IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120814

Docket: M111319

Registry:
Vancouver

Between:

Michelle Peragine

Plaintiff

And

Elia Serena

Defendant

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

INTRODUCTION

[1]          
This action arises out of a motor vehicle accident that occurred on
Friday, March 13, 2009 at the intersection of Willingdon Avenue and Pender
Street in Burnaby B.C.

[2]          
The plaintiff, who at the time of the accident was an 18 year old “new”
driver, was driving her father’s 1984 Volkswagen Rabbit convertible southbound
along Willingdon Avenue.  The cross street, Pender Street, was controlled by a
stop sign in both the easterly and westerly directions.  The defendant was driving
her 1996 Pontiac Grand Prix westbound along Pender St. and had stopped at the
stop sign waiting for the traffic on Willingdon Ave. to clear so that she could
cross it and continue westbound along Pender St.

[3]          
Facing the defendant as she was stopped at the stop sign was another
sign, immediately below the stop sign, which prohibited traffic from turning
left (southbound) or from proceeding westbound directly across Willingdon
between the hours of 3:00 pm and 6:00 pm.  There is an issue in this case as to
whether the accident took place shortly before or shortly after 3:00 pm.

[4]          
The defendant’s vehicle proceeded into the intersection and attempted to
cross Willingdon Ave. so that she could continue westbound along Pender St. 
The left front of the plaintiff’s vehicle collided with the right front of the
defendant’s vehicle.  The impact was violent enough to spin the plaintiff’s
vehicle around by 70-80 degrees and push it to the west into the curb lane.

[5]          
The plaintiff alleges that she suffered various injuries, the most
serious of which was to her left knee.  The plaintiff alleges that prior to the
accident she was a talented athlete who had a promising future in both track
and field and soccer.  She says that, as a result of the accident, she has been
unable to pursue track and field activities and continues to suffer pain and
discomfort in her knee.  She claims general damages for loss of enjoyment of
life and loss of income earning capacity.

[6]          
Both liability and damages are in issue.

THE PLAINTIFF’S CASE

[7]          
The following witnesses gave evidence as part of the plaintiff’s case:

Rocco Peragine (“Rocco”)

[8]          
Rocco is the plaintiff’s father.  He was very much involved in his
daughter’s various sports activities while she was growing up, including track
meets, soccer games, practices and tournaments.  He described them in a general
way.

[9]          
He described Michelle as a fit and naturally gifted athlete who excelled
in her school’s sports activities.  Her track and field events were the 100 meters,
200 meters, 400 meters and high jump.  To this day, she still holds the
record for the 400 meters in her age group.  Throughout elementary and high
school, she won many medals and other awards and was mentioned in various
newspapers for her achievements.

[10]       
In Grade 12, there was a conflict between the school’s track and field
and soccer schedules.  The school soccer team had a good opportunity to win the
Provincial High School Soccer Championship so Michelle decided to focus on
soccer that year rather than track and field.  The team did indeed win the
Provincial Championship.

[11]       
After high school, during her first year at Simon Fraser University
(“SFU”), the plaintiff decided to once again focus on track and field.  She was
eager to do so.  She drew up her own training program and followed it.  She was
very disciplined.

[12]       
Rocco testified that, in contrast to her level of activity before the
accident, his daughter was markedly less active after the accident.  She ices
her leg often and, initially at least was “stuck in the house”.

[13]       
On cross-examination, the statement that he and his daughter gave to
ICBC five days after the accident was put to him.  It was signed by both of
them.  The statement did not refer to any injury to the plaintiff’s knee. 
Rather, it limited her injuries to her neck, left shoulder and “left side”. 
The statement went on to set out that the plaintiff did not pursue soccer at a
high level because she wanted to concentrate on her studies and to keep
working.

[14]       
Rocco admitted on cross-examination that his daughter had suffered an
injury to her left knee in 2005 during a soccer game.  However, he stated that
she only missed one game as a result.  That was the only other injury that
Rocco remembers the plaintiff suffering prior to the accident.

[15]       
Rocco admitted on cross-examination that, as far as he is concerned, his
daughter’s life now is not that much different than it was before the
accident.  She continues to do chores at home and seems to be able to do them
without difficulty.  She continues to have an active social life and live life
as any normal 21 year old might be expected to.

[16]       
Rocco was a credible witness and I accept his evidence.

Constable Londersele (RCMP)

[17]       
A call about the accident was received by 911 emergency at 3:14 pm. 
Constable Londersele, who was on duty at the time in the Burnaby detachment’s
traffic division, was dispatched at 3:18 pm and arrived at the accident scene nine
minutes later at 3:27 pm.

[18]       
He inspected the vehicles and took statements from both the plaintiff
and the defendant.  Both advised him that the accident had occurred at
approximately 3:00 pm.  His impression was that any injuries that had been
suffered were minor.  He testified on cross-examination that, had the plaintiff
complained to him of a sore knee, he would have made a note of it.  There was
no such note.

[19]       
The location of the damage to the two vehicles was significant to him. 
The southbound plaintiff’s vehicle was damaged on the front left side.  The
westbound defendant’s vehicle was damaged on the right side in front of the
front tire, from which Cst. Londersele concluded that the defendant’s vehicle
had not been very far into the path of the plaintiff’s vehicle at the time of
the collision.  After reviewing the scene, Cst. Londersele concluded that the
accident had been caused by the defendant entering the intersection and attempting
to cross Willingdon Ave. and failing to yield the right of way to the
plaintiff, contrary to section 175(1) of the Motor Vehicle Act R.S.B.C. 1996
c. 318.  He issued a Violation Ticket to the defendant.

[20]       
He considered citing the defendant as well for attempting to cross
Willingdon Ave. between the hours of 3:00 pm and 6:00 pm but, as the accident
had happened so close to 3:00 pm, he decided to give her the benefit of the
doubt and declined to do so.

[21]       
Without the benefit of his notes, he was unable to recall much of the
accident and his memory was refreshed by reviewing his notes and photographs of
the scene.  However, he did recall without the benefit of his notes that the
defendant was very upset at having been issued a ticket and argued with him
about it.  This stood out in his mind.

[22]       
Constable Londersele was a credible witness and I accept his evidence.

Michelle Peragine (“Michelle”)

[23]       
Michelle was born on September 27, 1990.  She was 18 years of age and a
relatively new driver at the time of the accident.  She was 21 at the time of
the trial.  She had taken various driver training courses, including a lesson
on how to drive a vehicle equipped with a manual transmission.  She testified
that she felt comfortable driving such vehicles.

[24]       
Throughout elementary and high school, Michelle was known as a good
athlete and was involved in several sports activities, primary among them
soccer and track and field.  She received many medals and other awards for her
achievements.  From Grades 8 to 12 she attended St. Thomas More Collegiate, a
Catholic school known for its sports program.  She had the reputation as being
the “fastest girl in school”, as she routinely beat older girls on the track.  Of
her track specialties noted above, her favourite was the 400 meter individual
event in which she excelled.  She spent her summers competing in track meets
and usually came second to a girl named Sabrina who was a faster runner in the
100 meter and 200 meter events.  Sabrina subsequently won a full track and
field scholarship to Stanford University.

[25]       
She played both high school and “league” soccer.  In 2005 she injured
her left knee during a soccer game after colliding “knee-on-knee” with an
opposing player.  She had one session of physiotherapy and only missed one
soccer game.  That injury fully resolved and it never bothered her again.

[26]       
In Grades 11 and 12, Michelle decided to concentrate on soccer because
her high school team had a good chance to win the Provincial High School Soccer
Championship.  In her Grade 12 year, her high school team won the Provincial
High School Soccer Championship.  She did not receive or even pursue any
scholarships at any post secondary institution.

[27]       
In the fall of 2008, Michelle enrolled in the arts program at SFU.  Her
best friend was also enrolled and was playing soccer on the SFU women’s team.  During
the fall semester in 2008, Michelle took four courses and completed all
required papers and exams.  She described her marks as “average”.  At this time
she was working part time at the Eagle Creek Golf Course as a server and at
Boys’ Co. in the Metrotown mall as a sales clerk.

[28]       
Michelle testified that, by January 2009, she very much missed not being
a part of a team.  She felt that she wasn’t being pushed.  She missed track and
field which had always been a part of her life that she very much enjoyed.  She
missed competing.  She decided to return to track and field.   She prepared a
training/workout program and by early February 2009 had begun regularly working
out, running and training.  Her objective was to try to get on to the
collegiate track and field team at SFU or, failing that, at the University of
British Columbia or the University of Victoria.

[29]       
During her cross-examination, she conceded that her goal was not to
pursue track and field at a high level but rather to concentrate on her studies
and keep working.

[30]       
During the spring semester, she again was taking four courses and, prior
to the accident on March 13, 2009, had completed all required papers and exams.
She was doing “fine” in her studies.  Her marks, again, were “average”.

[31]       
Shortly before 3:00 pm on March 13, 2009, the plaintiff was returning
home after having dropped off a friend.  She was driving her father’s
Volkswagen Rabbit convertible.  There was a small dog in the vehicle who was
lying on the front passenger seat.  She testified that she drove with the
driver’s seat fairly close to the steering wheel such that the bottom of the
dashboard panel was approximately 10 inches from her knees.  She was comfortable
driving in that position.

[32]       
She was wearing her seat belt.

[33]       
She had been travelling east on Hastings St.  She turned south on to
Willingdon Ave.  That intersection is approximately 100 meters north of the
intersection of Pender St. and Willingdon Ave.  She was travelling southbound
in the lane closest to the center line, having immediately moved to that lane
from the curb lane which she had been in after turning on to Willingdon Ave. 
As she had just made the turn from Hastings St. her speed was only
approximately 10 to 15 kilometers per hour.  She was in second gear.  There was
little or no other traffic southbound.  However, northbound traffic along
Willingdon Ave. was stopped and solidly backed up in both lanes from Hastings St.
to south of Pender St.  There was a gap in the traffic at the Pender St.
intersection.  The time was approximately 3:00 pm.  She saw two other
vehicles move through the gap in the traffic and cross Willingdon Ave. ahead of
her.  She was approximately a one-half car length from the intersection when
the defendant’s vehicle suddenly came through the gap in the traffic.  She did
not see the defendant’s vehicle until instantly before the collision and had no
warning that a collision was about to happen.  She testified that the force of
the collision resulted in her vehicle being spun around approximately 90 degrees
into the southbound curb lane, coming to rest in the location shown in the
photos taken at the scene by the RCMP (Exhibit 1, Tab 6).  Her vehicle remained
there until it was towed.

[34]       
The impact of the collision resulted in her body being pushed forward
and jolted to the left.  Her head hit the steering wheel and she sustained a
small gash on her forehead, although there was no bruising.  She does not
remember whether her left knee hit anything.

[35]       
She was unable to open her driver’s door without the assistance of a
witness who forced it open from the outside.

[36]       
She estimated that the police arrived at the scene approximately five to
ten minutes after the collision had occurred.

[37]       
She testified that she was “freaked out”, hysterical, shocked and very
emotional after the accident.  Ambulance attendants checked the plaintiff at
the scene and encouraged her to go to the hospital, but she declined.  She did
not complain of knee pain.

[38]       
Later that afternoon, her left knee became swollen although she did not
think much of it.  However, she did begin to complain of a headache, sore
shoulder, neck and lower back.  Her mother took her to the hospital emergency
where she was examined and X-rays were taken.  She was given a neck brace, a
sling for her left arm and shoulder and Ibuprofen for her headache.  These
complaints subsided within a few weeks and were fully resolved within
approximately one month.  She did not mention any knee pain while at the
hospital.

[39]       
The accident caused her to miss a few days of work at Boys’ Co., where
she worked as a sales clerk.  She stopped her training program.  She continued
attending her classes at SFU.

[40]       
She was able to write only one of her final exams in April 2009.  She
testified that she could not concentrate or study.  Her mind was “somewhere
else” and she had no motivation for her schooling.

[41]       
She did not begin to feel any pain or discomfort in her left knee until
approximately three weeks later.  It then began to get sore.  Pain would be
triggered when she was standing or walking.  The knee felt “hot inside” with a
burning sensation.  It was tender to the touch.  She was elevating and icing
her knee but there was no improvement.  At times, her knee felt like a balloon
about to explode.  She was examined by her family physician who referred her to
a physiotherapist.  On July 27, 2009 she again consulted her family physician
who noted that she was “having ongoing…L knee pain…after prolonged standing
develops L knee swelling”.

[42]       
After 6 physiotherapy sessions (the last of which was on August 13,
2009), the pain in her knee was even more frequent and intense.  On December 4,
2009, her family physician referred her to Dr. Kokan, an orthopaedic surgeon. 
His office advised that he would see her after an MRI had been performed.  Michelle
waited approximately eight months for the MRI.

[43]       
While awaiting her MRI, Michelle enrolled in a Legal Assistant Course at
Vancouver Community College.  She is now working as a legal assistant at a
small Vancouver law firm.

[44]       
Michelle’s first consultation with Dr. Kokan was on November 15, 2010.  The
MRI was normal and did not reveal anything untoward with her knee.  Dr. Kokan gave
her the option of arthroscopic surgery.  Her parents supported her decision to
have the surgery.  That surgery took place in July 2011.  Her recovery from the
surgery was uneventful, however the symptoms in her knee did not abate.  She
testified that, if anything, the surgery made her pain worse.  On
cross-examination her examination for discovery transcript was put to her in
which she was asked whether she has had any improvement with her left knee. 
She responded as follows:

A.         Since the surgery, yes.  It’s still not 100
percent, but it is better than it was before the surgery.

A.         It’s helped to a
certain extent.  The knee is not 100 percent, but it has helped me.

[45]       
She was also asked during her examination for discovery whether, since
she last saw Dr. Kokan, she feels she’s had improvement in her left knee.  Her
answer was “Yes”.

[46]       
She continues to have intense pain in her knee, most notably when going
up or down stairs and walking for extended periods.  On those occasions she
needs to sit and rest her knee before she can continue.  She described her pain
as varying in intensity day to day.

[47]       
Counsel for the defendant made much of the fact that Michelle did not
fully follow through on various exercises and exercise programs that had been
recommended by Dr. Kokan.  Michelle’s response was “I wasn’t able to do those
exercises”.

[48]       
Michelle has a boyfriend of two and a half years.  He attended SFU with
a football scholarship and continues to be active in sports.  Michelle is
unable to enjoy sports activities with him due to her knee.  Her intention is
to eventually marry and have a family.  She worries that she will be unable to
help coach her children in the sports that she is passionate about and which
were such a big part of her life.

[49]       
When she was shown the myriad of medals and ribbons she had won, she broke
down.  They reminded her of good times in her life which she now feels she has
been forced to give up.  She is genuinely proud of her soccer and track and
field accomplishments.

[50]       
As mentioned, at the time of the accident, Michelle was working as a
sales clerk at Boys’ Co.  She lost $600 in wages as a result of the accident.

[51]       
Michelle is currently working as a legal assistant at a small Vancouver
law firm.  She currently earns $32,000 per year.  She enjoys her job and plans
to stay for at least a few years.  She would like to take the two year
paralegal night school course offered by Vancouver Community College.  She lost
$339.15 in wages from the law firm as a result of the accident.

[52]       
I found Michelle to be a credible and reliable witness.  She did not
exaggerate the extent of her injuries, either to her doctor or to the Court.  I
have no hesitation accepting her evidence regarding the pain and suffering her
left knee has caused her and the effect it has had on her daily life.  I am
satisfied that the answers she gave during her examination for discovery
referred to above were given honestly at the time and that she did believe that
there had been improvement on that day.

Winston Reckord (“Coach Reckord”)

[53]       
For the past 25 years, Coach Reckord has been a coach with a track and
field club in Burnaby called the Burnaby Striders.  Michelle joined the Burnaby
Striders when she was 11 or 12 years old and stayed until she was 15 years
old.  Coach Reckord was her track and field coach throughout that period of
time.

[54]       
He described Michelle as an excellent sprinter.  He confirmed that
Michelle was particularly good at the 400 meter individual event.  He
considered that she was the best 400 meter sprinter in the club while she was
there.  In Coach Reckord’s view, Michelle had the skill, discipline and
commitment to possibly go on to become a member of the British Columbia or
Canada track and field teams.  He also thought that she had the potential to go
on to get a university scholarship in track and field as other Burnaby Striders
sprinters had done.  However, on cross-examination he conceded that he would
have expected anyone with such aspirations to have stayed in the Burnaby
Striders or an equivalent organization.  He was disappointed when Michelle left
the club when she was 15.

[55]       
He agreed that it is much more difficult to become a member of a
university track and field team as compared with a high school track and field
team.

[56]       
He also agreed that he has not seen Michelle for six years and that he
is unable to predict what her prospects in track and field were when she was 18.

David Mattiazzo (“Coach Mattiazzo”)

[57]       
Coach Mattiazzo was Michelle’s high school track and field coach.  He
described St. Thomas More Collegiate as a relatively small school (676 students)
with a strong sense of community.  Most students are involved in sports and
athletics.

[58]       
He described Michelle as a very successful high school athlete and one
of the “poster girls” in the school.  He testified that, in his view, Michelle
had a lot of talent in track and field, had a great work ethic and was very
dedicated and committed to training.  He confirmed that Michelle stopped track
and field in Grade 12 in order to play soccer, however his understanding was
that she was simply taking a breather for one year in order to participate with
the soccer team that had a good chance of winning the Provincial High School Soccer
Championship.

[59]       
He confirmed that university athletic scholarships are usually offered
to students during their Grade 12 year while they are on a high school or club
team.  Michelle was not offered any scholarship.

Carlo Zavarise (“Coach Zavarise”)

[60]       
Coach Zavarise has been a teacher at St. Thomas More Collegiate for the
past 23 years.  Michelle was a student in several of his classes.  He was also
Michelle’s soccer coach during her Grade 10, 11 and 12 years.

[61]       
He described Michelle as a “very quick left sided” soccer player and
generally appreciated her soccer abilities.  In his experience such left footed
players with speed are rare in soccer.  He never witnessed her having any
problem with her left knee – nor did she ever complain about her left knee.

[62]       
Twelve or so of the girls Coach Zavarise has coached went on from St.
Thomas More Collegiate to soccer scholarships in college and university.  He
compared Michelle to those girls and testified that she would was within the
top six to eight of those 12 girls.  He was surprised that Michelle did not
play soccer at the post-secondary level.  He was unable to say whether or not
Michelle was skilled enough to play soccer at a U.S. college or university.

[63]       
He confirmed that, to his knowledge, Michelle never received or even
pursued a scholarship while she was in high school.  He did not recall any
discussions with Michelle regarding her career aspirations.

Dr. Peter Kokan

[64]       
Dr. Kokan is an orthopaedic surgeon.  Michelle was referred to him by
her family physician in December 2009 after she had attended six physiotherapy
sessions and had been told by her physiotherapist that her knee was getting
worse rather than better.  Michelle had had an MRI of her knee in October
2010.  The MRI was “normal”.

[65]       
Michelle’s first consultation with Dr. Kokan was on November 15, 2010. 
He examined Michelle’s knee but, on that day, could not find any objective
evidence of a significant problem with it.  He found no visible swelling or
asymmetry.  There was no visible quadriceps or calf atrophy.  She was able to
squat fully and perform the “duck walk” without significant discomfort.  In the
standing position, the Thessaly test was negative.  She had full range of
motion in her left knee.  She had no medial joint line pain or pain along the
medial patellofemoral joint.  In short, he found no objective evidence that
there was a significant problem with Michelle’s knee.  He could not explain why
she was experiencing pain.  He mentioned that arthroscopic surgery could be
considered in the future but did not feel that it would find anything untoward. 
He suggested that, has it had only been eight months since the accident, she
should first exhaust other options, such as acupuncture or prolotherapy,
although he didn’t feel strongly that these other options would help.

[66]       
Michelle returned to see Dr. Kokan on May 2, 2011.  She complained that
her left knee was constantly painful.   His examination of her knee revealed
that the pain was mostly under the lateral joint line anteriorly.  He palpated
the medial synovial plica in her left knee.  That contributed to her pain.  He
told her that, although surgery was an option, he may not find anything and
there was a possibility that there would be ongoing pain.  She advised him that
she had considered what he had told her about the risks and benefits of surgery
and that she wanted to go ahead with it.  In his words, she wanted to get to
the bottom of it.

[67]       
The surgery took place on July 28, 2011 at Burnaby General Hospital. 
Dr. Kokan found a very large medial synovial plica as well as some redness
within it.  He concluded that this was at least one of the sources of
Michelle’s pain.  The plica was removed.  The rest of the joint cartilage in
the knee and both medial and lateral menisci were normal.  No other
abnormalities were found.

[68]       
Dr. Kokan saw Michelle again on February 23, 2012.  She was still
complaining of pain and throbbing in her left knee, however his examination of
her revealed no obvious structural or surgical problems.  He could not explain
the cause of the pain other than the possibility of ongoing inflammation deep
inside the knee following surgery.

[69]       
He provided a medical legal report dated May 3, 2012.  It was conceded
by counsel for the defendant that he was an expert in his field with a
specialty in knee surgery.  He was qualified as such.

[70]       
Dr. Kokan concluded that Michelle’s pain in her left knee was and is
caused by the medial synovial plica (which was removed during the surgery),
patellofemoral pain syndrome and pes anserinus bursitis.  It is his opinion
that the motor vehicle collision on March 13, 2009 caused the onset of her left
knee pain, which irritated the medial synovial plica.  He acknowledges that
there is controversy in the literature and within his profession regarding the
function of the synovial plica and its contribution to symptoms.  Some orthopedic
surgeons, including Dr. Kokan, are of the view that it can make one susceptible
to pain.  Others are of the opinion that the plica has minimal, if any, impact
on pain.  Dr. Kokan concluded that Michelle’s plica, which was in a vulnerable
position, being suddenly impacted caused direct trauma and caused her to
experience the pain she had reported.  Moreover, the blunt impact of the
accident also transmitted forces to other structures within her knee, including
the patellofemoral joint.

[71]       
Dr. Kokan also acknowledged that patellofemoral pain syndrome could be
caused by a person being inactive and then suddenly becoming active.

[72]       
In Dr. Kokan’s opinion, it is likely that Michelle could continue to
experience her pain symptoms for between two to three years.  He expects that
she will continue to experience difficulties with kneeling, walking, standing
and negotiating stairs.  He recommends that Michelle limit her sports to
non-impact activities such as swimming or cycling.

[73]       
In Dr. Kokan’s opinion, Michelle’s knee injury five years ago did not
contribute to her current symptoms.  It was an injury to her MCL (medial
collateral ligament) that would have healed very quickly.

[74]       
From his general interaction and dealings with Michelle, Dr. Kokan was
confident that she was not exaggerating her symptoms and was not malingering. 
He was not surprised that Michelle did not initially report knee pain to the
hospital or to ICBC or did not remember a direct impact to her knee.

[75]       
I accept Dr. Kokan’s description of Michelle’s symptoms as described in
his report.  I also accept his opinion that the pain in her left knee was
caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have
occurred during the accident but the pain associated with that injury not to have
manifested itself for three weeks to a month.

THE DEFENDANT’S CASE

[76]       
The Defendant called the following witnesses as part of her case:

Elia Serena (“Elia”)

[77]       
Elia was the 67 year old driver of the other vehicle.  She is a
delightful mother of six children and a grandmother of two.  She has had a
valid B.C. driver’s license for some 46 years.  She has never before been in a
motor vehicle accident or cited for a motor vehicle offence other than failing
to wear a seat belt.

[78]       
At the time of the accident she was employed as a teller at a branch of
Vancouver City Savings located on Hastings St. one block east of Willingdon
Ave.  Her shift is from 9 am until 3 pm.  She closes her teller’s
window at approximately 2:45 pm each day.  She then performs her
“balancing” function and is thereafter free to leave.  On March 13, 2009 she
parked her car facing west on Pender St. (a short block south of Hastings St.  That
afternoon she closed her teller’s window at approximately 2:45 pm and
completed her balancing very quickly.  She departed her work before 3 pm,
walked to her car and proceeded west along Pender St. to the intersection of
Willingdon Ave. where there is a stop sign as well as a sign prohibiting left
turns or proceeding through Willingdon Ave. between the hours of 3 pm and
6 pm.

[79]       
She was very familiar with this intersection.

[80]       
She came to a complete stop.  Northbound traffic along Willingdon Ave.
was stopped and backed up past the intersection in both northbound lanes. 
There was little traffic in the southbound lanes.  There was a gap in the
northbound cars approximately the width of Pender St.  A car ahead of her
proceeded through the gap across Willingdon Ave. and proceeded westbound along
Pender St.

[81]       
She glanced at her watch.  It was not quite 3 pm.  She looked both
to her left and to her right.  On her right she could see that the traffic
light at Hastings St. was red for vehicles travelling northbound.  She
testified that she could see “a bit but not much” of the southbound lanes and
traffic.  She did not see any southbound traffic.  After a short period of time
(she said during her evidence in chief that it was two to three seconds but
during her examination for discovery had said it was two minutes) she proceeded
through the gap in the northbound traffic intending to carry on westbound along
Pender St.  She estimated that she was travelling at approximately 10 to 15 kph
when she crossed the center line.

[82]       
She did not see Michelle’s vehicle until the collision.  She testified
that “had I seen it, I would have put on the brakes”.  The front of her vehicle
was in the southbound center lane at the time of the collision.

[83]       
On cross-examination she agreed that a red traffic light at Hastings St.
meant that the east/west traffic along Hastings St. would have had a green
light, that it would be expected that traffic would turn from Hastings St.
south along Willingdon Ave. and that a reasonable driver would expect traffic
southbound along Willingdon Ave.  That, she said, is “why I went slow”.

[84]       
She agreed that the plaintiff’s vehicle had the right of way and that
she did not.  However, she simply did not see the plaintiff’s vehicle before
the collision.  In her words, “it happened so fast”.

[85]       
Elia was a truthful and credible witness.  I have no difficulty
believing her testimony.

Dr. Richard Kendall

[86]       
Dr. Kendall is an orthopaedic surgeon who conducted an independent
medical examination of Michelle and provided a medical-legal report to the
defendant dated March 7, 2012.

[87]       
The plaintiff conceded that Dr. Kendall was an expert in the field of
orthopaedic surgery with a specialty in knee surgery.  He was qualified as
such.

[88]       
Dr. Kendall’s opinion is that Michelle’s knee symptoms are the result of
patellofemoral syndrome, a painful condition thought to arise from abnormal
articulation between the patella (kneecap) and the corresponding groove of the
femur upon which it moves.  Pain is the primary symptom and often gets worse
with sitting with the knees flexed or going down stairs.  Causes are varied,
but include a blunt trauma to the knee.  Dr. Kendall typically sees this
syndrome in young women and people who have not been active but who become
active over a short period of time.  Symptoms exist despite normal MRI readings
and no pathology within the knee being found during arthroscopy.

[89]       
Dr. Kendall testified that patellofemoral syndrome can be very difficult
to treat but recommends that Michelle be referred to a physiotherapist who is
familiar with the treatment of patellofemoral disorders.  He was also of the
opinion that local treatment with ice and heat and perhaps a patellar tracking
sleeve or wrap might be beneficial.  He advised against further surgical
procedures.

[90]       
Dr. Kendall testified that, while there is no “quick fix” he was
strongly of the view that Michelle’s knee condition would respond to rest
followed by a graduated activity program including stretching and strengthening
and, give time and effort, she would be able to return to sporting activities. 
Assuming Michelle has proper guidance and undertakes a reasonable
rehabilitation program, he expects that she will recover within 12 to 18
months.  He does not expect there to be any degeneration of the knee.

[91]       
Dr. Kendall does not believe that Michelle will have any restrictions to
her ability to function on the job, as long as she has an opportunity to stand
up and stretch her legs.

[92]       
On cross-examination, Dr. Kendall agreed that different orthopaedic
surgeons have varying theories as to the cause of, and may reasonably have
different opinions as to the treatment for, patellofemoral syndrome.  He was
strongly of the view that people experiencing this syndrome need to be trained
to exercise correctly and continue despite the pain in order to recondition the
knee.  He agreed, however, that there is a fine line that needs to be found for
every patient between doing too little and doing too much.

[93]       
Dr. Kendall did not criticize Michelle for having arthroscopic surgery. 
His only criticism is that she appears to have “fallen through the cracks”,
that her current exercise regime meets no more than the “minimum requirements”
and that someone needs to provide her with proper guidance to come up with an
appropriate rehabilitative program for her.  Although the precise reason for
her knee pain has not been identified, Dr. Kendall was confident that
rehabilitative interventions do help.

[94]       
When asked whether, had he known that Michelle’s physiotherapist had
told her that her physiotherapy treatments were making her condition worse, he
might have changed his opinion, he said he might have, depending upon what the
physiotherapist had been doing to her.  He agreed that it is possible her
physiotherapy was causing at least part of Michelle’s problems, but if that was
the case, the treatment should be re-examined, not stopped altogether.  He
agreed, however, that there are no guarantees that such a program will resolve
her problem.

ANALYSIS

Liability for the Collision

[95]       
Section 175 of the Motor Vehicle Act (the “Act”) provides as
follows:

175      (1) If a vehicle that is about to
enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle
must yield the right of way to traffic that has entered the intersection on the
through highway or is approaching so closely on it that it constitutes an
immediate hazard, and

(b) having yielded, the driver
may proceed with caution.

(2) If a vehicle is entering a through highway in
compliance with subsection (1), traffic approaching the intersection on
the highway must yield the right of way to the entering vehicle while it is
proceeding into or across the highway.

[96]       
The defendant argues that she had stopped at the stop sign, looked for
approaching traffic, saw none and proceeded.  She argues that s. 175(2)
therefore applies and it was up to the plaintiff to yield the right of way to
her.  She relies on the decisions of this court in Sangha v. Chen, 2012
BCSC 749, Gautreau v. Hollige, 2000 BCCA 390; and Nonis v. Granata,
2010 BCSC 1570.

[97]       
The court in Sangha found that, although the plaintiff remained
the dominant driver, he had a duty to exercise reasonable care even if those
around him did not respect his dominant position (para. 36).  The court applied
s. 175(2) of the Act.  It cited the decision of the British Columbia
Court of Appeal in Salaam v. Abramovic, 2010 BCCA 212 in which it was
stated that, in addition to statutory duties, all drivers are subject to common
law duties:

In the end, a court must determine whether, and to what
extent, each of the players in an accident met their common law duties of care
to other users of the road.  In making that determination, a court will be
informed by the rules of the road, but those rules do not eliminate the need to
consider the reasonableness of the actions of the parties.  This is both
because the rules of the road cannot comprehensively cover all possible
scenarios and because users of the road are expected to exercise reasonable
care, even when others have failed to respect their right of way.  While s. 175
of the Motor Vehicle Act and other rules of the road are important in
determining whether the standard of care was met, they are not exclusive
measures of that standard.

[Sangha at para. 30]

[98]       
The defendant cites Gautreau for the proposition that the known
presence of a gap in traffic stopped at an intersection (in the Gautreau case
it was a flashing green light indicating the presence of an cross walk)
together with having observed two other vehicles cross Willingdon Ave. through
the gap before the collision occurred ought to have put the plaintiff on
warning that a third vehicle (the defendant’s) might attempt the same thing.  I
note that, in Gautreau, the court had the benefit of an eyewitness
account of the dominant driver’s conduct and found that the dominant driver had
been oblivious to the obvious presence of the servient driver at the stop sign
as well as the presence of the flashing green light.

[99]       
 In Nonis the plaintiff had stopped at a stop sign on Madison Ave.
in Burnaby and was attempting to travel southbound across several lanes of
Hastings St.  At that intersection there were flashing green lights for traffic
in the east/west direction.  He did not see any vehicles in the eastbound curb
lane.  He slowly crossed the three westbound lanes, slowed as he began to cross
the first of the eastbound lanes and then focused his attention on the
eastbound curb lane.   He did not see any vehicles approaching.  The defendant
was driving eastbound on Hastings St. in the curb lane and noticed that the
traffic around him was moving slowly and that the traffic in the far left lane
has stopped altogether.  In that case, the surrounding circumstances were such
that the court found that the defendant had failed to keep a proper lookout. 
In doing so, the court referred to the decision of the Supreme Court of Canada
in  Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) where, at p.
461, Cartwright J. adopted the principle that the dominant driver ought not to
exercise his right of way if the circumstances are such that the result of his
doing so will be a collision which he reasonably should have foreseen and
avoided:

…when A, the driver in the
servient position, proceeds through an intersection in complete disregard of his
statutory duty to yield the right-of-way and a collision results, if he seeks
to cast any portion of the blame upon B, the driver having the right-of-way, A
must establish that after B became aware, or by the exercise of reasonable care
should have become aware, of A’s disregard of the law B had in fact a
sufficient opportunity to avoid the accident of which a reasonably careful and
skilful driver would have availed himself; and I do not think that in such
circumstances any doubts should be resolved in favour of A, whose unlawful
conduct was fons et origo mali.

[100]     The
dominant driver is not required to take extraordinary steps to avoid the
collision: Nonis at para. 11, citing Salaam at para. 25.

[101]     In my
view, the evidence in the case is clear that the plaintiff’s vehicle,
travelling southbound on a through highway, had either entered or was
approaching the intersection of Willingdon Ave. and Pender St. so closely that
it constituted an immediate hazard.  Elia proceeded into the intersection
because she simply did not see the plaintiff’s vehicle.  She ought to have.  It
was plainly there to be seen had she been keeping a proper lookout.  The fact
that Elia did not see the immediate hazard does not entitle her to ignore it
and require that the dominant vehicle yield to her.  Elia did not have the
right of way – Michelle did.  Michelle had no warning of or chance to avoid the
collision.  The defendant clearly violated section 175(1) of the Act. 
She is therefore not entitled to the protection of subsection (2).

[102]    
Section 125 of the Act provides as follows:

125 
Unless otherwise directed by a peace officer or a person authorized by a peace
officer to direct traffic, every driver of a vehicle and every pedestrian must
obey the instructions of an applicable traffic control device.

[103]     The
defendant knew that crossing through the intersection was prohibited between
the hours of 3 pm and 6 pm.  She insists that she attempted to cross
shortly before 3 pm.  She says that she closed her till at approximately
2:45 pm, then balanced her records, left work, walked the block or so to
her car, got in and drove the block or so to the Willingdon Ave. intersection,
waited a few seconds and then proceeded through the gap in traffic thinking
that southbound traffic was clear.

[104]     Both the
plaintiff and the defendant said that the accident occurred at approximately
3 pm.  Defendant’s counsel submits that the defendant said she glanced at
her watch and saw that it was just before 3 pm and that there was no
evidence to dispute that fact.

[105]    
Plaintiff’s counsel submitted that the collision more likely occurred at
around 3:15 p.m.  He points to the following facts:

a)    the defendant’s
shift at work finishes at 3 pm, not before.  Employees of banks don’t typically
leave work early;

b)    the defendant’s
evidence during her discovery was that she waited at the intersection for 2
minutes, not 2 seconds as she testified at trial;

c)    the accident
occurred on a Friday afternoon at rush hour.  There were many vehicles around. 
There was a bus stop at that intersection.  There were many people who must
have witnessed the accident;

d)    the plaintiff’s
vehicle was leaking fluid onto the street.  The plaintiff could not get out of
her vehicle without the help of a witness; and

e)   
911 emergency received a call regarding the accident at 15:14:30 pm.

[106]     Plaintiff
counsel argues that, in this day and age, with most people having mobile
telephones, with the number of people at that intersection who must have
witnessed the collision and given that the collision was violent, spun the
plaintiff’s vehicle around, fluid was leaking and the plaintiff could not open
her door, the compelling inference is that someone called the police to report
the accident shortly after it happened, not 15 minutes later.  I agree.

[107]     I find
that the defendant attempted to cross the intersection after 3 pm when she was
prohibited by a traffic control device, namely a sign, from doing so.

[108]     I find
that the defendant is 100% liable for the collision and the injuries that
Michelle suffered as a result.  There was no contributory negligence on the
part of the plaintiff.

DID THE COLLISION CAUSE MICHELLE’S INJURIES

[109]     A
plaintiff must prove on a balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury.  The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the de minimus range.  There is no requirement that
causation be proven with scientific precision: Athey v. Leonati, [1996]
3 S.C.R. 458, at paras. 13-17; Ng v. Sarkaria, 2011 BCSC 1643
at para. 7.

[110]     The test
for causation is whether, but for the defendant’s negligence, the plaintiff
would have suffered the injury.  The “but for” test recognized that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is proven: Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333, at paras. 21-23; Clements v.
Clements, 2012 SCC 32 at para. 21.

[111]     There is
no question that the injuries Michelle suffered to her forehead, shoulder, neck
and back were caused by the collision.  All of those injuries were minor and
completely resolved within a few weeks.  None have reoccurred.

[112]     The main
issue in this case is whether Michelle’s left knee problems were caused by the
accident.

[113]    
The defendant argues that the plaintiff has not established on the
balance of probabilities that her knee was injured during the accident.  She
points to the following evidence:

·        
the plaintiff does not recall an impact to her knee

·        
she did not complain of any pain in her knee until a few weeks
after the accident

·        
Dr. Kokan testified that a moderate impact or axial loading to
the knee would be noticeable right after the accident.

·        
The MRI was normal and the arthroscopy of the left knee was
essentially normal

·        
despite the plaintiff complaining of “constant pain and swelling”
in her left knee, no swelling was found by Dr. Kokan during his various
examinations of her knee.

[114]    
The defendant points to other plausible explanations for the plaintiff’s
knee pain:

·        
irritation of the plica, which is common in athletes

·        
the plaintiff’s repetitive running activities

·        
patellofemoral pain can be caused by a period of increased
activity after a prolonged period of lack of exercise

[115]     Patellofemoral
syndrome is a term used by orthopaedic surgeons to describe knee pain for which
there is no anatomical explanation.  There are many theories as to why patients
experience such pain but no medically definitive answers.

[116]     Despite
the foregoing, in my view Michelle has proven on the balance of probabilities
that the injury to her left knee occurred during the collision of March 13, 2009. 
Although her left knee had been injured playing soccer 6 years earlier, that
injury was minor and had fully resolved very soon after it occurred.  Both Dr.
Kokan and Dr. Kendall agreed that her current knee condition could have been
caused by a blunt trauma.  Although Michelle did not first begin to complain of
knee pain until several weeks after the accident, that time frame is consistent
with her having settled back into her normal daily routine after the shock and
distress of the accident and her other injuries and the knee pain becoming more
noticeable.  There is no other explanation for why she would have such pain a
relatively short time after the accident.  On the whole of the evidence before
me, I find that there was nothing wrong with Michelle’s left knee prior to the
collision.  The only reasonable conclusion is that an impact occurred during
the collision that injured her knee which did not manifest itself for a few weeks.

DAMAGES

[117]     Once the
plaintiff proves that the defendant’s negligence caused or materially
contributed to her injury, she is entitled to be placed, so far as money can do
so, in the same position she would have been in had the negligence not
occurred.  The defendant is not obliged to compensate the plaintiff for any
debilitating effects of a pre-existing condition which the plaintiff would have
experienced regardless of the defendant’s negligence: Athey at paras.
32-35; Ng at para. 10.

a)   
Non-Pecuniary Damages

[118]     All of the
injuries Michelle suffered to her forehead, shoulder, neck and back were minor
and completely resolved within a few weeks.  None have reoccurred, although she
does have a small, residual but indiscreet scar on her forehead.

[119]     However
there is no question that, since the collision, Michelle has experienced and is
continuing to experience intense and ongoing pain in her left knee.  She is
unable to climb or descend stairs or even walk or stand for prolonged periods
of time without significant pain and having to sit and rest her knee.  She is
unable to participate in sporting activities which she has grown up doing and
which are her passion.

[120]     Both Dr.
Kokan and Dr. Kendall are of the opinion that Michelle has no structural
abnormality on the lateral side of her knee where her pain is and she is not at
risk of developing osteoarthritis as a result of her knee injury.  Both are of
the view that Michelle’s knee pain will resolve in time.  Dr. Kendall’s opinion
was that there is nothing preventing her from performing all normal daily
living activities and expects her to be able to resume most sporting
activities.  It will take time for her to be able to resume more vigorous
sporting activities.

[121]     Michelle’s
father confirmed that her life now is not that much different than it was
before the accident.  She continues to do chores at home and seems to be able
to do them without difficulty.  She continues to have an active social life and
live life as any normal 21 year old might be expected to.

[122]     Prior to
the accident, Michelle was fit and active.  She was an accomplished high school
athlete both as a soccer player and in track and field.  Although she made a
conscious decision in Grade 12 to leave track and field so she could
concentrate on soccer, mid way through her first year at SFU she decided to
return to track and field and attempt to qualify for that university’s track
and field team.  She began a new workout and fitness regime with the goal of
returning to high level track and field competition.  She was disciplined in
her maintenance of that regime and was approximately six weeks into it when the
accident occurred.

[123]     Plaintiff’s
counsel argues that, although Michelle was only an average student and wasn’t particularly
enamored with the academic side of university, being on the track team and experiencing
the comradery that being on the team would have offered would have kept her in
university.  He says there is little doubt that Michelle would have made the
SFU track team but for the accident.  He argues that she lost all of the
enjoyment and experiences that years on the track team would have brought her
way, and that she lost the friendships, alumni get-togethers and affiliations
that she otherwise would have had for the rest of her life.  He puts the likelihood
of her making the track team and completing a university degree at 80-90%.

[124]     Dr. Kokan
believes that, with rest and icing, Michelle’s knee pain will be resolved
within two to three years.  Dr. Kendall’s opinion is that, with proper guidance
and a proper rehabilitative program, Michelle can be expected to resolve her
knee problem within 12 to 18 months.

[125]     Counsel
for the plaintiff submits that the appropriate award for non-pecuniary damages
is in the range of $75,000 to $100,000.  He argues that, but for the accident
and the resulting injury to her knee, Michelle would likely have finished
university, would likely have been on the SFU track and field team, may
possibly have been awarded a scholarship, the experiences from those years
would have continued on with friendships, alumni get-togethers and other
affiliations which would have continued for the rest of her life.  He submits
that the likelihood of the foregoing would have been 80-90%.

[126]     He further
submits that there was a 10-20% chance that, after SFU, Michelle would have
gone on to a “full ride scholarship” at other universities, including American
universities and/or the Canadian national team and possibly even the Olympics.

[127]     Plaintiff’s
counsel argues that the quantum of damages does not depend upon the seriousness
of the injury, but rather upon its ability to ameliorate the condition of the
victim considering her particular situation.  An award will vary in each case
to meet the specific circumstances of the individual case: Lindal v. Lindal [1981]
2 SCR 629 at p. 637.

[128]     Counsel
for the defendant submits that a more appropriate range is $25,000 to $30,000,
considering what the court awarded in other similar cases: Price v. Kostryba,
70 BCLR 397 (S.C.); Fillion (Guardian ad litem of ) v. Balko, 2003 BCSC
419; Shore v. Bierens, 2005 BCSC 259; Larsen v. Wilson, 2007 BCSC
943; Battagliola v. Wal-Mart Canada Corp, 2011 BCSC 784; Hartman v.
Dias, 2006 BCSC 47; Rindero v. Nicholson, 2009 BCSC 1018;  Foley
v. Imperial Oil Ltd. 2010 BCSC 797; Dodsworth v. Krenus, 2010 BCSC
267.

[129]    
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, the court set
out a list of common factors that influence an award of non-pecunciary damages,
including:

·        
age of the plaintiff;

·        
nature of the injury;

·        
severity and duration of pain;

·        
disability;

·        
emotional suffering; and

·        
loss or impairment of life;

·        
impairment of family, marital and social relationships;

·        
impairment of physical and mental abilities;

·        
loss of lifestyle; and

·        
the plaintiff’s stoicism, a factor that should not penalize the
plaintiff.

[130]     The
plaintiff is 21 years of age.  She continues to have trouble walking and
standing without pain.  She is in pain every day.  Despite the pain, she is
living a normal and enjoyable life.  The prognosis for a full recovery is good.

[131]     After reviewing
the foregoing cases and taking my findings of fact in this case into account, I
find that that an award of $40,000 for non-pecuniary damages is appropriate.

Mitigation

[132]     There is a
duty on the part of all injured plaintiffs to take reasonable steps to minimize
the loss: Latuszek v. Bel-Air Taxi (1992) Limited, 2009 BCSC 798 at
para. 85.

[133]     Counsel
for the defendant argues that the plaintiff failed to mitigate her damages by
not continuing with physiotherapy as was recommended by her family physician,
by not trying other non-invasive treatment options and by not following the
recommendations of Dr. Kokan following her arthroscopic surgery and resuming
rehabilitation under the guidance of a personal trainer.  She argues that,
instead, the plaintiff simply went to the gym four – five times on her own and
then ceased those attendances when the pain in her knee got worse.

[134]     Michelle
may well have “fallen through the cracks” in terms of the guidance (or lack
thereof) that she has been given for her injuries.  However, I cannot fault her
for that lack of guidance.  She was told by her physiotherapist that the
treatments she was receiving were making her condition worse, so she stopped
and consulted her family doctor who referred her to Dr. Kokan.  Exploratory
surgery was conducted which did not reveal anything significant, other than a
large plica which was removed.  She was advised to ice and rest her knee which
she has been doing ever since.  I find that, in the circumstances, the
defendant has not shown that Michelle failed to take reasonable steps to
mitigate her knee and other injuries that she suffered during the collision of
March 13, 2009.

b)  
Past wage loss

[135]     The
parties agree that Michelle’s past wage loss is $939.15.

c)   
Loss of earning capacity

[136]     I must
determine whether Michelle’s future earning capacity has been impaired by her
knee injury and, if so, the level of compensation she should be awarded in
respect of that loss of earning capacity.  Plaintiff’s counsel submits that
there was a real and substantial possibility that Michelle would have continued
her schooling at SFU, would have become a member of that institution’s track
and field team and would have obtained her university degree.  Using various
salary tables published by Statistics Canada including tables that compare
women of all occupations in Vancouver with those with university certificates
or degrees and tables that compare women of all occupations in Canada with a
university certificate or degree with legal assistant’s average earnings across
Canada, then taking into account the positive and negative contingencies
applicable to Michelle and then capitalizing Michelle’s loss using a 2.5%
discount rate, he argues that the present value equivalent of Michelle’s lost
earning capacity is $261,664.  He submits that an appropriate award in this
case for loss of earning capacity is $200,000.

[137]     The
defendant argues that neither medical expert was of the opinion that Michelle
had lost earning capacity.  The plaintiff did not present any functional or
work capacity reports providing an assessment of her abilities or
restrictions.  The defendant argues that Michelle’s activities have been
self-limiting and contrary to the recommendations and advice she received from
her orthopaedic surgeon.

[138]     The
defendant submits that it is significant that, although she mentioned her past
soccer activities, at no time did the plaintiff mention any track activities to
the ICBC adjuster despite having just begun a new training regime.  She also
did not mention any track activities or training to her family physician or to
either Drs. Kokan or Kendall.  She sought no advice from any of these doctors
in respect of whether or how she could return to these activities.

[139]     The
defendant argues that the plaintiff’s failure to take any initiative to resolve
her knee problem speaks volumes for her true motivation and intention – namely
that she had no intention of completing her university degree, obtaining
scholarships or pursing athletics in university or as a career.  Anyone with
even a modicum of serious intention to do so would have done much more than the
plaintiff has done towards her rehabilitation.  It is telling, says defendant’s
counsel, that none of her high school athletic coaches kept in touch with
Michelle after she graduated from high school.  One would think that a girl
with sufficient athletic talent and ambition would be a person that these high
school coaches would have wanted to follow with interest.

[140]    
In Smith v. Knudsen, 2004 BCCA 613 at para. 24, Madam Justice
Rowles referred to the decision of the Supreme Court of Canada in  Athey in
which Major J. stated, in part (at para 27):

Hypothetical events (such as how
the plaintiff’s life would have proceeded without the tortious injury) or
future events need not be proven on a balance of probabilities.  Instead, they
are simply given weight according to their relative likelihood…

[141]    
In Chang v. Feng, 2008 BCSC 49 at para. 71, Mr. Justice Bauman (as
he then was) referred to the decision in Pallos v. Insurance
Corporation of British Columbia (1995), B.C.L.R. (2d) 260 (C.A.) in which Finch
J.A. stated that the “capital asset” approach and the “real possibility”
approach were not mutually exclusive.   Mr. Justice Bauman went on to note
that:

[73]      Whether, indeed, the law in
British Columbia permits recovery under this head in the “absence of any
evidence of a real and substantial possibility of lost earnings or profits”, is
complicated by the British Columbia Court of Appeal’s decisions in Parypa v.
Wickware, 1999 BCCA 88 (CanLII), 1999
BCCA 88 and in Steward v. Berezan, 2007
BCCA 150 (CanLII), 2007 BCCA 150.

[74]      In Steward, the court
was reviewing a trial judge’s award for impairment of the plaintiff’s earning
capacity “in other occupations that may now be closed to him”.

[75]      Justice Donald, for the court,
noted the trial judge’s use of the phraseology from Palmer v. Goodall 1991 CanLII 384 (BC CA), (1991), 53 B.C.L.R.
(2d) 44 (C.A.) (at ¶ 17 and 18):

[17] But the language
in question there was used in the context of appellate review and, with
respect, it cannot be transposed to an original analysis at the trial
level.  The claimant bears the onus to prove at trial a substantial
possibility of a future event leading to an income loss, and the court must
then award compensation on an estimation of the chance that the event will
occur:  Parypa ¶ 65.

[18]      When
the record is examined according to that approach, I cannot see the basis for a
substantial possibility giving rise to compensation for diminished earning
capacity.  There being no other realistic alternative occupation that
would be impaired by the plaintiff’s accident injuries, the claim for future
loss must fail.

[76]      This
appears to be an express direction to first enquire into whether there is a
substantial possibility of future income loss before one is to embark on
assessing the loss under either approach to this head of loss, in particular,
under the capital asset approach as well.   (I note that Justice Russell
arrived at a similar conclusion in Naidu v. Mann, 2007 BCSC 1313 (CanLII), 2007 BCSC 1313 and see
also Bedwell v. McGill, 2008 BCCA 6
(CanLII), 2008 BCCA 6, para. 53.)

[142]    
In Perren v. Lalari, 2010 BCCA 140 at para. 11, Madam
Justice Garson noted that in Kwei v. Boisclair (1991), 60 B.C.L.R. (2d)
393 (C.A.), Taggart J.A. held that where the loss cannot be measured in a
pecuniary way, “the correct approach was to consider the factors described by
Finch J., as he then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353.  In Brown, Finch J. said 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.

[143]    
Madam Justice Garson then stated, at paras 30 and 32:

[30]      Having reviewed all of these cases, I conclude that
none of them are inconsistent with the basic principles articulated in Athey
v. Leonati, 1996 CanLII 183 (SCC),
[1996] 3 S.C.R. 458, and Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229.
 These principles are:

1.     
   A future or hypothetical possibility will be taken into
consideration as long as it is a real and substantial possibility and not mere
speculation [Athey at para. 27], and

2.     
   It is not loss of earnings but, rather, loss of earning capacity
for which compensation must be made [Andrews at 251].

[32]      A plaintiff must always
prove… 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.

[144]     Turning to
the facts of this case, Michelle is a young 21 year old who is presently
employed as a legal assistant.  She enjoys her job and hopes to eventually
become a paralegal.  Her intentions are to eventually marry and have children.

[145]     I find
that Michelle was a good high school athlete but not a standout with any
substantial possibility of an athletic scholarship.  I have concluded that none
of the factors enumerated in Brown v. Golairy apply.  Michelle has
not been rendered less capable overall from earning income from all types of
employment.  She is not any less marketable or attractive as an employee to
potential employers.  She has not lost the ability to take advantage of job
opportunities that might otherwise have been open to her, nor is she less
valuable to herself as a person capable of earning income in a competitive
market.  I am not satisfied that Michelle’s career path has been affected by
the injury to her knee.  She has not discharged the burden of proof on her that
there was a causal connection between the accident of March 13, 2009 and her
decision not to pursue a university degree.  On the whole of the evidence
before me, I do not find that there was a substantial possibility that, but for
the accident, Michelle would have continued pursuing and would have obtained a
university degree.  At best, it is mere speculation.

d)  
Special expenses

[146]     The
parties are agreed that the plaintiff is entitled to special expenses of
$120.00 in respect of physiotherapy fees.

SUMMARY

[147]    
In conclusion, I award the following damages to the plaintiff:

[148]    
The plaintiff is entitled to her costs at Scale B.  The parties are at
liberty to speak to costs if they cannot agree.

“The Honourable Mr.
Justice Weatherill”