate for the loss, although proven, is not measurable in a
pecuniary way.  An obvious example of the Brown approach is a young
person whose career path is uncertain.

[32]      A plaintiff must always prove … that there is a
real and substantial possibility of a future event leading to an income loss. 
If the plaintiff discharges that burden of proof, then depending upon the facts
of the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown.  The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok.  The
latter approach would be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych [v. Vallianatos, 2010 BCCA 20].

[283]     With
regard to future loss of earnings, the plaintiff submits as follows:

On the evidence before this Honourable Court, it is clear
that Ms. Fletcher’s capacity to earn income has been diminished as a
result of the First Accident and, as such, that she has lost a capital asset.

Given the nature and extent of Ms. Fletcher’s physical
and psychiatric injuries, and her ongoing disability arising from the first
accident, Ms. Fletcher is less capable overall from earning income from
all types of employment; she is less marketable or attractive as an employee to
potential employers; she 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 she is less valuable to herself as a person capable of earning
income in a competitive labour market.

It is also clear that there are
very real and substantial possibilities that such diminished earning capacity
will result in future economic losses for Ms. Fletcher.  Before the First Accident,
Ms. Fletcher had a solid work history; she worked part time during high
school and had been consistently gainfully employed and/or pursing [sic]
academic credentials and experience to further her chosen career.

[284]     The
plaintiff seeks between $150,000 and $350,000 under this head of damages.

[285]     It is the
defendants’ submission that there are no damages that should be awarded under
this heading, or at most, the amount of $10,000.  They say:

The Plaintiff is presently employed in a position where she
earns almost 50% more annually than she had in any year prior to the 2007
accident.  She has moved from a contract temporary position, to a permanent
position in 2013 and in February of 2014, received a glowing formal employee
review from her employer, noting she had become a valuable member of the Golder
team.  She works for a company rated by the Financial Post as one of the best
employers in the country.  Golder is a company that has a specific stated
policy to accommodate the disabilities or limitations of its employees. 
Moreover, its work in the mining and construction sector places it in a
Statistics Canada category that enjoys a rate of employment almost 50% higher
than in the field of entertainment and the arts.

In short, whatever might be the
nature and extent of residual symptoms from the motor vehicle accidents, there
is no issue; they do not result in a loss of earnings.

[286]     The
plaintiff must prove that there is a real and substantial possibility of a
future event leading to an income loss.  If that burden is discharged, then the
quantification of the loss of earning capacity may be proved either on the
earnings approach or the capital asses approach (Perren v. Lalari, 2010
BCCA 140 at para. 32).

[287]     As stated
by the British Columbia Court of Appeal in Kim v. Morier, 2014 BCCA 63: 
“The plaintiff must show that it is a realistic possibility she will be less
able to compete in the marketplace ‑ with economic consequences, not
merely psychological ones” (at para. 8).

[288]     In this
case, the plaintiff has not proven a real and substantial possibility of an
income loss.  Although I accept that it was her goal to have a career in
stagecraft, she admitted in cross-examination that she had left that field,
albeit with an intention of the departure being temporary, prior to the first
accident.  Ms. Fletcher took on the physically demanding job at Cinequip
in the warehouse doing work that could be compared to that of a roadie.  In the
year prior to the first accident, 2006, her earnings at Cinequip were $31,291.

[289]     The
plaintiff spoke of her dream to work at Cirque du Soleil which I understand is
the pinnacle of a career in stagecraft.  I characterise this as a dream since
there was no evidence of a plan by which such employment could be obtained. 
Many of the Cirque shows are in Las Vegas; Ms. Fletcher does not have
either the immigration status to work in the United States nor did she address
how that would be obtained.  The other Cirque shows are travelling productions;
nor was there evidence regarding the practical considerations of life on the
road, particularly at the child bearing and rearing stages of a family.  Further,
there was no evidence of potential earnings at Cirque du Soleil for stagecraft
jobs.

[290]     There may
be other potential jobs in stagecraft if Ms. Fletcher decided to return to
that area of work.  In that case, she would be impeded by her chronic neck and
lower back pain from physically demanding positions.  However, there is no
evidence that she would suffer a loss of income from her present position or a
comparable position as a controls administrator.  The loss of her physical
ability has not resulted in a loss of income.

[291]     Ms. Fletcher
has proven herself to be a capable and valued employee as a controls
administrator.  Her job at Panther ended with a lay-off as a result of a slow
market.  She is excelling at Golder.  Notwithstanding her fears of the security
of her job at Golder, particularly understandable given her ongoing depression
and sadness, the evidence of the plaintiff and Ms. Salo does not establish
workplace uncertainty to the degree that her job is not stable.  Indeed, Ms. Fletcher
reported to Ms. Boniface in July 2014 that she had a good job with a good
employer.

[292]     At Golder Ms. Fletcher
earns $50,000 per year plus benefits.  Ms. Fletcher has the capacity to
continue to earn such income in the future.  As stated by Drs. Shane and
Robinson, she is not disabled or prevented physically or psychologically from
doing this type of work on a full-time basis.

[293]    
Ms. Fletcher relies on the opinion evidence of Dr. Stewart
that she did not think that Ms. Fletcher’s current position was
sustainable.  Dr. Stewart stated that “it would be preferable for Ms. Rutter
to work three or four days of the week rather than full time and for her to
have mid-week breaks (that is, that she work Monday, Wednesday and Friday, or
Monday/Tuesday and Thursday/Friday, to allow her to recover better from her
work days rather than becoming progressively sore and tired over her
workweek.”  For the reasons set out in the discussion above, I do not accept
the opinion of Dr. Stewart in this regard and place no reliance on this
recommendation because it is based on an inaccurate
understanding of the facts, such as the frequency that Ms. Fletcher spends
weekends in bed.  Ms. Fletcher has been physically able to do much more
than Dr. Stewart understood or acknowledged.

[294]     Ms. Fletcher
may change paths and return to school in order to pursue a career in interior
design.  She testified that although she chose stagecraft and design over
interior design when she began her studies at Douglas College, she has been
considering going back to school to attempt to find a career in a creative
field.  This change of career is a real possibility on the evidence.  However,
it is not because she is unable to earn income in a job such as she presently
holds at Golder.  A change of career would be a choice, not an economic
necessity.

[295]    
As stated by Mr. Justice Silverman in Gosselin v. Neal, 2010
BCSC 456, there is no real and substantial possibility that the lost
physical capacity will result in actual income loss now or at any time in the
future:

[68]      In this case, I have already found that the plaintiff
earns as much as a service manager as she would if she were able to work as a
mechanic.  There is nothing in the evidence which raises the substantial
possibility that this is going to change at any time in the future.

[69]      …there is no
substantial possibility that this lost capacity will result in actual income
loss, now or at any time in the future.  The reasoning that flows from Perren
leads therefore to the conclusion that the plaintiff is not entitled to be
compensated under this head of damages.

[296]     Given the
finding that there is no substantial possibility of an income loss, it is not
necessary to consider the future income loss evidence of the economist, Mr. Lakhani.

[297]     Under this
head of damage, Ms. Fletcher is not awarded any damages.

I.                
Cost of Future Care

[298]     The
medical experts who have prepared written opinions have made recommendations
with respect to the future care and assistance required by Ms. Fletcher.

[299]     The legal
framework for the cost of future care was well set out by Ballance J. in S.R.
v. Trasolini, 2013 BCSC 1135 at paras. 222-224:

[222]    The purpose of damages for the cost of future care
is to compensate for a financial loss reasonably incurred to sustain or promote
the mental and/or physical health of an injured plaintiff: Gignac at
para. 30.  The services and items must be justified as reasonable in the
sense of being medically required or justified, and in the sense that the
plaintiff will be likely to incur them based on the evidence: Milina; Izony
v. Weidlich, 2006 BCSC 1315; Kuskis v. Tin, 2008 BCSC 862.

[223]    Recommendations made by a medical doctor or made by
various other health care professionals are relevant in determining whether an
item or service is medically justified: Gregory at para. 38.  An
evidentiary link between the medical assessments and the recommended treatment
is essential: Gregory at para. 39; Gignac at paras. 31-32.
General contingencies and those specific to the plaintiff are to be taken into
account where appropriate: Gignac at para. 52.

[224]    The approach to be taken in assessing future care
costs was settled by the Supreme Court of Canada in Krangle (Guardian ad
litem of) v. Brisco, 2002 SCC 9, at paras. 21-22:Damages for cost of
future care are a matter of prediction.  No one knows the future.  Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can.  In doing so, courts rely on the
evidence as to what care is likely to be in the injured person’s best
interest.  Then they calculate the present cost of providing that care and may
make an adjustment for the contingency that the future may differ from what the
evidence at trial indicates.

The resulting award may be said to reflect the reasonable or
normal expectations of what the injured person will require.  Jane Stapleton,
“The Normal Expectancies Measure in Tort Damages” (1997), 113 L.Q.R. 257, thus
suggests, at pp. 257-58, that the tort measure of compensatory damages may
be described as the “‘normal expectancies’ measure”, a term which “more clearly
describes the aim of awards of compensatory damages in tort: namely, to
re-position the plaintiff to the destination he would normally have reached …
had it not been for the tort”.  The measure is objective, based on the
evidence.  This method produces a result fair to both the claimant and the
defendant.  The claimant receives damages for future losses, as best they can
be ascertained.  The defendant is required to compensate for those losses.  To
award less than what may reasonably be expected to be required is to give the
plaintiff too little and unfairly advantage the defendant.  To award more is to
give the plaintiff a windfall and require the defendant to pay more than is
fair.

[300]     The
plaintiff submits that:

The evidence establishes that Ms. Fletcher
will need ongoing care, treatment and rehabilitation well into the future.  All
of the medical experts whose opinions are in evidence have made recommendations
for such care treatment and rehabilitation.  The cost of those recommendations
was the subject of the expert opinions prepared by Ms. Boniface and the
present value of such costs was the subject of the opinions of Mr. Lakhani. 
The recommendations and the opinions of the experts accurately reflect a
financial loss that Ms. Fletcher will reasonably incur to sustain or
promote her mental and physical health.  The evidentiary link between the
medical assessments and the recommended treatment care and assistance is found
in the opinions adduced on behalf of the plaintiff as summarized below.

[301]     It is the
submission of the defendants that:

Ms. Boniface prepared a cost of care/life plan report
without the benefit of a functional capacity evaluation.  She acknowledged the
value for her and of course for the Court, in having a functional capacity
evaluation.  That type of report frequently presented to a court in support of
a future care claim, provides an objective assessment of the Plaintiff’s
functional capacity as determined in a laboratory setting.  Through the testing
of ability to sit, stand, bend, lift, push and pull, an occupational therapist
can with the benefit of their education and training, extrapolate and offer on [sic]
opinion on functional impairment in the workplace and the home.  Without such
an evaluation available, Ms. Boniface acknowledged she was significantly,
if not exclusively, dependent upon subjective reports from the Plaintiff as to
what she could and could not do.  To the extent this Court finds those reports
were to a degree inaccurate or imprecise, the opinion of Ms. Boniface is
impaired accordingly.  It is noteworthy that in the limited "mini"
functional assessment performed by Ms. Boniface, the Plaintiff in fact
displayed normal and full function in all ranges of motion, including her neck
and lower back.  Ms. Boniface made no attempt to reconcile that normal
functional assessment with the disability reported by the Plaintiff.

Dr. Shane and Dr. Robinson’s assessment changed
dramatically from their earlier opinions.  Those changes are not incorporated
in Ms. Boniface’s opinion.  It would seem elementary that a future cost of
care assessment, if it is going to be of any value to the trier of fact, must
of necessity incorporate the most current and compelling medical evidence as at
the date of trial.  In her case, it did not.  Her consideration of the reports
of Dr. Stewart of July 18, 2014 and Dr. McLeod of July 20,
2014 in the Addendum report of July 21, 2014 did not remedy this defect.

The Plaintiff’s Mental Status testing conducted by Ms. Boniface
indicated a very high level of perceived injustice and a very high level of
catastrophic thinking.  However, Ms. Boniface appears not to have
considered how that catastrophic thinking impacted the Plaintiff’s self reports
of pain, disability and functional ability.  The evidence before the Court
suggests that the Plaintiff has a propensity for catastrophic thinking or pain
focus as described by Dr. Shane which in turn leads to a disconnect
between both experienced and reported pain levels, reported disability and actual
displayed functional ability.  In such a case, surely an adjustment must be
made to the Plaintiff’s self reports to determine the Plaintiff’s actual
functional ability and support requirements.  Ms. Boniface made no such
adjustment.

Additionally, Ms. Boniface did not attempt to make a
distinction between those recommendations for care necessitated by back pain
from the accident and coccyx pain unrelated to the accident, for which no
compensation would be payable.  It is trite that where the Plaintiff is
impaired by injuries stemming from divisible tortious and independent
non-tortious causes, she would only be compensated for those arising from
tortious causes.

Dr. Gittens testified in
cross-examination, the coxygeal injury would impact the Plaintiff in her work,
homecare and future childcare activities.  Any award which compensates the
Plaintiff for the undifferentiated broad category of “back pain”, must be
reduced by the consequences of the non-tortious pain that Dr. Gittens said
was reported as "severe" and paramount in the areas of pain reported
by the Plaintiff.

[302]    
The evidence of Ms. Fletcher regarding the recommendations in the
July 17, 2014 report and the July 23, 2014 addendum prepared by Ms. Boniface
was as follows:

·       Robax
Platinum:  She takes Robax Platinum 3-4 times per week to control neck, back
and occasionally headache symptoms.

·       Advil
Liquid Gel:  She takes the Advil liquid gels as needed for migraines and it is
sometimes effective.

·       Naproxen: 
She still takes Naproxen 3-4 times per week for neck and back muscle stiffness.

·       Melatonin: 
She takes Melatonin almost every weeknight to calm herself, aid in sleep and
reduce nervous tension.

·       Physiotherapy: 
She fairly stated that she did not find physiotherapy helpful and would prefer
a program similar to the one offered by trainers at Karp Rehabilitation.  If
physiotherapy was recommended by her physician, she would attend.

·       Pool
Membership (OnePass):  She found aqua therapy helpful as it reduced the impact
on her body and was more comfortable for her.  She said she would pursue such
therapy with a pool membership through a local community centre.

·       Occupational
Therapy:  She fairly stated that she had already had an ergonomic assessment at
work and did not believe she needed any further occupational therapy at
present.  If she had a different job, she would avail herself of this
assistance.

·       Psychological
support and treatment:  She stated that she would pursue further psychological
treatment.  Cam Oxendale was very helpful.  She would follow any treatment recommendations
made by her physician.

·       Chiropractor:
She did not find chiropractic treatments helpful.  Ms. Fletcher said that
she found that spinal decompression treatments alleviate discomfort.  The relief
is short-term but joyous.

·       Massage
Therapy:  She found massage therapy helpful, again with relief lasting couple
of days.  She would pursue further massage therapy.

·       Housekeeping
support: She described experiencing pain and difficulty performing many
household tasks, such as vacuuming, extending her arms, squatting or bending to
pick up simple items around the house, dusting, washing the floors, and
cleaning the cat litter box.  When asked whether the impediment to such tasks
was her coccyx, she said that area does not really bother her except when
sitting and that her coccyx is not in constant pain.  She still manages to
perform nearly 100% of the shopping and cooking, and does most of the laundry. 
She avoids vacuuming, and cleaning tasks which bring on a great deal of pain,
discomfort and stiffness, especially in her lower back.  She needs a day of
recovery, the next day, in bed or relying upon medication.  Ms. Fletcher
would avail herself of housekeeping support, which she believes would be
helpful.

·       Childcare
Support: She has a strong desire to have children.  She is restricted in
lifting and is unable to lift even modest weights comfortably.  The weight of
the laundry baskets she handles can cause pain.  She would avail herself of
assistance with childcare when she has children.

·       Wheeled
shopping cart: This device is not required at present because it would not be
useful in the context of her current residence.

·       Gardening
stool:  This item is not required because she has no garden at present and her
landlord is responsible for the yard work at present.

·       Orthotics:
She described Canadian Medi-Pain as having the latest in foot mapping
technology, which generates computerized images of feet to determine where
arches lie and to inform recommendations for the types of orthotics before they
are custom made.  This is covered under her medical plan.

[303]     The
plaintiff’s table below lists the “Item[s]/Service[s]” and the “Cost” of such
items and services using the same numbering as appears in Appendix “B” to Ms. Boniface’s
July 17, 2014 report and Appendix “A” to her July 23, 2014 addendum.

[304]     The
amounts claimed in the table below are stated in present value from Table 1 of
the July 24, 2014 report prepared by Mr. Lakhani of Peta Consultants.  The
items not listed in the table below are not being pursued based on the evidence
adduced from the plaintiff and other witnesses at trial.  I accept the evidence
of Ms. Fletcher and allow the following claims.

[305]     The
reasons following items are denied or reduced as follows:

– Supervision
of the home exercise and aquatic program is not an allowable item as Ms. Fletcher
has been actively involved in exercise programs since at least 2009.  The
set-up cost, which is allowed, can address any questions and provide direction.

–   One-half of the cost of massage
therapy is allowed as Dr. McLeod recommended that it continue for a time
shorter than contemplated in the claim.

–   The cost of spinal
decompression is not allowed.  Other than Dr. Stewart, the preponderance
of medical evidence which I accept is that this treatment is not in accordance
with the usual medical practice in such circumstances.  Chiropractic treatment
is not allowed because Ms. Fletcher did not find it helpful.

–   Housekeeping and childcare
support are reduced for the reasons set out in the submissions of the
defendants.  Ms. Boniface did not have the most recent medical opinions
and appears not to have been aware of the improvements in Ms. Fletcher’s
injuries.  Further, she was not aware of Ms. Fletcher’s program of
exercise and physical abilities, such as the report of having difficulty with
stairs but being able to hike the Coquitlam Crunch.  While I accept that the plaintiff
has ongoing low back problems that are responsible for pain on bending and
lifting, her range of motion, as noted, physical capacity, and other injuries
have improved.

–   The cost of orthotics is
covered by Ms. Fletcher’s medical plan.

[306]     The total therefore
allowed for the cost of future care is $102,764.

J.              
Damages in Trust

[307]     Ms. Fletcher
claims damages in trust for the time spent by her mother, Marion Rutter, and
her husband, Kevin Fletcher, taking care of her needs, primarily during the
first three to four months following the first accident, when her needs were
particularly acute.  Ms. Fletcher, her husband and her mother all gave
consistent accounts of the care and assistance provided to Ms. Fletcher
following the first accident.

[308]     Mrs. Rutter
stayed with her daughter for a number of days following the first accident
because she was afraid to be alone when Kevin had not yet returned from working
out-of-town.  Mrs. Rutter and Kevin Fletcher continued to assist Ms. Fletcher
with shopping, laundry, meals, driving, and other day-to-day needs as
required.  With respect to driving, the “Travel Expenses Owing” spreadsheet
prepared by Ms. Fletcher, lists the dates upon which “Mom drove” (23
trips) and “ Fiancé Drove” (24 trips) to various doctor, massage therapy,
physiotherapy and chiropractic appointments between July 26, 2007 and November
2, 2007.

[309]     The
assistance provided for the first four months, especially from Mrs. Rutter,
is more than what would reasonably be expected from family members.  This
exceeds the normal “give and take” which is necessarily part of family life.

[310]     Taking
into account the extent of assistance provided and the relatively short length
of time involved, I award to Ms. Fletcher the amount of $8,000 in trust
for Mrs. Rutter, and $6,000 in trust for Kevin Fletcher, for a total of $14,000
in trust.

K.             
Accelerated Depreciation and Loss of Use

[311]     As a
result of the first accident, Ms. Fletcher’s 2006 Toyota Matrix sustained
damage that cost $9,282.46 to repair.  She says that its value was reduced as a
result.  When Ms. Fletcher and Kevin Fletcher became frustrated with
repeated trips to the automotive repair shop and what they viewed as inadequate
repairs to the vehicle, prepared it for sale.  It was a fully loaded 2006
Matrix, which appeared to be in reasonably good condition.  As they did not
believe they would be able to sell it privately with its history, they traded it
in at a dealership.

[312]     The defendants
dispute this claim.

[313]     Mr. Scarrow’s
Accelerated Depreciation Assessment Report, dated September 8, 2011, includes
the following:

It is my opinion the result of
the collision repairs upon the vehicles Actual Cash Value was accelerated in
terms of depreciation by Two Thousand Five Hundred Dollars [$2500/Cdn.] plus
applicable taxes.

[314]     As set out
in Signorello v. Khan, 2010 BCSC 1448, such losses can include a “loss
of use and the inconvenience of having to return the vehicle on several
occasions” (at para. 33).  I am satisfied that the Fletchers suffered
these losses.  Their claim for damages for accelerated depreciation and loss of
use is allowed in full.  I award $2,500.

L.             
Special Damages

[315]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses that they incur as a result of an accident.  In this
case, Ms. Fletcher claims special damages in the amount of $23,358.33.  In
support of the claim, a detailed spreadsheet of the items purchased and
expenses incurred for treatment, travel, counselling and other expenses was
produced.

[316]     The amount
claimed has been reduced from the initial amount of $24,858.33, to reflect
removal of the claim for $500 as the Loss of ½ of Christmas Bonus, which was
included in the amount agreed upon between the parties in relation to the
plaintiff’s past income loss from July 21, 2007 until her return to work on
December 3, 2007.

[317]     The
defendants dispute only the three car payments claimed of $485.85 each, which
she had to make while her car was in the shop and not available for her use; an
orthopaedic mattress to attempt to address persistent discomfort and difficulty
sleeping; and duplication of medication expense.

[318]     I am
satisfied that Ms. Fletcher incurred the reasonable expenses claimed.  Her
claim for special damages is allowed in the amount of $22,639.10, which omits
the car payments and the amount of $261.68 for duplicate expenses.

V.             
CONCLUSION

[319]    
In summary, as a result of the injuries sustained in the accidents of July 21,
2007 and September 9, 2011, Ms. Fletcher is awarded damages as
follows:

[320]     With
regard to costs, unless there are matters of which I am unaware, Ms. Fletcher
is entitled to her costs on Scale B.  If either party seeks a different cost
result, submissions should be filed within 30 days of the date of these
Reasons.  A reply submission should be provided 21 days thereafter.

“The Honourable
Madam Justice Watchuk”