IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120711

Docket: M121028

Registry:
New Westminster

Between:

Tamara Combs

Plaintiff

And

Wayne Moorman and
Shelly Weiss

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Humphries

Reasons for Judgment

[1]            
Ms. Combs was injured in a motor vehicle accident on September 29,
2007.  Her car, which was stopped at a green light waiting to turn left, was
struck from behind, pushed into the oncoming lane, and struck again head on by
another vehicle.  Damage to the rear and front of her vehicle was extensive and
it was written off.

[2]            
ICBC has participated as a Third Party.  Neither defendant participated
although Ms. Weiss came to court on the first day of trial to say she wished to
advise the court she was out of the country when the accident occurred.  She
was told she could testify after the plaintiff’s case was presented and she remained
until the lunch break.  Counsel for the Third Party advised the court at that
point that Ms. Weiss had decided not to attend the remainder of the trial.

[3]            
There has been no formal admission of liability, but counsel for the
Third Party stated that her client does not contest liability nor that the
motor vehicle accident caused Ms. Combs to suffer injuries and that those
injuries caused Ms. Combs loss and damage for a period of time.  The Third
Party takes issue with the extent of the effect of those injuries on an ongoing
basis.

[4]            
Based on the evidence I have heard of the collision, I accept that the
defendant Moorman negligently collided with the Plaintiff and caused her
injuries.

[5]            
Ms. Combs, 38 years old, seeks damages for non-pecuniary loss, past and
future loss of income, special damages, cost of future care, and past loss of housekeeping
capacity.

[6]            
Ms. Combs was taken from the accident scene to the hospital in an
ambulance and released several hours later.  She suffered damage to her left
hip and left leg.  She was extensively bruised and had a laceration in her
groin.  Her left leg was swollen and her knee was painful.  She felt pain in
her neck and back immediately.  Her little finger was dislocated, and was
repositioned at the hospital, a manoeuvre that was extremely painful.

[7]            
Her husband drove her home from the hospital.  She required assistance
with all movement and personal care for about three weeks, during which she was
on crutches.  Her husband helped and her mother took time off work to move in with
the family and assist with Ms. Combs’ care and with the couple’s young child.

[8]            
Ms. Combs is a registered massage therapist.  Her job is physically
demanding and requires her to be on her feet about 80% of the day.  She has to
use her upper body, push, pull and bend limbs, and bend over frequently.  She
has to change the linen on her massage table for every patient and do laundry
during the day.

[9]            
Ms. Combs was in good health prior to the accident.  She had a busy
practice, working 4 ½ days a week, for 7 – 8 hours a day.  At the time of the
accident she was working only three days per week because she had just had her
first baby, born in May of that year.  She was planning to get back up to 4 ½
days again by January of 2008.

[10]        
Ms. Combs has seen her family doctor, Dr. Koss, regularly since the
accident.  She was on crutches for three weeks.  She received physiotherapy,
massage therapy, chiropractic treatment and kinesiology assistance and returned
to work after the accident in about 4 months, working 2 days a week.  She gradually
increased her hours to 4 days per week by August of 2008, working about 6 hours
per day, and continued that through 2009.

[11]        
Ms. Combs had a second child in July of 2010, and took 4 months
maternity leave at that time.  She went back to work 3 days a week in October,
and worked up to 4 days a week.  She says if she were not still suffering the
effects of the accident, she would be working 4 ½ days a week.

[12]        
Ms. Combs still maintains a busy and full practice but she says she tires
more easily.  This is corroborated by her clinic partner, Mr. Smith, and the
staff at the clinic.  Her assistant at work says Ms. Combs is obviously
uncomfortable and must take more breaks than she used to, but her patients
would never know she is suffering.

[13]        
Ms. Combs is not able to keep up with house and yard work, something she
did before.  Her husband, who did very little around the house and yard prior
to the accident, now does the majority of the work.  She enjoyed a number of
recreational activities before the accident – occasional hiking, biking,
golfing and swimming and water aerobics.  She does none of them now, although
she does exercise in the shallow end of the swimming pool.  She does 15-20
minutes of exercise or stretching every night.

[14]        
She and her husband used to socialize but she is too tired after work to
do that anymore.  She acknowledged that having two young children has also
changed their lives.

[15]        
Ms. Combs’ neck and upper back continue to be painful and stiff.  She
deals with this on a daily basis.  At times she feels numb between her shoulder
blades.  She feels dizzy and nauseous at times and has to lie down at lunch and
after work.  The pain in her lower back is intermittent, depending on her hip.

[16]        
She has a large hematoma on her left knee which is permanent.  Though
somewhat unsightly, it does not cause her ongoing discomfort.  She suffers knee
pain occasionally but it does not prevent her from doing things.  However, she
has difficulty kneeling.

[17]        
Her dislocated finger is now asymptomatic except for decreased sensation
in the tip and pain if she catches it on something.

[18]        
Although it was not evident from her own evidence, both her husband and
her mother say she is moody and not as patient as she used to be.

[19]        
Pain in her left hip is her primary concern presently.  She says it is
very painful and affects every treatment she gives.  The pain makes her put her
weight on her right leg, and consequently her right leg has begun to hurt as
well.  After an MRI, it was determined that she has a labral tear, that is a
tear in the material cushioning her hip socket.  A bone scan showed some
tenderness on the left trochanter, that is the top of the femur.

[20]        
Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing
injections into the hip and the trochanter respectively as a diagnostic device
to determine where the pain was coming from.  That is, if one area were frozen
and the pain continued, it would show that the source was the other area.  Dr. Smit
said the injections give temporary relief, but symptoms would return in 6 – 8
weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs
declined this procedure.

[21]        
Depending on how much pain the labral tear causes, surgery can be
warranted.  After receiving medical advice, Ms. Combs decided to try
conservative treatment rather that undergo surgery.  Ms. Combs’ main concern
was the recovery time – another 4 months – given the young age of her
children.  However, she is now on a waiting list for the surgery.  According to
the medical evidence, the delay in deciding to have the surgery is not a factor
in the success of the surgery.  This particular procedure has a high degree of
success, although there are some risks.

[22]        
The MRI did not show any damage to the cartilage in the hip joint, but whether
it is damaged can only be determined conclusively through arthroscopic
surgery.  If the cartilage is damaged, Ms. Combs faces the possibility of the
onset of arthritis earlier than she would have done but for the accident,
although the onset would still be 20 to 30 years in the future.

[23]        
There is some difference of opinion between Dr. Masri, the orthopaedic
surgeon called by the defendant, and Dr. Kleinman, the physiatrist called
by the plaintiff, as to whether degenerative changes leading to arthritis are
present.  Dr. Masri said the labral tear would not lead to arthritic
changes, and based on the MRI, he could see no damage to the cartilage.  Dr.
Kleinman said the altered gait caused by the labral tear could result in small
changes to the cartilage, which, over years, might cause arthritis.  He said
the recent bone scan suggests some irregularity which supports his contention.

[24]        
Dr. Smit agreed with Dr. Masri that the risk of osteoarthritis would
increase only with cartilage damage, and the MRI showed none, although he was
of the opinion that an arthroscopy would likely show there was damage.  Even if
there were some damage to the hip, a hip replacement is not a certainty.  He
said a 90% success rate is expected for hip replacements.  However, he said the
Plaintiff has suffered irreversible damage.  Symptoms can be reduced but the
damage cannot be undone.

[25]        
Both orthopaedic specialists agreed that trochanteric pain can be
reduced or eliminated with a regime of abductor exercises and/or stretching.

[26]        
Ms. Combs takes Advil and muscle relaxants, as well as Tylenol 3’s.

DAMAGES

NON-PECUNIARY DAMAGES

[27]        
Ms. Combs was a straightforward witness.  She is obviously used to
coping with life in a businesslike manner and does what she has to do.  She
works hard, runs a successful clinic, and looks after two children and the home
with the help of her mother, her mother-in-law, and her husband.

[28]        
Ms. Combs suffered fairly extensive injuries in this accident, some of
which are permanent.  The hematoma in her knee and the damage to her finger,
though not interfering with her activities, will not improve.  She deals with
daily neck, back and hip pain and has done so for four years.  While surgery
will likely improve her hip pain, it is not likely that her neck and back pain will
resolve.  Her prognosis is poor.

[29]        
She still works long hours, but only with pain, and foregoes activities
she used to enjoy in order to work those hours.  Her social life has been
impacted because she is too tired to participate.  She cannot sit up on the bed
and read to her daughter because of her back pain.

[30]        
The Plaintiff submits that an award of non-pecuniary damages in the
range of $100,000 – $110,000 is reasonable, given her ongoing symptoms and
upcoming surgery, as well as the risk of future arthritis.  She refers to Skoda
v. Kim, [1997] B.C.J. No. 2568 (QL) (BCSC); Klingsat v.
Westminster Savings Credit Union 2001 BCSC 1701; Foran v. Nguyen,
2006 BCSC 605.

[31]        
The Third Party submits that an award of $70,000 would be appropriate,
given that Ms. Combs has refused various treatments and has foregone surgery
until very recently.  It is the Third Party’s position that Ms. Combs should
have had the injections and should have undergone the hip surgery, and that they
have established that her failure to do so was unreasonable and constitutes a
failure to mitigate.  Conversely, since she did not take the recommended
treatments, it may be inferred that her pain is not that great.

[32]        
The Third Party refers to Grant v. Gonella, 2008 BCSC 1454; Prempeh
v. Boisvert, 2012 BCSC 304; and Power v. Carswell, 2011 BCSC 1672. 
The latter case also deals with failure to mitigate.

[33]        
I am of the view that it would have been helpful for Ms. Combs to have
the injections for diagnostic purposes and for temporary relief.  Her failure
to do so was unreasonable, but although some of her pain may have been relieved
temporarily by this procedure and diagnosis of the source of the pain would
likely have been facilitated, failure to undergo this procedure does not affect
any long term outcome.  Dr. Smit said the cases in which pain does not return
after the injections are “a distinct minority”.  In any event, Ms. Combs must
still face hip surgery, and according to the medical evidence, delay in having
the surgery does not affect its success rate.  Her refusal to undergo months of
recovery from surgery while running a busy practice and taking care of young
children is simply a matter of weighing how much pain she could cope with and
still carry on.  I cannot see her refusal to have the surgery until now as
unreasonable.

[34]        
Obviously each case has distinctive facts, and it is often difficult to
reconcile them as awards for pain and suffering are inherently individual.  The
cases cited by the plaintiff involve considerably more severe and wide ranging
symptoms that Ms. Combs has.  The cases cited by the Third Party involve
symptoms that resolved faster than Ms. Combs’ have.  She is not a complainer,
but four years post accident, she is still coping daily with its effects and
now has to undergo the surgery and recovery time.  The effect of the chance of
the early onset of arthritis in the distant future is not great, given the
scant evidence that it is likely to occur.

[35]        
Considering the evidence and the cases cited to me, I set non-pecuniary
loss at $90,000.

WAGE LOSS

[36]        
Ms. Combs and her partner own their clinic.  They each keep their
revenues and share expenses 50/50.  In 2006 they began to rent space to other
massage therapists, thus increasing their income.  Her rate is informally set
by the college of massage therapists.  In 2007 it was $40/half hour.  Now it is
$52.  She must pay her half of the expenses for the clinic.

[37]        
Her declared business and rental income has been:

Past wage loss

[38]        
The figures arrived at by each of the parties for past wage loss for the
twenty weeks that Ms. Combs was off work as a result of the accident, that is
September 2007 to February 2008, are very close – less than $1,000 apart.  The Plaintiff’s
figure is $26,400; the Third Party’s is $25,600.  Apparently the difference is
whether weeks or months are the appropriate units by which to divide the number
of clients.  Since the number of weeks in a month can differ, I accept the plaintiff’s
figure of $26,400 for that period of wage loss.

[39]        
The main difference between the Plaintiff and the Third Party’s figures
for the remainder of the wage loss rests on whether Ms. Combs would have
returned to work 4 ½ days a week or only the 4 days that she currently works,
even if the accident had not occurred.  Ms. Combs says she was intending to
return to work 4 ½ days at the time of the accident, but the Third Party says
that is not likely, given that she now has two children and the further half
day of work would not be worth the additional day care and commute.

[40]        
The Plaintiff calculates her loss of clients for 2008 at 10 patients per
week.  She allows 50% for her office expenses.

[41]        
For the remaining portion of 2008, then, the Plaintiff says she would
have seen 40 clients per week, working 4 ½ days per week, but for the
accident.  The Third Party says it would only have been 36 clients because she
would not have returned to work more than 4 days even if the accident had not
occurred because of her young child.  The difference is $19,360 versus $26,400.

[42]        
I accept the Plaintiff’s figure for this period of time.  Ms. Combs had
only one child at this time and it is likely she would have been able and
willing to carry on with her regular hours after her maternity leave ended.  Thus,
for 2008 her gross loss was $26,400, with a net loss of $13,200.

[43]        
For 2009, the plaintiff calculates her gross loss at $23,500, with a net
loss of $11,750.  I accept that figure.

[44]        
For 2010, when Ms. Combs had her second child, the gross loss is
calculated at $18,200, with a net loss $9,100.  For 2011, it was $26,000, with
a net loss of $13,000 and for 2012, it was $8,112, with a net loss of $4,056.

[45]        
Ms. Combs’ second child was born in 2010.  Assessing whether Ms. Combs
would have returned to work for 4 ½ days per week after her second child was
born or whether she would have reduced her working week to 4 days in any event is
a hypothetical exercise, to which the concept of estimating relative likelihood
is applicable (Smith v. Knudsen, 2004 BCCA 613).

[46]        
Ms. Combs testified that she and her husband needed the money so she
would have returned to her regular work schedule after her second child was
born in 2010.  The defendant says it is likely she would not have done so
regardless of the accident, given the commute, the cost of day care, and the
general responsibilities attendant on having two young children.

[47]        
It is a reasonable proposition that the commute, day care costs and the
care of two children would likely have had an impact on her decision to work an
extra half day.  However, I also take into account Ms. Combs’ own evidence and
her strong work ethic.  She has established a substantial likelihood of loss of
the half day per week, but I would estimate the chances of the loss occurring after
the birth of her second child at about 50%.

[48]        
I would therefore assess past wage loss taking that likelihood into
account.  I assess the past loss of income for 2010 to 2012 at $13,000.  Thus
the total for past loss of income is $64,350, to be adjusted for tax.

[49]        
I understand counsel to agree on the appropriate rate of taxation at .8,
and I also understand that the plaintiff did not already apply that multiplier
to the figures I have referred to above.  Applying that rate to $64,350, the amount
adjusted for tax is $51,480.

Loss of Future Earning Capacity

[50]        
The difference between 4 ½ days per week and 4 days per week is also
relevant to future loss.

[51]        
Ms. Combs says she can no longer work 4 ½ days as she did before the
accident and must take more breaks in the day.  She says her chronic neck and
back injuries will significantly impair her future employment as a registered
massage therapist.  She says she sees about 6 to 8 fewer patients per week than
she would have but for the accident.  As well she faces surgery to repair the
labral tear, as well as future hip replacement surgery if the accident
triggered the early onset of arthritis.

[52]        
She faces one future surgery and possibly two, although the second would
be in the distant future.

[53]        
Also, because of the physical nature of her job, she faces the
possibility of a further decrease in her capacity to work as well as a change
in careers.  Dr. Koss and Dr. Kleinman both said she would suffer
limitations in terms of ongoing hours as well as the number of years she can
maintain her level of work in a competitive environment.  Dr. Smit also
agreed that the irreversible injury to her hip has implications for her working
ability, despite the likelihood of success in the surgery.

[54]        
Ms. Combs seeks $250,000 for loss of future earning capacity, based on
the time she will have to miss due to surgery and recovery, her reduced
capabilities to work to her former level as a result of the accident, and the
possibility that she will have to retrain.

[55]        
The Third Party says Ms. Combs is earning what she would have been
earning even if the accident had not taken place, given that she now has two
children.  As well, she cannot claim for future wage loss as a result of
trochanteric pain that can be significantly reduced or eliminated through
exercise.

[56]        
The Third Party acknowledges that the hip surgery, if Ms. Combs has
it, will entail time off from work.  As far as hip replacement goes, however,
that depends on whether the cartilage was damaged and even so, would take place
decades in the future when she would likely be retired in any event.  The Third
Party would set future loss at $30,000.

[57]        
Ms. Combs’ job is a physical one and I accept that there is a
possibility that she will have to retrain at some point, although she has coped
with the physical demands for several years since the accident, and the
upcoming hip surgery has a very high success rate which should greatly reduce
her discomfort.  It seems likely that such a change in career, should it occur,
will be some years in the future.

[58]        
While I accept that there is a good chance that Ms. Combs would have
reduced her working week from 4 to 4 ½ days per week for a period of time while
she has two small children at home, given Ms. Combs’ approach to her business
and her general capacity and willingness to work, I am of the view that there
is a substantial likelihood that she would have returned to 4 ½ days for a
period of time when her children were older.

[59]        
I am satisfied on the evidence of Dr. Koss, Dr. Kleinman, and Dr. Smit
that Ms. Combs has established a significant possibility of future loss of
income as a result of the accident.  Not only will she suffer some ongoing loss
in the future as a result of the diminished working hours and possible
retraining, but she will also suffer a loss associated with the surgeries and
recovery time, although I agree with the defendant that the possibility of loss
from hip replacement surgery is small.

[60]        
Taking into account the loss of half days, the requirement for surgery in
the near future and the recovery time, the small possibility of loss from hip
replacement in her working years, and the substantial possibility of loss
arising from the need to retrain some years in the future, I assess the loss of
future earning capacity at $100,000.  While some of this figure is due to
recurring losses over several years which should attract a multiplier for
present value, I have already taken this, as well as the usual contingencies,
into account when assessing the total amount.

COST OF FUTURE CARE

[61]        
Ms. Combs seeks $125,000 for the cost of future care.  These costs
include physiotherapy, massage therapy, an exercise program, occupational
therapy, counselling, vocational counselling, child care assistance, homemaking
assistance, yard work assistance, future surgical needs, and various personal
care and mobility aids.

[62]        
The Third Party agrees that an exercise program would be beneficial, but
says the Plaintiff has not had physiotherapy since the initial post-accident
treatment period.  Her doctors did not recommend it, or massage therapy, until
the cost of future care report was done.  Ms. Combs said she would not find
occupational therapy or counselling useful.  The Third Party takes the position
that Ms. Combs will not change careers and so will not benefit from vocational
counselling.

[63]        
The Third Party takes the position that, given Ms. Combs’ busy schedule,
she would always have to rely on outside help with her house and children, and
she should not be over compensated, given her claim for past loss of housekeeping
capacity.  However, the Third Party concedes that an exercise program would be
helpful and Ms. Combs would need child care over the next few years to take
full advantage of that.

[64]        
The Third Party says surgical recovery costs should be minimal and the
need for personal and mobility items is not supported on the evidence.

[65]        
Generally, I agree with many of the points made by the Third Party, but I
am of the view that the likelihood of requiring vocational counselling at some
point is significant.  As well, home care and yard care are items that Ms. Combs
would have fully participated in on an ongoing basis but for the accident.  I
recognize that the hip surgery may improve her capacity for physical work, but
her neck and back pain have remained as sources of limitation.  At some point
in the future as she ages, it is likely Ms. Combs will either no longer live in
a house with a yard, or would have required assistance with yard work in any
event, but she is only 38 years old at present.

[66]        
Considering these factors in the context of the figures provided in the
cost of future care report, as well the need for an exercise program and child
care, I set the cost of future care, adjusted for present value, at $40,000.

SPECIAL DAMAGES

[67]        
Special damages are agreed at $17,606.62, with the exception of the cost
of a new mattress ($1,751.66), and the mileage Ms. Combs claims for attending
at a massage clinic some distance from her home ($2,522.96).  Ms. Combs said
her mattress at the time of the accident was 7 years old and quite firm.  After
the accident she had to get a very soft mattress in order to be able to sleep. 
Finding a comfortable position to sleep in when recovering from an accident is
obviously of importance.  I am satisfied that that was a reasonable expenditure.

[68]        
Ms. Combs testified that South Burnaby Massage is about 15 minutes away
from her home.  There are closer massage therapists but she knew the person at
South Burnaby.  That may be a reasonable personal choice but not one that the
defendants have to fund.  However, I have no evidence as to the difference in
mileage.  Taking into account the number of visits to South Burnaby and using
the rate of .47 cents per kilometer, I will reduce the mileage claims by $150.

PAST LOSS OF HOUSEKEEPING
CAPACITY

[69]        
Ms. Combs formerly did all the house and yard work herself, with very
little assistance from her husband.  Since the accident, he has done a large
share of it, and her mother helps out as well.  She claims $25,000 for past
loss of housekeeping capacity, based on 3 hours per week.  Claims for the
future are made under the cost of future care.

[70]        
Her husband, Mr. Combs, is a plumber, now self-employed.  Prior to the
accident he worked for a company.

[71]        
The Third Party says they should not be responsible for putting Ms. Combs
back into the position she was when she was working 4 ½ days a week, with no
children.  Now she has two children, both she and Mr. Combs are self-employed
and the more they work, the more they would always be dependent on outside help
to do things they had time to do themselves before.

[72]        
Nevertheless, Ms. Combs cannot perform the household tasks she used to
do and now relies on her husband and her mother to assist.  I agree with the
defendant, however, that the plaintiff’s approach of using Mr. Combs’ hourly
rate as basis to assess the loss is not appropriate.  It does not make sense
that Mr. Combs would give up lucrative hours at a high paying job to come home
to do the housework rather than hire someone at a regular rate for housekeeping. 
It is also a significant possibility that the family would have required some
outside help in any event, given their busy schedules, but I am satisfied that
Ms. Combs is an efficient hard working person and would have continued to do
regular household tasks that she is no longer able to do.  I assess the past loss
of housekeeping capacity at $10,000.

RESULT

[73]        
In the result, I award the following:

[74]        
If there are any other calculations or adjustments to be made, those
will be done by counsel with liberty to apply in the event of disagreement.

[75]        
Unless there is a reason to address costs, the Plaintiff is entitled to
costs at Scale B.

“M.A.
Humphries J.”
The Honourable Madam Justice M.A. Humphries