IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: M116176

Registry:
New Westminster

Between:

Angela Dunn

Plaintiff

And

Susanna Lyon

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
Ms. Dunn was a passenger on a motorcycle that collided with a vehicle
driven by the defendant Susanna Lyon on August 4, 2008 in Delta, British
Columbia.  Ms. Lyon filed an appearance in this action, but did not
defend.   The Insurance Corporation of British Columbia (“ICBC”) did not
dispute that the accident was caused by the negligence of Ms. Lyon but the plaintiff
and the Third Party disagree about the quantum of damages that should be
awarded to compensate Ms. Dunn for the effects of the injuries caused by the
Defendant’s negligence.

FACTS

[2]            
Ms. Dunn was born in Kelowna in October 1969; she was 38 when the
accident happened and 42 at time of trial.  She grew up in the Kelowna area. 
Ms. Dunn left high school after completing Grade 10.  She did not testify
what year that was, but assuming she was 16 when she completed Grade 10, it was
probably 1985.  She testified that she left school because she was not
interested in her classes and had started working part-time.

[3]            
Ms. Dunn did a variety of jobs after leaving school including working in
pizza restaurants and on the assembly line at a fruit packing plant.   At some
point Ms. Dunn took some courses at “Compu College”.  There is a reference
in one of the medical reports to Ms. Dunn taking courses to be a bank teller,
but the evidence does not indicate whether she completed the training.   There
is no evidence that Ms. Dunn ever worked in banking.

[4]            
In about 1989, when Ms. Dunn was 20 years old, she moved to the Lower
Mainland where she supported herself by working as a server in lounges,
showrooms and strip clubs.  She recalled that she worked at the College Place
Hotel for a couple of years, and at the Marble Arch Hotel for about two and a
half years, but also worked at a variety of other places.  She recalled that
she worked at the Flamingo Hotel in Surrey for a while, generally two to four
shifts a week.  The shifts were generally six to seven and a half hours long
and Ms. Dunn earned minimum wage, plus tips in the range of $50 to $100 a
shift.

[5]            
Ms. Dunn testified that waitressing is a physical job because a server
is expected to carry heavy trays and clear and clean tables.  Tammy Heeps, a
friend of Ms. Dunn’s who was the assistant manager at a Club where Ms. Dunn
worked in the mid-1990s, testified that Mr. Dunn was an outstanding waitress;
that she was professional, punctual, pleasant, outgoing and willing to work.

[6]            
At some point in the 1990s, Ms. Dunn quit waitressing for a while and
leased a “coffee truck”.  This business involved driving to a central location
in the early morning; loading the truck with food products and then driving to
construction sites and office buildings to sell coffee and fast food.  Ms. Dunn
testified this business was profitable at first but eventually failed, and she
gave it up after about 18 months.

[7]            
At some point in the 1990s, Ms. Dunn took a job as a server at the
Sidetrack Club where she worked for about two and a half years.  Ms. Dunn’s
testimony suggests this was in the late 1990’s, but Tammy Heeps testified that
Ms. Dunn worked at the Sidetrack Club in the mid-1990s, probably between 1995
and 1997.  In any event, during at least part of the time Ms. Dunn was working
at the Sidetrack Club, she was also working at the Flamingo Hotel.

[8]            
While working at the Sidetrack Club, Ms. Dunn met Edwin Bennett, who
lived nearby and was a customer of the Club.  After dating Mr. Bennett for a
time, she moved in with him; Ms. Dunn recalled they began living together in 1999
or perhaps 2000.  She eventually stopped working at the Sidetrack Club because
her hours of work there were sometimes the same as her scheduled shifts at the
Flamingo Hotel.  Later, she also gave up her job at the Flamingo Hotel after
which Mr. Bennett supported her.

[9]            
Ms. Dunn testified that Mr. Bennett did not expect her to work.  He
owned a bookstore with his parents; and also owned a portable-fence business in
Yellowknife, N.W.T.  During the time that they were a couple, Mr. Bennett and
Ms. Dunn travelled together often, travelling to Yellowknife by air or car
a couple of times each year, but also making trips to Cuba, Montreal and the
Okanagan; once to Europe; and several times to Mexico.  Most of the time the
couple lived in various locations in the Lower Mainland but they also lived in
Kelowna for a time.

[10]        
Ms. Dunn testified that she and Mr. Bennett changed residences often
while they were living together and also had several break-ups.  Following
these break-ups, Ms. Dunn  generally moved out of whatever residence she had
been sharing with Mr. Bennett and stayed temporarily with friends until she and
Mr. Bennett reconciled and she moved back to live with him.  Ms. Dunn estimated
that she and Mr. Bennett had lived together about 70% of the time during the
years 2000 to early 2008.

[11]        
Although Ms. Dunn worked very little if at all in most of the years
between 2000 and 2008 – the years that she and Mr. Bennett were together as a
couple – she testified that she did work for a few months at a place called the
Brownsville Pub.  She thought that this was in 2005, but Ms. Dunn did not
report any employment income on her 2005 tax return, so she may be mistaken
about the year.  Ms. Dunn recalled that she also worked for a few months at the
Edgewater Hotel in Kelowna when the couple were residing in that city.

[12]        
Ms. Dunn testified that she worked for four months at the Tidewater Pub
in Delta in 2007.  She was supposed to work as a waitress, but instead ended up
working at a liquor store associated with the Pub.  She was paid minimum wage,
which she recalled was $8.25 at that time, plus tips of about $20 a shift.  She
was laid off this job in October 2007.  She said that after that she did not
search for work because she was helping Mr. Bennett look after his parents.

[13]        
Ms. Dunn’s income tax summaries for the tax years 2004, 2005, 2007 and
2008 are in evidence and are summarized in the table that follows.  Ms. Dunn
did not testify whether she reported some, all, or none of the income she
earned in tips.  She did not claim to have earned any income in 2006, the year
for which no tax return is in evidence.

[14]        
Ms. Dunn testified in direct examination that although she continued to
live with Mr. Bennett most of the time until 2008 or 2009; as early as 2003 she
had begun thinking about becoming independent of Mr. Bennett and supporting
herself.  She testified that by 2007 she was unhappy in her relationship with
Mr. Bennett and felt that he was exercising too much control over her and that
she could not make decisions on her own.  However, she continued to live with
Mr. Bennett; moved with him to different residences several times in 2007; and
was still living with him until she went to Yellowknife in February or March
2008.

[15]        
Ms. Dunn testified that by the beginning of 2008 she had decided that
she would break off her relationship with Mr. Bennett, relocate to Yellowknife,
find work there and begin to live independently.   This testimony is not
entirely consistent with statements Ms. Dunn made to Melanie Bos, the
occupational therapist retained by plaintiff’s counsel to carry out a
functional capacity evaluation of Ms. Dunn in August 2011.  According to Ms. Bos’s
report, Ms. Dunn gave her the following information:

Social Status

Ms. Dunn reports she separated
from her boyfriend at the time of the accident….

Emotional Status:

Ms.
Dunn reports that she has had difficulty adjusting since the accident.  She stated
“the accident took away part of my life”.  She reports she was 38 years old
when the accident occurred and involved in a long-term relationship.  She
states that at that time she was hopeful the relationship would move forward
and she was considering having children with her boyfriend.  After the
accident, she broke off her relationship due to stress…

[16]        
In cross-examination at trial, Ms. Dunn was asked to explain this
apparent contradiction between her testimony and the information she had given
to Ms. Bos.  To the extent I understood her explanation, it was that her head
and her heart were telling her different things in 2008; in other words, that
she was conflicted about whether she wanted to end the relationship with Mr.
Bennett.   Later in cross-examination she appeared to concede that her
relationship with Mr. Bennett had not ended before the accident happened.

[17]        
I conclude that Ms. Dunn’s relationship with Mr. Bennett had not
entirely come to an end when the accident happened.  Ms. Dunn does not claim
that the demise of the relationship was caused by the accident.

[18]        
In February or March 2008, Ms. Dunn, Mr. Bennett and a male friend of
Mr. Bennett’s drove together to Yellowknife.  Ms. Dunn testified she had a
couple of bags of clothing with her in the vehicle.  She said her intention was
to remain in Yellowknife, get a job, and live independently.  She testified
that Mr. Bennett knew her plan and was “okay” with it.  In Yellowknife,
Mr. Bennett took Ms. Dunn to the home of a woman whom Ms. Dunn had met on earlier
trips to Yellowknife and where Ms. Dunn intended to reside.  Mr. Bennett gave
Ms. Dunn money to pay her rent.

[19]        
Ms. Dunn testified that after arriving in Yellowknife she and Mr.
Bennett saw each other only by accident during the few days he stayed in
Yellowknife; and that although they did encounter each other at pubs or the
homes of mutual friends when Mr. Bennett returned to Yellowknife on later
occasions in 2008, they did not meet by pre-arrangement.

[20]        
Ms. Dunn testified that during the first month she was in Yellowknife
she was not working.  She said she spent her time visiting with friends and
socializing.  She did go to pubs where she asked about the availability of
work.  Ms. Dunn testified that she had some savings; and she also borrowed
money from Mr. Bennett and from her parents.

[21]        
At a pub in Yellowknife Ms. Dunn met a woman named Dawn Robinson, who
did housecleaning and janitorial work.  Through Ms. Robinson, Ms. Dunn got some
work cleaning homes, offices and on one occasion, a construction site.  She
testified that she worked for Ms. Robinson approximately eight times and was
paid $20 an hour in cash.  Ms. Dunn did not have a pay slip or other evidence
of this employment and did not declare any employment income on her 2008 tax
return so the exact amount she earned is not in evidence.  I conclude from Ms.
Dunn’s failure to declare the income that her earnings from this employment
were nominal.

[22]        
Ms. Dunn testified that the cleaning work she did in Yellowknife was not
heavy.  She said that she did dusting, vacuuming, sweeping, wiped windows and
took out garbage.   Ms. Dunn testified that Ms. Robinson told her that there
would be more work available later because she expected one of her regular
employees was going to be leaving.

[23]        
In July 2008, Ms. Dunn returned to the Lower Mainland.  The evidence is
unclear as to whether she got a ride from Yellowknife with a friend of Mr.
Bennett’s or whether she and Mr. Bennett made the trip together.  On her
arrival she stayed with Mr. Bennett at the apartment they had shared before she
went to Yellowknife.  Ms. Dunn testified that she came to the Lower Mainland
because Mr. Bennett wanted her to go on a motorcycle trip with him to Vancouver
Island.  Ms. Dunn wanted to visit with other friends also, and she testified
she intended to retrieve more of her belongings from Mr. Bennett’s apartment. 
Her intention was, she testified, to return to Yellowknife after the motorcycle
trip, and work there as a cleaner.

[24]        
About five days after Ms. Dunn arrived in the Lower Mainland, she and
Mr. Bennett took a three-day trip to Vancouver Island on Mr. Bennett’s
motorcycle.  On the evening of August 4, 2008, they returned to the Lower
Mainland and were heading home when the accident that led to this lawsuit
happened.

[25]        
Ms. Dunn testified that they had stopped at a three-way stop and had
just started to move forward when the defendant’s vehicle pulled across the
road in front of the motorcycle.  The motorcycle struck the side of the
defendant’s vehicle, catapulting Ms. Dunn onto her knees on the roof of the
defendant’s car and then over the car and onto the roadway.  She testified that
she landed on her “butt”.

[26]        
Ms. Dunn was transported by ambulance to Surrey Memorial Hospital where
x-rays were taken; and then a few hours later she was transferred to Vancouver
General Hospital (“VGH”) after pelvic x-rays indicated she had multiple
fractures.  At VGH, her care was managed by Dr. O’Brian, an orthopedic
specialist.  Ms. Dunn remained at VGH from August 5, 2008 until August 15, 2008
when she was discharged.

[27]        
No medical witness testified at trial and the language used to describe
Ms. Dunn’s injuries in the clinical records and in the three expert
reports is technical, but counsel agreed that the primary injury can be most
briefly described as multiple pelvic fractures.  The fractures and other
injuries are summarized on page 4 of Ms. Bos’s report as follows:

– left superior and inferior
pubic rami

– right pubic tubercle

– left sacral ala

– left L5 transverse process

– widening of the left SI
joint

– displaced bony fragment in
the left S3 sacra foramina

– right anterior acetabular
rim fracture

–
haematomata involving piriformis and iliopsoas muscles

[28]        
I infer that none of the fractures, although serious, involved
significant displacement, as Dr. O’Brian decided surgery was not required.  Ms.
Dunn was admitted to an orthopedic ward for bed rest although permitted to sit
up in a chair provided that she did not put weight on the left side of her
pelvis.  Her pain was treated with a variety of drugs, including Morphine with
Gravol, Oxycodone and Tylenol.

[29]        
While in hospital, Ms. Dunn had physiotherapy treatments to increase her
mobility.  By August 13, she was able to use a wheelchair to get to the
bathroom; and was able to stand well enough to use a commode.  Although there
was discussion about a transfer to a rehabilitation facility, she was instead
allowed to go directly home on discharge from VGH on August 15, 2008, with
instructions to avoid bearing weight on her left side.  She was given prescriptions
for analgesics to manage her pain.

[30]        
Ms. Dunn testified that on leaving hospital she went to stay at the
apartment owned by a friend of Mr. Bennett’s in Surrey.  She lived there for
about nine months.  During that time, Mr. Bennett sometimes lived with her. 
Mr. Bennett paid the rent on the apartment and Ms. Dunn testified that he also
lent her money.  Ms. Dunn eventually applied for and began to receive social
assistance payments from the Province.   She was still receiving social
assistance payments at time of trial.

[31]        
Arrangements were made for a hospital bed to be set up in the apartment
and Ms. Dunn spent most of the first two months after her discharge from
hospital in bed or a wheelchair as her fractures healed and she slowly regained
mobility.

[32]        
An Outpatient Clinic record for August 27, 2008 indicates that Ms. Dunn
had normal hip range of motion by that date, with minimal pain at the end
points of flexion and rotation.  She had been doing well with increasing
mobilization, decreasing pain and no neurological symptoms.

[33]        
By September 26, Ms. Dunn’s pelvis was considered to be stable and she
was permitted to start partial weight bearing on her left leg.  She was noted
to have a “…slight rotational deformity with prominence of the posterior
superior iliac spine on the left side”.  The swelling in Ms. Dunn’s knees had
gone and she had full range of motion and stability in both knees.

[34]        
By November 4, 2008, the Outpatient Clinic record described Ms. Dunn as
“…walking relatively well”. X-rays showed healing of the rami fractures.  Ms.
Dunn was told she could increase her activity and she was given a referral for
physiotherapy.  She reported that she had not taken any painkillers recently
but her Oxycodone prescription was renewed.

[35]        
By December 3, 2008, Ms. Dunn reported to her doctors that she was
progressing quite nicely.  She had had a bit of a set back after her big dog
jumped on her.  She was walking without a mobility aid.  Her doctor wrote a
note for Social Services indicating Ms. Dunn was not able to do heavy labour
until further notice.

[36]        
By February 18, 2009, an Outpatient Clinic report states that Mr. Dunn
was walking well and did not notice any particular limp unless she walked a
long distance.  She still had low back pain on the left side for which she occasionally
took Tylenol and for which she was also prescribed Toradol.  Dr. O’Brian
recorded that he did not think any further treatment was warranted at that
stage and planned to review her again in August 2009.  There are no later
clinical records from Dr. O’Brian in evidence.

[37]        
In March 2009, Ms. Dunn began outpatient physiotherapy treatments.  She
said that she had 33 treatments, and found them to be beneficial.  She was able
to walk from her apartment to the Physiotherapy clinic.  She was given exercises
to do on her own.

[38]        
At some point, Ms. Dunn’s relationship with Mr. Bennett ended and in
June 2009, she moved from the apartment in Surrey to her parents’ home in
Kelowna.  She made the trip on her own, driving a used vehicle she had recently
purchased.   For the first year after returning to Kelowna she slept on her
parents’ couch as her brother was occupying her parents’ guest bedroom.  After
her brother moved out Ms. Dunn moved into the guest bedroom.  She continued to
live with her parents at time of trial and her parents have been providing her
with some financial assistance, although Ms. Dunn’s main source of income
continued to be income assistance payments from the provincial government.

[39]        
Ms. Dunn testified that she had done very little since moving to Kelowna
in June 2009.  She said she rarely leaves her parents’ home.  To date of trial,
she had not worked at all; had not attempted to work; and had made no inquiries
about finding work.  She recalled having met once with a social worker in
Kelowna in early 2011 who told her about some workshops she could attend but Ms.
Dunn decided the workshops were not appropriate for her.  She made one phone
call to a business she found in a business telephone directory.  She could not
recall whether the business had to do with employment or rehabilitation but she
recalled that they charged fees and suggested that she speak to her lawyer.

[40]        
Ms. Dunn testified that in April 2011 she volunteered to walk dogs at
the SPCA in Kelowna, but did it only once.  She has walked a friend’s small dog
from time to time.  Her parents bought her an elliptical machine and she
testified she had been using it almost daily for the six months prior to trial,
although only three to five minutes at a time.

THE MEDICAL OPINION EVIDENCE

[41]        
On November 25, 2009, Ms. Dunn was assessed by orthopedic specialist Dr. G.
Aitken, at the request of plaintiff’s counsel.  In his medical legal report,
Dr. Aitken noted that aside from some completely healed childhood
fractures, Ms. Dunn had no medical problems before the accident on August
4, 2008.  Dr. Aitken noted that when interviewed, Ms. Dunn complained of:

…
shooting pains in both of her legs, worse on the left than the right.  Swelling
in her left posterior lumbopelvic region with pain aggravated by activities
such as vacuuming or sweeping.  Discomfort in the upper back, maximal in the
left parathoracic region between the shoulder blades.

[42]        
Ms. Dunn told Dr. Aitken that sitting or standing was painful but she
did not have pain when lying down although she did have interrupted sleep.  She
was not using any prescription medications, but occasionally took
non-prescription Advil.

[43]        
Dr. Aitken noted that Ms. Dunn had “…some slight fullness of the left
sacroiliac region but no gross scoliosis or pelvic misalignment”.  She had
limited forward bending and found bending backward to be uncomfortable.  Dr.
Aitken noted that “the pelvic landmarks” were symmetrical; Ms. Dunn’s leg
lengths were equal; and that Ms. Dunn had full range of motion of both hips,
with no signs of flexion deformity or other restrictions.  Ms. Dunn could stand
on tiptoe repetitively but had trouble with repetitive knee bending.

[44]        
Dr. Aitken’s opinion is that Ms. Dunn is disabled from work as a janitor
or waitress, but probably fit for some alternative occupation.  His opinion is
that she will probably be left with chronic pain from injuries to the left
sacroiliac joint region and lower lumbosacral area and that the pain can be
controlled with over-the-counter medication or prescription medications like
Gapabentin or Tramadol.

[45]        
Ms. Dunn was assessed by Dr. R. Kendall, an orthopaedic specialist, in
late January or early February 2010 and his medical-legal report dated February
3, 2010 was entered into evidence at trial.  By the time she saw Dr. Kendall,
Ms. Dunn had not been having physiotherapy for more than six months.

[46]        
Ms. Dunn told Dr. Kendall that she continued to get deep and aching pain
in her back, typically on the left side, exacerbated by sitting or lying down
for a prolonged period and aggravated by physical activities such as
housework.  She was able to walk an hour or more before her discomfort would
make her stop.  She was not able to run.  She found it hard to sleep through
the night.  She told Dr. Kendall she took Advil or Tylenol occasionally. 
She had occasional groin pain but no hip stiffness.

[47]        
On examination, Dr. Kendall noted that Ms. Dunn appeared to be in some
discomfort when sitting and preferred not to sit on the left side of her
buttocks.  Her thoracic and lumbar spines showed normal kyphosis and lordosis
respectively.  There was what Dr. Kendall described in his report as “…slight
fullness on the left side of the posterior pelvis and spine”.  Ms. Dunn had
some tenderness over the left lower midline of the spine and the left
paraspinal region.  Her pelvis was stable.  She walked with a normal heel-toe
gait and there was no evidence of a limp, although Ms. Dunn walked no more than
20 feet during the examination.  Ms. Dunn’s pelvis was level and her leg
lengths symmetrical.  Her hips had full and symmetrical range of motion, but
Ms. Dunn complained of discomfort with forced internal and external rotation.

[48]        
Ms. Dunn’s thighs and calves showed no “wasting” and she had full range
of motion in her knees.  Her ankles and feet were unremarkable.  Although Dr.
Aitken had suggested it was possible that there was some nerve root
impingement, Dr. Kendall found no indication of that.  Dr. Kendall’s
opinion is that the injuries will not lead to premature degeneration of Ms.
Dunn’s hip joints or the development of arthritis.

[49]        
Dr. Kendall’s opinion is that Ms. Dunn is probably going to be left with
some chronic residual pain.  He noted, however, that she was “significantly
de-conditioned” when he saw her, and recommended that she improve her level of
fitness which he believed could improve her pain.  Dr. Kendall recommended that
Ms. Dunn be as active as possible with walking, stationary cycling, swimming
and light aerobic exercises but that she should avoid higher-impact exercises
such as jogging. He agreed with Dr. Aitken’s view that Ms. Dunn will likely
require either over-the-counter or prescription analgesics from time to time to
control her symptoms.

[50]        
Dr. Kendall did not believe that any further investigations were warranted
and said that Ms. Dunn did not require ongoing physiotherapy, massage therapy,
acupuncture or other treatment; does not require any special braces, orthotics
or other medical devices; and does not require any household modifications.

[51]        
Dr. Kendall’s opinion is that Ms. Dunn was likely disabled from all
employment for at least twelve months following the accident, and thereafter
probably suited only for light sedentary occupations that do not require
prolonged standing, sitting, lifting or carrying.

[52]        
On October 21, 2010, Ms. Dunn had an axial CT scan of her lumbar spine
and sacroiliac joints.  The “Impression” is summarized as:

Healed left sided sacral
fracture with mild deformity but no evidence of sacra, foraminal root
Impingement.  Secondary degenerative disease of the left S1 joint; minor disk
bulge at L5-S1 and mild facet AO at L5-S1 but L3-4 and L4-5 are unremarkable.

[53]        
On February 17, 2011, Ms. Dunn began a new course of physiotherapy
treatments at a clinic in the Kelowna area.  The records in evidence record
nine treatments with the last entry in the physiotherapy records dated May 4,
2011.

[54]        
Dr. Kendall provided a follow-up report dated February 27, 2012.  He did
not reassess Ms. Dunn, but reviewed additional clinical records, including the
October 21, 2010 CT scan report, and the results of a functional capacity
evaluation carried out in April 2011.

[55]        
Dr. Kendall noted that the records he reviewed indicated that Ms. Dunn
continued to report daily pain involving her back and posterior pelvis.  He
said the records did not show the development of any degenerative conditions or
neurologic involvement.  His opinion continued to be that she is permanently
disabled from work as either a waitress or janitor, and likely limited to light
or sedentary occupations that permit frequent posture changes.

[56]        
Dr. Kendall also stated that Ms. Dunn “…appears to have symptoms
consistent with depression”.  I infer he may have arrived at this conclusion by
reference to information in Ms. Bos’s report.

[57]        
Ms. Bos carried out a functional capacity evaluation of Ms. Dunn on
April 13, 2011 utilizing something called the “Matheson system”.  Ms. Bos’s
opinion was that Ms. Dunn had cooperated with the evaluation by putting in full
effort; and that Ms. Dunn’s complaints of pain and perceptions of
disability were, almost entirely, consistent with her demonstrated abilities
and limitations.  Ms. Bos had Ms. Dunn complete two psychometric assessment
tools – the Beck Depression Inventory II and the Dallas Pain Questionnaire –
and Ms. Bos’s interpretation of the responses indicated that Ms. Dunn is
suffering from depression and would benefit from “psychological intervention”.

[58]        
Overall, the results of the capacity evaluation indicated that Ms. Dunn
has weaker hip strength on the left than right; and that pain in her left hip
and the left side of her low back affects her tolerance for sitting, standing
and walking.  Ms. Bos concluded that Ms. Dunn could perform tasks while
standing for thirty minutes, but then needed to sit down for a time.  Ms. Dunn
gets pain if she stoops too often.  She was able to perform tasks while seated
on an “occasional to frequent” basis if able to take breaks every hour to
stretch and change position.  Ms. Dunn testified that as a waitress she
routinely carried heavy loads so it appears her upper body has become
de-conditioned as Ms. Bos concluded that Ms. Dunn was able to lift, carry, push
and pull only at the “light strength” level.

[59]        
Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the
capacity to work either as a waitress or a janitor due to limited standing
tolerance, decreased walking speed and limited stooping/bending tolerance.  Her
primary limitation, according to Ms. Bos, is “standing/weight bearing
tolerance”.   Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational
testing and assistance with job search.

[60]        
I turn now to a consideration of damages.

SPECIAL DAMAGES

[61]        
The only dispute in relation to the quantum of Ms. Dunn’s claim for
special damages relates to her claim to be reimbursed for $1,950 rent paid on
the Surrey condo where Ms. Dunn resided after her discharge from hospital.  The
claim for rent relates to the months of August and September 2008 only,
although Ms. Dunn continued to reside in the condo until she moved to Kelowna
in June 2009.  Ms. Dunn testified that Mr. Bennett paid the rent on the
condo.  She said she provided her lawyer with the two receipts because she
thought the defendant must be responsible for this expense.

[62]        
The evidence does not establish that but for the accident Ms. Dunn would
not have had accommodation costs.  In any event, the rent was not paid by Ms.
Dunn and there is no evidence she has agreed to reimburse Mr. Bennett.  In
these circumstances, the defendant is not liable to compensate the plaintiff
for rent.

[63]        
I award the sum of $2,509.92 for special damages.

PAST LOSS OF INCOME OR THE OPPORTUNITY TO EARN INCOME

[64]        
Ms. Dunn has not worked at all since the accident and as noted earlier
in these Reasons, she has made no attempt to find employment of any kind or to
take any job training.  The reports of Dr. Aitken and Dr. Kendall indicate that
Ms. Dunn was probably disabled from all employment for 12 to 15 months
following the accident.  In their opinions, and based on Ms. Bos’s assessment,
Ms. Dunn was and is probably permanently disabled from working as a waitress or
server in a bar, club or restaurant; and from work as a commercial housecleaner
or janitor.   Dr. Kendall said that he thought Ms. Dunn was probably not able
to return to that type of work at the time he saw her.

[65]        
None of the experts said, however, that Ms. Dunn is not capable of
working at all.   Dr. Kendall’s opinion is that she is likely limited to light
or sedentary occupations and that some workplace adaptations may be required. 
A job allowing for frequent posture change would be advisable.

[66]        
As earlier related, Ms. Dunn had effectively been out of the work force
for several years before the accident and agreed in cross-examination that she
had not felt really connected to the work force for about a decade.  There are
no tax returns in evidence in relation to years when Ms. Dunn was supporting
herself by working as a server and Ms. Dunn did not testify about what her
earnings were in those years.  She earned less than $1,000 in 2004 and had no
employment income in 2005.  She did not file a return in 2006 from which I
infer she had no employment income in that year either.  In 2007, her total
earnings were $4,146.  She reported no employment income in the seven months
before the accident in 2008, although she testified she had worked a few times
as a cleaner in that year.

[67]        
The Court was not provided with evidence about average earnings of
either servers or cleaners/janitors in British Columbia.   Presumably, evidence
might have been available from Dawn Robinson about how much her regular
employees earned, but no evidence of that nature was presented.

[68]        
Ms. Dunn testified that she was in the process of terminating her
relationship with Mr. Bennett, and that she planned to reside in Yellowknife
and find work there as a cleaner, but in cross-examination agreed that she had
not broken off her relationship with Mr. Bennett until after the accident. 
After the accident, Mr. Bennett continued to provide Ms. Dunn with financial
support while she remained in the Lower Mainland by paying rent on the
apartment where she, and sometimes both she and Mr. Bennett, were residing.

[69]        
I consider it unlikely that Ms. Dunn would have earned much income in
the balance of 2008, even if the accident had not happened.  She had not found
steady employment in Yellowknife, and had worked only a few times for Ms.
Robinson.   There was some prospect of more work with Ms. Robinson, but how
much work would have been available is unknown.

[70]        
Dr. Kendall’s opinion is that the plaintiff was likely disabled from
work for at least 12 months following the accident, but by the time he saw her,
had recovered sufficiently to be capable of engaging in some kinds of work. 
Dr. Aitken’s opinion in November 2009 was that she was by then (15 months
post-accident) capable of doing some work other than that of waitress or
janitor.  However, the plaintiff did not mitigate her damages by making any
attempt to find employment in the three and one-half years that had passed by
time of trial; or to take training to improve her skills and qualifications.

[71]        
In the circumstances, I am of the view that Ms. Dunn likely suffered a
loss of capacity to earn income pre-trial, but that only a modest award is
warranted, given her history of non-earnings, the dearth of evidence about her
income when she did work; and her failure to mitigate her damages by making any
effort to find work or to re-train prior to trial.  I award the sum of $18,000
for past loss of income or the capacity to earn income in the period between
the accident and trial.  I have assessed the damages net of the social
assistance payments Ms. Dunn had received to the date of trial, so no further
deduction should be made to take into account those payments.

Loss of the
Capacity to Earn Income in Future

[72]        
This assessment is rendered extremely difficult by the same
uncertainties and unknowns discussed in relation to the assessment of loss of
earnings to the date of trial.  Ms. Dunn had effectively withdrawn from the
labour force for several years before the accident and was not employed when
the accident happened.  She had made no effort prior to trial to find work or
to test her capacity to do work; and had not taken any training to attempt to
upgrade her skills.

[73]        
The evidence establishes that Ms. Dunn has suffered a capital loss – she
is probably no longer able to work as a waitress or server in a restaurant or
bar – the work she had done most often in the past; and is probably not capable
of working as a cleaner or janitor; the type of work she was contemplating
doing at the time of the accident.

[74]        
Dr. Kendall’s opinion is that Ms. Dunn retains the capacity to work in a
sedentary occupation, although she might require some workplace accommodation;
would need to continue to use non-prescription analgesics to relieve
discomfort; and would benefit from aggressive treatment for depression.  Dr.
Aitken’s opinion in November 2009 was that Ms. Dunn was “…probably fit to look
for some alternative occupation…”.

[75]        
Ms. Dunn was only 38 at the time the accident happened, so she had the
prospect of many years of earning a living ahead of her.

[76]        
Counsel for Ms. Dunn provided the Court with the following authorities: 
Campbell v. Meinen, 1999 CarswellBC 1800; Morlan v. Barrett, 2012
BCCA 66; Campbell v. Banman, 2009 BCCA 484; Campbell v. Swetland,
2012 BCSC 423; Tabrizi v. Whallon Machine Inc., 1996 CarswellBC
1186; George v. Middlemiss, 1994 CarswellBC 1959; and Shepherd v.
Campbell, 1993 Carswell BC 2487.

[77]        
Counsel for the Third Party provided the Court with the following
authorities: Cunningham v. Slubowski, 2006 BCCA 220; Kasic v. Leyh,
2009 BCSC 649; Hartnett v. Leischner, 2008 BCSC 1589; Klein v. Dowhy,
2007 BCSC 1151; Perren v. Lalari, 2010 BCCA 140; Boyle v. Prentice,
2010 BCSC 1212; Knight v. Belton, 2010 BCSC 1305; and Day v. Nicolau,
2011 BCSC 490.

[78]        
It is trite to say that each case depends on its own facts.  Some of the
authorities included in the plaintiff’s book of authorities have quite
different facts in relation to the earning history and capacity to earn income
of the plaintiffs in those cases.  The plaintiff in Campbell v. Meinen,
cited above, was only 21 years old when she suffered severe pelvic fractures as
a result of a motor vehicle accident.  Her fractures required two surgeries;
she was hospitalized for two weeks; and totally disabled for about six months. 
She was left with a significant permanent disability, with the likelihood that
she would develop arthritic problems in her hip in future.  After the accident
she completed a university degree in economics and began working in office
management.  Justice Low awarded Campbell $85,000 for impairment of future
earning capacity.

[79]        
In Kasic v. Leyh, cited above, the 50-year-old male plaintiff
suffered permanent partial disability caused by a back injury.  He had
experienced only a small loss of income to date of trial as a result of his
injuries, but the court awarded $100,000 for loss of earning capacity in
future.

[80]        
There are more unknowns and uncertainties in this case than in many of
the authorities referred to.  Ms. Dunn’s lack of education and training meant
she was working in occupations that were unlikely to be highly remunerative,
when she was working.  Her one venture into business – the coffee truck – had
been unsuccessful.

[81]        
As a result of the accident injuries, the plaintiff’s capacity to earn
income has been impaired, but not destroyed.  She retains the capacity to do
work, according to the evidence.  Given her lack of education and training and
the fact that all of her work experience has been gained in jobs that she is
probably no longer able to perform, however, the loss of the capacity to do
many types of work involving physical labour is a significant one in the
plaintiff’s case.  It is true that for several years before the accident the
plaintiff was not utilizing her capacity to earn income because she was being
supported by Mr. Bennett, she is still entitled to be compensated for the
impairment of that capacity.

[82]        
I award the plaintiff $85,000 for impairment of the capacity to earn
income in future.

LOSS OF THE CAPACITY TO DO HOUSEWORK

[83]        
This head of damages was not pleaded, but in submissions, counsel for
Ms. Dunn referred the Court to authorities relevant to this issue; and
counsel for the Third Party made brief submissions in response.

[84]        
Ms. Dunn did not testify about the nature or amount of housework or
homemaking she had done before the accident.  She did not describe any
household tasks she was used to performing.  She testified that since living
with her parents she has resumed doing her own laundry and making her bed.  She
said that if she does laundry she is tired for the rest of the day.  She
testified she had tried to use the vacuum cleaner but found doing so caused
intense lower back pain.  She was not specific about when, or how often, she
had attempted to use the vacuum cleaner.  She had not attempted to wash walls
or move furniture.   She said that if she was living alone she did not think
she could do yard work, heavy lifting, or carry groceries.

[85]        
Given the failure to plead this claim; the lack of evidence about the
nature or amount of housework or homemaking Ms. Dunn did before the accident;
and the very limited evidence about her current capacity to do her own
housework, any award under this heading must be modest.   I award $10,000 for
impairment of the capacity to do housework.

NON-PECUNIARY DAMAGES

[86]        
I have already described Ms. Dunn’s hospitalization and the lengthy
period during which she was disabled by her accident injuries.  Ms. Dunn
testified that she continues to experience discomfort caused by the injuries.

[87]        
Ms. Dunn testified that before the accident she enjoyed long motorcycle
rides; walked her dog and played with her dog at the beach; and also did
roller-blading.  At time of trial, she said that she was limiting her physical
activity to occasional walks and exercises to strengthen her core muscles
although she testified that her family doctor had recommended that she keep
active and walk and stretch.

[88]        
Ms. Dunn testified that after the accident when she was living in the Lower
Mainland she walked to her physiotherapy appointments, but in Kelowna she
generally drove herself to appointments.  At time of trial, she was not having
any physiotherapy or massage therapy treatment.

[89]        
On long drives, such as the three or four trips she had made to the Lower
Mainland in the year prior to trial, Ms. Dunn experienced discomfort.  Ms. Dunn
testified that she is often in pain.  She can sit for an hour at a time, but
tries to put her weight on her right hip.  She can stand for periods of 10 to
15 minutes if she can shift position while standing.  Her discomfort sometimes
interferes with her ability to sleep.

[90]        
Ms. Dunn testified she experiences pain or discomfort much of the time,
but only occasionally requires the use of non-prescription medication to
control or alleviate the discomfort.

[91]        
Dr. Kendall considered it possible that Ms. Dunn was suffering from
depression when he met with her, although he declined to make the diagnosis
himself.  Ms. Bos alluded to this in her report.  Both experts suggest that if
the depression was treated, Ms. Dunn’s experience of pain might be lessened and
her energy levels increased.

[92]        
Ms. Dunn considers herself to have a deformity – she does have a slight swelling
in her lower back.  Based on the medical reports, I am satisfied she perceives
it to be more significant and more unsightly than it objectively is.  She is,
however, an attractive woman and appears to take pride in her appearance so
this slight deformity is troubling to her.

[93]        
Plaintiff’s counsel submits that the award for non-pecuniary damages
should be $125,000; counsel for the Third Party submits the appropriate range
is between $60,000 and $80,000.

[94]        
Having considered the authorities referred to and comparing the
situations of the plaintiffs in those cases to that of Ms. Dunn, I award
$100,000 for non-pecuniary damages.

COSTS

[95]        
I am aware of no reason why the plaintiff should not have her costs, on
Scale B.  If there are matters relevant to costs that should be brought to my
attention – offers of settlement, for example – counsel have leave to file
written submissions or to make arrangements to appear to make further oral
submissions.  Otherwise, the order shall be costs to the plaintiff on Scale B.

“W.G. Baker J.”