IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130402

Docket: 49126

Registry:
Vernon

Between:

Janice L. Payne

Plaintiff

And

Natasha Ufimzeff
and Nickolas Ufimzeff

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
The plaintiff, Janice Payne, was injured in a motor vehicle accident on
February 12, 2010. Liability is admitted; at issue is the assessment of
damages.

The Accident

[2]            
Just before 5 p.m. on Friday, February 12, 2010, Mrs. Payne was
eastbound on Highway 6 on route from her employment in Vernon to her home in
Lumby. She was alone in her vehicle. The defendant, 17 year old Natasha
Ufimzeff, was driving her parents’ Honda Odyssey minivan westbound on Highway 6
on her way to work. Both drivers were travelling at or near the posted speed of
80 kilometres per hour. Ms. Ufimzeff momentarily diverted her attention
from the road, and when she did she drifted into the oncoming lane and in the
process sideswiped Mrs. Payne’s vehicle. Mrs. Payne, who has no
memory of the actual collision, was able to pull her vehicle off the highway,
although it was damaged beyond economic repair. Her husband, who was at home at
the time, was called by someone at the scene. He drove to the scene and took
her home.

[3]            
The airbags in Mrs. Payne’s vehicle were activated by the force of
the impact, and their activation caused some damage to her dental plate. Aside
from her dental injury, Mrs. Payne thought she was physically fine,
although it was apparent to her husband that she was somewhat disoriented and
in shock.

[4]            
The Paynes had arranged to have dinner with another couple that evening.
Mrs. Payne insisted that they keep their commitment and they did. She
began to feel poorly over the course of the evening, and as a result they went
home shortly after they finished their meal. The next day she grew
progressively more stiff and sore. On the following Monday she went to her
doctor, and so began two years of medical visits, assessments, treatments,
therapies and court-related appointments.

The Plaintiff’s Background

[5]            
Mrs. Payne is 64 years old. She and Mr. Payne have been
married for almost 30 years. Theirs was a second marriage for each of them. Mrs. Payne
has a daughter from her first marriage, and Mr. Payne has three children
from his first marriage. They each secured custody of their children, and thus
began their life together as a family of six. They have one child together, a
son who is now 32 years old. Their children have children of their own, and one
of those children has a child, the Paynes’ first, and thus far only, great
grandchild.

[6]            
Mr. Payne moved to Lumby from Alberta in the late 1960s. Mrs. Payne
was born and raised in Calgary, and she too found her way to British Columbia.
She moved to Lumby in the late 1970s. They met in Lumby, and have lived
together there ever since.

[7]            
The Paynes’ home is on 1.1 acres. The house has 1,500 square feet on
each of two levels. Some years ago they built a suite for Mrs. Payne’s
mother, who lived with them as her health declined. She died in 2012 at the age
of 97. The Paynes kept two gardens for most of the last 30 years. Mr. Payne
did the initial cultivating in the spring, and Mrs. Payne assumed primary
responsibility for them thereafter. She put up preserves, and supplemented the
family’s groceries with the produce she grew.

[8]            
As a couple, the Paynes’ home tended to be the focus of gatherings for
their extended families. Mrs. Payne is one of nine children. She is close
to her siblings and particularly close to her twin sister, Judy
De Champlain. The extended family celebrated their mother’s birthdays and,
from time to time, reunions and other anniversaries at her house. As a couple,
the Paynes’ enjoyed fishing and camping together. Before the motor vehicle
accident they liked to hike in the summer and snow shoe in the winter. They
have all-terrain vehicles which they liked to ride together both for recreation
and to gather firewood.

[9]            
Mrs. Payne enjoyed swimming prior to the accident. She was a member
of a masters swimming group in Vernon. She swam with that group three days a
week. She was generally active looking after grandchildren, tending her large
gardens, hosting gatherings, and working.

[10]        
Mrs. Payne is a radiological technician and has worked in that
field since 1966. She worked in hospitals until 1979 when she moved to Lumby.
Between 1979 and 1985 she did not work outside the home, but looked after their
five children on their large rural property. She returned to work part-time in
1985 at the Vernon Health Unit. In 2001, she obtained a position with the Vernon
Radiological Associates Corp. where she works today.

[11]        
 Mr. Payne is a welder by trade. He is 66 years old and, as he put
it, is “trying to be retired”. He has a shop on their property and continues to
do some work for long-time customers.

[12]        
Mrs. Payne’s job is part-time. Ordinarily she works three days a
week. Prior to the accident, she also worked extra shifts when asked. She took
about 12 such shifts a year, covering for holidays and illnesses of other
technicians. She enjoys her work and is a highly-valued employee. She hoped to
reduce her work commitment when she reached age 65, but did not plan to retire
completely. It was her hope, and her employer’s hope, that she would continue
to provide holiday and illness coverage for several years thereafter.

[13]        
Prior to the accident, and but for carpel tunnel syndrome which she was
experiencing in both of her wrists, she was in good health. Her carpel tunnel
syndrome manifested itself in numbness and tingling in her wrists and hands,
particularly at night.

The Plaintiff’s Injuries and Treatment

[14]        
The medical evidence as to the plaintiff’s injuries comes from Dr. Andrew
Travlos, a physical medicine and rehabilitation expert, and Dr. Chan, Mrs. Payne’s
general practitioner. Dr. Travlos saw Mrs. Payne at her lawyer’s
request and for purposes of this trial. With the exception of a disagreement
with Dr. Chan as to whether Mrs. Payne’s carpel tunnel syndrome is
related to the motor vehicle accident, Dr. Travlos’s opinion is not
contradicted and not otherwise challenged.

[15]        
According to Dr. Travlos and to Mrs. Payne, she suffered three
areas of injury in the accident. She sustained a soft tissue injury to her
neck. That injury gave rise to some headaches and stiffness, but both resolved
reasonably shortly after the accident. She sustained a more troublesome injury
to her right shoulder. She experiences myofascial pain in the muscles at the
back of her shoulder. The pain and limitations flowing from this injury are
present today. Finally, she sustained an injury to her thoracic spine. This
injury is mechanical in nature, and Mrs. Payne experiences it primarily as
pain in her rib area.

[16]        
After the accident the Paynes went on a trip to Tennessee to visit Mrs. Payne’s
sister. Because the trip had been arranged before the accident, they decided to
follow through notwithstanding that Mrs. Payne was not feeling
particularly well. In addition to the generalized aches she was experiencing,
she found that she could not raise her right arm much above her shoulder. If
she attempted to do that, her muscles went into spasm and it seemed to her as
if her ribs were being pulled out of place. After returning from the trip, Mrs. Payne
returned to work. She did so in spite of the fact that she was not feeling
particularly well, and in spite of the fact that the physical aspects of her
job aggravated the discomfort she experienced in her shoulder. Her employer
made allowances for her injuries, arranging for her to do work that was less
physically demanding. Mrs. Payne was confident that her injuries would
resolve reasonably quickly.

[17]        
The plaintiff saw Dr. Chan following the accident, and he diagnosed
soft tissue injury to her shoulder girdle and lower cervical spine. He noted
that she had a reduced range of motion in her right shoulder. He prescribed
massage therapy to reduce her muscle spasms, acupuncture for her pain, and
physiotherapy to improve her range of motion. She received physiotherapy on a
weekly basis for the next year. In addition, she attended 21 massage therapy
treatments in 2010. She received four acupuncture treatments during that time. Mrs. Payne
has a friend who worked with a hyperbaric chamber in Vancouver. Through that
friend, she was able to take six treatments in the chamber. All of this helped,
but none of it provided sustained or significant relief.

[18]        
Through ICBC Mrs. Payne began a focused work hardening program with
Meridian Rehabilitation Consulting in Vernon. She went for treatments three
half- days a week from February 2011 until the end of April. In combination
with the other therapies, notably physiotherapy which she continued to receive
once a week, she began to improve. She was given exercises and stretching to do
under the guidance of a kinesiologist. She did those diligently and continued
to improve. She began to resume more of her usual duties at work and returned
to swimming, albeit at a reduced level. In March 2012, while on the treadmill
at the gym, her back went into a painful spasm. She managed to get home and
into the bath, but since then she has experienced regular spasms. She has yet
to return to the level of function she experienced in early March 2012.

[19]        
Mrs. Payne impressed me as a relatively stoic individual not given
to complaint. She remains surprised and disappointed at the persistent nature
of her back and shoulder problems. She has done all that has been asked of her
to address her difficulties, and yet she remains limited in function and intermittently
in pain.

[20]        
According to Dr. Travlos, Mrs. Payne needs a structured
exercise regime which takes account of her injuries in the manner he pointed
out in his September 6, 2012 report. He is of the view that if she does that
she will experience some improvement. If in spite of following such a regime
she continues to feel pain, he thinks she may benefit from cortisone injections
in the “subacromial bursa”. If after several such injections she remains
symptomatic, the next level of intervention is surgical. While this
prescription is primarily directed to her shoulder difficulties the exercises
will, in Dr. Travlos’s opinion, also assist her thoracic spine. She will
not benefit from any other interventions in relation to her back.

[21]        
With the implementation of the foregoing program there is, in Dr. Travlos’s
view, a “reasonable expectation” of further improvement. Even with that, it is
likely she will be left with mild pain in her upper back and intermittent but
relatively frequent pain in her shoulder area. These sequelae will limit her
functionally and interfere with her recreation.

[22]        
Dr. Chan essentially agrees with Dr. Travlos’s opinion and
assessment. Their only point of disagreement is in relation to Mrs. Payne’s
carpel tunnel symptoms. As noted, she had carpel tunnel syndrome in both of her
wrists prior to the motor vehicle accident. The symptoms, particularly in her
left arm and wrist, have become more severe since the accident. In fact, Mrs. Payne
is scheduled to have her left wrist surgically repaired shortly. If that
surgery goes well then, following a six-week recovery period, she will have her
other wrist surgically repaired.

[23]        
Dr. Chan is of the view that the motor vehicle accident contributed
to Mrs. Payne’s carpel tunnel syndrome in one or two ways. First, the
symptoms in her left wrist and forearm have, according to Mrs. Payne,
significantly increased since the motor vehicle accident. She has been using
that arm much more extensively because of the pain and limitations she
experiences in her right shoulder. To the extent that is so, then the motor
vehicle accident might be causative of the exacerbation of the condition in the
left wrist. Second, according to Dr. Chan some forms of carpel tunnel
syndrome, particularly those related to the ulnar nerve, can be triggered by
trauma. Mrs. Payne testified that the nature of the pain she experiences
in her left wrist increased and changed following the motor vehicle accident.
The change is such that it seems to be consistent with impairment of the ulnar
nerve. For these reasons Dr. Chan feels the motor vehicle accident caused
and/or exacerbated her symptoms.

[24]        
Dr. Travlos thinks it more likely than not that the carpel tunnel
symptoms are unrelated to the motor vehicle accident. He is of that view
because the condition is generally progressive and she suffered from it before
the motor vehicle accident; thus, it was to be expected that she would both
continue to suffer from it and to suffer from it more acutely over time. He
accepts that trauma can aggravate the syndrome, but does not accept that trauma
did so in Mrs. Payne’s case because the first time she noticed a change in
her condition (or at least the first time it was recorded by any health care
provider) was some four months after the accident.

[25]        
I am not persuaded that any trauma from the accident caused the change
in Mrs. Payne’s carpel tunnel syndrome. I reach that conclusion because it
seems to me that if accident-related trauma were the cause, that would have
been apparent relatively shortly after the accident if not immediately after
it. Further, there is no evidence that Mrs. Payne suffered a blow of any
sort to her wrists or arms in the collision. I am, however, satisfied that the
increased pain that Mrs. Payne experiences in her left hand and wrist is partially
due to the increased use of that arm, which is in turn due to the limitations
in her right arm. In that way, and to that extent, the carpel tunnel syndrome
is related to the accident. Having said that, I am also satisfied that Mrs. Payne
would have required surgical repair of the condition in any event, perhaps not
as soon as she will now require the treatment but she would have required it. I
will take this into account in assessing her non‑pecuniary damage claim.

[26]        
In summary, I am satisfied that Mrs. Payne suffered a moderate soft
tissue injury to her right shoulder and thoracic spine. The injuries have given
rise to relatively constant but lower levels of pain, interspersed with
significantly painful spasms of debilitating pain. I am satisfied that she will
improve, but that she will be left with reasonably significant residual pain
and less frequent spasmodic painful episodes. All of this is in spite of Mrs. Payne’s
best efforts to aid in her own recovery.

The Implications of the Injuries

[27]        
Mrs. Payne’s injuries have given rise to the need for treatment.
She has attended over 100 physiotherapy treatments to date. She continues to
receive massage therapy, but now only once every three weeks. She has taken
acupuncture and devoted considerable time and effort to exercises intended to
improve her function. As she put it, during the past three years she spends
much of her time going to appointments and going to the gym. She has not been
able to continue swimming as she did before; nor has she been able to work
around her home as she did before. She has continued to work at her job, but
doing that and keeping the other accident-related appointments leaves her
tired. She has little energy for other things in life, including her
grandchildren and her extended family.

[28]        
Even if she had the energy, she is unable to ATV because she cannot cope
with the physical demands riding such a machine requires. She does much less
gardening, and does not put up the preserves she used to. The Paynes have
reduced the size of their gardens by about 60 percent, and Mr. Payne does
much more of the daily weeding and other duties than he did before. Mrs. Payne
even finds cooking a chore. Prior to the motor vehicle accident she derived
pleasure from cooking, and took pride in doing well.

[29]        
Mrs. Payne also took great pride in the way that she kept her
house. Her twin sister described her as a “work horse”. She maintained her home
and garden and she hosted large family gatherings, in addition to fishing,
travelling and looking after her grandchildren. When Mrs. De Champlain
visited, following the accident, she noticed a distinct decline in the way her
sister kept her house. She tried to help, without offending her sister, but it
was apparent that merely recounting her efforts in her sister’s presence was
not something she wished to do. She said, and I accept, that work tended to
define the plaintiff, not just her employment but the work she devoted to her
family and friends.

[30]        
Mrs. Payne said that all of this has left her feeling somewhat depressed.
Her husband said she had gained weight and is, at times, uncharacteristically
grumpy.

[31]        
I accept all of that which Mrs. De Champlain and Mr. Payne
said about the plaintiff. In fact, if anything, they seemed inclined to
understate the consequences of Mrs. Payne’s injuries likely because, as
with the plaintiff, complaining is not something they are comfortable doing.

The Implications of the Plaintiff’s Injuries on Her Employment

[32]        
As noted above, Mrs. Payne is a radiological technician. She works
for the Vernon Radiological Associates Corp. Vernon Radiological is owned by a
number of radiologists. It has a staff of 20 people, most of them radiological
technicians. The technicians perform x‑ray examinations and bone density
examinations on orders from doctors. Mrs. Payne has worked there since
2001, doing both x‑rays and bone density examinations. The clinic does x‑ray
exams five days a week and bone density exams two days a week, Wednesdays and
Thursdays.

[33]        
The physical demands of the two forms of examinations differ as does the
level of job satisfaction they produce. The clinic does x‑rays on between
80 and 100 patients a day. Some patients have several views taken. These x‑rays
are done by three technicians, so each technician may attend to about 30 patients
a day. An x‑ray may require that the patient lay on a table. If that is
necessary and if the patient is elderly or has limitations on his or her
mobility, the technician physically assists the patient onto the table and
positions them so that the appropriate examination can be done. The technician
must then put an apron on the patient, and then reach over head to move the x‑ray
tube into place. The tube is motorized, but requires some force in order to get
it moving and then to stop it in the proper position. The x‑rays are
captured on film which is contained in a cassette. The cassettes vary in size
depending on the part of the body being examined. Large ones weigh between four
and five pounds; smaller ones are about half of that. The technician must take
a cassette and put it in a “buckey”, which is part of the x‑ray
apparatus. Inserting it in the buckey involves a motion similar to inserting a
file folder into a ground level file drawer. The picture is taken and the
cassette is then lifted out and put in a reader. This sequence of actions is
repeated for each study and for each patient. The technician is, as a result,
lifting and adopting overhead postures throughout the working day.

[34]        
Bone density examinations are much less physically demanding. They involve
moving a patient onto a table and positioning them, and to that extent they are
similar to x‑ray examinations. The machine is different and requires
little physical effort and no overhead postures. From the technologist’s point
of view, the task is primarily computer based and, I infer, somewhat
monotonous. For that reason, it is a much less satisfying job than doing x‑rays.
My sense is that none of the technicians at the lab seek that kind of work,
although those that are qualified must do at least some bone density
examinations regularly in order to maintain their qualifications.

[35]        
Prior to the motor vehicle accident, Mrs. Payne worked three days a
week – two days of x‑ray work and one day of bone density work. The
technicians sometimes broke up the bone density shifts into two half shifts to
alleviate the boredom. In addition to her regular shifts, she also provided
holiday coverage. She would, for example, cover for Alta Duffield, her
supervisor, when she was away. Mrs. Payne’s plan was to work until October
2013 when she will turn 65, and then take shifts intermittently thereafter. She
wanted to do that for several reasons. First, she enjoys her job. Second, both
she and her husband enjoy travelling and hope to continue to do so in the
future. While they are financially comfortable, they are not wealthy and they
looked forward to Mrs. Payne’s ongoing income.

[36]        
Mrs. Payne has found that since the motor vehicle accident x‑ray
work is much more difficult for her. She was almost back to her pre-accident
duties when she suffered the setback in March 2012. Since then she has done
almost no x‑ray work at all. She has continued to do a shift of bone
density work each week, but little more.

[37]        
Mrs. Payne’s presentation at her work mirrors that described by
those familiar with her domestic circumstances. According to Bethan Miller, the
office manager, she has a very good work ethic, better than most. She does
whatever is asked of her and does not balk at working through breaks when the
clinic is busy. She does not hesitate to work extra shifts and on short notice
when required. Both Ms. Miller and Ms. Duffield commented on Mrs. Payne’s
desire to “pull her weight” at work, to be a productive member of the team.
Both have noted her frustration and disappointment since the motor vehicle
accident, when she has not been able to do that.

Damages

a)       Non-Pecuniary Damages

[38]        
The plaintiff argues that general damages of $75,000 are appropriate in
this case. In support counsel refer to Stapley v. Hejslet, 2006 BCCA 34,
for the analytical approach to the issue and to Courtney v. Hutchinson,
2012 BCSC 188, Garcha v. Duenas, 2011 BCSC 365, Bergman v. Standen,
2010 BCSC 1692, Trites v. Penner, 2010 BCSC 882, Lamont v. Stead,
2010 BCSC 432 and Schnare v. Roberts, 2009 BCSC 397 in support of the
quantum.

[39]        
The defendant argues that general damages in the range of $30,000 to
$35,000 are warranted, having regard to the decisions in Burton v. Insurance
Corporation of British Columbia, 2011 BCSC 653 and Lidher v. Toews,
2009 BCSC 1055.

[40]        
The plaintiff’s injuries gave rise to a relatively brief period of acute
discomfort and limitation following the accident. Within several months she
experienced improvement in her function and, by dint of significant effort, she
had recovered much, but not all of her pre-accident level of function, within
14 months. In March 2011 she suffered a setback, from which she has yet to
recover. She has remained in moderate intermittent pain, in spite of the fact
that she has modified many of her daily activities and eliminated most of the
physically demanding aspects of her employment. This is so, notwithstanding her
continued efforts to overcome her injuries.

[41]        
The pain she experiences leaves her enervated. She has lost the
satisfaction that she formerly took from maintaining her home and garden, and
she has lost much of her ability to participate in those recreational
activities that were important to her, particularly swimming and outdoor
pursuits. In addition, and over and above the monetary implications her
injuries have caused to her employment, she has lost much of the satisfaction
she formerly took from a job done well.

[42]        
I am satisfied that Mrs. Payne’s condition will improve, but not
for some time and not to the point that she will ever be pain free or able to
do that which she used to do. I reach this conclusion because her condition did
improve following the accident, and while she experienced a significant and
thus far persistent set back, I expect she will, particularly once her carpel
tunnel syndrome has been addressed, recover again. On the other hand, Mrs. Payne
has been diligent in her efforts to recover and yet she remains functionally
limited and in some pain.

[43]        
In Burton, Macaulay J. awarded $35,000 in general damages to a
plaintiff whose age is not recorded in the judgment but who had an 8 year old
child. Her situation was described by Macaulay J. at paragraph 41. He wrote
that she had:

…sustained a
moderate soft tissue injury that continues to cause significant discomfort,
based on her activity level, two and one-half years after the accident. I
further conclude that she will continue to improve if she undergoes a regime of
massage therapy as her doctor has recommended.

There is no indication in the decision that her injuries
were such that she required any specific therapy or other treatment in the two
years between the accident and the trial. In Lidher, L. Smith J. awarded
a 48-year-old mother $30,000 in general damages as a result of pain she had
experienced due to injuries to her neck and shoulders. Although the plaintiff
described significantly debilitating pain, the court found that she was
exaggerating and concluded that if she had applied herself to her own recovery,
she would have further ameliorated the “modest” pain she did experience.
Finally, Smith J. concluded that the plaintiff’s condition would continue to
improve to the point where her symptoms would be minimal.

[44]        
Mrs. Payne’s injuries, and the effect they have had on her, are
much more significant than those of the plaintiffs in the foregoing two cases.

[45]        
The plaintiff places significant reliance on Schnare and Garcha.
In Schnare the 32-year-old plaintiff was awarded $85,000 in general
damages. Adair J. summarized the plaintiff’s injuries at paragraph 62:

…Ms. Schnare’s injuries
have had a very significant effect on the quality of Ms. Schnare’s life. She
has back pain regularly, and from time to time flare-ups of severe pain; she
fatigues easily; she is unable to enjoy activities such as hiking or car trips
with her family; she is unable to participate in her children’s activities … in
the manner and to the degree she would like; household chores are more
difficult; she feels like a spectator on family activities, rather than
involved and engaged; her intimate relationship with her husband has changed;
and her strong desire to pursue a career as a kindergarten teacher has been
frustrated.

The consequences of the injuries sustained by Ms. Schnare
bare some similarity to those suffered by Mrs. Payne but they are different
in two important respects. Ms. Schnare was on the cusp of her career, and
that career was no longer open to her. Mrs. Payne is near the end of her
career, and while her injuries will affect the satisfaction she will derive
from her remaining years of work, those years are relatively few. Further,
while in both cases the injuries can be said to have permanent consequences,
those consequences will be endured much longer by Ms. Schnare. In Garcha,
the plaintiff was 48 at the time of the motor vehicle accident. His injuries
were to his neck, mid and low back, and shoulder. He was able to continue to
work as a machinist, but only because his employer substantially modified his
duties. He had 17 years of employment before him at the time he was injured. He
was awarded $70,000 in general damages. Similar distinctions apply in the case
of the plaintiff in Bergman who was awarded $75,000 in general damages.

[46]        
Having regard to the factors outlined in Stapley, and the facts
as set out above, I consider that an award of non‑pecuniary damages of
$55,000 is appropriate in this case.

b)       Past Loss of Income

[47]        
The plaintiff claims $7,614.81 by way of past wage loss. Subject to two provisos,
the defendant agrees that such an award is appropriate. The provisos
relate to the fact that the plaintiff has been paid for the shifts she did not
work. The question is whether she is obligated to repay her employer. The
second is whether the amount, if otherwise properly recoverable, should be the
net or gross amount she received and is required to repay.

[48]        
Ms. Miller testified that after the accident both she and the
plaintiff thought she would recover from her injuries reasonably quickly. Ms. Miller
knew that the plaintiff needed the income she would ordinarily have earned from
her employment. She agreed to pay the plaintiff, notwithstanding that she
missed shifts, on the “understanding” that the plaintiff would repay the clinic
following the resolution of her claim. I make three observations about this
evidence. First, it speaks volumes to the value the employer put on Mrs. Payne’s
services. Second, I am satisfied that Mrs. Payne is legally obliged to pay
back the money. Finally, I accept that Mrs. Payne feels obliged to repay
the money and will do so.

[49]        
It follows that I am satisfied that Mrs. Payne is entitled to
recover her past wage loss. As to the precise amount, I am satisfied it should
be the amount net of taxes that she would have had to pay had she been paid in
the ordinary course. If counsel are unable to agree on that matter they have
liberty to apply.

c)       Loss of Future Income Earning Capacity

[50]        
The plaintiff argues that an award of $50,000 is appropriate under this
head of damages. She calculates that based on the loss of two shifts per week
(the x‑ray shifts) for 2013, which amounts to approximately $25,986 (the
present value of $26,462), plus the loss of non-wage benefits of $3,897 (being
15 percent of her wage loss for 2013) less the 12 weeks she will be off work
while recovering from carpel tunnel surgery, for a total of $22,800 in 2013. In
addition she claims the loss of one day of work per week from the age of 65 to
age 70. This comes to $61,406 ($32.75 per hour x 7.5 hours per shift x 50
shifts per year x 5 years). The present value of $61,406 earned over five years
beginning in 2014 is approximately $50,000.

[51]        
The defendants argue that according to Dr. Travlos there is “every
reasonable expectation” that the plaintiff will be able to return to her former
employment duties once she recovers from her carpel tunnel surgery, and thus
she has not proven any loss of future income earning capacity.

[52]        
Garson J.A. considered the issue of entitlement to and quantification of
an award of damages for loss of future income earning capacity in Perren v.
Lalari, 2010 BCCA 140. At paragraph 32 she wrote:

[32]      A
plaintiff must always prove … that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown. The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok. The latter approach will
be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment.

[53]        
I am satisfied that Mrs. Payne has proven there is a real and
substantial possibility that she will, as a result of her injuries, suffer a
loss of income in the future. In fact, I think it is almost a certainty. Dr. Travlos’s
opinion is that while there is “every reasonable expectation that she should be
able to work through to the end of her working career”, she will only be able
to do that with difficulty and “may have to take more time off work and she may
be forced into early retirement”. He wrote that when she was 63 years old, and
on the assumption she would retire at age 65.

[54]        
The next issue is the appropriate method of valuing this loss. Given the
evidence, I am satisfied that the earnings approach is the most suitable method
to employ. I am not persuaded that the plaintiff’s analysis is entirely apt.
First, I think it likely that Mrs. Payne would have missed time from her
employment due to her carpel tunnel issues, over and above the time needed to
recover from the planned surgery. She is off work now on the basis that the
injury is disabling. I do not think the carpel tunnel injury would leave her
entirely unable to work until both wrists are surgically repaired; I think it
more likely than not that the condition would give rise to at least some
absences from work. Bearing in mind the implications of the motor vehicle
accident on the carpel tunnel condition, and the matter just noted, I think her
loss for 2013 is properly assessed at $15,000 inclusive of non-wage benefits.

[55]        
As to 2014 and beyond, I accept that Mrs. Payne would have accepted
additional shifts as and when available and as and when otherwise convenient to
her. I do not accept that she would have worked one day a week, nor do I accept
that she would have worked until age 70. I think it more reasonable to assess
her loss based on the following parameters. First, I think she would have
worked until age 68 or perhaps age 69. Second, I am not persuaded she would
have worked one day a week. The additional on-call shifts that the clinic
offers are offered to a list of employees. I accept that Mrs. Payne would
have some priority on that list, but the additional shifts would continue to be
allotted to others as well as her. Further, she has some residual ability to
work now, albeit doing bone density work. Finally, I accept that her condition
will improve. Although I am not as sanguine about that prospect as Dr. Travlos
is, I think she may well improve to the point where she is able to take x‑ray
shifts from time to time. Taking all of these factors into account, I assess
her damages at $20,000 ($32.75 per hour x 7.5 hours per shift x 20 shifts per
year x 3 years plus non-wage benefits of 15 percent less a discount for present
value).

[56]        
All in, I assess her loss of future income earning capacity at $35,000.

d)       Cost of Future Care

[57]        
The plaintiff claims $75,000 by way of cost of future care. The claim is
based on the report of Sheila Branscombe, an occupational therapist, who
calculated the cost of various services referred to by Dr. Travlos and Dr. Chan.
The items of future care which make up the claim are medications, kinesiology
assessment, an annual pool pass, physiotherapy, intramuscular stimulation
treatments, myofascial release, massage therapy, occupational therapy,
homemaking and self care support, and an equipment contingency fund. The most
significant components of the claim are the annual cost of home making services
and the pool pass. The homemaking services are estimated at $3,900 (on average)
a year. Assuming Mrs. Payne requires that level of service until the end
of her life, the present value of the claim is $57,461. A pool pass costs $368
a year, and the present value of that annual cost for the remainder of Mrs. Payne’s
anticipated life is $5,423.

[58]        
Relying on McLachlin J.’s decision in Milina v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.), additional reasons (1985), 63 B.C.L.R. 122 (S.C.),
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.) Adair J. expressed the legal test that
governs an award of future care costs in Schnare at paragraph 73 as
follows:

With respect to the legal
principles governing an award of costs of future care, a plaintiff is entitled
to be compensated for all expenditures that are reasonably necessary, on the
medical evidence, to promote her mental and physical health in the future. …Moreover,
the award must be moderate and fair to both parties:

[59]        
The defendants agree that, to the extent the claim is for the cost of
over-the-counter pain medication and anti-inflammatories, it is reasonable.
Further, they agree that some amount for a kinesiology assessment and follow-up
sessions is reasonable as is some allowance for physiotherapy, acupuncture, or
intramuscular stimulation but not all three. They argue that an award of $2,000
is all that is needed to compensate for these anticipated expenses.

[60]        
Dr. Travlos has made specific recommendations about the type of
focused exercises that Mrs. Payne should do in order to improve her
shoulder and thoracic spine. The program he recommends is one that will evolve
over time as Mrs. Payne recovers. It is a program that should be done
under the supervision of a kinesiologist. A kinesiology assessment is therefore
reasonable, as is the cost of ongoing kinesiological supervision. I consider
that such supervision will be necessary for more than just a year, but at a
reduced level. Using the cost estimates used by Robert Carson in his October
18, 2012 report, I am satisfied that $176 for the initial assessment and a
further $2,500 for ongoing supervision is warranted and reasonable. The claim
for over-the-counter medications at $414 is also reasonable.

[61]        
As to physiotherapy, I note that Mrs. Payne has had a long course
of such treatment to little effect, and, it seems, with almost no benefit more
recently. Dr. Travlos does not recommend further such treatment. Dr. Chan
does recommend further physiotherapy. Given this evidence, and in view of the
negligible benefit that is being derived from ongoing physiotherapy, I am not
satisfied that an award for future therapy is reasonable. In reaching this
conclusion, I have taken into account the likelihood that with a structured
exercise and stretching program Mrs. Payne will achieve some relief from
pain and improvement in function. I do find that intramuscular stimulation and
acupuncture will benefit Mrs. Payne, if taken in the manner that Dr. Travlos
recommends, namely five to eight sessions in conjunction with the exercise
regime he recommends. As I read his report, he uses the phrase “myofascial
release” not as a description of a specific therapy, but to describe a class of
therapies which include acupuncture and intramuscular release. An award of $800
for those therapies is appropriate in the circumstances of this case.

[62]        
There is no evidentiary basis for occupational therapy or an equipment contingency
fund (particularly given that no equipment is necessary).

[63]        
As to the claim for a pool pass, I accept that Mrs. Payne will get
and use such a pass. Swimming may benefit her shoulder, but swimming is
something she would have done in any event. She would have, as she did before
the accident, purchased a pool pass and thus the cost of such a pass is not an
expense that is recoverable.

[64]        
Mrs. Payne testified that she is unable to do some of the heavier
household activities she did prior to the accident. She said that she hired a
person to wash the walls in her home, because she could not reach up to do them
herself. Even with this assistance and the help of her sister, her house
remains much less clean than she ordinarily would keep it.

[65]        
In terms of yard work, she said she hired a student to do that. She
cannot do raking or fill flower or vegetable pots. She is only able to do a little
weeding, and cannot do any rototilling.

[66]        
I am satisfied that the plaintiff is entitled to compensation for the
cost of future housekeeping, including assistance with yard work. There are two
aspects of the evidence which affect the value of this component of the claim.
The first is that there is a likelihood that Mrs. Payne’s functional
ability will improve with the exercise program that Dr. Travlos has
recommended, and assuming the surgical repair of her carpel tunnel symptoms is
successful. I think it unlikely however that her condition will improve to the
point where she will be able to resume the degree of physical work she did in
her gardens and inside her home, that she did prior to the accident. On the
other hand, I think it likely she would have reduced the size of her gardens
over time in any event. As her physical abilities declined with advancing years,
and as the need for the bounty of a large garden declined, she would, I am
satisfied, have spent her time on other pursuits. I think an award based on
$3,500 for the next five years, and $2,000 for the period from five to fifteen
years from trial is appropriate. At the end of that period, Mrs. Payne
will be 79 years old. Mr. Payne will be 81. I think it more likely than
not that they will by then move from their home into smaller accommodation for
which they will require little homemaking assistance. It may be Mrs. Payne
will require some such assistance, but it may be that they will downsize
sooner.

[67]        
The Paynes live in a large home on a large property. The work that Mrs. Payne
did in maintaining the home and property was significant. While she will have the
ability to do much of the inside housework, some of that will remain beyond her
ability. Much more of the outside work will remain beyond her ability. I
estimate that she will require 10 hours a month in housekeeping assistance over
the next five years; and five hours per month for the ten years after that.
Such assistance is likely available for $20 an hour over the next five years,
and $25 an hour thereafter.

[68]        
Using Mr. Carson’s present value calculations, an award for
housekeeping costs over the next five years of $12,750 is reasonable (10 hours
per month, at $20 per hour or $2,400 per year, times $5,285 per $1,000). For
the subsequent ten years an award of $8,950 is appropriate (5 hours per month,
at $25 per hour, or $1,500 per year times $5,960 per $1,000). Rounded I find
that an award of $21,500 for this future care cost is reasonable.

[69]        
 Based on the foregoing, I consider that an award of $22,714 is
reasonable.

e)       Special Damages

[70]        
The parties have agreed on special damages in the sum of $4,800, which
are primarily made up of the cost of physiotherapy and other similar therapies
and the cost of over-the-counter medications that Mrs. Payne has consumed.

Summary and Costs

[71]        
In summary, the plaintiff is entitled to judgment in the following
amounts:

a)       general non‑pecuniary
damages of $55,000;

b)       past
loss of income of $7,614.81 (less the usual deductions including income taxes);

c)       loss of future income
earning capacity of $35,000;

d)       cost of future care of
$22,714; and

e)       special damages of $4,800.

[72]        
Finally, unless there are matters touching on the question of costs
about which I am unaware, the plaintiff is entitled to her costs at scale B. If
there are matters the parties wish to bring to my attention on the issue of
costs, they have liberty to apply.

"G.M.
Barrow J."
The Honourable Mr. Justice Barrow