IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100331

Docket: M108002

Registry:
New Westminster

Between:

Anne Patricia Lamont

Plaintiff

And

Maurice Ronald Stead

Defendant

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A.  Overview

[1]          
On December 9, 2006, a car operated by the defendant struck the left
rear corner of a car operated by the plaintiff. At the time of the collision,
the plaintiff was stopped at a red light for eastbound traffic on Kingsway, at
14th Avenue, in Burnaby, BC. The defendant approached from behind and, in
an attempt to pass on the left, caught the left rear of the plaintiff’s vehicle
with the right front of his vehicle. The impact was unexpected. It caused
moderate damage to both cars.

[2]          
The plaintiff sustained soft-tissue injuries in the collision. She
continues to suffer from neck pain, which she attributes to the collision. She
seeks $135,000 in damages. Liability is admitted. The issues in dispute relate
to: (1) the quantum of non-pecuniary losses; and (2) proof of lost
future income-earning capacity. The parties have agreed upon the awards for
past wage losses ($10,735) and for special losses ($1,073).

[3]          
The essence of the defendant’s position is that the injuries the
plaintiff sustained in the collision were substantially resolved within nine
months; that any pain thereafter is attributed to pre-existing and chronic neck
and shoulder pain linked to degenerative disc disease. In relation to
non-pecuniary loss, the defendant submits that an appropriate award would be
closer to half of that sought (i.e. $37,500) and that the plaintiff’s
claim for lost income-earning capacity ought to be dismissed for failure to
prove a substantial possibility of any future loss.

B.  Evidentiary Synopsis

[4]          
The plaintiff is 50 years of age. She is a physiotherapist, wife, and
mother of three teenagers. She works full-time at Royal Columbian Hospital and
has the primary responsibility for child-rearing, cooking, and housekeeping at
home. She says that she assumed most of the parenting and household
responsibilities because her husband is self-employed and has very long
work-days.

[5]          
The plaintiff asserts that since the collision she has been unable to
return to her pre-collision status in relation to performing her workplace and
household responsibilities. She also says that she has been unable to resume most
of her leisure activities.

[6]          
The plaintiff says that prior to the collision she was pain-free,
although she acknowledges that she has a history of neck, shoulder and arm
problems, all of which she says were successfully managed with physiotherapy. She
draws a distinction between the neck pain she attributes to the accident, and
her past complaints.

[7]          
At the time of impact from the collision, the plaintiff says that she
was looking in the rear-view mirror with her head turned slightly to the right.
She was shaken by the collision and began experiencing severe neck pain and
muscle spasms that same evening.

[8]          
Three days after the collision, the plaintiff attended to her family
physician, Dr. Beck, and complained of neck pain and muscle spasms across
her trapezius muscles and thoracic spine. She was referred to a physiotherapist
and took treatments until July 2007. By August 2007, the plaintiff says that
she felt that she had “plateaued” and was “just managing” her pain. In this
same period she gradually returned to full-time work; however, she says that
she has never been able to resume the heavier and more strenuous aspects of her
job, such as aggressive chest therapy. In January 2007, the plaintiff made an
attempt to return to work on a graduated basis; however, in her words “it
didn’t go well” and, thus, it was postponed until the end of March 2007. The
plaintiff’s employer has a duty to accommodate and it has done so for the
plaintiff.

[9]          
The plaintiff says that she presently has symptoms of mechanical neck
pain most of the time, and that the pain is exacerbated if she exerts herself. She
says that she manages the pain by using Ibuprofen, a heating pad, an ice pack,
stretching, strengthening, resting and walking. The plaintiff says that working
full-time leaves her with no physical tolerance for household duties and
leisure activities. She reports that she now must drive to work because she
cannot carry her backpack for the walks or bus-rides she used to take.

[10]       
In regard to household duties, the plaintiff says that she needs
assistance with heavy items in the kitchen; that she needs help carrying
laundry and shifting heavy wet loads; that she has difficulty hanging clothes
on a line to dry; that her tolerance for vacuuming is limited to 15 minutes and
that she cannot move furnishings in the process; that she needs help with
moving groceries; and, that she can no longer assist in the garden beyond light
weeding.

[11]       
In relation to parental duties, she says that she is now restricted to
driving for no more than 45 minutes at one time, and that this affects her
ability to drive her children to distant soccer matches.

[12]       
As for pre-collision leisure pursuits, the plaintiff says that she was
very active in sports such as downhill skiing, hiking, running, kayaking,
swimming and boating. She says that these activities, which she usually shared
with her family, are ones in which she can no longer participate. For example,
she reports that she has not skied because any pulling/pushing motion
exacerbates her pain symptoms. Similarly, she says that she can kayak for only
15 minutes (versus 2 hours, pre-accident), that she can no longer hike with a
backpack, and that when she swims she can no longer do the breaststroke or the
front crawl. The plaintiff and her husband own a 36‑foot motorboat which
is used for family vacations. She reports that she now faces significant
limitations in relation to participating in this pastime.

[13]       
The plaintiff says that she is frustrated and angered by the
post-collision changes in her life. She reports feeling guilty that her husband
and children must take on responsibilities which were once hers. In relation to
work, she says that she can no longer imagine working until age 65, given how
she feels at the end of each work day. She says she manages at work by seeing
fewer patients, seeking assistance from colleagues, trading patients, and
declining to work in the ICU, the orthopaedic unit, and the cardiac-care unit.

[14]       
In relation to pre-collision health and prior injuries, there were three
specific events of note:

(1)       In
1984, the plaintiff tore her rotator cuff from over-training for the swimming portion
of a mini-triathlon. She said that within six months the injury had fully resolved
and she returned to mile-long swims.

(2)       In
October 2004, the plaintiff awakened one morning to sudden pain in her left
shoulder and arm, and the inability to move her left arm. There was no apparent
precipitating event. The cause was thought to be nerve root impingement caused
by osteophytes encroaching the exit foramina. The plaintiff was diagnosed with
degenerative disc disease (“DDD”) a condition which is common among her age-group.
She undertook physiotherapy (including postural correction and taping) and she
estimates that the problem was resolved within three-to-four weeks. The
plaintiff believes she missed about one week of work.

(3)       In May
2006, the plaintiff suffered a recurrence of her symptoms from October 2004. She
described it as “a small flare-up” or “slight exacerbation” for which she attended
to her physiotherapist for “gentle mobilization”. She thinks she may have
missed one day of work because of this flare-up. The plaintiff asserts that
pain resolved quickly and that she kayaked without difficulty in the summer of
2006.

[15]       
In addition to the foregoing three events, the plaintiff was cross-examined
about an October 20, 2004, notation by her physiotherapist, Mary Sheu, which
suggested that the plaintiff had reported to Ms. Sheu that she had
suffered from “chronic neck symptoms”, and had an episode “one year ago”. In
response to this line of questioning, the plaintiff said that she could not
recall having much neck pain in the past, notwithstanding that the therapist’s
notes appeared to suggest otherwise. She said that she did not have any sort of
neck pain for greater than two years for which she sought help. In relation to
the notation in question, Mary Sheu testified that she makes notes as she
interviews a patient, and that the notes are in her own words, not those of the
patient. In relation to the word “chronic” she said that she ought to have used
the word “recurrent” because there was only an indication of one prior episode.

[16]       
Mary Richardson is an expert in occupational therapy and physical
capacity evaluation. On June 18, 2008, she performed a comprehensive physical
capacity evaluation on the plaintiff. In her report she wrote:

The results of physical testing,
as listed below, confirm reports of difficulty with performance of work tasks,
activities of daily living, and recreational activities.

[17]       
In relation to limitations on employment, Ms. Richardson said:

In my opinion, with consideration
only to her present physical capacity, Mrs. Lamont is employable on a
full-time or part-time basis in occupations within her physical capacity. She
has physical limitations that affect her ability to perform some work tasks and
therefore is not considered to be competitively employable. Depending on the
physical demands of any given occupation, she may require accommodation in the
form of job modification, the ability to take micro-breaks and/or change
activities and postures, use of ergonomic equipment and assistance from
co-workers. Such accommodations may require a supportive employer. Her physical
restrictions may limit the number of job titles that she is able to obtain or
maintain.

[18]       
Ms. Richardson testified that the plaintiff gave “good effort”
during the testing, and that the plaintiff’s complaints of pain and symptoms
were consistent with the test results and objective signs of pain.

[19]       
Lynn Beck has been the plaintiff’s family physician for the past 12.5
years. Dr. Beck treated the plaintiff for the soft‑tissue injuries
from the December 2006 motor vehicle collision. On the first examination
(December 12, 2006), Dr. Beck found spasm and moderate tenderness of the
bilateral nuchal muscles, tenderness at “C5 left”, global decreased range of
motion of the neck with greater pulling and pain on left lateral rotation than
on the right. She diagnosed the plaintiff as suffering from “grade 2” soft
tissue injury to the neck, shoulders, and upper back. In an x‑ray, she
noted no change from October 2004, to the plaintiff’s DDD. On December 22,
2006, Dr. Beck noted that the plaintiff continued to suffer from spasms;
that her shoulders had a constant knot in the mid-trapezius; and that the right
shoulder was worse than the left.

[20]       
Dr. Beck continued to see the plaintiff regularly through 2007, noting
gradual improvement, particularly in the plaintiff’s ability to resume work. On
October 23, 2007, she wrote a medical-legal report which she closed as follows:

In summary, Ms. Lamont suffered a mild-moderate impact
MVA on Saturday, December 9, 2006, during a rear-end collision to her vehicle. The
impact of the MVA caused a grade 2 soft tissue injury to her neck, shoulders,
and upper back. Ms. Lamont had a prior mild neck (left) chronic problem, secondary
to mild degenerative disc disease. She had been seen for this in the fall of
2004, but with physio and exercises she was able to maintain her full workload and
leisure activities with a minimum of symptoms. She had not been seen for her
neck symptoms again after the fall of 2004 until the MVA.

Ms. Lamont has been
extremely compliant and diligent in her attendance at physio and performance of
daily exercises. She is extremely motivated to return to work duties as quickly
and fully as possible and to resume full leisure activities. Ms. Lamont
was very physically fit and active prior to the MVA and this lifestyle has
contributed positively to her favourable progress and recovery. However, Ms. Lamont
is still not recovered sufficiently from her soft tissue injuries to resume the
full duties of her physically demanding position as a physiotherapist at Royal
Columbian Hospital. She still has pain and stiffness in her neck and upper back
after working with heavy patient workloads. After this length of time, the prognosis
is uncertain whether Ms. Lamont will be able to function at fully [sic] the
heavy duties she was capable of prior to the MVA.

[21]       
Dr. Beck testified that the plaintiff had, prior to December 12,
2006, never complained of right-sided pain.

[22]       
In relation to the October 2004 event, Dr. Beck said that the x‑ray
of Ms. Lamont’s spine showed a narrowing of the disc space which brings
the vertebrae together – a common occurrence as people age. She said that there
was an indication of nerve encroachment from osteophytes and that this may
cause sequelae from nerve irritation. She testified that Ms. Lamont
responded to exercise and physiotherapy and had returned to “full function” by
April 2005. In her report she wrote:

Ms. Lamont did have a prior
problem with her neck in 2004. She had woken up in the morning very stiff with
a spasm in her left neck and left shoulder. She had a prior left rotator cuff
injury in 1985, but had had no problems since with her left shoulder. C-spine
x-ray on October 27, 2004, revealed degenerative disc disease (DDD) with
left-sided spurs encroaching on C5,6 foramen. Physio helped relieve the
symptoms, and by April 2005 she had improved greatly. The diagnosis was rotator
cuff injury; DDD neck with referred pain and mild weakness left arm from C5
radicular impingement. Regular exercises and proper posture and sleep position
kept her neck symptoms to a minimum prior to the MVA of December 9, 2006.

[23]       
Rhonda Shuckett is an expert in rheumatology and internal medicine. She
examined the plaintiff on October 15, 2008. She diagnosed the plaintiff as
suffering from: (a) a neck injury from musculoligamentous and suspected
zygapohyseal joint capsular injury, with decreased motion in the neck;
(b) myofascial pain syndrome of neck and shoulder girdle regions,
bilaterally; and (c) some mild left shoulder impingement syndrome. In
relation to issue of causation she said:

[Ms. Lamont] did have evidence of degenerative disc
disease of the neck before the subject MVA on a neck x-ray done to assess her
left arm pain before the subject MVA. Most patients over 45 have some
degenerative change on x-ray. This structural change of her neck may have
rendered her neck more susceptible to injury with the subject MVA. Still, the
neck injury from the MVA is what created and led to new persistent onset of
symptoms of actual neck pain and stiffness, from what I glean. She did have
some remote episodes of toticollis of the neck which were self-limited in
nature. She had some pre-MVA cyclical migraine headaches but depicts that her
post-MVA headaches were different; these headaches have gone back down to her
pre-MVA cyclical migraines.

She does have an osteophyte at
the left C5-6 vertabral foramen. This would have been a pre-existing
degenerative change and may have rendered her neck more susceptible to injury
with the subject MVA. The left neck C5-6 osteophyte may have been rendered
symptomatic with the MVA and may even have contributed to her pre-MVA left
upper arm symptoms. However, I suspect her left neck injury since the MVA is
mainly attributable to soft tissue and perhaps zygapophyseal joint injury.

[24]       
As to the plaintiff’s prognosis for recovery, Dr. Shuckett said:

It is already approaching two
years since the subject MVA and she remains symptomatic. I think there is a
good chance that she is going to continue with her current level of pain. She
is not disabled but is impaired to some degree…

[25]       
Dr. Shuckett testified that it is not inevitable that DDD will
progress as one ages. She agreed that if the plaintiff had a history of chronic
(i.e., for greater than two years) neck pain prior to October 2004, and a
subsequent flare-up, then these factors would be “significant” although not
necessarily related to DDD. She said that she was aware of the plaintiff’s June
2006 flare-up when she wrote her report, but she was not aware of an alleged
pre-October 2004 history of chronic neck pain (as suggested by an October 2004
physiotherapy note.)

[26]       
John Wade is a rheumatologist, tendered by the defendant as an expert
witness. He examined the plaintiff on December 3, 2008. In his report he noted
the plaintiff’s pre-December 2006 MVA medical history; in particular, the
October 2004 event and the corresponding x-rays showing “degenerative changes
and mild left foraminal encroachment at the C5-C6 level”. In relation to
causation he said:

As a direct result of a motor vehicle accident of December 9,
2006, Anne Lamont sustained a probable mild to moderate musculoligamentous
injury of the cervical and upper thoracic spine. Over the period from December
2006 through to my assessment of December 2008, Anne Lamont self-estimates
improvement in the order of 80 to 845 percent…

It would be my opinion that her symptoms in the cervical and
thoracic spine were in part aggravated by the accident of December 9, 2006. It
is likely that her symptoms have been more severe and more prolonged as a
result of this accident.

It is possible that over time, Anne Lamont would have
developed similar symptoms independent of the accident of December 9, 2006, but
is likely that the symptoms of onset were sooner as a result of this injury.

It would be my opinion that Anne Lamont is competitive for
full-time work as a physiotherapist as she has demonstrated. It is likely that
she is less competitive for heavy jobs within physiotherapy that she has
identified. As mentioned above, this may ultimately have happened independent
of the accident of December 9, 2006…

In the future I would expect Anne
Lamont to continue to have intermittent symptoms of mechanical neck pain…

[27]       
During his testimony, Dr. Wade’s attention was drawn to the October
2004 physiotherapist note suggesting that the plaintiff had a history of
chronic neck pain. Dr. Wade was not aware of this alleged history and he
stated that if it were true then it would be his opinion that the plaintiff’s
long-term symptoms “may not be affected” by the motor vehicle accident in
December 2006.

C.  Findings and
Analysis

[28]       
The plaintiff testified in a forthright manner about the pain she has
suffered since the December 9, 2006 collision and the consequences it has
wrought upon her life, particularly as they relate to her leisure pursuits and
home life. By all accounts the plaintiff was a very fit, active, energetic, and
hard-working woman prior to the collision. After the collision, she pushed
through the pain, took physiotherapy, and returned to work as soon as she could
manage it. With some accommodation by her employer and modifications to her
duties, the plaintiff successfully resumed full-time employment.

[29]       
The plaintiff has not, unfortunately, achieved similar success in
resuming her pre-accident activities in her life outside the workplace. Working
full-time with chronic pain now exhausts her. I accept as true her testimony
that by the day’s end she has little energy for household chores, parental
duties, sports, and leisure. I am also satisfied that her neck pain precludes
her from engaging in most of the sports and leisure activities which she once
enjoyed either with her family or alone. It also significantly limits her
ability to carry out some household tasks and parental responsibilities.

[30]       
The evidence establishes that the plaintiff’s prospects for any
significant improvement in her neck pain are poor. As a consequence, she faces
a considerably altered future; particularly as it relates to her life outside
the workplace. Her chronic pain deprives her of much of the enjoyment she found
in being physically active, in attending to her family, and in participating in
family activities.

[31]       
The defendant attempted to call into question the plaintiff’s pre-collision
health; in particular, he sought to rely upon a clinical note of a
physiotherapist suggesting that the plaintiff reported “chronic neck pain” in
2004. The plaintiff, in her testimony, seemed genuinely perplexed by this note.
She claimed no recall of, or reason for, making such an assertion. She added
that she did not remember having any sort of neck pain that could reasonably be
characterized as chronic.

[32]       
The physiotherapist who made the note in question had no specific
recollection of what caused her to make the notation; accordingly, she
testified about it by: (a) drawing upon her usual practice, and (b) explaining
the meaning of these words, to her, at the time. In relation to the former, she
said that she makes notes, using her own words, of essential information
gleaned from a patient. In relation to the latter, she said that she used the
word “chronic” when she ought to have used “recurrent” because her notes reveal
only one prior incident of neck pain.

[33]       
I am not persuaded that much can be made of the physiotherapist’s note as
evidence that the plaintiff suffered from chronic neck pain prior to the
collision. The evidence of the note is, at best, equivocal and, in relation to
pre-existing chronic neck pain, it stands alone despite a fairly
well-documented medical history; moreover, the plaintiff was a credible witness
who denied having such a pre‑accident medical history.

[34]       
In relation to other aspects of Ms. Lamont’s pre-collision health,
I am not persuaded that the evidence establishes anything which might
reasonably account for the chronic neck pain from which she now suffers. The
medical evidence shows that the plaintiff has some degenerative disc disease
typical for women of her age. Prior to the collision, the plaintiff enjoyed a
very physically-active lifestyle and was mostly asymptomatic. Transitory
strains, aches, and pains are common among persons who engage in rigorous and
physically-demanding activities. When Ms. Lamont did suffer from symptoms
which were apparently attributed to DDD (in October 2004 and May 2006),
they were not the same as those of which she now complains; moreover, she
quickly responded to physiotherapy and experienced full recovery. The
plaintiff’s post-accident experience has been markedly different,
notwithstanding physiotherapy and every reasonable effort to recover and resume
her pre-accident lifestyle.

[35]       
In summary, I am satisfied that the plaintiff’s pain is chronic,
partially disabling, and likely permanent. Similarly, I am satisfied that the
evidence establishes that the plaintiff’s neck pain was caused by the
defendant’s negligence, in the sense that it directly caused or materially
contributed to it. There is a substantial connection between the plaintiff’s
chronic neck pain and the collision, and the plaintiff has shown, on a balance
of probabilities, that but for the negligence of the defendant, she would not
have chronic neck pain: see Resurfice Corp. v. Hanke, 2007 SCC 7, [2007]
1 S.C.R. 333.

D.  Assessment of Damages

1.  Non-pecuniary losses

[36]       
The plaintiff seeks an award of $75,000 for non-pecuniary damages. In
support of this position she cites the following cases: Schroeder v. Shaw,
2008 BCSC 1757, [2008] B.C.J. No. 2499 ($75,000); Bancroft-Wilson
v. Murphy, 2008 BCSC 1035, 170 A.C.W.S. (3d) 528
($70,000); and Kuskis v. Tin, 2008 BCSC 862, 169 A.C.W.S. (3d) 115 [Kuskis]
($65,000).

[37]       
The defendant submits that the plaintiff is entitled to “about half” of
the amount she seeks. In support of this position he cites: Gozra v.
Wunderlich, 2009 BCSC 114, [2009] B.C.J. No. 180
($35,000); Heinze v. Dulay, 2008 BCSC 969, [2008]
B.C.J. No. 1624 ($40,000); and Reichennek v. Archibald, 2008 BCSC 1304,
[2008] B.C.J. No. 1939 ($22,000).

[38]       
Non-pecuniary damage awards made in similar cases serve as a useful
guide for determining a fair and equitable award in the instant case;
ultimately, however, the award must reflect each case’s unique facts.

[39]       
From a review of the aforementioned cases, I am satisfied that the Kuskis
case bears the most similarities to the case at bar. A noteworthy
distinguishing factor is the age of the respective plaintiffs: 37 years for Ms. Kuskis
and 50 years for Ms. Lamont.

[40]       
The loss of enjoyment of life due to chronic neck pain is undoubtedly
greater for Ms. Lamont than it would be for a person who has led a more
sedentary lifestyle. Ms. Lamont has been actively engaged in strenuous
sport throughout her adult life, and this has been a significant feature of
life with her husband and children. It is, understandably, a source of great
frustration and sadness to her that she has been deprived of the capacity to
engage in most of the activities she loved, and to experience them with her
family.

[41]       
Given the relatively profound nature of the loss to this plaintiff
(including compromised household management and parenting), the chronic pain
which she must endure, the age of the plaintiff, and the very poor prospects
for significant improvement, and, having regard to the similarities between the
cases cited by the parties and the case at bar, I assess the non-pecuniary
losses of the plaintiff at $60,000.

2.  Loss of Income-Earning Capacity

[42]       
The plaintiff seeks an award of $50,000. The plaintiff acknowledges that
she has, with the cooperation of her employer and without income loss, been
able to modify her employment in order to meet her post-accident physical
limitations. The thrust of her claim is that she is no longer competitive in
the field of physiotherapy and that she has been rendered less marketable
should she lose employment with Royal Columbian Hospital. In this regard the
plaintiff relies upon the evidence of Mary Richardson, the occupational therapist
who opined that Ms. Lamont was no longer competitive in the field of
physiotherapy.

[43]       
The defendant opposes the making of any monetary award for future loss. He
submits that the plaintiff has failed to meet the “real and substantial
possibility” threshold for proof of future losses; more specifically, he says
that the plaintiff has failed to show that there is a real and substantial
possibility that she has been precluded from future employment in which there
would be a reasonable prospect of engagement. In this regard the defendant
relies upon the evidence that Ms. Lamont’s job was modified to meet her
physical limitations; that Ms. Lamont’s employment with the hospital has
been relatively long-term and is probably quite secure; that her employer has a
duty to accommodate its employees; and that there is no suggestion that Ms. Lamont
will not continue to work in her chosen field of physiotherapy until she
retires from the workforce.

[44]       
The evidence establishes that it is likely that the plaintiff will
continue full-time employment as a physiotherapist with the Royal Columbian
Hospital for the foreseeable future. Her employer has made reasonable
accommodations to meet her physical limitations caused by the defendant’s
negligence; accordingly, the plaintiff is unlikely to suffer any future income
loss while in her present employment.

[45]       
The evidence also establishes that the injuries caused by the defendant
have limited the plaintiff’s ability to perform some of the more physically
taxing aspects of physiotherapy. Despite her employer’s accommodation, it is
clear that the plaintiff’s abilities as a physiotherapist have diminished,
rendering her less valuable in a competitive employment market. In this regard I
accept the evidence of Mary Richardson that Ms. Lamont is not
considered “competitively employable” as a full-time physiotherapist; that she
may need a supportive and accommodating employer; and that she may be
restricted in terms of future employment positions.

[46]       
It well established that the purpose of an award for lost income-earning
capacity is to compensate for the loss of earning capacity as a capital asset:
see Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, 24
A.C.W.S. (3d) 959 (C.A.), leave to appeal ref’d [1991] S.C.C.A. No. 54; however, before such an award may be
made, the plaintiff must show a real and substantial possibility of future
income loss: see Parypa v. Wickware, 1999 BCCA 88, 169
D.L.R. (4th) 661.

[47]       
I am satisfied that the plaintiff has established a real and substantial
possibility of a future income loss. Her employment with the Royal Columbian
Hospital is not guaranteed for the balance of her working years. She may lose
her position or need to give it up for any number of reasons, including a
personal relocation. In either circumstance she would find herself facing a job
market in which she has been rendered less marketable as a result of the
defendant’s negligence. Even if she were to remain until retirement in her
present employment, she may have to forego new and more remunerative
opportunities and/or positions because of her physical limitations. In addition
to the foregoing possibilities, her physical limitations, accommodated by her
present employer, reasonably preclude her from taking advantage of new and
possibly more remunerative positions with other potential employers.

[48]       
Notwithstanding all the foregoing, I think there is merit in the defence
position in relation to an assessment of the likelihood of these possibilities
occurring. I am satisfied that the likelihood of occurrence must be assessed as
low. I find that it is very likely that Ms. Lamont will remain in the
employ of the Royal Columbian Hospital for the balance of her working years
and that she will continue to earn a competitive wage for physiotherapists
practicing within the medical system in British Columbia. Ms. Lamont
is thus entitled to compensation for the relatively remote possibility that she
will suffer a future loss due to her lost earning capacity.

[49]       
Quantifying such a loss is difficult. It is well-established that it is
a matter of assessment rather than mathematical calculation, and an assessment
must take into account future negative contingencies often referred to as the
“usual chances and hazards of life”.

[50]       
Taking all the foregoing into account, I assess the plaintiff’s future
loss of income-earning capacity at $25,000.

3.  Special Damages and Past Wage Loss

[51]       
The parties have agreed upon the quantum of these damages, as follows:

(a)  Special 
$ 1,073.74*

(b)  Wage loss (net)                         $10,735.52

(*minus all parking receipts
incorrectly submitted, as acknowledged by the plaintiff in her testimony)

E.  Costs

[52]       
The plaintiff claims her costs and disbursements. If the parties are
unable to reach agreement on this issue then they are invited to make written
submissions.

“The
Honourable Mr. Justice Bernard”