IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130319

Docket: M105420

Registry:
Vancouver

Between:

Fiona Hickey

Plaintiff

And

Milko Aquino Pena

Defendant

Before:
The Honourable Madam Justice Ballance

Reasons for Judgment

Introduction

[1]            
On January 4, 2009, Fiona Hickey’s vehicle was struck from the rear
by an SUV driven by the defendant, Milko Pena (the “Accident”).  Liability for
the Accident has been admitted.

[2]            
In dispute is the causation of certain of Ms. Hickey’s injuries, in
particular her disc protrusion, depression and the relapse of her eating
disorder.  Also controversial are her alleged loss of work opportunity and loss
of earning capacity.

Background

·       Early
Years

[3]            
Ms. Hickey was born and raised in Ontario and was 38-years old at
the time of the Accident.

[4]            
She is an articulate and educated woman.  After graduating high school,
she studied honours English and creative writing at York University for four
years.  In 2005, she completed a post-graduate degree in journalism.  Ms. Hickey
is also hard-working and adventurous.  During high school and continuing until 2007,
she worked in various positions with the Bank of Montreal, which had been her
mother’s employer for most of her career.  She also travelled to Ireland,
Central America and other interesting destinations throughout that time period.

[5]            
For as long as Ms. Hickey can recall, her father has suffered from
severe rheumatoid arthritis, evidently triggered by an industrial accident. 
She never knew him to be healthy or free from pain.  Her father’s compromised
physical health instilled in Ms. Hickey the importance of staying
physically fit and a stoic attitude toward injury and pain.  She was an
all-round athlete throughout high school and university, participating in a
wide array of sports, including varsity badminton, soccer, volleyball,
cross-country running, boxing, tennis and rowing.

[6]            
In 2007, Ms. Hickey held the position of executive assistant to a
senior vice president at the Bank of Montreal.  The job was below her skill
level but she was hopeful that a more senior position would become available. 
As time passed, it became apparent that such an opportunity was not about to
materialize any time soon.

[7]            
Ms. Hickey had been married and by 2007 she had either finalized
her divorce or was in the throes of doing so.  That year, she began weekly counselling
sessions with Alan Cameron, an executive coach and counsellor.  She testified,
and I accept, that she sought his guidance to shepherd her through her marital
breakdown, and to improve her communication and life skills with the aim of
shaping and achieving her career goals.  He also counselled her with respect to
relationship and trust issues and matters surrounding communication with family
members.

[8]            
Ms. Hickey had developed an eating disorder when she was in her teens. 
She was embarrassed by and so intensely private about her affliction that even
her mother and close friends were unaware of it.  She suffered a brief relapse
of bulimia in 2007, and Mr. Cameron assisted with her recovery.  The
evidence establishes that her eating disorder had been stable for some time and
was not active at the time of the Accident.

·       Move
to Whistler

[9]            
Believing that a move to a smaller and more “beautiful place” would
present fresh opportunities, Ms. Hickey relocated to Whistler, British
Columbia in about September 2007.  As she had predicted, the move turned out to
be a good fit.  Ms. Hickey loved living in “such an amazing place”; where she
could walk out her front door and engage in all manner of physically demanding
recreational pursuits, such as cycling, wilderness hiking, skiing and white
water rafting.

[10]        
Soon after her arrival in Whistler, Ms. Hickey found a position
with Pique Newsmagazine, a local newspaper (“Pique News”).  She worked there two
days a week coordinating production with sales.  She also secured a part-time
job at the Whistler Real Estate Company.  A few months later on January 2008, she
accepted a full-time placement with Thornhill Real Estate (“Thornhill”) as the
marketing and listing coordinator.  Her annual salary was $52,000.

[11]        
Ms. Hickey did not foresee the global economic downturn looming on
the horizon.  In May 2008, she purchased a condominium in Pemberton for
approximately $250,000.  She was able to finance the purchase with no money
down and quickly spent between $20,000 and $25,000 on renovations.  She covered
the renovation costs by drawing approximately $15,000 against her line of
credit, and paying the balance with cash she obtained by collapsing a portion
of her RRSPs.  Ms. Hickey testified, and I accept, that she bought the
condominium because she “loved her life” in the Whistler area and intended to
stay.

[12]        
Interested in the prospect of a career in real estate, Ms. Hickey obtained
her real estate licence in the summer of 2008.  In November 2007 and again in
2008, Ms. Hickey sewed teddy bears which she sold at an annual arts and
craft show in Whistler, as well as at festivals during the summer.  Her
earnings from this endeavour were small – not exceeding $1,000 per year – and
she did not include them in her income tax returns.

[13]        
Ms. Hickey testified that in the fall of 2008 the real estate
market in Whistler suffered a severe blow in consequence of the unprecedented collapse
of the American housing bubble.  Listings were not coming into the office at
Thornhill and no product was selling.  She could sense that people in Whistler
were bracing for hard economic times.  Although no one specifically told Ms. Hickey
that her job was in jeopardy, she believed that “the writing was on the wall”
and that it was only a matter of time before her position would disappear.  She
decided it would be preferable to find another job while she was still in
control of the situation.  To that end, she left Thornhill in November 2008 and
returned to Pique News as a receptionist the next month.  It was a full-time
position paying $16 per hour, which was considerably less than her salary at
Thornhill.

[14]        
Ms. Hickey took steps that she believed would effectively counterbalance
the significant reduction in her salary.  She redeemed the sum of $17,400 from
her remaining RRSPs to pay down her line of credit, leaving her with only $600
in debt in addition to her sizeable mortgage.  She also prepared a budget to
help her live within her frugal means until she either secured a better-paying full-time
job or found part-time work to supplement her income as a receptionist.  Ms. Hickey
also had in mind that she would be able to modestly augment her income from
both her teddy bear sideline and from trying her hand at desktop publishing.

[15]        
Despite the belief that by adhering to an austere lifestyle she would be
able to weather the economic storm from paycheque to paycheque, Ms. Hickey
was admittedly worried about the precarious financial climate.

[16]        
The Accident intervened during this transition period in her employment.

·       The
Accident

[17]        
At the time of the Accident, Ms. Hickey was in a line of traffic
stopped northbound on Highway 99 in Whistler.  In her rear view mirror she
could see an SUV approaching “too quickly” and knew it would not be able to
stop in time, and that a collision was inevitable.  Upon impact, her vehicle
was propelled into a lane of oncoming traffic and she had to swerve two or
three times to avoid other vehicles.

[18]        
I accept Ms. Hickey’s evidence that she experienced the impact as being
“very harsh” and “jarring” and that she found the entire ordeal shocking.  She
was too shaken and upset to drive, and went to a friend’s nearby house to calm
herself before continuing home.

·       Summary
of Medical Evidence

[19]        
The day following the Accident, Ms. Hickey saw her family
physician, Dr. Cathryn Zeglinski.  Ms. Hickey’s testimony as to the
nature and effect of her physical injuries in the aftermath of the Accident, in
combination with Dr. Zeglinski’s evidence, amply establishes that she
began to experience pain and other symptoms in her neck, left shoulder and
throughout her back the day after the Accident.

[20]        
Dr. Zeglinski advised Ms. Hickey to attend physiotherapy and
recommended she be off work for one week, which she subsequently extended for a
further week.

[21]        
On January 19, 2009, Ms. Hickey returned to Pique News on a
graduated basis, working every other day for three or four hours and building
from there.  Pique News wanted to lay off Ms. Hickey until she could
resume her full-time duties.  Instead, arrangements were made for the Insurance
Corporation of British Columbia (“ICBC”) to pay for the hours that Ms. Hickey
worked on a part-time basis.  By February 16, 2009, she had resumed her
full-time hours.  I am satisfied that Ms. Hickey continued to be
significantly symptomatic when she assumed her full-time workload, but could
not afford to miss any further time away.

[22]        
Not long after the Accident, Ms. Hickey began to experience some
paraesthesia in her lower extremities and pain her left pelvis, left buttock
and posterior thigh, with sharp pain into her feet and some of her toes.  In
the spring of 2009, she complained to Dr. Zeglinski of intermittent
soreness and fatigue in her left wrist with certain repetitive activities such
as sewing and doing the “tear sheets” at work.

[23]        
A CT scan of Ms. Hickey’s lumbar spine was conducted in late April
or early May, 2009 to investigate her ongoing complaints of sciatica-like
symptoms and pain.  It revealed a disc protrusion in Ms. Hickey’s spine, contacting
both the right and left L5 nerve roots, with possible compression of the right
L5 nerve root.  That was consistent with Dr. Zeglinski’s clinical
observations.

[24]        
As a result of these findings, Dr. Zeglinski referred Ms. Hickey
to Dr. Gul, a neurosurgeon, who examined her in June or July 2009.  At the
time of Dr. Gul’s assessment, the pain in Ms. Hickey’s buttock and
extremities had significantly improved and she was experiencing no sciatic
symptoms of any kind.  He advised her to curtail her physical activities with
the goal of minimizing the mechanical stress on her spine and to continue
receiving physiotherapy.  He told her she was not a candidate for surgery.

[25]        
Ms. Hickey regularly attended physiotherapy throughout 2009.  She
also had some massage sessions and tried acupuncture.  In compliance with her
physiotherapist’s recommendation, she purchased a back brace which she wore
continuously for about one and a half weeks, and periodically thereafter.  The
brace helped Ms. Hickey maintain a healthy posture, but did not alleviate
her pain.  In time, she noticed that her physical symptoms were improving,
although her pain was becoming more localized to her back and scapula area.

[26]        
By the end of 2009, Ms. Hickey’s soft tissue symptoms had greatly
improved.  Even so, certain activities such as prolonged sitting, standing and
walking, as well as working at the computer, were capable of aggravating her symptoms
and continued to interfere with her sleep and negatively affect her energy
level and concentration at work.

[27]        
Despite the steady progress made toward resolving her chief physical
complaints, Ms. Hickey was still not able to fully pursue her usual
recreational activities.  She tried snowshoeing once but had to stop due to the
pain in her legs, and could not resume former pursuits, such as hiking and
biking due to back pain.

[28]        
Ms. Hickey had built her social life in Whistler around her outdoor
activities.  For example, it was common for her and friends to do a day-long
hike and then go for dinner.  The physical limitations imposed by her injuries
diminished her social life.

[29]        
According to Ms. Hickey, her inability to participate in physical
activities at her pre-Accident levels made it difficult to keep her weight in
check and the loss of control she felt over that element of her life reactivated
her eating disorder.

[30]        
Ms. Hickey testified that the physical ill-effects of the Accident
hit her hard.  She felt like she was failing and yearned for her former life. 
At some stage, she began to develop psychological symptoms.  Being in crowds started
to bother her.  Loud noises easily startled her, and vibrations in the floor
negatively affected her.  Her mood flattened, and she became irritable and
withdrawn.

[31]        
Ms. Hickey maintained her weekly telephone counselling appointments
with Mr. Cameron throughout 2009.  She testified that during some of their
post-Accident sessions, they discussed strategies to help her manage the
negative effects of the Accident.  She explained that she did not tell Dr. Zeglinski
about her declining mood and other psychological symptoms because they were
being adequately addressed by Mr. Cameron.  I consider her explanation
plausible.

·       Whistler
Employment and Employment Opportunities after the Accident

[32]        
I accept Ms. Hickey’s evidence that when she rejoined Pique News
she was actively keeping an eye out for a better paying full-time job.  Indeed,
she had applied for at least one position shortly before the Accident at
Tourism Whistler.  She went to the interview two days after the Accident, but
did not obtain the position, evidently because she was overqualified for it.  The
person who interviewed her told her about an opening with the local arts
council.  Ms. Hickey believed that she was a strong candidate for that
job; however, based on her involvement at local craft fairs, she was also aware
that council employees worked long hours.  She testified that she did not
pursue that prospective job because she was not confident that she could tolerate
sitting and working at a desk for lengthy periods of time.  Ms. Hickey
gave no further details about the nature of the arts council position and did
not know what it paid.  Given that she was informed of the opportunity just two
days after the Accident, which was long before she could have known that her
injuries would persist and before she had experienced the pain caused by her
disc protrusion, I do not accept her testimony that she was concerned that she
may not have the physical capacity to perform that job.

[33]        
Through a contact at Donaldson Land and Snow (“Donaldson”), a local
property management and landscaping company, Ms. Hickey had an opportunity
to clean and landscape Whistler rental units.  The pay rate was $150 for a full
house cleaning or $20 per hour to clean and $15 per hour for landscaping. 
After the Accident, Ms. Hickey performed housecleaning services for
Donaldson on one occasion.  I accept her evidence that the work significantly
aggravated her back pain.  Thereafter, Donaldson called Ms. Hickey about
cleaning or landscaping jobs “every couple of weeks” for awhile, but she
declined the work for fear of exacerbating her symptoms.

[34]        
In the spring of 2009, Ms. Hickey reassumed the position she had
originally held with Pique News and her hourly wage increased to $18 per hour.

[35]        
Ms. Hickey agreed that not only was the Whistler real estate market
in a free-fall, the local job market also worsened in 2009.  She placed a
newspaper ad to do desktop publishing, but received no response.  She says she
would not have been able to pursue that self-employment in any event because of
the difficulties she encountered with prolonged sitting in front of a computer.

·       Return
to Ontario – 2009

[36]        
Ms. Hickey sank deeper and deeper into debt.  Her deteriorating financial
situation caused her considerable stress and anxiety.  In the late fall of
2009, she rented out her Pemberton condominium and returned to Toronto where
she had a better network to assist her in finding employment and could lean on
her family for support.  While looking for work in Toronto, she underwent an
active rehabilitation program under the direction of a kinesiologist in accordance
with Dr. Zeglinski’s suggestion.  Those sessions “really helped” improve Ms. Hickey’s
physical symptoms.

[37]        
The job prospects for Ms. Hickey in Toronto were much better than
they had been in Whistler.  She found a temporary position as a college
instructor from March until May 2010.  Beginning that May, she obtained work as
an executive assistant at the college covering a one-year maternity leave for
an annual salary of $52,000.  In September, Ms. Hickey took on a second
job at the college running the night school program.  Until the end of April
2011, she worked as an executive assistant during the day and an administrator
and instructor of the night school program in the evenings.  Her T4 income for
2010 was $51,599.17, which was essentially equivalent to her earnings in 2008
from Thornhill.

[38]        
Ms. Hickey testified that after working two jobs for eight months,
she was a “mess” and in constant pain.  She experienced flare-ups of her back
pain at an intensity of 10 out of 10 and testified that she saw her doctor “a
lot” and received some acupuncture treatment.  She also took some sick days
which were covered by her employer.

[39]        
Ms. Hickey agreed that when she left Whistler, she understood that
the mortgage owing against her condominium exceeded its market value.  Despite
her substantial lift in earnings by the early spring of 2010, she was not able
to stabilize her financial situation.  She filed a consumer proposal in
December 2010 and around that time, her condominium went into foreclosure.  These
events intensified Ms. Hickey’s stress and anxiety such that she was
prescribed an antidepressant by her doctor in Ontario.  The medication reduced
her racing thoughts, helped restore her sleep, and had a positive effect
overall.

[40]        
When Ms. Hickey’s contract with the college came to an end in the
spring of 2011, she obtained a permanent position in instructional design with
the Bank of Montreal.  It is a job that she “loves”.  Her annual salary started
at $64,000 and by the time of trial, had increased to approximately $73,000.

[41]        
The instructional design job allows Ms. Hickey to work at home at
her discretion and she regularly takes advantage of that option.  That
flexibility helps her manage her pain, because she free to move about, shift
her posture and positions as she likes, dress more comfortably, sit with
pillows propped behind her back and spread out her work over more hours.

[42]        
Ms. Hickey intends to apply for a senior instructional design
position with her employer.  She understands that if she succeeds in obtaining
it, she will be required to work more hours at the office than at home, which
will curtail the flexibility she currently enjoys.  While she acknowledged that
episodic flares of her back pain could interfere and make it difficult to meet
the requirements of the project management aspect of that position, she does
not intend to let those concerns dissuade her from at least trying to ascend
the corporate ladder.

[43]        
The defence called no evidence.

Causation

·       Overview

[44]        
For Ms. Hickey to recover damages there must be a causal link
between the Accident and her injuries.  The law does not draw a distinction
between injuries that are psychological in nature and those that are physical. 
The primary test used in determining causation is known as the “but for” test. 
The plaintiff bears the burden of showing that “but for” the defendant’s
negligent act or omission, her injury would not have occurred.  Applying it to
the case at hand requires that Ms. Hickey prove that it is more likely
than not that without the Accident her injuries would not have occurred: Athey
v. Leonati, [1996] 3 S.C.R. 458; Blackwater v. Plint, [2005]
2 S.C.R. 3.

[45]        
The causation test does not demand scientific precision and is not to be
applied too rigidly: Snell v. Farrell, [1990] 2 S.C.R. 311.  Causation
is a practical question of fact which can best be answered by ordinary common
sense.

[46]        
Ms. Hickey does not need to establish that the defendant’s wrongful
conduct is the sole cause of her injury.  So long as she establishes a
substantial connection between the injuries and his negligence beyond the “de
minimis” range, the defendant will be fully liable for the harm she suffers,
even if other causal factors, which he is not responsible for, were at play in
producing the harm: Farrant v. Laktin, 2011 BCCA 336; Athey; Resurfice
Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32.

[47]        
The Court is called upon to exercise caution in inferring legal
causation by exclusive or substantial reference to a temporal sequence of
events: Madill v. Sithivong, 2012 BCCA 62 at para. 20; White v.
Stonestreet, 2006 BCSC 801 at paras. 74-75.  As I noted in Erickson
v. Sibble, 2012 BCSC 1880, it does not follow that the judicial insistence
of caution signifies judicial thinking that temporal reasoning is an
illegitimate analysis or a branch of logic to be seldom invoked.

·       Analysis
of Causation

[48]        
Before she relocated to Toronto, Ms. Hickey last saw Dr. Zeglinski
on December 7, 2009 for matters unrelated to the Accident.  She returned
for a reassessment more than two years later, on February 7, 2012.  Ms. Hickey
tendered the expert opinion evidence of Dr. Zeglinski in the form of two
written reports: the first dated May 1, 2010 and the other March 25,
2012, which incorporated reference to her follow-up on February 7.  Dr. Zeglinski
also testified at trial.

[49]        
Dr. Zeglinski’s evidence, together with the testimony of Ms. Hickey
and her mother and other lay witnesses, amply establishes that the Accident
caused soft tissue injuries to Ms. Hickey’s neck, left shoulder, mid-back
and low back and occasional mild discomfort to her wrist.  The defence does not
seriously dispute causation of those injuries.  The contentious issues pertain
to the causation of Ms. Hickey’s disc protrusion, depression and the relapse
of her eating disorder.

[50]        
It is Ms. Hickey’s position that the disc protrusion in her lumbar
spine and resultant pain stemmed from the Accident.  The defendant suggested
that the protrusion may well have been present, although not symptomatic,
before the Accident.  He hypothesized that it could have become symptomatic after
the Accident and without any connection to it, and thus cannot be said to be
causally connected to the Accident.  In support of this position, defence counsel
pointed to the fact that there was no pre-Accident imaging of Ms. Hickey’s
lumbar spine.  He also stressed Dr. Zeglinski’s evidence to the effect that
such afflictions are present in the general population, that an individual with
a protrusion may have no symptoms, and that Ms. Hickey’s protrusion is
located at one of the levels of the spine where protrusions commonly occur.

[51]        
Dr. Zeglinski agreed that it is not possible to know the precise
etiology of the disc protrusion in Ms. Hickey’s spine.  She explained,
however, that evidence of chronic degenerative changes of the spine may
indicate a pre-Accident presence, and there was no evidence of such changes in Ms. Hickey’s
case.  She also considered it notable that Ms. Hickey had no history of
back pain and there was no evidence that prior to the Accident she had
experienced any symptoms associated with a disc protrusion.  Dr. Zeglinski
persuasively rejected the proposition that the occurrence of a protrusion would
be more likely for an active individual, such as Ms. Hickey.  In her first
report she opined:

However, after any disruption of
this nature to the spine and with the existing evidence of the disc herniation
in a patient who had no previously documented back pain, it is reasonable to
assume that the forces of the collision did induce either all or partial disc
herniation…

[52]        
The concepts of etiology in the medical sphere and causation at law are
not synonymous.  This is because the “but for” test need only be established on
a balance of probabilities, in contrast to the more rigorous standard that
approaches scientific certainty familiar to the medical field: Erickson,
at para. 244, citing Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 144-146.

[53]        
All things considered, the probabilities of the evidence reasonably
support the inference that the Accident caused the protrusion of Ms. Hickey’s
disc or rendered symptomatic, a previously existing asymptomatic protrusion.

[54]        
With respect to the constellation of Ms. Hickey’s psychological symptoms,
she says that in a domino-effect fashion her physical injuries from the
Accident intensified her stress and caused her symptoms of anxiety and
depression.  More specifically, the alleged link is that the pain and
limitations flowing from her physical injuries, which themselves were negative
stressors, prevented Ms. Hickey from supplementing her post-Accident
income as she had intended.  That, in turn, significantly magnified the stress
and anxiety she was already feeling on account of her dire financial
predicament, and contributed toward the development of her depression.  She
also claims that her eating disorder, which had been dormant for more than a
year prior to the Accident, re-emerged as a result of the Accident and blames
the Accident for the onset of her social phobia.

[55]        
The defence rejects any causal link between Ms. Hickey’s financial
stress and the Accident and between her physical injuries and her psychological
symptoms or the relapse of her eating disorder.  The defendant says that her deteriorating
financial circumstances were entirely related to the prevailing economic
climate and that she had already been experiencing some degree of situational
depression in response to those circumstances, prior to the Accident.  The
defendant’s position relative to the re-emergence of Ms. Hickey’s eating disorder
and her development of social phobia was less than clear.  I have assumed that the
requisite causal connection is disputed.

[56]        
The day after the Accident, Ms. Hickey completed a form for Dr. Zeglinski’s
office.  In it, she indicated that she had general symptoms of fatigue and
depression.  The defendant contends that Ms. Hickey’s self-description
shows that she must have been depressed before the Accident.  His companion
assertion is that the presence of ongoing depression is further corroborated by
the fact that she had been in counselling with Mr. Cameron since 2007.  As
to the latter point, there was no cogent evidence that Ms. Hickey was
consulting Mr. Cameron for depression or anxiety before the Accident.

[57]        
In cross-examination, Ms. Hickey agreed that her depressed mood did
not develop “overnight”.  However, she would not agree that she was already
suffering from a situational depression before the Accident due to her
worrisome financial situation.  She testified that when she filled out that
form the day after the Accident, she was still much stressed and felt sad and “down”
about the Accident, and that was what she had intended to convey.

[58]        
Ms. Hickey’s mother and two close friends credibly testified that
after the Accident, Ms. Hickey became more downcast and introverted.  Her
confidence appeared to be broken and she seemed timid and became withdrawn. 
Her mother lamented that after the Accident her daughter had “lost her spirit”. 
None of them had observed these attributes or any indicia of depression in Ms. Hickey
prior to the Accident.  In the face of this evidence and Ms. Hickey’s convincing
testimony on the matter, the fact that she circled the word “depression” on the
medical form and had been receiving counselling from Mr. Cameron prior to
the Accident, does not persuade me that she suffered from any symptoms of
depression before the Accident.

[59]        
In support of her assertion that the Accident caused her cluster of
psychological symptoms, Ms. Hickey relies on the report of Dr. K. Riar,
a psychiatrist who assessed her for approximately two hours on February 8,
2012.  The following passages from Dr. Riar’s opinion are relevant to the
issue:

Following the accident Ms. Hickey certainly had symptoms
of depression, anxiety and bulimia nervosa.  I believe that her symptoms of
depression and anxiety can be clustered under Adjustment Disorder with Mixed
Anxiety and Mood Disturbances. …

… As far as symptoms for her depression and anxiety are
concerned, although I believe that Ms. Hickey was vulnerable to experience
psychiatric symptoms due to her past history, in the absence of the Accident,
she most likely would not have suffered anxiety and depression.  I believe that
the Accident and its sequelae were responsible for bringing on the symptoms of
anxiety and depression, and they lingered on due to ongoing stress and lack of
proper treatment.

…

As far as symptoms of bulimia
nervosa, this is a life-long disorder and has close association with stress in
a person’s life and also other psychiatric disorders.  I believe that the
accident-related stressors have been responsible for re-emergence of symptoms
of bulimia which have fluctuated from time to time since. …  In my view, her
anxiety symptoms evolved into social phobia and in the absence of the accident,
she most likely would not have had these symptoms.

[60]        
Dr. Riar was fully aware that Ms. Hickey had been receiving
weekly counselling from Mr. Cameron since 2007.  He had evidently received
a letter (which was not in evidence) from Mr. Cameron commenting on those
sessions.

[61]        
One of the assumptions underlying Dr. Riar’s opinion on causation
of Ms. Hickey’s depression is that her physical injuries were related to
her inability to “get out of debt”, and that financial stress contributed to her
symptoms of anxiety and depression.  In cross-examination, he agreed there was
some possibility Ms. Hickey’s financial losses and the issues associated
around relocating to Whistler, buying and then losing her condominium, having
to change jobs, and the piling up of debt could have caused her anxiety and
depression in the absence of the Accident.  In conceding that possibility, Dr. Riar
added that even if that were the case, Ms. Hickey’s symptoms may not have
developed to the same extent.

[62]        
There is no question that Ms. Hickey is a resourceful, determined
and hard-working individual and that she genuinely intended to take whatever
steps were reasonably necessary to increase her income after leaving
Thornhill.  However, her drive and capability were not the problem.  The fact
is, there was very little in the way of employment opportunities available to Ms. Hickey
to augment her earnings, whether in substitution for her modest-paying job at
Pique News or in the way of part-time work.  The grim job market in the
Whistler area was at the root of her limited employment prospects and it was
unconnected to the Accident.  The evidence suggests that, at most, Ms. Hickey
would have been able to secure a minimal amount of part-time work that paid an hourly
rate of between $15 and $18.  I conclude that the modest earnings that she could
have generated from such part-time work had the Accident not occurred, would
not have had an appreciably positive impact on her spiralling financial
circumstances.  There was virtually no evidence of any lost job opportunities
from the time that she returned to Toronto until she secured her position at
the college in March 2010.

[63]        
That said, it cannot be seriously disputed that in consequence of the
Accident Ms. Hickey’s financial circumstances became increasingly dire for
a time.  Although starting in late January 2009, ICBC began to cover a small
portion of her direct wage loss, she was not paid the lion’s share of her lost
wages until the middle of March that year.  Within the same time frame and
beyond, she was also regularly incurring user fees for her physiotherapy sessions
and spending money on unexpected ancillary items, such as a balance ball and a back
brace, all of which were necessitated by the Accident.  Although it would
appear Ms. Hickey was reimbursed for most of her user fees in due course,
it was her responsibility to incur and then carry that cost for some period of
time.  Given that she was already living on a strict budget requiring her to
live hand to mouth, she was not in a position to shoulder any extra
unanticipated expenses or withstand a financial shortfall of her regular
earnings for weeks on end.  I find that this unwelcome state of affairs
heightened her financial predicament, worsened her level of anxiety and
substantially contributed to her depression.

[64]        
It must not be overlooked that Dr. Riar identified factors, other
than the stress linked to her financial circumstances, which he believed
contributed to the development of Ms. Hickey’s anxiety and depression. 
Those include her feeling of being stuck in life due to her physical
limitations and worrying that her injuries might ultimately render her disabled
like her father.  Ms. Hickey testified along the same lines.

[65]        
In the end, Dr. Riar did not retreat from his fundamental opinion
that, in all probability, the sequelae of the Accident played a causative role
in the manifestation of Ms. Hickey’s anxiety and depression.  I accept his
opinion that despite Ms. Hickey’s vulnerability to experience psychiatric
symptoms, she most likely would not have suffered anxiety and depression in the
absence of the Accident.

[66]        
Dr. Riar pointed out that Ms. Hickey places tremendous significance
and value on her weight, which is bound up with her sense of self-worth.  I am
satisfied that her Accident-induced injuries prevented her from engaging in her
usual pattern of physically demanding recreational pursuits, which she depended
on as an effective mechanism to keep her weight at a level she found acceptable. 
I conclude that, in turn, likely contributed in a substantial way to her eating
disorder resurfacing in the wake of the Accident.

[67]        
In Dr. Riar’s view, Ms. Hickey’s anxiety arising in
consequence of the Accident evolved into social phobia.  He testified that
social phobia can be quite debilitating, provoking symptoms of overwhelming
anxiety being around people, panic attacks and difficulty breathing. 
Individuals suffering from this phobia often withdraw from the outside world,
much as Ms. Hickey did for awhile, in order to avoid triggering the
symptoms.  In Ms. Hickey’s case, there was also an overlap with her eating
disorder in that her anxiety about being among a crowd is also tied to her body
image issues.  There was no suggestion that Ms. Hickey battled social
phobia before the Accident.  In Dr. Riar’s opinion, Ms. Hickey most
likely would not have developed this phobia in the absence of the Accident. 
His opinion is uncontroverted and finds support in the credible testimony of Ms. Hickey
and of her longstanding friend, Sophie Derksen.

[68]        
I accept Dr. Riar’s opinions across the board.

[69]        
In summary, as to Ms. Hickey’s psychological injuries, I conclude
that, in all probability, the Accident caused an appreciable increase in her
anxiety and a relapse of bulimia, and contributed in a substantial way to the
development of her depression and social phobia.

Damages

·       Overview

[70]        
The purpose of damages is theoretically to restore an injured plaintiff
to the same position she was in just before the accident to the extent that
monetary damages are capable of doing so.

[71]        
People have different physical and psychological susceptibility to
injuries.  A fundamental principle in the assessment of damages is that the
defendant must take the plaintiff as she is.  A plaintiff whose unique
psychological makeup or pre-existing physical condition makes her more
vulnerable to sustaining injury is to be compensated for the entire extent of
her injury, both physical and/or psychological, caused by the defendant’s
negligence.  This is so even where due to some unique feature of the plaintiff
herself, the injury was greater or of a more dramatic or severe or different
type than one would expect an average person to sustain.  It is no answer for a
defendant to say that the plaintiff would have suffered less injury or a
different kind of injury or no injury at all, if she had been less susceptible
or vulnerable.  It is the impact of the accident on the actual plaintiff and
not on a fictional one that is relevant for compensatory purposes: Athey.

[72]        
Just as fundamental is that a defendant is not expected to put the
plaintiff in a better position that she had been the moment before the accident
happened.  It is the difference between the plaintiff’s original position, with
any attendant risks and shortcomings, just before the accident and her injured
position after and as a result of the accident, that comprises her loss: Athey,
at paras. 34-35.

[73]        
A pre-existing condition, latent or active, is part of the plaintiff’s
original condition.  Where there is a measurable risk that a pre-existing
condition would have detrimentally affected the plaintiff in the future without
the defendant’s negligence, that risk must be taken into account and serves to
reduce the award of damages.  The contingency of a pre-existing condition
manifesting on its own at some point does not have to be proven to a certainty
– it is given weight according to its relative likelihood: A. (T.W.N.) v.
Clarke, 2003 BCCA 670.

[74]        
In the event the Accident caused Ms. Hickey’s formerly dormant disc
protrusion to become symptomatic (as opposed to causing the protrusion per
se), it is important to note that the medical evidence fell way short of
supporting a finding of a measurable risk that, absent the Accident, Ms. Hickey
would have experienced the symptoms associated with her disc protrusion.  Accordingly,
there is no principled basis to reduce any award for damages to reflect a
measurable risk that a pre-existing protrusion would have become symptomatic
and detrimentally affected Ms. Hickey in the future, without the Accident.

·       Non-Pecuniary
Damages

[75]        
The parties are apart – although not significantly – on this head of
damages.

[76]        
Ms. Hickey seeks an award of $70,000.  The defendant submits that damages
in the range of $40,000, at most, would be ample.

[77]        
Non-pecuniary damages are intended to compensate a plaintiff for the
pain, suffering and loss of enjoyment of life and of amenities experienced as a
result of the defendant’s negligence.  They are meant to compensate for the
damages suffered to the date of trial and those that the plaintiff will suffer into
the future.

[78]        
The award should be fair and reasonable for both parties as those
concepts are measured against the adverse impact of the particular injuries on
the particular plaintiff: Hunt v. Ugre, 2012 BCSC 1704 at para. 176. 
While fairness is assessed by reference to awards made in comparable cases,
because of the requirement for an individualized assessment each case is
decided on its own unique facts.  The process is one of assessment and is not
amenable to mathematical precision: Drodge v. Kozak, 2011 BCSC 1316; Trites
v. Penner, 2010 BCSC 882; Lindal v. Lindal, [1981] 2 S.C.R. 629.

[79]        
In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, Kirkpatrick J.A.
set out a non-exhaustive list of factors to be considered in awarding damages
under this head.  They include: the plaintiff’s age; the nature of the injury;
the severity and duration of the pain; disability; emotional suffering; loss or
impairment of life; impairment of family, marital and social relationships;
impairment of physical and mental abilities, loss of lifestyle and the
plaintiff’s stoicism.

[80]        
Dr. Zeglinski noted that within the first eleven months or so
following the Accident, Ms. Hickey’s soft tissue symptoms had improved
substantially from her initial complaints.  Although they had not resolved, Dr. Zeglinski
anticipated a bright prognosis for Ms. Hickey relative to those injuries. 
There was a paucity of evidence about the nature and frequency of Ms. Hickey’s
medical appointments after she returned to Toronto, other than her general
account at trial to the effect that when she was working the two jobs at the
college, she went to the doctor “a lot”.

[81]        
Upon re-establishing herself in Toronto, Ms. Hickey gradually reclaimed an
active, functioning lifestyle.  At the time of trial, she was able to resume
most, but not all, of the kinds of physical activities she enjoyed before the
Accident.  At present, she participates in boxing as part of circuit training,
rides her bike regularly, and is a member of rowing club that won a regatta in
November 2011.

[82]        
When Ms. Hickey was seen by Dr. Zeglinski on February 7,
2012, she reported overall improvement to her neck and back pain.  She also
told Dr. Zeglinski that she noticed a worsening of back pain with her
menstrual cycle and with certain activities, such as a boxing fitness class
that she found to be too jarring.  She had not experienced any further
radiculopathy down her legs.  No significant wrist pain was detected and
Dr. Zeglinski did not correlate the wrist discomfort she was then
reporting to the Accident.

[83]        
In Dr. Zeglinski’s words:

I do anticipate that [Ms. Hickey]
may have some chronic neck and back pain for which she may need to seek
intermittent physiotherapy or use of analgesics for discomfort.  She will
likely be required to be careful with her ergonomics of sitting and standing
for the remainder of her lifetime.  She may be required to modify her workload
due to these constraints and also her recreational pursuits, and to be
continued to be encouraged to maintain and [sic] active lifestyle and an active
rehabilitation and efforts in regards to maintaining her strength to minimize
the functional stresses on her spine.

[84]        
I accept Dr. Zeglinski’s conclusion that Ms. Hickey has some
persistent residual upper and lower back pain that is prone to aggravation by
certain activities and which is chronic in nature.  I find that she still periodically
suffers from neck and back soreness and discomfort as a result of leisure and
everyday work activities, such as prolonged sitting, standing and walking, and
computer desk work.  Those symptoms can also be activated by seemingly
innocuous postures and movements, putting Ms. Hickey on guard for fear of
triggering them.

[85]        
I accept that the prognosis of Ms. Hickey’s neck and back pain is
favourable overall.  I find that although the flare-ups of those symptoms will
continue to be manifest and be bothersome, they will progressively diminish in
frequency and severity.

[86]        
In terms of the likelihood that Ms. Hickey may experience increased
symptoms or require surgical intervention in the future on account of her disc
protrusion, Dr. Zeglinski opined in her initial report:

The patient may have increased
symptomatology from this disc and it may require surgical intervention in the
future.  This is not predictable and if the patient maintains a good strong
core and good body ergonomics, we hope she will not result in any sequelae of
this nature.  However, this is a possibility.

[87]        
Ms. Hickey had not had any symptoms associated with that protrusion
since before her appointment with Dr. Gul in June or July 2009, and has
not required another referral to a neurosurgeon since then.  In my view, the
absence of symptoms over such a prolonged period suggests that Ms. Hickey
has enjoyed a full recovery in relation to any ill-effects of the disc
protrusion.  It also undermines Dr. Zeglinski’s admittedly speculative
concern of the possibility that Ms. Hickey might suffer symptoms and possibly
require surgery for that injury into the future.  I consider the prospect of
surgical intervention to be extremely unlikely.

[88]        
In Dr. Riar’s opinion, Ms. Hickey’s anxiety and depression had
improved significantly.  Shortly before he saw her in February 2012, it had
been in nearly complete remission for approximately one year.  Despite her mild
relapse, Dr. Riar’s opinion is that Ms. Hickey’s prognosis for
anxiety and depression is favourable.  In his view, she will likely have future
bouts when under stressful situations, however, those episodes would be due to Ms. Hickey’s
unique constitutional and genetic vulnerability and not to any after effect of
the Accident.

[89]        
The evidence establishes that the passing recurrence of
Ms. Hickey’s eating disorder caused by the Accident was on the mild side,
and was at no time disabling.  It is Dr. Riar’s opinion that since the
near remission of her depression and anxiety in 2011 and the marked improvement
of her physical injuries, Ms. Hickey’s episodes of bulimia in the latter
part of 2011 and any episodes of it going forward are not related to the
Accident.

[90]        
The probabilities of the evidence indicate that over time and in tandem
with the improvement of her physical body and the resumption of a relatively
active lifestyle, Ms. Hickey’s symptoms related to her social phobia have also
significantly diminished in intensity and frequency.  Dr. Riar’s
impression is that Ms. Hickey continues to experience mild social phobia
which he believes can be treated in 10-12 hours of counselling.

[91]        
Once again, I accept Dr. Riar’s opinions.

[92]        
By her own credible account and that of her friends and mother, Ms.
Hickey became a changed person after the Accident.  Her cheerful disposition
was overcome by anxiety, irritability and a downcast mood, which developed into
a depression.  She went from being an outgoing, active and confident woman to
one who was sad, cautious, withdrawn and socially phobic.  Maintaining a particular
body image and a perception of herself as fit and slender are extremely
important to her, more so than to others, and were negatively affected as a
result of the Accident.  Ms. Hickey testified that despite her progress,
from a physical perspective she has “never known this person”.  She still tires
more easily and experiences pain episodically.  As I have observed before,
enduring the experience of pain, even when it has become mild and intermittent,
impinges on and forces both obvious and subtle adjustments to life and lifestyle,
and can take a toll on everyday living.

[93]        
Mostly through her own grit and determination to reclaim her wellness, Ms. Hickey’s
injuries have improved significantly, and will continue to do so on all fronts.

[94]        
I have considered the case authorities placed before me by counsel.  Because
they provide general guidelines only, I do not propose to review them in detail
other than to remark that many of them are readily distinguishable.  Having
considered the evidence as a whole and the application of the governing
principles, it is my opinion that a fair and reasonable award for Ms. Hickey’s
non-pecuniary damages is $55,000.

·       Loss
of Earnings, Opportunity and Capacity

[95]        
The legal framework that informs an award for loss of earning capacity
was helpfully summarized by Dardi J. in Drodge at paras. 147-150:

The recent jurisprudence of the Court of Appeal has affirmed
that the plaintiff must demonstrate both an impairment to his or her earning
capacity, and that there is a real and substantial possibility that the diminishment
in earning capacity will result in a pecuniary loss. If the plaintiff
discharges that requirement, he or she may prove the quantification of that
loss of earning capacity either on an earnings approach or a “capital asset”
approach: Perren v. Lalari, 2010 BCCA 140 at para. 32.  Regardless
of the approach, the court must endeavour to quantify the financial harm
accruing to the plaintiff over the course of his or her working career: Pett
v. Pett, 2009 BCCA 232 at para. 19; X. v. Y. [2011 BCSC 944] at
para. 183.

As recently enumerated by the court in Falati v. Smith,
2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform
the assessment of loss of earning capacity include the following:

(1)   The standard of proof in relation to hypothetical or
future events is simple probability, not the balance of probabilities: Reilly
v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be
given weight according to their relative likelihood: Athey [supra]
at para. 27.

(2)   The court must make allowances for the possibility
that the assumptions upon which an award is based may prove to be wrong: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49
B.C.L.R. (2d) 99 (C.A.).  Evidence which supports a contingency must show a “realistic
as opposed to a speculative possibility”: Graham v. Rourke (1990), 75
O.R. (2d) 622 at 636 (C.A.).

(3)   The court must assess damages for loss of earning
capacity and not calculate them mathematically: Mulholland (Guardian ad litem
of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43.  The
overall fairness and reasonableness of the award must be considered: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 11.  The assessment is based on the
evidence, taking into account all positive and negative contingencies.

Although a claim for “past loss of income” is often
characterized as a separate head of damages, it is properly characterized as a
component of loss of earning capacity: Falati at para. 39. It is a
claim for the loss of value of the work that an injured plaintiff would have
performed but was unable to perform because of the injury: Rowe v. Bobell
Express Ltd., 2005 BCCA 141 at para. 30; Bradley at paras. 31-32;
X. v. Y. at para. 185.

This court in Falati at para. 40, summarized the
pertinent legal principles governing the assessment of post-accident, pre-trial
loss of earning capacity and concluded that:

… the determination of a plaintiff’s prospective
post-accident, pre-trial losses can involve considering many of the same contingencies
as govern the assessment of a loss of future earning capacity. … As stated by
Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,

“What would have happened in the past but for the injury is
no more ‘knowable’ than what will happen in the future and therefore it is
appropriate to assess the likelihood of hypothetical and future events rather
than applying the balance of probabilities test that is applied with respect to
past actual events.”

[96]        
The law has long recognized that unknown contingencies and uncertain
factors make it impossible to calculate lost opportunities and a loss of
earning capacity with any precision.  It is because the occurrence of
hypothetical and future events is unknown that allowances must be made for
relevant and realistic positive and negative contingencies.

[97]        
Ms. Hickey underwent a work capacity evaluation on February 9,
2012 conducted by Jeff Padvaiskas, an occupational therapist.  The report of Mr. Padvaiskas
was admitted as expert opinion evidence and he testified at trial.  He found Ms. Hickey
gave a full effort during the day of testing and that her reports about her
functioning were consistent with his observations and the tests he administered. 
He noted, if anything, she tended to minimize her symptoms.

[98]        
Mr. Padvaiskas concluded that Ms. Hickey is capable of work
activity in the sedentary, light and select medium-strength categories in
accordance with one set of guidelines, and limited light and select
medium-strength tasks pursuant to another set of criteria.  Applying these
findings to actual jobs, he opined that she is able to perform work in the
capacity of receptionist, executive assistant and/or her current instructional
design position.  Mr. Padvaiskas added the proviso that Ms. Hickey’s work
capacity was best suited to movement flexibility and observed that the fact she
was able to work from home at her discretion was important.

[99]        
In discussing Ms. Hickey’s susceptibility to future set-backs and flare-ups,
Mr. Padvaiskas observed that she would benefit from standing opportunities
throughout her work day.  He also remarked that she had managed her last
episode by modifying her extracurricular activities and by stopping the pace of
working two jobs at the college.

[100]     During the
course of the clinical testing, the intensity of Ms. Hickey’s discomfort
remained modest.  However, the next day, she reported to Mr. Padvaiskas that
her back pain was aggravated and, for about eight days following his
assessment, she had to modify her tasks and activities.  There is no evidence
that she missed any work due to the triggering of those symptoms.

[101]    
In terms of the relationship between episodic exacerbation and Ms. Hickey’s
work capacity, Mr. Padvaiskas wrote:

In the event that Ms. Hickey sustains a flare up or set back,
there would be expected impacts on her work tolerance.  The extent of the
limitations will be influenced by the degree of aggravation or set back. 
Potential influence would include reduced sitting tolerance and impaired
concentration and focussing abilities.  At the very least, this would influence
pace or work and potentially quality of work performed.

In addition, Ms. Hickey
reports a reduced tolerance for higher level and more exertional leisure
activity.  On the basis of her response to work capacity testing, the results
suggest that recovery opportunity following more demanding activity periods
remains a relevant consideration in the preservation of work ability.

Past Loss

[102]     Ms. Hickey
submits that her past income loss arises from two principal sources: the days
she actually missed from Pique News and periods of unemployment, and her past
loss of opportunity.

[103]     It is not
disputed that Ms. Hickey was unable to work for two straight weeks
immediately after the Accident, and could not resume her job on a full-time
basis until February 16, 2009.  Assuming an eight-hour day, her loss would
be the product of 8 hours x 30 days x $16 per hour, for a total of
$3,840.

[104]     As
mentioned, ICBC eventually covered all or most of Ms. Hickey’s past wage
loss.  Unfortunately, counsel do not appear to agree on the precise amount
paid.  I quantify Ms. Hickey’s wage loss to trial to be $3,840.  As she is
only entitled to receive her net loss, I direct counsel to make the necessary
calculations to determine the net figure.  I further direct counsel to
ascertain the amount paid to Ms. Hickey by ICBC in respect of her wage
loss, as that figure must be deducted from her damages.  Counsel have liberty
to apply if they are unable to reach consensus on either of these matters.

[105]     In her
reply to a demand for particulars, Ms. Hickey claimed that her lost
opportunity to trial in respect of missed work for Donaldson amounted to 32
hours at $18 per hour, for a total loss of $576.

[106]     I accept Ms. Hickey’s
testimony that she forewent opportunities to work for Donaldson due to her
physical injuries caused by the Accident.  The evidence does not prove that the
quantum of her lost opportunity at Donaldson was any greater than as she stated
in her reply.  As already mentioned, the evidence does not establish that her Accident-induced
injuries caused her to pass up any other job opportunities in Whistler, whether
in the form of full-time employment for superior pay or supplemental part-time
work.  In particular, the evidence surrounding the possibility of Ms. Hickey
securing a position with the arts council in Whistler lacked specificity and
does not support an evidentiary foundation for damages.

[107]     The
preponderance of the evidence suggests that Ms. Hickey’s plan to improve her
earnings when she accepted the job at Pique News was overly optimistic in light
of the economic crisis, and would not have panned out as she hoped even had the
Accident not happened.

[108]     I accept Ms. Hickey’s
evidence that while still in Whistler after the Accident, she made some teddy
bears and attended one craft fair, but was unable to do more than that on
account of her injuries.  There was no evidence about the amount of earnings,
if any, that she generated from that one fair.  I accept that she was unable to
fully pursue this creative endeavour in 2009, and conclude that she lost income
in an amount less than $1,000, which I assess at $700.  Ms. Hickey has not
proved any loss of opportunity connected with the desktop publishing sideline
that she hoped to establish.

[109]     The evidence
is unconvincing that Ms. Hickey gave up work or job opportunities of any
kind between the time she returned to Toronto and when she began her position
at the college in March.

[110]     In sum,
she is entitled to damages for past loss of earnings and opportunity in the
amount of $5,116 ($3,840 + $576 + $700), less the deductions referred to.

Future
Loss

[111]     Ms. Hickey
contends that the Accident is responsible for an impairment of her future
earning capacity that gives rise to a substantial possibility of pecuniary
loss.  She submits that her diminished capacity ought to be quantified using
the loss of capital asset model.  The defence contends that Ms. Hickey has
failed to prove any such loss and has no entitlement to damages under this
head.

[112]     My task is
to compare the likely future of Ms. Hickey’s working life if the Accident
had not happened with her likely future working life after the Accident: Gregory
v. ICBC, 2011 BCCA 144, at 32.

[113]     Taken
together, the evidence of Ms. Hickey, Dr. Zeglinski and
Mr. Padvaiskas shows that Ms. Hickey requires a flexible work
environment and one that allows her to perform her work at her leisure at home
as much as possible.  Future positions, including those with her long-standing
employer, the Bank of Montreal, may not permit her that flexibility.  That body
of evidence also indicates a real and substantial possibility that, in the
absence of such work flexibility and perhaps even with it, from time to time
the residual physical effects of the Accident will continue to be triggered and
adversely impact Ms. Hickey’s functional capacity at work and impair her
earning capacity.  All things considered, I am persuaded that Ms. Hickey’s
future working life has been impaired due to the Accident, as compared to her
future had the Accident not happened.  That said, I find that the episodes will
be mild in their intensity and in their disruptive effect and functional
impairment, and will not persist indefinitely and certainly not for the
remainder of her anticipated working life.  I am also satisfied that
Ms. Hickey has proven a real and substantial possibility that her
diminished capacity caused by the Accident will general a modest pecuniary loss
into the future.

[114]     In my
view, it is preferable to quantify Ms. Hickey’s loss by taking into account
the factors that inform the asset approach, as opposed to the earnings
approach, laid out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d)
353 (S.C.).  The evidence establishes that most of those factors have
application to Ms. Hickey.

[115]     Bearing in
mind the applicable legal principles and in light of the evidence,
I conclude that in all the circumstances the sum of $15,000 is a fair and
reasonable measure of the present value of Ms. Hickey’s loss of future
earnings capacity.

·       Special
Damages

[116]     Ms. Hickey
seeks an award of $8,906.27 in special damages for which she has provided most supporting
invoices.

[117]     A
significant component of her claimed expenses represents the costs she incurred
in moving from Whistler to Toronto in December 2009.  Given my findings, there is
no proper basis to characterize those costs as damages.

[118]     The
following special expenses are allowed:

·       Cost
of Future Care

[119]     In her
reports, Dr. Zeglinski stated that Ms. Hickey may well require the intermittent
use of anti-inflammatory medication or analgesics if she is required to sit for
prolonged periods.  Such costs would promote the physical health of
Ms. Hickey, and I have no doubt that she would be likely to incur them
based on the evidence.

[120]     Dr. Zeglinski
also believes that Ms. Hickey may require intermittent physiotherapy. 
While that may seem a sensible prediction from a medical perspective, there is
no evidence of Ms. Hickey receiving physiotherapy for a number of years and,
indeed, it appears she has not received acupuncture since at least 2011.  Ms.
Hickey has failed to establish that future physiotherapy sessions are
reasonably necessary to preserve her health within the meaning of the
authorities.  (see, for example, Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (S.C.) aff’d, (1987), 49 B.C.L.R. (2d)_ 99 (C.A.); Penner v.
Insurance Corporation of British Columbia, 2011 BCCA 135)]

[121]     Dr. Riar
recommends that Ms. Hickey continue with Mr. Cameron’s counselling, take
antidepressant medication, and attend an eating disorder clinic.  Based on my
findings, those costs can no longer be linked to the Accident.  Accordingly,
they are not the defendant’s burden.

[122]     The ten to
twelve one-hour sessions with a psychologist that Dr. Riar recommends Ms. Hickey
undergo to address her social phobia are properly payable by the defendants.

[123]     My
assessment is that the sum of $2,800 is the present value of an appropriate award
under this head.

·       Loss
of Housekeeping Capacity

[124]     Ms. Hickey
finds vacuuming bothersome and other housework sometimes difficult.  There was
no evidence that anyone assists her with those chores or that she has been able
to hire help.

[125]     The
evidence does not justify a stand-alone award of damages under this head. 
Instead, I have considered it as a factor in the assessment of
Ms. Hickey’s non-pecuniary damages.

Costs

[126]    
If the parties are unable to agree as to costs, they may file written
submissions implementing a time table of their choosing that incorporates a
final deadline of May 31, 2013.

________
“Ballance J.”_________________
The Honourable Madam Justice Ballance