IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100809

Docket: S042714

Registry: Vancouver

Between:

Michelle
Marie Danicek

Plaintiff

And

Alexander Holburn
Beaudin & Lang

and
Jeremy Martin Poole

Defendants

And

Rodney’s Oyster
House (Vancouver) Corp., Bar None Enterprises Ltd.

and
Lombard General Insurance Company of Canada

Third
Parties

– and –

Docket: M041927

Registry: 
Vancouver

Between:

Michelle
Marie Danicek

Plaintiff

And

Susan
Shou Yee Li and Pao Fu Li

Defendants

– and –

Docket: S094306

Registry:
Vancouver

Between:

Co-operators
General Insurance Company

Plaintiff

And

Lombard
General Insurance Company of Canada

Defendant

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]            
Michelle Danicek is a lawyer who was involved in two accidents, a fall
in a nightclub late in the evening on April 5 or in the early hours of April 6,
2001, and a motor vehicle accident on June 29, 2002. These accidents led to three
actions which have been consolidated for trial.

[2]            
Action No. S042714 (the “Poole Action”) concerns Ms. Danicek’s claim for
damages from a fall on the dance floor of Bar None. She brought the action
against both Jeremy Poole and the then-employer of the plaintiff and Mr. Poole,
Alexander Holburn Beaudin & Lang (“Alexander Holburn”).

[3]            
There were third party proceedings brought against Rodney’s Oyster House
(Vancouver) Corp., where the plaintiff and Mr. Poole and others dined that
evening, and against Bar None Enterprises Ltd., which operates the nightclub
where the mishap took place. Those third party proceedings have been resolved.

[4]            
Lombard General Insurance Co. of Canada (“Lombard”) is a third party. Lombard
has a policy of insurance covering Alexander Holburn and its employees. The
issue between Mr. Poole and Lombard is whether that policy covers the claim of
Ms. Danicek.

[5]            
The plaintiff reached a settlement with Mr. Poole, a “Mary Carter”
agreement. Mr. Poole has admitted liability and has made a third party
claim against Lombard, the insurer of Mr. Poole’s employer.

[6]            
A Mary Carter agreement takes its name from the first case in which it
was raised, Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. Dist. Ct.
App., 1967). These agreements were described by Ferrier J. in Pettey v. Avis
Car Inc. (1993), 103 D.L.R. (4^th) 298 at 304 (Ont. Gen. Div.), as
having these characteristics:

1.         The
contracting defendant guarantees the plaintiff a certain monetary recovery and
the exposure of that defendant is “capped” at that amount.

2.         The contracting defendant remains in the lawsuit.

3.         The
contracting defendant’s liability is decreased in direct proportion to the
increase in the non-contracting defendant’s liability.

4.         The agreement is kept
secret.

[7]            
This definition was adopted by Huddart J.A. in her dissent in British
Columbia Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177,
224 D.L.R. (4^th) 23, appeal discontinued, [2003] S.C.C.A. No. 240.

[8]            
Although Mr. Poole admitted liability, Lombard has not conceded
that he is at fault.

[9]            
The claim against Alexander Holburn has been settled.

[10]        
The second action (No. M041927) arises from a motor vehicle accident
which occurred on the Lions Gate bridge on June 29, 2002. The plaintiff’s
vehicle was struck from behind by the vehicle owned by the defendant Pao Fu Li
and operated by the defendant Susan Shou Yee Li. Liability is admitted by these
defendants.

[11]        
The third action (No. S094306) concerns a dispute between Co-operators
General Insurance Company and Lombard. The issues between them concern the
interpretation of Lombard’s policy of insurance and the question of whether
Lombard’s policy of insurance applies in the circumstances of this case. These
issues will be determined in the second phase of these proceedings.

[12]        
I will begin by outlining the plaintiff’s history and her circumstances prior
to the accidents which have led to this litigation. I will then describe the
circumstances of the dance accident and the motor vehicle accident, describing
the plaintiff’s complaints subsequent to the accidents. I will then outline the
issues and address them.

The
Plaintiff’s History

[13]        
Ms. Danicek has travelled a long road to become a lawyer. She was
born on December 11, 1968. She lived with her family in Kamloops until she was
ten, when they moved to Langley. She was the youngest of four children. As a
child she was sexually abused by her oldest brother who was five years older. He
died when she was 12 years old. She has never told her family about the abuse.

[14]        
The plaintiff left school when she became pregnant in grade 11. The baby
was placed for adoption. She became pregnant again in grade 12 and married the
father, Will Danicek, and kept the child. Jennifer was born on July 28, 1987.

[15]        
Ms. Danicek returned to school and finished high school through
night classes and correspondence. She accomplished this while maintaining
employment during the day.

[16]        
On August 5, 1991, her second daughter, Amy, was born.

[17]        
Ms. Danicek was married to Mr. Danicek for a total of four years. The
last year of their marriage they lived apart. Ms. Danicek was with
Martin Vanderhoek, Amy’s father, from 1990 to 1993.

[18]        
In 1993, the plaintiff attended Kwantlen College. She transferred to
Simon Fraser University in 1994.

[19]        
Ms. Danicek had a number of jobs over the years preceding her legal
career. She worked at a restaurant and a gas station as a teenager. In 1988,
she began working for Tonkin Inc. This company was engaged in specialty
advertising. Her two years with them included a brief relocation to Toronto. She
discovered that the firm did not suit her.

[20]        
Mr. Danicek then began her own business, called Second Stage Promotions.
It was not a success. She became a sales representative for McBee Business
Systems, selling a one-write accounting system. The plaintiff worked for them
between 1991 and 1993. Her next employer was Travel Canada, which was engaged
in the business of promoting tourist sights.

[21]        
Throughout college and university the plaintiff supported herself in a
variety of ways: student loans; occasional child support; scholarships and
bursaries; and some employment. She worked for a professor doing research at
Simon Fraser. She also did income tax return preparation for individuals and
small businesses.

[22]        
The plaintiff was pursuing a double major in criminology and psychology
at Simon Fraser. She applied to and was accepted by UBC law school in her third
year of undergraduate studies. She enrolled in September 1997. Ms. Danicek
returned to SFU in the summer of 1998 to complete the course work for her
double major.

[23]        
The plaintiff was hired as a summer student by Alexander Holburn between
second and third year, the summer of 1999. She did well and was hired as an
articling student. Ms. Danicek testified that Stuart Lang, a senior
partner, assured her when he offered her an articling position that she would
be kept on as an associate.

[24]        
In January 2000, during Ms. Danicek’s final year of law school, she met
Frank Schober. He is a tax lawyer and partner at Fasken Martineau.

[25]        
After seeing each other for approximately a year, they decided to live
together.

[26]        
Mr. Schober owned and occupied an apartment in a building on Dunbar
Street in Vancouver. Ms. Danicek bought the unit next door. The suites were
remodelled to be one unit.

[27]        
It was only seven to ten days before the dance accident that Ms. Danicek
and her daughters moved in.

The Plaintiff’s Health and Lifestyle Before the Dance Accident

[28]        
Ms. Danicek has always been athletic. She was a soccer player. In high
school she played volleyball, ringette and basketball.

[29]        
Counsel for the plaintiff described her pre-accident lifestyle in these
words:

Prior to her injuries, Michelle
Danicek had an active, busy and rewarding lifestyle. She had achieved success
in her personal life and in her work life. Of significance, she had proven that
she was capable of being a successful working mother.

[30]        
I accept that characterization. Ms. Danicek was an active runner. Her
friend, Kristen Schneider, described her energy level:

She had the most energy I think
out of anybody I know. She is very energetic.

[31]        
The plaintiff testified that she usually ran six days per week, between
three and 12 miles per day. In the six months preceding the dance accident, she
was recuperating from a knee injury and running a bit less than usual.

[32]        
Running was a time consuming activity in a busy life as a mother,
articled student and partner to Frank Schober. However, it was a priority. She
found it was healthy and it relieved stress.

[33]        
Ms. Danicek is a motivated, strong-willed, directed person. Despite the
challenges of being a young mother of two and of having few financial
resources, she was determined to become a lawyer. She accomplished her goal.

[34]        
However, the plaintiff’s pre-accident condition was not free of medical
issues. The plaintiff has some history of headaches. She testified she could
only recall two headaches prior to the accident but medical records go beyond
this.

[35]        
Ms. Danicek testified, and I accept, that she may have suffered four
previous concussions: playing ringette, skiing, a weight-training accident and
a 1992 motor vehicle accident.

[36]        
As a result of these injuries, she may have been predisposed to more
serious impairment and more prolonged recovery than otherwise. That is the view
of both Dr. Hubert Anton, a physiatrist, and Dr. Steven Anderson, a
psychiatrist.

Circumstances of the Dance
Accident

[37]        
The fall took place late in the evening of April 5 or in the early hours
of April 6, 2001. At this time, Ms. Danicek was an articling student at
Alexander Holburn. Approximately three times a year the firm sponsored an “associates’
dinner”. The venue and timing was typically organized by one or more of the
associates. The persons in attendance were associates and articling students. In
addition, a new partner who had recently left the ranks of the associates was often
included.

[38]        
The dinner that night took place at Rodney’s Oyster House in the
Yaletown area of Vancouver. There were approximately 20 associates and students
in attendance.

[39]        
The dinner ended at approximately 10:30 p.m. Several of the persons in
attendance, including the plaintiff and defendant Poole, decided to go to a
nearby night club, Bar None.

[40]        
Alcohol was served at both locations. Both Mr. Poole and Ms. Danicek
consumed alcohol.

[41]        
At approximately 12:30 a.m. Mr. Poole and the plaintiff were both
on the dance floor. Ms. Danicek is 5’4” and weighed about 110 pounds. She
was wearing shoes with a 9 centimetre heel. Mr. Poole is 6’2” and weighed
about 220 pounds at the time.

[42]        
Ms. Danicek does not have any clear recollection of what occurred. Mr. Poole’s
evidence is that he and Ms. Danicek were dancing. He recalls that while
dancing at some point he had his back to her. He thinks she had placed her
hands on his back.

[43]        
Mr. Poole fell backwards. He does not know how he lost his balance
but, he testified, the alcohol he consumed may well have led to this stumbling.

[44]        
Mr. Poole’s fall backwards caused Ms. Danicek to fall
backwards. He landed on her. It is common ground that the plaintiff hit her
head on the floor.

[45]        
Mr. Poole’s explanation in giving his evidence at trial is that his
intoxication was the reason he lost his balance:

Well, My Lord, really what we’re
talking about is, when I look back on it, I tried for myself to find an
explanation for this:  how did this happen; how did I come to fall?  And I
can’t point to any other external cause. I don’t have any recollection of a wet
floor or someone pushing me or somehow otherwise coming off balance. So can I
say definitively I lost my balance because I was intoxicated?  No, but I did
lose my balance, and the only thing that I can point to that’s different than
when I walked into this room, is that that night I was intoxicated.

[46]        
Ms. Danicek appears to have lost consciousness for a short period
of time. Mr. Poole’s evidence is:

Ms. Danicek’s eyes were
closed, My Lord, for a period of time. I can’t recall exactly. A few seconds.

[47]        
Another person in attendance, Chris Hirst, came over and carried Ms. Danicek
to a couch near the front of the bar.

[48]        
Mr. Poole and Mr. Hirst decided they should take Ms. Danicek
to the hospital. The three of them went by taxi to St. Paul’s Hospital. Ms. Danicek
was able to walk with assistance to the taxi and from the taxi to the emergency
area.

[49]        
When they arrived at the hospital, Mr. Poole obtained the telephone
number of Frank Schober, Ms. Danicek’s partner. Ms. Danicek told him
to let Mr. Schober know what happened but to tell Mr. Schober that
there was no need for him to come to the hospital.

[50]        
Mr. Schober confirms that he was awakened by a telephone call from Mr. Poole
and that Mr. Poole repeatedly told him that he was “sorry”.

[51]        
Ms. Danicek was seen by a doctor and then Mr. Poole accompanied her
home in a taxi. He accompanied her from the taxi to the doorway where Mr. Schober
met them. Again, it was Mr. Schober’s evidence that Mr. Poole
apologized repeatedly when he arrived. Mr. Poole did not specifically
recall the repeated apologies but recalls feeling regret over what had
happened.

Liability for the Dance
Accident

[52]        
I conclude that Jeremy Poole is liable for the dance accident. The only
evidence before me is that he fell backwards. He did so because he lost his
balance.

[53]        
Counsel for Lombard argues that the plaintiff has not proved negligence
on Mr. Poole’s part. Counsel argues there was nothing more than an unfortunate
accident on the dance floor. Alternatively, Lombard argues that Ms. Danicek caused
the accident or was contributorily negligent.

[54]        
Counsel for Lombard argues that if anyone is at fault, it is Ms. Danicek.
He points to several circumstances which, when considered together, indicate
there is a more likely or at least equally likely theory: that the plaintiff
was the sole cause of the fall.

[55]        
Mr. Lindsay points to several circumstances. First, Ms. Danicek was not
a regular drinker. She testified that she does not drink at home and restricted
herself to one or two glasses of wine when she went out. Second, Ms. Danicek had
completed the forms of the Law Society of British Columbia for her call and
admission. She therefore had reason to celebrate. Third, not only did Ms.
Danicek attend the dinner, she outlasted the majority of the group. When the
accident occurred, she was one of only three Alexander Holburn persons still at
the bar.

[56]        
This evidence, says Lombard, is consistent with someone out celebrating.

[57]        
In addition to these points, Mr. Lindsay also notes that the plaintiff
was recovering from the effects of a knee injury and was wearing 9 centimetre
heels at the time of the fall. He suggests both of these facts further support
the theory that the plaintiff was the sole cause of the fall.

[58]        
The evidence of Ms. Danicek’s drinking was given by Peter Snell, one of
the associates at Alexander Holburn who attended the dinner. His recollection
of Ms. Danicek’s alcohol consumption was as follows:

…My recollection is that she
had sufficient amount of alcohol that she probably shouldn’t be driving after
that, but she was not slurring speech, she was not intoxicated to the point of
stumbling, or anything like that, just to the level that she probably shouldn’t
be driving.

[59]        
Mr. Snell’s estimate was that she had two to three glasses of wine,
starting from approximately 8:00 p.m.

[60]        
Susan Sangha was also at the dinner. She recalls Ms. Danicek drinking a
glass of white wine. She recalls the plaintiff being more “outgoing and
talkative” than usual. Ms. Sangha testified she assumed this was because Ms.
Danicek had been drinking.

[61]        
Mr. Schober testified that Ms. Danicek was a light drinker. As such she
easily became tipsy.

[62]        
The evidence does not persuade me that Ms. Danicek’s consumption of
alcohol was a factor in the accident. It is nothing more than speculation to
say that she was drinking that evening because she had completed the forms for
the Law Society.

[63]        
Lombard also relies on certain answers Mr. Poole gave in examinations
for discovery. He said in 2007 that it was possible that Ms. Danicek caused him
to fall by placing her hands on his shoulder and pulling him back.

[64]        
The following exchange took place in 2007 when he was being examined by
Mr. Singleton, counsel for Bar None:

Q         And you can’t say you fell because someone
pulled you over?

A          I can’t say that for sure.

Q         I take it there is some suggestion that when
Ms. Danicek put her hands on your shoulder that may have put you off balance
but you can’t recall that?

A          Yeah. I certainly suspect that as being a
possible cause.

Q         Right.

A          But I don’t have – I didn’t make a direct
observation of what her balance was like when she did put her hands on my
shoulders, so I don’t know that for sure.

Q         So she put her hands on your shoulder and you
fell back, and you can’t offer any more definitive explanation for the event
than that. Is that correct?

A          I think that’s
fair to say.

[65]        
Similarly, he gave these responses in an examination for discovery by
Mr. Stanley, counsel for Rodney’s Oyster House:

Q         And do you recall any force from Ms. Danicek
pulling you backwards?

A          I can’t say I specifically recall force, but
as I say, it wasn’t very long after she put her hands on that the two of us
were falling together, fell down.

Q         I mean, it’s possible she might have grabbed
you and pulled you backwards?

A          It is.

[66]        
Mr. Poole gave these answers in discovery, before he admitted liability.
By the time he gave evidence at the trial he had admitted liability. In fact,
it was the plaintiff who called him as a witness. He testified in chief as
follows:

Q         How do you explain, then, that you fell on top
of her onto this dance floor?

A          In simplest
terms, My Lord, I lost my balance and fell, and she happened to be right there
when I fell.

[67]        
Mr. Poole attributed his actions to his alcohol consumption. This was
not what he said in the course of examinations for discovery. Mr. Singleton,
counsel for Bar None, asked him:

Q         You can’t say you fell because you had too
much to drink?

A          No.

[68]        
Similarly, Mr. Stanley, counsel for Rodney’s Oyster House, and Mr. Poole
had this exchange:

Q         And you don’t believe you fell because you
lost your balance due to alcohol consumption?

A          No, I don’t. Well,
I don’t believe that.

[69]        
However, by the time of the trial, his evidence was different:

Q         So your view in February of 2007 was that the
alcohol you’d consumed on April 5^th did not cause you to lose your
balance and fall on Ms. Danicek; correct?

A          That’s what I testified then; that’s correct.

Q         And now approximately three years later you
believe otherwise?

A          Well, My Lord,
really what we are talking about is, when I look back on it, I tried for myself
to find an explanation for this; how did this happen; how did I come to fall?
And I can’t point to any other external cause. I don’t have any recollection of
a wet floor or someone pushing me or somehow otherwise coming off balance. So
can I say definitively I lost my balance because I was intoxicated?  No, but I
did lose my balance, and the only thing I can point to that’s different than
when I walked into this room, is that that night I was intoxicated.

[70]        
Counsel for Lombard urges me to disregard this evidence. It is not
consistent with what Mr. Poole said in discovery. It is therefore unreliable. Lombard
argues that a term of the plaintiff’s settlement with Mr. Poole is that Mr.
Poole admit liability. One can only speculate, Lombard says, why his evidence
has changed.

[71]        
I am somewhat troubled by the inconsistencies between what Mr. Poole
said in examination for discovery in 2007 and what his evidence is at the trial.
However, I think counsel for the plaintiff put it well as providing the most
reasonable explanation:

While Poole prior to his
agreement to the plaintiff was exposed to a large claim/judgment, following
that agreement, he was no longer under any pressure to avoid admitting that the
accident was his fault. As such, there is no reason to think that his evidence
given at trial is anything but accurate and reliable.

[72]        
I agree. There is no reason for Mr. Poole to be anything but forthright
in giving his evidence at the trial. I do not accept that the Mary Carter
agreement has led him to improperly change his story or provide inaccurate
evidence at trial.

[73]        
Counsel for the plaintiff said this in his written submission:

[31]      Michelle did not fall on her own and it was a near
physical impossibility for her with her hands on Jeremy Poole’s back/shoulders
to somehow pull him over and it was a near physical impossibility for her to
pull him over with Michelle ending up directly underneath him with her jaw in
the middle of his back.

[32]      The only reasonable
explanation for why Michelle Danicek fell and was injured in the dance accident
is that Jeremy Poole fell and essentially took her down with him. This explains
how she ended up on the floor directly under Poole, and how she was so badly
hurt. The fact that she ended up lying on the dance floor with Jeremy Poole on
top of her and with her head and jaw between his shoulder blades can only be
explained with Jeremy Poole, as he described, falling backwards and taking her
down with him. Jeremy Poole’s repeated apologies and explanation that he fell
on Michelle and the phone call from the hospital and again when they delivered
Michelle home is totally consistent with his being responsible for the Dance
Accident.

[74]        
I agree with that submission. I accept that, as Mr. Lindsay argues, an
apology does not constitute an admission of liability. Pursuant to section 2(2)
of the Apology Act, S.B.C. 2006, c. 19, evidence of an apology made by
or on behalf of a person in connection with any matter is not admissible as
evidence of the fault or liability of the person in connection with that
matter.

[75]        
However, and without considering the apologies, on all the evidence I
find that Mr. Poole breached the duty of care he owed to Ms. Danicek in
consuming alcohol to the extent that his impairment caused him to lose his
balance and fall on top of the plaintiff.

[76]        
I find it more likely than not that Mr. Poole’s impairment caused him to
lose his balance. I do not accept that he merely slipped or that Ms. Danicek
pulled him down. I conclude that Mr. Poole’s actions did not meet the standard
of care of a reasonable person. I further find that this breach of duty was the
cause of the accident and the associated injuries suffered by the plaintiff,
which are described in detail below.

[77]        
I am satisfied on all the evidence that the accident was due to the
negligence of Mr. Poole and that Ms. Danicek did nothing to contribute to the
cause of the fall.

The Plaintiff’s
Condition After the Dance Accident

[78]        
The accident happened on a Thursday night. Ms. Danicek stayed home on
the Friday. She went to a walk-in clinic on the weekend.

[79]        
Mr. Schober testified that he was away on the weekend. When he arrived
home on Sunday, he found Ms. Danicek “very groggy and very dazed” with a
“horrible” headache.

[80]        
On Monday morning he was surprised that she was getting dressed for work.
Although he expressed the view that she was not fit, Ms. Danicek was insistent.

[81]        
Ms. Danicek went to work. She testified that a number of her colleagues
stopped by to talk to her about what occurred. Someone (she does not recall
who) told her she was not fit to work. She went home.

[82]        
The following day she woke up feeling “terrible” and went off to work
again. She met with a lawyer in the business department, Sharon Urquhart. After
meeting for a few minutes, Ms. Urquhart told her she wasn’t making sense and
ought to go home. She did so.

[83]        
The following day, Wednesday, Ms. Danicek again felt terrible and again
went to work. She testified she realized she was not able to work. She spoke to
a senior associate, Peter Snell, who told her to take some time off. He also
took her to Eileen Vanderburgh, the lawyer in charge of associates. Ms. Vanderburgh
called in the managing partner, Bruno De Vita. They told her to take some time
off. They also told her about the firm’s disability plan.

[84]        
Ms. Vanderburgh testified Ms. Danicek said she was suffering from a very
severe headache and that is why she advised her to go home.

[85]        
The headache pain persisted. Ms. Danicek said she tried jogging in the
first days of her leave and could not even go a block because of the pain. She
then realized that rest was what was necessary.

[86]        
Some four weeks later, Ms. Danicek saw a neurologist, Brian Hunt. Dr.
Hunt arranged for an MRI and referred her to the Thorson Pain Clinic.

[87]        
Ms. Danicek described her symptoms in these first few weeks as including
nausea with vomiting, and dizziness. She also noticed cognitive deficits: she
could not think of nouns; she would enter a room and not recall why she was
there; and her handwriting was illegible. She was sensitive to noise and light.
She said the headaches were worse when she exerted herself.

[88]        
Ms. Danicek’s daughter, Amy, described her mother in the eight month
period after the dance accident. She said her mother spent most of the time in
her room. She testified her mother was sensitive to noise. It even became
necessary to get rid of the family cat because it meowed a lot.

[89]        
Amy Danicek said she seldom sought her mother’s help with homework. She
knew that anything requiring concentration would worsen her mother’s headache. She
sought help from Mr. Schober instead.

[90]        
Ms. Danicek spoke to Dr. Hunt in October 2001. He approved of her wish
to return to work. However, she had a set-back and did not return to work, in
fact, until December.

[91]        
The return to work in mid-December 2001 was in Ms. Danicek’s words “a
big mistake”. She had bad headaches. According to Mr. Schober, for the first
two to three weeks she came home with very bad headaches most evenings. She
typically came home, had something to eat and went to bed.

[92]        
Ms. Danicek was anxious to return to work in order to be called to the
bar. She believed, perhaps mistakenly, that the Law Society would not extend
her call date further.

[93]        
She and Mr. Schober decided it was not a good idea to go on leave again.
They felt it would be bad for her career. Instead, she decided to make the best
of it. Ms. Danicek kept working, even though she found it difficult to focus
and to figure out solutions to problems. She felt she had a cognitive deficit.

[94]        
Ms. Danicek coped at work by taking an excessive amount of Advil. She
took as many as 30 pills in a day, far in excess of the recommended dosage.

[95]        
Amy Danicek gave evidence about the period between the plaintiff’s return
to work and her leaving the firm in 2004. She testified that after her mother
returned to work, she still did not see much of the plaintiff:

She would go to work then come
home and go right into her room after.

[96]        
In April 2002, she and Mr. Schober decided to take seven to ten days off
and play golf in Arizona. She testified she felt much better during this trip,
even better than she had felt in December 2001, before she returned to work. Ms.
Danicek felt at the time that it was a clear indication she was on the road to
recovery.

[97]        
These feelings were short-lived. As soon as she was back at work, her
headache level reverted to what it had been.

[98]        
Ms. Danicek went on to say, however, from the end of April on, her “good
days were better”, and her “bad days weren’t as bad”.

[99]        
In May 2002, she had a meeting with Eileen Vanderburgh who was in charge
of associates. Ms. Danicek confided to Ms. Vanderburgh that she was still
having problems with headaches. She did not mention this improvement.

[100]     Whether or
not Ms. Danicek was in fact on a trajectory of improvement immediately before
the motor vehicle accident is a central question of fact to be determined in
the Li action.

Circumstances of the Motor
Vehicle Accident

[101]     The motor
vehicle accident occurred on June 29, 2002, on the Lions Gate bridge between
Vancouver and North Vancouver. Ms. Danicek was driving north, on her way
to join Mr. Schober at Whistler, some 120 kilometres from Vancouver. She was
driving an Audi sedan.

[102]     Ms. Danicek
is the only person who gave evidence about the accident. It happened in the
daytime. The Lions Gate bridge is a three-lane bridge. The middle or
counterflow lane is north or southbound depending on the traffic flow. It is
controlled by overhead signals.

[103]     The
plaintiff was headed north in the counterflow lane. The overhead signal
indicated she should pull into the right lane so she did so. She testified she
was travelling between 80 and 90 kilometres per hour at the time.

[104]     Traffic in
front of her came to a stop. She braked and stopped. In her rear view mirror
she saw a van right behind her swerve into the middle lane to avoid her. Then a
Honda, driven by the defendant, was behind the van. The Honda struck Ms. Danicek’s
vehicle.

[105]    
Ms. Danicek described the impact:

It was a hard hit. I was driving
Frank’s car, which was an Audi A6. He had those split seats in the back. They
were up when I was driving, and the force of the impact made the seats come
down and the contents of the trunk flew through the car. When I – when the
crash was over, there was a golf club in the passenger’s seat of the car.

[106]     Both cars
were driveable. The damage to the Honda was more extensive. As it happened,
Ms. Li was on her way to Whistler as well. She left her vehicle by the
maintenance shed at the north end of the bridge and the plaintiff drove her to
Whistler.

After the Motor Vehicle
Accident

[107]     Ms.
Danicek testified that when she got to Whistler, she and Mr. Schober went out
for dinner. She took some Advil before doing so. She did not feel especially
bad.

[108]    
The next morning when she awoke, she testified she felt like she “had
been hit by a car”:

My head hurt so bad. My headache
to be specific. My neck hurt.

[109]    
The plaintiff was then asked to compare the headaches with the bad
headaches she had been having in the weeks leading up to that time. She
responded:

They were just different. They
were so much more than they had been. They were more on par with how I felt
after — right after the dance accident. They were back to that kind of level.

[110]     This
testimony is difficult to accept. After the dance accident, the plaintiff was
essentially bedridden. She was absent from work for eight months.

[111]     After the
motor vehicle accident, on the other hand, Ms. Danicek kept working. She took
no time off. Her recorded hours in the month of July 2002 were 184.6. This was
her highest recorded hours for the entire year. It was 50 more hours than in
June.

[112]     The
plaintiff testified that there are four types of headaches she is able to
distinguish. The first is an interior pressure, where she feels her head will
“explode”. The second is a “frontal” headache. The plaintiff testified that
this is related to concentration.

[113]     The third
radiates up her back and neck. It feels like “ropes”. She noticed this type of
headache after the motor vehicle accident.

[114]     The fourth
type of headache comes from the base of her skull and radiates up her head.

[115]     Ms.
Danicek said she coped at work with the help of chiropractic treatments and
massage. She continued taking excessive amounts of Advil.

[116]    
Ms. Danicek’s testimony about headaches after the motor vehicle accident
appears inconsistent with what she described to an ICBC adjuster on July 25,
2002. In the statement she described the circumstances of the accident. She
went on to describe her symptoms:

The next day I noticed that my
neck was stiff and achy. I thought I was going to be fine so I didn’t see a
doctor right away. The problem was getting worse and not better so I went to
Dr. Mallory, my chiropractor, soon after. Dr. Mallory sent me to see Kim Kirk,
a massage therapist. I also went to the Royal Centre Medical and saw a GP. I am
going for massage therapy one time per week and I am going to see Dr. Mallory
one time per week. I was injured in 1990. I had a rotated sacrum. It took me
about five years to recover. Some days my neck is bothering me to the point
where I can’t work full days. I am taking Advil for pain relief.

[117]     It is
significant to me that Ms. Danicek made no mention of headaches in this
statement.

[118]    
Ms. Danicek was asked in cross-examination why she did not tell ICBC
about the debilitating headaches she had been suffering. She gave two reasons:
first, that Mr. Mawhinney (of ICBC) “didn’t ask me”. The second was at the time
she “didn’t really think anything was going to come of this whatsoever”. She
went on:

At that point in time, to me, I’m
not considering litigation or anything like that. I’m not considering making a
claim of any sort other than getting my car fixed.

[119]     With
respect, this seems entirely inconsistent with the evidence of Ms. Danicek and
Mr. Schober that in the four weeks between the motor vehicle accident and the
meeting with ICBC, she had suffered terrible headaches which she attributes to
the accident. It seems consistent, on the other hand, with the defendants’
assertion that she did not suffer a serious injury in the motor vehicle
accident.

[120]     Similarly,
Dr. P.S. Lejay is the physician who saw Ms. Danicek on July 23, 2002. In a
report form provided to ICBC, Dr. Lejay reports a soft tissue injury with a
two-day partial disability. There is no mention of headaches. Dr. Lejay’s
treatment plan is “home stretches” and “Ibuprofen PRN”.

[121]     Ms.
Danicek’s evidence is that she continued to have headaches following the motor
vehicle accident. She took a lot of Advil. She did not take any time off work.

[122]     Ms.
Danicek was able to continue working despite this pain. She, in fact, did quite
well. She was well-regarded in the firm and was on the road to partnership.

[123]     Ms.
Danicek saw Dr. Beckman in 2003. Ms. Danicek testified that she and Dr. Beckman
discussed the motor vehicle accident. She says that he told her the motor
vehicle accident likely caused a concussion and it can take two years from that
concussion before recovery can be expected.

[124]    
I find Ms. Danicek is mistaken in her recollection that she discussed
the motor vehicle accident with Dr. Beckman. There is no mention of the motor
vehicle accident in his report. He testified that it did not arise. Moreover,
there was the following exchange in cross-examination:

Q         Is it possible, Doctor, that the motor vehicle
accident was only raised in the last few minutes of the appointment when you
are saying to the patient here’s my plan for you? Is that possible?

A          Unlikely.

Q         But possible?

A          I don’t know.

Q         Do you really recall the discussion with Ms.
Danicek?

A          I don’t. I really
don’t.

[125]     Dr. Beckman
went on to say it was possible that he said that but he also said that there
can be recovery from a concussion after three or four or even five years from
the accident. I conclude that the conversation described by Ms. Danicek did not
take place.

[126]    
Counsel for the Lis urges me to conclude that the injuries Ms. Danicek
suffered in the motor vehicle accident were limited to no more than a sore neck.
Ms. Danicek testified that when she gave the statement to ICBC she had no
intention of making a claim for injuries arising from the motor vehicle
accident. This seems inconsistent, of course, with her evidence and that of Mr.
Schober that there were several weeks of terrible headaches after the motor
vehicle accident. Moreover, it is noteworthy that the statement of claim in the
Li matter provides:

8.         As a result of the Collision, the Plaintiff has
sustained personal injuries, including the following:

(a)        traumatic brain injury; and

(b)        soft tissue injuries to the
neck, shoulders and back.

9.         As a result of the
said injuries, the plaintiff has suffered and continues to suffer pain as a
result of those injuries causing a loss of enjoyment of the amenities of life.

[127]    
In the Alexander Holburn action, on the other hand, there is an express
mention of headaches:

7.         As a result of the collision [sic] the plaintiff
has suffered and continues to suffer personal injuries including:

(a)        whiplash;

(b)        head and brain injury;

(c)        neck injury;

(d)        headaches;

(e)        short and long-term memory loss;

(f)         imbalance;

(g)        hypersensitivity to noise and light;

(h)        concentration problems;

(i)         temporary ringing in the ears;

(j)         cognitive dysfunction;

(k)        nausea;

(l)         shock, stress and anxiety;

(m)       bruising and contusions;

(n)        severe emotional upset; and

(o)        such other injuries as will be
advised by plaintiff’s counsel.

8.         As a result of the
said injuries, the plaintiff has suffered and continues to suffer pain,
discomfort and inconvenience, permanent partial disability, loss of enjoyment
of life and loss of amenities.

[128]     In late
March 2003, Ms. Danicek initiated the action against Alexander Holburn. She was
still employed by the firm as an associate. She was anxious to protect her
claim from limitation dates yet did not want to publicize the writ. She
therefore commenced the action in the Vernon registry. Alexander Holburn did
not learn of the action until service of the writ nearly twelve months later.

[129]     Dr.
Mallory saw Ms. Danicek at his office on April 10, 2003. He noted that she was
uncomfortable and having difficulty. He suggested to her that she should look
at her disability plan to see whether she could take some time to heal.

[130]     Ms.
Danicek testified that by early 2004, work was becoming more and more difficult.
The headaches were worsening and she was increasing her intake of Advil. She
was spending a lot of time at her desk and therefore not with her partner Frank
Schober or with her daughters. She testified that she felt overwhelmed.

[131]    
Mr. Schober described the period between the motor vehicle accident and
Ms. Danicek leaving the firm in March 2004:

Well, that entire year and a half
or so between after the car accident and the time that she took her second
leave, the first three or four weeks were absolutely brutal, as I said, but
after that her sole objective was to get through her work day. So she would
work, and she had to work longer hours, because she felt she wasn’t as
efficient at work and losing her concentration and couldn’t focus. But she – so
she would work long hours, and then she would come home late every night and
would just be in no condition virtually every single night to do anything. Couldn’t
really carry on much of a conversation, anything. The girls would know, would
stay away from her or whatever. Many times she wouldn’t even eat, as we talked
about before, and many times she would just come home in her work clothes and
fall on the bed and go to sleep. And I on more than five or six occasions took
off some of her clothes so that I could take off and cover her blankets to go
to sleep, and she would sleep all the way until the morning. So she would come
home just exhausted in bed – say – you know, mumble some words to us and say,
I’ve got to go to sleep, and just go to sleep. And her focus was trying to get
through the work day. She needed then to fall asleep to get up for the next
work day. This was a process that went on – you know, as I say, it went up and
down. There were some better periods than other periods, but for the that
entire year and a half as she stuck it out at work, this was happening
virtually every night at work.

[132]    
A different picture of this year and one-half between the car accident
and her leaving the firm emerges from the evidence of the law firm. An
evaluation in May 2002, not long before the accident, was very good. Positive
comments from members of the firm included:

·       
Well above average for a first year call

·       
Has my confidence on major clients/issues

·       
Shows good learning curve

·       
Good ability to meet deadlines when multiple projects converge

·       
Shows good independence but also knows when to come for help

·      
Is already on a client development program and has brought in
work unrelated to her practice.

[133]    
There were also criticisms:

·       
Sometimes too in-depth and over analysis

·       
Will need to develop better judgment on extent to which she
devotes resources to an issue

·       
Like all young associates, some time written off due to
learning/inefficiency.

[134]    
The May 2003 evaluation does not seem to have been any less positive. It
contains these comments:

·       
Has learned well how to utilize staff

·       
Still young – shows appropriate progress on the learning curve

·       
Handles clients very well

·       
Able to work well with minimum of instructions.

Again, there were
suggestions for improvement:

·       
Appears to be some write-offs due to extensive efforts/time
associated with producing final work product.

[135]     Both
evaluations are very positive overall. They indicate Ms. Danicek was highly
regarded by the firm. There is no mention of difficulties which have been
occasioned by either the dance incident or the 2002 motor vehicle accident.

[136]     Bob Pakrul
is a partner at Alexander Holburn. He testified that he met the plaintiff
during her articles but did not have much contact with her until her call.

[137]    
After her return to work, he came to work extensively with her. He was
positive about her:

I found Michelle to be bright and
intelligent. She was quick on the uptake. She had very good people skills, was
very good at interacting with clients. She was very enthusiastic about the
practice of law and about building a law practice and was enthusiastic about
engaging in the marketing aspects of the law practice.

[138]    
He described her work ethic in these terms:

Her work ethic was very good. She
was willing to work hard. Work late when required. There was always a
willingness to take on projects.

[139]    
Mr. Pakrul also noted she had above average marketing ability.

[140]    
He was asked whether he noticed she was having health problems or
medical problems:

I would observe from time to time
that on a particular day she would appear to be off, and what I mean by that is
that she would appear to have trouble focussing or concentrating. We would be
sitting, perhaps in my office, talking about a file, and I would notice her
squinting. I would get the sense that she wasn’t succeeding in focussing or
concentrating on what the matter was that we were discussing at that point.

[141]     Mr. Pakrul
recalls having lunch with Ms. Danicek several months before she eventually left.
She indicated her difficulty with headaches and said she was considering
leaving the firm. He encouraged her to stay, telling her that she had a very
bright future in the practice of law and that she had the potential to excel as
a business lawyer and a marketer. Ms. Danicek’s recollection is that this lunch
took place in the spring of 2003.

[142]     It is
noteworthy to me that when describing the plaintiff’s performance at work, Mr.
Pakrul does not make any distinction between the period before the motor
vehicle accident and after.

[143]     Loren
Mallett met Ms. Danicek in law school and was a year ahead of her at the firm. He
described her before the accident as “smart, articulate, poised”, someone with
a lot of charisma.

[144]     During the
period from April to December 2001, when she was off work, he kept in contact
with her.

[145]     When she
returned, Mr. Mallett testified, both of them were actively engaged in
marketing. They developed relationships with officers of a banking client. The
theory was that the bank’s customers were good potential clients.

[146]     Mr.
Mallett described the plaintiff in a social milieu as “very good at working the
room”. As he put it, “People wanted to know her. She had a talent.”  He said
that in the course of 2002, he and Ms. Danicek “wined and dined” virtually
every loans officer of the bank in the lower mainland. His evidence is that Ms.
Danicek’s marketing efforts were often successful. She brought in work that was
above her level of expertise and was passed on to a senior lawyer.

[147]     Mr.
Mallett said that he was aware that Ms. Danicek suffered from headaches. He
said that if he needed Advil, he knew that she had plenty of it. Mr. Mallett
said that Ms. Danicek told him that she was leaving because she was unable to
work. He was taken by surprise. Mr. Mallett testified that he spoke to Ms.
Danicek “virtually every day”. He felt she “seemed to be struggling with
headaches but managing”. He noticed no difficulty with memory and did not see
her searching for words. In re-examination, he testified that after she left
the firm, he examined a finalized agreement the plaintiff had drafted, which he
wanted to use as a precedent. He found that it was not well drafted.

[148]     It is
significant to me that throughout the period from the motor vehicle accident
until she left in March 2004, the plaintiff never mentioned the motor vehicle
accident to Mr. Mallett. He only learned of it much later.

[149]     Mr.
Mallett said the firm was “exceptionally supportive” of employees with health
or personal problems. When a person takes leave for such purposes, the position
is kept for the person. Mr. Mallett himself worked reduced hours from the
summer of 2002 until the end of 2003.

[150]     By March,
2004, the plaintiff testified “the headaches were getting worse and worse”. She
decided to leave the firm but described it as “one of the hardest decisions”
she had ever made. She was influenced by her family physician, Dr. Mendelson,
who had told her that he thought she would not get better.

[151]     Mr.
Schober corroborated this. He said Ms. Danicek’s health was no better and that
the prognosis was that the headaches would not improve. He agreed with her
decision.

[152]     The writ
in the first action had to be served at this time. Thus, the firm would learn
of the action for the first time. Ms. Danicek did not leave for that reason. Rather,
she had hoped that she would recover and not have to maintain the action. Thus,
her counsel argues, the need to serve the writ was not the reason she left the
job. Rather, serving the writ was a consequence of her inability to continue.

[153]     Mr. Pakrul
testified that he was disappointed but not surprised by her decision. They had
earlier discussions about her ability to continue.

[154]     Ms.
Danicek left the firm on disability leave. She remained an employee of the firm.
Her employment was only terminated in the course of the trial.

The Medical Evidence

[155]     Ms.
Danicek has been examined by a large number of specialists – physiatrists,
neurologists, psychiatrists and others.

[156]    
The fact that many physicians agree on Ms. Danicek’s diagnosis and
prognosis does not necessarily simplify the task of the court. Headache
symptoms are inherently subjective and based on self-reporting. In Fan v.
Chana, 2009 BCSC 1127 at para. 73, McEwan J. stated:

… As courts have observed on
any number of occasions, the approach taken by medical professionals is not
forensic: they assume that the patient is accurately reporting to them and then
set about a diagnosis that plausibly fits the pattern of the complaint. In the
absence of objective signs of injury, the court’s reliance on the medical
profession must, however, proceed from the facts it finds, and must seek
congruence between those facts and the advice offered by the medical witnesses
as to the possible medical consequences and the potential duration of the
injuries.

[157]     The
defendants and Lombard take issue with the plaintiff’s credibility. The
opinions and diagnosis are based on what Ms. Danicek told the experts. Moreover,
the relationship between the injuries and the motor vehicle accident is very
much in issue.

[158]    
Dr. Thomas Kay is a neuro-psychologist. In the third of his three
reports, he prepared a useful summary of his conclusions and the consensus
emerging from five other reports:

There is general consensus that despite childhood trauma and
other stressors, Ms. Danicek was working successfully as an attorney prior to
her 2001 fall. There is general consensus that she suffered an “uncomplicated”
mild traumatic brain injury in her 2001 fall, and that this evolved into a
post-concussion syndrome, which involved symptoms of headache, subjective
balance problems and sensory overload, and cognitive problems. There is general
consensus that headache was the primary debilitating symptom…

There is general consensus that Ms. Danicek continued to
work, despite growing interference from her headache, and in part this was due
to medical advice. There is agreement that the stress of working with the
headache eventually took a sufficient toll that Ms. Danicek quit her job.

There is a general consensus that Ms. Danicek is not capable
of working given her current condition, and that persistent, recurring,
debilitating headaches are at the core of her inability to function. There
appears to be consensus that treatments to this point have not been effective,
and a number of persons have recommended different approaches to treatment
which might be helpful. There is also a consensus that Ms. Danicek came into
the two injuries with a vulnerability to develop psychological and somatic
symptoms. These vulnerabilities included a perfectionistic and driven
personality style which would be highly reactive to loss of control (over
physical symptoms, ability to function), childhood stressors, a history of some
anxiety and depression, and being in a tentative, only partially committed
relationship.

Few evaluators were additionally
aware of a history of childhood sexual abuse which increases Ms. Danicek’s
vulnerability to adult trauma at an emotional level.

[159]    
Dr. Hubert Anton, a physiatrist, said in his November 22, 2004 report:

Ms. Danicek’s history indicated she suffered a mild traumatic
brain injury (or, using a different but analogous terminology, cerebral
concussion) in the accident of April 5, 2001.

It is possible that Ms. Danicek
could also have suffered an injury to the cervical spine in the fall, through a
whiplash mechanism related to flexion and extension with axial of the cervical
spine.

[160]    
Dr. Steven Anderson, a psychiatrist, reported on January 26, 2007:

Ms. Michelle Danicek is a 38
year-old woman who was injured in accidents which occurred on April 5^th,
2001 and June 16^th [sic] 2002. As a result of the accidents Ms.
Danicek developed physical, cognitive and emotional difficulties. The April 5^th,
2001 incident likely caused a mild traumatic brain injury (MTBI) with ongoing
post-concussive symptoms.

[161]    
Dr. Paul Janke is a psychiatrist who was called by Lombard. His report
of October 21, 2008 includes the following:

It is my opinion that based on
the information provided to me both through Ms. Danicek and in review of the
materials that Ms. Danicek suffered at most a mild traumatic brain injury in
the slip and fall of April 5, 2001. She would be expected to experience full
recovery and in fact by her report that was occurring prior to the June 29,
2002 motor vehicle accident.

[162]    
The only expert who believes Ms. Danicek suffered a concussion in the
motor vehicle accident is Dr. Brian Hunt, a neurologist:

It is this writer’s opinion that
Ms. Danicek suffered another cerebral concussion at the time of the motor
vehicle accident of June 16, 2002 [sic] despite the fact that she denies being
knocked unconscious.

[163]    
He said in cross-examination:

I have no way of explaining other
than she suffered another cerebral concussion to explain the significant change
in her clinical situation where she didn’t – she had been recovering, and then
after the motor vehicle accident, she got into increasing difficulties. And if
we are talking about whiplash, we’re describing muscle ligamentus injuries of
the spine likely with impulse to the brain. The fascinating part about this
case is that her headaches are far out – and are far greater and much more of a
debilitating thing than any difficulties that I have identified in her cervical
spine. And so it – all I can say is that others have said she hasn’t had a
concussion. I stand by my opinion that she suffered a mild – another mild
traumatic brain injury in the second motor vehicle accident. And after this
length of time it really makes little difference because she has been having
such difficulties anyway.

[164]     Drs. Anton
and Anderson conclude that Ms. Danicek’s symptoms satisfy the criteria for
chronic pain disorder.

[165]     Lombard
argues that the medical evidence is of marginal assistance because the opinions
are based on what the plaintiff told the doctors. Many of the physicians were
not aware of the plaintiff’s history of headaches prior to the dance floor
incident.

[166]     Counsel
for Lombard relies on the report of Dr. Janke. Counsel argues that he was the
only expert to give evidence who had reviewed all of the pre and post-accident
medical, psychiatric and chiropractic records. He states that Ms. Danicek’s
complaints are subjective in nature and his evaluation of her is dependent on
the reliability of the information. He notes in his report of October 21, 2008,
that the plaintiff’s ability to work as a lawyer until 2004 is inconsistent
with the presence of severe and disabling chronic headaches.

[167]    
Dr. Janke testified:

Well, one of the impacts of
chronic pain, but certainly headaches in particular, is it interferes with our
ability to pay attention, focus and concentrate, which strikes to the heart of
the ability to, you know, review documentation, to prepare documentation, to
simply – well to simply read is going to be difficult in the context of a
severe headache. To read, retain, compare, synthesize and produce is, in my
opinion, extremely unlikely in the presence of a severe headache.

Credibility of the
Plaintiff

[168]     The
plaintiff alleges in both the Poole and Li action that she is totally disabled.
Her symptoms are almost entirely subjective. The extent of her injuries is very
much in dispute. Counsel for the defendants in the Li action and counsel for
Lombard in the Poole action have put the credibility of the plaintiff in issue.
As noted above, the utility of the expert evidence is directly related to the
reliability of the plaintiff’s self-reporting of her symptoms.

[169]     I have
major difficulties with certain aspects of the plaintiff’s evidence. I must
conclude that she is not a reliable reporter of her symptoms.

[170]     Ms.
Danicek has been examined for discovery by various defendants and third parties
on some 11 occasions over a period of several years. This litigation has been
protracted.

[171]     In these
circumstances it is understandable that the plaintiff made errors of
recollection or that she confused one year for another. Ms. Danicek is very
intelligent but she is human. She can make and has made errors in giving
evidence.

[172]     But on
some occasions her answers on discovery or in cross-examination go beyond error.

[173]     Ms.
Danicek, to state the obvious, has a significant stake in the outcome of these
proceedings. She is shrewd. She is anxious to put her case in the best possible
light.

[174]     At times,
I conclude, this has caused her to tailor her evidence to her own advantage. This
may be unconscious but several incidents of this tendency when considered
together lead me to conclude that there are sharp limits to the reliability of
her evidence.

[175]     First is
her evidence relating to an issue which will arise in the second phase of the
trial. That is whether the events at Bar None, where the accident occurred,
were related to her employment. A very similar question was in issue previously
when the Workers’ Compensation Appeal Tribunal (“WCAT”), was considering
whether the accident arose from employment.

[176]    
In cross-examination at the trial Ms. Danicek said the law firm had an
expectation that she attend not only the dinner at Rodney’s Oyster House but
also the nightclub afterwards:

Q         So the expectation on behalf of the firm was
that you would attend Bar None on the evening of April the 5^th?

A          Yes I think I
would agree with that.

[177]    
This answer is to be contrasted with the answers she provided at
discovery, at a time when the issue of employment was before the WCAT:

Well I think I felt there was something of an expectation,
but of course you’re free to go and not go and nothing is going to happen if
you don’t go, so it’s not like anybody’s forcing you to go.

Q.        Is it your understanding that when you went
out to one of these firm dinners and you went out for drinks afterwards, that
it was basically the night was on the firm, as it says in the memo?

A          Quite the opposite it was my understanding
dinner was on the firm and you were on your own at the bar.

Q         Ms. Danicek I am going to ask you whether or
not you agree with this proposition that I am going to suggest to you, that if
you’re dancing in April 2001, if you were dancing at 12:15 in the morning, you
were doing that solely because you want to be there, and you’re doing it
voluntarily, and you’re doing it at a time when you’re completely responsible
for your own actions do you agree with that?

A          For the most
part, yes.

[178]     The second
example is her evidence about some forms that were completed when she made her
first visit to the office of a chiropractor, Dr. Brenda McRoberts-Grantham in
1998. On the patient history form, which the patient usually completes, Ms.
Danicek appears to have placed a check beside “frequent headaches” indicating
her history. She maintained in cross-examination that someone else must have
completed the form. She suggested Dr. McRoberts-Grantham had changed the form. She
explained that the tick was not how she made a check mark.

[179]     I do not
accept that evidence for two reasons. First, Dr. McRoberts-Grantham testified,
and I accept that she has patients use a different colour of ink. Dr.
McRoberts-Grantham was able to say and I accept that it was Ms. Danicek that
completed the form.

[180]     Second,
Ms. Danicek was shown a checklist which she completed in 2001 for the Law
Society. This is a form where the candidate places a check beside topics which
have been covered in her articles. The check that Ms. Danicek made on the form
is clearly the same style that she denied using on Dr. McRoberts-Grantham’s
patient history form.

[181]     The third
contradiction is related to the employment issue before the WCAT, and concerns questions
put to Ms. Danicek as to whether the dinner at Rodney’s Oyster House and the
later attendance at Bar None constituted one continuous event.

[182]    
On October 3, 2006, Ms. Danicek was examined for discovery by Mr.
Singleton. She said the attendance at Bar None was a continuation of what began
at Rodney’s Oyster House. She was asked about what the amended statement of
claim said at the time:

The associates’ party began at
Rodney’s Oyster House Restaurant with dinner and drinks and then moved into the
Bar None night club in Vancouver.

[183]    
In the examination for discovery this pleading was read to Ms. Danicek. She
was then asked:

Q         I don’t know if you have any recollection of
this, but was it your understanding at the time that when you were at Bar None,
it was a continuation of the same function, so to speak?

A          Generally, yes.

[184]    
A further discovery took place on June 7, 2007. By then there was an
issue at the Workers’ Compensation Board. There was a chance that the action
would be statute barred if the injury arose out of employment. This exchange
took place:

Q         I just want to read to you what the allegation
in paragraph four is in your amended statement of claim. Is says:

On or about April 5, 2001, the
defendant Alexander Holburn hosted and paid for a party for associates and
articled students at the firm (the “Associates’ Party”) with all associates and
articled students encouraged to attend. The Associates’ Party began at Rodney’s
Oyster Bar Restaurant with dinner and drinks and then moved into the Bar None
night club. All in Vancouver.

Do you see that?

A          Yes.

Q         And that’s true?

A          Well,
I don’t know, it seems to suggest that the associates’ party was at both the
Oyster Bar and Bar None, and I don’t think that’s true.

Q         Let’s
break it down a little bit. It’s true that associates and articling students
were encouraged to attend?

A          Yeah.

Q         And then the party started at
Rodney’s Oyster Bar?

[185]    
Ms. Danicek’s counsel at the discovery then interjected:

One thing, counsel, I just
noticed that that pleading probably needs revision. I don’t think that’s
accurate, so I will revise it as necessary. Because I believe the evidence of
Alexander Holburn was that the associates’ party was restricted to Rodney’s
Oyster Bar, so I’ll change it accordingly and amend a further amended statement
of claim, just so there’s no misunderstanding.

[186]    
The statement of claim was indeed amended. It now states:

4.         On or about April 5, 2001, the defendant,
Alexander Holburn hosted and paid for a party for associates and articled
students at the firm (the “Associates’ Party”), with all associates and all
articled students being invited to attend. The Associates’ Party was at Rodney’s
Oyster Bar Restaurant with dinner and drinks paid for by the defendant,
Alexander Holburn.

5.         While the defendant, Alexander Holburn was the
host of the Associates’ Party, no partner attended, and it was left to the
senior associate lawyers, as agents of the firm, to supervise the said
associates party. The defendant, Poole was one of the senior associate lawyers
attending the Associates Party.

5.1       Some of the employees
went to Bar None night club after the Associates Party.

[187]     The WCAT
subsequently ruled that the injury did not arise in the course of employment
and the lawsuit continued. Lombard asserts that its policy only applies to
matters arising out of employment so the general question is still very much in
issue.

[188]    
Ms. Danicek was confronted in cross-examination with the apparent
contradictions in her 2006 and 2007 answers. She refused to acknowledge there
was a contradiction. Her answer from the discovery was read to her:

Well I don’t know. It seems to
suggest that the associates’ party was at both the Oyster Bar and Bar None, and
I don’t think that’s true.

[189]    
Ms. Danicek said in explaining this:

Well, I see it says that, and I
believe that I must not have understood the question. I had already said it was
a continuing event. That’s still my position.

[190]     Ms.
Danicek professed no particular knowledge of the worker’s compensation issue
and the amendments to the pleadings.

[191]     Finally,
the plaintiff refused to admit she had suffered headaches prior to the
accident, other than after the weight room accident and the prior motor vehicle
accident. She reported to Dr. Anton she could not recall having a history of
significant headaches. She denied previous headaches when she met with
Dr. Beckman. She said words to the same effect to her chiropractor, Dr.
Mallory.

[192]    
This is inconsistent with what Ms. Danicek reported to various medical
professionals before the dance accident occurred:

(a)      she
was prescribed medication for headaches when she was pregnant with her daughter
Jennifer;

(b)      in
1989, a Dr. Warkman diagnosed cervicogenic headaches;

(c)      Ms.
Danicek reported she previously suffered from headaches on a patient
information form;

(d)      over
the period from 1989 to 1997, Dr. Warkman’s clinical records contained several
reports of headache problems;

(e)      a
Dr. Olson reports a complaint of “headaches daily” when Ms. Danicek saw
him on June 24, 1998; and

(f)       as
outlined above, Ms. Danicek indicated to Dr. McRoberts that she had or had had
frequent headaches.

[193]    
In Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), O’Halloran
J.A. correctly pointed out that a witness’s credibility should not be gauged
solely by demeanour. The test for the truth of testimony must be “… its
consistency with the probabilities which surround the currently existing
conditions”. He went on to say that the test of truth of a witness’s story must:

…reasonably subject [her] story
to an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the story
of a witness in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in the place and in those conditions.

[194]     These
words are useful here.

Conclusions on Injuries
and Causation

The Motor Vehicle Accident

[195]     I accept
that Ms. Danicek suffered a mild, traumatic brain injury in the April 5, 2001,
dance accident. It has had a profound effect on her life. I accept that her
headache pain has persisted and persists today, some nine years after the
accident.

[196]     However,
before describing the nature, extent, and effect of that injury, it is
convenient to address the plaintiff’s claim arising out of the motor vehicle
accident.

[197]    
Counsel for the plaintiff argues that in the period leading up to June
29, 2002, the plaintiff was recovering from the dance accident injuries. Ms.
Danicek testified as follows:

Q         As time went on from January – from December
’01 up to the end of June ’02, and that’s when the car accident occurred, what
was your sense of how your problems were, or how your recovery was proceeding?

A          From about – I
don’t know. Towards the end of April on, it just seemed like my bad days weren’t
as bad; my good days were better. It just seemed like I was doing better, taking
less Advil, just generally things were progressing as they should.

[198]     Plaintiff’s
counsel has made the Li action the centrepiece of the plaintiff’s claim. Her
claim against the Li defendants totals $8.376 million dollars. The claim
against Mr. Poole is $285,400.

[199]    
As the Li defendants point out, the focus of the trial was largely the
dance incident:

10.       Days of evidence at this trial
were spent dealing with the injuries sustained in the Dance Incident, being a
brain injury and a condition of chronic pain which existed prior to the MVA and
what clearly continued post MVA. At page 40, paragraph 110 of her submissions,
it is said on the Plaintiff’s behalf:

Michelle Danicek’s prior history of
concussions could well have made her more vulnerable to the effects of a
further concussion. While all the medical evidence indicates that this can
predispose a patient to greater impairment from a subsequent concussion, in
this case, that is likely the case and explains why the brain injury has
had such an impact on her.

11.       The brain injury in question is
that sustained in the Dance Incident. Furthermore, at page 96, paragraph 214,
the following is said on the Plaintiff’s behalf:

Michelle Danicek was badly injured in the Dance
Accident – as evidenced by the fact that she was off work for eight months. By
March 2003, almost two years later she was having significant ongoing problems,
although she was still hopeful that she would recover.

12.       The Plaintiff’s written
submissions total approximately 165 pages. The evidence with respect to the
Plaintiff’s recovery from the Dance Incident injuries prior to the MVA and the
alleged effects of the MVA and the argument in relation thereto, consists of
approximately 10 pages, being pages 84 to 90 and 160 to 164.

13.       And yet, notwithstanding what the
Plaintiff says were the effects of the Dance Incident in her closing
submissions (see paragraphs 10 and 11 above) the Plaintiff seeks damages in the
amount of $8,376 million against these Defendants and “only” $285,400 against
Mr. Poole (at p. 164, para. 391).

14.       It is
the submission of these Defendants, meaning no disrespect to the Plaintiff,
that the closing submissions made on her behalf with respect to the MVA and the
damages which should be paid by these Defendants are no more than an act of
desperation.

[200]     In
essence, the theory of the plaintiff’s case against the Lis is that Ms. Danicek
was on a path of recovery in May-June 2002 and that the motor vehicle accident
denied her that recovery. In other words, Ms. Danicek claims that but for the
motor vehicle accident, the injuries she sustained in the dance accident would
have continued to improve to the point she would have completely (or at least
very substantially) recovered.

[201]    
The plaintiff’s case against the Lis, and the apportionment of damages
referred to above, is said by counsel to be based on the principle in Long
v. Thiessen (1968), 65 W.W.R. 577 (B.C.C.A.). In Mr. Murphy’s submission,
the motor vehicle accident has greatly complicated the task of trying to divide
the damages between two sets of tortfeasors. In his submission, in such
circumstances, the Li defendants should bear the loss, relying on the following
passages from Robertson J.A.’s reasons in Long at pg. 591:

Because the injuries inflicted in the second accident were
superimposed upon the then residual effects of the injuries inflicted in the
first accident, it is a matter of the greatest difficulty to determine what
damages should be awarded for each set of injuries. The plaintiff should
not receive more in respect of the first accident than he would if the second
had not occurred; nor should he receive less because it did occur.

Upon whom should the burden resulting from the difficulty
of assessing damages fall? I think that it should fall on the defendant who
caused the second accident, Laliberte. When he “found” the plaintiff, the
plaintiff had a cause of action against the Thiessens; if Laliberte made the
proof of the plaintiff’s damages resulting from the first accident more
difficult, Laliberte should make good any loss thereby resulting to the
plaintiff. At the same time, the plaintiff should not be compensated twice for
any injuries that are hard to segregate. I think that the way in which justice
can best be done here is: (a) To assess as best one can what the plaintiff
would have recovered against the Thiessens had his action against them been
tried on April 22, 1966 (the day before the second accident), and to award
damages accordingly; (b) To assess global damages as of the date of the trial
in respect of both accidents; and (c) To deduct the amount under (a) from the
amount under (b) and award damages against Laliberte in the amount of the
difference. I think that nothing I have said in this paragraph is inconsistent
with Baker v. Willoughby [1968] 2 WLR 1138, [1968] 2 All ER 236, or any
of the cases referred to there.

[Emphasis
Added.]

[202]     Further, it
is the plaintiff’s theory that the injuries caused by the motor vehicle
accident were superimposed on the residual effects of the dance incident. In
combination, these two accidents have resulted in the continuation of Ms.
Danicek’s headaches, creating an indivisible loss.

[203]    
That was Ms. Danicek’s belief and her evidence when she testified at
trial.

[204]    
However, as the Li defendants argue, this theory is entirely
inconsistent with much of her evidence. For example, she told Derek Nordin, a
vocational rehabilitation consultant, that she was taking 25 to 30 Advil per
day in the first six months of 2002. This led to the following exchange in the
cross-examination of Ms. Danicek by Mr. Abrioux:

Q         So right up to June 2002, you’d, at times,
take from 25 to 30 Advil, correct, per day?

A          Well, I think that’s correct with regard to
the first few months of the year I believe that is correct yes.

Q         Ms. Danicek, if you are in fact reducing
your Advil consumption in May and June 2002, why wouldn’t you have told Mr.
Nordin about that?

A          I don’t think I would have specifically
thought to say it.

Q         Why not?

A          Well, one reason
is, is that I don’t have any records of that time, but generally speaking, I –
I think I was just thinking about my time when I first went back to work. So
when I first went back to work, I know, because I recorded it down, that I was
taking that much Advil.

[205]     Counsel
for the Lis disputes the assertion that Ms. Danicek was on a trajectory to
recovery. Counsel points to other evidence:

1.       She told
Dr. Anderson in April 2002 that she had spoken to a partner about leaving the
firm. Ms. Danicek’s evidence is that she was in error in telling him this and
that this conversation took place in 2003.

2.       Dr. Anderson said in
cross-examination he found the information about the plaintiff recovering in
2002, before the accident, to be difficult. He was asked to agree there was a
lack of clarity as to the effect, if any, of the motor vehicle accident on the
plaintiff’s condition. His response was:

Yes, its…it is a puzzle to me. I can’t say with any
certainty, and I think that’s up to His Lordship.

3.       Dr.
Anton agreed with counsel for the Lis that Ms. Danicek met the criteria for
chronic pain disorder before the 2002 motor vehicle accident.

4.       The plaintiff was unable to
provide details to substantiate her contention that she perceived a “trajectory
of improvement” prior to the motor vehicle accident:

Q         But you can’t give any specific details…?

A          I can’t, but that’s because there’s no specific
record of that, and I just cannot recall that detailed type of information from
back then… but I can’t sit here and say, you know, what I was doing on day x
ten years ago, I can’t do that.

…

Q         The measuring stick between April the 15^th,
give or take, 2002 and the end of June 2002 is such that you can’t say what you
were doing on a given day, how long you were working, how you felt when you got
home, nothing of that nature; correct?

A          You’re right, I can’t.

5.       Frank
Schober gave extensive evidence about the plaintiff’s condition at different
times, from the time of the accident to the present. He said nothing about
improvements in her condition during the period just before the motor vehicle
accident.

6.       Ms.
Danicek was asked in cross-examination whether in the period immediately before
the motor vehicle accident she was “close” to being better. She replied that
she was not.

7.       Counsel
argues that Ms. Danicek had a meeting with Eileen Vanderburgh in May 2002, at
which time Ms. Vanderburgh talked to her about writing off hours. It is
significant, says counsel, that Ms. Danicek did not report to her that her bad
headaches were easing up. All that she said was that she told Ms. Vanderburgh
she was still having bad headaches.

8.       The plaintiff saw the
chiropractor, Dr. Mallory, in mid-June 2002. Her complaint then was “lots of
headaches”. This was shortly before the accident. In his report, he made no
distinction about her condition before and after the motor vehicle accident:

Q         If we
can just stop there, Dr. Mallory, what do you remember of how Michelle Danicek
presented when she came to your clinic for these numerous treatments?

A          Pretty much every time she
came, she would walk through the door with her eyes kind of closed because she
was really uncomfortable. She was always sore.

[206]     Additionally,
the plaintiff had a “very very bad headache” the day before the motor vehicle
accident. In her view, this headache caused her to “let Mr. Pakrul down”, and
likely caused her to cancel social plans which she had for the evening of
Friday, June 28, 2002.

[207]     I do not
accept the plaintiff’s theory, and I specifically reject the submission that
the plaintiff would have made a full recovery from the injuries she suffered in
the dance accident but for the motor vehicle accident. This theory is not in
accordance with the preponderance of the evidence, which establishes Ms. Danicek
continued to suffer the debilitating impacts of the dance accident before, at
the time of, and after the motor vehicle accident.

[208]     While I
have rejected the plaintiff’s “trajectory of recovery” theory on the facts, the
Court of Appeal recently held that the plaintiff’s theory is legally incorrect.
The Long v. Thiessen approach no longer applies to indivisible injuries
caused by consecutive tortfeasors: Bradley v. Groves, 2010 BCCA 361.

[209]     Having
found that the plaintiff would not have completely recovered from the dance
accident even if the motor vehicle accident had not occurred, in light of Bradley,
the essential question to address is whether the dance accident and the motor
vehicle accident caused the plaintiff divisible or indivisible injuries.

[210]    
As an alternative to the “trajectory of recovery” theory, the plaintiff
claims that the injuries she suffered in the motor vehicle accident combined
with and exacerbated the effects of the dance accident. This in turn resulted
in the chronic and debilitating headaches she continues to suffer to this day.
In the plaintiff’s submission:

379   Based on the evidence, the
Plaintiff suffered a mild traumatic brain injury and a whiplash type injury in
the Dance Accident. The MVA also caused a whiplash type injury and caused these
headaches to increase in severity and type. Michelle’s headaches are an
indivisible injury.

[211]    
In B.P.B. v. M.M.B., 2009 BCCA 365, 97 B.C.L.R. (4^th)
73, leave to appeal ref’d [2010] S.C.C.A. No. 90, Chiasson J.A. summarized the
law on causation and the apportionment of damages stated in recent decisions of
the Supreme Court of Canada, reaching the following conclusions:

33     In a case such as this where there are multiple causes
of a plaintiff’s injury, the core question is whether the injury is divisible.
If it is, a plaintiff can recover from a defendant only the damages
attributable to the injury caused by that defendant. If the injury is
indivisible, subject to considerations I shall discuss, a plaintiff can recover
100% from the defendant of the damages attributable to the injury which is
caused or contributed to by the defendant regardless of the contribution to the
injury by others (Athey, paras. 17-20).

…

42     In my
view, the trial judge in this case failed to determine whether the plaintiff’s
injury was divisible or indivisible. She appears not to have distinguished “between
causation as the source of the loss and the rules for the assessment of damages
in tort” as mandated by the Supreme Court of Canada in para. 78 of Blackwater.
The liability question is whether the conduct of the defendant caused injury. The
assessment of damages requires a determination whether the injury derived from
multiple sources and whether it is divisible. If it is, responsibility is
allocated to the individual sources of the injury.

[Emphasis
Added.]

[212]    
In concurring reasons, K. Smith J.A. stated:

69     Tortfeasors are joint tortfeasors when one is the
principal or is vicariously liable for the other, or where a duty imposed
jointly on them is not performed, or where there is concerted action between
them to a common end. Tortfeasors who are not joint tortfeasors are several
(or “separate” or “independent”) tortfeasors. The latter are of two kinds –
several tortfeasors whose acts combine to produce the same damage and several
tortfeasors whose acts cause different damage. Joint tortfeasors and several
tortfeasors whose acts combine to produce the same damage are concurrent
tortfeasors.

…

71 Several tortfeasors whose tortious conduct causes
different damage are liable only to the extent of the damage they cause…

72 On the other hand, tortfeasors whose tortious acts
combine to produce the same injury are jointly and severally liable to the full
extent of the injury… Accordingly, a tortfeasor whose tortious conduct is
part of the cause of an injury is liable to the full extent of the injury even
though other tortious or non-tortious causal factors for which he is not
responsible helped to produce the harm… Although each is fully liable to the
plaintiff for the entire loss, such tortfeasors are entitled to contribution as
between themselves on the basis of their respective degrees of fault…

…

74 
Whether damage is divisible for purposes of determining the extent of the
liability of multiple tortfeasors is a question of fact in each case, not a
question of law…

[Emphasis
Added; Citations Omitted.]

[213]     In
assessing the precise nature and effects of the injuries Ms. Danicek suffered
in the motor vehicle accident, the expert evidence is of some use. But I
must keep in mind the fact that the conclusions of the experts are premised
upon the plaintiff’s subjective reporting and perception of her symptoms.

[214]    
In addition to being based purely on the plaintiff’s self report, in my
view, the opinions of the experts who opine that there is a causal link between
the plaintiff’s present condition and the motor vehicle accident, with respect,
do so without any real thought as to a distinction between the dance accident
and the motor vehicle accident. On cross examination, Dr. Robinson stated he
had not directed his inquiry as to the plaintiff’s headaches in the immediate
pre and post motor vehicle accident time frame. He did not understand until:

…somewhat after the fact how
important this is in your context, and I don’t think I have that level of
appreciation in doing these reports. I assumed that her headaches had been
constant since the April 2001 injury on the dance floor and that they had been
aggravated by the June 2002 motor vehicle accident. Not to excuse it, but
unless there were detailed day to day headache diaries being kept during the
months leading up to the motor vehicle accident, it would be extremely
difficult to have a good appreciation as to the exact magnitude say, the day
prior to the motor vehicle accident…

[215]     Accordingly,
I must determine whether the plaintiff’s evidence at trial concerning the
effects of the motor vehicle accident is in harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable.

[216]     I conclude
it is not.

[217]     The motor
vehicle accident did not cause extensive damage to the two vehicles. They were
both driveable. The plaintiff was able to drive to Whistler without apparent
pain or discomfort. She took the other driver, Ms. Li, as her passenger.

[218]     Dr. Hunt
is of the view that the plaintiff suffered a concussion. That is not the view
of Drs. Anton, Anderson, Janke or Iverson.

[219]     The
evidence does not establish that the plaintiff suffered a concussion. There is
no direct evidence that she hit her head on the headrest. Her actions seem
inconsistent with her sustaining a concussion. Finally, as Mr. Abrioux noted,
the plaintiff is no longer claiming that she suffered a concussion according to
her written submissions.

[220]     As noted
earlier, I consider it telling that after the dance accident, Ms. Danicek took
an eight month leave of absence. After the motor vehicle accident, on the other
hand, Ms. Danicek kept working. She took no time off. Her recorded hours in the
month of July 2002 were her highest recorded hours for the year.

[221]     Additionally,
it is significant to me that Ms. Danicek made no mention of headaches in her
statements to ICBC after the motor vehicle accident. Further, she made no
mention of these injuries to Dr. P.S. Lejay, the physician who saw Ms. Danicek
on July 23, 2002.

[222]     Taking
into account the totality of the evidence, I make the following findings:

a)             
I find that the two accidents did not produce overall or global symptoms
that are difficult if not impossible to separate.

b)             
I am not satisfied that the plaintiff suffered another brain injury or
concussion in the motor vehicle accident.

c)              
The plaintiff would not have made a full recovery from the injuries she
suffered in the dance accident in the absence of the motor vehicle accident.

d)             
I am unable to find that any causal link has been established between
the effects of the dance accident and the motor vehicle accident suggesting the
existence of an indivisible loss.

e)             
Specifically, I am not satisfied that the motor vehicle accident caused or
contributed to the debilitating headaches Ms. Danicek suffers from.

[223]     Rather, I
find as a fact that in the motor vehicle accident, the plaintiff suffered
relatively minor soft tissue injuries, which resolved within approximately six
months. These injuries were divisible and of a different nature from those
suffered in the dance accident. I find as a fact they neither caused,
contributed to, or exacerbated the plaintiff’s underlying chronic injuries suffered
in the dance accident.

[224]     As well,
the evidence does not support her counsel’s contention that the June 2004 motor
vehicle accident had any lasting significance. Dr. Mendelson, Ms. Danicek’s
family physician, described her problem as a “neck flare-up” when he referred
her to the neurologist, Dr. Beckman, in the spring of 2003.

[225]     I accept
that the motor vehicle accident did cause neck and shoulder soft tissue
injuries which in turn may have led to some headaches. However, these headaches
were unrelated to the chronic and debilitating headaches Ms. Danicek has experienced
since 2001.

[226]     I find any
symptoms attributed to the divisible soft tissue injuries suffered in the motor
vehicle accident resolved within six months of the accident. I conclude that
the motor vehicle accident did not cause or exacerbate the chronic headaches
that Ms. Danicek has experienced since 2001.

The Dance Injury

[227]     I find Ms.
Danicek suffered a mild, traumatic brain injury in the April 6, 2001 accident. It
has had a profound effect on her life. She was completely disabled from work
until December 2001. As Dr. Anderson notes in his report dated January 26,
2007, the mild traumatic brain injury has resulted in ongoing post-concussive
symptoms, which include physical, cognitive, and emotional difficulties.

[228]    
Her headache pain has persisted and persists today, some nine years
after the accident. The post-traumatic headaches have resulted in the plaintiff
developing chronic pain disorder. Dr. Anderson notes that chronic pain disorder
“causes significant distress or impairment in social, occupational, or other
important areas of functioning.” Dr. Anton sets out the following description
of chronic pain disorder in his November 22, 2004 report:

In my opinion Ms. Danicek at this time probably satisfies
DSM-IV criteria for the diagnosis of a Chronic Pain Disorder associated with
both psychological factors and a general medical condition. Criteria for that
diagnosis include the presence of pain for more than six months severe enough
to warrant clinical attention and cause significant distress or impairment of function.

Chronic Pain disorders do not
respond to the type of intervention usually used in the treatment of acute
pain. The goal of treatment is not to eliminate pain but rather to improve
function and quality of life despite chronic pain.

[229]    
The medical evidence suggests that the plaintiff is not likely to
completely or even substantially recover from these symptoms. In his November
4, 2008 report, Dr. Anton states:

It is my opinion that Ms. Danicek’s biggest impairment and
the factor that most restricts her participation in life activities is still
her headaches.

Ms. Danicek has had extensive
treatment for her headaches without any sustained benefit. I think it unlikely
that further investigations or treatment will significantly improve her
headaches. If her headaches do not improve, then she will probably not be able
to increase her level of function or return to gainful employment.

[230]    
Dr. Robinson noted that persons who suffer from severe headache
disorders similar to the plaintiff’s condition are not likely to realize
substantial improvements with the available treatments.

[231]    
Dr. Anderson does not consider it likely that the plaintiff’s chronic
pain disorder will meaningfully improve:

Q         Quote:

In general, patients who have had
chronic pain disorder for more than two years in duration continue to be
symptomatic despite further treatment and the passage of time.

Dr. Anderson,
is that statement based on studies; is it based on your experiences, or is it
based on a mixture of those?

A          My Lord, that
opinion is based on a mixture of both my experience seeing and treating
patients with chronic pain over the last 20 years and also the literature… if
chronic pain disorder lasts for more than two years in duration, then there is
only minimal improvement even if a person attends a comprehensive
multidisciplinary pain clinic. The person may learn ways of better coping with
their pain, My Lord, but the actual pain itself doesn’t reduce significantly
after the two year mark.

[232]     In
addition to the headaches and pain disorder, I accept that the dance accident
caused some measure of cognitive impairment. Ms. Danicek felt that before the
accident she was quick to understand new concepts. Today, she feels that, in
her words, everyone gets it except her.

[233]     However,
this evidence does not establish the plaintiff’s contention that she is
completely disabled from any gainful employment, an issue addressed in detail
below.

Damages
– Dance Incident

Mitigation

[234]     Counsel
for Lombard argued the plaintiff has failed to mitigate. A plaintiff has an obligation
to take all reasonable measures to reduce her or his damages. The duty to
mitigate includes undergoing treatment to alleviate or cure injuries: Kero
v. Love (1994), 90 B.C.L.R. (2d) 299 (C.A.).

[235]     Whether a
plaintiff has acted reasonably to mitigate or lessen her loss is a question of
fact. The defence bears the burden of establishing that the plaintiff has
failed to act reasonably to mitigate her loss. In this case, Lombard must show
Ms. Danicek failed to follow medical direction, and that had she followed
that advice, she would have recovered further or faster: Mattu v. Fust,
2009 BCSC 624 at para. 73, aff’d 2010 BCCA 254.

[236]    
A useful summary of the law is found in Byron v. Larson, 2004
ABCA 398, 357 A.R. 201:

15    The general proposition underlying the principle of
mitigation is that a defendant cannot be held liable for damages which the
plaintiff could have reasonably avoided: Janiak v. Ippolito, [1985] 1
S.C.R. 146. (“Janiak”); Silvaniuk v. Stevens (1999), 244 A.R. 75,
1999 ABCA 191 (“Silvaniuk”). Once a plaintiff establishes the liability
of the defendant, damages, and quantum of damages, the burden shifts to the
defendant to prove that the plaintiff could and should have mitigated his or
her losses: Janiak at 163. To establish mitigation, the defendant must
prove on a balance of probabilities that: 1) the plaintiff acted unreasonably;
and 2) had the plaintiff acted reasonably, his or her losses would be reduced
or eliminated: Janiak at 163-166.

16    Whether a party has been
reasonable in refusing to accept medical treatment is a question of fact: Janiak
at para. 7; Engel v. Salyn, [1993] 1 S.C.R. 306 at 316. The trier of
fact must make the determination of reasonableness taking into consideration
all of the surrounding circumstances: Silvaniuk at para. 12. Whether a
plaintiff’s conduct in respect of his or her injuries was reasonable “includes
submitting to reasonable medical treatment and following medical advice when
appropriate”: Silvaniuk at para. 12.

[237]     Here, Lombard
argues that the plaintiff has failed to mitigate in two respects: (1) she has
not followed treatment recommendations; and (2) she did not seek a leave of
absence when her pain persisted after her return to work in December 2001.

[238]     Lombard
also made passing reference to the plaintiff’s failure to seek employment since
departing Alexander Holburn. However, their submissions on this point were specifically
directed to the issues of past wage loss and loss of earning capacity, and I
will address them under those heads of damages.

1.       Treatment

[239]     Several
physicians have recommended counselling: Dr. Kay, Dr. Anton, Dr. Robinson and
Dr. Mendelson. A multi-disciplinary pain program was recommended by Drs. Anderson,
Anton, Iverson and Janke. In addition, Dr. Iverson recommended behavioural therapy
and meditation. Dr. Hunt recommended meditation. Work trials were recommended
by Hettie DeBeer, the plaintiff’s occupational therapist.

[240]    
In his December 21, 2009 report, Dr. Kay described psychological
counselling as the plaintiff’s “best chance”:

… I would concur with Dr.
Iverson’s suggestion that Ms. Danicek… probably needs to radically change her
relationships to her pain, and to her own physical and emotional suffering.
This need will defy simple medical prescriptions, no matter how numerous. It is
not easily accomplished, and will require a therapist ground in such an
approach, but in my opinion it holds the best chance for Ms. Danicek to break
free from her current entrapments.

[241]     Ms.
Danicek has had limited counselling. She met with a counsellor a few times in
2004 but did not feel there was a “connection”. She attended at the Thorson
Pain Clinic. Apart from that, she has not complied with these recommendations.

2.       Leave of absence

[242]     Lombard
argues that when the plaintiff realized she made a “big mistake” after
returning to work in December of 2001, and that work was hindering her
recovery, she ought to have taken a further leave of absence to fully recover.

[243]     It is
clear that Alexander Holburn is an accommodating law firm. If Ms. Danicek had
sought a leave in 2002 to complete her recovery, it would have been granted. The
evidence also indicates that that would not disqualify her from consideration
for partnership.

Conclusion
on Mitigation

[244]     On the first
issue, there are things and treatments recommended by the experts the plaintiff
could have done. But I am unable to say that if Ms. Danicek had tried them,
they would likely have been successful.

[245]     It is
clear that Ms. Danicek has sought treatment from a large number of health care
professionals. She has tried numerous forms of treatment with limited success,
including: physiotherapy, chiropractic, massage therapy, Botox injections,
biofeedback sessions, kinesiology sessions, limited psychological counselling, some
occupational therapy, acupuncture, and medications.

[246]     However,
as Dr. Anton noted in his November 4, 2008 report, this extensive treatment has
not led to any sustained benefit; accordingly, it is his opinion that it is
“unlikely that further investigations or treatment will significantly improve
[Ms. Danicek’s] headaches.”

[247]    
Dr. Robinson testified:

In seeing someone who has had
chronic post-traumatic headache that appears to have begun in April 2001 and
then further aggravated by another trauma the following year, you know, at the
longest, the disorder has now been present for three years following evaluating
her; that fact alone is a highly negative prognostic indicator. The fact that
there has already been quite extensive trials of treatment, both of medication
and physical therapies, with apparently no success further suggests a negative
outlook… this clinical context suggests… it’s a difficult headache disorder
to manage. And my chances of making a substantial improvement with the
available medical treatments is going to be relatively low.

[248]     I am not
persuaded that Lombard has met the onus of establishing the plaintiff would be
in better condition if she had engaged in the treatments recommended. While
this is a possibility, more than speculation is necessary to establish a
failure to mitigate.

[249]     Similarly,
I am not persuaded that Lombard has met the onus of establishing the plaintiff
would be in better condition if she had taken time off in 2002. The evidence does
not convince me that the plaintiff would have recovered or improved had she
taken another leave of absence.

Non-pecuniary
Damages – Dance Incident

[250]     The
plaintiff seeks an award of $200,000 under this heading. Counsel for the
plaintiff argues this represents approximately 60 percent of the current upper
limit of $330,000.

[251]     A
functional approach to quantifying non-pecuniary damages is required, and damages
must be assessed in light of the plaintiff’s particular circumstances. The
quantum is not to be influenced by the legal limit imposed by Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. It is improper to compare
the injuries of a particular plaintiff to those of the plaintiffs in the 1978
trilogy for the purpose of making an award: Boyd v. Harris, 2004 BCCA
146, 24 B.C.L.R. (4^th) 155.

[252]    
In Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4^th)
19, leave to appeal ref’d [2006] S.C.C.A. No. 100, Kirkpatrick J.A. provided
“an inexhaustive list of common factors” that influence an award of
non-pecuniary damages:

·       
age of the plaintiff;

·       
nature of the injuries;

·       
severity and duration of pain;

·       
disability;

·       
emotional suffering;

·       
loss or impairment of life;

·       
impairment of family, marital and social relationships;

·       
impairment of physical and mental abilities;

·       
loss of lifestyle; and

·       
the plaintiff’s stoicism, as a factor that should not generally
speaking penalize the plaintiff.

[253]     Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life and loss of amenities. The compensation awarded should be
fair and reasonable to both parties. When assessing non-pecuniary damages,
fairness is measured against awards made in comparable cases. Such cases,
though helpful, serve only as a rough guide. Each case depends on its own
unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-89.

[254]     The dance
accident has impacted the plaintiff’s life profoundly. She has lost much. She
has had and continues to have headaches of varying severity and duration. The
injury has affected her physical and mental abilities and had a significant
impact on her relationship with Mr. Schober.

[255]     The
plaintiff has experienced a loss of enjoyment of life, and is unable to engage
in many recreational activities. Her lifestyle has drastically changed since
the dance accident.

[256]     An example
of the effect of the dance accident on the plaintiff’s life is found in the
evidence of her friend, Kristen Schneider. Prior to the accident, Ms. Schneider
described the plaintiff as having “the most energy I think out of anybody I
know”. At trial, Ms. Schneider testified that after the dance accident, Ms.
Danicek was unable to consistently make their customary lunch dates; when she
did, they had to find restaurants that were quiet to avoid exacerbating her
headaches.

[257]     Additionally,
she and the plaintiff no longer regularly go for runs, rollerblade, or hike the
Grouse Grind, as was their habit prior to the dance accident.

[258]    
Ms. Danicek is no longer able to pursue her career as a corporate
solicitor working on “big deals”, a position she worked hard to obtain. The
plaintiff enjoyed this work and her career was a source of pride for her. I
accept this loss has negatively affected her feelings of self-worth and
emotional well-being. In Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313, Dickson C.J. (in dissent) stated at 368:

Work is one of the most
fundamental aspects in a person’s life, providing the individual with a means
of financial support and, as importantly, a contributory role in society. A
person’s employment is an essential component of his or her sense of identity,
self-worth and emotional well-being.

[259]     It is
clear the plaintiff continues to suffer from her injuries, and her problems are
likely to continue in the future without substantial improvement or resolution.
Her prognosis for recovery or diminishment of her chronic headaches and pain is
not good.

[260]     While individual
judgments turn very much on their particular facts, two decisions which have
influenced me are Reilly v. Lynn, 2000 BCSC 360, varied on other grounds,
2003 BCCA 49, leave to appeal ref’d [2003] S.C.C.A. No. 221, and Adamson v.
Charity, 2007 BCSC 671.

[261]     In the
circumstances, an award of $185,000 is appropriate.

Special
Damages – Dance Incident

[262]     The
plaintiff is entitled to recover as special damages all the pre-trial expenses
she incurred as a result of her injuries, so long as they were caused by the
tort and the decision to incur them was reasonable. The approach to special
damages is based on the principle that the plaintiff is to be restored to the
position she would have been in had the accident not occurred. A court should
award special damages if the expenses incurred were reasonably necessary: Mitchell
v. We Care Health Services Inc., 2004 BCSC 902 at paras. 33-34.

[263]     Ms.
Danicek’s claim for special damages is $22,305.54. This is made up of
acupuncture treatments ($130), chiropractic treatments ($3,575), kinesiology
($423.47), massage therapy ($2,497.95), prescription medication ($2,761.55), psychological
counselling ($4,676.31), rehabilitation therapy ($5,791.70), and miscellaneous
expenses of $2,449.56.

[264]     In the
course of giving evidence, Ms. Danicek noted that two optometry or optical
items were not related to the accident. Taking these deductions into account, I
find these expenses were reasonably incurred, and special damages of $22,158.54
are awarded. However, I find below that $595 of chiropractic and massage
therapy are attributable to the motor vehicle accident.

[265]     Accordingly,
special damages of $21,563.54 are awarded on account of the dance accident.

Past
Income Loss – Dance Incident

[266]     The
plaintiff has been off work in two discrete periods, from April 6, 2001 to
December 17, 2001 and the period since March 13, 2004. There is no dispute
about the 2001 income loss: it is $34,220.

[267]     Damages
for the period from March 2004 to the date of the trial are more difficult to
assess. Lombard disputes the plaintiff’s entitlement to recover damages for
this period, submitting that she had fully recovered from the dance accident by
this time, or alternatively, but for the motor vehicle accident she would have
fully recovered.

[268]     I reject
both of these submissions on the facts. I also reject Lombard’s theory that Ms.
Danicek would have recovered from her injuries had she taken a second leave of
absence. I am satisfied on a balance of probabilities that the plaintiff’s
absence from work from March 13, 2004 until the date of trial is a result of
the injuries she suffered in the dance accident. However, I am not persuaded
she was totally disabled from doing any work in this period.

[269]    
The parties agreed to certain facts for the purposes of quantifying the
past income loss claim:

1.       Absent the April 5/6, 2001 accident, the
Plaintiff would have been called to the Bar in May of 2001.

2.       The salary of an associate at Alexander Holburn
Beaudin & Lang LLP, (“AHBL”), would have been reviewed annually on May 1 of
each year.

3.       In the first three years at AHBL, the
Plaintiff’s earnings would have been comparable to other associates.

4.       After three years, as associate lawyer’s
salary is based on performance.

5.       The
ranges of salary levels paid to an associate called in 2001 were as follows:

6.       AHBL associate lawyers were eligible for
annual bonuses if they achieved a certain level of billable hours.

7.       In the 2003 calendar year, the Plaintiff
received a bonus of $3,350 based on her 2002 performance.

8.       In the 2004 calendar year, the Plaintiff
received a bonus of $3,850 based on her 2003 performance.

9.       An associate lawyer with a 2001 call date may
have been eligible to join the partnership at AHBL as of January 1, 2008

10.     New AHBL partners would have earned $190,000
to $200,000 in 2008.

11.     In
2008, the low income in the business law group at AHBL was $222,150, the high
income was $522,654 and the average was $375,649.

[270]     I also had
the benefit of a report from Darren Benning, an economist. In his most recent
report, dated January 5, 2010, he calculated income loss for the period 2001 to
January 5, 2010 at $605,874. However, that was prepared before the information
from Alexander Holburn was provided.

[271]    
In Kahle v. Ritter, 2002 BCSC 199, 22 M.V.R. (4^th)
275, D.M. Smith J. (as she then was) described the general approach to past
income loss claims as follows:

109   Proof of a loss of
opportunity claim requires a plaintiff to establish on a balance of
probabilities a causal connection between the injuries sustained in the
accident and the loss of opportunity… Past income loss is not an assessment
of a hypothetical or future event which is based on a real and substantial
possibility of its occurrence (the test for future or hypothetical event), but
rather is proof on a balance of probabilities that the injuries caused the loss
of opportunity. In short, the issue is whether Mr. Kahle has established on a
balance of probabilities that but for the accident he would have realized this
income.

[272]    
However, in Gill v. Probert, 2001 BCCA 331, in relation to a
plaintiff’s claim for pecuniary loss prior to trial, Mackenzie J.A. said:

PAST LOSS EARNINGS

[8]    As the plaintiff was unable to return to his
employment after the first accident his earnings from that employment, but for
the accident, are hypothetical. The trial judge started with a gross figure
assuming no contingencies. She then considered both positive and negative
contingencies…

[9] Athey v. Leonati [1996] 3 S.C.R. 458, relied on
by the plaintiff, held that past events such as negligence and causation
between fault and injury must be proved on a balance of probabilities and
thereafter treated as certainties. However, Mr. Justice Major stated (at para.
27) that hypothetical events need not be proved on a balance of
probabilities, and they are simply to be given weight according to their
relative likelihood. In assessing hypothetical events there is no reason to
distinguish between those before trial and those after trial. In making an
allowance for contingencies the trial judge was assessing the hypothetical
events that could have [a]ffected the plaintiff’s employment earnings,
according to the assessment to their relative likelihood.

[Emphasis
Added.]

[273]     Accordingly,
when a past wage loss claim depends on hypothetical events, the balance of
probabilities is not the governing test.

[274]     In Smith
v. Knudsen, 2004 BCCA 613, 33 B.C.L.R. (4^th) 76, the court
further clarified this point. In Smith, the appellant was the sole
shareholder of a company which he alleged had lost $1.39 million because, due
to his injuries, he was unable to prepare a tender offer for a major contract.

[275]     The trial
judge held that the standard of proof concerning possible future events is not
applicable to past events, and that “past facts, like loss of income, must be
proved on a balance of probabilities”. Accordingly, the trial judge instructed
the jury that the plaintiff must prove two issues on a balance of
probabilities. First, that but for the accident, the company would have got the
contract. Second, the amount of the plaintiff’s past loss of income arising
from the failure to get that contract.

[276]    
Rowles J.A. held this instruction was incorrect:

23     It is plain from his
ruling that the trial judge was of the view that the appellant’s loss of
opportunity claim had to be proven on the balance of probabilities simply
because the foundation for the claim pre-dated the trial and, for that reason,
had to be regarded as a “past” loss. In my view, the trial judge’s instructions
do not accord with the case authorities regarding proof of hypothetical events…

[277]    
At paragraphs 26-27, Rowles J.A. held that a plaintiff must establish
both liability and causation on the balance of probabilities; specifically,
that the injuries sustained in the accident caused the loss for which damages are
sought. However, where the claimed past pecuniary loss is by its nature hypothetical,
the authorities concerning proof of hypothetical events govern assessment of
the claim.

[278]    
These authorities require the court  to assess the relative likelihood
of hypothetical events, in accordance with the following instruction:

28        …

In deciding what actually happened in the past, you must
weigh the evidence and reach conclusions on a balance of probabilities.
Anything more probable than not you should treat as certain. When you are asked
to determine (what might happen in the future/what would have happened in the
past but for the (injury/loss), you must use a different method of proof. First
you must decide if the event (is/was) a real possibility; you must then
determine the actual likelihood of its occurring.

[Emphasis
Added.]

[279]    
Accordingly, the jury in Smith should have been instructed as
follows:

37     … if they were satisfied
on a balance of probabilities that the injuries sustained as a result of the
accident caused such an impairment [in preparing for the contract bid], they
had to go on to assess the chances of the appellant having been the successful
bidder on the ambulance contract and to make an award using that assessment.

[280]     There are
three hypothetical events to consider here. First, would the plaintiff have
become a partner? Second, what is the likelihood she would have received a
bonus? Third, where would she have ended up in the salary range in any given
year?

[281]     There is a
high likelihood she would have become a partner, either at Alexander Holburn or
some other large commercial firm. I base that conclusion on my assessment of
her aptitude and motivation and the positive views of her performance expressed
by members of the firm.

[282]     For these
same reasons, there is a strong likelihood that she would have been eligible
for bonuses and would have ended up toward the high end of salary ranges in
each year.

[283]     On the
assumption that Ms. Danicek would have become a partner by January 1, 2008 and
having in mind the figures in the agreed facts, a fair assessment of what she
would have earned had she worked full time from March 2004 until trial is
$950,000.

[284]     However,
while I accept the plaintiff suffered significant and life altering injuries in
the dance accident, I am not satisfied that the evidence supports the
plaintiff’s contention that she is completely disabled from any gainful
employment. This was the thrust of the plaintiff’s evidence at trial, and it
finds some support in the expert evidence. However, these opinions are premised
on the plaintiff’s self reporting of her symptoms.

[285]     Interestingly,
Dr. Robinson, who the other experts agree has special experience in the
neurological treatment of headaches, acknowledged that people can be productive
and high functioning even in the presence of chronic pain. He gave himself as
an example.

[286]     It is
clear that Ms. Danicek struggled to perform at a high level as a corporate
solicitor as a result of the injuries suffered in the dance accident. But the
fact remains that the plaintiff was able to work after the accident.

[287]     According
to the law firm’s evidence, which I accept, the plaintiff was a valued and
productive associate notwithstanding her injuries. Mr. Pakrul’s impression,
which was based on contact with her after the accident, was of a “bright and
intelligent” young lawyer who was “quick on the uptake”.

[288]    
However, this success masked the symptoms Ms. Danicek suffered and
continues to suffer from. Ms. Danicek’s plan at work was to hide her problems
from her colleagues until she “got better”. She wanted her colleagues to think
she was fully capable:

Q         Ms. Danicek, from the time you returned to
Alexander Holburn in mid December of 2001 until the time you left in March
2004, what did you do to try and hide your difficulties from the people at the
office?

A          Well, I did — I
took a lot of Advil, and I think, you know, once I take a certain amount of
Advil, oftentimes I can appear quite normal to others. And in times when I
couldn’t get to that point, I would just close my door. It was an open-office
policy at the firm, and generally speaking if your door was shut, people
wouldn’t try to contact you. And I made a point of not talking to other people
when I felt unwell.

[289]     By March
of 2004, the plaintiff was taking massive quantities of Advil and as a result
was vomiting at work – using a private washroom to hide that fact. Prior to her
departure from Alexander Holburn, the plaintiff’s life was comprised of working
and coming home to bed. She had little energy left to do anything else at all.

[290]     I am
persuaded that Ms. Danicek was not capable of full-time work as a lawyer in a
busy corporate practice from March 2004 until the date of trial. The plaintiff
no longer has the capacity to thrive or even get by in such a demanding
occupation given the residual effects of the dance accident. Simply put, it was
unmanageable for the plaintiff to work in such an environment. I accept her
evidence in this regard.

[291]     However,
she has chosen not to work at all. The suggestion that the plaintiff has no
residual capacity to work is belied by the fact that she did in fact continue
to work for nearly two years following the dance accident in an onerous and
demanding occupation.

[292]     Ms.
Danicek did not pursue some obvious possibilities. First, she might have sought
Alexander Holburn’s accommodation by according her a reduced work load.
According to Mr. Mallett, the firm has a policy of being supportive to disabled
employees. Alternatively, Ms. Danicek could have tried employment in a legal
environment where there is less pressure than in a busy solicitor’s practice.
She did not choose to do so. That is her right but it is not open to her to
claim a wage loss of someone who is totally disabled from working.

[293]     In the
plaintiff’s written submission, counsel concedes that Ms. Danicek has a
residual earning capacity, at least where things that “aren’t cognitively
taxing and can be done in a flexible time frame” are concerned.

[294]    
The plaintiff admits she has not actively sought any alternative work,
other than assisting Mr. Schober with managing some properties he owns:

Q         And you didn’t seek any trial of any type of
work or legal research or any kind of test of your working ability at any time
subsequent to these emails?

A          Through Hettie de Beer; that’s correct.

Q         Nor through anyone else; isn’t that correct,
Ms. Danicek?

A          Well, I would say
that doing things for Frank, helping Frank out, that is doing work stuff.

[295]     As I have
said, Ms. Danicek was capable of working at a reduced level. Additionally, Alexander
Holburn may well have accommodated her, given the high regard in which she was
held, notwithstanding her injuries.

[296]     What would
Ms. Danicek have earned if she had done something, rather than nothing? It is
impossible to make this assessment with any degree of precision. However, a
fair and reasonable conclusion is that she could have earned $75,000 to $80,000
per year if she had chosen a lower work load or a less challenging position. For
these reasons, the gross loss of $950,000 must be reduced by $425,000.

[297]     On that
basis, I assess past income loss from 2004 to January 5, 2010 at $525,000.

Loss
of Capacity – Dance Incident

1.       Legal Principles

[298]    
An award for loss of earning capacity presents particular difficulties.
As Dickson J. (as he then was) said in Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229 at 251:

We must now gaze more deeply into
the crystal ball. What sort of a career would the accident victim have had?
What were his prospects and potential prior to the accident? It is not loss of
earnings but, rather, loss of earning capacity for which compensation must be
made: The Queen v. Jennings, supra. A capital asset has been
lost: what was its value?

[299]    
The Court of Appeal recently summarized the correct approach to claims
for loss of future earning capacity in Perren v. Lalari, 2010 BCCA 140,
3 B.C.L.R. (5^th) 303. In that case, Garson J.A. endorsed the
following principles:

30     Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, [1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta
Ltd., [1978] 2 S.C.R. 229. These principles are:

1.         A future or hypothetical
possibility will be taken into consideration as long as it is a real and
substantial possibility and not mere speculation [Athey at para. 27],
and

2.         It is not loss of earnings but,
rather, loss of earning capacity for which compensation must be made [Andrews
at 251].

…

32     A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. in Chang,
and by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos
and Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[300]     The
plaintiff continues to suffer substantial impairment from injuries I have found
were caused by the dance accident. I am satisfied she likely will not be capable
of working at the job she held before the dance accident in the future. It is
clear that the plaintiff has been rendered less marketable and cannot take
advantage of job opportunities she otherwise might have. On all the evidence,
it is abundantly clear the plaintiff has suffered a diminishment in earning
capacity and there is a real and substantial possibility of future pecuniary
loss. Accordingly, I find the plaintiff has discharged the burden of proof
referred to in Perren.

[301]    
The next step in the analysis is to quantify Ms. Danicek’s loss. In Reilly
v. Lynn, 2003 BCCA 49, 10 B.C.L.R. (4^th) 16, Mr. Justice Low,
writing for the majority, summarized the relevant principles in assessing
damages for loss of future earning capacity:

[101] The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para.
27, Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The
valuation of the loss of earning capacity may involve a comparison of what the
plaintiff would probably have earned but for the accident with what he will
probably earn in his injured condition: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 93 (S.C.). However, that is not the end of the inquiry; the
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop (2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder
v. Paquette, [1995] B.C.J. No. 644 (C.A.). Moreover, the task of the Court
is to assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting
for contingencies, the remarks of Dickson J. in Andrews v. Grand & Toy
Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts of
the individual case, particularly the nature of the plaintiff’s occupation, but
generally it will be small…

[302]    
Garson J.A. referred to two methods of quantification in Perren,
the earnings approach, and the capital asset approach. In Pallos v.
Insurance Corporation of British Columbia (1995), 100 B.C.L.R. (2d) 260 at
271 (C.A.), Finch J.A. (as he then was) described various approaches to a loss
of capacity claim:

43     The cases to which we were
referred suggest various means of assigning a dollar value to the loss of
capacity to earn income. One method is to postulate a minimum annual income
loss for the plaintiff’s remaining years of work, to multiply the annual
projected loss times the number of year remaining, and to calculate a present
value of this sum. Another is to award the plaintiff’s entire annual income for
one or more years. Another is to award the present value of some nominal
percentage loss per annum applied against the plaintiff’s expected annual
income. In the end, all of these methods seem equally arbitrary.

[303]    
Justice Finch set out a list of further specific considerations in Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.), which may be
taken into account in making an assessment according to the capital asset
approach:

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

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

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

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

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

[304]     In Palmer
v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), leave to appeal ref’d,
[1991] S.C.C.A. No. 54, the respondent had not suffered a total loss of earning
capacity, but his capacity had been impaired. I have reached a similar
conclusion in this case, finding Ms. Danicek has a fairly significant residual
capacity to work, notwithstanding the accident.

[305]    
In Palmer, the court held that in these circumstances it is an
error in law to conclude that the plaintiff is entitled to be compensated, subject
to an allowance for contingencies, for the whole of her working life for the
difference between what she would have earned in her pre-accident occupation,
and what she would earn in her post-accident occupation. Southin J.A. stated at
pp. 59-60:

A plaintiff is not entitled at the cost of the defendant to
say, “the only sort of work I like is such and such. I cannot do that.
Therefore, you must give me sufficient capital to replace the income I cannot
earn on that sort of job”.

What the respondent proved in this case was that he had lost
his capacity to follow the sort of occupation he was pursuing at the time of
the accident. But that did not prove, on a balance of probabilities that he
could not earn by pursuing some other sort of occupation, as much as before.

As I have already indicated, I am
satisfied that both the opening and closing addresses of counsel for the
respondent and the charge to the jury left the jurors with the mistaken
understanding that they were to assess “loss of future earning capacity” on the
footing that the respondent had the right to be compensated for losing his job
at Safeway.

[306]     According
to Palmer, a trial judge should not calculate a plaintiff’s “future loss
of income”, but should determine the plaintiff’s future loss of earning
capacity. Accordingly, economic projections of a plaintiff’s income stream with
and without the accident are not dispositive. I should not calculate Ms.
Danicek’s future loss of income on an arithmetical basis, but rather must
assess her loss of earning capacity by taking into account all relevant
evidence.

[307]    
This is in accord with what a majority of the court held in Parypa v.
Wickware, 1999 BCCA 88, 65 B.C.L.R. (3d) 155. Cumming J.A. noted that
extrapolating a present income into the future and discounting it to a present
value is only an indicator of loss of capacity, and is not the
compensable loss itself. The court ’s task is to ultimately:

70     … base its decision on what is reasonable in all of
the circumstances. Projections, calculations and formulas are only useful to
the extent that they help determine what is fair and reasonable. Macfarlane
J.A. in Friesen v. Pretorius Estate (1997), 37 B.C.L.R. (3d) 255,
identifies the importance of using estimates to arrive at a figure that is
reasonable in all the circumstances, at 263:

In Morris v. Rose Estate, (1996), 75 B.C.A.C. 263
(B.C.C.A.) Mr. Justice Donald, writing for the court said, at para. 24:

Assessing damages in this area involves an estimate based on
prophecies. Mathematical certainty is impossible in virtually all cases. While
a comparative scenario approach will often be useful, the judge must step back
and look at all the relevant factors, especially general incapacity, before
fixing an amount. See the remarks of Lambert J.A. in Ryder v. Paquette,
[1995] B.C.J. No. 644 (C.A.)

…

[308]    
As noted by Mr. Justice Hall in Pett v. Pett, 2009 BCCA 232, 93
B.C.L.R. (4^th) 300, the ultimate task of the court is to quantify
the financial harm sustained by the plaintiff:

[18] In the recent case of Lines v. W & D Logging Co.
Ltd., 2009 BCCA 106, Saunders J.A. said this:

[57] There are two major components to an assessment of loss
of future earning capacity. One is the general level of earnings thought by the
trial judge to be realistically achievable by the plaintiff but for the
accident, taking into account the plaintiff’s intentions and factors that weigh
both in favour of and against that achievement, and the other is the projection
of that earning level to the plaintiff’s working life, taking into account the
positive and negative vagaries of life. From these two major components must be
applied an analysis that produces a present value of the loss, adjusted for all
appropriate contingencies.

[19] I think this to be a helpful
framework for a court to follow in fixing a measure of damages for future loss.
Some cases speak of the loss of a capital asset and some of the loss of future
earnings, but the essential matter that engages the attention of a court making
an assessment in this area is to endeavour to quantify the financial harm
accruing to the plaintiff over the course of his or her working career.

[309]     When
assessing the impairment of a plaintiff’s future earning capacity in accordance
with the principles summarized above, the court must take into account all
relevant contingencies.

[310]    
Generally speaking, an allowance for positive and negative contingencies
should be modest: Kern v. Steele, 2003 NSCA 147 at para. 59, 220 N.S.R.
(2d) 51. In Trites v. Penner, 2010 BCSC 882 at para. 228, Ker J. held
that relevant contingencies can include such things as the potential for
improvements in health, opportunities for advancement, decline in the economy
and loss of employment, as well as the usual chances and hazards of life.

[311]    
In Campbell-MacIsaac v. Deveaux, 2004 NSCA 87, 224 N.S.R. (2d)
315, the court described the use of contingencies as an “exercise of
prediction, based not on guesswork but on proper proof [requiring] a careful
consideration of the evidence and a healthy dose of common sense.” Saunders
J.A. endorsed the following approach to this issue:

101     … When assessing contingencies the court is engaged
in the exercise of examining possibilities, probabilities and chances against
the likelihood that they might prevail in any given factual situation. The
evidence upon which such estimations are based must be “cogent evidence and not
evidence which is speculative” (Schrump, et al v. Koot et al (1977), 82
D.L.R. (3d) 553 (Ont. C.A.)). Evidence which supports a contingency must show a
“realistic as opposed to a speculative possibility” (Graham v. Rourke
(1990), 75 O.R. (2d) 622 (Ont. C.A.)). Justice Oland also endorsed the approach
in Graham, supra, which was to distinguish general contingencies
from special ones. Into the category of general contingencies fall those
features of human experience that are likely to be common to all of us, things
like the aging process, sickness, or promotions at work; whereas circumstances
falling into the category of special contingencies are peculiar to that
particular claimant. For example, remarkable talents, education, a unique
illness or a poor employment history would be characterized as special
contingencies.

102     … the impact of general
contingencies may not be easily susceptible to formal proof. A trial judge has
a discretion whether to adjust an award for future pecuniary loss in order to
take into account general contingencies, but any such adjustment ought to be a
modest one. Where, however, a party relies upon a specific contingency, whether
negative or positive, there must be sufficient proof on the record which would
support an allowance for that type of contingency…

2.       Facts and Analysis

[312]     Two expert
reports are before the court to assist in valuing the plaintiff’s claim. Mr.
Benning’s report was based on Ms. Danicek becoming a partner in January 2008
and earning $492,000 per year until retirement at age 65. He calculated that
loss as $8,507,041. His report of January 5, 2010 assumes income of $330,000
per year from January 2008 until retirement and calculates the future loss of
income as $5,549,460.

[313]     I also had
the benefit of a report from another economist, Doug Hildebrand. His numbers
are substantially lower. He is using the Census figures and applied a deduction
of 28.5 percent for labour market contingencies. His evidence is that women
lawyers take time off work to care for children.

[314]     Ms.
Danicek’s children are quite self-sufficient. There is no reason to speculate
that she will work part-time to have a baby or care for children, particularly
given her history of academic and work related accomplishments while caring for
her daughters.

[315]     I also
place limited weight on the figures underlying Mr. Hildebrand’s report.

[316]     In Reilly,
the Court of Appeal reduced the damages awarded to a young lawyer disabled as a
result of a mild traumatic brain injury. The court held the trial judge’s
reliance on expert evidence based on unproven salary figures published in a lawyer’s
magazine was improper. In varying the award of damages, the court made
reference to Census figures.

[317]     In this
case, the evidence shows that Census figures underestimate incomes. There is
reliable evidence in the form of a confidential survey of Vancouver law firms
showing substantial earnings of Vancouver lawyers, upon which Mr. Benning’s
report is premised. The data in this survey is sufficiently objective and
reliable to usefully assist in fixing the plaintiff’s damages.

[318]     I am
satisfied that Ms. Danicek had the potential to become a very successful
solicitor. There is no reason to conclude anything but that she would have had
a long and successful career. She has a long record of working or going to
school. She was never out of the work force before the accident. She was ambitious
and motivated. She also had the ability to become a successful rainmaker. That
is a talent that is rewarded by law firm partnerships.

[319]    
Bruno De Vita was the managing partner at Alexander Holburn from 1998 to
2002. Mr. De Vita said that prior to the dance accident, he had heard “nothing
but good things” about Ms. Danicek, and that he felt she had a “good future”
ahead of her. On cross-examination, he stated the following:

Q         Would
it be fair to say that what you were hearing indicated that she might be a real
star?

A          I mean, I think that’s — I
think that’s fair to say, although whenever you hear that in an early stage of
a career, I mean, you never really know, but I think that’s a fair comment.

[320]     Ms.
Danicek enjoyed working on “big corporate deals”. The evidence discloses that as
a regional firm, Alexander Holburn offered a limited platform for such work. As
a result, Ms. Danicek and Mr. Schober had discussed the possibility of her
moving to a bigger firm at some future point in her career where there would be
greater exposure to this type of work. Mr. Pakrul and Mr. Mallett also
mentioned this possibility in their evidence. Mr. Murphy submits it is likely
the plaintiff would have made the move to a large national law firm at some
point in her career, where she would have a substantial income, over and above
that earned by a partner at Alexander Holburn.

[321]     I agree
there is a fair possibility this may have occurred.

[322]    
Mr. Murphy characterized the plaintiff as a “rainmaker”. Warren Smith, a
legal recruiter, testified that in the job market the most coveted skill in a lawyer
was the ability to be a rainmaker. He offered the opinion that it is rare to
find a person who is a good lawyer and a rainmaker. He provided the following
definition of that term:

Q         Can you explain to His Lordship in your mind
what a rainmaker is.

A          I mean, I think
in a nutshell a rainmaker is viewed as somebody who brings in more work to the
law firm than they are able to do themselves, and they would be somebody who
have, you know, generally strong social skills, good relationships with their
clients. Usually you don’t get to be there without also having, you know, a
good work ethic and being good as a lawyer.

[323]     I accept
that such lawyers are, on a relative basis, paid more than other lawyers for
their skill at bringing in clients to their firm.

[324]    
Mr. Mallett provided the following evidence, which suggests the
plaintiff had some of the attributes of a “rainmaker”:

Q         Now, you’ve now been in practice for about 10
years as an associate and as partner. In terms of all the other lawyers you’ve
worked with and Michelle Danicek, who would you describe as the best lawyer
you’ve seen at working the room.

A          That would be
Michelle. Like I said, it was a talent that she had. They say some things can
be taught, you know. With her, she just had it from the beginning.

[325]     Mr.
Mallett also noted that the plaintiff was very effective at bringing new
clients into the firm. She brought in work that was above her level of
expertise, which is unexpected for a junior lawyer.

[326]     Mr. Pakrul
stated that the plaintiff had “above average ability, perhaps extraordinary
ability to successfully market in cold-call situations where she didn’t know
anybody and in situations where she was simply working with existing contacts
or clients.”

[327]     Peter
Snell was also a lawyer at Alexander Holburn, becoming a partner in 2003. He
agreed that the plaintiff had very good business development skills.

[328]     I accept
that the plaintiff had the skill to become a successful rainmaker, and would
likely bring a substantial volume of business to whatever firm she worked for. However,
as counsel for Lombard points out, it is important to keep in mind that the
plaintiff was only a junior associate with limited experience at the time she
left Alexander Holburn. Accordingly, some caution must be exercised in basing a
pattern of future success or “rainmaking” on this relatively short period of
employment.

[329]     The four
considerations listed in Brown v. Golaiy are all present here: Ms.
Danicek has been rendered less capable overall from earning income from all
types of employment; the plaintiff is less marketable or attractive; she has
lost the opportunity of taking advantage of all job opportunities which might
otherwise have been available to her; and is less valuable to herself as a
person capable of earning income.

[330]     It is
highly likely that she would have stayed in the workforce and achieved a
substantial income as a successful commercial solicitor.

[331]     Ms.
Danicek has a residual earning capacity which I have described above.

[332]     In all the
circumstances, a fair and reasonable assessment of the plaintiff’s loss of
capacity, net of her residual earning ability, is $5.1 million. It is so
awarded.

Cost
of Future Care – Dance Incident

[333]    
An award for the cost of future care is appropriate when the plaintiff
is able to demonstrate that such care is medically justified to restore her to
her pre-accident condition. This requires a careful analysis of the items
claimed by the plaintiff in light of the medical evidence. In Aberdeen v.
Zanatta, 2008 BCCA 420, 84 B.C.L.R. (4^th) 220, the court
confirmed that the proper approach to an award of future care costs was stated
in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), where McLachlin
J. (as she then was) held at page 78:

The award for future care is
based on what is reasonably necessary on the medical evidence to promote the
mental and physical health of the plaintiff.

[334]    
While the provision of “substitute pleasures for those which have been
lost” is the purpose of non-pecuniary damages and these items should not be
awarded as costs of future care, the line between these concepts is often
difficult to draw. As McLachlin J. noted in Milina, happiness and health
are often intertwined.

[335]    
In Izony v. Weidlich, 2006 BCSC 1315, Masuhara J. observed:

[70] At the outset, I note that the cost of future care award
is “by its nature notional and not a precise accounting exercise to determine
the strict minimum” required by the plaintiff: Strachan (Guardian ad Litem
of) v. Reynolds, 2006 BCSC 362. In Courdin v. Meyers (2005), 37
B.C.L.R. (4^th) 222, 2005 BCCA 91 at para. 34, our Court of Appeal
endorsed the following approach to dealing with the many imponderable factors
and contingencies in assessing damages in this category;

Damages for cost of future care are a matter of prediction.
No one knows the future. Yet the rule that damages must be assessed once and
for all at the time of trial (subject to modification on appeal) requires
courts to peer into the future and fix the damages for future care as best they
can. In doing so, courts rely on the evidence as to what care is likely to be
in the injured person’s best interest. Then they calculate the present cost of
providing that care and may make an adjustment for the contingency that the
future may differ from what the evidence at trial indicates.

(Krangle (Guardian ad litem of) v. Brisco, [2002] 1
S.C.R. 205, 2002 SCC 9 at para. 21.)

[336]    
He went on to say at para. 74:

[74] I agree that future care
costs must be justified as reasonable both in the sense of being medically
required and in the sense of being expenses that the plaintiff will, on the
evidence, be likely to incur (see generally Krangle). I therefore do not
think it appropriate to make provision for items or services that the plaintiff
has not used in the past (see Courdin at para. 35), or for items or
services that it is unlikely he will use in the future.

[337]     However,
as the trial judge noted in Aberdeen, it is clear that the analysis of
what is “medically justified” is not as narrow as what is “medically
necessary”.

[338]     I have had
the benefit of a report from Alison McLean setting forth the goods and services
she believes should be provided to the plaintiff. The present value of future
care based on that report is $94,546.

[339]     Ms. McLean
is an occupational therapist. She has met with the plaintiff and reviewed many
of the records. She has also conducted a physical/functional assessment and
assessment of Ms. Danicek’s home environment. Her recommendations are as follows:

1.       Occupational
therapy sessions

[340]     Ms.
McLean, as well as Drs. Anton and Anderson are of the view that occupational
therapy would be helpful and appropriate. Ms. McLean recommends two sessions
per month for one to two years at a cost of $4,844 to $6,044 per year.

2.       Psychological counselling

[341]     Ms. McLean
points out that Drs. Anton, Mendelson and Anderson are all of the view that
this would be indicated. The recommendation is 10 to 20 sessions for a total
cost of $1,600 to $3,200 .

3.       Chiropractor

[342]     Dr. Mallory
recommends a once monthly treatment regimen. Ms. Danicek reported to Ms. McLean
that she would attend weekly if she could afford it. Ms. McLean recommends
weekly treatment at an annual cost of $2,340.

4.       Massage therapy

[343]     Ms. McLean
notes that Ms. Danicek obtains some relief from headache symptoms from this
therapy. The yearly cost is $900.

5.       Kinesiologist/personal
trainer

[344]     Ms. McLean
recommends five sessions per year in the plaintiff’s home at an annual cost of
$200 to $300 plus GST.

6.       Transportation costs

[345]     Because of
driving limitations due to headaches, there is a recommendation for alternate
arrangements. That is made up of $2,080 for taxi fares for Ms. Danicek’s
younger daughter and yearly provision for Ms. Danicek to visit her parents in
Vernon, travelling by aircraft.

7.       Pain program

[346]     Ms. McLean
recommends an inter-disciplinary pain program to teach Ms. Danicek how to cope
with her pain and prevent it from becoming the major focus of her life. The
cost is substantial: there is a two-day assessment available for $1,975 at the
Vancouver Pain Clinic. There is then a 28-day program costing $11,060. There is
as well a two-day follow-up at $790. There is a similar program with a similar
cost offered by Lifemark Health Centre.

8.       Homemaking service

[347]     Such a provision
will be necessary if Ms. Danicek’s relationship with Mr. Schober ends. In that
event, Ms. McLean recommends homemaking services at four hours per week. The
annual cost is $4,316 to $4,773.60.

9.       Yard work services

[348]     In the
event Ms. Danicek’s relationship with Mr. Schober ends, and she lives in a home
where there is a yard, there needs to be provision made for this assistance. The
yearly cost is from $700 to $1,312.

10.     Equipment

(a)      Memory and organizational
aids

[349]     Ms. McLean
recommends $60 per year for a calendar, day-timer and notebooks.

(b)      Ergonomic seating

[350]     Ms.
Danicek requires a supportive ergonomic chair. The current cost ranges from
$819 to $1,289 and the chair would need to be replaced after 10 to 15 years.

11.     Supplies

(a)      Non-prescription medication

[351]     Ms.
Danicek is currently using extra-strength Advil. The yearly cost is calculated
at $324.

(b)      Prescription medications

[352]     Ms. McLean
reports that she is not qualified to predict the future need for prescription
medication. Ms. Danicek is currently using Amitriptyline at an annual cost of
$26.

[353]     I reach
the following conclusions with respect to future care.

1.       Occupational therapy

[354]     I accept
the view of Drs. Anton and Anderson and Ms. McLean that this would be helpful
and appropriate. An appropriate award is $4,500 for this.

2.       Psychological counselling

[355]     Ms.
Danicek has been advised to seek psychological counselling. She has done so but
to a very limited extent. I think it unlikely that she would accept the
recommendation of Ms. McLean and therefore this award is not justified.

3.       Chiropractor

[356]     Dr.
Mallory’s assistance is helpful to Ms. Danicek. He recommends monthly treatment.
That is sufficient.

4.       Massage therapy

[357]     There are
few things that provide Ms. Danicek with relief from her headache symptoms. Massage
therapy is indicated. I accept the recommendation of Ms. McLean.

5.       Kinesiologist

[358]     I am not
persuaded that such treatment is medically justified.

6.       Transportation costs

[359]     Ms.
Danicek’s younger daughter is now 19 and has her “N” licence. As well, the
evidence is that on the most recent trip to Vernon, Ms. Danicek was able to
drive. I am not prepared to make an award under this heading.

7.       Pain program

[360]    
Ms. Danicek testified with respect to a pain program as follows:

I’m not sure about this. I’ve
attended the Thorson Pain Clinic in North Vancouver. I thought I received all
the benefit that I could from that. I’m not sure if attending another pain
clinic would be of any benefit to me considering all the treatments I’ve
received already.

[361]     Ms.
McLean, on the other hand, testified that Ms. Danicek’s view may well change
over the next year or two.

[362]     Ms.
Danicek has a strong personality with an independent mind. Given her view of a
pain clinic, I think it highly unlikely that she would avail herself of this
service.

8.       Homemaking service

[363]     Ms.
Danicek testified that she has a housekeeper but would have had a housekeeper
even apart from the accident. No award is indicated.

9.       Yard work services

[364]     Ms.
Danicek testified that she would have hired someone whether she were working as
a lawyer or not. No award is indicated.

10.     Equipment

(a)      Memory and organizational
aids

[365]     I agree
with counsel for the Li’s that Ms. Danicek has a computer and uses it. In the
circumstances, it provides all the assistance that she requires.

(b)      Ergonomic seating

[366]     There is
no evidence from Ms. Danicek of any interest in acquiring ergonomic seating. I
make no award.

11.     Supplies

(a)      Non-prescription medication

[367]     I agree
with Ms. McLean that Ms. Danicek uses Advil and the award at $300 per year is appropriate.

(b)      Prescription medications

[368]     The only
prescription medication I am aware of is Amitriptyline. An annual cost of $26
is reasonable and is awarded.

[369]     I assess
the cost of future care to be $48,000. That is based on an assessment of the
present value of costs to be incurred in the future.

Damages – Motor Vehicle
Accident

(a)      Non-pecuniary damages

[370]     I find
that the plaintiff suffered soft tissue injuries as a result of the motor
vehicle accident. These injuries consisted of pain in the neck and shoulders,
which in turn may have led to some headaches. However, I have found that these
headaches were unrelated to the chronic and debilitating headaches Ms. Danicek
has experienced since 2001. I find that any pain and discomfort attributable to
the soft tissue injuries resolved within approximately six months.

[371]     Counsel
for the defendants referred me to a number of cases to support his submission
that $3,500 to $8,500 is an appropriate range of damages: Saluja v. Weiss,
2007 BCSC 706; Coles v. Tung, 2004 BCSC 1714; Heimdallson v.
Heimdallson, 2008 BCSC 1436; Wild v. Toth, 2004 BCSC 1449; Huynh
v. Vo, 2006 BCSC 1736; Pennykid v. Escribano, 2004 BCSC 954; and Machala
v. Roodenburg, 2002 BCSC 397.

[372]     Having
regard to those authorities and to the particular circumstances of this case, I
assess non-pecuniary damages at $10,000.

(b)      Past loss of income and loss
of earning capacity

[373]     The
plaintiff continued working after the motor vehicle accident. She only stopped
working in March 2004. I have found that the loss of income after that time and
into the future was, and is, attributable to the dance incident and not the
motor vehicle accident. The plaintiff has not established that but for the motor
vehicle accident she would have realized income prior to the trial. Neither has
she established that there is a real and substantial possibility of a future event
leading to an income loss related to the motor vehicle accident.

(c)      Special damages

[374]     The
plaintiff is entitled to be reimbursed for massage therapy treatments and
chiropractor visits in July, August, September and October 2002. I find these
treatments are linked to the soft tissue injuries the plaintiff suffered in the
motor vehicle accident. There are treatments by Dr. Mallory, for which she paid
$315. There are six visits to a massage therapist for a total of $280.

[375]     The award
under this heading is $595.

(d)      Cost
of future care

[376]     I agree
with the Li defendants: any services, equipment and supplies are causally
related to the dance incident and not the motor vehicle accident.

Summary

[377]     The
plaintiff is entitled to the following damages arising from the dance incident:

[378]    
The plaintiff is entitled to the following damages arising from the
motor vehicle accident:

[379]    
Mr. Murphy advises that the parties intend to address the issue of a tax
gross up and any management fees. In the ordinary course, the plaintiff would
be entitled to interest at the prevailing rate and costs. If the parties seek
to make further submissions on these issues, notice must be given to the court
within 30 days of the filing of this judgment.

“Kelleher J.”