IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120417

Docket: M106385

Registry:
Vancouver

Between:

Marianne Pierrette
Cantin

Plaintiff

And

Grethe Marie
Petersen

Defendant

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
Ms. Cantin was injured in a motor vehicle accident that occurred on June
10, 2004. Liability for the accident is admitted. Quantum of damages and
causation are in dispute.

[2]            
The circumstances of the accident are straightforward. Ms. Cantin was
proceeding through an intersection when unexpectedly Ms. Petersen attempted to
turn left immediately in front of her. Ms. Cantin firmly applied her brakes
with both feet while she gripped the wheel with her hands and attempted to
swerve out of Ms. Petersen’s way. Ms. Cantin’s vehicle struck head on, the
passenger side of Ms. Petersen’s vehicle in a “T-Bone” collision. Her upper
body was thrust upward, and then forward and backward when the vehicles
collided. Ms. Cantin was wearing a shoulder and lap seatbelt that held upon
impact. There was substantial damage to the front end of Ms. Cantin’s vehicle
and to the passenger side of Ms. Petersen’s vehicle. Both vehicles were written
off. Ms. Cantin was travelling approximately 55 kph when she applied her
brakes.

[3]            
The issues raised in this action are as follows:

1.       What, if any, injuries
were caused or contributed to by the accident? In particular, was Ms. Cantin
suffering from pre-existing injuries at the time of the accident and were these
injuries aggravated by the accident?

2.       What amount of general
damages for pain and suffering is Ms. Cantin entitled to receive as
compensation for the injuries caused or contributed to by the collision?

3.       Did Ms. Cantin suffer
a loss of wages as a result of the injuries caused or contributed to by the
accident and, if so, what is the amount of the loss?

4.       Will Ms. Cantin suffer
a future loss of earning capacity as a result of injuries caused or contributed
to by the accident?

5.       Is Ms. Cantin entitled
to damages for future care costs as a result of injuries caused or contributed
to by the accident?

6.       What special damages
is Ms. Cantin entitled to receive for expenses incurred to date as a result of
injuries caused or contributed to by the accident?

7.       Has Ms. Petersen
proven on the balance of probabilities that Ms. Cantin has failed to mitigate?

[4]            
I intend to address each of these issues under separate headings which
will include the arguments of the parties, a summary of the applicable legal
principles, and the evidence supporting my conclusions. I have only summarized
the lengthy written submissions filed by both parties.

WHAT INJURIES WERE CAUSED OR CONTRIBUTED TO BY THE ACCIDENT?

[5]            
Ms. Cantin argues that as a result of the accident she suffered multiple
injuries that involve her upper and lower back, shoulders, neck, hips, legs,
and feet. These injuries have led to chronic pain syndrome or fibromyalgia,
sacroiliac joint dysfunction, severe and ongoing headaches, as well as
cognitive and psychological complications. Ms. Cantin argues it is unnecessary
to label the injuries she has suffered as a result of the accident; her
credible evidence and that of the medical experts and the collateral witnesses
amply establish these injuries from the day of the accident to the present. Ms.
Cantin argues there is no merit to the suggestion that she suffered from
chronic pain syndrome before the accident and that the pain she now experiences
is no worse than before the accident. Relying on Dr. Tekano’s expert testimony,
Ms. Cantin maintains her prior upper back and shoulder complaints were episodic
rather than constant. Further, the collateral witnesses demonstrate Ms.
Cantin’s functioning prior to the collision is inconsistent with a diagnosis of
chronic pain syndrome. In regard to causation, Ms. Cantin relies on Athey v.
Leonati, [1996] 3 S.C.R. 458. Ms. Cantin also argues that this is not a
case where she suffered from a debilitating condition prior to the accident
that would have led to her current physical and mental condition regardless of
this event: T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA
670.

[6]            
Ms. Petersen argues that while the accident may have caused minor soft
tissue injuries, there were no significant and lasting consequences flowing
from the collision and, further, Ms. Cantin fully recovered from those injuries
about six months to a year after the collision. While Ms. Cantin may be
currently disabled from chronic pain syndrome, Ms. Petersen argues this disabling
condition is not causally connected to the accident. Ms. Petersen maintains Ms.
Cantin had a pre-existing active chronic pain syndrome that explains all her
current symptoms. Moreover, Ms. Petersen argues Ms. Cantin is no more
functionally disabled now than she was before the accident. The historical
medical records show that she had a continuing and disabling back and shoulder
condition that required large amounts of pain medication and caused her to be
absent from work for lengthy periods of time. For five years after the accident,
Ms. Cantin was able to run and manage her own electrical contracting business.
In support of this position, Ms. Petersen relies upon Resurfice Corp. v.
Hanke, [2007] 1 S.C.R. 333; Athey; Iwanik v. Hayes, 2011 BCSC
812; and Blackwater v. Plint, [2005] 3 S.C.R. 3.

[7]            
Ms. Petersen argues that without any objective evidence of continuing
injury related to the accident, coupled with Ms. Cantin’s lack of credibility,
the court should not accept her claim to significant injury. In support of her
position, Ms. Petersen relies upon Price v. Kostryba (1982), 70 B.C.L.R.
397 (S.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); and Szymanski
v. Morin, 2010 BCSC 1. Ms. Petersen also argues the defence experts were
advocates for Ms. Cantin and strayed outside their expertise. As a consequence,
she argues that her experts’ opinions should be preferred: Yewdale v. ICBC
(1995), 3 B.C.L.R. (3d) 240 (S.C.).

[8]            
On my view of the evidence, Ms. Cantin suffered a number of injuries as
a result of the accident. She bruised her hands, thumbs, right elbow, left knee
and right shoulder. These injuries resolved quickly and did not give rise to
any disabling pain and suffering. Further, the consensus of medical opinion is
that Ms. Cantin suffered a soft tissue strain to her lower back and hips, which
caused referred pain in both her legs and feet. Although there are a few
references to low back pain in Ms. Cantin’s past medical history, the defence
expert in rheumatology, Dr. Shojania, agrees with Dr. Armstrong, the claimant’s
expert in chronic pain, that these were not significant. In addition, Dr.
Knazan, the defence expert in neurology, opines that Ms. Cantin’s pain in her
lower body (low back, hips, buttocks, legs and feet) is reasonably related to a
soft tissue injury that was caused by the collision.

[9]            
I am also satisfied that Ms. Cantin suffered a soft tissue strain of her
neck, shoulders and upper back as a result of the accident. Dr. Knazan opined
that the initial increase in pain experienced by Ms. Cantin in her neck,
following the collision, could reasonably be attributed to a soft tissue injury
to the posterior neck region. Dr. Koss, who was Ms. Cantin’s family doctor from
July 19, 2004 until December 29, 2004, opined that she suffered a grade II soft
tissue strain of the neck and low back due to the motor vehicle accident. Dr.
Koss found objective evidence of soft tissue injury in the form of neck spasms
during his examination of Ms. Cantin on July 19, 2004. As outlined in his
report dated January 17, 2005 at p. 2:

There was some spasm in the neck
muscles and this was confirmed by palpation of the neck muscles and with
movement there was a certain jerking and hesitation in her movements that
indicated spasm. There was spasm and tenderness of the shoulder muscles and
muscles around the neck and upper back. There was also spasm and tenderness of
the muscles between her shoulder blades. There was decreased range of motion in
the low back as well as lots of spasm in the low back muscles.

[10]        
Dr. Armstrong also concluded that while Ms. Cantin had a pre-existing
injury to the soft tissues of her neck, upper back and shoulders, the force of
the collision aggravated this injury making it worse than it was before the
accident. Although Ms. Petersen argues Dr. Armstrong’s opinion concerning the
impact of the gravitational forces on Ms. Cantin’s spine and hip joints during
the accident are outside of his expertise, it is apparent that all of the
experts came to the same conclusion about the cause of Ms. Cantin’s soft tissue
injuries to her upper and lower spinal areas. Moreover, I find it is well
within Dr. Armstrong’s expertise to incorporate simple concepts of physics into
his medical opinion as to the cause of Ms. Cantin’s injuries.

[11]        
Lastly, I find that secondary to Ms. Cantin’s neck injury she suffered
headaches. Dr. Armstrong opined that the severe headaches Ms. Cantin
experienced after the accident were associated with a tightening of the muscles
in her upper back and at the base of her neck, which in turn was caused by the
soft tissue injury to these regions. Although Dr. Knazan concluded that Ms.
Cantin’s headaches did not meet the standard for post-traumatic headache
classification (ICHD II) because these were not reported to her physicians
within seven days of the accident, Ms. Cantin’s medical history amply
demonstrates that headaches often accompanied a reoccurrence of her neck,
shoulder and upper back strain symptoms.

[12]        
While there is generally a consensus among the medical experts regarding
the initial diagnosis of Ms. Cantin’s injuries stemming from the accident,
there is a considerable division of opinion as to the causes of her current
complaints and symptoms. None of the physicians who examined Ms. Cantin and
provided expert medical opinions doubted the veracity of her complaints of
pain. The dispute among the experts lies in the cause of her current symptoms.
While Ms. Petersen argues Ms. Cantin’s physicians have become advocates for her
claim rather than independent experts, it is significant that none of the
experts had any doubt that Ms. Cantin was suffering real and substantial pain
symptoms. In addition, I cannot agree that Ms. Cantin’s physicians were
advocates for her claim. They were passionate about their work in the field of
chronic pain, and disagreed with the opinions of the defence experts concerning
the cause of Ms. Cantin’s continuing symptoms. In my view, this does not render
their opinions less reliable or less credible.

[13]        
The defence medical experts opined that the pain symptoms Ms. Cantin currently
exhibits cannot be objectively measured; they could find no organic causes for
her pain and mobility difficulties. Dr. Shojania was of the view that Ms.
Cantin had chronic pain syndrome in her upper back, shoulders and neck based on
her past medical history. This syndrome continued to be responsible for her
pain and suffering; however, the focus has now changed to the lower back and
legs. Dr. Knazan concluded that Ms. Cantin’s soft tissue injuries would have
resolved within six months of the accident. None of her symptoms could be
related to a neurological deficit or nerve compromise. Dr. Knazan offered a
suggestion that Ms. Cantin’s current pain symptoms may be psychological;
however, Dr. Solomons, who is a defence psychiatrist, concluded the accident
did not result in any clinically significant psychiatric or psychological
disturbance or problems. Nor did the accident cause any psychiatric disability
according to his opinion.

[14]        
The medical experts tendered by Ms. Cantin also have somewhat different
views about her current status. Dr. Koss believed that Ms. Cantin’s soft tissue
injuries were slowing improving in January 2005 and that she would likely make
a full recovery with an additional six months of therapy and appropriate
medications. He did not expect Ms. Cantin would have any long term symptoms
stemming from the collision and would be able to return to work after several
months. However, Dr. Dodds, Ms. Cantin’s family physician since 2007, opined
that she now presents with an extreme degree of chronic pain and de-conditioning
with mental and psychological complications. Her prognosis for any significant
recovery is poor. Dr. Dodds did not provide an opinion regarding the cause of
Ms. Cantin’s current chronic pain condition. Dr. Armstrong opined that Ms.
Cantin’s current symptoms in the upper back and neck remain an aggravation of
her pre-existing condition; that her low back injury continues to be
symptomatic largely because of a previously undiagnosed sacroiliac joint
dysfunction; and that her prognosis for any real improvement, even with proper
medical therapies and counselling, is very poor.

[15]        
Dr. Armstrong opined that but for the accident, Ms. Cantin would not be
suffering from chronic pain and its complications. He addresses causation and
Ms. Cantin’s current symptoms at p. 18 of his report:

In my opinion, the forces applied
in the MVA to her axial soft tissues and sacroiliac joints were likely to have
been sufficient to overload and injure these structures, (a) causing an acute
exacerbation of her previous axial myofascial disorder (with extension to the
low back) and (b) initiating sacroiliac joint dysfunction. The axial myofascial
disorder had reverted to chronic and continued to worsen owing primarily to the
perpetuating effects of the accompanying and unresolved injury to her
sacroiliac joints, the increased muscle tension resulting from ongoing stress
related to the MVA, her daily activities, and abnormal posturing and physical
deconditioning consequent to attempted pain avoidance.

[16]        
As described above, despite the absence of objective signs of injury,
Ms. Cantin continues to experience extreme pain in her upper and lower back
regions and debilitating headaches. None of the medical experts doubt the
veracity of her complaints. The collateral witnesses called by Ms. Cantin amply
demonstrate the devastating impact of the pain on her ability to manage all
aspects of daily living and the emotional and mental strain she experiences as
a result of this constant pain. Ms. Cantin’s family doctors, and in particular,
Dr. Dodds, have documented an ongoing litany of pain symptoms that have
persisted since the date of the accident. While Ms. Cantin may actually believe
her pain and functional impairment is worse than it really is, Dr. Armstrong
explains that this type of cognitive distortion or catastrophic thinking
behaviour is a symptom of chronic pain syndrome. As summarized on p. 13 of
his report:

A cognitive distortion is more
likely an unconscious complication of chronic pain. Patients think that way
because they have learned to do so out of a misguided sense of self
preservation. Their overall pain experience tends to be adversely affected by
cognitive distortions but this should not be misconstrued in a way that
suggests pain is somehow psychological in origin, that the patient is
malingering, or that she is not trying to get better.

[17]        
The real question is what, if any, of Ms. Cantin’s current symptoms are
causally connected to the accident. In my view, the defence experts’ views that
Ms. Cantin’s lower back and leg symptoms would have subsided within six months
and cannot be explained ignores the well documented medical evidence
surrounding chronic pain syndrome. This type of mechanical pain can exist long
after the underlying skeletal or muscular cause of the injury has healed. In this
particular case, Dr. Armstrong provides a cogent and logical explanation for
the continuing symptoms suffered by Ms. Cantin in her lower back and legs.
First, Ms. Cantin has developed chronic pain in these regions and, second, the
underlying sacroiliac joint mal-alignment exacerbates and continues to underlie
her low back complaints. This sacroiliac joint dysfunction is objectively
verifiable and Dr. Armstrong used the “FABER” maneuver to detect it in Ms.
Cantin.

[18]        
While Dr. Shojania and Dr. Knazan do not agree with Dr. Armstrong’s
diagnosis, they provided no reasons for their difference of opinion. Dr.
Shojania suggests the low back pain is just a new focus of the pre-existing
chronic pain in the neck and upper back, however, I find his analysis lacks merit.
It is unlikely a chronic condition is going to disappear; it is more likely
that the chronic pain condition was extended to the new area due to an acute
injury to that region rather than merely a change in the patient’s mental
focus. Moreover, Ms. Cantin’s medical records indicate that her loose joints
made her more susceptible to developing chronic pain. Dr. Armstrong’s diagnosis
of an SI joint dysfunction is also consistent with Dr. Condon’s diagnosis in
December 2006. Thus I find that Ms. Cantin’s current low back symptoms continue
to be causally connected to the low back injury she suffered during the
accident.

[19]        
The cause of Ms. Cantin’s current upper back, shoulder and neck pain
symptoms is more complicated to assess. All of the medical experts agree that
Ms. Cantin had pre-existing weakness and pain symptoms in her upper body
regions. Dr. Tekano’s expert report dated September 21, 2011, indicates that
Ms. Cantin had episodic myalgic pain in the upper back region for at least two
years prior to the accident and that immediately before the accident this
condition was causing her considerable pain and difficulties at work. The
prescription records also indicate that during the four years prior to the
accident, Ms. Cantin was taking considerable amounts of Tylenol 3 for pain as
well as muscle relaxants and anti-inflammatory medication. Dr. Shojania,
relying on a January 2004 consultation with Dr. Patterson, who is a
rheumatologist, opined that Ms. Cantin had chronic pain syndrome in her upper
back, neck and shoulders at that time. Dr. Armstrong also referred to Ms.
Cantin as having a history of chronic pain in these areas.

[20]        
Whether or not one regards Ms. Cantin’s pre-existing upper back and neck
symptoms as stemming from chronic pain syndrome, it is apparent that pain from
or re-injury to this part of her body was an ongoing and significant part of
Ms. Cantin’s medical health for many years prior to the accident. A tortfeasor,
however, is fully liable for any injury caused by her negligence. The fact that
the consequences of an aggravation of an existing condition are extreme does
not excuse Ms. Petersen from responsibility. As Major J. says in Athey,
when commenting on the “thin skull rule” at para. 34:

… [The rule] makes the
tortfeasor liable for the plaintiff’s injuries even if the injuries are
unexpectedly severe owing to a pre-existing condition. The tortfeasor must take
his or her victim as the tortfeasor finds the victim, and is therefore liable
even though the plaintiff’s losses are more dramatic than they would be for the
average person.

[21]        
The law does not sever liability as between causes; a propensity for
injury is only taken into account when assessing damages. Our Court of Appeal
recognized the distinction between assessing causation and quantifying damages
in T.W.N.A. As Smith J.A. says at paras. 22-24:

[22]      The defendant is “fully liable” because liability
cannot be apportioned between causes (Athey v. Leonati ¶19-23). Once
causation has been proven, the tortfeasor is fully liable for whatever damage
his or her wrongful conduct has caused the plaintiff.

[23]      The extent of the defendant’s liability is
determined in an assessment of damages. Smith v. Leech Brain & Co. Ltd.,
supra illustrates the different considerations applicable to causation
and compensation. Although Lord Parker C.J. held the employer fully liable for
the unexpectedly severe consequences of its breach of duty on the basis of the
thin skull rule, the employer was not liable to pay damages to the full extent
of the widow’s loss. A note at the end of the case, included by the reporter at
416, states:

 [His Lordship
considered the question of damages, observed that he must make a substantial
reduction from the figure taken for the dependency because of the fact that the
plaintiff’s husband might have developed cancer even if he had not suffered the
burn, and awarded the plaintiff £3,064 17s. 0d.]

[24]      This reduction of the award reflects a fundamental
principle governing the assessment of damages, which Major J. expressed in Athey
v. Leonati as follows:

[32]      … The essential purpose and most basic principle
of tort law is that the plaintiff must be placed in the position he or she
would have been in absent the defendant’s negligence (the “original position”).
However, the plaintiff is not to be placed in a position better than his or her
original one. It is therefore necessary not only to determine the plaintiff’s
position after the tort but also to assess what the “original position” would
have been. It is the difference between these positions, the “original
position” and the “injured position”, which is the plaintiff’s loss.

[22]        
There is no question that Ms. Cantin continues to suffer pain in her
upper back, shoulders and neck. None of the medical experts believed she was
fabricating her complaints or was malingering. There is no evidence of an
intervening event that would break the chain of causation between the
aggravation of Ms. Cantin’s chronic pain and the collision. The possibility
that Ms. Cantin would have experienced the same symptoms in any event is a
factor taken into account in determining damages; it is not relevant to
causation. Thus I find that Ms. Petersen is liable for the continuing injury to
Ms. Cantin’s upper back, shoulders and neck. A comparison of her condition
before and after the accident will determine the quantum of damages and the
extent of Ms. Petersen’s responsibility for Ms. Cantin’s present condition.

[23]        
Similarly, I find Ms. Petersen liable for Ms. Cantin’s continuing
headache pain as these are causally connected to her chronic pain syndrome in
her upper and lower body. The extent of Ms. Petersen’s responsibility will be
determined by a comparison of Ms. Cantin’s past experience with headaches and
her current experience.

WHAT AMOUNT OF NON-PECUNIARY DAMAGES IS MS. CANTIN ENTITLED TO RECEIVE?

[24]        
Ms. Cantin argues the devastating impact of her complex and disabling
condition merits a high award of general damages to not only compensate her for
the decline in her health but to replace, so far as practicable, her loss of function.
The range of damages suggested by the case law is in excess of $200,000
adjusted for inflation. In support of this range, Ms. Cantin relies upon Alden
v. Spooner, 2002 BCCA 592; Zawadzki v. Calimoso, 2011 BCSC 45; Delli
Santi v. PNE, 2000 BCSC 716; and Djukic v. Hahn, 2006 BCSC 154. In
regard to the factors to consider in assessing non-pecuniary damages, Ms.
Cantin relies upon Hartnett v. Leishchner, 2008 BCSC 1589. Ms. Cantin
maintains that prior to the accident her shoulder and neck symptoms were manageable
and she was able to competently perform the work of an electrician’s helper;
she could efficiently do all of her housework; and she could enjoy physical
activities with her children.

[25]        
Ms. Petersen argues that the moderate soft tissue injuries suffered by
Ms. Cantin warrant an award of non-pecuniary damages in the range of $20,000 to
$45,000. In support of this range, Ms. Petersen cites Hauer v. Clendenning,
2010 BCSC 366; Gendron v. Moffat, 2010 BCSC 1231; Anderson v. Dwyer,
2010 BCSC 526; Willing v. Ayles, 2009 BCSC 1035; and Hill v. Durham,
2009 BCSC 1480. Essentially, Ms. Petersen argues that Ms. Cantin is no worse
off now than she was immediately prior to the accident in terms of her
functional capacity and her pain experience.

[26]        
As described above, there was no measurable risk that Ms. Cantin would
have suffered from chronic pain in her lower back, hips and legs or that this
chronic pain would be prolonged and exacerbated by a sacroiliac joint
dysfunction absent the accident. Accordingly, damages should not be reduced
based on a possibility that an underlying condition would have caused such an
injury regardless of the accident. There is no medical evidence to support a
conclusion that Ms. Cantin’s joint hyper-mobility would have caused chronic pain
to develop absent a soft tissue injury in her lower body region of the
magnitude caused by the accident.

[27]        
On the other hand, a comparison of Ms. Cantin’s pre and post-accident
circumstances is necessary for an assessment of damages stemming from her ongoing
upper back and neck complaints. Ms. Cantin has a considerable history of
chronic pain in her upper back, shoulders and neck. In October 2001, Ms. Canton
re-injured her shoulder and her neck at work while moving heavy furniture. She
remained off work until in or about July 2002. When she returned to her job as
a furniture mover, it was only for a very short period. While Ms. Cantin could
not recall why she left this job, it is apparent that her upper back and
shoulder injury persisted despite a program of rehabilitation sponsored by the
Workers’ Compensation Board (“WCB”). The WCB advisor recommended a less
physically demanding job.

[28]        
In late 2002, Ms. Cantin began working as an electrician’s helper for
James Murphy who operated Copper Top Electric. Mr. Murphy testified that Ms.
Cantin was able to handle all of the physical labour associated with the work
of an electrician’s helper. His evidence was corroborated by Robert Baillie who
hired Copper Top Electric to carry out a number of residential jobs during 2003
and 2004. Mr. Murphy also testified that while he lived with Ms. Cantin in 2002
and 2003, he noted that she was an excellent and demanding housekeeper. She did
not appear to have any physical impediments that interfered with this work. In
addition, Mr. Murphy testified that Ms. Cantin was a physically active person
in her social life and, in particular, she was actively involved with raising
three of her seven children at this time. Dr. Tekano, who was Ms. Cantin’s
family doctor from October 2002 to June 2004, indicates in his report dated
September 21, 2011, that Ms. Cantin only saw him twice in 2002; once because
she wanted to become pregnant with her new husband and once due to a worsening
of her symptoms of anxiety and depression. He has no record of seeing Ms.
Cantin in 2003; however, Ms. Cantin saw a walk in clinic doctor in November
2003 for upper back, neck and bilateral shoulder pain. The prescription records
indicate Ms. Cantin took large amounts of Tylenol 3 in 2002 but very few in
2003.

[29]        
Ms. Cantin testified that she was physically capable of full time work
as an electrician’s helper in 2004 and had moved to Vernon shortly before the
accident to start a long term construction project with Mr. Murphy and Copper
Top Electric. Mr. Murphy corroborated Ms. Cantin’s evidence that she had no
difficulty performing all of the physical aspects of her job as an
electrician’s helper at this time. However, in early 2004, it is apparent that
Ms. Cantin had a reoccurrence of her upper back, shoulder and neck pain. On
January 14, 2004, she saw Dr. Tekano about “chronic neck pain”. As a result of
her complaints, Ms. Cantin was referred to Dr. Patterson, who is a
rheumatologist. Dr. Tekano also prescribed Tylenol 3 for her pain. Dr. Tekano
estimates that she was taking three tablets per day in January 2004, which is a
dramatic increase over her 2003 consumption of this medication. Ms. Cantin was
again prescribed more Tylenol 3 in February 2004 and on March 24, 2004, Ms.
Cantin reported to Dr. Tekano a hospital visit two days earlier for severe pain
in her neck, shoulders and upper limbs. At this time she was prescribed more
Tylenol 3, a muscle relaxant and an anti-inflammatory. On May 7, 2004, Ms.
Cantin saw Dr. Tekano for continuing pain in her neck and upper back. On this
occasion Ms. Cantin advised Dr. Tekano that she was only working part time and
that even this amount of work aggravated the pain in her upper back. She was
also obtaining chiropractic treatments for her neck and upper back pain. On
June 10, 2004, prior to the accident, Ms. Cantin saw Dr. Tekano for continuing
bilateral shoulder pain. She was prescribed more Tylenol 3 and an
anti-inflammatory medication.

[30]        
Thus I find that Ms. Cantin’s pre-accident condition was clearly
compromised by the presence of significant neck, shoulder and upper back pain
that had an adverse impact on her functional capacity. While Ms. Cantin may
have continued to work part time as an electrician’s helper immediately prior
to the collision, she was not able to work full time and even part time work
aggravated her upper back and shoulder pain.

[31]        
An assessment of Ms. Cantin’s post-accident condition involves a
consideration of her state of physical and mental health over several years.
Dr. Tekano and Dr. Koss saw Ms. Cantin in the months following the accident.
She also attended a number of walk in clinics in Vernon until she secured Dr.
Koss as a family physician. She consistently reported pain in her neck and
upper back; in her hips and her lower back. She was taking a muscle relaxant
and Tylenol 3 for pain. She attended several physiotherapy sessions during this
period. Dr. Koss noted acute muscle spasms in her low back, neck and shoulders
on July 19, 2004. In August 2004, Ms. Cantin reported to Dr. Koss that she
continued to have pain in these regions and now headaches had developed. Ms.
Cantin had attended the hospital for severe headache pain in early July 2004.
This acute phase of Ms. Cantin’s injuries was present without abatement until
the end of September 2004. At this time Ms. Cantin indicated to Dr. Koss that
she was feeling better and was going to try working part time.

[32]        
Despite a return to part time work, Ms. Cantin continued to have pain in
her mid-back, low back, hips, neck and feet. Work was troubling her injuries
and she wore a modified tool belt to reduce the weight she carried. She often
took rests to relieve her pain symptoms; however, she continued to work. From
March to the end of June 2005, Ms. Cantin went to a chiropractor for treatments
that she felt were helping her neck and back pain. She continued to see Dr.
Koss frequently and indicated that her symptoms were getting better. Ms. Cantin
consumed large quantities of Tylenol 3, muscle relaxants and anti-inflammatory
medication throughout this period. By June 2005, Ms. Cantin was working more
and appeared to be managing her pain symptoms.

[33]        
In 2005, Ms. Cantin established an electrical proprietorship called
North West Electric and hired Mr. Murphy as the certified electrician. She
managed this business and carried out some of the physical labour required of
an electrician’s helper. She also hired two employees who worked as electrical
apprentices with Mr. Murphy. In addition, Ms. Cantin established a new
construction cleaning business called Grime Scene and hired her two daughters
to do most of the physical labour. She supervised their work and did some of
the cleaning herself.

[34]        
In the late fall of 2005, Ms. Cantin returned to the Lower Mainland and
continued on with the electrical business she had established in Vernon under
North West Electric. Mr. Murphy testified that in early 2006 North West
Electric obtained a substantial contract from Epic Homes that was to continue
for six months with a possibility of additional contracts after this period.
While working on the Epic site, Mr. Murphy testified that Ms. Cantin’s legs
were so weak from pain that she could not walk between the homes in the
subdivision. They had to hire two employees to help complete the project.
Between December 2005 and October 2006, Ms. Cantin saw Dr. Condon who is a
specialist in musculoskeletal pain and injury management. Ms. Cantin testified
that her pain was not manageable during this period. It affected her everyday
life functions and she did less and less physical work over time. Mr. Murphy testified
that the Epic job was the last time Ms. Cantin did any physical labour for
North West Electric. Also during this period Dr. Condon investigated for cauda
equina syndrome (which was negative) and referred her to Dr. Yasin, who is a
physiatrist, for epidural steroid injections, which only provided temporary
relief from her pain symptoms. She was referred to the Thorson Health Centre
and received treatments from February to May 2007.

[35]        
In the spring of 2007, Ms. Cantin began seeing Dr. Dodds. Over four visits
in June and July 2007, she discussed multiple areas of ongoing pain in her
neck, upper, mid and low back, hips, knees as well as pain radiating down her
legs. It was also in 2007 that Ms. Cantin began taking substantial quantities
of anti-depressant medication for the emotional symptoms that accompanied her
pain. Ms. Cantin testified that over time she became more and more anxious and
depressed; she was irritable and impatient with her children. As Dr. Dodds says
in his report dated May 13, 2011, chronic pain syndrome presents with symptoms
that are identical to major depression. These include decreased mood,
concentration, energy, motivation, and loss of restful sleep. To help Ms.
Cantin deal with these symptoms he prescribed Amitriptyline, which is an
anti-depressant commonly taken for sleep disturbance.

[36]        
Over the almost four years Ms. Cantin has been seeing Dr. Dodds on a
regular basis, her pain symptoms have sometimes been improving and at other
times have worsened. Increased dosages of medication appeared to work but
ultimately were not successful in treating her physical or mental symptoms. Due
to the development of stomach ulcers, Ms. Cantin had to stop using
anti-inflammatory medication. While light exercise was thought to be helping
Ms. Cantin, she left the Karp Fitness program after about three months because
the exercises were too strenuous for her and aggravated her pain symptoms. In
2008 and 2009, Ms. Cantin continued with chiropractic treatments but she has
not taken any form of passive therapy since May 2009.

[37]        
In the spring of 2009, Ms. Cantin tried spinal decompression therapy and
found that it was helping to improve her pain symptoms and her functional
mobility. Again, however, her symptoms were variable and in July 2009, Dr.
Dodds found she had multiple trigger points of pain and a significant decrease
in the range of motion in her hips. Dr. Dodds opined that her symptoms and
presentation were typical of severe chronic pain syndrome and fibromyalgia. At
this time Ms. Cantin’s physical and mental symptoms were so severe that she
could no longer care for her two teen aged children. She moved into her
sister’s residence for three months and Mr. Murphy cared for her 15 year old
son Jake while Jake’s twin sister Jesse moved to Ontario to live with Ms.
Cantin’s older daughter.

[38]        
For the next several months Ms. Cantin discontinued her medications out
of frustration and due to an inability to afford their cost. In June 2010, Dr.
Dodds reports that Ms. Cantin was severely affected by chronic pain and
fibromyalgia; she had poor sleep, posture, gait, and energy; and she had
increased agitation, anxiety, pain and irritability. She continued to have
severe headaches with migraine symptoms that resulted in vomiting and was
developing symptoms of agoraphobia. Lastly, in his May 13, 2011 report, Dr.
Dodds summarizes the current status of Ms. Cantin’s condition and its impact on
her life at p. 7:

This patient is suffering from an extreme degree of chronic
pain and deconditioning, and their attendant mental and physical/psychiatric
complications. The combination of these factors has caused a pervasive and
extremely severe impairment of her quality of life.

The prognosis is poor. Although
there may be some mild to mild/moderate improvement in the above, I expect that
she will be significantly impaired indefinitely.

[39]        
Dr. Solomons found that Ms. Cantin did not qualify for a diagnosis of
psychiatric disability, however he did not address whether her symptoms could
be a symptom of chronic pain syndrome. In this regard, Dr. Armstrong says at p. 18
of his report dated November 27, 2011:

Chronic pain with emergence of
its complications including emotional distress, cognitive slowing and
distortion, and sleep disorder with fatigue. An increased sensitivity to pain
can occur in susceptible individuals who are exposed to persistent pain and
possibly results from functional and structural neuroplastic changes that alter
the way pain signals are initiated and processed in the nervous system.

[40]        
North West Electric continued operating until 2009. At that time it had
substantial debts and little ongoing income with which to satisfy them. In 2009,
Ms. Cantin reported a net income of about $15,000 from the business. While the
business was profitable in the years 2006 to 2008, I accept Ms. Cantin’s
evidence, which is corroborated by Mr. Murphy’s testimony, as well as Ms.
Cantin’s sons Jake Kinniberg and Willard Hachey, that she was physically
incapable of working during these years. Although she managed North West Electric
up until its closure, Ms. Cantin failed to properly administer the business due
to her functional limitations, pain symptoms and emotional difficulties. While
Ms. Petersen argues Ms. Cantin’s testimony is unreliable due to her inability
to clearly recall the details of past events and her tendency to recall past
events inconsistently when it favours her case, I find her description of her
pain and functional disabilities is consistent with the expert medical evidence
and the testimony of collateral witnesses. Further, I do not agree that an
adverse inference should be drawn as a result of Ms. Cantin’s failure to call
two employees of North West Electric to give evidence about her work after the
accident. In addition to Mr. Murphy, Ms. Cantin called Mr. Daunais and Mr.
Baillie, who are independent witnesses, to describe her work as an
electrician’s helper after the accident. This is not a case where there was a
paucity of evidence concerning Ms. Cantin’s ability to work after June 2004.

[41]        
I accept the consistent expert medical opinions that Ms. Cantin is
presently not capable of doing any job in a competitive labour market. She is
limited physically to very short walks and light exercise; she is unable to
carry out household chores without pain; she is unable to drive except very
short distances; and she has no social or family life due to the emotional
complications arising out of her chronic pain syndrome. She has a compromised
gait and posture due to her ongoing and long standing pain symptoms. Ms. Berry,
an occupational therapist, also opined that Ms. Cantin was not competitively
employable due to chronic pain and a lack of functional mobility. Her
description of Ms. Cantin’s posture and gait is particularly compelling. Ms.
Berry notes at p. 25 of her report:

Ms. Cantin was observed to walk
to her mailbox located at the end of her driveway, estimated 35 to 40 feet. She
walked with her trunk forward flexed (bent over) and externally rotating her
hip (turned out). She walked with a limp and antalgic gait. She was able to
forward flex further to get her mail out of the mailbox, which was located on a
short step from the ground. Following this task, Ms. Cantin “fell” into the
counter with audible groan complaining of the coldness. It appeared that the
task required a lot of energy and effort for her to do.

[42]        
When I compare the pre-accident and post-accident picture of Ms. Cantin
in terms of her physical and mental status and her functional capacity, I find
there has been a significant deterioration since the collision. However, given
the entrenched nature of Ms. Cantin’s upper back, neck and shoulder pain
symptoms, I find it is likely that Ms. Cantin’s physical condition would have
deteriorated to a certain degree regardless of the accident, particularly if
she continued to perform the heavy physical tasks of an electrician’s helper.
It is also likely that along with chronic pain in her upper body Ms. Cantin
would have suffered headaches, emotional stress and sleeplessness because these
are typical complications of this syndrome. Nevertheless, the accident worsened
her upper back and neck symptoms, broadened her chronic pain to the lower back,
and caused a dysfunction in her sacroiliac joints. The resulting widespread
chronic pain also likely exacerbated Ms. Cantin’s poor emotional response to
her condition.

[43]        
The overall award for non-pecuniary damages should therefore be reduced
to reflect these likely consequences absent the accident.

[44]        
The purpose of an award for non-pecuniary damages is to compensate the
claimant for pain and suffering, loss of enjoyment of life, and loss of
amenities. Each case must be decided on its own facts; however, similar cases
also provide an overall guide to the range of damages. The case authorities
cited by the parties indicate that the following factors are normally
considered when assessing the quantum of non-pecuniary damages: (1) the
age of the claimant; (2) the nature of the injury; (3) the severity
and duration of pain and other symptoms;(4) emotional suffering; (5) loss
of or impairment of life; (6) impairment of family, marital and social
relationships; (7) impairment of physical and mental abilities; (8) loss
of lifestyle; and (9) the claimant’s stoicism: See Hartnett at
para. 81.

[45]        
The soft tissue injuries occasioned by the accident have led to the
development of serious, chronic pain in Ms. Cantin’s upper and lower spine,
hips, and legs. Despite many types of therapy, she has continued to experience
serious pain and a drastic reduction in her functional mobility for almost
eight years since the accident. Ms. Cantin has lost the ability to work in a
competitive labour market; she has no social life outside her home and her
relationship with family members has deteriorated substantially as a result of
her constant pain and mental distress. She is unable to achieve restful sleep;
has suffered a cognitive decline in memory; and has become a social recluse.
Her prognosis for any level of recovery is extremely guarded.

[46]        
While I believe the quantum of damages suggested by Ms. Cantin, adjusted
for inflation, is more reflective of her loss than the range posited by Ms.
Petersen, a lower amount is appropriate given the risks inherent in her
pre-existing condition. Therefore, I award $150,000 in general damages for pain
and suffering.

DID MS. CANTIN SUFFER A LOSS OF PAST WAGES AS A RESULT OF THE ACCIDENT?

[47]        
Ms. Cantin argues that at the time of the accident she was actively
engaged in employment as an electrician’s helper and working towards obtaining
her certification as a journeyman electrician. She was physically able to
handle this work and was good at it. She had begun classes to obtain her high
school graduation certificate to qualify for the BCIT training program for
electricians and had secured Mr. Murphy’s agreement to take her on full time as
an apprentice electrician.

[48]        
Ms. Cantin argues that her past wage loss is represented by $30,000 for
the first five years as an apprentice electrician earning $15 per hour and
thereafter earning $40,000 as a journeyman electrician. She argues that a
reduction of the loss to $20,000 for the first year reflects a slow start to
the Vernon work. In total, Ms. Cantin claims $225,000 for past wage loss.

[49]        
Ms. Cantin argues it is not appropriate to measure her past wage loss
based on what she earned in the years prior to the accident. During this period
Ms. Cantin was out of the workforce raising her children and working for free
or being underpaid in family businesses. At the time of the accident her
employment situation had changed; she was no longer taking care of young
children and had secured full time work as an electrician’s assistant with a
realistic plan to obtain her journeyman’s certification. While there may be
negative contingencies due to possible absences from the workforce for injury
or illness, these are neutral factors when balanced against the positive
contingency that Ms. Cantin could have developed a successful electrical
business and earned more than simply her wages. In this regard, Ms. Cantin
argues that as a result of the accident her mental acuity and cognitive
abilities declined thereby precluding her from running a profitable business.

[50]        
Ms. Petersen argues that Ms. Cantin has failed to prove she sustained
any loss of earnings due to the accident. Ms. Petersen maintains that Ms.
Cantin was able to earn far more after the accident than she did before the
collision. Her electrical and cleaning businesses produced income up until
2009, which is long after she recovered from any accident-related injuries.
Further, if there was a loss of income in the past, it is due to her
pre-existing injuries.

[51]        
To project a person’s probable earnings over a past period, it is
appropriate to look to the past earnings as well as the average earnings in
their particular occupation. It is also important to consider any reasonable
explanation for the absence of income before the accident as well as any
impediment to earning capacity that pre-dated the accident.

[52]        
Where the person has not yet established a career in a particular
occupation or is operating her own business and her wages are not distinguished
from revenues generally, it may be more appropriate to refer to the average
earnings of persons with similar education, age and sex. Relevant to this case,
the average earnings of a full time female B.C. worker without a degree,
diploma or certificate is $33,100 in 2012 dollars. The average full time
earnings of a female B.C. electrician’s helper for all ages is $30,900 in 2012
dollars. As these figures are relatively equal, and Ms. Cantin appeared to have
committed herself to the occupation of electrician’s helper, the latter figures
should be used to make comparisons for past wage loss.

[53]        
Ms. Cantin’s earnings in 2000 were reported as $4,000; her earnings in
2001 while she was employed as a furniture mover were reported as $15,165,
including workers’ compensation benefits. In 2002, Ms. Cantin reported earnings
of $7,827; however, the vast majority of these earnings reflect medical
employment insurance and workers’ compensation benefits. I accept Ms. Cantin’s
evidence that her absence from the labour market in the early years was
primarily due to the fact that she was fully occupied with raising children. In
addition, Ms. Cantin worked at a family store for a period during her second
marriage and was not paid for her labour.

[54]        
In 2003 and 2004, Ms. Cantin reported no earnings to Canada Revenue Agency
on her income tax returns. Mr. Murphy testified that he paid Ms. Cantin $15 per
hour for her work on his electrical jobs; however, there are no payroll records
in evidence to confirm how much Ms. Cantin earned in 2004. Ms. Cantin could not
recall what her income was in 2004. It is apparent from Dr. Tekano’s report
that in January 2004 Ms. Cantin advised him that she was working as an
electrician’s helper in late 2003 and early 2004. Mr. Baillie also confirmed
that Ms. Cantin was working for Mr. Murphy during this period. Thus despite a
lack of documentary evidence of her employment, I accept that Ms. Cantin began
working as an electrician’s helper in 2003 and that she continued to work in
this capacity up until the date of the accident.

[55]        
However, it is quite apparent that Ms. Cantin was not working full time
for the entire year in 2003 and, further, that she missed work in early 2004
due to her back and neck pain. Dr. Tekano’s report indicates that as late as
May 2004 Ms. Cantin was only working part time.

[56]        
After the accident, Ms. Cantin did not return to part time work until
the end of September 2004. Thereafter she worked part time but there are no
payroll records in evidence to establish Ms. Cantin’s actual earnings for this
period. For 2005, the only evidence of Ms. Cantin’ s earnings is that which is
contained in her income tax returns (2005 to 2010). Ms. Cantin disavows the
accuracy of these unfiled tax returns but failed to provide an explanation for
this assertion. Mr. Choquette, who is Ms. Cantin’s accountant, testified that
he prepared the income tax returns based on information provided to him by Ms.
Cantin and Mr. Murphy. He employed standard accounting principles and was never
advised by either Mr. Murphy or Ms. Cantin that his calculations were in error.
In my view, the income tax returns represent the best evidence of Ms. Cantin’s
earnings during the period she operated North West Electric. In 2005, Ms.
Cantin’s reported income was $25,402. In 2006, she reported $61,293. In 2007,
her reported income was $56,897 and in 2008 her reported income was $72,866. In
2009, the last year in which North West Electric was operational, Ms. Cantin
reported income of $14,434. In 2010, her income was nil.

[57]        
I find that Ms. Cantin’s projected earnings for June to December 2004
are appropriately based on an expectation that she would have continued to work
part time as an electrician’s helper for the balance of the year but for the
collision. This projection reflects the fact that for several months prior to
the accident she was only working part time due to her pre-existing upper back,
neck and shoulder injury. The fact that as late as May 2004, part time work was
aggravating her condition is a clear indication that she would not have
returned to full time employment for the balance of the year regardless of the
accident. Based on one-half of the average earnings of full time female
electrician’s helpers, I calculate Ms. Cantin’s wage loss in 2004 to be $9,012
in 2012 dollars.  I deduct from this amount the part time wages Ms. Cantin
presumably earned in October, November and December 2004 ($3,873) for a total
of $5,139.

[58]        
Ms. Cantin argues that her income for the succeeding years should be
calculated in addition to her actual earnings because but for the accident she
would have earned wages for her labour as well as business profits. For the year
2005, it is unclear when North West Electric started operations. While Ms.
Cantin may have worked part of the year for Mr. Murphy’s business, Copper Top
Electric, she did not report this income separately from her business profits.
Given North West Electric was a fledgling business in 2005 and that, according
to Mr. Murphy’s evidence, work was slow for electricians during this period, I
find it is appropriate to calculate Ms. Canton’s wage loss as the average
annual earnings for a female B.C. electrician’s helper less the business
profits she declared in 2005. Based on these statistics, her wage loss for 2005
would be $5,498 in 2012 dollars. Further, this amount must be reduced to
reflect the probability that for some portion of the year Ms. Cantin would have
been unable to work full time due to her pre-existing upper back, neck and shoulder
injury. Thus I award $4,000 in 2012 dollars for past wage loss in 2005.

[59]        
In the year 2006, North West Electric was fully engaged in electrical
contract work on the Epic home site. Ms. Cantin worked part of the year but
found that she could no longer do any physical labour as an electrician’s
helper. Despite the fact that she was no longer doing physical labour, the net
business profits rose that year to $61,293. While it is appropriate to project
an increase in earnings over this net profit figure based on a projection that
Ms. Cantin would have also contributed her labour to the business, I find that
it is unrealistic to assume that Ms. Cantin would be capable of working full
time while she also managed the business. Ms. Cantin had never owned her own business
in the past and had a pre-existing upper back, neck and shoulder injury that
was chronic in nature and appeared to flare up with overuse. Based on these
contingency factors, I find that Ms. Cantin’s business profits would have been
enhanced by one-third of the average annual full time wages for a female
electrician’s helper, which is $10,300 in 2012 dollars. I thus award $10,300
for wage loss in 2006.

[60]        
Similarly, Ms. Cantin’s wage loss for 2007 and 2008 is appropriately
based on one-third of the average earnings of a full time female electrician’s
helper in addition to her business profits. Thus I award $10,300 for the years
2007 and 2008 in 2012 dollars.

[61]        
The past wage loss for 2009 is somewhat more complicated. In this year
North West Electric shut down for a variety of reasons. Ms. Cantin was not
managing the business efficiently; she hired too many employees and was not
paying her suppliers. The business owed substantial amounts in income tax, GST
and sales tax. While Mr. Murphy and Ms. Cantin testified that the business went
downhill because her injuries precluded her from spending the time necessary to
properly manage its affairs, it is fair to factor in the real and substantial
possibility that Ms. Cantin’s lack of experience in the workforce and in
operating an electrical contracting business would have played a role in North
West Electric’s decline regardless of her injuries. In addition, the
probability that her pre-existing shoulder, neck and upper back injuries would
also have contributed to the downfall of the business despite the accident is
also a proper contingency to consider with regard to past wage loss. Ms.
Cantin’s submission on past wage loss for this year appears to reflect these
negative contingency factors as she proposed a loss equal to the average
earnings of a female electrician’s helper without any allowance for business
profits. Accordingly, I find that in 2009 Ms. Cantin would likely have earned
about one-half of the average profits North West Electric earned in past years
and one-third of the average wages of a female electrician’s helper but for the
accident. Half the past average profits of North West Electric is approximately
$27,500. Subtracting the actual profits for 2009 in the amount of $14,434, the
net loss is $13,066. In addition, Ms. Cantin is entitled to one-third of the
average earnings for an electrician’s helper ($10,300), which results in a
total past earnings loss for 2009 of $23,366 in 2012 dollars.

[62]        
For the years 2010 and 2011, Ms. Cantin claims an increase in her wage
loss to $40,000 per year because by this time she would have obtained her
certification as a journeyman electrician. In my view, it is not a real and
substantial possibility that Ms. Cantin would have completed the requirements
for certification as a journeyman electrician by 2010 regardless of the
accident. To become a certified journeyman electrician an apprentice must work
full time hours for four years (1500 hours per year) and complete all of the
required courses at BCIT. In view of Ms. Cantin’s pre-existing shoulder, upper
back and neck injuries, I find it is very unlikely that she could work full
time as an electrician’s apprentice. Moreover, Mr. Murphy testified that it
took him nine years to become a certified electrician. In addition, the hours
she could devote to this work would be limited due to her obligation to manage
North West Electric’s business had it continued to operate. Lastly, Ms. Cantin
needed to complete her Grade 12 equivalency to register in the educational
component of the program at BCIT. The time required for her educational
upgrading would likely decrease the hours she could work as an apprentice. For
these reasons, I find the past wage loss for 2010 and 2011 must be based on one-half
of the average earnings of an electrician’s helper, which is $15,450 in 2012
dollars for each of these years. The reduction in the earnings reflects the
probability that Ms. Cantin’s pre-existing injuries would only permit her to
work part time in this occupation. The past wage loss for January 1, 2012 to
the date of trial is calculated on the same basis at $3,862.

[63]        
In summary, I award a total past wage loss of $98,167.

WILL MS. CANTIN SUFFER A LOSS OF FUTURE EARNING CAPACITY AS A RESULT OF THE
ACCIDENT?

[64]        
Ms. Cantin argues the capital asset approach should be followed to
assess her future loss of earning capacity because she entered the labour
market later in life due to her large family and in the past worked for little
or no wages in a family business. Further, Ms. Cantin argues she is completely
disabled from any type of employment due to her accident-related injuries. But
for the collision, Ms. Cantin says she would have continued as an electrician’s
helper; become an apprentice with Mr. Murphy, and then become a journeyman
electrician. This plan was a real and substantial possibility because of her
enterprising nature and her relationship with Mr. Murphy which would have
facilitated her apprenticeship. Further, Ms. Cantin had already begun to
upgrade her education in preparation for entry into the electricians’ program
at BCIT prior to the accident. In support of her claim, Ms. Cantin relies upon Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Rosvold v. Dunlop,
2001 BCCA 1; Hartnett; and Shapiro v. Dailey, 2012 BCCA 128.

[65]        
Ms. Cantin argues that in current dollars, her annual loss of income,
$30,000 over the next 14 years until age 65, results in an award of $182,670.
If the loss is calculated at $40,000 per year the current value of the future
loss of income is $243,560.

[66]        
Ms. Petersen argues it is not a reasonable and substantial possibility
that Ms. Cantin would have become a journeyman electrician but for the
accident. Her lack of education, nominal work history in the past, and her
pre-existing injuries render it unlikely that Ms. Cantin would have succeeded
in becoming a journeyman electrician. Further, the court must apply a relative
weight principle to the possibility of the loss of actual earnings in the
future. Ms. Petersen argues that the mathematical approach to the calculation of
future loss of earning capacity is inappropriate in this case because Ms.
Cantin is able to return to some form of employment or would have been disabled
from working as an electrician due to her pre-accident injuries in any event.

[67]        
In support of her argument that no loss of future earning capacity is
proven, Ms. Petersen relies upon Steward v. Berezan, 2007 BCCA 150; Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.); Ilic v. Fleetwood
(1993), 87 B.C.L.R. (2d) 273 (C.A.); and Lewis v. Todd, [1980] 2 S.C.R.
694.

[68]        
In regard to future loss of earning capacity, Dr. Dodds opines that the
combination of Ms. Cantin’s chronic pain, de-conditioning and the psychological
complications flowing from chronic pain have caused “a pervasive and extremely
severe impairment of her quality of life.” Dr. Dodds’ opinion is that the
prognosis for any level of recovery is poor; she will likely remain
significantly impaired indefinitely. Dr. Armstrong gives a very guarded
prognosis for Ms. Cantin’s recovery. It is his opinion that there is only a
slim chance of a modest level of recovery due to the nature of chronic pain
syndrome and the lengthy period in which Ms. Cantin has remained symptomatic.
He opines that it is a virtual certainty that Ms. Cantin will continue to
experience headaches, chronic pain and diminished physical capacity for the
foreseeable future absent successful therapy. Successful therapy, on the other
hand, is unlikely to produce significant improvement.

[69]        
Dr. Shojania opines that while it is difficult to predict possible
recovery scenarios, it is likely Ms. Cantin will recover to her pre-accident
state with proper exercise, strengthening exercises and learned coping
strategies. However, he also recognizes that Ms. Cantin’s depressed mood,
bizarre behaviour during interviews, and her fear of exercise are barriers to
recovery. In addition, he suggests the length of time since the accident is a
detriment to her recovery. While Dr. Knazan did not conclude Ms. Cantin’s
current symptoms were related to the accident, he opined that withdrawal from
opiate medications would likely improve her headaches, but this would be very
difficult to accomplish given her dependence on these types of pain medication
since 2002.

[70]        
Based on the evidence before me, I find that on a balance of
probabilities Ms. Cantin is currently and, for the foreseeable future, totally
disabled from any type of employment in a competitive labour market.

[71]        
Loss of future earning capacity as a head of damages seeks to compensate
the injured party for the loss of a capital asset rather than to replace actual
lost earnings pursuant to a precise mathematical formula. The court determines
future loss of earning capacity based on the reasonable and substantial
possibilities and by assessing the likelihood that they would have occurred
based on the evidence: Steward at para. 17.

[72]        
The courts have often remarked on the difficulty associated with valuing
loss of earning capacity. As Neilson J.A. recently noted in Shapiro at
para. 40:

The inherent difficulties of assessing awards for
hypothetical future events are well-known. The exercise has been variously
described as “gazing into a crystal ball” (Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452 at 469) and “an
estimate based on prophesies” (Morris v. Rose Estate (1996), 23 B.C.L.R.
(3d) 256 at 263). In Morris, as Mr. Justice Donald observed at 264:

… The defendant’s arguments unduly focus on the mechanics
of the judge’s calculation and they fail to recognize that in the end it is the
judge’s sense of what is fair compensation that matters. There is much more art
than science in the process. Accordingly, on appeal any missteps that may have
occurred in arriving at an award are unimportant if the figure falls within the
range of reasonable compensation.

[73]        
In addition to the four factors described in Brown, Russell J.
summarizes other relevant considerations in Hartnett at para. 97:

A court must consider all
evidence that is reasonable in the circumstances in assessing such an award.
Reference to projections, calculations and formulae 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.

[74]        
Ms. Cantin was born in Quebec in 1960 and she lived most of her life in
Ontario where she raised seven children who are now 34, 32, 31, 27, 25, and 18
year old twins. Ms. Cantin did not finish high school and was sporadically
employed on a cash basis until she came to British Columbia in 2000. In that
year Ms. Cantin went to work for her sister’s husband, Tony DiSalvatory. He
operated a trucking business that picked up furniture and other items for the
Salvation Army. Ms. Cantin was employed as a swamper until in or about October
2001 when she went off work due to a muscle strain in her upper back, neck and
shoulder. Ms. Cantin testified that she had a long standing problem with her
shoulders and moving heavy furniture aggravated this pre-existing condition.
She returned to work very briefly after her workers’ compensation benefits were
terminated but did not continue in this occupation.

[75]        
When Ms. Cantin met Mr. Murphy in 2002, she became interested in working
as an electrician’s helper. As described earlier, Ms. Cantin worked for Mr.
Murphy in this capacity in 2003 and 2004 prior to the accident. Mr. Murphy is a
certified journeyman electrician and he agreed to permit Ms. Cantin to register
as an apprentice under his supervision. Mr. Murphy testified that the work of a
journeyman electrician is challenging for most people. While it does not
require skills in mathematics on the job, the apprenticeship program at BCIT
requires students to complete a number of math courses. Mr. Murphy has
supervised many apprentices in his 30 year career as an electrician; however,
none of them has ever completed the program to his knowledge. In addition to
the four years of full time on the job training (1500 hours per year), the BCIT
program involves ten weeks of coursework each year with classes from Monday to
Friday, eight hours a day. At the conclusion of the four year program,
candidates must pass a comprehensive provincial examination to become
certified. As described earlier, Mr. Murphy took nine years to become
certified.

[76]        
To qualify for the apprenticeship program offered by BCIT, Ms. Cantin
had to return to school to obtain her Grade 12 equivalency. In January 2004,
she registered with Invergarry Adult Learning Centre and began coursework in
Math 10A and English 10. She also required Math 11, English 11, and English 12.
Ms. Cantin did not complete her courses and dropped out of the program when she
and Mr. Murphy relocated to Vernon to work on a large subdivision construction
project in early May 2004. They moved into a rental home with three of Ms.
Cantin’s children. There is no evidence that Ms. Cantin attempted to register
in an adult learning centre in Vernon to obtain her high school diploma before
or after the accident.

[77]        
When the accident occurred in June 2004, Ms. Cantin was almost 44 years
old. Her older children had left home and were living independently. Still at
home were the twins (ten years old) and Noella who was fifteen years old. The
family was living with Mr. Murphy in Vernon in a strictly platonic friendship.

[78]        
Based on the evidence before me, I find it is a reasonable and
substantial possibility that Ms. Cantin would have continued to work as an
electrician’s helper had she not been injured in the accident. There is ample
evidence before the court that she was good at this work and carried out her
assigned tasks capably and efficiently. Mr. Murphy was also committed to
employing Ms. Cantin despite her inexperience. However, there is also cogent
evidence that Ms. Cantin’s pre-existing injury to her shoulders, neck and upper
back interfered with her ability to work full time in this occupation and
required her to take copious quantities of Tylenol 3 to manage the pain she was
experiencing. Further, had Ms. Cantin continued to work as an electrician’s
helper over the long term, there is a substantial possibility that the pain
medication would have caused “rebound headaches” absent the injuries caused by
the accident. As Dr. Knazan notes in his report at p. 9:

I am of the opinion that Ms.
Cantin’s ongoing headaches are primarily a manifestation of a generalized
chronic pain syndrome and a diagnosis of medication overuse headaches / MOH
(rebound headaches). Medication overuse headaches represent a well-defined
clinical entity in which there is a paradoxical occurrence of headaches with the
intake of large amounts of analgesic medication.

[79]        
This is not to say that Ms. Cantin would likely have been forced out of
this occupation entirely due to her pre-existing injuries. There is no evidence
that Ms. Cantin had developed any of the disabling psychological complications
of chronic pain syndrome prior to the accident. The historical medical records
do not support a conclusion that her infrequent periods of mood disorder and
depression were anything other than episodic. The prescription records clearly
indicate that it was not until in or about 2007 that Ms. Cantin required large
doses of medication for her psychological symptoms. In addition, there is no
evidence that the chronic pain in her upper body created functional mobility
limitations that precluded her from working as an electrician’s helper.

[80]        
I am not satisfied, however, that it is a reasonable and substantial
possibility that Ms. Cantin would have succeeded in obtaining her certification
as a journeyman electrician but for the accident. Ms. Cantin was 44 years old
when she took the first step towards qualifying for the BCIT apprenticeship
program. There is no evidence of how well she was doing in her math and English
courses in early 2004. Nor is there any evidence of her proficiency in math or
English generally. Ms. Cantin had not taken any type of educational program
since leaving high school in or about 1976. In addition, there is no evidence
that Ms. Cantin could have managed the coursework in the BCIT program. Had she
completed the coursework, her inability to work full time as an apprentice
would have delayed completion of the 6000 hours of on the job training for
several years. If Ms. Cantin took nine years to accumulate this number of work
hours, similar to Mr. Murphy, she would likely be at least 53 years old before
she would be qualified to write the provincial examination. It is also
important to consider that the statistical data for female journeyman
electricians suggests there are few women employed in this occupation in B.C.
and/or in Canada.

[81]        
For these reasons, I find it is mere speculation to conclude it was
reasonably possible for Ms. Cantin to have achieved the status of journeyman
electrician absent the injuries caused by the accident.

[82]        
Assuming Ms. Cantin retired at age 65, the actuarial evidence provided
by Mr. Benning, who is an economist qualified as an expert in this field,
indicates that the economic multiplier over this 14 year period is $6,089 for
each $1,000 loss of income while the actuarial multiplier is $11,238. The
actuarial multiplier takes into account a contingency for premature death and
nothing more. The economic multiplier takes into account premature death and
contingencies for female non-participation in the labour force, unemployment,
part time work, and part year work. Mr. Benning opines that the economic
multiplier is appropriate where the loss of income is based on full time, full
year participation in the workforce. Where the court applies contingency
factors and concludes the loss is based on less than full time work, it is
appropriate to use the actuarial multiplier.

[83]        
The average earnings of a female electrician’s helper in 2012 dollars is
$30,900 based on full time, full year work. In my view, it is appropriate to
discount this figure by half to reflect the negative contingencies described
above, including the real and substantial possibility that Ms. Cantin’s
pre-existing injuries would have limited her ability to work full time in this
occupation, as well as her intermittent participation in the labour market in
the past, her age and education level, and the possibility of future illness,
accident or family problems, which could require her to leave the workforce
temporarily. There are no positive contingencies as I have concluded it is not
reasonably possible that Ms. Cantin would have become a certified journeyman
electrician. The loss per year is thus $15,450. It is appropriate to use the
actuarial multiplier because the contingency factors have already been applied
to reduce the annual wage loss figure. The mathematical starting point in the
assessment of future loss of earning capacity is thus $173,627 ($15,450 ÷ $1,000
x $11,238).

[84]        
Ms. Cantin is now incapable of any type of employment given the chronic
pain she suffers in her upper and lower body and the many complications arising
from this condition, which include severe headaches with migraine
characteristics, mood dysfunction, panic attacks, irritability, memory loss and
catastrophic attitude. The medical prognosis is that there is very little chance
Ms. Cantin’s condition will improve at all and certainly not to the point where
she could be gainfully employed in a competitive labour market. Given these
findings, an award of $175,000 for loss of earning capacity is appropriate in
all of the circumstances.

IS MS. CANTIN ENTITLED TO AN AWARD FOR THE COST OF FUTURE CARE?

[85]        
Ms. Cantin claims the costs of future care as follows: housekeeping
services for 104 hours per year, 12 counseling sessions per year, 24
kinesiology sessions per year, taxi fare for appointments once per week per
year, a gym membership, home maintenance of $750 per year, and medications of
$1,740 per year. The total yearly cost is calculated as $11,378. Ms. Cantin
maintains a multiplier to age 80 or to age 70 should be applied to reach a
total award of $196,000 or $158,000, respectively. In addition, Ms. Cantin
claims a one-time expense of $13,000 for a pain clinic and semi-annual costs of
moving at a cost of $800 per move.

[86]        
Ms. Cantin argues these expenses are both reasonable and medically
necessary. Although her expert, Ms. Berry, recommended fewer expenses and for a
shorter duration, Ms. Cantin says Ms. Berry’s opinion underestimates her needs.
In support of her argument on cost of future care, Ms. Cantin relies upon Andrews;
Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2009
BCSC 494; Kenneth Cooper-Stephenson, Personal Injury Damages in Canada,
2d ed. (Scarborough, Ont.: Carswell, 1996); Spehar v. Beazley, 2002 BCSC
1104; and Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).

[87]        
Ms. Cantin also argues the court should increase the award by 15% to
reflect the positive contingency that her condition will worsen as she ages. In
support of this contingency, Ms. Cantin relies on Lines v. Gordon, 2009
BCCA 106.

[88]        
Ms. Petersen argues that the cost of future care items claimed by Ms.
Cantin have not been proven to be medically necessary or reasonable to promote
her mental or physical health. Further, Ms. Petersen argues that these costs
would be incurred in any event due to Ms. Cantin’s pre-existing injuries.
Lastly, Ms. Petersen argues that many of the costs will not be incurred because
Ms. Cantin will not use a gym membership or visit a public pool. In support of
her argument, Ms. Petersen relies upon Gregory v. ICBC, 2011 BCCA 144
and Milina.

[89]        
In support of the cost of future care, Ms. Cantin relied on an expert
opinion authored by Ms. Berry. After an extensive review of Ms. Cantin’s
medical records and an in home assessment of Ms. Cantin’s functional
capabilities on November 24, 2011, Ms. Berry made several recommendations in
regard to future care items and provided an estimate of their cost. Dr.
Armstrong has also included future care recommendations in his expert report at
pp. 19-20.

[90]        
The parties agree that claims under this heading must meet a twofold
test: (1) there is a medical justification for the cost of future care;
and (2) the claims are reasonable. The fact that justified costs are
expensive is not a factor to be considered by the court. The injured party is
to be fully compensated by the tortfeasor and is not expected to “get by” on
less than adequate post-accident care: See Spehar at para. 55.

[91]        
In Krangle (Guardian ad litem of) v. Brisco, [2002] 1 S.C.R. 205,
the Supreme Court of Canada re-affirmed these principles at paras. 21-22:

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

The resulting award may be said
to reflect the reasonable or normal expectations of what the injured person
will require. Jane Stapleton, “The Normal Expectancies Measure in Tort Damages”
(1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of
compensatory damages may be described as the "’normal expectancies’
measure", a term which "more clearly describes the aim of awards of
compensatory damages in tort: namely, to re-position the plaintiff to the
destination he would normally have reached … had it not been for the
tort". The measure is objective, based on the evidence. This method
produces a result fair to both the claimant and the defendant. The claimant
receives damages for future losses, as best they can be ascertained.

[92]        
Lastly, the Court of Appeal recently considered the type of evidence
necessary to justify the cost of future care in Gregory at para. 39:

I do not consider it necessary,
in order for a plaintiff to successfully advance a future cost of care claim,
that a physician testify to the medical necessity of each and every item of
care that is claimed. But there must be some evidentiary link drawn between the
physician’s assessment of pain, disability, and recommended treatment and the
care recommended by a qualified health care professional: Aberdeen [v.
Zanatta, 2008 BCSC 420] at paras. 43, 63.

[93]        
Applying these principles of law to the cost of future care items
claimed by Ms. Cantin, I have come to the following conclusions. First, it is
reasonable to assume that Ms. Cantin will require the same quantities of
medications each year as she currently requires. The schedule of special
damages supports a conclusion that this cost is $1,740 per year. Although it is
likely Ms. Cantin would have required some portion of the pain medication
regardless of the accident due to her pre-existing injuries, the award does not
take into consideration the expected increase in the cost of medications in the
future. As a consequence, I find it is not appropriate to make a deduction for
this contingency.  Second, Ms. Berry recommends medical supplies that include a
contoured memory foam pillow to reduce pain while sleeping, which should be
replaced annually at a cost of $129 per year; a zero gravity chair to support
Ms. Cantin’s spine in neutral alignment and reduce use of a static flexed
posture at a one-time cost of $2,598; and a shower stool to encourage upright
posture while showering at a one-time cost of $70. Dr. Armstrong recommends an
inter-trochanteric (sacral) belt to provide her with pain relief and improved
physical capacity at a cost of $75. I find these items are medically justified
based on Ms. Cantin’s disabilities and functional limitations.

[94]        
Dr. Armstrong also recommends 24 sessions with a psychologist who
specializes in chronic pain patients and uses cognitive behavioural therapy.
Dr. Armstrong opines that these sessions will help to reduce Ms. Cantin’s
emotional distress and thereby promote her recovery. The cost is estimated to
be $175 per session. Ms. Cantin argues that she requires ongoing counselling
and thus she should be awarded these costs annually at once per month or 12
sessions per year. While it may be that ongoing psychological counselling would
improve Ms. Cantin’s quality of life, there must be some evidence that such an
expense is medically justified. Dr. Armstrong’s opinion provides a medical
justification for the cost of this item but not on an ongoing basis. I thus
find it reasonable to award the cost of 24 counselling sessions at a total cost
of $4,200.

[95]        
The other therapies recommended by Dr. Armstrong and Ms. Berry are more
complicated because they are expressed in the alternative. If Ms. Cantin is
already at maximum medical recovery, and will not benefit from additional
therapies, Dr. Armstrong recommends a group-style multidisciplinary program of
rehabilitation whose primary objective is to teach Ms. Cantin how to manage her
pain symptoms and achieve a higher level of physical conditioning. If Ms.
Canton has not achieved maximum improvement, Dr. Armstrong recommends
specialized physiotherapy sessions to re-align her sacroiliac joint and improve
her core muscle strength. Once she completes this program of approximately 24
sessions over eight weeks, Ms. Cantin would require ongoing physiotherapy for a
year to gradually improve her fitness level. Thereafter she could manage more
informally by doing maintenance exercises in a gym. On the other hand, Ms.
Berry recommends that Ms. Cantin undergo a course of occupational therapy to
enable her to enter and benefit from a chronic pain program such as the one
recommended by Dr. Armstrong. The occupational therapist would provide more
overall management of Ms. Cantin’s recovery efforts, which a physiotherapist
does not provide. Further, Ms. Berry agrees that a course of physiotherapy is
necessary, but to restore Ms. Cantin’s neutral body alignment and address her
sacroiliac dysfunction to enable her to attend a chronic pain clinic. She also
recommends an annual pool membership to promote exercise and the assistance of
a kinesiologist for up to three years to provide instruction and guidance in
regard to exercise prescribed by her physiotherapist.

[96]        
In light of the very guarded prognosis for any significant recovery even
with appropriate therapies, it is difficult to conclude that a protracted
course of physiotherapy supervised by an occupational therapist and a
kinesiologist is medically justified. In addition, it is unlikely, based on Ms.
Cantin’s aversion to public pools, that she would use a pool membership. While
a gym membership may be medically justified to promote better physical health
and improve functional capacity, it is doubtful whether Ms. Cantin would
willingly attend a gym. She has demonstrated a fear of exercise in the past and
opted out of the Karp Fitness program after three months in 2008 based on her
fear of re-injury.

[97]        
On the other hand, the cost of a multi-disciplinary chronic pain clinic
is justified based on a need for Ms. Cantin to learn better pain management
techniques and to improve her posture and functional mobility if possible. I am
also satisfied that a limited course of specialized physiotherapy is medically
justified due to Dr. Armstrong’s diagnosis of sacroiliac joint dysfunction. If
this problem can be alleviated it will reduce Ms. Cantin’s lower back pain.
Thus I find it reasonable to award a one-time cost of a chronic pain clinic at
$13,550 and 24 sessions with a physiotherapist who specializes in chronic pain
and SI joint dysfunction at a cost of $75 per session or $1,800 in total.

[98]        
Ms. Berry recommends that Ms. Cantin be awarded 16 hours of housekeeping
service each year to handle the heavier cleaning tasks. It is her opinion that
Ms. Cantin derives therapeutic benefit from doing her own house cleaning. She
has always taken great pride in her high standards of cleanliness, structure
and order in her home. According to Ms. Berry’s assessment, Ms. Cantin has,
“learned to pace herself and [to] utilize activity modification with use of
light weight supplies.” Thus while Ms. Cantin claims 104 hours of housekeeping
services each year, I find only Ms. Berry’s recommendation is justified. I
award $368 per year for this expense.

[99]        
Ms. Berry recommends home maintenance assistance for tasks outside of
Ms. Cantin’s physical ability based on 15 hours per year. Mr. Murphy testified
that he will no longer be providing in home care for Ms. Cantin in the years to
come. It is his intention to live elsewhere. Ms. Cantin’s son Jake is also
planning to move away from home. In these circumstances, it is highly likely
that in future Ms. Cantin’s home will require maintenance that is beyond her
physical capacity and there will be no one else in her household who could
perform these tasks. Accordingly, I award the estimated cost of these services
at $750 per year. Similarly, I find Ms. Berry’s recommendation that Ms. Cantin
be provided with moving assistance is medically justifiable and reasonable.
Based on U.S. census data, Ms. Berry opines that Ms. Cantin will likely move a
minimum of three more times in her lifetime. I award $2,400 for the cost of
three moves.

[100]     Lastly,
Ms. Berry recommends a taxi allowance for up to four roundtrips per week for
transportation to her counselling sessions for a period of two months.
Thereafter, Ms. Berry opines that Ms. Cantin may be able to resume driving or
have sufficient tolerance to use Handydart. Ms. Cantin experiences anxiety when
she drives and has limited herself to very infrequent short trips to the local
store. Mr. Murphy, as well as her sons, Jake and Willard, confirm that Ms.
Cantin does not drive except in limited circumstances. Ms. Berry anticipates
that psychological counselling will help to reduce Ms. Cantin’s driving
anxiety; however, until there is some improvement in her condition and physical
tolerance, taxi transportation is the only reasonable means of ensuring she is
able to participate in necessary counselling and therapies. While Ms. Cantin
argues taxi services should be paid for indefinitely, there is no medical
justification for an ongoing expense of this nature. However, I am satisfied
that an award of $912 for taxi services is warranted in the circumstances as
recommended by Ms. Berry. Given Ms. Cantin’s current physical and emotional state
it is unlikely she could tolerate the lengthy waits for Handydart.

[101]     In
summary, I find a one-time expense of $25,605 is warranted for the cost of
future care. In addition, I award the cost of expenses on a yearly basis in the
amount of $2,987 until age 80. Based on the multipliers supplied by Mr.
Benning, the present value of the annual expenses is $51,545 ($2,987 x 17.256).

[102]    
Ms. Cantin argues that the cost of future care award should be increased
to reflect the positive contingency that her condition may worsen as she ages.
Conversely, if the evidence supports a real and substantial possibility that
her condition will improve over time, a negative contingency should reduce the
award for special costs. As described earlier, the expert medical opinion is essentially
consistent that regardless of the underlying cause of Ms. Cantin’s current
physical and mental state, there is little chance that her condition will
improve over time even with appropriate therapies. As a consequence, it is not
appropriate to reduce the award for the cost of future care due to a real and
substantial possibility of improvement. On the other hand, none of the expert
medical opinions suggests that Ms. Cantin’s condition may decline as she ages.
It is apparent that Ms. Cantin’s functional mobility has declined since the
accident in 2004. As Ms. Berry notes in her report at p. 10:

Based on a review of the records
and Ms. Cantin’s presentation, it appears she has functionally regressed
overtime; associated with poor pain management including inconsistent
medication use, lack of exercise and activity, and use of compensatory body
movements that over time have restricted her range of motion, particularly her
trunk.

[103]     Assuming
Ms. Cantin receives the appropriate therapies, as contemplated by the award for
the cost of future care, it is not likely that she will suffer a further
decline in her physical and mental health due to poor pain management and a
lack of exercise. While there is evidence that Ms. Cantin’s condition may not
improve with therapy, there is no sound basis upon which to conclude there is a
reasonable and substantial possibility her condition will get worse. Thus I
cannot award an increase in the cost of future care award based on this
positive contingency.

WHAT SPECIAL DAMAGES IS MS. CANTIN ENTITLED TO RECEIVE?

[104]     Ms. Cantin
claims the expenses listed in her special expense schedule in the amount of
$20,000. These expenses include medication, physiotherapy, chiropractor
sessions, massage therapy, Karp Fitness program, taxi fare, a bed purchased to
assist her sleep, and other miscellaneous expenses related to her injuries. In
total, she claims $21,473.

[105]     Ms.
Petersen argues that many of these expenses would have been incurred in any
event due to Ms. Cantin’s pre-existing injuries. In particular, the Tylenol 3
would have been necessary regardless of the accident. Ms. Petersen also argues
that many of the expenses are unreasonable. In particular, the cost of an
orthopaedic bed that she no longer uses and interest on the chiropractic services
account.

[106]     I find
that the special expenses claimed by Ms. Cantin are for the most part
reasonable and causally connected to the injuries she suffered in the accident.
I agree with Ms. Petersen’s argument that part of the cost of Tylenol 3 should
be borne by Ms. Cantin due to the likelihood she would have continued to
require pain medication for her pre-existing upper body injuries. I thus deduct
30% of this cost from the award, which I calculate to be approximately $80. The
cost of therapies is also reasonable, including interest on a chiropractor’s
account. It is apparent that Ms. Cantin lacked the funds to pay for these
necessary expenses and a tortfeasor remains liable for all foreseeable expenses
that are causally linked to the injuries caused by the accident. Lastly, while
the orthopaedic bed was ultimately not successful in improving Ms. Cantin’s
sleep, it was a reasonably necessary expense related to her sleep disturbance
which is a complication of chronic pain syndrome. Thus I award $21,393 for special
damages.

HAS MS. CANTIN FAILED TO MITIGATE?

[107]     Ms.
Petersen argues that Ms. Cantin has failed to mitigate her loss because she has
not followed the therapy recommendations of her doctors to undergo a proper and
continuous course of exercise. The fact that she fears exercise is not an
excuse for refusing to engage in helpful therapies. In support of this
position, Ms. Petersen relies on Middleton v. Morcke, 2007 BCSC 804 and Qiao
v. Buckley, 2008 BCSC 1782, at paras. 56-68, 63-66. Ms. Petersen
maintains Ms. Cantin is not exempt from a duty to mitigate because her excuse
for not exercising regularly was not something beyond her control. Ms. Petersen
argues that Ms. Cantin’s embarrassment about exercising in public and her fear
of re-injury are not reasonable excuses. Ms. Petersen also argues Ms. Cantin’s
failure to take prescribed medication constitutes a failure to mitigate.

[108]     Ms. Cantin
argues Ms. Petersen has failed to prove that she has failed to mitigate; there
is no evidence that had she exercised regularly based on her doctors’
recommendations her condition would be significantly better today. Further, Ms.
Cantin argues that the underlying emotional barriers to exercise are a direct
consequence of chronic pain syndrome. Thus it is the injuries she suffered in
the accident that made her less able to follow through with the recommendations
of her doctors to engage in an exercise program. Further, Ms. Cantin maintains
that she was a willing, active participant in the Karp Fitness program until
the exercises became too onerous and painful.

[109]     The
claimant has a duty to mitigate her loss to ensure it is no greater than it
should reasonably be. The defendant must prove that the claimant failed to
follow recommended therapies and that if she had done so they would have been
effective in ameliorating her condition. While a claimant may be excused from
properly mitigating, the reason for failing to follow recommendations must be
beyond her control: See Qiao at paras. 57-58, 63.

[110]     I am
unable to accept Ms. Petersen’s argument that Ms. Cantin failed to mitigate by
not taking medications prescribed by her physicians. Although it is apparent
she became frustrated with their lack of effectiveness, the primary impediment
was a lack of financial resources.

[111]     Ms.
Cantin’s failure to engage in a regular program of exercise is more complicated
to address. During the first several months after the accident, Ms. Cantin was
in the acute phase of her injuries and none of her physicians or therapists
recommended active exercise. Rest, various medications and passive modalities
such as massage therapy, physiotherapy and chiropractic therapy were
recommended. In late 2004 and until mid-2006, Ms. Cantin continued to perform
some of the physical aspects of her job as an electrician’s helper. In this
period she saw various clinic doctors in Vernon and in the Lower Mainland.
Apart from a consultation report from Dr. Condon dated December 21, 2005, which
suggests that pelvic support pants and exercise may improve Ms. Cantin’s core
muscle power, there is no evidence that her other physicians recommended
exercise over passive therapy. There is also no evidence that Dr. Condon’s
recommendation was brought to Ms. Cantin’s attention.

[112]     Dr. Condon
referred Ms. Cantin to Dr. Yasin, who is a physiatrist, in December 2006. He
recommended trigger point injections of a local anesthetic in her lower spine
and a referral to the Thorson Pain Clinic. This clinic assessed Ms. Cantin as
an appropriate candidate for their program in November 2006. Although Ms.
Cantin paid for four sessions, including one bio-feedback treatment from
Thorson, she could not afford to participate in the full program recommended
and her insurer refused to provide funding. The cost of the full treatment
program was $9,000 in December 2006. This is the type of program recommended by
Dr. Armstrong in his report dated November 27, 2011, at a cost of about
$15,000. This program would have included physical rehabilitation with
reconditioning and the correction of pelvic mal-alignment.

[113]     It was not
until June 2007 that Ms. Cantin began seeing Dr. Dodds. At that time Ms. Cantin
presented with multiple areas of ongoing pain in her neck, upper back,
shoulders, mid and lower back, hips, knees, and both legs. She was in
considerable stress due to the pain and exhibited the complicating symptoms of
decreased mood, concentration, energy, motivation and lack of restful sleep. It
was not until August 2007 that Dr. Dodds began to recommend gentle stretching
exercises and yoga. It was only in March 2008, when he saw a consistent
improvement in her pain symptoms, that Dr. Dodds recommended an active exercise
program. In response to this recommendation, Ms. Cantin was assessed by Karp
Fitness on March 5, 2008. Karp Fitness recommended a four to six week
rehabilitation program, consisting of two to three sessions per week for a
total of 12 to 18 sessions. Ms. Cantin participated in 21 sessions between the
beginning of March and the end of May 2008. During each session it is noted
that she made a good effort to accomplish the objectives set for her. Although
the precise reasons for her decision to leave the program are unclear, it is
apparent that she persevered with this exercise regime for longer than
recommended by Karp Fitness.

[114]     Thereafter
it does not appear that Dr. Dodds encouraged her to exercise beyond a need to
regulate her activity “in the setting of fibromyalgia syndrome”. Dr. Dodds
testified that he never advised Ms. Cantin to avoid exercise altogether;
however, he did not recommend that she return to Karp Fitness. Ms. Cantin went
on to participate in a program of spinal decompression that appeared to be
successful but the cost of the treatment forced Ms. Cantin to discontinue it.
Ms. Cantin’s condition continued to improve until September 2009 when she had a
relapse of the more serious complications from chronic pain syndrome. These
symptoms worsened over 2010 and 2011. Finally, it was not until November 2011
when Dr. Armstrong clearly identified Ms. Cantin’s sacroiliac joint
dysfunction. A regular program of exercise would not have been sufficient to
improve this condition. Ms. Cantin required a specialized program of
physiotherapy to resolve this problem before exercise could have any beneficial
impact. Although the Thorson Pain Clinic would have addressed this
mal-alignment in light of Dr. Condon’s conclusion that the SI joint was
dysfunctional, the cost of this program was beyond Ms. Cantin’s means.

[115]     Lastly, it
is apparent that Ms. Cantin has a long standing aversion to exercise due to
fear of re-injury. This issue was considered by the WCB when Ms. Cantin’s claim
for benefits was assessed in 2001/2002. Dr. Adrian, the WCB consultant
neurologist, concluded that this fear of exercise would inhibit Ms. Cantin’s
recovery process. Thus her fear of exercise appears to be part of her original
make up.

[116]     In my
view, Ms. Cantin’s pre-accident aversion to or fear of exercise, the lack of
funds necessary to engage in a comprehensive physical rehabilitation program,
and the inconsistent or non-existent treatment recommendations concerning
exercise in the first few years after the accident all underlie Ms. Cantin’s
failure to regularly participate in this form of therapy. In addition, by the
time Ms. Cantin began seeing Dr. Dodds in 2007, the chronic pain syndrome and
its emotional complications were well established and presented a significant
barrier to following through with an exercise program. Despite these
difficulties Ms. Cantin participated in the Karp Fitness program for three
months. She was committed and showed good effort throughout the program. The
fact that she left the program prematurely is more a product of her original
make up and her advanced chronic pain symptoms than a wilful, voluntary act. By
this time Ms. Cantin was so disabled from a functional and emotional
perspective that any form of exercise was prohibitively painful for her.

[117]     Accordingly,
for these reasons I find that Ms. Cantin did not fail to mitigate; her
inability to exercise regularly since the accident was for reasons beyond her
control. Further, I find that without treatment for her SI joint, gentle
exercise would have had little impact on her overall condition.

COSTS

[118]     I will
entertain submissions on costs if the parties are unable to resolve this issue
informally.

SUMMARY OF CONCLUSIONS

[119]     I have
found Ms. Cantin is entitled to the following damages:

1.       $150,000 for
non-pecuniary damages;

2.       $98,167 for past wage
loss;

3.       $175,000 for loss of
future earning capacity;

4.       $77,150 for cost of
future care; and

5.       $21,393 for special
damages.

“Bruce J.”