IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130125

Docket: 47361

Registry:
Vernon

Between:

Lynn Durkee

Plaintiff

And

Curtis Sherwood
and Aubrey Lauren Kennedy

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Betton

Reasons for Judgment

Introduction

[1]            
The plaintiff seeks recovery of damages for injuries suffered in a motor
vehicle collision that occurred on February 11, 2010.

[2]            
The defendants did not participate in the trial, and the third party,
the Insurance Corporation of British Columbia, did not challenge the assertion
that the defendant’s negligence caused the motor vehicle collision.

[3]            
The plaintiff had been injured in a motor vehicle collision in 2004 that
left her with a level of permanent disability. The focus of this trial has been
identifying the added effect of the injuries from the collision of February 11,
2010.

Background

[4]            
The plaintiff is a 50-year-old divorced mother of three.

[5]            
As a youth the plaintiff was an accomplished basketball player,
receiving scholarships after high school in both Canada and the USA.
Immediately after high school she played in the USA, before returning to Canada
and attending and playing at Dalhousie University.

[6]            
The plaintiff’s educational objective had been to obtain a teaching
degree, but she did not fulfill that objective.

[7]            
She left university and returned to British Columbia to work, and met
her former husband. They were married for 12 years before separating in 2000.
Her husband was a logger and she was principally a stay-at-home mother. During
the marriage she did some bookkeeping for the logging business.

[8]            
The plaintiff’s three children are all in their twenties and successful.
The plaintiff had custody of the children after her marriage ended. All of the
children played basketball and she was involved in coaching each of them, but
her coaching went well beyond that. She coached high school basketball until
2012. In fact, she was returning from coaching a basketball game when this
collision occurred.

[9]            
After separating from her husband, the plaintiff developed a successful
residential painting business.

[10]        
In 2004, the plaintiff was injured in a motor vehicle collision. The
injuries were to her neck and back. She underwent a surgical decompression at
the L5-S1 nerve root in December 2006. The injuries did not fully resolve.

[11]        
When she reached the point of maximal recovery after the 2004 collision,
the permanent effects of her injuries limited her recreational activities and
her vocational options.

[12]        
As a result of an assessment of her vocational abilities, she trained to
become a hospital unit clerk. She graduated with honours from that program
after 12 months. Usually 18 months is taken to complete the program. Following
graduation, she did a practicum at the Royal Inland Hospital in Kamloops,
British Columbia and thereafter began her new career.

[13]        
Initially she was a casual employee at both the Royal Inland Hospital
and the Salmon Arm Hospital, beginning in late 2007 or early 2008. Her casual
status meant that she was on call with no guaranteed schedule. Each hospital
and each unit within the hospital requires specific training and/or orientation
for its unit clerks. The plaintiff recognized that being trained
or oriented in more units increased the availability of on-call work. She took
all the training that she could.

[14]        
Up to the time of the 2010 collision the plaintiff remained a casual
employee, and was working approximately 25 hours per week. (This is reviewed in
some detail below.) It was her view that the job was a good fit for her
interests and physical capability, and she enjoyed the work.

[15]        
Following the 2010 collision, the plaintiff was off work for
approximately three weeks before she began a graduated return to work.

[16]        
In April 2010, the plaintiff applied for a full-time relief position at
the Royal Inland Hospital. The position was in fact offered to her, but she
decided not to accept it.

[17]        
In August 2010, she applied for a permanent .81 full‑time
equivalent (“FTE”) position at the Royal Inland Hospital, and was again the
successful applicant. She accepted that position and continued to work in that
position to the date of trial.

[18]        
Following the 2004 collision she was assessed by various experts,
including a physical and rehabilitation specialist, Dr. Travlos.

[19]        
The plaintiff resides in a house on a small lot in Salmon Arm, and has
done so since before the 2004 collision.

[20]        
The commute by personal car to the Royal Inland Hospital in Kamloops is
approximately one hour.

[21]        
The 2010 collision occurred at approximately 7 p.m., when the
defendant’s vehicle failed to yield as it entered the plaintiff’s path from a
side street. It was a significant impact.

[22]        
The plaintiff was taken to the Vernon hospital and released in the early
morning hours of the following day.

[23]        
The collision was a traumatic event for the plaintiff.

[24]        
At the time of the 2010 collision, the plaintiff’s two daughters were
living at home.

[25]        
The principal areas of physical injury in the 2010 collision were to the
plaintiff’s neck, back and shoulder. They were soft-tissue injuries.

[26]        
In addition, the plaintiff had a post-traumatic stress reaction that
resulted in driving anxiety.

[27]        
The plaintiff has undergone various assessments and treatment for the
2010 injuries. That treatment has included physiotherapy, massage,
psychological counselling, a physical program, medications and facet joint
blocks/injections at three levels between the second and fifth cervical
vertebrae.

Medical Opinions

[28]        
Dr. Travlos is a specialist in physical medicine and
rehabilitation. He assessed the plaintiff following the 2004 collision and
again following the 2010 collision. In his report of April 4, 2011, he says the
following at page 6:

It is my opinion that the
accident of February 11, 2010, aggravated Ms. Durkee’s pre-accident
symptoms in the neck and the back and also brought on some new left shoulder,
right shoulder, and left wrist pains.

And, the following at pages 8 and 9:

Ms. Durkee is just a year following a more recent motor
vehicle accident in the background of six years of chronic, ongoing pain in the
neck and the back as a result of a 2004 accident. Although the former symptoms
had eased off, she was still symptomatic. This current accident has simply
aggravated those previous problems and set a higher level of pain with more
frequent symptoms than before. It is my expectation that over the course of
another one to two years that Ms. Durkee’s symptoms will reduce. It is
possible that they will go back to the same level that they were at prior to
this accident, but in my experience, patient’s symptoms tend to return to a
level slightly greater than that which they were at previously.

Ms. Durkee was restricted from participating in
recreational activities and in performing heavier tasks around the home prior
to the accident. Her current level of symptoms are greater than they were
before and her restrictions around the home are likely to be greater than they
were before it occurred. The pre-2010 accident recreational restrictions were
fairly significant and have not really changed that much since the accident. It
is my expectation that she should be able to become more active, but will be
left with restrictions at home and recreationally, but these restrictions
should closely approximate the restrictions she had prior to the 2010 accident.

…

…She is now working 0.8 FTE plus
working causal occasionally. Should full-time work be available, she should be
able to work at it. It is probable that had the 2010 accident not occurred, Ms. Durkee
would have begun full-time work when offered the work in the spring of 2010.
Her reduced work hours to date, therefore, are a result of the accident.

[29]        
Dr. Etheridge is a general physician with specialized training in
chronic pain management and interventional pain management. His report is dated
June 22, 2012 and includes the following comments:

–           Ms. Durkee’s symptoms and complaints are in
keeping with chronic whiplash neck pain and back pain as it relates to both the
2004 and 2010 MVAs;

–           Ms. Durkee’s neck pain will probably not
resolve. … She responded well to facet joint nerve blocks and these may be
repeated for medium term relief;

–           The myofascial neck pain was probably present
before the February 11, 2010 collision, but an aggravation of this condition is
probably contributing to her increased right neck pain;

–           The myofascial pain in the T8/9 level resolved
for a year due to physiotherapy treatment, continuity of symptoms were not
maintained, making causation difficult to prove;

–           The myofascial pain in the left gluteal muscles
would be hard to explain as it relates to the mechanism of injury and is
probably related to her chronic lower back pain;

–           Ms. Durkee acknowledges that her headaches
and lower back pain has returned to the pre-accident state and that she only suffered
a short term exacerbation in symptoms related to these sites;

–           She is able to
continue her 0.81 of full time as a unit clerk, working 4‑5 days on and 4‑5
days off. Ms. Durkee would probably not be able to perform these duties
full time, due to probable aggravation of her pain.

[30]        
He notes that Ms. Durkee has reached maximal medical improvement,
and her condition should be regarded as permanent.

[31]        
Dr. Keith Christian, an orthopedic surgeon, the third party’s
expert, noted the following in his report of May 17, 2012:

–           In my examination of this case including the
medical documentation, it would appear that this lady has had significant
problems with her neck and back in the past and it would be more likely that
her complaints post-accident represented an exacerbation of symptoms from a
pre-existing condition. Her present symptoms are more likely related to the
pre-existing condition and not to any effect of the motor vehicle accident of
February 11, 2010;

–           With respect to any current vocational disability
Ms. Durkee may have and whether any change is expected in the condition in
the future, I would say that this lady would not likely be negatively affected
by the motor vehicle accident of February 11, 2010 in terms of being able to
return to her vocational situation at this time;

–           There is no evidence
in my opinion that this lady sustained any structural change in her spinal
tissues that would account for any permanent increase in symptoms following her
motor vehicle collision.

[32]        
There are also reports of Dr. Bratty, the plaintiff’s general
physician, and, occupational therapist, Debbie Ruggiero, in evidence.

[33]        
Dr. Patricia Neilson, a psychologist, provided an opinion dated
June 9, 2012, which included the following:

–           Based on my
observations and discussions during therapy sessions, I am of the opinion that Ms. Durkee
was significantly impacted by the motor vehicle accident of February 11, 2010.
She experienced an initial post-traumatic stress reaction, with persistent
driving-related anxiety. She also experienced pain and physical limitations,
which impacted her mood and ability to enjoy many aspects of her life,
including work.

Positions of the Parties

[34]        
The essential positions of the parties can be summarized briefly.

[35]        
The plaintiff acknowledges that she was restricted by the permanent
effects of the 2004 collision, but argues that her injuries from that collision
made her vulnerable to further injury. She says that the effect of the 2010
collision was to capitalize on that vulnerability, and significantly further
restrict her abilities and limit her capacity to work.

[36]        
The third party says that the 2010 collision caused temporary
exacerbation of symptoms of the plaintiff’s 2004 injuries. The third party says
that the plaintiff has returned to her pre-2010 collision level of function and
there are little, if any, ongoing effects from the 2010 collision.

Analysis

[37]        
The Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R.
458 said at paragraph 32:

…the essential purpose and most basic principle of tort law
is that the plaintiff must be placed in the position he or she would have been
in absent the defendant’s negligence (the "original position").
However, the plaintiff is not to be placed in a position better than his
or her original one. It is therefore necessary not only to determine the
plaintiff’s position after the tort but also to assess what the "original
position" would have been. It is the difference between these positions,
the "original position" and the "injured position", which
is the plaintiff’s loss.

(emphasis
in original)

Further, at paragraph 35:

…The defendant is liable for the
injuries caused, even if they are extreme, but need not compensate the
plaintiff for any debilitating effects of the pre-existing condition which the
plaintiff would have experienced anyway.

[38]        
The plaintiff has demonstrated that prior to the 2004 collision she was
a motivated, hardworking, and physically capable individual. Her
accomplishments as a basketball player and then as a coach, her successes as a
parent both before and after the separation from her husband, and her ability
to build a successful painting business, all support this conclusion.

[39]        
There is no question but that the injuries from the 2004 collision had a
negative impact on her physical capacities. She remained motivated and
hardworking, but she was clearly less physically capable, and she was limited
to a significant degree. This affected her work and recreation options.

[40]        
When the 2010 collision occurred, the plaintiff had just reached the
stage of recovery where the picture of her long-term functional status, her
“original position”, was becoming clear. In the absence of actually having that
clarity regarding her original position, there is greater challenge in
assessing the “injured position” and thus the change brought about by the 2010
collision.

[41]        
 The injuries from the 2004 collision prevented her from continuing her
painting business. With the assistance of a vocational assessment, a new career
as a hospital unit clerk was identified. She committed herself to pursuing that
career and had achieved some early success, but important questions arise in
the circumstances. They include: Would she have worked full time? What level of
earnings would she have achieved but for the 2010 collision?

[42]        
The plaintiff had to limit her recreation to a significant degree after
2004, and was just finding her capacities and limitations after the lengthy
recovery.

[43]        
There were some psychological complaints following the 2004 collision,
but they resolved.

[44]        
The evidence in this trial regarding her status prior to the 2010
collision, and the changes resulting from it, comes from several sources.

[45]        
Dr. Travlos did thorough assessments of the plaintiff in February
and May of 2008. For that reason, his assessment following the 2010 collision
is of particular importance. The tenor of his report is reflected in the
quotations above. That report was based on a review of records, his own
examinations, and the report of the plaintiff. I am cognizant of the fact that
it was prepared more than a year prior to the trial.

[46]        
In addition, I must consider the evidence of the plaintiff. She
described her recovery following the 2004 collision, and it was clearly a slow
one.

[47]        
In the six months preceding the 2010 collision, she testified that she
felt she had a sense of how her life would be. She indicated that her low back
was sore three to four days per week, and activity aggravated the pain. While
there was ongoing neck pain, it was the low back pain which was the more
significant problem. She was walking approximately three times per week, and
was experimenting with her tolerance or capacity for additional activities. As
an example, she had found that snowshoeing was too much for her. She was doing
most of her household maintenance and yard care, but pacing herself. Driving
for extended periods aggravated her neck pain.

[48]        
There were times when she had to reject available work because of her
symptoms/pain before the 2010 collision.

[49]        
She had returned to coaching, but did restrict some of her involvement
in drills and activities during practices.

[50]        
After the 2010 collision she applied for, and was offered, a position on
a temporary basis that was as a full‑time unit clerk. She turned the
position down, because she did not think that the work schedule and the demands
of the full-time work were within her abilities at that time. Ultimately, in
August 2012 she was successful in obtaining the .81 FTE position. She says that
but for her increased symptoms she would be working full time, and perhaps
taking additional shifts beyond that. She says that she does not pursue
additional shifts, even in her .81 FTE position, because of ongoing symptoms.
She says that prior to the 2010 collision, it had been her ultimate objective
to obtain a full-time position.

[51]        
For the first time in 23 years she is now not coaching basketball at
all.

[52]        
As a result of the 2010 collision she has had anxiety driving, and has
received counselling through Dr. Patricia Neilson. That has been largely
successful, although she still finds the experience of driving to be more
stressful.

[53]        
Other evidence regarding the long-term impact of the 2010 collision
comes from the plaintiff’s sister, Nona Jolly. It was her observation that the
plaintiff, in the months leading up to the 2010 collision, was in a “good
place” and things were generally going well. She noted that the plaintiff was
quite independent, but did have some restrictions regarding heavier activities
or those that were more taxing on her back or neck.

[54]        
It is her observation that the plaintiff is generally less physically
capable, and is less emotionally positive, after the 2010 collision.

[55]        
In a similar vein is the evidence of Lindsay Rabbitt, the plaintiff’s
daughter. She noted that the impact of the increased pain was having a
significant negative impact on the otherwise upbeat personality of the
plaintiff.

[56]        
The plaintiff also relies on the evidence of Barb Waring, who has been a
coach or assistant coach with the plaintiff for some 13 years. She noted that
the 2010 collision further restricted the plaintiff’s ability to participate in
the physical aspects of coaching.

[57]        
On the whole, the evidence satisfies me that the 2010 collision has in
fact caused a general decline in the plaintiff’s level of function. She
experiences some greater level of pain more regularly, and it is more easily
triggered. The changes are in respect of her neck, shoulder and upper back in
particular. It is my conclusion that her low back pain has, as was noted by Dr. Etheridge
and referenced above, essentially returned to the pre-2010 status.

[58]        
In addition there has been some emotional consequence, both in the
context of driving specifically and in the plaintiff’s understandable level of
frustration with having had this set back. This has not affected her work
specifically, but generally has negatively affected her mood. In addition, it
has made driving a somewhat stressful endeavour.

[59]        
I now turn to the individual heads of damage, to articulate how these
findings with respect to the “original position” and the “injured position”
should be applied to the respective categories of damage.

General Damages

Positions of the Parties

[60]        
The plaintiff references the decision in Stapley v. Hejslet, 2005
BCCA 34 for general principles, and several other cases for comparative
purposes. Her counsel argues that an award of $80,000 is appropriate. The
plaintiff says that the permanent effect of the 2010 collision has been to
significantly increase her symptoms in her neck and back, and that the
psychological impact, although somewhat resolved, remains a factor.

[61]        
The third party says that the plaintiff had significant limitations
following the 2004 collision, resulting in chronic ongoing symptoms in her neck
and back. It says that the plaintiff was able to retrain and was working, but
she did have to miss some available work due to pain. Further, she needed help
with some of the heavier home tasks, and she continued to receive massage and
take medications. It argues that a $30,000 award is appropriate.

Assessment

[62]        
The reality is that the plaintiff was dealing with fairly significant
restrictions prior to the 2010 collision. She was using medication on an
ongoing basis to manage her symptoms, was attending physical therapy, and was limited
in her home maintenance/care activities and with her recreational activities.
She needed help with the heavier tasks, and was unable to participate in the
more demanding recreational activities.

[63]        
Despite that she was not seeing her family physician on a regular basis,
she was enjoying her new career and intent upon trying to obtain a full-time
position. The third party did challenge whether the plaintiff was serious about
full-time work, but I am satisfied that her training and orientation at various
different units, and her efforts to obtain training with the emergency
department at Royal Inland Hospital, are all consistent with a desire for
full-time employment. This provides some perspective regarding the significance
of the ongoing symptoms.

[64]        
 As indicated above, I do accept that the 2010 collision has made her
upper back and neck symptoms generally worse. I conclude that her low back pain
is essentially the same as it was prior to the 2010 collision. It is my
assessment that these changes have not materially affected what she can or
cannot do, or more properly what she chooses to do, but on an overall basis her
pain intensity is greater and it is triggered more easily.

[65]        
She is also dealing with driving anxiety, which has made the task of
driving less “ordinary”; that is, it is a more negative experience although she
is capable of driving on a regular basis.

[66]        
In all of these circumstances I assess general damages at $50,000.

Past Wage Loss

Positions of the Parties

[67]        
Each of the plaintiff and the third party approach the question of what
the difference between what the plaintiff would have earned if the 2010
collision had not occurred and her actual earnings from the date of the
collision to the trial date differently. Both look to the plaintiff’s earnings
prior to the 2010 collision to develop their respective positions. That is,
however, the only consistency in their positions.

[68]        
The plaintiff relies on the average hours worked from August 25, 2009 to
the 2010 collision date (28.5 hours per week) to determine what she says she
would have worked to the date the full‑time position was available to her
on May 25, 2010. From that date she says she would have worked full‑time
hours (37.5 hours per week). In addition, she argues that she would have
benefited from overtime and shift differentials which, according to the report
of the economist for the plaintiff, Mr. Carson, add 14.5 percent to her earnings.

[69]        
She says that using these figures, she would have earned $118,000 from
the collision date to the trial date. Her actual earnings were $94,340.13. She
says the difference adjusted for income tax is $21,600.

[70]        
The third party says that average earnings for the entire 2009 year
should be the basis for the calculation. It says that the plaintiff’s average
earnings every two weeks in 2009 were $1,461.15. Her average hours per week
were 25.3.

[71]        
The third party says that the plaintiff has not proved the full‑time
position was available to her in May 2010, and that she has not proved a loss
of earnings from the date she accepted the .81 FTE position in August 2010.

[72]        
The third party says that the plaintiff’s work schedule was impacted for
12 weeks following the 2010 collision. It suggests that the proper approach is
to deduct actual earnings from what the projected earnings would have been,
based on the history of earnings in 2009 for that 12 week period. It says that
the appropriate award is $6,587.09.

Assessment

[73]        
Part of the analysis under this head of damage requires me to conclude
whether the plaintiff would have taken full-time work as of May 2010, but for
the 2010 collision. Although the third party says that the availability of that
full-time work has not been proved, I accept the plaintiff’s evidence on this
point. The absence of a letter confirming that the job had been offered is not
determinative. The third party stresses that no one from Interior Health was
called to confirm that the job was available. This issue was not a surprise in
this trial however, and the third party could have pursued its own evidence from
Interior Health. I accept the plaintiff’s own evidence on the issue.

[74]        
Accordingly, I conclude that the plaintiff would have worked in a
full-time position commencing May 2010. It is to be noted that that position
was a temporary relief posting, although the plaintiff says that it became a
permanent posting when the individual who vacated it ultimately did not return.
For purposes of this category of damages, I accept that it would have remained
full time at least until the date of trial.

[75]        
It is my conclusion, however, that once in a full-time position the
plaintiff would not have taken as many extra shifts. I elaborate more fully on
this in the context of dealing with the claim for loss of earnings capacity,
but this finding requires an adjustment to the 14.5 percent increase to
expected earnings that the plaintiff suggests.

[76]        
The other issue important to assessing damages in this category is
identifying what hours the plaintiff would have worked from the 2010 collision
date to May 25, 2010. Whether the whole of 2009 or only the period from August
2009 is considered, is not significant to the calculation. The plaintiff’s
approach of 28.5 hours per week using $20.77 per hour plus 14.5 percent is
$1,355 every two weeks. The third party uses $1,461.15 every two weeks. I
observe that the third party calculates that the plaintiff worked 25.3 hours
per week, which is not the mathematical equivalent of $1,461.15 at $20.77 per
hour. The premium is presumably the result of overtime and shift differential
adjustments.

[77]        
While each party has presented their position in the form of a
calculation in this case, it is my view that such precision is not possible.

[78]        
The real difference between the positions is because the plaintiff
assumes that she would work the same proportionate amount of overtime if she
had a full‑time position as she would with a casual or less than full‑time
position. I do not accept that proposition as accurate.

[79]        
I accept the third party’s calculation for the 12-week period after the
collision. In addition, some allowance is necessary to recognize a reduced
actual income from not having the full‑time position, but I do not allow
for a full 14.5 percent on top of those full‑time hours. In the result,
it is my conclusion that an appropriate award for past wage loss is $10,000. In
awarding this amount I have considered income tax, but not any deductions for
advances or disability benefits under the Insurance (Vehicle) Act or its
Regulations.

Loss of Earnings Capacity

Positions of the Parties

[80]        
The plaintiff says that she is limited to a .81 FTE, and but for the
2010 collision would have been able to work full time. She argues that her loss
of capacity is the difference between the .81 FTE and the 1.0 FTE. She further
argues that a retirement age of 67 should be applied to the calculation of the
present value of that loss, which generates a loss of capacity claim of
$120,000.

[81]        
The third party notes that Dr. Travlos was of the view that the
plaintiff can work full time now. It also notes that the plaintiff earned more
in 2011 than ever before. It notes that the plaintiff missed shifts due to pain
before the 2010 collision, and says such absences would have continued even
without the 2010 collision. Based on these facts, it says there should be no award
here.

Assessment

[82]        
As noted in my analysis of the past earnings loss claim, my conclusion
is that the plaintiff would have taken the 1.0 FTE position in May 2010. On the
evidence, I conclude that that position would have morphed from a temporary
relief position to a permanent position, whether in that precise position or in
an alternative position.

[83]        
Dr. Travlos observed that in May 2010 the plaintiff was not in a
position to work full time but, at the time of his most recent report concluded
that she could then work full time. As noted above, I am also satisfied that
the plaintiff was desirous of a full-time position, and felt she was in a
position to work full time prior to the 2010 collision.

[84]        
There is conflict between doctors Travlos and Etheridge regarding the
plaintiff’s present capacity to work full time. They are both experts relied on
by the plaintiff. Even though Dr. Etheridge gives his opinion more
recently, I prefer the opinion of Dr. Travlos. He is a specialist who saw
the plaintiff before and after the 2010 collision. His evidence is compelling,
and to the extent it contradicts that of Dr. Etheridge, I prefer the
evidence of Dr. Travlos.

[85]        
A review of the plaintiff’s hours worked in 2011 demonstrates the
capacity to work near full time. It is my conclusion the plaintiff does have
the present capacity to work full time, although once in such a position she
would not be accepting as many extra shifts and be working overtime as much as
she may have but for the 2010 collision. That is not a significant change from
what the situation would have been prior to the 2010 collision. Her present
hours worked over and above the .81 FTE take her to near full-time equivalent.

[86]        
In essence, it is my conclusion that if the plaintiff had a 1.0 FTE
position the effects of the 2004 collision would have been to limit the amount
of overtime or extra shifts she would have taken.

[87]        
In 2011 we know how many hours the plaintiff worked and her earnings,
and all of this implies that she was working very nearly full time. Exhibit 10,
page 97, indicates that between September 2010 and May 2012 her hours were
essentially a .88 full-time equivalent.

[88]        
There is also a question of when the plaintiff will retire. The experts
of the plaintiff and third party disagree on what is a reasonable expectation. Mr. Hildebrand,
on behalf of the third party, relies on the average age of retirement for
public service employees. Mr. Carson, for the plaintiff, says that the
plaintiff’s late entry to this pensionable employment, and her financial needs,
suggest a later retirement age. I agree in general with Mr. Carson. The
plaintiff says a retirement age of 67 is reasonable, and I agree.

[89]        
In my assessment, an award of $60,000 is appropriate. It should be
apparent that this is not a calculation, but rather an assessment based on the
evidence and applying the principles relating to awards of this nature.

Costs of Future Care

Positions of the Parties

[90]        
The plaintiff relies on the report of the occupational therapist, Debbie
Ruggiero, which sets out a list of recommended items and the associated costs.
The plaintiff also relies on the recommendations of Dr. Etheridge.

[91]        
The items contributing most significantly to the costs of future care
are for homemaking assistance. The report of economist Robert Carson sets out
calculations of the present value of all of these items at between $87,000 and
$92,000. (The variation is as a result of whether HST or GST/PST are used.)
There are other recommendations by Dr. Etheridge such as massage,
physiotherapy, acupuncture and injections that would add to the long-term
costs.

[92]        
The plaintiff concedes that there needs to be an adjustment, given that some
of the items listed would have been required in any event of the 2010 collision,
and says that a $60,000 award is appropriate.

[93]        
The third party says that the recommendations of the occupational
therapist are not supported by the evidence, noting specifically Dr. Travlos
did not recommend homemaking because the need for that arose prior to the 2010
collision. It does agree that some allowance should be made for increased use
of medication and some limited massage therapy. It says an award of $1,596.50
is appropriate.

Assessment

[94]        
As indicated above, it is my conclusion that the plaintiff does have
increased severity of symptoms, as a result of the 2010 collision.

[95]        
Ms. Ruggiero did not complete a functional capacity evaluation, but
rather did a cost of care report. She relied on the plaintiff’s statements to
her about the effects of the 2010 collision, as well as the April 4, 2011
medical report of Dr. Travlos, to determine what care would be required.

[96]        
It is difficult to reconcile some of Ms. Ruggiero’s recommendations
with some of the observations of Dr. Travlos set out above. Specifically,
in respect of home activities Dr. Travlos concludes in his report, “these
restrictions should closely approximate the restrictions she had prior to the
February 2010 accident”. In cross-examination he confirmed he had not made any
recommendations for household assistance to help with tasks around the home “because
she had needed that previously”.

[97]        
It is my conclusion that the changes the plaintiff will endure will
require that she adjust the pace at which she completes her household tasks,
but that the changes will not have a significant impact on the amount of
outside assistance she will require. The plaintiff’s submission implicitly
acknowledges this by adjusting the claim down substantially from the present
value calculation of the numbers actually presented.

[98]        
It is my conclusion that an appropriate award is $20,000.

[99]        
The plaintiff also argued that a separate award of $10,000 should be
made for loss of past and future housekeeping capacity. Given the nature of the
cost of care claim, and specifically the nature of the components of the claim,
this is not an appropriate case to make a separate award for housekeeping.

Special Damages

[100]     The
parties have agreed that an award of $3,500 is appropriate.

Conclusion

[101]     The
defendants are liable for the collision.

[102]     The
plaintiff is entitled to the following damages:

[103]    
I have not heard from the parties as to costs, and whether there are any
offers or other considerations in that regard. The parties are at liberty to
bring that matter to me, if necessary. Otherwise, costs should be in favour of
the plaintiff, at Scale B.

“D.A.
Betton J.”
The Honourable Mr. Justice D.A. Betton