IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120731

Docket: M092271

Registry:
Vancouver

Between:

Marilyn Foubert

Plaintiff

And:

Jung Min Song

Defendant

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice R. Punnett

Reasons for Judgment

Introduction

[1]            
On May 28, 2007 the plaintiff was driving her older model Volvo from
downtown Vancouver, British Columbia to her home in Point Grey over the
Burrard Street Bridge. Without warning she found herself struggling to
control her vehicle after it was struck by the defendant’s Mazda RX8 seen by
others immediately prior to the accident weaving in and out of traffic at a
high rate of speed. The photographs of the vehicles reveal extensive damage to
the Mazda and damage to the front end of the Volvo. The Volvo was written off.

[2]            
Liability is admitted. Causation and damages are in issue. The third
party alleges that the plaintiff’s pre-existing medical issues would have
inevitably led to some of her present difficulties and as a result the
defendant Jung Min Song bears no responsibility for them.

Background

[3]            
The plaintiff was 60 years of age at the date of the accident. She is
now 65. She is an artist and art teacher. She had some training from Sheridan
College School of Design, majoring in textiles, in 1972 to 1974 but no other
formal training. She has been an artist most of her life, pursuing what she
loved and eschewing financial wealth in favour of what she described as her
“passion”.

[4]            
She is the mother of two children, the first a daughter born when she
was young and given up for adoption and the second a son, born of a common-law
relationship in 1982. She has re-established a relationship with her daughter
and has a close relationship with her son who resides in Vancouver. She raised
her son as a single parent from the time he was approximately 4 years of age.

[5]            
She resides in subsidized housing on Point Grey Road in Vancouver with a
roommate who has become a close friend. He has some issues involving depression.
She did not describe their relationship as common-law.

[6]            
Originally from Manitoba the plaintiff has been resident in B.C. since
1980. Her primary employer for the past 20 years has been The Children’s Arts
Umbrella Association on Granville Island (the “Arts Umbrella”). Under their
auspices she taught art to young children on Granville Island and also at
various outreach programs including schools and the Roundhouse Community Centre.
The work was described as involving a high level of energy in order to engage
and motivate the children.

[7]            
In addition to her work as an Arts Umbrella employee she has conducted
various workshops over the years as well earning some income from sales of her
work.

The Accident

[8]            
The plaintiff testified that she was proceeding south on the Burrard
Street Bridge in relatively light traffic. She never saw the defendant
approaching her from behind nor did she see the actual impact. She recalls
suddenly fighting for control of her car and hanging onto the steering wheel as
the vehicle seemed about to mount the sidewalk and go over or through the
railing. She said that she thought it was the end. She recalled becoming hysterical
and being “incredibly frightened”. She said she was in pain and had difficulty
breathing, her back was in pain and her body and head moved back and forth. She
said she could not move and that the ambulance crew gave her oxygen and put her
on a stretcher. After examination at hospital she was discharged that day.

[9]            
She said that at the beginning the pain from the accident was everywhere
— her back, rib cage, arms and legs. She had difficulty breathing. She
suffered from what she described as horrific nightmares and said that she was
very emotional and felt worn out that summer.

[10]        
She said that she returned to work in September but found it “very hard”.
She could no longer stand throughout the class as she had done in the past. She
would lie down between classes and testified that she was not as emotionally
stable as before and felt less confident in her abilities. She described
herself as “teary eyed” and felt she had to monitor herself. She said that she
no longer had the patience to cope with a class of young children and she was
not performing her job in the way she had in the past.

[11]        
She continued with difficulty to work throughout the fall of 2007 and
for most of 2008. She was able to cycle and walk but lacked the endurance and
stamina she had prior to the accident and continued to tire more quickly. She
said that she had more disturbed sleep, was overly sensitive to stress and was
insecure. She has not returned to driving.

[12]        
In February 2008 her general practitioner Dr. Kamani referred her to
Dr. MacKinnon, a psychologist, for investigation of possible Post Traumatic
Stress Syndrome (“PTSD”). Dr. Kamani also told her to take a year off in 2008.

[13]        
In November 2008 she resigned from her teaching position as she could no
longer do her job. She said that her anxiety was interfering with her ability
to put the art program together and to present it. She was also having trouble
with her legs. She was taking painkillers but still found the work too
difficult. She said her decision to cease working was based on her anxiety,
mood swings and the problems with her legs. She said that giving up work was a
big decision for her as it was a major part of her life. She testified that she
missed working, her work with children had been rewarding and inspirational, she
loved her work and interaction with colleagues and enjoyed working on Granville
Island, a place she described as a “great place to work”.

[14]        
She has not worked since. She does do some weaving in her home studio. She
said that because her painting style is very active she no longer paints due to
continuing problems with her right arm.

[15]        
She said that she has been participating in a meditation program, yoga,
massage therapy and some acupuncture as well as physiotherapy.

[16]        
She no longer throws dinner parties, no longer stays in touch with her
neighbours and cannot accommodate that many people in her life anymore. She
describes taking part in conversations as exhausting, that she no longer goes
to movies, or swims nor cycles or walks to the extent she used to. She no
longer shops and was unable to travel to a niece’s wedding in Miami, Florida
nor was she able to attend her aunt’s funeral.

[17]        
She has been unable to return to driving. She testified that she could
not imagine sitting behind the wheel again although she does wish to drive
again as it was part of her sense of independence. She said she had
investigated a driver training program at G.F. Strong but lacked the funds to
take it.

[18]        
After the accident the plaintiff returned to physiotherapy. From the end
of May 2008 to July 2008 she attended for problems with her shoulder and her
neck. However, on October 6, 2008 she returned with complaints respecting right
foot pain.

[19]        
She agreed that most of her soft tissue injuries were resolved by 2010 and
that she did not complain to her doctor about back pain from 2008 to 2009. Her
shoulder pain was resolved by June of 2010 although she still has limitations
in movement.

[20]        
I found the plaintiff to be a credible witness. Her evidence was
consistent with that of the other witnesses and was consistent with how she has
behaved and lived since the accident. While she was somewhat suggestible there
was nothing to indicate she was being anything but truthful. I accept any
confusion respecting dates and details of treatment as they appear to be due to
her poor memory and her tendency to agree to suggestive questions.

Lay Witnesses

Brandon Thorne

[21]        
Brandon Thorne is the plaintiff’s son. He is 29 years of age. He stated
that the accident has changed his mother both personally, professionally, mentally
and physically. He stated that prior to the accident she was completely self-sufficient.

[22]        
He described their pre-accident activities together as long one and one
half to two hour walks from Jericho to Wreck Beach and back, walks around
Stanley Park and going to movies together. Raised as an only child in a single
parent household he described their relationship as closer than most child and
parent and said that they are close friends as well. He said that they talk
every day.

[23]        
He addressed how things had changed after the accident. Whereas before
his mother drove without difficulty he now has doubts that she will drive again.
He described her as almost unable to be in a car going a normal speed and that
he has adapted his driving when she is with him by going slower, not changing
lanes too much and avoiding fast movements which disorient her.

[24]        
He described what he called “episodes” with her in the car the most
extreme of which occurred 8-12 months after the accident when he came to a
sudden stop, putting his arm out to restrain her and she became pale, was
sweating and crying and had to get out of the car for 10-15 minutes before they
could continue.

[25]        
He said that he now takes her out for all of her grocery shopping and
other errands, and activities that she used to drive herself to. They do not go
to movies anymore because of the volume. He described her even having trouble
watching fast actions on the TV. Their walks are now 10-15 minutes long instead
of long hikes.

[26]        
He testified that while she had minor insomnia before she tells him now
of recurring nightmares, he notes that everything seems to have slowed down for
her in her thinking and her reactions and ability to make decisions. They have
tried to go to restaurants but have had to leave because of the noise and
activity.

Andrea Chamberlain

[27]        
Andrea Chamberlain was an assistant in the plaintiff’s classroom
starting in the fall of 2006. She described the job as requiring “lots of
energy”, that the plaintiff loved teaching and was very passionate about what
she did and as well was “very, very, capable of managing the classroom.”

[28]        
She took over the plaintiff’s class after the accident. When the
plaintiff returned in the fall she stated that the plaintiff seemed to have a
decreased level of energy; that she brought a stool to the classroom as she
could not be on her feet for the whole class and after demonstrating the work
to be done to the children would need a break. Ms. Chamberlain stated that she
took over more responsibility respecting the setting up for the class and the
clean up after the class as the plaintiff was less capable of lifting and
carrying the benches and equipment. Over the fall she said that things got
worse and the plaintiff’s ability to manage the classroom and keep up her
energy decreased until she finally ceased teaching.

[29]        
Ms. Chamberlain did see the plaintiff socially thereafter and stated
that she seemed to have less energy and certain environments were over
stimulating for her. As a result she would visit the plaintiff at her home
starting in 2008 or 2009. She said that their visits became shorter and shorter
as after 30-45 minutes the plaintiff would have to lie down and rest.

[30]        
She testified on cross-examination that she was not aware of the
plaintiff having any neck and shoulder pain before the accident and did not
observe any signs of that prior to the accident.

[31]        
It was put to her that she wanted the plaintiff to do well in the
lawsuit. She replied that she wanted the plaintiff to have a fair trial.

Marta Robertson-Smythe

[32]        
Marta Robertson-Smythe has been a friend of the plaintiff since 1990
when they met as teachers at the Arts Umbrella, where she still teaches. She
stated that in the three years prior to the accident they would together attend
at such places as The Cellar; that the plaintiff was a wonderful cook and would
have dinner parties for her co-workers; that if either had an art exhibition
they would get together, they would go out dancing (salsa and flamenco) and
took walks along the beach and in the woods together. They would also get
together for tea, gallery visits and shopping.

[33]        
She was asked if the plaintiff had to rest before the accident. Her
response was that the plaintiff was “usually the last person at the party” and
was often the one throwing the party.

[34]        
She was not aware of the plaintiff ever missing work due to accident,
injury or anxiety prior to the accident. The only injury she was aware of that
interfered with any activity was about 10 years ago the plaintiff stopped
flamenco dancing because of problems with her shoulder.

[35]        
She described the change in their activities together after the accident
as declining such that she only sees the plaintiff once a month, usually at the
plaintiff’s home. She said the plaintiff does not appear to handle large groups
very well, becomes over excited, gets flushed and louder resulting in her
telling the plaintiff to relax. In the past their visits would last 3-4 hours
and are now a maximum of 2 hours by which time she described the plaintiff
as “totally wiped out after that”. She noted that the plaintiff no longer
drives and she now visits her and takes her out and commented that prior to the
accident the plaintiff was very independent. They no longer shop together,
dance or go to musical performances and any dinner parties given by the
plaintiff are not for groups.

[36]        
She testified that they had in the past year gone to a restaurant with
flamenco performances but the plaintiff left after 30 minutes because she was
unable to handle the noise and the crowd. She confirmed that the plaintiff is
now a nervous passenger. She described the plaintiff’s life as seriously
curtailed both with respect to work and her social life.

[37]        
She openly acknowledged that she wanted the plaintiff to do well in the
lawsuit.

David Stambler

[38]        
Mr. Stambler is a media designer who came to know the plaintiff as a
parent of two children who attended programs at the Arts Umbrella. His children
have attended for several years. He described her as a “dynamic and vibrant
teacher”. He said that she had a high energy level that matched that of the
children.

[39]        
He provided computer lessons to her. After the accident they discussed
the possibility of preparing a DVD of her lessons that could be offered for
sale. They filmed her doing 6 lessons. He described her energy level as “really
low” and at one point she wanted to cancel the project because she was overwhelmed.
He persuaded her to continue in the fall of 2008 but in the spring of 2009 the
plaintiff informed him that because of her health and lack of energy she could
not even consider continuing with the project.

[40]        
Mr. Stambler said that she became a friend over the years but that now
she is “certainly not the person that I knew”. He said that he believed that
the project had had the potential to earn a profit.

[41]        
The lay witnesses willingly acknowledged that they were there for the
plaintiff and that they hoped for a good outcome for the plaintiff. As in Smusz
v. Wolfe Chevrolet Ltd., 2010 BCSC 82, there is nothing
sinister about such evidence and in fact their credibility would be open to
question if they denied that they hoped the plaintiff would do well in the
lawsuit (para.37).

Expert Evidence

Dr. Kamani

[42]        
Dr. Kamani is a family physician. The plaintiff has been her patient
since August 3, 2006. Prior to that the plaintiff was seen by Dr. Nicole Barry
and Dr. Elisabeth Crosby, former associates or locum physicians of Dr.
Kamani.

[43]        
She provided two reports, the first dated November 5, 2008 and the
second August 4, 2011. She also testified at trial.

[44]        
She reported in her first report that the plaintiff was seen on May 29,
2007 respecting the accident. The plaintiff reported that she was shocked by
the accident, her leg was bruised and she described feeling very weak and with
pain in her back, shoulders and neck, tightness in her chest and difficulty
breathing. She did not have a headache at the time but felt “groggy”. She was
seen the next day complaining of dizziness, imbalance, fatigue, blurred vision
and pain in her neck back and shoulder. She was tender on the paraspinous and
trapezeii muscles in her neck and shoulders and flexion and extension of her cervical
spine was limited to 35 to 40 degrees. She had full range of motion of her
shoulders.

[45]        
Dr. Kamani’s clinical diagnosis was that of soft tissue injury post-MVA.
Physiotherapy, stretching exercises and ice and heat were advised. She was
given a prescription for the anti-inflammatory Celebrex.

[46]        
She was seen May 31, June 6, June 22, August 3, October 19, November 19
and November 30, 2007 and February 14, March 11, April 22, May 5, May 26, June 9,
August 11 and October 6, 2008.

[47]        
She described the plaintiff’s situation up to November 2007 as follows:

In the early months post MVA, Ms. Foubert complained of being
"sore all over"’, having nausea and slight dizziness and some
abdominal discomfort. She had difficulty with sleep. She was quite worried
about not being able to work and a note was provided for her to stay off work
for 1 to 4 months as needed. She was reassured and referrals to massage and
physiotherapy were supported. Medications varied and included muscle relaxants
(Flexeril). anti inflammatories (Naprosyn), analgesics (Tylenol #3) and
sedatives (Immovane and Tryptophan).

By October, she was able to work 6 to 8 hours a week but had
to drop two outreach programs for children with high or special needs in the
community and Arts Umbrella. She was also recommended to see an acupuncturist
with biofeedback to treat the myofascial pain in her back and the post
traumatic stress symptoms such as fear of driving, insomnia, flashbacks of the
MVA and heightened sensitivity to goings on in her surroundings such as her
classes, social settings and meetings.

In November she reported that after teaching four classes she
found herself shaking with pain overwhelming emotional and physical strain. She
reported her pain to be 4 out of 10. She continued with osteopathic massage but
had to discontinue the muscle relaxant, Flexeril due to constipation as a side
effect.

In February 2008,I took over her care and realized the degree
of Post Traumatic Stress Syndrome symptoms that were limiting her everyday
activities. I referred her to Dr. Joanna MacKinnon, Psychologist who
specializes in these cases.

In May 2008, she reported an "itchy rash" with few
solitary lesions but mostly pruritus. My original diagnosis was that of contact
dermatitis or neurodermatitis due to stress. The dermatologist, Dr. Gillian de
Gannes felt it was a case of generalized xerosis similar to a heightened
sensitivity associated with itching and redness of the skin. She advised non
sedating anti histamines to reduce the itching, to use bland soaps and avoid
fragrance lotions/botanical extracts. Ms. Foubert also used Benadryl, a fast
acting anti histamine if the itching was unbearable.

Her high anxiety level was quite apparent in most office
visits.

By August 2008, the pain was not so much in fore front of her
symptoms as was the itching and not having regained the strength in her right
arm which she uses to paint in the style /technique that she has been
developing for a few years.

She was still not able to drive as she had not regained her
confidence to do so. She has also lost her car in the accident. This has had a
huge impact on her life especially in regards to her work.

She feels that her "nervous system" is not able to
cope with situations that are more demanding and as such has had to let go of
three contracts with Arts Umbrella, two of which took place in Inner City
Schools. She was told by one of these teaching jobs that there was a negative
alteration in her teaching abilities. This has really shocked the patient who
has been teaching for many years. She is considering disability.

[48]        
Dr. Kamani summarized her clinical impression and diagnosis at that
point as follows:

1.         Musculoskeletal symptoms in her
neck, shoulders, back, left knee and right leg associated with inflammation,
muscle spasms and pain as a result of the above MVA.

2.         Myofasial pain syndrome in the
above areas responding to massage and topical medications when used.

3.         Post [T]raumatic Stress
Syndrome associated with flashbacks initially of the MVA and responding well to
Dr. MacKinnon’s therapy, heightened anxiety and sensitivity, reduced ability to
perform her tasks as before the MVA with respect to her job as an Art teacher
and in social settings, poor sleep and fatigue. Loss of confidence for driving.

4.         Persistent itching due to severe anxiety

I support the findings in Dr. MacKinnon’s report fully. You
are also aware of the time lost from work and wage losses. Presently, she is
finding it very difficult to manage her present reduced work load. She is
worried about her financial losses and nature abilities to work.

[49]        
The plaintiff’s complaints as reported to her in June 2009 were:

·                 
Feeling exhausted all the time

·                 
Unable to multitask and handle over stimulation in social
settings and interactions

·                 
Persistent anxiety and difficulty with sleep.

·                 
Feeling worn out with short day or overnight trips

·                 
Unable to honor her teaching contracts and managing children’s
programs

·                 
Itching all over including her scalp

[50]        
She was diagnosed with Generalizes Xerosis/Rashes secondary to stress.

[51]        
In November 2009 she also reported experiencing stress as her housing
co-op was requesting that she move into a one bedroom apartment from her two
bedroom unit. Dr. Kamani noted she was very tearful, kept saying she could not
handle the stress anymore, was having rashes, sleeping poorly and her anxiety
level was quite severe. Dr. Kamani completed her request form for a Canada
Pension Plan Disability pension.

[52]        
In mid-2010 she complained of feeling dizzy and unstable and was
referred to Dr. Prout to conduct a neurological assessment. In August 2010 she
was started on anti-anxiety medication and in September 2010 she was seen by
Dr. D. Campbell, a psychiatrist at St. Paul’s Hospital. No reports were in
evidence from either of these physicians.

[53]        
Dr. Kamani provided an updated report dated August 4, 2011.

[54]        
Dr. Kamani’s final diagnosis was:

·                 
Soft Tissue Injuries to her neck, shoulder, back, left knee and
right foot. These have mostly resolved

·                 
Severe Anxiety Disorder secondary to Stress from various losses
experienced by the patient due to the MVA.

·                 
Post Traumatic Stress Disorder due to the MVA. Patient has not
driven since the MVA.

·                 
Medical and Physical diagnosis secondary to psychic factors. She
has been diagnosed with Generalized Xerosis or itching not due to systemic or
allergenic causes.

·                 
Mild sensory peripheral neuropathy since the MVA and foot pain

·                 
New finding of Bursitis in the hip (trochanteric bursitis )
secondary to alterations is mobility and walking from problems in her foot and
lower extremities

LOSSES:

·                 
The patient has lost her emotional stability and psychological
mental health due to the severe stressors as a result of the MVA

·                 
Is no longer able to drive due to PTSD

·                 
Financial losses

·                 
Functional losses as per evaluation

·                 
Future career and vocational plans as an artist / weaver

·                 
Ability to work due to emotional health decline

·                 
Declining physical health due to emotional stressors such as
persistent itching, insomnia and fatigue and new findings of peripheral
neuropathy and bursitis since the MVA

PROGNOSIS:

It has been over 4 years since the MVA and patients
Psychological and emotional problems have not resolved and have in fact
reflected in increasing physical manifestations such as generalized itching,
insomnia, fatigue and anxiety. She has also developed some more physical
symptoms due to sensory changes and bursitis in her lower extremities and hips.

The prognosis for recovery is
guarded and indefinite.

[55]        
She recommended Cognitive Psychotherapy to manage PTSD and her physical
and emotional manifestations of anxiety.

Dr. MacKinnon

[56]        
Dr. MacKinnon is a registered psychologist. She provided an expert
report dated October 13, 2008 and testified at trial.

[57]        
In her report she found that the plaintiff met the criteria for Post Traumatic
Stress Disorder, DSM-IV-TR 309.81. She treated her with four sessions of
Eye Movement Desensitization and Reprocessing (“EMDR”) targeting four
different aspects of the accident and one session scanning the entire accident
sequence. Dr. MacKinnon stated that “EMDR was an excellent treatment
method for Ms. Foubert. After processing her experiences of the accident
she was able to talk about the accident without experiencing distress, … On July
2, 2008 we checked the targets that were processed with EMDR and she
acknowledged that thinking of the accident no longer causes any emotional distress.”

[58]        
Dr MacKinnon provided the following clinical observations and opinion:

Ms. Foubert presented as an attractive, likeable, fashionably
dressed woman. Her anxiety, agitation, and concerns about her future were
palpable during the sessions. When she became anxious during a session it was
sometimes difficult to re-direct her attention. I believe Ms. Foubert to have
been honest and genuine during our sessions and there was no evidence of
malingering. I believe Ms. Foubert’s assessment that her entire life has
changed substantially since the accident.

Although she has processed the actual accident and no longer
experiences any distress or negative self-beliefs when remembering the
experience of the accident, she does continue to experience symptoms of PTSD,
mainly hyper-arousal (i.e., agitation, feeling overwhelmed, wanting to escape)
in stimulating environments (i.e., noise, chaos, high emotions, people
talking). I agree with Ms. Foubert’s assessment that she has become
hypersensitive since the May 28, 2007 MVA, and that she has a decreased
ability to cope in situations that were once common and often enjoyable (i.e.,
a classroom of children, co-op meetings, and wedding receptions). These
symptoms of hyper-arousal have affected Ms. Foubert’s ability to work at a job
she once loved, and to enjoy social functions. As a resulted her life has
become increasingly restricted and confined as she accepts these changes and
limitations, in addition, her feeling too insecure to driving has further
limited her freedom and mobility.

It is unfortunate that Ms.
Foubert did not have the financial support to take a longer medical leave after
the accident.

Recommendations

Ms. Foubert continues to suffer from the consequences of the
May 28, 2007 motor vehicle accident and requires further psychological
treatment. Without further treatment it is likely that Ms. Foubert will
continue to feel hypersensitive and exhibit symptoms of hyper-arousal. Due to
the unpredictable nature of her symptoms it is possible that her life may
become even further restricted and limited if these symptoms are left
untreated.

From comments made by Ms. Foubert regarding money, I am
inferring that she has not sought more treatment because of her concerns about
her finances and her fear of receiving an unfair and poor settlement from ICBC.
Since EMDR was such an effective treatment for Ms. Foubert I recommend that she
receive additional EMDR sessions addressing the aftermath of the May 28, 2007
accident (i.e., fears about money, her ability to financially take care of
herself, feeling her suffering wasn’t recognized, her decreased ability to
cope, as well as her fears and insecurity about driving).

In addition to receiving EMDR treatment regarding her fears
around driving, Ms. Foubert may want to pursue professional driving lessons to
help regain her confidence.

Furthermore, Ms. Foubert would
benefit from neurofeedback with Dr. Paul Swingle and Associates addressing her
increased hyper-arousal and hypersensitivity.

[59]        
In her evidence at trial she confirmed that she last treated the
plaintiff on July 2, 2008 and was not aware of her current condition.

Dr. Fred Shane

[60]        
Dr. Shane, a psychiatrist, conducted an independent medical examination
of the plaintiff at the request of her counsel. He provided a report dated May
13, 2011 based on his May 3, 2011 examination of the plaintiff.

[61]        
Dr. Shane summarized PTSD as follows:

The Post Traumatic Stress Disorder is a diagnostic category
described in the diagnostic manual of the American Psychiatric Association
which is widely used by psychiatrists of North America. The criteria are as
follows:

1.         the person has been exposed to
a traumatic event in which both the following are present:

a)         the person experienced,
witnessed or was confronted with an event or events that involved actual or threatened
death or serious injury or threat to the physical integrity of the self or
others

b)         the person response
involved intense fear, helplessness, or horror

2.         the traumatic event is
persistently re-experienced in one or more of the following says:

a)         recurrent and intrusive
distressing recollections of the event including images, thoughts or perceptions

b)         recurring distressing
dreams of the event

c)         acting or feeling that
the traumatic event was recurring (including a sense of reliving the
experience, illusions, hallucinations, and dissociate flashback episodes)

d)         intense psychological
distress and exposure to external or internal cues that symbolize or resemble
an aspect of the traumatic event

3.         persistent avoidance of stimuli
associated with the trauma and numbing of general responsiveness (not present
before the trauma), as indicated by three or more of the following:

a)         efforts to avoid
thoughts, feelings, or conversations associated with the trauma

b)         efforts to avoid
activities, places, or people that arouse recollections of the trauma

c)         inability to recall an
important aspect of the trauma

d)         markedly diminished
interest in participation of significant events

e)         detachment or estrangement from others

f)          restrictive range of
affect ( example – unable to have loving feelings)

g)         a sense of a foreshortened future

4.         persistent symptoms of increased
arousal not present before the trauma as indicated by two or more of the
following:

a)         difficulty falling or staying asleep

b)         irritability

c)         outbursts of anger

d)         difficulty concentrating

e)         hypervigilance

f)          exaggerated style of response

5.         the disturbance causes
clinically significant distress or impairment of social, occupational or other
important areas of functioning.

In reviewing with Ms. Foubert the psychological sequelae to
the accident, she has experienced many of the symptoms the Post Traumatic
Stress Disorder on an ongoing basis. These symptoms have ameliorated to some
degree but have had an impact over the years.

For Ms. Foubert the following symptoms are of significance.
She had been exposed to a traumatic experience in which she was significantly
frightened and felt threatened and felt her life was in danger. She has
experienced anxiety about the event reoccurring in the context of dreams of the
event. She denies any flashbacks although this was documented in her files by other
physicians. She does feel intense psychological distress when she is exposed to
external or internal cues that symbolize or resemble an aspect of the traumatic
event. She has experienced depression episodically since then and more so after
the accident and a markedly diminished interest in participation of events that
were important to her. She has felt a sense of detachment and estrangement from
others and significant anxiety about the future. She has also had difficulty
with her sleep being interrupted from time to time. She has difficulty with her
cognition and being able to function intellectually episodically over the
years. She has also experienced a significant exaggerated style of response and
a hypersensitivity to noise. She has felt a decreased ability to cope in all
areas of her life. She has also developed significant anxiety about being able
to work in the context she had before especially with children in school
settings. Her energy level has been diminished. She cannot work as long as she
used to although she began to work again in 2008 and averages approximately
four hours a day at this point. She is no longer driving because she feels too
overwhelmed and fragile.

[62]        
His conclusions were:

—  Post Traumatic Stress Disorder

At this time Ms. Foubert is still experiencing some sequelae
of the Post Traumatic stress Disorder in terms of her anxiety and general
psychological functioning.

Ms. Foubert tends to worry excessively at times more days
than not and experiences generalized anxiety on a day to day basis. She also
has the occasional panic attack. It impairs her psychosocial functioning on
occasion.

— Major Depression in
remission

Based upon the clinical examination with the context of the
documentation available to me, it would appear that following the accident she
experiences symptoms of a Major Depression. These symptoms have ameliorated to
a substantial degree at this point.

DSM-IV Diagnosis

The DSM-IV diagnostic manual is used by psychiatrists in
North America to diagnose mental disorders.

Axis I   –  Post Traumatic Stress Disorder — in partial
remission

–  Pain
Disorder with both Psychological Factors and a General Medical Condition –  in
partial remission

–  Generalized Anxiety State

–  Major Depression – in remission

Axis II  –  No diagnosis

Axis III –  Musculoskeletal
pain subsequent to a motor vehicle accident in 2007 predisposing her to the
Axis I diagnosis of Pain Disorder with both Psychological Factors and a General
Medical Condition

Axis IV –  Psychosocial stress

–  Occupational stress

–  Financial stress

Axis V  –  GAF approximately 65

[63]        
He concludes with this prognosis:

Ms. Foubert is still psychologically and physically
symptomatic which impairs her psychological, physical and occupational
functioning. Her drive and sense of well being have been impacted. Her ability
to earn the type of income that she did in the past has been altered
dramatically. She is subsidized financially by a disability pension and is able
to earn some money from selling her art. I do not think that her status
occupationally is likely to change. I also feel she should be maintained on her
psychotropic medication and receive counseling as she feels necessary, related to
any significant stresses she is expressing. She is unable to return to teaching
art in the context of her previous involvement with schools and the art
community. Any other issues of concern have been addressed within the context
of my report.

[64]        
When asked at trial about the stresses the plaintiff faced after the
accident Dr. Shane said this:

A.         I think in a
significant way … here is a woman at the time of the accident happened she was in
her 60’s and when look at her life … against based on what she told me and the
documentation … she was earning a very modest amount of money; she had
subsidized housing but she was paying her way other than that; … she is an artist
teaching children and the thing about this woman is she got up every morning
all those adult years … she worked and contributed to the community and subsequent
to the accident I think her life became turned upside down and she experienced
many subsequent struggles of social, psychological and physical nature; not
that she did not have other problems after the accident but this was a turning
point and I think … that it was a major impact on the nature of her functioning
in the context of her life.

[65]        
On cross-examination he explained that some people respond to treatment
for PTSD and others have lingering or chronic issues. He explained that all
have different thresholds. He confirmed he remained of the view that the in
terms of doing what she did before for work that remained a problem.

[66]        
He was of the opinion that the plaintiff suffered from and continues to
suffer from PTSD. In his view, given 5 years have passed since the accident, he
did not think there would be any particular advantage in referring her to a
clinic for treatment as it would have very limited value. He stated that she “is
where she is at” and is vulnerable to a resurgence of those symptoms,
particularly if in another accident.

[67]        
In his subsequent report he commented generally on a diagnosis of PTSD
as follows:

It is also important to indicate that one can at times
tend to medicalize responses to traumas. The issue is the accident
certainly had a significant impact upon the quality of her functioning and to
attempt to categorize responses within a medical terminology often does not do
justice to the life experiences of an individual. Psychiatric disorders such as
the PTSD represent an attempt to categorize responses to certain traumas. Based
upon research these responses are then offered as diagnostic criteria. It is
worthwhile stating that sometimes there may not be "enough symptoms to
justify this diagnosis" but it does not diminish the severity, intensity
and impact of the trauma upon the person’s life.

[68]        
I found Dr. Shane to be objective and responsive in his evidence. I
accept and agree with his assessment of the plaintiff.

[69]        
In summary all of the medical experts agreed that the plaintiff suffered
from PTSD arising from the motor vehicle accident. None of them agreed that the
other stresses in her life were responsible for the PTSD, nor did they state
that the other stresses in her life would have manifested themselves in such a
significant manner. There was no evidence from them that the plaintiff would
fully recover and be able to, for example, return to employment.

[70]        
As noted earlier there was no expert evidence tendered by the third
party.

Ayisha Remtulla

[71]        
Ms. Remtulla is an Occupational Therapist. She prepared a report dated
October 18, 2011 addressing the cost of future care for the plaintiff. After
reviewing the medical reports and consultation reports and interviewed and
testing the plaintiff she states that “… [b]ased on the medical opinions for a
guarded prognosis I am making the assumption that Ms. Foubert will make modest
improvements in her functioning with the future care recommendations and
treatments identified in this report.”

[72]        
She concluded that “… Ms. Foubert participated in the assessment with reasonable
to high levels of effort”. Her opinion was:

She was able to sit for up to 40 minutes while weight
shifting and required a break in order to stand up and change positions
following this period of time. She is functional for standing for up to approximately
20 minutes at a time, while leaning on an external support. She is functional
for basic walking within her home and is suited for slow paced outdoor walking,
on even ground in low traffic, quiet environment.

Ms. Foubert is able to bilaterally lift and carry items
within the light strength category for short distances of up to 10 feet.

Her anxiety and fatigue present
as significant limitations with respect to her ability to perform homemaking
and home maintenance activities, engage in leisure pursuits and participate in
work. Generally, she is able to participate in 20-30 minutes of activity and
then she needs a break. She is easily overwhelmed and benefits from having
information repeated to her and provided to her slowly.

[73]        
She makes a number of recommendations respecting cost of future care
needs that I will consider when addressing that claim.

Plaintiff’s Position

[74]        
The plaintiff submits that she was functioning without any disabling
problems prior to the accident. She was employed, carried out her day-to-day
activities and engaged in exercise and an active social life. She was
psychologically stable and was able to drive anywhere. The plaintiff submits
that her pre-existing conditions may have made her more vulnerable but they
were not interfering with her daily life. While she may have had some
difficulty walking prior to the accident, it did not disable her, interfere
with her work, nor was it noticeable to others.

Third Party’s Position

[75]        
The third party did not call evidence. They submit that the plaintiff’s
soft tissue injuries were mostly resolved by June of 2010, that her PTSD is in
partial remission and while she has a pain disorder and some anxiety her level
of functioning is fairly good.

[76]        
They submit that her problems with her feet and legs relate to vascular
claudication. They argue that stresses in the plaintiff’s life such as the
death of her mother, her aunt, the disability of her sister and her high cholesterol
all contributed to her current problems. They submit that her inability to work
is due to problems with her foot and that is not connected to the accident.

[77]        
They further submit that her various stresses would have affected her
ability to function in any event absent the accident.

Plaintiff’s Health Prior to the Accident

[78]        
The plaintiff acknowledged that she had seen a chiropractor about 5
years before the accident for 10 or so visits respecting her lower back and her
neck. She also had physiotherapy for those problems as well. She had also seen
a physiotherapist for her arm or neck, describing her work as physically
demanding and hence on occasion causing her discomfort.

[79]        
In 2001 the plaintiff complained to her then physician of occasional
loss of sleep and depression. There was however no evidence of a diagnosis of
depression then, or indeed, closer to the date of the accident.

[80]        
The issue of the plaintiff’s pre-existing foot problem was put to her
from her medical records. She acknowledged that in 2001 she had sought medical
treatment for her sore feet. She stated however that the pain in 2001 was
completely different than what she suffered from after the accident. The
chiropractic records as confirmed by the plaintiff show problems with her metatarsals
and that they hurt when she walked on a hard floor. However, her main reason
for consulting the chiropractor was pain in her neck and shoulders. No records
after 2001 were put to the plaintiff that would indicate she was having
difficulty with her feet prior to the accident.

[81]        
She stated that it was her right foot that was painful after the accident.
Dr. Kamini noted soft tissue injuries to her left knee and right foot as
well as mild sensory peripheral neuropathy and foot pain since the motor
vehicle accident.

[82]        
The plaintiff had been attending at Jericho Sports & Orthopaedic
Physiotherapy Clinic starting in January 2006. She said that she had attended
for her shoulder, neck and leg pain. She acknowledged that the intake form
completed by her complained of high levels of stress, insomnia and fatigue. She
continued to receive such treatment on at least two occasions in 2006 and in
2007 attended in January and February on 4 occasions. Her last appointment
indicated her sore knee was getting stronger and going up stairs was getting
easier but she was still finding walking painful in her lower right leg and was
as a result avoiding longer walks. She did not attend again until after the
accident.

[83]        
The plaintiff acknowledged having had treatment in the past for her
neck, back and shoulders. She acknowledged receiving physiotherapy and
chiropractic treatment over the years. They all appear to predate the accident
by several years. The plaintiff stated that none of those issues had interfered
with her employment nor had she taken medication for them. She stated that
those past issues were “pretty minor” compared to the injuries suffered in the
accident.

[84]        
The plaintiff admitted to gastrointestinal problems before the accident
along with previous pain in her shoulders, hands and legs. She acknowledged attending
at Jericho Physiotherapy in January of 2006 for shoulder neck and leg pain and
insomnia. She did not recall raising the issue of stress with the
physiotherapist but acknowledged that it was noted in the record. She
acknowledged advising the physiotherapist that she was having problems walking
at the time.

[85]        
The third party referred to a referral of the plaintiff to two
specialists respecting her feet and legs. One opined that the symptoms were not
related to the accident and the other suggested vascular claudication as a
differential diagnosis but in both cases no expert reports were introduced. Given
the lack of a diagnosis and admissible evidence on this point I place no weight
on such speculative possibilities.

[86]        
I am not satisfied that the plaintiff was actively suffering from any
significant physical or emotional symptoms prior to the accident. While she had
some problems with her right leg and her feet they were not sufficient to interfere
with her ability to work at the time of the accident nor did any witness refer
to them. The leg and foot problems only became disabling after and as a result
of the accident and are of a different nature than the earlier complaints of
the plaintiff.

Law and Discussion

Causation

[87]        
The issue of causation arises in this instance from the third party’s
submission that the “but for” test is the causation principle to be applied and
that as a result it is incumbent on the plaintiff to prove that the symptoms in
issue would not have occurred but for the accident. If that burden is met the third
party then submits that the assessment of damages requires reliance on the
crumbling skull principle. As stated in Athey v. Leonati (1997), 140
D.L.R. (4th) 235 at 243 (S.C.C.), “[t]he so-called “crumbling skull” rule
simply recognizes that the pre-existing condition was inherent in the plaintiff’s
“original position”.”

[88]        
The third party points to the evidence referred to earlier that the
plaintiff, prior to the accident, was suffering from psychological and physical
problems and therefore the difficulties complained of post accident would have
occurred in any event.

[89]        
The third party made much of various stressors in the plaintiff’s life
such as the death of her mother in January 2007 and her aunt in January of 2010
as well as her sister’s disability, the psychological problems of her roommate and
the fact that the plaintiff suffered from high cholesterol issues. The response
of the plaintiff that both her mother and her aunt (who was 92 and had been ill)
had lived full lives and that with respect to her aunt, “given her suffering in
life death was a liberation” indicate to me an individual with a realistic view
of life and that such matters, while leading to a sense of loss, are not
causative of her present problems.

[90]        
In my view the evidence establishes that the plaintiff would not have
suffered the loss but for the negligence of the defendant. While the plaintiff
has over the years received various treatments for physical ailments they were
either different than her injuries arising from the accident or intermittent or
episodic in nature. The evidence does not show that such difficulties would
have lead to her present disabilities. I am not satisfied that if the accident
had not happened that the plaintiff would have suffered to any significant
degree from such ailments.

[91]        
I am satisfied that the stresses in the plaintiff’s life both before and
after the accident were simply the normal stresses that arise from the
vicissitudes of life. Their presence before the accident has not been shown to
have interfered with her day to day life or her ability to work.

Damages

Non-pecuniary

[92]        
The plaintiff argues that an award of $125,000 is appropriate. The third
party states that an award of $60,000 to $70,000 less a reduction for pre-existing
injuries is appropriate.

[93]        
In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick J., for the
majority outlined at para. 46 the factors to be considered when assessing
non-pecuniary damages:

[46]      The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; an

(f)         loss or impairment of life;

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

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

(h)        impairment of physical and
mental abilities;

(i)         loss of lifestyle; and

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

[94]        
The plaintiff relies on Johnstone v. H.M.T.Q., 2006 BCSC 1867, Smusz
and Gosal v. Singh, 2009 BCSC 1471, as comparable to the plaintiff’s
loss of function.

[95]        
In Johnstone the cyclist plaintiff was in a collision with a
motor vehicle. The plaintiff had a prior history of back ache and back strain
and had consulted massage therapists and chiropractors before the accident. He
complained of disabling low back pain as a result of the accident and denied
any pre-existing low back pain. He claimed to suffer from anxiety, flashbacks,
nightmares and sleep disturbances which continued 3 years later at trial
although to a lesser extent. He was diagnosed with PTSD, dysthymia and major recurrent
depressive disorder. The plaintiff had prior to the accident suffered from
depression but had used exercise to recover.

[96]        
As a result of the accident he could no longer use exercise to recover
from depression. He was described as “energetic, outgoing, passionate and
driven” before the accident and as “sucked dry, vitality is gone, there is no
joie de vivre” after the accident with a lack of ability to focus.

[97]        
Non-pecuniary damages were assessed at $100,000.

[98]        
In Smusz the plaintiff was involved in a motor vehicle accident
in 2006. The trial was in 2009. At the time of the accident she had thoughts of
dying and leaving her children alone. She suffered a disc herniation in her
neck and continuing low back pain. The herniation also caused referred pain down
her arm to her hand. There was the possibility that surgery could improve the
arm and hand pain but not the neck and low back pain. She continued to suffer
from dizziness.

[99]        
She also suffered from fears and nightmares and depression. She was
diagnosed as meeting and exceeding the SDSM-IV-TR criteria for PTSD and also as
suffering from a related major depression of moderate severity and to be
suffering as well from a pain disorder associated with psychological factors. Her
psychiatrist noted that her PTSD and depression had improved over a two-year
period. Further psychiatric and psychological counselling was recommended. Prior
to the accident she had suffered from reactive depression at the time of her
marriage breakup but recovered prior to the accident. She did receive
psychological counselling and was able to return to driving relatively quickly.

[100]     She was
described as vivacious, energetic and outgoing prior to the accident but after
the accident “all of the fun in [her] life was gone” and that she was wasting
her time sitting at home, not going out and not caring any more. An award of
$100,000 was granted which included a loss of housekeeping capacity.

[101]     In Gosal
the plaintiff was involved in two motor vehicle accidents. She suffered neck,
shoulder, headaches, back pain and tingling sensations in both hands and arms. She
also developed depression and anxiety. She had difficulty concentrating. She was
tired all the time. She was diagnosed with a major depressive disorder caused
by the stress and pain resulting from the first accident. The second accident
caused a relapse. She had chronic pain but not a chronic pain disorder. She was
slowly improving; however the trial was 6 years after the first accident and
more than four years after the second. It was found that her physical pain and
depression would continue to improve but never resolve completely. She was
awarded non-pecuniary damages of $95,000.

[102]     The third
party relies on La France v. Natt, 2009 BCSC 1147, Burke v. Artz
2011 BCSC 850 and Leung v. Foo, 2009 BCSC 747.

[103]     In La
France the female plaintiff was found to have ongoing chronic injuries some
7 years after the accident and that she had anxiety attacks the latter of which
the court held to be pre-existing but some of which were causally connected to
the accident. The plaintiff sought an award of $80,000 an amount the court was
prepared to accept but reduced it by 25% to allow for the pre-accident anxiety
attacks and unrelated post accident attacks.

[104]     The third
party submits that while the anxiety of the plaintiff in this case may be more
serious the physical soft tissue injuries have resolved sooner than those in La
France. They submit that as a result the $80,000 awarded in La France
is higher than should be awarded in this instance.

[105]     In Burke
the court described the plaintiff’s areas of injury as “psychological upset
consisting of post-traumatic stress disorder, depression and anxiety; pain in
her neck; pain in the right side of her face, including her jaw; and headaches”
(para. 17). The accident occurred December 12, 2005 and by 2010 after a
“reasonably intense course of psychological treatment for her post-traumatic
stress disorder. … [addressing] …her symptoms of aversion to driving, intrusive
memories, bad dreams and hyperarousal. … [had reached] a point of remission”. She
was “able to drive again, albeit with some nervousness. The psychological
treatment also addressed her depression and anxiety. … [which] conditions have
diminished as well, …” (para.18). Non-pecuniary damages of $90,000 (before a
10% reduction for a pre-existing condition) were awarded.

[106]     In Leung
the 30 year old plaintiff was a passenger in a vehicle that left the
highway and hit a tree. She sustained soft tissue injuries to her lower back,
neck and shoulders which were ongoing and nightmares and anxiety. A disk bulge
caused by the accident contributed to her back pain. She was diagnosed with
PTSD leading to stress, anxiety and depression which was ongoing at the time of
trial 3 years after the accident but from which a full recovery was
expected. An award of $65,000 for pain and suffering was ordered less 10% for a
failure to mitigate.

[107]     The
evidence of the plaintiff’s co-workers, son and friends indicates that the
plaintiff, prior to the accident, was a high energy and enthusiastic teacher
and that those traits carried through into her day to day life. They have all
had the opportunity to observe and deal with her both before and after the
accident.

[108]     I am
satisfied that as a result of the accident the plaintiff has gone from an independent,
energetic teacher with an active and varied social life to an individual who is
no longer able to work as a teacher, particularly of young children, who can no
longer tolerate large groups nor the over stimulation of a variety of social
situations. Her intention to keep working past 65 years of age has been thwarted
as a result of this motor vehicle accident.

[109]     Given the
age of the plaintiff and the fact that it is now 5 years after the accident I
am satisfied that the plaintiff while having recovered from the soft tissue
injuries and to a certain extent from the PTSD has not, as noted by Dr. Shane completely
recovered. Her present and future level of recovery is evidenced by Dr. Shane’s
opinion that her status occupationally is unlikely to change and that she
remains unable to return to teaching art.

[110]     Having
observed the plaintiff, her evidence of the effect of the accident and the
corroborating evidence of the lay witnesses, as well as the medical evidence, I
am satisfied that the plaintiff will not return to employment.

[111]     Taking
into account the evidence in this case as well as the authorities cited I am
satisfied that an appropriate award for pain and suffering and a modest amount
for loss of housekeeping is $90,000.

[112]     Given my
findings with respect to the pre-accident complaints there shall be no reduction
for them.

Past Income Loss

[113]     The
plaintiff’s income for the past 20 years has been primarily from teaching although
she has generated some income from sales of her work and the conducting of art
workshops.

[114]     Her income
over the years 2003 to 2006 including teaching income and net business income
adjusted to add back home office expense averaged approximately $14,000 to
$15,000 per annum. In 2007, the year of the accident she had some work
immediately after the accident totalling income of approximately $810 but would
in any event have not worked that summer in the Roundhouse due to the civic
strike. Her employment thereafter was sporadic until she ceased working in late
2008.

[115]     On the
basis of the evidence her loss of income from the Arts Umbrella for the years
2007 to August 2012 after deducting social assistance, was approximately
$21,000. This takes into account the loss of income arising from the 2007 civic
strike. Her gross business income for the years 2003-2006 averaged
approximately $10,000 per annum. For tax purposes the net income was reduced by
a use of home expense. That expense averaged about $3,000 per annum. Adding
that sum for the years 2007 to 2011 and one half of 2012 results in $13,500 lost
net income. I therefore fix her past gross income loss at $34,500.

[116]     Her tax
returns reveal she paid little or no tax. I order that the past wage loss be
attributed to the year in which it was earned for the purposes of calculating
the net wage loss as required by the Insurance (Motor Vehicle) Act, R.S.B.C.
1996, c. 231 (Lines v. W & D. Logging Co. Ltd., 2009 BCCA 106
and Wittenberg v. Ellis, 2009 BCSC 1561).

Diminished Earning Capacity

[117]    
Assessment of loss of future earning capacity can be approached in two ways
as discussed in Perren v. Lalari, 2010 BCCA 140 at paras. 12 and 32:

[12]      These cases, Steenblok, Brown, and Kwei
illustrate the two (both correct) approaches to the assessment of future loss
of earning capacity. One is what was later called by Finch J.A. in Pallos
the ‘real possibility’ approach. Such an approach may be appropriate where a
demonstrated pecuniary loss is quantifiable in a measured way; however, even
where the loss is assessable in a measured way (as it was in Steenblok),
it remains a loss of capacity that is being compensated. The other approach is
more appropriate where the loss, though proven, is not measurable in a
pecuniary way. An obvious example of the Brown approach is a young
person whose career path is uncertain. In my view, the cases that follow do not
alter these basic propositions I have mentioned. Nor do I consider that these
cases illustrate an inconsistency in the jurisprudence on the question of proof
of future loss of earning capacity.

[32]      A plaintiff must always
prove, as was noted by Donald J. A. in Steward, by Bauman J. in Change,
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.

[118]     In Hooper
v. Nair, 2009 BCSC 862, Russell J. summarized the law respecting a future
loss of capacity claim as follows at paras. 119-125:

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

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

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

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

We must now gaze more deeply into the crystal ball. What
sort of career would the accident victim have had?  What were his prospects and
potential prior to the accident?  It is not loss of earnings, but, rather, loss
of earning capacity for which compensation must be made: A capital asset has
been lost: what was its value?

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

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

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

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

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

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

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

[119]     The
plaintiff submits that the evidence establishes that she is clearly disabled
from working as she has in the past although she is likely able to do some work
at home and there is the possibility of giving future workshops. The plaintiff
submits the sum of $40,000 for loss of capacity is appropriate given her modest
earnings when employed.

[120]     The third
party submits the plaintiff is 65 and that her problems with her foot were in
themselves sufficient to cause her to cease working. In addition they note that
as she aged her energy level would be reduced and as well future classes may
have not proceeded or she may have suffered from other illnesses. They submit
that the plaintiff has not proven a real and substantial income loss. They note
that the plaintiff is 65 and while there was the possibility she would work
past age 65 that would likely only be for a few more years and with age her
energy level would have decreased. The third party also argue that her foot
problems, allegedly unrelated to the accident, were sufficient to stop her from
working. They note other contingencies as well such as the plaintiff might
develop other illnesses and some classes might not proceed. The possibility of
income from the DVD lesson plans was remote as the evidence does not establish
that it would be profitable and to what extent. There was also the possibility
that it might still proceed if Mr. Stambler found the time to complete it. As a
result the third party submits no loss of earning capacity has been established
as the plaintiff has failed to prove a real and substantial income loss.

[121]     I find
that but for her voluntarily ceasing to work due to her injuries she could have
continued to work for the Arts Umbrella, essentially for as long as she wished
as they have no retirement policy and in the past they have had employees work
past normal retirement age. I am also satisfied that the plaintiff has
established that while her foot and leg pain were a factor they were only one
factor. Had they been the only impediment to work I find that she was able and
would have continued to be able to work teaching by relying on a stool. However,
the evidence establishes that her inability to work finds its roots in PTSD
suffered as a result of the accident. The evidence of both Dr. Karmini and Dr.
Shane is that the plaintiff will not be able to function and work as before.

[122]     The
evidence of Dr. Shane is that the plaintiff will not work again. Aside from
such work as she might do from home or from possible workshops I am satisfied
that the major source of her past income, that of teaching, particularly young
children, is no longer available to her.

[123]     I am
satisfied that the plaintiff would have worked past age 65. It is clear from
the evidence that her work was and is her life. She was employed not just for
financial reasons but because it was what she loved to do. This is not a case
of an individual working in order to retire. That is, she worked because it was
what she wanted to do.

[124]     In my view
the evidence establishes that the plaintiff would have continued to work,
earning a modest income as she has done in the past. Her evidence which I
accept and the medical opinions show that there is a real and substantial
possibility of a future income loss. Given her age and the nature of her work
the appropriate approach is to use her past wage earning capacity as a guide to
assessing her future wage loss.

[125]     I find
that it is probable that the plaintiff would have worked until at least age 70.
I am not satisfied for the reasons given earlier that her foot problems even if
unrelated to the accident would have prevented her from doing so. I find that
she would have continued to earn approximately $10,000 from teaching income
plus a modest amount from art sales. The net present value of an annual sum of
$10,000 from the trial date to the plaintiff’s 70th birthday is, according to
PETA Consultants Ltd.’s report, $47,100. I therefore assess her future loss of
capacity including a deduction for contingencies such as cancelled classes or
illness at $40,000.

Future Care

[126]    
Entitlement to compensation for future care costs requires medical
justification. In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, 30
A.C.W.S. (2d) 257 (S.C.), McLachlin J. addressed future care as follows at
paras. 172 and 199:

172 3. The primary emphasis in assessing damages
for a serious injury is provision of adequate future care. The award for future
care is based on what is reasonably necessary on the medical evidence to
promote the mental and physical health of the plaintiff.

199 The authorities
establish (1) that there must be medical justification for claims for cost of
future care; and (2) that the claims must be reasonable. …  [QL]

[127]     The
plaintiff claims for psychological services, massage therapy, occupational
therapy treatment, occupation therapy ergonomic assessment, yoga, vocational
counselling, driving intervention, medication, homemaking services and
medications.

Psychological Counselling

[128]     The
plaintiff seeks continued psychological counselling. Dr. MacKinnon had in
her report in 2008 stated that the plaintiff required continued psychological treatment
and that without it was likely she would “continue to feel hypersensitive and
exhibit symptoms of hyper-arousal. Due to the unpredictable nature of her
symptoms it is possible that her life may become even further restricted and
limited if these symptoms are left untreated.”  However, she had not seen the
plaintiff since 2008 and had no knowledge of her present condition.

[129]     Dr. Kamani
however did report as late as August 4, 2011 that the plaintiff needs access to
cognitive psychotherapy to manage PTSD and physical/emotional manifestation of
anxiety as recommended by a psychologist.

[130]     Dr. Shane
was of the view that “episodic psychotherapy therapeutic support would be
helpful to her.”  On cross-examination he noted that she was more susceptible
to stress which could precipitate an issue in the future. He did not recommend
further psychotherapy leaving that to her choice and the recommendations of her
family physician.

[131]     I am
satisfied that such treatment is medically necessary.

[132]     The third
party suggests that the necessary counselling can be obtained through MSP covered
services at St. Paul’s. However, the only evidence that that is the case are
questions put by the third party to various medical witnesses none of whom were
familiar with the details of such services.

[133]     Ms.
Remtulla recommended a residential program in Ontario to address her traumatic
stress at a cost of $32,124 to $48,476. In my opinion the evidence does not
support the need for such a program. I am however satisfied that a community
based psychological treatment program for 20-24 sessions at $175 each to
include Dr. Kamani’s recommendation of additional EMDR sessions. In her latest
report Dr. Kamani did not repeat her recommendation for neurofeedback
hence I infer it is no longer recommended.

[134]     I award
the sum of $4,200 for the psychological sessions.

Massage Therapy

[135]     The evidence
of Dr. Kamani is that as of 2010 the soft tissue injuries were mostly resolved.
In her report of November 5, 2008 she said she supported a referral to massage
therapy and the plaintiff did obtain such therapy. The evidence of the
plaintiff respecting her physical injuries as of trial was that she was no
longer in pain from soft tissue injuries arising from the accident. Therefore I
do not make an award for massage therapy.

Occupational Therapy Treatment

[136]     The
request for occupational therapy treatment to address a more productive daily
routine and pacing strategies is not supported by the medical evidence. No sum
is awarded under this heading.

Occupational Therapy Ergonomic Assessment

[137]     This
request relates to a proposed ergonomic assessment to review the plaintiff’s
work environment at home and to provide recommendations for suitable equipment
selections, work posture/body mechanics and other strategies to assist her in
managing her symptoms while performing her art work. Again, the medical
evidence does not support an award under this heading.

Vocational

[138]     Given the
plaintiff’s age and the prognosis of the lack of future employment this claim
is not supported by the evidence.

Yoga

[139]     The
medical evidence does not support this claim.

Driving Intervention

[140]     As noted
earlier the plaintiff has not been able to return to driving. Her vehicle was a
write off and she has not replaced it. That is in part due to her lack of funds.
Ms. Remtulla recommends that she take part in “off road driving remediation as
well as on road driving — retraining”. She recommends attending on a company
such as Community Therapists to provide driving intervention for individuals
with a diagnosis of PTSD. This involves an assessment plus off road and on road
sessions. The proposed cost is $3,775 to $6,525. The third party suggests that
is “overkill” and that all that is required are regular driving lessons as they
submit that all driving instructors seek to build confidence. The third party
agrees that some form of driving instruction might be necessary but that the
cost should not exceed $1,000. The third party also notes that there is no
medical opinion that this level of assistance is recommended and that the
opinion of Ms. Remtulla that she has seen others benefit from it is not
sufficient. I note however that Dr. MacKinnon recommends EMDR treatment for the
plaintiff’s driving fears and suggests professional driving lessons.

[141]     Therefore
the third party does not dispute that the plaintiff requires assistance to
return to driving. I find in any event that she is currently unable to drive
and will require assistance to do so. The question is how that is to be
achieved.

[142]     The
evidence of Dr. MacKinnon was that psychological counselling and EMDR was
effective. It appears that the plaintiff is therefore amenable to psychological
counselling. There is no evidence that the average driving instructor is
trained to deal with symptoms of PTSD.

[143]     As a
result I award the sum of $4,000 in order for the plaintiff to avail herself of
the suggested specialized driver training for individuals suffering from PTSD.

Medication

[144]     The
plaintiff claims for a number of medications she has been prescribed as well as
for certain natural remedies. There is no medical evidence supporting the
naturopathic remedies. The only medications medically supported are Ativan
(taken an average of 3 times a week) and Zopiclone (1/2 tablet taken an average
of 3 times a week).

[145]     Ms. Remtulla
states that the cost of the Ativan is $12 for 30 tablets and of the Zopicline
is $25 for 30 tablets. The annual cost appears to be under $150. While the
plaintiff is currently on welfare, once she no longer is, she will be
responsible for such costs except to the extent they may be covered through
Pharmacare.

[146]     It was
also not clear how long such medications would be required. In light of the
above I allow the sum of $500 to cover medication costs.

Homemaking

[147]    
The British Columbia Court of Appeal in McTavish v. MacGillivray,
2000 BCCA 164, addressed the issue of housekeeping capacity as follows at
paras. 68 and 69:

[68]      In my view, when housekeeping capacity is lost, it
is to be remunerated. When family members by their gratuitous labour replace
costs that would otherwise be incurred or themselves incur costs, their work
can be valued by a replacement cost or opportunity cost approach as the case
may be. That value provides a measure of the plaintiff’s loss. Like the trial
judge I would prefer to characterize such compensation as general damages
assessed in pecuniary terms, reserving special damages for those circumstances
where the plaintiff actually spent money or incurred a monetary liability,
although I do not wish to state a settled view on that question in the absence
of full submissions as to the consequences of the distinction, if any.

[69]      A plaintiff who
performed the tasks with difficulty or functioned with the tasks undone and
never to be done will be compensated for that loss under the head of pain and
suffering and loss of amenity, just as she would if she were to go to work every
day, earning her regular wages, but suffer in the course of mitigating her
loss.

[148]     The
plaintiff has not shown that she is out of pocket for housekeeping expenses. She
is less able to carry out such activities, they take longer and she has
limitations in performing certain tasks, particularly those of a yearly
maintenance nature such as window cleaning. While I accept her general energy
level has suffered any limitations respecting her ability or stamina to carry
out household chores as noted earlier are to be compensated under the heading
of pain and suffering as the evidence does not support a separate award under
this heading.

Special Damages

[149]     Special
damages relating to medical treatments including psychological sessions,
massage therapy, physiotherapy and other treatments as well as prescriptions
were agreed to at $7,190.79.

Summary

[150]     In summary
the plaintiff is awarded the following:

a)    Non-pecuniary
damages         $90,000.00

b)    Past wage loss                       $34,500.00

c)     Future
loss of capacity            $40,000.00

d)    Cost of future
care                 $8,500.00

e)    Special damages                    $7,190.79

Total                                      $180,190.79

[151]     The
plaintiff shall have her costs unless there are circumstances relevant to costs
of which I am not aware.

“Punnett
J.”