IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110915

Docket: S18732

Registry:
Chilliwack

Between:

Marnetta Lynn
Felix

Plaintiff

And

Kevin Terrance
Hearne, Deceased and
The Estate of Kevin Terrance Hearn, Deceased

Defendants

Before:
The Honourable Mr. Justice Grist

Reasons for Judgment

[1]          
The plaintiff was injured in a vehicle roll-over on July 8, 2006. The
evidence heard during this proceeding was that she was driving east on Highway
No. 1 near Langley, when her boyfriend, Mr. Hearne, grabbed the steering
wheel causing the vehicle to leave the highway and overturn. Mr. Hearne
was killed in the collision.

[2]          
No appearance to this action has been filed on behalf of Mr. Hearne’s
estate. Notice has been given to the Insurance Corporation, but they have
declined to participate. Interlocutory judgment was pronounced by Mr. Justice
Joyce on June 8, 2009, with damages to be assessed. This proceeding dealt with
the quantum assessment.

[3]          
Ms. Felix was 44 years of age at the time of the collision. She was
self-employed as a verbatim reporter, recording court and other proceedings.
She has twin daughters, who resided with her at her home in Chilliwack.

[4]          
Ms. Felix is of native heritage. She was the fifth of six children born
to her mother and father, residents of the Chahalis Reserve near Agassiz. Her
evidence was that her father and mother were very strict in seeing that their
children obtained an education to enable them to become self-supporting. In
other respects, the family were involved in a number of sporting activities. Her
father had played in the Pacific Coast Soccer League and a number of the
children, including Ms. Felix, excelled at this sport. After high school, Ms.
Felix followed the example of an older sister who had taken training and
obtained work as a court reporter in Calgary. Ms. Felix entered a training
program at Langara College, finishing in December 1982. She was then certified
by the British Columbia Shorthand Reporters Association.

[5]          
Ms. Felix’s twin daughters were born in December 1980. Ms. Felix has largely
raised them on her own since they were 6 years of age. After she completed her
training, she did not immediately take work as a reporter because the work was
not available near Agassiz, where she lived. Instead, she worked at various
secretarial jobs. However, in 1986, she took a refresher course and
recertified. She worked for a time with a reporting office in Vancouver and
then with National Defence in Chilliwack. She also worked on and off, doing whatever
contract reporting work she could obtain near Chilliwack.

[6]          
In 1999, she took an upgrade to qualify in real time reporting, which
allows for transcripts to be prepared directly from the reporting machine. From
the time she became skilled in this she was employed full-time as a court
reporter, at times working for her sister in Calgary, travelling back and forth
to Calgary when work was available for her there. In other respects, most of
her work was in the eastern Fraser Valley and included court proceedings,
examinations for discovery and depositions. She also worked for various native
organizations preparing transcripts of Band meetings and meetings with the
Department of Fisheries. She found this particularly challenging work because
of the number of people participating and the pace of ongoing discussion.

[7]          
Early in 2006, Ms. Felix’s sister was able to secure an Energy Board
contract in Calgary, which made her responsible for covering Energy Board
hearings and preparing transcripts for the participants. These hearing were
held in outlying communities and involved a number of participants, who in most
part wanted same-day transcripts of the proceedings. This work is very
demanding but, at the same time, very remunerative. The proceedings are taken
down on a transcription machine which inputs to a laptop computer. The text is
then read, edited and printed. Once in transcript form, the transcripts are
sold to the participants who pay a premium for early delivery. The
transcription service involves a team approach, with the reporter being the
pivotal and the best paid participant. Ms. Felix’s sister knew her sister was a
capable reporter and asked her to work for her during the 2006 fall Energy
Board hearings. She was expected to begin work in August or September of 2006.

[8]          
Ms. Felix has participated in a senior women’s soccer league since she
was a teenager. She was regarded as one of her team’s best players. In 2006,
she was 44 years of age and continued to play with and against women much
younger than herself. She was also involved in recreational sports, ball hockey
and baseball. Much of her social and family life revolved around these sports
activities. Both of her daughters played on the soccer team with their mother.
By 2006, her two daughters were able to leave home and she was planning to sell
her Chilliwack house to move to Penticton to continue her relationship with Mr.
Hearne. She expected to be able to commute from Penticton to the Energy Board
hearings in Alberta when required and to otherwise take work as a court reporter
in the Okanagan.

[9]          
On the day of the collision, Ms. Felix had been to a soccer tournament
in the Langley area. She had played two games and worked at the concession
stand. The collision occurred on Highway No. 1 just west of Abbotsford, as she
and her boyfriend returned home. The car veered to the right, left the
pavement, overturned on the grass embankment and came to rest against a chain mail
fence. Ms. Felix was able to crawl out of the broken window of the overturned
vehicle and was taken to the hospital in Abbotsford. She received multiple
injuries, but no fractures were found after a number of x-rays of various parts
of her body. Ultimately, she was released and allowed to return home later that
evening. Injuries noted in the medical reports at the hospital and during
subsequent visits to her family doctor included injury to her neck and back;
her left shoulder, elbow and wrist; her pelvis; and her left knee and ankle.
During the course of the subsequent treatment, ligament tears were noted in the
area of her left rotator cuff and her left ankle, along with an injury to the cartilage
in her left wrist and to her ulnar nerve. The last, resulting in numbness and
tingling in the outer fingers of her left hand. She also sustained a concussion
in the vehicle rollover.

[10]       
Her first visit to her family doctor was the day following the
collision. He noted complaints of significant headache; neck pain between her
shoulder blades; and multiple bruises on her arms and legs. She also was
extremely distraught over the death of her boyfriend. She was seen at regular
intervals thereafter. She began physiotherapy at the end of July and began to
be investigated for Post Traumatic Stress Disorder [PTSD], early in August
2006. She attended and completed a work hardening program in the fall of 2006
and was referred to Dr. Hope, a psychiatrist, in respect of ongoing emotional
distress in the fall of 2006. Dr. Hope put her on anti-depressant medication
and she has since received ongoing psychological therapy.

[11]       
Ms. Felix has also been subject to recurrent headaches, tinnitus and
loss of equilibrium since the collision. The first seems associated with her
neck and back pain. The latter two with the concussion.

[12]       
Over the next year, Ms. Felix tried to reacquire her typing and
transcription skills. She had a great deal of difficulty doing this, as her
neck and back complaints restricted the time she could sit at a desk. She also
continued to have persistent pain in her left wrist. She was seen by an
orthopaedic surgeon in this regard and eventually underwent arthroscopic surgery
to repair the tear in the fibrocartilage forming part of the wrist joint. This
procedure, however, did not result in marked improvement.

[13]       
In the fall of 2007, Ms. Felix was again asked by her sister to work at
an Energy Board hearing in Alberta. She said she knew she could not take the
job as a lead reporter, as they had planned in the past, but hoped that she
would be able to work as an editor, helping to produce transcripts. She
prepared for this by buying a laptop and the associated software and travelled
with her sister to Pincher Creek for the hearings. Her ability to attend to the
work, however, was severely compromised and she was only able to complete two
full days’ work. After four days, she had to return home.

[14]       
The tears to the ligaments in the shoulder and ankle have been
identified by Magnetic Resonance Imagery [MRI]. There has been no surgical
intervention in respect of these injuries.

[15]       
Ms. Felix became the subject of increased panic attacks after the collision.
For a number of months, she was not able to ride in a car. Gradually, she
overcame this and, in the spring of 2010, she forced herself to drive in order
to attend a 5-week pain clinic in Langley. Presently, she can drive herself around
town and to her medical appointments.

Medical Assessments

[16]       
The medical reports filed on Ms. Felix’s behalf make it clear that she
will not be able to return to her previous employment and that her future
employability is significantly compromised. In his June 2008 report at pages 12
and 13, Dr. van Rijn, a specialist in physical medicine and rehabilitation,
assessed Ms. Felix’s disability as follows:

…It has taken a while for Ms. Felix to
reach a state where she is able to participate in more of her usual activities
of daily living but she is restricted in the amount and type of activity she
can do, given her persistent symptoms.

Ms. Felix still continues to suffer from
ongoing pain and limited function as a result of her musculoskeletal injuries.
She continues to suffer psychological effects related to the accident resulting
in ongoing anxiety and mood dysfunction. While her physical complaints affect
her comfort both at rest and with activity, she perseveres with her usual
housekeeping tasks and some recreational activities, ‘paying the price’ if she
over-exerts herself. To cope, she may break up her household chores into more
manageable portions She may have assistance from her daughters for more arduous
chores.

She has found that attending a gym on a
regular basis allows her to cope better with her symptoms.

She can have difficulty with simple things such
as dressing her lower extremities, with kneeling, squatting, Iifting and
carrying things, because of her musculoskeletal injuries. Sitting or standing
for periods of time increase her distress. These have all had some effect on her
ability to return to work (to be discussed).

She still receives counseling for her mood
dysfunction.

In general, the
longer one experiences complaints following a motor vehicle accident, the less
likely full recovery will occur. Thus, in Ms. Felix’s case, it seems more
likely than not that she will continue to experience activity limitations and
participation restrictions consistent with some ongoing permanent disability as
a result of injuries suffered in the accident of 2006.

[17]       
Ms. Felix’s emotional difficulties were assessed by Dr. Anderson, a
psychiatrist. His conclusions are found at page 11 of his June 26, 2008,
report:

12.       Long-term prognosis for Ms. Marnetta Felix, from a
psychiatric point of view, is poor. The fact that Ms. Felix continues to have
significant depressive symptoms and PTSD symptoms approximately two years
following her accident, despite appropriate treatment with psychotherapy and
pharmacotherapy, bodes poorly for her long-term prognosis. As long as Ms. Felix
has chronic pain she will likely continue to have depressive symptoms. Ms.
Felix will also likely continue to have residual PTSD symptoms and be at risk
of developing a worsening of her PTSD in future if she is exposed to further
trauma.

Despite further treatment and the
passage of time, Ms. Felix will likely remain emotionally vulnerable and at
risk of deteriorating emotionally when under psychosocial stress. Ms. Felix
will not likely return to her premorbid level of emotional functioning. She
will likely continue to be depressed, irritable and anxious on a long-term
basis.

[18]       
Dr. Robinson, a specialist in neurology and headache disorders, assessed
Ms. Felix’s history of headaches subsequent to the collision. At pages 8 and 9
of his May 2009 report, he said:

… Ever since the accident she has had constant discomfort
in her neck, shoulders and back. Headaches have been an accompaniment to the
symptoms with pain coming up from the back of her head and spreading into her
forehead and temples. Among the aggravators of her headaches the most prominent
is her level of physical activity. I believe that her history and examination
is consistent with a diagnosis of chronic headache relating to neck injury. …

The treatment of chronic headache relating to neck injury is
often difficult. Most patients do not experience substantial benefit from
medication or any of the available physical therapies. This has been the case
for her, and I do not have any suggestions other than her continuing with her
stretch/exercise routine. I do not believe that her headaches would respond to
migraine specific acute or preventative medications. …

It is nearly 3 years since the
motor vehicle accident. Headaches remain constant, as do many of her other physical
difficulties. I believe that her accident related symptoms of headache, neck, [and]
back will probably remain unchanged in the years to come. These will continue
to limit her activities and be challenging for any return to work.

[19]       
Associated with the concussion sustained in the collision, Ms. Felix has
complained of tinnitus and a feeling of unsteadiness. Dr. Longridge, an
otolaryngologist, found both related to the collision. At page 9 of his July 29,
2010 report, in respect of the tinnitus he said:

The tinnitus is continuous, but
fortunately, it is not specifically giving her difficulty with sleep … although
it is present all of the time, it is not intrusive disturbing her concentration
or function. For this reason, in my opinion, it should be regarded as mild.

[20]       
Commenting on her instability at page 10, he said:

This patient has a disturbance of
her balance system. As she ages it is probable that she is more likely to run
into difficulties with balance and unsteadiness than someone who has not had
the insult to her balance system which she has incurred. Clearly this is
something which is only going to occur in significant old age, but should be
kept in mind. Potentially there is an increased likelihood of falls and for
this reason osteoporosis management has to be optimized.

[21]       
 Mr. Emnacen, an occupational therapist, commented on her vocational restrictions
in his first report dated January 16, 2009, at page 32:

Ms. Felix presents with limited
tolerances for continuous sitting, sustained mild to moderate stooping,
sustained neck flexion and extension and for left hand handling/fingering work.
She is able to type at a competitive speed (more than 35 to 45 words per
minute); however, she demonstrates pain mannerisms that [limit] her tolerance
for continuous typing demands.

[22]       
In Mr. Emnacen’s second report, dated January 12, 2010, he found her
typing tolerance had diminished despite the left wrist surgery and that her
sitting tolerance related to her back pain had declined.

[23]       
Based upon the medical assessments and the occupational therapist’s
report, the vocational consultant’s report, prepared by Mr. Nordin on August 31,
2010 concluded at page 16:

… Ms. Felix would need to consider some low demand clerking
type work likely outside an office setting. For example, at a self-serve
storage facility rental outlet, a customer-service clerk, a front-counter clerk
at a service shop or perhaps even at a car rental agency. Effectively though it
would best be in a low-stress setting with provision for an ergonomic
workstation allowing for alternating postures and limiting keyboarding and/or
writing to short durations; and with very accommodating co-workers, supervisors
and employer.

Unfortunately, I am of the view that
her chances of finding such an employment setting are extremely limited.

Ms. Felix’s home and social life

[24]       
Ms. Felix has made significant attempts to return to her previous level
of functioning. She has attempted to return to her sports activities and
continues to play some soccer. She has moved from her previous position to a
role that she can better accommodate, however, her ability to participate has
markedly declined. She often will sit out entire games or have someone
substitute for her after a short period of time. She is restricted in her
housework and her girls have taken over much of the function of the home. She
expects to sell her house and move into a basement suite in a house her
daughter will be moving into on a local Reserve. She recently ended a
relationship with a boyfriend, which she attributed to her overall depression
and lack of activity. She has found herself drinking to excess and recently
stopped consuming alcohol because she feared that she was becoming alcoholic.
On the brighter side, she continues to attend at a local gym and keeps as physically
active as she can. Medical advice recommends that she continue to keep as
active as possible.

Past Wage Loss

[25]       
Ms. Felix’s 2005 tax return showed income of $41,825.00. Through the
first half of 2006, she earned income consistent with annual earnings of
$40,000.00. Subsequent to the collision, her earnings were restricted to sales
of transcripts of prior proceedings. Because of her native status and the fact
that she performed much of her work from an office on Reserve, she was not
required to pay income tax on these earnings. Perhaps more significant to
assessment of past wage loss, however, are the lost earnings from her potential
participation in reporting the Alberta Energy Board hearings. To the end of
November 2009, the amount paid to other reporters who were hired to take her
place in covering these hearings amounted to $302,000.00. The evidence of Ms.
Bangs, her sister, was that the Energy Board hearings tapered off after this
point in time, but that increased work can be expected should oil exploration
again become a feature of the Alberta economy. It is also significant to note
that the $302,000.00 would be taxable income, whereas the work Ms. Felix did
prior to the collision was not subject to income tax.

[26]       
I think it reasonable to assess past wage loss at the $300,000.00 paid
to the replacement reporters, less a 30% contingency for income tax and an
additional $40,000.00 to represent work Ms. Felix would likely have been able
to take to supplement declining employment with the Energy Board. This indicates
a total past wage loss of $250,000.00.

Future Wage Loss

[27]       
Ms. Felix is 46 years of age and, as the medical reports indicate, has a
considerably diminished earning ability. Although her counsel have suggested
she would have been fully employed to age 65 and thereafter employed half-time
to age 70, I think it more likely that her working lifespan would have only
extend to age 65. Her employment as a reporter was demanding and I think it
would be unrealistic to expect a longer working lifespan than the 16 years
until age 65. Her present prospects of finding further employment are limited
and there is very considerable reason to exercise caution in forecasting a
realistic prospect of future employment, but I think there is a likelihood she
can sustain employment which pays approximately the same as a full-time minimum
wage position. This more likely would be in the form of employment at better
than minimum wage, but on a part-time basis, with earnings approximating those
of a full-time minimum wage job over a year’s time. This would return about $16,000.00
per year. She has, therefore, lost more than one-half of her income earning
ability which I would assess on the basis of her previous year’s income at
$42,000 per year. The economic consultant’s report filed in evidence indicates
a multiplier of $12,719.00 for each $1,000.00 of lost income. Projecting a loss
of $26,000 through to age 65 calculates to $331,000. There are contingencies to
be considered in respect of voluntary reduction in hours of work and unemployment,
but also positive contingencies in the possibly enhanced earnings from future
Energy Board hearings. I think it reasonable in all the circumstances to accept
the calculated loss on the reduction from pre-collision earnings as a proper
assessment of the loss of earning capacity.

Non-Pecuniary Damages

[28]       
Commonly recognized factors considered in assessing non-pecuniary
damages include the plaintiff’s age; the nature of the injury and associated
pain; disability; emotional suffering; and loss or impairment of life.

[29]       
In Stapley v. Hejslet, 2006 BCCA 34, additional factors to
be added to this list included impairment of family, marital and social
relationships; impairment of physical and mental abilities; and loss of
lifestyle.

[30]       
In this case, the physical injuries continuing to affect the plaintiff
include: the injury to her left shoulder, left wrist and left ankle; as well as
persistent pain in her neck and back. The pain in her neck and back limits her
ability to sit for any extended period of time and is associated with the onset
of headaches.

[31]       
The residual effect of the collision, however, is markedly more
significant because of the PTSD and depression that she suffers. Combined,
there is significant loss in respect of her vocation, family life and social
activities.

[32]       
The evidence of Ms. Felix’s daughter, Brandy, was that her mother was
the strongest unit in the family. She provided the bulk of her daughters’
monetary and emotional support. The plaintiff related that from an early age,
her father emphasized that his daughters needed their own means of support
because romantic relationships couldn’t always be counted on. This and her
older sister’s success motivated Ms. Felix to take the training needed to
qualify for her employment, work she was skilled at and which provided
self-reliance and flexibility. She took particular pride in owning her home in
Chilliwack and paying down the mortgage to $40,000.00, prior to the collision.

[33]       
Ms. Felix’s life has markedly changed following the collision. She is
now reliant on her daughters to assist in keeping her home. She receives
psychological therapy, is treated with anti-depressant medication and has been prescribed
Ativan and Valium to allow her to sleep. She has not been able to work and has
been forced to live off of disability benefits and funds realized by
re-mortgaging her home. The evidence from her daughter and her two long-time
friends who gave evidence on her behalf was that her level of activity and
previously bright outlook on life had markedly changed. Her daughter was
concerned that, at times, she seemed suicidal. She said that she noted some
improvement after she attended the pain clinic in the spring of 2010 and that
she seemed a little happier and better able to manage her pain, but that she had
regressed since and lacked focus and initiative. She said she often appeared to
be in pain, had become short tempered and withdrew from contact with family and
friends.

[34]       
Many of the same comments were made by her friends who commented on the
difficulty in getting her to attend social functions, her lack of participation
and stamina, and her fragile emotional state.

[35]       
For a time, she formed a relationship with an individual she met through
a common friend, but they have since separated which she attributed to her depression
and inability to join in social activities he wanted to participate in. She
relates that she began to abuse alcohol to the point she feared she was
alcoholic.

[36]       
One aspect of her former life that she’s attempted to maintain is her
participation in soccer. This too, however, has markedly changed. She no longer
can play at her former position and now relies on substitutions taking over for
her on a regular basis. At times, she tries to avoid having to play at all. She
has discontinued her role in organizing fundraising and other activities for
the team and her daughters have taken this over for her.

[37]       
Her other sporting activities have fallen away, although she still tries
to jog or walk, and to attend the local community gym on a regular basis. Her
doctor recommends that she continue with this as a needed form of therapy.

[38]       
It is now six years subsequent to the collision and, although there have
been some areas of recovery, there would appear to be, at best, only a modest
hope for further improvement.

[39]       
Counsel cite Chowdhry v. Burnaby, 2008 BCSC 1337 [Chowdhry];
Sirna v. Smolinski, 2007 BCSC 967 [Sirna]; Young v. Anderson,
2008 BCSC 1306 [Young]; and Zawadski v. Calimoso, 2011 BCSC 45 [Zawadski],
as establishing the level of non-pecuniary loss in comparable circumstances to
those of Ms. Felix. In each of the first three cases, non-pecuniary damages
were assessed at $200,000.00. In Zawadski, the assessment was
$180,000.00. Each of these cases considered not only physical injuries, but the
effects of major psychiatric or emotional problems resulting from the trauma.

[40]       
In Chowdhry, the plaintiff was 64 years of age, he was very
active and outgoing, both in his vocational and family life. He suffered
PTSD and a major depression as a result of his other injuries which were, in
most part, soft tissue injuries of his neck and back.

[41]       
In Sirna, the plaintiff was a younger individual, 25 years of age,
who suffered soft tissue injuries which continued without significant
resolution, along with a mild traumatic brain injury and major depressive
effect.

[42]       
In Young, the plaintiff was 51 years of age at the date of the
collision. He was found to have a mild traumatic brain injury, along with
associated tinnitus, dizziness and loss of balance. The effects included
depression, with symptoms of confusion and inability to organize his work and
social activities.

[43]       
In Zawadski, the plaintiff was 44 years of age at the time of the
collision. He suffered various soft tissue injuries and an injury to his left
elbow that disabled him from his employment as a mechanic. Mr. Zawadski
developed a considerable depression, suffered from cognitive difficulties and
lapsed into alcohol abuse. While there was a question of mitigation in the Zawadski
case, non-pecuniary damages were assessed independent of the question of
mitigation in the sum of $180,000.00.

[44]       
I found each of these cases to be a useful although not a completely
determinative point of reference. The effect of emotional upset in Chowdhry
was similar to Ms. Felix’s case, Mr. Chowdhry, however, was markedly older and
Ms. Felix’s circumstances might indicate a greater award.

[45]       
In Sirna, the plaintiff was also very seriously involved in
sporting activity. She had maintained her employment, but was not expected to
be able to continue to do so. She was a significantly younger woman than Ms.
Felix.

[46]       
In the case of Young, the plaintiff was older than Ms. Felix at
the time of the collision. The collision that gave rise to his injuries appears
to have been a much less traumatic event than in this case. His vocational
performance was found to have been significantly affected by his emotional
state following the collision; however, he had continued to work during much of
the time until trial.

[47]       
On balance, I think an appropriate assessment in light of this authority
in this case to be $200,000.00 in non-pecuniary damages. The combined effects
of residual physical injuries, specifically the neck and back pain and
associated headaches, loss of function in her left wrist, and injury to her
left shoulder and ankle, along with the pervasive emotional disorder resulting
from the effects of her injuries and the trauma of the collision, have been
devastating to Ms. Felix’s personal and vocational life. She has lost much of her
ability to be self-reliant and to participate in many of the activities that
have been the foundation of her social life. The injuries are now assessed as
chronic and I think she will continue to struggle with the depression and
emotional upset that has marked the six years subsequent to her injuries.

Special Damages and Future Care Expenses

[48]       
Special damages presented in this case are restricted to the cost at
medical appointments and physiotherapy. They are presented at a modest per
kilometre charge and totalled $2,935.00.

[49]       
The cost of future care claim is restricted to the cost of continuing
gym passes at the local community facility. This is projected at $8,015.00,
which I judge to be a reasonable sum.

Summary

[50]       
The damages awarded are the following:

“W.G.
Grist”