IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20120910

Docket: M072776

Registry:
Vancouver

Between:

Leona Rizzotti

Plaintiff

And

 John Doe,
administrator of the estate of Adeline Katherine Laley, and the estate of
Adeline Katherine Laley

Defendants

–
and –

Docket: M085668

Registry:
Vancouver

Between:

Leona Rizzotti

Plaintiff

And

Janette E. Dascent
and Shien Christian Bonghanoy

Defendants

Before:
The Honourable Mr. Justice R.S. Tindale

Reasons for Judgment

INTRODUCTION

[1]            
 This action is as a result of three different motor vehicle accidents
that the plaintiff was involved in. The first accident occurred on June 25,
2005, on Highway 22 near Trail, British Columbia. The second accident occurred
on December 29, 2006, on Columbia Avenue in Castlegar, British Columbia. The
third accident occurred on September 4, 2008, on Knight Street in Vancouver,
British Columbia.

[2]            
Liability for all three of the motor vehicle accidents has been admitted
by the defendants.

BACKGROUND

[3]            
The plaintiff is 49 years of age and has been married to her husband
John Rizzotti for 30 years. They have two grown children, Krysta and Joshua.

[4]            
The plaintiff, along with her husband, from 1992 through 2005 operated a
number of Subway franchises in the Kootenay area of British Columbia. The
Subway franchises were located in Castlegar, Trail, Rossland, Fruitvale, Waneta
and Salmo, British Columbia.

[5]            
Prior to the first accident on June 25, 2005, the plaintiff and her husband
were in the business of operating and selling Subway franchises. The plaintiff,
at the time of the first accident, was in the process of selling her last
Subway franchise in Waneta, British Columbia.

[6]            
After the sale of the Waneta franchise the plaintiff did not work in any
capacity for Subway.

[7]            
The plaintiff is currently employed with ASL Joint Venture.

THE ACCIDENTS

[8]            
The first accident occurred on June 25, 2005, on Highway 22 near Trail,
British Columbia. The plaintiff was a front seat passenger in a 2001 Volkswagen
Beetle driven by her husband. This accident was a head-on collision in which
the defendant driver was killed.

[9]            
The second accident occurred on December 29, 2006, on Columbia Avenue in
Castlegar, British Columbia. The plaintiff was a passenger in the front seat of
a Toyota van driven by her husband. Their vehicle was rear-ended by a 2006
Subaru vehicle while they were stopped at a red light.

[10]        
The third accident occurred on September 4, 2008, on Knight Street in
Vancouver, British Columbia. The plaintiff was driving her Honda Accord when
she was rear-ended by the defendant’s vehicle.

THE MEDICAL EVIDENCE

[11]        
The plaintiff testified that after the first accident of June 25, 2005,
she could not believe that someone had died in the accident. She remembers
seeing a lady hanging out of the other car, who had blood coming out of her
mouth and running off to the side of the road.

[12]        
She testified that she phoned her children after the accident and she remembers
seeing her kids running to her when they arrived at the accident scene. She
testified that she was worried about her husband and she kept thinking that it
could have been her or her husband who died in the accident.

[13]        
She testified that she received injuries to her neck, shoulders, chest,
lower back, abdomen, left hip, her left knee and her tailbone.

[14]        
The plaintiff testified that after the accident on December 29, 2006,
she remained in the vehicle and began to cry. The action brought up bad
memories for her and she found that she was crying hysterically at the accident
scene. She felt a twinge of pain in the center of her back after that accident.

[15]        
The plaintiff did not seem to suffer any significant injuries after the
accident of September 4, 2008.

[16]        
The plaintiff testified that she was in excellent health prior to the
first motor vehicle accident.

[17]        
She testified that her left hip bothered her for a long time and that
her tailbone continues to bother her on a daily basis. Emotionally, the
plaintiff testified that she used to be a very strong person. Now she says that
she will cry over the simplest of things and that unexpected loud noise bothers
her. She gave an example that if she’s in the laundry room and someone startles
her she will begin to cry and will get mad at that person.

[18]        
The plaintiff has had the following medical treatment for her physical
ailments –

1.       Between
June 29, 2005, and October 2008, she saw her family physician Dr. Ellen Smart
approximately 23 times.

2.       Between
July 15, 2005, and May 17, 2006, she had approximately 22 visits with Sarah
Taylor, an occupational therapist.

3.       Between
July 6, 2005, and October 17, 2009, she had approximately 18 visits with a
massage therapist. She then had a further 3 visits with the massage therapist between
June 2, 2009, and June 9, 2009.

4.       Between
August 2, 2005, and March 23, 2006, she attended for approximately 54 visits
with a physiotherapist. Then again between January 4, 2007, and October 16,
2008, she had a further 5 visits with a physiotherapist.

5.       Between
March 14, 2006, and December 31, 2009, she attended for approximately 9 visits
with a chiropractor.

6.       Between
June 14, 2006, and May 17, 2007, she had approximate 6 visits with Dr. William
Craig, a physiatrist.

[19]        
The plaintiff has had the following medical treatments for her emotional
ailments –

1.       Between
July 19, 2005, and August 25, 2005, the plaintiff saw a trauma counselor,
Judith Moser, for approximately 2 visits.

2.       Between
November 25, 2005, and June 5, 2006, the plaintiff had approximately 19 visits
with Fran Metge, a clinical counsellor.

3.       Between
February, 15 2007, and June 26, 2007, the plaintiff saw Dr. Todd Kettner, a
psychologist, for approximately 8 visits. She also saw Dr. Kettner for a
further 6 visits between December 23, 2010, and June 30, 2011.

[20]        
In the medical/legal report of Dr. Ellen Smart dated December 2, 2011,
she states the following:

In regard to the emotional impact of the MVA, Leona continued
counseling through to June 2006. Initially these visits focused on PTSD
symptoms and later evolved to help her accept changes generated by her
accident. She had no previous history of depression or PTSD. She had a total of
12 – 14 visits before termination by ICBC.

I have not seen Leona in regard
to her MVA injuries since October 2, 2008. She has chosen to accept her
limitations from pain; she still experiences pain in the left SI area with
prolonged sitting but can walk an hour before stopping. At this juncture, I
believe she will always have some discomfort in her left SI area which may
prevent her from long walks or prolonged standing. There are no further workups
planned, although clearly this injury from her MVA will limit both her work and
recreational activities.

[21]        
In the medical/legal report of Dr. Todd Kettner dated October 24, 2011,
Dr. Kettner, a registered psychologist, opines to the following:

My firm opinion is that the 2005 fatal MVA was the sole cause
of Ms. Rizzotti’s PTSD. I am not aware of any pre-existing traumatic stress
disorder or any other mental illness that would have made Ms. Rizzotti
susceptible to developing PTSD in response to this MVA. On the contrary, her
rather optimistic and upbeat personality can be considered a protective factor
that helped her to engage effectively in treatment and manage without more
psychological dysfunction than she did experience. There were business
stressors and concerns regarding her son in the period around and subsequent to
the MVA that can reasonably be considered to have increased her insomnia and
her general anxiety. However, these would not have caused or heightened the
nightmares, flashbacks, crying spells or fears of driving/being a passenger
that were the cardinal features of her PTSD.

It is common for individuals who
have experienced traumas similar to what Ms. Rizzotti did to be more disabled
psychologically than she was or more recently has been. She continued to
partially function in her family business and in her role as homemaker even
after the accident. This was in spite of the significant psychological distress
and physical pain she was experiencing. I would expect that she would continue
to be more emotionally fragile in vocational situations going forward as she
described this to me regarding her current position nearly 6 years after the
MVA.

[22]        
Dr. Anderson, a psychiatrist, interviewed Mrs. Rizzotti on April 26,
2010. In his medical/legal report, dated May 3, 2010, he opines that as a
result of the first accident of June 25, 2005, the plaintiff "was
traumatized at the accident scene and she developed a posttraumatic stress
disorder (PTSD). Mrs. Rizzotti’s PTSD symptoms have reduced over time. She
continues to have chronic PTSD in partial remission. Mrs. Rizzotti also developed
significant depressive symptoms following the MVA. She continues to have
depressive symptoms consistent with a diagnosis of a chronic adjustment
disorder with depressed mood."

[23]        
Dr. Anderson opines that the plaintiff’s prognosis is guarded and that
she will not likely return to her premorbid level of emotional functioning
despite further treatment and the passage of time. Dr. Anderson opines that the
plaintiff will likely remain emotionally fragile on a long-term basis and could
be at risk of developing PTSD in the future if she is exposed to further
trauma.

[24]        
Dr. Anderson further opines that "as long as Mrs. Rizzotti has
chronic pain and functional limitations, she will likely continue to have
depressive symptoms. Further psychotherapy will likely cause a reduction of
Mrs. Rizzotti’s present anxiety and depressive symptoms but she will likely
continue to have emotional difficulties on a long-term basis and not be able to
function adequately in a stressful work environment".

[25]        
Dr. Anderson made the following recommendations for further assessment
and treatment of the plaintiff:

I)          Mrs.
Rizzotti requires treatment with a psychologist such as Dr. Kettner. I suggest
that Mrs. Rizzotti be seen for twenty further sessions of cognitive-behavioral
therapy (CBT) before re-assessing the need for further treatment. Mrs. Rizzotti
may also require four to six sessions per year on an ongoing basis thereafter.

II)         Mrs.
Rizzotti does not presently require treatment with psychotropic medication. If
her mood should deteriorate in future then consideration should be given to
prescribing antidepressant medication.

III)        Mrs.
Rizzotti requires an updated assessment from a physiatrist (physical medicine
specialist). Mrs. Rizzotti has chronic pain and treatment/rehabilitation
recommendations from a physiatrist would be indicated.

IV)       I
suggest that Mrs. Rizzotti be enrolled in a supervised exercise program under
the direction of a kinesiologist or an experienced personal trainer. Regular
aerobic exercise may improve Mrs. Rizzotti’s mood and energy, provided it does
not cause a further worsening of her pain.

V)        Mrs. Rizzotti does not presently
have an alcohol abuse problem but she needs to ensure that she does not
increase her alcohol consumption in future. Ideally she should limit her
alcohol consumption to a maximum of one drink per night as long as she has
significant depressive symptoms.

[26]        
Dr. Anderson gave evidence that he did not agree with Dr. Levins concern
that Dr. Kettner had over-diagnosed Mrs. Rizzotti with regard to PTSD and
depressive symptoms.

[27]        
Dr. Levin is a psychiatrist tendered by the defendants as rebuttal
evidence to the opinion of Dr. Anderson. The plaintiff objected to the
admissibility of Dr. Levin’s report during this trial. I declared a voir
dire to allow the plaintiff to cross-examine Dr. Levin and make argument as
to the admissibility of the report. I ultimately found that the report was
admissible, however I initially told counsel that I would be putting very little
weight on the report as Dr. Levin did not interview the plaintiff.

[28]        
The plaintiff objected to the admissibility of Dr. Levin’s report for
the following reasons –

a)       Dr. Levin failed to meet with the plaintiff;

b)       Dr. Levin failed to make an "earnest effort"
to interview the plaintiff;

c)       Dr. Levin based his opinion on a review of the
materials;

d)       Dr.
Levin relied on documents that were not in evidence which was primarily the
plaintiff’s report of Dr. Cecil Hershler (which the plaintiff chose not to rely
on at the trial of this matter despite providing the report to the defendant);
and

e)       Dr.
Levin did not set out the facts and assumptions on which his opinion was based.

[29]        
In my view Dr. Levin’s report is a rebuttal report to that of Dr. Anderson.
While this court has commented on other occasions that it is not advisable to
rely upon a medical report where the expert has not personally examined the
plaintiff, that is typically in cases where the expert was not qualified to
give the opinion in the first place.

[30]        
The defendants argued that Dr. Levin did not have time to meet with the
plaintiff as the defendants were not aware that the psychological injury would
be a substantial claim at trial until November 9, 2011, when they were provided
with the reports of Dr. Anderson and Dr. Kettner.

[31]        
Dr. Levin does agree that he relied on the report of Dr. Hershler in
coming to his conclusions. However I find it would not be fair to rule Dr.
Levin’s report inadmissible for this reason only because the plaintiff, who
provided Dr. Hershler’s report to the defendant, decided not to use it.

[32]        
 Dr. Levin does set out the facts and assumptions that he relied upon in
the form of a detailed review of all the clinical records that he received.

[33]        
This claim primarily is concerned with the emotional and psychological
impact of these accidents on the plaintiff. Dr. Levin’s report does provide
guidance to the court with regard to a detailed description of the elements of
post-traumatic stress disorder as well as chronic adjustment disorder.

[34]        
For the above noted reasons I ruled Dr. Levin’s report admissible and I
ruled that his evidence on the voir dire would form evidence on the
trial proper.

[35]        
I have already explained that I am putting little weight on Dr. Levin’s
report because he did not interview the plaintiff. Dr. Levin himself testified
that he could not do a proper assessment without interviewing the plaintiff.

FINANCIAL EVIDENCE

[36]        
The plaintiff has a grade 12 education. In 2008 she received training in
Auto CAD, which is a software drafting program.

[37]        
The plaintiff, along with her husband, operated six Subway stores from
1992 until they sold the last store in December 2005. The plaintiff attended
the United States of America in 1992 for training to operate a Subway
franchise. John Rizzotti, the plaintiff’s husband, described himself as the
ideas person and the plaintiff as the details person. By all accounts the
plaintiff and her husband were very competent Subway owners. They were
extremely well respected and considered to be innovators in the Subway business
world. The plaintiff’s last Subway restaurant sold in December of 2005. The
plaintiff did not work again until September of 2007.

[38]        
The plaintiff’s income tax returns for the years 1991 through 2009 can
be found in Exhibit 2 of these proceedings. The plaintiff’s income for the
years 2006 through 2011 are as follows –

[39]        
John Rizzotti testified that he and the plaintiff were still looking at
other locations to open up Subway franchises after the sale of their last
store. There is no evidence however, that the plaintiff or her husband took any
further steps to open up any further franchises other than looking at possible
locations.

[40]        
The plaintiff retained Rosanne Terhart who testified in these
proceedings as an expert witness in accounting. Ms. Terhart performed
calculations for the period between 1993 and 2004 and came to the following
conclusions –

a.       The
average income earned per year from the operation and sale of Subway
restaurants was $112,000 (rounded). This income was reported by Mrs. Rizzotti
and her husband on their personal income tax returns. Based on a 50-50 split
between Mrs. Rizzotti and her husband, Mrs. Rizzotti’s average income earned
per year was $56,000 (rounded);

b.       The
average number of Subway restaurants, operated per year by Mrs. Rizzotti and
her husband, was 2.1 (rounded); and

c.       The
average income earned per year, per subway restaurant operated and sold, was
$53,000 (rounded). Based on a 50-50 split between Mrs. Rizzotti and her
husband, Mrs. Rizzotti’s average income earned per year, per Subway restaurant,
was $26,500 (rounded).

[41]        
Ms. Terhart also testified that she used such a large timeframe as the
information was available to her and because it showed a trend in earnings.

[42]        
She also testified that she did not use any information from the Waneta
store as there was some intermingling of finances with other businesses
operated by Mr. Rizzotti and the plaintiff. She testified that if the Waneta
store was included in her calculations then the average income for the
plaintiff and Mr. Rizzotti would be $108,000 per year. This would mean that the
plaintiff would earn on average $54,000 per year.

[43]        
The defendants also retained an expert, Anthony Volpe, to analyze the
income loss of the plaintiff. Mr. Volpe used three approaches to analyze any
loss of income of the plaintiff. The first approach was to determine whether or
not there had been a reduction in sale proceeds for franchises that were sold;
the second was an analysis of loss of business income available to the
plaintiff; and the third was an analysis of the loss of T1 income of the
plaintiff.

[44]        
In the first analysis it is noted that the contract to sell the Waneta store
was signed on June 13, 2005, prior to the first accident. Though this contract
was eventually cancelled the sale did ultimately go through at a higher sale
price of $255,000 instead of $250,000.

[45]        
Mr. Volpe also analyzed sales of the other stores of the plaintiff. Mr.
Volpe concluded that there was no loss to the plaintiff on the sale of the
Waneta store as a result of the accidents.

[46]        
Mr. Volpe also addressed the argument that the plaintiff has losses due
to not being able to purchase any new Subway franchises. He noted that the
plaintiff, on average, held a franchise for 5.98 years before selling it.

[47]        
As I will address later, I do not find that there is sufficient evidence
to conclude that the plaintiff intended to operate other Subway franchises
after December 2005.

[48]        
With regard to the analysis of loss of business income Mr. Volpe took
the approach of analyzing financial information for the three fiscal years ending
on March 31, 2006. He calculated that the plaintiff and her husband, during
that time period, had an average net loss of $15,464.

[49]        
Mr. Volpe noted that all of the plaintiff’s stores were sold prior to
the first accident except for the Waneta store which, as he concluded, was
operating at a net loss prior to the first accident.

[50]        
With regard to the analysis of personal income tax returns Mr. Volpe
concluded that the plaintiff earned an average of $6,628 for the three years
prior to the first accident. He then went on to deduct the actual T1 earnings
of the plaintiff after the first accident up until 2009 and concluded that
there was no past income loss of the plaintiff.

POSITION OF THE PARTIES

[51]        
The plaintiff argues that she sustained serious physical and
psychological injuries. The plaintiff had injuries to her left leg, hip, and
lower back. She also had severe bruising across her neck, chest and abdomen. In
the second accident the plaintiff sustained injury to her mid-back area.

[52]        
The plaintiff argues as a result of the three collisions she has low
energy levels, and is easily frustrated.

[53]        
The plaintiff also argues that she suffered nervous shock at the first accident
scene and developed post-traumatic stress disorder. In addition the plaintiff
has experienced depression and anxiety. The plaintiff argues that because of
this she is not able to cope with the challenges of daily life as well as she
used to.

[54]        
The plaintiff relies on the following cases for her non-pecuniary
damages claim – Stapley v. Hejslet, 2006 BCCA; Johnstone v. Canada
(Attorney General), 2006 BCSC 1867; Crane v. Lee, 2011 BCSC 898; Parfitt
v. Mayes et al, 2006 BCSC 125; and Djukic v. Hahn, 2006 BCSC 154.

[55]        
The plaintiff argues that the range of non-pecuniary damages should be
between $100,000 and $125,000.

[56]        
The plaintiff further argues that she is unable to return to the
business of buying, operating and selling Subway restaurants because of the
accidents.

[57]        
The plaintiff, in her argument, unfortunately misinterpreted her own
expert’s evidence and in effect doubled the amount of money that the expert
said the plaintiff and her husband made from the Subway restaurants. As such,
her calculations are of no use to my analysis for the past income and future
income losses.

[58]        
The plaintiff is claiming special damages in the amount of $7,138.96.

[59]        
The plaintiff is also claiming future special damages for psychological
counseling, 24 sessions of cognitive behavior therapy as recommended by Dr.
Anderson, and a gym pass to age 75. The plaintiff claims $42,950 for future
special damages.

[60]        
The plaintiff also argues that she has not failed to mitigate her damages
by not taking antidepressant medication or having injections in her hip as
recommended by Dr. Craig.

[61]        
The plaintiff argues that there is no evidence that she was actually
prescribed antidepressant medication and Dr. Anderson only said that it may be
helpful now. With regard to the injections, Mrs. Rizzotti testified that she was
afraid of injections and she did accept Dr. Craig’s referral to attend
physiotherapy.

[62]        
The defendants argue that the physical injuries that the plaintiff
suffered from the accidents resolved within a year with the exception of the
injuries to her hip, lower back and tailbone area.

[63]        
The defendants argue that the plaintiff did not meet the diagnostic
criteria for post-traumatic stress disorder and that the evidence demonstrates
that the plaintiff was suffering from an adjustment disorder.

[64]        
The defendants also argues that any award for non-pecuniary damages
should be reduced because of the plaintiff’s failure to mitigate her damages.

[65]        
The defendants rely on the following cases with regard to an award for
non-pecuniary damages – Tung v. Allen, [2008] B.C.J. No. 970; Wilkinson
v. Whitlock, [2011] B.C.J No. 2495; and Beaudry v. Kishigweb, [2010]
B.C.J. No. 1290.

[66]        
The defendants argue that the appropriate award for non-pecuniary
damages is $65,000. They further argue however, that should I find that the
plaintiff did suffer from post-traumatic stress disorder then the range of
damages should be between $75,000 and $100,000. In the circumstances the
defendants submit that $85,000 would be an appropriate award less a deduction
for failure to mitigate.

[67]        
The defendants argue that a simple calculation to determine the
plaintiff’s loss of past income would be arbitrary and not supported by the
evidence.

[68]        
The defendants rely on Mr. Volpe’s report which indicates there was no
past wage loss. However, the defendants also point to the fact that from 2007
to date the average income of the plaintiff is $25,000 . The defendant argues
that if any award is made under this head of damage it should be for $25,000
less appropriate deductions.

[69]        
The defendants argue that there should be no award for future loss of
income. They argue that the plaintiff had no plans to continue owning and
operating Subways after the sale of the Waneta store. They argue that the
alleged opportunities to open up further Subway restaurants, as testified to by
John Rizzotti, in Christina Lake, Rock Creek, Kaslo, Balfour, and Nakusp were
hypothetical and highly speculative. They argue that the plaintiff never completed
any formal applications or prepared any business plans for these proposed
locations.

[70]        
The defendants further argue that the medical evidence does not support
the fact that the plaintiff was unable to work prior to 2007.

[71]        
The defendants, in the alternative, argue that if I find there is a real
and substantial possibility of a future event leading to an income loss then I
should take the capital asset approach to determining the loss.

[72]        
The defendants argue that any award for loss of earning capacity should
be in the range of $35,000-$50,000.

[73]        
The defendants argue that some of the special damages, such as the expenses
to travel to obtain a medical/legal report, should more properly be recovered
as disbursements. They argue that $3,000 for special damages is appropriate.

[74]        
The defendants argue that there should be no award for costs of future
care.

DISCUSSION

Non-Pecuniary Damages

[75]        
The plaintiff was clearly involved in a serious head-on collision in
2005. She sustained injuries of a physical nature and a psychological nature.
The evidence is clear that the first accident caused the majority of the
injuries to the plaintiff while the other two accidents exacerbated her
condition.

[76]        
The medical evidence is clear that the physical injuries were caused by
the accidents. The medical evidence is also clear that her psychological
injuries were caused by the accidents.

[77]        
Dr. Anderson diagnosed the plaintiff as having ongoing depressive
symptoms consistent with a diagnosis of chronic adjustment disorder with
depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic
stress disorder in partial remission.

[78]        
The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic
stress disorder. Both doctors Anderson and Kettner had the advantage of
personally interviewing the plaintiff.

[79]        
Dr. Levin agreed with the diagnosis of adjustment disorder with
depressed mood however he did not feel that the plaintiff had post-traumatic
stress disorder. Dr. Levin only reviewed the medical documentation and did not
interview the plaintiff.

[80]        
I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr.
Levin as they were able to personally interview the plaintiff.

[81]        
The evidence in this case clearly indicates that the plaintiff suffered
physical injuries which are long-standing and chronic in nature as well as a
serious psychological injury.

[82]        
The defendants have not discharged their onus that the plaintiff failed
to mitigate her losses by failing to take medication. The evidence does not
disclose on a balance of probabilities that she was prescribed antidepressant
medication. Also, with regard to the plaintiff declining to have injections in
her hip, there is no evidence that this delayed her recovery. She also gave
evidence that she was afraid of injections, which I accept

[83]        
The appropriate award for non-pecuniary damages is $110,000.00.

Past Wage Loss

[84]        
The issue of past wage loss is more problematic in this case because of the
fact that the plaintiff was in the process of selling her last Subway
restaurant prior to the first accident.

[85]        
I have evidence from two experts who analyzed the financial situation of
the plaintiff. Ms. Terhart analyzed the plaintiff’s financial records over a
period of 12 years. She utilized the capital gains of the plaintiff to
determine the plaintiff’s average income over that period of time. Mr. Volpe
used a three-year period arguing that 12 years was too long a period to use. He
argued that it did not reflect the current financial situation of the
plaintiff’s business endeavors. Mr. Volpe also argued that using the capital
gains approach was not appropriate as there were tax implications to consider
and costs associated with the sale of the capital property which may not be
accounted for in this approach.

[86]        
The plaintiff has used Ms. Terhart’s findings as a baseline for the
income that the plaintiff could have earned after the accidents in calculating
her past wage loss. The defendants have used Mr. Volpe’s findings as to what
the plaintiff’s average income was in the three years prior to the first
accident and then deducted that from what she actually earned after the
accidents in concluding that there was no past wage loss. The findings of both
experts are only useful if I accept that the plaintiff intended to carry on in
the business of owning and operating Subway businesses after the first accident.
For the reasons that follow, I do not.

[87]        
The evidence is that the plaintiff was in the process of selling her
last Subway restaurant prior to the first accident occurring. Up to that point,
on average, the plaintiff and her husband owned and operated 2.1 Subway
restaurants from 1992 until 2005. While the plaintiff’s husband John Rizzotti
may have been looking at other locations there is no evidence that any steps
were taken to open any other Subway restaurants prior to or after the sale of
the Waneta store.

[88]        
Mr. Satnam Gurm gave evidence that he drafted a letter, dated September
15, 2006, for the plaintiff (Exhibit 2, Tab 25 in these proceedings) which
reads as follows:

To whom it may concern,

I, Satnam Gurm, owner/operator
of Waneta Subway, would have hired Leona Rizzotti in December 2005 to assist me
in managing my new Subway restaurant. I would have paid her a salary of $3000
per month.

[89]        
Mr. Gurm testified that he signed this letter because he was a friend of
the plaintiff and that he never intended to hire her. The plaintiff testified
that she wanted the letter just to show that Mr. Gurm would have hired her if
he had been able to afford to.

[90]        
This letter is problematic for the plaintiff as I do not accept that she
asked Mr. Gurm for this letter as some sort of an indication as to what she could
have earned. This letter is a clear example of two things. First, the plaintiff
was not intending to own or operate any Subway restaurants after December of
2005; and Second, she was trying to bolster her claim for past wage loss.

[91]        
It is clear on the evidence that the plaintiff was not intending to own
or operate a Subway restaurant immediately after the sale of the Waneta
restaurant. I do not have any evidence as to what the plaintiff’s employment
plans were immediately after the sale of the Waneta restaurant. The plaintiff
did have capital gains income and business income in 2006 from the sale of the
Waneta restaurant. Based on the evidence I conclude that the plaintiff would
not have sought employment even if the first accident had not occurred until closer
to the end of 2006.

[92]        
The plaintiff, since entering the workforce as an employee in September
of 2007, has earned on average $25,000 per year. She is currently earning
$48,000 per year.

[93]        
The plaintiff did not work until September 2007. In my view, but for the
accident occurring, she likely would have returned to the workforce in the fall
of 2006.

[94]        
The plaintiff gave evidence that when she returned to work she took some
upgrading with regard to AutoCad training and some other computer training.

[95]        
The appropriate determination of past wage loss in this case is to give
the plaintiff one year of wages which represents the wages  that she could have
made had she returned to work in the fall of 2006 instead of September of 2007.

[96]        
The appropriate award for past wage loss is $25,000 which represents the
average of one year’s income of the plaintiff’s had she entered the workforce.
Taking into account a 20% deduction for income tax and other mandatory
employment deductions the net past wage loss is $20,000.

[97]        
I award the plaintiff $20,000 for past wage loss less any total
temporary disability benefits paid by the defendant.

Future Loss of Earning Capacity

[98]        
The plaintiff is currently employed earning $48,000 per year. According
to Dr. Anderson her prognosis is guarded. He feels that the plaintiff will
likely remain emotionally fragile on a long-term basis and be at risk for
developing post-traumatic stress disorder in the future if exposed to further trauma.
Dr. Anderson also opined that the plaintiff will not be able to function
adequately in a stressful work environment.

[99]        
This is not a case where an earnings approach to the analysis of future
loss of earning capacity is appropriate as the plaintiff is currently working.
In my view the capital asset approach is the appropriate analysis to be made.

[100]     In the
decision of Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, the court
referred to the following considerations –

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 labor market.

[101]     In this
case the plaintiff has lost the ability to take advantage of all job opportunities
because of her psychological difficulties. She, for example, is no longer
capable of running her own business.

[102]     The
plaintiff has clearly been rendered less capable overall from earning income
from all types of employment because of her injuries.

[103]     Based on
the evidence the plaintiff is currently capable of earning $48,000 per year. An
appropriate award utilizing the capital asset approach is to award the
plaintiff the equivalent of 2 years’ income.

[104]     I award the
plaintiff $96,000.00 for future loss of earning capacity.

Future Care

[105]     The
plaintiff argues that she should receive counseling sessions based on Dr.
Kettner’s recommendations as well as treatment for cognitive behavioral therapy
as recommended by Dr. Anderson.

[106]     I accept
that Dr. Anderson’s recommendation for 20 sessions of cognitive behavioral
therapy is reasonable as well as his recommendation that she may require 4 to 6
sessions per year on an ongoing basis thereafter. In my view a further five
years of sessions would be appropriate.

[107]     Based on treatment
costs of approximate $175 per session for 20 sessions would amount to $3,500.
Plus an average of five sessions per year for five years would be a further 25
sessions at $175 per session amounting to $4,375. The total amount for the
common behavioral sessions would be $7,875.

[108]     In
addition, the plaintiff is claiming the cost of the gym pass at $500 per year
for 25 years to age 75. In my view this is excessive . I award the plaintiff $2,500.00
for gym passes.

[109]     The total
award for future care costs are $10,375.00.

Special Damages

[110]     The
plaintiff has submitted a schedule of special damages which can be found at
Exhibit 2 Tab 26 in these proceedings. The total amount of special damages as
submitted by the plaintiff is $7,138.96.

[111]     The
defendants do not contest damages for user fees for physiotherapy, massage
therapy and chiropractic treatments, however they do dispute expenses claimed
for travel expenses which they say should more properly be included as
disbursements.

[112]     The
special expenses that I have difficulties with are as follows:

[113]     I have no
evidence as to what these special damages relate to. I am therefore deducting
them from the total of special damages claimed by the plaintiff in the amount
of $7,138.96.

[114]    
I award $3,725.32 for special damages.

SUMMARY

[115]     In
conclusion I award the plaintiff the following damages:

[116]    
The plaintiff is entitled to her costs of this action, unless there are
matters that I am unaware of, in which case the parties will be at liberty to
address those issues.

“R.
S. Tindale, J.”

Mr.
Justice R. S. Tindale