IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100726

Docket: M115754

Registry:
New Westminster

Between:

Jacqueline Geiger

Plaintiff

And

Wayne E. Schmidt

Defendant

– and –

Docket: M117933

Registry:
New Westminster

Between:

Jacqueline Geiger

Plaintiff

And

Marion Wiens and
James David Wiens

Defendants

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

I.                
Introduction

[1]            
Ms. Geiger, the plaintiff, suffered injuries in two accidents a
year apart. The first accident occurred on December 1, 2007, the second a year
later, on December 3, 2008. The plaintiff started two separate actions, but a
Master ordered them heard together.

[2]            
The defendant in the first accident, Mr. Schmidt, denies
liability. In the second accident, the defendants Marion Wiens and James David
Wiens, have admitted liability.

[3]            
The plaintiff, now 52, suffered soft tissue injuries from two
earlier accidents in 1979 and 2004. Those accidents are relevant because on
December 1, 2007 the plaintiff was still symptomatic from the injuries she
received.

[4]            
Similarly, when the December 3, 2008 accident occurred, the
plaintiff was still symptomatic from the residual symptoms of her December 1,
2007 accident.

[5]            
The plaintiff says the 2007 and 2008 accidents caused a
significant worsening of her pre-existing neck pain a mild worsening of her
dizziness and some additional soft injuries and symptoms, most notably a major
worsening of the migraine headaches she had begun to experience after her
September 2004 accident.

[6]            
At trial, the plaintiff was still complaining of major symptoms
of pain and disability.

[7]            
Therefore, liability for the December 1, 2007 accident has to be
decided. The assessment of damages must consider the respective contributions
of the residual effects of the two earlier accidents and of the 2007 and 2008
accidents to her current and future symptoms. Regardless of the liability of
the defendant in the 2007 accident, the defendants in the 2008 accident are to
be liable for only the damages they caused, and therefore damages must be
apportioned accordingly.

[8]            
The main damages issue in this case is what the long-term effects
of those later accidents will be.

[9]            
The plaintiff acknowledged that when the December 2007 accident
occurred, some symptoms from her 1979 and 2004 accidents were persisting.

[10]        
Following the 1979 accident, the plaintiff did not seek treatment
for symptoms she described as occasional stiffness in her neck and back and
chronic dizziness until 1998. Following the 2004 accident, she suffered an
aggravation of her neck pain and a mild worsening of her dizziness. Most
significantly though, she experienced new symptoms in the form of migraine
headaches. She also suffered new symptoms of chronic left trapezius pain, jaw
joint pain of a mild to moderate nature and right groin pain.

[11]        
Before considering damages, I will decide liability for the
December 1, 2007 accident.

II.              
Liability Decision December 1, 2007 Accident

[12]        
The December 1, 2007 accident occurred around 4:30 pm as the
parties were heading home south on Highway 99. It was dark as they exited the
south end of the Deas Island Tunnel. Weather and road conditions began to
worsen from what they had been in Vancouver. As they headed further south, snow
accumulated.

[13]        
The plaintiff’s Toyota 4 Runner 4×4 SUV was in good running
condition and equipped with snow and mud tires. Its 4×4 system could be engaged
without having to stop the vehicle, up to speeds of 80 kph, but Mr. Schmidt,
the defendant driver, had not transferred to four-wheel drive. He was familiar
with Toyota 4 Runners since he owned one and had previously driven the
plaintiff’s newer model. He was not that familiar with the details of
transferring to four-wheel drive in the plaintiff’s newer 4 Runner.

[14]        
Near the Highway 10 overpass on their side of their road, the
parties passed by a vehicle that had slid off the road. Other vehicles had
stopped to lend assistance. After the parties had passed by the scene, the
plaintiff testified that she and the defendant spoke about the slippery roads.
The defendant recalled discussing road conditions, but did not recall
references to slippery roads. I find nothing turns on this either way because
the plaintiff was aware of the road conditions and had reduced his speed by 30
kph from the posted limited of 100 kph.

[15]        
The plaintiff testified that before they were approaching the Mud
Bay overpass, she told the defendant he should slow down and put the 4 Runner
into four-wheel drive. I accept the defendant’s evidence that the plaintiff
mentioned this about 30 seconds before the accident. He replied he would
transfer to four-wheel drive after they had crested the slight rise in the road
they were on at the time. He explained he did not feel comfortable shifting it
into four-wheel drive until then.

[16]        
He maintained his reduced speed at 70 kph.

[17]        
As they approached the Mud Bay overpass he had intended to cross
over, the back end of the vehicle slid. It spun 360 degrees, collided with the
median, bounced off it, went into another spin and then struck it a second
time.

[18]        
The defendant did not know why the vehicle lost traction in the
rear wheels, but in his examination for discovery, portions of which were read
into evidence, he testified he had felt a strong gust of wind in the back he
thought might have caused the rear of the vehicle to slide. He was driving in a
straight line at the time. He had not run over any bumps in the road. He had
not used his brakes and had not accelerated.

[19]        
Up to the point the back end slid, the defendant had not noticed
any traction problems.

[20]        
The defendant testified he tried to correct for the spin by
steering in the correct direction, although at trial he couldn’t recall which
direction he turned the wheel. Nothing in the evidence supports a finding of
negligent steering before the slide or in response to it.

[21]        
After spinning 360 degrees and hitting the meridian barriers, the
Toyota ended up facing northbound in the southbound lane.

[22]        
On cross-examination, the defendant agreed with the suggestion of
plaintiff’s counsel that conditions called for extreme caution, especially
after he had noticed a car in the ditch.

[23]        
The defendant also agreed in his discovery testimony read into
evidence that based on his experience driving his own Toyota 4 Runner, he
might have been able to steer out of the spin if he had slowed down and put the
vehicle in four wheel before losing traction.

III.            
The Law

[24]        
Fontaine v. British Columbia (Official Administrator),
[1997] S.C.J. No. 100 (S.C.C.); [1998] 1 S.C.R. 424 clarified the evidentiary
principles a judge should consider in cases where vehicles slide on slippery
roads and the driver loses control.

[25]        
In Fontaine, the Supreme Court of Canada rejected the
evidentiary principle that a plaintiff could establish the defendant’s
presumptive negligence from the mere fact a vehicle slid and the driver had lost
control. The Court held the Latin maxim res ipsa loquitor, which means
‘the facts speaks for themselves’, should be treated as expired and no longer
treated as a separate part of negligence law.

[26]        
The Court explained that if the defendant provides an explanation
for the circumstantial fact of the defendant’s loss of control as consistent
with an absence of negligence as with negligence, the explanation will
neutralize an inference of negligence taken from the fact the driver’s lost
control of the vehicle. Absent any other direct evidence of the negligence on
the part of the defendant, the plaintiff’s case will fail. At para 27, the
Court said:

[27]      It would appear that
the law would be better served if the maxim was treated as expired and no
longer used as a separate component in negligence actions. After all, it was
nothing more than an attempt to deal with circumstantial evidence. That
evidence is more sensibly dealt with by the trier of fact, who should weigh the
circumstantial evidence with the direct evidence, if any, to determine whether
the plaintiff has established on a balance of probabilities a prima facie case
of negligence against the defendant. Once the plaintiff has done so, the
defendant must present evidence negating that of the plaintiff or necessarily
the plaintiff will succeed.

[27]        
Both parties referred to Nason v. Nunes, 2008 BCCA 203; 60 M.V.R.
(5th) 21, a decision of the B.C. Court of Appeal that applied Fontaine
to facts the defendant submits closely resemble those at bar.

[28]        
Counsel for the defendant stressed the comments of Newbury J.A. at para.
14 of Nason.

… Wherever the court finds on all the evidence that
negligence has not been proven, or that the defendant has shown he drove with
reasonable care, the defendant must succeed, whether or not he is able to
‘explain’ how the accident occurred. This is not to suggest that an inference
may not be drawn as a matter of fact in a particular case, where a
vehicle leaves the road or a driver loses control; but as the trial judge as
stated at para. 53 of her reasons… such an inference will be ‘highly
dependent on the facts’ of the case and the explanation required to rebut it
will ‘vary in accordance with the strength of the inference sought to be drawn
by the plaintiff.

(Emphasis
added)

[29]        
In a similar vein, I note Justice Major’s comments at para. 32 of Fontaine:

… While it is true that such
weather conditions impose a higher standard of care on drivers to take
increased precautions, human experience confirms that severe weather conditions
are more likely to produce situations where accidents occur and vehicles leave
the roadway regardless of the degree of care taken. In these circumstances, it
should not be concluded that the accident would ordinarily not have occurred in
the absence of negligence.

[30]        
Counsel for the defendant submits the facts in Nason closely
resemble those at bar. In Nason, the South Okanagan month of December
accident occurred on Highway 9, a secondary Highway.

[31]        
As the plaintiff and his two passengers travelling in the plaintiff’s
Ford 150 truck were moving onto a bridge deck, the front tires truck struck a
rough area at the leading edge of the evidently icy bridge deck, then
immediately started sliding sideways on it. Ten meters past the opposite end,
the truck slid off the road and down an embankment.

[32]        
The defendant in Nason knew the bridge and its bad reputation; a
previous time he had had previously lost control of his vehicle the deck due to
slippery conditions.

[33]        
The trial judge accepted evidence that before leaving, the defendant’s
mother had cautioned him on the risk of slippery conditions; but she found this
caution irrelevant because the defendant was already aware of the risks.
Russell J. found the defendant took all reasonable precautions to avoid losing
traction.

[34]        
In her reasons, indexed at 2007 BCSC 266, Russell J. said at para. 57:

Here, the evidence suggests the defendant
took all reasonable precautions to avoid losing traction: he was using all
season tires, he had weight over the rear wheels of the pickup, he had slowed
his speed coming down the hill, and the plaintiffs themselves had no concerns
with the way he was driving. There is no evidence that greater precautions,
such as using snow tires or driving even more slowly, would have been advisable
when the air temperature in Osoyoos was above freezing. Further, there is no
evidence that such further precautions would have prevented the MVA. Therefore,
I find that the plaintiffs have not proven that Nunes failed to meet the
required standard of care in all of the circumstances.

A.   
Applying to the facts in this case

1.    
Plaintiff’s argument

[35]        
Counsel for the plaintiff submits the defendant was negligent because he
failed to take all reasonable precautions in response to the worsening road
conditions. He submits the defendant should have listened to the plaintiff,
lowered his speed and transferred the vehicle into four-wheel drive as the
plaintiff had suggested, especially given she was more familiar with it. The
defendant’s decision to put the vehicle into four-wheel drive at the crest of
the rise in the road was a tacit acknowledgment of the slippery conditions and
the need to transfer the vehicle into four-wheel drive.

[36]        
Counsel points to circumstantial evidence that except for the one
vehicle seen on the way in the ditch, others had driven through the area
without losing control of their vehicles. However, I heard no evidence of their
speed relative to the 70 kph the defendant had been travelling. Counsel also
points to the circumstantial evidence that after the accident, other vehicles
had driven by without incident. However, there is no evidence of the speed of
those vehicles compared to the speed the defendant was driving when he lost
control of the vehicle.

[37]        
Counsel refers as well to the circumstantial evidence that after the
parties continued driving home with the driveline in four-wheel drive, the rest
of the trip home was uneventful.

2.    
Defendant’s argument

[38]        
Counsel for the defendant submits the defendant had taken all reasonable
precautions conditions required. He points to the fact the 4 Runner had mud and
snow tires; and the defendant had slowed to 70 kph, a full 30 kph under the
posted limit. He had agreed he would put the vehicle into four-wheel drive at
the top of the slight rise in the road. Counsel submits the defendant displayed
commendable caution delaying the transfer to four-wheel drive until he felt
more comfortable doing so.

[39]        
Counsel submits the defendant took reasonable steps after the vehicle
began to slide.

3.    
Discussion

[40]        
Mr. Schmidt had considerable experience driving in the snow. He was well
aware of the worsening conditions heading south from Deas Tunnel. The defendant
had driven to the accident scene with no loss of traction or sliding.

[41]        
On cross-examination, the defendant agreed with counsel’s suggestion the
circumstances required extreme caution. I received that answer with
reservations. Circumstances demanding extreme caution suit a response that
would see all vehicles travelling at very low speeds.

[42]        
Of course, I accept that the conditions called for cautious driving.

[43]        
The plaintiff acknowledges the defendant responded to the conditions
with his speed decrease. But in effect, she says that when she cautioned him to
lessen his speed further because she felt he was driving too fast for the
conditions, his duty to take all reasonable precautions obliged him to lower
his speed further. The plaintiff points to her considerable experience driving
in snow and suggests she was a good judge of a safe speed in those conditions.
However, I note the defendant also had considerable experience driving in the
snow.

[44]        
In my view, given the fact the defendant was attuned to the conditions
he was facing and had responded to them by lowering his speed by almost
one-third, the negligence question in this case comes down to deciding whether
he failed to exercise all reasonable care because he failed to comply with the
plaintiff’s suggestion by lowering his speed and transferring the driveline to
four wheel drive before he lost control. In other words, did exercising all
reasonable precautions encompass disregarding his own assessment and complying
with the plaintiff’s suggestion?

[45]        
In some circumstances, reasonable drivers assessing driving conditions would
consider the suggestions of passengers, especially when the driver is
inexperienced or less familiar with the road then the passenger. In many cases,
the passenger’s recommendation will correspond with the most objectively
reasonable precaution.

[46]        
However, the driver is ultimately responsible for assessing the
objective conditions and responding in a reasonable way. In the circumstances
of this case, I find the defendant’s failure to follow the plaintiff’s
suggestion to slow down and transfer to four-wheel drive is not sufficient to
satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]        
Further, I heard no evidence of what speed would be low enough in the
conditions the defendant was facing to prevent a loss of control and the spin
outs that followed. There was no evidence to show that, had the defendant
switched into four-wheel drive or reduced his speed, he could have avoided the
accident. A judge can take judicial notice of the natural correlation between
higher speed and decreased traction; but such common knowledge does not licence
a leap from that to a conclusion the defendant likely would have avoided the
accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]        
This is not a case of a driver ignoring passenger pleas to slow down
while driving at a speed all reasonably cautious drivers would consider unsafe
in the circumstances.

[49]        
The standard of care is not perfection. There is no evidence the defendant
was inattentive or indifferent to road conditions. His decision to delay
transferring to four wheel drive until he felt ready doing so was not
unreasonable. The vehicle was equipped with snow tires. The temperature was
around 4 degrees centigrade. The defendant was exercising reasonable caution by
driving a full 30 kph below the posted speed limit.

[50]        
As in Nason, I find insufficient evidence to show the defendant
in these circumstances was negligent: at best, the weight of the evidence hangs
evenly in the balance. I find the plaintiff has failed to satisfy the burden of
proof and so I must dismiss the plaintiff’s claim against the defendant.

[51]        
I will discuss the other injury-causing 1979, 2004 and 2008 accidents
later.

IV.           
Plaintiff’s Personal and Work History

[52]        
Before describing the 1979, 2004 and 2008 accidents, I will review
briefly the plaintiff’s personal and work history, and her recreation.

[53]        
The plaintiff was born and raised in the Kootenays. After graduating
from high school, she attended Selkirk College for two years. She then attended
UBC and in 1979 obtained a Bachelor of Education degree. Other postgraduate
education included studies in accounting.

[54]        
After graduating from UBC in 1979, the plaintiff substitute taught and
tutored until about 1985. During most of that period, she was simultaneously
working at a Credit Union, and in 1986, she also produced a catalogue for a
company.

[55]        
Nineteen eighty-six was a pivotal year for her career, when the
plaintiff started working for Sage Computer Associates [“Sage”], producers of
an accounting software program, Accpac. She remained at Sage for 20 years,
until 2006. She focused on software design, which covers improving the look,
feel and ease of use of the software program. Her job title was Manager of
Design. She had a staff of four in her department. She also prepared marketing
materials, presented, and trained the company’s clients how to use the
software.

[56]        
In late 2006, Sage terminated the plaintiff’s employment. She testified
she never received a reason, but explained she was part of a group of employees
let go by the new set of managers. When the plaintiff was let go, her
approximate income level was over $100,000 a year plus benefits. Her income
history while at Sage between 2003 and 2007 was:

§ 
2003: $87,000

§ 
2004: $154,000 with capital gains from Sage stock options that
she sold

§ 
2005: $98,334

§ 
2006: $111,915 (this was the year employment at Sage ended)

§  2007: $125,547 (this
amount came from a severance package she received from Sage when she was laid
off)

[57]        
After the plaintiff lost her job at Sage, she started her own business,
called By Design Business Solutions Inc. [“By Design”]. The plaintiff had planned
that By Design would contract with clients of Sage and other companies to
provide services such as planning for implementation of software, staff
training, and continuing technical support. From her many years at Sage, the
plaintiff had developed many contacts who she felt would be interested in her
these services. She expected earnings as high as or higher than what she had
earned at Sage. Later I will discuss the plaintiff’s efforts to develop By
Design and the income she from it, both before and after the December 2007 and
December 2008 accidents.

V.             
Recreation up to the period December 1, 2007

[58]        
The plaintiff described her involvement in recreation. Until the time of
the December 1, 2007 accident she had been involved in a wide variety of crafts
and recreation. She painted with water colours and acrylics and taught
painting. Two of her paintings were entered as exhibits at trial. The quality
of her work appeared very good. Some of her paintings took two weeks to finish.

[59]        
In 2007, the plaintiff developed an interest in photography. She took it
seriously and enrolled in some professional photography courses in Victoria.
She enjoys creating crafts of all kinds of crafts – in fact, at the time of the
2007 and 2008 accidents, she was either returning from a craft store with
supplies or on her way to a craft store to purchase some.

[60]        
As far as physical activities are concerned, the plaintiff testified she
was involved in yoga three to four times per week, Pilates training and she ran
five to ten kilometres two days a week. She enjoyed ballroom dancing. She said
that in the fall prior to the 2007 accident she was in excellent shape.

VI.           
Other Accidents

A.  1979 Accident

[61]        
The plaintiff’s first injury-causing accident was in 1979. The plaintiff
testified that someone ran a stop sign and ran into her vehicle. She said she
suffered minor injuries, as mentioned earlier, but she sought no treatment
until 1998. She said that leading up to the time of her September 2004
accident, she experienced occasional stiffness. She eventually sought
physiotherapy in 1998. She did not seek any compensation for the 1979 accident.

B.   
September 2004 Accident

[62]        
In September 2004, she rear-ended another vehicle. As also mentioned
earlier, she suffered a worsening of neck pain, dizziness, and developed
headaches, chronic left shoulder pain, jaw pain and groin pain.

[63]        
Her headaches followed a migraine pattern. She could not stand light or
sound, felt nauseated, suffered blurred vision and lacked concentration. Dr. T.
Lowen, her general practioner, referred her to Dr. D. Dahwan, a physiatrist,
who started her on a regimen of Botox and cortisone injections through the
scalp and into the back of her neck in the occipital area, as well as into her
forehead, shoulder and right buttocks. These treatments started in December
2006. She saw Dr. Dahwan about three times a month thereafter.

C.   
Persisting pain symptoms in 2007

[64]        
As a result of the December 1, 2007 accident, the plaintiff felt
increased neck pain, much worsened dizziness, much worsened headaches, left and
right shoulder pain, a flare up of jaw pain, mild intermittent back pain and
aggravation of her right groin pain.

[65]        
The plaintiff testified that by fall 2007 she had experienced
considerable improvement. Her sometimes excruciating migraine headaches had
improved enough that she was intending to ask Dr. Dahwan about weaning off
Botox. She was not taking any medications besides Botox and had increased her
level of physical activity.

D.   
December 3, 2008 Accident

1.    
The accident

[66]        
The plaintiff was on her way to Michael’s craft store and had stopped
her Toyota 4 Runner on 208 Avenue in Langley, waiting to merge onto the Langley
Bypass. She was looking at traffic to her left when her vehicle was struck
unexpectedly from the rear. She saw “stuff” flying over her and was pushed
forward hard.

[67]        
The damage to her truck concentrated in the rear bumper and trailer
hitch area resulted in modest repair cost. However, the damage to the
defendant’s Toyota Matrix was about $7,500.

2.    
Symptoms following December 3, 2008 accident

[68]        
The plaintiff said the December 2008 accident caused extensive and
debilitating soft tissue injuries that continue to interfere with all aspects
of her life, including work, physical recreation, crafts, homemaking, social
life and her personal relationship with Mr. Schmidt.

[69]        
The plaintiff said she suffered an immediate headache and pain in her
hips and back. Her injuries were much more severe than following the December
2007 accident. One week post accident, she was experiencing neck and migraine
headaches every day, at 10 on the pain scale, low back pain at 8. She
experienced right hip pain and a right ankle sprain.

[70]        
She saw her family physician and received physiotherapy treatments,
although her physiotherapist wanted to delay these until her symptoms settled
down.

[71]        
She experienced what she described as a series of endless migraines. She
found it difficult to chew food.

a)    
Treatment

[72]        
Dr. Loewen treated the plaintiff with Topamax for her migraines, later
changed on the recommendation of Dr. Dhawan to Lyrica . She saw him again after
a few months interval. He began injections in the right hip area. She was not
able to have Botox injections in her neck because her neck muscles had become
too weak. Consequently, her headache frequency and intensity increased.

[73]        
Mrs. Geiger’s symptoms affected her ability to focus on her business, even
more than following the 2007 accident. She could not seek out new clients. She
found the resulting reduced income and loss of independence “extremely
difficult” to cope with.

[74]        
She testified as well about problems with dizziness and falls it caused.
For example, she blacked out at Save-On-Foods on August 11, 2009, though she
was not injured.

[75]        
In September 2009, she saw Dr. P. Boulton, a neurologist, for evaluation
of her headaches. All his testing returned normal results. In November 2009,
Dr. Loewen referred the plaintiff to another neurologist, Dr. A.R. Wolfenden,
to assess symptoms of dizziness and numbness in the arms. A CT scan and his
clinical examination likewise demonstrated no identifiable physiological basis
for these symptoms.

[76]        
The plaintiff continued with physiotherapy, except for a gap between
July 2009 and October 2009, because she had to find a new physiotherapist due
to the illness of the one she had been seeing.

b)    
Medications

[77]        
In addition to Botox and cortisone injections, the plaintiff has taken
medications for migraines and pain relief. These include Lyrica, Topamax,
Nova-kertoric, Tramacet, Zomig, and Triptyline (nortriptyline).

[78]        
The plaintiff said her Botox injections were extremely painful,
especially in the scalp area. After injections, she usually experienced
bruising for a week after, as well as flu-like symptoms that require her to
remain on the couch. However, about a week after receiving injections, she
received some benefit. The injections took the edge off the pain, and the
frequency of her headaches would decrease from daily to once a week. The effect
of Botox lasted about two months.

c)    
Vacations

[79]        
Despite the plaintiff’s symptoms following the 2007 and 2008 accidents,
she vacationed in distant locales. In February 2008, following the December
2007 accident, she and Mr. Schmidt vacationed in Cuba. In April 2009, they
vacationed in Maui. The plaintiff testified she enjoyed neither trip due to
pain and discomfort. She avoided vacation activities she normally would have
enjoyed, such as horseback riding in Maui.

[80]        
In November 2009, she and Mr. Schmidt attended the Grey Cup. I accept
she missed out on most activities there as well.

d)    
Current symptoms

[81]        
Dr. Loewen summarized the plaintiff’s symptoms from his perspective as
of November 2009. The plaintiff has confirmed the accuracy of the contents of
Dr. Loewen’s report. At p. 9 of his January 17, 2010 report he states:

03 November 2009 – A detailed
review of her medical problems was completed. She described her headache as 9
out of 10 daily in severity at worst occurring on most days for the last 11
months and as low as 6 out of 10 at best with an average of 8 out of 10 in
severity. She described her headaches as ‘very bad’ at present, attributing it
to working on an assignment for an on-line course she was taking from UBC on
project management over the weekend. She noted that her headaches were
aggravated by sitting longer than 30-60 minutes and doing housework. She
complained of ongoing bilateral neck pain, bilateral mid back pain, and
bilateral low back pain. She described a right lateral hip pain with some
radiation down the leg and feeling of weakness at times in this leg noted that
her right lateral ankle hurts and was avoiding high heels because they
increased her frequency of falls. She said that both her jaw joints were
painful and aggravated by chewing. None of this was clearly worse since her
most recent MVA. She complained of chronic insomnia since the MVA in 2008
however noted taking no medications for it…She noted ongoing treatment of
Botox to her scalp, chewing muscles, right buttock, and lower back. They are no
longer being given at her neck due to ‘instability’ in the neck. Examination
again revealed that diffuse tender points in her muscles throughout her entire
back as well as down into her buttocks. Regular motion of her neck was found
full in all directions. She noted taking Lyrica 50mg in the morning and 100mg
in the evening per Dr. Dhawan’s urging but was not sure if this was helping.

[82]        
At trial, the plaintiff reported no symptom improvement from those
summarized by Dr. Loewen. She complained of the following:

·      
pain in the hip

·      
right ankle instability

·      
pain in the neck mainly at a level of 8 or 9

·      
pain in the hips at a level of 6 to 9, which depends on the
weather but is always present to some degree

·      
neck and back pain aggravated by working on a computer

·      
problems with dizziness and balance, which is not as bad as it
was but still occurs

·      
problems with memory and concentration, which she attributes to the
combined effect of medication and headaches

e)    
Effect on ‘By Design’ and work capacity

i.      
UBC Management Course

[83]        
Despite her symptoms, since December 3, 2008, the plaintiff has been
able to study an online course on contract management offered by UBC. At the end
of the course she will receive a certificate. This could provide her with
further credentials to impress potential clients. She has already managed
clients to some extent in her business, By Design. She testified she could
potentially earn approximately $60 to $90 per hour managing contracts. I assume
credentials earned from the course would make the plaintiff more marketable, when
she eventually resumes working. The plaintiff testified that the purpose of
taking the course was to keep her Resume up to date and her mind active; but said
she would not be able to perform a contract now with her current symptoms. Her
main purpose was to see if she could return to work because her course work
mimics a work environment.

[84]        
The course requires her to take one course at a time, a pace she said
she would have doubled, if healthy. In any event, she has to complete the
course within a year. She has been unable to keep up with assignments; her
instructors have granted extensions;her marks have been good.

VII.          
Prognosis

[85]        
I will analyze the plaintiff’s claim for loss of income and loss of
earning capacity after first reviewing the prognoses offered by treating and
examining physicians, Dr. Loewen, Dr. Dhawan for the plaintiff and Dr. Bishop
for the defendant

A.   
Dr. T. Loewen

[86]        
At page 11 of his report, Dr. Loewen offers both a compact summary of
the plaintiff’s injuries following the various accidents and his prognosis.

SUMMARY OF INJURIES AND PROBLEMS

Ms. Geiger’s complex history including
interplay of four separate motor vehicle accidents, represent not only a
medical challenge, but also a medico-legal one as it pertains to causality and
attribution. In other words, which MVA gets blamed for which problem and to
which degree? The following summary will attempt to at least organize this in
some coherent fashion.

1.         Chronic neck pain – moderate in
severity. It likely represents a combination of soft tissue injuries as well as
myofascial pain. Causality – this began with her first MVA at age 21 the neck pain got worse with each
subsequent MVA including the one in 2004, 2007, and 2008.

2.         Dizziness – Presently moderate to
severe and intermittent. It is my opinion, as well as that as Dr. Woolfenden, that this most likely represents some benign
positional vertigo, or some
variation thereof within the vestibular system (balance system within the inner
ear). This problem with her
first MVA at age 21, but was only mild and intermittent. She had some mild worsening in 2004 with her MVA
but continued to have it chronically and intermittently. Then after her MVA in
2007, it initially got much worse and then better but again never completely
gone. Following the MVA of 2008 it was much worse again. This problem can be
attributable to whiplash type injuries or anything that vibrates or shakes the head as the problem involves the
misplacement of particles within the semi- circular canals of the inner ear.

3.         Headaches – Diagnostically, these
likely represent ‘chronic daily headaches’ with neck pain as one of
contributing factors ("cervicogenic") and with associated migraine
opinions are indeed corroborated by Dr. Peter Boulton, neurologist. Her
headaches began following her MVA of 2004 but were controlled by Botox quite
well until the MVA in 2007 when they got much worse and remained quite
persistent but were again improving until her MVA of 2008. At this point it
would be described as severe, and having significant impact on her day to day
function.

4.         Left trapezius pain – myofascial
– mild to moderate – This began and became chronic with her MVA of 2004. It was
made modestly worse by the subsequent two MVA’s.

5.         TMJ (temporomandibluar or jaw
joint) pain – bilateral – Mild to moderate – began in 2004 and improved
significantly spontaneously but was never completely gone. It did flare from
the MVA in 2007 with significant improvement following Botox. It flared again
in 2008 with the MVA. She continued to get Botox into her chewing muscles and
described the symptoms now as only mild and intermittent.

6.         Low back pain – likely at least
partly due to her arthritis and degenerative disc disease. The pain began only
with the MVA of 2007 and was mild and persistent, but at times nearly gone.
This was again clearly aggravated to the mild or moderate level by the MVA in
2008.

7.         Right ankle pain – medial – Likely
represented a mild sprain – Began only with the MVA of 2008 – At this point
only a minor problem.

8.         Chronic insomnia – He describes
this as beginning only with the MVA of 2008 aside from short episodes due to
her pain prior to this.

9.         Right inguinal (groin) pain –
Likely referred pain from muscle pain generator in the buttock – this began
with the MVA of 2004. Botox to the buttock made it significantly better. It was
aggravated by the MVA of 2007 and then with further Botox got much better
again. Then once again this was flared to a more significant problem in the MVA
of 2008 and has remained mild at this point.

LIMITATIONS/IMPAIRMENTS:

Ms. Geiger’s
current impact many area of her life. She finds it difficult to do her
housework including vacuuming, high dusting, meal preparation and other light
duties as when she does, her headaches and neck pain worsen, and at times she
gets times of absences of dizziness. She had drastically reduced her work as an
accounting software consultant due to the headaches and neck 295  pain. She
notes that her symptoms were not present she would like to work full time. At
present she is working only intermittently but she is completely an on-line
course through UBC on project management as the flexibility of this course has allowed
her to not work on days her pain is bad. She previously enjoyed going for long
walks up to 10 km and at times running and now she can only walk for 20-30 minutes due to the neck and back pain.
She also notes that her ‘overall
function is much worse’. This is much more comprehensive description than
attributing to her decreased activity to any one single thing. She enjoys
painting pictures but at this point must limit the duration as prolonged
sitting and for bending of her head clearly aggravated her neck and head pain.
She can typically sit no longer than 30-60 minutes without getting worse.

[87]        
With respect to prognosis, Dr. Loewen finds the plaintiff’s final
prognosis must be considered “somewhat guarded”

I believe that her chronic neck,
trapezius, and general back pain may improve a little further but will clearly
remain persistent. Her headaches are multifactorial and have become quite
chronic and persistent as well. Dr. Boulton has reviewed in detail her various
options and suggest that due to side effects or lack of effectiveness most her
options have been exhausted… I believe that she should continue to remain as
physically active as possible including regular core and body strengthening
exercise … despite the best efforts of the patient and her medical
practitioners, I believe she will have ongoing chronic pain in many of the
areas previously identified.

B.   
Dr. Dhawan

[88]        
Dr. Dhawan states in his February 7, 2010 report that prior to the
accident of December 1, 2007, the plaintiff had a history of chronic pain
causing pain especially on the left side of the body, left neck, shoulder and
some headaches for a number of years from previous accidents; however, she was
fully functional.

[89]        
He felt the December 1, 2007 accident did not cause any new injuries but
a worsening of her pre-existing symptoms of headache, neck pain, shoulder pain
and back and buttock pain.

[90]        
With respect to the December 2008 accident, he wrote at page 8:

Given the chronicity of her symptoms, multiple accidents and
worsening symptoms, I feel that she is going to have long term symptoms of
headache, neck, shoulder and girdle and buttock pain and will require
indefinitely Botox, cortisone shots, pain killing medications and medications
like Lyrica.

…

It is my understanding that due
to severe worsening of her symptoms, severe headaches, dizziness and poor
sitting tolerance of maximum one hour at a time since her December 2008
accident she has not been able to work and she is unlikely to continue to be
able to work in the near future.

C.   
Dr. P. Bishop

[91]        
Dr. Bishop’s report is dated August 13, 2008. Dr. Bishop saw the
plaintiff on August 13, 2008, before the December 2008 accident. He did not see
the plaintiff after it.

[92]        
He felt the December 2007 accident had caused neck and upper back pain,
mild soft tissue injury to both shoulders, right groin area symptoms and
cervicogenic headache with migraine features. He was unsure about causation of
the plaintiff’s lower back pain. He felt the plaintiff required no further
treatment at that time and that the plaintiff’s reported disabilities related
to her spinal symptoms far exceeded any objective evidence impairment. He felt
physiotherapy during the acute phase of the plaintiff’s recovery, which he
placed at 12 – 16 weeks post motor vehicle accident, was reasonable.

VIII.        
Summary of positions of the parties

A.   
Plaintiff

1.    
Position on her Injuries

[93]        
The following summarizes the plaintiff’s position damages.

[94]        
The plaintiff said that by the fall preceding her December 1, 2007
accident, symptoms remaining from her 1979 and 2004 accident were comparatively
minor and not interfering with her demanding work or active leisure activities.
She was in the start up phase of By Design, which she had started after Sage
terminated her employment in late 2006. The plaintiff explained she thought she
could count on the extensive experience and business contacts she had
accumulated at Stage. She was also planning her marriage to Mr. Schmidt.

[95]        
She acknowledges that in December 2006 she had started Botox injection
for migraine headaches. She said Botox injections had proven effective but she
planned to discuss ending them around the time the December 1, 2007 accident
occurred.

[96]        
The plaintiff says her 2007 income from By Design was not representative
of what she was capable of earning with By Design because she had already planned
to take it easier in the year. Further, her headaches and other symptoms had
lessened considerably by fall 2007. She had her substantial severance package
from Sage for income to support herself.

[97]        
Her symptoms following the December 1, 2007 accident made important
facets of her work, such as travel, very difficult or impossible. She could not
perform all the work potentially available to her. She was not able to market
or develop By Design.

[98]        
However, the plaintiff maintains that by fall 2008, her symptoms had
lessened considerably, demonstrated in part by a business project idea she had
conceived and proposed in August 2008 to Morgan Thomas, a former colleague and
supervisor at Sage. The plaintiff’s general position is that although she had
not fully recovered from the effects of the 2007 accident, she was beginning to
feel better, and was much more physically active.

[99]        
The defendant says the December 2008 accident aggravated her existing
injuries and added chronic insomnia to them. They were much more serious than
they had been previously. They seriously inhibited her capacity to travel, work
at a computer, market and promote her business and devote the time necessary to
take on more clients and efficiently serve the ones she had. She gave up on the
joint project she had intended to develop with Mr. Thomas.

[100]     The
plaintiff made some slow recovery from her December 2008 injuries, which she
had indicated to Dr. Loewen followed an undulating pattern; but eventually her
symptoms had settled into the pattern that Dr. Loewen diagnosed as a chronic
myofacial pain syndrome.

[101]     The
plaintiff submits her prognosis for further recovery is poor.

2.    
Loss of amenities

[102]     Because
the plaintiff has not painted since the 2007 accident, finds photography very
difficult and has given up ballroom dancing, yoga and running, the plaintiff
submits she has suffered a serious loss of enjoyment of life. She says her
headaches have stripped her of her former creativity. Intimacy with her fiancé
has been impaired as well.

[103]     She
compares the effects of the accidents on a percentage scale, estimating the
causative effect of her symptoms prior to December 1, 2007 at 10%, versus 90%
from the combined effects of the 2007 and 2008 accidents. With respect to those
latest accidents, she places the respective contributions to her symptoms for
2008 at 75% and for 2007 at 25%.

3.    
Loss of income

[104]     The
plaintiff claims she has suffered a large past income loss. She says if she had
been healthy, she would have generated self-employed income between $100,000
and $220,000 a year. She said various agencies sent her opportunities on a
regular basis she had to pass up due to her symptoms. Her migraine headaches
and other pain prevent her from sitting at the computer for significant periods
of time. She says she cannot drive when suffering from a migraine. She cannot
concentrate well because of headaches or her medication.

[105]     She has no
plans after graduation from her UBC management course, except perhaps to take
another course in order to keep her brain active. She takes the position her
prognosis is not good and she does not see how she is going to be earning very
much income going forward. She claims $121,000 for past loss of earnings and
$546,000 for future loss earning capacity.

B.   
Defendant

[106]     This is
the defendant’s view of the plaintiff’s case. Counsel for the defendant
emphasized the plaintiff had been suffering from chronic pain for about 24
years before the December 1, 2007 accident. Counsel submits the September 2004 accident
contributed to a more significant worsening of the plaintiff’s health. He says
the clinical records of the treating physician indicate the plaintiff’s
continuing symptoms were much worse before the December 1, 2007 accident than
what the plaintiff has indicated. He refers to statements she made in August
2008 to Dr. Bishop to the effect that prior to December 1, 2007 accident,
migraine headaches were limiting her to working in her company 75% of full
time.

[107]     The
defendant also submits the plaintiff was making a typical recovery from the
effects of the December 2008 accident, and as of April 2008 had substantially
returned to her pre December 1, 2007 pre-accident state, as noted by Dr. Loewen
on p. 4 of his January 17, 2010 medical report. He submits the plaintiff
reported a worsening of symptoms because she was reporting them to Dr. Loewen,
knowing he was interviewing her for a medical-legal report ICBC had asked him
to prepare.

[108]     Counsel
also pointed out that the plaintiff’s reported improvement by April 2009—to a
state Dr. Loewen had considered equivalent to her symptoms remaining from the
2007 accident—corresponds to Dr. Bishop’s evidence that the acute stage
following soft tissue injuries typically lasts about 12 to 16 weeks.

[109]     Counsel
for the defendant says that what he submits are misleading statements made by
the plaintiff, such as those relating to why she left Sage, indicate her
willingness to exaggerate and mislead when she believes it will benefit her
case. The defendant submits the plaintiff is not a credible witness and that
the court should be wary of her testimony.

[110]     In sum,
counsel submits the plaintiff’s prognosis before either of the 2007 or 2008
accidents would not differ fundamentally from what it is now—chronic pain, and
that in any case she has fully recovered from the effects of her injuries.

IX.           
Findings

A.   
Credibility of the Plaintiff

[111]     Counsel
for the defendant’ challenge to the plaintiff’s credibility rests primarily on
out of court statements or testimony he submits are untrue, inconsistent or
exaggerated.

[112]     Deciding
whether a witness is credible involves assessment of an array of factors. A
long course of productive work and self reliance is usually a significant one.
In this case, the plaintiff achieved a high level of competence and income in
her demanding work, even though she had to deal with a certain level of chronic
pain following her 1979 accident, intensified following her 2004 accident. She
was suffering migraine headaches through 2006 that led to Botox treatments, but
she continued working. I have not overlooked supervisor complaints in some
annual reviews about excessive absences, but note as well that during those
same annual reviews, supervisors praised her work. Her work was stressful, with
her supervisors quite often phoning her at home on weekends asking her to come
to the office to deal with a problem. She appears to have served her employer
well.

[113]     The
plaintiff’s work and personal history gives no foundation for a conclusion the
plaintiff seeks a way to escape responsibilities and take her ease at someone
else’s expense, or that she would deliberately mislead the court for financial
gain.

[114]     However,
counsel for the defendant is justifiably concerned about certain portions of
the plaintiff’s testimony. The plaintiff was not completely forthright about
the reasons she left Sage in 2006; and she gave inconsistent reasons why she
was not working full time in the year before her December 1, 2007 accident. I
refer to inconsistencies surrounding her responses to the question whether she was
working less in 2007 because she wanted to ease off a little after working so
hard at Sage, or because the severity of her headaches required her to do so.
Her testimony on these points is important because the level of her 2007 income
is an important part of the foundation for assessing the income potential of By
Design; and her health is an important marker of her future capacity to achieve
the potential income she claims.

[115]     However, I
note that some statements were made against her litigation interest—for
example, the August 2008 statements to Dr. Bishop that she had left Sage
because of migraine headaches, and that her headaches prior to December 1, 2007
were severe enough to reduce her work hours for By Design to 75% of full time.
The plaintiff acknowledged she probably made this statement to Dr. Bishop, but
then, as counsel for the defendant noted, returned to her position that she was
working less because she wanted to take more time off. It is possible the truth
encompasses both: voluntarily taking some rest after working so hard at Sage
over the years, and also having to work less because of her migraine headaches.

[116]     Considering
the evidence as a whole, I find the plaintiff was credible giving her evidence,
but not always the most reliable historian.

[117]     The
plaintiff appears markedly exasperated by what she perceives as a loss of
self-worth because she her activities are limited and she feels dependent on
her fiancé now. In my view, she could have benefitted from a course of
counselling, commonly prescribed in cases of chronic pain.

B.   
Other specific points raised by the defendants

[118]     I will now
dispose of some of the other specific criticisms counsel for the defendant made
of the plaintiff’s case.

1.    
Pre-2007 accident 75% work-capacity issue

[119]     Regarding
the plaintiff’s August 2008 statement made to Dr. Bishop that prior to the
December 1, 2007 accident she had been working only 75% of capacity because of
migraine headaches and that her headaches impaired her ability to work to her
full capacity, I find that she was so limited and that although she was
improving, limitation of her capacity to work continued at the time of the
December 2007 accident. I also accept to some degree the plaintiff’s evidence
that she intentionally eased off her work in 2007. Effectively, this means By
Design’s earnings in 2007 are not representative the plaintiff’s income earning
potential.

2.    
Re improvement in plaintiff’s condition following the 2008 accident

[120]     Regarding
the defendant’s submission that the plaintiff had largely recovered by April 2009
from the effects of her December 3, 2008 accident and had soon after reported
dramatically worsening symptoms to Dr. Loewen just to improve her litigation
position, I find the plaintiff had experienced improvement between December 1,
2008 and April 2009; and by that time she had recovered from at least her acute
post-accident symptoms. However, I accept Dr. Loewen’s attribution of the
reported worsening symptoms to a clinical picture of chronic pain syndrome. I
also note the plaintiff had reported an undulating pattern of symptoms, and
find that this was also part of her clinical picture, and to some extent
explains her worsening symptoms after she earlier had reported substantial
improvement.

[121]     In sum, I
find that by April 2009, the plaintiff had not fully recovered from the
injuries she sustained in 2007 and especially 2008. She continued to remain
symptomatic from them, as well as the effects of her earlier injuries.

3.    
Enrolment at UBC in January 2009

[122]     Counsel
for the defendant submitted that the plaintiff’s January 2009 enrolment in a
UBC online course is inconsistent with her testimony about her descriptions of
the severity of her symptoms then. I find some merit in that submission.
However, in my view, the plaintiff’s application is equally consistent with the
plaintiff’s expectation of sufficient recovery by the time course was to begin
in April 2009. I do not view her enrolment evidences the fact her symptoms were
not as severe as claimed. I also accept she has found it difficult completing
some of course work on time as a result of her 2008 accident injuries in
particular.

4.    
Holidays inconsistent with severe symptoms argument

[123]     Counsel
made a similar submission with respect to the plaintiff’s holiday travel to
Cuba in February 2008 and Maui in May 2009, suggesting these trips demonstrated
the plaintiff’s ability and willingness to endure long periods of travel soon
after her December 2007 and December 2008 accidents. The plaintiff testified
the tickets had already been purchased for the 2008 trip to Cuba and that she
did not enjoy that trip. She also did not enjoy the trip to Maui and did not
engage in activities she normally would have. The trip to Cuba in particular
would have involved long periods of sitting in a plane. The underlying premise
of the defence submission is that while sometimes it can be worthwhile enduring
discomfort for the chance to rest in a tropical climate, if an injured person
feels truly miserable they would stay home. I accept the plaintiff’s
explanation for carrying on with plans already made for the February 2008 trip
in Cuba. I do not find the plaintiff’s vacations demonstrate the plaintiff has
dishonestly exaggerated her symptoms.

5.    
Levels of pain following 2004 accident

[124]     The
plaintiff testified she experienced occasional headaches following the
September 2004 accident. Against that claim, counsel for the defendant directed
the plaintiff to clinical records that indicate she was experiencing intense
migraine headaches and other symptoms following the 2004 accident.

[125]     For
example, on December 6, 2007, the plaintiff told Dr. Dhawan she was
experiencing neck and shoulder pain at work and that her neck felt like it was
in a vice. In March 2006, she complained to Dr. Loewen that her neck and
shoulder pain were preventing her from increasing her running distance and she
felt exhausted.

[126]     However,
the incidence of the plaintiff’s complaints and attendances evidently lessened
leading into the months preceding the December 1, 2007 accident. Her last Botox
treatment with Dr. Dhawan before the December 2007 accident was October 16,
2007, when the plaintiff told Dr. Dhawan her last Botox treatment had worn off,
her shoulder was still bothering her and she was attending Pilates and yoga 3
times a week. These statements to Dr. Dhawan are consistent with her claim of
improvement and better function before the December 2007 accident. Further, Mr.
Schmidt confirmed the plaintiff was jogging 7 to 10 kilometres twice a week
before the December 2007 accident. I accept the plaintiff had become more
active and was feeling considerably better by then.

[127]     In sum, I
find the plaintiff was experiencing quite severe symptoms at times following the
September 2004 accident, and had not fully recovered from them at the time of
the December 2007 accident. But I also accept that the plaintiff had
experienced marked improvement by then and was able to participate more fully
in physical activities again.

X.             
Assessment of past income loss

1.    
After December 1, 2007

[128]     The
plaintiff endorsed the factual bases, reasoning and calculations in the
February 24, 2010 report of chartered accountant and economist Kevin Turnbull.
He testified that his calculations illustrated the plaintiff’s potential loss
of income, based on a set of assumptions. These calculated losses do not
represent an opinion on the amount of the plaintiff’s past loss of income or
future earning capacity. Nonetheless, the plaintiff advances Mr. Turnbull’s
assumptions and the amounts he calculated as her claims for loss of past income
and loss of future earning capacity.

[129]     In his
report, Mr. Turnbull states he was informed that at the time of the first
accident in December 2007, the plaintiff’s business was “just getting going.” 
But I agree with Mr. Turnbull’s opinion that it is difficult to discern in the
2007 billings any pattern  to indicate the plaintiff’s business was about to
take off, except for the relatively high billings in the months of January,
February and March 2008. For those months, I accept the plaintiff’s evidence
that the amounts billed related to work performed in the last months of 2007.

2.    
Mr. Turnbull’s assumptions for loss of income

[130]     Mr.
Turnbull calculates past loss of income based on the following assumptions:

·      
It is unlikely the plaintiff would have remained content with
permanently low income from her business. This assumption rests on the premise
people usually act out of economic self interest.

·      
It is reasonable to assume she would have built her income to a
level at or near her income level with Sage.

·      
If she had not achieved an acceptable level she would have sought
alternative employment at the same income level she had been earning at Sage.

·      
This employment would have produced annual income of at least
$112,000 per annum.

[131]     Mr.
Turnbull assumed an annual level of income based on the average of the
plaintiff’s 2003 to 2006 Sage earnings, $112,000. He accepted this as the best
indicator of the plaintiff’s potential without accident earnings.

[132]     However,
he assumed the plaintiff would not have achieved this level of income right
away. Instead, he assumed earnings for the 2008 calendar year would be half of
$112,000, $56,000; and those for the 2009 calendar year three-quarters of
$112,000, $84,000. Going forward from 2009, he assumed annual earnings of
$112,000.

[133]     For
“consistency’s sake”, he calculated and deducted EI premiums and Income Tax;
i.e, he treated the plaintiff’s income as salaried income. Based on the
foregoing assumptions, he estimates the plaintiff’s net past income loss to the
date of trial at $121,393.

3.    
Defendant’s criticism of Mr. Turnbull’s methodology

[134]     Counsel
for the defendant submits Mr. Turnbull’s methodology fails to heed risk factors
he says would have hindered the plaintiff’s business success. These include: an
inability to grow and generate income, potential negative impacts the 2008
recession likely would have had on the plaintiff’s business and her inability
to find alternative employment with a salary equivalent to the one she received
at Sage.

[135]     Counsel
for the defendant also emphasized that the plaintiff had advised Dr. Bishop
that before the December 1, 2007 accident, her migraine headaches restricted
her to working only 75% of full time. Counsel submits such a limitation would
make it highly improbable the plaintiff would have found income equivalent to
Sage.

[136]     Pointing
out that By Design’s sales in 2007 and 2008, at around $30,000, were virtually
identical, counsel submits this was essentially a failed business.

[137]     Regarding
the proposal the plaintiff and Mr. Thomas made to Sage to prepare a program
instructional manual for them, he points out the proposal was rejected by Sage
and moreover the plaintiff gave no evidence about the potential value of the
proposal, had it been accepted. However, I did not hear the plaintiff seeking a
specific amount of money for the shelved project based on some putative value;
but that it be considered as an example of her work incapacity.

[138]     Whatever
the case, counsel for the defendant submits the plaintiff has not suffered any
wage loss as a result of the accidents in 2007 and 2008. Alternatively, counsel
submits that if I should find the plaintiff suffered a loss of income, the loss
should be calculated on the basis of income actually derived from her own business,
not from former employment.

[139]     Based on
counsel’s methodology, he calculated average annual income of $12,168, about
$1,014 per month. When multiplied by the 31 months passed since the December 1,
2007 accident, less the approximately $15,300 earned by the plaintiff during
that time, (which of course assumes a favourable liability finding for the
December 2007 accident) this produces a past income loss of $16,134.

[140]     The
defendant’s actual numbers are approximations of $1,000 per month for 31 months
($31,000) less the approximate earnings of the plaintiff ($15,300), for a
shortfall of $15,300.

4.    
Discussion/Analysis

[141]    
As mentioned earlier, the plaintiff maintains that following the 2007
and 2008 she was unable to work to her capacity accidents because at times she
was having migraine headaches virtually every day, more so following the 2008
accident. She points out she had told Mr. Thomas she was no longer able to work
on the project they were planning together. She says she was regularly turning
down new work. However, the defendant aptly notes there is no documentary
evidence showing this. Even so, given the plaintiff’s long term involvement in
the accounting software business, and also given her efforts had already
generated sizeable invoices for the company in early 2009, I find it reasonable
to conclude the plaintiff would have continued to receive some new business,
and also reasonable to conclude that, given the pain and poor concentration she
at times experienced, she would have had to turn down some new work.

[142]     It is also
reasonable to conclude that given the degree of pain and discomfort she felt at
times, she would not have been able to market her business as effectively as
she would have otherwise. I accept that sitting at a computer for long periods
and travel would have been very difficult for her at times, especially
following the 2008 accident.

[143]     Nonetheless,
I do not find $112,000 is a realistic basis for an assessment of either past or
prospective losses. I have no evidence of the income the plaintiff needed to
meet her financial obligations. Mr. Turnbull’s ‘economic self-interest’ premise
also fails to allow for potential indirect benefits from self-employment such
as the time and flexibility to pursue other enjoyable interests, such as
painting and photography, in exchange for a lower income.

[144]     The defendant’s
other criticisms of Mr. Turnbull’s methodology are valid.

[145]     I find the
defendant’s analytical approach to past loss of income is flawed as well.
Counsel’s calculations rest on a number of unjustifiably negative assumptions
that in my view undervalue the plaintiff’s extensive knowledge and skills and
consequently, the income potential of her business.

[146]     I accept
the plaintiff has been dealing with significant amounts of pain and discomfort
since the 2007 and 2008 accidents, particularly the latter, and it is
reasonable to assume this would have inhibited her ability to work to her
capacity, seek out new work, market her business, etc.

[147]     I find to
the date of trial, the 2007 and 2008 accidents, have caused the plaintiff
significant income losses.

[148]     In
essence, the plaintiff is claiming compensation for a lost business
opportunity. The plaintiff cannot produce documentary evidence, such as well
established pattern of business revenue and expenses, on which to calculate a
past loss of income. And I heard no expert evidence about the potential income
and growth potential of businesses selling services similar to those of By
Design.

[149]     Damages
for income losses in cases such as this require an assessment. Still,
calculations based on a reasonable set of assumptions can help the trier of
fact think through to an over-all assessment that is fair to both parties,
based on all the accepted evidence. Mr. Turnbull’s assumptions and calculations
are useful to that end, to some extent; but for reasons stated, are flawed.

[150]     I find the
following assumptions are more reasonable than those laid out by either party :

·      
By Design’s revenues in the first year of business, 2007 do not
represent its maximum potential.

·      
In 2007, the plaintiff reduced the level of her effort and
commitment to her business, partly as a result of personal choice. (This is
exclusive of the 25% reduction in her capacity due to her migraine headaches).
In addition, it is reasonable to assume that she was not able to devote the
equivalent of a full calendar year to her business due to start up activities
she would not have to repeat in later years. This would free up some additional
time for revenue-producing work.

·      
A reasonable figure to represent the downward pressure these
factors would have on By Design’s first year of revenue is 25%. Thus, By
Design’s revenue in the first year could fairly be increased to 25%. Therefore,
approximately $38,000 is a fairer representation of By Design’s base revenue
potential absent atypical factors that would depress revenues in the first
year.

·      
Without the accidents, By Design’s revenues would have increased
by 15% a year in the first years of the business. This assumes a moderate
degree of success for a start-up business to the date of trial.

·      
The plaintiff’s expenses, exclusive of management salaries, are
averaged at $14,000 per year

·      
Given acceptance of Dr. Dhawan’s opinion that the plaintiff would
not be able to work in the near term, July 1, 2010 is a reasonable end date.

[151]     These
assumptions lead to a calculated loss of net revenue to July 2010, rounded off
and up, of approximately $66,000, (see tables attached as Schedule “A” to these
reasons for reference).

[152]     Further,
the loss of revenue has to be adjusted to reflect the fact that the December 1,
2007 accident remains partly responsible for the plaintiff’s continuing pain
and disability. (The effects of the plaintiff’s September 2004 accident are
already accounted for in the fact she was able to work only 25% of full time in
2007, thereby already negatively impacting By Design’s base earnings).

[153]     The
plaintiff divided the percentage contributions of the December 1, 2007 and
December 3, 2008 accidents to her continuing pain and disability at 25% and 75%
respectively. Considering accepted medical and other evidence as a whole, I
find the plaintiff’s numeric division approximates my on impression of a fair
division of damages between those accidents.

[154]     Therefore,
applying a 25% reduction to the calculated losses for 2009 and 2010 leaves a
rounded figure of $40,500 for By Design’s lost revenue and the plaintiff’s
gross loss of income attributable to the 2008 accident.

[155]     That
assumed and calculated, this set of assumptions and calculations remains only
an analytical aid towards the objective of an award that is fair to both sides.
Calculations such as this cannot replace an assessment because there are many
variables and factors that are difficult to calculate, such as: motivation to
succeed, and conversely, motivation from fear of failure; new opportunities
that might present themselves if the plaintiff were in circulation; etc.

[156]     Both
negative and positive contingencies must be considered.

[157]     I find the
plaintiff‘s lost pre-tax income to the date of trial is $50,000. (I appreciate
that the calculations set out in the table actually extend to a date a little
past the date of trial: $50,000 represents an assessment of the plaintiff’s
loss, considering the evidence as a whole)

[158]     Counsel
can have Mr. Turnbull calculate the net amount payable on the assumption the
plaintiff would make rational business choices to reduce her exposure to tax.
If they wish to avoid that expense, they can agree on a figure, or apply if
necessary.

XI.           
Loss of Earning Capacity

A.   
Income Potential

[159]     The plaintiff
relies on the opinion of Mr. Turnbull and Table A attached to his report as the
basis for the $546,000 claimed for loss of earning capacity. Mr. Turnbull
assumes that in future the plaintiff will remain capable of earning $60,000 per
year in 2010 dollars. Comparing this with what he assumes to be without
accident future earnings capacity of $112,000, he produces an estimated loss of
$52,000 per year, which yields a present value of $546,000 to the age of the
plaintiff’s retirement. The plaintiff claims this amount. I note that the loss
of earning capacity calculations have not been adjusted for employment
contingencies.

[160]     The
defendant premises her claim for loss of future earnings on intractable
problems with neck pain, dizziness, migraine headaches etc.

[161]     The
plaintiff also relies on the prognoses of Dr. Loewen and Dr. Dhawan. However, I
note neither of their prognoses are settled. Dr. Loewen agreed the plaintiff’s
prognosis was guarded even before the 2007 and 2008 accidents. Dr. Dhawan
testified he felt the plaintiff would be unable to work in the near future, and
he said “her prognosis is uncertain in that regard and she is still undergoing
assessments and treatments of her worsened symptoms since her last accident… her
treatment and follow-up continue.”

[162]     The
plaintiff’s submissions make no allowance for the finding she was not able to
work at 75% of full time capacity prior to the December 2007 accident. It makes
no allowance for the fact the plaintiff’s prognosis would have been guarded
irrespective of the two accidents she was involved in.

[163]     Further,
as Mr. Turnbull testified, his calculation was for illustrative purposes only,
and did not represent his opinion of the plaintiff’s loss of earning capacity.
In his report, Mr. Turnbull stated, “it is difficult to provide any kind of
meaningful projection of Ms. Geiger’s post accident future earnings.”

[164]    
Counsel for the defendant submits that if I should find the plaintiff
has suffered a loss of earning capacity I should apply Brown v. Golaiy,
[1985] B.C.J. No. 31 (S.C.), and make an award commensurate with the tests set
out at para. 8 of that decision:

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.

[165]     On the first
test, the defendant submits the plaintiff will be only nominally less capable
overall of earning income from all types of employment.

[166]     On the
second test, the defendant submits that if the plaintiff’s injuries are found
to be ongoing, they will make her only nominally less marketable or attractive
as an employee to potential employers.

[167]     On the
third test, counsel for the defendant submits that, considering the effects of
the plaintiff’s prior injuries, she would have very few job opportunities
available to her.

[168]     On the
fourth test, counsel submits the plaintiff has not shown herself capable of
earning anything but a meagre income immediately prior to the December 1, 2007
accident due to her chronic pain.

[169]     Accordingly,
counsel submits the plaintiff ought to be given an award based on the average
of her net income and management salaries from 2008 and 2009, with an award
based on one year of that average income, i.e. $12,000.

[170]     I cannot
agree with the submissions of either counsel, although I do agree with
criticisms defendants’ counsel made of assumptions the plaintiff’s claim rests
on.

[171]     In my
view, a loss of earning capacity award should make some allowance for the
plaintiff’s loss of her opportunity to develop her business. It cannot be
fairly said that the plaintiff lacked talent, or ability or a strong work
ethic. She is a self admitted perfectionist, which sometimes can result in a
drive to produce high quality work that will win the approval of clients and
more business. The plaintiff has demonstrated she had a viable business.
Clients were requesting her services. She was in a field that could not be
characterised as a sunset industry; and she had considerable skills to offer.
Therefore, in my estimation the plaintiff was a person who would be valuable to
herself and prospective employers prior to the 2007 and 2008 accidents.

[172]     There is
no question the plaintiff has been rendered less capable overall from earning
income from all types of employment on account of her migraine headaches and
pain following the accidents, especially the one in 2008. She demonstrated she
was able to continue working with some level of chronic pain prior to December
2007; and indeed she did continue to work to some extent in 2008, until her
accident in December of that year. Someone unable to concentrate fully or less
able to expend time and effort in developing their business is less marketable
and attractive to themselves as a business owner, as well as to potential
employers. Logically, this would have made her less able to take advantage of
all job opportunities that might otherwise have been open to her had she not
been injured.

[173]     However,
the plaintiff’s satisfaction of the tests in Brown does not answer the
question what level of compensation that would be fair and reasonable in the
circumstances of this case ─ particularly bearing in mind that before
December 2007 she was already unable to work at capacity; she had a 25 year
history of chronic pain; and her prognosis was guarded, irrespective of the
2007 and 2008 accidents. Further, assessment of her loss of earning capacity
cannot fairly be premised on her current condition, given Dr. Loewen
anticipates further improvement and Dr. Dhawan’s prognosis is unsettled.

[174]     It is not
clear whether the plaintiff’s business would have succeeded, or if it had,
whether it would have met her income expectations, given her limitations.
Further, I find the plaintiff would not have wanted to work as hard, or in such
stressful conditions as she had experienced at Sage. In my estimation, it would
be unfair to the defendant to base any assessment on that premise.

[175]     An award
for loss of earning capacity should be premised on an expectation the plaintiff
will improve in future – indeed Mr. Turnbull’s calculation assumes an income of
$60,000 per annum.

[176]     Given the
prognoses and considering the plaintiff’s history and the evidence as a whole,
I find the plaintiff’s symptoms will improve, but her recovery will be somewhat
prolonged and incomplete in the sense she will not return to the position she
was in, either in December 2007 or December 2008.

[177]     In sum,
considering all the medical-legal and related evidence, I find the combined
effects of the plaintiff’s 1979 and 2004 accidents have contributed 15% to the
total level of the plaintiff’s continuing pain and disability since December 3,
2008. Although the 2004 accident brought on the plaintiff’s migraine headaches,
I accept her evidence that those symptoms had substantially improved before the
December 1, 2007 accident, and I note she continued to work throughout the
period between September 2004 and the end of December 2006, when her employment
at Sage was terminated. However, following termination of her employment from
Sage, she worked at 75% of her capacity due to persisting migraine headaches,
although they had been decreasing in the months leading up to the December 1,
2007 accident.

[178]     The
December 1, 2007 contributed aggravation of existing symptoms, most notably the
plaintiff’s migraine headaches and added some new symptoms, but these were
comparatively mild. The December 2008 accidents resulted in a marked increase
in the plaintiff’s symptoms. However, I find that although the plaintiff had
been recovering quite well from the effects of the December 1, 2007 accident by
the time of the December 2008 accidents she remained symptomatic and likely
would have remained so to some extent from the effects of that accident.
However, the December 2008 accident resulted in symptoms considerably worse
than those that followed the other accidents and is major contributor to her
continuing symptoms.

[179]     The
plaintiff’s prognosis remains guarded, but it is only a year and five months
since the December 2008 accident. I find insufficient basis for concluding the
plaintiff will not see improvement with time and further treatment, as she had
in the past. However, I accept her prognosis is guarded, and this must be
considered. Conversely, the plaintiff’s prognosis remained guarded irrespective
of either the 2007 or 2008 accidents.

[180]     For the
purposes of assessing loss of future earning capacity, I award $125,000. This
award allows for the continuing effects of the plaintiff’s September 2004
accident and division between the 2007 and 2008 accidents.

XII.          
Loss of homemaking capacity

[181]     With
respect to loss of housekeeping capacity, I find the plaintiff’s capacity to do
some housekeeping in the home she shares with Mr. Schmidt has been diminished
to some degree. However, Dr. Dhawan counsels the plaintiff to remain as active
as possible. I award $6,000 for loss of housekeeping capacity attributable to
the 2008 accident.

XIII.        
Special damages

[182]     With
respect to special damages, the plaintiff claims $1,328.25 for Pilates therapy,
I note the plaintiff attended Pilates prior to her December 2007 accident. I
disallow that amount.

[183]     The
plaintiff claims $1,113 for Treloar physiotherapy; I allow 75%, $834.75. I
allow the $290.65 claimed for prescription medication. For Botox injections I
allow 75% of treatments after December 3, 2008, $545.31.

[184]     I allow parking
expenses at $14.50.  For Langley Physiotherapy I allow 75% of $1,010, $757.50.

[185]     Total
award for special damages is $2,442.71

XIV.       
Cost of future care

[186]     With
respect to cost of future care, the plaintiff seeks an award of $10,000
premised on the submission that she will require ongoing treatment for her
symptoms in the foreseeable future and that this amount is reasonable given
expenses incurred in the past.

[187]     The
defendant submits the plaintiff would have continued to receive Botox
injections irrespective of the accidents.

[188]    
The irreducible fact is that the plaintiff was continuing to receive
Botox injections at the time of the 2007 accident. The only area of uncertainty
arises from the plaintiff’s thinking that she wished to speak to Dr. Dhawan
about discontinuing. It is not clear how the plaintiff is deriving any benefit
currently from the Botox, given her testimony about the intractability of her
symptoms. The evidence is thin on what the plaintiff’s future needs will be,
although Dr. Dhawan did state in his report:

the plaintiff is going to
continue to have long term symptoms of headache, neck, shoulder, girdle and
buttock pain and would require indefinite Botox, cortisone shots, pain killing
medications and medications like Lyrica.

[189]     However,
some level of injections likely would have been required in any event.

[190]     Dr. Dhawan
notes that prior to the 2007 and 2008 accidents the plaintiff had been
requiring pain killing medications, occasional muscle relaxants, a stretching
program, an exercise program and of course he had been injecting her with Botox
and local anaesthetics and cortisone.

[191]     In my
view, the evidence supports a finding that the plaintiff requires some support,
at least for the nearer term, that is in excess of treatment she sought and
received before December 2008. Considering the evidence as I whole, I find an
award of $4,000 for costs of care related to the December 2008 accident is
reasonable.

XV.         
Non Pecuniary Damages

[192]    
Both parties cited a number of cases for non-pecuniary awards for motor
vehicle accidents resulting is soft tissue injuries. The plaintiff submits the
appropriate range is between $65,000 and $75,000 and relies on the following
cases: Friesen v. Fiddler, 2003 BCSC 1955, [2003] B.C.J. No. 3031
($75,000); Schroeder v. Shaw, 2008 BCSC 1757, [2004] B.C.J. No. 2499:
($75,000); Marois v. Pelech, 2009 BCCA 286, [2009] B.C.J. No. 1420:
($130,000); Demarzo v. Michaud, 2010 BCSC 255, [2010] B.C.J. No. 336:
($85,000); Gignac v. Rozylo, 2010 BCSC 595, [2010] B.C.J. No. 779:
($60,000).

[193]     The defendant’s
submit that the appropriate range is between $25,000 and $35,000. In making
their submission, the following cases were relied on: Basi v. Buttar,
2010 BCSC 9; [2010] B.C.J. No. 15 ($30,000); Ponipal v. McDonagh (Committee
of), 2009 BCSC 461, [2009] B.C.J. No. 675 ($35,000); Boyd v. Shortreed,
2009 BCSC 2133, [2009] B.C.J. No. 2133 ($25,000).

[194]     I assess
non pecuniary damages attributable to the December 1, 2008 accident at $50,000.

XVI.       
Summary

1.       Non pecuniary
damages                                          $50,000.00

2.       Loss of earning
capacity                                          125,000.00

3.       Loss of homemaking
capacity                                      6,000.00

4.       Loss if income (net
to be calculated)                          50,000.00

5.       Cost of care                                                                4,000.00

6.       Special damages                                                         2442.71

TOTAL                                                                            $237,442.71

[195]    
Costs follow the event.

“N.
Brown J.”

Schedule “A” Calculations (for reference only)

Calculations of Annual Loss