IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130408

Docket: 43393

Registry:
Kamloops

Between:

Sarah Schenker

Plaintiff

And:

Lianne Margaret
Scott and Ivy Shackelly

Defendants

And:

Ivy
Shackelly

Third
Party

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

INTRODUCTION

[1]            
On July 17, 2009, the plaintiff, Sarah Schenker, was riding as a front
seat passenger in a van owned and operated by the defendant, Lianne Margaret
Scott. Ms. Scott and Ms. Schenker were travelling to Vancouver on the Trans
Canada Highway (the “Highway”), near Lytton, British Columbia, when Ms. Scott’s
vehicle left the Highway, went over an embankment to a road below, and then
rolled down another embankment, landing close to the railway tracks (the
“accident”).

[2]            
Ms. Schenker was seriously injured when she was ejected from the van
after it left the Highway onto the road below. She seeks damages for her
injuries.

[3]            
The defendant, Ms. Scott, claims that the accident occurred because a
vehicle owned and operated by the third party defendant, Ivy Shackelly, drove
onto the highway and into Ms. Scott’s lane of traffic, requiring Ms. Scott to
take evasive action by steering away from the Shackelly vehicle. This caused
her to lose control and, ultimately, was the reason her vehicle left the Highway.
Ms. Shackelly denies that she was in Ms. Scott’s lane of traffic when the
accident occurred.

ISSUES

[4]            
The issues before the court are:

       i.         
Who is liable for the accident?

      ii.         
Did Ms. Schenker contribute to her injuries by failing to wear a
seatbelt?;

   
iii.         
What are Ms. Schenker’s damages?

BEFORE THE ACCIDENT/THE LOCATION OF THE ACCIDENT

[5]            
In the summer of 2009, Ms. Scott and Ms. Schenker were tree planters.
The day before the accident was their last day as tree planters for that
season. On the morning of July 17, 2009, Ms. Scott and Ms. Schenker completed
their packing, readying themselves for their trip to Vancouver. Ms. Schenker
was heading to Vancouver to work with Nomad Kitchens and to see her
grandmother. Ms. Scott was going to take a vacation.

[6]            
At the time of the trial, Ms. Scott was age 25 and Ms. Schenker was age
23.

[7]            
Ms. Scott had purchased the 1988 Econoline van earlier in the year. It
was in good condition and in good mechanical order on the day of the accident. They
left the camp between 9 a.m. and 10 a.m. The van was “stuffed” with the young
women’s possessions. Ms. Scott was driving while Ms. Schenker sat in the front
passenger seat. Ms. Schenker was familiar with the van, as she had ridden in it
on several previous occasions. Ms. Scott was the driver throughout the trip,
including at the time of the accident.

[8]            
On their way, they stopped for breakfast at Williams Lake and gassed up
the van at either 100 Mile House or Clinton. At Cache Creek, they stopped for
ice cream, and from there they left Highway No. 16 and began on the Highway
headed for Vancouver. The balance of the trip up to just before the time of the
accident was uneventful. The weather was sunny, with temperatures in the mid-30s.
Although the stereo was playing as the van approached the accident scene, it
was quiet enough for Ms. Scott and Ms. Schenker to carry on a conversation.

[9]            
The Highway, where the accident occurred, is on the east side of the
Fraser River. There are four lanes: two going north and two going south. The
van was travelling south in the outside lane (slow lane). As the van proceeded
down the Highway, it passed a road that intersected with the Highway to its
right. This road is an extension of Main Street, which leads to and from
Lytton. It consists of two lanes, one in each direction, and it runs in a
north/south direction, but at a lower elevation than the Highway. At the top of
Main Street there is a stop sign. As Main Street travels south, it travels
upwards towards the right and to the stop sign. It was at this intersection and
beyond the stop sign that Ms. Shackelly was waiting in her greyish/blue 1997 Chevy
Lumina car to proceed onto the Highway in a northerly direction.

[10]        
On west side of the Highway is a short concrete barrier which turns at
the south end of the intersection proceeding down Main Street to Lytton. Several
feet from the barrier is a white line: this creates a shoulder on the Highway
between the barrier and the white line. This white line was referred to at this
trial as the “fog line”.

[11]        
As already stated, at the top of Main Street and before the entrance to
the Highway is a stop sign. As vehicles travel from the stop sign, there is an
apron on which the vehicles can drive to approach the Highway. On the apron is
a scalene triangle painted on the Highway. There are lines painted within the
triangle. The purpose of this triangle appears to be to separate those vehicles
turning onto Main Street from the Highway and those vehicles coming from Main
Street into the Highway. The fog line does not proceed through the
intersection. After the intersection, the shoulder continues; as does the
painted fog line, but without the barriers.

[12]        
After the intersection, and on the same side of the intersection, is a widened
gravel rest area followed by an embankment. Below the embankment is Main
Street. From Main Street is another embankment that leads to the railway tracks.
It is near the railway tracks that the van finally landed.

[13]        
On the east side of the Highway there are two lanes that travel north.
There is a shoulder and a fog line. Beside the shoulder and fog line there is a
steep hill, some of which is covered by trees. Towards the bottom of the hill are
hydro lines.

[14]        
The Highway is relatively straight and flat up to the site of the
accident from both the north and south direction.

[15]        
Almost directly across from the intersection on the east side of the
Highway is a semicircular dirt road.

[16]        
At the time of the accident and in the area of the accident, there was
no other traffic other than the van travelling south, Ms. Shackelly at the
intersection, and Martin John Romphf driving his burgundy-coloured Kenworth
highway truck with a Super-B train and trailer.

[17]        
At this trial, Ms. Scott, Ms. Schenker, Ms. Shackelly, and Mr. Romphf
gave evidence as to what they saw just before, during, and after the accident.

EVIDENCE RELATING TO LIABILITY

Ms. Schenker’s Testimony

[18]        
Ms. Schenker was aged 20 at the time of the accident.

[19]        
Ms. Schenker testified that the accident occurred at about 3 p.m. Just
before the accident, the van rounded a curve travelling in the slow lane. The
highway ahead of the van has a slight decline.

[20]        
Ms. Schenker testified that she was slouched in the passenger seat with her
feet hanging out of the open window. She was not wearing a seatbelt. She did
not observe any vehicles behind or approaching the van.

[21]        
She observed a greyish/blue car at the stop sign of the Lytton
intersection. It did not come to a full stop (a two-second stop) and it
proceeded towards the Highway. She could not recall whether she observed the
car before it reached the stop sign. The van was almost at the intersection
when the car accelerated into the van’s lane of traffic, the slow lane, and
stopped. Ms. Schenker heard Ms. Scott yell “shit”. Ms. Schenker yelled “car”
and pointed towards the car in the van’s lane. She estimated that the car and
the van were about two car lengths apart when the car stopped in the slow lane
of traffic.

[22]        
Ms. Schenker testified that Ms. Scott, swerved around the car and back
into the slow lane, after which time Ms. Scott then lost control. She testified
that the van did not go into the oncoming northbound lane. Rather, as the van
was travelling around the car, Ms. Scott attempted to straighten it out. This
caused the back of the van to rotate to the left; the van then veered to the
right and ended at the gravel pull-out. Ms. Schenker testified that as this was
happening, she thought she was going to die.

[23]        
The van then became airborne as if shot off a cliff. She recalls
clutching the arm rest of the van and closing her eyes. Her next memory is
lying on the roadway – Main Street. During this time, she did not know of Ms.
Scott’s whereabouts. She recalls being taken to the Lytton Hospital and recalls
some of the events that occurred at the hospital.

[24]        
Ms. Schenker testified that had Ms. Scott not swerved to the left, they
would have hit the greyish/blue car. She believed that the driver of the car
was undecided whether to stop fully before entering the Highway as it
approached from Main Street, and that the driver saw the van at the last
moment.

[25]        
Ms. Schenker was unable to recall whether Ms. Scott was slowly drifting
towards the fast lane as the van approached the intersection.

Ms. Scott’s Testimony

[26]        
At the time of the accident, Ms. Scott was aged 22. At the time of
trial, she worked as a resource technician. She lives part-time in Smithers and
Bell 2. The latter is partway between Smithers and the Yukon. Bell 2 is where
Ms. Scott works in a bush camp. She and Ms. Schenker are partners, and have
been partners since the summer of 2011. At the time of trial, they lived
together in Smithers.

[27]        
In the summer of 2009, it was Ms. Scott’s first summer tree planting.

[28]        
Up to the area of the accident, they had been driving on the west side
of the Fraser Canyon. In that particular area the road was curvy. Ms. Scott
rounded a corner on the Highway and there was a straight stretch and decline
before her. As Ms. Scott turned the corner, or shortly after turning the
corner, she noticed a greyish/blue car at the stop sign. Although she observed
the car stopped there, she could not say whether it was a two-second stop. The
car started and continued to inch forward. She concluded that the car was going
to make a left-hand turn in front of her. As she observed this car, Ms. Scott
wondered why the car did not proceed, as “it had tons of time and space to make
its turn.” As Ms. Scott drove the van down the Highway, the car continued to
inch forward. Ms. Scott moved over to the left side of her lane because she “wasn’t
sure what it [the car] was doing.” She took her foot off the gas, but the van
did not slow down because, as she said, that part of the Highway was on a
slight decline.

[29]        
Ms. Scott said she wondered whether the driver of the car was on a cell
phone or distracted. She formed the impression that the driver of the
greyish/blue car was unconfident because Ms. Shackelly did not immediately come
up to the intersection and make a left hand turn when there was ample time to
do so.

[30]        
Ms. Scott testified that she believed that the car was pulling up to the
highway and would stay there until she passed in the van, at which time the car
would make its left-hand turn.

[31]        
Just as Ms. Scott was to pass where the greyish/blue car was located,
“it [the car] pulled directly in front of me into my lane of traffic at which
point I swerved very hard to the left.” Ms. Scott yelled “shit,” and Ms.
Schenker yelled “car” and pointed at the car. After swerving to the left and
shouting, Ms. Scott testified that she:

… then immediately recognized
there was an oncoming vehicle and having swerved to the left, my vehicle was
pointed across the other lanes of traffic so I immediately hammered — swerved
back to the right at which point I tried to recorrect that because that was
pointing my vehicle back across my lanes of traffic. However, the vehicle went
into a bit of a spin and I lost control of it and we hit a patch of gravel at
which point I could no longer get control of the vehicle.

[32]        
Ms. Scott testified that her van was 15 metres away from the car when it
pulled a few metres into her lane of traffic, and that the car did not make it
into the fast lane. Ms. Scott believed that her van crossed the double solid
line into the oncoming lane when she swerved away from Ms. Shackelly’s vehicle.

[33]        
Ms. Scott testified that her van went into a clockwise spin and hit a
patch of gravel, at which point she lost control of the vehicle. Prior to this,
she had been applying the brakes and trying to slow the van down and correct
her steering. The van, now moving sideways, went over an embankment. Ms. Scott
saw only bushes before she shut her eyes. She then felt the vehicle roll down
“some sort of cliff”. It finally came to a stop on its passenger side.

[34]        
Ms. Scott, who was wearing a seatbelt, was “in the air” as a result of
the van being on its side. Nevertheless, she was able to unbuckle her seatbelt
and leave the vehicle. Before doing so, she realized that Ms. Schenker was not
in the vehicle. Upon exiting the van, people came to her assistance and she
walked up to the main road. She observed Ms. Schenker on the road receiving
assistance from ambulance attendants.

[35]        
Ms. Scott was taken to the same hospital as Ms. Schenker, where she had
a conversation with both Ms. Schenker and Constable Morine. She, as well as Ms.
Schenker, were then taken to Royal Inland Hospital (“RIH”) in Kamloops, where
both she and Ms. Schenker were hospitalized.

[36]        
Ms. Scott broke the bone in her upper arm, for which she received
initial treatment at RIH and further treatment in Ontario.

Ms. Shackelly’s Testimony

[37]        
Ms. Shackelly was born on June 29, 1953 in Merritt. She has lived in
Merritt all her life. She is the owner and operator of a grey 1997 Chevrolet
Lumina – the same vehicle that was described by Ms. Schenker and Ms. Scott as
greyish/blue in colour. She was driving that vehicle on July 17, 2009 to her
home in Merritt. She was at the Lytton turn-off when the van went off the
Highway.

[38]        
Ms. Shackelly had owned her vehicle since February 2009. It was
purchased so that she could drive herself to and from work. At the time of the
accident, she was working for the Lytton Indian Band providing care for the
elderly and disabled. Her hours of work were between 8:30 a.m. and 4:30 p.m. On
each day of work she would pick up a car allocated to her by the Band and drive
to the various people’s residences to whom she provided care. She would return
to her home in Merritt every second day. Since February 2008, when she started
her job, Ms. Shackelly has followed the same route three times a week in
travelling to and from her job in Lytton and her home in Merritt. Accordingly,
she was familiar with the Lytton turn-off. It was her habit to turn left from
the Lytton turn-off onto the Highway, travel towards Spences Bridge, and then
on to Merritt.

[39]        
Ms. Shackelly testified that the accident happened at 4:45 p.m. It was a
sunny day, and the sun was behind her. She testified that she was not talking
on her cell phone as she sat at the intersection, nor was she eating or
drinking. She stated that there is no cell service in that area in any event
and that she was not distracted by anything else. She testified that from the
stop sign she could see southbound traffic to her left on the Highway, but not
the northbound traffic to her right. In order to get a better view of the
northbound traffic, she was required to drive towards the “imaginary fog line” to
determine when she could make her left hand turn onto the Highway in safety.
This is what she did just before the accident occurred.

[40]        
There was no fog line at the intersection. In referring to the fog line
as “imaginary,” she was referring to an extension of the fog line on each side
of the Lytton turn-off.

[41]        
Ms. Shackelly said that her car was located at the south end of the
triangle. Her car was parked behind the gap – the imaginary fog line – and was
angled slightly to the right. She located her car on photograph #43 of exhibit
1 by drawing an oblong showing where her car was located just before the
accident. She testified that she could see vehicles coming around the corner travelling
southbound. When she got to the fog line, she could see a red truck travelling
north towards Spences Bridge. She testified that there was sufficient time for
her to make her left hand turn before the van and truck passed her.

[42]        
While Ms. Shackelly was at the imaginary fog line, she stated there was
no vehicle behind her. She stated that the van was in the slow lane and, as it
passed her, it swerved and then swerved again. It drove into the gravel and
went over the bank and down the hill in a “ball of dust.”

[43]        
Ms. Shackelly saw the driver of the red truck stop on the opposite side
of the Highway to Ms. Shackelly. As a result of looking at one of the
photographs in evidence, Ms. Shackelly was able to show where the truck driver
pulled over, which was the semicircular dirt road slightly ahead of her. She
testified that the truck driver got out of his truck and walked passed her, so
close that she could have reached out and touched him. She then parked her
vehicle, or drove up to the rest area, and then came back to the intersection
and parked her vehicle. She walked down to Main Street. The truck driver was
there with a lady on the road. She spoke to the lady on the road and told her
to lay still, as it was better for her. She asked Ms. Schenker her name.

[44]        
Ms. Shackelly remained on Main Street. She identified herself to
Constable Morine, a RCMP officer, and told him that she saw the accident.

[45]        
On July 21, 2009, at the Lytton Village Office, Ms. Shackelly gave
Constable Morine a recorded statement relating to the accident. That statement
consisted of questions and answers which were transcribed into writing. This
statement was entered as exhibit 4 at the trial.

Martin Romphf’s Testimony

[46]        
On the date of the accident, Martin Romphf was driving his burgundy
Kenworth highway truck, hauling its Super-B train and trailer north on the
Highway near the Lytton turn-off at about 4:30 p.m.

[47]        
At the time of trial, Mr. Romphf had 20 years of experience as a truck
driver. At the time of the accident, Mr. Romphf travelled on the Highway about
three times every two weeks, from Smithers to Vancouver and back to Smithers.
He travelled this route off and on for the last three years.

[48]        
Mr. Romphf testified that on the day and in the vicinity of the
accident, the highway surface was “fresh pavement”. There were four lanes: two
north and two south. He stated that there is an access road to the north end of
Lillooet. He stated that in the area where the accident occurred, the Highway
is straight with a slight bend at the north end of the Lytton turn-off. The temperature
was 36 degrees Celsius, the skies were clear, the road was dry, and the
visibility was good.

[49]        
He was travelling north on the Highway when he observed the accident
involving Ms. Scott’s van. Mr. Romphf testified that the accident occurred near
the north entrance to Lytton on the west side of the Highway. He testified that
the only vehicles present on that part of the Highway was the van and his
truck.

[50]        
Mr. Romphf stated that the van was about 2000 yards away from him when
he first noticed it. The van was on the north side of the Lytton turn-off and
was travelling southbound in the far lane. He testified that the van was closer
to the Lytton turn-off than his truck was. Mr. Romphf testified that when he
first noticed the van, it was travelling “normally”. Then he noticed the van:

… started to gradually or
slowly cross the — into the fast lane southbound. Not completely but just
gradually and partially. And as it was going by the Lytton turnoff and it was
pretty much just about south of the turnoff and not completely in the fast lane
heading south, then the vehicle made a sharp veering steering to the right and
put the vehicle, the van into a skid almost instantly.

[51]        
It appeared to Mr. Romphf that the driver had briefly dozed off and then
woke up. Counsel asked the following question and Mr. Romphf gave the following
answer:

Q         Did you observe anything coming out onto the
road in the vicinity of where that sharp turn was to the right?

A          No. I — I never
saw another vehicle affecting the — the van’s progression down the highway.

[52]        
Mr. Romphf described the van continuing to skid with the back end of the
van going around. It went right through the pull out (the rest area) sideways,
continuing to spin around 180 degrees, in a clockwise fashion with the back end
leading. He said that as it slid into the pullout the van kicked up gravel and
disappeared in a “gravel dust wall.”

[53]        
Mr. Romphf testified that when the van went out of control, it did not
pose a hazard to him. He stated that the van did not cross over any of the
northbound lanes. When the van went out of control into the gravel area, the
van and Mr. Romphf’s truck were not adjacent.

[54]        
Mr. Romphf pulled his truck into the semicircular dirt road and went on
foot down through the intersection to Main Street where he observed a lady
trying to get up. He tried comforting her and shielded her from the hot sun
until the paramedics arrived.

[55]        
Mr. Romphf did not see Ms. Shackelly sitting in her grey vehicle at the
Lytton turn-off.

Gerald Sdoutz’ Expert Report

[56]        
Ms. Scott tendered the expert evidence of Gerald Sdoutz, a professional
mechanical engineer, who has been investigating and reconstructing motor
vehicle collisions since 1996. His qualifications were not in dispute. He did
not attend the trial for cross-examination.

[57]        
In her written submissions, Ms. Shackelly raised several objections to
Mr. Sdoutz’ report:

        
i.         
that he relied on an examination and survey conducted by two other
people employed by Forensic Dynamics Inc. and PC Crash; and

       ii.         
that he does not state whether he performed that analysis.

[58]        
Firstly, any objections to the admissibility of the report should have
been made prior to Mr. Sdoutz’ report being tendered as evidence. Secondly, the
two people from Forensic Dynamics Inc. were named in the report. I do not
accede to Ms. Shackelly’s objections.

[59]        
There is no dispute that there were skid marks on the Highway and that
those skid marks were made by the van. Those are the skid marks that Mr. Sdoutz
analyzed.

[60]        
 In order to prepare his report, Mr. Sdoutz relied on photographs taken
by other people, the contents of the RCMP file, and two other individuals who
examined and produced a survey of the scene of the accident. In addition, he
used a photogrammetry software program known as PhotoModeler Pro-Measuring and
Modelling the Real World, Version 5.1.0.SL. It was used to establish the
location and shape of the tire marks made by the van on the road surface. Mr. Sdoutz
stated that this software program, with the use of the scene photographs, could
provide accurate measurements:

The accuracy of the photogrammetry project was enhanced by
incorporating several “known” coordinates based on the surveyed scene measurements
(i.e. the positions of the dashed lines).

The evidence was overlaid with
surveyed measurements of the highway on the scale diagram. The diagrams found
in APPENDIX D show the PhotoModeled tire mark evidence on the asphalt surface.
The tire marks commenced in the southbound fast lane approximately 1.6 metres
west of Highway 1’s centerline and approximately 8 metres south of the
centerline governing Main Street.

[61]        
Mr. Sdoutz used PC Crash 8.1 – Accident Simulation Software (“PC Crash”).
Its purpose was to simulate the accident so as to provide information on how
the van travelled on the Highway before veering into the rest area and going
over the first embankment. Mr. Sdoutz writes:

These tire marks had the
characteristics of clockwise yaw marks caused from the Ford van tire’s sliding
on the asphalt surface while the vehicle rotated clockwise about its center of
mass.

[62]        
Using PC Crash simulations, Mr. Sdoutz positioned the van driven by Ms.
Scott in the southbound fast lane. Using reported friction co-efficient for dry
asphalt, the weight of the van and its occupants and cargo, Mr. Sdoutz came to
some conclusions based on the PC Crash simulations for the time before the van left
the asphalt. Specifically, Mr. Sdoutz concluded that the van rotated on its
axis approximately 60 degrees clockwise, and that it was travelling at a speed
between 105 and 110 kilometres per hour at the start of the yaw marks. Had the
van’s brakes been applied at their maximum, the van would have travelled in a
southerly fashion and not in a curve as it did. Overall, Mr. Sdoutz concluded:

Therefore, Ms. Scott likely lost
control of the van by steering hard to [the] right. She was not applying her
vehicle’s brakes maximally during the yaw.

[63]        
In explaining how Ms. Scott managed to send the van into an uncontrolled
spin (the “clockwise yaw”), Mr. Sdoutz stated that Ms. Scott would have to
initially steer sharply to the left with what he called a “flick steer” (which
he says is similar to an abrupt lane change), followed by a hard corrective
steer to the right.

[64]        
Mr. Sdoutz had PC Crash do a reverse simulation of the van without the
left swerve. It was assumed that Ms. Scott only steered to the right and did
not apply her brakes. The reverse simulation found:

…that travelling at 105 to 110
km/h a steering wheel input of 49° to 65° to the left resulted in a swerve from
the curb lane which aligned the van properly with the start of the yaw marks in
the fast lane. From the literature (5), a steering input of 56° is consistent
with an abrupt lane change manoeuvre.

[65]        
The reverse simulation also found that the left swerve occurred about 46
metres north of the centreline of Main Street, a distance which the van would
cover in 1.5 seconds. Mr. Sdoutz concluded that when Ms. Scott saw Ms.
Shackelly’s car as a hazard, she swerved and then, essentially, over corrected:

Ms. Scott’s actions are
consistent with her swerving sharply into the fast lane to avoid colliding with
Ms. Shackelly’s sedan which Ms. Scott perceived to be encroaching into the
southbound lanes of Highway 1, and then swerving her van back to the right to
avoid entering the oncoming lanes of the highway.

POSITIONS OF THE PARTIES

Plaintiff’s Position

[66]        
The plaintiff’s position is that liability for the accident is between
the defendants, Ms. Scott and Ms. Shackelly. Further, pursuant to s. 1(2) of
the Negligence Act, R.S.B.C. 1996, c. 333 and its amendments, if it is
not possible to establish degrees of fault, then liability should be
apportioned equally.

Defendant Lianne Scott’s Position

[67]        
Ms. Scott alleges that this accident happened through no fault of hers.
She raises the defence of agony of collision, or agony of the moment. She
alleges that Ms. Shackelly travelled into a lane of traffic in which she was
travelling, requiring her to take evasive action.

[68]        
Alternatively, Ms. Scott argues that it was negligence on the part of
Ms. Shackelly not to have remained well back of the “imaginary fog line”.

[69]        
In the further alternative, Ms. Scott argues that in the event there is
negligence on her part, the apportionment of fault between her and Ms.
Shackelly should be 25 percent to Ms. Scott and 75 percent to Ms. Shackelly.

Third Party Defendant Ivy Shackelly’s Position

[70]        
Ms. Shackelly alleges that this is a single-vehicle accident that was
caused by the negligence of Ms. Scott. She argues that none of her actions
caused Ms. Scott’s van to leave the road. Ms. Shackelly argues that Ms. Scott:

…has not provided an explanation
that ought to be accepted, thereby, transferring liability from the Defendant,
Scott to Ms. Shackelly [submissions of Shackelly, para. 5].

ANALYSIS – LIABILITY

[71]        
Ms. Schenker bears the burden of proving that the injuries she sustained
as a passenger in a car driven by Ms. Scott on July 17, 2009 were as a result
of the negligence of Ms. Scott or Ms. Shackelly, or both of them.

[72]        
The accident occurred between 4:30 and 4:45 p.m. on the Highway near the
Lytton turn-off. I find that it was a hot summer day, and that the Highway was
newly laid asphalt and was dry. The accident occurred in an area where there
were four lanes, two travelling south and two travelling north. Ms. Scott was
driving a large, older van. It had no mechanical problems. At the time of the
accident, Ms. Scott was travelling at between 105 and 110 kilometres per hour
in the slow lane southbound on the Highway. The speed limit in the area where
the accident occurred is 100 kilometres per hour. Ms. Scott stated that as she
came around the corner, she observed Ms. Shackelly stopped at a stop sign
located at the top of Main Street. The Highway, after Ms. Scott turned the
corner and in the area of the accident, was straight with a slight decline.

[73]        
I find that Ms. Shackelly stopped at the stop sign and then activated
her turn signal. She intended to drive towards the Highway and make a left hand
turn onto it. Ms. Scott testified that she was aware of Ms. Shackelly’s
intention almost immediately.

[74]        
Ms. Scott was of the opinion that Ms. Shackelly was an unconfident
driver. This is based on Ms. Scott’s opinion that Ms. Shackelly had plenty of
time to leave the stop sign, drive toward the Highway, and complete her left
hand turn. Ms. Shackelly did not do this. Ms. Shackelly explained, that while
there was time to make her turn, she did not do this because of her experience
in an accident when she was a passenger a year earlier.

[75]        
It seems strange that right after Ms. Scott formed the opinion that she
was observing an unconfident driver who may have been on their cell phone or
was distracted, she would not slow down and place her van in a position so as
to take defensive or evasive action. She did not react other than as follows:

I shifted sort of to the left
side of my lane and I believe I took my foot off the gas a little bit, however,
it was a downgrade so it didn’t slow it down, the van too much and then just as
we were about to pass it [greyish blue van] it pulled back in front of me into
my lane of traffic at which point I swerved hard to the left.

[76]        
I find that from the stop sign, Ms. Shackelly was able to see the van
travelling on the Highway to her left. She believed that there were other
vehicles following the van. There is no evidence to support this belief. I find
that from the stop sign she could not see the traffic travelling northbound on
her right. Therefore, it was necessary for Ms. Shackelly to leave the stop sign
and drive towards the Highway. She described her driving as “creeping toward”
the Highway; Ms. Scott described the Shackelly vehicle as “inching forward”. It
was then that Ms. Shackelly saw Mr. Romphf driving his truck northbound. I do
not accept Ms. Schenker’s evidence that Ms. Shackelly was stutter-stopping,
that is, alternating her foot on the gas and then the brake.

[77]        
I find that there was nothing distracting Ms. Shackelly from focussing
on anything other than her driving and eventually entering the Highway. Ms.
Shackelly sat at the side of the Highway in an area shown by her on photograph
#43. I find that she did not at any time enter the Highway as described by
either Ms. Scott or Ms. Schenker. Nor do I find that Ms. Shackelly’s actions,
while waiting at the intersection at the Lytton turn-off could cause anyone to
think that she was going to enter the Highway in the face of Ms. Scott’s vehicle.

[78]        
I find that, at the hospital, Ms. Scott told Constable Morine that she
thought Ms. Shackelly would not stop. Ms. Scott testified that she remembers,
at the time of making this statement, thinking that she did not state this
accurately. She testified that when Constable Morine talked to her, he appeared
to have already determined how the accident happened. She testified that about
a week after the accident, while she and her mother were attending the police
station to pick up some of her belongings, she attempted to correct her
statement and tell Constable Morine what happened. Constable Morine denies that
Ms. Scott attempted to do this. I find that this did not happen. I find that
Ms. Scott made this statement to Constable Morine as he testified, and that the
statement she made to Constable Morine was true. I find that there was no basis
for Ms. Scott’s belief.

[79]        
Both Ms. Scott and Ms. Shackelly had the benefit of knowing the evidence
of other witnesses before trial. This was evident in Ms. Scott’s testimony. She
stated that just before the accident, she shifted her lane a little to the left;
while not leaving the lane, she took her foot off the gas, but her vehicle did
not slow down because she was going downhill. She then immediately recognized
that there was an oncoming driver in the northbound lane, which led her to
steer hard back into the slow lane. This evidence is an attempt to explain some
of the movements of Ms. Shackelly’s vehicle, Mr. Romphf’s evidence, and part of
Mr. Sdoutz’ opinion that Ms. Scott “flick steered” to the left when Ms.
Shackelly was perceived as a danger.

[80]        
Ms. Schenker testified that she and Ms. Scott did not talk about the
accident. Ms. Scott testified that they did. I found that Ms. Schenker and Ms.
Scott’s evidence was similar. I find that their evidence is unlikely to have
been similar as Ms. Scott was the driver with the responsibilities of a driver,
while Ms. Schenker was slouched in her seat with her legs and feet out the
window. I also find that Ms. Schenker could not have determined that Ms.
Shackelly did not do a two-second stop, as she did not see Ms. Shackelly travel
to the stop sign. In any event, there was no evidence before me addressing the
significance of a two-second stop.

[81]        
Ms. Scott questioned Ms. Shackelly’s credibility. Although Ms. Shackelly
is not sophisticated, her evidence is straightforward and truthful. When she
was presented with contradictory evidence, she acknowledged the contradiction.

[82]        
Ms. Scott relies on a statement that Ms. Shackelly gave Constable Morine
within days of the accident. Ms. Scott alleges that Ms. Shackelly stated that
she was stopped at the stop sign when the van went by, and that she did not say
that she was stopped at the fog line. Constable Morine, in the statement, did
not get a specific location where Ms. Shackelly was stopped when the van went
by. In answer to questions put to her, she gave the following answers:

S:         Yes, I am at the stop sign right here.

…

S:         and then she comes flying by me and then she
whips over that way and then she came back this way

…

S:         and then she veered back towards me and then
she went around like this…

(Exhibit 4, p. 4)

[83]        
Based on the answers that she gave at trial, it is clear that she
gesticulated as she spoke to Constable Morine. Constable Morine did not ask her
whether she drove her vehicle toward the Highway after stopping at the stop
sign.

[84]        
Ms. Scott argues that there was no fog line where Ms. Shackelly was stopped
in her car. That is correct. During the trial, however, it became the
“imaginary fog line” because it became very clear from the photographs of the
accident that one could easily imagine the location of the fog line. This is
done by drawing a line from the fog line on the north side of the Lytton
turn-off, toward the top of the triangle and through the opening, connecting it
with the fog line on the south side of the Lytton turn-off. This evidence of
the “imaginary fog line” of Ms. Shackelly was well understood and arose during
the trial.

[85]        
Ms. Scott alleges that Ms. Shackelly’s credibility again came into
question when Ms. Shackelly gave what appeared to be two contradictory
statements at her examination for discovery about what she did when the van
went over the embankment (at questions and answers 129, 130, 131, 140, and 141):

Q         Tell me what you saw about the accident, the
details of it?

A          I seen the van coming down the road
(indicating), and then I was stopped at my, on the side of the road, and then I
see her, she came like the double lane, she came on the slow lane, and then she
went back and she went across the yellow line, and then she turned back to the
slow lane and then she went over the bank and then I didn’t see nothing because
there was a big cloud of dust after.

Q         And then what did you do after that?

A          I just sat there and didn’t move for a while
because all this happened in front of me, and then I looked back on the highway
and then I seen the truck driver stop on the other side of the road and he ran
across the road and he went down.

Q         And so then what did you do?

A          I backed up and then I went down to see if
the truck driver needed any assistance and he said he was okay, I don’t know
who he was holding, and then a bunch of people came. And then I don’t recall
what was said because everybody started talking.

…

Q         And do you remember telling the police officer
that as you were sitting there by the entrance to the Trans-Canada Highway you
did not know how you were going to be able to turn around so you drove down to
the dirt resting area where you had seen the car leave the road, do you
remember telling him that?

A          Yes, now I do, yeah.

Q         Is that, in fact, what you did?

A          Yes, because I
tried to back up, but then I just drove down and turned around and I came back
and I parked right by them, on the Lytton highway again.

[86]        
At the trial, Ms. Shackelly stated that after the van disappeared in a
ball of dust, she backed up and went down the road.

[87]        
At the trial, Ms. Shackelly states that the van was in the slow lane, when
it crossed into the fast lane and then back into the slow lane, losing control.
In her examination for discovery, she stated (at questions and answers 184-188):

Q         No, before any of that happened. Let me back
up. When you look to the left and you see this vehicle approaching and the
first one is this van that went off the road, can you remember what lane it was
in, whether it was the centre fast lane or right lane, there is two lanes
approaching, right?

A          Yes.

Q         Can you remember which lane that vehicle was
in?

A          The one close to the yellow line (indicating)
and then it came in this slower lane.

Q         So when you say if we look at photograph
number 31, you are saying it’s closest to the middle of the highway?

A          Yes, it was back there (indicating) then it
moved over and then I seen her swerve back over to the other lane.

Q         So when you first saw it, it was in [the]
closest to the centre lane of the highway, and then it moved into the, what we
would call the slow lane or the right hand lane?

A          Yes.

Q         And then at some point it goes back to the
centre lane again and then loses control and goes off the road?

A          Yes.

[88]        
She acknowledged that her evidence was different in that she first saw
the van in the fast lane, saw it move into the slow lane, and then saw it veer
into the fast lane and lose control. It was pointed out to Ms. Shackelly that
these statements appear contradictory to question and answer in 129. When she
was asked which one she preferred, her answer was question and answer 129. These
contradictions relate to what the Scott vehicle was doing, not to what Ms.
Shackelly’s vehicle was doing.

[89]        
Ms. Scott and Ms. Schenker stated that the Shackelly vehicle was in
their lane of traffic, the slow lane within 15 metres or two car lengths, and
that Ms. Scott drove the van around Ms. Shackelly and then turned a sharp right
hand turn into the slow lane, losing control. I find that Ms. Shackelly was not
in Ms. Scott’s lane of traffic. I find that Ms. Shackelly was at the entrance
of the Highway behind the imaginary fog line, waiting to turn left on the
Highway when the traffic had cleared.

[90]        
Mr. Romphf was observed by Ms. Shackelly as he was travelling
northbound. He was not seen by Ms. Schenker. Ms. Scott gave the following
testimony on what occurred after she swerved hard to the left:

… and then immediately
recognized there was an oncoming vehicle and, having swerved to the left, my
vehicle was pointed across the other lines of traffic so I immediately hammered
swerved back to the right at which point I tried to re-correct that because
that was pointing my vehicle back across my lanes of traffic, however the
vehicle went into a bit of spin and I lost control and we hit a patch of gravel
at which point I could no longer get control of the vehicle.

This contradicts the evidence of
Ms. Schenker and Mr. Romphf that the van did not go into the oncoming
northbound lane of traffic.

[91]        
I find that Ms. Scott did not see Mr. Romphf’s truck, although she may
have had a sense of the presence of a vehicle travelling northbound just before
she moved into the fast lane travelling southbound, or during the time when the
vehicle was skidding.

[92]        
Again, Mr. Romphf was observed by Ms. Shackelly as he was travelling
northbound. Romphf’s truck and the Scott vehicle did not reach the Lytton
turn-off at the same time. I accept Mr. Romphf’s observations:

Q         Sorry. When you first noticed the van, what
did [you] notice about it, if anything? What drew your attention to it?

A          Well, it — yeah, what drew my attention to
it was because it was the only other vehicle on the road primarily. And it was
travelling in the far right lane, southbound and it seemed pretty normal
initially.

Q         And then what happened?

A          Then it started to gradually or slowly cross
the — into the fast lane southbound. Not completely but just gradually and
partially. And as it was going by the Lytton turnoff and it was pretty much
just about south of the turnoff and not completely in the fast lane heading
south, then the vehicle made a sharp veering steering to the right and put the
vehicle, the van into a skid almost instantly.

Q         Did you observe anything coming out onto the
road in the vicinity of where that sharp turn was to the right?

A          No, I — I never saw another vehicle
affecting the — the van’s progression down the highway.

Q         And what happened to the van? What did you
see?

A          Well, then I saw
it continue to do its skid as the back end of the van started coming around and
then it started going off to the right through this pullout that was on the
side of the road. They went through there sideways and then continuing to spin
around. And then they disappeared in the dust because it was very hot, very dry
and that gravel was loose and they disappeared. And I knew that they were in
trouble.

[93]        
Ms. Scott argues that Mr. Romphf’s evidence that he saw no other vehicle
affecting the van’s progression is an opinion. Respectfully, it is not. A
careful reading of his answer shows that he did not observe anything coming out
of or going into the southbound lanes.

[94]        
Mr. Romphf did not see Ms. Shackelly waiting to turn onto the Highway. In
explaining why he did not see her car, Mr. Romphf said that he was focussed on
the van and on helping Ms. Schenker when he stopped his truck. By his own
account, he was in some shock and was very concerned for Ms. Schenker’s
well-being:

A          Okay. I’ll tell
you, when — accidents are not — I’m not an ambulance attendant, I’m not a
person that does well with accidents. So when I saw that girl laying there I
think I just kind of put my binders — blinders on and really, it was almost
overwhelming for me. And so I could — I could possibly remember a car there
when I was running by but it’s a very fleeting or vague memory.

[95]        
There is no doubt, based on the evidence and Mr. Sdoutz’ opinion, that
the van lost control when it made a hard right turn from the fast lane into the
slow lane of the Highway.

[96]        
Mr. Sdoutz’ opinion as to the sharp right turn made by Ms. Scott is not
in dispute. Nor is it in dispute that Ms. Scott moved left into the fast lane
before making the sharp right hand turn before the van lost control. However,
the manner in which Ms. Scott moved into and out of the fast lane is in
dispute. Mr. Sdoutz assumes that Ms. Scott made an abrupt lane change to the
left lane (using a “flick-steer”) before making the abrupt right hand change or
swerve into the slow lane of traffic. This is in conflict with Mr. Romphf’s
observations:

Then it started to gradually or
slowly cross the — into the fast lane southbound. Not completely but just
gradually and partially. And as it was going by the Lytton turnoff and it was
pretty much just about south of the turnoff and not completely in the fast lane
heading south, then the vehicle made a sharp veering steering to the right and
put the vehicle, the van into a skid almost instantly.

[97]        
Furthermore, Ms. Schenker’s own account confirms Mr. Romphf’s evidence
that the van’s lane change to the left was a gradual and partial turn into the
fast lane, not a sharp one.

[98]        
At her examination for discovery, Ms. Schenker was asked these questions
and gave these answers:

Q         When did she lose control of the van?

A          When she actually swerved around the car,
like there was a bit of a (indicating) drift beforehand.

Q         What [do] you mean by a bit of a drift?

A          Well the lady
came up to the stop sign and stuttered, she didn’t completely stop, so I think
there was sort of, is that woman going to stop? I am going to slowly get out of
her way. And then as we were like right face-to-face with her she came out in
front of us and then Lianne swerved hard.

[99]        
I do not consider that Mr. Sdoutz can say how Ms. Scott executed her
left lane change as a result of examining the physical evidence (i.e. the skid
marks). In his report he stated:

The initial left steering input
of a flick steer manoeuvre is very similar to an abrupt lane change manoeuvre.
To backward extrapolate the van’s position prior to swerving to the left, PC
crash was utilized to reverse simulate the leftward steering input which had
preceded the yaw. For the purpose of this simulation, it was assumed Ms. Scott
only used a steering manoeuvre and did not apply her brakes, and therefore was
travelling at a constant speed prior to the yaw. From the reverse simulation it
was found that traveling at 105 to 110 km/h a steering wheel input of 49° to 65°
to the left resulted in a swerving from the curb lane which aligned the van
properly with the start of the yaw marks in the fast lane. From the literature
(5), a steering input of 56° is
consistent with an abrupt lane change manoeuvre.

[100]    
Mr. Sdoutz’ conclusion is mere speculation. He was not at the accident
and he cannot put Ms. Shackelly’s car in Ms. Scott’s lane of traffic. Furthermore,
his conclusion is consistent with the van making a gradual change into the left
lane, which Mr. Romphf observed.

[101]    
Mr. Sdoutz made the following conclusions:

1.         Ms. Scott initially steered the Ford van sharply
to the left, before steering back to the right, which resulted in the van going
into a clockwise yaw.

2.         The yaw marks commenced in the southbound fast
lane approximately 1.6 metres west of Highway 1’s centerline and approximately
8 metres south of the centerline governing east Main Street.

3.         At the onset of the van’s yaw marks, the van was
traveling between 105 and 110 km/h.

4.         Ms. Scott’s van was approximately 80 metres from
the intersection when she first perceived a potential hazard.

5.         Ms. Scott’s steering
inputs and positioning approaching the intersection are consistent with her
having perceived Ms. [Shackelly’s]  sedan as a hazard which was encroaching
into the southbound lanes of Highway 1 and attempting to swerve around this
hazard.

[102]     His first
conclusion is not what Mr. Romphf saw or what Ms. Schenker said happened. I
reject this part of his opinion. The second and third of Mr. Sdoutz’ conclusions
relate to the sharp right-hand turn that the Scott vehicle made and which
caused the van to lose control and launch over the embankment. Again, these are
not in dispute. Finally, the fourth and fifth conclusions are assumptions that
Mr. Sdoutz made, and they are not consistent with the evidence. I also reject
those parts of Mr. Sdoutz’ opinion.

[103]     Based on a
review of the evidence, I find that Ms. Scott was negligent and that she was
100 percent responsible for the accident. I dismiss Ms. Schenker’s claim
against Ms. Shackelly.

DAMAGES

Evidence Relating to Ms. Schenker’s Pre-Accident Condition

[104]     At the
time of the accident, Ms. Schenker was age 20 and a resident of Smithers, where
she had lived most of her life. When she was not tree planting, she lived with Cathryn
Olmstead in Smithers.

[105]     Ms.
Schenker has four younger sisters. Her parents separated when she was eight
years old; after that, she and her sisters lived with their mother until Ms.
Schenker left her mother’s home at age 17. Her mother worked sporadically and received
welfare.

[106]      At about
age 13 or 14, after school and during weekends, Ms. Schenker worked as a
chambermaid to support herself. Subsequently, she worked in a fast food
restaurant, as a waitress, and as a clerk in a book store. At age 17, she left
home due to, as she described it, “an unhealthy home environment”. At one
point, she was living by the river in a tent. At the time of leaving home she
was still in school. Ms. Olmstead offered her a place to live, which she
accepted so that she could finish school.

[107]     In
kindergarten, Ms. Schenker was home-schooled. Ms. Schenker testified, and her
school records confirm, that she moved schools within different school
districts in the Smithers/Burns Lake area. Her school records for grades 4 to 6
inclusive show that she was a good student, receiving mostly As and some Bs.
Her marks started to decline in grade 7, and by grade 8 her marks were poor.
During grades 7 and 8, she was absent 36.5 days and 48 days, respectively, and
late 16 times in each of those years. There are no records for her grade 9 year,
but Ms. Schenker testified that she had poor marks and was often absent. In
February 2008 and while in grade 10, she withdrew from school. She testified
that she was looking after herself and working and caring for her sisters, all
without a support network. Had Ms. Schenker not withdrawn from high school and
completed her high school courses, she would have graduated in June 2007.

[108]     Later, Ms.
Schenker attempted to complete her schooling through correspondence, but was
unsuccessful. She enrolled in the alternate school, which was unstructured and
permitted students to be employed. She completed grades 11 and 12, graduating
after the accident in June 2010. During the alternate schooling, she was rarely
absent and all her marks were in the 90s.

[109]     Ms.
Schenker testified that it was important for her to graduate from high school
and that she enjoyed learning. She testified that she does not watch television
and that she likes the outdoors. Before the accident, she pursued snowboarding,
mountain biking, slack lining, and rock climbing, both indoors and outdoors.
While in school, she pursued wrestling, basketball, and track and field. She
hiked by day and overnight. She participated in these activities with an
approach described by her as “all out and gung-ho”. Her friend, Lauren Kroesin,
who Ms. Schenker has known and has been friends with since grade 7, participated
with Ms. Schenker in some of her recreational activities. She testified that
Ms. Schenker was a strong climber, both mentally and physically. Ms. Kroesin also
stated that Ms. Schenker was a talented snowboarder, going fast and ahead of
her.

[110]     Ms.
Schenker started planting trees in the planting season of 2008. The tree
planting season starts in May and ends in July. She lived in camp in the
Williams Lake area. She returned to tree planting in 2009; and despite her
injuries, she planted trees for the 2010 and 2011 seasons.

[111]     After Ms.
Schenker quit school, and still after graduating, she had no particular goals
or concrete plans. She considered occupations such as a helicopter pilot and
working in tourism, and at one time she mentioned to Ms. Kroesin a desire to
pursue carpentry. Although she could not pin down a specific occupation, she
knew that she wanted to be outside doing physical work with her hands; she also
knew that she did not want to deal with the public.

[112]    
She testified that she loved tree planting. It was outside and it paid
well. From 2008 to 2011, in addition to tree planting income, Ms. Schenker received
employment insurance. Ms. Schenker’s earnings from 2008 to 2011, as reported on
her income tax returns, are as follows:

[113]     Ms.
Schenker, prior to the accident, was healthy and active. She had no physical
limitations. She was able as a tree planter to work eleven hours per day, six
days a week, carrying 20 to 50 pounds of seedlings which she planted. Although
planters could take as many breaks as they wished, she described it as
endurance work. Ms. Schenker testified that “any monkey” can tree plant, but it
is the planter’s technique that allows the earning of more money.

Ms. Schenker’s Injuries and the Treatment of Those Injuries

[114]     Ms.
Schenker’s last memory before the accident is hanging on to the arm rest of the
van and then going off a “cliff”. Her next memory is lying on Main Street and
being in the most amount of pain that she has ever had in her life. She hurt
everywhere, but mostly in her spine. She recalls the ambulance attendants
arriving after what seemed like one hour had passed. She recalls being “fitted
up” by the ambulance attendants and being placed in the ambulance, although she
has no memory of Ms. Shackelly speaking to her while she lay on Main Street.
She then recalls being at the Lytton Hospital, the nurse cutting off her
clothes, and her arm being stitched. She remembers speaking to Ms. Scott.

[115]    
Ms. Schenker was transferred to RIH. She testified that she has no
memory of how she got there. Ms. Schenker was treated by emergency doctors,
nurses, and a neurosurgeon upon her arrival in hospital. She testified that
every part of her body hurt. She received Morphine for her pain. While in the
hospital she was visited by her mother, her sister, Kim, her grandmother and
her father, and Ms. Scott. She was put on intravenous and oxygen, and a
catheter was inserted. She had very little memory of the doctors and nurses she
encountered in her early stay at the hospital.

[116]     The
plaintiff’s medical and other expert reports are as follows:

Dr. Chevalier

[117]     Dr.
Chevalier, a neurosurgeon, operated on Ms. Schenker. Before operating, he
described to Ms. Schenker the nature of her injuries and his proposed surgery.

[118]     Dr.
Chevalier first saw Ms. Schenker on July 21, 2009, three days after her
admission to hospital and at the request of another neurosurgeon.

[119]     Dr.
Chevalier in his report said that Ms. Schenker had a loss of consciousness upon
being brought to the hospital, that her vitals remained stable, and that upon
regaining consciousness she was and remained alert and oriented. (Parenthetically,
I will add at this time that the medical reports appear to contradict each
other as to whether Ms. Schenker lost consciousness, which may come from Ms. Schenker
reporting that she did not lose consciousness. As Ms. Schenker did not suffer a
head injury, it is not important).

[120]     Ms. Schenker
had rib fractures and a small pneumothorax, which did not require the
implanting of a chest tube. She had a “traumatic scar on the left lateral chest
wall.” She had a number of contusions and abrasions, some of which had glass
embedded in them (which were removed after her discharge from the hospital).

[121]     Dr.
Chevalier found that Ms. Schenker had the following injuries to her spine:

·      
She fractured the upper aspect of the vertebrae at C7. He found
that this was the only area where the cervical spine was injured. He detected
no indication that this injury was unstable;

·       He
described Ms. Schenker’s thoracic spine injuries as more significant. He
described it as a flexion/distraction injury centered at the T6 vertebrae. He
describes the injury as follows:

Typically in that kind of injury there is a compression of
the forward aspect of the spine which had led to some loss of height of the
vertebral body of T6. The anterior aspect of that vertebral block was reduced
to about a third of its expected height, while the posterior aspect of that
vertebral block was reduced by 40% (hence to 60%) of its original height. On
the back side of the spine distractive forces had disrupted the facets of T6
(which links T6 to T5 above and T7 below). This led to a kyphosis (a bending
forward of the spine) I estimated to be between 20 and 22 degrees at that
level. Other signs of the distractive forces were seen with fractures of the
spinous processes from T4 down to T8. This type of injury typically leads to
loss of the normal weight support carried by the spine anteriorly and a loss of
the pull-back support (called posterior tension band) normally carried out by
intact posterior spinal elements. My assessment of this fracture was that it
would behave in an unstable fashion and would require surgical fixation, which
we will discuss later.

·      
She had discrete fractures of the upper aspect of the vertebral
T10, T11, and T12. He described these as trivial; he did not expect them to
cause problems;

·       In
Ms. Schenker’s lumbar spine, she sustained a compression fracture of the L4.
Bone was protruding backwards where the nerves are located in the spine,
“occupying 50% of their normal space.”

[122]     Dr.
Chevalier performed a decompressive laminectomy of the T6 and “instrumented
fusion” spanning from the T4 to T8 inclusive. The x-rays after surgery depict
rods and screws inserted in Ms. Schenker’s vertebrae. While Ms. Schenker was in
the hospital, Dr. Chevalier determined that as the fracture at the L4 continued
to behave in a stable fashion; surgery was not required.

[123]    
Following her release from hospital, Ms. Schenker had x-rays taken in
Smithers, which were sent to Dr. Chevalier to review. The first set of x-rays
was taken about one month after Ms. Schenker’s discharge. Dr. Chevalier states
in his report:

… The lumbar spine, even though
remaining with a bit of a scoliotic curve, did not change appreciably during
the interval.

He found that the L4 fracture “appeared to be healing well,”
which was a result of his decision to treat it with a brace.

[124]     In December
2009, Dr. Chevalier reviewed further x-rays received from Smithers. He
concluded that everything was healing well. There were no signs of failure of
the rods and screws in the thoracic spine, nor were there signs of unstable
healing in the L4 fracture.

[125]     Ms.
Schenker had a follow-up visit with Dr. Chevalier on May 26, 2010, at which
time new x-rays were taken. Dr. Chevalier found that the x-rays of the thoracic
spine were “essentially similar between 2010 and 2009, without any signs of
instrumentation failure.” He concluded that the thoracic spine was solid.

[126]    
Dr. Chevalier gave the following prognosis for the future and the
permanency of Ms. Schenker’s injuries:

The flexion distraction injury to
her thoracic spine in my opinion [is] more likely to give her lasting problems.
The injury mechanism is more complex and does not only involve compression of
the anterior aspect of the weight-bearing spinal column, but distraction of the
posterior tension band. This involves fracture of some bony elements which usually
tends to heal well. It also involves a significant soft tissue injury which has
a higher likeliness to lead to lasting pain. I think this is what we can
observe with the pain she describes at the upper aspect of her thoracic spine
incision and that radiates up to her shoulder and her neck, a description
typically seen with muscle-born pain.

[127]    
As to the pain that Ms. Schenker suffers, Dr. Chevalier anticipates that
it will settle down in the next one to two years. He anticipates, however, that
she will see “some lasting pain and this may pose a significant challenge to
her future professional life depending on the line of employment she will
choose.” Most importantly, Dr. Chevalier states that at the time of writing his
report, he could not “readily quantify the degree of permanent impairment.”

[128]    
Although he states that his prognosis for the extent of permanent injury
Ms. Schenker suffered in the accident can still change over the next year or
two, he concludes:

… I remain with the strong
impression that her career choices will be affected by limitations she will
have coming from her spine pain.

[129]    
Dr. Chevalier also raises the matter of the risk of arthritis. In his
view, because the fusion in the thoracic part of the spine is fairly immobile,
arthritis is not likely to occur in that area. As for the areas of the spine
that are more mobile, he states that “the jury is still out.” He candidly
states that he does not have an answer. However, he states that he expects that
Ms. Schenker would have the following issues going into the future:

… more problems in the future
are at the at the level of the C6-C7 disk which may degenerate faster since it
has been partly disrupted by the fracture of the upper end plate of C7. … The
same applies to the L3-L4 disk because of the burst fracture of L4. These two
areas in my professional opinion are the most likely to give her osteoarthritic
problems in the future, which may require further surgical treatments.

[130]    
Dr. Chevalier ends his report with this comment:

Even though she has made a
spectacular functional recovery to this date, being able to return to tree
planting less than a year after her motor vehicle accident, I remain of the
opinion that this young woman will remain impaired to some degree by the
injuries previously described in this report. The exact degree of this
impairment is yet to be determined.

Dr. McKenzie

[131]     Dr.
McKenzie examined Ms. Schenker at the request of her counsel. The examination
took place on October 12, 2010. When Ms. Schenker saw Dr. McKenzie she reported
thoracic, low back, neck, and hip pain. She told Dr. McKenzie that the hip pain
started when she became mobile. She said that the left hip pain is worse than
the right hip pain.

[132]    
Dr. McKenzie relates in his report:

1.         Thoracic spine
pain.

She has ongoing pain at approximately the T6 level (points to
just above the tip of the shoulder blade). She is painful and stiff in this
area. It is constantly sore. It is aggravated by prolonged standing and
sitting. Lifting, carrying, twisting and turning aggravate it. Any impact
aggravates it. It is improved somewhat by stretching. When she was tree
planting this year she took naproxen every day and occasional Tylenol 3. She
denies neurologic compromise. She grades her day to day pain as a 4/10. (0 out
of 10 is no pain whereas 10 out of 10 is the worst pain she could ever
imagine). It can be as much as a 10/10. She notes this if she does any
prolonged standing or sitting for more than an hour. If she goes on hikes (3 to
4 hours) that also brings on the more severe pain. She thinks it may have
improved over the last six months.

2.         Lower back pain.

She points to the level of the beltline in the midline. This
is intermittent but is there on a daily basis and she estimated ¾’s of her day.
It is aggravated by the same activities that bother her thoracic spine. It is
improved by stretching and rest. She denies neurologic compromise. She denies
bowel or bladder dysfunction. She grades her day to day pain as a 2 to 3/10. It
can be as much as a 10/10 however with the more significant activities
described above. She does not think it has been improving lately.

3.         Neck pain.

She has pain in the lower neck. It is in the midline. It is
intermittent but not daily. She estimates it is there 4 to 5 times a week. It
is aggravated by shoulder checking while driving. Rock climbing aggravates it.
Cooking aggravates it. It can be there all day but usually it is there for an
hour or two. It is improved by stopping the activity that is bringing on the
pain. She denies neurologic compromise in her arms. She grades her pain as a
6/10 and thinks it is continuing to improve.

4.         Hip pain.

She has pain in the hips. The left side is much worse than
the right. She noted this a few months following the accident when she began to
get more mobile. She has pain in the anterior aspect of the left thigh. It is
aggravated by walking, lifting and hiking. The hip feels stiff. The pain can go
as high as an 8 to 9/10 and she thinks it is getting worse. She occasionally
limps.

She has had no other accidents or
events to account for that or her ongoing problems.

[133]    
Dr. McKenzie’s opinion is as follows:

·       
The C7 vertebrae has healed in good position;

·       
The L4 vertebrae has healed in a displaced position, and the
resolution of this pain in the area is poor;

·       
She has residual pain in her neck;

·       
She has not reached a maximum medical improvement;

·       
The pain she experiences and its resolution is poor, despite the
fact that Ms. Schenker thinks that it is improving. A final opinion cannot be
given for approximately another year;

·       
The T6 vertebrae injury, which she suffers pain from, is
aggravated by aggressive activity;

·       
Her pain “will deteriorate particularly below the fusion level”;

·       
The fractures in her back “are likely to significantly impact on
her employability in the future.”

·       
These injuries will impact her activities of daily living and
recreation;

·       
He suggests that she may have injured the soft tissue structures in
her left hip areas. He recommends further medical investigation to rule out a labral
lesion which may be treatable.

[134]    
Dr. McKenzie ends his opinion with this comment:

Although a final prognosis cannot
yet be given, she is likely to have ongoing persistent problems in these areas
for the foreseeable future and likely permanently as a result of these
injuries.

Dr. Koo

[135]     Ms.
Schenker’s counsel also asked Dr. Koo to evaluate her.

[136]    
He performed his assessment of Ms. Schenker on October 9, 2010. Dr. Koo
is a doctor of physical medicine and rehabilitation (physiatrist). In his
report, Dr. Koo gave a detailed list of Ms. Schenker’s injuries documented from
RIH. As a result of his assessment, Dr. Koo made these findings:

1.         She
had reduced range of motion of the neck in the directions of flexion and
left-sided rotation. There was pain noted at the midline of C6-7 at the end
range of flexion and rotation in both directions. Extension was pain-free.

2.         Myofascial
trigger points were identified within the midbody of the right more so than
left trapezius, and the right rhomboid more so than left. There was also
tenderness and fibrosis felt adjacent to her thoracic spinal incision, maximal
at T6.

3.         End
range of back flexion and rotation was associated with reports of midline
midback pain, maximally at the T7 through T9 levels. Rotation was moderately
reduced in both directions, with end range pain noted again at the T7-T9
levels.

4.         She
exhibited a thoracolumbar scoliosis, which was mild and likely a preexisting
condition. In standing, she exhibited relative in-toeing of the left leg
compared to the right. Hip examination revealed shortening of the external
rotator muscles of the left hip with subsequently limited internal rotation of
18° (compared to 30° on the right). She had tightness and hip flexion
contractures bilaterally of 15°. There was also tightness of the iliotibial
bands bilaterally, but more so on the left with an Ober’s of four inches,
versus three inches on the right.

5.         Her
neurologic examination was normal for tone, bulk, power, reflexes and
sensation.

6.         She
had several traumatic and surgical scars including a midline thoracic spinal
incision from T3-T8. Post-traumatic scarring with some degree of scar
hypertrophy was also seen in a 4 1/2-inch linear scar overlying the left scapula,
as well as smaller scars between ½ – 1 inches in length overlaying the left
flank. Multiple small, healed scars were also seen in the anterior knees.

7.         Lumbar
flexion increment was normal with a 7 cm span associated with forward flexion.
Thoracic flexion increment, however, was subnormal at 2.5 cm.

8.         Screening examination for
fibromyalgia tender points was negative. Waddell’s criteria for nonorganic
pathology was also absent.

[137]    
Dr. Koo determined that Ms. Schenker had suffered the following injuries
and conditions:

1.         Concussion;

2.         Orthopaedic
multitrauma with clinical or radiographic documentation of the following:

 a.         Multiple
abrasions to her body including the right shoulder, left shoulder blade and
extremities. There were also some embedded glass fragments, which required
subsequent removal from her family physician at a later date.

 b.         She
was noted to have a small area of bruising to the right forehead on her nursing
assessment of July 18, 2010.

 c.         Mildly
comminuted C7 vertebral body fracture of the superior (upper) endplate and
posterosuperior corner of C7, with displaced bone fragments posteriorly into
the spinal canal by 4mm, and narrowing of the left C6-7 foramen.

 d.         T4
right transverse and spinous process fractures.

 e.         T5
right transverse and spinous process fractures, and posterior neural arch
fracture.

 f.          T6
burst fracture with greater than 50% compression of the vertebral body height
anteriorly and resultant kyphotic deformity between 17-22°.

 g.         T7
right transverse and spinous process fractures.

 h.         T8
right transverse and spinous process fractures.

 i.          T9
spinous process fracture.

 j.          Wedge
compression fractures of T10, T11, and T12.

 k.         L4
burst fracture with greater than 50% compression, involving base of pedicles of
each side, spinous process and posterior neural arch fractures. The L4
vertebral body fragments were occupying approximately 50% of the spinal canal
with 7mm displacement posteriorly, narrowing the anteroposterior dimension of
the spinal canal by approximately 50%.

 l.          Right
rib fractures #10 and #11.

 m.        Left
rib fractures, anterior end of #1^st.

 n.         Small
hemo-pneumothorax.

 o.         Paraspinal
hematoma.

3.         Catheter-associated urinary
tract infection.

[138]    
A concussion was not mentioned by any of the other doctors of either the
plaintiff or the defendants. The basis of Dr. Koo’s finding of a concussion is
as follows:

Her brief loss of consciousness
and some potential attention/memory impairments noted by her inpatient
occupational therapist suggest that she likely incurred a concussion at the
time of the accident as well. Her normal CT head would be a common, and
expected finding in the context of a concussion.

[139]     Dr. Koo
points out that Ms. Schenker had multiple vertebral fractures spanning her
entire back, several of which were unstable and which increase “the severity of
her initial fractures, as well as her risk for long-term pain and disability.”
Dr. Koo points out that her wedge compression is a stable fracture. Despite
this, he states that they can result in acute pain in the surrounding membrane.

[140]    
Dr. Koo states:

In my opinion, this increased
biomechanical strain is likely accounting for some of Ms. Schenker’s reports of
pain when rock climbing, particularly as it relates to her ability to rotate
through the mid chest and reach laterally from side to side. Over time, this
increased biomechanical strain will likely increase her rate of wear and tear
and associated degenerative changes of the upper (T1-4) and bottom (T8-12)
thoracic segments, and accelerate her risk of degenerative arthritic changes at
these levels.

[141]     Dr. Koo
recommends physiotherapy, chiropractic treatments, and a regular physical
activation program. Also, Yoga and Tai Chi would gradually stretch her muscles.

[142]    
Dr. Koo states that it is premature to fully determine a prognosis on a
physical recovery. He expects that with exercise and activity she will achieve
some improvement. At the time of writing his report, he concludes:

In my opinion, Ms. Schenker is to be commended on her
proactive approach in her reactivation program. In addition to following her
physiotherapy, she has also gone on to carry out a self-directed activation
program as best as she can, and continued to pursue tree planting activities
despite activity-associated pain. Such physical activity progression is
consistent with what I would normally recommend in such scenarios, and is not
only important from a physical recovery perspective, but also from an emotional
recovery perspective due to Ms. Schenker’s highly active pre-injury life.

In my experience, if her physical symptoms of pain and
stiffness persist beyond two years post-injury despite the aforementioned
treatment, then her residual condition and activity limitations will likely be
permanent.

In the future, she is at increased risk of reinjury or
susceptibility to further trauma. If she should become pregnant, her pre-injury
back complaints will likely increase her risk of pregnancy-related back pain
and may require further activity limitation than what would normally be expected.
Her current plans are to pursue active employment as a tour guide or possibly a
helicopter pilot. Although she would likely do reasonably well in light to
moderate physical activities with the ability to change position frequently,
she may not tolerate prolonged immobilization such as sedentary desk work or
being seated in a pilot’s chair.

Although Ms. Schenker denies
depressive symptoms currently, she does admit to a period of adjustment during
her initial months when she was less mobile. In my opinion, she remains at an
elevated risk for worsening depression in the future based on her chronic pain
and activity limitation, which are known risk factors for depression. If this
is the case, she would likely benefit from review from a mental health professional,
such as a psychiatrist or psychologist, for further evaluation and treatment
recommendations.

Shannon Smith

[143]     Ms. Smith
is an occupational therapist. Ms. Smith provided her opinion on how Ms.
Schenker’s activities of daily living and recreational activities would affect
her pain and ability to perform certain functions. In addition, there was
clinical testing to confirm recorded pain and disability. Ms. Smith
administered certain tests on Ms. Schenker to determine her capacity to work in
various situations.

[144]     It is Ms.
Smith’s opinion that Ms. Schenker approached her work capacity testing with high
levels of effort. She stated that Ms. Schenker at times over-estimated her
strength capacity on a questionnaire that she completed.

[145]     Ms. Smith
came to the following findings:

·      
Ms. Schenker is able to perform jobs that require reaching,
handling, fingering, and/or feeling in upper limb coordination;

·      
She is not suited to work in situations where significant
“sustained mild to extreme stooping” is required. These positions improve with
leaning against something with her arm or trunk. There are no limitations
identified for kneeling and crouching, but “simultaneous forward bending in
these positions should be limited.”

·      
She can perform work that requires sedentary, light, and select
medium-strength work. Repetitive work should be limited to light strength work.
Also, she is not suited to work that requires frequent and constant lifting;

·      
She has a sitting tolerance of about one to one and a half hour
at a time. For work that is sitting intensive; she has a tolerance of 30
minutes. Any full-time sitting relating to work will require opportunities to
shift positions and take standing breaks, even if she has appropriate ergonomic
supports. Ms. Schenker’s standing/weight bearing tolerance is approximately 15
to 20 minutes at one time. She is not suited to a job requiring static
standing, but is able to static stand for 15 to 20 minutes. She is functional
for basic walking;

·      
Subject to the above restrictions, she is able to perform
full-time work;

·       Ms.
Smith concludes that Ms. Schenker is not suitable for tree planting. Ms. Smith
states that it was remarkable that Ms. Schenker tree planted after the accident.

[146]    
Ms. Smith concludes:

… Ms. Schenker has demonstrated
the capacity to “push through” her symptoms and function at a very high
level on a short-term basis, however her long-term durability in a given job,
and her ability to manage her symptoms while maintaining a reasonable overall
level of function (i.e. in school, home management, and leisure/recreational
activities, in addition to work) will depend on the careful selection of jobs
with physical demands that are consistent with the abilities and limitations
outlined in this report.

[147]     Ms. Smith
also prepared a cost of future care report, which I will deal with later in
these reasons.

Dr. Richardson

[148]     At the
request of Ms. Scott’s counsel, Dr. Richardson examined Ms. Schenker on July
16, 2012. Dr. Richardson found that Ms. Schenker was still symptomatic three
years after the accident and that she will probably continue to have:

a)    occasional pain;

b)    persistent
thoracic spine pain; and

c)    
persistent lumbar spine pain, the symptoms from which will continue to
be aggravated or exacerbated by her activities of daily living for the
foreseeable future.

[149]     Dr.
Richardson found that Ms. Schenker had good range of motion in her cervical
spine with “minimal findings of tenderness or pain.” He found that Ms.
Schenker’s thoracic spine had a mild decrease in range of motion in the
thoracic and lumbar spine with tenderness in the midline from T4 to T8 and to
S1.

[150]     He found that
she had good range of motion in both hips without hip joint pain on testing for
femoral acetabular impingement or acetabular labral tear.

[151]    
Dr. Richardson states that Ms. Schenker has two major fractures in her
spine at T6 and L4, and other multiple small fractures. Dr. Richardson, based
on a study, states:

2.         Thoracic
spine fracture and lumbar spine fracture. According to Medical Legal Reporting
in Orthopedic Trauma, edited by Dr. Foy and Fagg, Edition 4; there is:

a.         Up to 20% chance of a patient
with:

i.          Thoracolumabar fracture being
completed disabled subsequent to that fracture.

b.         There
is a 60% chance of a patient with one thoracolumbar spine fracture still being
symptomatic more than 5-9 years post-injury.

Ms. Schenker has two major fractures in her spine including
T6 and L4 as well as multiple other small spinous process or transverse process
fractures.

[152]    
Dr. Richardson addresses the risk of arthritis in the following manner:

3.         Risk of osteoarthritis. In
review of the literature available, there is no definitive long term study that
can correlate the occurrence of a thoracolumbar fracture and subsequent
development of spondylosis or arthritic change in the thoracolumbar spine.

[153]     Dr.
Richardson concludes that Ms. Schenker is not at risk for surgery at the
cervical or thoracic spine areas. He does not expect that surgery will be required
in the lumbar spine “unless she has a major change in her symptomatology.”

[154]     Dr.
Richardson assessed Ms. Schenker’s impairment as follows:

1.         Cervical
spine. Range of motion of the cervical spine was good and there were no
specific major findings of note, however Ms. Schenker does have occasional
symptoms.

 Given
the nature of her cervical spine fracture, the AMA Guide to Permanent
Impairment places her between Diagnosis Related Class 0 and Class 1 with
relative values of 0-4% impairment of the whole person.

2.         Thoracic
spine. The nature of Ms. Schenker’s thoracic spine fracture places her in Class
2 of the Diagnosis Related Impairment giving her an impairment of anywhere from
7-11% impairment of the whole person.

3.         Lumbar
spine. Again, 40-50% loss of vertebral height from a burst fracture places Ms.
Schenker in class 2 in the Diagnosis Related Impairment, giving her a 5-9%
impairment of the whole person.

 It
should be clear however that Ms. Schenker’s functional disability is the result
of her increased symptom of pain in mainly her thoracic and lumbar spine with
her increase in activities.

 It is
also my opinion that given the nature of her injuries and her symptoms, she is
most probably not suitable for medium to heavy type labour and that she needs
to change position frequently and most probably is suited for light with select
medium duties as per the Functional Capacity Evaluation included in the
records.

 It should be noted that Ms.
Schenker has done very well considering the multiple spinal fractures she had.

[155]    
Dr. Richardson is of the opinion that Ms. Schenker’s recovery has
plateaued and that she is unlikely to improve in the foreseeable future. He
also concluded that Ms. Schenker had a pre-existing “minor asymptomatic
scoliosis prior to the motor vehicle accident of 2009,” which is unrelated to
her symptoms. He does not recommend any further investigations. Further, he
recommends “core strengthening and stretching” for rehabilitation. Dr. Richardson’s
opinion as to Ms. Schenker’s ability to work is as follows:

Ms. Schenker’s ability to work has been moderately affected
by her injuries sustained in the motor vehicle accident. Two significant
injuries in the thoracolumbar spine at different locations including a T6
fracture and a burst L4 fracture has changed Ms. Schenker’s ability to work in
any labour intensive industry requiring bending forward, reaching forward,
lifting or carrying anything medium to heavy or above.

This will be a permanent
restriction. Her permanent impairment, as noted above, is based on the AMA
Guide and Diagnosis Related Estimates.

[156]    
He comments that medication and pain relievers are useful, but he warns
that narcotic medication should be avoided.

[157]    
With respect to the cost of future care report of Ms. Smith, Dr.
Richardson makes these comments:

… treatments such as massage,
physical therapy, manipulation and medication will only give Ms. Schenker
symptomatic relief and will not change the overall outcome at this point and
time.

[158]    
He concludes:

ii.         The only proven method to
control symptoms in the thoracolumbar spine and neck is through an active
exercise program, which has to be carried on for an indefinite basis by Ms.
Schenker and will require access to some kind of facility for the program. This
is usually done on a self directed basis with intermittent supervision by a
kinesiologist and/or physiotherapist as necessary.

[159]     He
acknowledges that Ms. Schenker will need help with any heavy to very heavy
activities and home maintenance, although she should be able to do light duty
housekeeping activities. He confirms that Ms. Schenker is not suitable for
medium to heavy labour intensive work and that vocational counselling will be
useful for her.

Conclusions Regarding the Medical Evidence

[160]     The
medical evidence, whether produced by Ms. Schenker or Ms. Scott, is not really
in dispute. Dr. Chevalier and Dr. McKenzie were not able to give a final
opinion on Ms. Schenker’s outcome, but it is clear that the change or
improvement would occur within two to three years. Dr. Richardson saw Ms.
Schenker at that period of time as anticipated by Dr. Chevalier and Dr.
McKenzie. Dr. Chevalier thought that Ms. Schenker may require surgical
intervention. Dr. Richardson says that he does not believe that to be the
situation. As Dr. Richardson has seen Ms. Schenker at the time that Dr.
Chevalier contemplated, I conclude that no further surgical intervention would
be required except with the one proviso that Dr. Richardson referred to, which
was she will require surgery if she has major change in her symptomatology.

[161]     The
question of arthritis has arisen in this trial among the medical doctors. There
is no complete agreement among the doctors whether Ms. Schenker will develop
osteoarthritis. I conclude that Ms. Schenker will unlikely develop
osteoarthritis in the thoracic region of her spine, but will likely develop
osteoarthritis and degenerative changes in the cervical and lumbar part of her
spine.

[162]     I conclude
that Ms. Schenker suffered excruciating pain as a result of this motor vehicle
accident. Although that pain has lessened over time, the level of her pain will
depend on the activities she pursues. I conclude that pursuing some of her
activities aggravated her injuries, in that they caused her more pain that
forced her to stop the activity. I do not conclude, however, that her
activities in any way re-injured the injuries suffered in the motor vehicle
accident.

[163]     I accept
Ms. Smith’s evidence on Ms. Schenker’s employment limitations. I accept that
she will be able to work full-time subject to adjustments being made within her
work environment.

[164]     I accept
that treatments such as chiropractic therapy, massage therapy, and
physiotherapy will not cure Ms. Schenker’s injuries, but I find that she will
require these treatments as she goes on with her life in order to have some
relief from pain and stiffness from time to time. Ms. Schenker is a keen
outdoor enthusiast, enjoys physical activities. I find that she will continue
to enjoy some physical activities, but they will be limited and there will be
some activities she will unlikely be able to pursue (e.g. snowboarding because
of her concern for falling). I find that she will have no difficulty pursuing the
gym programs that have been recommended.

[165]     Everyone
who reported on or assessed Ms. Schenker’s medical condition was amazed at her
efforts towards recovery and the activities in which she participated.

Ms. Schenker – After the Accident

[166]     Ms.
Schenker was treated at RIH. She was discharged on July 31, 2009 with a
prescription for Percocet to treat pain, and a cervical collar and back brace (which
was referred to at this trial as a “clam shell” brace). The back brace was to
be used when she was mobile.

[167]     At the
time of her release from RIH, Ms. Schenker could not care for herself and could
only walk with a “clam shell” brace. Accordingly, upon her release from
hospital, she remained in Kamloops with a friend for two days and then
travelled to Smithers to stay with Ms. Olmstead. Her father drove her to
Valemount, where Ms. Olmstead met them with her car. The trip to Smithers from
Kamloops was 16 hours with a couple of breaks. Ms. Schenker was a front-seat
passenger in both vehicles. She described the trip as “horrible,” not only
because of her pain, but also because she was terrified of the other vehicles
on the highway. Her reactions were observed by Ms. Olmstead. Any food she ate
on the trip she threw up. She described herself when reaching Smithers as being
a “wreck.” In order to get through the trip, Ms. Schenker took a lot of pain
killers. She returned to the same house she and Ms. Olmstead had lived in
before the accident.

[168]     Her bed
was modified by using plywood for support. She would remove her brace and neck
brace when she was in bed. Initially, she was not able to eat solid food; for a
while she only drank smoothies and other liquids, but eventually she was able
to eat toast. She was unable to dress herself or go to the bathroom on her own.
She could hardly get out of bed on her own. She could not cook for herself. Ms.
Olmstead arranged to borrow equipment from the hospital to assist Ms. Schenker
in the home.

[169]     Her neck
brace lining had to be changed on two or three occasions. This required people
to come from Houston to perform the task.

[170]     Ms. Olmstead
would take Ms. Schenker out to the front lawn where Ms. Schenker would sit on a
lawn chair so that her hair could be washed. She had sponge baths only until
the fall of 2009. Friends would come to her home and help her out. Up to the
third month after the accident, she did not get out of bed except for short
periods of time. In October 2009, the brace was gone permanently. She stated
that when the braces came off she spent more time in bed. She stated that she
could not bend over and that her body felt like “concrete.”

[171]     In
Smithers, Ms. Schenker was in the care of Dr. Kathleen Blouw, the mother of a
fellow tree planter. Dr. Blouw did not give evidence, nor did she provide an
expert report. She coordinated Ms. Schenker’s medical treatment, provided
medical advice, and prescribed pain medication. Dr. Blouw also arranged for
x-rays to be taken and then sent Ms. Schenker on to Dr. Chevalier in Kamloops.

[172]     Ms.
Schenker managed with her brace on to go outside and walk two blocks. Another
time, she went out into the bush. One time she attempted to cross the road, and
she was observed by Ms. Olmstead to turn around and go back home. She was eventually
able to travel to the grocery store that was three blocks away. Ms. Olmstead
took Ms. Schenker on some back roads so that she could drive, but Ms. Schenker
was nervous and agitated.

[173]     Ms.
Schenker had ten physiotherapy sessions. They started in October 2009 and ended
in April 2010. Eventually she was able to travel to those sessions on her own.
Ms. Schenker found physiotherapy painful. The physiotherapy sessions were
designed to strengthen and stretch her muscles, and Ms. Schenker acknowledged
that she gained mobility from these sessions.

[174]     Towards
the end of 2009, Ms. Schenker was going to the gym where she would rock climb
on an indoor wall. She found that it assisted with her mobility and found it
not to be high impact. Ms. Schenker testified that her pain fluctuated wildly;
although the pain seemed fairly low lying in bed for a day, it would shoot up
when she walked to physiotherapy or rock climbed. Movement such as twisting,
bending, lifting, and looking up or from side to side triggered pain. She
testified that she had a lot of problems with pain. The area of the T6 was very
painful for about five months. She also noticed that she had pain in her left
hip when the brace came off.

[175]     Dr.
McKenzie was of the view that she may have injured “the soft tissue structures
in the left hip area.” He suggested that she undergo an MRI anthogram to rule
out a labral lesion. Subsequently, and in Dr. Richardson’s examination, he has
ruled that possibility out.

[176]     Ms.
Schenker had difficulty sleeping and found that the pain interrupted her sleep.
Ms. Schenker acknowledged to Dr. Blouw that she was improving, but that is not
to say that she was pain-free or that she could do all the things she could do before
the accident. On the whole, I accept Ms. Schenker’s evidence as it relates to
her pain and its intensity.

[177]     After the
accident, Ms. Schenker returned to tree planting in the 2010 and 2011 seasons.
She testified that she liked tree planting and that she was stubborn about
doing it. She said that she did not have many options and she needed the money
to support herself.

[178]     The tree
planting company was the same one she worked for before the accident. Her
fellow tree planters made accommodations for her. For example, they would give
her the best seat in the vehicle that transported them to the various tree
planting blocks.

[179]     In order
to get her through the season, she relied on pain killers. She found that the
2011 season was slightly better than the 2010 season.

[180]     Her
friend, Ms. Kroesin, was in the same camp with Ms. Schenker in 2011 and saw her
daily. Ms. Kroesin testified that Ms. Schenker was not a complainer, but she
observed that Ms. Schenker was in pain and was taking Tylenol 3. She said that
Ms. Schenker spent a lot of time by herself and that she went to bed early.

[181]     After the
accident, Ms. Schenker returned to school, completing her grade 12 in June
2010.

[182]     In January
2011, she started some college courses. She completed these with straight As.
She attended classes Monday, Tuesday, and Wednesday. Her classes were two hours
long, interrupted by a coffee break. She was required to sit on plastic chairs,
which caused her discomfort. She was able to move around without making a
distraction in the class. Her pain levels went up. Although she was able to
focus on her class, her focus dwindled toward the end of the week.

[183]     She did
all her homework on a laptop. She could not sit at a desk because of her
injuries, so she did all her homework and reading lying in her bed, propped up by
pillows.

[184]     In
February 2012, Ms. Schenker and Ms. Scott travelled to New Zealand for a
holiday. They returned in late June or early July. While in New Zealand, she
and Ms. Scott obtained employment standing at a conveyor belt packing kiwi
fruit from 7:30 a.m. to 5 p.m., six days a week (about 50 to 60 hours per week).
They left after eight days, as Ms. Schenker was relying on pain killers and
could not continue with this employment. Ms. Scott testified that she found the
job hard herself. For a period of about two weeks, Ms. Schenker and Ms. Scott
did fundraising for Green Peace. Ms. Schenker found walking on concrete hurt
her back.

NON-PECUNIARY DAMAGES

Ms. Schenker’s Position

[185]     Ms.
Schenker seeks $160,000.00 in non-pecuniary damages. In support of this amount,
she relies on Caldwell v. Ignas, 2007 BCSC 1816 and X. v. Y., 2011
BCSC 944.

[186]     In Caldwell,
the plaintiff was 36 years old at the time of trial. In the accident, he
sustained a fracture of one or possibly two vertebrae in the upper back, a
herniated disk, together with soft tissue injuries to his neck and mid-back,
which were the site of the fractures and the disk herniation. The court found
that Mr. Caldwell suffered chronic pain when he performed certain functions and
activities, and that his injuries were unlikely to improve and were permanent.
Between his shoulder blades he had constant pain, increasing with a variety of
activities. His sleep was interrupted, which impacted his concentration. The
court found Mr. Caldwell’s evidence to be reliable and consistent with the
findings of his doctors. Mr. Caldwell was awarded $100,000.00.

[187]     In X.
v. Y., the plaintiff, X., a police officer, was age 43 at the time
of the collision. He was responding to an emergency call, travelling on a
motorcycle. In doing so, he was hit by a truck operated by the defendant, Y.,
and owned by the corporate defendant. X. sustained a burst fracture of the T12
vertebra, which was fused and which required the placement of rods and screws.
The fusion was from the T11 to the L3 with bone grafting from T12 to L2. He was
released from hospital six days after surgery. He used pain medication to
manage his pain, and he was required to use a “clam shell” brace, which he was
weaned from within three months of his surgery. He ceased pain medication and
was able to walk 1.5 miles a day within two months of his surgery. He attended
physiotherapy for a period of five months. He was back to work on a graduated
return to work plan within nine months. He was never able to perform the front
line policing duties that he had performed in the past. The court accepted
medical evidence that X. was permanently disabled “insofar as repetitive heavy
bending, lifting and twisting movements are concerned with his spine.” The
court concluded that X. was at risk of injury and re-injury to his spine. The
court found that his injury prevented him from maintaining his former level of
physical and cardiovascular fitness. There was a possibility that further
surgery would be performed to remove the screws and rods from his spine. The
court awarded him $140,000.00 in non-pecuniary damages.

The Defendants’ Positions

[188]     The
defendant, Ms. Shackelly, relies on Tams v. Tams, [1995] B.C.J. No. 1191
(S.C.). In Tams, the plaintiff, age 18 at the time of the accident,
sustained a concussion; fractures in the C1, C3, C4, T9, T10 (compression
fracture), T11, L1 and L2; a fracture of a rib; pulmonary contusion of the left
hemopneumothorax and the right hemopneumothorax; and various lacerations. Mr.
Tams was initially hospitalized in intensive care. He was eventually placed in
a brace. He was in the care of his parents for about two months while
recuperating. Initially, he spent all his time lying down on his back, but
eventually he started taking short walks of increased duration. He returned to
his job as a herdsman on a dairy farm within five months of the accident. At
the beginning, his employers gave him light duties. Within eight months of the
accident, he was able, with difficulty, to assume his pre-accident duties.
Within two months, he returned to the hospital for a fusion of the C3-4
vertebrae. The medical evidence was that he would develop arthritis at the site
of the fusion, and that the disks above and below the fusion were vulnerable to
accelerated disk degeneration because of disk protrusion. It was suspected that
this degeneration was already underway. The medical evidence was that the pain
that he was then suffering in the neck, along with its movement, would not
improve with time. His work in the longer term would increase his pain. He had
good and bad days with his back and was aware of the discomfort all day.
Standing and bending, and other working positions, caused him some pain. His
range of motion was limited in some of his work activities and more so than his
recreational activities. Mr. Tams was awarded $80,000.00.

[189]     The
defendant, Ms. Scott, submits that the amount awarded for non-pecuniary damages
should be between $50,000.00 and $80,000.00. In support of this position, she
relies on:

Lowen v. Kovacevic, 2005 BCSC 1520;

Jack v. Tekavec, 2010 BCSC 1773;

Pharness v. Wallace, [1991] B.C.J. No. 4003 (S.C.);

Pulgar (Guardia ad litem of) v. Bruce, [1995] B.C.J.
No. 2458 (S.C.);

Dilello v. Montgomery, 2005 BCCA 56; and

Erickson v. Webber, 2005 BCSC 1048.

[190]     In Jack,
the plaintiff fell from a balcony of an apartment owned by the defendant. The
defendant was found liable pursuant to the Occupiers Liability Act. As a
result of his fall, Mr. Jack, age 31, suffered injuries to his pelvis, a
fracture to two ribs, facial fractures, a stable disruption of the right S1,
joint and bilateral traverse process fractures of the L4 and L5 vertebrae, and
left traverse process fractures of the L1 and L2 vertebrae. As a result of the
accident, Mr. Jack suffered pneumonia and a mild infection of the abdominal
incision. Also as a result of his pelvis injury, he had a slight shortening of
one leg, and one side of his pelvis was slightly higher than the other side.
The court awarded Mr. Jack $100,000.00.

[191]     In Pharness,
the plaintiff, who was not wearing a seatbelt, was injured in a motor vehicle
accident. She had a burst fracture of the C7 vertebra. Initially, she had no
sensation below her neck. Sensation and mobility gradually returned. She was
discharged from hospital two months after the accident. The court found that
she had made a good recovery only a year and a half after the accident. She was
found also to have suffered a shoulder injury found to be mild in nature.
Non-pecuniary damages were awarded in the amount of $40,000.00 in 1991.

[192]     In Pulgar
(Guardia ad litem of), the plaintiff, age 17, was awarded $75,000.00 in
non-pecuniary damages for injuries she suffered in a motor vehicle accident in
1995. The plaintiff suffered a compression fracture of the vertebral body of
the L3, a fracture of the left tibia, and a laceration to the skin and tissue
of her heel. She was in hospital for ten days and spent three weeks
recuperating. She was in pain in the hospital and, while recuperating, she
required constant care. The plaintiff received physiotherapy for her broken leg,
which healed without residual problems; but she was left with an unpleasant
sensation in her heel, which caused her difficulty when wearing certain shoes.
The compression fracture was her major lasting problem. She experienced
difficulty lifting heavy weights, sitting or standing in one position, walking,
and doing household activities. The plaintiff was attending university five
days a week, six hours per day, with 15 minute breaks between classes. She felt
pain at the end of her classes on 20 to 30 percent of the days. The court
awarded non-pecuniary damages in the amount of $75,000.00.

[193]    
Dilello was the appeal of a jury award. The jury awarded Ms.
Delilo $362,000.00 in non-pecuniary damages, which were reduced by the trial
judge to $281,000.00 and by the appeal court to $200,000.00, to which Ms.
Dilello agreed. Ms. Dilello’s injuries were fractures of the spine, a soft
tissue neck injury, an inner ear injury, and a mild traumatic brain injury.
After the accident, the plaintiff had daily headaches, neck pain, depression,
scalp hyper-sensitivity, decreased manual dexterity, dizziness and cognitive
effects, memory difficulties, and low back pain. It was anticipated she would
suffer from arthritis in five to ten years, which would limit her neck
movement.

[194]    
In Loewen, the plaintiff, age 19 at the time of the accident,
suffered the following injuries:

… mild compression fracture of
the superior end plate of the body of L1 and changes of spondylolisthesis at
the L5-S1 level with five millimetres of anterolisthesis of L5 with respect to
S1. There was also a mild disc bulging at the L3-L4 level that in his
supplementary evidence Dr. Roberts said was not of clinical significance.

[195]     Although Mr.
Loewen was able to return to a labouring job. degenerative changes were predicted
in the future. Two years after the accident, an orthopaedic surgeon found
tenderness at the L3-L4 vertebrae levels. A doctor explained that
spondylolisthesis refers to the forward movement of one vertebrae on the
vertebrae below. Grade one spondylolisthesis means minimal slippage with no
pressure on the nerve roots. The plaintiff was awarded $40,000.00 for
non-pecuniary damages.

[196]     In Erickson,
Mr. Erickson suffered a concussion; a laceration to his hand; a compression
fracture to the T11 and T12 vertebrae; soft tissue injuries to his neck,
shoulder and back; a lacerated tongue; a depressed commuted fracture of the
left frontal bone; and a mild traumatic brain injury to the left temporal and
frontal lobes. The defendant admitted most of the injuries except that the
plaintiff suffered a brain injury. The court found that the physical injuries
had resolved within, at the most, 18 months, and that either he had suffered a mild
traumatic brain injury or, alternatively, he was one of that small subset of
patients who continue to suffer the effects of post-concussion syndrome for an
indefinite period of time. An award of $110,000.00 was made for non-pecuniary
damages.

[197]     When
considering non-pecuniary damages to be awarded to Ms. Schenker, I consider the
factors set out in Stapley v. Hejslet, 2006 BCCA 34.

[198]    
 In considering the amount to be awarded to an injured person, there
must be fairness to both the plaintiff and the defendant. This can be
determined by considering comparable cases. In the end, it is the personal
experiences of Ms. Schenker and the consequences in her life that will
determine the amount assessed for non-pucuniary damages. No two injured persons
are the same. Case law only provides a range of damages. In this case, the most
helpful authorities in assisting the assessment of Ms. Schenker’s non-pecuniary
damages are Tams, X. v. Y., and Caldwell.

[199]    
Ms.  Schenker was 20 years old when she suffered her injuries, which included
spinal fractures in four different areas of the spine. Her pain was initially
severe, but its severity diminished partially over time. At the time of the
trial, she still suffered pain when pursuing her daily or recreational
activities. As a result, she is unable to perform all of her pre-accident
activities in the same manner that she did in the past; and some of those
activities she cannot perform at all. Overall, she has lost the joie de vivre
in which she tackled and participated in her outdoor activities.

[200]    
Ms. Schenker is not a complainer. This is confirmed by the witnesses who
gave evidence. It is also evidenced by the fact that she pursued tree planting
employment with the assistance of pain killers, to the amazement of her friends
and medical experts. For that she should not be penalized, as observed in Giang
v. Clayton, 2005 BCCA 54 at paras. 54-55:

[54] It is not unusual to encounter a case in which a
plaintiff, being more stoical than some injured persons, continues to work
despite the difficulties caused by the tort.

[55] In broad terms, a
plaintiff who continues to work when it would be reasonable for him or her not
to work should not be penalized for his or her grit.

[201]     I conclude
that a fair and reasonable award for non-pecuniary damages is $150,000.00.

Contributory Negligence for Failing to Wear a Seatbelt

[202]     The
defendants seek a reduction of the overall damages awarded to Ms. Schenker for failing
to wear a seatbelt at the time of the accident. According to Ms. Scott, prior
to the accident, Ms. Schenker did not wear a seatbelt when riding in a motor
vehicle. It is not disputed that Ms. Schenker was not wearing a seatbelt at the
time of the accident.

[203]     The defendants
bear the onus on a balance of probabilities to prove that, at the time of the
accident:

a)    the plaintiff failed
to wear a seatbelt;

b)    a seatbelt was
available and in working order in the motor vehicle; and

c)    
the plaintiff’s injuries would have been prevented or lessened had she
been wearing a seatbelt.

[204]     The
wearing of a seatbelt in British Columbia while riding in a motor vehicle has
been required by law for many years.

[205]     In
response, Ms. Schenker cites the following case law:

Gagnon v. Beaulleu, Fraser Valley Frosted Foods Ltd. and
Jones, [1976] B.C.J. No. 1313 (S.C.);

Terracciano (Guardian ad litem of) v. Etheridge,
[1997] B.C.J. No. 1051 (S.C.);

Johnson v. Mailloux, [1992] B.C.J. No. 693 (S.C.);

Plasway v. Abraham, [1993] B.C.J. No. 172 (S.C.);

Koopman v. Fehr (B.C.C.A.), [1993] B.C.J. No. 1405
(C.A.);

Smith v. Frees, [1994] B.C.J. No. 640 (S.C.);

Naidu (Guardian ad litem of) v. Welter, [1995] B.C.J.
No. 2176 (S.C.);

Harrison v. Brown, [1985] B.C.J. No. 2889 (S.C.); and

Claiter v. Rose, 2004 BCSC 50.

[206]     The
majority of these cases were decided in the 1990s. Gagnon was decided
even earlier in 1976. Claiter was decided in 2003.

[207]     The
following principles emerge from the cases cited by Ms. Schenker:

1)    There must be
evidence that wearing a seatbelt would have prevented or lessened the injuries
in each particular motor vehicle accident. In Gagnon, Mr. Gagnon, while
not wearing a seatbelt as a passenger in a motor vehicle, was thrust into the
windshield and dashboard when the car he was riding in collided into the
vehicle in front of him. Mr. Gagnon suffered serious injuries. Mr. Justice
Fulton concluded that had Mr. Gagnon been wearing a seatbelt, his injuries
would have been less. Mr. Justice Fulton had the benefit of expert evidence to
assist him in coming to that conclusion. He also injected some common sense into
making that decision.

2)    In Terracciano,
the court referred to the principle in Gagnon. Madam Justice Saunders
stated that the evidence that must be provided must not be general in nature,
but must relate to the actual injury or injuries sustained by the plaintiff. In
Terracciano, despite expert evidence, Saunders J. could not conclude
that the injuries were caused inside the vehicle by hitting the roof or as a
result of having been thrown out of the vehicle. She concluded that the
plaintiff could have sustained his injuries even while wearing a seatbelt;

3)    In Johnson,
Mr. Johnson suffered a broken neck when riding in a vehicle as a passenger. The
vehicle rolled a number of times. He remained in the vehicle. He suffered
serious injuries. There was expert evidence presented to the court
demonstrating that wearing of a seatbelt would not have prevented Mr. Johnson
from making contact within the interior of the car. Given the nature of the
fracture to his neck and vertebrae, it could not be said that a seatbelt would
have reduced the force on Mr. Johnson’s head. Madam Justice Saunders concluded
that the defendant had not met the onus;

4)   
In Plasway, Mr. Justice Tysoe found that Mr. Plasway was not
wearing his seatbelt. Expert evidence was before the court. In rejecting the
expert’s testimony, Mr. Justice Tysoe stated:

[35] … The most that I.C.B.C.’s expert could say was that
the risk of Mr. Plasway suffering a cervical fracture would have been lessened
if he had been wearing a seat belt. This is not the same as saying that Mr.
Plasway would not have suffered a cervical fracture or would not have suffered
as severe an injury if he had been wearing a seat belt and that is what the
Defendants must show on a balance of probabilities in order to satisfy the
onus.

5)  In Koopman, there were four
plaintiffs who suffered injuries in a motor vehicle accident. The plaintiffs
appealed liability, which was apportioned equally between the two drivers of
the vehicles involved in the accident. Mr. MacDougall, at trial, was assessed
20 percent contributory negligence for riding in the back of a pick-up. The
court changed the apportionment of liability as against the two drivers. Mr.
Justice Hollinrake concluded that had Mr. MacDougall been in the cab of the
truck and restrained by a seatbelt, he would not have suffered his injuries:

[12] … The injuries here are soft tissue ones in the neck
and back. Whether or not those injuries are more severe because of MacDougall
riding unrestrained in the box of the pick-up truck I think must be answered by
a medical opinion and in this case, it has not. That being so, in my opinion,
the finding of 20 percent contributory negligence on the part of MacDougall
cannot stand and the appeal must succeed on this issue.

[208]    
The court may in some cases use its common sense: Lakhani (Guardian
ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.). Similarly, in Smith,
Mr. Justice Parrett stated that engineering evidence is not always required.

[209]    
In Naidu and Claiter, there was no medical evidence or
opinion which stated that the injuries suffered by the plaintiff were made
worse or would have been prevented had the plaintiff used his seatbelt. No
contributory negligence was found.

[210]     Ms. Scott
has not met the onus. She has not established that the seatbelt available for
use by Ms. Schenker was working properly. Further, she has not established, by
presenting any evidence, that Ms. Schenker’s injuries would have been prevented
or lessened had she been wearing a seatbelt. I find that the seatbelt defence
is not proven.

LOSS OF FUTURE EARNING CAPACITY

Positions of the Parties

[211]     Ms.
Schenker seeks $450,000.00 in satisfaction of her claim for loss of future earning
capacity. She argues that many of the occupations she was considering before
the accident, she is now completely unable to consider or she is restricted in
considering them.

[212]     Ms. Scott
argues that Ms. Schenker has not met the burden of proving a “substantial
possibility” of a “future diminished income earning capacity.” Ms. Scott
submits that loss of future earning capacity should be awarded in the range of
$50,000.00.

Discussion

[213]    
In Rosvold v. Dunlop, 2001 BCCA 1, Madam Justice Huddart stated
that compensation under this heading is not for a loss of projected earnings (a
mathematical approach), but rather for the impairment of earning capacity as a
capital asset. She commented that past earnings may be a useful fact to
consider, but they are not the only fact that should be considered. She
summarized the case law as follows:

[10] The trial judge’s task is to assess the loss on a
judgmental basis, taking into consideration all the relevant factors arising
from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at
para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may
be relevant can be found in Parypa v. Wickware, supra, at para. 31; Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

1. whether the plaintiff has been rendered less capable
overall from earning income from all types of employment;

2. whether the plaintiff is less marketable or attractive as
an employee to potential employers;

3. whether the plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

4. whether the plaintiff is less valuable to himself as a
person capable of earning income in a competitive labour market.

[214]    
The Court of Appeal, in Pett v. Pett, 2009 BCCA 232, concluded
that in coming to an award for loss of earning capacity, the trial judge must
explain how that figure was determined. Mr. Justice Hall referred to Madam
Justice Saunders’ comments in Lines v. W & D Logging Co. Ltd., 2009
BCCA 106 as follows:

[57] … the plaintiff’s intentions and factors that weigh
both in favour of and against that achievement, and the other is the projection
of that earning level to the plaintiff’s working life, taking into account the
positive and negative vagaries of life. From these two major components must be
applied an analysis that produces a present value of the loss, adjusted for all
appropriate contingencies.

[215]     Mr.
Justice Hall concluded that Lines sets out a “helpful framework for a
court to follow in fixing a measure of damages for future loss.” He concluded
that whether it is referred to as the loss of a capital asset or some loss of
future earnings, “the essential matter that engages the attention of a court
making an assessment in this area is to endeavour to quantify the financial
harm accruing to the plaintiff over the course of his or her working career”:
para. 19.

[216]     In Pett,
Mr. Justice Hall stated that in determining an amount for a loss of earning
capacity, it is useful to consider the amount the economists have determined
and what assumptions they have made. In addition, courts should consider the
work that the plaintiff should be considering, the employment opportunities of
the plaintiff, the effect that those injuries have on career opportunities, and
whether the plaintiffs’ long term earnings would be impaired by the injuries.

[217]     In Pett,
the court recognized the difficulties of assessing a young person’s earning
capacity versus that of a person who is older and established in their
employment or career. In assessing this figure, Mr. Justice Hall warned that
the court should adopt a “cautious approach” when dealing with younger
plaintiffs, because of the long time span.

[218]     I have
already found that Ms. Schenker’s work and recreational activities have been
impacted as a result of this accident.

[219]     Ms.
Schenker, at the time of the accident, was 20 years old. She had not finished
high school, but had completed a year of high school before the accident. She
then went on after the accident to finish high school and some college courses.

[220]     At the
time of the accident, Ms. Schenker had worked three tree planting seasons. This
is hard work. She has worked since her early teens in part-time and entry level
jobs to support herself.

[221]     Her income
tax returns reveal and she testified that tree planting was the best-paying job
she had. She went back to tree planting in 2010 and 2011. As a tree planter for
four years, her average earnings, including employment insurance, was
$28,725.00 per year (rounded). For the last three years, she averaged
$31,200.00 (rounded).

[222]     Given her
age and her future interests, her desire for education and enjoyment of
learning, tree planting was not to be her career path even if she had not been
injured. Before the accident, she had considered becoming a helicopter pilot or
working in tourism, or as a carpenter. She was well aware that she wanted to
work outdoors, not with people, and doing something physical. That is as far as
she got before the accident. These careers that Ms. Schenker considered
required further education and training.

[223]     At the
request of Ms. Schenker’s counsel, Derek Nordin, a vocational consultant,
prepared a report dated March 15, 2012. Ms. Schenker was interviewed and tested
on December 13, 2011. His opinion in the report is based on his interview of
Ms. Schenker, the test results, and the reports of Drs. McKenzie, Koo, and
Chevalier, and Ms. Shannon Smith. In addition, he had Ms. Schenker’s tax
information from 2004 until 2008, her school records, and her transcript from
Northern Community College. Mr. Nordin did not have the benefit of any of the
defendants’ expert evidence, as those reports had not been written.

[224]     Dr. Powers,
at the request of Ms. Scott’s counsel, prepared two reports dated July 30, 2012
and September 5, 2012, respectively. Dr. Powers is also a vocational
consultant. Dr. Powers had Ms. Scott’s counsel’s information as to the injuries
that Ms. Schenker sustained and the report of Ms. Smith dated February 20, 2012
and April 23, 2012.

[225]    
Both Mr. Nordin and Dr. Powers concluded that Ms. Schenker
intellectually functions in the high/average range and is capable of pursuing
further education, including an undergraduate degree. Both Dr. Powers and Mr.
Nordin identify Ms. Schenker’s interests. These are similar, if not the same.
Ms. Schenker’s areas of interest are animal service, athletic/sports,
electronics, manual/skilled trades, mechanical/fixing, medical service, and scientific
research/development. Under each of these headings in Mr. Nordin’s report are
specific occupations within Ms. Schenker’s areas of interest. Mr. Nordin states
that Ms. Schenker’s interests are similar to those of individuals who work as
conservation officers, fire fighters, forest rangers, park rangers, biologists,
medical laboratory technicians, physical therapists, physicians, psychologists,
veterinarians, librarians, occupational therapists and registered nurses. In
Mr. Nordin’s report, he identifies occupations and careers that she would be
unable to pursue due to the injuries she sustained in the accident. He states:

I do not believe Ms. Schenker
could sustain sedentary (i.e. seated) employment on a full-time basis as a result
of the 2009 accident sequelae; … As such, this effectively excludes Ms.
Schenker from clerical occupations as well as transportation-related
occupations such as piloting or bus driving (for example transporting
handicapped individuals on Handy Dart).

[226]    
He gives examples of employment and careers that Ms. Schenker could have
worked in full-time except for the accident. He says:

Absent significant accommodation,
I do not anticipate Ms. Schenker will be able to work full-time in these
occupations.

[227]     These
occupations are:

·      
carpenter;

·      
automotive service technician;

·      
bus driver;

·      
licensed practical nurse;

·      
letter carrier;

·      
ambulance attendant;

·      
telecommunications installation and repair worker;

·      
physiotherapist;

·      
registered nurse; and

·      
police officer.

[228]     Earnings
for these occupations range from $33,554.00 to $74,366.00. In addition to the
requirement of accommodations from her employer, which would make it difficult
for her to sustain full-time employment, he is also of the opinion that Ms.
Schenker would be at risk due to pain. This would result in more lost time at
work compared to non-injured colleagues.

[229]     Mr. Nordin
also questions whether Ms. Schenker would be able to pursue a degree in
geology. Although she is intellectually capable and it is an interest of hers,
the resulting pain and immobility from sitting for prolonged periods of time
may require her to complete this degree over a longer period of time. This will
delay her entry into the workforce and impact her earnings.

[230]     Dr.
Powers, in his report, expands the occupations available to Ms. Schenker.
However, they are similar in nature to those outlined by Mr. Nordin.

[231]     Dr. Powers
relies on Ms. Smith’s opinion, which arose from the work evaluations she did on
Ms. Schenker. Ms. Smith, in turn, relies on Dr. Chevalier’s opinion. They are
worth repeating. Ms. Smith says that Ms. Schenker is capable of full-time work with
limitations: sitting, no rigid sitting, the ability to change positions as
necessary and walk around and stand, very limited periods of sustained mild to
extreme stooping, the need for ergonomic supports, and very limited static
standing and sitting.

[232]    
Ms. Smith says, and I repeat:

… Ms. Schenker has demonstrated
the capacity to “push through” her symptoms and function at a very high
level on a short-term basis, however her long-term durability in a given job,
and her ability to manage her symptoms while maintaining a reasonable overall level
of function (i.e. in school, home management, and leisure/recreational
activities, in addition to work) will depend on the careful selection of jobs
with physical demands that are consistent with the abilities and limitations
outlined in this report.

[233]    
Dr. Chevalier states:

… I remain of the opinion that
this young woman will remain impaired to some degree by the injuries previously
described in this report. The exact degree of this impairment is yet to be
determined.

[234]    
Dr. Richardson is of the opinion that Ms. Schenker is capable of
full-time work, subject to the limitations in Ms. Smith’s report. Dr.
Richardson comments on Ms. Schenker’s ability to work full-time:

… will depend completely on:

1.         The exact nature of the work she undertakes.

2.         Whether or not workplace accommodations can be
made.

3.         Ms. Schenker’s ability to
tolerate the symptoms generated by that work.

[235]     Dr.
Powers’ opinion is as follows:

Chronic pain and physical
limitations, though they may persist for the short term, will likely not hinder
her ability to successfully complete post secondary education programs. Further
in my opinion, she is suited for a wide variety of occupations, many of which
are in the light to select medium strength work demand category as determined
in the February 20, 2012 FCE.

[236]     It is
correct that Ms. Schenker is suitable for light/medium strength work, but there
are a number of limitations that Ms. Smith and Dr. Richardson set for that
work.

[237]     Ms.
Schenker’s choice to work as a tree planter before the accident met her desire
to be outdoors and satisfy her financial needs. As I noted above, this was only
a temporary occupation. She had not settled on a career path. However, given
that she took courses to complete her high school and has continued that
pursuit after the accident, it is likely that had the accident not happened she
would have pursued some career-oriented training. Ms. Schenker testified that
she enjoyed learning, and the marks she attained in pursuing her high school
diploma, together with the testing by Dr. Powers and Mr. Nordin, confirmed that
she has strong academic abilities. She would indeed be able to pursue a
university degree.

[238]     At the
time of trial, Ms. Schenker was working as a forestry technician, which
involved her walking and working outdoors. She works five days a week. She
believes it is a job that she cannot do in the long term, as on weekends she
finds herself feeling very tired. She said that she had to save money for
school; she intends to go back in January 2013, which will consist mostly of
upgrading in the sciences and maths. She is also considering taking geology,
which she will be able to pursue after upgrading her sciences.

[239]     I conclude
that although Ms. Schenker may be able to complete two years of geology at
school where she lives and then go to the University of British Columbia for
the final two years, given her difficulties with sitting through lectures and
labs, it may be that she may have to take an extra year in completing her
degree in geology. Ms. Kroesin, a fourth-year University of Victoria student
taking a Bachelor of Science in environmental studies, testified to the long
periods spent sitting in labs and classes. I have also concluded that but for
the accident, Ms. Schenker might have taken other training or an
apprenticeship. During this period, she is likely to have been earning income.

[240]     I conclude
that Ms. Schenker will be able to work full-time. However, there are a number
of limitations that may cause her to accept something less than full-time
employment. In other words, an employer may not be prepared to accept those
limitations. Ms. Schenker is likely to be competing with other potential
candidates who do not require such limitations. Accordingly, she may be at a
disadvantage since she is less marketable and unattractive to an employer in
this respect.

[241]     There also
can be no dispute that Ms. Schenker is less capable of earning income from all
kinds of other employment that she was capable of performing before the
accident. All of these factors may cause her to perceive herself as less
capable of earning income in the competitive labour market, which may, in turn,
ultimately undermine her confidence.

[242]     With
respect to calculating the capital loss, Mr. Hilderbrand, an economist who
provided expert evidence for Ms. Scott, does not dispute Mr. Benning’s
technical calculations; he did, however, disagree with Mr. Benning’s
assumptions. He questions why Mr. Benning chose nursing as a “without accident”
occupation when there were other occupations that Ms. Schenker could have
filled.

[243]    
Mr. Hilderbrand notes that Mr. Benning concluded that Ms. Schenker had a
high interest in other occupations. He makes this statement:

For individuals who have not
trained extensively towards a particular occupation, it is standard practice to
rely upon education-based earnings projections. Education-based projections may
be more representative of the wide variety of occupations available to the
Plaintiff. Education-based projections also allow for the possibility of future
career change and promotion.

[244]    
Further, Mr. Hilderbrand takes issue with Mr. Benning’s assumptions that
Ms. Schenker will work part-time. He says that Mr. Benning’s loss of earnings
are over-stated. He is critical that Mr. Benning did not provide projections
that could be used to “estimate the loss assuming graduation (absent-accident
or with-accident) between January 1, 2015 and January 1, 2018.”

[245]     He says
that if Mr. Benning’s assumption that Ms. Schenker will be restricted to
part-time work (that is, 50 percent or 75 percent of full-time work) is
incorrect, and she remains capable of full-time work, then “Mr. Benning’s loss
estimates will be too high.” I find that Ms. Schenker is able to work
full-time, but with significant limitations that are more likely than not to
cause a loss of income.

[246]     Mr.
Hilderbrand makes his own assumptions based on Ms. Schenker completing a
diploma college course of one to two years duration by June 1, 2013, or a
Bachelor’s degree by January 1, 2015. He then does a summary of earnings
projections based on Ms. Schenker attending a post-secondary non-university and
obtaining a Bachelor’s degree. He then takes the difference between those
projected earnings, which he concludes should be $41,537.00.

[247]     Ms. Scott
argues that Ms. Schenker has not proved a substantial possibility of a future
event leading to a loss of income: Abdalle v. British Columbia (Minister of Public
Safety and Solicitor General), 2012 BCSC 128.

[248]     In Abdalle,
Mr. Abdalle suffered facial injuries, soft tissue injuries of the neck and
back, and a concussion. He was able to return to work within four months of the
accident. Mr. Abdalle maintained the same employment after the accident as he
had before the accident. No award was made for loss of capacity.

[249]     In Steward
v. Berezan, 2007 BCCA 150, Mr. Steward, age 55, was a realtor.
Early on in his life he was a journeyman carpenter, a trade that he was never
going to resume. It was made clear by the plaintiff that his claim for
diminished earning capacity was in relation to that of a realtor. The court
found that the $50,000.00 ordered by the trial judge was in relation to that of
a carpenter and not a realtor. The award of $50,000.00 for diminished earning
capacity was struck down.

[250]     Mr.
Hilderbrand does not take into consideration Ms. Schenker’s youth. At the time
of the accident, she had not yet chosen her career path. Mr. Hilderbrand also
did not take into consideration that, without her injuries, a degree in geology
or geography would take four and a half years (this was Ms. Kroesin’s evidence).
Nor did he take into consideration that Ms. Schenker would have to upgrade her
education, a process that she was engaged in at the time of the trial. Lastly,
there is no consideration for the likely prospect that, as a result of the injuries,
she would take longer to complete her degree because of the time required for
sitting at lectures and labs.

[251]    
In Palmer v. Goodall (B.C.C.A.), [1991] B.C.J. No. 16 (C.A.),
Madam Justice Southin stated:

But with comparatively young plaintiffs – and I do not
propose to define "comparatively young" save to say that 31 is well
within the description – the jury must be told that it is for the plaintiff to
show the extent to which his ability to earn a living as it existed before the
injury has been impaired.

In many cases, a plaintiff may
show that in order to earn as good a living as before i.e. to restore his
earning capacity he requires retraining. The cost of retraining, if it is a
reasonable proposition, is a proper element of compensation.

[252]     Ms. Schenker’s
loss is that of a loss of a capital asset. Considering the case law in Pett,
Stone, and Slowcombe, and their assessments of an injured
person similar in age to Ms. Schenker, I award the sum of $400,000.00 for loss
of earning capacity.

COST OF FUTURE CARE – FUTURE CARE

[253]     The
plaintiff must establish that there is a “real and substantial risk of
pecuniary loss “in order to receive damages under this heading”: Travis v. Kwon,
2009 BCSC 63.

[254]     In order
to prove a future care cost, it must be medically justified and reasonable: Milina
v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.).

[255]     Ms.
Schenker is seeking $120,000.00 for cost of future care. Ms. Scott proposes
that it be satisfied with an award of $70,000.00 (rounded). This latter figure
assumes that she purchases a detached dwelling, otherwise the figure would be
$41,369.00.

[256]     Ms.
Schenker’s counsel, in his written submission, drafted a schedule comparing the
findings and amounts of Ms. Smith and Ms. Wong.

[257]     The
medical evidence confirms that Ms. Schenker’s back injuries are permanent. Dr.
Richardson recommends that the best rehabilitation she can participate in “is a
home program of care and stretching.”

[258]     Dr. Koo
recommends physiotherapy, chiropractic manipulation, massage therapy, and
acupuncture for relief of myofascial pain. Dr. Koo describes them as “pain
relieving strategies.” They are limited in duration and they are preferable
because they do not have the same “potential side effects of medication.”

[259]     I accept
the recommendations of Ms. Wong and Ms. Smith regarding physiotherapy, massage
therapy, chiropractic care, one session of vocational counselling, occupational
therapy, some housekeeping and seasonal housekeeping, and some yard and home
maintenance. In addition, it is reasonable for Ms. Schenker to have adoptive
aids for home and school, and to have a gym membership after age 33. It was
noted that Ms. Schenker, according to Ms. Smith, is able, as a result of her
recreational activities, to meet that need. I accept the recommendations of
both Ms. Wong and Ms. Smith that occupational therapy is necessary for Ms.
Schenker for both schooling and her work.

[260]     Both Ms.
Wong and Ms. Smith also recommend psychological counselling. This accident was
horrendous and the injuries severe. Also, I heard evidence from Ms. Schenker
that she had flashbacks regarding the accident and difficulty being a passenger
in a motor vehicle. She now owns her own car and is driving. Overall, however, I
did not detect that she was in need of psychological counselling.

[261]     Ms. Smith
and Ms. Wong differ in opinion on housekeeping and seasonal housekeeping. Ms.
Wong says that ongoing housekeeping is not a need, although she recognizes that
seasonal housekeeping is necessary to meet the need for heavy lifting. I
recognize the need for home and yard maintenance.

[262]     At the
time of trial, Ms. Schenker was living with her partner, Ms. Scott, and they
had been living together since the summer of 2011. Ms. Schenker was asked
whether she intended to have children. She seemed surprised with this question.
She stated that she would like to have children, but that was a matter for the
future. Dr. Koo states that should Ms. Schenker become pregnant, the back pain
is likely to increase and impose limitations on her. I have concluded that, as
raised by Ms. Scott, this is speculative and ought not to be considered. I have
taken that possibility into consideration in my award for non-pecuniary damages.

[263]     I award
Ms. Schenker $80,000.00 for future care costs.

PAST LOSS OF WAGES

[264]     As a
result of the accident, Ms. Schenker lost $5,000.00 in lost wages. On the day
of the accident, she was going to Vancouver to work for Nomad Kitchens. I find that
the amount that she lost in 2009 was $5,000.00. To award more for losses
relating to Nomad Kitchen, there should have been more evidence of Ms.
Schenker’s employment history with Nomad Kitchens. Her income tax returns do
not reflect earnings from Nomad Kitchens.

[265]     Ms.
Schenker seeks losses that she suffered as a result of working in New Zealand. She
travelled to New Zealand for a holiday, however, not to work. Although she did
work, she found it too strenuous. I am not prepared to order anything more than
$5,000.00 for past loss of wages.

LOSS OF HOUSEKEEPING CAPACITY

[266]     Loss of
housekeeping capacity is a separate and distinct head of damage: Kroeker v.
Jensen, [1995] B.C.J. No. 724 and Deglow v. Uffelman, 2001 BCCA 652.

[267]     I agree
with Ms. Schenker’s submission that, based on the evidence that she has given,
everything she does is now harder to do. She testified that snow shovelling
took her much longer to do. Also, standing at the counter in the kitchen and
bending and scrubbing were very difficult for her, and are not done in the
manner as before the accident.

[268]     I award
Ms. Schenker $15,000.00 for loss of housekeeping capacity.

SPECIAL DAMAGES

[269]     These have
been consented to in the amount of $3,411.95.

TAX GROSS-UP

[270]     If the
parties cannot agree as to the amount of tax gross-up, then they can address
this issue before me at a later date.

HEALTH CARE COSTS RECOVERY ACT

[271]     It was
brought to the court’s attention by plaintiff’s counsel that there is a claim
outstanding by the British Columbia government under the Health Care Costs
Recovery Act, S.B.C. 2008, c. 27. The total health care being sought,
subject to the additional amounts unknown as of January 16, 2012, is
$28,892.89. I find that this is the amount that was paid up to that date.

COSTS

[272]     The
plaintiff will have her costs as against the defendant, Ms. Scott, party/party,
Scale B, subject to counsel making submissions relating to those costs. The
defendants may appear before me and present arguments as it relates to the
defendant and third party costs of Ms. Shackelly.

SUMMARY

[273]     The
plaintiff is awarded, as against the defendant, Ms. Scott:

1)    General damages
– $150,000.00

2)    Past loss of
income – $5,000.00;

3)    Future loss of
earning capacity – $400,000.00;

4)    Cost of future
care – $80,000.00; and

5)   
Special damages – $3,411.95.

“H.C.
Hyslop J.”

HYSLOP
J.