IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110719

Docket: M128954

Registry:
New Westminster

Between:

Dyana Lorenz

Plaintiff

And

Terry Gosling, ARI
Financial Services Inc., and
ADT Security Services Canada Inc.

Defendants

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

(Delivered
Orally)

Introduction

[1]          
THE COURT: The plaintiff, Mrs. Dyana Lorenz, was injured in a
motor vehicle accident that took place July 7, 2008.  Liability for the
accident is admitted on the part of the defendants.  The trial proceeded as an
assessment of damages.  The only witnesses at trial were Mrs. Lorenz and Drs. Alan
Berkman and Stanley Leete.

Background

[2]          
Mrs. Lorenz is a resident of Port McNeill, British Columbia.  On the
date of the accident she was 52 years of age.  At the date of trial she was
just short of her 56^th birthday.  She is married, and has one adult
son who is independent.

[3]          
On the date of the accident she was driving a 2002 Toyota Camry
northbound on Broughton Boulevard in Port McNeill, when an eastbound vehicle
went through a stop sign in front of her, resulting in a collision.  The
photographs introduced as exhibits at the trial show substantial front end
damage to her Camry.  She did not recall the speed at which her car was
travelling at the time of the collision, but testified that she tried to stay
within the 50 kilometre speed limit.  Emergency personnel attended.  She was
taken to Port McNeill Hospital for treatment and released after several hours. 
X-rays taken at the hospital on the date of the accident showed a normal
cervical spine and left forearm.  When she saw her family doctor a few days after
the accident she complained of headaches, bilateral shoulder pain, and pain
radiating down both arms.

[4]          
She continued to be treated by family physicians.  She undertook
physiotherapy treatment from September 2008 to March 2009, a total of 20
visits, without any significant relief.  In early November 2010 she was
referred to Dr. Alan Berkman, an anaesthesiologist, for treatment of her
ongoing pain problems.

[5]          
Mrs. Lorenz’ major complaints at the time of trial are of daily
headaches, constant neck pain, and constant arm pain, in both arms, including
both elbows.  She feels depressed, and suffers emotionally from the ongoing
pain and limitation of function that she endures.

Positions of the Parties

Position of the Plaintiff

[6]          
The plaintiff argues that in all probability her condition is now one of
permanent chronic pain.  Her condition results in a degree of permanent
disability in relation to her work and work capacity.  She suffers from
impairment of physical and mental abilities, and impairment of her family, marital
and social relationships.  She has suffered a significant loss of lifestyle.

[7]          
The plaintiff has incurred expense for medication and for travel costs
for obtaining medical treatment.  She seeks special damages for those expenses
as well as costs for future care.  She claims for loss of opportunity and loss
of capacity to earn income.

[8]          
The plaintiff’s claims are as follows:

Position of the Defendants

[9]          
The defence argues that the plaintiff’s claim should be for
non-pecuniary damages and nothing else, aside from some minor special damages. 
The defence contends that the court award should be for non-pecuniary damages
in the range of $35,000-$45,000.  There should be no award for lost income
earning capacity.  Special damages of $427 should be awarded.

[10]       
The defence contends that there is a degree of exaggeration in the
plaintiff’s complaints of injury and in her evidence as to the consequences of
her injuries.  The defence notes that no corroborative evidence was adduced by
the plaintiff concerning the effects of her injuries.

Review of Medical Evidence

[11]       
The plaintiff relied upon the opinions of two doctors.  Their reports
were filed and both testified at the trial.

Dr. Stanley F. Leete, Orthopaedic Surgeon

[12]       
At the request of plaintiff’s counsel, Mrs. Lorenz saw an orthopaedic
surgeon, Dr. Stanley F. Leete.  Dr. Leete examined Mrs. Lorenz on one occasion,
June 2, 2010, and provided a report of the same date.

[13]       
At the time Mrs. Lorenz saw Dr. Leete, approximately 2 years
post-accident, she complained of panic attacks, insomnia, constant occipital
headache, bilateral trapezial pain, with the trapezial pain radiating up the
line of the paravertebral muscles into the base of the scull.  She also had
bilateral arm discomfort, more on the left than the right, and some
interscapular discomfort.

[14]       
“Occipital headache” is a headache at the base of the scull.  The
trapezial muscles are large triangular upper back muscles extending from the
base of the scull to the shoulder and mid back on each side of the body.

[15]       
On examination by Doctor Leete, she was noted to have tender
paravertebral muscles of her neck, tenderness of both trapezius muscles,
bilateral epicondylitis, worse on the left than the right, and a reduced grip
strength, especially on the left.

[16]       
A CT scan of November 2009 showed some degenerative change at the C3-4
level of her neck.  Dr. Leete’s report described it in this way, “… which is
reported on as being different to the initial [post-accident] X-rays”, and
degenerative changes at the C5-6 and C6-7 levels.

[17]       
Dr. Leete opined that at the time of the motor vehicle accident she sustained
a deceleration and lateral flexion injury to her cervical spine.  She injured
both elbows when grasping the steering wheel in anticipation of the impending
impact.

[18]       
At the time she was seen June 2, 2010, she continued to have bilateral
lateral epicondylitis (inflammation, pain and tenderness of the elbows).

[19]       
It was the opinion of Dr. Leete that Mrs. Lorenz was still significantly
compromised by the discomfort in her cervical spine.  As it was nearly two
years since the date of the accident when he examined her, he said:

“I think the prognosis for her
having a complete resolution of her discomfort must be guarded”.

[20]       
His report further states:

“She states that the discomfort
she experiences is little changed over the last 18 months or so…she may have
ongoing pain on a long term basis”.

[21]       
Dr. Leete suggested injection of steroid into the left elbow for the
epicondylitis, but suggested no other form of treatment.

[22]       
As to her capacities, Dr. Leete said, at p. 6 of his report:

From an employment standpoint, I think she can continue to
work in her job as a deli manager, providing that she still has the assistance
of the junior staff in helping her with the heavy lifting, etc, whilst at work.

In her household day to day
activities, she will require assistance with the heavy work throughout the
house, especially vacuuming and lifting and maintaining her garden.

[23]       
Dr. Leete’s testimony at trial did not differ in any material respect
from the opinions set out in his report.

Dr. Alan Berkman – report of June 5, 2011

[24]       
Dr. Berkman is a staff anaesthesiologist at Nanaimo Regional General
Hospital.  He first saw Mrs. Lorenz November 4, 2010, at the request of her family
doctor.  He has continued to be involved in her treatment to the time of
trial.  He provided a report to plaintiff’s counsel dated June 5, 2011.

[25]       
On his initial examination he found a “severe limitation of movement of
her neck with evidence of weakness in her upper limbs”.

[26]       
He concluded that she had a “significant injury to her spinal cord with
severe narrowing of the cord due to degeneration of the disc and facet joints”
at the C3-4 level of her cervical spine (i.e. mid neck).  He noted that she
also injured both elbows in the accident.  After first seeing her November 4,
2010, Dr. Berkman suggested a number of medications.

[27]       
An MRI report of December 8, 2010, prepared by Dr. Trepanier, relied
upon by Dr. Berkman, showed a disc bulge and osteophyte complex associated with
mild narrowing of the disc space at C3-4.  The spinal canal narrowing was
noted.  The MRI impression was “severe cervical spinal canal stenosis
(narrowing) at C3-4 secondary to diffuse disc bulge/osteophyte complex.”

[28]       
At trial Dr. Berkman opined that the spinal canal narrowing was to about
½ of normal.

[29]       
Dr. Berkman carried out cervical epidural steroid injections on December
15, 2010, and injections of local anaesthetic and steroid at the base of the
scull on April 6, 2011.  The latter were described in his operative report as
“medial branch blocks”.

[30]       
Dr. Berkman’s opinion was that Mrs. Lorenz was suffering from persistent
pain and weakness in her arms, and neck pain, resulting from the accident.  He
says that she suffered a “significant injury to her spinal cord at the C3-4
level, with consequential development of neuropathic pain in her neck and upper
limbs.”

[31]       
Dr. Berkman defined “neuropathic” as meaning a change in the perception
of pain, and change in the processing of pain by the patient. In his opinion
the pain had become “ingrained in her nervous system”.

[32]       
He suggested pain education, psychological support and occupational
therapy.

[33]       
Dr. Berkman also suggested a consultation with a neurosurgeon in order
to consider the advisability of surgery.  In the absence of neurosurgery, he
suggested treatment such as Botox or subcutaneous Lidocaine, or a spinal cord
stimulator.

[34]       
He was unable to determine a longer term prognosis without the
neurosurgeon’s opinion.

[35]       
On June 2, 2011, Mrs. Lorenz saw a neurosurgeon in Victoria, Dr. Stephen
Hentschel.  The opinion of the neurosurgeon, relied upon by Dr. Berkman, was
that in relation to Mrs. Lorenz’ major complaint of neck pain, there was no
strong indication for surgery.  Thus his opinion was against surgical
intervention.  Dr. Hentschel suggested follow-up MRI examination.

[36]       
Mrs. Lorenz remains under treatment by Dr. Berkman.  Dr. Berkman states
“If she does respond to the above-mentioned treatments she may be able to get
back to social, recreational, work and educational pursuits.  I will only know
what her long term prognosis is once the treatments mentioned above have been
tried.”

[37]       
I pause to note that the reference to “educational pursuits” appears to
have been an error, as there is no evidence of any relevant educational
pursuits for Mrs. Lorenz.

[38]       
Dr. Berkman said that Mrs. Lorenz’ prognosis is “guarded for any
recovery unless some of the identified problems above are treated”.

Summary of Medical Opinions

[39]       
Both doctors have indicated that the prognosis for improvement is
“guarded”.

[40]       
As noted, Dr. Leete states, “The prognosis for her having a complete
resolution of her discomfort must be guarded”.  He further states, “She may
have ongoing pain on a long term basis”.   Thus she has a risk of suffering
permanent pain and discomfort with associated limitation of function.  The
degree of risk is unstated.  However Dr. Leete says that she can continue to do
her work as a deli manager and can continue to do her household day to day
activities, albeit with assistance for heavier tasks. There is no indication in
his opinion that her accident injuries would worsen or cause additional
interference with her activities or lifestyle.

[41]       
Dr. Berkman’s opinion is also guarded, and generally negative, but
unclear as to any longer term prognosis.  He continues to treat Mrs. Lorenz,
thus he continues to hope for improvement, or at least some improvement, in her
condition.  Further treatment options remain.  For example, Mrs Lorenz has not
yet undertaken to any significant degree the pain education, psychological
support or occupational therapy that Dr. Berkman has recommended.

[42]       
On the medical evidence, therefore, I am left with a substantial lack of
clarity as to whether the complaints of Mrs. Lorenz are essentially permanent. 
Nonetheless, I am obliged to make findings on the evidence as it is.  I
conclude that there is a substantial risk that she will not experience a
significant improvement in her present symptoms and complaints.  I am unable to
find that this is a probable outcome.

[43]       
There is no question in this case that her complaints arise from the
motor vehicle accident.

Assessment

Non-Pecuniary Damages

Legal Principles:  Non-Pecuniary Damages

[44]       
The general principles relating to assessment of non-pecuniary loss are
set out in the decision of the B.C. Court of Appeal in Stapley v. Hejslet,
2006 BCCA 34, at paras. 45 and 46:

45 Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent inclination
by lawyers and judges to compare only injuries, the following passage from
Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders,
Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).

[emphasis
added.]

46 The inexhaustive list of common factors cited in
Boyd that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No.
163, 2005 BCCA 54).

[45]       
The non-exhaustive list of common factors set out in Stapley is undoubtedly
useful in assessing the loss.  However the overriding consideration is “an
appreciation of the individual’s loss”.  The amount of the award should depend
not only upon the seriousness of the injury, but also its “ability to
ameliorate the condition of the victim considering his or her particular
situation”.  The award will vary in each case to “meet the specific
circumstances of the individual case”.

Assessment of Non Pecuniary Loss

[46]       
 Mrs. Lorenz was 52 years of age at the time of the injury.

[47]       
I accept that Mrs. Lorenz suffers from daily and practically constant
head and neck pain, as well as frequent pain in her arms.  She also has elbow
pain in both elbows, and weakness of grip, particularly in the left hand.  Her
injuries have resulted in significant ongoing limitations of function.

[48]       
Both Drs. Berkman and Leete refer to evidence of some physical injury to
the C3-4 level of her spine.

[49]       
Mrs. Lorenz testified that prior to the accident she was a very active
person.  In addition to her full-time work as the manager of the SuperValu delicatessen,
she enjoyed activities such as camping, fishing, walking, riding a motorcycle,
gardening, and housework.  She enjoyed her housework.  She was particularly
fond of gardening.

[50]       
She and her husband have two boats, a 12 foot open boat and a 21 foot
boat with a cabin.  Prior to the accident they used both boats for fishing
during the April through October season.  At trial, Mrs. Lorenz testified that
she no longer fishes.  She has done no boating since the accident.  She says
the wave action and rough water will cause pain to her neck, back, and arms. 
She used to can her own fish at home, but has discontinued canning.  Prior to
the accident she would regularly participate in camping on weekends.  She still
goes camping, but can no longer be as active as she was previously.  She is no
longer able to participate in gathering firewood, hiking around campsites, or
motorcycle rides.  She testified that she no longer exercises on her stationary
bike or treadmill.

[51]       
Her garden, formerly “my baby”, as she put it, now gets very little
attention from her.

[52]       
Her relationship with her husband remains strong, despite difficulties
and interference with physical intimacy.

[53]       
She still does housework, but not to the degree that she did before. 
She continues to do laundry, with some difficulties.  She does vacuuming,
sweeping and mopping of floors, with some difficulties.  Previously she did all
the dishes and now only does some of them.

[54]       
Dr. Leete’s opinion notes the complaint of “panic attacks” by Mrs.
Lorenz.  She did not testify about panic attacks as such.  She testified about
nervousness while driving and ongoing emotional consequences of the accident
and her injuries.  I conclude that she suffers from anxiety while driving, or
being driven. Nonetheless there has been no substantial interference with driving
or being driven.

[55]       
She has trouble sleeping, for which she sometimes must resort to
sleeping medications. She does not feel well rested when she arises in the
morning.  She feels irritable.  She has less energy than she did before. She
takes pain medication daily.  Her ongoing pain and limitations continues to cause
emotional effects. She often feels depressed.

[56]       
 She testified that she has a sense the pain medication has made her
somewhat forgetful and sometimes confused.

[57]       
The pain has persisted for approximately three years since the accident.

[58]       
The tenor of her evidence at trial was that the pain is getting worse
over time.

[59]       
The defence argues that her testimony in this respect is inconsistent
with her examination for discovery evidence given relatively recently on
February 25, 2011, where she testified as follows:

167      Q         Now,
has there been any improvement in your neck symptoms over the last two and a
half years?

 A          No.

168      Q         It’s been the same throughout?

 A          Yes.

[60]       
At trial she testified that the answers she gave in these two questions
were true.  As I read these answers, she testified that there had been no
improvement in her neck symptoms.  The answers are not inconsistent with a
worsening of her neck symptoms over the course of time, including up to the
date of trial.

[61]       
While I found the plaintiff to be generally credible, and certainly not
a malingerer, I also find that she has somewhat of a tendency, probably subconscious,
to exaggerate her difficulties.

[62]       
In relation to her treatment begun by Dr. Berkman in November of 2010,
she was asked to fill out a questionnaire.  Part of the form asked her to fill
in questions relating to the extent to which, during the previous 24 hours, her
pain had interfered with matters such as work, relations with other people,
sleep, and enjoyment of life, among other matters.  She was asked to provide a
number on a scale between 0 and 10 for these items.  In each case, as I
interpret her responses, she indicated the appropriate response was “10” in a
sense that her pain “completely interferes” with these aspects of her life.  On
that interpretation, her answers are exaggerated.

[63]       
At examination for discovery she testified that she still goes “fishing”
although not as frequently as she did previously.  At trial she said that she does
not go fishing, and the reference to fishing was an error.  She testified that
she still uses the treadmill and stationary bike, but not for long, and that
these exercises very much aggravate her condition.  At trial she said that she
does not engage in these activities.

[64]       
Although she testified about hunting prior to the accident, she had not
in fact gone hunting for quite a few years prior to the accident.

[65]       
As noted, no corroborative evidence was called.  Based on her testimony
most of her recreational pursuits are enjoyed in the company of her husband,
who did not testify.  The defence did not contend that I should draw an adverse
inference, and I do not.  However of necessity the persuasive force of the
evidence for the plaintiff is limited where the only evidence is that of the plaintiff
herself.

[66]       
However on the basis of all of the evidence, I accept that the
plaintiff’s pre-accident leisure and recreational activities have been
substantially detrimentally affected.   I conclude that in the main she can still
engage in many of her pre-accident activities, but with limitations, and pain.

[67]       
Stoicism is a neutral factor in this case. Commendably, she has
continued to work, notwithstanding pain and limitation of function.  I will
elaborate on this when I come to discuss her loss of future earnings and
earnings capacity claims.  The suffering she endures while working and its
effects is a factor to be considered in the assessment of her non-pecuniary
loss.

[68]       
Counsel for the plaintiff urges me to find that it is probable her pain
will continue permanently.  However, the evidence does not go so far as to
enable me to find that her condition is permanent on a balance of
probabilities.  It is clear that the plaintiff’s condition has so far been
resistant to treatment. On the evidence, the plaintiff has established that there
is a substantial possibility of a significant degree of permanence to her
condition.

Authorities of the Plaintiff

[69]       
The plaintiff relied upon the following authorities: Boyd v. Harris,
2004 BCCA 146; Prince-Wright v. Copeman, 2005 BCSC 1306; Stapley v.
Hejslet, 2006 BCCA 34; Djukic v. Hahn, 2006 BCSC 154; Ashcroft v.
Dhaliwal, 2007 BCSC 533; Marois v. Pelech, 2007 BCSC 1969; and Ayoubee
v. Campbell, 2009 BCSC 317.

[70]       
I have considered all of the authorities relied upon by the plaintiff I
will comment on them, as follows.

[71]       
In Boyd v. Harris the Court of Appeal reviewed a jury award of
damages.  The defendant appealed the jury’s award for non-pecuniary loss of
$225,000, and its award of $340,000 for loss of earning capacity, arguing that
these awards were excessive.  The defendant did not appeal awards of $85,000
for past loss of earnings, and $33,500 for the cost of future care.

[72]       
The plaintiff was 36 years of age at the time of the accident in 1996. 
He left school before completing Grade 11 and had worked all his life as a
labourer, or in other unskilled work.  He sustained a fractured neck and a
permanent spinal cord injury.  At the trial in 2002, some six years post
accident, he had not returned to work.  His spinal cord injury would probably
preclude him from returning to work in any occupation for which he was
qualified.   His prospects for a career change were unpromising.   The spinal
cord injury led to muscle dysfunction.

[73]       
K. Smith J.A., for the Court, stated:

[17] There was medical opinion evidence before the jury that
the respondent’s spinal cord injury gives rise to localized areas of muscle
dysfunction and that it interferes with the transmission of signals from the
lower extremities to the brain. As well, there was evidence that he has a
softening of the spinal cord in his neck and a worrisome fluid collection in
the central part of his spinal cord that could lead to deterioration of spinal
cord function and might require extensive surgery. Further, there was evidence
that he is at increased risk of developing cysts in the spinal cord, which will
be painful and could lead to neurological compromise and surgical intervention.
His spinal cord condition will require close monitoring in years to come. In addition,
there was evidence that his condition has worsened since the initial injury and
that his spinal cord is atrophying and shrinking at the C5/C6 level.

[18] The respondent gave
evidence from which the jury could reasonably have concluded that he has
difficulty with proprioception or the ability to move appropriately in response
to stimuli. As well, there was evidence that he has unusual reactive reflexes
in both legs, increased sensitivity in his arms and legs, constant neck and
shoulder pain, intermittent shooting pain in his left arm, loss of dexterity in
both hands, loss of strength in his left hand, lack of balance, altered gait,
lack of co-ordination, asymmetrical muscle tone in his legs, and intermittent
tremors in both arms.

[74]       
There was evidence that the plaintiff could require surgery for
discectomy and fusion of the spine.

[75]       
The plaintiff was unable to participate in the physical activities he
had previously enjoyed.

[76]       
After reviewing the non pecuniary awards in the six cases cited by the
appellant, and several others, K. Smith J.A. stated that the upper end of the
conventional range of non-pecuniary damages awarded by trial judges in
comparative cases was approximately $150,000 to $160,000.

[77]       
Counsel for Mrs. Lorenz contends that the mid-point of this upper limit,
$155,000, would be approximately $187,500 in current dollar terms.

[78]       
It is clear, however, that Mrs. Lorenz’s injuries and their consequences
are not reasonably comparable to that suffered by the plaintiff in Boyd v.
Harris. There, the plaintiff was much younger and would never work again in
any occupation for which he was suited by skills or training. He had a severe
and permanent spinal cord injury, with clear potential for future deterioration
of his condition and the possible need for future spinal surgery.

[79]       
The evidence relating to Mrs. Lorenz spinal cord is less than clear. 
Dr. Leete, an orthopaedic surgeon, says only that some degenerative change at
the C3-4 level appears “different” than the initial post-accident X-rays.  Dr.
Berkman, the anaesthesiologist, states in his report pre-dating her
neurosurgical consultation with Dr. Hentschel that the spinal degeneration in
her neck is relatively normal except in relation to C3-4, which he describes as
showing “severe changes” and as being a “significant injury to her spinal
cord”.  However he then received Dr. Hentschel’s report indicating that that there
was no strong indication for surgery, such as a C3-4 discectomy and fusion,
based upon her minimal clinical findings to date and “no evidence of spinal
cord compression clinically”.  Surgery if undertaken would be difficult.  On
this basis Dr. Berkman concluded that Mrs. Lorenz was not a candidate for
surgery.

[80]       
On the evidence available, I conclude that the spinal cord injury
suffered by Mrs. Lorenz is not comparable in severity to that suffered by the
plaintiff in Boyd.

[81]       
I further conclude that the Boyd decision does not provide useful
guidance for me in this case.

[82]       
In Prince-Wright v Copeman, the plaintiff was 39 years of age at
the time of the accident in 2001. She suffered from headaches, chronic back
pain, insomnia, depression, post-traumatic stress disorder, headaches, and
right-sided C8 nerve irritation. Her prognosis for full recovery was poor.
Madam Justice Gray concluded at para. 98 that she, “…will likely be forced to
live with chronic pain, fatigue, and a compromised ability to work and play.” 
She assessed non-pecuniary damages at $100,000.

[83]       
Counsel for Mrs. Lorenz argues that $100,000 equates to $113,000 in
today’s dollars.

[84]       
Some indication of the severity of the injury effects in Prince-Wright
is shown by the other awards made in that case.  The plaintiff was awarded
$270,000 for past loss of earning capacity, and $550,000 for future loss of
capacity.

[85]       
I commented upon Stapley in my decision in Power v White 2010
BCSC 1084 at paragraphs 71 and 72, as follows:

[71] In Stapley, the plaintiff was injured in a motor
vehicle accident on May 20, 2000. On February 13, 2004 a jury awarded
non-pecuniary damages of $275,000. The Court of Appeal reduced the award to
$175,000. However, of this amount, $75,000 was on account of what was accepted
by the Court of Appeal as Mr. Stapley’s “unique loss”, in that the injury could
force the plaintiff to leave his work on a ranch to take employment somewhere
else. The Court of Appeal accepted that Mr. Stapley’s job on the ranch was of
tremendous importance to almost all aspects of his life. It provided Mr.
Stapley and his family with their home, community, and lifestyle. He was a long
term resident of the ranch, at nominal rent, and had freedom to use the ranch
and extensive facilities and thousands of acres of land. If he lost his job on
the ranch, his family would be forced to leave their home and lose their unique
ranch lifestyle, sense of community, the ranch’s wide open spaces and “8,000
acre back yard”.

[72] The motor vehicle accident
resulted in a thoracic outlet syndrome injury which required surgery which
afforded considerable improvement, but Mr. Stapley was left with permanent
partial disability. Nonetheless he was able to continue his work as a mechanic
on the ranch and continued to engage in numerous recreational pursuits such as
slow pitch softball, curling, ice hockey, bucking of firewood, fishing,
golfing, and hunting; however all of these activities were on a limited basis
and with pain.

[86]       
In Stapley, the Court stated that aside from the plaintiff’s
“unique loss” the plaintiff’s non pecuniary damages would not exceed $100,000. 
Counsel says that is now $115,000 in today’s dollars.

[87]       
In Power v. White I also commented upon Marois v. Pelech,
as follows:

[76] The plaintiff also relied upon Marois v. Pelech,
2007 BCSC 1969, a decision of Mr. Justice Smart. There the plaintiff was 49
years of age when the accident occurred in 2001. She was physically active
prior to the accident. The trial took place in 2007. The court accepted that
the plaintiff suffered from significant depression and chronic pain as a result
of the accident. Mr. Justice Smart summarized by saying:

[92] … she lived
a full and busy life. This has been lost over the last six years. It will
continue to be impacted in the future. It is difficult to determine the extent
of the impact given the nature of her health issues and given the concerns with
respect to her credibility that I have already discussed. She appears to be
improving… However, her prospects for further improvement are uncertain. I
find that non-pecuniary damages should be assessed at $130,000.

[77] $65,000 was awarded for past
loss of earnings and $120,000 was awarded for future loss of earnings, and
$130,000 for future care and future housekeeping.

[88]       
In Djukic, the plaintiff was 32 years of age when injured in a
motor vehicle accident in June 2000. She was injured in another accident in
2001, while she was far from fully recovered from the injuries sustained in the
first accident.

[89]       
Josephson J. stated:

[62] She suffered injuries to her neck, back, shoulders,
wrist and knee which continue in varying degrees. She has suffered severe pain,
some of which was alleviated with discectomy surgery in December of 2002. She
suffers severe and chronic anxiety and depression.

[63] The accidents have had a
dramatic impact on her quality of life. This robust, energetic, goal driven and
hard-working person has lost most of the quality of life she previously
enjoyed. The proposed aggressive treatment of her depression may bring some
relief. However, she will nevertheless be left with a permanent partial
disability, both physically and emotionally.

[90]       
$125,000 was awarded for non pecuniary loss. She was also awarded
substantial amounts for past and future income loss or earning capacity.  The
future loss was assessed at $500,000.

[91]       
In Ayoubee, Madam Justice Humphries awarded $100,000 for non
pecuniary loss, in the case of a 28 year old plaintiff who suffered a low back
disc herniation in the accident.  He had suffered from pain for the six years
leading to the trial. By the time of trial his condition was deteriorating and
the prognosis was not good. Surgery was a possibility, but even with surgery,
he would likely be left with residual numbness and discomfort, and back pain. 
Humphries J. stated, at para. 104:

As a result of the accident, he
has lost the quality of life of an active young man.

[92]       
Past wage loss was assessed at $8,000, and future loss at $80,000.

[93]       
In Ashcroft, the plaintiff was about 54 years of age at the time
of the first of two accidents. Mr. Justice Shaw awarded non pecuniary damages
of $120,000, after stating at para. 55:

[55]      As a result of the
accidents, Mrs. Ashcroft’s life has changed drastically for the worse. She is
in constant pain. She is depressed and suffers from PTSD. She was a woman of
enormous energy who thrived on her work outside and inside the home. Her
essential identity has been taken from her. Her life was full of interest and
joy; that has been taken from her. She is no longer that woman. Her prospects
of improvement are uncertain.

[94]       
In the authorities cited by Mrs. Lorenz, the plaintiffs were generally
younger or suffered more severe consequences from their injuries than has Mrs.
Lorenz.   In each case the plaintiffs also received awards, usually
substantial, for past and future losses of income or earning capacity.

Authorities of the Defendants

[95]       
In relation to non pecuniary loss, the defendants relied upon the following
authorities: Harris v. Zabaras, 2010 BCSC 97; Perren v. Lalari,
2008 BCSC 1117; Sylte v. Rodriguez, 2010 BCSC 207; Battrum v. British
Columbia, 2009 BCSC 716; MacLaren v. Kucharek, 2008 BCSC 673; Fata
v. Heinonen, 2010 BCSC 385.  In these decisions the non pecuniary awards
ranged from $35,000 to $50,000.  The defence argues that $45,000 represents the
upper limit of the award that should be made to Mrs. Lorenz.

[96]       
The cases cited by the defence generally involve less significant
consequences for the plaintiffs than in the case before me.

[97]       
After considering all of the authorities cited to me, and on the
findings that I have made, I consider that the sum of $80,000 represents a fit
and proper award for non pecuniary loss in this case.

Past Wage Loss

[98]       
Since May 2001, approximately 7 years prior to the accident, Mrs. Lorenz
has worked as the manager at the delicatessen at the SuperValu grocery store in
Port McNeill.  She continues in that occupation currently.  She has not lost significant
work as a result of the accident.  She has been able to schedule her medical
appointments around her work.

[99]       
The plaintiff claims for a loss of $626 due to loss of work to attend
the trial. This is not recoverable. Loss of income in order to pursue legal
claims is not recoverable as damages for personal injuries.

Loss of Opportunity and Loss of Capacity to Earn Income

[100]     Mrs.
Lorenz’ work involves activities such as pulling product out of the coolers and
placing it in display cases, removing product from the display cases, cooking
chicken on the rotisserie and packaging them, relief cashier work, ordering
product at a desk using a computer, and making sandwiches and pizzas.

[101]     She now
completes her work with much more difficulty than in the past. She relies on
her co-workers for some of the heavier tasks. She performs her work more slowly
than formerly. In order to cope she takes pain medication daily.  After working
a full day she has no energy and is unable to work out on the treadmill or
exercise bike as she formerly did.  She now leaves cooking of the evening meal
to her husband.

[102]     She
testified that she enjoys her work at the grocery store. At her examination for
discovery she said that she was planning to stay at SuperValu.  At trial she
testified that prior to the accident she would have planned to work at the
SuperValu until age 65 or later, but now she is not so sure.

[103]     She is
paid on a salary basis.  The salary works out to $12.52 per hour, based upon a
40 hour week.  On this basis her annual salary would be approximately $26,000.

[104]     Prior to
the accident she had given some thought to possibly applying for a job at the
Government liquor store in Port McNeill.  She had taken no concrete steps
towards pursuing that objective.  She thought the pay at the liquor store was
higher than what she earned but could not be sure.  In her view the work
involved would be too heavy for her, as it would require her to lift heavy
boxes. However there was no admissible evidence to support any opportunity or
lost opportunity for work at the liquor store.

[105]     She and
her husband reside in a house they own in Port McNeill.  Their house has a view
over Broughton Strait.  It has a basement suite which in the past Mr. and Mrs.
Lorenz operated as a bed and breakfast in the summer months.  Mr. and Mrs.
Lorenz purchased the house in May of 1999 and operated a bed and breakfast from
then until approximately 2003 or 2004.  Mrs. Lorenz found that operating the bed
and breakfast was too much work, in conjunction with her full-time job.

[106]     She
testified that she would now be unable to operate the B & B if she wanted
to do so.  She would not be able to climb the 14 stairs leading to the basement
and to do the other work associated with operating the B & B.

[107]     On her
examination for discovery Mrs. Lorenz agreed that she had not lost any
opportunities to earn money as a result of her injuries.  There is no claim for
past loss of opportunity to earn income.

[108]    
In relation to claims for future loss of earnings or earnings capacity,
in Perren v. Lalari, 2010 BCCA 140, the Court of Appeal reconciled
various prior authorities of the court in this fashion:

31 Furthermore, I conclude that there is no conflict
between Steward and the earlier judgment in Pallos. As mentioned
earlier, Pallos is not authority for the proposition that mere
speculation of future loss of earning capacity is sufficient to justify an
award for damages for loss of future earning capacity.

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.

33 On the facts of this
case, the trial judge found that there was no substantial possibility of a
future event leading to an income loss. That should have been the end of the
enquiry. That was a reasonable conclusion on the evidence because there was no
evidence that she was limited in performing any realistic alternative
occupation.

[109]     In this
case, it is possible to speculate that the plaintiff’s condition, if it continues
to be resistant to treatment, could potentially result in an income loss in
future.  Many scenarios can be imagined.  If her condition significantly worsens,
she may not be able to carry on in work as a deli manager.  She may be induced
to retire earlier, as plaintiff’s counsel suggests.  If she is not able to
carry on her work as a deli manager at the grocery store, the range of
employment opportunities open to her could be less than they would have been
but for the accident injuries.

[110]     As I
understood the argument for the plaintiff, the liquor store option and the lost
opportunity to resume the bed and breakfast business were suggested merely as
examples of earnings opportunities that the plaintiff could no longer pursue,
in support of a general claim for loss of work capacity.  As noted, the loss of
a liquor store job opportunity was not established in evidence.  Regarding the
B & B, Mrs. Lorenz had discontinued that several years before the accident,
due to the demands of her full time work at the grocery store.  On the evidence,
I do not accept that either of these have been proven as actual lost
opportunities to earn income due to the accident injuries.

[111]     In
accordance with Perren, the first question is whether the plaintiff has
established that there is a real and substantial possibility of a future event
leading to an income loss.  There is no medical evidence to support a conclusion
that she will not be able to continue in her present work. There is no
indication that her functional limitations have or could in future result in
loss of her job or inability to engage in her present occupation.  There was no
evidence that her job is insecure.  On the evidence, I am not able to conclude
that the possibility of income loss is more than speculative.  In all
likelihood, even if the plaintiff’s condition does not improve, she will
continue in her present employment without suffering a loss of income.  There
is also the possibility that treatment or natural healing will improve her
condition, with time.

[112]     Therefore
the plaintiff has not established a real and substantial possibility of a
future event leading to an income loss, and therefore no award of loss of
earnings or earnings capacity has been established on the evidence.

Special Damages

[113]     The
plaintiff claims for special damages in the following categories:

[114]     The
defence argues that the only portion of special damages proven is the past
medical expense of $427.00.  I accept the plaintiff’s claim for the cost of
medications at $628.73.  Most of the actual expense was covered by insurance.  The
plaintiff claims only for deductible portions of medications and for
non-insured medications.

[115]     The
defence does not deny that the plaintiff incurred expense in order to travel
for medical treatment, but says that the plaintiff has not proven the actual
expense.

[116]     The
plaintiff claims travel costs at the rate of $0.50 per kilometre and provides
estimates as to the distance involved for trips to Nanaimo hospital from Port
McNeill, to Victoria, and others.  Travel was by private passenger vehicle. 
There is no question that the treatment was reasonable and that travel and
accommodation expense was incurred.  The defence does not suggest that there
were other, cheaper alternatives.  The defence does not suggest that the rate
claimed by the plaintiff is unreasonable, only that it is unproven.

[117]     I accept
the plaintiff’s claim on the basis of it being a reasonable estimate of her
actual expense.  I therefore allow the special damages in the sum of $5,267.73.

Cost of Future Care

[118]     The
plaintiff argues that she will incur future costs of care, in relation to
medications and travel, at the sum of $1,500 per year, which on a present value
basis is $24,385 to age 80.  The plaintiff submits that a reasonable award for
future cost of care, after taking into account some contingencies, would be
$20,000.

[119]     The
plaintiff continues to undergo treatment currently.  The treatment will
hopefully have some degree of success.  The evidence does not support a need
for treatment permanently.  Whether the treatment is successful or
unsuccessful, at some point it will end.  It is reasonable to assume that the
plaintiff will continue to undergo treatment for a further three years at the
same rate as the amount has incurred over the past three years, which has been
roughly $1,750 per year.  On that basis, the plaintiff is entitled to an award
of future care costs in the amount of $5,250.

Conclusion

[120]     The
plaintiff is awarded the following amounts:

a)    Non-Pecuniary
Damages:  $80,000

b)    Special Damages:
$5,267.73

c)    Future Cost of
Care:  $5,250

d)    Past Wage Loss: 
$0

e)   
Loss of Capacity/Opportunity:  $0.

“Verhoeven J.”