IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Kilian v. Valentin, |
| 2012 BCSC 1434 |
Date: 20120928
Docket: M100134
Registry:
Vancouver
Between:
Jennifer Kilian
Plaintiff
And
Cory Valentin and
Berezay Trucking Inc.
also known as M.A.A.S. Transport Inc.
Defendants
Before:
The Honourable Madam Justice Wedge
Reasons for Judgment
Counsel for the Plaintiff: | M.R. Hoogbruin |
Counsel for the Defendants: | M.A. Chaudhary |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
A. Evidence
concerning the Accident
B. Arguments
concerning Liability
C. Decision
concerning Liability
3. The
Plaintiffs Medical Condition
5. The
Plaintiffs Career Post-Accident
6. The
Physical Capacity Evaluation
5. Future
Income Loss/Loss of Earning Capacity
Loss of opportunity to obtain the
Masters Degree
Deductibility of Collateral Benefits
I.
INTRODUCTION
[1]
Jennifer Kilian was injured in a motor vehicle accident in Vancouver on
February 1, 2008, when her car was struck by a large semi-trailer truck driven
by Cory Valentin and owned by Berezay Trucking Inc.
[2]
Ms. Kilian had just executed a left-hand turn from St. George
Street (St. George) onto Southeast Marine Drive (S.E. Marine), having
entered a westbound traffic lane from a break in the median dividing the
eastbound and westbound traffic. Mr. Valentin was driving his truck
westbound in the middle lane on S.E. Marine. As he attempted to change lanes to
the lane closest to the median, the left rear section of his trailer struck Ms. Kilians
car.
[3]
Ms. Kilian sought medical care the day after the accident for
headaches and acute neck pain radiating into both shoulders. She also sought
psychiatric treatment for driving anxiety caused by the accident. While her
driving anxiety and her ongoing pain symptoms have resolved over time, Ms. Kilian
continues to suffer from occasional episodes of acute neck pain.
[4]
In this action, Ms. Kilian sought damages for the losses she
alleges she suffered as a result of the injuries she sustained in the accident.
[5]
The defendants did not deny that Ms. Kilian suffered injuries as a
result of the accident, but denied that the accident was the result of
negligence on the part of Mr. Valentin. They acknowledged that Ms. Kilians
injuries were caused by the accident and that if Mr. Valentin was at
fault, Ms. Kilian is entitled to damages for those injuries. However, the defendants
disputed the extent of her injuries and the duration of her pain symptoms.
II.
ISSUES
[6]
The issues are the following:
(a)
Are the defendants liable, in whole or in part, for the accident?
(b)
If so, what damages ought to be awarded for the injuries Ms. Kilian
suffered in the accident? More specifically, is Ms. Kilian entitled to:
1)
non-pecuniary damages;
2)
past wage loss;
3)
future wage loss;
4)
cost of future care;
5)
diminished housekeeping capacity; and/or
6)
special damages?
[7]
For the reasons that follow, I have concluded that the defendants are
liable for Ms. Kilians injuries because Mr. Valentin was wholly at
fault for the accident. I have also concluded that Ms. Kilian is entitled
to damages under most, but not all heads of damage claimed.
III.
LIABILITY
A.
Evidence concerning the Accident
[8]
The accident occurred at about 1:30 p.m. on February 1, 2008. Ms. Kilian
had just left a store on St. George, south of S.E. Marine. She was driving her
1996 Honda sedan, and was alone in the car.
[9]
S.E. Marine is a main traffic artery in Vancouver, running east and west.
It has three lanes in each direction, connecting Vancouver with municipalities
such as Burnaby and New Westminster. S.E. Marine is heavily used by trucks
transporting goods between the outlying municipalities and the industrial areas
of Vancouver.
[10]
St. George is not a through street, running only on the south side of
S.E. Marine. It intersects with S.E. Marine and ends at that point in a
T-intersection. Traffic at the T-intersection is governed by a stop sign. A
concrete median divides the east- and westbound traffic along this stretch of
S.E. Marine. There is a break in the concrete median at the T-intersection,
which is designed to allow traffic from St. George to access the westbound
lanes. The median break is approximately the width of one traffic lane. Vehicles
accessing the westbound lanes must cross the eastbound lanes of S.E. Marine,
enter the median break, and then turn left into a westbound lane.
[11]
Ms. Kilians destination was to the west. She stopped her car at
the stop sign on St. George until there was a break in the eastbound traffic. She
then drove across the eastbound lanes and stopped at the median break. After
waiting for the westbound traffic to clear, she completed her left turn into
the westbound lane closest to the concrete median and began accelerating as she
headed west.
[12]
Mr. Valentin, in the meantime, was driving his semi-trailer truck
westbound in the centre lane on S.E. Marine. The truck is 22 feet long, and the
trailer attached to his truck at the time was either 48 or 53 feet in length.
[13]
Mr. Valentins destination was an industrial park located to the
south of S.E. Marine. Access to the industrial park required a left turn on to
Main Street, which is a through street located a short distance beyond the
T-intersection at St. George. As he approached the T-intersection, Mr. Valentin
decided to change from the centre of the three westbound lanes to the left lane
in preparation for his left turn on to Main Street. He was not aware of the
median break at the T-intersection allowing vehicle access from St. George to
S.E. Marine.
[14]
The concrete median ends approximately 40 metres to the west of the T‑intersection
and is replaced by a solid yellow line. Ms. Kilian had travelled the
length of the median, and had just cleared it when the left rear section of Mr. Valentins
trailer struck the passenger side of Ms. Kilians car. Ms. Kilian
sounded her car horn and she either swerved or was pushed by the impact into
the closest eastbound lane. Fortunately, there were no vehicles travelling
eastbound in that lane at the time.
[15]
Mr. Valentin recalled checking in his left rear view mirror before
beginning his lane change. The lane was clear at that time. He recalled that
approximately 5 seconds later, as he was in the process of executing the lane
change, he looked in his rear view mirror a second time. Only then did he see Ms. Kilians
car. At that point, he observed the Honda Civic travelling westbound in the
left lane. Mr. Valentin swerved back into the centre lane in an attempt to
avoid the accident, but the left rear axle of the trailer hit Ms. Kilians
car as he did so.
[16]
Mr. Valentin did not see Ms. Kilians car at any point in time
before the accident.
[17]
Ms. Kilian recalled that at the time the trailer struck her car,
she had been travelling westbound in the lane closest to the median for
approximately 5 to 10 seconds. She estimated that she had reached a speed of
approximately 40 km/h at that time. She knew the impact occurred after she had
travelled beyond the length of the concrete median because her car crossed the
yellow line into the eastbound lane when she was struck.
[18]
The rear view mirror on the passenger side of Ms. Kilians car was
torn off by the impact and landed at the kerb beyond the farthest eastbound
lane. There was also damage to the right passenger door area and the front of
the right quarter panel.
B.
Arguments concerning Liability
[19]
The defendants denied liability, arguing that Ms. Kilian created a
hazardous situation by executing the left turn in two stages instead of one.
[20]
Ms. Kilian awaited clearance of the eastbound traffic before
advancing across S.E. Marine to the median break, and then waited 30 to 40
seconds for clearance of the westbound traffic before proceeding into the westbound
lane. According to the defendants, Ms. Kilian should have waited at the
stop sign on St. George until the roadway was clear of both eastbound and
westbound traffic, and then executed her turn onto S.E. Marine westbound
without first stopping in the median break. By proceeding into the median break
and then stopping until the westbound traffic had cleared, argued the defendants,
Ms. Kilian:
…created an unusual situation
resulting in her vehicle entering westbound S.E. Marine Drive from a position
where drivers would not expect and in an area where they may not be on the
lookout for [a vehicle]…
[21]
Having created this hazardous situation, argued the defendants, Ms. Kilian
then tried to execute an unsafe turn onto S.E. Marine when it ought to have
been apparent that Mr. Valentin was attempting a lane change from the
middle to the left lane.
[22]
Ms. Kilian argued that the theory of the defendants concerning
liability does not accord with the physical evidence. In order to accept the defendants
theory, one must conclude that the impact occurred while Ms. Kilian was
attempting to turn into the westbound lane from the median break. However, the
physical evidence establishes that Ms. Kilian was fully in the westbound
lane and had already travelled a considerable distance when Mr. Valentin
attempted his lane change. Accordingly, Mr. Valentin ought to have
observed Ms. Kilians vehicle before he attempted to change lanes, and was
negligent in failing to do so.
C.
Decision concerning Liability
[23]
I do not accept the defendants position concerning liability. The defendants
were unable to cite any statutory provisions or case law in support of their
argument that the operator of a motor vehicle must execute a left turn in the
one stage manner they describe.
[24]
The only statutory provisions cited to me in argument that have any
possible relevance in these circumstances are ss. 144 and 175 of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318.
[25]
Section 144 imposes a general duty upon all motorists not to drive
without due care and attention or without reasonable consideration for others
using the highway.
[26]
Section 175 states as follows:
(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.
[27]
The defendants argued that s. 175 imposed a duty on Ms. Kilian
to remain at the St. George intersection until both the eastbound and westbound
lanes were clear. I do not accept that argument. Section 175 applies most
plainly to circumstances in which a motorist is attempting a conventional left
turn across a thoroughfare with multiple lanes of oncoming traffic. In that
situation, the motorist must assess whether there is a vehicle or vehicles in any
of the approaching lanes which constitute an immediate hazard. That assessment
cannot be made on a lane-by-lane basis: Carich v. Cook (1992), 90 D.L.R.
(4th) 322 (B.C.C.A.).
[28]
Median breaks such as the one at the St. George T-intersection present a
different challenge and may well require a two-stage assessment when they are
used by motorists. There are no statutory provisions directly applicable. As
observed by Groberman J.A. in Salaam v. Abramovic, 2010 BCCA 212 at para. 21,
ultimately a court must determine whether each of the parties in an accident
met their common law duties of care. That determination is informed not only by
the rules of the road but by the reasonableness of the actions of the parties. Mr. Justice
Groberman explained, as follows, why that is the case:
[21] 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 the exclusive measures of
that standard.
[29]
Common sense would suggest that Ms. Kilian, when halted at the stop
sign on St. George, had a duty to first determine whether there were any
eastbound vehicles posing a hazard to her crossing the eastbound lanes. Once
across the eastbound lanes and halted in the median break, she had a duty to
determine whether there were any westbound vehicles which posed a hazard to her
entering a westbound lane.
[30]
In short, the median at the intersection between St. George and S.E.
Marine was there to be used in precisely the manner it was used by Ms. Kilian.
[31]
The issue is whether Ms. Kilian, once having entered the median
break, exercised reasonable care in assessing that there was no westbound
traffic posing a hazard before she proceeded to enter the westbound lane in
question.
[32]
The defendants theory rests on their assertion that Ms. Kilian
must have been in the process of entering the left lane when she was struck by Mr. Valentins
trailer. However, the physical evidence does not support that assertion. The
physical evidence supports Ms. Kilians assertion that she was fully in
the left lane, heading westbound, and had travelled at least 40 metres beyond
the median before Mr. Valentin attempted his lane change. Mr. Valentins
evidence also supports Ms. Kilians version of events. He acknowledged
that when he first noticed Ms. Kilians vehicle just before impact, it was
fully in the left lane travelling westbound.
[33]
I am satisfied that at the time Ms. Kilian merged into the
westbound lane on S.E. Marine, she took reasonable care to ensure there were no
vehicles approaching from the west that could cause a hazard to her or others. She
took reasonable care to ensure her safety and that of other users of the road. Had
Mr. Valentin been exercising reasonable care as he proceeded in the centre
lane, he would have observed Ms. Kilians car in the left lane before he
attempted the lane change. Having concluded that Mr. Valentin failed to
exercise reasonable care, I conclude that the defendants are liable for the
damages suffered by Ms. Kilian as a result of the accident.
IV.
DAMAGES
A.
Evidence
1.
Plaintiffs Background
[34]
Ms. Kilian is now 31 years of age. She was 28 at the time of the
accident in 2008.
[35]
Ms. Kilian was born and raised in Richmond, B.C. She graduated from
high school in 1998, after which she attended the University of British
Columbia. She obtained a Bachelor of Arts in geography in 2002, and a Bachelor
of Education in elementary school education in 2007.
[36]
Before obtaining her teaching qualifications, Ms. Kilian worked as
an event coordinator for the Childrens Wish Foundation and for an
out-of-school care program. She also spent three years working in the cruise
ship industry as an event coordinator.
[37]
In the fall of 2007, Ms. Kilian obtained a temporary teaching
position at Errington Elementary School in Richmond working four days per week
in a .8 full time equivalent (FTE) position. She also made herself available
the remaining one day per week for assignments as a teacher on call (TOC).
[38]
As noted earlier, the accident occurred in February 2008. By then, Ms. Kilian
had been teaching at Errington on a temporary contract for five months. Ms. Kilians
temporary contract was renewed for the 2008-2009 and 2009-2010 school years.
[39]
In May 2010, Ms. Kilian obtained a graduate diploma from Simon
Fraser University in Learning Assistance. In September 2010, Ms. Kilian
became a permanent teach at Errington with the Richmond School District working
under a continuing contract.
[40]
Ms. Kilian purchased a condominium in Richmond in 2007, where she
continues to live. From November 2010 to May 2012 she lived in a relationship
with Brendan Jones, but that relationship has now ended. She has no children.
[41]
Ms. Kilians health before the accident was excellent. She had no
physical limitations. She was outgoing and enjoyed a busy social life with a
wide group of friends. She enjoyed going to the pub to watch hockey games, and
attending clubs to dance. While she was not committed to any particular
athletic endeavours, Ms. Kilian was quite physically active and
participated in a variety of recreational activities such as golf, wakeboarding
and scuba diving. She also travelled extensively.
2.
Causation
[42]
As noted earlier, the passenger side of Ms. Kilians car was
damaged and the rear view mirror torn off in the accident. The damage involved
scrapes and some dents. The cost of the repairs was $2,644.
[43]
The medical evidence called at trial by the plaintiff established that
the accident caused the onset of Ms. Kilians medical issues and has been
the cause of her ongoing difficulties.
[44]
Causation was not disputed. Although the defendants disputed the extent
and severity of Ms. Kilians symptoms, they readily acknowledged at trial
that she suffered myofacial (soft tissue) injuries in the February 2008
accident, and developed a significant (although now resolved) driving phobia. The
defendants also acknowledged that in the event liability is established, Ms. Kilian
is entitled to some compensation for those injuries and symptoms.
3.
The Plaintiffs Medical Condition
[45]
Ms. Kilian was emotionally shaken following the accident, but did
not think it necessary to seek medical assistance immediately. She drove to her
parents home and stayed there for the balance of the day. By early evening,
she was experiencing headaches radiating from pain in her neck. She attended a
walk-in clinic in Richmond the following morning, where she was assessed by a
physician and given pain medication and muscle relaxants.
[46]
Ms. Kilian then sought and obtained a medical appointment with her
family physician, Dr. Ted Cragg, on February 7, 2008. At that visit, she
reported pain in her neck, shoulders and head. The most severe and persistent problem
was her neck pain.
[47]
Ms. Kilians symptoms were most acute in the first six months
post-accident, and remained quite acute for a year to 16 months. To deal with
her neck and shoulder pain, she received massage, chiropractic and acupuncture
treatments. Her physician initially prescribed morphine for the pain, but the
morphine affected her mental acuity. She was then prescribed codeine, but she
suffered an allergic reaction to the drug. Tramacet, another pain medication
prescribed by her physician, made her nauseous. Celebrex caused stomach
bleeding. She was finally prescribed Dilaudid, which she took only before bed
because of its sedative effects.
[48]
Ms. Kilian spent a great deal of time in the first year after the
accident attending medical and therapeutic appointments. She continued to work
in her contract teaching position, but took several days off due to her neck
and shoulder pain. In addition, she removed herself from the TOC list and, as a
result, worked only a four-day week. In that first year following the accident,
Ms. Kilian also attended medical and therapeutic appointments up to three
times per week.
[49]
In his medical report dated August 26, 2009, Dr. Cragg reviewed his
chart notes concerning Ms. Kilians appointments during the first year
following the accident, and summarized Ms. Kilians condition as follows:
…Ms. Kilian experienced
substantial disability for over one year, as a direct result of the accident in
question. There were numerous visits in which she was in tears because of the
pain, frustration with the slowness of recovery, and because of her inability
to engage in aspects of her work, recreational and social life. I was also
impressed with her willingness to try any reasonable medicinal, physical or
alternative treatments to help her along the road to recovery, and to perform
the regular physiotherapeutic manoeuvres she was taught to do on her own. Despite
her often disabling symptoms Ms. Kilian carried on with her teaching work
except for occasional days when her symptoms precluded being able to function.
[50]
Dr. Craggs diagnosis was as follows:
The
diagnosis is of myofascial and ligamentous strain primarily of the upper neck
and its attachments to the base of the skull, brought on by abrupt
acceleration/deceleration movements of the head in relation to the neck, at the
moment of impact.
[51]
Dr. Cragg also stated that the prognosis for Ms. Kilians
complete recovery was uncertain at that time.
[52]
Ms. Kilian continued to see Dr. Cragg until he retired from
practice in January 2010. She then began seeing Dr. Cheryl Hau. In her
medical report dated June 23, 2011, Dr. Hau stated as follows:
After the initial year after her MVA, Jennifers neck pain
and headaches improved and she only suffered occasional flare-ups, which
required Dilaudid (hydromorphone) to ease her symptoms. She reported that she
had been about 70% better up until a recent ankle sprain in April 2011. She
routinely manages her neck pain and headaches with Yoga and stretches. However,
with her recent ankle sprain, she hadnt been able to participate in Yoga and
stretches. Thus, her neck pain and headaches worsened and she reported that she
is only 50% better now.
Jennifer is currently able to
complete all her activities of daily living and all her instrumental activities
of daily living. However, she does find that she has modified some of her
activities (e.g., carrying multiple lighter loads of groceries versus one large
load). She hasnt participated in the same recreational activities as those she
enjoyed prior to her MVA….
[53]
Dr. Haus diagnosis was chronic myofascial pain and cervicogenic
headaches secondary to a MVA. Dr. Hau provided a prescription for
hydromorphone and amitriptyline, and advised Ms. Kilian to resume yoga
when her ankle sprain settled.
[54]
Dr. Hau provided a further report dated February 13, 2012, which
summarized Ms. Kilians visits and treatments from August 2011 to the date
of the report. Dr. Hau described an exacerbation in Ms. Kilians neck
symptoms which occurred following a vacation trip to Calgary in August 2011. This
exacerbation continued until November 2011, when it abated. However, Dr. Hau
noted that a further exacerbation occurred in December 2011 and extended into
January 2012, following a period of inactivity due to a series of respiratory
infections.
[55]
Dr. Hau reported that currently Ms. Kilian continues to have
some chronic neck pain with occasional acute exacerbations which requires
prescription medications such as hydromorphone and therapy such as massage and
chiropractic therapy. It was Dr. Haus opinion that Ms. Kilian would
be required to take days off work when the neck pain was severe.
[56]
Ms. Kilian also attended a specialist in physical medicine and
rehabilitation, Dr. John le Nobel. He assessed Ms. Kilian on three
occasions: July 12, 2010, April 20, 2011, and March 13, 2012. He submitted two
reports dated April 28, 2011 and March 14, 2012.
[57]
Dr. le Nobel testified that the objective findings of his physical
examinations of Ms. Kilian on each occasion were normal — that is to say,
the range of motion in Ms. Kilians neck and shoulders were within the
normal range. In the most recent examination of March 2012, Ms. Kilian did
not complain of any pain or tenderness in her neck and shoulders, but reported
that she had experienced acute pain during exacerbations of her neck symptoms
on two occasions in the preceding months.
[58]
Dr. le Nobel confirmed that Ms. Kilian had improved between
the first and last assessments. In his report dated March 14, 2012, he stated
that further improvement in Ms. Kilians condition was reasonably
anticipated through the exercise based rehabilitation. However, barring some
as yet unachieved improvement he did not anticipate a full return to all of
her pre-accident capabilities.
[59]
Dr. le Nobel explained that his guarded prognosis was based on Ms. Kilians
reports of occasional but ongoing exacerbations of her neck pain. He stated in
his most recent report that the longer a chronic pain condition persists the
more likely it will continue in the future.
[60]
Although Dr. le Nobel expressed reservations about Ms. Kilian
achieving her pre-accident capabilities, he did not suggest that Ms. Kilian
was currently experiencing, or would experience in the future, functional
limitations with respect to her work as a teacher or her normal activities of
daily living. The most significant concern, according to Dr. le Nobel, was
the occasional exacerbation of the chronic neck condition which was likely to
occur from time to time into the foreseeable future.
[61]
Ms. Kilian also developed driving anxiety following the accident,
for which she eventually sought treatment from a psychiatrist, Dr. Roy
OShaughnessy, and psychological counselling on referral. Approximately 18
months post-accident, Dr. OShaughnessy was of the opinion that Ms. Kilian
continued to suffer from driving phobia which left her with a partial
disability. At that point, Ms. Kilian was able to drive on a day-to-day
basis in the Richmond area close to her home, but could not drive longer
distances or in busy areas such as downtown Vancouver.
[62]
Ms. Kilian obtained treatment from a clinical psychologist and the
driving phobia is now completely resolved.
[63]
In the 12 to 16 months following the accident, Ms. Kilian reduced
her teaching hours because of her neck and shoulder pain and as a result of
attending numerous medical and therapeutic appointments. Instead of arriving at
school at least an hour before the children arrived and staying an hour after
they left, she would arrive shortly before the children arrived and leave
immediately after they left.
[64]
Ms. Kilian testified about the extent of the pain and discomfort
she experienced in the year following the accident. She was working four days
per week teaching Grades 2 through 4 children, and worked the fifth day as a
teacher on call for the school district. She continued teaching in her
temporary contract position following the accident, and took as few sick days
as possible despite her neck and shoulder pain, because she was a relatively
new hire and did not want to jeopardize her future job opportunities with the
school district. However, she did not make herself available for TOC
assignments the fifth day of work because she used that time to rest and
recover from her scheduled days of teaching.
[65]
Ms. Kilian also used a number of sick days following the accident. She
took the sick days during the months immediately after the accident in order to
cope with her ongoing pain. Thereafter, she used the sick days when she
experienced the episodic exacerbations.
[66]
Ms. Kilian testified that during the first year post-accident, the
neck pain was aggravated by the physical demands of her job, disrupted sleep
and headaches. Aggravation of the neck symptoms made her more temperamental and
irritable with colleagues and students, and with her family and friends. She
tried numerous prescription drugs and therapeutic interventions.
[67]
Despite these difficulties, Ms. Kilian testified that she continued
to perform all of her activities of daily living and performed her housework
without assistance. She was no longer meticulous about cleaning, and left some
heavier chores unfinished from time to time, but she performed all basic
housework and chores.
[68]
Ms. Kilian agreed with Dr. Haus impression that after the
first year post-accident, her neck pain and headaches improved with the
exception of the occasional times during which she experienced an exacerbation
or flare-up of her symptoms. She also agreed with Dr. Haus observation
that routine yoga and stretching were effective techniques for the management
of her neck pain.
[69]
Several lay witnesses testified at trial about the effect of Ms. Kilians
injuries on her functioning and emotional well-being. Ms. Kilians closest
friend, Jamie Lepore, testified that she saw Ms. Kilian much less
frequently after the accident. They discontinued their longstanding practice of
meeting weekly to watch a favorite television program, and Ms. Kilian
frequently cancelled evening walks due to her neck pain.
[70]
Ms. Kilians mother, Marj Kilian, testified that following the
accident, Ms. Kilian lost her characteristic sparkle. In the ensuing
year, Ms. Kilian was much less social and her mood became quite low. Marj
Kilian has observed that although her daughter has gradually improved over
time, she still suffers exacerbations and has never fully regained her previous
disposition.
[71]
Before the accident, Ms. Kilian provided respite care for four
hours every Monday evening for a young boy, Ben, who suffered from severe
autism and was living with his grandmother. She gave the care under a contract
with the Richmond Society for Community Living. Ms. Kilian had formed a
special bond with Ben. Following the accident, Ms. Kilian found that she
could not properly care for Ben. She had neither the physical nor the emotional
capacity to do so. She gave up the work, and the society found a replacement
caregiver.
[72]
Ms. Kilians former school principal, Rita Gibbs, testified about Ms. Kilians
physical limitations as a teacher in the year following the accident. Ms. Gibbs
was the principal at Errington Elementary from 2006 until late 2011. At the
time of the accident in February 2008, Ms. Kilian had been working at the
school as a temporary teacher for approximately five months. Ms. Gibbs
observed that in the school year following the accident Ms. Kilian taught
a physical education class but took care not to demonstrate strenuous aspects
of sports and did not take part in several of the activities. Ms. Gibbs
recalled that during the first year after the accident, she told Ms. Kilian
on several occasions to leave immediately after class because she observed Ms. Kilian
to be in obvious pain.
[73]
Ms. Gibbs testified that despite her physical limitations, Ms. Kilian
was a gifted and dedicated teacher with a great sense of responsibility to her
students and to the school. According to Ms. Gibbs, Ms. Kilian had
the potential to progress within the school system to administrative positions
such as Vice-Principal and Principal. Ms. Gibbs encouraged Ms. Kilian
to consider administration as a long-term career goal.
[74]
As the school principal, Ms. Gibbs was responsible for completing
yearly assessments concerning the teaching performance of teachers at Errington
Elementary. The assessments concerning Ms. Kilian, which were completed
after the accident, were glowing in nature. She had only positive comments to
make about all aspects of Ms. Kilians job performance.
[75]
Brendan Jones testified at trial. He met Ms. Kilian in August 2010,
more than two years after the accident. He moved into her condominium in
November 2010, and lived with her in an intimate relationship from then until
May 2012.
[76]
He testified that Ms. Kilians neck symptoms, while of varying
degrees, always presented a level of discomfort for her. He described Ms. Kilians
daily routine as going to work early in the morning, running errands after work
or attending medical appointments, coming home and having dinner, and then watching
television or relaxing with a book. He described himself as having become
something of a house husband, performing quite a bit of housework. He
acknowledged, however, that during this time he was taking courses and studying
at home.
[77]
Mr. Jones testified that he left the relationship for a number of
reasons, some of which were unrelated to Ms. Kilians physical
difficulties. However, Mr. Jones suggested that as an avid sportsperson,
he had become restless with their somewhat sedentary lifestyle which he
attributed to Ms. Kilians neck symptoms. He had also tired of the demands
on his time which he perceived to be, at least in part, the result of her
injury.
[78]
Ms. Kilians perspective was somewhat different. She recalled that
she was primarily responsible for the housework while Mr. Jones shared
some of the cooking responsibilities and did some of the more strenuous chores
such as taking out the garbage. There was no yard work or maintenance because Ms. Kilians
home is a relatively new condominium with a deck but no yard.
[79]
Ms. Kilian testified that she attempted to become involved in more
sports as a result of her relationship with Mr. Jones. She attempted to
learn to ski. On a trip to Alberta in 2011, she went with Mr. Jones to the
Olympic Park in Calgary and, at his encouragement, participated in bob sledding
and zip lining with him. The trip to Calgary resulted in an episode of acute
neck pain which lasted through the fall of 2011.
4.
Periodic Exacerbations
[80]
Dr. Craggs records reflect that Ms. Kilian reported in
September 2008 that she rated her ongoing pain at 2 to 3 out of 10 with
occasional exacerbations. Dr. Hau, who became Ms. Kilians family
physician in February 2010, documented a number of recent exacerbations. The
first occurred in August 2011, following the trip to Calgary where Ms. Kilian
participated in bobsledding and zip lining. The second occurred in November
2011, and appears to have been related to the August 2011 difficulties.
[81]
In December 2011, Ms. Kilian suffered an upper respiratory
infection which prevented her from performing her yoga and stretching
exercising. That led to an exacerbation of her neck pain in late December 2011.
Another respiratory infection in January 2012 triggered a further exacerbation.
[82]
At trial, Ms. Kilian testified that she had suffered another
exacerbation in late March 2012 which was ongoing. The exacerbation occurred
following a session with the kinesiologist who designed an active exercise
rehabilitation program for Ms. Kilian.
[83]
Approximately six weeks before trial, Mr. Jones ended the
relationship. Ms. Kilian testified that she had not expected the
relationship to end. She had hoped to marry Mr. Jones, and the termination
of the relationship came as a shock to her. She has suffered stress as a
result, which has manifested itself in loss of appetite and intensification of
her neck pain.
5.
The Plaintiffs Career Post-Accident
[84]
Ms. Kilian testified that it had always been her dream to work as a
classroom teacher in an elementary school. She was thrilled to obtain the
temporary teaching contract with the Richmond School District.
[85]
As noted earlier, Ms. Kilians temporary teaching contract was
renewed for the school year 2008-2009 following the accident. It was renewed
again for the subsequent school year, 2009-2010. In each of those years, Ms. Kilian
taught at the junior elementary level.
[86]
In May 2008, Ms. Kilian began attending a part-time graduate
studies program offered by Simon Fraser University. The program qualifies
teachers to work as Resource Room teachers and provide instruction to students
for whom English is a second language (ESL). Resource Room teachers work with
students and their teachers, providing special help and resources for students
who require additional assistance. Many such students are also ESL students. Ms. Kilian
was interested in working as a Resource Room teacher and, as a result,
participated in the program while working at Errington Elementary.
[87]
The graduate studies program required Ms. Kilian to attend the program
every Wednesday evening for several hours, and for two concentrated weeks
during the summer. Ms. Kilian participated in the program from May 2008 to
May 2010, when she successfully obtained her graduate diploma.
[88]
Ms. Kilian was the successful applicant for a full-time continuing
job at Errington Elementary as the Resource Room/ESL teacher commencing in
September 2010. Ms. Gibbs testified that continuing teaching jobs are rare
in the Richmond School District and competition for the jobs is fierce. Ms. Kilians
successful candidacy spoke to her excellence as a teacher and her successful
completion of the graduate studies diploma.
[89]
Dr. Leyton Schnellert was an instructor and faculty associate at
Simon Fraser University, teaching in the graduate diploma program for much of
the time Ms. Kilian attended the program. Dr. Schnellert interacted
with Ms. Kilian on a weekly basis during the school year, and on a daily
basis during the intensive summer program.
[90]
Dr. Schnellert testified at trial that Ms. Kilian was an excellent
student in the diploma program. She completed all of her assignments promptly
and diligently, and some of her assignments were of such good quality that they
could have been submitted to professional teaching journals. She was highly
organized and very committed to the program. She was also very generous with
her time. By way of example, he recalled that she assisted a classmate who was
sick during the program.
[91]
Students who complete the graduate studies diploma may apply for the
Masters of Education program at SFU and, as a result of having obtained the
diploma, can obtain the Masters degree with one further year of study instead
of the usual two years. There is one proviso: students who have obtained the
diploma must gain entry to the Masters program within three years of completing
the diploma.
[92]
Dr. Schnellert testified that entry to the Masters program is
highly competitive as only 20 students are admitted each year.
[93]
Ms. Kilian applied for entry to the Masters program in January
2012, hoping to begin the program in the fall of 2012. Applicants must submit
two pieces of written work in support of the application. Ms. Kilian did
so. However, she learned in March 2012 that her application was not successful,
primarily because of inadequacies in one of the papers she submitted. Ms. Kilian
expressed the view that the quality of the written pieces she submitted with
her application were likely affected by the exacerbation of her neck pain at
the time she applied.
[94]
Ms. Kilian has regarded her current teaching job as the culmination
of a life-long dream. Until recently, she expressed the view that she wished to
remain a classroom teacher and did not intend to pursue a job in teaching
administration. However, at trial Ms. Kilian testified that as a result of
encouragement from her former principal, Ms. Gibbs, in the fall of 2011,
she has begun to consider the possibility of eventually applying for a
Vice-Principal or Principal position. She acknowledged that administration was
a long-term goal. Ms. Gibbs worked as a teacher for over 25 years before
she was appointed as a Vice-Principal, and another 5 years before she was
appointed Principal of Errington Elementary.
[95]
As noted earlier, Ms. Gibbs expressed great confidence in Ms. Kilians
ability to move into an administrative position at some point in the future.
6.
The Physical Capacity Evaluation
[96]
Ms. Kilian participated in a Physical Capacity Evaluation in August
2011, conducted by Cynthia Morin, Occupational Therapist. A report dated
October 5, 2011, prepared by Ms. Morin, was submitted at trial by counsel
for Ms. Kilian (the PCE Report).
[97]
The stated purpose of the evaluation was to determine the feasibility of
employment for Ms. Kilian. Ms. Morin concludes, based on her
extensive testing, that Ms. Kilian is considered to be employable (with a
few physical restrictions) on both a part-time and full-time basis, with the
potential to work in limited, light, and some medium strength occupations. Specifically,
the report concluded that Ms. Kilian is employable as a teacher, but with
restrictions relating primarily to work that requires prolonged periods of
sitting, repetitive overhead reaching, and postures requiring sustained neck
flexion.
[98]
The PCE Report is detailed and thorough. However, I have concluded that
it is of limited assistance to the Court. Ms. Kilian is qualified as an
elementary school teacher. She has been teaching since shortly before the
accident, and has been performing well above expected standards for that entire
time. All but five months of her teaching career has been post-accident. For
three of those years, she taught elementary school children as a classroom
teacher.
[99]
Ms. Kilians work is now quite specialized. She is qualified to
provide teaching assistance and additional resources to students. She has
obtained a full-time continuing position in that area. As a Resource Room/ESL
teacher, she supports other teachers and their students. She is also part of
the School Based Team which evaluates students to determine the kind of
additional educational resources they may require.
[100] The
assessment did not test for the specific requirements of Ms. Kilians job,
nor does the PCE Report focus on those requirements.
[101] Ms. Kilian
was tested for six hours, with one half hour break. Many of the tests involved
physical exertion that was not required of Ms. Kilian as an elementary
school teacher or, more specifically, as a Resource/ESL teacher.
[102] Neither Ms. Kilian
nor Ms. Gibbs, who evaluated Ms. Kilians classroom performance,
testified that Ms. Kilian was incapable of performing any of the physical
requirements of her job. As noted earlier, Ms. Kilian was careful in the
first year after the accident to limit her participation in the activities she
taught in her P.E. classes. Ms. Kilian said that the most significant
challenge occurred during the longer meetings with other teachers and the
school-based team, when she experienced neck and shoulder pain. When that
occurred, she stood and stretched or changed her position in the classroom. However,
she did not suggest that any job modifications were necessary.
[103] Ms. Gibbs
was a highly supportive principal. She testified that teachers in the Richmond
School District could request ergonomic assessments of their workplaces. Ms. Kilian
did not make any such request, nor did she suggest in her evidence that she
required any modifications to her classroom or her work functions generally.
[104] In
cross-examination, Ms. Morin was taken through the results of the
functional tests as they related to the specific requirements of Ms. Kilians
job. She agreed that when considering the specific demands of the job, Ms. Kilian
was capable of performing them.
[105] Ms. Morins
most recent interaction with Ms. Kilian was on September 15, 2011. In the
report she submitted shortly thereafter, Ms. Morin noted that Ms. Kilian
intended to continue working as a classroom teacher for the foreseeable future.
For that reason, the classroom environment in which she currently works was not
likely to change, and no worksite assessment was necessary.
B.
Discussion
[106] Ms. Kilian
has claimed damages under several heads. Discussion concerning each head of
damage, and my decision concerning an award for each, follows.
1.
Non-Pecuniary Loss
Legal Principals
[107] The
purpose of an award for non-pecuniary loss is to compensate the plaintiff for
pain, suffering, disability, and loss of enjoyment of life. The loss must be
assessed for both losses suffered by the plaintiff to the date of trial and for
those she will suffer in the future. The award of a sum of money is to permit
the plaintiff to substitute other amenities for those she has lost.
[108]
In Stapley v. Hejslet, 2006 BCCA 34 [Stapley], Kirkpatrick
J.A., writing for a majority of the Court, quoted Lindal v. Lindal,
[1981] 2 S.C.R. 629 with respect to the underlying rationale for non-pecuniary
damages and the considerations that should guide a court in awarding such
damages (at para. 45):
[45] Thus the amount of
an award for non-pecuniary damage should not depend alone upon the seriousness
of the injury but upon its ability to ameliorate the condition of the victim
considering his or her particular situation. It therefore will not follow
that in considering what part of the maximum should be awarded the gravity of
the injury alone will be determinative. An appreciation of the individual’s
loss is the key and the "need for solace will not necessarily correlate
with the seriousness of the injury" [Emphasis in original.]
[109] The
factors to be considered, outlined by the Court in Stapley, are now
well-established. They include the following:
·
the age of the plaintiff;
·
the nature of the injury;
·
the severity and duration of pain;
·
disability;
·
emotional suffering;
·
loss or impairment of life;
·
impairment of family, marital and social relationships;
·
impairment of physical and mental abilities;
·
the plaintiffs stoicism (a factor that should not penalize the
plaintiff).
2.
Positions of the Parties
[110] Ms. Kilian
argued that she suffered acute pain and anxiety following the accident which
drastically affected both her social and her working life in the first year
following the accident. The neck pain is now chronic, she submits, and
continues to have a disabling effect as a result of the periodic exacerbations.
[111] Ms. Kilian
seeks non-pecuniary damages in the amount of $95,000.
[112] The defendants
do not dispute that Ms. Kilian is entitled to damages for non-pecuniary
loss as a result of the pain and disruption to her life in the aftermath of the
accident. The defendants position is that while Ms. Kilian suffered acute
neck pain in the first six to twelve months following the accident, her
symptoms largely resolved within the first year. The defendants noted that Ms. Kilian
acknowledged having good years in 2010 and 2011, until the exacerbation of her
neck pain in the fall of 2011. They argued that although there have been
occasional exacerbations of the neck pain, the most recent ones cannot be
attributed to the accident. Overall, said the defendants, Ms. Kilian has
managed to carry on a normal life for the past three years.
[113] The defendants
argue that an award of non-pecuniary damages should be in the range of $55,000.
3.
Discussion
[114] I have
reviewed the case law cited by the parties. Of those cited by Ms. Kilian,
the fact patterns in the decisions of Kasidoulis v. Russo, 2010
BCSC 978 and Pham-Fraser v. Smith, 2010 BCSC 322 [Pham-Fraser] most
closely resemble the facts of this case. The plaintiff in each case suffered
slightly more severe injuries than Ms. Kilian, and the ongoing physical
limitations were somewhat more severe than hers. In those cases, the
non-pecuniary damages awards were $90,000 and $95,000 respectively.
[115] The defendants
cited authorities in which the range of damages for non-pecuniary loss was
$50,000 to $75,000 (Boyle v. Prentice, 2010 BCSC 1212; Tarzwell v.
Ewashina, 2011 BCSC 1464; Guthrie v. Narayan, 2012 BCSC 734; and Chalmers
v. Russell, 2010 BCSC 1662). The fact patterns in the first two cases cited
most closely resemble those of the present case; in those cases, the awards for
non-pecuniary loss were $75,000 and $65,000 respectively.
[116] I accept
the argument of Ms. Kilian that in the first year to 16 months following
the accident, she suffered acute neck and shoulder pain which significantly
interfered with her day-to-day living and enjoyment of life. She continued to
work four days per week but used the fifth day, previously an on call day, to
recuperate and used sick days to deal with the most acute episodes of pain. She
had little or no social life. She attended numerous medical and therapeutic
appointments. She was required to take medications for pain which resulted in
additional health problems.
[117] Ms. Kilian
also experienced a significant driving phobia which required initial sessions
with a psychiatrist and numerous follow up sessions with a clinical
psychologist before the phobia resolved.
[118] Ms. Kilian
has had lengthy periods of time since the first year of the accident in which
she has been symptom-free. I accept that there are occasional exacerbations
which, while they last, significantly affect Ms. Kilians enjoyment of
life. All of the physicians who have offered opinions concerning Ms. Kilians
prognosis stated that absent the exacerbations, Ms. Kilian is capable of
performing all of her basic activities of daily living. Further, they have
stated that while their predictions are guarded, they believe the physical
symptoms she experiences during exacerbations will likely continue to improve. None,
however, predict that Ms. Kilian will be symptom-free in the future.
[119] Taking
into account all of the circumstances of Ms. Kilians case, I conclude
that an appropriate award for non-pecuniary loss is $75,000.
4.
Past Income Loss
[120] Ms. Kilians
claim for past income loss has three components, with which I will deal in turn.
Teacher-on-Call Days
[121] First, Ms. Kilian
claims for the loss of 15 TOC days with the Richmond School Board between
February 15 and October 17, 2008. As noted earlier, at the time of the accident
Ms. Kilian was working four days per week in her temporary teaching
position and was available the fifth day of each week to be called in to cover
absences of other teachers.
[122] Ms. Kilian
provided evidence of the days she was unavailable for TOC work as a result of
her injuries or because she was attending appointments for medical treatment. Notably,
while there were many more TOC days available, she has claimed a total of 15
TOC days in that period. The TOC rate in the 2007-2008 year was $225 per day. All
but one of the days claimed falls within that time period. The rate during the
2008-2009 year was $245. The total loss, gross, is $3,395.
[123] The defendants
argued that Ms. Kilian may not have been called on some of the days she
has claimed, and that there ought to be a deduction for the contingency that Ms. Kilian
may not have received an on-call assignment.
[124] However, Ms. Kilian
has not claimed for all days that TOC assignments may have been available to
her. The claim for 15 TOC days takes into account the contingency argued by the
defendants. Accordingly, Ms. Kilian is entitled to $3,395 for the lost TOC
days. That amount is gross and is therefore subject to deductions for income
tax.
Sick Bank
[125] The second
component is Ms. Kilians claim for reimbursement of her claim for sick
days from her sick bank entitlement under the collective agreement. Ms. Kilian
kept a written record of the reasons for each sick day claimed. She has claimed
only those days claimed as a result of her injuries. Ms. Kilian has used a
total of 67.3 sick days, but her claim is limited to 29.6 days.
[126] The cost
to Ms. Kilian to buy back those 29.6 days is $307, for a total of $9,087. Ms. Kilian
testified that she intended to buy back those days, as she has very few days
left in her sick back and is concerned about future exacerbations of her neck
symptoms.
[127] I conclude
that Ms. Kilian is entitled to an amount of $9,087 to replenish her sick
bank. Given the purpose of this award, there will be no deduction for income
taxes on this amount (Bjarnson v. Parks, 2009 BCSC 48).
Respite Care Job
[128] As noted
earlier, before the accident Ms. Kilian was providing respite care to a
child for four hours every second week through the Richmond Society for
Community Living. She earned $56 for each four-hour shift. She planned to carry
on performing this work indefinitely, as she had developed a strong bond with
the child. As a result of her injuries, she had to give up the job. An
alternate caregiver was found for the child. The executive director of the
Society testified that the childs family has continued to access respite care.
[129] Ms. Kilian
claimed damages in the amount of $6,552, representing the amount she would have
earned had she continued providing the respite care up to the time of trial.
[130] I accept
that Ms. Kilian would likely have continued to provide respite care to the
child for some time, but I do not accept that she would have continued the job
for four years. In May 2008 Ms. Kilian enrolled in the graduate program at
Simon Fraser University which took up several hours for one evening each week,
and two weeks during the summer. After obtaining her diploma from the graduate
program, she obtained a full-time continuing teaching position. At most, in my
view, Ms. Kilian would have continued providing respite care until she
obtained the full-time position in 2010. Accordingly, I award her $3,200 for
the loss of income from the respite care job. This award is subject to income
tax deductions.
Past Income Loss: Total Award
[131] In total, Ms. Kilian
is entitled to $15,682 for past income loss.
5.
Future Income Loss/Loss of Earning Capacity
[132] Ms. Kilians
claim for future income loss has three components. The first concerns future
access by Ms. Kilian to her sick bank for reasons related to the injuries
she suffered in the accident. The second concerns the delay Ms. Kilian
alleges she will suffer, as a result of her injuries, in obtaining her Masters
Degree, and the economic consequences of such a delay with respect to her
placement on the salary grid. The third, related to the second, concerns the
likelihood that her injuries will impair her chances of obtaining an
administrative position and the economic consequences of that impaired
opportunity.
[133] I will
deal with these aspects of the claim in turn.
[134]
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal
reiterated the burden carried by the plaintiff concerning loss of future
earning capacity. At para. 32, the Court said the following:
[32] A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. [as he then
was] in Chang, and by Tysoe J.A. in Romanchych, that there is a
real and substantial possibility of a future event leading to an income loss. If
the plaintiff discharges that burden of proof, then depending upon the facts of
the case, the plaintiff may prove the quantification of that loss of earning
capacity, either on an earnings approach, as in Steenblok, or a capital
asset approach, as in Brown. The former approach will be more useful
when the loss is more easily measurable, as it was in Steenblok. The
latter approach will be more useful when the loss is not as easily measurable,
as in Pallos and Romanchych. [Emphasis in original.]
[135] As the
authorities establish, an appropriate award under this head of damage must be
based on the medical evidence.
[136] Ms. Kilian
emphasized the further observation of the Court (at para. 32) that a
plaintiff may be able to meet the burden of real and substantial possibility of
a future loss of income despite having returned to his or her former
employment.
[137] Ms. Kilian
submitted that while she missed very few work days in the months immediately
following the accident, she limited her work to four days per week which gave
her time to recover from the work week. In addition, at the time of the
accident she was only a few months into her contract as a new teacher in the
school district, and attended work even when in pain because she did not want
to jeopardize her chances of obtaining a permanent position.
Use of Sick Days
[138] I will
turn first to the issue of the loss Ms. Kilian will likely suffer in the
future as a result of having to access her sick bank when she has exacerbations
of her neck pain.
[139] As noted
earlier, of the 67.3 sick days Ms. Kilian has used since February 1, 2008,
29.6 of them were used for reasons related to the injuries she suffered in the
accident. Reviewing the use of sick days within a particular school year, she
used as few as .4 of a day in the 2008-2009 school year, and as many as 9.4 in
the 2011-2012 school year.
[140] Ms. Kilian
argued that the upward trend in her use of sick days for accident-related
reasons establishes that she will require as many as 15 sick days per year in
future as a result of her injury.
[141] I do not
accept Ms. Kilians position for a number of reasons.
[142] First, the
medical evidence does not support the proposition that Ms. Kilian will
require almost twice as many sick days in the future than she has used in the
most recent school year to date which also happens to have been the year of the
worst exacerbations. The medical evidence suggests an improvement over the
years of the chronic neck pain. Ms. Kilians family physician has
documented a trend of gradual improvement. Dr. le Nobel, in
cross-examination, stated that Ms. Kilian is likely to experience further
improvement in the future so long as she adheres to an exercise rehabilitation
program.
[143] Second, Ms. Kilian
used remarkably few sick days to deal with her accident- related injuries
between 2009 and the first few months of 2011. Between those times, Ms. Kilian
experienced very few exacerbations of her neck symptoms. The 2011-2012 school
year was the exception. The evidence established several causes for this
anomaly.
[144] As noted
earlier, shortly before the 2011-2012 school year began, Ms. Kilian
participated in bobsledding and zip lining. I do not suggest that she should be
penalized for having done so. However, until then, Ms. Kilian had not
engaged in any strenuous sports or other demanding physical activities for more
than three years. Both the bobsledding and zip lining would test the
musculoskeletal stability and fitness of any person, much less someone who was
deconditioned by her relative inactivity, and who also suffered from a chronic
soft-tissue injury to the neck.
[145] Secondly, Ms. Kilian
suffered a succession of upper respiratory infections in the fall and winter of
2011-2012 which prevented her from participating in yoga and other conditioning
activities. I accept that exacerbations resulting from such illnesses in the
future will likely occur. However, I do not accept that the events of the past
year establish a worsening or deteriorating condition. The weight of the
medical evidence is that Ms. Kilian will likely cope well most of the time
but suffer occasional setbacks such as those occurring as a result of severe
colds in the past year.
[146] Thirdly, Ms. Kilians
intimate relationship came to an abrupt and unexpected end in the spring of
2012. Ms. Kilian testified that she had anticipated marriage and a family
with Mr. Jones, and that the emotional shock of his unilateral decision to
terminate the relationship was devastating to her. The termination of the relationship
contributed to the exacerbation of her chronic neck pain.
[147] While it
is not surprising that Ms. Kilian experienced exacerbations of her neck
pain during this period of time, one cannot reasonably conclude that such
exacerbations will intensify and require constantly increasing usage of sick
time. To the contrary, until the 2011-2012 school year, it appeared that Ms. Kilian
was gradually on course to minimize exacerbations of her neck pain.
[148] In my
view, a fair approach involves an averaging of the days Ms. Kilian has
missed from her teaching position over the past four years as a result of her
injuries. She missed 29.6 days for reasons relating to the injuries she
suffered in the accident, or 7.4 days per year on average. The cost to the
school district (and to the teacher, in order to replenish her sick bank) to
fund a replacement teacher is $307 per day, or $2,271.80 per year. Assuming
that Ms. Kilian will work until she is 62 years of age, and taking into
account any contingencies, the present value is approximately $30,000.
Accordingly, I award Ms. Kilian $30,000 for the cost of future access to
her sick bank.
Loss of opportunity to obtain the Masters Degree
[149] As noted
earlier, Ms. Kilian successfully completed the program leading to her
graduate diploma from SFU after participating in the program between May 2008
and May 2010. Obtaining the diploma increased her pay scale as a teacher from a
Scale 5 to a Scale 5 Plus.
[150] Obtaining
the diploma enables Ms. Kilian to apply for entry to a one-year Masters
program, but she must succeed in entering the program by 2013. If she completes
that program, her pay scale will increase to a Scale 6. Further, completion of
the program would make her much more competitive for a position in teaching
administration should she decide at some point in the future that she wishes to
leave classroom teaching for an administrative position.
[151] Ms. Kilian
wished to enter the Masters program for the 2012-2013 school year. She
prepared her application in January 2012. The application required the
preparation of two written papers. Ms. Kilian testified that she wrote the
second of the two papers during one of the exacerbations of her neck pain. Her
application for the program was apparently rejected in large part because of
the inadequacies in that paper.
[152] Ms. Kilian
has now re-applied to enter the Masters program. It was not known at the time
of trial whether she was successful in obtaining entry into the program.
[153] Ms. Kilian
argued, firstly, that the injuries she suffered in the accident may have
affected her chances of gaining entry to the Masters program and, if she does
succeed in entering the program, from successfully completing it.
[154] She
argued, secondly, that her exacerbations may prevent her from pursuing a career
in teaching administration given the long working hours and the intensive
periods of working at a computer that are expected of administrators. Both of
these possible outcomes, should they occur, will significantly and adversely
affect her future earning capacity.
[155] In monetary
terms, should Ms. Kilian fail to obtain her Masters degree as a result of
her injury, she will incur a loss each year representing the difference between
income at Scale 5 Plus and 6.
[156] Ms. Kilian
is currently at Step 3.6 on the school districts salary grid. It is expected
that she will advance one step each year until reaching the highest step, which
is Step 10, in 2018. Should Ms. Kilian achieve Scale 6, her annual salary
increase when she reaches Step 10 would be in the amount of $1,618. Before Step
10, the incremental annual increase starts at $1,100 per year at Step 3 and
increases yearly until Step 10.
[157] On
average, a teacher works until age 62. Ms. Kilian testified that she
intended to work until that age. She led expert actuarial evidence, based on
both risk and choice contingencies, assuming that she would work until age
62 and would complete her Masters degree by 2014 but for her symptoms. At pay
grade Scale 6, the cumulative present value of her salary to age 62 is
$1,253,715. At pay grade Scale 5 Plus, the cumulative present value is
$1,139,605. Assuming that Ms. Kilian never attains her Masters degree,
the difference in present value terms is $114,110.
[158] The
actuarial evidence led at trial by the defendants, which I accept, established that
the present value of $1,000 in annual earnings to the age of 62 would be
$21,095.
[159] Ms. Kilian
also argued that in the event she is not able to attain the Masters degree,
she will not have the necessary qualifications to eventually apply for an
administrative position. If she attained her Masters degree and, in five
years time successfully applied for a position as an elementary school
principal, the present value of her future income loss would be two to three
times higher than the loss she would incur as a teacher.
[160] Moreover,
said Ms. Kilian, even if she eventually attains her Masters degree, she
may be incapable of performing the spectrum of duties of an administrator as a
result of exacerbations of her neck pain.
[161] The defendants
argued that no damages should be awarded for the claim relating to the loss of
opportunity to obtain the Masters degree. First, said the defendants, Ms. Kilian
has not established that exacerbation of her neck pain will prevent her from
obtaining her Masters degree.
[162] Secondly,
said the defendants, there is no evidence establishing that Ms. Kilian may
succeed in obtaining an administrative position in the school district. The
only evidence led by Ms. Kilian demonstrates that administrative positions
are highly competitive and that a teacher must work as a classroom teacher for
many, many years before even being considered competitive for such a position. Ms. Kilians
chances of ever obtaining an administrative position are remote. Even more
remote, said the defendants, is the proposition that Ms. Kilians accident-related
injury may adversely affect her chances of obtaining an administrative
position.
[163] The defendants
argued in the alternative that an award of one years salary at $60,000 would
amply compensate Ms. Kilian for any future loss of income earning capacity
and would in fact likely exceed any such loss she will experience.
Discussion
[164] I accept
that Ms. Kilians accident-related injuries may affect her future income
earning capacity as a teacher as a result of the occasional exacerbations of
her neck pain. However, I do not accept that her income earning capacity will
be affected to the extent she has argued.
[165] First, I
do not accept Dr. le Nobels opinion that Ms. Kilians symptoms may
worsen, rather than improve, in the future. That opinion is based entirely on Ms. Kilians
account of the exacerbation in her neck pain in February 2011. It must be
viewed together with Dr. le Nobels observation in his report dated April
20, 2011 that Ms. Kilian was, at that time, teaching six blocks of
physical education class. She was able to fully participate in the class,
including demonstrating the spectrum of activities to the class. He observed
that in February 2011, when she reported an exacerbation, she was able to teach
all six blocks of physical education but did not participate to the same
level.
[166] Further, Dr. le
Nobel expressed the opinion that Ms. Kilians condition may well improve
in the future with an active physical rehabilitation program. She may not reach
all of her pre-accident capabilities, he said, but did not specify which
capabilities she may not achieve nor did he suggest that she will be unable to
perform all normal activities of daily living or all of her job functions.
[167] Second,
the evidence of Ms. Kilians functioning post-accident does not, in
general terms, support the argument that the accident will prevent her from
completing the Masters program. Only three months post accident, Ms. Kilian
entered the graduate diploma program in addition to working in a .8 FTE
teaching position. She participated in the program for the next two years. She
not only completed the program, but completed it with excellent results. However,
she was working four days per week and did not make herself available for TOC
assignments on the fifth day, using that extra time to recuperate.
[168] From late
2009 to late 2011, Ms. Kilian had two years during which she suffered some
low-grade symptoms but very few exacerbations or intensification of her neck
pain. I have earlier described the events leading to the exacerbations between
August 2011 and June 2012.
[169] While I
accept there is a substantial likelihood that Ms. Kilians neck symptoms may
delay her ability to achieve her Masters degree, I do not accept that those
symptoms will impair her ability to obtain an administrative position.
[170] First, Ms. Kilian
only recently began to consider the possibility of applying at some point in
the future for such a position. Her focus has always been classroom teaching. It
was not clear from the evidence whether she will opt to leave the classroom in
the future.
[171] Second, Ms. Gibbs,
who has encouraged Ms. Kilian to consider administration at some point in
the future, taught in the classroom for 25 years before she succeeded in
obtaining an administrative position. Competition for such positions is fierce.
Ms. Kilian has completed only two years as a continuing teacher in the
school district. Although she has Ms. Gibbs confidence, the evidence does
not establish that such a career track is anything but a remote possibility. Even
on Ms. Gibbs evidence, it appears the chances of obtaining an
administrative position are slight.
[172] Third,
and perhaps most importantly, the physical requirements of an administrative
position do not differ significantly from those of the job Ms. Kilian
currently performs. Nothing in the medical evidence led at trial established
that Ms. Kilians neck symptoms are any more likely to impair her ability
to function as an administrator than they are to impair her ability to function
as a Resource teacher.
[173] However, I
conclude there is a substantial likelihood that Ms. Kilians mild chronic
neck pain, and the occasional exacerbations of that neck pain, may interfere
with her ability to achieve her Masters degree, but only in the immediate three
to four years. If she does not succeed in gaining entry to the Masters program
by 2013, she will be required to start at the beginning of a three-year program.
If she does gain entry, she may encounter difficulties from time to time. However,
given Ms. Kilians past performance in the diploma program while teaching
almost full-time, I conclude that she will most likely be capable of completing
the Masters program once she is admitted.
[174] On the
basis of the medical evidence concerning future exacerbations to Ms. Kilians
neck symptoms, I conclude that an award of damages for loss of future income earning
capacity should reflect a delay in achieving Scale 6 on the salary grid.
[175] As
observed by the Court in Marois v. Pelech, 2009 BCCA 286 [Marois],
citing a series of earlier decisions of the Court, the fundamental principle
concerning the assessment of the loss of future earning capacity is that a
plaintiff is entitled to be put in the position he or she would have occupied
but for the accident so far as money can achieve that end. Projections from
past earnings may be a useful factor to consider in valuing the loss in
appropriate cases, but they are not the only factor.
[176] The task
of the trial judge, said the Court in Marois, is to assess damages for the
loss of impairment of future income earning capacity, not to calculate the loss
of projected earnings according to some mathematical formula. Once the nature
and extent of the impairment is established, it must be valued. The valuation
may involve a comparison of the likely future of the plaintiff but for the
accident with his or her likely future following the accident. The Court may
determine the present value of the difference between the two, but that is not
the end of the inquiry; it is the starting point only.
[177] I have
reviewed the case law cited by Ms. Kilian in support of her submission
that the award under this head of damage ought to be in the range of $250,000 (Watt
v. Meier, 2006 BCSC 1341; Pham-Fraser). Both of those decisions
involved teachers who suffered accident-related injuries and a consequent loss
of future income earning capacity. In my respectful view, the severity of the
injuries and general circumstances of the plaintiffs in each of those cases
differed significantly from those in the present case.
[178] In the
result, taking into account all of the evidence, it is the overall fairness and
reasonableness of the award that must be considered. The Court in Marois summarized
the approach this way at para. 35, quoting Rosvold v. Dunlop, 2001
BCCA 1: The assessment of damages is a matter of judgment, not calculation.
[179] It is
difficult to say with any degree of precision the amount of time it may take Ms. Kilian
to complete her Masters degree, but that difficulty cannot preclude an
assessment of the damages. In reaching a decision concerning this head of
damage, I have considered the evidence concerning the difference between the cumulative
present values of pay Scales 5 Plus and 6.. As noted earlier, the actuarial
evidence established that if Ms. Kilian never achieved her Masters
degree, the present value of the resulting loss to her (based on the difference
in pay between the respective salary grids), would be $114,100.
[180] The
evidence does not support the argument that Ms. Kilian will never achieve
her Masters degree, thus it does not support an award of damages of that
magnitude. I conclude that an appropriate award reflecting a delay in achieving
the Masters degree is $40,000.
[181] In total, taking
into account the award of $30,000 to replace future sick bank use, Ms. Kilian
is entitled to an award of $70,000 under this head of damage.
6.
Cost of Future Care
[182] In the
recent decision of Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351, the Court of Appeal, citing Gregory v. Insurance Corporation
of British Columbia, 2011 BCCA 144, observed that while it is not necessary
that a physician testify to the medical necessity of each and every item of
care claimed by a plaintiff when advancing a future cost of care claim, there
must be some evidentiary link drawn between the physicians assessment of pain,
disability and recommended treatment, and the care recommended by a qualified
health care professional. Ms. Kilians claim for future cost of care was
based primarily on a report titled a Cost of Future Care Analysis prepared
by Ms. Morin. The Analysis references the Physical Capacity
Evaluation she conducted on Ms. Kilian in September 2011. On the basis of
the PCE, Ms. Morin made a spectrum of recommendations, including ongoing
attendance for massage therapy, sessions with a psychologist to address the
management of her episodic but chronic pain, a workplace assessment, a
supervised exercise program, assistance with housekeeping and yard maintenance,
assistance with moving should she decide to sell her condominium and move to
another home, a range of home fitness equipment to allow her to work out at
home, and medication for future pain relief.
[183] Dr. le
Nobel testified that he concurred with Ms. Morins recommendations for
future care. His concurrence is based, in large part, on Ms. Kilians
report of ongoing episodic neck pain and the likelihood that she will continue
to have such episodes from time to time in the future. Dr. le Noble did
not address the items of care specifically.
[184] I accept
that Ms. Kilian is entitled to an award of damages which reflects the
present value of costs she will likely incur to address her ongoing need to
participate in an active rehabilitation program and other measures designed to
maintain her conditioning and thereby minimize the exacerbations of her neck
pain. For example, she currently receives massage therapy regularly, which both
prevents her neck pain and provides relief during exacerbations. She also
participates in a fitness program with a kinesiologist.
[185] Accordingly,
I accept those recommendations of Ms. Morin which are designed to address
the occasional exacerbations of Ms. Morins neck symptoms. I will deal
specifically with the cost of those recommendations in due course.
[186] I will first
deal with the recommendations I do not accept.
[187] In my
respectful view, there is no evidentiary basis for an award of damages for loss
of housekeeping capacity or assistance in homemaking and yard maintenance. The
only evidence advanced in support of this aspect of Ms. Kilians claim is
the comment of Dr. le Nobel in his report dated March 14, 2012, that [Ms. Kilian]
reports the need for increased assistance at home with episodic neck and upper
body pain from time to time. He did not specify the nature of the tasks she
could not perform or the extent of the assistance she may require.
[188] For the
reasons stated earlier, I do not accept Ms. Morins opinion concerning the
extent of Ms. Kilians physical limitations described in the PCE. The physical
stamina testing exceeded to a significant extent the usual physical demands of Ms. Kilians
day-to-day life both at home and at work. Further, Ms. Kilians own
evidence concerning her actual day-to-day functioning does not support all of Ms. Morins
conclusions.
[189] Ms. Kilian
lived on her own for approximately two years following the accident. She did
not seek any housekeeping assistance during that time, nor has she sought it at
any time in the past four years. She did not suggest that she lacked the
financial resources to hire a house cleaner for a few hours each week. Before
cohabiting with Mr. Jones, she performed all housekeeping duties on her
own, although she was not (in her words) the neat freak she had been prior to
the accident. Ms. Kilian testified that even during her relationship with Mr. Jones,
she performed the majority of the housework.
[190] In light
of the evidence concerning Ms. Kilians past and current functioning in
the home, I have concluded there is no evidentiary basis for an award of
damages for future care in areas such as homemaking, child care or yard
maintenance, nor is there a basis for an award for diminished housekeeping
capacity.
[191] Ms. Kilian
made a claim for moving expenses which I conclude is too speculative. Ms. Kilian
is not intending to move at present. Further, she will incur moving costs in
any event should she decide to move at some point in the future.
[192] As I have
already noted, Ms. Kilian has performed well in her teaching job. In the
year following the accident, she did not make herself available for TOC
assignments, and spent less time at work before and after class. She was also
careful in the first year when teaching her physical education classes. She has
otherwise coped well with her teaching load, earning excellent teaching
evaluations. Ms. Kilian also completed the graduate diploma while working
a .8 FTE teaching job.
[193] For the
most part, Ms. Kilian manages her neck symptoms with stretching, yoga, and
massage therapy. Those symptoms become acute only during the occasional
exacerbations. I conclude that an award of damages for cost of future care
should be based on what is reasonably necessary to assist Ms. Kilian to
maintain her general fitness and conditioning and to alleviate her symptoms
when they become acute during exacerbations.
[194] The defendants
acknowledged that an award representing the present cost of some aspects of future
care is appropriate based on Ms. Kilians current condition and the chances
of sporadic exacerbations of her condition in the future.
[195] The
present cost of the recommendations of Ms. Morin were calculated in the
actuarial report of Christiane Clark (Associated Economic Consultants Inc.). On
the basis of Ms. Clarks report, the recommendations of Ms. Morin and
the opinion of Dr. le Noble, I conclude that Ms. Kilian is entitled
to the following amounts:
(a)
a work site assessment to determine whether there are measures available
to assist Ms. Kilian during exacerbations of her neck pain: $600;
(b)
multi-adjustable chair with armrests/neck support: $1,670;
(c)
Physiotherapy services (4 hours to design an active rehabilitation
program): $720;
(d)
Home exercise equipment to assist with an active rehabilitation program
(exercise mat; basic weight set; recumbent stationary bike; exercise ball); and
ancillary equipment and aids such as cold packs, heating pad, cervical pillow, and
TENS machine (present value): $4,775;
(e)
The assistance of a psychologist who specializes in pain management (15
sessions): $2,580;
(f)
Occupational therapy (one year): $1,015;
(g)
Massage therapy (initial two years); $2,600;
(h)
Massage therapy (subsequent years) (present value): $6,000;
(i)
Non-prescription medications (present value): $3,200;
(j)
Prescription medication (Dilaudid) (present value): $3,575.
[196] Ms. Kilian
is currently participating in a funded kinesiology program. There was no
evidence to suggest that such a program should continue indefinitely. Accordingly
no award has been made for the cost of that program.
[197] The total
award for future cost of care is $26,735.
7.
Special Damages
[198] The
parties have agreed that the total of Ms. Kilians current out-of-pocket
expenses for treatment, medication, supplies and parking for various
appointments is $5,300. In addition, I accept Ms. Kilians mileage expense
calculation of $872 (based on a total travel distance of 1,744 at $0.50 per
kilometer). Accordingly, the total award for special damages is $6,172.
8.
General
Deductibility of Collateral Benefits
[199] I accept
that the disability benefits accruing to Ms. Kilian pursuant to the
collective agreement between her union and her employer are not subject to
deduction: Cunningham v. Wheeler, [1994] 1 S.C.R. 359; Kask v. Tam (1996),
21 B.C.L.R. (3d) 11 (C.A.). The evidence (including agreement between counsel,
pay stubs, Blue Cross documents, the collective agreement) provides ample proof
that the benefits form part of Ms. Kilians overall compensation package.
Mitigation
[200] The defendants
took the position at the outset of the trial that Ms. Kilian failed to
fully mitigate her loss because she did not engage in an active rehabilitation
program in 2010 when it was recommended by Dr. le Noble. That position was
not vigorously pursued during the trial, nor was it pursued in final argument.
In any event, I do not accept that Ms. Kilian failed to fully mitigate her
loss. It was not until April 2011 that Dr. le Noble mentioned the benefit
of an exercise-based rehabilitation program to help Ms. Kilian return to
activities such as golf and kayaking (as distinct from her general functioning).
The defendants provided no medical or other evidence to support the argument
that earlier attendance at the kinesiology appointments would have lessened the
exacerbations in her neck pain which she experienced in 2011-2012.
V.
SUMMARY OF DAMAGES AWARDS
[201] In
summary, Ms. Kilian is entitled to the following damages awards:
| (a) | Non-pecuniary damages: | $75,000 |
| (b) | Past wage loss: | $15,682 |
| (c) | Loss of future income earning capacity: | $70,000 |
| (d) | Cost of future care: | $26,735 |
| (e) | Special damages: | $6,172 |
| TOTAL: | $193,589 | |
[202] I will
leave to counsel for the parties all precise calculations on these amounts,
including HST where appropriate, and income tax and other deductions where
appropriate.
[203] Subject to
further submissions by the parties, Ms. Kilian is entitled to her taxable
costs and court ordered interest.
The
Honourable Madam Justice C.A. Wedge