IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120730

Docket: 43603

Registry:
Kamloops

Between:

Caitlin Kenna
Cartwright, an infant by her Litigation Guardian, Stuart Cartwright, and the
said Stuart Cartwright

Plaintiff

And

Cody Philip
Cartwright

Defendant

Before:
The Honourable Justice Fisher

Reasons for Judgment

[1]            
On June 17, 2007, the plaintiff, Caitlin Cartwright, was injured in a
single vehicle accident on the Coquihalla Highway near Hope, BC. Ms. Cartwright
was a passenger in the front seat, her parents were in the back, and her
brother – the defendant Cody Cartwright – was driving. The car went off the
road, down an embankment, and stopped in a cluster of small trees.

[2]            
Liability was admitted. The issues for determination are the quantum of
damages to which Ms. Cartwright is entitled. She claims non-pecuniary damages,
past and future loss of income, cost of future care, loss of housekeeping
capacity, and special damages, for soft tissue injuries to her neck and back
with ongoing, chronic back pain.

The plaintiff’s evidence

[3]            
Ms. Cartwright was 15 years old at the time of the accident. The family
was returning to Kamloops from a visit on the coast. She testified that she was
asleep in the front passenger’s seat when she heard her brother screaming,
opened her eyes, and saw that the car was going off the highway. She put a
blanket over her face and heard trees and branches breaking and glass
shattering. When the vehicle came to a stop, everyone was able to get out. Unable
to open the passenger front door, Ms. Cartwright had to climb out another door.
Photographs of the vehicle in its position off the highway show extensive
damage, particularly to the front end of the car.

[4]            
Ms. Cartwright said that she was sore, so she went up the embankment to
sit at the side of the road. Eventually an ambulance took her to the hospital
in Hope, where she stayed for about two hours. She said that her neck and
shoulders were sore and her back was stiff. A few days later, she went to see
her family doctor, Dr. Schumacher. At that time she was sore, with neck pain
and pain all the way down her back. She was given some medication for the pain.

[5]            
In June 2007, Ms. Cartwright was finishing grade 10 and was working part
time as a hostess at Storms Restaurant in Kamloops. She went back to school the
day following the accident and went back to work the following week. She
continued to work about four shifts per week throughout the summer. She said
that it was painful for her and she was not able to do things like move tables
and chairs and lift trays of cutlery. Throughout the summer, she went to
massage therapy twice a week and once saw a chiropractor.

[6]            
Ms. Cartwright did not continue working after September 2007. She said
that she wanted to focus on her school work and the load was too much for her. She
missed quite a few days of school that year, due, she said, to her back pain. Despite
this, she did well in grade 11, earning an overall academic average of 84.4. In
March 2008, she went to Italy on a school trip. She had some difficulty participating
in all the activities and one time a teacher carried her back from a tour
because she was in “excruciating” pain. In the summer of 2008 Ms. Cartwright
went on a two week trip to Guatemala to do some volunteer work at a school. She
said that she had some difficulty being in a vehicle and walking, did not
participate in soccer games, but was otherwise involved. She did not work that
summer as she wanted to focus on getting her back better.

[7]            
In the year following September 2007, Ms. Cartwright had nine massage
and seven chiropractic treatments. She saw Dr. Schumacher about six times for
her back pain. He referred her to other specialists. She was prescribed pain
medication from time to time. All of the treatments she had gave her only temporary
relief.

[8]            
In September 2008, Ms. Cartwright saw a personal trainer, who gave her
an exercise program. She did this for two months but modified it to avoid
impact on her back. In early 2009, she began seeing a new family doctor, Dr.
Ruth Farren. In March 2009, she went twice weekly to a physiotherapist in
Kelowna for acupuncture and intra muscular stimulation (IMS) treatments. The
IMS treatments caused pain in her right leg.

[9]            
Ms. Cartwright completed grade 12 in January 2009, achieving “A” marks
in all her academic subjects. She planned to apply to take online courses at
Thompson River University. However, in April she learned that she was pregnant.
That, in addition to several other personal matters, was stressful. She saw a
counsellor a few times for anxiety. She decided to go back to work and in early
May returned to her hostess position at Storms. She said that school was not an
option due to her pregnancy and she needed to sort out her life. In July, she
also worked as a babysitter for two young boys. She continued working at Storms
until the end of September 2009, when she was advised to stop due to
complications with her pregnancy. In December 2009 she gave birth to a healthy
baby girl.

[10]        
After that, Ms. Cartwright made her application to the university, enrolling
in two online courses and completing them in October 2010. She enrolled in two
more courses in January 2011 and completed those in July.

[11]        
In March 2011, Ms. Cartwright decided to try working again. She went
back to Storms but said that she found it very difficult due to back pain, and
left again in May. Since then, she has been focussing on getting healthy
physically and emotionally. She does yoga, stretching and swimming on her own. In
March 2012, she went to the Welcome Back MRI and Pain Management Centre, where
she saw a team of professionals including Dr. Richard Brownlee, a neurosurgeon.

[12]        
Today, Ms. Cartwright continues to have pain in her neck, back and
gluteus muscles as well as anxiety towards vehicles. She also has headaches. She
said that she had headaches “off and on” before the accident – sometimes
migraines – but says that these increased after; she now gets headaches two to
three times a week and migraines about two times a month.

Medical evidence

[13]        
All of the physicians who testified saw Ms. Cartwright long after the
accident.

[14]        
Dr. Farren, her current family doctor, first saw her in January 2009 and
has continued to see her for various issues since then. However, she has had
little to do with treating Ms. Cartwright’s back pain, as referrals to other
specialists had been made before 2009. She said that she was aware that Ms.
Cartwright was trying “all sorts of therapies”, and she agreed that one of the
recommended treatments was for Ms. Cartwright to get active. In February 2010,
she recommended a water based therapy program, partly for conditioning after
pregnancy. Dr. Farren described Ms. Cartwright’s injury as “moderate in
severity and chronic in nature”, relying on Ms. Cartwright’s subjective reports
of her pain symptoms as well as previous medical records.

[15]        
Dr. Brownlee is a neurosurgeon who practices in Kamloops and owns the
Welcome Back Centre. This is a private, interdisciplinary clinic that provides
non-surgical treatment for people with a variety of pain conditions. He saw Ms.
Cartwright at the clinic on March 8, 2012. His examination showed her to be “a
generally fit and healthy looking young woman”. She had full range of motion of
her head, neck, lumbar spine and hips and normal strength in her arms and legs.
However, she had discomfort in her neck and upper back with neck flexion, a
decrease in touch sensation on her right lower leg and top of her foot, pain
and numbness in her right leg with straight leg raising, and localized
tenderness in the lower neck and upper back in the midline and lumbosacral
region.

[16]        
Dr. Brownlee’s clinical impression was that Ms. Cartwright developed a
chronic myofascial pain condition as a result of the motor vehicle accident and
this is responsible for the pain she experiences throughout her spine. He was
also of the opinion that the accident caused her tension headaches and
exacerbated her pre-existing migraine headaches. He did not think that the
right leg pain was related to the accident, as it started long after it. He
noted that there was a significant emotional or psychological component to her
chronic pain that was still unresolved, but he relied on the opinions of others
on this issue.

[17]        
Dr. Brownlee’s prognosis was that Ms. Cartwright would continue to
experience pain in the future, as it had been present since June 2007. He
opined that this ongoing pain would continue to limit her recreational and
employment related activities but that the symptoms will improve with
appropriate therapy. He could not state how much she would improve, but recommended
that she be reassessed in 12 to 18 months. He recommended a structured
rehabilitation program incorporating both physical and psychological components,
including physiotherapy, massage therapy, chiropractic treatment, a supervised
exercise program, nutritional counselling, and various types of psychological
treatment.

[18]        
Dr. Duncan Laidlow is a physical medicine and rehabilitation specialist.
He examined Ms. Cartwright on March 2, 2011 at the request of counsel for the
defendant. He noted that she had full range of movement in her neck, mid and
lower back but had tightness in the shoulder and gluteal muscular areas. Her
complaints at that time were pain through the entire back, numbness in the
right leg more than the left leg, migraine headaches, and difficulty sleeping. His
diagnosis was musculoligamentous strain to the thoracic and lumbar region
(Whiplash associated Disorder Type II), and muscular strain to the cervical
spine. This latter strain caused her headaches and aggravated her pre-existing
tendency for migraines. He thought that the leg numbness was related to muscle
tightness in the gluteal region.

[19]        
Dr. Laidlow was of the view that Ms. Cartwright’s program of
rehabilitation had been too passive and as a result she continued to have
muscle tightness in the upper shoulder and lower back and gluteal areas. This
muscle tightness, he said, is the cause of her ongoing “mechanical” pain. He
recommended a regular, daily exercise program involving muscle warm up,
strengthening and stretching, which would allow her to gain flexibility and be less
prone to mechanical pain. Since Ms. Cartwright still had pain this long after
the accident, Dr. Laidlow’s prognosis was that she would likely still
experience some muscular discomfort in the mid and lower back in the time to
come (but this is more likely to be present with unaccustomed activity), and she
would find it more difficult to be in any one position for long periods of
time.

The injuries

[20]        
There is no question that Ms. Cartwright suffered soft tissue injuries
to her neck and back in the motor vehicle accident on June 17, 2007, which
resulted in ongoing pain symptoms. She had pain immediately following the
accident and has continued to have pain throughout her back since that time.
The issue is the extent to which this ongoing pain has affected and will
continue to affect her life.

[21]        
The defendant submits that Ms. Cartwright’s evidence about her symptoms
was vague and non-specific. She testified only that she had “back pain” and did
not articulate where the pain was and why she was unable to do various
activities. The facts on which Drs. Brownlee and Laidlow relied were more
specific, but little of this is reflected in her testimony.

[22]        
I found Ms. Cartwright to be a credible witness but a poor historian
about the nature and intensity of her pain symptoms and how they affected her
life and her work. I agree with the defendant that she provided little detail
about her symptoms. At the time of the accident, she said that her neck and
shoulders were “sore” and her back was “just stiff”. She said it was painful
working in that she had to rely on others to do things like move tables and
chairs and carry pallets of cutlery. Other than that, she described things as
being “difficult” or “painful”, and said that she was not able to work because
of “back pain.”  Surprisingly, she said nothing about the effect of her
pregnancy on her back pain. She said that she can get headaches two to three
times a week and migraines “at least a couple a month”, but said nothing about
how intense they are or how they affect her. She said that she went to a
counsellor “a few times for anxiety about the accident” and she still has
anxiety “towards vehicles” without describing in any way the anxiety and how it
affects her.

[23]        
This lack of any detail makes it difficult to assess the nature and
severity of Ms. Cartwright’s ongoing pain. However, I am satisfied that her
evidence, along with the medical evidence, establishes that she suffered strain
to the muscles and ligaments of the thoracic and lumbar regions and strain to
the muscles of the cervical region as a result of the accident. I accept Dr.
Farren’s description of Ms. Cartwright’s back pain as “moderate in severity and
chronic in nature”. There is no evidence about the severity and nature of her
headaches or the nature and extent of the anxiety she experienced as a result
of the accident.

[24]        
These injuries have caused her ongoing and chronic symptoms of
myofascial back pain, some tension headaches and a modest exacerbation of a pre-existing
tendency towards migraines. The chronic back pain will likely continue but there
is a substantial possibility that it will diminish with proper rehabilitation
that includes a regular exercise program.

Non-pecuniary damages

[25]        
An award for non-pecuniary damages is to compensate the plaintiff for
pain, suffering, loss of enjoyment of life and loss of amenities. Each award is
specific to the particular plaintiff and the circumstances of the case. An
award depends not only on the seriousness of the injury but also on its ability
to ameliorate the plaintiff’s condition considering her particular situation: Lindal
v Lindal, [1981] 2 SCR 629 at 637.

[26]        
Courts commonly take a number of factors into account when assessing
these damages, such as the age of the plaintiff; the nature of the injury; the
severity and duration of pain; the extent of any disability; the extent of
emotional suffering; and more generally, impairments to the plaintiff’s life,
such as impairments of family, marital and social relationships, physical and
mental abilities, and loss of lifestyle. A plaintiff should not be penalized if
she stoically returns to pre-accident activities while continuing to suffer
pain: Stapley v Hejslet, 2006 BCCA 34, leave to appeal to SCC refused,
No. 31373 (October 19, 2006).

[27]        
Ms. Cartwright was a very active teenager before the accident. She
played soccer and hockey, including competitive hockey, for many years. She was
involved in snowboarding, mountain biking and wakeboarding while at her
family’s cabin at Silver Star Mountain. Her father described her as “a really
fun loving, happy 15 year-old” who was “athletically gifted”. Her friend Olivia
Watt described her as “very energetic” and “always trying her hardest”. She was
in a dance program, was socially active, and worked as a hostess and babysitter.
Generally, she had no physical limitations. She also had good relationships
with her family. She and her brother were close.

[28]        
It is clear that Ms. Cartwright’s injuries and the chronic back pain
associated with those injuries has interfered with her enjoyment of life, but
it is not clear how much of this is self-limiting. Her evidence about this was as
similarly vague as her evidence about her injuries and the pain associated with
them. There was little evidence from the witnesses about observations of Ms.
Cartwright after the accident.

[29]        
After the accident, Ms. Cartwright did not participate in any of her
previous sports but there is little evidence about her efforts to resume any of
these activities. She testified that she had planned to try out for the high
school soccer team for the 2007-2008 year but did not. She said that she tried
to kick a soccer ball but running was too painful on her back, she tried two
runs snowboarding but there was too much pain, and she tried wakeboarding in
the summer of 2008 but the muscles she had to use in her back were sore and she
was afraid and did not try again. She said that she went to one school dance
after the accident but went home because she was sore. Olivia Watt’s evidence
about this dance was the same. Ms. Cartwright’s father said that she tried to
skate during the evaluations for the 2007-2008 hockey season but did not
continue.

[30]        
Ms. Cartwright did resume working as a hostess the week after the
accident, and continued working throughout the summer and to the end of
September 2007. During this time, she continued to have back pain, which
limited some of her work activities, and she went to massage therapy twice a
week, which gave her temporary relief. She left her job “because it was
difficult and painful to work and go to school” and she wanted to focus on her
school work. She was able to travel in 2008, although she had some limitations
due to ongoing back pain. She chose not to go back to work until May 2009, after
she had completed grade 12 and after she learned she was pregnant. She managed
to work as a hostess for almost five months while she was pregnant and during
the summer she also babysat two young boys. She left her hostess job only
because of advice from her doctor that was related to her pregnancy. Dana Ross,
a friend who worked with her in 2009, said that Ms. Cartwright struggled with
some of her tasks, such as carrying things, but still did them.

[31]        
Ms. Cartwright was also able to complete high school with excellent
grades. She said that she missed a significant amount of school due to back
pain, but the school records show that her absences were not inordinate and did
not affect her academic performance. She subsequently enrolled in
post-secondary courses online and had completed four courses by July 2011.

[32]        
She now has a 2 ½ year-old daughter and for the most part is able to care
for her, but has difficulty picking her up and doing more vigorous activities. She
also has difficulty with some housework. Her fiancé describes her as an amazing
mother.

[33]        
Ms. Cartwright submits that her life has been significantly affected in
all aspects: she has put her education on hold in order to try to find a way to
relieve her pain; she has experienced difficulties in her family relationships
arising from her brother’s behaviour about the accident; she can no longer
participate in many sports; and she cannot work at her previous employment as a
hostess.

[34]        
I will address this in relation to the relevant factors set out in Stapley.

Age of plaintiff

[35]        
Ms. Cartwright was injured at age 15 and is now a young woman of 20. An
injury at such a young age is significant.

The nature of the injury and the severity and nature of pain

[36]        
Ms. Cartwright suffered soft tissue injuries to her neck and back that
were moderate in severity. She has ongoing back pain that is chronic in nature.
She also has headaches, the severity and nature of which are not known.

Disability, impairment of life and loss of lifestyle

[37]        
Ms. Cartwright did not return to her pre-accident activity level due to
her back pain. She stopped playing soccer and hockey and she stopped
participating in sports at the family cabin. Although she planned to try out
for the high school soccer team, she said nothing about her plans for playing hockey.
Her counsel suggested that it is reasonable to infer from her pre-accident activity
that she would have continued to play hockey had she not been injured. This may
be so during her high school years, but whether she would have carried on with
hockey or other team sports after this is somewhat speculative. Her pregnancy
in 2009 clearly affected her level of activity, at least temporarily.

[38]        
Ms. Cartwright’s evidence about why she could no longer continue to work
as a hostess in 2011 was extremely vague. Although she had difficulty with some
of her duties before, she had managed to continue. I do not intend to penalize
her for her earlier return to work while continuing to suffer pain and I appreciate
that she may have been fed up with the pain. However, at that time she was not
taking active steps to participate in a comprehensive rehabilitation program. All
she did from June 2011 to about March 2012 was some yoga, swimming and
stretching on her own, and not on a frequent or regular basis. I infer from all
of her evidence that the pain was difficult but it was not of such intensity
that she was unable to work. There is no evidence that her regular duties as a
hostess were particularly onerous.

[39]        
Ms. Cartwright has not taken any post-secondary courses since July 2011.
She said only that for the last year she has been focussing on getting healthy
physically and emotionally. There is no evidence that she is not able to
continue with her education on a part time basis, as she was doing before.

[40]        
There is no evidence that her headaches have interfered with any
recreational, social or work related activities.

[41]        
Considering Ms. Cartwright’s evidence along with that of the medical
experts, I find that she has been moderately affected by her chronic back pain and
will continue to be mildly affected by it in the future as long as she participates
in a proper rehabilitation program that focuses on physical exercise. She has
not been, and will not be, totally disabled from recreational, home and work
related activities. I find that she has self-limited many of her post-accident
activities for fear of experiencing more pain. The medical experts were
unanimous in their opinions that Ms. Cartwright is able to improve her quality
of life with an appropriate rehabilitation program that includes regular
physical exercise. Dr. Brownlee explained that one of the things he does is
reassure patients that increased activity may cause pain but it will not cause
more injury or damage. Dr. Laidlow was quite adamant that a proper exercise program
is the only way to reduce chronic pain and improve function.

Emotional suffering

[42]        
Ms. Cartwright testified that she had anxiety on and off throughout her
life but after the accident she could not get into a vehicle without having a
panic attack. Other than that, there is no evidence about anxiety or other
emotional suffering other than the impairment of some family relationships,
which I address below. I find this statement about panic attacks difficult to
accept given Ms. Cartwright’s evidence that she obtained her Learner’s permit when
she turned 16 in December 2007 and went on to obtain her driver’s licence in
November 2008.

Impairment of relationships

[43]        
Ms. Cartwright’s family relationships were affected to some extent by
the accident. The dynamics arising from the fact that her brother was driving
the car were difficult, as she alleges that her brother initially lied to the
insurer about what caused him to drive off the road. This issue, which was
eventually addressed, was subsequently subsumed by other issues, particularly
Ms. Cartwright’s pregnancy in 2009. While it is not possible to untangle the
issues that caused Ms. Cartwright’s family relationships to suffer, I accept that
some of them related to the family dynamic of this accident. Her relationship
with her brother has since improved.

Assessment

[44]        
 Ms. Cartwright’s counsel submits that an appropriate award for
non-pecuniary damages is $100,000. He referred to a number of cases where
awards ranged from $60,000 to $125,000: Burke v Artz, 2011 BCSC 850; Gregory
v Insurance Corp. of British Columbia, 2010 BCSC 352, varied (on other
issues) 2011 BCCA 144; MacKenzie v Rogalasky, 2011 BCSC 54; Morlan v
Barrett, 2012 BCCA 66; Pett v Pett, 2009 BCCA 232 and Thauli v
Gill, 2009 BCSC 1929.

[45]        
Some of these cases involved injuries of a more severe and long-lasting
nature and effect than this case. In Burke, ($81,000), the plaintiff
suffered from post traumatic stress disorder (PTSD), depression, anxiety,
headaches, and pain in the neck, face and jaw. The PTSD was substantially
resolved at trial but the plaintiff continued to have ongoing depression and
anxiety; the headaches and pain were controlled by medication and treatment but
the symptoms were ongoing and permanent. There was also considerable evidence about
the negative effect of the injuries on the plaintiff. The award took into
account a pre-existing emotional condition. In Morlan ($125,000), the
plaintiff was diagnosed with chronic pain and fibromyalgia, with a substantial
possibility that it would get worse in the future. These injuries were found to
have robbed the plaintiff of her energy and left her unable to do much of what
she did before. Pett ($85,000) involved a young plaintiff who had
suffered a concussion, an injured shoulder and a very painful back. While the
head and shoulder injury resolved, the back injury did not and it left him with
a “somewhat disabling back condition” that had a negative impact on his
recreational and employment activities. In Gregory ($60,000), the
plaintiff had ongoing chronic pain in her shoulder which was exacerbated by
certain movements. She was likely to continue to suffer various degrees of pain
in the future and was mildly restricted in her activities. In Thauli
($50,000) the plaintiff had chronic myofascial pain that had largely moderated and
the judge found that there was a fair chance it would continue to improve, if
not wholly, at least be well within the plaintiff’s control.

[46]        
While each case depends on the effect of injuries on a particular
plaintiff, I found Pett, Gregory and Thauli more helpful than the
other cases.

[47]        
The defendant’s counsel submits that an award of $35,000 is appropriate
considering the evidence in this case. She relied on Bjarnason v Parks, 2009
BCSC 48; Bradley v Groves, 2009 BCSC 1882, aff’d 2010 BCCA 361, leave to
appeal to SCC denied, No. 33886 (April 14, 2011); Chan v Lee, 2008 BCSC
594, and Guilbault v Purser, 2009 BCSC 188. In all of these cases, the injuries
had largely resolved at the time of trial or the prognosis for recovery was
positive. My view is that an award in the $35,000 range is too low in the
circumstances here, where Ms. Cartwright continues to suffer myofascial back
pain that interferes with her enjoyment of life.

[48]        
Ms. Cartwright has been moderately affected by her chronic back pain and
will continue to be affected by it in the future, but there is a substantial
possibility that the pain will diminish and be quite manageable with proper rehabilitation
and regular exercise. Given the evidence and relevant factors in this case, it
is my view that a fair award of non-pecuniary damages is $60,000.

Past wage loss

[49]        
Ms. Cartwright claims past wage loss of $7,137. This is based on her
inability to continue working at Storms restaurant on a part-time basis
throughout her grade 11 and grade 12 school terms, as well as in February and
March 2009 after she finished her grade 12 courses. Her counsel estimated her
part-time wages at $425 per month and full-time wages at $700, taking into
account an hourly rate of $8 and the average tips earned.

[50]        
The defendant submits that Ms. Cartwright has failed to prove any past
wage loss other than a nominal amount of $200 for her loss of work in the week
following the accident.

[51]        
Ms. Cartwright testified that she started working at Storms in the
summer of 2006 and continued working there part-time during grade 10. She
testified that she decided to leave this job in September 2007 because “it was
very difficult and painful to work and go to school” and she wanted to focus on
school. She had not done well in grade 10 and wanted to improve her performance.
While there was no evidence from her employer that a part-time job would have been
available to her during the school year, she had established a record of
working part-time in the previous school year and continuing throughout the
summer, and there is no evidence to suggest that she could not have continued
to work during the 2007-2008 school year. And while her reason for quitting her
job was partly related to her desire to focus on school, a significant
consideration was her ability to cope with her back pain.

[52]        
I am satisfied that Ms. Cartwright is entitled to past wage loss for the
2007-2008 school year in addition to the week following the accident in June
2007. However, I am not satisfied that she has proved an entitlement to past
wage loss for any other period of time before trial.

[53]        
Ms. Cartwright did not return to work at Storms until May 2009, after
she had finished grade 12 and after she learned that she was pregnant. She
decided not to work in the summer of 2008 and said only that she did not work
in the 2008-2009 school year “because of my back pain”. There is no evidence that
she would have had a job during those times, and even if I inferred that she
would likely have been hired, her evidence about why she decided not to work
during the 2008-2009 year is simply too vague and she said nothing about
intending to work in February and March 2009.

[54]        
Accordingly, Ms. Cartwright is entitled to past wage loss in the amount
of $3,387.

Future loss of earning capacity

[55]        
Ms. Cartwright testified that she has always wanted to be a kindergarten
teacher. This remains her goal, except that she will consider teaching older
students in order to accommodate her back pain. Her counsel submits that she
has suffered a loss of future earning capacity in that she now has to target
employers who are prepared to accommodate her physical needs and there are
areas within teaching that are no longer open to her.

[56]        
The defendant submits that Ms. Cartwright has not proven that she will
suffer such a loss. Counsel relies on the opinion of Dr. Laidlow that Ms.
Cartwright is capable of working as an elementary school teacher and a similar
opinion of Dr. Brownlee, except that Dr. Brownlee was of the view that some
modifications would be required.

[57]        
Hypothetical and future events – how the plaintiff’s life would have
gone without the tortious injury – need not be proven on a balance of
probabilities. They are given weight according to their relative likelihood, or
the probability of their occurrence. A future or hypothetical possibility is to
be taken into account “as long as it is a real and substantial possibility and
not mere speculation”: Athey v Leonati, [1996] 3 SCR 458, at para. 27.

[58]        
The court must first determine whether there is a substantial
possibility of a future loss of capacity to earn income. There must be an inability
to perform an occupation that is a realistic occupation for the particular
plaintiff: Perren v Lalari, 2010 BCCA 140.

[59]        
If this has been proven, the quantification of that loss of earning
capacity may be done on either an earnings approach or a capital asset approach.
The earnings approach will be more useful when the loss is more easily
measurable, such as where the plaintiff has a work history. The capital asset
approach will be more useful when the loss is not as easily measurable, such as
where the plaintiff is young and has not yet established a work history: Perrin,
at para 32. Either way, it is well recognized that unknown contingencies
and uncertain factors make it impossible to calculate a loss of future earning
capacity with precision. The loss is assessed on the basis of the evidence,
taking into account all relevant positive and negative contingencies: Rosvold
v Dunlop, 2001 BCCA 1.

[60]        
The factors to consider in the capital asset approach were described in Brown
v Golaiy, [1985] BCJ No. 31 (SC) (at para. 8):

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. the plaintiff is less marketable
or attractive as an employee to potential employers;

3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. the plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[61]        
Ms. Cartwright adduced in evidence a report from Ms. Jodi Webster, a
vocational consultant. Ms. Webster assessed Ms. Cartwright’s aptitudes using
the General Aptitude Test Battery (GATB). Considering her overall academic
achievement results, which were average, as well as her physical needs, Ms.
Webster concluded that Ms. Cartwright would be suited to an occupation
associated with a course of study of up to two years and recommended a career in
early childhood education or teacher’s assistant. She opined that Ms.
Cartwright may need to target specific groups of children and specific teaching
environments to ensure that her physical limitations can be accommodated.

[62]        
Both Ms. Cartwright and the defendant submit that the opinion evidence
of Drs. Laidlow and Brownlee on this issue should be preferred over that of Ms.
Webster, to the effect that Ms. Cartwright remains capable of becoming an
elementary school teacher. However, Ms. Cartwright submits that Ms. Webster’s
opinion that she may have to target specific teaching environments and children
should be accepted. It is consistent with Dr. Brownlee’s opinion, and Dr.
Laidlow acknowledged that teaching may be different in different environments
and different age groups.

[63]        
Given Ms. Cartwright’s strong academic performance in high school, the
results of the GATB given by Ms. Webster are surprising. Ms. Cartwright struck
me as an intelligent young woman who is capable of completing a degree in
education and obtaining a teaching certificate. On this point, I agree with Dr.
Laidlow and Dr. Brownlee. I also agree with Dr. Brownlee and Ms. Webster that
Ms. Cartwright may have to target specific age groups and specific teaching
environments to accommodate her back pain. However, I would not consider this
to be a significant impediment due to the substantial possibility that her chronic
pain will be reduced over time if she completes a proper rehabilitation program
and maintains a regular exercise regime.

[64]        
Ms. Cartwright will also be delayed in reaching her goal; although her
chronic pain is only part of the reason for this (her pregnancy and child rearing
responsibilities being another major reason).

[65]        
I find that Ms. Cartwright has established that there is a substantial
possibility that she will suffer a future loss of earning capacity, but I do
not consider this loss to be that significant given the corresponding
possibility that her chronic pain will improve with appropriate treatment. In
assessing this loss, a capital asset approach is necessary since Ms. Cartwright
has little work history and is only at the beginning of her post-secondary
education. Whether or not she achieves her goal of becoming an elementary
school teacher, she has been rendered somewhat less marketable as an employee
and may find her career choices to be more limited than before.

[66]        
 Ms. Cartwright’s counsel referred me to a number of cases where awards
for future loss of earning capacity ranged from $30,000 to $150,000: Shnare
v Roberts, 2009 BCSC 397; Ayles (Guardian of) v Talastasin, 2000
BCCA 87; Sinnott v Boggs, 2007 BCCA 267; Romanchych v Vallianatos,
2010 BCCA 20. He submits that in this case, an appropriate award would be
$80,000. He suggested that one rationale for this amount is to consider a 1 ½
year delay in Ms. Cartwright achieving her goal to complete her education and
teacher training, using the starting salary of a teacher in the BC school
system (just under $50,000) as a guide.

[67]        
An award at the high end ($125,000) was given in Shnare, where
the plaintiff had been an elementary school teacher for close to nine years and
was working less than full-time as a kindergarten teacher at the time of the
accident. She suffered injuries that caused ongoing and regular back pain, with
severe flare-ups from time to time, which restricted all of her family and
recreational activities and affected her work. The award was based on a finding
that the plaintiff had lost the ability to take advantage of the opportunity to
work full-time as a kindergarten teacher, taking into account the physical
demands of that job, but remained able to work full-time as a teacher. It is
difficult to assess the basis for the amount awarded to the plaintiff, but it
appears to have been derived from the amount sought ($345,600), which was based
on a permanent inability to work full-time.

[68]        
The plaintiff in Sinnott was 16 years old when she suffered soft
tissue injuries to her neck and shoulders and had not yet settled into a career
at the time of trial. She had back pain that receded fairly quickly but
continued to have aches in her neck and shoulders, ongoing discomfort and
intermittent headaches, all of which would continue indefinitely. She was
awarded $30,000 “for being less marketable as an employee because of the
limitations on her ability to work competitively in all jobs previously open to
her.” Romanchych also involved a young person, then a university
student, with an unsettled career. An award of $80,000 was based on a finding
that there was a substantial possibility that the plaintiff would experience an
income shortfall during the rest of her working life.

[69]        
The defendant submits that if the court is satisfied that Ms. Cartwright
has proven this loss of capacity, then an award in the $20,000 range would be
appropriate, citing Bjarnason and Guilbault.

[70]        
I found Bjarnason quite helpful on this issue. The plaintiff was
an elementary school teacher who suffered soft tissue injuries causing intense
pain, severe headaches and depression for about two months, with ongoing
episodic flare-ups aggravated in particular when the plaintiff taught
kindergarten. The judge described the plaintiff as “a young professional woman
with many working years ahead,” whose condition was chronic, in that she was
susceptible to periodic flare-ups into the foreseeable future. The judge found
that these flare-ups would be seen as negative features to a prospective
employer and would render the plaintiff less marketable and attractive as an
employee. The plaintiff was awarded $20,000 for what was considered to be a
modest diminishment of future earning capacity.

[71]        
I consider Ms. Cartwright’s loss to be somewhat more than the modest loss
described in Bjarnason as her pain is quite constant. Also, like Sinnott,
Ms. Cartwright is still a young person who, although she knows what she wants
to do, has not yet established a career and has no settled pattern of
employment. As the Court in Sinnott noted (at para. 16), in such
circumstances, quantifying a loss of future capacity is “more at large”.

[72]        
Considering the evidence and the relevant positive and negative
contingencies, I assess Ms. Cartwright’s future loss of earning capacity to be
$40,000.

Future care costs

[73]        
Ms. Cartwright claims future care costs in the amount of $50,669 for a
rehabilitation program, ongoing monthly services, and a functional capacity
assessment.

[74]        
She would like to participate in the three month structured
rehabilitation program recommended by Dr. Brownlee, to include physiotherapy, kinesiology,
massage, chiropractic treatments, and psychological services. This is a
one-time cost of $9,822. In addition, she seeks ongoing monthly physiotherapy
or kinesiology, monthly massage therapy, membership to a fitness centre, and a
functional capacity assessment, also as recommended by Dr. Brownlee. Her claim
is based on an annual cost of $720 for the monthly physiotherapy or kinesiology
sessions, $720 for the monthly massage sessions, and $532 for a fitness
membership, for a total annual cost of $1,972. She seeks this for a period of
30 years at a present value of $36,847. She claims $4,000 as a one-time cost for
a functional capacity assessment.

[75]        
The defendant submits that Ms. Cartwright is entitled to future care
costs in the range of $1,000, which would allow her to participate in the
regular exercise program recommended by Dr. Laidlow. Counsel submits that Dr.
Brownlee’s recommendations carry little weight because he did not articulate
why the structured rehabilitation program would be of benefit to Ms. Cartwright.

[76]        
The physical components of the rehabilitation program recommended by Dr.
Brownlee would include physiotherapy, massage therapy, chiropractic treatment and
kinesiology (a supervised exercise program). The psychological components would
include Cognitive Behavioural Therapy, Mindfulness, Eye Movement
Desensitization and Reprocessing Therapy, and Biofeedback. This treatment
program was developed by the multi-disciplinary team at the Welcome Back Centre,
with the goal of improving or relieving Ms. Cartwright’s pain and improving her
level of function.

[77]        
The ongoing maintenance therapy would include physiotherapy or
kinesiology to supervise her ongoing exercise program, a membership in a
fitness centre, and massage therapy or chiropractic treatment to monitor and
relieve her pain symptoms.

[78]        
The purpose of the functional capacity assessment is to evaluate Ms. Cartwright’s
level of tolerance for work, recommend ways to maximize her chance of gaining
future employment, and determine her limitations and needs for activities of
daily living.

[79]        
Dr. Laidlow disagreed with providing further or ongoing passive
treatments, such as massage therapy. His view was that massage therapy has no
benefits beyond transitory relief and is of very limited value after the first
few months of injury. His opinion was that Ms. Cartwright needed to be involved
in an exercise program that would help her gain strength and flexibility. He
recommended a gym program that involved warm up, strengthening and stretching
exercises, some on a daily basis and others three times a week.

[80]        
In my view, Ms. Cartwright clearly needs to participate in a structured
rehabilitation program that focuses on regular exercise, as recommended by Dr.
Laidlow, as well as some additional massage therapy and perhaps chiropractic
treatment to provide her with some pain relief, as recommended by Dr. Brownlee.
Additionally she should be provided with ongoing kinesiology at least twice a
month, access to a gym membership, and periodic massage therapy. While I found
Dr. Laidlow’s opinion about passive therapies somewhat compelling, the evidence
does show that massage therapy (and to a lesser extent chiropractic treatment) has
provided Ms. Cartwright with temporary pain relief that has helped her manage
her daily living. For example, she was able to work throughout the summer of
2007 while getting massage treatments twice weekly.

[81]        
I do not accept Dr. Brownlee’s recommendation for a functional capacity
assessment. There is no evidence that Ms. Cartwright requires this to assist
her to gain future employment.

[82]        
Dr. Brownlee’s recommendation for psychological treatment is problematic
in that it relies on the opinion of a psychologist whose opinion was not put
before the court. There is no proper opinion evidence about why the specific
therapies outlined above are recommended for Ms. Cartwright. However, I do
accept Dr. Brownlee’s opinion that an emotional or psychological component is
common for individuals with chronic pain and is not often dealt with, and I
accept that Ms. Cartwright’s rehabilitation program should include some
psychological component that is pertinent to her chronic pain.

[83]        
Accordingly, Ms. Cartwright is entitled to an award for future care
costs for the following:

(1)      a three month
rehabilitation program that includes an exercise program supervised by a
physiotherapist or kinesiologist, massage therapy or chiropractic treatment, and
a psychological component designed to address chronic pain;

(2)      an ongoing exercise
program supervised by a kinesiologist twice monthly (including a gym
membership) for a period of 15 years (I consider the 30 year period suggested
by counsel to be excessive given the evidence); and

(3)      ongoing, periodic massage
therapy, based on 12 sessions per year for a period of 5 years.

[84]        
Based on the costs provided by the Welcome Back Centre, I assess the
one-time cost for a three month program at $8,000; the annual cost for ongoing
kinesiology at $1,440; the annual cost for a gym membership at $532; and the
annual cost for massage therapy at $720. The present value of these annual
costs, using a 2.5% discount rate, is as follows:

 Kinesiology             $17,829

 Gym membership      $6,587

 Massage                   $3,345

 Total                       $27,761

[85]        
Including the three month rehabilitation program, Ms. Cartwright’s
future care costs are $35,761.

Loss of housekeeping capacity

[86]        
Ms. Cartwright seeks housekeeping services twice a month for 10 years,
at $50 per session, for an annual cost of $1,200 at a present value of $10,503.

[87]        
A claim for loss of housekeeping capacity is
for the loss of the value of work which would have been done by a plaintiff but
which can no longer be performed because of the injuries. It is a claim
distinct from future care costs, as it is the loss of a capacity that is
compensated and it is not dependent upon whether replacement housekeeping costs
are actually incurred: O’Connell (Litigation guardian of) v Yung, 2012
BCCA 57, at para 67. Care must be taken not to compensate for more than can
reasonably be said to have been lost: McTavish
v MacGillivray, 2000 BCCA 164.

[88]        
Ms. Cartwright testified that she does the best she can with housework
but cannot always do all of it. Ryan Sharp, her fiancé, testified that he tries
to do as much work around the house as he can when he is home – such as
emptying the dishwasher and vacuuming – to keep Ms. Cartwright “off her hands
and knees”.

[89]        
This evidence is extremely vague and does not establish what housework Ms.
Cartwright is no longer able to do. No detail was provided that would give this
Court an idea of what services she did before but can no longer do because of
her injuries. There is simply no proper evidentiary base on which this Court is
able to assess such a claim and in my view, the evidence is insufficient to
prove a loss of housekeeping capacity.

Special damages

[90]        
Ms. Cartwright claims special damages in the amount of $6,979.92 ($8,335.53
less $1,355.61 already paid) for prescription medications; a new bed, pillows
and bedding; chiropractic, massage and physiotherapy treatments; one
counselling session; and the modified focus assessment prepared by the Welcome
Back Clinic. The defendant disputes some of the items, such as pillows and
bedding, mileage for treatments in Kelowna and treatments not recommended by
Dr. Laidlow, including the modified focus assessment.

[91]        
My view is that all of these expenses were reasonable in the
circumstances. Ms. Cartwright was trying to address her chronic pain and even
if some of her efforts proved ill-planned or ineffective, I find she was
honestly pursuing ways to alleviate her pain.

[92]        
The only exception is the cost for the modified focus assessment
($3,889). Ms. Cartwright testified that her parents paid for this. Since she
did not actually incur the expense, there is no basis for reimbursement.

[93]        
Accordingly, Ms. Cartwright is entitled to special damages in the amount
of $3,090.92.

Conclusion

[94]        
Ms. Cartwright’s damages are assessed as follows:

 Non-pecuniary damages                        $60,000.00

 Past wage loss 
$3,387.00

 Future loss of earning capacity 
$40,000.00

 Future care costs 
$35,761.00

 Special damages 
$3,090.92

 Total damages                                      $142,238.92

[95]        
Ms. Cartwright is also entitled to costs at the usual scale.

“Fisher
J.”