IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Manoharan v. Kaur, |
| 2016 BCSC 692 |
Date: 20160419
Docket: M123789
Registry:
Vancouver
Between:
Rani Manoharan
Plaintiff
And
Bhupinder Kaur
Defendant
Before:
The Honourable Mr. Justice Affleck
Reasons for Judgment
Counsel for the Plaintiff: | S.J. Turner S.J. Jaworski |
Counsel for the Defendant: | K. Armstrong |
Place and Date of Trial: | Vancouver, B.C. January 25-29, and February 1-4, 2016 |
Place and Date of Judgment: | Vancouver, B.C. April 19, 2016 |
Table of Contents
II. The Plaintiff’s Injuries
from the Car Accident of July 2010
B. Past
Loss of Earning Capacity
C. Loss
of Future Earning Capacity
E. Future
Loss of Housekeeping Capacity
[1]
On July 13, 2010 the plaintiff was injured in a motor vehicle accident
at the intersection of Fraser Street and 41st Avenue in Vancouver. The
plaintiffs vehicle was moving slowly west on 41st Avenue in the dedicated left
turn lane. The front of her vehicle was about 10 to 12 feet back from the
entrance to the intersection. The defendant’s vehicle emerged from a small
shopping centre adjacent to the north east corner of 41st Avenue and Fraser
Street. The defendant drove south across the westbound lanes on 41st Avenue
towards the left turn lane where the plaintiff’s vehicle was proceeding slowly
westbound. It appears the defendant intended to drive to the front of the left
turn lane to travel south on Fraser Street. In doing so the defendant did not
manage to place her vehicle at the head of the queue to turn left. Instead, the
left front of her vehicle collided with the right front of the plaintiff’s
vehicle.
[2]
The defendant apparently was shocked by the collision and drove away.
Shortly thereafter her adult son arrived at the accident scene and offered
assistance to the plaintiff.
[3]
The plaintiff had not seen the defendant’s vehicle at any time before
the collision. She had no means to avoid it and was driving properly in the
dedicated left turn lane. The defendant drove her vehicle imprudently causing
the collision. Liability is entirely that of the defendant.
I.
The Plaintiff
[4]
The plaintiff was born in South India in 1963 into a professional
family. She has a brother who is an Air India pilot and another brother who is
with the Indian foreign service in Jakarta and a sister who is a bank manager
in Chennai. The plaintiff has had ambitions consistent with her family
background.
[5]
The plaintiff married in India in 1986. She worked for a state
government. She obtained a Master’s Degree in India. In 1999 she applied to
study in Canada, Germany and the United States and was offered a position at
UBC. Her husband, who held a good position with the Indian government, agreed
to remain in India while the plaintiff came to Canada.
[6]
In 2001 the plaintiffs son, who was then about 15 years old, came to
Canada and the plaintiff’s husband followed in 2005.
[7]
While studying at UBC the plaintiff also worked part-time in a student
restaurant. For a time she had a position as a teaching assistant and she later
obtained a job in the UBC development department.
[8]
In about 2003 or 2004 the plaintiff returned to India to be with her
mother and her father-in-law. She then returned to Canada and obtained a Masters
Degree in Applied Sciences in 2007. She decided not to pursue work in that
field and switched to accounting because she had learned that she enjoyed
working with numbers. She took training at the Langara College.
[9]
Thereafter the plaintiff found work with JPMorgan Chase and then with a
company called Hari Stone Industries which sold marble and ceramic tiles. She
was dissatisfied with her income at that position and left the firm in 2008 as
she did with later jobs which she concluded had not provided her with enough of
a challenge.
[10]
In about 2009 the plaintiff began employment with Silvano Bolognese in
his accounting practice. The plaintiff found all aspects of accounting
interesting and began to take training to become a certified general
accountant. When the accident happened in July 2010 the plaintiff needed to
complete four additional courses to obtain her certification.
[11]
The accident injuries caused the plaintiff eventually to leave the Bolognese
accounting firm. She was not able to keep up with the pressures of the work.
Since 2014 she has been the part-time office manager of Northwest Holdings Ltd.
[12]
Before the accident the plaintiff was active in a variety of ways. She
walked and jogged for exercise. She was a frequent attender at the Hindu Temple
and also at Holy Rosary Cathedral. She was socially engaged with numerous
friends who she hosted at her home for meals and she described herself as
enjoying her life to the fullest. She frequently walked from her home to work a
distance of many kilometres.
[13]
In 2007 the plaintiff was a passenger in a car accident. She suffered a
back injury and attended a chiropractor for several sessions of treatment. The
back pain resolved in about six months. She had no other relevant health
problems prior to the accident.
[14]
In 2010 the plaintiff was diagnosed with hypothyroidism which was
treated and has been under control since about 2012. It causes no functional
problems. She also has an iron deficiency for which she receives injections. It
causes no functional problems.
II.
The Plaintiff’s Injuries from the Car Accident of July 2010
[15]
The plaintiff felt shocked immediately following the accident but had no
pain. She drove her car home. The next day she had heaviness and pain" in
her shoulders and back. She saw her family physician Dr. Singh. He
recommended she have physiotherapy and prescribed Tylenol No. 3.
[16]
The plaintiff began to develop left arm pain and tingling which then
spread to her right arm. By the end of 2010 she was experiencing such serious
pain that she attended hospital emergency department.
[17]
In a letter of opinion of October 30, 2015, Dr. Singh opined
that the accident caused the plaintiff to experience:
a) cervical
strain;
b) cervical
canal stenosis and nerve compression causing right arm radiculopathy;
c) vertigo;
d) left
arm radiculopathy;
e) depression
and anxiety;
f)
right shoulder derangement;
g) left
thumb De Quervains tenosynovitis;
h) chronic
pain syndrome with symptoms of decreased mood, decreased sexuality and sense
of herself; emotional lability with her husband;
i)
sleep disturbance;
j)
myofascial contracture;
k) left
thoracic outlet syndrome.
[18]
Dr. Amita Gandhi, a psychiatrist, has diagnosed the plaintiff with
major depression and chronic physical pain. She has experienced significant
impairment of her psychosocial functioning. The plaintiff reports crying
episodes, sleep disturbance, a marked decline in energy, motivation and ability
to concentrate. In Dr. Gandhi’s view the plaintiff’s psychiatric prognosis is
favourable if the physical pain decreases.
[19]
Dr. Jamie Patel is a registered psychologist. The plaintiff’s completion
of the back depression inventory in 2013 indicated depressive symptoms in the
severe range. Her depression is expressed in somatic form and those persons
with this diagnosis are probably despondent much of the time and withdraw
from previously enjoyable activities.
[20]
In July 2014 Dr. Patel concluded that the plaintiff met the DSM V criteria
for a major depressive disorder and a somatic symptom disorder with predominant
pain. Dr. Patel opined that the plaintiff has received some benefit from
psychological treatment but her symptoms remain intense and her gains are far
from consolidated.
[21]
Dr. Steven Helper is a physiatrist who has assessed the plaintiff on a
number of occasions, the most recent of which was on October 9, 2015. His
letter of opinion of that date reads in part:
b. At present, Ms. Manoharans verbal history and
displayed physical examination do not lead to the impression of nerve root
irritation from the cervical spine or rotator cuff tendinopathy from either
shoulder as a primary pain generator.
i. Ms. Manoharans current
presentation is most in keeping with chronic neck pain that is potentially
reflective of mechanical neck pain (disc, joint), soft tissue pain (A.K.A.
musculotendinous or myofascial pain) or both.
c. As explained by Dr. Brenda Lau in her Medical Legal
Report of July 28, 2015, Ms. Manoharan’s chronic neck pain experience at over
five years following the potential inciting event is unlikely to reflect a
purely physical injury to the soft tissue or mechanical structures of the
cervical spine. Rather, Ms. Manoharan’s central nervous system has most likely
developed maladaptive changes as to how it processes pain for this individual.
i. In addition to the discussion of mechanical neck pain or
soft tissue mediated pain, one needs to consider the presence of a chronic pain
syndrome that is no longer specific to the peripheral structures under
discussion.
[22]
Dr. Brenda Lau has been a practising anaesthesiologist in British
Columbia since 2004 and specializes in pain management. Her diagnosis of the
plaintiff’s condition after the accident is as follows:
a. The
non-specific left neck pain, upper back pain, and symptoms related to left
functional thoracic outlet syndrome and myofascial contractures have had
improvements from the combined Botox and Magnesium injection therapy. However,
at most this is lasting about two months.
b. Pressure
hyperalgesia and allodynia improved, but still affecting the left face, neck,
left arm, and to a lesser extent the right arm as well.
c. Persistent
myofascial pain partly due to a combination of:
i.
Spinal anatomy changes and referred pain.
ii.
Poor work ergonomics.
iii.
Disturbed sleep.
iv.
Immune factors including glial cell dysfunction.
v.
Central sensitization.
d. Significant
bowel side effects of constipation due to the Buprenorphine patch.
e. Previously
disturbed mood has improved.
f. Persistent
sleep problems.
g. Previously noted frontal headaches
are resolved.
[23]
Dr. Lau’s prognosis reads:
a. Traditionally literature has supported that
myofascial pain lasting longer than 12 months leads to poor prognosis in
recovery. While Ms. Manoharan has experienced symptoms from her injuries for
over five years, it is also my experience over the last 10 years of / dedicated
pain practice that people have made both functional recovery and improvement in
pain symptoms. Aside from trialing a series of ketamine infusion or lidocaine
infusion to reduce central sensitization in addition to the combined effects with
thoracic ring release, Ms. Manoharan has reached medical plateau with the
numerous previous treatments.
b. Regarding the functional thoracic outlet
therapies done so far, she has had reasonable timely access to both
conservative therapy and Botox therapy. The benefits realized are temporary for
up two months only. Ruling out a predisposition for developing FTOS due to
congenital abnormalities is still required. Following up with the brachial
plexus MRI would help guide an assessment to consider if surgery would support
longer, more sustained pain relief benefits.
c. Prognosis for
psychological health is good but she is demonstrating risk factors for further
mood deterioration
[24]
The plaintiff has undergone numerous treatments from pain specialists in
an effort to improve her continuing experience of pain. In March 2011 she had a
C6 nerve root block on the right side. In February 2012 she had right side C5
to C7 facet joint blocks. In February 2012 she also had a further right side C5
nerve root block and a further block in the following month. In April 2012 the
plaintiff had steroid injections into the right acromioclavicular joint. In
October 2013, August 2014 and September and December 2014 the plaintiff had
trigger point injections. She has had magnesium injections to achieve
myofascial release to various muscle groups. In April 2015 the plaintiff had
myofascial injections with dexamethasone lidocaine.
[25]
In addition the plaintiff has had in excess of 40 physiotherapy
treatments and multiple massage and chiropractic sessions.
[26]
There is no evidence to suggest the plaintiff would have experienced the
extensive physical and psychological pain her medical advisors describe if the
motor vehicle accident had not occurred.
[27]
The defendant provided three medical legal opinions on the plaintiff’s
condition following the accident. The first is that of Dr. Simon Horlick,
an orthopedic surgeon, who assessed the plaintiffs condition in November 2013.
Dr. Horlick opines that the plaintiff has been experiencing chronic myofascial
pain. He considered her to be partially disabled.
[28]
Dr. Christopher Robertson is a psychiatrist who assessed the plaintiff
in April 2015. His lengthy and careful review of the plaintiff’s history and
present complaints did not lead to conclusions markedly different from the
plaintiff’s own physicians. He accepts the plaintiff suffers from a major
depressive disorder with somatic symptoms and agrees her prognosis is dependent
on improvement in her physical pain.
[29]
Dr. William Craig is a physiatrist who provided his opinions in a letter
of August 7, 2015 following an assessment of the plaintiff on July 30, 2015.
Dr. Craig agrees with the diagnosis of chronic myofascial pain. He opines
that the plaintiffs reported disability is greater than I would expect, based
on examination today. He detected pain behaviours inconsistent with tested
and observed range of motion.
[30]
Dr. Craig’s opinion is that the accident caused a moderate soft tissue
injury to the plaintiff’s neck and shoulder girdle but it is less likely to
have caused cervical radiculopathy or facet issues. He reverses the analysis of
the prognosis from that of other physicians who have seen the plaintiff. Dr. Craig’s
opinion is that as the plaintiff’s mood improves her pain and function will
improve. He opines that the plaintiff can improve her working hours to full
time but no more. He suggests her prognosis is poor for resolution of her neck
and shoulder and arm symptoms.
[31]
There is modest disparity of opinions among the medical professionals
who have examined and assessed the plaintiff’s condition. The defence experts suffer
the disadvantage that they have seen little of the plaintiff whereas the
plaintiffs experts are also treating physicians. I accept the plaintiff’s
experts as generally more reliable for those reasons.
[32]
The defendant is critical of the plaintiff’s family physician Dr. Singh who
the defendant submits was evasive when he testified and tended to wander off on
his hobby horse which is the inadequacies of a public health care system. I
agree with those criticisms of Dr. Singh but I accept the basic proposition of
Dr. Singh that the plaintiff suffers from a significant and partially disabling
group of injuries. Dr. Singh, no matter his idiosyncrasies, provides
opinions which are not far distant from those of the other physicians.
[33]
In cross examination Dr. Helper agreed that with advancing age and with
the anxiety of the present litigation at an end the plaintiff’s psychiatric
symptoms will probably diminish.
[34]
The defendant describes Dr. Lau as the most important witness. I
agree Dr. Lau was an important witness and that her evidence about the
plaintiff was very thorough and based on a wide experience dealing with chronic
pain. The defendant points out that Dr. Lau referred to continued improvement
in the plaintiff’s condition and recommended that the plaintiff become more
active in exercise without which her recovery may be delayed. I agree Dr. Lau
opined that there are signs of improvement but she is also very guarded in her
prognosis. The tenor of Dr. Lau’s opinion is that the plaintiff is not
likely to recover from the accident related injuries.
III.
Assessment of Damages
A.
Non-Pecuniary Damages
[35]
In Karim v. Li, 2015 BCSC 498, Abrioux J. wrote in paras. 120
to 122:
[120]
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life, and loss of amenities. 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 as each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.
[121]
The framework for the assessment of non-pecuniary damages was outlined
by the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34:
[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 BCCA 54.
[122] The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiffs personal experiences in dealing with his or her injuries and their
consequences and ability to articulate that: Dilello v. Montgomery, 2005
BCCA 56 at para. 25.
[36]
The plaintiff’s loss of her pre-accident function and activities as well
as her pain and suffering has been substantial. Much of her previous activities
are no longer available to her. Her relationship with her husband has been
seriously disrupted. Her capacity to work, which was the source of much of her
enjoyment, as well as income, has been markedly diminished. Her social
arrangements have been impaired. And the effects of the accident injuries have
included a loss of ability to concentrate and to engage in intellectual
pursuits. In short the quality of the plaintiff’s life has been much diminished
by the accident injuries and her prognosis while not entirely bleak is
nevertheless not favourable. Notwithstanding Dr. Craig’s report of a
discrepancy between the plaintiffs pain behaviours and her objective testing,
I accept that the plaintiff’s complaints are genuine.
[37]
At the request of the plaintiff I have considered the following
authorities:
·
Pololos v. Cinnamon-Lopez, 2016 BCSC 81;
·
Gulati v. Chan, 2015 BCSC 431;
·
Han v. Chahal, 2013 BCSC 1575;
·
Felix v. Hearne, 2011 BCSC 1236;
·
Marois v. Pelech, 2009 BCCA 286;
[38]
The authorities relied on by the defendant on the assessment of non-pecuniary
general damages in my opinion rest on injuries considerably less serious than
those experienced by the plaintiff. The defendant submits $75,000 is
appropriate.
[39]
I assess non-pecuniary general damages in the sum of $170,000.
B.
Past Loss of Earning Capacity
[40]
The plaintiff has been an ambitious and diligent woman throughout her
life. In Canada she has been the sole breadwinner for her family throughout
much of the time she has lived in this country. She has grasped opportunities
to better her financial position but the accident injuries have considerably
reduced her ability to earn an income in the years prior to the trial. It is
likely that but for the accident she would have achieved certification as a CGA
perhaps within three or four years after 2010.
[41]
The plaintiff’s annual income for the years prior to the trial was the
following:
2007 | $38,284 |
2008 | $28,081 |
2009 | $35,569 |
2010 | $40,515 |
2011 | $47,800 |
2012 | $49,801 |
2013 | $13,957 |
2014 | $6,419 |
2015 | $22,392 |
[42]
Mr. Bolognese testified to the plaintiffs diligence and capacity for
accounting work. He has a high opinion of her abilities and it is apparent he
would have welcomed her into his firm as a partner eventually if she had been
able to continue managing the protracted hours demanded of her particularly at
tax time. The plaintiffs ability to continue with the demands of the
accounting work trailed off throughout 2012, and in the first half of 2013 she
left Mr. Bologneses firm. I have no doubt this was a great disappointment to
her. She returned to the workforce in October 2014 in a part-time position as
office manager of North Water Holdings Ltd.
[43]
In Rowe v. Bobell Express Ltd., 2005 BCCA 141 the Court referred
to the reasons of Chief Justice McLachlin in M.B. v.
British Columbia 2003 SCC 53 at paras. 27 through 29 as follows:
[27] The Chief
Justice said,
47 There
is considerable case law establishing that an award for loss of earning
capacity is intended to compensate for the loss of an asset, the
capacity to earn. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229, at p. 251, Dickson J. (as he then was), following Jennings v.
Cronsberry, [1966] S.C.R. 532, stated that:
It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has been lost: what
was its value?
Subsequent
decisions have followed this approach: see Earnshaw v. Despins (1990),
45 B.C.L.R. (2d) 380 (C.A.), at p. 399; Palmer v. Goodall (1991), 53
B.C.L.R. (2d) 44 (C.A.), at p. 59; Pallos v. Insurance Corp. of British
Columbia, (1995), 100 B.C.L.R. (2d) 260 (C.A.), at para. 27. As Finch J.A.
noted in Pallos, these cases "all treat a person’s capacity to earn
income as a capital asset, whose value may be lost or impaired by injury".
[Emphasis
in original]
[28] On the
question of the appropriate valuation of the lost asset, the Chief Justice
turned to academic commentary:
49 As
Cooper-Stephenson notes, supra, [Kenneth D. Cooper-Stephenson, Personal
Injury Damages in Canada, 2nd ed. (Scarborough,
Ont.: Carswell, 1996)] at p. 138, damages under this
head are universally quantified on the basis of what the plaintiff would
have earned, had the injury not occurred.
As far as concerns
lost income, the courts fluctuate between the notion of "loss of
earnings" and "loss of earning capacity", not for the most part
intending any aspect of the substance of an assessment to depend on the
particular wording, since damages are universally quantified on the basis of
what the plaintiff would have, not what he or she could have,
earned absent the injury.
[Emphasis in original]
[29] She
concluded,
50 These
damages are not, then, based on a fixed value that has been assigned to an
abstract capacity to earn. Rather, the value of a particular plaintiff’s
capacity to earn is equivalent to the value of the earnings that she or he
would have received over time, had the tort not been committed. It follows
that the loss of this value – the loss that the plaintiff has sustained,
and that the damage award is intended to compensate for – should be treated as
a loss sustained over time, rather than as a loss incurred entirely at the time
that the tort was committed.
[Emphasis
in Rowe]
[44]
If the accident had not happened the plaintiff would have worked 40 hours
each week at her regular wage and as well as would have worked over time which
I conclude would have averaged about eight hours each month but with a further
increase during the lead up to the end of April each year. Her hourly wage was
$23 at the time of the accident and would have increased in increments to about
$26 at the beginning of 2013. By the end of 2014 I accept she probably would
have become a certified general accountant and her income would have increased
further.
[45]
Darren Benning gave expert evidence of the plaintiff’s net after-tax
past loss of earning capacity which he calculated to be $104,295. In my view, a
precise calculation of the loss of the plaintiff’s pre-trial earning capacity
cannot be made. It depends on a number of factors including the amount of
overtime available to the plaintiff and how long it would have taken her to
become a CGA. I assess the plaintiff’s net after-tax loss of earning capacity
to the date of trial at the sum of $105,000.
C.
Loss of Future Earning Capacity
[46]
As discussed earlier in these reasons the plaintiff’s prognosis for
recovery is guarded. Her medical condition has plateaued. Natalie Allende, an
occupational therapist who performed a functional capacity evaluation of the
plaintiff, expressed the opinion that the plaintiff is employable as an
accountant or office manager only part time. It is my view that this diminished
employability is likely to continue indefinitely through to the plaintiff’s
ultimate retirement.
[47]
Abrioux J. in Karim, supra, wrote the following at paras. 146
to 149:
[146] The applicable principles for
assessing loss of future earning capacity are as follows:
·
the standard of proof is simple probability and events are
weighted according to their relative likelihood: Athey at 470;
·
a plaintiff is entitled to real and substantial possibilities of
loss as quantified by estimating the chance of the loss occurring: Athey at
470; Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.);
·
the valuation of the loss of earning capacity may compare what
the plaintiff probably would have earned but for the accident against what he
or she will probably earn in his or her injured condition: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 at 93 (S.C.), affd (1987), 49 B.C.L.R. (2d) 99
(C.A.);
·
the overall fairness and reasonableness of the award must be
considered: Rosvold at para. 11;
·
the role of the court is to assess losses based on the evidence,
not to calculate them mathematically: Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260; Pett v. Pett, 2009 BCCA 232; and
·
allowances must be made for the contingency that the assumptions
upon which the award is based may prove to be wrong: Milina at 79.
[147] While proof of a substantial
possibility is not a heavy onus, it is an onus that must be met for an award of
damages under this heading to be justified: Kim v. Morier (sub nom Kim v.
Tigounov), 2014 BCCA 63 at para. 7. This translates into a realistic
possibility of economic consequences: Kim at para. 8.
[148] There are two possible
approaches to assessing loss of future earning capacity: (i) the earning
approach (Pallos), or (ii) the capital asset approach (Brown).
Both approaches are correct and their appropriateness in the circumstances
depends on whether the loss can be quantified in a measurable way: Perren v.
Lalari, 2010 BCCA 140.
[149] The
earnings approach involves a form of math-oriented methodology such as (i)
postulating a minimum annual income loss for the plaintiffs remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value, or (ii) awarding the plaintiffs entire annual
income for a year or two: Pallos at 271; Gilbert at para. 233.
[48]
I conclude there is a real and substantial possibility the plaintiff
will suffer a loss of income earning capacity in the future caused by her
accident related injuries. Determining the amount of that lost in the future
cannot be a matter calculation. It requires the application of judgment. The
plaintiff is entitled to be put back into the position she would have been in
but for the accident.
[49]
The plaintiff is now 53 years old. If the accident had not happened, I accept
that the plaintiff, who has an intense work ethic, as well as the need to
continue to earn income to support her family, would have worked for another 15
years. She is the sole support for her family. She has not built up savings to
provide a pension on retirement. Her employment has been one of her chief
pleasures in life. But for the accident she would have qualified as a CGA
before the trial. All these factors satisfy me that she would have sustained
her employment somewhat past the usual retirement age of 65.
[50]
Mr. Benning calculated the present value of the plaintiff’s earnings in
the future if there had been no accident at about $710,000. He did so by
applying various negative labour market contingencies that may have reduced the
likelihood of the plaintiff remaining in the workforce full time as she moves
towards retirement. The plaintiff submits Mr. Benning overstates the effect of
the usual labour market negative contingencies on a person like the plaintiff
who has demonstrated ambition to better herself greater than the average. I
agree with that submission and applying the best judgment I can I assess the
present value of the plaintiff’s earnings in the future if there had been no
accident at $780,000.
[51]
The plaintiff submits Mr. Benning’s calculations are predicated on the
plaintiff having only median earnings in the future if the accident did not
happen and the plaintiff has demonstrated that her earnings will exceed the
median. I do not agree with that submission. It may be that the plaintiff’s
earnings would have exceeded the median if there had been no accident but
despite the plaintiff’s ambition and diligence she came to the profession of
accounting and to certification relatively late in her working career. I am not
prepared to conclude she would have moved beyond the median income of those who
have been engaged in the accounting profession for much longer than the
plaintiff and who will have established professional connections and attracted
clients much sooner than the plaintiff would have been able to do in her
career.
[52]
The plaintiff also submits that further post-accident income should be
added to account for the possibility that the plaintiff would have worked into
her early 70s. I agree that the that the plaintiff’s character and personality
indicate there is a real and substantial possibility that she would have
continued working much later in life than is customary in our society. I assess
a further $20,000 to account for this factor. Therefore, I assess the present
value of the plaintiff’s future earning capacity if there had been no accident
at $800,000.
[53]
To determine the damages to which the plaintiff will be entitled for
loss of future earning capacity it is necessary to determine what she actually
will earn in the future and subtract that sum from the $800,000 described above.
In my view, she is likely to work only part time and it is my opinion that she
has lost about one half of her ability to earn income. In reaching this
conclusion I have considered that the plaintiff will probably become a CGA in
her late 50s. That will be considerably later in her working life than most
professional accountants achieve and she will have relatively few years to take
advantage of that designation. Notwithstanding that she will probably
eventually become a CGA I remain of the view that she has lost about one half
of her pre-accident capacity to earn an income between the date of the trial
and her eventual retirement from the workforce. The result is that I assess the
plaintiff’s damages for loss of future earning capacity at the sum of $400,000.
[54]
The plaintiff submits that I should increase that assessment because of
the risk that her disabilities will force early retirement. I do not accept
that is appropriate. The plaintiff’s condition has plateaued. Her anxieties
about this litigation will be greatly diminished, if not entirely evaporated,
by the time this trial is over. Working part time should be manageable in the
future. The plaintiff’s character suggests to me that she will struggle
successfully to carry on working until well into her 60s and perhaps beyond.
D.
Cost of Future Care
[55]
In Dzumhur v. Davoody, 2015 BCSC 2316 at para. 244, Mr.
Justice Kent wrote:
[244] The principles applicable to
the assessment of claims and awards for the cost of future care might be
summarized as follows:
·
the purpose of any award is to provide physical arrangement for
assistance, equipment and facilities directly related to the injuries;
·
the focus is on the injuries of the innocent party… Fairness to
the other party is achieved by ensuring that the items claimed are legitimate
and justifiable;
·
the test for determining the appropriate award is an objective
one based on medical evidence;
·
there must be: (1) a medical justification for the items
claimed; and (2) the claim must be reasonable;
·
the concept of "medical justification" is not the same
or as narrow as "medically necessary";
·
admissible evidence from medical professionals (doctors, nurses,
occupational therapists, et cetera) can be taken into account to
determine future care needs;
·
however, specific items of future care need not be expressly
approved by medical experts…… It is sufficient that the whole of the
evidence supports the award for specific items;
·
still, particularly in non-catastrophic cases, a little common
sense should inform the analysis despite however much particular items might be
recommended by experts in the field; and
·
no award is appropriate for expenses that the plaintiff would
have incurred in any event.
[56]
I have the evidence of the plaintiff’s physicians with their
recommendations for her future care and the evidence of Natalie Allende. I
assess the cost of future care as follows based on that evidence:
a) the present
value of physiotherapy costs and the need for physiotherapy is supported by the
medical evidence and costed by Ms. Allende. I award $12,000;
b) Ms. Allende
supports an ergonomic assessment for work purposes. I assess it at $919;
c) Dr. Patel
recommends psychological counselling as does Dr. Gandhi. I am persuaded it
is appropriate. Ms. Allende testified that for one year such counselling
will cost $2,115, but the doctors recommend a more extended period of time. I award
$4,000;
d) Dr. Lau
recommends the advice of the naturopath particularly in regard to nutrition. I award
$263;
e) Ms. Allende
recommends a memory foam pillow at the cost of $376 which I accept is justified;
f) the
plaintiff needs a better quality mattress than is usual. This is recommended by
Ms. Allende and she gives the differential cost as $1,912 over the coming
years. I award that amount;
g) Ms. Allende
recommends a document holder at a cost of $98, which I accept is justified;
h) an articulating
keyboard tray costs $280 and is recommended by Ms. Allende. I award that
sum;
i) the
plaintiff needs a shopping buggy as recommended by Ms. Allende at $122 and
I award that amount;
j) there
was some discussion of a zero gravity chair at the trial and it was somewhat
tepidly recommended by several experts. I am not persuaded it is appropriate;
k) Prescription
medications
The plaintiff will probably
require extensive medication for the rest of her life. The evidence supports
the following medications and their costs although my awards of damages for
each medication is somewhat arbitrary:
i).
Cymbalta costs $1,756 annually for the plaintiff. There is divided
opinion on the evidence concerning the long-term use of Cymbalta for the
plaintiff but I am satisfied that throughout her working life she will benefit
from it and I award $35,000;
ii).
Lyrica is used for the management of the plaintiff’s pain. It will cost
$3,767 annually. The preponderance of evidence is that it is appropriate for
the management of the plaintiff’s pain. I award $70,000;
iii).
Arthrotec is an anti-inflammatory which costs $825 annual and from which
the plaintiff hopes to wean herself slowly. I award $5,000;
iv).
Dr. Lau recommends a trial of Mabilone or of medical marijuana. The
evidence on the appropriateness of cannabinoids for the plaintiff along with
the other medications that she expects to take in the future is lacking. I
decline to award a sum of money to permit the plaintiff to experiment with
cannabinoids;
v).
a course of vitamins to improve the plaintiff’s current condition is
recommended by Dr. Lau who estimates their cost of $500. I award that sum;
vi).
the plaintiff has been using sleeping medication since the time of the
accident and continues to do so. I have no reason to believe she will not need
to continue such medication into the foreseeable future. Zopiclone has cost her
$360 annually. I conclude that the present value of a lifetime supply is $8,600;
vii).
the plaintiff seeks $25,000 for the cost of Botox injections from time
to time for the rest of her life. I have no evidence this is justified for the
plaintiff’s lifetime but I do have evidence it is useful for the relief of pain
for thoracic outlet syndrome and that it will cost $1,600 annually. I award
$16,000 for Botox injections;
viii).
the plaintiff has had anaesthetic infusion therapy. Lidocaine is
recommended by Dr. Lau and the plaintiff has paid for this treatment out of her
own pocket. Each treatment costs $450. On the evidence about the utility for
the plaintiff of continuing with the lidocaine for the immediate future I
assess $4,500 for this cost. Dr. Lau also recommends Ketamine infusions particularly
if the plaintiff becomes unresponsive to lidocaine. For an initial trial the
cost given by Dr. Lau for ketamine effusions ranges between $10,000 and $26,000.
If ketamine infusions are used throughout the life of the plaintiff the cost is
estimated to be well in excess of $1 million. The plaintiff submits a person of
ample means would use ketamine infusions as a means of suppressing pain and
the plaintiff relies on the Janiak v. Ippolito, [1985] 1 S.C.R. 146. I
am not persuaded that a person even with ample means would spend more than $1
million on a single medication but I am satisfied such a person would spend a
considerable sum on such injections, and I award $75,000.
E.
Past and Future Loss of Housekeeping Capacity
[57]
The evidence is that the plaintiff lost much of her capacity to perform
her housekeeping duties, but also that she has recovered to the extent that she
now performs about 50% of the indoor housekeeping that she did prior to the
accident. There is no evidence that the plaintiff has hired anyone to assist her
with housework but that is not a reason for refusing compensation (See: O’Connell
v. Yung, 2012 BCCA 57). The assessment of damages for loss of housekeeping
capacity is to be approached with caution (See: Westbroek v. Brizuela, 2014
BCCA 48). As the plaintiff ages her need for a hired housekeeper will probably
become increasingly evident. Mr. Benning quantified the cost of two hours each
week and an additional 12 hours annually at $57,500 to age 80. Keeping in mind
that the plaintiff has recovered some capacity to perform housekeeping I award
$25,000 for future losses in that regard and $2,500 for the past.
F.
Special Damages
[58]
Special damages of $34,642 are agreed between the parties. There are
other special damages which are not agreed.
[59]
The defendant is willing to accept there is a further $5,781.83 of
special damages if it is found that they are reasonable and the Court is
satisfied that there is a subrogated interest by the Chamber of Commerce
[group insurance plan] over certain prescription medications during the period
from November 28, 2010 to August 25, 2013.
[60]
The plaintiff asserts the $5,781.83 of special damages were incurred
reasonably and the defendant does not lead evidence to the contrary. I have
been provided by the plaintiff with evidence of the subrogated Chamber of
Commerce claim. I find the plaintiff is entitled to an award of a further $5,781.83
in special damages.
[61]
Other special damages are disputed, namely:
a) omeprazole, pantoprozole
and zantac are antacids which the plaintiff takes for stomach upset. There is
no evidence she was taking such medication prior to the accident. $766.15 is
claimed. I award that sum;
b) a thumb
stabilizer and form fit thumb wrap was recommended by Dr. Singh. I accept its
cost of $100.78 is justified;
c) a Chuck Jung
progress report" sent to counsel and costing $462.50 does not appear to be
an item of special damages but may be an assessable disbursement. I decline to
award it;
d) a housekeeping
invoice for $903 from March 2014, described as heavy-duty cleaning of the
plaintiff’s home, is justified;
e) pea pure
Capsules and magnesium citrate are recommended by Dr. Lau. Their cost of
$778.83 is necessary and reasonable;
f) the
plaintiff has incurred taxi expenses of $2,835.66 which she says were incurred
to attend medical appointments or when she would have driven but could not
because of difficulties with limited neck rotation and pain. I accept these
taxi expenses are justified;
g) fringe
benefits for the cost of eyeglasses and dental work were lost to the plaintiff
when she left Mr. Bologneses employ. Their cost of $1,289.21 is reasonable. In
Kwok v. B.C. Ferry Corp., 1987 CanLII (S.C.) at paras. 91-92 the
Court discussed the rationale for such an award.
[62]
The total of special damages that I award is $47,097.
IV.
Failure to Mitigate
[63]
The defendant submits the plaintiff has failed to mitigate her losses.
This argument is predicated on the proposition that the plaintiff has not taken
appropriate exercise to improve both her physical capacities and her mood. The
defendant submits the damage award should be reduced by 20%.
[64]
The law requires a plaintiff who has suffered loss caused by a
tortfeasor to take reasonable steps to mitigate the loss. Ms. Manoharan has
endured almost 6 years of partially disabling pain and severe depression. She
has undergone multiple medical treatments, some of which would have been
unpleasant. Much of her time and energy has been absorbed by medical attention
in an effort to overcome her disability. Notwithstanding her many limitations
she has continued with her employment as well as managing many of her household
tasks.
[65]
I am not willing to criticize the plaintiff because she is not engaged
in an active exercise program. Her conduct over the years since the accident
has been consistent with numerous efforts to recover her previous good health.
If she had pushed herself to exercise she might have made gains in some areas
of her life but in doing so she may have exhausted the energy to carry on with
her employment and managing at home. There is no basis for me to conclude she
could have reduced your overall losses by taking more exercise. In my opinion
she has conducted herself reasonably.
V.
Summary of Damage Award
[66]
The following is a summary of damage award:
Non-pecuniary general damages | $170,000 |
Past loss of earning | $105,000 |
Loss of future earning | $400,000 |
Present value of future | $234,570 |
Housekeeping costs | $27,500 |
Special damages | $47,097.00 |
TOTAL: | $984,167.00 |
[67]
Unless there are matters of which I am unaware the plaintiff is entitled
to party and party costs on Scale B. If the parties wish to speak to costs, a
date should be arranged with the registry.
Affleck J.