IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120203

Docket: M103805

Registry:
Vancouver

Between:

Rachelle Fuchser

Plaintiff

And

Christopher
Wilson, Dennis Canta, Nicole Vanselow, Toyota Credit
Canada Inc. and Alexandre Rakhmetouline

Defendants

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
On December 7, 2008, the plaintiff was a passenger in a right-hand drive
Nissan Skyline driven by her then partner, Christopher Wilson. She was sitting
in the left-hand front seat.

[2]            
As Mr. Wilson drove out of New Westminster on Stewardson Way toward the
Queensborough Bridge, Dennis Canta, a driver who had chosen the wrong lane to
take the route to the Bridge, cut Mr. Wilson off when he made a sudden lane
change to get to the correct lane. The effect of Mr. Canta cutting in was to
force Mr. Wilson to take evasive action to avoid a collision. Mr. Wilson
slammed on his brakes and veered to the right.

[3]            
The driver behind Mr. Wilson was Nicole Vanselow. She stopped as quickly
as she could, but whether as a result of her being hit by the car behind her or
as a result of not having sufficient room to avoid hitting Mr. Wilson’s car,
she made impact with the rear of his Nissan Skyline.

[4]            
Liability is admitted.

[5]            
Ms. Fuchser claims for damages for injury to her neck, right shoulder,
chest,  upper and lower back, jaw and for continuing pain.

Issues

[6]            
Was Ms. Fuchser’s pre-existing condition:

(a)      exacerbated and rendered
symptomatic by the collision; or

(b)      the cause of the long-term
pain from which she suffers and would have developed in any event of the
collision?

[7]            
What is the quantum of non-pecuniary damages to which Ms. Fuchser is
entitled?

[8]            
Is Ms. Fuchser entitled to damages for future loss of capacity and, if
so, to what quantum?

[9]            
Did Ms. Fuchser suffer wage loss to the date of trial in excess of four
days, including loss incurred after her seven and a half month period of
severance ended?

[10]        
Was the termination of Ms. Fuchser’s employment related to the injuries
caused by the collision?

[11]        
Is Ms. Fuchser entitled to damages for loss of homemaking capacity and,
if so, to what quantum?

[12]        
Is Ms. Fuchser entitled to special damages and, if so, should there be
any deduction related to her pre-existing condition?

The Plaintiff

A.       Pre-accident

[13]        
The plaintiff was born in 1973 and grew up in Washington State. She
reports she was active in high school and enjoyed cycling.

[14]        
She did not undertake any formal education and did not finish high
school. She married a Canadian at 19 and moved to New Westminster with her
husband in 1994.

[15]        
The plaintiff describes herself as a happy, loving, upbeat person before
the accident. As one of 11 children, she was a nurturer and natural caretaker
of others.

[16]        
Going out dancing with friends at clubs, dinner parties, social tennis
and shooting hoops were all part of her leisure activities before the accident.
She described herself as “up for anything”.

[17]        
One of the defendants, Christopher Wilson, was her common law spouse at
the time of the accident. Their relationship ended in September 2010.

[18]        
The plaintiff was very interested in interior design and acquired skills
in painting, installing crown moldings and track lighting and refinishing
furniture.

[19]        
Gardening was another of her interests and before the accident she kept
the yard of her rental house immaculate, planting trees and adding flower beds.
Her landlord kept her rent low as a reflection of the way in which she
maintained and improved her accommodation.

[20]        
The plaintiff’s employment history involves mainly retail sales, first
with Eaton’s of Canada and then, starting in 2000, with Holt Renfrew. She was
with Holt Renfrew at the time of the accident and was a specialist in the sale
of fragrances.

[21]        
The plaintiff was paid $14 per hour and 4% of her sales as commission.
Holt Renfrew did not employ Ms. Fuchser full time, but she averaged 37.5 hours
per week. She did not have a regular schedule. She reported to Sarah Roth, who
gave evidence in this matter.

[22]        
In her job at the men’s fragrance counter, she was responsible for
sales, customer service, answering phones, receiving and ordering stock,
unpacking, loading and placing stock in the stock room, merchandising stock at
her counter, taking inventory and meeting with buyers.

[23]        
Her job required a good deal of standing while she waited for and served
customers.

[24]        
After the move to the new Holt Renfrew store, there was not as much
storage available at the counter where she worked so that the trips for stock
took longer and stocking thus required more time.

[25]        
It was the plaintiff’s intention to remain with Holt Renfrew and to work
her way up. However, she was terminated along with several other employees in
February 2009, some two months post-accident.

[26]        
The plaintiff stated that she had some back pain before the accident. In
particular, she had issues with her right sacroiliac joint. After a referral to
an osteopath, her symptoms subsided and she had no problems in the two years
before the accident. Nevertheless, she attended on her osteopath for a check-up
three days before the accident.

[27]        
The was diagnosed with scoliosis and a pelvic malalignment before the
accident and noticed she could not sit for long periods of time without
stiffness resulting.

B.       The Accident

[28]        
On the day of the accident, December 7, 2008, the plaintiff, Mr. Wilson
and the plaintiff’s niece, Nicole Vanselow, as well as Ms. Vanselow’s daughter,
Gracie, were all going to Richmond to buy a Christmas tree.

[29]        
Mr. Wilson was driving his Nissan Skyline in front of Ms. Vanselow. The
Skyline does not have airbags.

[30]        
As described, another driver cut Mr. Wilson off, forcing him to turn
sharply to the right to avoid a collision. He did avoid a collision with the
driver who cut him off, but his abrupt stop resulted in impact from cars behind
him, including that of Ms. Vanselow.

[31]        
Ms. Fuchser says she felt a hard jolt when Ms. Vanselow’s car hit the
car she was riding in. She was expecting to be hit and had braced herself. Her
seatbelt tightened and locked on impact. Her upper body pushed forward into the
locked seatbelt and then she was pushed back into the headrest. She does not
recall any side to side movement.

[32]        
When she braced herself, it was by placing her left hand on the left car
door and possibly by using the console on her right because she anticipated
some impact.

[33]        
She said the impact was a heavy, abrupt, quick hit which struck left of
centre on the rear bumper of the Skyline. It caused her body to jerk first
forward and then back into her seat.

[34]        
Mr. Wilson got out of the car quickly after impact. He had a heated
discussion with the driver who had cut him off and Ms. Fuchser joined in. After
they obtained the other drivers’ details, Mr. Wilson called the police. Because
there were no injuries, no emergency services attended the scene.

[35]        
Initially, the plaintiff felt nothing. She was nervous and upset, but
had no pain at the scene. She went home.

[36]        
At home she developed a headache.

C.       Post-Accident

[37]    The plaintiff saw her doctor, Dr. Klein, the
next day. She had developed tight muscles in her neck, upper shoulders and back
and her headaches had continued. As a result of her stiff neck, she had pain in
her upper shoulders and back bilaterally and this affected her ability to
sleep. Her headache became continuous.

[38]    The headaches moved into the right side of her
jaw and throbbed until numbness and tingling developed. Her neck and right ear
also throbbed.

[39]    Dr. Klein prescribed Naproxin and a muscle
relaxant. The plaintiff took them as prescribed.

[40]    The plaintiff testified that she has a dislike
for the use of prescription medicines and managed her symptoms with Robaxacil,
Advil, the occasional Tylenol 3, over the counter sleeping aids and
natural remedies for headaches such as Peppermint Halo.

[41]    She stayed home to rest as recommended by Dr.
Klein. However, her symptoms worsened. She felt pain in her right ear and jaw,
the right side of her neck, shoulders and upper back. She had lower back pain
which radiated to both sides and down into her right buttock. While her right
side was generally more painful, her headaches were in the front, centre and
the right side of her head.

[42]    She had advised Holt Renfrew, in the person of
her manager, Rob Carter, of the accident. She took four days off work and in
combination with regular days off was able to rest for about a week. However,
it was the beginning of the Christmas season and she felt pressed to return to
work. She avoided heavy work such as going for stock and merchandising stock
and she wore comfortable shoes.

[43]    She returned to work after the one week off and
continued to work full-time until February 9, 2009, when she was given a letter
of termination.

[44]    At home she continued to keep her house clean,
but relied on her partner to do some of the tasks she could no longer
comfortably manage.

[45]    During the first month post-accident, her
headaches got worse but were assisted by physiotherapy. She would obtain relief
following physio, but the headaches would return with increased severity.

[46]    Other symptoms also continued, but the headaches
were the worst and they affected her ability to sleep. She described the
triggers which caused and still cause headaches today: working too much,
stress, standing too long and lifting.

[47]    The headaches start with a normal level of pain
but once they move into the right side, unless she gets treatment or takes
medications, she has to “retreat” from life. The duration of her headaches
seems to depend on the treatment she obtains. If she neglects to obtain
treatment, her headaches can last as long as a week. The most successful
treatment she has received is massage.

[48]    The plaintiff agrees that her symptoms were much
worse following the accident. Now her headaches and jaw pain are intermittent
and she can go five to six weeks headache-free. However, the qualification here
is that if she does not get treatment on the onset of any symptoms, she will
develop headaches of long duration and have to give up all activities until
they recede. As she describes it, she just stops.

[49]    When her neck symptoms are bad, she can develop
a lump on her neck. In that case she will go for chiropractic treatment,
something she considers an extreme remedy.

[50]    Her neck has improved and she can now go for six
weeks or so without neck symptoms. She finds that using the hot tub at her
house helps.

[51]    The pain in her shoulders presents with all the
other symptoms. Her pain is worse on the right side. Once again, it seems to be
treatment-dependent and if she does not get treatment for symptoms in her head
and neck, the pain will move into her shoulders, namely her scapula and
pectoral muscles. With treatment, the pain and stiffness in her shoulders and
upper back diminish.

[52]    She believes all of her upper body and head pain
are related so that if she does not obtain treatment promptly when one set of
symptoms begins to cause pain, the other symptoms seem to follow.

[53]    Low back and hip symptoms seemed to arrive after
the upper body symptoms.

[54]    These symptoms commence in the center of her
spine above her buttocks and the pain radiates to the right and down into her
right hip and buttock. The pain is very intense when it comes and is
accompanied by stiffness. It is now quite intermittent, every two months or so,
and causes less difficulty than the upper back problems. Massage helps, but the
tenderness which accompanies this set of symptoms affects the plaintiff’s
activities of daily living.

[55]    When the symptoms occur and are painful, the
plaintiff feels unmotivated, frustrated, hopeless and depressed and she
withdraws from life. Once she gets treatment, she feels able to start living
again.

[56]    While there is no claim for brain injury, the
plaintiff asserts that her pain causes her to be distracted and affects her
memory and concentration until the symptoms go away.

[57]    Immediately post-accident, the plaintiff’s
energy was low. She states that it is intermittent now depending on the state
of her symptoms.

[58]    The other major effect on the plaintiff’s
health, which she asserts resulted from the accident on December 7, 2008,
relates to her ability to sleep. Her sleep was badly affected at first and she
could not sleep without the use of medications. Now she states the problem has
declined to where every one or two months she will have problems sleeping.
However, she found the use of sleep aids problematic since she would not obtain
eight hours of sleep with them and often awoke feeling groggy and unrested.

[59]    The treatments she has undergone since the date
of the accident are as follows:  eight physiotherapy sessions, six massage
treatments, two chiropractic treatments and one osteopathic treatment.

[60]    She described the osteopathic treatments as
similar to chiropractics but more gentle. The plaintiff felt she obtained the
best relief from this form of treatment.

[61]    The plaintiff explains the gap in her physiotherapy
treatments as resulting from her inability to pay for them. Her law firm
advanced the cost of three physiotherapy sessions in 2010, two sessions of
massage therapy and one osteopathic treatment in 2011.

[62]    The total of her special damages for treatments
is $1,826.19, including an additional $45 session of physiotherapy in the
summer of 2009, for which she has no receipt. The bulk of her prescription
costs she says were paid for by her drug plan and she largely relied on
over-the-counter medications after the initial prescriptions from Dr. Klein.
She claims an additional $200 for these non-prescription medications for a
total of $2,026.19 in special damages.

[63]    It was in cross-examination that details of the
plaintiff’s pre-existing condition were brought out.

[64]    She was diagnosed in 2004 by her doctor as
having a scoliosis of her cervical spine with accompanying strain in her
trapezius muscles. Dr. Klein prescribed massage therapy.

[65]    The plaintiff underwent massage therapy and
chiropractic treatment and used orthotics for back pain on the recommendation
of the chiropractor in 2004. She continued with the chiropractic treatment in
2005, but developed some lower back pain which she was concerned were a
consequence of the chiropractic treatment of her upper back.

[66]    The plaintiff described how in the period of
2005-2006 she had a chronic issue with her sacroiliac joint which was helped by
osteopathic treatment by Dr. Blaney.

[67]    According to Dr.Klein’s records, the plaintiff
also sought treatment for sleep problems in 2005 and was prescribed Immovane.
The plaintiff attributed her problems to a death in the family and a
troublesome sinus infection.

[68]    In July of 2005, the plaintiff consulted a
colleague of Dr. Klein’s and he noted that she had had chronic back pain on and
off for several years. He noted that she was tender bilaterally over the
sacroiliac joints and the range of motion of her lumbar spine was limited.

[69]    After a radiological exam and a CT scan, it was
noted that the plaintiff had a small disc bulge and scoliosis in the lower and
upper back. She was prescribed Naproxen, an anti-inflammatory, but was very
anxious about taking prescribed drugs. Instead, she was taking eight Advils a
day and Dr. Klein warned her about the risks.

[70]    Her back pain persisted through 2005, although
consulting Dr. Blaney, the osteopath, and receiving his treatment in October
2005 seemed to assist. Her own doctor had suggested she try acupuncture for her
sacroiliac joint pain since chiropractic treatment was not helping.

[71]    On his first consultation with the plaintiff,
Dr. Blaney noted she was suffering from increased pain in the right sacroiliac
joint.

[72]    The plaintiff consulted Dr. Blaney yearly after
2005 and on December 4, 2008, his notes indicate she complained of pain in her
right sacroiliac joint and an increase in pain in her right shoulder since
August of that year. He also noted she complained of pain in her right buttock
and difficulty sleeping.

[73]    Although the plaintiff had indicated she was an
easygoing person before the accident, she was prescribed Ativan, an
anti-anxiety drug, by Dr. Klein in 2006. The plaintiff stated she was suffering
from the loss of her father when it was prescribed. She also said she had
sleeping problems and mood issues with the emotional stress following some of
her personal losses.

[74]      The plaintiff had several other personal
crises in 2006 and 2007 and was again prescribed Ativan at her request in
September and October of 2007. She explained that it helped her sleep.

[75]    The plaintiff had been consulting the same
doctor, Dr. Klein, since 1994. She saw him the day after the accident and then
did not consult him again about symptoms arising from the accident until a year
and a half later, in April 2010. In that interval she saw him several times
about other issues, but did not raise any concerns about her accident-related
issues. She stated that he was a doctor who prescribed and referred.

[76]    The plaintiff had five physiotherapy treatments
and one massage therapy treatment from December 9, 2008 to January 2009, but
did not see any other professionals until June 2009.

[77]    The plaintiff stated she had no money left for
treatment, so could not go for more. However, I note she was working until
February and had health benefits coverage until April 2009 and severance pay
until the end of July 2009.

[78]    The plaintiff filled only two prescriptions
following the accident. She explained that after she lost her drug coverage,
she could not afford prescriptions so she used over the counter drugs. She
agreed that she would have consulted Dr. Klein for stronger drugs if she were
desperate enough. She also said she minimizes her drug use wherever possible because
she does not like to take drugs.

[79]    The plaintiff also agreed that by 2010 she was
in a recovery phase, but was suffering stress connected to many unrelated
events.

[80]    On her return to work at Holt Renfrew
post-accident, the plaintiff could control her environment somewhat. She chose
to avoid repetitive bending and to wear comfortable shoes. No one was critical
of her for making these choices, but she did not take the initiative to advise
management of the steps she had taken due to the accident.

[81]    When she was asked whether she could have
continued working at Holt Renfrew with these limitations, she said she did not
feel she could do so indefinitely, although this would be dependent on staff
coverage.

[82]    When she was asked if she could have returned to
work at a retail job after her severance expired at the end of July 2009, she
stated she could have but not without difficulty. This was despite the fact
that she had put her name out immediately for work in the busy season leading
up to Christmas and for special events after she received her notice of
termination.

[83]    That initial job
search she began in the spring of 2009 and she described it in her discovery on
February 9, 2011 as follows:

345      Q         When did you begin that search?

A          I would say I began a brief
search in the spring following the lay-off, and then feeling not very satisfied
by it, I decided to take the summer off. And then after that, in the fall, my
boyfriend at the time got into a serious bike accident and was off work, so I was
caretaking for him.

[84]    She was then asked
when she did look for work:

347      Q         .
. . and then did you begin looking for work again at some p            point?

A          I was caretaking for him round
the clock for several months, and then briefly after his recovery I went through
a time of some personal grief and issues and some trauma, and from that point
up until just recently I was not searching for work, but now currently am.

[85]    The termination of the plaintiff from her
employment occurred on February 9, 2009. At this time, there was a reduction in
the employment complement at Holt Renfrew of 27 people. In the small department
of which Ms. Fuchser was a part, three were terminated.

[86]    In all, Ms. Fuchser received about seven and a
half months of severance pay. She was paid until July 28, 2009. The plaintiff
felt that her termination was a result of her reduced physical stamina and
mood, which led to a decrease in her sales performance.

[87]    However, there was simply no evidence to support
her contention. The Holt Renfrew witnesses who were called, testified to the
employment reduction as a result of the decline in the economy. While both
witnesses agreed that Holt Renfrew would keep its highest-performing employees,
they were clear that Ms. Fuchser was not terminated for reasons of performance.

[88]    However, Ms. Roth, Ms. Fuchser’s direct
supervisor, did point out that even before the accident, Ms. Fuchser missed on
average one day every two weeks and had a problem with tardiness.

[89]    Immediately following receipt of the termination
letter, Ms. Fuchser was shocked, but she took steps to look for new employment,
again in the retail field. She contacted vendors with whom she dealt to let
them know she was available for product launches and special events and would
be available for the next Christmas season.

[90]    With no success from her contacts, she made the
decision that she would take the full severance period to recover not only from
the accident, but from the effect of unresolved grief due to a number of
deaths, which had occurred over the past few years, of close family members and
the murder of her mentally-ill ex-husband.

[91]    The plaintiff began to consider looking for
employment at the end of her severance period, but in September 2009, her
partner had a serious motorcycle accident and she became his full-time
caretaker. He was on strict bed rest for some time and the plaintiff was
attempting to look after him. She stated that she felt unable to do retail work
that Christmas, as well as continue to look after Mr. Wilson. She opted to look
after him to the best of her ability and not to search for employment. By then
she had decided that working in retail was not something she could do any
longer.

[92]    She does not attribute all of the time between
the accident and her return to work in March 2011 as due to recovery from the
accident. In fact, she stated that she wanted to work from February 2009 to
March 2011 (when she did begin working), but her injuries and all her personal
losses, and then looking after her partner, all contributed to her uncertainty
about her future.

[93]    In the spring of 2010, she began to explore the
possibility of doing foster care for babies born drug-addicted. However, she
needed a partner to assist and by that time Mr. Wilson had gone back to work.

[94]    She and Mr. Wilson broke up at the end of the
summer of 2010. The plaintiff was very depressed and underwent therapy. Both
she and Mr. Wilson gave evidence that her accident injuries did not cause the
break-up, but were a contributing factor.

[95]    Although the break-up with Mr. Wilson was
difficult, according to her doctor Ms. Fuchsler was not suicidal or hopeless
after it occurred in July 2010.

[96]    The plaintiff has formed a new relationship with
Joshua Fulford, which she says is a good one. She attends some of the
performances of his band, they go to movies, restaurants, go out for coffee and
go for walks. At the time of trial they had been together just over a year.

[97]    After her severance ended in 2009, the plaintiff
was in receipt of Employment Insurance which required that she be looking for
work. By the end of 2010 and beginning of 2011, she was feeling better, both
physically and emotionally, so was not only able, but financially motivated to
search for employment.

[98]    She contacted a friend who was also unemployed
and the two of them began to put together a business in which they would help
people to organize themselves. Some of their customers were quasi-hoarders,
some were elderly people seeking to downsize or to move into care homes, some
were just people with too many possessions who needed help to organize them.

[99]    Initially she subcontracted to established
services. Soon she was able to operate with her own customers.

[100]   The plaintiff is able to hire people to do any
heavy work which needs to be done. She explains that the job she has created is
physical, but does not require repetitive lifting or standing for long periods.

[101]   The hours she chooses to work in a week depend
on how she is feeling and how much work she has solicited. Some weeks she may
only work five hours and another week she may work 40 hours. If she has too
much work in a particular week, she will farm it out. She states that if she
were physically able and could solicit more, she could have limitless work to
do.

[102]   Her hourly rate varies from $25 to $40 per hour,
depending on the customer’s ability to pay. The flexibility of her schedule
suits the plaintiff since she can decide the number of hours she wants to work.

[103]   The plaintiff’s income tax returns to 2007 have
been filed as exhibits. She has not filed any returns after 2007.

[104]   Her line 150 income in 2004 was $37,224.00; in
2005 $34,715.00; in 2006 $34,772.00; and in 2007 $26,829.00. Her T-4 for 2008
indicates $35,737.00 in insurable earnings and her T-4 for 2009 shows
$21,166.00 in insurable earnings from Holt Renfrew. Her 2010 income documents
have not been produced but according to her evidence would consist of
Employment Insurance benefits.

[105]   By the date of trial in October and November of
2011, she had earned $8,500 since March 2011, when her business got going.

[106]   The plaintiff states that when her symptoms
worsen, she is forced to limit her hours of work and cannot go after additional
work. This affects her income.

[107]   She has had to bring people in to assist with a
job when her symptoms appear and says this has happened about three times since
March with an estimated loss of $1,000 – $2,000. On other occasions, she has
had to delay completion of a job and thus delay the commencement of the next
job, resulting in a loss of income.

[108]   She has not produced documents that were related
to earnings from her business or the costs of bringing in assistance when her
symptoms worsened.

[109]   The plaintiff claims damages for loss of
housekeeping capacity in the range of $10,000 – $20,000.

[110]   She states that right after the accident, she
was unable to do much at all and Mr. Wilson had to help her. Now she has
learned to use different techniques to, for example, wash the floor. Rather
than get down on her hands and knees, she puts a hot soapy cloth on the floor
and moves it with her feet. She takes her garbage out in small loads. She asks
for help from her roommate to take laundry out of the washer and put it in and
take it out of the dryer. Vacuuming was difficult for her immediately after the
accident. Now either her niece, Jessica, or her partner, Joshua Fulford, gets
the vacuum out and she vacuums, but one of them will put it away when she is
finished.

[111]   Mr. Wilson changed the bed after the accident
until he was injured. Now the plaintiff does it, but it takes her longer than
it used to.

[112]   Exterior house maintenance is now done by a
handyman paid by the landlord.

[113]   The plaintiff no longer mows the lawn. Either
her niece Jessica does it or she hires a local teenager. There was no evidence
of the cost of having others do the lawn.

[114]   The plaintiff divides up her grocery shopping so
that she does a bit at a time. If she requires a large number of items, she
asks her friend, Ms. Siverson, or her sister to drive her and to carry any
large bags.

[115]   Ms. Siverson agreed that when she takes the
plaintiff shopping, she carries the heavier bags to the car.

[116]   The plaintiff has not owned a car since well
before the accident.

[117]   With respect to the cost of future care claim,
the plaintiff points to the treatment recommendations at page 6, tab 4 of
Exhibit 1, Dr. Hershler’s report. She says she would follow his recommendations
for massage therapy, osteopathic treatment, personal training sessions to
develop an exercise program, and physiotherapy for a total cost of $7,209.60.

[118]   The plaintiff was involved in another accident
in July 2009 or 2010. She could not recall the year in which it occurred.

[119]   In this accident, her sister was driving a newer
Volvo ‘S’ which was hit on the right front as she turned left in front of an
oncoming car. The airbags did not deploy. The plaintiff, who was seated in the
front passenger seat on the side of the impact, received a bruise on her right
arm, but states she was otherwise uninjured. The accident, which took place in
Lacey, WA., resulted in the car being spun around, its bumper pulled off and
its headlight broken.

[120]   She did not consult a doctor about this accident
and did not tell her own doctor or Dr. Hershler about the accident when
attending on them for the purpose of obtaining an expert report. She stated
that there was no effect on her earlier injuries and as a result she did not
report it to her doctor or her physiotherapist.

[121]   There were no documents concerning this accident
with the result that the evidence of the plaintiff about it was the only
information before the court.

Medical Evidence

A.       Dr. Hershler’s Report

[122]   Dr. Hershler’s evidence was taken by deposition.
In addition, an expert report was filed and is found at Exhibit 1, tab 4.

[123]   Dr. Hershler’s qualifications were not
questioned and he was accepted as an expert in physical and rehabilitative
medicine. He has given evidence before the courts on many occasions.

[124]   The report itself is short and opines that Ms.
Fuchser’s symptoms of pain are related to the accident of December 7, 2008. He
adverts as well to her pre-existing scoliosis and pelvic malalignment and says
that they “probably” pre-exist the accident.

[125]   It is clear that his history is based on the
plaintiff’s narrative and thus it is an important component of his opinion. Of
course, if the plaintiff either neglected or forgot to mention significant
events in her medical history, Dr. Hershler’s opinion could be affected.

[126]   In the interests of completeness of the history,
it would have been useful for the plaintiff to tell him of her involvement in
the accident in Lacey, WA.

[127]   I note that Dr. Hershler consulted Ms. Fuchser’s
records in the preparation of his opinion. If that is the case, I find it
somewhat surprising that he would have noted the scoliosis and the pelvic
malalignment only “probably” pre-dated the accident in December 2008. The
plaintiff’s records indicate that Dr. Klein had diagnosed the scoliosis in
November 2004. Subsequent diagnostic tests took place in 2005.

[128]   I also find the
following comments in his report surprising:

The scoliosis and skeletal
malalignment probably predated the accident, but were rendered symptomatic by
it. It is also likely that the pelvic malalignment was made worse by the same
accident. I base this on the fact that Ms. Fuchser’s symptoms essentially
began following the accident. She did have a prior history of intermittent
upper back symptoms, but these were short-lived. . . . [Emphasis added.]

[129]   Ms. Fuchser’s medical records show continuing
issues with her sacroiliac joint and upper and lower back over several years.
In fact, if Dr. Hershler had indeed reviewed the plaintiff’s medical records,
he would have found that she had suffered from both upper and lower back pain
and on-going pain in her right sacroiliac joint and right upper back as
recently as three days before the accident. She reported these issues on a
visit to her osteopath on December 4, 2008.

[130]   It is simply not accurate to say that Ms.
Fuchser’s symptoms essentially began following the accident. It may be accurate
to say that they became worse, based on her reports, but certainly she had
suffered from the same or similar symptoms on and off over several years.

[131]   I note as well, that Dr. Hershler agreed in
cross-examination that his finding that the accident made her pelvic
malalignment worse was speculation on his part.

[132]   The low back pain which Ms. Fuchser states arose
from the accident was a relatively recent part of her pain presentation. While
the physiotherapist, Mr. Ho, found some signs of low back issues immediately
after the accident, it appears from Dr. Hershler’s comments on deposition that
he understood the low back pain to have developed gradually in 2010. He agreed
on cross-examination that the sacroiliac problem was pre-existing and
developmental and the gradual onset pain which manifested in 2010 could have
been aggravated by activities of daily living, including sitting a lot.

[133]   With respect to his statements about limitations
on the plaintiff’s capacity to work in the future, he was candid that he
accepted her assessment of what she could or could not do. He relied on that
assessment when he stated his suggested limitations for the future. He also
agreed that the plaintiff could work in a retail environment if she could avoid
heavy lifting.

[134]   To be fair to Dr. Hershler, there was no
functional capacity evaluation performed which could be provided to him.

[135]   I note that neither Dr. Hershler nor Dr. Klein
stated the plaintiff could not perform a job which required standing for
periods of time.

B.       Dr. Klein’s Report

[136]   Dr. Klein was qualified as an expert in family
practice. In this litigation, he is called both as an expert and as the
treating physician. This caused some complications with respect to the evidence
elicited in direct examination. Some of the evidence elicited with respect to
his clinical records were not part of his expert report and would not be
admissible as they are not in compliance with the Rules of Court related to
expert evidence. Other parts of the evidence set out in the clinical records of
his treatment of the plaintiff were hearsay or irrelevant.

[137]   The process to which counsel agreed with respect
to the objection made by counsel for the defendants was that I would hear the
entire deposition and the objection would go to the weight I would give to Dr.
Klein’s answers to counsel for the plaintiff.

[138]   Dr. Klein has been the plaintiff’s family
physician since 1994, when she arrived in Canada.

[139]   His report is found at tab 9 of Exhibit 1.

[140]   Dr. Klein opined that the symptoms of pain in
the plaintiff’s right sacroliliac joint and upper back were the result of the
accident. He made this statement on the basis that although the plaintiff had
suffered from pre-existing intermittent right sacroiliac joint pain and spinal
scoliosis previously, she had “been doing very well for years before the
accident”.

[141]   It appears Dr. Klein was unaware of the
plaintiff’s visit to the osteopath three days before the accident because of
the increase in pain she had been suffering to her right sacroiliac joint and
right upper back.

[142]   After the accident, the plaintiff saw Dr. Klein
on December 8, 2008, April 14, 2010, August 19, 2010 and January 27, 2011, with
complaints about symptoms from the accident.

[143]   She did visit the doctor on other occasions: 
May 9, 2009, September 14, 2010 and November 4, 2010, for reasons unrelated to
the accident.

[144]   By April 14, 2010, her lumbar range of motion
was normal, but her lumbar extension was painful as was her right sacroiliac joint.
She also stated her lower back pain was continuing. She was again referred to
the osteopath and to physiotherapy.

[145]   Dr. Klein agreed that the symptoms she
complained of in the April 2010 consult were very similar to those she suffered
from in the period 2004 and 2005.

[146]   By August 2010, her lumbar extension was normal
and she could touch her ankles on flexion. However, she continued to have pain
in her right sacroiliac joint and her upper back was tender.

[147]   She reported to Dr. Klein in September 2010 that
she was unable to work, but it was clear that her inability to work was
unrelated to her accident symptoms. She was suffering from the end of her
relationship and from anxiety related to other emotional problems in her life.

[148]   With respect to her capacity for future
employment, Dr. Klein states that she “will never be able to do any form of
work that requires hard labour, heavy lifting, or repetitive bending/lifting.”

[149]   He did not address her ability to stand for
periods of time.

[150]   On cross-examination, Dr. Klein agreed that the
limitations he stated on her capacity to work would have been the same in
September 2005 because of her sacroiliac joint problem. However, I note that
she did continue to work at her retail job until February 2009.

[151]   With respect to the plaintiff’s pre-existing
issues concerning her scoliosis, disc bulge and sacroiliac joint problems, Dr.
Klein agreed that all of these problems could and did arise without any
particular precipitating event and explained the problems she had in 2004 and
2005. He stated as well that the sacroliliac pain could get worse and then get
better and so on. The muscle strain suffered by the plaintiff pre-accident
could be secondary to stress, a condition which he was aware the plaintiff had
had a great deal of over the years preceding and following the date of the
accident in December 2008.

[152]   He was also aware of the plaintiff’s problem
with anxiety pre-accident for which he had prescribed Ativan. He attributed her
sleeping problems during 2006 and 2007 to anxiety as well.

[153]   Dr. Klein also opined that as of May 20, 2011, the
date of his letter, the plaintiff “is now capable of her activities of daily
living and pursuing social, leisure interests.”  He recommended that she avoid
pursuing contact sport or rigorous athletic activities, but since, in Mr.
Wilson’s description, she was not a “sporty girl” before the accident, it did
not appear she had great interest in such activities.

Other Lay Witnesses

[154]   Both the plaintiff and the defendants called lay
witnesses. The plaintiff called Mr. Wilson, her former partner, Ms. Siverson,
her friend, Mr. Fulford, her current partner and Jessica Crosson, her niece.

[155]   The defendants called Ms. Vanselow, another
niece of the plaintiff who is a defendant in this case and a plaintiff in her
own case arising from the accident, Sarah Roth, the plaintiff’s manager at Holt
Renfrew, and Karen Wilkins, regional manager of Human Resources at Holt
Renfrew.

[156]   I should note that Ms. Roth and Ms. Wilkins
testified that the plaintiff was not terminated for performance reasons,
although she was not a star performer, but due to the economic downturn which
necessitated lay-offs across Canada. Ms. Wilkins also testified that the
plaintiff had not made known to her that she had limitations on her duties as a
result of the accident.

[157]   Ms. Roth did not notice any changes to the
plaintiff’s performance and manner after the accident. She surmised that
perhaps the plaintiff was a little more withdrawn, but that this did not seem
to affect her interactions with customers.

[158]   Mr. Wilson, Ms. Siverson and Ms. Crosson stated
that they saw changes in the plaintiff post-accident. Ms. Vanselow says she did
not see changes, but acknowledges that both she and the plaintiff were focused
on their own symptoms.

[159]   Mr. Fulford was not around at the time of the
accident, but says the plaintiff now has good days and bad. However, without a
basis for comparison, he is of little help to assess her current condition
compared to her condition before the accident.

[160]   I have mentioned in passing certain elements of
the lay witnesses’ evidence. With the exception of the pieces of evidence I
have mentioned, I did not find their evidence to assist with what I believe to
be the central issue of the case:  the extent of the pre-existing condition of
the plaintiff and its relationship to causation of her continuing symptoms from
what was, relatively speaking, a minor rear-end accident.

[161]   When I say this was a relatively minor rear-end
accident, I am in no way suggesting that the plaintiff did not suffer injury as
a result of the impact of Ms. Vanselow’s car with Mr. Wilson’s car. However, a
survey of the damage to his car and to the front of Ms. Vanselow’s car (as seen
in Exhibit 1, tabs 30 and 31) does not reveal major damage.

Causation

[162]   It is, of course, the plaintiff’s burden to
prove on a balance of probabilities that the defendants’ negligence caused or
materially contributed to the plaintiff’s injuries. The defendants’ negligence
need not be the sole cause of the injury so long as it is part of the cause
beyond the range of de minimis. Causation need not be determined by
scientific precision:  Athey v. Leonati, [1996] 3 S.C.R. 458 at paras.
13-17.

[163]   The primary test for causation asks: “but for”
the defendants’ negligence, would the plaintiff have suffered the injury?  This
test “recognizes that compensation for negligent conduct should only be made
“where a substantial connection between the injury and the defendant’s conduct”
is present”: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[164]   Causation must be
established before damages are assessed. As McLachlin, C.J.C. stated in Blackwater
v. Plint, 2005 SCC 58 at para. 78:

Even though there may be several
tortious and non-tortious causes of injury, so long as the defendant’s act is a
cause of the plaintiff’s damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the plaintiff
would have been. The governing principle is that the defendant need not put the
plaintiff in a better position than his original position and should not
compensate the plaintiff for any damages he would have suffered anyway: Athey
v. Leonati, at para. 60.

[165]   A basic principle of tort law is that through
the award of damages, the plaintiff must be placed in the position she would
have been if not for the defendants’ negligence. The tortfeasor must take his
or her victim as they find them, even if the plaintiff’s injuries are more
severe than they would be for a normal person (the “thin-skulled rule”).
However, the defendants need not compensate the plaintiff for any debilitating
effects of a pre-existing condition which the plaintiff would likely have
suffered in any event (the “crumbling skull rule”): Athey, at paras.
32-35.

[166]   In British Columbia, the Court of Appeal in T.W.N.A.
v. Canada (Ministry of Indian Affairs, 2003 BCCA 670, adopted a statement
made by Major J. in Athey that “if there is a measurable risk that the
pre-existing condition would have detrimentally affected the plaintiff in the
future, regardless of the defendant’s negligence, then this can be taken into
account in reducing the overall award”: at para. 27; See also Athey, at
para. 35. The Court of Appeal stated that a “pre-existing condition, whether
quiescent or active, is part of the plaintiff’s original position”: T.W.N.A.,
at para. 28.

[167]   The pre-existing condition need not be manifest
and disabling at the time of the tort for the plaintiff to come within the
crumbling skull rule. T.W.N.A. held that there need only be a measurable
risk that the degenerative changes would have become symptomatic without the
accident: at paras. 27, 33-35, 61-63.

[168]   This means that a reduction of damages in cases
where there is a pre-existing condition is not restricted to a situation where
there is a “manifest and presently disabling” condition. It also extends to
situations in which the evidence supports a finding of a measurable risk that
the condition would have occurred without the tort.

[169]   It is my view that the plaintiff in this case
suffered from pre-existing conditions, namely scoliosis, pelvic malalignment
and sacroiliac joint pain, all associated, which were active and unpredictable.
In addition, she suffered right sided pain in her upper back, which was part of
her overall condition, but was exacerbated by stress.

[170]   The accident of December 7, 2008 caused an
exacerbation of her conditions and she suffered from increased pain which in
turn affected the ways in which the pre-existing conditions manifested
themselves. She again suffered sleeplessness as she had when her sacroiliac
pain had been acute in the past. Her right upper back became stiff and painful,
similar to how she had reacted to stress and lower back pain in the past. The
headaches were a new manifestation, but no doubt related to the cervical strain
she suffered in the accident.

[171]   There can be no doubt that she lived with
increased pain over a period of about a year before she began to show
improvement.

[172]   Based on a review of the plaintiff’s history
with Dr. Klein and Dr. Blaney, the osteopath, I cannot say that her
pre-existing condition was so quiescent as to be asymptomatic when she was a
passenger in Mr. Wilson’s car struck by Ms. Vanselow’s car in December
2008.

[173]   I find that there was a measurable risk that the
degenerative changes would have become symptomatic without the accident. Dr.
Klein agreed that the earlier low back problems she had had came on without any
precipitating cause and that the scoliosis and disc protrusion could have
explained those problems. He also agreed that tightness in the muscles (as in
her right upper back) can be caused by stress.

[174]   Dr. Klein also agreed that simple activities of
daily living can cause exacerbation of an existing problem such as the on and
off back problems suffered by the plaintiff over many years due to her
scoliosis and associated issues.

[175]   Dr. Blaney’s note of December 4, 2008, three
days pre-accident, reveals complaints of right sacroiliac joint pain, an
increase in right shoulder pain and pain in the plaintiff’s right buttock.

[176]   I will proceed with the award of damages and
will discount the applicable heads for the effect of the pre-existing
conditions.

Damages

A.       Non-pecuniary damages

[177]   The purpose of non-pecuniary damage awards is
to “compensate the plaintiff for pain, suffering, loss of enjoyment of life and
loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134; see
also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; and Kuskis
v. Tin, 2008 BCSC 862 [Kuskis]. While each award must be made with
reference to the particular circumstances and facts of the case, other cases
may serve as a guide to assist the court in arriving at an award that is just
and fair to both parties: Kuskis, at para. 136. Nevertheless, as Madam
Justice Dickson stated in Kuskis, “Such cases, though helpful, serve
only as a rough guide. Each case depends on its own unique facts”:  at para.
136.

[178]   There are a number
of factors that courts must take into account when assessing this type of
claim. Madam Justice Kirkpatrick, writing for the majority, in Stapley v.
Hejslet, 2006 BCCA 34, outlines the factors to consider at para. 46:

[46]      The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] 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, [Liang and Zheng,] … 2005 BCCA
54).

[179]   The assessment of non-pecuniary damages must be
informed by the plaintiff’s personal experience dealing with her injuries and
their consequences.

[180]   Here, the plaintiff has given extensive evidence
of the effect of her injuries on her lifestyle.

[181]   She is relatively young and was not involved in
any organized sports prior to her injuries. The injury was a moderate
whiplash-type injury complicated by her pre-existing condition. The pain she
suffered was not minimal and did have an effect on her family and social
relationships. I cannot say, as she did not say, that it caused the demise of
her relationship with Mr. Wilson. However, she did say, and I do not doubt,
that her continuing pain had an effect on their situation.

[182]   Did the plaintiff suffer emotionally as a result
of her injuries?  I found her evidence to be somewhat exaggerated on the issue
of the injuries causing continued depression, frustration and hopelessness. I
do not doubt that pain is tiring and disheartening, but here, again, the
plaintiff’s emotional condition was so complicated by her many personal crises
that it is impossible to attribute her reactive depression entirely or even
mainly to the injuries caused by the accident.

[183]   As for loss of lifestyle, the plaintiff is no
longer able to garden or perform home improvement projects as she used to.
These are losses to her.

[184]   I find that the plaintiff’s injuries from the
accident would have begun to resolve by approximately one year from the date of
the accident. In support of this conclusion, I point to her infrequent
attendances on Dr. Klein, her need for only two prescriptions from him, her
infrequent treatments after December 2008 and the general lack of objective
evidence other than the appearance of a muscle “knot” on her neck, to support
the debilitation allegedly caused by the accident. In contrast to her irregular
attendances on Dr. Klein for her accident-related symptoms, she saw him
regularly for other matters during the same period and used Ativan and Immovane
previously for anxiety and sleeplessness.

[185]   I point as well to the plaintiff’s candid
admission that she does not attribute her lengthy time off work entirely to the
effects of her injuries from the accident. She was open about having made a
conscious decision to “take a breather” from work to heal from her various serious
personal issues.

[186]   She also agreed that she was in the recovery
phase by 2010.

[187]   The plaintiff submits that non-pecuniary damages
in the range of $70,000 to $85,000 should be awarded. She argues the “resulting
injuries [have] caused a massive change in … [her] physical abilities, energy
levels and happiness.”

[188]   In support, Ms. Fuchser cites Vershinin v.
Hayward, 2010 BCSC 1315; K.T. v. A.S., 2009 BCSC 1653; and Chaban
v. Chaban, 2009 BCSC 87.

[189]   I note that in K.T., in which the court awarded
$70,000 in non-pecuniary damages, the plaintiff was 17 years of age at the time
of the motor vehicle accident. This is some 18 years younger than Ms. Fuchser
was in December 2008.

[190]   In the other cases cited by counsel, it is my
view that the plaintiffs’ physical injuries and the impact to their lifestyle
were more severe than the evidence before me in this case.

[191]   The defendants cite cases ranging from $25,000
to $30,000 in pecuniary damages: Foo v. Masardijian, 2009 BCSC 1519; Robinson
v. Anderson, 2009 BCSC 1450; Smith v. Wirachowsky, 2009 BCSC 1434.

[192]   In Smith, before awarding $30,000 in
non-pecuniary damages, the court found that the plaintiff’s “acute problems
lasted for a maximum of six weeks”: at para. 86. In that case, the plaintiff
had returned to most of her activities within six months of the accident: at
para. 86. This is not the case with Ms. Fuchser.

[193]   I have carefully considered the cases on damages
set out in both the plaintiff’s and the defendants’ brief of authorities. I
award $50,000 in non-pecuniary damages to be subject to deduction for the
pre-existing condition.

B.       Past Wage Loss

[194]   Notwithstanding the fact that I have found her
injuries would have begun to resolve by one year from the accident, I cannot
find that the plaintiff was unable to work for that length of time.

[195]   She did return to work after one week off with a
net wage loss of approximately $386 and worked until she was terminated in
February 2009. She received severance pay until July 29, 2009.

[196]   The plaintiff agreed she could have gone back to
work at that time but for the injuries suffered by Mr. Wilson which required
her complete attention for some months.

[197]   Therefore, for past wage loss, I award the net
sum of $386.00. This amount is not subject to deduction.

C.       Future Loss of Capacity

[198]   In Hooper v. Nair,
2009 BCSC 862, I set out the elements to be proved to demonstrate a loss of
capacity as follows, at paras. 119-125:

[119]    In order to be successful under this head of damages,
the plaintiff must prove a substantial possibility of future income loss:  see Parypa
v. Wickware, 1999 BCCA 88, 169 D.L.R. (4th) 661; Steenblok v. Funk
(1990), 46 B.C.L.R. (2d) 133, [1990] B.C.J. No. 1158 (C.A.); Steward v.
Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152.

[120]    The purpose of this damage award is to compensate
the party for the loss of earning capacity as a capital asset, not to
compensate for the lost earnings themselves:  see Palmer v. Goodall
(1991), 53 B.C.L.R. (2d) 44 at 59, [1991] B.C.J. No. 16 (C.A.); Parypa
at para. 63.

[121]    In considering this claim, a court must determine
the extent of the future loss of income-earning capacity by taking into account
all substantial possibilities and assessing the likelihood of their occurrence,
based on the evidence: Parypa at para. 67; Steward at para. 17.

[122]    There are, of course, inherent difficulties in
assessing such damages which were recognized by Justice Dickson (as he then
was) in Andrews, where he stated at 251:

We must now gaze more deeply into the crystal ball. What sort
of 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: A capital asset has
been lost: what was its value?

[123]    To assist in this assessment, there are four
considerations which are often cited in determining the value of the loss and
are set out in the decision of Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353, [1985] B.C.J. No. 31 at para. 8 (S.C.) [Golaiy]:

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.

[124]    While a first step in this determination may involve
some element of mathematical calculation, “the law is clear that in these cases
the task of the court is to assess damages, not to calculate them on some
mathematical formula”: Mulholland (Guardian ad litem of) v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248, [1995] B.C.J. No. 1823 at para. 43 (C.A.).

[125]   A court must consider all
of the evidence that is reasonable in the circumstances in assessing such an
award; reference to projections, calculations and formula may be useful insofar
as determining what is “fair and reasonable”: Parypa at para. 70. It is
important for courts to “look at all relevant factors, especially general
incapacity, before fixing an amount”: Morris v. Rose Estate (1996), 23
B.C.L.R. (3d) 256, 75 B.C.A.C. 263 at para. 24. A court should also be guided,
to some extent, by the claimant’s actual earnings prior to the accident: Smith
v. Knudsen, 2004 BCCA 613, 247 D.L.R. (4th) 256 at para. 34 [Knudsen].

[199]   There was no functional capacity evaluation
provided in this case. The court is, therefore, somewhat limited in attempting
to analyze the plaintiff’s loss under this head of damages.

[200]   I have taken into account the limitations set
out in Drs. Klein’s and Hershler’s reports, but I must say that the work
performed by the plaintiff prior to the accident did not involve heavy labour
except for restocking her counter. It appeared she could compensate by doing
more trips, depending on staff coverage, which would not and did not appear to
compromise her physical condition. Neither doctor commented on her ability to
stand and in her new employment she must stand and move as she assesses
customers’ needs.

[201]   I find she could return to a retail job as long
as it was similar to her job at Holt Renfrew and did not require her to perform
heavy labour. Therefore, her former occupation is not closed to her as a result
of her injuries.

[202]   Ms. Fuchser was not a high earner before the
accident. She commuted downtown from New Westminster to Holt Renfrew on a
full-time flexible schedule subject to changes dictated by staff needs. She
hoped to stay at her job and to move up, but the evidence of Ms. Roth was that
she was only a mediocre employee. I take from Ms. Roth’s comment that the
plaintiff would not have been likely to be promoted had she retained her
employment at Holt Renfrew.

[203]   The plaintiff’s average earnings for complete
years from 2004-2008 were approximately $33,800.

[204]   In her new occupation, according to her evidence
and without supporting documentation, she earned about $850 per month up to the
date of trial.

[205]   However, she has complete freedom to work as and
when and as much as she chooses at a higher hourly rate than she earned at her
previous job. Although she relates her reduction in earnings to her injuries,
there is no question she has a more enjoyable work life than she did before.

[206]   She has also demonstrated a willingness to
forego income when she believes it is better for her to take time to heal from
either emotional or physical  problems.

[207]   It is unlikely, therefore, that she would ever
be a high earner and her choice of self-employment for the future allows her to
control her income somewhat. I say this particularly because she has indicated
that if she is feeling well and can market her services, her work could be
limitless.

[208]   It appears she will be able to earn a comparable
income to that she earned at Holt Renfrew if she decides to do so. In short, I
cannot say there is a substantial possibility the plaintiff’s injuries have
resulted in a future loss of income.

Loss of Housekeeping Capacity

[209]   The plaintiff continues to keep house and has
found ways to adapt which allow her to perform most of her tasks, although she
performs some tasks more slowly.

[210]   As I noted, she can no longer garden or mow the
lawn and has to rely on her family or hire a teenager to do her lawn. There was
no evidence of the cost of hiring someone to mow the lawn.

[211]   I find that the plaintiff has some need for
assistance with the outside maintenance of her garden and should receive some
compensation for this service.

[212]   I have included an amount of $1,000 a year for
five years to assist in outside care of the house and garden. However, I have
included it in the award for non-pecuniary damages. There will be no separate
award for loss of housekeeping capacity.

Cost of Future Care

[213]   An award for the cost of future care is to be
based on what is reasonably necessary on the medical evidence to preserve and
promote the plaintiff’s mental and physical health: Milina v. Bartsch
(1985), 49 B.C.L.R. (2d) 33 (S.C.). See also Williams v. Low, 2000 BCSC
345; Spehar et al. v. Beazley et al., 2002 BCSC 1104.

The test for determining the appropriate award under
this head of damages is an objective one based on medical evidence. For an
award for future care there must be a medical justification and the claim must
be reasonable: Milina, at 84.

[214]   In addition, future care costs must also be
likely to be incurred by the plaintiff. The award of damages is thus a matter
of prediction as to what will happen in future. If a plaintiff has not used a
particular item or service in the past, it may be inappropriate to include its
costs in a future care award: Izony v. Weidlich, 2006 BCSC 1315 at
para. 74.

[215]   Future care costs
must also be adjusted for future contingencies. Dickson J. said the following
about adjusting future care awards for contingencies in Gilbert v. Bottle,
2011 BCSC 1389 at para. 253:

[253]    The extent, if any, to
which a future care costs award should be adjusted for contingencies depends on
the specific care needs of the plaintiff. In some cases negative contingencies
are offset by positive contingencies and, therefore, a contingency adjustment
is not required:  see Spehar (Guardian ad litem of). In other cases,
however, the award is reduced based on the prospect of improvement in the
plaintiff’s condition or increased based on the prospect that additional care
will be required: see Morrison (Committee of). Each case falls to be
determined on its particular facts.

[216]   An assessment of damages for cost of future care
is not a precise accounting exercise: Krangle (Guardian ad litem of) v.
Brisco, 2002 SCC 9 at para. 21.

[217]   In this case, Dr. Hershler recommended a
substantial amount of treatment for the plaintiff in the future.

[218]   Although neither he nor Dr. Klein was exactly
certain what an osteopath does, at the indication from the plaintiff that she
benefits most from osteopathic treatment he suggested she undertake 24
treatments at a cost of $4,200.

[219]   Dr. Hershler also recommended 24 massage therapy
treatments and 12 personal training sessions to enable the plaintiff to safely
develop an exercise program to focus on core strength. The plaintiff calculates
the costs of all these programs at $7,209.60.

[220]   The plaintiff continues to have some symptoms
although she acknowledges that she goes for much longer periods of time without
any issues.

[221]   I would consider that she will continue to
improve and in fact, Dr. Hershler has said that treatment for her will still be
effective.

[222]   The plaintiff herself has said that she intends
to use any award of damages for cost of future care for the purpose of
obtaining treatment as she needs it.

[223]   I find that there is some medical justification
for continued treatment. However, I do not find the amount claimed to be
realistic.

[224]   The number of osteopathic treatments recommended
seems entirely unreasonable. When the plaintiff suffered from sacroiliac joint
pain before the accident, she only attended on the osteopath a few times and
received relief from her pain. There was no independent analysis by either
doctor of what benefit the plaintiff would receive from osteopathic treatment.
It appears that Dr. Hershler has simply asked the plaintiff what treatment she
would like and then recommended it in his report. Dr. Klein did not know what
an osteopath does. I will accept that the plaintiff received relief from this treatment
but I would permit a total of six osteopathic treatments for a cost of $1,300.

[225]   Allowing for the fact that the plaintiff has
only occasional symptoms at this point, 24 massage therapy treatments also seem
excessive. I would permit six such treatments at $75 per session for a cost of
$450.

[226]   I would allow a full 12 personal training
sessions since learning how to safely maintain her core strength is central to
the plaintiff’s future health. The cost of 12 sessions is $1,209.60.

[227]   The award for cost of future care is $2,959.60.

[228]   This award will be subject to deduction for the
plaintiff’s pre-existing condition.

Special Damages

[229]   Madam Justice Dardi
noted in X. v. Y., 2011 BCSC 944 at para. 281:

[281] It is well established that
an injured person is entitled to recover the reasonable out-of-pocket expenses
they incurred as a result of an accident. This is grounded in the fundamental
governing principle that an injured person is to be restored to the position he
or she would have been in had the accident not occurred: Milina at 78.

[230]   The defendants agree that they are responsible
for the costs of physiotherapy in December 2008 and two physiotherapy
treatments in July 2009, but oppose the balance of the claim.

[231]   I do not find the claim to be unreasonable and I
note the decreasing number of treatments over time. Certainly the prescription
claim is reasonable as is the plaintiff’s claim for $200 for the over the
counter drugs she purchased and used.

[232]   I will allow the claim for special damages as
stated since I found that the plaintiff’s symptoms only began to resolve one
year after the accident. This means that she would have required continuing but
occasional treatment thereafter.

[233]   The award claimed of $2,206.19 is granted, but
will be subject to deduction for the pre-existing condition.

Summary

[234]   The plaintiff is awarded the following damages:

[235]   Items 1, 3, and 4 (a total of $55,165.79) are
subject to a deduction of 15% to account for the effect of the plaintiff’s
pre-existing condition.

[236]   The reduced total for items 1, 3, and 4 is
$55,165.79 – 8,274.87 = $46,890.92.

[237]   The new total for all damages is $47,276.92.

[238]   Costs follow the event.

[239]   If the parties wish
to speak to costs they may arrange a time with the Registry.

“L.D. Russell J.”

_______________________________________

The Honourable Madam Justice Loryl D.
Russell