IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120713

Docket: M100834

Registry:
Vancouver

Between:

Colette Nicole St.
Germain

Plaintiff

And

Eustace Jemmott

Defendant

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment

INTRODUCTION

[1]            
Collette St. Germain’s back was injured on April 16, 2008, when a
vehicle in which she was the front seat passenger was struck from behind by a
runaway van at a gas station in Surrey, British Columbia.

[2]            
When the collision occurred, the driver of the vehicle in which Ms. St.
Germain was seated was starting to back up out of a parking stall. Ms. St.
Germain had her seat belt on and was holding a cup of coffee.

[3]            
Because she saw the runaway van approaching, Ms. St. Germain turned her
head to the right and was facing partly rearward when the van struck. Although
she tried to brace herself, she was thrown forward and then jerked backward by
the force of the collision.

ISSUES

[4]            
The defendants have admitted liability.

[5]            
Although she suffered only soft tissue injuries in the collision, Ms. St.
Germain has not yet fully recovered from those injuries in the more than four
years that have passed. She complains of back pain and says she now also suffers
from migraine headaches more frequently than she did before the accident

[6]            
At issue is the assessment of Ms. St. Germain’s claims for:

1)    Non-pecuniary
damages for her loss of enjoyment of life;

2)    Damages for past
income loss;

3)    Damages for
impaired income earning capacity;

4)    Damages for past
and present loss of housekeeping capacity; and

5)    Damages for cost
of future care.

BACKGROUND

[7]            
My recounting of the background circumstances is based upon the evidence
given by Ms. St. Germain.

[8]            
When the collision happened, Ms. St. Germain was 31 years old. She was
living in Surrey with her husband and her two young sons, then aged eight and
nine.

[9]            
Ms. St. Germain and her husband had previously been separated. However, during
that separation he suffered a brain injury and moved back in with Ms. St.
Germain and their children.

[10]        
At the time of the collision Ms. St. Germain had been employed since
2006 as a hair stylist with an organization known as “MegaHair.”

[11]        
On the day of the collision she was on her way to a training course in
Vancouver with a fellow employee who owned the car which the runaway van struck.

[12]        
Ms. St. Germain was upset and crying after the collision but was able to
get out of the car and get napkins to clean up her coffee which had spilled.

[13]        
She was also able to continue on to the hair styling course, but felt
shocked and stressed during the 40-minute drive there.

[14]        
The course that day involved sitting, listening, and taking notes.
Ms. St. Germain was able to complete the work but was very uncomfortable while
sitting, and felt a burning sensation in her lower back on the left side.

[15]        
Because her back was “really sore” when the course ended at about 4:00 p.m.,
Ms. St. Germain decided to go to a walk-in clinic in Surrey. She did not
go to see her long-time family doctor, Dr. John Brynjolfson, because his office
was relatively far away in Langley, where she had previously resided

[16]        
At the walk-in clinic, Ms. St. Germain complained of a burning
sensation in her lower back on the left side and some tenseness and tightness
in the rest of her back. She was given muscle relaxants by Dr. Thomas Konkin, the
attending physician, and told to take Ibuprofen, to try to relax and do
stretching exercises. Under cross-examination she acknowledged that she was also
advised by Dr. Konkin to go to see her family doctor, but admitted she did
not do so for “a few months.”

[17]        
After going to the walk-in clinic, Ms. St. Germain went home and “laid
on the couch.” She took Ibuprofen but the pain worsened. She was unable to make
dinner that night or clean up as she usually would have done.

[18]        
She went to work the next day with the same sensation of burning in her
back. She worked her regular shift but “struggled through it” with discomfort
and stiffness in her lower back. She said that compensating for pain in her
lower back led to stiffness in her upper back and between her shoulder blades,
primarily on the left side.

[19]        
For the next two weeks Ms. St. Germain spent most evenings lying on the
couch and did “not really do” the household tasks she would normally do, but
did cook meals with some assistance from her husband. Most household tasks went
undone.

[20]        
Ms. St. Germain continued to do the stretching exercises she was taught
at the walk-in clinic.

[21]        
She said that after that initial two-week period she still spent “about
three days a week” lying on the couch in the evening because of the pain she
endured at work during the day.

[22]        
Ms. St. Germain did not lose time at work as a consequence of her
injuries in the six months after the accident. She did, however, testify that
while working she suffered from pain that caused her to “tense up” so that she
could not do her usual household tasks. Accordingly, those tasks were generally
left undone.

[23]        
She said she continued to work because there was no other financial
option except to “tough it out.”

[24]        
She also said that after a few months of “toughing it out” and following
the advice of the doctor at the walk-in clinic, she went to see Dr. Brynjolfson.

[25]        
She testified that Dr. Brynjolfson followed the same routine as Dr.
Konkin had in examining and evaluating her. She said Dr. Brynjolfson
recommended a continuation of the exercise program and also gave her a sample
box of Robaxacet as well as samples of migraine medication.

[26]        
Ms. St. Germain further testified that she told Dr. Brynjolfson about
her symptoms each time she attended upon him after that first visit when she
saw him for other medical issues. She said that on those visits he usually provided
her with samples of pain relievers and muscle relaxants to help cope with her
back pain.

[27]        
As I will later discuss in more detail when considering Ms. St. Germain’s
credibility as a witness, Dr. Brynjolfson’s clinical records do not indicate
that Ms. St. Germain saw him about the injuries suffered in the
collision until January 22, 2010. That was at least 18 months later
than her testimony about when she first told him about the collision and the injuries
she suffered in it.

[28]        
In July of 2008, Ms. St. Germain underwent elective breast augmentation
surgery.

[29]        
In September of 2008, Ms. St. Germain again separated from her husband.

[30]        
Since then she has shared the parenting of her two sons on a rotating
weekly basis. In recent years her sons have begun to help with the household
tasks, including lawn mowing.

[31]        
Also in September of 2008, Ms. St. Germain decided to purchase a hair
salon to reduce the hours she would have to work so that she would not be as
affected by the pain of her injuries. She also saw the purchase as an
opportunity to profit and advance her career.

[32]        
After purchasing the business, she says she worked short shifts, closed
some days and cancelled appointments from time to time to accommodate the suffering
from her injuries. From time to time she also wore a back brace, given to her
by a friend, to attempt to minimize the pain associated with her work.

[33]        
Ms. St. Germain’s business venture was, however, not successful and she
eventually closed it in March of 2012.

[34]        
She primarily attributes the failure of the business to her physical
inability to work the hours needed to be successful but also admitted that her
lack of both business experience and acumen contributed to the failure.

[35]        
In order to ameliorate some of the financial hardship caused by her
unsuccessful hair styling business venture, Ms. St. Germain worked occasionally
in 2009 and early in 2010 as a private exotic dancer at Brandi’s Show Lounge,
usually working every second week. Her income from this was good, but sporadic,
and she has no intention of returning to that work.

[36]        
Ms. St. Germain now rents a chair in a styling salon and reports that
she makes little income from doing so after paying her expenses. She says she
will earn about $400 to $500 per month working part time. She believes that she
cannot work full time as a stylist because of the physical needs of the job. She
hopes to retrain in another field but has not made specific plans.

[37]        
Ms. St. Germain testified that she has continued to do the stretching
exercises recommended by Dr. Konkin and that they offer some relief but that she
still has days when she cannot get “off the couch” if she overdoes it.

[38]        
Ms. St. Germain has attended only two physiotherapy sessions since the
collision.

[39]        
The documentary evidence establishes that the first session was on January 20,
2009. She said she went there because the exercises “were not working.” She
also said she did not go back after that session because the treatment she
received caused her pain and a bad migraine. She then had no confidence in the
physiotherapist and did not return. She paid $50 for the session.

[40]        
Ms. St. Germain again went to physiotherapy in April of 2011 after a
referral from Dr. Brynjolfson. She paid $70 for an initial treatment and
was told that she would need to keep up a period of treatment of at least 12
sessions. At that session she was shown more exercises which she says she still
follows. She testified she did not follow up with the recommended additional
physiotherapy sessions because of the costs associated with them.

[41]        
Dr. N.K. Reebye, a specialist in Physical and Rehabilitative Medicine, assessed
Ms. St. Germain’s physical condition on September 9, 2011. On February 12,
2012, he delivered his report on her condition which was entered as an expert
opinion at trial. Dr. Reebye was cross-examined on that opinion.

[42]        
Dr. Reebye’s opinion is important because of the dearth of other medical
evidence available to assist in assessing the extent of Ms. St. Germain’s
injuries, as well as in determining the extent to which her present and past complaints
are causally connected to the soft tissue injuries that she suffered in the
collision.

[43]        
In his report concerning Ms. St. Germain’s future care needs, Dr.
Reebye wrote:

Diagnosis:

i.          The
most likely diagnosis to consider is that of soft tissue injuries as a result
of acceleration and deceleration type of forces to which Ms. St. Germain’s body
was subjected in the motor vehicle accident of April 16, 2008.

There is no
evidence by history, initial clinical examination and present examination to
suggest the presence of more severe injuries like torn muscles, damage to
ligaments, intervertebral discs, nerves, or nerve roots.

Injuries of the
type sustained by Ms. St. Germain heal in about six weeks, however, aches and
pains can be experienced for longer periods. Experience of pain is affected by
a number of factors, including physical, psychological and environmental
factors.

She is now
experiencing chronic myofascial pain i.e. pain which has lasted for more than
six months and affecting her muscles and other soft tissues.

ii.         She
also experiences headaches. She has a history of migraine headaches, in addition,
some of her headaches are likely from tightness in muscles at the back of her
neck.

Prognosis:

Clinical examination does not reveal any
abnormal physical findings of concern.

I do not anticipate permanent physical
impairments to occur as a result of injuries sustained by Ms. St. Germain in
the motor vehicle accident of April 16, 2008.

Her symptoms, in all likelihood, will
gradually improve over time rather than worsen over time with appropriate
management and a good balance of exercise and rest.

Permanent
disability.

I do not anticipate that Ms. St. Germain
will develop permanent physical impairments as a result of the injuries
sustained by her in the motor vehicle accident of April 16. 2008.

Recommendations with respect to future
treatment.

Ms. St. Germain did not follow much of
treatments soon after this motor vehicle accident and did not follow a proper
routine of treatments and exercises to help recover from her injuries.

She also became anxious and depressed, which
are common causes for prolongation of symptoms.

She will benefit with the use of
anti-depressant medications on a regular basis until her emotional problems are
under control.

She should avoid narcotic pain medications
and use non-narcotic [over-the-counter pain medications] off and on as needed.
The goal is to reduce the use of medications and depend more on
non-pharmacological control of pain in the long run.

She will benefit by brief attendance with a
physiotherapist to learn exercises for stretching, strengthening her muscles
and building up endurance.

She can thereafter continue doing the
exercises on her own.

Investigations.

No further investigations are required for
injuries sustained in the motor vehicle accident under consideration, both for purposes of diagnosis and for
treatments.

Need for
surgery in the future.

In my opinion, there are no clinical
indications for the need of surgery at present and no likelihood for the need
of surgery in the future for injuries sustained in the motor vehicle accident
of April 16, 2008.

Need for additional household help.

Ms. St. Germain is managing with her
day-to-day-activities with the help of her family.

No additional
household help is required for the patient in regard to the accident of April
16, 2008.

[44]        
In his testimony, Dr. Reebye also clarified that:

1)    In stating that
he did not anticipate “permanent physical impairments” to occur as a result of
the injuries sustained in the collision he was referring to impairments such as
loss of function, range of motion or strength; and

2)    The physiotherapy
program he recommended would last from 8 to 12 weeks with three sessions
per week at the start.

CREDIBILITY

[45]        
Before determining the appropriate amount of compensation for Ms. St.
Germain’s various damage claims, I must first address the issue of her credibility
as a witness.

[46]        
The defendant questions the veracity of her testimony and the validity
of her complaints about the injuries suffered in the collision, primarily
because of the lack of her reporting of any symptoms in Dr. Brynjolfson’s
clinical records.

[47]        
Counsel for the defendant also questions her evidence that she had not
taken Paxil as an anti-depressant before the accident when there is objective
evidence to the contrary. In addition, he suggests that Ms. St. Germain
minimized disciplinary issues that arose during her work for MegaHair before
the accident.

[48]        
The defendant submits that given those concerns with her credibility, I
should disbelieve her evidence about the severity of her injuries.

[49]        
I will now address each of the credibility concerns raised by the
defendant.

Absence of complaint in clinical records

[50]        
In Edmonson v. Payer, 2011 BCSC 118 at para. 36, N. Smith J.
stated:

[36] While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything. For example, the absence of reference to
a symptom in a doctor’s notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom. At
most, it indicates only that it was not the focus of discussion on that
occasion.

[51]        
The evidence has established that Dr. Brynjolfson is at best a
disorganized note-taker. I do not accept that his lack of note-taking should
lead me to conclude that Ms. St. Germain did not see him about the accident
until January of 2010.

[52]        
In that regard, I also note that Dr. Brynjolfson stated that it was his
practice to keep separate patient files for motor vehicle injuries. He
obviously failed to do that in this case because Ms. St. Germain did
not fill out a form to initiate such a file until March of 2011, more than a
year after her recorded January 2010 visit about the collision.

[53]        
I accept that Ms. St. Germain did raise the issue of the accident with
Dr. Brynjolfson a few months after the collision as she said she did, and
that Dr. Brynjolfson advised her to continue the exercises recommended by
Dr. Konkin. I also accept that he provided her with samples of Robaxacet and
migraine medication at the first visit as well as thereafter from time to time on
other visits to his office for unrelated medical issues.

Anxiety and depression before the collision of April 2009

[54]        
I am troubled by Ms. St. Germain’s evidence in examination in chief that
she did not suffer from anxiety or depression before the accident, as well as
her assertion under cross-examination that she had never taken Paxil. The
clinical records of Dr. Mosher, whom she consulted in May of 2008
concerning breast augmentation surgery, indicate that she told Dr. Mosher at
that time that she had “been on Paxil for 6 to 12 months.”

[55]        
I am, however, not prepared to find that Ms. St. Germain was
deliberately untruthful on these issues because I am satisfied that she is very
bad at recalling specific dates, and because she admitted in examination in
chief that in the years leading up to the accident she had “not been herself” due
to the stresses in her life.

[56]        
In those circumstances I am not prepared to find that reference to a
specific medication in a 4-year-old report should lead me to conclude that she
was intending to deceive in her testimony at trial.

Minimization of disciplinary issues

[57]        
I also do not find that Ms. St. Germain was dishonest in her recall of
her employment performance at MegaHair. She admitted to some difficulty arising
from being late for work on occasion and for her dress, but stated that she did
not believe her job was in jeopardy.

[58]        
While it is possible to interpret the MegaHair work records as relating
to more serious performance issues I am not prepared to reach that conclusion
on the basis of the records alone. If the defendant had wanted to refute her
testimony about her performance at MegaHair, it was open for the defendant to
call that evidence.

Conclusion

[59]        
After having considered all of the evidence and the submissions of
counsel, I have concluded Ms. St. Germain was a generally credible witness
whose testimony was, for the most part, consistent and credible both in direct
and cross-examination.

[60]        
I specifically do not find that she was being deceitful about the pain
she has suffered or the medical attention she has received for it and, as
noted, I accept her testimony about her reporting of the accident to Dr.
Brynjolfson a few months following the collision, as well as his involvement in
providing sample medication to her then, as well as later, to assist in coping
with pain and migraine headaches.

[61]        
I do, however, find that Ms. St. Germain’s evidence seriously suffers
from lack of specificity with respect to the extent of the injuries she says
she has suffered, as well as concerning the progress of her symptoms over time.

[62]        
She tended to answer even the most direct questions about specific time
periods by reference to the whole of the time since the collision, rather than to
the time in issue.

[63]        
That lack of specificity and the absence of clinical records that might
assist her to recall what was happening from time to time, as well as the
sameness of her complaints, makes it very difficult to assess whether her
injuries have always been as all-consuming as she states or, as she also
testified, have been subject to “flaring up” from time to time because of overwork
or exertion.

[64]        
Also, while I am satisfied that Ms. St. Germain did not intentionally
exaggerate the effects of her injuries on her life and her ability to work, I do
find that she tended to link all of her problems in the four years since the
accident to the low back pain she has suffered when, in reality, she faced many
other unrelated personal and financial issues that impacted her overall health
and well-being. She also tended to downplay any health or stress issues
unrelated to the effects of the collision.

[65]        
Further, while I have not found that Ms. St. Germain deliberately sought
to conceal the fact of her anxiety and depression at the time of the accident,
her failure to recognize or appreciate that she had such difficulties before
the accident underscores the extent to which she now subjectively attributes
all of her difficulties to the back injury suffered in the collision in April
of 2008.

[66]        
Similarly, while she now attributes an increase in the frequency of
migraine headaches to tenseness in her back and shoulders because of her
compensating for her low back pain, there is little medical support for that
proposition. Although Dr. Reebye suggests that “some of her headaches are
likely from tightness in the muscles at the back of her neck,” he does not link
that tightness to the lower back injury caused by the collision.

ASSESSMENT OF DAMAGES

[67]        
The assessment of damages in this case is difficult because of the
paucity of objective evidence to verify that Ms. St. Germain has suffered as
greatly as she says she has in the four years since the accident.

[68]        
It is made more difficult by her attribution of most, if not all, of her
past and present problems to the collision, without acknowledging the impact or
contribution of pre-existing anxiety and stress, marital discord and financial
difficulties, as well as unrelated health issues upon her well-being.

[69]        
While I am satisfied that Ms. St. Germain honestly believes that the
accident and the resulting low back injury have caused all of her problems,
there is little independent evidence to support her beliefs.

[70]        
In all of those circumstances I must approach the assessment of damages
with caution to ensure that she is compensated only for the injuries inflicted
upon her by the defendant and the resulting consequences. See: Price v.
Kostryba (1982), 70 B.C.L.R. 397 at p. 399.

1)       Non-pecuniary damages

[71]        
The purpose of non-pecuniary damages in personal injury cases is to
compensate the injured party for their pain and suffering, loss of enjoyment of
life, and loss of enjoyment of amenities caused by the fault of a wrongdoer.

[72]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
set out a useful non-exhaustive list of factors that offer guidance as to what
may influence an award of non-pecuniary damages. The list included the:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life.

[73]        
Kirkpatrick J.A. went on to say:

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

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

[74]        
Counsel for the defendant submits that Ms. St. Germain’s failure to
obtain treatment immediately after the first visit to the walk-in clinic and
her failure to diligently pursue treatment should lead me to conclude that her
injuries are minor and exaggerated. He submits that non-pecuniary damages in
the range of $6,000 to $12,000 would be appropriate.

[75]        
Counsel for Ms. St. Germain asserts that although it is limited, the
medical evidence supports her evidence of the suffering she has endured and
continues to endure. He says she is a stoical plaintiff who has “toughed it
out” and should not be penalized for that or for the lack of medical assistance
she has received.

[76]        
He points to the length of time over which pain has continued, the
debilitating nature of that pain on her ability to enjoy the active lifestyle
she previously enjoyed, and the uncertainty of her future in continuing to try
to cope with the effects of what is now chronic pain. He also relies upon the
increase in the incidence of migraine headaches now being suffered. He suggests
that the appropriate range of compensation for her suffering and loss of
enjoyment of life would be from $30,000 to $50,000.

[77]        
I am satisfied that the defendant’s assertion of the appropriate range
places too much reliance upon the negative findings of credibility the
defendant urged upon me. I have found that Ms. St. Germain has suffered
significant lower back pain and that it has been persistent.

[78]        
I do not, however, accept that the pain and its effect upon her
enjoyment of life is as all encompassing as she asserts and I am also not
convinced on a balance of probabilities that any pain other than the low back
pain of which she initially complained was caused by the accident.

[79]        
To the extent that she complains of overall back soreness because of the
way she compensates for her low back pain, that complaint is not supported by
any evidence other than her own beliefs. While they may be sincerely held, I
also find that lack of treatment has exacerbated the situation. In reaching
that conclusion I refer to Dr. Reebye’s diagnosis and prognosis.

[80]        
In all of the circumstances I have concluded that an award of $35,000
will appropriately compensate Ms. St. Germain for her pain and suffering and
loss of enjoyment of life caused by the defendant’s negligence.

2)       Damages for past income loss

[81]        
Counsel for the defendant submits that Ms. St. Germain has not proven
any loss of past income from her work at MegaHair before she left to open her
own salon in September of 2008. He also submits that losses arising from the
failure of that business cannot be attributed to the defendant.

[82]        
Counsel for Ms. St. Germain submits that the efforts expended by Ms. St. Germain
at MegaHair to continue her employment without loss of income due to her
injuries should be attributed to her attempts to “tough it out,” and that she
should not be penalized for those efforts. He says further that the
continuation of her work efforts only delayed the income losses which she
eventually suffered when she could no longer continue to work.

[83]        
Ms. St. Germain testified that she is only capable of working three days
per week as a hair stylist due to the discomfort and pain associated with her
low back injuries which she says causes tenseness in her upper back and
shoulders.

[84]        
Ms. St. Germain submits that the purchase of her own business was a
reasonable attempt to mitigate her losses. While acknowledging that the
defendant is not responsible for the loss of that business, Mr. Kehler
submits that the defendant is still obligated to compensate her for those
income losses which she suffered before trial because of her inability to work
full time as a hair stylist due to her injuries.

[85]        
Charlotte Hayward, one of Ms. St. Germain’s still loyal hair stylist
clients, stated that she observed that Ms. St. Germain still appears to be in
pain and in need of rest while doing her tasks as a hairdresser. Ms. Hayward
also said that she considers Ms. St. Germain to be a talented stylist.

[86]        
Counsel for Ms. St. Germain submits that the totality of the evidence
supports a finding that Ms. St. Germain was approximately 40% disabled from
earning the amount of money she would have earned as a stylist but for the
injuries suffered in the collision. He submits that she should be compensated
on a yearly basis for 40% of the income she earned at MegaHair in 2007 ($18,546),
as an award for past income loss. Based on that analysis he suggests that an
award in the range of $30,000 for past loss of income for four years would
appropriately compensate Ms. St. Germain under this head of damages.

[87]        
I accept Ms. St. Germain’s evidence that she is presently only able to
work approximately three days per week as a hair stylist because of her back
pain and that to work more would exacerbate her pain.

[88]        
I also, however, find that other stresses in her life post-accident,
including the difficulties arising from her marital issues, as well as her
pre-existing issues with anxiety and stress, have contributed to her inability
to work full time.

[89]        
I further find that she failed to mitigate her losses of income by not
undertaking a treatment regime which would allow her to recover within a more reasonable
time from the injuries suffered by her in the collision.

[90]        
To some extent that failure of mitigation follows from her attempts to
“tough it out,” but it also follows in part from her lack of timely pursuit of
medical assistance and an unwillingness to expend funds on physiotherapy in
early 2009 as well as after being told she should do so both by the
physiotherapist she saw in April of 2011 and by Dr. Reebye in February of
2012.

[91]        
In saying that she did not pursue appropriate treatment I recognize that
neither Dr. Konkin nor Dr. Brynjolfson recommended physiotherapy at an early
stage, but the fact remains that Ms. St. Germain did not immediately attend on
Dr. Brynjolfson as recommended by Dr. Konkin.

[92]        
While I also appreciate that lack of available finances formed a part of
her decision to not follow up with physiotherapy, I am not persuaded that the
defendant should be held responsible for that decision, given her earlier
expenditure of funds on elective surgery and her later expenditure of funds on
vacations.

[93]        
In the totality of the circumstances I am satisfied that the evidence
establishes that Ms. St. Germain should be compensated for her past loss of
wages by an award in the amount of $15,000.

[94]        
I have determined that amount by utilizing a base income of 40% of
approximately $1,500 per month (based upon her proven income at MegaHair in
2007) for 45 months (from September 2008 to the date of trial in May of 2012)
being $27,000. From that amount I have deducted $12,000 to account for other
contributing causes for which the defendant is not responsible and also to
account for Ms. St. Germain’s failure to mitigate her losses.

3)       Damages for future loss of income earning capacity

[95]        
In Perren v. Lalari, 2010 BCCA 140, our Court of Appeal settled
the question of how claims for lost impaired earning capacity can be addressed.
After a long discussion and review of different approaches that had been
applied in past cases, Garson J.A. stated for the Court at para. 32:

[32] A plaintiff
must always prove, as was noted by Donald J.A. in Steward, by
Bauman J. in Chang, and by Tysoe J.A. in Romanchych, that
there is a real and substantial possibility of a future event leading to an
income loss. If the plaintiff discharges that burden of proof, then depending
upon the facts of the case, the plaintiff may prove the quantification of that
loss of earning capacity, either on an earnings approach, as in Steenblok,
or a capital asset approach, as in Brown. The former approach will be
more useful when the loss is more easily measurable, as it was in Steenblok.
The latter approach will be more useful when the loss is not as easily
measurable, as in Pallos and Romanchych. A plaintiff may indeed
be able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment. That was the
case in both Pallos and Parypa. But, as Donald J.A. said in Steward,
an inability to perform an occupation that is not a realistic alternative occupation
is not proof of a future loss.

[96]        
Counsel for the defendant submits that Ms. St. Germain has not proven
that the injuries she suffered in the collision have resulted in any impairment
of her future earning capacity. He submits that Dr. Reebye’s opinion that she
did not suffer any permanent physical impairment as a consequence of the
injuries incurred in the collision establishes that there is no real and substantial
possibility that the plaintiff will suffer any future income loss.

[97]        
Counsel for Ms. St. Germain submits that her present attempts to earn
income by renting a chair in a hair styling salon and her inability to work
full time establish far more than a substantial possibility that she will
suffer future income loss.

[98]        
He submits that since the evidence establishes that she is now earning
only about $400 to $500 per month from working as a hair stylist by renting a
chair and working to the extent that she can, she will suffer a loss of approximately
$12,000 to $14,000 per year from what she earned at MegaHair while able to work
full time.

[99]        
He also submits that retraining is an option and suggests that an award
to compensate for one year of retraining and one year for a job search would
appropriately compensate her for her loss of future earning capacity. He
suggests that an appropriate amount for her future loss of income earning
capacity is from $10,000 to $20,000.

[100]     I am
satisfied that the evidence establishes a real and substantial possibility that
Ms. St. Germain’s future earning capacity will be affected by the injuries
suffered in the collision. I do not read Dr. Reebye’s report as precluding such
compensation.

[101]     In his
evidence, Dr. Reebye stated that a physiotherapy program of from 8 to 12 weeks
should aid in her recovery. In my view, undertaking such a course of treatment
will offer Ms. St. Germain better future security of income than possible retraining
in an unidentified field.

[102]     I do,
however, recognize that physiotherapy may not wholly ameliorate her
difficulties because they have been persistent for over four years.

[103]     However,
my concerns about her failure to mitigate her losses and the contribution of
her pre-accident condition and post-accident issues unrelated to the collision
must also be considered in determining the appropriate award for loss of future
earning capacity.

[104]     After
considering the totality of the circumstances and factoring in both negative
and positive contingencies, as well as issues relating to a delay in recovery
caused by failure to mitigate, I have concluded that an award of $15,000 will
appropriately compensate Ms. St. Germain for her loss of future earning
capacity arising from the defendant’s negligence.

4)       Loss of past and future housekeeping capacity

[105]     Counsel
for Ms. St. Germain submits that she should be awarded $5,000 for her past loss
of housekeeping capacity and between $10,000 and $20,000 for her future loss of
that capacity.

[106]     In making
that submission, Mr. Kehler relies on Ms. St. Germain’s evidence about her
inability to do her usual household tasks in the months following the collision
because of the pain and discomfort she suffered from low back pain and her
overall tiredness from working though that pain at MegaHair.

[107]     He also
relies on Ms. St. Germain’s evidence that although she is now able to do more
housework than before, she requires assistance from her sons who are now older
and able to offer more assistance than they did in the past. Mr. Kehler also
points to some assistance provided by her husband in doing her previous
household chores in the months after the collision before their eventual
separation in September of 2008.

[108]     In support
of her claim for future loss of housekeeping capacity, Ms. St. Germain relies
upon her evidence that she has recently hired a young person to help her with
some household tasks for three hours every 2 to 3 weeks at a cost of $15
per hour. The household tasks performed for Ms. St. Germain include
vacuuming, washing floors, dusting and bathroom cleaning.

[109]     Ms. St.
Germain believes that she will continue to need that assistance.

[110]     Her
counsel submits that given the length of time for which the injuries she
suffered in the collision have persisted, the costs of that housekeeping
assistance support the award sought of from $10,000 to $20,000 to compensate
for her continuing and future loss of capacity.

[111]     Counsel
for the defendant submits that Ms. St. Germain’s lack of treatment following
the collision is indicative of a very minor injury that resolved shortly after
the collision so that no compensation should be paid for either past or future
lost earning capacity.

[112]    
McTavish v. MacGillivray, 2000 BCCA 164 [McTavish] at
para. 43, establishes that:

[43] As I have noted, the
majority in Kroeker quite clearly decided that a reasonable award
for the loss of the capacity to do housework was appropriate whether that loss
occurred before or after trial. It was, in my view, equally clear that it
mattered not whether replacement services had been or would be hired. It did
not adopt the analogy with future care as a general rule. Nor did it permit,
nor in view of the authorities to which I have referred could it have
permitted, a deduction for the contingency that replacement services might not
be hired. Allowances for contingencies are for risk factors that might make the
loss of capacity more or less likely.

[113]     McTavish
also affirms at para. 28 that the opportunity cost of a service provided even
if not incurred will often be a useful measure valuation for past and future
loss of housekeeping capacity.

[114]    
Further, in McTavish at para. 46, Huddart J.A. observed that:

[46] In sum, the possibility that
the respondent may not hire someone to perform the household duties does not
constitute a contingency of which account must be taken on the principles set
down in Athey v. Leonati, supra. A plaintiff need not
prove she will hire someone to perform household tasks in order to be fully
compensated for the loss of her ability to do the work herself.

[115]     Other than
the plaintiff’s own testimony, the only evidence led about her inability to
perform the household tasks she previously performed is that of Dr. Reebye.

[116]    
As quoted above, on that issue he stated:

Ms. St. Germain is managing with her day-to-day activities
with the help of her family.

No additional help is required
for the patient in regard to the accident of April 16, 2008.

[117]     I accept
Ms. St. Germain’s evidence that in the months following the collision up until
the time that she acquired her own business, she was unable to perform her
usual household tasks and was either assisted by her husband (and to a lesser
extent by her children) or the tasks went undone.

[118]     Dr.
Reebye’s report supports a finding of Ms. St. Germain having suffered some
lack of housekeeping capacity as of February 2012.

[119]     His
opinion also supports a continuation of some family assistance into the future
but does not support Ms. St. Germain’s present retainer of a housekeeper to
assist her.

[120]     In all of
the circumstances I am satisfied that an amount of $3,000 will appropriately
compensate Ms. St. Germain for her past loss of housekeeping capacity caused by
the defendant’s negligence.

[121]     As to her claim
for future loss of housekeeping capacity, I recognize that undertaking
physiotherapy may not wholly ameliorate her difficulties. However, my concerns
about her failure to mitigate her losses and the contribution of both pre- and
post-accident conditions and issues unrelated to the collision must also be
addressed.

[122]     After
considering the totality of the circumstances and factoring in both negative
and positive contingencies, I have concluded that an award of $3,000 will
appropriately compensate Ms. St. Germain for her loss of future housekeeping
capacity arising from the defendant’s negligence.

5)       Cost of future care

[123]     Dr.
Reebye’s opinion supports an award for costs of future care so that Ms. St.
Germain can undertake the course of physiotherapy she ought to have taken much
earlier to alleviate the difficulties she has experienced since the collision.

[124]     In his
evidence he suggested a course of treatment of from 8 to 12 weeks with at least
three treatments per week to start. The evidence establishes that the cost of
physiotherapy will likely be $70 per session.

[125]     In all of
the circumstances I am satisfied that the plaintiff has established entitlement
to an award of $2,000 for the costs of her future care necessitated due to the
defendant’s negligence.

SUMMARY OF AWARDS

[126]     Ms. St.
Germain has established entitlement to the following damage awards:

1)    Non-pecuniary
damages for loss of enjoyment of life: $35,000;

2)    Damages for past
loss of income: $15,000;

3)    Damages for
future loss of income earning capacity: $15,000;

4)    Damages for loss
of past and future homemaking capacity: $6,000

5)    Damages for the
cost of her future care: $2,000.

TOTAL: $73,000

COSTS

[127]    
Unless there are matters of which I am unaware, Ms. St. Germain will
have her costs throughout on Scale B.

“Davies
J.”