IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110622

Docket: M092181

Registry:
Vancouver

Between:

Barbara Iwanik

Plaintiff

And

Katya B. Hayes and
Craig D. Campbell

Defendants

Before:
The Honourable Madam Justice Gray

Reasons for Judgment

INTRODUCTION

[1]          
Ms. Iwanik was injured in a motor vehicle accident in Nelson, B.C. on
June 20, 2008. She was driving a 2001 Pontiac Sunfire car when it was struck by
a 1997 Chevrolet Blazer owned by the defendant Mr. Campbell and driven by the
defendant Ms. Hayes. Ms. Hayes admits that she caused the accident. The
assessment of Ms. Iwanik’s damages proceeded to a six day trial.

[2]          
At the time of the accident, Ms. Iwanik was 61 years old and working
part-time as a sales associate in a 7-Eleven convenience store. Ms. Iwanik
claims that the accident exacerbated her pre-existing fibromyalgia and caused
ongoing pain in her neck, back, and left knee, and that she suffers a reduced
ability to work, to look after herself, and to enjoy herself.

[3]          
The defence argued that any problems which Ms. Iwanik is now suffering
are the result of her pre-existing condition. The defence argued that Ms.
Iwanik’s knee problems were not related to the accident, and that the accident
did not cause an increase in her attendance for chiropractic and massage
therapy treatment. The defence also argued that Ms. Iwanik’s claim for future
lost earning capacity is exaggerated, and that she would not likely have
obtained work which pays better than the work she is doing at present.

[4]          
The parties agreed that Ms. Iwanik is entitled to $1,976.31 for special
damages.

[5]          
Ms. Iwanik argued that the proper award would be about $290,000,
consisting of $70,000 for non-pecuniary damages, $25,603 for past lost income
net of income tax, $150,000 for lost future earning capacity, $10,400 for the
cost of future care, $25,650 for an in-trust/housekeeping claim, and the sum of
almost $2,000 for special damages.

[6]          
The defence argued that the proper award would be about $33,000 to about
$85,000, consisting of $30,000 to $50,000 for non-pecuniary damages, $112 for
past lost income net of tax, from zero to $30,000 for lost future earning
capacity, $1,000 to $2,000 for cost of future care, the sum of almost $2,000
for special damages, and nothing for the in-trust/housekeeping claim.

[7]          
I am grateful to counsel for their focussed and efficient presentation
of this case.

FACTS

a) Prior to the accident on June 20, 2008

[8]          
Ms. Iwanik grew up in Nelson, B.C. and graduated from high school
there.  She started working at an unusually young age to give financial
assistance to her family.

[9]          
When she was nine years old, Ms. Iwanik started babysitting for pay most
weekends and sometimes during the week. When she was 12, she worked full-time
in the summer picking berries for pay. When she was about 12 until 15 years
old, she worked for pay in the kitchen at a nursing home, working weekends and
holidays and sometimes after school as well.

[10]       
When Ms. Iwanik was about 15 through 18 years old, she worked as a
trainee nurse’s aide. Again, she worked weekends and holidays and sometimes
after school as well. In the summers, she worked full-time, sometimes double
shifts. She continued to babysit for pay.

[11]       
Ms. Iwanik graduated from high school when she was 18. She worked that
summer and then went to visit her mother’s family in Holland. She worked in two
nursing homes in Holland, each for about a year.

[12]       
Ms. Iwanik married her first husband in 1967. They moved to Nelson, B.C.
in 1968. Ms. Iwanik began working full-time at a nursing home as a nurse’s aide.

[13]       
Ms. Iwanik’s elder daughter, now named Ms. Aikins, was born in 1968. Ms.
Iwanik took only a few weeks away from work in connection with the birth.

[14]       
Ms. Iwanik and her family then moved to Oliver, B.C. Ms. Iwanik worked
full-time night shifts in Penticton cleaning commercial buildings from about
1968 to 1970. She also looked after a foster child.

[15]       
In 1970, Ms. Iwanik and her family moved to Salmo, B.C. Ms. Iwanik
worked at a hotel, cleaning rooms and cooking. Her younger daughter, now named
Ms. Baird, was born in 1970.

[16]       
Ms. Iwanik’s first husband left the family in 1970. Ms. Iwanik and her
two daughters remained in Salmo. They then moved to Nelson, where Ms. Iwanik
worked for a nightclub, cooking and cleaning.

[17]       
Ms. Iwanik met and married her second husband in 1972. Ms. Iwanik
continued to live in Nelson and to work full-time. She worked in a greenhouse
seasonally, and also in a flower shop. She continued that work for about nine
years.

[18]       
In about 1980, Ms. Iwanik and her second husband and daughters moved to
Kaslo, B.C. Ms. Iwanik did accounting work for a newspaper and took care of
foster children. She and her family moved back to Nelson in 1984.

[19]       
Ms. Iwanik continued to work full-time. She did building maintenance in
a 52- tenant housing facility in Nelson for about nine years, from about 1984
to 1993.

[20]       
In 1984, Ms. Iwanik also started working part-time for the RCMP looking
after females in the cell block. Her job title was “matron.”

[21]       
Around 1984, Ms. Iwanik suffered a serious fall, which caused a
compression fracture in her mid-back, around the T9 level. This caused her
periodic bouts of pain.

[22]       
In about 1990, the City of Nelson became Ms. Iwanik’s employer for her
work as matron in the city jail.

[23]       
In 1993 or 1994, after about 21 years of marriage, Ms. Iwanik and her
second husband separated.

[24]       
Ms. Iwanik worked full-time at a Mohawk gas station from about 1994 to
2000 as a sales clerk.

[25]       
Ms. Iwanik first became a patient of Dr. Bridger, a family physician, in
1998. Dr. Bridger diagnosed her with fibromyalgia in 1998, and recorded that
she had a full complement of trigger points. However, Ms. Iwanik did not take
any time off from work.

[26]       
In May 2000, Ms. Iwanik began working for 7-Eleven at the Nelson
7-Eleven Store. She was 53 years old. She had worked continuously since she was
nine years old. She left her position at the Mohawk station because she
believed that her prospects of advancement would be better at 7-Eleven.

[27]       
Ms. Iwanik’s first position for 7-Eleven was as a sales clerk. The work
involved a great deal of standing to deal with customers. It also involved
cleaning the premises and shovelling snow. Ms. Iwanik continued to work nights
as a matron at the city jail, usually on a shift of either 3 pm to 11 pm, or 11
pm to 7 am.

[28]       
Ms. Iwanik’s earnings for each of the years 2000, 2001 and 2002 for her
work as matron was about $12,000. Her total earnings in 2002 were about
$34,500.

[29]       
Ms. Iwanik progressed to the position of senior sales clerk at the
Nelson 7-Eleven Store. That position involved some staff management, but also
more paperwork and more challenges. By 2002, she had progressed to the position
of assistant manager trainee.

[30]       
In October 2003, Ms. Iwanik complained to Dr. Bridger about right
shoulder pain. However, she did not take any time off from work.

[31]       
Ms. Iwanik was promoted to the position of assistant manager at the
Nelson 7-Eleven Store effective December 20, 2003.

[32]       
Ms. Iwanik’s earnings in each of 2003 and 2004 for her work as matron
was about $3,800. Her total earnings in 2003 were about $30,500, and in 2004
about $29,500.

[33]       
In September 2005, Ms. Iwanik was appointed to the position of acting
manager of the Nelson 7-Eleven Store. Ms. Iwanik’s earnings in 2005 were about
$32,200, from working both for 7-Eleven and as matron in the jail.

[34]       
Effective March 12, 2006, Ms. Iwanik was appointed to the position of
manager of the Nelson 7-Eleven Store.

[35]       
As manager, Ms. Iwanik was entitled to be paid a salary and bonuses. She
was entitled to about $8,300 annually if the Nelson 7-Eleven Store performed
better than the budget. She was entitled to a further bonus based on how well
the store performed in comparison with what 7-Eleven terms the “controllable earnings”.

[36]       
Ms. Iwanik loved the work as manager. She found it exciting, challenging
and fulfilling. She liked the customers and the staff and enjoyed leading her
team. She worked long hours. She worked 12 to 18 hours on her workdays, but was
on call seven days a week, so she worked most days. Ms. Iwanik stopped working
at the city jail because she did not have time to do that work as well.

[37]       
As manager, Ms. Iwanik’s duties included performing the physical parts
of the job from time to time, including stocking shelves, shovelling snow, and
scrubbing floors or doing other required maintenance. The job requires frequent
lifting of one to five pounds, and occasional lifting of up to 40-50 pounds. It
requires constant standing, bending and reaching, with a moderate amount of
manual dexterity.

[38]       
Ms. Iwanik was successful in managing the Nelson 7-Eleven Store. The
store was losing money when she started managing it, and increased its
profitability by 25% each of the following two years. 7-Eleven gave Ms. Iwanik
an award for the best increased sales in British Columbia.

[39]       
Ms. Iwanik worked in a 7-Eleven store in Dawson Creek for a month in
2006. She volunteered to work there when the store had an urgent need. In her
absence, the assistant manager of the Nelson 7-Eleven Store managed it.

[40]       
Ms. Iwanik was treated by a chiropractor, Dr. Taylor, 13 times in late
2006. The treatment was for pain in her neck, back and feet. However, she did
not take any time off from work.

[41]       
Ms. Iwanik’s earnings at 7-Eleven for the year 2006, including bonus,
were about $52,400. In 2006, the Nelson 7-Eleven Store had its best financial
performance in the history of the store.

[42]       
Around the middle of 2007, 7-Eleven announced to its managers that it
was changing its bonus structure as of January 2008. Although the change was in
fact relatively modest, Ms. Iwanik thought it was drastic and became angry
about the proposed change. It does not appear that she fully understood the
likely impact of the change on her earnings. Because of this change, she advised
7-Eleven that she intended to retire on January 1, 2008.

[43]       
In June or July 2007, Ms. Iwanik learned that her older daughter, Ms.
Aikins, had been diagnosed with cancer. Ms. Aikins was then 39 years old. At
the time, Ms. Iwanik understood that Ms. Aikins was not likely to live long,
although happily Ms. Aikins has in fact survived the cancer. Ms. Iwanik began
considering ways that she could assist Ms. Aikins, and in particular, to assist
her in raising her own daughter, who was then nine years old.

[44]       
Ms. Iwanik then arranged with 7-Eleven to change her plans, so that she
would take a medical leave of absence until the end of March 2008, at which
time her resignation would come into effect.

[45]       
Ms. Iwanik suffered from a frozen shoulder in August 2007. She saw a chiropractor
four times, and a registered massage therapist once that month. Ms. Iwanik saw
her massage therapist to relieve tension in her shoulders and neck, and because
it felt good. She went to the chiropractor for maintenance of her back.

[46]       
In September 2007, 7-Eleven sent Ms. Iwanik a letter requiring her to
take steps to correct cash shortages in the Nelson 7-Eleven store. 7-Eleven did
not have any further concerns following the letter.

[47]       
In November, 2007, Ms. Iwanik commenced a four and one-half month unpaid
leave of absence from 7-Eleven.

[48]       
In 2007, Dr. Bridger diagnosed Ms. Iwanik with chronic obstructive
pulmonary disease (“COPD”).

[49]       
Ms. Iwanik’s income from 7-Eleven in 2007 was about $61,700.

[50]       
In early January 2008, Ms. Iwanik experienced a severe headache, due to
a sinus infection which was treated with antibiotics. During this month, she
underwent six chiropractic treatments and three massage therapy treatments.

[51]       
Ms. Iwanik gained about 30 pounds over about four months in late 2007
through early 2008.

[52]       
By January 2008, Ms. Aikins was able to take care of herself and her
daughter, although she did not return to work until April 2008, at which time Ms.
Aikins started working part-time only. The cancer treatments had been more successful
than originally predicted.

[53]       
Ms. Iwanik completely changed her plans when it became apparent that she
did not need to care for Ms. Aikins and Ms. Aikins’s daughter. Ms. Iwanik
wanted to return to work after the conclusion of her medical leave.

[54]       
In February 2008, Ms. Iwanik underwent four chiropractic treatments and
one massage therapy treatment.

[55]       
In March 2008, Ms. Iwanik underwent two chiropractic treatments, and one
massage therapy treatment.

[56]       
Ms. Iwanik’s medical leave and her job with 7-Eleven ended on March 31,
2008. In the period before it ended, she received medical employment insurance
benefits, extended medical benefits, long term disability benefits, and payout
of her entire pension at 7-Eleven. She also cashed in some registered retirement
savings plan (“RRSP”) holdings. This was the first time in her life that Ms.
Iwanik received employment insurance benefits.

[57]       
Ms. Iwanik underwent two chiropractic treatments in April 2008, and one
in May 2008. She also underwent a massage therapy treatment.

[58]       
In early 2008, Ms. Iwanik worked some shifts as matron and earned about
$3,000.

[59]       
Ms. Iwanik wanted to feel challenged and needed. She wanted to return to
the customers and staff at the Nelson 7-Eleven Store, and she wanted to resume
earning an income. Ms. Iwanik arranged with 7-Eleven to return to work at the
Nelson 7-Eleven Store. Ms. Iwanik knew that the position of manager of the
Nelson 7-Eleven Store had been filled, and she did not inquire about that
position, or about managing a 7-Eleven store in any other location. She
inquired about working in a different position.

[60]       
Effective May 30, 2008, Ms. Iwanik was rehired by 7-Eleven into the
position of a certified senior sales associate in the sunrise shift sandwich
program at the Nelson 7-Eleven Store. She was entitled to $14.00 per hour, plus
an extra $1.00 per hour for night shifts. She was considered a regular
part-time worker, working three to four days a week, for a weekly total of 24
to 32 hours. She would have welcomed longer hours.

[61]       
The job in the sandwich program required Ms. Iwanik to stand at the
counter for hours at a time, making and wrapping sandwiches and salads, with
few opportunities to sit. She was delighted to be working again at the Nelson
7-Eleven Store. She would have loved to become manager again if the opportunity
arose.

[62]       
Prior to the accident, Ms. Iwanik lived in her own trailer on Kootenay
Lake, which was beside the trailer of her younger daughter Ms. Baird, and Ms.
Baird’s husband and daughter. Ms. Iwanik did all her own shopping, cooking,
cleaning and laundry. She often cooked not only for herself but also for Ms.
Baird’s family. Ms. Iwanik maintained her garden, lawn, and trees, and
shovelled snow from her stairs and driveways and decks. She went for hour-long
walks most days with Ms. Baird, and did not suffer any pain from the walks. She
did baking, sometimes for 10 hours at a time, and reading. Ms. Iwanik organized
an annual bake sale as a fund-raiser for the cancer society. Ms. Iwanik also
assisted an elderly neighbour with shopping, medication, bathing, and sometimes
a long drive.

[63]       
At some point prior to the accident, Ms. Iwanik and Ms. Baird and her
husband decided to sell their trailers and purchase a home in the Nelson area.
The reasons for doing so were that Ms. Baird’s husband was often out of town,
Ms. Baird and Ms. Iwanik already spent a lot of time together, and the trailer
park did not want Ms. Baird to keep her dog at the trailer park.

b) The accident on June 20, 2008

[64]       
Ms. Iwanik had turned 61 years of age just before the day of the
accident. The accident occurred around 11 am on June 20, 2008. Ms. Iwanik was
driving her 2001 Pontiac Sunfire car about 25 km/hr and was wearing her lap and
shoulder belt.

[65]       
Ms. Hayes was driving the 1997 Chevrolet Blazer which belonged to her
common law spouse, Mr. Campbell. Her two youngest children, who were then about
one and three and one-half years old respectively, were passengers. She was
travelling north on Josephine St., intending to turn left onto Front St. She
came to stop at a stop sign, and saw Ms. Iwanik’s vehicle. Ms. Hayes mistakenly
thought that Ms. Iwanik was signalling to turn right onto Josephine. Ms. Hayes
proceeded to turn left onto Front St. The Blazer’s left front corner struck the
passenger side of Ms. Iwanik’s car around the front wheel. Ms. Hayes was
travelling under 25 km/hr at the time of impact.

[66]       
Ms. Iwanik saw the Blazer just moments before the impact, and applied
her brakes. Ms. Iwanik struck her head on the left window and her package of
cigarettes fell to the floor. The air bag in Ms. Iwanik’s vehicle did not
deploy.

[67]       
Both Ms. Iwanik and Ms. Hayes told each other at the scene that they
were not injured.

[68]       
Ms. Iwanik walked from the scene without difficulty. She saw her
chiropractor, who made a minor adjustment to her neck and shoulders. Her doctor
was not in his office, so she went to the hospital. When she was advised that
the wait to be examined would be three to five hours, she went to a walk-in
clinic. She was examined and told that she had not broken any bones, and was
advised to see her own doctor as soon as possible.

[69]       
Ms. Iwanik noticed a red mark on her left upper chest, which she assumed
was from the seatbelt. She did not report any loss of consciousness. She had no
recollection of hitting her left knee during the accident.

[70]       
Ms. Iwanik’s vehicle was “written off”, meaning that her insurer
concluded that the cost of repair exceeded the value of the vehicle.

[71]       
The collision destroyed the Blazer’s left front light assembly. The
Blazer was towed from the scene and repaired at a cost of about $2,000.

 c) Following the accident of June 20, 2008

[72]       
Ms. Iwanik took one day off work because of the accident, and after
that, continued working at the Nelson 7-Eleven Store. She has not worked any
shifts as a matron in the city jail since the accident.

[73]       
Ms. Iwanik completed a pain diagram on June 23, 2008. She indicated pain
in her head and neck and back, but did not indicate knee pain.

[74]       
Ms. Iwanik was not able to get an appointment with the office of her
family doctor, Dr. Bridger, until June 24. She went to his clinic that day and
was seen by his locum. By this time, she was very sore in her neck, shoulders,
back and hip areas. The locum physician recorded that Ms. Iwanik had muscle
spasms throughout her cervical, thoracic, and lumbar spine and her sacroiliac
area.

[75]       
Ms. Iwanik was able to see Dr. Bridger several weeks after the accident.
He  recommended that she receive treatment from her massage therapist,
chiropractor, and accupuncturist. Ms. Iwanik has done so for as long as she
felt she could afford it. She found that the treatment relieved her symptoms,
but did not cure them, and did not relieve them enough that she could work
comfortably at 7-Eleven. She continued to receive treatment for as long as she
felt she could afford to do so.

[76]       
Ms. Iwanik was treated by her chiropractor four times in June 2008, all
of them following the accident.

[77]       
Ms. Iwanik found that after the accident, she had difficulty standing
for more than 10 minutes at a time and difficulty sitting, and that her back
was particularly painful. The pain in her back got progressively worse. She
found that she was not able to keep up with the demands of her work at
7-Eleven, and that she was asking other staff to assist her, and taking longer
than eight hours to complete her work. Having worked as manager of the Nelson
7-Eleven Store, she knew that it did not have positions available that would
eliminate the long hours of standing and doing physical work, and she did not
ask anyone whether 7-Eleven could have provided her with work which would
accommodate her difficulties.

[78]       
Ms. Iwanik’s neck and thoracic spine were x-rayed in late June and early
July 2008. The neck x-ray showed some straightening of the normal curve due to
muscle spasm. The thoracic spine x-ray was suspicious for decreased bone
density and for several minor compression fractures which could be either
long-standing or acute.

[79]       
In July 2008, Ms. Iwanik had four chiropractic treatments and one
massage therapy treatment.

[80]       
In August, 2008, Ms. Iwanik had four chiropractic treatments and two
massage therapy treatments. The acupuncturist’s records show Ms. Iwanik
reported a concern about her left knee in August 2008.

[81]       
Dr. Bridger examined Ms. Iwanik on August 29, 2008 and found that she
had reduced neck rotation and had a full complement of active trigger points at
the base of her skull, in her trapezius muscles, over her sacroiliac joints and
over her greater trochangers. Ms. Iwanik reported that she could not tolerate
the standing at work at 7-Eleven and had given her notice. Dr. Bridger
recommended weekly chiropractic and massage therapy, and acupuncture therapy
once to twice per week.

[82]       
By late August 2008, Ms. Iwanik concluded that she could not perform her
duties at 7-Eleven. She resigned from 7-Eleven on August 29, 2008 effective
September 13, 2008. She reported the reason as “personal reasons”. I accept her
evidence that she resigned because of the degree of pain she experienced,
particularly when standing, and that she felt she was not able to do her work
adequately. Her last day of work was September 10, 2008.

[83]       
In September 2008, Ms. Iwanik received four chiropractic treatments and
one massage therapy treatment. Dr. Taylor’s records include a reference to Ms.
Iwanik reporting left knee discomfort in September and October 2008.

[84]       
Since October 1, 2008, Ms. Iwanik has been working at the Nelson Husky
gas station. She continued to work in that job at the time of trial. Her
employer is accommodating, and has arranged the work so that she can vary her
positions from sitting to standing or walking. She earns $31,000 per year. She
does not have a medical plan. She works full-time, working from 4:30 am until 2
or 3 pm. There is no opportunity for advancement in this position.

[85]       
If Ms. Iwanik were able to get hours at the Nelson Husky gas station
which permitted her to work at the city jail, she would do so, but her existing
shift does not enable that.

[86]       
Around October 2008, Ms. Iwanik purchased a home in Nelson, B.C. with
her younger daughter, Ms. Baird, and Ms. Baird’s husband. Four people, Ms.
Iwanik, Ms. Baird, Ms. Baird’s husband, and Ms. Baird’s daughter, moved into
the house in October or November 2008.

[87]       
In October 2008, Ms. Iwanik received four chiropractic treatments and
two massage therapy treatments. On October 13, 2008, the massage therapist’s
records show that Ms. Iwanik reported that her left knee pain was debilitating.

[88]       
In November 2008, Ms. Iwanik did not receive any chiropractic or massage
therapy treatments.

[89]       
In December 2008, Ms. Iwanik received one massage therapy treatment.

[90]       
The annual sales of the Nelson 7-Eleven Store in 2008 were less than
they had been in 2007.

[91]       
Ms. Iwanik’s earnings in 2008 were about $33,800. In addition, she
received employment insurance benefits and redeemed RRSPs.

[92]       
Ms. Iwanik continued working at Husky throughout 2009. She received the
following treatments in 2009:

a)           
January:  two chiropractic treatments and one massage therapy treatment;

b)           
February:  three chiropractic treatments;

c)           
March:  one chiropractic and one massage therapy treatment;

d)           
April:  three chiropractic treatments;

e)           
May:  two chiropractic treatments and two massage therapy treatments;

f)            
June:  one chiropractic treatment;

g)           
July:  two chiropractic treatments;

h)          
August:  one chiropractic treatment; and

i)            
September:  one massage therapy treatment.

[93]       
Ms. Iwanik did not receive any chiropractic or massage therapy
treatments in the period October through December 2009.

[94]       
On April 27, 2009, Dr. Bridger did a more extensive review of Ms. Iwanik’s
condition. Ms. Iwanik reported ongoing low back pain and difficulty standing at
work, doing housework, and walking. Dr. Bridger found that Ms. Iwanik had a
reduced range of motion in her neck and a full complement of active trigger
points. Dr. Bridger recommended ongoing weekly chiropractic and acupuncture
therapy, and monthly massage.

[95]       
In October 2009, the existing manager of the Nelson 7-Eleven Store left
the position, and there was an immediate opening for that position. Ms. Iwanik
did not apply, believing that she could not perform the job physically. If she
had still been employed by 7-Eleven and had applied, she would have been
considered. The successful candidate, Ms. Leathard (formerly Bath), had
previously been a manager of the Nelson 7-Eleven Store and of other 7-Eleven
stores. Ms. Leathard had spent more time on the job as a store manager than Ms.
Iwanik. Ms. Leathard had been away from work on a disability leave and returned
to 7-Eleven to take the position.

[96]       
The annual sales of the Nelson 7-Eleven Store in 2009 were less than
they had been in 2008.

[97]       
Ms. Iwanik’s earnings in 2009 were about $31,200 in respect of her work
at the Husky gas station.

[98]       
In 2010, Ms. Iwanik did not receive any chiropractic treatments. She
received only one massage therapy treatment, which was in August 2010.

[99]       
In July 2010, Dr. Bridger referred Ms. Iwanik to an orthopedic surgeon
for clarification of the diagnosis of her left knee pain.

d)        At trial

[100]     7-Eleven
has over 37,000 stores in 18 different countries. It has 151 stores and over
2,000 employees in British Columbia. Sixty-three of the stores are in the lower
mainland area of B.C., from Chilliwack to Whistler. Twenty-five stores are on
Vancouver Island. Some store managers earn as much as $100,000 per year,
although that is exceptional.

[101]     7-Eleven
takes pride in employees who have left the company on good terms, and where
possible, it tries to re-hire them. 7-Eleven’s records described Ms. Iwanik as
being eligible for re-hire.

[102]     7-Eleven
does not have mandatory retirement. At the time of trial, it had about 20 to 25
employees in B.C. who were over the age of 70, but none of them were store
managers.

[103]     The manager
of the Nelson 7-Eleven Store was still Ms. Leathard. Her partner lives in
Revelstoke, B.C., and she would like to move there if she can obtain a position
managing the Revelstoke 7-Eleven store. The sales of the Nelson 7-Eleven Store
were improving in 2010 from 2009.

[104]     At the
time of trial, 7-Eleven did not have any immediate openings for store managers
anywhere in B.C., except possibly one or two in the lower mainland. However, it
had openings for store manager trainees, including a posting in Nelson, B.C.

[105]     When Ms.
Iwanik was the manager of the Nelson 7-Eleven her immediate supervisor was the
“field consultant”. Her field consultant considered Ms. Iwanik to be honest,
trustworthy, dependable, and a good manager. In his opinion, she worked too
hard and needed to delegate more work. He did not think she would be likely to
become a 7-Eleven field consultant because of the need to handle multiple
stores and because of the travel required.

[106]     The
performance appraisals that 7-Eleven kept regarding Ms. Iwanik’s performance
when she worked at 7-Eleven indicated that she was a valuable employee.

[107]     7-Eleven’s
main office is in Surrey, B.C., where it has employees working in less physically
demanding positions than store manager, such as office jobs.

[108]     By the
time of trial, Ms. Iwanik had not been able to see the orthopedic surgeon that
Dr. Bridger had referred her to for her left knee problem.

[109]     At the
time of trial, Ms. Iwanik was continuing to work full-time for Husky. Ms.
Iwanik was not obtaining any treatment from her chiropractor or massage
therapist, and believed that her symptoms were becoming worse. Her principal
symptoms are pain in her neck, back and left leg. The treatments from her
chiropractor cost $35 per session, and from her massage therapist and
acupuncturist, $60 to $70 per session. If she could afford it, Ms. Iwanik would
go to her chiropractor two or three times a week, and at least once a week to
the others.

[110]     At the
time of trial, Ms. Iwanik was living with her younger daughter, Ms. Baird, and
Ms. Baird’s husband and 20 year old daughter. Ms. Iwanik finds that she can
only shovel snow for about 10 minutes. She is able to do light gardening for 20
minutes at a time in an elevated garden. Ms. Baird assists Ms. Iwanik by
carrying laundry up and down steps, and usually helps Ms. Iwanik with
housework.

[111]     Ms. Iwanik
will still do baking, but only for short periods of an hour or two. She can
still do chores, but not as well or for as long. She feels that she is not
contributing her fair share to the chores, and finds that frustrating. She
estimates that her children spend 20 to 30 hours per month doing chores that
Ms. Iwanik would otherwise have done for herself, including laundry, housework,
grocery shopping, shovelling snow, and carrying heavy articles upstairs.

[112]     Ms. Iwanik
no longer handles the annual cancer society bake sale or assists her elderly
neighbour, and she misses those activities.

[113]     Since the
accident, Ms. Iwanik has been suffering from pain, fatigue and a dampened sense
of humour. Now she goes for walks only when the weather is good, only for 20
minutes at a time, stopping because she is tired and her knee hurts.

[114]     Ms. Iwanik
does not have current plans to retire. She plans to work until she can no
longer do so effectively.

[115]     Ms. Iwanik
has not explored the possibility of obtaining work outside of Nelson, B.C.
since the accident. She did not inquire whether 7-Eleven had any positions
available which would involve less standing and less physical work. There are
few such positions, and most of them are in Surrey, B.C.

[116]     Ms. Iwanik
has about $50,000 in RRSP investments and about $50,000 in equity in the home
she purchased with her younger daughter, Ms. Baird. She does not have any
private pension.

[117]     Ms. Iwanik
testified that she would have been willing to move to any community except a
big city in order to work as a manager for 7-Eleven. She would be particularly
interested in moving to a community near Nelson, like Castlegar, Trail,
Creston, Fernie or Sparwood.

[118]     Ms. Iwanik
continues to smoke about one package of cigarettes a day. Her efforts to quit
have been unsuccessful.

Medical evidence

[119]     Ms. Iwanik
relied on the evidence of Dr. Bridger, who has been her family physician for 12
years. The defence relied on the evidence of Dr. O’Farrell, orthopaedic
specialist, which was based on his examination of Ms. Iwanik about two years
after the accident.

a)         Dr. Bridger, family physician

[120]     Dr.
Bridger was accepted as able to give opinion evidence in the field of family
medicine. His opinion was based on his examinations of Ms. Iwanik, including
taking her history, and the clinical notes of other doctors who acted as locums
for him.

[121]     Dr.
Bridger diagnosed Ms. Iwanik with the following:

a)         probable minor
compression fracture of her T12 vertebra;

b)         minor head injury with
probable minor concussion (resolved);

c)         soft tissue injuries to
the neck, thorax and lumbar spine aggravating her pre-existing fibromyalgia
pain syndrome;

d)         left knee patellofemoral
pain syndrome and possible internal derangement in the medial compartment of
the left knee; and

e)         intermittent and
sporadic muscle contraction headaches associated with soft tissue injuries to
the neck and shoulders.

[122]     In Dr.
Bridger’s opinion, the accident caused a sustained and prolonged exacerbation
of Ms. Iwanik’s fibromyalgia. In his opinion, the injuries resulted in Ms.
Iwanik terminating her employment at the Nelson 7-Eleven Store. Dr. Bridger
wrote that he could not clearly foresee a resolution of Ms. Iwanik’s pain
syndrome, and that in any event, it would be susceptible to flare-ups at times
of physical and psychological stress.

[123]     In Dr.
Bridger’s opinion, COPD can be progressive, and is characterized by increased
shortness of breath as the condition progresses. In his opinion, a person with
COPD who continues to smoke is more likely to suffer increased COPD.

b) Dr. O’Farrell, orthopaedic surgeon

[124]     Dr.
O’Farrell was accepted as able to give opinion evidence in the field of
orthopaedic medicine, including the diagnosis, treatment, and progress of
conditions of the body including the bones, muscles and soft tissues. His
opinion was based on his assessment of Ms. Iwanik on May 10, 2010, being almost
two years following the accident, and on his review of clinical records
relating to Ms. Iwanik. His assessment of Ms. Iwanik lasted less than 45
minutes, and he made only one page of notes.

[125]     Dr.
O’Farrell’s written opinion stated that Ms. Iwanik was complaining of symptoms
of neck and back pain that she had prior to the accident. In his opinion most
of her symptoms and any treatment for them would not be related to the
accident. In his opinion, it is not clear whether the knee symptoms are related
to the accident. He recommended physiotherapy and an exercise program. He did
not think that Ms. Iwanik required further chiropractic, massage, or
acupuncture therapy. In his opinion, she had not been affected by the motor
vehicle accident in her work abilities.

[126]     Dr.
O’Farrell agreed under cross-examination that the extent and severity of Ms.
Iwanik’s complaints were quite different before the accident than they have
been since. He testified that the complaints were the same, but the severity
subjectively was worse.

ANALYSIS

[127]    
The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.) is
often cited as a reminder of the approach the court must take to assessing
injuries which depend on subjective reports of pain.  At 397-399 of the reasons
for judgment, Chief Justice McEachern wrote:

The assessment of damages in a moderate or moderately severe
whiplash injury is always difficult because plaintiffs, as in this case, are
usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

…

Perhaps no injury has been the subject of so much judicial
consideration as the whiplash. Human experience tells us that these injuries
normally resolve themselves within six months to a year or so. Yet every
physician knows some patients whose complaint continues for years, and some
apparently never recover. For this reason, it is necessary for a court to
exercise caution and to examine all the evidence carefully so as to arrive at a
fair and reasonable compensation. Previously decided cases are some help (but
not much, because obviously every case is different).

…

In Butler v. Blaylock, decided 7th October 1981,
Vancouver No. B781505 (unreported), I referred to counsel’s argument that a
defendant is often at the mercy of a plaintiff in actions for damages for
personal injuries because complaints of pain cannot easily be disproved. I then
said:

 I am not stating any new principle when I say that
the court should be         exceedingly careful when there is little or no
objective evidence of          continuing injury and when complaints of pain
persist for long periods    extending beyond the normal or usual recovery.

 An injured person is entitled to be fully and
properly compensated for         any injury or disability caused by a
wrongdoer. But no one can expect     his fellow citizen or citizens to
compensate him in the absence of    convincing evidence, — which could be just
his own evidence if the       surrounding circumstances are consistent – that
his complaints of   pain are true reflections of a continuing injury.

[128]     Ms.
Iwanik’s complaints are substantially subjective complaints of pain.

[129]     Ms.
Iwanik’s evidence about the extent of her injuries was reliable. She tended to
be stoic, and to minimize her reports of pain. Her memory of her symptoms at
particular points in time and of the therapy she underwent was sometimes poor,
but she did not exaggerate her symptoms. The clinical records provided helpful
records of her condition from time to time.

[130]     Before the
accident, Ms. Iwanik was a dedicated worker. She had a long history of working
more than full-time hours. She had a history of neck and back pain,
fibromyalgia, and COPD. Hey fibromyalgia would flare up periodically, particularly
in the period when her daughter was undergoing cancer treatment. She did not
have any complaints of problems with her knees. She suffered enough pain in her
neck and back that she underwent treatments relatively regularly from a
chiropractor and massage therapist, but she did not take time off from work as
a result of any of these complaints. She performed physically demanding work at
7-Eleven for long hours, took hour-long walks most days, gardened, and looked
after herself and her home without difficulty.

[131]     The
defendant is only responsible for any increased aggravation of Ms. Iwanik’s
pre-existing problems. That is because Ms. Iwanik is only entitled to an award
of damages which will theoretically restore her to her pre-accident condition.
She is not entitled to recover a sum which represents a complete recovery,
because she was not a completely healthy person at the time of the accident.

[132]     As
a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck,
thorax and lumbar spine, causing a prolonged and sustained exacerbation of her
fibromyalgia, and causing intermittent headaches. If the
accident had not occurred, her fibromyalgia would have flared up periodically,
but not enough to have restricted her from her from work or her other
activities.

[133]     As a
result of the accident, Ms. Iwanik also suffered an injury to her left knee,
which caused patellofemoral pain syndrome. It may have caused other problems in
her knee, but the evidence at trial did not establish anything further.
Although there is no record of Ms. Iwanik reporting the knee pain to treatment
providers until August, 2008, I accept her evidence that she was initially more
focussed on her other pain, and thought that the knee pain would resolve.

[134]     I accept
Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor
compression fracture of her T12 vertebra, and that she suffered a minor head
injury with a probable minor concussion which has resolved. However, both of
those injuries resolved so quickly that they do not affect the assessment of
damages in this case.

[135]     As a
result of the injuries she suffered in the accident, Ms. Iwanik is no longer
able to work at a physically demanding job, and is not capable of working in a
7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which
can accommodate her abilities. However, the job is not as well-paid as her work
as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136]     As a
result of the injuries she suffered in the accident, Ms. Iwanik is no longer
able to engage in hour-long walks, or to carry heavy items such as laundry and
groceries, or to garden for more than 20 minutes at a time in an elevated
garden bed. She is no longer able to contribute to her family and community to
the extent she previously did.

a) Non-pecuniary damages

[137]     The
purpose of an award for non-pecuniary damages is to provide solace to Ms.
Iwanik for such things as pain, suffering, inconvenience, and loss of enjoyment
of life. Non-pecuniary losses are the personal injury losses that have not
required an actual outlay of money. One purpose of an award for damages for
non-pecuniary losses is to substitute other amenities for those that Ms. Iwanik
has lost. The award must address losses Ms. Iwanik suffered not only to the
date of trial, but also those that she will suffer in the future.

[138]     Non-pecuniary
losses have no objective ascertainable value, because there is no market in
health and happiness. It is generally not possible to put a claimant back in
the position she would have been in had the injury not occurred, and this is
especially true of non-pecuniary loss. The Court must fix a sum that is tailored
to Ms. Iwanik, and that is moderate but fair and reasonable to both parties,
keeping in mind that Ms. Iwanik will be fully compensated for her future care
needs and other pecuniary losses. The Court does not try to assess a sum for
which Ms. Iwanik would have voluntarily chosen to suffer such pain,
inconvenience, and loss of enjoyment of life.

[139]     Awards in
other cases can provide some assistance, but each case varies depending on its
facts.

[140]     Mr. Lahay
argued on behalf of Ms. Iwanik that an appropriate award for non-pecuniary
damages would be $70,000. He relied on these cases: Bove v. Lauritzen,
2009 BCSC 1698; Jackson v. Rooney, 2007 BCSC 761; and Larlee v. Shier,
2008 BCSC 1610.

[141]     Ms.
Walford argued on behalf of the defence that an appropriate award for non-pecuniary
damages would be $30,000 to $50,000. She relied on these cases: Penland v.
Lofting, 2008 BCSC 507; Hamilton v. Vance, 2007 BCSC 1001; Verhnjak
v. Papa, 2005 BCSC 1129; Iliopoulous v. Abbinante, 2008 BCSC 336; Perren
v. Lalari, 2008 BCSC 1117; and Ufimzeff v. Brown, 2008 BCSC 1188.

[142]     In all the
circumstances, an appropriate award is $50,000.

b) Past lost income

[143]     Ms. Iwanik
claims about $25,600 for past income loss from the June 30, 2008 accident until
the November commencement of the trial. The defence position is that $112 is
the proper award.

[144]     Ms. Iwanik
claims about one month’s lost earnings in 2008.

[145]     Ms. Iwanik
lost a day’s work immediately following the accident. She then stopped working
in her part-time position for 7-Eleven effective September 10, 2008, and
started working full-time at the Husky station on October 1, 2008. Ms. Iwanik is
entitled to compensation for the three weeks of lost work net of income tax.
She is entitled to $2,400 for her loss in 2008.

[146]     Ms. Iwanik
does not make a claim for past wage loss for the period from October 1, 2008 to
October 2009.

[147]     With
respect to the period from October 2009 to trial, Ms. Iwanik’s claim raises the
difficult question of what employment she likely would have engaged in if the
accident had not occurred. An unusual feature of this case is that, prior to
the accident, Ms. Iwanik was working for 7-Eleven as a senior sales associate,
but she had previously worked for 7-Eleven as a store manager, and had left
that position on good terms.

[148]     Ms. Iwanik
chose to leave her position as manager because of an ill-considered reaction to
a change in the bonus structure, and then because of her daughter’s illness.
However, by the time of the accident, Ms. Iwanik wanted to work full-time, and
wanted to work for 7-Eleven. If the accident had not occurred, Ms. Iwanik would
likely have pursued a promotion to a 7-Eleven store manager.

[149]     There was
an opening for store manager of the Nelson 7-Eleven Store in October 2009. Ms.
Iwanik would have sought that position if she had not been injured in the
accident. There is a real possibility that she would have obtained the
position, because of her recent success as manager of that store. However, Ms.
Leathard would likely have competed for the position, and may have been the
successful candidate.

[150]     On
balance, it is appropriate to apply a contingency of 50% to the likelihood that
Ms. Iwanik would have been hired as manager of the Nelson 7-Eleven Store in
October 2009.

[151]     Ms.
Iwanik’s income at Husky is about $31,000 per year. Her income as manager of
the Nelson 7-Eleven Store cannot be established with precision, because of the
bonus component. However, a fair estimate of her likely income in that position
is $57,000, being about the average of her earnings in 2006 and 2007.

[152]     If Ms.
Iwanik had worked as manager of the Nelson 7-Eleven Store for the year prior to
trial, she would likely have earned about $26,000 more than she earned in fact.
Applying the contingency factor of 50% to that figure results in $13,000.
Assuming a marginal tax rate of 17%, her award net of taxes for that one-year
period is $10,800.

[153]     Ms. Iwanik
is entitled to an award of $13,200 ($2,400 plus $10,800) in respect of her loss
of income prior to trial net of income tax.

c) Lost future earning capacity

[154]    
Ms. Iwanik argued that she should recover $150,000 for lost future
earning capacity. The defence argued that she was not entitled to any award for
lost future earning capacity.

[155]    
The factors relevant for assessing the value of lost future earning
capacity are set out in Brown v. Golaiy (1997), 26 B.C.L.R. (3d) 353 (S.C.)
at para 8:

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.

[156]    
In Reilly v. Lynn, 2003 BCCA 49 at paras. 100-101, Low and Smith
JJ.A. summarized the approach to assessing lost earning capacity as follows:

[100]    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?

[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.) (Q.L.).  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…

[Emphasis added by Low and Smith JJ.A.]

[157]     Ms.
Iwanik’s claim for future lost earning capacity raises the questions of what
employment she would have obtained and for how long if the accident had not
occurred.

[158]     As
discussed above, there is a real possibility that Ms. Iwanik would have become
the manager of the Nelson 7-Eleven Store in October 2009. There is also a real possibility
that she may have obtained that position after October 2009, such as if Ms.
Leathard moved to join her partner in Revelstoke. Even if Ms. Iwanik did not
obtain the position in Nelson, there is a real possibility that she would have
become a store manager for 7-Eleven at another location in B.C., outside of an
urban area. Ms. Iwanik was willing to work in Dawson Creek for a month in 2006.
Although both her daughters and their children live in Nelson, B.C., Ms. Iwanik
had a long history of hard work and had moved from time to time. She would have
been more likely to move to a store in the Kootenay area, but there is also a
real possibility that she would have moved outside the Kootenays.

[159]     There are
negative contingencies as well. 7-Eleven may have closed some or all of its
stores, or reduced the bonuses payable. Ms. Iwanik may have chosen to stop
working or to change jobs.

[160]     Ms. Iwanik
argued that she would have worked as long as she was able. The position of the
defence is that she would likely have retired at the age of 65, or shortly
thereafter.

[161]     Ms. Iwanik
enjoyed the social aspect of her job at the Nelson 7-Eleven Store, and enjoyed
the income. She does not have a pension, and the total value of her assets
available to support her during retirement is about $100,000.

[162]     On
balance, it is most likely that Ms. Iwanik would have and will continue to work
until it becomes too taxing physically. She suffers from COPD, and had
pre-existing fibromyalgia. The effect of the accident is that she cannot sit or
stand for lengthy periods, and is restricted in the work she can do. However,
the accident did not affect the age to which she is likely to be able to work.

[163]     It is
likely that Ms. Iwanik will stop working full-time when she reaches about 68
years of age, and that she will continue to work part-time until she is about
70 years old.

[164]     If Ms.
Iwanik had obtained a position of manager of a 7-Eleven Store, she would likely
have earned about $26,000 per year more than she is presently earning at Husky.

[165]     The present
value multiplier for future income loss from the date of trial to Ms. Iwanik’s
70^th birthday is 5.889. Applying that multiplier to $26,000, the
present value of the increased amount that Ms. Iwanik would have earned is
about $153,000.

[166]     It is
appropriate to adjust that figure by 65% to take into account the various
contingencies. Those include the negative contingencies that, even if the
accident had not occurred, Ms. Iwanik would not have obtained a manager
position, or would have earned less than estimated in such a position, or would
have stopped working in that position for some reason and taken a more
poorly-paid position, or would have stopped working full-time before she
reached the age of 70. The positive contingencies include the possibility that,
if the accident had not occurred, she would have earned more than estimated as
a 7-Eleven manager or in some other position, and would have worked past the
age of 70. Using the 65% factor results in a figure of about $100,000.

[167]     Damages
must be assessed, not calculated, and must be fair to both parties.

[168]     A fair
award for Ms. Iwanik’s lost earning capacity is $100,000.

d) Cost of future care

[169]     Ms. Iwanik
claims $10,400 for the cost of future care. That is based on two years of
weekly treatments, alternating between a chiropractor and a massage therapist.

[170]     The
defence argued that Ms. Iwanik should not receive an award for the cost of
future care, on the basis that she needs the same amount of therapy after the
accident as she did before.

[171]     Ms.
Iwanik’s condition flared in early 2008, probably as a result of her daughter’s
serious illness. Around that time, Ms. Iwanik received a significant amount of
treatment, and more than she had in the prior years. Even so, Ms. Iwanik
received about twice as many chiropractic treatments per month in the four
months following the accident as she received in the 10 months prior to the
accident.

[172]     On
balance, the evidence shows that as a result of the accident, Ms. Iwanik needs
about two chiropractic treatments and one massage therapist treatment per month
more than she required before the accident. It is reasonable for the award to
reflect two years of treatments. Using the figure of $35 per treatment for the
chiropractor, and $70 per treatment for the massage therapist, Ms. Iwanik needs
$140 per month in treatment resulting from the accident. For two years, the
total is about $3,400.

[173]     Ms. Iwanik
is entitled to an award of $3,400 for the cost of her future care arising from
the accident.

e) In-trust/housekeeping claim

[174]     Ms. Iwanik
testified that her family members spend 20-30 hours per month performing
housekeeping services for her. She claims $4,500 per year, on the basis of 25
hours of work at $15 per hour.

[175]     The
defence argued that Ms. Iwanik does not require housekeeping services. The
defence argued that the fact that Ms. Iwanik continued to live by herself for
the period from the accident on June 20, 2008 until October 2008 demonstrates
that she did not need housekeeping assistance then, and does not need it now.

[176]     The law of
“in trust” claims is set out in Bystedt v. Hay, 2001 BCSC 1735 at para.
180, aff’d 2004 BCCA 124. The six relevant factors are:

a)         the services provided must replace
services necessary for the care of the plaintiff as a result of a plaintiff’s
injuries;

b)         if the services are rendered by
a family member, they must be over and above what would be expected from the
family relationship;

c)         the maximum value of such services
is the cost of obtaining the services outside the family;

d)         where the opportunity cost to
the care-giving family member is lower than the cost of obtaining the services
independently, the court will award the lower amount;

e)         quantification should reflect
the true and reasonable value of the services performed taking into account the
time, quality and nature of those services; and

f)          the family members providing
the services need not forego other income and there need not be payment for the
services rendered.

[177]     Ms. Iwanik
was able to continue to live alone for almost four months following the
accident only because she pushed herself, and did not do everything she would
have done if the accident had not occurred. The accident occurred in June, and
so Ms. Iwanik did not need to shovel snow in the period shortly following the
accident.

[178]     Ms. Iwanik
is no longer able to shovel snow, or carry heavy items like groceries and
laundry. Fortunately, her family members are able to give her assistance.

[179]     I accept
that Ms. Iwanik’s family members are spending about 25 hours per month in
assisting her with heavier chores. Of that, 10 hours per month, being 120 hours
per year, are over and above what would be expected from the family
relationship, and work for which Ms. Iwanik might pay for assistance if her
family were not assisting her. The figure of $15 per hour, being $1,800 per
year, is a reasonable figure for the value of the services performed.

[180]     Ms. Iwanik
may have needed such assistance as she grew older even if the accident had not occurred.
It is appropriate to use the multiplier relevant for the cost of future care
until Ms. Iwanik reaches the age of 70, which is about seven years following
the end of the trial. The present value multiplier for seven years at the 3.5%
discount rate is 6.1145. Applying that multiplier to $1,800 per year, the total
is about $11,000.

[181]     Considering
the contingency that Ms. Iwanik might have required increasing assistance as
she aged even without the accident, a fair award for the in-trust claim is $10,000.

f) Special damages

[182]     As
discussed above, the parties agreed that Ms. Iwanik is entitled to $1,976.31
for special damages.

SUMMARY

[183]     In
summary, Ms. Iwanik is entitled to an award of $178,576.31, consisting of the
following:

 a) $50,000 for non-pecuniary damages;

 b) $13,200 for past lost income net of income
tax;

 c) $100,000 for lost future earning capacity;

 d) $3,400 for the cost of future care;

 e) $10,000 for an in-trust/housekeeping claim;
and

 f) $1,976.31 for special damages.

[184]    
Both parties advised that they were likely to seek to make submissions
on costs after the release of the reasons for judgment. If the parties are
unable to agree on the question of costs, they should arrange a hearing before
me through the Registry.

“V. Gray J.”