IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130926

Docket: 10-1614

Registry:
Victoria

Between:

Lacey Dawn Gail
Shallow

Plaintiff

And

Bernard Thomas
Dyksterhuis

Defendant

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]            
This trial concerns a claim by Lacey Shallow that the defendant, Bernard
Dyksterhuis caused a collision and that she was injured as a result.  Since the
commencement of the action the plaintiff married.  Her name is now Lacey
Orcutt.

[2]            
The issues are first, whether Ms. Orcutt was partially to blame for the
accident; second, if so, the extent of her responsibility; and third, the
measure of her loss.

[3]            
The accident took place on March 24, 2008 in the area of Charlie Lake,
northwest of Fort St. John, B.C.  Ms. Orcutt was driving south on the Alaska
Highway, Highway 97.  She intended to turn left onto an access road, two
kilometers south of the junction with Highway 29.

[4]            
Highway 97 has one southbound lane in this area.  However, there is a
right turn lane and a left turn lane, as well as the through lane, at this
intersection.  The intersection is not controlled by a traffic light.  The
northbound lanes and southbound lanes are separated by a solid double yellow
line, making it a no passing lane.

[5]            
The accident occurred at 8:30 a.m.  There was daylight.  The roads were
covered with snow and it was continuing to snow.  Visibility was satisfactory. 
Ms. Orcutt testified that she had her left turn signal on.  As she
commenced her turn, the defendant’s vehicle struck her vehicle as he was
attempting to overtake her by passing her on the left.

[6]            
The defendant testified that he was driving south in a loaded logging
truck.  He had started work at 12:30 a.m. that day and was hauling the logs
from an area north of the accident scene to a mill south of Fort St. John. 
This was his second load of the day.

[7]            
Mr. Dyksterhuis testified that he was travelling in the one southbound
lane.  He noticed the plaintiff’s car driving south in front of him.  He saw
the vehicle slow down and saw that the brake lights were coming on and off. 
Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed,
mistakenly, that there was no left turn possible there.  He presumed, then,
that the plaintiff was either turning right or stopping on the highway.

[8]            
The defendant decided it was safe to pull out and pass her on the left. 
As he came up on her left, she began her left turn.  His front bumper struck
her vehicle.

[9]            
Ms. Orcutt’s evidence is that she stopped for a few seconds to allow two
northbound vehicles to pass her and then turn left.  However, she stated during
her examination for discovery that she did not come to a stop before commencing
her turn.  As well, she later told her physician that she was travelling very
slowly in the process of making a left turn.

[10]        
Ms. Orcutt feels that she was in the left turn lane but said in
cross-examination that because of the snow, she could not “know for sure” that
she was in the left turn lane.  She said it was “possible” but “very unlikely”
that she was in the through southbound lane.

[11]        
Donna Lessard witnessed the accident.  She was stopped on the access
road on the east side of Highway 97, waiting to turn left or south onto Highway
97.  She was waiting for Ms. Orcutt’s vehicle to turn left in front of
her.  She is certain that Ms. Orcutt had her left turn signal on.  She
said Ms. Orcutt had not started her turn when the accident occurred.

[12]        
Robin Brekkas testified that he was driving northbound on Highway 97. 
He estimated he was some 250 metres away when he observed Ms. Orcutt’s vehicle
and the logging truck.  He said the plaintiff’s left turn signal was on.  He
saw her turning left and saw the logging truck hit the car.  He testified he
believes that she was in the left turn lane.  He said that he could not
“guarantee” that because the snow covered the road markings.

LIABILITY

[13]        
Several sections of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 are
relevant.  Sections 155, 157, 159 and 170 provide as follows:

Highway lines

155 (1) Despite anything in this Part, if a highway is marked
with

(a) a solid double line, the driver
of a vehicle must drive it to the right of the line only,

(b) a double line consisting of a
broken line and a solid line,

(i) the driver of a vehicle
proceeding along the highway on the side of the broken line must drive the
vehicle to the right of the double line, except when passing an overtaken
vehicle, and

(ii) the driver of a vehicle
proceeding along the highway on the side of the solid line must drive the
vehicle to the right of the double line, except only when finishing the passing
of an overtaken vehicle, and

(c) one single line, broken or
solid, the driver of a vehicle must drive the vehicle to the right of the line,
except only when passing an overtaken vehicle.

(2) Subsection (1) (b) (i) and (c) do not apply if a driver
is avoiding an obstruction on the highway and first ascertains that the
movement can be made with safety and without affecting the travel of any other
vehicle.

157(1) Except as provided in section 158, the driver of a vehicle
overtaking another vehicle

(a) must cause the vehicle to pass
to the left of the other vehcle at a safe distance, and

(b) must not cause or permit the
vehicle to return to the right side of the highway until safely clear of the
overtaken vehicle.

Passing on left

159 A driver of a vehicle must not drive to the left side of
the roadway in overtaking and passing another vehicle unless the driver can do
so in safety.

170 (1) If traffic may be affected by turning a vehicle, a
person must not turn it without giving the appropriate signal under sections
171 and 172.

(2) If a signal of intention to turn right or left is
required, a driver must give it continuously for sufficient distance before
making the turn to warn traffic.

(3) If there is an opportunity
to give a signal, a driver must not stop or suddenly decrease the speed of a
vehicle without first giving the appropriate signal under sections 171 and 172.

[14]        
Counsel referred me to a number of decisions concerning liability for
accidents which occurred in similar circumstances: Smith v. Bileck, 2006
BCSC 989; Pipe v. Dusome, 2007 BCSC 1066; Eccleston v. Dresen, 2009
BCSC 332; Stewart v. Fedderly, 1985 B.C.J. No. 394 (SC); Kingsfield
v. Powers, 2012 BCSC 562; Langley v. Heppner, 2011 BCSC 179, and Samograd
v. Collison, 1995 17 B.C.L.R. (3d) 51 (BCCA).

[15]        
In Samograd, Finch J.A., as he then was, comments on the
responsibility of overtaking drivers at para. 63:

His “greater obligation” to
ensure that he could pass in safety arose from the circumstances of the case
rather than from any higher legal duty, statutory or otherwise.

Recently, Justice Dillon of this
Court reiterated this “greater obligation” principle in Pipe at para.
11:

Apportionment of liability in
this situation requires consideration that the overtaking driver generally
bears greater obligation to ensure that he can pass in safety

[16]        
These cases contain useful statements of principle but liability in
motor vehicle cases is very much determined on their individual facts.  The
question really comes down to who had the better opportunity to see the
potential for a collision and therefore a greater opportunity to avoid it.

[17]        
There are two conflicts on the evidence to be resolved.  First, where
the plaintiff was positioned on the highway before she began her turn; and
second, whether her left turn signal was on.

[18]        
Ms. Orcutt testified that her left turn signal was on.  This is
corroborated by the evidence of Mr. Brekkas and Ms. Lessard.

[19]        
There was a suggestion by the defendant that although he did not see her
turn signal, it may have been obscured by snow.

[20]        
This is highly unlikely.  Ms. Orcutt testified that she brushed the snow
off the car before leaving her home.  She had only travelled a few kilometres. 
Her evidence in this regard is corroborated by her mother, who observed her
clearing snow off the car before leaving home.

[21]        
As to the position of the vehicles, Ms. Orcutt and Mr. Brekkas both said
that they could not “guarantee” that her car was in the left turn lane, but
they both believed it was.  Any uncertainty was based on the fact that the lane
markings were obscured by snow.

[22]        
Ms. Lessard, on the other hand, was in perhaps the best position to view
Ms. Orcutt’s vehicle.  Her evidence is that the plaintiff’s vehicle was in
the left turn lane and her turn signal was on.

[23]        
I find that Ms. Orcutt was positioned in the left turn lane and her turn
signal was on.

[24]        
The recent case of Eccleston is factually similar in that the
accident occurred when the plaintiff was being overtaken on the left in the
process at making a left turn. Justice Barrow of this Court summarized the
defendant’s liability in this way at para. 43:

The defendant was also negligent
in two respects. First, she decided to pass the plaintiff’s vehicle when she
did not know with sufficient certainty what the plaintiff was going to do. I
recognize that to a degree that uncertainty was caused by the faulty equipment
on the plaintiff’s vehicle. Nevertheless, the plaintiff was slowing down and it
was apparent to the defendant that she was likely going to do something other
than continue to drive down the highway. The defendant knew that there were
places at which a vehicle might turn left or right along that portion of the
highway. She, like the drivers in Pipe, [Mergle v. Formosa Resources
Corp., [1994] B.C.J. No. 1642 (SC)] and [Wiebe v. Greyhound Bus Lines of
Canada Ltd., [1995] B.C.J. No. 2582 (SC)], was faced with an uncertain
situation. Her obligation was to not pass until she knew with reasonable
certainty what the plaintiff was going to do. Second, once she was committed to
passing and once she realized the plaintiff was not going to turn right, she
was obliged to sound her horn to warn the plaintiff of her presence and the
hazard she posed.

In Eccleston, the plaintiff was held to be contributory
negligent for failing to signal in a timely way and failing to keep a proper
look out when turning left off a highway at a point where passing is permitted.
Neither of those factors is present here.

[25]        
There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on
the left in a no passing zone.  There was a solid double yellow line on the
highway, but it was covered with snow.

[26]        
Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt.  First, he
was in a no passing zone.  Second, he wrongly assumed that she was not able to
turn left at that place.  Third, he was passing against a double solid line and
did not sound his horn to warn Ms. Orcutt that he intended to overtake her.

[27]        
The defendant received a Violation Ticket charging him with two offences:
unsafely passing on the left (s. 159) and following too closely (s. 162(1)). 
The defendant did not dispute the ticket.  Therefore, he is deemed to have
pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).

[28]        
The defendant concedes he was partly to blame for the accident, but
argues that Ms. Orcutt was also partly to blame.  This is said to be based on
her admission that she did not look over her left shoulder to determine whether
there was a vehicle passing her before commencing her left turn.

[29]        
I am not persuaded that Ms. Orcutt’s action in not looking over her
shoulder, amounts to a failure to take reasonable care.  She was making a
lawful left turn.  She was in an area where passing was not permitted.  She was
in the left turn lane.  The defendant did not sound his horn to warn her.

[30]        
Mr. Dyksterhuis faced a situation in which the intention
of Ms. Orcutt was uncertain to him. His decision to pass her when faced with
that uncertainty gives rise to total liability. For these and the above
reasons, I conclude that the defendant is 100% at fault.

DAMAGES

Background

[31]        
Ms. Orcutt has lived in Charlie Lake throughout her life.  She was 17
years old at the time of the accident and is now 22.  At the time of the
accident, she lived at home with her parents.  Her mother, Sheryl, is a
bookkeeper/accountant and her father, Wayne, has his own company, working in
the oil patch.  She has two brothers.

[32]        
Ms. Orcutt was an athlete.  She enjoyed recreational quadding,
snowboarding and wakeboarding.  She was a dedicated and talented figure
skater.  This involved practicing six days per week.  In addition, there were
two weekly sessions in the gym with her coach.  All of this was as a member of
the Fort St. John Figure Skating Club.

[33]        
Ms. Orcutt began competing at age 6.  She was in the provincial
championships at age 12 and placed 17th in the Province.  In February 2003, she
placed second.  She won the gold medal in the 2003 Senior Ladies Division.

[34]        
Ms. Orcutt’s only pre-existing condition is celiac disease which she
contracted at age 9.  She has a gluten-free diet as a result and there is no
suggestion that this condition is not entirely under control.

[35]        
Ms. Orcutt testified that she enjoyed school.  She also coached figure
skating, did some baby sitting and worked part-time at Ernie’s Sporting Goods. 
In June 2008 she graduated with average marks from North Peace Secondary
School.

[36]        
Ms. Orcutt’s ambition was to teach elementary school.  Her work
experience includes teaching young people to skate.  In grade 12 she took a
course entitled “Work Experience”.  It involved 100 hours of work in grade 1 at
Charlie Lake Elementary School.  She helped children stay on task, did some
preparation and did some marking.

[37]        
In 2008 Ms. Orcutt was accepted for a two year program at Northern
Lights College leading to AHCOTE Teacher Education.  This is the Alaska Highway
Consortium on Teacher Education.  The purpose of the program is to train
teachers and address teacher shortages by retaining people who have grown up in
the community.  The program involves Northern Lights College, Simon Fraser
University, University of Northern British Columbia and School Districts No.
59, 60 and 61.

[38]        
Dr. Lauren Lovegreen is the registrar of the college.  She explained
that a student must complete the two year Associate of Arts program and then
spend one and a half years in the AHCOTE program.  Upon completion, the
successful graduate obtains a conditional teaching certificate.  He or she then
has five years to complete an additional 30 credits in order to obtain a
degree.

[39]        
The plaintiff lived at home until 2011 when she married Tyrell Orcutt. 
Mr. Orcutt has his own welding business.  He works long days, in and out
of town, in the oil and gas industry.

[40]        
When they got married, they lived in a basement suite in Tyrell’s
parent’s home in Fort St. John.  In 2012 they moved to a holiday trailer and
then to a guest house on the plaintiff’s parents’ property in Charlie Lake.

The plaintiff’s condition

[41]        
When the plaintiff’s vehicle came to a stop after the collision, she
testified, she did not know where she was.  Her main concern was that something
struck her forehead.  This resulted in a “goose egg” and some swelling around
her eye.

[42]        
An ambulance attended.  She was advised to go to the hospital.  Mr. Brekkas
took her to the emergency department at Fort St. John Hospital.  She felt
nauseous and vomited several times.  Hospital records indicate that her Glasgow
Coma Scale was 15/15.  The plaintiff was discharged the same day.

[43]        
The plaintiff’s mother, Ms. Sheryl Shallow, testified that when the
plaintiff got home, she slept a great deal and complained of headaches, low
back pain and a burning sensation in her right arm.

[44]        
The plaintiff testified that she saw her family physician, Dr. Heinrich
Brussow in Fort St. John who recommended physiotherapy.

[45]        
Ms. Orcutt also felt tingling in the third, fourth and fifth fingers of
her right hand, and up the inside of her arm.  Her headaches continued.  There
was bruising and pain in her scalene muscle and the right side of her neck. 
She said she had trouble sleeping.  Her eyes were sensitive to bright lights.

[46]        
The accident happened during spring break.  She missed very little
school and was able to graduate from grade 12.

[47]        
Sheryl Shallow testified that she observed the plaintiff had trouble
focussing and completing her homework.  The plaintiff gave up competitive
skating, but continued with her coaching job.

[48]        
Ms. Orcutt testified that she continued to see her physician regularly.

[49]        
The plaintiff registered at Northern Lights College in September 2008. 
She had difficulty spending much time at the computer.  Having her arms in
front of her was painful.  This problem, together with her difficulty sitting
or focussing for long periods of time, led her to register for only two
classes.

[50]        
Ms. Orcutt began her classes but her right arm became numb and heavy
when she worked at the computer.  This led to her withdrawing from the college
in October 2008.

[51]        
Ms. Orcutt had worked for the Fort St. John Skating Club before the
accident.  After it, she moved to Peace Passage Skating Club in Taylor, some 15
minutes south of Fort St. John.

[52]        
The plaintiff coached 8 to 10 hours per week.  She said she had
difficulty with heavy tasks such as lifting small children.  She continued to
coach at Peace Passage until 2012.

[53]        
Ms. Orcutt also obtained a job at Sharp Instruments.  This was a two day
per week position.  The company’s business is installing and repairing
electrical instrumentation.

[54]        
Christine Woodruff is one of the four owners of Sharp Instruments.  She
testified that Ms. Orcutt worked there from May 2009 until June 2010.  Her
tasks were limited to filing.  I infer that the plaintiff resisted computer
work because of the pain it caused.  Ms. Woodruff said that the plaintiff
went home early when she did not feel well.

[55]        
Ms. Orcutt also enrolled in online courses.  She took business math and
accounting courses online but was able only to do one course at a time.

[56]        
Ms. Orcutt testified about what she felt was a change in her
personality. Before the accident, she considered herself outgoing and enjoyed
being busy. She has since become easily frustrated and has had little patience.
She said she often wants to withdraw from busy situations. She testified she is
now forgetful, moody and easily irritated.

[57]        
Ms. Orcutt met her future husband Tyrell in the summer of 2008, following
the accident.  They married in June 2011.

[58]        
Ms. Orcutt took over bookkeeping for Mr. Orcutt’s welding business.  He
testified that she has trouble staying on task and that her mother checks her
work.

[59]        
Ms. Orcutt does some recreational activities, but has been unable to
return to skiing and wakeboarding.  She now enjoys side-by-side quadding, a
more mellow version of the activity.  She also has limitations in doing
housework.  Her mother helps her with vacuuming.  Mr. Orcutt testified that she
has trouble reaching up to higher cupboards.

[60]        
Ms. Orcutt described her pain symptoms:  She testified she never has a
day without pain.  When it is not severe, she said it is 2 or 3 out of 10. 
When it is severe, she said it is 12 out of 10.  She said this occurs 3 to 4
days a week.

[61]        
Tammy Beach is a nurse who has known the plaintiff for many years.  The
plaintiff babysat her children.

[62]        
Ms. Beach described Ms. Orcutt before the accident as “very outgoing and
energetic, friendly and happy”.  She said “Lacey enjoyed skating, snowmobiling
and wakeboarding.  After the accident, Ms. Beach found the plaintiff quiet, not
as happy and complaining of pain.  She referred to headaches and blurring
vision.

[63]        
The plaintiff testified that two circumstances have led to an
improvement in her symptoms.  First, she gave up coaching, and second, she has
benefitted from Feldenkrais treatment, which is described below.

Expert Medical Evidence

[64]        
Ms. Orcutt was examined by Dr. Anthony Salvian, a vascular surgeon, in
July 2010.  Based on his interview and physical examination as well as his
review of other reports, he diagnosed:

(a)      Myofascial injury of the
neck and upper back;

(b)      Headaches resulting from
para-spinal muscle spasms; and

(c)      Post-traumatic
thoracic outlet symptoms causing the numbness and pain in the shoulder, forearm
and fourth and fifth fingers.

[65]        
Dr. Salvian’s prognosis and treatment plan includes these important
observations:

I would emphasize that one cannot simply “work through” the
pain and symptoms of thoracic outlet syndrome.  Trying to carry on with an
“activation program” or “work hardening program” will simply cause further muscle
spasm and muscle injury and exacerbation of the syndrome possibly resulting in
a chronic pain syndrome which should be avoided at all costs.

[66]        
He recommended that she avoid a number of activities:

In general, she must avoid
overhead use of the arm and repetitive activities with the arm, particularly
with the arm away from the chest and above chest level.  She should avoid heavy
lifting with the arm or prolonged repetitive activities such as typing or driving
or writing.  Activities such as retail with the arms overhead, i.e. hanging
clothes or putting dishes or clothes away on a top shelf, will be difficult. 
She should avoid activities like heavy gardening, shovelling and sweeping,
painting, wall washing and window washing.

[67]        
Dr. Salvian also recommended “Feldenkrais” physiotherapy.  The purpose
of this treatment, he explained, is to improve the patient’s posture and gently
stretch the scalene muscles.  It focusses on abdominal breathing.

[68]        
Ms. Orcutt has in fact undergone such treatment.  She has travelled to
Bezanson, Alberta, some three hours away, to be treated by Travis LaValley. 
She made several trips to Bezanson between September 2010 and July 2012, often
for three days of treatment.  Ms. Orcutt said she would see Mr. LaValley more
often if she could.  She described the treatment as “one of most helpful things
I’ve tried.”

[69]        
Dr. Andrew Travlos is a physiatrist.  He evaluated the plaintiff on
August 31, 2009 and September 11, 2011.  He diagnosed thoracic outlet syndrome,
mild traumatic brain injury, concussive and cervical-genic headaches, myofascial
and soft tissue pain of the neck caused by the concussion, neck pain and upper
back pain, and cognitive deficits in attention and concentration.

[70]        
A significant aspect of Dr. Travlos’ report is the improvement noted
between 2009 and 2011.  He stated in his second report:

When Ms. Orcutt was asked what had transpired in the last two
years, she indicated to me that everything was still the same and that there
was not much change.  However, on conclusion of the assessment, when it was
apparent to me that she had clearly improved, I did state this to her and she
definitely nodded in agreement.

Although Ms. Orcutt indicated that there was no initial
change in her symptoms, it does appear that from a functional perspective, her
activity level has increased.  She stated that she is now teaching skating
again and has been teaching as many hours as are available to her to teach,
sometimes up to six hours per day.  She finds she is able to manage such
activity.  Importantly, Ms. Orcutt stated that she did work out with a trainer
for approximately a year and although she initially did not seem to indicate
any change or any improvement with her various interventions, it was also quite
clear at the end of this assessment, that she has, indeed, improved remarkably
since last seen.

Ms. Orcutt’s current headache pains are certainly less than
before.  They now occur at most once or twice a week and she showed no
indication of any prolonged headache pains lasting for days at a time….It is
possible there are still some residual post-concussive headache symptoms, but I
think that those have mostly settled.  ….

Ms. Orcutt no longer complains
of any significant memory issues.  When last seen, she was still having memory
problems.  She has had a full neuro-psychological assessment done by Dr. Corney,
whose assessment clearly shows normal intelligence but some attention deficits
that were attributed to residual effects from a mild traumatic brain injury. 
It is clear from my perspective that Ms. Orcutt has improved in terms of her
cognition, as expected….At this point in time, Ms. Orcutt’s overall cognition
has almost certainly plateaued.  Importantly, she has normal cognition, normal
executive functioning, and has the ability to make decisions and the ability to
learn and study as she desires.

[emphasis
added]

[71]        
Dr. Travlos also commented on Ms. Orcutt’s future education prospects:

Although there will be some
limitation in terms of her concentration span and attention, she should still
be able to advance her education.  It would seem, therefore, that the only
residual factor as a result of the head injury is the attention problems.  This
could impact on various avenues of her life, but this is not something that is insurmountable
and she should, in fact, be able to resume fairly normal functioning as long as
she is aware of her limitations and understands that she needs to take regular
breaks and interrupt her activities to ensure that she can keep her
concentration span running for the duration of the tasks required.

[72]        
Dr. Travlos went on to state that there are still some concerns about
sleep, but the significant concerns about fatigue were not present at the time
of this interview.  He feels that the thoracic outlet symptoms have reduced to
a point that they are reasonably controlled.  She has learned to adapt.

[73]        
Dr. Patrick Corney, a neuropsychologist, oversaw the conducting of a
number of tests in October, 2010.  The results are consistent with her having
sustained a mild traumatic brain injury.  The tests show significant deficits
and attentional disabilities.  In his report dated November 26, 2010, he
concluded:

The results of this neuropsychological assessment identified
symptoms that are consistent with a mild traumatic brain injury.  It is my
opinion that the difficulties identified will have a negative effect on Ms. Shallow’s
ability to complete college or university level education and, by extension, on
her ability to meet future occupational goals.  Although there is evidence that
she can successfully manage single online courses, her ability to manage a more
significant course load in a classroom setting will be limited by compromised
attention in combination with physical symptoms such as pain and fatigue.

He went on to say that the
plaintiff appeared to be functioning well from a psychological perspective.  He
pointed out that she has no known history of depression or other psychological
disorders and has a high level of social support around her.

[74]        
As the defendant pointed out, Dr. Corney also stated:

In the Physical domain,
significant elevations were evident on the Pain Scale and Somatic Complaints
scales, and a moderate elevation was evident on the neurological status scales.

[75]        
This indicates, the defendant argues, the plaintiff is somewhat focussed
on her pain, the opposite of stoic.  I am in general agreement with that
observation.

[76]        
Sharyle Jewett is an occupational therapist.  She assessed the plaintiff
on three occasions and made a number of recommendations which will be
considered under the plaintiff’s claim for cost of future care.

[77]        
Derek Nordin, an occupational consultant, concluded because of the
plaintiff’s constellation of symptoms, she would not succeed as an elementary
school teacher.  He is of the view that the cognitive and emotional demands
would be too much for her.

[78]        
The defendant relied on the opinions of three experts.

[79]        
First, Gary Nix is an educational/vocational consultant.  He reviewed
expert reports and conducted a two-day assessment of the plaintiff.  He reached
these conclusions:

I am of the opinion that, prior to the motor vehicle accident
of March 24, 2008, Ms. Orcutt was capable of completing at least a two-year
diploma program and, given her dedication and hardworking nature, most likely a
four year degree in education.  This has not changed as a result of the MVA.

In my opinion, prior to the
accident of March 24, 2008, Ms. Orcutt was capable of working with young
children in either a day care or teaching capacity and this has not changed
subsequent to it.

[80]        
He specifically disagreed with Mr. Nordin’s conclusion that the
plaintiff could not pursue a career as an elementary teacher.  He put it this
way:

Ms. Orcutt is of average
intellect, above average reading comprehension, possesses good verbal skills,
normal memory capacities, low average attention, average reasoning abilities,
and appears to have the physical capabilities to perform the duties of an
elementary school teacher should she decide to pursue a teaching career.  I am
of the opinion that she would not have to settle for a “subservient role” as
proposed by Mr. Nordin….

[81]        
Gary Worthington-White provided an expert opinion in reply to Ms.
Jewett’s cost of future care which is addressed later in these reasons.

[82]        
Dr. Frank Kemble is a neurologist who gave expert evidence regarding an
independent medical examination of Ms. Orcutt.  It was conducted in February
2012.  Dr. Kemble stated that his neurological examination of Ms. Orcutt
was “normal”.  He said that her headaches have reduced significantly since the
time of the accident.

[83]        
Dr. Kemble attributed Ms. Orcutt’s symptoms to emotional and physical stress
brought on by chronic pain.  He felt that thoracic outlet syndrome was the less
likely source of her symptoms.

Non-Pecuniary Damages

[84]        
Non-pecuniary damages “should not depend alone upon the seriousness of
the injury but upon its ability to ameliorate the condition of the victim
considering his or her particular situation.” It is essential to appreciate the
nature of the individual’s loss. An award must meet the specific circumstances
of each case: Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637.

[85]        
In Stapley v. Hejslet, 2006 BCCA 34, the British Columbia Court
of Appeal reviewed the factors to be generally considered in awarding
non-pecuniary damages at para. 46:

The inexhaustive list of common factors cited in Boyd v.
Harris, [2004 BCCA 146] that influence an award of non-pecuniary damages
includes:

(a)        age of
the plaintiff;

(b)        nature
of the injury;

(c)        severity
and duration of pain;

(d)        disability;

(e)        emotional
suffering; and

(f)         loss
of impairment of life.

I would add the following factors, although they may arguably
be subsumed in the above list:

(g)        impairment
of family, marital and social relationships;

(h)        impairment
of physical and mental abilities;

(i)         loss
of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).

[86]        
The plaintiff sustained injuries including mild traumatic brain injury,
trauma induced thoracic outlet syndrome, myofascial injury and headaches.  She
has had considerable pain and discomfort.  However, I accept Dr. Travlos’
evidence that she has improved significantly.

[87]        
Ms. Orcutt enjoyed socializing a lot less after the accident. 
Nonetheless, she has been able to meet Tyrell Orcutt, develop a relationship
and enter into what appears to be a stable and enriching marriage.

[88]        
Ms. Orcutt lost the ability to compete in figure skating.  She was able
to coach almost without interruption.  But it has caused her pain,
nonetheless.

[89]        
Ms. Orcutt also has been able to travel, including to Hawaii, Mexico and
Cuba.

[90]        
As I stated above, I would not describe Ms. Orcutt as stoic.  Her
description of her symptoms seems more serious than what she reported to Dr. Travlos.

[91]        
I have reviewed several authorities including those the parties referred
to in argument.

[92]        
The plaintiff seeks an award of $165,000.  Counsel referred the Court to
three cases.

[93]        
In Cikojevic v. Timm, 2010 BCSC 800, the plaintiff was a
passenger in the defendant’s truck.  She suffered a brain injury, leading to
difficulties with her final year of high school.  She suffered memory loss,
chronic back pain and headaches.  The brain injury had a significant effect on
her ability to maintain employment.  She was awarded $152,000.

[94]        
In Danicek v. Alexander Holburn Beaudin & Lang, 2010
BCSC 1111, the plaintiff suffered injuries from a collision and fall on a dance
floor.  She suffered severe headaches and was unable to work.  The headaches
persisted.  Her post-concussive symptoms included physical, cognitive and
emotional difficulties.  The injury “had a profound effect on her life”.  Her
headache pain persisted to the date of trial, some 9 years after the accident. 
She was completely disabled for 8 months.  The Court found she would likely be
incapable of ever working at the job she held before the accident. 
Non-pecuniary damages of $185,000 were awarded.

[95]        
In Adamson v. Charity, 2007 BCSC 671, the 42-year-old plaintiff’s
vehicle was struck.  He suffered a mild traumatic brain injury, chronic pain
syndrome, major depression, headaches and hearing loss.  He would be
unemployable for the rest of his life.  He was awarded $200,000.

[96]        
The injuries of the plaintiffs in these cases were substantially more
severe than those of Ms. Orcutt.  Ms. Orcutt suffered soft tissue injuries, a
mild traumatic brain injury and trauma induced thoracic outlet syndrome.  She
suffered memory loss, but that has improved.  Indeed, many of her symptoms have
eased considerably.  Her examination by Dr. Travlos in 2011 and his
observations persuade me that her pain level is less than described in her
evidence.

[97]        
The accident has had a serious impact on her competitive figure skating
and her progress towards a career in school teaching, but there was no period
of total disability and she has been able to continue with many activities she
enjoys.

[98]        
I have reviewed a number of the decisions referred to me by the
defendant: Baxter v. Jamal, 2010 BCSC 289; Peterson v. Ram,
2008 BCSC 252; Langley v. Heppner, 2011 BCSC 179; Singh v.
Clay, 2011 BCSC 1172; De Gaye v. Butler, 2011 BCSC 1798; Ho
v. Dosanjh, 2010 BCSC 845; and Durand v. Bolt, 2010 BCSC 480.

[99]        
Of course the plaintiff’s circumstances in each case are singular and distinct. 
Some of these cases involve depression.  Thankfully, that is not present here. 
Nonetheless, the cases read together are instructive as to the range of damages
in analogous cases.

[100]     Having
considered the plaintiff’s injuries and the factors listed above, in light of
the case law, I assess non-pecuniary damages at $85,000.

Loss of Earning Capacity

[101]    
Mr. Justice Savage in Parker v. Lemmon, 2012 BCSC 27 at para. 42,
summarized Madam Justice Garson’s decision regarding loss of future earning
capacity in Perren v. Lalari, 2010 BCCA 140, as follows:

(1)        A plaintiff must first prove there is a real and
substantial possibility of a future event leading to an income loss before the
Court will embark on an assessment of the loss;

(2)        A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation;

(3)        A plaintiff may be able to prove that there is a
substantial possibility of a future income loss despite having returned to his
or her employment;

(4)        An inability to perform an occupation that is not
a realistic alternative occupation is not proof of a future loss;

(5)        It is not the loss of earnings but rather the loss
of earning capacity for which compensation must be made;

(6)        If the plaintiff discharges the burden of proof,
then there must be quantification of that loss;

(7)        Two available methods of quantifying the loss are
(a) an earnings approach or (b) a capital asset approach;

(8)        An earnings approach will be more useful when the
loss is more easily measurable;

(9)        The capital asset
approach will be more useful when the loss is not easily measurable.

[102]     Ms. Orcutt’s
claim for future income loss is substantial: $650,000.  It is based on the
assumption that she would have worked as an elementary school teacher
commencing in September 2013 and can now only work in an office environment.  A
second assumption is that she will take longer to obtain a college certificate
or diploma and as a result her earning capacity will be some substantial amount
below that of an elementary school teacher.  The third assumption is that Ms.
Orcutt is only capable of working part-time.

[103]     The
evidence does not support all of these assumptions.  Dr. Nix, Dr. Travlos
and Mr. Nordin are all of the view that she is capable of completing a
bachelor’s degree.  I agree with that.

[104]     Dr. Travlos
encouraged the plaintiff to pursue her goal of becoming an elementary school
teacher.

[105]     Mr. Nordin
was of the view that she could not handle the demands of a teaching job.  Dr.
Nix felt that she was capable of it.  I accept Mr. Nordin’s opinion in this
regard.  The demands of the classroom might well exceed her capacity for
multi-tasking in a noisy environment.  The plaintiff testified that she did not
feel she was capable of working as a full-time teacher or working full-time in
an office environment.  As I stated above, Dr. Travlos thought she was capable
of more than she did.  I agree with Dr. Travlos on this point.

[106]     That said,
one cannot expect the plaintiff to undertake a long course of specialized
education, towards obtaining a teaching certificate, only to learn upon
graduating, or in the course of her practicum, near graduation, that she lacks
the capacity to work in a classroom environment.

[107]     I conclude
that Ms. Orcutt has the capacity to obtain a university degree.  I conclude that
she is also capable of working as an educational assistant.

[108]     Her loss
of future earnings assessment is based on the helpful evidence and analysis of accountant
Robert Carson.  She would have earned more as an elementary teacher.  Teaching
positions are better paying than other occupational groups with a university
degree.

[109]     Ms. Orcutt
has clearly suffered an income loss.  The assessment of her loss must take into
consideration the fact that Ms. Orcutt was not guaranteed admission to the
AHCOTE program.  There is also a substantial contingency that because of the
accident she will be unable to work full-time.  But it is only a contingency. 
I am in agreement with those who expressed the opinion that generally, she is
capable of full-time work.  Based on all of these factors, I assess her loss of
earning capacity damages at $225,000.

Special Damages

[110]     Ms. Orcutt’s
claim for various items was provided and totals $10,322.50.  There are, in
addition, transportation expenses incurred in the many trips to Vancouver.  I
award $13,000 for special damages, including transportation expenses.

Cost of Future Care

[111]    
The approach of a trial judge in determining damages for future care was
described in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), aff’d
(1987), 49 B.C.L.R. (2d) 29 (CA):

The award for future care is
based on what is reasonably necessary on the medical evidence to promote the
mental and physical health of the plaintiff.

[112]    
 Mr. Justice Masuhara in Izony v. Weidlich, 2006 BCSC
1315, explained a sensible limitation on this principle. At para. 74, he said
that future care costs must be reasonable in the sense that the plaintiff will
be likely to incur them:

I therefore do not think it
appropriate to make a provision for items or services that the plaintiff has
not used in the past… or for items or services that it is unlikely he will use
in the future.

[113]     The
defendant referred the Court to Penner v. Insurance Corporation of British
Columbia, 2011 BCCA 135 where the British Columbia Court of Appeal
quoted comments by Johnston J. in Travis v. Kwon, 2009 BCSC 63:

[109]    Claims for damages for cost of future care have
grown exponentially following the decisions of the Supreme Court of Canada in
the trilogy of decisions usually cited under Andrews. v. Grand & Toy,
Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

[110]    While such claims are no longer confined to
catastrophic injury cases, it is useful from time to time to remind oneself
that damages for future care grew out of catastrophic injuries and were
intended to ensure, so far as possible, that a catastrophically injured
plaintiff could live as complete and independent a life as was reasonably
attainable through an award of damages.

[111]    This is worth
mentioning because the passage of time has led to claims for items such as, in
this case, the present value of the future cost of a long-handed duster,
long-handed scrubber, and replacement heads for the scrubber, in cases where
injuries are nowhere near catastrophic in nature or result.

[114]    
The Court of Appeal went on to say:

This is a reminder that a little
common sense should inform claims under this head, however much they may be
recommended by experts in the field.

[115]     Ms. Jewett
examined the plaintiff and made a number of recommendations which she felt were
“necessary to enable Ms. Lacey Orcutt to maintain a reasonable level of
functioning now and in the future.” Amongst others, they include assistive
devices (such as an ergonomic office chair, laptop holder and document holder),
exercise equipment, medical equipment and pain management aides, sunglasses,
physiotherapy or Feldenkrais therapy, a gym membership and seasonal house
cleaning and maintenance.

[116]     The total
cost of Ms. Jewett’s recommendations over Ms. Orcutt’s lifetime is $110,606.

[117]    
I found Ms. Jewett’s report to be thorough.  Her evidence was in many
ways persuasive, but she described a plaintiff whose needs exceed those of this
plaintiff.  I have not found the plaintiff’s condition as serious as the basis
of the assumptions made by Ms. Jewett.

[118]    
The plaintiff will require Feldenkrais therapy and the travel costs to
attend it.  Massage therapy is also indicated.  The therapeutic mattress,
ongoing gym membership and a measure of assistance with home maintenance are
reasonable.

[119]    
I assess $48,000 as the cost of future care.  It is awarded.

SUMMARY

[120]    
I find that the defendant is entirely responsible for the accident.  Ms.
Orcutt is entitled to damages as follows:

[121]    
Costs may be spoken to.

“B.J.
Brown J.”
for the Honourable Mr. Justice Kelleher